
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1819                                    UNITED STATES,                                      Appellee,                                          v.                                  OTIS DARREN LEWIS,                                Defendant - Appellant.                                 ____________________          No. 93-1820                                    UNITED STATES,                                      Appellee,                                          v.                                   MICHAEL STARKS,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               William A. Brown, by Appointment of the Court, for appellant               ________________          Otis Darren Lewis.               James P. Duggan, by Appointment  of the Court, for appellant               _______________          Michael Starks.               Thomas  C.  Frongillo, Assistant  U.S.  Attorney,  with whom               _____________________          Donald K. Stern,  United States Attorney, and  Michael J. Pelgro,          _______________                                _________________          Assistant U.S. Attorney, were on brief for appellee.                                 ____________________                                  November 14, 1994                                 ____________________                                         -2-                    TORRUELLA,  Circuit  Judge.     A  federal  grand  jury                                ______________          returned a  five-count indictment charging Otis  Darren Lewis and          Michael Starks with  (1) being felons-in-possession of  firearms,          (2)  carrying and using firearms during and in relation to a drug          trafficking crime,  and (3) possession with  intent to distribute          cocaine base.  Following a four day trial, a jury found Lewis and          Starks guilty on all counts.   The court then sentenced  Lewis to          serve 322 months in prison.   The court sentenced Starks to serve          144  months in  prison.    Lewis  and  Starks  now  appeal  their          convictions and sentences on various grounds.  For the  following          reasons, we affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    A.  Facts                    A.  Facts                    On Friday,  August 14,  1992, a confidential  informant          telephoned  Officer  Robert  Leedberg   of  the  Brockton  Police          Department  "Gang  Unit" on  a cellular  phone.     The informant          stated  that two  men, Otis  Darren  Lewis ("Lewis")  and Michael          Starks ("Starks"), were  in possession of firearms  inside Pete &          Mary's  Bar, located  on  the  corner  of Montello  and  Franklin          Streets  in  downtown Brockton.    Because  Officer Leedberg  was          involved in another case on August  14, 1992, he did not  respond          to the tip.                      The  confidential  informant  again telephoned  Officer          Leedberg  on August 15, 1992, at about  11:00 p.m. and then again          at 12:20 a.m.  on August  16, 1992.   The confidential  informant          told Officer  Leedberg  that  Lewis  and  Starks  were  again  in                                        - 3 -          possession  of firearms in Pete & Mary's  Bar.  He stated that he          had seen the firearms and the informant then described to Officer          Leedberg how Lewis and Starks were dressed.  After obtaining this          information, Officer Leedberg and Brockton Police  Officers James          Smith and Thomas Keating established surveillance in the vicinity          of Pete  & Mary's Bar.   The officers were in  an unmarked police          cruiser and were dressed in street clothes.                    During the course of their investigation, Officer Smith          left  the  unmarked  police  car  to  conduct  surveillance  from          Montello Auto Sales, a  used car lot located directly  across the          street from the  front of Pete &  Mary's Bar.  Officers  Leedberg          and  Keating remained in the unmarked police cruiser and drove to          a surveillance post in  a parking lot behind  Pete & Mary's  Bar.          They watched the rear door of the bar from this location.                    At about 12:35 a.m., the confidential informant arrived          in the parking lot behind the bar.  Officers Leedberg and Keating          met with the informant and observed him enter and later leave the          bar.  After leaving the bar, the informant conferred with Officer          Smith in  the used car lot.   Officer Smith then  called Officers          Leedberg  and Keating on the  radio.  After  receiving this call,          Officers Leedberg and Keating moved their unmarked police cruiser          to a position from which they could observe the front of the bar.          At about 1:00 a.m., Officer Smith saw Lewis and Starks leave Pete          and Mary's Bar, cross Montello Street, and approach a brown Buick          parked at the D'Angelo's Sub Shop ("D'Angelo's") parking lot.                    As  Lewis  and  Starks  stood  near  the  brown  Buick,                                        - 4 -          Officers  Leedberg  and  Keating  were  rapidly  approaching  the          D'Angelo's  parking lot  in their  unmarked police  car.   Starks          recognized  the unmarked  police car  as a  result of  a previous          encounter with Officers Leedberg and Smith.                      As  Officers  Leedberg  and  Keating  advanced, Officer          Smith, who  was still conducting  surveillance from the  used car          lot adjacent to the D'Angelo's parking  lot, observed Starks bend          down,  place a black object  under the Buick,  and straighten up.          Officer  Smith then saw Lewis similarly bend down on the driver's          side of the  Buick.   Officer Leedberg then  parked the  unmarked          police vehicle behind the brown Buick.  As Officer Keating exited          the  car, he  saw Starks  waiving his  hands and  approaching the          police car.  Officer  Keating then observed Lewis stand up on the          driver's  side of the Buick.   After exiting  the unmarked police          car, Officer  Leedberg repeatedly  shouted, "Police,  don't move;          keep your hands in sight."  Officer Smith then pat-frisked Lewis.          Officer Leedberg pat-frisked Starks.   Neither officers found any          guns or narcotics  at this  time.  On  instructions from  Officer          Smith, Officer Keating  then searched the  parking lot where  the          pair  had just  bent down  and  stood up.   He  found a  loaded 9          millimeter  Beretta pistol and a  vial containing 17  pieces of a          substance later determined  to be "crack cocaine" under the brown          Buick.  He also found a loaded .45 caliber Star pistol and a vial          containing  22  pieces  of  crack  cocaine  under  a  car  parked          alongside the brown Buick.  The police officers then placed Lewis          and Starks under arrest.                                        - 5 -                    B.  Procedural History                    B.  Procedural History                    A federal  grand jury returned a  five-count indictment          charging Lewis and Starks  with (1) being felons-in-possession of          firearms  in violation of 18 U.S.C.   922(g)(1), (2) carrying and          using firearms during and in relation to a drug trafficking crime          in  violation  of 18  U.S.C.    924(c);  and (3)  possession with          intent to distribute  cocaine base  in violation of  21 U.S.C.             841(a)(1).   Following the  indictment, Lewis and  Starks filed a          motion  to suppress the guns  and narcotics which  the police had          seized  on the  morning of the  arrest as  being the  fruit of an          unlawful  search and  seizure.   The district  court denied  this          motion and admitted the evidence.  Following a four day trial,  a          jury found  Lewis and  Starks guilty  on all  counts.  The  court          calculated  that,  under  the sentencing  guidelines,  the crimes          committed by Lewis and  Starks amounted to a total  offense level          of 26.  The court determined  that Lewis' prior crimes placed him          in  criminal history category IV  and sentenced him  to serve 322          months  in prison.  The  court placed Starks  in criminal history          category III and  sentenced him  to serve 144  months in  prison.          Lewis and  Starks now  appeal various  issues connected  to their          convictions and sentences.                                      DISCUSSION                                      DISCUSSION                                      __________                             I.  The evidentiary hearing                             I.  The evidentiary hearing                    Lewis and Starks filed a motion to suppress, contending          that  the  police officers  improperly  seized  the firearms  and          cocaine.   With respect to  the motion, Lewis  and Starks contend                                        - 6 -          that  the district court erred by failing to order an evidentiary          hearing.   As  a preliminary  matter, we  note that  the district          court  is entrusted with deciding whether  to hold an evidentiary          hearing  and we  will  not overrule  the  refusal to  convene  an          evidentiary  hearing unless the  district court is  shown to have          abused  its discretion.  United States v. McAndrews, 12 F.3d 273,                                   _____________    _________          280 (1st Cir. 1993).  Lewis and Starks have made no such showing.                    "[A] criminal defendant has  no absolute or presumptive          right to insist that  the district court take testimony  on every          motion."  United  States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.                    ______________    ______          1990) (citations  omitted).   Evidentiary hearings on  motions to          suppress are  required only when  a defendant makes  a sufficient          showing that a warrantless search has occurred.  United States v.                                                           _____________          Migely, 596 F.2d 511, 513 (1st Cir.), cert.  denied, 442 U.S. 943          ______                                _____________          (1979).  To make this showing "[t]he defendant must allege facts,          'sufficiently definite, specific,  detailed, and  nonconjectural,          to  enable  the court  to conclude  that  a substantial  claim is          presented.'"   Id. (quoting Cohen v. United States, 378 F.2d 751,                         __           _____    _____________          761 (9th Cir.), cert. denied, 389 U.S. 897 (1967).  The defendant                          ____________          must allege facts that,  if proven, would entitle him  to relief.          Migely, 596 F.2d at 513.          ______                    Lewis and Starks have not shown that they were entitled          to  an evidentiary hearing.   The facts  surrounding their arrest          were essentially  uncontested at  the hearing  on  the motion  to          suppress.   Lewis and Starks  were required to  allege facts that          indicated that  the police  officer's discovery of  the guns  and                                        - 7 -          cocaine  violated  the  Fourth  Amendment.   They  alleged  none.          Neither  Lewis nor  Starks personally  swore out  any affidavits.          The  lone  affidavit in  support of  the  motion to  suppress was          prepared by Starks'  attorney, who had no first-hand knowledge of          the relevant events; it contains only conclusory allegations that          the  police lacked  probable  cause or  a reasonable  articulable          suspicion  of  criminal activity  when  they  arrested Lewis  and          Starks.   In contrast,  the government filed  detailed affidavits          sworn  out by  Officers  Smith and  Leedberg  in support  of  its          opposition to Lewis' and Starks' motion to suppress.                    In sum, the affidavit in  support of Lewis' and Starks'          motion to  suppress does not  allege facts that  are sufficiently          definite,  specific, detailed,  and nonconjectural to  enable the          court to conclude that  a substantial claim is presented.   Thus,          the district court was  completely justified in refusing to  hold          an evidentiary hearing where the factual matters were essentially          uncontested.                             II.  The motion to suppress                             II.  The motion to suppress                    Lewis and Starks contend that the contraband the police          officers  confiscated  from  the  parking lot  should  have  been          excluded  as  the  fruit  of  an  unlawful,  warrantless  search.          Specifically, Lewis and Starks assert that the police seized them          without probable cause immediately after they left  Pete & Mary's          Bar and that this  seizure occurred before the officer  allegedly          observed them abandon the guns and cocaine.                      First,  we agree  with  the government  that Lewis  and                                        - 8 -          Starks lacked  standing under  the Fourth Amendment  to challenge          the  search.   Moreover, even  assuming arguendo  that Lewis  and                                                  ________          Starks had  standing,  we  find  that the  search  satisfied  the          requirements of the Fourth Amendment.                    While we  review the district court's  findings of fact          on  a motion to suppress for  clear error, we review questions of          law de novo.  United States v. Zapata, 18 F.3d 971, 975 (1st Cir.              _______   _____________    ______          1994). "This  phenomenon  sets  the  stage  for  a  more  nuanced          statement of appellate practice in  Fourth Amendment cases."  Id.                                                                        ___          Though  we   treat  the  factual  findings   with  deference,  we          "[subject] the trial court's ultimate  constitutional conclusions          to plenary oversight."  Id.                                   ___                    A.  Standing                    A.  Standing                    The Fourth Amendment's protection  against unreasonable          searches and  seizures extends only to those places and interests          in which the defendant  has a reasonable expectation  of privacy.          United States  v. Cruz Jim nez,  894 F.2d  1, 5  (1st Cir.  1990)          _____________     ____________          (citing Rakas v. Illinois, 439 U.S. 128, 140-50 (1978)).  Such an                  _____    ________          expectation of privacy is a threshold standing requirement that a          defendant  must establish  before a  court can  proceed with  any          Fourth  Amendment analysis.1  Cruz Jim nez, 894 F.2d at 5 (citing                                        ____________                                        ____________________          1   "This inquiry is  often referred  to as  a 'standing'  issue,          although  it  is  not an  inquiry  that  serves  the function  of          traditional standing doctrine, which is to enable a federal court          to  determine whether there is  such case or  controversy that it          may take jurisdiction of  under Article III."  Cruz  Jim nez, 894                                                         _____________          F.2d at 5 n.1 (citations omitted).  The concept of standing under          the Fourth Amendment refers to the defendant's burden  of proving          a  legitimate  expectation  of   privacy  as  a  prerequisite  to          challenging assertedly unlawful police conduct.  United States v.                                                           _____________                                        - 9 -          United States v. Salvucci, 448 U.S. 83, 90-91 (1980)).  "What the          _____________    ________          Fourth  Amendment protects is the security a man relies upon when          he  places  himself or  his  property  within a  constitutionally          protected  area, be it his home or  his office, his hotel room or          his  automobile."   Hoffa  v. United  States,  385 U.S.  293, 301                              _____     ______________          (1966).   "Essentially,    . . .  to  prove  a  Fourth  Amendment          violation,  [a  defendant]  must  demonstrate not  only  that  he          exhibited  a subjective expectation of privacy, but also that his          expectation was  justifiable under the  attendant circumstances."          Cruz Jim nez, 894 F.2d at 5 (citing United States v. Aguirre, 839          ____________                        _____________    _______          F.2d 854, 857 (1st  Cir. 1988)).  The defendant bears  the burden          of  persuasion  on  this issue.    Cruz Jim nez,  894  F.2d  at 5                                             ____________          (citations omitted).                      A  defendant who  fails to  demonstrate  a sufficiently          close  connection to the relevant places or objects will not have          standing to claim  that they were  illegally searched or  seized.          United States v. S nchez, 943 F.2d 110, 113 (1st  Cir. 1991); see          _____________    _______                                      ___          also United States  v. Pierce,  959 F.2d 1297,  1303 (5th  Cir.),          ____ _____________     ______          cert. denied, 113  S. Ct.  621 (1992) (holding  that a  defendant          ____________          lacked standing to  object to a  search because he  never at  any          point during  the trial or  appeal "attempted to  establish, much          less prove, any privacy interest in the [contraband]").                      Lewis and Starks lacked  standing to protest the police          officers' search of the parking lot because they failed to assert                                        ____________________          S nchez, 943 F.2d  110, 113 n.1  (1st Cir. 1991).   "We therefore          _______          use the  term 'standing'  somewhat imprecisely to  refer to  this          threshold substantive determination."  Id.                                                 ___                                        - 10 -          any privacy interest in  the seized contraband.   It may well  be          that  Lewis and Starks had a reasonable expectation of privacy in          the contraband, but if so, they failed to assert it in support of          their motion to  suppress.  Neither  Lewis nor Starks  personally          swore  out any affidavits  with respect  to such  an expectation.          Rather, the lone affidavit in support of their motion to suppress          was prepared by Starks' attorney, who had no first-hand knowledge          of the relevant  events.  Moreover, this affidavit  contains only          conclusory allegations that the police lacked probable cause or a          reasonable articulable suspicion  of criminal activity when  they          arrested Lewis and Starks.   We appreciate that Lewis  and Starks          may have feared that  any interest they  may have claimed in  the          contraband  would be used against them at trial; however, "it has          been well settled for  over twenty years that testimony  given to          meet  standing requirements  cannot  be used  as direct  evidence          against  the defendant  at  trial on  the  question of  guilt  or          innocence."  United States v. Garc a-Rosa, 876 F.2d 209, 219 (1st                       _____________    ___________          Cir.  1989) (citing Simmons v.  United States, 390  U.S. 377, 390                              _______     _____________          (1968)).   Lewis'  and Starks' only  interest in  suppressing the          contraband appears to  be to avoid its  evidentiary force against          them;  this is not an interest protected by the Fourth Amendment.                    Although we find that Lewis and Starks lack standing to          raise a Fourth Amendment challenge, we note that in any event the          search  satisfied the  Fourth  Amendment under  the doctrines  of          abandonment and plain view.                                        - 11 -                    B.  Abandonment                    B.  Abandonment                    When a  defendant abandons property before  a "seizure"          occurs,  the  Fourth  Amendment  is not  implicated  because  the          property  is  not the  fruit of  an  illegal search  and seizure.          California v.   Hodari D., 499  U.S. 621, 629 (1990).   An arrest          __________     __________          requires  "either physical force . .  . or, where that is absent,          submission  to the assertion of authority."  Id. at 626 (emphasis                                                       ___          in original).   The police  have made an  assertion of  authority          only  if their  words and  actions would  have caused  an average          citizen to believe  he was not free to leave.  Id. at 628 (citing                                                         ___          United  States  v. Mendenhall,  446 U.S.  544,  554 (1980)).   In          ______________     __________          Hodari,  a police officer was chasing  the defendant and, moments          ______          before  the officer tackled him,  the defendant tossed  a rock of          cocaine  from his  person.   Id. at  623.   The Court  held that,                                       ___          "assuming  that [the officer's] pursuit . . . constituted a 'show          of authority' enjoining [the  defendant] to halt, since  [he] did          not comply  with that injunction  he was not seized  until he was          tackled."   Id. at 629.   Thus, the cocaine  abandoned during the                      ___          course of the chase was not the fruit of a seizure.                      We follow  Hodari and find  that, even if  the Brockton                               ______          Police had made  a show of force  when they approached  Lewis and          Starks in the  D'Angelo's parking lot, Lewis and Starks abandoned          the contraband before they submitted to official  authority.  The          district court  expressly found that  Lewis and Starks  bent down          and  straightened  up  near the  brown  Buick  before the  police          announced  themselves  and  then  pat-frisked  Lewis  and Starks.                                        - 12 -          Thus, though Lewis and Starks eventually submitted to the  police          officers, this  submission occurred after they  had abandoned the          contraband.   Consequently, the  motion to suppress  was properly          denied under the doctrine of abandonment.                                        - 13 -                    C.  Plain View                    C.  Plain View                    The "plain  view" doctrine  allows the police  to seize          evidence  without a warrant  so long  as (1)  the evidence  is in          "plain view,"  (2) the  police are  legitimately on the  premises          where the evidence is seized, and (3) the evidence is immediately          and apparently connected to  the criminal activity.  Coolidge  v.                                                               ________          New Hampshire, 443 U.S. 443, 464-73 (1971).          _____________                    Lewis  and Starks do not contest the fact that the guns          and cocaine were in  plain view and their connection  to criminal          activity  was immediate  and  apparent when  the officers  seized          them.  Rather, Lewis and Starks contend  that the police were not          legitimately in the parking lot where the evidence was seized.                      The district court found  that the police officers were          legitimately in the parking lot and that they had the "reasonable          articulable suspicion" necessary to justify an investigatory stop          under  the Fourth  Amendment.   Terry  v. Ohio,  392  U.S. 1,  21                                          _____     ____          (1968);  see also Adams v. Williams, 407 U.S. 143 (1972) (holding                   ________ _____    ________          that a Terry stop was  justified when an informant told  a police                 _____          officer that an individual in a nearby vehicle was carrying drugs          and  weapons).  The record  amply supports this  conclusion.  The          district court  found that a reliable  confidential informant had          told  the Brockton  Police that  Lewis and  Starks  were carrying          contraband  in Pete &  Mary's Bar.   Officer Leedberg's affidavit          established that the informer had previously provided information          that led to  the arrest  of twelve defendants  in seven  criminal          cases in the Brockton District Court.  Further, during the course                                        - 14 -          of  their  surveillance outside  Pete  & Mary's  Bar,  the police          officers  were   able  to   corroborate  some  portions   of  the          confidential informant's tip.   Specifically,  the officers  were          able to verify that the informer had been inside the  bar and was          thus  in  a  position  to  see that  Lewis  and  Starks  were  in          possession  of  firearms.    The surveillance  also  allowed  the          officers to observe  that Lewis  and Starks were  dressed as  the          informer  had  described.    Consequently,  the  informer's  tip,          coupled  with   the  informer's  previous  reliability   and  the          corroboration  provided  by  police  observations,  justified  an          investigatory  stop.  Thus, because we agree that the police were          legitimately  in the parking lot and because the guns and cocaine          were  in plain view and their connection to criminal activity was          apparent, the officers properly seized the evidence.                     III.  The confidential informant's identity                     III.  The confidential informant's identity                    Lewis  and  Starks  assert   that  the  district  court          erroneously denied their  motion to disclose the identity  of the          confidential informant.    Specifically, they  contend  that  the          informant played a  material role  in their arrest  and that  his          testimony was  vital because  it pertained  to their  defense and          could  "amplify,   contradict,  or  clear  up"  the  Government's          evidence.                      We review the district court's decision not to disclose          the  identity of  a  confidential  informer  under  an  abuse  of          discretion standard.  See United States v. Jackson, 918 F.2d 236,                                ___ _____________    _______          240 (1st Cir. 1990).                                        - 15 -                    The courts have long recognized that the Government has          a "privilege to withhold from  disclosure the identity of persons          who furnish information of violations of law to  officers charged          with enforcement of  that law."   Roviaro v.  United States,  353                                            _______     _____________          U.S.  53, 59  (1957).    "The purpose  of  the  privilege is  the          furtherance and  protection of  the public interest  in effective          law  enforcement.   The  privilege recognizes  the obligation  of          citizens  to communicate  their  knowledge of  the commission  of          crimes  to law-enforcement  officials  and,  by preserving  their          anonymity,  encourages them  to  perform that  obligation."   Id.                                                                        __          This privilege, however, is not absolute.   Id. at 60-61.  "Where                                                      __          the  disclosure of an informer's identity, or the contents of his          communication,  is  relevant and  helpful  to the  defense  of an          accused, or is essential to a fair determination  of a cause, the          privilege must give way."  Id.                                     __                    The resolution of this  issue depends on the particular          circumstances  of each case.   Id. at  62.  The  trial court must                                         __          balance the public interest in protecting the flow of information          against the individual's  right to prepare his defense.   Id.  In                                                                    __          so doing,  it should take  into consideration the  crime charged,          the  possible   defenses,  the   possible  significance  of   the          informer's  testimony,  and other  relevant  factors.   Id.   The                                                                  __          burden is on the defendant to demonstrate  that the circumstances          demand disclosure; "[mere] speculation . . . is not sufficient to          meet the heavy burden which rests on an accused to establish that          the  identity of  a confidential  informant  is necessary  to his                                        - 16 -          defense."  United  States v. Giry, 818 F.2d  120, 130 (1st Cir.),                     ______________    ____          cert.  denied, 484  U.S.  855 (1987)  (quoting  United States  v.          _____________                                   _____________          Skeens,  449  F.2d  1066, 1070  (D.C.  Cir.  1971)).   Where  the          ______          informant   is  a  "mere  tipster,"   as  opposed  to  an  active          participant in  the offense charged, disclosure  is required only          in  the exceptional  case  where it  is  vital to  a fair  trial.          United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir. 1991)          _____________    _______________          (citing Giry, 818 F.2d at 130).                  ____                    Lewis and Starks argue that the informant was more than          a mere tipster and that his testimony was vital to their defense,          in that he provided the police with the information that resulted          in  their arrest.   They imply that  the informant may  have even          "set  them  up."   They  list  a  number of  questions  that were          unanswered  due  to  the  district  court's  refusal  to  require          disclosure of the informant.   These include questions concerning          the  nature of the relationship, if any, between the informer and          Lewis and  Starks and  whether the informer  harbored a  personal          grudge  against  them.    Consequently, they  conclude  that  the          informer's absence precluded a fair trial.  We disagree.                      The district court properly refused to order disclosure          of  the informant's  identity.   The  record  indicates that  the          informant was merely a tipster in the arrest of Lewis and Starks.          The informer simply spoke with the police, first by telephone and          then  in  person,  to inform  them  that  Lewis  and Starks  were          carrying firearms in Pete & Mary's Bar.  The arrest then occurred          approximately twenty minutes after the police last spoke with the                                        - 17 -          informer.   The  informer was  not  present at  the scene  of the          arrest  in  the parking  lot and,  thus,  was in  no  position to          amplify, contradict, or clear up the testimony of  any government          witness.                      Moreover, there is ample  evidence to refute any "frame          up" theory.  Though the informer told the officers that Lewis and          Starks would be leaving through  the front door of Pete  & Mary's          Bar, he  did not tell them that Lewis and Starks would proceed to          the D'Angelo's parking  lot.  Thus,  because he did not  tell the          police where Lewis and Starks would go upon leaving Pete & Mary's          Bar,  the informant could not  have controlled when  or where the          arrest  would occur.  Furthermore, the  police officers never saw          the  informer in  the  D'Angelo's parking  lot.   This  makes  it          virtually impossible  that the  informer planted the  contraband,          especially in light of  the fact that the officers  saw Lewis and          Starks attempting  to hide it.   Thus, we find that  the district          court  did not abuse its discretion  when it denied the motion to          disclose the informer's identity.                         IV.  The missing witness instruction                         IV.  The missing witness instruction                    Lewis and Starks contend  that the district court erred          when  it refused  to  issue a  missing  witness instruction  with          regard to  the confidential informant.   Specifically, they argue          that  the instruction was  necessary because the  informant was a          witness  in  the government's  exclusive control  whose testimony          would  have  been  relevant and  noncumulative.    We review  the          court's  refusal  to give  such an  instruction  for an  abuse of                                        - 18 -          discretion.  See United States v. St. Michael's Credit Union, 880                       ___ _____________    __________________________          F.2d 579, 597 (1st Cir. 1989) (citations omitted).                    "[T]he failure of a party to produce available evidence          that would help decide an issue may justify an inference that the          evidence  would be  unfavorable  to  the  party  to  whom  it  is          available or [to] whom it would ordinarily be expected to favor."          St. Michael's Credit Union, 880 F.2d at 597 (quoting 2 C. Wright,          __________________________          Federal  Practice and Procedure   489 (1982)).  A missing witness          _______________________________          instruction is  appropriate when its proponent  demonstrates that          the absent witness  would have been  (1) "favorably disposed"  to          testify in the government's behalf, (2) "peculiarly available" to          the  government,  or  (3)  in  the  "exclusive  control"  of  the          government.  United States  v. Welch, 15 F.3d 1202,  1214-15 (1st                       _____________     _____          Cir.), cert. denied, 114 S. Ct. 1863 (1994) (citing St. Michael's                 ____________                                 _____________          Credit Union, 880 F.2d at 597).  When deciding whether to issue a          ____________          missing witness  instruction, the  judge should  consider whether          the  witness could  provide "relevant,  noncumulative testimony."          See United States  v. Ariza-Ibarra,  651 F.2d 2,  16 (1st  Cir.),          ___ _____________     ____________          cert. denied, 454  U.S. 895 (1981); see also Welch,  15 F.3d 1215          ____________                        ________ _____          n.17.                      In a similar situation,  we upheld the district court's          refusal  to issue a missing witness instruction with regard to an          undisclosed confidential  informant.  United States  v. Mart nez,                                                _____________     ________          922 F.2d 914, 925 (1st Cir. 1991).  In Mart nez, the informer had                                                 ________          witnessed  prior drug  transactions  in the  apartment where  the          defendants  were eventually arrested.  However, we found that the                                        - 19 -          informer was a mere tipster because he was not present during the          drug  transaction  which  constituted  the  sole  basis  for  the          prosecution  and  thus  "was  not  in  a  position   to  amplify,          contradict,  or clear  up any  inconsistencies in  the government          witnesses' testimony .  . . ."   Id. at 921.   We then  concluded                                           ___          that  a  missing witness  instruction  would  have been  improper          because,  as a mere tipster, the informant was unessential to the          defendant's   right  to  a  fair   trial.    Id.   at  921,  925.                                                       ___          Specifically, we held that  where "a defendant's right to  a fair          trial is not jeopardized by the government's refusal to  disclose          its informant's  identity, the  exercise of that  prerogative can          never  give rise  to  a negative  inference  suggesting that  the          _____          informant's  testimony  would   have  been  unfavorable."     Id.                                                                        ___          (emphasis added).  We further noted that an adverse inference was          especially  unjustified when  the  government's  decision not  to          reveal the  identity of  its confidential informant  was prompted          only by its "concern for the informant's safety and anonymity . .          . ."  Id.                  ___                    We  find  the reasoning  of  the Mart nez  court  to be                                                     ________          controlling here.  As we concluded above, the informer was a mere          tipster whose absence did not jeopardize Lewis' and Starks' right          to a fair trial.  Per Mart nez, this conclusion renders a missing                                ________          witness  instruction  inappropriate.    Furthermore,   given  the          violent background  of Lewis -- three prior convictions for armed          robbery --the government's concern  for the informer's safety was          justified.  Moreover,  as in Mart nez, Starks used  his summation                                       ________                                        - 20 -          to  argue  an   adverse  inference  from   the  absence  of   the          confidential informant.   Id.   Thus, we find  that the  district                                    ___          court did not abuse its  discretion when it refused to issue  the          missing witness instruction.                        V.  Cross-examination of Officer Noone                        V.  Cross-examination of Officer Noone                    Lewis  and  Starks   claim  that  the   district  court          improperly limited their cross-examination  of Officer Noone.  As          an  expert  witness for  the  government,  Officer Noone  offered          testimony regarding the distribution  and value of crack cocaine,          as  well  as the  use  of  weapons by  alleged  dealers of  crack          cocaine.    Lewis  and  Starks  claim  that  the  district  court          improperly refused  to allow them to  cross-examine Officer Noone          regarding the correct  and preferable law-enforcement  procedures          to be used when investigating  and prosecuting a narcotics  case.          Through this cross-examination, Lewis  and Starks were attempting          to  show that  they  were the  victims of  a  sloppy and  botched          investigation.   They claim  that they were  prejudiced by  these          allegedly improper limits because "the jury was unable to realize          the numerous police errors that permeated this case . . . ."                      We  review  a district  court's  limitations on  cross-          examination for an abuse of discretion.  United States v. Twomey,                                                   _____________    ______          806 F.2d 1136, 1139-40 (1st Cir. 1986).   "A defendant's right to          cross-examine  is fundamental  and  demanding  of great  respect,          Alford  v. United States, 282 U.S. 687, 691-92 (1931); however, a          ______     _____________          trial judge retains wide latitude to  impose reasonable limits in          order  to avoid prejudice to a party or confusion of the issues."                                        - 21 -          Twomey, 806 F.2d  at 1139  (citing Delaware v.  Van Arsdall,  475          ______                             ________     ___________          U.S. 673, 679 (1986)).                    The district court gave  Lewis and Starks wide latitude          to  impeach  Officer  Noone's  credibility  with questions  about          general investigatory  procedures.  The  court, however,  limited          Lewis' and  Starks'  cross-examination  when  they  attempted  to          elicit  testimony on  matters that  were  cumulative, irrelevant,          outside  the scope of direct, or outside Officer Noone's personal          knowledge and expertise.                      For  instance, Officer  Noone was  not involved  in the          surveillance and  investigation that led  to the arrest  of Lewis          and Starks.  Thus,  the court was  within its discretion when  it          excluded  questions  on the  actual  procedures  involved in  the          present case.2  The  court also acted within its  discretion when          it excluded a question concerning whether it is preferable to use          controlled drug buys and  electronic surveillance before accusing          a defendant of  being a  drug dealer.   Although Officer  Noone's          knowledge of various  police procedures or lack  thereof may have          been relevant to  impeach his credibility  as an expert  witness,          the district court had  already given the defendants considerable          latitude to accomplish this.  Thus, because these procedures were          not used in this case, this hypothetical was too far removed from          the facts  at hand.   The court  likely decided to  cut off  this                                        ____________________          2    These  questions  included  whether   the  police  had  made          controlled drug  buys or had used  electronic surveillance during          the  investigation  and  how  Starks  was  dressed  when  he  was          arrested.                                         - 22 -          speculative  line of  questioning  because it  was so  marginally          relevant and because the defense  counsel could have proceeded to          ask  Officer Noone  about  dozens of  procedures that  the police          could  have used in this  case, leading to interminable unrelated          speculation and confusion.                      We have  carefully reviewed  Lewis'  and Starks'  other          specific contentions and find them similarly meritless.                                        - 23 -                            VI.  Prosecutorial misconduct                            VI.  Prosecutorial misconduct                    A.  Comment on the "frame-up" theory                    A.  Comment on the "frame-up" theory                    Lewis and Starks assert that  the government improperly          commented  on their failure to  produce any evidence regarding an          alleged "frame  up" orchestrated by  the confidential  informant.          Whether the  prosecutor's comments  were improper is  reviewed de          novo;  whether the  misconduct, if  any, demands  a new  trial is          reviewed  for an abuse of  discretion.  United  States v. Glantz,                                                  ______________    ______          810  F.2d 316,  320 n.2 (1st  Cir.), cert.  denied, 482  U.S. 929                                               _____________          (1987).                    Though  it  is  axiomatic  that  the government  cannot          comment  on a defendant's failure  to take the  stand, Griffin v.                                                                 _______          California,  380  U.S.  609,   615  (1965),  "the  government  is          __________          entitled,  to some extent, to comment on a defendant's failure to          produce  evidence supporting  the  defense theory  of the  case."          Glantz,  810 F.2d at 321  (citing United States  v. Savarese, 649          ______                            _____________     ________          F.2d 83, 87 (1st Cir. 1981)).  In Glantz, the prosecutor remarked                                            ______          that the defendant  had failed to produce  records supporting its          contention that the alleged kickbacks were actually  legitimately          earned legal  fees.  Glantz, 810  F.2d at 320-24.   We found that                               ______          the  arguments  were not  such that  a  jury would  naturally and          necessarily  take them to be  comments on the defendant's failure          to testify.  Rather, the arguments highlighted  weaknesses in the          defense's  theory  --  the primary  weakness  was,  in  fact, the          absence  of business records supporting this theory.  Id. at 322-                                                                ___          23.   Having put forth  a theory in  defense, a defendant  cannot                                        - 24 -          expect  the   government  to  refrain  from   commenting  on  its          deficiencies.  See id. at 321.                         ___ ___                    Here,  Lewis  and  Starks  assert that  the  government          improperly commented on  the lack of evidence suggesting that the          informer had framed Lewis and  Starks by planting the  contraband          in the parking lot.  In closing, the government argued:                      Now, you heard at  the beginning of  this                      case,  the very  beginning  of this  case                      . . .   that    somebody   framed   these                      defendants.   That's  what was  stated to                      you.    Somebody  framed the  defendants.                      Now,  what  are  you  hearing?     You're                      hearing,  well  --  first  of  all,  what                      evidence has there been  on that?   None.                      What evidence has come to you wherein you                      would  say,  "Yeah,  I  think  they  were                      framed?"          Lewis  and Starks contend that  this was an impermissible comment          on their failure to testify.  We disagree.  Both Lewis and Starks          raised  the   possibility  that  they  had  been  framed  by  the          confidential informant.   Starks raised the  "set up" defense  in          his opening  statement.   Though Lewis never  explicitly asserted          it,  he insinuated  that  the confidential  informant had  indeed          planted  the contraband.3  Lewis  and Starks failed  to offer any          evidence whatsoever that would even remotely support this theory.          Given  this, we believe the government's  closing statement was a          permissible  comment  on  the  weakness of  the  frame-up  theory                                        ____________________          3   This insinuation is most clear in Lewis' cross-examination of          Officer  Leedberg.     When  Officer  Leedberg   stated  that  he          frequently  searches informants  prior  to  a  "controlled  buy,"          Lewis'  counsel asked, "And that's  to make sure  that the person          that  you're  dealing  with   [the  informant]  is  not  planting          contraband on the people  you're going to arrest, is  that right,          sir?"                                        - 25 -          alleged  by  the defense  and  did  not constitute  prosecutorial          misconduct.                                        - 26 -                    B.  The "paid informant" issue                    B.  The "paid informant" issue                    Starks   contends   that   the  government   improperly          undermined   his  counsel's   credibility  when   the  government          demonstrated at trial that the informant was not a paid informant          after the government had previously represented to Starks that he          was a paid informant.   In a pretrial conference,  the government          stated that it "believe[d] . . . the Brockton Police  do not have          the  confidential   informant  signed  up  as   a  paid,  working          informant; that on  occasion they give  him a few bucks  here and          there and he  provides . . . information to the Brockton Police."          Starks  asserts that  his  counsel relied  on  this statement  in          preparing  his trial  strategy.   Apparently, Starks  intended to          demonstrate  that  the  informant  had a  monetary  incentive  to          "produce" criminals  for  the police.    Starks claims  that  the          government  undermined his  credibility and,  indeed, his  entire          trial strategy,  when it elicited testimony  from Brockton Police          officers that  these officers  had never paid  the informant  and          that they were not aware that any other law enforcement personnel          had made such payments.                    As a preliminary matter, we  note that Starks failed to          raise this objection at trial in a specific and timely manner; he          neither objected nor moved for a mistrial or new trial -- rather,          he  merely raised some  vague concerns  in a  sidebar conference.          Consequently,  we must review for plain error.   Fed. R. Crim. P.          52(b); see also United States v. Romero, 1994 WL 456857, *10 (1st                 ________ _____________    ______          Cir.).                                          - 27 -                    We  will find  plain error  only when  (1) there  is an          "error,"  (2) that is "clear"  or "obvious" and  (3) that affects          "substantial rights."  United  States v. Olano, 113 S.  Ct. 1770,                                 ______________    _____          1776-77 (1993);  United States v. Col n-Pag n, 1 F.3d 80, 81 (1st                           _____________    ___________          Cir.  1993).  In  this case, there  is no error,  much less plain          error.  Starks fails  to express any legal theory  which supports          his  claim that  he was denied  a fair trial.   Consequently, per          standard appellate procedure,  we are tempted to deem  it waived.          United  States v.  Zannino,  895 F.2d  1,  17 (1st  Cir.),  cert.          ______________     _______                                  _____          denied, 494 U.S. 1082 (1990).  As we have previously noted, "[i]t          ______          is not enough  to mention an argument  in the most skeletal  way,          leaving the court to  do the counsel's work, create  the ossature          for the  argument, and put flesh  on its bones."   Id.  Moreover,                                                             ___          and  more importantly,  Starks'  argument  is  factually  infirm.          While Starks  contends that his  trial strategy was  to discredit          the informant by demonstrating that he  had a monetary incentive,          he neglected  to pursue this theory  during his cross-examination          of all  the police officers  who took the  stand.  Not  only does          this  undermine  Starks'  contention  that  this  was  his  trial          strategy, it  also demonstrates  that  the government's  pretrial          statements might  have been  factually accurate.   The government          stated that  Brockton Police  occasionally gave the  informant "a          few bucks here and there."  Thus, by failing to explore this line          of questioning  thoroughly, Starks  did not demonstrate  that the                                        - 28 -          government's pretrial statement  was indeed false.4   In sum,  we          find that  Starks has  asserted no  factual or  legal proposition          that satisfies the plain error standard.                          VII.  Admission of the photographs                          VII.  Admission of the photographs                    Lewis  and  Starks  assert  that  the  district   court          improperly  admitted an "unduly suggestive array of photographs."          Over objection, the court admitted a  folder consisting of Lewis'          and Starks' booking photographs  stapled alongside photographs of          the  guns and  cocaine discovered  near them.   Lewis  and Starks          contend,  and  with  some merit,  we  think,  that  the array  of          photographs was unfairly prejudicial  because it suggested an as-          yet unproven  connection between them  and the contraband.   That          is, the arrays depicted the ultimate legal conclusion, that Lewis          and  Starks   possessed  cocaine  and  firearms,   that  was  the          government's burden to prove.                      Evidence is relevant  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.  Relevant          evidence is generally admissible.  Fed. R. Evid. 402.  However, a          judge may  exclude otherwise relevant evidence  if "its probative          value  is  substantially  outweighed  by  the  danger  of  unfair          prejudice . . . ."  Fed. R. Evid. 403.  We review a trial court's                                        ____________________          4  Moreover, we note  that this was merely a statement  of belief          by the government.  Starks never stated that  he intended to rely          on it; further,  he did not  attempt to confirm it  with pretrial          discovery.   In short, Starks did very little to shore up what he          claims was his primary trial strategy.                                        - 29 -          Rule  401/403 balancing test for an abuse of discretion, and only          in "extraordinarily  compelling circumstances" will we  reverse a          district court's "on-the-spot  judgment" concerning the probative          value and unfair effect of the proffered evidence.  United States                                                              _____________          v.  Rodr guez-Estrada,  877 F.2d  153,  155-56  (1st Cir.  1989).              _________________          While  we are  concerned with  the government's trial  tactic, we          find that the error, if any, was harmless in light  of the strong          case  presented  by the  government.5    United  States v.  Ruiz-                                                   ______________     _____          Batista, 956 F.2d 351, 352-53 & n.2 (1st Cir.), cert. denied, 113          _______                                         ____________          S. Ct. 105  (1992) (noting that  reversal is inappropriate  where          other evidence of guilt renders an evidentiary error harmless).                      Here,  the  photos  were   relevant.    They  show  the          condition of the evidence  when it was recovered.  However, we do          not conclude whether the danger of unfair  prejudice presented by          the  photographic array  substantially  outweighed its  probative          value  because  the error,  if any,  in  admitting the  array was          ultimately harmless.   The  array may have  prematurely connected          Lewis  and Starks  to  the contraband.    However, the  jury  was          informed of how the array was compiled.  Thus, it  could not have          concluded that  Lewis and Starks possessed  the contraband simply          because their photographs were  stapled alongside photographs  of          the  contraband.   Further, the  government eventually  presented                                        ____________________          5  We think that prosecutors ought to bear in mind that where, as          here, the government has a strong case, such arguably prejudicial          tactics  do not help  the government but do  create the risk that          sufficiently  egregious  conduct   will  constitute  grounds  for          reversal.   Conversely, where the case is a close one, error will          not be deemed harmless and the conviction will be reversed.                                        - 30 -          overwhelming evidence to connect Lewis and Starks to the guns and          cocaine  depicted in the array.   Lewis and  Starks were standing          alongside  the   vehicles  under  which  the   police  found  the          contraband.   Moreover,  Officer Smith  testified  that,  moments          before the  arrest,  he  saw both  Lewis and Starks  make furtive          movements  as if they were attempting to hide something under the          vehicles.  Consequently, we do not find any reversible error.                    VIII.  Failure to produce exculpatory evidence                    VIII.  Failure to produce exculpatory evidence                    Lewis  and  Starks  contend that  the  Brockton  Police          Department mishandled their case in so severe a fashion that they          were denied a  fair trial.   Specifically, they  allege (1)  that          they were denied access to possibly exculpatory evidence when the          Brockton  Police erased  audio  tapes of  the events  surrounding          their arrest, (2) that  they were denied an opportunity  to prove          their frame-up theory when the Brockton Police delayed submitting          the  contraband for  fingerprinting,  and (3)  that the  Brockton          Police colluded to produce a false and inaccurate police report.                                A  defendant has  an established  due process  right to          request  and receive  all material  evidence in  the government's          possession.   Brady v.  Maryland, 373  U.S. 83,  87  (1963).   We                        _____     ________          recently    discussed    the   framework    of    a   defendant's          constitutionally guaranteed access to evidence.  United States v.                                                           _____________          Femia, 9 F.3d 990,  993 (1st Cir. 1993).  This framework reflects          _____          "the  difficulty  of  developing  rules  to  deal  with  evidence          destroyed   through   prosecutorial   neglect    or   oversight."                                        - 31 -          California  v. Trombetta,  467 U.S. 479,  486 (1984).   "Whenever          __________     _________          potentially exculpatory evidence is permanently lost, courts face          the treacherous  task of divining  the import of  materials whose          contents  are unknown  and,  very  often,  disputed."    Id.    A                                                                   ___          defendant  who  seeks  to   suppress  evidence  formerly  in  the          government's possession  must show that (1)  the government acted          in bad faith  when it  destroyed the evidence,  (2) the  evidence          possessed an apparent exculpatory  value before it was destroyed,          and (3) the  missing evidence is, to  some extent, irreplaceable.          Femia, 9 F.3d at  993-94; Trombetta, 467 U.S. at  488-89; Arizona          _____                     _________                       _______          v. Youngblood, 488 U.S. 51, 58 (1988).  As we noted in Femia, the             __________                                          _____          dispositive factor is often whether the defendant can demonstrate          that the government acted in bad faith.  Femia, 9 F.3d at 994.                                                   _____                    The  Internal  Affairs  Office of  the  Brockton Police          records all radio transmissions  made from police vehicles.   The          tapes  of the  transmissions between  the officers  involved with          Lewis' and Starks' arrest  were subsequently recorded over before          Lewis and  Starks had a  chance to review  them.  With  regard to          these  surveillance tapes,  Officer  Leedberg  offered  testimony          concerning  the  routine  procedures  followed  by  the  Brockton          police.  Generally, the Brockton Police Department only preserves          audio  tapes of radio communications for one or two months before          recording over them  unless the  tapes pertain to  a major  crime          such as murder.   Lewis and Starks proffered  no evidence to  the          trial  court  that would  even remotely  suggest that  the police          acted in bad faith when they reused the audio tapes in accordance                                        - 32 -          with their established routine.                      Lewis and  Starks also assert that  the Brockton police          made  a crucial error when they  allegedly delayed submitting the          contraband for fingerprint analysis.   Lewis and Starks, however,          fail to  allege any  governmental conduct that  demonstrates that          the  alleged delay  was  due to  bad faith  rather than  a normal          error.   Moreover, they do not make a colorable argument that the          alleged  delay destroyed  evidence with  an apparent  exculpatory          value.   Starks  asserts  that the  alleged  delay cost  him  the          opportunity to  prove his  frame-up  theory by  showing that  the          confidential  informer's  fingerprints  were  on  the contraband.          However, as we discussed in part III, there was ample evidence to          refute  and  none to  support  the theory  that  the confidential          informer framed Lewis and Starks.                    Finally,  Starks   claims  that  the   Brockton  Police          colluded to produce  a false  and inaccurate police  report.   In          support of this,  he points  to two alleged  inaccuracies in  the          report.   First,  the  report states  that  on August  15,  1992,          Officer  Leedberg  conversed with  the  informer in  person.   At          trial, Officer Leedberg testified that this conversation occurred          by telephone.  Second, Starks states the police  report conflicts          with  the trial testimony regarding  whether the guns and cocaine          were found under two  separate vehicles or whether they  were all          found  under   the  brown  Buick.    Starks,  however,  fails  to          demonstrate that these alleged factual inaccuracies resulted from          bad  faith.   He merely  states that  "these errors  poisoned the                                        - 33 -          judicial process"  and thus constitute grounds for  reversal.  We          cannot agree.   No police investigation is  entirely perfect, and          minor  inconsistencies do  not  support his  contention that  the          Brockton  Police used bad faith  and colluded to  produce a false          and inaccurate police report.                    Thus, we  find no reversible error  in the government's          alleged mishandling of the evidence.                      IX.  The government's peremptory challenge                      IX.  The government's peremptory challenge                    Lewis   and  Starks   contend  that   the  government's          peremptory challenge of a black juror was racially motivated and,          consequently,  violated their rights  under the  Equal Protection          Clause  of the United States Constitution.   Starks also contends          that  the court further erred in refusing his request to question          the juror on his ability to render an impartial verdict.                     In Batson,  the Supreme  Court delineated  a three-step                       ______          process to  determine whether the government's  peremptory strike          was motivated  by  an  impermissible  racial  bias.    Batson  v.                                                                 ______          Kentucky, 476 U.S. 79,  96-98 (1986).  First, the  defendant must          ________          make a  prima facie showing  of racial  discrimination.  Id.   To                  _____ _____                                      ___          clear this  initial hurdle,  the defendant  must first  show that          "the  prosecutor has  exercised peremptory  challenges  to remove          from the venire members of the defendant's race."  Id.  Second,                                                             ___                      the defendant is entitled  to rely on the                      fact  .  . .  that  peremptory challenges                      constitute a jury  practice that  permits                      "those to  discriminate who are of a mind                      to  discriminate."  Avery v. Georgia, 345                                          _____    _______                      U.S.  559,  562  (1953).    Finally,  the                      defendant must show that these  facts and                      any other relevant circumstances raise an                                        - 34 -                      inference that the  prosecutor used  that                      practice to  exclude the veniremen  . . .                      on  account   of   their  race.      This                      combination of factors in  the empaneling                      of  the  petit  jury  . .  .  raises  the                      necessary    inference   of    purposeful                      discrimination.          Id. at  96.  The  court should  consider all relevant  factors to          ___          determine  whether the  defendant  has made  the requisite  prima          facie showing.  Id. at 96-97.                          ___                    Once the  defendant  successfully clears  this  initial          hurdle,  the  prosecutor  must  then  articulate  a  race-neutral          explanation  for  striking the  juror  in  question, though  "the          prosecutor's explanation  need not  rise to the  level justifying          exercise of a challenge for cause."  Id. at 97.   The trial court                                               ___          then must decide whether the defendant has established purposeful          discrimination.  Id.                           ___                    In  the  case at  bar, we  are  dubious that  Lewis and          Starks have  alleged facts  necessary to establish  the requisite          prima facie  case.  Regardless  of this, we are  certain that the          ___________          prosecutor's  race-neutral explanation  negates any  inference of          purposeful discrimination.                      As to  the first issue,  the venire started  with three          black jurors.   The government and Starks each excused one of the          black jurors with  peremptory challenges.  The third was selected          for  trial despite  the fact  that the  government still  had two          peremptory  challenges remaining.    In light  of  the fact  that          Starks removed one  black juror and  that the government  allowed          the  court to  empanel the  third black  juror, we  doubt whether                                        - 35 -          Lewis  and  Starks have  alleged  facts sufficient  to  raise the          necessary prima  facie  inference of  purposeful  discrimination.                    ____________          See  Chakouian  v.  Moran, 975  F.2d  931,  934  (1st Cir.  1992)          ___  _________      _____          (holding that  defendant failed  to demonstrate prima  facie case                                                          ____________          absent any evidence as  to whether other black members  of venire          were  called and seated as  jurors).  Regardless,  we are certain          that  the  prosecutor  articulated  a  satisfactory  race-neutral          explanation  for the  challenge.   The  prosecution informed  the          court  that  it  challenged the  juror  because  he  worked as  a          security guard at Straughter Security, a firm which the Bureau of          Alcohol, Tobacco and Firearms ("ATF") was  actively investigating          for possible  firearms offenses.  The  ATF investigation entailed          an "active federal presence" at the company as well as grand jury          testimony by certain security guards.  Under these circumstances,          the government  was rightfully concerned that  the security guard          may harbor certain  hostilities due to  the investigation of  his          employer  and was  entitled to  question  the juror's  ability to          render  an  impartial verdict.    Consequently,  the use  of  the          peremptory challenge  was permissible.  Further, in  light of the          government's  satisfactory explanation, the  district court acted          well within  its discretion when  it refused  Starks' request  to          continue questioning the juror.                 X.  Refusal to stipulate that defendants were felons                 X.  Refusal to stipulate that defendants were felons                    The government charged both Lewis and Starks with being          a  felon-in-possession  of a  firearm in  violation of  18 U.S.C.            922(g)(1).  To prove this charge, the government must show that                                        - 36 -          (1)  the  defendant  was   previously  convicted  of  an  offense          requiring imprisonment  exceeding one  year and (2)  he knowingly          possessed a firearm in or affecting interstate commerce.   United                                                                     ______          States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992).   Lewis had          ______    _____          three  prior  convictions  for   armed  robbery  and  offered  to          stipulate that he was a felon to satisfy the first element of the          statute, presumably to keep the nature of his prior felonies from          the  jury.   Starks  had  a  prior  state  court  conviction  for          possession  of cocaine  with  intent to  distribute,  and made  a          similar offer  to stipulate  that he was  a felon.   The district          court did not require  the government to accept either  Lewis' or          Starks' proposed stipulation but rather allowed the government to          introduce evidence of the nature of Starks' conviction and one of          Lewis' convictions.   The government then  introduced a certified          copy of Starks' prior  conviction for possession of cocaine  with          intent  to  distribute and  Lewis'  prior  conviction for  "armed          robbery  while  masked."   Though  the  government mentioned  the          convictions briefly  in its  opening and closing  statements, the          court   prevented  the   government  from   introducing  evidence          concerning the facts surrounding the convictions.                      Lewis  and Starks contend that, in  light of our recent          decisions in  Tavares and Melvin, the  district court erroneously                        _______     ______          refused to accept their offers to stipulate that they were felons          under the statute.  United States v. Tavares, 21 F.3d 1 (1st Cir.                              _____________    _______          1994)(en  banc); United States v.  Melvin, 27 F.3d  703 (1st Cir.                           _____________     ______          1994).    They  further  contend that  this  refusal  constitutes                                        - 37 -          reversible  error.    We  agree  with  Lewis'  and  Starks' first          contention but  find the  error to  be harmless  in light of  the          overwhelming evidence of guilt.                    Before Tavares, the  government, even in the face of an                           _______          offer to stipulate,  was allowed  to "present evidence on the one          felony necessary to prove  the crime charged."  United  States v.                                                          ______________          Collamore, 868  F.2d 24, 28 (1st  Cir. 1989).  It  was under this          _________          rubric that the  district court allowed the government  to reject          the  offer to  stipulate.   However, we  recently revisited  this          issue  and determined that when a defendant is charged with being          a felon-in-possession of a firearm, evidence of the nature of the          prior conviction  is not admissible  unless special circumstances          establish  that the  relevance of  the evidence  is "sufficiently          compelling to survive the  balancing test of Fed. R.  Evid. 403."          Tavares, 21 F.3d at 5; Melvin, 27 F.3d at 707.6            _______                ______                    In light of the  government's concession that this case          does not present the  "unusual circumstances" necessary to depart          from the  general rule  announced in  Tavares, we  must determine                                                _______          whether the  error was harmless.   To do so, we  "must assess the          record  as  a  whole to  determine  the  probable  impact of  the          evidence on the  jury."  Melvin, 27  F.3d at 708  (quoting United                                   ______                            ______          States  v. Spinosa, 982 F.2d  620, 630 (1st  Cir. 1992) (citation          ______     _______          omitted)).  As we discussed in part VII, the government presented          overwhelming  and essentially  uncontradicted evidence  of Lewis'                                        ____________________          6  Because  we decided Tavares  while the present case  was still                                 _______          pending on direct review, we  apply it here.  Melvin, 27  F.3d at                                                        ______          706 n.4.                                        - 38 -          and Starks' guilt.   Lewis and Starks  were both caught with  the          proverbial  "smoking gun."   The  police recovered  the guns  and          cocaine  moments after  witnessing  Lewis and  Starks attempt  to          discard the  contraband under  cars parked  alongside them.   The          conclusiveness  of this  evidence  renders harmless  the district          court's  erroneous  admission  of  the nature  of  the  predicate          felony.                                        - 39 -                           XI.  The length of the sentences                           XI.  The length of the sentences                    A.  Base offense level                    A.  Base offense level                    Lewis  and  Starks  contend  that  the  district  court          improperly aggregated the controlled substances that were held by          them individually when the  court determined the appropriate base          offense level ("BOL").  This contention is erroneous.                      The  determinative  factor  for  sentencing  under  the          guidelines is the  quantity of drugs.  United States  v. Reyes, 3                                                 _____________     _____          F.3d  29, 31  (1st  Cir. 1993).    For sentencing  purposes,  the          government must  prove the  quantity  by a  preponderance of  the          evidence.  Id.  This  quantity is the sum of the  charged conduct                     ___          plus  the defendant's "relevant  conduct."  Id.   In the  case of                                                      ___          jointly undertaken  criminal activity  (regardless  of whether  a          conspiracy  was   charged),   relevant  conduct   includes   "all          reasonably   foreseeable  acts   and  omissions   of  others   in          furtherance  of the  jointly  undertaken activity."   U.S.S.G.             1B1.3(a)(1)(B).   Determining quantity under the  guidelines is a          matter entrusted to  the sound discretion of  the district court.          United States  v.   Osorio, 929  F.2d 753,  764 (1st  Cir. 1991).          _____________     ________          Thus, we will only reverse on a finding of clear error.  Id.                                                                   ___                    Lewis and Starks assert  that the court committed clear          error when it found  that they acted in concert  and consequently          aggregated  the amount  of cocaine  that each  held individually.          They  are  wrong.    The  evidence,  especially  the  Presentence          Investigation  Report  ("PSR"),  supports  the  district  court's          decision  that Lewis and Starks were engaged in a joint activity.                                        - 40 -          Lewis  and Starks  were together  at  Pete &  Mary's Bar  for two          consecutive nights.  On the second night, they both brought along          loaded  handguns  and similar  containers of  identically wrapped          crack cocaine.  When the police approached, Lewis and Starks both          discarded their  contraband under parked cars.   Moreover, Starks          attempted to create a  diversion by waiving his arms,  presumably          to  give Lewis  more time to  stash his contraband.   These facts          support a finding  that Lewis and Starks were engaged  in a joint          activity such  that the court  could correctly attribute  to each          defendant  the cocaine  held by  the other  under the  heading of          relevant conduct.                    B.  Starks' Criminal History Category                    B.  Starks' Criminal History Category                    Starks also  contends that the district  court made two          errors when  it calculated his criminal  history, thus increasing          his exposure under  the guidelines.   He first  asserts that  the          court improperly assessed two points for  a prior drug conviction          because  he served less than the guideline minimum prison term of          sixty  days.  Next, he  argues that the  court improperly counted          his "admission to  sufficient facts"  for a battery  on a  police          officer.   He  contends that  scoring this  charge was  erroneous          because  no finding  of guilt  was  ever made  and  the case  was          ultimately dismissed.                      We employ  a dichotomous  process to review  a district          court's application of the  sentencing guidelines.  United States                                                              _____________          v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).  First, we examine             _______          the  scope  of a  guideline provision  de  novo.   Id. (citations                                                 ________    ___                                        - 41 -          omitted).  Once we have determined whether the relevant guideline          provision  applies, we  review the  factfinding process  only for          clear error.  Id.                        ___                    To determine a sentence under the guidelines, the court          must first  calculate the defendant's  criminal history category.          This  system is  based  on the  premise  that "repeated  criminal          behavior  will  aggravate  the  need  for  punishment  with  each          recurrence."  U.S.S.G.   4, intro. comment.                      On  a prior  drug conviction,  Starks was  sentenced to          serve five months in a House of Correction.  The execution of his          sentence  was stayed while he  appealed.  The  court then granted          him credit for 39 days served and released him on parole.  Starks          asserts that the district  court improperly assessed two criminal          history  points for this  conviction because he  served less than          the  sixty day  sentence  specified  in  the  guidelines.      We          disagree.   The guidelines instruct  the court to  add two points          for "each prior sentence of imprisonment of at least sixty days .                          ________________________          . .  ."  U.S.S.G.    4A1.1(b) (emphasis added).   The application          notes clarify  any possible  ambiguity by stating  that "criminal          history  points are  based on  the sentence  pronounced, not  the          length  of time  actually  served."   U.S.S.G.    4A1.2, comment.          (n.2); see also United  States v. Priest, 6 F.3d 1201,  1215 (7th                 ________ ______________    ______          Cir.  1993); United States v. Shinners, 892 F.2d 742, 743-44 (8th                       _____________    ________          Cir. 1989); United States v. Altman, 901 F.2d 1161, 1166 (2d Cir.                      _____________    ______          1990).  Here, the court had sentenced Starks to five months, well          over the  sixty day minimum in the guidelines.  Thus, we find the                                        - 42 -          district court's assessment oftwo criminal history points proper.                    We  will now turn to the second issue.  Starks contends          that the district court should not have counted his "admission to          sufficient facts"  because it was not  a diversionary disposition          that involved a judicial  finding of guilt or admission  of guilt          in open  court.7  We  decline to rule  on this issue  because our          decision  cannot effect the length of Starks' sentence.                    The  district  court assessed  Starks  a  total of  six          criminal  history points,  placing him  in category  three.   See                                                                        ___          U.S.S.G. ch. 5  pt. A.  To  achieve a sentence  reduction, Starks          needs  to shed three points from his criminal history score; this          would drop him down to category 2.  Id.   The district court only                                              ___          assessed  one point  for  this "admission  to sufficient  facts."          Thus, even if the assessment  were improper, Starks would  remain          in category three, and his sentence would remain unchanged.                       XII.  Lewis' challenges to his sentence                       XII.  Lewis' challenges to his sentence                    A.  Lewis' Equal Protection challenge                    A.  Lewis' Equal Protection challenge                    Lewis contends that  the Federal Sentencing Guidelines'          distinction  between  the "crack"  and  powder  forms of  cocaine          violates  the  Equal  Protection  Clause  of  the  United  States                                        ____________________          7    Diversionary  dispositions   resulting  from  a  finding  or          admission of guilt are counted  as sentences under the guidelines          even  if  a  conviction is  not  formally  entered.   U.S.S.G.             4A1.2(f).    "Section  4A1.2(f)  requires  counting  prior  adult          diversionary   dispositions   if   they   involved   a   judicial          determination  of guilt or an  admission of guilt  in open court.          This reflects a policy that defendants who receive the benefit of          a rehabilitative  sentence and  continue to commit  crimes should          not be treated with further leniency."  U.S.S.G.   4A1.2 comment.          (n.9).                                        - 43 -          Constitution.   Specifically,  he asserts  that the  distinction,          though facially  neutral, triggers heightened scrutiny  under the          Feeney test because it has both a racially  discriminatory impact          ______          and intent.  Personnel Administrator of Mass. v. Feeney, 442 U.S.                       ________________________________    ______          256, 272 (1979).  Alternatively, he contends that the distinction          fails rational basis scrutiny.                    We recently addressed this  issue and, like every other          circuit that has done so, found the distinction in the guidelines          between crack  cocaine and  powder cocaine to  be constitutional.          See  United States  v. Singleterry,  29 F.3d  733, 739  (1st Cir.          ___  _____________     ___________          1994).   In Singleterry, we  found the distinction  did not merit                      ___________          strict scrutiny because there  was insufficient evidence that the          distinction "was motivated by any racial animus or discriminatory          intent  on  the  part  of  either  Congress   or  the  Sentencing          Commission."   Id. at 741. (quoting United States v. Frazier, 981                         ___                  _____________    _______          F.2d 92,  95 (3d Cir.),  cert. denied,  113 S. Ct.  1661 (1993)).                                   ____________          The  distinction  also survived  rational basis  analysis because          "Congress  had before  it sufficient  . .  . information  to make          distinctions that would justify  . . . more severe  sentences for          trafficking  in  or using  cocaine  base  or crack  than  cocaine          itself."   Singleterry, 29 F.3d at 740 (quoting Frazier, 981 F.2d                     ___________                          _______          at 95).  Accordingly, this challenge fails.                    B.  Lewis' selective prosecution claim                    B.  Lewis' selective prosecution claim                    Lewis asserts  that the government adopted  his case to          federal court solely because  of his racial status.   In essence,          he claims that he was selectively prosecuted because he is black.                                        - 44 -                    A   selective  prosecution   claim  fails   unless  the          defendant   establishes  that   his   prosecution  results   from          "intentional  and purposeful discrimination."   United  States v.                                                          ______________          Bassford, 812 F.2d 16, 19 (1st Cir.), cert. denied, 481 U.S. 1022          ________                              ____________          (1987).   This requires that the defendant demonstrate, "at least          prima facie, (1) that,  while others similarly situated  have not          ___________          generally been proceeded  against because of conduct of  the type          forming the basis of the charge against him, he has  been singled          out for prosecution, and (2) that the government's discriminatory          selection of him for  prosecution has been invidious or  based in          bad faith, i.e., based  upon such impermissible considerations as          race . .  . ."  Id.  (quoting United States v.  Berr os, 501 F.2d                          ___           _____________     _______          1207, 1211 (2d Cir. 1974)).                      Lewis  has failed  to proffer  any factual  allegations          that would substantiate his selective prosecution claim.  Rather,          Lewis merely  points out  that the government's  adoption of  his          case  to federal  court  greatly increased  his potential  prison          sentence.   Lewis  has  not demonstrated  that others,  similarly          situated, were not proceeded  against or that he was  singled out          for  impermissible  reasons.    Lewis' crimes  subjected  him  to          prosecution  in  both federal  and  state  court.    The  federal          government chose to prosecute him; we cannot conclude that he was          selectively  prosecuted solely  because  he was  only charged  in          federal court.                      C.  Lewis' request for downward departure                    C.  Lewis' request for downward departure                                        - 45 -                    Lewis argues that  the allegedly unusual  circumstances          of his case entitle  him to a downward  departure from the  range          specified  in the guidelines.   We lack jurisdiction  to review a          district court's  refusal to depart downward  from the sentencing          range so long as the district court was aware of its authority to          order  such a departure.  United  States v. Lombardi, 5 F.3d 568,                                    ______________    ________          571-72  (1st Cir. 1993) (citing United States v. Lauzon, 938 F.2d                                          _____________    ______          326, 330  (1st Cir.), cert. denied, 112 S. Ct. 450 (1991)).  This                                ____________          area  of the  law is  well  settled.   See id;  United States  v.                                                 ___ __   _____________          Castiello, 915 F.2d  1, 6 (1st Cir.), cert. denied, 498 U.S. 1068          _________                             ____________          (1991); United  States v. Tucker, 892  F.2d 8, 9 &  n.2 (1st Cir.                  ______________    ______          1989).   However,  it  is unclear  from  the record  whether  the          district  court concluded  that it  lacked authority  to  order a          downward departure or simply  refused to exercise its discretion.          Consequently,  we  assume that  the  district  court believed  it          lacked the power to depart from the guidelines and review whether          this assessment was accurate.                     In  United States  v. Rivera,  we reviewed  the factors                        _____________     ______          that  often warrant  departure, the  factors that  are ordinarily          irrelevant to  departure decisions, and those  that are forbidden          in determining whether to depart.  994 F.2d 942, 948-49 (1st Cir.          1993).   Lewis  contends that  several factors  entitle him  to a          downward  departure.   First,  Lewis asserts  that departure  was          warranted because  the distinction  between the crack  and powder          forms  of  cocaine in  the sentencing  guidelines has  a racially          disparate impact.   He  also claims that  departure is  warranted                                        - 46 -          because of the  "discriminatory adoption of  his case to  federal          court,"  alleged evidentiary errors  and prosecutorial misconduct          in  the  course  of  the  trial,  and the  fact  that  he  is  an          uneducated,  young black man.  We have already discussed the lack          of  foundation for  Lewis'  discriminatory prosecution  claim, so          this was  not proper grounds  for departure.   The trial  was not          sullied by  any prejudicial  evidentiary errors or  prosecutorial          misconduct -- thus,  these allegations do not justify  a downward          departure.  As to the other factors asserted by Lewis,  they fall          into either  the discouraged or forbidden  categories reviewed by          the Rivera  opinion.  Consequently, the  district court correctly              ______          refused  to order a downward departure  when it calculated Lewis'          sentence.                      D.  The "crime spree" contention                    D.  The "crime spree" contention                    Lewis  asserts  that  the  district  court  erroneously          determined that he was  an Armed Career Criminal under  18 U.S.C.            924(e)(1), the  Armed Career  Criminal Act (the  "ACCA").   The          ACCA  provides  enhanced punishment  for  violating  18 U.S.C.             922(g)  -- being  a felon in  possession of  a firearm  -- if the          defendant  has  three  separate  prior  convictions  for  violent          felonies or serious  drug offenses.  18 U.S.C.   924(e)(1).  Such          defendants  are considered  armed career  criminals.   U.S.S.G.            4B1.4.  The district  court sentenced Lewis under the  ACCA after          it  determined that  his  three prior  armed robbery  convictions          satisfied its requirements.  Lewis contends  that his three prior          convictions were  not separate occurrences but,  rather, were all                                        - 47 -          part of a single, systematic course of conduct, or "crime spree,"          that  should only  count as  one offense  under the  ACCA.   Once          again, he is wrong.                    Lewis  first robbed a gas station in March, then a cafe          in July,  and last a motel in August.   Gas, food, and lodging --          the connection would be apparent if the defendant were on a trip.          However,  the facts that Lewis  robbed these places  over a five-          month time frame and used different weapons in each robbery amply          support the  district court's  determination that the  crimes did          not  constitute a  single  crime spree.    See United  States  v.                                                     ___ ______________          Harris,  964 F.2d  1234, 1237  (1st Cir.  1992) (two  assault and          ______          battery  convictions  involving  same  victim  but  occurring two          months apart); United States  v. Gillies, 851 F.2d 492,  497 (1st                         _____________     _______          Cir.) (armed  robbery convictions  for offenses at  two different          drug  stores on  consecutive days,  for which  defendant received          concurrent sentences), cert. denied, 112 S. Ct. 1694 (1992).                                 ____________                    XIII.  Redaction of references to cocaine base                    XIII.  Redaction of references to cocaine base                    Lewis  argues  that   the  district  court  erroneously          refused his request to  strike the words "cocaine base"  from the          indictment.   21 U.S.C.   841 makes it a federal crime to possess          with  an intent to distribute any  of the "controlled substances"          listed  in  21  U.S.C.    812.    Though  coca  leaves and  their          derivatives are listed as controlled substances, the term cocaine          base only appears in  the penalty provision of  21 U.S.C.    841.          Thus,  Lewis contends, at trial the term is irrelevant and highly          prejudicial surplusage  which should have been  stricken from the                                        - 48 -          indictment and, consequently, the  district court's failure to do          so precluded a fair trial.  We cannot agree.                    Under  Federal  Rule of  Criminal  Procedure  7(d), the          defendant  may move  to  strike surplusage  from the  indictment.          This  serves  to protect  the  defendant  "against immaterial  or          irrelevant allegations in an indictment, . . . which may . . . be          prejudicial."  Fed.  R. Crim. P.  7(d), advisory committee  note;          United States v.  Fahey, 769  F.2d 829, 841-42  (1st Cir.  1985).          _____________     _____          This  decision rests  in  the sound  discretion  of the  district          court.  Id. at 842 (citations  omitted).  Here, the term  cocaine                  ___          base  was  neither  irrelevant  nor unfairly  prejudicial.    The          indictment served as notice to Lewis of the nature of the charges          against  him.  Indeed, identifying  the substance as cocaine base          was an essential element of the government's  case against Lewis.          Further,  though the  term crack  cocaine probably  carries heavy          social baggage, Lewis'  brief lacks  any explanation  of how  the          term  unfairly prejudiced  him.   We  find this  claim altogether                ________          meritless.                    We have considered the other claims of Lewis and Starks          and find them equally meritless.                    Affirmed.                    ________                                        - 49 -
