
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1279                                    UNITED STATES,                                      Appellee,                                          v.                                  EFRAIN DE LA CRUZ,                                Defendant, Appellant.                                 ____________________        No. 92-1347                                    UNITED STATES,                                      Appellee,                                          v.                                     LUIS TORRES,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            James  E. Carroll  with whom  Peabody &  Arnold was  on brief  for            _________________             _________________        appellant Efrain De La Cruz.            William H.  Kettlewell with whom Dwyer,  Collora &  Gertner was on            ______________________           __________________________        brief for appellant Luis Torres.            Geoffrey E.  Hobart, Assistant United  States Attorney, with  whom            ___________________        A. John  Pappalardo,  United States  Attorney, and  Jeffrey A.  Locke,        _  ________________                                 _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    June 24, 1993                                 ____________________                 BOUDIN, Circuit Judge.   Efrain De La Cruz,  Luis Torres                         _____________            and  others  were  charged  in a  one-count  indictment  with            conspiracy to possess cocaine with  intent to distribute.  18            U.S.C.    841,  846.  Torres  pleaded guilty; De La  Cruz was            convicted following a jury trial.  In this appeal, De La Cruz            challenges his conviction on a number of grounds, and both he            and Torres contest the  district court's calculation of their            sentences.  We affirm.                 The  events  in this  case are  part  of a  larger story            revolving around a so-called sting operation conducted by the            FBI and other  law enforcement  agencies.  In  the course  of            this   operation,  Colombian   drug  dealers   delivered  615            kilograms of cocaine  to a  man named Pedro  Alvarez who  was            secretly cooperating  with the authorities.   The cocaine was            transported into the United  States and the FBI lodged  it in            Massachusetts  while awaiting  directions from  the Colombian            drug dealers.  In describing  the ensuing events, we  confine            the story to facts pertinent to this case.                 The cocaine arrived  in the  United States  on or  about            June 4, 1991, and on June 5, the Colombian suppliers directed            that a portion--240 kilograms--be  turned over to the "Lucho"            group.   Alvarez  made contact  with a  man purporting  to be            Lucho and  it was agreed  that Lucho's associates  would take            delivery  at 5  p.m. on  June  12, in  the parking  lot of  a            Holiday  Inn  in  Taunton,  Massachusetts.    Two  undercover                                         -3-                                         -3-            officers--FBI  Agent Dillon  and  Providence  Police  Officer            Colon--appeared at the arranged time and place and saw a gold            Cadillac  with three  occupants  driving slowly  through  the            parking  lot.  De La Cruz was  the driver of the Cadillac and            Torres was a passenger; the other passenger was Jose LaPaix.                 The agents flashed their lights and Torres left the car,            approached  the agents,  and discussed  the mechanics  of the            drug  transfer.  Torres said  that he had  brought three vans            with  him from  New  York equipped with   hidden compartments            but  had left them in  Newton, Massachusetts.   It was agreed            that  Torres would  drive to  Newton  with his  companions to            collect the vans and  would contact Dillon and Colon  when he            returned to the Holiday Inn.   Torres, De La Cruz  and LaPaix            departed in the Cadillac.                 Several  hours  later,  around  9   p.m.,  Agent  Dillon            received  a telephone message that  Torres was waiting at the            Holiday Inn.  The agents returned to the parking lot.  Torres            approached their car and told them that he had the vans;  but            he said that  having seen  a police car  driving through  the            lot,  he had directed his  "rollos"--a term used  in the drug            trade to refer to an underling such as a bodyguard or driver-            -to move the vans out of the lot.  Torres and the agents then            agreed to meet at the rear of the lot.                   A few minutes later, Torres arrived there driving a blue            van  bearing New York plates  with one Ruben Rodriguez seated                                         -4-                                         -4-            next to him.  A minute later De La Cruz  pulled alongside the            agents' car  driving a red van with New York plates.  The red            van  was followed by the gold Cadillac, now driven by LaPaix,            with one Sarah Tavares as a passenger.  The third van did not            appear  and a few minutes later Torres signaled the agents to            lead the way to where the cocaine was stored.                   The  FBI  had located  the  shipment in  a  warehouse in            Middleboro, Massachusetts, equipping the facility  with video            and audio  recording equipment.   Within  half  an hour,  the            caravan of vehicles  arrived at the  warehouse and parked  in            front.   Agent  Dillon, seeking  to prevent  too many  of the            suspected gang members from concentrating in one place, asked            Torres to move one  of his vehicles away to  avoid attracting            attention.  Torres and LaPaix conferred; they then spoke with            De La  Cruz, who  left  the red  van and  drove the  Cadillac            across the street  into a parking lot shared by a gas station            and an ice cream parlor.                 De La  Cruz drove  slowly through  this  lot, which  was            partly lit and in view of a number  of people.  He then drove            back  across the  street  to an  unlit  vacant lot  where  he            parked.  This  new lot was adjacent to the  warehouse.  De La            Cruz left the Cadillac and started back toward the warehouse.            He was  then arrested by  FBI agents.  When  arrested, he was            carrying both a beeper and a portable telephone.                                           -5-                                         -5-                 Meanwhile, after  De La Cruz left  the warehouse parking            lot in  the Cadillac, Torres backed the blue van into the bay            area of the warehouse,  where he was joined by  Rodriguez and            LaPaix.  The three men removed the rear seats and floor panel            of the van, uncovering a hidden compartment.  They then began            loading the cocaine into  the van.  After about  70 kilograms            were  loaded  into  the   compartment,  the  three  men  were            arrested.    Torres,  when  arrested,  had  in his  pocket  a            business card with the  telephone number used to reach  De La            Cruz's beeper.                 Subsequently,   all  five   of  those  present   at  the            warehouse--Torres, De La Cruz, Rodriguez, LaPaix and Tavares-            -were indicted for conspiring  to possess cocaine with intent            to distribute.   In  early November  1991, some  weeks before            trial, LaPaix entered into plea negotiations and, on November            7, he made a  limited proffer to the government  for purposes            of  persuading it  to  treat him  at  sentencing as  a  minor            participant.  He made  clear that he would refuse  to testify            for  the government at trial  and that he  wanted his meeting            with the government to remain confidential.                 During  the proffer,  LaPaix was  asked how  De La  Cruz            became  involved.   He  responded  that  they were  long-time            friends and that prior to June 12 neither of  them knew about            the cocaine pick-up nor  was De La Cruz promised  payment for            his help.  Shortly after November 7, LaPaix' counsel told the                                         -6-                                         -6-            other defense counsel--in what detail is not clear--about the            meeting with the government and its subject matter.  Prior to            trial  De La Cruz advised LaPaix' counsel that he intended to            call LaPaix as a witness.                 Trial began  on November  18, 1991.   Immediately before            the jury was impaneled,  Torres and LaPaix pled guilty.   The            government dismissed  the indictment  as to  Tavares.  De  La            Cruz and Rodriguez  then went  to trial.   On November 22,  a            Friday, the government rested  and Rodriguez began to testify            in  his own defense.   Rodriguez did not  return to court the            following  Monday.  The court refused De La Cruz's request to            sever or for a mistrial and the case proceeded  against De La            Cruz and the now absent Rodriguez.                 On November 25, the sixth day of trial, De La Cruz moved            for production of any exculpatory material created by LaPaix'            proffer.  In  an ex parte submission, the government provided                             ________            to  the court  a  summary  of  LaPaix'  proffer.    Over  the            government's objection,  the court  found the material  to be            subject to production  under Brady v.  Maryland, 373 U.S.  83                                         _____     ________            (1963).   The  government then  disclosed to  De La  Cruz the            contents of LaPaix'  proffer, so  far as it  concerned De  La            Cruz, as follows:                 [During the  drive from New York  to Boston] LaPaix                 contacted  Efrain De La Cruz.  And De La Cruz drove                 LaPaix and Torres to the Holiday Inn in Taunton for                 the  meeting with Special Agent Dillon .  . . .  As                 to why  there were so many  telephone calls between                 De  La Cruz and LaPaix  prior to the  pickup of the                                         -7-                                         -7-                 cocaine  or  prior  to  the drive  to  Taunton,  he                 indicated that they were long-time friends from the                 Dominican  Republic  . .  . .    The import  of the                 statement was that De La Cruz did not know prior to                 June 12  about the cocaine  pickup in the  same way                 that LaPaix did not know prior to June 12th.                 De La Cruz then called LaPaix as a witness, advising the            court that the  proffer bore out De La Cruz'  defense that he            was  unaware  of  the drugs  and  was  merely  helping out  a            childhood  friend (LaPaix) find his way around Massachusetts.            LaPaix was  summoned but, in a voir  dire examination, LaPaix                                           ____  ____            invoked  the  Fifth  Amendment  and  refused  to  answer  all            questions  other than  his  name and  address.   De  La  Cruz            objected  to the claim of privilege in light of LaPaix' prior            guilty plea.   The district court  nevertheless sustained the            claim   of  privilege,   observing  that   government  cross-            examination  could produce  testimony  that  would  inculpate            LaPaix not  merely in  the instant transaction  but in  other            transactions.                 On  November 26, the jury found De La Cruz and Rodriguez            guilty.   De La Cruz was sentenced to 188 months imprisonment            and Torres to  235 months.  These appeals followed.   In this            court,  De La Cruz attacks  his conviction by challenging the            sufficiency of  the  evidence, the  denial of  his motion  to            sever or  for a mistrial after Rodriguez disappeared, and the            treatment  of the proffer and LaPaix' claim of privilege.  We            address  these issues first  and then consider  the claims of            both De La Cruz and Torres concerning their sentences.                                         -8-                                         -8-                 We start with De La Cruz' attack on the  adequacy of the            evidence  and find that the  evidence as to  his knowledge of            the conspiracy was circumstantial, arguably thin, but clearly            sufficient.    The evidence,  considered  in  the light  most            favorable to the government, see  United States v. Ortiz, 966                                         ___  _____________    _____            F.2d 707, 711 (1st Cir. 1992), cert.  denied, 113 S. Ct. 1005                                           _____________            (1993),  shows  that De  La  Cruz appeared  at  both meetings            accompanying  three  other  men  involved in  the  drug  deal            (Torres, LaPaix  and Rodriguez);  that De  La  Cruz drove  to            Taunton  one of the vans intended to carry the drugs; that he            took  instructions from Torres, the leader of the group; that            he cruised slowly through the  lot opposite the warehouse and            then moved  the Cadillac from a well-lit  location to another            location where it would be less likely to be noticed; that he            carried a  cellular telephone  and a beeper--both  well known            tools  of the  drug trade;  that the  contact number  for the            beeper was in  Torres' possession;  and that De  La Cruz  and            LaPaix  had exchanged  various  telephone calls  in the  days            prior to June 12.                 These facts, in  our view, permitted a rational  jury to            conclude  beyond a  reasonable doubt  that De  La Cruz  was a            knowing  participant  in the  conspiracy to  transport drugs.            Any  one   fact  alone  may   be  explained  away;   but  the            combination--presence  at  the  scene,   suspicious  conduct,            subordination to the gang leader on the scene, and possession                                         -9-                                         -9-            of communication tools widely used in drug dealing--add up to            more than the sum  of the parts.  It was  left largely to his            counsel to suggest,  based on fragments of  evidence, that De            La Cruz was essentially a bystander, innocently doing a favor            for his  old friend  LaPaix.  It  is not surprising  that the            jury rejected this tale.                 De  La Cruz argues that  his name never  appeared in the            hundreds  of  tape  recordings  made by  the  FBI  as Alvarez            promoted  the sting  with  the Colombians,  but  there is  no            reason  why a low level  "rollo" should be  mentioned in such            conversations.  True,  De La  Cruz never saw  or touched  the            cocaine, nor is  there direct  evidence that he  knew of  its                                   ______            existence.   But  knowledge  may be  based on  circumstantial            evidence, Ortiz, 966 F.2d at 711, and it is the jury's job to                      _____            draw the  proper inference.   Here the materials  for drawing            the inference were  supplied to the  jury, and the  inference            was rational.                 De La  Cruz' next claim  is that the  government wrongly            withheld  information  about  LaPaix'  proffer  that  it  was            obligated  to  disclose  under   the  Brady  doctrine.    The                                                  _____            government has properly abandoned  any claim that the proffer            was not exculpatory  at all.  It now argues  that the promise            of confidentiality  to  LaPaix excused  the  government  from            disclosing the material, cf. United States v. Hicks, 848 F.2d                                     __  _____________    _____            1  (1st Cir.  1988),  and that  in  any case  LaPaix'  lawyer                                         -10-                                         -10-            disclosed the substance  of the  proffer to De  La Cruz  well            before trial.  We need  not resolve the legal dispute  on the            first point or  the factual  dispute on the  second, for  the            simple reason  that the government did  disclose the proffer,            under compulsion, during trial.1                 In cases of belated disclosure, "the critical inquiry is            . . .  whether the tardiness  prevented defense counsel  from            employing  the material to  good effect."   United  States v.                                                        ______________            Devin,  918  F.2d 280,  290 (1st  Cir.  1990).   Here LaPaix'            _____            proffer,  assuming its  contents  were previously  unknown to            counsel  for De  La  Cruz, did  not reveal  any  new line  of            defense; rather, the proffer  was consistent with the defense            that De La Cruz had pursued from the outset.  No evidence was            lost  by the delay: LaPaix was produced immediately.  That he            then claimed privilege  is a  problem De La  Cruz would  have            faced  whenever the proffer was disclosed.  In short, we find            no prejudice from the delay.                 We turn now to De La Cruz' claim that the district court            erred  in   sustaining  LaPaix'   invocation  of  the   Fifth            Amendment.    This claim  is  probably  the most  troublesome            aspect of De La  Cruz' appeal because it sets  in tension two                                            ____________________                 1We do not formally  resolve the government's claim that            it  can avoid  Brady by  promising confidential  treatment to                           _____            someone  it  interviews; but  we  are skeptical  of  any such            blanket claim  and would expect the  government affirmatively            to present  the  issue to  the  district court  if  otherwise            exculpatory material were withheld on this ground.                                         -11-                                         -11-            cardinal precepts: that a criminal defendant should have full            opportunity to secure evidence in his own defense, and that a            witness  should  be  protected  against  being  compelled  to            provide testimony that may  incriminate him.  The core  of De            La Cruz' argument is  that LaPaix had already pled  guilty to            the  conspiracy at  issue and  could not  incriminate himself            further if asked, as De La Cruz proposed to do, whether De La            Cruz was aware that drugs were to be transported.                 It  is uncertain  what  LaPaix would  have  said had  he            testified (the proffer was that De La Cruz knew nothing prior                                                                    _____            to June 12)  but the proffer was suggestive and  it is surely            possible  that   LaPaix  would  have  exculpated  his  friend            entirely.  The jury  in turn might have disbelieved  any such            exculpation in  light of the  friendship between the  men and            the other evidence  against De  La Cruz.   But the  hoped-for            testimony was  relevant and  credibility is  for the jury  to            decide.   Since  the government's  evidence  of De  La  Cruz'            knowledge  was circumstantial, the direct testimony of LaPaix            to the contrary might have been important, even decisive.                   Yet   whatever  the  cost  to  De  La  Cruz,  under  the            Constitution  LaPaix   was  entitled  to  invoke   his  Fifth            Amendment privilege if testifying might incriminate him.  The            trial court's  on-the-spot judgment as  to the risk  of self-            incrimination  is entitled  to deference  and "should  not be            overruled  unless  it is  'perfectly clear`  .  . .  that the                                         -12-                                         -12-            answers   [sought   from  the   witness]   'cannot  possibly`            incriminate."   United States v. Johnson, 488 F.2d 1206, 1209                            _____________    _______            (1st Cir. 1973)  (quoting Hoffman v. United  States, 341 U.S.                                      _______    ______________            479, 487-88 (1951)).   In  this case, we  think the  district            judge was not only reasonable  but plainly correct in holding            that  compelling   LaPaix  to   testify  could   threaten  to            incriminate him.                 LaPaix had not been sentenced at the time of De La Cruz'            trial, and "the convicted but unsentenced defendant retains a            legitimate   protectable  Fifth  Amendment  interest"  as  to            matters that  could affect  his sentence.   United States  v.                                                        _____________            Lugg, 892 F.2d  101, 102-03 (D.C. Cir.  1989); accord, United            ____                                           ______  ______            States  v. Lema, 987 F.2d 48, 54  n.6 (1st Cir. 1993).  Here,            ______     ____            if  LaPaix testified  that he  had recruited  De La  Cruz and            involved  him in the plot  without telling him  of the drugs,            this testimony could have  hurt LaPaix' chances at sentencing            of being treated as a minor or  minimal participant, U.S.S.G.              3B1.2, and could even have led the court to classify him as            a "supervisor," and enhance his sentence.  U.S.S.G.   3B1.1 &            comment note  1 (listing "the recruitment  of accomplices" as            relevant to evaluating a defendant's role in the offense).                   As the district  court suggested, testifying would  also            have  put LaPaix  at risk  of disclosing  his involvement  in            other  drug  transactions.    The  government,  in  order  to            challenge LaPaix'  testimony exculpating  De  La Cruz,  would                                         -13-                                         -13-            almost certainly have  sought to  question LaPaix  vigorously            about other possible  transactions in which LaPaix and  De La            Cruz were involved.   The  aim would be  to undercut  LaPaix'            claim of an innocent friendship that led by accident to De La            Cruz' presence at the scene.  See Fed. R. Evid. 404(b) (other                                          ___            wrongs may be proved to refute claim of mistake or accident).            And LaPaix' refusals  on voir dire to provide anything except                                     ____ ____            his name and address indicate  that the privilege would  have            been promptly invoked in response to such questions.                  Some courts have said  that the trial judge may  or even            must  limit the government's  cross-examination on collateral            matters  if this  can  be done  without  unduly limiting  the            government  and if  doing  so will  preserve the  defendant's            ability to call a material  witness who would otherwise claim            the privilege.2  In  this case, however, effective government            cross-examination  would have been  seriously impaired if the            prosecutor were denied latitude to explore the joint criminal            history of De La Cruz and LaPaix.  Faced with a simple denial            by LaPaix that  he had  told De La  Cruz of the  cocaine--the            testimony  that De La Cruz' counsel said he hoped to elicit--                                            ____________________                 2See United  States v. Esparsen, 930  F.2d 1461, 1469-70                  ___ ______________    ________            (10th Cir.), cert. denied, 112 S. Ct. 882 (1991)  (collecting                         ____________            cases).   United  States v.  Pardo, 636  F.2d 535  (D.C. Cir.                      ______________     _____            1980), is the classic example.  In United States  v. Zirpolo,                                               _____________     _______            704  F.2d 23,  26  (1st Cir.),  cert.  denied, 464  U.S.  822                                            _____________            (1983), this court declined to decide whether it would follow            Pardo.            _____                                         -14-                                         -14-            inquiry into the past  activities of the two would  have been            the most obvious resort for cross-examination.                   We have  "recognized the need  to prevent coconspirators            from `whitewashing'  each  other  through  use  of  testimony            unchallengeable  for one  reason or  another."   Zirpolo, 704                                                             _______            F.2d  at 26 (quoting United  States v. Lowell,  649 F.2d 950,                                 ______________    ______            962  (3d  Cir. 1981)).  There  is  nothing  that  prevents  a            defendant  from offering  such testimony  if the  alleged co-            conspirator  is  willing to  testify,  but  the safeguard  of            cross-examination  is more  important  than usual  in such  a            case.    Cf.  Fed.  R.  Evid.  804(b)(3)  (excluding  hearsay                     ___            evidence of this kind, unless corroborated, from declaration-            against-interest exception  to the hearsay rule).   In short,            we  do  not  think that  in  this  case  the privilege  could            properly  be  preserved by  cabining the  government's cross-            examination.                 Of course,  the prosecutor could resolve  the dilemma by            seeking  formal immunity  for the  witness under 18  U.S.C.              6003,  but most courts have held that judges are powerless to            compel such a grant by the U.S. Attorney.   See United States                                                        ___ _____________            v.  Angiulo,  897  F.2d  1169, 1191  (1st  Cir.)  (collecting                _______            cases),  cert.  denied, 498  U.S.  845 (1990).    Indeed, the                     _____________            privilege   has  been  routinely   invoked  by   alleged  co-            conspirators called by the defendant to exculpate him.  E.g.,                                                                    ____            Zirpolo,  704 F.2d at 25; Johnson, 448  F.2d at 109.  A trial            _______                   _______                                         -15-                                         -15-            court might still refuse  to entertain the prosecution  if it            found  that  defense  testimony  had  been  thwarted  by  the            misconduct   of  the   prosecutor   (e.g.,  by   gratuitously                                                 _____            threatening to prosecute  the witness if  he testifies).   No            basis has been suggested for a misconduct claim in this case.                 It  must be  remembered  that the  defendant could  also            testify  to  the  very   same  exculpatory  facts,  for  "[a]            defendant is available  to himself  as a witness."   Gacy  v.                                                                 ____            Welborn, Nos. 92-3448 and  92-3965, slip op. at 22  (7th Cir.            _______            April  12,  1993).   A  defendant  who  declines to  testify,            protecting  himself  against  self-incrimination   on  cross-            examination, is well within his rights; but so is the witness            who  invokes   his  own  Fifth  Amendment   rights  to  avoid            testifying and  so is  the prosecutor  who declines  to grant            immunity to  the witness.  There may  be rare cases where the            denial of  immunity would comprise a  miscarriage of justice.            This is not such a case.                 De  La  Cruz'  final  argument,  apart  from  sentencing            issues,  is that the court erred in  denying his motion for a            mistrial or a  severance when Rodriguez failed to  appear for            the sixth day of  trial.  While the jury  might have inferred            Rodriguez'  guilt from  his  flight,  the  jury was  shown  a            videotape of  Rodriguez loading cocaine  into the van  so the            inference added little.  De  La Cruz had no direct  link with            Rodriguez  and there  is no  reason why  he should  have been                                         -16-                                         -16-            affected by the  inference.   Finally, the  court offered  to            negate the inference with  an appropriate instruction, but De            ______            La Cruz' counsel objected  to such an instruction, preferring            to argue to the jury about the import of Rodriguez' absence.                 Nor  can  any  prejudice  be traced  to  Rodriguez'  own            testimony, completed  but not  fully cross-examined,  when he            left the trial.   We have  reviewed Rodriguez' testimony  and            conclude  that it did not incriminate De La Cruz or seriously            conflict with his own  theory of defense.  Indeed,  Rodriguez            never once  referred to De La  Cruz.  In any  case, the court            offered  to strike the testimony and so instruct the jury but            again, for tactical reasons, De  La Cruz rejected this offer,            so  we do not see how he  can now complain that the testimony            remained on the record.                 We  come, finally, to the  objections of De  La Cruz and            Torres  to  the sentences  imposed  upon them.    A narcotics            conspirator  is responsible  not only  for drugs  he actually            handled or saw  but also for the full  quantity of drugs that            he  reasonably  could have  foreseen  to be  embraced  by the            conspiracy  he joined.  See U.S.S.G.    2D1.4, 2D1.1, 1B1.3 &                                    ___            comment n.1;  United States v.  O'Campo, 973 F.2d  1015, 1023                          _____________     _______            (1st  Cir. 1992).   The  district court's  finding as  to the            quantity  embraced by the  conspiracy and reasonably foreseen            by the defendant is a  factual one and will not  be disturbed            unless  clearly erroneous.  United  States v. Tracy, 989 F.2d                                        ______________    _____                                         -17-                                         -17-            1279, 1287 (1st Cir.), cert. denied, 61 U.S.L.W. 3773 (1993).                                   ____________            The same standard  of review applies to other  factual issues            pertinent  to sentencing,  including the  role played  by the            defendant in  the conspiracy.  United States  v. Tabares, 951                                           _____________     _______            F.2d 405, 410 (1st Cir. 1991).                 Here, the district court held De La Cruz responsible for            the  entire 240  kilograms of  cocaine that  the  Lucho group            sought  to collect from the warehouse.   De La Cruz argues in            this court that there is no evidence that he knew the precise            amount of cocaine  that was inside  the warehouse.   Strictly            speaking, that is so.  What  he must have known, however, was            that  a very  large quantity  was involved:  as the  district            court noted,  De La Cruz was  part of a  four vehicle caravan            that included  two vans  destined to  carry away  the cocaine            stored at the warehouse.                 A defendant who conspires to transport  for distribution            a  large quantity  of  drugs, but  happens  not to  know  the            precise amount, pretty much takes his chances that the amount            actually  involved will  be  quite large.    On De  La  Cruz'            theory,  no amount at all  could properly be  assigned to him            if, as may well be the case, he never had a specific quantity            in mind.  The danger actually posed by the conspiracy was the            distribution of 240 kilograms,  De La Cruz knew that  a large            quantity was involved, and--absent  special circumstances--we            think that is enough.                                         -18-                                         -18-                 De La Cruz  also takes issue  with the district  court's            decision to  treat  him  as  a  "minor  participant"  in  the            conspiracy,  resulting in  a  two-level downward  adjustment.            U.S.S.G.   3B1.2(b).   Instead, De La Cruz argues,  he should            have  been classed  as a  "minimal participant"  and given  a            four-level reduction under section  3B1.2(a).  The guidelines            and commentary do not  define "minimal" but they do  say that            the  adjustment will  be used  "infrequently"; and  they also            furnish a pair of examples of a minimal participant: "someone            who  played no other role in a very large smuggling operation            than to offload part of a single marihuana shipment, or . . .            an individual [who] was  recruited as a courier for  a single            smuggling  transaction involving  a small  amount of  drugs."            U.S.S.G.   3B1.2 comment note 2.  Here, De La Cruz was one of            the drivers  in a caravan seeking to  carry away a very large            cache  of narcotics.     He fits  neither the letter  nor the            spirit of the examples.                   Torres,  by contrast,  was  found to  be an  "organizer,            leader,  manager or  supervisor"  and  accorded  a  two-level            increase  in his offense level.   U.S.S.G.    3B1.1(c).  This            enhancement is  appropriate if the defendant  "exercised some            degree of  control over others involved in  the commission of            the crime . . . ."   United States v. Fuller, 897  F.2d 1217,                                 _____________    ______            1220  (1st Cir. 1990).  Here, the facts already recited amply            support the  district court's  finding that Torres'  role was                                         -19-                                         -19-            equivalent to that of  a job-site foreman: he took  charge of            the  negotiations with the undercover agents to fix the final            time for the  drug transfer, orchestrated the  arrival of the            vans, and directed the actions of De La Cruz and Rodriguez.                 Contrary  to Torres'  argument in  this court,  the fact            that  Torres may have been working for Lucho does not prevent            Torres from being treated as a supervisor.  "A defendant need            not be the  highest ranking  member of a  criminal troupe  in            order  to  be a  manager or  supervisor."   United  States v.                                                        ______________            Savoie,  985 F.2d 612, 616 (1st Cir. 1993).  United States v.            ______                                       _____________            Sostra,  967 F.2d 728 (1st Cir. 1992), relied upon by Torres,            ______            is not  on point.   There, the defendant's  role in  the drug            transactions  was  that   of  "steerer,"  bringing   together            potential  buyers  and  sellers.   Id.  at  733.   There  was                                               __            "nothing  in the  record  to show  that  he [Sostra]  exerted            control over any of the other codefendants, with the possible            exception of his brother  . . . ."  Id.                                                __                 In sum,  we conclude  that De  La  Cruz' conviction  and            sentence  and  Torres'  sentence  were  proper  and  must  be            affirmed.            ________                                         -20-                                         -20-
