
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-2182                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                HECTOR H. TUESTA-TORO,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                                                                      ____________________                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Kevin G. Little for appellant.             _______________             Jose  A. Quiles  Espinosa, Senior  Litigation Counsel,  with whom             _________________________        Guillermo Gil,  United States Attorney, and  Warren Vazquez, Assistant        _____________                                ______________        United States Attorney, were on brief for appellee.                                                                                      ____________________                                    July 25, 1994                                                                                      ____________________                    CYR,  Circuit Judge.   Following  a three-day  trial, a                    CYR,  Circuit Judge.                          _____________          jury  returned  guilty  verdicts  on  four  drug-related  charges          against defendant-appellant Hector H. Tuesta Toro ("Tuesta"), who          was  sentenced to  serve 128  months in  prison, and  this appeal          ensued.  Finding no reversible error, we affirm.                                          I                                          I                                        FACTS                                        FACTS                                        _____                    We set out the  salient facts in the light  most favor-          able to the verdicts.  United States v. Tejeda, 974 F.2d 210, 212                                 _____________    ______          (1st  Cir. 1992).  On September 2, 1992, after receiving informa-          tion from a  confidential informant ("CI") that Tuesta  and code-          fendant Carlos Martinez Diaz ("Martinez") were distributing large          quantities of  cocaine in  the  San Juan  metropolitan area,  the          United  States Drug  Enforcement Administration  ("DEA") recorded          telephone conversations during which  Martinez agreed to sell the          CI  five kilograms of cocaine at $16,500 per kilogram and identi-          fied Tuesta as his source.  Martinez in turn spoke with Tuesta by          cellular  phone in order to  establish the price  and quantity of          the  cocaine to be sold to the CI and the site of the drug trans-          action, but then lost phone contact with Tuesta.                    The  next day Martinez advised  the CI by  phone that a          one-kilogram  transaction (rather than the five-kilogram transac-          tion discussed the  day before) would take  place that afternoon,          but that Tuesta did not  wish to be seen by the buyer.   Martinez          reestablished  telephone  contact  with  Tuesta at  2:40  in  the                                          2          afternoon.   En route to  the scene of  the transaction, Martinez          noted  that Tuesta was carrying a gun  and more than one kilogram          of  cocaine.   At  Tuesta's  instruction,  Martinez parked  their          vehicle  so that Tuesta could witness the drug deal without being          observed.  Martinez then exited the car and delivered the cocaine          to the CI, who was accompanied by an undercover DEA agent.                      Shortly thereafter, Martinez  and Tuesta were  arrested          and charged  with possessing cocaine, with  intent to distribute,          see  21 U.S.C.    841(a)(1), 18  U.S.C.   2;  carrying a  firearm          ___          during and in  relation to  a drug trafficking  offense, see  id.                                                                   ___  ___             942(c)(1), 2;  and with  two counts  of using  a communication          facility to facilitate a drug trafficking offense, see  21 U.S.C.                                                             ___            843(b), 18 U.S.C.   2.  Martinez eventually entered into a plea          agreement  with the  government and  testified against  Tuesta at          trial.   Following  Tuesta's  conviction on  all  counts, he  was          sentenced to 128 months' imprisonment.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Evidence Rule 404(b)          A.   Evidence Rule 404(b)               ____________________                    Prior  to  trial, Tuesta  filed  an  omnibus motion  to          compel discovery which included the following request:                    [a]ll confessions,  admissions and statements                                                       __________                    to  the  United States  Attorney, or  any law                    enforcement agent, made by any  other person,                                       ____ __ ___  _____ ______                    whether indicted  or  not, that  in  any  way                                               ____  __  ___  ___                    exculpate, inculpate  or refer to  the defen-                                             _____ __  ___ ______                    dant, whether or not such confessions, admis-                    ____  _______ __ ___ ____                                          3                    sions  and  statements have  been  reduced to                                __________ ____  ____  _______ __                    writing.                        _______          (Emphasis added.)   The motion made no mention of  Rule 404(b) or          "other wrongful acts" evidence.                      The government responded that  it intended to pursue an          "open  file" discovery  policy  and that  only government  agents          would be called to testify against Tuesta.  Following the govern-          ment's response, however, Martinez  entered into a plea agreement          which provided that he  would testify against Tuesta.   Except as          discussed below, Tuesta did not claim surprise.                    At  trial,  the  defense objected  when  the government          asked Martinez how he knew Tuesta.  The government responded that          Martinez  would  testify  to  prior drug  dealings  with  Tuesta.          Tuesta  objected  on the  ground that  he  had not  been afforded          pretrial notification  of the government's intention  to use Rule          404(b) evidence.  The court admitted the evidence for the limited          purpose of refuting Tuesta's  "mere presence" defense, see United                                                                 ___ ______          States  v. Hernandez, 995 F.2d 307, 314 (1st Cir.), cert. denied,          ______     _________                                _____ ______          114 S. Ct. 407  (1993), after ruling that its probative value was          not substantially  outweighed by the danger  of unfair prejudice,          see Fed.  R. Evid. 403.   The court, acting sua  sponte, gave the          ___                                         ___  ______          jury a contemporaneous limiting instruction.                 1.   The Notification Requirement of Rule 404(b)               1.   The Notification Requirement of Rule 404(b)                    ___________________________________________                    Tuesta first contends  that the  "other wrongful  acts"          evidence introduced through codefendant Martinez should have been          excluded because  the government  failed to provide  the pretrial                                          4          notification  required by  Evidence  Rule 404(b)  in response  to          Tuesta's omnibus motion for  discovery.  The government maintains          that  Tuesta made  no  cognizable Rule  404(b)  request prior  to          trial.                    The question presented is  one of first impression: how          particular  must a  pretrial  discovery request  be  in order  to          trigger the government's responsibility  to disclose Rule  404(b)          evidence as  a precondition to its use at trial?  Rule 404(b), as          amended in 1991, provides in relevant part:                    Evidence of other crimes, wrongs,  or acts is                    not admissible  to prove  the character of  a                    person in order to show action  in conformity                    therewith.   It  may, however,  be admissible                    for other purposes, such as proof of  motive,                    opportunity, intent, preparation, plan, know-                    ledge,  identity or  absence  of  mistake  or                    accident, provided  that upon request  by the                              ________  ____ ____ _______  __ ___                    accused,  the prosecution in  a criminal case                    ________  ___ ___________ __  _ ________ ____                    shall provide reasonable notice in advance of                    _____ _______ __________ ______ __ _______ __                    trial . . . of the general nature of any such                    _____       __ ___ _______ ______ __ ___ ____                    evidence it intends to introduce at trial.                    ________ __ _______ __ _________ __ ______          Fed. R. Evid. 404(b)  (emphasis added).  As the rule  speaks only          of a "request by the accused" and the duty of  the prosecution to          provide reasonable  pretrial notification "of the  general nature          of any such evidence it  intends to introduce at trial," id.,  we                                                                   ___          turn elsewhere for guidance.                      The  advisory committee's notes  to the  1991 amendment          define the responsibilities of the respective parties in request-          ing and affording pretrial notification under Rule 404(b):   "The          amendment to  Rule 404(b) . . . . expects  that counsel for . . .          the defense . .  . will submit the necessary  request . . .  in a          ___ _______          reasonable and  timely manner."   Fed.  R. Evid. 404(b)  advisory          __________                                          5          committee's notes (1991 amendment) (emphasis added).  The adviso-          ry committee note simply confirms the requirement implicit in the          rule itself    that the defense must submit, "in a reasonable and          timely  manner," its  request  for pretrial  notification of  the          general nature of any  evidence of other crimes, wrongs,  or acts          the government  intends to  introduce at  trial  for purposes  of          proving "motive, intent,  preparation, plan, knowledge,  identity          or absence  of mistake or  accident," Fed.  R. Evid. 404(b).   We          think it beyond question,  therefore, that a "reasonable" request          for notification, at  a minimum, must  be sufficiently clear  and          particular, in an  objective sense, fairly to  alert the prosecu-          tion that the defense is requesting pretrial notification  of the          general  nature  of  any  Rule 404(b)  evidence  the  prosecution          intends to introduce.                     An overbroad pretrial request,  like the present    for          "confessions, admissions and  statements .  . . that  in any  way          exculpate,  inculpate or refer  to the defendant"     is insuffi-          ciently  specific  at the  very least,  if  not misleading.   Cf.                                                                        ___          United States v. Carrasquillo-Plaza, 873 F.2d at 10, 12 (1st Cir.          _____________    __________________          1989) (noting that overbroad discovery requests, absent a specif-          ic  showing of materiality, do not  afford the prosecution proper          notice in analogous  Rule 16 context);  United States v.  Hemmer,                                                  _____________     ______          729 F.2d 10, 14-15 (1st Cir.) (same), cert. denied, 467 U.S. 1218                                                _____ ______          (1984).   The omnibus motion submitted by Tuesta made no discern-          ible  reference  to  anything  resembling  "other wrongful  acts"          evidence  nor did  it request  mere  notification of  the general                                          6          nature  of any  such  evidence.    Rather, it  demanded  outright          pretrial disclosure of  statements in any form,  referring to the          defendant in  any way, without  regard to their  admissibility or          the  government's  intention to  introduce  them.1   See  Fed. R.                                                               ___          Evid. 404(b);  cf., United States v. Williams, 792 F. Supp. 1120,                      ;  ___  _____________    ________          1133  (S.D.  Ind. 1992)  (notification  required  in response  to          detailed request reciting text of Rule  404(b)); United States v.                                                           _____________          Alex,  791 F. Supp. 723,  728 (N.D. Ill.  1992) (similar; request          ____          specifically referencing Rule 404(b)).                      Accordingly, at  a minimum  the defense must  present a          timely request sufficiently clear and particular, in an objective          sense, to  fairly  alert  the  prosecution that  the  defense  is          invoking  its  specific right  to  pretrial  notification of  the          general  nature  of  all  Rule 404(b)  evidence  the  prosecution          intends to introduce at  trial.  The rule we  describe will bring          pretrial practice under Rule  404(b) in line with  circuit prece-          dent  governing  the  prosecution's  duty  to  provide  discovery          material under Federal Rule  of Criminal Procedure 16.   Cf. Fed.                                                                   ___          R.  Evid.  404(b)  advisory  committee's  notes  (1991 amendment)          (noting that amended  rule "places Rule 404(b)  in the mainstream                                                                 __________          with notice and disclosure provisions in other rules of evidence"                                                __ _____ _____ __ ________          but was not intended to impose on government a greater disclosure                                        ____________________               1As a further condition  precedent to the government's duty,          we note that Rule 404(b) seemingly requires pretrial notification          only  of  "other wrongful  acts"  evidence  which the  government          presently  intends, as of the time the government responds to the                              __ __ ___ ____ ___ __________ ________ __ ___          request,  to introduce  at  trial.   The  present appeal  neither          _______          requires that we  determine the point nor consider  its ramifica-          tions.                                            7          burden than "currently .  . . required . . . under [Fed. R. Crim.          P.] 16") (emphasis added).  See also supra note 1.                                       ___ ____ _____                                          8               2.   Admission of 404(b) Evidence at Trial               2.   Admission of 404(b) Evidence at Trial                    _____________________________________                    Next, Tuesta  contends that it was  reversible error to          admit the  Martinez testimony  to rebut Tuesta's  "mere presence"          defense.    These evidentiary rulings  normally are reviewed  for          abuse of discretion.   United States v. Figueroa, 976  F.2d 1446,                                 _____________    ________          1454 (1st Cir.  1992), cert. denied, 113 S. Ct.  1346 (1993).  As                                 _____ ______          Tuesta made no contemporaneous  objection, however, we review for          "plain error,"  id. at 1453, and  will reverse only if  the error                          ___          "seriously affect[ed] the fundamental fairness and basic integri-          ty  of the proceedings," United  States v. Carty,  993 F.2d 1005,                                   ______________    _____          1012 n.9 (1st Cir. 1993).                     A Rule 404(b) proffer  must undergo a two-step inquiry:                    First,  under  the  "absolute  bar"  of  Rule                    404(b), the evidence is inadmissible if rele-                    vant solely to show the defendant's character                    or propensity for  criminal conduct; it  must                    have some  "special relevance" to  a material                    issue  such  as motive,  opportunity, intent,                    preparation,  plan  or  knowledge.    Second,                    under  Rule 403, the trial court must satisfy                    itself that the  probative value of the  evi-                    dence  is not substantially outweighed by the                    danger  of  unfair  prejudice,  confusion  or                    undue delay.           Id. at 1011 (citations omitted).  The district court admitted the          ___          Martinez testimony relating to  prior drug deals with  Tuesta for          the limited purpose of  refuting Tuesta's "mere presence" defense          that he was at the drug scene by "mistake."  Fed. R. Evid. 404(b)          (evidence admissible  to prove,  inter  alia, knowledge,  intent,                                           _____  ____          absence of mistake); Carty, 993  F.2d at 1011 (prior drug-dealing                               _____          evidence  admitted where  defendant  raised  "mere presence"  de-          fense); United States  v. Agudelo,  988 F.2d 285,  287 (1st  Cir.                  _____________     _______                                          9          1993) (same).  Further,  after the district court ruled  that the          probative value of the evidence  outweighed any "danger of unfair          prejudice," Fed.  R. Evid. 403,  it minimized  the potential  for          prejudice  with a contemporaneous  limiting instruction, which it          reiterated in the final charge.  See Tejeda, 974 F.2d at 214.  We                                           ___ ______          discern no error, plain or otherwise.          B.   Use of Communication Facility to Effect Drug Crime          B.   Use of Communication Facility to Effect Drug Crime               __________________________________________________                    Tuesta challenges  the guilty verdicts  on counts three          and four, on the grounds  that the district court  misinterpreted          18 U.S.C.    2 and that  there was insufficient evidence  that he          aided and abetted Martinez in the use of a communication facility          to effect  the cocaine transaction, see  21 U.S.C.    843(b).  We                                              ___          disagree.                      Section 843(b) prohibits use of a communication facili-          ty to cause or facilitate a  felonious drug offense.  See  United                                                                ___  ______          States v. Cordero,  668 F.2d 32,  43 (1st  Cir. 1981).   Tuesta's          ______    _______          challenge to the  sufficiency of the evidence requires that "[w]e          view the evidence in  the light most favorable to the verdict, in          order  to determine whether a  rational trier of  fact could have          found guilt beyond a reasonable doubt.  All reasonable inferences          are  drawn in favor of the verdict and any credibility determina-          tion must be compatible with the judgment of conviction." Tejeda,                                                                    ______          974 F.2d at 212 (citations omitted).                    The jury  was entitled  to credit Martinez's  testimony          that he telephoned Tuesta, on September 2 and 3, 1992, to arrange          the  time and place at which the cocaine transaction would occur,                                          10          as well  as the  price  and quantity  of cocaine.    No more  was          required.   Thus, even  if Tuesta had  played no part  in the two          telephone  conversations between  Martinez and  the CI,  the jury                                   _______  ________ ___  ___ __          rationally could have inferred,  from the two telephone conversa-          tions between Martinez and Tuesta,  that Tuesta knowingly used  a                _______ ________ ___ ______          communication facility to effect the cocaine deal.2               C.   "Background" Hearsay               C.   "Background" Hearsay                     ___________________                    A DEA agent testified  that during a debriefing session          the  CI stated that Martinez acted in behalf of Tuesta in setting          up cocaine deals.  Tuesta contends that admission of this hearsay          testimony, over timely objection, was error.  We agree.                    As  the  government  conceded  at  oral  argument,  the          agent's testimony purported  to relate an out-of-court  statement          by the  CI offered for the  sole purpose of proving  the truth of                                      ____          the matter asserted  (i.e., Tuesta's role in  the instant offens-                                ____          es).   See  Fed. R.  Evid. 801;  cf. Figueroa,  976 F.2d  at 1458                 ___                       ___ ________          (noting that so-called "background" hearsay is not hearsay at all          unless  introduced to prove  the truth  of the  matter asserted).          Thus,  its admission  constituted error.   We  conclude, however,          that the error was harmless.  See id.                                        ___ ___                    First,  the  testimony  was  cumulative  of  Martinez's          testimony on  the same  matter.  Further,  independent admissible                                        ____________________               2Since the  indictment, as well  as the jury  instruction on          the  section 843(b)  charges, encompassed  Tuesta's conduct  as a          principal  and as an  aider and abettor, we  need not address his          contention  that he  could not  be convicted  under 18  U.S.C.  2          because  there was no evidence that he instructed Martinez to use          a communication device to arrange the cocaine sale.                                          11          evidence confirmed that Tuesta determined the conditions of sale,          supplied  the cocaine,  and witnessed  the cocaine  exchange from          nearby  while in possession  of a loaded firearm.   Thus, "we can          say  'with  fair assurance,  after  pondering  all that  happened          without stripping the erroneous action  from the whole, that  the          [jurors'] judgment  was not substantially swayed  by the error.'"          Id.  at 1459 (quoting Kotteakos  v. United States,  328 U.S. 750,          ___                   _________     _____________          765 (1946) ("harmless error" standard)).          D.   Ineffective Assistance of Counsel          D.   Ineffective Assistance of Counsel               _________________________________                    Next, Tuesta attempts to present an "ineffective assis-          tance" claim  on direct appeal.   As a  general rule,  we address          such  Sixth Amendment claims on direct appeal only if "the criti-          cal  facts are not in dispute and a sufficiently developed record          exists." United States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir.                   _____________    _________          1994) (citing United  States v.  Daniels, 3 F.3d  25, 26-27  (1st                        ______________     _______          Cir. 1993)).  Ordinarily, a collateral proceeding under 28 U.S.C.            2255 is  the proper forum for fact-bound ineffective assistance          claims.  See  Jadusingh, 12  F.3d at 1170.   Tuesta's  contention                   ___  _________          that trial  counsel inexplicably failed to  discover the identity          of the CI was not raised in the district court and is sufficient-          ly fact-bound to preclude effective review on the present record.                                          12          E.   Prosecutorial Misconduct          E.   Prosecutorial Misconduct               ________________________                    Tuesta contends that the prosecution improperly vouched          for Martinez's  testimony during its  closing argument.3   In the          absence of a contemporaneous  objection, we review allegations of          prosecutorial  misconduct for  plain error,  and will  overturn a          jury  verdict  only "if  the  government's  closing argument  'so          poisoned the well' that it is likely that the verdict was affect-          ed."  United States v.  Smith, 982 F.2d 681, 682 (1st  Cir. 1993)                _____________     _____          (citing United  States v.  Mejia-Lozano, 829  F.2d 268,  274 (1st                  ______________     ____________          Cir. 1987)).  Any vouching which  may have occurred was so  faint          as to be virtually indiscernible even to the trained ear.  We are          confident  that there  is  no likelihood  that the  verdicts were          tainted by the alleged prosecutorial misconduct.  Id.                                                              ___          F.   Cumulative Error          F.   Cumulative Error               ________________                    As  most assignments  of error  were baseless,  we must          also  reject Tuesta's  final contention  that the  conviction was          tainted by cumulative error.   See United States v.  Barnett, 989                                         ___ _____________     _______          F.2d 546, 560 (1st Cir.)  ("The Constitution entitles a  criminal          defendant  to a fair trial, not a perfect one.") (citing Delaware                                                                   ________                                        ____________________               3Tuesta argues  that the prosecutor  improperly vouched  for          Martinez's credibility by stating that "when a person repents and          wants to  cooperate, we need to present the testimony to the jury          so that the jury has the facts at hand."  Although he states that          there was no evidence that Martinez approached the government and          offered to  testify, Tuesta concedes that  evidence was presented          that  the plea  agreement  did not  require Martinez  to testify.          Second, Tuesta  contends that the prosecutor's  reference to "the          facts at hand" placed the government's prestige behind Martinez.                                          13          v. Van Arsdall,  475 U.S. 673, 681 (1986)),  cert. denied, 114 S.             ___________                               _____ ______          Ct. 148 (1993).          G.   Sentencing Error            G.   Sentencing Error               ________________               1.   Acceptance of Responsibility               1.   Acceptance of Responsibility                    ____________________________                    Tuesta argues that the district court improperly denied          a  reduction for  acceptance  of responsibility,  see U.S.S.G.                                                               ___          3E1.1, without  affording him  an adequate opportunity  to evince          remorse.                     Tuesta distorts the record.  He continued to assert his          innocence during a post-conviction  interview with the  probation          officer.   At sentencing, the district court twice invited him to                                                       _____          accept  responsibility,  by  pointing  out  that  the  sentencing          hearing  would be his last  opportunity to do  so.4  Nonetheless,          though Tuesta asked the court for leniency, he said nothing which          might  be taken to indicate remorse.  Thus, he squandered several          opportunities to verbalize  acceptance of responsibility, leaving          the  district  court little  choice  but to  adopt  a presentence          report recommendation that no reduction be allowed.  There was no          error.               2.   Sentencing Enhancement for Managerial Role               2.   Sentencing Enhancement for Managerial Role                    __________________________________________                    Finally,  Tuesta  challenges the  two-level enhancement          imposed  for his managerial role  in the offense,  see U.S.S.G.                                                               ___                                        ____________________               4Prior to Tuesta's allocution, the court stated:  "I haven't          heard  any acceptance  of  responsibility."   Moments later,  the          court said:  "Well,  you can say some things that  may be able to          help you; but if you don't say them . . . that's up to you."                                          14          3B1.1  (1993), which the district court premised in part upon the          unusual  purity of the cocaine supplied by Tuesta.  A defendant's          role in the offense must be established by a preponderance of the          evidence, see United  States v.  Sostre, 967 F.2d  728, 731  (1st                    ___ ______________     ______          Cir.  1992),  and the  sentencing  court's  factual findings  are          reviewed only for clear error, Jadusingh, 12 F.3d at 1169.                                           _________                    The exercise of  decision-making authority, the  degree          of participation in  planning or organizing the offense,  and the          degree  of control  and  authority the  defendant exercised  over          others are  among the  factors  to be  considered in  determining          managerial role. See U.S.S.G.   3B1.1, comment (n.4).  The record                           ___          is  replete with evidence that Martinez acted at the direction of          Tuesta in setting the time and place of the drug transaction, and          the price and quantity of the cocaine.   United States v. Cronin,                                                   _____________    ______          990  F.2d 663,  665 (1st  Cir. 1993)  (noting that  such evidence          supports finding of managerial role.)  Additionally, the district          court  properly relied on the unusual purity of the cocaine (98%)          Tuesta supplied  to Martinez, as  a further ground  for inferring          that  Tuesta performed a managerial  role.  See  United States v.                                                      ___  _____________          Iguaran-Palmar,  926 F.2d  7, 9 (1st  Cir. 1991).   There  was no          ______________          error.                     The judgment is affirmed.                                     affirmed                    ___ ________ __ ________                                          15
