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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-2084 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      CRUZ ROSARIO-PERALTA, <br>                 A/K/A CRESCENCIO CEDEO-PERALTA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2085 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                     JOHNNY DAVID DIAZ-MORLA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2086 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      RAMON ANTONIO JAVIER, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________

                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Coffin, Senior Circuit Judge, <br> <br>                    and Selya, Circuit Judge. <br>                                  <br>                      _____________________ <br> <br>    Jorge A. Toro McGowan for appellant Cruz Rosario-Peralta. <br>    Benjamn Angueira-Aguirre for appellant Johnny Daz-Morla. <br>    Zygmunt G. Slominski, by appointment of Court, for appellant <br>Ramn Antonio Javier. <br>    Michelle Morales, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, and Nelson Prez-Sosa, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                        December 23, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  Defendants Cruz Rosario-Peralta, <br>Johnny David Daz-Morla, and Ramn Antonio Javier appeal their <br>convictions and sentences for possession with intent to distribute <br>cocaine while on the high seas.  We addressed portions of these <br>appeals in our previous decision, United States v. Rosario-Peralta, <br>175 F.3d 48 (1st Cir. 1999).  In that opinion, we rejected <br>defendants' challenge to the sufficiency of the evidence, but we <br>found ourselves unable to properly assess defendants' claims of <br>discovery violations on the existing record.  Thus, we retained <br>jurisdiction of the case and remanded to the district court for the <br>resolution of several discovery issues.  On August 27, 1999, the <br>district court issued its findings in response to our instructions.  <br>Having received supplemental briefing from the parties, we now <br>resume our consideration of the remaining issues on appeal. <br>                            BACKGROUND <br>  We outlined the facts of this case at length in our <br>previous decision, see Rosario-Peralta, 175 F.3d at 50-51, and we <br>see no reason to repeat that entire account here.  Nevertheless, a <br>very brief review, focused on the facts relevant to today's <br>decision, will set the factual context for our current discussion. <br>  At approximately 1:11 a.m. on October 17, 1996, a United <br>States Customs Service aircraft spotted a vessel heading towards <br>Puerto Rico without any lights.  After monitoring the suspect <br>vessel for almost two hours, with the assistance of a United States <br>Army National Guard helicopter, the government agents illuminated <br>the suspect vessel and spotted its crew dumping bales, which later <br>proved to contain cocaine, into the ocean.  At trial, there was <br>testimony, contested by defendants, that the helicopter remained <br>over the suspect vessel and continued to illuminate it until it was <br>intercepted.  When a Customs vessel arrived on the scene and <br>identified itself, defendants' vessel accelerated until the Customs <br>vessel rammed it from astern.  Defendants Rosario-Peralta and <br>Javier then jumped into the water and refused to allow the Customs <br>crew to retrieve them for several minutes.  Defendant Daz-Morla <br>sped away in the vessel and was caught by a Puerto Rico Police <br>Department vessel.  After waiving their rights and agreeing to <br>speak to the agents, defendants gave conflicting and implausible <br>statements about how they came to be traveling at sea early that <br>morning.  Later, a drug-sniffing canine detected narcotics <br>contamination on defendants' vessel. <br>  Following their convictions, appellants appealed, and we <br>remanded to the district court for findings, as discussed above.  <br>We now consider those findings, as well as appellants' other <br>arguments on appeal. <br>                            DISCUSSION <br>I.  The District Court's Failure to Require the Government to <br>    Disclose Particular Communication Records and Logs <br> <br>  A.  Our Prior Opinion and the District Court's Findings  <br>  In our earlier opinion in this case, we found that the <br>district court abused its discretion if it denied discovery of <br>certain communication records and logs on the ground that they were <br>irrelevant, when the district court had not reviewed the materials.  <br>See Rosario-Peralta, 175 F.3d at 55.  We also recognized the <br>possibility that the district court denied discovery of the logs <br>based on the need for confidentiality, rather than because the logs <br>were irrelevant, and we expressed reluctance to accept the <br>government's stated concern for confidentiality as a basis for <br>denying discovery of the logs.  See id. at 57 n.8.  We observed <br>that, because the district court denied discovery of the logs based <br>on either relevance or the need for confidentiality, the district <br>court did not determine whether the logs were required to be <br>disclosed under Fed. R. Crim. P. 16(a)(1)(C), Brady v. Maryland, <br>373 U.S. 83 (1963), or the Jencks Act, 18 U.S.C.  3500.  See id. <br>at 56. <br>  We then noted that, in an attempt to resolve the  <br>discovery issues on appeal, the government submitted a copy of what <br>it claimed to be the only relevant log: the October 17, 1996 <br>morning log of the United States Command Center Sector for United <br>States Customs ("Sector").  See Rosario-Peralta, 175 F.3d at 56.  <br>We found it inappropriate to review the Sector log or to resolve <br>the remaining discovery issues for the first time on appeal, so we <br>remanded to the district court to perform both tasks.  See id.  We <br>instructed the district court to review the Sector log, as well as <br>any other potentially relevant logs, to determine: (1) whether the <br>logs should have been disclosed under Rule 16, Brady, or the Jencks <br>Act, and (2) if so, whether the government's failure to disclose <br>the logs materially prejudiced the defense.  See id. at 57. <br>  On August 27, 1999, the district court responded with a <br>four-page statement of its findings.  The district court found that <br>the logs at issue were: (1) the San Juan Sector Communication <br>Master Station Log for October 17, 1996; (2) the log for an unnamed <br>land-based agency codenamed "Razorback"; and (3) the log from the <br>Drug Interdiction Operations Center (codenamed "Salty Dog").  The <br>court reviewed these sets of logs and determined that they were <br>required to be disclosed by Rule 16(a)(1)(C) and also as Brady <br>material, but were not discoverable under the Jencks Act.  Finally, <br>the district court found that defendants were not prejudiced by the <br>government's failure to disclose the logs, because the information <br>to which defendants were entitled was made available to them <br>through other means, namely, the reporting data and FLIR videotapes <br>from Omaha 13, Omaha 85, and Hawk 514. <br>  B.  Appellants' Renewed Claims of Discovery Violations <br>  Although appellants agree with the district court's <br>determination that the logs were discoverable under Rule <br>16(a)(1)(C) and also under Brady, they claim that the court erred <br>in finding that all relevant information had been disclosed and <br>that the defendants suffered no prejudice from the nonproduction.  <br>After careful consideration of the parties' supplemental briefs on <br>this issue, we find no reversible error in the district court's <br>ruling. <br>  As a preliminary matter, we emphasize that the <br>government's failure to produce discoverable materials in this case <br>is a serious infraction which we do not condone.  There is no <br>dispute that the prosecution had access to these logs before and <br>during trial.  The sole basis offered by the United States for <br>resisting disclosure is the desire to maintain the secrecy of the <br>logs' code names, an objective that could have been easily and <br>effectively achieved through redaction without depriving the <br>appellants of information to which they were entitled under the <br>Rules of Criminal Procedure and federal case law.  Mindful of the <br>government's error, we will proceed to consider appellants' claims <br>of error by the district court. <br>  Appellants' first contention -- that the district court <br>could not know whether all relevant information was disclosed to <br>them through other means -- is their strongest.  The government's <br>response -- that appellants fail to "pinpoint" any information that <br>was not disclosed -- is clearly inadequate; appellants' very point <br>is that they do not and cannot know what exculpatory information <br>may have been on the logs, and yet the government expects them to <br>identify particular pieces of information to which the government <br>improperly denied them access.  Given the accidental destruction of <br>the Salty Dog log requested by the defense, we are inclined to <br>agree with the appellants that the district court was in a poor <br>position to determine with absolute certainty whether that log <br>contained any discoverable information that was not in fact <br>produced in another form.  However, we do not require "absolute <br>certainty" to support a trial court's determinations on the <br>discoverability of information under the federal rules nor under <br>Brady.  The district court's findings were made with the benefit of <br>written and oral argument from both sides and after the government <br>produced to the appellants and to the court all existing materials <br>that could reasonably have been expected to contain discoverable <br>information relevant to the motion to compel.  Because the <br>appellants have done little more than speculate as to what other <br>information the logs might have contained, we simply cannot hold <br>that the district court abused its discretion in finding that all <br>discoverable information had in fact been produced to the <br>defendants by other means. <br>  Whatever our nagging doubts regarding the completeness of <br>the information produced to appellants by other means, we are in <br>complete agreement with the district court that appellants were not <br>prejudiced by the failure to produce the logs.  The record amply <br>demonstrates that appellants were not impeded in the presentation <br>of their defense, and the substantial other evidence presented at <br>trial was such that the mere possibility of additional exculpatory <br>evidence in the logs is insufficient to call into doubt the <br>fairness of appellants' trial or the verdict reached by the jury. <br>  To succeed on their Rule 16 claim, appellants would have <br>to demonstrate prejudice resulting from the government's <br>nondisclosure.  See United States v. Spinosa, 982 F.2d 620, 630-31 <br>(1st Cir. 1992).  Under Brady, they must demonstrate "a reasonable <br>probability that, had the evidence been disclosed to the defense, <br>the result of the proceeding would have been different."  Gilday v. <br>Callahan, 59 F.3d 257, 267 (1st Cir. 1995) (internal quotations <br>omitted).  Under either standard, the appellants have fallen well <br>short of the mark.  Although we are sympathetic to the difficulty <br>of demonstrating how information might have aided one's case <br>without ever seeing that information (or even knowing that it <br>exists), some showing, albeit imperfect, must be made before an <br>appellate court can reverse the reasoned decision of the trial <br>court, and appellants have offered us nothing of any substance upon <br>which to hang our proverbial hats.  Because the appellants have not <br>demonstrated prejudice from the government's failure to disclose <br>the logs, and in light of the substantial evidence supporting the <br>jury's guilty verdict, we affirm the district court's ruling. <br>II.  The District Court's Interference With the Testimony of <br>     Defendants' Expert <br>  Defendants next argue that the testimony of their expert, <br>Captain Edwin Geary, was rendered ineffective because the district <br>court interfered with his testimony.  Defendants complain that the <br>court: (1) interrupted and clouded Captain Geary's significant <br>findings; (2) questioned his calculations; (3) questioned his <br>testimony regarding hull speed; (4) confused the issues by <br>interrupting his testimony; (5) attempted to bolster or <br>rehabilitate the previous testimony of government witnesses; <br>(6) emphasized points helpful to the prosecution; (7) attacked <br>Captain Geary's credibility; and (8) communicated to the jury that <br>it did not believe the witness.  Defendants complain that the <br>court's interference rose to the level of advocacy and denied them <br>a fair trial by communicating to the jury that the court had taken <br>a side. <br>  The government responds that the district court merely <br>attempted to clarify vague and confusing testimony for its own <br>benefit and the benefit of the jury.  We have stated previously <br>that the trial judge is more than a "mere moderator" in a federal <br>trial and that the trial judge has the prerogative of eliciting <br>facts he deems necessary to the clear presentation of issues.  See <br>United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989).  <br>Thus, the judge "may examine witnesses who testify, so long as he <br>preserves an attitude of impartiality and guards against giving the <br>jury an impression that the court believes the defendant is <br>guilty."  Id. at 400-01 (quoting Llach v. United States, 739 F.2d <br>1322, 1329-30 (8th Cir. 1984)).  In Paz Uribe, we found that <br>testimony presented by the defendant was confusing and that the <br>district court acted appropriately in attempting to clarify the <br>testimony.  See id. at 401. <br>  Similarly, we find here that the district court <br>appropriately questioned the defense expert, while managing to <br>preserve an attitude of impartiality.  Captain Geary's testimony <br>was confusing in that it included numerous maritime calculations.  <br>The district court did interrupt several times to ask questions, <br>but the court also did so during the testimony of government <br>witnesses regarding the same subject matter.  The court asked <br>short, even-handed clarifying questions, albeit frequent ones, and <br>refrained from making any communications to the jury about Captain <br>Geary's credibility or calculations.  Nor did the district court <br>abandon its impartiality by rehabilitating the previous testimony <br>of government witnesses or emphasizing points helpful to the <br>prosecution, to the extent that it actually engaged in either <br>activity.  While, in asking its clarifying questions, the district <br>court may have raised issues that defendants would rather the jury <br>not focus on, it cannot be said that the district court did so to <br>benefit the government.  All issues raised in the district court's <br>questions were raised impartially and for the benefit of clarity <br>alone.  Thus, although trial judges are to be given the "widest <br>possible latitude" in making judgments about the need to clarify <br>testimony, Rodrguez v. Banco Central Corp., 990 F.2d 7, 12 (1st <br>Cir. 1992), we would reject defendants' arguments here even if we <br>were not required to grant such latitude. <br>III.  Evidence of Positive Canine Alert to Narcotics Contamination <br>  Defendants also object to the testimony elicited at trial <br>about the positive canine alert to narcotics contamination that was <br>given by Gator, a Puerto Rico Police canine, on board defendants' <br>vessel.  Defendants argue that: (1) the unreliable "dog sniff" <br>evidence should have been excluded under Federal Rule of Evidence <br>403 because its probative value was substantially outweighed by the <br>danger of unfair prejudice, and (2) the court should have allowed <br>defendants' counsel to voir dire the canine's handler, Agent Rafael <br>Ocasio-Cruz, outside the presence of the jury. <br>  A.  Federal Rule of Evidence 403 <br>  We begin by noting that defendants have a difficult hill <br>to climb.  We review a trial court's Rule 403 balancing for an <br>abuse of discretion, and only in "extraordinarily compelling <br>circumstances" will we reverse the district court's judgment <br>concerning the probative value and unfair effect of the proffered <br>evidence.  See United States v. Gilbert, 181 F.3d 152, 160-61 (1st <br>Cir. 1999) (citing United States v. Shea, 159 F.3d 37, 40 (1st Cir. <br>1998)).         <br>  In arguing that dog sniff evidence has little probative <br>value, defendants cite United States v. Carr, 25 F.3d 1194 (3d Cir. <br>1994), for Judge Becker's concurring and dissenting opinion that <br>assails the reliability of dog sniff testimony in the context of <br>currency.  In that opinion, Judge Becker cites to numerous studies <br>and evidence that persuaded him that "a substantial portion of <br>United States currency now in circulation is tainted with <br>sufficient traces of controlled substances to cause a trained <br>canine to alert to their presence."  Id. at 1215.  We express no <br>opinion today regarding Judge Becker's view that a positive canine <br>alert to a particular bundle of currency has little probative value <br>because of the substantial amount of all currency that has been <br>tainted by illegal drugs.  Nevertheless, Judge Becker's discussion <br>is irrelevant to our analysis here.  The present case does not <br>involve a dog sniff of currency, which can easily and quickly <br>travel through several sets of unknown hands.  Rather, our case <br>involves a dog sniff of defendants' vessel.  Judge Becker's <br>analysis might have had some bearing on the present case if <br>defendants had offered similar studies indicating that the <br>circulation of nautical vessels is sufficiently similar to the <br>circulation of currency that a substantial portion of vessels are <br>also tainted with traces of controlled substances.  Because <br>defendants did not -- and perhaps cannot -- show such similarity, <br>the concern raised by Judge Becker does not undermine the <br>reliability of the evidence presented. <br>  Even so, defendants attempt to demonstrate that the dog <br>sniff evidence presented below was unreliable, and therefore <br>lacking in probative value, by listing facts elicited from Agent <br>Ocasio-Cruz on cross-examination.  Defendants claim that it was <br>established during Agent Ocasio-Cruz's cross-examination that <br>canines do not alert properly when they are sick.  However, what <br>Agent Ocasio-Cruz actually testified to was that Gator "act[s] <br>differently" when he is sick.  Defendants also claim that it was <br>established that canines cannot identify the substance for which <br>they are alerting, but the actual testimony was that the canines <br>give the same signal for each of four types of illegal narcotics.  <br>Defendants correctly characterize Agent Ocasio-Cruz's testimony <br>that: (1) the canine cannot determine the time at which the <br>contamination of the surface occurred; (2) the canine gives <br>different signals for alerts to specific and general areas; and <br>(3) the trainer must interpret the signal from the canine.  Agent <br>Ocasio-Cruz also testified that: (1) no drugs were found on the <br>vessel; (2) his report indicated a "possible presence of <br>contamination of controlled substance"; and (3) Gator only <br>scratched on the top of a small fiberglass box on the deck of the <br>vessel.  From this last fact, defendants argue that Gator alerted <br>to a small area (the fiberglass box) that could not have held the <br>large amount of narcotics involved in this case. <br>  Some of the facts elicited by defendants do demonstrate <br>that dog sniff testimony is not a perfect indicator of a particular <br>controlled substance in a particular, well-defined location at a <br>particular time.  After all, it is at least possible that Gator <br>alerted to the presence of a different controlled substance than <br>the cocaine found to have been dumped in the ocean that day.  Also, <br>it is possible that Gator alerted to a contamination that occurred <br>well before the bales of cocaine were alleged to have been aboard.  <br>And, due to Gator's less-than-perfect communicative abilities, it <br>is possible that Gator alerted to an area that was not precisely <br>identified by his handler.   <br>  However, these facts do not substantially diminish the <br>probative value of this testimony.  Agent Ocasio-Cruz testified <br>that Gator gave a positive alert to the presence of a controlled <br>substance on the deck of defendants' vessel.  Despite defendants' <br>attempts to demonstrate the contrary, Agent Ocasio-Cruz <br>specifically testified that Gator alerted to a contaminated area <br>that was larger than merely the fiberglass container.  While this <br>testimony is not perfect, it is extremely probative in a case in <br>which defendants claim that they were never in possession of the <br>cocaine.  No narcotics were found on the vessel, so the only way <br>the government could link the cocaine to defendants was by <br>demonstrating that defendants' vessel was the vessel that dumped <br>the bales of cocaine into the ocean when spotted by the National <br>Guard helicopter.  Defendants contested the officers' claims that <br>they saw defendants' vessel do the dumping, but the positive canine <br>alert corroborated the officers' testimony by demonstrating that an <br>allegedly unbiased canine indicated that a controlled substance <br>contaminated defendants' vessel.  Thus, the dog sniff testimony had <br>substantial probative value. <br>  Defendants offer little argument regarding the opposite <br>side of the Rule 403 equation: unfair prejudice, confusion of the <br>issues, or the potential for misleading the jury.  Defendants argue <br>that allowing this testimony enhanced the credibility of government <br>witnesses who claimed that defendants' vessel was the vessel they <br>saw dumping bales of cocaine, but defendants do not explain why <br>this was improper or unfair.  The admission of the dog sniff <br>testimony to corroborate the officers' testimony was undoubtedly <br>detrimental to defendants' defense, but that does not mean that it <br>is "unfair[ly] prejudic[ial]" under Rule 403.  See United States v. <br>Muoz, 36 F.3d 1229, 1233 (1st Cir. 1994) ("The damage done to the <br>defense is not a basis for exclusion; the question under Rule 403 <br>is "one of 'unfair' prejudice -- not of prejudice alone.") (quoting <br>United States v. Moreno Morales, 815 F.2d 725, 740 (1st Cir. <br>1987)).  "The term 'unfair prejudice,' as to a criminal defendant, <br>speaks to the capacity of some concededly relevant evidence to lure <br>the factfinder into declaring guilt on a ground different from <br>proof specific to the offense charged."  Old Chief v. United <br>States, 519 U.S. 172, 180 (1997).  "'Unfair prejudice' within its <br>context means an undue tendency to suggest decision on an improper <br>basis, commonly, though not necessarily an emotional one."  Id. <br>(quoting Advisory Committee's Notes on Fed. Rule Evid. 403, 28 <br>U.S.C. App., p. 860).  Defendants fail to raise or explain the <br>possibility of any such unfair prejudice.  Accordingly, defendants' <br>Rule 403 argument fails. <br>  B.  Refusal to Allow Voir Dire of Agent Ocasio-Cruz <br>  In the conclusion to the section of their brief arguing <br>that the district court erred in admitting the dog sniff testimony, <br>defendants baldly assert that the court also abused its discretion  <br>by not permitting defendants to voir dire Agent Ocasio-Cruz outside <br>the presence of the jury.  Nowhere in their brief do defendants <br>offer any argument or authority to demonstrate why it was error to <br>fail to allow voir dire outside the jury's presence.  When asked <br>about this contention at oral argument, defendants' counsel <br>responded that: (1) the testimony was prejudicial, and (2) there <br>was no reason for the jury to hear arguments of whether the <br>testimony was substantially more prejudicial than probative.  We <br>have already held that this testimony was not so prejudicial as to <br>require its exclusion under Rule 403, so we see no harm in allowing <br>the testimony to be heard before defense counsel could voir dire <br>Agent Ocasio-Cruz during cross-examination.   <br>  As for counsel's argument that the jury should not have <br>been exposed to arguments regarding the prejudice and probative <br>value of Agent Ocasio-Cruz's testimony, we find no instance in <br>which this occurred. The discussion of defendants' motion to <br>exclude this testimony took place at a sidebar bench conference.  <br>Defense counsel certainly attempted to undermine the value of this <br>testimony during cross-examination of Agent Ocasio-Cruz, but these <br>efforts at vigorous cross-examination were obviously appropriate <br>for the jury to hear.  Because we find that the testimony was <br>properly admitted, and because we find that the jury was not <br>subjected to inappropriate argument, we reject defendants' argument <br>that the district court should have allowed them to voir dire Agent <br>Ocasio-Cruz outside the presence of the jury. <br>IV.    Admission of Defendants' Post-Arrest Statements <br>  Defendants next argue that the district court erred in <br>admitting evidence of statements given by all three defendants <br>during their post-arrest interrogation.  Defendants argue that the <br>admission was improper for two reasons.  First, defendants claim <br>that the statements were not voluntary, despite defendants' signed <br>waivers of their rights.  Second, defendants contend that the <br>prejudicial effect of the statements substantially outweighed their <br>probative value under Rule 403.  We address the latter argument <br>first. <br>  A.  Federal Rule of Evidence 403 <br>  Defendants argue that the relevancy of their statements <br>is far outweighed by the prejudicial effect of allowing the jury to <br>speculate and draw inferences of guilt.  Again, we believe that <br>defendants confuse harmfulness to their case with unfair prejudice.  <br>There is nothing improper about a jury drawing inferences about the <br>guilt of three defendants who gave inconsistent and incredible <br>statements about how they acquired their vessel and where they were <br>going. <br>  Further, these statements and the inconsistencies between <br>them were probative of the offenses with which defendants were <br>charged.  Defendants were charged with possession with intent to <br>distribute cocaine while on the high seas.  Therefore, the purpose <br>of defendants' early morning ocean voyage was quite relevant.  All <br>three defendants claimed that they were going fishing, but their <br>testimony was inconsistent as to the location in which they planned <br>to do so.  None of the three defendants claimed to know who owned <br>the vessel that they were using or how they happened to obtain the <br>keys to the vessel.  The inconsistencies in defendants' statements <br>and the implausibility of their claims of ignorance regarding the <br>origins of the vessel tended to show that their fishing explanation <br>was untrue.  If defendants lied about why they were in the vicinity <br>of the area in which the agents saw bales of cocaine being thrown <br>into the water, those lies could properly be seen by a jury as an <br>attempt by defendants to conceal their crime.  Thus, defendants' <br>statements were relevant.  Consequently, we reject defendants' Rule <br>403 argument in this context as well.   <br>  B.  Voluntariness of Defendants' Statements <br>  Defendants argue that their statements should have been <br>excluded because they were not made voluntarily.  Although the <br>ultimate issue of the voluntariness of a confession is a question <br>of law subject to plenary review, we will accept the district <br>court's subsidiary findings of fact unless they are clearly <br>erroneous.  See United States v. Burns, 15 F.3d 211, 216 (1st Cir. <br>1994) (citing United States v. Garca, 983 F.2d 1160, 1167 (1st <br>Cir. 1993)). <br>  The district court rejected defendants' voluntariness <br>arguments in denying their motion to suppress.  The court appeared <br>to accept the facts that the defendants may have been wet, the air <br>conditioning may have been on in the office, and the defendants may <br>have been hungry.  Nevertheless, the court accepted Agent Vicns' <br>testimony that: (1) it was calm in the room; (2) no one was making <br>any threats or forcing defendants to speak; (3) there were no loud <br>voices or indications of violence; (4) each defendant was advised <br>that he was being arrested for smuggling; (5) Agent Vicns asked <br>each defendant if he knew how to read and write; (6) each defendant <br>read the rights being waived or appeared to do so without <br>indicating that he could not read or write; (7) agents slowly and <br>carefully explained to each defendant in Spanish the rights being <br>waived; and (8) the defendants were asked after every explanatory <br>sentence if they understood their rights.  The court deemed this <br>sufficient to find that the waiver of rights was voluntarily and <br>knowingly made and therefore that the statements were voluntarily <br>made. <br>  Defendants' entire argument on appeal that the statements <br>were involuntary consists of the following: (1) defendant Javier <br>was dressed in shorts and was without a shirt; (2) Javier was <br>interrogated in the Customs office after paddling around for <br>several minutes in rough waters after the collision; (3) Javier was <br>never asked if he could read or write; and (4) Agents Vicns and <br>Lpez each signed defendants' waivers indicating that they <br>witnessed more than one waiver of rights at 5:00 a.m., even though <br>the three defendants were in separate cubicles.  <br>  Only one of these contentions alleges a fact that is at <br>odds with the district court's findings.  On the day after the <br>court's ruling, Agent Vicns testified that he did not ask Javier <br>whether he could read and write.  Even if we were to find that this <br>post-ruling evidence renders erroneous the court's finding that all <br>defendants were asked that question, we would not -- and do not -- <br>disagree with the district court's ultimate finding that the waiver <br>and statements were given voluntarily.  The defendants were placed <br>under arrest at approximately 3:30 a.m. and did not sign their <br>waivers or give their statements until 5:00 a.m.  Therefore, we <br>place little emphasis on the effect of the collision on the <br>defendants at the time they made their statements approximately <br>ninety minutes later.  Defendants do not challenge the district <br>court's findings regarding the calmness of the room, the <br>explanation of defendants' rights, or the steps taken to ensure <br>that defendants understood those rights, and we agree with each of <br>those findings.  After conducting plenary review of this issue, we <br>find that defendants knowingly and voluntarily waived their rights <br>and voluntarily gave the statements that were admitted at trial.  <br>Accordingly, the district court did not err in admitting those <br>statements at trial. <br>V.  Admission of Evidence of the Street Value of the Cocaine <br>  Defendants complain that Agent Waldo Santiago was <br>permitted to testify to the "overestimated" street value of the <br>recovered cocaine:  one billion dollars.  Defendants contend that <br>the sole purpose of this testimony was to frighten the jury, infuse <br>emotional bias, and improperly instill the desire to convict.  <br>Defendants argue that the relevancy of this evidence is low, <br>because the intent to distribute could have been amply demonstrated <br>through testimony that defendants were seen throwing bundles from <br>the vessel. <br>  Citing United States v. Rivera, 68 F.3d 5 (1st Cir. <br>1995), cert. denied, 516 U.S. 1139 (1996), and similar cases from <br>other circuits, the government counters that such evidence of <br>street pricing is "routinely" admitted by courts in order to prove <br>the intent to distribute.  What this argument ignores, however, is <br>that such evidence could conceivably become substantially more <br>prejudicial than probative if the figure is large enough and if <br>other evidence to prove intent to distribute is available. <br>  We have little trouble accepting defendants' view that <br>the introduction of the one-billion-dollar street value was <br>prejudicial.  Whether that prejudice is unfair or not is a close <br>question.  The enormity of that figure could well evoke exactly the <br>type of fear and emotional response that Rule 403 seeks to avoid, <br>but that ability to frighten is only present because defendants <br>chose to smuggle such a substantial amount of cocaine.  It seems to <br>us at least awkward for defendants to argue that it was unfairly <br>prejudicial to shock the jury by informing them of the magnitude of <br>the offense.  However, while much of the shock value comes from the <br>magnitude of the offense, the spin the government attempts to put <br>on the offense by attaching the mammoth street value price tag <br>certainly adds (perhaps unnecessarily) to that shock value. <br>  In all events, evidence of the street value of controlled <br>substances is a widely accepted method of proving the intent to <br>distribute.  See, e.g., Rivera, 68 F.3d at 8 ("There is little <br>dispute that such information may aid in proving intent to <br>distribute."); United States v. Amaechi, 991 F.2d 374, 377 (7th <br>Cir. 1993); United States v. Pigrum, 922 F.2d 249, 254 (5th Cir. <br>1991).  While the district court could have required the government <br>to prove intent to distribute in another way, it had discretion to <br>admit the evidence that it did.  The district court balanced the <br>components of Rule 403 and found that the probative value of this <br>evidence was not substantially outweighed by the danger of unfair <br>prejudice.  We cannot say that the district court's decision fell <br>outside the boundaries of its considerable discretion.  Simply put, <br>this is not one of those sets of "extraordinarily compelling <br>circumstances" in which we would upset the balance struck by the <br>district court.  See Gilbert, 181 F.3d at 160-61. <br>VI.  Impartiality of the District Court's Instruction to the Jury <br>     at the End of the Fifth Day of Trial <br>  Defendants claim that the district court's May 16, 1997 <br>instruction advising the jury not to discuss the case communicated <br>to the jury the court's belief that defendants were guilty.  <br>Defendants complain that the implication of the instruction was <br>that defendants were "dealing with drugs" and were "caught off <br>Fajardo."  Recognizing that they failed to object to the <br>instruction when it was given to the jury, defendants complain that <br>this instruction rose to the level of plain error.  See Fed. R. <br>Crim. P. 52(b) ("Plain errors or defects affecting substantial <br>rights may be noticed although they were not brought to the <br>attention of the court."); see also United States v. Paniagua- <br>Ramos, 135 F.3d 193, 197 (1st Cir. 1998) (subjecting the <br>defendants' complaints regarding an Allen instruction to plain <br>error analysis under Rule 52(b) because they failed to object in a <br>timely fashion).  The government does not respond to this argument. <br>  We first dispose of defendants' claim that the court <br>implied that defendants were "dealing with drugs."  What the <br>district court actually stated was that the jurors were allowed to <br>tell others only that they were jurors on a "case in federal court <br>dealing with drugs."  Thus, the court stated quite accurately and <br>impartially that the case dealt with drugs, not that the defendants <br>did.   <br>  The second quotation offered by defendants raises more of <br>a concern, but only slightly.  The court also told the jurors that <br>they could tell others that the defendants "were caught off Fajardo <br>or in the general area of the east."  We understand how defendants <br>could object to the use of the word "caught," which carries with it <br>the connotation that the individuals who were "caught" were guilty.  <br>It would have been preferable for the district court to have said <br>that the jury could tell others: (1) that the case was a drug case <br>dealing with individuals who were "arrested" near Fajardo, or (2) <br>that the case was a drug case in which the drugs were recovered <br>near Fajardo.  However, we are reluctant to require the district <br>court to engage in such semantic hair-splitting, especially in the <br>absence of a contemporaneous objection.  We do not agree that the <br>district court's perhaps imprecise choice of words communicated to <br>the jury a belief that the defendants were guilty.  Therefore, we <br>do not find that the district court committed any error in this <br>regard, let alone the "obvious" error affecting substantial rights <br>that is required by the plain error standard.  See United States v. <br>Olano, 507 U.S. 725, 732-34 (1993).  <br>VII.  The District Court's Refusal to Give an Instruction on <br>      Defendants' Theory of the Case <br>  Defendants next argue that the district court erred in <br>refusing to give their proposed instruction regarding their theory <br>of defense.  At the conclusion of trial, defendants submitted the <br>following "Special Charge on Theories of Defense": <br>    Also, as it relates to the facts and evidence <br>  in this case, the government must specifically <br>  prove, beyond a reasonable doubt, that thirty- <br>  one (31) bales were thrown overboard from a <br>  vessel approximately 18 to 20 nautical miles <br>  N.E. of Cabo San Juan, (Fajardo Light House) <br>  between the hours of 2:57 a.m. and 3:03 a.m., <br>  on October 17, 1996, which bales were later <br>  retrieved and found to contain a controlled <br>  substance, to wit: cocaine. <br> <br>    The government must also prove, beyond a <br>  reasonable doubt, that the 31 bales it claims <br>  were thrown out or dumped from the vessel it <br>  had been tracking, at approximately 2:57 a.m. <br>  and 3:03 a.m., on October 17, 1996, came from <br>  the same boat and vessel which was rammed and <br>  stopped at approximately 3:30 a.m., on <br>  October  17, 1996, approximately one and one <br>  half (1 1/2 miles off of Cabo San Juan, <br>  (Fajardo Light House) and upon which the <br>  defendants were found and arrested. <br> <br>    Thus, in addition to having to prove, beyond a <br>  reasonable doubt, each and every one of the <br>  elements of the offense, as charged, the <br>  government must also prove, beyond a <br>  reasonable doubt, that the vessel which dumped <br>  the bales between the hours of 2:57 a.m. and <br>  3:03 a.m., was the same vessel upon which the <br>  defendants were found when it was rammed at <br>  approximately 3:30 a.m., approximately one and <br>  a half (1-1/2) miles off of Cabo San Juan, <br>  (Fajardo Light House). <br> <br>    If you find that the government cannot prove, <br>  beyond a reasonable doubt, that the vessel <br>  which was tracked from approximately 1:11 a.m. <br>  until 3:03 a.m. was the same vessel as the one <br>  upon which the defendants were found when <br>  rammed at approximately 3:30 a.m., then you <br>  must find them not guilty and acquit each one <br>  of them of the offense and charge brought <br>  against them. <br> <br>    Further, if you find that the government <br>  cannot prove, beyond a reasonable doubt, that <br>  the vessel upon which the defendants were <br>  found [] could have attained and sustained the <br>  average speed required for it to have traveled <br>  from the approximate point where the bales <br>  were reportedly dropped to the approximate <br>  point where the defendant's vessel was rammed, <br>  then you must find them not guilty and acquit <br>  each one of them of the offense and charge <br>  brought against them.  <br>  The district court refused to give the proposed <br>instruction because it was "replete with the evidence on the <br>record."  The district court stated several times that it was not <br>proper for the court to comment on the evidence and that it would <br>necessarily be doing so if it gave the proposed instruction. <br>  We disagree, in part.  We have repeatedly stated that <br>"the trial judge is not limited to instructions in the abstract.  <br>The judge may explain, comment upon and incorporate the evidence <br>into the instructions in order to assist the jury to understand it <br>in light of the applicable legal principles."  United States v. <br>Maguire, 918 F.2d 254, 268 (1st Cir. 1990) (citing Quercia v. <br>United States, 289 U.S. 466, 469 (1933)); see also United States v. <br>Burke, 948 F.2d 23, 28 (1st Cir. 1991).  There are limitations <br>placed on the trial judge's comments to prevent the judge from <br>assuming the role of a witness, misleading the jury, or distorting <br>or adding to the evidence.  See Maguire, 918 F.2d at 268-69 <br>(quoting Quercia, 289 U.S. at 470).  Beyond that, however, the <br>trial judge may exercise her discretion in how best to assist the <br>jury.  On this basis, the district court likely could have given <br>the detailed, case-specific instruction that the defendants <br>requested, or otherwise simplified the somewhat prolix and <br>repetitive history of facts critical to identifying defendants' <br>vessel as the culprit.  See Leshore v. County of Worcester, 945 <br>F.2d 471, 474 (1st Cir. 1991); Maguire, 918 F.2d at 268. <br>  Nevertheless, our determination that the proposed <br>instruction was not necessarily improper does not mean that the <br>district court was required to give the instruction to the jury.  <br>A defendant is entitled to an instruction on his theory of defense <br>if sufficient evidence is produced at trial to support the defense <br>and the proposed instruction correctly describes the applicable <br>law.  See United States v. Montaez, 105 F.3d 36, 39 (1st Cir. <br>1997) (citing United States v. McGill, 953 F.2d 10, 12 (1st Cir. <br>1992)).  However, the defendant is not entitled to a verbatim <br>reading of the requested instruction, and the court need not <br>instruct on every particular that conceivably might be of interest <br>to the jury.  See Montaez, 105 F.3d at 39.  Therefore, a trial <br>court's failure to deliver a theory of defense instruction will <br>result in reversal only if: (1) the requested instruction correctly <br>describes the applicable law; (2) sufficient evidence is produced <br>at trial to warrant the instruction; (3) the charge actually <br>delivered does not fairly present the defense; and (4) the <br>requested instruction was essential to the effective presentation <br>of the particular defense.  See id. (citing United States v. <br>Passos-Paternina, 918 F.2d 979, 984 (1st Cir. 1990)). <br>  Defendants appear to satisfy the first two elements.  At <br>bottom, defendants' theory of defense instruction, stripped of its <br>details, charges that the government must prove beyond a reasonable <br>doubt that defendants' vessel was the same vessel that government <br>agents tracked and witnessed dumping the thirty-one bales of <br>cocaine.  Because the government had to prove that the defendants <br>possessed the thirty-one bales of cocaine on the high seas, this is <br>essentially a correct statement of the government's burden in this <br>case.  And, although confusing, defendants did present evidence <br>that their vessel could not have been the vessel tracked by the <br>government agents between 1:11 a.m. and 2:50 a.m., due to the sea <br>conditions and the maximum sustainable speed of defendants' vessel. <br>  Where defendants stumble is in the third and fourth <br>elements of the standard.  The instruction delivered to the jury <br>does fairly present defendants' "wrong boat" defense, and the <br>proposed instruction was not essential to the effective <br>presentation of that defense.  The district court instructed the <br>jury that the government had to prove that the defendants knowingly <br>and intentionally possessed the cocaine with the intent to <br>distribute it.  The district court instructed the jury at length <br>regarding the definition of possession and what the jury needed to <br>find to render a guilty verdict.  These instructions adequately <br>covered the substance of the proposed instruction: that the <br>government must prove that it was defendants, and not the crew of <br>some other nearby vessel, that possessed the bales of cocaine.  <br>Because the district court's instructions adequately covered <br>defendants' theory of defense, there was no error in declining to <br>give their proposed instruction.  See McGill, 953 F.2d at 13. <br>  Additionally, defendants were able to effectively present <br>their "wrong boat" defense.  This was the clear theme of the <br>defense put on by defendants, as evidenced by its extensive <br>coverage at closing argument.  The district court's instructions <br>opened the door for the jury to give life to defendants' theme.  <br>The fact that the jury chose not to subscribe to this theory of the <br>case does not mean that defendants were precluded from effectively <br>presenting it.  Accordingly, we reject defendants' challenge to the <br>district court's instructions. <br>VIII.  Sentencing  <br>  Defendants raise several arguments protesting their <br>sentences, although many of them take the form of generalized <br>complaints that are not tied to any particular sentencing <br>calculation.  We review the district court's findings of fact <br>during sentencing for clear error, see United States v. Aker, 181 <br>F.3d 167, 171 (1st Cir. 1999), and we review its determinations of <br>law under the Sentencing Guidelines de novo.  See United States v. <br>Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999).  

  A.  District Court's Remarks Regarding Conspiracy <br>  Defendants first argue that the court erroneously <br>believed that this was a conspiracy case.  They point to the <br>court's statement that "all three of them participated in this <br>conspiracy to import 1,040 kilograms of cocaine."  Defendants do <br>not, however, explain how this alleged error affected their <br>sentences.  They do not argue that the district court used the <br>wrong sentencing guideline in calculating their base offense level.  <br>Nor do they argue that this alleged erroneous belief caused the <br>district court to apply any improper enhancements or to deny any <br>appropriate reductions.  After reviewing the entire sentencing <br>record, it is clear to us that the district court engaged in the <br>proper analysis and merely spoke colloquially when it referred a <br>single time to the "conspiracy to import".  Thus, we reject <br>defendants' contentions that the court erroneously treated this as <br>a conspiracy case. <br>  B.  Undue Influence <br>  Defendants also argue that the district court was unduly <br>influenced by two factors: (1) the amount of cocaine involved and <br>(2) deterrence of other potential offenders.  Again, defendants do <br>not explain why the district court erred by considering these two <br>factors or how this alleged error actually impacted their <br>sentences.   <br>  The amount of the controlled substance is not only a <br>relevant concern at sentencing, it is the most critical factor used <br>to determine the proper base offense level.  See U.S.S.G. <br> 2D1.1(c) (Drug Quantity Table).  Accordingly, the court clearly <br>did not err in considering this factor.  To the extent that <br>defendants argue that the district court was influenced by the <br>amount of the controlled substance to sentence them at the upper <br>end of the guidelines range, we offer two responses.  First, we <br>have no appellate jurisdiction to review a sentence within the <br>applicable sentencing guidelines range if that range was correctly <br>determined.  See United States v. Panet-Collazo, 960 F.2d 256, 261 <br>(1st Cir. 1992).  Second, even if we did, we would find nothing <br>wrong with imposing a high-end sentence based on this factor.  The <br>highest base offense level under  2D1.1 for a violation of 46 <br>U.S.C. App.  1903(a) in which no death or serious bodily injury <br>occurred is Level 38, the level attributed to defendants.  This <br>level is achieved by possessing 150 kilograms of cocaine, and <br>defendants possessed almost seven times that amount.  There is <br>nothing improper about a district court considering a sentence at <br>the upper end of the sentencing range for an offense involving a <br>substantially greater quantity of cocaine than that involved in the <br>standard offense meriting a base offense level of 38. <br>  Our conclusions do not differ with regard to the district <br>court's stated concerns regarding deterrence.  Defendants do not <br>argue that the court's deterrence concerns caused it to err in <br>determining the proper sentencing range.  Rather, defendants merely <br>argue that the court's comments regarding deterrence "reflect an <br>unfounded instinct for harsher punishment."  To the extent that <br>this is an argument that the court's deterrence concerns resulted <br>in a high-end sentence, we again lack jurisdiction, see Panet- <br>Collazo, 960 F.2d at 261, and we again fail to share defendants' <br>outrage over the use of this factor.  In fact, 18 U.S.C. <br> 3553(a)(2)(B) expressly directs the district court to consider <br>the need for adequate deterrence when imposing a sentence.  For <br>these reasons, defendants' claims of undue influence fail. <br>  C.  Escape <br>  Defendants next argue that the district court erred in <br>finding that they attempted to flee the scene when they were <br>apprehended.  Yet again, defendants fail to explain to the Court <br>how they were harmed by this alleged error.  In any event, the <br>district court's finding was not clearly erroneous.  The court <br>heard testimony that: (1) the crew of the Customs vessel pursuing <br>defendants' vessel identified themselves as police officers; <br>(2) defendants' vessel stopped and then accelerated; (3) Rosario- <br>Peralta and Javier jumped into the water when the Customs vessel <br>rammed their boat; (4) Rosario-Peralta and Javier attempted to swim <br>away and remained in the water to avoid boarding the Customs <br>vessel; (5) Daz-Morla sped away when the Customs vessel stopped to <br>retrieve Rosario-Peralta and Javier; and (6) Daz-Morla initially <br>failed to heed orders to stop and eventually stopped only when <br>agents threatened to neutralize the vessel's engines.   <br>  Rosario-Peralta and Javier claim that it is unreasonable <br>to conclude that they were trying to escape, given that they went <br>overboard a mile and a half offshore.  While it may in fact have <br>been unreasonable for Rosario-Peralta and Javier to think that <br>their escape attempt would be successful under those circumstances, <br>the district court's finding that escape was on their minds is <br>still the most reasonable interpretation of the events.  Daz-Morla <br>claims that he was not trying to escape either; he was merely <br>maneuvering the vessel in response to the collision caused by the <br>Customs vessel.  Given the testimony to the contrary, this argument <br>is equally unsuccessful in demonstrating clear error in the <br>district court's finding of attempts to escape. <br>  D.  Acceptance of Responsibility <br>  Each defendant claims that the court erroneously denied <br>him a two-level downward adjustment under U.S.S.G.  3E1.1(a) for <br>acceptance of responsibility.  This adjustment is applicable when <br>"the defendant clearly demonstrates acceptance of responsibility <br>for his offense."  U.S.S.G.  3E1.1(a).  The district court's <br>decision to withhold a reduction in the offense level will not be <br>overturned unless clearly erroneous.  See United States v. <br>Gonzales, 12 F.3d 298, 300 (1st Cir. 1993).  The burden is on the <br>defendant to demonstrate that he or she should have received the <br>reduction.  See United States v. Uricoechea-Casallas, 946 F.2d 162, <br>167 (1st Cir. 1991).   <br>  Defendants greatly diminished their chances for receiving <br>this adjustment by pleading not guilty and proceeding to trial.  <br>See U.S.S.G.  3E1.1, Application Note 2 ("This adjustment is not <br>intended to apply to a defendant who puts the government to its <br>burden of proof at trial by denying the essential factual elements <br>of guilt, is convicted, and only then admits guilt and expresses <br>remorse.").  However, there are "rare situations" in which a <br>defendant may clearly demonstrate an acceptance of responsibility <br>for his criminal conduct even though he exercises his <br>constitutional right to trial.  Id.    <br>  Neither Rosario-Peralta nor Daz-Morla presents this <br>Court with such a "rare situation" because, even now on appeal, <br>they maintain their factual innocence.  Thus, they are not entitled <br>to a downward adjustment for acceptance of responsibility.  See <br>United States v. Dodd, 111 F.3d 867, 870 (1st Cir. 1997) (affirming <br>the district court's denial of a reduction for acceptance of <br>responsibility based on the defendant's "continued denial of <br>factual guilt"); United States v. Prez-Prez, 72 F.3d 224, 228 <br>(1st Cir. 1995) (finding no error in the district court's denial of <br>a  3E1.1(a) adjustment when the defendant declared his innocence <br>at sentencing). <br>  Defendants object to this result, claiming that they <br>cannot be punished for preserving their constitutional right to <br>appeal by maintaining their innocence.  We join the circuits that <br>have rejected this claim and found that  3E1.1 does not prejudice <br>or penalize a defendant for exercising his right to appeal.  See,  <br>e.g., United States v. Davis, 960 F.2d 820, 829 (9th Cir. 1992); <br>United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991); <br>United States v. Monsour, 893 F.2d 126, 129 (6th Cir. 1990).  <br>Although we have not previously addressed the precise issue raised <br>by defendants, our decisions on closely related questions have <br>recognized the principles underlying the decisions of our sister <br>circuits on this issue.  For instance, in United States v. Muoz, <br>36 F.3d 1229, 1236-37 (1st Cir. 1994), we rejected the appellant's <br>argument that his constitutional right to trial was infringed when <br>the district court refused to grant him a  3E1.1 reduction because <br>he had proceeded to trial rather than plead guilty.  While <br>recognizing the difficult choice presented to a criminal defendant, <br>we stated that "not every burden on the exercise of a <br>constitutional right, and not every pressure or encouragement to <br>waive such a right, is invalid." Id. (quoting Corbitt v. New <br>Jersey, 439 U.S. 212, 218 (1978)).  In United States v. Paz Uribe, <br>891 F.2d 396, 400 (1st Cir. 1989), we upheld the constitutionality <br>of  3E1.1 against a challenge brought under the Fifth Amendment, <br>stating that the Sentencing Guidelines "merely codify a tradition <br>of leniency and are not an impermissible burden on the exercise of <br>constitutional rights." <br>  Furthermore, as noted by the Sixth Circuit in Monsour, <br>this is not a case in which a defendant's punishment has been <br>increased for failure to accept responsibility.  See id.  Instead, <br>defendants who choose to demonstrate remorse are granted special <br>leniency.  The fact that  3E1.1 forces defendants to make a <br>difficult choice simply does not violate their constitutional <br>rights to trial or to an appeal.  See Muoz, 36 F.3d at 1236-37; <br>Davis, 960 F.2d at 829.  Thus, we reject defendants' arguments in <br>this regard. <br>  Defendant Javier raises a somewhat different argument.  <br>He claims that he did in fact express remorse and accept <br>responsibility for his conduct when he stated, "I feel very bad <br>about the position I am in and I wish you would consider me."  <br>However, Javier made no mention of the crime in this short <br>statement and did not express regret over any actions he has taken.  <br>Rather, he appeared to express displeasure with the consequences of <br>being convicted of the crime.  As such, Javier's statement falls <br>far short of "clearly demonstrat[ing] an acceptance of <br>responsibility for his criminal conduct."  U.S.S.G.  3E1.1, <br>Application Note 2. <br>  Perhaps recognizing this, Javier claims that the district <br>court "cut him off" before he could finish.  Citing United States <br>v. De Alba Pagn, 33 F.3d 125 (1st Cir. 1994), Javier complains <br>that the district court thereby denied him his right to allocution.  <br>In doing so, Javier misrepresents the situation as it occurred <br>during the sentencing hearing.  When the district court asked both <br>Javier and his counsel if they wished to make any factual <br>corrections to the pre-sentence report, Javier took the opportunity <br>to make the statement quoted above.  The court then told Javier <br>that "[w]e will get to that."  Minutes later, the district court <br>specifically asked Javier if he wanted to say anything before the <br>sentence was pronounced.  Javier replied, "No."  Therefore, <br>Javier's claim that he was denied his right of allocution has no <br>basis in fact.  Javier was free to express remorse and accept <br>responsibility for his criminal conduct, but he chose not to do so.  <br>Thus, we will not now declare that he should have been given a <br>downward adjustment under  3E1.1. <br>  E.  Role-in-the-Offense Adjustments <br>  Each defendant also claims that he should have been given <br>a role-in-the-offense reduction because his role was equivalent to <br>that of a "minimal" or "minor" participant.  Guideline Section <br>3B1.2 provides a four-level reduction for minimal participants <br>(those "plainly among the least culpable of those involved in the  <br>conduct of a group") and a two-level reduction for minor <br>participants (those "less culpable than most other participants, <br>but whose role could not be described as minimal").  See U.S.S.G. <br> 3B1.2, Application Notes 1, 3.  We will reverse the district <br>court's finding that a defendant is not a minimal or minor <br>participant only if it is clearly erroneous.  See United States v. <br>Gonzlez-Soberal, 109 F.3d 64, 73 (1st Cir. 1997) (citing Paz <br>Uribe, 891 F.2d at 399). <br>  Defendants claim that they: (1) lacked knowledge of the <br>scope and structure of the offense; (2) performed only <br>unsophisticated tasks; (3) did not make any decisions that were <br>material to the offense; and (4) possessed little, if any, <br>supervisory responsibility.  In making these arguments, defendants <br>make the same mistake they accuse they district court of making.  <br>Defendants were not convicted of conspiracy offenses; they were <br>convicted of possession with intent to distribute cocaine while on <br>the high seas in violation of 46 U.S.C. App.  1903(a), (b)(1) and <br>(f).  Thus, it matters little to this analysis whether defendants <br>knew the structure of or substantially participated in an alleged <br>overall drug conspiracy.  The fact that defendants may or may not <br>have been a smaller part of a larger conspiracy does not diminish <br>their role in the cocaine possession offense charged here.  <br>Defendants were the only three individuals aboard the vessel that <br>carried the cocaine, and, as the district court found, there was <br>little or no evidence that one of the defendants was comparatively <br>less culpable than the other two.  Defendants' showing is <br>insufficient to demonstrate clear error in the district court's <br>decision.  See United States v. Coneo-Guerrero, 148 F.3d 44, 50 <br>(1st Cir. 1998) (rejecting the defendants' arguments that they, as <br>mere transporters of cocaine, were less responsible for importing <br>and possessing cocaine with intent to distribute than other, <br>unnamed participants with allegedly greater responsibilities), <br>cert. denied, 119 S. Ct. 1511 (1999). <br>                           CONCLUSION <br>  Based on the foregoing, we affirm the judgment of the <br>district court.</pre>

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