
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1291                                    UNITED STATES,                                      Appellee,                                          v.                                    ROBERT WIHBEY,                                Defendant, Appellant.        No. 95-1394                                    UNITED STATES,                                      Appellee,                                          v.                                   CLAUDE WHITMAN,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Cyr, Boudin, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Jack St.  Clair with  whom Barbara  J.  Sweeney was  on brief  for            _______________            ____________________        appellant Wihbey.            Vincent A. Bongiorni for appellant Whitman.            ____________________            Dina Michael  Chaitowitz, Assistant United  States Attorney,  with            ________________________        whom  Donald  K.  Stern, United  States  Attorney,  was  on brief  for              _________________        appellee.                                 ____________________                                   February 6, 1996                                 ____________________                      STAHL, Circuit Judge.  Robert  Wihbey  and   Claude                      STAHL, Circuit Judge.                             _____________            Whitman were tried by  a jury and convicted of  conspiracy to            distribute  marijuana.   The  jury also  convicted Wihbey  of            possession  of marijuana  with  intent to  distribute.   Both            Wihbey and Whitman challenge their convictions on the grounds            that  the   prosecutor  made  improper  remarks   in  closing            argument,   and   that   the   government   proved   multiple            conspiracies,  not  the  single  conspiracy  charged  in  the            indictment.   Wihbey argues that the warrantless entry of his            home was not justified by exigent  circumstances and that the            evidence  against him does not support the drug quantity used            to calculate his sentence under the guidelines.  Whitman also            challenges  his sentence,  asserting that he  did not  play a            leadership role in the  conspiracy that justified an increase            in   offense  level.    Finding  no   error,  we  affirm  the            convictions and the resulting sentences.                                          I.                                          I.                                          __                                   FACTUAL OVERVIEW                                   FACTUAL OVERVIEW                                   ________________                      The evidence, taken in  the light most favorable to            the  verdict, permitted the jury to find the following facts.            See  United States v. Twitty, No. 95-1056, slip op. at 2 (1st            ___  _____________    ______            Cir.  December 28,  1995).   In the  spring of  1991, Richard            Britt  and  Thomas  Rohan  agreed to  work  together  dealing            marijuana.   Initially, they intended their  source of supply            to be appellant Claude Whitman and one Frank Camyre, but when                                         -2-                                          2            Camyre and Whitman repeatedly  failed to produce as promised,            Rohan cultivated another supplier, Robert Wihbey.  Meanwhile,            an informant for the Drug Enforcement Administration ("DEA"),            David DeCastro, had convinced Britt and Rohan that he had the            desire and ability  to buy  250 pounds or  more of  marijuana            (about  $500,000 worth).  Britt and Rohan, eager to recoup an            earlier loss in  a failed  marijuana deal, agreed  to act  as            middlemen in a large  sale to informant DeCastro.   Britt and            Rohan  informed both  of their  sources that  they had  a big            buyer on  the hook.   On  or  about November  22, 1991,  both            sources  independently obtained  shipments of marijuana.   On            November  23,  1991,  DEA  agents arranged  for  DeCastro  to            conduct  controlled  buys the  following  day  from both  the            Wihbey source and the Whitman/Camyre source.  Britt and Rohan            were arrested  during a buy from  Wihbey's associate, Michael            Weiner, who  was also arrested; all  three immediately agreed            to  cooperate.  Weiner led  the DEA agents  to Wihbey's home,            where they  arrested Wihbey and searched the premises.  Later            that day, Britt and Rohan cooperated with the DEA on a second            controlled buy,  from the  Whitman/Camyre source,  leading to            the  arrest of  Whitman, Camyre  and Whitman's  source, Roger            Brandt.   Further factual details will be  provided as needed            to analyze the several issues presented.                                         -3-                                          3                                         II.                                         II.                                         ___                                PROCEDURAL BACKGROUND                                PROCEDURAL BACKGROUND                                _____________________                      In  March 1993,  a  federal grand  jury returned  a            four-count indictment  that charged: in Count  One, that from            May  1991 through  November 23,  1991, Britt,  Rohan, Wihbey,            Weiner, Whitman, and Camyre  conspired to possess with intent            to distribute,  and to distribute, marijuana  in violation of            21  U.S.C.    846; in  Count Two,  that on  October  4, 1991,            Camyre  possessed  marijuana  with  intent  to distribute  in            violation of 21 U.S.C.    841(a)(1); in Count Three,  that on            November 22, 1991, Wihbey  possessed marijuana with intent to            distribute  in violation  of 21  U.S.C.    841(a)(1); and  in            Count Four, that on  November 23, 1991, Wihbey used  a pistol            during  and in  relation  to a  drug  trafficking offense  in            violation of 21 U.S.C.   924(c).                      Wihbey filed a motion to suppress physical evidence            and  a statement  obtained  from him  during the  warrantless            arrest  and search  at his  home, but  the motion  was denied            after an evidentiary  hearing.   Prior to trial,  all of  the            defendants  except  Wihbey  and Whitman  pleaded  guilty  and            agreed to  cooperate with the  government.  After  a five-day            trial in May 1994,  the jury found Wihbey and  Whitman guilty            of the conspiracy  count and Wihbey guilty  of the possession            with  intent  to  distribute   count.    The  jury,  however,            acquitted Wihbey on  the firearm count.   Wihbey and  Whitman                                         -4-                                          4            were sentenced in November 1994 and promptly filed notices of            appeal.                                         III.                                         III.                                         ____                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Warrantless Entry of Wihbey's Home            A.  Warrantless Entry of Wihbey's Home            ______________________________________                      1.  Facts                          _____                      The magistrate  judge found the following  facts at            the suppression hearing.  The  DEA investigation that led  to            the arrests in this case  was focused on a controlled buy  of            marijuana by the informant  DeCastro from Whitman and Camyre,            with Britt  and Rohan acting as  middlemen.  It was  only one            day before  the scheduled Whitman/Camyre buy  that DEA agents            learned that  Rohan had another source, Robert  Wihbey.  Late            in the afternoon of Friday, November 22, 1991, Rohan told the            informant  DeCastro that he had an  unnamed source that could            deliver 250 pounds of marijuana.  When DeCastro expressed his            interest in  purchasing  from both  this new  source and  the            Whitman/Camyre source, Britt and  Rohan drove DeCastro to the            Beekman   Place   condominiums   in  Agawam,   Massachusetts.            DeCastro wore a  transmitter, and was under audio  and visual            surveillance by  DEA special  agent Sean McDonough  and other            agents.   Rohan parked the car, got out, and returned shortly            thereafter   with  a  sample   of  marijuana  for  DeCastro's            approval.  The agents were unable to discern,  however, which            condominium unit Rohan  had entered, nor  did they learn  the                                         -5-                                          5            name of the new source.  DeCastro approved the  sample and he            and Rohan scheduled a 250 pound deal to take place at Rohan's            residence later that night.                      Early   that  evening,  DeCastro  called  Britt  to            confirm the arrangements, but  Britt stated that the delivery            would  have to  be  postponed until  8:00 a.m.  the following            morning,  Saturday, November  23, 1991.   The  following day,            Britt  and  Rohan met  DeCastro and  brought  him to  a house            (owned by Wihbey, but not used as his  residence) at 30 Arden            Street   in  Springfield,  Massachusetts.    There,  DeCastro            examined  ten pounds of  marijuana, and was  told by Wihbey's            associate, Michael Weiner, that there were thirty more pounds            in Weiner's  car.  Weiner advised the buyers that the rest of            the marijuana would be produced  in increments after the cash            for  the first  forty  pounds was  delivered  to the  source.            DeCastro said he  had to get his "money man," but he returned            instead with special agent McDonough, followed by a number of            DEA agents.   Britt, Rohan,  and Weiner were  arrested inside            the Arden Street house at about 11:00 a.m.; the DEA still had            not learned the identity  of the source (Wihbey) or  his unit            number at Beekman Place.                      Britt,  Rohan,  and   Weiner  promptly  agreed   to            cooperate with  the DEA agents,  and by 11:15 one  or more of            them had disclosed  that Wihbey  was the source  and that  he            lived  at  33 Beekman.    At  the  hearing,  agent  McDonough                                         -6-                                          6            conceded that at this  point he had probable cause  to arrest            Wihbey  and search  33 Beekman.   Nonetheless,  McDonough had            doubts  about  the credibility  of  the  three arrestees  and            decided to interview  them individually at  DEA headquarters;            these  interviews  began  at   11:30  that  morning.    Agent            McDonough  determined that  the  cooperating defendants  were            credible, and based on information they provided, that Wihbey            would grow suspicious if Weiner did not  return promptly with            $68,000 or call to explain the delay.  At   about  the   same            time, roughly noon, McDonough was also concerned with setting            up the  controlled buy  from Whitman and  Camyre.   McDonough            directed Britt to  contact Whitman or Camyre,  and the second            deal  was set  up  for  3:00  that  same  afternoon.    Thus,            McDonough was  involved to  some extent  with setting  up the            Whitman/Camyre  buy at the same time that he was preparing to            arrest Wihbey.                      Because  it was  Saturday, McDonough  believed that            application  for a warrant to arrest Wihbey in his home might            take  as long  as several  hours, and  that quick  action was            necessary  because Wihbey's growing  suspicion might motivate            him  to flee  or destroy  evidence.   At approximately  12:45            p.m., the DEA established surveillance of Wihbey's condo, and            at 1:00  p.m. Weiner and  Rohan entered, followed  by special            agent McDonough and other agents who "secured the apartment."                                         -7-                                          7            Wihbey  was found lying on  the basement floor  behind a pool            table, with a loaded pistol a few feet away.                      Agent  McDonough  placed  Wihbey under  arrest  and            advised him of his  rights.  McDonough then told  Wihbey that            they had no search warrant, but  would get one if needed;  he            asked  Wihbey to show the  agents where he  had marijuana and            guns.    Wihbey agreed,  and  during the  ensuing  search the            agents found 1200 grams of marijuana (about 2.7 pounds, which            McDonough characterized as "personal use" marijuana) and some            marijuana  paraphernalia.   Agent  McDonough  sought Wihbey's            cooperation, asking him to name his source.  Wihbey said that            he would  not give McDonough  the name of the  "guy above me"            because he  was a personal friend, but he would give the name            of the  "guy above him."   Agent McDonough  declined Wihbey's            offer of partial cooperation.                      2.  Analysis                          ________                      The  Constitution  requires  that  police  normally            obtain a warrant before  entering a person's home to  make an            arrest.   Payton v. New York, 445  U.S. 573, 590 (1980).  The                      ______    ________            government  says,   however,  that  in  this   case  "exigent            circumstances" excused the warrantless entry.  In determining            whether  an  exigency  justifies  a  warrantless  search  and            seizure,  the test  is "whether  there is  such a  compelling            necessity for immediate action as will not brook the delay of            obtaining  a warrant."  United States v. Wilson, 36 F.3d 205,                                    _____________    ______                                         -8-                                          8            209 (1st Cir. 1994) (quoting United States v. Adams, 621 F.2d                                         _____________    _____            41,  44  (1st  Cir.  1980)).    Exigency  determinations  are            generally fact-intensive and thus must  be made on a case-by-            case basis.   See United States  v. Donlin, 982  F.2d 31,  34                          ___ _____________     ______            (1st Cir. 1992), in  our past holdings, exigent circumstances            have commonly  included: (1) "hot  pursuit" of  a felon;  (2)            threatened destruction of evidence; (3) risk that the suspect            may  flee undetected;  and (4)  danger to  the safety  of the            public or the police.   See United States v. Tibolt, No.  94-                                    ___ _____________    ______            2221, slip op. at 8 (1st Cir. Dec. 29, 1995).   Exigency must            be  assessed in light  of the totality  of the circumstances.            United  States v.  Veillette,  778 F.2d  899,  902 (1st  Cir.            ______________     _________            1985), cert. denied, 476 U.S. 1115 (1986).                   _____ ______                      We defer  to the  district court's findings  of the            underlying  facts  unless clearly  erroneous,  but  we afford            plenary  review to  the district  court's legal  analysis and            ultimate conclusion.  Tibolt, slip op. at  8-9; United States                                  ______                    _____________            v. Curzi,  867 F.2d 36,  42 (1st Cir.  1989).  We  find clear               _____            error  only if, after reviewing all the evidence, we are left            with "the  definite and  firm conviction that  a mistake  had            been committed."  United States v. Rust, 976 F.2d 55, 57 (1st                              _____________    ____            Cir. 1992).                      The magistrate judge who conducted  the suppression            hearing  characterized  this  as  a  "borderline  case,"  but            nonetheless denied  the motion  to suppress.   The magistrate                                         -9-                                          9            judge  found that  Wihbey had  consented to  a search  of his            condominium  after he had  been arrested.   Thus the critical            issue  was  whether the  entry  to  arrest was  justified  by            exigent circumstances.                      The magistrate judge determined  that circumstances            were exigent based upon the following five "factors."  First,            it was reasonable for the DEA agents to choose not to prepare            part  or all of  a warrant on  the day before  the arrest, as            they did not know whom they were to arrest or, with requisite            particularity, where  the arrestee  lived.  Second,  it would            have  taken "substantially more  than two hours"  to obtain a            warrant  at  the relevant  time,  Saturday  morning or  early            afternoon.   Third, it was reasonable for  agent McDonough to            bring  Britt,  Rohan,  and  Weiner to  DEA  headquarters  for            further debriefing  before seeking a warrant  or taking other            action.  Fourth, it was reasonable for the agents to conclude            that there  was a compelling necessity  for immediate action,            based on  the likelihood that Wihbey would grow suspicious of            the  delay  in Weiner's  return,  causing Wihbey  to  flee or            conceal  or destroy evidence.   Fifth, the  DEA agents' plans            for a  second controlled  buy from  Camyre and  Whitman later            that  afternoon did  not precipitate  the decision  to arrest            Wihbey without a warrant.   Wihbey objected to the magistrate            judge's  report and  recommendation,  but the  district court            adopted the report and denied the motion to suppress.                                         -10-                                          10                      Before reviewing the  ruling below,  we narrow  the            issues  because  Wihbey  has  forfeited some  of  his  Fourth            Amendment  arguments  by  failing  to  press  his  objections            below.1   Wihbey's  challenge  to the  suppression ruling  is            therefore limited to those issues that he specifically raised            in  his  objection  to  the  magistrate  judge's  report  and            recommendation.   We  ignore Wihbey's  attempt to  "generally            object" to  the  magistrate judge's  report, as  well as  his            attempt to incorporate by reference the arguments made in his            pre-hearing  memorandum.   Wihbey  made two  objections  with            sufficient specificity:  (1) the  magistrate  judge erred  in            determining that  it was reasonable  for the agents  to delay            preparing for  a warrant  application until  Saturday morning            when  they learned  Wihbey's name  and address,  and (2)  the            magistrate  judge  erred  in  determining that  there  was  a            compelling   necessity  for  immediate  action,  because  the            exigency was  created by the  agents' investigative strategy.            We note that  Wihbey did not object to  any of the magistrate            judge's proposed  findings of the underlying  facts, but only                                            ____________________            1.  Rule 3(b) of  the Rules for United States  Magistrates in            the  United  States  District   Court  for  the  District  of            Massachusetts requires  a party  who objects to  a magistrate            judge's findings and recommendations to identify specifically            the objectionable  portions  of  the  proposed  findings  and            recommendations and  to state the  basis for objection.   The            magistrate  judge's report  contained a  clear  warning about            this  rule,  advising Wihbey  that  failure  to comply  would            preclude appellate review, citing  United States v. Valencia-                                               _____________    _________            Copete, 792 F.2d 4, 6 (1st Cir. 1986) (approving such a local            ______            rule).  See also 28 U.S.C.   636(b)(1).                    ___ ____                                         -11-                                          11            to the reasonableness of the agents'  actions and whether the            facts  constituted  exigent  circumstances.    In particular,            Wihbey did not object to the finding that Wihbey consented to            the search after he was arrested; thus the issue before us is            whether  the warrantless  arrest  was  justified  by  exigent            circumstances.  In any  event,  we find  no error,  let alone            clear error,  in the  magistrate judge's  findings as to  the            underlying facts.  As to the forfeited  arguments that Wihbey            now raises, we find that none of the asserted errors rises to            the level of plain  error which might justify reversal.   See                                                                      ___            United States v. Olano, 113 S. Ct. 1770, 1776-1779 (1993).            _____________    _____                           a.   Should the agents have  started a warrant                                _________________________________________                           application earlier?                           ____________________                      Contrary to his assertion on appeal, Wihbey's right            to be  free from unreasonable  searches and seizures  did not            impose a duty  on the investigating agents to begin preparing            for  a  warrant  prior  to the  arrest  and  interrogation of            Weiner, Britt, and Rohan on Saturday morning.  The DEA agents            did  not  learn Wihbey's  name or  which condominium  unit he            lived in until Saturday morning.  Moreover, prior to Weiner's            arrest,  the agents could not be sure whether Wihbey would be            at his condo or some other place, nor was there any assurance            that the suspects to be  arrested would cooperate and provide            that crucial information.  The DEA agents were  not obligated            to prepare a warrant application in advance merely because it                                         -12-                                          12            might have  been foreseeable that the  contemplated arrest of            Britt and  Rohan would lead the  agents to the  source of the            marijuana.   See United States  v. Cresta, 825  F.2d 538, 553                         ___ _____________     ______            (1st Cir.  1987) ("Although probable cause  existed some time            prior  to the  arrests,  this does  not  negate the  rise  of            exigent   factors.";   "Unforeseeability   has   never   been            recognized  as  an  element   of  the  exigent  circumstances            exception .  . . ."), cert. denied, 486 U.S. 1042 (1988).  We                                  _____ ______            therefore reject Wihbey's first basis for objection.                           b.  Were the circumstances exigent?                               ______________________________                      The  magistrate  judge  credited agent  McDonough's            statement that he had doubts  about the credibility of Britt,            Rohan, and Weiner,  and that it  was reasonable to  interview            them  in further  detail  before  proceeding against  Wihbey.            Therefore, it was only sometime after 11:30 a.m., about three            hours after the marijuana buy had begun, that McDonough faced            the crucial decision whether he had time to obtain a warrant.            The magistrate judge also  relied on McDonough's testimony in            finding that (1) it would take  substantially longer than two            hours to obtain  a warrant and (2) that  McDonough's decision            to  forego a warrant was not motivated by his desire to press            ahead with  the investigation of Whitman and  Camyre.  Wihbey            did  not specifically object  to those  recommended findings,            and  even if he had, those findings are not clearly erroneous            in light of  all the circumstances.  Because of  the delay in                                         -13-                                          13            Weiner's return to Wihbey, and Weiner's statement that Wihbey            would  be growing  suspicious, we  agree with  the magistrate            judge  and  the district  court  that  the agents  reasonably            feared  that  Wihbey  would   flee,  or  conceal  or  destroy            marijuana evidence before a warrant could be obtained.                      It is well established  that government agents must            act reasonably, based on  the objective facts available, when            deciding that a warrantless  entry is justified: "Whether the            basis for  such authority  exists is  the  sort of  recurring            factual question  to which law enforcement  officials must be            expected  to  apply  their   judgment;  and  all  the  Fourth            Amendment  requires  is  that  they  answer  it  reasonably."            Illinois  v. Rodriguez, 497 U.S.  177, 186 (1990).   We agree            ________     _________            with  the magistrate judge and the district court that it was            reasonable  for  the  agents  in  this  case  to   judge  the            circumstances exigent and to take action accordingly.                      Although  he  did  not  raise  the  argument below,            Wihbey now  argues that his suspicion could have been allayed            -- and the exigency  averted -- by a  phone call from  Weiner            assuring him that all was  well.  While that may be  true, it            does  not alter  our  conclusion.   It  was well  within  the            reasonable professional judgment of  the agents to choose not            to jeopardize a continuing investigation by  taking measures,            such as a phone call, that might (or might not) alleviate the            exigency.   The telephone  call might  have had the  opposite                                         -14-                                          14            effect, heightening Wihbey's  suspicion, and inducing him  to            immediately flee, or destroy or conceal evidence.                      We also reject Wihbey's argument that the  exigency            was created  by the DEA agents' investigative  strategy.  The            need for  quick action  arose upon the  agents' determination            that arrestees Rohan, Britt, and Weiner had provided reliable            information  about Wihbey  and  that he  would be  suspicious            because of  any further  delay in  getting back  to him.   We            accept the  magistrate judge's finding that the timing of the            second controlled buy did  not drive the agents'  decision to            forego a  warrant.  And, as  we have said, the  agents had no            duty to  prepare a warrant  application before the  arrest of            Rohan and  Weiner nor to attempt to  allay Wihbey's suspicion            with a phone call.  Wihbey  argues that the agents could have            established surveillance  of his condominium,  without entry,            to prevent Wihbey's flight, but that would not have prevented            the destruction of evidence within.  We see nothing about the            agent's  investigative strategy  that  created the  exigency.            This is not a situation where the agents deliberately created            the exigent circumstances.   The agents had no choice  but to            respond promptly  once they  learned that  Wihbey was  at his            condominium, undoubtedly growing suspicious as he awaited the            overdue  proceeds  of the  busted  transaction.   See  United                                                              ___  ______            States v. Cresta, 825 F.2d at 553.            ______    ______                                         -15-                                          15                      For the foregoing reasons,  we affirm the denial of            Wihbey's motion to suppress.                                         -16-                                          16            B.  Improper Arguments by the Prosecutor            B.  Improper Arguments by the Prosecutor            ________________________________________                      Wihbey and  Whitman seek a new  trial because, they            claim,  the prosecutor  in  closing argument  commented  upon            their failure  to testify,  shifted  the burden  of proof  to            them, and vouched for the government's witnesses.                      1.   Comment on Failure  to Testify and  Attempt to                           ______________________________________________                      Shift the Burden of Proof                      _________________________                      Wihbey  and  Whitman  contend  that  the  following            remark   (hereafter   "Comment   One"),   made   during   the            government's  summation, was  an  improper comment  on  their            failure to testify:                           What I would like to do, however, is                      talk to  you for a few  minutes about the                      three specific charges that are contained                      in the indictment . . . .                             The  first one, and  I would suggest                      to you  the most  important  one, is  the                      conspiracy  count   and  that  conspiracy                      count  lists, as you  know, six different                      persons -- four of them you heard from --                      Mr.  Britt, Mr.  Rohan,  Mr. Weiner,  Mr.                      Wihbey  and Mr.  Whitman and  Mr. Camyre.                      You've  heard from all of those witnesses                      _________________________________________                      except for obviously  the two  Defendants                      _________________________________________                      who have now been charged.                      __________________________            (emphasis added).                        Wihbey asserts that a second remark ("Comment Two")            was also an  improper comment  on his failure  to testify  as            well as an attempt  to shift the burden of proof to him.  The            prosecutor  recounted Wihbey's  post-arrest statement  to DEA            special agent  McDonough that  Wihbey would not  turn in  his                                         -17-                                          17            source because he was Wihbey's friend, but that he would give            the name of the friend's source.  Then the prosecutor said:                           Now,  if  Mr.  St.  Clair  [Wihbey's                      lawyer] can  stand  up and  explain  away                                            _                      that conversation to you, then you should                      let Bob  Wihbey walk  out of here  with a                      verdict of  acquittal.   But he can't  do                      that, ladies and gentlemen,  because that                      is  not a  conversation that  an innocent                      man,  who's  been falsely  accused, would                      have under those circumstances.                           There's  just  no other  explanation                      except the one that's been  provided from                      the  witness stand by the eight witnesses                      called by the government.            (emphasis added).                       At  the end  of the prosecutor's  summation, during            which  the prosecutor  made  Comments One  and Two,  Wihbey's            lawyer  asked  to approach  the  bench, but  the  trial judge            ordered him instead  to "move on with it for  now."  Wihbey's            lawyer  therefore   proceeded  with  his   closing  argument;            Whitman's lawyer followed.  After the  prosecutor's rebuttal,            Wihbey and Whitman both moved for a  mistrial, citing Comment            One as an improper  comment on their failure to  testify, and            citing  as improper a third comment.  We assume arguendo that                                                            ________            defense counsel's attempt to  approach, coupled with specific            mention in the mistrial motion, was a sufficient objection to            Comment  One to preserve the  issue for appeal.   We consider            Wihbey's failure  to mention  Comment Two  in the  motion for            mistrial, however, as a failure to object; therefore if there            was an error  in Comment Two, the error was  forfeited and is                                         -18-                                          18            reviewed for  plain error only.   See  Olano, 113  S. Ct.  at                                              ___  _____            1776-1779.                      Comment by a prosecutor on a defendant's failure to            testify  violates the Fifth Amendment guarantee against self-            incrimination.   Griffin  v.  California, 380  U.S. 609,  615                             _______      __________            (1965).  A court determines if a prosecutor's remarks violate            Griffin  by  asking "whether,  in  the  circumstances of  the            _______            particular case, the language used was manifestly intended or            was of such  a character  that the jury  would naturally  and            necessarily take  it to be  a comment on  the failure of  the            accused  to testify."   United  States  v. Akinola,  985 F.2d                                    ______________     _______            1105, 1111 (1st Cir. 1993)  (quoting United States v. Glantz,                                                 _____________    ______            810  F.2d 316,  322 (1st  Cir.), cert.  denied, 482  U.S. 929                                             _____  ______            (1987)).   If we find that a prosecutor has violated Griffin,                                                                 _______            we then review for harmless error.  United States v. Hasting,                                                _____________    _______            461 U.S.  499,  508-12 (1983)  (applying  the  constitutional            harmless error analysis established in Chapman v. California,                                                   _______    __________            386  U.S.  18, 24  (1967)).   In  Chapman, the  Supreme Court                                              _______            stated that a  prosecutorial comment  on the  failure of  the            accused  to testify would  not require reversal  if the State            could  show  "beyond  a   reasonable  doubt  that  the  error            complained of  did not  contribute to the  verdict obtained."            386  U.S. at  24.   The Supreme  Court clarified  the Chapman                                                                  _______            constitutional  harmless   error  standard  in   Sullivan  v.                                                             ________            Louisiana, 113 S.  Ct. 2078, 2081 (1993), explaining that the            _________                                         -19-                                          19            inquiry is "not  whether, in  a trial  that occurred  without            error,  a guilty verdict surely would have been rendered, but            whether the  guilty verdict  actually rendered in  this trial                                                               ____            was   surely  unattributable  to  the  error."  (emphasis  in            original).                      A very  different standard is applied  when a party            forfeits  an  error  by  failing to  make  a  contemporaneous            objection, as Wihbey  did with  respect to Comment  Two.   In            that  case, we have the discretion to reverse only for "plain            error," i.e., error  that is "clear"  and "obvious" and  that            was "prejudicial" to  the defendant in that it  "affected the            outcome of the  District Court proceedings."2   Olano, 113 S.                                                            _____            Ct. at 1777-78.  And, we exercise that discretion only if the            plain   forfeited  error  seriously   affects  the  fairness,            integrity, or public  reputation of judicial proceedings;  an            example of such an error is one that causes the conviction of            an actually innocent defendant.  Id. at 1779.                                             ___                      As  to  Comment  One,  we  find,  first,  that  the            prosecutor  did not  "manifestly  intend" to  comment on  the            defendants' failure  to testify.   See Akinola,  985 F.2d  at                                               ___ _______                                            ____________________            2.  After stating  that a forfeited error  was prejudicial if            it affected the outcome of the proceedings, the Supreme Court            in  Olano  stated:  "There  may  be  a  special  category  of                _____            forfeited errors  that can  be corrected regardless  of their            effect  on the  outcome . .  . ."   The  Court also adverted,            without specificity,  to a class  of errors  "that should  be            presumed prejudicial if the  defendant cannot make a specific            showing of prejudice."  113 S. Ct. at 1778.                                          -20-                                          20            1111.    The  context  of  the  comment  indicates  that  the            prosecutor  intended to list  the six persons  charged in the            conspiracy count and to  remind the jury that they  had heard            from four  of the six.  But,  apparently by mistake, he named            Wihbey and Whitman among those who testified.  The challenged            comment appears  to be an  unartful attempt  to correct  that            mistake,  by   reminding  the  jury  that   "of  course"  the            defendants did not testify.  Second, based on the context, we            find that  the jury would not "naturally and necessarily take            [the remark] to be a comment on the failure of the accused to            testify."  See id.  We think it likely that the jury took the                       ___ ___            comment the same  way we do, as an attempt  to clarify a slip            of the  tongue.  By saying "of course [the defendants did not            testify]," the prosecutor just  as plausibly has reminded the            jury  that the defendants' silence was  to be expected, i.e.,            that  it is  natural for  a defendant  to exercise  his Fifth            Amendment right.  The remark does not  necessarily imply that            the jury  should draw any negative inference from the failure            to  testify.    "A court  should  not  lightly  infer that  a            prosecutor  intends  an ambiguous  remark  to  have its  most            damaging  meaning or  that  a jury,  sitting through  lengthy            exhortation, will draw that meaning from the plethora of less            damaging interpretations."  United  States v. Lilly, 983 F.2d                                        ______________    _____            300, 307 (1st Cir.  1992) (quoting Donnelly v. DeChristoforo,                                               ________    _____________                                         -21-                                          21            416 U.S. 637, 647 (1974)).  Accordingly, we hold that Comment            One was not a Griffin violation.                          _______                      In contrast to Comment One,  we find Comment Two to            be effectively a comment on Wihbey's failure to testify,  and            that  the  jury likely  understood it  that  way.   Also, the            comment impermissibly  suggested that Wihbey bore  the burden            of proof.  See United States v. Skandier, 758 F.2d 43,  45-46                       ___ _____________    ________            (1st  Cir. 1985)  (holding that  a "how-does-counsel-explain"            argument is a Griffin violation and an impermissible shift of                          _______            burden of proof).   Wihbey, however, forfeited this  error by            failing to  object  or raise  it  as grounds  for  mistrial.3            Although  it was improper, Comment  Two does not  rise to the            level of  "plain error" under the Olano standard.  113 S. Ct.                                              _____            at 1776-79.                      In  light  of  all  the circumstances,  we  do  not            believe that  the comment affected the  outcome or "seriously            affected  the fairness,  integrity,  or public  reputation of            judicial  proceedings."4  Id. at 1779.  First, the judge gave                                      ___                                            ____________________            3.  We  recognize that,  after  the  prosecutor's  summation,            Wihbey's lawyer  asked "Your honor, may  I approach sidebar?"            We  must assume  he intended  to  object to  the prosecutor's            remarks.  The judge told counsel to  move on with his closing            argument.   Upon  being rebuffed,  counsel did  not state  an            objection or press further  the request to approach.   In any            event, counsel had  the opportunity to  raise Comment Two  as            grounds for  mistrial, but  specified only Comments  One (and            Comment Three, which we discuss further on).            4.  This  improper remark  by  the prosecutor  is not  in the            class of forfeited errors adverted to in Olano, 113 S. Ct. at                                                     _____            1778, which are  presumed to be prejudicial without regard to                                         -22-                                          22            a strong instruction on the defendants'  right not to testify            and the  government's burden  of proof.5   Second, there  was                                            ____________________            their  affect on the outcome.  Indeed, if Wihbey had objected            and preserved  the  error, it  would be  subject to  harmless            error  review, which of course  focuses on the  effect of the            error on the outcome.  See United States v. Hasting, 461 U.S.                                   ___ _____________    _______            499, 508-12 (1983).            5.  The relevant portions of the jury instruction follow:                           The  law presumes a  defendant to be                      innocent of a crime.  Thus, a  defendant,                      although accused, begins the trial with a                      clean  slate,  with  no evidence  against                      him.                           . . . .                           The  presumption of  innocence alone                      is sufficient to acquit a defendant . . .                      .                           . . . .                           The  burden  is   always  upon   the                      prosecution  to  prove  guilt   beyond  a                      reasonable doubt.                           Now  I told you  two or  three times                      during  this  trial  that the  Defendants                      have  a  constitutional   right  not   to                      testify  or offer  any evidence  on their                      behalf.   If  any  counsel stated  during                      final argument that the Defendant did not                      testify  in an  attempt to  impugn that's                      wrong and  something might be  wrong with                      them, I urge you now to completely ignore                      it and disregard it.                           The law  is clear a  defendant never                      has the burden of proving  his innocence,                      for   the  law   never  imposes   upon  a                      defendant in  a criminal case  the burden                      or  duty  of  calling  any  witnesses  or                      producing any evidence.  The   Government                      has the burden of proving to you beyond a                      reasonable doubt that the  Defendants are                      guilty  of  the  crimes  charged.    This                      burden of proof rests upon the Government                      and it never shifts to the Defendants.                           . . . .                           As  I told  you, the  Government has                      the  burden  of  proving  guilt   of  the                      Defendant  beyond   a  reasonable  doubt.                                         -23-                                          23            significant  (but  admittedly not  overwhelming)  evidence of            Wihbey's  guilt, enough  that we  find  it unlikely  that any            negative inference  drawn from his failure  to testify tipped            the  scale from  "not  guilty"  to  "guilty."   The  evidence            against  Wihbey  included  co-conspirator  testimony,  police            surveillance   of   pre-transaction  marijuana   sampling  at            Wihbey's condo complex, Wihbey's ownership of the house where            the   forty-pound  transaction  took   place,  marijuana  and            paraphernalia  seized  from   Wihbey's  condo,  and  Wihbey's            incriminating  post-arrest statement.    Given  the  curative            instruction and the  evidence of guilt, we are  not convinced            that the improper remark constituted plain error.                       2.  Witness Vouching                          ________________                      Wihbey and Whitman contend  that the prosecutor, in            his rebuttal, improperly vouched for the accomplice witnesses            who testified  under their  plea agreements.   The prosecutor                                            ____________________                      That burden remains  with the  Government                      throughout  the  entire  trial and  never                      shifts to the Defendant.                             Accordingly,   if   either  of   the                      Defendants  has  not  testified  in  this                      case, and neither have testified  in this                      case,   you   are  not   to   attach  any                      significance  to this  fact, and  you may                      not  in  any  way  consider  this against                      eitheroftheDefendantsinyourdeliberations.                           . . . .                           And further, you should bear in mind                      that  the  law   never  imposes  upon   a                      defendant in  a criminal case  the burden                      or  duty  of  calling  any  witnesses  or                      producing any evidence.                                         -24-                                          24            analogized the trial evidence  to a "mosaic" made up  of many            "tiles"  that   were   individually  imperfect   if   closely            scrutinized, but which nonetheless would give a clear picture            if  viewed  as  a whole.    After  making  that analogy,  the            prosecutor made the challenged comment ("Comment Three"):                      None  of  these  witnesses  are  perfect.                      None of them have perfect memories.                             But what they have done is testified                               ________________________________                      to you  truthfully about what  they knew,                      _________________________________________                      and despite the fact that  there are some                      imperfections in their testimony,  if you                      take  a step  back  from that  individual                      tile, you  will see  that the  Britt tile                      [government   witness]   and  the   Rohan                      [government  witness]  tile  go  hand  in                      hand.            (emphasis added).  There was no immediate objection.  But two            sentences later, the prosecutor ended his rebuttal, the judge            excused  the jury for lunch,  and the defendants  moved for a            mistrial,  arguing  that this  comment  was  improper witness            vouching.  The  question is close whether the defendants have            preserved  the issue for  appeal.   Compare United  States v.                                                _______ ______________            Sepulveda,  15  F.3d 1161,  1186-87  (1st  Cir. 1993)  (where            _________            defendant  did  not  object or  raise  improper prosecutorial            argument  until  motion  for  mistrial  after  conclusion  of            summations,  error forfeited  and  reviewed  for plain  error            only),  cert.  denied 114  S.  Ct. 2714  (1994),  with United                    _____  ______                             ____ ______            States  v.  Mandelbaum,  803  F.2d 42,  43  (1st  Cir.  1986)            ______      __________            (objection made after closing  arguments was timely enough to            preserve error for appeal, although it "should have been made                                         -25-                                          25            earlier)  and United  States v.  Levy-Cordero, 67  F.3d 1002,                      ___ ______________     ____________            1008   n.6  (1st  Cir.   1995)  (objection   after  arguments            sufficient  to preserve  issue for  appeal where  parties had            agreed  not to  object during  arguments).   For the  sake of            argument,  we will treat the issue as preserved for appeal as            if a contemporaneous objection had been lodged.                      An  improper argument  to  the jury  that does  not            implicate a defendant's  constitutional rights,  such as  the            witness vouching  that occurred here,  constitutes reversible            error  only   where  the  prosecutor's   remarks  were   both            inappropriate  and  harmful.   See  id.  at  1008.   Improper                                           ___  ___            statements during closing argument are considered harmful if,            given the  totality of the circumstances, they  are likely to            have  affected  the trial's  outcome.6    Id. (citing  United                                                      ___          ______                                            ____________________            6.  Prosecutorial arguments that  implicate a  constitutional            right of  the accused  are reviewed under  a higher  standard            than arguments that are  improper, but not  unconstitutional.            See Steven A Childress and Martha S. Davis, Federal Standards            ___                                         _________________            of Review    11.23 (2d  ed. 1992).   We have repeatedly  held            _________            that  an "inappropriate"  comment is  not a  reversible error            unless  it  is likely  to have  affected  the outcome  of the            trial.  See,  e.g., United States  v. Cartagena-Carrasquillo,                    ___   ____  _____________     ______________________            70  F.3d 706,  713 (1st  Cir. 1995);  United States  v. Levy-                                                  _____________     _____            Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995); United States v.            _______                                      _____________            Ovalle-M rquez,  36  F.3d 212,  220  (1st  Cir. 1994),  cert.            ______________                                          _____            denied, 115 S. Ct.  947 (1995); United States v.  Manning, 23            ______                          _____________     _______            F.3d 570, 574 (1st Cir. 1994).                      The Supreme Court, however, has held that a comment            on  the failure of the accused to testify is a constitutional            violation, without inquiry as  to its affect on the  outcome.            Griffin v. California, 380  U.S. 609, 615 (1965).   Indeed, a            _______    __________            Griffin comment  is a reversible error  unless the government            _______                                            __________            can persuade the appellate court that it was  harmless, i.e.,                                                          ________            did  not affect the outcome.   See United  States v. Hasting,                 ___                       ___ ______________    _______            461 U.S. 499,  507-09 (1982); Chapman v. California, 386 U.S.                                          _______    __________                                         -26-                                          26            States v.  Manning, 23 F.3d  570, 574 (1st  Cir. 1994)).   In            ______     _______            making  that determination, we  focus on (1)  the severity of            the  prosecutor's   misconduct,  including  whether   it  was            deliberate  or  accidental;  (2)  the context  in  which  the            misconduct  occurred;  (3)  whether the  judge  gave curative            instructions and the likely  effect of such instructions; and            (4) the strength of the evidence against the defendants.  Id.                                                                      ___                      Although the prosecutor's statement that "what they            have  done  is  testify  truthfully"  was inappropriate,  our            consideration of these factors  leads us to conclude  that it            was not harmful.   First,  the witness vouching here was not,            on  balance, severe.    The prosecutor  did  not express  his            personal opinion  about the  witnesses' veracity,  see United                                                               ___ ______            States v.  Mejia-Lozano, 829 F.2d  268, 273 (1st  Cir. 1987);            ______     ____________                                            ____________________            18, 26 (1967).                      It appears that this  court has on occasion treated            Griffin  comments like  other  improper  comments,  affirming            _______            convictions  where  the  panel  found it  unlikely  that  the            comments affected the outcome.   See, e.g., United States  v.                                             ___  ____  _____________            Glantz,  810 F.2d 316, 320 (1st Cir.), cert. denied, 482 U.S.            ______                                 _____ ______            929 (1987); United States v. Cox, 752 F.2d 741, 744 (1st Cir.                        _____________    ___            1985).  These  cases may overstate the  defendant's burden in            demonstrating a Griffin violation.                              _______                      It  is clear that a  comment on the  failure of the            accused  to testify is a constitutional error, and the burden            rests with the government to show the error harmless beyond a            reasonable doubt, not with the  defendant to show the comment            was  harmful.    See,  e.g.,  Hasting,  461 U.S.  at  507-09;                             ___   ____   _______            Chapman, 386 U.S. at 26.            _______                      On the  other hand, in cases  where defendants have            challenged  non-constitutional  inappropriate  comments,  the            burden  rests with the defendant to show that the comment was            harmful, i.e., that "under  the totality of the circumstances            they   affected   the   trial's   outcome."   See  Cartagena-                                                          ___  __________            Carrasquillo, 70 F.3d at 713; Levy-Cordero, 67 F.3d at 1008.            ____________                  ____________                                         -27-                                          27            nor did the prosecutor suggest that  he had special knowledge            about   the   witnesses'   credibility,   or   that   special            circumstances such as an oath or a plea agreement ensured the            witnesses'  honesty, see Manning, 23  F.3d at 572,  575.  The                                 ___ _______            purpose of the "mosaic" analogy  and the vouching comment was            to concede the existence of imperfections and inconsistencies            in  the  accomplices'  testimony,  and to  argue  that  those            inconsistencies  did not indicate  dishonesty or fabrication.            Although the witness vouching seems to have been intentional,            in  that it  was part  of a clearly  planned oration,  it was            fairly  mild and barely crossed the line of impropriety.  See                                                                      ___            United  States v.  Oreto, 37  F.3d 739,  746 (1st  Cir. 1994)            ______________     _____            (prosecutor's argument that "nobody lied" was "mild vouching,            essentially harmless"), cert. denied, 115 S. Ct. 1161 (1995);                                    _____ ______            United States  v. Innamorati, 996  F.2d 456,  483 (1st  Cir.)            _____________     __________            (stating that the line between proper argument that a witness            is  credible and  improper vouching  is "often  hazy"), cert.                                                                    _____            denied, 114 S. Ct. 409 (1993). The   context  in   which  the            ______            vouching occurred has aspects  that suggest harmfulness,  and            aspects that cut the other  way.  On the one hand,  the final            lines of  the prosecutor's  rebuttal are  thought to  leave a            lasting impression on the jury.  See Manning, 23 F.3d at 575.                                             ___ _______            On the  other hand, the  vouching was to  some extent  a fair            response  to  the  thrust  of the  defense  summation,  which            emphasized that the accomplices were liars and that they were                                         -28-                                          28            exaggerating,  coloring  their  testimony,  and  telling  the            government what they  wanted to hear.  See  Mejia-Lozano, 829                                                   ___  ____________            F.2d  at 268,  274 (prosecutor  given "greater  leeway" where            vouching was "in  response to defense  counsel's inflammatory            statements").                      The  judge  gave  a strong  and  specific  curative            instruction.                           Statements and  arguments of counsel                      are not evidence in the case . . . .                             If  any  attorney  in  the  case  in                      closing  arguments stated to  you that my                      clients or my  witnesses told the  truth,                      ignore it.  It's  what you determine from                      the witnesses  and  the evidence  in  the                      case, from the point of  view of deciding                      facts, that will control  the credibility                      of all witnesses; it  will be for you and                      only for you to determine.            Although  the curative  instruction was  not contemporaneous,            the  defendants did not object to  the witness vouching until            after  the prosecutor finished his  rebuttal and the jury was            excused for lunch.  The earliest opportunity for the judge to            give  a curative instruction was during the final charge.  We            normally presume that  a jury will  follow an instruction  to            disregard inadmissible evidence or an improper argument.  See                                                                      ___            Greer v.  Miller, 483 U.S. 756,  766 n.8 (1987).   We find it            _____     ______            likely that this forceful instruction effectively neutralized            the vouching that occurred here.                      Finally,  the evidence  against Wihbey  and Whitman            was sufficiently strong for us to conclude, after considering                                         -29-                                          29            the totality of circumstances, that the vouching was unlikely            to affect  the outcome of the trial.  As noted in our earlier            analysis  of Comment  Two,  the evidence  against Wihbey  was            substantial.  The evidence against Whitman was even stronger;            it included  the testimony  of his accomplices  Britt, Rohan,            Camyre,  and Brandt,  pre-arrest tape  recorded conversations            where  Whitman's  accomplices explicitly  discussed Whitman's            role in  the marijuana  distribution plans, and  testimony by            DEA  agents  about   Whitman's  post-arrest  cooperation  and            statements  that  made  his   role  in  a  planned  marijuana            transaction  rather clear.   We  therefore conclude  that the            vouching in this case did not constitute reversible error.                      3.  Motions for Mistrial and New Trial                          __________________________________                      We    recognize    that   several    incidents   of            prosecutorial  misconduct,  none  of which  would  separately            constitute grounds  for  mistrial, could  have  a  cumulative            impact on the jury sufficient to affect  the trial's outcome.            We review a trial judge's ruling on a motion for a  mistrial,            or for a  new trial,  only for abuse  of discretion.   United                                                                   ______            States v. Barbioni, 62 F.3d 5, 7 (1st  Cir. 1995) (motion for            ______    ________            mistrial);  Glantz, 810  F.2d at  320 &  n.2 (motion  for new                        ______            trial because of improper  argument).  Although the Assistant            United States Attorney in  this case exceeded the permissible            limits  of proper argument, we cannot say that his action was            deliberate and we  do not believe that the closing arguments,                                         -30-                                          30            viewed collectively, affected the  outcome or the fairness of            this trial.  For the  reasons set forth in our review  of the            challenged comments,  we hold  that the  trial judge  did not            abuse his discretion in denying the defendants' motions for a            mistrial and for a new trial.                                         -31-                                          31            C.  Single Conspiracy vs. Multiple Conspiracies            C.  Single Conspiracy vs. Multiple Conspiracies            _______________________________________________                      The  jury convicted both  Wihbey and  Whitman under            Count I of  the indictment, which charged  a single marijuana            distribution conspiracy among six persons (the two defendants            along with  Britt, Rohan,  Weiner, and  Camyre).   Wihbey and            Whitman argue that the evidence was insufficient to allow the            jury  to  find a  single  conspiracy, and  that  the evidence            showed instead two separate conspiracies.                      The framework for analyzing when a variance between            the conspiracy charged and the conspiracy proven  constitutes            reversible error was set forth in United States v. Glenn:                                              _____________    _____                      (1) Is the  evidence sufficient to permit                      a jury  to  find the  (express or  tacit)                      agreement  that  the indictment  charges?                      (2) If not, is  it sufficient to permit a                      jury, under a proper set of instructions,                      to  convict the  defendant of  a related,                      similar conspiracy?  (3) If so [i.e., the                      answer to  (2) is yes], does the variance                      affect the defendant's substantial rights                      or  does  the   difference  between   the                      charged  conspiracy  and  the  conspiracy                      proved amount to "harmless error?"            828  F.2d 855, 858 (1st  Cir. 1987).   Put differently, "[s]o            long as  the statutory violation  remains the same,  the jury            can convict  even if  the facts  are somewhat different  than            charged  -- so long as  the difference does  not cause unfair            prejudice."  United States  v. Twitty, No. 95-1056, slip  op.                         _____________     ______            at 3  (1st Cir.  Dec. 28, 1995)  (citing Glenn,  828 F.2d  at                                                     _____            858).                                          -32-                                          32                      This court  has recognized  at least three  ways in            which such  a variance might "affect  the substantial rights"            of the accused.   United States v. Sutherland, 929  F.2d 765,                              _____________    __________            772-73 (1st Cir.), cert. denied, 503 U.S. 822 (1991).  First,                               _____ ______            a  defendant  may receive  inadequate  notice  of the  charge            against him and  thus be  taken by  surprise at  trial.   Id.                                                                      ___            Second,  a defendant may be  twice subject to prosecution for            the same offense.   Id.  Third, a defendant may be prejudiced                                ___            by "evidentiary spillover": the  "transference of guilt" to a            defendant   involved  in   one   conspiracy   from   evidence            incriminating defendants in  another conspiracy in  which the            particular defendant was not involved.  Id.                                                      ___                      The question  whether a  given body of  evidence is            indicative of a single  conspiracy, multiple conspiracies, or            no conspiracy at all is ordinarily a matter of fact; a jury's            determination in that  regard is subject  to review only  for            evidentiary sufficiency.   United  States v. David,  940 F.2d                                       ______________    _____            722,  732 (1st Cir.), cert.  denied, 502 U.S.  989 (1991), et                                  _____  ______                        __            al..  In reviewing  the sufficiency of the evidence,  we take            ___            the evidence in the light most favorable to the verdict.  Id.                                                                      ___            at  730.  We review  de novo the  question whether a variance                                 __ ____            affected a defendant's substantial  rights.  United States v.                                                         _____________            Arcadipane, 41 F.3d 1, 6 (1st Cir. 1994).            __________                      Wihbey  and Whitman  assert  that the  evidence was            insufficient  "to demonstrate  that  all of  the alleged  co-                                         -33-                                          33            conspirators    directed    their    efforts   towards    the            accomplishment of  a common  goal or overall  plan."   United                                                                   ______            States v.  Drougas, 748 F.2d 8,  17 (1st Cir. 1984).   But we            ______     _______            find  it unnecessary  to engage in  that factual  inquiry; we            shall assume for the  sake of argument that the  evidence was            insufficient  to  convict either  Wihbey  or  Whitman of  the            charged single  conspiracy, satisfying the first  part of the            tripartite Glenn framework.  See 828 F.2d at 858.  Wihbey and                       _____             ___            Whitman properly  concede,  however, that  the  evidence  was            sufficient  to  prove that  each  participated  in a  related            similar,  but smaller,  conspiracy, and their  arguments jump            directly from the first prong to the third (prejudice) prong.            Specifically, they  concede that the evidence  was sufficient            for  a  rational  juror  to find  agreements  to  traffic  in            marijuana  among  (1) Wihbey,  Weiner,  and  Rohan,7 and  (2)            Whitman, Camyre, Britt, and Rohan.  Thus, the second prong of            Glenn is satisfied.  See id.  Wihbey   and   Whitman   argue,            _____                ___ ___            however,  for a  new trial  because the variance  between the            single  conspiracy  charged  and  the  multiple  conspiracies            proven  was  prejudicial  to   them  because  of  evidentiary            spillover.    We  therefore proceed  to Glenn's  third prong,                                                    _____            making two assumptions.   We assume  first that the  evidence                                            ____________________            7.  Although Britt  was arrested along with  Weiner and Rohan            during  the Wihbey-supplied  transaction  at  Wihbey's  Arden            Street  house, Britt  is  not included  in  this first  group            because we are assuming arguendo that there were two separate                                    ________            conspiracies.                                           -34-                                          34            was insufficient to prove  the single conspiracy charged, and            second,  as  the defendants  concede  and  as ample  evidence            supports,  that there  were  two separate  conspiracies:  (1)            Wihbey  agreeing to  sell 250 pounds  of marijuana  to Rohan,            with Weiner  acting as  Wihbey's agent,  and (2)  Whitman and            Camyre agreeing  to sell Britt and  Rohan thirty-seven pounds            of  marijuana  obtained from  Brandt.   Even  if  the assumed            variance existed between the conspiracy charged and the proof            at  trial, it did not prejudice either Wihbey or Whitman, and            it was therefore  harmless under  the Glenn  framework.   See                                                  _____               ___            Glenn, 828 F.2d at 858.  We explain.            _____                      Wihbey  and  Whitman  argue that  the  variance was            prejudicial  because there  was  "an  improper imputation  of            guilt"  to each of them  from the other's  conspiracy.  After            reviewing  the   trial  record,   we  reject  the   claim  of            prejudicial  evidentiary spillover for the following reasons.                      First,  the   defendants'  briefs  cite   only  two            specific instances of evidentiary spillover.  One instance is            Britt's testimony that Rohan said he had a friend (implicitly            Wihbey)  who  could supply  250  pounds  of marijuana.    But            Rohan's  statements  about  Wihbey  do not  spill  over  from            another  conspiracy in which Wihbey did not take part; on the            contrary, the  evidence clearly showed  that Wihbey conspired            with Rohan.   Therefore, Britt's testimony as to Rohan's out-                                         -35-                                          35            of-court  statement was  admissible against  Wihbey as  a co-            conspirator   statement  under   Federal  Rule   of  Evidence            801(d)(2)(E), thus there  was no "spillover" to  Wihbey.  And            as  to  Whitman,  Rohan's   statement  is  probative  of  the            agreement  between  Britt  and  Rohan and  thus  relevant  to            proving  the conspiracy  between Britt,  Rohan, Whitman,  and            Camyre.    The  testimony  was not  "spillover"  because  the            evidence  clearly  showed that  Whitman  and  Rohan were  co-            conspirators,  rendering  the  statement  admissible  against            Whitman under Fed. R.  Evid. 801(d)(2)(E).  Thus, as  to both            Wihbey and Whitman, the cited statement by Rohan was relevant            and independently  admissible without regard to the existence            of the larger conspiracy (which we are assuming arguendo  was                                                            ________            not proven).  See United States  v. O'Bryant, 998 F.2d 21, 26                          ___ _____________     ________            (1st Cir. 1993) (no spillover where evidence was relevant and            independently admissible).                       The other cited instance of  evidentiary spillover            was Britt's testimony  that he and Rohan were  "going to do a            separate  deal" together  (implicitly  with  Wihbey).    That            statement might  be fairly  characterized as spillover  as to            Wihbey,   given  our   assumption  that   the  evidence   was            insufficient   to  tie   Britt  to   the  Wihbey-Rohan-Weiner            conspiracy.   But, even if  Wihbey had been  given a separate            trial, the jury would have properly heard testimony about the            arrest of Britt  and Rohan while buying marijuana from Wiener                                         -36-                                          36            in Wihbey's Arden Street house.  Thus, it is hard  to see how            there  could  be  any  marginal probative  value  in  Britt's            statement  that  he and  Rohan had  planned  to do  that deal            together.   And, once again, this testimony  is not spillover            as  to  Whitman,  against  whom  it  would  be  relevant  and            independently  admissible, because  the evidence  showed that            Britt, Rohan,  and Whitman  were co-conspirators.   Thus, the            defendants  have  identified only  one  specific  instance of            evidentiary spillover,  which we  find harmless, and  we will            not hypothesize the existence of other instances.                      Second, the  trial judge  gave  a jury  instruction            that cautioned against using spillover evidence:8                       In  reaching your  verdict, keep  in mind                      that   guilt   is   both   personal   and                      individual.   Your verdict  must be based                      solely upon the evidence  presented about                      each  Defendant.   The case  against each                      Defendant stands or falls upon  the proof                      or lack of  proof against that  Defendant                      alone.  Your verdict  as to one Defendant                      should not influence your decision  as to                      the other Defendant.            The trial judge gave similar instructions again when charging            the jury on the elements of conspiracy and what evidence they                                            ____________________            8.  The judge also gave a multiple conspiracy instruction, to            the  effect that the jury  must acquit both  defendants if it            found that the single conspiracy charged did  not exist, even            if it found other  conspiracies.  Thus, the jury  verdict can            be seen  as an effective rejection of the multiple conspiracy            theory.  See United  States v. Sepulveda, 15 F.3d  1161, 1191                     ___ ______________    _________            (1st  Cir.  1993),  cert. denied,  114  S.  Ct. 2714  (1994).                                _____ ______            However,  we have assumed for  the sake of  analysis that the            evidence  was insufficient  to support  that verdict,  and we            have momentarily embraced the multiple conspiracy theory.                                         -37-                                          37            could consider as proof of a  conspiracy.  These instructions            were aimed at preventing evidentiary spillover, and we do not            readily  assume  that  a  jury  disregards  clear directions.            Greer, 483  U.S. at 766 n.8.   The defendants did not request            _____            any other instruction as to spillover, nor did they object to            this one.                      Third,  Wihbey's  activities   (and  the   evidence            thereof) were quite distinct from  Whitman's; each separately            agreed to supply marijuana  to a middleman (Rohan, at  least,            and perhaps Britt) for resale to the informant DeCastro.  The            question  here  is  whether  evidence about  Wihbey  and  his            conspiracy spilled over to  prejudice Whitman, or vice versa.            Assuming,  as we  are,  two separate  conspiracies, with  the            Wihbey sale  distinct from  the Whitman sale,  the defendants            have not  explained how the  jury could  have found  evidence            from one conspiracy to be particularly probative of the other            conspiracy.   See United States  v. Dworken, 855  F.2d 12, 24                          ___ _____________     _______            n.24 (1st  Cir. 1988)  (evidence  from separate  conspiracies            unlikely  to have spillover effect).  We see little about the            fact that one of the defendants agreed to  sell to Rohan that            makes  it more likely that the other defendant also agreed to            sell to Rohan.  All we are left with is  the possibility that            some  general, non-specific transference  of guilt  must have            occurred.  The appellants have not pressed that argument, and            in  any event we find  such any such  general transference of                                         -38-                                          38            guilt  in this case to be  harmless under the totality of the            circumstances.                        Wihbey   also  asserts   that   the  variance   was            prejudicial  in that he was  sentenced for the  250 pounds of            marijuana  he agreed  to  sell Rohan  rather  than the  forty            pounds actually delivered.  We see no merit in that argument.            Drug quantity is  not considered  by the jury  an element  of            either the conspiracy or the possession count,  but is rather            a matter  for the district  court to consider  at sentencing.            See  United States v. Campbell, 61 F.3d 976, 979-80 (1st Cir.            ___  _____________    ________            1995) (no specific quantity need be proven at trial; quantity            typically  relevant  only  at sentencing  stage).   Moreover,            evidence  of  the 250  pound  quantity was  derived  from the            smaller conspiracy of which Wihbey was clearly part, thus his            claim that his sentence was affected by the asserted variance            and  some  associated evidentiary  spillover  is particularly            difficult to fathom.                      "To prevail on a  claim of prejudicial spillover, a            defendant  `must   prove  prejudice   so  pervasive  that   a            miscarriage  of  justice looms.'"    United  States v.  Levy-                                                 ______________     _____            Cordero, 67 F.3d  1002, 1008 (1st Cir.  1995) (quoting United            _______                                                ______            States v. Pierro,  32 F.3d  611, 615 (1st  Cir. 1994),  cert.            ______    ______                                        _____            denied, 115 S. Ct. 919  (1995)) (citations omitted).  Because            ______            Wihbey and Whitman have  fallen far short of such  a showing,            we conclude  that any variance between  the single conspiracy                                         -39-                                          39            charged and  the conspiracy  or conspiracies proven  at trial            was  not prejudicial to the defendants and is not grounds for            reversal.            D.  Sentencing Issues            D.  Sentencing Issues            _____________________                      Wihbey and Whitman both contend that the sentencing            judge  made  erroneous  factual findings  material  to  their            sentencing  under the  federal  sentencing  guidelines.   For            sentencing  purposes,   the   government  must   prove   drug            quantities by a preponderance of the evidence.  United States                                                            _____________            v.  Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993).  We review                _________            the sentencing  court's factfinding  for clear error,  id. at                                                                   ___            1196, reversing only if, after reviewing all of the evidence,            we  are left  with the  definite and  firm conviction  that a            mistake has been  made.  United States v. Rust,  976 F.2d 55,                                     _____________    ____            57 (1st Cir. 1992).                      1.  Wihbey's Sentence:  Drug Quantity                          _________________________________                      Wihbey asserts that the sentencing  judge committed            clear error  in determining  the drug quantity  for guideline            sentencing  purposes.    The  commentary  to  the  applicable            guideline provides:                      In  an  offense involving  negotiation to                      traffic  in  a controlled  substance, the                      weight    under    negotiation   in    an                      uncompleted 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                                         -40-                                          40                      the  amount that  it finds  the defendant                      did  not intend  to produce  and  was not                      reasonably capable of producing.            United  States Sentencing  Commission,  Guidelines Manual,                                                       _________________            2D1.1, comment. (n.12) (Nov.  1, 1994).  The judge  found the            applicable quantity of marijuana to be 250 pounds, the amount            Wihbey had agreed to sell to Rohan according to the testimony            of  Wihbey's co-conspirators.   Wihbey  points out  that only            forty  pounds changed hands  in the  controlled buy  and less            than  three   more  pounds  were  found   later  in  Wihbey's            condominium.  As the  guideline commentary suggests, we first            examine the evidentiary basis for determining that 250 pounds            was the negotiated  amount, which  as a general  rule is  the            applicable  quantity,   and  then  we  examine   whether  the            exception to the general rule should have been applied.                      The sentencing judge  presided at  trial and  heard            and observed  the testimony  of all  the witnesses, which  we            find sufficient  to support  his drug quantity  finding under            our  deferential standard  of review.   Rohan  testified that            Wihbey agreed  to sell 250 pounds  in fifty-pound increments.            Weiner also testified  that the deal was "for  something like            250 pounds."   Rohan, Britt, and DeCastro  discussed the 250-            pound purchase in  their tape-recorded  conversation.   Britt            testified  that Rohan said his  source had 200  to 250 pounds            available, and the deal would go forward in fifty-pound lots.                                         -41-                                          41                      Wihbey   argues   that  the   testimony   of  these            cooperating co-conspirators was unreliable.  Our observations            in United States v. Zuleta-Alvarez are applicable here:               _____________    ______________                      In  this  case, there  existed sufficient                      indicia of reliability to  avoid reversal                      for clear  error.  First, the testimony .                      .  . relied upon  by the sentencing judge                      was all provided under oath . . . and was                      corroborated  by  the many  witnesses who                      testified  .   .  .  .     Moreover,  the                      sentencing judge was  also the  presiding                      judge during the prior proceedings.  Thus                      the sentencing judge had  the opportunity                      to  observe  the  testimony   and  cross-                      examination of the various  witnesses and                      could   thereby   make   an   independent                      assessment of their credibility.            922  F.2d 33, 36-37 (1st  Cir. 1990), cert.  denied, 500 U.S.                                                  _____  ______            927 (1991).   Based on  the testimony at  trial, the  judge's            factual finding that the negotiated amount was 250 pounds was            not clearly erroneous.                      In addition to challenging the  evidentiary support            for the  finding that the  negotiated amount was  250 pounds,            Wihbey  argues that  there was  insufficient evidence  of his            intention and  capability to deliver  that amount.   But that            argument  misses  the  mark;  it  seems  to  be  based  on  a            misreading  of the directive of commentary note 12 to   2D1.1            of the guidelines.                      We have interpreted  application note  12                      as directing  that  the amount  of  drugs                      under negotiation must  be considered  in                      determining   the   applicability  of   a                      minimum  mandatory   penalty  unless  the                      sentencing  court supportably  finds both                                                           ____                      that  the  defendant  did not  intend  to                                         -42-                                          42                      produce   the   additional  quantity   of                      narcotics,   and   that  he   lacked  the                                   ___                      capacity to do so.            United  States v.  Muniz,  49 F.3d  36,  42 (1st  Cir.  1995)                               _____            (emphasis  in  original).    In  other  words,  as  the plain            language of  the guideline  comment dictates, the  negotiated            amount applies  unless the  sentencing judge makes  a finding            that the defendant  lacked the intent  and the capability  to            deliver.                      Wihbey  argued  at  the  disposition  hearing  that            because only forty pounds  were delivered and because  he had            no  prior record  of  drug-dealing, he  therefore lacked  the            capability  and  intent  to  deliver 250  pounds.    But  the            sentencing  judge rejected  Wihbey's argument,  and expressly            found that  Wihbey was capable  of producing the  250 pounds;            the  judge did not state the basis for that finding, however.            In our  view, the co-conspirator testimony  noted above about            the 250-pound  deal is somewhat probative  of Wihbey's intent            and capability to produce that amount.  The fact that the DEA            did not find the  remaining marijuana in Wihbey's condominium            does  not prove that  Wihbey was unable or  did not intend to            deliver; obviously,  he may have  arranged to have  the drugs            kept elsewhere, to be  delivered to Arden Street as  the deal            progressed.  Consistent with the clear language of note 12 to            section 2D1.1 of the guidelines, the negotiated amount is the            applicable quantity  unless Wihbey can show  both "no intent"                                         -43-                                          43            and "no capacity"  to produce  that amount.   The  sentencing            judge found that Wihbey failed to make that showing, and that            finding was not clearly erroneous.                      2.  Whitman's Sentence:  Leadership Role                          ____________________________________                      Whitman  urges that the  sentencing judge committed            clear error in  finding that  he had a  leadership role  over            Camyre justifying  an enhancement under U.S.S.G.    3B1.1(c).            His  argument   is  twofold:  (1)  the   trial  evidence  was            insufficient  to  support  the  leadership  finding, and  (2)            Whitman's youth relative to Camyre and the other conspirators            indicates  that  Whitman was  at  most  a  "co-equal," not  a            leader.   The second  argument is easily  dismissed: although            age often correlates with one's organizational status, common            experience  provides enough counterexamples  to indicate that            there is little probative  value in that correlation.   As to            the  first  argument,  the  evidence in  this  case  strongly            suggests  that  Whitman  did  play a  leadership  role.   The            excerpts  of  Camyre's testimony  cited  in the  government's            brief show  that Camyre  responded to Whitman's  orders, that            Whitman set the  timing of the planned transaction,  and that            Camyre expected a  smaller share of the  profit than Whitman.            Whitman points to no  evidence that suggests a non-leadership            role,  other than  his  age  relative  to  that  of  his  co-            conspirators.  The  judge  who   presided  at  trial  and  at            sentencing  is  in the  best  position to  make  this factual                                         -44-                                          44            finding.  Our review of the  record finds significant support            for  the judge's  finding, and  there  is certainly  no clear            error.                                         IV.                                         IV.                                         ___                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  foregoing reasons,  the judgments  and the            sentences are affirmed.                          affirmed                          ________                                         -45-                                          45
