
USCA1 Opinion

	




          April 25, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1039                                    UNITED STATES,                                      Appellee,                                          v.                                  WILLIAM RODRIGUEZ,                                Defendant - Appellant.                                 ____________________          No. 93-1040                                    UNITED STATES,                                      Appellee,                                          v.                                     ELVIS MATOS,                                Defendant - Appellant.                                 ____________________          No. 93-1225                                    UNITED STATES,                                      Appellee,                                          v.                                    JOSEPH TORRES,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               John C. Doherty, by Appointment of  the Court, for appellant               _______________          William Rodr guez.               Eileen  M.  Donoghue,  by  Appointment  of  the  Court,  for               ____________________          appellant Elvis Matos.               George L. Garfinkle,  with whom Jeffrey A.  Denner, James P.               ___________________             __________________  ________          Brady and Perkins,  Smith &  Cohen, were on  brief for  appellant          _____     ________________________          Joseph Torres.               Geoffrey E. Hobart, Assistant  United States Attorney,  with               __________________          whom Donald K. Stern, United States Attorney, and George W. Vien,               _______________                              ______________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                    Per   Curiam.     Appellants  Joseph   Torres,  William                    Per   Curiam.                    ____________          Rodr guez,  and Elvis  Matos  each appeal  their convictions  for          conspiring  to possess cocaine with intent  to distribute and for          possession   with  intent  to   distribute.    Torres'  principal          challenge to his conviction is that the  district court committed          reversible error when it denied his renewed motion for severance.          Torres also argues that he is entitled to a new trial because the          district   court   improperly  admitted   certain  co-conspirator          statements  against him.  Rodr guez and Matos both claim that the          evidence was  insufficient to  support their convictions.   Matos          also  asserts  that the  district  court  erroneously denied  his          motion to suppress evidence  seized incident to his arrest.   All          appellants  also challenge  their sentences, contending  that the          district  court erred in  its drug quantity  determinations.  For          the  following reasons,  we  affirm  appellants' convictions  and          sentences.                                      BACKGROUND                                      BACKGROUND                    We  view and  present the  evidence in  the light  most          favorable  to the government.   United States v.  Abreu, 952 F.2d                                          _____________     _____          1458, 1460 (1st Cir.), cert. denied, __ U.S. __, 112 S. Ct. 1695,                                 ____  ______          118  L.Ed.2d 406 (1992).  The investigation of this case centered          on  the undercover  work of  Drug Enforcement  Agency  Task Force          Agent Mart nez.  During the  course of this investigation,  Agent          Mart nez purchased  four ounces of  cocaine from David  Thomas on          October  18, 1991 and November 1, 1991, respectively, and a half-          kilogram  from Thomas  on November  8,  1991.   The investigation                                         -3-          culminated  on January  17, 1992  when defendant  Abelardo Cuevas          delivered ten kilograms of cocaine to Agent Mart nez.                      A.  The January 17, 1992 Transaction                    A.  The January 17, 1992 Transaction                        ________________________________                    On the morning of January 17, 1992, Mart nez and Cuevas          spoke  on the telephone, and agreed to conduct the transaction in          the  parking   lot  of   a  Friendly's  restaurant   in  Peabody,          Massachusetts.   In anticipation  of the transaction,  government          agents   established  surveillance   in   several   areas.     At          approximately  8:00  a.m.,  police  officers  observed  appellant          Torres pick up Cuevas  in a brown Cadillac registered  to Thomas,          and  drive away.  Approximately 45 minutes later, a state trooper          saw Torres and Cuevas pull up to the access code  box at the gate          of  North  Shore  Self Storage.    Torres  used  the access  code          assigned  to appellant  William  Rodr guez to  open the  security          gate.  Torres and Cuevas then entered the storage facility.                    Approximately  one minute  later,  the  trooper saw  an          older  blue Toyota station wagon pull  up to the access code box.          Although the officer observed  that this car was occupied  by two          Hispanic  males, he  was forced  to look  away when  the two  men          looked directly at him.  Consequently, Trooper Dern was unable to          identify the men. The driver of this car, however, used Appellant          Rodr guez'  access code to open  the security gate  and enter the          storage grounds,  and the officials conducting  the investigation          concluded that these men were Rodr guez and appellant Matos.                    Five  minutes  later,  Torres  and  Cuevas  exited  the          storage  grounds  in the  brown  Cadillac.   Approximately  three                                         -4-          minutes later,  the blue Toyota station wagon  exited the grounds          as well.   Both Torres and  the driver of the  blue station wagon          used Rodr guez' access code to  open the gate when they left  the          premises.                     Ten minutes  later, agents observed  Torres and  Cuevas          enter  the parking lot of a  Friendly's restaurant in Peabody.  A          few  minutes  later, Agent  Mart nez  arrived  in his  undercover          vehicle.   The  three men  met  briefly outside  the  restaurant.          During this meeting, Cuevas introduced  Torres to Mart nez as his          "socio,"  the  literal  translation  of  which  is  "associate."1           _____          Torres,  Cuevas, and  Mart nez  then entered  the restaurant  and          discussed the mechanics of  the ten-kilogram transaction.  Torres          stated  that he did not like the location and proposed completing          the transaction  in an  apartment, a proposal  Mart nez rejected.          Torres then stated that they had to be careful, because they were          talking  about  ten  kilos,  not  one  or  two.    In  this  same          discussion,  Torres  indicated  that  he  had  a  three  kilogram          delivery  to make  later  that day  in  Dorchester.   After  some          further conversation  about the  details of the  transfer, Cuevas          instructed Torres to retrieve  the cocaine.  Torres then  left in          the brown Cadillac.                    After  Torres left the parking lot, he drove south on a          highway  for a short time,  then suddenly exited  the highway and          reversed  his  direction.    After  driving  north  for  a  short                                        ____________________          1  Appellant  Torres contends that in Caribbean  Spanish, "socio"          is a colloquial term meaning "buddy" or "cousin."                                           -5-          distance, he drove  into a  strip mall, parked  the Cadillac  and          went to the trunk  area of the car for a few  seconds.  According          to  the  toll  records   obtained  for  the  cellular  telephones          subscribed to Torres  and Cuevas, Torres  contacted Cuevas at  or          about the time he reversed direction  on the highway.  After this          contact, Torres  returned to  the Friendly's restaurant,  and met          again  with  Mart nez  and  Cuevas  inside.   Torres  and  Cuevas          informed Mart nez  that they  would not complete  the transaction          there.   After  Mart nez complained  about the  sudden change  of          plan, Cuevas agreed  to complete the deal  in an hour  at Weylu's          Restaurant in Saugus, Massachusetts.  The three men then left, at          about 10:30 a.m.                    After  Cuevas and  Torres  left the  parking lot,  they          drove  to an area near  the Northgate Shopping  Center in Revere,          Massachusetts.  At approximately  10:55 a.m.,  an agent  observed          Torres  driving  the brown  Cadillac,  alone,  south to  Chelsea,          Massachusetts.   Torres  parked  the  Cadillac  in  front  of  20          Lawrence Street.  At approximately 11:15 a.m., Torres came out of          the  residence carrying a white shoulder bag.  Agents were unable          to maintain surveillance of Torres after that.                    At 11:30 a.m., agents observed a 1977 blue  BMW, driven          by appellant Rodr guez, moving  slowly down the exit road  of the          Weylu's Restaurant.    Appellant Matos  was seated  in the  front          passenger  seat.  After driving down the exit road, Rodr guez and          Matos drove slowly  through the lower  parking area past  several          parked  cars, including  a DEA  surveillance  van.   As Rodr guez                                         -6-          drove past the van, both Rodr guez and Matos looked into the van,          and  then parked behind it.   Rodr guez and  Matos remained there          for about five minutes.                    At  about 11:34  a.m., Rodr guez  received a  page from          Cuevas.   Immediately after Rodr guez received  this page, agents          observed  Rodr guez and  Matos  drive away,  going  north on  the          highway.  The agents did not follow.                    Approximately ten  minutes later, Mart nez drove  up to          the  front entrance  of  Weylu's.   As  Mart nez arrived,  Cuevas          walked up to his car and got in.  Once  inside Mart nez' vehicle,          Cuevas indicated  that he wanted  to leave the  area immediately.          Mart nez,  however, parked his car near the front entrance of the          restaurant.  After  Mart nez had parked, Cuevas informed him that          he had noticed two suspicious-looking  vans in the lower  parking          lot, and explained that, because of his concern about these vans,          he  had removed  the drugs from  the area.   As the  two men were          walking toward the restaurant entrance, Cuevas explained that the          cocaine  had  been  moved  to the  Kowloon  Restaurant,  a  short          distance away, and asked Mart nez to drive there to pick it up.                    Once   inside  Weylu's,  Mart nez   demanded  that  the          transaction  be completed  there,  and Cuevas  agreed.   He  told          Mart nez that he  needed to contact his  men to have the  cocaine          brought  back  to  Weylu's.   After  Cuevas  said  this, Mart nez          observed  Cuevas using  his cellular  telephone to  contact these          men.  According to the toll records obtained for Cuevas' cellular          phone,  Cuevas paged Rodr guez at  11:55 a.m. and  again at 12:03                                         -7-          p.m.                      When Rodr guez failed to respond to these pages, Cuevas          returned  to Mart nez'  table  and explained  that he  was having          difficulty  reaching his men.   Cuevas then pleaded with Mart nez          to  travel  to the  Kowloon Restaurant  to  pick up  the cocaine.          Mart nez explained  that he could not complete the transaction at          the Kowloon  because he did not have the purchase money with him.          Mart nez and  Cuevas then agreed  to pick  up the cocaine  at the          Kowloon and then return to Weylu's.                      At  12:15 p.m.,  while Mart nez  and Cuevas  were still          inside  Weylu's,  Rodr guez and  Matos  returned  to the  Weylu's          parking lot  in the blue BMW.   They drove directly  to the upper          parking area adjacent to the restaurant.                      At approximately 12:30 p.m.,  Mart nez and Cuevas  left          Weylu's  and entered  Mart nez' car.   Almost  immediately after,          Rodr guez and Matos were  observed running from the drive-through          area of the restaurant to  their car.  They got in  their car and          drove rather quickly after Mart nez'  car.  At the bottom  of the          exit road,  Rodr guez and  Matos  pulled up  behind Mart nez  and          Cuevas, and then followed  Mart nez' car onto the highway.   Once          on  the highway,  Cuevas adjusted  Mart nez' rear-view  mirror so          that he, not Mart nez, had a better  view of traffic behind them.          When Mart nez and Cuevas  entered the parking lot of  the Kowloon          Restaurant,  Rodr guez and  Matos followed  them into the  lot as          well.                    In  the parking lot, Cuevas left Mart nez' car, went to                                         -8-          the  blue Toyota station wagon  parked there and  retrieved a gym          bag containing  ten kilograms of  cocaine.  After  retrieving the          cocaine,  Cuevas  returned  to  Mart nez'  car  and  the two  men          returned to Weylu's.  While he was waiting at a table to get paid          for the cocaine, Cuevas was placed under arrest.                    As  Cuevas was  retrieving  the cocaine  from the  blue          Toyota,  Rodr guez and  Matos watched  from the  blue BMW.   When          Mart nez and Cuevas  left the Kowloon parking lot,  Rodr guez and          Matos  pulled  onto the  highway and  followed  them.   They were          followed  by agents in the  same surveillance van  that had drawn          the  attention  of  Rodr guez  and Matos  earlier  that  morning.          Rodr guez  and Matos drove north for a distance and then reversed          direction.   After driving  south a  short distance, they  pulled          over to  the side of the road and allowed the surveillance van to          pass them.                    After  the van  passed  them, Agent  Geibel, the  van's          driver, pulled  the van into a  parking lot and parked  there.  A          short  time later, Rodr guez and  Matos drove by  the lot slowly,          looking  at the  van  as they  passed.   Instead  of  continuing,          however, Rodr guez and Matos pulled into the parking lot of a gas          station,  where  they  waited  for  about  five  minutes.    When          Rodr guez and Matos  exited the station parking lot, Agent Geibel          also pulled out  and followed  them.  Geibel  then followed  them          into the parking lot of a Sears store.                      After  parking their car,  Rodr guez and  Matos entered          the Sears store through the front entrance.  A few minutes later,                                         -9-          they exited the  building through the rear entrance.   As the two          men  were walking along the  side of the  building, Rodr guez and          Matos  again  looked  at  the  surveillance  van.    Rather  than          returning to their car,  they reentered the store through  a side          entrance.   A few minutes later,  they exited the store  from the          front,  and  Rodr guez  walked  to  a  nearby  public  telephone.          Rodr guez was then arrested.  According to the cellular telephone          records obtained for Torres'  cellular telephone, Torres placed a          page to  Rodr guez at or about the  time that Rodr guez walked to          the payphone.                    As Rodr guez  was being arrested, Matos  turned and ran          back to the  store.  After a brief chase,  he was apprehended and          arrested.  At the  time of the arrest, Matos had the registration          for  the  blue  Toyota  station  wagon,  from  which  Cuevas  had          retrieved the  cocaine, in his possession.  Later that afternoon,          Torres was placed under arrest near his home in Chelsea.                    B.  The Search of Rodr guez' Storage Unit                    B.  The Search of Rodr guez' Storage Unit                        _____________________________________                    During  the  early  evening  hours of  that  same  day,          January 17,  1992,  agents  applied  for and  obtained  a  search          warrant  to search the storage unit at North Shore Storage rented          by Rodr guez.  Torres had a key to this  unit, along with keys to          the brown Cadillac, in his possession at  the time of his arrest.          Rodr guez also had  a key to this storage unit on his key ring at          the time of his arrest.                     The searching agents found a 1988  Ford Taurus car with          New York  license plates in  the storage unit.   Under the  front                                         -10-          seat of the car, agents found National Car Rental documents dated          January  11, 1992 in Cuevas' name.  A search of the trunk area of          the car  revealed  a  secret  compartment and  two  kilograms  of          cocaine.    The  search  of  Rodr guez'  self-storage  unit  also          produced a  triple-beam scale, various packaging  materials and a          safe.   When  the  safe  was opened  a  few  days  later,  agents          discovered  another   kilogram  of  cocaine  and  more  packaging          materials.                                         -11-                    C.  Prior Proceedings                    C.  Prior Proceedings                        _________________                    On January 30, 1992, a grand jury returned a five-count          indictment against Cuevas, Torres, Rodr guez,  Matos, and Thomas.          Count One charged all  six with participating in a  conspiracy to          possess  cocaine with intent  to distribute.   Counts Two through          Five of the indictment contained substantive distribution charges          relating to the  four undercover cocaine  purchases.  Cuevas  and          Thomas were named as  defendants in Counts Two, Three,  and Four.          Cuevas, Torres, Rodr guez  and Matos were named  as defendants in          Count Five, regarding the ten kilogram transaction.                    After a trial, a  jury returned guilty verdicts against          all defendants on all  counts.  Rodr guez, Matos and  Thomas were          sentenced  on December  8, 1992.   The  district  court sentenced          Thomas to 70 months' imprisonment.  Based  on their participation          in the  ten kilogram transaction  of January 17,  1992, Rodr guez          and Matos  each received  ten-year, mandatory  minimum sentences.          The district court sentenced  Cuevas to 235 months' imprisonment,          and Torres to 210-months' imprisonment.                                        ANALYSIS                                       ANALYSIS                    A.  Denial of Torres' Motion for Severance                    A.  Denial of Torres' Motion for Severance                        ______________________________________                    Several months  prior to  trial, Torres filed  a motion          for severance under  Fed. R. Crim. P.  14, arguing that his  case          should be severed because "one or more co-defendants has given or          would  give exculpatory  testimony or  evidence in his  behalf if          called as a witness at  trial."  His motion was unaccompanied  by          affidavit  or  other evidence  of such  a  witness.   Torres did,                                         -12-          however,  submit  an  affidavit   from  Cuevas  with  a  markedly          different  version of the events  of January 17,  1992.  Although          Cuevas' affidavit  attempted to exculpate Torres,  nothing in the          affidavit indicated whether he  would actually testify on Torres'          behalf.     The  district  court  rejected   Torres'  motion  for          severance,  holding that  Torres  had not  met  his burden  under          United States v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984).          _____________    _______                    Immediately  prior to  jury  selection  for his  trial,          Torres filed  a Supplemental  Motion for Severance,  arguing that          severance  was required on two  grounds.  First,  he contended, a          severance was  required due to "prejudicial  spillover."  Second,          Torres contended that a  separate trial was required in  order to          make  Cuevas' exculpatory  testimony available  to him.    In his          motion,  Torres  admitted  that  Cuevas'  attorney  had  recently          advised Torres'  counsel that Cuevas would not testify on Torres'          behalf at a separate trial.  However, according to Torres, Cuevas          had  personally indicated to him that he would testify for Torres          at  a separate trial.   Torres again failed,  however, to produce          any affidavits supporting this  assertion.  Torres requested that          the court ask Cuevas directly of his intentions.  Cuevas' counsel          objected to such a  procedure.  The district court  then declined          to question  Cuevas directly,  found that  the basis for  Torres'          severance motion  was "entirely  too speculative" and  denied the          motion.  Torres now challenges the district court's denial of his          motion.                    We  have  held  that   "[a]  motion  for  severance  is                                         -13-          committed  to the  sound discretion  of the  trial court,  and we          review only for  a manifest  abuse of discretion  resulting in  a          miscarriage of justice."   United States v. Welch, 15  F.3d 1202,                                     _____________    _____          1210  (1st Cir. 1993), cert.  denied sub. nom,  Driesse v. United                                 ____   ______ ___  ___   _______    ______          States, 114 S. Ct. 1661 (1994) and Welch v. United States, 114 S.          ______                             _____    _____________          Ct.  1863 (1994).   A  trial judge thus has considerable latitude          in  deciding  severance  questions,  and we  will  overturn  that          judge's  resolution  of them  only  if  that  wide discretion  is          plainly abused.  United States v. O'Bryant, 998 F.2d 21,  25 (1st                           _____________    ________          Cir.  1993)  (internal quotations  omitted).    Reviewing Torres'          challenge under this standard, we find no abuse of discretion.                      1.  Severance  to allow  exculpatory  testimony of  a                      1.  Severance  to allow  exculpatory  testimony of  a                          _________________________________________________                          codefendant                          codefendant                          ___________                    Torres'  motion  for   severance  in  order  to   allow          exculpatory testimony by a codefendant is governed by our holding          in Drougas, 748 F.2d at 19.   Under the Drougas test, in order to             _______                              _______          be  entitled to  a  severance on  the  basis of  a  codefendant's          testimony,  the movant must demonstrate  1) a bona  fide need for                                                        __________          the  testimony;  2)  the  substance  of  the  testimony;  3)  its          exculpatory nature and effect;  and 4) that the codefendant  will          in fact testify if the cases are severed.  A court reviewing such          a motion should 1)  examine the significance of the  testimony in          relation to  the defendant's defense theory;  2) consider whether          the   testimony  would   be  subject  to   substantial,  damaging          impeachment; 3)  assess the counterarguments of judicial economy;          and 4) give weight to the timeliness of the motion.  Id. at 19.                                                               __                    Torres did  not meet  the fourth  prong of the  Drougas                                                                    _______                                         -14-          test -- i.e., he did not sufficiently establish that Cuevas would                  ____          indeed testify in a  separate trial.  Torres insists  that Cuevas          had repeatedly assured him  that he would testify in  his behalf,          yet  Torres  did not  submit any  affidavits,  either his  own or          Cuevas',  in  support of  these  assurances.   More  importantly,          Cuevas' attorney told Torres  and the district court specifically          that  Cuevas would not testify.   Torres concedes  now that "some                             ___          doubt  remained" as to whether Cuevas would actually testify at a          separate trial.  He argues, however,  that given this  doubt, the          district court  should have asked Cuevas  directly over counsel's          objection whether he would testify at a separate trial on Torres'          behalf,  and  that  the  court's  failure  to  ask this  "single,          clarifying question"  of Cuevas  "crippled"  Torres' defense  and          constituted an abuse of discretion.                    We have  held that an allegation that a codefendant may          testify, without more, is insufficient to  entitle a defendant to          severance.   United States v.  Nason, 9 F.3d  155, 159  (1st Cir.                       _____________     _____          1993).     Given the  complete lack  of  either factual  or legal          support for Torres' request, it is  clear to us that the district          court's refusal  to  interrogate  Cuevas  directly  was  entirely          reasonable and  within  its  broad  discretion.2   This  lack  of                                        ____________________          2  The government suggests that because Cuevas had not waived his          right to  counsel, a forced inquiry  of Cuevas by  the court over                                                                       ____          his  attorney's objection may well have given  rise to a claim by          _________________________          Cuevas that his Sixth Amendment  right to effective assistance of          counsel  had been compromised.   While  we do  not opine  on this          possibility, such lurking  constitutional concerns underscore the          reasonableness of the district court's refusal to question Cuevas          directly.                                         -15-          evidence  also leads  us to the  inescapable conclusion  that the          district  court  properly applied  the  Drougas  test and  denied                                                  _______          Torres' severance motion on this ground.                      2.  Severance  to  avoid "prejudicial  spillover" of                      2.  Severance  to  avoid "prejudicial  spillover" of                          ________________________________________________                          evidence                          evidence                          ________                    Torres also claims that because he only played a "minor          role"  in the charged conspiracy and much of the evidence adduced          at trial  concerned the codefendants, he  was unfairly prejudiced          by the  "spillover" of  this evidence.   "Spillover" occurs  when          evidence establishing guilt of  one defendant, but not admissible          against  another, creates  an  "atmosphere  clouding  the  jury's          ability to evaluate fairly the guilt or innocence of the latter."          United  States v. Perkins, 926  F.2d 1271, 1281  (1st Cir. 1991).          ______________    _______          We  have explained,  however, that  where evidence  featuring one          defendant is independently admissible against a  codefendant, the          latter  cannot convincingly  complain  of an  improper spillover.          O'Bryant, 998 F.2d at 26.  Furthermore, the existence of stronger          ________          evidence  against  codefendants  does not  necessarily  entitle a          defendant  to   automatic  severance,  nor  does   a  defendant's          relatively minor  conspiratorial role  normally preclude  a joint          trial  with more prominent codefendants.  Welch, 15 F.3d at 1210.                                                    _____          Thus,  when multiple defendants are named in a single indictment,          a defendant who  seeks severance  will succeed only  by making  a          "strong showing of evident prejudice."  O'Bryant, 998 F.2d at 25.                                                  ________          Even  where  large amounts  of  evidence  are irrelevant  to  one          defendant,  or where  one defendant's  involvement in  an overall          conspiracy is far  less than  that of others,  a reviewing  court                                         -16-          must be reluctant to second-guess severance denials.  Id. at 26.                                                                __                    In support  of his  "spillover" claim,  Torres contends          that  the  government's   trial  evidence  actually  proved   two          conspiracies,  not one,  as charged  in the  indictment.   Torres          maintains  that  the  evidence  proved  one  conspiracy involving          Thomas  and   Cuevas  that  produced  the   three  early  cocaine          transactions.  He contends  that the evidence then  established a          second conspiracy involving Cuevas,  Rodr guez, Matos and himself          to  deliver the  ten kilograms  of cocaine  on January  17, 1992.          Torres  argues that he was unfairly prejudiced by the evidence of          the three  smaller cocaine transactions among  Agent Mart nez and          defendants Thomas and Cuevas.                    Torres'   defense   counsel   raised   this   objection          repeatedly  during   trial,  and  the  district  court  carefully          instructed  the jury  with  respect  to  the  issue  of  multiple          conspiracies.   Torres  did  not object  to  this aspect  of  the          district court's jury charge, and does not challenge it here.                      In  any  case,  the  evidence  strongly indicates  that          Torres  was much more than a one-day, one-time conspirator, as he          now  avers.    During  his  conversations  with  Agent  Mart nez,          defendant Cuevas repeatedly stated that he needed to  confer with          his  "partner."  When introducing  Torres, he referred  to him as          his "socio," or associate.   Immediately before and after  one of               _____          his   meetings  with   Mart nez   negotiating  a   multi-kilogram          transaction, Cuevas called Torres on his cellular telephone.  The          evidence also  shows an  ongoing relationship between  Torres and                                         -17-          Rodr guez, and  that Rodr guez was responding to  Torres' page at          the time of his arrest.   We think that this evidence  all fairly          supports the reasonable inference that Torres was Cuevas' partner          inanongoingdrug                        conspiracy,whichincludedthethree                                                       smallertransactions.                    Most  importantly,  the  evidence  introduced  at trial          firmly supports Torres' conviction  for participating in a single          conspiracy to distribute ten kilograms of  cocaine on January 17,          1992.    In  fact, the  evidence  indicates  that  Torres had  an          influential,  even leading, role in the conspiracy.  He went with          Cuevas in the morning  to the storage facility where  the cocaine          was  presumably   stored;   he  actively   participated  in   the          discussions  with  Agent  Mart nez,  suggesting  the  place   and          mechanics of the transaction;  and he stated that he  had another          smaller delivery that day.   Torres has not indicated how he  was          prejudiced  by any alleged "spillover,"  and in light  of all the          evidence  against him, we do not see any prejudice.  Accordingly,          we affirm the district court's denial of his motion to sever.                    B.   Admission  of  Co-Conspirator  Statements  against                    B.   Admission  of  Co-Conspirator  Statements  against                         __________________________________________________                         Torres                         Torres                         ______                    Torres also maintains that the district court committed          clear error when  it admitted  into evidence  statements made  by          Thomas and Cuevas prior to January  17, 1992, under Fed. R. Evid.          801(d)(2)(E).  In particular,  Torres challenges the admission of          the statements made by Thomas to Agent Mart nez during a recorded          conversation  on  October  18,  1991.   Torres  claims  that  the          statement  should have been excluded because  1) United States v.                                                           _____________          Petrozziello,  548 F.2d  20 (1st  Cir. 1977),  requires  that the          ____________                                         -18-          government  have independent  evidence that  the defendant  was a          member of the conspiracy at the time the co-conspirator statement          was  made; 2) there was no significant evidence linking Torres to          the conspiracy other  than the challenged  statement; and 3)  the          statement prejudiced him by "possibly rais[ing] an inference that          Torres had any knowledge of or connection to the drug trafficking          activities of Thomas and Cuevas before January 17, 1992."                      The test for admissibility of a coconspirator statement          under   Fed.  R.   Evid.   801(d)(2)(E)  is   whether,  under   a          "preponderance of the evidence" standard, it is more likely  than          not  that  a conspiracy  embracing  both  the declarant  and  the          defendant existed,  and that the declarant  uttered the statement          during and in furtherance  of that conspiracy.  United  States v.                                                          ______________          Sep lveda, 15  F.3d  1161, 1180  (1st Cir.  1993) (citing,  inter          _________                                                   _____          alia,  Petrozziello, 548 F.2d at 23).  A district court's rulings          ____   ____________          on the admissibility of  co-conspirator declarations are reviewed          under the clearly erroneous standard.  Id. at 1180.                                                 __                    We have held  that when a defendant  joins a conspiracy                                       ____          is irrelevant in determining whether a co-conspirator's statement          is admissible under Rule 801(d)(2)(E).  Once found to be a member          of a  conspiracy, a  defendant is subject  to proof of  the prior          acts and comments  of his co-conspirators, even if those comments          were made prior to the defendant's involvement in the conspiracy.          United States  v. Masse, 816 F.2d  805, 811 (1st Cir.  1987).  In          _____________     _____          the  instant case,  the district  court conducted  a Petrozziello                                                               ____________          hearing at  the close of  all the evidence,  and concluded, by  a                                         -19-          preponderance of  the evidence, that a  single conspiracy existed          and that Torres  was a  participant.  Nothing  more was  required          under our precedents to  render the statements of co-conspirators          Thomas  and Cuevas admissible under  Rule 801(d)(2)(E).  In light          of the ample  evidence, discussed  above, of the  existence of  a          conspiracy and Torres' influential participation in it, we cannot          say that  the district court's Petrozziello  rulings were clearly                                         ____________          erroneous.  We therefore affirm Torres' conviction.                      C.   Denial of Matos' Motion to Suppress                    C.   Denial of Matos' Motion to Suppress                         ___________________________________                    On  March 17,  1992, Matos  moved to  suppress evidence          seized  by the government incident  to his arrest  on the grounds          that   his  arrest   was   conducted  without   probable   cause.          Essentially, Matos claims that  his arrest at the Sears  store on          January  17, 1992  was  based  on  a  mere  hunch  or  subjective          suspicion by the arresting  agents that Matos and Rodr guez  were          conducting    "counter-surveillance"    for    Cuevas'    cocaine          transaction.   In a  written memorandum and  order, the  district          court  denied  Matos'  motion,  concluding that  his  arrest  was          supported by probable cause.  The district court reviewed  Matos'          activities prior to his  arrest, and noted that "[t]he  fact that          Matos fled  adds weight to  the determination of  probable cause,          but  is not necessary to  that determination."   Matos now claims          that  we  must  find that  the  district  court's  denial of  his          suppression motion constituted reversible error.                    A  district  court's findings  of fact  on a  motion to          suppress are  reviewable  only for  clear  error as  to  probable                                         -20-          cause, and questions  of law  remain subject to  de novo  review.                                                           __ ____          United  States  v. Zapata,  18 F.3d  971,  975 (1st  Cir. 1994).3          ______________     ______          Regardless  of the degree of deference in our review, however, we          believe  that  the district  court  was correct  in  finding that          Matos' arrest was supported by probable cause.                    It  is  elementary  that  the  constitutionality  of  a          warrantless arrest depends upon  whether, at the time  the arrest                                                    _______________________          was made,  the officers had probable cause to make it -- that is,          ________          whether at that  moment the facts and  circumstances within their          knowledge   and   of  which   they  had   reasonably  trustworthy          information  were  sufficient  to  warrant a  prudent  person  in          believing  that the defendant had committed  or was committing an          offense.  United States  v. Morris, 977 F.2d  677, 684 (1st  Cir.                    _____________     ______          1992).  Probable cause is determined under an objective standard,          and the government need  not show the quantum of  proof necessary          to convict.   Id. Probability, and  not a prima facie  showing of                        __          criminal activity, is the standard of probable cause.  Id.                                                                   __                    We have held that probable  cause must be determined in          light of the collective knowledge of the law enforcement officers          involved in an investigation.   United States v. Diallo,  19 F.3d                                          _____________    ______          23, 25-26 (1st Cir. 1994).  Accordingly, an  officer's experience          and expertise as a police officer may  also be crucial factors in          the probable cause determination.  United States  v. Maguire, 918                                             _____________     _______                                        ____________________          3   Here, the  district court  ruled on  Matos' motion  without a          hearing and did not make specific findings of fact.  It is clear,          however,  that  the  court  implicitly  adopted  the government's          version of the facts.                                          -21-          F.2d 254, 258 (1st  Cir. 1990), cert. denied sub.  nom. Kavanaugh                                          ____  ______ ____  ____ _________          v. United States, 501 U.S. 1234 (1991).             _____________                    Applying these principles here,  we think it clear that          an  objective  view of  the  facts support  the  district court's          finding of probable cause  for Matos' arrest.  It  was Rodr guez'          storage  unit that Cuevas and  Torres accessed on  the morning of          January  17, 1992,  a  fact that  the  agents knew  during  their          surveillance of Matos  and Rodr guez that afternoon.   The agents          also  had a  reasonable  suspicion that  it  had been  Matos  and          Rodr guez  in the blue Toyota  station wagon who  met with Torres          and  Cuevas at the storage facility that morning.  The activities          of  Matos  and  Rodr guez  that afternoon  support  a  reasonable          inference  that they were closely involved in the delivery of ten          kilograms  of cocaine  to Mart nez  on January  17, 1992.   Their          behavior  and carefully  synchronized movements  strongly support          the  agents'  theory  that  they  were   in  charge  of  counter-          surveillance for  the transaction.   We therefore  find that  the          district court correctly denied Matos' motion to suppress.                    E.   Denial of Matos' and Rodr guez' Motions for  Entry                    E.   Denial of Matos' and Rodr guez' Motions for  Entry                         __________________________________________________          of             Judgments of Acquittal          of             Judgments of Acquittal          ___            ______________________                    Both Matos and Rodr guez challenge the district court's          denial of  their  motions  for judgments  of  acquittal.    Matos          contends that  his "mere presence" at the scene of a crime is the          only evidence  of his membership in the conspiracy, and therefore          that his  conviction cannot  stand.  Rodr guez  likewise contends          that no evidence of  his membership in the conspiracy  exists, or                                         -22-          that he violated any laws, and that the government's case against          him is based solely on conjecture and speculative inference.                    When  reviewing the denial of a  motion for judgment of          acquittal, we assess the  sufficiency of the evidence as  a whole          in  the light  most  favorable to  the verdict,  with  a view  to          whether a rational trier  of fact could have found  the defendant          guilty  beyond a  reasonable  doubt.   We  do not  weigh  witness          credibility, but resolve  all credibility issues in favor  of the          verdict.   United States  v.  Hahn, 17  F.3d 502,  506 (1st  Cir.                     _____________      ____          1994).  The evidence may be entirely circumstantial, and need not          exclude  every  reasonable hypothesis  of  innocence.   In  other          words, the factfinder may decide among reasonable interpretations          of the evidence.   Id.                             __                    Viewing the  evidence according to these principles, we          think it clear that  the convictions of both Matos  and Rodr guez          were  amply supported by the evidence.  Both of these appellants'          challenges rest on  the testimony offered by Rodr guez  at trial.          Rodr guez testified at trial that he had rented a storage unit at          North Shore Self Storage with Cuevas for the purpose of repairing          a  car.   According  to  Rodr guez,  he  returned  his  keys  and          paperwork to Cuevas  and did not return to the storage unit after          December  19, 1991.  Rodr guez also denied driving to the storage          unit on the morning of January 17, 1992, denied returning to  the          Weylu's parking  lot, denied running  from the restaurant  to his          BMW with Matos, and  denied following Mart nez and Cuevas  to the          Kowloon restaurant.  Rodr guez claimed that his only contact with                                         -23-          Cuevas on  that day was to  drive him to Weylu's,  after which he          and  Matos proceeded  to Sears  to go  shopping.   Rodr guez also          denied that he  was responding to a page from  Torres when he was          arrested, despite the records indicating that just moments before          his arrest he had been paged by Torres.                    Clearly,  the jury  rejected  Rodr guez' testimony,  no          doubt  in light  of the evidence  to the contrary.   As discussed          above,  the  government  proved  through   strong  circumstantial          evidence  that Rodr guez  and  Matos were  closely involved  with          Cuevas in the ten kilogram transaction.  The jury was entitled to          draw  reasonable inferences  from  this evidence,  and to  reject          Rodr guez' testimony in whole or in part.  We therefore find that          the evidence adduced at trial supports the jury's guilty verdict,          and  that  the district  court  properly  denied the  defendants'          motions for judgments of acquittal.                    F.   The Sentences of Torres, Matos & Rodr guez                    F.   The Sentences of Torres, Matos & Rodr guez                         __________________________________________                    All  of  the  appellants  challenge   their  sentences.          Torres,  Rodr guez and  Matos  each challenge  the drug  quantity          determinations  made by  the  district court  during  sentencing.          Torres claims  that the district  court committed clear  error by          attributing  to him  two  kilograms of  cocaine  discovered in  a          second  storage unit at North  Shore Self Storage.  Consequently,          Torres  argues,  his  Base  Offense Level  under  the  Sentencing          Guidelines should have been 32 (5-15 kilograms of cocaine) rather          than  level 34 (15-50 kilograms of cocaine), as determined by the          district court.                                         -24-                    Rodr guez and Matos also  claim that the district court          committed clear error in finding that a drug quantity of at least          five kilograms of cocaine was reasonably foreseeable to them as a          consequence  of   their   participation  in   the  ten   kilogram          transaction  of January  17,  1992.   Accordingly, Rodr guez  and          Matos both claim that  their ten-year mandatory minimum sentences          must be vacated.                    It is  well settled that "[a]  narcotics conspirator is          responsible not only for the drugs he actually handled or saw but          also for the full quantity of drugs that he reasonably could have          foreseen to be  embraced by  the conspiracy he  joined."   United                                                                     ______          States  v. De  La Cruz,  996  F.2d 1307,  1313 (1st  Cir.), cert.          ______     ___________                                      ____          denied,  114 S. Ct. 356  (1993).  Moreover,  the district court's          ______          finding  as  to  the  quantity  embraced  by the  conspiracy  and          reasonably  foreseen by the defendant  is a factual  one and will          not  be disturbed  unless  it  is clearly  erroneous.    Id.   In                                                                   __          reviewing drug quantity  determinations made by district  courts,          we  have held that the  sentencing court has  broad discretion to          determine  what data is or  is not sufficiently  dependable to be          used  in imposing sentences.   United States v.  Whiting, 28 F.3d                                         _____________     _______          1296, 1304  (1st Cir. 1994)  (internal quotations  omitted).   We          also defer to the  sentencing court's credibility determinations.          Id.           __                      1.  The district court's drug quantity determination                      1.  The district court's drug quantity determination                          ________________________________________________                          as to Torres                          as to Torres                          ____________                    The district court found Torres responsible for the ten          kilograms  involved in  the January  17, 1992  transaction; three                                         -25-          kilograms  found in  Rodr guez' storage  unit; and  two kilograms          found  in another  storage unit  belonging to  Mariquesa Cuevas.4          The  district court  based its  sentencing determinations  on its          factual finding that Torres was "very much involved" in "what was          going  on out  at the  storage location,"  and that  the evidence          regarding  his participation  in the cocaine  distribution scheme          with Cuevas was compelling.  The  district court concluded, based          on these findings, that Torres was "involved and accountable" for          the five kilograms  found in the  two units at  North Shore  Self          Storage.    Torres  now argues  that  no  evidence  links him  to          Mariquesa Cuevas' storage unit or to the two kilograms of cocaine          found  therein.   He contends  that the  sentencing court  had to          engage  in speculative and impermissible  leaps of logic in order          to  attribute these two kilograms  to him, and  his sentence must          therefore be vacated.                    The relevant  facts relied  upon by the  district court          during sentencing but  not introduced into evidence at  trial are          as  follows.   During the  afternoon of  January 17,  1992, after          Cuevas had been arrested, his sister Mariquesa attempted to enter          North Shore Self  Storage.   She was driving  Cuevas' gold  Honda          Accord, a car that Cuevas had  driven to one of his meetings with          Agent  Mart nez. Mariquesa Cuevas was  stopped by a state trooper          before  she  could  enter  the storage  facility  premises.   The                                        ____________________          4  Mariquesa Cuevas, the sister of defendant Abelardo Cuevas, did          not appear  for trial and  is a fugitive  from justice.   The two          kilograms of cocaine  found in  her storage unit  on January  17,          1992 were therefore not introduced at trial.                                         -26-          officer  observed a large amount of cash  on the back seat of the          Honda.   When asked about  the money, Mariquesa  Cuevas said that          she knew  nothing  about it,  and that  the car  belonged to  her          brother.  The car,  the money (approximately $7,000) and  the car          keys were then seized.                     Later  that  evening, agents  obtained  and executed  a          search warrant for a storage unit leased in the name of Mariquesa          Cuevas,  as well  as the  unit leased  in Rodr guez'  name.   Two          kilograms of cocaine were  recovered from Mariquesa Cuevas' unit.          Agents later determined  that one of the keys on the gold Honda's          key ring fit the lock to Mariquesa Cuevas' storage unit.                    The district  court evidently found  Torres responsible          at sentencing  for  these  two kilograms  because  of  the  ample          circumstantial evidence  of  his close,  influential  association          with Cuevas, and the  fact that Torres had the  key to Rodr guez'          storage  unit  in which  three kilograms  of cocaine  were found.          Despite Torres'  protestations at  sentencing, the court  faced a          sizeable quantity of evidence  that Torres exerted a significant,          even a leading,  role in a  cocaine distribution conspiracy,  and          that use of  the storage units  at North Shore  Self Storage  was          part of  the conspiracy's mechanics.   Therefore, even  if Torres          did not know  specifically about the  two kilograms in  Mariquesa          Cuevas'  storage unit, the  district court acted  well within the          bounds of  its discretion  in concluding,  based  on its  factual          findings,  that Torres  could have  reasonably foreseen  that any          additional  cocaine found  in the  storage  unit would  be deemed                                         -27-          "embraced" by the  overall conspiracy. Torres  fails to point  to          any  competent evidence  that  contradicts  the district  court's          findings and conclusions, other than his own testimony.   Because          the district court was  entitled to disbelieve Torres' testimony,          and because we  cannot say that the court's findings  of fact and          conclusions were clearly  erroneous, we reject  Torres' challenge          and affirm his sentence.                      2.  The district court's drug  quantity calculations                      2.  The district court's drug  quantity calculations                          ________________________________________________                          as to Rodr guez and Matos                          as to Rodr guez and Matos                          _________________________                    Rodr guez and  Matos also argue that  the ten kilograms          of cocaine delivered to Agent Mart nez on January 17, 1992 should          not  have been  attributed  to  them.    They  contend  that  the          government  failed  to  establish  that they  had  the  requisite          knowledge  of  the   the  amount  of  cocaine   involved  in  the          conspiracy.   Accordingly,  they argue,  the  ten-year  mandatory          minimum  penalty  prescribed  by  21  U.S.C.    841(b)(1)(A)(ii),          applicable to  conspiracies involving  five or more  kilograms of          cocaine, does not apply to them.                    In  rejecting this  argument at  sentencing and  ruling          that  the  ten-year  mandatory  minimum  did  indeed  apply,  the          district  court  found by  a preponderance  of the  evidence that          Rodr guez  and Matos joined Cuevas  and Torres in  the morning of          January 17, 1992 to pick up the ten kilograms of cocaine from the          storage facility to sell to Agent Mart nez.  The evidence adduced          at  trial, moreover,  also indicates  that it  was Rodr guez  and          Matos who,  at Cuevas' instruction,  moved the  ten kilograms  of          cocaine from  Weylu's restaurant to the  Kowloon restaurant later                                         -28-          that  day.    When  Rodr guez'  storage  unit  was  searched that          evening, a car with  a secret compartment and three  kilograms of          cocaine were found.  Rodr guez had a key to this unit at the time          of  his  arrest.   In  light  of all  of  this  evidence and  the          reasonable inferences that can be drawn therefrom,  we cannot say          that the district court  committed clear error in finding  that a          drug  quantity   of  at  least  five   kilograms  was  reasonably          foreseeable to both Rodr guez and Matos.                    We have  previously explained  that "[a]  defendant who          conspires  to  transport for  distribution  a  large quantity  of          drugs,  but happens not to  know the precise  amount, pretty much          takes  his chances that the amount involved will be quite large."          De  La Cruz,  996 F.2d  at 1314.   We  see no  reason or  special          ___________          circumstances here to justify a departure from  our prior ruling.          Accordingly, we reject Rodr guez'  and Matos' challenges to their          ten-year  minimum mandatory  sentences, and  affirm the  district          court's ruling.5                                      CONCLUSION                                      CONCLUSION                    For   the  foregoing   reasons,  the   convictions  and          sentences  of  appellants   Torres,  Rodr guez,  and   Matos  are          affirmed.          ________                                        ____________________          5    Rodr guez and  Matos also  contend  that the  district court          erroneously  refused to  consider  their  requests  for  downward          departures.   Because we have  affirmed the district  court as to          their  ten-year  mandatory  minimum  sentences,  their  arguments          regarding downward departures are moot, and we therefore need not          address them.                                         -29-
