United States v. Sepulveda

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Nos. 92-1362
92-1574
UNITED STATES OF AMERICA,
Appellee,

v.

DAVID SEPULVEDA,
Defendant, Appellant.

No. 92-1364
UNITED STATES OF AMERICA,
Appellee,

v.

EDGAR SEPULVEDA,
Defendant, Appellant.

No. 92-1366
UNITED STATES OF AMERICA,
Appellee,

v.

EDWARD W. WELCH, JR.,
Defendant, Appellant.

No. 92-1367
UNITED STATES OF AMERICA,
Appellee,

v.

ARLINE S. WELCH,
Defendant, Appellant.

No. 92-1369
UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN CULLINANE,
Defendant, Appellant.

No. 92-1371
UNITED STATES OF AMERICA,
Appellee,

v.

CHERYL T. JOHNSON,
Defendant, Appellant.

No. 92-1373

UNITED STATES OF AMERICA,
Appellee,

v.

RICHARD F. LABRIE,
Defendant, Appellant.

No. 92-1374

UNITED STATES OF AMERICA,
Appellee,

v.

TONY ROOD,
Defendant, Appellant.

No. 92-1375

UNITED STATES OF AMERICA,
Appellee,

v.

WILLIAM D. WALLACE,
Defendant, Appellant.

Nos. 92-1573
92-1629

UNITED STATES OF AMERICA,
Appellee,

v.

ERNEST F. LANGLOIS,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U. S. District Judge]

Before

Selya, Cyr and Boudin, Circuit Judges.

David H. Bownes, with whom David H. Bownes, P.C. was on

brief, for defendant David Sepulveda.
Julia M. Nye, with whom McKean, Mattson and Latici, P.A. was

on brief, for defendant Edgar Sepulveda.
Stephen A. Cherry, with whom Wright & Cherry was on brief,

for defendant Edward W. Welch, Jr.
Kevin M. Fitzgerald, with whom Peabody & Brown was on brief,

for defendant Arline S. Welch.
Michael J. Ryan, with whom King and Ryan was on brief, for

defendant Kevin Cullinane.
Robert P. Woodward for defendant Cheryl T. Johnson.

Mark H. Campbell for defendant Richard Labrie.

Paul J. Garrity on brief for defendant Tony Rood.

Matthew J. Lahey, with whom Murphy, McLaughlin, Hemeon &

Lahey, P.A. was on brief, for defendant William D. Wallace.

Julie L. Lesher, with whom Murphy, McLaughlin, Hemeon &

Lahey, P.A. was on brief, for defendant Ernest F. Langlois.

John P. Rab for defendant Christopher Driesse (appellant in

consolidated appeal).
Paul J. Haley, with whom Scott L. Hood was on brief, for

defendant Shane Welch (appellant in consolidated appeal).
Kevin M. Fitzgerald, Kevin M. Leach, McLane, Graf, Raulerson

& Middleton, Peabody & Brown and David H. Bownes on omnibus

briefs for all appellants.
Terry L. Ollila, Special Assistant United States Attorney,

with whom Peter E. Papps, United States Attorney, and Jeffrey S.

Cahill, Special Assistant United States Attorney, were on brief,

for appellee.

December 20, 1993

SELYA, Circuit Judge. These appeals, arising out of
SELYA, Circuit Judge.

the drug-trafficking convictions of a dozen New Hampshire

residents, suggest that while two New Hampshiremen might once

have been a match for Satan, see Stephen Vincent Benet, The Devil

and Daniel Webster (1937), times have changed. The tale follows.

I. BACKGROUND

During a two-month trial in the district court, the

government mined a golconda of evidence. Because it would serve

no useful purpose to recount the occasionally ponderous record in

book and verse, we offer instead an overview of the evidence,

taken in the light most compatible with the guilty verdicts. See

United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert.

denied, 113 S. Ct. 1005 (1993). Further facts will be added as

we discuss specific issues.

For almost six years, David Sepulveda conducted an

increasingly sophisticated cocaine distribution business in and

around Manchester, New Hampshire. Initially, Sepulveda purchased

cocaine from a vendor in Nashua, New Hampshire, and transported

it to Manchester himself. Over time, Sepulveda expanded his

operation, increasing the volume of cocaine and engaging others

to handle tasks such as pickup, delivery, and street-level sales.

As his enterprise grew more ambitious, Sepulveda began

purchasing cocaine from a source in Lawrence, Massachusetts.

Faced with the need to retain control while insulating himself

from the prying eyes of law enforcement personnel, Sepulveda's

journeys to Lawrence became an elaborate ritual in which he would

4

scrupulously avoid carrying drugs or travelling in the same car

with the cocaine that he purchased. On these provisioning trips,

Sepulveda was usually accompanied by his brother, Edgar, and a

"runner," that is, an individual who would actually transport the

cocaine from Lawrence to Manchester.1 Frequently, one of

Sepulveda's distributors or a user in a particular hurry to

obtain fresh supplies would join the troupe.

Once the cocaine arrived in Manchester, Sepulveda and

his associates packaged it in street-level quantities and

distributed it to a series of individuals for resale and personal

use. The buyers included, among others, defendants Edward W.

Welch, Jr., Arline S. Welch, Shane Welch, Kevin Cullinane,

Christopher Driesse, Cheryl T. Johnson, Richard E. Labrie, Tony

Rood, and William D. Wallace. David Sepulveda made a practice of

directing persons who inquired about purchasing small amounts of

cocaine to these same individuals.

Eventually, David Sepulveda's reach exceeded his grasp.

A federal grand jury indicted him, along with others, for drug

trafficking; and, after trial, a petit jury convicted twelve

persons, viz., the Sepulveda brothers, the three Welches,

Cullinane, Driesse, Johnson, Labrie, Rood, Wallace, and Langlois,

on a charge of conspiracy to possess and distribute cocaine. See

21 U.S.C. 846 (1988). The jury also convicted David Sepulveda

on a charge of engaging in a continuing criminal enterprise. See

1At various times, defendants Tony Rood and Ernest F.
Langlois worked as runners. At other times, Norberto Perez
played this role.

5

21 U.S.C. 848 (1988). Twenty-six appeals ensued.

It is no exaggeration to say that the defendants,

represented by able counsel, managed to cultivate a profusion of

variegated grounds for appeal from the peat of the protracted

trial. Because of the sheer bulk and complexity of the

proceedings, we issued a special briefing order and then heard

oral argument on all twenty-six appeals. We decide today twelve

appeals taken by ten defendants (collectively, "the

appellants").2 After sifting what grains we can locate from the

considerable chaff, we conclude that the appellants enjoyed a

fair, substantially error-free trial, and that their convictions

must stand. In two instances, however, we vacate particular

sentences and remand for further proceedings.

II. SUFFICIENCY OF THE EVIDENCE

Four appellants claim that the evidence is

insufficient, as a matter of law, to support their convictions.3

Because insufficiency claims are commonplace in criminal appeals,

the standard of appellate oversight lends itself to rote

2The appeals taken by defendants Christopher Driesse and
Shane Welch following the trial present certain unique issues and
those two appeals will be resolved in a separate opinion. In
addition, after the original round of appeals had been docketed,
all twelve defendants moved to vacate judgment on the basis of
newly discovered evidence. The court below denied relief and a
fresh battery of appeals ensued. Those twelve late-blooming
appeals were argued in tandem with the fourteen earlier appeals
and will be disposed of in a third opinion.

3We do not include under this rubric appellants Edgar
Sepulveda and Tony Rood, both of whom argue that the government
failed to present sufficient evidence to show their participation
in the single "master conspiracy" charged in the indictment.
Instead, we treat with those claims in Part IX, infra.

6

recitation. Following a guilty verdict, a reviewing court must

scrutinize the record, eschewing credibility judgments and

drawing all reasonable inferences in favor of the verdict, to

ascertain if a rational jury could have found that the government

proved each element of the crime beyond a reasonable doubt. See

United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993);

Ortiz, 966 F.2d at 711; United States v. David, 940 F.2d 722, 730

(1st Cir. 1991) (collecting cases), cert. denied, 112 S. Ct. 2301

(1992). To sustain a conviction, the court need not conclude

that only a guilty verdict appropriately could be reached; it is

enough that the finding of guilt draws its essence from a

plausible reading of the record. See Echeverri, 982 F.2d at 677;

Ortiz, 966 F.2d at 711.

Here, the challenged convictions center around a charge

of conspiracy to possess and distribute cocaine. To prove a drug

conspiracy charge under 21 U.S.C. 846, the government is

obliged to show beyond a reasonable doubt that a conspiracy

existed and that a particular defendant agreed to participate in

it, intending to commit the underlying substantive offense (here,

possession of cocaine with intent to distribute, 21 U.S.C.

841(a)(1)). See David, 940 F.2d at 735; United States v.

Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denied, 111 S.

Ct. 1625 (1991); United States v. Rivera-Santiago, 872 F.2d 1073,

1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989). There are no

particular formalities that attend this showing: the agreement

may be express or tacit and may be proved by direct or

7

circumstantial evidence. See Echeverri, 982 F.2d at 679; Rivera-

Santiago, 872 F.2d at 1079. Moreover, in a criminal conspiracy,

culpability may be constant though responsibilities are divided;

the government does not need to show as a precursor to a finding

of guilt that a given defendant took part in all aspects of the

conspiracy. See United States v. Benevides, 985 F.2d 629, 633

(1st Cir. 1993); United States v. Cruz, 981 F.2d 613, 617 (1st

Cir. 1992). Using these guideposts, we find that the quantum of

evidence presented against each of the four challengers suffices.

A. Arline Welch.

Four witnesses provided the bulk of the evidence

regarding Arline Welch's role in the conspiracy. Kurt Coriaty

testified that he had purchased cocaine from her both in her home

and in his, particularly after her husband, Edward Welch, was

imprisoned. Coriaty's partner, Kenneth Milne, stated that Arline

Welch gave him cocaine at her home and was present when he

purchased cocaine from Edward Welch at the Welch residence.

While mere presence is not sufficient to ground criminal charges,

a defendant's presence at the point of a drug sale, taken in the

light of attendant circumstances, can constitute strong evidence

of complicity. See Ortiz, 966 F.2d at 711-12.

The jury also heard Norberto Perez explain that Arline

Welch accompanied David Sepulveda on three buying expeditions to

Lawrence, Massachusetts. Perez testified that, in expressing

anxiety, she made manifest her awareness of the trips' purpose,

voicing statements like: "Let's hurry up and get this cocaine so

8

we can get out of here." Furthermore, Randall Vetrone testified

that Arline Welch was present in Edgar Sepulveda's apartment

while the Sepulveda brothers packaged and sold cocaine.

Appellant's consensual presence in a private home, not her own,

while large quantities of drugs were being packaged for resale,

possessed evidentiary significance. From this fact, coupled with

other contextual detail (much of it inculpatory), the jury

reasonably could have inferred that she was a member of the ring.

See Ortiz, 966 F.2d at 712 (pointing out that criminals rarely

seek to expose their felonious activities to innocent outsiders,

where such exposure could easily be avoided); United States v.

Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991) (to like

effect).

Keeping in mind the maxim that "criminal juries are not

expected to ignore what is perfectly obvious," Echeverri, 982

F.2d at 679, the testimony of these four witnesses and the

reasonable inferences to be drawn therefrom formed a serviceable

predicate upon which to rest a conviction for conspiracy to

distribute cocaine.4 Accordingly, the district court did not err

in denying Arline Welch's motion for judgment of acquittal.

B. Kevin Cullinane.

Daniel Santos, a quondam partner of Cullinane's in the

4We give short shrift to Welch's argument, echoed at various
times by other appellants, that, because some of the government's
witnesses anticipated receiving reduced sentences in exchange for
cooperation, their testimony should be regarded as inherently
unreliable. When an appellate court reviews the sufficiency of
the evidence, it must resolve routine credibility questions in
favor of the verdict. See David, 940 F.2d at 730.

9

drug distribution trade, testified that Cullinane introduced him

to David Sepulveda and that Sepulveda eventually became a

principal supplier of cocaine to the Cullinane-Santos

partnership. Santos also testified that Cullinane accompanied

Sepulveda on provisioning trips, returning to Santos's apartment

with fresh supplies of contraband. The ubiquitous Norberto Perez

corroborated this relationship, testifying that he had travelled

to Lawrence on at least five occasions in the company of

Cullinane and the Sepulveda siblings in order to replenish

cocaine stores. Perez also recreated a conversation that took

place between Cullinane and Sepulveda involving the former's

indebtedness to the latter for transactions in cocaine.

The government adduced abundant evidence that Cullinane

distributed much of the contraband he acquired. Perez and Santos

both described Cullinane's activities as a vendor. John Rice

testified that Cullinane delivered cocaine to defendant

Christopher Driesse, and that Driesse, in turn, would resell the

drugs. Santos confirmed that Cullinane procured these drugs from

David Sepulveda and that Sepulveda extended credit to Cullinane.

Another witness, David Chase, acknowledged that he had purchased

up to eight kilograms of cocaine from Cullinane before concluding

that, aphorisms about honor among thieves notwithstanding,

Cullinane could not be trusted.5

In view of this plenitudinous testimony, the court

5When Chase and Cullinane fell out, Chase took his business
directly to David Sepulveda.

10

below appropriately derailed Cullinane's quest for acquittal as a

matter of law.

C. Ernest Langlois.

David Sepulveda hired Langlois to be both a drug

courier and a torpedo. Langlois's resounding success in the

latter role intimidating Sepulveda's debtors and, sometimes,

his associates produced a suffusion of testimony limning

Langlois's role in the organization. For instance, David Hill

described four occasions on which Langlois used force, or threats

of force, to collect debts owed to Sepulveda. Two other

witnesses testified that Sepulveda boasted of employing Langlois

as a strongarm to collect drug debts. Another witness overheard

Langlois crowing about the nature of his employment. And no

fewer than six witnesses relayed information from which a

rational jury could infer that Langlois "rode shotgun" during

drug-buying expeditions.

As this partial summary indicates, the evidence

accumulated against Langlois rose well above the level necessary

to sustain the jury's verdict.

D. Cheryl Johnson.

Two witnesses, Santos and Kathy Malone (an undercover

police officer), testified that David Sepulveda sent them to

Cheryl Johnson when they wanted to buy cocaine. Santos said that

he purchased cocaine from Johnson on approximately one hundred

occasions, during which transactions Johnson offhandedly revealed

11

the full extent of her copious cocaine inventory. Malone stated

that she purchased cocaine from Johnson on three occasions.6

Perez testified that he, too, bought cocaine from Johnson,

delivered cocaine to Johnson at Sepulveda's behest, and

accompanied her on at least one buying trip to Lawrence.

Although Johnson argues vehemently that the witnesses

against her were inherently unreliable, courts must leave such

credibility determinations in the jury's domain. See David, 940

F.2d at 730. Here, the jury was at liberty to credit the

testimony, and it, in turn, supplied all the elements necessary

to convict.

III. SEQUESTRATION

Appellants claim that, shortly after sentencing, they

learned for the first time that the government housed three key

witnesses (Perez, Milne, and Coriaty) in the same cell throughout

the trial. Appellants moved for a new trial,7 alleging that the

housing arrangements violated a sequestration order issued by the

district court. The government not only contested appellants'

conclusion but also contested the premise on which the conclusion

6Both Santos and Malone also testified that they bought
cocaine from defendant Richard Labrie at Johnson's abode.

7These motions are separate from, and much earlier in time
than, the motions to which we alluded in note 2, supra.

Nonetheless, these motions, like the later motions, invoked Fed.
R. Crim. P. 33. We grant appellants a considerable indulgence,
assuming arguendo that the information concerning the witnesses'

living arrangements was not discoverable before or during trial
with the exercise of due diligence. See United States v. Slade,

980 F.2d 27, 29 (1st Cir. 1992) (articulating standard); United

States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991) (similar),

cert. denied, 112 S. Ct. 986 (1992).

12

rested, asserting that, though the three men were lodged within

the same cell block, they did not share a cell.

For reasons that are somewhat opaque, the district

court denied the motion without a hearing and without findings

anent the accuracy of appellants' "three to a cell" allegation.

Instead, the court determined that, regardless of the dormitory

arrangements, its sequestration order had not been flouted. It

is against this rather spartan background that we undertake our

analysis.8

A. Rule 615.

The sanctum sanctorum of supervised sequestration

states in its salient segment:

At the request of a party the court
shall order witnesses excluded so that they
cannot hear the testimony of other witnesses,
and it may make the order of its own motion.

Fed. R. Evid. 615. The rule more or less codifies common-law

sequestration powers, but it is at once less discretionary and

less stringent than its forebears. On one hand, the rule cabins

the judge's discretion by affording all parties a right to close

8To recognize that the record sheds no light on the factual
underpinnings of the sequestration dispute is not to imply that
the defense lacked opportunity to explore the possibility of
sequestration violations. During trial, appellants cross-
examined all three witnesses at length, inquiring, inter alia,

whether they had discussed the case with others. The examination
elicited no evidence that the trio traded tales concerning past,
present, or future testimony. Cf. United States v. Eyster, 948

F.2d 1196, 1210 (11th Cir. 1991) (finding that witnesses housed
in the same cell who admitted discussing testimony with each
other violated a sequestration order). Moreover, appellants knew
all along that Perez, Milne, and Coriaty dwelled at the same
penitentiary, yet they made no specific inquiries about the
congregant housing arrangement.

13

the courtroom to prospective witnesses.9 On the other hand,

while the common law supported sequestration beyond the

courtroom, see 6 John Wigmore, Evidence 1840, at 471 n.7 (1976)

(stating that, at common law, the sequestration process involves

three parts: preventing prospective witnesses from consulting

each other; preventing witnesses from hearing other witnesses

testify; and preventing prospective witnesses from consulting

witnesses who have already testified), Rule 615 contemplates a

smaller reserve; by its terms, courts must "order witnesses

excluded" only from the courtroom proper, see Perry v. Leeke, 488

U.S. 272, 281 & n.4 (1989); United States v. Arruda, 715 F.2d

671, 684 (1st Cir. 1983). In sum, the rule demarcates a compact

procedural heartland, but leaves appreciable room for judicial

innovation beyond the perimeters of that which the rule

explicitly requires. See United States v. De Jongh, 937 F.2d 1,

3 (1st Cir. 1991) (stating that district courts possess

"considerable discretion" to fashion orders pertaining to

sequestration).10

9The rule's stringencies in that respect have not been
adopted by all states. See 6 John Wigmore, Evidence 1837, at

458 n.11 (1976); see also id. at 35 (Supp. 1991) (compiling

data). Rather, many states continue to leave sequestration
decisions solely within the judge's discretion. See, e.g., R.I.

R. Evid. 615.

10Citing United States v. Greschner, 802 F.2d 373 (10th Cir.

1986), cert. denied, 480 U.S. 908 (1987), appellants postulate

that Rule 615 requires sequestration beyond the courtroom door.
Although Greschner does equate "circumvention" of Rule 615 with a

violation of the rule itself, it concedes that controlling such
circumvention rests within the district court's discretion a
condition that clearly does not apply to violations of Rule 615
itself. Id. at 375-76. Thus, Greschner fails to support

14

Outside of the heartland, the district court may make

whatever provisions it deems necessary to manage trials in the

interests of justice, see id., including the sequestration of

witnesses before, during, and after their testimony, see Geders

v. United States, 425 U.S. 80, 87 (1976), and compelling the

parties to present witnesses in a prescribed sequence, see United

States v. Machor, 879 F.2d 945, 954 (1st Cir. 1989), cert.

denied, 493 U.S. 1094 (1990). Rule 615 neither dictates when and

how this case-management power ought to be used nor mandates any

specific extra-courtroom prophylaxis, instead leaving the

regulation of witness conduct outside the courtroom to the

district judge's discretion. See United States v. Arias-Santana,

964 F.2d 1262, 1266 (1st Cir. 1992) (explaining that a federal

trial court may enter non-discussion orders at its discretion);

see also Arruda, 715 F.2d at 684 (holding that there was

"technically" no violation of sequestration where witnesses

conversed outside the courtroom).

This is not to say, however, that sequestration orders

which affect witnesses outside the courtroom are a rarity. As a

practical matter, district courts routinely exercise their

discretion to augment Rule 615 by instructing witnesses, without

making fine spatial distinctions, that they are not to discuss

their testimony. Indeed, such non-discussion orders are

generally thought to be a standard concomitant of basic

sequestration fare, serving to fortify the protections offered by

appellants' thesis.

15

Rule 615. See Perry, 488 U.S. at 281-82.

B. Sequestration and Cohabitation.

Here, appellants moved in advance of trial for

sequestration without indicating to the court what level of

restraint they thought appropriate. The court granted the motion

in its simplest aspect, directing counsel "to monitor

sequestration" and ordering "that witnesses who are subject to

[the court's] order are not to be present in the courtroom at any

time prior to their appearance to render testimony." At trial,

the district court expanded its earlier order beyond the Rule 615

minimum, instructing each witness at the close of his or her

testimony not to discuss that testimony with any other witness.

Appellants accepted the conditions of sequestration described by

the court without demurrer. What is more, they did not request

any further instructions, say, that witnesses be directed at the

end of each day, or before each recess, not to discuss their

testimony. Thus, every witness was placed under an order

prohibiting discussion of the case with other witnesses only upon

the completion of his or her testimony.

On these facts, the district court's denial of relief

must be upheld. The court's basic sequestration order, which

ploughed a straight furrow in line with Rule 615 itself, did not

extend beyond the courtroom. There has been no intimation that

the witnesses transgressed this order. Moreover, because the

district court did not promulgate a non-discussion order

applicable to any witness until the conclusion of that witness's

16

testimony, Perez, Milne, and Coriaty were under no obligation,

prior to that moment, to refrain from discussing their

recollections with each other. Finally, there is no evidence

that any of the three ever chatted about the case with another

witness after having been admonished to the contrary or at any

earlier time, for that matter.

Given this predicate, appellants' plaint reduces to the

unprecedented proposition that witness cohabitation constitutes

an automatic violation of a standard sequestration order. The

crux of sequestration, however, is communication between

witnesses, not shared accommodations or geographic proximity.

Social settings, such as communal housing or common work sites,

may offer opportunities for witnesses to compare notes and gossip

about their testimony, but such environments do not ensure that

forbidden conversations will occur. We assume that witnesses,

like all other persons subject to court orders, will follow the

instructions they receive. Cf., e.g., Richardson v. Marsh, 481

U.S. 200, 206 (1987) (reiterating the "invariable assumption of

the law that jurors follow their instructions"). We conclude,

therefore, that the housing arrangement, in and of itself, did

not violate an existing sequestration order.

If doubt inhered and we see no room for any two

other considerations would then be decisive. In the first place,

a district court's interpretation of its own order is customarily

accorded great weight. See, e.g., Witty v. Dukakis, 3 F.3d 517,

521 (1st Cir. 1993); Martha's Vineyard Scuba Hqtrs., Inc. v.

17

Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059,

1066-67 (1st Cir. 1987); Lefkowitz v. Fair, 816 F.2d 17, 22-23

(1st Cir. 1987). Here, the district court ruled that congregant

housing of witnesses did not infringe on the sequestration that

it decreed. When a trial court's interpretation of its own order

tracks plain language and the actual sequence of events, that

interpretation must be honored on appeal.

In the second place, even if some implied ban on

congregant housing of prisoner-witnesses existed, breach of a

sequestration order would not automatically call for a new trial;

rather, the need for a sanction, and the nature of one, if

imposable, are matters committed to the trial court's sound

discretion. See United States v. Rossetti, 768 F.2d 12, 16 (1st

Cir. 1985); Arruda, 715 F.2d at 684. Appellants' failure to

request a broader sequestration order, coupled with the

speculative nature of their claim of actual prejudice, renders it

impossible to find an abuse of discretion here. See, e.g.,

Rossetti, 768 F.2d at 16.

To sum up, our search of the record in this case

discloses no reason to suspect that the government or its

witnesses transgressed the existing sequestration order. And as

we have indicated, if appellants desired a more vigorous

sequestration regime, such as an edict that would have banned

cohabitation or other contact amongst prisoner-witnesses, they

had a duty to ask for it. They failed to do so. Under these

circumstances, the district court appropriately declined to

18

overturn the convictions. See, e.g., De Jongh, 937 F.2d at 3;

Rossetti, 768 F.2d at 16; see also Langel v. United States, 451

F.2d 957, 963 (8th Cir. 1971) (determining that district court's

refusal to restrict witnesses from communicating with other

witnesses, after some had testified, did not constitute error;

defendants made "no showing . . . that Government witnesses did

talk to each other after testifying").

IV. DISPUTES ANENT DISCOVERY

Appellants complain vociferously about the government's

conduct during discovery. The complaints have a modest basis in

fact. Over the course of this logistically complex trial, the

government produced a number of documents in a seemingly

lackadaisical fashion. On each of these occasions, defense

counsel had to scramble in order to assess the nascent discovery

and integrate it into their trial strategy. On other occasions,

the government refused to produce documents that defense counsel

believed were discoverable either as exculpatory material, see

Brady v. Maryland, 373 U.S. 83, 87 (1963), or as fodder for

impeachment, see Giglio v. United States, 405 U.S. 150, 154-55

(1972); see also 18 U.S.C. 3500 (1988) (requiring the

government to disclose, after direct testimony and on the

defendant's motion, any statement by the witness, in the

government's possession, that relates to the subject matter of

the witness's testimony). We discuss these two species of

discovery problems separately.

A. Delayed Discovery.

19

Prosecutors have an obligation to furnish exculpatory

and impeachment information to the defense in a timely fashion.

Although the government's obligation goes beyond the good-faith

requirement of civil discovery, see United States v. Samalot

Perez, 767 F.2d 1, 4 (1st Cir. 1985), its bounds are not

limitless. Patrolling these boundaries is primarily the duty of

the nisi prius court. Because the district judge is better

attuned to the nuances of the trial, this court must take a

deferential view of rulings made in the course of that patrol.

When discovery material makes a belated appearance, a

criminal defendant must ordinarily seek a continuance if he

intends to claim prejudice. A continuance affords time to study

the newly emergent information, consider its possible

ramifications, change trial strategy (if necessary), assess any

potential prejudice, and determine how best to use the

information. As a general rule, a defendant who does not request

a continuance will not be heard to complain on appeal that he

suffered prejudice as a result of late-arriving discovery. See,

e.g., United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991);

see also United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st

Cir.) (concluding, in an analogous context, that a defendant's

cry of unfair surprise "is severely undermined, if not entirely

undone, by his neglect to ask the district court for a

continuance to meet the claimed exigency"), cert. denied, 493

U.S. 862 (1989). Thus, in situations where defense counsel does

not seek a continuance upon belated receipt of discoverable

20

information, a court often can assume that counsel did not need

more time to incorporate the information into the defense's game

plan. See United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.

1986).

This general rule spells defeat for the majority of

appellants' delayed discovery claims. In every instance save

one, appellants eschewed a request for a continuance. They have

never satisfactorily explained how delays in production caused

them any cognizable harm on those several occasions and the

record, which reflects that appellants assimilated the new

material without any perceptible hitch and used it to good

effect, belies any such claim. The lack of demonstrable

prejudice sounds the death knell for a "delayed discovery" claim.

See United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990)

(explaining that a defendant who complains about tardiness in

disclosure "cannot rely on wholly conclusory assertions but must

bear the burden of producing, at the very least, a prima facie

showing of a plausible strategic option which the delay

foreclosed"). Hence, we find appellants' delayed discovery

claims, with one exception, to have been waived.

The facts referable to the remaining dilatory

disclosure claim can be succinctly summarized. Perez not only

worked as a courier for David Sepulveda, but also supported his

own cocaine habit by peddling drugs. After he was apprehended

for selling cocaine, Perez agreed to testify against appellants

in return for the United States Attorney's help in seeking a

21

reduced sentence. Since Perez was the only witness who tied all

the defendants to David Sepulveda's illicit enterprise, his

testimony was extremely important to the government's case.

When defense lawyers began cross-examining Perez, it

became apparent that the FBI records furnished in pretrial

discovery did not list Perez's entire repertoire of criminal

convictions, especially those stemming from state court

proceedings and not reported to the FBI. When Perez acknowledged

that a state probation officer had prepared a presentence report

for a New Hampshire court, appellants asked for a continuance so

that they might obtain this document and more fully research

Perez's criminal history. The district court denied the motion

but offered to permit the defense to recall Perez for further

cross-questioning should the new information warrant it. The

trial continued coincident with the defense's efforts to secure

the presentence report.

After some travail, New Hampshire authorities agreed to

release the report to the federal court in camera. The district

judge found that it contained little fresh material but he

nonetheless issued a turnover order. The defense received the

report while Perez was still on the witness stand. The judge

refused to grant a mistrial or afford appellants any comparable

redress.

We see no error. The prosecution was caught unawares;

it never knew of the report's existence and, therefore, could not

have deliberately withheld it. Furthermore, the rigors of Brady

22

do not usually attach to material outside the federal

government's control and the presentence report at issue here

falls within the scope of this generality. See, e.g., United

States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (holding

that a federal prosecutor had no duty to procure materials

prepared for the state courts which were not otherwise under

federal control).

Last, but far from least, delayed disclosure claims

cannot succeed unless the aggrieved defendant demonstrates

prejudice arising from the delay. See Devin, 918 F.2d at 290

(refusing to reverse conviction where delayed disclosure of

impeachment material "had no effect on the outcome of the

trial"); Ingraldi, 793 F.2d at 411-12 (stating that the critical

test "is whether defendant's counsel was prevented by the delay

from using the disclosed material effectively in preparing and

presenting the defendant's case"). Here, however, the defense's

delayed receipt of the report did not hinder cross-examination to

any appreciable degree. From the start of trial, appellants had

a sizeable storehouse of data concerning Perez's checkered past.

In comparison to what was already known, the report, which

yielded a relatively inconsequential amount of incremental

information, comprised small potatoes. Moreover, the timing of

events minimized the possibility of prejudice. Appellants

received the report while Perez was still testifying. They were

able to incorporate its contents into their cross-examination and

employ the information effectively. For aught that appears, the

23

course and outcome of the trial would have been the same no

matter when the report surfaced.

In our view, the presider's decision to allow a

criminal case to go forward, notwithstanding delayed disclosure

of material relevant to impeachment of a witness, should be

upheld unless a manifest abuse of discretion looms. See Devin,

918 F.2d at 289. On this record, we can neither criticize the

district court's exercise of its informed discretion nor tamper

with the court's bipartite finding that the government violated

no duty and that, in any event, appellants sustained no

cognizable prejudice arising out of the presentence report's

belated emergence.

B. Denied Discovery.

Appellants also complain that the court below, after

scrutinizing certain materials in camera, denied their motion to

compel discovery. The materials in question consist of various

police files, including interview notes. We have reviewed these

materials and agree with the lower court that they are outside

the purview of the Jencks Act, 18 U.S.C. 3500, for two reasons.

First, to be discoverable under the Jencks Act, a government

record of a witness interview must be substantially a verbatim

account. See United States v. Newton, 891 F.2d 944, 953-54 (1st

Cir. 1989). Second, the account must have been signed or

otherwise verified by the witness himself. See United States v.

Gonzalez-Sanchez, 825 F.2d 572, 586-87 (1st Cir.), cert. denied,

484 U.S. 989 (1987). The police files at issue here, including

24

the interview notes, do not meet either of these guidelines and

are, therefore, non-discoverable. A fortiori, the district court

did not blunder in denying access to them.

V. COCONSPIRATORS' STATEMENTS

During the course of trial, the judge allowed several

witnesses to attribute out-of-court statements to one or more

declarants, finding, inter alia, that the declarants were

coconspirators. Appellants assign error.

Although out-of-court statements made by non-testifying

declarants ordinarily are excluded as hearsay if offered to prove

the truth of the matter asserted, see Fed. R. Evid. 801(c), there

are exceptions to the rule. One such exception provides that "a

statement by a coconspirator of a party during the course and in

furtherance of the conspiracy" is not hearsay. Fed. R. Evid

801(d)(2)(E). To invoke the exception, a party who wants to

introduce a particular statement must show by a preponderance of

the evidence that a conspiracy embracing both the declarant and

the defendant existed, and that the declarant uttered the

statement during and in furtherance of the conspiracy. See

Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); Ortiz,

966 F.2d at 714-15. The party at whom the evidence is aimed must

object to the statement when it is offered; and, if the district

court accepts the evidence de bene, must then ask the court at

the close of all the relevant evidence to strike the statement,

i.e., to consider whether the proponent fulfilled the requisite

foundational requirements by a preponderance of the evidence.

25

See Ortiz, 966 F.2d at 715; United States v. Perkins, 926 F.2d

1271, 1283 (1st Cir. 1991); see generally United States v.

Ciampaglia, 628 F.2d 632, 638 (1st Cir.), cert. denied, 449 U.S.

956 (1980); United States v. Petrozziello, 548 F.2d 20, 23 n.3

(1st Cir. 1977).

On five occasions, at least one defendant objected to

testimony anent coconspirators' out-of-court statements.11 We

treat these objections as fully preserved after all, the

district court told counsel that it deemed an objection by one

defendant sufficient to preserve the rights of all defendants

and, accordingly, we plumb the record in an effort to determine

whether any or all of the district court's rulings with respect

to these statements were clearly erroneous. See United States v.

McCarthy, 961 F.2d 972, 977 (1st Cir. 1992); United States v.

Cresta, 825 F.2d 538, 551 (1st Cir. 1987), cert. denied, 486 U.S.

1042 (1988).

We begin by considering three pieces of testimony

recounting out-of-court statements. The common thread that joins

these proffers is that the government adduced some other evidence

tending to prove that the declarants were, in fact,

coconspirators. We then address two pieces of testimony that are

not cushioned in a comparable fashion.

A. Supported Statements.

11On a sixth occasion, defendant Driesse objected to another
statement. Inasmuch as that statement implicated Driesse alone,
we regard the ensuing assignment of error as beyond the scope of
this opinion. See supra note 2.

26

1. Milne Testimony. Milne (a self-confessed
1. Milne Testimony.

coconspirator) served as the wellspring of the first statement.

He testified that a defendant, Edward Welch, told him that the

police noticed cocaine on his (Welch's) bed in the course of

executing a search warrant. The district court found that the

declarant, Welch, was a coconspirator, and that Welch's statement

was made during and in furtherance of the conspiracy. The

finding is fully sustainable.

Both Coriaty and Milne testified that Welch sold them

cocaine he had purchased from David Sepulveda (an arrangement

that numerous other witnesses corroborated). This evidence

encourages, if it does not demand, the conclusion that Welch

worked hand in glove with Sepulveda. A pattern of drug sales

between two individuals, looking toward resale to third persons,

together with appropriate contextual detail, can support a

finding that the two individuals were jointly involved in a drug-

trafficking conspiracy. See United States v. Moran, 984 F.2d

1299, 1303 (1st Cir. 1993); United States v. Glenn, 828 F.2d 855,

857-58 (1st Cir. 1987). The record likewise justifies the

conclusion that Welch's statements to Milne were made during and

in furtherance of the conspiracy. We think it is common ground

and common sense that the reporting of significant events by

one coconspirator to another advances the conspiracy. See United

States v. Smith, 833 F.2d 213, 219 (10th Cir. 1987).

2. Rice Testimony. Another government witness, John
2. Rice Testimony.

Rice, testified that one defendant, Driesse, mentioned that a

27

second defendant, Rood, sold cocaine for the Sepulveda brothers.

The jury found both Driesse and Rood guilty of the conspiracy

charge, and the record gives considerable definition to both

men's links to the drug ring. And, moreover, since the sharing

of pertinent information about a conspiracy's mode of operation

furthers the conspiratorial ends, see United States v. Munson,

819 F.2d 337, 341 (1st Cir. 1987), Driesse's statement concerning

drug sales assisted the charged conspiracy by informing other

coconspirators of Rood's role and activities.

3. Malone Testimony. A third statement came in
3. Malone Testimony.

through a police officer, Kathy Malone, who made a number of

undercover buys from Sepulveda-supplied vendors. She testified

that David Sepulveda's inamorata, Bambi Burley, told her that she

(Bambi) had jilted Sepulveda and asked whether Malone might be

"one of those girls that went to New York with him." Appellants

challenge the admission of this statement on the sole ground that

Burley, herself, was a stranger to the charged conspiracy.

However, this challenge overlooks Perez's testimony that he

collected drug debts for David Sepulveda and delivered the money

to Burley. While there is hardly a profusion of evidence

depicting Burley as a coconspirator, there is enough to withstand

clear error review.12

12It seems problematic whether these statements furthered
the conspiracy. We need not mull this question, however, as
appellants did not advance this ground either in the lower court
or in their briefs. The issue is, therefore, waived. See United

States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992). In all events,

the statements seem harmless.

28

B. Unsupported Statements.

The two additional instances in which the court below

admitted statements under the coconspirator exception despite

contemporaneous objection are qualitatively different. In each

instance, there appears to be no record evidence, other than the

statement itself, to support its admissibility.

One statement arose during the government's examination

of a police detective, Mark Putney. The detective testified

that, while executing a search warrant at a dwelling occupied by

defendant Cheryl Johnson and her husband, Brian, he answered the

telephone:

The male caller asked if Brian was home. I
stated I was Brian. The caller stated did
you pick up the stuff. I said I did. The
caller asked if he could come over and pick
up a half. I stated sure, come on over.

The other statement occurred during direct examination

of Joseph Baranski. Baranski testified that he sometimes

provided transportation for people going to David Sepulveda's

house and that, on occasion, his passengers would tell him that

they were visiting Sepulveda because "they wanted to buy some

drugs."

Our review of the record has deterrated no extrinsic

evidence tending to show that these out-of-court declarants (the

unidentified caller to the Johnson residence and the unidentified

passengers in Baranski's vehicle) were involved in the

conspiracy, and the government has directed us to no such proof.

Following the Supreme Court's landmark opinion in Bourjaily, and

29

Justice Stevens's concurrence, 483 U.S. at 185 & n.2, several of

our sister circuits have concluded that the preponderance of

evidence required for the introduction of an out-of-court

statement under Rule 801(d)(2)(E) must necessarily comprise more

than the weight of the statement itself. See, e.g., United

States v. Gambino, 926 F.2d 1355, 1361 n.5 (3d Cir.), cert.

denied, 112 S. Ct. 415 (1991); United States v. Garbett, 867 F.2d

1132, 1134 (8th Cir. 1989); United States v. Silverman, 861 F.2d

571, 577 (9th Cir. 1988); United States v. Zambrana, 841 F.2d

1320, 1344-45 (7th Cir. 1988); see also United States v. Daly,

842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988).

We have not yet spoken to the point. See, e.g., United States v.

Dworken, 855 F.2d 12, 25 (1st Cir. 1988) (deferring resolution).

This case presents the issue squarely and requires that

we decide it. We hold that a coconspirator's statement, standing

alone, is insufficient to meet the preponderance standard of Rule

801(d)(2)(E). In other words, to satisfy the weight-of-the-

evidence criteria for that hearsay exception, there must be some

proof aliunde. Though the district court may consider a

statement's contents and the circumstances attending its

utterance when gauging the statement's reliability, see United

States v. Gomez-Pabon, 911 F.2d 847, 856 n.3 (1st Cir. 1990),

cert. denied, 498 U.S. 1074 (1991), admitting the statement into

evidence requires some extrinsic proof of the declarant's

involvement in the conspiracy. Thus, because the government

developed no independent evidence of who Brian Johnson's callers

30

or Joseph Baranski's passengers might have been, or what their

status might have been vis-a-vis the charged conspiracy, the

statements were improperly admitted under the coconspirator

exception to the hearsay rule.13

There is no bright-line rule for divining when

particular errors that result in a jury's exposure to improper

evidence are (or are not) harmless. Rather, a harmlessness

determination demands a panoramic, case-specific inquiry

considering, among other things, the centrality of the tainted

material, its uniqueness, its prejudicial impact, the uses to

which it was put during the trial, the relative strengths of the

parties' cases, and any telltales that furnish clues to the

likelihood that the error affected the factfinder's resolution of

a material issue. Gearing our inquiry along these lines, we

conclude that the errors in admitting the statements are benign.

The telephone talk concerned a peripheral matter, for Brian

Johnson was not on trial. Furthermore, several witnesses

testified at first hand that his wife and housemate, appellant

Cheryl Johnson, trafficked in cocaine. See supra Part II(D).

The passengers' remarks constituted cumulative evidence. They

13We do not mean to imply that the evidence might not have
been introduced for some other purpose. Suppose, for example,
that the telephone calls Putney received were not offered to show
that someone in fact sought to buy drugs from Brian Johnson, but,
rather, to show the types of telephone calls the Johnsons
received. If admissible on that basis, the statements would not
be excludable as hearsay. See Fed. R. Evid. 801(c); see also

United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989)

(upholding admission of out-of-court statement to show motive,
not for the truth of the matter asserted).

31

inculpated only David Sepulveda, and a googol of witnesses tabbed

Sepulveda as a large-scale narcotics distributor who made

countless cocaine sales. Several of these witnesses swore that

they personally purchased drugs from him. Against this tidal

wave of evidence, Baranski's testimony was a drop in the

proverbial bucket. Because the record offers every assurance

that the errant statements did not affect the trial's outcome,

they were harmless.14 See United States v. Ladd, 885 F.2d 954,

957-58 (1st Cir. 1989); Dworken, 855 F.2d at 26.

VI. EXPERT TESTIMONY

At trial, the government's case culminated in the

testimony of Commander Richard Gerry of the New Hampshire Drug

Task Force. Before Commander Gerry testified, the prosecutor

told the court that Gerry's views would be based upon the trial

testimony and his experience as a police officer, and predicted

that Gerry would "explain to the jury how the quantities of drugs

. . . referred to in the . . . testimony at trial [were] used and

distributed . . . from the business aspect." Based on this

representation, the court denied appellants' motion in limine and

permitted the witness to testify.

14Appellants also assign error to four statements that were
admitted without objection. Absent a showing of plain error, the
failure to object below is fatal to claims that particular
evidence should not have reached the jury. See Ortiz, 966 F.2d

at 715; Perkins, 926 F.2d at 1283; see also Fed. R. Evid. 103(a).

We find no plain error in connection with the admission of the
four statements; their introduction, whether viewed singly or in
combination, did not "seriously affect the fundamental fairness
and basic integrity of the [trial]," United States v. Griffin,

818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. 844 (1987),

or otherwise impair appellants' substantial rights.

32

In the initial stages, the testimony went according to

plan: Commander Gerry discussed the ways in which drug dealers

commonly package their products and reviewed the economics of the

cocaine trade (illustrating the profit to be gained by buying and

selling in various quantities). Despite this promising start,

matters soon deteriorated. Although Commander Gerry offered

opinions as to appellants' roles in the enterprise,

characterizing David Sepulveda as "top dog" and the others as

rank-and-file members of the organization, cross-examination

revealed that these opinions were less the fruit of an expert

mind attuned to the testimony in the case than the yield of

undifferentiated conversations over the years with unidentified

police officers regarding Sepulveda and his associates. So

ingrained were the roots of Commander Gerry's opinions that he

was unable to specify the sources of his information or, in the

end, articulate a plausible basis for his views. The speculative

nature of Gerry's testimony became starkly apparent when the

defense established that he had heard only bits and pieces of the

testimony in the case. These rather startling insights cast

grave doubt upon both the adequacy of the foundation on which

Gerry's testimony rested and the existence of a fair opportunity

for effective cross-questioning.

Midway through cross-examination the defense moved to

strike the expert's testimony in toto. The district court

granted the motion. We think the defects in the expert's

presentation warranted this step. Fed. R. Evid. 705 provides in

33

pertinent part that an expert witness "may . . . be required to

disclose [on cross-examination] the underlying facts or data" on

which his opinions rest. If cross-examination reveals that the

opinions advanced by an expert rest on a wholly inadequate

foundation, the judge, on timely motion, may strike the

testimony. See, e.g., United States v. Scop, 846 F.2d 135, 142-

43 (2d Cir. 1988); Benjamin v. Peter's Farm Condo. Owners Ass'n,

820 F.2d 640, 641 (3d Cir. 1987); see also 3 David W. Louisell et

al., Federal Evidence 400, at 709-10 (1979).

The district judge also told the jury to disregard the

offending testimony "entirely." His instruction was firm, clear,

and to the point. Appellants neither objected to its form nor

sought to have the judge improve upon it. The next day, however,

appellants moved for a mistrial. The judge denied the motion.

On appeal, appellants lament the denial of both their original

motion in limine and their subsequent motion for a mistrial.

A. The Motion in Limine.

The admission of expert testimony is governed by Fed.

R. Evid. 702, which authorizes the district court to admit such

testimony if, and to the extent that, it will "assist the trier

of fact to understand the evidence or to determine a fact in

issue . . . ." Id. Because gauging an expert witness's

usefulness is almost always a case-specific inquiry, the law

affords trial judges substantial discretion in connection with

the admission or exclusion of opinion evidence. See Apostol v.

United States, 838 F.2d 595, 599 (1st Cir. 1988); United States

34

v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987); see also 3 Jack

Weinstein & Margaret A. Berger, Weinstein's Evidence 702[02] at

702-22 to 702-23 (1993). It follows that a trial judge's rulings

in this sphere should be upheld "unless manifestly erroneous."

Salem v. United States Lines Co., 370 U.S. 31, 35 (1962); see

also Hoffman, 832 F.2d at 1310 (explaining that "the district

court's assessment of what will or will not assist the jury is

entitled to considerable deference in the Rule 702 milieu").

Given the government's preliminary proffer, there was

no need for outright exclusion of the anticipated testimony. The

Supreme Court has recently reaffirmed that when a party proffers

an expert, the trial judge performs a gatekeeping function,

determining whether it is reasonably likely that the expert

possesses specialized knowledge which will assist the trier

better to understand a fact in issue. See Daubert v. Merrell Dow

Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993). The

witness's opinions need "not [be] based on first-hand knowledge

or observation." Id. at 2796.

Seen in light of these authorities, the district court

had a reasonable basis for allowing the expert to testify. If

Commander Gerry's pedagogy proved to be as advertised, his

testimony arguably would have assisted the jury in understanding

the voluminous evidence that had emerged. Experienced

investigators are commonly permitted to testify as experts on

topics such as the structure of a criminal enterprise, the

economics of the drug trade, and the handling of contraband.

35

See, e.g., United States v. Angiulo, 897 F.2d 1169, 1188-89 (1st

Cir.) (allowing veteran FBI agent to offer opinions, based mainly

on information presented at trial, about defendants' roles in

gambling ring), cert. denied, 498 U.S. 845 (1990); Ladd, 885 F.2d

at 959 (allowing experienced police officer to testify about

methods of packaging and processing heroin, and relationship to

distribution venture); United States v. Angiulo, 847 F.2d 956,

973-75 (1st Cir.) (allowing suitably credentialed agent to offer

expert opinions about structure and operation of La Cosa Nostra,

including defendants' relationships to that organization), cert.

denied, 488 U.S. 928 (1988); Hoffman, 832 F.2d at 1310 (allowing

knowledgeable federal agent to testify as an expert on the

practices and idiom of the cocaine community).

In sum, the lower court's denial of the motion in

limine cannot be faulted. The unhappy fact that, in hindsight,

the expert turned out to be a dud does not retroactively negate

the lawfulness of the court's original ruling. Trial judges,

whose lot is often to make swift battlefield decisions on tangled

evidentiary matters, cannot be expected to foretell the future

with absolute accuracy.15

B. The Motion for Mistrial.

15When uncertainty attends a proffer of opinion evidence,
voir dire screenings are standard fare. See, e.g., Tokio Marine

& Fire Ins. Co. v. Grove Mfg. Co., 958 F.2d 1169, 1175 & n.4 (1st

Cir. 1992); Freeman v. Package Mach. Co., 865 F.2d 1331, 1337

(1st Cir. 1988); cf. United States v. Griffin, 818 F.2d 97, 105

(1st Cir.) (discussing utility of voir dire in an analogous

context), cert. denied, 484 U.S. 844 (1987). But although

appellants moved in limine to forfend Gerry's testimony, they

apparently never sought permission to conduct a voir dire.

36

Appellants' next assignment of error presents a

slightly closer question. Although the district court struck

Commander Gerry's half-completed testimony and told the jurors to

disregard what they had heard, appellants assert that the court

erred in refusing to grant a mistrial. At the core of

appellants' argument lies their insistence that the judge did no

more than hold a farthing candle to the sun; once Gerry's views

were aired, words from the bench, no matter how stentorian the

judge's tone, could not exorcise the resultant prejudice.

Granting or denying a motion for a mistrial is a matter

committed to the trial court's discretion. See De Jongh, 937

F.2d at 3; United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.),

cert. denied, 459 U.S. 1043 (1982). The exercise of that

discretion always must be informed by the circumstances of the

particular case. When, as now, a motion to declare a mistrial

has its genesis in a claim that improper evidence came before the

jury, the court must first weigh the claim of impropriety and, if

that claim is well founded, strike the offending evidence. Next,

unless the court believes that the evidence is seriously

prejudicial and that a curative instruction will be an

insufficient antidote, the court should proceed with the trial

after instructing the jury to disregard the evidence. Declaring

a mistrial is a last resort, only to be implemented if the taint

is ineradicable, that is, only if the trial judge believes that

the jury's exposure to the evidence is likely to prove beyond

realistic hope of repair.

37

In this instance, Judge Devine followed the standard

paradigm as closely as possible, considering appellants' delay in

offering the mistrial motion. Three factors persuade us that he

handled the situation in an appropriate manner. First, courts

have long recognized that, within wide margins, the potential for

prejudice stemming from improper testimony or comments can be

satisfactorily dispelled by appropriate curative instructions.

See, e.g., United States v. Figueroa, 900 F.2d 1211, 1216 (8th

Cir.), cert. denied, 496 U.S. 942 (1990); United States v.

Ferreira, 821 F.2d 1, 5-6 (1st Cir. 1987); United States v.

Cirrincione, 780 F.2d 620, 635 (7th Cir. 1985). The instructions

given here pass the test of appropriateness; indeed, appellants

have not suggested any way in which they might have been

improved.

Second, Judge Devine did not allow sores to fester.

Rather, he halted Commander Gerry's testimony in midstream and

instructed the jurors to discard the faulty evidence. Swiftness

in judicial response is an important element in alleviating

prejudice once the jury has been exposed to improper testimony.

See, e.g., United States v. Pryor, 960 F.2d 1, 2-3 (1st Cir.

1992); United States v. Hernandez, 891 F.2d 521, 523 (5th Cir.

1989), cert. denied, 495 U.S. 909 (1990). In this case, the

judge could scarcely have acted more celeritously.

Third, appellate courts inquiring into the

effectiveness of a trial judge's curative instructions should

start with a presumption that jurors will follow a direct

38

instruction to disregard matters improvidently brought before

them. See United States v. Olano, 113 S. Ct. 1770, 1781 (1993);

Richardson, 481 U.S. at 206. Though rebuttable, the presumption

endures unless it appears probable that, in a particular case,

responsible jurors will not be able to put the testimony to one

side, and, moreover, that the testimony will likely be seriously

prejudicial to the aggrieved party. See United States v. Paiva,

892 F.2d 148, 160 (1st Cir. 1989) (collecting cases).

Read as a whole, Commander Gerry's partially completed

testimony does not strike us as so compelling that its impact

would linger even after the court's stern admonition. The

testimony is virtually indistinguishable from the vast array of

other evidence introduced by the prosecution, and, therefore, it

is of the cumulative vintage.16 We have routinely found

cumulative evidence impotent when accidentally uncorked. See,

e.g., United States v. Ellis, 935 F.2d 385, 393 (1st Cir.), cert.

denied, 112 S. Ct. 201 (1991); United States v. Morris, 700 F.2d

427, 431 (1st Cir.), cert. denied, 461 U.S. 947 (1983). So it is

here. Appellants have not successfully rebutted the presumption

that the jury heeded the judge's instructions.

In a last-ditch effort to save the day, appellants come

at the question of undue prejudice from a slightly more oblique

16It is, perhaps, worth noting that the only defendant
discussed in any detail by the witness was David Sepulveda a
defendant as to whom the prosecution adduced overwhelming
evidence of guilt. We add that, although there were different
quanta of evidence as to each defendant, a painstaking review of
the record inspires confidence that Gerry's testimony had no
significant spillover effect vis-a-vis other defendants.

39

angle. They allege that the government's questioning of

Commander Gerry went so far beyond the limits of propriety that

putting him on the witness stand amounted to prosecutorial

misconduct. But the record simply does not support this

accusation. The government had a reasonable basis for offering

Gerry as an expert witness. Although the decision did not pan

out, that is no reason to consign either the prosecutor or the

prosecution to the juridical equivalent of philotheoparoptesism.

Like judges, prosecutors cannot be held to a standard of utter

prescience.17

For these reasons, we discern no abuse of discretion in

either the district court's initial admission of Commander

Gerry's testimony or the court's refusal to declare a mistrial

after the necessity to strike the testimony arose. In a

nutshell, there was no reason to believe that the infelicitously

offered evidence remained in the jurors' minds after it was

banished from the case, and, consequently, no need for the court

to jettison the baby when the bath water turned tepid.

VII. CLOSING ARGUMENT

Appellants contend that the prosecutors' comments

17Moreover, if blame is to be assigned, appellants must
share in it. They could have, but did not, ask for a voir dire.

See supra note 15. A party who elects not to request voir dire

of an opponent's expert runs certain risks. When a predictable
risk materializes, there is little incentive for courts to be
sympathetic. Cf., e.g., Paterson-Leitch Co. v. Massachusetts

Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988)

("Courts, like the Deity, are most frequently moved to help those
who help themselves.").

40

during closing argument constituted reversible error because some

statements spotlighted appellants' joint decision not to testify

and others unfairly inflamed the jury's passions.18 Although

these contentions are obviously related, we analyze them

separately.

A. Comments on Defendants' Silence.

We begin with bedrock. The Fifth Amendment forbids any

comment by the prosecutor on the defendant's exercise of the

right to remain silent. See United States v. Robinson, 485 U.S.

25, 30 (1988); Griffin v. California, 380 U.S. 609, 615 (1965).

The proposition is more easily stated than applied. There is no

bright line marking the precipice between a legitimate assessment

of defense witnesses and an impermissible encroachment upon the

accused's silence. Prosecutors who choose to explore such rugged

terrain must take particular care not to comment upon, or call

the jury's attention to, a defendant's failure to take the

witness stand. See United States v. Lavoie, 721 F.2d 407, 408

(1st Cir. 1983), cert. denied, 465 U.S. 1069 (1984); Rodriguez-

Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969).

Nonetheless, the road runs in both directions, leading

to a rough mutuality of obligation. Defense attorneys have a

responsibility to exercise reasonable vigilance and direct the

trial court's immediate attention to perceived trespasses. See

generally Ortiz, 966 F.2d at 715 (pointing out that "attorneys

18We use "prosecutors" in the plural because one government
attorney delivered the initial summation and another handled
rebuttal.

41

must usually bear the responsibility for preserving their

points"); United States v. Griffin, 818 F.2d 97, 100 (1st Cir.)

(discussing the "obligation to alert the district judge to error-

in-the-making"), cert. denied, 484 U.S. 844 (1987). Although

excessive summations may on rare occasions constitute plain

error, redressable after the fact notwithstanding the absence of

a contemporaneous objection, see, e.g., Arrieta-Agressot v.

United States, 3 F.3d 525, 528 (1st Cir. 1993), a criminal

defendant who believes that a prosecutor's closing argument goes

too far must usually object to the offending statements when and

as they are uttered. See id. In this way, the prosecution can

clarify ambiguities and correct mislocutions in a timely manner,

and, if necessary, the trial judge can administer an immediate

antidote, thereby curtailing any damage.

None of the appellants chose to testify at trial. Yet,

the prosecutors courted trouble in both segments of their closing

argument. Initially, one of them asked rhetorically:

Did anyone come into this courtroom and say
what the Government witnesses told you didn't
happen? Did they? They attacked the
witnesses, the DEA, the police officers, [and
the government attorneys]. . . .

On rebuttal, her colleague expanded upon (and twice repeated) the

same theme:

The United States introduced a lot of
evidence during this trial, a lot of facts.
And for the most part, there is no evidence
in this case to show that what our witnesses
said happened did not happen. That is, the
defendants have done little or nothing to
refute that evidence.

42

* * *

Ladies and gentlemen, we stand on the
evidence, the overwhelming evidence, the
evidence which, for the most part, the
defendants have done absolutely nothing to
refute . . . .

It was only after the jury had been dismissed for the day that

appellants, having sat silently throughout both segments of the

prosecutors' summations, moved for a mistrial based in part on

the quoted statements. The trial court denied the motion as

untimely and sent the case to the jury the next morning. In the

course of the charge, Judge Devine stated on five separate

occasions that the government was responsible for carrying the

burden of proof, that the defendants had the right to remain

silent, and that no inferences might be drawn from the

defendants' election not to testify.19

In assaying the appropriateness of a prosecutor's

remarks, context frequently determines meaning. See, e.g.,

United States v. Young, 470 U.S. 1, 11 (1985); United States v.

Akinola, 985 F.2d 1105, 1111 (1st Cir. 1993); United States v.

Lilly, 983 F.2d 300, 307 (1st Cir. 1992). Once the prosecutor's

words are placed in context, we inquire whether "the language

used was manifestly intended or was of such character that the

jury would naturally and necessarily take it to be a comment on

19To be sure, the judge did not specifically direct the jury
to disregard the comments quoted above. Yet, appellants neither
sought such an instruction nor objected to its absence. A trial
court's failure to launch a limiting instruction sua sponte is

not reversible error. See, e.g., United States v. De La Cruz,

902 F.2d 121, 134 (1st Cir. 1990); Rivera-Santiago, 872 F.2d at

1083.

43

the failure of the accused to testify." United States v. Glantz,

810 F.2d 316, 322 (1st Cir.) (citations omitted), cert. denied,

482 U.S. 929 (1987); see also Lilly, 983 F.2d at 307.20 In

borderline cases, the standard of review can figure importantly.

When no contemporaneous objection appears of record, appellate

review is for plain error. See Arrieta-Agressot, 3 F.3d at 528;

United States v. Smith, 982 F.2d 681, 682 (1st Cir. 1993); see

also Fed. R. Crim. P. 52(b). And in the absence of a

contemporaneous objection it seems fair to give the arguer the

benefit of every plausible interpretation of her words. See

United States v. Donlon, 909 F.2d 650, 656-57 (1st Cir. 1990);

Glantz, 810 F.2d at 323; cf. Robinson, 485 U.S. at 31 (noting

that counsel's failure to object contemporaneously suggests that

the arguer's statement is not ambiguous).

In this case, the prosecutors' remarks, taken in

context and at face value, do not appear to constitute a comment

on the accuseds' silence. The government's closing argument

recounted the evidence against each defendant and, while

admitting that certain prosecution witnesses possessed unsavory

reputations and might profit by cooperation, the prosecutors

urged the jury to find that those witnesses testified truthfully.

Not surprisingly, defense counsels' summations played up the

20In this case, the district court apparently did not
believe that the prosecutors intended the statements as a
reflection on the defendants' failure to testify and appellants
have not imputed so malign a motive to the prosecution team. We
focus, therefore, on what the jury might have taken the
statements to imply.

44

credibility theme, systematically besmirching the reliability of

the government's witnesses, stressing internal inconsistencies,

and outlining perceived conflicts between the testimony of

different witnesses. Throughout, counsel paraded the cooperating

witnesses' criminal records past the jury and made much of what

those witnesses stood to gain by currying favor with the

authorities.

Visualized against this backdrop, and assigning

ordinary words their most natural meaning, the prosecution's

argument that the defense had not successfully rebutted

incriminating evidence seems not to be a comment on appellants'

failure to testify but a comment about the credibility of the

government's case. Arguments of this stripe do not trespass upon

the accused's right to remain silent. See Lockett v. Ohio, 438

U.S. 586, 595 (1978) (finding remarks that evidence was

"unrefuted" and "uncontradicted" not to violate the Fifth

Amendment); see also United States v. Pitre, 960 F.2d 1112, 1124

(2d Cir. 1992) (upholding a prosecutor's comment that defendant

had offered no competing explanation); United States v. Castillo,

866 F.2d 1071, 1083 (9th Cir. 1988) (upholding a prosecutor's

remark about defendant's failure to rebut evidence); United

States v. Borchardt, 809 F.2d 1115, 1119 (5th Cir. 1987)

(similar). Within the bounds of fair play and due process,

prosecutors are not barred from making powerful arguments.

To be sure, it is conceivable that a juror hearing the

prosecutors' words might have interpreted them as a commentary on

45

appellants' joint decision not to testify. But we cannot decide

this case based on what amounts to a doomsday scenario. After

all, an appellate court is not at liberty to "infer that a

prosecutor intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through lengthy exhortation, will

draw that meaning from the plethora of less damaging

interpretations." Lilly, 983 F.2d at 307 (citation omitted); see

also Robinson, 485 U.S. at 31 (explaining "that an appellate

court may [not] substitute its reading of ambiguous language for

that of the trial court"). We are particularly unwilling to fish

in the pool of ambiguity where the defendants did not

contemporaneously object or otherwise bring the district court's

attention to any potentially harmful circumlocution during the

summations. Hence, we rule that the prosecutors' lack-of-

refutation references did not require a mistrial.

B. Inflammatory Statements.

The second half of appellants' challenge to the

government's final argument implicates what appellants

characterize as four attempts to inflame the jury, viz., the

prosecutors' suggestion that the jury could consider the effect

on the community should the Sepulveda organization be able to

continue in business;21 two references to the "war on

21The first prosecutor argued, inter alia:

We put this organization out of business.
And it's up to you to decide that it stays
that way. Because ask yourselves, the
business practices of this organization, this
organized group of drug dealers, what

46

drugs";22 and a monition that feelings of pity should be

subordinated to the call of civic duty.23 Because defendants

failed to object to these remarks when they were voiced, we

review them only for plain error. See Smith, 982 F.2d at 682.

Under that regime, we are constrained to stay our hand unless

improper remarks "so poisoned the well that the trial's outcome

practices will be allowed to continue in the
streets of Manchester and the surrounding
towns of New Hampshire if these people are
allowed or permitted to revive the drug ring
. . . .

22In rebuttal argument, the second prosecutor stated:

It's a sad but true fact of law enforcement,
particularly of this war on drugs, that if
you're going to try to clean out the sewers,
you've got to roll up your sleeves and get
down in with the filth, and, ladies and
gentlemen, I, for one, am proud to have gone
down into those sewers and I'm proud to have
been part of this prosecution team and I'm
proud to be a small part of this war on
drugs.

23In rebuttal, the second prosecutor also suggested:

[I]f perhaps you do feel sorry for anyone,
then what I'm asking you to do, ladies and
gentlemen, is to override any such feelings
with your sense of duty as jurors, with your
sense of responsibility as citizens, and with
your desire to do the job you've sworn to do
in this court of law. And consider this.
During this testimony Kurt Coriaty said that
if he had not been indicted and prosecuted
for his drug dealings, that he would still be
on the street today selling drugs. So ask
yourselves, ladies and gentlemen, if you fail
to do your duty as jurors and find any
defendant not guilty just because you feel
sorry for him, are you doing your community a
service? Are you doing your families a
service? And are you really doing that
defendant a service?

47

was likely affected." United States v. Mejia-Lozano, 829 F.2d

268, 274 (1st Cir. 1987); accord United States v. Mateos-Sanchez,

864 F.2d 232, 240-41 (1st Cir. 1988). None of the quoted

statements comprise plain error in the setting of this trial.

1. Protection of the Community. The first statement,
1. Protection of the Community.

see supra note 21, went too far: prosecutors overreach when they

ask jurors to function as de facto vigilantes. Yet, importantly,

cf. United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984),

there is no sign that the buzznacking about the Sepulveda

organization resuming operations, while gratuitous, was part of a

pattern of remarks specifically intended to inflame the jury.

The reference was not prominently featured in the summation;

rather, it was prefatory, serving to introduce a recitation of

evidence that had been presented at the trial. When, as in this

case, the evidence of defendants' guilt is strong, courts should

be very reluctant to find plain error in misguided rhetoric. See

United States v. Santana-Camacho, 833 F.2d 371, 373-74 (1st Cir.

1987); Mejia-Lozano, 829 F.2d at 274; United States v. Capone,

683 F.2d 582, 586-87 (1st Cir. 1982). So here: we think it is

wildly improbable, given the weight of the evidence, that what we

read as an isolated, relatively subdued appeal for law

enforcement affected the trial's outcome. Consequently, the

resumption-of-business remarks do not furnish a basis for

reversal. See United States v. Smith, 918 F.2d 1551, 1562-63

(11th Cir. 1990); Hernandez, 891 F.2d at 527; United States v.

Monaghan, 741 F.2d 1434, 1441 n.30 (D.C. Cir. 1984), cert.

48

denied, 470 U.S. 1085 (1985).

2. The War on Drugs. A somewhat different set of
2. The War on Drugs.

considerations informs our analysis of the next two passages.

Defense attorneys introduced the phrase "war on drugs" and used

it repeatedly during their opening statements and, later, during

their summations. Mindful of the environment created by the

defense, we cannot say that the government's two rebuttal

references to an ongoing war on drugs, though better left unsaid,

comprised plain error. The ancient adage applies: what is sauce

for the government's goose often may prove to be sauce for the

defendants' gander.

Although we deplore frank appeals to passion of the

sort typified by "war on drugs" rhetoric, see, e.g., Arrieta-

Agressot, 3 F.3d at 527, we regard it as settled that references

to law enforcement efforts are not forbidden in summation if such

references are incited or invited by, or fairly respond to,

defendants' closing statements. See, e.g., Smith, 918 F.2d at

1563; United States v. Brown, 887 F.2d 537, 542 (5th Cir. 1989);

Machor, 879 F.2d at 956; United States v. Bascaro, 742 F.2d

1335, 1353-54 (11th Cir. 1984), cert. denied, 472 U.S. 1017

(1985). Though there may well be exceptions to this rule,24 no

such exceptions lie for cases like this one cases where the

dysphemisms are few in number, do not escalate the level of fire

24We have, for instance, warned prosecutors that "there are
limits to the extent that we will permit fighting fire with
fire." Mejia-Lozano, 829 F.2d at 274. Merely because a defense

attorney opens the door does not mean that a prosecutor can come
storming through it in a pair of hobnailed boots.

49

and brimstone that characterized the defense's oratory, and do

not provoke a contemporaneous objection. See United States v.

Tajeddini, 996 F.2d 1278, 1285 (1st Cir. 1993); Mejia-Lozano, 829

F.2d at 274.

3. Discouraging Sympathy. For somewhat similar
3. Discouraging Sympathy.

reasons, we find the final challenged statement, quoted supra

note 23, to fall within the pale. Viewed in context, this

statement, which questioned whether an acquittal out of sympathy

would be in the community interest, was made to dampen the

defense's flirtation with jury nullification (described infra

Part VIII). Courts should allow prosecutors greater leeway in

rebuttal when the defense has itself breached the standards for

proper summation. See Young, 470 U.S. at 11; Lawn v. United

States, 355 U.S. 339, 359 n.15 (1958); Mejia-Lozano, 829 F.2d at

274; United States v. Flaherty, 668 F.2d 566, 598 (1st Cir.

1981). Applying this offshoot of the goose-and-gander principle,

we hold that the challenged comment did not constitute plain

error.

VIII. JURY NULLIFICATION

The defendants invoked the specter of jury

nullification during final arguments. Labrie's lawyer, in

particular, invited the jury to "send out a question" concerning

this doctrine. Three non-events followed; the government did not

object to this soliloquy, the district court did not intervene

sua sponte, and the court's charge did not broach the subject.

Nevertheless, the deliberating jury took the invitation literally

50

and asked the judge to "[c]larify the law on jury nullification."

The court responded by telling the jury:

Federal trial judges are forbidden to
instruct on jury nullification, because they
are required to instruct only on the law
which applies to a case. As I have indicated
to you, the burden in each instance which is
here placed upon the Government is to prove
each element of the offenses . . . beyond a
reasonable doubt, and in the event the
Government fails to sustain its burden of
proof beyond a reasonable doubt as to any
essential element of any offense charged
against each defendant, it has then failed in
its burden of proof as to such defendant and
that defendant is to be acquitted. In short,
if the Government proves its case against any
defendant, you should convict that defendant.
If it fails to prove its case against any
defendant you must acquit that defendant.

Appellants objected to this supplemental instruction. They now

argue that the instruction amounted to a wrongful repudiation of

the time-honored concept of jury nullification.

The applicable rule is that, although jurors possess

the raw power to set an accused free for any reason or for no

reason, their duty is to apply the law as given to them by the

court. See United States v. Boardman, 419 F.2d 110, 116 (1st

Cir. 1969), cert. denied, 397 U.S. 991 (1970). Accordingly,

while jurors may choose to flex their muscles, ignoring both law

and evidence in a gadarene rush to acquit a criminal defendant,

neither the court nor counsel should encourage jurors to exercise

this power. See United States v. Trujillo, 714 F.2d 102, 106

(11th Cir. 1983). A trial judge, therefore, may block defense

attorneys' attempts to serenade a jury with the siren song of

nullification, see United States v. Garcia-Rosa, 876 F.2d 209,

51

226 (1st Cir. 1989); and, indeed, may instruct the jury on the

dimensions of their duty to the exclusion of jury nullification,

see Trujillo, 714 F.2d at 105-06 (collecting cases).

To the extent that appellants, during closing argument,

managed to mention nullification, they received more than was

their due. Having pocketed this gratuity, appellants now

complain that they were not allowed to capitalize on it. When

the jurors rose to the bait, appellants say, Judge Devine should

have assured them that nullification is an "historical

prerogative" of juries from time immemorial. We disagree.

Though jury nullification has a long and sometimes storied past,

see Boardman, 419 F.2d at 116, the case law makes plain that a

judge may not instruct the jury anent its history, vitality, or

use. See, e.g., United States v. Desmarais, 938 F.2d 347, 350

(1st Cir. 1991) (collecting cases). This proscription is

invariant; it makes no difference that the jury inquired, or that

an aggressive lawyer managed to pique a particular jury's

curiosity by mentioning the subject in closing argument, or that

a napping prosecutor failed to raise a timely objection to that

allusion. Thus, the district court appropriately scotched

appellants' suggested jury instruction.

Appellants' fallback position that the district

court, if disinclined to sing the praises of jury nullification,

should have refrained from giving any supplemental instruction

and, instead, should have stonewalled is not well conceived.

The objection focuses on the district court's opening comment

52

that "[f]ederal trial judges are forbidden to instruct on jury

nullification," interpreting this as a judicial prohibition

against the jury's use of its inherent power. The objection

fails for several reasons, most noticeably because the quoted

statement conveys no such chilling effect.

Taken literally, the judge's comment is an accurate

recitation of the law and an appropriate rejoinder to the jury's

question on nullification (a question that appellants prompted).

The district court explained why it could not answer the jury's

request for more information on nullification. The court went on

to repeat its earlier instruction that if the government proved

its case the jury "should" convict, while if the government

failed to carry its burden the jury "must" acquit. This contrast

in directives, together with the court's refusal to instruct in

any detail about the doctrine of jury nullification, left

pregnant the possibility that the jury could ignore the law if it

so chose. Whether the jury perceived this possibility or not, no

error infiltrated the court's supplemental instruction.

IX. VARIANCE BETWEEN INDICTMENT AND PROOF

Appellants Edgar Sepulveda and Tony Rood now claim that

the district court should have acquitted them because they were

not part of the charged conspiracy. We review their claims to

determine whether there is sufficient evidence to support the

jury's verdict. See David, 940 F.2d at 732. We conclude that a

rational jury could find, as this jury did, that a single

conspiracy existed, and that the two objectors participated in

53

it.

We start with bedrock. Ordinarily, questions anent the

number and structure of conspiracies present matters of fact

suitable for resolution by a jury. See id.; United States v.

Boylan, 898 F.2d 230, 243 (1st Cir.), cert. denied, 489 U.S. 849

(1990). Of course, the jury's inquiry is guided by certain

principles. For example, in a unitary conspiracy it is not

necessary that the membership remain static, see United States v.

Perholtz, 842 F.2d 343, 364 (D.C. Cir.), cert. denied, 488 U.S.

821 (1988), or that all members join at the same time, see United

States v. Cintolo, 818 F.2d 980, 997 (1st Cir.) (deeming that

latecomers to a conspiracy adopt the prior acts and declarations

of earlier arrivals), cert. denied, 484 U.S. 913 (1987), or that

a given member knows all his fellow coconspirators, see Rivera-

Santiago, 872 F.2d at 1079. Similarly, the modus operandi of a

conspiracy may vary over time without negating the existence of a

single conspiracy. See Garcia-Rosa, 876 F.2d at 223.

Turning to the instant case, several defendants argued

that they were not members of the charged conspiracy. The

district court instructed the jury that it should convict a

particular defendant only if it found him or her to be part of

the single conspiracy limned in the indictment. The court

cautioned the jurors that they must acquit any defendant not

linked to that conspiracy even if they concluded that such

defendant had been a member of a separate, equally heinous

conspiracy. The verdict, then, had the effect of rejecting the

54

"multiple conspiracy" defense, instead signifying the jury's

contrary conclusion that the appellants collogued together within

the framework of the master conspiracy.

To be sure, the charged conspiracy had a protean

quality but many criminal conspiracies, particularly large

conspiracies that function for extended periods of time, must

adjust to cope with changing conditions. In this respect,

conspiracies are like other business organizations: a conspiracy

may hire, fire, retool, change suppliers, expand, downsize,

refine its operating practices, undertake new marketing

strategies, or shift its priorities from time to time without

sacrificing its essential identity. It is, therefore, not fatal

to the government's "single conspiracy" theory that David

Sepulveda began his career by patronizing a cocaine supplier in

Nashua, and later switched to a source in Lawrence. Likewise,

the fact that the organization's methods and tactics evolved over

time did not dictate a finding of two, three, or four separate

conspiracies. The government offered evidence showing that,

throughout the six-year period covered by the indictment, the

goals of the organization were constant, its leadership did not

change, and much of its membership remained stable. These are

important indicia of unitariness. See David, 940 F.2d at 734.

All in all, we find the common threads adequate to create a jury

question as to whether a single conspiracy existed.

The evidence tying Edgar Sepulveda to the single

conspiracy is more than ample. Two witnesses testified that

55

Edgar, himself, sold them cocaine. Four witnesses testified that

Edgar routinely accompanied his brother, David, on drug-buying

sprees. One of these witnesses, Norberto Perez, testified to

taking an average of one such trip a week with the Sepulveda

siblings over a protracted period of time. Another witness, John

Rice, testified that he saw the Sepulvedas packaging cocaine at

Driesse's home.

There is similar, albeit less pervasive, evidence of

Rood's role in the organization. Perez testified that he and

Rood made over fifteen trips to Lawrence in order to replenish

David Sepulveda's drug inventory. When David agreed to pay

Santos in kind for chauffeuring him during a drug delivery, he

instructed Rood, in Santos's presence, to give Santos his

stipend. On another occasion, David sent Rood and Perez to

retrieve cocaine that had been abandoned during a police chase.

Finally, a gaggle of witnesses, including Santos, testified that

they had purchased cocaine from Rood. From this variegated proof

the jury could permissibly weave a tapestry linking Rood with the

master conspiracy rather than isolating him within the cloister

of the self-styled "mini-conspiracy" in which he now professes to

have been involved. See Moran, 984 F.2d at 1304; Glenn, 828 F.2d

at 861-62.

To recapitulate, the record satisfactorily supports a

multifaceted finding that the single conspiracy charged in the

indictment existed and that both Edgar Sepulveda and Tony Rood

enlisted in it. Thus, no material variance existed and the

56

district court properly refused to order acquittal.

X. POTPOURRI

Appellants raise a number of other issues. Believing

that exegetic treatment of these points would serve no useful

purpose, we reject some by means of this global reference and

discuss the rest in summary fashion.

A. Particularity of the Indictment.

Two appellants challenge the particularity of the

indictment as it applies to them. While we comment separately on

each challenge, we first lay out the black-letter rule: in

general, an indictment is sufficiently particular if it

elucidates the elements of the crime, enlightens a defendant as

to the nature of the charge against which she must defend, and

enables her to plead double jeopardy in bar of future

prosecutions for the same offense. See Hamling v. United States,

418 U.S. 87, 117 (1974) (collecting cases); see also Fed. R.

Crim. P. 7(c)(1).

1. Arline Welch. Defendant Arline Welch argues that,
1. Arline Welch.

as it applies to her, the indictment transgresses the Hamling

guidelines. The gravamen of her complaint is that the indictment

neither contains the elements of the crime charged nor limns the

date, time, and place of her ostensible criminal activity. We

think her reading of the charging papers is colored by self-

interest.

The grand jury indicted Welch for conspiracy to possess

and distribute cocaine in violation of 21 U.S.C. 846. To

57

convict her, therefore, the government had to show beyond a

reasonable doubt that a drug-trafficking conspiracy existed about

which Welch knew and in which she voluntarily participated. See

David, 940 F.2d at 735 (explaining elements of conspiracy under

846); Gomez-Pabon, 911 F.2d at 852 (similar). The indictment

specifies the law which Welch is alleged to have violated and

elaborates that she, with others, "knowingly" and "intentionally"

agreed to act in contravention of that law. The indictment also

provides a temporal framework, asserts that Welch's residence was

used as a packaging center for the drug distribution ring, and

states that she worked as a "runner" and a "street-level dealer."

We think this information sufficiently spelled out the crime,

apprised Welch of the charge against which she had to defend, and

protected her from the boggart of double jeopardy. See Hamling,

418 U.S. at 117; Paiva, 892 F.2d at 154. In the last analysis,

indictments need not be infinitely specific.

2. Kevin Cullinane. Defendant Kevin Cullinane also
2. Kevin Cullinane.

challenges the indictment's particularity. Notwithstanding the

pervasive proof of his complicitous conduct adduced at trial, see

supra Part II(B), Cullinane points out that the indictment itself

only mentions him twice, asserting that he purchased cocaine from

David Sepulveda and that, on one specific occasion, he

distributed cocaine to another coconspirator. But the frequency

with which a person is (or is not) mentioned in an indictment is

an insufficient indicium of the indictment's particularity.

Here, the charging papers contained considerable contextual

58

detail. Given the indictment's general description of the

conspiracy and identification of the alleged coconspirators, we

find that it put Cullinane on fair notice and contained

information sufficient to allow him to prepare his defense. See

Hamling, 418 U.S. at 117. The drug conspiracy statute, 21 U.S.C.

846, does not require the government to plead or prove any

particular overt acts in furtherance of a charged conspiracy.

See United States v. O'Campo, 973 F.2d 1015, 1019-20 (1st Cir.

1992); Paiva, 892 F.2d at 155.

B. Bill of Particulars.

The same two appellants assign error to the lower

court's denial of their motions for bills of particulars.

Motions for bills of particulars are seldom employed in modern

federal practice. When pursued, they need be granted only if the

accused, in the absence of a more detailed specification, will be

disabled from preparing a defense, caught by unfair surprise at

trial, or hampered in seeking the shelter of the Double Jeopardy

Clause. See United States v. Abreu, 952 F.2d 1458, 1469 (1st

Cir.) (collecting cases), cert. denied, 112 S. Ct. 1695 (1992).

We review refusals to require such bills under an abuse-of-

discretion test. See United States v. Hallock, 941 F.2d 36, 40

(1st Cir. 1991).

Here, both appellants enjoyed the benefits of modified

open-file discovery, i.e., automatic discovery that encompassed

all relevant data except Jencks Act material related to witnesses

not employed in law enforcement. Neither appellant convincingly

59

relates a concrete instance of inability to prepare, untenable

surprise, or other cognizable prejudice stemming from the trial

court's refusal to mandate further particulars. For our part, we

have been unable to discover any such instance. In the

unremarkable circumstances of this case, the district court acted

well within the encincture of its discretion in denying

appellants' motions.

C. Speedy Trial.

Arline Welch contends that the court below erred in

refusing to dismiss the charges against her on the ground that

too long a time intervened between indictment and trial. Her

claim invokes the Speedy Trial Act, 18 U.S.C. 3161-3174

(1988). The Act provides in pertinent part:

In any case in which a plea of not
guilty is entered, the trial of a defendant
charged in an . . . indictment . . . shall
commence within seventy days from the filing
date . . . of the . . . indictment, or from
the date the defendant has appeared before a
judicial officer . . ., whichever date last
occurs.

18 U.S.C. 3161(c)(1).

For Speedy Trial Act purposes, time has both

quantitative and qualitative dimensions. The Act's 70-day trial

mandate, see id., exemplifies its quantitative side. On the

qualitative side, the Act excludes from the 70-day period

intervals of delay that result from such events as the pendency

of pretrial motions, see 18 U.S.C. 3161(h)(1)(F), the presence

of other defendants in the case "as to whom the time for trial

has not run and no motion for severance has been granted," id. at

60

3161(h)(7), or continuances which serve the "ends of justice,"

id. at 3161(h)(8)(A). Therefore, a violation of the Act occurs

only if (i) a sufficient number of days elapse (the quantitative

benchmark), and (ii) the days are nonexcludable (the qualitative

benchmark).

Against this background, the chronology of Welch's case

is telling. Her arraignment took place on November 19, 1990, and

her trial started on April 2, 1991. Quantitatively, this 134-day

interval exceeds the goal set by the Speedy Trial Act. But,

qualitatively, the record presents a much more excusatory

picture. The bulk of the time elapsed between arraignment and

trial is excludable for Speedy Trial Act purposes because

pretrial motions filed by the defendants, as a group, engendered

considerable delay (bringing the nonexcludable time to fewer than

35 days). Hence, the court below did not err in declining to

dismiss the case under the Speedy Trial Act.25 See, e.g.,

United States v. Ramirez, 973 F.2d 36, 37 (1st Cir. 1992)

(collecting cases); United States v. Torres Lopez, 851 F.2d 520,

526 (1st Cir. 1988), cert. denied, 489 U.S. 1021 (1989); United

States v. Anello, 765 F.2d 253, 256-58 (1st Cir.), cert. denied,

474 U.S. 996 (1985).

D. David Chase's Testimony.

At trial, David Chase testified that he regularly

25We note that the district court also granted an ends-of-
justice continuance on December 18, 1990, in response to David
Sepulveda's motion for an extension of discovery deadlines,
thereby providing an additional source of excludable time. See

18 U.S.C. 3161(h)(8)(A).

61

purchased cocaine from appellant Cullinane until, having grown

dissatisfied with the quality of Cullinane's wares, he began

buying directly from David Sepulveda. Cullinane argues before

us, as he argued below, that Chase's testimony should have been

purged because Chase did not explicitly tie Cullinane to

Sepulveda. We disagree.

The relevancy of a witness's testimony cannot be

gauged in isolation. See United States v. Hickey, 596 F.2d 1082,

1089 (1st Cir.), cert. denied, 444 U.S. 853 (1979). Several

witnesses other than Chase described Cullinane's dealings with

Sepulveda, including his purchases of contraband and their joint

participation in drug-buying excursions. Given this contextual

detail, the jury could well infer that the sales to Chase were

connected to the Cullinane-Sepulveda axis. In a criminal case,

proof need not be explicit; juries are permitted, indeed,

encouraged, to draw reasonable inferences from the facts before

them. See, e.g., Echeverri, 982 F.2d at 679; United States v.

Ingraham, 832 F.2d 229, 239-40 (1st Cir. 1987), cert. denied, 486

U.S. 1009 (1988). The district court did not abuse its

discretion in admitting evidence of Cullinane's sales to Chase as

circumstantial evidence of Cullinane's role in the distribution

network.

E. Steven Ranfros's Testimony.

David Sepulveda objected to the testimony of Steven

Ranfros, a police officer who recounted that Sepulveda and

several of his associates chased Ranfros when they discovered him

62

watching them from a wooded area. Sepulveda insists that

Ranfros's testimony lacks any relevance.

Relevance is defined in terms of probative value, see

Fed. R. Evid. 401, and trial courts are afforded wide discretion

in assessing the relevance and probative value of proffered

evidence. See United States v. Sutton, 970 F.2d 1001, 1006 (1st

Cir. 1992); United States v. Nickens, 955 F.2d 112, 125 (1st

Cir.), cert. denied, 113 S. Ct. 108 (1992). We will disturb an

exercise of that discretion only upon a showing of manifest

abuse. See United States v. Yefsky, 994 F.2d 885, 898 (1st Cir.

1993). We discern no such problem here. Ranfros's testimony

could be taken to bear on guilty knowledge, and, thus, the

district court had discretion to allow the jury to consider it.

F. The Terry Stop.

At trial, the government introduced evidence that the

police seized $4,200 from David Sepulveda after a highway stop

near Nashua. Sepulveda moved to suppress the evidence. The

government contended that the cash constituted the fruits of a

search incident to a lawful arrest. The district court denied

the suppression motion without comment. Sepulveda assigns error

to this ruling and to the admission of evidence emanating from

the seizure.

In its appellate brief, the government concedes the

fallibility of the construct that it hawked in the district court

and, instead, attempts to justify the search under Terry v. Ohio,

392 U.S. 1, 29-30 (1968). At oral argument the government

63

executed yet another about-face, acknowledging that the Terry-

based yarn spun in its brief is easily unravelled. We do not

find it surprising that the prosecution, like a Pirandello

character in search of an author, has encountered insuperable

difficulties in articulating a viable theory: the short of it is

that the cash was unlawfully seized and that evidence derived

from the seizure should have been suppressed. We do not

understand why the government is unwilling simply to face that

fact or why it pressed so vigorously to have evidence obtained

in a patently illegal manner admitted in the first place.

At any rate, the matter is academic. As a general

rule, a defendant is not shielded if the government violates

someone else's constitutional rights. See United States v.

Santana, 6 F.3d 1, 8 (1st Cir. 1993). Consequently, Sepulveda's

coconspirators have no standing to raise a claimed abridgment of

his Fourth Amendment rights. See United States v. Padilla, 113

S. Ct. 1936, 1939 (1993); Rawlings v. Kentucky, 448 U.S. 98, 106

(1980).

As to Sepulveda himself, the erroneously admitted

evidence is cumulative. In testimony not covered by the motion

to suppress, a civilian witness, Michael Lacerte, related that he

had given the funds in question to Sepulveda so that Sepulveda

could buy cocaine. Lacerte also recounted Sepulveda's

explanation as to seizure of the money. Under the circumstances,

and bearing in mind the factors that frame our inquiry, see supra

pp. 30, whatever error inhered in admitting evidence anent the

64

seizure and its sequelae was entirely harmless.

G. Jury Taint.

At one point during the trial, a juror joked about one

of the defendants. The district court proceeded to question two

jurors out of earshot of the venire. After identifying the

individual responsible for the wisecrack, the court dismissed

her. Appellants moved unsuccessfully for a mistrial and now

posit error based on the denial of their motion.

We find nothing amiss. When a potentially taint-

producing event threatens to mar the jury's integrity, the

district court has fairly broad discretion in deciding whether

the situation is susceptible to remediation, and if so, what

corrective action might be appropriate. See Boylan, 898 F.2d at

258; Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 570 (1st

Cir. 1989). Unless the event leaves so sour a taste that less

extreme palliatives will prove inadequate to undo serious damage,

the mere possibility of jury taint does not necessitate a

mistrial. See United States v. Hunnewell, 891 F.2d 955, 960-61

(1st Cir. 1989). Mindful of the trial court's superior coign of

vantage, we accord great respect to a district judge's finding

that a jury has not been irreparably tainted. See Boylan, 898

F.2d at 258.

Here, the judge employed a combination of

amelioratives: he removed the offending juror from the case and

issued hortatory instructions to the remaining jurors. Given

what transpired, the judge's prescription seems reasonably well

65

calculated to protect the defendants' legitimate rights; the

joke, albeit tasteless, did not work a per se deprivation of

appellants' right to a fair trial. Consequently, the court acted

appropriately in refusing to abort the trial. See Hunnewell, 891

F.2d at 961.

H. Destruction of Evidence.

On May 5, 1989, in the course of a separate

investigation, the government took custody of certain telephone

records belonging to defendant Cullinane. After examining the

records, the government returned them to Cullinane's housemate.

In turn, the housemate threw them out. Seizing on this

development, appellant Arline Welch asseverates that those

records may have contained exculpatory material vis-a-vis her

relationship with Cullinane and that, therefore, the government's

failure to maintain them requires dismissal of the indictment.

The asseveration is full of holes.

Government destruction of potentially exculpatory

evidence only violates the rule in Brady, 373 U.S. at 87, if the

evidence possesses apparent exculpatory value that cannot fully

be replicated through other sources, and if the government acts

willfully or in bad faith in failing to preserve it. See Arizona

v. Youngblood, 488 U.S. 51, 58 (1988); California v. Trombetta,

467 U.S. 479, 488-89 (1984); United States v. Femia, F.3d

, (1st Cir. 1993) [No. 93-1276, slip op. at 8-9].

Government investigators typically cast a wide net and haul in a

variety of items. While evidence, once seized, cannot be

66

destroyed willy-nilly, the government does not become an insurer

of the perpetual availability of every item caught in its

investigatory net. See, e.g., United States v. Kincaid, 712 F.2d

1, 2-3 (1st Cir. 1983).

In the situation at hand, the government did not

destroy the records Welch seeks but merely returned them to

Cullinane's residence. There is no hint of bad faith and no

indication that the agents knew, or should have anticipated, that

Cullinane's friend would thereafter discard them. Accordingly,

Welch's motion is best regarded as a throwaway.26

I. Cumulative Error.

Appellants argue that even if certain trial errors,

taken in isolation, appear harmless, the accumulation of errors

effectively undermines due process and demands a fresh start. We

accept the theoretical underpinnings of this argument.

Individual errors, insufficient in themselves to necessitate a

new trial, may in the aggregate have a more debilitating effect.

See, e.g., United States v. Dwyer, 843 F.2d 60, 65 (1st Cir.

1988); Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.), cert. denied,

437 U.S. 910 (1978); cf. United States v. Samango, 607 F.2d 877,

884 (9th Cir. 1979) (employing cumulative error doctrine to

invalidate results of grand jury proceeding). In other words, a

column of errors may sometimes have a logarithmic effect,

producing a total impact greater than the arithmetic sum of its

26In view of this shortfall, we need not address the other
prongs of the test.

67

constituent parts.

Of necessity, claims under the cumulative error

doctrine are sui generis. A reviewing tribunal must consider

each such claim against the background of the case as a whole,

paying particular weight to factors such as the nature and number

of the errors committed; their interrelationship, if any, and

combined effect; how the district court dealt with the errors as

they arose (including the efficacy or lack of efficacy of any

remedial efforts); and the strength of the government's case.

See, e.g., Mejia-Lozano, 829 F.2d at 274 n.4. The run of the

trial may also be important; a handful of miscues, in

combination, may often pack a greater punch in a short trial than

in a much longer trial.

The cumulative error doctrine is inapposite here.

While we have uncovered a few benign bevues, e.g., the district

court's failure to grant David Sepulveda's motion to suppress

evidence of money illegally seized from him, see supra Part X(F),

and the ill-advised admission of two statements unsupported by

extrinsic evidence and, hence, ineligible for special swaddling

under Fed. R. Evid. 801(d)(2)(E), see supra Part V(B), the errors

were not portentous; they were few and far between; they

possessed no special symbiotic effect; they occurred in the

course of a two-month trial; and the government's case was very

strong. Consequently, the errors, in the aggregate, do not come

close to achieving the critical mass necessary to cast a shadow

upon the integrity of the verdict.

68

Considering the trial's length, complexity, and hard-

fought nature, the district court's handling of it evokes our

admiration. Appellants' focus on cumulative error does not

change the picture. The Constitution entitles a criminal

defendant to a fair trial, not to a mistake-free trial. See

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); United States

v. Polito, 856 F.2d 414, 418 (1st Cir. 1988). When all is said

and done, the proceedings here meet this measure.

XI. SENTENCING ISSUES

The sentencing issues raised in these appeals implicate

the federal sentencing guidelines.27 See David, 940 F.2d at

739 (holding that the guidelines apply to a conspiracy that

"begins before the guidelines' effective date and continues after

the effective date"). Six appellants (Rood, Wallace, Cullinane,

Arline Welch, Edward Welch, and Johnson) challenge rulings

relative to the imposition of sentence.28 To the extent that

these challenges touch upon the district court's factfinding or

its evaluative judgments in applying the guidelines to the facts

as found, appellate review is for clear error. See United States

27Since the district court sentenced appellants on various
dates in January 1992, the November 1991 version of the
sentencing guidelines applies in this case. See United States v.

Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any

ex post facto problem, a defendant is to be punished according to

the guidelines in effect at the time of sentencing.").
Therefore, all references to the sentencing guidelines will be to
the November 1991 edition, unless otherwise specifically
indicated.

28The court below sentenced appellants to assorted prison
terms ranging from a high of almost twenty-two years (David
Sepulveda) to a low of five years.

69

v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). To the extent

that the challenges raise "pure" questions of law or require

interpretation of the guidelines, our review is plenary. See id.

A. General Principles.

In drug-trafficking cases under the sentencing

guidelines, sentences are largely quantity-driven. See, e.g.,

United States v. Morillo, F.3d , (1st Cir. 1993) [No.

93-1388, slip op. at 12 & n.10]; United States v. Garcia, 954

F.2d 12, 15 (1st Cir. 1992); United States v. Blanco, 888 F.2d

907, 909-11 (1st Cir. 1989); see also United States v. Bradley,

917 F.2d 601, 604 (1st Cir. 1990) (describing drug quantity as "a

key datum" for sentencing purposes). The drug quantity

attributable to a particular defendant is derived by adding

together the amounts of narcotics, actual or negotiated, bound up

in the acts "that were part of the same course of conduct or

common scheme or plan as the offense of conviction." U.S.S.G.

1B1.3(a)(2). However, in the context of jointly undertaken

criminal activity, such as a conspiracy, a defendant is not

automatically saddled with the full weight of the conspiracy's

wrongdoing; rather, a defendant is responsible for drugs he

personally handled or anticipated handling, and, under the

relevant conduct rubric, for drugs involved in additional acts

that were reasonably foreseeable by him and were committed in

furtherance of the conspiracy. See Garcia, 954 F.2d at 15;

David, 940 F.2d at 742; see also U.S.S.G. 1B1.3(a)(1), comment.

(n.1). In this regard, we have emphasized that "the measure of a

70

defendant's accountability for drug transactions in which he was

not personally involved is usually congruent with the scope of

his agreement with the other participants in the criminal

enterprise." Garcia, 954 F.2d at 16.

B. Tony Rood; William Wallace.

Appellants Rood and Wallace object to the district

court's attribution of particular drug quantities to them.

Because the same type of error infects both sentences, we discuss

them in the ensemble.

In regard to Rood and Wallace, the district court's

drug quantity calculations rested essentially on Perez's trial

testimony.29 According to Perez, Rood accompanied him on

fifteen to twenty drug-buying jaunts and Wallace accompanied him

on ten to fifteen such trips. Perez did not assign particular

amounts to particular people on particular trips. Rather, he

testified in sweeping generalities, stating that the smallest

amount he remembered having been acquired, in the eighty or so

trips he took with Sepulveda and an assortment of companions over

a two-year period (1987-1989), was four ounces (113.4 grams), and

the largest amount acquired was one kilogram (an amount purchased

more than once). In preparing the presentence investigation

report (PSI Report), the probation department adopted methods of

calculation apparently urged by the prosecution. The basic

29To be sure, there was some evidence of participation by
Rood and-or Wallace in a few other incidents. But the quantities
involved in these incidents were niggling in comparison to the
Sepulveda trips and, thus, do not affect these appeals.

71

method was to construct a double "average" covering both the

number of runs and the amount of cocaine carried. This was done

by taking the midpoint of the high and low figures and

multiplying the average number of runs by the average amount

carried. Thus, in Wallace's case, the PSI Report assumed twelve

runs (an alleged "average" of ten and fifteen) and 556 grams per

run (the rounded-off average, expressed in grams, of four ounces

and one kilogram), attributing a total of 6.68 kilograms of

cocaine to him. In Rood's case, a different probation officer

proposed a slightly more complicated (but methodologically

similar) calculation and attributed 8.3 kilograms to him. The

exact mechanics are beside the point; what matters, for our

purposes, is that, albeit somewhat more circuitously, the

ultimate attribution of a drug quantity figure to Rood, as to

Wallace, represented an assumed average number of trips

multiplied by an assumed average quantity of cocaine per trip.

The district court held separate sentencing hearings

for Rood and Wallace. Neither the prosecution nor the defendants

offered additional evidence. The court, over objection, endorsed

the probation officers' calculations, attributing 8.3 kilograms

of cocaine to Rood and 7.6 kilograms to Wallace. This yielded a

base offense level (BOL) of 32 for each man. See U.S.S.G.

2D1.1(c) (6) (Drug Quantity Table) (establishing BOL of 32 for

at least five but less than fifteen kilograms of cocaine). The

court essayed further offense-level adjustments (not now in

dispute), factored Rood's criminal history category (IV) into the

72

mix, and set his guideline sentencing range (GSR) at 135-168

months. The court sentenced Rood at the bottom of the range.

Wallace displayed a less notorious criminal history (category

II). Nonetheless, after interim adjustments not material here,

his GSR proved to be identical. Relying on United States v.

Floyd, 945 F.2d 1096, 1099 (9th Cir. 1991), and citing a lack of

adult guidance during Wallace's youth, the court departed

downward, sentencing him to ten years.30

The defense's first line of attack is to assail Perez's

testimony as utterly unreliable in view of his dubious character,

asserted contradictions, and sundry other defects. But, the

trial judge heard and saw Perez testify at trial, and credited

his testimony. Such credibility calls are grist for the trial

court's mill. See St. Cyr, 977 F.2d at 706. Consequently, we

have no basis for overturning this judgment.

Nonetheless, one swallow does not a summer make. The

critical problem with respect to these sentences lies not with

Perez's testimony but with the pyramiding of inferences based

upon it. Perez's testimony was elicited at trial, not at either

sentencing hearing, and the prosecution, primarily concerned

during trial with proving the defendants' participation in a drug

trafficking conspiracy rather than fixing the precise quantity of

drugs for which each defendant might be held responsible,

30Floyd has since been overruled, albeit on other grounds.

See United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993).

However, the government has not prosecuted a cross-appeal and the
validity of the departure decision is not before us.

73

obtained a bare minimum of information. With no better

information at hand, these appellants' sentences cannot be

upheld.

For sentencing purposes, the government must prove drug

quantities by a preponderance of the evidence. See United States

v. Sklar, 920 F.2d 107, 112-13 (1st Cir. 1990); Bradley, 917 F.2d

at 605. Courts must sedulously enforce that quantum-of-proof

rule, for, under the guidelines, drug quantity has a dramatic

leveraging effect. Thus, relatively small quantitative

differences may produce markedly different periods of immurement.

This reality informs the preponderance standard, requiring that

district courts must base their findings on "reliable

information" and, where uncertainty reigns, must "err on the side

of caution." Sklar, 920 F.2d at 113 (quoting United States v.

Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S.

990 (1990)).

These tenets possess particular force on the record

before us, for we do not believe that the so-called average

figures selected by the probation officers and adopted by the

trial court have adequate support in the record. To say that the

minimum amount carried on a single trip was four ounces and that

the maximum was one kilogram provides no rational basis for

presuming that the average amount carried on a given number of

trips was the mathematical midpoint between the high and low

figures. Cf. United States v. Hewitt, 942 F.2d 1270, 1274 (8th

Cir. 1991) (condemning use of a "far reaching" averaging

74

assumptions in estimating drug quantity). Similarly, while the

distortions are mathematically less serious, the selection of a

midpoint in estimating the number of trips is also without

evidentiary support. And the two flawed findings feed on each

other; by using not one, but two, unsupported averages to arrive

at both the number of trips undertaken and the amounts of cocaine

handled in the course of each trip, the court compounded the

error of its ways. This is, after all, not a case in which a

witness testified that, in his or her estimation,"X" equalled the

average drug quantity involved in a specific number of drug

transactions. That kind of estimate from a lay witness may

itself be troublesome, but at least the witness can be cross-

examined on the figure; and this court has sometimes accepted

such estimates in the past. See, e.g., United States v.

Innamorati, 996 F.2d 456, 490 (1st Cir.), cert. denied, S.

Ct. (1993). It is also not a case where a witness has given

a range, as to amounts or as to trips, but other persuasive

evidence (e.g., documents or records) exists tending to show that

some figure within the range is supported by a preponderance of

the evidence. Here, to the contrary, the court did not cite, and

the PSI Report did not identify, any extrinsic evidence or other

circumstances making averaging peculiarly appropriate or

suggesting a basis, apart from averaging, on which the probation

officers' determinations might rest. For our part, we have

combed the record and unearthed nothing that remotely suggests

Wallace joined in transporting shipments averaging 556 grams or

75

that Rood's shipments averaged twelve to sixteen ounces. In the

face of timely objection, wholly conclusory findings such as are

now before us cannot be said to command a preponderance of the

evidence, and, therefore, cannot support an imposed sentence.

Cf., e.g., United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir.

1993) (vacating, in the absence of other evidentiary support,

district court's drug quantity finding arrived at by rote

multiplication of number of trips times quantity carried on one

such trip); United States v. Garcia, 994 F.2d 1499, 1509 (10th

Cir. 1993) (vacating defendant's sentence and holding that

averages, when used to arrive at drug quantity findings, must be

"more than a guess"). And the gap in proof is not satisfied by

showing, as the government seeks to do in its brief, that more

trips and larger amounts are consistent with the general scale of

the Sepulveda enterprise.

Let us be perfectly clear. We do not announce a per se

rule barring a court from sentencing at a point different than

the low end of a testified range. There may be other evidence in

the case, direct or circumstantial, making it more likely than

not that the low point is simply too low and that some other

point is more probably representative. Indeed, in some

situations, the estimate itself, and the contextual detail

surrounding it, may provide the needed enlightenment. In our

view, a sentencing court remains free to make judicious use of

properly constructed averages and, ultimately, to make any

finding that the record supports. See United States v. Miele,

76

989 F.2d 659, 664-65 (3d Cir. 1993) (explaining that, where there

is other evidence tending to buttress the high end of an

estimated range, the sentencing court need not restrict itself to

the range's low end); see also U.S.S.G. 6A1.3(a) (stating that

the information on which a sentence is based must possess

"sufficient indicia of reliability to support its probable

accuracy"). Here, however, the record does not justify the

district court's findings concerning the drug quantities it

attributed to Rood and Wallace. Accordingly, because drug

quantity dictated these appellants' offense levels and at least

arguably influenced their sentences, Rood and Wallace are

entitled to be resentenced.31

C. Kevin Cullinane.

After all relevant adjustments had been made, the court

below established a GSR of 121-151 months referable to appellant

Cullinane,32 and sentenced him at the range's nadir. This

determination rested in substantial part on the court's drug

31On remand, the district court is, of course, free to hear
new evidence bearing on drug quantity. For example, it may well
be that better evidence can be adduced by recalling Perez or by
calling other witnesses. Alternatively, the government has the
"low point" estimates as to both the number of trips and amounts
transported to fall back upon and it has some specific evidence
as to other transactions. To start a mini-trial on drug quantity
is surely a discouraging supplement to a lengthy trial; but too
much rides on the computations to rely upon the kind of drug
quantity calculations that the government urges in respect to
these two appellants.

32We do not dissect the interim adjustments made by the
district court en route to the GSR as Cullinane concentrates his
fire on the drug quantity finding. We follow this same pattern,
whenever applicable, in discussing other appellants' sentences.

77

quantity assessment. Cullinane challenges this assessment,

insisting that Judge Devine erred in ascribing 8.99 kilograms of

cocaine to him.

Our review of Cullinane's challenge is more

circumscribed than might appear at first blush. It is

unnecessary to address an allegedly erroneous sentencing

computation if, and to the extent that, correcting it will not

change the applicable offense level or otherwise influence the

defendant's GSR (and, ultimately, his sentence). See United

States v. Connell, 960 F.2d 191, 198 n.11 (1st Cir. 1992);

Bradley, 917 F.2d at 604; see also Williams v. United States, 112

S. Ct. 1112, 1121 (1992) (stating that an error in sentencing is

harmless, and may be disregarded, if it "did not affect the

district court's selection of the sentence imposed"). This

principle is pertinent in Cullinane's case: his BOL, and, thus,

his sentence, will remain unchanged so long as he is responsible

for an amount of cocaine between five and fifteen kilograms. See

U.S.S.G. 2D1.1(c)(6) (Drug Quantity Table). His appeal fails,

then, if there is record support for ascribing at least five

kilograms of cocaine to him.

We find this to be the case. Although the district

court relied on the testimony of a number of witnesses to

buttress the drug quantity it attributed to Cullinane, we need

not go beyond the testimony of David Chase. Chase stated that he

bought somewhere between five and eight kilograms of cocaine from

Cullinane. The district court found this testimony credible and

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we, therefore, give it weight. At sentencing, credibility

determinations are the province of the district court. See

United States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993); St.

Cyr, 977 F.2d at 706; see also 18 U.S.C. 3742(e) (1988). That

ends the matter: the lowest of Chase's estimates affords a

sufficient predicate for the disputed sentence.

Cullinane attempts to confess and avoid. Even if

Chase's testimony is reliable, he ruminates, the conduct Chase

describes is irrelevant to the charged conspiracy. This maneuver

takes appellant down a blind alley. Within broad limits,

reviewing courts must defer to a sentencing judge's determination

of relevant conduct. Such findings are almost invariably

factbound, and we will set them aside only if they are shown to

be clearly erroneous. See Garcia, 954 F.2d at 16; Bradley, 917

F.2d at 605. In addition, the argument for deference peaks when

the sentencing judge has presided over a lengthy trial and is

steeped in the facts of the case. See, e.g., United States v.

Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992); United States

v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990), cert. denied,

111 S. Ct. 2039 (1991).

These salutary precepts are dispositive here. Full

deference is due and Chase's testimony, though circumstantial,

touched upon, and could logically be found to involve, matters

coming within the scope of the conspiracy. Accordingly, the

lower court did not commit clear error in concluding that

Cullinane's transactions with Chase comprised relevant conduct

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for sentencing purposes.

D. Arline Welch.

The district court attributed 1924 grams of cocaine to

Arline Welch and imposed the mandatory minimum incarcerative

sentence under 21 U.S.C. 841(b)(1)(B), viz., five years. Welch

contests only the district court's drug quantity assessment.

Because the mandatory minimum applies so long as quantities of

cocaine totalling 500 grams or more are involved in the offense

of conviction, see id., we need only inquire whether that much

contraband can fairly be attributed to her.

We answer this query affirmatively. Perez testified

that Arline Welch accompanied him on three journeys to Lawrence

and that 10 ounces of cocaine were acquired on each trip. The

district court credited Perez's testimony, attributing nearly 900

grams of cocaine to Arline Welch on this account. We decline

appellant's invitation to second-guess this finding.

E. Edward Welch.

The district court attributed 7.72 kilograms of cocaine

to Edward Welch and, after various interim adjustments, sentenced

him to 135 months in prison (the low end of the GSR). Welch

challenges only the drug quantity assessment.

The court's attribution of cocaine to Edward Welch

rests upon a cornucopia of testimony. It would serve no useful

purpose to survey it all. Upon careful review of the record, we

can see, at a minimum, no clear error in the court's decision to

accept the testimony of Coriaty and Milne testimony that was,

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in itself, sufficient to support the attribution of over 5.3

kilograms to this defendant.33 At this point, Welch's ground

of appeal collapses, for his sentence would be the same if the

court had found 5.3 kilograms rather than 7.72 kilograms. See

U.S.S.G. 2D1.1(c)(6) (Drug Quantity Table).

F. Cheryl Johnson.

The lower court attributed 1.2 kilograms of cocaine to

Cheryl Johnson and imposed the mandatory minimum five-year

sentence. See 21 U.S.C. 841(b)(1)(B). Johnson disputes the

drug quantity finding. Here, again, the trigger amount is 500

grams of cocaine. See id.

The district court determined, inter alia, that Johnson

sold 1/16th of an ounce of cocaine to Santos on at least 100

occasions; and that she sold 3/10s of an ounce to officer Malone

on another occasion. The court further found that $7,115 seized

from Johnson's house constituted the proceeds of drug sales and,

for sentencing purposes, equated this cash stash with 5.08 ounces

of cocaine. Finally, the court credited Perez's testimony that

Johnson participated in at least "a couple" of drug-buying

expeditions. Erring on the side of caution, the court could

warrantably have found Johnson responsible for two trips,

33At the risk of carrying coal to Newcastle, we note that
Edward Welch was a fellow traveller on, and a co-venturer in,
several drug-buying expeditions described supra Part XI(D).

Thus, the drug quantities associated with those jaunts are also
attributable to him.

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involving four ounces per trip.34 In the aggregate, the

determinations listed above support the attribution of 556 grams

of cocaine to Johnson more than the minimum required to

underbrace the sentence she received.

Johnson argues against these serial findings on three

grounds. Her first attack a broadside blast aimed at the total

quantity of cocaine attributed to her deserves little comment.

We simply restate the obvious: the district court's credibility

calls are beyond reproach and, therefore, its bottom-line

conclusion is not clearly erroneous.

Johnson's second fusillade is aimed at the cash

equivalency finding. In drawing a head on the sentencing court's

decision to translate dollars into drugs, Johnson is shooting

blanks. The government presented abundant evidence of Johnson's

narcotics trafficking, see supra Part II(D), and the volume of

business transacted justified the court's illation that the sums

seized were connected to her drug dealings. When it is

reasonably probable that confiscated cash represents either drug

profits or money dedicated to the upcoming purchase of

contraband, a sentencing court may convert the cash into

equivalent amounts of narcotics for "relevant conduct" purposes.

See U.S.S.G. 2D1.4, comment. (n.2) (authorizing district courts

to use price as a means of approximating drug quantity); see also

34The court actually found that Johnson's two trips involved
16 ounces per trip. But, this finding utilized an impermissible
process of rote averaging. See supra Part XI(B). Hence, we use

the low end of the range of available estimates for purposes of
appellate review.

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United States v. Jackson, 3 F.3d 506, 510 (1st Cir. 1993); United

States v. Figueroa, 976 F.2d 1446, 1460-61 (1st Cir. 1992), cert.

denied, 113 S. Ct. 1346 (1993); United States v. Gerante, 891

F.2d 364, 369 (1st Cir. 1989). So it is here.

Johnson's third salvo also flies wide of the target.

She insists that the cash did not belong to her and, thus, cannot

figure in her sentence. But as we read the record, the

circumstantial evidence supports a finding of proprietary

interest. And, moreover, even if we were to give credence to

Johnson's protest regarding ownership, the cash equivalency

evidence could be used against her as long as the drug money

constituted part of the same common scheme or plan and met the

foreseeability requirement for relevant conduct under the

guidelines. See Garcia, 954 F.2d at 15; Blanco, 888 F.2d at 910-

11; see also supra Part XI(A) (discussing relevant conduct in

conspiracy cases). The evidence here could reasonably be

interpreted as placing the cash stash within the orbit of the

conspiracy. For these reasons, we detect no clear error in the

lower court's conclusion that the money ought properly to be

treated as a proxy for cocaine and counted against this

appellant.

Johnson has two final items in her asseverational

array. She asserts that the court should have reduced her BOL by

two levels since she was merely a minor participant in the drug

distribution scheme, see U.S.S.G. 3B1.2(b), and that the court

should have departed downward due to her family circumstances.

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Neither assertion has much firepower.

As to the former plaint, a role-in-the-offense

reduction, even if granted, would have no effect on appellant's

sentence due to the overriding force of the mandatory minimum

prescribed by 21 U.S.C. 841(b)(1)(B). See U.S.S.G. 5G1.1(b)

(providing that the statutorily required minimum sentence shall

be the guideline sentence when it exceeds the top of the

applicable GSR). The assignment of error is, therefore, moot.

As to Johnson's last point, it is settled in this

circuit that a sentencing judge's informed decision not to

depart, regardless of direction, is a non-appealable event. See

United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992);

United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991).

There is nothing about appellant's case that extricates it from

the vice-like grip of this jurisdictional rule. In any event,

appellant failed to seek a departure below and, hence, cannot

broach the matter for the first time on appeal. See Ortiz, 966

F.2d at 717 (reiterating rule that appellate court will not

address sentencing arguments that were not seasonably advanced

below); United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991)

(similar).

XII. CONCLUSION

We need go no further. After considering all the

issues raised by appellants, including some issues not

specifically discussed herein, we have unearthed no vestige of

reversible error. Appellants' convictions and sentences are

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therefore lawful, save only for the sentences imposed on Rood and

Wallace. Accordingly, we affirm the convictions of those two

appellants, vacate their sentences, and remand for resentencing.

At the same time, we affirm the convictions and sentences of the

other eight appellants. We stay issuance of mandate in all the

appeals, pending publication of the two additional (and closely

related) opinions described supra note 2.

The convictions and sentences of appellants David

Sepulveda, Edgar Sepulveda, Edward W. Welch, Jr., Arline S.

Welch, Kevin Cullinane, Cheryl T. Johnson, Richard F. Labrie, and

Ernest F. Langlois are affirmed in all respects. The convictions

of appellants Tony Rood and William D. Wallace are affirmed,

their sentences are vacated, and, as to those appellants only,

the case is remanded for resentencing. The issuance of mandate

is stayed pending further order of the court.

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