Tr. 2339-40 (3/9/95). Williams's attorney continued the cross-examination throughout the day, concluding the next morning.

Nearly a month later, after the close of the Government's case and after two defendants had put on their evidence, Williams's attorney asked permission to recall Johnson for further cross-examination, arguing that he wanted to impeach Johnson's prior statement that he had never before been arrested with evidence that he had once been arrested in Maryland. Although Williams's attorney conceded that he had possessed information on Johnson's arrest record when initially cross-examining Johnson a month earlier, he claimed that when Johnson volunteered that he had never before been arrested, he was "caught off guard" and failed to pursue the issue. Tr. 3709 (4/6/95). The prosecutor objected, pointing out that Johnson's arrest record had been provided in discovery and that the court had the discretion to refuse to recall Johnson to the stand. Agreeing with the prosecutor, the district court declined to allow Williams to recall Johnson.

[325 U.S.App.D.C. 348] District courts enjoy " 'wide discretion to control cross-examination.' " United States v. Thorne, 997 F.2d 1504, 1513 (D.C.Cir.1993) (quoting Harbor Ins. Co. v. Schnabel Found. Co.,946 F.2d 930, 935 (D.C.Cir.1991)). We will reverse a trial court's decision to limit cross-examination only where it resulted in substantial prejudice to the appellant. Id.; see also United States v. Mitchell, 49 F.3d 769, 780 (D.C.Cir.), cert. denied, --- U.S. ----, 116 S. Ct. 327, 133 L. Ed. 2d 228 (1995); FED. R. EVID. 611(a). Applying this highly deferential standard, we find no abuse of discretion in the district court's refusal to permit Williams to recall Johnson.

We are unconvinced by Williams's contention that Johnson's statement "caught counsel ... by surprise." Brief for Appellant Williams, at 14. Because Williams's trial counsel conceded that he had information on Johnson's prior arrest record when he first cross-examined Johnson, counsel surely could have reviewed the discovery materials on Johnson after the first day of cross to check for any inconsistencies or further fruitful avenues of cross-examination and followed up the next morning while Johnson was still on the stand.

Claiming that his attorney's failure to attack Johnson's statement immediately amounted to ineffective assistance of counsel, Williams also argues that the district court should have allowed the attorney to remedy the situation a full month later. We disagree. As the district court recognized, Williams's attorney used Johnson's statement--"I had never been arrested before"--to his advantage, asking, "That gives [you] further impetus to why you would want to cooperate, because you had never been arrested before, right?" Given that Williams's counsel had initially used Johnson's allegedly false statement to support his theory that Johnson would willingly lie on the stand to gain favor with the Government, the district court was well within its discretion in refusing to allow counsel to switch tactics and cross-examine Johnson on his alleged perjury.

This leaves Williams with the argument that "the rules of evidence did not compel the trial court to preclude Williams from examining Johnson during his defense case about Johnson's prior arrest." Brief for Appellant Williams, at 11. This is certainly true, but neither do the rules compel the court to allow further cross-examination of witnesses long since dismissed from the stand.

B. Sentencing Challenges

Enhancement Based on Prior Convictions

Williams begins his challenge to his sentence by arguing that the Government and the district court failed to abide by 21 U.S.C. § 851(a)'s prohibition against enhancing a drug defendant's sentence based on prior convictions "unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the [defendant] or counsel for the [defendant] ) stating in writing the previous convictions to be relied upon." 21 U.S.C. § 851(a)(1) (1994). We disagree.

By filing an enhancement information against Williams on August 31, 1994, approximately four months before trial, the Government complied with section 851(a). The information identified two 1990 convictions supporting enhancement: conspiracy to distribute heroin and use of a communications facility to distribute narcotics. Although Williams claims he never received personal notice of the enhancement information filed against him, he does not deny that his lawyer was properly served, which is all section 851(a) requires.

Moreover, at a November 17, 1994, status hearing at which Williams was present, the district court made a point of asking Williams's lawyer whether he had discussed the enhancement papers with his client. The Government had offered to withdraw the enhancement filing if Williams would plead guilty to the cocaine conspiracy charge on which he had been indicted. At the end of the colloquy, the court stated, "I just want to make sure what the situation was because ... Mr. Williams is facing a very drastic sentence if convicted with the enhancement papers." Williams's lawyer responded, [325 U.S.App.D.C. 349] "Right. Mr. Williams is aware of that your honor." Tr. 43 (11/17/94).

Williams also argues that the district court violated section 851(b), which imposes two duties on the court:

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

21 U.S.C. § 851(b). By giving Williams an opportunity to question the accuracy of the prior convictions, the district court carried out the first of its section 851(b) duties. As the Government concedes, however, the court neglected to inform the defendant that a failure to challenge his prior convictions would constitute a waiver. Brief for Appellee, at 152. Although failure to comply strictly with the statute's requirements is error, see United States v. Jordan, 810 F.2d 262, 269 (D.C.Cir.1987) (requiring strict compliance); United States v. Ramsey, 655 F.2d 398, 400 n. 7 (D.C.Cir.1981) (same), here the error was harmless, cf. United States v. Brown, 921 F.2d 1304, 1308 n. 5 (D.C.Cir.1990) (excusing less than complete compliance). Cf. United States v. Gonzalez-Lerma, 71 F.3d 1537, 1541 n. 4 (10th Cir.1995) (citing decisions from 1st, 4th, 7th, 9th, and 11th Circuits applying harmless-error analysis to § 851(b)), cert. denied, 517 U.S. 1114, 116 S. Ct. 1341, 134 L. Ed. 2d 490 (1996).

Not until his reply brief does Williams suggest the bases for challenging his prior convictions. Because all three are constitutional challenges--vindictive or selective prosecution, double jeopardy, and a Batson violation, Reply Brief for Appellant Williams, at 1--had he raised these challenges before the district court, he would have had to comply with section 851(c)(2)'s requirement to set forth "with particularity" any constitutional challenge to a prior conviction and "the factual basis therefor." 28 U.S.C. § 851(c)(2). Even on appeal, however, Williams fails to offer any factual basis for his claims. The closest he comes to complying with section 851(c)(2) is his claim, based on his own trial testimony, that he used the proceeds from pawning some jewelry to hire an Ohio law firm to file a section 2255 petition on his behalf. Because even now Williams cannot satisfy the requirements of section 851(c)(2), the district court's failure to comply with section 851(b) was not prejudicial. See United States v. Olano, 507 U.S. 725, 734-35, 113 S. Ct. 1770, 1777-78, 123 L. Ed. 2d 508 (1993) (explaining centrality of prejudice to harmless-error inquiry); cf. United States v. Fragoso, 978 F.2d 896, 902 (5th Cir.1992) (finding § 851(b) error harmless because of defendant's failure to comply with § 851(c)).

Drug Quantity

Relying on the presentence report, the district court found Williams responsible for two of the five kilos of cocaine that David Johnson and Ulysses Wilson purchased from Detective Gonzales on November 16, 1993. According to the presentence report, during a November 14, 1993, conversation at the federal prison at Petersburg, Williams and Johnson agreed on a two-kilo purchase. Williams explained that Johnson could buy one kilo for cash and one on credit. Williams now claims he should have been held responsible for only one kilo, which would have made his base offense level 26 instead of 28. He makes two arguments to support his contention, neither of which has merit.

The first, that he was a victim of indirect sentencing entrapment, rests on his claim that Johnson, intending to buy only one kilo, was entrapped by Detective Gonzales into buying more. Since the amount of drugs for which Williams was held responsible derives from Johnson's purchase, Williams argues, he too was a victim of Gonzales's insistence that Johnson buy more than one kilo.

Although recognizing the possibility of indirect entrapment claims of the sort maintained by Williams, we have held that such claims may be raised only if the defendant[325 U.S.App.D.C. 350] was induced by an unknowing intermediary at the instruction or direction of a government official or third party acting on behalf of the government (e.g., an informant). The defense should not apply if, in response to pressure put on him by the government, the unknowing intermediary on his own induces the defendant to engage in criminal activity.

United States v. Layeni, 90 F.3d 514, 520 (D.C.Cir.1996), cert. denied, --- U.S. ----, 117 S. Ct. 783, 136 L. Ed. 2d 726 (1997); see also United States v. Spriggs, 102 F.3d 1245, 1261-62 (D.C.Cir.1996). Even assuming Johnson's request to Williams amounted to inducement, that inducement did not flow from the direction or insistence of Government agents. Although Johnson's conversation with Williams about securing credit to buy a second kilo took place after Gonzales's conversation with Johnson urging him to buy more than one kilo, Johnson did not seek out Williams's help at Gonzales's direction. Before his conversation with Gonzales, Johnson had already discussed buying on credit with Williams, and it was Williams who suggested that Johnson ask Gonzales about buying on credit.

Williams also argues that the district court failed to make a specific finding that the two kilos were within the scope of the conspiratorial agreement into which he entered. In support of this argument, Williams relies largely on United States v. Saro, 24 F.3d 283 (D.C.Cir.1994), where we stated:

The extent of a defendant's vicarious liability under conspiracy law is always determined by the scope of his agreement with his co-conspirators. Mere foreseeability is not enough: someone who belongs to a drug conspiracy may well be able to foresee that his co-venturers, in addition to acting in furtherance of his agreement with them, will be conducting drug transactions on the side, but he is not automatically accountable for all those side deals.

Saro, 24 F.3d at 288; see also, e.g., United States v. Graham, 83 F.3d 1466, 1478-79 (D.C.Cir.1996), cert. denied, --- U.S. ----, 117 S. Ct. 993, 136 L. Ed. 2d 874 (1997); United States v. Childress, 58 F.3d 693, 723 (D.C.Cir.1995), cert. denied, 516 U.S. 1098, 116 S. Ct. 825, 133 L. Ed. 2d 768 (1996).

Contrary to Williams's assertion, however, the district court did not rely only on foreseeability, instead making specific findings that the two kilos satisfied both elements for vicarious liability:

There's ample evidence [that] the 2 kilograms was reasonably foreseeable and was in furtherance of the conspiratorial agreement: the discussion that Mr. Johnson testified to of obtaining 2 kilograms, with one to be purchased and one [to be] fronted, the discussion that he had been given a letter that he was supposed to deliver to Carlos that came through Mr. Williams that was going to arrange for this fronting correctly, and the discussions in the tapes reflecting that.

Tr. 29 (9/13/95). The record bears out the district court's statement. Williams twice acknowledged on the stand that Johnson explained to him that he intended to purchase two kilos and that he needed Williams's help in getting financing for the second kilo. Williams denied that he gave Johnson the assistance he requested, but Johnson's own testimony, notably his description of Naranjo's note that Williams gave him to take to Detective Gonzales, supports the district court's conclusion that Williams could reasonably foresee that Johnson would purchase two kilos. Although Williams denied that he had agreed to assist Johnson in buying two kilos, the district court reasonably credited Johnson's testimony to the contrary. That Johnson brought his friend Ulysses Wilson into the deal without Williams's knowledge in no way suggests that Williams was not a party to the agreement or that the purchase represented a "side deal" involving only Johnson and Wilson. According to Johnson, he brought Wilson along because, feeling insecure as a negotiator, he wanted the support of a friend.

Reverse Sting Downward Departure

Williams argues that even if the district court properly used two kilos in setting his base offense level, he should have received a downward departure based on the [325 U.S.App.D.C. 351] "reverse sting" provision of U.S.S.G. § 2D1.1, which provides:

If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant), the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant's purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted.

U.S.S.G. § 2D1.1, cmt. n.15 (1995). Refusals to depart are reversible only if the district court failed to recognize its authority to depart or if it made a clearly erroneous factual finding that the factor potentially justifying departure was not present. See United States v. Sammoury, 74 F.3d 1341, 1343-44 (D.C.Cir.1996); see also United States v. Washington, 106 F.3d 983, 1016 (D.C.Cir.1997). The district court committed neither error.

When Williams first raised the reverse-sting issue at his sentencing hearing, the district court acknowledged the possible applicability of note 15: "I'm applying what the guidelines says about the reverse sting, but I didn't find that it made a difference in the 2 kilograms that applies to you, that's all." Tr. 34 (9/13/95). To have reached this conclusion, the district court must have found either that Gonzales did not set the price at an artificially low level, or that Johnson did not buy more than he otherwise would have because of the depressed price. Neither of those findings would have been clearly erroneous. In support of his argument that the $18,500/kilo price was "substantially below the market value," Williams offers no evidence other than that Gaviria originally offered to sell at $24,000/kilo. Nor does anything in the record suggest that Johnson bought more than he otherwise would have because the price was $18,500 rather than the $24,000 originally suggested by Gaviria, or that he would have purchased less than the two kilos ultimately attributable to Williams. Most of the purchase was on credit. Even assuming Johnson had a fixed amount to spend (5 X $18,500 = $92,500), he still would have purchased nearly four kilos if the price had been $24,000/kilo.

Denial of Motion To Allow Witnesses and Evidence at Sentencing Hearing

Williams next challenges the district court's denial of his motion to call two FBI agents, three co-defendants, and an employee of the Pretrial Services Agency at his sentencing hearing. The court also prohibited him from introducing a videotape of David Johnson's and Ulysses Wilson's November 16 drug buy and an audio tape of a November 16 phone conversation between Williams and Jocelyn Johnson.

According to the district court, Williams gave three principal reasons for his request: to impeach trial testimony; to show that he was not involved in the conspiracy for which he had been convicted; and to dispute the two kilograms for which the presentence report held him responsible. The court reasonably rejected the first two justifications:

The function of the sentencing hearing is not to re-try issues which have been fully explored at trial. Here, three of the six witnesses which the defendant presently seeks to call ... previously testified at trial and were fully available to be cross-examined by the defendant. Moreover, the question of whether the defendant was "involved in the conspiracy" is a question that the jury explicitly answered when it found [the] defendant guilty....

As for the other witnesses the defendant requests, ... the defendant has not made even a minimal showing to this Court why their testimony is relevant to sentencing. The defendant's failure to offer proffers as to what these witnesses' testimony might be flies in the face of the Court's request ... to demonstrate why such testimony would be relevant. As for the videotape and tape recordings that defendant requests, these recordings are part of the trial record, and the Court is familiar with them. The defendant is free to call the Court's attention to specific portions of [325 U.S.App.D.C. 352] these recordings ... during oral allocution at sentencing.

Order, at 2-3 (9/6/95).

With respect to Williams's argument that he needed the testimony to challenge the attribution to him of two kilos of cocaine, the district court found Williams's request deficient in two respects: it failed to identify the portion of the drugs attributed to him that he wished to dispute; and it "failed to explain the nature of the witnesses' potential testimony, and why it is relevant to sentencing." Id. at 3. Although Williams now challenges one of the two kilograms of cocaine for which he was held responsible, he still has not explained the relevance of the witnesses or the tapes to that challenge. His brief simply refers to the defendant's bearing the burden of proof on mitigating factors at sentencing. The drug quantity that determines the base offense level, however, is not a "mitigating factor." See, e.g., United States v. Booze, 108 F.3d 378, 381 (D.C.Cir.1997). In his reply brief, Williams makes a series of claims about how the excluded testimony (and a number of documents not requested in his motion) would have demonstrated his innocence. Williams also mentions the drug quantity issue, suggesting that testimony from the two FBI agents would have supported his contention that he should have been held responsible for only one kilo. Reply Brief of Appellant Williams, at 2 & n.3. One of the agents, however, testified at trial and was subject to cross-examination. As the Government pointed out in its opposition to Williams's motion, the other agent's role was limited to her presence at the November 16, 1993, cocaine purchase. Under these circumstances, the district court's conclusion that Williams had failed to explain how the agent's testimony was relevant to the question of drug quantity was perfectly reasonable. See FED.R.CRIM.P. 32(c)(1) (decisions about admission of evidence at sentencing hearings entrusted to district court's discretion).

Upward Adjustment for Managing or Supervising Criminal Activity

Equally reasonable was the district court's decision to add two points to Williams's offense level under U.S.S.G. § 3B1.1(c) for being "an organizer, leader, manager, or supervisor" in a criminal activity. In applying this adjustment, the district court relied on two aspects of Williams's conduct: his service in linking together Naranjo and his confederates in the drug supply network, on the one hand, and David Johnson as a buyer and reseller, on the other; and his supervision of Johnson. At the sentencing hearing, the district court explained:

The Court recognizes that Mr. [Williams] was not the proponent originally of all this operation. He was brought in apparently by Mr. Naranjo to assist with further distributions of both heroin and cocaine and did so, introducing Mr. Johnson, and arranged through this introduction for the multiple heroin deals with Kiki and then attempted to arrange the cocaine deal.

He organized or helped the organization of Mr. Naranjo in making the phone calls and trying to assist in the distribution of these drugs, as I've said, bringing Mr. Johnson and Mr. Wilson, whom he didn't know, when Mr. Johnson recruited Mr. Wilson to assist in the distribution of these drugs. He obviously played an integral role in linking the Naranjo people and their access to drugs with Mr. Johnson and his people to arrange for the distribution and resale of these drugs, both the heroin and the cocaine, and as such, I believe under 3B1.1(c), 2 points are appropriate to add, as he is a supervisor and director of Mr. Johnson in the other matters I referred to in the conspiracy.

Tr. 27-28 (9/13/95).

The district court did not clearly err in making these findings. See, e.g., United States v. Baylor, 97 F.3d 542, 548 (D.C.Cir.1996) (adjustments under § 3B1.1 reviewed for clear error). As the Government acknowledges, the district court's conclusion that Williams recruited Johnson to buy cocaine from the Naranjo group rests on an inference that Williams was the one who supplied Naranjo with Johnson's phone number. Brief for Appellee, at 169. We think this inference is reasonable, both in light of Williams's position--as Naranjo's cellmate [325 U.S.App.D.C. 353] and Johnson's de facto brother-in-law--and his earlier heroin transactions with Johnson, as well as his later involvement with Johnson in the cocaine transaction. Although Williams claims that Naranjo got Johnson's phone number from another inmate named "fat Sam," he gives no record citation for this claim, and the transcript excerpt in his brief does not bear it out. See Brief for Appellant Williams, at 21.

The district court's conclusion that Williams supervised or managed Johnson in his cocaine purchase likewise finds support in the record. Although Johnson did state on cross-examination that buying the full five kilos was his idea, Williams served as Johnson's financial advisor and, ultimately, as conveyor of the financial backing Johnson needed to consummate the deal.

Upward Adjustment for Obstruction of Justice

Finding that Williams lied on the stand, the district court also added two points to his offense level for obstruction of justice under U.S.S.G. § 3C1.1. Williams challenges this adjustment, claiming that he misunderstood the prosecutor's questions and that the evidence supporting the court's finding of perjury was insufficient. See, e.g., Washington, 106 F.3d at 1016-17 (adjustments under § 3C1.1 reviewed for clear error).

Drawing on the definition of perjury under the federal perjury statute, the Supreme Court has held that an enhancement under U.S.S.G. § 3C1.1 based on perjury must rest on a finding that the defendant gave "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116, 122 L. Ed. 2d 445 (1993). The Court has also directed trial judges to "review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice." Id. at 95, 113 S.Ct. at 1116. Interpreting the instruction in section 3C1.1's first application note--that a defendant's testimony "should be evaluated in a light most favorable to the defendant," U.S.S.G. § 3C1.1, cmt. n.1--we have held that district courts' findings must rest on clear and convincing evidence, not a mere preponderance. See United States v. Montague, 40 F.3d 1251, 1253-56 (D.C.Cir.1994); see also United States v. Onumonu, 999 F.2d 43, 45 (2d Cir.1993). We have also held that the closer the issue, the more detailed the district court's findings must be. Montague at 1256; see also United States v. Sobin, 56 F.3d 1423, 1429 (D.C.Cir.), cert. denied, 116 S. Ct. 348 (1995).

This case was not particularly close, and the district court made sufficient findings to support the enhancement. In particular, the district court found that Williams lied when he denied any involvement in the conspiracy; when he claimed to have told Johnson not to deal drugs; and when he denied talking in code about drug deals with Johnson. The district court reached these conclusions because it credited Johnson's testimony and because taped conversations--between Williams and Johnson on November 5, 1993, and between Johnson and Detective Gonzales on November 12, 1993--contradicted Williams's assertions. Williams argues that he initially denied using drug trafficking code because he misunderstood the prosecutor's question, claiming that he later acknowledged using "slang," not "code." Near the end of his testimony, however, Williams again denied that his conversations with Johnson, whether characterized as code or slang, concerned drug transactions.

We do agree with Williams that because the perjury supporting a section 3C1.1 enhancement must concern the offense of conviction, see United States v. Barry, 938 F.2d 1327, 1332-35 (D.C.Cir.1991), the district court should not have relied, even in part, on perjury concerning the heroin transactions Williams helped arrange between Johnson and "Kiki." However, because the district court identified in the record plenty of perjury directly related to the offense of conviction, this error, which the Government attempts to gloss over by treating the heroin and cocaine conspiracies as one and the same, was harmless.[325 U.S.App.D.C. 354] 7. Downward Adjustment for Minimal Role

Relying on the principle that adjustments under U.S.S.G. § 3B1.2 should be based on "a defendant's culpability relative to that of his comrades," Washington, 106 F.3d at 1018; see also United States v. Caballero, 936 F.2d 1292, 1298-99 (D.C.Cir.1991), Williams claims that he was entitled to a downward adjustment for being a minor or minimal participant because Ulysses Wilson received an adjustment for being a minor participant and Williams's own role was less significant than Wilson's. In support of his argument, Williams offers two pieces of evidence: that Wilson was held responsible for the entire five kilos he and David Johnson bought from Detective Gonzales, whereas Williams was held accountable for only two kilos; and that Wilson actually put up half the cash used for the purchase. Reasonably viewing these considerations as not dispositive, the district court focused instead on essentially the same factors it relied on in giving Williams an upward adjustment for being a manager or supervisor: that Williams served as "a crucial link between the sellers and the buyers of [the] cocaine," Tr. 27 (9/13/95); that he supervised Johnson, who only brought Wilson in at the tail end of the conspiracy; and that he arranged for the purchase of most of the cocaine on credit, an arrangement worth much more than Wilson's small cash contribution. The district court's denial of the downward adjustment was not an abuse of discretion. See, e.g., Spriggs, 102 F.3d at 1263 (refusals to grant downward adjustments under § 3B1.2 reviewed for abuse of discretion).

C. Forfeiture

For his final challenge, Williams argues that the record contains insufficient evidence to support his criminal forfeiture conviction, claiming he contributed none of the money David Johnson and Ulysses Wilson used to buy cocaine from Detective Gonzales. Acknowledging that the $44,409 subject to forfeiture represents the amount of money that other conspirators derived from or used in the cocaine trafficking conspiracy, the Government argues that Williams is subject to forfeit this amount because co-conspirators bear joint and several liability under the criminal forfeiture statute, 21 U.S.C. § 853.

We have never considered the scope of liability under 21 U.S.C. § 853. Although every circuit addressing the issue has approved joint and several liability, see United States v. Hurley, 63 F.3d 1, 22 (1st Cir.1995) (collecting cases), cert. denied, 517 U.S. 1105, 116 S. Ct. 1322, 134 L. Ed. 2d 474 (1996), the question is not simple, as the First Circuit recently observed. Id. We need not decide the issue, however, because the Government concedes that the district court, contrary to FED.R.CRIM.P. 43(a), failed to announce the forfeiture portion of Williams's sentence in his presence. The Government requests that the court vacate the forfeiture count, however, rather than remand the proceedings, telling us that if we were to remand, it would simply seek dismissal of the charge rather than bear the expense of bringing Williams back to court. Thus, we will simply vacate the forfeiture portion of Williams's sentence.

VI. APPELLANT NARANJO

Naranjo raises a number of objections to his conviction and to his sentence, none of them persuasive. He claims that the district court erred when it denied his request to present a defense of duress to the jury and when it admitted evidence of his involvement in heroin transactions. He also claims that the evidence showed multiple conspiracies rather than a single conspiracy. Finally, Naranjo complains that the conduct of the Government in this case was so outrageous that the court must reverse his conviction as a matter of due process. As to sentencing, Naranjo argues that the statutory provision under which he received a life sentence does not apply to a conspiracy conviction, and that the district court erred in determining the quantity of drugs attributable to him as a member of the conspiracy.

A. Duress

When Naranjo's wife was arrested in June 1992, Naranjo placed his teenaged daughter Carolina in Sanders's custody. She lived with Sanders until March 1993 when she moved to California and began living with her aunt, Naranjo's sister. According to Naranjo, Sanders, who had on three occasions struck Carolina when she did [325 U.S.App.D.C. 355] something that he considered disobedient, threatened Naranjo by reminding him that Carolina was "in his hands." Naranjo claims that he agreed to help Sanders obtain cocaine only because he feared that otherwise Sanders would harm the girl. After a three-day hearing the district court ruled that Naranjo's defense of duress was insufficient as a matter of law and refused to allow Naranjo to make the duress argument to the jury. We review this ruling de novo.

A defendant may assert duress as an affirmative defense only if he shows that he acted under the threat of immediate death or serious bodily injury. United States v. Bailey, 444 U.S. 394, 409, 100 S. Ct. 624, 634, 62 L. Ed. 2d 575 (1980). In addition, he must show that he had no reasonable legal alternative to committing the crime. United States v. Jenrette, 744 F.2d 817, 820-21 (D.C.Cir.1984) (Congressman who claims that he agreed to accept bribe only because he feared that he was dealing with mobsters may not raise duress defense because he had opportunity to notify law enforcement officials during two days between agreeing to take bribe and actually taking it). A defendant "cannot claim duress when he had, but passed up, an opportunity to seek the aid of law enforcement officials." United States v. Rawlings, 982 F.2d 590, 593 (D.C.Cir.1993). Because Naranjo failed to show that he had no reasonable alternative but to engage in a drug conspiracy with Sanders, the district court properly rejected his defense of duress.

Naranjo's argument that he was not able to inform anybody of the threat to his daughter during the 13 months in which he participated, allegedly unwillingly, in the drug distribution conspiracy with Sanders borders upon the frivolous. Naranjo had ample opportunities to inform his daughter, his sister, his or his wife's lawyer, or prison officials about Sanders's alleged threat. His excuses for failing to take advantage of a single opportunity over the course of the conspiracy do not withstand scrutiny. First, Naranjo could have warned his sister or Carolina herself about the threat to her safety. Although Naranjo claims that he was concerned about upsetting his daughter, that is not a sufficient justification for continuing to participate in a major criminal conspiracy. Nor, when the principal of his daughter's school spoke to Naranjo about his concern for her well-being, did Naranjo inform the principal of the alleged threat to Carolina. Second, Naranjo could have told a prison guard or a more senior prison official of his dilemma. Naranjo claims that he could not have reported Sanders's threats to a prison guard because many of the guards were corrupt but he provides no concrete evidence in support of this assertion. He also claims that had he reported Sanders's threat to a prison official he would have been placed in protective custody, which Sanders would have interpreted as an indication that Naranjo had squealed. This speculation is belied by the record; on several occasions during the conspiracy Naranjo was placed in isolation; he so informed Sanders yet Sanders never betrayed any concern that Naranjo might have informed prison officials of their scheme. Cf. United States v. Merchant, 992 F.2d 1091, 1096-97 (10th Cir.1993) (prisoner who agreed to help smuggle cocaine into prison and claimed that he did so only out of fear of fellow prisoners could not raise duress defense because he could have sought protective custody). Finally, Naranjo could have told somebody other than a family member or a prison employee about Sanders's alleged threats. Naranjo points out that (again, allegedly corrupt) prison employees monitored most of his calls, but he was free to make unmonitored calls to his lawyer and he actually did speak, unmonitored, to his wife's lawyer during the course of the conspiracy.

Naranjo claims that his case is analogous to that of the defendant in United States v. Contento-Pachon, 723 F.2d 691 (9th Cir.1984). In that case the defendant proffered that he agreed to transport cocaine from Colombia to the United States only because he was told that if he did not do so then his wife and child would be killed. The defendant testified that he did not inform authorities in Colombia of his plight because the Colombian police were corrupt. As soon as he reached the United States he consented to an x-ray that revealed the balloons of cocaine that he had swallowed. Under these circumstances, [325 U.S.App.D.C. 356] the court held that Contento-Pachon could argue duress to the jury. Id. at 693-94. But that case does not help Naranjo. The conspiracy in this case lasted for 13 months, in contrast to the single flight at issue in Contento-Pachon. See United States v. Alicea, 837 F.2d 103 (2d Cir.1988) (defendant who had 20-minute period in which she was free to inform authorities about threat to her life precluded from raising duress defense); cf. United States v. Jennell, 749 F.2d 1302, 1306 (9th Cir.1984) (refusing to follow Contento-Pachon where conspiracy "dragged on for a period of more than a year"). In addition, Naranjo, unlike Contento-Pachon, had access to a number of prison officials, relatives, and lawyers, not simply to allegedly corrupt Colombian police officers.

B. Evidence of the Heroin Conspiracy

David Johnson, a cooperating co-defendant, testified that in October 1993 Naranjo and his cellmate Williams helped Johnson and Ulysses Wilson purchase heroin on two separate occasions from Kiki in New York. Naranjo set up the deal by giving Johnson's telephone number to Kiki. Naranjo also urged Kiki to call Johnson and tell him that Kiki was a friend of Williams, who was related to Johnson. Johnson and Wilson made two separate purchases from Kiki. When they expressed their disappointment with the quality of the heroin in the second lot Naranjo offered to help resolve the dispute. The Government did not charge Naranjo with conspiracy to distribute heroin but the district court nevertheless allowed the Government to introduce evidence of the heroin transactions, holding that this evidence showed the relationships among the parties and was intrinsic to the cocaine conspiracy. We review the decision to admit the evidence only for an abuse of discretion. United States v. Graham, 83 F.3d 1466, 1473 (D.C.Cir.1996).

Evidence of an uncharged crime or bad act may be admitted if, as required by Federal Rule of Evidence 404(b), it is probative of a material issue other than the defendant's character, and if, as required by Federal Rule of Evidence 403, that probative value is not substantially outweighed by the prejudicial value of the evidence. United States v. Clarke, 24 F.3d 257, 264 (D.C.Cir.1994). Naranjo argues that the evidence of the heroin purchases was introduced solely in order to taint his character: the Government had already introduced evidence showing his relationship to the other defendants. The evidence of the heroin transaction did, however, link Naranjo to Johnson and Wilson, who purchased some of the cocaine supplied by Zambrano in Miami. In this way the evidence helped tie the Miami transaction to the resulting resale of the cocaine. In addition, by showing how the appellants used code words to discuss the purchase of heroin, the evidence shed light upon the defendants' use of code words in discussing the purchase of cocaine. Finally, the evidence tended to rebut Naranjo's defense that he got involved with and stayed involved with the cocaine conspiracy only to benefit Sanders; Sanders played no role in the heroin deal.

The prejudicial value of the evidence of the heroin transactions is slight. Naranjo freely admitted in his testimony that he agreed with Gaviria to obtain cocaine for resale. After that concession, the incremental prejudice of evidence that he also assisted a heroin purchase was not likely to be substantial. In addition, the district court instructed the jury that the evidence could be considered for certain limited purposes only, viz., "whether it shows or tends to show the existence of a relationship between the defendants, and whether it shows or tends to show the defendants had a common scheme or plan which included the offenses for which they are now charged," and whether Naranjo was "predisposed to commit the offenses." Tr. 4974 (4/25/95); see United States v. Moore, 732 F.2d 983, 990 (D.C.Cir.1984) (limiting instruction lessens potential prejudice of bad act evidence). The probative value of the evidence, on the other hand, was high because the heroin deal took place around the same time as the cocaine transactions and therefore tended to rebut Naranjo's entrapment argument. See United States v. Manner, 887 F.2d 317, 321 (D.C.Cir.1989) (closeness in time and similarity of other crime to charged crime underscores relevance of evidence); Moore, 732 F.2d at 987[325 U.S.App.D.C. 357] (evidence of other crimes properly admitted in order to rebut entrapment defense). Accordingly, because the evidence was probative of material issues other than character, and because that probative value was not substantially outweighed by the prejudicial value of the evidence, the district court did not abuse its discretion in admitting the evidence.

C. Prejudicial Variance

In his initial brief Naranjo argues that there was insufficient evidence of a single conspiracy. "At best," he claims, "the evidence showed that Johnson, Wilson, and Williams were part of one conspiracy, that Gaviria and Zambrano were part of a second conspiracy, and [that Naranjo] and Gaviria were part of a third conspiracy." Brief for Appellant Naranjo, at 39. To the extent that we construe this claim as a simple argument about the sufficiency of the evidence, it is ludicrous, for Naranjo admitted to conspiring with Gaviria and Sanders. To the extent that we construe this claim as one of variance between the indictment (alleging a single conspiracy) and the evidence at trial, the argument is fatally flawed.

Naranjo shows neither error nor prejudice. In order to determine whether the evidence supports the jury's implicit finding of a single conspiracy the court looks at whether the defendants shared a common goal, any interdependence among the participants, and any overlap among the participants in the allegedly separate conspiracies. United States v. Gatling, 96 F.3d 1511, 1520 (D.C.Cir.1996). The Government showed all three in this case. The goal of the conspiracy, as charged in the indictment and as proved at trial, was the distribution of cocaine. That the participants entered the distribution chain at different levels is of no moment. See United States v. Childress, 58 F.3d 693, 710 (D.C.Cir.1995). Naranjo himself provides both the element of interdependence and the element of overlap; he oiled each cog of the conspiracy, helping to move the cocaine from Zambrano to Gaviria to Williams and Johnson.

Even assuming that there was a variance, Naranjo failed to show that he was substantially prejudiced by it. The risk of "spillover prejudice," which may occur when a jury imputes evidence from one conspiracy to a defendant involved in another conspiracy, is less likely the fewer the defendants. United States v. Anderson, 39 F.3d 331, 348 (D.C.Cir.1994). Only four defendants were tried in this case. Cf. United States v. Alessi, 638 F.2d 466, 475 (2d Cir.1980) (10 defendants a sufficiently small number for jury to give individual consideration to each defendant). In addition, the danger of spillover prejudice is minimal when the Government presents tape recordings of individual defendants, as it did in this case, so that the jury has "no need to look beyond each defendant's own words in order to convict." Anderson, 39 F.3d at 348. Moreover, Naranjo played a role in all aspects of the conspiracy. Accordingly, even if there were three separate conspiracies, Naranjo would have to be deemed a member of each and could not, therefore, have been the victim of any spillover prejudice.

D. Outrageous Government Conduct

Finally, Naranjo argues that his conviction should be reversed because the Government's conduct of the case violated his rights under the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The Supreme Court has recognized that there may be situations "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1642-43, 36 L. Ed. 2d 366 (1973). But see Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S. Ct. 1646, 1653, n. 7, 48 L. Ed. 2d 113 (1976) (Powell, J. concurring) (especially difficult to prevail upon ground of outrageous governmental conduct in case involving contraband offenses because they are "so difficult to detect in the absence of undercover Government involvement"). While this court, therefore, cannot rule out the possibility of finding valid a defense of outrageous governmental conduct, but see United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995) (outrageous governmental [325 U.S.App.D.C. 358] misconduct not independent ground for ordering new trial but may support inference that without such tactics defendant might have been acquitted); United States v. Tucker, 28 F.3d 1420, 1428 (6th Cir.1994) (separation of powers principle compels court to reject outrageous conduct defense), we have limited the defense to conduct involving "coercion, violence, or brutality to the person," United States v. Walls, 70 F.3d 1323, 1330 (1995); see also United States v. Kelly, 707 F.2d 1460 (1983).

Naranjo does not come even close to meeting that standard. He complains that the Government should have cut off his telephone privileges so that he would have been unable to continue his participation in the conspiracy; but the Government has no duty to prevent a prisoner from committing more crimes. Sounding more like an outraged taxpayer than the drug-dealer that he is, Naranjo then complains that the Government wasted money for the dubious purpose of luring a foreigner to the United States so that he could be incarcerated at public expense. How the executive branch spends (or wastes) taxpayer money is, however, not our concern. See Lincoln v. Vigil, 508 U.S. 182, 192, 113 S. Ct. 2024, 2031, 124 L. Ed. 2d 101 (1993) (allocation of funds from lump-sum appropriation not subject to judicial review).

Naranjo then argues that the failure of law enforcement officers to prevent Sanders from beating Naranjo's daughter constitutes outrageous conduct. The district court rejected Naranjo's contention that Sanders abused Naranjo's daughter, finding only that he disciplined her. Even assuming arguendo, however, that Sanders's behavior constituted "coercion, violence, or brutality to [Naranjo]," the Government's refusal to intervene does not constitute coercion, violence, or brutality to him. See DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) (State has no constitutional duty to protect child from his father after receiving reports of possible abuse).

E. Sentencing

Naranjo was convicted of violating 21 U.S.C. § 846, which provides that any person who conspires to commit a drug offense "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the ... conspiracy." Naranjo's underlying offenses were the distribution and the possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841. That statute provides, in part, that: "If any person commits a violation of this subparagraph or of sections 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release." 21 U.S.C. § 841(b)(1)(A). Because Naranjo had (more than) twice previously been convicted of a felony drug offense the district court sentenced him to life imprisonment.

Naranjo argues that because section 841 does not expressly mention section 846, the Congress did not intend for the mandatory life provision of section 841(b) to apply to a conviction for conspiracy under section 846. Naranjo seeks support for this position from our decision in United States v. Price, 990 F.2d 1367 (1993), but to no avail. In Price we invalidated the Sentencing Commission's inclusion of conspiracy within the meaning of a "controlled substance offense" for the purpose of the Commission's Career Offender Guidelines. We did so, however, only because the congressional mandate upon which the Sentencing Commission expressly relied, 28 U.S.C. § 994(h), directed the Commission to establish guidelines for multiple offenders who had been convicted of an offense described in section 401 of the Controlled Substances Act, of which conspiracy is not one. Accordingly, there was no congressional authority for the Guideline insofar as it applied to a conspiracy conviction. Naranjo would have us read Price as somehow standing for the proposition that the Congress has determined "that conspiracy to commit an offense does not warrant as harsh treatment as the actual commission of the offense which is the object of the conspiracy." Brief for Appellant Naranjo, at 32. Specifically, he argues that because the Congress did not in 28 U.S.C. § 994(h) expressly direct the Sentencing Commission to impose an enhanced penalty [325 U.S.App.D.C. 359] upon a repeat drug offender convicted of a drug conspiracy, it could not have meant to do so when it enacted 21 U.S.C. § 846. Naranjo provides no authority for this curious leap of logic. The law that Naranjo violated, section 846, clearly states that a violator shall be punished as provided by section 841. This is neither complicated nor contravened by the reasoning of Price, which holds only that the Sentencing Commission may not exceed the bounds set for it by the Congress. Accordingly, we join the Tenth Circuit, see United States v. O'Brien, 52 F.3d 277, 278-79 (1995), and the Eighth Circuit, see United States v. Wessels, 12 F.3d 746, 752 (1993), in holding that the mandatory provision for a life sentence in 21 U.S.C. § 841(b)(1)(A) applies to a conviction for conspiracy.

F. Drug Quantity

Finally, Naranjo argues that there was insufficient evidence to sentence him for having distributed more than four kilograms of cocaine. The district court made express findings that Naranjo was responsible for the five kilograms of cocaine that he ordered from Colombia at the beginning of the conspiracy and for the 15 kilograms of cocaine that were delivered to government agents in Miami. Naranjo argues that these findings are erroneous, asserting that he ordered four, not five, kilograms at the beginning of the conspiracy and that he should not be held responsible for the cocaine purchase in Miami. Because the mandatory life sentence provision of section 841(b)(1)(A) applies as long as at least five kilograms of cocaine are attributed to a defendant with two or more prior drug convictions, we need determine only that Naranjo was responsible for at least five kilograms. United States v. Saro, 24 F.3d 283, 285-86 (D.C.Cir.1994) (where sentence would not be affected by disputed quantity, any error in attributing quantity to defendant is harmless). Naranjo did not timely object to the district court's decision to attribute 20 kilograms of cocaine to him, so we review that determination for plain error only. Id. at 286.

The district court attributed the 15 kilograms of cocaine distributed in Miami to Naranjo for two independent reasons. First, the amount was reasonably foreseeable. Second, Naranjo was responsible as an aider and abettor of the sale. Naranjo argues that the 15-kilogram purchase was not foreseeable because his only agreement with his co-conspirators was to import and resell four kilograms of cocaine. The evidence showed, however, that Naranjo and Sanders had previously been involved together in deals for much greater amounts of cocaine. In addition, Naranjo directed Sanders to send Gaviria to Miami in order to meet with Zambrano, whom Naranjo considered capable of producing a large amount of cocaine. Finally, Gaviria testified that while Naranjo was waiting for the initial shipment of cocaine to arrive, he tried to obtain other shipments from Colombia. Accordingly, because Naranjo had already ordered four or five kilograms, was aware of Zambrano's ability to produce a large quantity of drugs, and was attempting to place new orders, it was reasonably foreseeable that his co-conspirators would purchase as much as 15 kilograms.

Nor did the district court clearly err in holding Naranjo responsible for the 15 kilograms as an aider and abettor. The elements of aiding and abetting an offense are (1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge (3) that the other was committing an offense; and (4) assisting or participating in the commission of the offense. United States v. Washington, 106 F.3d 983, 1004 (D.C.Cir.1997). Much of the evidence showing that the 15-kilogram purchase was foreseeable also supports the conclusion that Naranjo aided and abetted that purchase. Naranjo vouched for Zambrano and helped to arrange the meeting between Gaviria and Zambrano. The court permissibly inferred Naranjo's guilty knowledge of the crime from conversations among Naranjo, Gaviria, and Zambrano while the deal was taking place and from testimony that a cut of the proceeds of the transaction was sent to Naranjo's sister with Naranjo's knowledge. Finally, by facilitating Gaviria's trip to Miami, Naranjo assisted the commission of the crime. Accordingly, the district court did not err in attributing more than five kilograms of cocaine to Naranjo.

Judge Wald authored the Introduction and Parts I and IV. Judge Ginsburg authored Parts II and VI. Judge Tatel authored Parts III and V

At the time of the events leading to the convictions at issue here, Jose Naranjo was serving time at FCI for four federal drug convictions

Gaviria had been deported to Colombia after being convicted of federal drug offenses in the United States

The record in this case includes approximately 100 taperecorded conversations among various members of the conspiracy and undercover government agents. Many conversations were conducted in Spanish and/or in code. Several individuals at trial testified that the coded conversations were in fact discussions of planned drug transactions. Because the evidence on appeal must be construed in the light most favorable to the government, this statement of facts summarizes those conversations by assuming that the code words did refer, for example, to kilograms of cocaine. We note, however, that appellant Zambrano contests the district court's conclusion that certain conversations showed that he was aware of and knowingly participated in the November 7 drug sale in Miami. Zambrano's claims are based in part on his assertion, explained in more detail below, that he did not understand that the code words pertained to drug deals. On review, we find that the record evidence belies this assertion, and that it was well within the realm of the jury and the district court to discredit Zambrano's testimony in this regard

At various points during the conspiracy, the men referred in their conversations to kilograms of cocaine as "cars," "girls," "rooms" in an apartment, "female employees," and "videos." Several individuals testified at trial that all those terms were code words for drugs

In April 1993, Sanders followed Naranjo's directive to wire $5,000 to Gaviria in Colombia. Gaviria used this money to enter the United States illegally. On May 14, 1993, Gaviria arrived in the United States, and Sanders took Gaviria to an apartment in McLean Gardens in Northwest Washington. As they rode from the airport, Gaviria inquired about the drug scene in Washington, including the possibility of selling cocaine, heroin, and marijuana in D.C

Gaviria's sister Martha, who was also residing in Miami, had put the two men back in touch

The FBI introduced Gonzales into the scheme when Gaviria, who did not speak English well, asked Sanders to find someone to act as an interpreter. Sanders told Gaviria that Gonzales was a friend who had previously traded drugs with Sanders

Transcript ("Tr.") 1637-39 (2/16/95). Zambrano did carry out this request. He and Martha met with Gonzales and Sanders on a street in Miami. Gonzales testified that Zambrano "stated he was a businessman and he didn't like to be kept waiting," i.e., for the money that was still owed by them for the drugs that Humberto and Martha Gaviria had delivered. Tr. 1423-25 (2/14/95); Tr.1933 (3/3/95). Martha Gaviria testified that Gonzales told Zambrano that he would take the drugs to Washington and that he wanted to meet with Zambrano again to get additional drugs, to which Zambrano responded by "ask[ing] when could they give him the money." Tr. 1642 (2/16/95). Zambrano explained that for them to get another shipment of drugs, "it was necessary for them to give him that money first, and then he will let them know." Id

Cooperating co-defendant David Johnson testified that Williams was an established drug dealer. Johnson also testified that Williams and Johnson's sister Jocelyn had parented a child together, and that Williams had helped Johnson start selling cocaine in Baltimore. Sometime after Williams was imprisoned, Johnson--at Williams's direction--pawned $10,000 of Williams's jewelry to buy cocaine and heroin from a Spanish-speaking New York drug dealer known as "Kiki" and introduced to Johnson by Williams

This conversation was surreptitiously taped by Gonzales

Tr. 3899 (4/10/95). Appellant Naranjo also tried to assert a defense of duress, claiming that he feared for the safety of his daughter Carolina. However, the district court did not allow that defense to go to the jury

Appellants were not indicted on Count Two, in which David Johnson and Ulysses Bobby Wilson were charged with possession with intent to distribute 500 or more grams of cocaine. Johnson, Wilson, and Martha Gaviria were indicted along with appellants, but negotiated guilty pleas prior to trial

Section 846 provides that:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

21 U.S.C. § 846 (1994).

Section 841 provides in part:

(a) Unlawful acts

Except as authorized in this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....

21 U.S.C. § 841(a)(1) (1994).

This argument is made for the first time on appeal, and thus is reviewed only for plain error. United States v. Sayan, 968 F.2d 55, 62 (D.C.Cir.1992)

Although there is no overt act requirement for a § 846 conspiracy conviction, see, e.g., United States v. Pumphrey, 831 F.2d 307, 308 (D.C.Cir.1987) ("In contrast to the general criminal conspiracy statute, 18 U.S.C. § 371, which explicitly requires proof of an overt act, § 846 makes no mention of any such requirement. Absent clearly expressed legislative intent to the contrary, this unambiguous statutory language settles the question."), the government must prove that the defendant had the "specific intent to further the conspiracy's [unlawful] objective." United States v. Childress, 58 F.3d 693, 708 (D.C.Cir.1995)

Moreover, the government's showing may be made by circumstantial evidence. Id. at 1518; Lam Kwong-Wah, 924 F.2d at 303 ("No distinction is made between direct and circumstantial evidence in evaluating the sufficiency of evidence supporting a guilty verdict.")

Circumstantial evidence suggested that Zambrano had arranged for the stranger, who called himself "the Panamanian," to deliver the drugs to Gaviria

See, e.g., Childress, 58 F.3d at 714 (fact that defendant made two 50 kilogram deliveries of cocaine to drug distribution network was "sufficient to prove his agreement to participate in the conspiracy" because "[t]wo deliveries of this magnitude suggest a continuity of relationship between [the defendant] and the [drug distribution] organization and support the inference that the defendant knew that the organization to which he was delivering such a sizeable amount of drugs must involve a substantial distribution network")

Circumstantial evidence also suggested that Zambrano intended to supply large quantities of drugs to the conspiracy on an ongoing basis. For example, when Zambrano was preparing for delivery of the seven kilogram shipment to Gonzales, he offered to acquire a sample of heroin for Gonzales and stated that the price would be in the range of $120,000 to $150,000 per kilogram.

The statute provides in relevant part that, "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C. § 3231 (1994)

See also United States v. Miller, 111 F.3d 747, 750 (10th Cir.1997) (court applies "a more relaxed standard for finding waiver of venue rights than for finding waivers of other constitutional rights in criminal trials," and under this standard "[a] defendant can waive venue rights by his inaction"); United States v. Meade, 110 F.3d 190, 200 (1st Cir.1997) ("We have ... recognized that venue is a waivable personal privilege designed for the benefit of the defendant. As such, the constitutional and statutory venue provisions are not restrictions on the court's jurisdiction.") (citation omitted); United States v. Winship, 724 F.2d 1116, 1124 (5th Cir.1984) ("[A] defendant can waive venue rights by his silence--just by his failure to lodge an objection prior to trial.")

Indeed, Gaviria committed numerous overt acts in furtherance of the conspiracy within D.C., "including telephoning Zambrano to discuss potential drug deals and receiving payment for the eight kilograms of cocaine that were delivered in Miami on November 7, 1993." Brief for Appellee, at 75 (citations omitted)

The Guidelines provide that:

If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1 (1995).

As the court very convincingly explained, "[t]he tape recordings of his own discussions with the agents, his calling the people back and talking to them in Washington, his using counter-surveillance moves to shake the tails of people who were following him in his meetings with the undercover officers, his moving the drugs around in the various cars, and his discussions of additional deals, including heroin deals, all would seem to me to belie any suggestion that the sole reason he acted was to help Martha Gaviria because he was coerced or forced into it by the threats or what he had perceived to be dangers from these other individuals, that is, the undercover officers." Hearing Transcript ("Hrg. Tr.") 44-45 (2/5/96)

Additionally, the scope of his involvement in the conspiracy was crucial to several sentencing issues, as discussed further below

The Sentencing Guidelines provide:

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.

U.S.S.G. § 3B1.2 (1995). The commentary to the Guidelines establishes that a minor participant is "any participant who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2(b), cmt. n.3.

For similar reasons we conclude that, even if--despite some circumstantial evidence to the contrary--it were true that Zambrano did not arrange for the "the Panamanian" to supply the 15 kilograms of cocaine to Gaviria, the court was correct to point out that Zambrano did not "ha[ve] to be a supplier of the drugs to not be qualified as a minor or minimal participant." Hrg. Tr. 19 (2/5/96). Cf. United States v. Pitz, 2 F.3d 723, 733 (7th Cir.1993) (departure denied where defendant picked up and delivered 24 ounces of cocaine, collected payment, and reimbursed the supplier); United States v. Flores-Payon, 942 F.2d 556, 561 (9th Cir.1991) (downward departure denied where defendant "was not merely a courier but was an actual participant in a drug transaction who attended the negotiations and then brought the drugs to the scene" and commented on the quality of the drugs); United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990) (departure denied where defendant "was personally entrusted with and ultimately delivered" large amount of cocaine to undercover officer)

See, e.g., United States v. Washington, 106 F.3d 983, 1017-18 (D.C.Cir.1997) (holding that two appellants were not entitled to "minor role" adjustment despite the fact that they were not "leaders" of the conspiracy due to their active participation and relatively " 'equal[ ] culpab[ility]' " with other non-leader members of the conspiracy)

The court acknowledged defense counsel's argument that Zambrano should receive a departure "because he is the least culpable of the defendants, he was just tangentially involved and had a limited role," Hrg. Tr. 16 (2/5/96), but rejected this argument based on Zambrano's substantial role in the conspiracy and also noted "that both Gaviria and Naranjo vouched for Mr. Zambrano as a reliable source of drugs and a major player." Id

The Guidelines provide that:

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:

(a) timely providing complete information to the government concerning his own involvement in the offense; or

(b) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,

decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1 (1995).

See also, e.g., United States v. Layeni, 90 F.3d 514, 524 (D.C.Cir.1996) (stating that "[t]he sentencing court 'normally should deny the two-point reduction to a defendant who does not plead guilty,' " and explaining that, if a defendant does go to trial, "[t]he raising of an entrapment defense, in and of itself, does not constitute either an acceptance of responsibility or an expression of remorse for one's criminal conduct"), cert. denied, --- U.S. ----, 117 S. Ct. 783, 136 L. Ed. 2d 726 (1997)

See also United States v. Fletcher, 74 F.3d 49, 56 (4th Cir.) (safety valve unavailable where defendant "perjured himself at trial"), cert. denied, --- U.S. ----, 117 S. Ct. 157, 136 L. Ed. 2d 101 (1996)

In rejecting Zambrano's safety valve argument, the district court stated:

I don't have any demonstration to me that Mr. Zambrano made any good faith attempt to cooperate or to provide information and evidence that he has concerning this matter beyond his testimony at trial that I've already found to be perjurious in part. I don't think his stipulation of any--that he had, knows nothing else is sufficient to meet the fifth element of the safety valve, where there is contrary evidence in the, produced at trial as to his involvement. In other words, I cannot find that he candidly explained to the Court his role in the offense.

Hrg. Tr. 38-39 (2/5/96).

It is clear that Zambrano did not meet the requirement of full and candid disclosure at trial, so we need not reach the issue of whether "trial testimony alone may satisfy the fifth requirement of the [safety valve provision]" in cases where that testimony is complete and truthful. Brief for Appellant Zambrano, at 13 (arguing that "[t]he recent case law clearly indicates that as long as the defendant provides truthful information--be it in the form of a letter, a guilty plea or other testimony--he has met the fifth requirement of the statute")

As the Government rightly points out in its brief, see Brief for Appellee, at 131-32, we need not reach the issue of whether the November 7 sale was a reasonably foreseeable act in furtherance of the conspiracy because Zambrano's liability for that sale was based on his personal participation, not on a co-conspirator liability theory

This subsection of the Guidelines provides that relevant conduct includes "(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant...." U.S.S.G. § 1B1.3(a)(1)(A) (1995)