United States v. Patrick

United States Court of Appeals
For the First Circuit

No. 99-1387
No. 99-1388

UNITED STATES OF AMERICA,

Appellee,

v.

SAMUEL PATRICK AND JASON ARTHUR,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Boudin, Lynch, and Lipez, Circuit Judges.

Malcolm J. Barach for appellant Samuel Patrick.

Donald K. Freyleue, with whom Benjamin D. Entine was on
brief, for appellant Jason Arthur.

Karin B. Hoppmann, Attorney, Criminal Division-Appellate
Section, Department of Justice, with whom Donald K. Stern, United
States Attorney, and George Vien, Assistant United States Attorney,
were on brief, for appellee.
May 3, 2001

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 LYNCH, Circuit Judge. This appeal raises questions about the

definition of the "enterprise" element of criminal charges under the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et

seq. ("RICO"), and the admissibility of evidence concerning the

adequacy of police investigations and of investigation tips received by

police officers as to who committed a crime.

Samuel Patrick and Jason Arthur were each convicted on over

six counts of a criminal RICO indictment arising out of their

membership in the Intervale Posse (IVP), a gang that distributed crack

cocaine from 1990 to 1996 in the Dorchester neighborhood of Boston.

Arthur was also convicted of the 1992 murder of a rival drug dealer.

One of their defenses was that the IVP was simply a loose connection of

individual, young drug entrepreneurs, one competing with another.

RICO, they say, was meant to counter organized crime, and there was

nothing particularly "organized" about the crimes committed by the IVP.

They argue that their convictions should be reversed because the judge

improperly instructed the jury, because the evidence did not support a

RICO conviction, and for other reasons.

I.

Jason Arthur and Samuel Patrick were each charged in 1997

with racketeering under 18 U.S.C. § 1962(c), conspiracy to commit that

offense under 18 U.S.C. § 1962(d), and conspiracy to distribute crack

cocaine under 21 U.S.C. § 846. Arthur was charged with two counts and

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Patrick with three counts of possession of crack with intent to

distribute under 21 U.S.C. § 841(a)(1).1 In addition, Arthur was

charged with murder in aid of racketeering under 18 U.S.C. § 1959.

Both were convicted and sentenced to life imprisonment.

II.

We describe the evidence as the jury could reasonably have

found it. During the 1990s, members of the IVP sold crack cocaine in

the Intervale neighborhood of Dorchester, an area of Boston. The IVP

was the successor to an earlier gang, known as "Adidas Park." The gang

gave a new spin to the concept of brand identification. IVP members

wore Adidas clothing, identified themselves and referred to the gang by

signifying the Adidas brand logo (a sign of three fingers signifying

the three stripes on Adidas products), and, in a few instances, owned

mirrors painted with their nicknames and the IVP logo. Members

referred to one another as family. Younger members, often teenagers,

1 Thirteen others were indicted along with Arthur and
Patrick. Twelve pled guilty to various charges prior to trial;
one, Terrence Williams, successfully moved to sever his case
from Arthur and Patrick's, and was convicted at trial of
conspiracy to distribute crack cocaine. The court originally
consolidated Williams' appeal with this one, but then granted
the government's motion to file a separate brief in Williams'
case.

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"pumped"2 (or sold) drugs for the older members, although some younger

members also operated on their own.

Patrick held the supplier's role within the IVP. He decided

who could sell on IVP territory, set the prices for the IVP's crack,

and directed sales by younger members. Patrick also determined when

the gang would eliminate rivals. Arthur supplied crack to the IVP and

also bought crack from Patrick. In addition, Arthur helped keep order

in the IVP, reprimanding younger members for risky behavior that

attracted police attention.

As part of the IVP's operating procedures, IVP members would

page suppliers like Patrick and Arthur to deliver drugs to a customer's

house. At the house, the crack was "cut" and "bagged" in smaller

amounts for resale on the street, and the customer was paid in crack or

money for use of the house. Although IVP members competed with one

another for individual customers, they all profited from increased

sales overall in the neighborhood. Only IVP members could sell on the

IVP's "turf," and the gang used actual and threatened violence to deter

rivals. Members held "sessions" (or meetings) where they discussed

rival drug operations as well as problems with police.

In December 1992, Courtney Thomas, a non-IVP member, was

selling drugs on IVP territory without permission. When an IVP member

2 "Pumping" described a way of serving the drug buyer, just as
a gas station attendant pumps gas for his or her customer.

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named Antwan told Thomas that he could not "pump" on IVP territory,

Thomas threatened him. Antwan informed Arthur, who said he would

"handle it." That evening Arthur met two other IVP members, Cecil

McKnight and Allen Ivy, at a wooded area where the IVP hid drugs and

weapons. Arthur carried two guns. The three men went to the house at

161 Intervale Street where Thomas was reportedly selling drugs. When

Thomas got into his car in front of the house, Arthur fired repeatedly

into the car, killing Thomas and wounding Thomas's companion, Fleurette

Farrell.

In 1995, Jennifer Monteiro, a neighborhood resident and

reported drug dealer, was arrested on unrelated charges involving the

use of fraudulent or stolen credit cards. Monteiro agreed to cooperate

with the police and began making purchases from the IVP, including

several purchases in 1996 from Arthur and Patrick. Audio tapes of

these transactions were made. One purchase occurred on July 24, 1996,

when Monteiro paged Patrick for two ounces of crack. Patrick directed

her to go to a park near a neighborhood school, where Monteiro was met

by a go-between named Terrence. Terrence handed Monteiro the drugs and

then gave the money to Patrick, who was in his parked truck nearby. In

August 1996, police arrested several IVP members, including Patrick and

Arthur. Police seized cash, drugs, scales, and items with the IVP or

Adidas logo from the homes of IVP members. From Jason Arthur's home,

police seized over 300 grams of crack cocaine, several thousand

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dollars, a scale, and a mirror with the IVP logo and the name "Kilo J."

They also seized a handgun from Patrick's truck.

III.

A. RICO Enterprise: Instructions and Sufficiency

Both defendants claim that the district court erred in

rejecting their proposed jury instruction which defined a criminal

"enterprise" under 18 U.S.C.§ 1962(c)3 as having an "ascertainable

structure," and that the jury’s verdict cannot stand on the evidence.

The district court did not err, and the evidence supports the verdict.

The district court charged the jury that under RICO the term

"enterprise":

includes any individual, partnership,
corporation, association or other legal entity,
and any group of individuals associated in fact
although not a legal entity. An enterprise may
be a formal or an informal organization of
individuals so long as they have associated
together for a common purpose. . . . In the
present case, it is alleged that each defendant,
and others, were associated in fact to form an

3 Section 1962(c) makes it unlawful:

for any person employed by or associated with any
enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or
collection of unlawful debt.

Section 1962(d) prohibits conspiracy to violate section 1962(c).

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 enterprise, called among other names, Intervale,
the Intervale Posse, and IVP. To find that an
association in fact existed, you must find that
the alleged enterprise had an ongoing
organization, formal or informal, and that its
various associates functioned as a continuing
unit for a common purpose. This means that
although individuals may come and go, the
enterprise must continue in an essentially
unchanged form during substantially the entire
period alleged in the indictment.

Note that the enterprise element is
different from the racketeering activity element.
Although the proof to establish these elements
may overlap, proof of one does not necessarily
establish the other. Rather, the enterprise must
be an entity separate and apart from the pattern
of racketeering activity in which it engages.

The defendants requested that the district court further

define the term "enterprise" by instructing the jury that "[a]t a

minimum, the enterprise must exhibit some sort of structure for the

making of decisions, whether it be hierarchical or consensual." The

court refused, and defendants now appeal its "enterprise" instruction.

Defendants based their request on a line of cases which they

say support the requirement of an explicit "ascertainable structure"

jury instruction under RICO. See Chang v. Chen, 80 F.3d 1293, 1297

(9th Cir. 1996); United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.

1983), overruled on other grounds by Griffin v. United States, 502 U.S.

46 (1991); United States v. Bledsoe, 674 F.2d 647, 664 (8th Cir. 1982).

Defendants refer to their proposed language as the Bledsoe test. In

Bledsoe, which involved securities fraud, the Eighth Circuit required

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"proof of some structure separate from the racketeering activity and

distinct from the organization which is a necessary incident to the

racketeering" in order to avoid to collapse of the "enterprise" element

with the separate "pattern of racketeering activity" element of a RICO

offense. 674 F.2d at 664. Bledsoe thus required that a RICO

enterprise have an "ascertainable structure distinct from that inherent

in the conduct of a pattern of racketeering activity. . . . [which]

might be demonstrated by proof that a group engaged in a diverse

pattern of crimes or that it has an organizational pattern or system of

authority beyond what was necessary to perpetrate the predicate

crimes." Id. at 665 (internal quotation marks and citation omitted);

see also Chang, 80 F.3d at 1297 (adopting "ascertainable structure"

requirement to avert the danger of the "enterprise [being] no more than

the sum of the predicate racketeering acts"). The prosecution rejoins

that Bledsoe and its successors like Chang use the concept of

"ascertainable structure" simply as an analytic device in determining

whether the evidence was sufficient to support the verdict, and also

argues, in a bit of non-sequitur, that the phrase has no use as a jury

instruction. Cf. Riccobene, 709 F.2d at 223 (evidence sufficient to

satisfy "enterprise" prong where, inter alia, it showed "an

organization with a leader and a group of supervisors, each running his

own operations with 'his own people,' but coordinated with the

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operations of other supervisors to provide greater profits and fewer

conflicts").

Here, the district court took its instruction almost directly

from the language of the Supreme Court's decision in United States v.

Turkette, 452 U.S. 576 (1981), and no more was needed to define the

term "enterprise" for the jury. This court was before asked to adopt

the Bledsoe test; it did not need to resolve the question because the

evidence was sufficient even assuming arguendo the Bledsoe test

applied. See United States v. London, 66 F.3d 1227, 1244 (1st Cir.

1995); see also United States v. Owen, 167 F.3d 739, 752 n.6 (1st Cir.

1999) (noting that First Circuit has not adopted Bledsoe test;

concluding that evidence sufficiently established "enterprise" separate

from "pattern of racketeering activity"). We today explicitly reject

the Bledsoe test as an additional requirement beyond the Turkette

instruction. Indeed, we think the defendants' proposed

Bledsoe instruction could be misleading. The important concept

underlying Bledsoe was that the government must prove both an

"enterprise" and a "pattern of racketeering activity." See Bledsoe,

674 F.2d at 663-65. That concept was specifically captured in the

instruction given by the district court in this case. Bledsoe should

not be torn from its conceptual moorings. So too were instructions

given here on the important concepts that an enterprise is proved, as

Turkette had said, by evidence of an "ongoing organization" that was

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"formal or informal" and by evidence that "the various associates

function as a continuing unit." Turkette, 452 U.S. at 583; see also

Riccobene, 709 F.2d at 221 (saying Turkette defined "illegal

enterprise" for RICO purposes to avoid the danger that the statute

would be construed too broadly). While "enterprise" and "pattern of

racketeering activity" are separate elements of a RICO offense, proof

of the these two elements need not be separate or distinct but may in

fact "coalesce." Turkette, 452 U.S. at 583. The defendants' proposed

jury instruction here addressed not the ongoing nature of the

enterprise -- a problem addressed in Turkette -- but rather its

structure. Here, on the issue of structure and its ascertainability,

the slope is slippery, and the district court appropriately avoided the

slope's edge. Since Congress intended the term "enterprise" to include

both legal and criminal enterprises, see id. at 580-81, and because the

latter may not observe the niceties of legitimate organizational

structures, we refuse to import an "ascertainable structure"

requirement into jury instructions.

Defendants also argue that there was insufficient evidence

of any enterprise. Not so. The gang was ongoing and identifiable: it

changed its name from Adidas to the IVP, it had colors and signs, it

had older members who instructed younger ones, its members referred to

the gang as family, and it had "sessions" where important decisions

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were made, including decisions about taking action against rival drug

dealers.

Defendants protest that the IVP is just a motley crew of

young criminals and that it hardly constitutes the type of highly

sophisticated organized crime that spurred Congress to enact RICO.

Even if the IVP were a fledgling criminal organization, we doubt that

Congress meant to give a pass to such fledgling organizations. In any

event, the IVP was no innocent group of teenagers, but rather was

sophisticated and experienced in its own way in the rough, often

violent business of drug dealing. That there was yet no evidence the

IVP had infiltrated legitimate businesses as organized crime frequently

has done does not insulate the IVP from RICO’s reach. The IVP was well

within Congress’ intended scope. See Turkette, 452 U.S. at 591 ("RICO

is equally applicable to a criminal enterprise that has no legitimate

dimension or has yet to acquire one. Accepting that the primary

purpose of RICO is to cope with the infiltration of legitimate

businesses, applying the statute . . . so as to reach criminal

enterprises, would seek to deal with the problem at its very source.").

B. Sufficiency of the Evidence of Conspiracy

Arthur argues that there was no evidence of any meetings

among the alleged conspirators resulting in Arthur’s agreement to

perform the predicate acts under RICO. Arthur says the fact that he

actually committed two or more acts of racketeering activity is not

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enough to show he was a conspirator. For these purposes, we focus on

the predicate acts of murder and drug dealing.

The government, citing United States v. Shifman, 124 F.3d 31

(1st Cir. 1997), says that a RICO conspiracy may be shown by evidence

that the defendant agrees to commit two or more predicate acts "or in

fact commit[s]" such acts. Id. at 35.4 We rely on an alternate ground:

the well-established legal principle that a conspiracy may be based on

a tacit agreement shown from an implicit working relationship -- here

the relationship between Arthur and other IVP members -- to commit the

Thomas murder. The evidence supports the jury’s conclusion that there

was at least a tacit agreement. There was evidence that the IVP

routinely eliminated the competition by murdering rival drug dealers.

When Arthur was given a report by an IVP member about Thomas selling

drugs on IVP turf, Arthur replied that he would "handle it." Arthur

handled it by murdering Thomas, with the assistance of two other IVP

members.

4 Shifman says that the government must prove: (1) the
existence of an enterprise affecting interstate commerce, (2) that the
defendant knowingly joined the conspiracy to participate in the conduct
of the affairs of the enterprise, (3) that the defendant participated
in the conduct of the affairs of the enterprise, and (4) that the
defendant did so through a pattern of racketeering activity by agreeing
to commit, or in fact committing, two or more predicate offenses. Id.
(emphasis added).

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 As to the drug dealing, there was evidence that the IVP had

"sessions" where members discussed the gang's drug distribution

business. That was enough to permit the inference of an agreement.

Patrick raises the same argument in a summary fashion in his

brief, and we reject it for the same reasons.

C. Evidentiary Rulings

Questions of admissibility and relevance of evidence are

reviewed for abuse of discretion. United States v. Reeder, 170 F.3d

93, 107 (1st Cir.), cert. denied, 528 U.S. 872 (1999).

1. Audio Tape Recordings

Patrick argues that it was error to admit into evidence audio

tape recordings made by government informant Monteiro of her drug

transactions with IVP members, including Patrick. Patrick says the

tapes did not accurately reflect what was said and that he should have

been permitted to inspect the original recordings and to cross examine

as to the equipment used. The net result of the exclusion of this

evidence, he says, violated the Confrontation Clause of the Sixth

Amendment and Rule 403, Fed. R. Evid.

Patrick, however, did cross examine Monteiro about the tapes

and the equipment used, and his objections to the tapes at trial were

more limited than those on appeal. At trial he objected on the grounds

that one tape had only a one-sided conversation and that another tape

had a conversation in which Patrick did not take part.

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 In any event, we ignore the issue of waiver because there was

no error in admitting the tapes. Monteiro authenticated the tapes

under Rule 901, Fed. R. Evid., and the tapes were relevant,

corroborating Monteiro’s testimony. Further, Patrick was given funds

to pay for an analysis of at least one tape, a tape on which Patrick

quoted Monteiro the price for an ounce of crack. The court rejected

the conclusion of Patrick's "expert" that something had been added to

the tapes, finding the expert unqualified and his conclusion

unsupported. The trial judge’s determination that the original tape

would be best preserved for trial use by not turning it over to Patrick

was very reasonable.5

2. Exclusion of Handwritten Notes of Informant Tips

Arthur complains that the district court excluded from

evidence certain handwritten notes found in police files, including one

purporting to contain a statement from a Peter Eden. In common, the

notes recorded tips the police had received about who committed the

Thomas murder. The defense theory was that the police had not

adequately investigated the murder, as evidenced by these notes.

Arthur argues that the notes therefore were not hearsay because they

were not offered for their truth but rather for the inadequacy of the

police investigation of other possible suspects.

5 Finally, to the extent Patrick complains that a second motion
for more money for analysis of the tapes was denied, the court did not
abuse its discretion in denying that motion.

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 The precise question is whether the trial court abused its

discretion in excluding police notes (and related testimony) of

anonymous calls from tipsters about who committed the Thomas murder.

This involves several doctrines, starting with relevance. In fact,

Arthur has two theories, each of which he says created doubt as to his

own guilt: (1) that the notes were evidence that someone else committed

the murder;6 and (2) that the notes were evidence that the police

investigation was unreliable.7 As to the first, evidence that tends to

prove that a person other than the defendant committed the crime is

relevant. See United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.

1996). It must, however, be evidence that there is a connection

between the other perpetrator and the crime, and not mere speculation.

Cf. United States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996)

6 That is the thrust of State v. Flores, 595 N.W.2d 860
(Minn. 1999), a case relied on by Arthur. Flores says a
defendant may seek to introduce evidence of prior bad acts by a
third person tending to show that third person committed the
crime. Id. at 868. Flores also held that such evidence must
have a proper foundation, such as proof of facts that connect
the third person to the crime, "to avoid the consideration of
matters collateral to the crime." Id. (internal quotation marks
omitted).
7 These two theories overlap in places. When, for
example, Arthur asserts that the tipsters said "flatly" that
another person murdered Thomas, he seems less to be defining the
notes as non-hearsay showing the inadequacy of the police
investigation than claiming the notes should have been admitted
for their truth, i.e., that such third person, and not Arthur,
murdered Thomas.

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(concluding that inferences that investors were responsible for alleged

real estate fraud were "so thin that they can barely, if at all, meet

the generous test of relevance under Fed. R. Evid. 401"). When the

evidence is that person X, a non-party, said outside the courtroom that

person Y committed the crime, that evidence is offered for the truth of

the statement and is hearsay. The defendant can call person X as a

witness and have him testify.8 That is not, however, the nature of the

evidence that concerns us. What Arthur sought to introduce were police

notes that person X (often not identified at all) told the police that

person Y (often identified only by a single name) had committed the

Thomas murder. In order to offer the police notes for the truth of

their contents: (a) the notes must be admissible themselves under some

exception to the hearsay rule or be sufficiently trustworthy as to fall

within the residual exception of Fed. R. Evid. 807; (b) the hearsay

within the notes must be admissible; and (c) the evidence must not be

so prejudicial as to violate Fed. R. Evid. 403. See generally 40A Am.

Jur. 2d Homicide § 286 (1999) ("In a prosecution for homicide, as in

prosecutions for other crimes, the accused may introduce any legal

evidence tending to prove that another person may have committed the

crime with which the defendant is charged, provided such evidence is

8 We recognize that anonymous tipsters are hardly likely
to make themselves available to defense counsel.

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not otherwise subject to objection.") (internal footnotes omitted)

(emphasis added).

Arthur argues that police notes may be admissible as business

records under Fed. R. Evid. 803(6), and we shall assume so for purposes

of argument. But where those notes contain information from informants

who are not themselves part of the business of police, that information

is not admissible as an exception to the hearsay rule. The district

court properly ruled that such hearsay within hearsay is not itself

admissible. See Fed. R. Evid. 803 advisory committee's note to para.

6 (citing Johnson v. Lutz, 253 N.Y. 124 (1930), and Gencarella v. Fyfe,

171 F.2d 419 (1st Cir. 1948)); see also United States v. Vigneau, 187

F.3d 70, 75-76 (1st Cir. 1999) (further discussing the issue). Nor do

police notes contain findings of a public agency charged with making

those findings, which would render the notes admissible under Fed. R.

Evid. 803(8). E.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153

(1988). Thus, the informant tips are not admissible for their truth

under the standard exceptions to the hearsay rule and are not otherwise

sufficiently trustworthy to qualify for admission under the residual

exception provided in Rule 807.

Arthur tries to avoid this problem by turning to his second

theory: that the tips are admissible not for their truth but to show

the inadequacy of the police investigation. He relies primarily on a

state case that does use such broad language, Commonwealth v. Reynolds,

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708 N.E.2d 658, 661 (Mass. 1999), but which most likely stands for a

narrower proposition. 9 The phrase "inadequacy of the police

investigation" covers a variety of different problems and cuts across

the full spectrum of relevant and irrelevant evidence. Certain

inadequacies -- for example, those that go to the chain of custody or

the preservation of evidence -- may undercut the reliability of

physical evidence against the accused. See, e.g., Lowenfield v.

Phelps, 817 F.2d 285, 291-92 (5th Cir. 1987) (reasonable trial strategy

for counsel to argue that "sloppy police work" tainted the chain of

custody for certain guns seized by police and "set the stage for an

argument that others were implicated in the murders"). That is not the

problem here. Other inadequacies may lead to the destruction of

exculpatory evidence. That is also not the problem here. The point is

that the phrase "inadequacy of the police investigation" is too broad

and itself says nothing about the relevance of the proffered evidence.

Merely showing that an investigation is sloppy does not establish

relevance. See United States v. Veal, 23 F.3d 985, 989 (6th Cir. 1994)

(no abuse of discretion where district court excluded as irrelevant

evidence that the government's investigation of the case was "sloppy").

Here, the defense theory is that someone else committed the

murder, that this is shown by the fact that other names were given to

9 Reynolds is in any event a case not decided under the
federal rules of evidence.

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the police by the tipsters, and that the police failed to take steps to

adequately eliminate other possible suspects before settling on Arthur,

thereby creating doubt as to Arthur's guilt. However, there was little

to show that the notes of the tipsters' calls in fact furthered

Arthur's theory, or that there was an inadequate investigation,10 and

so the note contents were of questionable materiality under Fed. R.

Evid. 401. But even if the notes had some probative value, the

district court did not abuse its discretion in excluding them under

Fed. R. Evid. 403.

Such speculative evidence of the inadequacy of the police

investigation would have shifted the jury's focus from the accusations

against Arthur to accusations against the police, thus creating a real

danger of unfair prejudice and jury confusion that "substantially

outweighed" the evidence's probative value. Fed. R. Evid. 403;

see United States v. McVeigh, 153 F.3d 1166, 1190-92 (10th Cir. 1998),

cert. denied, 526 U.S. 1007 (1999). Arthur wrongly relies on Crosby,

supra, which was concerned with the exclusion of evidence that a

victim's husband was more likely her assailant than was the defendant.

See 75 F.3d at 1346-48. The Crosby court's determination that it was

error to exclude evidence of sloppy police work was tied to its more

10 Detective Mahoney, the officer in charge of the Thomas
investigation, testified on voir dire that his usual practice was to
follow up on informant tips, though he could not recall, six years and
"400 homicides" later, what action he took on each and every tip. This
does not suggest an inadequate investigation of the Thomas murder.

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fundamental assessment that it was error to exclude the strong direct

evidence that someone else (the victim's husband) had committed the

crime, which was the defendant's theory of the case. See id. at 1348

("The excluded evidence [of sloppy police investigation] would have

lent support to the defendant's theory that someone else beat [the

victim] and undermined the prosecutor's claim that a more thorough

investigation would have turned up nothing of value. Rather than being

limited to poking holes in the prosecution's case, defendant's counsel

could have plausibly argued that a more thorough investigation would

have produced evidence incriminating [the victim's husband]."). Crosby

thus does not stand for the proposition that evidence of sloppy police

investigations is per se admissible.

Arthur also argues that a note based on the statement from

Peter Eden, a drug dealer, should have been admitted under the hearsay

exception for declarations against penal interest. See Fed. R. Evid.

804(b)(3). The note of Peter Eden's statement around the time of his

arrest says that his (Eden's) boss ordered the murder of Thomas, which

Arthur argues inculpates Eden himself in both a drug conspiracy and the

murder.11 At trial, Eden invoked his Fifth Amendment privilege against

11 The note attributes the statement to a Paul Eden, not
Peter Eden, but is apparently a record of Peter Eden's arrest.
Arthur's contention is sheer speculation that this shows that
the "Paul" referred to in the note was Peter Eden's boss, and
therefore that this Paul, and not Arthur, murdered Thomas. The
record also shows there was an IVP member named Paul.

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self-incrimination and refused to testify. Arthur then sought

admission of the note under Fed. R. Evid. 804(b)(3). Arthur argued

that the Eden statement was exculpatory as to Arthur because it tended

to implicate Eden's boss (whom, he says, was certainly not Arthur), and

that the information was corroborated by the fact that the police files

were "fairly bursting with notes and memoranda" detailing tips

identifying someone named "Paul, "Paulo" or "Pablo" as Thomas's killer.

The district court refused to admit the note because it

doubted that the note exculpated Arthur, thought Arthur might himself

be the "boss" referred to, and found no corroborating circumstantial

evidence indicating the trustworthiness of the statement.

There was no abuse of discretion in excluding the note. Rule

804(b)(3) provides that a statement "tending to expose the declarant to

criminal liability and offered to exculpate the accused is not

admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement." Id. (emphasis added). It was up to

Arthur, as the proponent, to clearly indicate the admissibility of the

statement, and he did not establish that it was either trustworthy or

exculpatory. The district court correctly viewed the statement in

context. Williamson v. United States, 512 U.S. 594, 603 (1994). The

author of the Eden note was never identified; the arresting officer

denied it was his note, said he did not know who wrote the note, and

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did not recall speaking with Eden about a homicide. The note

apparently misidentifies Peter Eden as Paul Eden and refers to an

unnamed boss. There is no firm evidence as to whether the universe of

plausible bosses includes or excludes Arthur.12 That there were

anonymous tips from others identifying the murderer as a Latino man

named Paul, Paulo, or Pablo suggests that Jason Arthur was not the

murderer, but it is not an abuse of discretion to conclude that those

tips do not particularly corroborate the trustworthiness of this note.

Arthur argues, alternatively, that the various tip notes are

admissible because his Sixth Amendment right to present exculpatory

evidence here trumps the rules against hearsay evidence. Arthur cites,

inter alia, Chambers v. Mississippi, 410 U.S. 284 (1973), which

declared unconstitutional the mechanistic exclusion under Mississippi

law of a third person's multiple confessions to the crime for which the

defendant was tried. See id. at 299-301; see also Pettijohn v. Hall,

599 F.2d 476, 480-81 (1st Cir. 1979) (violation of defendant's Sixth

Amendment rights to exclude testimony of eyewitness who had identified

another person as the guilty party). Here, the tip information lacked

the indicia of reliability of the testimony in Chambers, and, in

12 Arthur says that Peter Eden operated out of 161
Intervale Street, an area not within IVP territory. The
district court thought the evidence was otherwise.

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contrast to Chambers, was outside the basic rationale of the exception

for declarations against penal interest. There was no error.

3. Exclusion of Portions of Search Warrant Affidavit

The district court excluded two portions of an affidavit in

support of the search warrant for Fleurette Farrell's belongings.

Arthur concedes that the statements in the affidavit are hearsay but

says they are nonetheless trustworthy and should have been admitted

because the statements about the timing of certain events would have

been useful to impeach the government’s principal witnesses against

him. First, Arthur claims that the statement in the affidavit that

police were still executing a search warrant at 161 Intervale Street

when investigators arrived on the scene of the Thomas homicide

contradicts the testimony of McKnight and Ivy, the key government

witnesses, that the police had left the building before the shooting.

Second, he argues that other statements in the affidavit contradict

Farrell's testimony concerning the time she arrived at 161 Intervale

Street and whether she actually entered the building.

The district court acted within its discretion.13 Both

statements contain multiple levels of hearsay, and Arthur points to no

specific rule supporting admission of the testimony. Nor does the

13 Arthur also claims that the district court erred in allowing
the government to cite Farrell's testimony in closing argument, where,
based on the affidavit, it had reason to know her testimony contained
false and misleading statements. There was no error.

-23-
residual exception provided in Fed. R. Evid. 807 help Arthur since he

did not raise the argument. The exception was, in any event,

unavailable since Arthur could have called as a witness any officer who

actually conducted the search of 161 Intervale Street, rather than

simply relying on the hearsay statements. See Fed. R. Evid. 807

(requiring proof that "the statement is more probative on the point for

which it is offered than any other evidence which the proponent can

procure through reasonable efforts").

4. Altering a Chalk on Rebuttal Summation

Arthur argues the district court erred in allowing the

prosecutor to "alter" a chronology used as a chalk (or jury aid) on

rebuttal summation to support the government's position as to the time

of Thomas's death. Although prosecution witness Farrell testified that

the shooting occurred around 10:15 p.m., the defense theory was that it

occurred earlier, between 8:30 and 9:00 p.m. On summation, the

prosecutor used a timeline to assist the jury in understanding the

sequence of events surrounding the Thomas murder. The chalk, which was

never entered into evidence, initially listed the following times:

undercover purchase (8:45 p.m.); search warrant (9:00 p.m.); and time

of homicide (10:17 p.m.). On rebuttal summation, the prosecutor added

to the chalk that Thomas was pronounced dead at 10:46 p.m., a fact

already in evidence. This was entirely proper. Cf. United States v.

Morse, 491 F.2d 149, 153 n.6 (1st Cir. 1978) ("use [of chalks] must be

-24-
fully supported in all respects by corroborating admissible evidence").

Not only was there no prejudice, but the prosecutor actually reinforced

Arthur's position that 10:46 p.m. represented not the time Thomas died

but rather the time he was pronounced dead.

D. Brady Claim

Patrick argues vaguely that the prosecution withheld

exculpatory information in violation of Brady v. Maryland, 373 U.S. 83

(1963). Under Brady, the government must provide the defense with

evidence in its possession "where the evidence is material either to

guilt or to punishment." Id. at 87. Evidence relating to the

impeachment of prosecution witnesses is deemed to be exculpatory within

the meaning of the Brady rule. See Giglio v. United States, 405 U.S.

150, 154-55 (1972). For evidence to be "material" under Brady, there

must be "a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different." United States v. Bagley, 473 U.S. 667, 682 (1985); see

United States v. Perkins, 926 F.2d 1271, 1275 (1st Cir. 1991). "Where

. . . the defense is confronted not with complete suppression, but with

delayed disclosure, reversal will be granted only if defendants were

denied the opportunity to use the disclosed material effectively."

United States v. Drougas, 748 F.2d 8, 23 (1st Cir. 1984).

Patrick's brief fails to describe fully the nature of the

problem or why he was prejudiced by learning the information at trial

-25-
and not earlier. The government's brief helpfully explains the issue.

Two police officers who were conducting surveillance at the time,

government informant Jennifer Monteiro, and IVP member Allen Ivy all

testified about the same July 24, 1996 sale of drugs. They had

different recollections about whether it was Patrick or another IVP

member who was in the area on a bicycle around the time of the

transaction. However, there is no evidence the government knew of the

discrepancy before trial, and defense counsel cross examined on the

different versions. During trial the names of the two police officers

were given to defense counsel. Both officers were called and

testified.14 There was neither a Brady violation nor prejudice.

E. Post-Trial Motion for Investigative Funds

Arthur claims the district court abused its discretion in

denying his motion for additional funds under 18 U.S.C. § 3006A to

conduct a post-trial investigation. Arthur's counsel told the trial

court he needed the funds to find additional witnesses who would cast

doubt on Farrell's testimony. Although he knew the name of one witness

who was at 161 Intervale Street on the night of the Thomas murder,

counsel conceded he was "speculating on precisely what [these

witnesses] would say." The district court found no evidence to support

the conclusion that exculpatory evidence was withheld and denied the

14 Neither officer was able to identify the male who "burned"
their surveillance operation by looking into their vehicle.

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motion on that basis alone.15 A denial of a motion for funds under

section 3006A is reviewed for abuse of discretion. See United States

v. De Jesus, 211 F.3d 153, 155-56 (1st Cir. 2000). We have carefully

reviewed the record, and find that the district court did not abuse its

discretion in denying the motion.

F. Sentencing

Defendants also challenge their sentences on various grounds.

Patrick asserts that the district court wrongly sentenced him

based on its finding that he was involved with more than 1.5 kilograms

of crack cocaine because the court denied his motion under 18 U.S.C. §

3006A for an independent examination of some of the crack cocaine to

determine its weight. Patrick also challenges his four-level

enhancement for his role as a "leader or supervisor" under U.S.S.G. §

3B1.1 and the district court's refusal to depart downward based on his

family ties and responsibilities.

Arthur argues that the district court erred in imposing a

three-level enhancement for his role as a "manager or supervisor" under

U.S.S.G. § 3B1.1 and a two-level enhancement for employing juveniles in

the drug operations under U.S.S.G. § 3B1.4.

Patrick and Arthur also each make claims based on Apprendi

v. New Jersey, 120 S. Ct. 2348 (2000).

15 The court denied Arthur's new trial motion on the same
basis.

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 We discuss these arguments in turn and affirm the sentences.

1. Denial of Motion for Funds to Conduct Independent Weighing

In connection with his sentence, Patrick appeals the district

court's denial of his motion for funds to conduct an independent

weighing and examination of the amount of crack cocaine attributed to

him. We review his claim for abuse of discretion, see De Jesus, 211

F.3d at 155, and find none. Patrick correctly points out that due

process considerations animate motions for investigative funds under

section 3006A. Still, "concern for fairness does not mean that all

applications should be granted regardless of merit." United States v.

Mateos-Sanchez, 864 F.2d 232, 240 (1st Cir. 1998). Here, Patrick was

able to extensively cross examine the government chemist, who testified

as to the weight of the crack cocaine from the various transactions,

and Patrick presented the court with no reason why the chemist's

determinations might be questionable. Moreover, the issue Patrick

argues would not affect his sentence since his conspiracy conviction

renders him responsible for all reasonably foreseeable amounts of drugs

distributed in furtherance of the conspiracy. See U.S.S.G. §

1B1.3(a)(1)(B) (Relevant Conduct); United States v. Collazo-Aponte, 216

F.3d 163, 200 (1st Cir. 2000) ("In the context of a drug conspiracy, a

defendant is also accountable for the conduct of others if that conduct

is (1) reasonably foreseeable to the defendant and (2) committed in

furtherance of a jointly undertaken criminal activity."). The district

-28-
court found this amount to be well over 1.5 kilograms, and there is no

real claim that this finding was wrong.

2. Sentencing Enhancements

Review of challenges to the evidentiary support of a

sentencing guidelines enhancement is for clear error. See, e.g.,

United States v. Coviello, 225 F.3d 54, 64-65 (1st Cir. 2000). Patrick

challenges the four-level enhancement for his role as an "organizer or

leader" of an extensive criminal activity under U.S.S.G. § 3B1.1(a).

The district court found that Patrick occupied "the primary role" in

the IVP and was considered "the undisputed leader" by older and younger

members alike. The record clearly supports this finding. Patrick had

ultimate decisionmaking authority in the IVP (Arthur, for one, referred

to Patrick as "chief" and "top dog"). He determined who could sell on

IVP territory, decided when to take action against rival drug dealers,

recruited juvenile accomplices, and supplied the IVP with a large

quantity of drugs. See U.S.S.G. § 3B1.1 comment (n. 4) (listing

factors distinguishing "a leadership and organizational role from one

of mere management or supervision").

Arthur objects to the three-level enhancement for his role

as a "manager or supervisor" under U.S.S.G. § 3B1.1(b). The district

court found that while Arthur was lower in the IVP hierarchy than

Patrick, he supervised and managed drug transactions since he

determined the quantity involved in each particular transaction.

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Arthur also objects to the two-level enhancement under section 3B1.4

for "using a minor to commit a crime." The district court found that

numerous minors were used in the RICO and drug conspiracies and that

Arthur himself used minors to sell drugs. Neither finding was clearly

erroneous.

The three-level enhancement for Arthur's managerial or

supervisory role was supported by evidence that he owned and

distributed large quantities of crack (over 300 grams were found in his

house), gave orders to younger IVP members, and used violence to

eliminate rivals like Thomas. See United States v. Alicea, 205 F.3d

480, 485 (1st Cir.) ("[T]he inference that the [defendant] was [the

gang's] leader flows rationally from the evidence that he owned the

drugs, that he gave orders freely, and that he was prepared to use

extreme measures if anything went awry."), cert. denied, 121 S. Ct. 256

(2000). With respect to the two-level enhancement for employing

juveniles, Arthur relies on evidence that juveniles worked for Patrick

or another IVP member, and that no witness testified that Arthur

himself employed juveniles. However, because Arthur was convicted of

conspiracy, his sentence could be enhanced based on his co-

conspirators' reasonably foreseeable use of juveniles to further the

IVP's activities. See U.S.S.G. § 1B1.3(a) ("adjustments in Chapter

Three" must be determined in a conspiracy based on "all reasonably

foreseeable acts and omissions of others in furtherance of the jointly

-30-
undertaken criminal activity"); see also United States v. Li, 206 F.3d

78, 86-87 (1st Cir.), cert. denied, 121 S. Ct. 379 (2000).

3. Downward Departure

A district court's discretionary refusal to depart downward

is unreviewable unless the court believed it lacked authority to do

so. See, e.g., United States v. Snyder, 235 F.3d 42, 51 (1st Cir.

2000); United States v. Lauzon, 938 F.2d 326, 330 (1st Cir. 1991).

Here, the district court, exercising its discretion, found it

inappropriate to depart because Patrick had not identified any factors

that took his case outside the "heartland." See Koon v. United States,

518 U.S. 81, 95 (1996). Finding no indication that the district court

believed it lacked authority to depart downward, we affirm.

4. Apprendi Claims

Neither defendant raised any Apprendi argument before the

district court, and so we review their Apprendi arguments here for

plain error. See United States v. Robinson, 241 F.3d 115, 119 (1st

Cir. 2001); United States v. Mojica-Baez, 229 F.3d 292, 306-07 (1st

Cir. 2000). In Apprendi, the Supreme Court held that "[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt." 120 S. Ct. at 2362-63.

We reject Patrick's Apprendi argument because Patrick was previously

convicted of a drug felony, and because the record establishes that no

-31-
jury would have failed to find beyond a reasonable doubt that his

(various) drug crimes here involved over 5.0 grams of cocaine base,

thus triggering a maximum sentence of life imprisonment. See 21 U.S.C.

§ 841(b)(1)(B)(iii); 18 U.S.C. § 1963. Patrick relies on United States

v. Fields, 242 F.3d 393 (D.C. Cir. 2001), which found plain error under

Apprendi where there was arguably insufficient evidence of drug

quantity to meet the proof beyond a reasonable doubt standard. Id. at

397. There was no such insufficiency here.

Arthur cites Apprendi as bearing upon his attack on his

sentencing guideline enhancements. We reject that challenge.

See, e.g., Robinson, 241 F.3d at 121-22. As to Arthur's drug

crimes, the record establishes that no jury could have failed to

find beyond a reasonable doubt that all of those crimes involved

more than five grams of crack cocaine. The drug crimes, coupled

with Arthur's two prior felony drug convictions, subjected him

to a maximum sentence of life imprisonment. See 21 U.S.C. §

841(b)(1)(B)(iii). In addition, the jury found beyond a

reasonable doubt that Arthur committed murder, which carries a

mandatory sentence of life imprisonment under Massachusetts law,

see Mass. Gen. Laws ch. 265, § 2, as one of his predicate acts

of racketeering. Thus, Arthur's maximum sentence for

-32-
racketeering and racketeering conspiracy was life imprisonment.

See 18 U.S.C. § 1963.

IV.

Defendants' convictions and sentences are affirmed.

So ordered.

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