February 4, 1993
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIRST CIRCUIT
                                           

No. 92-1427
                          UNITED STATES,

                             Appellee,

                                v.

                          JOSE A. GARCIA,

                       Defendant, Appellant.

                                           

No. 92-1428
                          UNITED STATES,

                             Appellee,

                                v.

                         PABLO H. GARCIA,

                       Defendant, Appellant.
                                           

           APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Ronald R. Lagueux, U.S. District Judge]
                                                       
                                           

                              Before
                        Breyer, Chief Judge,
                                           
                  Bownes, Senior Circuit Judge, 
                                              
                     and Selya, Circuit Judge.
                                             
                                           

  John M. Cicilline, for defendant-appellant Jose A. Garcia.
                   
  Francis J. Gillan, III, for defendant-appellant Pablo H. Garcia.
                        
  Zechariah  Chafee,  Assistant United  States  Attorney, with  whom
                   
Lincoln C. Almond, United States Attorney, was on brief, for appellee.
               

                                         

                                         

          BOWNES,  Senior  Circuit Judge.    Defendants Pablo
                                        

Garcia and Jose  Garcia (no relation) were tried  jointly and

convicted by a jury in  federal district court for possession

of cocaine  with intent to distribute, in  violation of Title

21 U.S.C.   841(a)(1), and conspiracy to possess cocaine with

intent  to distribute, in violation of Title 21 U.S.C.   846.

On  appeal, defendants-appellants  both argue:  (1) that  the

evidence  was  insufficient to  support the  convictions; (2)

that the  district judge  erred in vacating  the magistrate's

order   compelling   the  attendance   of   the  government's

confidential informant at a suppression hearing; and (3) that

the  district  judge erred  in  failing  to suppress  certain

evidence.   In addition,  defendant Pablo Garcia  argues that

the district judge  erred in admitting evidence  of his prior

arrest pursuant to Fed. R. Evid. 404(b).  We affirm.

                              I.

                          Background
                                    

          On February 6, 1991, the Providence police executed

a  search  warrant for  narcotics  and related  items  in the

second floor apartment of  a three-story tenement building at

93-95 Gallatin Street.  The  search warrant had been obtained

pursuant  to information  the police  received to  the effect

that drug  trafficking was being conducted  in the apartment.

The  police had  confirmed  the information  by conducting  a

"controlled  buy."   In  executing  the  warrant, the  police

announced their presence,  waited approximately ten  seconds,

and receiving  no response,  proceeded forcibly to  enter the

apartment.    Upon their  entry,  the  police found  the  two

defendants and  a woman holding a child  in the front room of

the apartment.  The woman, Altagracia Lopez, shared the front

room of  the  apartment  with  Oscar Quinones,  who  was  not

present at the time of the defendants' arrest.

          Defendants were made to lie on the  floor while the

police initiated  a search  of the  apartment.   INS  Special

Agent  Bernstein testified  that  he gave  defendants Miranda
                                                             

warnings in Spanish.  In the  closet of the back bedroom, the

police  found approximately  ten  and  one-half  ounces  (295

grams) of suspected cocaine in one of several opaque  plastic

bags  on the  closet's  floor.   The  substance later  tested

positive  as  cocaine, and  was  valued  between $13,650  and

$16,800.   Also in the  closet were articles  of clothing and

scattered  papers,  including  a  bill  of  sale  and  a  car

registration in  the name of  Pablo Garcia registered  to the

address  of 93-95 Gallatin Street.   Under a  mattress in the

front room, the police discovered a passport for Pablo Garcia

and a number of  notebooks with figures and names  that a DEA

agent testified were  records of narcotics  dealing.  In  the

box spring  under the  mattress, the  police found  $1,308 in

cash.   Finally,  on the  kitchen counter,  police discovered

plastic ziploc  bags that had  been cut,  and a candle  and a

                             -3-

strainer.  At  trial, DEA  agents testified  that these  were

packaging materials for cocaine distribution. 

          The police took Pablo  and Jose separately into the

room where the cocaine had been found, and asked each of them

to identify a piece of clothing that belonged to them.  Pablo

picked out a shirt and jacket (later revealed to be a woman's

jacket).   Jose picked out a  shirt.  Also in  that room were

two  mattresses, one of  which was propped  against the wall.

The  closet in the  back bedroom was  the only  closet in the

apartment.

          Both   defendants  took  the  stand  at  trial  and

testified in  their own defense.   While admitting  that they

both slept in the room  in which the cocaine was  found, they

denied  knowing that there was  cocaine in the  closet.  Both

also  denied  knowing  of  the  presence  of  the other  drug

paraphernalia  in the  apartment or  of any  drug trafficking

operation.  

          Defendants  presented  different  explanations  for

their presence in the apartment.   Jose Garcia testified that

he had lived in the back room at  93-95 Gallatin Street since

the previous August or  September.  He said that  he had been

in  Santo Domingo  from December 23,  1990 until  January 23,

1991,  and that he  had spent a  few days in  New York before

returning  to Providence.    He returned  to find  that Pablo

Garcia, whom  he had never  met, was  staying in the  room he

                             -4-

rented.   He testified that  he had been trying  to move from

the apartment when the arrest took place, and that he already

had moved many of his belongings to a friend's home.

          Pablo Garcia  testified that he lived  in New York,

but had come to Providence in February to stand trial for his

arrest,  in  December 1990,  for  cocaine  trafficking.   The

district judge had, before Pablo testified, admitted evidence

of this  prior arrest  as probative of  defendant's knowledge

and  intent  to  commit   the  offenses  at  issue.     Pablo

acknowledged  that  he was  a friend  of Oscar  Quinones, but

maintained that he did not know  Jose Garcia, and that he had

no real control over the room or the apartment because he was

only temporarily residing there.  

                             II.

                 Sufficiency of the Evidence
                                            

          Defendants   both  appeal   the  denial   of  their

respective  motions for  judgment of  acquittal.1   Both were

convicted of  possessing and  conspiring  to possess  cocaine

with the intent  to distribute.   Defendants assert that  the

prosecution failed to prove,  beyond a reasonable doubt, both

knowing possession of the  cocaine and their participation in

a conspiracy to possess cocaine.

                    

1  Pablo  Garcia  and  Jose  Garcia  have  each  adopted,  by
reference, the other's brief.  See F.R.A.P. 28(i).
                                  

                             -5-

          The   standards  governing   a  challenge   to  the

sufficiency of the evidence are familiar and oft-quoted:

          The challenges to  the sufficiency of the
          evidence and to the  denial of the motion
          for judgments of acquittal raise a single
          issue.  We assess the  sufficiency of the
          evidence  as  a   whole,  including   all
          reasonable inferences, in the  light most
          favorable to the verdict,  with a view to
          whether  a rational  trier of  fact could
          have  found the defendant guilty beyond a
          reasonable  doubt.     We  do  not  weigh
          witness  credibility,   but  resolve  all
          credibility  issues  in   favor  of   the
          verdict.   The  evidence may  be entirely
          circumstantial,  and   need  not  exclude
          every reasonable hypothesis of innocence;
          that is, the  factfinder may decide among
          reasonable    interpretations   of    the
          evidence.

United States v. Batista-Polanco, 927  F.2d 14, 17 (1st  Cir.
                                

1991) (citations  omitted).  See also United States v. Lopez,
                                                            

944 F.2d 33, 39 (1st Cir. 1991).

A.  Substantive Offense
                       

          The charge of possession with intent to  distribute

cocaine requires, in the context of this case, proof beyond a

reasonable doubt that the cocaine found  in the closet within

the room shared by defendants was knowingly and intentionally

possessed by them  for purposes of distribution.   See United
                                                             

States  v.  Vargas,  945  F.2d  426,  428  (1st  Cir.  1991).
                  

"Possession may  be actual  or constructive, sole  or joint."

United  States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992);
                       

United  States  v. Vargas,  945  F.2d at  428.   Constructive

                         

                             -6-

possession is proved when a person  "`knowingly has the power

and  intention  at a  given  time  to  exercise dominion  and

control over an object,  either directly or through others.'"

United States  v. Ocampo-Guarin, 968 F.2d  1406, 1409-10 (1st
                               

Cir.  1992) (quoting United States  v. Lamare, 711  F.2d 3, 5
                                             

(1st Cir. 1983)).  See also United States v. Vargas, 945 F.2d
                                                   

at  428 (constructive  possession found  where defendant  was

sole tenant  and occupant  of apartment immediately  prior to

police raid); United States  v. Barnes, 890 F.2d 545,  549-50
                                      

(1st   Cir.  1989)   (constructive  possession   found  where

defendant leased  apartment that  was  jointly occupied  with

others), cert. denied, 494 U.S. 1019 (1990); United States v.
                                                          

Calle-Cardenas, 837  F.2d 30,  32 (1st Cir.)  (reasonable for
              

jury to  find defendant  exercised dominion and  control over

area where contraband was  found because three occupants were

dressed similarly and all three names appeared on door at the

time of the raid),  cert. denied, 485 U.S. 1024 (1988).   The
                                

government may show  constructive possession through  the use

of either  direct or circumstantial evidence.   Mere presence

or association with another  who possessed the contraband is,

however, insufficient to  establish constructive  possession.

United  States v. Wight, 968  F.2d at 1397;  United States v.
                                                          

Batista-Polanco, 927 F.2d at 18.
               

          This  case  is very  similar  to  United States  v.
                                                         

Vargas, 945 F.2d 426, and the analysis flows accordingly.  In
      

                             -7-

Vargas,  a  search   warrant  was  executed  at   defendant's
      

apartment when defendant was playing cards in a kitchen with,

among  others,   an  alleged  co-conspirator.     The  search

uncovered:  one kilogram of cocaine concealed behind a wooden

baseboard in  a bedroom  with the co-conspirator's  passport;

drug ledgers on top of a bureau and $2,400 in a jacket pocket

in the only other  bedroom, and a narcotics notebook  in open

view in the kitchen.  We affirmed both the possession and the

conspiracy charges.  

          On the  possession charge,  we held that  there was

sufficient evidence from which the jury could have found that

defendant  enjoyed  either  exclusive or  joint  dominion and

control of the apartment during the days preceding the police

raid.  We found that  there was ample circumstantial evidence

for a finding that the cocaine was intended for distribution:

from the quantity it was reasonable to infer that the cocaine

was not  merely for  personal consumption and  such inference

was  buttressed  by the  large amount  of  cash and  the drug

records  in open view.  In language directly apposite to this

case, we  concluded that,  "it would be  reasonable to  infer

that no non-occupant,  other than a confidant  of the tenant,

would  deposit a valuable cache of contraband in a bedroom of

an unsuspecting tenant's apartment from which retrieval would

be much more difficult at best, and the risk of discovery and

loss  far  greater, than  if  a more  accessible  and closely

                             -8-

controlled location were used or the  secret were shared with

the  tenant."  United States  v.  Vargas,  945  F.2d at  429.
                                        

Similarly, the evidence in this case was sufficient to permit

a  rational  jury to  find that  both  Pablo Garcia  and Jose

Garcia  constructively possessed  the  cocaine.    They  both

shared  dominion and control over the  area where the cocaine

was found.   Both men admitted to living  in the second floor

apartment and to jointly occupying the rear bedroom where the

cocaine was found; Jose exclusively for the prior five or six

months,  and  both Pablo  and Jose  for the  week immediately

preceding the raid.  At the time of the search, both told the

police  that the apartment was  where they lived.   After the

search uncovered cocaine, both were separately taken into the

bedroom and asked  to pick  out an article  of clothing  that

belonged to them, which they did.  Also found on the floor of

the  closet  along with  the  cocaine  were various  personal

papers belonging  to Pablo, including  car registration forms

registered to  93-95 Gallatin  Street.  In  addition, Pablo's

passport, concealed along  with a large  amount of money  and

records of drug sales, was also found during  the search.  As

we stated in Vargas, "[e]vidence sufficient to establish that
                   

the accused  shared dominion and control of  the premises can

serve  as   a  sufficient  basis  for   inferring  a  knowing

possession of  contraband where the  evidence indicates  that

the  accused,  either alone  or  jointly  with  one  or  more

                             -9-

persons,  intended  to facilitate  the  possession."   United
                                                             

States v. Vargas, 945 F.2d at 428.  
                

          There was  also ample evidence from  which the jury

could  find  that the  cocaine  discovered  was intended  for

distribution.  The quantity of cocaine (295 grams), the large

amount of  cash, the drug records,  and cocaine paraphernalia

in  plain view, were  all links in  a chain of  evidence from

which intent  to  distribute cocaine  could  be found.    See
                                                             

United States v. Desmarais, 938 F.2d 347, 352 (1st Cir. 1991)
                          

(intent to distribute reasonably inferable from possession of

controlled substance and related paraphernalia).

B.  Conspiracy
              

          "The gist of conspiracy  is an agreement to disobey

or to disregard the law."  United States v. Drougas, 748 F.2d
                                                   

8,  15 (1st  Cir.  1984).   The  government must  prove  both

"intent  to  agree  and  intent  to  commit  the  substantive

offense."   Id.  "Due  to the clandestine  nature of criminal
               

conspiracies, the law  recognizes that the illegal  agreement

may  be either 'express or tacit' and that a `"common purpose

and  plan may be inferred  from a development and collocation

of circumstance." ' "  United States v. Sanchez, 917 F.2d 607
                                               

(1st Cir.  1990) (citations omitted), cert.  denied,     U.S.
                                                   

   , 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991).  See also United
                                                             

States v. Tejeda, 974 F.2d 210, 212 (1st Cir. 1992).  Thus, a
                

conspiracy   may   be   established  through   circumstantial

                             -10-

evidence,  United States v. Ocampo, 964 F.2d 80, 82 (1st Cir.
                                  

1992),  and to prove its  case the government  is required to

demonstrate   only   a   tacit  understanding   between   the

conspirators.  United States v. Olivo-Infante, 938 F.2d 1406,
                                             

1410 (1st  Cir. 1991).  But  mere presence at the  scene of a

crime is  insufficient to  prove membership in  a conspiracy.

United States v. Ocampo, 964 F.2d at 82 (citing United States
                                                             

v. Francomano, 554 F.2d 483, 486 (1st Cir. 1987)). 
             

          The evidence viewed in  the light most favorable to

the verdict,  together with  all reasonable inferences  to be

drawn  therefrom,  permitted a  rational  jury  to find  both

defendants guilty beyond a  reasonable doubt of conspiracy to

possess cocaine with  the intent to  distribute.  See  United
                                                             

States v. Tejeda, 974 F.2d at 212.
                

                             III.

             District Judge's Decision to Vacate
                                                
                Order Compelling Attendance of
                                              
              Confidential Informant at Hearing
                                               

          Defendant  Pablo Garcia  argues  that the  district

court   erred  in   vacating  the   magistrate-judge's  order

compelling the attendance of the confidential informant at an

evidentiary hearing to be  held by the district judge.2   The

magistrate first  issued a  pretrial order on  June 11, 1991,

                    

2  Although  we  treat this  issue  and  the following  issue
involving motions  to suppress  as arguments  presented below
and on  appeal  by Pablo  Garcia,  we acknowledge  that  Jose
Garcia has adopted the arguments.  See footnote 1. 
                                      

                             -11-

which  required that  the  government  arrange  communication

between the  confidential informant  and the defense  "to the

extent  that said person is willing to communicate."  On July

9, defendant Pablo Garcia filed a motion with the  magistrate

asking  that the  government be  ordered to  comply with  the

pretrial  order.   On  September 5,  the magistrate  issued a

second order stating, in pertinent part, that,

          the  person  who  bought  cocaine  at  95
          Gallatin Street, 2nd  Floor on behalf  of
          the  police,  be  served  by  the  United
          States   Marshal  Service,   through  the
          United  States Attorney,  with a  copy of
          this order  to compel attendance  of this
          witness  at a Motion  to Suppress hearing
          to be  held by  Judge Lagueux at  a date,
          time and  place to be fixed and specified
          by  Judge  Lagueux.    Counsel   for  the
          Defendant shall be  allowed to meet  with
          such witness just  prior to said hearing.

The government  appealed this  second motion to  the district

court  judge.3   The  district judge  held  a hearing  on the

government's appeal.  He determined that the defendant failed

to make  the preliminary  showing as  required  by Franks  v.
                                                         

Delaware,  438 U.S.  154 (1978),  in order  for the  court to
        

conduct  an evidentiary hearing on the validity of the search

warrant.   The  judge  explained that  it  appeared that  the

magistrate's order assumed that  the district judge was going

                    

3    Local Rule  32(b)(2)  provides in  pertinent  part that,
"[a]ny  party may  appeal from  a magistrate's  determination
made under this rule within 10 days after the issuance of the
magistrate's order."   

                             -12-

to  conduct a hearing, that the  defense had failed to make a

proper  case for  the hearing,  and  that, absent  a hearing,

there was no  requirement that  the informant appear.   At  a

later hearing on October 31, 1991, the judge refused to grant

defendant a  subpoena ex parte, and  delayed determination of
                              

whether  the   informant  could   be  subpoenaed   until  the

appropriate time at  trial.  Pablo  Garcia never renewed  his

motion for a subpoena at trial. 

          A magistrate's  discovery  order may  be set  aside

where  the  order is  clearly erroneous  or contrary  to law.

Fischer  v. McGowan,  585 F.  Supp.  978, 984  (D.R.I. 1984);
                   

Pascale v. G.D. Searle &amp; Co., 90 F.R.D. 55, 59 (D.R.I. 1981);
                            

28 U.S.C.   636 (b)(1)(A); Local Rule 32(b)(2).  The district

judge  determined that  the  magistrate's  order was  clearly

erroneous because it compelled the  confidential informant to

attend a suppression  hearing when the district judge had not

yet determined whether he  would conduct such a hearing.   We

find   that   the  district   court   properly  vacated   the

magistrate's order.

                             IV.

                   The Suppression Motions 
                                          

A.  Probable Cause
                  

          Defendant  Pablo  Garcia  challenges  the  district

court's  denial of  his  motion to  suppress evidence  seized

during the search of  the apartment on the ground  that there

                             -13-

was no probable cause for the officers to execute the search.

In particular,  he asserts that the  affidavit underlying the

search  warrant  upon  which   the  search  team  relied  was

deficient.   The search warrant  was issued by  a state court

judge for the  state of  Rhode Island upon  the affidavit  of

Detective Zammarelli.   That  affidavit, in  essence, stated:

that Detective Zammarelli had reason to believe that a large-

scale  drug operation was  being conducted out  of the second

floor  apartment of 93-95 Gallatin Street; that he met with a

reliable  confidential  informant  who  told  him  that   two

Hispanic  persons were  storing and  selling drugs;  that the

informant had seen large amounts of cocaine in the apartment;

and   that,  to   corroborate  this   information,  Detective

Zammarelli executed a "controlled buy" through the informant.

The   affidavit  fully   described   the  "controlled   buy."

Detective Zammarelli reported  searching the informant  prior

to the  buy and finding no contraband on him.  He stated that

he gave the informant a sum of U.S. currency, followed him to

the  apartment,  watched him  enter the  front door  of 93-95

Gallatin  Street, and observed  him exit a  few minutes later

from  the same door.   Next, he stated  in the affidavit that

the informant then handed  Detective Zammarelli a quantity of

cocaine, reporting  that he had purchased  the substance from

the Hispanic male who resided in the second floor apartment. 

Detective Zammarelli  stated that  he made another  search of

                             -14-

the informant and found  no contraband.  Later,  upon testing

the substance,  Detective  Zammarelli confirmed  that it  was

cocaine.

          The   district  court  determined  that  there  was

sufficient  probable   cause  stated  on  the   face  of  the

affidavit,  finding  that  the information  provided  therein

would lead a  reasonable person to  believe that cocaine  was

being sold from the second floor apartment.      

          We  review the district  court's decision to uphold

the  warrant only for clear error.  United States v. Nocella,
                                                            

849 F.2d 33, 39  (1st Cir. 1988); United States  v. Figueroa,
                                                            

818  F.2d  1020, 1024  (1st Cir.  1987).   In  evaluating the

sufficiency of  an affidavit, we afford great  deference to a

magistrate's determination  of probable  cause.   Illinois v.
                                                          

Gates, 462  U.S. 213, 236  (1983) (citing Spinelli  v. United
                                                             

States, 393 U.S. 410, 419 (1969)).
      

          The standard applied in determining the sufficiency

of an  affidavit is a  "totality of the  circumstances" test.

Illinois  v. Gates, 462 U.S. at 238.   The affidavit is to be
                  

interpreted in  a common-sense rather than  a hypothetical or

hypertechnical manner.  See  id.; United States v. Ventresca,
                                                            

380 U.S. 102, 109 (1965); United States v. Cochrane, 896 F.2d
                                                   

635,  637 (1st  Cir.),  cert. denied,  496  U.S. 929  (1990);
                                    

United States v. Calle-Cardenas, 837 F.2d at 31. 
                               

                             -15-

          Defendant argues that  the affidavit is  inadequate

because the detective failed  to establish the reliability of

the confidential  informant.  More generally,  he argues that

this affidavit is the sort of "bare bones" affidavit that the

Supreme Court criticized  in United States v.  Leon, 468 U.S.
                                                   

at 915.  We disagree with both of these contentions.  

          Detective Zammarelli confirmed the information with

which the confidential informant provided him by carrying out

a carefully-executed "controlled buy."  Given   its  greatest

force,  defendant's argument  against this  corroboration was

that  one  and  the same  informant  was  the  source of  the

information and the  actor in the "controlled  buy," and that

the  informant might  have stashed  cocaine elsewhere  in the

building  out   of  the  sight   of  the  detective.     This

possibility, defendant  posits, undercuts the  reliability of

the informant.  Although defendant's argument is possible, it

is  not  probable and  strains  credulity  on a  common-sense

reading.  We find that both the issuing state court judge and

the district  judge drew  a reasonable inference  of probable

cause that  there was  drug trafficking in  the second  floor

apartment  of 93-95 Gallatin Street.  We affirm the denial of

the motion to  suppress the evidence  seized pursuant to  the

warrant.

B.  Execution of Warrant
                        

                             -16-

          Pablo  Garcia  next challenges  the  denial  of his

motion  to  suppress  certain  statements  made and  evidence

seized  during the search of the apartment on the ground that

the execution  of the search warrant  was unlawful, resulting

in an unconstitutional search and seizure. 

          In reviewing  a denial of a  suppression motion, we

must  uphold the  district court's  findings unless  they are

clearly erroneous; the court's ultimate  conclusion, however,

is  subject to plenary review.  United States v. Sanchez, 943
                                                        

F.2d 110, 112 (1st  Cir. 1991) (citations omitted).   We will

uphold the denial of the motion to suppress if any reasonable

view  of the evidence supports it.  Id. (citing United States
                                                             

v.  Veillette, 778  F.2d  899,  902  (1st Cir.  1985),  cert.
                                                             

denied, 476 U.S.  1115 (1986)).   See also  United States  v.
                                                         

Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990) (district court's
            

choice between two competing interpretations of  the evidence

cannot be clearly erroneous).

          At the time of the execution of the search warrant,

defendants were watching television in the  front room of the

apartment with co-tenant, Altagracia Lopez.  Detectives Della

Ventura  and Zammarelli were part  of the search  team at the

apartment's front door.   Detective  Della Ventura  testified

that  he knocked  loudly  on the  door  and shouted  "Police,

search warrant, open the door."   After waiting approximately

ten   seconds   without  receiving   a   response  (Detective

                             -17-

Zammarelli estimated ten to fifteen seconds), the search team

forcibly  entered the apartment.   Upon  entering, defendants

were immediately restrained.

          At  the hearing,  defendant Pablo Garcia  sought to

suppress all evidence seized from  the apartment on the basis

that the execution of the warrant was conducted  in violation

of  the "knock  and announce"  rule, 18  U.S.C.    31094, and

such  violation rendered  the subsequent  search warrantless.

Pablo   Garcia  argued,  alternatively,   that  no  knock  or

announcement  was  made at  all;  that  the announcement  was

inadequate when considering  the purpose of the rule;  or, if

the  announcement  was adequate,  that  the  ten second  wait

before  forcibly entering was, as  a matter of  law, not long

enough.

          After  hearing  the  testimony  of the  two  police

officers who executed  the warrant and  of Pablo Garcia,  the

district  judge found that  the police  did loudly  knock and

announce  their presence  and purpose  as required,  and that

they entered the apartment  when they believed that  they had

been  refused admission.   The  district judge  was satisfied

                    

4 18 U.S.C.   3109 states in pertinent part:
          The officer  may break open any  outer or
          inner door  or window of a  house, or any
          part of a house, or  anything therein, to
          execute  a  search  warrant,   if,  after
          notice of his  authority and purpose,  he
          is refused admittance  or when  necessary
          to  liberate himself  or a  person aiding
          him in the execution of the warrant.

                             -18-

that,  in the context of a  drug raid where contraband can be

disposed  of within seconds,  the ten to  fifteen second wait

was  a reasonable period of time, and that the officers fully

complied with the "knock and announce" rule.  

          The  district  court's  findings  are  not  clearly

erroneous.   Under the circumstances,  a wait of  ten seconds

after knocking  combined with  an announcement  before forced

entry, was reasonable.  The  occupants of the apartment  were

reasonably believed  to possess cocaine, a  substance that is

easily and quickly hidden or destroyed.  See United States v.
                                                          

One  Parcel  of  Real Property,  873  F.2d  7,  9 (1st  Cir.)
                              

(shorter wait [five to ten seconds] before entry justified by

fact that  officers had  probable cause to  believe occupants

possessed  cocaine, a  substance that  is easily  and quickly

removed  down a toilet), cert. denied  sub nom, Latreverse v.
                                                          

United States, 493 U.S. 891 (1989). 
             

C.  Adequacy of Miranda Warnings
                                

          Finally with regard to the  district court's denial

of  his motions  to suppress,  defendant Pablo  Garcia argues

that  the  law  enforcement  officials  failed  to adequately

apprise him of his rights in violation of Miranda v. Arizona,
                                                            

384 U.S. 436 (1966).

          Upon  entering the apartment, the police restrained

the defendant  and placed him face down on the floor.  As the

search  commenced,  INS  Special  Agent  Bernstein  gave  the

                             -19-

defendant Miranda warnings in Spanish.  He specifically asked
                 

defendant if  he understood each right as it was read to him.

After   each   such   question,   the   defendant   responded

affirmatively.   After advising  defendant of his  rights and

being told  by the defendant  that he understood  them, Agent

Bernstein asked  the defendant if  he was  willing to  answer

some  questions   without  the   presence  of   an  attorney.

Defendant  agreed  and  told  the  officer  he  would  answer

questions.    Agent  Bernstein  then  asked  defendant  basic

informational questions, such as where he lived.  The answers

to some of the questions were incriminating.  

          After  the discovery  of  the cocaine  in the  rear

bedroom, Agent Bernstein took  the defendant, alone, into the

bedroom  and  asked him  if  any  clothing belonged  to  him.

Defendant  responded  affirmatively.   Agent  Bernstein  then

asked  him  to  point out  something  that  was  his.   Being

handcuffed, defendant motioned with his head to a shirt and a

jacket.   Agent Bernstein identified the shirt and jacket and

asked  defendant  if  they   were  his;  defendant   answered

affirmatively.5

          At the suppression hearing, Pablo Garcia had sought

to suppress the incriminating  statements and actions he made

during  the search of the  apartment on the  ground that they

                    

5  Special Agent  Bernstein's  treatment of  Jose Garcia  was
substantially the same, and the same analysis applies. 

                             -20-

were  made  without an  intelligent,  knowing,  and voluntary

waiver  of his Fifth Amendment rights.  Defendant argued that

the officer was required to  specifically advise him that his

answers to the informational  questions could be used against

him, and because he was never  so advised, he could not  have

knowingly waived  his rights.  In  addition, defendant argued

that the warnings were  inadequate because the officer should

have  advised defendant that  anything he  did could  be used
                                              

against  him, and  that defendant  had a  right to  refuse to

point out such clothing that belonged to him.

          When an individual is taken into custody and before

interrogation,  Miranda  requires   that  the  individual  be
                       

advised:   that  he  has the  right  to remain  silent;  that

anything he  says may be used  against him in court;  that he

has  the right  to  consult an  attorney  before being  asked

questions;  that   the   attorney  may   be  present   during

questioning;  and that if  he cannot afford  an attorney, one

will be appointed for him if he wishes.  Miranda v.  Arizona,
                                                            

384 U.S. at 444.  Once the warnings delineated in Miranda are
                                                         

given and  acknowledged, all interrogation must  cease if the

individual indicates in any  manner, at any time prior  to or

during questioning, that he wishes to remain silent, or  that

he would like to seek the assistance of counsel.  Id. at 444-
                                                     

45.  

                             -21-

          After  being  advised of  his  Miranda  rights, the
                                                

accused  may validly waive his right to remain silent and his

right  to  counsel  and  respond to  questions.    See  North
                                                             

Carolina  v.  Butler, 441  U.S.  369,  372-76 (1979);  United
                                                             

States v. 
      

Eaton, 890 F.2d 511,  513 (1st Cir. 1989), cert.  denied, 495
                                                        

U.S. 906 (1990).  The determination of whether a valid waiver

of the right to  counsel or right to  remain silent was  made

depends on  whether the  waiver was knowing  and intelligent,

given  the  totality  of  the  circumstances  and  the  facts

surrounding the particular case, "`including  the background,

experience, and conduct  of the accused.'"   United States v.
                                                          

Butler, 441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304 
                                                     

U.S. 458, 464 (1938)).  See also Edwards v. Arizona, 451 U.S.
                                                   

477, 482-83 (1981); United States v. Ferrer-Cruz, 899 F.2d 
                                                

135,  141 (1st Cir. 1990) ("The basic governing legal rule is

that  a  court,  in   considering  whether  a  defendant  has

voluntarily  relinquished his  Fifth  Amendment rights,  must

examine   the  `totality  of  circumstances  surrounding  the

interrogation.'").     An  express  waiver  is not  required.

United States v. Butler,  441 U.S. at 373.   What is required
                       

is a clear showing of the intention, intelligently exercised,

to relinquish  a known  and understood  right.   Patterson v.
                                                          

Illinois, 487 U.S. 285, 292 (1988); United States  v. Porter,
                                                            

764 F.2d  1, 7 (1st Cir.  1985), cert. denied, 481  U.S. 1048
                                             

                             -22-

(1987) (Miranda requires the officer to  go further than just
               

asking accused if he understands his rights; the officer must

make sure  that the accused, knowing  his rights, voluntarily

relinquishes them).

          At  the  suppression  hearing,  the  district court

concluded  that the  defendant  was properly  advised of  his

rights,  understood them,  and  knowingly waived  them.   The

court  found no compulsion  in the questioning  or request to

pick  out an article of  clothing.  The  court concluded that

defendant voluntarily and with  full knowledge of his rights,

responded to the officer's request and effectively waived his

rights.   The record  supports the district  court's finding.

We note that the  incriminating statement which the defendant

sought  to suppress  was  never elicited  from the  arresting

officer at trial.

                             -23-

                              V.

         The Admission of Pablo Garcia's Prior Arrest
                                                     

A.  Background
              

          This  final issue  is the most  difficult one.   It

involves  the  questions  of  whether,  and,  if  so,  how  a

defendant can  avoid  the  admission  of prior  bad  acts  by

stipulating that knowledge  and intent are not contested.  We

first  rehearse  in extenso  what  happened  in the  district
                           

court.

          Prior to trial, defendant Pablo Garcia requested  a

ruling from the district  court as to whether it  would admit

evidence  under Fed. R. Evid. 404(b)6 of his prior arrest for

dealing in  cocaine.   The  court deferred  ruling until  the

evidence became relevant at trial.

          At the  start of the  trial, but before  the jurors

were in the courtroom, the attorney for Pablo Garcia (Francis

J. Gillan, III) requested that the government  not be allowed

to mention the 404(b)  evidence in its opening and  that none

of  the  witnesses be  allowed to  testify as  to defendant's

prior arrest until  the court had ruled on  the admissibility

                    

6 Fed. R. Evid. 404(b) provides that:
          Evidence of other crimes, wrongs, or acts
          is  not admissible to prove the character
          of a  person in  order to show  action in
          conformity therewith.   It may,  however,
          be admissible for other purposes, such as
          proof  of  motive,  opportunity,  intent,
          preparation,  plan, knowledge,  identity,
          or absence of mistake or accident.

                             -24-

of  the evidence.    The prosecutor  stated  that he  had  no

intention of  referring to  the evidence in  his opening  and

that  he  would  instruct  his witness  not  to  mention  the

previous arrest.  The court then stated that there would be a

hearing on  the question  in the absence  of the jury  at the

time the prosecutor wished to introduce the evidence.

          Counsel  for the  defendant  Jose  Garcia (John  M.

Cicilline),  then informed the  court that  he might  want to

elicit  testimony as to the  prior arrest of  Pablo Garcia in

cross-examination of government witnesses.  The court  stated

that he would rule on the question at the appropriate time.

          After the trial had progressed, Attorney Cicilline,

counsel for Jose Garcia, informed the court that he wanted to

elicit testimony about Pablo  Garcia's prior arrest in cross-

examination of the next government witness, a DEA agent.  The

court  then  held a  hearing  on  the  admissibility  of  the

evidence.

          After hearing Attorney Cicilline on the question of

relevancy, the court heard argument by Attorney Gillan, Pablo

Garcia's attorney,  as  to why  the  evidence should  not  be

admitted.   The prosecutor then advised the court that he was

not  going to offer the  evidence through the  DEA agent, but

that he intended  to offer testimony on  Pablo Garcia's prior

arrest by  a detective  on the Providence  Police Department.

The detective would testify that, within the last six months,

                             -25-

he  had  arrested  Pablo Garcia  on  a  cocaine charge  after

personally  witnessing the transaction  in which Pablo Garcia

was involved.

          During the course of the argument by Pablo Garcia's

attorney, the court commented:

               Well, one of  the requirements  that
          the  government must prove  is that there
          was possession, number 1, and number two,
          that   it  was   was   [sic]  a   knowing
          possession.  So, doesn't this evidence go
          to   question   [sic]   of  whether   the
          possession was knowing?

After hearing further argument  by Pablo Garcia's counsel the

court ruled:

               Well, I  think the rule is clear, as
          has been explicated by the  First Circuit
          with  the one  exception that  I referred
          to,  that   this  kind  of   evidence  is
          admissible  as  proof of  motive, intent,
          plan, knowledge, in  this kind of  a case
          where there's a charge of possession with
          intent to distribute, and also,  a charge
          of  conspiracy. . .  .   It's admissible.
          The prosecution  can put  it in.   So, if
          the prosecution doesn't choose to  put it
          in, one of the other defendants can bring
          it out.

          Prior  to  the  introduction  of  the  Rule  404(b)

testimony that the court had ruled would be admissible, Pablo

Garcia's  attorney  tried again  to  have  it excluded.    He

stated, inter alia:
                  

               Number  1, your Honor  had said that
          this  evidence  was important  because it
          would   go   to   issue  of   intent   to
          distribute.    A  prior  sale  equals  an
          intent  to  distribute on  this occasion.
          With  that  in   mind,  your  Honor,  and

                             -26-

          reading Rubio Estrada  again last  night,
          where  the Court  had  said  that     had
          mentioned the facts [sic] that intent was
          important.  I would  respectfully suggest
          that if intent was at issue, based on the
          testimony we heard  from Detective  Della
          Ventura  and  thus  far   from  Detective
          Zammarelli, I wouldn't contest  intent to
          distribute, insofar as there is more than
          ample  evidence  that  whoever  possessed
          that  cocaine,  possessed  it   with  the
          intent to distribute.  So, if the  404(b)
          evidence goes to the intention of someone
          to  distribute  that  cocaine,   I  would
          suggest, your  Honor,  that if  the  jury
          finds  beyond  a  reasonable  doubt  that
          Pablo  Garcia  possessed,  did   in  fact
          possess  that  cocaine,   then  I   would
          stipulate  that they can find from there,
          that  he did  so  with  the intention  to
          distribute that cocaine.

          After   counsel's   further   argument  on   unfair

prejudice the following colloquy took place:

               THE COURT:   It may be.   It may be.
          And  people in  your  position  say  it's
          unfair  prejudice.    I  say,  it's  fair
          prejudice  because   it's  fair  evidence
          against  this  defendant  because  he  is
          being  charged  with knowing  possession,
          and that's  an issue in this  case.  He's
          going  to tell  us, and  you're going  to
          argue  to the jury, that he just happened
          to  be  there, wrong  place at  the wrong
          time, doesn't know anything about cocaine
          trafficking.

               Mr.   GILLAN:  No, I  don't say that
          he  doesn't  know anything  about cocaine
          trafficking, just that he's  not involved
          in this enterprise.

               THE  COURT:    Well,  this  evidence
          indicates that he is.

               MR. GILLAN:  Thank you, your Honor.

                             -27-

               THE  COURT:   And  that's  why  it's
          relevant,  and  that's why  it's properly
          admissible under the  rule because  there
          is an issue of knowing possession . . .

          Detective  Zammarelli  testified  that, two  months

prior to the arrest  of Jose Garcia and Pablo  Garcia, he and

Detective  Della Ventura  (also  involved in  the arrests  of

Pablo  and Jose)  arrested Pablo  Garcia  in Providence  at a

different location.   Detective Zammarelli testified  that he

observed, through a large glass window, three men engaged  in

discussion.   One  of the  men handed  money to  another, who

began  to  speak with  the third  man,  Pablo Garcia.   Pablo

Garcia then  walked out  of Detective Zammarelli's  view, and

returned to hand  a bag of suspected cocaine  to the man from

whom  he obtained  money.   Detective Zammarelli,  along with

Detective Della Ventura, then arrested the  three men.  Pablo

Garcia  was charged  with  unlawful delivery  of cocaine  and

conspiracy.

          Immediately   after   this  testimony,   the  court

instructed the jury:

          . .  .  Mr.  Foreman and  members of  the
          jury,  sometimes  evidence is  admissible
          for  one purpose, but it's not admissible
          for another  purpose.  So, the  Court has
          to allow  the  evidence in  because  it's
          relevant on some point  in the case.  But
          I have to advise you, as jurors, that you
          can't consider it on some other  point in
          the case.

               The rule of evidence that's involved
          is  rule  404(b) which  relates  to other
          crimes or wrongs, prior bad  acts as it's

                             -28-

          often  referred  to.   Evidence  of other
          crimes, wrongs or  acts is not admissible
          to prove  the  character of  a person  in
          order  to  show   action  in   conformity
          therewith.      It   may,   however,   be
          admissible  for  other  purposes such  as
          proof  of  motive,  opportunity,  intent,
          preparation,  plan, knowledge,  identity,
          or  absence  of   mistake  or   accident.
          That's the rule.   What it means is that,
          in a  criminal trial  for an  offense you
          can't   bring   in   evidence  of   other
          offenses, just to show that the defendant
          is  a bad  person and  is likely  to have
          committed  this  offense.     That's  not
          admissible for that purpose.  However, it
          is admissible to show knowledge or intent
          or motive or plan.  

               I have  ruled that this  evidence is
          admissible  in  this  case against  Pablo
          Garcia because two  of the issues in  the
          case  relate  to  his knowledge  and  his
          intent.   First  of all,  he has  to have
          knowing possession of the cocaine in this
          case, and  also, he is  charged with  not
          only  knowing  possession but  possession
          with  intent to distribute.  And so, this
          evidence relates to  his knowledge  about
          cocaine   and    whether   he   knowingly
          possessed   it   in  that   apartment  on
          Gallatin   Street,   and   also,  if   he
          possessed  it,  whether  he possessed  it
          with intent to distribute.

               So, you may  consider this  evidence
          or  prior  acts by  the  defendant, Pablo
          Garcia,  only  on  the  question  of  his
          knowledge  and intent  in this  case; and
          the  government has the burden of proving
          those elements beyond a reasonable doubt.

This  instruction  was given  in  abridged form  in  the jury

charge.   It  is  to be  noted  that the  prosecutor did  not

mention the prior arrest in his closing argument.

                             -29-

          On appeal, defendant argues that the district court

erred  in  admitting the  404(b)  evidence  for two  reasons.

First, defendant contends that it was impermissible  evidence

of  bad  character  and  that it  was  unfairly  prejudicial.

Second, defendant argues that  the district court should have

accepted his  attempt to foreclose admission  of the evidence

by  offering to concede the issues of intent and knowledge to

which  the evidence was directed.  We begin by addressing the

admissibility of the evidence. 

B.  Admissibility of the Evidence  
B.  Admissibility of the Evidence
                                 

          Evidence of  prior bad acts is admissible, pursuant

to   Fed.  R.  Evid. 404(b),  when  it satisfies  a  two-part

inquiry by the trial court.  The trial judge first determines

whether  the  evidence  has  some "special"  probative  value

showing intent, preparation, knowledge or absence of mistake.

See United States  v. Flores Perez, 849  F.2d 1, 4 (1st  Cir.
                                  

1988)  (quoting from United States  v. Scelzo, 810  F.2d 2, 4
                                             

(1st. Cir. 1987));   United States v. Moccia, 681 F.2d 61, 63
                                            

(1st  Cir. 1982).   This evidence must  overcome the absolute

bar  of  Fed.  R.  Evid.  404(b),  excluding  evidence  which

demonstrates  only that  the defendant  has a  bad character.

See United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.
                                

1990); United  States v. Rubio-Estrada, 857  F.2d 845, 846-47
                                      

(1st  Cir. 1988).   Next,  the judge  balances  the probative

                             -30-

value of the evidence against the danger of unfair prejudice,

pursuant  to  Fed.  R. Evid.  403.7    See  United States  v.
                                                         

Ferrer-Cruz, 899 F.2d at 138; United States v. Rubio-Estrada,
                                                            

857  F.2d at  847; United States  v. Scelzo,  810 F.2d  at 4;
                                           

United States v. Moccia, 681 F.2d at 63.
                       

          The admission  of 404(b)  evidence is  committed to

the sound discretion of the trial judge.  We will reverse  on

appeal  only for abuse of  discretion.  See  United States v.
                                                          

Flores  Perez, 849 F.2d  at 4.  In  Flores Perez, we observed
                                                

that where the  404(b) evidence is  probative of issues  like

intent  and knowledge,  the prohibition against  admission of

character  evidence is construed broadly.  Id.  In this case,
                                              

the district  judge admitted  the evidence of  Pablo Garcia's

prior arrest  for dealing cocaine  as relevant to  intent and

knowledge.

          When   he  first  ruled   that  the   evidence  was

admissible,  the district judge  relied on  what he  called a

clear rule in this  circuit of admitting prior acts  evidence

as  proof  of knowledge,  intent,  etc.,  in cases  involving

possession  and  conspiracy.   As  we  explained recently  in

                    

7  Fed. R. Evid. 403 provides that:
          Although   relevant,   evidence  may   be
          excluded  if  its   probative  value   is
          substantially outweighed by the danger of
          unfair   prejudice,   confusion  of   the
          issues,  or  misleading the  jury,  or by
          considerations of undue  delay, waste  of
          time,   or   needless   presentation   of
          cumulative evidence.

                             -31-
                              31

United States v. Hadfield, 918 F.2d 987, 994 (1st Cir. 1990),
                         

cert. denied,      U.S.    , 111  S. Ct. 2062, 114  L. Ed. 2d
            

466  (1991),  we frequently  have  "upheld  the admission  of

evidence of prior  narcotics involvement in  drug trafficking

cases  to prove  knowledge  and intent."    See e.g.,  United
                                                             

States v.  Ferrer-Cruz,  899  F.2d  at 138  (1st  Cir.  1990)
                      

(introduction   of  prior  convictions  of  drug  trafficking

admissible to prove defendant's  knowledge that bags found in

car  contained cocaine); United  States v. Rubio-Estrada, 857
                                                        

F.2d  at   850  (introduction  of   prior  drug   trafficking

conviction  admissible  to  prove  knowledge  where defendant

claimed  he  did not  know that  cocaine  was in  his house);

United States v. Molinares Charris, 822 F.2d 1213, 1220  (1st
                                  

Cir. 1987)  (prior involvement with drug  smuggling tended to

refute claim of mere presence on boat carrying  drugs), cert.
                                                             

denied sub  nom, Pimienta-Redondo v. United  States, 493 U.S.
                                                   

890 (1989). 

          In this  case, there is  a close nexus  between the

past  act and the current charges.  Pablo Garcia was arrested

only two months earlier by two of the  same officers who made

the arrest  precipitating the current charges.   The previous

arrest  was for dealing in  cocaine, an act  which is similar

and has  special relevance to  the charge of  possession with

intent to distribute cocaine.   We find that the  trial judge

was correct  in concluding  that Pablo Garcia's  prior arrest

                             -32-
                              32

for dealing in cocaine could provide the basis for reasonable

inferences going  to  defendant's knowledge  and intent  that

were not based solely on bad character.  Cf. United States v.
                                                          

Francesco,  725   F.2d  817,  822  (1st   Cir.  1984)  (prior
         

conviction for selling cocaine  admissible to show  knowledge

and intent to possess and distribute cocaine). 

          We also  find that the prior  arrest was admissible

because its probative value was  not substantially outweighed

by  the danger of  unfair prejudice.  See  Fed. R. Evid. 403.
                                         

We afford "considerable  leeway" to a  district court in  its

Rule  403 balancing, United States v. Simon, 842 F.2d at 555,
                                           

and  we will  reverse a  district court's  balancing only  in

"exceptional circumstances."   United States v.  Garcia-Rosa,
                                                            

876  F.2d  209, 221  (1st Cir  1989),  cert. denied  sub nom,
                                                            

Alvarez  v. United States, 493  U.S. 1030 (1990).   This case
                         

does not present any such exceptional circumstances.

          We  note  that  the  evidence  involved  an arrest,

rather  than  a  conviction, and  involved  two  of  the same

officers  who  participated  in  the arrest  leading  to  the

charges  at  issue.    These circumstances  might  well  have

exaggerated the prejudicial effects of the evidence, a factor

not   explicitly   addressed    by   the   district    court.

Nevertheless,  Rule  404(b) covers  prior  acts,  and is  not
                                               

limited  to convictions.  From  our review of  the record, we

are satisfied that there  was sufficient evidence linking the

                             -33-
                              33

defendant  to the prior act.   Moreover, the  fact that Pablo

Garcia  was only arrested, and  had not been   convicted, was

explained to the jury.    

          Lastly, the district  court handled the  prior acts

evidence  with  care,  providing  the jury  with  a  limiting

instruction  after  the  evidence  was  admitted,  and  again

instructing the jury of  the scope of prior acts  evidence in

his final charge.  

C.  Defendant's Offers to Concede Knowledge and Intent
                                                      

          Having found the prior acts evidence admissible, we

now  address  defendant's  argument  that,   because  he  had

conceded  the elements of  knowledge and intent  to which the

evidence  was directed,  the  evidence should  not have  been

admitted.  In support  of his claim, defendant points  to two

statements  made by defense counsel prior to the admission of

the  evidence.   With  respect  to  the issue  of  knowledge,

defendant   highlights  an  unelaborated  statement  made  in

response to the court's  discussion of the prejudicial impact

of the evidence  that, "No, I don't say that  he doesn't know

anything about cocaine trafficking. . . ."   With  respect to

the issue of intent, defendant points to  his counsel's offer

to stipulate to  the intent  to distribute in  the event  the

jury found that Pablo Garcia, in fact, possessed the cocaine.

(We excerpted the context surrounding these statements in our

discussion  of the  background on  this issue,  supra.)   The
                                                     

                             -34-
                              34

combination   of  these  two  statements,  defendant  argues,

constituted  a  clear  offer  to  concede  that  he  had  the

requisite knowledge  and intent  to possess the  cocaine, and

the  specific  intent to  distribute  it,  if the  government

proved that he possessed it.  For the reasons that follow, we

find  that  the  defendant   failed  sufficiently  to  remove

knowledge  and intent from the case, and that the trial judge

did not err in admitting the evidence despite the defendant's

stated concessions.

          Defendant relies upon our decision in United States
                                                             

v.  Ferrer-Cruz,  899 F.2d  at 139,  in  which we  examined a
               

similar claim "in light of"  the Second Circuit's decision in

United  States  v. Figueroa,  618  F.2d 934  (2d  Cir. 1980).
                           

Figueroa held that a defendant may remove issues of knowledge
        

and intent from a case by  telling the court that he will not

dispute those issues:

          provided that he expresses himself to the
                                                   
          court with sufficient clarity  to justify
                                       
          the   court   in   (a)  disallowing   any
          `subsequent  cross-examination   or  jury
          argument  that  seeks  to   raise'  those
          issues, and  (b) `charging the  jury that
          if they find all  other elements beyond a
          reasonable  doubt,  they can  resolve the
          issue against the defendant because it is
          not disputed.'

United States v. Ferrer-Cruz,  899 F.2d at 139 (quoting  from
                            

United States v. Figueroa,  618 F.2d at  942).  The court  in
                         

Figueroa  explained   that  a  formal  stipulation   was  not
        

required.  Id.  The offer, however, must be unequivocal.  Id.
                                                             

                             -35-
                              35

See  also United States v. Colon,  880 F.2d 650, 659 (2d Cir.
                                

1989); United States  v. Mohel,  604 F.2d 748,  754 (2d  Cir.
                              

1979).  

          In Figueroa  the court found ample  evidence in the
                     

record that the defense counsel  had spoken with clarity, and

had  removed, not  merely  certain inferences  that might  be

drawn as to the  defendant's intent, but the entire  issue of

intent.  Counsel had addressed  each of the court's  concerns

and  had stated  "unequivocally,"  "'[t]here is  no issue  of

intent.'" United States  v. Figueroa,  618 F.2d at  940.   By
                                    

contrast,   in  Ferrer-Cruz,   we  determined   that  defense
                           

counsel's  response to the judge that he was not arguing mere

presence  did not  amount  to  a  clear offer  to  stipulate.

United  States v. Ferrer-Cruz, 899 F.2d at 139.  In addition,
                             

we found that,  far from  having removed the  issue from  the

case, the defense counsel  had actually argued mere presence.

Id.
   

          To prevent  the admission  of bad acts  evidence, a

defendant's offer to concede  knowledge and/or intent  issues

must  do two things.   First, the offer  must express a clear

and unequivocal intention to remove  the issues such that, in
                         

effect  if not in form, it constitutes an offer to stipulate.

Second,  notwithstanding  the  sincerity  of  the defendant's

offer, the  concession must cover  the necessary  substantive

ground  to remove the issues  from the case.   See generally,
                                                            

                             -36-
                              36

United  States v.  Colon, 880  F.2d at  658 (where  the court
                        

determined that the stipulation the defendant presented, even

if proffered  with sincerity, failed  to remove the  issue of

intent from the case).

          We begin  our analysis  by noting  that it  was not

only the  government which  requested the admission  of Pablo

Garcia's prior  arrest, but  defendant Jose Garcia,  as well.

The  two  statements of  concession raise  somewhat different

concerns, and we address each in turn.

          We  do  not  believe  that  the  defense  counsel's

statement as to Pablo  Garcia's knowledge of drug trafficking

amounted to an attempt  to stipulate, nor do we  believe that

it removed knowledge from the case.  First, the statement did

not rise to the level of  a clear offer to concede knowledge.

It was no  more than a  single response, among others,  in an

ongoing  discussion  with  the  court  about the  prejudicial

impact of  the  evidence.   By contrast  with the  successful

defendants in  both Figueroa  and Mohel, defense  counsel did
                                       

not pursue this concession  with the court at that  time, nor

did  he raise it  again.  See United  States v. Figueroa, 618
                                                        

F.2d  at 940  (where defense  counsel vigorously  pursued his

concessions with the court); United States v. Mohel, 604 F.2d
                                                   

at   752  (where  defense   counsel  repeatedly   offered  to

stipulate).   At  best,  defense counsel's  statement may  be

construed  as an  offer not  to argue  that defendant  had no
                                     

                             -37-
                              37

knowledge of the  workings of drug  trafficking.  In  Ferrer-
                                                             

Cruz, we observed that defense counsel's  comments suggesting
    

that the defendant  would not argue an  issue (mere presence)

were "quite different from saying that the judge may instruct

the  jury that,  should it  find such  presence, the  defense

w[ould]  not dispute  the 'knowledge'  or 'intent'  needed to

support the  conviction."  United States  v. Ferrer-Cruz, 899
                                                        

F.2d at 139.8 

          Second,  defense  counsel's   statement  of   Pablo

Garcia's relative knowledge about cocaine trafficking was not

the sort of concession which the trial judge reasonably could

be  expected  to assume  would  remove  the entire  issue  of

knowledge from this case.  At most, it was a limited offer to

                    

8 Courts which  permit the foreclosure of 404(b)  evidence by
concession   or  stipulation   generally  require   that  the
defendant  be willing to accept  a jury charge  to the effect
that the issue  has been  removed from the  case.  See  e.g.,
                                                            
United States  v. Colon, 880 F.2d  at 659;  United  States v.
                                                          
Figueroa,  618 F.2d at  942.  Exactly  who has  the duty, the
        
defense counsel or the court, to suggest such an instruction,
however, remains unclear.  Figueroa seems to suggest that, so
                                   
long  as  the  defendant  raises the  issue  with  sufficient
clarity,  the judge must then remove the issue from the case,
by disallowing  subsequent cross-examination,  and by  a jury
charge.  See United States v. Figueroa, 618 F.2d at 942.  Our
                                      
decision in Ferrer-Cruz places the burden more clearly on the
                       
defendant, as evident  in the above-cited  excerpt.  In  this
case, we do not need to  reach the issue because we find that
defendant's  statement  was  not  a  clear  offer  to  remove
knowledge from the case.  We merely instruct that an offer to
concede  an  issue which  also asks  for  a jury  charge will
appear  more sincere  and unequivocal,  and will  assist both
trial and reviewing courts in assessing such concession.  

                             -38-
                              38

foreclose certain  inferences that the jury  might have drawn

as to knowledge.  

          Finally, knowledge  remained a focal  issue in  the

case, and  one vigorously contested by the  defendant.  Pablo

Garcia's defense was  that he did not know of the presence of
                                          

the cocaine in  the closet of the  room he inhabited.   Pablo

Garcia also argued that  he did not  know of the presence  of

the drug paraphernalia that was  openly visible in the  small

apartment.    

          We  turn   next  to  defense   counsel's  offer  to

stipulate  to intent to distribute.  By contrast with defense

counsel's   statement  as   to   knowledge,  this   statement

constituted a clear and unequivocal offer to stipulate to one

essential  element  of the  case:    the specific  intent  to

distribute.  Conceding the  specific intent to distribute did

not, however, affect  the relevance of  the evidence to  show

defendant's  knowledge and  intent  to possess  the  cocaine.

Defense  counsel conceded  intent to  distribute if  the jury

found  possession.    Because there  remained  an independent

basis for admission of the

evidence--the defendant's knowledge and intent to possess

the cocaine--the district court did not err in its failure to

consider the defendant's offer to stipulate in this instance.

                             -39-
                              39

          The  effect  of stipulations  on  the  admission of

404(b)  evidence  is confronting  us  more  frequently.   We,

therefore,  proffer some  guidance in  this area.   We  note,

first of all, that a serious offer to concede or stipulate to

issues of intent  and/or knowledge should be  explored by the

district court.  In the final analysis, however, whether such

an offer is accepted  remains in the sound discretion  of the

district  judge.  If the  judge determines that  the offer is

acceptable, the  judge should take  steps to assure  that the

defendant  is aware of the contents of the stipulation and of

its  implications  before  directing  the jury  that  it  may

resolve the issue against the defendant.  

          Second,   from  a   survey  of   the  circuits   on

stipulations  in  the  area   of  404(b)  evidence,  we  have

ascertained  a  preference  for  handling the  matter  before

trial,  or  early in  the trial  process.   See  e.g., United
                                                             

States  v.   Cardenas,  895   F.2d  1338,  1342   (11th  Cir.
                     

1990)(noting that  the defendant did nothing  before trial to

alert the government that it would not need to prove intent);

United States v. Manner,  887 F.2d 317, 322 (D.C.  Cir. 1989)
                       

(relying  in part  on the  fact that  the defendant  "had not

offered  explicitly in  any pretrial  hearings or  motions to

stipulate or  concede the  intent issue"), cert.  denied, 493
                                                        

U.S.  1062 (1990); United States v.  Franklin, 704 F.2d 1183,
                                             

1188  (10th  Cir.) (noting  the  absence  of any  enforceable

                             -40-
                              40

pretrial assurance  that the  issue would not  be contested),

cert.  denied, 464  U.S. 845  (1983).   Cf. United  States v.
                                                          

Miller,  974 F.2d  953,  960 (8th  Cir.  1992) (declining  to
      

overturn  the district  court  on the  basis of  "defendant's

ambiguous, last minute suggestion" to enter into an agreement

with the government on  intent).  Although we are  mindful of

the   importance of some  flexibility in this  area, we favor

the practice of handling stipulations  either pretrial, which

is preferable, or shortly  after the trial has begun  for the

sake of clarity both at trial and on review. 

          Affirmed. 
          Affirmed.
                  

                             -41-
                              41
