March 9, 1993
                      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-1147

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                    JUAN CARLOS VELEZ-POSADA,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose Antonio Fuste, U.S. District Judge]
                                                       

                                           

                              Before

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

                                           

  Enrique Velez-Rodriguez for appellant.
                         
  Juan Carlos Velez-Posada on brief pro se.
                          
  Jose A.  Quiles-Espinosa,  Senior  Litigation Counsel,  with  whom
                          
Daniel  F. Lopez-Romo, United  States Attorney, and  Hernan Rios, Jr.,
                                                                   
Assistant United States Attorney, were on brief for appellee.

                                           

                                           

     COFFIN,  Senior  Circuit  Judge.    Defendant  appeals  from
                                    

judgments  of conviction  for importing  cocaine into  the United

States,  21 U.S.C.     952(a), and  for  possessing a  non-listed

controlled substance on board  an aircraft, 21 U.S.C.    955.  In

addition to having read appellate counsel's brief and listened to

oral argument,  we also have  read supplemental and  reply briefs

filed by appellant  himself.   Our conclusion,  after giving  due

attention to all  claims, is  that we must  affirm the  judgments

below.  

                          A. Sufficiency

     We  address first  whether  the evidence  was sufficient  to

support  the verdicts.  Appellant testified to a series of events

beginning  with  meetings  at   his  father's  bar  in  Medellin,

Colombia, with two men who said that appellant  owed them a favor

and who  wanted his  passport number and  photographs; continuing

with a rendezvous at a street corner; a taxi ride  to the airport

and a  flight to the  island of  San Andres; the  receipt of  two

heavy suitcases supposedly containing clothes,  as well as an air

ticket (purchased  by one person and reconfirmed  by another) for

travel from Nicaragua to Panama and then to Madrid, and $2,000 in

cash; and subsequent travel to Panama for a three-day stay during

which appellant called home a number of  times but did not reveal

his  whereabouts, fearing threatened  harm to  his family  if the

truth were told.  He also expressed his apprehension that unnamed

persons were plotting to cut out one of his body organs.   

     Appellant was apprehended when his plane landed in San Juan.

He  had   manifested  nervousness  and  the   customs  officials'

suspicions were  aroused by the  fact that his  passport revealed

exits from  a country less identified  with narcotics trafficking

than Colombia.  The  two suitcases, bearing the claim  numbers on

his ticket, emitted a chemical odor; when samples of the suitcase

material  were tested,  they  revealed the  presence of  cocaine.

Appellant, a  22-year-old student,  whose earnings  in connection

with his father's bar approached $13 a month, was found with cash

and records of expenditure totalling over $4,000.

     The most important  guide to note is  that the jury was  not

obligated to believe appellant's testimony.It   could  disbelieve

part or all of it.  It also could conclude that  the picture of a

young man going without  information as to what he  was carrying,

whom he had  met, precisely where he was to go  or whom he was to

see upon arrival  in Madrid, possessed  of two excessively  heavy

suitcases, smelling of chemicals though purportedly carrying only

clothes  and a substantial amount  of cash, was  an unlikely one.

As we said in a similar case involving an air  passenger en route

from Colombia to  Madrid with cocaine-impregnated  suitcases, "We

cannot say that  a reasonable juror could not reason in this way;
                                             

or  that  such a  juror must  have a  reasonable doubt  about the
                            

conclusion."  United States v. Mahecha-Onofre, 936  F.2d 623, 624
                                             

(1st Cir. 1991) (emphasis in original).

                               -3-

                       B. Expert Testimony

     Appellant also  challenges the  testimony of a  U.S. Customs

chemist, who had been  qualified as an expert, and  who testified

about  the tests  he  had made  on  material extracted  from  the

suitcases.   The grounds for challenge are that the testimony was

misleading  and confusing  as  to  the  presence  and  amount  of

controlled substance, and that the testing  technique used by the

witness was not trustworthy.  The witness possessed a B.S. degree

in chemistry from the  University of Puerto Rico, had  done three

years  of graduate  work, and  had spent  five years  in training

activity while  on the job.  He had performed hundreds of tests a

year, and had  been qualified as an expert in  a number of cases.

He  testified  that  he had  had  experience  on  only two  prior

occasions with drug-impregnated luggage  but had through  reading

known how to conduct accurate testing.  

     At  the  end  of  cross examination  as  to  qualifications,

defendant's  trial  counsel  said,  "That's   all,  your  Honor."

Whereupon the court allowed  examination to proceed.  At  the end

of  cross examination directed at  the testing and  at the method

used  in extrapolating  the percentage  of cocaine  found in  the

samples to determine the amount present in the suitcases, counsel

simply  stated  that she  had no  more  questions.   No objection

having  been  made  at any  time  to  the  qualifications of  the

witness, the  method or the results of testing, appellant's heavy

burden  is to demonstrate plain error to the extent that manifest

injustice will result if  the judgment is allowed to  stand.  The

                               -4-

record   does  not   allow   appellant  to   carry  this   burden

successfully.    It  makes  clear that  although  the  method  of

concealing cocaine by impregnating  suitcase liners with the drug

may be  novel, the technique of  sampling, determining percentage

of  the drug in the  samples, and extrapolating  to ascertain the

total  amount   of  contraband  in  the  two  suitcases  was  not

particularly novel or exotic.   The specific half dozen  tests to

which the  samples were  subjected to determine  the presence  of

cocaine  base, such  as  ultraviolet  spectrophotometric and  gas

chromatography tests,  have been widely accepted.   The method of

determining the  quantity of  cocaine base  contained in  the two

suitcases  was  explained  carefully   and  at  length,  with  no

suggestion  that the method was novel.  Moreover, for purposes of

sentencing, the court used an amount less than  one third of that

extrapolated by the witness.

     In his pro  se reply brief, appellant has cited  a number of

cases, such as  Turpin v. Merrell Dow Pharmaceuticals,  Inc., 959
                                                            

F.2d 1349, 1352 (6th Cir. 1992) (involving the proof of causation

of  Bendectin  birth  defects),  where the  state  of  scientific

studies, literature, and  opinion is in such  turmoil that courts

bring  to  bear  "close  judicial analysis"  of  proposed  expert

testimony.  There is nothing in this record to place this case in

the company of those at the cutting edge of scientific inquiry.

                         C. Other Issues

     Appellant was allowed to  file supplemental and reply briefs

raising  additional issues.  None  of these was  preserved in the

                               -5-

trial  court.  Our consideration of them is therefore limited; we

review only to  prevent a  serious miscarriage of  justice.   See
                                                                 

United  States v. Newman,  No. 91-2303, slip op.  at 15 (1st Cir.
                        

Dec. 31, 1992).

     1.  The  fact  that  the  indictment  charged an  amount  of

contraband (10.9 kilograms of  cocaine) greatly in excess of  the

amount proven  (1,547 grams of cocaine  base) is not  a basis for

reversal.   The discrepancy between charge and proof did not mean

that a  different or an additional offense  had been proven.  The

petit jury  operated under  proper instructions for  weighing the

evidence and in fact acquitted on Count I (charging possession of

a  large enough  amount  to indicate  an  intent to  distribute),

showing  that  it  was not  misled  into  thinking  that over  10

kilograms of cocaine were involved.

     2. The  same observation disposes of  appellant's contention

that Count III could not stand without Count I. 

     3. The fact  that the indictment charged that  the defendant

"knowingly and  willfully"  committed the  offenses, whereas  the

statutes  contained no  such requirements,  could only  help, not

hurt, defendant.  

     4. Appellant's  concern over  the possibility that  Count II

(21  U.S.C.   952(a)) and Count III  (21 U.S.C.   955) charge the

same  crime  and thus  violate  the  proscription against  double

jeopardy  has  been  specifically   addressed  by  us  and  found

unjustified in  United States v. Franchi-Forlando,  838 F.2d 585,
                                                 

589-591 (1st Cir. 1988).  5.  Appellant  claims  that  the  court

                               -6-

should have  given an  instruction  on the  possibility that  his

actions were attributable to  duress.  There having been  no such

request, we would need a much more persuasive record to fault the

judge for not including an instruction on his own initiative.  

     6. Appellant asserts error in sentencing by arguing that the

controlled substance  involved was not cocaine  base but cocaine,

or at least that there is uncertainty over this point.  But it is

clear that the chemist identified it as cocaine base, without any

objection by  defense counsel,  and without  any evidence  to the

contrary.   Indeed,  the  chemist was  subjected to  considerable

questioning  regarding  the  distinctions  between   cocaine  and

cocaine base.

     7. Appellant also argues for a downward departure because of

duress, and for an additional downward departure because of 

his  asserted minimal  role  as a  mere  "mule."   As  an initial

matter, we note that we lack appellate jurisdiction to consider a

request  for downward  departure.   See,  e.g., United  States v.
                                                              

Amparo, 961  F.2d 288,  292 (1st  Cir. 1992).   This argument  is
      

equally unavailing  on the  merits.   What the  court did  was to

assume an amount  (500 grams)  well below what  the chemist  felt

certain was proven (1,547 grams); this established a base offense

level of 36.   The court then  granted a two-point reduction  for

minor participation and another two-point reduction for accepting

responsibility.   This  produced  a total  offense  level of  32,

which, for a  defendant with  a Criminal History  Category of  I,

called for  a sentence within  the range of  121 and 155  months.

                               -7-

The court imposed a sentence of 121 months. It  noted  that   the

mandatory minimum sentence was 10 years, or 120 months.  Not only

is the  support for further  downward departures  for duress  and

minimal  role nonexistent, therefore,  but the  mandatory minimum

floor is an impassable barrier to any further meaningful relief.

     The judgments  of conviction are not  attributable to errors

of either court or counsel, but must be 

     AFFIRMED.    

                               -8-
