USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1350
UNITED STATES,
Appellee,
v.
FREDERICK FERMIN ORTIZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Barry P. Wilson for appellant.

_______________
Geoffrey E. Hobart, Assistant United States Attorney, with w
___________________
Donald K. Stern, United States Attorney, and R. Bradford Bail
_________________
_________________
Assistant United States Attorney, were on brief for appellee.
____________________
May 5, 1994
____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________
appellant Frederick Fermin Ortiz
grounds,

his

convictions

possess cocaine with intent

of

cocaine

with

intent

and

In this appeal,

defendant-

challenges, on a variety of
sentence

for

conspiracy to

to distribute and for possession

to distribute.

After

considering defendant's arguments, we affirm.

I.
I.
__
BACKGROUND AND PRIOR PROCEEDINGS

carefully

BACKGROUND AND PRIOR PROCEEDINGS

________________________________
As is

always the case when

considering a criminal

defendant's challenge to his/her conviction, we interpret the

record

in a

light most

e.g., United States

____ _____________

amenable to

v. Ortiz,
_____

the government.

966 F.2d 707,

See,
___

710 (1st

Cir.

1992), cert. denied, 113 S. Ct. 1005 (1993).

_____ ______
On February 4, 1992,
enforcement agents,

acting

several federal and local law

in

response

to a

tip

from

reliable informant, were conducting surveillance of a singlefamily

house

located

Massachusetts.
codefendants
DeJesus

at

These
Walter

its garage.

Glen

Ellen Road

agents observed defendant,

DeJesus Zapata

Escobar-Vegara

individuals), moving

25

("Escobar")1

casually in

("Zapata")
(and

Lowell,

along with
and William

several

and around this

A Ford Taurus was parked in the

in

other

house and

garage with its

____________________
1. The trial record reflects, and
defendant's counsel
confirmed at oral argument, that contrary to the more
prevalent Hispanic custom, defendant and his codefendants
prefer that the last of their given names be used as
surnames.
-22

hood and
Zapata

doors open.

Although the agents at

one point saw

and Escobar enter the Taurus and begin tugging at the

vehicle's

back seat, at no time did they see anyone actually

doing any work under the car's hood.

At

approximately

2:00

occupied by two unidentified

A

group of

individuals

p.m.,

the lead).

vehicle

in

Escobar

including

defendant, Escobar,

then engaged

conversation.

conversation, the

vehicle

males pulled into the driveway.

Zapata approached the vehicle's passenger

in

second

unidentified

side (with Escobar

the passenger

After

and

several

of the

minutes

passenger handed

Escobar

of
a

key, which Escobar placed into his pocket.

Shortly thereafter, defendant, Escobar,

and Zapata

entered a blue station wagon parked in front of the house and

drove

away.

Defendant

surveilling agents

followed

located at 77

Acton Road

surveillance

position

condominium's

entrance.

Escobar use

was

the

driver.

this vehicle

in Lowell,
about

a key to unlock

and took

twenty

From this

to a

yards

position,

the front door.

One

of

the

condominium
up a
from

second
the

he observed
All three men

then proceeded inside.

Several
observed

minutes

defendant exit

later,
the same

the

surveilling

front door,

agent

approach the

blue station wagon, remove a child safety restraint seat from

the wagon, and carry it over to a blue Monte

Carlo parked in

-33

the condominium's driveway.

the

child's seat into the

He unlocked the car door, placed

back seat, and

then reentered 77

Acton Road.
A few

moments later,

exited the condominium.

travel

bag which

defendant

and Zapata

again

Each man was carrying a large, black

appeared heavy

to the

surveilling agent.

They opened the trunk of the Monte Carlo, placed the two bags
inside, closed the trunk, and
few minutes
Monte

later, Zapata exited the

Carlo,

and

drove

away.

approached

by law enforcement

Route

in

128

reentered the condominium.

Newton,

permission to search
the search, which

residence, entered the

Subsequently,
officials at a

Massachusetts,

the Monte Carlo.

revealed that

and

Zapata

was

rest area off

was

asked

Zapata consented

the two black

bags he

for
to
and

defendant had placed into the trunk contained 25 kilograms of

cocaine.
arresting

Zapata

then

was

placed

officer testified that

under

one of the

arrest.2

An

two black bags

was unzipped 4-6 inches at the time of the consensual search,

and that, through this 4-6 inch opening, he could plainly see
brown

and yellow

taped

bundles which,

in his

experience,

typically are used to package kilogram quantities of cocaine.

Later that same day, search

warrants were executed

at both 25 Glen Ellen Road and 77 Acton

Road.

The search of

____________________
2. The details of Zapata's arrest are set forth in greater
detail in United States v. Zapata, No. 93-1349, slip op. at
_____________
______
2-4 (1st Cir. March 24, 1994).
-44

77 Acton Road turned up a variety of drug paraphernalia (none

of which was in plain view), drug packaging (all of which was
found
in

in the garbage), and an electric bill for the premises

the name of Thomas Alvarez.

station wagon defendant drove

It turned out that the blue

from 25 Glen Ellen Road

to 77

Acton Road also was registered to the same Thomas Alvarez.

At

the

time

the

search

Escobar was found watching television

warrant

was

executed,

at 77 Acton Road,

but

defendant

was

not

present

eventually was arrested at

after his arrest,
cleaner,

at that

he lived

Later,

that

mechanic and

Lawrence.

was a

Immediately

the police that

on Beacon

Massachusetts.
he

Defendant

25 Glen Ellen Road.

defendant told

and that

location.

Street in

however, during
lived

he was

Lawrence,

booking, he

on Haverhill

stated

Street in

At the time of his arrest, defendant did

not have

any engine grease or oil on his hands.

On February 26, 1992, a grand jury

returned a two-

count indictment charging defendant, Escobar, and Zapata with

(1)

conspiring to

possess with

possessing with intent

abetting

the

cocaine.

See 21 U.S.C.
___

2.
1992,

to distribute (as well as

possession

of)

the

district court

or

more

October 19, 1992.

conclusion
granted

five

and (2)

aiding and

kilograms

of

846, 841(a)(1); see also 18 U.S.C.

___ ____

Trial commenced on
at

intent distribute,

of

the

Escobar's

-55

On October 22,

government's
motion

for

case,

the

judgment

of

acquittal made pursuant to

Fed. R. Crim. P.

29(a); however,

it denied a similar motion made by defendant.

On October 26,

1992, the jury returned guilty verdicts against defendant and

Zapata as to
1993, the

both counts of

district court imposed the

month incarcerative
U.S.C.

the indictment.

On March

16,

mandatory minimum 120-

sentence prescribed by statute.

See 21
___

841(b)(1)(A)(ii).
II.
II.
___
DISCUSSION
DISCUSSION
__________
On

insufficient

appeal, defendant
evidence

to

argues

support

that (1)
his

there

was

convictions;

(2)

prosecutorial misconduct during closing argument deprived him

of a fair

trial; (3) he

ineffective

was victimized by

assistance of

counsel; (4)

constitutionally

evidence discovered

after the trial should have entitled him to a new

(5) the indictment
not
Act.

trial; and

should have been dismissed because he was

tried within the

period prescribed by

Defendant also takes

method of determining

issue with the

drug quantity at

the Speedy Trial

district court's

his sentencing.

We

discuss each argument in turn.

A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
_______________________________
Defendant's
there

primary and

was insufficient evidence

The argument

is not without

central argument

is that

to support his convictions.

force, as the

evidence against

him was far

from overwhelming.

Moreover, it

is made

with

-66

considerable
counsel.

skill

and

energy

by

defendant's

appellate

Ultimately, however, we are not persuaded that any

error took place.

In
to sustain a
most

assessing whether there was sufficient evidence

conviction, we

favorable to

inferences

in its

the

examine the record

government,

favor, with

drawing all

an eye

towards

proof would have allowed a rational jury

in a

light

reasonable
whether the

to determine beyond

a reasonable doubt that the defendant was guilty of the crime

charged.

See,
___

e.g.,
____

analysis,

no premium

Ortiz, 966
_____
is placed

F.2d

its entire case through

United States v.
______________

Id.
___

"In this

direct as

opposed to

of proof can

adequately

upon

circumstantial evidence; both types

ground a conviction."

at 711.

Indeed, the government "may prove

the use of circumstantial evidence."

Akinola,
_______

985 F.2d

1105,

1109 (1st

Cir.

1993).
Two other points should be
the

borne in mind.

First,

government "need not exclude every reasonable hypothesis

of innocence."

Id.
___

And second, "juries are not required to

examine the evidence in

isolation, for `individual pieces of

evidence, insufficient in themselves to prove a point, may in

culmination prove

it.'"

Ortiz,
_____

966 F.2d

at 711

(quoting

Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).

_________
_____________
Here,

we think

it

apparent that

the sufficiency

issue reduces into a rather straightforward inquiry:

Could a

-77

rational
defendant

jury

knew that

Acton Road to
cocaine?

have found

the black

the trunk

After all,

beyond

if

think it self-evident from

bag

of the blue

reasonable doubt
he transported
Monte Carlo

defendant had

that

from 77
contained

this knowledge,

we

the quantity of cocaine defendant

possessed, see United States v. Echevarri, 982 F.2d

675, 678

___ _____________

_________

(1st Cir. 1993)

(intent to distribute

the quantity of

the controlled

defendant's undisputed
transported it from the
from

the

can be inferred

from

substances possessed),

from

possession

of the

cocaine while

condominium to the Monte

"`development

and

circumstances'" apparent in the

collocation

he

Carlo, and
of

[other]

record, see United States v.

___ _____________

Lopez, 944 F.2d 33, 39 (1st Cir. 1991) (quoting United States
_____
_____________
v.
111

Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denied,
_______
_____ ______
S. Ct.

others

1625

(1991)),3 that

unknown to

the

defendant and

grand jury)

had

Zapata (and

at least

tacit

agreement to possess the cocaine with an intent to distribute

it, see United States
___ _____________

v. Fisher, 3
______

F.3d 456, 462 n.18

(1st

____________________
3. Among these circumstances were (1) defendant's apparent
access to 77 Acton Road at a time when a significant amount
of drugs were being stored there; (2) defendant's apparent
access to an automobile registered to a person who seemingly
had some
degree of control over 77
Acton Road; (3)
defendant's significant (in terms of time and proximity)
association with
Zapata during the course of Zapata's
preparations to distribute the cocaine; (4) defendant's
placing of the drugs into the trunk of the Monte Carlo; and
(5)
defendant's
inconsistent statements
regarding his
residency and occupation following his arrest.
-88

Cir. 1993) (noting elements of crimes

charged in the instant

indictment).
We
this

conclude that

case compels

the

circumstantial evidence

an affirmative

answer to

Defendant was

among a

with a key to

a condominium where millions of

of

small group of

cocaine was being stored.

who leased or owned

in

this question.

individuals presented
dollars worth

This suggests that the persons

the condominium (and who, it

may fairly

be inferred, had knowledge of its contents) trusted defendant

enough

to allow

him

serious narcotics
in

turn,

permits

complicity between
States
______

to be

at the

reasonable

inference

210, 213 (1st

may fairly infer .

crimes.'"

innocent

(quoting United States

______________

F.2d 979, 985 (1st

(1991))).

of

as

criminal
See United
___ ______

Cir. 1992) ("`The

. . that it

non-participants

where a

This trust,

defendant and these persons.

human experience to suppose that criminal

welcome

scene

offense was being committed.

v. Tejeda, 974 F.2d

______

fact finder

present

runs counter to

conspirators would
witnesses

to

v. Passos-Paternina,
________________

their
918

Cir. 1990), cert. denied, 111 S. Ct. 2808

_____ ______

And, when this inference is coupled with the fact

that defendant, who had entered the condominium empty-handed,

actually retrieved the drugs
them

into

the

Monte Carlo,

(indicating that
course

of

from the condominium and loaded

cf.
___

Ortiz,
_____

where the defendant was

transportation

or

storage

966

F.2d at

712

present during the

of

contraband,

the

-99

possibility

that

s/he

is

an

innocent

significantly greater),

we think

rationally

found," Akinola,
_______

"could have
_____

that defendant

knew that

bystander

it apparent that

the black bags

985 F.2d

is

the jury
at 1109,

contained cocaine.

Accordingly, we reject defendant's sufficiency challenge.4

B. Prosecutorial Misconduct
B. Prosecutorial Misconduct
____________________________
Defendant's second argument
misconduct
trial.

during closing

is that

argument deprived

Specifically, defendant contends that

"repeatedly,
Escobar as

both
a member

expressly

and

of a conspiracy

impliedly,

prosecutorial
him of

a fair

the prosecutor
referred

which included,

to

inter

_____
alia,
____

[himself]

district court

and

Zapata"

had found

conspiracy

charge

defendant's

view,

impermissible references
supported by a reasonable

the

fact

that

insufficient evidence to

against
the

despite

Escobar

to

the

prosecutor's statements
to matters

send the

jury.

In

constituted

not in evidence

view of the evidence.

the

or not

See United
___ ______

States v. de Leon Davis, 914 F.2d 344-45 (1st Cir. 1990).

______
_____________

We

are not convinced.

Even if we assume arguendo the truth of defendant's
________
assertion, we are constrained by

the fact that defendant did

not interpose a contemporaneous objection to these references

____________________
4. Much of the evidence we have relied upon in rejecting
defendant's sufficiency claim equally implicated Escobar,
whose motion for a judgment of acquittal at the conclusion of
the government's case was granted by the district court. The
propriety of that acquittal is not, of course, before us.
-1010

during

the course

review only

of

for plain error.

only when it is "`so

the

closing arguments.

fundamental

we

And, error rises to this level

shocking that [it] seriously affect[ed]

fairness

and

proceedings conducted below.'"

Balwing, 952
_______

Accordingly,

F.2d 607, 611

basic

integrity

of

the

E.g., United States v. Hodge____ _____________

______

(1st Cir. 1991)

(quoting United
______

States v. Olivo-Infante,938 F.2d 1406, 1412 (1st Cir. 1991)).

______
_____________
Here,

the

references

complained

of,

even

erroneous, fell far short of the plain error threshold.

did

not

in any

resolve

way interfere

bags he

was transporting to

contained

cocaine.

separate

instructions

arguments

do not

facts, and of the

of

finding

Moreover,

constitute

us to

closing

the

evidence

even

of justice.
Cir.),

Accordingly, we reject

and

Carlo

followed by

jury

that

In light

two
___

closing
of these

a significant

supporting

the

jury's

persons unknown

were

see supra note 3, there is no basis

___ _____

conclude that

133 (1st

were

evidence.

defendant, Zapata,

arguments,

miscarriage
120,

ability to

the Monte

further fact that there was

circumstantial

that

they

informing

engaged in a conspiracy,
for

the jury's

They

the keystone issue in this case -- whether defendant

knew that the

amount

with

if

the references
if

erroneous,

to Escobar
resulted

in the
in

See United States v. Giry, 818 F.2d

___ _____________
____
cert. denied,
_____ ______

484

U.S. 855

defendant's prosecutorial

(1987).

misconduct

argument.

-1111

C. Ineffective Assistance
C. Ineffective Assistance
__________________________
Defendant next
failure to
as

argues

that his

object to the prosecutor's

member

of

the conspiracy

trial

references to Escobar

during

closing

constitutes ineffective assistance of counsel.

can

tell, this argument never was

court.

And, generally

ineffective
direct
F.3d

speaking,

assistance claim

appeal.

See, e.g.,
___ ____

1162, 1169

(1st Cir.

present one, however,

dispute

and a

attorney's

arguments

So far as we

presented to the district

we will

raised for

not

the first

United States v.
_____________
1994).

address an

Jadusingh, 12
_________

In situations

where "`the critical facts are

sufficiently developed

record

time on

like the
not in

exists,'" id.
___

(quoting United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir.

_____________
_______
1993)), there is no

reason for us to delay

consideration of

defendant's

claim.

Therefore,

we

address

defendant's

ineffective assistance argument on the merits.

In

order

to

demonstrate

ineffective assistance of counsel,

constitutionally

a defendant must show (1)

that counsel's conduct fell below the applicable standard for

performance,
known,

defined by what the lawyer knew, or should have

at the time of his/her tactical choices; and (2) that

prejudice resulted.
"prejudice"
error,

means

Fisher, 3 F.3d at 463.

______
that,

but

for

counsel's unprofessional

there is a reasonable probability

the proceedings

In this context,

that the result of

would have been different.

Lopez-Nieves v.
____________

-1212

United States,
______________

917 F.2d

645, 648

(1st Cir.

1990) (citing

Strickland v. Washington, 466 U.S. 668 (1984)).

__________
__________
Here,
counsel's

even

failure

if
to

we
object

assume
fell

arguendo
________
below

the

that

trial

applicable

standard, we cannot say that, but

reasonable

probability

acquitted.

As

we

that

have

defendant

stated

references to

Escobar during

erroneous, in

no way interfered

make the
whether

central factual
defendant

Furthermore,

instructions that
subsequent to
improper

have

the

his closing argument,

the

with the jury's

bags

confident

of

those

circumstantial
finding

references

did

Accordingly,

cements

case (i.e.,

not

affect

we reject
by

defendant's

constitutionally

Finally,

that

outcome

two

offset any

supporting the

view

the

cocaine).

evidence, made

references.

our

even if

trial court's

are not

evidence

been

ability to

contained

that the

prosecutor's

the challenged references, largely

conspiracy

victimized

above,

closing arguments

effects

significant

would

determination in this

knew

we are

for the error, there is

the
jury's

the challenged
of

argument

ineffective

this
that

case.
he

assistance

was
of

counsel.
D. Newly-Discovered Evidence
D. Newly-Discovered Evidence
_____________________________
Defendant's
court

erred

fourth argument

in denying,

motion for a new

by means

of

is that
a margin

the district
order, his

trial based upon newly-discovered evidence.

-1313

The

evidence at

Tejeda,
a

issue is

(1) an

affidavit by

one Claudio

which avers that defendant was working for Tejeda as

mechanic on February 4, 1992; and (2) an unsworn statement

by Escobar

providing an innocent explanation

of February

4, 1992.

Once again,

for the events

we are not

persuaded by

defendant's argument.
In order for a defendant to prevail on a motion for
a

new

trial

conditions

based

must be

unavailable

to

failure to

upon

newly-discovered

met:

(1) the

defendant

at the

discover the evidence

evidence,

evidence was
time

of

was not

four

unknown or

trial; (2)
due to a

the

lack of

diligence on the part of defendant; (3) the new evidence must

be material;
acquittal

and (4) the evidence would

upon

Benavente Gomez,
_______________
States
______

F.2d

of

defendant.

921 F.2d 378,

these four factors is

trial should be denied.

v.

1990); United
______

1019 (1st Cir. 1980).

If

lacking, the motion for

United States
_____________

302, 313 (1st Cir. 1991), cert.

_____

(1992).

United States
______________

382 (1st Cir.

v. Wright, 625 F. 2d 1017,

______

any one of
new

retrial

probably produce an

v. Natanel, 938
_______

denied, 112 S. Ct. 986

______

Because the court denied defendant's motion without

stating its reasons, we do not know the precise basis for its
decision.
us

that

Our examination
the

court

of the record, however, convinces

could

exercised due diligence in

not

have

found that

defendant

attempting to secure Tejeda's and

-1414

Escobar's testimony prior

portion

of

defendant

the

trial

ever expressed

to the
record

conclusion of
before

a need

us

trial.

No

indicates

for testimony

that

from either

Tejeda

or Escobar; defendant neither requested a continuance

so that

he could try to locate either one of them nor sought

the district court's assistance in securing their presence by

means of the judicial process.

Cf. Wright, 625 F.2d at

___ ______

1019

(affidavit stating that defendant, who

failed to move for

continuance

been

to

"investigation"

locate
into the

would not preclude

witness,

had

witness's

a finding

conducting

location

of a lack

of due

during

a
an

trial

diligence).

Moreover, in his severance motion, defendant did not indicate

any wish or intention to call Escobar as a witness on his own

behalf.5
whether

Accordingly, without expressing any

defendant has met any of

necessary

for

defendant's

the

granting

assertion that

of

comment as to

the three other conditions

a

the court

new

trial,

erred in

we

reject

denying his

motion.
E. Speedy Trial Act
E. Speedy Trial Act
____________________

____________________
5. The only indication in the record of any attempt by
defendant to locate Tejeda or Escobar during trial is found
in the text of the motion for a new trial, which states:
"Frederick Fermin Ortiz's lawyer kept telling Rosaura Barrios
[a friend of Ortiz] to find Escobar and Claudio Tejeda. She
finally found them on the twenty-seventh and twenty-eighth of
November [after defendant's trial was concluded]." Patently,
this is insufficient to constitute due diligence.
-1515

Defendant's
brought to
Speedy Trial

fifth

trial within
Act.

See

argument

is

the 70-day period

18 U.S.C.

that he

was

not

mandated by

the

3161(c)(1).

We

do not

___
agree.
Defendant appears to concede that all time prior to
May 20,

1992, was properly

prescribed in

excluded from the

3161(c)(1).

He

70-day period

argues, however, that

the

120-day period from May 20, 1992, through September 18, 1992,
when

he

filed

a motion

to

dismiss

grounds, was not excludable.

court erred in

He

on

Speedy Trial

Act

therefore contends that the

denying his motion to dismiss

the indictment

for violation of Act.

Defendant's argument overlooks
on June 16, 1992, Escobar filed
of co-conspirator statements
70-day speedy trial period,
20,

two facts.

First,

two motions to limit the use

against him.

Accordingly,

the

which had started to run

on May

1992, was tolled, at least for the next 30 days.

See 18
___

U.S.C.

3161(h)(1)(F) and (J);6

see also United States v.

___ ____ ______________

Torres Lopez, 851 F.2d 520, 526 (1st Cir. 1988) (speedy trial
____________
motion resulting in excludable

time from one defendant stops

____________________
6. Although the record is not entirely clear on this point,
the district court, which never ruled on Escobar's motions,
apparently treated them as motions which did not require a
hearing, and which therefore only toll the 70-day period for
30 days. See Henderson v. United States, 476 U.S. 321, 328___ _________
_____________
29 (1986) (indicating that, when a pretrial motion not
requiring a hearing is filed with the district court but not
ruled upon,
3161(h)(1)(F) and (J) act in unison to exclude
30 days from the speedy trial clock).
-16-

16

the clock for all codefendants), cert.

_____
(1989).

Second, on July

denied, 489 U.S. 1021

______

31, 1992, and

September 25, 1992,

the district court convened scheduling conferences at

without any objection

from defendant's counsel,

which,

defendant's

trial was continued (first until September 30, 1992, and then
until

October 19, 1992).

Therefore, it appears that all the

time prior to defendant's trial other than those periods from

May

20,

1992, through

through July
periods

June 16,

31, 1992, was

1992,

excludable.

of non-excludable

time do

and July
And,

not add

16, 1992,

because these
up to

70 days,

there was no Speedy Trial Act violation.

F. Sentencing
F. Sentencing
______________
Defendant's
court

erred when,

final

argument is

in determining

that

the district

that defendant

should be

held accountable for the 25 kilograms of cocaine found in the

two

bags for purposes of

the

mandatory minimum

both the Sentencing Guidelines and

sentence

prescribed by

21 U.S.C.

841(b)(1)(A)(ii), it did not make a finding as to defendant's

subjective knowledge
defendant
held

relies upon

regarding drug quantity.

an opinion

in which

In so doing,
Judge Weinstein

that a defendant can be sentenced only on the amount of

drugs s/he
conduct.

reasonably foresaw

as being involved

See United States v. Ekwunoh, 813 F.

___ _____________
_______

(E.D.N.Y. 1993),

vacated on other
_______ __ _____

in his/her

Supp 168, 178

grounds, 12 F.3d
_______

368 (2d

Cir. 1994).

-1717

While the issue raised certainly

one, it

is not one we need resolve here.

is an interesting
Defendant received

only the 120-month mandatory minimum sentence prescribed by

841(b)(1)(A)(ii) because the two
kilograms
district

of cocaine.
court would

Thus, any
have

could have found, without

States
______

bags contained five or more

error

been harmless

committed by
unless the

the
court

committing clear error, see United

___ ______

v. Bradley, 917 F.2d

_______

601, 605 (1st

Cir. 1990), that

defendant

reasonably

kilograms of cocaine
there

did not

foresee

were involved in

that

at least

five

his offenses.

Here,

is no way the court could have reached that conclusion

without committing
visibly

heavy to

clear error.7
the surveilling

The two bags,

which were

agent, contained

25 one-

kilogram packages of cocaine (fifteen packages in one bag and

ten

in the other) and apparently

And, as

we have

supportably
black

bags.

already observed,

found that
In light

little, if anything, else.

the jury implicitly

defendant knew
of these

the contents

facts alone,

would be no basis

for finding that defendant

not

at least

foresee that

five

kilograms of

and

of the

there simply
reasonably did
cocaine were

____________________
7. In so stating, we note that, at his sentencing hearing,
defendant did not evince a desire to add to or challenge any
of the drug quantity evidence adduced at trial.
Cf. United
___ ______
States v. Tavano, 12 F.2d 301, 305-06 (1st Cir. 1993) (Due
______
______
Process Clause requires the sentencing judge to consider all
available
drug
quantity
evidence, including
evidence
conflicting with that introduced at trial.).
Accordingly,
our conclusion is based upon the drug quantity evidence
advanced at trial.
-1818

involved in his
court

crimes.

erred in failing to

subjective

Accordingly,

even if the

make a finding

knowledge regarding

drug

district

as to defendant's

quantity (a

point

on

which we express no opinion), the error was harmless.

III.
III.
____
CONCLUSION
CONCLUSION
__________
Having

rejected

each

of the

arguments

made

on

appear by defendant, we affirm his convictions and sentence.

Affirmed.
Affirmed
________

-1919