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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 96-1711 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>          EULALIO CANDELARIA-SILVA, A/K/A GATILLO MACHO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 96-1712 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>              RAUL ORTIZ-MIRANDA, A/K/A CANO BEEPER, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 96-1713 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                     MOISES CANDELARIA-SILVA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 96-1714 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      CELENIA REYES-PADILLA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 96-2275 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      JOSE A. ROSADO-ROSADO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 96-2362 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                    NELSON MIGUEL ORTIZ-BAEZ, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 96-2364 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      ROSA MORALES-SANTIAGO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Lynch and Lipez, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Raymond L. Snchez-Maceira, by appointment of the Court, for <br>appellant Eulalio Candelaria-Silva. <br>    G. Richard Strafer, by appointment of the Court, with whom <br>Quion & Strafer, P.A., was on brief, for appellant Ral Ortiz- <br>Miranda. <br>    Enrique Vlez-Rodrguez, by appointment of the Court, for <br>appellant Moiss Candelaria-Silva. <br>    Salvador Prez-Mayol, by appointment of the Court, for <br>appellant Celenia Reyes-Padilla. <br>    Lydia Lizarribar-Masini, by appointment of the Court, for <br>appellant Jos Rosado-Rosado. <br>    Rafael Anglada-Lpez, by appointment of the Court, for <br>appellant Nelson Miguel Ortiz-Bez. <br>    Marlene Aponte-Cabrera, by appointment of the Court, for <br>appellant Rosa Morales-Santiago. <br>    Lena D. Watkins, Trial Attorney, Narcotic and Dangerous Drug <br>Section, Criminal Division, U.S. Department of Justice, with whom <br>James K. Robinson, Assistant Attorney General, Criminal Division, <br>U.S. Department of Justice, Theresa M.B. Van Vliet, Chief, Narcotic  <br>and Dangerous Drug Section, Criminal Division, U.S. Department of <br>Justice, Robert Lipman and Grace Chung Becker, Trial Attorneys, <br>Narcotic and Dangerous Drug Section, Criminal Division, U.S. <br>Department of Justice, were on brief for appellee. <br> <br> <br>                       ____________________ <br> <br>January 22, 1999                   <br>                      ____________________

         TORRUELLA, Chief Judge.  Defendant-appellants were charged with <br>conspiracy to possess with intent to distribute and distribution <br>of cocaine base, cocaine, heroin, and marijuana, in violation of <br>21 U.S.C.  841 & 846.  In addition, Count 43 of the indictment <br>  charged Nelson Ortiz-Bez ("Ortiz-Bez") with engaging in a <br>monetary transaction in criminally derived property, in violation <br>   of 18 U.S.C.  1957.  Count 46 charged Eulalio and Moiss <br>Candelaria-Silva with possessing cocaine base, cocaine and heroin <br>with intent to distribute, in violation of 21 U.S.C.  841(a)(1).  <br>Count 49 alleged the defendants' joint and several liability for <br>   forfeiture of $6,000,000, including substitute assets, as <br>                 authorized by 21 U.S.C.  853. <br>         The jury returned guilty verdicts as to all of the defendants in <br>this appeal as well as special forfeiture verdicts.  The district <br>    court sentenced the defendants to the following terms of <br>imprisonment:  (1) 480 months for Ortiz-Bez; (2) 540 months for <br>Ral Ortiz-Miranda ("Ortiz-Miranda"); (3) 210 months for Celenia <br>Reyes-Padilla ("Reyes-Padilla"); (4) 168 months for Rosa Morales- <br>   Santiago ("Morales-Santiago"); (5) 660 months for Eulalio <br>Candelaria-Silva; (6) 360 months for Moiss Candelaria-Silva; and <br> (7) 480 months for Jos Rosado-Rosado ("Rosado-Rosado").  The <br>     district court also issued a Final Order of Forfeiture <br>encompassing substitute property of Reyes-Padilla, pursuant to 21 <br>                       U.S.C.  853(p).  <br>         Defendants base their appeal on numerous evidentiary and <br> procedural grounds.  For the following reasons, we AFFIRM the <br>                judgment of the district court. <br>BACKGROUND The government presented the testimony of three co- <br>conspirator witnesses, Marcos Hidalgo-Melndez ("Hidalgo"), <br>Carlos Otero-Coln ("Otero-Coln"), and Noem Garca-Otero <br>("Garca-Otero").  Hidalgo pleaded guilty to Count One of the <br>Superseding Indictment.  Otero-Coln and Garca-Otero received <br>immunity from prosecution in exchange for their cooperation.  In <br>addition, the government presented the testimony of numerous <br>local police officers who executed search warrants or were <br>otherwise involved in the investigation of the defendants and <br>their co-conspirators.  The government also presented documentary <br>and forensic evidence and testimony relating to firearms and <br>drugs seized from the co-conspirators, and other pertinent <br>evidence.                        <br>         The co-conspirator witnesses testified that Israel Santiago-Lugo <br>  ("Santiago-Lugo") operated several drug distribution points <br>("puntos") at various housing projects in the northern region of <br>   Puerto Rico.  With the assistance of his co-conspirators, <br>    Santiago-Lugo distributed vast quantities of controlled <br>substances including:  1) heroin sold under the name "cristal"; <br>(2) cocaine sold under the names "bolso rojo" and "rolito"; (3) <br>                cocaine base; and (4) marijuana.

                 A.  The Virgilio Dvila Punto <br>         Hidalgo testified that he, Ortiz-Bez, and Wilfredo and David <br>     Martnez-Matta began working for Santiago-Lugo's drug <br> distribution ring sometime after Hidalgo moved to the Virgilio <br> Dvila housing project in 1990.  He also testified that Ortiz- <br>Bez and others packaged drugs at two rented apartments in Isla <br>   Verde and transported the drugs to various puntos. Hidalgo <br>  further testified that Reyes-Padilla, Santiago-Lugo's aunt, <br>   distributed drugs from a Virgilio Dvila apartment used by <br>  Santiago-Lugo's grandparents.  From this apartment, Morales- <br>   Santiago supplied Santiago-Lugo's distributors with drugs, <br>including heroin and cocaine, and maintained a ledger to account <br>                  for the drugs and proceeds. <br>         On October 6, 1989, the Police of Puerto Rico ("POPR") executed a <br> search warrant at Virgilio Dvila building 43, apartment 411.  <br>Reyes-Padilla was at the apartment with her parents.  The search <br> yielded twenty-six grams of cocaine and three grams of heroin <br>packaged in over 250 small bags.  Later, on October 17, 1989, the <br> POPR executed a search warrant at the same apartment.  When an <br>  officer first arrived, a young man was selling a controlled <br> substance through an iron grating on the apartment door.  When <br>    the officer identified himself, the man fled inside the <br>   apartment.  A search of the apartment yielded two grams of <br>  heroin, less than a gram of cocaine, and over $2000 in U.S. <br>                           currency. <br>         At trial, POPR officer Angel Nieves-Domnguez testified that, <br>pursuant to a tip, he conducted surveillance of Reyes-Padilla at <br>Virgilio Dvila building 43, apartment 412 during the afternoon <br> of October 1 and the morning of October 2, 1991.  On the first <br> day, he observed Reyes-Padilla and Santiago-Lugo retrieve two <br>large bags from the trunk of Santiago-Lugo's car.  Upon reaching <br>the stairs to building 43, Santiago-Lugo opened one of the brown <br> bags and pulled out several transparent plastic bags that each <br> contained smaller red bags.  As Santiago-Lugo distributed the <br>   plastic bags to the persons assembled, Reyes-Padilla made <br>   notations in a notebook.  Additionally, upon receiving the <br>packages, some recipients hid the packages in nearby garbage cans <br> or bushes.  Reyes-Padilla took the other large brown bag up to <br>                         apartment 412. <br>         After Santiago-Lugo left, the officer observed one individual -- <br>  who had received a package from Santiago-Lugo -- apparently <br>   selling some of the smaller red bags to a young woman near <br>    building 44.  Shortly thereafter, a young man arrived at <br>apartment 412, and Reyes-Padilla sold the man a transparent bag <br>   appearing to contain heroin. The next day, the officer saw <br>Santiago-Lugo arrive and deliver yet another brown bag to Reyes- <br>                           Padilla.  <br>         Later that month, POPR executed a search warrant at apartment <br>412.  At that time, defendants Reyes-Padilla and Morales-Santiago <br>were in the apartment.  The search yielded four "decks" of heroin <br> in a Sucrets box, approximately $100,000 in U.S. currency, and <br>two notebooks appearing to contain records of drug deliveries and <br>                             debts. <br>         In November, POPR officers observed Rosado-Rosado and a minor <br>each engage in an apparent sale of controlled substances and give <br> the proceeds from the sale to a heavy-set individual.  Rosado- <br> Rosado retrieved the drugs from a brown paper bag in his back <br>pants pocket.  When officers entered the housing project, Rosado- <br>Rosado and the minor attempted to flee.  Officers caught Rosado- <br>  Rosado and seized eighteen aluminum foil packets containing <br>            heroin and five bags containing cocaine. <br>         Hidalgo testified at trial about the importance of the Virgilio <br>  Dvila punto as a drug distribution site.  He stated that he <br>personally received packages of cocaine and heroin from Morales- <br> Santiago to distribute on behalf of Israel Santiago-Lugo, and <br>that he observed distributors from Santiago-Lugo's other puntos <br>  arrive at Virgilio Dvila and receive packages from Morales- <br>Santiago.  He identified four pages of notebook entries under the <br>  name "Batman"  from the notebook seized in October 1991 that <br>   pertained to his distribution of marijuana and cocaine at <br>                       Virgilio Dvila.   <br>         Among the entries in the notebook was one pertaining to fifty <br>packets of heroin, referred to as "C" to correspond to "cristal," <br> and one pertaining to fifty packets of cocaine, referred to as <br> "R" because of the brand name "bolso rojo."  Expert testimony <br>showed that the entries recorded transactions transpiring almost <br>   daily between October 29, 1990 and October 24, 1991.  The <br>notebooks contained a "price structure" table which specified the <br> prices of multiple units with a base price of $75 per unit.  A <br>conservative estimate of the amount of drugs distributed would be <br>close to 50,000 units having a total value of approximately $3.5 <br>                        million dollars. <br>                    B.  The Rosario Brothers <br>         In 1993, Hidalgo learned that Santiago-Lugo and the Rosario <br>brothers had become adversaries.  Santiago-Lugo and the Rosarios <br>previously had agreed to share control of the drug distribution <br>punto at Virgilio Dvila in Bayamn.  According to Hidalgo, the <br> enmity between them stemmed from a drug debt owed to Santiago- <br> Lugo by one of the Rosarios.  Tensions escalated in early 1993 <br>when a Santiago debt collector and a Rosario associate were both <br>                           murdered. <br>         In June 1993, Hidalgo sustained a gunshot wound when an unknown <br>assailant or assailants fired a barrage of bullets from a moving <br>vehicle near Virgilio Dvila.  After recuperating, Hidalgo again <br> rejoined the conspiracy.  On December 1, 1993, Hidalgo, Ortiz- <br>Bez, Santiago-Lugo, and co-conspirator Andrs Coln-Miranda were <br>arrested in Bayamn.  Ortiz-Bez, Hidalgo, and Coln-Miranda were <br>   in possession of firearms without proper permits.  Hidalgo <br>testified that they were armed due to the ongoing tensions with <br>                     the Rosario brothers. <br>C.  The Los Murales Punto <br>     Otero-Coln testified that, sometime in 1988 or 1989, Santiago- <br>Lugo's brother Ral and Jorge Martnez-Rosado ("Fobi") reached an <br>agreement with Jos Romn Freites ("Josean") for the distribution <br>of cristal heroin at Los Murales.  Otero-Coln, who had served as <br>a lookout for Josean for approximately two months, became a <br>runner who picked up drugs from Virgilio Dvila.  He testified <br>that he began picking up fifty packages, each containing ten <br>packets of heroin and costing $70.  Eventually, he would pick up <br>as many as 100 packages every three of four days, each costing <br>$75. <br>     Otero-Coln further testified that, after the POPR searched <br>Reyes-Padilla's Virgilio Dvila apartment, the distribution <br>operation was moved to the apartment of Morales-Santiago, who <br>also kept notebooks reflecting drug deliveries and debts.  He <br>stated that Ortiz-Bez and others who worked at the "table" in <br>Isla Verde were right-hand men for Santiago-Lugo.  These men <br>would sometimes transport drugs to Los Murales when Otero-Coln <br>could not.  When Reyes-Padilla was out of heroin, Santiago would <br>direct Otero-Coln to obtain it from another distribution group <br>and keep the profits. <br>     Hidalgo testified that he supervised cocaine and marijuana <br>distribution at the Los Murales housing project in 1991 and 1992, <br>and that during his tenure, all of the drugs distributed there <br>belonged to Santiago-Lugo.  He knew Otero-Coln as an individual <br>who would come to the Virgilio Dvila punto to obtain heroin for <br>Santiago-Lugo's punto at Los Murales. <br>D.  The Villa Evangelina Punto <br>     Otero-Coln identified defendant-appellant Eulalio Candelaria- <br>Silva as "Macho Gatillo," the overseer of the drug point at the <br>Villa Evangelina housing project.  Otero-Coln testified that he <br>met the Candelaria-Silvas, including Moiss and Luis, after <br>Josean agreed with Santiago-Lugo to distribute cocaine at Los <br>Murales in exchange for a reduction in the price of heroin <br>distributed there.  Otero-Coln stated that he would obtain <br>cocaine from Ral Santiago-Lugo at Virgilio Dvila and transport <br>the drugs to Eulalio and Moiss' house in Manat for processing <br>to sell at Los Murales and Villa Evangelina.  Eulalio Candelaria- <br>Silva would pick up the proceeds from Otero-Coln.  Moiss <br>assumed Eulalio's role after the latter was incarcerated. <br>     Otero-Coln testified that the Candelaria-Silvas began to <br>distribute "cristal" at Villa Evangelina.  On two occasions in <br>1990, an undercover police officer made controlled purchases of <br>cocaine from Eulalio Candelaria-Silva at Villa Evangelina.  In <br>addition, POPR officers executed search warrants at the <br>Candelaria home in 1993 and February 1995.  The 1993 search <br>yielded controlled substances including "cristal" heroin. <br>     In addition, the government introduced into evidence a letter <br>that had been seized from the residence of Israel Santiago-Lugo <br>in August 1993.  The letter was addressed from "Ral" to "Macho," <br>and indicated that both of them were in jail at the same time.  <br>The letter appeared to discuss price negotiations, and refer to <br>members of the Candelaria family. <br>E.  The Enrique Catoni Punto <br>     Noem Garca-Otero testified that defendant-appellant Rosado- <br>Rosado was introduced to her as "Hormiguita," the supervisor of <br>heroin, cocaine, and marijuana sales at Enrique Catoni.  Ral <br>Santiago-Lugo introduced Ortiz-Bez as "Mickey Mouse."  On one <br>occasion, Raul Santiago-Lugo drove Ortiz-Bez to the Ramn-Sol <br>housing project in Arecibo and left him there to supervise.  On <br>another occasion, Ortiz-Bez and Rosado-Rosado recruited <br>individuals to distribute drugs at the housing project.  In <br>addition, Garca-Otero identified defendant-appellant Ral Ortiz- <br>Miranda as someone who would bring drugs to, and pick up money <br>from, the housing project on at least a weekly basis.  She <br>testified that she knew Ortiz-Miranda as "Cano Beeper." <br>DISCUSSION <br>I.  Jury Selection <br>          Defendant-appellants argue that the district court violated the <br>Fifth and Sixth Amendments, the Jury Selection and Service Act of <br>1968 ("the Act"), 28 U.S.C.  1861, Fed. R. Crim. P. 43(b), and <br>the Amended Plan for the Random Selection of Grand and Petit <br>Jurors for the United States District Court for Puerto Rico <br>("District Plan") by ex parte eliminating jurors from the venire. <br>     A.  The Jury Selection Act <br>     The Act was enacted to ensure that potential jurors are selected <br>at random from a representative cross-section of the community <br>and that all qualified citizens have an opportunity to be <br>considered for service.  See H.R. Rep. No. 1076 (1968), 1968 U.S. <br>C.C.A.N. 1792.  The Act provides that each district court devise <br>a "local plan" for the selection of jurors consistent with the <br>objectives of randomness and nondiscrimination set forth in  <br>1861 and 1862.  See  1863.  The local plan for the District of <br>Puerto Rico was devised and approved pursuant to  1863. <br>          The Act sets forth five specific reasons a summoned juror may be <br>excused by the district court.  They are:  (1) undue hardship; <br>(2) inability to render impartial service; (3) peremptory <br>challenge; (4) good cause shown; and (5) a determination by the <br>court that his service as a juror would be likely to threaten the <br>secrecy of the proceedings, or otherwise adversely affect the <br>integrity of the jury deliberations, that the exclusion is <br>warranted, and that the exclusion is not inconsistent with other <br>provisions of the Act.  See 28 U.S.C.  1866(c).  Section 1866(c) <br>provides that the court may only exclude a person under (5) in <br>open court. <br>          1.  Jury Orientation <br>     Of eighty prospective jurors in the panel for this case, only <br>sixty-two appeared for jury orientation on the morning of <br>September 13, 1995.  At the orientation, conducted on the record <br>but outside the presence of counsel, the district court gave <br>preliminary instructions regarding jury service and distributed <br>the juror questionnaires.  He told the jurors nothing specific <br>about the case except the docket number.  The judge then <br>instructed the jurors not to discuss the case with anyone, spoke <br>to them about the importance of jury service, and described the <br>questionnaire.  The judge left the courtroom while the jurors <br>viewed the video "Justice by the People" and completed the <br>questionnaires.  Upon their completion of the questionnaires, the <br>judge returned and excused the jurors for the day.  Because only <br>fifty prospective jurors remained after the morning orientation <br>session on September 13, the court summoned thirteen additional <br>randomly selected prospective jurors from two other panels.  <br>These prospective jurors, and one late-arriving member of the <br>original panel, then received substantially the same information <br>and instructions from the judge and completed the questionnaires. <br>         During jury selection the next day, it became clear to Ortiz- <br>Miranda's counsel that some of the juror questionnaires were <br>missing.  Upon raising the matter with the district court, the <br>judge explained to counsel that the clerk had "highlighted" <br>certain questionnaires as "problematic," and he had "dealt with <br>those obvious cases."  9/14/95 Tr. at 126.  Ortiz-Miranda's <br>counsel objected to the district court's actions on the ground <br>that it "involv[ed] and invok[ed] Fifth and Sixth Amendment <br>rights."  Id.  The court overruled counsel's objections, but <br>agreed to provide counsel with the questionnaire forms and <br>invited counsel to further object after reviewing them if counsel <br>found that the court had "exercised the [sic] improper <br>discretion," id., in excusing fourteen prospective jurors brought <br>to his attention by the jury clerk. <br>             a.  Lack of Qualifications Dismissals <br>         In order to be deemed qualified to serve as a juror on a petit <br>jury in the United States District Court for the District of <br>Puerto Rico, an individual must be a citizen of the United <br>States, eighteen years of age or older, have resided for a period <br>of one year within the judicial district, and be "able to read, <br>write, speak, and understand the English language with a degree <br>of proficiency sufficient to fill out satisfactorily the Juror <br>Qualification Form and to render satisfactory jury service in <br>this Court."  District Plan at 3. <br>         The district court dismissed six of the prospective jurors based <br>on a lack of proficiency in English.  Juror 16 stated that she <br>had difficulty reading or understanding English and answered the <br>question asking her to describe her work in general terms in <br>Spanish.  Juror 17 completed almost all of the questionnaire in <br>Spanish.  Juror 18 indicated that she had difficulty with English <br>and also wrote in Spanish that she did not hear well.  Juror 45 <br>completed the forms entirely in Spanish.  Juror 61 indicated that <br>he had trouble with English and did not give more than a one word <br>response in English to any of the questions requiring more than a <br>yes or no answer.  Finally, Juror 93 indicated that he had <br>trouble reading or understanding English, but otherwise completed <br>the questionnaire in English.  After examining these <br>questionnaires, we hold that Judge Fust did not err by <br>dismissing these prospective jurors. <br>         The District Plan also mandates that "[n]o person shall be <br>qualified to serve . . . if he is incapable, by reason of mental <br>or physical infirmity, to render satisfactory jury service."  Id. <br>The district court excused two jurors for medical reasons.  Juror <br>13 answered "No" to the question, "Do you have any physical <br>problem (for example, sight, hearing or other medical condition) <br>that would interfere with your ability to serve?" but a note at <br>the bottom of the form states "Eye ongoing medical [illegible]."  <br>The government contends that this note was made by the district <br>court, but the author's identity is unclear.  The district court <br>did write on the beginning of the form:  "See note [page] 3 <br>claimed ongoing eye impediment."  Juror 89 stated that he had <br>"Fibrilosis Atrial" and that he was currently taking daily <br>medication.  The district court excused him on account of his <br>health and because of his answer to question #9.  Question #9 <br>asked the degree of education the prospective juror had achieved.  <br>Juror 89 had a law degree, but was retired.  Although the <br>district court's actions, with respect to these two jurors, were <br>questionable in that Juror 13 did not state that his medical <br>condition would interfere with his serving as a juror and Juror <br>89 was dismissed in part because he holds a law degree, there was <br>at least some medical reason why both jurors could have been <br>excused.  Accordingly, these excusals were not an abuse of <br>discretion.  See United States v. Contreras, 108 F.3d 1255, 1269 <br>(10th Cir. 1997) (applying abuse of discretion standard to pre <br>voir dire excusals). <br>               b. Undue Hardship Dismissals <br>     Both  1866 and the District Plan permit the district court to <br>excuse prospective jurors prior to voir dire on the ground of <br>"undue hardship."  Here, the district court excused six jurors on <br>that basis. <br>     According to the district court's notes, Juror 3 was excused <br>because he was the only person at his office.  Juror 3 stated <br>that he "was the only representative of the company in Puerto <br>Rico.  I sell generic medicine to Drug [sic] stores and Hospitals <br>[sic] in P.R[.]  My Job [sic] is mostly done by telemarketing for <br>which I can not be away from my work for too long.  I m [sic] <br>training a part time employee to assist me due the [sic] increase <br>in sales."  The district court excused Juror 32 because she was <br>taking care of her mother, who was in the hospital, and her <br>grandmother, who was at home.  Although she was the "only one" <br>who could help them, she stated that she would "be very proud to <br>participate as a juror . . . and to let [her] know what [she] <br>should do."  According to his notes, Judge Fust excused Juror 70 <br>because he was a night shift medical technician at Fajardo <br>Hospital. <br>     Jurors 35, 63, and 72 indicated that they had various business <br>and personal travel plans that would conflict with the trial.  <br>Juror 35 stated that she would be traveling during the trial to a <br>"Consumers Affairs annual meeting" and then "intend[ed] to take <br>my vacations."  Juror 63 was excused by the district court on <br>account of a pre-arranged vacation.  During the trial, she was <br>scheduled to attend a training session and to leave with her <br>family on a previously planned vacation.  Finally, Juror 72 was <br>excused because he had a reservation to go to Nevada and <br>California for a month during the trial. <br>     The district court did not abuse its discretion in dismissing <br>Jurors 3 and 32, but did impermissibly excuse Jurors 70, 35, 63, <br>and 72.  With regard to Jurors 3 and 32, their questionnaires <br>document that acting as Jurors would work an undue hardship.  <br>However, the same cannot be said for the others.   <br>     With regard to Juror 70, we note that under the District Plan, he <br>could have requested to be excused from jury duty.  The District <br>Plan states that jury service by medical laboratory technicians <br>would entail undue hardship or extreme inconvenience, and such an <br>individual "shall be excused from jury service upon individualrequest."  District Plan at 5 (emphasis added).  However, Juror <br>70 did not request to be excused or object to being a juror.  The <br>choice not to serve on the jury at this stage was his and not the <br>court's.  The district court acted improperly in unilaterally <br>excusing him from jury service.  We cannot be sure whether Juror <br>70 desired to serve or was unaware of the District Plan's <br>provision.  Regardless of his desire or knowledge, however, there <br>was no prima facie reason for him to have been dismissed from the <br>pool at this point.    <br>     We begin by noting with respect to Jurors 35, 63, and 72 that the <br>district court incorrectly described their situation to counsel <br>the next morning at jury selection.  The district court stated:  <br>"What else was there? And people with paid vacations, which they <br>so said in a note, Judge, I'm leaving on such and such a date.  <br>How can I detain those people?"  9/14/95 Tr. at 127.  After a <br>very close and careful reading of the questionnaires, we did not <br>find any notes on them stating that any of these jurors had paid <br>vacations.  If such a statement was made by any of the jurors to <br>the district court, it was not recorded by the Judge on the <br>questionnaires in the record.  Jurors 35 "intend[ed]" to take <br>vacations.  For Juror 63, "everything was set."  Finally, Juror <br>72 had a "reservation."  It appears that the district court <br>interpreted those phrases to mean paid non-refundable, non- <br>changeable tickets although those phrases may well not have meant <br>that at all. <br>     Jury duty works a burden on all called to serve.  There are <br>instances in which previously-made travel plans would cause jury <br>service to become an undue hardship.  However, the district court <br>all too willingly accepted the proposed excuses of these jurors <br>without allowing the parties to examine the prospective jurors in <br>voir dire. Exclusions at this stage approach a ministerial <br>function, which is why  1866 authorizes the clerk of the court <br>under the supervision of the district court -- if the District <br>Plan so authorizes -- to excuse such jurors. See  1866(c).  If <br>jurors are excused as a result of a non-ministerial exercise of <br>discretion better left to voir dire itself, as occurred here, the <br>prospects for the defendant obtaining a fair cross-section of the <br>community could be improperly diminished. <br>     In general, we think it unwise for district judges to engage in <br>ex parte voir dire beyond purely ministerial functions.  <br>Ministerial functions permitted by the Plan and Act are usually <br>performed by the clerk, under supervision of the court.  If a <br>judge does no more than what a jury clerk is authorized to do in <br>excusing  jurors, that may raise an issue of allocation of court <br>resources but does not raise an issue of impropriety.  See United <br>States v. Calaway, 524 F.2d 609, 619 (9th Cir. 1975).  When the <br>court, in the absence of counsel, starts questioning jurors and <br>excusing them based on responses which go beyond basic <br>information about qualifications, obvious bias, or hardship, it <br>is all too easy to slip over the line, as happened here.  Whether <br>slipping over the line deprives a defendant of statutory or <br>constitutional rights is another question. <br>          2.  The Remedy <br>     Having established that certain of the exclusions were not <br>justified under the Act, we turn to the question of whether the <br>Act provides appellants with a remedy.  By its terms, the Act <br>only provides a remedy -- the stay of proceedings pending the <br>selection of a petit jury in conformity with the Act -- for <br>substantial failures to comply with its provisions.  See  <br>1867(d); United States v. Calabrese, 942 F.2d 218, 226 (3d Cir. <br>1991).  In order to obtain this remedy, a party challenging the <br>jury selection process under the Act must make his challenge <br>"before the voir dire examination begins, or within seven days <br>after the defendant discovered or could have discovered, by the <br>exercise of diligence, the grounds therefor, whichever is <br>earlier."   1867(a).  The timeliness requirement "is to be <br>strictly construed, and failure to comply precisely with its <br>terms forecloses a challenge under the Act."  United States v. <br>Paradies, 98 F.3d 1266, 1277 (11th Cir. 1996) (citation omitted).  <br>"[O]nce voir dire begins, Jury Selection Act challenges are <br>barred, even where the grounds for the challenge are discovered <br>only later."  Id. at 1278 (emphasis added) (citations omitted).  <br>The Act requires that any motion filed be accompanied by a "sworn <br>statement of facts which, if true, would constitute a substantial <br>failure to comply with provisions of [the Act]."   1867(d).  <br>When that requirement is not satisfied, the challenge to the <br>selection process must fail, because "Congress left no room for <br>ad hoc review of the usefulness of compliance with [the sworn <br>statement] requirement."  Paradies, 98 F.3d at 1278 (citation <br>omitted). <br>     Ortiz-Miranda's counsel objected after the district court gave <br>counsel the list of the remaining prospective jurors and his <br>instructions for making challenges.  She stated the reasons for <br>her objection and the district court took notice.  See 9/14/95 <br>Tr. at 129.  Counsel next asked if the transcript was available.  <br>See id.  The court stated:  "The transcript is not available."  <br>Id.  Counsel next asked for a continuance, which was denied.  Seeid.  But, the district court told counsel that she "can examine <br>the forms" and that there would be "an accounting made by the <br>jury clerk," id. at 129-30, but that it would not be done "now," <br>id. at 130, because there was "[n]o need to do that now."  Id. <br>     With a transcript of the above events, it would seem that there <br>would be no quarrel as to what occurred.  Unfortunately, that is <br>not the case.  In a Memorandum Order dated August 11, 1998, the <br>district court took issue with Ortiz-Miranda's brief, stating: <br>"Contrary to what is stated in the brief on appeal, counsel for <br>all defendants, as well as trial attorneys for the Department of <br>Justice, were given copies of [the original questionnaires of <br>those excused] before jury selection commenced in the case now on <br>appeal."  8/11/98 Memorandum Order at 1 (emphasis added).  He <br>continued: "The preparation of the photocopies and sets of <br>documents were turned over to counsel before jury selection was <br>supervised . . . and I made certain that all attorneys of record <br>received a set of the pertinent documents so that they could <br>meaningfully participate in the jury selection process."  Id. at <br>2.  We note that the parties do not agree with the court's <br>assertion that the materials in the case were turned over to them <br>in the above described fashion.  Both the defendant-appellants <br>and the government, relying on the transcript of the proceeding <br>and the materials in the record,  state that the materials were <br>turned over to the parties after the commencement of voir dire. <br>     Ortiz-Miranda states that the record does not disclose when the <br>questionnaires were actually provided to counsel.  The government <br>contends that the record suggests that "the questionnaires were <br>made available sometime after commencement of voir dire, but on <br>September 14, 1995," Government's Resp. to Ortiz-Miranda's Mot. <br>at 3 (based on a memorandum from the district court to the Clerk <br>of the Court and the Jury Administrator dated that day) or the <br>questionnaires were "filed under seal in the Clerk's Office on <br>September 19, 1995, the day after the presentation of evidence <br>began."  Id. (based on Doc. 655 which was signed by Judge Fust <br>on September 19, 1995). <br>     Under the Act, the challenge along with the signed affidavit must <br>be filed before the commencement of voir dire.  Obviously, this <br>was not possible here because the record establishes that jury <br>selection commenced before counsel had any opportunity to <br>discover that prospective jurors had been excused.  In any event, <br>we choose not to wrestle with the thorny question of whether the <br>district court's actions mitigated counsel's duty to comply with <br>the Act. Even if all had proceeded ideally, the district court's <br>erroneous exclusions did not constitute a "substantial failure" <br>to comply with the Act.  See  1867(d). <br>     Congress left the content of this term largely up to the courts.  <br>See 1968 U.S. C.C.A.N. at 1794 ("Your committee would leave the <br>definition of 'substantial' to the process of judicial <br>decision.").  In determining whether a violation is substantial, <br>"the alleged violations must be weighed against the underlying <br>principles of the Act."  United States v. Gregory, 730 F.2d 692, <br>699 (11th Cir. 1984).  These principles are:  (1) the random <br>selection of jurors; and (2) the determination of <br>disqualifications, excuses, exemptions, and exclusions on the <br>basis of objective criteria only.  See id.  The inquiry is as <br>follows: <br> <br>          For wrongful exclusions, determining whether there has been a <br>          substantial violation has both quantitative and qualitative <br>          aspects.  Quantitatively, a substantial violation generally will <br>          not be found if the numbers of errors is small.  Qualitatively, <br>          the inquiry is whether there has been a frustration of the Act's <br>          underlying principle of exclusions on the basis of objective <br>          criteria only. <br> <br>Calabrese, 942 F.2d at 227-28 (citation omitted).  Here, the <br>number of arguably wrongfully excluded jurors was very small.  <br>Further, the Act's principle of exclusions on the basis of <br>objective criteria was not frustrated.  In excusing the four <br>individuals, the district court did not engage in qualitatively <br>improper actions such as creating a "new category of exclusions," <br>see id. at 228, or discriminating against a  class of persons.  <br>See id.  Second, the district court did not prevent the jury <br>panel from consisting of a fair cross-section of the community.  <br>See United States v. Bearden, 659 F.2d 590, 602 (5th Cir. 1981).  <br>His actions, though improper, did not constitute a substantial <br>failure to comply with the Act. <br>     B.  Other Claims <br>     Defendant-appellants also argue that their rights under the Fifth <br>Amendment, the Sixth Amendment, and Fed. R. Crim. P. 43 were <br>violated by the district court's ex parte actions.  To the extent <br>that the district court improperly dismissed four prospective <br>jurors, we conclude that the errors were harmless to the <br>defendants.  See id. at 1270 n.11 (stating that the error must be <br>sufficiently egregious to constitute a constitutional violation).

II.  The Macho Gatillo Alias <br>     Eulalio Candelaria-Silva argues that the district court abused <br>its discretion by refusing to strike his alias, "Macho Gatillo," <br>from the Superseding Indictment.  He contends that the use of the <br>alias was inflammatory, demeaning and prejudicial. <br>     In denying the motion to strike, the district court stated that <br>"Macho Gatillo" served the purpose of a proper name for <br>identification purposes.  The record reflects that the POPR <br>officer who conducted two undercover drug purchases from <br>Candelaria-Silva in 1990 knew him only as "Macho Gatillo."  In <br>addition, co-conspirator witness Otero-Coln also identified the <br>defendant only by his street name.  Furthermore, another POPR <br>officer corroborated these mutually consistent identifications of <br>the defendant by testifying that the defendant was known as <br>"Macho."  All of this evidence was probative with respect to <br>identifying Eulalio Candelaria-Silva as the author of the letter <br>seized from Israel Santiago-Lugo's residence -- a letter signed <br>"Macho" that discussed the operations of a punto. <br>     It is true that the record reflects the existence of at least one <br>other individual who answered to the name "Macho."  For this <br>reason, the POPR undercover officer and Otero-Coln's use of the <br>"Gatillo" portion of the name, which translates as "trigger," was <br>probative to distinguish the defendant. <br>     Eulalio Candelaria-Silva's argument fails because the evidence of <br>his alias was relevant, and there was no prejudice.  See United <br>States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996) (noting that <br>the use of the name "Monster" was necessary to fully identify the <br>defendant); United States v. Persico, 621 F. Supp. 842, 860-61 <br>(S.D.N.Y. 1985) (stating that aliases and nicknames are proper in <br>an indictment where they will be part of the government's proof <br>at trial). <br>III.  Co-Conspirator Testimony <br>     Moiss Candelaria-Silva argues that the district court should <br>have excluded the letter seized from the residence of Israel <br>Santiago-Lugo.  The court admitted this exhibit pursuant to Fed. <br>R. Evid. 801(d)(2)(E) which defines as non-hearsay a statement by <br>a party's co-conspirator made during and in furtherance of the <br>conspiracy.  We find Moiss Candelaria-Silva's argument without <br>merit. <br>     The district court conditionally admitted certain evidence <br>pursuant to Fed. R. Evid. 801(d)(2)(E) after making the requisite <br>findings pursuant to United States v. Ciampaglia, 628 F.2d 632, <br>638 (1st Cir. 1980).  Later, the court expressly found that the <br>letter met the "in furtherance of" requirement of 801(d)(2)(E).  <br>At the end of trial, the court made the requisite determination <br>for unconditional admission of the letter and other evidence. <br>     As grounds for exclusion at trial, Moiss Candelaria-Silva argued <br>that there existed a legitimate doubt as to whether Macho Gatillo <br>was a member of this charged conspiracy at the time he wrote the <br>letter.  He renews this argument on appeal.  <br>     Letters can fall within the co-conspirator exception to the <br>hearsay rule.  See United States v. Richardson, 14 F.3d 666, 668- <br>70 (1st Cir. 1994).  In this case, there is more than sufficient <br>evidence that the statements in the letter were made by a co- <br>conspirator during and in furtherance of the charged conspiracy.  <br>First, the seizure of the letter from Israel Santiago-Lugo's <br>residence and references in the letter to the recipient's brother <br>incline toward a finding that the addressee was Israel Santiago- <br>Lugo's brother, Ral.  Furthermore, the writer, "Macho Gatillo" - <br>- Eulalio Candelaria-Silva -- refers to the involvement of his <br>mother in the transactions discussed.  The 1993 seizure of <br>cristal heroin at the Candelaria-Silva residences occurred in the <br>presence of Eulalio Candelaria-Silva's mother and Moiss <br>Candelaria-Silva.  In addition, the testimony of Otero-Coln <br>about the Candelaria-Silvas' roles at Villa Evangelina, and the <br>content of the letter, particularly its reference to the specific <br>brand of heroin constitute strong evidence that the letter was <br>prepared by a co-conspirator during and in furtherance of the <br>charged conspiracy.  As this Court stated in United States v. <br>Drougas: <br>          The source of the placemats [on which a series of handwritten <br>          names and numbers appear], the circumstances surrounding their <br>          seizure, the fact that the information corresponded to other <br>          evidence of the participants in the conspiracy, and the extreme <br>          unlikelihood that such a list would be prepared by one not privy <br>          to the operation of the conspiracy provide a sufficient basis to <br>          infer that the writings pertained to the conspiracy alleged and <br>          were made in furtherance of that conspiracy. <br> <br>748 F.2d 8, 26 (1st Cir. 1984). <br>     Here, as in Drougas, the extreme unlikelihood that such a letter <br>would be prepared by one not privy to the operation of the <br>"cristal" heroin conspiracy provides a sufficient basis to infer <br>that the letter pertained to the conspiracy alleged and that the <br>statements therein were made in furtherance of that conspiracy.  <br>See Drougas, 748 F.2d at 26.  In light of the overall evidence in <br>the case, the references to the specific brand of heroin and the <br>statements about price and quantity, the district court did not <br>clearly err by admitting the evidence. <br>IV.  Motion in Limine <br>     A.  Evidence of Prior Dispositions <br>     Ortiz-Bez, Reyes-Padilla, and Moiss Candelaria-Silva contend <br>that the district court erred in prohibiting them from presenting <br>evidence about the prior dispositions of certain local criminal <br>charges relating to conduct involved in the charged conspiracy.  <br>Specifically, the defendants argue that the court's decision <br>prohibited them from presenting a defense.  We agree with the <br>district court that the prior dispositions were not admissible. <br>     In deciding this issue, the district court explained that the <br>local prosecutions were not relevant to this prosecution because <br>possible explanations for the early dismissals included "lack of <br>evidence, unavailability of witnesses, sloppy presentation by the <br>state prosecutors, irresponsible legal determinations, and the <br>sort."  9/14/95 Order at 3.  Furthermore, the district court <br>rejected the defendants' arguments as "a disguised attempt to <br>argue a double jeopardy defense before the jury."  Id. at 4.  The <br>district court's order was proper and in accordance with this <br>Court's recent decision in United States v. Smith, 145 F.3d 458, <br>461 (1st Cir. 1998), holding that an acquittal instruction is not <br>required when evidence of acquitted conduct is introduced. <br>     In Smith, a defendant, indicted for a drug offense and a tax <br>offense, was acquitted of the drug offense after a trial on that <br>charge alone.  During the subsequent trial on the tax offense, <br>the government presented evidence of drug trafficking to <br>demonstrate receipt of income that was not reported to the IRS.  <br>On appeal, the defendant argued that the trial court erred in <br>refusing to inform the jury of his acquittal on the drug charge <br>and in barring his cross-examination of prosecution witnesses on <br>their knowledge of that acquittal.  The defendant in Smith, like <br>the defendants in this case, relied on language in the Supreme <br>Court's decision in Dowling v. United States, 493 U.S. 342 <br>(1990), to support this position.  In Dowling, the trial court <br>instructed the jury that the defendant had been acquitted of <br>robbing a witness and the witness's testimony was admitted for a <br>limited purpose.  As we noted when rejecting the defendant's <br>argument in Smith, however, "the sentence in Dowling that begins, <br>'Especially in light of the limiting instructions' does not <br>identify the language to which 'limiting instruction' refers."  <br>Smith, 145 F.3d at 461.  Furthermore, since an instruction was <br>given in Dowling, the Supreme Court did not decide the exclusion <br>issue.  See Smith 145 F.3d at 461. <br>     The reasons supporting exclusion of evidence about the dismissal <br>of a prior prosecution are even stronger than those that support <br>exclusion with respect to a prior acquittal.  As the district <br>court noted, cases are dismissed for many reasons unrelated to <br>the defendant's guilt.  The introduction of evidence of a <br>dismissal could well mislead the jury into thinking that a <br>defendant was innocent of the dismissed charge when no such <br>determination has been made. <br>     B.  Certificate of Good Conduct <br>     Moiss Candelaria-Silva argues that, under Fed. R. Evid. 405, the <br>trial court should have admitted a "certificate of good conduct."  <br>See Defendant's Br. at 23-30.  The district court, describing the <br>certificate as a "negative criminal record" certified by the <br>Puerto Rico Police, excluded the document. We hold that the <br>certificate of good conduct is not admissible character evidence. <br>     In United States v. DeJongh, 937 F.2d 1 (1st Cir. 1991), the <br>district court declined to admit what this Court described as a <br>"Good Conduct Certificate."  This Court upheld exclusion on the <br>ground of insufficient authentication. <br>     Furthermore, the certificate of good conduct does not satisfy <br>Fed. R. Evid. 405, which allows proof of character:  (1) by <br>"specific instances of conduct," id., on cross-examination or <br>where "character or a trait of character . . . is an essential <br>element of a charge, claim, or defense," id.; or (2) by <br>"testimony as to reputation or . . . in the form of an opinion."  <br>Id. Here, Candelaria-Silva cannot allege that the proffered <br>certificate of good conduct meets either of these requirements. <br>V.  Judicial Bias <br>     Defendant Moiss Candelaria-Silva contends that the trial court <br>exhibited judicial bias when it: (1) ruled on numerous <br>evidentiary issues during trial; and (2) chastised counsel in <br>front of the jury.  See Defendant's Br. at 35-40.  On review, <br>this Court considers "isolated incidents in light of the entire <br>transcript so as to guard against magnification on appeal of <br>instances which were of little importance in their setting."  <br>United States v. Montas, 41 F.3d 775, 779 (1st Cir. 1994) <br>(internal quotation marks and citations omitted).  Furthermore, <br>this Court must "differentiate between expressions of impatience, <br>annoyance or ire, on the one hand, and bias or partiality, on the <br>other hand."  Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997).  <br>On several occasions, this Court has held that a trial judge's <br>frustration displayed at sidebar does not deprive a defendant of <br>a fair trial.  See, e.g., United States v. Polito, 856 F.2d 414, <br>417-19 (1st Cir. 1988) (no bias where, at sidebar, judge warns <br>defense counsel that he is being reported to the State Bar <br>Association for violating rules of professional conduct); Dearyv. City of Gloucester, 9 F.3d 191, 194-96 (1st Cir. 1993) (no <br>bias where, at sidebar, the trial judge told defense counsel his <br>cross-examination of a witness was "very devious").  Here, Moiss <br>Candelaria-Silva has failed: (1) to demonstrate that the trial <br>court's actions rise to the level of bias; and (2) to meet his <br>burden of demonstrating serious prejudice. <br>      Moiss Candelaria-Silva complains that a number of evidentiary <br>rulings show bias.  We have examined those rulings and find they <br>were all proper in the exercise of the court's discretion. <br>Accordingly, Moiss Candelaria-Silva does not demonstrate <br>judicial bias with his complaints concerning: (1) the use of the <br>charts prepared by the government; (2) the display of photographs <br>of firearms, ammunition and drugs to the jury; (3) the admission <br>of testimony of an expert witness to explain the drug ledgers; <br>(4) the exclusion of evidence of prior acquittals; (5) the <br>exclusion of defense impeachment evidence concerning past <br>instances of untruthfulness; (6) the exclusion of a utility bill <br>to establish Moiss Candelaria-Silva's place of residence as <br>different from his mother's house; (7) the district court's <br>application of Fed. R. Evid. 801(d)(2)(E); (8) its admission of <br>evidence of allegedly unrelated murders and misconduct by <br>defendants; or (9) its alleged approval of the government's use <br>of leading questions. <br>     Similarly, Moiss Candelaria-Silva's complaint about the trial <br>court's "facial expressions,"  Defendant's Br. at 37, falls short <br>of the mark.  The transcript indicates that after an extensive <br>discussion among all defense counsel, at least two defense <br>counsel indicated that the district judge did not cover his mouth <br>or make faces when weapons were introduced into evidence.  See10/27/95 Tr. at 1861.  Perhaps one defense counsel accurately <br>summed up the situation when he remarked:  "I would also say for <br>the record, I have been able to perceive a very high tension <br>among all counsel.  And that every small incident, in my opinion, <br>is blown out of proportion."  Id. at 1883-84. <br>     Assuming arguendo that the trial court exhibited frustration from <br>time to time during this rather lengthy, heated trial, the strong <br>instructions given by the trial court during and at the end of <br>the trial should have eliminated any conceivable prejudice.  For <br>example, shortly after the bench conference regarding facial <br>expressions, the district court instructed the jury:   <br>          Remember also what I told you at the beginning, when we started <br>          the first day when I impaneled you.  Nothing that the court may <br>          say or do during the course of this trial is intended to indicate <br>          nor should be taken by you as indicating what your verdict should <br>          be.  Also, as you have perceived, throughout this trial, trial <br>          practice is very demanding of judges and attorneys and sometimes <br>          there exists at a given trial colloquy between the court and <br>          counsel.  This colloquy sometimes is easy going and sometimes I, <br>          as a judge, have to take a stand to keep proceedings returning in <br>          an orderly way.  It is very important for all of you to <br>          understand that any colloquy between court and counsel is not to <br>          be considered by you in determining the issues of this case. <br> <br>Id.  at 1995.  Such jury instructions are an appropriate means to <br>"allay[] potential prejudice."  Logue, 103 F.3d at 1046-47 <br>(citation omitted). <br>     Thus, Moiss Candelaria-Silva has failed to meet his burden of <br>showing serious prejudice.

VI.  Rule 16 <br>     Ortiz-Miranda argues that the district court should have <br>suppressed Garca-Otero's identification testimony as the fruit <br>of a Rule 16 discovery violation.  Although Ortiz-Miranda argued <br>for suppression of the identification on the merits in the <br>district court, see 11/16/95 Tr. at 3449-52, 3479-82, he never <br>sought suppression as a discovery sanction.  Therefore, this <br>argument is waived.  See United States v. Barnett, 989 F.2d 546, <br>554 (1st Cir. 1993) ("Issues not squarely raised in the district <br>court will not be entertained on appeal."). <br>VII.  Jury Instructions <br>     Ortiz-Miranda argues that the evidence at trial mandated an <br>instruction explaining the particular concerns attendant to <br>eyewitness identification and explicitly stating that a guilty <br>verdict required a finding of identity beyond a reasonable doubt.  <br>See Defendant's Br. at 46. However, we have expressly "declined <br>to adopt . . . a rule of per se reversal [for such an error], <br>choosing not to constrain district courts with yet another <br>mandatory requirement."  United States v. Angiulo, 897 F.2d 1169, <br>1206 n.20 (1st Cir.) (citing United States v. Kavanaugh, 572 F.2d <br>9, 13 (1st Cir. 1978)), cert. denied, 498 U.S. 845 (1990).  <br>     Contrary to Ortiz Miranda's assertion, he was not entitled to a <br>particular instruction on the facts of this case.  As this Court <br>further stated in Angiulo: <br>          [T]he refusal to give a particular requested instruction, <br>          however, is reversible error only if the instruction (1) is <br>          substantively correct;  (2) was not substantially covered in the <br>          charge actually delivered to the jury; and (3) concerns an <br>          important point in the trial so that the failure to give it <br>          seriously impaired the defendant's ability to effectively present <br>          a given defense. <br> <br>897 F.2d at 1205 (internal quotation marks and citations <br>omitted). <br>     Here, Ortiz-Miranda has not satisfied the second and third prongs <br>of the Angiulo test. First, the district court's charge <br>substantially covered the identification issue: <br>          Let's now discuss the subject of how is it that you gauge or <br>          assess the credibility of witnesses . . . . In making that <br>          decision, you may take into account a number of factors, <br>          including the following: <br> <br>          One, was the witness able to see or hear or know the things about <br>          which that witness testified?  <br> <br>          Two, what kind of opportunity did the witness have to observe <br>          facts or identify people, including the accused? <br> <br>          Three, how well was the witness able to recall and describe those <br>          things or persons observed? <br> <br>          Four, how positive was the witness' recollection of facts and the <br>          identification of people, including those accused? <br> <br>          Five, what was the witness' manner while testifying?  By <br>          "manner," I mean appearance, demeanor. <br> <br>          Six, . . . was the witness ever confused as to facts or the <br>          identification of persons, or did he or she misidentify or fail <br>          to identify a person or the accused on prior occasions? <br> <br>12/1/95 Tr. at 4554-55 (emphasis added). <br>     Second, Garca-Otero testified twice at trial, and thus Ortiz- <br>Miranda had ample opportunity to develop the identification <br>defense during cross-examination, the presentation of defense <br>evidence, and closing argument.  Since the court's jury <br>instructions addressed the identification issue three times, <br>Ortiz-Miranda's "ability to effectively present" the <br>identification defense was not "seriously impaired."  Angiulo  <br>897 F.2d at 1205-06. <br>VIII.  Failure to Disclose and Newly-Discovered Evidence  <br>     Ortiz-Miranda argues that the government's failure to disclose <br>during trial its knowledge of Rivera-Melndez's whereabouts, his <br>possession of a green motorcycle, his involvement in certain <br>criminal activity, and his association with the alias "Cano <br>Beeper" in POPR records, constituted a due process violation <br>warranting reversal pursuant to Brady v. Maryland, 373 U.S. 83 <br>(1972), and Kyles v. Whitley, 514 U.S. 419 (1995).  Ortiz-Miranda <br>also argues that newly discovered evidence from a witness who <br>began cooperating after conclusion of the trial independently and <br>cumulatively mandates a new trial.  Ortiz-Miranda's claims fail <br>because, as the district court correctly concluded, there is no <br>"reasonable probability" that disclosure of the Brady material <br>during trial would have resulted in Ortiz-Miranda's acquittal.  <br>See  Gilday v. Callahan, 59 F.3d 257, 267 (1st Cir. 1995), cert. <br>denied, 516 U.S. 1175 (1996).  Nor, as the district court <br>concluded, does the combination of the Brady material and newly- <br>discovered evidence create such a "reasonable probability." <br>     Ortiz-Miranda's motion for a new trial does not specifically cite <br>the failure to disclose Rivera-Melndez's location as grounds for <br>relief.  Rather, his counsel placed this information in an <br>"Affirmation" appended to the motion. Thus, although the district <br>court heard evidence on this issue at the hearing, it did not <br>specifically consider it in the Brady analysis.  The draft search <br>warrant affidavit did not contain information about the sighting <br>of Rivera-Melndez because that event did not occur until after <br>the prosecutor had declined to authorize Rivera-Melndez's <br>arrest.  In its analysis of the draft affidavit, however, the <br>district court assumed the availability of Rivera-Melndez and <br>determined that such availability would not have created a <br>reasonable probability of Ortiz-Miranda's acquittal.  First, the <br>court found it improbable that Rivera-Melndez would exculpate <br>Ortiz-Miranda by implicating himself.  See United States v. <br>Ortiz-Miranda, 931 F. Supp. 85, 93 (D.P.R. 1996).  Furthermore, <br>the court found it improbable that Garca-Otero would recant her <br>identification of Ortiz-Miranda or her failure to identify <br>Rivera-Melndez even if the defense produced Rivera-Melndez.  <br>See id. <br>     Ortiz-Miranda does not elaborate on how Rivera-Melndez's "very <br>presence in court," Defendant's Br. at 35-36, would otherwise <br>have created a reasonable probability of acquittal.  Such a claim <br>is especially questionable because the jury already had the <br>benefit of comparing photographs of the two men when assessing <br>the accuracy of Garca-Otero's identification of Ortiz-Miranda.  <br>The government, while conceding the possibility that Rivera- <br>Melndez could also be involved with Israel Santiago-Lugo's <br>organization, reasonably argued in closing arguments that the <br>testimony of Garca-Otero and other evidence nonetheless <br>established the guilt of Ortiz-Miranda. <br>     With respect to the draft probable cause affidavit itself, the <br>district court determined that it "favor[ed]" the <br>misidentification claim insofar as it did not contradict the <br>Department of Transportation information about the green <br>motorcycle and suggested Rivera-Melndez's involvement in drug <br>trafficking.  It did not, however, exculpate Ortiz-Miranda.  SeeOrtiz-Miranda, 931 F. Supp. at 92-93.  Similarly, the district <br>court correctly recognized that although the missing page of the <br>criminal history report would have "favored" the defense by <br>attributing the alias "Cano Beeper" solely to Rivera-Melndez, <br>the government perhaps could have established that the POPR <br>database was incomplete. See id. at 93. <br>     As the district court recognized, it is the "reasonable <br>probability" standard that distinguishes merely "favorable" <br>evidence from "material" evidence, the intentional or <br>unintentional withholding of which violates a defendant's due <br>process rights.  See Gilday, 59 F.3d at 267.  On this record, we <br>agree with the district court that "the sum of evidence withheld <br>is hardly of the variety that would undermine our confidence in <br>the outcome of the trial."  Ortiz-Miranda, 931 F. Supp. at 94. <br>     Finally, Ortiz-Miranda summarily asserts "prosecutorial <br>misconduct" as grounds for reversal.  In view of the fact that he <br>neither develops this argument nor cites any supporting <br>authority, we reject this argument out of hand.  See United <br>States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[A] litigant <br>has an obligation to spell out its arguments squarely or <br>distinctly, or else forever hold its peace."). <br>IX.  Sufficiency of the Evidence <br>     First, with respect to Count 46, conspiracy to possess cocaine <br>and other controlled substances with the intent to distribute, <br>Moiss Candelaria-Silva argues that the evidence was insufficient <br>because the POPR investigation that led to the seizure did not <br>link him to the Sabana Seca residence where the seizure occurred.  <br>This claim fails because to obtain a conviction, the <br>investigative officers need not identify all the perpetrators <br>prior to arrest.  Here, the testimony of Otero-Coln about the <br>Candelaria-Silva family's use of the Sabana Seca residences to <br>process cocaine and other drugs for distribution well supported <br>the jury's verdict as to his involvement in the conduct charged <br>in Count 46. <br>     Second, Rosado-Rosado and Moiss Candelaria-Silva argue that the <br>evidence established the existence of separate conspiracies.  We <br>find their argument to be without merit. <br>     The evidence presented at trial established that there was an <br>overarching conspiracy headed by Israel Santiago-Lugo to <br>distribute controlled substances, including heroin, cocaine, and <br>marijuana.  The drugs were distributed at various places and by <br>various people, including members of the Candelaria family.  As <br>noted in United States v. Wihbey, "[t]he question whether a given <br>body of evidence is indicative of a single conspiracy, multiple <br>conspiracies, or no conspiracy at all is ordinarily a matter of <br>fact; a jury's determination in that regard is subject to review <br>only for evidentiary sufficiency."  75 F.3d 761, 774 (1st Cir. <br>1996) (citing United States v. David, 940 F.2d 722, 732 (1st <br>Cir.), cert. denied, 502 U.S. 989 (1991)). <br>     Here the trial court expressly charged the jury on the multiple <br>conspiracy defense: <br>          You must decide whether the conspiracy charged in the indictment <br>          existed and, if it did, who at least some of its members were.  <br>          If you find that the conspiracy charged did not exist, then you <br>          must return a not guilty verdict, even though you may find that <br>          some other conspiracy existed.  Similarly, if you find that any <br>          defendant was not a member of the charged conspiracy, then you <br>          must find that defendant not guilty, even though that defendant <br>          may have been a member of some other conspiracy. <br> <br>12/1/95 Tr. at 4569-70.  Thus, the jury verdict can be viewed as <br>a rejection of the multiple conspiracy claim.  Wihbey, 75 F.3d at <br>775 n.8 (stating that when the district court gives a multiple <br>conspiracy instruction, a guilty verdict "can be seen as an <br>effective rejection of the multiple conspiracy theory").  <br>     As noted in United States v. Twitty, 72 F.3d 228 (1st Cir. 1995), <br>the arguments made by the defendant-appellants are not uncommon: <br>          Twitty's argument is a common one in conspiracy appeals.  <br>          Whenever a conspiracy involves successive transactions and <br>          multiple players, it is usually possible to slice the enterprise <br>          into discrete portions.  Even a single conspiracy is likely to <br>          involve subsidiary agreements relating to different individuals <br>          and transactions.  And more often than not, none of the <br>          agreements is explicit;  agreement is inferred from conduct;  and <br>          the conceptual tests used to distinguish between one conspiracy <br>          and many are not sharp edged.  See, e.g., United States v. <br>          Drougas, 748 F.2d 8, 17 (1st Cir.1984). <br> <br>Id. at 231 (emphasis supplied). <br>     In Wihbey, this Court, quoting United States v. Glenn, 828 F.2d <br>855, 858 (1st Cir. 1987), set forth the framework for analyzing a <br>claim that the evidence was insufficient to allow the jury to <br>find a single conspiracy and that, instead, the evidence showed <br>two separate conspiracies: <br> <br>          (1) Is the evidence sufficient to permit a jury to find the <br>          (express or tacit) agreement that the indictment charges?  (2) If <br>          not, is it sufficient to permit a jury, under a proper set of <br>          instructions, to convict the defendant of a related, similar <br>          conspiracy?  (3) If so [i.e., the answer to (2) is yes], does the <br>          variance affect the defendant's substantial rights or does the <br>          difference between the charged conspiracy and the conspiracy <br>          proved amount to "harmless error?" <br> <br>75 F.3d at 773.  "Put differently, so long as the statutory <br>violation remains the same, the jury can convict even if the <br>facts are somewhat different than charged -- so long as the <br>difference does not cause unfair prejudice."  Id. (internal <br>quotation marks and citation omitted). <br>     Analyzing this case under the first prong of the Glenn test, the <br>evidence is clearly sufficient to permit a jury to find that <br>appellants Rosado-Rosado and Moiss Candelaria-Silva joined the <br>overarching conspiracy charged in Count I.  Assuming arguendo, as <br>in Wihbey, that there was insufficient proof that appellants <br>Rosado-Rosado and Moiss Candelaria-Silva were members of the <br>overarching conspiracy alleged in Count I, still, the second <br>prong of the Glenn test would be answered in the affirmative.  <br>For example, Moiss Candelaria-Silva largely concedes that the <br>evidence was sufficient to convict him of the statutory offense <br>charged in Count I -- engaging in a conspiracy in violation of 21 <br>U.S.C. 846.  Likewise, appellant Rosado-Rosado states:  "It is <br>the contention of . . . appellant that the overt acts for which <br>evidence was presented against him relate -- if at all [--] to <br>separate and distinct drug operation or conspiracy."  Defendant's <br>Br. at 8. Regardless of this assertion, however, both Otero-Coln <br>and Garca-Otero testified as to their involvement in a <br>conspiracy with him. <br>     Since the second prong of the Glenn test is answered in the <br>affirmative, to obtain a reversal, appellants must meet their <br>burden under the third prong of the Glenn test -- that as a <br>result of the variance, they were unfairly prejudiced.  SeeWihbey, 75 F.3d at 773.  In Wihbey, the Court noted that there <br>were at least three ways in which such a variance might prejudice <br>the accused.  First, a defendant may receive inadequate notice of <br>the charge against him and thus is taken by surprise at trial.  <br>Second, a defendant may be twice subject to prosecution for the <br>same offense.  Third, a defendant may be prejudiced by <br>"evidentiary spillover"--the "transference of guilt" to a <br>defendant involved in one conspiracy from evidence incriminating <br>defendants in another conspiracy in which the particular <br>defendant was not involved.  See id. at 774. <br>     Like the appellants in Wihbey, the appellants here have failed to <br>carry their burden of establishing unfair prejudice.  Appellants <br>have clearly failed to establish the applicable test with respect <br>to a claim of prejudicial spillover -- "prejudice so pervasive <br>that a miscarriage of justice looms."  Id. at 776 (internal <br>quotation marks and citation omitted).  Here, the jury clearly <br>assessed the evidence against each defendant separately.  This is <br>demonstrated by the fact that the jury declined to reach any <br>verdict as to defendant Andrades-Marrero.  See 12/13/95 Tr. at <br>5093.  Thus, appellants have not established unfair prejudice. <br>     Accordingly, defendant-appellant's "multiple conspiracy" argument <br>is rejected. <br>X.  Factual Findings at Sentencing <br>     A.  Ortiz-Miranda <br>     In challenging his sentence, Ortiz-Miranda argues that the <br>district court erroneously attributed 1.5 kilograms of cocaine <br>base to him based upon extrapolating from an "average" dosage <br>amount.  Upon review, we conclude that the record supports the <br>district court's determination. <br>     The district court properly considered testimony concerning at <br>least ten total cocaine base deliveries directly involving Ortiz- <br>Miranda at the puntos in Arecibo and Vega Baja.  This estimate <br>was based upon the trial testimony of Garca-Otero and testimony <br>at the hearing on the motion for a new trial.  In addition, <br>Ortiz-Miranda had been arrested at the Arecibo location with <br>approximately 596 capsules of cocaine base in July 1994, and <br>Ortiz-Bez had been arrested near there in 1995 with over 1200 <br>capsules containing a total amount of 196 grams of cocaine base.   <br>     Garca-Otero testified that at least 500 capsules of cocaine base <br>were distributed on a weekly basis in Vega Baja, and that Ortiz- <br>Miranda made approximately six deliveries.  Thus, a conservative <br>estimate of Ortiz-Miranda's direct involvement with 6,000 <br>capsules at the two locations would yield one kilogram of cocaine <br>base and a higher weight of the total mixture containing it, the <br>capsules.  See  USCG  2D1.1(c)*(A) ("weight of a controlled <br>substance . . . refers to the weight of any mixture or substance <br>containing [it]").  In addition, the district court could <br>reasonably infer that the additional deliveries of at least 3,000 <br>capsules, yielding approximately another one-half kilogram of <br>cocaine base to the Arecibo location would have been reasonably <br>foreseeable to Ortiz-Miranda as part of the conspiracy.  Here, <br>even using a conservative estimate, the district court properly <br>attributed 1.5 kilograms of cocaine base to Ortiz-Miranda. <br>     B.  Eulalio Candelaria-Silva <br>     Eulalio Candelaria-Silva argues that, because the firearms seized <br>from the Sabana Seca buildings were "out of reach," not used, and <br>not definitively linked to him, the district court erred in <br>imposing the two-level increase to his guidelines offense level <br>pursuant to USCG  2D1.1(b)(1).  However, at sentencing, <br>Candelaria failed to challenge the link between himself and the <br>firearms.  As a result, we reject his claim.  See Barnett, 989 <br>F.2d at 554 ("raise-or-waive" rule not relaxed where evidence <br>supports sentencing findings). <br>     At sentencing, the district court correctly rejected Candelaria's <br>claim that a relationship between the drugs and the firearms was <br>"clearly improbable."  4/19/96 Tr. at 12.  Specifically, the <br>district court determined that "in the context of the evidence . <br>. . there [was] no doubt . . . that the weapons . . . had a <br>definite, clear connection with drug trafficking."  Id. at 13-14.  <br>The court stated further: <br>          [T]hese were not hunting weapons.  These were not a collection of <br>          weapons.  This was not a weapon had, like many people do, to just <br>          defend their home in the event some burglar comes in . . .These <br>          were loaded AK-47s and Ar-15s, we're talking about assault <br>          rifles. <br> <br>Id.  After reviewing the record, we uphold the district court's <br>determination. <br>     C.  Ortiz-Bez <br>     At sentencing, Ortiz-Bez acknowledged his involvement as a core <br>member of the conspiracy.  Specifically, he acknowledged working <br>at the "table" in Isla Verde and going "out hunting for people to <br>kill them [during the drug war with the Rosarios]."  Defendant's <br>App. at 58.  In fact, his candor so impressed the judge that the <br>judge adjusted his offense level for acceptance of <br>responsibility.  See Ortiz-Bez Sentencing Findings at 2. <br>     Ortiz-Bez now maintains, however, that the sentence imposed was <br>"exaggeratedly harsh," and alleges that the government was <br>retaliatory in seeking a three-level, as opposed to two-level, <br>adjustment, pursuant to USCG  3B1.1(b), for his role in the <br>offense.  Contrary to his assertions, however, the record <br>reflects that, because Ortiz-Bez's relevant conduct clearly <br>involved five or more participants, he is not eligible for the <br>mere two-level adjustment pursuant to USCG  3B1.1(c).  Thus, the <br>district court did not clearly err. <br>     D.  Reyes-Padilla and Morales-Santiago <br> <br>     Reyes-Padilla argues that the district court should have imposed <br>a lower sentence because of her age, medical condition and <br>rehabilitative efforts.  See Defendant's Br. at 10-11.  At <br>sentencing, however, she raised none of these claims, preferring <br>instead to argue that she had withdrawn from the conspiracy after <br>the 1989 execution of search warrants at her Virgilio Dvila <br>apartment.  See Defendant's App. at 66-79.  Notwithstanding this <br>waiver, age and health are not ordinarily relevant sentencing <br>factors, see USCG  5H1.1 & 5H1.4, and Reyes-Padilla makes no <br>argument that age and health in this case constitute a <br>"mitigating circumstance of a kind, or to a degree, not <br>adequately taken into consideration by the Sentencing <br>Commission." USCG  5K2.0.  Furthermore, her rehabilitation claim <br>is belied by the fact that, at sentencing, she refused to <br>acknowledge participation in the conspiracy after 1989.  SeeDefendant's App. at 71.  The record supports the sentence <br>imposed. <br>     Morales-Santiago also argues that the district court erred in <br>determining her relevant conduct, pursuant to USCG  2D1.1, and <br>in denying her an adjustment for acceptance of responsibility, <br>pursuant to USCG  3E1.1.  See Defendant's Br. at 7-8.  Although <br>Morales-Santiago has provided no transcript of the sentencing <br>proceedings, the available record supports the district court's <br>determination.  The record reflects that, during at least part of <br>the conspiracy, Morales-Santiago was charged with storing large <br>quantities of controlled substances, directly providing Israel <br>Santiago's distributors with those controlled substances, <br>collecting proceeds, and maintaining accounting records.  As <br>such, the expansiveness of the distribution conspiracy was <br>reasonably foreseeable to her even though she may not have <br>participated in every transaction.  Furthermore, contrary to <br>Morales-Santiago's assertions, the Presentence Report ("PSR") at <br>30-31 does reflect a "thorough explanation of her participation <br>in the case at hand" when viewed in the context of the trial <br>testimony of Hidalgo and Otero-Coln.  Thus, Morales-Santiago's <br>claim has no merit. <br>XI.  Forfeiture of the Montaez Property <br>     Reyes-Padilla makes six separate objections to the inclusion of <br>the Montaez Property in the Final Order of Forfeiture:  (1) that <br>there was no evidence that the property was traceable to drug <br>proceeds; (2) that she was denied the opportunity to have the <br>forfeiture determined by a jury; (3) that there was no principal <br>asset for which the Montaez property could properly be <br>substituted; (4) that forfeiture of the property constitutes <br>double jeopardy; (5) that the government waived its right to <br>forfeit the property as a substitute asset when it withdrew it <br>from Count 49; and (6) that her joint and several liability for <br>the full amount realized by the conspiracy violates the Excessive <br>Fines Clause of the Eighth Amendment.  None of Reyes-Padilla's <br>arguments is compelling. <br>     A.  Forfeiture of a Substitute Asset <br>     A criminal forfeiture order may take several forms.  First, the <br>government is entitled to an in personam judgment against the <br>defendant for the amount of money the defendant obtained as <br>proceeds of the offense.  Second, to the extent the government <br>can trace any of the proceeds to specific assets, it may seek the <br>forfeiture of those assets directly pursuant to 21 U.S.C.  <br>853(a)(1).  Third, if as a result of some act or omission of the <br>defendant, the government cannot trace the proceeds to specific <br>assets, it may seek the forfeiture of "any property, cash or <br>merchandise, in satisfaction of the amount of criminal forfeiture <br>to which it is entitled."  United States v. Voight, 89 F.3d 1050, <br>1088 (3d Cir. 1996); see 21 U.S.C.  853(p) (authorizing <br>forfeiture of substitute assets). <br>     In Voight, the Third Circuit held that a defendant convicted of <br>laundering $1.6 million was required to forfeit that amount as a <br>money judgment.  See 89 F.3d at 1084.  When the government could <br>not directly trace any forfeitable proceeds to the defendant's <br>current assets, the court held that the government could satisfy <br>the $1.6 million judgment by seeking forfeiture of the <br>defendant's assets as substitute assets.  See id. at 1088. <br>     Similarly, in this case, the district court ordered forfeiture of <br>the Montaez property as a substitute asset to satisfy, at least <br>in part, the $6,000,000 money judgment set forth in the <br>preliminary order of forfeiture because the government <br>established that it could not trace any of the criminal proceeds <br>into any of the defendant's current assets. <br>     In this context, failure to establish any nexus between the <br>MONTAEZ property and the conspiracy is irrelevant.  In fact, <br>such a nexus would render forfeiture of the property as a <br>substitute asset unnecessary.  See Voight, 89 F.3d at 1086 <br>("[t]he substitute asset provision comes into play only when <br>forfeitable property cannot be identified as directly 'involved <br>in' or 'traceable to' [the criminal activity]"). <br>     To obtain an order forfeiting property as a substitute asset, the <br>government need only comply with the requirements of    853(p).  <br>In particular, substitute assets may be forfeited if the <br>government shows that, as a result of any act or omission of the <br>defendant, the forfeitable property "(1) cannot be located upon <br>the exercise of due diligence; [or] (2) has been transferred or <br>sold to, or deposited with, a third party."   853(p)(1) & (2).  <br>     Here, the government complied with  853(p) by submitting a <br>motion and affidavit that recited the efforts the government had <br>made to locate the proceeds of the drug conspiracy that would <br>have been directly forfeitable under  853(a).  See Defendant's <br>App. at 121-24 (Affidavit of Special Agent Felicia Ramos-Andino).  <br>The affidavit concluded that Reyes-Padilla had "dissipated or <br>otherwise disposed of the proceeds of her drug trafficking," id.at 123, so that the proceeds could not, despite the exercise of <br>due diligence, be located.  See id. at 123-24.  Based on this <br>record, it was not error for the district court to order the <br>forfeiture of "other property of the defendant,"  853(p), up to <br>the amount described in the money judgment. See  853(p);  United <br>States v. Hurley, 63 F.3d 1, 23-24 (1st Cir. 1995) (affirming <br>forfeiture of substitute assets under identical provision in 18 <br>U.S.C.  1963(m)). <br>     B.  Determination of Assets <br>     Reyes-Padilla contends that she was denied the right to have the <br>jury determine whether the Montaez Property could be forfeited.  <br>She also asserts that there was no "principal asset" for which <br>the Montaez Property could properly be substituted.  <br>     The forfeiture of substitute assets is a matter left solely to <br>the court.  See Hurley, 63 F.3d at 23 ("the statute says that an <br>order substituting assets is to be made by 'the court'").  As <br>this Court explained in Hurley, the defendant has a right to have <br>the amount subject to forfeiture determined, in the first <br>instance, by the jury.  See 68 F.3d at 23; see also Fed. R. Crim. <br>P. 31(e) (stating that the initial forfeiture is sought in the <br>indictment and is specified in a special verdict).  But the jury <br>has no role in determining, subsequently, whether the property <br>has been dissipated and whether the government is thereby <br>entitled to seek the forfeiture of substitute assets.  "Indeed, <br>the government might not even know that substitution is necessary <br>until it seeks to take possession of the property specified in <br>the initial forfeiture order."  Hurley, 68 F.3d at 23. <br>     In this case, the jury determined -- by rendering the special <br>verdict -- that the conspiracy realized $6,000,000 in proceeds <br>from the commission of the specified offenses, and that the <br>defendant and others were jointly and severally liable for that <br>amount.  Thus, the jury determined that the $6,000,000 was the <br>"principal asset" subject to forfeiture.  In having the jury <br>determine that amount, the defendant was afforded all of the <br>procedural protections regarding the determination of the <br>forfeiture by the jury to which she was entitled. <br>     C.  Double Jeopardy and Waiver <br>     There is no merit whatsoever in Reyes-Padilla's contention that <br>she was subject to double jeopardy because the government <br>commenced its case with a civil seizure, but concluded it by <br>proceeding under the substitute assets provision of the criminal <br>forfeiture statute.  Nor did the government's initial inclusion, <br>and subsequent dismissal, of the Montaez property from Counts 48 <br>and 49 of the Superseding Indictment constitute a waiver of the <br>right to seek forfeiture of the property as a substitute asset. <br>     A completed civil forfeiture of property does not constitute <br>"jeopardy" under the Double Jeopardy Clause, and does not bar the <br>subsequent criminal prosecution and punishment of the defendant <br>whose property was forfeited.  See United States v. Ursery, 518 <br>U.S. 267, 274 (1996) (stating that the Supreme Court has <br>consistently concluded that "the Clause does not apply to [civil <br>forfeitures] because they do not impose punishment").  A <br>fortiori, a civil forfeiture action that goes no further than a <br>seizure, and never results in the entry of any civil forfeiture <br>judgment cannot constitute jeopardy.  Moreover, this Court has <br>recognized that it is "perfectly proper" to begin a forfeiture <br>action with a civil seizure, and then to convert the action to a <br>criminal forfeiture once an indictment is returned.  See United <br>States v. Kingsley, 851 F.2d 16, 18 & n.1 (1st Cir. 1988).  <br>Indeed, that procedure is commonplace. <br>     Nor is it uncommon for the government to shift theories of <br>criminal forfeiture -- from direct forfeiture to substitute <br>assets -- upon return of an indictment.  We held in Voight that <br>when the government's attempt to forfeit the defendant's property <br>directly was unsuccessful, the remedy was for the government to <br>seek forfeiture of the same property as a substitute asset under  <br> 853(p).  See Voight, 89 F.3d at 1088.  If, as Voightillustrates, it is proper to seek the forfeiture of property as a <br>substitute asset even after a jury has rejected the government's <br>attempt to forfeit the property directly, then there is no error <br>in allowing the government to dismiss the property from the <br>forfeiture allegation before it goes to the jury and to seek the <br>forfeiture as a substitute asset after trial.  In dismissing the <br>Montaez property from the forfeiture allegation in Count 49, the <br>government simply shifted its theory of forfeiture from  853(a) <br>to  853(p).  Doing so before submission of the case to the jury <br>was entirely proper in light of the prosecutor's conclusion that <br>there was insufficient evidence to support direct forfeiture <br>under  853(a). <br>     D.  Excessive Fines Clause  <br>     It is well-established that criminal defendants are jointly and <br>severally liable for forfeiture of the full amount of the <br>proceeds of their criminal offense, and that the imposition of <br>such a forfeiture judgment does not constitute an <br>unconstitutionally excessive fine.  See Hurley, 63 F.3d at 23 <br>("the government can collect [the amount subject to forfeiture] <br>only once but, subject to that cap, it can collect from any <br>appellant so much of that amount as was foreseeable to that <br>appellant"); see also  United States v. Simmons, 154 F.3d 765, <br>769-70 (8th Cir. 1998) (holding that each defendant is jointly <br>and severally liable for all foreseeable proceeds of the scheme <br>and that "the government is not required to prove the specific <br>portion of proceeds for which each defendant is responsible"). <br>     In Hurley, we affirmed precisely the action taken here: the <br>imposition of an order substituting other property of each <br>defendant up to the value of the criminal proceeds for which the <br>defendant was jointly and severally liable.  In that case, each <br>of the defendants, including the relatively minor participants, <br>was ordered to forfeit substitute assets up to approximately $140 <br>million in value.  If holding each defendant jointly and <br>severally liable to forfeit that amount in substitute assets did <br>not violate the Excessive Fines Clause, then the forfeiture <br>imposed on Reyes-Padilla does not.   <br>     It is true, as Reyes-Padilla notes, that the Eighth Circuit has <br>held that holding a "secondary figure" jointly and severally <br>liable for the forfeiture of the full amount of the criminal <br>proceeds may constitute an excessive fine if the defendant <br>"reaped little benefit" from the scheme.  See United States v. <br>Van Brocklin, 115 F.3d 587, 602 (8th Cir. 1997).  Van Brocklindoes not aid the defendant. <br>     First, in Hurley, we upheld the imposition of a substitute assets <br>order for the full amount of the criminal proceeds against <br>relatively low-level participants who reaped little personal <br>benefit from the criminal offense.   <br>     Second, in its most recent opinion on the matter, the Eighth <br>Circuit relied on Hurley to uphold a forfeiture order holding the <br>defendants jointly and severally liable for the full amount of <br>the proceeds of a bribery offense, whether or not a given <br>defendant received those funds personally.  See Simmons, 154 F.3d  <br>at 769. <br>     Third, it is appropriate to hold Reyes-Padilla accountable.  <br>Although the district court determined that she was a minor <br>participant in the offense, she served as an important link <br>between Israel Santiago-Lugo and his distributors at the various <br>housing projects.  Because she personally received and stored <br>controlled substances at her apartment and at the apartment of <br>Morales-Santiago, personally provided wholesale quantities of <br>controlled substances to Santiago-Lugo's distributors, and also <br>assisted with maintaining records of these transactions, she is <br>appropriately characterized as being "in charge of Santiago <br>Lugo's drug trafficking business at the Virgilio Dvila Housing <br>Project in Bayamn."  Defendant's App. at 121 (Affidavit of <br>Special Agent Felicia Ramos-Andino). Reyes-Padilla was at <br>Morales-Santiago's apartment when POPR officers seized <br>approximately $96,000 in currency and the drug ledgers reflecting <br>over $3,000,000 worth of transactions during a one-year period.  <br>Given Reyes-Padilla's role, holding her liable for the full <br>amount of the proceeds of the conspiracy falls well within the <br>bounds we prescribed in Hurley. <br>     Finally, Reyes-Padilla does not challenge the $6,000,000 money <br>judgment.  Rather, her appeal challenges only the forfeiture of <br>the Montaez property as a substitute asset.  The Montaez <br>property has a value of only $169,000.  Reyes-Padilla cannot <br>seriously argue that the forfeiture of property valued at that <br>amount is "grossly disproportional" to the gravity of a drug <br>conspiracy that realized millions of dollars in proceeds.  See United States v. Bajakajian, 118 S. Ct. 2028, 2036 (1998) <br>(holding that "a punitive forfeiture violates the Excessive Fines <br>Clause if it is grossly disproportional to the gravity of a <br>defendant's offense").  Accordingly, the forfeiture of Reyes- <br>Padilla's Montaez property does not violate the Excessive Fines <br>Clause of the United States Constitution. <br>                           CONCLUSION <br>         For the reasons stated in this opinion, we AFFIRM. <br></pre>

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