          United States Court of Appeals
                     For the First Circuit


No. 01-2636

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                      LUÍS RIVERA NEWTON,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Juan Pérez Giménez, U.S. District Judge]



                             Before

                       Lynch, Circuit Judge,
                   Cyr, Senior Circuit Judge,
                    and Lipez, Circuit Judge.


     Linda Backiel, on brief for appellant.
     Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Sonia Torres-
Pabón, Assistant United States Attorney, were on brief for the
United States.



                         April 9, 2003
              LIPEZ,   Circuit      Judge.          On    April    23,     2001,    a    jury

convicted Luis Rivera Newton ("Rivera Newton", a.k.a. "Luis el

Mono,"      "Luisito")   of     conspiracy          to    possess       with     intent    to

distribute in excess of five kilograms of cocaine, more than one

kilogram of heroin, and multiple kilograms of marijuana.                                   On

October 12, 2001, the district court sentenced Rivera Newton to

life imprisonment.          Rivera Newton now appeals his conviction on

three      grounds:      1)   the    district            court    improperly       admitted

statements of co-conspirators, 2) the district court erroneously

excluded evidence of his prior acquittal in state court for a

multiple      homicide   that    formed      an      integral          component    of    the

government's conspiracy case, and 3) his attorneys labored under an

impermissible      conflict     of   interest.             He    also     challenges      his

sentence, claiming that the district court erroneously calculated

his offense level under the United States Sentencing Guidelines

(the       "Guidelines").       Finding        no    merit        in    Rivera     Newton's

contentions, we affirm the defendant's conviction and decline to

set aside his sentence.

                                          I.

              We describe the facts in the light most favorable to the

verdict.      United States v. Diaz, 300 F.3d 66, 69 (1st Cir. 2002).1

The evidence at trial described Rivera Newton's involvement in a


       1
      We recount facts here to convey a general picture of the
case, and provide additional detail in subsequent sections where it
is relevant to the legal analysis.

                                        -2-
"hub-and-spoke conspiracy"2 to distribute multi-kilogram quantities

of cocaine, heroin, and marijuana from the early months of 1989 to

April 8, 1998.         The drugs were sold at specialized distribution

points for each substance ("drug points") primarily located within

the Gautier Benitez Housing Project ("Gautier Benitez") in Cagua,

Puerto Rico.       While the drug points were managed by different

individuals,     every    distribution    point    in   Gautier   Benitez   was

ultimately controlled by Edsel Torres Gomez (a.k.a. "Negri"), the

de facto "hub" of the conspiracy.                 At trial, the government

portrayed Rivera Newton as Negri's right-hand man and presented

witnesses who testified to Rivera Newton's role as a conduit

between Negri and lower-level members of the conspiracy.                Negri

also       entrusted     Rivera   Newton     with       various    high-level

responsibilities such as counting the money received in drug

transactions and testing the quality of the drugs purchased from

other dealers.

             Rivera Newton's claims of error implicate, inter alia,

the testimony of co-conspirators who served as "spokes" of the

conspiracy.     Several of these individuals were among the seven co-

defendants indicted with Rivera Newton on June 2, 1999.              Of these



       2
      In a "hub-and-spoke conspiracy," a central mastermind, or
"hub," controls numerous "spokes," or secondary co-conspirators.
These co-conspirators participate in independent transactions with
the individual or group of individuals at the "hub" that
collectively further a single, illegal enterprise. See Kotteakos
v. United States, 328 U.S. 750, 754-55 (1946).

                                    -3-
seven, six pled guilty in exchange for reduced sentences and agreed

to testify against Rivera haleyrodriguez@example.org.                      The seventh co-

defendant,     Francisco   Fernandez         Rios    ("Fernandez        Rios")    also

testified against Rivera Newton in exchange for a reduction in his

sentence for a previous conviction.                 Their varying roles in the

conspiracy and the substance of the testimony at issue in this

appeal   are   best    understood     in   the      context   of    the   two    major

activities undertaken by the conspiracy -- trafficking drugs and

protecting Negri's drug empire.

A.           Drug Trafficking

             The government's first witness was Javier Perez Alicea

("Perez Alicea"), a drug supplier who testified that from 1993 to

1995 he sold approximately 200 kilograms of cocaine to a close

confidant of Negri named Jimmy Peligro.                  Perez Alicea conveyed

these drugs to Peligro through approximately 20 to 25 transactions,

and Peligro in turn arranged for the cocaine to be sold at the

appropriate drug points in Gautier Benitez.               Perez Alicea further

testified that Rivera Newton participated in three or four of these

transactions, helping Peligro and Perez Alicea to count the money

being exchanged and testing the quality of the cocaine.

             Fernandez Rios, the government's next witness, was the

main supplier of drugs to Negri's organization. Beginning in 1992,

he   sold    between   1,500    and    1,600        kilograms      of   cocaine    and

approximately 1,000 pounds of marijuana to Negri directly and to an


                                       -4-
associate    of    Negri   named   Yuco.      Most   of   these     drugs    were

distributed to drug points managed by Rivera Newton in Gautier

Benitez, although Negri also wholesaled some of the drugs to drug

points controlled by other traffickers.

            The third drug supplier to testify for the government was

Cesar Escobar Vazquez ("Cesar Escobar").           Cesar Escobar supplied a

total of two kilograms of heroin to Negri's organization for resale

in Gautier Benitez,3       and from June to July 1994 he also sold 2 to

3 kilograms of heroin to a drug dealer named "Davey."             Davey rented

a drug point from Negri in Barriada Morales and was one of the two

victims in the "Isla Verde murders" discussed below.

B.          Protecting Negri's Drug Empire

            During the period covered by the indictment, various

members of the conspiracy took steps to eliminate threats to

Negri's drug empire.       Of particular relevance to this case are two

multiple    murders    that   were    committed    in   furtherance     of    the

conspiracy.       The first murders, referred to at trial as the "Isla

Verde    murders,"    eliminated     Davey   and   another   drug    dealer    in

retaliation for their unauthorized encroachment on Negri's drug

points.     Perez Alicea testified that he was supplying drugs in

October 1994 to an individual named Wes Solano who, according to



     3
      While Negri primarily operated out of Gautier Benitez,
various drug suppliers testified that Negri also controlled a
limited number of drug points in two other housing projects --
Villa Del Ray and Barriada Morales.

                                      -5-
appellant, was "the head of one of Puerto Rico's most extensive and

violent drug organizations."       Solano frequented an apartment that

Perez Alicea rented in the Isla Verde area.                At one point he

arranged for Negri, Jimmy Peligro, and Cano Newton (Rivera Newton's

brother) to conduct surveillance from the apartment to determine

whether Davey and the second drug dealer were infringing on Negri's

drug points.       After confirming his suspicions, Solano and an

accomplice killed the two drug dealers the next day. Later, Solano

justified the killings to Perez Alicea as the elimination of two

individuals     who   "were   trying    to   outsmart    Negri   with   regard

to . . . certain drug points."

              The second multiple murder, dubbed the "Cayey Massacre"

by the Puerto Rico press, was the brutal torture and murder of four

individuals who supposedly stole $4.2 million in drug proceeds that

Negri   had    temporarily    stored    at   Fernandez   Rios's   residence.

Fernandez Rios testified that avenging this theft was particularly

important for Negri not only to recover the money itself, but also

because "the loss of that money had to be justified in the eyes of

the Colombians" who supplied drugs to Negri and were presumably

concerned with the security of his operation.

              On March 13, 1994, Negri informed Perez Alicea that he

had kidnaped the four individuals who committed the robbery.               One

of the individuals was shot and killed immediately, and Rivera

Newton helped direct the interrogation of the other three. Negri's


                                       -6-
associates tortured the three individuals by tearing out their

fingernails, burning them with acid, and forcing them to drink

gasoline.   They then threw the accused thieves in the back seat of

a car, where they were shot and set on fire.        Rivera Newton's

participation in the Cayey Massacre was a central issue at trial,

and ultimately an aggravating factor that led the district court to

sentence him to life imprisonment, the maximum sentence permitted

by the Guidelines.

                                 II.

A.          Hearsay Statements Admitted Under Rule 801(d)(2)(E)

            Rivera Newton claims that the district court erroneously

admitted two groups of hearsay statements under Rule 801(d)(2)(E)

of the Federal Rules of Evidence: 1) statements made by Solano to

Perez Alicea describing the Isla Verde murders, and 2) statements

made by Prieto Capota, described at trial as "Negri's triggerman,"

to Cesar Escobar concerning the Cayey Massacre and Isla Verde

murders.

            Federal Rule of Evidence 801(d)(2)(E) excludes from the

category of hearsay "statement[s] by a coconspirator of a party

during the course and in furtherance of the conspiracy."    Fed. R.

Evid. 801(d)(2)(E).    As a predicate for admitting evidence under

this rule, the trial court must conclude that "it is more likely

than not that the declarant and the defendant were members of a

conspiracy when the hearsay statement was made, and that the


                                 -7-
statement was in furtherance of the conspiracy."             United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).                  In our circuit,

this   determination     is    referred    to   as   a   Petrozziello    ruling.

Significantly, the trial court is not required to decide the

Petrozziello question prior to admitting hearsay statements under

Rule 801(d)(2)(E), but may "admit the statement[s] provisionally,

subject to its final Petrozziello determination at the close of all

the evidence."      United States v. Isabel, 945 F.2d 1193, 1199 n.10

(1st Cir. 1991).       Hence, to properly preserve an objection to a

Petrozziello ruling, a defendant must ordinarily object both when

the hearsay statements are provisionally admitted and again at the

close of all the evidence.

              Generally, "we review the trial court's determination

that statements were coconspirator statements under the clear error

standard."      United States v. Marino, 277 F.3d 11, 25 (1st Cir.

2002) (citing United States v. Mojica-Baez, 229 F.3d 292, 304 (1st

Cir. 2000)).       This deferential standard of review places a heavy

burden   on    a   defendant    seeking    to   overturn    a    trial   court's

Petrozziello ruling:

              A finding is clearly erroneous when although
              there is evidence to support it, the reviewing
              court on the entire evidence is left with the
              definite and firm conviction that a mistake
              has been committed.    Where the evidence is
              susceptible of two plausible interpretations,
              the trier of fact's choice between them cannot
              be clearly erroneous.



                                     -8-
Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1080 (1st

Cir. 1995) (internal quotation marks and citations omitted).4

Applying this standard, we consider the two hearsay statements

challenged by Rivera Newton.

          1.     Statements made by Solano to Perez Alicea
                 describing the Isla Verde murders

          Perez Alicea, one of Negri's drug suppliers, testified

over the defendant's objections to a conversation he had with

Solano about the Isla Verde murders.      According to Perez Alicea,

Solano told him that the Isla Verde victims were murdered because

"they were trying to get away with certain things at some of the

drug points that belonged to Negri." Rivera Newton claims that the

court's decision to admit this statement was clear error for two

reasons: 1) the court had no basis for concluding that Solano (the

declarant) and Rivera Newton were co-conspirators, and 2) assuming

arguendo that Solano and Rivera Newton were co-conspirators, the

hearsay   statements   could   not   logically   have   been   made   "in

furtherance of the conspiracy," Petrozziello, 548 F.2d at 23,


     4
      The parties dispute whether our review should be governed by
the even more deferential plain error standard, in light of Rivera
Newton's conceded failure to renew his objection to the court's
Petrozziello determination at the close of all the evidence.
Rivera Newton argues that his persistent, standing objections to
the court's admission of hearsay testimony throughout the trial
cured any defect arising from his failure to object yet again after
all of the evidence was submitted. Because we conclude that the
trial court did not commit clear error in admitting the hearsay at
issue, we do not reach the question of whether the trial court's
Petrozziello ruling should only be subject to review for plain
error.

                                 -9-
because they were made after the commission of the Isla Verde

murders.

            We turn first to the question of whether the district

court clearly erred in determining that Solano and Rivera Newton

were co-conspirators.     The defendant points us to United States v.

Sepulveda, 15 F.3d 1161 (1st Cir. 1993), in which we held that "a

coconspirator's statement, standing alone, is insufficient to meet

the preponderance standard of Rule 801(d)(2)(E) . . . [A]dmitting

the statement into evidence requires some extrinsic proof of the

declarant's involvement in the conspiracy."         Id. at 1181.    Rivera

Newton argues that the government was therefore "required to show,

by   some   independent   evidence,   that   [he]   was   related   to   the

conspiracy to kill two people in Isla Verde, and the existence of

a conspiracy between [him] and . . . Wes Solano."

            This   argument   construes   the   relevant conspiracy too

narrowly.    We observed in United States v. Martinez-Medina, 279
F.3d 105 (1st Cir. 2002), that

            each coconspirator need not know of or have
            contact with all other members, nor must they
            know all of the details of the conspiracy or
            participate in every act in furtherance of it.
            The [finder of fact] may infer an agreement
            circumstantially by evidence of, inter alia, a
            common purpose (such as a purpose to sell
            illicit drugs), overlap of participants, and
            interdependence of various elements in the
            overall plan.

Id. at 113-14; see also Marino, 277 F.3d at 25 ("As long as it is

shown that a party, having joined a conspiracy, is aware of the

                                  -10-
conspiracy's features and general aims, statements pertaining to

the details of plans to further the conspiracy can be admitted

against   the   party   even   if   the   party   does   not    have     specific

knowledge of the acts spoken of.") (internal citations omitted).

Here, the jury convicted Rivera Newton for broadly conspiring "to

knowingly and intentionally possess with the intent to distribute"

large quantities of illicit drugs.            The indictment specified that

           the object of this conspiracy was so (sic)
           that the defendants and their co-conspirators
           would earn money illicitly in and through drug
           trafficking and other drug related activities.
           The manner and the means by which the unlawful
           conspiracy was accomplished included the
           following . . . . [The conspirators] would []
           contract killers that would be hired . . . to
           intimidate and kill rival gang members and to
           maintain   and   stabilize   control  of   the
           organization's drug distribution points.

The evidence at trial highlighted the importance of the Isla Verde

murders in furthering the objectives of this larger conspiracy to

earn money for Negri's drug organization through the illicit

traffic of narcotics -- a conspiracy to which Rivera Newton was

undoubtedly     a   party,   viewing    the   evidence   in    the    light   most

favorable to the verdict.       See Diaz, 300 haleyrodriguez@example.org.            Accordingly,

the validity of the district court's Petrozziello ruling does not

turn on the narrow question of whether Rivera Newton conspired in

the commission of the Isla Verde murders.           To uphold the district

court's Petrozziello ruling under a clear error standard we need

only confirm that the evidence at trial permitted the trial judge


                                       -11-
to conclude that Solano and Rivera Newton were co-conspirators in

the broader drug trafficking conspiracy.

          Even setting the disputed statements to one side, see

Sepulveda, 15 F.3d   at    1181,   Perez   Alicea's   testimony     could

reasonably have led the district court to conclude that Solano

participated in the drug trafficking conspiracy by helping to

eliminate individuals who encroached on Negri's drug points. Perez

Alicea testified at length to an encounter with Negri and several

other individuals in October 1994.          Negri had obtained the keys to

an apartment in Isla Verde that Perez Alicea rented and shared with

Solano, and Negri's associates asked Perez Alicea for the location

of "the apartment that Wes [Solano] had."           After Perez Alicea led

them to the apartment, Jimmy Peligro, one of Negri's associates,

made phone calls in an effort to locate Solano.            The other members

of Negri's party began surveillance of the apartment next door to

Perez Alicea, discussing at one point how the individuals within

the apartment were "really going to be fucked" once Solano showed

up.   Perez Alicea further testified that the next day, Negri's

associates confirmed that they had made contact with Solano; within

the next three to five days Solano revealed to Perez Alicea in the

conversation at issue that he had committed the Isla Verde murders.

Perez Alicea's     uncontradicted       testimony   describing   the   period

immediately    preceding       the   Isla   Verde   murders   supports     the

interpretation that Solano participated in the broad conspiracy


                                     -12-
outlined in the indictment.           Accordingly, the trial court did not

clearly err in determining that Rivera Newton and Solano were co-

conspirators within the meaning of Rule 801(d)(2)(E).

            Rivera     Newton's      alternative         argument     that    Solano's

comments    about     the    Isla    Verde    murders     did   not    "further     the

objectives   of      the    conspiracy"      is    similarly    unavailing.         The

defendant argues that an after-the-fact description of the Isla

Verde murders could not have furthered the objective of eliminating

individuals who by that time were already dead.                     Once again, this

argument construes the relevant "objective" of the conspiracy too

narrowly.    The Petrozziello requirements are satisfied so long as

Solano's act of communicating the motivation behind the murders and

the manner      in   which    they    were    committed      furthered       the   broad

objectives of the drug trafficking conspiracy.                  In this instance,

Solano, who the appellants concede "acted, at times, as a hired gun

for   Negri,"    was   informing       a    major    drug   supplier     to    Negri's

organization that he had committed a multiple murder to protect

Negri's drug points from unauthorized use.                  The trial court could

reasonably   have      determined      that       this   conversation    served      the

important function of reassuring Perez Alicea that Negri's drug

organization was effectively addressing external threats to its

security and profitability.           See United States v. Ammar, 714 F.2d
238, 252 (3d Cir. 1983) ("Statements between the conspirators which

provide reassurance, serve to maintain trust and cohesiveness among


                                           -13-
them, or inform each other of the current status of the conspiracy

further the ends of the conspiracy and are admissible so long as

the other requirements of Rule 801(d)(2)(E) are met.").5

           2.     Statements made by Prieto Capota to Cesar Escobar
                  concerning the Cayey Massacre and Isla Verde
                  murders

           Approximately one month after the Cayey Massacre, Prieto

Capota recounted in detail the torture and murder of the four Cayey

victims during a conversation with Cesar Escobar, another of

Negri's drug suppliers.   At trial, Cesar Escobar repeated Prieto

Capota's description of the Cayey Massacre to the jury.    Although

the defendant concedes that he and Prieto Capota (the declarant)

were co-conspirators within the meaning of Rule 801(d)(2)(E), he

argues that the statements are nonetheless inadmissible for two

reasons:   1) the statements did not further the objectives of the

conspiracy as required by Petrozziello, and 2) the statements were

unduly prejudicial and should have been excluded under Rule 403.

Once again, in light of Rivera Newton's failure to raise the Rule



     5
      Rivera Newton also claims, belatedly, that the trial court
should have excluded this portion of Perez Alicea's testimony on
grounds that its probative value was outweighed by its prejudicial
effect. Fed. R. Evid. 403. Because Rivera Newton never raised
this objection below, we review for plain error only.       United
States v. Balsam, 203 F.3d 72, 85-86 (1st Cir. 2000). Applying
this highly deferential standard, we do not find that the trial
court's decision to admit this testimony under Rule 403 was an
error "so shocking [as to] seriously affect the fundamental
fairness and basic integrity of the proceedings conducted below."
United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987).


                               -14-
403 objection below, we review the trial court's decision to admit

Cesar Escobar's testimony under Rule 403 for plain error, and apply

a    clear   error    standard   to    the   trial   court's   Petrozziello

determination.       These claims of error are indistinguishable from

Rivera Newton's Petrozziello and Rule 403 arguments challenging the

admission of Perez Alicea's testimony, and we reject them for the

reasons outlined above.6

B.           The Exclusion of Rivera Newton's Acquittal on State
             Murder Charges Stemming from the Cayey Massacre

             Prior to trial, the government filed a motion in limine

to prohibit Rivera Newton from alluding to his previous acquittal

in state court on murder charges stemming from the Cayey Massacre.

The district court granted the motion, relying, inter alia, on our

prior decisions specifying that "a district court has discretion to

exclude from evidence acquittals or other favorable outcomes of

prior state court proceedings involving the same subject matter."

United States v. Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998);


      6
      Rivera Newton cursorily raises Petrozziello and Rule 403
claims challenging the trial court's admission of other testimony
from Cesar Escobar regarding 1) an argument between Negri and
Davey, one of the Isla Verde victims, and 2) Cesar Escobar's
conversations with an ex-partner and a car dealer in which he was
told that Davey had been killed at Isla Verde. "[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived."      United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if Rivera Newton had
not abandoned these arguments on appeal, we would have no cause to
reverse the district court's decision to admit this testimony under
the plain error standard of review occasioned by appellant's
failure to raise contemporaneous objections to these statements
below.

                                      -15-
see also United States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998).

Citing Federal Rule of Evidence 403, the judge also concluded that

"the probative value of the acquittals is substantially outweighed

by the danger of unfair prejudice."

           Although Rivera Newton does not challenge the district

court's authority to grant the motion in limine, he argues that the

prosecution took unfair advantage of the trial court's ruling by

repeatedly referring to the fact that he had been charged with the

Cayey murders, knowing that he could not dispel the prejudice

arising from those references by introducing the fact of his

acquittal.   As a threshold matter, both parties misrepresent the

extent to which the government referred to Rivera Newton's state

murder   charges.   The   defendant    alleges   that   the   prosecution

"allowed the fact of the prior trial to permeate its evidence,"7

while the government retorts that "[a]t no time during trial were

appellant's charge, arrest or acquittal mentioned."           In fact, our



     7
      This misstatement perhaps reflects the appellant's efforts to
conflate testimony concerning the Cayey Massacre itself with
testimony referring to the state murder charges brought against
Rivera Newton in the aftermath of the incident. The government
matter-of-factly concedes in its brief that the former was a major
element of their case, asserting that "the Cayey Massacre proved to
be this violent organization's way to recuperate millions of
dollars in drug proceeds stolen from them, and a way to demand
respect from non-members." We agree with the government that the
introduction of evidence pertaining to Rivera Newton's acquitted
conduct did not preclude the judge from excluding the fact of
Rivera Newton's acquittal. United States v. Candelaria-Silva, 166
F.3d 19, 35 (1st Cir. 1999); Smith, 145 F.3d at 462 (1st Cir.
1998).

                                -16-
review of the record reveals a single instance in which the

government elicited a reference to Rivera Newton's state murder

trial.   During the prosecution's direct examination of Antonio

Garay Fonseca, a longtime acquaintance of Rivera Newton, the

following exchange occurred:

          Q:       I ask you, sir, have you ever heard about what is
                   known as the Cayey massacre?

          A:       Yes.

          Q:       How is it that you, yourself find out?              Where
                   were you when you found out?

          A:       I was in jail here in the prison in Guaynabo.

          Q:       And I ask you, sir, now, have you ever discussed
                   the event of the Cayey massacre with Luis El Mono
                   [Rivera Newton]?

          A:       Yes, on several occasions.

          Q:       Can you please tell us what was the contents of
                   that conversation?

          A:       Well, I asked him how his case, the case
                   involving the massacre was coming along.

          Rivera Newton argues that the court erred by failing sua

sponte to alleviate the prejudice from this exchange in one of two

ways: 1) the court could have rescinded its ruling in limine and

permitted Rivera Newton to "present the other half of the story" by

introducing the fact of his acquittal, or 2) the court could have

expressly instructed the jury not to consider the state murder

charges as     evidence   of   Rivera   Newton's   guilt   on   the   federal

indictment.    Because Rivera Newton did not ask the trial court to


                                   -17-
rescind its earlier ruling excluding evidence of his acquittal or

give the aforementioned jury instruction, we review the errors

alleged for plain error.            Garay Fonseca's reference to Rivera

Newton's state prosecution for murder, occurring within the context

of a nine-day trial that generated over nine hundred pages of trial

testimony,   did    not   require    the   court   to   reverse   its   earlier

decision to exclude evidence of Rivera Newton's acquittal or

provide a curative jury instruction.           The former remedy presented

an unwarranted risk of confusing the jury, while the latter would

likely have attracted more attention to the state murder charges

than Garay Fonseca's remark.         In any event, this reference was not

"so   shocking     that   [it]   seriously     affect[ed]   the   fundamental

fairness and basic integrity of the proceedings conducted below."

Griffin, 818 haleyrodriguez@example.org.

           Rivera Newton also draws our attention to a second

reference to his state murder charges elicited by his own lawyers

over the government's objection.             Jose Quiñonez Robles, the FBI

agent assigned to Rivera Newton's case, was asked by defense

counsel during cross-examination whether he was aware that Rivera

Newton had no criminal record.             After the court overruled the

government's objection to the question, Quiñonez responded: "Yes,

I know that he was accused in the local system for participating in

the Cayey massacre."        Pressed further, Quiñonez clarified that

Rivera Newton had only been accused of murder at the state level,


                                      -18-
and that to his knowledge the defendant did not have a criminal

record.

           Quiñonez's evasive response to defense counsel's question

regarding Rivera Newton's criminal record is disturbing.               As an

experienced FBI agent, he presumably understood the difference

between a criminal record and a criminal charge, and his answer was

clearly not responsive to defense counsel's inquiry.        Nonetheless,

the defense did not move to strike Quiñonez's testimony. Arguably,

his reference to the state charges even benefitted the defense.

There had already been a reference to the state case in the earlier

testimony of Garay Fonseca.        Quiñonez's subsequent mention of the

state accusations permitted Rivera Newton's counsel to extract the

concession that, to the witness's knowledge, Rivera Newton had no

criminal record, thereby prompting a possible inference by the jury

that Rivera Newton was acquitted of the state charges. Regardless,

we find no error, let alone plain error, in the trial court's

failure to instruct the jury sua sponte to disregard the statement.

C.         Conflict of Interest

           Three days before the beginning of Rivera Newton's trial,

the government alerted the district court to information obtained

from Fernandez Rios, a government witness, regarding arrangements

by Negri's drug organization to finance the legal defense of Rivera

Newton    and   other   criminal     defendants    associated   with     the

organization in prior state proceedings.          Specifically, Fernandez


                                    -19-
Rios revealed during an interview that after several members of

Negri's drug organization were indicted in March 1995 on state

murder charges stemming from the Cayey Massacre, he informed a

Colombian drug source named "Mauricio" that the Cayey defendants

needed financial assistance for their legal defense.           Mauricio

agreed to send Fernandez Rios forty kilograms of cocaine to pay for

their legal expenses, and Fernandez Rios subsequently arranged to

sell the cocaine in the United States for approximately $20,000 per

kilogram. The proceeds from this drug shipment were turned over to

Ramon Delgado ("Bronco"), an attorney who was closely associated

with Negri.   While Fernandez Rios could not identify the attorneys

who received money from Bronco, he had reason to believe that Edgar

Vega-Pabón,   one   of   Rivera   Newton's   attorneys   in   the   state

proceedings, and now one of his attorneys in this federal case, may

have been paid from this drug fund for defending an individual

named Ismael Vega in another case.       However, the government had no

direct evidence that Bronco paid Vega-Pabón to defend Rivera

Newton, or that José Andreu, Rivera Newton's other trial attorney

in this case, ever received money from Bronco.      In fact, during the

colloquy between the court and attorneys from both sides that

followed the government's presentation of these facts, Vega-Pabón

denied that he had ever knowingly received funds from Bronco.

          According to Rivera Newton, the fact that his attorneys

may have been compensated through Bronco's legal defense fund


                                  -20-
created a possible conflict of interest for the following reason:

if Vega-Pabón and Andreu feared that Fernandez Rios would expose

them as beneficiaries of Bronco's legal defense fund, they may have

tempered their cross-examination of a crucial witness for the

government.8      Alerted   to   the    possibility    of   a   conflict,   the

district court questioned Rivera Newton to ensure 1) that he was

aware of the potential conflict of interest, 2) that his attorneys

had explained the relevant circumstances to him, and 3) that he

nonetheless wished to retain Andreu and Vega-Pabón as defense

counsel.    After hearing the court recite the information conveyed

earlier    by   the   government,   Rivera    Newton   confirmed    that    his

attorneys had previously discussed the matter with him, and assured

the court that he wanted them to continue as counsel.                  Rivera

Newton now claims on appeal, however, that the court's failure to

more fully explain how this conflict of interest could manifest

itself at trial constitutes reversible error under the Sixth

Amendment: "[F]aced with these troubling assertions, [the court]

had a duty to describe or illustrate why Appellant might prefer to

have counsel not likely to be distracted by the threat that




     8
      Rivera Newton articulates the gravity of the conflict more
colorfully in his Reply Brief, arguing that "Andreu was virtually
precluded from cross-examining Fernandez, lest Fernandez accuse him
of knowing receipt of drug proceeds (at a minimum) from the witness
stand.   Indeed, Andreu's mere presence at counsel table was a
liability for Appellant because the jury might well infer that his
role was to represent the interests of the conspiracy."

                                       -21-
[Fernandez Rios] would persist in his allegations [that counsel had

been compensated by Bronco]."

            The defendant's claim of error is styled somewhat oddly.

He expressly disclaims any argument that the trial court's failure

to adequately explain the potential conflict of interest induced

him   to   retain   counsel   who   rendered     ineffective    assistance,

specifying that "[r]ather than an ineffective assistance claim,

Appellant has raised only the narrow issue of the legal sufficiency

of the District Court's colloquy to determine whether Appellant was

aware of a potential conflict of interest with his attorney and

wished to waive it" (emphasis added).            Put another way, Rivera

Newton argues that the trial court's failure to describe adequately

the conflict of interest constitutes reversible error requiring a

new   trial,   irrespective   of    the    quality   of   defense   counsels'

performance: "[I]t is the failure to explain the nature of the

conflict that would allow Appellant to make an intelligent waiver,

not any specific trial error, that requires this court's remedial

attention."

            The circumstances of this case provide no basis for

overturning a conviction on Sixth Amendment grounds absent any

allegation by the defendant that the performance of defense counsel

suffered as a result of the alleged conflict.                In Mickens v.

Taylor, 535 U.S. __, 122 S. Ct. 1237 (2002), the Supreme Court

expressly rejected a rule of automatic reversal in cases where a


                                    -22-
defense attorney's conflict of interest does not adversely affect

counsel's performance, observing that such a rule "makes little

policy sense."        Id. at 1244.    The Court elaborated that a trial

court's failure to adequately investigate a potential conflict of

interest

              neither renders it more likely that counsel's
              performance was significantly affected nor in
              any other way renders the verdict unreliable.
              Nor does the trial judge's failure to make the
              Sullivan-mandated inquiry9 [] make it harder
              for reviewing courts to determine conflict and
              effect, particularly since those courts may
              rely   on   evidence   and   testimony   whose
              importance only becomes established at the
              trial.

Id.        Because   adverse   performance   is   the   touchstone   of   Sixth

Amendment error under the Supreme Court's actual conflict-of-

interest jurisprudence, Mickens, 122 S. Ct. at 1244 n.5, Rivera

Newton's argument for per se reversal on grounds that the judge

inadequately explained the nature of the particular conflict is at

odds with controlling Supreme Court precedent.10


      9
      In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court
promulgated a rule requiring trial courts to conduct an inquiry if
they "know or reasonably should know" that defense counsel is
laboring under a conflict of interest. Id. at 347.
      10
      Our decision in United States v. Foster, 469 F.2d 1 (1st Cir.
1972), relied upon heavily by Rivera Newton, does not permit
automatic reversal here. In Foster, we exercised our supervisory
powers to require district courts to explain to defendants in
detail the risks of proceeding to trial "where one attorney speaks
for two or more defendants." Id. at 4-5. However, this rule, now
codified as Federal Rule of Criminal Procedure 44(c), is expressly
limited to cases of joint or multiple representation, id. at 4, a
circumstance that does not exist on the facts before us.

                                     -23-
D.          The District Court's    Calculation   of Rivera Newton's
            Offense Level

            Applying sections 2D1.1 and 2A1.1 of the United States

Sentencing Guidelines, the district court sentenced Rivera Newton

to life imprisonment, the maximum sentence permitted under the

Guidelines.    The court predicated its sentence on two alternative

Guidelines calculations, either one of which, standing alone,

mandated the imposition of a life sentence.       First, applying the

"murder cross reference" provision of U.S.S.G. § 2D1.1(d)(1), the

court determined by a preponderance of the evidence that Rivera

Newton's role in the Cayey Massacre warranted a base offense level

of 43.    After adding a three-level enhancement for Rivera Newton's

leadership role in the conspiracy and a two-level enhancement for

possession of a weapon during the course of the offense, the court

calculated a total offense level of 48.11   Alternatively, the court

attributed to Rivera Newton responsibility for distributing in

excess of 150 kilograms of cocaine, resulting in a base offense

level of 38.    U.S.S.G. § 2D1.1(c)(1).   The court increased Rivera



Furthermore, under Foster, violations of this rule do not trigger
automatic reversal, but merely shift the burden of persuasion to
the government "to demonstrate from the record that prejudice to
the defendant was improbable." Id. at 5. Here, the government
would easily satisfy this burden in the absence of any allegation
by Rivera Newton that he was prejudiced by defense counsel's
haleyrodriguez@example.org.
     11
      As the district court noted, "the guidelines do not go above
43." Accordingly, any offense level of 43 or above is punishable
by a life sentence.

                                 -24-
Newton's offense level under this second calculation to 43 after

adding five points for leadership and possession of a weapon.

Hence, Rivera Newton was subject to life imprisonment under either

sentencing calculation.

            On   appeal,     Rivera   Newton   challenges     both    Guidelines

calculations on three grounds: 1) the court violated his due

process rights by applying U.S.S.G. § 2A1.1 after finding by a

preponderance of the evidence that he had participated in the Cayey

Massacre, 2) the court unreasonably attributed to Rivera Newton

responsibility for the entire quantity of drugs handled by Negri's

organization, and 3) the court erroneously concluded that Rivera

Newton was a leader in the drug conspiracy.           We find no reversible

error in the district court's application of the murder cross-

reference provision of section 2D1.1(d)(1), which alone results in

a   base   offense   level    of   43.    Accordingly,      we   do   not   reach

appellant's      claims    implicating       the   district      court's    drug

calculation and three-level leadership enhancement.

            1.   Legal analysis

            Section 2D1.1 is the provision of the Guidelines that

governs the sentencing of defendants like Rivera Newton convicted

of "Unlawful Manufacturing, Importing, Exporting or Trafficking;

Attempt or Conspiracy." Subsection (d) of this provision, entitled

"Cross References," provides the following: "If a victim was killed

under circumstances that would constitute murder under 18 U.S.C.


                                      -25-
§ 1111 had such killing taken place within the territorial or

maritime jurisdiction of the United States, apply § 2A1.1 (First

Degree Murder)." Section 2A1.1 of the Guidelines, in turn, directs

the court to assign a base offense level of 43 to any defendant

whose conduct falls within the provision.          The district court

invoked § 2A1.1 in calculating defendant's sentence, determining

that "although he did not participate directly in the actual

killing [of the Cayey Massacre victims], certainly he was part of

the planning, he was there . . . . He participated in the torturing

after these three individuals had been kidnaped at a distance from

Gautier Benitez."

          We   review   the   district   court's   application   of   a

particular sentencing guideline de novo.      United States v. Padro

Burgos, 239 F.3d 72, 76 (1st Cir. 2001).       Appellant argues that

there is an element of unfairness in the district court's decision

to impose a sentence at the upper end of the guideline range for

conduct that Rivera Newton was previously acquitted of in state

court.   Nonetheless, as Rivera Newton concedes, the law as it

currently stands affords us no basis for overturning his sentence

on due process grounds.       As we observed in United States v.

Lombard, 72 F.3d 170 (1st Cir. 1995):    "A sentencing court may . .

. consider relevant conduct of the defendant for purposes of making

Guidelines determinations, even if he has not been charged with --

and indeed, even if he has been acquitted of -- that conduct, so


                                 -26-
long as the conduct can be proved by a preponderance of the

evidence."       Id. at 176 (original emphasis).

            Our post-Apprendi jurisprudence provides no succor to the

defendant.       In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Supreme Court ruled that "any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt."                     Id. at 490

(emphasis added).       Our decisions following Apprendi emphasize that

district court judges have broad latitude to make factual findings

that vary a defendant's sentence within the prescribed statutory

range.   Indeed, in United States v. Martinez-Medina, 279 F.3d 105

(1st Cir. 2002), we rejected an Apprendi argument nearly identical

to Rivera Newton's challenge in this case.                 The defendants in

Martinez-Medina similarly attempted to overturn life sentences on

grounds that "the sentencing court violated Apprendi by finding,

under a preponderance of the evidence standard, that they played a

role in various conspiracy murders, thus subjecting them to life

imprisonment."       Id. at 122.      There we noted that "[t]he argument

fails . . . because Apprendi does not apply to findings made for

purposes    of    the   sentencing     guidelines,     such    as   the    court's

determination      that    the     appellants   were    accountable       for   the

murders."    Id.

            However,      Rivera    Newton    now   requests   that   we    expand

Apprendi to require juries to find beyond a reasonable doubt that


                                       -27-
the defendant committed murder before the sentencing court is

permitted to apply the "cross-reference" provision of section

2D1.1(d)(1).    We decline this invitation to expand Apprendi, as we

have on prior occasions:

           We . . . decline the appellant's invitation to
           expand the Apprendi rule . . . . Giving
           [Apprendi   its]   plain   meaning,  sentence-
           enhancing facts still may be found by the
           judge under a preponderance-of-the-evidence
           standard as long as those facts do not result
           in a sentence that exceeds the original
           statutory maximum. Indeed, the Apprendi Court
           itself commented that nothing in the history
           of criminal jurisprudence suggests that it is
           impermissible    for    judges   to   exercise
           discretion in imposing a judgment within the
           range prescribed by statute.

United States v. Robinson, 241 F.3d 115, 121 (1st Cir. 2001)

(internal quotation marks omitted) (original emphasis).

           2.   Factual findings

           Rivera Newton further contends that the district court's

application of U.S.S.G. § 2D1.1(d)(1) was not supported by a

preponderance of the evidence.          We review the factual findings

underlying   the   district   court's     application   of   a   particular

sentencing guideline for clear error.         Padra Burgos, 239 F.3d at

76.   The court heard eyewitness testimony from William Del Valle-

Caraballo, a resident of the Gautier Benitez housing project, who

observed Rivera Newton holding a .38 caliber nickel-plated pistol

the night before the Cayey Massacre during a meeting with Negri and

other members of the drug trafficking organization.          The next day,


                                   -28-
Del Valle observed three individuals with bloodstained clothing as

they were pulled out of a car and taken behind a neighboring

building.        Del   Valle    further     testified   that    after   the   three

individuals were brought back to the car, Rivera Newton raised and

lowered a red gasoline can with a white spout as if he were

spraying gasoline inside the vehicle.

            Much of Del Valle's testimony was corroborated by Cesar

Escobar, who testified that he was told by Prieto Capota that the

Cayey victims were thrown into the back seat of a car, forced to

drink gasoline, and then executed and set on fire.                Finally, Garay

Fonseca, Negri's long-time acquaintance, testified that Rivera

Newton admitted to committing the murders:

            Q:         Sir, I ask you, did there ever come a time when
                       the defendant, Luis El Mono, admitted to you what
                       was his participation in the massacre of Cayey?

            A:         Yes.

            Q:         And what did he admit to you?

            A:         Well, his words, he said that he killed them.

In the face of this evidence, we find no clear error in the

district    court's      decision     to    invoke    section    2D1.1(d)(1)     in

assigning the defendant a base offense level of 43.

                                        III.

            Notwithstanding defense counsel's vigorous efforts on

Rivera Newton's behalf throughout this appeal, our close review of

the   record     reveals       no   error   that     warrants   overturning     the


                                        -29-
conviction or sentence.   Accordingly, the judgment of the district

court is affirmed.

          So ordered.




                                -30-
