
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1858                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     ROBERT HAHN,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Paul J. Haley, with whom Scott L.  Hood and Law Office of Paul J.             _____________            ______________     _____________________        Haley were on brief for appellant.        _____             David A. Vicinanzo,  Assistant United States Attorney,  with whom             __________________        Peter E. Papps, United States Attorney, was on brief for appellee.        ______________                                                                                      ____________________                                    March 9, 1994                                                                                      ____________________                    CYR, Circuit  Judge.  Appellant Robert  Hahn challenges                    CYR, Circuit  Judge.                         ______________          various  trial court rulings and  the sufficiency of the evidence          supporting  his convictions for  using or  carrying a  firearm in          relation to  a drug trafficking  crime, 18 U.S.C.    924(c), con-          spiring to possess and distribute marijuana, 21 U.S.C.   846, and          conducting  a continuing criminal enterprise, 21 U.S.C.   848(a),          (c).  Careful review discloses no error.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    We recite the  relevant facts in the  light most favor-          able to the verdict.   See United States v. Welch,  ___ F.3d ___,                                 ___ _____________    _____          ___, No. 92-1368  (1st Cir. Dec. 30, 1993,  slip op. at 19).   In          1992, Hahn and ten other  defendants were jointly indicted in the          United  States District Court for  the District of New Hampshire,          as former members of a nationwide marijuana trafficking conspira-          cy spanning  more than a decade  and headed by one  Alberto "Dad"          Lujan.  As a principal  underboss, Hahn had been responsible for,          inter alia, transporting smuggled  Mexican marijuana from Arizona          _____ ____          for  distribution  in California,  Colorado, Michigan,  New Hamp-          shire, Massachusetts and New York, among other locales.                    In the early 1980s, Hahn and Lujan were local marijuana          dealers seeking to penetrate marijuana markets outside Arizona in          order  to capitalize  on  their  connections  with  suppliers  in          Mexico.   Eventually,  Hahn established  a business  relationship                                          2          with  Mark  Heino, a  New  Hampshire  native living  in  southern          California.   Some of  the marijuana Heino  bought from  Hahn, he          resold  in California.   The  rest Heino  distributed  during his          frequent trips to New Hampshire.   Heino himself became an under-          boss in the Lujan organization,  a position he retained until his          arrest on trafficking charges in early 1984.                    With  Heino  out  of  circulation,  the  New  Hampshire          operation was taken over by  Hugh Mulligan, another New Hampshire          native.  Like  Heino, Mulligan had been recruited  into the Lujan          organization by  Hahn, who  thereafter supervised  Mulligan's New          Hampshire operation.   Later,  when the  New Hampshire  marijuana          market  softened, Mulligan  introduced Hahn  to  Dennis and  P.J.          Dougherty,  Long Island residents  with New Hampshire  ties.  The          Doughertys afforded the  Lujan organization access to  the lucra-          tive  Metropolitan New York marijuana market, and large marijuana          shipments were soon being trucked in from Arizona.  Several years          later,  after the  Doughertys dropped  out of  the picture,  Hahn          established a high-volume  marijuana trade with another  New York          dealer.   Meantime, Heino was  released from prison  in mid-1986,          returned to New Hampshire, and reestablished himself in the Lujan          organization.    During  this period,  Hahn  concentrated  on the          organization's interests in Arizona,  Metropolitan New York,  and          New Hampshire.                                          3                    Hahn's primary  role was  to supervise marijuana  ship-          ments from Arizona  to New York and New England.1  In early 1991,          Lujan set  up a bogus  produce-trucking operation as a  cover for          the marijuana shipments.  A professional truck  driver, one Roger          Bradley, was recruited for the long-haul runs between Arizona and          the  Northeast.   Upon  arrival  at his  East  Coast destination,          Bradley  would contact Hahn to arrange for offloading.  Normally,          Bradley  would "deadhead"  back to  Arizona, but  on occasion  he          transported large quantities of currency back to Lujan at  Hahn's          request.2                    The cross-country trucking operation was a success.  At          its  apex, during 1991 alone, thirteen to fifteen tractor-trailer          loads were transported from Arizona to the Northeast under Hahn's                                        ____________________               1Hahn's secondary role  was to  ensure the  security of  the          organization's  marijuana supply in  Arizona.   Several witnesses          testified  that Hahn  almost always  carried  a .45  caliber Colt          Commander handgun.  Coconspirator Michael Sheehan testified  that          Hahn admitted conducting  raids, or "rips," on  rival traffickers          and   stealing their marijuana, thereby impeding the competition.          Hahn told Sheehan that  he had been wounded  by gunfire during  a          "rip" in Tucson on December 8, 1989.   At trial, a police officer          testified to having found Hahn in the aftermath of the December 8          shootout, and the government introduced photographs depicting the          shootout scene, strewn with bullets and bales of marijuana.                2The cross-country transportation operation required manpow-          er.  The  principal truck driver was Bradley, but on at least one          occasion  coconspirators  Michael  Sheehan and  Jeff  Heino, Mark          Heino's brother, were   brought to Arizona  by Hahn to help  with          the driving.   Hahn also recruited his stepson,  Craig Nezat, and          Nezat's cousin,  Robert Mercado,  to come to  New York  to assist          with  offloading.   And,  finally,  Hahn often  used  either Jeff          Heino, Sheehan, or  Ken White, as a helper    to drive and assist          in offloading the marijuana.   Although Mulligan took a back seat          to  Mark Heino after the  latter was released  from prison, on at          least one occasion Hahn used Mulligan as a courier for transport-          ing the organization's currency from New York to Arizona.                                          4          supervision,  approximating 5,000  pounds apiece.    The criminal          conspiracy unravelled shortly thereafter,  however.  During 1992,          Hahn's performance faltered, due apparently to his cocaine habit,          and he was cashiered by Lujan.  Heino was unable to reestablish a          supply line between Arizona and New Hampshire.  Finally, Hahn was          arrested in Arizona on November 12, 1992.3                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Sufficiency of the Evidence          A.   Sufficiency of the Evidence               ___________________________               1.   Standard of Review               1.   Standard of Review                    __________________                    The challenges Hahn  asserts to the sufficiency  of the          evidence  and to  the  denial  of his  motions  for judgments  of          acquittal  "raise a  single issue."   United  States v.  Batista-                                                ______________     ________          Polanco, 927 F.2d 14, 17 (1st Cir. 1991), quoted in United States          _______                                   _________ _____________          v.  Cassiere, 4 F.3d 1006, 1011  (1st Cir. 1993); see also Welch,              ________                                      ___ ____ _____          ___ F.3d  at ___  [slip op. at  19].   The verdicts  are reviewed          under well-recognized standards:                    We assess the sufficiency  of the evidence as                    a whole, including all reasonable inferences,                    in the  light most favorable to  the verdict,                    with  a view to  whether a rational  trier of                    fact could  have found  the defendant  guilty                    beyond a reasonable  doubt.  We do  not weigh                    witness credibility,  but resolve  all credi-                    bility issues in  favor of the verdict.   The                    evidence may be  entirely circumstantial, and                    need not exclude  every reasonable hypothesis                    of  innocence; that  is,  the factfinder  may                                        ____________________               3Hahn's  ten codefendants entered  into plea agreements with          the government.                                          5                    decide  among  reasonable  interpretations of                    the evidence.          Batista-Polanco, 927 F.2d at 17 (citations omitted).          _______________               2.   Continuing Criminal Enterprise               2.   Continuing Criminal Enterprise                    ______________________________                    A conviction  under 21 U.S.C.    848 for engaging  in a          continuing criminal  enterprise ("CCE") requires  proof beyond  a          reasonable doubt that  the defendant (1) committed a  felony drug          offense, (2) as  part of a continuing series  of such violations,          (3) in concert with  five or more persons in relation  to whom he          acted as a supervisor, organizer,  or manager, (4) and from which          multiple  operations  he  realized  substantial income  or  other          resources.   See, e.g., United States v. Rouleau, 894 F.2d 13, 14                       ___  ____  _____________    _______          (1st  Cir. 1990).   Hahn claims  that the  government established          neither the third nor the fourth element of the CCE offense.                    Under the  familiar construction accorded the third CCE          element, the jury  need only have found that  the predicate crime          was committed in concert with at least five different individuals          in relation to whom the  defendant served as an organizer, super-          visor,  or in any  other management  position.   See 21  U.S.C.                                                             ___          843(c)(2)(A); see also United States v. David, 940 F.2d 722, 730-                        ___ ____ _____________    _____          32 (1st  Cir. 1991), cert.  denied sub nom., Toro  Aristizabal v.                               ____   ______ ___ ____  _________________          United States, 112 S. Ct. 605 (1991), and cert.  denied sub nom.,          _____________                         ___ _____  ______ ___ ____          Yarden v.  United States, 112 S. Ct. 908 (1992), and cert. denied          ______     _____________                         ___ _____ ______          sub  nom., Toro  Aristizabal v.  United States,  112 S.  Ct. 1298          ___  ____  _________________     _____________          (1992), and cert.  denied, 112 S. Ct. 2301  (1992); United States                  ___ _____  ______                           _____________                                          6          v. Jenkins, 904 F.2d 549,  553 (10th Cir.), cert. denied,  115 S.             _______                                  ____  ______          Ct. 395 (1990).4                    The  record abounds with evidence that Hahn performed a          supervisory role in the Lujan organization which required manage-          ment of more  than five other individuals.   First, Hahn concedes          that  he  supervised Craig  Nezat and  Robert Mercado.   Further,          there  is  uncontroverted evidence  that  he exercised  virtually          exclusive managerial control of marijuana transportation  between          Arizona and  the Northeast, which means that  truck drivers Roger          Bradley, Michael Sheehan and Jeff Heino were under Hahn's control          and  supervision from time to time  as well.  Although these five          subordinates were enough  to establish the third CCE element, Ken          White and Hugh Mulligan were managed by Hahn as well.   See supra                                                                  ___ _____          at pp. 3-4.5                                        ____________________               4As the Tenth Circuit explained in Jenkins:                                                   _______                    [The  CCE statute's]  use  of the  indefinite                    article when describing 'a position of organ-                                            'a                    izer' or 'a supervisory position or any other                             'a                         any other                    position of  management' contemplates  that a                    given network  may have  many persons  in au-                    thority.  Thus, the defendant need not be the                    dominant organizer  or manager of  the enter-                    prise; he  need only  occupy some  managerial                                                 some                    position with respect  to five  or more  per-                    sons.           Jenkins, 904 F.2d at 553 (emphasis in original).          _______               5It is therefore unnecessary to address Hahn's argument that          he did not control the New Hampshire branch  of the Lujan organi-          zation.  "[S]o  long as the  record supports a  finding that  any                                                                        ___          five people  were under  [the defendant's]  control, our task  is          complete and the status of  the other individuals is immaterial."          David, 940 F.2d at 731 (emphasis in original).          _____                                          7                    Hahn's  challenge to the sufficiency of the evidence on          the fourth CCE  element is unavailing as well.   The "substantial          income" requirement may  be met either by direct  evidence of the          revenues  realized and resources accumulated by the defendant, or          by  such circumstantial evidence  as the defendant's  position in          the criminal organization and the  volume of drugs handled by the          organization.  United States v. Roman, 870 F.2d 65, 75 (2d Cir.),                         _____________    _____          cert. denied, 490  U.S. 1109 (1989); United States  v. Sisca, 503          ____  ______                         _____________     _____          F.2d 1337,  1346 (2d Cir.),  cert. denied, 419 U.S.  1008 (1974).                                       _____ ______          The "substantial income"  test establishes no fixed  minimum, but          is intended "to  exclude trivial amounts derived  from occasional          drug  sales," Roman,  870 F.2d at  75; see also  United States v.                        _____                    ___ ____  _____________          Medina, 940  F.2d  1247, 1251  (9th  Cir. 1991)  ("The  practical          ______          meaning of 'substantial income  or resources' will normally be  a          question for the trier of fact").                    There is overwhelming circumstantial evidence that Hahn          derived "substantial  income" from  the management  services ren-          dered to the Lujan organization.   The government need only prove          revenue, not  profit.   See, e.g., Roman,  870 F.2d  at 75.   The                                  ___  ____  _____          sheer  scope of  the  conspiracy,  which  generated  millions  of          dollars from many  tons of marijuana over several years, provided          ample  basis for a  reasonable inference  that Hahn  realized far          more than trivial  amounts of income from the  organization.  See                                                                        ___          id.    For example,  the trial  testimony indicated  that Bradley          ___          alone transported approximately  50,000 pounds of marijuana  from          Arizona to  the Northeast  and over $1  million in cash  from New                                          8          York  to  Arizona at  Hahn's  direction  on one  occasion  alone.          Coconspirator  Ken  White  testified that  he  purchased  tens of          thousands of dollars  worth of automobiles and handguns at Hahn's          request.  And coconspirator Jeff Heino testified  that Hahn typi-          cally spent $1,500 to $2,000 per day while Heino was working with          him  in the  field  on  organization business.    The fourth  CCE          element was established beyond a reasonable doubt.6               3.   Conspiracy to Possess and Distribute Marijuana               3.   Conspiracy to Possess and Distribute Marijuana                    ______________________________________________                    Next,  appellant  challenges  the  sufficiency  of  the          evidence supporting his  conviction for conspiring  to distribute          marijuana, see  21  U.S.C. 846,  which  requires proof  beyond  a                     ___          reasonable doubt  that "(1) a  conspiracy existed, (2)  . . . the          defendant knew  of it, and (3) . . .  he voluntarily participated          in it."  David, 904  F.2d at 735.   "A  criminal conspiracy  is a                   _____          tacit or  explicit agreement to  perform an unlawful act  or omit          one the law  requires."  United States v. Penagaricano-Soler, 911                                   _____________    __________________          F.2d 833, 840 (1st Cir.  1990), citing Iannelli v. United States,                                          ______ ________    _____________          420 U.S.  770, 777 (1975).   The illicit agreement may  be estab-          lished by  direct and circumstantial evidence.   Batista-Polanco,                                                           _______________          927 F.2d at 19.                    Hahn's claim that the government failed to establish an          agreement  among  him and  his  confederates is  frivolous.   The                                        ____________________               6Although Hahn's father testified that throughout the period          in question his son lived in a trailer behind the family home and          was "constantly  asking for money,"  we may not presume  the jury          incapable  of circumspection.   See Batista-Polanco, 927  F.2d at                                          ___ _______________          17.                                          9          evidence undergirding the CCE conviction  alone, see supra at pp.                                                           ___ _____          6-8, was sufficient to support a jury finding that Hahn conspired          with  at least  seven  other  persons  to  distribute  marijuana.          Beyond  that, however, Hahn  concedes that  he was  a "middleman"          between "Dad"  Lujan and Mark  Heino.  Finally, the  evidence was          not nearly so limited, but demonstrated beyond a reasonable doubt          that  Hahn  was a  key  conspirator  in  a large-scale  marijuana          conspiracy involving many other people.               4.   Firearms Conviction               4.   Firearms Conviction                    ___________________                    Hahn contends  that the  government  did not  establish          that he  "used or carried" a firearm during  and in relation to a          drug  trafficking crime as required by 21  U.S.C.   924(c).  This          claim too is  without merit.  Hahn concedes  that "many witnesses          testified  at trial  regarding the  fact that  the defendant  oc-          casionally carried  a weapon."7   Since we will  not second-guess          credibility determinations by the jury, id. at 17, that testimony                                                  ___          was sufficient  evidence in  itself  since these  weapon-carrying          incidents  involved  activities  in  direct  furtherance  of  the          conspiracy.  See supra notes 1 & 7.                       ___ _____                                        ____________________               7We mention  but a few examples.  First, coconspirator Craig          Nezat testified that  Hahn carried a gun  during their marijuana-          related business trips  to New York.   Second, coconspirator  Ken          White testified that he bought more than one dozen guns for Hahn,          and that Hahn  almost always carried  a gun.  Finally,  when Hahn          was  found at the December  8, 1989 shoot-out  scene, he lay only          inches from  a .45  Colt Commander, his  signature handgun.   See                                                                        ___          supra at note 1.          _____                                          10          B.   Motions for Mistrial          B.   Motions for Mistrial               ____________________                    Hahn charges  error in the  denial of  his motions  for          mistrial based on  the government's failure to establish that his          involvement in the "rip" shootout in Tucson was in furtherance of          the conspiracy.   A mistrial need not  be allowed absent a  clear          showing of prejudice.  United States v. Sclamo, 578 F.2d 888, 891                                 _____________    ______          (1st Cir. 1978); United  States v. Pappas, 611 F.2d 399, 406 (1st                           ______________    ______          Cir. 1979).  We review the mistrial ruling  for "abuse of discre-          tion."   United States v.  Dockray, 943 F.2d  152, 157 (1st  Cir.                   _____________     _______          1991).                    After the  government's opening statement,  the defense          moved for a  mistrial based on the prosecutor's  reference to the          Tucson "rip."   See supra note 1.  The  government represented at                          ___ _____          sidebar  that it  would link  the  Tucson "rip"  with the  larger          conspiracy through the testimony  of coconspirator Michael  Shee-          han.   The  court accordingly  denied  the motion  for  mistrial,          without prejudice to  its renewal.  Sheehan  later testified that          Hahn had  admitted that he  conducted the Tucson "rip"  to "knock          out  the  competition."   Further,  Sheehan  testified  that Hahn          conducted  at least  one other  such  raid while  Sheehan was  in          Arizona.                    At the close of the government's case,  the court ruled          the Tucson "rip" evidence admissible  as an overt act in further-          ance  of  the conspiracy.   Hahn  presents no  argumentation even          remotely suggestive of an abuse of discretion, merely reiterating          the unsupported  conclusion that the  Tucson "rip" was part  of a                                          11          separate  conspiracy.  The government correctly responds that the          jury  reasonably could have found otherwise;  that is, by intimi-          dating  the  competition,  and  stealing  their  marijuana,  Hahn          furthered the interests of the Lujan organization.                                          12          C.   Evidentiary Rulings          C.   Evidentiary Rulings               ___________________                    Hahn filed a pretrial motion in limine to  preclude, as                                                 __ ______          irrelevant or unduly  prejudicial:  (1)  testimony of an  Arizona          state  trooper who  had made  a routine  stop of a  vehicle being          driven by Hahn; and (2) testimony of another officer who searched          a  different vehicle  (subsequently linked  with  Hahn), and  the          physical evidence recovered in the ensuing inventory search.                 1.   Arizona Traffic Stop               1.   Arizona Traffic Stop                    ____________________                    Arizona State  Trooper Carlos Contreras  testified that          he encountered Hahn in  February of 1992 when he stopped  a black          Ford  pickup truck with  New Hampshire license  plates because it          lacked mud flaps.   The driver, Hahn, was in lawful possession of          a .45  caliber Colt  Commander.  The  government argued  that the          traffic-stop evidence  was highly probative  of the scope  of the          alleged conspiracy and Hahn's role in it, and that it corroborat-          ed important testimony provided by other prosecution witnesses.8                    Hahn  argues that the traffic-stop and handgun evidence          should not have survived  the gauntlet for "other acts"  evidence          established under Federal Rules of Evidence 403 and 404(b).                     First, the past incident must have some rele-                    vance  other  than  to  show the  defendant's                    propensity to commit the crime. United States                                                    _____________                                        ____________________               8First, it established that Hahn was driving a New Hampshire          vehicle in Arizona.   Second, the black  Ford pickup registration          was in Hahn's name, and indicated a dwelling owned by coconspira-          tor Mark Heino as Hahn's New Hampshire address.  Third, Ken White          had testified  to buying a  black Ford pickup at  Hahn's request.          Fourth, the  Colt  Commander  .45 bore  the  same  serial  number          appearing on the  bill of sale for  a handgun Ken White  had pur-          chased at Hahn's request.                                          13                    v. Ferrer-Cruz, 899 F.2d  135, 137 (1st  Cir.                       ___________                    1990).  Second, even  if specially  relevant,                    the danger of  prejudice cannot substantially                    outweigh the probative value of the evidence.                    Id. at 138; Fed. R. Evid. 403.                    ___          United States v.  Agudelo, 988 F.2d 285, 287 (1st Cir. 1993); See          _____________     _______                                     ___          United  States v.  Williams, 985  F.2d 634,  637 (1st  Cir. 1993)          ______________     ________          (similar).                    The  district court first  conducted an in  camera con-                                                            __  ______          ference with  counsel to  delimit Trooper Contreras's  testimony,          heard  the  testimony, then  found  that the  testimony  forged a          relevant  link among  various  regional  elements  in  the  Lujan          organization.   Then, with  defense counsel's imprimatur,  a firm          jury instruction was given to the effect, inter alia, that it was                                                    _____ ____          lawful for Hahn to possess the handgun.9                    The  court correctly  ruled that the  challenged "other          acts" evidence  was not  precluded under  Rule 404(b)'s  absolute          bar,  which "excludes  evidence . . .  relevant  only because  it                                                           ____          shows bad character," United States v. Ferrer-Cruz, 899 F.2d 135,                                _____________    ___________          137  (1st Cir.  1990) (emphasis in  original); see  Williams, 985                                                         ___  ________                                        ____________________               9Immediately after  Trooper Contreras's  direct examination,          the district court instructed the jury as follows:                    Ladies  and Gentleman  of the jury,  you have                    heard testimony  from this witness  about Mr.                    Hahn's  possession of  a firearm  in Arizona.                    The witness has already testified that it was                    entirely lawful for Mr.  Hahn to possess that                    firearm and  the witness's statement  is cor-                    rect and you are to understand  from me as my                    instruction on the  law that it  was entirely                    lawful for Mr.  Hahn to possess that  firearm                    and you're  not to draw any inference against                    Mr. Hahn because he was in possession of that                    firearm as testified to by this witness.                                          14          F.2d at 637; all evidence  derived from the traffic stop, includ-          ing  the handgun,  clearly bore  direct  relevance to  legitimate          issues, see note 7 supra.   Furthermore, possession of a licensed                  ___        _____          firearm is neither a bad act nor indicative of bad character.                    Under the  required Rule  403 balancing,  see id.,  the                                                              ___ ___          "other acts" evidence itself posed scant  risk of engendering any                                ______          improper  inference of predisposition to possess or use a firearm          unlawfully, as distinguished  from lawful access to  a particular          __________                         ______          firearm, a  piece of evidence highly relevant  to Hahn's involve-          ment  and role  in  the  alleged conspiracy  and  CCE.   Whatever          "prejudice" resulted  by reason of  the fact that Hahn  was being          tried, inter alia, on a weapons charge, was not only mitigated by                 _____ ____          the  limiting instruction, see  Huddleston v. United  States, 485                                     ___  __________    ______________          U.S. 681, 691-92, citing United States v. Ingraham, 832 F.2d 229,                            ______ _____________    ________          235 (1st Cir.  1987), cert. denied, 486 U.S. 1009 (1988), but did                                _____ ______          not  derive unfairly  from the  challenged  evidence itself.   We          discern no unfair prejudice and no abuse of discretion.               2.   The Lincoln Mark VII               2.   The Lincoln Mark VII                    ____________________                    Hahn  attempted  to  preclude evidence  seized  from  a          Lincoln Mark  VII abandoned near  an airport in Islip,  New York.          An inventory search yielded, inter  alia, a .45 caliber Derringer                                       _____  ____          handgun, several Colt  .45 caliber ammunition clips,  and various          travel documents  in Hahn's  name.   Coconspirator Ken  White had          testified  to purchasing an identical Lincoln  Mark VII at Hahn's          behest, and several witnesses testified that the Lincoln was used          by  Hahn in his  New York City  area activities in  behalf of the                                          15          Lujan organization.  The Derringer  bore a serial number matching          that on the  bill of sale White received when he purchased it, as          he did  other handguns,  at Hahn's request.   Finally,  among the          travel  documents found  in the  Lincoln  was the  receipt for  a          round-trip  airline ticket  issued  in  Hahn's  name  for  travel          between Tucson and Islip.                     Hahn argues that this evidence should have been exclud-          ed under Rule  403 because its prejudicial  effect outweighed its          probative value.   The  difficulty with Hahn's  claim is  that he          "has  not shown  that  the  probative value  of  the 'other  act'          evidence was substantially  outweighed by its unfair  prejudice."                                                        ______          United  States v.  Carty, 993  F.2d  1005, 1011  (1st Cir.  1993)          ______________     _____          (emphasis in  original); see United  States v. Rodriguez-Estrada,                                   ___ ______________    _________________          877 F.2d 153, 156 (1st Cir.  1989) ("all evidence is meant to  be          prejudicial; it is only unfair prejudice which must be avoided").          Although  evidence of  handgun possession  may  indeed invite  an          inference that the  defendant used the gun,  the entirely legiti-                                        ____          mate predicate inference for so concluding is that prior  posses-               _________          sion makes it  "more probable" that the defendant  used a handgun                                                             ____          than would be the case if there were no such evidence.   See Fed.                                                                   ___          R.  Evid.  401.   Thus,  no unfair  inference  of character-based          predisposition was necessary to constitute the seized handgun and          ammunition  probative  evidence  on  several  important   factual          issues, including Hahn's activities in the  New York area.  As no          cautionary  instruction was  requested, we  discern  no abuse  of          discretion.                                          16                                                    17          D.   Impeachment Evidence          D.   Impeachment Evidence               ____________________                    After trial,  Hahn's attorney  became aware  of a  plea          agreement  and a  police report  relating  to government  witness          Roger  Bradley  which  had  not  been  provided to  the  defense.          Claiming that these documents would have been useful for impeach-          ment purposes, Hahn moved  for a new  trial.  The district  court          denied the motion.                    "[T]he district court's determination on the materiali-          ty of  newly discovered  evidence in  prosecutorial nondisclosure          cases  is ordinarily  accorded  deference."    United  States  v.                                                         ______________          Sanchez,  917 F.2d 607, 618 (1st  Cir. 1990) (citations omitted),          _______          cert. denied, 499 U.S. 977 (1991).  A new trial  is in order only          _____ ______          if Hahn can demonstrate a reasonable probability  that the result          would  have been  different had  the defense provided  the undis-          closed evidence before trial.   See Barrett v. United States, 965                                          ___ _______    _____________          F.2d 1184, 1189 (1st Cir. 1992); Sanchez, 917 F.2d at 617.                                           _______                    The district court ruled that  no such showing had been          made by Hahn because:  (1) defense counsel had been provided with          a plea agreement  between Bradley and the  United States Attorney          for the District of New Hampshire, and had been made aware of the          existence of the  Arizona plea agreement even though the document          itself  was not  provided; (2)  Hahn's counsel  made good  use of          these plea agreements at  trial and, indeed, Bradley admitted  on          cross-examination that he  was hoping for  a lighter sentence  in          exchange for his testimony; and (3) the Arizona police report was          cumulative,  as it contained  information previously  provided to                                          18          the defense in other documents,  and had been effectively used in          cross-examination.   Careful review  leaves no  doubt that  these          findings were well founded, in  law and fact.  "'Impeachment evi-          dence, even that which tends to further undermine the credibility          of the  key government witness whose credibility has already been          shaken  due to  extensive cross-examination,  does  not create  a          reasonable  doubt that did not otherwise exist when that evidence          is cumulative  or collateral.'"   Id.  at 618-19  (quoting United                                            ___              _______ ______          States v.  Shelton, 588  F.2d 1242, 1248  (9th Cir.  1978), cert.          ______     _______                                          _____          denied, 442 U.S. 909 (1979)).          ______                     E.   Sentencing          E.   Sentencing               __________                    The district  court imposed  two concurrent  life terms          for  the CCE  and  conspiracy  count convictions,  as  well as  a          mandatory, consecutive five-year  term for  the firearms  offense          under  18 U.S.C.   924(c); a $25,000  fine; costs of confinement;          and  five years'  supervised release.10   In  accordance  with 18                                        ____________________               10These sentences were imposed  pursuant to the  November 1,          1992, version of the Sentencing Guidelines.  See U.S.S.G.   1B1.1                                                       ___          (1992).  The    924(c) conviction triggered a  mandatory consecu-          tive five-year sentence.  See id.   2K2.4.  The CCE and conspira-                                    ___ ___          cy counts  were grouped  pursuant to  U.S.S.G.   2D1.5,  comment.          (n.4).  See id.   3D1.3.                  ___ ___               On  the  conspiracy  conviction,  the  court  conservatively          calculated  the drug quantity  at 10,000  to 30,000  kilograms of          marijuana,  see id.    2D1.1(c)(4),  for  a  base  offense  level                      ___ ___          ("BOL") of  36, augmented by a two-level enhancement for possess-          ing a firearm, see id.    2K2.4, comment. (n.2), and a four-level                         ___ ___          enhancement for Hahn's  leadership role, see id.    3B1.1(a), for                                                   ___ ___          an adjusted base offense level ("ABOL") of 42.               On the CCE count, the ABOL was 42 as well, see  id.   2D1.5,                                                          ___  ___          and  Hahn's  category I  criminal  history status  resulted  in a          guideline sentencing  range of 360  months to life. See  id.   5A                                                              ___  ___          (sentencing table).                                          19          U.S.C.    3553(c)(1), the  district court  entered  the following          statement of  reasons for sentencing  Hahn at the upper  limit of          the guideline sentencing range ("GSR"):                    1.   Hahn  was  a  career  criminal  who  had                         "devoted his entire life to the business                         of trafficking in illegal drugs."                    2.   Hahn used weapons, violence, and intimi-                         dation as a day-to-day part of his busi-                         ness operation.                    3.   Estimated  conservatively, the  quantity                         of  marijuana attributable  to Hahn  was                         well in excess  of the 10,000  kilograms                         necessary  to  qualify for  the  offense                         level found  applicable in  the pre-sen-                         tence report.                    4.   Hahn managed and  corrupted considerably                         more than five people over the course of                         the conspiracy.          The only challenge to these findings is directed at the amount of          marijuana for which Hahn was held responsible.                    The  "drug quantity" determination  must be based  on a          preponderance of the  evidence, U.S.S.G.    1B1.3, and we  review          only  for clear  error.  United  States v. Tracy,  989 F.2d 1279,                                   ______________    _____          1287  (1st Cir.),  cert.  denied,  113 S.Ct.  2393  (1993).   The                             _____  ______          presentence report  recommended that  64,200 pounds  of marijuana          (approximately  29,000 kilograms) be attributed to Hahn, based in          part on  the trial testimony  of several witnesses  who recounted          particular  transactions during the  decade-long period from 1980          to early 1991, augmented by an estimate of the amount transported          by  Roger Bradley in  thirteen tractor-trailer loads  during 1991          alone.  The  court conservatively estimated  the total amount  at          49,700 pounds for sentencing purposes.                                          20                    Hahn's challenge  is based exclusively on a credibility          attack against Bradley's trial testimony.  But see  United States                                                     ___ ___  _____________          v. Sepulveda, ___ F.3d ___, ___  (1st Cir. 1993) [Slip  op. at 72             _________          (December 20, 1993)]  (where testimony  provides competent  basis          for estimating drug quantity,  we need go no further, id.  at ___                                                                ___          [slip op.  at 77]).   Not only  are the  district court  findings          fully supported, but Hahn does not allege that he was responsible          for  less than  the  10,000 kilograms  of  marijuana required  to          trigger BOL 36.  See note 10 supra.  Thus, any alleged discrepan-                           ___         _____          cy in weight would be immaterial for guideline sentencing purpos-          es.                      Affirmed.                    Affirmed.                    ________                                          21
