
USCA1 Opinion

	




          July 1, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2196                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JOSEPH ARGENCOURT,                                   a/k/a JOE BLACK,                                Defendant, Appellant.                                _____________________        No. 92-2197                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RODNEY J. ANDREONI,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this Court issued on June  23, 1993, is amended  as        follows:            On page 9, line 3:  change "elicted" to "elicited"            On page 12, n. 6, line 5:  change "coversation" to "conversation"            One page 16, line  3:  insert "provide" after "to" and replace the        comma after "of" to follow "providing"                                     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  ____________________        No. 92-2196                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JOSEPH ARGENCOURT,                                   a/k/a JOE BLACK,                                Defendant, Appellant.                                _____________________        No. 92-2197                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RODNEY J. ANDREONI,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                      Coffin and Oakes,* Senior Circuit Judges.                                         _____________________                                 ____________________                                    ____________________        *Of the Second Circuit, sitting by designation.            Edward  C.  Roy  with whom  H.  Robert Beecher  was  on brief  for            _______________             __________________        appellant Joseph Argencourt.            James A. Ruggiero for appellant Rodney J. Andreoni.            _________________            Margaret E.  Curran, Assistant U.S. Attorney,  with whom James  H.            ___________________                                      _________        Leavey, Assistant U.S. Attorney, and Lincoln C.  Almond, United States        ______                               __________________        Attorney, were on brief for appellee.                                 ____________________                                    June 23, 1993                                 ____________________               COFFIN, Senior  Circuit Judge.   Defendants  Rodney Andreoni                       _____________________          and  Joseph Argencourt  were  charged in  a two-count  indictment          alleging  their  involvement in  a  cocaine  distribution scheme.          Both men were convicted on Count 1, which charged a conspiracy to          distribute more than  500 grams  of cocaine.   Only Andreoni  was          convicted  on Count 2, which charged an attempt to distribute the          same  quantity of  the  drug.   Each  appeals his  conviction  on          various grounds.  We affirm.                                         I.                We shall begin with a brief description of the facts, as the          jury  could have found them, adding more detail in later sections          as necessary to explain our conclusions.               The events underlying  this case began  in early 1991,  when          the Federal Bureau of Investigation (FBI) initiated an undercover          operation  to   probe  insurance   fraud  in  Rhode   Island  and          Massachusetts.    Andreoni  was   one  of  the  targets   of  the          investigation.   An undercover FBI agent, Gary Brotan, and an FBI          informant, Mark Vermyea, met  some 60 times with Andreoni  over a          period  of   approximately  one  year.    During   one  of  their          discussions, Brotan raised  the topic of cocaine.   Andreoni said          that he could provide substantial quantities of the drug.               In  the course  of  several  recorded conversations  between          March 28, 1991, and August 5, 1991, Andreoni described one of his          sources as an individual from Pawtucket, Rhode Island, named "Joe          Black,"  which is an  alias used  by Argencourt.   On  August 26,          Andreoni,  Argencourt, Brotan and Vermyea attended a meeting at a                                         -4-          restaurant in  Seekonk, Massachusetts.   The  conversation, which          was recorded,  began with introductions, followed  immediately by          Andreoni's  statement to  Argencourt, "Tell  him what  the .  . .          prices  are  right now."    Argencourt  responded without  pause,          "Twenty eight."   Supp. App. at  33.  It is  undisputed that this          price referred to a kilogram of cocaine.               The discussion  at the meeting also  touched on Argencourt's          cautious approach to  drug dealing.  Argencourt reported  that he          previously had left  drug trafficking "because of  all the heat."          Supp.  App. at  36.   He  said that  he  had been  set  up by  an          informant who was  wearing a wire, and  he had not insisted  that          Brotan and  Vermyea be checked  for wires  only because  Andreoni          said they  could be trusted.   Id. at 36-38.   Argencourt said he                                         ___          would kill  anyone who "cops out"  on him, and noted  that he had          shot the informant who had worn the wire.  Id. at 38.                                                     ___               The four men discussed the proposed cocaine transaction, and          eventually the deal was  set for the upcoming Friday,  August 30.          Id.  at 53-55.  Although no location was specified then, Andreoni          ___          and Argencourt arranged in  a phone conversation Thursday evening          to meet at 9:30 a.m.  on Taunton Avenue in East Providence.   Id.                                                                        ___          at 65.   Brotan, Vermyea and Andreoni  met Friday morning  at the          designated time and place, but Argencourt never appeared.  An FBI          agent  conducting surveillance reported  seeing Argencourt's car,          however, near the appointed  location, at about 10 a.m.  Tr. Vol.          I at  104-06.  The agent,  who identified the car  by its license          plate number, did  not get a look  at the driver.   A few minutes                                         -5-          later, the agent saw the car parked a short distance away, but he          was unable to see if anyone was inside.               After the other three  had waited for a while,  Andreoni, at          the urging of Brotan  and Vermyea, telephoned Argencourt's office          to find out why he  was late.  Andreoni first reported  back that          he  had  spoken  to Argencourt's  secretary,  who  told  him that          Argencourt  had not returned from a 9:30 appointment.  Supp. App.          at 71.   After continuing to  wait a substantial period  of time,          the three men called off the deal and left.               Andreoni, Brotan and  Vermyea met again  on September 9,  at          which  time  Andreoni suggested  an  alternative  way of  getting          cocaine.   Id. at  82-83.  Another  meeting was  held October  8.                     ___          Andreoni  told  the government  agents  that no  one  was selling          cocaine because  they  were nervous.    Id. at  84-86.   He  also                                                  ___          reported that Argencourt would not return his phone calls.               The two defendants were  arrested in early 1992  and charged          with  conspiring to distribute  the one kilogram  of cocaine that          had  been the  focus  of  the August  26  meeting and  August  30          rendezvous.  No cocaine ever was seized.                                         II.                Both defendants claim that  the evidence was insufficient to          support  their  conspiracy  convictions.   They  claim  that  the          conversation during the August 26 meeting, although  focused on a          possible cocaine deal, was  vague and noncommittal and failed  to          demonstrate  the  intent  necessary   to  form  an  agreement  to          distribute the charged amount  of cocaine.  See United  States v.                                                      ___ ______________                                         -6-          O'Campo, 973 F.2d 1015, 1019 (1st Cir. 1992) (describing elements          _______          of conspiracy).               The  well-established  standard  for evaluating  sufficiency          claims requires us to  review the evidence as a  whole, including          all reasonable inferences from that  evidence, in the light  most          favorable to the government.  See, e.g., United States v. Tejeda,                                        ___  ____  _____________    ______          974 F.2d 210, 212 (1st Cir. 1992).  If, in so doing, we find that          a rational trier  of fact  could find guilt  beyond a  reasonable          doubt, we have  no option but to affirm the  jury's verdict.  Id.                                                                        ___          We may not weigh the evidence, and all credibility questions must          be resolved in favor of the verdict.  United States v. Ortiz, 966                                                _____________    _____          F.2d 707, 711 (1st Cir. 1992).               While we recognize  that this  case is unusual  in that  the          government  recovered no  cocaine from  these defendants  nor any          other  physical evidence  of drug  dealing, we believe  the tape-          recorded  conversations and other circumstances were sufficiently          telling  to support the jury's determination.  Beginning in March          1991,  Andreoni repeatedly  assured  Brotan and  Vermyea that  he          could arrange  to purchase  cocaine  for them,  and he  mentioned          Argencourt as one of two possible suppliers.  Argencourt appeared          at the August 26 meeting with Andreoni, and,  without hesitation,          stated the price for a kilogram of cocaine.  A  jury easily could          find  that  the  defendants  came  to  the meeting  intending  to          consummate a deal with the two government agents.               The fact that the final details -- the  time and location of          the  transaction -- were not set until after the meeting does not                                         -7-          undermine  the jury's  conclusion that  a conspiracy  was formed.          See, e.g., United States v. Iennaco, 893 F.2d 394, 398 (D.C. Cir.          ___  ____  _____________    _______          1990)  ("There  need not  be a  specific  agreement as  to price,          quantity,  and time, place and manner of delivery.")  Indeed, the          evidence permitted the jury to find that  Andreoni and Argencourt          consulted and agreed upon those details during a conversation the          evening before the scheduled August  30 deal.  See Supp.  App. at                                                         ___          65,  72.   The jury  also reasonably  could have  found that  the          admittedly  cautious  Argencourt  arrived  at the  scene  of  the          planned transaction  at the  designated time but  decided against          making the delivery because he detected something amiss.                 This  case  is  unlike  Iennaco, heavily  relied  upon  by                                         _______          Argencourt,  where  the court  reversed  a conspiracy  conviction          because  it  found  only  "various  unaccepted  offers  and  much          tentative  talk," 893 F.2d at 398.  The defendants here discussed          with the  interested purchasers a specific  one-kilogram, $28,000          cocaine  deal that  was  to  take  place  on  a  particular  day.          Subsequent actions and statements by the two defendants confirmed          -- or so the jury could have found -- that deal.  We consequently          find no basis for disturbing the jury's verdict on the conspiracy          count.1                                        III.                                         ____________________          1 For the same reasons, we  affirm the district court's denial of          Argencourt's  motion  for  new  trial.    See  United  States  v.                                                    ___  ______________          Rothrock, 806  F.2d 318, 321-22  (1st Cir. 1986)  (disposition of          ________          new  trial motion  will not  be disturbed  on appeal  "unless the          court abused its discretion or misapplied the law").                                         -8-               Andreoni  also challenges  the sufficiency  of the  evidence          supporting his  conviction on Count  2 for attempt  to distribute          cocaine.  To prove attempt, the government must establish both an          intent to commit the substantive offense and a "`substantial step          towards its  commission,'" United States v.  Chapdelaine, No. 92-                                     _____________     ___________          1358, slip  op. at 10  (1st Cir. March 25,  1993) (quoting United                                                                     ______          States v. Figueroa, 976 F.2d  1446, 1459 (1st Cir. 1992)).   This          ______    ________          step must be "`more  than mere preparation'" but "`less  than the          last  act   necessary  before   the  actual  commission   of  the          substantive crime,'" Chapdelaine, slip  op. at 10 (quoting United                               ___________                           ______          States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980)).          ______    ______               The evidence  described in the  preceding section adequately          establishes  Andreoni's intent  to commit the  substantive crime.          We think it beyond debate that he also engaged in the substantial          step necessary  to corroborate his  intent.  After  arranging the          meeting  at the restaurant on August 26, Andreoni nailed down the          details  of the transaction in a conversation with Argencourt and          communicated  the information  to Brotan  and Vermyea.   Andreoni          hooked up with the  two government agents at the  appointed time,          and waited  for a substantial  period with them  for Argencourt's          arrival.  He  called Argencourt's office in an effort to find out          about  the  delay.   The jury  reasonably  could have  found that          Andreoni  had taken the  transaction to the  brink of completion,          and  that it failed to  occur only because  of Argencourt's last-          minute  caution.    This certainly  was  enough  to establish  an          attempt.                                         -9-                                         IV.                Argencourt  challenges the  district court's  denial of  his          mid-trial  motion   for  severance,   which  was  based   on  the          introduction of  evidence of other crimes  committed by Andreoni.          The evidence at issue concerned Andreoni's solicitation of arson.          Andreoni's lawyer initially  elicited testimony about  arson from          Agent  Brotan in  an effort  to develop  the defense  theory that          Andreoni  had pretended to comply with Brotan and Vermyea's plans          because he feared  they would harm  or kill his family.   Through          his  cross-examination,  the lawyer  established that  Brotan and          Vermyea had portrayed themselves as dangerous individuals willing          to commit violent acts,  and that Vermyea had told  Andreoni that          burning buildings was his specialty.  Tr. Vol. I at 79, 89-90.                On redirect,  the prosecutor  asked Brotan about  the arson          discussions he  had had  with Andreoni.    Brotan testified  that          Andreoni  had suggested that Brotan and Vermyea might be hired to          burn both a Providence restaurant belonging to Andreoni's brother          and the house of an attorney whose wife had been awarded the home          in  a  divorce settlement.    According to  Brotan,  Andreoni had          indicated that it did not matter if the wife was in the  house at          the time it was burned.               Argencourt's severance motion was  premised entirely on this          arson testimony.  See Tr.  Vol. I at 162.2  The  court's decision                            ___          to deny the motion  is reversible only upon  a strong showing  of                                        ____________________          2 The trial also included testimony about other  criminal conduct          by Andreoni, see Section  V infra, but the severance  motion made                       ___            _____          reference only to the arson activity.                                         -10-          prejudice,  demonstrating a  manifest  abuse  of discretion  that          denied  the defendant a fair trial.   See United States v. Olivo-                                                ___ _____________    ______          Infante,  938 F.2d 1406, 1409  (1st Cir. 1991);  United States v.          _______                                          _____________          Boylan, 898 F.2d 230, 246 (1st Cir. 1990).          ______               Argencourt has not met this standard.  As an initial matter,          his attorney failed to  object to Brotan's testimony when  it was          given.  This fact was noted by the district court, see Tr. Vol. I                                                             ___          at 162,  and, in our view,  suggests that the evidence  had less-          than-monumental   significance  to   Argencourt's  case.     More          importantly, the  lawyer did cross-examine Brotan  at some length          for the purpose of establishing  that Argencourt was not involved          in Andreoni's other criminal activities, including arson, and the          agent's  testimony unequivocally  excluded Argencourt  from those          crimes.   See Tr. Vol. I at  101-02.  The record thus provides no                    ___          basis for a  finding of  prejudice.  Consquently,  we affirm  the          district court's denial of Argencourt's severance motion.                                          V.               Andreoni claims  that the  district court erred  by allowing          into evidence testimony concerning his efforts to obtain firearms          for Brotan and Vermyea.  We think it apparent that  the testimony          had  a reasonable connection with  issues in the  case and, given          its  relevance, the district court's weighing of the value of the          evidence  against its  prejudicial effect  fell within  the trial          judge's  discretion.  See United States v. Spinosa, 982 F.2d 620,                                ___ _____________    _______          628  (1st Cir.  1992) (admission  of prior  bad acts  evidence is          reviewed only for abuse of discretion).                                         -11-               It  is well  established that, under  Fed. R.  Evid. 404(b),          evidence  of prior  bad  acts  is  not  admissible  to  show  bad          character  or propensity to commit  a crime, but  may be admitted          when  it  has  some  "special,"  non-character based  relevance.3          United States  v.  Arias-Montoya, 967  F.2d  708, 709  (1st  Cir.          _____________      _____________          1992).  In this case, a primary defense theory was that Andreoni,          throughout  his relationship  with  the  government  agents,  was          merely puffing, making wild and unfounded promises that he had no          ability or intention  to fulfill.   Andreoni wanted  the jury  to          believe that the  proposed cocaine deal was no more than big talk          by an expert bragger.               Evidence that Andreoni did  follow through on obtaining guns          for  Brotan and Vermyea strikes at the  heart of this theory and,          consequently, had significant probative value for a purpose other          than showing criminal propensity.  See Figueroa, 976 F.2d at 1454                                             ___ ________          (other   acts  evidence   admissible   to   corroborate   matters          significant to the prosecution's  case).  Our caselaw establishes          that   such  evidence   is   admissible  unless   its  value   is          "substantially  outweighed"  by  the  risk  of  unfair prejudice,          confusion,  or waste of time.  See, e.g., Arias-Montoya, 967 F.2d                                         ___  ____  _____________          at  710; Fed.  R. Evid.  403.   No such imbalance  occurred here.          Although the evidence certainly was prejudicial, nothing about it                                        ____________________          3 Fed. R. Evid.  404(b) states that "[e]vidence of  other crimes,          wrongs, or  acts is not  admissible to  prove the character  of a          person in order to show action in conformity  therewith.  It may,          however,  be admissible  for  other purposes,  such  as proof  of          motive,  opportunity,  intent,   preparation,  plan,   knowledge,          identity, or absence of mistake or accident . . . ."                                         -12-          was  unfairly so.  See Spinosa, 982  F.2d at 628.  The jury knew,                             ___ _______          from  other testimony,  that  Andreoni was  involved in  criminal          activities  other than  the alleged  cocaine dealing.   Moreover,          when the firearms  evidence first was  elicited from Brotan,  the          district court gave a limiting instruction advising the jury that          it  was  admissible  "only for  the  purpose  of  disclosing what          relationships were  between the parties . . . ."   See Tr. Vol. I                                                             ___          at 99.4  We therefore reject this claim of error.5                                         VI.               During deliberations,  the jurors  asked to rehear  the tape          recording  of the conversation that took place on August 26 among          the defendants and the two government agents.   Argencourt argues          on appealthat thedistrict courterred inacceding to theirrequest.6                                        ____________________          4  The firearms  testimony was elicited  twice during  the trial,          first from  Brotan during redirect examination  by the prosecutor          and  later from Andreoni when  he testified as  a defense witness          for  Argencourt.    When  Brotan  testified,  Andreoni's  counsel          objected to the evidence  as irrelevant, and it was at  that time          that  the  district court  instructed  the  jury  of the  limited          appropriate use for the  evidence.  See Tr. Vol.  I at 99.   When                                              ___          the  testimony was  elicited a  second time,  from Andreoni,  the          attorney raised a specific 404(b) objection.   In overruling that          objection, the  trial judge noted Andreoni's defense  that he was          "play acting."   See Supp. App. at 114-15.   There was no request                           ___          for a limiting instruction at that time, and none was given.          5 In light of our disposition, we do not address the government's          suggestion that Andreoni's 404(b) objection was untimely.  Nor do          we  consider Andreoni's  cursory  reference  to the  government's          failure to give pretrial notice of its intent to use the firearms          evidence.    This  issue  was neither  raised  below  nor briefed          meaningfully on appeal.          6 The tape recording  for August 26 was introduced  into evidence          in  two parts.   One cassette contained  a recording  of the two-          minute interval  between the time  the recorder was  activated in          the  parking lot  of  the restaurant  and  the beginning  of  the          conversation inside the restaurant.  The other tape contained the                                         -13-               We  repeatedly  have held  that  the decision  to  reread or          replay  testimony during  jury deliberations  rests in  the sound          discretion  of the district court.  See United States v. Akitoye,                                              ___ _____________    _______          923 F.2d 221, 226 (1st Cir. 1991) (citing cases).  The factors to          be considered are "the reasonableness of the request, the ease or          difficulty  in compliance,  and what  is likely  to be  gained or          lost."  Id.                  ___               With  these  factors in  mind, there  is  no doubt  that the          district  court acted  well within  its discretion.   The  jury's          request was  specific and easy to accommodate.   The conversation          the  jury sought  to revisit  was the  most significant  piece of          evidence  presented  by  the  prosecution,  particularly  against          Argencourt, and providing the jury with a second chance to digest          it strikes us as  fully appropriate.  Indeed, the  jurors' desire          for a repetition is likely to reflect an appropriate concern that          the conversation be evaluated  as carefully as possible.   We see          no likelihood that the jury gave it undue emphasis.                                            VII.               Both  defendants  argue that  the  district  court erred  in          calculating  their  offense  levels  based  on  one  kilogram  of          cocaine.  Although  they do not dispute that one kilogram was the                                        ____________________          conversation.  Both  tapes had been played for  the jury, and the          court ordered that  both be  replayed in response  to the  jury's          request during deliberations.               Although his brief is unclear, we believe Argencourt intends          on  appeal to challenge the replaying of both tapes.  Regardless,          we see  no need to dwell  on this ambiguity or to  delve into the          issue  of waiver, raised by  the government, because  we think it          manifest that the court acted properly.  See infra.                                                   ___ _____                                         -14-          amount  negotiated,7  they  claim  that  there  was  insufficient          evidence  that they  were capable  of actually  producing such  a          large quantity  of the drug.   Under  the Sentencing  Guidelines,          they  assert,  the amount  of  drugs involved  in  an uncompleted          transaction may  be  considered only  if the  evidence shows  the          defendants intended  to produce,  and were reasonably  capable of          producing, that amount.  See U.S.S.G.   2D1.1, comment. (n.12).8                                   ___               This argument  has some  facial appeal because,  as Andreoni          argues, "during the entire transaction,  no drugs were seized, no          samples  were  given,  no  money  exchanged  for  drugs  and   no          distribution of drugs was made."   Brief at 27.  Andreoni  had no          history  of drug dealing and Argencourt  stated during the August          26 meeting that he had been out of the business for some time.               The claim  fails upon  closer scrutiny, however,  because it          is,  in essence, simply a  reiteration of the  sufficiency of the          evidence argument.  Although  the defendants claim that  the one-          kilogram  amount used by the district  court is too high, they do                                        ____________________          7  Andreoni explicitly  acknowledges that  one kilogram  was "the          negotiated amount of drugs,"  see Brief at 26.   Argencourt makes                                        ___          no argument that the government or court misunderstood the amount          being discussed in the tape-recorded conversations.           8 The note states, in pertinent part:               [W]here  the court  finds  that the  defendant did  not               intend  to produce  and was  not reasonably  capable of               producing   the  negotiated  amount,  the  court  shall               exclude from the guideline calculation  the amount that               it finds  the defendant did  not intend to  produce and               was not reasonably capable of producing.          Until  November  1992, when  the  Guidelines  were amended,  this          statement appeared in   2D1.4, comment. (n.1).                                         -15-          not say what amount  the district court properly could  have used          for  calculating  their  offense  levels.   In  our  view,  their          objection  is really to  the jury's finding of  guilt, and to the          court's endorsement of it through sentencing.               This is not to say  that a finding of guilt in  a conspiracy          case,  by   itself,  binds  a  court  to  the  amount  explicitly          negotiated  by  the  defendants.   A  jury's  supportable  guilty          verdict may establish that the defendants intended to produce the          quantity at issue,  which in turn is at least  some evidence of a          capacity  to  produce  it.    It  is  not,  however,  conclusive.          Application  note 12  permits the  court to  hold the  defendants          responsible for a lesser quantity, notwithstanding their specific          negotiations,  if the  court is  unpersuaded that  the defendants          actually intended and could have provided the full amount.               The application note does  not help defendants in this  case          because  the  evidence  suggests the  capacity,  as  well as  the          intent,  to sell one kilogram of cocaine.  The taped negotiations          demonstrated the  defendants' knowledge about the  drug trade and          revealed   that   Argencourt  had   significant   past  narcotics          experience.   See  Supp. App.  at 33-36.   Andreoni's  efforts to                        ___          obtain  firearms  for  the agents  suggested  real criminal-world          connections.  In accepting the one-kilogram amount as a realistic          reflection  of the  defendants' culpability,  the district  court          relied specifically on the  fact that Argencourt, at the  time of                                         -16-          this  offense, was out on bail on  state drug charges.9  That the          state charges  involved significantly smaller amounts  of cocaine          than  the one  kilogram does  not undermine  the crucial  fact of          prior access  to the  drug.   These circumstances taken  together          amply  support  the  district  court's  finding  that  defendants          intended  to   provide,  and  were  capable   of  providing,  the          negotiated amount of cocaine.  See United States v. McCarthy, 961                                         ___ _____________    ________          F.2d 972,  978 (1st Cir. 1992)  (sentencing court's determination          of drug amount reviewed only for clear error).10               Thus, this claim, like the others, is unavailing.               Affirmed.               ________                                        ____________________          9  According to  Argencourt's  presentence report,  the incidents          underlying  the state  charges  occurred in  November 1990  when,          under  surveillance by Pawtucket police, a confidential informant          made  three purchases of cocaine  from him.   Two counts alleging          delivery  of  cocaine  ultimately  were  dismissed,  and  he  was          sentenced  on  a  single  count of  possession  of  a  controlled          substance.          10  The  circuits have  not been  uniform  in their  treatment of          application  note  12.    A  conflict  exists  over  whether  the          government bears the  burden of showing  intent and capacity,  or          whether  the  defendant bears  the burden  of  showing a  lack of          intent  and capacity, see United States v. Barnes, 1993 U.S. App.                                ___ _____________    ______          LEXIS 11153, at *5-9 (9th Cir. May  17, 1993) (citing cases), and          some  confusion exists  over  whether the  court  is required  to          exclude a negotiated amount only where the  defendant lacked both                                                                       ____          the  intent and the ability to complete the drug transaction, see                      ___                                               ___          United States v.  Brooks, 957  F.2d 1138, 1151  & n.11 (4th  Cir.          _____________     ______          1992).   These  issues were  neither raised  nor of  significance          here.   Even assuming the government had the burden, the evidence          was  sufficient  to support  the  district  court's finding  that          defendants intended  and could  produce the negotiated  amount of                               ___          cocaine.                                         -17-
