Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2002

USA v. Perez
Precedential or Non-Precedential:

Docket 0-5237




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Filed February 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 00-5237, 00-5238, 00-5261

UNITED STATES OF AMERICA

v.

LINETTE PEREZ, Appellant in No. 00-5237

UNITED STATES OF AMERICA

v.

JUANCHO ALCANTERA, Appellant in No. 00-5238

UNITED STATES OF AMERICA

v.

EDMUNDO BATOON, Appellant in No. 00-5261

Consolidated Appeals From the
United States District Court
For the District of New Jersey
(D.C. Crim. No. 99-cr-00100-3, No. 99-cr-00100-4 and
No. 99-00100-6)
District Judge: Honorable John W. Bissell

Argued: December 12, 2000

Before: SCIRICA, AMBRO, Circuit Judges, and
POLLAK, District Judge*
_________________________________________________________________

* The Honorable Louis H. Pollak, Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.
(Filed: February 4, 2002)

       James A. Galdieri (Argued)
       Miller & Galdieri
       32 Jones Street
       Jersey City, NJ 07306

       Attorney for Appellant
       Linette Perez

       Paul X. Escandon
       414 Corlies Avenue
       Allenhurst, NJ 07711
       Stephen M. Latimer (Argued)
       131 Main Street
       Suite 235
       Hackensack, NJ 07601

       Attorneys for Appellant
       Juancho Alcantera

       Robert Kasenow, II (Argued)
       401 Broadway, Suite 1401
       New York, NY 10013

       Attorney for Appellant
       Edmundo Batoon

       Robert J. Cleary
       United States Attorney
       George S. Leone
       Chief, Appeals Division
       970 Broad Street
       Newark, NJ 07102-2535

       Norman J. Gross (Argued)
       Assistant United States Attorney
       United States Attorney's Office
       Camden Federal Building and
        United States Courthouse
       P.O. Box 2098
       Camden, NJ 08101-2098

       Attorneys for Appellee
       United States of America

                                  2
OPINION OF THE COURT

AMBRO, Circuit Judge

Defendants/Appellants Linette Perez ("Perez"), Juancho
Alcantera ("Alcantera"), and Edmundo Batoon ("Batoon")
appeal their convictions on the charge of conspiracy to
distribute and possess with the intent to distribute
methamphetamine, a Schedule II controlled substance, in
the District of New Jersey and elsewhere in violation of 21
U.S.C. S 846 and S 841(a)(1). All three were convicted by a
jury in the United States District Court for the District of
New Jersey. In this appeal, Appellants challenge their
convictions on numerous grounds, one of which is a
question of first impression for this Court -- whether and
under what circumstances the trial court must give a jury
instruction on venue. Appellants Alcantera and Batoon also
challenge the District Court's ruling on a minor role
reduction, and the attributable drug quantity, at
sentencing. We affirm the convictions and sentences of
each Appellant.

I. Factual and Procedural Background

A. Factual Background

In the following recitation of the facts on which
Appellants' convictions were based, we construe those facts
in the light most favorable to the Government, as we must
following the jury's guilty verdict. Glasser v. United States,

, 80 (1942). Beginning in 1998, agents of the
Federal Bureau of Investigation and the Drug Enforcement
Agency based in New Jersey opened an investigation into
drug operations allegedly headed up by Lirio Del Rosario
("Del Rosario") based on information supplied by a
confidential source. With Del Rosario at the helm, the
organization imported and distributed crystal
methamphetamine in New York and New Jersey.

The factual scenario leading up to and encompassing the
arrest of Appellants unfolds as follows. In January of 1999,
Del Rosario's supply of methamphetamine ran low. He

                               3
dispatched Alcantera and another man to the home of
Augustin Daluro ("Daluro") in Jersey City, New Jersey to
procure more of the drug. Daluro gave twenty grams of
methamphetamine to Alcantera, without charge, for delivery
to Del Rosario. At that time, Del Rosario told Daluro that he
was getting travel documents for a woman named "Linette"
so that she could smuggle methamphetamine into the
United States as part of his operation.

In early February of 1999, members of the Queens
Narcotics Division of the New York City Police Department
("N.Y.P.D.") received information of Del Rosario's drug
operation from another confidential informant (CI-1), and
began an independent investigation. When the federal and
local investigators learned that they were conducting
parallel investigations, they agreed to pool their
information. The confidential informants tipped off the
federal and N.Y.P.D. investigators that a woman named
"Linette" would be bringing in a large shipment of
methamphetamine through John F. Kennedy Airport on
February 24, 1999. The informant offered a description of
"Linette," which was later confirmed by several customs
agents.

On February 18, 1999, Perez, who at the time was a
United States citizen living in Virginia, obtained a passport.
The following day, she purchased a round-trip ticket from
J.F.K. Airport to Manila, the Philippines, through a New
York City travel agency. Perez departed from the United
States on February 22, 1999, and checked into the Manila
Holiday Inn where she stayed for two days. While in Manila,
Perez obtained ten kilograms of crystal methamphetamine
from relatives of Del Rosario. The methamphetamine was
put into plastic baggies, hidden inside fabric shoulder pads
of women's dresses, and placed into two large cardboard
boxes.

On February 23, 1999, while Perez was still in Manila,
Del Rosario called Prajedo Almiranez ("Almiranez") and
asked him to pick up Perez when she arrived at J.F.K.
Airport, but he was unable to go. On February 24, 1999,
Del Rosario called Nestor Uy ("Uy"), a Filipino living in New
York City who occasionally repaired automobiles for Del
Rosario, and asked him to pick up Perez. Uy had met Perez

                               4
before at Del Rosario's home. Del Rosario told Uy that Perez
would be arriving at J.F.K. Airport on Asianna Airlines, and
gave Uy money to pay the excess baggage fee for the
packages Perez was bringing in from the Philippines, for a
hotel room for Perez at the Queens Motor Inn, and for gas
and food.

Perez returned to the United States that evening with the
two large boxes, arriving at J.F.K. Airport at approximately
8:35 p.m. Uy arrived late to J.F.K. Airport, and was unable
to find Perez. He called the number for Alcantera's cell
phone several times and spoke to Del Rosario, who told him
to keep looking for Perez. At the same time, several N.Y.P.D.
investigators also went to J.F.K. Airport with CI-1 to
intercept Perez, but they were unable to locate her.

Finally, Uy discovered that Perez had taken a cab to Del
Rosario's home. Uy went to the Queens Motor Inn and
reserved a room for Perez under his name, then went to Del
Rosario's apartment to pick up Perez. In Del Rosario's living
room were the two large boxes. Uy then drove Perez back to
the hotel. During the trip, Perez told Uy that she had just
smuggled ten kilos of methamphetamine into the United
States from Del Rosario's family in the Philippines, boasting
that she "had the guts to do that." Uy stayed with Perez at
the hotel briefly, then drove her to Batoon's home in
Elmhurst, Queens.

At around 10:00 a.m. the next morning, February 25th,
Almiranez picked up Perez from Batoon's home and drove
her to Del Rosario's apartment. Uy arrived at the apartment
at approximately 11:00 a.m. He saw that the boxes had
been opened, the plastic bags removed from the shoulder
pads of the dresses and cut open, and the
methamphetamine taken out. Del Rosario explained to Uy
how the methamphetamine had been packaged and how
Asianna Airlines and the customs officials protected Del
Rosario's drug shipments.

Del Rosario then called Arturo Zoletta, who had
previously delivered methamphetamine for him. Del Rosario
told Zoletta that he had a shipment of methamphetamine
for him to deliver to another person. Zoletta paged Roland
Abaia, a cab driver, to pick him up at his home. The two

                                5
drove to Del Rosario's apartment in Abaia's Lincoln
Towncar.

At approximately 2:00 that afternoon, acting on a tip
from CI-1 that Del Rosario was dealing methamphetamine
out of three possible locations, plain-clothed investigators
and uniformed officers from the N.Y.P.D. staked out Del
Rosario's apartment building, an automobile body shop,
and Uy's residence, all in Queens.

Del Rosario's apartment building was four stories high,
with four apartment units on each floor. The N.Y.P.D.
officers knew from the informant that Del Rosario's
apartment was 2C. It was located at the back of the second
floor, and one could not see the street from the inside. Nor
could the surveilling officers tell which apartment was Del
Rosario's from the outside of the building. They observed
several cars stop outside of Del Rosario's apartment
building, stay for a few minutes, then leave. Just before
6:00 p.m., the investigators observed Abaia drive up to Del
Rosario's apartment building in the Lincoln Towncar with
Zoletta in the back seat. Zoletta got out of the car and
entered the building empty-handed while Abaia waited
outside.

Zoletta emerged from the apartment building
approximately ten minutes later, carrying a clear plastic
bag with a white plastic bag inside of it. He got back into
the Lincoln Towncar, and showed the bag to Abaia. The two
drove off, followed by two of the plain-clothed police
investigators driving an unmarked police car. Zoletta
turned around and made eye contact with one of the
investigators. The investigators observed Zoletta lean over,
apparently to stuff the bag under the front seat. After
Zoletta and Abaia had driven two blocks and turned the
corner, the investigators pulled them over.

The investigators saw the clear bag with a white shopping
bag inside. In the white bag, the investigators found what
appeared to be approximately 200 grams of
methamphetamine, and they placed Abaia and Zoletta
under arrest. A search of the car uncovered more drugs
and drug paraphernalia, including a small gram-weight
scale, pipes used for smoking methamphetamine, ziplock

                                6
bags, a cell phone, and a pager. At this point, Zoletta
cooperated with the investigators, telling them that he had
worked for Del Rosario delivering methamphetamine for two
years in New York City and New Jersey. Zoletta told the
investigators that he had just been in Del Rosario's
apartment, Unit 2C, and that Del Rosario had just given
him a package of drugs to deliver. Zoletta told the
investigators that there were several people still in the
apartment.

The interchange lasted only a few minutes, after which
the officers decided to get a search warrant. However,
apparently fearing that their arrest of Zoletta would tip off
the occupants in the apartment to destroy the drugs, the
officers decided to forego getting the warrant. Instead, the
investigators returned to the apartment building and with
the uniformed officers went up to Del Rosario's apartment.
They knocked, and when a woman answered, the
uniformed officers stated that they had received a
disturbance call and asked if they could come in to see if
everyone was all right. The woman, Perez, let them into the
apartment.

Upon entering, the officers encountered Del Rosario,
Perez, Alcantera, Batoon, and Almiranez inside. A bag of
approximately 100 grams of crystal methamphetamine was
in plain view on top of the television in the living room. The
officers placed all of the occupants of the apartment under
arrest and conducted a protective sweep to secure the
premises and to assure their safety. Perez told the officers
that she had just returned from the Philippines and was
staying at the Queens Motor Inn. She gave her consent to
search the hotel room and handed the officers the key. At
this point, two of the officers left with Zoletta to obtain
search warrants for Del Rosario's apartment and Perez's
hotel room.

The officers completed the warrant affidavit with the
assistance of the Queens County District Attorney's office.
They included in the warrant reference to what was seen at
the apartment. However, due to the unavailability of judges
at the late hour, the officers had to travel to Manhattan to
obtain judicial review of the warrant application.

                               7
Meanwhile, back at the apartment, Daluro arrived with a
suitcase containing $67,500. The officers present placed
him under arrest and seized the suitcase.

At approximately 4:00 the next morning (February 26),
the officers who went for the search warrant returned to
Del Rosario's apartment with the warrant and began to
conduct a search. In the course of the search, they
discovered approximately four kilograms of crystal
methamphetamine, over $28,000 in cash belonging to Del
Rosario, hand-written records of drug transactions,
numerous plastic ziplock bags in five different sizes, several
BB rifles and pistols, three cell phones, a pager, a
combination cell phone and two-way radio, and a
bulletproof vest.

From Perez the officers seized $724, her passport, a
Virginia driver's license, and two credit cards. From her
hotel room, they seized the written itinerary for her recent
trip to Manila and credit card receipts from her stay there.
From Almiranez the officers took into custody three plastic
bags and a cigarette box containing 116 grams of crystal
methamphetamine. They captured from Alcantera a cell
phone with a battery and a pager. From Batoon they took
hold of a small amount of methamphetamine consistent
with personal use and a pager.

B. Procedural Background

On March 1, 1999, a federal grand jury issued a one-
count indictment charging Appellants and five co-defendants1
with violating 21 U.S.C. S 846 by conspiring to distribute
and to possess with intent to distribute more than one
kilogram of methamphetamine in the District of New Jersey
and elsewhere, contrary to 21 U.S.C. S 841(a)(1). Several of
the defendants filed motions to suppress the physical
evidence seized by the police. On August 18, 1999, the
District Court conducted a hearing on the motions to
suppress, and on September 10, 1999, the District Court
issued a letter opinion denying all of the suppression
motions.
_________________________________________________________________

1. The indictment charged Appellants Perez, Alcantera, and Batoon, as
well as Lirio Del Rosario, Augustin Daluro, Roland Abaia, Prajedo
Almiranez, and Arturo Zoletta.

                               8
On August 16, 1999, prior to the District Court's ruling
on the suppression motions, Daluro pled guilty to the
indictment pursuant to a cooperation and plea agreement
with the Government. On October 20, 1999, Del Rosario
pled guilty to the indictment pursuant to a plea agreement
that did not require his cooperation with the Government.
On the same day, Zoletta and Almiranez also pled guilty to
the indictment pursuant to cooperation agreements with
the Government.

The remaining defendants -- Perez, Alcantera, Batoon,
and Abaia -- were tried jointly on the charge in the
indictment. At trial, Daluro,2 Zoletta, Almiranez,3 and Uy,4
an unindicted co-conspirator, all testified on behalf of the
Government. Alcantera was the only defendant to testify. In
its motion for acquittal at the close of the Government's
case, the defense made a general application claiming that
the Government did not produce credible evidence to
sustain a conviction. The motion did not specifically raise
venue as a disputed issue, i.e., whether the trial should
have occurred in the District of New Jersey. The District
Court denied the motion, responding: "The Court
determines that there is indeed . . . sufficient evidence for
_________________________________________________________________

2. Daluro testified that he distributed methamphetamine for Del Rosario
in New Jersey and traveled to Del Rosario's apartment in New York to
pick up the drugs. He frequently saw Almiranez, who also lived in Jersey
City, New Jersey, with Del Rosario. Daluro testified further that he
occasionally encountered Batoon in Del Rosario's apartment when he
went there to pick up drugs, and that Del Rosario typically had a lot of
methamphetamine in his apartment. Daluro also testified that Alcantera
had been to his residence in Jersey City, New Jersey in late January
1999 to buy drugs for Del Rosario.

3. Almiranez testified that he sold the methamphetamine he obtained
from Del Rosario to others to resell in Jersey City, New Jersey. Almiranez
also testified that in 1998 he observed Del Rosario give between 10 and
100 grams of methamphetamine to Appellants Batoon and Alcantera in
each of their respective homes.

4. Uy testified that in the Fall of 1998, while in Del Rosario's
apartment,
he saw Del Rosario give drugs to Batoon in exchange for a "wad" of what
appeared to be twenty dollar bills. Uy testified further that in March
1999, while the two were incarcerated in Queens House, a men's
detention center in Queens, Alcantera boasted to him that he was one of
Del Rosario's sellers.

                                9
the jurors to find beyond a reasonable doubt both the
existence of the conspiracy charged in the indictment and
the participation and membership of each of the defendants
on trial in that conspiracy." At the jury charge conference
and following the charge, the defendants requested that the
District Court instruct the jury on venue. The District
Court denied this request.

On November 11, 1999, the jury returned guilty verdicts
against Perez, Alcantera, and Batoon, and acquitted Abaia.
Appellants moved for a new trial, arguing that the District
Court should have submitted the question of venue to the
jury. The District Court denied this motion, but cautioned:

       If indeed I am wrong and the law to be applied to this
       case is such that this was a matter that should have
       been submitted to the jury upon a defense request,
       upon submission of the jury instructions, then I would
       not conclude the Court's decision to do otherwise is
       harmless error. I think the evidence, in other words, as
       to the presence of venue in the District of New Jersey
       is not so overwhelming that the jury couldn't have
       decided otherwise had it been before it.

The District Court conducted sentencing hearings in
March 2000, and imposed sentences at or near the bottom
of the applicable Sentencing Guideline ranges for each
defendant.5 The Appellants filed timely appeals, which are
consolidated before us. We have jurisdiction to hear their
appeals pursuant to 28 U.S.C. S 1291.

II. Failure to Instruct the Jury on Venue

Appellants claim that the District Court erred when it
failed to instruct the jury whether the District of New
Jersey was the proper venue for their trial, as was alleged
in the indictment. As set out above, the crimes alleged with
respect to Appellants appear on their face to have occurred
primarily within New York City. The Government's evidence
tying the conspiracy to New Jersey consisted of the
testimony of Uy, an unindicted co-conspirator, and of
_________________________________________________________________

5. The District Court sentenced Perez to a term of imprisonment of 235
months. It sentenced Alcantera to 190 months, and Batoon to 152.

                                10
Daluro, Zoletta, and Almiranez, all of whom pled guilty,
that they conducted their part of the drug operation in New
York and New Jersey and encountered Appellants Alcantera
and Batoon buying drugs from and for Del Rosario.

We hold that, where the indictment alleges venue without
a facially obvious defect, the failure to instruct the jury to
determine whether that venue is proper is reversible error
only when (1) the defendant objects to venue prior to or at
the close of the prosecution's case-in-chief, (2) there is a
genuine issue of material fact with regard to proper venue,
and (3) the defendant timely requests a jury instruction.
Because the first and second prerequisites were unmet
here, the District Court did not err in failing to instruct the
jury on venue. Our reasoning for this rule and our
conclusion in this case are discussed below.

A defendant in a criminal trial has a constitutional right
to be tried in the district in which the crime was
committed. Proper venue is a safeguard that is guaranteed
twice in the Constitution. Article III, Section 2, Paragraph 3
declares that "[t]he Trial of all Crimes . . . shall be by Jury;
and such Trial shall be held in the State where the said
Crimes shall have been committed . . . ." U.S. Const. art.
III, S 2, c. 3. The Sixth Amendment to the Constitution
provides that: "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been
previously ascertained by law."6 U.S. Const. amend. VI; see
_________________________________________________________________

6. The framers, explained Justice Frankfurter in United States v.
Johnson, 

, 275 (1944), wrote the first of these provisions
into the Constitution because they were "[a]ware of the unfairness and
hardship to which trial in an environment alien to the accused exposes
him . . . ." The second provision, providing the"State and district" from
which the jury is to be drawn, serves as a reinforcement to the first
"[a]s
though to underscore the importance of this safeguard." 

in Article III is literally a venue provision because it
fixes
the place of trial, whereas the Sixth Amendment is a vicinage guarantee
because it determines from where the jurors in a criminal trial shall be
selected. "This distinction, however, has never been given any weight,
perhaps because it is unlikely that jurors from one district would be
asked to serve at a trial in another district, or perhaps, more
importantly, because the requirement . . . presupposes that the jury will
sit where it is chosen." United States v. Passodelis, 

, 977
n.3 (3d Cir. 1980).
11
United States v. Baxter, 

, 736 (3d Cir. 1989).
The Government has the burden of proving that venue is
proper. United States v. Black Cloud, 

, 272
(8th Cir. 1979).

In 1944, Congress embedded the constitutional venue
guarantee in the Federal Rules of Criminal Procedure. Rule
18 states that "[e]xcept as otherwise permitted by statute or
by these rules, the prosecution shall be had in a district in
which the offense was committed. . . ." That same year, the
United States Supreme Court, in the landmark case United
States v. Johnson, 

(1944), underscored the
importance of safeguarding the constitutional guarantee of
proper venue in criminal trials.

       These are matters that touch closely the fair
       administration of criminal justice and public
       confidence in it, on which it ultimately rests. These are
       important factors in any consideration of the effective
       enforcement of the criminal law. . . . Questions of
       venue in criminal cases, therefore, are not merely
       matters of formal legal procedure. They raise deep
       issues of public policy in the light of which legislation
       must be construed.

.

Despite its basis in the Constitution, venue in the
criminal context continues to occupy a lesser station in the
hierarchy of constitutionally-derived rights. The issue of
proper venue in a criminal proceeding can be waived by a
defendant. See United States v. Turley, 

, 63 (3d
Cir. 1989); United States v. Sandini, 

, 127 (3d
Cir. 1986), cert. denied sub nom. Moody v. United States,

(1987). Further, the standard for finding a
waiver of venue is less rigorous than that for finding a
waiver of the rights to trial by jury, to confront one's
accusers and to be free from self-incrimination. See Boykin
v. Alabama, 

(1969); 

.
In Sandini, we observed that "[o]bjections to venue are
waived if not raised in a timely manner." What is timely
depends on whether the alleged error is clear from the
indictment. Where an indictment alleges venue on its face
without an obvious defect, "the defendant has no notice

                                12
that a facially proper allegation of venue is in fact defective,
and thus there can be no waiver until the close of the
government's case." 

18 of the Federal Rules of Criminal
Procedure, Congress has the power to lay out the elements
of a crime to permit prosecution in one or any of the
districts in which the crucial elements are performed. See
United States v. Flaxman, 

(S.D.N.Y.
1969) (referencing Travis v. United States, 

(1961)). Pursuant to this power, Congress has modified the
venue safeguards by statute to fit the situation of
conspiracy. "[A]ny offense . . . begun in one district and
completed in another, or committed in more than one
district, may be inquired of and prosecuted in any district
in which such offense was begun, continued, or completed."
18 U.S.C. S 3237(a).

In addition, venue can be established wherever a co-
conspirator has committed an act in furtherance of the
conspiracy.

       We see no reason why a constructive presence should
       not be assigned to conspirators as well as to other
       criminals; and we certainly cannot assent to the
       proposition that it is not competent for Congress to
       define what shall constitute the offense of conspiracy
       or when it shall be considered complete, and do with it
       as with other crimes which are commenced in one
       place and continued in another.

Hyde v. United States, 

, 363-64 (1912); see
also United States v. Ochoa, 

, 636 (7th Cir.
2000) (stating the traditional rule that a conspiracy charge
may be tried in any district in which an overt act of
conspiracy occurred); United States v. Dabbs, 

, 1078 (11th Cir. 1998) (holding that in a conspiracy
case venue lies where the conspiracy agreement was formed
or in any jurisdiction where an overt act in furtherance of
the conspiracy was committed by any of the conspirators);
U.S. v. Bascope-Zurita, 

, 1062 (8th Cir. 1995)
(same); United States v. Al-Talib, 

, 928 (4th Cir.
1995) (same); United States v. Record, 

, 1366
(10th Cir. 1989) (same).

                               13
It is against this backdrop that we consider the
Appellants' assertion that the District Court committed
reversible error when it failed to instruct the jury on venue,
both after a request by defendants at the charge conference
and following the charge. The specific issue raised by
Appellants is whether proof of venue in a multi-district
indictment for conspiracy is a determination of fact that
must be submitted to a properly instructed jury upon
defendants' request. This precise question has not been
considered by this Court, although several other courts of
appeal have formulated varying rules governing when a trial
court must instruct the jury on venue. To resolve this
issue, we must make the threshold determinations of
whether venue is an element of an offense and, if so,
whether it presents a factual or legal question.

A. Is Venue an Element of an Offense?

Federal courts of appeals often state that venue is an
element of every offense. See, e.g., United States v. Miller,

(10th Cir. 1997); United States v. Winship,

, 1124 (5th Cir. 1984); United States v.
White, 

, 536 (5th Cir.), cert. denied, 

(1980); but compare United States v. Maldonado-Rivera,

, 969 (2d Cir. 1990) (rejecting defendants'
attempt to challenge venue based on supposed omission in
the counts with which they had been charged and stating
that "[v]enue, however, is not an element of the offense"). In
general, "[t]he Constitution gives a criminal defendant the
right to have a jury determine, beyond a reasonable doubt,
his guilt of every element of the crime with which he is
charged." United States v. Gaudin, 

, 522-23
(1995).

Further inquiry, however, reveals that the term"element"
lacks its usual force in the context of venue. What the
courts give criminal defendants on this issue with one hand
they frequently take away with the other. When courts
describe venue as an element, they often distinguish it from
"substantive" or "essential" elements. See United States v.
Kaytso, 

, 1021 (9th Cir. 1988); United States
v. Griley, 

, 973 (4th Cir. 1987); 

; Wilkett v. United States, 

, 1011
(10th Cir. 1981). The Fifth Circuit has explained that while

                               14
venue is an element, it will be protected less vigorously
than other elements. See 

.
Likewise, the Seventh Circuit has recognized that while one
may call venue an element, "it is an element more akin to
jurisdiction than to the substantive elements of the crime."
United States v. Massa, 

, 530 (7th Cir. 1982)
(citing 

). Put another way, "[v]enue is
wholly neutral; it is a question of procedure, more than
anything else, and it does not either prove or disprove the
guilt of the accused." 

.

In keeping with venue's Boswellian status as a criminal
element, courts require a lesser standard of proof than with
regard to the other elements of an offense -- a
preponderance of the evidence rather than beyond a
reasonable doubt.7 See, e.g., United States v. Barsanti, 

(4th Cir.), cert. denied, 

(1991);
United States v. Gonzalez, 

, 1054-55 (2d
Cir.), cert. denied, 

(1991); United States v.
Taylor, 

(10th Cir. 1987); 

; United States v. Males, 

(11th Cir.
1983); 

; United States v. Davis, 

(5th Cir. 1982); United States v. Haley , 

, 305 (8th Cir. 1974); United States v. Powell, 

(9th Cir.), cert. denied, 

(1974); 2 Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure S 307 (3d ed. 2000). Our Court now explicitly
joins those courts in adopting the preponderance standard
for venue, a question which we reserved in United States v.
Passodelis, 

, 977 n.4 (3d Cir. 1980).

We agree with the Seventh Circuit that venue is"an
element more akin to jurisdiction than to the substantive
elements of the crime." 

; 

. In this context, although an element strictly
speaking, venue does not automatically present a question
for the jury. We deal below with when it does.
_________________________________________________________________

7. The Tenth Circuit has pointed out that the Supreme Court in Gaudin
did not have occasion to address the proper treatment of a
nonsubstantive element like venue. 

-50 (citing

n.1).

                               15
B. When Must a Jury Instruction on Venue Be Given?

Appellants contend that whether venue is proper is
always an issue of fact for the jury to decide. The
Government, however, argues that where venue is not
disputed at trial, the court may properly find it as a matter
of law without submitting the issue to the jury. This is so,
it argues, even if venue might have been in genuine dispute
had it been raised at trial.8 We considered this fact versus
law distinction in Passodelis and held that"the question of
venue at issue here is a matter of 

.
The defendant in Passodelis was convicted of violating
federal law by making contributions to then-Governor
Milton Shapp's presidential campaign in excess of the
campaign limit and in the name of another person. There
was no dispute that Governor Shapp's campaign
headquarters were located in the Middle District of
Pennsylvania and that contributions were deposited there.
Proper venue turned on the question of "whether there
[was] evidence in the record which will support a finding
that acts which constitute elements of the crimes were
committed by Passodelis in the Middle District." 

that the Government did not provide sufficient
evidence to meet its burden of establishing that venue was
proper. 

opinion distinguished the dissent,
which argued that venue in that case was "wholly factual
[in] nature," 

as follows:

       The dissent is certainly correct in characterizing the
       central issue in dispute in this case as a factual one.
       However, we are concerned that the dissent
       misapprehends the nature of our inquiry. The dissent
       asserts that we substitute our own "verdict of
       acquittal." However, we are not reviewing whether there
       was sufficient evidence upon which a jury could have
       found Passodelis guilty, but rather whether there was
_________________________________________________________________

8. The only Supreme Court case addressing the fact versus law
distinction with respect to venue dates to 1861. In United States v.
Jackalow, 

(1861), the Supreme Court ruled that for
purposes of determining whether venue existed in one district for a
piracy conviction, the existence of a border dispute between states,
affecting the determination of where the acts actually occurred, did not
provide a basis to conclude that those acts occurred within that district.

                               16
       sufficient evidence upon which the district court could
       have found that crimes were committed by Passodelis
       in the Middle District. In fact, it is completely
       unnecessary for us to call into question any of the
       jury's findings since there is no factual inconsistency
       between the jury having found that Passodelis
       committed the crimes for which he was convicted and
       our determination that the evidence was insufficient to
       support a finding that crimes were committed by
       Passodelis in the Middle District. The two inquiries are,
       on the facts of this case, entirely separate. . . .
       [Moreover,] the determination as to whether there was
       sufficient evidence to support a finding that crimes were
       committed by Passodelis in the Middle District is a
       question of law, not of fact.

n.6 (emphasis added).9

Nine years later, in United States v. Baxter, we repeated
substantially the underscored language from Passodelis in
concluding that "the question of venue at issue here is a
matter of law. . . ." 

, 736 (3d Cir. 1989). In
Baxter, the defendant was convicted of five counts of
receiving an illegal gratuity while a public official. It was not
disputed that Baxter received the illegal payments (by way
of checks drawn on a bank account in Pennsylvania,
deposited in his bank in Arlington, Virginia), at his home in
Reston, Virginia, and that the checks were presented for
payment by the Virginia bank at the bank in Jenkintown,
Pennsylvania. 

turned on the legal
question of whether this scenario constituted a continuing
offense such that prosecution was proper either in the
applicable district where the checks were deposited
(Virginia) or where the checks were paid (Pennsylvania).
Considering the individualized acts of the defendant and
the continuing nature of the offense, we concluded that
venue was proper. Id.
_________________________________________________________________

9. We did not decide, however, the standard of proof (beyond reasonable
doubt or preponderance of the evidence) for determining venue because
"under either standard . . . the government has not met the burden." 

n.4.

                               17
We continued the theme that, at least initially, the
"district court's decision regarding proper venue was an
interpretation of law . . ." in United States v. Palma-
Ruedas, 

(3d Cir. 1997), reversed on other
grounds sub nom. United States v. Rodriguez-Moreno , 

(1999). The venue question in Palma-Ruedas was
whether "the government [can] try a defendant for using or
carrying a firearm in any venue where it may try the related
crime when the defendant neither carried nor used the
firearm in that venue." 

. It
was undisputed that the defendant only carried or used the
firearm in Maryland. Deciding the legal question, we
determined that venue in New Jersey was improper. 

Turning to this case, the District Court, in ruling on the
venue issue raised by the defense for the first time at the
jury charge conference, relied on our declarations in Baxter
and Palma-Ruedas that venue was a matter of law. In
discussing these cases, the District Court noted orally:

        [T]he determination of criminal venue is a matter for
       the court, is a matter of law, and not for the jury as a
       matter of fact.

        So with that reaffirmation of the strength of the
       Baxter rule, although in a slightly different context,
       this Court determines that it will not instruct the jury
       on the question of venue. Furthermore, the Court
       determines at this juncture that there is certainly
       sufficient evidence of proper venue in this district with
       regard to all of the defendants. So that if faced with a
       motion at this juncture to dismiss the case for lack of
       proper venue, that motion would be denied.

We take issue with the District Court's reading of our line
of venue decisions to the extent that it concludes that
venue can never pose an issue of fact that should be
submitted to a jury. The trial judge is the gatekeeper at
trial, and in so acting determines as a matter of law
whether there are sufficiently disputed issues of material
fact to be decided by the jury. In Passodelis , we were able
to rule as a matter of law because we were reviewing the
legal question of "whether there was sufficient evidence

                               18
upon which the district court could have found that crimes
were committed . . . in the . . . District." 

n.6 (emphasis added). In Baxter and Palma-
Ruedas, we could rule as a matter of law because the
necessary facts were established and only the legal
question of how broadly we would define venue remained.

; 

.
Thus, in Baxter, whether checks were presented for
payment in Jenkintown, Pennsylvania would have been a
factual inquiry affecting venue had it been in dispute, but
it was not. Similarly, in Palma-Ruedas, whether the
defendant carried a firearm in New Jersey would have
raised a fact question affecting venue except that the
Government conceded that the defendant had never done
so. Instead it argued that venue in New Jersey was proper
as a matter of law because the predicate offense of
kidnapping had taken place in part in that state.

In this case, the District Court found sufficient evidence
existed to show as a matter of law that venue in New Jersey
was suitable, i.e., congruent with some aspect of the
conspiracy crime being committed in New Jersey. This was
a proper determination for the Court to make.10 As noted
below, the Government's evidence on the matter was
sufficient to establish venue by a preponderance, and
Appellants did not interpose evidence at trial to raise a
material dispute over this issue such that it needed to be
resolved by the jury. In this context, it was not unlike the
undisputed threshold issues of fact in Baxter and Palma-
_________________________________________________________________

10. Several Courts recognize that venue can be"a question of fact" that
ordinarily must be decided by the jury. United States v. Miller, 

, 749 (10th Cir. 1992) (citing United States v. Rinke, 

,
584 (10th Cir. 1985)); United States v. Record , 

, 1370
(10th Cir. 1989); United States v. Winship, 

, 1124 (5th Cir.
1984); United States v. Black Cloud, 

, 272 (8th Cir. 1979)
("Whether the receipt of the firearm in question occurred in the District
of North Dakota, so that venue in that district was proper, was a
question of fact for the jury."); Green v. United States, 

,
856
(5th Cir. 1962); United States v. Gillette, 

, 452 (2d Cir.
1951)). But this does not mean that every venue determination presents
a jury question. For whether sufficient evidence exists to support a
finding that crimes were committed in New Jersey is a question of law
for the court. See 

n.6.

                               19
Ruedas. Put another way, proper venue in a criminal case
may pose a question of fact for the jury if venue is in issue
and meets procedural trip points.

When then is venue genuinely in issue, particularly in
the context of conspiracy? This question has not been
addressed directly by this Court, although in United States
v. Turley, 

, 60 (3d Cir. 1989), United States v.
Sandini, 

(3d Cir. 1986), and United States v.
Polin, 

(3d Cir. 1963), we addressed the
broader question of when the failure to object to venue
results in the defendant waiving the issue altogether. What
we consider here is not simply when a defendant waives his
right to challenge venue completely, but when venue
presents a fact question for the jury as opposed to a
question of law for the court.

The precise issue of when venue is "in issue" so as to
raise a fact question for the jury is one on which our sister
courts of appeal differ. The more narrow view, followed by
the Fifth and Seventh Circuits, holds that venue is not in
issue unless it is actually disputed at trial. See 

; 

. But the
Tenth Circuit holds that "failure to instruct[the jury] on
venue, when requested, is reversible error unless it is
beyond a reasonable doubt that the jury's guilty verdict on
the charged offense necessarily incorporates a finding of
proper venue." 

. Straddling these
opposing positions are the Fourth and Eighth Circuits,
which hold, on the one hand, that venue is in issue
whenever defendants might otherwise be convicted"of the
offenses charged without an implicit finding that the acts
used to establish venue had been proven," United States v.
Martinez, 

, 376 (4th Cir. 1990); United States
v. Moeckly, 

, 461 (8th Cir. 1985), which is the
Tenth Circuit's position, but on the other hand have found
harmless the refusal by the trial court to instruct on venue
because evidence that criminal acts occurred in the
applicable districts was substantial and uncontroverted.

; 

.

In Massa, the Seventh Circuit adopted an"in issue" rule
that looks to whether trial testimony established venue as
a disputed issue of fact. It concluded that the trial court did

                               20
not err "in denying a specific venue instruction where the
issue of venue was not disputed" at 

.
The trial court ruled that venue had been established as a
matter of law based on (1) the sufficiency of the
Government's proof that venue existed in the Northern
District of Indiana as per the indictment, and (2) the fact
that Massa did not contest venue by presenting any
contrary evidence. 

Court affirmed and
stated that "[w]here venue is not in issue, no court has ever
held that a venue instruction must be given." 

In Winship, the Fifth Circuit followed a harmless error
analysis, though it nonetheless noted that trial testimony is
a precondition to putting venue in issue. There the
defendants were charged with, among other counts,
conspiracy to possess with the intent to distribute
marijuana and methamphetamine in Texas, Oklahoma, and
Louisiana. Although neither defendant was present in the
Western District of Louisiana where venue was laid, the
trial testimony of several indicted co-conspirators connected
them with distribution activities in that district. 

On appeal, the Fifth Circuit addressed whether the trial
testimony put venue genuinely in issue. It concluded that
the uncontroverted evidence that the charged drug activity
occurred in the Western District of Louisiana was so
overwhelming that trial testimony did not put venue"in
issue." 

Therefore, the trial court's failure to
instruct the jury in that case was harmless error. The Fifth
Circuit nonetheless admonished against the trial court's
failure to give the venue instruction, noting that"the better
procedure is to give the venue instruction when requested,
regardless of whether the trial court believes trial testimony
has put venue in issue." 

n.13.

We find the approach to the "in issue" test formulated by
the Fifth and Seventh Circuits to be more persuasive than
the broader view taken (at least theoretically) by the Fourth,
Eighth and Tenth Circuits. Venue cannot be in issue unless
the parties actually dispute it. It is an element"more akin
to jurisdiction than to the substantive elements of the
crime." 

. Moreover, objections to
venue are waived if not raised in a timely manner. 

. An issue that has been waived because no

                               21
one has objected to it should not at the same time be "in
issue" so as to require a jury instruction. That paradoxical
result, however, appears to be the upshot of a broad"in
issue" rule. Moreover, the reality that the Fourth and
Eighth Circuits have followed conclusions that venue was
properly "in issue" with harmless error analyses affirming
the decision not to submit the question to the jury
demonstrates the efficiency of requiring parties to bear the
consequences of their own inaction.

We conclude that, where the indictment alleges venue
without a facially obvious defect, if (1) the defendant objects
to venue prior to or at the close of the prosecution's case-
in-chief, (2) there is a genuine issue of material fact with
regard to proper venue, and (3) the defendant timely
requests a jury instruction, venue becomes a jury question
and the court must specifically instruct the jury on venue.11
These three requirements are separate. The purpose of
objecting to venue prior to or at the close of the
prosecution's case is to alert the prosecution to the issue
and thereby avoid waiving it under Sandini and Polin. A
defendant may object to venue by raising its absence in a
pre-trial motion, challenging during the Government's case
its evidence as to venue, or making a motion for acquittal
at the close of the Government's case that specifically deals
with venue.

Even if a defendant properly objects to venue, however, it
does not become a fact question for the jury unless the
defendant also places it in issue by establishing a genuine
issue of material fact with regard to venue. Trial testimony
may place venue in issue at any time prior to the close of
evidence.12
_________________________________________________________________

11. While we hold that the trial court was not required to give a venue
instruction under the facts of this case, the better practice is to give
the
instruction when requested. This is especially the preferred course in
this case, where the trial judge later offered that"the evidence . . . as
to
the presence of venue in the District of New Jersey is not so
overwhelming that the jury couldn't have decided otherwise had it been
before it."

12. Our ruling that venue is in issue if the defendant does no more than
introduce direct evidence during the defense presentation does not run

                               22
When either the time for a venue objection or the
opportunities to establish the facts placing venue in issue
pass unavailed, venue is waived even if a jury instruction is
requested. Objecting to venue at the jury instruction phase,
without more, is not sufficient, for it does not flag and
establish an issue of fact that warrants a special jury
instruction. As the Seventh Circuit noted in Massa, "where
venue is not in issue, no court has ever held that a venue
instruction must be 

. Furthermore,
we agree with the Court in Massa that "where venue is not
disputed and the Government presents sufficient evidence
of venue . . . ", it is a matter "particularly suited to
determination by the court as a matter of law." 

Finally, as a procedural matter, a defendant who has both
properly objected to venue and placed it in issue must also
timely request a jury instruction on it.

We now apply this rule to the facts of the case before us.
Here we have an unchallenged indictment that alleges a
conspiracy in New Jersey, buttressed by trial testimony of
two alleged co-conspirators that overt acts in furtherance of
the conspiracy occurred in New Jersey.13 No countervailing
evidence was introduced by the Appellants nor did they at
or before trial challenge the Government's case in any way.
Instead, they now counter merely that the Government's
_________________________________________________________________

afoul of the rule in 

, that, where the indictment
alleges facially valid venue, objections to venue are waived if not raised
at or before the close of the Government's case. The timing cutoff of
Sandini and Polin refers to when the defendant must object to venue.
Having made a timely objection, the defendant normally needs to present
testimony that places venue in issue at any time prior to the close of
evidence. Alternatively, the court may find that the Government's
testimony places venue in issue notwithstanding the defense
presentation.

13. This begs the question of what happens if the Government previously
alleged venue in the indictment but offered no testimony at trial proving
venue. If no defense objection is raised at or before the close of the
Government's case, Sandini and Polin instruct that, notwithstanding the
lack of prosecution testimony, the venue defense is waived. This "give[s]
the government an opportunity . . . to provide additional proof, if
possible, to cure an insufficient presentation on venue." 

.

                               23
proof of venue rests entirely on testimony from alleged co-
conspirators. The Government cites the Fifth Circuit's
decision in Winship to support the view that testimony from
admitted co-conspirators can sufficiently support a finding
of venue as a matter of 

. We agree.
The Government in this case met the minimum
requirements.

We conclude that the District Court's refusal to instruct
the jury on venue, based on the facts of this case, was not
in error despite the defense request for a jury instruction.
Appellants' general application for acquittal at the close of
the Government's case claiming that the Government did
not produce credible evidence to sustain a conviction,
which would have been timely, failed to alert the
Government and the Court specifically to the alleged
impropriety of venue. Moreover, trial testimony failed to put
venue in issue by creating a genuine issue of material fact
that required resolution by a jury. Appellants offered no
objection to the indictment, which clearly alleges a
conspiracy in the District of New Jersey. Nor did Appellants
challenge or contradict (by cross-examination or evidence
introduced during the defense presentation) the venue
testimony of the indicted co-conspirators offered by the
Government, which recalled specific overt acts in
furtherance of the conspiracy in New Jersey.14 In this
context, the request for a jury instruction on venue was too
little and too late.

III. Suppression of Evidence

Appellants argue that the District Court erred in denying
their motions to suppress evidence seized in violation of
their Fourth Amendment right against unreasonable
_________________________________________________________________

14. The District Court, in its denial of the defense motion for a new
trial,
stated that "the evidence . . . as to the presence of venue in the
District
of New Jersey is not so overwhelming that the jury couldn't have decided
otherwise had it been before it." Given the absence of a dispute of
material fact, "overwhelming" evidence was not necessary for the District
Court to conclude that the Government's burden was met. The testimony
of co-conspirators in this case was sufficient to support venue in New
Jersey.

                               24
searches and seizures. According to Appellants, neither the
exigent circumstances exception to the warrant
requirement nor the independent source doctrine, both
relied upon by the District Court in its denial, apply here.
This Court reviews the District Court's denial of a motion to
suppress for clear error as to the underlying factual
findings and exercises plenary review of the District Court's
application of the law to those facts. United States v.
Riddick, 

, 509 (3d Cir. 1998).

As a threshold matter, Appellants have demonstrated no
privacy interest in Del Rosario's apartment that would
permit them to claim the protection guaranteed by the
Fourth Amendment as to the items seized from it. Thus
they lack the capacity to move to suppress the evidence
seized. Nor does their claim that the seizure of items from
them personally violates the Fourth Amendment survive
either a harmless error analysis or the independent source
doctrine. We conclude that probable cause to secure a
search warrant existed prior to the officers' entry of Del
Rosario's apartment15 and that the independent source
doctrine applies to the items seized. Therefore, we affirm
the District Court's ruling on the suppression motion.

A. Capacity of Appellants to Claim the Protection of
       the Fourth Amendment

The Fourth Amendment guarantees

       the right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable
       searches and seizures . . . and that no warrants shall
       issue, but upon probable cause, supported by oath or
       affirmation, and particularly describing the place to be
       searched and the persons or things to be seized.

U.S. Const. amend. IV. In its denial of Appellants' motion to
suppress, the District Court determined that the issue of
_________________________________________________________________

15. Although we have doubts about the District Court's finding that
exigent circumstances were present to justify the arresting officers'
decision to enter and secure the premises, we need not address this
issue in view of our conclusions on the lack of a privacy interest and the
independent source doctrine.

                                  25
their "standing" was moot in light of the Court's decision on
the merits that no Fourth Amendment violation occurred.

We may affirm the rulings of the District Court for any
proper reason that appears on the record even where not
relied on by it. United States v. Miller, 

, 248
(3d Cir. 2000). We address the capacity issue here because
we think it falls squarely within the Supreme Court's
holding in Minnesota v. Carter, which declared that the
" `capacity to claim the protection of the Fourth Amendment
depends . . . upon whether the person who claims the
protection of the Amendment has a legitimate expectation
of privacy in the invaded place.' " 

, 88 (1998)
(citing Rakas v. Illinois, 

, 143 (1978)). Under
this rule, persons in another's apartment for a short time
for the business purpose of packaging cocaine had no
legitimate expectation of privacy in that apartment. Thus
any search which may have occurred did not violate their
Fourth Amendment rights. 

Although overnight
guests who are legitimately in a third-party's apartment
may have a reasonable expectation of privacy, Appellants
do not qualify. See Minnesota v. Olsen, 

, 98-99
(1990). Perez, a resident of Virginia, was booked at the
Queens Motor Inn. She actually stayed at Batoon's home
the night before the arrest. She did not stay overnight at
Del Rosario's apartment. Nor was there any evidence that
either Alcantera or Batoon resided at or were staying
overnight at Del Rosario's apartment.

Appellants cite to United States v. Erwin, in which the
Tenth Circuit ruled, in the context of an automobile stop
and search, that "[e]ven if defendant lacks standing16 to
_________________________________________________________________

16. In Rakas the Supreme Court opined that "the determination of
whether the proponent of a motion to suppress is entitled to contest the
legality of a search and seizure . . . belongs more properly under the
heading of substantive Fourth Amendment doctrine than under the
heading of standing. . . 

. To some this may seem a
distinction without a difference. See United States v. Felton, 

, 259 n.1 (3d Cir. 1985) ("The question necessarily arises whether it
serves any useful analytical purpose to consider this principle a matter
of standing, distinct from the merits of a defendant's Fourth Amendment
claim. We can think of no decided cases of this Court that would have

                               26
challenge the search of the car, if the initial stop was
illegal, the seized contraband is subject to exclusion under
the `fruit of the poison tree' doctrine." 

, 269 &
n.2 (10th Cir. 1989) (citing Wong Sun v. United States, 

, 484 (1963)). The rationale of Erwin , however,
does not apply in this context. Instead, we find the
reasoning of Justice Kennedy in his concurrence in Carter
to be on point. He posed the following hypothetical where
the entry was illegal: "If respondents here had been visiting
twenty homes, each for a minute or two, to drop off a bag
of cocaine and were apprehended by a policeman
wrongfully present in the nineteenth home, . . . we would
have said that Rakas compels the rejection of any privacy
interest respondents might 

(Kennedy, J., concurring); 

.

In sum, we find no evidence that the Appellants were at
Del Rosario's apartment for any purpose other than to
engage in drug-related activities. They therefore have no
reasonable expectation of privacy in Del Rosario's
apartment to challenge the items seized therefrom under
the Fourth Amendment and their claims are rejected on
that basis. See United States v. Vega, 

, 797
(5th Cir. 2000) (rejecting appellant's challenge of a search
where he presented no evidence to meet his burden of
showing that he had a legitimate expectation of privacy in
the residence searched).

Alcantera and Batoon also argue, and the Government
concedes, that they had a reasonable expectation of privacy
with respect to the items seized from them personally. From
Alcantera the Government seized a cell phone with battery
and a pager; from Batoon a small amount of
methamphetamine consistent with personal use and a
pager. However, in light of all of the other evidence properly
_________________________________________________________________

come out differently. . . ."); see also United States v. Baker, 

(3d Cir. 2000) (using "standing" interchangeably with "reasonable
expectation of privacy" in discussing the right to challenge the search of
a car). Nonetheless, "the better analysis forthrightly focuses on the
extent of a particular defendant's rights under the Fourth Amendment
rather than on any theoretically separate, but invariably intertwined
concept of standing." 

n.1.

                               27
seized from Del Rosario's apartment pursuant to the search
warrant (see discussion below), any alleged error in the
admission of this evidence is rendered harmless. See United
States v. Price, 

, 720 (3d Cir. 1994) (finding
harmless the erroneous denial of a motion to suppress
fourteen kilograms of cocaine in light of the testimony of
several witnesses that appellant delivered cocaine for
distribution, wore a ring associated with a drug-trafficking
organization, and worked with members of that
organization).

B. Independent Source Doctrine and Probable Cause

The District Court denied Appellants' motion to suppress
evidence based in part on the long-standing independent
source doctrine. That doctrine serves as an exception to the
exclusionary rule and permits the introduction of illegally
obtained evidence where the police had an independent
source for the discovery of the evidence.

       The essence of a provision forbidding the acquisition of
       evidence in a certain way is that not merely evidence so
       acquired shall not be used before the Court but that it
       shall not be used at all. Of course this does not mean
       that the facts thus obtained become sacred and
       inaccessible. If knowledge of them is gained from an
       independent source they may be proved like any
       others.

Silverthorne Lumber Co. v. United States, 

, 392
(1920); see also Segura v. United States, 

, 805
(1984) (noting that evidence is not to be excluded if police
had an independent source); Wong Sun v. United States,

(1963) (same). The basis for the rule is the
well-established principle that "evidence is not to be
excluded if the connection between the illegal police
conduct and the discovery and seizure of the evidence is `so
attenuated as to dissipate the taint'." 

(citing Nardone v. United States, 

, 341
(1939)).

The facts and legal issues presented in this case are
similar to those in Segura. There, New York Drug
Enforcement Task Force agents began surveillance of
Segura based on information that he and another petitioner

                                28
were "probably" trafficking in cocaine from their 

. After observing the delivery of a bulky
package suspected to be cocaine as per an informant's tip,
the officers stopped the recipient couple, found them to
possess cocaine, and placed them under arrest. From this
couple, the officers learned that they had purchased
cocaine from Segura. Given that Segura was to call the
couple at approximately 10:00 p.m. to learn if they had sold
the cocaine, and that because of the lateness of the hour a
search warrant could not be obtained, the officers decided
to "secure" Segura's apartment to prevent destruction of the
evidence. The officers knocked and entered without the
consent of the woman who opened the door. They
conducted a limited security check while others went to
obtain a search warrant. After nineteen hours, the warrant
was issued and the search performed. In concluding that
probable cause existed, although not ruling on the lower
courts' conclusion that the entry and initial search were not
justified by exigent circumstances, the Supreme Court held
that

       the evidence discovered during the subsequent search
       of the apartment the following day pursuant to the
       valid search warrant issued wholly on information
       known to the officers before the entry into the
       apartment need not have been suppressed as `fruit' of
       the illegal entry because the warrant and the
       information on which it was based were unrelated to
       the entry and therefore constituted an independent
       source for the evidence . . . 

.

The Supreme Court did not answer directly the question
presented by this case -- whether probable cause exists if
it was not clearly established that drugs were in the
apartment. But it did conclude that probable cause existed
under the facts of that case, and noted that "[t]he illegality
of the initial entry . . . has no bearing on . . . whether the
evidence first discovered during the search of the
apartment pursuant to a valid warrant issued the day after
the entry should have been suppressed as `fruit' of the
illegal entry." 

But see United States v. Dice, 

(6th Cir. 2000) (holding that violation of knock-

                               29
and-announce rule during execution of valid search
warrant warranted suppression of evidence seized in search
following violation).

Our case law follows the reasoning in Segura. In United
States v. Herrold, we found that the affidavit for the warrant
in question contained sufficient probable cause to justify
the search apart from information the officers learned in
the initial entry. 

(3d. Cir. 1992).

       In sum, the district court should have asked two
       questions: (1) whether a neutral justice would have
       issued the search warrant even if not presented with
       information that had been obtained during an unlawful
       search and (2) whether the first search prompted the
       officers to obtain the search warrant. If the answers to
       these questions are yes and no respectively, which they
       are in this case, then the evidence seized during the
       warranted search, even if already discovered in the
       original entry, is admissible. Otherwise the police
       would indeed be in a worse position than they would
       have been in had they not violated Herrold's Fourth
       Amendment rights.

Our ruling in Herrold harmonized the tainted
warrant and independent source doctrines. See 

to the fear that police will have an incentive to
avoid the warrant requirement, we noted that the
independent source doctrine

       by its very nature . . . is only applicable where the
       police have in fact obtained a warrant. In addition, it
       will not give the police incentive to search first without
       a warrant, because any information discovered in an
       unlawful search is useless to the police in a
       subsequent warrant application. Moreover, our result
       is dependent upon our conclusion that the police
       would have obtained the warrant even if Hill had not
       made his original entry.

applies with equal force to the case
before us.

Thus we turn to whether the tainted information from the
illegal entry improperly influenced the issuing of the

                                30
warrant. The Court in United States v. Restrepo , 

(5th Cir. 1992), was presented with a warrantless
security sweep of a residence and the subsequent search of
that same residence pursuant to a warrant. It held that "in
all such cases the district court should consider whether
the warrant affidavit, once purged of tainted facts and
conclusions, contains sufficient evidence to constitute
probable cause for issuance of the warrant." 

Separate and apart from this determination, the court must
also determine "whether information gained through the
illegal search influenced or motivated the officers' decision
to procure a warrant." 

This latter point resulted
in a remand to the district court.

In our case, Officer Koehler testified during the
suppression hearing that he had enough probable cause
based on the information provided from CI-1 and Zoletta to
convince an Assistant District Attorney to issue him the
search warrant even if he had never gone into the
apartment. But during his testimony Koehler acknowledged
that the affidavit in support of the search warrant included
things seen in the apartment after an entry not justified by
exigent circumstances (and therefore tainted).

       Q: You included in that affidavit, did you not, the
       things you or others had seen in that apartment?

       A: Yes.

       Q: You included the methamphetamine that was in
       plain view in the living room?

       A: Right.

       Q: Did you include those things because you felt they
       were substantial information towards getting the
       search warrant?

       A: They would just be more helpful, more information.

We nonetheless conclude that probable cause for the
search warrant existed before the officers decided to enter
Del Rosario's apartment. See Illinois v. Gates , 

,
238 (1983). Similar to the situation in Segura , the officers
in this case had the apartment under surveillance based on
tips from confidential informants that Del Rosario was

                               31
trafficking methamphetamine from his apartment. The
officers were also informed that a woman named "Linette"
would be arriving at J.F.K. Airport from the Philippines
with bulky packages on February 24, 1999. This
information and Linette's description were corroborated by
customs agents. While surveilling Del Rosario's apartment
the next day, officers observed a stream of cars stop outside
the apartment building, remain for a few minutes, then
leave. In similar fashion, Zoletta and Abaia then pulled up
and parked outside the apartment building. After observing
Zoletta leave the building with a suspicious package and
drive away with Abaia, the officers trailed and then stopped
their car. The package contained approximately 200 grams
of methamphetamine. Zoletta independently confirmed that
he dealt drugs for Del Rosario for two years in New York
and New Jersey, that he had received these drugs from Del
Rosario, and that he was to deliver them on Del Rosario's
behalf. Zoletta also confirmed the apartment number and
that additional people remained in the apartment. This
information was sufficient to establish probable cause to
seek a search warrant for the apartment irrespective and
independent of those items discovered within the apartment
in connection with the tainted police entry. With this
independent support, a valid search warrant issued, the
fruit of that search was not tainted, and thus there was no
violation of Appellants' Fourth Amendment rights.

IV. Expert Testimony

Alcantera claims that the District Court overstepped
Federal Rule of Evidence 702 by permitting the
Government's expert witness, Ronald Dixon ("Dixon"), to
testify about facts purported to be within the common
knowledge of the jurors. Alcantera did not object to the
District Court's finding that Dixon was qualified to testify
as an expert in the area of drug-trafficking practices and
techniques. Instead, he objected on the ground that there
was no need for the testimony and that it was unfairly
prejudicial. We review for abuse of discretion the District
Court's ruling as to the qualifications of Dixon and the
reliability of his testimony. In re Paoli R.R. Yard P.C.B.
Litig., 

, 749 (3d Cir. 1993). We also review for

                               32
abuse of discretion the Court's refusal to exclude the
evidence under Federal Rule of Evidence 403 because any
unfairly prejudicial effect did not substantially outweigh its
probative value. United States v. Mathis, 

,
326-27 (3d Cir. 2001).

In a landmark ruling that led in December 2000 to the
amendment of Rule 702 of the Federal Rules of Evidence,
the Supreme Court in Daubert v. Merrell Dow
Pharamaceuticals, Inc., 

(1993), established the
trial court as a gatekeeper to exclude unreliable expert
testimony. Prior to December 2000, Rule 702 read:

       If scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence
       or to determine a fact in issue, a witness qualified as
       an expert by knowledge, skill, experience, training, or
       education, may testify thereto in the form of an opinion
       or otherwise.

Fed. R. Evid. 702 (2000). The Rule as amended reads:

       If scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence
       or to determine a fact in issue, a witness qualified as
       an expert by knowledge, skill, experience, training, or
       education, may testify thereto in the form of an opinion
       or otherwise, if (1) the testimony is based upon
       sufficient facts or data, (2) the testimony is the product
       of reliable principles and methods, and (3) the witness
       has applied the principles and methods reliably to the
       facts of the case.

Fed. R. Evid. 702 (2001).

In both versions, the purpose of expert testimony is to
assist the trier of facts to understand, evaluate, and decide
complex evidential material. United States v. R. J. Reynolds
Tobacco Co., 

(D.N.J. 1976)."The basic
approach to opinions, lay and expert, in these rules is to
admit them when helpful to the trier of fact." Fed. R. Evid.
704, advisory committee's note.

Although this Court has not specifically declared the
modus operandi of drug trafficking as an appropriate or
reliable field for expert opinion, several courts of appeal

                               33
have consistently admitted such testimony. See United
States v. Gil, 

, 1421-22 (9th Cir. 1995) (ruling
expert testimony regarding how drug-traffickers employ
telephone pagers and public telephones to avoid detection
by police was properly admitted); United States v. Tapia-
Ortiz, 

, 741 (2d Cir. 1994) (affirming the
admission of expert testimony of how drug traffickers
employed telephone pagers "in order to avoid detection");
see also United States v. Gastiaburo, 

, 589 (4th
Cir. 1994) (ruling that expert testimony about "tools of the
trade" of drug traffickers, including "beepers," was properly
admitted); United States v. Solis, 

, 549-51 (7th
Cir. 1991) (concluding that expert testimony that the use of
"beepers' by drug traffickers permit them to be anonymous
and mobile was properly admitted). We join those courts.

Dixon, the Lieutenant of Detectives for the Middlesex
County, New Jersey Prosecutor's Office, and a thirty-two
year law enforcement veteran, testified that cellular
telephones can be used by drug traffickers to frustrate
police investigations. He explained that police who intercept
a cellular call will often be ignorant of the location of the
caller. The police are unable to engage in simultaneous
wire-tapping and surveillance of the caller, a useful
investigative technique that often leads police to the
location of a drug delivery. Dixon also testified that drug
traffickers employ telephone pagers to transmit numeric
coded messages. He explained that even if police are able to
intercept the coded message, they will likely be unable to
decode it.

We conclude that Dixon's testimony meets the "helpful to
the trier of fact" threshold established in Rule 702. It is not
common knowledge among lay persons serving as jurors
that police are unable simultaneously to wire-tap cellular
phone calls and keep under surveillance those who make
them, or that numeric pagers are used by drug traffickers
to transmit coded messages. Since this testimony was
helpful and relevant, we likewise conclude that the District
Court acted within its discretion in refusing to exclude it
under Rule 403. Therefore, the District Court in this case
properly exercised its discretion to admit Dixon's testimony
with respect to drug traffickers' use of cell phones and
pagers to evade location by police investigators.

                               34
V. Sufficiency of Evidence of a Single Conspiracy

Appellants Alcantera and Batoon contend that the
evidence was insufficient to sustain their convictions of
conspiring to distribute methamphetamine. First, they
argue that the proofs at trial do not support the jury's
verdict as to each of them. Second, they contend that the
Government failed to prove that they were members of a
single conspiracy as charged in the indictment. We review
the sufficiency of the evidence in the light most favorable to
the Government, and credit all reasonable inferences that
support the verdicts. See Glasser v. United States, 

, 80 (1942); 

. The verdict will be
sustained if "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
United States v. Voigt, 

, 1080 (3d Cir. 1996).

The essential elements of conspiracy are "(1) a shared
`unity of purpose,' (2) an intent to achieve a common goal,
and (3) an agreement to work together toward the goal."
United States v. Mastrangelo, 

, 292 (3d Cir.
1999) (citing United States v. Wexler, 

, 90-91
(3d Cir. 1988)). "This proof incorporates a demonstration
that a defendant has `knowledge of the illegal objective
contemplated by the conspiracy'." 

838
F.2d at 91). "The elements of a conspiracy may be proven
entirely by circumstantial evidence, but each element of the
offense must be proven beyond a reasonable doubt."

; see also United States v. Kapp, 

, 1010 (3d Cir.), cert. denied, 

(1986); United States v. Samuels, 

, 573 (3d
Cir. 1984).

A. Sufficiency of the Evidence of Conspiracy

Alcantera and Batoon argue that the evidence does not
support their role as co-conspirators. They contend that
neither had the requisite knowledge of the illegal objective
of the scheme to distribute methamphetamine such that
they could form an intent or agreement to join the
conspiracy. Moreover, they posit that uncorroborated co-
conspirator testimony is insufficient to support a
conspiracy conviction. Instead, Batoon insists that he was
merely in a buyer-seller relationship with Del Rosario that

                               35
did not rise to the level of a co-conspirator, while Alcantera
claims that he was at Del Rosario's apartment to receive a
gift for his newborn son and had no knowledge of the
presence of illegal drugs.

The Government need not prove that each defendant
knew all of the conspiracy's details, goals, or other
participants. See United States v. Theodoropoulos, 

, 593 (3d Cir. 1989), overruled on other grounds by
United States v. Price, 

, 727 (3d Cir. 1994).
However, the Government must proffer sufficient evidence
from which a jury could conclude that the drug transaction
in which Appellants were involved was "a step in achieving
the conspiracy's common goal of distributing cocaine for
profit." 

. As Appellants
point out, "a simple buyer-seller relationship, without any
prior or contemporaneous understanding beyond the sales
agreement itself, is insufficient to establish that the buyer
was a member of the seller's conspiracy." United States v.
Gibbs, 

, 198 (3d Cir. 1999) (citing United
States v. McGlory, 

, 324-25 (3d Cir. 1992),
cert. denied, 

(1993)); see also United States v.
Kozinski, 

, 808 (7th Cir. 1994). However, in
Price and Theodoropoulos we reasoned that "even an
occasional supplier (and by implication an occasional buyer
for redistribution) can be shown to be a member of the
conspiracy by evidence, direct or inferential, of knowledge
that she or he was part of a larger operation." 

; 

.

Among the factors the Court considers to determine a
defendant's knowledge of the conspiracy are: (1) the length
of affiliation between the defendant and the conspiracy; (2)
whether there is an established method of payment; (3) the
extent to which transactions are standardized; and (4)
whether there is a demonstrated level of mutual trust.

(citing United States v. Hach, 

, 943 (7th Cir. 1998), cert. denied, 

(1999)).

       While these factors are not necessarily dispositive of
       the issue, their presence suggests that a defendant has
       full knowledge of, if not a stake in, a conspiracy: when
       a defendant drug buyer has repeated, familiar dealings

                               36
       with members of a conspiracy, that buyer probably
       comprehends fully the nature of the group with whom
       he is dealing, is more likely to depend heavily on the
       conspiracy as the sole source of his drugs, and is more
       likely to perform drug-related acts for conspiracy
       members in an effort to maintain his connection to
       them.

.

Alcantera and Batoon cite to the Tenth Circuit case of
United States v. Evans, 

(1992), to support
their argument that "[m]ere knowledge of an illegal activity,
even in conjunction with participation in a small part of the
conspiracy, does not by itself establish that a person has
joined in the grand conspiracy." 

What is needed
is "a general awareness of both the scope and the objective
of the enterprise to be regarded as a co-conspirator." 

to this argument is that seven of the
eight indicted defendants, including Alcantera and Batoon,
were present in Del Rosario's apartment on February 25,
1999, when the N.Y.P.D. officers entered the apartment,
with nearly 100 grams of crystal methamphetamine in plain
view. Both were present in the apartment while the
methamphetamine was distributed to other persons to be
delivered or sold, and both arguably were providing
"security" to Del Rosario. Alcantera knew of the plan to
have Perez smuggle methamphetamine into the United
States after he met with Daluro, and Batoon met with Perez
the night she returned from her trip to the Philippines.

Contrary to the claim that he was merely in a buyer-
seller arrangement with Del Rosario, Alcantera admitted to
Uy that he was one of Del Rosario's methamphetamine
distributors. Prior to the arrest, Alcantera obtained twenty
grams of methamphetamine from Daluro in New Jersey
expressly for delivery to Del Rosario. Moreover, after
Alcantera testified that he never called Del Rosario on the
telephone, the Government confronted him with telephone
records that established that he made and received
numerous phone calls to and from Del Rosario around the
time that the shipment of methamphetamine was due in
from the Philippines. Like Alcantera, Batoon received

                                37
distribution amounts of methamphetamine from Del
Rosario several times, once on credit. This evidence is
sufficient to prove their general awareness of the scope and
objective of the conspiracy.

Alcantera and Batoon also argue that the uncorroborated
testimony of their alleged co-conspirators Almiranez,
Daluro, Zoletta and Uy is not sufficient to sustain their
convictions, citing to United States v. Sturman , 

(7th Cir. 1995). However, the Sturman Court left
"open the question of whether co-conspirator testimony
alone can support a conspiracy conviction." 

(citing United States v. Martinez de Ortiz, 

, 632
(7th Cir. 1990) (en banc), cert. denied , 

(1991)). The Seventh Circuit followed Sturman with its
opinion in United States v. Henderson, 

(7th
Cir. 1995), wherein it held that "[w]e will uphold a
conviction based solely on the uncorroborated testimony of
an accomplice unless his testimony is incredible as a
matter of law." 

In the context of accomplice testimony, we rejected in
United States v. DeLarosa, 

(3d Cir. 1971),
the very argument Alcantera and Batoon proffer."We follow
the Supreme Court in holding that uncorroborated
accomplice testimony may constitutionally provide the
exclusive basis for a criminal conviction." 

(citing
Caminetti v. United States, 

(1917)). See also
Jacobs v. Redman, 

, 1255 (3d Cir. 1980).
This is particularly the case where the defense has ample
opportunity to cross-examine the Government's witnesses,
as Alcantera and Batoon had. See United States v.
Enriquez, 

, 1074 (8th Cir. 2000) ("[Defense]
counsel cross-examined each of the co-conspirators with
whom the government had made plea agreements . . . and
attempted to expose their potential for bias and self-
interest. Furthermore, the jury was specifically instructed
as to its role in weighing witnesses' testimony and
credibility. The jury's decision to credit the testimony of
those witnesses was within its province, and we will uphold
the conviction if substantial evidence supports it.").

Viewing the evidence in the light most favorable to the
Government, we conclude that a reasonable jury could have

                               38
found Alcantera and Batoon guilty of conspiracy to possess
with intent to distribute methamphetamine. Alcantera's and
Batoon's presence at the ringleader's apartment when the
drug shipment was being doled out, their awareness of and
involvement with Del Rosario and Perez around the time of
the delivery, as well as repeated dealings with Del Rosario
prior to the arrest, are sufficient facts from which a
reasonable jury can infer a general awareness of the scope
of the illegal objective. That some of this evidence was
provided by alleged co-conspirator testimony does not
render the entire evidence insufficient to support the
convictions of Alcantera and Batoon. The Government's
evidence addresses each of the factors discussed in Gibbs,
establishing Alcantera's and Batoon's knowledge of the
broader conspiracy and contradicting a mere buyer-seller
arrangement.17

B. Variance between single conspiracy as charged and
       the proof at trial

Alcantera and Batoon also claim that the single
conspiracy charged in the indictment impermissibly varied
from the evidence at trial which proved, at most, that two
separate conspiracies existed. "A defendant alleging a
variance between a single conspiracy charged in an
indictment and the proof presented at trial must
demonstrate, first, that there was such a variance and,
second, that the variance prejudiced one of his substantial
rights." United States v. Quintero, 

, 1337 (3d
Cir. 1994) (citing United States v. Kelly, 

, 258
(3d Cir. 1989)). "Where a single conspiracy is alleged in the
_________________________________________________________________

17. The concern of the Tenth Circuit in Evans , echoed by Chief Judge
Becker in footnote 3 in Gibbs -- that a small time drug dealer could be
held responsible for all of the drugs originated by the cartel for
sentencing purposes -- is not implicated in this case. We conclude that
Alcantera and Batoon had sufficient knowledge of and a stake in the
larger conspiracy to justify a jury finding them to be co-conspirators.
See

n.3; 

. Moreover, we note
that the District Court in this case instructed the jury that "[a] buyer-
seller relationship alone is insufficient to prove a conspiracy to
distribute
or a conspiracy to possess with intent to distribute an illegal drug. This
is the case even when the buyer intends to resell the purchased
narcotics."

                               39
indictment, there is a variance if the evidence at trial proves
only the existence of multiple conspiracies." 

(citing United States v. Smith, 

, 200 (3d
Cir.), cert. denied, 

(1986)). The issue of
whether a single conspiracy or multiple conspiracies exist is
a fact question to be decided by a jury. United States v.
Curran, 

, 572 (3d Cir. 1994) (citing 

). We will sustain the jury's verdict if there is
substantial evidence, viewed in the light most favorable to
the Government, to support a finding of a single conspiracy.

.

To provide notice of the charges against a defendant and
to protect against double jeopardy, the indictment must
adequately set forth the crime alleged. See Gaither v. United
States, 

, 1071 (D.C. Cir. 1969). Where
evidence at trial proves facts different than those alleged in
the indictment, an impermissible variance may exist. 

. For example, when a single conspiracy is
charged in the indictment and the evidence at trial proves
only the existence of multiple, unrelated conspiracies, there
is a variance. See Kotteakos v. United States , 

(1946); 

; United States v. Boyd, 

, 123 (3d Cir. 1978).

Multiple conspiracies are "separate networks operating
independently of each other." United States v. Barr, 

, 648 (3d Cir. 1992). "However, a finding of a
master conspiracy with sub-schemes does not constitute a
finding of multiple, unrelated conspiracies and, therefore,
would not create an impermissible variance." 

. Thus, the relatedness of the activities of the
co-conspirators in support of the overall illegal scheme can
defeat a claim of multiple conspiracies.

Variances "are examined on a case-by-case basis and
constitute reversible error only if the defendant was
prejudiced." 

(citing United States v.
Castro, 

, 1121 (3d Cir. 1985)); United States
v. Somers, 

, 743 (3d Cir.), cert. denied, 

(1974)). This "variance doctrine" protects a
defendant from being tried "en masse for the
conglomeration of distinct and separate offenses committed
by others." United States v. Salmon, 

, 1116

                               40
(3d Cir. 1991), cert. denied, 

(1992) (quoting

). "The doctrine is intended to prevent
a situation in which the jury might `be unable to separate
offenders and offenses and easily could ... transfer[ ] the
guilt from one alleged co-schemer to another.' " 

(quoting United States v. Camiel, 

,
38 (3d Cir. 1982)).

Several courts have focused on the interdependency of
the sub-schemes in support of the overall conspiracy. See,
e.g., 

("the defendant's actions must
`facilitate the endeavors of other alleged co-conspirators or
facilitate the venture as a whole' ") (citing United States v.
Horn, 

, 743 (10th Cir. 1991)); United States v.
Sophie, 

, 1080 (7th Cir.), cert. denied, 

(1990); United States v. Kenny, 

,
1217 (3d Cir.), cert. denied, 

(1972).
Interdependency, however, is merely "evidence of an
agreement." United States v. Taylor, 

, 1352
(2d Cir.), cert. denied, 

(1977). It is not an
element of the offense. United States v. DiPasquale, 

, 1291 (3d Cir. 1984) (citing United States v.
Shoup, 

, 957 n.12 (3d Cir. 1979)).

In support of their argument, Alcantera and Batoon cite
to a snippet from the uncorroborated co-conspirator
testimony of Almiranez.

       Q.: (Direct examination of Almiranez by Government)
       When individuals came over to [Del Rosario's]
       apartment, what happened?

       A.: Oh, they get their drugs too. Everybody that went
       there, they get their own drugs.

       * * * *

       Q.: Were there any discussions in [Del Rosario's]
       apartment between you and the other individuals in
       the apartment regarding the distribution of crystal
       meth?

       A.: No, we don't -- we don't discuss those distribution
       . . . we don't discuss distribution, none.

       Q.: Why not, why don't you discuss it?

                               41
       A.: Because they distribute in New York. I do in
       Jersey. It's different areas.

This testimony, Alcantera and Batoon contend, disproves
their knowledge of and interdependency with the"New
Jersey" conspiracy. Consequently, they argue, the
Government's allegation and the jury's finding that the two
were part of single conspiracy must fail.

We disagree. "To establish a single conspiracy, the
prosecutor need not prove that each defendant knew all the
details, goals or other participants." United States v.
Padilla, 

(3d Cir. 1992). "The prosecution
must, however, demonstrate that a defendant, charging
variance, knew that he was part of a larger drug operation."

(citing Padilla , 982 F.2d at 114).
As we noted above in Part V.A., the Government met this
burden of proof.

Moreover, we find that there is sufficient evidence from
which a reasonable jury can find interdependency among
the co-conspirators. The Government demonstrated that
methamphetamine is difficult to prepare, find, and
purchase on the streets. Alcantera and Batoon depended on
a scheme involving Del Rosario, Perez and the shipment
from the Philippines to possess and distribute the illegal
drug. In turn, Del Rosario depended on the two to
distribute the methamphetamine once it came in. In
addition, because Alcantera and Batoon stayed with Del
Rosario throughout the morning and afternoon of the
arrest, the jury could have logically concluded that the two
provided security to Del Rosario as the drugs were
distributed. See United States v. Reyes, 

, 312-
13 (3d Cir. 1991) (finding a single conspiracy to be proven
when there is "evidence of a large general scheme, and of
aid given by some conspirators to others in aid of that
scheme") (citing 

).

The concern with a "spillover of evidence" is unfounded in
this case. The Government presented evidence that directly
implicated both Alcantera and Batoon in the conspiracy.
The majority of the remaining evidence, including the
testimony of Zoletta about his own and Perez's role in the
conspiracy, was relevant to both Alcantera and Batoon

                                42
regardless whether there was a single or multiple
conspiracies.

Moreover, the District Court's jury instructions in this
case dispel the concerns of prejudice to Alcantera and
Batoon. With respect to the finding of a single conspiracy,
the Court instructed the jury to acquit if the evidence
established "separate or independent conspiracies[that]
would be at variance with that charged," and that"proof of
a different conspiracy, that is, one without that specific
objective [alleged in the indictment], would not be proof of
the conspiracy charged in the indictment and would require
a verdict of not guilty." With respect to individualized
findings of innocence or guilt, the District Court instructed
the jury to give "separate consideration to and render a
separate verdict as to each defendant based solely on the
evidence pertaining to that defendant," and to"exercise
great care to evaluate the evidence or lack of evidence
against each defendant individually . . . without regard as
to what your decision as to any other defendant might be."

In sum, we find that Alcantera and Batoon have failed to
demonstrate (1) a variance between the single conspiracy as
charged in the indictment and the evidence offered at trial
to prove that conspiracy and, (2) regardless of the alleged
variance, any prejudice to them as a result of the
Government's proof at trial.

VI. Refusal to Immunize Del Rosario and Brady
Violation

Appellants Perez and Batoon claim that the District Court
erroneously refused to immunize Del Rosario so that he
could testify as a defense witness at trial. Based on the
same set of facts, Perez and Batoon also claim that the
Government failed to reveal exculpatory evidence to the
defense with respect to Del Rosario's statements to
investigators, thereby warranting a new trial. We review the
District Court's refusal to immunize Del Rosario for abuse
of discretion. United States v. Herman, 

,
1213-14 (3d Cir. 1978). The District Court's factual findings
regarding the likely effect of undisclosed information are
reviewed only for clear error. United States v. Pelullo, 

, 135 (3d Cir. 1999).

                               43
Immediately following his arrest and after waiving his
Miranda rights, Del Rosario told investigators that Perez
had smuggled multiple kilograms of methamphetamine into
the United States from the Philippines and delivered them
to Del Rosario. Months later, Del Rosario changed his story
and told investigators that Zoletta, not Perez, had delivered
the drugs to Del Rosario. Perez sought to present Del
Rosario as a defense witness and question him about the
second statement. The District Court had Del Rosario and
his attorney appear before it to determine if he would
testify. Del Rosario, outside the presence of the jury,
asserted his Fifth Amendment privilege against self-
incrimination and refused to answer any questions. Perez
then asked the District Court to confer immunity on Del
Rosario so that he could be compelled to testify as a
defense witness, in the hope that he would testify in
accordance with his second statement and exculpate Perez.
The Government opposed the request.

We have prescribed a five-factor analysis when assessing
a request to grant judicial use immunity18 to a witness who
refuses to testify: (1) the immunity is properly sought in the
District Court; (2) the witness is available to testify; (3) the
proffered testimony is clearly exculpatory; (4) the proffered
testimony is essential to the defense; and (5) there is no
strong governmental interest against the immunity. See
United States v. Cohen, 

, 802 (3d Cir. 1999);
Government of Virgin Islands v. Smith, 

(3d
Cir. 1980). The District Court concluded that, because any
exculpatory testimony that Del Rosario might offer on
behalf of Perez would be severely impeached by his prior
inculpatory statement against her, Perez could not
establish that the proffered testimony was "clearly
exculpatory" or "essential to her defense."

A similar analysis applies to the alleged Brady violation.
Under Brady v. Maryland, 

(1963), the
_________________________________________________________________

18. Use immunity, conferred by the judge on a witness who refuses to
testify, prohibits a witness' compelled testimony and its fruits from
being
used in any manner in connection with the criminal prosecution of the
witness except a prosecution for perjury, giving a false statement, or
otherwise failing to comply with the order. See 18 U.S.C. SS 6001-6005.

                               44
suppression by the prosecution of evidence favorable to an
accused warrants a new trial where "the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 

Evidence is material if there is a reasonable probability
that, had it been disclosed, the result of the proceeding
would have been different. Stickler v. Greene , 

,
281 (1999); see also Holman v. Wilson, 

, 181
(3d Cir. 1998) (evidence is material if it "could reasonably
be taken to put the whole case in such a different light as
to undermine confidence in the verdict"); United States v.
Perdomo, 

, 972 (3d Cir. 1991) (evidence is
favorable if "it may make a difference between conviction
and acquittal").

Perez and Batoon argued below that the prosecution
violated Brady by failing to disclose a statement by Del
Rosario that Zoletta, not Perez, had delivered the drugs to
Del Rosario. The District Court concluded that the
Government had violated a duty under Brady to disclose
the identity of Zoletta as a potential alternative source for
the drugs to the defense for two reasons: first, because the
evidence was "substantially exculpatory," and second,
because it was untimely offered after the immunity hearing.
However, the District Court concluded that a new trial was
not warranted because there was no reasonable probability
that the result of the proceeding would have been different
if Del Rosario's statement had been disclosed.19 In other
words, the allegedly exculpatory evidence was neither
"essential to the defense" under the immunity test nor
"material" under the Brady test.

On appeal, Perez and Batoon offer a litany of reasons
why the District Court should have granted a new trial.
First, Perez argues that the suppressed evidence was
_________________________________________________________________

19. Here, the District Court slightly misstated the law because "strictly
speaking, there is never a real `Brady violation' unless the nondisclosure
was so serious that there is a reasonable probability that the suppressed
evidence would have produced a different verdict." 

. The Government does not violate Brady unless the undisclosed
evidence is found to be material. Because the District Court ruled that
the evidence was not material to Perez's defense, no Brady violation
occurred.

                               45
material because the defense was prevented from using Del
Rosario's statement to contradict the prosecution's theory
of the case. She contends that Del Rosario's statement that
Zoletta had delivered drugs to his apartment on the night
before the raid would have been credible because (1) it was
corroborated by Zoletta's own admission before the jury,
and (2) he had nothing to gain by contradicting the
prosecution's theory of the case at a time when he had
hopes for entering into a cooperating plea agreement.
However, the District Court addressed this argument and
concluded that Del Rosario's testimony, even if credible,
would not have made a difference in the trial because, while
it may come in to impeach Zoletta, it could not come in for
substantive consideration by the jury because it was
inadmissible hearsay -- an out-of-court statement by
Zoletta offered by Perez to prove the truth of the matter
asserted.

This position is supported in cases cited by the
Government. See Bradley v. Nagle, 

, 567 (11th
Cir. 2000) (finding undisclosed evidence was not material
where "[e]ach item of evidence was in fact inadmissible at
trial" and the defendant "presents only speculation that he
would have uncovered any admissible evidence from these
three hearsay leads"); United States v. Derrick, 

, 818 (4th Cir. 1998) (concluding that undisclosed
statements by legislators to FBI agents were not material in
prosecution of legislators for campaign finance violations in
part because they were inadmissible hearsay); see also
Wood v. Bartholomew, 

, 5 (1995) (per curiam)
(finding failure to disclose that witness had failed polygraph
test did not deprive respondent of material evidence
because polygraph results would have been inadmissible at
trial, even for impeachment purposes).

The Government responds that the value of Del Rosario's
later statement inculpating Zoletta (and thereby exculpating
Perez) would have been undercut by the fact that Del
Rosario's initial statement regarding Perez was fully and
powerfully corroborated by Perez's passport and travel
itinerary as well as the testimony of Uy and Almiranez. Del
Rosario's statement is therefore neither essential to Perez's
defense nor material evidence warranting a new trial. We

                               46
agree. See United States v. Messerlian, 

, 795
(3d Cir. 1987) (finding no Brady violation for failure to
disclose exculpatory evidence that was not credible); see
also Buehl v. Vaughn, 

, 181 (3d Cir. 1999)
(holding undisclosed statement that someone other than
the defendant possessed the murder weapon three weeks
after the murder was not material exculpatory evidence "[i]n
light of this overwhelming evidence that Buehl had the
[murder weapon] at the time of the killings and that he was
the murderer"); Landano v. Rafferty, 

, 572 (3d
Cir. 1988) (concluding that evidence tending to exculpate
defendant, Landano, in robbery and murder was not
material because "any such inference would have been
directly at odds with other, stronger evidence implicating
Landano in the crime").

Perez and Batoon also argue that the suppressed
evidence was material because the defense was prevented
from cross-examining Zoletta more vigorously to develop
further evidence exculpating Perez. The District Court
concluded that heightened cross-examination of Zoletta
that might have occurred if the defense had known of Del
Rosario's statement would not have induced Zoletta to
admit before the jury that he had been the one to deliver
the drugs to Del Rosario's apartment.

Perez and Batoon further argue that the suppressed
evidence was material because it might have persuaded the
District Court to grant Del Rosario immunity so that he
could testify for the defense at trial. The District Court,
reconsidering its denial of immunity for Zoletta on
defendants' motions for a new trial, conceded that"had the
identity of Mr. Zoletta as a potential specific alternative
source of the drugs been revealed prior to that immunity
hearing his name would certainly have been mentioned and
the court would have been asked to evaluate [Del Rosario's]
immunity request in that light." However, the District Court
ultimately concluded that its ruling on use immunity would
not have changed even if the Government had properly
disclosed Del Rosario's statement implicating Zoletta rather
than Perez. The Court explained that Del Rosario's
statement would not have been "clearly exculpatory
testimony" warranting a grant of immunity because its

                               47
value would have been undercut by Del Rosario's prior
inconsistent statement implicating Perez.

In this light, the District Court properly came to the
conclusion that a retrial was not warranted because there
was no reasonable probability that the suppressed evidence
would have changed the outcome of the original proceeding.
The District Court was best situated to observe Zoletta's
demeanor and attitude at trial. See Messerlian , 832 F.2d at
795 (concluding that, when considering whether witness's
testimony is exculpatory evidence for purposes of possible
Brady violation, the District Court "was best situated to
observe the demeanor of the two witnesses and to assess
the consistency of their testimony").

In addition, we find no merit to Perez and Batoon's
arguments that they were prejudiced at sentencing by the
suppressed statement. It had been disclosed by the time of
sentencing, and the defense lawyer conceded at the
sentencing hearing that he "did not have grounds to
dispute" the Probation Office's calculation of the applicable
drug amount based upon the defendants' participation in
the conspiracy.

With respect to Del Rosario's testimony, we conclude that
the District Court did not abuse its discretion when it
declined to immunize Del Rosario. In light of the evidence,
we find reasonable the District Court's determination that
the disclosure of Del Rosario's statement implicating Zoletta
would not have changed the decision to deny Del Rosario
use immunity. See United States v. Steele, 

808 (3d Cir. 1982) (judicial immunity properly denied where
proposed immunized testimony would not have been
"clearly exculpatory"); United States v. Lowell, 

, 965 (3d Cir. 1981) (same); see also United States v.
Ammar, 

, 251 n.8 (3d Cir. 1983) (judicial
immunity properly denied where "the exculpatory nature of
[the] testimony is at best speculative").

VII. Sentencing

Finally, Alcantera's and Batoon's challenge of their
sentences--specifically that the District Court erred (1) in
denying a two level minor role reduction pursuant to the

                               48
U.S. Sentencing Guidelines Manual S 3B1.2 20 and (2) in
attributing more than between one and three kilograms of
methamphetamine to Batoon--is without merit. Nor does
Alcantera's sentence violate Apprendi v. New Jersey, 

(2000).

A. Minor Role Reduction

In United States v. Haut, 

, 218 (3d Cir.
1997), we held that we must sustain the District Court's
factual findings as to a S 3B1.2 minimal or minor role
adjustment unless those findings are clearly erroneous. See

under a clearly erroneous standard the
district court's factual determinations, such as whether a
defendant receives a reduced or increased offense level
based on his role in the offense."); United States v. Carr, 

, 1207 (3d Cir. 1994); United States v. Bierley,

, 1064 (3d Cir. 1990) (citing United States v.
Mejia-Orosco, 

, 220-21 (5th Cir. 1989) (holding
that role in the offense is a factual determination, albeit
complex; a district court's decision not to apply an
adjustment based on such a determination is reversed only
for clear error)). A decision is clearly erroneous if the
reviewing court is left with the definite and firm conviction
based on all the evidence that the trial court made a
mistake. United States v. United States Gypsum Co., 

, 395 (1948); Davis v. United States Steel Supply,
No. 2571, 

, at *6 (3d Cir. Sept. 24, 1981).

Here, we cannot say that the District Court committed
clear error in finding that Alcantera and Batoon were not
entitled to a minor role reduction. The District Court
sentenced Alcantera to 190 months imprisonment. In doing
_________________________________________________________________

20. Section 3B1.2 states:

       Based on the defendant's role in the offense, decrease the offense
       level as follows:

       (a) If the defendant was a minimal participant in any criminal
       activity, decrease by 4 levels.

       (b) If the defendant was a minor participant in any criminal
       activity, decrease by 2 levels.

       In cases falling between (a) and (b), decrease by 3 levels.

                               49
so, the Court denied his motion for a minor role downward
departure of two points. It reasoned as follows:

       [T]he definition of a minor participant under Section
       3B1.2 is any participant who is less culpable than
       most other participants, whose role could not be
       described as minimal. . . . [I]f we take a look at the
       others involved here, Batoon, Almiranez, Zoletta, Del
       Rosario, this Court is not in a position to say it has
       been established that Mr. Alcantera is to be considered
       less culpable than those other participants. . . . Their
       role, although different perhaps than Perez or Del
       Rosario, in this Court's view, was significantly
       important, certainly they are as culpable as each other
       in performing those similar functions without which
       the distribution and the conspiracy could not have
       succeeded. So that it's the Court's determination that
       Mr. Alcantera is not entitled to a minor role here .. .

With respect to Batoon, the District Court denied his
motion for a minimal or minor role downward departure of
three points, sentencing him to 152 months imprisonment.
The Court stated:

       [N]ow to the question of . . . Section 3B1.2 .. . as to
       whether Mr. Batoon is entitled to a mitigating role. He
       asks the Court to consider even his role as minimal
       participant and then minor participant, someone
       entitled to a three level reduction if his conduct would
       be classified between those two roles. . . [F]or the
       purpose of Section 3B1.2, a minor participant means
       any participant less culpable than most other
       participants but whose role should not be discarded as
       minimal. . . . [T]his Court is not in a position to say
       that Mr. Batoon is a person who is less culpable than
       most other participants. . . . We have a number of
       people identified and the Court is not prepared to say
       that Mr. Batoon's role could be considered modest
       . . . . Mr. Batoon . . . [was] on the scene on the
       premises for at least a significant period of time on the
       day in question while couriers or purchasers, as the
       case may be, were coming and going for the purposes
       of receiving varying amounts of meth from Mr. Del
       Rosario. [T]he Court therefore finds . . . Mr. Batoon . . .

                               50
       not so less culpable than any others as to be
       determined to be less culpable than most other
       participants . . . . So that, based on that determination
       as well, the Court declines to apply a minimal or even
       a minor role adjustment.

Based on the record before us, we conclude that the
District Court's findings as to Alcantera's and Batoon's
roles in the conspiracy were not clearly erroneous. The
Court analyzed their respective participation against that of
each co-defendant and found that each was no less
culpable than any other, and therefore did not qualify for
the departure.

B. Quantity Attributable to Batoon

Batoon also argues that the Government failed to prove
that he was responsible for any of the drugs, let alone the
one to three kilograms found by the District Court to be the
quantity seized from Del Rosario's apartment. We review for
clear error the District Court's findings of fact regarding the
relevant quantities of drugs attributable to the defendant.
United States v. Gibbs, 

, 214 (3d Cir. 1999).
Calculation of the applicable drug amount must be
determined on the basis of Batoon's relevant conduct. See
U.S. Sentencing Guidelines Manual SS 1B1.3, 2D1.1.
Relevant conduct includes:

       (1) (A) all acts and omissions committed, aided,
       abetted, counseled, commanded, induced,
       procured, or willfully caused by the defendant; and

       (B) in the case of a jointly undertaken criminal
       activity (a criminal plan, scheme, endeavor, or
       enterprise undertaken by the defendant in concert
       with others, whether or not charged as a
       conspiracy), all reasonably foreseeable acts and
       omissions of others in furtherance of the jointly
       undertaken criminal activity,

       that occurred during the commission of the offense of
       conviction, in preparation for that offense, or in the
       course of attempting to avoid detection or responsibility
       for that offense . . . .

                               51


The application notes help clarify the
definition of relevant conduct. Application note 2 states in
part:

       In the case of a jointly undertaken criminal activity,
       subsection (a)(1)(B) provides that a defendant is
       accountable for the conduct (acts and omissions) of
       others that was both:

        (i) in furtherance of the jointly undertaken criminal
       activity; and

        (ii) reasonably foreseeable in connection with that
       criminal activity.

       . . .

       In determining the scope of the criminal activity that
       the particular defendant agreed to jointly undertake
       (i.e., the scope of the specific conduct and objectives
       embraced by the defendant's agreement), the court may
       consider any explicit agreement or implicit agreement
       fairly inferred from the conduct of the defendant and
       others.

       . . .

       With respect to offenses involving contraband
       (including controlled substances), the defendant is
       accountable for all quantities of contraband with which
       he was directly involved and, in the case of a jointly
       undertaken criminal activity, all reasonably foreseeable
       quantities of contraband that were within the scope of
       the criminal activity that he jointly undertook.

cmt. n.2.

Batoon contends that he should not be responsible for
the amount of drugs found in Del Rosario's apartment
because he did not "agree[ ] to jointly undertake" in the
drug distribution scheme. However, the District Court
found Batoon responsible for the full amount of drugs
pursuant to S1B1.3(a)(1)(A) because Batoon personally
"aided and abetted" the distribution of methamphetamine
by providing security to Del Rosario. Application note 2
explains that a finding of joint undertaking under
subsection (a)(1)(B) is not necessary where the defendant

                               52
personally aids or abets a crime under (a)(1)(A). 

cmt. n.2.

In response, Batoon replies that he did not "actually
agree[ ] to provide such security," and thus, he should not
be found responsible under this provision. However,
Batoon's argument fails to recognize that the agreement
can be explicit or an "implicit agreement fairly inferred from
the conduct of the defendant and others." U.S. Sentencing
Guidelines Manual S1B1.3, cmt. n.2. Here, from Batoon's
conduct (specifically his remaining in Del Rosario's
apartment for a significant amount of time while several
others came and went), the District Court found an implied
agreement between Del Rosario and Batoon to provide
security.

       I believe it's also a fair inference for the Court to
       conclude that Mr. Del Rosario did not want to be alone
       or virtually alone in the apartment with supplies of
       methamphetamine of this kind while being vested with
       any number of persons who would be looking for
       drugs. . . . [T]he presence of confidants in Mr. Del
       Rosario, such as, Mr. Batoon, . . . certainly had the
       effect of providing some level of security to Mr. Del
       Rosario . . . .

Furthermore, Batoon can be found responsible for the
full amount of drugs pursuant to S1B1.3(a)(1)(B) because
the full amount of drugs present in the apartment and
Batoon's conduct were "(i) in furtherance of the jointly
undertaken criminal activity; and (ii) reasonably foreseeable
in connection with that criminal activity." U.S. Sentencing
Guidelines Manual S 1B1.3, cmt. n.2. Batoon's conduct was
in furtherance of the jointly undertaken criminal activity
because, as already noted and among other things,
evidence exists that he provided security for Del Rosario
while distributing the drugs. The full amount was
reasonably foreseeable to Batoon because he was in the
apartment for an extended period of time while the drugs
were being distributed, and there was information
circulating that a large shipment had arrived from the
Philippines.

With the above in mind, it cannot be said that the
District Court committed clear error in attributing the

                               53
entire amount of the drugs to Batoon as he "is accountable
for all quantities of contraband with which he was directly
involved and, in the case of a jointly undertaken criminal
activity, all reasonably foreseeable quantities of contraband
that were within the scope of the criminal activity that he
jointly undertook." Id.; see also 

(holding that appellant who acted as enforcer was
responsible at sentencing for all of the drugs distributed
during the time he was an enforcer).

C. Apprendi

Although not claimed in the District Court, Alcantera, in
a pro se addendum to his counseled brief, claims before us
that the District Court erred by calculating the amount of
methamphetamine attributable to him at sentencing by a
preponderance of the evidence, rather than requiring the
amount to be determined by a jury beyond a reasonable
doubt. He argues that this violates Apprendi v. New Jersey,

(2000). Because he did not raise this claim in
the District Court, our Court reviews only for plain error.
See United States v. Olano, 

(1993); United
States v. Vazquez, 

(3d Cir. 2001) (en banc);
United States v. Mack, 

, 234-35 & n.12 (3d
Cir. 2000); see also United States v. Swatzie , 

, 1281 (11th Cir. 2000).

The Supreme Court in Apprendi held that,"[o]ther than
the fact of a prior conviction, 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." 

. Here, the
District Court's finding of the applicable drug amount did
not increase the penalty for the crime beyond the statutory
maximum. Alcantera was sentenced to 190 months, far less
than the lowest statutory maximum for violations of 21
U.S.C. S 846, which is 20 years. See 21 U.S.C.
SS 841(b)(1)(C), 846. Thus, there is no error, let alone plain
error, under Apprendi. See United States v. Williams, 

, 863 (3d Cir. 2000) (ruling that "Apprendi is not
applicable to [appellant's] sentence, because the sentence
actually imposed . . . was well under the original statutory
maximum of 20 years."); In re Edmonds, No. 00-3075, 

, at *1 (D.C. Cir. Oct. 12 2000) (per curiam)

                               54
(concluding that because defendant did not exceed the
S 841(b)(1)(C) statutory maximum, Apprendi "is not
implicated").

VIII. Conclusion

For the reasons stated above, we affirm the convictions
and sentences of Appellants Perez, Alcantera and Batoon.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               55