248 F.3d 11 (1st Cir. 2001)
UNITED STATES OF AMERICA, Appellee,v.SAMUEL PATRICK AND JASON ARTHUR,  Defendants, Appellants.
Nos. 99-1387, 99-1388
United States Court of Appeals For the First Circuit
Heard March 29, 2001Decided May 3, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
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.
Before  Boudin, Lynch, and Lipez, Circuit Judges.
LYNCH, Circuit Judge.


1
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.


2
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.

3
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  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.

4
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,  "pumped"2 (or sold) drugs for the older members, although some younger  members also operated on their own.


5
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.


6
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.


7
In December 1992, Courtney Thomas, a non-IVP member, was  selling drugs on IVP territory without permission.  When an IVP member  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.


8
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  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.

9
A. RICO Enterprise: Instructions and Sufficiency


10
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.


11
The district court charged the jury that under RICO the term  "enterprise":


12
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  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.


13
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.


14
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.


15
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  "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  operations of other supervisors to provide greater profits and fewer  conflicts").


16
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  "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.


17
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  were made, including decisions about taking action against rival drug  dealers.


18
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.").


19
B.  Sufficiency of the Evidence of Conspiracy


20
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  enough to show he was a conspirator.  For these purposes, we focus on  the predicate acts of murder and drug dealing.


21
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.


22
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.


23
Patrick raises the same argument in a summary fashion in his  brief, and we reject it for the same reasons.

C.  Evidentiary Rulings

24
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

25
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.


26
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.


27
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


28
2.  Exclusion of Handwritten Notes of Informant Tips


29
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.


30
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)  (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  not otherwise subject to objection.") (internal footnotes omitted)  (emphasis added).


31
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.


32
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,  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").


33
Here, the defense theory is that someone else committed the  murder, that this is shown by the fact that other names were given to  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.


34
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  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.


35
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  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.


36
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.


37
There was no abuse of discretion in excluding the note.  Rule  804(b)(3) provides that a statement "tending to exposethe 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  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.


38
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  contrast to Chambers, was outside the basic rationale of the exception  for declarations against penal interest.  There was no error.


39
3.  Exclusion of Portions of Search Warrant Affidavit


40
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.


41
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  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

42
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  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

43
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).


44
Patrick's brief fails to describe fully the nature of the  problem or why he was prejudiced by learning the information at trial  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.


45
E.  Post-Trial Motion for Investigative Funds


46
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  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

47
Defendants also challenge their sentences on various grounds.


48
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.


49
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.


50
Patrick and Arthur also each make claims based on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).


51
We discuss these arguments in turn and affirm the sentences.


52
1. Denial of Motion for Funds to Conduct Independent Weighing


53
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  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

54
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 decision making 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").


55
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. 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.


56
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  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

57
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

58
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  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.


59
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  racketeering and racketeering conspiracy was life imprisonment. See 18 U.S.C. § 1963.

IV.

60
Defendants' convictions and sentences are affirmed.


61
So ordered.



Notes:


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.


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


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).


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).


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.


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.


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


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


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.


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.


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.


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.


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


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


