
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2299                                    UNITED STATES,                                      Appellee,                                          v.                                  DESMOND JADUSINGH,                                Defendant, Appellant.                                 ____________________        No. 92-2404                                    UNITED STATES,                                      Appellee,                                          v.                                   KAREN WHITAKER,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Rachel Brill  with whom Benicio  Sanchez Rivera was  on brief  for            ____________            _______________________        appellant Jadusingh.            Luz M. Rios Rosario for appellant Whitaker.            ___________________            Desmond Jadusingh pro se.            _________________            Jeanette  Mercado  Rios, Assistant  United  States Attorney,  with            _______________________        whom  Charles  E.  Fitzwilliam,  United States  Attorney  and  Jose A.              ________________________                                 _______        Quiles-Espinosa,   Senior  Litigation  Counsel,   were  on  brief  for        _______________        appellee.                                 ____________________                                   January 4, 1994                                 ____________________                      STAHL,  Circuit  Judge.   After  a  three-day  jury                              ______________            trial,  defendants-appellants  Desmond  Jadusingh  and  Karen            Whitaker were convicted of conspiring to import approximately            two kilograms  of cocaine into  the customs territory  of the            United  States in  violation of  21  U.S.C.     952 and  963.            Appellants  also were convicted of conspiring to possess with            intent to  distribute  the same  cocaine in  violation of  21            U.S.C.    841(a)(1) and 846.  On appeal, both raise a host of            challenges  to  their  convictions.   Finding  no  reversible            error, we affirm.                                          I.                                          I.                                          __                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND                                  __________________                      Because defendants challenge the sufficiency of the            evidence  to  support  their convictions,  we  summarize  the            evidence in the light most favorable to the government.  See,                                                                     ___            e.g.,  United States v.  Mena-Robles, 4 F.3d  1026, 1029 (1st            ____   _____________     ___________            Cir.  1993).   Donna Marie  Carr  is the  mother of  Kimberly            Miller.   In  the  summer  of 1991,  Carr  was approached  by            Miller's   boyfriend,  Desmond   Jadusingh,   and  asked   to            participate  in  an  international  drug  smuggling  venture.            Jadusingh wanted  Carr to  travel  with two  couriers he  had            recruited,  Miller and  Karen Whitaker,  so  that Carr  could            learn the operation and step  in if either Miller or Whitaker            backed out.  The trip was planned for January 1992.                                            -2-                                          2                      As the date of departure drew near, Carr approached            Pittsfield,  Massachusetts,  police officer  Timothy  Surrell            about the venture.   He, in  turn, alerted the  Massachusetts            Drug  Enforcement Agency ("MDEA")  and arranged for  two MDEA            agents  to join  him  in  a meeting  with  Carr.   The  group            gathered  at a local restaurant,  where Carr told Surrell and            the agents that she would  be meeting with Jadusingh later in            the day to finalize the arrangements.  Fearing that she would            not  remember  all  of  the  anticipated  conversation,  Carr            volunteered to  wear a  concealed wire to  the rendezvous  at            Jadusingh  and  Miller's  apartment.    That  evening,   Carr            recorded  a  conversation in  which  Jadusingh, Whitaker  and            Miller  discussed their  plans to  travel to  Puerto Rico  to            purchase and import two kilograms of cocaine.  Meanwhile, DEA            agents and local police, in a nearby parking lot, listened to            the live transmission of the conversation.                       Two days  later, on  January 16,  1992, Carr  drove            Jadusingh, Whitaker and Miller from Pittsfield to Jadusingh's            house  on Long  Island, New  York,  where Jadusingh  gathered            money  and clothing  for the  trip.   The following  morning,            Jadusingh's brother  drove all four to  Kennedy International            Airport, where  they boarded a  plane for Puerto Rico.   Upon            arrival, the  group, under  surveillance by  officers of  the            federal Drug Enforcement Administration  ("DEA"), traveled to            the Holiday  Inn Crown Plaza  in Carolina, Puerto Rico.   All                                         -3-                                          3            three of  the women stayed  in room 519 while  Jadusingh, who            wanted to  keep his distance  from the women, stayed  in room            309, which was  registered to a Karen Bailey.1   Whitaker and            Carr were instructed by Jadusingh  not to mention his name in            public and to contact him only  by phone.  They were provided            a telephone  credit card  number to  charge calls as  needed.            For  the most part,  Jadusingh rationed out  instructions and            money through Miller on an as-needed basis.  He also demanded            receipts for all expenses.                      Shortly  after arriving in  Puerto Rico,  the group            was informed  by its drug  contact, Etlyn, that there  was an            unexpected change of plans.  Jadusingh's cocaine had not been            unloaded in  Puerto Rico  as expected, and  would have  to be            picked up  in Curacao.2   While Jadusingh remained  in Puerto            Rico, the three women,  accompanied by surveilling undercover            DEA agents, traveled to Curacao to pick up the cocaine.  Once            there,  Miller  met with  a  man  known  only as  Junior  and            exchanged $5800  of Jadusingh's money  for approximately  two            kilograms of  cocaine.  In  an attempt to compensate  for the            unplanned detour, Junior promised an additional two kilograms            of cocaine  and instructed  the  women to  change hotels  and            await delivery.                                            ____________________            1.  Karen Whitaker is also known as Karen Bailey.            2.  Curacao is the  main island of the  Netherlands Antilles,            off the northwest coast of Venezuela.                                         -4-                                          4                      Meanwhile,  Miller  and  Whitaker  purchased  razor            blades, plastic baggies, tape and  girdles.  With the help of            Carr, the two women divided and packed the cocaine  according            to  Jadusingh's instructions.  Jadusingh, who was in frequent            phone  contact with his couriers, directed  them to bring the            cocaine back  to the United  States by way of  St. Martin and            St.  Thomas.    According  to  Jadusingh,  smuggling  cocaine            through customs in St. Thomas was easier than through customs            in  Puerto Rico.  When Jadusingh subsequently discovered that            he could not  fly to St. Thomas without  a passport, however,            he told the women to abandon Junior's additional delivery and            return immediately to the Holiday Inn in Puerto Rico.                       On  January 23, 1992, Miller and Whitaker taped the            baggies  containing the cocaine to their stomachs and further            secured the contraband with the girdles.  Together with Carr,            they boarded  a plane  bound for Aruba.   After  spending the            night in Aruba, Miller and Whitaker again secured the cocaine            to  their  bodies  and  boarded  a  plane  for  Puerto  Rico.            Meanwhile,  at Puerto  Rico's Luis Munoz  Marin International            Airport, Senior Customs Inspector Sonia Maldonado was alerted            by DEA agents  that two persons would be  arriving from Aruba            with  contraband.     Maldonado,  who  was  not   told  which            passengers  would be carrying the drugs, became suspicious of            Whitaker  and Miller because  they were wearing  bulky winter            jackets on what she described  as a particularly hot day.   A                                         -5-                                          5            personal search  of Whitaker  by Maldonado and  of Miller  by            Senior   Customs    Inspector   Maria    Esquilin   uncovered            approximately two kilograms of a concealed white powder which            was field tested  and found to be cocaine.   After completing            the  search, Maldonado delivered  Whitaker to DEA  agent Eric            Johnson.   Jadusingh was  arrested at  the Holiday Inn  later            that day.                       On February 5, 1992,  a grand jury returned a  two-            count  indictment  against  Jadusingh,  Miller and  Whitaker.            Count  one charged the  defendants with conspiracy  to import            cocaine from  Aruba to the  United States in violation  of 21            U.S.C.    952 and 963.  Count two charged the defendants with            conspiracy  to possess  with intent  to  distribute the  same            cocaine in violation of 21 U.S.C.    841(a)(1)  and 846.  The            defendants pled not  guilty at their arraignment.   Jadusingh            and Whitaker were tried without Miller, who  fled after being            released on bail and was later arrested and tried separately.            Carr   was  the  government's  lead  witness  at  the  trial.            Jadusingh  and  Whitaker were  convicted  on both  conspiracy            counts.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      On   appeal,   Jadusingh  and   Whitaker   together            primarily argue:  (1) the  court erred in allowing Donna Carr            to testify; (2) the court impermissibly admitted an audiotape                                         -6-                                          6            into evidence;  and  (3) the  court  erred in  denying  their            respective  Rule  29  motions  for   acquittal.3    Jadusingh            further  contends  1)  that  the  district  court  improperly            enhanced his sentence,  and  2) that he  was denied effective            assistance of counsel.4  We discuss each argument in turn.                 A.  Donna Carr                 A.  Donna Carr                 ______________                      Jadusingh  and  Whitaker  argue that  the  district            court  erred   in  allowing  Donna  Carr,   the  government's            confidential  informant   and  lead   witness,  to   testify.            Specifically,  the defendants claim (1) that the court should            have excluded Carr's testimony because the government  failed            to disclose Carr's criminal history in violation of Brady  v.                                                                _________            Maryland, 373  U.S. 83 (1963);  and (2) that the  trial judge            ________            precluded  Jadusingh's   attorney  from   effectively  cross-            examining  Carr.   We  find  both of  these  arguments to  be            without merit.                      1.  Brady Violations                      1.  Brady Violations                      ____________________                      In  Brady,   the  Supreme  Court   held  that  "the                          _____            suppression  by the prosecution  of evidence favorable  to an            accused  upon request violates due process where the evidence            is material either to guilt or to punishment, irrespective of                                            ____________________            3.  Pursuant to Fed. R.  Crim. P. 29, "The court on motion of            a defendant  or of its  own motion  shall order the  entry of            judgment of acquittal  . . . if the  evidence is insufficient            to sustain a conviction . . . ."            4.  Jadusingh  makes his  ineffective  assistance of  counsel            claim in a supplemental brief he filed pro se.                                                   ___ __                                         -7-                                          7            the good faith or bad faith of the prosecution."  Id.  at 87.                                                              ___            The purpose of the Brady rule is "to prohibit the prosecution                               _____            from  intentionally  withholding `evidence  favorable  to the            accused that, if suppressed, would deprive the defendant of a            fair trail.'"   United  States v.  Valencia-Lucena, 925  F.2d                            ______________     _______________            506, 514 (1st Cir. 1991)(quoting United States v. Bagley, 473                                             _____________    ______            U.S. 667, 675 (1985)).  The rule is not, however, intended to            "`displace the adversary system as the primary means by which            truth is uncovered.'"  Id. (quoting Bagley, 473 U.S. at 675).                                   ___          ______                      Here, there was  no Brady violation.   Although the                                          _____            government  did not  disclose  Carr's 1978  misdemeanor  drug            conviction until  just before the  start of the first  day of            trial, it is uncontested that the government did not actually            learn of  this conviction until  that same  day.5   Moreover,            Carr's  other past  substance abuse  and outstanding  traffic            violations  were fully disclosed during the direct and cross-            examination of Carr at trial.   Given this full disclosure of            Carr's  background by  the government,  we are  at a  loss to            comprehend defendant's argument that the government committed            a Brady  violation.6  See  id. at 514 (government  failure to              _____               ___  ___                                            ____________________            5.  We  further note that  defendants, although knowing about            the 1978 conviction, did not raise it at trial.              6.  Jadusingh  and Whitaker  also  cursorily  argue that  the            government  knowingly allowed Carr to present false testimony            to the jury.  See United States v. Wallach, 935 F.2d  445 (2d                          ___ _____________    _______            Cir.  1991)(reversing conviction  where government  knowingly            allowed star witness  to perjure himself).   Having carefully            reviewed  all of  the  alleged  "inconsistencies" adduced  in                                         -8-                                          8            turn over evidence  of confidential informant's drug  use was            not Brady violation where issue was fully revealed at trial).                _____                      2.  Cross Examination                      2.  Cross Examination                      _____________________                      Jadusingh next argues that the trial judge unfairly            limited  the scope  of  his cross-examination  of  Carr.   In            support  of this argument, however, Jadusingh offers only the            following colloquy between his lawyer and Carr:                           Q.  After 1985 how many warrants for                               your arrest did you have?                           A.  Five.                           Q.  You had five arrest warrants                                pending, you never have stated that?                [Government]:  Objection, Your Honor.                   The Court:  Sustained.            After the  trial court sustained the  government's objection,            Jadusingh's  attorney  neither attempted  to  reformulate his            query, nor asked  the trial judge for a  clarification of his            ruling.     Instead,  the   attorney  wholly  abandoned  this            particular line  of questioning of  Carr, and moved on  to an            unrelated topic.                      When challenging  an exclusionary  ruling like  the            one  before us,  the  aggrieved  party must  show  1) that  a            substantial right was affected, and 2) that the "substance of            the evidence [sought to be  introduced] was made known to the            court by offer or was  apparent from the context within which                                            ____________________            support of this argument, however, we find it to be baseless.                                         -9-                                          9            questions were asked."   Fed. R. Evid.  103 (a) (2).   In the            absence of  this minimal  showing, our  review is  limited to            "plain error." Fed. R. Evid. 103(d).  In  order to show plain            error, the  complaining party must  demonstrate "that justice            has miscarried  or that the  trial's basic fairness  has been            compromised."   United States v.  Hadfield, 918 F.2d 987, 995                            _____________     ________            (1st Cir.  1990), cert. denied, 111  S. Ct. 2062  (1991).  We                              _____ ______            find no such error here.                      We  begin  by  noting that  the  question  posed by            Jadusingh's  counsel at trial related solely to Carr's arrest            warrants  after  1985.    The only  evidence  in  the  record                      _____            regarding Carr's criminal history for this time period is her            testimony  on direct examination that she had pending traffic            violations.   Nothing in  the record remotely  intimates that            further  cross-examination   on  this   subject  would   have            uncovered evidence of other wrong-doing  on the part of  Carr            or  would have  been  of any  value  to Jadusingh.   Nor  has            Jadusingh offered any  information on appeal tending  to show            that further cross-examination on this subject was warranted.                      Further,  it is not  apparent from the  record that            the   district  court   intended   to  restrict   Jadusingh's            substantive  inquiry into Carr's outstanding warrants.  It is            equally  plausible  that  the  government  objected   to  the            argumentative tone of the question.  Thus, we cannot say that                                         -10-                                          10            the  fairness  of  Jadusingh's  trial  was  affected  by  the            district court's restriction of Jadusingh's cross-examination            of Carr.7                 B.  Admission of Tape Recording                 B.  Admission of Tape Recording                 _______________________________                      Jadusingh and Whitaker next argue that it was error            for  the court to permit the  jury to listen to the audiotape            of the meeting  between Carr, Jadusingh, Whitaker  and Miller            at  Jadusingh and  Miller's  apartment.   In  so doing,  they            contend that the  trial court should  have excluded the  tape            because it was  inaudible.  Jadusingh further argues  that he            was prejudiced by the prosecutor's reference to the substance            of the tape in her closing remarks.  We disagree.                      1.  Audibility and Admission of the Tape                      1.  Audibility and Admission of the Tape                      ________________________________________                      The decision to admit or exclude an audiotape rests            with the trial judge, who must decide "whether `the inaudible            parts are  so substantial as to  make the rest [of  the tape]            more  misleading  than  helpful.'"   United  States  v. Font-                                                 ______________     _____                                            ____________________            7.  Jadusingh also  charges that the district  court's ruling            violated his right to confront Carr in violation of the Sixth            Amendment.   We fail  to see the  merit of this  argument.  A            criminal  defendant's  Sixth  Amendment   right  to  confront            witnesses  against  him/her is  not  absolute.   It  may,  of            course, be  violated when  the defendant  is prohibited  from            engaging  in  cross-examination  which   is  not  repetitive,            harassing  or otherwise improper, but, rather, is designed to            show a "prototypical form  of bias on the part of the witness            and  thereby  to  expose  to  the  jury  information  on  the            witness's  reliability."  United  States v. Osorio,  929 F.2d                                      ______________    ______            753,  759 (1st  Cir.  1991).   Here,  the  question posed  by            Jadusingh's   counsel  was   argumentative  and,   therefore,            properly  excluded as improper cross-examination.  See id. at                                                               ___ ___            760.                                          -11-                                          11            Ramirez,  944 F.2d  42, 47  (1st  Cir. 1991)  (quoting United            _______                                                ______            States v.  Carbone, 798 F.2d  21, 24 (1st Cir.  1986)), cert.            ______     _______                                      _____            denied, 112 S. Ct.  954 (1992).  As we have  held on numerous            ______            occasions,  a  trial  judge's  ruling  on  the  admission  of            recordings  is   afforded  "broad  discretion,"   even  where            portions  of the taped conversation are unintelligible.  See,                                                                     ___            e.g., Font-Ramirez, 944 F.2d at 47.             ____  ____________                      We have  listened to the tape and conclude that the            district court acted within its discretion in ruling that the            tape as  a  whole  was  not  more  misleading  than  helpful.            Although much of  what Jadusingh and Whitaker  say is drowned            out by intermittent television noise, Carr's words are easily            understandable as she  repeatedly paraphrases statements made            by  each  defendant  to  his  or  her  discernable  approval.            Furthermore, Carr's audible questions regarding money, travel            arrangements and customs  are addressed to, and  answered by,            Jadusingh,  thereby  corroborating  much  of  Carr's   direct            testimony  that Jadusingh  was  in  control  of  the  overall            venture.  See  id.  We therefore affirm  the district court's                      ___  ___            admission of this tape.8                                            ____________________            8.  Jadusingh  also argues  that the  tape  should have  been            excluded because  the government  neither provided  a written            transcript nor  established a  chain of custody.   As  to the            first  of  these   arguments,  it  is  established   that  "a            transcript  is  not  a  prerequisite  for  the  admission  of            recorded conversations."   United States v. Panzardi-Lespier,                                       _____________    ________________            918  F.2d  313,  319 (1st  Cir.  1990).    As to  the  second            argument, we  agree with  the Second  Circuit that,  once the            government  has established  both authenticity  and accuracy,                                         -12-                                          12                      2.  Prosecutorial Misconduct                      2.  Prosecutorial Misconduct                      ____________________________                      Jadusingh  argues  that he  was  prejudiced  by the            prosecutor's  substantive reference to  the audiotape  in her            closing  remarks.   More  specifically, Jadusingh  objects to            references made by the prosecutor to the jury that statements            allegedly made by  Jadusingh were audible  and that the  jury            would  be  able  to  hear  Jadusingh  "speaking  about  being            watchful  for dogs  that would  be sniffing" at  the airport.            Jadusingh, however,  failed to  object to  this reference  at            trial  so,  once again,  we  review  for  plain error.    See                                                                      ___            Hadfield, 918 F.2d at 995.              ________                      Even if  we were  to assume  that the  prosecutor's            reference to the tape was  erroneous, the reference would not            constitute plain  error.    First  of all,  the  trial  court            provided  the jury with a limiting instruction directing them                                            ____________________            sufficient  foundation has been laid for the tape's admission            without  proof of  chain-of-custody.  See  United  States  v.                                                  ___  ______________            Steinberg,  551 F.2d 510,  515 (2d Cir. 1977).   We note that            _________            the government, through Carr, properly authenticated the tape            and identified the voices.  See Font-Ramirez, 944 F.2d at 47.                                        ___ ____________                 Whitaker argues  that the  court erred  in allowing  the            jury  to listen  to the  tape because  it was  never formally            moved into evidence.  Because  Whitaker failed to raise  this            objection  below, we  review this  argument  under a  plainly            erroneous standard.  See  United States v. Brennan, 994  F.2d                                 ___  _____________    _______            918,  925  (1st  Cir.   1993).    We  fail  to  see  how  the            government's  failure to move the tape formally into evidence            affected  the fundamental fairness of the  trial where 1) the            government  provided the proper foundation to admit the tape,            2) the trial  court ruled that the government  could play the            tape for the jury, and 3) the tape was docketed as Government            Exhibit 17.  We therefore reject this argument.                                           -13-                                          13            to  disregard inaudible portions of the tape.  Moreover, Carr            testified,  independently of the tape, that Jadusingh had, in            fact,  warned  Carr,  Whitaker and  Miller  of  customs dogs.            Thus, the  very evidence which  Jadusingh now objects  to had            been   presented  to  the  jury  by  an  independent  source.            Finally,  an independent review persuades us that evidence of            the dog warnings forms a very small and inconsequential piece            of  the   overall   evidence   which   supports   Jadusingh's            conviction.    Accordingly, we  find  no plain  error  in the            government's reference to Jadusingh's inaudible statements on            the tape.                 C.  Sufficiency of the Evidence of Conspiracy                 C.  Sufficiency of the Evidence of Conspiracy                 _____________________________________________                        Both Jadusingh  and Whitaker argue that there was            insufficient  evidence  to  support  their  convictions   for            conspiring  to import  cocaine into  the  United States  from            Aruba  in  violation  of  21  U.S.C.     952  and  963,9  and            conspiring  to possess  with intent  to  distribute the  same                                            ____________________            9.  21 U.S.C.   952 provides  in relevant part that it "shall            be  unlawful  to import  into  the customs  territory  of the            United  States from  any  place  outside thereof  .  . .  [a]            controlled  substance . .  . ."   Under 21 U.S.C.    963, any            person who  conspires to  commit the  crime above, "shall  be            subject to  the same  penalties as  those prescribed  for the            offense."                                         -14-                                          14            cocaine in  violation of  21 U.S.C.     841(a)(1) and  846.10            This argument need not detain us long.                       When  reviewing  a  sufficiency   of  the  evidence            challenge,   we  examine  the  evidence  in  the  light  most            favorable  to the government and affirm convictions where any            rational juror  could have  found guilt  beyond a  reasonable            doubt.  See United States  v. Vavlitis, No. 93-1229, slip op.                    ___ _____________     ________            at  15 (1st  Cir.  Nov. 19,  1993).   Conspiracy  convictions            require proof that  the defendants entered into  an agreement            with one  another to  commit a crime.   See United  States v.                                                    ___ ______________            Concemi, 957 F.2d 942, 950 (1st Cir. 1992).  We note that the            _______            government   may  satisfy   this  burden  by   direct  and/or            circumstantial evidence.  Valencia-Lucena, 925 F.2d at 512.                                      _______________                      Given that  the admission  of Carr's  testimony and            the audiotape was not  erroneous, Jadusingh's contention that            the  government  failed  to  produce evidence  sufficient  to            support his convictions is meritless.  There is a plethora of            direct  evidence  in  the record  showing  that  Jadusingh 1)            planned  the trip  to import  the  cocaine, 2)  recruited and            controlled Carr,  Whitaker and  Miller, and  3) provided  the            travel  money  and   the  funds  to  purchase   the  cocaine.                                            ____________________            10.  21 U.S.C.   841(a)(1) provides in relevant part that "it            shall  be unlawful for any person knowingly or intentionally"            to "possess  with  intent  to  .  . .  distribute  .  .  .  a            controlled substance."  Under 21 U.S.C.   846, any person who            conspires  to commit the  offense described above,  "shall be            subject to  the same  penalties as  those prescribed  for the            offense."                                         -15-                                          15            Moreover, DEA  agents observed Jadusingh traveling  to Puerto            Rico.     They  listened  in   on  at  least   one  telephone            conversation between Jadusingh and Carr while  Carr, Whitaker            and Miller were in Curacao.  And they also observed Jadusingh            attempting  to   purchase   an   airplane   ticket,   thereby            corroborating Carr's  testimony that Jadusingh wanted to meet            the women in St. Thomas.  Moreover, additional evidence shows            that Jadusingh promised to pay the women $1000 each for their            efforts and that the women were instructed to deliver cocaine            valued at  over  three hundred  thousand  dollars  ($300,000)            wholesale to Jadusingh.   Thus, the evidence  produced by the            government  supports a reasonable inference that Jadusingh 1)            agreed  with  Whitaker  and  Miller  to  commit  the  charged            offenses;  2)  had  constructive possession  of  cocaine;  3)            intended  to distribute  the cocaine,  see  United States  v.                                                   ___  _____________            Vargas,  945 F.2d 426,  428-29 (1st Cir.  1991) (holding that            ______            one kilogram of  cocaine was "large enough to  support a fair            jury inference that it  was not intended merely  for personal            consumption"),  and 4) controlled those who actually imported            the cocaine into the United States from Aruba.                       Whitaker's sufficiency argument is  based mainly on            her claim that the Customs  Inspector who searched her at the            Marin  Airport  in  San  Juan  could  not  identify   her  at                                         -16-                                          16            trial.11   We  fail to  discern any  merit in  this argument.            Whitaker  was identified  in  court  by Carr  as  one of  the            coconspirators  who  planned  the  trip,  handled the  money,            divided up  the cocaine,  and attempted  to smuggle  the drug            into  the  United  States  from  Aruba.    Whitaker also  was            identified  in court  by  DEA  agent  Johnson,  who  received            custody of Whitaker from Maldonado  at the airport, as one of            two women  who were apprehended deplaning a flight from Aruba            with cocaine strapped to their stomachs.    In  light  of the            abundance of  evidence  supporting the  convictions  of  both            Jadusingh  and Whitaker, we  decline the invitation  to upset            the jury's findings  of their respective  guilt as to  either            count.                 D.  Sentencing Enhancements                 D.  Sentencing Enhancements                 ___________________________                      Jadusingh contends that the  evidence presented was            insufficient to uphold the trial court's two-level sentencing            enhancement   for    his   organizational    role   in    the            conspiracy.12  Again, we disagree.                                             ____________________            11.  Whitaker also argues at length that Carr was untruthful.            On  appeal,  it is  not  within  our  purview to  assess  the            credibility  of  trial witnesses.   See  Valencia-Lucena, 925                                                ___  _______________            F.2d at 512.            12.  Under  U.S.S.G.   3B1.1, a sentencing judge may increase            a base offense level by two if the crime involved two or more            people  and the defendant "was an organizer, leader, manager,            or  supervisor" of  the  criminal activity.    Factors to  be            considered   include  "the   exercise   of  decision   making            authority, the nature  of participation in the  commission of            the offense,  the  recruitment of  accomplices,  the  claimed            right  to a  larger share  of the  fruits of  the crime,  the                                         -17-                                          17                      An   enhancement   under   U.S.S.G.      3B1.1   is            appropriate  if  the  government  has demonstrated  that  the            defendant "`exercised  some  degree of  control  over  others            involved in the commission of  the crime.'"  United States v.                                                         _____________            De La  Cruz, 996 F.2d  1307, 1315  (1st Cir.)(quoting  United            ___________                                            ______            States  v.  Fuller, 897  F.2d  1217 (1st  Cir.  1990)), cert.            ______      ______                                      _____            denied, 114 S. Ct. 356 (1993).  We review role-in-the-offense            ______            rulings for clear  error.  United States v.  Cronin, 990 F.2d                                       _____________     ______            663, 665 (1st Cir. 1993).                      Here,  the sentencing judge  based his  decision to            enhance  Jadusingh's  sentence  upon a  reading  of  the pre-            sentence  report,  and his  notes  from, and  memory  of, the            trial.  The district judge  was afforded ample opportunity to            ascertain  the credibility of Donna Carr  as she testified to            Jadusingh's  control over the drug  operation.  The record is            replete with testimony  from Carr that Jadusingh  planned and            financed the trips to Puerto  Rico and Curacao.  According to            Carr, Jadusingh directed the women's actions.  He showed them            1) how to divide up and package the cocaine, 2) how  to strap            it to their bodies, and 3) how to avoid detection at customs.            Jadusingh also provided the money to pay for the trip and the            drugs.    This  evidence  clearly  supports  a  finding  that                                            ____________________            degree  of  participation  in  planning   or  organizing  the            offense, the nature  and scope of  the illegal activity,  and            the degree of  control and authority exercised  over others."            U.S.S.G.   3B1.1, comment. (n.3).                                         -18-                                          18            Jadusingh   was  the   "mastermind   behind  this   offense."            Accordingly, we find no clear error in the trial judge's two-            level enhancement of Jadusingh's sentence.                   E.  Ineffective Assistance of Counsel                 E.  Ineffective Assistance of Counsel                 _____________________________________                      In his supplemental  pro se brief,  Jadusingh urges                                           ___ __            this court to consider his claim of ineffective assistance of            counsel.  Generally, we will  not address such a claim raised            for the  first time  on direct  appeal  unless "the  critical            facts are not in dispute and  a sufficiently developed record            exists."   United States  v. Daniels, 3  F.3d 25,  26-27 (1st                       _____________     _______            Cir.  1993).    The  proper forum  for  factbound  issues  of            ineffective  assistance  of   counsel  is  in   a  collateral            proceeding under 28 U.S.C.   2255.  Id. at 27.                                                  ___                      The record  does not  reflect that  this issue  was            raised below.   Furthermore,  the laundry  list of  counsel's            alleged failures, including the failure to call witnesses, to            voir  dire the  jury, to  request a  severance and  to strike            apparent   contradictory  statements   of  the   government's            confidential   informant,  are   sufficiently  factbound   to            preclude  our  review on  the  record  before  us.   See  id.                                                                 ___  ___            Accordingly, we decline the invitation to review this claim.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                                         -19-                                          19                      The judgment  below is affirmed,  without prejudice            to  defendant  Jadusingh's right  to  pursue  his ineffective            assistance  of counsel claim in a collateral proceeding under            28 U.S.C.   2255.                      Affirmed.                      _________                                         -20-                                          20
