
USCA1 Opinion

	




          May 11, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2259                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                HECTOR RODRIGUEZ-PENA,                                Defendant, Appellant.                                 ____________________        No. 93-2260                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                              ANGEL GALINDEZ-RODRIGUEZ,                                Defendant, Appellant.                                _____________________        No. 93-2261                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                              GONZALO VELAZQUEZ-ROTGER,                                Defendant, Appellant.                                _____________________                                _____________________        No. 93-2262                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                             VICTOR RIVERA a/k/a QUIQUE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Rafael F. Castro-Lang for appellants  Angel Galindez-Rodriguez and            _____________________        Victor Rivera.            Rafael Anglada-Lopez for appellant Gonzalo Velazquez-Rotger.            ____________________            Harry R. Segarra for appellant Hector Rodriguez-Pena.            ________________            Antonio  R. Bazan,  Assistant United  States Attorney,  with  whom            _________________        Guillermo Gil,  United States  Attorney, and Jose  A. Quiles-Espinosa,        _____________   _______________________      ________________________        Senior Litigation Counsel, were on brief for appellee.                                 ____________________                                 ____________________                      ALDRICH,   Senior   Circuit   Judge.     Appellants                                 ________________________            Rodriguez Pe a (Pe a), Velazquez Rotger (Velazquez), Galindez            Rodriguez (Galindez)  and Rivera, co-defendants  in a  single            criminal trial on multiple narcotics-related charges, jointly            or severally advance assignments of  error on appeal of their            convictions: (1) the court erroneously instructed the jury on            the  meaning of "beyond a  reasonable doubt"; (2) motions for            severance should have been granted; (3) a  motion to suppress            pretrial   photospread   identifications  should   have  been            granted; (4) the court abused its  discretion in allowing the            government to present evidence which it withheld in violation            of  Federal  Rule  of  Evidence  16;  (5)  the  evidence  was            insufficient  to  convict;   (6)  the  prosecutor   committed            reversible errors  in his opening and  closing arguments; and            (7) the court should have instructed the jury on the defenses            of entrapment and  duress.   We sustain one,  and reject  the            rest.            I.        Background            I.        Background            ____________________                      Relating the  essential facts most favorably to the            verdict, United  States v.  DeMasi, 40 F.3d  1306, 1310  (1st                     ______________     ______            Cir.  1994), cert. denied, ___  U.S. ___, 115  S.Ct. 947, 130                         _____ ______            L.Ed.2d 890  (1995), in  late December, 1991,  a confidential            informant  of the  United  States Customs  Service, known  as            "Gordo,"  responded  to  a   shortwave  radio  request  by  a            Colombian  national, identified as Cabeza, to contact certain                                         -3-            individuals  in  Puerto  Rico.    This led  to  meetings  and            telephone conversations  over  the next  several months  with            various  individuals, including  Velazquez  and Pe a,  during            which  a  narcotics smuggling  venture  with  Cabeza and  his            suppliers in Colombia  was hatched.  Both  Velazquez and Pe a            worked closely  on the planning and  preparation with various            undercover agents who became  involved to facilitate Customs'            monitoring  of  the plot.    The  evidence contains  numerous            photographs   and  over  one   hundred  recordings  of  their            discussions  up until  the moment  it finally  unravelled and            several  of  the players  were  arrested.    Gordo agreed  to            arrange  the  transport  of  the drugs  to  Puerto  Rico  and            proposed utilizing  a Customs  undercover vessel to  meet and            receive  the cargo from a  Colombian ship at  sea.  Initially            the  conspirators  contemplated bringing  in 2,000  pounds of            marijuana;  subsequent  discussions with  Velazquez  and Pe a            increased the amount  to 5,000 to 6,000  pounds, or more.   A            shipment of up to  300 kilograms of cocaine was  discussed as            well.                      On  March 27, 1992  Gordo was scheduled  to pick up            10,000  pounds of  marijuana,  and two  kilograms of  cocaine            specifically intended for Velazquez, from  the Colombian ship            at  sea.  However, the  latter had sailed  off course, broken            down,  and after Pe a provided Gordo  with some equipment for            an  attempt at repair, was  eventually forced to jettison its                                         -4-            load and return to Colombia.                      The  conspirators were monitored  as they continued            to arrange for a  successful importation throughout the month            of April.   Velazquez mailed a navigational  device to Cabeza            to  facilitate the  meeting of  the two  vessels at  sea, and            provided a second code sheet to Gordo.  On April 30, however,            Velazquez was  arrested by local authorities  on drug related            charges,  and  Gordo suddenly  left  Puerto  Rico, apparently            because he thought  the deal  was dead.   Customs agent  Juan            Dania, posing as Gordo's boss, communicated  to Pe a that the            deal  was still on and, after some hesitation, Pe a agreed to            continue.   Pe a  thereafter met  with agent  Polo Diaz,  who            replaced Gordo,  to discuss importing around  6,500 pounds of            marijuana and  5 kilograms of cocaine,  and was photographed.            In  subsequent discussions  he spoke  of another  shipment of            several hundred  kilograms of  cocaine.   At a later  meeting            Pe a provided  Diaz  with another  new  code sheet  from  the            Colombians,  and, a  week later,  with a number  of emergency            lamps  for the ship.  He remained  in close contact with Diaz            as  they finalized  plans to  meet the  shipment of  a second            load.                      On  May  30, 1992,  five undercover  Customs agents            picked  up   153  bales   of  marijuana  and   two  Colombian            participants  from a  Colombian ship  at sea  and transported            them  aboard  their  undercover  vessel to  Puerto  Rico,  as                                         -5-            arranged.    Cabeza  contacted  Diaz  to  inquire  about  the            shipment  and to discuss another shipment of 300 kilograms of            cocaine.  On  or about June 1st they arrived  in Puerto Rico,            and Diaz telephoned Pe a to obtain keys to a truck onto which            Diaz was supposed to load the narcotics for delivery to Pe a.            Pe a had obtained  a red  dump truck from  his friend  Victor            Rivera,  who had rented it  from an acquaintance named Martin            Salgado.   Around  the beginning  of June,  Rivera instructed            Salgado  to leave the  truck at the Plaza  Carolina.  When it            proved unusable, Pe a enlisted Rivera to help obtain a second            one,  which Rivera  partially financed together  with another            friend.   On June 2, Rivera and the friend together delivered            a white enclosed truck to Plaza Carolina.1                      Pe a and Diaz  arranged that June 4th  would be the            date  of delivery.  The  agents retrieved the  truck from the            Plaza  Carolina, loaded it up,  and delivered it  back to the            Plaza Carolina, as arranged.  On June 4th Diaz phoned Pe a to            inform him the truck was ready and he would be waiting in his            car  at a nearby Burger King parking  lot for Pe a to deliver            the money he owed for  the shipment in exchange for the  keys            to  the marijuana- laden truck.  At around noon Diaz received            a call on his car phone from Pe a, who informed  him that his                                            ____________________            1.  The red  dump truck  was never  returned to  Salgado, who            eventually reported  it stolen after Rivera  proved unable to            provide any information on its whereabouts and advised him to            make out a stolen vehicle report using a false name and phone            number to describe the person to whom he had rented it.                                         -6-            nephew was  on his way  over to  exchange the  money for  the            keys.  As  they were  talking a young  black man  approached,            exchanged  $30,000 cash with Diaz for the truck keys, and ran            off.                      Shortly  thereafter  the  truck,  followed  by Pe a            driving  a gray Volvo, followed by  a burgundy silhouette van            with  tinted windows,  were  tailed  by several  surveillance            teams  from various  federal  agencies.   The three  vehicles            pulled  aside briefly  on 65th  Infantry Avenue,  and several            surveillance  vehicles had to pass ahead in order not to blow            their cover.   When the convoy  resumed, it made a  left turn            down  Monte Carlo  Avenue, heading  toward the  Monte Hatillo            housing complex.  Several  surveillance vehicles made u-turns            on  65th Infantry  Avenue in  order to  head back  toward the            Monte Hatillo.                      When the first of  these, occupied by three federal            agents,  turned right onto  Monte Carlo Avenue  in pursuit of            the convoy,  the burgundy  van suddenly pulled  diagonally in            front  of their vehicle and  raked it with  machine gun fire.            The ambush  severely  wounded the  three  agents.   A  second            undercover car pulled up and several agents emerged to return            fire.   Shooting was  also coming from  elsewhere, apparently            from  within  or  around  the   housing  complex.    A  third            surveillance vehicle,  driven by agent  Montalvo and carrying            two  other federal agents, pulled up and observed the van and                                         -7-            truck  fleeing the scene.  Pe a's Volvo was nowhere in sight.            Montalvo pursued  the  van  and  truck,  but  was  slowed  by            automatic  weapons fire  from  several individuals  on  foot.            They lost sight  of the two  vehicles and stopped to  pull on            bullet-proof vests.  As they were doing so, three individuals            approached firing automatic or semi-automatic weapons.  After            some  exchange of fire, Montalvo  managed to hit  one of them            and the others retreated carrying the wounded  man.  Montalvo            and his fellow agents then returned to the  site of the first            shooting incident to assist the injured agents.                      The  truck was  later found  parked in  the housing            complex.  The owner of the van reported it  stolen some hours            later.  The friend  with whom Rivera had purchased  the white            truck reported  it stolen around  3:30 that afternoon.   Pe a            was arrested  later that day when he  went to local police to            report that he had been kidnapped and handcuffed at gunpoint,            and his car  had been stolen,  a story  he later recanted  in            favor  of cooperating  with  the government.   Velazquez  was            already in  custody, and was indicted  on information gleaned            from  surveillance  of  his  activities  before  his  arrest.            Rivera was arrested some months later on information provided            by Salgado.   Galindez was  arrested in December  of 1992  on            other charges and  was indicted in February,  1993 on charges            in  connection with  this  case after  being identified  in a            photospread by agents Montalvo and Diaz.                                         -8-            II.       Jury Instruction on Reasonable Doubt             II.       Jury Instruction on Reasonable Doubt             _______________________________________________                      Appellants   allege   the   court  gave   erroneous            definitions of reasonable doubt in its preliminary remarks to            the jury at the outset of the case, and in  its final charge.            At the  outset, after  defining reasonable doubt  briefly and            correctly, the court added,                                         -9-                      It doesn't mean beyond all possible doubt                      or to an absolute certainty.  Simply more                                                    ___________                      evidence.                      ________            (Emphasis supplied).  In its final instructions, it said,                      It  all  boils   down  to  an   impartial                      consideration  of  all the  evidence, and                      the  evidence  must   leave  you   firmly                                            ___________________                      convinced that a particular  defendant in                      _________                      a given context of a particular charge is                      guilty.            (Emphasis  supplied).   Defendants  took  no exceptions,  but            claim  these particular  statements to  be plain  error under            Federal  Rule of Criminal Procedure 52(b).  We may find plain            error only where there  is a "clear" or "obvious"  error that            affects "substantial  rights."   United States v.  Olano, ___                                             _____________     _____            U.S.  ___,  ___,  113  S.Ct 1770,  1776-78,  123  L.Ed.2d 508            (1993); United States v.  Romero, 32 F.3d 641, 651  (1st Cir.                    _____________     ______            1994).  Granted that an erroneous  charge on reasonable doubt            is  plain error, Sullivan  v. Louisiana, 113  S.Ct. 2078, 124                             ________     _________            L.Ed.2d  182 (1993),  there is  a scope  of language  that is            acceptable.  On the charge as a whole, we hold the words here            fell within that scope.                      Defendants  rely principally  on  United States  v.                                                        _____________            Colon-Pagan, 1  F.3d 80 (1st Cir. 1993).   In Colon the trial            ___________                                   _____            court  had  defined reasonable  doubt  to  mean, among  other            things, "proof of such  a convincing character that a  person            . . .  would be willing to rely and act upon it."  Id. at 81.                                                               ___            Rely on it  under what  circumstances?  A  small matter?   We            found this particular  language clearly  erroneous, since  it                                         -10-            may have  created the  "incorrect impression that  [the jury]            can convict  a defendant in a criminal case upon the basis of            evidence no stronger than might reasonably support a decision            to go shopping or to a movie or to take a  vacation."  Id. at                                                                   ___            81.  However, we declined to hold the same language, with the            addition  that  the  proof   should  be  of  such  convincing            character that the jury  should be willing  to act on it  "in            the  most important decisions that  you have to  make in your            own  lives  and  for  yourselves,"  constituted plain  error.            United States v. Gordon,  634 F.2d 639, 644 (1st  Cir. 1980).            _____________    ______            Although  the charge  in Gordon  was by  no means  ideal, the                                     ______            "convincing" was  sufficiently defined to signal  to the jury            the gravity of its task; in Colon it was meaningless.                                        _____                      We readily distinguish our case from Colon.  First,                                                           _____            the preliminary  charge here was not  affirmatively wrong, it            was merely  incomplete.    The court  made  that  clear,  and            indicated it  would further  explain reasonable doubt  at the            end of the case.   The vague "simply more  evidence" language            the court used to distinguish beyond  a reasonable doubt from            the preponderance  standard is not automatically  fatal here,            as  the court  completed  and amplified  its  remarks on  the            subject in its final charge.                      Our  only  question is  whether,  as  a whole,  the            instructions left the jury  with the correct understanding of            its  responsibility.    Romero,  32  F.3d  at  651-52  (while                                    ______                                         -11-            preliminary statements that  proof beyond a reasonable  doubt            required  "scale" to  "tip  more to  the government's  side,"            taken   alone,  may   suggest   diluted  burden   of   proof,            instructions  as a  whole did  not create  obvious likelihood            jury would be misled).                      In its final charge the court said,                           Remember   what   I   said  at   the                      beginning . . . .  [T]he defendants . . .                      are presumed innocent until proven guilty                      beyond a reasonable doubt.   They had  no                      burden  to  testify  or  to  present  any                      evidence or prove that they are innocent.                      The  government has the burden of proving                      every  element  of  the  charge  or  each                      charge, I guess,  against each  defendant                      beyond  a  reasonable  doubt.    And,  of                      course, if the government fails to do so,                      .  . . you  must return a  verdict of not                      guilty  to  the  particular defendant  or                      charge  that  the  government  failed  to                      prove beyond a reasonable doubt.                           And   what   is  this   business  of                      "reasonable doubt"?  I  gave you, at  the                      beginning,   a  limited   instruction  on                      reasonable  doubt;  and  I  compared  the                      standard  of  the  civil  case  with  the                      standard of a criminal case.                           Now let me tell you more about it. .                      . .  [R]easonable  doubt is a doubt based                      upon  reason  and  common sense  and  may                      arise    from   a    careful,   impartial                      consideration  of all the evidence in the                      case, or  from lack  of evidence.   Proof                      beyond  a reasonable doubt  is proof that                      leaves  you firmly convinced that a given                                  _____________________________                      defendant is guilty of a given charge.                      _____________________________________                           If  after  a  careful and  impartial                      consideration with your fellow  jurors of                      all  the evidence, you  are not convinced                      beyond   a   reasonable   doubt  that   a                      particular  defendant  is  guilty   of  a                                         -12-                      particular  charge,  it is  your  duty to                      find   that   particular  defendant   not                      guilty.                                         -13-                           On   the  other  hand,  if  after  a                      careful and  impartial consideration with                      your  fellow jurors of  all the evidence,                      you  are  convinced, beyond  a reasonable                      doubt, that  the defendant is  guilty, it                      is  your  duty  to  find  the  particular                      defendant  related   to  that  particular                      charge guilty.                           It  all boils  down to  an impartial                      consideration  of  all the  evidence, and                      the  evidence  must   leave  you   firmly                                                         ______                      convinced that a particular  defendant in                      _________________________________________                      a given context of a particular charge is                      _________________________________________                      guilty. (Emphasis supplied.)                      _______                      The  court  expressed  the government's  burden  of            proof  beyond  a reasonable  doubt, neat,  seven times.   Did            summing  it up  by saying  that "it  all boils  down to"  the            evidence must leave the jury  "firmly convinced" of the guilt            of each defendant dilute  its well-hammered instruction?  The            court did not leave the impression,  as it did in Colon, that                                                              _____            members of the jury could convict on the basis of evidence no            stronger than  might convince  them to  go shopping.   Colon-                                                                   ______            Pagan, 1 F.3d at 81.   The jury had to be  "firmly convinced"            _____            that  each  defendant  "is  guilty,"  a  matter  of  ultimate            importance.  We attach weight also to the word "firmly."  The            common meaning of "firm" is "fixed."  We do not consider this            summation  of  the  court's   repeated  articulation  of  the            government's   burden  to  have  improperly  diminished  that            burden.  Cf. United States v. DeMasi, 40 F.3d  1306 (1st Cir.                     ___ _____________    ______            1994);  Romero, 32 F.3d 641; United States v. Glenn, 828 F.2d                    ______               _____________    _____            855 (1st Cir. 1987).                                         -14-                      We  strongly  observe,  as  we  have  before,  that            lengthy  explanations of reasonable  doubt offer little gain,            and much risk.   See,  e.g., United States  v. Olmstead,  832                             ___   ____  _____________     ________            F.2d 642, 645 (1st  Cir. 1987), cert. denied, 486  U.S. 1009,                                            _____ ______            108 S.Ct. 1739, 100  L.Ed.2d 202 (1988).  Solicitude  for the            jury  is understandable, but there is no duty to explain that            phrase,  let alone  to embellish.   Victor  v.  Nebraska, 114                                                ______      ________            S.Ct. 1239 (1994).             III.      Severance            III.      Severance            ___________________                      Velazquez,  Galindez and  Rivera contend  the court            committed reversible  error  in  denying  their  motions  for            severance.2   They  claim  as ground  for  reversal a  highly            prejudicial spillover effect  stemming from the  prosecutor's            relentless emphasis on the shoot-out,  for which none of them            stood charged.3                      Severance  is  warranted  only  when  there   is  a            manifest and serious risk that a "specific  trial right" will                                            ____________________            2.        If it appears that  a defendant . . .  is                      prejudiced  by  a   joinder  .  .   .  of                      defendants . . . for  trial together, the                      court  may .  .  . grant  a severance  of                      defendants,  or  provide  whatever  other                      relief justice requires.            Fed.R.Crim.P. 14.            3.  Velazquez also  contends that  joinder was not  proper to            begin with because he  had nothing to do with  the shoot-out.            As  he  was not  charged with  any  offense arising  from the            shoot-out, and does not contend he was improperly  joined for            trial  on the offenses for which he was charged, we find this            argument without merit.                                         -15-            be compromised,  or that the  jury will be unable  to make "a            reliable  judgment  about guilt  or  innocence."   Zafiro  v.                                                               ______            United States,  113 S.Ct  933, 938  (1993).   District courts            _____________            have wide discretion to decide severance motions, that we are            "reluctant  to secondguess."   United  States v.  Boylan, 898                                           ______________     ______            F.2d 230, 246  (1st Cir.),  cert. denied, 498  U.S. 849,  111                                        _____ ______            S.Ct. 139, 112 L.Ed.2d 106 (1990); United States v. O'Bryant,                                               _____________    ________            998 F.2d 21, 25 (1st  Cir. 1993).  We will interfere  only if            it is "plainly abused."   United States v. Natanel,  938 F.2d                                      _____________    _______            302,  308 (1st Cir. 1991),  cert. denied, 502  U.S. 1079, 112                                        _____ ______            S.Ct. 986, 117 L.Ed.2d 149 (1992).                      Appellants do  not allege  that any specific  trial            right  was   violated,  but  rather  that   the  prosecutor's            overdramatization of the  "bloodbath" prejudicially  affected            the jury's ability to  make a reliable judgment.   They point            to the  acquittal of two original  codefendants whose motions            for severance were successful as evidence of  prejudice.  But            prejudice in  this context  "means more  than  just a  better            chance of acquittal at  a separate trial."  United  States v.                                                        ______________            Pierro, 32 F.3d 611, 615 (1st Cir. 1994) (quoting Boylan, 898            ______                                            ______            F.2d at 246); Zafiro, 113 S.Ct. at 938.                          ______                      While in a trial of multiple defendants the risk of            prejudice is magnified, for  example, "when evidence that the            jury  should not consider against a  defendant and that would            not be admissible if a defendant were tried alone is admitted                                         -16-            against a codefendant," Zafiro, 113 S.Ct at 938, severance is                                    ______            not automatically required.   Id.; Boylan, 898 F.2d at  246.                                           ___  ______            Though none of  the evidence relating to  the shoot-out would            have been admissible had appellants been tried separately, it            was not offered to prove any charges they faced, and there is            no indication  the  jury  considered  it against  them.    We            presume juries  capable of disregarding evidence  where it is            irrelevant   to  the  charges   against  certain  defendants.            Pierro, 32 F.3d at 616.            ______                      Rule 14 leaves  the granting of  any relief to  the            sound  discretion of the district court.  Zafiro, 113 S.Ct at                                                      ______            938.   Limiting  instructions will  often suffice.   Id.   In                                                                 ___            denying the motions, the district court promised to take care            of  any potential prejudice  through appropriate instructions            and,  although  appellants   urge  otherwise,   we  find   it            adequately did  so.4   We are  particularly loathe to  second                                            ____________________            4.  The court's instructions were as follows:                           A separate crime is  charged against                      one or  more of  the  defendants in  each                      count.  The charges have  been joined for                      trial.  You must decide the case for each                      defendant on each  crime charged  against                      that defendant separately.   Your verdict                      on any  count as to  any defendant should                      not control  your  verdict on  any  other                      count or as to any other defendant.                           In  other  words,  the  rule  to  be                      followed is a  separate consideration  of                      each person that is  named as a defendant                      and of  each charge that  appears in  the                      indictment.                                         -17-            guess the district court here, given that the jury manifested            its ability                                          -18-            to  differentiate  the defendants,  and the  evidence against            each,  by returning several acquittals.5  Boylan, 898 F.2d at                                                      ______            246.            IV.       Pretrial Photo Identifications            IV.       Pretrial Photo Identifications            ________________________________________                      Galindez  assigns  as  error the  admission  of two            pretrial photospread identifications, as well as the in-court            identifications  based   on  them.     He  argues   that  the            circumstances  surrounding  the  identifications were  unduly            suggestive, and unreliable.                      Galindez was  first named  in February 1993  as the            person  who exchanged payment with agent Diaz for keys to the            marijuana-laden truck on June 4, 1992.  He was indicted after            agents  Montalvo  and Diaz  separately  identified  him in  a            photospread.  Galindez moved  to suppress the identifications            and a hearing  was held  before a magistrate.   The  district            court  adopted  the magistrate's  recommendation  for denial.            Galindez now appeals.                      A.   Standard of Review                      _______________________                      We "uphold a district court's denial of a motion to            suppress if any reasonable view of the evidence supports it."            United States v. De  Jesus-Rios, 990 F.2d 672, 677  (1st Cir.            _____________    ______________            1993).   See, also, United States v. McLaughlin, 957 F.2d 12,                     ___  ____  _____________    __________            16 (1st Cir. 1992) (collecting  cases).  The district court's                                            ____________________            5.  Both  Rivera  and Galindez  were  acquitted  of the  main            conspiracy charge.                                         -19-            findings  relating  to a  motion to  suppress are  binding on            appeal  unless clearly erroneous.  De Jesus-Rios, 990 F.2d at                                               _____________            677.  See  McLaughlin, 957 F.2d at 17 (collecting  cases).  A                  ___  __________            finding may  be clearly erroneous, however,  even where there            is  evidence to  support it  if "the  reviewing court  on the            entire evidence is left with the definite and firm conviction            that  a mistake  has been  committed."   Id.  (quoting United                                                     ___           ______            States  v. U.S. Gypsum Co., 333 U.S.  364, 395, 68 S.Ct. 525,            ______     _______________            542, 92 L.Ed. 746 (1948)).                      We  employ a  two-part  inquiry:   (1) whether  the            identification  was "impermissibly  suggestive," and,  if so,            (2) whether  the totality  of the circumstances  indicates it            was  nonetheless reliable.   De Jesus-Rios,  990 F.2d  at 677                                         _____________            (collecting cases).  Unreliability  is found only where there            is   "a   very    substantial   likelihood   of   irreparable            misidentification."   Id.  (citations omitted).   See,  e.g.,                                  ___                         ___   ____            United States v. Maguire,  918 F.2d 254, 264 (1st  Cir. 1990)            _____________    _______            ("it is  only  in  extraordinary  cases  that  identification            evidence should  be withheld  from the jury"),  cert. denied,                                                            _____ ______            501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d  1027 (1991).  The            magistrate purported  to apply  this test, and  found neither            suggestiveness  nor  unreliability.   Based  on  the analysis            below, we disagree.                           1.    Suggestiveness                           ____________________                      On   February  8,  1993,  agent  Diaz  inspected  a                                         -20-            photospread built  around a  photograph of Galindez  which an            uninvolved informant  had identified  as the person  he heard            had  made  the money  for  keys  exchange.   Diaz  identified            Galindez  as  the one  with whom  he  had made  the exchange.            Agent Montalvo  was shown  the photospread  the next  day and            also identified Galindez.  Diaz testified that he was ordered            not   to  talk  to  anyone   about  the  photospread  or  his            identification, and that  he did  not do so.   Although  Diaz            continued  to deny it at trial, Montalvo admitted both at the            suppression hearing and at trial to  speaking with Diaz about            the  photospread  after Diaz  had  viewed  it,  but prior  to            examining  it  himself.   The  magistrate's  ruling, although            detailed, inexplicably fails to note and consider this strong            hint of collusion between the identifying agents.  We believe            it  raises  the   possibility  of  suggestiveness,  requiring            examination  of  the  circumstances6  in  order to  determine            whether the ruling can nonetheless stand.                      On  June 4,  1992  Montalvo, along  with two  other            agents,  was  surveilling  the  parking lot  where  Diaz  was            waiting for the exchange.   He could not see Diaz's car,  but            could see as close as five feet surrounding it from about 6'-            8'  higher up  and 35  feet away.   It  was around  noon, and            raining heavily,  when Montalvo  observed a young  black male                                            ____________________            6.  Galindez  does not  suggest, nor  is there  any evidence,            that the  procedure used  was faulty.   We therefore  address            only the circumstances surrounding the identifications.                                         -21-            running toward  Diaz's car.   He disappeared  from Montalvo's            view in  the vicinity of the  car for about 30  to 60 seconds            before  re-emerging  on the  other  side  running toward  the            shopping mall.  Montalvo concluded that this person had  made            the exchange,  even though he  could not observe  it, because            immediately  afterward  a  radio report  confirmed  that  the            exchange had been completed, and because the suspect remained            within  the  small radius  surrounding  Diaz's  car for  much            longer than he would have had he simply continued running by.                      On  June  7  Montalvo  prepared  a  report  of  his            observations.  He  described this suspect as a  young, black,            Hispanic male, about 13-15 years old, wearing a multi-colored            tee-shirt.    The  next  day, during  a  preliminary  hearing            regarding   co-defendant   Pe a,   Montalvo   repeated   this            description.  He  added that he  saw the same  youth a  short            time later  riding as passenger in  the marijuana-laden truck            as  the truck-Volvo-van  convoy  progressed toward  the Monte            Hatillo housing complex.                      Before a grand jury  convened to indict Galindez on            February  10, 1993, the day after identifying Galindez in the            photospread,  Montalvo described  him for  the first  time as            having a long neck.  At the suppression hearing held in April            1993, Montalvo testified that  what caught his attention when            observing the suspect running toward Diaz's car was  his long            neck.   Montalvo then testified at trial that what caught his                                         -22-            eye  at  the  time was  the  suspect's  long  neck and  "very            protruding Adam's apple."  When confronted with the fact that            he had never mentioned the long  neck and Adam's apple in the            report he prepared just three days after the incident nor any            time prior to seeing Galindez' photograph, Montalvo said that            it was  because  the  photo  "refreshed" his  memory.    Both            Montalvo and  the agent  who administered  the identification            procedure  testified that all  six photos in  the spread were            covered up to the  chin -- to assure that  labels identifying            the  persons depicted could not  be seen and  that the photos            appeared  uniform  --  thus  no necks  would  be  observable.            Montalvo  said he  removed  the paper  covering  the neck  of            Galindez's  photograph  after  he   selected  it  but  before            initialling it.                      Evidence   tending   to  strengthen   agent  Diaz's            identification  of Galindez also  materializes only after his            viewing  of the photospread.   Shortly after  the crime, Diaz            was interviewed by an investigating case agent who prepared a            report,  dated  July  20,  1992.   This  report  contains  no            physical description of  this suspect other than that  he was            black  and wearing a black tee shirt with printed letters and            jeans.  Diaz, a Customs agent  for seven years and trained in            identification  techniques, testified that  he did not recall            whether  he had  provided the  investigating agent  with more            than this general  description, but admitted that had he done                                         -23-            so the agent would have reported it.7                      Two   days  after  he   identified  Galindez,  Diaz            testified before  a grand jury  that the feature  he recalled            specifically was a long neck.  At the suppression hearing two            months  later Diaz testified that at the time of the incident            he had  specifically noted the suspect's  long neck, recessed            eyes, big  lips and age between  18 and 22, and  that when he            identified Galindez  he was  certain because he  would "never            forget" the eyes, nose and  mouth.  It then emerged on  cross            examination that Diaz, who was not required to write a report            himself, had  taken  contemporaneous  "rough  notes"  of  his            participation  in the  undercover operation.   These  had not            been provided  to defense  counsel and, despite  his request,            the magistrate refused to hold up the hearing to obtain them.            Defense counsel proceeded  without, and managed to  establish            that  (1) Diaz had reviewed  them before being interviewed by            the  case agent, and  (2) they contained  some description of            the  suspect but Diaz could not recall any details other than            that  he was  black and  wearing a  black printed  tee shirt,            precisely the description contained in the agent's report.                      The prosecutor  produced Diaz's notes on  the first            day of trial, revealing a detailed description of the suspect            as  black, with  brown  eyes, short  hair,  long neck,  heavy                                            ____________________            7.  The agent, Juan Dania, a six year veteran, testified that            it  would have been  his practice to  report all descriptions            provided by the agents he interviewed.                                         -24-            eyebrows  and recessed  eyes, 5'  6-8" and  age 18-22.   Diaz            admitted on cross examination that he had thoroughly reviewed            these  notes before  the  suppression hearing,  yet had  been            unable to  recall anything about them when  questioned by the            defense at that time.  It stretches credulity to believe that            Diaz wrote  contemporaneous notes describing the  suspect as,            among other things, having a long neck and recessed eyes, and            that   several   weeks   later   when  interviewed   by   the            investigating agent,  and  after reviewing  those  notes,  he            provided none of that detail; that  after again reviewing the            notes  for  the  express  purpose  of  testifying  about  his            identification  at the  suppression  hearing,  he  was  again            unable to recall any of their detail; and that when they were            finally revealed at  trial those notes turned  out to contain            the very details tending to confirm the description Diaz gave            for  the first time at  the suppression hearing, and describe            the very features he claimed both at the hearing and at trial            had most impressed him at the time of the incident.                      Viewed  in totality,  the circumstances  indicate a            possibility that Montalvo was influenced by Diaz prior to his            identification of  Galindez, and thereafter both  he and Diaz            supplemented their descriptions to include features prominent            in the photograph.  Although  law enforcement experience is a            factor  that  mitigates  susceptibility   to  suggestiveness,            Maguire,  918  F.2d  at  263,  the  pre-viewing  conversation            _______                                         -25-            between the two agents,  and the apparent post  hoc doctoring            of  both their descriptions,  destroys that presumption here.            The  finding  below,  which  did not  consider  the  improper            conversation, is clearly erroneous.                           2.    Reliability                            __________________                      A finding of suggestiveness, however, only requires            exclusion when  it creates a "very  substantial likelihood of            irreparable misidentification."   De Jesus-Rios, 990 F.2d  at                                              _____________            677 (citations  omitted).  This  prong of the  test questions            "whether  under  the  'totality  of  the  circumstances'  the            identification was  reliable  even though  the  confrontation            procedure was  suggestive."  Neil  v. Biggers, 409  U.S. 188,                                         ____     _______            199 (1972).  The following factors are probative:                      (1) the  opportunity  of the  witness  to                      view  the  criminal at  the  time of  the                      crime;   (2)   the  witness'   degree  of                      attention;  (3)  the   accuracy  of   the                      witness'   prior   description   of   the                      criminal;  (4)  the  level  of  certainty                      demonstrated  by  the   witness  at   the                      confrontation; and (5) the length of time                      between the crime and the confrontation.            De Jesus-Rios, 909 F.2d  at 677 (citing Neil v.  Biggers, 409            _____________                           ____     _______            U.S. at  199-200 (other citations omitted)).   Applying these            factors, we  note, first, that the  record indicates Montalvo            had  but 25 seconds to view the  suspect, in heavy rain, at a            distance of,  at best, 35  feet, and 6-8  feet elevated.   He            admitted his  subsequent viewing of  the same  person in  the            passenger  seat  of  the  truck was  somewhat  obstructed  --                                         -26-            although he claims  he recognized the  tee shirt and  general            appearance --  and  fleeting, as  it  occurred while  he  was            driving his own  vehicle past  the stopped truck.   This  may            have been adequate to observe and note a long neck.   Second,            since Montalvo was assigned to surveillance, we may assume he            was  attentive.   Third, his  reported description  just days            after the events contains  none of the detail that  begins to            appear in  his descriptions subsequent to  speaking with Diaz            and then viewing the  photospread.  Fourth, although it  only            took  Montalvo   several  minutes  to   pick  out  Galindez's            photograph,  he testified  that  he was  confused because  he            remembered  the hair of the person he saw as "coming straight            down," whereas  the photo  depicted Galindez with  very short            hair.                      Finally, eight months elapsed between the crime and            the  identification.    This  Court  has allowed  photospread            identifications  that have  occurred  as much  as five  years            after  the  crime,  but this  has  been  where  other factors            strengthened    considerably    the   reliability    of   the            identification.   See,  e.g., United  States v.  Drougas, 748                              ___   ____  ______________     _______            F.2d  8, 28  (1st Cir.  1984) (five-year  gap was  "very much            greater  than  would ordinarily  be permissible,"  but unlike            most cases, "the witness was not identifying an assailant . .            . he viewed only once under stressful circumstances;"  he was            co-conspirator   who   had  spent   considerable   time  with                                         -27-            defendant).  In Biggers itself, the  Supreme Court noted that                            _______            a  seven month delay would "be a seriously negative factor in            most cases," 409  U.S. at 201, but since the  witness, a rape            victim,  had spent  up to  half an  hour with  her assailant,            under artificial light, and at least twice                                          -28-            "faced him directly  and intimately," the identification  was            allowed.  Id. at 200.                      ___                      In  light  of  the  conversation  between  Diaz and            Montalvo prior  to Montalvo's  viewing  the photospread,  the            alterations  in both  of their  subsequent  descriptions, the            suspicion that  Diaz's "contemporaneous" notes  were composed            after  the fact (and the ease with which the prosecutor could            have cleared up that problem by promptly  providing the notes            to defense  counsel), and the  negative weight of  the third,            fourth and fifth Biggers  factors compels the conclusion that                             _______            at  least Montalvo's  identification was unreliable,  and the            district  court was clearly erroneous in allowing it to go to            the jury.                      B.   Was the  Error  Harmless Beyond  a  Reasonable                      ___________________________________________________            Doubt?            ______                      Next, we assess whether the district  court's error            was harmless beyond a reasonable  doubt.  De Jesus-Rios,  990                                                      _____________            F.2d at  678 (citation omitted).   In overturning  a district            court's   finding  that  a  pretrial  identification,  though            impermissibly  suggestive,  was  nonetheless  reliable,  this            court has  focussed on the inevitable  uncertainty concerning            what  role  the impermissible  identification  played  in the            jury's decision to convict.  De Jesus-Rios, 990 F.2d at 679.                                         _____________                      In De Jesus-Rios, as  here, there were two pretrial                         _____________            identifications, and no  other evidence linking  defendant to                                         -29-            the  crime.8    The   court  found  only  one  identification            unreliable.  In ruling  nonetheless that the district court's            error in admitting both was  not harmless beyond a reasonable            doubt, the court noted that it was possible that the jury had            relied significantly upon the unreliable identification.  The            court was "concerned that the jury may have been persuaded to            convict  by the very fact  that there were  two witnesses who                                                        ___            identified  [the defendant]."  Id.  Here, too, it is possible                                           ___            that the jury rested its decision to convict on the fact that            there were two identifications.  We  cannot conclude beyond a            reasonable  doubt  that   the  district  court's   error  was            harmless.            V.        Delayed Discovery             V.        Delayed Discovery             ____________________________                      Rivera  challenges  the  admission   into  evidence            certain telephone records  revealing calls  between his  line            and those belonging to others involved in the conspiracy that            the  government did not provide until the first day of trial.            The government admitted to possessing some of them as much as            one year before trial.   Rivera reasserts his  argument below            that the government's late disclosure violated Rule 16 of the                                            ____________________            8.  The only other evidence linking Galindez to the crime are            Diaz's notes  containing a description to  which Galindez can            be matched.  The notes cannot be credited.                                         -30-            Federal  Rules  of  Criminal  Procedure9 and  prejudiced  his            defense by  depriving him  of the opportunity  to investigate            the calls.                      We  review  a   district  court's  ruling   on  the            prejudicial  effect  of  a   failure  to  provide   pre-trial            discovery for abuse of discretion.  United States v. Alvarez,                                                _____________    _______            987 F.2d 77,  85 (1st Cir.), cert. denied,  ___ U.S. ___, 114                                         _____ ______            S.Ct.  147,  126   L.Ed.2d  109  (1993);  see   Fed.R.Crim.P.                                                      ___            16(d)(2).   Prejudice  must be  proven to obtain  reversal on            appeal.  Alvarez, 987 F.2d at 85.                     _______                      The  court allowed  the evidence, finding  that the            government did not  act in  bad faith and  that no  prejudice            resulted.  See, e.g., United States v. Nickens, 955 F.2d 112,                       ___  ____  _____________    _______            126  (1st Cir.), cert. denied,  ___ U.S. ___,  113 S.Ct. 108,                             _____ ______            121  L.Ed.2d 66 (1992) (citations  omitted).  We  agree.  The            prejudice  Rivera alleged below  related entirely  to linking                                            ____________________            9.  Rule 16 provides, in pertinent part:                      Upon   request   of  the   defendant  the                      government shall permit the  defendant to                      inspect  and  copy  or photograph  books,                      papers, documents, . . . which are within                      the possession, custody or control of the                      government and which  are material to the                      preparation of the defendant's defense or                      are intended for use by the government as                      evidence in chief at the trial . . .            Fed.R.Crim.  P. 16(a)(1)(C).   Rule  16 imposes  a continuing            duty  to disclose  such  requested  material.   Fed.R.Crim.P.            16(c).  See, e.g., United States v. Tajeddini, 996 F.2d 1278,                    ___  ____  _____________    _________            1287 (1st Cir. 1993).                                         -31-            him to the  conspiracy, for  which he was  acquitted, and  he            proffers  no additional proof  of prejudice on  appeal.  This            verdict itself verifies the court's ruling.                      Rivera   also  challenges  the  admission  of  this            evidence on relevancy grounds.   This contention was not made            to the district court.            VI.       Sufficiency of the Evidence            VI.       Sufficiency of the Evidence            _____________________________________                      All appellants  challenge  the sufficiency  of  the            evidence  by which  they were  convicted, having  made timely            motions  for acquittal  to the  trial court.   On  appeal, we            assess  the  evidence  as  a whole,  taking  "all  reasonable            inferences, in the light most  favorable to the verdict, with            a view to whether a  rational trier of fact could  have found            the  defendant guilty  beyond  a reasonable  doubt."   United                                                                   ______            States v. Vargas, 945 F.2d 426, 427 (1st Cir. 1991) (internal            ______    ______            quotations omitted);  United States  v. Montas, 41  F.3d 775,                                  _____________     ______            778 (1st  Cir.  1994), petition  for cert.  filed, (April  4,                                   __________________________            1995) (No.  94-8798).  We  resolve all credibility  issues in            favor of the verdict.   United States v.  De Jesus Rios,  990                                    _____________     _____________            F.2d at 680.                      A.   Galindez                      _____________                      Although  we  are  awarding  Galindez a  new  trial            because of  an  erroneously admitted  identification,  it  is            still necessary to consider  whether his motion for acquittal            should have been  allowed.  Our  evidentiary ruling leaves  a                                         -32-            viable identification.  A jury might reasonably conclude that            this  identification  alone,  made  by the  agent  who  dealt            directly  and   closely,  if  briefly,   with  the   suspect,            establishes Galindez's guilt beyond a reasonable doubt.                      B.   Pe a                      _________                      Pe a  was   convicted  of  conspiring   to  import,            importing,  and  possessing  with the  intent  to  distribute            controlled substances in violation of 21 U.S.C.    952(a) and            841  (a)(1) (Counts One, Two and Three), using a telephone in            violation of 21  U.S.C.   843(b)  (Count Four), possessing  a            firearm during  commission of  a drug trafficking  offense in            violation of  18 U.S.C.    924(c)(1) (Count Six),  and aiding            and abetting an attempt  to kill three federal agents  in the            line of  duty in violation of 18 U.S.C.    1114 and 2 (Counts            Seven  through Nine).  Although he states a flat challenge to            the evidence on  all counts, we  discern questions only  with            respect  to  the  evidence  for  importation,  possession  of            firearms, and the attempt to kill the agents.                           1.    Importation                            __________________                      Pe a  attempts  to  place  sole  responsibility for            importing the drugs on the  undercover agents involved in the            scheme,  alleging  that it  was  they, not  he,  who actually            brought the marijuana across  the border.  Pe a misinterprets            the  scope of  the crime  of importation.   Importation  of a            controlled  substance is  a  "continuous crime"  that is  not                                         -33-            complete until the  drugs reach  their intended  destination.            United States  v. Leal, 831 F.2d 7, 9 (1st Cir. 1987) (citing            _____________     ____            cases).   Thus  the  fact  that  Pe a  was  not  present  and            physically  involved at  the point of  entry into  the United            States does not absolve  him.  While the outermost  limits of            importation have  never been defined  by this  Court, we  are            satisfied  that the crime was  ongoing when Pe a took custody            of the marijuana, the evidence of which is ample.                           2.    Use of Firearms During  Drug Trafficking                           ______________________________________________            Offense            _______                      Section  924(c)(1) requires the  government to show            that the defendant "used  one or more firearms during  a drug            trafficking  offense."   United States  v. Reyes-Mercado,  22                                     _____________     _____________            F.3d 363, 367  (1st Cir.  1994).10  There  being no  question            that firearms  were thus used,  Pe a claims the  record lacks            evidence that  he used  or possessed  a firearm, actually  or                           __            constructively, or aided anyone in procuring them,  asserting                                            ____________________            10.       Whoever,  during and  in relation  to any                      crime  of  violence  or drug  trafficking                      crime .  . .  uses or carries  a firearm,                      shall,  in  addition  to  the  punishment                      provided   for  such  crime   .  .  .  be                      sentenced to imprisonment for five years,                      and  if the  firearm is  a short-barreled                      rifle,  short-barreled  shotgun . . .  to                      imprisonment  for ten  years, and  if the                      firearm   is   a   machine-gun,    or   a                      destructive device, or is equipped with a                      firearm silencer or  firearm muffler,  to                      imprisonment for thirty years. . . .            18 U.S.C.   924(c)(1).                                         -34-            he did not even know of their presence in  the silhouette van            that                                          -35-            escorted  the   drug-laden  truck   after  he  and   his  co-            conspirators took possession of it.                      The  government contends  Pe a's conviction  can be            upheld  on either  of two  theories:   first, Pe a  aided and            abetted the occupants of  the van in their possession  of the            weapons; second,  he can  be held criminally  accountable for            the  reasonably foreseeable substantive offenses committed by            others  in  furtherance  of  their  joint  criminal  venture.            Pinkerton v. United States,  328 U.S. 640, 66 S.Ct.  1180, 90            _________    _____________            L.Ed. 1489 (1946).11                      One who aids and  abets a crime is punishable  as a            principal.  18 U.S.C.   2; Nye & Nissen v. United States, 336                                       ____________    _____________            U.S.  613, 618-619, 69 S.Ct 766, 769-770, 93 L.Ed. 919 (1949)            ("one  who  aids,  abets,  counsels,  commands,  induces,  or            procures  the commission of an act is as responsible for that            act as  if  he  committed it  directly");  United  States  v.                                                       ______________            Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (acts of principal are            ________            those of aider  and abetter "as a matter of  law").  To prove            liability  as  an accomplice  the  government  must show  the                                            ____________________            11.  The court instructed the jury as follows:                      If one  member of a  conspiracy commits a                      crime in furtherance of a conspiracy, the                      other members have  also, under the  law,                      committed that crime.            This was sufficient.   United  States v.  Alvarado, 898  F.2d                                   ______________     ________            987,  993 (5th Cir. 1990);  United States v.  Gallo, 763 F.2d                                        _____________     _____            1504, 1520 n.23 (6th Cir. 1985), cert. denied, 474 U.S. 1069,                                             _____ ______            106 S.Ct. 828, 88 L.Ed.2d 800 (1986).                                         -36-            defendant associated  himself with a criminal  scheme in some            way, acted so as to  demonstrate his wish to bring  it about,            and sought by  his actions to make it succeed.  Nye & Nissen,                                                            ____________            336 U.S. at 619; United States v. Loder, 23 F.3d  586, 590-91                             _____________    _____            (1st  Cir.  1994).   Criminal  intent  may be  inferred  from            surrounding facts and circumstances.  United States v. Campa,                                                  _____________    _____            679 F.2d 1006,  1010 (1st Cir. 1982). It  is settled that for            an  accomplice   to  be  convicted  under      924(c)(1)  the            government must prove that he knew "to a practical certainty"            that  a firearm would be  used or carried  during a qualified            offense, United  States v.  DeMasi, 40 F.3d  1306, 1316  (1st                     ______________     ______            Cir. 1994);  United States  v. Torres-Maldonado, 14  F.3d 95,                         _____________     ________________            103 (1st Cir.)  (citing cases), cert.  denied, ___ U.S.  ___,                                            _____  ______            115 S.Ct. 193, 130 L.Ed.2d 125 (1994).                      The evidence establishing Pe a's involvement in the            drug importation  conspiracy, as  well as  its size, aim  and            scope supports the conclusion that Pe a aided and abetted the            use  of  firearms  in connection  with  the  transfer  of the            narcotics  into  his  custody.   Pe a  himself  directed  the            exchange  of $30,000 in cash  for keys to  a truck containing            over 9,000 pounds  of marijuana.  He then rode  in the van to            the Monte Hatillo complex to pick  up his car.  A coordinated            convoy  consisting of  the  truck, a  Volvo  driven by  Pe a,            followed  by the van, was later  observed heading back toward            the Monte Hatillo.  The three  vehicles pulled to the side of                                         -37-            the  road  together, and  turned  together  into the  housing            complex moments later.   Both Pe a and the  truck's passenger            were  observed talking  on  cellular telephones.   There  was            evidence  suggesting that  the van was  also equipped  with a            cellular phone  antenna, although activities within could not            be seen due  to its  darkened windows.   Finally, the  convoy            broke up just before the occupants of the van began shooting,            and the truck and Pe a's car rapidly disappeared.                      A  rational jury  could conclude  that the  van was            connected  to and  provided security  for the  operation, and            that Pe a must at least have known that the transaction would            be secured with  arms, and  could expect that  they would  be            used in the event of trouble.  Further, the evidence supports            a conclusion that  the barrage of automatic  weapons fire was            designed to provide cover  for Pe a and the truck  to escape,            and that Pe a  both knew of  and benefitted from  it.  It  is            immaterial  that Pe a did not carry or himself use a firearm,            if he was aware  that firearms were available for  use during            or in relation to  the transaction, DeMasi, 40 F.3d  at 1316,                                                ______            or  if the firearms facilitated the crime or lent him courage            to see it through.  Reyes-Mercado, 22 F.3d at 367.                                _____________                      Because the evidence  is sufficient to support  the            conclusion  that, at the very least, Pe a knew to a practical            certainty  that   the  transaction  would   be  secured  with            firearms, his conviction on count six is affirmed.                                         -38-                                         -39-                           3.    Aiding  and Abetting the Attempt to Kill                           ______________________________________________            the Agents            __________                      The  government  contends   the  same  theories  of            liability support Pe a's convictions  for the attempt to kill            the agents; and  Pe a again seeks to  avoid responsibility by            claiming innocence  of the identities, actions  and intent of            the  occupants of  the van.    There is  no question  that an            attempt  was  made  to  kill  the  agents   during  the  drug            operation; our only concern is whether Pe a aided and abetted            this  attempt, or  whether it  was reasonably  foreseeable to            Pe a that such  an offense might be committed  in furtherance            of the conspiracy.  Pinkerton, 328 U.S. at 648.                                _________                      We hold that the jury could have inferred that Pe a            knew there were  automatic weapons in the  van for protecting            the transfer  of the narcotics,  that Pe a was  in telephonic            contact with the occupants of the van up until moments before            the shooting began,  and that  the ambush of  the agents  was            undertaken with his knowledge, if not pursuant to his orders,            and that  he benefitted by being  able to flee the  scene.  A            rational jury  therefore could  have found that  the evidence            indicated Pe a was associated with the ambush, acted in a way            that  showed his  desire  that  it  succeed, and  shared  the            requisite criminal intent to bear responsibility.  The record            also  supports   the  conclusion  that   it  was   reasonably            foreseeable  to Pe a that the  firearms would be  used in the                                         -40-            event that the  successful completion  of the  drug deal  was            threatened.  United States  v. Bruno, 873 F.2d 555,  560 (2nd                         _____________     _____            Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d                   _____ ______            86 (1989).   Pe a's conviction on  counts seven through  nine            are therefore affirmed.                      C.   Rivera                      ___________                      Rivera was convicted for possession of a controlled            substance  with intent to distribute.  He  claims he is but a            legitimate  businessman whose  tangential involvement  in the            scheme was innocent and unknowing, and that the evidence does            not support the verdict.                      Proof  of criminal  intent or  guilty  knowledge is            essential under 18  U.S.C.    2,12 Campa, 679  F.2d at  1010,                                               _____            otherwise  anyone who brushed a criminal en route to his deed            could  be swept  within the  statute.   See United  States v.                                                    ___ ______________            O'Campo,  973  F.2d 1015,  1020  (1st Cir.  1992).   Rivera's            _______            knowledge and  furtherance of  the conspirators' plan  can be            inferred  from his  providing  a truck  to the  conspirators,            suggesting to its owner that he report it stolen, loaning his            own  money to help  obtain a second truck,  and the fact that            this  truck  ended  up  reported  stolen  shortly  after  the            incident.  Although Rivera  claims that all of this  could be                                            ____________________            12.  It is  immaterial  that the  indictment neither  alleged            aiding  and abetting  nor referred  to 18  U.S.C  2.   United                                                                   ______            States v. Sanchez, 917  F.2d 607, 611 (1st Cir.  1990), cert.            ______    _______                                       _____            denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991).            ______                                         -41-            seen as the  innocent pursuit of  his trucking business,  the            jury acted within its  province in resolving this credibility            issue against him.  Viewed in the light most favorable to the            verdict, the  evidence  is  sufficient  to  sustain  Rivera's            conviction.                      D.   Velazquez                       _______________                      Velazquez  challenges  the sufficiency  of evidence            for all  counts  for which  he was  convicted: conspiracy  to            import marijuana  and cocaine  in violation  of  21 U.S.C.               952(a) (count one); importation  of 9,540 pounds of marijuana            in  violation of 21  U.S.C.   952(a)  (count two); possession            with intent to distribute marijuana in violation of 21 U.S.C.               841(a)(1)  (count  three);  and  use  of  a  telephone  in            violation of 21 U.S.C.   843(b) (count five).                           1.    Conspiracy                            _________________                      Velazquez attacks his conviction on counts  one and            five   by  claiming   the   evidence  showed   two   distinct            conspiracies,   one  failed  effort  before  his  arrest  and            incarceration on  April 30, 1992, and  another conceived only            afterwards.     He   concedes  the   evidence  supports   his            participation  in the  first,13 but  argues that  the second,                                            ____________________            13.  Such   evidence   included   taped   meetings   with   a            confidential  informant  in which  he  participated  in price            negotiations, discussions of secret  code sheets, and made an            agreement  to  pay a  certain sum  for transportation  of the            drugs, as  well as evidence  that he  personally inspected  a            U.S.  Customs  undercover  vessel  for  its  suitability  for            shipment and provided marine charts and code sheets to others                                         -42-            ultimately successful  one, was  formed and carried  out only            after  his arrest by local authorities on April 30, 1992, and            since he was still  incarcerated on June 4, when  this second            scheme  was consummated,  it was impossible  for him  to have            participated in it.  He promotes his two conspiracy theory by            claiming  there were "new players" and  new secret "codes" in            the  second plot, and that about four times as much marijuana            was ultimately imported than he and the original conspirators            contemplated.                      Velazquez makes  this argument for  the first time,            having  conceded the  sufficiency of  evidence to  convict on            count one to the trial court.  "It has long been the practice            in this circuit that  an issue not presented in  the district            court  will not be addressed  for the first  time on appeal."            United States v. Curzi, 867 F.2d  36, 44 (1st Cir. 1989).  We            _____________    _____            discuss  it  only because  he  makes  an essentially  similar            argument  regarding counts two  and three,  which he  did not            concede,  and  it  bears  on the  question  concerning  those            counts.                      Whether multiple conspiracies existed is a question            of fact for the jury.  United States v. Bello-Perez, 977 F.2d                                   _____________    ___________            664,  667 (1st Cir. 1992); United States v. Drougas, 748 F.2d                                       _____________    _______            8,  17 (1st Cir. 1984).   To have proceeded on the assumption            that  a single conspiracy existed in this case, the jury need                                            ____________________            to assist their planning and execution of the deal.                                         -43-            only  have  found that  the  evidence as  a  whole adequately            showed   that   all   the   co-conspirators   "knowingly  and            intentionally   'directed   their    efforts   towards    the            accomplishment of a  common goal or  overall plan' to  commit            the substantive  offense charged."  Bello-Perez,  977 F.2d at                                                ___________            667-668 (quoting Drougas, 748 F.2d at 17).  The jury need not                             _______            have  found   that  they  joined  the   conspiracy  together,            participated  at the same time,  nor even that  they all knew            each other.  Bello-Perez, 977 F.2d at 668 (citing cases).                         ___________                      Save for his own removal by arrest, the only change            of players  was the  replacement of one  of the  government's            agents  after a  first botched  attempt in  March 1992.   The            other players remained and  continued with the original plot.            Nor  does the fact that much more marijuana was imported than            the original negotiations contemplated necessarily cleave the            conspiracy  in two.  The  jury could have  readily found that            new  codes were  issued for  security reasons.   There  is no            reason it could not have found beyond a reasonable doubt that            there  was a  single  conspiracy in  which Velazquez  clearly            played a part.                           2.    Use of Telephone to Facilitate the Crime                           ______________________________________________                      Section  843(b)   makes  it   a  crime  to   use  a            communication  facility, such as  a telephone,  to facilitate            the  commission of a crime such  as importation of controlled            substances.    Velazquez  was   convicted  of  one  count  of                                         -44-            violating    843(b) on the  basis of unrefuted  evidence of a            telephone  conversation  on  March   9,  1992,  in  which  he            discussed   details  of   the   importation  plans   with   a            confidential informant who recorded the call.  He employs the            same two conspiracy theory                                          -45-            to  attack this conviction.   We find the  evidence more than            sufficient to uphold it.                           3.    Importation                            __________________                      Velazquez  attacks his  convictions for  counts two            and three  by claiming his imprisonment  by local authorities            as  of  April 30,  1992 made  it impossible  for him  to have            participated  after  that  time,  and that  evidence  of  his            participation in the conspiracy before  then was insufficient            to  prove  his  guilt  beyond  a  reasonable  doubt  for  the            substantive counts.                      The trial  court was  initially  inclined to  grant            Velazquez's motion  for acquittal  for these two  counts, but            reconsidered.   The government contends that  the evidence is            sufficient to support  his convictions "at least  as an aider            and  abetter."   Velazquez  contends  that  all the  unlawful            actions  comprising counts  two and  three were  committed by            others after his incarceration, and therefore the  government            failed to prove  his involvement  in any of  the elements  of            either offense.                      With   respect   to  his   importation  conviction,            Velazquez  fails  to  understand  the scope  of  the  law  of            conspiracy.   The jury was properly instructed  that a member            of  a conspiracy  is criminally  responsible for  any illegal            acts  of  co-conspirators  committed  in  furtherance  of it.            Pinkerton,  328 U.S.  640; United  States v.  Munoz,  36 F.3d            _________                  ______________     _____                                         -46-            1229, 1234 (1st Cir.  1994), cert. denied, ___ U.S.  ___, 115                                         _____ ______            S.Ct. 1164, 130 L.Ed.2d  1120 (1995).  Thus courts  have held            that the same evidence that supports a defendant's conviction            for conspiracy  to commit a crime may  support his conviction            for  the substantive count, even  where he did  not commit it            himself.  See, e.g., United States v. Salazar, 958 F.2d 1285,                      ___  ____  _____________    _______            1292 (5th Cir.), cert.  denied, ___ U.S. ___, 113  S.Ct. 185,                             _____  ______            121  L.Ed.2d 129 (1992).  As we found the evidence sufficient            to uphold both the  jury's finding of a single  conspiracy to            import  illicit narcotics  in which  both Velazquez  and Pe a            were  at various times involved, and Pe a's conviction on the            substantive count of  importation, Velazquez's conviction for            the substantive count may also stand.14                           4.    Possession                           ________________                      We  cannot  make  the  same simple  assertion  with            respect to Velazquez's conviction for possession of narcotics            with  intent to distribute,  given that he  was not convicted            for  conspiracy  to commit  this  offense.   Velazquez  again                                            ____________________            14.  Velazquez seems to make an argument that his  arrest and            incarceration  effectively removed  him from  the conspiracy.            Where  membership  in a  conspiracy  is  proven, evidence  of            simply ceasing  one's activities  in connection with  it, for            whatever  reason, is  insufficient to  constitute withdrawal.            Munoz, 36 F.3d at 1234.  An affirmative step, such  as a full            _____            confession to authorities or communicating to co-conspirators            abandonment of the  enterprise and its goals,  is required to            avoid  responsibility  for  the  continuing  crimes   of  co-            conspirators.  Id.  Velazquez presented no such evidence, and                           ___            the jury was entitled to surmise that but for his involuntary            removal by arrest, he would have continued.                                         -47-            contends that because he was incarcerated at the time his co-            conspirators possessed  the drugs, it was  impossible for him            to  have been  in  possession himself,  even  constructively,            within the meaning  of 21  U.S.C.   841(a)(1),  nor could  he            have aided and abetted their possession within the meaning of            18 U.S.C.   2.                      Evidence of Velazquez's association, participation,            and  active promotion of  others' possession of  the drugs is            sufficient to sustain his conviction as an aider and abetter.            Nye & Nissen, 336 U.S. at 619.  Velazquez actively associated            ____________            himself  with  a scheme  that  was  specifically designed  to            result in  his possession  and distribution of  a substantial            amount of narcotics by  participating in initial negotiations            over price and amounts  and subsequent meetings and telephone            conversations to  refine details  of the plan,  attempting to            travel  to St.  Maarten  to pick  up  one of  the  suppliers,            supplying a  marine chart, inspecting  an undercover  Customs            vessel for its suitability  for the smuggle, providing a  new            set  of  secret  codes and  a  navigational  device after  an            initial attempt at shipment  failed when the Colombian vessel            carrying  the narcotics  got lost  en route  to Puerto  Rico,            broke  down,  and had  to  jettison its  cargo,  and bringing            others into the scheme.  There was no evidence  he was acting            merely  as  a  facilitator  for  others  with  no  intent  to            participate in  possession and distribution himself.   On the                                         -48-            contrary,  there was  evidence  that 2  kilograms of  cocaine            contained in the first, failed shipment                                          -49-            were  included  specifically  per  his request  and  intended            exclusively for him.                      From this  evidence the jury  could have  concluded            that  possession  and  distribution  of the  drugs  were  the            obvious intended consequences of the plot to import, and that            Velazquez promoted and facilitated that goal.                      The only case  of which we are aware that addressed            a  conviction for  possession by  an inmate  on the  basis of            possession  by   his  at-large  co-conspirators   involved  a            defendant who, while incarcerated, made numerous phone  calls            from prison to his cohorts between the time of his arrest and            their apprehension with a cache  of cocaine and directions to            his  apartment.  United States  v. Disla, 805  F.2d 1340 (9th                             _____________     _____            Cir. 1986).   Although  Disla's conviction for  conspiracy to            possess  cocaine with  intent to  distribute was  upheld, the            court reversed  his  conviction for  the  substantive  count,            holding that evidence he was involved as a conspirator before            his  incarceration could  not  support either  an aiding  and            abetting or a constructive  possession theory of guilt, given            that  there was no evidence Disla did anything to "effect" or            "assist" the actual crime.15  Id. at 1350-52.                                          ___                                            ____________________            15.  The court held  that an inference  that he assisted  the            possession of his cohorts based on the telephone  calls could            not  be drawn because there was no evidence as to the content            of those calls.                                         -50-                      The  Disla  court was  foreclosed  from considering                           _____            Disla liable under  Pinkerton, because the jury had  not been                                _________            given  the requisite  instruction.   Id. at  1350.   Here, as                                                 ___            previously   noted,   the  jury   was   properly  instructed,            consistent with Pinkerton, that a defendant is liable for the                            _________            reasonably foreseeable substantive  offenses committed by co-            conspirators in furtherance of  their joint criminal venture.            We  may therefore also affirm  if possession of  the drugs by            Pe a  and the  other  conspirators was  an  act committed  in            furtherance of their unlawful  agreement to import, such that            Velazquez can be held accountable as a party to the plot.                      As discussed above in relation to Pe a, importation            is  a  continuous  crime  that  does  not  cease  until   the            contraband reaches  its destination.  United  States v. Leal,                                                  ______________    ____            831 F.2d  7, 9 (1st Cir. 1987)  (citing cases).  Whatever its            final destination in  this case, we  are satisfied that  upon            the  conspirators' taking  possession of  the marijuana-laden            truck the crime of importation was still on-going.  See ante.                                                                ___ ____            Thus,  in this  particular  case, possession  with intent  to            distribute  a  large  cache  of marijuana  was  committed  by            Velazquez's co-conspirators in furtherance  of the crime they            conspired  to commit, and although  it is agreed  that he was            incapable  of possessing the  drugs himself while imprisoned,            his  conviction for  the  substantive count  can  nonetheless            stand.                                         -51-            VII.      Prosecutor's Conduct            VII.      Prosecutor's Conduct            ______________________________                      A.   Opening  Statement  and  Presentation  of  the                      ___________________________________________________            Evidence            ________                      Appellants  Rivera  and Galindez  contend  that, by            creating  the  impression  of   a  "planned,"  "ambush   type            situation" designed to kill  the federal agents, and painting            a graphic picture of "raining bullets" that produced a "blood            bath," the  prosecutor  aimed to  raise the  passions of  the            jury.   The crux  of their argument  is that  by stating "the            only  possible  verdict  is that  of  guilty,  because of  an            attempt to kill the  agents," the prosecutor improperly urged            the jury to do justice to the severely wounded  agents.  They            further  point to  the prosecutor's  emphasis throughout  the            trial on the  culmination of the drug scam in  the attempt on            the  agents' lives, tending to  suggest it was  an element of            the conspiracy  for which  they stood  charged.  Neither  was            charged with the attempt to kill the  agents.  They claim the            prosecutor so  inflamed and confused the jury as to seriously            prejudice their right to a fair trial.                      We  begin  by  restating  that it  is  improper  to            suggest to the jury  that it "act in any  capacity other than            as the impartial  arbiter of  the facts."   United States  v.                                                        _____________            Manning, 23 F.3d 570, 573 (1st Cir. 1994).   Appealing to the            _______            jury's emotions  or suggesting in any way that it feel a duty            to convict is error.  Id. (telling jury, "take responsibility                                  ___                                         -52-            for yourselves," "take responsibility for your community" and            "convict the defendant because justice compels conviction" is            error); United States  v. Young,  470 U.S. 1,  17, 105  S.Ct.                    _____________     _____            1038, 1047, 84  L.Ed.2d 1 (1985)  (error to urge jury  to "do            its  job"); United States v. Mandelbaum, 803 F.2d 42, 44 (1st                        _____________    __________            Cir. 1986) (error to urge jury  to "do its duty").  While the            line  separating improper  from  acceptable  behavior in  our            adversary system is "not easily drawn," Young, 470 U.S. at 7,                                                    _____            we   assume  without   deciding  that   to  the   extent  the            prosecutor's comments could be understood to urge the jury to            avenge the injured agents, they were improper.                      Whether  those   comments  warrant  a   new  trial,            however, turns  on whether they likely  affected the outcome.            Manning, 23  F.3d at 574  (citing cases).16   We look  to the            _______            severity of the misconduct, the context in which it occurred,            the  curative effect of the  judge's admonitions, if any, and            the strength  of  the evidence  against the  defendant.   Id.                                                                      ___            (citing cases).                      We  do not find the  factors in this  case compel a            new trial.  An  objection to the statement was  sustained and            the prosecutor did  not repeat  it.  No  remedial action  was                                            ____________________            16.  Although this  line  of  authority  derives  from  cases            recognizing  deterrence  of  prosecutorial misconduct  as  an            additional basis  for reversal, see United  States v. Capone,                                            ___ ________________________            683  F.2d   582,  586  (1st  Cir.1982),   the  Supreme  Court            eliminated  this option where the error  is harmless.  United                                                                   ______            States v. Hasting, 461  U.S. 499, 506, 103 S.Ct.  1974, 1979,            _________________            76 L.Ed.2d 96 (1983).                                         -53-            requested, nor was any  offered -- perhaps a decision  not to            draw attention to the   remark.  See Mandelbaum, 803  F.2d at                                             ___ __________            44 (although urging  jury to "do its duty" was  error, it was            not reversible error).  It was made during opening statements            wherein  it  was  unlikely  to have  had  a  lasting  effect.            Moreover, that Rivera was  acquitted of the conspiracy charge            demonstrates that the  jury was not  so confused or  inflamed            that  it could not  rationally evaluate  the charges  and the            evidence.                      B.   Misstatement of the Evidence in Closing                       _____________________________________________                      Galindez   and   Rivera   allege   the   prosecutor            materially misstated  the evidence  in his closing  argument.            Because we  find Galindez  deserves  a new  trial on  another            ground, we address only Rivera's claim here.                      Rivera objects to the prosecutor's summation of the            evidence  in which he suggested  that Rivera called the owner            of one  of the two trucks  that he had obtained  for Mr. Pe a            and advised him to report it stolen, and that these acts show            knowledge.  Rivera's  attorney did  not object.   On  appeal,            Rivera  points to  the record  which  reveals that  the owner            repeatedly  called Rivera  about  his truck,  and only  after            repeated assurances that  he would  return it as  soon as  it            turned  up  did  Rivera  suggest that  if  the  owner  wasn't            satisfied he should report it stolen.                      Absent   objection,  we  review  for  plain  error.                                         -54-            United States v. Arrieta-Agressot, 3 F.3d  525, 528 (1st Cir.            _____________    ________________            1993).  Except  on rare occasions, a defendant  "who believes            that  a  prosecutor's  closing  argument goes  too  far  must            usually object  to the offending statements when  and as they            are uttered."  United States v. Sepulveda, 15 F.3d 1161, 1186                           _____________    _________            (1st  Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2714,                              _____ ______            129  L.Ed.2d 840 (1994).   Absent objection it  seems fair to            give the arguer the benefit of every plausible interpretation            of her words."  Id. at 1187.                            ___                      The  evidence is  unequivocal,  regardless  of  who            called  whom, that Rivera told the owner he should report his            truck stolen.  Further, Rivera provided him with a false name            and  telephone number  to use in  the stolen  vehicle report.            The evidence also  showed Rivera was involved  in obtaining a            second  truck, the one that  was ultimately used,  and on the            day of the incident he gave  this owner the same advice,  and            shortly after the shooting this truck was reported stolen.                      Although   we   do   not    condone   prosecutorial            distortions of evidence, United States v. Carrasquillo-Plaza,                                     _____________    __________________            873  F.2d 10, 14 (1st  Cir. 1989), the  misstatement here did            not  prejudice Rivera's  right to  a fair  trial.   See, id.;                                                                ___  ___            United  States v. Pasarell, 727 F.2d 13, 16 (1st Cir.), cert.            ______________    ________                              _____            denied,  469 U.S. 826, 105  S.Ct. 107, 83  L.Ed.2d 51 (1984).            ______            Suggesting  that a  truck be  reported stolen,  whether after            pestering or  on  his  own initiative,  could  amount  to  an                                         -55-            attempt to hide guilt, and the jury was entitled to so infer.            The conclusion that Rivera was knowingly involved can readily            be drawn even from the facts as he would present them.            VIII.     Requested  Jury  Instructions  on   Entrapment  and            VIII.     Requested  Jury  Instructions  on   Entrapment  and            _____________________________________________________________                      Coercion                      Coercion                      ________                      Pe a assigns as error  the district court's refusal            to instruct  the  jury  on his  defenses  of  entrapment  and            coercion or duress.  A  defendant is entitled to  instruction            on his theories of defense so long as "any probative material            in the record"  supports them.   United States v.  Rodriguez,                                             _____________     _________            858 F.2d 809, 814 (1st Cir. 1988).  This is a question of law            for the court and review is plenary.  Id. at 812, 814.                                                  ___                      A.   Entrapment                      _______________                      The   entrapment  defense,  like   any  other,  "is            measured  by  the  time-honored  sufficiency  of-the-evidence            yardstick."   Id.  at  814.   Entrapment  has  two  essential                          ___            elements:  (1) government  inducement  to engage  in criminal            activity, and  (2) the defendant's lack  of predisposition to                      ___            engage  in such conduct.  Id. at  812, 814 (citing Mathews v.                                      ___                      __________            United States, 485 U.S. 58, 63, 108 S.Ct 883, 886, 99 L.Ed.2d            _____________            54 (1988)).   Defendant  must produce sufficient  evidence to            support  both  elements.    When  viewed  in  the  light most            favorable to the accused, there  must be some evidence which,            "if believed by a  rational juror, would suffice to  create a            reasonable doubt as to  whether government actors induced the                                         -56-            defendant  to  perform  a  criminal  act   that  he  was  not            predisposed to commit," in order for defendant to be entitled            to the instruction.17  Rodriguez, 858 F.2d at 814.                                   _________                      Pe a claims he repeatedly refused to go on with the            scheme after Velazquez was arrested on April 10, 1992 and the            original undercover  agent was replaced by  another, but that            the latter urged  him to  continue.  The  evidence was  ample            that Pe a  willingly participated in the  conspiracy at least            until then.  He  therefore could not have sustained  the lack            of  predisposition  element  and  was  not  entitled  to  the            instruction.                      B.   Coercion or Duress                      _______________________                      The  district  court  also  denied  instruction  on            Pe a's  alternative  defense  that  he  acted  under  duress,            coerced  by  government  agents  into continuing  a  criminal            venture  which he  wished to  abandon.   For this  defense, a            defendant must  adduce evidence sufficient,  if believed,  to            convince  a  rational  juror  that  (1)  he  acted  under  an            immediate threat of  serious bodily injury  or death, (2)  he            had  a well founded belief  that the threat  would be carried            out,  and (3) he had  no reasonable opportunity  to escape or                  ___            avoid the threat.  United States v. Amparo, 961 F.2d 288, 291                               _____________    ______                                            ____________________            17.  Of course once defendant meets this  entry-level burden,            the  government must prove beyond a  reasonable doubt that no            entrapment occurred.  Rodriguez,  858 F.2d at 815 (collecting                                  _________            cases).                                         -57-            (1st  Cir.), cert. denied, ___  U.S. ___, 113  S.Ct. 224, 121                         _____ ______            L.Ed.2d 161 (1992).                                         -58-                      Pe a  presented  his  own uncorroborated  testimony            that he  refused to  continue negotiations to  consummate the            drug deal once  Velazquez had been incarcerated  and that the            undercover   agent   threatened   his   parents   with   "the            consequences" if he did not.   A threat to injure some  other            person in the future is neither immediate nor unavoidable.                      The conviction of Galindez  is vacated and his case                      ___________________________________________________            is  remanded for a  new trial; the  remaining convictions are            _____________________________________________________________            affirmed.            ________                                         -59-
