June 8, 1994      UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 93-1193
                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          RENE M. PION,

                      Defendant, Appellant.

                                          

                           ERRATA SHEET

     The opinion of this  Court, issued June 1, 1994,  is amended
as follows:

     Page  11, line 22, should read:   . . .   Jury Wheel are the
best . . .

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 93-1193

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          RENE M. PION,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]
                                                      

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                  Aldrich, Senior Circuit Judge,
                                               

                     and Cyr, Circuit Judge.
                                           

                                           

   Benjamin D. Entine for appellant.
                     
   Geoffrey E.  Hobart, Assistant United States  Attorney, with whom
                      
A.  John Pappalardo,  United  States  Attorney,  and George  W.  Vien,
                                                                   
Assistant United States Attorney, were on brief for appellee.

                                           

                           June 1, 1994

                                           

          CYR, Circuit Judge.  After a two-week trial, Rene  Pion
          CYR, Circuit Judge.
                            

was convicted  on three cocaine-related charges  and sentenced to

concurrent mandatory minimum  ten-year prison terms, pursuant  to

21 U.S.C.   841(b)(1)(A)(ii).1   We address each of Pion's appel-

late claims.

A.   Entrapment
               

          Without challenging the jury instruction on entrapment,

Pion  contends that the evidence compelled jury acceptance of his

entrapment defense.  We therefore inquire whether a rational jury

could have found, beyond  a reasonable doubt, either that  he was

predisposed to  commit the particular  crime charged or  that the
                                                       

government did not  induce him to commit it.   Jacobson v. United
                                                                 

States,      U.S.    ,    , 112 S.  Ct. 1535, 1540 (1992); United
                                                                 

States  v. Reed, 977 F.2d 14, 18  (1st Cir. 1992).  Viewed in the
               

light most favorable to  the verdict, United States v.  Martinez,
                                                                

922 F.2d 914, 923 (1st Cir.  1991), there was ample evidence that

Pion was not induced to commit any crime.

          The only  inducement to  which he  points on  appeal is

that the government informant, Esteban Mendoza, plied and enticed

him with a  "vital" supply of  El Presidente beer  for resale  at

Pion's  restaurant.    According  to Pion,  the  government  thus

subjected him  to "rigid  economic coercion"  to traffick in  co-

caine.  Not only was this fanciful claim not preserved below,  it

                    

     1Count I charged conspiracy  to possess cocaine, with intent
to distribute, see 21 U.S.C.   846; substantive counts II and III
                  
charged possession of cocaine for distribution, and  distribution
of cocaine, respectively, see id.    841(a)(1) &amp; (b)(1)(A)(ii).
                                 

                                2

is squarely contradicted by his testimony at trial.   Additional-

ly, the  El Presidente beer  Mendoza supplied Pion  totalled nine

cases;  none of it  delivered until more than  two weeks after he

unhesitatingly  indicated his willingness  to supply Mendoza with

the first one-half kilogram of cocaine.  Thereafter, Pion partic-

ipated  in a  three-kilogram transaction  (and agreed  to arrange

another three  kilograms) with no inducement  except the implicit

"promise" of  cocaine profits.   Thus, the  record reveals  ample

support for a jury finding that Pion was no "unwary innocent" but

an "'unwary criminal' who readily availed himself of the opportu-

nity to perpetrate  the crime."   Mathews v.  United States,  485
                                                           

U.S. 58, 63 (1988).

B.   Coconspirator Statements
                             

          Pion claims  that the  district court committed  rever-

sible error  by admitting into evidence  coconspirator statements

pertaining to two separate  conspiracies:  the first  involving a

one-half  kilogram  transaction on  June 4,  1991;  the second  a

three-kilogram transaction  on July 3.2   According to  Pion, the

only possible link between the two transactions was the red Honda

automobile driven on June 4 by coconspirator "Rafael," purported-

ly Pion's  cocaine supplier,  and by coconspirator  Christobalina

Tejada on July 3.  Since Pion does  not suggest that the district

                    

     2Pion's entire effort to identify  the challenged coconspir-
ator statements is  as follows:   "The admission  of alleged  co-
conspirators [sic] statements from the second  conspiracy against
Pion, in  order  to  purportedly  prove his  involvement  in  the
alleged first conspiracy, and vice-versa, was therefore error and
was irreparably prejudicial to Pion."

                                3

court departed from the procedure required under United States v.
                                                              

Petrozziello,  548 F.2d 20, 23 (1st Cir. 1977), and United States
                                                                 

v.  Ciampaglia, 628 F.2d 632,  638 (1st Cir.),  cert. denied, 449
                                                            

U.S.  956  (1980), we  review  the conspiracy  finding  for clear

error, United States  v. McCarthy,  961 F.2d 972,  977 (1st  Cir.
                                 

1992).  We find none.

          The government  quite correctly  suggests that the  red

Honda, registered  to  Tejada, was  the  "most obvious  piece  of

circumstantial evidence" linking the two transactions to the same

conspiracy.    Equally conspicuous,  however,  yet  overlooked by

Pion, were  the three  participants common to  both transactions,

notably himself,  "Rafael" and Tejada, and  their tacit agreement

to traffick in cocaine.  Nothing more was required.

C.   The Transcripts
                    

          Without  identifying the  translations  at issue,  Pion

challenges, as ambiguous  and inaccurate, government  transcripts

containing English translations of Spanish conversations recorded

by Mendoza,  the  government informant,  during various  meetings

with  Pion  and other  conspirators.   Since  Pion did  not argue

before the district court that the transcripts were ambiguous, we
                                                             

review  only for plain error.  See United States v. Mejia-Lozano,
                                                                

829 F.2d 268, 272 (1st Cir. 1987); Fed. R. Crim. P. 52(b).

          Even though  Pion's failure to identify  the challenged

statements severely hinders  review, especially  since the  tran-

scripts are not  included in  the appellate record,  see Fed.  R.
                                                        

App. P. 10(b), 11(a),  we can say with confidence  that there was

                                4

no error, plain  or otherwise.  The thrust  of this contention is

that the  transcripts are susceptible to  two radically different

interpretations:  one innocent (the recorded conversations merely

concerned beer);  the other criminal (cocaine  trafficking).  The

record precludes  any  suggestion of  error based  on this  newly

minted theory,  as the evidence (including  Pion's testimony) and

the  recorded conversations  themselves established  beyond doubt

that beer  was simply the  means Mendoza  used to gain  access to

Pion.

          The district court  correctly followed the  transcript-

admission procedure set out in United States v. Rengifo, 789 F.2d
                                                       

975 (1st  Cir. 1986), by  first attempting,  without success,  to

obtain a  stipulated transcript.   See  id. at  983.  After  Pion
                                           

objected to  alleged inaccuracies in the authenticated government

transcript, he consented to its admission subject to the right to
                        

introduce his own transcript.   The court thereupon  admitted the

government  transcript  and gave  a cautionary  jury instruction.

Notwithstanding the fact  that the court recognized  his right to

do  so, Pion  did  not offer  his own  transcript.   Later,  Pion

objected when  the government attempted  to read portions  of its

transcript to  the jury.   The court  treated the objection  as a

motion to strike, and denied it.  

          There  was no abuse  of discretion.   United  States v.
                                                              

Font-Ramirez,  944 F.2d 42, 48 (1st Cir. 1991), cert. denied, 112
                                                            

S.  Ct.  954 (1992)  (no  "abuse of  discretion"  where defendant

neither offered transcript nor indicated specific inaccuracies in

                                5

government transcript); accord United  States v. Devous, 764 F.2d
                                                       

1349, 1355 (10th Cir. 1985). 

D.   Juror Misconduct
                     

          The district  court's decision to conduct  an in camera
                                                                 

inquiry  to resolve a report  of improper juror  contact was well

within its broad discretion.  See United States v. Reis, 788 F.2d
                                                       

54,  59 (1st Cir. 1986).  The  transcript of the in camera inter-
                                                          

view  plainly reveals  that the  matters discussed  directly per-

tained  to whether the juror  had been approached  and whether he

could be impartial.  

E.   Jury Composition
                     

          Pion claims a deprivation of his constitutional  right,

under  the Sixth Amendment to  the United States Constitution, to

be  tried by a  petit jury  drawn from  a representative  cross -

section of the  community.3   See Taylor v.  Louisiana, 419  U.S.
                                                      

                    

     3We  do not share the view embraced by our brother, relating
to 28 U.S.C.    1867.   See infra  at pp.  16-19.   First, it  is
                                 
unnecessary to  address section 1867, because  the merits dispute
properly raised, briefed and argued by the parties, and carefully
considered  by the  district  court,  presents an  insurmountable
barrier  for appellant.  See,  e.g., Norton v.  Mathews, 427 U.S.
                                                       
524, 532  (1976); In re Unanue  Casal, 998 F.2d 28,  33 (1st Cir.
                                     
1993).  Second, the jurisdictional  question our brother poses is
anything but easy, having been squarely  addressed in its present
aspect by but one court of appeals, see United States v. De Alba-
                                                                 
Conrado,  481  F.2d 1266  (5th  Cir.  1973),  which concluded    
       
contrary  to the position taken in the concurring opinion    that
constitutional challenges  to jury composition are  not barred by
                                                       
28 U.S.C.    1867(e).  Id.  at 1270,  n.4.  Although  we take  no
                          
position on the jurisdictional  question, the difficulty with the
position espoused  by our  brother is  succinctly  stated in  the
legislative history of 28 U.S.C.   1867(e): 
          Subsection  (e) makes  clear that  the proce-
          dures  prescribed  in  this section  are  the
          exclusive  means  for challenging  compliance
                                                       
          with the  statute.   The bill, as  amended by
                                       

                                6

522, 527  (1975).  The district court  accepted, arguendo, Pion's
                                                         

statistical data indicating that  though the 1990 census reflects

that 4.2% of  the residents  within the Eastern  Division of  the

District of Massachusetts are Hispanic, only 0.99% of all persons

responding to the juror questionnaire  during 1992, and 0.80%  of

those appearing for juror orientation, were Hispanic.  These data

form the evidentiary base for Pion's sweeping claim that "Hispan-

ic minority members are so grossly underrepresented among federal

juries as to constitute  a 'systematic exclusion of the  group in

the jury-selection process'" (quoting Duren v. Missouri, 439 U.S.
                                                       

357, 364 (1979)).  The district court  rejected the Pion claim on

the  fundamental ground that the  Amended Jury Plan  for the Dis-

trict  of Massachusetts ["Jury Plan"]  is as broadly inclusive as

any  in  the nation  and has  been  expressly approved  under the

Federal Courts  Administration Act of 1992, codified at 28 U.S.C.

  1863(b)(2) (1992).4   On appeal, Pion  nonetheless insists that

                    

          the  committee, however, makes clear that the
                                                       
          act will not preclude any person or the Unit-
                                                       
          ed  States from  asserting rights  created by
                                                       
          other statutes or for [sic] enforcing consti-
                                                       
          tutional rights.
                         
H.R. Rep. No.  1076, 90th  Cong., 2d Sess.  (1968), reprinted  in
                                                                 
1968 U.S. Code Cong.  &amp; Admin. News 1792, 1806  (emphasis added).
See also De-Alba-Conrado, 481 F.2d at 1270 n.5.
                        
          Given  the  express  language  employed  in  subsection
1867(e), and its explicit legislative history, id., we believe it
                                                  
prudent  to bypass  the question,  see Norton,  427 U.S.  at 532,
                                             
rather than attempt,  sua sponte,  to resolve it  on the  present
                                
record. 

     4Rather  than voter  lists  or  motor  vehicle  registration
lists, the baseline  data utilized  under the Jury  Plan are  the
alphabetical lists of all persons age seventeen and  above resid-
ing  in  every Massachusetts  city  and  town, compiled  annually
pursuant  to Mass.  Gen. L.  ch. 234A,    10 (1992).   See United
                                                          

                                7

the Jury Plan results in such substantial Hispanic underrepresen-
                        

tation as to render it constitutionally infirm under the "system-

atic exclusion"  standard employed in Duren v. Missouri, 439 U.S.
                                                       

357, 364 (1979).         The   burden  is  on  the  defendant  to

establish a prima facie case of unconstitutional disproportional-

ity.  United States v. Benmuhar, 658 F.2d 14, 19 (1st Cir. 1981).
                               

We  conclude  that Pion  has not  demonstrated that  any Hispanic

underrepresentation  on his jury venire was due to their "system-
                                                                 

atic  exclusion  in the  jury-selection  process."   Id.  at  366
                                                        

(emphasis  added).   Consequently, he has  failed to  establish a

prima  facie violation  of the  "fair-cross-section requirement."

Id. at 364;  United States v. Hafen, 726 F.2d  21, 23 (1st Cir.),
                                   

cert. denied, 466 U.S. 962 (1984). 
            

          The  government  agrees  that  Hispanics  constitute  a

distinctive ethnic  group in the Eastern Division of the District

of Massachusetts, thus  conceding the first  prong of the  three-

part  Duren test.   See Duren, 439  U.S. at 364.   The government
                             

counters, however, that Pion  failed to make the two  other Duren
                                                                 

showings:   that Hispanic representation on jury  venires "is not

fair and reasonable in relation to the number of such  persons in

the  community" and that any such  underrepresentation is "due to

systematic exclusion  of [Hispanics]  in the  jury-selection pro-

                    

States  District Court, District  of Massachusetts,  Amended Jury
Plan at 3 (Sept. 6, 1989).   Names are drawn at random from these
resident  lists for inclusion in the Master Jury Wheel from which
potential grand and petit jurors' names are then randomly drawn.

                                8

cess."   Id.   Although  both showings  are problematic,  we need
            

address only the "systematic exclusion" claim. 

          Pion  presented  uncontroverted  evidence indicating  a

3.4%  "absolute disparity" between  the 4.2% Hispanic representa-

tion  in the relevant  general population and  the 0.80% Hispanic

representation  among persons  appearing  for juror  orientation.

See Hafen, 726  F.2d at  24 ("absolute  disparity" standard  more
         

appropriate than "comparative disparity" standard where allegedly

underrepresented group  constitutes very small proportion  of the

total  population) (citing  United  States v.  Whitley, 491  F.2d
                                                      

1248, 1249 (8th Cir.), cert. denied, 416  U.S. 990 (1974)).5  For
                                   

the reasons stated  in Hafen,  726 F.2d at  24, the  "comparative
                            

disparity" standard should not be employed in circumstances where

"a small variation in the  figures used to calculate  comparative

                    

     5The  "comparative  disparity"  standard  would  measure the
                       
percentage spread between  the total number  of Hispanics in  the
relevant  general population  who are  eligible for  jury service
["eligible Hispanics"], i.e.,  assumedly 4.2%, and the  shortfall
                                                                 
between the  eligible Hispanic  jurors (4.2%) and  the percentage
appearing for juror orientation (0.8%), i.e., 3.4%.  The "compar-
                                                                 
ative disparity" would be calculated by dividing the shortfall in
                                                              
Hispanic  representation (3.4%)  by  the percentage  of  eligible
Hispanics (4.2%),  yielding a  huge 81%  "comparative disparity."
See Hafen, 726 F.2d at 23.
         
     The "absolute disparity" standard,  on the other hand, would
                  
measure  the  gross spread  between  the  percentage of  eligible
Hispanics (4.2%) in the relevant population and the percentage of
Hispanic representation  on the  Master Jury  Wheel.  Here,  Pion
wrongly assumes a 3.4% "absolute disparity."  The reality is that
               
the  spread between the 4.2%  of eligible Hispanics  and the per-
                                                                 
centage  of Hispanics  on  the Master  Jury  Wheel has  not  been
                                                  
established,  nor can  it be  discerned, since the  percentage of
Hispanics  on the  Master  Jury Wheel  is  not disclosed  in  the
                                     
appellate  record.   Thus,  Pion impermissibly  assumes that  the
0.80% Hispanic  representation among  all persons who  appear for
juror  orientation is  the  appropriate downside  percentage  for
measuring the absolute disparity in Hispanic representation.

                                9

disparity can produce a significant difference in the result, and

. . . there is  reason to  doubt the accuracy  of the figures  on

which appellant would have us rely."6

          Pion has  not  demonstrated that  any alleged  Hispanic

underrepresentation  on  Eastern  Division  jury  venires  in the

District of  Massachusetts is due to "systematic exclusion in the

jury-selection  process."  Duren, 439 U.S. at 366.  He identifies
                                

neither  a systemic defect  nor an operational  deficiency in the

Jury Plan  which would  account for the  alleged underrepresenta-

tion,  compare id.  at  366-67,  and  he expressly  disavows  any
                  

suggestion  that the Jury Plan was either designed or intended to

exclude Hispanics.

          The first infirmity  in the unfair  cross-section claim

is that the district court found, and Pion does not dispute, that

the broadest data available    resident lists    are used to make

up the Master Jury Wheel from which Eastern Division jury venires

are drawn.  There is no allegation, much less  a showing, statis-

tical  or otherwise,  that data  more conducive  to a  fair cross

section are  available, let  alone more fairly  representative of

eligible Hispanics  in the relevant general  population.  Second,

since  the names included in  the Master Jury  Wheel are randomly

drawn  from the most inclusive  data available, and random selec-

tion  also determines  to whom  juror questionnaires  are mailed,

there  can be  no  reasonable inference  that the  jury-selection

                    

     6For a fuller exposition of the rationale for  utilizing the
"absolute  disparity" standard in a case of this sort, see Hafen,
                                                                
726 F.2d at 23-24.

                                10

process itself systematically excludes  Hispanics at any stage up

to and including the distribution of juror questionnaires.

          At that stage in the process, however, the  data relied

on  by Pion indicate, see  1992 Jury Wheel  Report, Eastern Divi-
                         

sion, Boston, Mass.,  that only  .99% of those  who complete  and

return the jury questionnaire,  and .80% of those who  appear for

juror  orientation, are  Hispanic.   Nevertheless,  even assuming

their  accuracy,  these  data   demonstrate  no  Hispanic  under-
                                                                 

representation on the  1992 Master  Jury Wheel.   And since  only
                                              

those  persons whose names are randomly drawn for the Master Jury

Wheel can receive a juror questionnaire (and, later, a summons to

juror orientation),  Pion's allegation of  "systematic exclusion"

based on  the .80%  Hispanic representation at  juror orientation

(or  the .99% responding  to the questionnaire)  is pure specula-
                                                                 

tion.  See  United States v. Garcia, 991 F.2d  489, 492 (8th Cir.
                                   

1993) (numerical  underrepresentation not a proxy  for systematic

exclusion);  cf. Barber  v. Ponte,  772 F.2d  982, 997  (1st Cir.
                                 

1985) (en  banc) ("courts have tended  to allow a  fair degree of

leeway  in designating jurors so  long as the  state or community

does not  actively prevent people  from serving or  actively dis-

criminate, and so  long as the system is reasonably open to all")

(emphasis  in  original); cert.  denied,  475  U.S. 1050  (1986);
                                       

Benmuhar,  658  F.2d at  19  (finding  "systematic exclusion"  of
        

Hispanics as  a result of Commonwealth of Puerto Rico's exclusion

of  non-Anglophones  from jury  service).   With  no datum  as to

Hispanic representation on  the Master Jury Wheel, and  given the

                                11

fact  that the baseline data for comprising the Master Jury Wheel

are the best available, there can be no reasonable inference that

the  relatively  small   Hispanic  underrepresentation  at  juror

orientation is attributable to anything other than the randomness

of the  draw from either  the resident  lists or the  Master Jury

Wheel.   Consequently, Pion generated no trialworthy issue on the

essential element  of "systematic exclusion," Duren,  439 U.S. at
                                                   

366.7

F.   Mandatory Minimum Sentence (21 U.S.C.   841(b)(1)(A)(ii))
                                                              

          Pion  contends that  the  sentencing  court  improperly

included  an unconsummated three-kilogram  cocaine transaction in

calculating  the amount  for  which he  was responsible,  thereby

triggering the  minimum ten-year  sentence mandated by  21 U.S.C.

  841(b)(1)(A)(ii) (ten-year  minimum for distribution of five or

more  kilograms  of cocaine).8    At  sentencing, the  government

argued that Pion was responsible, under U.S.S.G.   2D1.1 comment.

(n.12) (1992) [hereinafter:  "note 12"], for the additional three

                    

     7Duren provides an instructive contrast.  There a very large
           
(39%)  absolute disparity existed between the percentage of women
                         
in  the  relevant population  and  their  representation on  jury
venires, a  disparity which the Court  found reasonably attribut-
able to a prominent feature in Missouri's jury-selection process;
that is,  the longstanding  practice of granting  women automatic
                                                                 
exemption from jury  service upon  request.  Duren,  439 U.S.  at
                                                  
366-67.  Pion points to  nothing in the Jury Plan, or  its imple-
mentation,  which  would  account  for the  much  smaller  (3.4%)
absolute disparity alleged here.

     8The  presentence  report  recommended  that  Pion  be  held
responsible for 3.5024 kilograms, the combined total delivered on
June 4 (approximately one-half kilogram) and July 3 (three  kilo-
grams).

                                12

kilograms  he negotiated to supply  Mendoza in July.9   The court

determined, pursuant  to note 12,  that Pion was  not "reasonably

capable  of producing"  the three  additional kilograms.10   Then

it supportably found  that the  object of the  conspiracy was  to

distribute in excess of six  kilograms of cocaine, including  the

additional three kilograms Pion agreed to supply Mendoza later in

July.11  Accordingly, the  court concluded that Pion  was subject

                    

     9Note 12 states in relevant part:

          The weight under negotiation in an uncomplet-
          ed  distribution shall  be used  to calculate
          the  applicable amount.   However,  where the
          court finds that the defendant did not intend
          to produce and was  not reasonably capable of
                        
          producing  the  negotiated amount,  the court
          shall exclude from the  guideline calculation
          the  amount that  it finds the  defendant did
          not intend to produce and  was not reasonably
                                   
          capable of producing.

(Emphasis added.)

     10The district court ruled: 

          I am  unable to find by  a fair preponderance
                              
          of the  evidence that Mr. Pion was reasonably
                                                       
          capable of producing  the negotiated  amount.
                                                      
          I've already  found that he intended  to pro-
          duce  it.   But on this  record, and  by this
          record I  include the presentence  report and
          all the representations made to me, I can not
          find that he  was reasonably capable of  pro-
          ducing the negotiated amount.

(Emphasis added.)  

     11The court found   

          by a fair preponderance of the evidence [that
          Pion] knowingly, intelligently and voluntari-
          ly entered into a course of conduct the nego-
          tiation for which  was and which contemplated
          the  delivery of  an additional  three kilog-
          rams, or  3,000 grams  of cocaine  within the

                                13

to the ten-year minimum sentence mandated by statute for conspir-

ing  to possess and distribute five or more kilograms of cocaine.

See  21 U.S.C.    841(b)(1)(A)(ii), 846.   Relying on the finding
   

that he was not  capable of producing the three  additional kilo-

grams negotiated on July 3,  see supra note 10, Pion  argues that
                                      

the  ten-year   minimum  sentence   mandated   under  21   U.S.C.

  841(b)(1)(A)(ii) does not apply.  We disagree.

          Pion's  position is confounded by the fact that note 12

is phrased  in the conjunctive.   See supra note 9.   It requires
                                           

the sentencing court to include the "weight under negotiation  in

an uncompleted distribution" unless  it finds that "the defendant

did  not  intend to  produce and  was  not reasonably  capable of
                                

producing the negotiated amount." Id. (emphasis added).  Further-
                                     

more, note 12 directs the  sentencing court    once again in  the

conjunctive     to  "exclude from  the guideline  calculation the

negotiated amount that it  finds the defendant did not  intend to

produce  and  was not  reasonably  capable  of  producing."   Id.
                                                                 

(emphasis added).   Its conjunctive phrasing  clearly is intended

to avoid inflated sentences based on drug-quantity discussions in

uncompleted  transactions where  the defendants were  merely puf-

fing;  that is,  where the  defendants did  not intend,  and were
                                                            

unable,  to  produce the  amount  under discussion.    Cf. United
                                                                 

States v. Moreno, 947 F.2d 7, 9 (1st Cir. 1991) (applying  former
                

                    

          following week. . . .

                                14

U.S.S.G.    2D1.4 comment.  (n.1)).  In  sum, Pion's  claim fails

because neither conjunctive clause in note 12 can be ignored.12

           Although the district court  did not find Pion reason-

ably  capable of  producing  the additional  three kilograms,  it

found that  he was a member  of a conspiracy whose  object was to

distribute  more  than six  kilograms  and  that he  specifically

intended  to further  the conspiratorial  objective.   See United
                                                                 

States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (no "impossibili-
                 

ty" defense available under     841(a)(i) and 846); United States
                                                                 

v. Everett, 700 F.2d  900, 904 (3d Cir. 1982)  (Congress intended
          

to eliminate "impossibility" defense  under   846); see generally
                                                                 

Wayne R. LaFave &amp; Austin Scott, Jr., 2 Substantive Criminal Law  
                                                               

6.5(b), at  90-93 (1986)  (discussing  limits of  "impossibility"

defense in conspiracy cases).  

          The  district  court  correctly concluded  that  Pion's

inability  to  produce  the  additional three  kilograms  was  no

                    

     12Although the parties assume that  the drug-quantity deter-
mination arrived at under note 12 does not govern for purposes of
triggering a  minimum sentence mandated by  statute ["MMS"], see,
                                                                
e.g., 21  U.S.C.   841(b)(1)(A)(ii),  note 12  is not limited  in
    
this  fashion.  Nor is there  a statutory directive that might be
thought to  govern the threshold drug-quantity  determination for
MMS  purposes.   Absent  a statutory  alternative, therefore,  we
think application note  12 provides  the threshold  drug-quantity
                                                  
calculus upon which depends  the statutory minimum sentence fixed
under 21 U.S.C.   841(b)(1)(A)(ii).  See United States v. Hughes,
                                                                
970 F.2d  227,  236  n.9  (7th Cir.  1992)  (discussing  U.S.S.G.
  2D1.4, a forerunner to U.S.S.G.   2D1.1 comment. (n.12) (1992)-
).

                                15

impediment  to its  imposition of  the ten-year  minimum sentence

mandated by statute.13 

          Affirmed. 
                  

                  - Concurring Opinion Follows -
                                              

                    

     13Since there has  been no showing of error,  Pion's cumula-
tive-error claim collapses.

                                16

          TORRUELLA,  Circuit Judge  (Concurring).    Although  I
                                   

agree  with  my colleagues  on  all  parts of  this  well-crafted

opinion, with the  exception of Part E thereof --  and even as to

that,  I conclude that appellant has failed to raise a cognizable

claim  before this court -- I must express myself separately with

respect to  the substance of the majority's reasoning in reaching

our common result.

          First of  all, the  court has reached  issues and  made

pronouncements thereon, which are  not properly before us.   I am

referring to appellant's allegation that the jury pool from which

the  petit jury was drawn  does not represent  a cross-section of

the community, thus violating the Sixth Amendment of  the Consti-

tution.  See, Duren v. Missouri, 439 U.S. 357 (1979).
                               

          This contention  was raised by appellant, after convic-
                                                         

tion,  as part  of a  supplemental motion  for a  new trial.   It

therefore clearly fails to comply with the provisions of the Jury

Selection  and Service Act of 1968, 28 U.S.C.   1861-1876, pursu-

ant to which:

            In  criminal  cases,  [challenges to  the
            composition of  the jury must  be raised]
            before the voir dire  examination begins,
            or  within seven days after the defendant
            discovered or could  have discovered,  by
            the  exercise  of diligence,  the grounds
            [for such a challenge] . . .

28 U.S.C.   1867(a).  This statute further establishes that:

            The procedures prescribed by this section
            shall be the exclusive  means by which  a
                                  
            person accused of a  federal crime, . . .
            may challenge any jury on the ground that
            such jury was not selected  in conformity
            with the provisions of this title.

                               -16-
                                16

28 U.S.C.   1877(e) (emphasis added).

          The  government's  apparent  lapse  in  not challenging

appellant's failure to comply with  these mandatory requirements,

and the district court's complacency therewith, are irrelevant to

determining  whether the issue is  properly before us.   The jury

challenge requirements  are to be strictly  construed and failure

to comply precisely with their terms  forecloses any challenge to

the composition of  the jury.  United States v.  Cooper, 733 F.2d
                                                       

1360 (10th Cir. 1984), cert. denied, 467 U.S. 1255 (1984); United
                                                                 

States v. Green,  742 F.2d 609 (11th Cir. 1984); United States v.
                                                              

Raineri, 670 F.2d  707 (7th  Cir. 1982), cert.  denied, 459  U.S.
                                                      

1035  (1982); United States v.  Bearden, 659 F.2d  590 (11th Cir.
                                       

1981), cert. denied, 456 U.S. 936 (1981); United States v. Young,
                                                                

570 F.2d 152 (6th Cir. 1978); United States  v. D'Alora, 585 F.2d
                                                       

16  (1st Cir. 1978); Government of Virgin Islands v. Navarro, 513
                                                            

F.2d  11  (3d Cir.  1975), cert.  denied,  422 U.S.  1045 (1975);
                                        

United States v. Fern ndez,  497 F.2d 730 (9th Cir.  1974), cert.
                                                                 

denied, 420 U.S. 990  (1974).  Any objection to  jury composition
      

which is not timely raised is considered waived for all purposes.

United States v.  Webster, 639  F.2d 174 (4th  Cir. 1981),  cert.
                                                                 

denied,  454 U.S.  857  (1981); United  States  v. Young,  supra;
                                                                

United States v. Grismore, 546 F.2d 844 (10th Cir. 1976).
                         

          The  record shows  that appellant  failed to  raise the

jury  composition  issue in  a timely  fashion,1  and thus,  as a

                    

     1There  is no  allegation  that appellant  was impeded  from
doing so for any valid reason, or that the information upon which
his claim is based was unavailable.

                               -17-
                                17

matter of law, he  is foreclosed from  the right to contend  this

matter on appeal.   We therefore need go no further.   Yet we do,

and  I am  thus  required to  express  my disagreement  with  the

majority's unnecessary dicta regarding the merits of this issue.

          As is well known, to establish a  prima facie violation

of  the cross-section  requirement, a  petitioner must  show: (1)

that  the group  alleged  to be  excluded  is a  "cognizable"  or

"distinctive" group in the community; (2) that the representation

of this group  in venires from  which juries are selected  is not

fair and reasonable  in relation to the number of such persons in

the  community; and  (3)  that the  underrepresentation in  peti-

tioner's venire is due  to the systematic exclusion of  the group

in  the jury-selection process.  Duren v. Missouri, 439 U.S. 357,
                                                  

364 (1979); Hern ndez v. Texas, 347 U.S. 475, 579 (1954).
                              

          There  should  be  little   doubt  regarding  the  cog-

nizability  of  Hispanics  for  Sixth Amendment  purposes.    See
                                                                 

Hern ndez  v. Texas, 347 U.S.  at 475; Thiel  v. Southern Pacific
                                                                 

Co., 328  U.S. 217,  220 (1986).   Where I  part company  with my
   

colleagues is in our relative application of the second and third

Duren prongs.
     

          In my view, in contrast with the majority,  the figures

presented by  appellant show  a statistically  significant under-

representation of Hispanics within the jury venire.  According to

the 1990 census, 4.2%  of the residents within the  Eastern Divi-

sion of  the District  of Massachusetts, the  relevant community,

are  Hispanics.  Yet Hispanics represent only .80% of the venires

                               -18-
                                18

for  that Division.   Otherwise  stated, although  the population

composition is such that  one would expect 42 Hispanics  to serve

on  the district  court's  jury for  every one-thousand  citizens

called  to such duty, in  fact only eight  Hispanics serve in the

venires  for  every  one-thousand  citizens  called.    Appellant

further contends  that  when  compared  with  other  identifiable

ethnic groups,  such as  non-minority whites, blacks  or American

Indians, only Hispanics are disproportionately underrepresented -

- and the statistics were produced to support this contention.

          According to  my calculations,  if one takes  the above

figures as correct, Hispanics  are underrepresented in the venire

by 80.95% as compared to their numbers in the community.2   Duren
                                                                 

v. Missouri, supra, at 364.  Such a disparity is not only statis-
                  

tically significant  but also  constitutionally cognizable.   Id.
                                                                 

My  method of  determining disparity  is dubbed  the "comparative

disparity" standard by my  colleagues, ante at 8 n.5,  which they
                                           

understand  should  not be  used  "where  [the] allegedly  under-

represented group  constitutes [a]  very small proportion  of the

total population."  Id.  Citing  United States v. Hafen, 726 F.2d
                                                       

21, 23-24 (1st  Cir. 1984), they promote  the so-called "absolute

disparity" standard, ante at 9 nn.5-6, whereby they conclude that
                         

                    

     2This  percentage  of  underrepresentation  is  measured  by
calculating  the  shortfall  between the  percentage  of eligible
                           
Hispanic  jurors (4.2%)  and the  percentage appearing  for juror
orientation (0.8%),  i.e., 3.4%, and then  dividing the shortfall
                                                                 
in Hispanic  representation (3.4%) by the  percentage of eligible
Hispanics (4.2%).

                               -19-
                                19

the  underrepresentation is only 3.4%,3 a spread which is said to

be  constitutionally insignificant.    Hafen tells  us that  this
                                            

system of calculating disparity should be used where the cogniza-

ble group is  small because if the "comparative disparity" method

is  used under those  circumstances, it will  distort "reality." 

Hafen, 726 F.2d at 24.
     

          I  believe  this  to  be an  erroneous  conclusion  for

several reasons.  First of  all, I find Hafen to run  contrary to
                                             

prior,  valid circuit precedent in  La Roche v.  Perrin, 718 F.2d
                                                       

500 (1st Cir. 1983),  which established the so-called comparative

disparity calculation  as  the circuit  standard for  determining

underrepresentation.  See also Barber v. Ponte, 772 F.2d 982, 989
                                              

n.n.11,  12 (1st Cir. 1985).   Hafen's attempt  to distinguish La
                                                                 

Roche is unconvincing.   Secondly, the majority's approach leaves
     

us  without any guide or standard as to when the cognizable group

is  to be  considered too  small or  large so  as to  trigger the

switch from  one standard to  the other.   It  would appear  that

applying  different constitutional  standards  to varied  groups,

depending  on whether  they are  large or  small, would  not only

raise substantial  equal protection issues, but  would defeat the

important goals  promoted by the  Jury Selection and  Service Act

and the Sixth Amendment.  The minorities  most in need of protec-

tion  are  those least  entitled to  it,  to allegedly  prevent a

"distortion  of reality."   I  might ask  who's "reality"  are we

talking about?  To my  view, the true distortion of "reality"  is

                    

     34.2% - .8% = 3.4%.

                               -20-
                                20

the  failure of a  criminal law system,  before which is  tried a

large number of persons  from an ethnic group, to  include within

its  mechanisms  the peers  of those  charged,  at least  in some

reasonable measured proportion to their membership in the popula-

tion.   Finally, on  its face the  so-called "absolute disparity"

standard appears to run  contrary to Duren, which speaks  to "the
                                          

representation of  [the] group in the community . . . in relation

[i.e.,  in comparison]  to  the number  of  such persons  in  the

community."  Duren, supra, at 364.  This language seems  to speak
                         

in comparative, not in absolute, terms.
              

          We  thus come  to  the issue  of systematic  exclusion.

Normally, systematic exclusion requires a showing of  substantial

disparity in numbers over  a sustained period of time,  Barker v.
                                                              

Ponte, 772 F.2d 982, 989 (1st Cir. 1985), something which has not
     

been  established by appellant in this case.  I believe, however,

that where the disparity established by  the claimant reaches the

proportion  of those in the present case, 80.95%, the burden must
                                                

be  shifted to  require the  government to  justify that  such an

aberration  is not the product of inappropriate conduct.  In most

cases, such  as perhaps the present one,  this should be a burden

easily explainable by the government.

          Had appellant complied  with the absolute  requirements

of  28 U.S.C.    1867, I  would  have voted  for reversal  of his

conviction.  Having  failed to  do so, however,  I concur in  the

affirmance  of his  conviction,  although as  indicated above,  I

believe that at least part of the majority's reasoning is flawed.

                               -21-
                                21
