

September 14, 1995
                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                         

No. 94-1858

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

           GERALD RODRIGUEZ, a/k/a/ JOSE RODRIGUEZ,

                    Defendant, Appellant.

                                         

                         ERRATA SHEET

The opinion of this  Court issued on August 28, 1995 is  corrected
as follows:

On page 12,  second paragraph, line  5, substitute  "defaults" for
"defalcates."

                United States Court of Appeals
                    For the First Circuit

                                         

No. 94-1858

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

           GERALDO RODRIGUEZ, a/k/a JOSE RODRIGUEZ,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]                                                                
     [Hon. Francis J. Boyle, Senior U.S. District Judge]                                                                   

                                         

                            Before

             Selya, Cyr and Lynch, Circuit Judges.                                                             

                                         

Andrew Grosso for appellant.                         
Mervyn  Hamburg,  Senior  Counsel,  United  States  Department  of                           
Justice, with whom Sheldon Whitehouse, United States  Attorney, was on                                             
brief for the United States.

                                         

                       August 28, 1995
                                         

          LYNCH, Circuit Judge.   Geraldo Rodriguez seeks  to                      LYNCH, Circuit Judge.                                          

set aside his conviction for conspiracy to distribute heroin,

contending that he  was not  brought to trial  within the  70

days prescribed by  the Speedy Trial  Act ("STA"), 18  U.S.C.

   3161 et  seq., and that  two evidentiary rulings  at trial                            

were  in  error.     Rodriguez  also  appeals  his  sentence,

contending that  the district court engaged  in impermissible

"double counting" when it departed upward based on the purity

of the  heroin he was  convicted of conspiring  to distribute

while   simultaneously   enhancing  his   sentence   for  his

leadership role.  The conviction and sentence are affirmed.

                        I.  Background                                                  

          Geraldo  "Jose"  Rodriguez  and   his  co-defendant

Juvenal  Grajales arranged the sale of a total of 97.65 grams

of very pure heroin  (87% to 96% pure) to  a DEA confidential

informant named Miguel Teixeira on four occasions in February

and April,  1993.   Teixeira recorded his  conversations with

Rodriguez  about the  particulars of  these drug  deals at  a

number of  pre-arranged meetings.   At some of  the meetings,

Rodriguez was accompanied by Grajales or other associates; at

others,   Rodriguez  sent   associates  to  assist   with  or

consummate the transactions.

          Rodriguez and Grajales  were arrested and  indicted

for  distribution of  heroin,  distribution  of cocaine,  and

conspiracy  to  possess heroin  and  cocaine  with intent  to

                             -2-                                          2

distribute.   Following a period of  pretrial motion practice

and  discovery (set forth  in the Appendix  that follows this

opinion), trial  was scheduled  for September  23, 1993.   On

September 22, 1993, the district court accepted a guilty plea

from  Grajales.  On September  23, a jury  was empaneled (but

not sworn) in Rodriguez's case and trial  was set to begin on

September 30, 1993.  On that day, before the jury was  sworn,

Rodriguez  disputed   the   adequacy  of   the   government s

disclosures concerning  the  background of  its  key  witness

Teixeira, the DEA informant.   Rodriguez demanded that  he be

provided  with additional  information.  The  district court,

accommodating  Rodriguez s position,  dismissed the  jury and

adjourned  the  trial  pending resolution  of  the  discovery

issue.

          Some  two  weeks   later,  on  October  19,   1993,

Rodriguez's trial counsel filed a motion to withdraw from the

case.   The motion was  granted after hearing,  and the court

allowed Rodriguez time to  obtain new counsel.  In  November,

Rodriguez's  newly  retained  counsel Barry  Wilson  filed an

appearance and, later, a motion for admission pro hac vice in                                                                      

the  District  of Rhode  Island.    This proved  problematic.

Based on a contempt order that had been issued against Wilson

in an  unrelated matter before Judge  Pettine, the government

opposed the pro  hac vice motion.  A hearing  was not held on                                     

the motion until February 22, 1994.  The motion was allowed.

                             -3-                                          3

          That same  day Rodriguez filed a  motion to dismiss

the indictment on  grounds that  he had not  been brought  to

trial within 70 days as required by the STA.  That motion was

later denied in a bench ruling.

          Trial commenced on May  12, 1994.  At the  close of

the government's case, the district court granted Rodriguez's

motion for judgment of  acquittal with respect to Count  2 of

the  indictment,  which  charged  conspiracy   to  distribute

cocaine.  At the  conclusion of the five-day trial,  the jury

returned  a   guilty  verdict  on  Count   1  (conspiracy  to

distribute heroin)  but  acquitted  Rodriguez  on  all  other

counts (distribution of heroin; distribution of cocaine).

          At sentencing,  after concluding  that both  a two-

level leadership role enhancement and an additional two-level

drug-purity  upward departure  were  warranted, the  district

court imposed  a sentence  of 121  months imprisonment to  be

followed  by 5 years  supervised release,  and a  $50 special

assessment.

                 II.  Speedy Trial Act Claim                                                        

          Rodriguez's STA claim  raises questions of  whether

certain time consumed in connection with pretrial motions and

jury  empanelment   is  excludable  from  the  requisite  STA

calculations.       Factual   findings   underlying   a   STA

determination  are  reviewed  for clear  error,  while  legal

rulings are reviewed de novo.  See United States v. Storm, 36                                                                     

                             -4-                                          4

F.3d 1289, 1292  (5th Cir.  1994), cert. denied,  115 S.  Ct.                                                           

1798  (1995); United States  v. Henderson, 746  F.2d 619, 622                                                     

(9th Cir. 1984), aff'd, 476 U.S. 321 (1986).                                  

          The STA  requires that a defendant  be tried within

70  days of the filing  of the indictment  or the defendant's

first appearance before a  judicial officer, whichever occurs

later.  See  Henderson v.  United States, 476  U.S. 321,  322                                                    

(1986).  The remedy for  violation of the 70-day  requirement

is  dismissal  of  the  indictment  either  with  or  without

prejudice,  depending on  consideration of  several statutory

factors.    See  18  U.S.C.   3162(a)(2);  United  States  v.                                                                     

Ramirez, 973 F.2d 36, 39 (1st Cir. 1992).  Not every day that                   

passes between  indictment or appearance and  trial, however,

counts toward  the 70-day limit.   The Act  itself enumerates

various  circumstances that  can suspend  the running  of the

time.   See 18 U.S.C.    3161(h).  The  question presented is                       

whether  the  total  amount  of  non-excludable  time between

indictment  or  judicial appearance  and  the  filing of  the

pretrial  motion suggesting  a  STA  violation  exceeded  the

statutory limit of 70 days.

          The metaphor  of a running  clock is often  used in

STA cases.   The metaphorical clock  here started running  on

June  4, 1993, the day  after the indictment,  and stopped on

February  22, 1994, the day Rodriguez  filed his speedy trial

motion,  which  was not  renewed  before trial.    See United                                                                         

                             -5-                                          5

States  v.  Connor, 926  F.2d 81,  84  (1st Cir.  1991) ("[A]                              

motion  for dismissal [under  the STA] is  effective only for

periods  of time  which antedate  the filing  of the  motion.

Subsequent   periods  of   delay,   whether   includable   or

excludable, are inconsequential.").

          There  is no  dispute  that three  days devoted  to

miscellaneous    proceedings    concerning   Rodriguez    are

excludable.*   The  battle lines  are thus  drawn around  the

remaining  period of 260 days, and the question is whether at

least 190 of those days were excludable.  The answer is yes.

          Much   of  Rodriguez's   attack  focuses   on  time

associated with pretrial  motions.  The ground  rules are set

by  the  statute  and  Supreme  Court  case  law.     Section

3161(h)(1) of the Speedy Trial Act provides for the exclusion

of any

              (F)      delay  resulting   from  any
          pretrial motion,  from the filing  of the
          motion  through  the  conclusion  of  the
          hearing on, or  other prompt  disposition
          of, such motion; [and]
                    . . .
              (J)  delay reasonably attributable to
          any  period, not  to exceed  thirty days,
          during  which  any proceeding  concerning
          the    defendant   is    actually   under
          advisement by the court.

18 U.S.C.   3161(h)(1)(F), (J).

                                            

*The parties agree  that the  following days are  excludable under  18
U.S.C.   3161(h)(1): the day  of arraignment (June 14, 1993),  the day
on  which Rodriguez's  co-defendant Grajales  submitted a  guilty plea
(September  22,  1993);  and the  day  on  which  the first  jury  was
empaneled (September 23, 1993).

                             -6-                                          6

          There   are   significant   differences    in   the

excludability  of  delays  attributable  to  motions afforded

hearings and those decided without hearing.  Such differences

result from  the interplay  between subsections (F)  and (J).

In  Henderson v.  United  States, 476  U.S.  321 (1986),  the                                            

Supreme  Court held  that  under subsection  (F), the  entire                                                                         

period  beginning from the filing of a pretrial motion to the

conclusion of the hearing on that motion  is excludable time.

See id. at 328-31; see also United States v. McAfee, 808 F.2d                                                               

862, 864 (1st Cir. 1986).  Once the hearing on  the motion is

concluded, subsection  (J) limits  the  amount of  excludable

time while the motion is "under advisement" to 30  days.  See                                                                         

Henderson, 476 U.S.  at 328-329; United  States v. Ortiz,  23                                                                    

F.3d 21, 27  &amp; n.6 (1st Cir. 1994); United  States v. Wilson,                                                                        

835 F.2d 1440, 1442 (D.C. Cir. 1987).

          When  there is no hearing, a motion is deemed to be

taken  under  advisement when  "the  court  receives all  the

papers it reasonably expects . . . ."  Henderson, 476 U.S. at                                                            

329; see also United States v. Johnson, 29 F.3d 940, 944 (5th                                                  

Cir. 1994).    Thus, for  a motion  that does  not receive  a

hearing, subsections (F) and (J) in conjunction allow for the

exclusion of all of the time from the filing of the motion to

the  time that  the  court receives  all reasonably  expected

papers, plus no more than an additional 30 days of advisement

time.  See Johnson, 29 F.3d at 944; see also Wilson, 835 F.2d                                                               

                             -7-                                          7

at  1442  ("[Sections 3161(h)(1)(F)  and (J)]  taken together

thus exclude the time between filing of a motion and the date

it  is taken  under advisement  by the  court, plus  the time

during which the court holds the motion under advisement  (up

to 30 days).").

          The chronology against which the STA clock runs and

stops according to  these rules in this case  is set forth in

the Appendix.   Pursuant  to Henderson and    3161(h)(1)(F) &amp;                                                  

(J), the  entire 75-day  period from  the  December 10,  1993

filing  of the pro hac  vice motion of  his new counsel until                                        

the   hearing  on   that  motion   (February  22,   1994)  is

excludable.**  The  date on  which the motion  was filed  and

the  date on  which it  was heard  are also  excludable days.

United  States v. Papaleo, 853  F.2d 16, 21  (1st Cir. 1988).                                     

                                            

**There is some confusion in  the briefs and in the record  as to when
Barry Wilson's pro  hac vice motion actually was  filed.  For purposes                                    
of this appeal,  we assume the motion was filed  on December 10, 1993,
the  date indicated  on the  district court  docket sheet.    It bears
comment, however, that more than 45  days passed between the time that
the district court granted the motion of Rodriguez's former counsel to
withdraw  from the case  and the filing  of the pro  hac vice motion                                                                       
even  though the court had  expressly ordered Rodriguez  to obtain new
counsel  within 10  days  of the  withdrawal.   Although  new  counsel
purported to file an "appearance" on November 4, 1993, that appearance
was plainly in  violation of the  district court's  local rules.   See                                                                              
D.R.I. Loc. R. 5(c)  (permitting appearance of non-member of  bar only
on  admission pro  hac  vice).   Conceivably,  either the  November  4                                    
"appearance" by Wilson or  the December 1 appearance by  local counsel
on behalf of Wilson could be treated functionally as the date on which
the pro hac vice motion  was filed.  In any case, there is substantial                        
reason  to doubt whether the STA clock  was running during the 35 days
that  Rodriguez,  in  violation  of  the  court's  order,  delayed  in
retaining appropriate counsel of record.  For purposes of this appeal,
however, we put that issue to one side.

                             -8-                                          8

Similarly, the bail motion  filed on October 13,  1993 (which

did not receive a hearing nor, apparently, an express ruling)

resulted  in at  least an  additional 30  days of  excludable

time.  See Ortiz, 23 F.3d at 27 n.6 (pretrial motion to which                            

no opposition was  filed, which did not  receive hearing, and

was never ruled upon  created at least 30 days  of excludable

time);  see also Johnson, 29  F.3d at 945  (same).  Excluding                                    

the  delays attributable  to  these motions  reduces the  STA

count to 155 days.

          The events  that unfolded in  late September,  1993

further reduce the count.  On September 23, 1993, Rodriguez's

case  was called to trial, and  a jury was empaneled, but not

sworn.   One week later, as  the trial was about  to begin in

earnest, a  last-minute discovery  wrangle caused  the still-

unsworn jury to be  dismissed and the trial to  be postponed.

The  issue is how to  treat the one-week  interim between the

jury's empanelment and its unexpected dismissal.

          It  is settled that trial generally "commences" for

Speedy Trial Act purposes  on the day the jury  is empaneled,

even  if  not sworn.   See  Government  of Virgin  Islands v.                                                                      

Duberry,  923  F.2d  317, 320  (3d  Cir.  1991)  (STA is  not                   

violated so  long as jury selection occurs  within the 70-day

period, even  if swearing  occurs outside the  period), cert.                                                                         

denied, 115 S. Ct. 370 (1994); United States v. Fox, 788 F.2d                                                               

905,  908-09 (2d Cir. 1986)  (same); United States v. Scaife,                                                                        

                             -9-                                          9

749  F.2d 338, 343 (5th  Cir. 1984) (same);  United States v.                                                                      

Manfredi,  722 F.2d 519,  524 (9th Cir.  1983) (same); United                                                                         

States v. Gonzalez,  671 F.2d 441 (11th  Cir.), cert. denied,                                                                        

456 U.S. 994 (1982);  cf.  United States v. Rojo-Alvarez, 944                                                                    

F.2d 959, 965  (1st Cir. 1991) (dictum)  (suggesting that the

STA  clock   was  "definitively  stopp[ed]"  when   jury  was

empaneled); United States  v. Zayas, 876 F.2d 1057, 1058 (1st                                               

Cir.  1989) (noting the  parties' agreement  that STA  is not

violated if jury empanelment  occurs within the 70-day period

even if actual trial commences outside the period, so long as                   

the  empanelment is not "pretextual").   Here, as  far as the

record reflects,  the parties  and the  court expected  as of

September  23 that, following a brief recess of one week, the

empaneled jury would be sworn  and that opening arguments and

testimony would get underway on September 30.   Arguably, the

September 23, 1993  jury empanelment ended the running of STA

time.  Cf.  Duberry,  923 F.2d at 320 ("The Speedy  Trial Act                               

does not  require that  once a  trial  commences it  continue

without  interruption  . . . .").   Before  September  30 the

parties  and the court had  every reason to  believe that the

STA  clock  had ceased  ticking on  September  23.   In these

circumstances, we conclude that, at a minimum, the STA  clock

did  not run  during  the 6-day  interim  between the  jury's

empanelment and its dismissal.   Subtracting this time brings

the STA tally to 149 days.

                             -10-                                          10

          We  turn next  to the  proceedings of  September 30

that unexpectedly  halted the  trial.  That  day, before  the

jury was  sworn, Rodriguez's counsel  raised discovery issues

with  the  trial  judge,  contending  that  the  government's

disclosure   of  information   concerning  its   key  witness

(Teixeira) had been sorely  inadequate.  Rodriguez asked that

the  court   order  the  government  to   produce  additional

information.  The district  court, apparently seeing merit in

Rodriguez's  claim, decided  to  dismiss the  jury.   Defense

counsel then asked  the district  court, "Judge,  will it  be

necessary  to file a more detailed request . . .?"  The court

replied,  "Well, you  take the  time you  need and  study the

problem, then  let me know what you need, all right?"  Twelve

days later,  on October 12,  1993, Rodriguez filed  a "Motion

for Exculpatory Evidence" concerning Teixeira.

          Rodriguez's request for  additional information  at

the  September 30, 1993  proceedings was  an oral  motion for

supplemental  discovery,  which  triggered  the  exclusionary

provisions of   3161(h)(1)(F).   See United States  v. Noone,                                                                        

913 F.2d  20, 27 (1st Cir. 1990) (an oral motion no less than

a written one creates excludable time under   3161(h)(1)(F)),

cert. denied, 500  U.S. 906 (1991);  accord United States  v.                                                                     

Pasquale, 25 F.3d 948, 950-51 (10th Cir. 1994); United States                                                                         

v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993); United States v.                                                                      

Louis,  814 F.2d 852, 857 (2d Cir. 1987).  Alternatively, the                 

                             -11-                                          11

period between Rodriguez's September  30 oral request and the

filing of his October 12 written motion can be viewed as time

set aside by  the district court as  motion preparation time,

which  also  would be  excludable  under    3161(h)(1).   See                                                                         

United  States v. Jodoin, 672  F.2d 232, 238  (1st Cir. 1982)                                    

(allowing STA  exclusion for period between  defendant's oral

request for time to file motion and actual filing of motion);

cf. United States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir.                                       

1990)  (recognizing  excludability   of  time  designated  by

district court as motion preparation time).   Either way, the

entire 13-day period from  September 30, 1993 through October

12, 1993 is excludable time.  In light of this conclusion, we

need not  address whether the adjournment  resulting from the

September 30 proceedings  would be excludable as  an "ends of

justice"  continuance under the STA.   Had the district court

so intended, however, it would have been preferable for it to

have  made an express finding  on the record,  as directed by

the statute,  explaining why the  "ends of justice  served by

the  granting  of  such  continuance  outweigh[ed]  the  best

interests of the public and the defendant in a speedy trial."

18 U.S.C.   3161(h)(8)(A); see United States v. Bruckman, 874                                                                    

F.2d 57,  62 (1st Cir. 1989) (encouraging  district courts to

make  the  requisite  findings,   but  noting  that  in  some

circumstances, failure  to state the findings  for the record

does not preclude excludability).   In any event, subtracting

                             -12-                                          12

the time between the September 30  adjournment and the filing

of  the October 12 discovery  motion brings the  STA tally to

136 days.***

          There remains  at least  one  additional source  of

excludable  time    the discovery  motion Rodriguez  filed on

June  16, 1993.    Determining how  much  excludable time  to

attribute to this  motion presents a  novel question in  this

Circuit: how to treat a delay when the government defaults on

its obligation to respond to a defendant's motion by a court-

ordered deadline.  Rodriguez's  motion was filed on  June 16,

1993 and did  not receive  a hearing.   The magistrate  judge

overseeing   the  pretrial   proceedings   had  ordered   the

government to file  any opposition  by July 23,  1993.   Yet,

inexplicably, the government's opposition was not filed until

September  2, 1993.  The government has not disputed that its

opposition was untimely;  nor has it  pointed to anything  in

the record  that  would justify  the  delay.   Still,  citing

Henderson, the  government contends that all of the time from                                                        

the  filing of the June 16, 1993  motion to the filing of its

untimely response on September 2, 1993, plus an additional 30                                                        

days of  advisement time,  should be deemed  excludable under

  3161(h)(1)(F) and (J).  Rodriguez disagrees, asserting that

                                            

***Because the period of  excludable time attributable to the
October 12,  1993 written  motion wholly overlaps  the period
independently excluded by virtue of the October 13, 1993 bail
motion,  the October 12 motion  does not result  in any extra
excludable time, except for the single day of October 12.

                             -13-                                          13

the excludable time should be limited to the period from June

16  to July 23 (the date on which the government's opposition

was due), plus an additional 30 days of advisement time after                   

that due date.

          There   are   considerable   reasons    to   credit

Rodriguez's  position.   The  government's  broad reading  of

Henderson is hardly sensitive to the purposes of the STA.  To                     

be sure, Henderson creates an expansive rule of exclusion for                              

delays attributable  to the hearing of pretrial motions.  But

we  doubt that Henderson or the Speedy Trial Act itself would                                    

permit  treating  as   excludable  time  an   extended  delay

attributable solely  to the government's unexcused failure to

comply with  a court-ordered briefing schedule.   The dangers

of  potential  abuse lurking  behind  such  a broad  rule  of

exclusion are plain.

          A   more  sensible  rule   might  provide  for  the

termination of excludable time under   3161(h)(1)(F) upon the

due date of the  opposition to a defendant's pretrial  motion                    

that does  not receive  a hearing, absent  circumstances that

would  reasonably justify a late filing.  The Seventh Circuit

adheres to just such a "due date" rule.  See United States v.                                                                      

Thomas,  788 F.2d  1250, 1259 (7th  Cir.), cert.  denied, 479                                                                    

U.S. 853  (1986); see  also United  States v.  Baskin-Bey, 45                                                                     

                             -14-                                          14

F.3d 200, 203 (7th Cir. 1995), cert. denied, 115  S. Ct. 1809                                                       

(1995).****     Under  that   court's  approach,  a  pretrial

motion that does not receive a hearing is deemed to be "under

advisement"  on the  date the  government's response  is due,

even  if the  response  has not  actually  been filed.    See                                                                         

Thomas, 788 F.2d at  1259.  Thus, as  of the due date  in the                  

Seventh  Circuit,   3161(h)(1)(F) ceases to create excludable

time  for a motion that  receives no hearing,  and the 30-day

period of excludable  "advisement" time under   3161(h)(1)(J)

begins; after that 30-day period, the STA clock begins to run

again.  See id.                           

          The  Thomas  rule  is commended  by  fairly obvious                                 

considerations  of policy.  See Thomas, 788 F.2d at 1259 ("If                                                  

the entire  period [of  delay attributable to  a government's

late  filing]  were  excluded,  a   prosecutor  could  obtain

indefinite  exclusions  of  time  by  the  expedient  of  not

responding  to  . . .  motions.    That  would  undercut  the

structure of the Speedy  Trial Act.").  For several  reasons,

however, we leave for another day whether to adopt the Thomas                                                                         

"due date"  rule  as the  law  of this  Circuit.   First  and

foremost, we  need not  decide definitively whether  to adopt

                                            

****The Fifth  Circuit appears to differ.   See United States                                                                         
v.  Martinez-Mercado, 888  F.2d  1484, 1493  (5th Cir.  1989)                                
(rejecting appellant's  contention that Speedy Trial Act does
not exclude  time between  due date of  government's response
under local  rules  and  actual  filing date).    The  Second
Circuit has left  the question  open.  See  United States  v.                                                                     
Adeniji, 31 F.3d 58, 66 (2d Cir. 1994).                   

                             -15-                                          15

the  "due date" rule in this case, because even applying that

rule, the  number of non-excludable days  within the relevant

STA period is less than 70: between the filing of the June 16

motion and  the due date of the  opposition (July 23) fell 38

days  excludable under    3161(h)(1)(F).   Adding 30  days of

excludable    "under    advisement"    time    pursuant    to

  3161(h)(1)(J),  the total  excludable time  attributable to

the June  16 motion  under the  "due date"  rule would be  68

days.  Subtracting this  time from the STA tally  reduces the

count to 68 days, under the 70-day limit.  Second, the record

before us  is unclear as  to whether  there were in  fact any

reasons for the government's  late filing.  Third, it  is not

evident that  Rodriguez ever brought the  untimeliness of the

government's  opposition to  the district  court's attention.

Cf.  United States v. Welborn, 849 F.2d 980, 986-87 (5th Cir.                                         

1988) (expressing  concern  that the  Seventh Circuit's  "due

date" rule might "permit a defendant to remain silent after a

deadline imposed  on the prosecution had elapsed and permit a

Speedy Trial Act  violation to accrue  without notice to  the

prosecution or the court").

          Finally, we  reject Rodriguez's assertion  that his

June 16 motion did not generate any excludable time from June

16  to July 13.   His argument  purports to be  built upon 18

U.S.C.    3161(c)(2), which  some  courts have  understood to

prohibit  commencement of a trial sooner than 30 days after a

                             -16-                                          16

defendant's  arraignment  or indictment.   See,  e.g., United                                                                         

States v. Daly, 716 F.2d 1499, 1504-05 (9th Cir. 1983), cert.                                                                         

dismissed,  465  U.S. 1075  (1984).    From this  reading  of                     

  3161(c)(2), Rodriguez argues that  his trial could not have

commenced  before July 14, 1993  and that his  June 16 motion

therefore could  not have produced  any actual "delay"    and

hence no excludable time   before that date.  Whether or  not

Rodriguez's   suggested   construction  of     3161(c)(2)  is

correct, his argument is  unavailing.  The argument rests  on

the premise that a  motion which causes no actual  delay of a

trial date  does not  trigger   3161(h)(1).   However, it  is

clear in this  Circuit as  in others that  the exclusions  of

  3161(h)(1)(F) and  (J) are  "automatic," and do  not depend

upon any showing of actual delay.  See United States v. Rush,                                                                        

738 F.2d 497,  502 (1st  Cir. 1984), cert.  denied, 470  U.s.                                                              

1004 (1985); see also United States v. Montoya, 827 F.2d 143,                                                          

151  (7th Cir. 1987);  United States  v. Velasquez,  802 F.2d                                                              

104,  105 (4th Cir. 1986);  United States v.  Novak, 715 F.2d                                                               

810, 813 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984).                                                 

          To  summarize, the  following periods  of time  are

excludable under   3161(h):  the single day of  June 14, 1993

(arraignment);  at  least 68  days  following  the filing  of

Rodriguez's discovery motion on June 16, 1993; the single day

of September  22, 1993 (co-defendant's  submission of  plea);

the 7-day period from September 23 through September 29, 1993

                             -17-                                          17

(jury empanelment and trial "commencement"); at least 30 days

following the September 30,  1993 oral request for additional

discovery;  the 13 of the  30 days following  the October 13,

1993 bail motion that  do not overlap with the  time excluded

for  the September  30  oral motion;  and  the 75-day  period

between the December  10, 1993  pro hac vice  motion and  the                                                        

hearing  on that motion.   Excluding these 195  days from our

starting count of 263 leaves only 68 nonexcludable days.

          We  need go no further.  The district court did not

err in  denying Rodriguez's motion to  dismiss the indictment

for violation of the STA.

                   III.  Evidentiary Issues                                                       

A.  Admissibility of Audiotape                                          

          Teixeira,  the  government's testifying  informant,

taped his meetings with Rodriguez using a concealed recording

device.  A total  of eight tapes were admitted  into evidence

at  trial.   Rodriguez  contends  that  the district  court's

admission  of  one  of  these  tapes  (Gov.  Exhibit  7)  was                              

reversible  error, for  three  reasons: (1)  the tape,  which

purported to be a recording of a meeting between Teixeira and

Rodriguez  on   February   19,   1993,   was   not   properly

authenticated; (2)  the tape  contains hearsay statements  by

Teixeira;  and  (3) the  tape contains  some words  spoken in

Spanish, creating a danger of jury confusion.

                             -18-                                          18

          There was  no abuse of discretion  in admitting the

tape over  Rodriguez's  authenticity objection.   See  United                                                                         

States v. Font-Ramirez,  944 F.2d 42, 46-47  (1st Cir. 1991),                                  

cert. denied, 502 U.S. 1065 (1992).  First,          Teixeira                        

identified it as the  tape he recorded during a  meeting with

Rodriguez on February 19, 1993, and Teixeira stated  that the

tape fairly and accurately  reflected that meeting.  Teixeira

further  testified  that  he  had listened  to  the  tape and

verified  that his  own voice  was on  it.   Other government

witnesses confirmed  that Teixeira met with  defendant on the

relevant date, that Teixeira was wired to record the relevant

meeting, that Teixeira gave the  tape to the DEA surveillance

team following the meeting, and that the tape passed  through

a  clean chain of custody preceding trial.  Cf. United States                                                                         

v. Rengifo, 789 F.2d  975, 978 (1st Cir. 1986)  (holding that                      

tape  can be  properly  authenticated by  someone other  than

participant in the recorded conversation).  Rodriguez offered

no  evidence that the tape was somehow inaccurate or had been

altered.  See United  States v. Carbone, 798 F.2d 21, 24 (1st                                                   

Cir. 1986).

          Rodriguez's  other objections  to admission  of the

tape also fail.  His hearsay objection falters because he did

not make  it at  trial, arguing  only a  foundation objection

there.  Admission of the tape was not plain error.  His final

claim,  that the presence of  some Spanish words  on the tape

                             -19-                                          19

created a danger that some of the jurors might  have tried to

act as  interpreters for  other jurors, is  sheer speculation

and provides no basis for reversal.

          Any   alleged  error  in  admitting  the  tape  was

harmless in any event.   The jury acquitted defendant  of all                                                       

counts except for the count charging conspiracy to distribute

heroin.   There  was  a  wealth  of  evidence  to  support  a

conviction  on that  count that  had nothing  to do  with the

disputed  tape,  including  Teixeira's  live  testimony,  the

testimony of  other surveilling officers,  and several  other                                                                         

tape  recorded conversations  between Teixeira  and Rodriguez

whose admissibility are not challenged here.

B.  Limitation of Impeachment Evidence                                                  

          During  cross-examination  of  Teixeira  at  trial,

Rodriguez's  counsel exposed the fact that in January, 1993  

shortly  before  the  start  of the  operation  that  led  to

defendant's arrest   Teixeira  had been convicted of perjury.

As Rodriguez s counsel  explored this skeleton in  Teixeira s

closet,  there  arose  some  question  about  precisely  when

Teixeira had served the 90-day home confinement sentence that

had attached to his conviction.   Teixeira testified that  he

had already served his sentence as of the date of Rodriguez's

trial  (May  1994),  but  could not  remember  exactly  when.

Rodriguez,  in presenting  his  own  case, called  Teixeira's

probation officer to the stand.  His testimony suggested that

                             -20-                                          20

Teixeira had not in fact served his home confinement sentence

by May 1994.   Seeking further to impeach  Teixeira s already

damaged credibility,  Rodriguez then moved  for production of

certain   correspondence  in  the  possession  of  Teixeira's

probation officer that might  indicate exactly when  Teixeira

had served his 90-day sentence.  The court denied Rodriguez's

request for the probation documents.

          The district court's decision not  to let Rodriguez

pursue the  collateral question  of when Teixeira  had served

his perjury sentence is unassailable.   The court had already

permitted  Rodriguez ample  opportunity to  impeach Teixeira,

and it  is unlikely that  the probation documents  would have

added  anything to  the jury s  ability to  assess Teixeira s

truthfulness.   The  district court  has broad  discretion to

limit the extent to which a defendant is permitted to impeach

a witness, see  United States  v. Fortes, 619  F.2d 108,  118                                                    

(1st  Cir. 1980), and there  was no abuse  of that discretion

here.  See United  States v. Tejada,  886 F.2d 483, 488  (1st                                               

Cir. 1989).

                    IV.  Sentencing Issues                                                      

          The  district court added a two-level adjustment to

Rodriguez's  base  offense level  in view  of  his role  as a

manager,   supervisor,  or   leader  of   criminal  activity.

U.S.S.G.   3B1.1(c).   This  enhancement resulted in  a total

offense level of 28, which  yielded (given a criminal history

                             -21-                                          21

category  of  I),  a  guidelines sentencing  range  of  78-97

months.  The court  then departed upward from that  range (by

the equivalent  of two  offense levels) pursuant  to U.S.S.G.

  2D1.1, comment. (n.9) and    5K2.0, in consideration of the

unusually high  purity of the  drugs that defendant  had been

dealing.    Consequently, the  court  imposed  a sentence  of

imprisonment of 121 months.

          Rodriguez's  claim  that  there   was  insufficient

evidence  to support  a finding  that he played  a leadership

role for  purposes of  U.S.S.G.   3B1.1(c) is  without merit.

The district court s finding, made with the benefit of all of

its observations at trial, is entitled to, and is given here,

considerable  deference.   See United  States v.  Andujar, 49                                                                     

F.3d 16, 25 (1st Cir.  1994).  We see no basis  for declaring

that finding to be clearly erroneous.

          Rodriguez s  next complaint,  that  he  received  a

substantially   heavier   sentence   than  his   co-defendant

Grajales, is  also without  merit.  Absent  misapplication of

the  Guidelines,  the mere  fact of  the  disparity is  of no

consequence.   See  United States  v.  Wogan, 938  F.2d 1446,                                                        

1448-49  (1st  Cir.),  cert.  denied, 502  U.S.  969  (1991).                                                

Besides,  the  difference is  easily  explained.   Rodriguez,

unlike  Grajales  (who  pleaded  guilty  before   trial)  was

sentenced against  the backdrop of  a full trial  record that

exposed in sharp  focus the complete  extent of his  criminal

                             -22-                                          22

behavior.   Cf. United States v.  Rodriguez-Cardona, 924 F.2d                                                               

1148, 1160-61 (1st Cir.), cert. denied, 502 U.S. 809 (1991).                                                  

          Rodriguez s  final complaint  is that  his sentence

was twice enhanced  for the  same or similar  aspects of  his

criminal conduct through the  simultaneous imposition of  the

leadership-role  enhancement  and   the  drug-purity   upward

departure.  Rodriguez  focuses this double-counting  argument

on  application note 9  to U.S.S.G.    2D1.1,  which explains

that a  drug's high purity  "is probative of  the defendant's

role  or position  in  the chain  of distribution."  U.S.S.G.

  2D1.1,  comment.  (n. 9).   From  this language,  Rodriguez

argues  that an  upward  departure based  on  drug purity  is

duplicative of a leadership role enhancement.

          In this case however,  the district court's finding

of  leadership role  did  not depend  upon an  inference from

heroin  purity.    Rather,  the  court  found  directly  that

Rodriguez "used his mules and lackeys to  make deliveries for

him  and [that]  he  exercised leadership  in  some of  these

deliveries by using underlings."   Thus, the  leadership-role

enhancement was notdriven by any consideration ofdrug purity.

          Furthermore, application  note 9 does not  say that

drug purity  and a  defendant's leadership role  are mutually

exclusive  sentencing considerations.   The  application note

specifically   states   that  "[t]rafficking   in  controlled

substances  . . . of  unusually  high purity  may warrant  an

                             -23-                                          23

upward departure," U.S.S.G.   2D1.1, comment. (n.9) (emphasis                            

added),  not that  high purity  can provide  a basis  for the

leadership   role  adjustment   set   forth  in     3B1.1(c).

Moreover, the notion  of "leadership role"  in   3B1.1(c)  is

neither conceptually nor factually  equivalent to the  notion

of  "role or position in the  chain of distribution" referred

to  in   2D1.1 application  note 9.   This court has  in fact

previously  affirmed   a   similar  combination   of   upward

adjustments.   See United States v.  Diaz-Villafane, 874 F.2d                                                               

43 (1st Cir. 1989), cert. denied, 493 U.S. 862 (1989).  There                                            

was no error in the calculation of Rodriguez s sentence.

          Affirmed.                              

                             -24-                                          24

                           APPENDIX

                     Pretrial Chronology                                                    

Jun.  3, 1993  Indictment.

Jun. 14, 1993  Arraignment.  Magistrate judge issues
               scheduling order directing, inter alia, that                                                                 
               defendant file any pretrial motions by July
               13, 1993, and that government file any
               responses by July 23, 1993.

Jun. 16, 1993  Rodriguez files motion for discovery and
               disclosure.  Due date of government's
               opposition is July 23, 1993; but opposition is
               not filed until Sept. 2, 1993.

Sep.  2, 1993  Government responds to motion filed by
               Rodriguez on June 16, 1993.

Sep. 22, 1993  Co-defendant Grajales submits guilty plea;
               district court accepts plea.

Sep. 23, 1993  Initial jury in Rodriguez's case is selected
               but not sworn.

Sep. 30, 1993  Before jury is sworn, Rodriguez requests
               disclosure by government of additional
               information concerning its key witness.  Jury
               is dismissed and Rodriguez's trial is
               postponed pending resolution of discovery
               issues.

Oct. 12, 1993  Rodriguez files "Motion for Exculpatory
               Evidence."

Oct. 13, 1993  Rodriguez files motion to reconsider bail.

Oct. 19, 1993  Rodriguez's counsel files motion to withdraw.

Oct. 25, 1993  Hearing held on motion to withdraw; the court
               allows the motion.  Court gives Rodriguez 10
               days to obtain new counsel.

Nov.  4, 1993  Rodriguez's new counsel Barry Wilson, not a
               member of the district court bar, purports to
               file an "appearance."

                             -25-                                          25

                     APPENDIX, continued

Dec.  1, 1993  Local counsel files appearance on behalf of
               Barry Wilson.

Dec. 10, 1993  Barry Wilson files motion for admission pro                                                                      
               hac vice.  The government opposes the motion.                                   

Feb. 22, 1994  Hearing held on pro hac vice motion.  The                                                       
               court allows the motion.

Feb. 22, 1994  Rodriguez files motion to dismiss indictment
               for violation of Speedy Trial Act.

Apr. 28, 1994  Hearing held on motion to dismiss; the court
               denies the motion.

May  12, 1994  Rodriguez's trial commences.

                             -26-                                          26
