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No. 1-00-1796 
                                                                                                                                                   First Division
                                                                                                                                                   October 15, 2002

 
JUSTICE COHEN delivered the opinion of the court:

Following a bench trial, defendant Ignacio Batrez was found legally accountable (720 ILCS5/5-2(c) (West 1998)) for the offense of delivery of a controlled substance (cocaine) in an amountgreater than 15 but less than 100 grams (720 ILCS 570/401(a)(2)(A) (West 1998)). Defendant wassentenced to six years' imprisonment. On appeal, defendant argues that he is entitled to a new trialbecause: (1) the trial court erred in permitting a police officer to testify as to the substance of hertelephone conversation with defendant where the State failed to properly disclose the substance ofthat conversation to defendant prior to trial pursuant to Supreme Court Rule 412(a)(ii) (134 Ill. 2dR. 412(a)(ii)); (2) defendant was deprived of effective assistance of counsel where counsel failedto investigate the substance of the telephone conversation and such ineffectiveness rendereddefendant's jury waiver invalid; and (3) the trial court erred in admitting, pursuant to thecoconspirator exception to the hearsay rule, a statement made by the codefendant. For the followingreasons, we affirm.

BACKGROUND

Defendant and codefendant Jose Pico were charged by indictment with the unlawful deliveryof more than 15 but less than 100 grams of a controlled substance (cocaine) (720 ILCS570/401(a)(ii)(A) (West 1998)). Defendant and Pico were tried separately.

At the beginning of defendant's trial, defense counsel indicated that defendant wished towaive his right to a jury trial. Upon questioning by the trial judge, defendant acknowledged both thathis lawyers had explained "what a jury is" and that he understood "what a jury is." Defendantconfirmed that he wished to give up his right to a jury. Defendant acknowledged his signature onthe jury waiver form and stated that his lawyers had explained the waiver form to him. The trialcourt accepted defendant's jury waiver and the matter proceeded to a bench trial.

Officer Donna Salvage testified that on September 10, 1998, she was performing undercoverwork in controlled narcotics transactions as part of a team. During the afternoon of September 10,1998, Officer Salvage telephoned defendant, whom she knew by the nickname "Nacho." OfficerSalvage testified that, at the time of this telephone call "we⁽¹⁾ were on the street in a prearrangedlocation near the area of the buy." The prosecution then asked Officer Salvage to indicate the natureof her telephone conversation with defendant. Defense counsel objected, arguing that the State hadfailed to disclose the substance of the telephone conversation pursuant to Supreme Court Rule 412. The State responded that "the summary of the conversation" was contained within Officer Salvage'spolice report, which had been disclosed to defendant prior to trial.

Officer Salvage's police report states in relevant part as follows:

"After a prearranged phone call between UCO Salvage and[defendant,] a mobile and stationary surveillance had been establishedin the area, this UCO then approached the area and parked her UCVat the prearranged parking lot (4713 S. Justine). UCO waited in thislot approx. 15 minutes from phone call, when UCO Salvage was metby [defendant] and [codefendant] Pico who pulled up in a white 4door car. UCO Salvage was approached by both offenders and askedby [defendant] 'how much coke (street term for cocaine) do youwant'? [sic] UCO Salvage said, '3 oz's['] (street term for 28 gramswhich is an ounce of cocaine)."

The trial court overruled defendant's objection, noting:

"I have considered first of all I don't see a surprise to thedefense, in that they were apprized that there had been a conversationbetween this witness and the defendant. And thereafter, somethingelse was set up. I think that you would have the opportunity tointerview this witness if you chose to do so. And I don't see anyprejudice."

Officer Salvage then testified that "the nature of the phone conversation" with defendant was"[s]etting up a drug deal for that day." Officer Salvage testified that she asked defendant if he could"provide [her] with some cocaine." According to Officer Salvage, defendant agreed to provide thecocaine, told Officer Salvage "the amount that it would cost," and selected a time and location forthe transaction. Officer Salvage then proceeded to the arranged location in her undercover vehicle. Defendant arrived at the location a short time later driving a white Chevrolet Celebrity (hereafter,the Chevrolet) with codefendant Pico sitting in the front passenger seat. Defendant and Pico exitedthe Chevrolet and approached Officer Salvage. Defendant asked Officer Salvage how much cocaineshe needed and she asked for three ounces (approximately 84 grams). Defendant then told OfficerSalvage to "give [him] five minutes and [he would] be right back." Pico and defendant then left inthe Chevrolet.

Approximately five minutes later, Pico returned alone in the white Chevrolet, parked andmotioned for Officer Salvage to come to the vehicle. Officer Salvage approached and entered theChevrolet. The prosecuting attorney asked Officer Salvage about a discussion she then had withPico. Defense counsel objected, arguing that any statements made by Pico were inadmissiblehearsay and that the State had not presented sufficient independent evidence of a conspiracy topermit admission of Pico's statement pursuant to the coconspirator exception to the hearsay rule. The trial judge overruled the objection. Officer Salvage proceeded to testify that she asked Pico,"Where the hell is [defendant]?" and Pico responded, "[H]e had shit to do, and *** I am his partner. You can deal with me." Defense counsel renewed his objection, citing People v. Deatherage, 122 Ill. App. 3d 620 (1984) as an analogous case. After reviewing Deatherage, the trial judge found thata joint venture between Pico and defendant had been established by a preponderance of the evidenceand again overruled the objection.

Finally, Officer Salvage testified that Pico exited the Chevrolet, removed a black plastic bagfrom behind the rear driver's side hubcap, and returned to the driver's seat. Pico then removed threesmaller, clear plastic bags which he tendered to Officer Salvage in exchange for $2,500 cash. OfficerSalvage returned to her vehicle with the plastic bags, waited for Pico to leave, and then radioed herteam that "it was a positive narcotics transaction." The three plastic bags were later inventoried atthe police station.

Officer Salvage identified several photographs taken by a surveillance team that were thenadmitted into evidence. Officer Salvage testified that the first photograph depicted defendant andPico in the white Chevrolet when they first arrived at the scene of the narcotics transaction. Thesecond photograph, taken from behind, also depicted defendant and Pico in the Chevrolet. A thirdphotograph revealed the license plate of the white Chevrolet. These photographs were not includedin the record on appeal.

On cross-examination, Officer Salvage was unable to recall the telephone number she hadused to call defendant to arrange the narcotics transaction and admitted that she had no documentaryevidence that the call had been placed. Officer Salvage further admitted that she did not summarizethe content of her telephone conversation with defendant in her written police report. After defensecounsel asked if Officer Salvage had seen any surveillance photograph corroborating her testimonythat defendant and Pico approached the officer's vehicle to negotiate the transaction, the partiesstipulated that no such photograph existed.

Finally, the State submitted into evidence a certified record from the office of the Secretaryof State demonstrating that the white Chevrolet belonged to defendant. The parties then stipulatedthat, if called, forensic scientist Fumi Moka would testify that the plastic bags inventoried by OfficerSalvage contained 84.9 grams of a chunky powder which tested positive for cocaine. The Staterested.

The trial court denied defendant's motion for a directed verdict.

Testifying on his own behalf, defendant denied having a telephone conversation onSeptember 10, 1998, with Officer Salvage regarding a narcotics transaction, denied going to thelocation of the transaction with Pico receiving any money from Pico on that date, and denied that heowned the white Chevrolet on that date. Defendant testified that he had sold the white Chevrolet toPico in August 1998 but, because Pico was paying installments on the price of the vehicle, defendanthad not yet transferred registration of the title to Pico. Defendant denied that he was depicted in theState's photographic exhibits, although he acknowledged that the person depicted "may look like"him. Finally, defendant testified to a series of occurrences that took place in August and September1999 in which defendant, his wife and his two children were photographed in public places bypeople they did not know. On cross-examination, defendant testified that Pico had returned theChevrolet to defendant after the car broke down and that the vehicle is currently stored at defendant'sfather's house. The defense then rested.

The trial court found defendant guilty based on accountability (720 ILCS 5/5-2(c) (West1998)) of delivery of a controlled substance (cocaine) in an amount greater than 15 but less than 100grams (720 ILCS 570/401(a)(2)(A) (West 1998)). The trial court denied defendant's posttrial motion for a new trial and sentenced him to six years' imprisonment. Defendant appeals.

ANALYSIS

I. Failure to Disclose

Defendant first argues that the trial court erred in allowing Officer Salvage to testifyregarding the substance of her telephone conversation with defendant where the State failed toproperly disclose the substance of that conversation despite defendant's written motion pursuant toSupreme Court Rule 412 (134 Ill. 2d R. 412). Supreme Court Rule 412(a)(ii) requires the State,upon written motion of defendant, to disclose "any written or recorded statements and the substanceof any oral statements made by the accused *** and a list of witnesses to the making andacknowledgment of such statements." 134 Ill. 2d R. 412(a)(ii). Supreme Court Rule 412(a)(ii) waspromulgated to protect a defendant against surprise, unfairness, and inadequate preparation. Peoplev. Cisewski, 118 Ill. 2d 163, 172 (1987). While Supreme Court Rule 412(a)(ii) does not require theprosecution to disclose a defendant's oral statements verbatim, the State is obligated to disclose thesubstance of those statements. People v. Hemphill, 230 Ill. App. 3d 453, 464 (1992).

A. Waiver

The State asserts that defendant, by failing to request a continuance, has waived any claimthat the trial court erred in permitting testimony regarding the telephone conversation. Our supremecourt in People v. Robinson, 157 Ill. 2d 68, 78-79 (1993), found that a defendant waived the issueof late disclosure by failing to request a continuance where a continuance would have remedied theproblem of late disclosure. The court reasoned that a "defendant cannot request only the most drasticmeasures, such as either an immediate mistrial or the total exclusion of testimony by a witness, andthen on appeal argue that he is entitled to a new trial when these requests are not granted." Robinson,157 Ill. 2d at 78-79. Defendant contends that "the Robinson decision cites no authority for itsholding and should be limited to its facts." We note, however, that Robinson is a decision of oursupreme court, which we are bound to follow. People v. Tisdel, 316 Ill. App. 3d 1143, 1155 (2000). As nothing in Robinson suggests that the court's holding is limited to the facts of that case andbecause we are bound to follow supreme court precedent, we find Robinson directly applicable inthis case and conclude that the issue is waived. Robinson, 157 Ill. 2d at 78-79.

Defendant further responds that he "gets around the waiver issue" by claiming his counselwas ineffective for failing to request a continuance. Defendant, however, did not assert in hisopening brief that counsel was ineffective for failing to request a continuance but only that counselwas ineffective for failing to investigate the substance of the telephone conversation. Arguments notraised in the appellant's opening brief are waived. 177 Ill. 2d R. 341(e)(7); People v. Berg, 39 Ill.App. 3d 455, 457 (1976).

B. Prejudice

Even had defendant properly preserved for review his challenge based on the State's failureto disclose the telephone statement, he would not have prevailed. It must be noted, we agree withdefendant that Officer Salvage's police report clearly did not satisfy the State's burden underSupreme Court Rule 412(a)(ii). The record demonstrates that Officer Salvage's report disclosedneither the substance of defendant's telephone statement nor a list of witnesses to the making oracknowledgment of the statement, as required under Rule 412(a)(ii). Indeed, Officer Salvageexpressly admitted at trial that she did not summarize the telephone conversation in her police report. The State's suggestion that the substance of the conversation could be inferred from the report'sdescription of the circumstances which developed immediately following the conversation is not welltaken. Supreme Court Rule 412(a)(ii) requires the State to disclose-not merely hint at-the substanceof a defendant's oral statements. See People v. Pasch, 152 Ill. 2d 133, 193 (1992) ("Rule 412 wasnot designed to require defense counsel to make assumptions ***.") "However, the failure to complywith discovery requirements does not in all instances necessitate a new trial." Cisewski, 118 Ill. 2dat 172.

"A new trial should only be granted if the defendant is prejudiced by the discovery violationand the trial court failed to eliminate the prejudice." Cisewski, 118 Ill. 2d at 172. The burden ofshowing surprise or prejudice is upon the defendant. Robinson, 157 Ill. 2d at 78. Among the factorsto be considered in determining whether a new trial is warranted are the closeness of the evidence,the strength of the undisclosed evidence, and the likelihood that prior notice could have helped thedefense discredit the evidence. Cisewski, 118 Ill. 2d at 172.

Here, the evidence of defendant's guilt was not close. Defendant argues that the case turnedon a credibility contest between defendant and Officer Salvage. The record, however, reflects thatno evidence was presented corroborating defendant's testimony. In contrast, Officer Salvage'stestimony was corroborated by: (1) certified records demonstrating defendant's ownership of thewhite Chevrolet Celebrity used in the narcotics transaction; (2) defendant's own testimony that theChevrolet was in his possession and stored at his father's house at the time of trial; and (3)photographs depicting defendant in the driver's seat of the white Chevrolet at the scene of the crime. Although defendant testified that the photographs only depicted someone who "look[ed] like" him,neither the photographs nor evidence of defendant's appearance at the time of trial was made part ofthe record on appeal. Any doubts arising from the incompleteness of the record will be construedagainst defendant whose responsibility it was as appellant to present a complete record on review. People v. Adams, 128 Ill. App. 3d 725, 729 (1984); Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92(1984).

Furthermore, the evidence of defendant's telephone statements was not particularly damaging. Although the statements indicated that defendant agreed to deliver cocaine to Officer Salvage at adesignated time and place, this evidence was merely cumulative. Defendant's agreement to delivercocaine was independently established by Officer's Salvage's testimony that: (1) defendantapproached her vehicle, asked "how much cocaine do you need?"; and (2) when Officer Salvage tolddefendant she wanted three ounces, defendant responded, "give me five minutes and I will be rightback.".

Incredibly, defendant suggests that without the statement made in the telephone conversation,the question in the police report as to how much "coke" Officer Salvage wanted was "meaninglessbecause, without the non-disclosed [sic] statement evidencing knowledge of the illicit nature of thetransaction, the State cannot prove that the 'coke' statement was made with the intent to promote orfacilitate the offense." This court, however, is hardly so naive as to entertain a belief that defendantwas offering to sell three ounces of a brand name cola beverage or bituminous coal residue to arandom motorist. See, e.g., American Heritage Dictionary 290 (2d College ed. 1982) (defining"coke" as: (1) a trademark for a soft drink; (2) a solid carbonaceous residue obtained frombituminous coal; or (3) slang for cocaine).

Finally, defendant failed to establish any likelihood that earlier disclosure would have helpedhim to discredit the evidence against him. In arguing that he was prejudiced, defendant focuses onthe damaging nature of the testimony, arguing that "[w]ithout such evidence, [defendant] is notaccountable for a transaction completed by Mr. Pico." Our inquiry, however, is not whether theevidence itself was damaging (in this sense, all evidence tending to establish guilt is "prejudicial")but rather whether defendant was prejudiced by the State's failure to properly disclose the evidenceprior to trial. Cisewski, 118 Ill. 2d at 172 ("A new trial should only be granted if the defendant isprejudiced by the discovery violation ***" (emphasis added)). Defendant does not suggest howearlier disclosure would have enabled him to discredit Officer Salvage's testimony. Indeed, defensecounsel's failure to request a continuance " 'is persuasive evidence that the prejudice alleged was infact trivial.' " People v. Weaver, 92 Ill. 2d 545, 559 (1982), quoting People v. Foster, 76 Ill. 2d 365,384 (1979).

Even had defendant not waived this issue by failing to request a continuance, after weighingthe relevant factors we would not find that he was prejudiced by the late disclosure.

II. Ineffective Assistance of Counsel

A. Failure to Investigate

Defendant alternately argues that his trial counsel, having received the above-mentionedpolice report, was ineffective for failing to investigate the nature and substance of the telephoneconversation. In order to establish a claim of ineffective assistance of counsel, the defendant mustshow that: (1) counsel's representation fell below an objective standard of reasonableness; and (2)counsel's shortcomings were so serious as to " 'deprive the defendant of a fair trial, a trial whoseresult is reliable.' " People v. Albanese, 104 Ill. 2d 504, 525-27 (1984), quoting Strickland v.Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To meet the second prongof this test, a defendant must demonstrate that there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would have been different. People v. Nieves, 192Ill. 2d 487, 494 (2000). If a defendant's claim of ineffective assistance can be disposed of based ona failure to establish prejudice, then the court need not examine whether counsel's performance wasdeficient. People v. Mahaffey, 194 Ill. 2d 154, 175 (2000).

Even assuming arguendo that defendant's trial counsel fell below an objective standard ofreasonableness by failing to investigate the substance of the telephone conversation, defendant hasfailed to demonstrate that further investigation would have altered the outcome of the trial. Defendant does not suggest and the record does not indicate that further investigation would haveuncovered exculpatory evidence or evidence discrediting Officer Salvage's testimony. Rather,defendant argues that, "[h]ad he known [the substance of the telephone conversation,] he could havebetter evaluated his decision to go to trial" and "could have pursued other avenues, short of trial, inan attempt to avoid a mandatory minimum for a Class X felony conviction." Defendant seems tobe suggesting that, had counsel learned of the substance of the telephone conversation, he could haveadvised defendant to plead guilty in exchange for lesser charges. Nothing in the record demonstratesa reasonable probability that: (1) the State would have been willing to enter into a plea bargain, (2)defense counsel's advice to defendant on this point would have changed had he known the substanceof the conversation; or (3) defendant-who at trial vigorously denied even being present at thetransaction-would have been willing to plead guilty. Defendant's claim of ineffectiveness fails asdefendant has failed to demonstrate that he was prejudiced by counsel's alleged unprofessional error. Nieves, 192 Ill. 2d at 494.

B. Jury Waiver

Defendant argues separately that his trial counsel's ineffectiveness in failing to investigatethe substance of the telephone conversation "rendered defendant's jury waiver invalid." When adefendant's challenge to a jury waiver is predicated on a claim of ineffective assistance of counsel,the court must determine: (1) whether counsel's performance fell below an objective standard ofreasonableness; and (2) "whether there exists a reasonable likelihood that the defendant would nothave waived his jury right in the absence of the alleged error. " People v. Maxwell, 148 Ill. 2d 116,142-43 (1992).

Defendant argues that his trial counsel clearly relied on a technical legal defense thatdefendant's mere presence at the scene was insufficient to establish legal accountability for Pico'sdelivery of the cocaine. According to defendant, Officer Salvage's testimony regarding the substanceof her telephone conversation with defendant "turned a legal issue case into a credibility case." Defendant, quoting People v. Dixon, 184 Ill. App. 3d 90, 99 (1989), notes that "waiver [of the rightto be tried by jury is] a legitimate trial strategy *** [where the] defendant's defense was a verytechnical one and a jury might not fully understand or accept such a defense." Defendant insists thathe was "in effect forced to take a bench trial and forgo a jury based on the mistake of trial counsel,who believed that the defense in the case was a legal one."

While we acknowledge that a jury waiver is a legitimate strategy where the defense istechnical in nature (Dixon, 184 Ill. App. 3d at 99), we are aware of-and defendant points to-noauthority suggesting that a jury waiver is somehow not a legitimate strategy where credibility is atissue. We reject any such contention. Defendant does not and could not persuasively demonstratea "reasonable probability" that a jury would have reached a different conclusion as to credibility thanthat reached by the trial judge. People v. Elliott, 299 Ill. App. 3d 766, 776 (1998).

Further, contrary to defendant's assertion that the undisclosed statement "turned a legal caseinto a credibility case," the record demonstrates that proof of defendant's accountability rested on acredibility determination even without Officer Salvage's testimony regarding the telephoneconversation. To establish defendant's accountability for Pico's delivery of cocaine, the State wasrequired to prove that defendant "[e]ither before or during the [delivery], and with the intent topromote or facilitate [the delivery], *** solicit[ed], aid[ed], abet[ted], agree[d] or attempt[ed] to aid[Pico] in the planning or commission of [the delivery of cocaine]." 720 ILCS 5/5-2(c) (West 1998). Officer Salvage testified at trial (consistent with her previously disclosed police report) thatdefendant had approached her undercover vehicle and asked, "how much cocaine do you need?" Evidence that defendant asked this question undeniably demonstrates defendant's role inintentionally facilitating the narcotics transaction and supports a finding that defendant was legallyaccountable for the sale ultimately consummated by codefendant Pico. Absent evidence regardingthe substance of the telephone conversation, this case still turned on whether the trier of fact foundOfficer Salvage's testimony more credible than defendant's testimony.

Even were we to accept defendant's suggestion that testimony regarding the substance of thetelephone conversation somehow dramatically altered the nature of his defense, defendant has failedto demonstrate "a reasonable likelihood that [he] would not have waived his jury right" had defensecounsel learned the substance of the telephone conversation prior to trial. Maxwell, 148 Ill. 2d at143. Significantly, nothing in the record suggests that defendant chose to waive his right to a jurytrial based on any advice of counsel that the defense in this case rested on a technical legal issuerather than on credibility. Indeed, "the record is silent on the reason for defendant's jury trialwaiver." Elliot, 299 Ill. App. 3d at 774. We reject defendant's claim that counsel's failure toinvestigate invalidated defendant's jury waiver. Maxwell, 148 Ill. 2d at 143.

III. Coconspirator Hearsay

Finally, defendant argues that the trial court erred in allowing Officer Salvage to testifyregarding codefendant Pico's hearsay statement that Pico was defendant's "partner." The declarationsof a coconspirator made in furtherance of the conspiracy are admissible against a defendant upon anindependent, prima facie showing of a conspiracy or joint venture between the declarant anddefendant. People v. Steidl, 142 Ill. 2d 204, 234 (1991). In order to establish a prima facie showingof a conspiracy or joint venture, the State must prove by a preponderance of the evidence(independent of the coconspirator's hearsay statements) that: (1) two or more persons intended tocommit a crime; (2) they engaged in a common plan to accomplish the criminal goal; and (3) an actor acts were done by one or more of them in furtherance of the conspiracy. People v. Roppo, 234 Ill. App. 3d 116, 123 (1992); People v. Barnett, 226 Ill. App. 3d 397, 411 (1992).

The existence of a conspiratorial agreement need not be proven by direct evidence but, rather,may be inferred from all surrounding facts and circumstances, including the acts and declarationsof the accused. People v. Melgoza, 231 Ill. App. 3d 510, 521 (1992). Because of the clandestinenature of conspiracy, Illinois courts permit broad inferences to be drawn from the circumstances,acts, and conduct of the parties. Melgoza, 231 Ill. App. 3d at 523. Coconspirators' "suspiciousactivities together while the illegal transaction was in progress are sufficient to show a joint venturetogether." Melgoza, 231 Ill. App. 3d at 524. It is not mandatory that evidence supporting a primafacie showing of a conspiracy be introduced prior to admission of the coconspirator's hearsaystatement. People v. Goodman, 81 Ill. 2d 78, 284 (1980).

Defendant argues that no evidence was presented independent of Pico's statement whichwould establish a prima facie showing of conspiracy or joint venture. The record, however, beliesdefendant's argument. At trial, Officer Salvage testified that after defendant and Pico pulled up inthe white Chevrolet, the two exited their vehicle and approached the officer. Defendant then asked,"how much cocaine do you need?" When Officer Salvage requested three ounces of cocaine,defendant told her to "give [him] five minutes and [he would] be right back." Pico then returned fiveminutes later, removed three ounces of what later proved to be cocaine from behind the hubcap ofthe white Chevrolet, and completed the transaction with Salvage. Certified records were presenteddemonstrating that defendant is the registered owner of the white Chevrolet. Photographic evidencecorroborated Officer Salvage's testimony by depicting defendant's presence at the scene of the crime.

Defendant argues that mere presence, association, knowledge or approval of a conspiracy isinsufficient to establish that defendant was involved in a conspiracy or joint venture. See People v.Deatherage, 122 Ill. App. 3d 620 (1984); People v. Roppo, 234 Ill. App. 3d 116 (1992). The aboveevidence, however, demonstrates more than defendant's mere presence at the scene of the illegaltransaction. Rather than standing idly by, defendant drove to the arranged location and negotiatedthe amount of cocaine to be sold. Defendant's vehicle was used for concealing the drugs and formaking the final delivery. Defendant's and Pico's suspicious activities together under thecircumstances described are clearly adequate to permit an inference that defendant and Pico wereinvolved in a conspiracy or joint venture to deliver cocaine. Melgoza, 231 Ill. App. 3d 523-24.

Because the State established a prima facie showing of conspiracy by a preponderance of theevidence, the trial court did not err in admitting Pico's statement pursuant to the coconspiratorexception to the hearsay rule.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McNULTY and COUSINS, JJ., concur

1. It is unclear from the record precisely to whom the "we" referred.