
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 94-1235                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             LUIS CARTAGENA-CARRASQUILLO,                                Defendant, Appellant.                                 ____________________          No. 94-1236                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CARLOS LUGO-LOPEZ,                                Defendant, Appellant.                                 ____________________          No. 94-2127                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JOSE L. FIGUEROA-GARCIA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                     [Hon. Morton A. Brody,* U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                 Lynch, Circuit Judge,                                        _____________                             and Watson,** Senior Judge.                                           ____________                                 ____________________               Roberto  Rold n Burgos,  by  appointment of  the court,  for               ______________________          appellant Cartagena-Carrasquillo.               Miriam Ramos  Grateroles, by  appointment of the  court, for               ________________________          appellant Lugo-L pez.               Theodore  L.  Craft,  by   appointment  of  the  court,  for               ___________________          appellant Figueroa-Garc a.               Nelson  P rez-Sosa Cruz,  Assistant United  States Attorney,               _______________________          with whom  Guillermo Gil, United  States Attorney, was  on brief,                     _____________          for appellee.                                 ____________________                                   December 1, 1995                                 ____________________          *Of the District of Maine, sitting by designation.          **Of  the   U.S.  Court   of  International  Trade,   sitting  by          designation.                                         -2-                      LYNCH,  Circuit  Judge.    Cocaine  trafficking  in                      LYNCH,  Circuit  Judge.                              ______________            Puerto Rico resulted in the criminal convictions of the three            appellants, who raise  issues primarily as to  the conduct of            their trials.  Two issues -- the exclusion of expert evidence            attempting  to  establish  an   insanity  defense  based   on            Posttraumatic Stress  Disorder claimed to have  resulted from            military  service  in  Vietnam   and  the  prosecutor's  ill-            considered reference  to religion in his  closing argument --            merit close discussion.  We affirm, rejecting the defendants'            challenges on these and other grounds.            Facts and Trial Proceedings            ___________________________                      In the  summer of 1992, Jefferson  Mor n, a special            agent  with  the  Drug  Enforcement  Administration  ("DEA"),            learned  from  a confidential  informant, Ram n  Malav , that            defendant  Carlos  Lugo-L pez   was  interested  in   selling            kilogram quantities  of cocaine.  On  instruction from Mor n,            Malav  confirmed Lugo-L pez' interest in a phone conversation            and later called to  negotiate the purchase of  two kilograms            of  cocaine.  Malav  told Lugo-L pez that he could page Mor n            (whom Malav  said would  handle the money) when he  was ready            to make the transactions.  Lugo-L pez had Mor n paged.  Lugo-            L pez  left a  message for  Mor n that  the "contracts"  were            ready  and that he should  drop by Lugo-L pez'  house to pick            them up.                                           -3-                                          3                      Malav  went to  the Lugo-L pez residence, where  he            met  the  supplier,  defendant  Luis  Cartagena-Carrasquillo.            Cartagena-Carrasquillo  left,  saying  that he  would  return            right  away  with the  drugs.   Cartagena-Carrasquillo  later            returned with  defendant Jos   L. Figueroa-Garc a and  a bag.            They  went  to  a room  at  the  rear  of  the carport  where            Cartagena-Carrasquillo opened the  bag and took out a kilo of            cocaine.                      During phone conversations between Mor n and Malav             while Malav  was  at Lugo-L pez' house,  Malav  said two  men            had arrived to  sell two of the four kilograms  of cocaine in            the bag.  Lugo-L pez asked Malav  to call his partner, Mor n,            to  come and put up the money.   In a round robin, Lugo-L pez            kept insisting that the  money be brought to his  house while            Malav , on instructions from  Mor n, tried to lure Lugo-L pez            to San Juan (where  an arrest would be easier)  with promises            he would be paid there.   At some point during the  series of            pages   and   telephone  calls,   Cartagena-Carrasquillo  and            Figueroa-Garc a left to  sell one  of the  kilos to  another.            When  the  two returned,  Lugo-L pez  and  Malav  were  still            sallying about where  the sale would take  place.  Cartagena-            Carrasquillo got upset with the delay  and left in a car with            Figueroa-Garc a.                      Law enforcement agents shadowed the car, driven  by            Figueroa-Garc a,  and saw  Cartagena-Carrasquillo get  out of                                         -4-                                          4            the  car carrying a tan bag.   When agents approached him, he            got back into the car  and fled with Figueroa-Garc a.   A car            chase  resulted, ending in a public housing project.  The two            men fled by  foot and were  ultimately arrested.   Cartagena-            Carrasquillo,  who had  the  tan bag  in  his hands  when  he            abandoned  the car,  did not  have it  when he  was arrested.            Agents later found  it in a  trash can in  the area where  he            first  fled on foot.  It contained three kilograms of cocaine            and $12,900 in cash.                      On June 17,  1992, a  grand jury  returned a  four-            count   indictment   charging  that   Lugo-L pez,  Cartagena-            Carrasquillo,  Figueroa-Garc a,  and   another,  aiding   and            abetting each other, possessed with intent to distribute some            3303.96  grams  of  cocaine  in  violation  of  21  U.S.C.               841(a)(1)  and 18 U.S.C.   2.  Lugo-L pez was also charged in            two  counts with  using a  telephone in  furtherance  of drug            distribution in violation of 21 U.S.C.   843(b).                      Trial  started on  November 30,  1993.   After four            days of  testimony, defendants  requested and were  granted a            mistrial.   Cartagena-Carrasquillo  and Lugo-L pez  moved for            dismissal on  double jeopardy grounds.   The district court's            denial of the motion was appealed.                      While that  appeal was  pending, this case  went to            trial  for the  second  time  on  February  14,  1994.    The            defendants were found guilty of all counts.  The appeals from                                         -5-                                          5            the conviction  were consolidated  with the appeals  from the            denial  of  the  motion  to  dismiss  on  grounds  of  double            jeopardy.            Post-Traumatic Stress Disorder            ______________________________                      Lugo-L pez argues there was  error in the exclusion            of  his  proffered expert  testimony  that  he suffered  from            Posttraumatic Stress Disorder  ("PTSD") and  his attempts  to            base an insanity defense on PTSD.1                       The insanity defense, set forth at  18 U.S.C.   17,            is an affirmative defense.  The burden is on the defendant to            show by clear and convincing evidence, see 18 U.S.C.   17(b),                                                   ___            that:                      at the time of the commission of the acts                      constituting the  offense, the defendant,                      as a result of a severe mental disease or                      defect,  was  unable  to  appreciate  the                      nature and quality or the wrongfulness of                      his acts.  Mental  disease or defect does                      not otherwise constitute a defense.                                            ____________________            1.  Lugo-L pez  is a  Vietnam   veteran  who asserted  he was            exposed  to Agent  Orange, has  been hospitalized  for mental            illness and  had been  diagnosed as  schizophrenic.  He  also            asserted  that  he  suffers  from PTSD,  which  is  a  mental            disorder recognized in the  Diagnostic and Statistical Manual                                        _________________________________            of Mental Disorders 424-29 (4th ed. 1994).  PTSD is caused by            ___________________            exposure to an extreme traumatic stressor involving actual or            threatened death or  serious injury or other  threat to one's            physical integrity and  tends to result  in symptoms such  as            re-experiencing  the traumatic  event,  a  tendency to  avoid            stimuli  associated  with  the  trauma,  numbing  of  general            responsiveness, and increased arousal.  Id. at 424.                                                    ___                                         -6-                                          6            18  U.S.C.    17(a).   There  is  a procedural  component  to            assertion of the defense as  well.  Rule 12.2 of  the Federal            Rules  of  Criminal  Procedure  requires that  notice  of  an            intention  to raise the insanity defense must be given by the            defendant to the government "within the time provided for the            filing of pretrial motions or at such later time as the court            may  direct."   If  such notice  is  not given,  the insanity            defense may not be raised.                      The   trial  court   excluded  the   PTSD  evidence            primarily because  it felt  inadequate notice had  been given            and   secondarily  because   it  thought  the   evidence  was            insufficient  in  any event.    The  standard of  review  for            excluding  the   testimony  under  Rule  12.2   is  abuse  of            discretion.   See United  States v.  Cameron, 907  F.2d 1051,                          ___ ______________     _______            1059  (11th Cir.  1990);  United States  v. Weaver,  882 F.2d                                      _____________     ______            1128,  1136 (7th  Cir.), cert.  denied sub  nom.  Schwanke v.                                     _____  ______ ___  ____  ________            United States, 493 U.S. 968 (1989); United  States v. Duggan,            _____________                       ______________    ______            743 F.2d 59, 80 (2d Cir. 1984).   A district court's decision            to admit or  exclude expert  testimony is  entitled to  great            deference and will be reversed only if:  (1) the decision was            based on  an incorrect  legal standard  or (2)  the reviewing            court  has a  "'definite and firm  conviction that  the court            made a clear error  of judgment in the conclusion  it reached            based  upon a  weighing  of the  relevant factors.'"   United                                                                   ______            States v. Shay,  57 F.3d  126, 132 (1st  Cir. 1995)  (quoting            ______    ____                                         -7-                                          7            United States v. Benavente Gomez, 921 F.2d 378, 384 (1st Cir.            _____________    _______________            1990)); see also  United States  v. Brien, 59  F.3d 274,  277                    ___ ____  _____________     _____            (1st  Cir. 1995)  ("[T]rial  judges have  traditionally  been            afforded   wide  discretion   to  admit  or   exclude  expert            evidence."), cert. denied,  ___ S. Ct. ___,  94 U.S.L.W. 3316                         _____ ______            (1995).                      The insanity defense was  not raised in the aborted            first trial, nor was it  raised when Lugo-L pez asserted  and            lost  the issue of whether  he was competent  to stand trial.            One  month  after  the  mistrial, Lugo-L pez  first  filed  a            written motion on January  11, 1994, giving notice of  a PTSD            defense.  The motion  indicated that Lugo-L pez would present            the testimony  of both Luis Falc n-Torres,  his caseworker at            the Puerto Rico Vietnam  Veteran's Assistance Program, and an            as yet unnamed expert on PTSD.  The motion also said that the            facts  surrounding the  commission of  the crime  showed that            defendant  was  suffering  from  delusions or  a  disease  or            disorder that affected his conduct.  The motion was discussed            in a February 1, 1994 status conference and the judge hearing            that motion "noted" that Lugo-L pez "shall raise at trial the            defense  of  insanity" and  that  "[t]he  issue whether  post            traumatic stress disorder is  admissible shall be resolved at            trial."                        The   government,   aware   only   of   psychiatric            evaluations performed by a Dr. Cabrera earlier on defendant's                                         -8-                                          8            competence  to  stand  trial,   on  February  4  requested  a            preliminary hearing on the admissibility of the proposed PTSD            testimony.  On  February 9, Lugo-L pez responded  and filed a            motion  stating his  intent to  offer a  Dr. Santiago  as his            expert witness and requesting authorization for this expert's            services.   The  authorization was  granted, and  counsel was            "reminded that the admissibility  of Dr. Santiago's testimony            [would be] left to the trial judge."                      Trial started before a different judge  on February            14.   At no time did Lugo-L pez file proposed instructions on            an  insanity defense, although on  the first day  of trial he            did  file  a  memorandum of  law  as  to  whether PTSD  could            constitute an insanity defense.  On the fifth day of the six-            day  trial, the issue of the PTSD defense came up indirectly,            during  colloquy  concerning  an  objection   to  the  social            worker's testimony  as to Lugo-L pez' war  record and medals.            The court noted at a  sidebar conference that such  testimony            would be admissible,  if at  all,2 only if  the PTSD  defense            was admissible and asked  to see psychiatric expert's report.            Later, after review  of the report, the trial  court excluded            the insanity defense.                                            ____________________            2.  The  trial  judge later  ruled  the war-record  testimony            inadmissible for  other reasons.   Thus, we  understand Lugo-            L pez' appeal on the insanity defense issue to be focussed on            the exclusion  of the  expert testimony of  his psychiatrist.            The social  worker's testimony was not  intended to establish            the  defense;  at  most  it would  buttress  the  psychiatric            testimony.                                         -9-                                          9                      The defense  was, we think, timely  raised in light            of the pre-trial  rulings of the conference judge  noting the            raising of the defense  and reserving the admissibility issue            to  trial and the later authorization of the retention of the            psychiatric expert.  See Cameron, 907  F.2d at 1059.  But  we                                 ___ _______            also  hold that there was no abuse in excluding the testimony            proffered  for  certain other  reasons  stated  by the  trial            judge.   The trial judge found that Dr. Santiago's report was            at best conclusory  in that it did "not show  in what way the            PTSD   syndrome   could   relieve   the   defendant   of  the            responsibility  for the  crimes charged"; that  the testimony            was insufficient as  a matter of law in that it did not go to            Lugo-L pez' state of mind  on the dates of commission  of the            crimes charged,  and that it  would be unduly  prejudicial in            violation of Rule 403 in light of its lesser probative value.                      The only witness proffered to establish the defense            was Dr. Santiago.  As to PTSD, the expert's report stated, in            pertinent part:                      [Lugo-L pez] justifies  his behavior with                      his  special army  training and  his Viet                      Nam  experience when his  main problem is                      his poor judgment -- he cannot anticipate                      the consequences of  his behavior most of                      the time.  His schizophrenic make up adds                      to his difficulties.            The psychiatrist's diagnosis was that:                      [C]ocaine and heroin use and dependency .                      . . together with his  schizophrenic make                      up explain his  grandiose and  delusional                                         -10-                                          10                      behavior, [e]specially in relation to the                      informant during investigation.            The report concluded:                      There is no doubt  that the patient meets                      the criteria for a P.T.S.D. patient [and]                      was  having delusions  when he  was being                      intervened  (sic)  by a  D.E.A. confident                      (sic)  and it is  confirmed in the report                      prepared by D.E.A. agents. . . .   At the                      time  of the  intervention of  the D.E.A.                      representatives, Mr. Lugo because  of his                      delusions of grandeur  had a  significant                      mental disease and was unable  to conform                      his  conduct to  the requirements  of the                      law.                      There was  no abuse of discretion  in excluding the            testimony  based on this  proffer.  The  report is singularly            unfocussed  and does not address  whether at the  time of the            commission of the crimes charged, Lugo-L pez "as a result  of            a severe mental  disease or defect, was  unable to appreciate            the nature  and quality or the wrongfulness  of his act."  18            U.S.C.    17.  As the  statute itself says, the  mere fact of            "mental  disease or  defect does  not otherwise  constitute a            defense."  Id.                       ___                      The report does not  establish that Lugo-L pez  was            suffering  from a  "severe" mental  disorder  at the  time of            commission  of the  offenses; at  most, it  characterizes his            claimed  disorder  as  "significant."    Indeed,  the  report            recounts  that by 1992, the year of the crime, Lugo-L pez had            stopped using his drugs  of choice, heroin and cocaine.   His            hospitalizations for  schizophrenia  had  been  more  than  a                                         -11-                                          11            decade  before.   His  mental  status  at  the  time  of  Dr.            Santiago's   examination  was   described  as   "mild[ly]  to            moderate[ly]  depress[ed],"  "logical  and coherent"  but  at            times  "irrelevant,"  "well  oriented  in  time,  place,  and            person," suffering from "poor judgment" and being "insecure."            The legislative history of 18 U.S.C.   17 reveals that:                      The  concept of  severity  was  added  to                      emphasize  that   non-psychotic  behavior                      disorders   or   neuroses   such  as   an                      "inadequate    personality,"    "immature                      personality,"  or  a  pattern  of  "anti-                      social                           tendencies"donot                                          constitutethedefense.            S.  Rep.  No.  98-225,  98th  Cong.,  2d  Sess.  229  (1984),            reprinted in U.S.C.C.A.N. 3182, 3411, quoted in United States            ____________                          _________ _____________            v. Salava, 978 F.2d 320, 323 (7th Cir. 1992).               ______                      There is nothing in the psychiatrist's report which            suggests  that  the  defendant  did  not know  or  could  not            appreciate  that selling  cocaine was  wrong.   At  best, the            report accepts and repeats Lugo-L pez' statements that he was            suffering delusions at the time that Malav  approached him to            ask whether he would  sell Malav  drugs.  Lugo-L pez  said he            was "feeling" he was a CIA spy with connections to the police            in  Haiti.  The report does not  link such a delusion with an            incapacity to  determine whether  selling  cocaine is  wrong.            Moreover, there  is no explanation  as to why  such delusions            would be associated  with PTSD.  And there  is no evidence in            the report  or otherwise  that Lugo-L pez was  suffering from            any effects, delusional  or otherwise, on the  dates when the                                         -12-                                          12            crimes   --   the   drug   transaction  and   the   telephone            conversations -- actually took place.                      The psychiatrist's  testimony is the  only evidence            the defendant offered to establish the insanity defense.  The            psychiatrist's report  is inadequate  to establish that  as a            result  of his PTSD Lugo-L pez was  "unable to appreciate the            nature and quality or the wrongfulness of his acts."  See  18                                                                  ___            U.S.C.    17(a);  Duggan, 743  F.2d at  81 (expert  affidavit                              ______            asserted that "as a  result of [PTSD], [defendants] were  not            able  to  conform their  conduct to  the requirements  of the            law,"  but  contained no  evidence  or  clinical findings  in            support of these conclusions and was thus inadequate to raise            the insanity defense in compliance with Rule 12.2); see  also                                                                ___  ____            United States v. Whitehead, 896 F.2d 432, 435 (9th Cir. 1990)            _____________    _________            (jury not permitted to consider defense where testimony could            not  establish  with  convincing  clarity  that  PTSD  caused            defendant to be unable to appreciate the wrongfulness of bank            robbery), cert. denied, 498  U.S. 938 (1990).3  The  district                      _____ ______            court  did not apply an  incorrect legal standard  or make an            error in judgment in excluding the psychiatrist's testimony.                                            ____________________            3.  We also  note, but do not rest our decision on, the trial            judge's concern under Rule  403.  Cf. United States  v. Shay,                                              ___ _____________     ____            57 F.3d 126,  133 (1st  Cir. 1995).   The proffered  insanity            defense,  supported  only  by  vague,  weak   and  conclusory            testimony,  could skeptically be viewed as  only a pretext to            get before the  jury the extremely sad and  sympathetic story            of a much decorated Vietnam war hero gone far astray.                                         -13-                                          13            Religious Reference            ___________________                      Cartagena-Carrasquillo,  who throughout  trial wore            white clothing, a possible marker  of adherence to a minority            religious  sect, now  objects on  appeal to  the prosecutor's            closing arguments  which, in an apparent  effort to discredit            the defendant's  testimony, embraced Catholicism.   While the            prosecutor's argument was improper, that is not enough to win            the  day for  this defendant,  who did  not properly  make or            preserve  his objection, and as to whom the evidence of guilt            was overwhelming.                      We know only from  assertions of defense counsel on            this  appeal, which  the  government on  questioning at  oral            argument  conceded,  that  Cartagena-Carrasquillo wore  white            clothing at trial  and that  this manner of  dress in  Puerto            Rico may symbolize membership  in a minority religious group.            We do not know, nor apparently  did the jury, whether he  was            in fact  a member of  such a  group nor the  strength of  the            inference that he might be.  Nothing was put on the record.                      The  closing argument,  though, is  on  the record.            The prosecutor argued:                      When we live in the same neighborhood, we                      go  to the  same  church, when  we go  to                      church,   we   come  out,   we   talk  to                      everybody.  Now that we are in [L]ent and                      this is in "Cuaresma", we do "via crusis"                      where we go from house to house and say a                      prayer and meet the people there.                                         -14-                                          14            The prosecutor's reference to Lent ("Cuaresma"), to doing the            way of the cross  ("via crusis"), to saying prayers,  and the            use  of  the term  "we"  suggested  an alliance  between  the            government  and a  church to which,  presumably, many  of the            jurors,  but  not  the  defendant, belonged.    Injection  of            religion  into the case was flatly wrong and contrary to what            the public has a right to expect of government prosecutors.                      Cartagena-Carrasquillo  objected to  the reference.            The court  responded it  would hear  the  objection later  at            sidebar  and  asked counsel  to keep  the objection  in mind.            During the  sidebar conference, the objection  was not raised            again  and there was no request for a curative instruction or            other curative action.                      Cartagena-Carrasquillo  argues  that  even  in  the            absence  of a renewed objection or  a request for instruction            that  the  trial judge  was  obligated  to  give  a  curative            instruction  sua sponte.   While there  may be  situations in                         ___ ______            which  the  imposition of  sua  sponte  obligations on  trial                                       ___  ______            judges  has  been considered,  see,  e.g.,  United States  v.                                           ___   ____   _____________            Santiago  Soto, 871 F.2d  200, 202 (1st  Cir.), cert. denied,            ______________                                  _____ ______            493  U.S. 831 (1989), we decline to impose one here.  Whether            an instruction  will "cure"  a  problem or  exacerbate it  by            calling more attention to it than warranted is within the ken            of counsel and part of litigation strategy and judgment.  The                                         -15-                                          15            obligation  to  suggest  the  appropriate response,  if  any,            rested on defense counsel.                       Balancing,  on  Cartagena-Carrasquillo's part,  the            failure  to  properly give  notice to  the  trial court  of a            desire for  remedial instruction,  to preserve the  issue, or            even  to create  a  proper record,  against the  isolated but            seemingly deliberate  injection of religion into  the case by            the prosecutor,  we turn to a test adopted by this Court in a            more  straightforward case,  United States  v. Hodge-Balwing,                                         _____________     _____________            952  F.2d 607,  610 (1st  Cir. 1991).   In  reviewing whether            improper  remarks  in  a  closing argument  are  grounds  for            reversal in that they "so poisoned the well" that the trial's            outcome  was  likely  affected,   this  court  considers  the            following factors:  "(1) whether the prosecutor's conduct was            isolated and/or deliberate; (2)  whether the trial court gave            a strong and explicit cautionary instruction; and (3) whether            it is likely that any prejudice . . . could have affected the            outcome of the case."  Id.                                   ___                      As to  the first prong, "[d]efendant's religion has            no bearing whatsoever  on any legitimate issue in  the case."            United  States v. Goldman, 563 F.2d 501, 504 (1st Cir. 1977),            ______________    _______            cert.  denied,  434 U.S.  1067 (1978).    But a  reference to            _____  ______            religion does not necessarily require  reversal.  Id. at 505.                                                              ___            Second, while  there was no curative  instruction here, there            was   no  request  for  one,  and  we  do  not  discount  the                                         -16-                                          16            possibility  that  the  failure to  make  the  request was  a            tactical choice  by defense  counsel.  See  United States  v.                                                   ___  _____________            Brandon, 17 F.3d 409,  446 (1st Cir. 1994), cert.  denied sub            _______                                     _____  ______ ___            nom. Granoff v. United States, 115 S. Ct. 80 (1994)  and Ward            ____ _______    _____________                        ___ ____            v. United States, 115 S. Ct. 81 (1994).               _____________                      We turn,  then, to the  third prong  of the  Hodge-                                                                   ______            Balwing  test and ask whether it is likely that any prejudice            _______            could have affected the  outcome of the case.   The religious            references  in the  prosecutor's closing  were less  a direct            appeal to religious  prejudice than  in other  cases we  have            considered (such as Goldman) and there is less reason here to                                _______            draw an  inference of prejudice.   On objection,  the remarks            stopped.                        The instructions  given to the jury  assisted it in            keeping  to the  path before  it, free  from prejudice.   The            district  court  instructed  the  jury to  perform  its  duty            "objectively  without any  bias  or without  any  prejudice,"            reminded the jury that  the defendants were presumed innocent            unless guilt was established  beyond a reasonable doubt, told            the  jury that statements  of counsel were  not evidence, and            explicitly set out the  elements of the crimes charged.   See                                                                      ___            United  States v.  Giry,  818  F.2d  120, 132-33  (1st  Cir.)            ______________     ____            (prosecutor's  improper  closing   argument  that   defendant            "sounds  like Peter who for the third time denied Christ" was            deliberate and unprovoked,  but was not  objected to and  did                                         -17-                                          17            not   produce  plain   error   in  light   of  overall   jury            instructions,  even  without   an  instruction   specifically            addressed to the prejudicial comment), cert. denied, 484 U.S.                                                   _____ ______            855 (1987).                      Further,  the evidence  of guilt  was  very strong.            Cartagena-Carrasquillo  was introduced  by Lugo-L pez  as the            supplier.   He  arrived at  the Lugo-L pez  house with  a bag            containing cocaine.   He left  the house with  the bag,  fled            when approached  by law enforcement agents, led the agents on            a car chase, left the car  with the bag in hand, and  the bag            containing  cocaine was  found soon  after  the arrests  in a            trash can in the area where he had been.            Double Jeopardy            _______________                      Both the origins  and demise of defendants'  double            jeopardy  claims lie in the termination of the first trial by            mistrial.                      The mistrial  was declared  by the judge  after the            government's first witness, Malav , was observed going into a            witness  room with DEA special  agent Mor n.   Mor n had been            assigned to protect the witness, a confidential informant and            the  only witness  to the  drug transaction.   The  court had            given  a general  instruction to  all witnesses  not to  talk            about their  testimony.  Although  there was  no evidence  of            violation  of  that  instruction,  an  objection  by  defense                                         -18-                                          18            counsel to the two talking precipitated  a defense motion for            mistrial, which  was allowed.   The trial  court specifically            held  that there was no  misconduct by the  prosecutor and no            intent to goad a  mistrial.  Those fact findings  are subject            to  a clearly erroneous standard of review.  United States v.                                                         _____________            Serra, 882 F.2d 471, 473 (11th Cir. 1989).  The trial court's            _____            denial  of  defendants' motion  to  dismiss  based on  double            jeopardy  is subject  to de  novo review.   United  States v.                                     __  ____           ______________            Aguilar-Aranceta, 957  F.2d 18, 21 (1st  Cir.), cert. denied,            ________________                                _____ ______            113 S. Ct. 105 (1992).                      Defendants   contend  that   the  conduct   of  the            government's  witness  and  the  DEA agent  was  designed  to            produce  a mistrial.   This  is based  on  a theory  that the            witness  felt he had not testified well, that he attempted to            signal  his discomfort to the prosecution in full view of the            defense, and that the hostility expressed by the DEA agent to            defense counsel  when they confronted him  about meeting with            the witness  all were intended to goad defendants into moving            for a mistrial.  The government's  hypothesized gain would be            a second  chance  for its  key witness  to do  a better  job.            Theory is not fact and  the trial court specifically rejected            the theory as not based on the facts.  Nothing  in the record            suggests its findings were clearly erroneous.                      Because  the defendants  consented to  the mistrial            declaration  and because there was  no basis to conclude that                                         -19-                                          19            the  conduct  giving rise  to  the mistrial  was  intended to            provoke the defendant  into moving for a mistrial,  there was            no double jeopardy bar to  reprosecution.  Oregon v. Kennedy,                                                       ______    _______            456 U.S. 667, 675-76  (1982); United States v. Perez Sanchez,                                          _____________    _____________            806 F.2d  7, 8  (1st Cir. 1986),  cert. denied, 480  U.S. 922                                              _____ ______            (1987).  "Only where the governmental conduct in  question is            intended  to 'goad' the defendant  into moving for a mistrial            may a defendant raise  the bar of double jeopardy to a second            trial after having succeeded in aborting the first on his own            motion."  Kennedy, 456 U.S. at 676.                      _______            Filing of Information Under 21 U.S.C.   851            ___________________________________________                      Late  on February  10,  1994, the  day before  jury            selection started for the  second trial, the government filed            and  faxed to counsel for Lugo-L pez  an information under 21            U.S.C.     851(a)(1)  seeking  an  enhancement of  penalties.            While such  cliff-hanging practices are not  wise, the filing            was  made before  jury selection,  and that  is all  that was            required.   Kelly v. United  States, 29 F.3d  1107, 1110 (7th                        _____    ______________            Cir.  1994) (citing  cases).   That  the information  was not            filed  during the first trial did not bar the government from            seeking  an enhanced  penalty during  the second,  unless the            government sought  to punish  the defendant for  exercising a            constitutional  or statutory  right.   See  United States  v.                                                   ___  _____________            Goodwin,  457 U.S. 368, 384  (1982).  Lugo-L pez alleges that            _______                                         -20-                                          20            the  prosecution   made  the   last  minute  filing   of  the            information out of prosecutorial vindictiveness  arising from            earlier dealings in the case.  Even if seeking an enhancement            before the second trial that was not sought before an earlier            trial  were sufficiently  likely to  be vindictive  so as  to            warrant a presumption of  vindictiveness, the prosecutor here            rebutted that  presumption.  See United  States v. Marrapese,                                         ___ ______________    _________            826  F.2d 145,  149 (1st  Cir.), cert.  denied, 484  U.S. 944                                             _____  ______            (1987).   The district court, after  hearing the government's            reasons for  the eve-of-trial filing,  determined that  there            was  no vindictiveness.  There  is no reason  to disturb that            finding.                      Lugo-L pez also contends  that the information  was            signed  by  an  unauthorized  person  and  contained  certain            mistakes  of fact.    This contention  is  unavailing.   Even            assuming  that an  Assistant United  States Attorney  was not            authorized  to  sign  the  information, that  and  the  other            mistakes could  be and were corrected  prior to pronouncement            of the sentence, as permitted under the statute.            Sufficiency of the Evidence            ___________________________                      The claims by Cartagena-Carrasquillo and Figueroa-            Garc a that  the evidence  was insufficient to  support their            convictions  are without  merit,  as the  description of  the            facts of record amply demonstrates.                                         -21-                                          21            Chain of Custody            ________________                      Cartagena-Carrasquillo  challenges   the  chain  of            custody of the  cocaine.  Chain of  custody arguments usually            go  to  the weight  of  the evidence  and  not admissibility.            United  States v. Ortiz, 966  F.2d 707, 716  (1st Cir. 1992),            ______________    _____            cert.  denied, 113 S. Ct. 1005 (1993); United States v. Luna,            _____  ______                          _____________    ____            585 F.2d 1, 6 (1st Cir.), cert. denied, 439 U.S. 852  (1978).                                      _____ ______            Review is for abuse of discretion.  Ortiz, 966 F.2d at 716.                                                _____                      Defendant argues that the  deal was for 2 kilograms            of  cocaine while  the  amount found  in  the tan  bag  was 3            kilograms,  that one bag of  cocaine was opened  while at the            Lugo-L pez house, but that  no bags were opened when  the DEA            agents  found them, and that the bags were found abandoned in            a high crime area.  From this, the defendant says, there is a            chance of altered or substituted evidence.  This is a classic            weight of the evidence argument.                        The  government  agents  testified  as   to  proper            custodial  procedures  and  the evidence  suggests  plausible            explanations  for   the  discrepancies   noted.    One   such            explanation  is that  there were  four kilograms  originally,            that  the  opened one  kilogram bag  of  cocaine was  sold to            another when Cartagena-Carrasquillo left Lugo-L pez' house to            make a sale, thus accounting for the remaining 3 kilograms of            cocaine and the $12,900 in cash found in the bag later.                                         -22-                                          22            Other Evidentiary Rulings            _________________________                      Lugo-L pez complains that the trial court  erred in            curtailing the cross-examination of an informant.              Limitations   on  the  cross-examination  of  a  witness  are            reviewed for abuse  of discretion.  United  States v. Boylan,                                                ______________    ______            898  F.2d 230,  254 (1st  Cir.), cert.  denied, 498  U.S. 849                                             _____  ______            (1990).   Although  a  defendant does  have a  constitutional            right  to  cross-examine witnesses  against him,  U.S. Const.            amend. VI, that  right is  not unlimited.   United States  v.                                                        _____________            Corgain, 5  F.3d 5, 8  (1st Cir. 1993).   Here, the  district            _______            court  refused   to  allow   cross-examination   as  to   the            confidential informant's  failure to file income tax returns.            The informant's  motive and  potential bias had  already been            established.   Defense counsel  also had already  pointed out            many  inconsistencies  in  his  trial testimony  as  well  as            discrepancies between the informant's testimony at  trial and            his earlier testimony both  before the grand jury and  at the            mistrial.  The jury had ample information from which to gauge            the credibility of this witness.  See, e.g., United States v.                                              ___  ____  _____________            Rodriguez, 63 F.3d  1159, 1168  (1st Cir. 1995).   The  trial            _________            court  did  not  abuse  its  discretion  in  limiting  cross-            examination on the failure to file income tax returns.                      Lugo-L pez  also  complains   about  the   district            court's allowance of the withdrawal of a number of pages of a            trial transcript  that had  previously been admitted.   There                                         -23-                                          23            was  no  objection to  this withdrawal  by Lugo-L pez  at the            time; he waited  until after the verdicts had  been returned.            Even assuming  that we should  consider this issue  given the            late  objection,  the  error,  if  any,  was  harmless.   The            district court ruled that this  portion of the transcript was            inadmissible  as irrelevant and confusing to  the jury.  Such            was  well within its discretion.   Moreover, the only purpose            defendant gives to be served by the portion of the transcript            that was  withdrawn was to further  undermine the credibility            of the confidential informant.   Because the jury  had enough            information to  determine  such  credibility,  there  was  no            prejudice.                      Cartagena-Carrasquillo  argues  that  the  district            court erred in allowing a DEA  agent to give his opinion that            annotations on the back of a business presentation  card were            related to a drug transaction.  Cartagena-Carrasquillo argues            that  the annotations  were simply  the addition  of numbers,            facially innocent.   This court  has previously held  that it            was well within  a trial court's  discretion to admit  expert            testimony  identifying  a similar  document  --  a column  of            numbers added together -- as a drug ledger and explaining its            contents.   United States v. Echeverri, 982  F.2d 675, 680-81                        _____________    _________            (1st  Cir. 1993).  There was similarly no abuse of discretion            here.                                         -24-                                          24            Sentencing            __________                      Figueroa-Garc a asserts he should not have received            any more  than the mandatory  minimum sentence of  60 months,            because, he  asserts, there  was  never any  evidence of  his            guilt  or, at  least, hardly  any evidence.   The  jury found            otherwise.  He  was sentenced  to 78 months  after the  court            found  he   had  not  accepted  responsibility   and  so  was            ineligible  for  a   two-level  decrease  under  U.S.S.G.                3E1.1(a).   He claims  he was  entitled to  a reduction  as a            minor participant under U.S.S.G.   3B1.2(a).                      The  defendant has the burden of showing that he is            entitled  to  a  reduction  in  his  offense  level  under               3B1.2(a).   United States v.  Ocasio, 914 F.2d  330, 332 (1st                        _____________     ______            Cir. 1990).  On appeal, the defendant must establish that the            district court's determination was clearly erroneous.  Id. at                                                                   ___            333.   Defendant  has  not met  that  burden.   The  evidence            clearly  shows that he was  more than a  minor participant in            the  criminal venture.  He and Cartagena-Carrasquillo arrived            at the Lugo-L pez house  together with kilogram quantities of            cocaine.   They left together  to sell a  kilogram to someone            else and  returned together.   When the transaction  with the            confidential   informant    failed,   Figueroa-Garc a   drove            Cartagena-Carrasquillo  away.   Figueroa-Garc a then  led the            agents in  a car chase and  fled from the law.   The district                                         -25-                                          25            court  did not  clearly err  by denying  a reduction  under              3B1.2(a).  Figueroa-Garc a was not a minor participant.                      Affirmed.                      _________                                         -26-                                          26
