united states v. ortiz, 1st cir. (1994)
TRANSCRIPT
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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. _____________
____________________
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Barry P. Wilson for appellant. _______________ Geoffrey E. Hobart, Assistant United States Attorney, wit
___________________ Donald K. Stern, United States Attorney, and R. Bradford
_________________ ____________ Assistant United States Attorney, were on brief for appellee.
____________________
May 5, 1994 ____________________
STAHL, Circuit Judge. In this appeal, defendan STAHL, Circuit Judge. _____________
appellant Frederick Fermin Ortiz challenges, on a variety
grounds, his convictions and sentence for conspiracy
possess cocaine with intent to distribute and for possessi
of cocaine with intent to distribute. After careful
considering defendant's arguments, we affirm.
I. I. __
BACKGROUND AND PRIOR PROCEEDINGS
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BACKGROUND AND PRIOR PROCEEDINGS ________________________________
As is always the case when considering a crimin
defendant's challenge to his/her conviction, we interpret t
record in a light most amenable to the government. Se
_
e.g., United States v. Ortiz, 966 F.2d 707, 710 (1st Ci ____ _____________ _____
1992), cert. denied, 113 S. Ct. 1005 (1993). _____ ______
On February 4, 1992, several federal and local l
enforcement agents, acting in response to a tip from
reliable informant, were conducting surveillance of a singl
family house located at 25 Glen Ellen Road in Lowel
Massachusetts. These agents observed defendant, along wi
codefendants Walter DeJesus Zapata ("Zapata") and Willi
DeJesus Escobar-Vegara ("Escobar")1 (and several ot
individuals), moving casually in and around this house a
its garage. A Ford Taurus was parked in the garage with i
____________________
1. The trial record reflects, and defendant's couns confirmed at oral argument, that contrary to the mo
prevalent Hispanic custom, defendant and his codefendan prefer that the last of their given names be used
surnames.
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hood and doors open. Although the agents at one point s
Zapata and Escobar enter the Taurus and begin tugging at t
vehicle's back seat, at no time did they see anyone actual
doing any work under the car's hood.
At approximately 2:00 p.m., a second vehic
occupied by two unidentified males pulled into the drivewa
A group of individuals including defendant, Escobar, a
Zapata approached the vehicle's passenger side (with Escob
in the lead). Escobar then engaged the passenger of t
vehicle in conversation. After several minutes
conversation, the unidentified passenger handed Escobar
key, which Escobar placed into his pocket.
Shortly thereafter, defendant, Escobar, and Zapa
entered a blue station wagon parked in front of the house a
drove away. Defendant was the driver. One of t
surveilling agents followed this vehicle to a condomini
located at 77 Acton Road in Lowell, and took up a seco
surveillance position about twenty yards from t
condominium's entrance. From this position, he obser
Escobar use a key to unlock the front door. All three
then proceeded inside.
Several minutes later, the surveilling age
observed defendant exit the same front door, approach t
blue station wagon, remove a child safety restraint seat fr
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the wagon, and carry it over to a blue Monte Carlo parked
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the condominium's driveway. He unlocked the car door, plac
the child's seat into the back seat, and then reentered
Acton Road.
A few moments later, defendant and Zapata aga
exited the condominium. Each man was carrying a large, bla
travel bag which appeared heavy to the surveilling agen
They opened the trunk of the Monte Carlo, placed the two ba
inside, closed the trunk, and reentered the condominium.
few minutes later, Zapata exited the residence, entered t
Monte Carlo, and drove away. Subsequently, Zapata
approached by law enforcement officials at a rest area o
Route 128 in Newton, Massachusetts, and was asked f
permission to search the Monte Carlo. Zapata consented
the search, which revealed that the two black bags he a
defendant had placed into the trunk contained 25 kilograms
cocaine. Zapata then was placed under arrest.2
arresting officer testified that one of the two black ba
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was unzipped 4-6 inches at the time of the consensual searc
and that, through this 4-6 inch opening, he could plainly s
brown and yellow taped bundles which, in his experienc
typically are used to package kilogram quantities of cocain
Later that same day, search warrants were execut
at both 25 Glen Ellen Road and 77 Acton Road. The search
____________________
2. The details of Zapata's arrest are set forth in great detail in United States v. Zapata, No. 93-1349, slip op.
_____________ ______ 2-4 (1st Cir. March 24, 1994).
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77 Acton Road turned up a variety of drug paraphernalia (no
of which was in plain view), drug packaging (all of which
found in the garbage), and an electric bill for the premis
in the name of Thomas Alvarez. It turned out that the bl
station wagon defendant drove from 25 Glen Ellen Road to
Acton Road also was registered to the same Thomas Alvarez.
At the time the search warrant was execute
Escobar was found watching television at 77 Acton Road, b
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defendant was not present at that location. Defenda
eventually was arrested at 25 Glen Ellen Road. Immediate
after his arrest, defendant told the police that he was
cleaner, and that he lived on Beacon Street in Lawrenc
Massachusetts. Later, however, during booking, he stat
that he was a mechanic and lived on Haverhill Street
Lawrence. At the time of his arrest, defendant did not ha
any engine grease or oil on his hands.
On February 26, 1992, a grand jury returned a t
count indictment charging defendant, Escobar, and Zapata wi
(1) conspiring to possess with intent distribute, and (
possessing with intent to distribute (as well as aiding a
abetting the possession of) five or more kilograms
cocaine. See 21 U.S.C. 846, 841(a)(1); see also 18 U.S. ___ ___ ____
2. Trial commenced on October 19, 1992. On October 2
1992, at the conclusion of the government's case, t
district court granted Escobar's motion for judgment
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acquittal made pursuant to Fed. R. Crim. P. 29(a); howeve
it denied a similar motion made by defendant. On October 2
1992, the jury returned guilty verdicts against defendant a
Zapata as to both counts of the indictment. On March 1
1993, the district court imposed the mandatory minimum 12
month incarcerative sentence prescribed by statute. See___
U.S.C. 841(b)(1)(A)(ii).
II. II. ___
DISCUSSION DISCUSSION __________
On appeal, defendant argues that (1) there
insufficient evidence to support his convictions; (
prosecutorial misconduct during closing argument deprived
of a fair trial; (3) he was victimized by constitutional
ineffective assistance of counsel; (4) evidence discover
after the trial should have entitled him to a new trial; a
(5) the indictment should have been dismissed because he
not tried within the period prescribed by the Speedy Tri
Act. Defendant also takes issue with the district court
method of determining drug quantity at his sentencing.
discuss each argument in turn.
A. Sufficiency of the Evidence A. Sufficiency of the Evidence _______________________________
Defendant's primary and central argument is t
there was insufficient evidence to support his conviction
The argument is not without force, as the evidence again
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him was far from overwhelming. Moreover, it is made wi
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considerable skill and energy by defendant's appella
counsel. Ultimately, however, we are not persuaded that a
error took place.
In assessing whether there was sufficient eviden
to sustain a conviction, we examine the record in a li
most favorable to the government, drawing all reasonab
inferences in its favor, with an eye towards whether t
proof would have allowed a rational jury to determine beyo
a reasonable doubt that the defendant was guilty of the cri
charged. See, e.g., Ortiz, 966 F.2d at 711. "In t ___ ____ _____
analysis, no premium is placed upon direct as opposed
circumstantial evidence; both types of proof can adequate
ground a conviction." Id. Indeed, the government "may pro ___
its entire case through the use of circumstantial evidence
United States v. Akinola, 985 F.2d 1105, 1109 (1st Ci ______________ _______
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1993).
Two other points should be borne in mind. Firs
the government "need not exclude every reasonable hypothes
of innocence." Id. And second, "juries are not required
___
examine the evidence in isolation, for `individual pieces
evidence, insufficient in themselves to prove a point, may
culmination prove it.'" Ortiz, 966 F.2d at 711 (quoti _____
Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).
_________ _____________
Here, we think it apparent that the sufficien
issue reduces into a rather straightforward inquiry: Coul
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rational jury have found beyond a reasonable doubt t
defendant knew that the black bag he transported from
Acton Road to the trunk of the blue Monte Carlo contain
cocaine? After all, if defendant had this knowledge,
think it self-evident from the quantity of cocaine defenda
possessed, see United States v. Echevarri, 982 F.2d 675, 6
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___ _____________ _________
(1st Cir. 1993) (intent to distribute can be inferred fr
the quantity of the controlled substances possessed), fr
defendant's undisputed possession of the cocaine while
transported it from the condominium to the Monte Carlo, a
from the "`development and collocation of [othe
circumstances'" apparent in the record, see United States___ _____________
Lopez, 944 F.2d 33, 39 (1st Cir. 1991) (quoting United Stat _____ __________
v. Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denie _______ _____ ____
111 S. Ct. 1625 (1991)),3 that defendant and Zapata (a
others unknown to the grand jury) had at least a tac
agreement to possess the cocaine with an intent to distribu
it, see United States v. Fisher, 3 F.3d 456, 462 n.18 (1 ___ _____________ ______
____________________
3. Among these circumstances were (1) defendant's appare access to 77 Acton Road at a time when a significant amou of drugs were being stored there; (2) defendant's appare access to an automobile registered to a person who seemin
had some degree of control over 77 Acton Road; ( defendant's significant (in terms of time and proximit association with Zapata during the course of Zapata preparations to distribute the cocaine; (4) defendant placing of the drugs into the trunk of the Monte Carlo; a (5) defendant's inconsistent statements regarding
residency and occupation following his arrest.
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Cir. 1993) (noting elements of crimes charged in the insta
indictment).
We conclude that the circumstantial evidence
this case compels an affirmative answer to this questio
Defendant was among a small group of individuals present
with a key to a condominium where millions of dollars wor
of cocaine was being stored. This suggests that the perso
who leased or owned the condominium (and who, it may fair
be inferred, had knowledge of its contents) trusted defenda
enough to allow him to be present at the scene where
serious narcotics offense was being committed. This trus
in turn, permits a reasonable inference of crimin
complicity between defendant and these persons. See Unit ___ ___
States v. Tejeda, 974 F.2d 210, 213 (1st Cir. 1992) ("`T ______ ______
fact finder may fairly infer . . . that it runs counter
human experience to suppose that criminal conspirators wou
welcome innocent non-participants as witnesses to the
crimes.'" (quoting United States v. Passos-Paternina, 9 ______________ ________________
F.2d 979, 985 (1st Cir. 1990), cert. denied, 111 S. Ct. 28 _____ ______
(1991))). And, when this inference is coupled with the fa
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that defendant, who had entered the condominium empty-hande
actually retrieved the drugs from the condominium and loa
them into the Monte Carlo, cf. Ortiz, 966 F.2d at 7 ___ _____
(indicating that where the defendant was present during t
course of transportation or storage of contraband, t
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possibility that s/he is an innocent bystander
significantly greater), we think it apparent that the ju
rationally "could have found," Akinola, 985 F.2d at 110 _____ _______
that defendant knew that the black bags contained cocain
Accordingly, we reject defendant's sufficiency challenge.4
B. Prosecutorial Misconduct B. Prosecutorial Misconduct ____________________________
Defendant's second argument is that prosecutori
misconduct during closing argument deprived him of a fa
trial. Specifically, defendant contends that the prosecut
"repeatedly, both expressly and impliedly, referred
Escobar as a member of a conspiracy which included, int
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__
alia, [himself] and Zapata" despite the fact that t ____
district court had found insufficient evidence to send t
conspiracy charge against Escobar to the jury.
defendant's view, the prosecutor's statements constitut
impermissible references to matters not in evidence or n
supported by a reasonable view of the evidence. See Unit ___ ___
States v. de Leon Davis, 914 F.2d 344-45 (1st Cir. 1990).______ _____________
are not convinced.
Even if we assume arguendo the truth of defendant ________
assertion, we are constrained by the fact that defendant
not interpose a contemporaneous objection to these referenc
____________________
4. Much of the evidence we have relied upon in rejecti defendant's sufficiency claim equally implicated Escoba whose motion for a judgment of acquittal at the conclusion
the government's case was granted by the district court. T propriety of that acquittal is not, of course, before us.
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during the course of closing arguments. Accordingly,
review only for plain error. And, error rises to this le
only when it is "`so shocking that [it] seriously affect[e
the fundamental fairness and basic integrity of t
proceedings conducted below.'" E.g., United States v. Hod ____ _____________ ___
Balwing, 952 F.2d 607, 611 (1st Cir. 1991) (quoting Unit _______ ___
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. T
did not in any way interfere with the jury's ability
resolve the keystone issue in this case -- whether defenda
knew that the bags he was transporting to the Monte Car
contained cocaine. Moreover, they were followed by t
separate instructions informing the jury that closi
arguments do not constitute evidence. In light of the
facts, and of the further fact that there was a significa
amount of circumstantial evidence supporting the jury
finding that defendant, Zapata, and persons unknown we
engaged in a conspiracy, see supra note 3, there is no bas ___ _____
for us to conclude that the references to Escobar in t
closing arguments, even if erroneous, resulted in
miscarriage of justice. See United States v. Giry, 818 F. ___ _____________ ____
120, 133 (1st Cir.), cert. denied, 484 U.S. 855 (1987 _____ ______
Accordingly, we reject defendant's prosecutorial miscondu
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argument.
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C. Ineffective Assistance C. Ineffective Assistance __________________________
Defendant next argues that his trial attorney
failure to object to the prosecutor's references to Escob
as a member of the conspiracy during closing argumen
constitutes ineffective assistance of counsel. So far as
can tell, this argument never was presented to the distri
court. And, generally speaking, we will not address
ineffective assistance claim raised for the first time
direct appeal. See, e.g., United States v. Jadusingh,___ ____ _____________ _________
F.3d 1162, 1169 (1st Cir. 1994). In situations like t
present one, however, where "`the critical facts are not
dispute and a sufficiently developed record exists,'" i
(quoting United States v. Daniels, 3 F.3d 25, 26-27 (1st Ci _____________ _______
1993)), there is no reason for us to delay consideration
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defendant's claim. Therefore, we address defendant
ineffective assistance argument on the merits.
In order to demonstrate constitutional
ineffective assistance of counsel, a defendant must show (
that counsel's conduct fell below the applicable standard f
performance, defined by what the lawyer knew, or should ha
known, at the time of his/her tactical choices; and (2) t
prejudice resulted. Fisher, 3 F.3d at 463. In this contex ______
"prejudice" means that, but for counsel's unprofession
error, there is a reasonable probability that the result
the proceedings would have been different. Lopez-Nieves____________
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United States, 917 F.2d 645, 648 (1st Cir. 1990) (citi ______________
Strickland v. Washington, 466 U.S. 668 (1984)). __________ __________
Here, even if we assume arguendo that tri ________
counsel's failure to object fell below the applicab
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standard, we cannot say that, but for the error, there is
reasonable probability that defendant would have be
acquitted. As we have stated above, the prosecutor
references to Escobar during his closing argument, even
erroneous, in no way interfered with the jury's ability
make the central factual determination in this case (i.e
whether defendant knew the bags contained cocaine
Furthermore, we are confident that the trial court's t
instructions that closing arguments are not evidence, ma
subsequent to the challenged references, largely offset a
improper effects of those references. Finally, t
significant circumstantial evidence supporting the jury
conspiracy finding cements our view that the challen
references did not affect the outcome of this cas
Accordingly, we reject defendant's argument that he
victimized by constitutionally ineffective assistance
counsel.
D. Newly-Discovered Evidence D. Newly-Discovered Evidence _____________________________
Defendant's fourth argument is that the distri
court erred in denying, by means of a margin order,
motion for a new trial based upon newly-discovered evidenc
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The evidence at issue is (1) an affidavit by one Clau
Tejeda, which avers that defendant was working for Tejeda
a mechanic on February 4, 1992; and (2) an unsworn stateme
by Escobar providing an innocent explanation for the even
of February 4, 1992. Once again, we are not persuaded
defendant's argument.
In order for a defendant to prevail on a motion f
a new trial based upon newly-discovered evidence, fo
conditions must be met: (1) the evidence was unknown
unavailable to defendant at the time of trial; (2) t
failure to discover the evidence was not due to a lack
diligence on the part of defendant; (3) the new evidence mu
be material; and (4) the evidence would probably produce
acquittal upon retrial of defendant. United States______________
Benavente Gomez, 921 F.2d 378, 382 (1st Cir. 1990); Unit _______________ ___
States v. Wright, 625 F. 2d 1017, 1019 (1st Cir. 1980).______ ______
any one of these four factors is lacking, the motion for
new trial should be denied. United States v. Natanel, 9 _____________ _______
F.2d 302, 313 (1st Cir. 1991), cert. denied, 112 S. Ct. 9 _____ ______
(1992).
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Because the court denied defendant's motion witho
stating its reasons, we do not know the precise basis for i
decision. Our examination of the record, however, convinc
us that the court could not have found that defenda
exercised due diligence in attempting to secure Tejeda's a
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Escobar's testimony prior to the conclusion of trial.
portion of the trial record before us indicates t
defendant ever expressed a need for testimony from eit
Tejeda or Escobar; defendant neither requested a continuan
so that he could try to locate either one of them nor sou
the district court's assistance in securing their presence
means of the judicial process. Cf. Wright, 625 F.2d at 10 ___ ______
(affidavit stating that defendant, who failed to move for
continuance to locate witness, had been conducting
"investigation" into the witness's location during tri
would not preclude a finding of a lack of due diligence
Moreover, in his severance motion, defendant did not indica
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any wish or intention to call Escobar as a witness on his o
behalf.5 Accordingly, without expressing any comment as
whether defendant has met any of the three other conditio
necessary for the granting of a new trial, we reje
defendant's assertion that the court erred in denying
motion.
E. Speedy Trial Act E. Speedy Trial Act ____________________
____________________
5. The only indication in the record of any attemptdefendant to locate Tejeda or Escobar during trial is fou
in the text of the motion for a new trial, which state "Frederick Fermin Ortiz's lawyer kept telling Rosaura Barri [a friend of Ortiz] to find Escobar and Claudio Tejeda. S finally found them on the twenty-seventh and twenty-eighth
November [after defendant's trial was concluded]." Patentl this is insufficient to constitute due diligence.
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Defendant's fifth argument is that he was n
brought to trial within the 70-day period mandated by t
Speedy Trial Act. See 18 U.S.C. 3161(c)(1). We do n
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___
agree.
Defendant appears to concede that all time prior
May 20, 1992, was properly excluded from the 70-day peri
prescribed in 3161(c)(1). He argues, however, that t
120-day period from May 20, 1992, through September 18, 199
when he filed a motion to dismiss on Speedy Trial
grounds, was not excludable. He therefore contends that t
court erred in denying his motion to dismiss the indictme
for violation of Act.
Defendant's argument overlooks two facts. Firs
on June 16, 1992, Escobar filed two motions to limit the u
of co-conspirator statements against him. Accordingly, t
70-day speedy trial period, which had started to run on
20, 1992, was tolled, at least for the next 30 days. See___
U.S.C. 3161(h)(1)(F) and (J);6 see also United States___ ____ ______________
Torres Lopez, 851 F.2d 520, 526 (1st Cir. 1988) (speedy tri ____________
motion resulting in excludable time from one defendant sto
____________________
6. Although the record is not entirely clear on this poin the district court, which never ruled on Escobar's motion apparently treated them as motions which did not require
hearing, and which therefore only toll the 70-day period f 30 days. See Henderson v. United States, 476 U.S. 321, 32 ___ _________ _____________ 29 (1986) (indicating that, when a pretrial motion n
requiring a hearing is filed with the district court but n ruled upon, 3161(h)(1)(F) and (J) act in unison to exclu 30 days from the speedy trial clock).
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16
the clock for all codefendants), cert. denied, 489 U.S. 10 _____ ______
(1989). Second, on July 31, 1992, and September 25, 199
the district court convened scheduling conferences at whic
without any objection from defendant's counsel, defendant
trial was continued (first until September 30, 1992, and t
until October 19, 1992). Therefore, it appears that all t
time prior to defendant's trial other than those periods fr
May 20, 1992, through June 16, 1992, and July 16, 199
through July 31, 1992, was excludable. And, because the
periods of non-excludable time do not add up to 70 day
there was no Speedy Trial Act violation.
F. Sentencing F. Sentencing ______________
Defendant's final argument is that the distri
court erred when, in determining that defendant should
held accountable for the 25 kilograms of cocaine found in t
two bags for purposes of both the Sentencing Guidelines a
the mandatory minimum sentence prescribed by 21 U.S.C.
841(b)(1)(A)(ii), it did not make a finding as to defendant
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subjective knowledge regarding drug quantity. In so doin
defendant relies upon an opinion in which Judge Weinste
held that a defendant can be sentenced only on the amount
drugs s/he reasonably foresaw as being involved in his/
conduct. See United States v. Ekwunoh, 813 F. Supp 168, 1 ___ _____________ _______
(E.D.N.Y. 1993), vacated on other grounds, 12 F.3d 368 ( _______ __ _____ _______
Cir. 1994).
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While the issue raised certainly is an interesti
one, it is not one we need resolve here. Defendant recei
only the 120-month mandatory minimum sentence prescribed by
841(b)(1)(A)(ii) because the two bags contained five or mo
kilograms of cocaine. Thus, any error committed by t
district court would have been harmless unless the cou
could have found, without committing clear error, see Unit
___ ___
States v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990), t ______ _______
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defendant reasonably did not foresee that at least fi
kilograms of cocaine were involved in his offenses. Her
there is no way the court could have reached that conclusi
without committing clear error.7 The two bags, which we
visibly heavy to the surveilling agent, contained 25 on
kilogram packages of cocaine (fifteen packages in one bag a
ten in the other) and apparently little, if anything, els
And, as we have already observed, the jury implicitly a
supportably found that defendant knew the contents of t
black bags. In light of these facts alone, there simp
would be no basis for finding that defendant reasonably
not foresee that at least five kilograms of cocaine we
____________________
7. In so stating, we note that, at his sentencing hearin defendant did not evince a desire to add to or challenge a of the drug quantity evidence adduced at trial. Cf. Unit ___ ___ States v. Tavano, 12 F.2d 301, 305-06 (1st Cir. 1993) ( ______ ______ Process Clause requires the sentencing judge to consider a available drug quantity evidence, including eviden conflicting with that introduced at trial.). Accordingl our conclusion is based upon the drug quantity eviden advanced at trial.
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involved in his crimes. Accordingly, even if the distri
court erred in failing to make a finding as to defendant
subjective knowledge regarding drug quantity (a point
which we express no opinion), the error was harmless.
III. III. ____
CONCLUSION CONCLUSION __________
Having rejected each of the arguments made
appear by defendant, we affirm his convictions and sentence
Affirmed. Affirmed ________