          United States Court of Appeals
                     For the First Circuit


Nos. 00-1422                                         Volume I of II
     00-1457
     00-1534
     00-1560
     00-1561
     00-1628
     01-1150
     01-1873
     01-2248


                         UNITED STATES,
                            Appellee,

                               v.

        MILTON A. NELSON-RODRIGUEZ; LUIS A. ROMERO-LÓPEZ;
      MIGUEL A. RODRIGUEZ-RIVERA; EDUARDO ARROYO-MALDONADO;
          CARLOS BONET-GONZALEZ; ANGEL CHEVERE-GONZALEZ;
 LUIS CARIBE-GARCIA; RAÚL RIVERA-PÉREZ; VICTOR M. VALLE-LASALLE,

                     Defendants, Appellants.


         APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                       Boudin, Chief Judge,
                      Lynch, Circuit Judge,
               and Shadur,* Senior District Judge.




* Of the Northern District of Illinois, sitting by designation.
          Marlene Aponte Cabrera for appellant Nelson-Rodriguez.

          Rafael F. Castro Lang for appellant Romero-López.

          Jose A. Suarez-Santa for appellant Rodriguez-Rivera.

          Raymond   L.   Sanchez   Maceira   for   appellant   Arroyo-
Maldonado.

          Mauricio Hernandez Arroyo for appellant Bonet-Gonzalez.

          Raymond Rivera Esteves for appellant Chevere-Gonzalez.

          Marlene Gerdts for appellant Caribe-Garcia.

          Linda George for appellant Rivera-Pérez.

          Luz M. Rios Rosario for appellant Valle-Lasalle.

          William C. Brown, Attorney, U.S. Department of Justice,
with whom H.S. Garcia, United States Attorney, was on brief for
appellee.


                          February 7, 2003
               LYNCH, Circuit Judge. Thirteen individuals were indicted

on February 5, 1998 for participating in a conspiracy to possess

with       intent   to   distribute   1,000    kilograms    of   cocaine,   five

kilograms of heroin, and 5,000 pounds of marijuana, in violation of

21 U.S.C. § 846 (2000).        This case involves the appeals of nine of

those defendants: Milton Nelson-Rodriguez ("Nelson"), Luis Romero-

López ("Romero"), Miguel Rodriguez-Rivera ("Rodriguez"), Eduardo

Arroyo-Maldonado ("Arroyo"), Carlos Bonet-Gonzalez ("Bonet"), Angel

Chevere-Gonzalez ("Chevere"), Luis Caribe-Garcia ("Caribe"), Raúl

Rivera-Pérez ("Rivera"), and Victor Valle-Lasalle ("Valle").                 Six

of the defendants -- Nelson, Rodriguez, Arroyo, Bonet, Chevere and

Caribe -- were convicted at a trial in September 1999.1              Rivera and

Valle were convicted at a second trial in September 2000.                  Romero

pled guilty before trial.

               This case raises a large number of issues; the more

important ones include:

(1)    whether the authorization for a wiretap was invalid when the

government          withheld   certain        information    going    to      the

trustworthiness of a relied-upon confidential informant in the

affidavit used to apply for a wiretap order;


       1
        There were also two other defendants at the September 1999
trial who are not parties to this appeal, Julio Ortiz Guevara
("Ortiz") and Luis Diaz (whom we will refer to as "Luis Diaz" to
distinguish him from a confidential informant named Jose Diaz).
The jury was unable to reach a verdict with respect to Ortiz; he
subsequently entered a guilty plea and has not appealed. Luis Diaz
was found guilty and has not appealed his conviction.

                                       -3-
(2)   whether a jury determination as to drug quantity and type for

the entire underlying conspiracy is adequate for Apprendi purposes,

and when an Apprendi claim must be raised to be preserved;

(3)    the meaning of "special skill" in U.S.S.G. § 3B1.3, which

authorizes a two-level increase in sentence if the defendant "used

a special skill, in a manner that significantly facilitated the

commission or concealment of the offense";

(4)   a claim that the government failed to move for a substantial

assistance   reduction   of   sentence   under   U.S.S.G.   §   5K1.1   as

retaliation against a cooperating defendant for telling the truth;

(5)    the existence of constraints, if any, on the ability of a

district judge to impose a term of supervised release in cases

under §§ 841 and 846 that is in excess of the term contemplated by

U.S.S.G. § 5D1.2;

(6)   a claim of deprivation of a right to speedy trial arising out

of a 14-month period between conviction and sentencing;

(7)    a claim of improper ex parte contact between a probation

officer and the prosecution after the initial presentence report

but before the filing of an amended report which supported a new

sentence enhancement;

(8)   on the review of a denial for a motion for new trial, a claim

that defense counsel had a potential conflict of interest because

he    simultaneously   represented   another     conspirator,   who     was




                                  -4-
previously acquitted but then had pled guilty, in sentencing issues

resulting from a plea agreement.

             Save for one aspect of a claim by Rodriguez concerning

his term of supervised release, we reject all of the claims raised

by defendants.       The length of the opinion is mandated by the fact

that   it    is   the    equivalent       of   nine   opinions      as   to   the   nine

defendants.

                                           I.

             With challenges to the sufficiency of the evidence, we

recite the facts in the light most favorable to the jury's guilty

verdicts.     See United States v. Bayes, 210 F.3d 64, 65-66 (1st Cir.

2000).      As to other issues, we objectively view the evidence of

record.      See United States v. Piper, 298 F.3d 47, 50 (1st Cir.

2002).

A.   The Investigation

             An FBI investigation of the conspiracy, led by FBI

Special Agent Michael Plichta, began when Jorge Hernandez-Miller

("Hernandez") agreed to infiltrate a drug trafficking organization

run by      Rivera   and   serve     as    a    confidential     informant     ("CI").

Hernandez had been convicted in a 1993 drug importation case known

as the "Al Capone" case and served 36 months in jail, a reduced

sentence because he had cooperated with the government in that case

as well.      In 1997, two years after Hernandez was released from

prison,     he    told   the   FBI    that       he   wanted   to    help     apprehend


                                           -5-
individuals from the Al Capone case who were still at large.

Hernandez said he wanted to cooperate with the government because

he feared for the safety of himself and his family; some of the Al

Capone individuals still at large, he claimed, broke into his house

while he was in prison.           Under his agreement with       the FBI,

Hernandez was to receive twenty-five percent of the forfeitures

made as a result of his cooperation.      By September 7, 1999, he had

received $21,000.

          In the course of their interactions, Hernandez heard

Rivera mention names of coconspirators, including Caribe and Bonet,

who knew that Hernandez had cooperated with the government in the

Al Capone case.     Hernandez, fearing that these conspirators could

have exposed him as an informant, introduced another CI, Jose Diaz,

as his employee.    He hoped to have Diaz attend any meetings where

the people in attendance might recognize Hernandez from his time as

a drug trafficker.

          Hernandez and Diaz were the government's main witnesses

at both of the trials.     A third principal government witness, Luis

Torres Orosco ("Torres"), was a charged defendant who pled guilty

and testified     about   his   involvement   in   the   conspiracy.   The

government also played numerous audiotapes of conversations in

which the defendants discussed their drug trafficking activity.

The FBI investigators had obtained tapes both from consensual




                                    -6-
recordings made by the CIS and from a wiretap on a cellular phone

that Hernandez sold to Rivera.

B.   The Conspirators

            The defendants were part of a drug operation led by

Rivera that imported drugs from Colombia to sell in Puerto Rico and

New York.    According to the indictment, the conspiracy began "no

later than in or about April 1997" and continued until November

1997, when arrests in the case began.         The evidence at the two

trials showed, inter alia, four planned importations of cocaine

from Colombia (only one of which was successful), one planned

importation of heroin from St. Maarten, and one planned importation

of more than 4,000 pounds of marijuana.

            Each defendant had a different role in the conspiracy.

Rivera was the leader and Arroyo was his lieutenant. They arranged

for the boat, navigational charts, and radios necessary to import

the drugs. When Arroyo became too greedy, Rivera replaced him with

Valle.

            Bonet was to captain Rivera's receiving boat, which would

take the drugs to Puerto Rico in at least one of the early

shipments.    On the fourth planned importation, Ortiz was to serve

in   this   role.   Torres   was   the   coordinator   of   certain   drug

shipments.    Caribe oversaw security at the drop-off point on shore

and, through his brother-in-law, Mark Figueroa-Jarvis ("Figueroa"),

helped arrange for the distribution of the drugs in New York.


                                   -7-
Nelson was involved in distribution of the imported drugs, and was

also captured on audiotape discussing with Rivera plans to import

between 6,000 and 10,000 pounds of marijuana.              Rodriguez took the

cocaine from Puerto Rico to New York, where he sold it to Figueroa.

            CI Hernandez, meanwhile, worked with the Colombians to

get the drugs to Puerto Rico, and also traveled to St. Maarten on

Rivera's behalf to negotiate the heroin importation.                 CI Diaz

participated in various activities of the conspiracy, including

trips to Colombia and St. Maarten.          Hernandez also introduced an

undercover agent of the U.S. Customs Service, Agent Victor Rosa, as

the captain of a boat that was to bring cocaine from Colombia to a

rendezvous with Rivera's boat.

C.   The Drug Importation Plans

            1.   Planned Importation of 1,100 Kilograms of Cocaine

            CI Hernandez testified about a planned importation of

1,100    kilograms    of   cocaine   in    early   1997.       Hernandez   had

connections in Colombia through Humberto Arduandua, a Colombian

drug trafficker with whom Hernandez had been imprisoned. Arduandua

put Hernandez in contact with Rivera in the spring of 1997; he told

Rivera   that    Hernandez   could    be   an   intermediary     between   the

Colombian    drug     suppliers      and   Rivera's     drug     distribution

organization     to    facilitate     cocaine      importation.       As    an

intermediary, Hernandez was responsible for examining the boats and




                                     -8-
equipment     used   to   transport    the   drugs   from   Colombia      and   the

delivery site for the drugs in Puerto Rico.

             Hernandez called Rivera on April 25, 1997, and the two

set up a meeting later that night.            This call, like many between

the CIS and members of Rivera's organization, was recorded by the

FBI.    Hernandez met Rivera and Arroyo, whom Rivera introduced as

one    of   his   employees,   at   the   Condado    Hotel,   and   they    began

negotiating a contract to import 1,100 kilograms of cocaine from

Colombia.     Hernandez and Rivera agreed to the basic details of the

transaction:       Hernandez   would      arrange    for    the   drugs    to    be

transported from Colombia to a location approximately 35 miles off

the northern coast of Puerto Rico, where Rivera's organization

would pick up the drugs in their own boat and bring the drugs into

Puerto Rico.       Rivera told Hernandez that he wanted 25 percent of

the load from the Colombians as payment and that half of the

remaining load would be sold in Puerto Rico while the other half

would be shipped to New York.

             Two days later, Hernandez met Rivera and Arroyo to

inspect the shore area where the load would be delivered.                       They

showed him the elevated area from which Rivera's employees would

watch the delivery.        Rivera also told Hernandez that Arroyo had a

friend who owned a car rental business where the drugs would be

stored.




                                       -9-
          At their next meeting, on May 3, 1997, Hernandez met

Rivera and Arroyo at a Travelodge hotel and introduced them to

Rosa, the undercover agent posing as one of Hernandez's employees.

The FBI videotaped this meeting with a hidden camera.                 Hernandez

told Rivera that Rosa would captain the boat that would bring the

cocaine load from Colombia to Rivera's boat off the coast of Puerto

Rico. Arroyo brought navigational charts to the meeting, which the

conspirators used to pinpoint the location where Rivera's boat

would pick up the drugs from Rosa.            A few days later, Rivera

provided Hernandez with a two meter radio, which would be used

during the operation.

          In   the   summer   of    1997,   Hernandez    and    his    putative

employee, CI Diaz, traveled to Venezuela and Colombia to finalize

the division of the drugs between the Rivera/Hernandez organization

and the Colombians. Hernandez later spoke to Rivera about how they

should split their share of the cocaine load, and Rivera suggested

that he and Hernandez become partners.

          When   Hernandez    and    Diaz   returned     from   their     trip,

Hernandez learned that Arroyo had been replaced by Valle, another

of Rivera's employees, because Arroyo had asked for one million

dollars as payment for his role in the shipment.                 Rivera told

Hernandez that they would use different equipment and a different

shore area as a result of the replacement and asked Hernandez to

look at both on his next trip to the island.            Hernandez later met


                                    -10-
with Rivera and Valle to inspect the new boat and shore area.    He

also saw the house where Rivera's team would temporarily store the

drugs.   At this meeting, Valle showed Hernandez a police scanner

and told him that they would have "no trouble" because one of his

relatives worked with the local police.    The planned shipment was

never made because several problems arose, including the arrest of

one of the cocaine suppliers in Venezuela.

          2.     Successful Importation of 250 Kilograms of Cocaine

          Torres, the cooperating defendant, testified about a

successful shipment of 250 kilograms of cocaine that occurred on

July 16, 1997.    Torres was the coordinator for this shipment, and

oversaw security and the distribution of the cocaine.    Chevere was

responsible for security when the cocaine load was delivered:    he

had weapons at the delivery site and made sure that the people

delivering the drugs would not attempt to take the drugs back after

they received payment.     After the shipment was delivered, Torres

and Rivera went to a nearby repair shop and divided the cocaine

between them.      Rivera received approximately 50 kilograms, for

which he promised to pay Torres a discounted price amounting to

over $600,000; Torres kept the remaining 200 kilograms.       Rivera

arranged for most of his cocaine to be sent to Figueroa, Caribe's

brother-in-law in New York, because the price of cocaine was higher

in New York.      Figueroa sold the cocaine and sent some of the




                                 -11-
proceeds back to Rivera.     Chevere, Caribe, and Nelson each had a

role in distributing Rivera's share.

          3.   Attempted Importation of 36 Kilograms of Cocaine

          In the summer of 1997, Torres also became involved in the

conspiracy's   planned   importation    of   36   kilograms   of   cocaine.

Torres testified that Rivera introduced him to Nelson.         Rivera and

Nelson had arranged for a 36 kilogram load of cocaine to be sent

from Venezuela to Puerto Rico on a boat.           Nelson's nephew, Luis

Diaz, tied the load to the bottom of a boat that was going to

Puerto Rico.   While the boat was en route, the load was lost.          The

Colombians who had supplied the cocaine kidnapped Luis Diaz and

threatened to kill him unless they were paid for the shipment.

Torres, Rivera, and Nelson discussed ways to gain his release, but

he eventually escaped on his own.

          4.   Planned Importation of Eight Kilograms of Heroin

          On October 12, 1997, Caribe sent the CIS, Hernandez and

Diaz, to St. Maarten to arrange for a shipment of eight kilograms

of heroin into Puerto Rico.     Hernandez and Diaz were responsible

for transporting the heroin to Puerto Rico.          They met with a man

named Francisco and agreed that Rivera's organization would keep

three kilograms of heroin, while the remaining five kilograms would

either be sold or distributed by Rivera with the proceeds going

back to Francisco's organization.




                                 -12-
            5.    Planned Importation of 700 Kilograms of Cocaine

            In July 1997, CI Diaz went to Colombia to arrange for the

importation of more cocaine into Puerto Rico.              Diaz testified that

the Colombians agreed that Hernandez and Diaz's organization could

import 700 kilograms of cocaine into Puerto Rico and, if that

shipment went well, they would be able to import larger shipments

in the future.      On August 16, 1997, Diaz met with Rivera and Caribe

to discuss importing the 700 kilograms.                   During this meeting,

Rivera   and     Caribe   promised   to    show    Diaz    that    they    had   the

equipment,       security,   and   other    prerequisites         to   handle    the

importation of large quantities of cocaine.               Rivera also gave Diaz

a gun to give to Hernandez; Rivera said the gun was "clean" and

could be used.

             On October 29, 1997, Diaz met with Rivera and Bonet.

They looked at the nautical charts showing where the drugs would be

brought into Puerto Rico, and Bonet showed Diaz the radio that

would be used during the operation.               The next day, October 30,

Diaz, Rivera, Caribe, Figueroa, and Bonet met again.                      Bonet and

Caribe conducted a test of a radio that would be used in the

shipment.      The FBI was able to record Bonet's voice during this

test.

             Diaz testified that he and Bonet conversed during their

car trips to and from these meetings.             Bonet assured Diaz that his

team "had been in drug trafficking for many years" and "had the


                                     -13-
necessary equipment, including the boats, communication, security

at the beach and the captains."    Bonet also said that he had been

sought by the FBI in the Al Capone case, but the FBI was unable to

identify him because it did not know his full name.     He said that

someone named Frank Jones had become a "snitch" and that "they were

going to kill him."    "Frank Jones" was Hernandez's previous alias

from his time as a drug trafficker.

            On November 1, 1997, Diaz, Rivera, and Bonet met a third

time.   Caribe introduced Diaz to Ortiz, the boat captain for the

shipment.   Caribe told Ortiz that he would make sure that Ortiz had

a working motor for his boat by the shipment date.    The group made

plans to meet at a future date to view the site selected for

delivery of the load.    There is no evidence that this meeting or

the shipment ever took place, possibly because several defendants

were arrested during early November.

D.   Convictions and Sentences

            Romero pled guilty and was sentenced to 135 months of

imprisonment and 5 years of supervised release.     Juries found the

other eight defendants guilty as charged.      They received varying

sentences, as follows:

            Rivera: Life imprisonment and 5 years supervised release;

            Chevere: 540 months imprisonment and 10 years supervised

release;




                                 -14-
           Caribe: 420 months imprisonment and 8 years supervised

release;

           Valle: 360 months imprisonment and 10 years supervised

release;

           Bonet: 360 months imprisonment and 20 years supervised

release;

           Arroyo: 324 months imprisonment and 20 years supervised

release;

           Nelson: 293 months imprisonment and 10 years supervised

release;

           Rodriguez:   151   months      imprisonment     and   15   years

supervised release.

                                   II.

           On appeal, not all defendants raise every claim.               The

defendants who make each claim are identified in the section

heading.

A.   Sufficiency of the Evidence (Caribe, Rodriguez, Arroyo)

           Caribe, Rodriguez and Arroyo argue that the evidence was

insufficient to establish a conspiracy, or to link each of them to

it individually.    The guilty verdicts stand unless, viewing the

evidence in   the   light   most   favorable   to    the   prosecution,    no

reasonable jury could have rendered them.            See United States v.

Spinney, 65 F.3d 231, 234 (1st Cir. 1995).          That burden is not met

here.


                                   -15-
          There are three basic components to a drug conspiracy:

"[T]he existence of a conspiracy, the defendant's knowledge of the

conspiracy, and the defendant's voluntary participation in the

conspiracy."   United States v. Gomez-Pabon, 911 F.2d 847, 852 (1st

Cir. 1990).    "Mere association" with the conspirators or "mere

presence" during activities of the conspiracy will not, standing

alone, be sufficient for conviction.      Id. at 853.   The statute

under which these defendants were convicted, 21 U.S.C. § 846,

requires no overt act in furtherance of the conspiracy.       United

States v. Shabani, 513 U.S. 10, 15 (1994).         A conspiratorial

agreement may be inferred from circumstantial evidence. See United

States v. Aponte-Suarez, 905 F.2d 483, 490 (1st Cir. 1990).

          Caribe and Arroyo both argue that the existence of a

conspiracy was not proven, because many of the drug importation

plans never came to fruition.   A conspiracy need not succeed for a

conspiracy conviction to stand.    Indeed, the underlying act need

not even be attempted.   See United States v. Martin, 228 F.3d 1, 11

(1st Cir. 2000).    "The gist of a conspiracy is an agreement to

disobey or to disregard the law."      United States v. Palmer, 203

F.3d 55, 63    (1st Cir. 2000).     They also argue that various

negotiations failed to produce a complete "meeting of the minds" on

issues such as the exact location for the handover of the drugs at

sea or the division of the proceeds.    But there was a vast amount

of evidence presented, including testimony from informants and


                                -16-
numerous audiotapes, from which a reasonable jury could easily

determine that an agreement existed among Rivera and his associates

to work together to buy and sell illegal narcotics.

             Each of the three defendants also argues that even if

there were a conspiracy, the evidence was insufficient that he knew

of it and participated in it voluntarily.       A reasonable jury most

certainly could disagree.

             There was evidence of Caribe's knowing involvement in the

conspiracy's plans to import illegal drugs.       For example, CI Diaz

testified that he met with Caribe and Rivera on August 16, 1997 to

make specific plans in connection with the importation of between

700 and 1,000 kilograms of cocaine.         Diaz also testified about

attending a meeting at Caribe's house on October 29, 1997.      Caribe

and others discussed drug smuggling plans, tested radios, and

reviewed nautical charts.        CI Hernandez testified that he had

participated in a test of radio equipment with Caribe (as well as

Rivera and Bonet) and that Rivera had told him that Caribe would

supervise security at the dropoff point on the shore for a planned

importation.

             The evidence as to Rodriguez was that he knowingly

transported Rivera's cocaine from Puerto Rico to New York, where it

was   sold    to   Figueroa,   Caribe's   brother-in-law.    Rodriguez

emphasizes that none of the CIS ever met him directly.      But several

intercepted telephone conversations, including two July 21, 1997


                                  -17-
calls made by Rivera, supported his guilt, directly and indirectly.

In one, Rivera told Figueroa that Rodriguez would be meeting with

him in New York to deliver "shirts" (code for cocaine, according to

an FBI agent who testified).        In another, Rivera called Rodriguez,

then in New York, to coordinate Rodriguez's meeting with Figueroa

and to discuss the price for the cocaine.             A search of Rodriguez's

apartment in Puerto Rico after his arrest found corroborating

evidence such as airplane tickets to New York for the relevant time

period and his cell phone bills.

          Finally,       Arroyo,       who    was   replaced    early    in     the

conspiracy, argues that the government proved only mere presence or

association.    There is no further indication of his participation

after   his    demand    for     one     million     dollars    was     rebuffed.

Nonetheless,    before    that     time,      Arroyo's   involvement      in    the

conspiracy's plans was extensive.             He joined Rivera at the initial

April 25 meeting with Hernandez at the Condado Hotel.                    He also

brought the nautical charts to the May 3 meeting, which the FBI

videotaped;    Arroyo    looked    over       the   charts   with   Agent      Rosa,

supposedly the captain of Hernandez's boats, to fix a location for

their rendezvous.

          Arroyo relies on Aponte-Suarez, 905 F.2d at 491, where

this court vacated a drug conspiracy conviction for insufficient

evidence. The defendant there demanded money from drug traffickers

for the use of his land as an airstrip; when they refused, he


                                       -18-
introduced them to a neighbor and had no further involvement with

the   conspiracy.      Id.     Arroyo,     in   contrast,   was   an   active

participant up until the time his financial demands were refused.

For similar reasons, Arroyo's alternate argument that he withdrew

from the conspiracy is a non-starter.             "[W]ithdrawal is not a

defense to a conspiracy charge if the conspiracy violation has

already occurred." United States v. Rogers, 102 F.3d 641, 644 (1st

Cir. 1996).

           The evidence about the existence of a conspiracy, and the

knowing and voluntary involvement of Caribe, Rodriguez, and Arroyo,

was clearly sufficient for the jury to reach a guilty verdict.

B.    Pre-Trial Claims

           1.   Prosecutorial Misconduct (Bonet)

           Bonet    argues   that   his    conviction   should    be   vacated

because of prosecutorial misconduct before the grand jury.               Bonet

asserts that Agent Plichta was the only witness who testified

against him before the grand jury and that Plichta made two false

statements.     Plichta stated that the search of Bonet's house

revealed a 20/40 radio and an antenna set up on a tree outside the

house.    At trial, Agent Juan Grajales, one of the agents who

conducted the search, testified that the FBI in fact seized a CB

radio and an antenna, which they found in the dining room.               Agent

Plichta admitted at trial that he had been mistaken.             Bonet claims

that no other evidence against him was presented to the grand jury


                                    -19-
and that the prosecutor encouraged Plichta to testify falsely to

bolster the case.

          The Supreme Court in United States v. Mechanik, 475 U.S.

66 (1986), rejected the defendant's claim that his conviction

should be vacated because the prosecutor allegedly violated Fed. R.

Crim. P. 6(d) by permitting two law enforcement agents to be

questioned together before the grand jury. The Court held that any

error   was   harmless    because     the   defendant   was   subsequently

convicted.    In such cases, "the petit jury's subsequent guilty

verdict means not only that there was probable cause to believe

that the defendants were guilty as charged, but also that they are

in fact guilty as charged beyond a reasonable doubt."           Id. at 70.

          Two years later, in Bank of Nova Scotia v. United States,

487 U.S. 250 (1988), the Court carved out a narrow exception to the

Mechanik rule.    This exception applies only if "the structural

protections of the grand jury have been so compromised as to render

the proceedings fundamentally unfair, allowing the presumption of

prejudice."   Id. at 256-57; see also United States v. De Jesus, 230

F.3d 1, 4 (1st Cir. 2000) ("Thus, dismissal after conviction is

appropriate only in cases of serious and blatant prosecutorial

misconduct -- misconduct so grave that it calls into doubt the

fundamental    fairness    of   the    judicial   process.")    (internal

quotations omitted).      The Supreme Court noted that this exception

was consistent with past cases in which the Court had dismissed


                                    -20-
indictments after convictions because it found racial or gender

discrimination in the selection of the grand jury.     Bank of N.S.,

487 U.S. at 256-57 (citing Vasquez v. Hillery, 474 U.S. 254 (1986),

and Ballard v. United States, 329 U.S. 187 (1946)).     However, we

have cautioned that this exception should be "invoked infrequently,

largely as a prophylactic tool to discourage further misconduct of

a like nature."   United States v. Giorgi, 840 F.2d 1022, 1030 (1st

Cir. 1988).

          Bonet faces an additional hurdle: he did not raise his

claim before the district court, and so review is only for plain

error.   A party claiming plain error must demonstrate (1) that

there was error, (2) that it was plain, (3) that it affected the

defendant's substantial rights, usually by altering the outcome,

and (4) that it was sufficiently fundamental to threaten the

"fairness, integrity or public reputation of judicial proceedings."

United States v. Olano, 507 U.S. 725, 732-36 (1993).

          The record does not establish prosecutorial misconduct,

much less misconduct so egregious that it rendered the grand jury

proceedings   fundamentally   unfair.    At   most   there   was   an

understandable mistake in testimony.    The FBI agents involved in

the case had been tracking the defendants for several months and

had gathered innumerable facts about the organization.       CI Diaz

testified at trial that he was present when Bonet tested a 20/40

radio at his house that would be used in the planned importation of


                                -21-
700 kilograms of cocaine.         Bonet also showed him the antenna that

he had placed on a tree outside his house.                       The most likely

explanation for Agent Plichta's misstatements is that he simply

confused the radio and antenna seen by Diaz with those seized by

the FBI.    Given the corroborating evidence for the substance of

Plichta's   account,     if     not   the    exact    details,   his    grand    jury

testimony did not affect the defendant's substantial rights or

seriously impair the fairness, integrity, or public reputation of

the judicial proceedings.

            2.   Bill of Particulars (Nelson)

            Nelson     argues    that       the   district   court     abused    its

discretion by denying his motion for a bill of particulars.                     There

was no abuse of discretion.

            The indictment names Nelson twice.               First, it charges

Nelson with initial involvement in the planned importation of

10,000 pounds     of    marijuana.          Second,   it   charges     that   Rivera

instructed Luis Diaz, Nelson's nephew, to go to Colombia to arrange

for the importation of cocaine into Puerto Rico, and that Rivera

and Nelson made efforts to obtain Luis Diaz's release after he was

kidnapped by Colombian drug suppliers.

            Nelson argues that he was not put on notice of the

government's evidence at trial concerning his involvement in the

attempted importation of 36 kilograms of cocaine that was lost at

sea.   The Colombians kidnapped Luis Diaz to ensure that Nelson


                                        -22-
would pay them for this lost cocaine.            Nelson argues that the

indictment does not refer to cocaine in this context and states

only that he tried to gain his nephew's release, which is not a

criminal act.

          The   indictment    stated     that   the   conspiracy   involved

attempts "[t]o import large amounts of controlled substances into

the District of Puerto Rico," and detailed the dates of the

conspiracy and the names of the coconspirators.            The indictment

specifically charged the defendants with conspiracy with intent to

distribute over 1,000 kilograms of cocaine.           Additionally, Nelson

had access during discovery to recordings of conversations between

him and other conspirators discussing the importation of cocaine.

Nelson did not lack a fair opportunity to prepare a defense absent

a bill of particulars.       See United States v. Sepulveda, 15 F.3d

1161, 1192-93 (1st Cir. 1993).      United States v. Paiva, 892 F.2d

148 (1st Cir. 1989), held that the district court did not abuse its

discretion in denying the motion for a bill of particulars even

though the indictment did not inform the defendant of a number of

transactions he allegedly aided.       Id. at 154.    The court there held

that the indictment referred to "quantities of cocaine" and thus

informed the defendant that the charge involved more than one

transaction.    See id. at 155.

          Nelson does not explain how the indictment's lack of

specificity prejudiced him at trial. A defendant must show "actual


                                  -23-
prejudice" and point to "specific evidence or witnesses that the

lack of particularization prevented him from obtaining."               United

States v. Arboleda, 929 F.2d 858, 869 (1st Cir. 1991); see also

Sepulveda, 15 F.3d at 1193 ("Neither appellant convincingly relates

a concrete instance of inability to prepare, untenable surprise, or

other cognizable prejudice stemming from the trial court's refusal

to mandate further particulars.").         Nelson does not argue that he

was unable to prepare a defense to the allegations, nor does he

point to any evidence that he would have presented.             We reject the

claim.

          3.    Duplicitous Indictment (Nelson, Chevere)

          Nelson    and   Chevere    argue       that   the   indictment     was

duplicitous because it charged the defendants with possessing

several drugs (cocaine, heroin, and marijuana) with intent to

distribute.    Neither defendant raised this claim prior to trial;

the review is for plain error.      There was no error, much less plain

error, on this point.     It has been clear since the Supreme Court's

decision in Braverman v. United States, 317 U.S. 49 (1942), that

"[t]he allegation in a single count of a conspiracy to commit

several crimes is not duplicitous, for the conspiracy is the crime,

and that is one, however diverse its objects."                Id. at 54.     The

conspiracy    charged   here   included    the    planned     importations    of

cocaine, heroin, and marijuana.       Each of these acts was part of a




                                    -24-
single conspiracy, and the jury instructions made clear that the

jury must find as much.

               Nelson also argues that the indictment was duplicitous

because it charged two crimes, possession of drugs with intent to

distribute      and    conspiracy   to    possess     drugs   with    intent    to

distribute, in a single count of the indictment.                   This claim is

rebutted by the plain language of the indictment, which states only

that the defendants conspired to possess controlled substances with

intent    to    distribute.     The      indictment    does   not    charge    the

defendants with possession with intent to distribute, and the jury

did not consider any such charge.

C. Wiretap Evidence (Nelson, Rodriguez, Bonet, Chevere, Caribe,
Rivera, and Valle)

               Defendants argue that evidence obtained from wiretaps

should have been suppressed.2            They also argue that the district

court erred in refusing to hold a hearing in accordance with Franks

v. Delaware, 438 U.S. 154 (1978), before it denied the motion to

suppress the wiretap evidence. Although in other circumstances the

failure   of     the   government's   affidavit       supporting     its   warrant

application to disclose information about the background of a CI




     2
        This issue was the focus of Nelson's original motion for a
new trial, timely filed on November 1, 1999. Because the question
is thus properly before us and we answer it fully, we need not
consider whether some of the other defendants may have waived the
issue.

                                      -25-
could well lead to suppression, we ultimately find neither argument

by defendants in this case to be meritorious.

           1.    Suppression

           Congress has placed statutory requirements on warrants

authorizing wiretaps, extending beyond the constitutional minimum

mandated for other search warrants.            See Omnibus Crime Control and

Safe Streets Act of 1968, Title III, 18 U.S.C. §§ 2510-2522 (2000).

See generally United States v. Lopez, 300 F.3d 46, 51-52 (1st Cir.

2002)   (providing    overview    of     Title    III's    provisions).     Law

enforcement authorities seeking a wiretap warrant must submit a

sworn affidavit which includes "a full and complete statement of

the facts and circumstances" that demonstrate probable cause and a

"full   and     complete    statement     as     to   whether   or   not   other

investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too

dangerous." 18 U.S.C. § 2518(1). A judge considers this affidavit

under   the     standards   of   Title    III     before   issuing    an   order

authorizing the wiretap. These restrictions are intended to ensure

that authorities "make a reasonable, good faith effort to run the

gamut of normal investigative procedure before resorting to means

so intrusive as electronic interception of telephone calls" and

that wiretapping as a law enforcement technique remains "distinctly

the exception -- not the rule."         United States v. Hoffman, 832 F.2d

1299, 1306-07 (1st Cir. 1987).


                                    -26-
            The issuing judge's initial decision to grant a wiretap

order is subject to review in at least two different contexts.

First, the trial judge may consider a motion to suppress the

evidence gathered by the wiretap that the issuing judge authorized;

later, an appellate court may review the trial judge's suppression

ruling.   See United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.

1989). Both of these later reviewing courts use the same metric to

evaluate the action of the issuing judge, which is to examine the

face of the affidavit and "decide if the facts set forth in the

application were minimally adequate to support the determination

that was made."    Id. (quoting United States v. Scibelli, 549 F.2d

222, 226 (1st Cir. 1977)).

            Agent Plichta submitted an affidavit in support of the

application on June 24, 1997.   The government sought permission to

tap a cellular telephone which CI Hernandez had sold to Rivera (on

the pretense that it was a cloned phone that allowed unlimited

calling).   After discussing Plichta's experience and training, the

affidavit chronicled in detail the investigation up to that point,

beginning with the first contact between Hernandez and Rivera on

April 25, 1997.    The affidavit revealed information obtained from

Hernandez's audio recordings of his conversations with defendants

in both telephone calls and face-to-face meetings; the May 3

meeting that was attended by Rosa, the undercover agent, and was

secretly videotaped; visual surveillance; court-authorized pen


                                -27-
registers; and searches of toll records of several telephone

numbers used by Rivera.

           While the incriminating information gathered by these

methods   and      reported   in   the   affidavit   was   substantial,   the

affidavit stated that these methods were unlikely to uncover the

full scope of the conspiracy, even if augmented by other possible

techniques such as executing search warrants or issuing grand jury

subpoenas.        Each technique displayed just a small piece of the

puzzle.   Meanwhile, the conspirators made careful efforts to evade

detection, such as switching telephones and vehicles and using

counter-surveillance.         Finally, searches or grand jury subpoenas

would alert the conspirators that they were under investigation.

             The defendants mainly argue that the affidavit downplayed

both (a) the availability and promise of alternate investigative

techniques and (b) the potential unreliability of Hernandez as a

source.   We consider these claims in turn.

             a.    Necessity of Wiretap

           Defendants argue that progress made in the investigation

using other methods meant that wiretapping was unnecessary.           Title

III requires that the affidavit show why wiretapping is necessary

in place of less intrusive investigative techniques.            18 U.S.C. §

2518(1)(c).        But it does not impose an exhaustion requirement.

Lopez, 300 F.3d at 52.             "Accordingly, the government is not

required to show that other methods have been wholly unsuccessful."


                                     -28-
Ashley, 876 F.2d at 1072.     Rather, "Title III demands a practical,

commonsense approach to exploration of investigatory avenues and

relative intrusiveness." United States v. Uribe, 890 F.2d 554, 556

(1st Cir. 1989).

           An eight-page section of the affidavit explained quite

specifically why the investigative techniques then in use, alone or

combined with others that had not been employed, would likely fail

to uncover the full extent of the conspiracy.             The affidavit's

discussion of alternate methods does not fall below the standard of

minimal adequacy. See United States v. Rivera-Rosario, 300 F.3d 1,

19 (1st Cir. 2002); Uribe, 890 F.2d at 556-57; Ashley, 876 F.2d at

1074-75.

           Nelson   also   argues   that   the   number   of   person-hours

dedicated to the investigation at the time of the warrant -- he

estimates forty-one hours -- was per se too short to demonstrate

the necessity of a wiretap.    There is no rule on the amount of time

investigators must try and fail, using other methods, before

turning to a wiretap application.      See United States v. David, 940

F.2d 722, 729 (1st Cir. 1991).         The issuing judge here had the

relevant information and was able to weigh the amount of prior

investigation among other relevant factors in reaching a decision

on the necessity of the wiretap.




                                    -29-
               b.    Omission of Information About Hernandez's Background

               The defendants also argue that the affidavit relied on

information from CI Hernandez, but failed to disclose his prior

drug       trafficking    conviction,     his   past    involvement      with   some

defendants, and other indicia of his possible unreliability.                    The

affidavit was, to put it mildly, economical on this point, stating

only that there was no indication that Hernandez "has been less

than truthful at any time with regard to this investigation." This

statement was crafted carefully to avoid mention of facts that

would call Hernandez's trustworthiness into serious question.                    We

are concerned that such significant omissions could thwart the

intent of Title III and mislead an issuing judge, who relies on the

government to present the full case for its belief in probable

cause, including any contraindications.3

               The   troubling      omissions   here    have   less    significance

because the affidavit also included large quantities of evidence

from       sources   other   than    Hernandez.        Reliance   on    Hernandez's

credibility was therefore unlikely to have been important to the

issuing judge's decision. We use the technique described in United

States v. Young, 877 F.2d 1099 (1st Cir. 1989) (Breyer, J.), and

reach the same result as in that case.                  "That is to say, if we



       3
        At oral argument it was suggested that the government may
have provided further information about Hernandez to the issuing
judge orally. Even were this so, our review is limited to the four
corners of the affidavit. See Ashley, 876 F.2d at 1074.

                                         -30-
excise      (or   otherwise   appropriately          adjust)    all   misleading

statements from the affidavit, there is still a more than adequate

showing     of    'probable   cause.'         Thus    any    misstatements     are

immaterial."         Id. at 1102 (citations omitted).              Even without

reliance on Hernandez, the affidavit provided the issuing judge

substantial basis for probable cause.                There were over a dozen

recorded conversations, the interactions with undercover agent

Rosa, and the videotape of the May 3 meeting.               On these facts, the

omission of information about Hernandez's background was not a

basis for suppression.

             Other     objections     to   scattered        statements   in    the

affidavit, even if they had any merit in isolation, would similarly

fail because of the large quantity of evidence on which the issuing

judge could rely.

             2.   Franks Evidentiary Hearing

             Some defendants also argue that the case should at least

be remanded for an evidentiary hearing about the alleged flaws in

the affidavit.        A defendant seeking such a hearing must make a

"substantial preliminary showing" that the affidavit included a

false statement which was made either knowingly and intentionally

or   with    reckless     disregard     for   the     truth,    and   that    this

misstatement was necessary to the finding of probable cause.

Franks, 438 U.S. at 155-56, 171-72; see United States v. Adams, 305

F.3d 30, 36 n.1 (1st Cir. 2002) (preliminary showing for Franks


                                      -31-
hearing requires both of these elements).          A material omission in

the affidavit may also qualify for a Franks hearing in place of a

false direct statement, provided the same requisite showing is

made.    United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993).

We review the district court's denial of a Franks hearing for

"clear error."     United States v. Ranney, 298 F.3d 74, 77 (1st Cir.

2002).    The ruling above disposes of this argument because the

defendants fail to make the second required showing -- Hernandez's

necessity to a finding of probable cause.

D.   Other Evidentiary Rulings

            1.   Exclusion of Impeachment Evidence Against Hernandez
                 Caribe and Rivera)

            Caribe   and   Rivera   argue   that   the   court   erroneously

excluded evidence that CI Hernandez had a role in the October 30,

1992 killings of five alleged drug traffickers known as the "Mickey

Motors murders."     Three people were convicted for these murders.

Hernandez, who acknowledged to the government that he was present

during the killings, was not prosecuted.           The judge excluded the

evidence as collateral under Fed. R. Evid. 403.

            Where, as here, the objection was not properly preserved,

we review a district court's decision to admit or exclude evidence

for plain error.     United States v. Scott, 270 F.3d 30, 46 (1st Cir.

2001).    The term "collateral," for Rule 403 purposes, refers to

evidence that is likely to confuse the issues, mislead the jury, or

waste time.      See 1 C.B. Mueller & L.C. Kirkpatrick, Federal

                                    -32-
Evidence § 95, at 512 (2d ed. 1994).           The trial court has wide

discretion in determining admissibility under Rule 403,             United

States v. Abel, 469 U.S. 45, 54-55 (1984), since the trial judge

"is more directly familiar than a court of appeals with the need

for the evidence and its likely effect."       United States v. Lau, 828

F.2d 871, 874 (1st Cir. 1987); see also United States v. Cintolo,

818 F.2d 980, 998 (1st Cir. 1987) (trial judge "has a front row

seat which gives him a unique vantage point").

            The district judge did not abuse his discretion by

excluding the impeachment testimony, which would have had little

probative   value.    The   murders,   which    occurred   in   1992,   were

unrelated to the drug conspiracy here, which covered events in

1997. The government was prepared to offer testimony from multiple

witnesses that Hernandez was not the killer.          Further, the jury

already knew that Hernandez had a history of serious criminal

behavior; indeed, Hernandez himself admitted that he had been a

drug dealer.     Moreover, testimony by several witnesses about

Hernandez's role in the murders might have confused the jury as to

the issue before it.

            Caribe raises two related issues.      First, he argues that

the trial judge violated the Confrontation Clause by denying him

the right to cross-examine Hernandez with respect to his criminal

past.   Second, he argues that the government failed to produce and

concealed reports of debriefings from prior investigations which


                                 -33-
contained allegations that Hernandez was involved in drug dealing

and the Mickey Motors murders.4       According to Caribe, this failure

to produce violated Brady v. Maryland, 373 U.S. 83 (1963), Roviero

v. United States, 353 U.S. 53 (1957), Giglio v. United States, 405

U.S. 150 (1972), and the Jencks Act, 18 U.S.C. § 3500.             None of

these separate doctrines provides grounds for relief unless the

exclusion or failure to produce prejudiced Caribe's defense.            See

United States v. Noone, 913 F.2d 20, 32 (1st Cir. 1990) (alleged

Confrontation Clause violation); Brady, 373 U.S. at 87 (suppressed

evidence must be material); United States v. Bagley, 473 U.S. 667,

682 (1985) (evidence is material for Brady purposes if there is a

"reasonable probability that, had the evidence been disclosed to

the   defense,   the   result   of   the    proceeding   would   have   been

different"); Giglio, 405 U.S. at 154 (requiring the same finding of

materiality of the evidence as Brady); Roviero, 353 U.S. at 64-65;

United States v. Rosario-Peralta, 175 F.3d 48, 53 (1st Cir. 1999)

(Jencks Act).    Since Hernandez's alleged role in the Mickey Motors

murders was a collateral matter, and the defense showed at trial

that Hernandez had an extensive criminal past, Caribe has failed to

show any form of prejudice, and that disposes of his claims.




      4
         Caribe also argues that the reports contained relevant
information on Caribe's "drug quantity [and] role in the offense."
We deal separately with these other issues.

                                     -34-
           2.   Exclusion of Alibi Evidence (Bonet)

           Bonet argues that the district judge erred in excluding

his alibi evidence for October 29, 1997 and October 30, 1997.             The

district court found Bonet provided the requisite notice of alibi

too late in the trial process.         Bonet adequately preserved his

objection.

           Defense counsel was obliged by Fed. R. Crim. P. 12.1(a)

to give the government notice of an intent to offer an alibi

defense within ten days of the government's written demand for such

notice.   There is a continuing duty to disclose if defense counsel

learns of additional alibi witnesses prior to or during the trial.

Id. at 12.1(c).   If a party does not comply, then the testimony of

its alibi (or rebuttal) witnesses may be excluded. Id. at 12.1(e).

In its discretion, the court may grant an exception for good cause

to any of the above requirements.          Id. at 12.1(d).5

           Taylor v. Illinois, 484 U.S. 400 (1988), guides this

court's   application   of   Rule   12.1(d).      See   United   States    v.

Portella, 167 F.3d 687, 705 (1st Cir. 1999) (holding that Taylor

standard is used to review preclusion of an alibi defense). Taylor

requires the court to balance the defendant's right under the Sixth




     5
        A new version of Rule 12.1 took effect on December 1, 2002.
This new version changes the organization of the rule's different
provisions, but does not change the analysis here. We cite to the
new version.

                                    -35-
Amendment to offer the testimony of witnesses in his favor against

"countervailing public interests":

            The integrity of the adversary process, which depends
            both on the presentation of reliable evidence and the
            rejection of unreliable evidence, the interest in the
            fair and efficient administration of justice, and the
            potential prejudice to the truth-determining function of
            the trial process . . . .

484 U.S. at 414-15.   "The judge should also factor into the mix the

nature of the explanation given for the party's failure reasonably

to abide by the discovery request, the willfulness vel non of the

violation, the relative simplicity of compliance, and whether or

not some unfair tactical advantage has been sought."           Chappee v.

Vose, 843 F.2d 25, 29 (1st Cir. 1988).        We review application of

the Taylor factors de novo. United States v. Levy-Cordero, 67 F.3d

1002, 1013 (1st Cir. 1995).

            Bonet concedes that the government filed a request for

alibi notice and served it on Bonet's counsel in February 1998.

Bonet waited approximately one-and-a-half years before filing his

alibi notice, near the end of the first trial, on September 22,

1999.   Applying    Taylor,   the   court   denied   Bonet's   request   as

untimely.

            Bonet argues that he was unaware he might need an alibi

for October 29 and October 30, 1997 until CI Diaz testified for the

prosecution that he met with Bonet on these dates; the defense

contends that before Diaz took the stand on September 14, 1999,

"the government never mentioned these two dates."

                                    -36-
            The government's request for alibi notice referred to

the times the alleged offenses were committed as stated in the

grand     jury     indictment,      which     alleged        that     Bonet       (and

coconspirators) committed two overt acts in furtherance of the

conspiracy "[o]n or about October 30, 1997."                  The "on or about"

language provides adequate notice for both October 29 and October

30.     See United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.

1988) (where the indictment alleged that an offense took place "on

or about" a certain date, the defendant is deemed to be on notice,

for purpose of alibi defense, that the charge is not limited to a

specific date).

            Moreover,    it   is   far   from    clear   that       there   was   any

prejudice.       Even if the indictment had provided adequate notice

only for October 30, an alibi witness for October 29 alone would

have been of little help to Bonet and might well have hurt his

cause.    The meetings on October 29 and October 30 covered the same

ground:    the    participants     reviewed     how   they    would    import      700

kilograms of cocaine into Puerto Rico.                On October 30, the FBI

recorded Bonet's voice as he tested the audio equipment.                      On the

tape, Bonet brags about his drug-dealing exploits.

            Bonet resorts to the good cause prong of the rule,

arguing his delay in filing the alibi notice was not motivated by

a desire to gain a tactical advantage.                 He also complains the

district judge's terse statement of his decision was more akin to


                                      -37-
a finding of fact than the requisite finding of law.             See Levy-

Cordero, 67 F.3d at 1013 (whether to exclude alibi evidence is a

question of law).       Since our review is de novo, the last complaint

is irrelevant.       This court has never restricted the application of

the sanction of exclusion to discovery violations that are willful

or intended to gain a tactical advantage.          Portella, 167 F.3d at

705 n.16; Chappee, 843 F.2d at 29.         The exclusion of the evidence

was not in error.

              3. Admission of Hearsay Statements by Arduandua (Rivera)

              Rivera argues error in the admission of CI Hernandez's

hearsay testimony that Arduandua, the Colombian who had been

incarcerated with Hernandez, said that Rivera was involved in the

drug trade.6       There was no objection.     Review is for plain error,

and   there    was   none.    The   admitted    statement   is   reasonably

understood as being offered, not to prove the truth of the matter

asserted, but to explain why Hernandez contacted Rivera at the

beginning of the investigation.

              4.   Admission of Evidence About Cruz Murder (Rivera)

              Rivera argues error under Rule 403 in the admission of

CI Hernandez's testimony about Rivera's role in the killing of


      6
         Rivera's brief also contends that the court erred by
admitting Hernandez's testimony that a person loosely associated
with Rivera was responsible for a break-in at Hernandez's house.
As the government correctly observes in its brief, Rivera's
objection that Hernandez lacked personal knowledge of that person's
involvement was sustained, and that portion of Hernandez's
testimony was excluded.

                                    -38-
Roberto          Cruz,   a   murder   alleged      to    have   been     committed     in

furtherance of the conspiracy.7

                  The district court did not abuse its discretion in

finding that the testimony was probative.                    It confirmed Rivera's

role in the conspiracy and tended to show that the 250-kilogram

shipment had in fact been delivered.                    Rivera allegedly committed

the murder in concert with a coconspirator and in furtherance of

the conspiracy.          Hernandez testified that Rivera and a subordinate

killed Cruz "because of the kilos . . . [;] [Rivera] had not

allowed [Cruz] to participate and [Cruz] had been stalking him."

Cf. United States v. David, 940 F.2d 722, 731-33, 737 (1st Cir.

1991) (no abuse of discretion in admitting evidence against alleged

ringleader         of    conspiracy    concerning       beating     of      drug   courier

suspected of stealing shipment).

                 Rivera also argues that the government violated discovery

rules       by    disclosing    an    FBI   Form    302    Report      of    Hernandez's

debriefing "only days before the testimony was to be introduced."

At trial, defense counsel objected to the admission of testimony by

Hernandez covering topics addressed in the 302 report, including

Rivera's claim of responsibility for the Cruz murder, on the



        7
        Rivera's complaint about the reliability of the evidence is
belied by the facts of record.           Rivera stated in taped
conversations that he had killed the person in the photograph on
page three of the August 11, 1997 edition of El Vocero, a newspaper
in Puerto Rico. That page does indeed contain a photograph of a
corpse later identified as Cruz.

                                            -39-
grounds that the government's failure to disclose this document at

an earlier date violated the Jencks Act, 18 U.S.C. § 3500.                  This

argument fails.     The Jencks Act provides that the government does

not need to disclose the statement or report of a government

witness "until said witness has testified on direct examination in

the trial of the case."       Id. § 3500(a).

E.   Closing Argument and Jury Instructions

           1.   Objection to Prosecutor's Closing Argument (Nelson)

           Nelson   argued    both   at     his   trial   and   to   us   that   a

statement made by the prosecutor in closing argument, described

below, was improper and prejudicial.

           We review de novo whether the challenged statement was

improper, and for abuse of discretion whether the misconduct, if

any, warrants a new trial.       United States v. Hernandez, 218 F.3d

58, 68 (1st Cir. 2000).      The standard for determining whether a new

trial is warranted is:

           An improper argument to the jury that does not implicate
           a defendant's constitutional rights . . . constitutes
           reversible error only where the prosecutor's remarks were
           both inappropriate and harmful.      Improper statements
           during closing argument are considered harmful if, given
           the totality of the circumstances, they are likely to
           have affected the trial's outcome.       In making that
           determination, we focus on (1) the severity of the
           prosecutor's misconduct, including whether it was
           deliberate or accidental; (2) the context in which the
           misconduct occurred; (3) whether the judge gave curative
           instructions and the likely effect of such instructions;
           and (4) the strength of the evidence against the
           defendants.



                                     -40-
United States v. Wihbey, 75 F.3d 761, 771-72 (1st Cir. 1996)

(footnote and citations omitted).       A prosecutor's comments do not

rise to the level of a constitutional violation unless they "so

infected the   trial   with   unfairness   as   to   make   the   resulting

conviction a denial of due process."        Darden v. Wainwright, 477

U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.

637 (1974)); see 5 W.R. LaFave et al., Criminal Procedure

§ 24.7(h), at 562 (2d ed. 1984).    The challenged statement does not

implicate constitutional rights.

          At the first trial, where Nelson was convicted, the

prosecutor concluded a summary of the evidence against Caribe by

remarking of him and two of the other defendants, "Caribe, Bonet

and [Ortiz] got away, they got away from us . . . [b]ack in 1993."

She next recalled Bonet's statement to Rivera and CI Diaz while

they were on the way to an October 30, 1997 meeting in Bonet's

home; Bonet said that the FBI was "a bunch of suckers" who had

failed to arrest him for his role in the earlier Al Capone drug

trafficking case.   The prosecutor then said:

          I request very respectfully from you that they [sic] do
          not let them and the other defendants in this case get
          away with it again. Let us make sure that not one, not
          one kilogram of cocaine more is imported into Puerto Rico
          by these seven defendants. Let us make sure of that.

          Nelson challenges the "let them and the other defendants

in this case get away with it again."           He argues there was no

evidence of prior crimes on his part and that it was improper to


                                 -41-
raise the specter that he was doing it again.            That is not so

clear.    There was evidence that Nelson had a role in the botched

importation of the 36 kilograms of cocaine that were lost by his

nephew, Luis Diaz.

           The government argues that the trial court overruled the

objection on the basis that the jury would, in context, have

understood the remark to actually refer only to Caribe, Bonet, and

Ortiz, and especially to Bonet's boasting of prior crimes. The use

of "again" could be understood, of course, to refer to hypothetical

past crimes of the other defendants and not be restricted to those

defendants the prosecutor had just named.         But, in context, the

stray "again," if the jury thought about it at all, would most

likely link back to those particular defendants.         Even if "again"

were understood to refer to all the defendants, we think there was

no harm done and certainly do not think the wayward "again" would

affect the outcome of the trial.        See Wihbey, 75 F.3d at 771-72.

           As   to   Nelson's   mere   generalized   argument   that   the

prosecutor made an emotional appeal to anti-drug dealing sentiment

in Puerto Rico, it too fails.          "Closing arguments traditionally

have included appeals to emotion. . . .              The outer limit on

emotional appeals is generally stated as a prohibition against

'arguments calculated to inflame the passions or prejudices of the

jury.'"   5 LaFave et al., supra, § 24.7(e), at 558.




                                  -42-
           2.    Requested Jury Instructions (Arroyo, Nelson)

           Arroyo      appeals     the   district    court's     refusal     of    his

requested jury instruction that a conspiracy conviction is not

possible if the defendant conspired only with government agents or

informants.      This legal point, while true, is inapplicable to the

case   against    Arroyo.         When    there   are     at   least   two      "true"

conspirators, the involvement of a government agent or informant

does not defeat the true conspirators' culpability.                      See United

States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987).                The evidence at

trial showed that Arroyo joined in meetings with not only CI

Hernandez and      Agent    Rosa,    but   also    Rivera.       His   unsupported

suggestion      that   he   and     Rivera      should    be   counted     as     each

independently conspiring with the CIS and the undercover agent is

unavailing.

           Nelson appeals the district court's refusal to deliver

requested jury instructions concerning proof of the identity of the

defendant as the person who committed the crimes, mere presence,

and his defense theories of necessity and good faith.                  He properly

preserved these requests for appeal.              There was no error.

           Nelson requested a separate instruction concerning the

factors   to    consider    when    evaluating      the    identification         of   a

defendant by a witness.          The government incorrectly contends that

potential misidentification was not relevant to Nelson's defense.

To the contrary, his "two Nelsons" theory of mistaken identity


                                         -43-
hinged on it.         The proof of Nelson's guilt was at least partly

dependent on Hernandez's connection of Nelson to the voice of the

person with whom he spoke on the telephone and to the person about

whom Rivera and other coconspirators spoke.                Defendant Nelson says

he is not the Nelson in those phone calls.8

             A   district    court's     refusal      to     give   a   requested

instruction      is   erroneous   only    if    the   instruction       "was   not

substantially covered in the charge actually delivered to the

jury."   United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984)

(quotation omitted).        Here, it was.      The district court delivered

a broader charge concerning the credibility of witnesses in general

and the jury's responsibility to consider possible limitations on

the ability of a witness to observe the facts about which he

testified.

           Nelson also requested an instruction that "mere presence"

was insufficient for conviction.          Similarly, the court explicitly

instructed the jury that mere presence was not sufficient to prove

a conspiracy charge, so Nelson's claim has no merit.




     8
        Nelson argues that there were "two Nelsons," the defendant
and a Colombian supplier also known as Nelson.     He points to a
reference in the FBI affidavit seeking a wiretap warrant, in which
CI Hernandez reported that he had witnessed a telephone call
between Rivera and "Nelson LNU [Last Name Unknown]." "Nelson" is
this defendant's last name, not his first name. In the affidavit,
Rivera and Nelson are said to have discussed Rivera paying Nelson
for the 36 kilograms of cocaine that were lost in transport, as
well as arrangements for a future shipment.

                                    -44-
             Nelson's    asserted      necessity   defense9   turns    on     the

kidnapping    of   his   nephew   by    the   Colombians.     Nelson      sought

assistance    from   Rivera   and      CI   Hernandez,   hoping    they     would

intervene with the kidnappers, and Hernandez testified that he

tried to do so.      Rivera recommended that Nelson offer to pay the

Colombians back with work on future shipments.                    In the end,

Nelson's nephew escaped from his kidnappers unharmed.                     Nelson

argues that his fear for his nephew's safety compelled him to do

the things for which he was convicted.

             A defendant must make a showing of a factual predicate

for a necessity defense that is sufficient to raise a question for

the jury.    See United States v. Arthurs, 73 F.3d 444, 448 (1st Cir.

1996); United States v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992).

That predicate is demanding:

            To successfully assert the necessity defense, a defendant
            must show that he (1) was faced with a choice of evils
            and chose the lesser evil, (2) acted to prevent imminent
            harm, (3) reasonably anticipated a direct causal
            relationship between his acts and the harm to be averted,
            and (4) had no legal alternative.

United States v. Sued-Jimenez, 275 F.3d 1, 6 (1st Cir. 2001).

            Here, Nelson did not proffer any evidence that he was

forced to join the other defendants' conspiracy because of fear for



     9
        The traditionally separate defenses of necessity and
duress have become increasingly blurred in modern decisions, to
the point of merger. See United States v. Bailey, 444 U.S. 394,
410 (1980).   We will follow the parties' lead and refer to the
defense offered here as "necessity."

                                       -45-
his nephew's safety.    There was no evidence that the kidnappers

demanded he do so; they simply wanted their money back.             It was

never demonstrated that harm to his nephew was imminent, or that

Nelson had no legal alternatives. Finally, there was evidence that

Nelson's criminal activity continued after his nephew had escaped.

In short, the evidence did not adequately support any of the

required elements for a necessity defense.10

           Nelson's   separate   request     for   a   "good   faith"   jury

instruction is misplaced, as there is no good faith defense for

participating in a narcotics conspiracy. If the argument was meant

to address the intent required for a conspiracy conviction, the

district   court   instructed    on   that   point,    stating   that    the

government must prove that a defendant "knew the unlawful purpose

of the agreement and joined in it willfully; that is, with the

intent to further the unlawful purpose."           See New Eng. Enters.,

Inc. v. United States, 400 F.2d 58, 71 (1st Cir. 1968) (holding

that a forthright instruction on specific intent is ordinarily a

sufficient response to a defendant's request for a good faith

instruction).




     10
        We also reject Nelson's argument, advanced pro se, that the
reference to his nephew's kidnapping in the indictment transformed
the necessity defense into an integral part of his charge.

                                  -46-
F.    "Supplemental" Motion for a New Trial (Nelson)

            Nelson filed a timely motion for a new trial on November

1, 1999.   It dealt entirely with objections to alleged flaws in the

wiretap affidavit; these arguments were analyzed earlier in this

opinion.     On March 9, 2000, Nelson filed a "supplement" to this

motion for a new trial, which raised a different set of substantive

issues concerning Nelson's theory of mistaken identity.          The court

denied Nelson's motions for a new trial on December 15, 2000.

            Nelson knew the basis for his "two Nelsons" theory of

mistaken identity before and during trial, and referred to it in a

motion for mistrial during the government's case in chief.             The

supplement    does   not   claim   to   rely   on   any   newly-discovered

information available only after trial.             As such, it is time-

barred.    See Fed. R. Crim. P. 33(b)(2) (allowing seven days after

verdict for filing motions for new trial based on grounds other

than newly-discovered evidence). Fed. R. Crim. P. 45(b) explicitly

constrains the district court from extending the time period set

out in Rule 33.      See United States v. Holt, 170 F.3d 698, 702-03

(7th Cir. 1999); United States v. Hall, 854 F.2d 1269, 1271-72

(11th Cir. 1988). Construing this very late filing (on an entirely

separate issue) as an amendment would violate both the letter and

the spirit of both rules, and create a "back door" for untimely

challenges to verdicts.      Holt, 170 F.3d at 703.       We refuse to do

so.


                                   -47-
G.   Ineffective Assistance of Counsel (Rivera, Caribe and Nelson)

            Rivera,     Caribe,    and   Nelson    raise   issues   concerning

alleged conflicts of interest on the part of the attorneys who

represented them at trial.           Caribe also makes another claim of

ineffectiveness of counsel unrelated to the alleged conflicts.

            Rivera first raised his claim before the district court

in   a   post-verdict     motion   for   a   new   trial   and   made   factual

assertions in support of the motion.               While Rivera points to a

potential conflict of interest, he failed to carry his burden to

show any actual negative impact on his representation, and the

denial of his motion for new trial was not error.

            Unlike Rivera, Caribe and Nelson did not raise their

ineffective assistance arguments in front of the district court at

all, and we will not entertain their fact-dependent but thinly-

supported claims for the first time on direct appeal.

            1.   Rivera

            Rivera, who was convicted at the second trial, says he

became dissatisfied with his appointed counsel and hired Edgar

Vega-Pabon ("Vega") as his attorney a few weeks before his trial

began.    Vega also represented Ortiz, who was indicted as a member

of Rivera's conspiracy.           Unlike Rivera, Ortiz was tried in the

first trial.     The jury there hung as to Ortiz, but the government

pursued a retrial and Vega then negotiated a plea agreement for




                                      -48-
Ortiz.    This agreement was completed before Rivera's trial began,

although Ortiz was not sentenced until after Rivera's conviction.

               The district court in the second trial never inquired

into     the    potential   conflict     of   interest   raised   by   Vega's

representation of both Rivera and Ortiz, although the same judge

presided over both proceedings and apparently was aware of Vega's

role in the first trial.      In its ruling denying Rivera's motion for

a new trial, the district court relied on the Advisory Committee

Notes to Fed. R. Crim. P. 44(c) and concluded that Vega had engaged

in joint representation by working, at least for a period of time,

both for Rivera on his trial and for Ortiz in preparation for his

sentencing.      The government does not challenge this determination

of joint representation and we will assume it to be correct for

purposes of this case.

               Rivera's initial brief, citing United States v. Foster,

469 F.2d 1 (1st Cir. 1972), rests on the assertion that the

district court's failure to conduct a hearing into the possible

conflict requires a new trial.            This analysis misreads Foster,

which indicated at most that, when the district court does not

inquire into a conflict, then on direct appeal the burden of

persuasion shifts to the government to demonstrate that a negative

effect from the conflict was "improbable."          Id. at 5.     We long ago

cautioned against granting an undeserved "windfall" to defendants

by vacating convictions on the basis of Foster violations "where it


                                       -49-
is more likely than not that conflicting interests did not hamper

counsel's pursuit of a potentially effective defense."          United

States v. Martorano, 620 F.2d 912, 916 (1st Cir. 1980); see also

Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982) ("[T]he

conflict must be real, not some attenuated hypothesis having little

consequence to the adequacy of representation.").

            Moreover, the continued vitality of the Foster burden-

shifting framework is called into question by the Supreme Court's

recent decision in Mickens v. Taylor, 122 S. Ct. 1237 (2002).       That

case involved a situation where the trial judge had "fail[ed] to

inquire into a potential conflict of interest about which it knew

or reasonably should have known."      Id. at 1239.   The Supreme Court

concluded that such a failure on the trial judge's part "does not

reduce the petitioner's burden of proof" to demonstrate that the

potential conflict he alleges actually affected the representation

he received in order to show a constitutional violation.        Id. at

1244.   The Mickens requirement that the defendant show the alleged

conflict actually affected the representation received is not

precisely   the   same   as   demonstrating   prejudice.   Id. at   1244

(standard "requires proof of effect upon representation but (once

such effect is shown) presumes prejudice").           But Mickens does

require more than the showing Rivera offered in his opening brief,




                                   -50-
filed before Mickens, by simply pointing to the absence of a Foster

hearing.11

             In   this   case,   because    the   likelihood   of   the   joint

representation having an effect on Rivera's defense is so minimal,

it does not matter who had the burden.                 The district court

determined, and we agree, that the government had amply shown that

Rivera's defense did not suffer from any conflict.             Thus, we need

not, and do not, decide the burden-shifting question here.

             The standard for an effect is that the defendant "might

plausibly have pursued an alternative defense strategy, and that

the alternative strategy was in conflict with, or may not have been

pursued because of, [the attorney's] other loyalties or interests."

United States v. Ramirez-Benitez, 292 F.3d 22, 30 (1st Cir. 2002);

see also Reyes-Vejerano v. United States, 276 F.3d 94, 97 (1st Cir.

2002) (applying same test); Brien, 695 F.2d at 15 (adopting same

test).




     11
         In his reply brief, filed after Mickens, Rivera attempts
to demonstrate the effect on his representation as follows:
     Strategies concerning the development of Rivera's perceived
     role in the organization as compared with that of Ortiz,
     arguments   related  to   separate   conspiracies,   temporal
     limitations regarding the scope of independent conspiracies,
     proofs concerning drug quantities at Rivera's trial which
     differed from those in the plea entered into by Ortiz and for
     which Ortiz had yet to be sentenced, considerations involved
     in calling Ortiz as a witness, as well as plea and/or
     cooperation agreement overtures, for which Rivera was in
     competition with Ortiz, were, necessarily, influenced.

                                     -51-
             The   existence    of   an    alternative   strategy   is   most

implausible here.     Ortiz, the other defendant represented by Vega,

was a minor figure in the conspiracy.              Rivera, however, was the

leader, and he eventually received a life sentence, the stiffest of

any defendant.       The suggestion that the government would have

accepted a plea from Rivera in preference to one from Ortiz is

untenable, even more so since Ortiz had already entered his plea

before Rivera's trial began.              Nor do we find any significant

evidence that might have been helpful to Ortiz's sentencing but

harmful to Rivera's trial, or vice versa.            There is no indication

that Rivera would have any good reason to call Ortiz as a witness.

Finally, the potential impact of any conflict was further reduced

because Rivera's previous appointed attorney remained in the case

as co-counsel with Vega.        In fact, it is reasonable to think that

Rivera hired Vega precisely because he managed to get a hung jury

for   Ortiz,    knowing   the   lawyer     would   complete   his   post-plea

representation of Ortiz through sentencing.              Rivera, it seems,

wanted to have his cake and eat it too.

             On different facts, we might conclude that an underlying

multiple representation presents a serious question of conflict.

In Rivera's case, however, there is nothing more than speculation

of possible conflict, which would not pass muster after Mickens or

before it.     See United States v. Burgos-Chaparro, 309 F.3d 50, 52-

53 (1st Cir. 2002) (finding "speculation" an inadequate threshold


                                     -52-
showing by defendant claiming conflicts after Mickens); United

States v. Michaud, 925 F.2d 37, 41 (1st Cir. 1991) (rejecting, in

pre-Mickens    case,     conflict     of    interest   claim       that   was

"insufficiently specific" in describing nature of conflict).              In

order to find an effect from an alleged attorney conflict, "some

adverse action or inaction is required that can be traced to the

conflict in loyalty.     Merely to speculate that the divided loyalty

could have caused such a step is not enough." Burgos-Chaparro, 309

F.3d at 53.

          2.   Caribe and Nelson

          As to Caribe and Nelson, who did not present their claims

to the district court, it is the settled policy of this court not

to entertain fact-specific ineffective assistance of counsel claims

on direct appeal when they have not been raised previously.               See

United States v. Campbell, 268 F.3d 1, 7 (1st Cir. 2001).           There is

an exception to this rule "where the critical facts are not

genuinely in dispute and the record is sufficiently developed to

allow reasoned consideration of an ineffective assistance claim."

United States v. Netanel, 938 F.2d 302, 309 (1st Cir. 1991).              But

the exception does not apply to any of the three claims that Caribe

or Nelson advances.

          Caribe's purported conflict of interest is that one of

his attorneys, Jose Aguayo, represented CI Hernandez in a previous

case.    Caribe   says    that   he   was    unaware   of   this    previous


                                    -53-
relationship until after his own trial and would not have accepted

Aguayo as his lawyer if he had known.   But the factual presentation

he makes is inadequate for us to judge the effect of any conflict.

Caribe also makes a more common ineffectiveness claim alleging

shortcomings in the performance of one of his other attorneys, but

it too is very fact-specific and it is supported by no more than a

list of complaints in Caribe's brief.      Finally, Nelson's claim,

advanced pro se, is even more clearly ineligible for consideration

under the Netanel exception.   He asserts a conflict of interest

based on his lawyer's representation of David Ramos-Rivera, who was

not indicted as a defendant in this conspiracy case; Nelson offers

no explanation of the supposed conflict. We will not entertain any

of these three claims for the first time on the meager record the

appellants present to us.12




     12
        For the same reason, we also reject Rivera's claim, raised
cursorily in his appellate briefs and not raised in his motion for
a new trial before the district court, that attorney Vega was
further conflicted because of his past representation of Miguel
Montanez (a/k/a "Mickey Motors"). Above, we uphold the district
court's decision to exclude impeachment evidence from Rivera's
trial concerning the alleged connection between CI Hernandez and
the Mickey Motors murders.    Rivera makes no explanation of how
Vega's past relationship with Montanez made any difference to the
case, and seems merely to have tacked this claim onto his more
sustained argument concerning joint representation with Ortiz.

                               -54-
