          United States Court of Appeals
               For the First Circuit

Nos. 02-1105
     02-1107
     02-1108
     02-1072
     02-1269

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

         FELIX MERCADO IRIZARRY; MANUEL VAZQUEZ-MENDEZ;
           ELIEZER MORERA-VIGO; HERNAN VAZQUEZ-MENDEZ;
                    GERMAN RODRÍGUEZ RODRÍGUEZ,

                     Defendants, Appellants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                              Before

                       Selya, Circuit Judge,
                  Coffin, Senior Circuit Judge,
                    and Lynch, Circuit Judge.


     Ignacio Fernández de Lahongrais for appellant Felix Mercado
Irizarry.
     David W. Roman, with whom Brown & Ubarri was on brief, for
appellant Manuel Vazquez-Mendez.
     Ramon M. Gonzalez for appellant Eliezer Morera-Vigo.
     Michael J. Cruz for appellant Hernan Vazquez-Mendez.
     Jean Philip Gauthier for appellant German Rodríguez Rodríguez.
     Sonia I. Torres-Pabón, Assistant United States Attorney,
Chief, Criminal Division, with whom H.S. Garcia, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Senior Appellate Attorney, and Thomas F. Klumper, Assistant United
States Attorney, were on brief, for appellee.


                         April 11, 2005




                               -2-
          LYNCH, Circuit Judge.        Nineteen individuals, including

appellants Felix Mercado Irizarry, Hernan Vazquez-Mendez, Eliezer

Morera-Vigo, Manuel Vazquez-Mendez, and German Rodríguez Rodríguez,

were indicted on one count of conspiracy to distribute in excess of

one kilogram of heroin, five kilograms of cocaine, and fifty grams

of cocaine base, in violation of 21 U.S.C. § 846.      Defendants were

charged with distributing drugs through several drug points in the

Tibes Public Housing Project in Ponce, Puerto Rico, from 1992 until

the return of the indictment in 2000.

           All defendants save these five appellants pled guilty to

the charge. After a seventeen-day jury trial, the five appellants

were found guilty.   The court sentenced each to life imprisonment.

Each appeals from both the verdict of guilt and the life sentence,

save Hernan Vazquez-Mendez, who appeals only his sentence.

                                  I.

Challenges to Conviction

Mercado Irizarry

          Mercado first argues that he was deprived of a fair trial

based on the cumulative effect of various alleged evidentiary

errors: admission of three statements about Mercado's involvement

in murders and of other evidence of two murders committed in

furtherance of the conspiracy.    He also argues for the first time

here that the government committed a Brady violation.        Brady v.

Maryland, 373 U.S. 83 (1963).


                                 -3-
          The first two challenged statements were made by Edwin

Melendez-Negron, a co-conspirator who pled guilty to the conspiracy

and became a cooperating witness for the government.           Melendez-

Negron testified that Mercado told him that Mercado was the driver

of the car during the murder of a man named Hueso.              On cross

examination,   when   Melendez-Negron    was    confronted     with     his

previously made contradictory statements, Melendez-Negron admitted

that Mercado never told him anything about Heuso's murder.        But he

testified that Mercado was present when a man named Melito and

Melendez-Negron discussed Hueso's murder.        Mercado argues that,

because Melendez-Negron retracted his earlier statement, the judge

should have stricken Melendez-Negron's first statement from the

record and instructed the jury not to consider it.

          Melendez-Negron   then    testified   that   the   murderer    of

Hueso, a man named Melito, told Melendez-Negron that Mercado helped

him kill Hueso.   This statement was admitted under Fed. R. Evid.

801(d)(2)(E) as a statement made by a co-conspirator in furtherance

of the conspiracy.    Mercado argues that the statement was wrongly

admitted under the co-conspirator exception because the evidence

was that the murder was a result of a personal vendetta, and not in

furtherance of the drug conspiracy.

          The final statement was by a police agent, Edwin Rosado

Vega, who testified about prior consistent statements made by

Melendez-Negron regarding Hueso's murder.       This was permitted by


                                   -4-
the   district    court    on   the    basis   that   it    was    duplicative   of

Melendez-Negron's sworn statement already in evidence.                 That sworn

statement was introduced into evidence by the defense when cross

examining Melendez-Negron, in an attempt to impeach his earlier

testimony.     Although the defense introduced the sworn statement of

Melendez-Negron, Mercado now argues that Melendez-Negron's sworn

statement was made after his motive to fabricate a story regarding

Hueso's murder arose, because the statement was made after he

agreed   to    cooperate    with      the   government     and    testify   against

Mercado.      As a result, he argues, it was error to admit Rosado's

statement.

              Mercado further argues that the district court erred in

allowing any evidence of the murder of Hueso, and evidence of

another murder allegedly committed by Mercado of a man named Wally,

because of a lack of evidence that these murders were committed in

furtherance of the conspiracy.              He argues that the only evidence

that the murder of Wally was related to the conspiracy is the

testimony of Julio Valentin Medina, who testified that he heard

that Mercado killed Wally because of a "debt" and because he was a

"stool pigeon."     Mercado argues that this evidence is insufficient

to show that Wally's murder was in furtherance of the conspiracy.

              Finally, Mercado argues that the government committed a

Brady violation by presenting testimony of the murders of Edwin and

Michel Vázquez as overt acts in furtherance of the conspiracy,


                                        -5-
despite the fact that the government had in its possession a sworn

statement from a different cooperating witness that these murders

were unrelated to the conspiracy, which it did not disclose to the

defense.       Mercado does not argue that the Brady violation itself

warrants a new trial, but rather he argues that the disclosure of

the statement would have allowed the court to perform a more

informed balancing test under Fed. R. Evid. 403, and that balancing

may   have     led    to    this   evidence      being   disallowed   as   unfairly

prejudicial.         Further, he argues that the failure to disclose the

statement      impeded      his    cross   examination     of   the   government's

testifying witness.           The government denies there was any Brady

violation.

               We review the district court's evidentiary rulings as to

preserved claims for abuse of discretion. United States v. Balsam,

203 F.3d 72, 84 (1st Cir. 2000).

               The district court did not abuse its discretion in

admitting the statements of Melendez-Negron or Officer Rosado.

First,    as    to    the    testimony     of    Melendez-Negron,     Mercado   has

impermissibly switched the basis for his argument twixt trial and

appeal.      His trial counsel did not move to have Melendez-Negron's

earlier statement stricken on the ground, argued now, that the

witness had disavowed his earlier testimony.                Rather, he asked the

judge to strike any testimony relating to the murder of Hueso on

the ground that there was inadequate evidence that the murder was


                                           -6-
in furtherance of the conspiracy.         The "in furtherance" evidence

was sufficient, for reasons described later. Considering his newly

advanced argument on appeal, there was no plain error, and no error

at all.      It was up to the jury to evaluate the statements,

including the contradictions.

          As to the second statement, that Melito told Melendez-

Negron that Mercado helped him kill Hueso, there was adequate

evidence that the murder of Hueso was in furtherance of the

conspiracy. This statement was admissible under the co-conspirator

exception.   Fed. R. Evid. 801(d)(2)(E).      Mercado attempts to argue

that Melito wanted to kill Hueso because Hueso stole drugs from him

at a time before Melito joined the Tibes conspiracy, and therefore

the murder could not have been found to be in furtherance of the

Tibes conspiracy.      This is not so.        When Melito and Mercado

murdered Hueso, they both worked for Melendez-Negron at Tibes,

Melendez-Negron supplied them with the weapons to kill Hueso, and

he instructed them to do so away from the Tibes Public Housing

Project so as not to draw attention to the drug points.             The

government introduced evidence that the Tibes conspiracy had a

pattern of killing those who had wronged members of the conspiracy

in order to protect the conspiracy; there is adequate evidence that

the murder of Hueso was a part of this pattern.

          As    to   Officer   Rosado's    testimony   concerning   what

Melendez-Negron had told him about Hueso's murder, the district


                                  -7-
court correctly ruled that this was admissible under Rule 801(d)(1)

because Melendez-Negron's consistent sworn statement about the

murder had already been introduced into evidence by the defense in

an attempt to impeach his direct testimony.

          It is also clear that evidence of the murders of Hueso

and Wally were not erroneously admitted.        There was adequate

evidence that each of these murders was committed in furtherance of

the conspiracy.    As to the evidence about Wally's murder, the

government introduced testimony that Mercado murdered Wally because

he owed a debt and because he was a "stool pigeon."

          As to the unpreserved argument of an alleged Brady

violation, we note that the statement in question was referred to

in multiple reported cases before the start of Mercado's trial, and

could easily have been discovered by Mercado's counsel, thus it is

doubtful there is any Brady claim.       In any event, given the

corroborating testimony that the murders in question were committed

in furtherance of the conspiracy, and the amount of evidence

implicating Mercado in the conspiracy, he cannot carry his burden

of showing that the alleged violation affected the result of the

proceeding.   See United States v. Conley, 249 F.3d 38, 45 (1st Cir.

2001).




                                -8-
Morera-Vigo

          Morera-Vigo makes the same arguments that Mercado does

about admission of evidence of the murders of Hueso and Wally.                We

reject them for the same reasons.

          In addition, Morera-Vigo argues that the court erred in

allowing evidence of murders and drug dealing committed at other

drug points in Ponce.          He argues that there was a different

conspiracy run by Angela Ayala, whose only connections to the Tibes

conspiracy were that one of her drug points was in the Tibes Public

Housing Project and that she acted as a supplier to other drug

points there.       He argues that evidence of Angela Ayala's drug

activities at drug points other than her drug point at Tibes, and

evidence of murders committed to protect those drug points, was

improperly    and    prejudicially      admitted     into     evidence.       The

government introduced this evidence on the theory that dealers at

several drug points in and around the Tibes Public Housing Project

assisted each other in their drug distribution efforts and in the

protection    of    their   drug    points,   and   that    its   admission   was

necessary to understand the full scope of the conspiracy.

          We bypass the question of admissibility; any error was

harmless. Independently, there was more than adequate evidence for

the jury to convict Morera-Vigo, including testimony and in-court

identifications       by    three     different      cooperating      witnesses

implicating Morera-Vigo as a co-conspirator selling drugs and


                                       -9-
committing violent acts to protect the conspiracy.      There was also

forensic evidence linking Morera-Vigo to murders committed in

furtherance of the conspiracy.

          In pro-se supplemental and reply briefing, defendant

Morera-Vigo for the first time attempts to challenge his conviction

based on the fact that "drug type and quantity was not submitted to

the jury," and "the jury was not instructed to determine guilt on

the elements of drug type and quantity."       This argument is both

factually and legally incorrect.      The judge did instruct the jury

that, through the special verdict form, they would be asked to

determine both drug type and a minimum drug quantity for each

defendant found guilty of the conspiracy.     Citing United States v.

Perez-Ruiz, 353 F.3d, 20 (1st Cir. 2003), Morera-Vigo argues that

this was insufficient because the jury did not find an amount of

drugs attributable to him specifically, rather than the conspiracy

as a whole. This argument misunderstands our case law. Perez-Ruiz

goes to the maximum sentence available based on the jury verdict of

guilt in a conspiracy.   Id. at 15.     Perez-Ruiz says nothing about

the vacation of a conviction for conspiracy based on lack of an

individualized   quantity   determination.      The    district   court

instructed the jury on all the elements of the crime, namely,

conspiracy to distribute drugs in violation of 21 U.S.C. § 846, and

the jury found all the elements of the crime.         This argument is

meritless.


                                 -10-
Rodríguez Rodríguez

              Rodríguez     argues     that    the    district    court      erred   in

allowing the government to present testimony by five witnesses

(Melendez-Negron, Enrique Malave Diaz, Gamalier Douglas, Julio

Valentin Medina, and Joel Irizarry-Rosario), who had entered into

cooperation agreements with the government which ensured them

leniency in exchange for their testimony.                    He argues that such

agreements gave each a motivation to present false testimony, and

that   such    testimony     was     unfairly    prejudicial.           Testimony    of

cooperating witnesses is common and appropriate.                      There are also

adequate procedural safeguards.               See United States v. Dailey, 759

F.2d 192, 200 (1st Cir. 1985) (cooperating witness testimony

permissible,        but   agreements    should       be   read   to    jury,   defense

permitted      to    cross-examine      about    agreements,          and   cautionary

instruction should be given to jury about nature of agreement and

risk created thereby).          There is no claim that such procedural

safeguards were ignored in this case; rather, Rodríguez claims that

such testimony is inherently unreliable and should have been

excluded.      This claim is meritless.

Manuel Vazquez-Mendez

              Manuel Vazquez-Mendez argues that the district court

erred in denying his Fed. R. Crim. P. Rule 29 motion for acquittal.

He argues that there was testimony about at least six individuals

named "Manuel," and the jury was left to speculate as to whether he


                                        -11-
was     any   of     them.     Further,   he   argues   that   the   evidence

affirmatively implicating him showed only his involvement with a

different drug point involved in a different conspiracy, and

therefore the government did not carry its burden of showing his

involvement in the Tibes drug conspiracy that was charged in the

indictment.

              We review the denial of a Rule 29 motion for acquittal de

novo.    United States v. Moran, 312 F.3d 480, 487 (1st Cir. 2002).

In doing so we must decide, viewing the evidence in the light most

favorable to the verdict of guilt, whether a reasonable factfinder

could find the defendant guilty of the crime beyond a reasonable

doubt. Id. There was ample evidence to find Manuel Vazquez-Mendez

guilty of the charged conspiracy.              A cooperating witness, Joel

Irizarry-Rosario, made a valid in-court identification of Manuel

Vazquez-Mendez, testified that he was involved with selling drugs

at the Tibes Housing Project, and gave detailed testimony that

Manuel Vazquez-Mendez was part of a group that hunted down and

killed a rival drug dealer named Papito who was at war with the

Tibes conspiracy.            Further, the government submitted forensic

evidence      that    corroborated   Irizarry-Rosario's    testimony    about

Manuel Vazquez-Mendez's involvement in this murder.             Viewing the

evidence in the light most favorable to the verdict of guilt, there

was adequate evidence to find Manuel Vazquez-Mendez guilty of the

conspiracy.


                                      -12-
Sentencing

          In the aftermath of United States v. Booker, 125 S. Ct.

738 (2005), and United States v. Antonakopoulos, 399 F.3d 68, 76

(1st Cir. 2005), and acknowledging that each defendant preserved

his claims of sentencing error, the government agreed to a remand

for resentencing of all.1       Although pre-Booker, the sentencing

court was required by the Guidelines, because it found the murder

cross-reference in USSG §2D1.1(d)(1) to be applicable, to impose a

life sentence, the statute permitted but did not require imposition

of a life sentence.    The Guidelines are now advisory and the judge

is no longer mandated to impose a life sentence, so given the

government's concession, remand is appropriate.          Of course, we

intimate no view on what sentences should be imposed on remand.

             We make one comment as to a sentencing claim made by

defendants    Hernan   Vazquez-Mendez,   Eliezer   Morera-Vigo,   Manuel

Vazquez-Mendez, and German Rodríguez Rodríguez.        In supplemental

briefing, each of these defendants claims that the maximum penalty

he may receive based on the jury verdict alone is twenty years, the

default statutory maximum derived from the catch-all provision in



     1
      The government also concedes that the supervised release term
for Mercado of ten years was in error; the Guidelines provided for
a five-year term and the ten-year term is available only as an
upward departure. Further, it concedes that the district court
erred in delegating to the probation office the number of drug
tests Morera-Vigo must undergo during his supervised release term,
pursuant to this court's holding in United States v. Melendez-
Santana, 353 F.3d 93 (1st Cir. 2003).

                                 -13-
21 U.S.C. § 841(b)(1)(C).       This is so, they argue, because the jury

did not make individualized quantity determinations as to the type

and quantity of drugs that were attributable to each defendant

specifically, but rather only determined drug type and quantity

attributable to the conspiracy as a whole.

          This argument is mistaken. The indictment specified drug

type and quantity for each defendant.              In addition, the district

court instructed the jury that it would be asked to find beyond a

reasonable    doubt    the   drug   type    and    quantity    stated   in   the

indictment    for     each   defendant     found    guilty    of   joining   the

conspiracy. Further, the jury was given a special verdict form for

each defendant, which stated:

             Do you unanimously agree by proof beyond a
             reasonable doubt that the quantity of cocaine
             which was distributed and/or intended to be
             distributed as part of the conspiracy was five
             kilograms or more?
             Do you unanimously agree by proof beyond a
             reasonable doubt that the quantity of heroin
             which was distributed and/or intended to be
             distributed as part of the conspiracy was one
             kilogram or more?

The jury answered yes to both questions of the special verdict form

for all five defendants.       As the case law of this circuit has made

abundantly clear, the maximum statutory penalty available to the

district court at sentencing for a defendant convicted of a drug

conspiracy is based on the drug quantity and amount reflected in

the jury verdict attributable to the conspiracy as a whole. United

States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003).               Here, since

                                    -14-
the jury found all defendants guilty of a conspiracy to distribute

greater than one kilogram of heroin and five kilograms of cocaine,

the relevant statutory maximum penalty would be the penalty set

forth in 21 U.S.C. § 841(b)(1)(A), which is life imprisonment.

Conclusion

          The conviction of each defendant is affirmed.       The

sentence for each defendant is vacated and the cases remanded for

reconsideration of the sentence of each defendant in light of

United States v. Booker, 125 S. Ct. 738 (2005).

          So ordered.




                              -15-
