
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1221                                    UNITED STATES,                                      Appellee,                                          v.                               LUIS E. OVALLE-MARQUEZ,                                Defendant - Appellant.                                 ____________________          No. 93-1458                                    UNITED STATES,                                      Appellee,                                          v.                              MIGUEL A. RIVERA-SANTIAGO,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Carter,* District Judge.                                          ______________                                        ____________________          *  Of the District of Maine, sitting by designation.                                _____________________               Beverly P. Myrberg for appellant Luis E. Ovalle-M rquez.               __________________               H.  Manuel  Hern ndez,  by  Appointment of  the  Court,  for               _____________________          appellant Miguel A. Rivera-Santiago.               Jos  A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with               ________________________          whom  Guillermo Gil,  United States  Attorney, was  on  brief for                _____________          appellee.                                 ____________________                                  September 29, 1994                                 ____________________                                         -2-                    TORRUELLA,  Circuit Judge.    A grand  jury returned  a                                _____________          seven-count  indictment  charging   nine  defendants,   including          appellants Luis Enrique  Ovalle-M rquez ("Ovalle") and Miguel  A.          Rivera-  Santiago  ("Rivera"),  with  offenses  related   to  the          importation of cocaine, and possession of cocaine with the intent          to distribute.   A trial  was held and  the jury  returned guilty          verdicts  against  Ovalle  and  Rivera  on four  of  the  counts.          Pursuant to  the applicable  sentencing guidelines,  the district          court  then sentenced  both Ovalle  and Rivera  to terms  of life          imprisonment.   Ovalle  and Rivera  now appeal,  challenging both          their convictions  and their sentences  on a variety  of grounds.          We affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    A.  Facts                    A.  Facts                    The testimony and other evidence properly introduced at          trial,  viewed  in  the light  most  favorable  to the  verdicts,          established  the following facts.   See United  States v. Rivera-                                              ___ ______________    _______          Santiago, 872  F.2d 1073, 1078-79  (1st Cir.), cert.  denied, 492          ________                                       _____________          U.S. 910 (1989).                    A  paid  government   confidential  informant,   Willie          Linder,   alerted  special   agents  of   the   Drug  Enforcement          Administration  ("DEA") to  a drug  trafficking operation  in the          Lajas/Cabo Rojo area of  Puerto Rico.  Linder, a  German citizen,          is a fisherman who has lived in Puerto Rico since 1960.                      On November  27, 1991, Linder met  with Ovalle, Rivera,          co-defendants  Sergio   Monteagudo-Mart nez  ("Monteagudo"),  and                                         -3-          Humberto   Artunduaga-Alvarado  in   Las  Cuebas,   Puerto  Rico.          (Monteagudo entered into a plea agreement with the government and          testified  for   the  prosecution).    At   this  meeting,  these          individuals planned  to  import approximately  800  kilograms  of          cocaine  (approximately   22  bales),  which  was   to  be  first          airdropped in waters off the coast of the Dominican Republic, and          then  brought  into  Puerto  Rico.   The  meeting's  participants          planned to use  two vessels - Linder would captain  his own boat,          and Monteagudo would captain the other boat.  These vessels would          depart from  Puerto Rico  for a location  off the coast  of Punta          Espada, Dominican  Republic, where, with  the help of  some other          people  unknown to  them, they  would load  the cocaine  onto the          vessels.   Tentatively, they scheduled the  smuggling venture for          sometime between December 8-13, 1991.                         On November  29, 1991, Ovalle and  Artunduaga delivered          $1000 to Linder for the purpose  of enabling Linder to repair his          boat.  Thereafter, and up until December 9, Ovalle and Artunduaga          sporadically met with Linder  to inquire about the status  of the          repairs  to his boat, and to provide Linder with additional money          to complete the repairs.                      Rivera apparently  became suspicious of Linder, and the          defendants did not then include Linder in the smuggling operation          planned  for early  December.   On  or  about December  7,  1991,          Ovalle, Rivera and Monteagudo, as well as others, met to finalize          the plans for the smuggling operation, without Linder's help.  At          this December 7  meeting, Rivera gave Monteagudo two  firearms, a                                         -4-          .38 caliber revolver and a .22 caliber pistol.  Ovalle loaded the          firearms for Monteagudo.                    On  December 9,  1991, Monteagudo,  co-defendant Santos          Victor  Chala-Ramos  ("Chala"),  and   two  other  men  from  the          Dominican Republic, picked up 21 bales, containing  approximately          800  kilograms of  cocaine,  off  the  coast  of  Santo  Domingo,          Dominican Republic, after giving a pre-arranged signal to a plane          flying  nearby.   Because one  of the  boats that  Monteagudo had          planned to use to pick up  the cocaine was damaged, he decided to          take one boat  with 11 bales  of cocaine, and  leave 10 bales  of          cocaine hidden  on a nearby beach, guarded by the two man crew of          the damaged boat.                      On December 11, 1991, Monteagudo proceeded to import 11          of  the 21 bales  of cocaine into Puerto  Rico.  Unknown persons,          however, began  to pursue  Monteagudo's boat, and  Monteagudo and          the  other  Dominican  man  on  board  (known  to  Monteagudo  as          "Queque"), threw seven bales into the water in an attempt to halt          the pursuit and minimize the loss of the entire load.  Monteagudo          eventually  delivered  the remaining  four  bales  to Ovalle  and          Rivera.                    The defendants then arranged to import the rest  of the          cocaine that had been left behind in  the Dominican Republic.  On          December 12, Ovalle and  Rivera met with Linder to  survey areas,          including Playita Rosada in La Parguera, Puerto Rico for possible          landing sites to import the additional cocaine.                    On December 13, Ovalle,  Rivera and Artunduaga met with                                         -5-          Linder at his home to obtain his help in importing  the other ten          bales  of cocaine.  Linder was instructed  to meet with Ovalle in          Ponce  for further instructions.  Linder then met with Ovalle and          another man  as arranged.   The men then  went to Rivera's  home,          where Linder left  his car,  and Rivera, Ovalle,  Linder and  the          other man then proceeded to a pier in Ponce.  Monteagudo met them          there,  and Monteagudo  and Linder  then departed  in a  boat for          Lajas,  Puerto Rico.   Sometime during the  day, Linder contacted          DEA agents and advised them of the planned venture.                    On December 14,  Monteagudo and Linder departed  Puerto          Rico to a rendezvous point  near Saona, Dominican Republic, where          they were assisted by several Dominican men in the loading of the          remaining ten bales of cocaine (372 kilograms).  On the following          day,  Monteagudo and Linder returned to Playita Rosada, where DEA          agents seized  the cocaine and  arrested Monteagudo.   DEA agents          subsequently arrested Ovalle and Rivera.                    B.  Procedural Background                    B.  Procedural Background                    On  June  3,  1992,  a grand  jury  returned  a  second          superseding seven count indictment against Ovalle and Rivera, and          seven other defendants.   Counts  One and Two  of the  indictment          charged  the defendants  with conspiring  to import,  and possess          with  the intent  to distribute,  approximately 800  kilograms of          cocaine from November 27 to December 17, 1991, in violation of 21          U.S.C.    841(a)(1),  846, 952(a) and  963.  Count  Three charged          the  defendants  with  aiding  and abetting  the  importation  of          approximately  418 kilograms of  cocaine on December  11, 1991 in                                         -6-          violation of 21 U.S.C.    952(a) and 18  U.S.C.   2.  Count  Four          charged the  defendants with  aiding and abetting  the possession          with intent to distribute  approximately 150 kilograms of cocaine          on December 11, 1991,  in violation of 21 U.S.C.    841(a)(1) and          18 U.S.C.   2.   Counts Five and Six charged  the defendants with          aiding and  abetting the importation, and  possession with intent          to  distribute, 372 kilograms of cocaine on December 15, 1991, in          violation of 21 U.S.C.   841(a)(1) and 952(a), and 18 U.S.C.   2.          Count Seven charged  the defendants with aiding  and abetting the          use and carrying  of firearms in relation  to a drug  offense, in          violation of 18 U.S.C.   924(c)(1).                     The trial  commenced on August  25, 1992, and  the jury          returned guilty verdicts against Ovalle and Rivera on Counts One,          Two,  Five and Six.   The jury  acquitted all  of the defendants,          including Ovalle and Rivera, of the charges in Counts Three, Four          and Seven.                    On  January  22,  1993,  the court  held  a  sentencing          hearing and determined that Ovalle's  total offense level was 46,          and that his  Criminal History Category  was I, therefore  making          his guideline sentencing range life imprisonment.  The court then          sentenced   Ovalle   to   four  concurrent   sentences   of  life          imprisonment.                      At  a sentencing hearing  on April  2, 1993,  the court          determined that Rivera's total offense level was 47, and that his          Criminal History Category was I, which also mandated a sentencing          guideline range of  life imprisonment.  The court  then sentenced                                         -7-          Rivera to four concurrent sentences of life imprisonment.                      Rivera and  Ovalle now  allege a  number of  grounds to          challenge both their convictions and sentences.                                         -8-           II.  DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION?           II.  DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION?                _________________________________________________________                    Rivera  contends  that  the  district  court improperly          limited  his   counsel's  cross-examination  of   two  government          witnesses, and that  this denied Rivera his Sixth Amendment right          to confront adverse witnesses.   The Confrontation Clause of  the          Sixth Amendment  guarantees an  accused in a  criminal proceeding          the  right  "to be  confronted with  the witnesses  against him."          U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678                                 ________    ___________          (1986);  United  States v. Alvarez,  987 F.2d 77, 82  (1st Cir.),                   ______________    _______          cert.  denied, 114 S. Ct.  147 (1993).   The Confrontation Clause          _____________          secures an  accused the right to  cross-examine adverse witnesses          in order to test "the believability of a witness and the truth of          his testimony."  United States v. Carty, 993 F.2d 1005, 1009 (1st                           _____________    _____          Cir. 1993) (quoting Davis  v. Alaska, 415 U.S. 308,  316 (1974));                              _____     ______          Alvarez, 987 F.2d at 82 (citations omitted).  The right to cross-          _______          examine an adverse  witness, however, is  not unlimited.   United                                                                     ______          States v. Corgain, 5 F.3d  5, 8 (1st Cir. 1993); Carty,  993 F.2d          ______    _______                                _____          at 1009; Alvarez, 987 F.2d at 82.                   _______                      [T]rial   judges  retain   wide  latitude                      insofar  as  the Confrontation  Clause is                      concerned to impose reasonable  limits on                      such cross-examination  based on concerns                      about,  among  other things,  harassment,                      prejudice, confusion of  the issues,  the                      witness' safety, or interrogation that is                      repetitive or only marginally relevant.            Van  Arsdall, 475 U.S. at 679; see  also Carty, 993 F.2d at 1010;          ____________                   _________ _____          Alvarez, 987  F.2d at 82; United  States v. Moore, 923  F.2d 910,          _______                   ______________    _____          913 (1st Cir. 1991).                    We  review a  trial  court's decision  to limit  cross-                                         -9-          examination under an  abuse of discretion  standard.  Carty,  993                                                                _____          F.2d  at 1011; United States v. Twomey,  806 F.2d 1136, 1140 (1st                         _____________    ______          Cir. 1986).                        In  order to  establish  that  the  trial                      judge abused his  discretion in  limiting                      cross-examination,  the   defendant  must                      show that the  restrictions imposed  were                      clearly prejudicial.  . . .   An abuse of                      discretion has occurred only if  the jury                      is  left without  "sufficient information                      concerning  formative  events  to make  a                      'discriminating appraisal' of a witness's                      motives and bias."            Twomey,  806 F.2d at 1140 (quoting United States v. Campbell, 426          ______                             _____________    ________          F.2d  547,  550 (2d  Cir.  1970))  (internal citations  omitted).          Rivera has made no such showing.                    Rivera contends that his right to cross-examine adverse          witnesses  was unfairly  restricted  on four  occasions.   First,          Rivera argues that  he was not  fully permitted to  cross-examine          the confidential informant, Linder, regarding whether Linder  had          ever been a member of "Hitler's Youth League," or a member of the          French Foreign  Legion, an organization known  for being soldiers          of  fortune.  Rivera claims  that this testimony  was relevant in          order to show that Linder was familiar with guns, and that Linder          was a mercenary willing to do anything for money.                    With respect to Linder's alleged membership in Hitler's          Youth League, Rivera's counsel failed to establish any foundation          showing how this line of questioning would establish that  Linder          was  familiar with  guns.   The record  indicates that  after the          trial judge  very patiently informed  counsel that  he needed  to          establish the relevance of  this question, and that he  needed to                                         -10-          lay some  sort of foundation for this  question, Rivera's counsel          did not pursue this specific line of questioning.  Thus, counsel,          and not the court, effectively cut off his own cross-examination.          Moreover, the fact that Linder may have been a member of Hitler's          Youth  League  when he  was  9  years  old  was of  virtually  no          relevance to this case, and the trial judge would have acted well          within his discretion in not permitting this line of questioning.          With respect to Linder's membership in the French Foreign Legion,          the record shows that Rivera's  counsel was able to cross-examine          Linder adequately, and that Linder admitted that he learned about          guns while in the French Foreign Legion, and that he was paid for          serving in this organization.1                     Second,  Rivera  contends  that  the  court  improperly          limited his  cross-examination of Monteagudo with  respect to his          attempts to cast doubt  on Monteagudo's veracity and objectivity.          Rivera's  counsel  asked  Monteagudo   about  the  true  name  of          "Queque,"  the  man  who   had  accompanied  Monteagudo  when  he          attempted to smuggle the eleven bales of cocaine into Puerto Rico                                        ____________________          1   Rivera claims that he was  prejudiced by the fact that he was          only  able  to  pursue his  cross-examination  regarding Linder's          involvement in the French Foreign Legion after being "required to          fully explain the basis  of this line of questioning,  within ear          shot of the witness,  thereby revealing his defense strategy  . .          ."   After examining the record, we find Rivera's allegation that          the trial  court somehow  required  him to  disclose his  defense          strategy   within  hearing   distance  of   the  witness   to  be          preposterous.  Moreover, if Rivera's counsel was worried that the          witness  would  overhear him  explain the  basis  of his  line of          questioning,  counsel  should  have   kept  his  voice  down,  or          requested  that the  witness be  repositioned during  the sidebar          conference.                                         -11-          on December 11,2 and  the true name  of Monteagudo's wife, in  an          attempt to show that "Queque" and his wife were cousins, and that          Monteagudo had a reason to steal part of  the shipment of cocaine          with "Queque."                      Defense  Counsel:    Okay,  So  you  were                      traveling  with  this  fellow Queque  and                      he's Dominican like you; yes or no?                      Monteagudo:  Yes, sir.                      Defense Counsel:  And  who is a friend of                      yours?                      Monteagudo:  Yes, sir.                      Defense Counsel:   And whose real name is                      Nelson Mota; yes or no?                      Monteagudo:  I don't know his true name.                      Defense  Counsel:   Your  wife's  name is                      Iris Mota; isn't it?                      Prosecutor:  We have an objection.          A  lengthy sidebar  conference was  then held,  and the  district          court stated that defense counsel could ask Monteagudo if he knew          what  "Queque's"  true name  was,  but  that  counsel  could  not          interject Nelson Mota's name into the question unless he had some          good  faith basis to  show that "Queque's" true  name was in fact          Nelson  Mota.   Defense  counsel  stated  that his  investigation          showed that "Queque's" true name was Nelson Mota, but counsel was          not  able to  point  to any  specific  fact, or  to  specifically          identify any potential witness  who would be able to  support the                                        ____________________          2   In the indictment,  "Queque" was  identified as  co-defendant          Carlos Cruz-Santiago,  and he remained a  fugitive throughout the          proceedings.                                         -12-          conclusion  of his  supposed investigation.   The  district court          then refused to  permit Rivera's  counsel to pursue  the line  of          questioning which  expressly linked the  name of  Nelson Mota  to          "Queque."                     The  district court  did not  abuse its  discretion in          determining that  Rivera's counsel had failed to establish a good          faith basis to warrant further inquiry regarding the true name of          "Queque."  See,  e.g., Carty, 993 F.2d at  1010; Rivera-Santiago,                     ___   ____  _____                     _______________          872 F.2d  at 1085.  While the  purpose of cross-examination is to          impeach  the  credibility  of  a  witness,  the  basis  for   the          impeachment  cannot   be   speculation  and   innuendo  with   no          evidentiary  foundation.    Rivera-Santiago,  872  F.2d  at 1085.                                      _______________          There  was  simply no  evidentiary  basis  for defense  counsel's          theory  that  "Queque" and  Monteagudo's  wife,  Iris Mota,  were          related.   Nor  was there  any substantiated basis  showing that,          based  on  this  alleged relationship,  Monteagudo  and  "Queque"          collaborated to steal some of the cocaine.                        The third  alleged  instance of  the  court  improperly          curtailing    cross-examination   involved    defense   counsel's          questioning  of  Monteagudo  regarding  the  terms  of  his  plea          agreement with  the government.   Specifically, Rivera's  counsel          asked  Monteagudo if when he entered into the plea agreement, the          government  told  him  that  if  he  cooperated   there  was  the          possibility that he could  go free without serving any  jail time          at all.  Monteagudo replied no.  Rivera's  counsel then asked him          if he  otherwise knew that  there was a  possibility he could  go                                         -13-          free  if  he  entered  into  a  plea  agreement.  The  government          objected,  and the  court sustained  the objection,  stating that          Monteagudo had just testified that he had not been told that.                       A review of the record makes it clear that the jury was          well aware  of the fact that  Monteagudo had entered into  a plea          agreement  with  the  government,   and  that  he  would  receive          favorable treatment in  exchange for  his testimony.   On  direct          examination,  Monteagudo stated that  he had entered  into a plea          agreement  with the  government, and  the agreement  was admitted          into  evidence.   The  jury  could therefore  see  precisely what          benefits Monteagudo  was given  in exchange for  his cooperation.          On cross-examination, Monteagudo also stated that he knew  he was          facing a  sentence  of  15  years  to life  when  he  decided  to          cooperate with the government.   This evidence provided the  jury          with sufficient information to make a discriminating appraisal of          Monteagudo's motives and  biases.3  See,  e.g., Twomey, 806  F.2d                                              ___   ____  ______                                        ____________________          3  After the court excluded the question of Rivera's counsel, the          court stated that it  would instruct the jury regarding  the plea          agreement.    In  its  final  charge,  the  court  explained  the          circumstances surrounding the testimony of a co-defendant who had          pled guilty.  The court stated:                      In  this case,  there has  been testimony                      from a government witness who pled guilty                      after entering into an agreement with the                      government to testify.  There is evidence                      that  the  government  agreed to  dismiss                      some  charges  against  the   witness  in                      exchange  for  the witness'  agreement to                      plead  guilty and  testify at  this trial                      against the defendants.                      The government also promised to bring the                      witness' cooperation to the  attention of                      the sentencing court,  and you all  heard                                         -14-          at 1139-40.                    As  a  fourth  ground,  Rivera claims  that  the  court          improperly cut off his cross-examination  of Monteagudo regarding          his understanding  of his  oath to  tell  the truth.   The  court          sustained  an  objection  by  the  prosecutor  regarding  whether          Monteagudo  knew that  he  was suppose  to tell  the truth.   The          record shows  that Rivera's  counsel had previously  made several          references to the fact that Monteagudo was under oath and that he          had an  obligation to tell the  truth.  On the  occasion that the          court  sustained   the  objection,  it  acted   well  within  its          discretion by cutting off repetitive questioning.                      As  a final matter, we have  reviewed the entire cross-                                        ____________________                      that.   The  government  is permitted  to                      enter  into this kind  of plea agreement.                      You  in turn may  accept the testimony of                      such a witness and convict the defendants                      on the basis of this testimony alone,  if                      it convinces you of the defendants' guilt                      beyond a reasonable  doubt.  However, you                      should bear in  mind that  a witness  who                      has  entered into  such an agreement  has                      an interest  in this case  different than                      the  ordinary  witness.    A  witness who                      realizes that  he may be  able to  obtain                      his  own  freedom  or receive  a  lighter                      sentence by giving testimony favorable to                      the prosecution has  a motive to  testify                      falsely.  Therefore, you must examine the                      testimony with caution and weigh  it with                      great  care and if after scrutinizing his                      testimony you decide to accept it you may                      give it whatever weight, if any, you find                      it deserves.          We  do  not believe  that  the  court improperly  limited  cross-          examination regarding the plea agreement.   Moreover, in light of          this final instruction, we do not believe that Rivera has grounds          to  complain that  any  limitation on  cross-examination in  that          regard prejudiced his ability to attack Monteagudo's credibility.                                         -15-          examination of both Linder and Monteagudo.  The cross-examination          of each witness was  thorough, and we believe  that the jury  had          sufficient  information  regarding  the  witnesses'  motives  and          biases  to  judge  the  credibility  of  the  witnesses  and  the          truthfulness of their testimony.                           III.  PROSECUTORIAL MISCONDUCT?                           III.  PROSECUTORIAL MISCONDUCT?                                 ________________________                    Rivera  and  Ovalle  both  claim  that  the  prosecutor          engaged in  misconduct by  improperly tying the  defendants to  a          conspiracy with Colombian  ties, despite the lack  of evidence of          any  such  international drug  ring.    Specifically, Rivera  and          Ovalle claim that references in the prosecutor's closing argument          to certain testimony by Monteagudo were improper.  The prosecutor          stated:                      This is a well organized conspiracy.  And                      from where  you  can reason  that?    You                      remember November 27, the planning.  From                      where  that  cocaine  was  coming?   From                      Colombia, South America.   Therefore, you                      _______________________                      can reasonably  infer that some  of these                      defendants  have  contacts  in  Colombia,                                                      ________                      because  otherwise who would call them to                      bring and to make the airdrop . . . .                      This   is  an   organization.     It's  a                      conspiracy not  only in Puerto  Rico, but                      also in Colombia.                              ________                     The prosecutor also argued:                      It's the fact that when Sergio Monteagudo                      communicated  with  the plane  using this                      code the  plane responded.  He  knew what                      that  man at  the sea was  talking about.                      Therefore,  someone   in  the  conspiracy                      contacted back to Colombia and say to the                                        ________                      plane or some person:   Hey, the code for                      the load,  the air  drop of  the cocaine,                      that the code is "Leandro" and "Matilde."                                         -16-          Rivera  and  Ovalle suggest  that  the remarks  were  intended to          inflame  the passions of the jury, members of which are bombarded          daily with superheated rhetoric of the government's war on drugs,          and  the prominent role that Colombia plays as a principal source          of drugs.    To warrant  reversal of a conviction  on the grounds          of  a prosecutor's improper jury argument, a court must find that          the  prosecutor's remarks  were both  inappropriate  and harmful.          See United States v. Young, 470  U.S. 1, 11-12 (1985).  Arguments          ___ _____________    _____          which  urge a  jury to  act  in any  capacity other  than as  the          impartial arbiter  of the  facts in the  case before it,  such as          arguments  that  serve  no  purpose other  than  to  inflame  the          passions and prejudices of the jury, are improper.  United States                                                              _____________          v. Manning, 23 F.3d 570, 574 (1st Cir. 1994); Arrieta-Agressot v.             _______                                    ________________          United States, 3 F.3d 525, 527 (1st Cir. 1993).            _____________                    We do  not believe that the prosecutor's remarks in his          closing were  improper.   During the trial,  Monteagudo testified          that  Ovalle  had  told him  that  the  cocaine  was coming  from          Colombia, and this was  an admissible hearsay statement of  a co-          conspirator.4   See Fed. R.  Evid. 801(d)(2)(E).   In his closing                          ___                                        ____________________          4    Defense counsel  argues that  the  court erred  in admitting          Monteagudo's  testimony that Ovalle had told  him the cocaine was          coming from  Colombia.   Defense counsel had  previously objected          that Monteagudo could not  testify that he knew that  the cocaine          was  coming from  Colombia unless  he in  fact had  such personal          knowledge.   The court  effectively sustained this  objection and          Monteagudo did not  testify that he  had personal knowledge  that          the cocaine  was coming from  Colombia.  Rather,  Monteagudo then          testified that he only had second hand knowledge that the cocaine          came  from  Colombia  based on  Ovalle's  statement  to him,  and          defense counsel  did not object to this  testimony.  Any error in          the  admission of the evidence was not preserved for appeal.  See                                                                        ___          United States v. Rosales, 19 F.3d 763, 765 (1st Cir.  1994).  Our          _____________    _______                                         -17-          argument, the prosecutor  then did what he was  entitled to do --          ask the  jury to  draw warrantable  inferences from  the evidence          admitted  during  trial  --  that the  conspiracy  was  importing          cocaine  from  Colombia into  Puerto  Rico.    United  States  v.                                                         ______________          Tajeddini,  996  F.2d  1278,  1283  (1st  Cir.  1993)  (citations          _________          omitted); see  also United States  v. Moreno, 947 F.2d  7, 8 (1st                    _________ _____________     ______          Cir. 1991); United  States v. Abello-Silva,  948 F.2d 1168,  1182                      ______________    ____________          (10th Cir.  1991), cert. denied, 113 S. Ct. 107 (1992).  The jury                             ____________          thus  had a complete view  of the conspiracy's  efforts to import          cocaine -- conspirators picked up cocaine in Colombia, airdropped          it to waiting associates off the coast of the Dominican Republic,          who then  transported  the  cocaine  by boat  into  Puerto  Rico.          Despite the contentions of Ovalle and Rivera to the contrary, the          prosecutor's  remarks were not the type, and did not approach the          level,  of  rhetoric  we have  previously  found  to  be improper          because  it served no other  purpose but to  inflame the passions          and  prejudices of the jury.  See, e.g., Arrieta-Agressot, 3 F.3d                                        ___  ____  ________________          at 527  (finding that  prosecutor's remarks  which urged  jury to          consider case as a battle in the war against drugs and defendants          as enemy soldiers,  and remarks which referred  to the corruption          of   "our  society"   and  the   poisoning  of   "our  children,"                                        ____________________          standard of  review under  the circumstances is  therefore "plain          error," and we will reverse only if the error "seriously affected          the fairness,  integrity, or public reputation  of [the] judicial          proceeding."   Id. (citations omitted).  We answer the underlying                         __          question -- did the court err in admitting the evidence -- in the          negative.  We do  not believe that the prejudice  associated with          admitting  Ovalle's statement  outweighed the  relevance of  that          evidence, and the court did not abuse its discretion in admitting          that statement.                                             -18-          inflammatory  and not  permissible  argument);  United States  v.                                                          _____________          Machor,   879  F.2d   945,  955-56   (1st  Cir.   1989)  (finding          ______          prosecutor's  remarks  in  closing  statement  that  cocaine  was          "poisoning  our community and our  kids die because  of this" was          inappropriate), cert. denied, 493 U.S. 1081 (1990).5                          ____________                       IV.  INEFFECTIVE ASSISTANCE OF COUNSEL?                       IV.  INEFFECTIVE ASSISTANCE OF COUNSEL?                            _________________________________                    Rivera  claims  on  appeal  that  he  was  deprived  of          effective assistance of  counsel at trial, because of  an alleged          conflict  of  interest  based  on the  relationship  between  his          attorney and the attorney who represented Monteagudo, who was one          of  the main  government witnesses  during the  trial.   Rivera's          attempt to raise this claim for  the first time here on appeal is          ill-timed.     "[A]  fact-specific  claim  of  ineffective  legal          assistance cannot  be  raised initially  on  direct review  of  a          criminal  conviction, but  must  originally be  presented to  the          district court."  United  States v. Hunnewell, 891 F.2d  955, 956                            ______________    _________                                        ____________________          5  Ovalle and Rivera argue that there was a continuing pattern of          prosecutorial  misconduct in  this case  due to  the government's          endless objections during cross-examination,  derogatory comments          about defense counsel in front of the jury, demeaning lectures to          defense  counsel,  and  other   abusive  tactics  which  deprived          defendants  of  a fair  trial.   Specifically,  they point  to an          incident where the  prosecutor allegedly  improperly vouched  for          the  credibility of  a  government witness  by  stating that  the          witness was telling the truth.   We have reviewed the record with          respect to this instance,  and after considering the prosecutor's          alleged  indiscretion  in  the  context of  an  awkward  colloquy          following  defense  counsel's  question  regarding   whether  the          witness  understood he had an  obligation to tell  the truth, and          the court's subsequent instruction  that it was up to the jury to          determine if the witness was telling the truth, we do not believe          that  there  was any  prejudicial error.   Additionally,  we have          reviewed  the entire  record with  a view  for the  other alleged          improprieties,  and we do not believe that there was a continuing          pattern of prosecutorial misconduct.                                         -19-          (1st  Cir. 1989) (quoting United  States v. Costa,  890 F.2d 480,                                    ______________    _____          482-83 (1st  Cir. 1989)) (other  citations omitted).   Rivera did          not  present  a claim  to the  district  court showing  that this          conflict of interest deprived  him of effective legal assistance.          Additionally,  the record is  not developed  enough as  a factual          matter to  enable us to  consider this issue.   See, e.g., Costa,                                                          ___  ____  _____          890  F.2d  at  483.    We  therefore  reject  Rivera's  claim  as          premature, but do so without prejudice to Rivera's right to bring          such a claim under 28 U.S.C.   2255.                                V.  SENTENCING ISSUES                                V.  SENTENCING ISSUES                                    _________________                    A.  Standard of Review                    A.  Standard of Review                    Ovalle  and  Rivera   challenge  the  district  court's          application of  the sentencing  guidelines  in determining  their          sentences  on a number  of grounds.   When  we review  a district          court's  application  of a  sentencing  guideline,  we utilize  a          bifurcated  process.   First,  we  review  the guideline's  legal          meaning and scope de novo.  United States v. Brewster, 1 F.3d 51,                            _______   _____________    ________          54  (1st Cir.  1993) (citing United  States v. St.  Cyr, 977 F.2d                                       ______________    ________          698,  701  (1st  Cir.  1992)).    Next,  we  review  the  court's          factfinding for clear error, giving  due deference to the court's          application of the guidelines to the facts.  18 U.S.C.   3742(e);          Brewster, 1  F.3d at 54  (citing St. Cyr, 977  F.2d at 701).   We          ________                         _______          also note that factbound matters related to  sentencing need only          be supported by a  preponderance of the evidence.   United States                                                              _____________          v.  Corcimiglia,  967 F.2d  724, 726  (1st Cir.  1992) (citations              ___________          omitted).                                         -20-                    B.  Rivera's Sentencing Challenges                    B.  Rivera's Sentencing Challenges                    Rivera was convicted of four  drug related charges.  At          sentencing, the court  accepted the Presentence Report's  ("PSR")          analysis  that  because Rivera  was  convicted  of conspiracy  to          import approximately 800 kilograms  of cocaine, and conspiracy to          possess with the intent to distribute approximately 800 kilograms          of cocaine,  the appropriate  sentencing guideline was    2Dl.1.6          The  base offense level  ("BOL") is determined  by   2D1.1(c)(2),          which  is based  on  the total  amount  of controlled  substances          involved.    Because  the  offenses  involved  800  kilograms  of          cocaine, the BOL was determined to be 40.7                      The  court then  enhanced the  BOL by  applying several          upward adjustments, over Rivera's  objections.  The court applied          a  two level  enhancement,  pursuant to  U.S.S.G.    2D1.1(b)(1),          because the court found that Rivera possessed firearms during the          commission of the  offense.   Pursuant to    3Bl.1(b), the  court          increased the  BOL by three  because it found  that Rivera  was a          supervisor  in  a  criminal   activity  involving  five  or  more          participants.  The court  also made an upward adjustment  of two,          under  U.S.S.G.     3C1.1,  based  on  its  finding  that  Rivera          obstructed justice by perjuring himself, and attempting to coax a          co-defendant  into providing  false  information  to a  probation                                        ____________________          6   All references to the  Sentencing Guidelines are  to the 1992          guidelines,  which were in effect at the time the court sentenced          Rivera and Ovalle.          7   Pursuant to    3D1.2(d), counts one,  two, five and  six were          grouped together into a combined offense level because the counts          involve the same general type of offense.                                         -21-          officer.  The court  determined that the total offense  level was          47,  and because  Rivera's Criminal  History Category  was I,  he          therefore   faced   a   guideline   sentencing  range   of   life          imprisonment.     The  court  then  sentenced   Rivera  to  serve          concurrent terms of life imprisonment as to the four counts.                                         -22-                      1.    The  District  Court's  Finding  Regarding  the                      1.    The  District  Court's  Finding  Regarding  the          Quantity        of Drugs          Quantity        of Drugs                    The district court determined Rivera's BOL on the basis          of  his and his co-conspirators' conduct, and the total amount of          drugs involved in the  conspiracy, approximately 800 kilograms of          cocaine.   The court rejected Rivera's contention  that it should          decrease  the  relevant  quantity  of cocaine  to  372  kilograms          because  Rivera  was  acquitted  on the  substantive  charges  of          importing and possessing  418 kilograms of  the 800 kilograms  of          cocaine involved in the case.8  The court stated:                      [I]n any  event, on the  preponderance of                      the  evidence the  Court finds  that this                      defendant  had  jointly  undertaken  this                      criminal activity and is held accountable                      of the  conduct of  others.  And  that he                      was found  guilty by  the  jury on  eight                      hundred kilos [in] the Count charged.                      And so that the Court finds that -- rules                      that  it's not  going  to  lessen by  two                      points the three hundred  and seventy-two                      kilo  amount  under the  relevant conduct                      issue.                    When  a defendant has been  convicted of a drug related          offense, a key factor in constructing the defendant's sentence is          the  quantity of narcotics attributable to him, a factor which is          determined  by looking at the sum of the charged conduct of which                                        ____________________          8   Rivera argues that in  denying each of Rivera's objections to          his sentence, the court incorrectly believed that  its hands were          tied and that the court believed that it was required as a matter          of  law to reject Rivera's  contentions.  Other  than making this          general  allegation,  however,  Rivera  does  not  point  to  any          specific instances.   Moreover, we  do not read  the record  this          way, and  do not believe  that the court  incorrectly interpreted          its  legal  authority  with  respect to  the  various  sentencing          issues.                                         -23-          the defendant was  convicted, plus his  "relevant" conduct.   See                                                                        ___          United  States v.  Garc a,  954  F.2d  12,  15  (1st  Cir.  1992)          ______________     ______          (citations omitted);  see also  United States v.  Innamorati, 996                                ________  _____________     __________          F.2d  456, 488 (1st Cir.),  cert. denied, 114  S. Ct. 409 (1993);                                      ____________          U.S.S.G.    2D1.1.   The  court determines  the drug  quantity by          looking at all acts "that were part of the same course of conduct          or common scheme or plan as the offense of conviction."  U.S.S.G.            1B1.3(a)(2); Garc a, 954 F.2d at  15; United States v. Mak, 926                         ______                   _____________    ___          F.2d 112, 113 (1st Cir. 1991).  In the case of jointly undertaken          criminal  activity,   such  as  a  conspiracy,   a  defendant  is          accountable for "all reasonably foreseeable acts and omissions of          others  in   furtherance  of  the   jointly  undertaken  criminal          activity,  that occurred during the  commission of the offense of          conviction, [or]  in  preparation for  that  offense .  . .  .  "          U.S.S.G.    1B1.3(a)(1)(B); see Innamorati,  996 F.2d at  488.  A                                      ___ __________          court's determination  regarding the amount of  drugs involved in          an offense  will only be  set aside  on appeal if  it is  clearly          erroneous.  See Innamorati, 996 F.2d at 489.                      ___ __________                     The jury convicted Rivera of Counts One and Two, which          charged Rivera  with conspiracy  to import,  and to  possess, 800          kilograms of cocaine.  At sentencing, the court  seemingly looked          to  U.S.S.G.    1B1.3(a)(1)(B)  and  found that  Rivera,  and his          cohorts,  had  jointly  undertaken this  criminal  activity,  and          Rivera was accountable for  the other's conduct in attempting  to          import and possess  all 800  kilograms of cocaine.   The  court's          finding  was supported  by evidence  introduced  at trial.   Both                                         -24-          Linder  and  Monteagudo  testified  that they  met  with  Rivera,          Ovalle, and another  co-defendant on November 27,  1991, and that          at this meeting they planned to import into Puerto Rico, 22 bales          of  cocaine (800 kilograms) which  were to be  airdropped off the          coast of the Dominican Republic.  Testimony  by Monteagudo showed          that  the original scheme to  import the cocaine  did not proceed          precisely  according  to plan,  because  of boat  problems  and a          pursuit  by  unknown  individuals  who  unexpectedly  chased  the          conspirators in their boat  on December 11, forcing them  to dump          some  of  the  cocaine  overboard.    Testimony  by  Linder   and          Monteagudo  indicated  that  Rivera  and Ovalle  then  helped  to          salvage the original  plan and adapt it -  by calling Linder into          service  and  helping  him obtain  a  boat,  so  that Linder  and          Monteagudo  could go to the  Dominican Republic, and  pick up and          import the rest of  the cocaine.  Thus, the court did  not err by          implicitly concluding  that Rivera  helped plan the  logistics of          the  scheme to import the entire 800 kilograms, and therefore the          subsequent  acts by  his co-conspirators  to execute  this scheme          were in furtherance of,  and reasonably foreseeable in connection          with, the jointly undertaken felonious plan.                     Rivera  contends  that   the  verdicts  regarding  the          substantive drug  charges should  guide the court  in determining          the  correct  quantity  of  cocaine  instead  of  the  conspiracy          charges.   The  operative indictment  grouped all of  the cocaine          involved  in  the December  11, 1991  and  the December  15, 1991          shipments  of cocaine together  (800 kilograms) in  Count One and                                         -25-          Two,  the conspiracy charges.  The indictment then broke down the          substantive charges  into the  two distinct shipments  of cocaine          that  the  defendants  had  allegedly  attempted  to  import  and          possess.    The jury  only  convicted Rivera  of  the substantive          charges  related  to  the  December 15  shipment,  involving  372          kilograms of cocaine (Counts Five and Six), and acquitted Rivera,          and  all of his co-defendants,  with respect to  the December 11,          1991 shipment,  involving 418 kilograms of  cocaine (Counts Three          and Four).  Therefore,  Rivera contends that it was  improper for          the  court to  include  the amount  of  cocaine involved  in  the          charges of which he was acquitted, in determining his BOL.                       The fact  that Rivera was acquitted  of the substantive          charges involving  the 418  kilograms of  cocaine does not  mean,          however,  that  the  court  could not  consider  that  conduct as          "relevant  conduct."    When   determining  relevant  conduct,  a          sentencing court may  consider acts  which were  not charged,  as          well as the facts  underlying a prior acquittal when  these facts          "appear  reliable."   Garc a, 954  F.2d at  15; United  States v.                                ______                    ______________          Mocciola, 891 F.2d 13, 17 (1st Cir. 1989) (citation omitted); see          ________                                                      ___          also United  States v. Weston, 960 F.2d  212, 218 (1st Cir. 1992)          ____ ______________    ______          (stating in dicta that  an acquittal is not always  conclusive on          an issue for  sentencing purposes due  to differing standards  of          proof).   As we have  previously noted, testimony  by both Linder          and  Monteagudo  indicated  that  Rivera planned  to  import  800          kilograms  of cocaine,  including  the 418  kilograms of  cocaine          which was  the basis for  Counts Three  and Four.   There was  no                                         -26-          clear  error in the court's  decision to credit  the testimony of          Linder and  Monteagudo at sentencing, and  then consider Rivera's          conduct  with respect to the  800 kilograms of  cocaine, when the          court  determined Rivera's BOL.   See, e.g., Innamorati, 996 F.2d                                            ___  ____  __________          at 489; Garc a, 954 F.2d at 16;  United States v. Sklar, 920 F.2d                  ______                   _____________    _____          107, 110 (1st Cir. 1990).                      2.  The Firearm Enhancement                      2.  The Firearm Enhancement                    Rivera  makes  a  similar   challenge  to  the  court's          decision to  enhance his sentence  pursuant to U.S.S.G.    2D1.1,          because the court found  that a firearm was possessed  during the          commission  of  the  drug  offenses.    Rivera  argues  that  the          testimonial  evidence  linking him  and  his  co-defendants to  a          firearm  was extremely weak, especially in light of the fact that          no  firearm  was  ever  found.   Additionally,  because  the jury          acquitted  Rivera and  his  co-defendants of  Count Seven,  which          charged them with aiding  and abetting the carrying of  a firearm          in relation  to the  commission of the  offense, Rivera  contends          that there was no basis for the court to enhance his sentence.                      U.S.S.G.    2D1.1(b)(1) directs a  sentencing court  to          enhance  a defendant's  BOL if  a dangerous  weapon, including  a          firearm,  was possessed.  The  commentary to    2D1.1 states that          the sentencing court should impose the enhancement "if the weapon          was  present, unless it is clearly improbable that the weapon was          connected  with the  offense."   U.S.S.G.   2D1.1  comment (n.3);          United  States v.  Castillo,  979 F.2d  8,  10 (1st  Cir.  1992);          ______________     ________          Corcimiglia, 967 F.2d  at 727.   The First  Circuit has  followed          ___________                                         -27-          this  "clearly improbable"  standard.   Corcimiglia, 967  F.2d at                                                  ___________          726; United States v.  Ruiz, 905 F.2d 499,  507 (1st Cir.  1990).               _____________     ____          We have found that:                      when  the  weapon's  location   makes  it                      readily available to  protect either  the                      participants   themselves    during   the                      commission of the illegal activity or the                      drugs  and  cash  involved  in  the  drug                      business,   there   will  be   sufficient                      evidence  to connect  the weapons  to the                      offense conduct . . . .          Corcimiglia, 967 F.2d at 727; see also Castillo, 979 F.2d at 10.          ___________                   ________ ________          The defendant then has  the burden to come forward  with evidence          demonstrating the existence of  special circumstances that  would          render it "clearly improbable"  that the weapon's presence  has a          connection to the  narcotics trafficking.  Castillo, 979  F.2d at                                                     ________          10;          Corcimiglia, 967 F.2d at 727-28.             ___________                    As we have previously  discussed, the court is entitled          to  consider  "relevant"  conduct  at sentencing,  and  this  may          include  conduct  which  was  the  basis  for  charges  that  the          defendant  was  acquitted  of,  as  long  as the  evidence  which          establishes that conduct was reliable.  Mocciola, 891 F.2d at 16-                                                  ________          17.   The  court considered  such relevant  conduct here  when it          decided to apply  the U.S.S.G.    2D1.1 enhancement.   The  court          found:                        There's no question in my mind that there                      was   a   gun   there.      Willie,   the                      Confidential Informant,  talked about it.                      Talked about taking the bullets out.  Try                      to make it inoperable.   And then we have                      Monteagudo who said that he  received two                      guns,  as a   matter  of fact,  from this                                         -28-                      defendant.  And there is a gun.          The court then acknowledged that Rivera had been acquitted of the          firearms charge, but stated that because the court had found that          guns   were   possessed   in   connection   with  the   narcotics          transactions, and Rivera did  not convince the court that  it was          clearly  improbable   that  the  gun  would  have  been  used  in          connection  with these  narcotic  transactions, it  was going  to          apply the enhancement.                    The court's  finding was  supported by evidence  in the          record and was not clearly erroneous.  Monteagudo testified  that          on December 7, at  a meeting with Rivera, Ovalle, and  others, to          finalize  the  plans for  the  smuggling  operation, Rivera  gave          Monteagudo two firearms, a .38 caliber revolver and a .22 caliber          pistol.   It was certainly  reasonable for the  court to conclude          that Rivera had  given the  two firearms to  Monteagudo, who  was          about to leave on his foray to pick up 800  kilograms of cocaine,          to facilitate  this smuggling  plan.  With  the guns,  Monteagudo          could protect  himself, and his  co-conspirators, as well  as the          large  quantity of cocaine they  were to pick  up.  Additionally,          Linder  testified  that Monteagudo  had  in  fact brought  a  .22          caliber pistol with them  on December 15, when he  and Monteagudo          went to the Dominican Republic to pick up the remaining ten bales          of cocaine and bring  the cocaine to  Puerto Rico.  Thus,  absent          circumstances  showing that  it was  clearly improbable  that the          firearms were connected to the drug offense, there was sufficient          evidence to support the enhancement.  Rivera has not claimed that                                         -29-          any  such special  circumstances  existed.   The court  therefore          properly applied the U.S.S.G.   2D1.1 enhancement.                         3.  The Supervisory and Managerial Role Enhancement                          The Supervisory and Managerial Role Enhancement                    Rivera  challenges  the  three-level   enhancement  for          playing  a supervisory role  which the court  imposed pursuant to          U.S.S.G.   3B1.1(b), claiming  that the evidence  demonstrated he          was   an  underling,   who   merely  followed   orders  in   this          organization.  The court found that "the defendant's role is of a          manager/supervisor and  it has been adequately  supported by this          record."   We  review this  role-in-the-offense ruling  for clear          error.  United States v. Judusingh, 12  F.3d 1162, 1169 (1st Cir.                  _____________    _________          1994) (citation  omitted);  United States  v. Rodr guez Alvarado,                                      _____________     __________________          985 F.2d 15, 19 (1st Cir. 1993) (citations omitted).                    A three-level  enhancement under U.S.S.G.   3B1.1(b) is          appropriate if the government  shows that the defendant 1)  was a          manager  or supervisor of the criminal activity (but not a leader          or organizer); and 2) the criminal activity involved five or more          participants or was otherwise extensive.  Rodr guez Alvarado, 985                                                    __________________          F.2d at 20.  The terms "manager" and "supervisor" are not defined          in  the  guidelines.   A court  can find  that  a defendant  is a          manager or supervisor where he "exercised some degree  of control          over others involved in  the commission of the crime or  he [was]          responsible for organizing others for the purpose of carrying out          the  crime."   See Rodr guez  Alvarado, 985  F.2d at  20 (quoting                         ___ ___________________          United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)).          _____________    ______                    The court did not  err in finding that Rivera  played a                                         -30-          managerial or  supervisory role in the  drug smuggling operation.          The  record   supports  the  conclusion  that   Rivera  played  a          predominant role in planning and organizing the logistics of this          criminal operation:   1) Rivera  was present at  the November  27          planning meeting;  2) Rivera gave Ovalle  and Linder instructions          with respect to making sure Linder's boat was available to import          the cocaine; 3) Rivera initially became suspicious of Linder, and          then held a meeting where it was decided that Linder would be cut          out  of  the initial  attempt to  import  the cocaine;  4) Rivera          procured another boat  to be used by  his cohorts in  the initial          attempt  to  import  the  800 kilograms  of  cocaine;  5)  Rivera          provided  Monteagudo with two firearms to be used during the drug          smuggling operations; and  6) Rivera, along with Ovalle, met with          Linder with respect to the  logistics of importing the  remaining          cocaine  which had  been left  behind in the  Dominican Republic.          There is also  no dispute  that more than  five individuals  were          involved  in the drug smuggling plan.  The court properly applied          the U.S.S.G.   3B1.1(b) enhancement.                      4.  The Obstruction of Justice Enhancement                      4.  The Obstruction of Justice Enhancement                    The   government  requested  that   the  court  enhance          Rivera's sentence pursuant to U.S.S.G.   3C1.1, based on Rivera's          obstruction of justice.  The government based this request on two          factors:  1) that  Rivera had provided  a false statement to  the          probation officer at a  presentence interview to the effect  that          he was not  involved in  the November 27  planning meeting,  when          evidence  presented  at trial  showed  that  Rivera  was in  fact                                         -31-          present and  actively participated in this meeting;  and 2) after          being found  guilty, Rivera sent  a letter to  co-defendant Chala          instructing  him to  provide false  information to  the probation          officer  to the  effect that  Monteagudo had  misled  Chala, that          Chala was unaware of the  plan to pick up the cocaine that was to          be airdropped off the  coast of the Dominican Republic,  and that          none of the  defendants had  anything to do  with this  smuggling          operation.  At sentencing, the court found that:                      Well, I  read the  letter and the  -- and                      unfortunately there are parts of  it that                      I  read and  said well  this could  be an                      individual writing  to another individual                      saying to him that, you know, they're not                      guilty.    And   remember  --  and   just                      reminding  him of  the fact  that they're                      not guilty and that  they have nothing to                      do  with it.   Unfortunately,  the letter                      goes beyond that.   There's instructions.                      Actual  instructions as  to what  to tell                      people and just to -- . . .                      And besides that  there is another matter                      of the perjury.          The court then applied the two level enhancement  for obstruction          of justice.                    United  States Sentencing  Guidelines    3C1.1 provides          that  "if  the  defendant  willfully obstructed  or  impeded,  or          attempted to  obstruct or  impede, the administration  of justice          during  the  investigation,  prosecution,  or  sentencing of  the          instant  offense, increase the offense  level by 2  levels."  The          enhancement  applies where a defendant provides "materially false          information to a probation officer in respect to a presentence or          other investigation for the court."  U.S.S.G.   3C1.1, commentary          n.3(h); See United  States v. Olea, 987  F.2d 874, 877  (1st Cir.                  ___ ______________    ____                                         -32-          1993).   The enhancement also applies where  a defendant commits,          suborns  or  attempts  to  suborn perjury.    U.S.S.G.     3C1.1,          commentary n.3(b);  See United States  v. Gonz les, 12  F.3d 298,                              ___ _____________     ________          299  (1st Cir.  1993) (finding  that the  obstruction  of justice          enhancement was  warranted where the defendant  attempted to coax          an  acquaintance  into  bearing  false  witness  about  a  matter          material to  the case).  The  test for materiality  of an alleged          perjured matter is  not a stringent one, and the  term is defined          to  include  any  "fact,   statement,  or  information  that,  if          believed,  would  tend to  influence  or affect  the  issue under          determination."  U.S.S.G.    3C1.1, commentary n.5; United States                                                              _____________          v. St. Cyr, 977 F.2d 698, 705 (1st Cir. 1992).               _______                    We review a court's factual findings with respect to an          obstruction  of  justice  enhancement   for  clear  error.    See                                                                        ___          Gonz les, 12  F.3d at 299;  Weston, 960 F.2d  at 220.   The court          ________                    ______          found  that Rivera  had perjured  himself during  the presentence          interview  with the probation officer.  The court would have been          justified  in  applying the  enhancement  based  on this  finding          alone, because  Rivera's prevarication regarding his  role in the          smuggling plan was material, in that it could have influenced the          probation  officer's investigation,  and ultimately  affected his          determination of Rivera's offense level.                       Additionally,  the court  heard testimony  and argument          regarding the letter Rivera  sent to Chala, and implicitly  found          that  the letter was authentic,  that Chala had  received it, and          that  Rivera's letter specifically instructed Chala to lie to the                                         -33-          probation officer.  Statements Chala would make to the  probation          officer  regarding  what  occurred   during  the  drug  smuggling          operation, and statements attempting to portray Monteagudo as the          sole wrongdoer, were  material in that they could have influenced          or   affected   various   sentencing   issues   related   to  the          determination  of offense  levels, such  as relevant  conduct and          various defendants' roles in  the offense.  See, e.g.,  Olea, 987                                                      ___  ____   ____          F.2d at 877 (defendant's statements that he was an unwitting dupe          and that he  had nothing to do with two  drug sales were material          for  purposes  of U.S.S.G.    3C1.1  because  they would  tend to          influence or affect  the calculation of his  base offense level).          This  finding  therefore also  supports  the  application of  the          enhancement.   See, e.g., St. Cyr, 977  F.2d at 705 (stating that                         ___  ____  _______          presentence reports are an important ingredient of the sentencing          process,  and   providing  materially  false  information   to  a          probation officer in respect to a  presentence report is culpable          and can constitute  obstruction of justice even absent  a showing          of  actual  prejudice).     Rivera  contends  that  the  evidence          regarding  the authenticity of the  letter is so  dubious that it          cannot  support  the  application   of  the  enhancement.    That          determination,  however, was for the sentencing  court, and we do          not  believe that  the court's  finding that  the letter  sent by          Rivera to  Chala, in an attempt to get Chala to lie, was genuine,          was  clearly erroneous.   The  court's two-level  enhancement for          obstruction of justice must stand.                    C.  Ovalle's Sentencing Challenges                    C.  Ovalle's Sentencing Challenges                                         -34-                    Ovalle  was convicted  of  the same  four drug  related                              charges  as  Rivera.   At sentencing,  the  court found  that the          appropriate sentencing guideline was   2Dl.1, and found  that the          drug  quantity  attributable  to  Ovalle  was  800  kilograms  of          cocaine.  The court  therefore determined Ovalle's BOL to  be 40.          The court then  increased Ovalle's BOL by four levels pursuant to             3Bl.1(b), because  it  found  that  Ovalle  was  a  leader  or          organizer  of   a  criminal  activity  involving   five  or  more          participants.  The court also enhanced Ovalle's BOL by applying a          two level enhancement pursuant to U.S.S.G.   2D1.1(b)(1), because          the  court  found  that  Ovalle  possessed  firearms  during  the          commission of the offense.   The court determined that  the total          offense  level  was 46,  and  because  Ovalle's Criminal  History          Category was I, he therefore  faced a guideline sentencing  range          of life imprisonment.                        1.  Were the Required Findings Made?                      1.  Were the Required Findings Made?                    Ovalle contends that the  district court failed to make          the necessary findings at sentencing as required by Fed. R. Crim.          P.  32(c)(3)(D).  Prior to the imposition of his sentence, Ovalle          contended that the  PSR was incorrect  in that:   1) the  offense          level  of forty  (40)  based upon  the  total quantity  of  drugs          involved (800  kilograms) was  incorrect because Ovalle  was only          convicted  of possessing  372  kilograms, and  the offense  level          should  therefore only  be thirty-eight  (38); 2) the  four level          enhancement based upon Ovalle's role as an organizer or leader of          a  criminal activity was  incorrect because the  evidence did not                                         -35-          establish that  he  played such  a  role; and  3)  the two  level          enhancement  for  possession  of firearms  was  improper  because          Ovalle  never possessed  a  firearm.   Ovalle  contends that  the          quantity of cocaine that was involved, what role he played in the          conspiracy, and  whether he possessed a  firearm, were unresolved          factual matters in controversy prior to sentencing, and the court          failed to make any  findings with respect to these  matters prior          to sentencing him.                    When a  defendant claims that the  PSR contains factual          inaccuracies, the  district court must make  a finding concerning          the  allegation,  or make  a  determination  that no  finding  is          necessary because the court will not take the matter into account          at sentencing.  Fed.  R. Crim. P. 32(c)(3)(D);9 United  States v.                                                          ______________          Savoie,  985  F.2d 612,  620 (1st  Cir.  1993); United  States v.          ______                                          ______________          Gerante,  891 F.2d 364, 366-67  (1st Cir. 1989).   "This protocol          _______          serves the dual purpose of protecting the defendant's due process          rights and supplying a clear record for future proceedings  . . .          ."  Savoie, 985 F.2d at 620; Gerante, 891  F.2d at 367.  While we              ______                   _______                                        ____________________          9  Fed. R. Crim. P. 32(c)(3)(D) provides in pertinent part:                      If the  comments of the defendant and the                      defendant's counsel or testimony or other                      information introduced by them allege any                      factual  inaccuracy  in  the  presentence                      investigation  report  or the  summary of                      the  report  or part  thereof,  the court                      shall,  as  to each  matter controverted,                      make (i)  a finding as to the allegation,                      or  (ii) a  determination  that  no  such                      finding is necessary  because the  matter                      controverted  will  not  be   taken  into                      account in sentencing.                                         -36-          have insisted on strict  compliance with this rule, we  have also          found  that a  court "lawfully  may make  implicit findings  with          regard to sentencing matters, incorporating by reference suitably          detailed  suggestions  limned  in  the  [Presentence  report]  or          advanced by  a party."  United States v. Tavano, 12 F.3d 301, 307                                  _____________    ______          (1st Cir. 1993) (citations  omitted); see United States v.  Cruz,                                                ___ _____________     ____          981 F.2d 613, 619 (1st  Cir. 1992); United States v.  Wells Metal                                              _____________     ___________          Finishing, Inc., 922 F.2d 54, 58 (1st Cir. 1991).             _______________                    In  the  present  case,  after Ovalle  had  raised  his          contentions  with respect  to the PSR,  the court  heard argument          from  both parties  regarding the  appropriate offense  level and          what  increases in the offense  level were warranted.   The court          then stated:                      Allright.   The Court  has heard comments                      and  arguments of counsel and has offered                      an  opportunity  of   the  defendant   to                      address   the   Court  with   respect  to                      sentencing.                      It is the judgment, therefore,  the Court                      finds  that on  September the  4th, 1992,                      the defendant Luis Enrique Ovalle M rquez                      was  found guilty by  a jury trial as  to                      counts    One,  Two,  Five  and  Six   of                      Indictment  number -  Criminal Indictment                      Number 91-397.                      Based on  Guideline 2D1.1 and  the amount                      of  cocaine  involved   in  the   offense                      committed a base level  of forty (40) was                      determined.    Since   the  firearm   was                      possessed  during  the commission  of the                      instant offense an increase of two levels                      is  warranted.     As  the  defendant  is                      perceived as having been an  organizer or                      leader in the overall  criminal activity,                      the  base offense  level is  increased by                      four levels pursuant to Section 3B1.1.                                         -37-                      Incidentally, for purposes of  the record                      that is  my finding with  respect to your                      arguments.          Based  on this  record,  the court  therefore  adopted the  PSR's          recommendations  and implicitly found  that Ovalle  possessed 800          kilograms  of cocaine,  Ovalle possessed  the firearm  during the          commission  of the offense, and Ovalle was an organizer or leader          in the criminal activity.  The court therefore made the necessary          findings  in order  to adequately  comply with  Fed. R.  Crim. P.          32(c)(3)(D).10                                         ____________________          10  Ovalle  also claims  that his procedural  due process  rights          were  violated by the court's  failure to hear  his objections to          the PSR.  Ovalle failed to raise his objections to the PSR in the          manner required by District of Puerto Rico Local Rule 418.  Local          Rule  418.4 provides that "[n]ot  later than ten  (10) days after          disclosure  of the Presentence Investigation Report, the attorney          for the government and the attorney for the defendant . . . shall          each file with the Court a written statement of objections to any          material facts, sentencing classifications, sentencing guidelines          ranges, policy  statements, sentencing options . . . contained in          or  omitted [from]  the Presentence  Investigation Report.   Such          objections, if  any, shall  specify with particularity  the facts          and applications contested.  Any objection not presented  in this                                       ____________________________________          fashion may not be raised by any party and will not be considered          _________________________________________________________________          by the sentencing  judge at the  sentencing hearing."   (emphasis          ___________________________________________________          added).   Ovalle's counsel only  submitted his objections  to the          probation  officer, and he failed to submit his objections to the          court.   At sentencing, the district court  initially stated that          because  Ovalle had  failed to  comply with  the local  rule, the          court would not  entertain his  objections to the  PSR.   Despite          Ovalle's procedural failure  and the court's statement,  however,          the  record shows that the court then permitted Ovalle to advance          his  objections as arguments to mitigate his sentence.  The court          then made findings and imposed Ovalle's sentence.  Because Ovalle          had ample  opportunity to challenged  the PSR's  recommendations,          and the court heard and considered Ovalle's contentions regarding          sentencing,  we  do  not believe  that  he  was  deprived of  due          process.  See United States v.  Romano, 825 F.2d  725, 729-30 (2d                    ___ _____________     ______          Cir. 1987);  cf. United States  v. Curran,  926 F.2d 59,  62 (1st                       ___ _____________     ______          Cir.  1991)  (stating  in dicta  that  district  court has  broad          discretion to  determine the  appropriate procedure  for availing          the  defendant of  an opportunity  to  challenge the  accuracy of          presentence information presented to  the district court); United                                                                     ______                                         -38-                      2.  Challenges to the Enhancements                      2.  Challenges to the Enhancements                    Ovalle claims  that the court erred  in determining his          sentence  by  ruling  against  him  with  respect  to  his  three          sentencing challenges.  With respect to Ovalle's first challenge,          a four level increase  in a defendant's BOL is  appropriate where          "the  defendant was an organizer or leader of a criminal activity          that  involved five  or more  participants .  . .  "   U.S.S.G.            3B1.1(a);  See United States v.  Sabatino, 943 F.2d  94, 101 (1st                     ___ _____________     ________          Cir. 1991); United States  v. McDowell, 918 F.2d 1004,  1011 (1st                      _____________     ________          Cir. 1990).  The application notes to U.S.S.G.   3B1.1 list seven          nonexclusive  factors  which  the  court  should   consider  when          considering   whether  a   defendant   played  a   leadership  or          organizational role  as compared  to a managerial  or supervisory          role.   These factors  include "the  exercise of  decision making          authority, the nature of  participation in the commission of  the          offense, the recruitment of  accomplices, the claimed right  to a          larger   share  of  the  fruits  of  the  crime,  the  degree  of          participation in  planning or organizing the  offense, the nature          and scope of the illegal activity,  and the degree of control and          authority exercised  over others."  U.S.S.G.    3B1.1, commentary          n.3; Sabatino, 943  F.2d at 101.  The sentencing court found that               ________          Rivera played a  leadership or organizational  role in this  drug                                        ____________________          States  v. Craveiro, 907 F.2d  260, 264 (1st  Cir. 1990) (holding          ______     ________          that  government's  failure to  provide defendant  with pre-trial          notice  that it would seek  an enhanced sentence  pursuant to the          Armed Career Criminal Act  did not violate defendant's procedural          due process  rights where the  defendant had  the opportunity  to          contest the record  prior to sentencing), cert. denied,  498 U.S.                                                    ____________          1015 (1990).                                             -39-          smuggling operation,  and then enhanced his sentence.   The court          did not err.                    The evidence in the record supports the conclusion that          Ovalle orchestrated and organized  the logistics of the smuggling          plan.    The  record  reasonably indicated  that  Ovalle  was the          individual  who  had  the closest  links  to  the  source of  the          cocaine.  Ovalle told Monteagudo that the cocaine was coming from          Colombia, and  it was Ovalle who was privy to the code that would          be  utilized to communicate with  the plane that  was coming from          Colombia  to  make the  airdrop.   After  Monteagudo  reported to          Ovalle and Rivera that he had been forced to throw seven bales of          cocaine overboard  because his boat  had been pursued  by unknown          individuals,  Ovalle took Monteagudo to  a pay phone where Ovalle          called a person, who  was reasonably presumed to be  a higher-up,          and had  Monteagudo explain  what had  happened  to the  cocaine.          Additionally, the evidence indicated  that Ovalle was involved in          all  planning stages of  the operation, and  that Ovalle directed          the actions of both Linder  and Monteagudo, as well as  other co-          conspirators.    Ovalle also  financed  various  portions of  the          operation,  such as providing money to Linder to repair his boat.          These  factors all suggest that Ovalle was a leader and organizer          of  the smuggling  operation,  and  the  court  did  not  err  in          enhancing Ovalle's BOL by four levels.                    Ovalle's  contentions  with   respect  to  the  court's          determination  of  the  quantity  of cocaine  involved,  and  its          enhancement  based on the presence of a firearm, are analogous to                                         -40-          Rivera's challenges, which we have previously addressed.  We will          not  rehash those  discussions.   Rather,  we  have reviewed  the          record  and  there  is  ample  evidence  to  support the  court's          findings  that  Ovalle  was  responsible  for  800  kilograms  of          cocaine, and that he  possessed a firearm in connection  with the          drug  offense.   The court's  sentencing determinations  were not          clearly erroneous.                    For the foregoing reasons, the decision of the district          court is affirmed.                     ________                                         -41-
