United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 14, 2015 Decided June 24, 2016

No. 10-3083

UNITED STATES OF AMERICA,

APPELLEE

v.

JUAN JOSE MARTINEZ VEGA,

ERMINSO CUEVAS CABRERA,

APPELLANTS

Consolidated with 10-3084

Appeals from the United States District Court

for the District of Columbia

(No. 1:04-cr-00446-51)

(No. 1:04-cr-00446-49)

Richard K. Gilbert, appointed by the court, argued the 

cause for appellant Martinez Vega. Manuel J. Retureta and 

Gary M. Sidell, appointed by the court, argued the cause for 

appellant Cuevas. With them on the briefs was Kristen Grim 

Hughes.

Michael A. Levy, Assistant U.S. Attorney, argued the 

cause for appellee. On the brief were Ronald C. Machen Jr., 

U.S. Attorney at the time the brief was filed, and Randall W. 
2

Jackson and Brian A. Jacobs, Assistant U.S. Attorneys. 

Elizabeth Trosman, Assistant U.S. Attorney, entered an 

appearance.

Before: BROWN and MILLETT, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

PER CURIAM: Juan Jose Martinez Vega and Erminso 

Cuevas Cabrera were indicted with more than 50 other 

individuals for conspiring to commit crimes associated with 

the importation, manufacture, and distribution of cocaine into 

the United States. To date, only Martinez Vega, Cuevas, and 

one other have stood trial. See United States v. Garcia, 757 

F.3d 315 (D.C. Cir. 2014). 

The indicted individuals were allegedly affiliated with 

the Fuerzas Armadas Revolucionarias de Colombia 

(“FARC”), a “left-wing guerilla group that has waged a 

violent insurgency against Colombia’s government for much 

of the last fifty years.” Id. at 316. Though it initially 

eschewed the drug trade as counterrevolutionary, the FARC

embraced the manufacture and exportation of cocaine in the 

early 1980s as a lucrative means to fund its increasingly 

ambitious military objectives. John Otis, The FARC and 

Colombia’s Illegal Drug Trade, WILSON CENTER (Nov. 

2014), at 3, https://www.wilsoncenter.org/sites/default/files/

Otis_FARCDrugTrade2014.pdf. By the 1990s and early 

2000s, after the breakup of the famous Medellín and Cali 

cartels, the FARC began to consolidate its control over the 

coca fields and cocaine production. Id. at 4. 

Martinez Vega and Cuevas allegedly occupied different 

roles within the cocaine trade. Martinez Vega’s role primarily 

consisted of exporting cocaine and importing arms. 

Throughout his association with the FARC, he was allegedly 
3

responsible for exporting at least 11,000 kilograms of cocaine 

and with supplying the FARC with 250 tons of ammunition, 

explosives, and weapons. Cuevas, on the other hand, 

allegedly operated a large cocaine laboratory that produced 

thousands of kilograms of cocaine paste each week. In 

addition to supervising that operation, Cuevas allegedly met 

with FARC officials on several occasions to oversee the 

shipment of coca base to his laboratory. 

After their capture and extradition to the United States, 

Martinez Vega and Cuevas were tried for and convicted of 

violating Title 21 of the United States Code, Sections 812, 

952, 959, 960, and 963. Taken together, these sections 

provide for the punishment of any person who knowingly or 

intentionally conspires to import, manufacture, or distribute 

five kilograms or more of cocaine into the United States. The 

district court then sentenced Martinez Vega and Cuevas to 

330 and 348 months’ imprisonment, respectively. These

defendants come before us now appealing their convictions 

and sentences.

Three categories of issues are raised in this appeal: the 

joint issues, the Martinez Vega-specific issues, and the 

Cuevas-specific issues. Both Martinez Vega and Cuevas 

challenge the sufficiency of the evidence, the mens rea jury 

instructions, and the district court’s denial of their motions 

alleging prosecutorial misconduct. Martinez Vega challenges 

several evidentiary rulings pertaining to identification 

evidence, as well as the application of a “managerial” 

sentencing enhancement. Finally, Cuevas challenges the 

admission of certain evidence, the adequacy of the district 

court’s curative instruction to the jury regarding stricken 

testimony, the district court’s refusal to permit crossexamination about witnesses wearing ankle monitoring 

devices, and its application of certain sentencing 
4

enhancements. Detailed discussions of the facts, evidence, 

and standards of review will be set forth as necessary to 

address each issue Defendants raise. 

I. Joint Issues

Martinez Vega and Cuevas together raise three arguments 

for vacating their convictions: (i) the mens rea evidence was 

insufficient; (ii) the mens rea jury instructions were 

misleading; and (iii) the Government committed prejudicial 

prosecutorial misconduct. We address each in turn. 

A. Sufficiency of Evidence

Defendants argue the evidence at trial was insufficient to 

prove the mens rea element of their charged offense; that they 

knew or intended the cocaine would end up in the United 

States. See 21 U.S.C. § 952(a); id. § 959(a); id. § 960(a)(1), 

(a)(3). In their view, not only did the Government fail to put 

on any direct evidence of mens rea, the proffered 

circumstantial evidence doesn’t justify the inference that 

either of them knew the destination of the cocaine. 

Challenging a jury verdict for insufficient evidence 

carries with it an “exceedingly heavy burden.” United States 

v. Booker, 436 F.3d 238, 241 (D.C. Cir. 2006); see also

United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009) 

(describing the burden as a “nearly insurmountable hurdle”).

To prevail, Defendants must convince the court that no 

“rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” United States v. 

Stadd, 636 F.3d 630, 636 (D.C. Cir. 2011). We review

sufficiency-of-the-evidence claims “in the light most 

favorable to the government, drawing no distinction between 

direct and circumstantial evidence, and giving full play to the 
5

right of the jury to determine credibility, weigh the evidence 

and draw justifiable inferences of fact.” United States v. 

Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005). 

We conclude the jury’s mens rea determinations were 

justified by sufficient evidence. The Government

demonstrated several facts from which a rational juror could 

reasonably infer intent or knowledge that the cocaine would 

end up in the United States. First, it demonstrated that at least

half of the cocaine produced in Colombia is exported to the 

United States, establishing a substantial probability that at 

least some of the 11,000 kilograms of cocaine Martinez Vega

trafficked or the thousands of kilograms of cocaine paste 

Cuevas manufactured each week was headed to the United 

States. Second, several witnesses confirmed that, among the 

FARC rank-and-file, it was a widespread and generally 

known fact that the cocaine they handled was destined for the 

United States. Maria Santiago and Hernan Santiago each 

testified that the destination of these drugs (the United States) 

was a topic of discussion among Cuevas’s subordinates at the 

laboratory. And Alexis Perez offered similar testimony with 

respect to Martinez Vega, that it was “something normal to 

hear the comments that the coke was coming to the United 

States because it was said that it is the country that most 

consumes it.” These testimonies justify an inference that 

those within both Martinez Vega’s and Cuevas’s operations 

were generally aware of the intended destination. Third, 

Martinez Vega and Cuevas had high-level roles in their 

association with the FARC, which, in conjunction with the 

previous point, justifies an inference that, given their rank

within the organization, they were even more likely to know 

the destination than their subordinates. Martinez Vega was a 

leader within the 16th Front of the FARC—he was an 

important enough leader that the FARC provided security as 

he conducted his operations. Cuevas was the “general 
6

administrator” of a large cocaine laboratory where he 

supervised about 80 workers and met with FARC officials to 

coordinate product deliveries. 

These data points justify the jury’s inferences that both 

Martinez Vega and Cuevas knew or intended the drugs would 

end up in the United States. This is not a close question. In 

fact, in United States v. Martinez, this court upheld a

conviction for conspiracy to import cocaine into the United 

States against an insufficiency challenge based on evidence

that closely mirrors the evidence in this case. 476 F.3d 961, 

963 (D.C. Cir. 2007). First, a former DEA Agent testified,

based on his extensive experience, that “almost every drug 

operation that transports Colombian cocaine by land through 

Central America intends to import the cocaine into the United 

States.” Id. at 969. Second, there was direct evidence that 

“many of the lower-level individuals involved with the . . .

shipment of cocaine knew [it] was headed to the United 

States.” Id. And third, Martinez “supervised many key 

aspects of the international transportation of this massive 

shipment of cocaine.” Id. at 968. 

In response, Defendants stress a lack of direct evidence

of knowledge or intent, but that emphasis is unavailing. Our

review of insufficiency claims treats all evidence—direct or 

circumstantial—the same. See Dykes, 406 F.3d at 721. 

Moreover, this argument carries even less weight considering 

their insufficiency claim alleges a lack of direct mens rea

evidence. In “most cases in which the defendant’s state of 

mind is at issue, it may be near impossible to establish the 

requisite mens rea through direct evidence,” and therefore 

proof must be inferred from circumstantial evidence instead. 

United States v. Schaffer, 183 F.3d 833, 843 (D.C. Cir. 1999). 

As we have shown, the proffered circumstantial evidence is 
7

sufficient to support the jury’s guilty verdicts, and 

accordingly, we reject Defendants’ insufficiency claim.

B. Jury Instructions

Martinez Vega and Cuevas also challenge the district 

court’s jury instructions. Specifically, they claim the 

instructions failed to adequately convey that Defendants 

“personally intended the cocaine be imported into the United 

States or personally knew the cocaine would be imported into 

the United States.” Defendants Br. 41. Defendants’ argument 

focuses on the district court’s use of a “shorthand” description 

of the mens rea requirement. In their view, the instructions 

were “highly ambiguous” and “widen[ed] the meaning of 

conspiracy” by “minimiz[ing] a defendant’s necessary 

involvement.” Id. at 43. 

When reviewing a challenge to jury instructions, “[t]he 

pertinent question is whether, taken as a whole, the 

instructions accurately state the governing law and provide 

the jury with sufficient understanding of those issues and 

applicable standards.” United States v. Wilson, 605 F.3d 985, 

1018 (D.C. Cir. 2010). While the propriety of a submitted 

jury instruction is reviewed de novo, “the choice of language 

to be used in a particular instruction . . . is reviewed only for 

abuse of discretion.” Joy v. Bell Helicopter Textron, Inc., 999 

F.2d 549, 556 (D.C. Cir. 1993). 

The district court’s instructions began with a recitation 

of the charge, which included an accurate description of the 

“knowing or intending” mens rea requirement. Then, the 

court broke the Government’s burden into two parts. First, 

the Government was required to demonstrate an “agreement 

to import . . . or to manufacture and distribute five kilograms 

or more of cocaine knowing and intending that it would be 
8

imported into the United States.” Second, the Government 

was required to demonstrate that Martinez Vega and Cuevas 

“intentionally joined in that agreement.” Explaining further, 

the district court stated the Government must prove “a 

defendant participated in the conspiracy with knowledge of its

unlawful purposes, and with an intent to aid in the 

accomplishment of its unlawful objectives.” Following this 

robust description of the Government’s burden, the district 

court concluded with a concise and accurate summary of the 

mens rea requirement: 

Thus with respect to count one, if you find beyond a 

reasonable doubt that the defendant conspired to 

import any amount of cocaine into the United 

States, or to manufacture any amount of cocaine 

with the intent or knowledge that it would later be 

imported to the United States, then you should find 

the defendant guilty. If, however, you find that the 

government has not proven beyond a reasonable 

doubt that the defendant conspired to import any 

amount of cocaine into the United States or to 

manufacture and distribute any amount of cocaine 

with the intent or knowledge that it would later be 

imported to the United States, then you should 

[find] the defendant not guilty. 

On multiple occasions throughout the instructions, the 

district court accurately and clearly explained the mens rea

requirement. And as we have stated, “[j]ury instructions are 

proper if, when viewed as a whole, they fairly present the 

applicable legal principles and standards.” Czekalski v. 

LaHood, 589 F.3d 449, 453 (D.C. Cir. 2009).

Defendants’ concern centers on the district court’s 

shorthand description of the mens rea requirement, “that a 
9

defendant participated in the conspiracy with knowledge of its 

unlawful purposes, and with an intent to aid in the 

accomplishment of its unlawful objectives.” This instruction, 

however, was immediately preceded by a description of what 

the conspiracy’s unlawful purposes and unlawful objectives 

were—the importation, manufacture, and distribution of 

cocaine with knowledge or intent that it end up in the United 

States. That mens rea language is cumbersome, and the 

district court’s decision to use a shorthand method of referring 

to it did not render the mens rea instruction ambiguous, 

especially considering that this shorthand language is 

bookended by two unmistakably clear and entirely accurate 

descriptions of the requirement. Jury instructions “must be 

evaluated not in isolation but in the context of the entire 

charge.” Jones v. United States, 527 U.S. 373, 391 (1999). 

Taken as a whole, these instructions clearly informed the 

jurors of the precise nature of the mens rea question before 

them. Because the mens rea jury instructions unambiguously 

and accurately reflected the state of the law, we hold the 

district court did not err.

C. Prosecutorial Misconduct

Defendants allege the prosecutor improperly (i) appealed 

to the jury to act as the “community conscience”; (ii) 

expressed personal opinion regarding Defendants’ guilt; and 

(iii) discussed the court’s overruling of a defense objection 

during closing arguments. Each of these prosecutorial 

misconduct claims fail. We address each in turn. 

First, Defendants contend the prosecutor’s references to 

America’s drug culture and related problems in its closing 

summation were unfairly “designed to inflame the passions or 

prejudices” of jurors. Defendants Br. 47 (quoting United 

States v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000)). 
10

Specifically, the prosecutor told the jury that “a lot of the 

problems here in Washington D.C., in New York, in Detroit 

where I grew up, can be traced right back to [drug 

trafficking].” In Defendants’ view, the prosecutor perceived 

the jury “might be [un]interested in Colombia’s drug 

problems,” Defendants Br. 48, which led him to improperly 

tie the Colombian drug trade to the American drug problem, 

inviting the jury to act as the “community conscience.” 

 

To be sure, a suggestion that the jury act as the 

“community conscience” can constitute error. In United 

States v. Hawkins, our circuit warned it is improper to 

“substitute emotion for evidence by equating, directly or by 

innuendo, a verdict of guilty to a blow against the drug 

problem.” 595 F.2d 751, 754 (D.C. Cir. 1978); see also 

United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)

(holding an appeal to the jury to act as the community 

conscience is improper when it is “calculated to incite the 

passions and prejudices of the jurors”). This caution derives 

from Viereck v. United States, 318 U.S. 236 (1943), in which 

the Supreme Court held a prosecutor’s appeal to jurors’ 

patriotism during World War II was “wholly irrelevant to any 

facts or issues in the case, the purpose and effect of which 

could only have been to arouse passion and prejudice.” Id. at 

247. 

But, critical to our disposition here, the Hawkins panel 

held that such erroneous appeals may not warrant reversal “in 

light of the relative strength of the case against the accused.”

595 F.2d at 754. Because “[t]he Government’s case against 

appellant was strong indeed,” and the “instructions given by 

the trial court sufficiently diluted any prejudice,” the panel 

held it was not “an occasion on which reversal would be 

appropriate.” Id. at 755; see also United States v. Barnett, 

No. 97-3091, 1998 WL 203122, at *1 (D.C. Cir. April 8, 
11

1998) (per curiam) (“[A]ppealing to the jury to ‘do the right 

thing’ is not clearly erroneous when, as here, the Government 

couples its argument that the jury should ‘do the right thing’ 

with specific references to the evidence in the record. . . . 

Furthermore, the evidence presented at trial was sufficiently 

probative of Barnett's guilt that any error that might have 

occurred was not prejudicial.”).

As it was in Hawkins, so it is here. Even if the prosecutor 

erred in connecting Martinez Vega’s and Cuevas’s charges to 

America’s drug problems, the error was harmless because the 

case against the Defendants was “strong indeed.” Hawkins, 

595 F.2d at 755. In light of that strong case, and also given 

the district court’s instruction that “the statements and the 

arguments of the lawyers are not evidence,” the prosecutor’s 

appeal to the jury to act as the “community conscience” does 

not warrant reversal. 

Second, Defendants contend the prosecutor improperly 

interjected personal beliefs into his closing statement. “When 

a prosecutor gives his personal opinion on the credibility of 

witnesses or the defendant’s guilt . . . ‘such comments can . . . 

jeopardize the defendant’s right to be tried solely on the basis 

of the evidence presented to the jury.’” United States v. 

Hampton, 718 F.3d 978, 983 (D.C. Cir. 2013) (quoting United 

States v. Young, 470 U.S. 1, 18 (1985)). At various points 

throughout the prosecutor’s summation, he spoke in the “first 

person singular,” making such statements as, “I think the 

evidence did prove that . . .”; “I think it is clear . . .”; “But if 

you consider the recordings, and I think you should, it 

becomes obvious . . .”; “I don’t know if I buy that . . .”; “I’m 

not sure I buy it. I don’t think you should either . . .”; and 

“I’m not even sure what to make of this argument.” 

Defendants argue these statements violate the Supreme 
12

Court’s injunction against prosecutors “interjecting personal 

beliefs.” See Young, 470 U.S. at 7–8. 

Two of our sister circuits have directly confronted the 

question whether speaking in the first person singular is a

ground for a new trial. See United States v. Nersesian, 824 

F.2d 1294, 1328–29 (2d Cir. 1987); United States v. Carleo, 

576 F.2d 846, 851–52 (10th Cir. 1978). Reviewing similar 

statements as found here, the Nersesian court “stress[ed] that 

it is a poor practice, one which this court has repeatedly 

admonished prosecutors to avoid.” 824 F.2d at 1328. That 

said, and despite recognizing “[i]t is well settled that it is 

improper for a prosecutor to interject personal beliefs into a 

summation,” the court nonetheless declined to reverse. Id. 

Viewing the summation “as a whole,” the Second Circuit 

examined whether the improper language “amount[ed] to 

unacceptable vouching.” Id. Several considerations 

prompted the court to conclude it did not. For one, the 

“offending conduct was . . . limited to a relatively small 

portion of an overall lengthy summation.” Id. Moreover, the 

district court “instruct[ed] the jury that the lawyer’s 

statements were not evidence,” and defense counsel made no 

“contemporaneous objections.” Id. Also, the court concluded 

“it can fairly be said that appellants’ convictions were the 

result of the jury’s assessment of the evidence, not the result 

of improper argument by the prosecutor.” Id.; see also United 

States v. Restrepo, 547 F. App’x 34, 42 (2d Cir. 2013) 

(warning prosecutors to avoid first-person formulations but 

ultimately concluding “there [was] no likelihood that the jury 

was misled about the argument the prosecutor was making”); 

but see United States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 

1996) (concluding “not all uses of the pronoun ‘I’ are 

improper” such as “I suggest that,” which “shie[s] away from 

an outright endorsement”). In Carleo, the Tenth Circuit 

charted a similar path. 576 F.2d at 851–52. Deeming 
13

improper the prosecutor’s first person formulation, the court 

nonetheless determined the prosecutor “was neither 

personally vouching for the credibility of the government 

witness nor personally attacking the credibility of the 

defendant,” nor was he “attempting to convey to the jury that 

he somehow possessed information . . . to which the jury was 

not privy.” Id. at 852. In light of these conclusions, the court 

held the trial court did not abuse its discretion in denying a 

motion for a new trial. See id.

We join our sister circuits in admonishing prosecutors to 

avoid the “use of the personal pronoun ‘I.’” Nersesian, 824 

F.2d at 1328. It is poor practice and threatens the defendant’s 

right to a fair trial. But as in Nersesian, Restrepo, and Carleo, 

the prosecutor’s remarks here do not constitute reversible 

error. As noted above, the district court instructed the jury 

that the “statements and the arguments of the lawyers are not 

evidence,” and the few offending statements were contained 

within a very lengthy closing summation of the Government’s 

strong case. While the prosecutor should have avoided the 

personal pronoun, had he replaced “I” with slightly different 

phrases like “the evidence shows” or “the record is clear 

that,” he could have communicated a nearly identical 

sentiment without any impropriety.1

 Cf. United States v. 

Eltayib, 88 F.3d 157, 172 (2d Cir. 1996) (“The problem with 

 1 In other words, slight stylistic cures can head off objections like 

this at the pass. It is important to the integrity of the jury trial 

process to avoid vouching or interjecting personal beliefs, but there 

are plenty of proper ways to communicate what the prosecutor 

attempted to say here. For example, compare the following 

phrases. The prosecutor said: “I think the evidence did prove that . 

. . .” An error-free way to say the same thing: “The evidence 

proves . . . .” The prosecutor said, “I don’t know if I buy that . . .”, 

but he could have said, “What you heard at trial casts doubt on that 

. . . .”
14

a prosecutor’s use of the pronoun ‘I’ is that it ‘tends to make 

an issue of [the prosecutor’s] own credibility, or to imply the 

existence of extraneous proof.”). Moreover, Defendants’ 

counsel also failed to object to these statements at trial, so our 

appellate touch is even lighter here than it otherwise might 

have been. See United States v. Olano, 507 U.S. 725, 732 

(1993). Accordingly, we conclude the jury’s guilty verdict 

was a product of the Government’s strong case against 

Martinez Vega and Cuevas, not the prosecutors stray 

improper remarks. 

Third, Defendants argue that a PowerPoint slide 

containing a reference to an overruled defense objection 

constituted prosecutorial misconduct. Even assuming the 

reference was error, Defendants fail to present any theory 

whatsoever as to why it prejudiced them. Even their reply 

brief contains no explanation, despite the Government’s 

argument pointing out this critical defect. Reply Br. at 24. 

(The entire response: “The Government offers no theory to 

support presentation of a PowerPoint slide depicting the 

overruling of a defense objection to the jury. Defendants 

submit that none exists, especially in light of the district 

court’s midtrial instruction.”). Without a showing of 

“substantial prejudice,” an act of prosecutorial misconduct 

cannot constitute reversible error. See United States v. Small, 

74 F.3d 1276, 1280 (D.C. Cir. 1996). Defendants’ failure to 

show any prejudice, let alone substantial prejudice, is fatal to 

their prosecutorial misconduct claim. 

II. Issues Raised by Martinez Vega

Martinez Vega individually challenges several of the 

district court’s rulings pertaining to evidence identifying his 

involvement in criminal activities. According to Martinez 

Vega, such evidence was crucial to his eventual conviction 
15

because the Government’s case against him relied primarily 

on accepting both that a person nicknamed “Chiguiro” was a 

significant member of the FARC’s 16th Front operation, and 

that Martinez Vega was that individual.2

 Specifically, 

Martinez Vega argues that the district court committed 

reversible error in failing (i) to compel the Government to 

correct the false testimony of DEA Intelligence Research 

Specialist Francisco Garrido; (ii) to give “missing-evidence” 

instructions to the jury regarding photo arrays that had been 

used with certain witnesses; (iii) to sanction the Government

for its failure to timely disclose a photograph identifying 

another man as “Chiguiro”; and (iv) to admit a prior 

inconsistent statement by government witness Ignacio 

Gonzales Jaramillo. Martinez Vega also appeals the district 

court’s application of a “managerial role” sentencing 

enhancement. We reject all of the evidentiary claims, but 

vacate and remand Martinez Vega’s sentence to the district 

court for further consideration.

A. Failure to Correct False Testimony

Former FARC member and prosecution witness Viviana 

Ortiz testified on cross-examination that, during an interview 

at the U.S. Embassy in Bogotá, she was shown some 

photographs, one of which she identified as Martinez Vega by 

the nickname “Chiguiro.” Defense counsel objected that the 

prosecution had not previously disclosed Ortiz’s photographic 

identification of Martinez Vega. The prosecutor disclaimed 

any prior knowledge of the identification, and the district 

court instructed the Government to “check with your records 

and your agents to see if . . . somebody showed her a photo, if 

you have a record of it.” S.A. 189–90. The following 

 2 “Chiguiro” is another name for a capybara, “an extremely large, 

semi-aquatic rodent, indigenous to South America.” Gov’t Br. 4. 
16

morning, the prosecutor reported to the court his “suspicion” 

that Ortiz had been shown photographs by an agent of the 

Drug Enforcement Agency, but the Government “[didn’t] 

have a record of that.” Id. at 212.

During the defense case, Martinez Vega called Francisco 

Garrido, a DEA Intelligence Research Specialist, and 

questioned him about his interviews in Bogotá of former 

FARC members, including Ortiz. On re-direct, defense 

counsel confirmed with Garrido that Ortiz had identified 

Martinez Vega as “Chiguiro.” When asked, “But you did not 

actually show her photographs of Chiguiro, did you?” Garrido 

responded, “I believe I did. I had a copy of the photo array 

depicting your client.” S.A. 539.

Martinez Vega’s counsel objected that Garrido’s 

testimony was inconsistent with the Government’s prior 

representation that “they did not have anybody who could 

confirm or deny whether Ms. Ort[i]z was shown some 

identifications [sic].” S.A. 539–40. The Government denied 

any inconsistency, differentiating between a lack of records

about the identification and Garrido’s own recollection of the 

events. The court stated that Martinez Vega could ask 

additional questions if he wished to probe Garrido’s memory. 

During continued questioning by defense counsel, 

Garrido confirmed that he had shown Ortiz a photo array and 

claimed that the photographs “became part of the case folder.” 

S.A. 544–46. At sidebar, defense counsel asked for the 

photographs shown to Ortiz. The Government responded that 

Garrido appeared to be testifying to “his belief,” but that 

“there was only one photo array that was ever created” 

including Martinez Vega’s picture, and Garrido likely “does 

not have any photo array that is marked by Vivian[a] Ort[i]z, 
17

or that he recorded as being a specific one that she identified.” 

Id. at 548.3

In a subsequent hearing outside the presence of the jury, 

the district court allowed both sides to continue questioning 

Garrido about the issue. Garrido confirmed that he created 

only one photo array relating to Martinez Vega, but denied 

any knowledge as to whether anyone had Ortiz “mark a photo 

array.” S.A. 552. He testified that he did not record or make 

any notes of Ortiz specifically marking or identifying any 

photograph in the array. Garrido also admitted that he had 

“no independent recollection” of whether or not Ortiz was 

actually shown a photo array; his belief was based on the fact 

that he had shown the photo array to “numerous people” 

during the investigation. Id. at 553.

The next day, Martinez Vega moved to dismiss the case

due to the Government’s failure to correct Garrido’s 

testimony before the jury. The court denied the motion from 

the bench, finding that the Government was not “deliberately 

withholding information that’s false or allowing false 

testimony to go forward uncorrected.” J.A. 1675. Martinez 

Vega raised the issue again in his motion for a new trial. The 

court once more denied the request, reasoning that, even if 

Garrido had testified falsely about having shown Ortiz a 

photo array, such testimony was immaterial and could not 

have affected the jury’s judgment because there was sufficient 

other evidence at trial regarding Martinez Vega’s identity. 

A claim that the Government violated the Fifth 

Amendment by knowingly failing to correct false testimony is 

reviewed de novo. See United States v. Mejia, 597 F.3d 1329, 

1338 (D.C. Cir. 2010). The district court’s denials of motions 

for a mistrial and for a new trial are reviewed for abuse of 

 3 The “one” acknowledged photo array was previously admitted. 
18

discretion. See United States v. Moore, 651 F.3d 30, 50 (D.C. 

Cir. 2011) (mistrial); United States v. Becton, 601 F.3d 588, 

594 (D.C. Cir. 2010) (new trial). 

Under Napue v. Illinois, 360 U.S. 264 (1959), the 

Government “may not knowingly use false evidence” or 

“allow[] it to go uncorrected when it appears,” id. at 269. 

“This rule applies both when the testimony relates directly to 

an essential element of the government’s proof and when it 

affects the credibility of a crucial witness.” United States v. 

Iverson, 637 F.2d 799, 801 (D.C. Cir. 1980), modified, 648 

F.2d 737 (D.C. Cir. 1981). “The principle that a State may 

not knowingly use false evidence, including false testimony, 

to obtain a tainted conviction . . . does not cease to apply 

merely because the false testimony goes only to the credibility 

of the witness.” Napue, 360 U.S. at 269.

Yet even if the prosecution either sponsored or failed to 

correct false testimony, the grant of a new trial is not 

automatic. See United States v. Burch, 156 F.3d 1315, 1329 

(D.C. Cir. 1998); Giglio v. United States, 405 U.S. 150, 154 

(1972). Rather, “a reviewing court must determine whether 

‘the false testimony could in any reasonable likelihood have 

affected the judgment of the jury.’” Burch, 156 F.3d at 1329 

(quoting Giglio, 405 U.S. at 154). Put another way, “the fact 

that testimony is perjured is considered material unless failure 

to disclose it would be harmless beyond a reasonable doubt.” 

United States v. Bagley, 473 U.S. 667, 680 (1985).4

As a preliminary matter, the Government’s effort to 

portray Garrido’s testimony as merely an “equivocal” 

 4 This standard is equivalent to the harmless-error standard for 

constitutional error under Chapman v. California, 386 U.S. 18 

(1978). See Bagley, 473 U.S. at 679 n.9.
19

expression of his “belief” that he had shown Ortiz 

photographs of “Chiguiro” (Gov’t Br. 48–49) strains credulity 

and is heavily dependent on selectively parsing and 

rearranging Garrido’s actual words. While Garrido did 

initially say he “believe[d]” he had shown “photographs of 

Chiguiro” to Ortiz, S.A. 539, he then proceeded to describe a 

specific photo array, whether it included certain individuals, 

and what he did with the array afterwards. Similarly, when 

read in context, Garrido’s affirmative response to the question 

whether he had shown Ortiz “any photographs” was not an 

answer to a “broad and general question” about any random 

assortment of pictures as the Government suggests. Gov’t Br. 

49. Since Garrido had just testified about a photo array 

depicting Martinez Vega and Ortiz’s identification of 

Martinez Vega as “Chiguiro,” both defense counsel’s question 

(“Now let me then ask you about the identification you told us 

about. . . . When you met Ms. Ort[i]z on November 19, 2008, 

did you show her any photographs?” S.A. 544–45) (emphasis 

added), and Garrido’s answer (“Yes.” Id. at 545), by their 

plain terms referred to the specific photographs in the 

aforementioned photo array.5

 

Disappointingly, the Government knew or should have 

known that this testimony was suspect. The Government had 

 5

 Moreover, the Government is wrong to assert that the district 

court found that Garrido did not testify falsely about his use of the 

photo array. To the contrary, the district court acknowledged the 

“legitimate” questions regarding the credibility of Garrido’s 

testimony, but ruled that the Government’s conduct did not warrant 

dismissal in light of the “multiple identifications of Mr. Martinez 

Vega by other individuals” at trial. S.A. 922–23. Later, in ruling 

on Martinez Vega’s motion for a new trial, the court expressly 

declined to make any determination as to whether Garrido’s 

testimony was false, finding that it was not material even if false. 
20

previously disclaimed any prior knowledge of a photo-array 

identification by Ortiz and reported to the court that it had no 

record of anyone showing Ortiz photographs. The 

Government thus should have been on full alert as soon as 

Garrido started testifying to a different story. The hearing 

conducted by the district court, outside of the jury’s presence, 

spotlighted Garrido’s inaccuracies.6

 Hair-splitting 

distinctions in degree of falsity and inaccuracy should not be 

the currency of federal prosecutors. See Napue, 360 U.S. at 

269 (“[A]lthough not soliciting false evidence,” the 

government is bound to correct it “when it appears.”).

The only thing that saves the Government is that 

Garrido’s testimony could not “in any reasonable likelihood 

have affected the judgment of the jury.” Napue, 360 U.S. at 

271. Martinez Vega argues that permitting Garrido’s 

testimony to remain uncorrected not only bolstered the 

substantive testimony of Ortiz, but also reinforced the overall 

credibility of both witnesses. That is, a revelation that 

Garrido’s testimony was false might have cast doubt on the 

general reliability of both Ortiz and Garrido, particularly 

given other inconsistencies in their testimonies. And that in 

turn might have colored the jury’s acceptance or rejection of 

Garrido’s and Ortiz’s testimony on other matters. 

 6

 See S.A. 553 (Q: “So, when you testified that you believed that 

the photo array . . . that you believed was shown to Ms. Ortiz was 

in the case file, can you explain what you were talking about?” A: 

“I thought that the photo array—that she was shown a photo array 

and that she had markings, but she didn’t [sic].” Q: “Well, can you 

. . . state with certainty that Ms. Ortiz was actually shown a photo 

array?” A: “I don’t have an independent recollection whether she 

was or wasn’t. I really don’t remember.”); id. at 555 (Q: “So, as 

you sit here today, did you or did you not show Viviana Ortiz a 

photo array?” A: “As I sit here today, I don’t have a recollection 

whether I did or I did not.”).
21

That line of reasoning does not hold up given the record 

in this case. First, Ortiz’s identification of Martinez Vega 

during the alleged photo array presentation was of dubious 

relevance, given that Ortiz had repeatedly identified Martinez 

Vega and connected him to the nickname “Chiguiro” earlier 

in the trial. Indeed, she identified him by that moniker at the 

very start of her testimony, and again while being shown 

video footage of guerillas crossing a river “with Chiguiro.” 

Importantly, Ortiz based those in-court identifications on her 

frequent, personal, and direct observations of Martinez Vega 

working with the FARC. She recounted, for example, 

providing security for Martinez Vega while he and his men 

transported weapons and cocaine base. She also testified to 

seeing him speak with various FARC commanders and move 

drugs and weapons to and from camp. At one point, Ortiz 

recalled how she and other FARC members even ate lunch at 

Martinez Vega’s house. Given all that, the reference to a 

photo array was just gilding the lily. 

Second, even if the jury had completely disregarded 

Garrido and Ortiz as unreliable witnesses, multiple other 

witnesses provided similar testimony. For example, like 

Ortiz, Mauricio Parra Diaz repeatedly identified Martinez 

Vega as “Chiguiro” and testified that he saw him transporting 

cocaine and weapons for the FARC. Parra Diaz also 

confirmed, as did Ortiz, that Martinez Vega carried a pistol—

something only guerillas and drug traffickers were permitted 

to do in the 16th Front—and testified that he was present 

when Front Leader Negro Acacio announced the news of 

Martinez Vega’s arrest. Likewise, Eugenio Vargas Perdomo 

identified Martinez Vega as “Chiguiro,” and testified that they 

lived and worked together, trafficking cocaine and buying 

uniforms, weapons, and ammunition for the 16th Front. And 

Luis Restrepo testified that Martinez Vega was “Chiguiro,” 
22

and that he witnessed Martinez Vega repeatedly exchange 

weapons for cocaine with Negro Acacio. 

Garrido’s testimony, too, generally reiterated other 

evidence at trial. Garrido explained that Martinez Vega, 

during his extradition flight to the U.S., stated that his 

nickname was “Chiguiro” and described having moved 

several tons of cocaine, weapons, and supplies for the FARC. 

But Carlos Gonzales Jaramillo, a colonel in the Colombian 

army, also testified that Martinez Vega made similar 

confessions to him, including that he was “Chiguiro” and that 

he transported several tons of cocaine, as well as uniforms 

and weapons, for the FARC. 

Accordingly, looking at the evidence in the record as a 

whole, there is no “reasonable likelihood” that the photo-array

segment of Garrido’s testimony, even if false, could have 

altered the outcome of the case. Cf. Giglio, 405 U.S. at 154–

55 (reversing where “the Government’s case depended almost 

entirely on [the perjuring witness’s] testimony; without it 

there could have been no indictment and no evidence to carry 

the case to the jury”). Because the false testimony was not 

material, the district court’s refusal to grant a mistrial or a 

new trial was not an abuse of discretion.

B. Missing-Evidence Instructions

Another government witness, Mauricio Parra Diaz, 

testified to being shown photographs at the U.S. Embassy in 

Colombia by the DEA and selecting Martinez Vega as 

“Chiguiro.” Outside the presence of the jury, DEA Special 

Agents Cesar Medina and Daniel Dyer testified that a photo 

array had been shown to numerous potential witnesses in 

Colombia. However, the agents had no specific recollection 

of the people who were shown the array, and the Government

kept no record of that information or of any identifications the 
23

witnesses made. In fact, Medina confirmed that “the 

understanding” within his office was that he “would keep no 

record of this,” but simply call Dyer in the event of an 

identification, J.A. 1000, and Dyer, for his part, 

acknowledged that he did not make records of such calls. 

Medina also testified that the photo array he used was kept in 

a folder in the DEA’s Bogotá Country Office, but that he 

believed it had since been shredded because the office 

“shred[s] the photo arrays, because it is not needed any more 

for that particular interview [sic].” Id. 

In light of that testimony, Martinez Vega requested the 

following jury instruction:

Both Ms. Ortiz and Mr. Parra Diaz have testified that 

they were shown photographs of individuals at the 

United States Embassy in Bogota and that they 

identified a photograph of Martinez Vega as that of 

the person they have each identified as “Chiguiro.” 

The United States has no records or other 

information that would corroborate this testimony. If 

photographs were shown to the witnesses for 

purposes of identification, the Government would be 

obligated to preserve such photographs, as well as 

any record of what the witnesses may have said at 

the time of their identifications. The United States 

has no such photographs or records. 

J.A. 1054.

A third witness, Luis Restrepo, testified that he was 

shown photographs that “included . . . Mr. Chiguiro,” whom 

he identified in court as Martinez Vega. J.A. 1191. Garrido 

testified that he showed Restrepo a photo array depicting 

Martinez Vega and that he “thought [the photos] were filed in 
24

the case folder.” Id. at 1362. Again, no such photographs 

were produced by the Government. 

Martinez Vega requested another instruction regarding 

Restrepo’s identification: 

If photographs shown to Mr. Restrepo in this case 

were only within the power of the government to 

produce, and were not produced by the government, 

and their absence has not been sufficiently explained, 

then you may, if you deem it appropriate, infer that 

the photographs would have been unfavorable to the 

government.

J.A. 1054–55. The district court declined to give either 

instruction, citing no evidence of bad faith on the part of the 

Government regarding the loss or destruction of the 

photographs and the fact that “these were not really 

identification procedures” in which the “only way [the 

witnesses] could ever identify” Martinez Vega was through 

the photo array. Id. at 1698–1700. 

The district court’s decision withholding a missingevidence instruction is reviewed for abuse of discretion. 

United States v. West, 393 F.3d 1302, 1309 (D.C. Cir. 2005), 

abrogated on other grounds by Burgess v. United States, 553 

U.S. 124 (2008); see also United States v. Tarantino, 846 

F.2d 1384, 1404 (D.C. Cir. 1998) (describing standard of 

review for denial of analogous missing-witness instruction). 

A missing-evidence instruction “is appropriate if it is 

peculiarly within the power of one party to produce the 

evidence and the evidence would elucidate a disputed 

transaction.” West, 393 F.3d at 1309; see also United States 

v. Williams, 113 F.3d 243, 245 (D.C. Cir. 1997) (foundation 

for analogous missing-witness instruction). “When these two 

requirements are met, jurors may be instructed that the 
25

controlling party’s failure to produce the evidence permits 

them to draw the inference that the evidence would have been 

unfavorable to that party.” Id.

Federal Rule of Criminal Procedure 16, the Jencks Act, 

18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 

(1963), all impose duties on the Government to disclose 

certain materials and evidence to criminal defendants. In 

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), this 

court held that those duties to disclose included a correlative 

duty to preserve that evidence in the first place, since “[o]nly 

if evidence is carefully preserved during the early stages of 

investigation will disclosure be possible later,” id. at 651. 

Accordingly, Bryant instructed that the Government must 

“promulgate[], enforce[] and attempt[] in good faith to follow 

rigorous and systematic procedures designed to preserve all 

discoverable evidence gathered in the course of a criminal 

investigation,” or else risk the imposition of sanctions “for 

non-disclosure based on loss of evidence.” Id. at 652. 

Martinez Vega argues that, under Bryant, the 

Government was obligated to retain the photographs used in 

the witness identifications, as well as verbatim records of any 

statements the witnesses may have made at the time. The 

problem for Martinez Vega is that the Supreme Court’s 

subsequent decision in Arizona v. Youngblood, 488 U.S. 51 

(1988), narrowed the Government’s constitutional obligations 

regarding the preservation of evidence. Specifically, the 

Court held that “the Due Process Clause of the Fourteenth 

Amendment, as interpreted in Brady, makes the good or bad 

faith of the State irrelevant when the State fails to disclose to 

the defendant material exculpatory evidence.” Id. at 57. But 

if “no more can be said” about the evidence “than that it could 

have been subjected to tests, the results of which might have 

exonerated the defendant,” there is no denial of due process 
26

unless a criminal defendant can demonstrate the 

Government’s bad faith. Id. at 57–58. Youngblood thus 

confines the Due Process Clause to superintending only those 

cases in which the missing evidence is material and 

exculpatory or in which “the police themselves by their 

conduct indicate that the evidence could form a basis for 

exonerating the defendant.” Id. at 58. 

Following Youngblood, this court has held that Bryant, at 

least with respect to due process claims based on missing 

evidence the exculpatory value of which is unclear, is “no 

longer good law.” In re Sealed Case, 99 F.3d 1175, 1178 

(D.C. Cir. 1996); see also United States v. McKie, 951 F.2d 

399, 403 (D.C. Cir. 1991) (rejecting reliance on Bryant

because “due process claims . . . are now governed by the 

standards enunciated in Arizona v. Youngblood”). 

Martinez Vega nonetheless argues that Bryant provides 

the relevant standard because his objection is grounded not in 

the general protections of the Due Process Clause, but in the 

Government’s specific obligations under Federal Rule of 

Criminal Procedure 16, the Jencks Act, and Brady.7

 

Alternatively, Martinez Vega contends that, even under 

Youngblood, missing-evidence instructions were warranted 

because the Government’s bad faith can be inferred. 

Specifically, despite every incentive to maintain careful 

records of the identifications for subsequent use at trial, the 

 7 Whether Youngblood forecloses the application of Bryant in the 

context of Jencks Act claims is unsettled. See McKie, 951 F.2d at 

403 (leaving unaddressed “the continuing vitality of Bryant in its 

original context regarding claims under the Jencks Act”). But see 

United States v. Thomas, 97 F.3d 1499, 1503 (D.C. Cir. 1996) 

(noting that “the actual holding in [Bryant] did not rest on the 

Jencks Act” since “the court did not decide that the missing 

[evidence] constituted a Jencks Act statement”).
27

DEA agents kept no such documentation. Martinez Vega 

emphasizes that the exculpatory value of the untested physical 

evidence in Youngblood was unknown to the agents. See 488 

U.S. 56 n.* (noting that the defendant “has not shown that the 

police knew the [missing evidence] would have exculpated 

him when they failed to” preserve it). Here, by contrast, the 

agents necessarily knew the results of their photo-array 

presentations and thus had actual knowledge whether such 

documents were actually (and not just potentially) 

exculpatory. The conspicuous absence of evidence with 

clearly “knowable” exculpatory value, Martinez Vega 

concludes, points strongly to bad faith, especially given that 

the same DEA agents apparently preserved marked photo 

arrays used in identification procedures conducted with other 

individuals. 

The Government’s failure to retain records for witness 

identifications—records for which the inculpatory or 

exculpatory value seems obvious—is troubling. But even 

assuming Youngblood applies, the erroneous denial of a 

missing-evidence instruction will not require reversal if the 

error is harmless. See United States v. Glenn, 64 F.3d 706, 

710 (D.C. Cir. 1995). And in that regard, Martinez Vega fails 

to identify how that mistake affected his defense or had a 

substantial and injurious effect on his trial. Kotteakos v. 

United States, 328 U.S. 750, 765 (1946). Indeed, Martinez 

Vega’s identity as “Chiguiro” was established by the 

testimony of multiple witnesses based on in-person 

observations and interactions, wholly independent of the 

missing photo arrays. See, e.g., supra pp. 21-22. 

Accordingly, any error by the district court in declining to 

issue missing-evidence instructions was harmless. 
28

C. The “Chiguiro” Photograph

Six weeks before trial, the Government turned over a 

document obtained from Colombian Military Intelligence. 

The document is a printout of a PowerPoint-type slide 

containing photographs of four men. Three of the men are 

labeled FARC commanders in the 16th Front. The fourth 

photograph shows a person (not Martinez Vega) in full 

military uniform and is labeled “Angel Leopoldo Lopez, aka 

Chiguiro.” J.A. 1786. 

At trial, the Government called Major Guillermo Rios, 

Colombian Military Intelligence’s “chief of analysis” for the 

16th Front, who testified that the only names associated with 

“Chiguiro” that the Colombian military had in “the files [he] 

looked [at]” and “in the files that [he] received” were “Juan 

Jose Martinez Vega” and “Gentil Alvis Patiño.” J.A. 1149.8

On cross-examination, the defense showed the printout 

with the “Chiguiro” photo to Rios, but he denied ever having 

seen it before. Martinez Vega then filed a motion seeking all 

exculpatory evidence pertaining to the printout. A few days 

later, the Government advised Martinez Vega by letter that 

the slide from which the printout came had been found in an 

electronic storage file of the DEA Bogotá Country Office, but 

that none of the current agents of that office could identify its 

origin. However, agents who had previously worked in the 

office stated that the slide was given to them by Colombian 

intelligence around 2001 in the context of large transmissions 

 8 The indictment charged Martinez Vega under the aliases of 

“Gentil Alvis Patiño” and “Chiguiro,” but the defense demonstrated 

that Patiño was another individual with ties to other alleged FARC 

leaders, and the Government eventually stipulated that Colombian 

identification documents existed for a different individual named 

Patiño. 
29

of information on FARC members. The letter further 

explained that the Government’s contacts with the Colombian 

military and intelligence were also unaware of the origin of 

the “Chiguiro” photograph, the slide, or the information on 

the slide. 

Martinez Vega argued that it was misleading for the 

Government to ask Rios about his “files” and elicit that no 

other person had been identified as “Chiguiro” when the 

Government “knew that, at some point in time, an agency of 

Colombian Military Intelligence which reported to the office 

occupied by Rios, had reached the opposite conclusion.” J.A. 

1381. Martinez Vega therefore proposed that the following 

stipulation be provided to the jury:

The parties stipulate that Defendant Martinez [sic] 

Exhibit 3 is a document which was found in an 

electronic storage file of the Drug Enforcement 

Administration’s Bogota Country Office. It is 

believed that it was transmitted, as part of a larger 

transmission of information, by Colombian Military

Intelligence in or around 2001. The DEA has no 

further information about the origin of the document, 

the photographs contained on it, or accuracy of the 

captions to the photographs.

Id. The Government refused to so stipulate. The court also 

declined to admit the printout from the slide into evidence 

since it had not been identified by any witness and had not 

been verified or authenticated in any way. Id. at 1688–89. 

In his motion for a new trial, Martinez Vega argued that 

the Government’s delayed disclosure of the printout “at a time 

and under circumstances when Defendant could not ascertain 

the factual basis for the document” violated Brady. J.A. 1780. 

He also argued that the Government compounded the breach 
30

by questioning Major Rios in a misleading way, and that the 

district court failed to remedy those infractions. The court 

denied the motion, finding that the printout and the soughtafter information were not material. 

We review the district court’s denial of a motion for a 

new trial for abuse of discretion, but evaluate de novo the 

court’s assessment of whether the Government breached its 

obligations under Brady. See United States v. Oruche, 484 

F.3d 590, 595 (D.C. Cir. 2007). 

The district court did not err in denying a new trial 

because there is no reasonable prospect that earlier disclosure 

of the printout or any additional information about it would 

have affected the trial’s outcome. Brady requires the 

Government to disclose, upon request, “evidence favorable to 

an accused . . . where the evidence is material either to guilt or 

to punishment.” 373 U.S. at 87. The “touchstone of 

materiality” is “‘a reasonable probability’ of a different 

result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting 

Bagley, 473 U.S. at 678). The bottom-line question “is not 

whether the defendant would more likely than not have 

received a different verdict with the evidence, but whether in 

its absence he received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence.” Kyles, 514 U.S. 

at 434. “A ‘reasonable probability’ of a different result” turns 

on whether the Government’s suppression of evidence 

“‘undermines confidence in the outcome of the trial.’” Id.

(quoting Bagley, 473 U.S. at 678).

In this case, for evidence that there was another 

“Chiguiro” affiliated with the FARC to have made any 

difference, the Government’s case would have to be heavily 

reliant on Martinez Vega’s use of the nickname. But the 

record evidence bucks that notion. Multiple witnesses who 
31

knew Martinez Vega—either as “Chiguiro” or not—identified 

him repeatedly in person and testified to seeing him 

transporting weapons or cocaine and interacting with leaders 

of the 16th Front. The district court found that those 

witnesses “did not have fleeting glimpses of the defendant.” 

J.A. 2145. Rather, “they worked with him, ate meals with 

him, and even lived with him,” leaving “little room for doubt 

about the reliability of their identifications of him as the 

person they observed engaging in conspiratorial acts.” Id. 

Those witnesses personally knew Martinez Vega and 

observed him in the relevant circumstances. For those 

witnesses, the name that Martinez Vega went by was largely 

beside the point. Thus, any revelation that another individual 

affiliated with the FARC was also referred to as “Chiguiro” 

would not plausibly have had any effect on the outcome of the 

trial. 

D. Prior Inconsistent Statement

Colonel Ignacio Gonzales Jaramillo of the Colombian 

military testified that he interviewed Martinez Vega in a 

Venezuelan prison. According to Gonzales Jaramillo, 

Martinez Vega denied being involved in the FARC during the 

initial portion of the interview, which was videotaped. But 

after the video camera was turned off, Martinez Vega 

allegedly began admitting his involvement with the 

organization. Gonzales Jaramillo testified that the camera 

was off for “20, 25 minutes, maybe half an hour” during the 

interview. J.A. 1116.

Following the interview, the Colonel documented the 

details of the interview. In pertinent part, his report states:

Upon asking [Martinez Vega] about his ties to 

kidnapping and drug trafficking, he denied all 

involvement at any time. . . . 
32

The interview continued on the same line for almost 

2 hours, denying his relationship with the terrorist 

organization and denying his ties to kidnapping and 

drug trafficking. 

As the conversation progressed, facts from his past 

life were brought up, thanks to information obtained 

by intelligence work and, in other cases, supplied by 

the informant who accompanied the delegation. The 

presentation of facts made the subject begin to 

contradict himself.

J.A. 1479.

During cross-examination, defense counsel confronted 

Gonzales Jaramillo with the apparent contradiction between 

his testimony that Martinez Vega was cooperative during the 

20 or 30 minutes that the camera was off, and the report’s 

statement that Martinez Vega denied any connection to the 

FARC for nearly two hours. The Colonel explained that the 

two-hour period referred to the entire time he was with 

Martinez Vega “from the first moment I saw him until we 

started talking because until the cameras were off, we didn’t 

start a conversation.” J.A. 1119; see also id. at 1120 (“Yes, 

from the first time we saw each other until about—until we 

sat down. Less than two hours, but yes, that’s how it was.”).

Martinez Vega moved to admit into evidence a copy of 

Gonzales Jaramillo’s interview report as a prior inconsistent 

statement. He contends that, because the videotaped portion 

of the interview did not get into the subject of the FARC, 

drugs, or kidnapping, the two-hour discussion of those topics 

necessarily did not begin until after the camera was turned 

off. 
33

The district court denied the motion, finding that it was 

“not clear” that the interview report amounted to a prior 

inconsistent statement since it was ambiguous whether “the 

two hours” in the report referred to the length of the entire 

interview, or only the time during which the camera was 

turned off. J.A. 1682. The court also noted that “the jury has 

heard at length . . . what allegedly the report said” during 

cross-examination of Gonzales Jaramillo, id., and expressed 

concern that the report elsewhere contained “exculpatory 

statements of the defendant not subject to cross-examination,” 

id. at 1683. 

The district court’s admission or exclusion of evidence is 

reviewed for abuse for discretion. See United States v. 

Morgan, 581 F.2d 933, 936 (D.C. Cir. 1978). Federal Rule of 

Evidence 613(b) permits the use of a witness’s prior 

inconsistent statement for impeachment “if the witness is 

given an opportunity to explain or deny the statement and an 

adverse party is given an opportunity to examine the witness 

about it.” While “direct contradiction is not essential,” the 

trial court “has discretion in determining whether testimony is 

inconsistent with a prior statement.” 28 Wright & Gold, 

Federal Practice & Procedure, § 6203 (2d ed. 2012); see 

Grunewald v. United States, 353 U.S. 391, 423 (1957) (“[T]he 

question whether a prior statement is sufficiently inconsistent 

to be allowed to go to the jury on the question of credibility is 

usually within the discretion of the trial judge.”). 

The district court did not abuse its discretion in 

concluding that there was no material inconsistency between 

Gonzales Jaramillo’s report and his testimony. Gonzales 

Jaramillo clarified on cross-examination that, although he did 

not explicitly inquire about the FARC, drugs, and kidnapping 

during the videotaped portion of the interview, he did ask 

Martinez Vega why he had been arrested in Venezuela. J.A. 
34

1489–90 (“Why do they have you here?”; “Where did they 

nab you?”; “Alright, but why? In other words, the 

Venezuelan authorities arrived and what were you doing at 

the time?”). In response, Martinez Vega denied knowledge as 

to why the police had picked him up. Id. (“I don’t know. 

They nabbed me at the farm where I was working and brought 

me here.”; “I was fixing something of a pool and some 

kiosks.”). Martinez Vega’s responses to additional questions 

about his presence and activities in Venezuela were likewise 

vague and noncommittal. Id. at 1492 (Q: “How long have 

you been in Venezuelan territory?” A: “Since last year.” Q: 

“Can you please be more precise . . .?” A: “I don’t remember 

exactly.” . . . Q: “Beginning of the month . . . beginning of the 

year.” A: “When a man brought me here to get papers and 

help him work.” Q: “What man”?); id. at 1494 (Q: “Did you 

go to Caracas?” A: “In a car.” Q: “In a car? With whom?” 

A: “With that man.” Q: “What’s the man’s name?” A: 

“Alberto.” Q: “What does Alberto look like? . . . Alberto 

what?” A: “I don’t know his last name.”). Martinez Vega 

was also cagey about a wound in his neck, stating at first that 

it was from an operation, then explaining that he had been 

shot, but by whom he did not know. 

Those kinds of unresponsive exchanges are reasonably 

consistent with testimony that Martinez Vega “did not 

accept—he didn’t volunteer his information as to his FARC 

membership,” J.A. 1119, and that “he did deny his 

participation . . . [h]e kept saying that he had nothing to do, he 

owed nothing,” id. at 1120. They are also not inconsistent 

with the general statement in the report that Martinez Vega 

denied his relationship to the FARC or any involvement in 

kidnapping and drugs for two hours, particularly since he had 

been arrested in Venezuela for those very things. 
35

Accordingly, the district court did not abuse its discretion 

in determining that the report was not a prior inconsistent 

statement and declining to admit it under Rule 613(b). 

Moreover, even if the exclusion of the report were error, it 

was harmless given that any perceived contradiction between 

the contents of the report and the Gonzalez Jaramillo’s 

testimony was fully aired for the jury during crossexamination. See United States v. Davis, 181 F.3d 147, 149 

(D.C. Cir. 1999) (evidentiary exclusion harmless because, 

“during the cross-examination of [the witness] the jury heard 

word-for-word what he said at the suppression hearing” and 

therefore the court’s refusal to admit the transcript “in no way 

prejudiced [defendant] or impaired his defense”); United 

States v. Bogle, 114 F.3d 1271, 1275 (D.C. Cir. 1997) (court’s 

refusal to exclude prior written statement of witness was 

“clearly harmless” where defense was able to impeach the 

witness about the statement on cross-examination).

E. Sentencing Enhancement

At sentencing, the district court increased Martinez 

Vega’s base offense level by three for being a “manager or 

supervisor” in the narcotics conspiracy. Martinez Vega 

challenges the enhancement for lack of evidence that he 

supervised other participants in the conspiracy.

In reviewing a sentencing decision, “[p]urely legal 

questions are reviewed de novo; factual findings are to be 

affirmed unless clearly erroneous; and we are to give due 

deference to the district court’s application of the [sentencing] 

guidelines to facts.” United States v. Day, 524 F.3d 1361, 

1367 (D.C. Cir. 2008) (internal quotation marks omitted). 

The Government must demonstrate that a sentencing 

enhancement is warranted by a fair preponderance of the 

evidence, United States v. Bapack, 129 F.3d 1320, 1324 (D.C. 
36

Cir. 1997), though that evidence may be circumstantial, 

United States v. Graham, 162 F.3d 1180, 1183 (D.C. Cir. 

1998).

Section 3B1.1 of the Sentencing Guidelines permits the 

district court to increase a defendant’s base offense level due 

to his “aggravating role” in an offense. U.S.S.G. § 3B1.1. 

“The magnitude of the enhancement varies with the 

culpability of the defendant,” Graham, 162 F.3d at 1182–83, 

as well as the scope of the criminal activity. As relevant here, 

a defendant is subject to a three-level increase for being “a 

manager or supervisor (but not an organizer or leader)” of a 

criminal activity that “involved five or more participants or 

was otherwise extensive.” U.S.S.G. § 3B1.1(b); see Graham, 

162 F.3d at 1183. 

The commentary to Section 3B1.1 instructs the 

sentencing court to consider several factors in determining 

whether to apply an enhancement, including “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 and authority exercised over others.” 

U.S.S.G. § 3B1.1 application note 4. 

“Mere control over a scheme rather than over a 

participant in a scheme” is not enough to warrant an 

aggravating role enhancement. Bapack, 129 F.3d at 1324 

(internal quotation marks omitted). Instead, the guidelines 

require that “the defendant must have been the organizer, 

leader, manager or supervisor of one or more participants” in 

the criminal activity. U.S.S.G. § 3B1.1 application note 2 

(emphasis added). A “participant” is a “person who is 
37

criminally responsible for the commission of the offense, but 

need not have been convicted.” Id. § 3B1.1 application note 

1. An individual is “‘criminally responsible’ under § 3B1.1 

only if ‘he commit[s] all of the elements of a statutory crime 

with the requisite mens rea.’” United States v. McCoy, 242 

F.3d 399, 410 (D.C. Cir. 2001) (quoting Bapack, 129 F.3d at 

1325). “This does not mean, however, that to qualify as a 

‘participant’ a person must be found criminally responsible as 

a principal or culpable in the same crime of which the 

supervising defendant was convicted.” Bapack 129 F.3d at 

1325 (emphasis added). Instead, “a party who gives knowing 

aid in some part of the criminal enterprise is a ‘criminally 

responsible party.’” Id. (quoting United States v. Hall, 101 

F.3d 1174, 1178 (7th Cir. 1996)) (emphasis added).

Accordingly, to justify the three-level managerial-role 

enhancement, the Government had to prove by a 

preponderance of the evidence that Martinez Vega (i) 

managed or supervised (ii) at least one “participant” who was 

criminally responsible for an offense (iii) in a criminal 

activity that involved five or more participants or was 

otherwise extensive. The district court adequately assessed 

the first element, but failed to make the required findings on 

the second and third elements. 

As to the first element, the district court pointed to record 

evidence showing that Martinez Vega “had significant 

responsibility given to him by the leadership of the FARC” 

and exercised “decision-making authority on selling these 

drugs, and transferring them for weapons and getting the 

weapons.” Sentencing Tr. 45–46. The court recounted the 

testimony of Parra Diaz, which had “suggest[ed] that the 

defendant may have a troop” and had described “Mr. 

Martinez Vega as having guards . . . suggest[ing] that there 

were many supervised.” Id. at 40. The court also relied upon 
38

Ortiz’s testimony to the effect that “the person in charge of 

that group of drivers and all was ‘Chiguiro,’ that is the 

defendant,” id. at 42, and Restrepo’s testimony that “the 

defendant was like our commander, our immediate 

commander,” and “the defendant actually assigned them 

where to go,” id. at 42–43. The record thus amply supported 

the district court’s conclusion that Martinez Vega had 

sufficient control and authority over other individuals to be a 

manager or supervisor. 

But absent from the district court’s analysis is any 

consideration of the second element necessary for the 

enhancement: whether any of the persons allegedly 

supervised by Martinez Vega qualified as a “participant” 

under Section 3B1.1. The parties specifically contested that 

issue at the sentencing hearing. The Government asserted that 

“any individuals who are engaged in moving cocaine and 

weapons to a guerilla group in the jungles in Colombia would 

have, by definition, been aware of the criminal nature of the 

their activities, and they would have been participants as 

understood by the guidelines.” Sentencing Tr. 26. Martinez 

Vega countered that the Government had not shown that the 

workers who helped him load and unload sacks would have 

known that the sacks contained cocaine base or that it was 

being exported to the United States. Id. at 37. The district 

court, however, did not address the issue and made no finding 

that one or more of those supervised individuals had the 

requisite criminal mens rea and culpability to count as 

“participants.”9 

The district court’s assessment of the third element also 

came up short. The court found that Martinez Vega’s 

 9 Martinez Vega argues (Br. 71) that “participants” must have “the 

same culpable mens rea” as their supervisor. Bapack holds 

otherwise. 129 F.3d at 1325.
39

“activities were otherwise quite extensive in this area” of 

“transport[ing] . . . narcotics and weaponry.” Sentencing Tr. 

47. But the Guidelines’ “otherwise extensive” inquiry 

pertains to the scope of the criminal activity as a whole, not 

the defendant’s particular involvement in it. See U.S.S.G. 

§ 3B1.1(b) (asking whether “the criminal activity involved 

five or more participants or was otherwise extensive”) 

(emphasis added). That is, the criminal activity must either 

involve “five or more participants” or be “otherwise 

extensive” in that it involves fewer than five criminally 

culpable “participants,” but could include a number of 

“unknowing outsiders.” United States v. Wilson, 240 F.3d 39, 

49 (D.C. Cir. 2001) (“otherwise extensive” demands “a 

showing that an activity is the functional equivalent of an 

activity involving five or more participants”) (citation 

omitted). On that point, the district court made no finding.

Accordingly, we vacate Martinez Vega’s sentence and 

remand to the district court for resentencing in view of the 

legally required elements for a “manager or supervisor” 

enhancement. In so doing, we reach no conclusion as to the 

sufficiency of the existing record on those issues, but 

emphasize that the review on remand is constrained to the 

existing record.10

III. Issues Raised by Cuevas

Cuevas raises five arguments specific to the case against 

him, namely, that the district court (i) should have granted 

 10 Martinez Vega also asserts that he was eligible for a two-level 

reduction as a “minor participant” under Section 3B1.2 of the 

guidelines. The district court declined the decrease, finding 

sufficient evidence that Martinez Vega played a significant role in

the conspiracy, Sentencing Tr. 45–46, and on this record we find no 

error in that ruling. 
40

Cuevas’s motion for a mistrial after Garrido testified about a 

previously undisclosed conversation he had with Cuevas; (ii) 

should not have admitted into evidence recordings of 

Cuevas’s phone calls; (iii) violated the Confrontation Clause 

by limiting Cueva’s questioning of cooperating witnesses; (iv) 

wrongly permitted the exhibition of a video depicting a police 

raid; and (v) erroneously applied sentencing enhancements for 

being a manager or supervisor and for possession of a firearm. 

None has merit.

A. Garrido’s Reference to Cuevas as “Mincho”

Throughout the trial, the Government alleged, and 

Cuevas denied, that Cuevas was the FARC’s prominent 

cocaine manufacturer known as “Mincho.” After two 

witnesses had identified Cuevas as Mincho, the Government 

called Garrido to testify about Cuevas’s extradition. The 

following exchange occurred:

Q: When did you first encounter Mincho, or the 

defendant Cuevas Cabrera that day?

A: I went inside that area while he was being 

processed by the Colombian authorities. I went in. I 

asked, “Are you Mincho?” He said, “Yes.” I verified 

his name. Erminso Cuevas Cabrera. 

Cuevas objected to the testimony on the ground that Cuevas’s 

alleged statement to Garrido had not been disclosed during 

discovery, and he requested that the testimony be stricken. 

The court sustained the objection and issued the following 

instruction to the jury:

Ladies and gentlemen, Agent Garrido mentioned 

that when he spoke to Mr. [Cuevas] Cabrera, he 
41

asked him if he was Mincho, and he said, yes, I am 

Mincho. I am going to strike that testimony. That 

was not previously announced as evidence in the 

case about any statements that Mr. Cabrera may 

have made that he was Mincho. So I am going to 

strike that from the testimony, have you disregard 

that statement by—allegedly made by Mr. Cabrera. 

Cuevas nevertheless moved for a mistrial, which the 

district court denied. Cuevas now argues the denial was error 

because the testimony was highly prejudicial and because the 

court’s curative instruction, by repeating the offending 

testimony and by implying its exclusion was due only to a 

technicality, exacerbated rather than mitigated the prejudice. 

A “mistrial is a severe remedy—a step to be avoided 

whenever possible, and one to be taken only in circumstances 

manifesting a necessity therefor.” United States v. 

McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004). The 

district court’s principal consideration in ruling upon a motion 

for mistrial is the extent of prejudice suffered by the 

defendant, and we review the district court’s denial only for 

abuse of discretion. Id. 

In this case, it is not obvious why Garrido’s stricken 

testimony was prejudicial considering that at least two other 

witnesses previously had identified Cuevas as “Mincho,” and 

the evidence established that “Mincho” is a common 

nickname for Erminso. Further, whatever harm may have 

been done by the testimony was promptly undone by Judge 

Hogan’s curative instruction. “We normally presume that a 

jury will follow an instruction to disregard inadmissible 

evidence inadvertently presented to it, unless there is an 

overwhelming probability that the jury will be unable to 

follow the court’s instructions.” Greer v. Miller, 483 U.S. 
42

756, 766 n.8 (1987) (internal quotation marks and citation 

omitted). Neither Judge Hogan’s repetition of the offending 

testimony (which was necessary to specify the objectionable 

content for the jury after numerous intervening questions) nor 

his stated reason (which was no more technical than any other 

evidentiary ruling) created such an “overwhelming 

probability” here.

B. Admission of Cuevas’s Phone Calls

In 2004 a federal judge in the Southern District of Florida 

authorized telephone wiretaps based upon a DEA agent’s 

affidavit stating that the “target telephones will be located 

overseas” and that the “intercepts will be conducted from, and 

monitored in, the Southern District of Florida.” A 

confidential DEA source then provided the monitored phones 

to targets in Colombia. The Government intercepted Cuevas 

discussing his operations on two calls, which it played at trial 

during the testimony of the other party to the recorded calls. 

Cuevas argues the tapes were inadmissible because 

federal law prohibits foreign surveillance and because the 

federal judge who approved the wiretaps lacked jurisdiction to 

do so. Cuevas forfeited these arguments by failing to raise 

them in the district court, so we consider them at most for 

plain error. United States v. Williams, 773 F.3d 98, 105 (D.C. 

Cir. 2014); see also United States v. Burroughs, 810 F.3d 833, 

837–38 (D.C. Cir. 2016). 

First, Cuevas’s contention that extraterritorial 

surveillance is prohibited because “Title III . . . has no 

extraterritorial force” reflects a fundamental 

misunderstanding of the role of the statute. Title III of the 

Omnibus Crime Control and Safe Streets Act of 1968 

“imposes . . . limitations on the use of electronic 
43

surveillance.” United States v. Chavez, 416 U.S. 580, 580 

(1974). If it does not apply extraterritorially, then 

government surveillance outside the United States is 

unconstrained, not forbidden, by Title III. 

Second, Cuevas’s contention that a “listening post” in the 

Southern District of Florida was insufficient to confer 

jurisdiction upon the federal court there is unavailing if only 

because every circuit that has considered the question has 

deemed a listening post sufficient. See, e.g., United States v. 

Luong, 471 F.3d 1107, 1109 (9th Cir. 2006); United States v. 

Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992). With no 

“controlling precedent” or “other absolutely clear legal norm” 

to support Cuevas’s position, the purported error by the 

district court, if error it be, cannot be deemed plain. See 

United States v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011).

C. Cross-Examination of Cooperating Witnesses

At trial, former members of the FARC testified for the 

Government.11 Cuevas learned that these witnesses wore 

monitoring devices on their ankles both for their own safety 

and to prevent them from fleeing and illegally remaining in 

the United States. Cuevas sought to cross-examine the 

witnesses about the devices on the ground that they revealed 

potential bias. After consulting with the U.S. Marshal 

Service, the district court found the anklets were “a security 

practice used with many witnesses,” and were not being used 

because the witnesses were “under charges or otherwise

untrustworthy.” The court concluded that the devices had “no 

 11 These witnesses were known as “reinsertados” because they had 

been reintegrated into civil society through a Colombian 

government program that grants members of the FARC immunity 

for past crimes in exchange for cooperation with law enforcement.
44

relevance” to the witnesses’ credibility and that inquiry would 

“lead into other areas . . . far afield from what is relevant in 

this trial,” such as the threat Cuevas himself posed to safety of 

the witnesses. Accordingly, the judge prohibited Cuevas from 

cross-examining the witnesses about the devices. 

Cuevas argues the limitation violated the Confrontation 

Clause of the Sixth Amendment to the Constitution of the 

United States. Although that Clause guarantees a criminal 

defendant “the right . . . to be confronted with the witnesses 

against him,” a district judge has

wide latitude insofar as the Confrontation Clause is 

concerned to impose reasonable limits on . . . crossexamination based on concerns about, among other 

things, harassment, prejudice, confusion of the 

issues, the witness’ safety, or interrogation that is 

repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We 

review the district court’s limitation of cross-examination for 

abuse of discretion, with the central inquiry being “whether 

the jury would have received a significantly different 

impression of the witness’s credibility had defense counsel 

been permitted to pursue the [disallowed] line of 

questioning.” United States v. Wheeler, 753 F.3d 200, 205 

(D.C. Cir. 2014).

The district court did not abuse its discretion here. 

Questions about the devices would be of no incremental value 

to the defendant in this case, and the district court reasonably 

concluded that such questions would “stray far afield from 

what [was] relevant in this trial.” The jury was already aware 

that all the former FARC members who testified were 

admitted participants in a cocaine trafficking organization; 
45

that several had admittedly engaged in guerilla warfare; that 

some were admitted murderers; and that all had been spared 

prosecution in return for their cooperation with law 

enforcement. With all this laid bare, it is highly unlikely that 

questions about the monitoring devices would have left the 

jury with a “significantly different impression of the 

witness’s” propensity to bias or motivation to lie on behalf of 

the Government. Id.

D. Admission of the Video

At trial, Lieutenant Colonel Alvarez Ochoa of the 

Colombian National Police testified as an expert on 

Colombian cocaine laboratories and the organization of the 

FARC. Over Cuevas’s objection, the Government introduced 

a video of a police raid, in which Alvarez participated, on a 

cocaine laboratory unconnected to Cuevas. The video 

depicted a typical cocaine lab in the jungle, the recovery of

seven tons of cocaine “base,” the demolition of the laboratory 

with explosives, and helicopters that provided armed air 

support. It is not clear from the testimony whether the video 

depicted any violent resistance from the operators of the 

laboratory, but Cuevas claims it did. Cuevas argues the video 

of a raid on a cocaine lab outside either defendant’s territory 

was irrelevant and highly prejudicial, and it should have been 

excluded under Federal Rule of Evidence 403. 

Rule 403 permits exclusion of otherwise admissible 

evidence if “its probative value is substantially outweighed by 

a danger of . . . unfair prejudice, confusing the issues, [or] 

misleading the jury.” We review a district court’s 

determination under Rule 403 “with great deference, 

reversing only for grave abuse of discretion.” United States v. 

Clarke, 24 F.3d 257, 265 (D.C. Cir. 1994). In this case, 

Cuevas has failed even to offer any account of how the video 
46

caused him any prejudice, let alone sufficient prejudice to say 

the district court gravely abused its discretion. 

E. Sentencing Enhancements 

Cuevas raises the same objection to the three-level 

“manager/supervisor” sentencing enhancement as does 

Martinez Vega, namely that the district court erred in 

applying the enhancement because there was insufficient 

evidence of the culpability of anyone Cuevas supervised. 

Unlike Martinez Vega, however, Cuevas was expressly found 

by the district court to have supervised numerous culpable 

individuals. We are bound by this factual finding unless it is 

clearly erroneous, see United States v. Henry, 557 F.3d 642, 

645 (D.C. Cir. 2009), which it is not. The evidentiary record 

here, including Maria Santiago’s testimony that she worked 

alongside 80 employees in a cocaine laboratory run by 

Cuevas, supports the court’s finding. 

Cuevas also objects to the imposition of a two-level 

enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), for 

possession of a firearm during a drug offense. The district 

court, however, expressly found that Cuevas carried a weapon 

while running the lab, and this finding is far from clearly 

erroneous. Two witnesses testified to having seen Cuevas 

carry a handgun while committing drug offenses. Cuevas 

challenges the credibility of those witnesses, but the “district 

court’s credibility determinations are entitled to the greatest 

deference from this court on appeal.” Carter v. Bennett, 840 

F.2d 63, 67 (D.C. Cir. 1988). Cuevas gives us no basis for 

disturbing the court’s finding.
47

IV. Conclusion

We affirm the convictions of Juan Martinez Vega and 

Erminso Cuevas Cabrera. We also affirm Cuevas’s sentence, 

but we vacate Martinez Vega’s sentence and remand to the 

district court for resentencing consistent with this opinion.

So Ordered