
USCA1 Opinion

	




          August 17, 1993   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 91-1896                                    UNITED STATES,                                      Appellee,                                          v.                                 KENNETH INNAMORATI,                                Defendant, Appellant.                                 ___________________          No. 91-1897                                    UNITED STATES,                                      Appellee,                                          v.                                  WILLIAM THOMPSON,                                Defendant, Appellant.                                 ___________________          No. 91-1898                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES GRADY, a/k/a THE REBEL,                                Defendant, Appellant.                                 ____________________          No. 91-1899                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, SR.,                                Defendant, Appellant.                                 ____________________          No. 91-1900                                    UNITED STATES,                                      Appellee,                                          v.                                   WILLIAM LETTERS,                                Defendant, Appellant.                                 ____________________          No. 91-1901                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, JR.,                                Defendant, Appellant.                                 ____________________          No. 91-1902                                    UNITED STATES,                                      Appellee,                                          v.                            PHILLIP BARGALLA, a/k/a FLIP,                                Defendant, Appellant.                                 ___________________          No. 91-1903                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES LITTERIO, a/k/a MICKEY,                                Defendant, Appellant.                                 ____________________          No. 91-1924                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN BOISONEAU,                                Defendant, Appellant.                                 ____________________          No. 92-1253                                    UNITED STATES,                                      Appellee,                                          v.                                   JOSEPH GILBERTI,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of the Court issued on June 17, 1993, is amended          as follows:               On page 30, lines 1-2 of  the fourth paragraph of the  block          quote, replace "Paula Bufton" with "Paula [sic] Bufton".          July 8, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1896                                    UNITED STATES,                                      Appellee,                                          v.                                 KENNETH INNAMORATI,                                Defendant, Appellant.                                 ____________________        No. 91-1897                                    UNITED STATES,                                      Appellee,                                          v.                                  WILLIAM THOMPSON,                                Defendant, Appellant.                                 ____________________        No. 91-1898                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES GRADY, a/k/a THE REBEL,                                Defendant, Appellant.                                 ____________________        No. 91-1899                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, SR.,                                Defendant, Appellant.                                 ___________________                                 ____________________        No. 91-1900                                    UNITED STATES,                                      Appellee,                                          v.                                   WILLIAM LETTERS,                                Defendant, Appellant.                                 ____________________        No. 91-1901                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, JR.,                                Defendant, Appellant.                                 ____________________        No. 91-1902                                    UNITED STATES,                                      Appellee,                                          v.                            PHILLIP BARGALLA, a/k/a FLIP,                                Defendant, Appellant.                                 ____________________        No. 91-1903                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES LITTERIO, a/k/a MICKEY,                                Defendant, Appellant.                                 ____________________        No. 91-1924                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN BOISONEAU,                                Defendant, Appellant.                                 ____________________                                 ____________________        No. 92-1253                                    UNITED STATES,                                      Appellee,                                          v.                                   JOSEPH GILBERTI,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of  the Court issued on June  17, 1993, is amended  as        follows:            On  page 44,  lines 14-16:    replace  the sentence  "Although the        notation was produced prior to the cross-examination of Scott, counsel        for  Grady declined  to ask  Scott any  questions." with  the sentence        "Grady sought to  call O'Brien to the stand to  question him about the                               _______        notation,  but  he never  sought to  recall  Scott for  further cross-        examination once the notes were produced."        June 23, 1993                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1896                                    UNITED STATES,                                      Appellee,                                          v.                                 KENNETH INNAMORATI,                                Defendant, Appellant.                                 ____________________        No. 91-1897                                    UNITED STATES,                                      Appellee,                                          v.                                  WILLIAM THOMPSON,                                Defendant, Appellant.                                 ____________________        No. 91-1898                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES GRADY, a/k/a THE REBEL,                                Defendant, Appellant.                                 ____________________        No. 91-1899                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, SR.,                                Defendant, Appellant.                                 ___________________                                 ____________________        No. 91-1900                                    UNITED STATES,                                      Appellee,                                          v.                                   WILLIAM LETTERS,                                Defendant, Appellant.                                 ____________________        No. 91-1901                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, JR.,                                Defendant, Appellant.                                 ____________________        No. 91-1902                                    UNITED STATES,                                      Appellee,                                          v.                            PHILLIP BARGALLA, a/k/a FLIP,                                Defendant, Appellant.                                 ____________________        No. 91-1903                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES LITTERIO, a/k/a MICKEY,                                Defendant, Appellant.                                 ____________________        No. 91-1924                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN BOISONEAU,                                Defendant, Appellant.                                 ____________________                                 ____________________        No. 92-1253                                    UNITED STATES,                                      Appellee,                                          v.                                   JOSEPH GILBERTI,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this Court issued on June  17, 1993, is amended  as        follows:            On  third page  under  list  of  attorneys "Levchuck  should  read                                                        ________        Levchuk."        _________                                     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1896                                    UNITED STATES,                                      Appellee,                                          v.                                 KENNETH INNAMORATI,                                Defendant, Appellant.                                 ____________________        No. 91-1897                                    UNITED STATES,                                      Appellee,                                          v.                                  WILLIAM THOMPSON,                                Defendant, Appellant.                                 ____________________        No. 91-1898                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES GRADY, a/k/a THE REBEL,                                Defendant, Appellant.                                 ____________________        No. 91-1899                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, SR.,                                Defendant, Appellant.                                 ___________________                                 ____________________        No. 91-1900                                    UNITED STATES,                                      Appellee,                                          v.                                   WILLIAM LETTERS,                                Defendant, Appellant.                                 ____________________        No. 91-1901                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT DEMARCO, JR.,                                Defendant, Appellant.                                 ____________________        No. 91-1902                                    UNITED STATES,                                      Appellee,                                          v.                            PHILLIP BARGALLA, a/k/a FLIP,                                Defendant, Appellant.                                 ____________________        No. 91-1903                                    UNITED STATES,                                      Appellee,                                          v.                            JAMES LITTERIO, a/k/a MICKEY,                                Defendant, Appellant.                                 ____________________        No. 91-1924                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN BOISONEAU,                                Defendant, Appellant.                                 ____________________                                 ____________________        No. 92-1253                                    UNITED STATES,                                      Appellee,                                          v.                                   JOSEPH GILBERTI,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Frank H. Freedman, Senior District Judge]                                            _____________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            J.  Michael McGuinness,  by  Appointment of  the Court,  with whom            ______________________        McGuinness & Parlagreco was on brief for appellant Kenneth Innamorati.        _______________________            Diane  Powers, by Appointment of the Court,  for appellant William            _____________        Thompson.            Robert L. Rossi, by Appointment of  the Court, for appellant James            _______________        Grady.            Robert J. Danie, by Appointment of  the Court, with whom Bonavita,            _______________                                          _________        Gordon, and Danie, P.C. was on brief for appellant Robert DeMarco, Sr.        _______________________            Michael  C.  Bourbeau, by  Appointment  of  the Court,  with  whom            _____________________        Bourbeau and Bourbeau was on brief for appellant William Letters.        _____________________            Warren R. Thompson,  by Appointment  of the  Court, for  appellant            __________________        Robert DeMarco, Jr.            Henry  C. Porter,  by  Appointment  of the  Court,  for  appellant            ________________        Phillip Bargalla.            Arthur R. Silen, by Appointment of  the Court, for appellant James            _______________        Litterio.            Frances  L. Robinson,  by  Appointment  of the  Court,  with  whom            ____________________        Davis, Robinson & White was on brief for appellant John Boisoneau.        _______________________            Dwight M. Hutchison,  by Appointment  of the Court, for  appellant            ___________________        Joseph Gilberti.            Andrew Levchuk,  Assistant United  States Attorney,  with whom  A.            ______________                                                  __        John Pappalardo, United States  Attorney, and Kevin O'Regan, Assistant        _______________                               _____________        United States Attorney, were on brief for appellee.                                  ____________________                                    June 17, 1993                                 ____________________                 BOUDIN,  Circuit Judge.   In  this case  ten individuals                          _____________            challenge, on  a wide  variety of grounds,  their convictions            and sentences following a jury  trial in the district court.1            All  ten  defendants  were  found  guilty  of  conspiring  to            distribute and  to possess with intent  to distribute cocaine            and  marijuana,  in  violation  of  21  U.S.C.       846  and            841(a)(1).  All defendants  except Thompson were convicted of            one  or  more  additional   counts  relating  to  the  ring's            activities.    For  the   reasons  that  follow,  we  reverse            defendant Grady's  conviction on one  count for  insufficient            evidence  and remand for resentencing, and we sustain each of            the remaining convictions and sentences.                                    I.  BACKGROUND                 The voluminous  testimony  and other  evidence  properly            introduced at  trial, viewed in  the light most  favorable to            the verdicts, see United  States v. Rivera-Santiago, 872 F.2d                          ___ ______________    _______________            1073, 1078-79 (1st Cir.), cert. denied, 492  U.S. 910 (1989),                                      ____________            established the  following facts.  In  1984, Brian Fitzgerald            and Paul  Callahan--two co-conspirators who testified for the            government  at  trial--met  in  Walpole   penitentiary  while            serving terms of imprisonment  there.  The two men  formed an                                            ____________________                 1The ten are Kenneth Innamorati, William Thompson, James            Grady, Robert  DeMarco Sr.,  William Letters,  Robert Demarco            Jr., Phillip  Bargalla, James Litterio,  John Boisoneau,  and            Joseph Gilberti.                                           -14-                                         -14-            alliance, agreeing  that upon their release  from prison they            would begin a drug distribution network.                 After their release, Callahan and Fitzgerald began  drug            dealing.  In  1985, they were  approached by an  intermediary            and  asked  if they  could supply  a  kilogram of  cocaine to            Kenneth  Innamorati  and   his  then-partner,  Noel  Bouvier.            Fitzgerald and  Callahan agreed to supply  the cocaine, which            they acquired  from a  source in Everett,  Massachusetts, and            then delivered  to Innamorati  in Framingham in  exchange for            $55,000.   About three months later,  Fitzgerald and Callahan            agreed to join forces  with Innamorati and Bouvier.   At that            time,  Innamorati's  principal  source  for  cocaine  was  an            individual in Boston.  Callahan and Fitzgerald each picked up            kilograms of  cocaine from the  supplier and delivered  it to            Innamorati, who weighed it, mixed it with other substances to            increase  its   volume,   and  separated   it  into   smaller            quantities.  Callahan and Fitzgerald then delivered the drugs            to Innamorati's customers.                 After a time, Innamorati lost the services of his Boston            supplier,  and  Callahan  began  supplying   Innamorati  with            cocaine from  Callahan's own sources.   Callahan made contact            with  an  individual named  Tom  Reilly in  Florida.   Reilly            ultimately  supplied  Callahan  and  Innamorati   with  large            quantities  of cocaine and marijuana on  a regular basis from            the  summer of 1985 onward.   In June  1985, Fitzgerald hired                                         -15-                                         -15-            defendant Grady, who drove a tractor-trailer,  to pick up the            cocaine and marijuana from  Reilly in Florida and haul  it to            Massachusetts.   Grady  made  this trip  about  once a  month            between  June 1985  and February 1988,  occasionally bringing            cash down to Florida to pay for prior shipments.                 Callahan  and Innamorati  developed an  elaborate system            for  storage  and distribution  of  the  narcotics once  they            reached  Massachusetts.   The  drugs were  stored in  several            different  locations.   For example,  some of the  drugs were            stashed in the trunk of a  car parked in a storage unit  at a            self-storage   facility   called  Hyperspace   in  Holliston,            Massachusetts.  Drugs were also  stored in a rented apartment            in  a  development  called  Edgewater  Hills  in  Framingham,            Massachusetts.   In May  1987, a  new apartment  in Edgewater            Hills was  selected.   Edward Tulowiecki, an  acquaintance of            Innamorati who was a star witness at trial, agreed to live in            the  apartment  and  assist  Innamorati;  Innamorati  paid  a            portion of the rent for the apartment.                   This  Edgewater  Hills  apartment  became  the  base  of            operations   for  much   of  the   conspirators'  activities.            Innamorati and  Callahan moved  a considerable array  of drug            distribution  paraphernalia  into  the  apartment,  including            scales,  a  safe and  a  freezer.   Callahan  and  Innamorati            frequently came  to  the  apartment  to deliver  or  pick  up            packages of cocaine  and marijuana, or to prepare and package                                         -16-                                         -16-            them for distribution.  Tulowiecki was  not permitted to have            other guests in the apartment.                 Innamorati  used  beepers  and  cellular  telephones  to            facilitate his distribution activities.   Each of the persons            to whom he regularly distributed the narcotics was assigned a            code number.  To place an order, he or she would place a call            to Innamorati's beeper,  and then enter  the code number  and            the quantity sought; the order  would then be transmitted  to            the  digital  display  on  Innamorati's  beeper.   Innamorati            preferred   cellular  rather  than  ordinary  telephones  for            communications  relating  to  drug  distribution,  because he            believed that cellular telephones were more difficult to tap.            William  Thompson,  a former  Clinton  police  officer and  a            friend of Innamorati, acquired and installed several cellular            phones for Innamorati and registered the phones in Thompson's            own company name.                 Innamorati distributed cocaine and marijuana to numerous            individuals  between summer 1985 and February 1988, including            Thompson,   William   Letters,  James   Litterio,   and  John            Boisoneau;  each of  these purchasers  was assigned  a beeper            number  in Innamorati's  system.   Callahan had  a number  of            customers of his own during this period, including defendants            Robert DeMarco Sr., Robert  DeMarco Jr., Phillip Bargalla and            Joseph  Gilberti.   Generally there  was evidence  that these                                         -17-                                         -17-            persons resold  portions of  the cocaine they  purchased from            Callahan or Innamorati to others.                 In  November 1987  Jeffrey Scott,  a nephew  and cocaine            customer  of Callahan  who  was  also  in debt  to  Callahan,            contacted the  Drug Enforcement  Agency ("DEA") and  provided            information  about  Callahan's  activities.   This  began  an            extensive covert investigation  into the  Callahan/Innamorati            operation.  By late February 1988 the DEA had obtained enough            information  to execute  a series  of search warrants  at the            Hyperspace facility, Fitzgerald's and  Callahan's residences,            and  the Edgewater Hills apartment.   At the  latter site the            agents  found  two kilograms  of  cocaine  and 75  pounds  of            marijuana,   as  well  as  drug  distribution  paraphernalia,            records of  drugs transactions and  a small cache  of weapons            and ammunition.                 After a  32-day jury  trial conducted from  September to            November  1990,  all  ten  defendants  in  this  appeal  were            convicted.  In addition  to the common conspiracy count,  all            defendants except Thompson and Bargalla were convicted of one            or more  counts of  possession of cocaine  or marijuana  with            intent to distribute  in violation of 21  U.S.C.   841(a)(1);            Bargalla  was convicted  of  the lesser  included offense  of            simple possession.  In  addition, Innamorati was convicted of            using  a firearm in relation to a drug trafficking offense in            violation  of  18 U.S.C.     924(c)(1), and  of  conducting a                                         -18-                                         -18-            continuing criminal  enterprise in  violation of 21  U.S.C.              848.                 The  ten  defendants  in  this  appeal  raise   numerous            separate  issues relating  either to conviction  or sentence.            In  certain instances,  claims  of error  are  made but  only            cursorily discussed.  Where  appropriate we have invoked "the            settled  appellate   rule  that  issues  adverted   to  in  a            perfunctory manner, unaccompanied by some effort at developed            argumentation, are deemed waived."  United States v. Zannino,                                                _____________    _______            895  F.2d 1,  17  (1st Cir.),  cert.  denied, 494  U.S.  1082                                           _____________            (1990).  Because a  number of the claims overlap,  we discuss            them by subject.                                    II.  SEVERANCE                 Innamorati,  Thompson, Grady, DeMarco  Sr., DeMarco Jr.,            Bargalla, and Gilberti challenge the  district court's denial            of their motions  to sever each of their trials from those of            their  co-defendants.   Defendants  argue that  severance was            necessary to protect them  from prejudice and the possibility            that the jury would fail to  consider the evidence separately            as to each defendant.                 Prejudice  from  joinder  can  come  in  various  forms,            including  jury confusion,  the  impact of  evidence that  is            admissible  against  only  some  defendants,  and "spillover"            effects where the crimes of some defendants are more horrific            or  better documented than the crimes of others.  But joinder                                         -19-                                         -19-            is  normally  economical--especially  where   defendants  are            charged with the same  core crime--and clear instructions can            often  confine the  risk of  prejudice.   Accordingly, it  is            settled that defendants are  not entitled to severance merely            because it would improve  their chances of acquittal; rather,            substantial prejudice "amounting to a miscarriage of justice"            must  be  proved before  a  severance is  mandatory.   United                                                                   ______            States  v. Sabatino, 943 F.2d 94, 96-97  (1st Cir. 1991).  We            ______     ________            review the refusal of a trial court to  grant a severance for            abuse of discretion, United States v.  Johnson, 952 F.2d 565,                                 _____________     _______            581 (1st Cir. 1991), cert. denied,  113 S. Ct. 58 (1992), and                                 ____________            we find no such abuse in this case.                 Despite the number of defendants, there is no indication            of jury confusion in this case.  The government in summing up            separated the evidence as to each defendant.  The trial judge            gave  the  customary   instruction,  emphasizing  that   each            defendant  must be  judged separately  based on  the evidence            admissible against that defendant.  The jury apparently found            itself  capable   of  distinguishing:     it  acquitted   one            defendant--Thomas Agnitti, who is not a party to this appeal-            -on the  conspiracy count and  on other counts  convicted two            defendants  (Agnitti  and Bargalla)  only on  lesser included            offenses.                 Innamorati aside,  none of the defendants  points to any            specific   evidence   that   significantly  inculpated   that                                         -20-                                         -20-            defendant but was admissible only  against another defendant.            Indeed,   the  core  of  the  case  was  the  alleged  common            conspiracy; thus, after the necessary foundation, most of the            evidence  of  wrongdoing by  one  conspirator was  admissible            against other conspirators  as well.  Nor  is this a  case in            which  separable  acts  of  an individual  defendant  are  so            disproportionately heinous  that there  is an  arguable taint            merely  from the association  among defendants.   In sum, for            everyone apart  from  Innamorati, this  is  a  garden-variety            joinder almost routine in  drug conspiracy cases.  Innamorati            does point to evidence that he  argues was harmful to him but            properly admissible only as to another defendant, namely, the            grand  jury testimony of Thompson.   In our  view, this grand            jury testimony  was not  admissible against  Innamorati; but,            for  reasons discussed in part IV, we also conclude also that            Innamorati is not entitled  to a reversal on account  of this            testimony.                           III.  SUFFICIENCY OF THE EVIDENCE                 Thompson,   Grady,   Letters,  DeMarco   Jr.,  Bargalla,            Litterio and  Gilberti argue that the  evidence introduced at            trial  was   insufficient  to  support   their  convictions.2                                            ____________________                 2Innamorati  also raises  this issue  in his  brief, but            only by asserting  in conclusory terms that  the evidence was            insufficient to establish his  guilt.  Ordinarily, this claim            would be waived but in this instance we  necessarily consider            the weight  of the evidence against him in part IV as part of            our harmless error analysis.                                         -21-                                         -21-            Defendants  bear the  heavy burden  of demonstrating  that no            reasonable  jury  could  have  found  them  guilty  beyond  a            reasonable doubt.  See Rivera-Santiago, 872  F.2d at 1078-79.                               ___ _______________            An appellate court must  view the evidence in the  light most            favorable   to  the   prosecution,  "drawing   all  plausible            inferences  in  its  favor   and  resolving  all  credibility            determinations  in line  with  the jury's  verdict."   United                                                                   ______            States  v. David, 940 F.2d 722, 730 (1st Cir.), cert. denied,            ______     _____                                ____________            112 S. Ct. 605 (1991).  We conclude that, with one exception,            the  prosecution offered  evidence  adequate to  support  the            convictions.                                 A.  William Thompson                 Thompson was  convicted of conspiracy to  distribute and            to possess  with intent to distribute  cocaine and marijuana,            in violation of 21  U.S.C.    846 and 841(a)(1).   Conviction            for conspiracy requires proof that the defendant entered into            an  agreement  with  another  to  commit  a crime,  here,  an            agreement   with  Innamorati   to   distribute  cocaine   and            marijuana.   United States v. Concemi, 957 F.2d 942, 950 (1st                         _____________    _______            Cir. 1992).  This agreement need not be expressed; it "may be            implicit in  a working relationship between  the parties that            has  never been  articulated  but nevertheless  amounts to  a            joint criminal enterprise."  United States v. Moran, 984 F.2d                                         _____________    _____            1299, 1300 (1st Cir. 1993).                                         -22-                                         -22-                 There was evidence--in  fact, Thompson  admitted in  his            testimony  before  the  grand  jury--that  Thompson  provided            "registry checks" of license plates at Innamorati's request.             When Innamorati became suspicious of vehicles that he thought            were following  him or  that were  being used  by prospective            drug purchasers, he asked  Thompson, a former police officer,            to  run the plates through the state's computer registry.  If            the  registry check came back "not on file" or "no response,"            Innamorati had reason to believe that the vehicle belonged to            a  law  enforcement  agency  and  was   being  driven  by  an            undercover agent.   Thompson  also admitted that  he acquired            two cellular telephones for  Innamorati's use which  Thompson            leased in his own company's name.                 Relying primarily on Direct  Sales Co. v. United States,                                      ________________     _____________            319  U.S. 703,  709  (1943), Thompson  argues that  there was            insufficient evidence that  Thompson knew of the use to which            Innamorati  put these  goods and  services, or  that Thompson            intended  that they  be used  in that  manner.   But Thompson            admitted in testimony before the grand jury that he regularly            purchased cocaine from  Innamorati when he was employed  as a            police officer from 1970 to  1978.  Tulowiecki testified that            he regularly distributed cocaine to  Thompson from Innamorati            in  1987.     Thompson  was  assigned  a   beeper  number  in            Innamorati's communications network.   Thompson also admitted                                         -23-                                         -23-            that he knew that the cellular telephones he provided were to            be used to "elude law enforcement."                   Thompson argues vehemently that he could not have been a            full-fledged conspirator because he was excluded from certain            locations at  which Innamorati stored his  drugs, and because            Callahan  and Fitzgerald  could  not identify  him at  trial.            These  facts  do  not  defeat Thompson's  membership  in  the            conspiracy.   It  is black-letter  law that  one need  not be            familiar with every  other person  with whom he  is found  to            have conspired, nor must he participate  in the conspiracy to            the same  extent as all others.   See United States  v. Rios,                                              ___ _____________     ____            842 F.2d 868,  873 (6th  Cir. 1988), cert.  denied, 488  U.S.                                                 ____   ______            1031  (1989); United States v.  Giry, 818 F.2d  120, 127 (1st                          _____________     ____            Cir.), cert. denied, 484 U.S. 855  (1987).  Taken as a whole,                   ____  ______            the evidence allowed  the jury  to find that  Thompson was  a            knowing member of the drug conspiracy.                                     B.  James Grady                 The   evidence  showed   that  Grady   brought  numerous            shipments of  cocaine and marijuana from  Florida to Callahan            and   Innamorati  in   Massachusetts.     Several  witnesses,            including  Callahan,  Fitzgerald  and  Reilly,  described  in            consistent  detail  Grady's   practice  of  transporting  the            cocaine and the cash in a tool box in the cab of his tractor-            trailer.   There was also ample evidence that Grady knew that            the shipments contained narcotics.  Fitzgerald testified that            he  told Grady that the  tool box contained  cocaine.  Reilly                                         -24-                                         -24-            recounted one occasion on which Grady  watched while bales of            marijuana were loaded  onto his truck.  Evidence  showed that            Grady  occasionally  brought  large  amounts  of  cash   from            Massachusetts to Florida to pay Reilly.                 In the face  of this testimony, Grady  contends that the            evidence  was insufficient  to convict  him of  conspiracy to            distribute.    He argues  that  Callahan  and Innamorati  had            suppliers  other than Reilly and that even as to Reilly there            were other couriers in addition to Grady.  He also points out            that although  the conspiracy allegedly  continued from  1984            until November  1988, the  evidence of his  participation was            limited to  the period between  June 1985 and  February 1988.            But Grady need not  have been the exclusive courier  in order            to be  a conspirator, nor must  he have been involved  in the            conspiracy during  the entire life  of the  operation.   See,                                                                     ___            e.g.,  United States  v. Baines,  812 F.2d  41, 42  (1st Cir.            ____   _____________     ______            1987).  We have  no trouble finding the evidence  adequate to            support Grady's conspiracy conviction.                 In addition to conspiracy Grady was also convicted under            counts  three and  four of  the  indictment of  possession of            cocaine  on  February  25  and   27,  1988,  with  intent  to            distribute.    These  were  the  dates  on  which  DEA agents            executed the  search warrants on the  Hyperspace facility and            the   Edgewater   Hills   apartment,   respectively.      The            government's theory  at trial  was that  Grady was guilty  of                                         -25-                                         -25-            possessing the  cocaine found  at these locations  because he            had carried that cocaine from Florida in his tractor-trailer.            Although  Grady  was  linked  to the  cocaine  found  in  the            Hyperspace  facility,  we agree  with  Grady  that there  was            insufficient  evidence  that  he ever  possessed  the cocaine            found in the Edgewater Hills apartment.                 Callahan  testified   that  he  gave  Grady   a  toolbox            containing three kilograms of  cocaine in Florida on February            20,  1988, and that on  February 24 he  retrieved the toolbox            from  Grady  in Massachusetts  and  drove  to the  Hyperspace            storage  facility.  The next day, the government executed the            search  warrant  at the  facility  and  seized exactly  three            kilograms of cocaine.  It is difficult to see, therefore, how            the  cocaine  seized a  few  days  later from  the  Edgewater            apartment  could  also have  come  from  Grady's February  20            shipment.  The government argues that Callahan also testified            that  he  brought  the  toolbox  with  him to  the  Edgewater            apartment after  leaving Hyperspace.    Thus, the  government            says,  "[w]hile the evidence on  [this] score may  be open to            dispute," that dispute was for the jury to resolve.                 It  is true  that Callahan's  testimony is  unclear--one            cannot  tell  whether  he   stored  the  three  kilograms  at            Hyperspace, or took them with him when he left there and went            to  the Edgewater apartment.  But the testimony of Scott, who            accompanied  Callahan,  is  clear   on  this  point.    Scott                                         -26-                                         -26-            testified that Callahan took the cocaine  out of the toolbox,            placed it in the trunk  of the car in the  Hyperspace storage            compartment, and then left the facility with the toolbox, now            emptied of its drugs.  The testimony is also clear  that only            three kilograms were  transported by Grady on  this trip, and            that exactly three kilograms were seized by federal  agents a            few days later from the Hyperspace facility.                   It is of course quite  possible, indeed likely, that  at            least some  of the cocaine  found in the  Edgewater apartment            was  a remnant  of a prior  shipment by  Grady.   But this is            conjecture.  The government does not advance the theory here,            nor did it  do so before the jury, and  there was evidence of            other  suppliers  and  couriers.    Accordingly,  finding  no            evidence  to support  Grady's conviction  for possessing  the            cocaine  seized on February 27, we  reverse his conviction on            count  four.   This  may have  no  effect on  Grady's  actual            sentence, since the counts were grouped and  the sentence was            based  on the  volume  of  drugs  foreseen;  but  out  of  an            abundance of caution we remand his case to the district court            for resentencing.                                 C.  William Letters                 Letters  was convicted  of conspiracy  and one  count of            possession with intent  to distribute.  He  argues that there            was insufficient  evidence to prove  he that entered  into an            agreement  to distribute  narcotics.   He  concedes that  the                                         -27-                                         -27-            evidence showed a number of deliveries of cocaine to him from            Innamorati (via  Tulowiecki),  in amounts  ranging from  nine            grams to, on  one occasion, as much as an  ounce (28 grams).             But Letters says that the evidence also showed that he  was a            very heavy personal user of cocaine.  He argues that there is            no basis for  an inference  that he was  involved in  further            distribution of the  drugs he acquired.   Thus, according  to            Letters, "[t]he  government's  proof only  demonstrated  that            Letters  was a  regular customer  of Innamorati  for personal            use."     We  need not  decide  when and  whether "a  regular            customer" buying  for  personal use  could  be treated  as  a            conspirator in a drug distribution  ring, see Moran, 984 F.2d                                                      ___ _____            at 1302-04,  because the evidence permitted the  jury to find            that Letters also distributed portions of the large amount of            cocaine  he  purchased   from  Innamorati.    During   direct            examination of Tulowiecki, the following exchange took place:                 Q.    And  how  did  you  package the  cocaine  for                 Letters?                 A.   Well, with  Bill Letters,  we would  take nine                 grams of cocaine and  put in five grams  of cut.[3]                 And I  grind that all  together, and it  would come                 out  to fourteen.  And  I would put  these all into                 individual  packages.   And  one,  another specific                 package  for Bill  Letters  himself  that was  pure                 cocaine.                                    .   .   .   .                                             ____________________                 3 Various  witnesses explained  during trial  that "cut"            refers to  additives  that were  mixed  into the  cocaine  to            increase its volume and, potentially, its resale value.                                         -28-                                         -28-                 Q.  Why  did [Innamorati] want  you to package  the                 cocaine this way [for Letters]?                 A.   Because Billy  Letters didn't have  a scale. .                 . .                 From  Tulowiecki's reference to individual packaging and            to a separate package of  cocaine "for Bill Letters himself,"            there  is certainly  a permissible  inference that  the other            individual  packages were  destined to  be resold  to others.            This  inference is reinforced by the use  of "cut" and by the            large  volume  of cocaine  that  Letters  acquired, shown  by            Tulowiecki's  records to be a total of 336.5 grams of cocaine            between June  1987 and February 1988.   Accordingly, Letters'            convictions  for  conspiring  to distribute  cocaine  and for            possessing cocaine  with intent to distribute  were supported            by adequate evidence.                                D.  Robert DeMarco Jr.                 DeMarco  Jr. was convicted  of conspiracy and possession            of  cocaine with intent  to distribute.   His  challenge goes            less  to the  quantity of  the evidence  in support  of these            convictions as to its  quality.  He argues that  the evidence            was deficient because the government did not catch him in the            act,  such as  by  recording his  telephone conversations  or            conducting  a controlled  buy  from him,  but instead  relies            entirely on "weak circumstantial evidence."  The evidence may            not be overwhelming but it is sufficient.                                         -29-                                         -29-                 Both Callahan and Scott described repeated deliveries of            cocaine  to DeMarco Jr.  In addition, Callahan testified that            DeMarco Sr. told him that between May 1987 and February 1988,            DeMarco  Jr.  was selling  ounces,  half-ounces and  quarter-            ounces of  cocaine to his (DeMarco  Jr.'s) various customers,            and  complained that DeMarco Jr. was  putting all the profits            "up  his  nose."   In  addition, Scott  testified  that after            Callahan  was  arrested,  DeMarco  Jr.   complained  that  he            (DeMarco Jr.)  was supposed to receive the briefcase in which            Callahan  had stored a quantity of cocaine to conceal it from            the DEA.  The evidence was  adequate to find that DeMarco Jr.            entered into an agreement to distribute cocaine and possessed            cocaine with intent to distribute it.                                  E. Philip Bargalla                 Bargalla was convicted of conspiracy  to distribute, but            acquitted of  the substantive count of  possession of cocaine            with  intent  to distribute  (the  "PWI"  count) and  instead            convicted  of   the  lesser   included   offense  of   simple            possession.    Bargalla  argues  that  there  was  inadequate            evidence  that he entered into a conspiracy to distribute and            that,  especially  in  light  of his  acquittal  of  the  PWI            offense, the conspiracy  conviction must  have resulted  from            prejudicial  "spillover."  Bargalla  argues that a conspiracy            cannot  fairly be inferred from the  facts that Bargalla took            possession of Callahan's  briefcase after Callahan's  arrest,                                         -30-                                         -30-            and was  in possession of  Callahan's car at the  time it was            seized by the DEA.                 The short answer is that additional evidence showed that            Bargalla  was a  regular purchaser  of cocaine  and marijuana            from  Callahan and  a  distributer in  his  own right.    For            example,  Jeffrey Scott  testified  that he  made about  five            deliveries of  marijuana to  Bargalla from Callahan  in 1987,            and Callahan confirmed that he sold cocaine  and marijuana to            Bargalla on a regular  basis beginning in late 1985  or early            1986.  Moreover, there was evidence that Bargalla resold some            of  the narcotics he acquired from Callahan.  Scott testified            that he saw  distribution paraphernalia -- a  small scale and            chemicals  such as Inositol that are used to mix with cocaine            to  increase its volume -- in Bargalla's bedroom.  Scott also            testified  that  Bargalla  complained  that people  were  not            paying  him  on time  for  the  cocaine  and  marijuana  that            Bargalla provided them.                   This  evidence  was  more  than  sufficient  to  support            Bargalla's  conviction for  conspiring to  distribute cocaine            and marijuana.   The  testimony concerning the  briefcase and            Callahan's car merely served  to corroborate Bargalla's close            relationship with Callahan and  his organization.  The jury's            favorable treatment of him on the PWI count may or may not be            a  windfall but it cannot  be used to  impeach the conspiracy            conviction.   See United States  v. Senibaldi, 959 F.2d 1131,                          ___ _____________     _________                                         -31-                                         -31-            1135 (1st Cir. 1992) ("inconsistency in a criminal verdict is            not grounds for overturning it").                                  F.  James Litterio                 Litterio  does  not  question  the  sufficiency  of  the            evidence to support his  conviction for conspiracy.  Instead,            he challenges the evidence with respect to count  five, under            which  he and  Innamorati were  convicted of  possession with            intent to distribute cocaine on  or about September 2,  1987.            We find the evidence sufficient.                 The  primary evidence  supporting the  possession charge            was the  testimony of Tulowiecki, who  described a four-ounce            purchase  of cocaine  by  Litterio  from  Innamorati  shortly            before  September 2,  1987.   Tulowiecki testified  in detail            that  he  and Innamorati  packaged  four  ounces of  cocaine,            delivered  the package  to Litterio,  and received  the $5300            payment several  days later.  Tulowiecki  also testified that            in  the course  of arranging  this transaction  Litterio said            that he wanted  the four  ounces of cocaine  for his  brother            Mark.    In addition,  in  January  1989 Tulowiecki  secretly            recorded  a  conversation  with Litterio  in  which  Litterio            referred to the four-ounce transaction.                   Litterio  argues at  length that  Tulowiecki's testimony            was   inherently   unreliable   and   uncorroborated.     The            credibility of  Tulowiecki's testimony  was a matter  for the            jury to resolve.  As it happens, there was evidence that Mark                                         -32-                                         -32-            Litterio visited James Litterio immediately  after the latter            acquired the  drugs, and further evidence  that Mark Litterio            was  involved  in  the sale  of  four  ounces  of cocaine  to            undercover  officers just  after James  Litterio's four-ounce            purchase  from Innamorati.   The  jury could  easily conclude            that James  Litterio provided the four-ounce  package to Mark            after acquiring it from Innamorati.                                  G.  Joseph Gilberti                 Gilberti argues  that  evidence of  "isolated sales"  of            cocaine from Callahan or Scott to  Gilberti is not sufficient            to  convict  Gilberti of  participation  in  a conspiracy  to            distribute.   The  evidence, however,  showed more  than mere            "isolated sales;" it showed that Gilberti was another cog  in            the Callahan/Innamorati machine.                  Scott testified that  he delivered  cocaine to  Gilberti            for  Callahan   in  1986,  generally  in   one  to  two-ounce            quantities.  He testified that he made approximately 25 to 50            deliveries  of  this  nature  to Gilberti  over  a  six-month            period,   including  one   four-ounce  delivery.     Callahan            confirmed that Gilberti was one of the individuals to whom he            delivered cocaine.  Gilberti developed  a code with Scott and            Callahan so  that he  could  order drugs  over the  telephone            without detection; he would refer to "green buckets of paint"            when ordering  marijuana, and  "white buckets of  paint" when            requesting cocaine.                                          -33-                                         -33-                 There  was also  evidence that  the distribution  of the            cocaine  did  not  end  when  it  reached  Gilberti.    Scott            testified   that   he   gave   Gilberti   drug   distribution            paraphernalia--  including  a scale,  ziploc  bags and  other            packaging, and sudocaine, a product used to mix with cocaine-            -and showed  Gilberti  how  to  use these  items.    Callahan            testified that Gilberti  told him that he, Gilberti, had been            distributing  cocaine to  an individual  named Ricky  Green.             The  evidence was adequate  to support  Gilberti's conviction            for  conspiracy  and possession  of  cocaine  with intent  to            distribute.   The same  evidence supported the  forfeiture of            Gilberti's property  under 21  U.S.C.    853, since  his only            challenge to that forfeiture  is that the evidence underlying            the conspiracy conviction was deficient.                    IV.  GRAND JURY TESTIMONY OF WILLIAM THOMPSON                 On June  22, 1988,  Thompson testified at  length before            the grand jury about the drug distribution conspiracy in this            case.  Thompson's testimony  consisted almost entirely of the            government's recitation of a prior statement made by Thompson            to  a DEA  agent, interspersed  at intervals  with Thompson's            confirmation of  the truth of the  prior statement, sometimes            with  qualifications.   Some  of this  testimony incriminated            Thompson  himself,   but  a  great  deal   of  the  testimony            incriminated  certain  of  his   co-defendants,  particularly                                         -34-                                         -34-            Innamorati.  Thompson was  subsequently indicted by the grand            jury along with the other defendants in this case.                 At trial, Thompson  elected not to testify.   The court,            over defendants' objections, permitted the government to read            into evidence the entire  transcript of Thompson's grand jury            testimony.   Innamorati, Grady, Boisoneau  and, surprisingly,            Thompson himself  claim that this testimony  was inadmissible            hearsay and that its introduction was reversible  error.  The            defendants also argue that  the introduction of this evidence            violated  their   Sixth  Amendment  right   to  confront  the            witnesses against them, but this amounts to the same argument            dressed in different garb.4                                 A.  Admissibility                   The  basis   for  the  district  court's   admission  of            Thompson's grand  jury testimony  is not entirely  clear from            the record.  At one point, the court stated:                 I'm going to allow . . . [the grand jury testimony]                 in evidence and instruct the jury the conversations                 pertaining to Thompson  are admitted at  this point                 only against  Thompson.  Unless and  until there is                 other   evidence  that  connects  the  other  named                                            ____________________                 4The  admission  of  an  out-of-court  statement falling            within  a "firmly rooted" exception  to the hearsay rule does            not  violate  the Confrontation  Clause.    See Bourjaily  v.                                                        ___ _____________            United States, 483 U.S. 171, 182-83 (1987);  Ohio v. Roberts,            _____________                                ____    _______            448 U.S.  56, 66 (1980).  Most courts have concluded that the            declaration against interest  exception embodied  in Fed.  R.            Evid. 804(b)(3) is a "firmly rooted" exception to the hearsay            rule.  See, e.g., United States v. York, 933 F.2d 1343, 1363-                   ___  ____  _____________________            64 & n.5  (7th Cir.), cert.  denied, 112 S.  Ct. 321  (1991).                                  _____________            Thus, the  constitutional issue merges  into the  evidentiary            question.                                         -35-                                         -35-                 defendants  in  this   conspiracy,  it's   excluded                 against them.            Shortly  thereafter, in  response to  a renewed  objection by            defense  counsel,  the  court  ruled  that  "the  grand  jury            testimony  of  William Thompson  is  allowed.   It's  allowed            against Thompson.   It's a declaration  against interest, and            I'll explain that to the  jury."  Id. at 62.   No explanation                                              __            or limiting instruction was given to the jury.                 The  only argument  urged by the  United States  in this            appeal to  overcome the hearsay  objection is that  the grand            jury  testimony was a declaration against  interest.  Fed. R.            Evid.  804(b)(3)  excepts from  the  hearsay  rule, when  the            declarant is unavailable as a witness,                      [a] statement  which . . .  so far tended                      to  subject  the  declarant  to  civil or                      criminal   liability   .  .   .   that  a                      reasonable  person   in  the  declarant's                      position   would   not   have  made   the                      statement unless believing it to be true.            Thompson's  invocation  of  the   Fifth  Amendment  at  trial            rendered him "unavailable"  for purposes  of Rule  804(b)(3).            See  California v.  Green,  399 U.S.  149,  168 n.17  (1970).            ___  __________     _____            Under  the  exception,  a  declaration  against  interest  is            admissible against  anyone to  whom  the statement  pertains.            See  United  States v.  Myers, 892  F.2d  642, 644  (7th Cir.            ___  ______________     _____            1990).                 Whether Thompson's  grand  jury testimony  represents  a            statement  against  penal  interest  poses the  question  how                                         -36-                                         -36-            broadly  to define the concept  of a "statement."   One could            describe  the  entire  grand   jury  testimony  as  a  single            statement or, at the other  extreme, could subdivide a single            sentence ("John and  I robbed the  bank") into two  different            statements to  be tested separately.   Both the  rationale of            the  exception--the   trustworthiness  of  the  unit   to  be            admitted--and our own precedents  yield no mechanical rule as            to where, in between these extremes, the line is to be drawn.                  A  further concern  is that,  even if  a broad  view is            taken  as to the scope of the "statement," a co-defendant who            confesses to  the authorities  and inculpates another  may be            seeking  to curry favor and cast the main blame upon another.            Thus  the "statement"  as a  whole may  be  very much  in the            interests of  the confessing party  who is minimizing  his or            her  role.   Some  have urged  a  blanket exclusion  of  such            confessions as inherently untrustworthy; early drafts of Rule            804(b)(3) excluded "a statement or confession offered against            the  accused in  a criminal  case, made  by a  codefendant or            other person implicating both himself and  the accused."  See                                                                      ___            generally  4  Weinstein  & Berger,  Weinstein's  Evidence,               _________                           _____________________            804(b)(3) [03] at 804-152 & n.42 (1992).                 We need not  pursue these issues  in depth.   Thompson's            lengthy grand  jury testimony contains only  a few statements            that  are  directly  against Thompson's  penal  interest--for            example,  his descriptions  of procuring the  cellular phones                                         -37-                                         -37-            and checking  license plate numbers--and even  these could be            innocent acts,  were context  ignored.  If  these inculpatory            statements of Thompson were isolated  from the rest, it would            be hard to say that the balance of the grand  jury testimony,            especially the numerous accusations against  Innamorati, were            against   Callahan's  interest.     Thus   if  the   directly            inculpatory statements are severed,  little of the grand jury            testimony would be against Thompson's interest and admissible            against third parties.                 If the inculpatory statements  are not severed, the same            result  prevails.   Taken as  a  whole the  testimony greatly            minimizes Thompson's own role in any wrongdoing.  He admitted            a  few acts  of  logistical assistance,  doubtless hoping  to            maintain  (as  he  does   here)  that  they  were  innocently            motivated.   But the thrust  of the testimony  is that others            were  guilty of  wrongdoing from  which Thompson  himself had            been excluded but happened to have some  knowledge.  Although            later  the extent of this  knowledge could be  turned into an            inference harmful to his  interests, it is difficult  to view            the  testimony   as  a  whole  as   consciously  contrary  to            Thompson's self-interest at the time it was made.  "[F]or the            declaration to  be trustworthy the declarant  must have known            it  was  against  his  interest  at  the  time  he  made  the            statement".   Filesi v. United States, 352 F.2d 339, 343 (4th                          ______    _____________            Cir. 1965).                                         -38-                                         -38-                 In  sum, the bulk of the  testimony did not qualify as a            declaration against penal interest.  As to Thompson, anything            he said constituted  an admission  so there was  no error  in            receiving the grand jury testimony as to him.  Fed.  R. Evid.            801(d)(2)(A).   But as to  the other defendants,  most of the            testimony  was both  hearsay  and outside  the scope  of Rule            804(b)(3)'s  exception.    We  need not  consider  whether  a            limiting instruction would  have been a sufficient  safeguard            to allow the testimony  against Thompson but not the  others,            compare Bruton v. United  States, 319 U.S. 123  (1968), since            _______ ______    ______________            no such instruction was given.                                     B. Prejudice                 Since  error was  committed in  allowing the  grand jury            testimony except as to  Thompson, the only remaining question            is  whether it was prejudicial as to the other defendants who            complain of its admission: Innamorati, Grady,  and Boisoneau.            On direct appeal, in  the case of a constitutional  error (as            this one may be viewed in light of the Confrontation Clause),            the  test for  harmless  error  is  a  demanding  one.    The            appellate court  must be persuaded beyond  a reasonable doubt            that  the   jury's  verdict  was  not   attributable  to  the            challenged evidence.  See  Harrington v. California, 395 U.S.                                  ___  __________    __________            250, 254 (1967);  Milton v. Wainwright, 407  U.S. 371, 377-78                              ______    __________            (1972);  United States v. Figueroa, 976  F.2d 1446, 1455 (1st                     _____________    ________            Cir. 1992), cert. denied, 113 S. Ct. 1346 (1993).                          ____________                                         -39-                                         -39-                 This  test is,  and  ought to  be, stringently  applied,            resolving all reasonable doubts against the government, since            it comes close  to a trespass upon the jury's  function.  But            the  case law  is  clear  that,  if the  legitimate  evidence            unquestionably assured  the jury's verdict of conviction, the            error in admitting other evidence is not normally grounds for            reversal.  Harrington, 395 U.S. at 256; Figueroa, 976 F.2d at                       __________                   ________            1455.5    Nor  is  this  harmless  error   test  confined  to            inadmissible evidence  so slight or duplicative  that one can            assume that the  jury scarcely  noticed it.   The  wrongfully            admitted evidence  must be  "quantitatively  assessed in  the            context of  other evidence presented  . . . ."   Sullivan, 61                                                             ________            U.S.L.W. at  4519 (quoting Arizona v. Fulminante,  111 S. Ct.                                       _______    __________            1246,  1264  (1991)).   Even  where  the wrongfully  admitted            evidence is singular and weighty, it can still  be "harmless"            where the  legitimate evidence is overwhelming.   E.g., Clark                                                              ____  _____            v. Moran, 942 F.2d 24, 27 (1st Cir. 1991).               _____                 Against this background,  we conclude that  the wrongful            admission  of  the grand  jury  testimony did  not  alter the            inevitable  outcome of the case against Innamorati.  We reach            this conclusion only after a  careful scrutiny of the record,                                            ____________________                 5Errors  that  the   Supreme  Court  deems  to   warrant            automatic  reversal  are  rare.     See,  e.g.,  Sullivan  v.                                                ___   ____   ________            Louisiana,   61  U.S.L.W.  4518   (June  1,  1993)  (improper            _________            reasonable  doubt instruction);  Chapman  v. California,  386                                             _______     __________            U.S.  18,  23  n.8 (1966)  (denial  of  right  to counsel  or            partiality of trial judge).                                         -40-                                         -40-            for  the  grand jury  testimony  inculpates  Innamorati in  a            number  of respects  that are  neither trivial  nor literally            duplicative of  other evidence.  Among  other things Thompson            testified that:                 Mr.   Innamorati  sold  marijuana   while  in  high                 school . . . .  Around 1970 . .  . [he] developed a                 large distribution network which comprised of [sic]                 many   residents   of   Clinton    and   Lancaster,                 Massachusetts.                 [I]n  1985  Mr.  Innamorati  was  arrested  by  the                 Massachusetts  State Police [while in possession of                 cocaine and  he later boasted that he] had paid his                 attorney . . . several  thousand dollars to fix the                 charges against Mr. Innamorati.                 [I]n the fall  of 1987, [I] became aware  that both                 Innamorati   and  Tulowiecki   purchased  automatic                 pistols  and possessed  these  pistols when  making                 drug  transactions.  On  several occasions, [I] saw                 Innamorati  and  Tulowiecki before  and  after drug                 deals and they were always carrying the pistols.                 Tulowiecki  also told  [me]  that  Innamorati  sent                 Paula [sic] Bufton  [Innamorati's companion] to the                 corrections  facility  to  visit   Tulowiecki,  and                 during  the  meeting, Bufton  told  Tulowiecki that                 Innamorati put  aside one hundred  thousand dollars                 for any legal aid that Tulowiecki would incur . . .                 .   [Bufton told]    Tulowiecki to  be patient  and                 don't fold.  That Tulowiecki would be taken care of                 if he did the right thing.                 Nevertheless,   the   case   against    Innamorati   was            overwhelming and it is no accident that his "insufficiency of            the  evidence"  argument  on   this  appeal  is  confined  to            conclusory assertions.  No  less than seven persons testified            from  personal  knowledge  that  Innamorati  was  engaged  in            cocaine  and marijuana  dealing, including  among others  his            partners  (Callahan and  Fitzgerald),  his companion  (Pamela                                         -41-                                         -41-            Bufton), and his  lieutenant and record-keeper  (Tulowiecki).            Drugs and  money were  confided by Innamorati  to his  friend            James Casasanto for safe-keeping when the authorities  closed            in  on  the  ring;  and drugs,  weapons,  paraphernalia,  and            records were found in the Edgewater apartment that Tulowiecki            maintained at Innamorati's behest.                   In fact,  the case against Innamorati--who  stood at the            center  of   the  ring's  spider  web--was   a  composite  of            individual  cases against other  ring members,  reinforced by            additional  evidence against  Innamorati.   All of  the other            ring members  on this  appeal played smaller  parts but  were            convicted  on the  conspiracy charge  by the  jury.   Most of            these  persons were  not  directly  implicated by  Thompson's            grand jury testimony or the testimony was at most duplicative            as to them.   It defies belief that the  jury, faced with the            aggregate   of  evidence   against  Innamorati,   would  have            acquitted him of conspiracy if  the grand jury testimony  had            been deleted from the record.                 The  remaining convictions  against Innamorati  stand on            the  same  footing.    To  establish  a  continuing  criminal            enterprise under  21 U.S.C.    848, the government  needed to            show only  that Innamorati  committed a continuing  series of            violations of the federal narcotics  laws and that he managed            or  organized five or more individuals.  See United States v.                                                     ___ _____________            David,  940  F.2d at  732.    Without considering  Thompson's            _____                                         -42-                                         -42-            testimony, the evidence showed continuing violations and that            more  than five persons acted at Innamorati's direction.  The            individual  possession  counts  against Innamorati  were  not            significantly bolstered  by the  Thompson  testimony and  the            weapons count--which Thompson corroborates--was  supported by            ample  and  untainted  evidence  from other  witnesses.    We            conclude that the grand jury testimony was, as to Innamorati,            harmless beyond a reasonable doubt.                 Turning  to Boisoneau,  Thompson's grand  jury testimony            contains  only two references to him.  Near the conclusion of            his  testimony,  Thompson  identified  Boisoneau  as  one  of            several  "customers of  Innamorati," and  stated that  he was            present at  times when  Innamorati supplied cocaine  to these            customers.    A short  time  later,  Thompson testified  that            Boisoneau and  the other  "customers" that he  had identified            "were  just weekend users," as  opposed to distributors.  Id.                                                                      __            at  114.    These  two  statements  were  harmless  beyond  a            reasonable   doubt  in  light  of  the  abundant  independent            evidence of  Boisoneau's cocaine use and  of his relationship            with Innamorati.                 Tulowiecki   testified  that   Boisoneau   was  one   of            Innamorati's  customers;  that   Tulowiecki  had   personally            delivered  cocaine to Boisoneau;  that Boisoneau was assigned            beeper number 004 in Innamorati's communications network; and            that  Boisoneau visited  Tulowiecki in  prison and  relayed a                                         -43-                                         -43-            message from Innamorati regarding the  importance of "keeping            [Tulowiecki's] mouth  shut."   Records kept by  Tulowiecki of            Innamorati's  drug sales  showed  that Boisoneau  purchased a            total  of  19 grams  of  cocaine between  September  1987 and            January 1988.   Other  witnesses, such  as Pamela  Bufton and            James  Casasanto,  also   provided  incriminating   evidence.            Bufton, for example,  testified that Boisoneau had aided in a            delivery of cocaine to Innamorati.                 It is  fair to  say that,  as  to Boisoneau,  Thompson's            testimony ("just  [a] weekend user[]")  was almost favorable.            That Boisoneau was a customer no one could fairly doubt.  The            additional  detail that  made a  conspiracy  charge plausible            came  almost  entirely from  others  whom the  jury  chose to            believe.                   Finally,  as to Grady, we have  scoured the thirty pages            of Thompson's grand jury  testimony and are unable to  find a            single  reference  to Grady.   Grady  in  his brief  does not            suggest  any way in which  he was directly  prejudiced by the            admission of this evidence.   We have no  trouble, therefore,            concluding that the admission of the grand jury testimony was            harmless as to Grady.                                         V.  VARIANCE                 Boisoneau argues  that  a "variance"  between the  facts            alleged  in the  indictment  and the  facts adduced  at trial            prejudiced  his ability  to defend  the charges  against him.                                         -44-                                         -44-            Although he uses the language of variance, Boisoneau's entire            argument  is devoted  to the  contention that  the government            introduced  evidence at  trial  in addition  to the  evidence                                            __ ________  __            listed as overt acts  in the indictment and presented  to the            grand jury.                 The indictment sets forth 44 paragraphs of overt acts in            support  of the  alleged  conspiracy.   Paragraph 36  alleges            that,  between  May  1,  1987,  and  early  1988,  Tulowiecki            distributed  multi-ounce quantities of  cocaine per  month to            several buyers,  including Boisoneau.   Paragraph 37  alleges            that Tulowiecki's  records show  that  Boisoneau purchased  a            total of 12 grams of cocaine between September 27 and October            23,  1987.   Boisoneau does not  contend that  the government            failed  to prove  these allegations  at trial.   Instead,  he            argues that he was charged only with these acts, and that the                                       ____            government   "varied"   from  the   indictment   by  offering            additional evidence, such as testimony that Boisoneau  placed            cocaine in the trunk of a car that was to be  driven to Maine            where Innamorati  was staying,  and testimony that  Boisoneau            introduced  Tulowiecki  to  two  individuals  who  wanted  to            purchase cocaine.                 Boisoneau misapprehends the  law.   The government  need            not  recite all of its evidence  in the indictment, nor is it            limited  at trial to the overt acts listed in the indictment.            E.g.,  United States v. Ellender, 947 F.2d 748, 755 (5th Cir.            ____   _____________    ________                                         -45-                                         -45-            1991).    The indictment  charged  all  defendants, including            Boisoneau,  with  engaging  in  a  conspiracy  to  distribute            cocaine and  marijuana between 1984  and 1988.   The evidence            complained of by Boisoneau falls squarely within the scope of            that  alleged conspiracy, both  temporally and substantively.            There is no variance.6                         VI.  RESTRICTIONS ON CROSS-EXAMINATION                                  A.  Paul Callahan                 Callahan was  originally joined  in the indictment  as a            co-conspirator, but pleaded guilty  prior to trial and  was a            principal government witness at  trial.  Defendants sought to            impeach Callahan's credibility during  cross-examination with            evidence that he had engaged in a wide of variety of criminal            acts throughout his life.  The jury learned from the evidence            that Callahan  had  worked  as  a safecracker,  that  he  was            convicted for a  dozen specific acts of safecracking, that he            was a bookmaker, a bank robber, a burglar, a drug dealer, and            a  perjurer, and that he  spent much of  his adult life--more            than  sixteen  years--in  prison.   But  the  court  excluded            evidence relating to Callahan's participation in disposing of                                            ____________________                 6In discussing  the  supposed variance,  Boisoneau  also            alleges that  the government  failed  to produce  exculpatory            evidence  and  questions the  district  court's  denial of  a            motion  for a  bill of  particulars.   No effort  is made  to            develop these issues,  however, and we  do not address  them.            Zannino, 895  F.2d at  17.   For the same  reason, we  do not            _______            discuss Innamorati's  brief and conclusory  claim of improper            variance.                                         -46-                                         -46-            the  bodies of  two homicide  victims in  the 1960's,  and to            another  incident  in  1970  in  which  Callahan  provided  a            silencer to another individual who later used the silencer in            a shooting.   Innamorati,  Thompson, Grady, DeMarco  Sr., and            DeMarco Jr.  argue that this ruling  improperly limited their            right of cross-examination and their Sixth Amendment right to            confront witnesses against them.                 The trial judge apparently concluded that the references            to the homicides and silencer,  events 20 to 30 years in  the            past, were  of limited importance in  impeaching Callahan and            created  a risk of prejudice that outweighed any benefit from            the evidence.   The use  of such ancient  evidence merely  to            show bad character for veracity is doubtful, cf. Fed R. Evid.                                                         __            609(b)(10-year-old felonies presumptively  excluded), and  in            this  case  the  excluded   evidence  was  weak  and  largely            cumulative  so  far as  it  cast  an  unflattering  light  on            Callahan's character  for veracity.   Judgments of  this kind            are  very much  within  the trial  court's  discretion.   See                                                                      ___            United States v.  Garcia-Rosa, 876  F.2d 209,  237 (1st  Cir.            _____________     ___________            1989), cert. denied, 493 U.S. 1030, vacated on other grounds,                   ____________                 _______ __ _____ _______            498  U.S. 954  (1990).   We  see  no abuse  in  excluding the            evidence for this use.                 There is a somewhat more substantial use that might have            been  made of the evidence, namely,  to suggest that Callahan            could still  be  prosecuted  for  involvement  in  homicides,                                         -47-                                         -47-            giving  the government some hold over  him.  But there was no            indication when the questions were sought to be asked in this            case  that  the  applicable  statute  of  limitations   still            permitted  prosecution  or,  even  if it  did,  that  federal            authorities controlled the decision as to future prosecution.             It is not even clear that the prior bad acts were offered to            show that Callahan was subject to government pressure or that            this objective was squarely presented to the district judge.                 In  sum,  we  do not  think  that  cross  examination of            Callahan  was unreasonably  restricted.   Similarly,  since a            reasonable  opportunity  to  test  Callahan's   veracity  and            motives  was   offered,  no  Confrontation  Clause  issue  is            presented.     "Once  the  defendant  has   been  afforded  a            reasonable opportunity" for such an inquiry, "the trial judge            retains broad  discretion in determining the  scope or extent            of cross examination."  Garcia-Rosa, 876 F.2d at 237.                                      ___________                                  B.  Sean McDonough                 Thompson  challenges  the district  court's restrictions            upon his cross-examination of  DEA agent Sean McDonough.   At            trial, McDonough  testified that the government  had lost the            only  copy  of  a  "corrected statement"  that  Thompson  had            provided  to  the  DEA   and  that,  according  to  Thompson,            contained material exculpatory evidence.  This  statement may            have  been  in  McDonough's  custody  at  the  time   it  was            misplaced.    On cross-examination  of  McDonough, Thompson's                                         -48-                                         -48-            counsel  sought to show that,  in a prior  unrelated case, 86            seconds  mysteriously had been  erased from an  audio tape in            McDonough's  custody.     The  trial   court  sustained   the            government's objection to this line of inquiry.                  The intent of Thompson's  counsel in inquiring about the            erased  tape  was  to  suggest  to  the  jury  that  in  both            instances--the  missing  86  seconds and  the  misplaced  DEA            statement--Agent  McDonough  had  deliberately  concealed  or            destroyed  material evidence.   Counsel  did not  proffer any            proof that the missing portion of the tape had been linked to            misconduct by McDonough,  nor was there any showing  that the            corrected  statement  in  this  case  had  been  deliberately            misplaced.    Absent  a  foundation  for  this  inquiry,  the            district  court was  justified  under Fed.  R.  Evid. 403  in            forbidding the question.              VII.  QUASHING OF SUBPOENAS OF SPRINGFIELD POLICE OFFICERS                 During direct examination, government witness Scott gave            the following account of  an incident that allegedly occurred            during his cooperation with  the DEA.  On November  27, 1987,            prior  to   Callahan's  agreement   to  cooperate   with  the            government,  two  DEA  agents   wired  Scott  with  a  hidden            recording device and brought him to  a bar to meet and record            a conversation with Callahan.   After the meeting, the agents            agreed  to allow  Scott  to stop  by  his girlfriend's  house            before returning to  DEA headquarters.   Scott went into  the                                         -49-                                         -49-            house--leaving the agents waiting in the car outside--and was            arrested by officers of the Springfield police department who            coincidentally were raiding the house as part of an unrelated            investigation.                 According to  Scott's  testimony, one  officer  searched            Scott  and found  nothing.   Then  a second  officer searched            Scott  and purported  to find  vials of  cocaine.   Scott was            taken to  police headquarters and charged  with possession of            cocaine with intent to  distribute.  Scott testified that  he            did  not have any cocaine in his possession on this occasion,            and  would never  have carried  cocaine  in such  a situation            since he knew it was standard procedure for the DEA agents to            search him  thoroughly each time he returned  to the vehicle.            Scott testified that after  being released by the Springfield            police officers he contacted the DEA agents to complain about            the  arrest--he thought at first  that the arrest  had been a            ploy by the DEA, in conjunction with  the Springfield police,            to  get him  "under their  thumb"--and that  subsequently the            charges were dismissed and he was not prosecuted.7                 Following  this  testimony,  several  of  the defendants            sought to  subpoena the Springfield police  officers involved            in this  incident in an  attempt to  prove that Scott  did in                                            ____________________                 7The DEA agents testified  that they too were approached            by Springfield police officers while waiting in their  car in            front  of the house.   Not wanting to  expose Scott's role in            the investigation, they quickly departed.                                         -50-                                         -50-            fact possess cocaine  on that  evening.   The district  court            quashed  the subpoenas, finding  that the  proposed testimony            was inadmissible  under Fed. R. Evid.  608(b), which provides            that "[s]pecific  instances of the conduct of  a witness, for            the  purposes  of  attacking   or  supporting  the   witness'            credibility, other than conviction of a crime as  provided in            rule 609, may not be proved by extrinsic evidence."                  Defendants  argue that the  officers' proposed testimony            was not excluded by  Rule 608(b), because defendants did  not            seek merely to impeach Scott's credibility through  extrinsic            evidence of a  prior bad act but also sought  to contradict a            specific assertion  made by him during  his direct testimony,            thereby showing  that he had lied before the jury in the very            case.   Nevertheless, the  proposed contradiction  involved a            matter collateral to the main issues in this trial, since the            Springfield  incident did not in  any way involve  any of the            defendants  or the charges against them.  A court may, indeed            normally does,  preclude a party from  proving with extrinsic            evidence that a witness lied in court on a collateral matter.            See  United States  v. Tejada,  886 F.2d  483, 489  (1st Cir.            ___  _____________     ______            1989); Walker v. Firestone Tire & Rubber Co., 412 F.2d 60, 63                   ______    ___________________________            (2d  Cir. 1969).  Here,  the district court  was justified in            preventing  a major detour  into this  essentially irrelevant            episode.                                           -51-                                         -51-                 Defendants  say that the Springfield officers' testimony            was  relevant because it  showed that Scott  continued to use            ___            cocaine  even  after  his  cooperation with  the  DEA,  which            rebutted his  testimony that he contacted the  DEA because he            "knew what  we were doing  was totally and  completely wrong"            and wanted "to  make things  right."  But  Scott admitted  on            cross-examination that he used cocaine long after he began to            cooperate  with the DEA, in fact up  until a couple of months            prior to the  trial.   Thus, the Springfield  episode was  at            best cumulative evidence, and given the diversion involved to            procure it,  properly excluded as duplicative  on this issue.            Any  claim by  Scott  as to  the  purity  of his  motive  was            undoubtedly  discounted  by  the jury  since  Scott  received            $250,000 from the government, as well as other benefits.                     VIII.  BELATED PRODUCTION OF DEA NOTES, AND                            TESTIMONY OF DEA AGENT O'BRIEN                  Edward O'Brien was a  DEA agent who was involved  in the            early investigation  of this case, but  subsequently left the            DEA  under  some sort  of  cloud;  the circumstances  of  his            departure  from  the  agency  are  unclear.    Early  in  the            proceedings,  the court  granted  the government's  motion to            exclude any reference to O'Brien at trial, stating:  "I don't            want  him  coming  in  and the  government  being  prejudiced            against [sic] because they  had an agent who turned  out bad.            So we will kick that out."                                           -52-                                         -52-                 On  the fifth  day of  trial, after  the court  made its            initial decision to exclude O'Brien, the  government produced            to defendants notes made by  DEA Agents McDonough and O'Brien            during their  initial debriefing of Scott.   Contained within            these documents  was a  notation that arguably  reads "driver            for Fitzgerald = Wall."   Grady argued that the  notes tended            to exculpate him,  since he  was accused of  being the  truck            driver for the  conspiracy.   His theory was  that the  notes            indicated that  the truck  driver was actually  an individual            named  Wally  Barrett,  whose  name  had  surfaced  on  other            occasions during the trial.                 Grady questioned  Agent McDonough about the notation but            McDonough testified that he was not present during the entire            debriefing,  that he  believed this  particular notation  was            made  by Agent O'Brien, and that  he (McDonough) knew nothing            about it.  Grady then asked the court either for dismissal or            a mistrial based on the belated disclosure of the exculpatory            evidence  or,  alternatively, for  permission  to call  Agent            O'Brien in light of these new developments.  The court denied            both  of  these requests.    Grady  argues,  first, that  the            belated  disclosure  of  the  DEA  notes  violated  Brady  v.                                                                _____            Maryland, 373 U.S. 83 (1963), and deprived him of fair trial;            ________            and  second,  that the  court's  exclusion  of Agent  O'Brien            further compounded this violation.                                          -53-                                         -53-                 We   agree  that   the   "Wall"   notation   constituted            exculpatory  evidence  within  the  meaning  of  Brady.    It                                                             _____            provided  Grady  with  a  basis  for  arguing,  or  at  least            developing evidence  to show, that "Wally" and  not Grady was            the truck driver.   However, in cases  of belated disclosure,            as  opposed   to  outright  non-disclosure,   of  exculpatory            evidence,  "the  critical  inquiry  is  .  .  .  whether  the            tardiness  prevented  defense  counsel  from   employing  the            material to good effect."   United States v. Devin,  918 F.2d                                        _____________   ______            280,  290 (1st Cir. 1990).   Here, the  notation was produced            early in the trial, well before the start of defendants' case            (indeed, prior to cross-examination of the government's first            witness).   We do not  believe that Grady  was prevented from            making good use of the information or otherwise prejudiced by            the delay.8                   Although Grady  argues that  he was prejudiced  by being            deprived  of  the  opportunity  to  investigate  the   "Wall"            reference  prior to trial, he never asked the trial court for            a  continuance to allow him to investigate the reference.  We            have  held it  "incumbent  upon a  party  faced with  such  a            situation to  ask explicitly  that the  court grant  the time                                            ____________________                 8There is  no indication that the  notation was withheld            in  bad  faith  or  deliberately suppressed.    The  disputed            notation consists of  one line in a  voluminous collection of            notes; the notation  itself is difficult  to decipher and  is            subject to different readings.   Its exculpatory nature--even            assuming  defendants'  reading  is  the  correct  one--is not            immediately apparent.                                         -54-                                         -54-            needed to regroup, or waive the point . . . ."  United States                                                            _____________            v.  Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied,                ______________                              ____________            493  U.S. 862 (1989).   Nor has Grady  described any specific            avenue of investigation that would have been pursued had  the            notation been  disclosed earlier.   Accordingly, we  conclude            that the  belated disclosure of  the "Wall" notation  did not            prejudice Grady and does not entitle him to a new trial.                     Grady  contends that at  the very  least he  should have            been permitted to call Agent O'Brien to the stand to question            him  about  the  notation.    The  government's   unsupported            response that  O'Brien "likely  had little to  add concerning            the  notes of  the Jeffrey  Scott debriefing"  is not  at all            comforting.   What O'Brien might have added is that Scott did            say  that   the  driver   referred  to  was   Wally  Barrett,            information  that  would  be  helpful  to  Grady  if it  were                                                              __            admissible for its  truth.  But Scott's statements to O'Brien            during the debriefing would have been inadmissible hearsay if            offered for their truth  (as opposed to impeachment).   Thus,            the  exclusion  of O'Brien  did not  prejudice Grady  in this            respect.                 The  only apparent  use that  Grady could  have made  at            trial  of  the "Wall"  notation  would have  been  to impeach            Jeffrey Scott's testimony.   Scott testified that  he did not            know the name of Innamorati's driver; Grady could  have asked            him on cross-examination whether  he recalled telling the DEA                                         -55-                                         -55-            that  the  driver's name  was Wally.    Grady sought  to call            O'Brien  to the stand to question him about the notation, but            _______            he  never  sought  to  recall   Scott  for  further  cross  -            examination  once the notes were produced.  If Scott had been            asked about the  "Wall" statement and denied  making it, then            Grady might have been  entitled to call O'Brien in  an effort            to prove that  Scott in fact made the  statement.  Absent any            effort by  Grady  to cross-examine  Scott  on the  point,  we            cannot  see  how  the  court's  refusal  to  involve  O'Brien            prejudiced Grady.9                               IX.  PAYMENTS TO WITNESS                 Scott,  a key  witness  for  the  prosecution,  received            $250,000  from   the  government  prior  to   trial  for  his            cooperation  as   well  as  immunity  from   prosecution  and            enrollment in  the federal  witness protection program.   The            $250,000  payment was  made pursuant  to a  DEA  program that            awards  twenty  percent  of  the value  of  seized  assets to            parties  who are  instrumental in  successful investigations.                                            ____________________                 9Grady also complains of  the district court's denial of            his motion for a mistrial based on a violation of the court's            sequestration  order.    The   violation  occurred  when  the            government  permitted  Fitzgerald  and Callahan  to  converse            together   in  the   prosecutor's  office   after  Callahan's            testimony but prior to Fitzgerald's.  The district court held            a voir dire, rebuked the government, but refused to declare a            mistrial.   Briefly addressing this issue,  Grady provides no            persuasive explanation for his  claim of prejudice and  we do            not  think that  the  trial court  abused  its discretion  in            denying  the mistrial motion.  See United States v. Rossetti,                                           ___ _________________________            768 F.2d 12, 16 (1st Cir. 1985).                                         -56-                                         -56-            Gilberti argues that these benefits conferred upon Scott were            so  likely  to  induce   perjury  that  they  infringed  upon            defendants'  right  to a  fair trial,  and  he points  to our            dictum in United  States v.  Dailey, 759 F.2d  192 (1st  Cir.                      ______________     ______            1985),  that  "we  can think  of  no  instance  in which  the            government would  be justified  in making a  promised benefit            contingent  upon  the return  of  an indictment  or  a guilty            verdict."  Id. at 210 (footnote omitted).                       __                 Subsequently in  United States  v. Cresta, 825  F.2d 538                                  _____________     ______            (1st Cir. 1987),  cert. denied,  486 U.S.  1042 (1988),  this                              ____________            court upheld  an agreement much like  that in this case.   In            Cresta  a government  witness was  promised $50,000  from the            ______            sale  of a vessel that was to  be seized and forfeited to the            government as a result of  the witness's cooperation.  Cresta                                                                   ______            relied  upon the facts that  the terms of  the agreement were            disclosed   to  defense  counsel   and  explored   on  cross-            examination;  there  was  substantial  corroboration  of  the            witness's  testimony; and  the court  admonished the  jury to            weigh carefully the credibility of accomplice testimony.  See                                                                      ___            id. at 546.10            __                 Those same facts are present in this case.  The terms of            the   agreement   were  not   concealed;  to   the  contrary,                                            ____________________                 10See also United States  v. Wilson, 904 F.2d  656 (11th                   ________ _____________     ______            Cir.  1990)  (testimony  by government  witnesses  who  could            potentially recover up to $11 million held not to violate due            process), cert. denied, 112 S. Ct. 250 (1991).                      ____________                                         -57-                                         -57-            defendants'   counsel  questioned  Scott  closely  about  his            arrangements  with the  government, and  argued at  length in            closing that Scott should be disbelieved as a result of them.             There was evidence to  corroborate virtually every aspect of            Scott's  testimony.   And the  court instructed  the jury  to            consider  carefully any  inducements or  advantages that  any            witnesses  had received.   Finally,  the $250,000  payment to            Scott was  completed  several days  prior to  trial, and  the            payment was  thus not directly  dependent upon the  result of            Scott's testimony in court.                 Clearly  such  immense  payments  are  troubling.    The            payments  may be  for  "information," rather  than for  later            testimony or convictions,  but the steps  are linked and  the            inducement  to testify  in accordance  with prior  reports is            obvious.   Yet  defendants are  regularly convicted  based on            testimony secured  by the prosecutor's decision  to reduce or            dismiss charges  against testifying co-defendants.   In fact,            Congress has enacted statutes  that directly reward those who            disclose  misconduct   and  who  doubtless  testify  for  the                                         -58-                                         -58-            government in the  ensuing trials.11   In all events,  Cresta                                                                   ______            is the governing law in this circuit and controls this case.                           X.  COMMENTS BY THE PROSECUTION                  Boisoneau alleges  that he  was  unfairly prejudiced  by            improper  comments made  by  the  prosecutor  during  closing            argument.  First, Boisoneau  challenges the following passage            from  the prosecutor's rebuttal argument  at the close of the            case,  in   which  the  prosecutor  sought   to  justify  the            government's $250,000  payment to  Scott in exchange  for his            cooperation:                 What did the  government know before  Jeffrey Scott                 walked  into  the [DEA]  in  contrast  to what  the                 government  knew  as  a result  of  Jeffrey Scott's                 cooperation?   And even on pure  dollars and cents,                 consider  the amount  of forfeitures,  the seizures                 that it led to.  But go beyond that, because if you                 do a  cost benefit analysis you  must also consider                 the cost  that was saved to  society by dismantling                 an    operation like  the  one  you've heard  about                 here. . . .             Boisoneau made  no objection  to these remarks  during trial,            and our review is therefore limited to plain error.   Fed. R.            Crim. P. 52(b).                                            ____________________                 11"[R]ewards  for  assistance   are  essential  to   the            business of detecting and punishing crime."  United States v.                                                         _____________            Bringham, 977 F.2d  317, 318 (7th Cir. 1992).   See, e.g., 31            ________                                        ___  ____            U.S.C.    3730(d) (providing for an award of up to 10 percent            of  the proceeds of suit to any individual whose provision of            information leads to government's recovery of funds under the            False  Claims  Act,  31 U.S.C.     3729);  26  U.S.C.    7623            (providing  for Secretary  of  Treasury to  make awards  "for            detecting  and  bringing  to  punishment  persons  guilty  of            violating the internal revenue laws").                                         -59-                                         -59-                 Boisoneau now argues that the prosecutor's statement was            an improper allusion to facts not in the evidence, namely, to            some  actual   cost-benefit  analysis  commissioned   by  the            government  showing the  advantages and disadvantages  of the            payment to Scott.   These remarks do  not suggest to  us that            some actual  cost-benefit analysis was undertaken:   they are            nothing more  than an argument, using  the latest fashionable            jargon, that  the  payment was  reasonable  in light  of  the            results obtained.  The  prosecutor's own language--"if you do                                                                   ___            a cost benefit analysis"--shows that he was merely suggesting            a way for the jury to look at the payment.                 Boisoneau also  objects to the prosecutor's statement in            closing  that  the  trial  judge alone  would  determine  the            sentences for each of the cooperating witnesses, and that the            jury  therefore  should not  think  that  the witnesses  were            getting  "a walk."   Boisoneau  points out  that in  fact the            government had dismissed, or  elected not to assert, numerous            criminal  charges against  many of the  cooperating witnesses            and also had promised to make motions for downward departures            with  respect to  certain  witnesses.   Therefore,  Boisoneau            argues,  the  government in  fact  had  far more  significant            influence  on  the  witnesses'  ultimate sentences  than  the            prosecutor's disclaimers would suggest.                 We agree that the  prosecutor's statement told only half            the story, but it is usually the function of opposing counsel                                         -60-                                         -60-            to remind the jury of the other half.   Indeed, witnesses are            normally cross-examined as to just such inducements.  Perhaps            in some instances a prosecutor's incomplete version of events            might  involve   so  much   distortion   that  a   cautionary            instruction  by the trial judge  would be required.   In this            instance,  no  objection  was  made  at  the  trial  nor  any            instruction sought, and there is no "plain error" here in the            court's failure to give  such an instruction sua sponte.   We                                                         __________            have   similarly  examined   Boisoneau's   other  claims   of            prejudicial  error arising  out  of the  prosecutor's closing            arguments and find them unpersuasive.                 Nor do  we see any  merit in Thompson's  suggestion that            the   prosecutor's   closing   argument  contained   improper            "vouching" for the government's  witnesses.  The line between            the  legitimate  argument  that  a   witness's  testimony  is            credible and improper "vouching"  is often a hazy one,  to be            policed by the trial court in the first instance.  See United                                                               ___ ______            States  v. Martin,  815  F.2d 818,  822-23  (1st Cir.),  cert            ______     ______                                        ____            denied, 484 U.S. 825  (1987).  Here, at worst  the challenged            ______            remarks  --  for  example, the  prosecutor's  statement  that            "[t]he  testimony  of the  witnesses  in  this case  is  well            corroborated  . .  . [a]nd  as a  result, you  know that  the            witness's  testimony  is true"  --  fell  in the  grey  area.            Thompson  did not  object  to the  remarks  at trial  when  a                                         -61-                                         -61-            curative instruction might have been given, and we think that            is the end of the matter.                          XI.  FAILURE TO PRESERVE EVIDENCE                 Thompson   argues  that  his  due  process  rights  were            violated by  the government's failure to preserve exculpatory            evidence,  specifically  a  DEA-6   form  prepared  by  Agent            McDonough summarizing an interview with Thompson.  It appears            that McDonough  interviewed Thompson  on March 10,  1988, and            then memorialized the interview  on the DEA-6 form.   On June            22,  1988, just  prior  to Thompson's  appearance before  the            grand jury,  McDonough again met with  Thompson, and Thompson            made  certain handwritten  corrections on  the form  and then            signed it.  In  the grand jury, the government  attorney read            each  statement on the DEA-6 form to Thompson, and then asked            Thompson to confirm the truth of the statement.  Thompson did            so, making some  modifications or corrections.  The form with            Thompson's handwritten  corrections was lost  after the grand            jury appearance.                 Thompson filed a motion to dismiss the indictment on the            ground that the DEA-6 form  as corrected by him prior to  the            grand jury appearance was  material exculpatory evidence, and            that  the  government's  failure  to preserve  that  evidence            deprived him  of a fair trial.  This motion was denied by the            magistrate judge  to whom it  was referred.   The  magistrate            judge's report advised the parties that pursuant to the local                                         -62-                                         -62-            rules the failure  to file written  objections to the  report            within ten  days "shall preclude further  appellate review by            the Court of  Appeals."   Thompson failed to  file a  written            objection.   The issue, therefore, was waived.  See Thomas v.                                                            ___ ______            Arn, 474  U.S. 140,  155 (1985);  United States  v. Valencia-            ___                               _____________     _________            Copete, 792 F.2d 4, 6 (1st Cir. 1986).            ______                 Although we  will address waived issues  where necessary            to prevent  a miscarriage  of justice, we  certainly perceive            none  here.    The   corrected  DEA-6  form  was  essentially            preserved by  the grand  jury testimony itself,  during which            the government attorney  went through the  form line-by-line.            The transcript of this  grand jury testimony was read  to the            jury at trial.                                 XII.  JURY INSTRUCTIONS                 Several  defendants--Thompson,   Letters,  Litterio  and            Boisoneau--challenge  various aspects of the district court's            charge to the jury.                   First, Thompson  argues that the court  erred by denying            his request for an instruction stating that the motor vehicle            licenses and registrations were public documents.  As already            noted, one of the crucial pieces of evidence linking Thompson            to the conspiracy was his provision to Innamorati of registry            checks on the license plates  of vehicles of which Innamorati            was  suspicious.  Thompson asked  that the jury  be told that            "as a matter of law, motor vehicle licenses and registrations                                         -63-                                         -63-            are public  documents, and disclosure of  their contents does            not, in itself, violate the law."                 The only  case on the  point cited in  Thompson's brief,            Doe   v. Registrar of Motor Vehicles,  26 Mass. App. Ct. 415,            ____     ___________________________            528 N.E.2d  880 (1988),  actually stands for  the proposition            that the motor vehicle  registry is not prima facie  a public                                                ___ _____ _____            record.  In any event, the government did not charge Thompson            with  stealing government secrets;  it was  enough for  it to            show that  Thompson's behavior in facilitating  access to the            registry  was part of the conspiracy.  There is no indication            that the instructions  as a whole misled the jury  as to what            was needed to convict on the conspiracy count.                 Second, Thompson challenges the district court's refusal            to instruct  that "mere proof of  a buyer-seller relationship            is  not enough  to convict  one as  a co-conspirator  on drug            conspiracy  charges."    This   instruction  is  at  best  an            incomplete statement of the law of conspiracy.   Depending on            the  surrounding  circumstances, a  buyer-seller relationship            could, in some cases, be the very core of a drug distribution            conspiracy.   See  Moran,  894 F.2d  at  1302-04.   For  this                          ___  _____            reason,   courts  that   have  approved   the  "buyer-seller"            instruction  have restricted  its use to  cases in  which the            evidence showed only  a single  or a very  limited number  of            sales for personal  use.   See United States  v. Canino,  949                                       ___ _____________     ______            F.2d 928, 941 (7th Cir. 1991), cert. denied, 112 S. Ct. 1701,                                           ____  ______                                         -64-                                         -64-            1940  (1992); United States v. Medina, 944 F.2d 60, 65-66 (2d                          _____________    ______            Cir. 1991), cert. denied, 112 S. Ct. 1508 (1992).                          ____  ______                 In  this instance,  the  gist of  the conspiracy  charge            against Thompson was not  his drug purchases as such  but his            other  affirmative  acts--notably, procuring  cellular phones            and performing license plate checks--that the government said            were knowingly designed to assist Innamorati's extensive drug            ring operations.   We doubt whether  the instruction Thompson            sought  is well  tailored  even  for  a  case  in  which  the            conspiracy  charge  focuses  on  multiple  purchases  and the            "defense"  is personal  use.   The  instruction is  even less            appropriate for the case actually presented against Thompson.                 Finally, Thompson complains in  a cursory fashion of the            trial  court's responses  to several  questions posed  by the            jury  during  its  deliberations.     For  example,  although            Thompson   argues   that  a   supplementary   instruction  on            conspiracy was a "misstatement"  of law, he fails to  tell us            how  the statement  was inaccurate.   We find  no prejudicial            error here, nor with respect to  each of Thompson's remaining            objections to the judge's handling of the jury's inquiries.                 Next,  Letters   says  that  the   court's  supplemental            instruction on  the definition  of "aiding and  abetting," in            response   to  a   jury  inquiry   on  the   fourth  day   of            deliberations, failed to tell  the jury that some affirmative            participation on the  part of the  defendant is required  for                                         -65-                                         -65-            conviction.    Letters failed  to  object  to the  challenged            language  at trial.   Once  again confining  our review  to a            search  for plain  error,  we find  none.   The  supplemental            instruction adequately  informed the  jury  of the  requisite            level  of participation  required to  convict for  aiding and            abetting.  Letters' underlying concern--that the jury be told            that merely purchasing  cocaine for personal use does not aid            and abet the seller's  possession with intent to distribute--            was specifically  addressed by the court  in the supplemental            instruction immediately after the portion Letters challenges.                 Finally, Litterio  and  Boisoneau  claim  as  error  the            district court's  refusal to give their requested "accomplice            testimony" instruction.  From reading their briefs, one might            get the impression that no "accomplice testimony" instruction            was  provided.   In fact,  the court  admonished the  jury at            length  on the  need  to weigh  carefully the  uncorroborated            testimony  of an  accomplice and  to consider  the advantages            that  such  witnesses might  receive  in  exchange for  their            testimony.    The  court   is  not  required  to   track  the            defendants'  requested language so long as the jury is fairly            informed of the  pertinent law, United States  v. Newton, 891                                            _____________     ______            F.2d 944, 951 (1st Cir. 1989), as it was in this instance.                XIII.  ADMISSION OF "DRUG LEDGER" AND TELEPHONE SUMMARIES                  Thompson devotes a half page in his brief to an argument            that  the  court  abused   its  discretion  by  allowing  the                                         -66-                                         -66-            government  to  introduce two  items  of  evidence: first,  a            "ledger" and related evidence summarizing certain of the drug            sales made  by Tulowiecki; and second,  evidence of telephone            calls between various  telephone numbers associated  with the            alleged  conspiracy,  as  well  as  summary  charts  of  that            information.                   The drug  "ledger" was  a book maintained  by Tulowiecki            for about a month  in the fall of  1987, in which  Tulowiecki            recorded  cocaine  sales,  showing  the  purchaser  (by  code            number), the amount  of narcotics bought,  the price and  the            date.    When not  using  the  ledger, Tulowiecki  frequently            recorded cocaine sales on  slips of paper, a number  of which            were also introduced into  evidence.  In addition, Tulowiecki            prepared  for use at trial a summary of the transactions that            were  recorded in  the  ledger and  on  the slips  of  paper.            Defendants did not object at trial to the introduction of the            ledger and  original  papers, but  they did  object when  the            government   sought   to   introduce  Tulowiecki's   summary.            Thompson's brief  does not identify any  basis for concluding            that the admission of these materials was error.                 The  telephone evidence  consisted of  frequency reports            showing the number of calls between various telephone numbers            of persons and businesses  associated with the conspiracy, as            well  as charts  summarizing that  information.   Many courts            have  admitted this  type  of evidence  in conspiracy  cases.                                         -67-                                         -67-            E.g.,  United States v. Porter,  821 F.2d 968,  975 (4th Cir.            ____   _____________    ______            1987),  cert. denied, 485  U.S. 934 (1988);  United States v.                    ____  ______                         _____________            Drougas,  748 F.2d 8, 25-26 (1st Cir. 1984).  Thompson argues            _______            that  the telephone  records  did not  identify the  specific            persons  who made  or  received the  calls;  but this  merely            limits and does not eliminate their relevance.  Thompson also            says  that "testimony  and exhibits  made it  clear  that the            compilation of numbers  [in the  government's summaries]  did            not match the phone  records."  But Thompson fails  either to            specify  any respects  in  which the  summary materials  were            inaccurate or to cite us any such "testimony and exhibits."                         XIV.  "GUILT ASSUMING HYPOTHETICALS"                 Thompson  argues that he is  entitled to a  new trial on            account  of the  prosecutor's use,  in Thompson's  phrase, of            "guilt assuming hypotheticals" during redirect examination of            Lancaster  Police   Chief   Eric  Mcavene.     During   cross            examination   of  Mcavene,   Thompson's  counsel   sought  to            establish that it was  a common practice for police  officers            to  run  registry checks  on  license plates,  and  that such            checks  were  done  for   many  different  reasons  including            requests  from the  public.   Mcavene admitted  that registry            checks  were conducted for a  variety of reasons  and that he            was not consulted in every instance.                 In  response, government  counsel  sought to  dispel the            notion  that  registry information  was  freely disseminated.                                         -68-                                         -68-            Pursuing that  theme, the  prosecutor asked Mcavene,  "[I]f a            known drug dealer had  asked you for a Registry  check, would            you do  it for him?"   Before  the witness could  answer, the            court  upon objection  ruled (mistakenly) that  this question            had already been asked.   The prosecutor acquiesced and moved            on to his next inquiry:  "[I]f William Thompson had asked you            for the Registry check  would you have  done it?"  The  court            sustained Thompson's objection  to this question, struck  the            question, and denied Thompson's motion for a mistrial.                 It may be a close call whether either of these questions            was improper as an implied assertion that Thompson was a drug            dealer,  but we  need  not pursue  the issue.   Even  if both            questions were error,  they did not  conceivably have such  a            prejudicial impact as to  require reversal.  Neither question            was answered  by  the  witness,  one was  stricken  from  the            record,  and the  court  elsewhere instructed  the jury  that            statements of counsel are not  evidence.  The precise  limits            on who could obtain  registry checks was largely a  side-show            and Mcavene's attitude toward disclosure was a subject raised            by Thompson's own counsel.                             XV.  MARK LITTERIO EVIDENCE                  Litterio argues  that the court erred  by permitting the            government  to  introduce  evidence  of  a  drug  transaction            involving  Litterio's brother,  Mark Litterio,  as well  as a            statement  made by  Mark Litterio  to an  undercover officer.                                         -69-                                         -69-            Litterio was convicted under count five of the indictment for            possession of cocaine with intent to distribute.  The primary            evidence was  Tulowiecki's testimony that  Litterio purchased            four ounces  of cocaine from Innamorati in  late August 1987.            According to  Tulowiecki, Litterio  said at  the time  of the            purchase that he was buying the cocaine for his brother Mark.            To  corroborate  this   testimony,  the  government   offered            testimony from a parade of police officers  showing that Mark            Litterio  and an accomplice were involved in the sale of four            ounces of  cocaine just after James  Litterio's purchase from            Innamorati.                 Although the evidence of  the Mark Litterio  transaction            was a major detour,  the evidence was relevant to  the charge            against  Litterio in count five.  The fact that Mark Litterio            sold  four ounces of cocaine to  undercover agents just after            James  Litterio  bought  the  same  amount   from  Innamorati            strongly  corroborated  Tulowiecki's  testimony.    The  only            "prejudice" was  the potential for distracting  the jury with            details of an uncharged  crime, and this judgment  is largely            within  the discretion of the trial judge.  See United States                                                        ___ _____________            v. Bonneau, 970 F.2d 929, 935 (1st Cir. 1992) ("only rarely--               _______            and  in extraordinarily compelling circumstances" should this            court  "reverse  a  district  court's   on-the-spot  judgment            concerning  the  relative  weighing  of  probative  value and            unfair effect").                                         -70-                                         -70-                 Litterio  also  challenges  as  hearsay  the  admission,            through  the testimony of one of the officers involved in the            Mark  Litterio undercover  investigation, of  Mark Litterio's            contemporaneous  statement that  he was doing  the four-ounce            cocaine  deal  with  his brother  "Mickey"  (James Litterio's            nickname).   This statement, however, was  admissible against            Litterio  under Fed.  R. Evid.  801(d)(2)(E), which  excludes            from   the  definition   of   hearsay  "a   statement  by   a            coconspirator  of  a  party  during  the  course  of  and  in            furtherance of the conspiracy."   Litterio objects that there            is nothing  to show  that Mark  himself was  a member  of the            Innamorati ring.  But based  on this single transaction James            and Mark  Litterio were evidently engaged in  a conspiracy in            which  James   supplied,  and  Mark  sold,   four  ounces  of            cocaine.12    Mark  Litterio's  statement to  the  undercover            officers  was in  furtherance  of it.    Whether this  was  a            separate  conspiracy   or  part  of   the  larger  Innamorati            conspiracy makes no difference so far as the admissibility of            the statement against James Litterio is concerned.                          XVI.  REFERENCES TO "THE DEMARCOS"                                            ____________________                 12Mark  Litterio's statement itself may be considered in            determining  admissibility, see  Bourjaily v.  United States,                                        ___  _________     _____________            483 U.S. at 178-79,  and in addition there was  evidence that            James Litterio stated to  Tulowiecki that he (James Litterio)            needed  the four ounces for  his brother Mark,  and that Mark            Litterio was  followed to James  Litterio's house immediately            after James Litterio received the drugs from Tulowiecki.                                         -71-                                         -71-                 Robert DeMarco Jr. argues that he was deprived of a fair            trial  by repeated references to "the DeMarcos."  He contends            that  these   collective  references  deprived   him  of   an            individual  adjudication of  guilt or innocence,  and instead            grouped him together with his father as a single entity.                 We have examined the record and conclude that the phrase            "the  DeMarcos" was  used as  a substitute  for  "both Robert            DeMarco Sr. and Robert  DeMarco Jr.," and that this  was made            clear  to the jury.   For  example, in  one of  the instances            cited by Demarco Jr.,  Callahan testified that he distributed            portions of  two half-kilograms of cocaine  to, among others,            "the Demarcos."   Upon counsel's objection  to the collective            reference, the  prosecutor asked  whether Robert  DeMarco Sr.            and Robert DeMarco  Jr. "were  both present" at  the time  of            this distribution, and Callahan replied, "Yes."                 A witness may testify that two persons jointly performed            a  given  act so  long as  confusion is  avoided.   Here, the            witness was merely using  the shorthand phrase "the DeMarcos"            to  refer to "both Robert DeMarco Sr. and Robert DeMarco Jr."            When counsel  objected, the  witness made clear  his meaning.            We have examined the other instances cited by DeMarco Jr. and            find them to be equally lacking in confusion or prejudice.                             XVII.  EX PARTE PROCEEDINGS                                    __ _____                 After  the trial  concluded,  the government  discovered            information  in its  possession that  related to  an incident                                         -72-                                         -72-            recounted during the trial testimony of a government witness.            Although the government believed that the information was not            Brady material,  it did not  wish to conceal  the information            _____            from  the   court  or  take  the   final  responsibility  for            appraising its importance.  At  the same time, the government            feared  that   release  of  the  information   would  pose  a            substantial danger of serious harm.                 Accordingly, the government submitted the information to            the district  court ex parte,  described the reasons  for its                                __ _____            position  and  explained  why  it  feared  disclosure.    The            district court  ruled that  the information was  not material            and  that the  government's justification  for non-disclosure            was  persuasive.    The   district  court  sealed  its  order            containing these  rulings.   At no  time during  this episode            were  defendants  or  their   counsel  made  aware  of  these            proceedings or of the court's order.                 The government's  submission  and the  district  court's            order  were forwarded  to  this  court  and  brought  to  the            attention of this panel.   This court in turn issued an order            on  November 18, 1992,  informing all defense  counsel of the            existence  of the  ex parte  proceedings.   Not surprisingly,                               __ _____            defendants have  moved for disclosure of  the information, or            at the very least a synopsis of the information  so that they            may argue  intelligently as to  its materiality and  the need            for disclosure.   Certain defendants also  argue that the  ex                                                                       __                                         -73-                                         -73-            parte procedures utilized by the district court deprived them            _____            of a fair trial.                 We sympathize  with defendants' protestations  and agree            that  the procedures  utilized in  this case  raise extremely            serious  issues.  Outside of emergencies, see Fed. R. Civ. P.                                                      ___            65(b) (temporary restraining orders), the ex parte submission                                                      __ _____            of  information from  a party  to the  court and  the court's            ruling on that information without notice to or participation            of  the opposing  party  is fundamentally  at  odds with  our            traditions  of jurisprudence,   Haller  v. Robbins,  409 F.2d                                            ______     _______            857, 859  (1st Cir. 1969), and  can be justified only  in the            most  extraordinary  circumstances.   Nevertheless,  in  rare            situations  requirements  of  confidentiality   outweigh  the            interest in adversarial litigation and permit a court to rule            on  an  issue  in  camera  without  the  participation of  an                           __  ______            interested party.                 For example, in United States v. Perkins,  926 F.2d 1271                                 _____________    _______            (1st  Cir. 1991),  the government possessed  information that            was  arguably useful  to  impeach a  government witness,  but            whose disclosure  would have jeopardized an  ongoing criminal            investigation.   The government submitted the  information to            the district  court for  an  in camera  determination of  its                                         __ ______            materiality.   The court  concluded that the  information was            not material  and  need  not  be disclosed.    After  trial--            presumably after the threat to the investigation had ceased--                                         -74-                                         -74-            the  government's ex  parte submission  was unsealed  and the                              __  _____            defendant was for the first time apprised of the information.            On appeal we upheld the court's finding of immateriality and,            implicitly, the procedure employed.                 There are  other examples.   Fed.  R. Crim.  P. 16(d)(1)            expressly  authorizes   the  court   to  deny   discovery  of            information sought  by  a  defendant based  on  an  ex  parte                                                                __  _____            showing    by    the    government    of   the    need    for            confidentiality.13    The  Classified Information  Procedures            Act,  18 U.S.C. App.    1-16, permits the ex parte submission                                                      __ _____            of  affidavits by the  government in support  of a protective            order  authorizing the  non-disclosure  of national  security            information.  See United States v. Pringle, 751 F.2d 419, 427                          ___ _____________    _______            (1st Cir. 1984).  And under  Franks v. Delaware, 438 U.S. 154                                         ______    ________            (1978),  courts often  make  an in  camera assessment  of the                                            __  ______            veracity of a confidential  government informant and the harm            from revealing his identity.  See United  States v. Southard,                                          ___ ______________    ________            700  F.2d  1, 10-11  (1st Cir.),  cert.  denied, 464  U.S. 88                                              _____________            (1983).                 The  present  case  is  unusual because  not  only  were            defendants denied  access to  the material  but they  did not            even know of its submission to the court.  We  agree that the                                            ____________________                 13See e.g., United States v.  Napue, 834 F.2d 1311, 1317                   ___ ____  _____________     _____            (7th Cir.  1987)  (approving this  procedure  in  appropriate            cases).   Rule 16(d)(1) requires  the court  to preserve  the            records of the ex parte communication for the appellate court                           __ _____            in the event of an appeal, as was done in this case.                                         -75-                                         -75-            secret  submission  to  the  court is  especially  dangerous,            depriving  the  opponent even  of  the  opportunity to  argue            generally  against the  need for  secrecy.   Yet there  is no            question here  of  convictions  based  upon  secret  evidence            furnished to the factfinder but withheld from the defendants.            What  the government did was to provide material to the court            to permit the court to determine whether under applicable law            the material needed  to be  produced to the  other side  and,            collaterally, to  determine  whether there  was a  legitimate            reason for continued secrecy in the submission.                 Each  of the three  judges on this  panel has considered            the information  in this  case bearing  on these  two issues.            Our standard in this inquiry was to resolve every  legitimate            doubt in favor of the defendants precisely because they could            not argue  the matter for  themselves.  We  nevertheless have            concluded that there was a substantial threat of serious harm            warranting  the initial  examination  by the  district  court            without  notice to  defendants;  that the  threat has  abated            sufficiently to justify notice to the  defendants now but not            the  disclosure  of  the  information itself;  and  that  the            information, whether or not technically Brady material, would                                                    _____            not  have significantly  assisted any  of the  defendants and            could not conceivably have altered any of the verdicts.                 As  for  the  government's  action  in  submitting   the            information   to  the   district  court  without   notice  to                                         -76-                                         -76-            defendants, we would expect this dangerous  course to be very            rare  indeed,  but  in this  instance  we  find  that it  was            justified  and, given  the unimportance  of the  material, it            inflicted  no prejudice on the defendants.  No doubt we could            construct a judicial rule forbidding the government, absent a            statute  or regulation,  from making  any secret  submission.            But  we think that the interests of justice are better served            by  encouraging  the government  to  let  the district  court            resolve  the Brady  issue or  like questions in  close cases.                         _____            Defendants  in  general would  not  gain from  a  regime that            encouraged the government to decide the matter itself.                                XVIII.  SENTENCING ISSUES                                   A.  Introduction                 Thompson,  DeMarco Sr., Letters,  Litterio and Boisoneau            challenge the district court's calculation of their sentences            under  the  Sentencing  Guidelines.14    Many of  defendants'            arguments concern  the court's  calculation of the  amount of            narcotics attributable  to each defendant.   It is  useful to            say a few words on the subject at the outset.                   Under the  Guidelines, the  sentence for  a drug-related            offense hinges  substantially upon the total  amount of drugs            involved in  that offense.    See U.S.S.G.    2D1.1(c)  (drug                                          ___                                            ____________________                 14The  district court  applied the  1990 version  of the            Sentencing  Guidelines  and  therefore  all  citations unless            otherwise indicated are to that version.                                         -77-                                         -77-            quantity  table).15   This determination  often turns  on the            "relevant   conduct"  provision  of   the  Guidelines,  which            provides  that  a defendant's  base  offense  level shall  be            determined on the basis of "all acts and omissions  committed            or  aided  and abetted  by the  defendant,  or for  which the            defendant  would  be  otherwise  accountable,  that  occurred            during the commission  of the offense of conviction  . . . ."            U.S.S.G.    1B1.3(a)(1).   In the case  of concerted criminal            activity, conduct "for which the defendant would be otherwise            accountable" includes  "conduct of others  in furtherance  of            the execution  of  the jointly-undertaken  criminal  activity            that  was  reasonably foreseeable  by  the  defendant."   Id.                                                                      __            comment note 1.                 Thus, "[t]he  central concept . .  . is foreseeability."            United  States v.  O'Campo,  973 F.2d  1015,  1023 (1st  Cir.            ______________     _______            1992).   This means that  each member of  a drug distribution            conspiracy  may  be  held  accountable at  sentencing  for  a            different   quantity   of   narcotics,   depending   on   the            circumstances of  each defendant's involvement.  See U.S.S.G.                                                             ___               1B1.3 comment note 1.  The foreseeability determination is                                            ____________________                 15Section  2D1.4   provides  that  if   a  defendant  is            convicted  of conspiring  to  commit an  offense involving  a            controlled substance, "the offense level shall be the same as            if  the   object  of  the  conspiracy  or  attempt  had  been            completed."  Section  2D1.1, in turn, sets  forth the offense            levels  for  the  completed  offenses  of   distribution  and            possession with intent to distribute based primarily upon the            drug quantity table.                                         -78-                                         -78-            inherently fact-bound, and   "[a] district court's finding of            the amount of drugs involved in an offense will be overturned            on appeal only upon a showing of clear error."  United States                                                            _____________            v. Tracy, 989 F.2d 1279, 1287 (1st Cir. 1993).  "[W]here more               _____            than one  reasonable inference  may be drawn  from undisputed            facts, the court's choice from among supportable alternatives            cannot be clearly erroneous."  United States v. McCarthy, 961                                           _____________    ________            F.2d 972, 978 (1st Cir. 1992).                 In this case, the  court held an evidentiary hearing  to            determine the drug quantities attributable to each defendant.            Callahan  and Tulowiecki  testified regarding the  amounts of            narcotics  distributed to  certain  of the  defendants.   The            court also  relied heavily  on detailed  pre-sentence reports            prepared  by the  probation officer.   See  Fed. R.  Crim. P.                                                   ___            32(c).   Thereafter,  the court  issued a  memorandum opinion            setting  forth  its  factual  findings  including  "how  much            controlled  substance is  attributable  to each  defendant in            order  to  establish his  base  offense  level for  Guideline            purposes."  Order of July 12, 1991 at 2.                                   B.  William Thompson                 Thompson first argues that  the Sentencing Guidelines do            not apply to him because the principal evidence against him--            the  provision  of  registry  checks  and  cellular  phones--            occurred  prior   to  November  1987,   when  the  Sentencing            Guidelines  took  effect.    Thompson waived  this  claim  by                                         -79-                                         -79-            failing  to  make  it during  the  sentencing  process.   See                                                                      ___            Figueroa, 976 F.2d  at 1462.   In any  event, the  Guidelines            ________            applied  to Thompson, because he  was a member  of an ongoing            conspiracy  that continued  past  the effective  date of  the            Guidelines  and   Thompson  did   not  withdraw  before   the            Guidelines became  effective.   See United States  v. Thomas,                                            ___ _____________     ______            895 F.2d 51, 57 (1st Cir. 1990).                 Thompson next contests  the calculation of the  quantity            of  drugs for which he is accountable.   Thompson's principal            contributions to the venture  did not lie in  particular drug            transactions  but  rather in  the  provision  of services  to            Innamorati.     Thompson   helped  Innamorati   set   up  his            communications network and ran  license plate registry checks            on prospective customers, and  Thompson knew Innamorati was a            large-scale distributor.   Innamorati himself was responsible            for the  importation  and distribution  of  approximately  16            kilograms of cocaine and 450 pounds of marijuana.                 The   pre-sentence   report   concluded  that   Thompson            purchased  small  quantities  of  cocaine  for  personal  use            amounting  to  approximately  46 grams.    Further,  Thompson            admitted before the grand  jury that he had been  aware since            1983 or  1984 that  Innamorati was distributing  cocaine, and            that  he  often  was   present  in  Innamorati's  house  when            Innamorati  possessed large  amounts  of cocaine.   Based  on            these  facts, the  probation  officer (and  later the  court)                                         -80-                                         -80-            determined that  it was reasonable to  conclude that Thompson            could have  foreseen that Innamorati was  dealing in multiple            kilograms.   Recognizing  that it  was engaged  in a  "highly            speculative  task," the  probation  officer  determined  that            Thompson  could  reasonably  have foreseen  3.2  kilograms of            cocaine, based  on the cocaine  purchased and the  cocaine he            personally saw in Innamorati's house.                 We  think the 3.2 kilogram finding is  at the low end of            the range  of figures that might reasonably have been chosen.            Thompson   knowingly   assisted   Innamorati's    drug   ring            operations, well  aware that  Innamorati was involved  in the            importation and distribution of large amounts of cocaine.  He            saw  large caches  of cocaine in  Innamorati's home  and made            purchases  for  himself,  and   the  district  court  treated            Thompson favorably by  limiting his  accountability to  these            amounts.  The  computation of what  Thompson himself saw  and            bought  is   necessarily  an   estimate  but  is   hardly  an            implausible one.  We see no error.                 Thompson  argues that  the court  wrongly  increased his            base offense level under U.S.S.G.   3B1.3, which provides for            a two-level  enhancement if "the defendant  abused a position            of  public  or  private  trust  .   .  .  in  a  manner  that            significantly  facilitated the  commission or  concealment of            the offense."  The  court based this enhancement on  the fact            that Thompson  had worked as a  Massachusetts Registry police                                         -81-                                         -81-            officer from 1978 until  some time around 1985 and  used that            position  to gain access to the registry computer and provide            license plate checks to Innamorati.                   Employment   as  a   registry  police   officer  clearly            qualifies as a  "position of public .  . . trust"  within the            meaning  of the Guideline.  E.g., United States v. Rehal, 940                                        ____  _____________    _____            F.2d 1, 5  (1st Cir.  1991) (police sergeant).   Although  we            have found no case law on point, we do not believe it matters            that Thompson was no longer employed with the registry at the            time he provided the information to Innamorati, so long as he            abused the access that his former position afforded him.  The            Guideline itself does  not limit its application  to cases in            which  the  defendant  is  employed  at  the  time,  and  the            underlying policy appears to apply to this case.                   If and when others among the public could gain access to            motor  vehicle information  in the  registry is  not entirely            clear.  But the evidence  at trial indicated that  Thompson's            prior employment  made it  easier for  Innamorati  to do  so.            There was police testimony that it was improper for anyone to            perform  a check without  a valid law  enforcement purpose, a            test that Thompson's activities clearly  did not meet.  Given            these facts,  we do  not  believe that  the sentencing  judge            committed clear  error by  concluding that Thompson  abused a            position of public trust.  See Rehal, 940 F.2d at 5 (applying                                       ___ _____                                         -82-                                         -82-            "clearly  erroneous" standard  of  review  to  abuse-of-trust            adjustment under section 3B1.3).                 Finally, Thompson argues that the court erred by failing            to   award  him   a  four-level   reduction  as   a  "minimal            participant" under section 3B1.2(a).  A "minimal" participant            is defined as one who is "plainly among the least culpable of            those involved in the conduct of a group."  U.S.S.G.    3B1.2            comment note 1.  A "minor" participant"-- defined as one "who            is less culpable than most other participants, but whose role            could  not be described as minimal," id. (n.3) -- is entitled                                                 __            to  a two-level  reduction under  U.S.S.G.    3B1.2(b).   The            Guideline  also  permits the  court  to  award a  three-level            decrease to persons whose participation was more than minimal            but less than minor.     The four-level "minimal participant"            adjustment  was  intended to  be  applied  "infrequently"; an            example given is an  individual recruited as a courier  for a            single transaction  in  an larger  enterprise.   Id. note  2.                                                             __            Here, the  court concluded that  Thompson was not  a "minimal            participant" in  light of  his substantial assistance  to and            close association  with Innamorati.   At the  same time,  the            court  found   that  Thompson   played  a  limited   role  in            Innamorati's  overall  distribution activities,  and  was not            shown  to have  cocaine  himself or  to  have shared  in  the            profits.    The court  was  reasonable,  indeed generous,  in                                         -83-                                         -83-            awarding Thompson a three-level reduction for persons falling            in between the "minimal" and "minor" participant categories.                                C.  Robert DeMarco Sr.                 DeMarco Sr. challenges the court's determination that he            is accountable for  4.25 kilograms of cocaine.   This finding            was  based on  the  testimony of  Callahan at  the sentencing            hearing that he  distributed an average of a quarter kilogram            of cocaine per month to DeMarco Sr. from January 1987 through            February 1988.  It is unclear whether  Callahan was including            in this "average"  one or  both of  two initial  one-kilogram            sales  to DeMarco Sr.   But the district  judge resolved that            uncertainty  by  concluding that  one  of  the kilograms  was            included  in the  average  and  the  other  was  not.    This            conclusion  was  not  clearly erroneous.    Indeed,  Callahan            testified:                 I  would say the second  full kilo was  part of the                 average.  But conservatively  speaking, I would say                 you could  exclude the  first kilo and  the average                 would still be quarter kilo a month.            Thus,  the sum of 4.25 kilograms was derived by totalling the            quarter  kilogram sales over  a thirteen-month  period (which            amounts to  3.25 kilograms),  and then adding  the additional            one-kilogram  sale.   Although  there  were discrepancies  in            Callahan's testimony as to  the quantities and dates of  drug            sales  to  DeMarco  Sr.,   "the  court's  choice  from  among            supportable alternatives  cannot be clearly erroneous."   See                                                                      ___            McCarthy, 961 F.2d at 978.            ________                                         -84-                                         -84-                 DeMarco  Sr.  also  argues  that the  court  abused  its            discretion by  failing to  award him the  reductions provided            under  section 3B1.2  to  "minor" or  "minimal" participants.            The district  court was justified in  concluding that DeMarco            Sr. was a  major customer whose monthly  purchases of quarter            kilograms of cocaine  for more  than a year  helped keep  the            conspiracy in  operation.   Indeed, as the  government points            out, only two  of the  defendants--Innamorati and  Grady--had            more cocaine  attributed to  them at sentencing  than DeMarco            Sr.   We  find no  error in  the court's  refusal to  grant a            downward adjustment.                                 D.  William Letters                 The  court found  that Letters  was responsible  for 510            grams of cocaine.  This  was less than a third of  the amount            attributed to  Letters by the probation  officer.  Tulowiecki            testified at trial  that he delivered  quarter, half or  full            ounces of cocaine at least weekly and often several times per            week  to  Letters between  January  1987  and February  1988.            Taking an average of one ounce or 28 grams per week over this            fourteen-month period, the probation officer  determined that            Letters  should be  held responsible  for approximately  1588            grams.   For reasons that are unexplained,  the court reduced            this amount to 510 grams.  The court's reduction did not have            a corresponding  effect on Letters'  sentence, however, since                                         -85-                                         -85-            the Guidelines supply the  same base offense level of  26 for            any quantity between 500 grams and two kilograms.                  Despite Tulowiecki's testimony,  Letters points out that            the  chart prepared  from Tulowiecki's drug  ledger reflected            the sale of only 336.5  grams of cocaine to Letters.   But it            was clear  from Tulowiecki's testimony  at trial  and at  the            sentencing hearing  that the chart was  incomplete; it showed            only sales over a  limited period of time and for which there            were  written records, not all sales.  The chart showed sales            to  Letters only for the  period June 1987  to February 1988,            whereas Tulowiecki  testified that  deliveries  were made  to            Letters starting in January 1987.  In sum, although the basis            for the court's calculation of 510 grams does not appear from            the  record, the  evidence  supported a  determination of  at            least that amount.                 Letters also challenges the calculation of  his criminal            history category.    On March  30,  1990, while  Letters  was            released  on bail pending trial in this case, he was arrested            for possession of cocaine with intent to distribute.  Letters            was convicted of that offense in April 1991 and was serving a            sentence on that conviction at the time of sentencing in this            case.    This  new  conviction  increased  Letters'  criminal            history  by three  points  pursuant to  U.S.S.G.    4A1.1(a),            which  directs the district court  to "add 3  points for each            prior  sentence of  imprisonment exceeding  one year  and one                                         -86-                                         -86-            month."    Combined with  other  pertinent  information, this            increase  gave  Letters a  total  of  seven criminal  points,            placing him in Criminal History Category IV.                 Letters now  argues that  the March 1990  offense should            not have been  included in the calculation  because under the            Guidelines "prior sentences imposed  in related cases" are to            be  treated   as  one   sentence  in  the   criminal  history            computation. U.S.S.G.    4A1.2(a)(2).  Letters contends  that            the March  1990 offense was  "related" to the  conspiracy for            which he was convicted in this case, and therefore should not            have been separately  considered in determining  his criminal            history.   Letters, however,  did not  make this  argument at            sentencing, in  response to  the calculation of  his criminal            history  in  the Pre-sentence  report  or  at the  sentencing            hearing  before  the  district   court.    The  argument  was            therefore  waived.  See Figueroa, 976 F.2d at 1462.  Contrary                                ___ ________            to   Letters'  brief,  the   statutory  provision  permitting            appellate  review   of  sentencing   errors,   18  U.S.C.                3742(e)(1),  does  not  disturb the  long-standing  rule that            claims must first be  made in the district court  to preserve            them for review.16                                            ____________________                 16Even  if  the  issue had  not  been  waived,  there is            substantial  reason  to  believe  that  Letters'  March  1990            offense occurred after the  end of the Innamorati conspiracy.            The DEA search warrants were executed in February 1988 and by            March  1988  Innamorati  was   in  prison  on  a  state-court            conviction.                                            -87-                                         -87-                                  E.  James Litterio                 Litterio  contends that there  was insufficient evidence            to  support the  district  court's determination  that he  is            responsible for  1.7 kilograms of cocaine.   The 1.7 kilogram            figure is  based on Tulowiecki's testimony  that he delivered            small amounts  of cocaine to  Litterio several  times a  week            between  January   1987  and   February  1988  (based   on  a            conservative estimate of 10 grams per week,  the total amount            was fixed at 600  grams); on evidence that Litterio  provided            four ounces (112 grams)  of cocaine to his brother  Mark that            were  then sold  to  undercover agents;  and on  Tulowiecki's            testimony  that  soon  after  the  four-ounce  deal  Litterio            ordered an  additional kilogram  of cocaine  from Innamorati,            although the  deal was canceled  when it was  discovered that            undercover officers might be involved.                  Although  Litterio argues  that  he should  not be  held            responsible for  cocaine that he purchased  for personal use,            this confuses  the standard for criminal  liability with that            for  sentencing accountability.   Purchases  by an  addict or            casual user for personal use may not automatically make one a            member of a conspiracy to distribute.  The situation is quite            different where, as here, the evidence shows that there was a            conspiracy and that a defendant was a member.  At that point,            that defendant's  purchases for personal use  are relevant in                                         -88-                                         -88-            determining  the quantity  of drugs  that the  defendant knew            were distributed by the conspiracy.                                  F.  John Boisoneau                 The court held Boisoneau responsible for 316.52 grams of            cocaine and  sentenced him  to 33 months  imprisonment, which            was at the bottom  of the applicable range.   The calculation            of 316 grams included approximately 250 grams of cocaine that            Boisoneau  observed  on  one  occasion   while  visiting  the            Edgewater Hills safehouse.  When Boisoneau saw this "hunk" of            cocaine he told Innamorati to put it away because it made him            nervous.  Boisoneau argues  that in light of his  reaction to            the 250 grams of cocaine it was unreasonable for the court to            hold him accountable for that amount at sentencing.                 The standard in  computing the quantity of  drugs is the            amount  of  cocaine  that  Boisoneau reasonably  should  have            foreseen  to have  been embraced  by the  conspiracy  that he            entered.   See O'Campo, 973 F.2d  at 1026.  The  250 grams of                       ___ _______            cocaine  that Boisoneau observed in Innamorati's safehouse is            reasonably  included  in  determining  the  total  amount  of            cocaine  that Boisoneau  could have  foreseen, regardless  of            whether  the amount made him nervous.  If there were evidence            that Boisoneau effectively withdrew from the conspiracy after            he  saw the  "hunk" and  realized the  scope of  Innamorati's            operation,  this would be a  different case, but  there is no            evidence of any such withdrawal.                                         -89-                                         -89-                                        * * *                 In  these  ten appeals,  somewhere  between  50 and  100            points were  raised by individual  defendants, although there            is  some  overlap.   We  have addressed  those  that appeared            substantial  and we  have  considered  without  discussion  a            number of others that were plainly without merit, were raised            in a perfunctory fashion, or both.  Because of the number  of            claims, the defendants' briefs  were reviewed again after the            opinion was prepared to  make certain that no claim  of error            was overlooked.     The  judgments  are affirmed  except that                                _________________________________________            the judgment of conviction  of defendant Grady on Count  4 is            _____________________________________________________________            vacated and his case is remanded for resentencing.             _________________________________________________                                         -90-                                         -90-
