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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 93-1608 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                    EUSEBIO ESCOBAR-DE JESUS, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>         ON APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Boudin, Circuit Judge, <br>                Reavley, Senior Circuit Judge,* <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>     Rachel Brill for appellant. <br>     Thomas M. Gannon, attorney, Department of Justice, with whom <br>Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, <br>Assistant United States Attorney, were on brief for appellee. <br> <br> <br> <br> <br> <br>August 2, 1999 <br> <br> <br> <br>                                 <br>                                 <br>                   <br>     *Of the Fifth Circuit, sitting by designation. <br>

  LIPEZ, Circuit Judge.  This case involves a large drug <br>trafficking organization that imported cocaine from Colombia and <br>distributed it in Puerto Rico and New York from 1986 until 1990.  <br>In April 1991, as the climax of a lengthy investigation, a federal <br>grand jury returned a thirty-four count superseding indictment <br>charging defendant-appellant Eusebio Escobar-de Jess ("Escobar") <br>and seventeen other individuals not parties to this appeal with <br>various drug-related offenses.  In April 1993, a jury convicted <br>Escobar of sixteen drug, assault, and weapons-related counts, <br>including Count 1, engaging in a continuing criminal enterprise in <br>violation of 21 U.S.C.  848(a) & (c), and Count 12, causing an <br>intentional killing while engaged in a continuing criminal <br>enterprise in violation of 21 U.S.C.  848(e).  This appeal <br>followed, the disposition of which was deferred pending the Supreme <br>Court's decision in United States v. Richardson, 119 S. Ct. 1717 <br>(1999), on juror unanimity requirements applicable to a continuing <br>criminal enterprise charge.  After careful consideration of the <br>record and Escobar's many arguments on appeal, we affirm all of the <br>convictions.   <br>I.  Background <br>  We recite the facts in the light most favorable to the <br>verdicts, consistent with support in the record. See United States <br>v. Rodrguez, 162 F.3d 135, 140 (1st Cir. 1998).  We summarize <br>below the facts presented during the trial, providing additional <br>details as they become relevant to the discussion. <br>  The March 26, 1986 Lajas Incident <br>  Largely through the testimony of cooperating co-defendant <br>Edwin Soto-Osorio ("Soto"), the government established that on  <br>March 26, 1986, Escobar directed Soto and co-defendants Florentino <br>Rivera-Mojica ("Rivera") and Antonio Santos-Caraballo ("Santos") to <br>accompany him to a dirt road in the middle of a sugar cane field in <br>Lajas to meet a plane containing cocaine from Colombia.  To <br>demarcate the makeshift landing strip, the men placed white lights <br>along the beginning of the road and yellow lights along the end of <br>the road.  The lights were powered by a car battery.  After the <br>plane crash-landed, the four men and several other individuals <br>associated with Escobar retrieved much of the plane's drug cargo <br>and transported it to nearby Loza. Following the departure of <br>Escobar and his associates, law enforcement officers arrived at the <br>scene of the crash and discovered cocaine in the plane.        <br>  The April 14, 1986 Shooting of Customs Agents <br>  On April 14, 1986, co-defendant Eric Flores-Rivera <br>("Flores") drove a yellow truck to the Isla Grande airport and <br>obtained more than one hundred gallons of aviation gasoline.  <br>Surveilling agents then observed Flores drive the yellow truck into <br>the Potrero Cuevas Farm ("the farm") near Carolina.  An agent also <br>observed a blue truck driven by co-defendant Andrs Morales-Cruz <br>("Morales") enter the farm.  Waiting outside the farm, agents heard <br>a plane flying overhead.  Shortly thereafter, agents observed the <br>yellow truck, a white van, and a blue truck driven by Escobar and <br>carrying six passengers (four dressed in camouflage) leave the <br>farm.  Two of the surveilling agents followed the white van to a <br>nearby town, where the van suddenly reversed direction and its <br>occupants opened fire on the agents.  Both agents were seriously <br>wounded. <br>  In the days following the shootings, agents searched the <br>vicinity of the farm and discovered a clandestine landing strip <br>made of dirt.  They also found, inter alia, twenty heavy-duty lamps <br>that had been purchased by Escobar, batteries, and a string that <br>had been stretched along the makeshift landing strip.  Escobar's <br>fingerprints were on one of the lamps, and more than sixty gallons <br>of the aviation fuel which had been brought to the farm by Flores <br>were gone.  Agents found the white van used in the shooting in the <br>Loza River on April 16.        <br>  The November 1989 Intercepted Cocaine Shipment <br>  In 1989 federal authorities began an investigation of <br>Escobar that included court-ordered electronic surveillance and the <br>use of a confidential informant named William Cedrs.  In order to <br>infiltrate Escobar's organization, Cedrs began managing a Loza <br>grocery store and bakery, and, through his acquaintances with co- <br>defendants Rivera and Hctor Ros-Velsquez ("Ros"), was <br>introduced to Escobar.  Through his infiltration of Escobar's <br>organization, Cedrs learned that Escobar directed an organization <br>of at least fourteen members.  <br>  In early November 1989, Escobar and Rivera made plans to <br>deliver a shipment of cocaine from Puerto Rico to New York on a <br>commercial airlines flight. Cedrs expressed interest in <br>participating in the delivery, and Escobar agreed.  On November 21, <br>co-defendant Fernando Faccio-Laboy ("Faccio") delivered eighty <br>kilograms of cocaine to Escobar, who in turn delivered the cocaine <br>to Cedrs in five suitcases.  Rivera and Cedrs placed official <br>inspection seals from the United States Department of Agriculture <br>on the five suitcases and presented them at the check-in counter at <br>the airport.  Rivera and Cedrs boarded the flight, but the <br>suitcases were seized upon arrival in New York by federal <br>authorities.  Rivera called Escobar in Puerto Rico to report the <br>situation.  Escobar later met with Faccio and a representative of <br>the Ochoa family, part of Colombia's Medelln cartel, to discuss <br>the lost cocaine.    <br>  December 1989:  Planning for Future Importations <br>  In December 1989 Escobar began to plan additional <br>importations of cocaine from Colombia to Puerto Rico.  On December <br>9 and December 13, Escobar and several subordinates traveled to <br>Vieques, Puerto Rico, to inspect potential sites for clandestine <br>airstrips to use in importing approximately 1,500 kilograms of <br>cocaine from the Medelln and Cali cartels in Colombia.  On or <br>about December 20, Escobar and his subordinates also discussed the <br>possibility of using a plane to drop the cocaine into the ocean <br>near Gunica, where it would be picked up by speedboats directed by <br>co-defendants Soto and Santos.  During the month of December 1989 <br>Escobar also discussed cocaine importation with Jos Alberto Ochoa- <br>Vasco ("Ochoa"), a representative of the Medelln cartel.  <br>  The Murder of Martn Matos-Cruz <br>  According to Cedrs's testimony, in December 1989 Escobar <br>asked him to kill Martn Matos-Cruz ("Matos"), who was the third- <br>ranking member of Escobar's organization and had fallen out of <br>favor with Escobar.  On January 2, 1990, however, Escobar told <br>Cedrs that he had found another person, co-defendant Michael Cruz- <br>Gonzlez ("Cruz"), to kill Matos.  The same day, Escobar and Cruz <br>traveled to Carolina to identify Matos's residence, and on January <br>3, according to Cedrs's testimony, Cruz shot and killed Matos <br>outside Matos's residence.  On January 5, at Escobar's request, <br>Cedrs gave Cruz $1,500 as a partial payment for the murder.       <br>  The March 1990 Attempted Importation <br>       Throughout January and February 1990, Escobar and his <br>confederates continued to plan drug importations, meeting at least <br>fifteen times to discuss the logistics of the effort.  Between <br>March 5 and March 13, Escobar was in repeated telephone contact <br>with several individuals, including Soto, regarding an anticipated <br>cocaine delivery.  On March 13, Escobar and his men attempted to <br>import 320 kilograms of cocaine by air, but the flight was <br>intercepted by Coast Guard and Customs Service aircraft, causing it <br>to break off and return to Colombia.   <br>  Following this aborted importation, Escobar and his <br>confederates continued to meet during March and April to discuss <br>other ways to successfully import cocaine to Puerto Rico.  On April <br>2, Mesa informed Escobar by telephone that a shipment of cocaine <br>was ready for delivery and that he should arrange to receive it.  <br>Shortly thereafter, however, Escobar entered a drug rehabilitation <br>program in order to avoid revocation of his parole.  Cedrs <br>replaced him in meetings with representatives of the Medelln and <br>Cali cartels, and kept Escobar informed of developments.  On April <br>8, Cedrs and Flores met Escobar at the drug rehabilitation <br>facility to discuss arrangements for the importation.  Before the <br>importation could be executed, however, Escobar was arrested. <br>II.  The Jury Instructions <br>  A.  Continuing Criminal Enterprise <br>  Section 848, often referred to as the "kingpin" statute, <br>makes it a crime to engage in a "continuing criminal enterprise."  <br>The statute provides: <br>    [A] person is engaged in a continuing criminal <br>  enterprise if  <br> <br>    (1) he violates any provision of [the federal <br>  drug laws, i.e.,] this subchapter or <br>  subchapter II of this chapter the punishment <br>  for which is a felony, and <br> <br>    (2) such violation is part of a continuing <br>  series of violations of [the federal drug <br>  laws, i.e.,] this subchapter or subchapter II <br>  of this chapter   <br> <br>        (A) which are undertaken by such person in <br>    concert with five or more other persons <br>    with respect to whom such person occupies <br>    a position of organizer [or supervisor or <br>    manager] and  <br> <br>        (B) from which such person obtains <br>    substantial income or resources. <br>   <br>21 U.S.C.  848(c).  In this case, the jury convicted Escobar of <br>Count 1, charging that he had engaged in a continuing criminal <br>enterprise ("CCE") from on or about April 1986 until the date the <br>indictment was filed, in violation of 21 U.S.C.  848(a) & (c); and <br>of Count 12, charging that he had caused the killing of Martn <br>Matos-Cruz while engaged in the CCE, in violation of 21 U.S.C.  <br>848(e)(1)(A).  <br>  On appeal Escobar argues that the district court erred in <br>failing to grant his proposal to instruct the jurors that, in order <br>to convict under section 848, they must agree unanimously on which <br>underlying violations   of the ten alleged   constituted the three <br>related violations necessary to establish a "continuing series." <br>See United States v. Chagra, 653 F.2d 26, 27-28 (1st Cir. 1981) <br>(noting that other courts have required at least three violations <br>for a "continuing series").  Although recent Supreme Court <br>authority confirms that the district court did err, we conclude <br>that the error in this case was harmless. <br>  In United States v. Richardson, 119 S. Ct. 1707 (1999), <br>the Supreme Court addressed the question whether a jury must agree <br>unanimously about which specific predicate violations make up the <br>"continuing series of violations."  That question turned on whether  <br>the existence of a "series" is itself a single element, as to which <br>the violations are merely underlying "brute facts" not requiring <br>juror unanimity, or whether the individual violations in that <br>series are themselves elements of the offense. See id. at 1710.  <br>Under the former interpretation, jurors, in order to find that a <br>defendant committed a "continuing series of violations" within the <br>meaning of section 848, would need to agree unanimously only that <br>the defendant had engaged in a continuing series of at least three <br>violations; individual jurors would be free to find that continuing <br>series based on the same, overlapping, or entirely different <br>violations.  See id.  Thus, under this theory, a defendant could be <br>convicted of the CCE offense even if jurors could not agree <br>unanimously that the defendant committed any of the alleged <br>violations.  For example, half of the jurors might find that <br>offenses A, B, and C, but no others, were committed and constituted <br>a continuing series, and the other half of the jurors might find <br>that offenses D, E, and F, but no others, were committed and <br>constituted a continuing series.   <br>  Relying on considerations of language, tradition, and <br>potential unfairness, the Supreme Court rejected the notion that <br>the "violations" referred to in section 848 are simply fungible <br>means of satisfying the "series" element of section 848.  See id. <br>at 1709-13.  Rather, the Court held that those "violations" are <br>themselves elements of the offense, meaning that jury unanimity in <br>respect to each individual violation is necessary.  See id.  <br>Accordingly, in cases where the government introduces evidence that <br>the defendant has committed more underlying drug crimes than <br>legally necessary to make up a "series," Richardson requires that <br>they agree unanimously about which crimes make up the continuing <br>series.  See id. at 1709. <br>  In light of Richardson, the government concedes that the <br>district court erred by failing to instruct the jurors that the <br>"violations" are themselves elements of the CCE offense and that <br>they therefore must agree unanimously about which three (or more) <br>drug crimes the defendant committed.  The government argues, <br>however, that the court's error was harmless because the jury <br>separately convicted Escobar of Counts 10, 19, 20, 23, 24, and 33, <br>which were six of the ten predicate offenses alleged to constitute <br>the series.  See supra note 6.  Thus, the government observes, the <br>jurors must have unanimously agreed that Escobar committed six of <br>the alleged violations, which was more than enough to constitute a <br>"series."  See Chagra, 653 F.2d at 27-28.  <br>  We have previously recognized that some uncertainty <br>exists about whether a jury instruction that misdefines or omits an <br>element of the offense charged is susceptible to harmless error <br>review. See United States v. Marder, 48 F.3d 564, 573 (1st Cir. <br>1995); United States v. Whiting, 28 F.3d 1296, 1309, 1309 n.12 (1st <br>Cir. 1994) (collecting cases).  The Supreme Court recently <br>addressed this question in Neder v. United States, 119 S. Ct. 1827 <br>(1999), in which the Court ruled that the trial court's omission <br>during its jury instructions of an essential element of the offense <br>charged (namely, the materiality element of a tax offense) is <br>subject to harmless error review.  See id. at 1833-36.  In Neder, <br>the Court observed that an error is "structural," and therefore not <br>subject to harmless error review, only in a "'very limited class of <br>cases,'" id. at 1833 (quoting Johnson v. United States, 520 U.S. <br>461, 468 (1997)), and that it had on many occasions applied <br>harmless error analysis to cases involving improper instructions on <br>a single element of the offense, see id. at 1834 (citing Yates v. <br>Evatt, 500 U.S. 391 (1991) (mandatory rebuttable presumption); <br>Carella v. California, 491 U.S. 263 (1989) (per curiam) (mandatory <br>conclusive presumption); Pope v. Illinois, 481 U.S. 497 (1987) <br>(misstatement of element); Rose v. Clark, 478 U.S. 570 (1986) <br>(mandatory presumption)).  Such omissions, the Court stated, <br>"differ[] markedly from the constitutional violations we have found <br>to defy harmless-error review," such as the complete denial of <br>counsel or trial before a biased judge. Id. at 1833.  Accordingly, <br>where a court omits or misdescribes an essential element of the <br>offense, as happened here by the court's failure to instruct the <br>jury that the "violations" were themselves elements of the CCE <br>crime and that they therefore must agree unanimously which <br>violations make up the "continuing series," the conviction must <br>nonetheless be affirmed if the reviewing court can conclude beyond <br>a reasonable doubt that a rational jury would have found the <br>defendant guilty absent the error.  See id. at 1838. <br>  In this case, the jury's decision to convict Escobar on <br>Counts 10, 19, 20, 23, 24, and 33   which were alleged to be <br>predicate violations supporting the CCE count    necessarily <br>establishes that the jurors agreed unanimously that he was guilty <br>of those offenses.  This decision ensures that the concern at the <br>core of the Richardson decision   namely, that jurors might convict <br>a defendant of a CCE on the basis of violations for which there was <br>non-unanimity   is not present.  The guilty verdicts on Counts 10, <br>19, 20, 23, 24, and 33 are tantamount to the jury having found  <br>that he committed each of these violations for the purposes of the <br>CCE count.  <br>  That is not the end of the matter, however.  Section 848 <br>also requires that jurors agree that the "series" of violations be <br>"continuing" in nature   that is, that they be related to each <br>other in some way.  See United States v. Edmonds, 80 F.3d 810, 814 <br>(3d Cir. 1996) (citing United States v. Jones, 801 F.2d 304, 307 <br>(8th Cir. 1986); United States v. Baker, 905 F.2d 1100, 1104 (7th <br>Cir. 1990)).  Although the guilty verdicts on Counts 10, 19, 20, <br>23, 24, and 33 erase as a matter of logic any concern that the jury <br>did not agree that Escobar actually committed the offenses making <br>up the series, we can affirm the CCE convictions only if we can <br>conclude beyond a reasonable doubt that the jury, had it been <br>properly instructed, would have found that at least three of those <br>counts were related to each other.  <br>  The evidence introduced to support the separate <br>convictions on those counts also establishes inescapably their <br>relatedness.  The counts involved Escobar's ongoing and persistent <br>efforts to import and distribute cocaine over a finite period of <br>time in late 1989 and early 1990.  After the failed importation <br>attempt in late 1989 (Count 10), Escobar re-grouped and tried again <br>in March 1990 (Counts 19, 20, 23, and 24).  After failing once <br>again in March, he began planning for another attempt in April 1990 <br>(Count 33).  The relatedness of the counts is demonstrated by their <br>proximity in time and identity of purpose, and we conclude beyond <br>a reasonable doubt that the jury, had it been properly instructed, <br>would have found that the counts were "continuing" in nature.  See <br>id. at 825; United States v. King, 169 F.3d 1035, 1041 (6th Cir. <br>1989).  Accordingly, we conclude that the court's refusal to <br>instruct the jurors that they must agree unanimously about which <br>violations make up the "continuing series" of violations, within <br>the meaning of section 848(c)(2), was harmless.   <br>  B. The Telephone Facilitation Counts <br>  Escobar also argues that the district court erred in its <br>instructions to the jury on three telephone facilitation counts, <br>which charged him with using a telephone in facilitating the <br>importation of cocaine in violation of 21 U.S.C.  843(b).  <br>Specifically, Escobar contends that the district court should have <br>expressly instructed the jury that in order to convict under <br>section 843(b), it had to find that the underlying drug offenses <br>alleged to have been facilitated by his telephone use   namely, the <br>importations   were actually committed.  Because Escobar did not <br>object to the district court's instructions during the trial and <br>raises this issue for the first time on appeal, we review only for <br>plain error.  See Fed. R. Crim. P. 52(b); Johnson v. United States, <br>520 U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S. 725, <br>732 (1993).  <br>  The federal courts have uniformly held that, to obtain a <br>conviction on a charge of telephone facilitation pursuant to <br>section 843, the government must prove commission of the underlying <br>offense.  See United States v. Iennaco, 893 F.2d 394, 396-97 (D.C. <br>Cir. 1990); United States v. Dotson, 895 F.2d 263, 264 (6th Cir. <br>1990)(citing United States v. McGhee, 854 F.2d 905, 908 (6th Cir. <br>1988)); United States v. Johnstone, 856 F.2d 539, 543 (3d Cir. <br>1988); United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); <br>United States v. Russo, 796 F.2d 1443, 1463-64 (11th Cir. 1986); <br>United States v. Rey, 641 F.2d 222, 224 n.6 (5th Cir. 1981); United <br>States v. Webster, 639 F.2d 174, 189 (4th Cir. 1981); United States <br>v. Watson, 594 F.2d 1330, 1342-43 (10th Cir. 1979); United States <br>v. Steinberg, 525 F.2d 1126, 1133-34 (2d Cir. 1975).  But Escobar's <br>challenge, though predicated on section 843(b)'s requirement that <br>the underlying drug offense have been committed, is more specific:  <br>he assigns error to the district court's failure to expressly <br>charge the jury regarding this requirement (over and above <br>recitation of the statutory language). On this narrower <br>instructional point, there is little authority.  Indeed, we have <br>discovered only one case that has addressed whether a district <br>court must instruct the jury in the manner urged by Escobar.  See <br>Dotson, 895 F.2d at 263 (holding that the district court should <br>have expressly charged the jury that it had to find underlying <br>crimes were actually committed, but concluding that the court's <br>error was harmless).  <br>  Although the language of section 843(b) itself arguably <br>conveys without any need for elaboration the requirement of a jury <br>finding that the underlying drug offense was committed, we agree <br>that an instruction would have clarified any potential ambiguity in <br>section 843(b)'s language on that point.  See id. at 264.  However, <br>given the scarcity of authority mandating such an instruction, <br>combined with the nature of the alleged instructional error, we <br>cannot conclude that any error in the court's instructions was <br>"plain," see Olano, 507 U.S. at 734 (for the purposes of Rule <br>52(b), the word "plain" is synonymous with "clear," or, <br>equivalently, "obvious"), or that it affected Escobar's substantial <br>rights or denigrated the judicial proceedings, see Johnson, 520 <br>U.S. at 467.  <br>III.  The Jury Selection <br>  We next consider Escobar's Batson-based claim that his <br>convictions must be vacated because of deficiencies in the jury <br>selection process.  See Batson v. Kentucky, 476 U.S. 79 (1986).  <br>His argument, although difficult to parse, appears to be two- <br>pronged. First, he contends that the district court's conclusion <br>that he failed to establish a prima facie case of discrimination in <br>the government's use of its peremptory strikes was clearly <br>erroneous.  Alternatively, he says that even if he did fail to <br>establish a prima facie case, the district court's erroneous ruling <br>on voir dire questions made it impossible for him to establish a <br>prima facie case. We disagree with both contentions.   <br>  During the jury selection process, defense counsel  <br>requested the court to order that the government provide race- <br>neutral explanations for its peremptory strikes of two African- <br>American men, contending that these strikes demonstrated a <br>"pattern" of removing African-American men that raised an inference <br>of racial discrimination. The government denied that the strikes <br>were racially motivated, but did not offer a race-neutral <br>explanation. The court denied Escobar's request, reasoning that six <br>or seven African-American individuals remained in the jury pool and <br>that there was insufficient evidence to establish a "pattern" of <br>strikes.     <br>   The three-part framework that must be applied to equal <br>protection challenges to the government's use of a peremptory <br>strike is well established.  First, a defendant must make a prima <br>facie showing of discrimination in the government's use of its <br>peremptory strike.  See Batson, 476 U.S. at 96-97.  If the <br>defendant fulfills this requirement, the government must then <br>proffer a race-neutral explanation for having challenged the juror.  <br>See id. at 97. Finally, if the government meets its burden of <br>production by proffering a race-neutral explanation, the district <br>court must then decide whether the defendant has carried the <br>ultimate burden of proving that the government's use of its <br>peremptory strike constituted purposeful discrimination.  See id.; <br>Hernndez v. New York, 500 U.S. 352, 358-59 (1991).  In challenging <br>the government's use of peremptory strikes, the defendant retains <br>the burden of proof throughout. See United States v. Bergodere, 40 <br>F.3d 512, 515 (1st Cir. 1994).   <br>  Although the prima facie case requirement "is not <br>onerous, neither can it be taken for granted."  Bergodere, 40 F.3d <br>at 516.  To satisfy his burden of establishing a prima facie case, <br>Escobar was required to have shown, inter alia, "circumstances <br>sufficient . . . to raise an inference that the prosecutor struck <br>the venireperson on account of race."  Id.  All relevant <br>circumstances are to be considered in determining whether the <br>defendant has established a prima facie case, see Batson, 476 U.S. <br>at 96-97; Chakouian v. Moran, 975 F.2d 931, 933-34 (1st Cir. 1992), <br>and the district court's ruling on this fact-sensitive question <br>must be upheld unless it is clearly erroneous, see Bergodere, 40 <br>F.3d at 516.  <br>  Although it is true that a "pattern" of strikes against <br>African-Americans is one circumstance which may raise an inference <br>of discrimination, see Batson, 476 U.S. at 97, the district court's <br>conclusion that the government's two strikes failed to demonstrate <br>such a "pattern" was not clearly erroneous, particularly in light <br>of the court's observation that six or seven African-Americans were <br>seated in the jury pool at the time of the strikes and that six or <br>seven African-Americans were eventually selected to serve on the <br>jury.  See, e.g., United States v. Sangineto-Miranda, 859 F.2d <br>1501, 1521-22 (6th Cir. 1988) (noting that composition of the <br>ultimate jury sworn may be relevant to Batson prima facie inquiry).  <br>Moreover, Escobar does not suggest, nor do we discern, that the <br>prosecutor's questions and statements during the voir dire <br>examination of potential jurors raise any inference of racially <br>motivated strikes. See id. (noting that "the prosecutor's questions <br>and statements during voir dire examination and in exercising his <br>challenges may support or refute an inference of discriminatory <br>purpose").  We find no clear error in this case.       <br>  Alternatively, Escobar points out that during voir dire <br>he proposed that the district court ask potential jurors questions <br>related to racial bias, which he argued were necessary because <br>Escobar is African-American and because "there is racism in Puerto <br>Rico."  The court denied the request, reasoning that there was no <br>indication that racial animosity or racial motive was an issue in <br>the case.  Escobar now claims that the court's refusal to question <br>jurors about their potential racial bias hindered his later efforts <br>to establish a prima facie case of discriminatory intent in the <br>government's use of its peremptory strikes to remove the two <br>African-American men during the jury selection process. <br>  To the extent that Escobar does in fact challenge <br>directly the court's denial of his request to question potential <br>jurors about racial prejudice (and it is unclear whether he makes <br>this challenge), we find that the voir dire conducted in this case <br>was sufficient.  While the Supreme Court has held that under <br>certain circumstances the possibility of racial prejudice makes <br>special voir dire questioning constitutionally mandated, see Turner <br>v. Murray, 476 U.S. 28 (1986) (involving sentencing of black <br>defendant who had been convicted of a capital offense); Ham v. <br>South Carolina, 409 U.S. 524 (1973)(involving black civil rights <br>activist whose defense to drug charge was that he had been framed <br>by white police), voir dire ordinarily need not include questions <br>regarding racial prejudice, see United States v. Brown, 938 F.2d <br>1482, 1485 (1st Cir. 1991).  "The mere fact that a defendant is <br>black does not alone trigger the special questioning requirement <br>found in Ham and Turner."  Id.  Rather, it is "[o]nly when there <br>are more substantial indications of the likelihood of racial or <br>ethnic prejudice" that a trial court is required to ask potential <br>jurors about the issue of racial bias.  Id. (quoting Rosales-Lpez <br>v. United States, 451 U.S. 182, 190 (1981)).  The only <br>justifications for the special questioning asserted by defense <br>counsel were that his client is African-American and that "racism <br>exists in Puerto Rico."  Standing alone, these are not the special <br>circumstances that would require a district court to ask potential <br>jurors if racial prejudice would be a factor in their decision- <br>making process.   <br>  Furthermore, we fail to perceive how the district court's <br>refusal to question jurors about racial bias impeded Escobar's <br>ability to establish a prima facie case of discrimination in the <br>government's use of its peremptory strikes, and Escobar does not <br>adequately explain the connection.  Even if the court had granted <br>Escobar's request to question potential jurors about racial bias, <br>such questioning would have revealed only the potential jurors' <br>racial biases, enabling either party to remove prejudiced jurors <br>for cause.  We do not see how such questioning could have shed <br>light on the government's allegedly improper motives for exercising <br>its peremptory strikes, evidence of which was lacking in Escobar's <br>efforts to establish a prima facie case under Batson.   <br>  Finally, Escobar challenges the constitutionality of 28 <br>U.S.C.  1865(b)(2) & (3), which require that jurors be able to <br>speak the English language and be able to read, write, and <br>understand the English language with a degree of proficiency <br>sufficient to fill out satisfactorily the juror qualification form.  <br>Having previously considered and rejected this contention, see <br>United States v. Flores-Rivera, 56 F.3d 319, 326, 326 n.4 (1st Cir. <br>1995)(citing United States v. Aponte-Surez, 905 F.2d 483, 992 (1st <br>Cir. 1990)), we decline to revisit the issue. <br>IV.  Prosecutorial Misconduct <br>  Escobar claims that cooperating co-defendant Soto's <br>testimony created a false impression about the extent to which Soto <br>could benefit from pleading guilty and testifying for the <br>government, and that the prosecutor's failure to correct this <br>misleading testimony resulted in reversible error.  We find nothing <br>false or misleading about Soto's testimony.          <br>  Before Escobar's trial, Soto entered into a plea <br>agreement which provided, inter alia, that he would plead guilty to <br>a drug conspiracy count; that he understood that he may be <br>sentenced to a term of imprisonment not less than ten years; that <br>he acknowledged that the government could move the court to impose <br>a sentence below the sentencing range dictated by the sentencing <br>guidelines based on his substantial assistance; and that if he <br>fully complied with the agreement, the government would not <br>prosecute him for other drug crimes resulting from information <br>provided by him and that the government would move to dismiss the <br>remaining charges against him.   <br>  During the trial, Escobar's defense counsel cross- <br>examined Soto about the plea agreement, asking inter alia whether <br>Soto was aware that the government had the discretion to move the <br>court to impose a sentence of less than ten years.  Soto responded <br>that he was not aware of this; that he expected to receive a <br>sentence of eight to ten years instead of the thirty years to life <br>which would have been imposed if he had not entered into the plea <br>agreement; and that he had discussed the plea agreement with his <br>attorney only in a "overall way" and not "part by part."  Escobar <br>now claims reversible error based on Soto's failure to disclose <br>that the government could move the court to impose a sentence below <br>the statutory minimum and the government's silence on the matter.  <br>  It is true, of course, that the government may not <br>knowingly use false testimony to obtain a conviction, even if the <br>false testimony goes only to a witness's credibility.  See Napue v. <br>Illinois, 360 U.S. 264, 269 (1959) (finding due process violation <br>where witness falsely denied that he would receive any benefit from <br>government in exchange for his testimony).  In this case, however, <br>Soto's testimony simply cannot be characterized as false or <br>misleading.  First, the plea agreement itself simply stated that <br>the government had the discretion to move the court to impose a <br>sentence below the statutory minimum.  The government had not <br>promised to file such a motion.  Moreover, Escobar points to <br>nothing in the record suggesting that Soto was not truthful about <br>his understanding of the plea agreement and what his sentence was <br>likely to be.  When questioned about the numerous benefits he had <br>been promised pursuant to the agreement, Soto testified <br>forthrightly, and there can be little doubt that the jury was <br>presented with sufficient evidence to allow it to make a <br>discriminating appraisal of Soto's motives to testify.  See United <br>States v. Devin, 918 F.2d 280, 293 (1st Cir. 1990).  <br> <br>V.  Evidentiary Matters <br>     A.  The March 26, 1986 Lajas Incident <br>  Escobar argues that the court erred by allowing the <br>introduction of evidence, including the testimony of co-operating <br>co-defendant Soto, concerning the March 26, 1986 airdrop at Lajas <br>("the Lajas incident").  Escobar characterizes the Lajas incident <br>as evidence of a prior bad act, and contends that the district <br>court erred by concluding that it was admissible under Fed. R. <br>Evid. 404(b) as proof of the Escobar organization's modus operandi, <br>or, alternatively, as proof of the knowledge and intent of the <br>organization's members to carry out a major drug trafficking <br>scheme.  <br>  The district court's pre-trial order denying Escobar's <br>motion in limine, however, did not premise the admissibility of the <br>Lajas incident evidence solely on Rule 404(b) grounds.  Rather, the <br>court also ruled that the Lajas incident evidence was not "prior <br>bad act" evidence at all, as the incident fell within the temporal <br>scope of the conspiracy alleged in the indictment and pertained to <br>the same conspiracy alleged in the indictment.  Because we agree <br>with the latter theory of admissibility, we need not address the <br>district court's determination that the evidence was admissible <br>under Rule 404(b).  See United States v. Arboleda, 929 F.2d 858, <br>865 (1st Cir. 1991); United States v. Tejada, 886 F.2d 483, 487 <br>(1st Cir. 1989).   <br>  The indictment alleged that the conspiracy began "on or <br>about April 1986."  The Lajas incident occurred on March 26, 1986.  <br>Given the closeness in time of the Lajas incident to April 1986, we <br>have little difficulty concluding that the Lajas incident is fairly <br>encompassed by the temporal scope of the conspiracy alleged in the <br>indictment.  See United States v. Paredes-Rodrguez, 160 F.3d 49, <br>56 (1st Cir. 1998) ("reference to approximate dates in an <br>indictment is not binding and thus the scope of the indictment may <br>cover prior events") (citing United States v. Fisher, 3 F.3d 456, <br>461 n.12 (1st Cir. 1993);  United States v. Crocker, 788 F.2d 802, <br>805 (1st Cir. 1986) ("approximate dates in an indictment are not <br>controlling")); see also United States v. Morris, 700 F.2d 427, 429 <br>(1st Cir. 1983) ("Where a particular date is not a substantive <br>element of the crime charged, strict chronological specificity or <br>accuracy is not required.").  Moreover, the temporal proximity and <br>factual similarity of the Lajas incident and the April 14th alleged <br>airdrop provide adequate evidence that the Lajas incident stemmed <br>from the same conspiratorial agreement to import and distribute <br>cocaine.  The events were separated by a period of only two-and-a- <br>half weeks, employed nearly identical means (e.g., an airdrop at a <br>clandestine airstrip illuminated by battery-powered lights), and <br>involved the same illegal purpose of importing and distributing <br>cocaine.  In these circumstances, we conclude that the Lajas <br>incident served as an additional overt act within the conspiracy <br>charged, and was properly admitted as direct evidence of the <br>conspiracy itself. See Tejada, 886 F.2d at 487 ("Where evidence of <br>'bad acts' is direct proof of the crime charged, Rule 404(b) is, of <br>course, inapplicable.").                 <br>  B.  The 1988 Heroin Purchase <br>  At trial, cooperating co-defendant Rosa Rodrguez-Campos <br>("Rodrguez") testified pursuant to a plea agreement that she was <br>a long-time drug trafficker and that in 1990 she agreed to loan <br>Escobar money to finance his importation of cocaine from Colombia <br>to Puerto Rico.  As part of its direct examination of Rodrguez <br>concerning her role in the alleged conspiracy, the government <br>sought to introduce her testimony that Escobar purchased $90,000 <br>worth of heroin from her in 1988.  The district court allowed <br>Rodrguez to testify that Escobar had purchased heroin from her, <br>reasoning that the heroin purchase, although uncharged in the <br>indictment, was relevant and admissible because it helped to <br>explain the history between Rodrguez and Escobar and her <br>willingness to finance Escobar's cocaine trafficking venture.  <br>Escobar claims that the district court erred by admitting this <br>testimony concerning the heroin transaction, arguing that it was <br>outside the scope of the charged conspiracy (which pertained only <br>to cocaine, not heroin) and that it was elicited solely for the <br>purpose of showing his propensity to commit drug crimes in <br>violation of Fed. R. Evid. 404(b). <br>  Evidence that a defendant on trial for one crime has been <br>involved in another crime or bad act is inadmissible under Fed. R. <br>Evid. 404(b) if it is offered solely to prove the criminal <br>character of the defendant or his propensity to commit crimes of <br>the sort for which he is on trial.  See United States v. <br>Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996); United States v. <br>Johnston, 784 F.2d 416, 423 n.10 (1st Cir. 1986) (citing United <br>States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984)); United States <br>v. Fosher, 568 F.2d 207, 212 (1st Cir. 1978).  Rule 404(b), <br>however, is not exclusionary. See Fosher, 568 F.2d at 212; 2 Jack <br>B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence,  <br>404.20[3] (2d ed. 1997).  Rather, the rule permits the introduction <br>of uncharged bad act evidence if the evidence is relevant for <br>purposes other than proof of a defendant's bad character or <br>criminal propensity, subject only to the limitations of Rule 403.  <br>See United States v. Spinosa, 982 F.2d 620, 628 (1st Cir. 1992); <br>Johnston, 784 F.2d at 423 n.10 (citing Fosher, 568 F.2d at 212).  <br>  In a conspiracy case, evidence of other bad acts, subject <br>always to the requirements of Rule 403, can be admitted to explain <br>the background, formation, and development of the illegal <br>relationship, see United States v. Prevatte, 16 F.3d 767, 775-76 <br>(7th Cir. 1994); United States v. Jones, 982 F.2d 380, 382-83 (9th <br>Cir. 1993); United States v. Passarella, 788 F.2d 377, 383-84 (6th <br>Cir. 1986); United States v. Magnano, 543 F.2d 431, 435 (2d Cir. <br>1976); and, more specifically, to help the jury understand the <br>basis for the co-conspirators' relationship of mutual trust, see <br>United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998); United <br>States v. Pipola, 83 F.3d 556, 565-56 (2d Cir. 1996); United States <br>v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993); United States v. Daz, <br>994 F.2d 393, 395 (7th Cir. 1993).  As the district court observed, <br>see supra note 19, the heroin purchase was important to show how a <br>relationship of trust had developed between Escobar and Rodrguez <br>through other similar drug transactions, which in turn explained <br>why Rodrguez would have agreed to finance Escobar's cocaine <br>trafficking venture as she claimed.  Such evidence was specially <br>probative of the conspiratorial agreement that existed between <br>them, a fact which was directly in issue and material to the case. <br>See United States v. Spaeni, 60 F.3d 313, 316 (7th Cir. 1995).  <br>  Moreover, the potential of prejudice from the heroin <br>purchase evidence, although undeniably present in some quantum, did <br>not substantially outweigh its probative value.  Rodrguez's <br>testimony regarding the heroin purchase, although brief, was <br>critical to set the stage for the rest of her testimony concerning <br>the formation, nature, and extent of her conspiratorial <br>relationship with Escobar, and it represented only a tiny fraction <br>of the incriminating evidence presented to the jury during the <br>course of the trial.  In these circumstances, we find no abuse of <br>discretion in the district court's decision to admit the challenged <br>testimony.  <br>  C.  The Wiretap Evidence  <br>  Escobar challenges the district court's denial of his <br>motion to suppress evidence derived from intercepted telephone <br>communications, which he says violated Title III of the Omnibus <br>Crime Control and Safe Streets Act of 1968, 18 U.S.C.  2510-2522.  <br>  In March 1990 the district court issued a wiretap order <br>authorizing the interception of communications on telephone line <br>809-256-2600, which was installed at Escobar's business, Sueo Real <br>Construction Company ("Sueo Real").  According to the district <br>court's findings (which are not challenged on appeal), Escobar <br>broke the telephone's receiver in February or March 1990 and <br>refused to pay the telephone bills after becoming upset that people <br>had used the Sueo Real telephone to make long-distance phone <br>calls.  Cedrs thereafter "extended a phone line" to Cedrs's <br>grocery business, Colmado El Coqu, which was adjacent to Sueo <br>Real, and paid the phone bills to keep the line in service.  <br>Escobar knew that Cedrs had extended the phone line, and in fact <br>used the extension line in Colmado El Coqu himself on several <br>occasions. <br>  Escobar argues that the intercepted communications must <br>be suppressed because they occurred at Colmado El Coqu, rather <br>than at the location specified in the wiretap order, Sueo Real.  <br>To support this contention Escobar relies on 18 U.S.C.  2518(4), <br>which provides that the order authorizing an interception specify <br>five items, including "the nature and location of the  <br>communications facilities as to which, or the place where, <br>authority to intercept is granted."  18 U.S.C.  2518(4)(b).   The <br>order's authorization, he argues, was limited to the telephone line <br>at issue, which in turn was limited to the confines of Sueo Real.  <br>  We agree that by its terms the order authorized <br>interception of conversations occurring on the telephone line <br>denominated 809-256-2600, which was located in Sueo Real.  We find <br>nothing in the statute, however, that requires the wiretap order to <br>have identified the particular locations of various extensions of <br>that telephone line, nor does Escobar cite any authority for that <br>proposition.  The telephone line remained located in Sueo Real, as <br>provided in the wiretap order, even though it had apparently been <br>rigged with a long extension cord to enable a person to access the <br>line from a remote location (i.e., the adjacent Colmado El Coqu).  <br>  Moreover, assuming arguendo that section 2518(4)(b) does <br>require an order to identify the particular locations of various <br>extensions of the same telephone line, it is well-settled that not <br>every failure to comply fully with any requirement provided in <br>Title III necessitates suppression. See United States v. <br>Cunningham, 113 F.3d 289, 293-94 (1st Cir. 1997); see also United <br>States v. Donovan, 429 U.S. 413, 433-34 (1977); United States v. <br>Chavez, 416 U.S. 562, 574-75 (1974); 18 U.S.C.  2515, <br>2518(10)(a).  Rather, "violations of even . . . central <br>requirements do not mandate suppression if the government <br>demonstrates to the court's satisfaction that the statutory purpose <br>has been achieved despite the violation."  Cunningham, 113 F.3d at <br>293-94 (quoting United States v. Johnson, 696 F.2d 115, 121 (D.C. <br>Cir. 1982)).  To the extent that Title III is designed to protect <br>privacy interests similar to those reflected in the Fourth <br>Amendment, see id. at 294, that statutory purpose was served by the <br>district court's finding of probable cause to intercept and by the <br>order's inclusion of other items of particularity, including the <br>identity of the person whose communications were to be intercepted, <br>the nature and location of the telephone line to be intercepted, a <br>particular description of the type of communication sought to be <br>intercepted, and a statement of the particular offense to which the <br>communications relate, see 18 U.S.C.  2518(4).  Inclusion of the <br>particular location of various extensions of the telephone line <br>(whose location was properly identified in the order) would not <br>have substantially furthered the statutory objectives of protecting <br>privacy interests and ensuring that intercept procedures are used <br>only in "those situations clearly calling for the employment of <br>this extraordinary investigative device." United States v. <br>Giordano, 416 U.S. 505 527 (1974).  The district court properly <br>denied Escobar's suppression motion.  <br> <br>VI.  Variance <br>  Escobar contends that his conviction on Count 20, <br>charging him with attempted importation, must be reversed because <br>of a fatal variance between the indictment and the evidence offered <br>at trial.  Count 20 of the indictment charged, inter alia, that the <br>March 13, 1990 attempted importation took place "at Guayama, Puerto <br>Rico, in the District of Puerto Rico, and elsewhere and within the <br>jurisdiction of this Court."  At trial, informant Cedrs testified <br>that the attempted importation took place "around the town of <br>Gunica, that part of the southern coast of Puerto Rico."  Escobar <br>moved to strike all evidence related to Count 20 because the <br>indictment referred to Guayama, not Gunica.  Noting that both <br>towns were in the southern part of Puerto Rico and that they were <br>"not that far apart," the district court denied the motion.  <br>  A variance arises when the proof at trial depicts a <br>scenario that differs materially from the scenario limned in the <br>indictment.  See United States v. Paredes-Rodrguez, 160 F.3d 49, <br>56 (1st Cir. 1998); United States v. Arcadipane, 41 F.3d 1, 6 (1st <br>Cir. 1994); United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. <br>1993).  A variance requires reversal of a conviction "only if [the <br>variance] is both material and prejudicial, for example, if the <br>variance works a substantial interference with the defendant's <br>right to be informed of the charges laid at his doorstep."  <br>Arcadipane, 41 F.3d at 6.  Where an indictment gives a defendant <br>"particular notice of the events charged, and the proof at trial <br>centers on those events, minor differences in the details of the <br>facts charged, as contrasted to those proved, are unlikely to be <br>either material or prejudicial." Id.  <br>  We note preliminarily our reluctance to characterize what <br>happened here as a variance at all, given the breadth of the <br>indictment's description of the physical location of the attempted <br>importation ("Guayama, Puerto Rico, in the District of Puerto Rico, <br>and elsewhere and within the jurisdiction of this Court") and the <br>ambiguity of Cedrs's testimony (namely, that the attempted <br>importation took place "around the town of Gunica, that part of <br>the southern coast of Puerto Rico").  In any event, whatever <br>discrepancy may have existed between the indictment and the <br>evidence adduced at trial was neither material nor prejudicial.  <br>The location of the attempted importation was not an element of the <br>crime; both towns are in southern Puerto Rico, and are within the <br>district court's jurisdiction; and Escobar does not contend that <br>the indictment's allegations caused him to be misinformed of the <br>charges against him.  In his closing argument to the jury, Escobar <br>pointed out the purported variance and other evidence that he <br>considered to be contradictory.  It was the jury's province to <br>resolve any conflicts in the evidence about the attempted <br>importation, see United States v. Angiulo, 847 F.2d 956, 967 (1st <br>Cir. 1988), and it rejected Escobar's arguments.  In these <br>circumstances, we find no merit to Escobar's claim of a fatal <br>variance.      <br>VII.  Sufficiency of the Evidence <br>  Escobar challenges the sufficiency of the evidence <br>supporting his convictions on the CCE counts (counts 1 and 12); the <br>assault counts (counts 5 and 6); the weapons counts (counts 7, 15, <br>16); and one interstate travel count (count 18).  In considering <br>his sufficiency challenges, we must take the evidence in a light <br>most favorable to the verdicts, drawing all plausible inferences <br>and resolving all credibility determinations in their favor.  See <br>United States v. David, 940 F.2d 722, 730 (1st Cir. 1991).  The <br>evidence may be entirely circumstantial, and the government need <br>not disprove every hypothesis of innocence.  See Rodrguez, 162 <br>F.3d at 141; United States v. Hahn, 17 F.3d 502, 506 (1st Cir. <br>1994) (quoting United States v.  Batista-Polanco, 927 F.2d 14, 17 <br>(1st Cir. 1991)).  We must affirm the verdicts "so long as any <br>rational trier of the facts could have found the essential elements <br>of the crime[s] beyond a reasonable doubt." David, 940 F.2d at 730. <br>  A.  Continuing Criminal Enterprise   <br>  A conviction under 21 U.S.C.  848 for engaging in a CCE <br>requires proof that the defendant (1) committed a felony drug <br>offense, (2) as part of a continuing series of such violations, (3) <br>in concert with five or more persons in relation to whom he acted <br>as a supervisor, organizer, or manager, (4) and from which he <br>obtained substantial income or other resources.  21 U.S.C.  848; <br>see United States v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994); see <br>also United States v. Chagra, 653 F.2d 26, 27-28 (1st Cir. 1981) <br>(noting that courts have required three or more violations to <br>constitute a "continuing series"). Escobar asserts that the <br>government failed to establish the second, third, and fourth <br>elements of the CCE offense.   <br>  As to the second element, Escobar contends (1) that the <br>evidence did not establish that the alleged violations were of a <br>"continuing" nature   that is, that they were related to one <br>another, and (2) that the counts related to the 1990 planned <br>importations cannot constitute predicate offenses under the CCE <br>statute because those importations were too "inchoate and <br>incomplete."  For the reasons previously set forth in part II(A) <br>supra, we find ample evidence of the relatedness of Counts 10, 19, <br>20, 23, 24, and 33. Furthermore, we find nothing in section 848 <br>that limits predicate offenses to successful, completed drug <br>importations in the manner suggested by Escobar. See 21 U.S.C.  <br>848 (predicate offenses may consist of "violations of [subchapter <br>I] or subchapter II of [chapter 13]).      <br>  Turning to the third element under the CCE statute, <br>Escobar argues that the government failed to prove that he <br>"occupie[d] a position of organizer, a supervisory position, or any <br>other position of management,"  21 U.S.C.  848, with respect to at <br>least five individuals.  In determining whether a defendant <br>organized, supervised, or managed a criminal enterprise, we give <br>those terms their ordinary meaning.  See David, 940 F.2d at 731; <br>see also United States v. Rouleau, 894 F.2d 13, 14 (1st Cir. 1990) <br>(operative terms must be read in the disjunctive and are distinct <br>in their meaning).  Further, there is no requirement that the five <br>individuals be shown to have acted in concert or contemporaneously, <br>see David, 940 F.2d at 731 (citing United States v. Tarvers, 833 <br>F.2d 1068, 1075 (1st Cir. 1987)), nor must the jurors agree on the <br>particular identities of the henchmen, see id. (citing United <br>States v. Aiello, 864 F.2d 257, 264 (2d Cir. 1988); United States <br>v. Lueth, 807 F.2d 719, 731 (8th Cir. 1986)).        <br>  In this case, Escobar does not expressly dispute that he <br>acted as an organizer, supervisor, or manager with respect to four <br>individuals.  Indeed, there is ample evidence in the record that <br>Escobar acted in such capacity with respect to co-defendant Soto in <br>the March 5, 1990, telephone offense (Count 19); with respect to <br>Santos in the March 13, 1990 telephone offense (Count 20); and with <br>respect to co-defendants Ismael Santiago-Corujo ("Santiago") and <br>Flores during the conspiracy offense in connection with the April <br>1990 plans to import cocaine by sea (Count 2).  Escobar does <br>dispute, however, that he acted as an organizer, supervisor, or <br>manager with respect to a fifth individual, co-defendant Rivera, <br>during the November 21, 1989, drug offense.  Specifically, he <br>contends that the evidence showed that he had only "an interest" in <br>the transaction, given that Faccio, not he, was the original owner <br>of the cocaine.   <br>  To be an organizer, supervisor or manager within the <br>meaning of 21 U.S.C.  848, however, the defendant "need not be the <br>dominant organizer or manager of the enterprise; he need only <br>occupy some managerial position with respect to five or more <br>persons."  Rodrguez, 162 F.2d at 142 (quoting Hahn, 17 F.3d at 506 <br>n.4)).  As to the November 21, 1989 incident, there was evidence <br>that after receiving the cocaine from Faccio, Escobar delivered it <br>to Cedrs, who in turn arranged for Rivera and co-defendant Ros to <br>smuggle the drugs onto a commercial airline flight; that Escobar <br>purchased airline tickets; and that upon arriving in New York <br>Rivera called Escobar to report that the cocaine had been lost.  <br>Moreover, Cedrs testified generally that as to at least fourteen <br>individuals, including Rivera, Escobar was "the top man, the person <br>who would plan, the person who would organize and the person who <br>would order all aspects of the organization." This evidence was <br>sufficient for a rational jury to find that Rivera was acting under <br>the direction of Escobar on November 21, 1989 for the purposes of <br>the CCE statute.        <br>  Finally, Escobar contends that the government failed to <br>prove that he obtained substantial income or other resources from <br>the CCE.  The substantial income requirement is meant "to exclude <br>trivial amounts derived from occasional drug sales," Hahn, 17 F.3d <br>at 507, and may be proven directly (by evidence of revenue or <br>resources) or circumstantially (such as by evidence of the <br>defendant's position in the criminal organization and the volume of <br>drugs handled by the organization), see id.  In this case, the <br>government introduced evidence showing that from 1985 to 1989 <br>Escobar made expenditures of $238,766 for which no income source <br>could be identified; that in 1989 he spent approximately $300,000 <br>in cash, $216,000 of which came from unidentified sources; and that <br>his net worth as of October 1989 was more than one million dollars.  <br>This evidence entitled the jury to conclude that Escobar obtained <br>"substantial income or resources" within the meaning of section <br>848.  Although Escobar contends that the government's evidence <br>contained inconsistencies and that Escobar's flush financial <br>situation could have a benign explanation, he made those arguments <br>to the jury, which was free to reject them.  See United States v. <br>Arango-Echeberry, 927 F.2d 35, 38 (1st Cir. 1991); United States v. <br>Angiulo, 847 F.2d 956, 967 (1st Cir. 1988).   The evidence was <br>sufficient to support Counts 1 and 12.           <br>  B.  Assaults on the Customs Officers <br>  Escobar argues that the court erred in instructing the <br>jury that it could convict on counts 5 and 6 (charging him with the <br>April 14, 1986 shootings of the customs officers) on the basis of <br>Pinkerton liability, as there was insufficient evidence to <br>establish his participation in a conspiracy on that date. <br>Specifically, Escobar contends that the absence of any direct <br>evidence of an importation actually having occurred on April 14th <br>made it impossible for any rational factfinder to conclude that a <br>conspiracy existed; and that, in any event, the evidence <br>established only his mere presence at the scene where some of the <br>conspiratorial activities allegedly took place.  Without <br>sufficient evidence of his participation in a conspiracy on the <br>evening of April 14th, he argues, the Pinkerton instruction was <br>improper.   <br>  To prove the elements of a conspiracy, the government <br>must show beyond a reasonable doubt that the "defendant and one or <br>more coconspirators intended to agree and . . . to commit the <br>substantive criminal offense which was the object of their unlawful <br>agreement."  United States v. Tejeda, 974 F.2d 210, 212 (1st Cir. <br>1992) (quoting United States v. Lpez, 944 F.2d 33, 39 (1st Cir. <br>1991)) (alteration in original); see United States v. Cruz, 981 <br>F.2d 613, 616 (1st Cir. 1992).  No particular formalities attend <br>this showing: the agreement may be express or tacit and may be <br>proved by direct or circumstantial evidence.  See United States v. <br>Seplveda, 15 F.3d 1161, 1173 (1st Cir. 1993); United States v. <br>Gmez-Pabn, 911 F.2d 847, 853 (1st Cir. 1990).  Indeed, "[d]ue to <br>the clandestine nature of criminal conspiracies, the law recognizes <br>that . . . a common purpose and plan may be inferred from a <br>development and collocation of circumstances." Tejeda, 974 F.2d at <br>212 (quoting United States v. Snchez, 917 F.2d 607, 610 (1st Cir. <br>1990)) (internal quotation marks omitted).   <br>  Applying these standards here, we conclude that there was <br>sufficient evidence to support the Pinkerton charge.  First, <br>contrary to Escobar's assertion, the fact that the government <br>introduced no direct evidence of contraband having been imported by <br>plane on April 14th does not preclude the jury from concluding that <br>Escobar and his cohorts were engaged in a conspiracy to achieve <br>such ends.  Proof of the conspiracy's objective having been <br>accomplished is not required to sustain a conspiracy conviction.  <br>See David, 940 F.2d at 735 (noting that "the law is well-settled <br>that a criminal conspiracy can exist despite the eventual failure <br>of its objective").    <br>  As to Escobar's claim that the evidence established only <br>his mere presence at the scene of the conspiratorial activities, <br>see, e.g., United States v. Ocampo, 964 F.2d 80, 82 (1st Cir. <br>1992), we disagree.  Proof of participation in a conspiracy may <br>consist of circumstantial evidence, and jurors are "neither <br>required to divorce themselves from their common sense nor to <br>abandon the dictates of mature experience."  United States v. <br>Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).  The government presented <br>evidence that on April 14th co-defendant Flores purchased more than <br>one hundred gallons of aviation gasoline; that Flores and co- <br>defendant Morales entered the Potrero Cuevas Farm in separate <br>vehicles; that law enforcement agents waiting nearby then heard a <br>plane flying overhead; that shortly thereafter agents observed <br>several vehicles exit the farm, including a truck driven by Escobar <br>that carried six passengers, four of whom were dressed in <br>camouflage; that a few days later agents searching the farm <br>discovered a clandestine landing strip, battery-powered lamps that <br>had been purchased by Escobar (one of which had Escobar's <br>fingerprints on it), and sixty gallons of missing aviation fuel.  <br>The jury was entitled to infer from this evidence Escobar's <br>participation, rather than mere presence, in the conspiratorial <br>activities.  See United States v. Batista-Polanco, 927 F.2d 14, 18 <br>(1st Cir. 1991); Tejeda, 974 F.2d at 213 ("[T]he factfinder may <br>fairly infer . . . that it runs counter to human experience to <br>suppose that criminal conspirators would welcome innocent <br>nonparticipants as witnesses to their crimes.").  The evidence was <br>sufficient to support the Pinkerton charge.   <br>  C.  The Weapons Charges <br>  Escobar was charged in Count 7 with possessing a machine <br>gun in violation of 18 U.S.C.  922(o)(1).  In Counts 15 and 16, <br>he was charged with possessing firearms as a convicted felon in <br>violation of 18 U.S.C.  922(g)(1).  With respect to both Counts <br>7 and 16, Escobar's main contention is that the uncorroborated <br>testimony of informant Cedrs concerning the weapons charges cannot <br>suffice to support his convictions. Cedrs's testimony, even if <br>uncorroborated, was sufficient to support Escobar's conviction <br>because it was not "incredible or insubstantial on its face."  <br>United States v. Gmez-Pabn, 911 F.2d 847, 853 (1st Cir. 1990) <br>(quoting United States v. Aponte-Surez, 905 F.2d 483, 489 (1st <br>Cir. 1990)).  Escobar also claims that the evidence showed that he <br>was not the actual owner of the machinegun at issue in Count 7.  <br>There is nothing in the statute to suggest, however, that liability <br>under section 922(o)(1) turns on actual ownership; rather, that <br>section makes it unlawful to "transfer or possess" a machinegun.  <br>18 U.S.C.  922(o)(1). <br>  As to Count 16, charging him with possessing a firearm as <br>a convicted felon, Escobar further contends that his possession of <br>the firearm at issue was too brief to support a conviction.  Cedrs <br>testified that in January 1990 co-defendant Fernando Montaez- <br>Bultrn ("Montaez") gave the firearm to Escobar, and that at some <br>point thereafter Escobar gave the firearm to Cedrs with <br>instructions to keep it until Montaez and co-defendant Cruz asked <br>for it.  This testimony is sufficient.  Even if Escobar actually <br>possessed the firearm for a short period of time, duration of <br>possession is not an element of the statute.  See 18 U.S.C.  <br>922(g)(1).  Moreover, a defendant's possession need not be actual; <br>constructive possession is encompassed by section 922(g)(1) as <br>well.  See United States v. Wight, 968 F.2d 1393, 1398 (1st Cir. <br>1992) (holding that "as long as a convicted felon knowingly has the <br>power and the intention at a given time of exercising dominion and <br>control over a firearm or over the area in which the weapon is <br>located, directly or through others, he is in possession of the <br>firearm").    <br>  Finally, with respect to Count 15, also charging him with <br>possessing a firearm as a convicted felon, Escobar notes that (1) <br>the firearm at issue was, under the government's theory of the <br>case, actually possessed by co-defendant Cruz and used to execute <br>Matos; and (2) the jury acquitted Cruz of the killing.  Escobar <br>argues that Cruz's acquittal on the murder charge indicates that <br>there was insufficient evidence to show that Cruz actually <br>possessed the firearm; and that if there was insufficient evidence <br>to show that Cruz actually possessed the firearm, then a fortiori <br>there was insufficient evidence to show that Escobar constructively <br>possessed the firearm.  The logic of Escobar's argument falters at <br>the threshold.  Cruz's acquittal on the murder charge does not <br>establish that Cruz did not actually possess the firearm in <br>question, nor does it establish that Escobar did not constructively <br>possess the firearm.  Moreover, even if the verdicts were <br>inconsistent (which they are not), this would not justify the <br>vacation of Escobar's conviction under Count 15.  See United States <br>v. Powell, 469 U.S. 57, 69 (1984).   The evidence was sufficient to <br>support the challenged weapons convictions. <br>  D.  The March 1990 Interstate Travel Charge <br>  Finally, Escobar challenges the sufficiency of the <br>evidence supporting his conviction on Count 18 for aiding and <br>abetting the interstate travel of co-defendant Jorge "Papo Luciano" <br>Valds-Alvarez ("Valds") to promote Escobar's drug trafficking, in <br>violation of 18 U.S.C.  1952 & 2.  To establish a violation of <br>section 1952, the government must prove: (1) interstate travel or <br>use of an interstate facility; (2) with the intent to distribute <br>the proceeds of or otherwise promote, manage, establish, carry on, <br>or facilitate an unlawful activity; (3) followed by performance or <br>attempted performance of acts in furtherance of the unlawful <br>activity.  See United States v. Arruda, 715 F.2d 671, 681 (1st Cir. <br>1983); United States v. Coran, 589 F.2d 70, 72 (1st Cir. 1978).  <br>While Escobar concedes that Cedrs's testimony may have established <br>that Valds traveled from Miami to Puerto Rico (a necessary <br>concession in light of the evidence), Escobar nonetheless contends <br>that the evidence was insufficient to establish that Valds' <br>purpose in such travel was "to promote, manage, establish, carry <br>on, or facilitate" Escobar's drug trafficking operation.  Cedrs <br>testified, however, that after the attempted importation of March <br>13, 1990, Escobar spoke of using a friend from Miami, "Papo <br>Luciano," to assist in the importation of drugs through the <br>northeastern coast of Puerto Rico; and that in a recorded telephone <br>conversation, Escobar mentioned a "Georgie" whom he had brought to <br>Puerto Rico from Florida to participate in shipments that were <br>being planned through the northeastern coast of Puerto Rico.  This <br>unambiguous testimony was sufficient to allow the jury to conclude <br>beyond a reasonable doubt that Valds had traveled to Puerto Rico <br>intending to promote, manage, establish, carry on, or facilitate <br>Escobar's drug trafficking activities, and not for some lawful <br>purpose.   <br>VIII.  Conclusion <br>  For the foregoing reasons, we affirm Escobar's <br>convictions in all respects. <br>  Affirmed.                                                      </pre>

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