
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1166                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    MICHAEL NASON,                                 Defendant-Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               J. Michael  McGuinness, by  Appointment of  the Court,  with               ______________________          whom McGuinness & Parlagreco, was on brief for appellant.               _______________________               Margaret  D.  McGaughey, Assistant  United  States Attorney,               _______________________          with whom Jay P. McCloskey,  United States Attorney, was on brief                    ________________          for appellee.                                 ____________________                                   November 2, 1993                                 ____________________                    TORRUELLA, Circuit  Judge.  Appellant Michael Nason was                               ______________          charged with conspiracy  to distribute marijuana in  violation of          21  U.S.C.     841(a)(1) &  846  and possession  of marijuana  in          violation  of 21  U.S.C.    844(a).   Following  a  trial in  the          district  court, the  jury found  him guilty  as charged.   Nason          requests that this  court reverse his  conviction and remand  his          case for  a new  trial.  On  appeal, Nason  argues that:  (1) the          trial  court erred  in denying  his motion  for severance  of his          trial pursuant to Federal Rule of Criminal Procedure 14; (2) this          error deprived him  of the ability to  confront and cross-examine          his codefendants in violation of his Sixth Amendment  rights; (3)          the trial court's  instructions regarding conspiracy  constituted          reversible  error;  (4)  the  trial  court  erred  regarding  the          admission  of  certain   pieces  of  evidence  seized;   (5)  the          cumulative  effect   of  the  trial  court's  errors  constituted          prejudicial error depriving him of  due process and a fair trial;          and (6) the pursuit of appellant for the purpose of incriminating          him violated his due process rights.  Finding appellant's  claims          to be without merit, we affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    The government charged  Michael Nason, Ellen  Finch and          David  Finch  with  conspiracy  to  distribute  marijuana.1    In          addition,  the   government  alleged  that  Nason   conspired  to          distribute marijuana with   numerous other  persons who were  not          indicted.      The  Maine   Drug   Enforcement   Agency  ("MDEA")                                        ____________________          1  The jury acquitted Ellen and David Finch of these charges.                                         -2-          investigation that lead to Nason's conviction focused on Room 332          of the Scottish Inn Motel in Bangor, Maine.                    Between  May  23   and  May  29,  1992,  Room  332  was          registered   to   Nason's  girlfriend,   Merry  Lane.     Shortly          thereafter, a desk clerk  added Nason's name to the  registration          card so that  his calls  could be  directed to the  room.   Nason          subsequently  received telephone calls  in Room 332  and supplies          were delivered  by  the motel  maid to  him in  Room  332.   Many          individuals  visited Room  332,  staying  for  only five  to  ten          minutes, and a black Cadillac was  observed in front of the room.          The police were notified of this suspicious behavior.                    When officers reviewed  the motel's telephone  records,          they  found that  the  occupants  of Room  332  were calling  the          telephone numbers of known  drug dealers.  Officers then  decided          to establish surveillance of the motel room and Nason.  As a part          of the investigation,  the government enlisted the  assistance of          drug trafficker Gabriel Zappia in  exchange for a plea agreement.          Zappia asked  his friend,  Gilbert  Shubert, to  arrange for  the          purchase  of marijuana  from  Nason.   In  response to  Shubert's          request, Nason  contacted  a  supplier  in order  to  obtain  the          marijuana.                    Nason arranged to sell Zappia the marijuana  on May 27,          1992.  Nason, Shubert and Zappia went to pick up the marijuana in          Zappia's car.   Because Nason suspected police  surveillance, and          Zappia feared that  the police would not observe  the transaction          as previously  planned, the two  postponed the sale.   During the                                         -3-          interim, Shubert began to cooperate with the police.                    Shubert and  Nason met at the  Ramada Inn on May  28 to          complete the  drug transaction.   Nason told Shubert that  he had          "the dope"  and that he would call his supplier who would deliver          it.  Nason said that if he had not been serious he would not have          brought  along white  garbage bags.    As they  were leaving  the          Ramada Inn, the  two men were arrested.   At the time  of arrest,          Nason possessed two  white garbage bags, a  package of marijuana,          and $980 in cash.                    Nason  had  arrived  at  the  Ramada  Inn  in  a  black          Cadillac.  After  he got out of  the Cadillac, the driver  of the          car drove  to the Howard  Johnson's nearby and parked  facing the          Ramada Inn.   When Nason  was arrested,  the driver of  the black          Cadillac attempted to back out of the motel and ran into a police          car.  David  and Ellen  Finch were  in the Cadillac.   Both  were          arrested.                    Nason had been at Room 332  on May 26 and again on  May          28,  shortly before his arrest.  Inside  the room, police found a          suitcase containing  a duffel  bag with  marijuana residue  and a          photo album with  Nason's name on it.   Other items found  in the          room included  scales, two  sandwich  bags containing  marijuana,          empty  sandwich  bags,  a  programmable  police  scanner,  and  a          cardboard  box with  Nason's  name on  it  containing papers  and          photographs.                            DENIAL OF MOTION FOR SEVERANCE                            DENIAL OF MOTION FOR SEVERANCE                            ______________________________                    The decision to order severance  of a trial pursuant to                                         -4-          Federal  Rule of  Criminal Procedure  14 is  a matter  within the          discretion of  the trial court.   United States v.  Sabatino, 943                                            _____________     ________          F.2d  94, 96 (1st Cir. 1991).  We  reverse the decision to deny a          motion  for severance only  upon a  showing of  strong prejudice,          demonstrating  a manifest abuse  of discretion that  deprived the          defendant of a fair trial.  United States v. Argencourt, 996 F.2d                                      _____________    __________          1300, 1304 (1st Cir. 1993).                    Pursuant to  Federal Rule  of Criminal Procedure  8(b),          defendants may  be tried  together "if they  are alleged  to have          participated in the same act or transaction or in the same series          of  acts or transactions,  constituting an offense  or offenses."          See   Sabatino,  943  F.2d  at   96  (quoting  United  States  v.          ___   ________                                 ______________          Sutherland, 929 F.2d 765, 778  (1st Cir. 1991), cert. denied, 116          __________                                      ____________          L.Ed.2d 56  (1991)).  In this case,  Nason, David Finch and Ellen          Finch  were  alleged  to  have  participated  in  the  same  acts          constituting the offenses,  hence, they were properly  joined for          trial.   Where  a defendant  requests a  severance to  secure the          testimony of a codefendant, he must comply with the  requirements          set forth  in United States v. Drougas, 748  F.2d 8, 19 (1st Cir.                        _____________    _______          1984):                      the movant must  demonstrate: (1) a  bona                      fide need  for  the  testimony;  (2)  the                      substance  of  the   testimony;  (3)  its                      exculpatory  nature and  effect; and  (4)                      that  the   co-defendant  will   in  fact                      testify if the cases are severed . . . .                        Given such a showing, the court  should                      (1)  examine  the   significance  of  the                      testimony in relation  to the defendant's                      theory of  defense; (2)  consider whether                      the   testimony  would   be  subject   to                                         -5-                      substantial  damaging   impeachment;  (3)                      assess the counter  arguments of judicial                      economy;  and  (4)  give  weight  to  the                      timeliness of the motion.          Id. at 19; see  also United States v. Font-Ram rez,  944 F.2d 42,          ___        _________ _____________    ____________          45 (1st Cir. 1991), cert. denied, 117 L.Ed.2d 122 (1992).                              ____________                    Nason alleged  that his co-defendants, Ellen  and David          Finch,  would testify  that  there was  no  conspiracy among  the          three.     Standing  alone,   however,  such  an   allegation  is          insufficient to entitle the defendant  to a severance.  Nason did          not show, as  required, that either David or Ellen Finch would in          fact testify for Nason at  a separate trial.  He did  not file an          affidavit  from  either David  or  Ellen  to  that effect.    See                                                                        ___          Drougas,  748 F.2d at 19; see also  Font-Ram rez, 944 F.2d at 45.          _______                   ________  ____________          Nor did  counsel for  the Finchs represent  that either  David or          Ellen Finch  would testify for  Nason at a  separate trial.   See                                                                        ___          DeLuna,  763 F.2d  at  920 (counsel  for co-defendant  stating in          ______                                                         __          camera that  client  would  testify if  trials  were  severed  is          ______          sufficient to  show  that co-defendant  is likely  to testify).            Furthermore, Nason did  not show, as required,   that the Finchs'          testimony would exculpate  him.   United States  v. Perkins,  926                                            _____________     _______          F.2d 1271, 1281 (1st Cir.  1991) (citing United States v. DeLuna,                                                   _____________    ______          763 F.2d 897,  920 (8th Cir.  1985), cert.  denied, 474 U.S.  980                                               _____________          (1985)); see also Font-Ram rez, 944  F.2d at 45 (denial of motion                   ________ ____________          for severance was not an abuse of discretion where co-defendant's          affidavit in support of the  motion did not provide the substance          of  the testimony  and  did  not explain  why  the testimony  was          necessary   or  beneficial  to   the  defense).     The  evidence                                         -6-          demonstrated that Nason  conspired with a number  of people other          than  David  and  Ellen  Finch.    Other  potential  conspirators          included  Shubert,  Merry  Lane,  and  the  supplier  whom  Nason          contacted.   Thus,  even without  a finding  of a  conspiratorial          agreement with  the Finchs,  the government  still  had a  strong          conspiracy case against Nason.   This conclusion is  evident from          the outcome of the  joint trial, as the jury acquitted both Ellen          and David Finch yet convicted Nason of conspiracy.                    Since Nason did  not make the preliminary  showing that          encompasses the first four factors  of the severance test set out          in Drougas, we  need not examine whether the  other criteria were             _______          met.  We  therefore hold that the  judge below did not  abuse his          discretion in denying Nason's motion for severance.                             SUFFICIENCY OF THE EVIDENCE                             SUFFICIENCY OF THE EVIDENCE                             ___________________________                    On appeal,  we look at  the evidence in the  light most          favorable to  the prosecution.   United States  v. Sabatino,  943                                           _____________     ________          F.2d at 97 (citing  United  States v. MacDonald & Watson Oil Co.,                              ______________    __________________________          933  F.2d  35, 40  (1st   Cir.  1991)).   We draw  all legitimate          inferences and resolve all credibility  conflicts in favor of the          prosecution.  Id.   We will uphold the verdict  if any reasonable                        ___          trier of fact could have found the elements of the offense beyond          a reasonable doubt.  Id. (citing United States v.  Mena, 933 F.2d                               ___         _____________     ____          19, 23 (1st Cir. 1991)).                    Nason   argues  that  the  trial  court  erred  in  not          dismissing  the  charges   against  him  at  the  close   of  the          government's case due  to insufficient evidence.   In essence, he                                         -7-          argues  that the  evidence of  conspiracy  is inadequate  because          there was  no second  person who conspired  with Nason  to either          distribute or  possess marijuana.   The  record does not  support          this argument.                    A defendant can be  indicted and convicted even if  the          names  of  his  co-conspirators  are  unknown,  as  long  as  the          government  presents evidence of an agreement between two or more          persons.    United States v. Rey,  923 F.2d 1217, 1222  (6th Cir.                      _____________    ___          1991); see  also United  States v.  Pe agar cano-Soler, 911  F.2d                 _________ ______________     __________________          833, 840 n.5 (1st Cir. 1990).  The essence of a conspiracy is the          existence of the conspiracy agreement, not the identity  of those          who agree.  Rey, 923 F.2d at 1222 (citations omitted).                      ___                    At trial, sufficient evidence was presented from  which          a jury could  conclude that a conspiracy existed.   Testimony was          given about other persons with whom the jury could have concluded          that Nason entered an agreement to violate the law. These include          Nason's girlfriend, Merry Lane, who  rented the room that was the          focus  of  the  drug  activity  and in  which  the  agents  found          marijuana;  Shubert, a potential drug purchaser who later decided          to cooperate  with the police;  and Nason's  drug supplier,  whom          Nason telephoned to arrange the  drug transaction.  The jury also          could have found that the  unknown occupants of several cars, who          entered  Room 332,  were co-conspirators.   See United  States v.                                                      ___ ______________          Moree, 897 F.2d 1329, 1332 (5th Cir. 1990) (evidence of agreement          _____          with  unnamed contacts, among others, was sufficient evidence for          conspiracy conviction as government produced sufficient  evidence                                         -8-          to form a rational basis for the jury's adjudications).                                SIXTH AMENDMENT CLAIMS                                SIXTH AMENDMENT CLAIMS                                ______________________                    Nason argues that testimony  by government agent Antone          based  on his interview  of codefendant Ellen  Finch violated his          right  of cross-examination and Sixth Amendment right to confront          witnesses against him because Nason  was not able to confront and          cross-examine Ellen Finch.  U.S. Const. amend. VI.                    Agent Antone's testimony concerned a note,  purportedly          written by Nason, that  was found in the Finchs' car  at the time          of  the  arrests.   Nason  failed  to  object when  Agent  Antone          testified  about the note.  In  the absence of a timely objection          our review  is limited to  examining the record for  plain error,          and we will  "correct only 'particularly egregious errors'  . . .          that  'seriously  affect   the  fairness,  integrity   or  public          reputation  of judicial proceedings.'"   United States  v. Young,                                                   _____________     _____          470  U.S. 1,  15, 105  S.  Ct. 1038,  1046, 84  L.Ed.2d  1 (1985)          (quoting United States v.  Frady, 456 U.S.  152, 163, 102 S.  Ct.                   _____________     _____          1584, 1592, 71 L.Ed.2d 816  (1982)); United States v. Munson, 819                                               _____________    ______          F.2d 337, 340 (1st Cir. 1987).                    Agent Antone's testimony  was based on his  post arrest          interview of Ellen Finch during which she indicated that when she          and her  husband drove Nason to the Ramada  Inn, she gave Nason a          piece of paper  and a pen.   She gave Nason a second  pen because          the first one did  not work.  She did not see  Nason write on the          paper.  When questioned about a piece of paper found in  her car,          she indicated that the writing on the paper was not hers and that                                         -9-          she did not know whose it was.                      There  was no  confrontation clause  violation.   Ellen          Finch's  statements to Agent Antone  did not have the "powerfully          incriminating  effect  of  one  accomplice  pointing  the  finger          directly  at  another,  without  subjecting  [her]self to  cross-          examination,"  amounting to  a violation of the  Sixth Amendment.          United  States v.  Barnett, 989  F.2d 546,  558 (1st  Cir. 1993),          ______________     _______          cert. denied, 62  U.S.L.W. 33247 (1993) (internal  quotations and          ____________          citations omitted);   see also Bruton v. United  States, 391 U.S.                                ________ ______    ______________          123, 135  (1968).  Hence, we find no  plain error in admission of          the testimony by  Agent Antone regarding the note  found in Ellen          Finch's car.                    Nason further  argues that the  introduction, over  his          objection, of  testimony of MDEA agent Daryl Crandale, that Ellen          Finch had told him  that she knew Nason had been  in trouble with          drugs before, also  deprived him of his Sixth  Amendment right to          confrontation.  We find this argument to be without merit.                    Following the testimony of Agent Crandale, the district          court  promptly gave  a limiting  instruction  that confined  the          jury's  consideration of that evidence to  Ellen Finch's state of          mind.     This  court  has  previously  indicated  that  limiting          instructions  provide an  adequate safeguard  against evidentiary          spill-over.   United States v. Doherty, 867 F.2d 47, 63 (1st Cir.                        _____________    _______          1989), cert. denied,  412 U.S.  918 (1989)  (citing Drougas,  748                 ____________                                 _______          F.2d  at  13).   In  any event,  any  error in  admitting Ellen's          statement was  harmless.  See  Manocchio v. Moran, 919  F.2d 770,                                    ___  _________    _____                                         -10-          783-84  (1st Cir.  1990),  cert. denied,  114  L.Ed.2d 89  (1991)                                     ____________          (subjecting material which creates Sixth Amendment  Confrontation          Clause  problems to harmless error  analysis).  Other evidence in          the  record included recorded conversations between Nason and the          undercover informant in which Nason boasts about his twenty years          of drug  dealings and  freedom from arrests.   This  evidence was          substantially more damaging to Nason than was Ellen's comment.                                  JURY INSTRUCTIONS                                  JURY INSTRUCTIONS                                  _________________                    By failing to object to the jury instructions after the          charge was given,  Nason waived any such objections.   Wartski v.                                                                 _______          Bedford,  926 F.2d 11, 22 (1st  Cir. 1991).  Although Nason filed          _______          requests to charge before trial began and noted objections at the          chambers conference  regarding the court's  proposed instruction,          he did not object to the instructions after the charge was given.          An objection noted in chambers before  delivery does not preserve          for  review issues  relating to  the  charge.   United States  v.                                                          _____________          Edilberto,  950 F.2d  1, 4 (1st  Cir. 1991).   Where a  party has          _________          failed to preserve  a claim for error by  proper objection below,          this court will review the issue on appeal  only for plain error.          United States  v. McMahon, 938  F.2d 1501, 1510 (1st  Cir. 1991).          _____________     _______          Thus, reversal will  follow only in "exceptional cases  or  under          peculiar  circumstances  to  prevent   a  clear  miscarriage   of          justice."  United States v.  Griffin, 818 F.2d 97, 100  (1st Cir.                     _____________     _______          1987), cert. denied, 484 U.S. 844 (1987) (quotation omitted).                 ____________                    This  court  has  held  that  the  failure  to  give  a          requested  jury instruction  is  reversible  error  only  if  the                                         -11-          requested   instruction  is   substantially   correct,  was   not          substantially covered in the charge actually given, and covers an          important point  in the  trial  so that  the failure  to give  it          seriously impaired  the defendant's  ability to  present a  given          defense.  United  States v. Newton, 891  F.2d 944, 949 (1st  Cir.                    ______________    ______          1989).  In describing the  elements of a conspiracy, the district          court told the jury:                      you must be convinced that the government                      has proved  .  . .  beyond  a  reasonable                      doubt  .   .  .   the  existence   of  an                      agreement.  The government must show that                      some time  between May 21, 1992,  and May                      28, 1992, the agreement  specified in the                      indictment, and not  some other agreement                      or agreements,  existed between  at least                      two  people,  not   including  government                      agents, to commit  the enumerated federal                      crime.  This does not have to be a formal                      agreement or plan  in which everyone  who                      is involved sat down together and  worked                      out the details.   It is enough  that the                      government  prove  beyond   a  reasonable                      doubt that  there was a  common agreement                      among those  who were involved  to commit                      the crime of distributing marijuana . . .                      .                        It is not  necessary to  find that  the                      individual defendants agreed specifically                      to or knew  about all the details  of the                      crime, but the government must prove that                      the   defendants   knew   the   essential                      features  and  the  general aims  of  the                      venture . . . .                        [T]he government must prove . . . there                      was  an agreement to commit the crime . .                      .  and that  the defendant  intentionally                      joined in that agreement.                    The  court's  instructions  substantially  covered  the                                         -12-          legal  concepts requested by Nason in his proposed instructions.2          Having covered the necessary and requested principles of law, the          district court did not err.                    Nason also requested an instruction  on withdrawal from          a conspiracy.3   A defendant  is entitled to instructions  on his          theory of  defense if  he produces some  evidence to  support all                                        ____________________          2  Nason's first two proposed instructions were as follows:                      #1. As  it takes  two to  conspire, there                      can be  no conspiracy  with a  government                      informer   who   secretly    intends   to                      frustrate the conspiracy.   United States                                                  _____________                      v.  Debright,  742 F.2d  1196,  1198-1200                          ________                      (9th Cir. 1984).                      #2.  Any conspiracy  "agreement" must  be                      complete.  There  must exist proof beyond                      a reasonable doubt  that there existed  a                      "meeting  of   the  minds"   between  the                      defendant and an  alleged co-conspirator.                      The   jury   must  consider   whether   a                      Defendant's    insistence   on    certain                      conditions    precedent,   where    those                      conditions are unacceptable to his would-                      be co-conspirators, prevented  a "meeting                      of  the   minds"  so  that   no  complete                      agreement  existed.    United  States  v.                                             ______________                      Melchor-L pez,  627  F.2d 886  (9th  Cir.                      _____________                      1980).          3  Nason proposed the following instruction:                      #3. An  alleged conspirator  may withdraw                      from  membership  in   the  conspiracy.                        There  must   exist  evidence   that  the                      Defendant  abandoned,  withdrew  from, or                      disavowed the conspiracy  or defeated its                      purpose.  Once evidence of withdrawal has                      been  presented,   the  government   must                      disprove withdrawal  beyond a  reasonable                      doubt.  Hyde  v. United States, 225  U.S.                              ____     _____________                      347 (1912); United  States v. Krasn,  614                                  ______________    _____                      F.2d 1229 (9th Cir. 1980); United  States                                                 ______________                      v. Read, 658 F.2d 1225 (7th Cir. 1981).                         ____                                         -13-          elements of his  theory.  See United States v. Panet-Collazo, 960                                    ___ _____________    _____________          F.2d   256, 259 (1st  Cir. 1992),  cert. denied, 121  L.Ed.2d 158                                             ____________          (1992).  In order to withdraw, a conspirator must:                      act  affirmatively  either to  defeat  or                      disavow the  purposes of  the conspiracy.                      Typically, there must  be evidence either                      of a full confession  to authorities or a                      communication by the  accused to his  co-                      conspirators  that he  has abandoned  the                      enterprise and its goals.          United States  v. Juodakis, 834  F.2d 1099, 1102 (1st  Cir. 1987)          _____________     ________          (citations omitted).  This court has held that "[m]ere  cessation          of activity in furtherance of  [a] conspiracy does not constitute          withdrawal."   Juodakis, 834  F.2d at  1102 (citations  omitted).                         ________          Nason's refusal to agree to Shubert's proposed terms of the sale,          after which he got up and left the Ramada Inn, is  not sufficient          evidence of withdrawal to require an instruction on that defense.          Thus,  we find  that the  trial court's  refusal to  give Nason's          proposed  instruction  on  withdrawal did  not  constitute  plain          error.                                  EVIDENTIARY ISSUES                                  EVIDENTIARY ISSUES                                  __________________                    Appellant   argues  that  the   trial  court  erred  in          admitting into evidence items such as scales, bags,  and baggies,          seized from Room 332 of the Scottish Inn, which was registered to          his girlfriend, Merry Lane.  He argues that there was no evidence          that  he  occupied  Room  332  and  that  the  evidence  was  not          sufficiently linked to  Nason to make its  admission permissible.          In essence, he  argues that the admission into  evidence of items          seized from  Room 332 was  irrelevant, highly prejudicial  and in                                         -14-          violation of Rule 403 of the Rules of Evidence.                    The threshold for  relevance is very low  under Federal          Rule of  Evidence 401.   United  States v. Rodr guez-Cort s,  949                                   ______________    ________________          F.2d 532, 542 (1st Cir. 1991).   Evidence is relevant  under Rule          401 if  it has "any  tendency to make  the existence of  any fact          that is  of consequence to  the determination of the  action more          probable or less probable than it would be without the evidence."          Fed.  R. Evid. 401.   Even where  evidence is  relevant, Rule 403          permits  the  district  court,  in  its  discretion,  to  exclude          evidence where  the "probative value is  substantially outweighed          by the  danger of unfair  prejudice."  Fed.  R. Evid. 403,4   see                                                                        ___          also  United States  v. Williams,  985  F.2d 634,  637 (1st  Cir.          ____  _____________     ________          1993); United States v. Gonz lez-S nchez, 825 F.2d  572, 580 (1st                 _____________    ________________          Cir. 1987), cert.  denied, 484 U.S.  989 (1987).   We review  the                      _____________          district   court's  weighing  of   the  evidence  for   abuse  of          discretion.   United States  v. Walters, 904  F.2d 765,  768 (1st                        _____________     _______          Cir. 1990); Gonz lez-S nchez, 825 F.2d at 580.                      ________________                    Although Room 332  was registered to Merry  Lane, Nason          was  strongly connected to  it.   Nason's name  was noted  on the          registration card to the motel  room so that incoming calls could                                        ____________________          4  Fed. R. Evid. 403 states:                      Although   relevant,   evidence   may  be                      excluded  if   its  probative   value  is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion   of  the                      issues,  or misleading  the  jury, or  by                      considerations of  undue delay,  waste of                      time,   or   needless   presentation   of                      cumulative evidence.                                         -15-          be directed to him.   In fact, a number of people called Nason at          the motel room.  Nason  gave Shubert the motel's telephone number          as a place to reach him and Shubert called Nason at  the motel to          discuss Nason's interest in reviving the deal.  Nason was seen at          Room 332 by the maid, two custodians, the owner of the motel, and          the  police officers who  photographed him.   Furthermore, inside          the room,  inside  a suitcase,  beside  a duffle  bag  containing          marijuana residue,  was an  album that  contained photographs  of          Nason  and had  Nason's name  written on it.   The  above factors          indicated that Nason had been in  the room with the marijuana and          made the evidence found in the room relevant to his participation          in  a  conspiracy.    The objects  found  in  Room  332 are  also          probative of the conspirators' intent to distribute marijuana and          were not likely to suggest a decision on an improper basis to the          jury.  Although  the evidence may be damaging to Nason's case, it          is  not  unfairly  prejudicial.    See  Rey,  923  F.2d  at  1222                                             ___  ___          (admission  of  electronic  equipment   and  books  not  unfairly          prejudicial in  trial for drug  charge).  The district  court did          not abuse its discretion in admitting that evidence.                                    MISCELLANEOUS                                    MISCELLANEOUS                                    _____________                    Appellant  raises two  further arguments that  were not          raised  before the  district court.   First,  he argues  that, by          targeting him for investigation,  law enforcement agents violated          his due process rights.  This court has previously ruled that:                      arguments not seasonably addressed to the                      trial  court may  not be  raised  for the                      first time in an appellate  venue . . . .                      A criminal  defendant, dissatisfied  with                                         -16-                      the district  court's rulings  . . .  yet                      persuaded  that  his  original  arguments                      lacked merit,  cannot switch  horses mid-                      stream  in hopes  of  locating a  swifter                      steed.          See United  States v.  Deitz, 950  F.2d 50,  55  (1st Cir.  1991)          ___ ______________     _____          (citations omitted).                     Second, appellant  argues that  his sentence,  premised          upon career  offender status,  is invalid and  that the  sentence          should  therefore  be   vacated  and  the  matter   remanded  for          imposition of  sentence.   See United States  v. Price,  990 F.2d                                     ___ _____________     _____          1367 (D.C. Cir. 1993) (career offender guidelines do not apply to          conspiracy  to commit controlled  substance crimes).   Nason made          this second argument  in a letter filed pursuant  to Federal Rule          of Appellate Procedure  28(j).  He did not make  this argument in          his brief, and "a letter  submitted pursuant to Rule 28(j) cannot                                                                     ______          raise a new  issue."  United States  v. LaPierre, 998  F.2d 1460,                                _____________     ________          1466 n.5 (9th  Cir. 1993), amended, 1993   U.S. App. LEXIS  20872                                     _______          (9th Cir. Aug. 19, 1993), (citing Brady v. Gebbie, 859 F.2d 1543,                                            _____    ______          1557 n.13 (9th Cir. 1988)).                    Affirmed.                    ________                                         -17-
