               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 04-1069

                             UNITED STATES,

                                Appellee,

                                     v.

                  HÉCTOR LUIS MÁRQUEZ-FIGUEROA,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Salvador E. Casellas, U. S. District Judge]


                                  Before

                       Boudin, Chief Judge,
              Torruella and Selya, Circuit Judges.



     Carlos Gabriel Santiago-Morales on Anders brief.
     Héctor Luis Márquez-Figueroa on brief pro se.


                              July 6, 2006
     Per Curiam. Defendant's counsel has submitted a brief under

Anders v. California, 386 U.S. 738 (1967), which we construe as a

motion to withdraw.       Defendant has filed a pro se supplemental

brief.   After careful review of the record and these submissions,

we conclude that the appeal presents no non-frivolous issues.           We,

therefore, grant the motion to withdraw. We comment briefly on the

issues raised in defendant's pro se brief.

     Two of the issues were also raised by co-defendant Rafael

Pagán Santini and were fully disposed of in that appeal.             First,

defendant claims, as did Pagán, that the government violated his

due process rights when it obtained his conviction by knowingly

eliciting false testimony from Yamil Kourí Pérez regarding his

jailing in Cuba.      We held, "There is no indication on the present

facts that the government's eliciting of the political prisoner

story involved the knowing use of false testimony."          United States

v. Pagán-Santini, No. 03-2574, slip op. at 12 (1st Cir. June 14,

2006).   That determination dooms defendant's claim.         We also find,

as we did in Pagán, that there is no reasonable likelihood the

allegedly false testimony affected the outcome.             As we noted in

Pagán, the cause of Kourí's jailing in Cuba "was only marginally

relevant   to   his   credibility,"   and    there   was   other   testimony

supporting defendant's conviction.          Second, defendant claims, as

did Pagán, that the trial court abused its discretion by failing to

give their requested "missing witness" instruction with respect to


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Dr. Gloria Ornelas.   We held there was no abuse of discretion.   Id.

at 17.   And, as with Pagán, there is no indication that defendant

even attempted to call Ornelas to testify, further undermining the

requested instruction.   Id.

     Defendant also argues his indictment was invalid because it

was obtained by the use of testimony known by the prosecution to be

false.   He acknowledges that the government "has no obligation to

present exculpatory evidence" to the grand jury, but argues that

the government "provided half-truths as well as outright false

testimony" to the grand jury because it did not present testimony

by other witnesses "which contradicted significant portions of the

testimony of the government's key witness, Dr. Yamil Kouri."      The

fact that witnesses contradicted each other in certain respects

does not indicate that the prosecution knowingly presented false

testimony to the grand jury.   United States v. Casas, 425 F.3d 23,

38 (1st Cir. 2005).      Moreover, "[a]n indictment returned by a

legally constituted and unbiased grand jury is not subject to

challenge on the ground that the grand jury acted on the basis of

inadequate or incompetent evidence."    Id. (citations and internal

quotation marks omitted).

     Defendant next challenges the validity of his conviction by

arguing that the government "watched in silence" while Dr. Roberto

Unda Gomez committed perjury.     Defendant does not identify the

alleged perjury.   Presumably he is referring to Unda's admission


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that he accepted and spent a $5,000 cash bribe from Kourí, even

though Unda lied about the cash while testifying as a government

witness at Kourí's trial.         To the extent defendant is arguing that

the prosecution should have indicted Unda for perjury, the trial

court corrected ruled that it is an issue for the prosecution to

decide.      United States v. Nixon, 418 U.S. 683, 693 (1974) (noting

that   "Executive       Branch   has    exclusive    authority   and   absolute

discretion to decide whether to prosecute a case").                And to the

extent defendant is arguing that the prosecution allowed the

presentation of false testimony, his contention is belied by the

record.

       Defendant also argues that the government allowed Kourí to

testify falsely on certain matters.                He states that (1) Kourí

testified that defendant prepared the phony backdated contracts,

while other witnesses testified otherwise, and (2) Kourí testified

that defendant prepared questions and answers for Héctor Ramírez

Lugo and helped him prepare for his testimony, while Ramírez

testified that Kourí wrote the questions and coached him.                    Even

taking defendant's characterization of the trial testimony as true,

the government is not prohibited from calling witnesses who present

conflicting stories. Casas, 425 F.3d at 45. "[S]uch conflicts are

a   matter    to   be    explored      on    cross-examination   ...   and    the

credibility of each account is for the jury to determine."                   Id.

Defendant's counsel explored these inconsistencies at trial, and it


                                            -4-
appears    defendant    was   aided,     rather    than   prejudiced,     by   the

conflicting     testimony.        He   was    acquitted   of    the   substantive

offenses of (1) making false declarations to the grand jury by

denying that he prepared the phony backdated contracts, and (2)

suborning Ramírez to commit perjury, thus demonstrating that the

contradictory testimony likely undermined Kourí's credibility on

these points.

      Defendant next argues that his conspiracy conviction must be

vacated because it is inconsistent with his acquittal of the

substantive charges underlying the conspiracy.                  He contends that

the conspiracy and substantive counts "are so interwoven with each

other, as to establish one common set of facts applicable to all

counts."      (Emphasis omitted.)      This claim was properly rejected by

the   trial    court   in   denying    defendant's    motion     to   vacate   the

verdict. As the lower court noted, in a single, multi-count trial,

acquittal on one count does not preclude conviction on another

court based upon the same evidence, as long as that evidence is

legally sufficient to support a finding of guilt on the count of

conviction.      See United States v. Powell, 469 U.S. 57, 66 (1984).

There was ample evidence here to sustain the conspiracy conviction.

Moreover, as the court noted, the jury's verdict is not logically

inconsistent     because    the    offense     elements   are    different.     A

reasonable jury could have found defendant guilty of willfully

participating in the conspiracy without finding that defendant


                                        -5-
committed any of the overt acts himself.

     Defendant's   final   argument    is   that   the   court   erred   in

determining the facts underlying the enhancement to his sentence.

"This argument is defeated by Booker, which permits enhancements

based on judge-found facts with advisory guidelines."              United

States v. Lata, 415 F.3d 107, 110 (1st Cir. 2005) (citations

omitted).

     Accordingly, the judgment of the district court is affirmed.

     Defendant's second motion for the appointment of new counsel

is denied as moot.




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