
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No.  97-1772                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              MADELINE VALENT N-OQUENDO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                  _____  _____________                                 ____________________                      Linda Backiel on brief for appellant.                      _____________                      Guillermo  Gil,  United  States  Attorney, Jose  A.                      ______________                             ________            Quiles-Espinosa, Senior  Litigation Counsel,  and Antonio  R.            _______________                                   ___________            Bazan, Assistant U.S. Attorney, on brief for appellee.            _____                                 ____________________                                  December 12, 1997                                 ____________________                      Per   Curiam.     Madeline   Valent n-Oquendo   was                      Per   Curiam.                      ____________            convicted  of  three  counts  of  dealing  in  semi-automatic            weapons  prohibited  by 18 U.S.C.   922(v)  and was sentenced            to 51 months of incarceration.                      She  appeals  her  conviction,  arguing  that   the            indictment, at Count I, merged the substantive and conspiracy            offenses such that she did not have fair notice of that which            she  was being accused  and that, therefore,  double jeopardy            concerns  are raised by  her conviction.   A co-conspirator's            statement was erroneously admitted and there were other trial            errors, she says, and she complains that  she was not given a            theory of the defense instruction.  Her sentence is improper,            she also argues, because she  should not have received a two-            point upward adjustment as an organizer or supervisor and she            should  have  been  given a  downward  departure  for extreme            family hardship.                      Many of  the claimed errors were not objected to in            the trial  court and  Valent n's arguments  fail for  reasons            which require only brief explanation.                                          I                      Valent n worked as a manager at a weapons shop, the            Armer a  del Oeste  in  Bayam n, Puerto  Rico.   The  federal            firearms  license for the shop was  issued to Carmen V squez-            V squez.   Valent n wanted to  assume the business and  had a            pending application to obtain her  own license.  The  undoing                                         -2-                                          2            of Valent n  and her  co-defendants, including  Jose S nchez-            Toledo,  came when  a package,  sent though  the U.S.  Mails,            arrived at the Bayam n Post Office with the muzzle of a rifle            sticking out.  It was addressed to the post office box of the            Armer a del  Oeste, but the  return address, in  Florida, was            fictitious.  Valent n  claimed the package and turned it over            to S nchez, an  employee of the Puerto Rican  Police, who put            the package into  a police car and drove  to another location            where he returned  the package to  Valent n.  [S nchez  would            later plead guilty and provide evidence against Valent n.]                       Within  two weeks a  second package arrived  at the            Bayam n Post Office from the same fictitious Florida address.            This package was  picked up by co-defendant  Maritza Emerson-            de-Jes s, who  presented false identification.   Emerson also            worked at the Armer a.  Emerson used Valent n's pick-up truck            to get  the package.   She  also turned  the package  over to            S nchez,  who again  put it  into  his police  car, in  which            Gonz lez-Rom n  was a passenger.  The postal authorities, who            had  been   monitoring  these  transactions   with  interest,            immediately arrested the two men, and later, the women.                        These transactions  were not recorded on  the books            of  the  Armer a.   Indeed,  documents  appear to  have  been            falsified in  an effort to  show that the transaction  in the            weapons  was  authorized.   The  two  packages  contained six            Norinco rifles  and two large  capacity magazines, prohibited                                         -3-                                          3            by law.  The two women acknowledged receiving $750.00 for the            transactions,  but  argued  that  they  thought  the  weapons            belonged  to the  Puerto Rican  Police and  had been  sent to            Miami for repair.  The jury rejected that theory.                                          II            The Indictment                      While  not   artfully  drafted,  Count  I   of  the            Indictment alleged that the defendants did "unlawfully engage            in the business of dealing in firearms as the term is defined            in Title 18,  United States Code, Section 921(3),  that is, a            conspiracy to violate  Title 18, United States  Code, Section            922(a)(1)."  The  indictment went on to allege  the object of            the conspiracy  and a series  of overt acts,  giving specific            places and times.  Valent n never objected to  the indictment            before the  trial court,  so review is  for plain  error. See                                                                      ___            United States  v. Olano, 507 U.S.  725 (1993).  There  was no            _____________     _____            plain error.                        The   combination   of  the   references   in  the            indictment   to  the  statutory  sections  involved  and  the            description of the  overt acts gave Valent n  ample notice of            the  charges.    To  the  extent  Valent n  argues  there was            ambiguity as to  whether the transaction was  illegal because            she   was  unlicensed  or   because  she  was   licensed  but            nonetheless  engaged in an  illegal transaction, Valent n was            given  discovery showing that  the government would  show she                                         -4-                                          4            did  not  have   a  valid  license  at  the   time  of  these            transactions.  There was no  due process notice problem.  The            district court  sensibly construed  Count I  as a  conspiracy            count and so instructed, without objection.                        As to any  hypothetical double jeopardy  issue, the            issue is at present exactly that:  hypothetical.  If there is            a  future prosecution, Valent n may raise the double jeopardy            issue at that time.            Co-Conspirator Statement and Other Alleged Trial Errors                      Applying  this  circuit's  oft-recited  test  under            United  States v.  Petrozziello, 548  F.2d 20,  23 (1st  Cir.            ______________     ____________            1977), the district  court conditionally held  admissible the            statement of  Gonz lez-Rom n, as reported  by S nchez-Toledo.            The statement concerned the relationship between Valent n and            Gonz lez,   that  they  had made  arrangements  to  send  the            packages from  Florida to Puerto  Rico and that all  of those            involved were  aware that the packages contained weapons.  At            the  end  of  the trial,  the  district  court revisited  the            question and again determined the statements were admissible.            Valent n argues  that there was  no evidence of  a conspiracy            other than these statements and so admission of the testimony            was error.  The argument  is without merit, as the recitation            of the evidence demonstrates.                      Nor  was Valent n entitled to an instruction on the            defense theory  that these transactions  were legitimate  and                                         -5-                                          5            the guns were intended for the Puerto Rico Police.  There was            no evidence to support the theory.  The document proffered in            support  were not established  to be official  documents from            San Juan Police; rather, they  appear to have been falsified,            and rather ineptly at that.                      We have reviewed the remaining alleged trial errors            and find the arguments to be without merit.            Sentencing                      The district court found that Valent n was a leader            or organizer  in the  offense and  accordingly increased  the            offense level  by two points  under U.S.S.G.   3B1.1(c).   On            the  evidence, this conclusion was plainly correct.  Valent n            gave Gonz lez  the address  to which the  weapons were  to be            shipped,  twice called S nchez-Toledo to pick up the weapons,            appeared herself to pick up the guns, and let Emerson use her            truck when  Emerson picked up the  guns.  As to  the downward            departure argument  made here,  no request  was  made to  the            district court for a downward departure and there is no clear            error.                      Affirmed.                      ________                                         -6-                                          6
