United States v. Berrios

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2035

UNITED STATES,
Appellee,

v.

GEORGE BERRIOS, A/K/A ANTONIO CANDELARIO,
Defendant - Appellant.

No. 95-2036

UNITED STATES,
Appellee,

v.

MARIO MENDEZ, A/K/A PABLO,
Defendant - Appellant.

No. 95-2038

UNITED STATES,
Appellee,

v.

PEDRO GONZALEZ, A/K/A FRANK CASTILLO-PEREZ,
Defendant - Appellant.

No. 97-1121

UNITED STATES,
Appellee,

v.

HANNOVER ALBERTO SEGURA,
Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Godbold,* Senior Circuit Judge,

and Barbadoro,** District Judge.

Malcolm J. Barach, by appointment of the Court, for

appellant George Berr os.
Jos A. Espinosa, with whom Paul F. Murphy and MacDonald &

Murphy were on brief for appellant Mario M ndez.

Paul J. Garrity, by appointment of the Court, for appellant

Pedro Gonz lez.
Karl R.D. Suchecki, by appointment of the Court, with whom

Jennifer Petersen and Petersen & Suchecki were on brief for

appellant Hannover Alberto Segura.
William F. Sinnott, Assistant U.S. Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for

appellee.

January 6, 1998

* Of the Eleventh Circuit, sitting by designation.

** Of the District of New Hampshire, sitting by designation.

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GODBOLD, Senior Circuit Judge. This appeal arises from
GODBOLD, Senior Circuit Judge.

the conviction of four defendants, Mario M ndez, Pedro Gonz lez,

George Berr os, and Hannover Alberto Segura of various offenses

relating to possession and distribution of heroin. Their arrests

and convictions were the result of an extended undercover and

surveillance operation conducted by law enforcement agents

seeking to discover the source of an increased heroin trade in

Portland, Maine. Each defendant was convicted of participating

in a conspiracy to possess and distribute heroin and various

other crimes. They appeal, questioning their convictions and

their sentences. We AFFIRM the convictions and sentences.

FACTUAL SUMMARY
FACTUAL SUMMARY

The following factual synopsis summarizes evidence

introduced at trial. The facts are resolved in the light most

favorable to the verdict and consistent with the record, as is

required by our standard of review in an appeal from a final

judgment of conviction. U.S. v. Maraj, 947 F.2d 520, 522 (1st

Cir. 1991).

Between July 8, 1994 and August 23, 1994, Agent Scott

Pelletier of the Maine Drug Enforcement Agency engaged in four

heroin transactions with a man named Pablo, later proved to be

Mario M ndez. Pelletier had been introduced to Pablo by Lawrence

Freeman, a cooperating government informant familiar with

regional drug trade. Each of the four transactions took place in

Lowell, Massachusetts, where all four defendants resided. In

each transaction Pelletier purchased between 50 and 500 bags of

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heroin from Pablo. During the course of these transactions,

Pelletier saw Gonz lez accompanying and assisting M ndez several

times and witnessed Segura conducting counter-surveillance at two

different locations on July 8, 1994. After the fourth

transaction between Pelletier and M ndez, which took place at a

residence located at 36 Park Street, law enforcement officers

began arresting individuals involved. Gonz lez was found hiding

near the Merrimack River, and M ndez was arrested outside 36 Park

Street, later shown to be the location of the heroin "store" that

the conspiracy operated.

The police then executed a search warrant for 173

University Avenue, also in Lowell, Massachusetts. Based on

extensive surveillance and investigation the officers had

identified numerous phone calls between the residence of M ndez

and 173 University Avenue and between 36 Park Street and 173

University. Upon entering the apartment they observed Segura

running from the bathroom where plastic bags containing white

powder were going down the toilet. Also, within 173 University

Avenue, the officers seized numerous items of drug distribution

paraphernalia, including scales, sieves, and a "No Way Out" stamp

used for labeling the type of heroin purchased by Pelletier from

M ndez. They also found a large amount of cash, 107.6 grams of

crack cocaine and a loaded .357 Magnum handgun.

Police next executed a search warrant at 205 and 203

University Avenue where they arrested George Berr os, the

resident. There the officers seized large amounts of heroin,

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crack cocaine, and various items identified as distribution

paraphernalia and found a notebook containing the telephone

number for 173 University Avenue.

Other evidence at trial included the testimony of

Christopher Coughlin, who admitted purchasing heroin and crack

from the defendants. Coughlin identified M ndez as Pablo and

Gonz lez as a man who participated in the transactions but whose

name he did not know.

After a nineteen day trial, the jury returned a

verdict convicting each defendant of various counts of the nine

count indictment. All appellants were convicted of Count I,

which charged that the defendants had participated in a

conspiracy to possess with intent to distribute and to distribute

heroin in violation of 21 U.S.C. 846. After considering the

presentencing report of probation officers, as well as the

objections of both parties to the report, the district court

sentenced the four defendant to various prison terms ranging from

84 months for Berr os to 151 months for M ndez.

DISCUSSION
DISCUSSION

We have considered the arguments of each defendant and

find no error in their convictions or sentences. Accordingly, we

affirm. Because each individual raises different and numerous

issues and each is represented by different counsel, we will

address the contentions of each defendant separately with some

necessary repetition.

I. M ndez

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M ndez was convicted of Counts I-V, consisting of

various charges relating to possession and conspiracy to possess

heroin and cocaine with the intent to distribute. He was

sentenced to 151 months for each conviction to be served

concurrently. The sentence was the result of several

enhancements which M ndez contests and a significant downward

departure. The district court explained the downward departure

by noting that the lengthy sentences for possession of cocaine

base (crack) were unjustified because the conspiracy was

primarily one to distribute heroin rather than crack. The court

found that, by including the amount of confiscated crack cocaine

in the sentencing calculation, the sentence of each defendant was

increased by as much as six levels. The court acknowledged that

its reason could be construed as a discouraged ground for

departure but found that the case fell out of the heartland of

prescribed conduct, thus warranting departure. This downward

departure is not questioned by the government; therefore, we do

not reach whether it was proper. The departure resulted in an

offense level of 35 for M ndez. Based on his criminal history

category he received a 151 month sentence.

We affirm M ndez's convictions and sentences.

A. Testimony of defense witness Fortin

M ndez contends that his conviction should be reversed

because he was precluded from offering the testimony of Loretta

Fortin. The essence of her testimony would have been that M ndez

was not the "Pablo" she was introduced to during a drug sale in

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June of 1994. Furthermore, M ndez called Fortin to discuss her

meeting with Special Agent Connick in August of 1994, during

which she identified the photograph of another defendant as

Pablo. The relevancy of this testimony is that an individual

named Pablo was the supposed leader of the conspiracy and the

dealer with whom the government initially dealt. Differences

existed as to which member of the conspiracy was actually Pablo,

but several witnesses testified that M ndez was in fact Pablo and

that M ndez carried a beeper with the number belonging to Pablo.

The substance of Loretta Fortin's proposed testimony

was that she had one meeting with Pablo in which he entered the

back seat of her car while she remained in the front. Her

husband introduced the man as Pablo, and they conducted a drug

transaction. Fortin was willing to testify that M ndez was not

the Pablo that entered her car and that she selected a different

defendant as Pablo from police photographs. The court excluded

this testimony because it was based on the inadmissable hearsay

of the introduction of Pablo by her husband. M ndez contends

that this exclusion was erroneous because Federal Rule of

Evidence 801(d)(1)(c) provides that if a witness is available for

cross examination, prior statements of identification are not

hearsay. This assertion misses the point. Fortin's proposed

testimony about her husband's introduction of Pablo created the

hearsay problem, not her prior identification statements to Agent

Connick. To make her testimony credible she had to admit that

her knowledge of Pablo's identity was based on the hearsay

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statement of her husband - "this is Pablo."

By echoing her husband's introduction of Pablo,

Fortin's proposed testimony meets the prerequisites of hearsay.

The introduction of Pablo is a statement not made by the

declarant in testimony offered to prove the truth of the matter

asserted. For Loretta Fortin's testimony to be tenable the

statement made by her husband must have been true. Because we

have no way of verifying that Mr. Fortin was sufficiently

familiar with Pablo to identify him to Mrs. Fortin, her testimony

about Pablo is classic hearsay and was properly excluded.

Accordingly, the district court did not err in

disallowing Fortin's testimony on hearsay grounds. Moreover, if

error, it would have been harmless. Even if the introduction was

not hearsay, given Fortin's limited interaction with Pablo, the

weight of her testimony could not overcome the substantial

testimony of other credible witnesses who had more contact with

M ndez/Pablo and who testified that M ndez was in fact Pablo.

See U.S. v. Southard, 700 F.2d 1, 21 (1st Cir. 1983) (harmless

error to improperly exclude admissible evidence as hearsay where

substantial evidence existed to convict defendant).

B. M ndez' sentence was based on acquitted conduct

M ndez also challenges the fact that his sentence was

based in part on acquitted conduct. Specifically, he asserts

that the crack cocaine seized by the officers during the arrests

should not have been considered for sentencing purposes because

he was acquitted on all counts involving possession or

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distribution of cocaine. This assertion has no merit because "a

jury's verdict of acquittal does not prevent the sentencing court

from considering conduct underlying the acquitted charge, so long

as that conduct has been proved by a preponderance of the

evidence." U.S. v. Watts, 117 S. Ct. 633, 638 (1997).

C. Enhancement of M ndez' sentence

I. M ndez' role as an organizer or leader

The evidence was not insufficient to support M ndez'

four-level enhancement as an organizer or leader of the

conspiracy as provided by U.S.S.G 3B1.1(a). Evidence showed

that M ndez was always the person contacted when heroin was to be

purchased, and that he always returned pager calls. He set

prices and determined the location of the transactions.

Witnesses testified that it appeared that men who accompanied

M ndez were his subordinates and that he hired a person to man

the heroin "store" at 36 Park Street from 9:00 a.m. to 6:00 p.m.

daily. Other evidence offered by the government in its objection

to the presentence report tended to suggest that M ndez was in

fact the leader of a conspiracy that consisted of five or more

individuals.

We will not reverse a district court's finding of fact

regarding the role of the defendant unless it is clearly

erroneous or based on a mistake of law. U.S. v. Cali, 87 F.3d

571, 574 (1st Cir. 1996). Based on the extensive evidence

offered at trial and to the sentencing court that M ndez was in

fact an organizer and a leader, we hold that the court's

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sentencing was not clearly erroneous.

ii. Transacting of drug sales in a school zone

M ndez questions his one-level enhancement for

transacting a drug sale in a school zone on the ground that

evidence of the proximity of a school to any drug transaction was

not introduced at trial. However, the record indicates that such

evidence was introduced at the sentencing hearing and was not

objected to by any defendant. The evidence supporting the school

zone enhancement consisted of an affidavit signed by Special

Agent Bruce Tavers stating that the drug transactions at Fort

Hill Park in Lowell, Massachusetts took place within one thousand

feet of a junior high school.

At a sentencing hearing the court may consider evidence

that would be inadmissable at trial so long as the sentencing

court determines that the evidence has a "sufficient indicia of

reliability to support its probable accuracy." U.S. v. Tardiff,

969 F.2d 1283, 1287 (1st Cir. 1992). The affidavit of a law

enforcement officer familiar with the locale of the drug

transaction and the surrounding area is sufficiently reliable

that a court can accept it as evidence for sentencing purposes.

M ndez did not object to this evidence, and we find no plain

error. The affidavit was properly admitted to support the one-

level school zone enhancement.

iii. Codefendant's possession of a firearm

M ndez' two-level enhancement for possession of a

firearm during the drug offense was not error although he never

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actually possessed or used a gun during any of the drug

transactions. He was arrested at a different locale from where

the gun was found, but evidence showed that he was seen exiting

the residence where the gun was found, that he had made many

calls to this residence, that the residents were coconspirators,

and that the residence was a center for the drug operation.

These facts are sufficient for the enhancement because the

sentencing guidelines require only that a gun be present during

some portion of an ongoing crime. See U.S.S.G. 2D1.1(b)(1),

commentary at n.3. Because the defendants were convicted of a

continuing conspiracy the firearm was present during the crime.

Once the presence of a weapon is established

enhancement is proper unless the defendant demonstrates special

circumstances that show a clear improbability that the weapon was

connected to the drug offense. U.S. v. Lagasse, 87 F.3d 18, 22

(1st Cir. 1996). The government offered proof that the gun was

present during the drug conspiracy, and the defendant did not

offer any special circumstances that would make the connection

between the gun and the crime improbable; therefore, the

enhancement was proper.1

1 M ndez mentions Bailey v. U.S., 116 S. Ct. 501, 508-9 (1995),

as authority that the enhancement was improper, but Bailey has

been construed as not affecting sentencing enhancements based on
the possession of firearms during certain offenses. See U.S. v.

Gary, 74 F.3d 304, 317 n.11 (1st Cir.), cert denied, 116 S. Ct.

2567 (1996). Bailey only restricted convictions under 18 U.S.C.

924(c)(1) to those instances where a defendant actively
employed a firearm during the offense. Bailey, 116 S. Ct. at 508-

9(recognizing that sentencing guidelines may provide enhancements
for mere possession of a firearm during other offenses).

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II. Gonz lez

Pedro Gonz lez was convicted of Counts I, IV, and V

consisting of various charges relating to possession and

conspiracy to possess heroin with intent to distribute. He was

sentenced to 135 months concurrent for each conviction. His

original sentence was calculated by his being held responsible

for 113.7 grams of crack cocaine and 307 grams of heroin,

resulting in a base offense level of 33. He was then given a

two-level adjustment for obstruction of justice for providing a

false name and personal history and a two-level enhancement for

possession of a firearm during a drug trafficking offense,

resulting in a total offense level of 37. The district court

departed downward four levels because it found that the

conspiracy was primarily for the distribution of heroin rather

than crack cocaine. Because he found that the crack offenses

were outside the heartland offenses under the applicable

guideline, he granted a four-level downward departure, resulting

in a new base offense level of 33. After the court considered

his criminal history category, he was sentenced to 108 months in

prison. We affirm his sentence.

A. Obstruction of justice enhancement

Gonz lez contends that he did not deserve a two-level

enhancement for obstruction of justice because the false

statements he made concerning his identity did not amount to

materially false information as required by U.S.S.G. 3C1.1.

Section 3C1.1 provides that a two level enhancement for

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obstruction is proper where a defendant provides "materially

false information" to a judge, magistrate or a probation officer.

U.S.S.G. 3C1.1, commentary at n.3(f)&(h). For information to

be material it need only have the potential to affect the issue

under determination, including incarceration period, condition of

release, or whether the wrongful conduct has been mitigated in

some way. U.S.S.G. 3C1.1, commentary at n.5; U.S. v. Kelley, 76

F.3d 436, 441 (1st Cir. 1996).

By offering a false name, date of birth, and personal

history throughout the trial and during sentencing Gonz lez hid a

prior conviction, his age, his residence, and the fact that he

was seeking to defraud immigration officials by participating in

a sham marriage for the purpose of obtaining citizenship. The

substance and nature of these misrepresentations are material for

their potential to affect sentencing determinations. Because the

falsehoods "could have impacted the decisions of the sentencing

court" the two-level enhancement for obstruction of justice was

proper. Kelley, 76 F.3d at 441.

B. Failure to prove the substance found was crack cocaine

The government did not fail to sustain its burden of

proving that the substance confiscated from the conspiracy was

actually crack cocaine rather than some other form of cocaine.

Gonz lez did not argue at trial that the substance may have been

some other form of cocaine than crack, thus we would have to find

plain error. We cannot find plain error unless the desired

factual finding is the only one rationally supported by the

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record below. See U.S. v. Olivier-D az, 13 F.3d 1, 12 (1st Cir.

1993). Gonz lez did not offer any evidence to combat the

government' assertion that the substance was crack. Only if the

record clearly showed that the substance could not have been

crack would we be justified in finding plain error. Id. Because

the record supports the district court's finding for sentencing

purposes, there was no plain error.

C. Ineffective assistance of counsel

Nothing in the record supports Gonz lez' assertion that

he was denied effective assistance of counsel when his attorney

advised him that he could not receive a lesser sentence by

pleading guilty to the crime. "We have held with a regularity

bordering on the monotonous that fact-specific claims of

ineffective assistance cannot make their debut on direct review

of criminal convictions, but, rather, must originally be

presented to, and acted upon by, the trial court." See U.S. v.

Mala, 7 F.3d 1058, 1062-63 (1st Cir 1993); U.S. v. McGill, 952

F.2d 16, 19 (1st Cir. 1991).

Since claims of ineffective assistance
involve a binary analysis--the defendant
must show, first, that counsel's
performance was constitutionally
deficient and, second, that the
deficient performance prejudiced the
defense, such claims typically require
the resolution of factual issues that
cannot efficaciously be addressed in the
first instance by an appellate tribunal.
In addition, the trial judge, by reason
of his familiarity with the case, is
usually in the best position to assess
both the quality of the legal
representation afforded to the defendant
in the district court and the impact of

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any shortfall in that representation.
Under ideal circumstances, the court of
appeals should have the benefit of this
evaluation; elsewise, the court, in
effect, may be playing blindman's buff.

Mala, 7 F.3d at 1062-63 (citation omitted). This court has

dismissed without prejudice portions of an appeal relating to an

ineffective assistance claim and suggested that the defendant

should litigate such a claim through the medium of an application

for post-conviction relief. See Mala, 7 F.3d at 1063. Because

we have no factual record upon which to judge Gonz lez' claims of

ineffective assistance, we reject this claim for now and suggest

that the proper forum for his claim is through application for

post-conviction relief.

III. Berr os

George Berr os was convicted of Counts I, VI, and VII

consisting of various charges relating to possession and

conspiracy to possess heroin and cocaine with intent to

distribute. He was sentenced to 84 months concurrently. His

original sentence was calculated by holding him responsible for

26.08 grams of crack cocaine and 307 grams of heroin which

resulted in a base offense level of 30. He was then given a two-

level adjustment for obstruction of justice for providing a false

name and personal history, resulting in a total offense level of

32. The court then departed downward between three and four

levels based on reasoning discussed previously concerning the

nature of the conspiracy. After consideration of his criminal

history category, Berr os was sentenced to 84 months.

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Berr os questions both his conviction and sentence. We

affirm both.

A. Sufficiency of the evidence

Berr os argues that the evidence presented was

insufficient to sustain his conviction for conspiracy. He says

that the government presented no evidence that he assented to be

a part of the conspiracy or participated in the conspiracy to

distribute heroin. We customarily must decide whether the

evidence, considered in the light most favorable to the

government - "a perspective that requires us to draw every

plausible inference in line with the verdict and to resolve every

credibility conflict in the same fashion" - would allow a

rational jury to find that guilt was proved beyond a reasonable

doubt. U.S. v. Santiago, 83 F.3d 20, 23 (1st Cir. 1996).

Sufficient evidence existed for the jury to find that

Berr os was a member of the conspiracy. Police officers observed

him carrying several bags of heroin and found large amounts of

drugs and distribution paraphernalia at his residence.

Furthermore, the sentencing court found that Berr os was the

supplier of heroin to M ndez and the other conspirators. We

reject Berr os' contention that the evidence showed only that a

buyer-seller relationship rather than a conspiracy existed

between him and M ndez.

Whether a true conspiracy exists turns on whether the

seller knew that the buyer was reselling the drugs and intended

to facilitate those resales. Santiago, 83 F.3d at 23-24.

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Therefore, knowledge and intent are the touchstones for

sufficiently proving a conspiracy. The government presented

sufficient evidence to show that Berr os knew that M ndez and his

associates were reselling the heroin and that he intended to aid

these transactions by supplying large amounts of heroin to the

conspiracy. Evidence of Berr os' involvement in the conspiracy

was sufficient for a reasonable jury to convict.

B. Obstruction of justice enhancement

Much like appellant Gonz lez, Berr os challenges that

portion of his sentence resulting from a two-level enhancement

for obstruction of justice. He contends that the false

information he provided to the government was not material and

did not significantly impede investigation or prosecution as

required by the guidelines for an obstruction enhancement. Once

again we reject this argument. Berr os not only presented a

false name to the magistrate judge and district court throughout

trial, but he hid the status of his citizenship by claiming to

come from Puerto Rico. By hiding his true identity Berr os

concealed that he had previously been arrested by the Immigration

and Naturalization Service in 1991 and had fled after posting

bail.

For information to be material it need only have the

potential to affect an issue under determination, including

incarceration period, condition of release, or whether the

wrongful conduct has been mitigated in some way. U.S.S.G.

3C1.1, commentary at n.5; U.S. v. Kelley, 76 F.3d 436, 441 (1st

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Cir. 1996). Giving a false identity and pretending to be a

citizen of this country, as well as concealing facts that made

Berr os a known flight risk, could have affected some issue under

determination by the court, including bail. Although he provided

his real identity to the probation officer prior to the

preparation of the presentencing report and the sentencing

hearing, Berr os had participated in an entire criminal trial

under a false name and status, which amounted to an obstruction

of justice.

C. Sentencing Guidelines and the equal protection clause

Berr os contends that the court enforced "a vague law"

when it refused to treat crack cocaine as equal to powder cocaine

for sentencing purposes. Berr os noted that the U.S. Sentencing

Commission has prepared a report demonstrating the disparity that

exists between the sentencing guidelines for powder cocaine and

crack cocaine. We are bound by the prior decisions of this

circuit which have rejected this argument. See, e.g., U.S. v.

Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996); U.S. v. Singleterry,

29 F.3d 733, 739-41 (1st Cir. 1994). Until the en banc court of

this circuit, the U.S. Supreme Court, or Congress itself accepts

this assertion of disparity and finds it untenable, challenges to

the sentencing guidelines based on the disparity between

sentences for crack cocaine and powder cocaine will continue to

fail. See Irving v. U.S., 49 F.3d 830, 833-4 (1st Cir. 1995);

U.S. v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991).

IV. Segura

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Segura was convicted by a jury of Counts I and II

consisting of various charges relating to possession and

conspiracy to possess heroin and cocaine with the intent to

distribute. He was sentenced to 108 months for each conviction

concurrently. His original sentence was calculated by holding

him responsible for 113.7 grams of crack cocaine and 307 grams of

heroin, resulting in a base offense level of 32. He was then

given a one-level adjustment for transacting drug sales in a

school zone and a two level enhancement for possession of a

firearm during the offense, this resulting in a total offense

level of 35. The court then departed downward four levels based

on the reasoning discussed above concerning the nature of the

conspiracy. After consideration of his criminal history

category, Segura was sentenced to 108.

He challenges his conviction and sentence and we affirm

both.

A. Sufficiency of the evidence

Segura maintains that the evidence presented at trial

was insufficient to establish that he knowingly and intentionally

possessed heroin with the intent to distribute it or conspired to

do so. In considering whether sufficient evidence to convict

exists, we must consider the evidence in the light most favorable

to the verdict and reverse only if no rational trier of fact

could have found him guilty. U.S. v. Santiago, 83 F.3d 20, 23

(1st Cir. 1996). The fact that the entire case against Segura is

based on circumstantial, rather than direct, evidence has no

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bearing on sufficiency; both types of evidence provide an

adequate basis for conviction. See U.S. v. Valerio, 48 F.3d 58,

63 (1st Cir. 1995).

The government presented two pieces of evidence that

tended to link Segura to the conspiracy. First was the testimony

of Agent Scott Pelletier of the Maine Drug Enforcement Agency,

who identified Segura as the person engaged in counter-

surveillance during at least one of the drug transactions.

Pelletier was the undercover agent who participated in these

transactions, and his testimony about the possibility of counter-

surveillance was corroborated by a videotape that showed a car

suspiciously circling the area where the drug transaction took

place.

Second was testimony of officers on the scene when

Segura and others were arrested at 173 University Avenue.

Officers testified that they saw Segura running from the bathroom

and heard the toilet flushing and Inspector Robert Reyes

testified that when he ran into the bathroom he saw plastic bags

containing a white powdery substance go down the toilet. After

Segura and others were arrested the police found drugs, numerous

items of distribution paraphernalia and a loaded .357 Magnum at

the scene.

Taken together, Pelletier's identification of Segura

as the counter-surveillance man and Reyes' testimony about the

toilet were sufficient to convict. Construing this evidence in

favor of the government, Segura's presence at two of the drug

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transactions, his presence at what appears to be the drug

conspiracy's center of operations, and his attempt to dispose of

evidence of the conspiracy, taken together show that he had

knowledge of the conspiracy and that he intended to participate

in it. See U.S. v. Santiago, 83 F.3d 20, 23 (1st cir. 1996)

(knowledge and intent are touchstones of conspiracy conviction).

We cannot say that no reasonable jury could have found him

guilty.

B. Segura's sentence

I. A codefendant's possession of a firearm

Segura, like M ndez, contends that he should not have

received a two-level enhancement for possession of a firearm

during the drug offense because he never actually possessed or

used a gun. He was arrested at the residence where the gun was

found, and evidence existed that this residence was the center of

operations for the drug conspiracy. These facts are sufficient.

The sentencing guidelines require only that a gun be present

during some portion of an ongoing crime. See U.S.S.G.

2D1.1(b)(1), commentary at n.3. Because the defendants were

convicted of a continuing conspiracy, the firearm was present

during the crime.

Once the presence of a weapon is established

enhancement is proper unless the defendant demonstrates special

circumstances that show a clear improbability that the weapon was

connected to the drug offense. U.S. v. Lagasse, 87 F.3d 18, 22

(1st Cir. 1996). Segura did not offer any special circumstances

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that would make the connection between the gun and the crime

improbable. The enhancement was proper.

ii. Transaction of a drug sale in a school zone

Segura argues that the government did not offer any

reliable proof that any of the drug sales took place within a

protected zone. He acknowledges that the government offered the

affidavit of Special Agent Bruce Tavers as proof of the proximity

of a junior high school; however, he says that this proof is

insufficient because it lacked an evidentiary foundation.

In this circuit a sentencing court may consider

evidence that would be inadmissable at trial under the rules of

evidence so long as the sentencing court determines that the

evidence has a "sufficient indicia of reliability to support its

probable accuracy." U.S. v. Tardiff, 969 F.2d 1283, 1287 (1st

Cir. 1992). The affidavit of a law enforcement officer who is

familiar with the locale of the drug transaction and the

surrounding area is sufficiently reliable that a court can accept

it as evidence for sentencing purposes. Segura's enhancement for

transacting drug sales within a school zone was sufficiently

supported and proper.

iii. Segura's sentence was partially based on

acquitted conduct

Segura also challenges the fact that his sentence was,

in part, based on acquitted conduct, i.e., his sentence

calculation should not have included the amount of crack cocaine

found at the arrest scene because he was acquitted of all charges

involving possession or distribution of crack cocaine. "A jury's

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verdict of acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so long as

that conduct has been proved by a preponderance of the evidence."

U.S. v. Watts, 117 S. Ct. 633, 638 (1997).

CONCLUSION
CONCLUSION

We AFFIRM the convictions and sentences of all
AFFIRM

appellants.

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