94 F.

3d 640

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Juan FERNANDEZ, Defendant-Appellant.
UNITED STATES, Appellant,
v.
Juan FERNANDEZ, Defendant-Appellee.
Nos. 95-1864, 95-2067.

United States Court of Appeals, First Circuit.

Aug. 20, 1996.

John Wall, with whom David Shaughnessy and Wall & Shaughnessy were
on brief for appellant Juan Fernandez.
Lena Watkins, Attorney, Criminal Division, Narcotic and Dangerous Drug
Section, U.S. Department of Justice, with whom John C. Keeney, Acting
Assistant Attorney General, Theresa M.B. Van Vliet, Chief, Criminal
Division, Narcotic and Dangerous Drug Section, U.S. Department of
Justice, and Guillermo Gil, Acting United States Attorney, were on brief
for appellee United States.
John Wall, with whom David Shaughnessy and Wall & Shaughnessy were
on brief for appellant Juan Fernandez.
Lena Watkins, Attorney, Criminal Division, Narcotic and Dangerous Drug
Section, U.S. Department of Justice, with whom John C. Keeney, Acting
Assistant Attorney General, Theresa M.B. Van Vliet, Chief, Criminal
Division, Narcotic and Dangerous Drug Section, U.S. Department of
Justice, and Guillermo Gil, Acting United States Attorney, were on brief
for appellee United States.
Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and
CYR, Circuit Judge.
TORRUELLA, Chief Judge.

A jury found appellant-defendant Juan Fernandez ("Fernandez") guilty of

conspiracy to possess with intent to distribute cocaine, and the United States
District Court, District of Puerto Rico, denied his motion for a new trial.
Fernandez now raises a series of challenges to his conviction, and the
government cross-appeals his sentence. For the reasons stated herein, we
affirm.

BACKGROUND
2

We begin with a basic outline of the case, and address the particulars in more
detail as they arise, as the specific issues Fernandez raises require that we
examine the facts from differing perspectives. Fernandez was one of 20 codefendants charged in Count One of a September 1993 superseding indictment
of conspiring to possess with intent to distribute more than 1,000 kilograms of
cocaine and more than 1,000 kilograms of marijuana in violation of 21 U.S.C.
841(a)(1) & 846. Count One alleged 56 overt acts in furtherance of the
conspiracy (the "Sardinas operation"), beginning in 1981 and continuing over
twelve years.

The central allegation regarding Fernandez was that in or about the month of
April 1991, he entered into an association with co-defendants Jorge LoredoAlonso ("Loredo") and Horacio Sardinas-Albo ("Sardinas") to use Carrier
Transportation Company ("Carrier"), a transportation company which
Fernandez owned, to ship loads of cocaine from Puerto Rico to the continental
United States. The indictment alleged that some nine loads of cocaine had been
shipped through Carrier by early 1993.

Fernandez was tried with co-defendant Antonio Contreras. The evidence

against Fernandez at the jury trial was primarily made up of the testimony of
four alleged co-conspirators: Jose Bruno ("Bruno"), Elmo De Jesus ("De
Jesus"), Michael Frame ("Frame"), and Lambert Aloisi ("Aloisi"). Bruno
testified that nine loads of cocaine were shipped through Carrier, the first seven
between April and August of 1991, and that he visited Carrier's warehouse in
New Jersey several times in connection with those loads. Fernandez' counsel
offered evidence indicating that Carrier did not in fact exist in April 1991, but
rather was incorporated in August 1991, and began its occupation of the
warehouse Bruno identified in October of that year. The prosecution in turn
questioned defense witnesses about Gulf Transportation1 ("Gulf"); according to
the testimony, Gulf was a shipping company at which Fernandez had worked
before he owned Carrier. In its closing argument, the government argued that

Fernandez had used Gulf to transport cocaine prior to using Carrier. Fernandez
was found guilty and was sentenced to 151 months.
DISCUSSION
A. Variance
5

Fernandez argues on appeal that there was a material variance between the
superseding indictment and the evidence on which the government relied at
trial.2 We find a variance "when the proof differs from the allegations in the
indictment." United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir.1993). Not
every variance mandates a new trial: reversal is only required if the variance
proves both material and prejudicial. See Fed.R.Crim.P. 52(a); United States v.
Arcadipane, 41 F.3d 1, 6 (1st Cir.1994). Thus, where, as here, "the government
charges a defendant with a crime ... but the facts proven at trial vary somewhat
from those charged in the indictment ... it is settled law that a conviction for the
crime charged will be affirmed unless the variance as to the facts is shown to
have prejudiced the defendant." United States v. Moran, 984 F.2d 1299, 1304
(1st Cir.1993). Our review of whether a retrial is required is plenary.
Arcadipane, 41 F.3d at 6.

The superseding indictment specifically stated that Fernandez used Carrier to

transport cocaine.3 The government's case was consistent with this theory.
Thus, Fernandez maintains, while Carrier was neither a defendant nor an object
of the indictment, it was nonetheless a key part of the government's case.
However, Fernandez continues, when he offered evidence in his defense which
refuted the charges concerning Carrier by proving that it could not have been
used as alleged in the superseding indictment, the government abruptly
switched gears and argued that Fernandez used Gulf. The prejudice against
him, Fernandez contends, was obvious: his trial preparations, which had
centered around Carrier, were no longer adequate, since Gulf became the focus
of the trial and the jury's deliberations.

We do not find such "obvious" prejudice; nor do we agree that Gulf became the
focus of the trial and deliberations. We recognize that there was a variance, but
do not believe it "work[ed] a substantial interference with the defendant's right
to be informed of the charges laid at his doorstep." Arcadipane, 41 F.3d at 6.
Simply put, although Carrier was repeatedly mentioned in the indictment, the
charge was against Fernandez, not his company. Regardless of whether Carrier
or Gulf is discussed, the charge is the same: that Fernandez associated with
Sardinas and Loredo to transport cocaine. Fernandez cannot now claim that he
was misinformed of the charges against him, or that his substantial rights were

somehow affected. See id. at 7. A new trial is not required.

B. Admission of the Evidence
1. Gulf
8

Fernandez contends that the district court erred in allowing evidence and
argument regarding Gulf. We review a lower court's admission of evidence for
abuse of discretion. See, e.g., United States v. Disanto, 1996 WL 312368, * 11
(1st Cir.1996); United States v. Rivera-Gomez, 67 F.3d 993, 997 (1st
Cir.1995).

Testimony regarding Gulf was elicited by the government, over Fernandez'

objection, during its cross-examination of defense witness Rosa Sanjurjo, an
employee in Carrier's collection department. She stated that she began working
for Carrier in January of 1992, prior to which she worked for Gulf until 1990.
She acknowledged that Fernandez had also worked for Gulf, that it did the
same type of business as Carrier, and that it closed before Carrier was created.
She also stated that Gulf did not become Carrier. On redirect, Fernandez'
counsel elicited her testimony that Gulf was a corporation controlled by
Fernandez and two other individuals, including Sanjurjo's stepson. She stated
on recross that Carrier and Gulf had different offices and used different
warehouses. George Wyle, a salesman for Carrier for part of 1992, testified on
cross that he knew Fernandez through the shipping business prior to 1992, that
Fernandez was involved with Gulf, that Gulf did essentially the same kind of
business that Carrier did, and that Gulf's full name was Gulf Carrier.

10

After the first few questions to Sanjurjo about Gulf, defense counsel objected to
the cross-examination on Gulf as being outside the scope of examination; the
court allowed the prosecution to continue, but asking questions on direct,
instead of on cross. After a few more questions, defense counsel asked for a
sidebar, and objected that the questioning was outside the scope of the
testimony and the entire case. The prosecutor argued that the evidence was
being used for impeachment, pointing out that since Fernandez was arguing
that it was impossible that Carrier could have been used, the evidence on Gulf
would show that even before Carrier started Fernandez was in the same line of
business, at a company which operated in essentially the same fashion, offering
Fernandez access to shipping services, albeit under a different name. The court
denied Fernandez' objection.

11

Before closing arguments, Fernandez' counsel raised the issue of whether the
government should be allowed to make reference to Gulf in its closing

argument. Defense counsel protested that the government was trying to make
an inference not based on the evidence, since there was no evidence regarding
whether Gulf and Carrier had a similar identity, or when Fernandez was
involved with Gulf. Indeed, counsel noted, the testimony indicated no
continuity of ownership between the companies, and that they used different
facilities. The court, however, rejected the defense's argument and allowed the
government to discuss Gulf in its closing argument.
12

Fernandez now argues that the district court erred in allowing evidence and
argument regarding Gulf. He does not specify his reasons, however. Rather, he
simply refers us to the reasons stated in his additional arguments, leaving us to
speculate as to which reasons would apply in this context, and running the risk
of waiver. As we address those contentions where they are made, we add only
a few comments here.

13

Briefly stated, while it could have decided the issue several different ways, we
find that the district court did not abuse its discretion in choosing to allow the
government to elicit and use the evidence regarding Gulf. While not detailed,
the evidence was certainly relevant, for the very reasons the government
outlined. See Fed.R.Evid. 401; United States v. Griffin, 818 F.2d 97, 101-02
(1st Cir.), cert. denied, 484 U.S. 844 (1987) (noting the broad discretion district
courts enjoy in determining relevance). Allowing the line of questioning and
argument was neither unfairly prejudicial, see Fed.R.Evid. 403, nor constituted
an unfair surprise: Fernandez' defense was that it was impossible for him to
have used Carrier to ship cocaine because Carrier was not in operation--a line of
reasoning fairly inviting the question of what other companies Fernandez had
access to during the relevant time period, and whether he could have used them
in a similar manner.

2. Sixth Amendment Claims

14

Fernandez contends that his Sixth Amendment right of confrontation has been
violated, in that he did not have a full and effective opportunity to crossexamine the witnesses. See Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per
curiam) (noting that the right of confrontation "includes the right to conduct
reasonable cross-examination"). As we find no error on the part of the district
court, we need not enter into a harmless error analysis. See id. at 232; Delaware
v. Van Arsdall, 475 U.S. 673, 680-81 (1986).

15

First, Bruno and two other witnesses testified that a Puerto Rico senator was
implicated in the conspiracy: they alleged that in 1990, when other members of
the conspiracy were arrested in Tortola, the senator attempted to gain their

release. Bruno testified that the senator received close to two hundred fifty
thousand dollars in order to bribe the magistrate handling the case in the British
Virgin Islands, as well as other individuals. Another witness testified that he
believed the senator had met with representatives of the Sardinas operation in
the Puerto Rico Senate--the witness claimed that he waited in the car outside
while they met.
16

At trial, the court ruled in limine that counsel could not mention the senator's
name. Fernandez argues that this constituted error requiring a new trial. First,
he contends that identification of the senator's name could have "tipped the
balance" in the impeachment of Bruno by showing that he would go to any
lengths to obstruct justice, and thus should not be believed in his testimony at
trial. Second, he posits that identification could have led the jury to believe that
the account of the senator's involvement in the Tortola events was fabricated by
witnesses in order to gain leniency from the government, because of the
prominence and importance of the particular senator. Thus, the argument goes,
the identification would have added to the evidence that the witnesses were
fabricating stories in a desperate attempt to obtain leniency. Finally, Fernandez
maintains that members of the jury could have felt that the failure to prosecute
the senator was unfair selective prosecution.

17

We do not find any of these arguments convincing. There can be no question

that the Sixth Amendment entails a right to cross examine a witness;
nonetheless, "trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination
[regarding potential bias] based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant." Van Arsdall, 475
U.S. at 679; see Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)
("Generally speaking, the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish."). The court informed the
jury that it had ruled that the name of the senator "would not be mentioned in
order to protect an ongoing investigation with respect to activities that he may
have been engaged in." Tr. at 515. The jury was also informed that the parties
stipulated that the senator was "prominent." Further, as noted above, the scope
of the senator's alleged actions was explored through testimony from several
witnesses: the sole element the court ordered be left out was the senator's name.
Certainly the jury had enough information in front of it to be able to weigh the
impeachment value of the alleged plot: it had "the facts from which jurors, as
the sole triers of fact and credibility, could appropriately draw inferences
relating to the reliability of the witness." Davis v. Alaska, 415 U.S. 308, 318

(1974). As for the selective prosecution claim, we note that the court told the
jury there was an ongoing investigation: the implication that the senator had not
been charged is clear. We do not find any error in the district court's ruling.
18

The second claim focuses on the De Jesus cross-examination. He testified that

he assisted in the transportation of more than 1,000 kilograms of cocaine, yet
his plea agreement stated that he was responsible for only 3.5 to 5 kilograms.
The prosecution objected to defense's questioning on this discrepancy, and the
court sustained the objection. The court ruled that the defense could not crossexamine De Jesus regarding the quantity of cocaine for which he was held
accountable in his plea agreement, but could question him on the difference the
agreement made in his sentence. De Jesus duly testified that without the plea he
faced from thirty years to life, and that with it, he was facing seven years. He
agreed that by testifying in this case, he was hoping to have the sentence further
reduced so as to not have to spend any time in jail.

19

Fernandez argues that the court erred, since any proof of false, self-serving
statements by a government witness--such as the plea agreement figure--would
aid the defense in showing the witnesses' untrustworthiness. Thus, Fernandez
contends, his Sixth Amendment right of confrontation was violated. See Olden,
488 U.S. at 231. We disagree. First, defense counsel was able to impeach De
Jesus through eliciting his testimony on the impact the plea agreement had on
his sentence and his hopes for a reduced sentence based on his participation in
this trial. Second, the court's ruling seems to have been based on the concern
that the jury understand that De Jesus was not actually lying in his plea
agreement, but rather that the figure used was a mechanism of convenience in
order to get to a specific sentence: "I think the whole concept is to show ... [that
it was a] deal, a wow deal, but not to show that he's a liar because that's not the
real facts." Tr. at 1879. We do not find that the district court erred in striking a
balance between this concern and the importance of impeachment through
limiting the testimony to the sentence obtained. Indeed, we agree with the
court's comment to the effect that to do otherwise would run the risk of having
defense counsel impeach the government, not De Jesus.

20

Fernandez' reliance on United States v. Lynn, 856 F.2d 430 (1st Cir.1988), is
misplaced. There, we found that the trial court erred in restricting crossexamination into the circumstances underlying a witness' plea bargain. The
witness' agreement with the government required that he take and "successfully
complete" a polygraph examination. He took the test, twice, and the examiner
labeled some of his answers as "inconclusive." The defense sought to impeach
the witness by implying that the witness had not "successfully completed" the
test, and so had motive to lie on the stand to please the government. The court

cut off all questioning about the test, and informed the jury that such tests
yielded inherently unreliable results. Id. at 432. We held that the district court
abused its discretion by cutting off all cross-examination into a "relevant and
not fully explored area." Id. at 434. The same is not true here. The district court
did not cut off all examination in the area of De Jesus' credibility: rather, it set
limits on the examination so as to permit the introduction of the information in
a manner which would not mislead the jury yet provide it "with 'sufficient
information concerning formative events to make a "discriminating appraisal"
of [De Jesus'] motives and bias.' " Id. at 433 ( quoting United States v.
Twomey, 806 F.2d 1136, 1140 (1st Cir.1986) ( quoting United States v.
Campbell, 426 F.2d 547, 550 (2d Cir.1970))).
C. The Sufficiency and Weight of the Evidence
21
1. Sufficiency of the Evidence
22

At the end of the presentation of evidence, Fernandez moved for a judgment of

acquittal, which motion the trial court denied. Fernandez now argues anew that
the evidence was insufficient to support his conspiracy conviction.

23

We are cognizant of the government's burden in this case: "In order to win a
conspiracy conviction the government was required to establish, by direct or
circumstantial evidence and beyond a reasonable doubt, that the defendant and
one or more coconspirators 'intended to agree and ... to commit the substantive
criminal offense which was the object of their unlawful agreement.' " United
States v. Lopez, 944 F.2d 33, 39 (1st Cir.1991) (quoting United States v.
Sanchez, 917 F.2d 607, 610 (1st Cir.1990), cert. denied, 499 U.S. 977 (1991)).
In our review, we evaluate the sufficiency of the evidence as a whole, and
"resolve credibility issues and draw inferences in the government's favor, since
the issue is whether a jury could reasonably have arrived at the verdict." United
States v. Morrow, 39 F.3d 1228, 1233 (1st Cir.1994), cert. denied, --- U.S. ----,
115 S.Ct. 1421 (1995).

24

Fernandez contends that the evidence in this case was insufficient to prove his
guilt, since there was no direct testimony of any agreement. However, the
government need not prove a formal agreement existed: as it points out, "the
illegal agreement may be either 'express or tacit.' " United States v. Sanchez,
917 F.2d 607, 610 (1st Cir.1990). Indeed, " '[t]he evidence may be entirely
circumstantial and need not exclude every reasonable hypothesis of innocence;
that is, the factfinder may decide among reasonable interpretations of the
evidence.' " Lopez, 944 F.2d at 39 (quoting United States v. Batista-Polanco,
927 F.2d 14, 17 (1st Cir.1991)).

25

We agree with the government that, under our standard of review, Bruno's
testimony, and that of other government witnesses, suffices to show that a tacit
agreement existed. Bruno testified that Sardinas and Loredo each paid $80,000
to buy into Carrier in order to ship cocaine; he stated that he saw them collect
the money to make a payment to Fernandez, and heard them discussing the use
of Carrier. Bruno testified about sending the nine shipments of cocaine, and
about Fernandez' personal participation in the operation, including telephone
calls and meetings. He stated that he went to the Carrier warehouse in New
Jersey, his first visit being in July 1991, and that Fernandez was there on at
least one occasion. Aloisi's testimony generally corroborated Bruno's
statements. De Jesus testified that he participated in at least four shipments of
cocaine, including deliveries of cocaine to Fernandez at a warehouse in
Carolina, Puerto Rico, and retrieval from the New Jersey warehouse. His
testimony contradicted Bruno's on several points, regarding the amount of
cocaine in particular loads and who participated in specific meetings and
loads.4 Our review of this record leads us to conclude that, "having heard the
evidence, including nuances and intimations that a cold record cannot capture,
a rational jury could find beyond a reasonable doubt that [Fernandez] was
guilty of conspiracy." Moran, 984 F.2d at 1301-02.

26

Fernandez also argues that this court must reverse the verdict below because it
was physically impossible that Carrier was the company used to transport
cocaine in 1991: he presented evidence that Carrier did not exist until after
April 1991, and that it did not occupy the New Jersey warehouse until October
of that year. Since the chief government witnesses testified that Carrier was
used, the argument continues, there is no reason to credit the witnesses'
testimony as to this point, or any other. Thus, Fernandez concludes that the trial
court erred in not granting his motion for acquittal.

27

While there were inconsistencies in the witnesses' testimony, and while they all
had an incentive to please the government, these aspects of the evidence were
pointed out to the jury by defense counsel. As the government notes, Bruno and
De Jesus did not go to any warehouse for the first loads--indeed, Bruno testified
that Carrier had previously had a different address--and the evidence regarding
Gulf suggests that Fernandez had knowledge of and access to shipping facilities
during the relevant time frame. It was within the province of the jury to
disregard some of the inconsistencies and to accept aspects of the witnesses'
testimony as credible. "The force of the evidence as a whole, including all
reasonable inferences favorable to the verdict, was sufficient to support a
rational jury finding: that defendant was guilty." Lopez, 944 F.2d at 40.

2. Weight of the Evidence

28

29

Fernandez also contends that the jury verdict was against the weight of the
evidence, and that the district court erred in denying his motion for a new trial.
Fernandez argues that the government's case here was wholly circumstantial
and rested solely on the testimony of blatantly untrustworthy witnesses, as
demonstrated by the many contradictions between their stories and Fernandez'
evidence that Carrier had not occupied a warehouse until October 1991. The
evidence regarding Gulf, he continues, is insufficient to support the eleventhhour claim that Fernandez used it.
We review for abuse of discretion, see, e.g., United States v. Rogers, 41 F.3d
25, 34 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2287 (1995), and
reject Fernandez' argument. The evidence against Fernandez, briefly outlined
above, was neither unbelievable nor implausible, as he contends. Simply put,
the witnesses' testimony was not "so inherently implausible that it could not be
believed by a reasonable juror." United States v. Garcia, 978 F.2d 746, 748 (1st
Cir.1992) (per curiam ). We accordingly find that the district court did not
abuse its discretion in denying Fernandez' motion for a new trial, and refuse to
take the issue of the witnesses' credibility out of the jury's hands. The jurors
were entitled to weigh the witnesses' contradictions and incentives and still
accept the substance of their testimony. See id.

D. Prosecutorial Misconduct
1. The Legal Framework
30

Fernandez' primary argument is that the prosecutor violated his due process
rights by making improper statements to the jury during the government's
closing argument and rebuttal. See Berger v. United States, 295 U.S. 78, 88-89
(1935). He contends that any one of the statements he now points to as
improper could have prejudiced the jury so as to have prevented a fair trial, and
that the cumulative effect of the statements was to deny him a fair trial under
the Fifth Amendment. See United States v. Santana-Camacho, 833 F.2d 371,
373 (1st Cir.1987) (noting that, while a statement on its own may not have been
harmful, it is "more troublesome" when viewed in conjunction with other
prosecutorial statements). For the reasons we discuss below, we disagree.

31

When faced with a claim of prosecutorial misconduct, we first weigh whether a

statement was improper. If it was, we then determine "whether prosecutorial
misconduct has ' "so poisoned the well" ' that a new trial is required." United
States v. Manning, 23 F.3d 570, 574 (1st Cir.1994) (quoting United States v.
Hodge-Balwing, 952 F.2d 607, 610 (1st Cir.1991) (quoting United States v.
Capone, 683 F.2d 582, 586-87 (1st Cir.1982))). This circuit has laid out a series

of factors for guidance in making that determination:

32 the severity of the misconduct; (2) the context in which it occurred; (3) whether
(1)
the judge gave any curative instructions and the likely effect of such instructions;
and (4) the strength of the evidence against the defendant.
33

Id.; see, e.g., United States v. Hardy, 37 F.3d 753, 757-58 (1st Cir.1994). In this
analysis,

34 do not ... take the evidence in the light most favorable to the government or
[w]e
assume that credibility issues were resolved in its favor. The jury may well have
decided the issues in favor of the government, but that jury decision may itself be
tainted by the improper remarks. Thus we will look at the evidence as a whole....
35

Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir.1993); see Hardy,
37 F.3d at 755.

36

We review the sole statement Fernandez objected to at trial de novo. Hardy, 37

F.3d at 756. He did not object to the majority of statements he now points to as
violating his due process rights: we review those for plain error, as "
[r]eviewing courts are very reluctant to reverse for unobjected-to errors that
could have been corrected or ameliorated by timely objection." United States v.
Procopio, Nos. 95-1549, -1559, -1550, slip op. at 25 (1st Cir. July 9, 1996); see
Arrieta-Agressot, 3 F.3d at 528 (explaining rationale behind applying plain
error review). "[T]he plain-error exception is to be 'used sparingly, solely in
those circumstances in which a miscarriage of justice would otherwise result.' "
United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady,
456 U.S. 152, 163 n. 14 (1982), reh'g denied, 456 U.S. 1001 (1982)).

37

With our test and standard of review thus established, we turn to Fernandez'
specific contentions.

2. Statements Objected to at Trial

38

(1) During trial, a lease application filled out by Loredo in November, 1991,
which stated that he had worked for Carrier for six years--well before the time
the defense argued Carrier began to exist--was admitted for the limited purpose
of showing that Loredo claimed he worked for Carrier, not for the truth of the
matters in the document. Fernandez now contends that the prosecutor went
beyond that limited purpose in his closing argument. Referring to the
application, the prosecutor stated:

39 remember, as you look at it here, there is a part ... where he's supposed to or he
You
has to list his employer. His list what [sic]? Carrier Transportation. Just Carrier
Transportation as his employer....
40

And most importantly, he said he was working for that company for six years.
Six years. The phone numbers are right. The address is right. Working for the
company, he says, for six years. This is proof that there was a Carrier
Transportation that operated before the date that counsel--

41

Tr. at 2472. The prosecutor was cut off by the defense's objection.

42

We agree with Fernandez that the prosecutor was moving beyond the
stipulation to assert that the lease application was "proof that there was a
Carrier Transportation that operated before the date" the defense alleged it
began business. Thus, we turn to our four-factor test. We note that the
misconduct, though disingenuous, was not severe, and occurred only once, in
relative isolation. More importantly, the court gave immediate curative
instructions, admonishing the jury that the lease did not come in as anything
more than a claim by Loredo to have worked for Carrier, and reminding them
of its earlier instruction, made when the lease application was entered. Indeed,
in its closing, the defense also reminded the jury of the limited use of the lease.
On balance, we find that "the curative instruction sufficed to dispel any
prejudice from the improper comment." United States v. Boldt, 929 F.2d 35, 41
(1st Cir.1991); see United States v. Savarese, 649 F.2d 83, 88 (1st Cir.1981).

43

(2) Fernandez objects to other references the prosecution made to Gulf on the
basis that they encouraged speculation and attempted to argue facts not
presented in the evidence.5 First, the prosecutor stated:

44 had to wait for cross-examination by [co-counsel for the government] to find out
we
that there was a previous company before 1992, in fact from 1986 it had started,
which did the exact same type of job. It had--it was a shipping company that did
transportation in the same manner, through the containers and Mr. Juan Fernandez
was also one of the owners or partners in the operation.
45

Tr. at 2475. Like Fernandez, we can find no evidence in the record stating that
Gulf began in 1986. The offer of this fact is harmless, however, since the
pertinent time period is 1991, and Sanjurjo testified that Gulf was in operation
in 1990. The reference leaves open the crucial question, which is, when Gulf
ceased operation. As for the form in which the prosecutor made his statement,
it is consistent with the framework the government used for its argument,

discussed in (1), above.

46

Fernandez objects to the cited passage and four others for asserting that Carrier
and Gulf were essentially the same thing, doing the exact same job:

47 argument is that before, when the company was operating as Gulf Carrier
[O]ur
Transportation he used another warehouse in New Jersey.
48

... [It] was known as Gulf Carrier, also. Gulf Carrier just like--the same name,
just slightly different wording and same owners, same business, same thing.

49

Tr. at 2476. These statements, he contends, urged the jury to speculate in a

manner unsupported and contradicted by the actual evidence regarding Gulf.
There was evidence that they were both transportation companies, but not that
they did the exact same job. Indeed, the owners were not the same: Fernandez
was part owner of Gulf, and the sole owner of Carrier. Finally, there was no
evidence that Gulf was actually in business in 1991.

50

On balance, we cannot find that this line of argument so poisoned the trial well
that a new trial is required. See Manning, 23 F.3d at 574. The government
made an argument based on the limited evidence regarding Gulf. The defense
was able to argue the counter position, pointing out the lack of evidence, and
did so.

3. Statements Not Objected to at Trial

51

We examine the statements which Fernandez did not object to at trial in the
order in which he raised them. We find that most are not improper; of the few
that are, none of them prove so serious that the district court plainly erred in
allowing them.

52

(1) Fernandez first argues that the prosecutor erred by trying to "secure the
empathy of the jury" through asking it to step into the government's shoes and
align itself with the prosecution team through statements like the following.

53 the way I would like to discuss the evidence with you is in the order that we
Now,
received it. Okay. The way we were interviewing these witnesses, in that order, to
give you a feel for what we went through as you determine whether we have proven,
as we submit to you we have, beyond a reasonable doubt the existence of the
conspiracy and their participation....
54

Tr. at 2443. The prosecutor made a series of comments such as "[w]e seek [co-

54

Tr. at 2443. The prosecutor made a series of comments such as "[w]e seek [coconspirators or drug traffickers] out and we go out and corroborate them." Tr. at
2442. We agree with the government, however, that, read in context, the
statements Fernandez points to were simply establishing a framework for the
presentation of the government's argument. They also served to point out that
even though the government's witnesses were drug traffickers with a motive to
fabricate evidence--as defense counsel had emphasized in opening argument-their testimony was corroborated. Indeed, in the first passage quoted above, the
prosecution reminded the jury that it carried the duty of determining whether
the government proved its case. While we do not necessarily recommend this
framework for argument as an ideal one, we do not find that the statements
were improper.

55

(2) Fernandez' second argument is that the prosecutor misstated the law on
proof of conspiracy in making the following statements:

56 only way we can prove a conspiracy is through the testimony of the very cothe
conspirators who were members of that conspiracy.
57

Tr. at 2441.

58
you're
always going to need the testimony of the co-conspirator to prove a
conspiracy because of the secrecy of the conspiracy.
59

Tr. at 2442.

60

You're never going to find a decent person testifying to a drug deal. That's what
we got to deal with. That's what we got to do.

61

Tr. 2571-72. Contrary to appellant's assertion, these are arguments, not

statements of fact, and are thus permissible.

62

Even if they were improper, they would not require a new trial. For, viewed in
context, it is clear that they did not poison the trial proceeding. In his opening
statement, Fernandez' counsel had emphasized the fact that no actual drugs
were offered in evidence: the challenged comments were apparently designed to
counter those statements with an explanation of why the government relied so
heavily on witness testimony. The first two statements are addressed to the
practical difficulties of proving a conspiracy. The prosecutor followed the first
with an explanation of why the government did not introduce any actual drugs.
Further, the prosecutor followed up these comments with a discussion of the
importance of documentary evidence in corroborating witnesses' testimony,

belying his own comments. As for the "decent person" comment, its logical
flaws are obvious. Moreover, defense counsel had emphasized the witnesses'
dishonesty in his opening,6 to which this is apparently a response. These
statements do not warrant a new trial.
63

(3) The prosecutor made two statements to the jury to the effect that "[t]o
acquit, you would have to find that everybody was lying in this case." Tr. at
2590-91. Fernandez argues, and the government seems to agree, that these were
improper. To the contrary, we feel they amounted to nothing more than
argument, and were not improper.

64

(4) Fernandez' fourth contention is that the prosecutor made statements without
evidentiary support. See Santana-Camacho, 833 F.2d at 373 (reversing
conviction on basis of major and prejudicial misstatement of evidence in
closing argument). The prosecutor erroneously stated that the testifying drug
traffickers were "either in jail or go to [sic] jail," Tr. at 2442, and that Bruno
specifically would be going to jail when, in fact, Aloisi had a non-prosecution
agreement, and Bruno was not incarcerated at the time of trial. Again, the
government acknowledges that the statements were not factually true. We agree
with the government, however, that any error in admitting these statements does
not rise to the level of plain error. The agreements between the government and
the witnesses were in evidence, each of the four witnesses against Fernandez
testified about his agreement with the government, defense counsel reminded
the jury of their agreements in his closing argument, and the judge instructed
the jurors that counsel's argument did not constitute evidence, but that their
recollection of the facts controlled. Cf. United States v. Innamorati, 996 F.2d
456, 482 (1st Cir.) (finding no clear error where prosecution stated "that the
trial judge alone would determine the sentences for each of the cooperating
witnesses, and that the jury therefore should not think that the witnesses were
getting 'a walk' " where, in fact, the government had dismissed charges against
many of the witnesses and had promised to make motions for downward
departures), cert. denied sub nom. DeMarco v. United States, 510 U.S. 955
(1993).

65

(5) Fernandez points out that the government made a second misstatement of
the evidence by arguing that the payment which the two lead conspirators were
alleged to have given Fernandez in order to buy into Carrier was "not an over
the counter deal" but rather "a criminal association. It [was] a paper bag with
eighty thousand dollars." Tr. at 2575. The government acknowledges that the
paper bag details pertain to a different transaction, not involving Fernandez.
The misstatement is troublesome in its characterization of the transaction, the
details of which were not in evidence. However, between the brevity and

isolation of the misstatement, the court's later instruction to the jury that their
memory controlled, and defense counsel's failure to make a timely objection,
Fernandez cannot clear the plain error hurdle.
66

(6) Next, Fernandez alleges that in his rebuttal argument the prosecutor
provided information to contradict the testimony of a witness at trial. Without
specifying what that information is, he cites the following passage discussing
the testimony of Enrique Nieves ("Nieves"), Special Agent with the Drug
Enforcement Administration.

67

Now, the other thing with Mr. Nieves. He said that there was a search warrant
served on or about the time Mr. Fernandez was indicted. And that's false. You
recall the testimony, that was the search warrant was at an unrelated warehouse
of Mr. Velasco before we had any knowledge of the fact that they were using
Carrier Transportation at the time of the first indictment. That's when that
search warrant was served and that's when we were going after Mr. Velasco
who was in the first indictment. So the fact that that search warrant was served
and nothing was found, we were not after Mr. Juan Fernandez's business at the
time because we didn't know about it.

68

Tr. at 2578.

69

Examination of the record sheds some light on the passage. First, the depiction
of Nieves' testimony is correct: the warrant was for an unrelated warehouse,
prior to any suspicion that the warehouse Carrier used was involved, and was
served following the first indictment, which did not name Fernandez. Second,
the "he" of "he said that there was a search warrant served" seems to refer not to
Nieves, but to Fernandez' counsel. The latter had stated in his closing that
Nieves testified that in September 1993--the time of the first indictment--he had
testified at a bond hearing that a specific warehouse used by Carrier was not
involved with the Sardinas operation. Defense counsel also referred to the
search warrant for a different warehouse. It would seem that the prosecution
blurred the line between the reference to the bond hearing and the search
warrant and attributed the date given for the first to the second. While perhaps
an error, it does not constitute the presentation of information to contradict the
testimony of a witness at trial. Since Fernandez did not see fit to actually
specify what element of the passage presented new information, and we see
none ourselves, we find no plain error on the part of the district court in
allowing the statement.

70

(7) The prosecutor's statement that "[t]hey could be doing additional loads

besides the ones that Mr. Bruno was aware," Tr. at 2465-66, was not improper
speculation, since it was made in the context of the prosecutor noting that De
Jesus' testimony was that Bruno was not always involved in the transportation
of loads of cocaine, and so the government was not always sure what number a
load was: "they probably skipped the fifth and this is the sixth load, or it could
be a totally different load. We don't know." Tr. at 2465. Even if the statement
could be construed as improper speculation, Fernandez again fails to clear the
hurdle of the four factors and prove that there was plain error on the part of the
district court.
71

(8) Similarly, Fernandez contends that the prosecutor improperly generalized

about his experiences in stating that

72 on some minor details there is a lot of corroboration in this case, which is

even
unusual. You will usually have little corroboration in that aspect, but even on details,
as I go through the evidence I'll mention them, there is corroboration.
73

Tr. at 2444. See United States v. Rosa, 705 F.2d 1375, 1379 (1st Cir.1983) ("It
is settled law in this circuit that a prosecutor may not inject into his jury
argument his personal opinions about conclusions to be drawn from the
evidence."). The prosecutor made this statement in the context of encouraging
the jury to recognize that the presence of some inconsistencies in witness
testimony does not preclude granting them credence. This statement falls
somewhere on the spectrum between proper and improper argument. However,
even assuming it was improper, we cannot find that it is so severe as to warrant
a mistrial. In truth, the prosecutor was telling the jury what it probably already
knows: that there will likely be differences in the stories told by two people
recounting an event that occurred years earlier.

74

Fernandez makes the similar contention that the prosecution twice vouched for
the credibility of prosecution witnesses by telling the jury that the witnesses
were telling the truth because they did not get together to concoct a totally
consistent story; the fact that their story was not totally consistent, the
prosecution argued, reveals that "the only other alternative is that ... they were
telling the truth and that the impeachment that they have been able to make to
you is, I submit, as to details." Tr. at 2591. We agree with the government that
these remarks amount to asking the jury to make common sense conclusions
from the evidence.

75 line between the legitimate argument that a witness's testimony is credible and
The
improper "vouching" is often a hazy one, to be policed by the trial court in the first
instance.... Here, at worst the challenged remarks ... fell in the grey area.

[Defendant] did not object to the remarks at trial when a curative instruction might
have been given, and we think that is the end of the matter.
76

Innamorati, 996 F.2d at 483 (dismissing challenge to prosecution statements

that the testimony was well corroborated and "as a result, you know that the
witness's testimony is true").

77

(9) There, is, however, no question that the prosecutor improperly injected
himself into the argument in the next statement Fernandez challenges:

78 who wrote the statement of facts? We wrote the statements of facts. So, the big
And
mistake about Panama. You know who made it? I made it. Does that mean that
they're not guilty? Does that mean that it wasn't from Venezuela that the SEA
SEARCH came[?] No, it's a mistake I made. So, I should carry it.
79

Tr. at 2576. The prosecutor apparently made this statement in direct rebuttal to
co-defendant's counsel, who highlighted--literally--a statement in De Jesus' plea
agreement which indicated that the shipload of cocaine with which the codefendant was allegedly involved came from Panama, while the indictment
maintained it was Venezuela, without mentioning Panama. Given this context,
the relative isolation of the statement, and the judge's instructions to the jury
that their memory of the testimony controlled, this misconduct does not require
a new trial, especially in light of our standard of review. See Young, 470 U.S.
at 11-14 (discussing the "invited response" rule).

80

(10) We also dismiss Fernandez' contention that four statements made by the
prosecution were generalizing about drug traffickers without evidentiary
support. Each of these statements was to the effect of "that's the way drug
dealers think." The statements were argument, and did not rise to plain error.

81

(11) Fernandez next challenges the prosecutor's reference to Fernandez'

purported motive--greed and need for money--and argues that there was no
evidence in the case on this point. Nonetheless, the statement is clearly proper:
as the government notes, it is essentially a viable interpretation of the evidence.
Indeed, the prosecutor followed the statements Fernandez now challenges by
pointing to the testimony that, at least initially, Fernandez received two hundred
dollars for each kilogram of cocaine transported--a clear financial incentive. Cf.
United States v. Tajeddini, 996 F.2d 1278, 1285-86 (1st Cir.1993) (finding that,
where the prosecutor did not deliberately misrepresent defendant's financial
situation, where there was a financial incentive, and where defendant did not
object at trial, prosecution statement that crime was motivated by payment was

proper).
82

(12) Fernandez points to two references to the lease application discussed in

section (2), above, as error. The first, when read in context, appears to be citing
to other evidence to support the conclusion that Fernandez sought to conceal
the earlier existence of Carrier:

I83submit to [sic] as a fact that [Sanjurjo] should have known [whether Loredo started
working after she started working] and the fact that she did not want to answer to
you should be proof that Mr. Loredo was in fact working before that, as he claimed
on his application.
84

Tr. at 2475. The prosecutor is offering Sanjurjo's testimony as proof, not the
application.

85

The prosecution also referred to the application in its rebuttal.

86
[Defense
Counsel] tells you that Jorge Loredo was looking for a part time job with
Carrier Transportation Services. Well, look at the lease agreement. Look at the cars
he list[s] as his property. In 1991 red Ferrari ... [and] a 1990 Range Rover. Black
one. Is that a car of somebody who needs a second job to make ends meet [?] No,
ladies and gentlemen of the jury, he wasn't looking for any part time job. He had a
full time job and that was trafficking drugs, trafficking cocaine. With who? With his
partner Juan Fernandez.
87

Tr. at 2575. On balance, we do not find that the lease application was submitted
for the proposition that Carrier existed prior to when the defense asserted it
began. Rather, the cited passage suggests that Loredo had no need for a parttime job, but that he already had one with Carrier. The evidence indicated that
in November, 1991, the date of the lease agreement, Carrier had already been
incorporated and had leased a warehouse in New Jersey. The reference to
Carrier seems to have been to the November 1991 status, not Loredo's claim to
have held a position there for 6 years.7 Even if this reading is incorrect,
however, and this was an improper reference, its admission was simply not
plain error.

88

(13) Fernandez contends that on three occasions the government improperly

alluded to the fact that he did not testify. "A prosecutor's comment is improper
where, under the circumstances of the case, 'the language used was manifestly
intended or was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to testify.' " Hardy, 37
F.3d at 757 (quoting United States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert.

denied, 482 U.S. 929 (1987)). None of the statements Fernandez points to in
this context meet this test.
89

First, in his rebuttal, the prosecutor referred to Gulf as the "other company that
we didn't know they had, which at the beginning they didn't tell us about." Tr.
at 2580. Read in context, it is clear that the jury would not "naturally and
necessarily" take this as a comment on Fernandez' failure to testify, because the
prosecutor is in fact referring to the premise that the evidence introduced about
Carrier does not prove anything about Gulf. We note that the statement does not
indicate that Fernandez did not tell the government about Gulf, rather, that
"they "--the witnesses--did not tell it about Gulf. Second, the prosecutor argued
that there was "no other explanation" for the fact that three witnesses had
Fernandez' phone number "except that they were involved with him." Tr. at
2472. Third, the prosecution argued against the defense position that
Fernandez' association with Loredo and Frame was an innocent one, positing
that knowing three drug traffickers could hardly be a coincidence, and that "the
only explanation" presented before the jury was a criminal association between
the men.

90

We find that neither statement meets the "naturally and necessarily" criteria.
Although Fernandez would presumably have been able to testify as to these
things, so would the other witnesses. "Where arguably favorable evidence other
than the defendant's own testimony is available to him, comment upon his
failure to produce it may be justified." United States v. Sardelli, 813 F.2d 654,
657 (5th Cir.1987). Indeed, defense counsel argued in his closing that the
dissemination of Fernandez' phone numbers and his associations with codefendants were innocent. We find no plain error in the court's allowance of
these statements. See Procopio, slip. op. at 23-25.

91

(14) Fernandez also contends that the government improperly tried to shift the
burden of proof to the defense. The first cited statement asked: "Why would the
defense be hiding the fact or they to portray [sic] the fact that Mr. Loredo
started working for Carrier after 1992, if he started before[?]" Tr. at 2580. From
the statement's context, it is apparent that this is a rebuttal to defense counsel's
claim that Loredo's business card from Carrier dated from 1992: the
prosecution counters that the business card had no date. The second statement
cited pointed out that on direct examination Sanjurjo testified that Carrier
started in 1992, adding:

92 then we had to wait for cross examination by Mr. Pagel to find out that there
But
was a previous company before 1992, in fact from 1986 it had started, which did the
exact same type of job ... and Mr. Juan Fernandez was also one of the owners or

partners in the corporation.

93

[Sanjurjo] denied at that point that the corporation was named Gulf Carrier or
had Carrier in its name. We found that out through another witness at a later
time.

94

Tr. at 2474-75. These comments are in keeping with the general structure of the
prosecution's argument, discussed above, pointing out who testified what about
Carrier and Gulf.

95

We find that these statements did not shift the burden of proof onto the
defendant. On balance, any subtle implication that the burden of proof had
shifted would have been mitigated by the court's instructions--as well as those
of the prosecution and defense--regarding the burden of proof. While not
necessarily ideal, the cited statements did not amount to reversible error under
our standard of review.

96

(15) Fernandez points to four statements made in the government's rebuttal

which are more troubling:

97 second reason [why the prosecution has an opportunity for rebuttal] is, to help
The
you see through this smoke screen that the defense always tries to raise to confuse
you.
98

Tr. at 2574.

99 how desperate [the defense is], look at the argument they're making to try to
look
escape what is obvious to everybody.
100 Tr. at 2577.
101 fact is, we do have enough evidence. The evidence beyond a reasonable doubt.
The
They're just trying to confuse you. Don't allow them to be confusing.
Tr. at 2585. Finally:
102 Their argument, really is that we cannot use these drug traffickers, the
witnesses who were their friends and their associates, to convict. That's what
they're saying. Well, ladies and gentlemen, that is an important weapon, an
important tool in law enforcement, to deprive of us the ability to do that is [sic]
to deal a hard blow to law enforcement....

103 ...
104 Now, these criminals, drug traffickers in general, think that they commit the
crime and nobody catches them at that time, or the people who saw them were
other drug traffickers that then they're home free. But unfortunately, for all
these drug traffickers, including Mr. Contreras and Mr. Juan Fernandez, that's
not the way it works. Because we in the law enforcement community, the
people who you see sitting [at] this table, the agents that you saw testifying
before you, they didn't give up. They kept on investigating and they didn't
catch them when it happened, but they kept investigating and they kept
catching other criminals and they were able to build a case around them.
Because we have other means, other methods in which to investigate and to
present cases to you.
105 And I submit to you that this is another way to present the case. And it also
shows beyond a reasonable doubt that these defendants are guilty. So, they
thought they had gotten away with their crimes when they committed them.
The agents kept, they didn't give up, they kept investigating.
106 I ask you now don't give you up [sic] on us now. They thought they had gotten
away with their crime. Don't you let them get away with their crime today.
107 Tr. at 2590-92.
108 We do not doubt that these statements constituted improper argument. See, e.g.,
Boldt, 929 F.2d at 40 (improper to comment on "favorite defense tactic");
Hardy, 37 F.3d at 757 (finding prosecution argument that defendants, who did
not testify, were "still running and hiding" improper). Thus we turn to our four
factors. First, regarding severity, while the misconduct is real, it is not as severe
as some which we have previously found improper. See, e.g., Arrieta-Agressot,
3 F.3d at 527 (holding it improper to argue, inter alia, that "the defendants are
not soldiers in the army of good. They are soldiers in the army of evil, in the
army which only purpose [sic] is to poison, to disrupt, to corrupt"). In terms of
the context, the government argues that these were isolated comments.
However, the fact that the prosecutor made multiple, albeit brief, statements
disparaging the role of the defense convinces us that they were not isolated
comments. Indeed, the prosecutor ended his rebuttal shortly after finishing the
last statement, enhancing its impression on the jury. As for any corrective
instructions, Fernandez did not object to any of the statements. Finally, we note
that the evidence against Fernandez was adequate, but not overwhelming.

109 In the end, although it is a close call, Fernandez does not prevail on this point.
Because he made no objection at trial, Fernandez "must show that the improper
remarks likely infected the jury (affected 'substantial rights' in Olano 's words)
and mere possibilities are not enough." Procopio, slip op. at 26. Simply put,
there was not much substance to the statements: while they were improper
disparagement of the role of defense counsel, we do not see how they alone
could have created " 'circumstances in which a miscarriage of justice would
otherwise result.' " Young, 470 U.S. at 15 (quoting Frady, 456 U.S. at 163 n.
14); see Procopio, slip op. at 28-29 (stating that it was "unrealistic to suggest
that ... empty cliches" that the defense arguments were "illusions" and "smoke
screens" would have affected the jury's verdict).
4. The Cumulative Effect
110 There are many reasons why defense counsel would choose not to make every
possible objection during the government's closing argument. However, there is
a cost to that strategy: most of the statements Fernandez now proffers as
misconduct are reviewed under the deferential plain error standard. We have
found, under that standard, that although various of the statements were indeed
improper, they did not so poison the well that a new trial is mandated. Having
reviewed the record and the closing arguments, we find the same is true as for
their cumulative effect. Only the statements impugning the role of the defense
give us real pause; nonetheless, even considering all the points where the
prosecution's argument fell below the mark, we do not feel that a jury would
have been improperly swayed by the argument. Nonetheless, we add that we
are concerned by the sheer quantity of errors, however minor, in this case. The
prosecution should weigh carefully its words when it next approaches the floor
for argument. See id. at 29 (noting that "a pattern of faults does suggest a
failure in supervision").
E. Fernandez' Sentence
111 At sentencing, the court granted Fernandez a downward adjustment for being a
minor participant in the conspiracy. See U.S.S.G. 3B1.2(b). The government
now argues on cross-appeal that the facts of the case do not support that
adjustment. We review the district court's factual determinations for clear error,
granting due deference to the trial court's application of the guideline to the
facts. See United States v. Graciani, 61 F.3d 70, 75 (1st Cir.1995); United
States v. Thompson, 32 F.3d 1, 4 (1st Cir.1994).
112 Section 3B1.2(b) offers a reduction to "any participant who is less culpable than
most other participants, but whose role could not be described as minimal."

U.S.S.G. 3B1.2 (comment. n. 3). Of course, the mere fact that Fernandez may
be less culpable than others involved in the conspiracy does not automatically
entitle him to a reduction. See United States v. Daniel, 962 F.2d 100, 103 (1st
Cir.1992). "Role-in-the-offense adjustments depend ... not only on the
comparative conduct of persons jointly engaged in criminal activity, but also on
comparing each offender's actions and relative culpability with the elements of
the offense." United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.1990).
113 The district court granted the adjustment on the basis that Fernandez' role was
"limited in essence to looking the other way ... while his company was used to
transport the narcotics," and that he "played a part in the overall conspiracy that
makes him less culpable than that of the average participant." Sentencing
Hearing at 29-30. The court made no more detailed findings.
114 The government contends that the evidence does not support the district court's
findings. It points out that the evidence indicated that Fernandez joined the
conspiracy, secured a large payment from Sardinas and Loredo at the outset,
and received additional payment for the transportation of the cocaine, albeit a
payment smaller than Sardinas'. According to the witnesses, he attended
meetings, made his employees available to help, bribed a gatekeeper, and
personally handled shipments. Additionally, Frame's testimony was that
Fernandez acted as liaison to Sardinas with respect to marijuana and cocaine
shipments. All this, topped with the district court's failure to make specific
factual findings, the government contends, demonstrates that the court clearly
erred in finding that Fernandez was entitled to the minor role adjustment.
Finally, the argument concludes, the fact that the court made no specific
findings as to witness credibility or Fernandez' role precludes reliance on cases
upholding a district court's credibility determination at sentencing, see, e.g.,
United States v. Webster, 54 F.3d 1, 5 (1st Cir.1995), or Fernandez' argument
that a plausible view of the evidence supports the district court's minor role
determination.
115 The district court's failure to find more than the basic facts at sentencing lends a
certain awkwardness to this case. Nonetheless, we disagree with the
government's argument that the evidence presented at trial precludes granting
the adjustment. Fernandez went to meetings, accepted money, and, if the
witnesses' testimony is credible, knew what was going on. However, there was
no evidence that he was in contact with the suppliers and receivers of the
cocaine that the Sardinas organization transported, either in the New York area
or in Memphis, or that he negotiated those deals or instructed the workers.
Bruno testified that Fernandez attended a series of meetings, but did not testify
that Fernandez ran those meetings, told Bruno what to do, or otherwise served

as the organizer of the conspiracy. While we do not think that Fernandez'

entitlement to the downward adjustment was a foregone conclusion, we cannot,
on this record, find that it was plain error for the lower court to apply it. The
district court found that Fernandez established that he was less culpable than
most other participants in the conspiracy, and so was entitled to the adjustment.
"In this instance, it would be foolhardy to second-guess the sentencing judge,
given his superior coign of vantage." Ocasio, 914 F.2d at 333.
CONCLUSION
116 For the reasons stated herein, we affirm.

The defendant refers to Gulf as "Gulf Transportation," while the government

uses "Gulf Carrier Transportation." We express no opinion as to which name is
more accurate, and use "Gulf" for convenience

Fernandez' motion for a bill of particulars, which included a request for

discovery of other transportation companies utilized by Sardinas, was denied by
the court

Paragraph 28 of the superseding indictment charged that "[o]n or about the

month of April, 1991, HORACIO SARDINAS-ALBO, a/k/a/ HIPPIE, and
JORGE ALONSO-LOREDO [sic] associated with JUAN FERNANDEZ to use
the services of Carrier Transportation Company, a transportation company
owned by JUAN FERNANDEZ, to transport large amounts of cocaine from
Puerto Rico to the continental United States using containers." The following
paragraphs detailed the nine alleged shipments of cocaine

Frame testified that Fernandez was already active in the operation in 1989 or
1990 and that he was instructed to communicate with Fernandez whenever he
needed to contact Sardinas, which he did several times. These allegations were
not in the superseding indictment

Fernandez objected to the prosecution's being allowed to use Gulf in its closing.
However, his counsel did not object when the court held that the prosecution
could "tell it to the jury." Tr. at 2438. The government points out that
Fernandez did not make specific objections to these references to Gulf during
closing argument, presumably asking us to review them under the more lenient
plain error standard. As we find no error under either standard, we need not
determine here whether the objection was preserved

For example, in his opening statement, Fernandez' counsel stated:

And the evidence is that these drug pushers have consistently taken the easy
way out of everything that is meaningful in life....
... [T]he evidence will show that they have no conscious [sic] that will prevent
them--the kind of consciousness that would prevent most people from accusing
an innocent man. They simply only care about themselves.... They always have
and they always will. Leopards don't change their spots.
Tr. at 105-06.
7

Indeed, the lease application may have been cited for a reason wholly unrelated
to the Carrier employment claim: in it, Loredo reported that he owned a home
in Puerto Rico, which would support the prosecution's contention that Loredo's
material possessions--a house, two expensive cars--did not indicate that he
needed a second job to make ends meet. The prosecution made no direct
reference to that claim, however