IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21216

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN FORTE,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (00-CR-531-1)

March 24, 2003

Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Presenting numerous issues, many of which were not raised in

district court, John Forte appeals his conviction and sentence for

possession with intent to distribute cocaine. The principal issue

is whether Forte had standing to challenge a seizure and search of

suitcases (containing the cocaine) being delivered to him, but

before he received them. DISMISSED in PART; AFFIRMED in PART,

resulting in the conviction and sentence being AFFIRMED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I.

On 12 July 2000, a DEA Agent at a Houston, Texas, airport

discovered freezer packs (containing cocaine in liquid form) in

suitcases being transported by Angela Gegg and Marissa Laken. Gegg

told the Agent that she and Laken were delivering the cocaine to

Forte in Newark, New Jersey. Gegg and Laken agreed to cooperate

with law enforcement by recording conversations with Forte and

making a controlled delivery of the cocaine to him. That evening

and the next morning, several conversations between Gegg and Forte

were recorded.

That next morning (13 July), the women and several officers

flew to Newark. When they arrived, Gegg called Forte and asked him

to pick up Laken and her. Upon Forte arriving at the airport,

Gegg handed him the suitcases; he was arrested.

In January 2001, Forte and Laken were charged with one count

of possession with intent to distribute five kilograms or more of

cocaine on 12 July 2000, in violation of

(a)(1),

(b)(1)(A)(ii) and

, and a related conspiracy count.

(Gegg had entered a plea agreement.)

Trial began in late August 2001, with Laken soon pleading

guilty. At trial, the Government claimed: Forte contracted with

Chris Thompson, an experienced drug trafficker, to supply Thompson

with female drug couriers to transport cocaine; Forte recruited

Gegg, Laken, and Jessica Robinson; prior to the July 2000 incident

2 for which Forte was indicted, Gegg and Robinson each made multiple

drug-transport trips (some involving international travel) at

Forte’s direction; and, for that July incident, Forte contracted

with Gegg and Laken to transport from Harlingen, Texas, to New York

City collapsible coolers containing ice packs filled with cocaine.

Forte’s defense was that he did not knowingly possess the

cocaine. He testified he believed he was introducing Thompson to

women who could discretely transport money.

In September 2001, a jury convicted Forte on the possession

with intent to distribute count; it acquitted him on the conspiracy

count. Forte was sentenced, inter alia, to a 168-month

imprisonment term.

II.

Trial had four days of testimony, among others, by Forte,

Thompson, Gegg, Laken, and Robinson. Forte retained new counsel

for this appeal. New counsel present 13 issues (some involve sub-

issues) concerning pre-trial, trial, and sentencing; but, seven of

those issues, as well as a portion of another, were not preserved

in district court, including, for example, no motion for judgment

of acquittal. The glaring difference between issues preserved and

issues presented is, perhaps, explained by the fact that appellate

counsel did not try this case; they are scouring a cold record in

an attempt to find reversible error. That, of course, is their

obligation to their client. On the other hand, nothing in this

3 opinion is intended to suggest that Forte’s trial counsel should

have preserved in district court the many issues being raised for

the first time on appeal.

For the pre-trial phase, Forte contends: (1) the freezer

packs should have been suppressed because the warrantless seizure

and search violated the Fourth Amendment; and (2) the court

improperly denied his motion to dismiss the indictment for

Government misconduct (presentation of perjured testimony to grand

jury).

For the trial, he contends: (1) the court denied him a valid

challenge for cause, requiring him to unnecessarily exercise a

peremptory strike against that juror and forcing him to accept

another objectionable juror; (2) the prosecutor abused her work

product privilege and improperly deprived him of witness

statements; (3) the prosecutor improperly and repeatedly referred

to Forte’s exercise of his Fifth Amendment right to post-arrest

silence and assistance of counsel; (4) the court improperly

instructed the jury on willful blindness even though no evidence

justified the instruction; (5) the court improperly instructed that

the Government was not required to prove Forte knew the controlled

substance was cocaine; (6) the court erred when it excused a juror

after deliberations had begun and recalled an alternate; and (7)

the evidence was insufficient to support his conviction for knowing

possession with intent to distribute cocaine.

4 For sentencing, Forte claims the court improperly: (1)

assessed him a management role; (2) failed to apply the safety

valve guideline; (3) denied an “aberrant behavior” downward

departure because it based its decision on acquitted count conduct;

and (4) sentenced him more harshly solely because he went to trial

and declined to cooperate.

The standard of review for the sufficiency challenge is

presented infra. For the other issues, we normally review the

district court’s legal conclusions de novo; its factual findings,

only for clear error. E.g., United States v. Chavez-Villareal,

(5th Cir. 1993). A finding is clearly erroneous if

we are left with the definite and firm conviction that a mistake

has been committed. E.g., United States v. Hernandez,

(5th Cir. 2002).

The many issues not raised in district court are reviewed only

for plain error. FED. R. CRIM. P. 52(b); e.g., United States v.

Garcia-Flores,

(5th Cir. 2001). This narrow

standard requires Forte to demonstrate a “clear” or “obvious” error

that affected his substantial rights.

Even then, we have

discretion to correct the error and will generally do so only if it

“seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings”. E.g., United States v. Calverley,

(5th Cir. 1994) (en banc), cert. denied,

(1995).

5 A.

For the pre-trial phase, Forte contends: (1) the cocaine was

discovered during a seizure and search that violated his Fourth

Amendment rights and should have been suppressed; and (2) the

indictment should have been dismissed because the Government

presented perjured testimony to a grand jury.

1.

Forte maintains he had standing to contest the seizure and

search and that they were unconstitutional. Because Forte lacks

standing, we do not reach the latter issue.

In December 2000 (prior to trial), Forte joined co-defendant

Laken’s motion to suppress. In an extremely comprehensive and

fact-intensive motion, with supporting documents and legal

authority, Forte claimed, inter alia: he had standing to challenge

the search of the suitcases carried by Laken and Gegg. The

Government contested standing.

At the start of the suppression hearing, the district court

ruled Forte had failed to make a prima facie showing for standing.

It determined Forte’s extensive joinder motion papers failed to

state sufficient specific facts to show either (1) a possessory or

ownership interest in the seized luggage or any of its contents or

(2) his interest was one that society recognizes as objectively

reasonable. The court reasoned, based on the allegations in those

papers, that Forte had no reasonable expectation of privacy,

6 because all he owned, or expected to own, was the cocaine. The

court offered Forte an opportunity to present new evidence related

to standing; he declined. (Subsequently, Laken’s motion to

suppress was denied.)

The denial of a suppression motion is reviewed de novo.

United States v. Gomez,

(5th Cir. 2001). Whether

a defendant has standing to challenge a search and seizure is

reviewed de novo; underlying factual findings, of course, only for

clear error. E.g.,

Forte has the burden of demonstrating

standing. United States v. Wilson,

(5th Cir.

1994). In reviewing a ruling on a motion to suppress (including

standing), we review “the evidence taken at trial as well as the

evidence taken at the suppression hearing”. United States v.

Alvarez,

(5th Cir. 1993), cert. denied,

(1994).

“In general, a person who is aggrieved by an illegal search

and seizure only through the introduction of damaging evidence

secured by a search of a third person’s premise or property has not

had any of his Fourth Amendment rights infringed.” Wilson,

. See also United States v. Krout,

(5th Cir. 1995), cert. denied,

(1996). “Co-

defendants ... may not assert the Fourth Amendment rights of their

alleged partners in crime solely on the basis of their

7 interpersonal association.” United States v. Dyar,

(5th Cir.), cert. denied,

(1978).

As the district court held, to establish standing, Forte must

show: (1) an actual, subjective expectation of privacy with respect

to the place searched or things seized; and (2) that expectation is

one society would recognize as reasonable (collectively reasonable

expectation of privacy). E.g., United States v. Cardoza-Hinojosa,

(5th Cir.), cert. denied,

(1998);

United States v. Thomas,

(5th Cir. 1997), cert.

denied,

(1998). To determine whether Forte had the

requisite reasonable expectation of privacy, we consider several

factors: “whether [Forte] has a [property or] possessory interest

in the thing seized or the place searched”; “whether he has the

right to exclude others from that place”; “whether he has exhibited

a subjective expectation of privacy that it would remain free from

governmental intrusion”; “whether he took normal precautions to

maintain privacy”; and (not applicable here), “whether he was

legitimately on the premises”. Cardoza-Hinojosa,

.

In applying this test, the reasonable expectation of privacy

vel non is reviewed de novo. E.g., United States v. Vicknair,

(5th Cir.), cert. denied,

(1980).

Again, underlying factual findings are reviewed only for clear

error. Id. The following analysis demonstrates Forte lacked

standing.

8 a.

For the legitimate expectation of privacy prong (as opposed to

whether society would recognize it as reasonable, discussed infra),

and regarding the sub-issue of a property or possessory interest,

Forte did not have either interest in the suitcases or their

contents at any time prior to or during the search. First, he

never owned the suitcases. Thompson and Jose Flores purchased them

in Texas, and gave them to Gegg and Laken. Second, Forte did not

own a single item in either suitcase. Thompson and Flores provided

the coolers and freezer packs filled with cocaine; the suitcases

contained those items, as well as the women’s clothing and other

personal belongings.

Forte confirmed this, testifying at trial that he was merely

a courier, his role being to deliver the suitcases to Thompson; he

testified that he did not even intend to open the suitcases because

the contents did not belong to him and he was to hold them for

Thompson. Moreover, Forte clearly did not possess the suitcases or

their contents at the relevant time: for the search in Houston,

Gegg and Laken were in sole possession of the luggage.

Regarding the right to exclude others from the suitcases,

Forte had no right to exclude anyone. Only Gegg and Laken could

have done so. (Voluntarily vel non, the women failed to exercise

this right, providing access to the suitcases.)

9 Regarding both exhibition of a subjective expectation of

privacy and precautions taken to maintain privacy, Forte did

neither. He never had the suitcases in his possession until he met

Gegg and Laken at the Newark airport; before then, while he was

more than 1,000 miles away (in the New York area), the suitcases

were purchased in Texas by Thompson and Flores and placed in the

possession of Gegg and Laken. Cf. Rawlings v. Kentucky,

(1980) (one who put drugs in another’s purse had no reasonable

expectation of privacy). The suitcases were unlocked, which is

inconsistent with an expectation of privacy, see, e.g., United

States v. Payne,

(8th Cir.), cert. denied,

(1997), and were traveling openly on a common carrier as

“checked” luggage, subject at least to inspection by airport

security.

Forte claims standing because: the suitcases were being

delivered to him; he took possession of them; and he claimed an

interest in their contents. He notes: he made telephone calls

checking on the arrival of the suitcases and assuring their safe

delivery; he warned the women not to draw attention to themselves

or raise any “red flags”; and, when Gegg threatened to abandon the

suitcases at the Newark airport instead of delivering them to

Forte's apartment, he went to the airport to receive them. (Forte

asserts (for the first time in his reply brief) that the Government

is precluded from contending Forte lacked standing because, at

10 trial (subsequent to pre-trial no-standing ruling), the Government

took the position that Forte did all of these things. No authority

need be cited for the rule that we generally do not review issues

first raised in a reply brief.)

Forte's actions are insufficient to vest him with standing.

Although the suitcases may have been intended for him (so he could

transfer them to Thompson), Forte did not have a property or

possessory interest at the time of the earlier search and did not

maintain a right to exclude others from the suitcases or freezer

packs at that time. Forte’s actions reflect a desire to avoid

detection by law enforcement; but, they do not demonstrate a

generalized expectation of privacy in the suitcases or constitute

reasonable precautions to exclude others. See Cardoza-Hinojosa,

(citing Rakas v. Illinois,

, 143-44

n.12 (1969)) (“the ‘subjective expectation of not being discovered’

conducting criminal activities is insufficient to create a

legitimate expectation of privacy”).

Forte cites United States v. Villareal,

(5th

Cir. 1992), for the proposition that persons do not lose their

expectation of privacy in repositories of personal effects they

send by private parties. Villareal held the defendant had a

reasonable expectation of privacy in a container he shipped by

common carrier (a motor transport company) to himself using a

fictitious name.

Villareal stated that a party does not

11 surrender expectations of privacy by sending closed containers by

private parties.

A legitimate expectation of privacy vel non,

however, is a fact-specific inquiry to be decided on a case-by-case

basis, based on the totality of the circumstances. E.g., United

States v. Haydel,

(5th Cir. 1981), cert.

denied,

(1982).

Obviously, this case is factually distinct from Villareal on

a number of grounds, the most significant of which is that Forte

lacked an ownership interest in the suitcases (or their contents).

Further, in Villareal, no other party could have potentially

consented to a search of the container (it was in the possession of

the carrier at the time of the search). Here, Gegg and Laken had

possession of the luggage, including the ability to exclude others.

In sum, Forte has not met his burden of demonstrating a

legitimate expectation of privacy. Cf. Payne,

(no

legitimate expectation of privacy in car, where defendant did not

own car and had not possessed or driven it; or in suitcase, where

defendant only possessed it for a short time, it was zipped not

locked, and identification tags did not name him).

b.

Even assuming Forte demonstrated a legitimate expectation of

privacy, he cannot meet the second prong for standing — that

expectation is one society would recognize as reasonable. See

Thomas,

. The cocaine was not in Forte's personal

12 possession and was, instead, being conveyed by common carrier in

another person’s luggage.

2.

Forte and Laken were indicted on two counts: (1) possession

with intent to distribute cocaine; and (2) conspiracy in that

regard. Forte claims the district court erred in denying his

motion to dismiss the indictment because of the Government's

knowing presentation of perjured testimony to the grand jury, as

urged in Laken's August 2001 motion. Forte joined that motion.

Laken alleged that a DEA Agent presented perjured testimony to

the grand jury to secure an indictment on two occasions (with three

statements): the Agent testified in September 2000 that Gegg and

Laken admitted they knew they were carrying drugs; and testified in

January 2001 that Laken became involved in the case before her

arrest in July 2000 and that Laken was instructed on how to

preserve the cocaine. The court orally denied the motion to

dismiss.

The denial of a motion to dismiss the indictment for

Governmental misconduct is reviewed de novo. United States v.

Johnson,

(5th Cir. 1995). We review only for

clear error factual findings regarding perjury, United States v.

Strouse,

(5th Cir. 2002), and prosecutorial

misconduct, United States v. Bourgeois,

(5th Cir.

13 1992). The materiality of perjured statements is determined de

novo. Strouse,

.

“Government misconduct does not mandate dismissal of an

indictment unless it is so outrageous that it violates the

principle of fundamental fairness under the due process clause”;

such violations are found only in the rarest circumstances.

Johnson,

(internal quotation marks omitted). The

knowing presentation of perjured testimony at trial in order to

secure a conviction constitutes such a due process violation.

E.g., Miller v. Pate,

(1967). However, where the

Government presents false testimony to the grand jury, the

indictment may be dismissed only if the testimony is knowingly

sponsored by the Government and material to the decision to indict.

See Strouse,

. A statement is material if it is

capable of influencing the factfinder with regard to the issue

before it.

.

As demonstrated infra, the Agent did not present false

testimony. Therefore, we do not reach the other elements necessary

for the relief sought on this issue.

a.

The Agent immediately clarified to the grand jury that neither

Gegg nor Laken admitted to knowingly transporting cocaine:

Just to clarify it, when the girls [Gegg and Laken] ... were approached ... they said it was just cooler packs ... they eventually told

14 us that they weren’t really sure what was in there ... and we explained ... we had seen narcotics transported in manners like this, and both girls didn’t come right out and say, “Yes, I know that there’s fourteen kilos of cocaine in there,” but Marissa [Laken] says that she didn’t actually open the suitcases ....

(Emphasis added.)

b.

Regarding whether the Agent testified falsely that Laken had

been involved in the scheme since June 2000, there is trial

testimony that: around that time (approximately one month before

the arrests), Forte asked Gegg whether she would be interested in

carrying cocaine hidden in coolers; she discussed this with Laken

(her roommate); and the two decided “[h]ell, yeah, let’s do it.

Rock on”.

c.

Regarding whether Forte gave both Laken and Gegg instructions

on how to care for the freezer packs to prevent them from melting,

Forte claims he spoke only to Gegg when she was in Houston on 12

July (day before arrest) and instructed her to put the “ice cream”

on ice in a hotel bathtub to prevent it from thawing. As the

Government points out, the instructions were intended for both

women, who were operating together. Each had freezer packs of

cocaine in her suitcase that had to be put on ice.

15 B.

For the trial, Forte contends: (1) the district court

improperly denied him a challenge for cause, requiring him to use

a peremptory strike and accept another unacceptable juror; (2) the

prosecutor failed to turn over witness statements as required under

the Jencks Act; (3) the prosecutor improperly used Forte's post-

arrest silence against him; (4) the willful blindness instruction

was not justified by evidence; (5) the instruction that the

Government was not required to prove Forte knew the controlled

substance was cocaine was incorrect; (6) the court erred in

excusing a juror and substituting an alternate; and (7) the

evidence was insufficient on the knowledge element to support his

conviction.

1.

The first denied challenge for cause concerned prospective

juror number 18. Forte maintains this denial was erroneous and

caused him to unnecessarily use a peremptory strike, which forced

him to accept another objectionable juror (number 25).

Forte challenged number 18 on the basis that she would give

more credence to a police officer than to an ordinary citizen.

Number 18 stated: she would not be open to the proposition that an

officer would “stretch the truth”; she put officers in a different

category than others (in terms of truth-telling); and she could not

say whether it would be difficult for her to follow an instruction

16 that the law regards “everyone even” in terms of how to assess

credibility. Relying on United States v. Duncan,

(5th Cir. 1999), cert. denied,

(2000), the district

court denied the challenge and Forte used a peremptory strike.

Number 25 stated during voir dire that she: had a very close

family member involved in drugs and alcohol; was not sure whether

she could not let that experience affect her impartiality, but

would try; and could not put her personal experience “out of [her]

mind”. The court then asked her whether she could conscientiously

base her decision solely on the evidence at trial; she responded:

“I would try to the best of my ability to do that”. Forte

challenged number 25 for cause. The court re-questioned the

potential juror: “Can you base your decisions in this case solely

on the evidence you hear in this courtroom?” She replied: “Yes,

I think I can.” The court denied the challenge and number 25

served on the jury.

A juror impartiality ruling is reviewed only for manifest

abuse of discretion. United States v. Munoz,

(5th

Cir.), cert. denied,

(1994). “We grant broad

discretion to the trial judge in making determinations of

impartiality and will not interfere with such decisions absent a

clear abuse of discretion.” United States v. Hinojosa,

(5th Cir. 1992).

17 Under the Sixth Amendment, Forte has a right to an impartial

jury, including “the exclusion of a potential juror if his views

would prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath”.

Duncan,

(internal citation omitted). The loss of

a peremptory strike, however, does not violate the Sixth Amendment,

as long as the jury is impartial.

We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.

(internal citation omitted). Accordingly, our inquiry is

limited to the impartiality vel non of number 25. See Ross v.

Oklahoma,

(1988).

The district court, which had the opportunity to evaluate the

credibility of number 25, including her demeanor, did not commit a

manifest abuse of discretion in denying the challenge. On the one

hand, that juror expressed her frustration with a close family

member who was involved in drugs and alcohol and who was currently

proceeding in the court system. On the other hand, she testified

she thought she could be fair and told the court she would try to

the best of her ability to base her decision solely on the

evidence. The court questioned number 25 regarding her ability to

18 decide the case based solely on that evidence; based on her answer,

it was assured she could do so.

2.

The district court did not require the prosecutor to produce

her notes of witness interviews (originally requested pre-trial).

Forte claims the prosecutor abused her work product privilege by

taking notes of witness interviews during preparation for trial,

but not reducing those notes to statements.

At a November 2000 hearing on discovery motions, the district

court ruled that neither side was required to preserve notes of

witness interviews. At a June 2001 hearing, Forte requested

witness statements by Thompson (hired Forte to recruit couriers).

The prosecutor told the court that Thompson had not made any Jencks

Act statements, but that she had debriefed Thompson and made notes.

Forte responded that the Government was purposefully not writing

reports of its witness interviews. The court ruled that the

Government did not have to prepare such reports and determined that

it had substantially complied with its discovery obligations.

Nevertheless, the prosecutor provided her interview notes to the

court for an in camera inspection.

The day before Thompson testified at trial, Forte’s counsel

again requested any interview notes or reports concerning

Thompson's statements, as well as those of Robinson (courier not

involved in July incident). The prosecutor responded that neither

19 Thompson nor Robinson had prepared a statement and there were no

reports; she had only her handwritten notes of her interviews.

The court ruled that it would listen to the testimony, and if

any of the prosecutor’s notes were discoverable under the Jencks

Act, Brady v. Maryland,

(1963) (evidence favorable to

the accused or useful to the defense for impeachment must be

produced), or Giglio v. United States,

(1972) (same),

in the light of that testimony, it would provide the notes (in its

possession) to the defense. The court also directed the Government

to produce Thompson for an interview by Forte’s counsel. Although

the Government did so, Thompson apparently refused, of his own

volition, to be interviewed when he met with Forte's counsel.

After hearing the testimony and conducting its in camera review,

the court determined that the notes contained no discoverable

Jencks, Brady, or Giglio material.

A district court’s decisions regarding discovery under the

Jencks Act are reviewed only for clear error. United States v.

Hodgkiss,

(5th Cir. 1997). And, even if we

determine there was a violation, we conduct harmless error review.

Under the Jencks Act, the Government must provide the

defendant with witness statements relating to the subject matter on

which the witness has testified.

(b), (e)(1). A

“statement” includes a written statement made by the witness and

20 signed or otherwise adopted and approved by him, and a

substantially verbatim recital of a statement made and

contemporaneously recorded.

(e)(1), (2). (Brady

and Giglio hold the Constitution forbids the Government from

suppressing evidence favorable to the accused or useful to the

defense for impeachment of witness who testifies against the

accused.

;

.)

In United States v. Martino,

(5th Cir. 1981),

further unrelated proceedings at

(5th Cir. 1982),

defendants raised essentially the issue being raised by Forte.

They “condemn[ed] the manner in which the government conducted

interviews with its witnesses ostensibly to avoid producing Jencks

Act material”, challenging its practice of interviewing potential

witnesses during which no written or recorded statements were taken

and maintaining the Government purposely failed to record the

interviews or create “statements”. Id. at 387. Noting that “[i]t

is undisputed that interview notes taken by an interviewer during

an interview with the witness do not qualify as a statement under

the Jencks Act”, Martino held that the notes were not discoverable

Jencks Act statements. Id.

No requirement has been brought to our attention that all interviews must be recorded or that interview notes must be reduced to writing and signed or otherwise approved by the witness. We cannot presume that the prosecutor acted in bad faith by failing to reduce his notes to written form.... Indeed

21 only the foolish or exceptionally talented counsel will depend solely on his memory when preparing for the examination of a key witness. But the fact that counsel usually will take notes does not mean that these notes often will be “statements”. Counsel rarely take down verbatim what witnesses say in these prepatory conferences. Consequently prosecutors’ notes may be expected to meet the requirements of [the Jencks Act] very infrequently.

Id. (internal citations omitted).

In any event, the prosecutor’s notes are not in the record.

Thus, we cannot determine whether those notes are sufficiently

detailed to constitute one of the “very infrequent” instances where

they must be produced. “It is well-settled that the appellant

bears the burden of creating the record on appeal. Fed. R. App. P.

11(a). If the record does not establish a basis for reversal, we

must affirm.” United States v. Coveney,

(5th

Cir. 1993). See also United States v. Myers,

(5th

Cir. 1999), cert. denied,

(2000). Forte did not

include the notes in the record. Lacking them, there is no basis

on which we can hold that the failure to disclose them violated the

Jencks Act (or, assuming it did, that the error was not harmless).

3.

During cross-examination of Forte, and in order to impeach his

exculpatory story (believed only money being transported), the

prosecutor raised Forte's post-arrest silence in conjunction with

post-arrest interviews he gave:

22 Q. And you testified on direct that [the Agent] told you that you were under arrest for possession of cocaine. Remember that?

A. Yes.

Q. And when you were arrested for possession of cocaine and you were given an opportunity to explain your involvement you didn’t claim ignorance, did you?

A. No, I did not.

Q. You didn’t claim mistake, did you?

A. No, I did not.

Q. You didn’t claim innocence, did you?

A. No. I asked for a call—I asked to call my lawyer.

Q. You didn’t say, “Whoa, possession of cocaine? There’s clearly been some mistake. I thought it was money,” did you?

A. I asked to call my lawyer.

Q. As a matter of fact, when given the opportunity to explain your involvement to law enforcement in this operation that you now claim you thought was completely legal, you lied to them, didn’t you?

A. Did I lie to them? In what respect?

Q. Well, let’s go through it because you said that you don’t really remember the conversation. But [the Agent] did. As a matter of fact, she made a report of that conversation.

A. Yes, she did.

Q. And she testified you lied to her, didn’t she?

A. I’m not privy to that. Can we go over that again?

23 ***

Q. And you heard [the Officer] ask you how you got involved in the drug business, and you didn’t say “Drug business? I’m not involved in the drug business,” did you?

A. [The Officer] never asked me how I got myself involved in the drug business, she asked me how I got myself involved in this situation.

Q. And when asked by [the Officer], you didn’t say at that time, “I’m innocent. I don’t know anything about any cocaine,” did you?

A. I said, “Sometimes things happen beyond your control.”

Q. You didn’t say to [the Officer] when she asked you how you got involved in this, “Hey, hey, wait a minute. I thought this was money. I didn’t know anything about cocaine,” did you?

A. No.

Q. As a matter of fact, you didn’t offer a denial to [the Officer], you offered an explanation?

A. No. I was in handcuffs.

Forte did not object during this colloquy.

Forte rested at the conclusion of his testimony, and the

Government had no rebuttal evidence. Shortly thereafter, a

conference was held outside of the presence of the jury to discuss,

inter alia, the time permitted for closing argument. Pursuant to

Doyle v. Ohio,

(1976) (Due Process Clause prohibits

impeachment of defendant’s exculpatory story by using defendant’s

24 post-arrest, post-Miranda silence), the district court sua sponte

cautioned the prosecutor “to be awfully careful in final argument

about any Doyle error”. It noted that the Government was “allowed

to cross examine [Forte]” about “inconsistent statements he gave to

[the Agent] and other[s]” but recommended that she “stay away from

it entirely” and cautioned her that, if she was going to use it,

she should carefully read the Doyle precedent. (Emphasis added.)

Because Forte did not object to the reference to his post-

arrest silence, we review only for plain error. E.g., Garcia-

Flores,

. Again, we will only reverse if, inter alia,

there was a clear or obvious error that affected Forte’s

substantial rights.

As mentioned, Doyle held that the Due Process Clause prohibits

using the defendant’s post-arrest, post-Miranda silence to impeach

his exculpatory story, offered for the first time at trial. It

forbids the Government’s exploitation of silence after the

Government has helped induce it by informing the defendant of his

right to remain silent. E.g., Jenkins v. Anderson,

(1980) (use of pre-arrest silence does not violate due process).

On the other hand, as the district court discussed with

counsel, Doyle does not prohibit all use of post-arrest silence.

For example, Doyle is not violated by the impeachment use of a

defendant’s voluntary statement made post-Miranda warnings.

Anderson v. Charles,

(1980); Pitts v. Anderson,

25

(5th Cir. 1997). In other words, and

consistent with the above-referenced comment by the district court,

“Doyle does not apply to cross-examination that merely inquires

into prior inconsistent statements”, because “[s]uch questioning

makes no unfair use of silence” and “a defendant who voluntarily

speaks after receiving Miranda warnings had not been induced to

remain silent”. Charles,

.

a.

It does not appear that the prosecutor’s references

constituted Doyle-error. Even assuming arguendo there was error,

it was not plain error. First, although the prosecutor clearly

intended to use Forte’s silence to impeach the story he offered at

trial, it is not “clear” or “obvious” that this use violated Doyle.

Forte did not exercise his right to remain silent after his

arrest and Miranda warnings. He voluntarily waived his rights and

agreed to be interviewed, without the presence of his attorney, by

the Agent and later by the Officer referenced in the above-quoted

colloquy.

During these interviews, Forte claimed he did not know the

contents of the suitcases; at trial, he testified he had believed

they contained money, not cocaine. As such, the prosecutor’s

cross-examination may be viewed as an attempt to impeach Forte

through the use of a prior inconsistent statement (permitted by

Charles) rather than a plea for the jury to infer guilt from his

26 exercise of his Fifth Amendment rights (prohibited by Doyle). See

Pitts,

(most courts have held where post-arrest and

trial statements involve the same subject matter and the post-

arrest statement is sufficiently incomplete to be “arguably

inconsistent”, comments upon omissions are permitted).

b.

Even assuming a “clear” or “obvious” Doyle error, Forte has

not shown it substantially affected his rights; nor has he shown

the error was so significant that we should exercise our discretion

to correct it. In cases where Doyle error has been held

reversible, the critical error was the prosecutor’s closing

argument use of an inference of guilt from post-arrest silence.

United States v. Rodriguez,

, 421 n.2 (5th Cir. 2001),

for instance, held the Doyle error was reversible,

emphasiz[ing], that it was the prosecutor’s foregoing final comment [during closing argument] that crossed the Doyle line. The prosecutor’s questioning of [the defendant] during cross-examination was a permissible attempt to impeach....

See also Garcia-Flores,

(gravamen of claimed Doyle

violation focused on Government’s closing argument). The

prosecutor heeded the district court’s advice and, during closing

argument, did not refer to Forte’s post-arrest silence.

27 4.

28 Forte claims the district court erred by instructing on

willful blindness because the evidence was insufficient to support

the instruction. During the charge conference, Forte agreed,

however, that a willful blindness instruction was “appropriate”.

Therefore, the court, without objection, instructed as follows:

You may find that [Forte] had knowledge of a fact if you find that [Forte] deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of [Forte] cannot be established merely by demonstrating that [Forte] was negligent, careless, or foolish, knowledge can be inferred if [Forte] deliberately blinded himself to the existence of a fact.

Because Forte did not object, we review only for plain error.

See, e.g., FED. R. CRIM. P. 30, 52(b); United States v. Gray,

(5th Cir. 1996), cert. denied,

(1997). (In

fact, because Forte expressly agreed to the instruction, the

claimed error is arguably invited error. See United States v.

Pankhurst,

(5th Cir.), cert. denied,

(1997) (agreeing in charge conference to later-challenged

instruction nearly invited error).)

When reviewing a jury instruction, we determine “whether the

charge, as a whole, is a correct statement of the law and whether

it clearly instructed the jurors as to the principles of law

applicable to the factual issues confronting them”. United States

v. Farfan-Carreon,

(5th Cir. 1991) (internal

citations omitted). A “deliberate ignorance” or “wilfull

29 blindness” instruction is appropriate when “the facts support an

inference that the defendant was subjectively aware of a high

probability of the existence of illegal conduct, and ... he

purposefully contrived to avoid learning of the illegal conduct”.

United States v. Fierro,

(5th Cir. 1994), cert.

denied,

(1995) (internal citations omitted).

Forte does not contend that the instruction misstated the law.

Rather, he maintains the evidence was insufficient to support it

because nothing demonstrated his conscious purpose to avoid

enlightenment.

The instruction was supported by Forte’s testimonial denial of

his knowledge that Gegg and Laken were transporting cocaine and his

claim he thought they were instead carrying money. Inter alia,

Forte testified on direct examination as follows:

Q. What did you start thinking, they’re in Panama, they’re in Mexico City, they’re bringing money? Somehow your mind had to be working, like, what’s all this about. I mean, just basic curiosity. Did you make any assumptions? If so, what were they?

A. In all honesty, that was [Thompson’s] business. So, I didn’t think it was necessarily my place to delve into that as long as at the end of the day, he would stick to his end of the agreement and provide me the money....

5.

Citing Apprendi v. New Jersey,

(2000), and Ring

v. Arizona,

(2002), Forte maintains that, because a

30 quantity and type substance were charged in the indictment, the

Government had to prove these elements beyond a reasonable doubt.

The court instructed the jury, without objection:

The government is not required to show that [Forte] knew that the substance involved was cocaine. It is sufficient if the evidence establishes beyond a reasonable doubt that [Forte] possessed with intent to distribute a controlled substance.

Again, unobjected-to instructions are reviewed only for plain

error.

Forte’s contention is foreclosed by our recent decision in

United States v. Gamez-Gonzalez,

(5th Cir. 2003): the

Government is not required to prove a defendant’s mens rea

regarding the type and quantity of a controlled substance for drug

possession offenses.

6.

The district court excused a juror after deliberations had

begun and substituted an alternate. Deliberations began late in

the morning of 5 September 2001. Early that afternoon, the court

received a note from the jury seeking direction because one of the

jurors had limited English proficiency.

The court advised counsel that, if the juror was

incapacitated, the court could excuse her and either proceed with

only 11 jurors or substitute an alternate. It then conducted an

evidentiary hearing (although one was not required) to determine if

the juror was incapacitated. See United States v. Virgen-Moreno,

31

(5th Cir. 2001), cert. denied,

(2002).

The juror testified: she only spoke a little English; she

only understood the testimony in the case “[a] little bit, not too

much”; and she was unable to communicate in English with her fellow

jurors. After giving counsel the opportunity to recommend

additional questions for the juror (they had none), the court ruled

that the juror was not conversant in English, did not understand

the testimony, and could not read documents in English. Without

objection, the court excused the juror, recalled an alternate, and

ordered the jury to begin its deliberations anew.

A district judge's decision to remove a juror he believes is

impaired is reviewed only for abuse of discretion. E.g., United

States v. Huntress,

(5th Cir. 1992), cert.

denied,

(1993).

[I]t is within the trial judges’s sound discretion to remove a juror whenever the judge becomes convinced that the juror’s abilities to perform his duties become impaired. We will not disturb the judge’s decision unless we find that it prejudiced the defendant or another party. Prejudice occurs ... when a juror is discharged without factual support or for a legally irrelevant reason.

Id. (internal citations omitted).

Forte maintains: the juror was not incompetent; and, even if

she were (and her dismissal proper), the district court should have

32 instead proceeded with 11 jurors. Because Forte did not object, we

review only for plain error.

a.

Dismissing the juror, who the court had good reason to believe

was impaired (based on the jury’s note and her own testimony), was

not error, much less plain error; the decision fell well within the

court's broad discretion. The juror was dismissed with factual

support and for a legally-relevant reason (inability to fulfill her

duties as a juror).

b.

Likewise, substituting the alternate for the dismissed juror,

rather than proceeding with 11, was not error, much less plain

error. Substitution is allowed by FED. R. CRIM P. 24(c)(3):

Retention of Alternate Jurors. When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during deliberations. If the court decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.

Before the jury began its deliberations, the court permitted

the alternate to leave the courthouse after instructing him not to

discuss the case with anyone because he could be required to serve

if one of the jurors became incapacitated. The court also told the

alternate it would call him and advise him once the jury had

33 reached a verdict. After the court excused the incapacitated

juror, and before recalling the alternate, it confirmed, by

telephone, that the alternate had not spoken to anyone about the

case. And, consistent with the rule, post-substitution the jury

was instructed “to begin its deliberations anew”. Forte does not

contend that the rule was not followed.

7.

Forte claims the evidence was insufficient to support his

conviction for possession with intent to distribute cocaine. He

challenges only the sufficiency of the evidence on the “knowledge”

element, claiming the evidence establishes that he only knew money

was being transported.

Forte did not move for a Federal Rule of Criminal Procedure 29

judgment of acquittal. Normally, evidence is sufficient if, after

viewing all evidence in the light most favorable to the verdict,

any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. See, e.g., United States

v. Herrera,

(5th Cir. 2002) (en banc), cert.

denied,

(U.S. 3 March 2003) (No. 02-8782).

However, where, as here, a defendant fails to request a judgment of

acquittal, our review is limited, inter alia, to determining

whether “the record is devoid of evidence pointing to guilt”. Id.

at 885. See also, e.g., Delgado,

(5th Cir.

2001).

34 Forte contends, on the other hand, that he preserved his

sufficiency claim by objecting to the inconsistency of the verdicts

(conviction for possession, acquittal for conspiracy). This

contention is without merit. E.g., United States v. Haney,

(5th Cir. 1970)(sufficiency of evidence not preserved

where no motion for judgment of acquittal). In the alternative,

Forte asserts (for the first time in his reply brief) that, if

indeed there was no acquittal motion, then counsel was ineffective

for failing to so move. Again, generally, we do not review issues

raised for the first time in a reply brief. Even if we did, we

would not review this ineffective assistance of counsel claim on

this direct appeal; among other reasons, it has not been addressed

by the district court. E.g., United States v. Armendariz-Mata,

(5th Cir. 1991), cert. denied,

(1992).

Needless to say, the record is far from devoid of evidence

that Forte knowingly possessed with intent to distribute cocaine.

Three witnesses (Thompson, Robinson, and Gegg) testified that Forte

knew cocaine was being transported.

There was evidence that, inter alia: Thompson was an

experienced drug trafficker who contracted with Forte to recruit

young females to transport cocaine; Thompson explained to Forte

that the cocaine would be hidden in freezer packs to escape

detection by drug-sniffing dogs and x-rays; Forte recruited

Robinson in May 2000 to carry such packs from Panama to Mexico City

35 and then to Reynosa, Texas; and, upon Robinson's return, Forte

explained to her the chemical process to liquify the cocaine for

travel in the frozen freezer packs and then to extract it.

Regarding the count of conviction, there was evidence that,

inter alia: Forte recruited Gegg and Laken to transport freezer

packs of cocaine; although Forte told them they would be

transporting cash, Gegg confronted him by telephone when she

discovered (12 July 2000) she would be transporting cocaine; Forte

directed Gegg to return to New York that night, before the ice

packs melted (recorded conversation); when Forte learned the women

could not return until the next morning, he instructed Gegg to put

the “ice cream” on ice to prevent its melting (recorded

conversation); “ice cream” was a code name for the freezer packs

containing cocaine; Forte was concerned about the possibility of

raising a “red flag” to law enforcement (recorded conversation);

and, when Gegg arrived at the airport, she told Forte she was

concerned that the “ice cream” could melt if she took a taxicab to

his apartment, and he reassured her it would be fine (recorded

conversation).

C.

For sentencing, Forte contends: (1) the management-role

enhancement should have been proven to the jury beyond a reasonable

doubt and was otherwise improper; (2) the safety valve should have

been applied; (3) Forte deserved an “aberrant behavior” downward

36 departure; and (4) he was punished for exercising his right to

trial.

1.

For the leadership enhancement, Forte presents two claims.

For the first time on appeal, he contends that the court erred by

using a preponderance of the evidence standard in making the

assessment. According to Forte, Apprendi,

, requires

the managerial role to be proved to a jury beyond a reasonable

doubt. Next, he contends that the facts did not support the

enhancement; he maintains he did not manage anyone, but merely

passed on Thompson's directions.

The district court adopted the Pre-Sentence Investigation

Report (PSR) and increased Forte’s base offense level by three for

being a manager or supervisor, pursuant to U.S.S.G. § 3B1.1(b). It

provides:

If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

Forte objected to the enhancement.

The Apprendi question is a legal issue, normally reviewed de

novo. See, e.g., United States v. Doggett,

(5th

Cir. 2000), cert. denied,

(2001). Because it was not

raised in district court, it is reviewed only for plain error.

Assignment of a leadership role is reviewed only for clear error.

37 E.g., United States v. Peters,

, 314 (5th Cir. 1990),

cert. denied,

(2002).

a.

Regarding Apprendi, the district court did not err, much less

commit plain error, in applying the preponderance standard rather

than requiring the jury to decide the leadership issue under the

reasonable doubt standard. Factual determinations by the district

court that simply dictate a sentence within the statutorily allowed

range are not called into question by Apprendi. E.g., United

States v. Miranda,

(5th Cir.), cert. denied,

(2001); United States v. Garcia,

(5th

Cir. 2001).

In fact, we have specifically rejected the claim that Apprendi

requires a leadership role to be proven to a jury beyond a

reasonable doubt. United States v. Clinton,

(5th

Cir.), cert. denied,

(2001). Forte contends,

however, that the recent decision in Ring,

, reinforces

his reading of Apprendi and demonstrates our court has been reading

Apprendi too narrowly. Ring, however, simply held (consistent with

our case law) that, where enumerated aggravating factors operate as

the functional equivalent of an element of a greater offense, they

must be proven beyond a reasonable doubt to the jury.

. See also United States v. Matthews,

(5th Cir.

2002) (post-Ring)(key factor in whether element must be proved to

38 jury beyond reasonable doubt is whether it exceeds statutory

maximum penalty).

The leadership assessment did not operate as the functional

equivalent of an element of a greater offense; in other words, it

did not increase the sentence above the statutorily imposed range.

Forte’s sentence is within the statutory maximum of life.

b.

Nor did the district court commit clear error in assessing a

management role. The enhancement requires an activity that

involved five or more persons (Forte, Thompson, Gegg, Laken, and

Flores) and a role as a manager or supervisor (but not as a leader

or organizer, which warrants a greater enhancement). U.S.S.G. §

3B1.1(b).

In determining whether a role was managerial or supervisory,

courts consider

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control exercised over others.

U.S.S.G. § 3B1.1 n.4. The purpose of the assessment is to punish

more severely those who “tend to profit more [from an offense] and

present a greater danger to the public and/or are more likely to

recidivate.” U.S.S.G. § 3B1.1, cmt.

39 Forte instructed the women regarding details; throughout the

offense, Gegg called Forte for instructions. For example, Forte

told the women to return to New York from Houston (12 July); when

that was not possible, he instructed them to put the “ice cream” on

ice. He also instructed them to exchange their tickets for a later

flight on the same airline rather than fly on another carrier, in

order to not raise suspicions.

Forte was a major participant, who worked closely with

Thompson to coordinate the pick up, transportation, and delivery of

cocaine. Thompson’s cellular telephone records indicate 22

telephone calls between him and Forte on the day before the arrest.

Forte also recruited the women, arranged their itineraries, and

gave them directions (e.g., where to go when they arrived in

Harlingen). He kept in touch with them by telephone throughout the

day, providing instructions and advice.

Regarding the fruits of the crime, Thompson agreed to pay

Forte $10,000 on a per trip basis to recruit the female couriers.

Forte was responsible for paying his couriers out of that amount.

On 5 July 2000, Forte agreed to pay Gegg and Laken $1000 each for

the Texas to New York trip. Thompson, not Forte, reimbursed the

women for their travel expenses. Thus, Forte’s net share was

$8000, compared to $1000 for each woman.

Finally, Forte and at least four others transported

approximately 13 kilograms of cocaine from Harlingen to Newark.

40 The entire operation took several days to execute and involved

various hotels and airports in Harlingen, Houston, and Newark.

In sum, it is true that Thompson exercised more of a

leadership role than Forte in organizing the offense. But, Forte’s

enhancement was for management, not leadership.

2.

Forte maintains the court failed to apply the safety valve

guideline, U.S.S.G. § 5C1.2, because it improperly assessed him a

management role. Forte did not object to not applying the

reduction. Therefore, although whether to apply § 5C1.2 is

normally reviewed for clear error, United States v. Flanagan,

, here we review only for plain error.

To be eligible for the safety valve provision of

(f), adopted verbatim in U.S.S.G. § 5C1.2, a defendant must

meet five requirements: (1) he did not have more than one criminal

history point; (2) he did not use, or threaten to use, violence or

possess a firearm; (3) the offense did not result in death or

serious bodily injury; (4) he was not a manager or supervisor; and

(5) he truthfully provided all information concerning the offense

to the Government before the sentencing hearing.

(f); U.S.S.G. § 5C1.2.

Because Forte does not qualify for the safety valve reduction,

there was no error, much less plain error. As discussed supra,

Forte was properly assessed a managerial role; therefore, he does

41 not satisfy the fourth factor. We need not address whether he

provided information to the Government.

3.

According to Forte, the district court erred by denying a

downward departure for aberrant behavior, based upon acquitted-

count conduct. He claims the court relied improperly on evidence

pertaining to the conspiracy count, for which he was acquitted. At

the sentencing hearing, the district court ruled:

[Forte] was involved in a sophisticated drug distribution scheme that got drugs from Columbia, to Mexico, to the United States, to New York and Canada. He was an integral manager of that scheme, and he did it for the money over quite a long period of time. So there was not an incident of aberrant behavior. He was doing it for the money. He was a professional drug dealer in it for the money.

Forte did not object to the now-claimed reliance on acquitted-count

conduct as a basis for the downward departure denial.

The district court did not erroneously believe it lacked the

authority to depart. Instead, it refused to do so. Therefore, we

lack jurisdiction to review this issue.

A defendant’s general dissatisfaction with his sentencing range provides no ground for review of a district court’s refusal to grant a downward departure. We have jurisdiction only if the refusal was in violation of the law. A refusal to depart downward is a violation of the law only if the district court’s refusal is based on the mistaken belief that the court lacked discretion to depart.

42 United States v. Garay,

(5th Cir. 2000), cert.

denied,

(2001) (internal citations and footnotes

omitted).

4.

Forte's final contention is that the district court improperly

sentenced him, within the guidelines’ range, more harshly than Gegg

and Laken because he exercised his right to a trial and declined to

cooperate. He asserts that the district court indicated its

intention to depart downward based on disproportionate sentences

given Gegg and Laken (18 months each), but ultimately declined to

do so.

Before pronouncing sentence, the district court considered

departing downward from the bottom of the guidelines range (168 to

210 months) to the ten-year mandatory minimum. Forte contended:

he was a good person gone astray; he tutored an underprivileged

youth; he received an extraordinary education; he used his musical

career to promote morality; and he had no knowledge of, or control

over, the purity of the cocaine. The Government objected to a

downward departure, and the district judge held that none of the

points Forte had raised justified one.

Next, the district judge expressed concern about the disparity

between the proposed sentence for Forte and those given Gegg and

Laken, noting: “Of course, that disparity is because of a number

of factors: his role in the offense, [and] the fact that they pled

43 guilty and agreed to cooperate”. (Emphasis added.) The court then

asked the Government to explain what additional deterrent effect

would be achieved, or penological interest served, by the

additional 48 months Forte would serve at 168 months as opposed to

120 months (the mandatory minimum). The Government emphasized

Forte’s decision to go to trial rather than cooperate. The

district court then declined to grant the downward departure.

As discussed supra, we have no jurisdiction to review a

district court’s decision not to depart from the sentencing

guidelines, unless that court believed it lacked authority to do

so. Regarding a departure on the basis of disparity, the district

judge did not believe he could not depart; instead, he considered

doing so and decided it would not be appropriate. Accordingly, we

lack jurisdiction to review that decision.

III.

For the foregoing reasons, that portion of Forte's appeal

concerning denial of a downward departure is DISMISSED; the rulings

contested in the balance of the appeal are AFFIRMED. Accordingly,

Forte's conviction and sentence are AFFIRMED.

44