
USCA1 Opinion

	




          June 7, 1995      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1558                                    UNITED STATES,                                      Appellee,                                          v.                                 ERIC FLORES-RIVERA,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion of  this  Court issueed  on  June 1,  1995,  is          corrected as follows:               On page 5, line 4 - change "by" to "be"               On page 5, lines 24-25 - replace "intent to agree and intent          to commit the  substantive offense."   Garc a, 983  F.2d at  1165                                                 ______          (citation omitted)" with  "an intent  to agree and  an intent  to          effectuate the  commission of  the substantive offense."   United                                                                     ______          States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994),  cert. denied,          ______    _____                                     _____ ______          115 S. Ct. 1118 (1995)"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1558                                    UNITED STATES,                                      Appellee,                                          v.                                 ERIC FLORES-RIVERA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                _____________________               Robert G. Levitt for appellant.               ________________               David S.  Kris, Attorney,  U.S. Department of  Justice, with               ______________          whom Guillermo  Gil, United States Attorney,  and Salixto Medina-               ______________                               _______________          Malav ,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                     June 1, 1995                                 ____________________                    TORRUELLA, Chief  Judge.  On April  11, 1991, defendant                    TORRUELLA, Chief  Judge.                               ____________          Eric Flores-Rivera ("Flores-Rivera"), along with  seventeen other          persons not party  to this  appeal, was named  in a  thirty-four-          count  superseding  indictment   charging  various   drug-related          offenses.  On April  14, 1993, a jury convicted  Flores-Rivera on          one  count of conspiracy to import cocaine and to possess cocaine          with intent  to distribute it, in  violation of 21  U.S.C.    846          and 963 (Count 2), and two counts of assaulting a federal officer          with a deadly weapon, in violation  of 18 U.S.C.   111, (Counts 5          and 6).  The jury acquitted Flores-Rivera on Counts 3, 4, and 34,          which charged importation of  cocaine, possession of cocaine with          intent  to distribute,  and  use of  a communication  facility to          commit a drug crime, in violation of 21 U.S.C.    952, 841(a)(1),          and 843(b),  respectively.  The district  court sentenced Flores-          Rivera to 324 months' imprisonment, to be followed by a five-year          term  of supervised release.  Flores-Rivera now appeals.  For the          following reasons, we affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    We  recite the facts in the light most favorable to the          government.  United States  v. Echeverri, 982 F.2d 675,  676 (1st                       _____________     _________          Cir. 1993).  The focus of  this case was a large drug trafficking          conspiracy.   The  conspirators, headed  by co-defendant  Eusebio          Escobar-de Jes s ("Escobar"), worked with members of the Medell n          and Cali drug cartels to import cocaine from Colombia into Puerto          Rico and New York.                                         -2-                    The linchpin witness for  the government's case against          Flores-Rivera  was  William  Cedr s  ("Cedr s"),  a  confidential          informant.   Cedr s testified that he  infiltrated the conspiracy          and gained the confidence of Escobar.  In 1990, Cedr s became the          "number  two man"  in Escobar's  organization.   Cedr s testified          that  Escobar informed him that Flores-Rivera was a member of the          organization.   Cedr s  also  testified  that  Flores-Rivera  had          accompanied him to the island of  Vieques to look for sites where          an airplane could land or drop-off kilogram quantities of cocaine          in  the  future.   Cedr s  indicated that  the  conspirators were          planning  to use  the  new sites  to  import approximately  1,500          kilograms  of cocaine.   The  Medell n cartel  was to  supply the          cocaine, and the importation  was to be divided into four or five          shipments.                    Cedr s  also  testified  that  Escobar  had  instructed          Flores-Rivera to supervise the importation of between 300 and 500          kilograms  of  cocaine from  Colombia.    Flores-Rivera was  tape          recorded  discussing  the  importation  plans  with   Cedr s  and          Escobar.    The tape  recording,  along  with Cedr s'  testimony,          indicate that Flores-Rivera was to  travel to Colombia and return          in a boat loaded with cocaine to one of Escobar's properties.                    The  government  also  presented  evidence  of  Flores-          Rivera's involvement  in  the April  1986  shooting of  two  U.S.          Customs  agents.  Two witnesses testified that on April 14, 1986,          they saw Flores-Rivera arrive at the Isla Grande Flying School in          a yellow, flatbed  tanker-truck and purchase over 100  gallons of                                         -3-          aviation fuel.  Two U.S. Customs agents followed Flores-Rivera as          he  drove the  tanker-truck  from the  flying  school to  a  farm          housing a covert landing strip used by the  Escobar organization.          From their surveillance post outside the farm, the Customs agents          observed Flores-Rivera and codefendant Andr s  Morales-Cruz enter          the  farm.   Later  that night,  the Customs  agents saw  a small          airplane  land  at the  farm.   Shortly  thereafter,  the Customs          agents witnessed an  unidentified man clad in army  fatigues exit          the farm in a white van.   The Customs agents followed.  When the          van got to a small curve in the road,  it stopped as if to make a          U-turn.    As the  Customs agents  tried to  drive by,  the van's          occupants  opened fire  on them,  severely injuring  both agents.          The agents were never able to identify the attackers.                                   II.  DISCUSSION                                   II.  DISCUSSION                    A.  Sufficiency of the Evidence                    A.  Sufficiency of the Evidence                        ___________________________                    Flores-Rivera   contends   that   the    evidence   was          insufficient  to  support  his  convictions  for  conspiracy  and          assault on a federal officer.                    The  standard of  review governing  a challenge  to the          sufficiency of  the evidence is  well established.   An appellate          court must  determine whether a  rational jury  could find  guilt          beyond a reasonable doubt.   Echeverri, 982 F.2d at 677;   United                                       _________                     ______          States  v. Garc a, 983  F.2d 1160, 1163-64  (1st Cir. 1993).   In          ______     ______          making this  determination, the reviewing court  must examine the          evidence,  together with  all inferences  that may  be reasonably          drawn  from it, in the  light most favorable  to the prosecution.                                         -4-          Echeverri,  982 F.2d  at 677.   Furthermore, the  reviewing court          _________          does  not   evaluate  witness   credibility,  but   resolves  all          credibility issues in favor of the verdict.   Garc a, 983 F.2d at                                                        ______          1164  (quoting United States v.  Batista-Polanco, 927 F.2d 14, 17                         _____________     _______________          (1st Cir. 1991)).  "The evidence may  be entirely circumstantial,          and need  not exclude  every reasonable hypothesis  of innocence;          that   is,   the   factfinder   may   decide   among   reasonable          interpretations of  the evidence."  Batista-Polanco,  927 F.2d at                                              _______________          17.  Nevertheless, "[i]f  the 'evidence viewed in the  light most          favorable   to  the   verdict   gives  equal   or  nearly   equal          circumstantial  support  to a  theory of  guilt  and a  theory of          innocence  of the  crime  charged,' this  court must  reverse the          conviction.  This  is so because .  . . where an  equal or nearly          equal theory of guilt and  a theory of innocence is supported  by          the  evidence  viewed  in   the  light  most  favorable  to   the          prosecution,  'a reasonable  jury  must  necessarily entertain  a                                             ___________________________          reasonable doubt.'"   United  States v. S nchez,  961 F.2d  1169,                                ______________    _______          1173 (5th Cir.) (citations omitted), cert. denied, 113 S. Ct. 330                                               ____________          (1992).   With the scope of  our review thus defined,  we move to          the appellants' claims.                      1.  Conspiracy                      1.  Conspiracy                    To establish a  conspiracy conviction, the  prosecution          must prove, inter alia, that  the defendant entered an  agreement                      _____ ____          to commit the substantive  offense, and that the defendant  was a          voluntary participant in the conspiracy.   Echeverri, 982 F.2d at                                                     _________          679.   The  government must  prove  that the  defendant possessed                                         -5-          both  "an intent  to  agree  and  an  intent  to  effectuate  the          commission of the substantive offense."   United States v. Piper,                                                    ______ ______    _____          35 F.3d 611,  615 (1st Cir. 1994), cert. denied,  115 S. Ct. 1118                                             _____ ______          (1995).  However,  "[d]ue to the  clandestine nature of  criminal          conspiracies, the  law recognizes that the  illegal agreement may          be either 'express or tacit' and that a '"common purpose and plan          may   be  inferred   from  a   development  and   collocation  of          circumstance."'"   United States  v. S nchez, 917  F.2d 607,  610                             _____________     _______          (1st Cir. 1990)(citations omitted), cert. denied, 111 S. Ct. 1625                                              ____________          (1991).  "Mere presence  at the scene and close  association with          those involved are insufficient factors alone; nevertheless, they          are relevant factors for  the jury."   S nchez, 961 F.2d at  1174              ________                           _______          (5th Cir.) (citation omitted).                    Although  he  does not  dispute  the  existence of  the          Escobar drug-trafficking conspiracy, Flores-Rivera maintains that          the evidence fails to establish that he was a member.  Given that          we resolve any  credibility issues  in favor of  the verdict,  we          find  that Flores-Rivera's  sufficiency-of-the-evidence challenge          fails  because   the  record  contains  ample   support  for  his          conspiracy  conviction.    A  reasonable jury  could  infer  from          Cedr s' testimony  that Flores-Rivera was deeply  involved in the          entire  operation.   Cedr s  testified that  Flores-Rivera was  a          member  of   the  Escobar  conspiracy,  and   that  Flores-Rivera          accompanied  him to  Vieques  to search  for appropriate  landing          sites for drug drop-offs.  Moreover, the evidence against Flores-          Rivera  includes a  tape-recorded  conversation in  which Flores-                                         -6-          Rivera discusses importation plans with Escobar and Cedr s.   The          tape recording also indicates that  Flores-Rivera agreed to go to          Colombia and  return in a boat  laden with cocaine.   In sum, the          evidence demonstrates clearly and convincingly that Flores-Rivera          was  a knowing and voluntary  participant in many  aspects of the          Escobar drug conspiracy.                                         -7-                      2.  Assault on a federal agent                      2.  Assault on a federal agent                    Under the well settled Pinkerton doctrine, members of a                                           _________          conspiracy  may  be  held   liable  for  the  substantive  crimes          committed  by  co-conspirators,  provided  that  the  substantive          crimes were committed in furtherance of the  conspiracy and while          the  defendant was a member of  the conspiracy.  See Pinkerton v.                                                           ___ _________          United  States,  328 U.S.  640, 646-48  (1946); United  States v.          ______________                                  ______________          Torres-Maldonado, 14 F.3d  95, 101 (1st Cir.), cert.  denied, 115          ________________                               _____________          S.  Ct. 193 (1994).  Under Pinkerton, the government was required                                     _________          to prove  that the  April 14, 1986,  assault on the  U.S. Customs          agents was carried out  by members of the Escobar  conspiracy, in          furtherance  of the conspiracy, and at  a time when Flores-Rivera          was still a member of the conspiracy.  United States v. Mu oz, 36                                                 _____________    _____          F.3d  1229, 1234 (1st  Cir. 1994), cert. denied,  115 S. Ct. 1164                                             ____________          (1995).   We  think  it met  this  burden.   The  jury heard  the          following  facts:    On  April 14,  1986,  Flores-Rivera  brought          airplane fuel to a  farm housing a covert landing  strip operated          by the conspirators.   While the Customs  agents were surveilling          the farm, a  plane landed at the farm and,  shortly thereafter, a          man  clad in army  fatigues exited in  a white van.   The Customs          agents followed the van.  The van stopped as if to make a U-turn,          and  as the Customs agents drove by,  they were fired upon by the          van's occupants.  In these circumstances, a reasonable jury could          have  found that  the shooting  was committed  by members  of the          conspiracy, in  furtherance of the conspiracy,  and while Flores-          Rivera  was still a member of the conspiracy.  Therefore, we find                                         -8-          that there was sufficient evidence to convict Flores-Rivera under          Pinkerton liability for assault on a federal officer.          _________                    Accordingly, we  reject both  of his challenges  to the          sufficiency of the evidence.                    B.  Separate Trials                    B.  Separate Trials                        _______________                    Flores-Rivera   alleges   that   the   district   court          erroneously denied his Rule 14 motion for severance.  See Fed. R.                                                                ___          Crim. P. 14.1  We disagree.                    The First Circuit law regarding severance is clear:                      As  a  rule,  persons  who  are  indicted                      together should be  tried together.  This                      practice    helps    both   to    prevent                      inconsistent  verdicts  and  to  conserve                      resources   (judicial and prosecutorial).                      Thus,  when    multiple  defendants   are                      named in a single indictment, a defendant                      who seeks a separate trial can ordinarily                      succeed  in obtaining one  only by making                      a  strong  showing of  evident prejudice.                      The hurdle is intentionally  high; recent                      Supreme Court precedent instructs that "a                      district court should  grant a  severance                      under Rule 14 only  if there is a serious                      risk that a joint trial  would compromise                      a  specific  trial  right of  one  of the                      defendants,  or  prevent  the  jury  from                      making a reliable judgment about guilt or                      innocence."          United  States   v.  O'Bryant,   998  F.2d   21,  25   (1st  Cir.          ______________       ________          1993)(quoting Zafiro  v.  United  States,  113 S.  Ct.  933,  938                        ______      ______________          (1993))(internal citations omitted).                                        ____________________          1  The rule authorizing motions for severance states in pertinent          part:  "If it appears that  a defendant . . . is prejudiced  by a          joinder . . . of  defendants . . . for trial together,  the court          may  . . . grant  a severance of  defendants, or provide whatever          other relief justice requires."  Fed. R. Crim. P. 14.                                         -9-                    The decision to grant or deny a motion for severance is          committed to the sound  discretion of the trial court and we will          reverse  its refusal  to sever  only upon  a finding  of manifest          abuse of discretion.  Zafiro, 113 S. Ct. at 938; United States v.                                ______                     _____________          Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991); United States          _____________                                       _____________          v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991),  cert. denied, 112             _______                                      ____________          S. Ct. 986 (1992); Boylan, 898 F.2d 230, 246 (1st Cir. 1990).                             ______                    Essentially, Flores-Rivera contends that  severance was          required because of the "spillover" effect of prosecuting him, an          alleged  minor participant,  alongside  the  major  conspirators.          That  is, Flores-Rivera  claims that  the joint  trial "seriously          limited  the jury's  ability  to sift  through  all the  evidence          against each individual defendant and increased the risk that the          jury would base its verdicts on evidence which  has no bearing on          the  guilt  or  innocence  of  defendants  with  a  more  limited          involvement  in the scheme."   United States v.  Brandon, 17 F.3d                                         _____________     _______          409,  440 (1st Cir.), cert. denied, Granoff v. United States, 115                                ____________  _______    _____________          S. Ct. 80  (1994).  In support of this  contention, he points out          that he  was named in  less than  ten percent of  the of  all the          overt acts charged in the indictment and that his alleged role in          the  conspiracy   was  significantly   less  than  that   of  his          codefendants.  These facts, without more, do not render severance          mandatory.  We rejected this argument in O'Bryant, stating:                                                   ________                      To  be  sure,  there  is  some  truth  to                      appellant's   complaint  that   a  minnow                      (O'Bryant)  and a  kingfish (Puleo) stood                      trial together.  It is also true that the                      prosecution  drew  a  bead  on  Puleo and                      aimed  most  of  its  ammunition  in  his                                         -10-                      direction.    But, these  truths, without                      more,  did  not  necessitate  a  separate                      trial for  O'Bryant.  It is  well settled                      that,  "[e]ven  where  large  amounts  of                      testimony   are      irrelevant  to   one                      defendant,   or  where   one  defendant's                      involvement in an  overall  agreement  is                      far less than the involvement of others,"                      the  court of appeals  must be "reluctant                      to second guess severance denials."  Such                      reluctance is fully justified here.          O'Bryant,  998  F.2d  at 26  (quoting  Boylan,  898  F.2d at  246          ________                               ______          (collecting cases)).                    Moreover,  we  have held  that  "'[i]n  the context  of          conspiracy,  severance  will  rarely,  if  ever,  be  required.'"          Brandon,  17 F.3d at 440  (quoting United States  v. Searing, 984          _______                            _____________     _______          F.2d 960, 965  (8th  Cir. 1993)); see also  O'Bryant, 998 F.2d at                                            ________  ________          24-26.    To convict  any of  the  defendants under  a conspiracy          theory,  the government had to  show the existence  of an illicit          scheme  to import  and  distribute cocaine;  and because  Flores-          Rivera  and  his  codefendants were  charged  as  coconspirators,          virtually all the evidence relating to the other conspirators was          also   directly  relevant   to,  and,   therefore,  independently          admissible in, the prosecution's case against him.  See O'Bryant,                                                              ___ ________          998  F.2d at  26 (citing United  States v.  Riehl, 460  F.2d 454,                                   ______________     _____          457-58 (3d Cir. 1972)).  And  as we have held, "[w]here  evidence          featuring  one defendant  is independently  admissible against  a          codefendant,  the  latter  cannot  convincingly  complain  of  an          improper   spillover   effect."      Id.   (collecting   cases).2                                               ___                                        ____________________          2   We also note that the  jury acquitted Flores-Rivera on Counts          3, 4, and 34, which charged importation of cocaine, possession of          cocaine with  intent to  distribute, and  use of a  communication                                         -11-          Accordingly,  we find that the  district court did  not abuse its          discretion  in  refusing  to  grant  Flores-Rivera's  motion  for          severance.                    C.  Jury Selection                    C.  Jury Selection                        ______________                    Defendant asserts two claims regarding  jury selection.          First,  he contends  that the  "English only" requirement  of the          jury  selection system  violates  his Fifth  and Sixth  Amendment          rights  because   it  effectively  excludes  two-thirds   of  the          population of Puerto Rico.3   This argument is foreclosed  by our          decision in United States v. Aponte-Su rez, in which we held that                      _____________    _____________          even if the English-only requirement "[results] in a smaller pool          of  eligible jurors  and  a 'systematic  exclusion'  in the  jury          selection process, the  overwhelming national interest  served by          the  use of English in a United States court justifies conducting          proceedings  in the  District  of  Puerto  Rico  in  English  and          requiring  jurors to be proficient  in that language."   905 F.2d          483,  492 (1st Cir.)(citing  United States v.  Benmuhar, 658 F.2d                                       _____________     ________          14,  19 (1st  Cir. 1981),  cert. denied,  457 U.S.  1117 (1982)),                                     ____________                                        ____________________          facility to commit a drug crime.  This suggests that the jury was          able  to sift through the  evidence in an  analytical fashion and          that the alleged spillover  effect did not cause the  jury merely          to enter a  lump conviction against Flores-Rivera.   See Brandon,                                                               ___ _______          17  F.3d at 440  (finding acquittals to  be a relevant  factor in          upholding  a district  court's denial of  a severance)(collecting          cases).          3  Federal law requires that all grand and petit  jurors have the          ability  to speak English and read,  write and understand English          with proficiency sufficient to  fill out satisfactorily the juror          qualification form.  28 U.S.C.   1865(b)(2) & (3).                                         -12-          cert. denied, 498 U.S.  990 (1990).  Accordingly, we  reject this          ____________          contention.                    Second, Flores-Rivera maintains that the district court          did not  adequately inquire  whether the  jurors could speak  and          understand English as required  by 28 U.S.C.   1865(b)(2)  & (3),          and that "[p]resumably, there were many . . . jurors who actually          sat on  this case  who may  not have comprehended  English."   We          disagree.                    28 U.S.C.    1865(b) requires that  jurors be dismissed          if  they cannot demonstrate a minimum proficiency in English.  28          U.S.C.   1867 sets forth the proper procedure for challenging the          district  court's  compliance   with  selection  procedures,  and          requires that the defendant  make an appropriate challenge within          seven  days  "after  the   defendant  discovered  or  could  have          discovered,  by the   exercise  of diligence,  . .  . substantial          failure  to comply with the provisions of this title in selecting          the  grand or petit jury."  Here, Flores-Rivera did not challenge          the  English  proficiency  of  the empaneled  jurors  within  the          prescribed time frame.  In similar cases, we have held that where          the defendant failed  to raise a timely  objection, "later doubts          as to a juror's linguistic competence will not constitute grounds          for relief without a showing of 'manifest' or 'clear' injustice."          United States v. Nickens, 955 F.2d 112, 117 (1st Cir.)(collecting          _____________    _______          cases), cert. denied, 113  S. Ct. 108 (1992).   Flores-Rivera has                  ____________          shown  no such  injustice.   In  fact,  his bald  assertion  that          "presumably, there  were many .  . . jurors  who actually sat  on                                         -13-          this case who may not have comprehended English" is unaccompanied          by any support whatsoever.   Accordingly, we reject his challenge          to the empaneled jury, not only because it was untimely, but also          because it is devoid of factual support.4                    D.  Double Jeopardy                    D.  Double Jeopardy                        _______________                    Flores-Rivera   maintains   that  his   conviction  for          conspiracy to import cocaine  and to possess cocaine  with intent          to  distribute cannot stand  because it is  inconsistent with his          acquittal  on the  substantive crimes  charged in  the indictment          (importation  of cocaine,  possession of  cocaine with  intent to          distribute, and use of a  telephone to facilitate the importation          of  cocaine).5  We have addressed similar claims before and found                                        ____________________          4   Flores-Rivera further contends  that it was  improper for the          district court to conduct a portion of its  voir dire in Spanish,          and that this constitutes  reversible error.  Flores-Rivera fails          to identify  any statute or  caselaw requiring that  the district          courts conduct voir dire  entirely in English.  Moreover,  he has          not explained how he  was prejudiced by the bilingual  voir dire,          especially  in light  of  the fact  that  he requested  that  the                                                       _________          district court perform  its voir dire in Spanish.   Consequently,          we deem this argument waived.  See United States v. Zannino,  895                                         ___ _____________    _______          F.2d 1, 17 (1st Cir.)(discussing "the settled appellate rule that          issues adverted to in a perfunctory manner, unaccompanied by some          effort  at developed argumentation, are deemed waived)(collecting          cases), cert. denied, 494 U.S. 1082 (1990).                  ____________          5     Flores-Rivera  also   maintains  that  the   indictment  is          multiplicitous  and violates  the Double  Jeopardy Clause  of the          United States Constitution because the substantive crimes charged          in Counts 3,  4 and 34 are "in fact and  in law" identical to the          overt acts  alleged under  the conspiracy  Count.   This argument          falls short for two  reasons.  First, the Double  Jeopardy Clause          is not implicated here because Flores-Rivera was acquitted of the          substantive crimes  charged in the indictment,  and therefore the          sentencing court did not impose multiple punishments for the same          offense.   See Jones v.  Thomas, 491 U.S.  376, 381 (1989)(noting                     ___ _____     ______          that  the  Double  Jeopardy  Clause  affords  protection  against          multiple punishments  for the  same offense imposed  in a  single          proceeding.); Missouri v. Hunter, 459 U.S. 359, 366 (1983)(noting                        ________    ______                                         -14-          them unavailing.   See,  e.g., United States  v. Gonz les-Torres,                             ___   ____  _____________     _______________          980 F.2d 788 (1st  Cir. 1992); United States  v. L pez, 944  F.2d                                         _____________     _____          33, 41 (1st Cir. 1991).   "It is well settled that  inconsistency          in a  criminal  verdict  does not  require  setting  the  verdict          aside."6 Gonz les-Torres, 980 F.2d at 791 (citing  Dunn v. United                   _______________                           ____    ______          States, 284 U.S. 390, 393-94 (1932); United States v. Powell, 469          ______                               _____________    ______          U.S. 57, 69 (1984); United States v. Bucuvalas, 909 F.2d 593 (1st                              _____________    _________          Cir.1990)).  As we explained in L pez:                                          _____                      Although it may seem inconsistent in this                      case to convict on the conspiracy charge,                      and  acquit the  same  defendant  on  the                      substantive charge alleged  to have  been                      the object of the conspiracy, the Supreme                      Court  has made  it  clear  that  verdict                      inconsistency   in   itself   is  not   a                      sufficient    basis   for    vacating   a                      conviction.                                        ____________________          that  "the Double Jeopardy Clause  does no more  than prevent the          sentencing court  from   prescribing greater punishment  than the          legislature intended").             Second, the  fact that Flores-Rivera's indictment charges both          conspiracy and the substantive  crimes involved in the conspiracy          fails to implicate the Double Jeopardy Clause because it has long          been  the rule  that "a  substantive crime,  and a  conspiracy to          commit that crime, are not the 'same offense' for double jeopardy          purposes."    United  States v.  F lix,  112  S.  Ct. 1377,  1384                        ______________     _____          (1992)(citing  United   States  v.  Bayer,  331   U.S.  532,  542                         _______________      _____          (1947)(noting  that "the same overt acts  charged in a conspiracy          count may also be charged and proved as substantive offenses, for          the agreement to do  the act is distinct from the  act itself"));          see also Pinkerton,  328 U.S.  at 643 ("[T]he  commission of  the          ________ _________          substantive  offense and a  conspiracy to commit  it are separate          and distinct offenses . . . [a]nd the plea of  double jeopardy is          no defense to a conviction for both offenses.").          6   Even so,  the verdicts  are not  inconsistent.   As explained          above,  the substantive crime and the conspiracy to commit it are          separate  offenses.  Callanan v. United States, 364 U.S. 587, 593                               ________    _____________          (1961).                                         -15-                        Verdict inconsistency does not indicate                      that the government necessarily failed to                      prove  an essential  element of  its case                      beyond  a  reasonable doubt.    We cannot                      necessarily assume that the acquittal was                      proper  --  the  one  the   jury  "really                      meant."  It is equally possible  that the                      jury,   convinced   of  guilt,   properly                      reached  its  conclusion on  one offense,                      and then through mistake,  compromise, or                      lenity,   arrived   at  an   inconsistent                      conclusion on the other offense.  As long                      as  the  trial and  appellate  courts are                      convinced  on   independent  review  that                      there was sufficient evidence  to sustain                      a  rational verdict  of  guilt  beyond  a                      reasonable   doubt,   the  defendant   is                      properly  protected  against any  risk of                      injustice     resulting     from    "jury                      irrationality."          L pez, 944 F.2d at  41 (discussing Powell, 469  U.S. 57)(internal          _____                              ______          quotations omitted).  Accordingly,  because we found that Flores-          Rivera's  conspiracy   conviction  is  supported   by  sufficient          evidence, it must stand.                    E.  Prosecutorial Misconduct                    E.  Prosecutorial Misconduct                        ________________________                    Flores-Rivera  claims that  Agent  Tejada's grand  jury          testimony was  replete with  perjury, that the  government either          cooperated  with Agent Tejada or was negligent in allowing him to          testify falsely,  that this prosecutorial misconduct  rose to the          level  of  a  due process  violation,  and  that, therefore,  the          various indictments against him must be dismissed.  Specifically,          Flores-Rivera claims that Agent Tejada misled the grand jury when          he testified (1) that the government's informant, William Cedr s,          was a businessman, (2)  that Cedr s had been arrested  only once,          and  (3)  that  Cedr s   had  infiltrated  the  defendant's  drug          organization  rather than  being  recruited  by authorities  from                                         -16-          within the organization and then "flipping" pursuant to a  formal          cooperation agreement  with the prosecution.   The district court          addressed these issues before trial and found them meritless.  In          particular, the district court found (1) that Cedr s was indeed a          businessman,  (2) that at  the time of  Agent Tejada's testimony,          there was only one arrest listed in Cedr s' criminal history, and          (3) that no evidence substantiated the allegation that Cedr s had          "flipped" pursuant to a formal cooperation agreement.                    In Bank of Nova  Scotia v. United States, 487  U.S. 250                       ____________________    _____________          (1988),   the   Court  provided   the  applicable   standard  for          determining when  errors before the grand  jury warrant dismissal          of an indictment:   "[A]s a general matter,  a district court may          not dismiss an  indictment for errors  in grand jury  proceedings          unless such errors prejudiced  the defendants."  Id. at  254; see                                                           __           ___          also  United States v. Latorre, 922 F.2d 1, 6-7 (1st Cir.), cert.          ____  _____________    _______                              _____          denied, 502 U.S. 876 (1991).  As we explained in United States v.          ______                                           _____________          Valencia-Lucena, 925 F.2d 506, 511 (1st Cir. 1991), errors before          _______________          the  grand jury will often  be deemed harmless  if the defendants          were  subsequently and  properly  convicted before  an  impartial          petit jury:                      [T]he  fact  that  the   defendants  were                      convicted by a petit  jury acts as a cure                      for  any  error which  may  have resulted                      during  grand  jury   proceedings.     An                      indictment   returned    by   a   legally                      constituted and unbiased  grand jury,  if                      valid on its face,  is enough to call for                      trial  of the  charge on  its merits.   A                      court   should   not  inquire   into  the                      sufficiency  of  the evidence  before the                      indicting grand jury,  because the  grand                      jury proceeding is  merely a  preliminary                                         -17-                      phase and  all constitutional protections                      are afforded at trial.  Once a  defendant                      has been  convicted by a petit  jury, the                      petit jury's verdict  of guilty beyond  a                      reasonable doubt  demonstrates a fortiori                      that  there was probable  cause to charge                      the  defendants  with  the  offenses  for                      which  they  were  convicted.    At  that                      point,   our  review   is  limited     to                      determining if the district  court abused                      its discretion in  failing to dismiss the                      indictments.          Valencia-Lucena,  925  F.2d  at  511  (internal   quotations  and          _______________          citations omitted); cf.  United States v.  Osorio, 929 F.2d  753,                              ___  _____________     ______          763 (1st Cir. 1991).  Here, Flores-Rivera  was properly convicted          by a petit jury after he and his codefendants were afforded ample          opportunity to cross-examine Cedr s  at trial.  Moreover, Flores-          Rivera has not  demonstrated that the alleged misconduct  in fact          occurred,  much  less  that  it was  prejudicial  or  outrageous.          Accordingly, we find that  Flores-Rivera's proper conviction by a          petit jury cures any alleged error before the grand jury.7                                        ____________________          7    Nevertheless,  we  repeat  our  prior  admonishment  against          government misconduct, this time  in the context of prosecutorial          misconduct before the grand jury:                      Before  departing  from these  shores, we                      pause to add a qualification:  the use of                      supervisory    power   to    dismiss   an                      indictment, in the  absence of injury  to                      the defendant, may not be entirely a dead                      letter.  The [Supreme]  Court's reasoning                      in   [United  States v.  Hasting] may  be                            ______________     _______                      read to  leave open the  possibility that                      the goal of  deterring future  misconduct                      would justify using the supervisory power                      to    redress   conduct    not   injuring                      defendants  if  the  conduct  is  plainly                      improper,  indisputably   outrageous, and                      not  redressable through  the utilization                      of less drastic disciplinary tools.                                         -18-                    F.  Evidentiary matters                    F.  Evidentiary matters                        ___________________                    Flores-Rivera maintains  that his  trial was  marred by          four  evidentiary  errors, and  that each  constitutes reversible          error.  We address his contentions in turn.                                        ____________________          United States v.  Santana, 6  F.3d 1, 11  (1st Cir.  1993)(citing          _____________     _______          Hasting, 461 U.S. 499, 506 (1983)).          _______                                         -19-                      1.  "Other crimes" evidence:                      1.  "Other crimes" evidence:                    Flores-Rivera's  first  contends  that  the  prosecutor          improperly elicited inadmissible evidence of  "other crimes" from          informant Cedr s.  Cedr s  did allude to the fact  that defendant          Escobar  had  spent  time  in   prison.    Counsel  for   Escobar          immediately  objected  and demanded  a  mistrial.   Flores-Rivera          joined  in this motion.  The court denied the defendants' motions          for mistrial,  issued curative  instructions, and  admonished the          government  to  keep  its  questions simple  to  avoid  eliciting          further  improper  testimony.    Flores-Rivera insists  that  the          curative instructions were insufficient  and that the court erred          in not granting a mistrial.  We disagree.                    Generally, "we  will presume  that juries can  and will          follow   instructions   to   disregard    inadmissible   evidence          inadvertently  presented."   United States v. Mart nez, 922  F.2d                                       _____________    ________          914 (1st Cir. 1991) (citing United States v. Paiva, 892 F.2d 148,                                      _____________    _____          160 (1st  Cir. 1989)).   Here, the risk  of prejudice  to Flores-          Rivera  was  slim  because  Cedr s alluded  only  to  codefendant          Escobar's prison time; Cedr s did not indicate that Flores-Rivera          had also served prison time.  Moreover, the district court issued          a  timely and  forceful  curative instruction,  to which  neither                                         -20-          Flores-Rivera nor Escobar objected.8   Accordingly, we affirm the          district court's refusal to grant a mistrial.                      2.  Pre-conspiracy evidence:                      2.  Pre-conspiracy evidence:                    Flores-Rivera  also  contends that  the  district court          erred  in   admitting  evidence  that  drugs   were  imported  by          codefendants Escobar  and Santos-Caraballo in March  of 1986, one          month  before the  start of  the conspiracy  alleged in  Count 2.          Flores-Rivera notes  correctly that  the evidence  was admissible          against  his codefendants, but not  against him.   He argues that          the  court's  instruction to  this  effect  was insufficient  and          confusing.   This contention has little merit and can be disposed          of quickly.                    To prevent  prejudice  to  the  other  defendants,  the          district court  issued an  extensive limiting instruction  to the          jury, which included the admonishment:                                        ____________________          8  The curative instruction states, in pertinent part:                      . . . I  have stricken the last statement                      made  by Mr. Cedres. . . . You are not to                      consider   it   at   all    during   your                      deliberation.                        [T]he defendants are not on trial today                      except  for  whatever is  charged  in the                      indictment.  And  you're not to consider,                      when  deciding the  issues of  this case,                      matters  that are outside what is charged                      in the indictment.                        And I'm admonishing  the government  to                      keep its  questions simple  . . .  so the                      witness   maintains    his   answer   and                      testimony  within  the  confines  of  the                      questions .  . . so  as not  to bring  in                      facts  which  are  not  alleged   in  the                      indictment.                                         -21-                      [T]his evidence will  only be  considered                      by   you   in  reference   to  defendants                      [Escobar]  and [Santos-Caraballo].   This                      evidence   only  relates  to  them.    It                      doesn't  relate  at  all   whatsoever  to                      Michael Cruz- Gonz lez,  to Eric  Flores-                      Rivera or to  Andr s Morales-Cruz.   They                      are  not involved  in  that.   So if  you                      consider this evidence, it  pertains only                      to those two defendants.          This instruction clearly instructed  the jury that it was  not to          consider  the  pre-conspiracy  evidence   against  Flores-Rivera.          Accordingly,   we  reject  Flores-Rivera's  contention  that  the          admission of this evidence constituted reversible error.                       3.  Statements of co-conspirators:                      3.  Statements of co-conspirators:                    Flores-Rivera  also  contends that  the  district court          misapplied the  co-conspirator exclusion to the  hearsay rule and          thus clearly  erred when it admitted  the out-of-court statements          of codefendant  Escobar.   Federal Rule of  Evidence 801(d)(2)(E)          excludes from the operation of the hearsay rule "a statement by a          coconspirator  of a party during the course and in furtherance of          the  conspiracy."   Fed. R. Evid. 801(d)(2)(E).   "To  invoke the          exception, a party who wants to introduce  a particular statement          must  show by a preponderance  of the evidence  that a conspiracy          embracing both the declarant and the  defendant existed, and that          the  declarant uttered the statement during and in furtherance of          the  conspiracy."  United States v. Sep lveda, 15 F.3d 1161, 1180                             _____________    _________          (1st  Cir.)(citing  Bourjaily v.  United  States,  483 U.S.  171,                              _________     ______________          175-76 (1987); Ortiz, 966  F.2d at 714-15), cert. denied,  114 S.                         _____                        ____________          Ct. 2714 (1994).                                         -22-                    Here, the informant, Cedr s, testified that Escobar had          told  him  that  Flores-Rivera  was a  member  of  the  narcotics          conspiracy.    Flores-Rivera  contends  that this  statement  was          improperly admitted under the co-conspirator exclusion because it          was not  made in furtherance of the conspiracy.  We disagree.  As          we have often explained, a damaging statement is admissible under          801(d)(2)(E)  if  it  "tends  to  advance   the  objects  of  the          conspiracy  as opposed to thwarting its  purpose."  United States                                                              _____________          v.  Fahey, 769  F.2d 829, 839  (1st Cir.  1985); see  also United              _____                                        _________ ______          States v. Masse, 816 F.2d 805, 811 (1st Cir 1987).   The evidence          ______    _____          shows that Escobar intended to make Cedr s "the number two man in          his organization."  Clearly, such a person would need to know the          identities of the  players in the organization, and statements to          this end are  certainly in  furtherance of the  conspiracy.   Cf.                                                                        ___          Sep lveda,  15 F.3d  at  1180  (explaining  that  "it  is  common          _________          ground--and  common sense--that  the  reporting   of  significant          events   by   one   coconspirator   to   another   advances   the          conspiracy")(citing  United States  v. Smith,  833 F.2d  213, 219                               _____________     _____          (10th  Cir. 1987)).  Accordingly, we find that the district court          did  not clearly  err in  admitting the  statement under  the co-          conspirator exclusion to the hearsay rule.                      4.  Identification testimony:                      4.  Identification testimony:                    Lastly,  Flores-Rivera contends that  he was prejudiced          by the  government's use  of photo  spreads  that were  allegedly          impermissibly  suggestive.   Although  his brief  is unclear,  he          appears  to argue that the  photo spreads shown  to two witnesses                                         -23-          were so  impermissibly suggestive  as to render  their subsequent          in-court identifications unreliable and inadmissible.                    The framework for our appellate review is well settled.                      The   Supreme   Court,   in   Manson   v.                                                    ______                      Brathwaite, concluded that reliability is                      __________                      the    "linchpin"    in   deciding    the                      admissibility      of      identification                      testimony.  The Court  directed attention                      to  the  factors  indicating  reliability                      previously  set out  in Neil  v. Biggers,                                              ____     _______                      [including]   the  opportunity   for  the                      witness to view the defendant at the time                      of  the  crime, the  witness's  degree of                      attention,  the accuracy  of   his  prior                      description,   the  level   of  certainty                      demonstrated at the   confrontation,  and                      the  time  between   the  crime  and  the                      confrontation.          United  States v.  Fields,  871 F.2d  188, 195  (1st Cir.)(citing          ______________     ______          Manson v. Brathwaite, 432  U.S. 98, 114 (1977); Neil  v. Biggers,          ______    __________                            ____     _______          409 U.S. 188, 199-200 (1972)), cert. denied, 493 U.S. 955 (1989);                                         ____________          see also United States  v. Guzm n-Rivera, 990 F.2d 681,  683 (1st          ________ _____________     _____________          Cir. (1993).                    Here, Flores-Rivera has not demonstrated  how the photo          spreads  were impermissably suggestive,  except to aver generally          that Flores-Rivera has different facial characteristics than  the          other  persons featured in the display.  The district court judge          rejected  this same  averment  at trial,  stating that  the photo          spreads were among  the fairest he had  seen.  Moreover, even  if          the  photo   spreads  had  been  impermissibly   suggestive,  the          circumstances    indicate    that    the   subsequent    in-court          identifications were reliable.                                         -24-                    Two  witnesses testified  that  they  had seen  Flores-          Rivera purchase aviation fuel at the Isla Grande Flying School on          April 14, 1986,  the  day  that  the Customs  agents  were  shot.          Awilda Torres de Reyes, the owner of the flying school, testified          that  Flores-Rivera had  arrived  in a  flatbed tanker-truck  and          purchased over 100 gallons  of aviation fuel, an unusually  large          amount.  She stated that it required between one and two hours to          complete  the transaction, thus giving her ample time to view the          defendant.  She  testified further that the  transaction stuck in          her mind  because the defendant had purchased  an unusually large          amount  of fuel,  and that  she suspected  that the  purchase was          connected to a drug trafficking scheme because she knew that drug          traffickers often  required large  quantities  of aviation  fuel.          She indicated  that the  transaction became especially  memorable          the  following day when she read that two U.S. Customs agents had          been shot while investigating a narcotics  operation.  She called          the  Customs office  and  informed  them  that  she  had  sold  a          suspiciously large quantity of  aviation fuel on the same  day as          the shooting, and that  she thought that the two  incidents might          be connected.  The second witness who identified Flores-Rivera as          the April  14  fuel-purchaser  was  Ra l Jim nez,  who  was  then          working as a pilot for the Puerto Rico Department of Justice.  He          testified that the incident  was memorable to him because  he was          forced to wait for  over an hour while Flores-Rivera  was filling          the tanks on the flatbed truck.  Mr.  Jim nez also indicated that          he  contacted Customs agents after he heard rumors that a flatbed                                         -25-          tanker truck had  been involved  in the shooting  of two  Customs          agents  on  the night  of the  fuel  purchase.   Accordingly, the          circumstances indicate  that the attention of  both witnesses was          sufficiently focused on  Flores-Rivera, both at  the time of  the          viewing and shortly thereafter.                    At trial, both witnesses evinced certainty that Flores-          Rivera  was  in  fact the  April  14  fuel-purchaser.   The  only          troubling factor  is that their in-court  identifications did not          occur until  February 23,  1993, nearly  seven years  after their          initial viewing at the flying school.  Nevertheless, we find that          the  other reliability criteria  were sufficiently  persuasive to          overcome any unreliability engendered by the delay.  Accordingly,          the district court  did not err  in admitting the  identification          evidence.                    G.  Sentencing challenge                    G.  Sentencing challenge                        ____________________                    Flores-Rivera   contends   that   the  district   court          improperly determined his appropriate base offense level ("BOL").          The district court determined Flores-Rivera's  BOL to be 40 after          it  concluded that between 500 and 1500 kilograms of cocaine were          attributable to  Flores-Rivera  for  sentencing  purposes.    See                                                                        ___          U.S.S.G.   2D1.1(c)(2).  Flores-Rivera contends that the evidence          does not support this conclusion.                    The  determinative  factor  for  sentencing  under  the          guidelines  is the quantity of drugs.   United States v. Reyes, 3                                                  _____________    _____          F.3d 29,  31 (1st Cir.  1993).  That  quantity is the sum  of the          charged  conduct  for  which  defendant  is  convicted  plus  his                                         -26-          "relevant" uncharged conduct.  United States v. Bradley, 917 F.2d                                         _____________    _______          601, 604  (1st Cir. 1990).   "The drug quantity is  to be derived          from all  acts 'that were part  of the same course  of conduct or          common scheme or  plan as  the offense of  conviction.'"   United                                                                     ______          States  v.  Garc a,  954  F.2d  12,  15 (1st  Cir.  1992)(quoting          ______      ______          U.S.S.G.   1B1.3  (a)(2)).   In the  case  of jointly  undertaken          criminal  activity -- whether or  not charged as  a conspiracy --          relevant conduct includes all  acts reasonably foreseeable by the          defendant and committed in  furtherance of the jointly undertaken          activity.   U.S.S.G.    1B1.3, comment.  (n.1); United  States v.                                                          ______________          Castellone, 985 F.2d 21, 24 (1st Cir.  1993); Garc a, 954 F.2d at          __________                                    ______          15.   To include disputed  transactions as relevant  conduct, the          government  must  prove by  a   preponderance  of the  evidence a          sufficient  nexus  between  the conduct  underlying  the disputed          transaction and the offense  of conviction.  See Castellone,  985                                                       ___ __________          F.2d  at 24; United States v. Sklar,  920 F.2d 107, 110 (1st Cir.                       _____________    _____          1990).   We accord considerable deference to the district court's          determination of whether  a given drug transaction  forms part of          the  same course of conduct  as counts of  conviction and, absent          mistake  of law,  will  set aside  its  finding only  if  clearly          erroneous.  Castellone, 985 F.2d at 24; Garc a, 954 F.2d at 15.                      __________                  ______                    Here,   the  evidence  clearly  supports  the  district          court's  conclusion  that  between  500 and  1,500  kilograms  of          cocaine  were   attributable  to  Flores-Rivera   for  sentencing          purposes.  Cedr s testified that Escobar ordered Flores-Rivera to          supervise the  importation of  between 300 and  500 kilograms  of                                         -27-          cocaine from Colombia.  The district court could reasonably  have          attributed   this  quantity   to  Flores-Rivera   for  sentencing          purposes,  and  Flores-Rivera  concedes  as much.    Cedr s  also          testified that the Escobar  Organization was conspiring to import          approximately  1,500  kilograms  of  cocaine  from  Colombia  for          distribution in New York,  and that Flores-Rivera had accompanied          Cedr s  to look  for appropriate  "drop zones"  on the  island of          Vieques.   From  this evidence,  the  district court  could  have          reasonably concluded  that there  was a sufficient  nexus between          Flores-Rivera's conspiracy conviction and the importation efforts          of  the other  members  of the  conspiracy  to attribute  to  him          between  500  and  1500   kilograms  of  cocaine  for  sentencing          purposes.   Accordingly, we find no error in the district court's          determination of Flores-Rivera's BOL.                    We have  considered the other issues  raised by Flores-          Rivera and find them to be similarly meritless.                    Affirmed.                    ________                                         -28-
