
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1350                                    UNITED STATES,                                      Appellee,                                          v.                               FREDERICK FERMIN ORTIZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Barry P. Wilson for appellant.            _______________            Geoffrey E.  Hobart, Assistant United  States Attorney, with  whom            ___________________        Donald  K.  Stern, United  States  Attorney, and  R.  Bradford Bailey,        _________________                                 ___________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                     May 5, 1994                                 ____________________                      STAHL, Circuit Judge.   In this appeal,  defendant-                      STAHL, Circuit Judge.                             _____________            appellant Frederick Fermin Ortiz  challenges, on a variety of            grounds,  his  convictions  and  sentence  for  conspiracy to            possess cocaine with intent  to distribute and for possession            of  cocaine  with  intent  to distribute.    After  carefully            considering defendant's arguments, we affirm.                                              I.                                          I.                                          __                           BACKGROUND AND PRIOR PROCEEDINGS                           BACKGROUND AND PRIOR PROCEEDINGS                           ________________________________                      As is  always the case when  considering a criminal            defendant's challenge to his/her conviction, we interpret the            record  in a  light most  amenable to  the government.   See,                                                                     ___            e.g., United States  v. Ortiz,  966 F.2d 707,  710 (1st  Cir.            ____  _____________     _____            1992), cert. denied, 113 S. Ct. 1005 (1993).                   _____ ______                      On February 4, 1992,  several federal and local law            enforcement agents,  acting  in  response  to a  tip  from  a            reliable informant, were conducting surveillance of a single-            family  house  located  at  25  Glen  Ellen Road  in  Lowell,            Massachusetts.  These  agents observed defendant,  along with            codefendants  Walter  DeJesus Zapata  ("Zapata")  and William            DeJesus  Escobar-Vegara  ("Escobar")1   (and  several   other            individuals), moving  casually in  and around this  house and            its garage.  A Ford Taurus was parked in the  garage with its                                            ____________________            1.  The  trial  record  reflects,  and   defendant's  counsel            confirmed  at  oral  argument,  that  contrary  to  the  more            prevalent  Hispanic custom,  defendant  and his  codefendants            prefer  that the  last  of  their  given  names  be  used  as            surnames.                                         -2-                                          2            hood and  doors open.   Although the agents at  one point saw            Zapata  and Escobar enter the Taurus and begin tugging at the            vehicle's  back seat, at no time did they see anyone actually            doing any work under the car's hood.                      At  approximately  2:00  p.m.,  a   second  vehicle            occupied by two unidentified  males pulled into the driveway.            A  group of  individuals  including  defendant, Escobar,  and            Zapata approached the vehicle's passenger  side (with Escobar            in  the lead).   Escobar  then engaged  the passenger  of the            vehicle   in  conversation.      After  several   minutes  of            conversation, the  unidentified  passenger handed  Escobar  a            key, which Escobar placed into his pocket.                      Shortly thereafter, defendant, Escobar,  and Zapata            entered a blue station wagon parked in front of the house and            drove   away.    Defendant  was  the  driver.    One  of  the            surveilling agents  followed  this vehicle  to a  condominium            located at 77  Acton Road  in Lowell,  and took  up a  second            surveillance   position   about   twenty   yards   from   the            condominium's  entrance.    From this  position,  he observed            Escobar use  a key to unlock  the front door.   All three men            then proceeded inside.                      Several  minutes  later,   the  surveilling   agent            observed  defendant exit  the same  front door,  approach the            blue station wagon, remove a child safety restraint seat from            the wagon, and carry it over to a blue Monte  Carlo parked in                                         -3-                                          3            the condominium's driveway.  He unlocked the car door, placed            the  child's seat into the  back seat, and  then reentered 77            Acton Road.                      A few  moments later,  defendant  and Zapata  again            exited the condominium.  Each man was carrying a large, black            travel  bag which  appeared heavy  to the  surveilling agent.            They opened the trunk of the Monte Carlo, placed the two bags            inside, closed the trunk, and  reentered the condominium.   A            few minutes  later, Zapata exited the  residence, entered the            Monte  Carlo,  and  drove  away.   Subsequently,  Zapata  was            approached  by law enforcement  officials at a  rest area off            Route  128  in  Newton,  Massachusetts,  and  was  asked  for            permission to search  the Monte Carlo.   Zapata consented  to            the search, which  revealed that  the two black  bags he  and            defendant had placed into the trunk contained 25 kilograms of            cocaine.    Zapata   then  was  placed  under  arrest.2    An            arresting  officer testified that  one of the  two black bags            was unzipped 4-6 inches at the time of the consensual search,            and that, through this 4-6 inch opening, he could plainly see            brown  and yellow  taped  bundles which,  in his  experience,            typically are used to package kilogram quantities of cocaine.                      Later that same day, search  warrants were executed            at both 25 Glen Ellen Road and 77 Acton  Road.  The search of                                            ____________________            2.  The  details of Zapata's arrest are  set forth in greater            detail in United States  v. Zapata, No. 93-1349, slip  op. at                      _____________     ______            2-4 (1st Cir. March 24, 1994).                                         -4-                                          4            77 Acton Road turned up a variety of drug paraphernalia (none            of which was in plain view), drug packaging (all of which was            found  in the garbage), and an electric bill for the premises            in  the name of Thomas Alvarez.   It turned out that the blue            station wagon defendant drove  from 25 Glen Ellen Road  to 77            Acton Road also was registered to the same Thomas Alvarez.                        At  the  time  the  search  warrant  was  executed,            Escobar was found watching television  at 77 Acton Road,  but            defendant  was  not  present  at that  location.    Defendant            eventually was arrested at  25 Glen Ellen Road.   Immediately            after his arrest,  defendant told  the police that  he was  a            cleaner,  and that  he lived  on Beacon  Street in  Lawrence,            Massachusetts.   Later,  however, during  booking, he  stated            that  he  was a  mechanic and  lived  on Haverhill  Street in            Lawrence.  At the time of his arrest, defendant did  not have            any engine grease or oil on his hands.                      On February 26, 1992, a grand jury  returned a two-            count indictment charging defendant, Escobar, and Zapata with            (1)  conspiring to  possess with  intent distribute,  and (2)            possessing with intent  to distribute (as well as  aiding and            abetting  the  possession  of)  five  or  more  kilograms  of            cocaine.  See 21 U.S.C.    846, 841(a)(1); see also 18 U.S.C.                      ___                              ___ ____              2.   Trial commenced on  October 19, 1992.   On October 22,            1992,  at  the  conclusion  of  the  government's  case,  the            district court  granted  Escobar's  motion  for  judgment  of                                         -5-                                          5            acquittal made pursuant to  Fed. R. Crim. P.  29(a); however,            it denied a similar motion made by defendant.  On October 26,            1992, the jury returned guilty verdicts against defendant and            Zapata as to  both counts of  the indictment.   On March  16,            1993, the  district court imposed the  mandatory minimum 120-            month incarcerative  sentence prescribed by statute.   See 21                                                                   ___            U.S.C.   841(b)(1)(A)(ii).                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      On  appeal, defendant  argues  that (1)  there  was            insufficient   evidence  to  support   his  convictions;  (2)            prosecutorial misconduct during closing argument deprived him            of a fair  trial; (3) he  was victimized by  constitutionally            ineffective  assistance of  counsel; (4)  evidence discovered            after the trial should have entitled him to a new  trial; and            (5) the indictment  should have been dismissed because he was            not  tried within the  period prescribed by  the Speedy Trial            Act.   Defendant also takes  issue with the  district court's            method of determining  drug quantity at  his sentencing.   We            discuss each argument in turn.            A.  Sufficiency of the Evidence            A.  Sufficiency of the Evidence            _______________________________                      Defendant's  primary and  central argument  is that            there  was insufficient evidence  to support his convictions.            The argument  is not without  force, as the  evidence against            him was far  from overwhelming.   Moreover, it  is made  with                                         -6-                                          6            considerable   skill  and  energy  by  defendant's  appellate            counsel.   Ultimately, however, we are not persuaded that any            error took place.                      In  assessing whether there was sufficient evidence            to sustain a  conviction, we  examine the record  in a  light            most  favorable to  the  government,  drawing all  reasonable            inferences  in its  favor, with  an eye  towards  whether the            proof would have allowed a rational jury  to determine beyond            a reasonable doubt that the defendant was guilty of the crime            charged.   See,  e.g.,  Ortiz, 966  F.2d  at 711.    "In this                       ___   ____   _____            analysis,  no premium  is placed  upon  direct as  opposed to            circumstantial evidence; both types  of proof can  adequately            ground a conviction."  Id.  Indeed, the government "may prove                                   ___            its entire case through  the use of circumstantial evidence."            United  States v.  Akinola,  985 F.2d  1105,  1109 (1st  Cir.            ______________     _______            1993).                      Two other points should be  borne in mind.   First,            the  government "need not exclude every reasonable hypothesis            of innocence."  Id.   And second, "juries are not required to                            ___            examine the evidence in  isolation, for `individual pieces of            evidence, insufficient in themselves to prove a point, may in            culmination prove  it.'"   Ortiz,  966 F.2d  at 711  (quoting                                       _____            Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).            _________    _____________                      Here,  we think  it  apparent that  the sufficiency            issue reduces into a rather straightforward inquiry:  Could a                                         -7-                                          7            rational  jury  have found  beyond  a  reasonable doubt  that            defendant  knew that  the black  bag  he transported  from 77            Acton Road to  the trunk  of the blue  Monte Carlo  contained            cocaine?   After all,  if  defendant had  this knowledge,  we            think it self-evident from  the quantity of cocaine defendant            possessed, see United States v. Echevarri, 982 F.2d  675, 678                       ___ _____________    _________            (1st Cir. 1993)  (intent to distribute  can be inferred  from            the quantity of  the controlled  substances possessed),  from            defendant's undisputed  possession  of the  cocaine while  he            transported it from the  condominium to the Monte  Carlo, and            from   the   "`development   and   collocation   of   [other]            circumstances'" apparent in the  record, see United States v.                                                     ___ _____________            Lopez, 944 F.2d 33, 39 (1st Cir. 1991) (quoting United States            _____                                           _____________            v.  Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denied,                _______                                     _____ ______            111  S. Ct.  1625  (1991)),3 that  defendant and  Zapata (and            others  unknown to  the  grand jury)  had  at least  a  tacit            agreement to possess the cocaine with an intent to distribute            it, see United States  v. Fisher, 3  F.3d 456, 462 n.18  (1st                ___ _____________     ______                                            ____________________            3.  Among  these circumstances were  (1) defendant's apparent            access to 77 Acton  Road at a time when a  significant amount            of drugs  were being  stored there; (2)  defendant's apparent            access to an automobile registered to a  person who seemingly            had  some   degree  of  control  over  77   Acton  Road;  (3)            defendant's  significant  (in terms  of  time  and proximity)            association  with   Zapata  during  the  course  of  Zapata's            preparations  to  distribute  the  cocaine;  (4)  defendant's            placing of  the drugs into the trunk  of the Monte Carlo; and            (5)   defendant's   inconsistent  statements   regarding  his            residency and occupation following his arrest.                                         -8-                                          8            Cir. 1993) (noting elements of crimes  charged in the instant            indictment).                      We  conclude that  the  circumstantial evidence  in            this  case compels  an affirmative  answer to  this question.            Defendant was  among a  small group of  individuals presented            with a key to  a condominium where millions of  dollars worth            of  cocaine was being stored.  This suggests that the persons            who leased or owned  the condominium (and who, it  may fairly            be inferred, had knowledge of its contents) trusted defendant            enough  to allow  him  to be  present  at the  scene  where a            serious narcotics  offense was being committed.   This trust,            in  turn,   permits  a   reasonable  inference  of   criminal            complicity between  defendant and these persons.   See United                                                               ___ ______            States  v. Tejeda, 974 F.2d  210, 213 (1st  Cir. 1992) ("`The            ______     ______            fact finder  may fairly infer .  . . that it  runs counter to            human experience to suppose that criminal  conspirators would            welcome  innocent  non-participants  as  witnesses  to  their            crimes.'"  (quoting United  States  v. Passos-Paternina,  918                                ______________     ________________            F.2d 979, 985 (1st  Cir. 1990), cert. denied, 111 S. Ct. 2808                                            _____ ______            (1991))).   And, when this inference is coupled with the fact            that defendant, who had entered the condominium empty-handed,            actually retrieved the drugs  from the condominium and loaded            them  into  the  Monte Carlo,  cf.  Ortiz,  966  F.2d at  712                                           ___  _____            (indicating that  where the defendant was  present during the            course  of  transportation  or  storage  of  contraband,  the                                         -9-                                          9            possibility   that   s/he  is   an   innocent   bystander  is            significantly greater),  we think  it apparent that  the jury            rationally  "could have  found," Akinola,  985 F.2d  at 1109,                         _____               _______            that defendant  knew that  the black bags  contained cocaine.            Accordingly, we reject defendant's sufficiency challenge.4            B.  Prosecutorial Misconduct            B.  Prosecutorial Misconduct            ____________________________                      Defendant's second argument  is that  prosecutorial            misconduct  during closing  argument deprived  him of  a fair            trial.  Specifically, defendant contends that  the prosecutor            "repeatedly,   both  expressly  and  impliedly,  referred  to            Escobar as  a member  of a conspiracy  which included,  inter                                                                    _____            alia,  [himself]  and  Zapata"  despite  the  fact  that  the            ____            district court  had found  insufficient evidence to  send the            conspiracy  charge   against  Escobar   to  the  jury.     In            defendant's  view,  the  prosecutor's statements  constituted            impermissible references  to matters  not in evidence  or not            supported by a reasonable  view of the evidence.   See United                                                               ___ ______            States v. de Leon Davis, 914 F.2d 344-45 (1st Cir. 1990).  We            ______    _____________            are not convinced.                      Even if we assume arguendo the truth of defendant's                                        ________            assertion, we are constrained by  the fact that defendant did            not interpose a contemporaneous objection to these references                                            ____________________            4.  Much of  the evidence  we have  relied upon  in rejecting            defendant's  sufficiency  claim  equally implicated  Escobar,            whose motion for a judgment of acquittal at the conclusion of            the government's case was granted by the district court.  The            propriety of that acquittal is not, of course, before us.                                         -10-                                          10            during  the course  of  closing arguments.   Accordingly,  we            review only  for plain error.  And, error rises to this level            only when it is "`so  shocking that [it] seriously affect[ed]            the   fundamental  fairness   and  basic  integrity   of  the            proceedings conducted below.'"  E.g., United States v. Hodge-                                            ____  _____________    ______            Balwing, 952  F.2d 607, 611  (1st Cir. 1991)  (quoting United            _______                                                ______            States v. Olivo-Infante,938 F.2d 1406, 1412 (1st Cir. 1991)).            ______    _____________                      Here,   the  references  complained   of,  even  if            erroneous, fell far short of the plain error threshold.  They            did  not  in any  way interfere  with  the jury's  ability to            resolve  the keystone issue in this case -- whether defendant            knew that the  bags he  was transporting to  the Monte  Carlo            contained  cocaine.   Moreover,  they  were  followed by  two                                                                      ___            separate   instructions  informing  the   jury  that  closing            arguments  do not  constitute  evidence.   In light  of these            facts, and of the  further fact that there was  a significant            amount  of  circumstantial  evidence  supporting  the  jury's            finding  that  defendant, Zapata,  and  persons unknown  were            engaged in a conspiracy,  see supra note 3, there is no basis                                      ___ _____            for  us to  conclude that  the references  to Escobar  in the            closing  arguments,   even  if   erroneous,  resulted   in  a            miscarriage  of justice.  See United States v. Giry, 818 F.2d                                      ___ _____________    ____            120,  133 (1st  Cir.),  cert. denied,  484  U.S. 855  (1987).                                    _____ ______            Accordingly, we reject  defendant's prosecutorial  misconduct            argument.                                         -11-                                          11            C.  Ineffective Assistance            C.  Ineffective Assistance            __________________________                      Defendant next  argues  that his  trial  attorney's            failure to  object to the prosecutor's  references to Escobar            as  a  member  of  the conspiracy  during  closing  arguments            constitutes ineffective assistance of counsel.   So far as we            can  tell, this argument never was  presented to the district            court.    And, generally  speaking,  we will  not  address an            ineffective  assistance claim  raised for  the first  time on            direct  appeal.   See, e.g.,  United States v.  Jadusingh, 12                              ___  ____   _____________     _________            F.3d  1162, 1169  (1st Cir.  1994).   In situations  like the            present one, however,  where "`the critical facts are  not in            dispute  and a  sufficiently developed  record  exists,'" id.                                                                      ___            (quoting United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir.                     _____________    _______            1993)), there is no  reason for us to delay  consideration of            defendant's  claim.     Therefore,  we   address  defendant's            ineffective assistance argument on the merits.                      In    order    to   demonstrate    constitutionally            ineffective assistance of counsel,  a defendant must show (1)            that counsel's conduct fell below the applicable standard for            performance,  defined by what the lawyer knew, or should have            known,  at the time of his/her tactical choices; and (2) that            prejudice resulted.  Fisher, 3 F.3d at 463.  In this context,                                 ______            "prejudice"  means  that,  but  for  counsel's unprofessional            error,  there is a reasonable probability  that the result of            the proceedings  would have been different.   Lopez-Nieves v.                                                          ____________                                         -12-                                          12            United  States,  917 F.2d  645, 648  (1st Cir.  1990) (citing            ______________            Strickland v. Washington, 466 U.S. 668 (1984)).            __________    __________                      Here,  even  if  we  assume  arguendo  that   trial                                                   ________            counsel's   failure  to  object  fell  below  the  applicable            standard, we cannot say that, but  for the error, there is  a            reasonable  probability   that  defendant  would   have  been            acquitted.    As  we  have  stated  above,  the  prosecutor's            references to  Escobar during  his closing argument,  even if            erroneous, in  no way interfered  with the jury's  ability to            make the  central factual  determination in this  case (i.e.,            whether  defendant   knew   the  bags   contained   cocaine).            Furthermore,  we are  confident  that the  trial court's  two            instructions that  closing arguments  are not  evidence, made            subsequent to  the challenged references, largely  offset any            improper  effects  of   those  references.     Finally,   the            significant  circumstantial  evidence  supporting the  jury's            conspiracy  finding  cements  our  view  that  the challenged            references  did   not  affect  the  outcome   of  this  case.            Accordingly,  we reject  defendant's  argument  that  he  was            victimized  by  constitutionally  ineffective  assistance  of            counsel.            D.  Newly-Discovered Evidence            D.  Newly-Discovered Evidence            _____________________________                      Defendant's  fourth argument  is that  the district            court  erred  in denying,  by means  of  a margin  order, his            motion for a new  trial based upon newly-discovered evidence.                                         -13-                                          13            The  evidence at  issue is  (1) an  affidavit by  one Claudio            Tejeda,  which avers that defendant was working for Tejeda as            a  mechanic on February 4, 1992; and (2) an unsworn statement            by Escobar  providing an innocent explanation  for the events            of February  4, 1992.   Once again,  we are not  persuaded by            defendant's argument.                      In order for a defendant to prevail on a motion for            a  new  trial  based  upon  newly-discovered  evidence,  four            conditions  must be  met:   (1) the  evidence was  unknown or            unavailable  to  defendant  at the  time  of  trial; (2)  the            failure to  discover the evidence  was not  due to a  lack of            diligence on the part of defendant; (3) the new evidence must            be material;  and (4) the evidence would  probably produce an            acquittal  upon  retrial  of  defendant.   United  States  v.                                                       ______________            Benavente Gomez,  921 F.2d 378,  382 (1st Cir.  1990); United            _______________                                        ______            States  v. Wright, 625 F. 2d 1017,  1019 (1st Cir. 1980).  If            ______     ______            any one of  these four factors is  lacking, the motion for  a            new  trial should be denied.   United States  v. Natanel, 938                                           _____________     _______            F.2d  302, 313 (1st Cir. 1991), cert.  denied, 112 S. Ct. 986                                            _____  ______            (1992).                      Because the court denied defendant's motion without            stating its reasons, we do not know the precise basis for its            decision.  Our examination  of the record, however, convinces            us  that  the  court  could  not  have  found that  defendant            exercised due diligence in  attempting to secure Tejeda's and                                         -14-                                          14            Escobar's testimony prior  to the  conclusion of  trial.   No            portion  of  the  trial   record  before  us  indicates  that            defendant  ever expressed  a need  for testimony  from either            Tejeda  or Escobar; defendant neither requested a continuance            so that  he could try to locate either one of them nor sought            the district court's assistance in securing their presence by            means of the judicial process.  Cf. Wright, 625 F.2d at  1019                                            ___ ______            (affidavit stating that defendant, who  failed to move for  a            continuance  to  locate  witness,  had  been   conducting  an            "investigation"  into the  witness's  location  during  trial            would not preclude  a finding  of a lack  of due  diligence).            Moreover, in his severance motion, defendant did not indicate            any wish or intention to call Escobar as a witness on his own            behalf.5   Accordingly, without expressing any  comment as to            whether  defendant has met any of  the three other conditions            necessary  for  the  granting  of  a  new  trial,  we  reject            defendant's  assertion that  the court  erred in  denying his            motion.            E.  Speedy Trial Act            E.  Speedy Trial Act            ____________________                                            ____________________            5.  The only  indication  in the  record  of any  attempt  by            defendant to  locate Tejeda or Escobar during  trial is found            in the  text of  the motion  for a  new trial, which  states:            "Frederick Fermin Ortiz's lawyer kept telling Rosaura Barrios            [a friend of Ortiz] to find Escobar and  Claudio Tejeda.  She            finally found them on the twenty-seventh and twenty-eighth of            November [after defendant's trial was concluded]."  Patently,            this is insufficient to constitute due diligence.                                         -15-                                          15                      Defendant's  fifth  argument  is  that he  was  not            brought to  trial within  the 70-day period  mandated by  the            Speedy Trial  Act.  See  18 U.S.C.    3161(c)(1).  We  do not                                ___            agree.                      Defendant appears to concede that all time prior to            May 20,  1992, was properly  excluded from the  70-day period            prescribed in    3161(c)(1).   He  argues, however, that  the            120-day period from May 20, 1992, through September 18, 1992,            when  he  filed  a motion  to  dismiss  on  Speedy Trial  Act            grounds, was not excludable.  He  therefore contends that the            court erred in  denying his motion to dismiss  the indictment            for violation of Act.                      Defendant's argument overlooks  two facts.   First,            on June 16, 1992, Escobar filed  two motions to limit the use            of co-conspirator statements  against him.  Accordingly,  the            70-day speedy trial period,  which had started to run  on May            20,  1992, was tolled, at least for the next 30 days.  See 18                                                                   ___            U.S.C.    3161(h)(1)(F) and (J);6  see also United  States v.                                               ___ ____ ______________            Torres Lopez, 851 F.2d 520, 526 (1st Cir. 1988) (speedy trial            ____________            motion resulting in excludable  time from one defendant stops                                            ____________________            6.  Although the record is not  entirely clear on this point,            the district  court, which never ruled  on Escobar's motions,            apparently treated them  as motions which  did not require  a            hearing, and  which therefore only toll the 70-day period for            30 days.  See Henderson v.  United States, 476 U.S. 321, 328-                      ___ _________     _____________            29  (1986)  (indicating  that,  when a  pretrial  motion  not            requiring  a hearing is filed with the district court but not            ruled  upon,   3161(h)(1)(F) and (J) act in unison to exclude            30 days from the speedy trial clock).                                         -16-                                          16            the clock for all codefendants), cert.  denied, 489 U.S. 1021                                             _____  ______            (1989).   Second, on July  31, 1992, and  September 25, 1992,            the district court convened scheduling conferences at  which,            without any objection  from defendant's counsel,  defendant's            trial was continued (first until September 30, 1992, and then            until  October 19, 1992).  Therefore, it appears that all the            time prior to defendant's trial other than those periods from            May  20,  1992, through  June 16,  1992,  and July  16, 1992,            through July  31, 1992, was  excludable.  And,  because these            periods  of non-excludable  time do  not add  up to  70 days,            there was no Speedy Trial Act violation.            F.  Sentencing            F.  Sentencing            ______________                      Defendant's  final  argument is  that  the district            court  erred when,  in determining  that defendant  should be            held accountable for the 25 kilograms of cocaine found in the            two  bags for purposes of  both the Sentencing Guidelines and            the  mandatory minimum  sentence  prescribed by  21 U.S.C.               841(b)(1)(A)(ii), it did not make a finding as to defendant's            subjective knowledge  regarding drug quantity.   In so doing,            defendant  relies upon  an opinion  in which  Judge Weinstein            held  that a defendant can be sentenced only on the amount of            drugs s/he  reasonably foresaw  as being involved  in his/her            conduct.  See United States v. Ekwunoh, 813 F.  Supp 168, 178                      ___ _____________    _______            (E.D.N.Y. 1993),  vacated on other  grounds, 12 F.3d  368 (2d                              _______ __ _____  _______            Cir. 1994).                                         -17-                                          17                      While the issue raised certainly  is an interesting            one, it  is not one we need resolve here.  Defendant received            only the 120-month mandatory minimum sentence prescribed by              841(b)(1)(A)(ii) because the two  bags contained five or more            kilograms  of cocaine.    Thus, any  error  committed by  the            district  court would  have  been harmless  unless the  court            could have found, without  committing clear error, see United                                                               ___ ______            States  v. Bradley, 917 F.2d  601, 605 (1st  Cir. 1990), that            ______     _______            defendant  reasonably  did not  foresee  that  at least  five            kilograms of cocaine  were involved in  his offenses.   Here,            there  is no way the court could have reached that conclusion            without committing  clear error.7   The two bags,  which were            visibly  heavy to  the surveilling  agent, contained  25 one-            kilogram packages of cocaine (fifteen packages in one bag and            ten  in the other) and apparently  little, if anything, else.            And, as  we have  already observed,  the jury implicitly  and            supportably  found that  defendant knew  the contents  of the            black  bags.   In light  of these  facts alone,  there simply            would be no basis  for finding that defendant  reasonably did            not  foresee that  at least  five  kilograms of  cocaine were                                            ____________________            7.  In so stating,  we note that, at  his sentencing hearing,            defendant did not evince a desire to add to or challenge  any            of the drug quantity  evidence adduced at trial.   Cf. United                                                               ___ ______            States  v. Tavano, 12 F.2d  301, 305-06 (1st  Cir. 1993) (Due            ______     ______            Process Clause requires the  sentencing judge to consider all            available   drug   quantity   evidence,  including   evidence            conflicting with  that introduced  at trial.).   Accordingly,            our  conclusion  is based  upon  the  drug quantity  evidence            advanced at trial.                                         -18-                                          18            involved in his  crimes.  Accordingly,  even if the  district            court  erred in failing to  make a finding  as to defendant's            subjective  knowledge regarding  drug  quantity (a  point  on            which we express no opinion), the error was harmless.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Having  rejected  each  of the  arguments  made  on            appear by defendant, we affirm his convictions and sentence.                      Affirmed.                      Affirmed                      ________                                         -19-                                          19
