
USCA1 Opinion

	




          September 14, 1995                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1858                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                       GERALD RODRIGUEZ, a/k/a/ JOSE RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this  Court issued on August 28, 1995 is  corrected        as follows:            On page 12,  second paragraph, line  5, substitute  "defaults" for        "defalcates."                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-1858                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                       GERALDO RODRIGUEZ, a/k/a JOSE RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                         Selya, Cyr and Lynch, Circuit Judges.                                               ______________                                 ____________________            Andrew Grosso for appellant.            _____________            Mervyn  Hamburg,  Senior  Counsel,  United  States  Department  of            _______________        Justice, with whom Sheldon Whitehouse, United States  Attorney, was on                           __________________        brief for the United States.                                 ____________________                                   August 28, 1995                                 ____________________                      LYNCH, Circuit Judge.   Geraldo Rodriguez seeks  to                      LYNCH, Circuit Judge.                             _____________            set aside his conviction for conspiracy to distribute heroin,            contending that he  was not  brought to trial  within the  70            days prescribed by  the Speedy Trial  Act ("STA"), 18  U.S.C.               3161 et  seq., and that  two evidentiary rulings  at trial                    ________            were  in  error.     Rodriguez  also  appeals  his  sentence,            contending that  the district court engaged  in impermissible            "double counting" when it departed upward based on the purity            of the  heroin he was  convicted of conspiring  to distribute            while   simultaneously   enhancing  his   sentence   for  his            leadership role.  The conviction and sentence are affirmed.                                    I.  Background                                        __________                      Geraldo  "Jose"  Rodriguez  and   his  co-defendant            Juvenal  Grajales arranged the sale of a total of 97.65 grams            of very pure heroin  (87% to 96% pure) to  a DEA confidential            informant named Miguel Teixeira on four occasions in February            and April,  1993.   Teixeira recorded his  conversations with            Rodriguez  about the  particulars of  these drug  deals at  a            number of  pre-arranged meetings.   At some of  the meetings,            Rodriguez was accompanied by Grajales or other associates; at            others,   Rodriguez  sent   associates  to  assist   with  or            consummate the transactions.                      Rodriguez and Grajales  were arrested and  indicted            for  distribution of  heroin,  distribution  of cocaine,  and            conspiracy  to  possess heroin  and  cocaine  with intent  to                                         -2-                                          2            distribute.   Following a period of  pretrial motion practice            and  discovery (set forth  in the Appendix  that follows this            opinion), trial  was scheduled  for September  23, 1993.   On            September 22, 1993, the district court accepted a guilty plea            from  Grajales.  On September  23, a jury  was empaneled (but            not sworn) in Rodriguez's case and trial  was set to begin on            September 30, 1993.  On that day, before the jury was  sworn,            Rodriguez  disputed   the   adequacy  of   the   government s            disclosures concerning  the  background of  its  key  witness            Teixeira, the DEA informant.   Rodriguez demanded that  he be            provided  with additional  information.  The  district court,            accommodating  Rodriguez s position,  dismissed the  jury and            adjourned  the  trial  pending resolution  of  the  discovery            issue.                      Some  two  weeks   later,  on  October  19,   1993,            Rodriguez's trial counsel filed a motion to withdraw from the            case.   The motion was  granted after hearing,  and the court            allowed Rodriguez time to  obtain new counsel.  In  November,            Rodriguez's  newly  retained  counsel Barry  Wilson  filed an            appearance and, later, a motion for admission pro hac vice in                                                          ___ ___ ____            the  District  of Rhode  Island.    This proved  problematic.            Based on a contempt order that had been issued against Wilson            in an  unrelated matter before Judge  Pettine, the government            opposed the pro  hac vice motion.  A hearing  was not held on                        ___  ___ ____            the motion until February 22, 1994.  The motion was allowed.                                         -3-                                          3                      That same  day Rodriguez filed a  motion to dismiss            the indictment on  grounds that  he had not  been brought  to            trial within 70 days as required by the STA.  That motion was            later denied in a bench ruling.                      Trial commenced on May  12, 1994.  At the  close of            the government's case, the district court granted Rodriguez's            motion for judgment of  acquittal with respect to Count  2 of            the  indictment,  which  charged  conspiracy   to  distribute            cocaine.  At the  conclusion of the five-day trial,  the jury            returned  a   guilty  verdict  on  Count   1  (conspiracy  to            distribute heroin)  but  acquitted  Rodriguez  on  all  other            counts (distribution of heroin; distribution of cocaine).                      At sentencing,  after concluding  that both  a two-            level leadership role enhancement and an additional two-level            drug-purity  upward departure  were  warranted, the  district            court imposed  a sentence  of 121  months imprisonment to  be            followed  by 5 years  supervised release,  and a  $50 special            assessment.                             II.  Speedy Trial Act Claim                                  ______________________                      Rodriguez's STA claim  raises questions of  whether            certain time consumed in connection with pretrial motions and            jury  empanelment   is  excludable  from  the  requisite  STA            calculations.       Factual   findings   underlying   a   STA            determination  are  reviewed  for clear  error,  while  legal            rulings are reviewed de novo.  See United States v. Storm, 36                                 __ ____   ___ _____________    _____                                         -4-                                          4            F.3d 1289, 1292  (5th Cir.  1994), cert. denied,  115 S.  Ct.                                               ____________            1798  (1995); United States  v. Henderson, 746  F.2d 619, 622                          _____________     _________            (9th Cir. 1984), aff'd, 476 U.S. 321 (1986).                             _____                      The STA  requires that a defendant  be tried within            70  days of the filing  of the indictment  or the defendant's            first appearance before a  judicial officer, whichever occurs            later.  See  Henderson v.  United States, 476  U.S. 321,  322                    ___  _________     _____________            (1986).  The remedy for  violation of the 70-day  requirement            is  dismissal  of  the  indictment  either  with  or  without            prejudice,  depending on  consideration of  several statutory            factors.    See  18  U.S.C.   3162(a)(2);  United  States  v.                        ___                            ______________            Ramirez, 973 F.2d 36, 39 (1st Cir. 1992).  Not every day that            _______            passes between  indictment or appearance and  trial, however,            counts toward  the 70-day limit.   The Act  itself enumerates            various  circumstances that  can suspend  the running  of the            time.   See 18 U.S.C.    3161(h).  The  question presented is                    ___            whether  the  total  amount  of  non-excludable  time between            indictment  or  judicial appearance  and  the  filing of  the            pretrial  motion suggesting  a  STA  violation  exceeded  the            statutory limit of 70 days.                      The metaphor  of a running  clock is often  used in            STA cases.   The metaphorical clock  here started running  on            June  4, 1993, the day  after the indictment,  and stopped on            February  22, 1994, the day Rodriguez  filed his speedy trial            motion,  which  was not  renewed  before trial.    See United                                                               ___ ______                                         -5-                                          5            States  v.  Connor, 926  F.2d 81,  84  (1st Cir.  1991) ("[A]            ______      ______            motion  for dismissal [under  the STA] is  effective only for            periods  of time  which antedate  the filing  of the  motion.            Subsequent   periods  of   delay,   whether   includable   or            excludable, are inconsequential.").                      There  is no  dispute  that three  days devoted  to            miscellaneous    proceedings    concerning   Rodriguez    are            excludable.*   The  battle lines  are thus  drawn around  the            remaining  period of 260 days, and the question is whether at            least 190 of those days were excludable.  The answer is yes.                      Much   of  Rodriguez's   attack  focuses   on  time            associated with pretrial  motions.  The ground  rules are set            by  the  statute  and  Supreme  Court  case  law.     Section            3161(h)(1) of the Speedy Trial Act provides for the exclusion            of any                          (F)      delay  resulting   from  any                      pretrial motion,  from the filing  of the                      motion  through  the  conclusion  of  the                      hearing on, or  other prompt  disposition                      of, such motion; [and]                                . . .                          (J)  delay reasonably attributable to                      any  period, not  to exceed  thirty days,                      during  which  any proceeding  concerning                      the    defendant   is    actually   under                      advisement by the court.            18 U.S.C.   3161(h)(1)(F), (J).                                    ____________________        *The parties agree  that the  following days are  excludable under  18        U.S.C.   3161(h)(1): the day  of arraignment (June 14, 1993),  the day        on  which Rodriguez's  co-defendant Grajales  submitted a  guilty plea        (September  22,  1993);  and the  day  on  which  the first  jury  was        empaneled (September 23, 1993).                                         -6-                                          6                      There   are   significant   differences    in   the            excludability  of  delays  attributable  to  motions afforded            hearings and those decided without hearing.  Such differences            result from  the interplay  between subsections (F)  and (J).            In  Henderson v.  United  States, 476  U.S.  321 (1986),  the                _________     ______________            Supreme  Court held  that  under subsection  (F), the  entire                                                                   ______            period  beginning from the filing of a pretrial motion to the            conclusion of the hearing on that motion  is excludable time.            See id. at 328-31; see also United States v. McAfee, 808 F.2d            ___ ___            ________ _____________    ______            862, 864 (1st Cir. 1986).  Once the hearing on  the motion is            concluded, subsection  (J) limits  the  amount of  excludable            time while the motion is "under advisement" to 30  days.  See                                                                      ___            Henderson, 476 U.S.  at 328-329; United  States v. Ortiz,  23            _________                        ______________    _____            F.3d 21, 27  & n.6 (1st Cir. 1994); United  States v. Wilson,                                                ______________    ______            835 F.2d 1440, 1442 (D.C. Cir. 1987).                      When  there is no hearing, a motion is deemed to be            taken  under  advisement when  "the  court  receives all  the            papers it reasonably expects . . . ."  Henderson, 476 U.S. at                                                   _________            329; see also United States v. Johnson, 29 F.3d 940, 944 (5th                 ________ _____________    _______            Cir. 1994).    Thus, for  a motion  that does  not receive  a            hearing, subsections (F) and (J) in conjunction allow for the            exclusion of all of the time from the filing of the motion to            the  time that  the  court receives  all reasonably  expected            papers, plus no more than an additional 30 days of advisement            time.  See Johnson, 29 F.3d at 944; see also Wilson, 835 F.2d                   ___ _______                  ________ ______                                         -7-                                          7            at  1442  ("[Sections 3161(h)(1)(F)  and (J)]  taken together            thus exclude the time between filing of a motion and the date            it  is taken  under advisement  by the  court, plus  the time            during which the court holds the motion under advisement  (up            to 30 days).").                      The chronology against which the STA clock runs and            stops according to  these rules in this case  is set forth in            the Appendix.   Pursuant  to Henderson and    3161(h)(1)(F) &                                         _________            (J), the  entire 75-day  period from  the  December 10,  1993            filing  of the pro hac  vice motion of  his new counsel until                           ___ ___  ____            the   hearing  on   that  motion   (February  22,   1994)  is            excludable.**  The  date on  which the motion  was filed  and            the  date on  which it  was heard  are also  excludable days.            United  States v. Papaleo, 853  F.2d 16, 21  (1st Cir. 1988).            ______________    _______                                    ____________________        **There is some confusion in  the briefs and in the record  as to when        Barry Wilson's pro  hac vice motion actually was  filed.  For purposes                       ___  ___ ____        of this appeal,  we assume the motion was filed  on December 10, 1993,        the  date indicated  on the  district court  docket sheet.    It bears        comment, however, that more than 45  days passed between the time that        the district court granted the motion of Rodriguez's former counsel to        withdraw  from the case  and the filing  of the pro  hac vice motion                                                          ___  ___ ____        even  though the court had  expressly ordered Rodriguez  to obtain new        counsel  within 10  days  of the  withdrawal.   Although  new  counsel        purported to file an "appearance" on November 4, 1993, that appearance        was plainly in  violation of the  district court's  local rules.   See                                                                           ___        D.R.I. Loc. R. 5(c)  (permitting appearance of non-member of  bar only        on  admission pro  hac  vice).   Conceivably,  either the  November  4                      ___  ___  ____        "appearance" by Wilson or  the December 1 appearance by  local counsel        on behalf of Wilson could be treated functionally as the date on which        the pro hac vice motion  was filed.  In any case, there is substantial            ___ ___ ____        reason  to doubt whether the STA clock  was running during the 35 days        that  Rodriguez,  in  violation  of  the  court's  order,  delayed  in        retaining appropriate counsel of record.  For purposes of this appeal,        however, we put that issue to one side.                                         -8-                                          8            Similarly, the bail motion  filed on October 13,  1993 (which            did not receive a hearing nor, apparently, an express ruling)            resulted  in at  least an  additional 30  days of  excludable            time.  See Ortiz, 23 F.3d at 27 n.6 (pretrial motion to which                   ___ _____            no opposition was  filed, which did not  receive hearing, and            was never ruled upon  created at least 30 days  of excludable            time);  see also Johnson, 29  F.3d at 945  (same).  Excluding                    ________ _______            the  delays attributable  to  these motions  reduces the  STA            count to 155 days.                      The events  that unfolded in  late September,  1993            further reduce the count.  On September 23, 1993, Rodriguez's            case  was called to trial, and  a jury was empaneled, but not            sworn.   One week later, as  the trial was about  to begin in            earnest, a  last-minute discovery  wrangle caused  the still-            unsworn jury to be  dismissed and the trial to  be postponed.            The  issue is how to  treat the one-week  interim between the            jury's empanelment and its unexpected dismissal.                      It  is settled that trial generally "commences" for            Speedy Trial Act purposes  on the day the jury  is empaneled,            even  if  not sworn.   See  Government  of Virgin  Islands v.                                   ___  ______________________________            Duberry,  923  F.2d  317, 320  (3d  Cir.  1991)  (STA is  not            _______            violated so  long as jury selection occurs  within the 70-day            period, even  if swearing  occurs outside the  period), cert.                                                                    _____            denied, 115 S. Ct. 370 (1994); United States v. Fox, 788 F.2d            ______                         _____________    ___            905,  908-09 (2d Cir. 1986)  (same); United States v. Scaife,                                                 _____________    ______                                         -9-                                          9            749  F.2d 338, 343 (5th  Cir. 1984) (same);  United States v.                                                         _____________            Manfredi,  722 F.2d 519,  524 (9th Cir.  1983) (same); United            ________                                               ______            States v. Gonzalez,  671 F.2d 441 (11th  Cir.), cert. denied,            ______    ________                              ____________            456 U.S. 994 (1982);  cf.  United States v. Rojo-Alvarez, 944                                  ___ ______________    ____________            F.2d 959, 965  (1st Cir. 1991) (dictum)  (suggesting that the            STA  clock   was  "definitively  stopp[ed]"  when   jury  was            empaneled); United States  v. Zayas, 876 F.2d 1057, 1058 (1st                        _____________     _____            Cir.  1989) (noting the  parties' agreement  that STA  is not            violated if jury empanelment  occurs within the 70-day period            even if actual trial commences outside the period, so long as            ____ __            the  empanelment is not "pretextual").   Here, as  far as the            record reflects,  the parties  and the  court expected  as of            September  23 that, following a brief recess of one week, the            empaneled jury would be sworn  and that opening arguments and            testimony would get underway on September 30.   Arguably, the            September 23, 1993  jury empanelment ended the running of STA            time.  Cf.  Duberry,  923 F.2d at 320 ("The Speedy  Trial Act                   ___  _______            does not  require that  once a  trial  commences it  continue            without  interruption  . . . .").   Before  September  30 the            parties  and the court had  every reason to  believe that the            STA  clock  had ceased  ticking on  September  23.   In these            circumstances, we conclude that, at a minimum, the STA  clock            did  not run  during  the 6-day  interim  between the  jury's            empanelment and its dismissal.   Subtracting this time brings            the STA tally to 149 days.                                         -10-                                          10                      We  turn next  to the  proceedings of  September 30            that unexpectedly  halted the  trial.  That  day, before  the            jury was  sworn, Rodriguez's counsel  raised discovery issues            with  the  trial  judge,  contending  that  the  government's            disclosure   of  information   concerning  its   key  witness            (Teixeira) had been sorely  inadequate.  Rodriguez asked that            the  court   order  the  government  to   produce  additional            information.  The district  court, apparently seeing merit in            Rodriguez's  claim, decided  to  dismiss the  jury.   Defense            counsel then asked  the district  court, "Judge,  will it  be            necessary  to file a more detailed request . . .?"  The court            replied,  "Well, you  take the  time you  need and  study the            problem, then  let me know what you need, all right?"  Twelve            days later,  on October 12,  1993, Rodriguez filed  a "Motion            for Exculpatory Evidence" concerning Teixeira.                      Rodriguez's request for  additional information  at            the  September 30, 1993  proceedings was  an oral  motion for            supplemental  discovery,  which  triggered  the  exclusionary            provisions of   3161(h)(1)(F).   See United States  v. Noone,                                             ___ _____________     _____            913 F.2d  20, 27 (1st Cir. 1990) (an oral motion no less than            a written one creates excludable time under   3161(h)(1)(F)),            cert. denied, 500  U.S. 906 (1991);  accord United States  v.            ____________                         ______ _____________            Pasquale, 25 F.3d 948, 950-51 (10th Cir. 1994); United States            ________                                        _____________            v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993); United States v.               ________                                  _____________            Louis,  814 F.2d 852, 857 (2d Cir. 1987).  Alternatively, the            _____                                         -11-                                          11            period between Rodriguez's September  30 oral request and the            filing of his October 12 written motion can be viewed as time            set aside by  the district court as  motion preparation time,            which  also  would be  excludable  under    3161(h)(1).   See                                                                      ___            United  States v. Jodoin, 672  F.2d 232, 238  (1st Cir. 1982)            ______________    ______            (allowing STA  exclusion for period between  defendant's oral            request for time to file motion and actual filing of motion);            cf. United States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir.            ___ _____________    ______            1990)  (recognizing  excludability   of  time  designated  by            district court as motion preparation time).   Either way, the            entire 13-day period from  September 30, 1993 through October            12, 1993 is excludable time.  In light of this conclusion, we            need not  address whether the adjournment  resulting from the            September 30 proceedings  would be excludable as  an "ends of            justice"  continuance under the STA.   Had the district court            so intended, however, it would have been preferable for it to            have  made an express finding  on the record,  as directed by            the statute,  explaining why the  "ends of justice  served by            the  granting  of  such  continuance  outweigh[ed]  the  best            interests of the public and the defendant in a speedy trial."            18 U.S.C.   3161(h)(8)(A); see United States v. Bruckman, 874                                       ___ _____________    ________            F.2d 57,  62 (1st Cir. 1989) (encouraging  district courts to            make  the  requisite  findings,   but  noting  that  in  some            circumstances, failure  to state the findings  for the record            does not preclude excludability).   In any event, subtracting                                         -12-                                          12            the time between the September 30  adjournment and the filing            of  the October 12 discovery  motion brings the  STA tally to            136 days.***                      There remains  at least  one  additional source  of            excludable  time    the discovery  motion Rodriguez  filed on            June  16, 1993.    Determining how  much  excludable time  to            attribute to this  motion presents a  novel question in  this            Circuit: how to treat a delay when the government defaults on            its obligation to respond to a defendant's motion by a court-            ordered deadline.  Rodriguez's  motion was filed on  June 16,            1993 and did  not receive  a hearing.   The magistrate  judge            overseeing   the  pretrial   proceedings   had  ordered   the            government to file  any opposition  by July 23,  1993.   Yet,            inexplicably, the government's opposition was not filed until            September  2, 1993.  The government has not disputed that its            opposition was untimely;  nor has it  pointed to anything  in            the record  that  would justify  the  delay.   Still,  citing            Henderson, the  government contends that all of the time from            _________                                ___            the  filing of the June 16, 1993  motion to the filing of its            untimely response on September 2, 1993, plus an additional 30                                                    ____            days of  advisement time,  should be deemed  excludable under              3161(h)(1)(F) and (J).  Rodriguez disagrees, asserting that                                    ____________________            ***Because the period of  excludable time attributable to the            October 12,  1993 written  motion wholly overlaps  the period            independently excluded by virtue of the October 13, 1993 bail            motion,  the October 12 motion  does not result  in any extra            excludable time, except for the single day of October 12.                                         -13-                                          13            the excludable time should be limited to the period from June            16  to July 23 (the date on which the government's opposition            was due), plus an additional 30 days of advisement time after                ___            that due date.                      There   are   considerable   reasons    to   credit            Rodriguez's  position.   The  government's  broad reading  of            Henderson is hardly sensitive to the purposes of the STA.  To            _________            be sure, Henderson creates an expansive rule of exclusion for                     _________            delays attributable  to the hearing of pretrial motions.  But            we  doubt that Henderson or the Speedy Trial Act itself would                           _________            permit  treating  as   excludable  time  an   extended  delay            attributable solely  to the government's unexcused failure to            comply with  a court-ordered briefing schedule.   The dangers            of  potential  abuse lurking  behind  such  a broad  rule  of            exclusion are plain.                      A   more  sensible  rule   might  provide  for  the            termination of excludable time under   3161(h)(1)(F) upon the            due date of the  opposition to a defendant's pretrial  motion            ________            that does  not receive  a hearing, absent  circumstances that            would  reasonably justify a late filing.  The Seventh Circuit            adheres to just such a "due date" rule.  See United States v.                                                     ___ _____________            Thomas,  788 F.2d  1250, 1259 (7th  Cir.), cert.  denied, 479            ______                                     _____________            U.S. 853  (1986); see  also United  States v.  Baskin-Bey, 45                              _________ ______________     __________                                         -14-                                          14            F.3d 200, 203 (7th Cir. 1995), cert. denied, 115  S. Ct. 1809                                           ____________            (1995).****     Under  that   court's  approach,  a  pretrial            motion that does not receive a hearing is deemed to be "under            advisement"  on the  date the  government's response  is due,            even  if the  response  has not  actually  been filed.    See                                                                      ___            Thomas, 788 F.2d at  1259.  Thus, as  of the due date  in the            ______            Seventh  Circuit,   3161(h)(1)(F) ceases to create excludable            time  for a motion that  receives no hearing,  and the 30-day            period of excludable  "advisement" time under   3161(h)(1)(J)            begins; after that 30-day period, the STA clock begins to run            again.  See id.                    _______                      The  Thomas  rule  is commended  by  fairly obvious                           ______            considerations  of policy.  See Thomas, 788 F.2d at 1259 ("If                                        ___ ______            the entire  period [of  delay attributable to  a government's            late  filing]  were  excluded,  a   prosecutor  could  obtain            indefinite  exclusions  of  time  by  the  expedient  of  not            responding  to  . . .  motions.    That  would  undercut  the            structure of the Speedy  Trial Act.").  For several  reasons,            however, we leave for another day whether to adopt the Thomas                                                                   ______            "due date"  rule  as the  law  of this  Circuit.   First  and            foremost, we  need not  decide definitively whether  to adopt                                    ____________________            ****The Fifth  Circuit appears to differ.   See United States                                                        ___ _____________            v.  Martinez-Mercado, 888  F.2d  1484, 1493  (5th Cir.  1989)                ________________            (rejecting appellant's  contention that Speedy Trial Act does            not exclude  time between  due date of  government's response            under local  rules  and  actual  filing date).    The  Second            Circuit has left  the question  open.  See  United States  v.                                                   ___  _____________            Adeniji, 31 F.3d 58, 66 (2d Cir. 1994).            _______                                         -15-                                          15            the  "due date" rule in this case, because even applying that            rule, the  number of non-excludable days  within the relevant            STA period is less than 70: between the filing of the June 16            motion and  the due date of the  opposition (July 23) fell 38            days  excludable under    3161(h)(1)(F).   Adding 30  days of            excludable    "under    advisement"    time    pursuant    to              3161(h)(1)(J),  the total  excludable time  attributable to            the June  16 motion  under the  "due date"  rule would be  68            days.  Subtracting this  time from the STA tally  reduces the            count to 68 days, under the 70-day limit.  Second, the record            before us  is unclear as  to whether  there were in  fact any            reasons for the government's  late filing.  Third, it  is not            evident that  Rodriguez ever brought the  untimeliness of the            government's  opposition to  the district  court's attention.            Cf.  United States v. Welborn, 849 F.2d 980, 986-87 (5th Cir.            ___  _____________    _______            1988) (expressing  concern  that the  Seventh Circuit's  "due            date" rule might "permit a defendant to remain silent after a            deadline imposed  on the prosecution had elapsed and permit a            Speedy Trial Act  violation to accrue  without notice to  the            prosecution or the court").                      Finally, we  reject Rodriguez's assertion  that his            June 16 motion did not generate any excludable time from June            16  to July 13.   His argument  purports to be  built upon 18            U.S.C.    3161(c)(2), which  some  courts have  understood to            prohibit  commencement of a trial sooner than 30 days after a                                         -16-                                          16            defendant's  arraignment  or indictment.   See,  e.g., United                                                       __________  ______            States v. Daly, 716 F.2d 1499, 1504-05 (9th Cir. 1983), cert.            ______    ____                                          _____            dismissed,  465  U.S. 1075  (1984).    From this  reading  of            _________              3161(c)(2), Rodriguez argues that  his trial could not have            commenced  before July 14, 1993  and that his  June 16 motion            therefore could  not have produced  any actual "delay"    and            hence no excludable time   before that date.  Whether or  not            Rodriguez's   suggested   construction  of     3161(c)(2)  is            correct, his argument is  unavailing.  The argument rests  on            the premise that a  motion which causes no actual  delay of a            trial date  does not  trigger   3161(h)(1).   However, it  is            clear in this  Circuit as  in others that  the exclusions  of              3161(h)(1)(F) and  (J) are  "automatic," and do  not depend            upon any showing of actual delay.  See United States v. Rush,                                               ___ _____________    ____            738 F.2d 497,  502 (1st  Cir. 1984), cert.  denied, 470  U.s.                                                 _____________            1004 (1985); see also United States v. Montoya, 827 F.2d 143,                         ________ _____________    _______            151  (7th Cir. 1987);  United States  v. Velasquez,  802 F.2d                                   _____________     _________            104,  105 (4th Cir. 1986);  United States v.  Novak, 715 F.2d                                        _____________     _____            810, 813 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984).                                     ____________                      To  summarize, the  following periods  of time  are            excludable under   3161(h):  the single day of  June 14, 1993            (arraignment);  at  least 68  days  following  the filing  of            Rodriguez's discovery motion on June 16, 1993; the single day            of September  22, 1993 (co-defendant's  submission of  plea);            the 7-day period from September 23 through September 29, 1993                                         -17-                                          17            (jury empanelment and trial "commencement"); at least 30 days            following the September 30,  1993 oral request for additional            discovery;  the 13 of the  30 days following  the October 13,            1993 bail motion that  do not overlap with the  time excluded            for  the September  30  oral motion;  and  the 75-day  period            between the December  10, 1993  pro hac vice  motion and  the                                            ___ ___ ____            hearing  on that motion.   Excluding these 195  days from our            starting count of 263 leaves only 68 nonexcludable days.                      We  need go no further.  The district court did not            err in  denying Rodriguez's motion to  dismiss the indictment            for violation of the STA.                               III.  Evidentiary Issues                                     __________________            A.  Admissibility of Audiotape                __________________________                      Teixeira,  the  government's testifying  informant,            taped his meetings with Rodriguez using a concealed recording            device.  A total  of eight tapes were admitted  into evidence            at  trial.   Rodriguez  contends  that  the district  court's            admission  of  one  of  these  tapes  (Gov.  Exhibit  7)  was                           ___            reversible  error, for  three  reasons: (1)  the tape,  which            purported to be a recording of a meeting between Teixeira and            Rodriguez  on   February   19,   1993,   was   not   properly            authenticated; (2)  the tape  contains hearsay statements  by            Teixeira;  and  (3) the  tape contains  some words  spoken in            Spanish, creating a danger of jury confusion.                                         -18-                                          18                      There was  no abuse of discretion  in admitting the            tape over  Rodriguez's  authenticity objection.   See  United                                                              ___  ______            States v. Font-Ramirez,  944 F.2d 42, 46-47  (1st Cir. 1991),            ______    ____________            cert. denied, 502 U.S. 1065 (1992).  First,          Teixeira            ____________            identified it as the  tape he recorded during a  meeting with            Rodriguez on February 19, 1993, and Teixeira stated  that the            tape fairly and accurately  reflected that meeting.  Teixeira            further  testified  that  he  had listened  to  the  tape and            verified  that his  own voice  was on  it.   Other government            witnesses confirmed  that Teixeira met with  defendant on the            relevant date, that Teixeira was wired to record the relevant            meeting, that Teixeira gave the  tape to the DEA surveillance            team following the meeting, and that the tape passed  through            a  clean chain of custody preceding trial.  Cf. United States                                                        ___ _____________            v. Rengifo, 789 F.2d  975, 978 (1st Cir. 1986)  (holding that               _______            tape  can be  properly  authenticated by  someone other  than            participant in the recorded conversation).  Rodriguez offered            no  evidence that the tape was somehow inaccurate or had been            altered.  See United  States v. Carbone, 798 F.2d 21, 24 (1st                      ___ ______________    _______            Cir. 1986).                      Rodriguez's  other objections  to admission  of the            tape also fail.  His hearsay objection falters because he did            not make  it at  trial, arguing  only a  foundation objection            there.  Admission of the tape was not plain error.  His final            claim,  that the presence of  some Spanish words  on the tape                                         -19-                                          19            created a danger that some of the jurors might  have tried to            act as  interpreters for  other jurors, is  sheer speculation            and provides no basis for reversal.                      Any   alleged  error  in  admitting  the  tape  was            harmless in any event.   The jury acquitted defendant  of all                                              _________            counts except for the count charging conspiracy to distribute            heroin.   There  was  a  wealth  of  evidence  to  support  a            conviction  on that  count that  had nothing  to do  with the            disputed  tape,  including  Teixeira's  live  testimony,  the            testimony of  other surveilling officers,  and several  other                                                                    _____            tape  recorded conversations  between Teixeira  and Rodriguez            whose admissibility are not challenged here.            B.  Limitation of Impeachment Evidence                __________________________________                      During  cross-examination  of  Teixeira  at  trial,            Rodriguez's  counsel exposed the fact that in January, 1993              shortly  before  the  start  of the  operation  that  led  to            defendant's arrest   Teixeira  had been convicted of perjury.            As Rodriguez s counsel  explored this skeleton in  Teixeira s            closet,  there  arose  some  question  about  precisely  when            Teixeira had served the 90-day home confinement sentence that            had attached to his conviction.   Teixeira testified that  he            had already served his sentence as of the date of Rodriguez's            trial  (May  1994),  but  could not  remember  exactly  when.            Rodriguez,  in presenting  his  own  case, called  Teixeira's            probation officer to the stand.  His testimony suggested that                                         -20-                                          20            Teixeira had not in fact served his home confinement sentence            by May 1994.   Seeking further to impeach  Teixeira s already            damaged credibility,  Rodriguez then moved  for production of            certain   correspondence  in  the  possession  of  Teixeira's            probation officer that might  indicate exactly when  Teixeira            had served his 90-day sentence.  The court denied Rodriguez's            request for the probation documents.                      The district court's decision not  to let Rodriguez            pursue the  collateral question  of when Teixeira  had served            his perjury sentence is unassailable.   The court had already            permitted  Rodriguez ample  opportunity to  impeach Teixeira,            and it  is unlikely that  the probation documents  would have            added  anything to  the jury s  ability to  assess Teixeira s            truthfulness.   The  district court  has broad  discretion to            limit the extent to which a defendant is permitted to impeach            a witness, see  United States  v. Fortes, 619  F.2d 108,  118                       ___  _____________     ______            (1st  Cir. 1980), and there  was no abuse  of that discretion            here.  See United  States v. Tejada,  886 F.2d 483, 488  (1st                   ___ ______________    ______            Cir. 1989).                                IV.  Sentencing Issues                                     _________________                      The  district court added a two-level adjustment to            Rodriguez's  base  offense level  in view  of  his role  as a            manager,   supervisor,  or   leader  of   criminal  activity.            U.S.S.G.   3B1.1(c).   This  enhancement resulted in  a total            offense level of 28, which  yielded (given a criminal history                                         -21-                                          21            category  of  I),  a  guidelines sentencing  range  of  78-97            months.  The court  then departed upward from that  range (by            the equivalent  of two  offense levels) pursuant  to U.S.S.G.              2D1.1, comment. (n.9) and    5K2.0, in consideration of the            unusually high  purity of the  drugs that defendant  had been            dealing.    Consequently, the  court  imposed  a sentence  of            imprisonment of 121 months.                      Rodriguez's  claim  that  there   was  insufficient            evidence  to support  a finding  that he played  a leadership            role for  purposes of  U.S.S.G.   3B1.1(c) is  without merit.            The district court s finding, made with the benefit of all of            its observations at trial, is entitled to, and is given here,            considerable  deference.   See United  States v.  Andujar, 49                                       ___ ______________     _______            F.3d 16, 25 (1st Cir.  1994).  We see no basis  for declaring            that finding to be clearly erroneous.                      Rodriguez s  next complaint,  that  he  received  a            substantially   heavier   sentence   than  his   co-defendant            Grajales, is  also without  merit.  Absent  misapplication of            the  Guidelines,  the mere  fact of  the  disparity is  of no            consequence.   See  United States  v.  Wogan, 938  F.2d 1446,                           ___  _____________      _____            1448-49  (1st  Cir.),  cert.  denied, 502  U.S.  969  (1991).                                   _____________            Besides,  the  difference is  easily  explained.   Rodriguez,            unlike  Grajales  (who  pleaded  guilty  before   trial)  was            sentenced against  the backdrop of  a full trial  record that            exposed in sharp  focus the complete  extent of his  criminal                                         -22-                                          22            behavior.   Cf. United States v.  Rodriguez-Cardona, 924 F.2d                        ___ _____________     _________________            1148, 1160-61 (1st Cir.), cert. denied, 502 U.S. 809 (1991).                                      ____________                      Rodriguez s  final complaint  is that  his sentence            was twice enhanced  for the  same or similar  aspects of  his            criminal conduct through the  simultaneous imposition of  the            leadership-role  enhancement  and   the  drug-purity   upward            departure.  Rodriguez  focuses this double-counting  argument            on  application note 9  to U.S.S.G.    2D1.1,  which explains            that a  drug's high purity  "is probative of  the defendant's            role  or position  in  the chain  of distribution."  U.S.S.G.              2D1.1,  comment.  (n. 9).   From  this language,  Rodriguez            argues  that an  upward  departure based  on  drug purity  is            duplicative of a leadership role enhancement.                      In this case however,  the district court's finding            of  leadership role  did  not depend  upon an  inference from            heroin  purity.    Rather,  the  court  found  directly  that            Rodriguez "used his mules and lackeys to  make deliveries for            him  and [that]  he  exercised leadership  in  some of  these            deliveries by using underlings."   Thus, the  leadership-role            enhancement was notdriven by any consideration ofdrug purity.                      Furthermore, application  note 9 does not  say that            drug purity  and a  defendant's leadership role  are mutually            exclusive  sentencing considerations.   The  application note            specifically   states   that  "[t]rafficking   in  controlled            substances  . . . of  unusually  high purity  may warrant  an                                         -23-                                          23            upward departure," U.S.S.G.   2D1.1, comment. (n.9) (emphasis            ______ _________            added),  not that  high purity  can provide  a basis  for the            leadership   role  adjustment   set   forth  in     3B1.1(c).            Moreover, the notion  of "leadership role"  in   3B1.1(c)  is            neither conceptually nor factually  equivalent to the  notion            of  "role or position in the  chain of distribution" referred            to  in   2D1.1 application  note 9.   This court has  in fact            previously  affirmed   a   similar  combination   of   upward            adjustments.   See United States v.  Diaz-Villafane, 874 F.2d                           ___ _____________     ______________            43 (1st Cir. 1989), cert. denied, 493 U.S. 862 (1989).  There                                ____________            was no error in the calculation of Rodriguez s sentence.                      Affirmed.                      ________                                         -24-                                          24                                       APPENDIX                                 Pretrial Chronology                                 ___________________            Jun.  3, 1993  Indictment.            Jun. 14, 1993  Arraignment.  Magistrate judge issues                           scheduling order directing, inter alia, that                                                       _____ ____                           defendant file any pretrial motions by July                           13, 1993, and that government file any                           responses by July 23, 1993.            Jun. 16, 1993  Rodriguez files motion for discovery and                           disclosure.  Due date of government's                           opposition is July 23, 1993; but opposition is                           not filed until Sept. 2, 1993.            Sep.  2, 1993  Government responds to motion filed by                           Rodriguez on June 16, 1993.            Sep. 22, 1993  Co-defendant Grajales submits guilty plea;                           district court accepts plea.            Sep. 23, 1993  Initial jury in Rodriguez's case is selected                           but not sworn.            Sep. 30, 1993  Before jury is sworn, Rodriguez requests                           disclosure by government of additional                           information concerning its key witness.  Jury                           is dismissed and Rodriguez's trial is                           postponed pending resolution of discovery                           issues.            Oct. 12, 1993  Rodriguez files "Motion for Exculpatory                           Evidence."            Oct. 13, 1993  Rodriguez files motion to reconsider bail.            Oct. 19, 1993  Rodriguez's counsel files motion to withdraw.            Oct. 25, 1993  Hearing held on motion to withdraw; the court                           allows the motion.  Court gives Rodriguez 10                           days to obtain new counsel.            Nov.  4, 1993  Rodriguez's new counsel Barry Wilson, not a                           member of the district court bar, purports to                           file an "appearance."                                         -25-                                          25                                 APPENDIX, continued            Dec.  1, 1993  Local counsel files appearance on behalf of                           Barry Wilson.            Dec. 10, 1993  Barry Wilson files motion for admission pro                                                                   ___                           hac vice.  The government opposes the motion.                           ___ ____            Feb. 22, 1994  Hearing held on pro hac vice motion.  The                                           ___ ___ ____                           court allows the motion.            Feb. 22, 1994  Rodriguez files motion to dismiss indictment                           for violation of Speedy Trial Act.            Apr. 28, 1994  Hearing held on motion to dismiss; the court                           denies the motion.            May  12, 1994  Rodriguez's trial commences.                                         -26-                                          26
