* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4.

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 (conta ining the cocaine) being delivered to him, but

before he received them. D ISMISSED in PART ; AFFIRMED in PART

,

resulting in the conviction and sentence being AFFIRMED

.2 I.

On 1 2 July 2000, a DEA Agent at a Houston, Texas, airport

discovered freezer packs (contai ning 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, Ne w Jersey. Gegg and Laken agreed to cooperate

with law enforcement by recording convers ations 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 21 U.S.C . §§ 841(a)(1),

(b)(1)(A)(ii) and 18 U.S.C. § 2, 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 c ocaine; Forte recruited

Gegg, Laken, and Jessica Robinson; prior to the July 2000 incident3

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

cou nt. Forte was sentenced, i nter 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 subissues) 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 rev ersible error. That, of course, is their

ob ligation to their client. On the other hand, nothing in this4

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

impro perly 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 privi lege and improperly deprived him of witness

statements; (3) the prosecutor improperly and repeatedly referred

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

silence and assistance of counsel; (4) the cou rt improperly

instructed the jury o n 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

a fter 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.5

For sentencing

, Forte claims the court improperl y: (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 , 3

F.3d 124, 126 (5th Cir. 1993). A finding is clearly erroneous if

we are left with the definite and firmconviction that a mistake

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

, 279 F.3d

302, 306 (5th Cir. 2002).

The many issues not raised in district court are reviewed only

for plain error. F E D

. R. C RIM

. P. 52(b); e.g., United States v.

Garcia-Flores

, 246 F.3d 451, 457 (5th Cir. 2001). This narrow

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

that affected his substantial rights. I d

. 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., U nited States v. Calverley

, 37

F.3d 160, 164 (5 th Cir. 1994) ( e n banc ), cert. denied

, 513 U.S.

1196 (1995).6 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 distric t court

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

It determined Forte’s extensive joinder motion pape rs 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 ob jectively

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

papers, that Forte had no reasonable expectatio n of privacy,7

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 d e novo

.

United States v. Gomez

, 276 F.3d 694, 697 (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., id

. Forte has the burden of demonstrating

standing. U

nited States v. Wi lson , 36 F.3d 1298, 1302 (5th Cir.

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

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

evid ence taken at the suppression hearing”. U nited States v.

Alvarez

, 6 F.3d 287, 2 89 (5th Cir. 1993), c ert. denied

, 511 U.S.

1010 (1994).

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

and seizure only through the introduc tion 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.” W ilson

, 36

F .3d. at 1302. S ee also United States v. Krout

, 66 F.3d 1420,

1430-31 (5th Cir. 1995), cert. denied

, 516 U.S. 1136 (1996). “Codefendants

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

alleged partners in crime s olely on the basis of their8

interpersonal association.” United States v. Dyar

, 574 F.2d 1385,

1391 (5th Cir.), cert. denied , 439 U.S. 982 (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

,

140 F.3d 6 10, 614 (5th Cir.), c ert. denied

, 525 U.S. 973 (1998);

United States v. Thomas , 120 F.3d 564, 571 (5th Cir. 1997), cert.

denied , 522 U.S. 1061 (1998). To determine whether Forte had the

requisite reasonable expe ctation 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”. C ardoza-Hinojosa

, 140 F. 3d at 615.

In applying this test, the reasonable expectation of privacy

vel non is reviewed de novo

. E .g., United States v. Vicknair

, 610

F.2d 372, 379 (5th Cir.), cert. denied

, 449 U.S. 823 (1980).

Again, underlying factual f indings are reviewed only for clear

error. I d

. The following analysis demonstrates Forte lacked

standing.9 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 c oolers 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 h e was to hold them for

Thompson

. Moreover, Forte clearly did not possess the suitcases or

their contents at the relevant ti me: for the search in Houston,

Gegg and Laken were in sole possession of the luggage.

R egarding the right to exclude others from the suitcase s

,

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

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

this right, providing access to the suitcases.)10

Regarding both exhibiti o n of a subjective expectation of

privacy and precautions t aken to maintain privacy, Forte did

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

Gegg and Lak en 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 , 448 U.S.

98 (1980) (one who put drugs in another’s purse had no reasonable

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

inconsistent with an expectat ion of privacy, s ee, e.g., United

States v. Payne

, 119 F.3d 637 (8th Cir.), cert. denied , 522 U.S.

987 (1997), and were traveling openly on a common carrier as

“checked” lugga ge, subject at least to inspection by airport

security.

Forte claims standing because: the suitcases were being

delivered to him; he took possession of them; an d 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 instea d 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 prec luded from contending Forte lacked standing because, at11

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, th ey do not demonstrate a

generalized expectation of privacy in the suitcases or constitute

reasonable p recautions to exclude others. S ee Cardoza-Hinojosa

,

140 F.3d at 616 (citing Rakas v. Illinois , 439 U.S. 128, 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

, 963 F.2d 770, 774 (5th

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

expectation of privacy in repositories of persona l effects they

send by private parties. V illareal held the defendant had a

reasonable expectation of privacy in a container he shipped by

common carrier (a motor transport c ompany) t o himself using a

fictitious name. I d

. V i llareal stated that a party does not12

surrender expectations of privacy by sending closed containers by

private parties. I d

. A legitimate expectation of privacy v el 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

, 649 F.2d 1152, 1155 (5th Cir. 1981), cert.

denied , 455 U.S. 1022 (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 Vi llareal , 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

, 119 F.3d 637 (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 w as 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

. S ee

Thomas , 120 F.3d at 571. The cocaine was not in Forte's personal13

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 dismi ss the indictment because of the Government's

knowing presentation of perjured test imony 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

. U nited States v.

Johnson , 68 F.3d 899, 902 (5th Cir. 1995). We review only for

clear error factual findin gs regarding perjury, U nited States v.

Strouse

, 286 F.3d 767, 77 1 (5th Cir. 2002), and prosecutorial

misconduct, United States v. Bourgeois

, 950 F.2d 980, 984 (5th Cir.14

1992). The materiality of perjured statements is determined d e

novo. Strouse , 286 F.3d at 771.

“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 proce ss clause”;

suc h violations are found only in the rarest circumstances.

Johnson

, 68 F.3d at 902 (internal quotation marks omitted). The

knowing presentation of perjured testimony a t trial in order to

secure a conviction constitutes such a due process violation.

E.g.

, Miller v. Pate , 386 U.S. 1 (1967). However, where the

G overnment presents false testimony to the grand jury

, t h e

indictment may be dismissed only if the testimony is knowingly

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

See Strouse

, 286 F.3d at 773-74. A statement is material if it is

capable of influencing the factfinder with regard to the issue

before it. Id . at 771.

As demonstrated infr a , 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 told15 us that they we ren’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 fourtee n 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 thawi ng. As the

Government points out, the instructions were intende d for both

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

cocaine in her suitcase that had to be put on ice.16 B.

For th e 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 postarrest 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 conc erned 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 instruction17

that the law regard s “everyone even” in terms of how to assess

credibility. Relying on United States v. Duncan

, 191 F.3d 569, 573

(5th Cir. 1999), cert. denied , 529 U.S. 1122 (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 d o 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 rul ing is reviewed only for manifest

abuse of discretion. U nited States v. Munoz

, 15 F.3d 395, 397 (5th

Cir.), cert. denied

, 511 U.S. 1134 (1994). “We grant broad

discretion to the trial judge in making determinations of

impartiality and will not interfere with such d ecisions absent a

clear abuse of discretion.” U nited States v. Hinojosa

, 958 F.2d

624, 631 (5th Cir. 1992).18

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 , 191 F.3d at 573 (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 im p artial, the fact that the

defendant had to use a peremptory challenge to

achieve that result does not mean the Sixth

Amendment was violated.

Id

. (internal citation omitted). Accordingly, our inquiry is

lim ited to the impartiality v el non of number 25. S ee Ross v.

Oklahoma , 487 U.S. 81, 88 (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 to19

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 t hat 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 intervi ew notes or reports concerning

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

involved in July incident). The prosecutor responded that neither20

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

a ny of the prosecutor’s notes were discoverable under the Jen cks

Act, Brady v. Maryland , 373 U.S. 83 (1963) (evidence favorable to

the accused or useful to the defense for impeachment must be

produced), or Giglio v. United States

, 405 U.S. 150 (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

v olition, to be interviewed when he met with Forte's couns el.

After hearing th e testimony and conducting its i n camera review,

the court determined that the notes contained no discoverable

Jencks, Brady

, or Giglio material.

A d istrict court’s decisions regarding discovery under the

Jencks Act are reviewed only for clear erro r. U nited States v.

Hodgkiss

, 116 F.3d 116, 117 (5th Cir. 1997). And, even if we

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

Id

.

Under the Jencks Act, the Government must provide the

defendant with witness statements relating to the subject matter on

which the witness has testified. 18 U.S.C. §§ 3500(b), (e)(1). A

“ statement” includes a written statement made by the witness and21

signed or otherwise adopted and approved by h im, and a

substantially verbatim recital of a stateme n t made and

contemporaneously recorded. 18 U.S.C. § 3500(e)(1), (2). ( Brady

and Gigl io hold the Constitution forbids the Government from

suppressing evidence favorable to the accused or useful to the

defense for impeachment of witness who testif ies against the

accused. 373 U.S. 83; 405 U.S. 150.)

In United States v. Martino

, 648 F.2d 367 (5th Cir. 1981),

further unrelated proceedings at 681 F.2d 952 (5th Cir. 1982),

defendants rai sed essentially the issue being raised by Forte.

T hey “condemn[ed] the manner in which the government conducte d

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”. I d

. 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”, M artino 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 r educed to

writing and signed or otherwise approved by

the witness . We cannot presume that the

prosecutor acted in bad faith by failing to

reduc e his notes to written form.... Indeed22 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, w e 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 , 995 F.2d 578, 587 (5th

Cir. 1993). S ee also United States v. Myers

, 198 F.3d 160 (5th

Cir. 1999), cert. denied , 530 U.S. 1220 (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 bein g transported), the

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

post-arrest interviews he gave:23 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 o pportunity

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 mat ter 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 pr ivy to that. Can we go over

that again?24 ***

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] neve r asked me how I got

myself involved in the drug business, she

asked me how I got myself invo lved in this

situation.

Q. And when asked by [the Officer], you

didn’t say at that time, “I’m in nocent. 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 conclus ion 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

, 426 U.S. 610 (1976) (Due Process Clause prohibits

impeachment of defendant’s exculpatory story by using defendant’s25

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 postarrest silence, we review only for plain error. E .g., GarciaFlores

, 246 F.3d 451. Again, we will only reverse if, i nter 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 firs t 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 r emain silent. E .g., Jenkins v. Anderson

, 447 U.S. 231

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

On the other hand, as the district court discussed with

counsel, Doyle does no t 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 , 447 U.S. 404, 408 (1980); Pitts v. Anderson

,26

1 2 2 F.3d 275, 279-83 (5th Cir. 1997). In other words, and

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

“ Doyle does not apply to cross-exam ination 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 no t been induced to

remain silent”. Charles , 447 U.S. at 408.

a.

It does not appear that the prosecu tor’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 co ntained money, not cocaine. As such, the prosecutor’s

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

t hrough the use of a prior inconsistent statement (permitted by

Charles ) rather than a plea for the jury to infer guilt from his27

exercise of his Fifth Amendment rights (prohibited by Doyle ). S ee

Pitts

, 122 F.3d at 281 (most courts have held where post-arrest and

trial statements involve the same subject matter and the postarrest statement is sufficien tly 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 D oyle error has been held

reversible, the critica l error was the prosecutor’s c losing

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

.

United States v. Rodriguez

, 260 F.3d 416, 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] th at crossed the D oyle line. The

prosecutor’s questioning of [the defendant]

during cros s-examination was a permissible

attempt to impeach....

See also Garcia-Flores

, 246 F.3d at 457 (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.28 4.29

Forte claims the district court er red 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 w as “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

close d his eyes to what would otherwise have

been obvious t o 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 [F orte] deliberately blinded

himself to the existence of a fact.

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

See, e.g.

, F ED

. R. C RIM

. P. 30, 52(b); United States v. Gray

, 96 F.3d

769, 775 (5th Cir. 1996), cert. denied

, 520 U.S. 1129 (1997). (In

fact, be cause Forte expressly agreed to the instruction, the

claimed error is arguably invited error. S ee United States v.

Pankhurst

, 118 F.3d 345, 349 (5th Cir.), cert. denied

, 522 U.S.

1030 (1997) (agreeing in c harge 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”. U nited States

v. Farfan-Carreon

, 935 F.2d 678, 680 (5th Cir. 1991) (internal

citat ions omitted). A “deliberate ignorance” or “wilfull30

blindness” instruction is appropriate when “the facts support an

inference tha t 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

, 38 F.3d 761, 772 (5th Cir. 1994), c ert.

denied , 514 U.S. 1051 (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 demonstrat ed 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. I nter 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,

jus t 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 t o 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 , 530 U.S. 466 (2000), and Ring

v. Arizona

, 536 U.S. 584 (2002), Forte maintains that, because a31

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 r ecent decision in

United States v. Gamez-Gonzalez

, 319 F.3d 695 (5th Cir. 2003) : the

Government is not required to pr ove a defendant’s m ens rea

regarding the type and quantity of a controlled substance for drug

possession offenses.

6.

T he district court excused a juror after deliberations had

begun a nd 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

,32

265 F.3d 276, 288 (5th Cir. 2001), c ert. denied

, 534 U.S. 1095

(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 gi ving 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. W ithout

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

, 956 F.2d 1309, 1312 (5th Cir. 1992), cert.

denied , 508 U.S. 905 (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 have33

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 d iscretion. 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 F ED

. R. C RIM 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 discus s the case with any

o ther 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 had34

reached a verdict. After the court excused the incapacitated

juror, and before recalling the alter nate, it confirmed, by

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

c ase. 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 ev idence was insufficient to support his

conviction for posses sion 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

, 313 F.3d 882, 884 (5th Cir. 2002) ( en ba nc )

, cert.

denied

, 71 U.S.L.W. 3567 (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 al ia , to determining

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

.

at 885. S ee also, e.g., Delgado

, 256 F.3d 264, 274 (5th Cir.

2001).35

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

sufficiency claim by objecting to the inconsistency of the verdicts

(conviction f or possession, acquittal for conspiracy). This

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

, 429

F.2d 1 282 (5th Cir. 1970)(sufficiency of evidence not preserved

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

F orte asserts (for the first time in his reply brief) that, i f

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

, 949

F.2d 151 (5th Cir. 1991), cert. denied , 504 U.S. 945 (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.

T here was evidence that, i nter alia : Thompson was an

experienced drug tr afficker who contracted with Forte to recruit

young females to transport cocaine; Thomp son explained to Forte

that the cocaine would be hidden in freezer packs to escape

detection by dru g-sniffing dogs and x-rays; Forte recruited

Robinson in May 2000 to carry such packs from Panama to Mexico City36

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, Ge gg confronted him by telephone when she

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

direc ted 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 (reco rded

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

containing cocaine; Forte was concerned about the possibility of

raising a “red fl ag” 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 co n tends: (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” downward37

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

trial.

1.

For the leadership enhancemen t, 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 , 530 U.S. 466, 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 sup ervisor

(but not an organizer or leade r) 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

. S ee, e.g., United States v. Doggett

, 230 F.3d 160, 165 (5th

Cir. 2000), cert. denied

, 531 U.S. 1177 (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.38

E.g., United States v. Peters

, 283 F.3d 300, 314 (5th Cir. 1990),

cert. denied , 535 U.S. 1071 (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

, 248 F.3d 434, 444 (5th Cir.), cert. denied

, 534

U.S. 980 (20 01); United States v. Garcia , 242 F.3d 593, 599 (5th

Cir. 2001).

In fact, we have specifically rejected the claim that Apprendi

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

reasonable doubt. U nited States v. Clinton

, 256 F.3d 311 (5th

Cir.), cert. denied

, 534 U.S. 1008 (2001). Forte contends,

however, that the recent decision in Ring

, 536 U.S. 584, reinforces

his reading of Apprendi and demonstrates our court has been reading

Apprendi too narrowly. R ing

, 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. 536 U.S.

5 84. S ee also United States v. Matthews

, 312 F.3d 652 (5t h Cir.

2002) (post- Ring )(key factor in whether element must be proved to39

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 warra nts 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

o ffense, the nature and scope of the illega l

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.40

Forte instructed the women regarding details; throughout the

offense, Gegg called Forte for instructio ns. 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 wo rked closely with

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

cocain e. 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 fou r others transported

approxim ately 13 kilograms of cocaine from Harlingen to Newark.41

The entire operation took several days to execute and involved

v arious 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, Uni ted States v. Flanagan , 80

F.3d 143, 145, here we review only for plain error.

To be eligible for the safety valve provision of 18 U.S.C. §

3553(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) th e 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. 18 U.S.C. §

3553(f); U.S.S.G. § 5C1.2.

Because Forte does not qualify for the safety valve reduction,

there was no error, much le ss plain error. As discussed s upra

,

Forte was properly assessed a managerial role; therefore, he does42

not satisfy the fou rth 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 ac quittedcount 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 profe ssional 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 c ourt’s refusal to grant a

downward departure. We have jurisdiction only

if the refusal was in violation of the law. A

refusa l 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.43

Un ited States v. Garay , 235 F.3d 230, 232 (5th Cir. 2000), c ert.

denied

, 532 U.S. 986 (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. F orte 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 Governm ent 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 pled44

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

asked the Government to explain what addi tional deterrent effect

would be achieved, or penological interest served, by the

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

120 month s (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 discus sed supra , we have no jurisdiction to review a

district court’s d ecision 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 fore going 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

.