USCA1 Opinion
April 16, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1890
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL BARNETT,
Defendant, Appellant.
_____________________
No. 91-1891
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY JORDAN,
Defendant, Appellant,
_____________________
No. 92-1778
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY JORDAN,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this Court issued March 29, 1993, is amended as
follows:
Page 22, line two of text after block quote, should read: . . .
476 U.S. 1115 (1986) . . . .
April 7, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1890
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL BARNETT,
Defendant, Appellant.
_____________________
No. 91-1891
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY JORDAN,
Defendant, Appellant,
_____________________
No. 92-1778
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY JORDAN,
Defendant, Appellant.
____________________
3
ERRATA SHEET
The opinion of this Court issued March 29, 1993, is amended as
follows:
Page 28, last line of text, should read: . . . since there were
none.
March 29, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1890
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL BARNETT,
Defendant, Appellant.
_____________________
No. 91-1891
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY JORDAN,
Defendant, Appellant,
_____________________
No. 92-1778
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY JORDAN,
Defendant, Appellant.
____________________
5
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr and Boudin, Circuit Judges.
______________
____________________
Gayle C. Wintjen with whom McGuinness & Parlagreco was on brief
_________________ ________________________
for appellant Michael Barnett.
George F. Gormley for appellant Barry Jordan.
_________________
Joseph M. Walker III, Assistant United States Attorney, with whom
_____________________
A. John Pappalardo, United States Attorney, was on brief for appellee.
__________________
____________________
March 29, 1993
____________________
CYR, Circuit Judge. Appellants Michael Barnett and Barry Jordan
CYR, Circuit Judge.
_____________
were charged, in a three-count indictment, with conspiracy to manufac-
ture and possess with intent to distribute methamphetamine in viola-
tion of 21 U.S.C. 846, possession with intent to distribute metham-
phetamine in violation of 21 U.S.C. 841(a) (1), and possession of a
listed chemical in violation of 21 U.S.C. 841(d)(1). Barnett was
convicted on all three counts at trial; Jordan pleaded guilty to all
three counts shortly after the commencement of trial. Each was
sentenced to a thirty-year prison term and a ten-year term of super-
vised release. On appeal, Barnett raises several challenges to his
conviction, and joins Jordan in contesting the drug-quantity finding
made by the district court at sentencing. We affirm.
I
I
BACKGROUND
BACKGROUND
__________
In March 1990, the United States Drug Enforcement Agency ("DEA")
began investigating a suspected conspiracy to manufacture and distrib-
ute methamphetamine. Surveillance was initiated at three sites in the
Scituate, Massachusetts area: the residences of each appellant and
the residence of their codefendant, Timothy Fitzgerald.1
Approximately a year before the investigation began, a trailer
storage company had delivered a forty-foot trailer to Fitzgerald's
____________________
1Fitzgerald was acquitted at trial.
3
residence in Scituate. The employee who made the delivery later
testified that the recipient of the trailer, known to him as "Tim,"
instructed that the trailer be placed as far back as possible into the
woods located on the property. Barnett subsequently rented the
trailer from Fitzgerald.
In early May, 1990, undercover DEA Agent John Kelly offered to
sell Jordan hydriodic acid ostensibly stolen by Kelly.2 At their
meeting, Jordan explained that his "chemist" had enough pseudoephed-
rine to produce forty pounds (eighteen kilograms) of methamphetamine,
but needed twenty pints of hydriodic acid for the manufacturing
process. During their tape-recorded conversation, Jordan agreed to
buy twenty pints of hydriodic acid, and to provide Kelly with four
ounces of methamphetamine in return. Jordan assured Kelly that he
would receive four "uncut" ounces, and suggested that Kelly could
double the volume by diluting the pure methamphetamine with an equal
amount of "cut," then sell the resulting eight ounces for $2,000 an
ounce.
Jordan described the methamphetamine manufacturing process to
Kelly, explaining that it took seven to eight days, and that his
chemist produced ten pounds of methamphetamine in each batch. To
allay Kelly's concern about the danger of a laboratory explosion,
____________________
2Hydriodic acid, a listed chemical, is essential to methamphet-
amine production using the "ephedrine reduction process," which also
requires either ephedrine or pseudoephedrine; red phosphorus may also
be used as a purifying agent. To convert the methamphetamine into
powder for distribution, it is dissolved into freon liquid, then
bubbled in hydrogen chloride gas.
4
Jordan explained that his chemist had been manufacturing methamphet-
amine for ten years, and volunteered that he had assisted the chemist
in preparing eight to ten batches one summer.3
As promised, on May 16, 1990, Kelly delivered two boxes contain-
ing twenty half-liter bottles (approximately twenty pints) of hyd-
riodic acid to Jordan. A different DEA agent followed Jordan to
Barnett's residence, where he observed Jordan and Barnett unloading
two boxes from the trunk of Jordan's car.
The DEA conducted a series of aerial surveillance fly-overs
during May 1990. A fly-over of the Fitzgerald residence on or about
May 27 revealed an electrical power cord running from the main house
to the trailer. (The ephedrine reduction process requires a power
source to heat the chemicals.)
Two subsequent fly-overs of the Fitzgerald residence were con-
ducted using an infrared heat-detecting device which operates in
either of two polarity modes: "white-hot" or "black-hot." When the
device is in the white-hot mode, objects emitting heat appear white on
an attached screen; in the black-hot mode, heat-emitting objects
appear black. The device detected no heat emission from the trailer
during a fly-over on May 28. On May 30, Massachusetts State Police
____________________
3After pleading guilty during trial, Jordan submitted an affida-
vit in which he insisted that these statements were mere "puffing,"
intended to convince Kelly that he was willing and able to complete
their transaction. The affidavit attests that Jordan knew nothing
about the manufacture of methamphetamine, and that his only role in
the enterprise was to obtain hydriodic acid in exchange for a small
amount of money to support his heroin habit.
5
Trooper Richard Welby, who had relatively little experience with the
infrared equipment, conducted another fly-over. Welby, erroneously
believing the device was in the white-hot mode, observed that the
trailer appeared white on the screen, and concluded that it was
emitting heat. Subsequent analysis revealed, however, that the device
actually was in the black-hot mode during the May 30 fly-over, and the
infrared images, properly interpreted, indicated that the trailer was
emitting no detectible heat.
On the afternoon of May 30, a DEA agent followed Barnett to the
Fitzgerald property. When Barnett disappeared down the driveway, the
agent left his vehicle and surreptitiously followed on foot. The
agent spotted the trailer and saw Barnett inside. The agent noticed
several blue buckets, a white radiator, and two boxes in the rear of
the trailer. As the agent watched, Barnett scraped the bottom of one
of the blue buckets for approximately five minutes, then poured liquid
into the bucket. Barnett left the trailer and entered the main house,
returning with several paper towels with which he filtered the yellow
slushy contents of the bucket, then poured the filtered substance into
a gray painter's tray. Barnett made another trip to the main house,
this time returning with clear plastic sandwich bags. He picked up
the gray painter's tray, rocked it back and forth several times, then
poured the yellow slushy substance into one of the bags, double-bagged
it, and returned once again to the main house.
The DEA agent returned to his vehicle, and waited for Barnett to
drive away. After about twenty-five minutes, Barnett left the
6
Fitzgerald property and drove to a shopping center, unaware that he
was being followed by the agent. When the agent pulled into the
shopping center parking lot, he noticed a second individual in Bar-
nett's vehicle. The agent identified the second individual as appel-
lant Jordan.
On May 30, DEA Agent Lemon compiled the information obtained from
the various surveillance operations (including the erroneous heat-
imaging data interpretation) in an affidavit, which he attached to an
application for a warrant to search the trailer on the Fitzgerald
property, the Fitzgerald and Jordan residences, and a residence
believed to be occupied by Barnett.
The investigation culminated early the next morning when the
search warrants were executed. First, agents searched the Fitzgerald
trailer, unveiling a partially assembled laboratory containing an
array of chemicals, including hydriodic acid, acetone, freon, and
hydrogen chloride gas, and an assortment of equipment associated with
methamphetamine production, including a radiator, a fan, flasks,
tubes, and a heater-timer. Three ounces of methamphetamine crystals
and a bucket containing approximately one pound of methamphetamine
crystals in two and one-half pounds of an acetone/freon solution were
also discovered. Subsequent analysis determined that the methamphet-
amine found in the bucket was between 90 and 100 percent pure.
DEA agents arrested Jordan and Fitzgerald at their respective
residences. At Jordan's residence, agents seized a small quantity of
a mixture containing heroin and methamphetamine, as well as a valium
7
tablet, several hypodermic needles, and several publications describ-
ing the methamphetamine manufacturing process. At Fitzgerald's
residence, agents found a piece of paper listing the chemical ingredi-
ents needed to produce methamphetamine using the ephedrine reduction
process ("the Fitzgerald chemical list").
Barnett no longer resided at the residence for which the fourth
search warrant had been obtained. When DEA agents arrested Barnett at
his new residence, he was advised of his Miranda rights and that the
_______
laboratory had been discovered at the Fitzgerald property. Agents
searched Barnett's new residence,4 and discovered a warehouse re-
ceipt. In response to a question from Agent Lemon about the receipt,
Barnett revealed that the remaining equipment and chemicals were in a
storage bin at the warehouse. A warrant was secured and the search of
the storage bin uncovered approximately fifteen pounds of red phospho-
rous, a seventy-pound drum containing an unspecified quantity of
hydriodic acid, a fifty-kilogram container of pseudoephedrine slightly
less than half full, and various other chemicals, glassware, cooking
devices, protective gear and gloves.
At DEA headquarters, after determining that Barnett had been
advised of his Miranda rights, DEA agent Boeri engaged Barnett in
_______
conversation about the methamphetamine operation. In response to
Boeri's questions, Barnett admitted that he was the "chemist," indi-
cated that he had experienced no difficulty obtaining chemicals, and
____________________
4Barnett contests the district court ruling that the warrantless
search was consensual. See infra at pt. II.B.1.
___ _____
8
explained that his methamphetamine was "ninety nine and one percent"
pure as a consequence of the two "extra" manufacturing steps he
performed.
Five days into their joint trial, Jordan pleaded guilty to all
counts. Thereafter, the jury convicted Barnett, and acquitted
Fitzgerald, on all counts.
II
II
DISCUSSION
DISCUSSION
__________
A. Sentencing Issues
A. Sentencing Issues
_________________
Barnett and Jordan challenge the sentencing court's determination
that each was responsible for twenty-nine kilograms of pure metham-
phetamine. Jordan alone contests the court's drug purity ruling. We
review for clear error, see 18 U.S.C. 3742(e); United States v.
___ ______________
Panet-Collazo, 960 F.2d 256, 262 (1st Cir.), cert. denied, U.S.
_____________ _____ ______ ___ _
, 113 S. Ct. 220 (1992); United States v. Weston, 960 F.2d 212, 220
_____________ ______
(1st Cir. 1992), with a view to whether the factual findings made by
the sentencing court were supported by a preponderance of the reliable
information. See, e.g., United States v. Rodriguez-Cardona, 924 F.2d
___ ____ _____________ _________________
1148, 1155 (1st Cir.), cert. denied, U.S. , 112 S. Ct. 54
_____ ______ ____ ____
(1991); United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir.
_____________ ______________
1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2039 (1991).
_____ ______
1.Drug Quantity
1.Drug Quantity
_____________
The district court adopted the drug-quantity findings set out in
9
the presentence reports ("PSRs").5 Each PSR provided, in relevant
part:
In this offense, the defendant secured a 50 kilogram drum of
pseudoephedrine which would make 29 kilograms of pure metham-
phetamine. There was every indication that they had the
materials to produce this full amount. As such, the Drug
Quantity Table under [s]ubsection (c), offenses involving at
least 10 kilograms but less than 30 kilograms of pure metham-
phetamine provides for a base offense level of 40.
Appellants insist that the court overestimated the capacity of their
drug manufacturing operation and that their sentences should have been
based exclusively on the quantity of methamphetamine seized.
The sentencing guidelines direct that a defendant who is convict-
ed of conspiring or attempting to commit any offense involving a
controlled substance shall be assigned the same base offense level "as
if the object of the conspiracy or attempt had been completed."
U.S.S.G. 2D1.4. Further guidance is provided in an application
note:
Where there is no drug seizure or the amount seized does not
__ ___ ______ ______ ____ ___
reflect the scale of the offense, the sentencing judge shall
_______ ___ _____ __ ___ _______
approximate the quantity of the controlled substance. In
making his determination, the judge may consider, for exam-
ple, the price generally obtained for the controlled sub-
stance, financial or other records, similar transactions in
controlled substances by the defendant, and the size or
___ ____ __
____________________
5Appellants mistakenly suggest that the court made no specific
finding as to the quantity of drugs for which they were being held
responsible. The court checked the box on the "Statement of Reasons"
form attached to the judgment relating to each defendant, thereby
clearly indicating that "[t]he court adopt[ed] the factual findings
and guideline application in the presentence report." We therefore
reject their Rule 32(c)(3)(D) claim.
10
capability of any laboratory involved.
__________ __ ___ __________ ________
U.S.S.G. 2D1.4, comment. (n.2) (1991) (emphasis added).
Three ounces of methamphetamine crystals, and a bucket containing
an additional pound of methamphetamine crystals in two and one-half
pounds of liquid, were seized. Nevertheless, the district court
reasonably concluded that the quantity of methamphetamine seized did
not accurately reflect the scale of the offense, see id., especially
___ ___
in view of Jordan's admissions that his "chemist" had at hand the
ingredients with which to produce forty pounds of methamphetamine, and
in view of the equipment found in the trailer and storage facility,
and the sizable quantities of precursor chemicals seized. Accord-
ingly, under the sentencing guidelines the district court did not err
in estimating the drug quantity.
The court based its drug-quantity calculation on the amount of
methamphetamine producible with fifty kilograms of pseudoephedrine.
Barnett and Jordan object to this calculation because it disregards
the undisputed fact that the fifty-kilogram drum contained only
twenty-three kilograms of pseudoephedrine when it was seized. More-
over, Jordan insists that the court's approximation of the quantity of
methamphetamine was flawed because other essential precursor chemicals
were not seized in the quantities required to produce twenty-nine
kilograms of methamphetamine, in particular hydriodic acid.
In approximating the producible quantity of controlled substance,
the sentencing court may consider the amount of precursor chemicals
11
possessed. See, e.g., United States v. Beshore, 961 F.2d 1380, 1383-
___ ____ _____________ _______
84 (8th Cir.), cert. denied, U.S. , 113 S. Ct. 241 (1992), and
_____ ______ ___ ___
cert. denied, U.S. , 113 S. Ct. 243 (1992); United States v.
_____ ______ ____ ____ _____________
Short, 947 F.2d 1445, 1456-58 (10th Cir. 1991), cert. denied, ___ U.S.
_____ _____ ______
___, 112 S. Ct. 1680 (1992); United States v. Aichele, 941 F.2d 761,
_____________ _______
766 (9th Cir. 1991); United States v. Macklin, 927 F.2d 1272, 1281
______________ _______
(2nd Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 146 (1991); United
_____ ______ ______
States v. Kingston, 922 F.2d 1234, 1236-38 (6th Cir. 1990), cert.
______ ________ _____
denied, ___ U.S. ___, 111 S. Ct. 2054 (1991); United States v.
______ _____________
Smallwood, 920 F.2d 1231, 1236-38 (5th Cir.), cert. denied, ___ U.S.
_________ _____ ______
___, 111 S. Ct. 2870 (1991). Although the sentencing court must "'err
on the side of caution'" in selecting from among plausible alternative
drug-quantity estimates, United States v. Sklar, 920 F.2d 107, 113
______________ _____
(1st Cir. 1990) (quoting United States v. Walton, 908 F.2d 1289, 1301
_____________ ______
(6th Cir.), cert. denied, __ U.S. __, 111 S. Ct. 273 (1990)), we
_____ ______
cannot conclude that its approximation is constrained by the precur-
sor-chemical quantities actually seized, see Beshore, 961 F.2d at 1383
___ _______
(approximation of drug quantity "does not require that every precursor
chemical be present"). Rather, U.S.S.G. 2D1.4 expressly authorizes
consideration of the size or capability of any laboratory. See United
____ __ __________ __ ___ __________ ___ ______
States v. Havens, 910 F.2d 703, 705 (10th Cir. 1990), cert. denied,
______ ______ _____ ______
___ U.S. ___, 111 S. Ct. 687 (1991) (explaining that a drug-quantity
estimate "should be equal to the amount of drugs produceable if the
precursor chemicals possessed by the defendant were combined with
proportionate amounts of the missing ingredients including processing
12
equipment"); see also United States v. Bertrand, 926 F.2d 838, 846
___ ____ _____________ ________
(9th Cir. 1991) (finding no clear error in drug-quantity approximation
based on capacity of methamphetamine lab, notwithstanding lack of
hydriodic acid); Smallwood, 920 F.2d at 1237 (upholding drug-quantity
_________
finding notwithstanding absence of precursor chemicals); cf. United
___ ______
States v. Gerante, 891 F.2d 364, 368-70 (1st Cir. 1989) (basing
______ _______
approximation of drug quantity on discovery at defendant's residence
of $68,000 believed to be proceeds from recent drug sale). As we see
it, the quantity of essential precursor chemicals seized, like the
capacity of the laboratory and the evidence relating to the overall
scheme, see Smallwood, 920 F.2d at 1237-38, is but one among several
___ _________
circumstantial factors appropriately considered in approximating drug
quantities for sentencing purposes.
We must determine whether the government presented sufficient
reliable information to permit the court reasonably to conclude that
appellants were responsible for a quantity of drugs at least equal to
the quantity threshold for the assigned base offense level. See
___
Sklar, 920 F.2d at 113. The base offense level assigned each appel-
_____
lant was 40, the level applicable to offenses involving between ten
and thirty kilograms of unadulterated methamphetamine. A DEA chemist
testified at trial that fifty kilograms of pseudoephedrine would yield
twenty-nine kilograms of methamphetamine.6 Utilizing the same ratio
____________________
6Jordan points out that the court did not state that it was
relying on the DEA chemist's testimony, that the drug quantity approx-
imation in the PSR is not attributed to the chemist, and that Jordan
had no opportunity to cross-examine the chemist, who testified after
13
one unit of pseudoephedrine per a .58 unit of methamphetamine
the twenty-three kilograms of pseudoephedrine seized in the fifty-
kilogram drum would yield approximately thirteen kilograms of metham-
phetamine, a quantity sufficient to warrant the base offense level of
40.
The DEA chemist further testified that the ephedrine reduction
process requires hydriodic acid in quantities from one to four times
the amount of pseudoephedrine, depending upon the particular "recipe."
Although the evidence does not establish the exact amount of hydriodic
acid the defendants possessed, approximately ten liters were seized,
along with an unspecified quantity found in a seventy-pound container
at the warehouse. In addition, an empty seventy-pound hydriodic acid
container was found at the trailer.
Furthermore, Jordan admitted to Agent Kelly that he and the
"chemist" had all the necessary ingredients, with the exception of the
hydriodic acid being procured from Kelly, with which to manufacture
forty pounds (eighteen kilograms) of methamphetamine immediately. The
court also had before it the Fitzgerald chemical list, reflecting
chemical quantities sufficient to produce at least twenty-nine kilo-
____________________
Jordan had entered his guilty plea.
"A sentencing hearing need not meet all the procedural safeguards
and strict evidentiary limitations of a criminal trial." Zuleta-
_______
Alvarez, 922 F.2d at 36. The sentencing court may rely on extrinsic
_______
evidence which was not subjected to cross-examination, so long as
there are "'sufficient indicia of reliability to support its probable
accuracy.'" Id. at 36 (quoting U.S.S.G. 6A1.3). Jordan failed to
__
present any evidence at sentencing to refute the drug-quantity approx-
imation in the PSR. We discern no clear error in the sentencing
court's reliance on the DEA chemist's trial testimony.
14
grams of methamphetamine. Some quantity of each chemical on the list
was seized either from the trailer or the warehouse and in the size
container specified on the list.7 Appellants' PSRs also contain the
uncontroverted statements that Barnett produced approximately eight
pounds of methamphetamine in December 1989 and that Jordan participat-
ed in its distribution. Neither appellant presented countervailing
drug-quantity or chemical-quantity evidence at sentencing.
We discern no clear error. The district court had before it
sufficient reliable information to support a finding that Barnett and
Jordan were actually responsible for not less than ten kilograms of
___ ____
methamphetamine, warranting a base offense level of 40.
2. Drug Purity
2. Drug Purity
___________
An explanatory note appended to the Drug Quantity Table distin-
____________________
7The Fitzgerald chemical list reads as follows:
d-pseudoephedrine Hcl.
50 kilo drum
Hydriodic Acid
4 - 70 lb drum
Red Phosphorus
15 lb
R-IIFreon
7 - 100 lb drums
Methyl Alchohol [sic]
(methanol)
5 - 5 gal drums
Acetone
7 - 5 gal drums
Among the seized chemicals were a partially filled fifty-kilogram drum
of pseudoephedrine, one empty and one partially filled seventy-pound
hydriodic acid drum, several one-pound bottles of red phosphorus, a
100-pound drum of freon, several five-gallon containers of methanol,
and two five-gallon acetone containers.
15
guishes between the terms "methamphetamine (actual)" and "metham-
phetamine":
Unless otherwise specified, the weight of a controlled sub-
stance set forth in the table refers to the entire weight of
any mixture or substance containing a detectable amount of
the controlled substance . . . . The term[] . . . "[m]etham-
phetamine (actual)" refer[s] to the weight of the controlled
substance, itself, contained in the mixture or substance.
U.S.S.G. 2D1.1(c). The table prescribes a base offense level of 40
for offenses involving between ten and thirty kilograms of "metham-
phetamine (actual)," whereas the same quantity of adulterated "metham-
phetamine" carries a base offense level of 36. Now, for the first
time, Jordan argues that the record does not establish the purity of
the methamphetamine for which he was held responsible, and that his
base offense level should have been computed under the Drug Quantity
Table entry for adulterated "methamphetamine" rather than "methamphet-
amine (actual)."
Issues not squarely raised in the district court will not be
entertained on appeal. See United States v. Haggert, 980 F.2d 8, 10-
___ ______________ _______
11 (1st Cir. 1992) (collecting cases). Although defense counsel
consistently referred to base offense levels corresponding to
adulterated "methamphetamine" rather than "methamphetamine (actual),"
both at sentencing and in opposition to the PSR, at no time did he
expressly raise drug purity as an issue in the district court.
"Judges are not expected to be mindreaders. Consequently, a litigant
has an obligation to spell out [his] arguments squarely and distinct-
ly, or else forever hold [his] peace." United States v. Zannino, 895
_____________ _______
16
F.2d 1, 17 (1st Cir.) (internal citations and quotation marks omit-
ted), cert. denied, 494 U.S. 1082 (1990). The drug-purity claim must
_____ ______
be deemed waived, as it was never raised below.8
B. Suppression Issues
B. Suppression Issues
__________________
1. The Consensual Search
1. The Consensual Search
_____________________
Barnett filed a pretrial motion to suppress certain physical
evidence and admissions, on the ground that he did not voluntarily
consent to the warrantless search of his residence. The district
court disagreed. We review for clear error. United States v. Wilkin-
_____________ _______
son, 926 F.2d 22, 24 (1st Cir.), cert. denied, ___, U.S. ___, 111 S.
___ _____ ______
Ct. 2813 (1991); United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir.
_____________ ______
1989), cert. denied, 496 U.S. 908 (1990). A warrantless residential
_____ ______
search violates the Fourth Amendment unless it comes within one of the
"'few specifically established and well-delineated exceptions[,]'"
____________________
8The raise-or-waive rule will be relaxed only in exceptional
cases involving a gross miscarriage of justice where the belated claim
is "'so compelling as virtually to insure appellant's success.'"
Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979)
________ ___________________
(quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974)); see
____ _____ ___
United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992); Haggert, 980
_____________ _____ _______
F.2d at 10-11; Hernandez-Hernandez v. United States, 904 F.2d 758, 763
___________________ _____________
(1st Cir. 1990). This narrow exception is unavailing in the present
case.
The sentencing court had before it evidence that Barnett per-
formed extra manufacturing steps to assure maximum purity, that Jordan
promised to deliver "uncut" methamphetamine to Agent Kelly, that
Barnett boasted to Agent Boeri that his methamphetamine had been
analyzed "ninety-nine and one hundred percent" pure, and that the
methamphetamine seized at the trailer was between ninety and one
hundred percent pure. Absent any evidence that the methamphetamine
was diluted or adulterated in any manner, the sentencing court was
presented with insufficient evidence to sustain Jordan's present drug-
purity claim.
17
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v.
___________ __________ ____
United States, 389 U.S. 347, 357 (1967)), which include consensual
_____________
searches, id. at 219, 228. The voluntariness of a consent to search
___
turns on an assessment of the totality of the circumstances. United
______
States v. Mendenhall, 446 U.S. 544, 557 (1980); Schneckloth, 412 U.S.
______ __________ ___________
at 227. Among the individualized factors bearing on the vulnerability
of the consenting party are age, education, experience, intelligence,
and knowledge of the right to withhold consent. More general consid-
erations include whether the consenting party was advised of his or
her constitutional rights and whether permission to search was ob-
tained by coercive means or under inherently coercive circumstances.
Id. at 226; Twomey, 884 F.2d at 51. Although sensitivity to the
___ ______
heightened possibility of coercion is appropriate when a defendant's
consent is obtained during custody, see Schneckloth, 412 U.S. at 240,
___ ___________
n.29, "custody alone has never been enough in itself to demonstrate
. . . coerced . . . consent to search." United States v. Watson, 423
_____________ ______
U.S. 411, 424 (1976).
Barnett argues that his consent was coerced, in that he was met
at the door of his home by seven or eight law enforcement officers,
with guns drawn. Immediately after he was arrested and handcuffed,
the officers holstered their weapons and advised Barnett of his
Miranda rights. Barnett was then asked if he would consent to a
_______
18
search of the premises.9 Barnett claims that he was never informed
that he could withhold his consent, he was given no consent form, and
he was led to believe that the officers already had a search warrant
because they began searching the premises immediately upon entering,
prior to requesting consent.
Written consent is not essential to the establishment of a valid
consensual search. See, e.g., United States v. Chaidez, 906 F.2d 377,
___ ____ _____________ _______
382 (8th Cir. 1990) (search may be justified by voluntary oral consent
even in the absence of valid written consent); United States v.
______________
Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988) (defendant's refusal to
________
sign a consent form does not preclude a finding of voluntariness).
Moreover, it is not essential that the officers first inform the
consenting party of the right to withhold consent, though knowledge of
the right to withhold consent is a factor to be considered in assess-
ing voluntariness, Schneckloth, 412 U.S. at 227; see also Florida v.
___________ ___ ____ _______
Rodriguez, 469 U.S. 1, 6-7 (1984).
_________
Although Barnett testified that agents began "searching, looking
under things," and "opening drawers and cabinets," Lemon testified
____________________
9Barnett testified that, following his arrest, he was told by
Agent Lemon: "Mike, we are just going to look around and take you
down to the Marshfield Police Station, okay?" Barnett replied,
"Okay." Barnett contends that he was merely acknowledging his arrest
and inevitable booking, not consenting to a search of his residence.
Based on Agent Lemon's testimony, however, the court found that
Barnett was asked: "Mind if I look around the house?" and responded,
"Go ahead. You'd probably get a search warrant anyway." The district
court was presented with a pure credibility determination. We find no
clear error in its determination that Lemon's version of the events
was more credible.
19
that a protective sweep was conducted immediately upon entering the
__________ _____
premises to ensure that no one else was present.10 Thereafter, ac-
cording to Lemon, the agents "just [stood] around" until Barnett
consented to a further search. We find no clear error in the trial
court's credibility-based ruling that "a sweep search was conducted."
Barnett's contention that the search conducted immediately upon
entry led him to believe that the agents already had a search warrant
cannot succeed in any event. The district court expressly found that
Barnett responded as follows to Lemon's request for consent to search:
"Go ahead. You'd probably get a search warrant anyway[]" (emphasis
______ _______ ______
added), plainly implying Barnett's understanding that the agents had
no search warrant and needed his consent.
Notwithstanding the inherently unnerving effect of having numer-
ous officers arrive at one's door with guns drawn, Barnett was no
"newcomer" to law-enforcement encounters. See United States v.
___ ______________
Kimball, 741 F.2d 471, 474 (1st Cir. 1984). Barnett had been convict-
_______
ed of at least eighteen prior offenses and arrested on at least eight
previous occasions. Thus, we may fairly presume that he was "less
likely than most to be intimidated by the agents' show of force."
United States v. Cepulonis, 530 F.2d 238, 244 (1st Cir. 1976), cert.
_____________ _________ _____
____________________
10A sweep search is "narrowly confined to a cursory visual
inspection of those places in which a person might be hiding," Mary-
_____
land v. Buie, 494 U.S. 325, 327 (1990). The officers are permitted to
____ ____
take reasonable steps to ensure their safety, and may, "without
probable cause or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of arrest from which an attack
could be immediately launched." Id.
___
20
denied, 426 U.S. 908 (1976), and cert. denied, 426 U.S. 922 (1976).
______ _____ ______
In addition, before he was asked to consent to the search, all guns
had been holstered and Barnett was advised of his Miranda rights,
_______
"'put[ting] him on notice that he [could] refuse to cooperate,'" id.
___
(quoting Gorman v. United States, 380 F.2d 158, 164 (1st Cir. 1967)).
______ _____________
Finally, there was no evidence of overt or covert threats or pressure
to exact Barnett's consent.
In these circumstances, we conclude that Barnett's will was not
overborne, nor his "capacity for self-determination critically im-
paired." Schneckloth, 412 U.S. at 225. Ultimately, as we are not
___________
"'left with the definite and firm conviction that a mistake has been
committed,'" Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)
________ ______________
(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395
_____________ ________________________
(1948)), we find no clear error in the trial court's determination
that Barnett's consent was voluntary.
2. The Lemon Affidavit
2. The Lemon Affidavit
___________________
Next, Barnett claims that the district court erred in refusing to
suppress evidence obtained as a result of alleged false statements in
the affidavit supporting the search warrant application. Barnett
contends that the erroneous heat-imaging test data in the Lemon
affidavit was materially false or included with reckless disregard for
its truth. Without it, says Barnett, the Lemon affidavit was insuffi-
cient to establish probable cause to search the trailer.
The district court conducted an evidentiary hearing pursuant to
21
Franks v. Delaware, 438 U.S. 154 (1978). Franks findings are reviewed
______ ________ ______
for clear error. United States v. Cole, 807 F.2d 262, 268 (1st Cir.
______ ______ ____
1986), cert. denied, 481 U.S. 1069 (1987). The questions for us are
_____ ______
(1) whether Barnett established by a preponderance of the evidence at
the Franks hearing that the affidavit was perjurious, or prepared with
______
reckless disregard for its truth, and (2) whether the affidavit,
___
without the false material, was insufficient to establish probable
cause for the search. If so, the warrant was void and the fruits of
the search must be suppressed. Franks, 438 U.S. at 155-56.
______
Barnett claims that the heat-imaging data Trooper Welby provided
to Lemon, see supra at pp. 5-6, was either deliberately or recklessly
___ _____
false, because Welby failed to inform Lemon that he lacked training
and experience in operating the device and failed to examine the
device prior to the May 30 flyover to determine which polarity mode
was operative.
The district court finding that Welby did not act in bad faith
was not clearly erroneous. There is no evidence that Welby intention-
ally misinterpreted the data from the infrared equipment. Rather, the
evidence strongly suggests, just as the court found, that Welby
sincerely believed, albeit mistakenly, that the equipment was in the
"white-hot" polarity mode during the fly-over.
Neither is there evidence that Lemon knew that the heat-imaging
data was incorrect. Nevertheless, Barnett argues that Lemon's failure
to make note, in the affidavit, that Welby had little experience with
the heat-imaging equipment was a material omission made intentionally
22
or with reckless disregard for the truth. Although the district court
made no direct finding on this issue, we need not pursue the matter as
the affidavit would have been sufficient without the challenged data.
"[I]f an affiant knowingly includes a false statement in a
warrant affidavit, the warrant will stand if, 'when material
that is the subject of the alleged falsity or reckless disre-
gard is set to one side, there remains sufficient content in
the warrant affidavit to support a finding of probable
cause.'"
United States v. Veillette, 778 F.2d 899, 904 (1st Cir. 1985), cert.
_____________ _________ _____
denied, 476 U.S. 1115 (1986) (quoting Franks, 438 U.S. at 171-72).
______ ______
The Fourth Amendment warrant requirement is met if the magistrate
had a "'substantial basis for . . . conclud[ing]' that a search would
uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236
________ _____
(1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
_____ ______________
Without regard to the incorrect heat-imaging data, the Lemon affidavit
established probable cause to search the trailer.11 The suppression
____________________
11We summarize some of the more salient information in the affi-
davit:
(1) In March 1990, a cooperating individual informed Lemon that
Barry Jordan and a man known as "Barney" were manufacturing metham-
phetamine in the South Shore area, possibly in Scituate. According to
the informant, Jordan and "Barney" manufactured ten pounds of metham-
phetamine in November or December of 1989.
(2) Jordan told DEA undercover agent Kelly that he and his
chemist had 160 pounds of chemicals, and needed only hydriodic acid to
manufacture forty pounds of methamphetamine. Kelly supplied the
hydriodic acid in exchange for Jordan's promise to give Kelly four
ounces of methamphetamine.
(3) Clandestine methamphetamine labs typically have air vents or
ducts to dissipate toxic fumes; photographs of the trailer revealed a
"black bordered area" which Lemon, based on his experience, believed
23
ruling was not clearly erroneous.
C. Severance
C. Severance
_________
Next, Barnett claims that denial of his severance motion violated
his Sixth Amendment right to confrontation, as a consequence of the
prejudice occasioned by the admission in evidence, at the joint trial,
of codefendant Fitzgerald's post-arrest statements, see Bruton v.
___ ______
United States, 391 U.S. 123 (1968), and that he was further prejudiced
_____________
by the testimony of Fitzgerald's spouse, Sheryl.
At trial, Agent Lemon testified as follows:
I advised Mr. Fitzgerald that we had done a search on the
trailer in his backyard. I advised Mr. Fitzgerald that we
had found a speed lab, a methamphetamine lab. I told him
that I believed another person was the chemist, and I also
told Mr. Fitzgerald that I believed he knew who the other
person was and that this other person was a chemist . . . .
He told me he knew who this other person was, but that he did
not know that this person was involved with a clandestine
laboratory. He stated that he knew him or this other person
socially and that he would go out on occasion and have a few
drinks with this other person. . . . Mr. Fitzgerald told me
that he rented the trailer out to this other person and that
it was used for construction. . . . Mr. Fitzgerald told me
that he . . . did not know what was going on out in the
____________________
to be a trapdoor or venting area for a clandestine laboratory inside
the trailer.
(4) The pattern of electricity consumption suggested the pres-
ence of a clandestine lab. The electricity bills showed a dramatic
increase in December 1989, the time period during which Jordan and
"Barney" manufactured ten pounds of methamphetamine.
(5) During a DEA flyover on May 26, 1990, a DEA agent first
observed a power cord running between the trailer and the main house.
During a May 28 flyover, two Massachusetts State Troopers observed the
same cord.
(6) A DEA agent observed Barnett mixing and straining a "yellow,
slushy mixture" at the trailer on May 30.
(7) The trailer was located in a remote, wooded location, an
ideal site for a clandestine laboratory.
24
Barnett objected and moved to strike on Bruton grounds.12 The court
______
trailer, and I then asked Mr. Fitzgerald how he could explain
what Mr. Fitzgerald told me was that he was in the trailer,
the hydrio[d]ic acid label that was found in his coat, and
he saw the bottles of hydrio[d]ic acid, and that he removed
one of the labels because he wanted to find out what it was.
Lemon's testimony relating his own extrajudicial statements to Fitz-
25
13Although Barnett moved to strike the "entire conversation," he
did so on Bruton grounds only. No separate objection was made to
______
given.
against Fitzgerald. No limiting instruction was requested, offered or
Fitzgerald about "the chemist," no Bruton problem was presented and no
______
the Lemon testimony related the extrajudicial statements Lemon made to
_____
There was no confrontation clause violation. First, insofar as
12At sidebar, the following exchange occurred:
____________________
hearsay objection was made.13 Even Fitzgerald's extrajudicial state-
____________
sustained the Barnett objection, but allowed the testimony to stand
T H E C O U R T :
MR. HORAN:I would still contend that all along [for Barnett]:
the statement was sanitized so to speak, but the implication
MR. KENDALL:He will. What the Government would [AUSA]
is still clear by the Government that the person who is being
confessing to anything" and was a mere "fact witness" is reversible
anything. He's a fact witness.
T H E C O U R T :
talked about here is Michael Barnett.
Let's assume it is. He [Fitzgerald] is not confessing to
nett, or, conversely, it is only to Fitzgerald.
Barnett contends that the court's comment that Fitzgerald "was not
agree to is the statement will not be admitted against Bar-
How is this based under the Bruton issue?
______
error. This argument is baseless.
ments to Lemon neither identified nor inculpated Barnett, but merely
related factual observations established by other independent evi-
dence. Second, assuming the jury did deduce, as seems likely, that
Lemon and Fitzgerald were referring to Barnett, Fitzgerald's state-
ments nonetheless did not entail the sort of "'powerfully incriminat-
ing' effect of one accomplice pointing the finger directly at another,
without subjecting himself to cross-examination." United States v.
______________
DiGregorio, 605 F.2d 1184, 1190 (1st Cir.), cert. denied, 444 U.S. 937
__________ ____ ______
(1979), and cert. denied, 444 U.S. 944 (1979), and cert. denied, 444
____ ______ ____ ______
U.S. 983 (1979) (quoting Bruton, 391 U.S. at 135). See also United
______ ___ ____ ______
States v. Greenleaf, 692 F.2d 182, 188-89 (1st Cir. 1982), cert.
______ _________ ____
denied, 460 U.S. 1069 (1983) (finding no Bruton violation where
______ ______
codefendant's statement was not "powerfully incriminating."). Not
only did Fitzgerald not confess guilt, he in no manner admitted to
_______
knowledge of Barnett's guilt. Thus, Fitzgerald's admissions to Lemon
_________
inculpated neither Barnett nor Fitzgerald.14
____________________
gerald in the guise of reciting Lemon's investigative efforts.
14Whatever prejudice might otherwise have resulted from the joint
trial was minimized by precautions the district court took to forfend
against it. After the pretrial severance motion was denied, the
government stipulated that any testimony relating post-arrest state-
ments by Fitzgerald would not refer to Barnett by name and the dis-
trict court firmly admonished against "any mention of [Barnett]" in
connection with Fitzgerald's statements.
Barnett nevertheless maintains that the court committed revers-
ible error by failing to instruct the jury that Fitzgerald's extraju-
dicial statements were not admissible against Barnett, even though
Barnett did not request a limiting instruction, either at the time of
the ruling or at the time of the final jury charge, and even though he
did not object to the charge. The claim must be deemed waived, United
______
States v. Mateos-Sanchez, 864 F.2d 232, 238 (1st Cir. 1988); United
______ ______________ ______
26
Barnett submits that severance was warranted, nonetheless, to
avoid the cumulative prejudice from Fitzgerald's extrajudicial state-
ments and the testimony of Sheryl Fitzgerald.15 The severance
ruling is reviewable for abuse of discretion, reversible only if it
"'deprived defendant of a fair trial, resulting in a miscarriage of
justice.'" United States v. Tejeda, 974 F.2d 210, 219 (1st Cir. 1992)
_____________ ______
(quoting United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir.
_____________ __________
1992)); see also United States v. Martinez, 922 F.2d 914, 922 (1st
___ ____ _____________ ________
Cir. 1991) (severance is committed to the sound discretion of the
trial judge, reversible only on a showing of manifest abuse). While
incidental prejudice is sometimes unavoidable in a joint trial, only a
____________________
States v. Rawwad, 807 F.2d 294, 296 (1st Cir. 1986), cert. denied, 482
______ ______ ____ ______
U.S. 909 (1987), especially since it seems highly likely that the
trial court would have viewed it as a reasonable tactical decision for
defense counsel to refrain from requesting an instruction recalling
the jury's attention to Lemon's testimony. "We have been extremely
reluctant 'to increase the heavy burdens already imposed on trial
judges in criminal cases' by mandating that the district courts act
sua sponte to override seemingly plausible strategic choices on the
___ ______
part of counselled defendants." United States v. De La Cruz, 902 F.2d
_____________ __________
121, 124 (1st Cir. 1990) (quoting United States v. Reveron Martinez,
_____________ ________________
836 F.2d 684, 687 (1st Cir. 1988)). Furthermore, we are confident
that there was no plain error. The absence of a limiting instruction
did not "seriously affect the fundamental fairness and basic integrity
of the proceedings," United States v. Griffin, 818 F.2d 97, 100 (1st
_____________ _______
Cir.), cert. denied, 484 U.S. 844 (1987).
____ ______
15Barnett identifies two aspects of Sheryl Fitzgerald's testimony
as especially prejudicial: (1) that Barnett entered the Fitzgerald
house several times on May 30, leaving with clear plastic sandwich
bags in his possession on one occasion; and (2) that, after Barnett
left on the evening of May 30, she found a piece of paper bearing
handwriting different than her husband's, and gave it to her husband
to deliver to Barnett. Barnett does not mention, in this connection,
some of Sheryl Fitzgerald's other testimony. For example, she testi-
fied that she rented the trailer to Barnett.
27
strong showing of substantial prejudice will warrant reversal.
McLaughlin, 957 F.2d at 18.
__________
The "heavy burden" of demonstrating the unfair prejudice required
for reversal has not been met. See United States v. Perkins, 926 F.2d
___ _____________ _______
1271, 1280 (1st Cir. 1991). First, the record does not disclose that
this issue was preserved at trial, as Barnett neither objected to
Sheryl Fitzgerald's testimony, nor requested a limiting or cautionary
instruction. Second, Barnett identifies no basis for excluding her
testimony, either at a joint trial or a separate trial. Thus, al-
though her testimony inculpated Barnett, there was no unfair preju-
dice.
D. Criminal Rule 35
D. Criminal Rule 35
________________
Barnett appeals from the dismissal of his motion to correct
sentence pursuant to Fed. R. Crim. P. 35(a), which sought a downward
departure due to diminished mental capacity.16 The district court
____________________
16Barnett claims that he suffers from short-term memory loss.
Mental and emotional conditions generally are not grounds for downward
departure. U.S.S.G. 5H1.3. See United States v. Lauzon, 938 F.2d
___ _____________ ______
326, 333 (1st Cir.), cert. denied, ___ U.S. ___, 112 U.S. 450 (1991);
____ ______
United States v. Studley, 907 F.2d 254, 257 (1st Cir. 1990). Never-
_____________ _______
theless, a guideline policy statement provides as follows:
If the defendant committed a non-violent offense while suf-
fering from significantly reduced mental capacity not result-
ing from voluntary use of drugs or other intoxicants, a lower
sentence may be warranted to reflect the extent to which
reduced mental capacity contributed to the commission of the
offense, provided that the defendant's criminal history does
not indicate a need for incarceration to protect the public.
U.S.S.G. 5K2.13.
28
dismissed on the ground that it lacked the power to grant relief under
Rule 35(a).
Rule 35(a)17 expressly empowers a district court to correct a
sentence only on remand from the court of appeals. United States v.
_____________
Carr, 932 F.2d 67, 69 (1st Cir.), cert. denied, ___ U.S. ___, 112 S.
____ ____ ______
Ct. 112 (1991). Rule 35(c), which permits the sentencing court to
correct a sentence imposed as a result of arithmetical, technical, or
other clear error, was not in effect either when the Barnett motion
was filed or dismissed. Moreover, in this case we need not consider
whether the district court had the inherent power to correct obvious
_______
sentencing errors, see United States v. Rico, 902 F.2d 1065, 1067-68
__________ ______ ___ ______________ ____
(2d Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 352 (1990); United
_____ ______ ______
States v. Cook, 890 F.2d 672, 674-75 (4th Cir. 1989); see also Carr,
______ ____ ___ ____ ____
932 F.2d at 70-71, since there were none. As the sentence imposed on
Barnett was in no respect unlawful or unreasonable, the motion to
reconsider was properly dismissed.
____________________
17Federal Rule of Criminal Procedure 35(a) provides:
The court shall correct a sentence that is determined on
__
appeal under 18 U.S.C. 3742 to have been imposed in violation
______
of law, to have been imposed as a result of an incorrect
application of the sentencing guidelines, or to be un-
reasonable, upon remand of the case to the court
____ ______
(1) for imposition of a sentence in accord with the findings
of the court of appeals; or
(2) for further sentencing proceedings if, after such pro-
ceedings, the court determines that the original sentence was
incorrect.
Fed. R. Crim. P. 35(a) (emphasis added).
29
E. Outrageous Government Conduct
E. Outrageous Government Conduct
_____________________________
Barnett claims that the indictment should have been dismissed on
due process grounds, since Agent Kelly's sale of hydriodic acid to
Jordan constituted outrageous government conduct. Law enforcement
conduct violates the Due Process Clause of the Fifth Amendment if it
results in a denial of "'fundamental fairness, shocking to the univer-
sal sense of justice.'" United States v. Russell, 411 U.S. 423, 432
_____________ _______
(1973) (quoting Kinsella v. United States ex rel. Singleton, 361 U.S.
________ _______________________________
234, 246 (1960)). See also United States v. Panitz, 907 F.2d 1267,
___ ____ _____________ ______
1272 (1st Cir. 1990) ("The Supreme Court has not foreclosed the pos-
sibility that the government's active participation in a criminal
venture may be of so shocking a nature as to violate a defendant's
right to due process, notwithstanding the defendant's predisposition
to commit the crime"). We find no due process violation.
Because drug conspiracies are notoriously difficult to penetrate,
courts consistently have allowed greater government involvement in
drug-crime investigations. Panitz, 907 F.2d at 1273. Law enforcement
______
infiltration of drug rings, and even limited investigative participa-
tion in their unlawful operations, do not constitute outrageous
government conduct violative of due process. Russell, 411 U.S. at
_______
432.
Although Agent Kelly sold Jordan a precursor chemical which is an
integral methamphetamine component, the government was neither the
conspirators' sole source (hydriodic acid obtained from other sources
was seized in the warehouse search), nor did the government initiate
30
the criminal conduct. Jordan told Agent Kelly that Barnett had been
producing methamphetamine for ten years. Other evidence revealed that
Jordan and Barnett had manufactured eight to ten pounds of metham-
phetamine in 1989. The sale of hydriodic acid to Jordan in these
circumstances was a permissible investigative effort to infiltrate the
suspected drug-related conspiracy. The district court properly denied
the motion to dismiss on due process grounds.
F. Cumulative Error
F. Cumulative Error
________________
Finally, as most assignments of error were baseless, we reject
Barnett's contention that the cumulative effect of the many errors he
alleges required reversal on due process grounds. We are well satis-
fied that Barnett received due process: "[T]he Constitution entitles
a criminal defendant to a fair trial, not a perfect one." Delaware v.
________
Van Arsdall, 475 U.S. 673, 681 (1986).
___________
The sentence of appellant Jordan and the conviction and sentence
__________________________________________________________________
of appellant Barnett are affirmed.
_________________________________
31