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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2294 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                    JOSE MIGUEL MATEO-SANCHEZ, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2295 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>             SANTOS DE AZA-PAEZ, A/K/A SANTOS DE ASA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-1100 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      RAFAEL PEREZ-CABRERA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-1101 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      CARLOS JULIO CIPRIANO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-1102 <br> <br>                    UNITED STATES OF AMERICA, <br>                            Appellee, <br> <br>                                v. <br> <br>                    VICTOR HERNANDEZ-CANARIO, <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. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>Hall, Senior Circuit Judge, <br>                    and Lipez, Circuit Judge. <br> <br>                      _____________________ <br> <br>     Teodoro Mndez-Lebrn for appellant Jos Miguel Mateo-Snchez. <br>     Luis Rafael Rivera for appellant Santos de Aza-Paez. <br>     Linda Backiel for appellant Rafael Prez-Cabrera. <br>     Edgardo Rodrguez-Quilichini, Assistant Federal Public <br>Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, <br>was on brief for appellant Carlos Julio Cipriano. <br>     Francisco M. Dolz-Snchez, by appointment of the Court, for <br>appellant Vctor Hernndez-Canario. <br>     Jos A. Quiles-Espinosa, Senior Litigation Counsel, with whom <br>Guillermo Gil, United States Attorney, Camille Vlez-Riv, <br>Assistant United States Attorney,  Nelson Prez-Sosa, Assistant <br>United States Attorney, and Jos A. Ruiz-Santiago, Assistant United <br>States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                        February 3, 1999 <br>                       ____________________

          HALL, Senior Circuit Judge.  Defendants Jos Miguel <br>Mateo-Snchez ("Mateo"), Santos de Aza-Pez ("de Aza"), Rafael <br>Prez-Cabrera ("Prez"), Carlos Julio Cipriano ("Cipriano"), and <br>Victor Hernndez-Canario ("Hernndez") appeal their convictions and <br>sentences for conspiracy to possess with intent to distribute 380 <br>kilograms of cocaine in violation of 21 U.S.C.  841(a)(1) and <br>846.  The district court sentenced Mateo, de Aza, Cipriano, and <br>Hernndez to 292 months in prison, and sentenced Prez to 151 <br>months in prison.  We have jurisdiction under 28 U.S.C.  1291 and <br>18 U.S.C.  3742(a), and we affirm. <br>                             FACTS <br>          Acting on a tip from an informant that drugs were to be <br>smuggled into the Los Colchos area on the night of May 2, 1996, a <br>joint task force of U.S. Customs agents and Puerto Rico police <br>officers set up surveillance of the area.  Los Colchos is a heavily <br>wooded and uninhabited coastal area that borders a naval base.  The <br>area can be accessed only by a small dirt road ("Los Colchos Road") <br>that connects to a major road ("Road #3").  During a perimeter <br>inspection of the area, agents found a black Mazda pickup truck <br>hidden by bushes that fit the description of the truck that the <br>informant had claimed would be used in the smuggling operation.  In <br>addition, while driving along Los Colchos Road towards Road #3, <br>agents and officers passed within inches of a three-car caravan.  <br>The officers saw a green station wagon with one occupant, followed <br>by a red Mazda pickup truck with two occupants and a gray Dodge <br>pickup truck with two occupants.  The officers left the scene to <br>meet with other agents, and then returned to Los Colchos Road, <br>where they positioned themselves in a wooded area approximately 150 <br>feet from a gate ("Algodones gate"), which blocks vehicular access <br>to a dirt road that leads from Los Colchos Road to Algodones beach. <br>          At approximately 10:30 p.m., with a bright moon in the <br>sky, agents heard the sound of a motor boat approaching, and <br>observed the black Mazda pickup previously seen parked in the <br>bushes, and the green station wagon and the red Mazda pickup that <br>had been part of the caravan, drive down Los Colchos Road and stop <br>at the Algodones gate.  The agents watched as five individuals got <br>out of the vehicles and met together for several minutes.  The <br>agents were unable to see the individuals' faces or to hear what <br>they said. <br>          Two of the individuals got into the black Mazda and drove <br>up Los Colchos Road towards Road #3.  The agents radioed ahead to <br>other agents, who were positioned at the entrance to Los Colchos <br>Road, and requested them to detain the black Mazda.  As the black <br>Mazda approached the agents, the passenger, Cipriano, threw a <br>cellular telephone out the window.  Agents detained both Cipriano <br>and the driver, Hernndez.  A second cell phone was found next to <br>Hernndez.  Cipriano was wearing black clothing. <br>          About five to ten minutes later, the agents at Algodones <br>gate observed one of the remaining three individuals get into the <br>green station wagon and drive towards Road #3.  Agents radioed <br>ahead, and the green station wagon was also stopped.  The agents <br>detained the driver, Mateo, and found a third cell phone in the <br>pickup.  Mateo was wearing black clothing. <br>          At the same time that the individual got into the green <br>station wagon, the other two remaining individuals started walking <br>down the dirt road towards Algodones beach.  Shortly thereafter, <br>agents observed five or six individuals walk up the trail to <br>Algodones gate while carrying packs on their shoulders.  These <br>individuals placed the packs between some bushes, and walked back <br>towards Algodones beach.  These individuals were not seen again.   <br>          A short time later, agents observed the two individuals <br>who had been seen meeting at Algodones gate walk up the trail to <br>Algodones gate while carrying packs on their shoulders.  The <br>individuals placed their packs in the bushes with the other packs, <br>got into the red Mazda pickup, and drove up Los Colchos Road <br>towards Road #3.  The agents again radioed ahead, and agents <br>stopped the red Mazda as it approached Road #3.  The agents <br>detained the driver, Cabrera, and the passenger, de Aza.  Cabrera <br>and de Aza were both wearing black clothing that was wet and <br>covered with sand.  It did not rain that night. <br>          The agents waited a while longer, and then investigated <br>the scene.  The agents seized a total of eight packs from the <br>bushes, six large sacks and two smaller ones.  The sacks weighed <br>approximately 380 kilograms, and their contents tested positive for <br>cocaine.  In addition, the agents found an assault rifle with the <br>sacks.  Nearby, the agents also found the grey Dodge pickup truck <br>that was seen in the first three-vehicle caravan.  Inside the <br>pickup, the agents found ammunition, a knitted black cap, and a <br>black T-shirt. <br>          Cipriano, Hernndez, Mateo, Prez, and de Aza were <br>indicted on one count of conspiracy to possess with intent to <br>distribute approximately 380 kilograms of cocaine.  All five <br>defendants pled not guilty.  At the close of the government's case, <br>the district court denied all five defendants' Rule 29 motions for <br>judgment of acquittal.  The defendants did not testify at trial, <br>and all five defendants were convicted.  Cipriano, Hernndez, <br>Mateo, and de Aza were sentenced to 292 months in prison.  Prez <br>was sentenced to 151 months in prison. <br>                           DISCUSSION <br>                               I <br>          Hernndez and Cipriano contend that the police lacked <br>probable cause to arrest them.  However, both Hernndez and <br>Cipriano failed to make a pretrial challenge to the indictment, and <br>have therefore failed to preserve this issue for review on appeal.  <br>United States v. Latorre, 922 F.2d 1, 6 (1st Cir. 1990), cert. <br>denied, 502 U.S. 876 (1991). <br>                               II <br>          All five defendants contend that the district court erred <br>by denying their Rule 29 motions for judgment as a matter of law <br>because there was insufficient evidence to support their <br>convictions.  The defendants argue that the evidence established <br>their mere presence at the scene without establishing their actual <br>participation in the conspiracy.  We will reverse the district <br>court's denial of the defendants' Rule 29 motions only if, viewing <br>the entirety of the evidence in the light most favorable to the <br>government and drawing all legitimate inferences from that <br>evidence, no rational trier of fact could have found the defendants <br>guilty beyond a reasonable doubt.  See United States v. Reed, 977 <br>F.2d 14, 17 (1st Cir. 1992).  The district court did not err. <br>          The government introduced evidence that showed that the <br>five defendants passed within inches of agents as they drove in a <br>caravan down a dirt road to an isolated beach.  The defendants then <br>met with each other late at night, in a deserted and heavily wooded <br>area that had limited access, as a motor boat approached at the <br>time and place where an informer had told police drugs would be <br>smuggled, and where in fact approximately 380 kilograms of cocaine <br>was offloaded.  The defendants were wearing dark clothing, carrying <br>cell phones, and driving pick up trucks and a station wagon to help <br>transport the large quantity of cocaine.  Prez and de Aza were <br>seen carrying the packs that contained cocaine.  An assault weapon <br>was found with the cocaine, and one of the trucks driven into the <br>area contained a bag with ammunition.  The defendants offered no <br>plausible explanation for their presence in this area so late at <br>night.  The evidence therefore supported the jury's verdict for <br>conspiracy to possess with intent to distribute approximately 380 <br>kilograms of cocaine.  See United States v. Cruz-Paulino, 61 F.3d <br>986, 999 (1st Cir. 1995) (circumstances in which presence implies <br>participation); United States v. Tejeda, 974 F.2d 210, 213 (1st <br>Cir. 1992) (jurors allowed to use common sense and draw reasonable <br>inferences based on "natural inclinations of human beings"); United <br>States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (inference that <br>criminals rarely invite innocent persons to witness crimes), cert. <br>denied, 506 U.S. 1063 (1993). <br>                              III <br>          Hernndez and Cipriano contend that the district court <br>erred by attributing to them at sentencing an improper amount of <br>cocaine because there was no evidence to demonstrate that such a <br>large amount of cocaine was foreseeable.  We will reverse the <br>district court's quantity determination only if it was clearly <br>erroneous.  See United States v. Miranda-Santiago, 96 F.3d 517, 524 <br>(1st Cir. 1996).  The district court did not err. <br>          It was proper to attribute to Hernndez and Cipriano all <br>reasonably foreseeable quantities of cocaine that were within the <br>scope of the conspiracy.  See id.  Hernndez and Cipriano were <br>present at the smuggling location with three other coconspirators <br>where they were to meet a boatload of smugglers, suggesting a <br>large-scale operation.  The conspirators used three pick up trucks <br>and a station wagon, suggesting that a large quantity of drugs <br>would need to be transported.  An assault weapon was found with the <br>cocaine, suggesting that the amount of drugs would be worth <br>protecting.  The district court's finding that Hernndez and <br>Cipriano were liable for the full amount of cocaine was therefore <br>not clearly erroneous. <br> <br>                               IV <br>          Hernndez, Cipriano, Prez, and de Aza contend that the  <br>district court erred by denying their requests for a two-level <br>downward departure for their roles as minor participants under <br>U.S.S.G.  3B1.2.  We will reverse the district court's denial of <br>a request for a minimal participant downward departure only if its <br>finding that the defendants were not minor participants was clearly <br>erroneous.  See United States v. Gonzlez-Soberal, 109 F.3d 64, 73 <br>(1st Cir. 1997).  The defendants had the burden to prove their <br>entitlement to a minor participant downward departure.  See id.  <br>The district court did not clearly err because the defendants <br>failed to satisfy their burden.  See United States v. Coneo- <br>Guerrero, 148 F.3d 44, 50 (1st Cir. 1998) (affirming district <br>court's denial of minor participant departure to defendants who <br>claimed status as transporters of cocaine with less responsibility <br>than deceased boat captain). <br>          In addition, Prez argues that the district court <br>deprived him of his due process right to be sentenced on the basis <br>of substantially correct information because the court limited its <br>consideration of the participants in the conspiracy to his <br>codefendants.  This argument is without merit because the district <br>court specifically considered individuals implicated in the <br>conspiracy other than Prez's codefendants.  After considering the <br>evidence that Prez wished the district court to consider, the <br>district court concluded that the evidence fell far short of <br>convincing the court that Prez's role in the offense was minor.  <br>The district court therefore did not deprive Prez of his due <br>process rights. <br>                               V <br>          All five defendants contend that the district court erred <br>by enhancing their sentences under U.S.S.G.  2D1.1(b)(1) for <br>possession of a weapon in connection with the conspiracy.  We <br>review the factual findings underlying the district court's <br>dangerous weapon enhancement for clear error.  United States v. Lagasse, 87 F.3d 18, 21-22 (1st Cir. 1996).  The district court did <br>not err. <br>          Ammunition was found in one of the pickup trucks that was <br>initially driven down the Los Colchos Road.  The presence of <br>ammunition in that truck suggests that the weapon was possessed by <br>the coconspirators well before the boat was offloaded.  In <br>addition, Prez and de Aza were seen placing sacks of cocaine where <br>the gun was found.  From this location, the weapon was readily <br>available to protect both the conspirators and the drugs.  Once the <br>government demonstrated that the weapon was "readily available to <br>protect either the participants themselves during the commission of <br>the illegal activity or the drugs and cash involved in the drug <br>business," the burden shifted to the defendants to persuade the <br>court "that a connection between the weapon and the crime [wa]s <br>clearly improbable."  See United States v. McDonald, 121 F.3d 7, 10 <br>(1st Cir. 1997) (government's burden satisfied by showing gun found <br>in bathroom of defendant's house that was command post for drug- <br>trafficking activities).  The defendants, however, failed to <br>satisfy their burden of demonstrating that the connection between <br>the weapon and the conspiracy was clearly improbable.  See id.(defendant failed to satisfy burden by failing to provide <br>evidentiary support for denial of knowledge of weapon or to suggest <br>explanation for presence of gun).  Therefore, the district court <br>did not err by enhancing the defendants' sentences under U.S.S.G. <br> 2D1.1. <br>                               VI <br>          Prez and de Aza contend that they were deprived of their <br>right to a fair trial because the district court failed to strike <br>as irrelevant and prejudicial references made at the trial to the <br>assault weapon and ammunition found at the scene.  Although Prez <br>waived this argument by failing to object when the government <br>offered the gun into evidence, see United States v. Taylor, 54 <br>F.3d 967, 972-73 (1st Cir. 1995), we will give him the benefit of <br>the doubt and address the merits of his claim. <br>     Prez and de Aza argue that the weapon was irrelevant <br>because the government failed to introduce evidence linking them to <br>the weapon.  However, as discussed above, ammunition found in one <br>of the trucks suggests that the weapon was available to the <br>conspirators well before the boat was offloaded.  In addition, de <br>Aza was seen placing a sack of cocaine with other sacks of cocaine <br>where the weapon was found.  Consequently, the government did <br>provide evidence connecting Prez and de Aza to the weapon. <br>     Prez and de Aza argue that, although the weapon was <br>mentioned in the indictment, the weapon was not relevant to any <br>element of the offense charged.  We disagree.  The assault weapon <br>was relevant because it was one of the means by which the <br>defendants protected themselves and the cocaine conspiracy.  SeeUnited States v. Cresta, 825 F.2d 538, 554 (1st Cir. 1987), cert. <br>denied sub nom., Impemba v. United States, 486 U.S. 1042 (1988). <br>     Prez and de Aza also argue that the weapon was <br>prejudicial to their defense because it presented a clear danger of <br>overwhelming the evidence.  Although evidence unfavorable to the <br>defense is always to some extent prejudicial, the weapon was not <br>impermissibly prejudicial.  Cf. id.  In addition, the admission of <br>the weapon could not have overwhelmed the 380 kilograms of cocaine <br>unloaded in furtherance of the conspiracy. <br>                              VII <br>     Mateo contends that the district court erred by allowing <br>the government to comment on his silence at trial.  Specifically, <br>Mateo argues that when the prosecutor framed arguments to the jury <br>in the form of, "Ask yourselves" what the defendants were doing in <br>the Los Colchos area on the night in question, the prosecutor was <br>in fact commenting on the fact that Mateo had not testified at <br>trial.  We disagree.  The prosecutor's statements cannot be <br>construed as a comment on Mateo's silence.  See United States v.   <br>Lavoie, 721 F.2d 407, 408 (1st Cir. 1983), cert. denied, 465 U.S. <br>1069 (1984).  Therefore, there was no error. <br>                           CONCLUSION <br>     Based on the foregoing, we affirm the judgment of the <br>district court. <br>     AFFIRMED.</pre>

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