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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2002 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                 MIGUEL RODRIGUEZ, A/K/A NEGRITO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2003 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                          JOHN ROSARIO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2004 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                         HECTOR FAMANIA, <br>                  A/K/A DILENGE, A/K/A TALINGE, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Richard G. Stearns, U.S. District Judge] <br> <br>                       ____________________

                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Bownes, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Michael P. Doolin for appellant Miguel Rodrguez. <br>    James B. Krasnoo, by appointment of the Court, with whom <br>Richard Briansky and Law Offices of James Krasnoo, were on brief, <br>for appellant John Rosario. <br>    Michael J. Liston, by appointment of the Court, with whom Carr <br>& Liston, was on brief, for appellant Hctor Famania. <br>    Demetra Lambros, Attorney, U.S. Department of Justice, with <br>whom Donald K. Stern, United States Attorney, and George W. Vien, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                        December 7, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge. Following a jury trial, <br>appellants Miguel Rodrguez, John Rosario, and Hctor Famania were <br>convicted of conspiracy to distribute cocaine base, in violation of <br>21 U.S.C.  846.  Rodrguez was additionally convicted on three <br>counts of possession with intent to distribute cocaine base, in <br>violation of 21 U.S.C.  841(a)(1), and of engaging in a continuing <br>criminal enterprise, in violation of 21 U.S.C.  848.  On appeal, <br>the defendants raise numerous issues among which are the lack of <br>sufficient evidence to convict and abuse of prosecutorial <br>discretion.  For the following reasons, we affirm the convictions <br>and sentences. <br>                            BACKGROUND <br>          We review the facts of a criminal case on appeal from a <br>conviction in the light most favorable to the verdict.  See United <br>States v. Gonzlez-Maldonado, 115 F.3d 9, 12 (1st Cir. 1997).  We  <br>sketch the facts presented at trial, providing further details as <br>they become relevant to the discussion. <br>          This case concerns a crack cocaine distribution ring in <br>Framingham, Massachusetts.  Through a joint investigation conducted <br>by the Drug Enforcement Administration ("DEA") and the Framingham <br>police during 1994 and 1995, a drug-trafficking operation in the <br>Framingham community known as "Beaver Park" came to light.  At the <br>helm of the operation was Miguel Rodrguez.  Among his lieutenants <br>were John Rosario and Hctor Famania. <br>          The operation worked in the following manner.  An <br>individual known as "Johnny" would cook powder cocaine into crack.  <br>Rosario and Famania would then cut, measure, and package the drugs <br>at Rodrguez's direction. Typically, a prospective drug purchaser <br>would contact Rodrguez to place an order.  When the customer came <br>to obtain her drugs, Rodrguez would direct her to one of his <br>distributors -- Famania, Rosario, Jos Villafae, Pedro De Jess, <br>Luis Torres, and others. <br>          Famania and Rosario acted as Rodrguez's lieutenants. In <br>addition to cutting and packaging the crack for distribution, they <br>served as liaisons between Rodrguez and would-be distributors.  <br>Both regularly sold crack in Beaver Park.  <br>          Famania sold Rodrguez-supplied crack out of his <br>apartment.  One customer, Juan Carvajal, visited Famania's <br>apartment on numerous occasions throughout 1995.  Carvajal <br>witnessed Famania sell $20 bags of crack daily to various <br>customers, and twice saw Rodrguez give Famania an ounce of crack <br>for distribution.  On two occasions, Famania supplied Carvajal with <br>an ounce of crack.   <br>          Rosario also sold Rodrguez-supplied crack.  Upon <br>collecting payment from a prospective buyer, Rosario would spit a <br>plastic bag containing the crack onto the ground, where it would be <br>retrieved by the purchaser.  <br>     In January 1995, Rodrguez subordinate Pedro De Jess <br>made a crack sale to Angela Aurelio -- who, unbeknownst to him, was <br>an undercover police officer.  The ounce of crack was supplied by <br>Rodrguez and delivered by De Jess to the officer in her vehicle.  <br>She paid $950 for the ounce of crack.  A couple of weeks later, <br>Officer Aurelio made another undercover buy from De Jess.  This <br>time, Aurelio paid De Jess $1000 for an ounce. <br>     Investigators also employed Alicia Ellerbee, one of <br>Rodrguez's regular customers, to make controlled buys.  On <br>July 10, 1995, Ellerbee met Rodrguez at Beaver Park and placed an <br>order for an ounce of crack.  Later that day, at a pre-arranged <br>place, Rodrguez drove up to Ellerbee.  Upon giving him $900, <br>Ellerbee was directed to the passenger seat of Rodrguez's car, <br>where a baggie covered by a piece of paper had been placed.  <br>Ellerbee took the baggie and paper, which she subsequently handed <br>over to the authorities.  Inside the paper, a Boston Globe <br>subscription card carrying the name and address of Famania, was a <br>baggie of crack. <br>     On July 27, 1995, Ellerbee again made a crack purchase <br>from Rodrguez at the DEA's direction.  After she ordered the crack <br>from Rodrguez in the park, Rodrguez walked over to Jos <br>Villafae. Villafae left, and Ellerbee gave Rodrguez $900.  <br>Villafae then returned and dropped a package of crack into <br>Ellerbee's lap. <br>     On September 13, 1995, the grand jury indicted Rodrguez, <br>De Jess, and Villafae, charging all the defendants with <br>conspiracy to distribute cocaine and violations of substantive drug <br>offenses.  On December 22, 1995, the grand jury returned a seven <br>count superseding indictment. Count I charged Rodrguez, De Jess, <br>Villafae, Rosario, Famania, Carvajal with conspiracy to distribute <br>cocaine base. Count II charged Rodrguez and De Jess with <br>possession of cocaine base with intent to distribute on January 26, <br>1995 and aiding and abetting. Count III charged De Jess with <br>possession of cocaine base with intent to distribute on <br>February 10, 1995.  Count IV charged Rodrguez with possession of <br>cocaine base with intent to distribute on July 10, 1995.  Count V <br>charged Rodrguez and Villafae with intent to distribute on <br>July 27, 1995 and aiding and abetting.  Count VI charged Rodrguez <br>with engaging in a continuing criminal enterprise.  Count VII <br>sought the criminal forfeiture of Rodrguez's Suzuki Samurai and <br>Nissan Maxima. <br>     Carvajal, De Jess, and Villafae pled guilty and were <br>sentenced to terms ranging from time served to sixty months.  <br>Rodrguez, Famania, and Rosario proceeded to trial, and were <br>convicted on all counts. Rodrguez was sentenced to life <br>imprisonment, Rosario to 262 months imprisonment, and Famania to <br>235 months imprisonment. <br>                            DISCUSSION <br>I.  Continuing Criminal Enterprise Conviction <br>     A conviction under 21 U.S.C.  848 for engaging in a <br>continuing criminal enterprise ("CCE") requires proof beyond a <br>reasonable doubt that the defendant: (1) committed a felony drug <br>offense; (2) as part of a continuing series of such violations; (3) <br>in concert with five or more persons in relation to whom he acted <br>as a supervisor, organizer, or manager; and (4) from which multiple <br>operations he realized substantial income or other resources.  <br>United States v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994).  In <br>challenging his conviction, Rodrguez attacks the sufficiency of <br>the evidence on the latter two elements.  Neither contention has <br>merit. <br>     One who challenges the sufficiency of the evidence bears <br>a heavy burden:  he must show that no rational jury could have <br>found him guilty beyond a reasonable doubt.  See United States v. <br>Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997).  We review the <br>sufficiency of the evidence as a whole, in a light most favorable <br>to the verdict, taking into consideration all reasonable <br>inferences.  See United States v. Scantleberry-Frank, No. 97-2392, <br>slip. op. at 10 (1st Cir. Oct. 23, 1998).  We resolve all <br>credibility issues in favor of the verdict.  See id.  The evidence <br>may be entirely circumstantial, and need not exclude every <br>hypothesis of innocence; that is, the factfinder may decide among <br>reasonable interpretations of the evidence.  See id. at 10-11 <br>(citation omitted). <br>     A.  Organizer, Supervisor or Manager under CCE <br>     To be an organizer, supervisor or manager within the <br>meaning of the CCE, the defendant "need not be the dominant <br>organizer or manager of the enterprise; he need only occupy some <br>managerial position with respect to five or more persons."  United <br>States v. Hahn, 17 F.3d 502, 506 n.4 (1st Cir. 1994).  Further, the <br>jurors are not required to agree on the particular identities of <br>the subordinates, but must only agree that there were at least five <br>doing his bidding.  See United States v. David, 940 F.2d 722, 731 <br>(1st Cir. 1991). <br>     Rodrguez concedes that he organized, supervised or <br>managed four individuals:  Rosario, Famania, Villafae, and De <br>Jess.  See Def. Br. at 31.  Contrary to his claim, the government <br>has presented sufficient evidence as to a fifth individual. <br>         De Jess, testified that, like him, "Peto" also worked <br>for Rodrguez.  See Tr. 10/17 at 11-12.  The relevant testimony is <br>as follows: <br>         Q: Did you ever see Miguel Rodrguez give  <br>            drugs to Peto? <br>         A: (Through the Interpreter) Yes. <br>         Q: Where did you see those transactions <br>            take place? <br>         A: (Through the Interpreter) At the house,  <br>            Peto's. <br>                             . . .  <br>         Q: Did you see what Peto did with the money <br>            he made from the drugs? <br>         A: (Through the Interpreter) He would also  <br>            give it to Miguel. <br> <br>Tr. 10/17 at 12-13. <br>         The jury was entitled to find that "Peto" was within <br>Rodrguez's sphere of influence and subject to his supervision in <br>the course of his drug trafficking activities. <br>         B.  Substantial Income from the Enterprise <br>         The "substantial income" requirement may be met either by <br>direct evidence of the revenues realized and resources accumulated <br>by the defendant, or by such circumstantial evidence as the <br>defendant's position in the criminal organization, and the volume <br>of drugs handled by the organization.  See Hahn, 17 F.3d at 507.  <br>The substantial income test establishes no fixed minimum, but is <br>intended to exclude trivial amounts derived from occasional drug <br>sales.  See id. (citation omitted). <br>         There is overwhelming evidence that Rodrguez derived <br>substantial income from the management of his drug activities.  The <br>government need only prove revenue, not profit.  See id.  Rodrguez <br>himself spends over three single-spaced pages of his brief <br>cataloging trial testimony concerning his drug-trafficking activity <br>during the indictment period, see Def. Br. at 23-26, and admits <br>that testimony indicates that he sold or oversaw the sale of <br>approximately $70,000 worth of drugs during the period of the <br>conspiracy.  See id. at 23.  To argue that his activities <br>constitute trivial amounts derived from occasional drug sales is <br>disingenuous.  The substantial income element of the CCE was <br>established beyond a reasonable doubt. <br>II.  Evidentiary Rulings <br>         Rosario argues that the district court erred in making <br>evidentiary rulings regarding: (1) testimony about his involvement <br>in beating a suspected informant; and (2) an eye-witness account of <br>one of his drug transactions.  Famania challenges the admission of <br>a Boston Globe subscription card bearing his name and address that <br>was wrapped around a package of crack sold by Rodrguez to <br>informant Ellerbee. <br>         We review the district's court determination to admit <br>evidence for abuse of discretion.  See United States v. Houlihan, <br>92 F.3d 1271, 1297 (1st Cir. 1996), cert. denied, 117 S. Ct. 963 <br>(1997).  Only in a rare, extraordinary, and compelling instance <br>will we, "from the vista of a cold appellate record, reverse a <br>district court's on-the-spot judgment concerning the relative <br>weighing of probative value and unfair effect."  David, 940 F.2d at <br>737 (internal quotations and citations omitted).  None of the <br>defendants' claims approaches such a circumstance. <br>         A.  Evidence of Rosario's Violent Acts <br>         In the summer of 1995, an unidentified man approached <br>Rodrguez, Rosario, and "Joe" at Beaver Park and asked for drugs.  <br>Rodrguez, suspicious that the man was an informant, told him to <br>get "out of my face because you're going to get your butt kicked."  <br>Tr. 10/16 at 29.  When the man insisted on purchasing drugs, <br>Rosario reiterated the threat.  When the man failed to leave, <br>Rosario "just whacked him," id., according to an eye witness.  <br>Rodrguez and Joe escalated the brawl, and all three punched, <br>kicked, and yelled at the man.  After the man left the scene, <br>Rosario and Rodrguez concluded that the man was "one of those rats <br>. . . one of those guys that work for the cops, . . . giv[ing] <br>[drugs] to the cops so we get busted for it."  Id. at 30. <br>         Rosario argues that the fight had "no connection" to the <br>crack distribution conspiracy, and that a "[r]efusal to sell drugs <br>to one with whom one fights" frustrated, rather than furthered, the <br>objectives of the conspiracy.  See Def. Br. at 32-33.  This is an <br>artful, but incorrect interpretation of the evidence.  This was not <br>an attempt by Rodrguez and Rosario to prevent a drug transaction.  <br>Rather, the evidence shows an attempt to set a tone for their drug- <br>trafficking operation: that suspected informants would be dealt <br>with harshly.  As the district court found: <br>         [The beating] was part of a campaign of <br>         intimidation, to further the interest of the <br>         conspiracy in maintaining discipline in its <br>         ranks, by treating anyone suspected of being <br>         an informant with hostility. <br> <br>Tr. 10/16 at 134. <br>         Rosario's violence against a suspected informant is <br>relevant to prove his membership in the conspiracy and his <br>acceptance of its objectives.  See David, 940 F.2d at 737 (evidence <br>of threats and violent acts in aftermath of cocaine theft is <br>admissible to prove defendant's role in a drug-trafficking <br>conspiracy). <br>         Contrary to Rosario's claim, the evidence of the beating <br>does not stand alone as proof of his membership in the conspiracy.  <br>This is not a case of guilt by association.  In addition to his <br>discussion with Rodrguez about how to deal with suspected <br>informants, four witnesses testified that they either saw Rosario <br>selling drugs and/or purchased drugs directly from him.  One <br>witness testified that Rosario delivered an "eight ball" of crack <br>to him on consignment, explaining the terms of repayment to <br>Rodrguez.  Another witness testified that she saw Rosario cut and <br>package large amounts of crack along with Famania.  Consequently, <br>Rosario's participation in the conspiracy was established beyond a <br>reasonable doubt. <br>         B.  Testimony Regarding Rosario's Drug Dealing <br>         Alicia Ellerbee testified that she saw Rosario give a <br>customer drugs -- by spitting a baggie holding crack onto the <br>ground -- in exchange for money.  Rosario's primary challenge to <br>this evidence is that Ellerbee failed to provide a temporal <br>proximity as to when these events occurred, and thus the testimony <br>should have been excluded under Fed. R. Evid. 404(b).  See Def. Br. <br>at 36. <br>         A close reading of the record reveals no such defect.  <br>The witness dated the event between the summer of 1994 and <br>September 1995, see Tr. 10/10 at 88-89, and, more specifically, at <br>around May of 1995.  See id. at 89.  The drug transaction fell <br>squarely within the time frame of the charged conspiracy. <br>         Further, Rosario argues that "[s]ince the direct evidence <br>against the Defendant is of such a tenuous nature, any fact <br>directly linking the Defendant to the sale of crack would be <br>extremely prejudicial."  Def. Br. at 37.  Aside from the obvious, <br>that "[b]y design, all evidence is meant to be prejudicial," United <br>States v. Rodrguez-Estrada, 877 F.2d 153, 155 (1st Cir. 1989), <br>there is more than sufficient evidence establishing that Rosario <br>was a distributor and member of the Rodrguez drug-trafficking <br>organization.  Rosario's argument here is part and parcel of his <br>guilt by association theory: that he was not a co-conspirator, but <br>a friend of Rodrguez's with the misfortune of continually being in <br>the wrong place at the wrong time when drugs were present.  This <br>argument was presented to the jurors, and rejected by them.  There <br>is no reason to quarrel with their verdict. <br>         Finally, Rosario claims that the court "exacerbated [the] <br>prejudice,"  Def. Br. at 38, of Ellerbee's testimony by foreclosing <br>cross-examination into her attempted suicide and an incident in <br>which she supposedly tried to burn her hair.  The district court <br>properly found that the evidence was not relevant either to her <br>ability to tell the truth or to her partiality. <br>         C.  Famania and the Boston Globe Subscription Card <br>         Alicia Ellerbee made a controlled purchase of crack from <br>Rodrguez on July 10, 1995.  After negotiating the terms in Beaver <br>Park, Ellerbee and undercover DEA Agent Russell met Rodrguez near <br>his home.  From the driver's side of his blue Honda, Rodrguez <br>directed Ellerbee to the passenger seat, from where she retrieved <br>a package wrapped in paper.  Ellerbee testified that she gave the <br>package directly to Agent Russell, and that the two then <br>rendezvoused with DEA Agent Farley, who took the package from <br>Russell.  Farley testified that he received the package -- a baggie <br>of crack wrapped in a Boston Globe subscription card bearing <br>Famania's name and address -- within five minutes of the <br>transaction between Ellerbee and Rodrguez.  The subscription card <br>was admitted into evidence through Agent Farley, who testified that <br>it was in the same condition as it was when he received it from <br>Agent Russell. <br>         Famania argues that the card and Farley's testimony were <br>admitted in violation of Fed. R. Evid. 602, which requires that a <br>witness have personal knowledge about the matter to which he <br>testifies. <br>         Evidence is inadmissible under Rule 602 "only if in the <br>proper exercise of the trial court's discretion it finds that the <br>witness could not have actually perceived or observed that which he <br>testified to."  United States v. Neal, 36 F.3d 1190, 1206 (1st Cir. <br>1994), cert. denied, 117 S. Ct. 519 (1996) (citation omitted).  <br>Personal knowledge can include "inferences and opinions, so long as <br>they are grounded in personal observations and experience."  Id.(citation omitted). <br>         Here, Agent Farley testified that he personally received <br>the drugs, wrapped in the subscription card, from Agent Russell <br>five minutes after the transaction between Ellerbee and Rodrguez.  <br>Indeed, on cross-examination, Farley acknowledged that he did not <br>personally view the transaction between Ellerbee and Rodrguez, and <br>that he did not see the card when Ellerbee picked it up, or know <br>the precise configuration of the card at the time of the <br>transaction with Rodrguez.  As a result, Farley's testimony was <br>based on his personal knowledge, and is therefore admissible under <br>Fed. R. Evid. 602. <br>         Famania's argument with respect to the subscription card <br>is essentially a complaint about the chain of custody.  He contends <br>that "[t]here was no evidence that Agent Farley or Agent Russell <br>signed the card at the time of the transaction or otherwise secured <br>it as evidence."  Def. Br. at 9.  His concern is that there was no <br>evidence as to what Agent Russell did with the card in the five <br>minutes that transpired before he met with Agent Farley. <br>         A possible defect in the chain of custody for a certain <br>piece of evidence factors into the weight given to the evidence <br>rather than its admissibility.  See United States v. Abreu, 952 <br>F.2d 1458, 1467 (1st Cir. 1992).  A defendant can attempt to cast <br>doubt on an exhibit's authenticity.  Such an issue, however, is to <br>be resolved by the jury, and not the judge.  Thus, the subscription <br>card was properly admitted into evidence. <br>III.  Jury Instruction <br>         Rodrguez contends that the district court's jury <br>instructions understated the government's constitutional burden of <br>proving his guilt beyond a reasonable doubt.  After a close reading <br>of the instructions, we find no such error. <br>         Our review of the instructions is de novo.  Gilday v. <br>Callahan, 59 F.3d 257, 260 (1st Cir. 1995), cert. denied, 516 U.S. <br>1175 (1996).  The constitutional inquiry is whether "there is a <br>reasonable likelihood that the jury understood the instruction to <br>allow conviction based on proof insufficient to meet the <br>[reasonable doubt] standard."  Vctor v. Nebraska, 511 U.S. 1, 6 <br>(1994).  The challenged remark must be examined along with the rest <br>of the charge to see, if taken as a whole, the instructions <br>correctly convey the concept of reasonable doubt to the jury.  Seeid.

         A.  The "Real Possibility" Instruction <br>         One of the cornerstones of the criminal trial is that the <br>government must prove beyond a reasonable doubt every element of <br>the offense.  See In re Winship, 397 U.S. 358 (1970).  The term <br>"beyond a reasonable doubt" is one of the most bandied, but perhaps <br>least precisely defined phrases in criminal law.  Here, the trial <br>judge used a modified version of the Federal Judicial Center form <br>book instruction for "beyond a reasonable doubt."  Below is the <br>instruction as given, underlined to show the part we discuss: <br>           In a criminal case the burden of proving <br>         guilt is on the government.  It has that <br>         burden throughout the entire trial.  A <br>         defendant never has to prove his innocence.  <br>         The right of a defendant to put the government <br>         to its proof is one of the most fundamental <br>         guarantees of our Constitution.  It means that <br>         the defendant has no obligation to produce any <br>         evidence or to testify.  Thus, you may not <br>         draw an inference of guilt from the fact that <br>         a defendant did not testify.  You may not even <br>         discuss that fact in your deliberations.  <br>         Again, the burden rests solely upon the <br>         government to prove a defendant guilty beyond <br>         a reasonable doubt. <br>           Now, what is proof beyond a reasonable <br>         doubt?  The term is often used, and probably <br>         pretty well understood intuitively, although <br>         it is not easily defined.  Proof beyond a <br>         reasonable doubt does not mean proof beyond <br>         all possible doubt or proof to a mathematical <br>         certainty. Everything in our common experience <br>         is open to some possible or imaginary doubt.  <br>         It does, however, mean that the evidence must <br>         exclude any reasonable doubt as to a <br>         defendant's guilt. <br>           A reasonable doubt may arise not only from <br>         the evidence produced but also from the lack <br>         of such evidence.  A reasonable doubt exists <br>         when, after weighing and considering all the <br>         evidence in the case, using your reason and <br>         common sense, you cannot say that you have a <br>         firm and settled conviction that the charge is <br>         true. <br>           It is not enough for the government to <br>         establish a probability, even a strong <br>         probability, that a defendant is more likely <br>         guilty than not.  That is not enough.  Proof <br>         beyond a reasonable doubt must be proof of <br>         such a convincing character that you can, <br>         consistent with your oath as jurors, <br>         conscientiously base your verdict upon it.  If <br>         you so find as to a defendant, you will return <br>         a verdict of guilty.  On the other hand, if <br>         you think there is a real possibility that the <br>         defendant is not guilty of the charges, you <br>         must give the defendant the benefit of that <br>         doubt and find him not guilty. <br> <br>Tr. 10/21 at 108-09.  The challenged sentence in this instruction <br>is substantially copied from the Federal Judicial Center form book.  <br>See Federal Judicial Center, Pattern Criminal Jury Instructions 28 <br>(1988) (Instruction 21). <br>         Rodrguez's argument is directed at the phrase "real <br>possibility" in the sentence, "On the other hand, if you think <br>there is a real possibility that the defendant is not guilty, you <br>must give him the benefit of the doubt and find him not guilty."  <br>He argues that the trial judge equated reasonable doubt with "real <br>possibility."  Rodrguez contends that the district court <br>exacerbated an already bad situation when it further explained that <br>the jury could draw inferences using "reason and logic" and "in <br>light of reason and common sense."  He claims that worse still, the <br>district court then failed to give an instruction stating that the <br>standard for drawing an inference is not the same as the standard <br>for finding guilt, thus creating a reasonable likelihood that the <br>jury would apply an impermissibly low standard of proof to the <br>government's case against the defendants. <br>         The Supreme Court has held that a reasonable doubt is, at <br>a minimum, one based on reason, so "[a] fanciful doubt is not a <br>reasonable doubt."  Vctor, 511 U.S. at 17.  Vctor makes that <br>distinction in the context of approving the phrase "not a mere <br>possible doubt."  Id. <br>         "[T]he Constitution does not require that any particular <br>form of words be used in advising the jury of the government's <br>burden of proof."  Id. at 5. The challenged passage from the <br>Federal Judicial Center form book instruction is recommended by <br>Justice Ginsburg in her concurrence in Vctor.  See id. at 26-27 <br>(Ginsburg, J., concurring).  The trial judge may require a "real <br>possibility" of doubt because "[a] fanciful doubt is not a <br>reasonable doubt."  Id. at 17.  The phrase "real doubt" does not <br>suffer the infirmity of requiring the jury to have "grave <br>uncertainty," "substantial doubt," and a "real tangible substantial <br>basis" for doubt, before they can acquit, as the unconstitutional <br>instruction did in Cage v. Louisiana, 498 U.S. 39, 40 (1990), <br>overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 <br>n.4 (1991). <br>         Here, the likelihood of juror confusion or mistake is <br>extremely remote.  We conclude that the instructions overall left <br>the jury with an accurate impression of the presumption of <br>innocence and of the substantial burden faced by the prosecution in <br>establishing the defendant's guilt beyond a reasonable doubt.  <br>There was nothing improper with either the challenged sentence or <br>the instructions as a whole. <br>IV.  Brady Claims <br>         Based on their post-trial discovery of additional <br>impeachment evidence concerning two of the government's witnesses, <br>appellants moved for a new trial.  The district court denied the <br>motions, which Famania claims was an abuse of discretion.  We <br>disagree. <br>         The denial of a motion for a new trial is reviewed only <br>for manifest abuse of discretion.  United States v. Henry, 136 F.3d <br>12, 22 (1st Cir. 1998). <br>         A.  Nancy Muiz <br>         At trial, one of the government's witnesses, Nancy Muiz, <br>claimed that she was employed as a financial consultant at Merrill <br>Lynch.  After trial, this testimony was discovered to be false; <br>Muiz was in fact making her living as a prostitute.  The district <br>court found that "[t]here is no suggestion that the government was <br>aware of Ms. Muiz's perjury."  July 22, 1997, Mem. and Order at 3.  <br>Subsequent to the trial, and allegedly unbeknownst to the <br>prosecution, appellant ascertained that the Framingham police had <br>charged Muiz with operating a motor vehicle without a license, a <br>charge which was pending at the time of her testimony.  See id. at <br>1. <br>         We begin by noting the relevant legal standards.  A Bradyerror occurs when the prosecution suppresses "material" evidence <br>that is favorable to the accused.  See Kyles v. Whitney, 514 U.S. <br>419 (1995).  In most circumstances, exculpatory evidence is <br>material only if there is a "'reasonable probability that, had the <br>evidence been disclosed to the defense, the result of the <br>proceeding would have been different.'"  Id. at 435 (quoting United <br>States v. Bagley, 473 U.S. 667, 682, 685 (1985)).  We refer to this <br>as the Bagley standard. <br>         A standard of materiality more favorable to the defendant <br>applies, however, when previously undisclosed evidence reveals that <br>the prosecutor knowingly used perjured testimony or, equivalently, <br>knowingly failed to disclose that testimony used to convict the <br>defendant was false.  See Bagley, 473 U.S. at 678-80.  In such <br>situations, "'a conviction . . . is fundamentally unfair, and must <br>be set aside if there is any reasonable likelihood that the false <br>testimony could have affected the judgment of the jury.'"  Kyles, <br>514 U.S. at 433 n.7 (quoting United States v. Augurs, 427 U.S. 97, <br>103 (1976)).  We refer to this as the Augurs standard. <br>         Here, the district court assumed that the government <br>"should have known" about Muiz's perjury, and applied the Augursstandard of materiality.  See July 22, 1997 Mem. and Order at 3.  <br>Applying this standard, it found that "there is no reasonable <br>possibility that one more piece of impeaching evidence tarnishing <br>an already blemished witness by degree rather than kind, could have <br>affected the jury's judgment."  Id. at 4.  With regard to the <br>traffic citation, the district court found that it was not Bradymaterial.  See id. at 5.  Applying the Kyles/Bagley materiality <br>test, the court found that had the jury been made aware of the <br>infraction, "there is no reasonable possibility, much less a <br>probability," id., that it would have influenced the verdict. <br>         The district court's rulings were not an abuse of <br>discretion.  Muiz admitted to the jurors that she had supported a <br>thirteen-year addiction to heroin by working as a prostitute, that <br>she had frequently used other illegal drugs, that she had offered <br>herself to the government as an informant because she needed the <br>money, and most importantly, that she had lied to the grand jury <br>about having been a prostitute in the past.  The jury was already <br>on notice about her tendency to commit perjury.  <br>         In addition, the thrust of her testimony, that defendants <br>Rodrguez, Rosario and Famania were in the business of distributing <br>crack cocaine, was corroborated by the testimony of five other <br>cooperating witnesses, and by police surveillance and physical <br>evidence.  Even examining her perjury under the Augurs standard, <br>there is little chance that her false testimony affected the <br>verdict. <br>         Similarly, the district court's ruling with respect to <br>the traffic citation does not constitute an abuse of discretion.  <br>Assuming arguendo, but with little basis in the record, that the <br>prosecutors or their agents knew or should have known of the <br>information in question, we agree with the district court that <br>there is no reasonable possibility that their lack of awareness of <br>a traffic citation would have influenced their verdict.  See United <br>States v. Seplveda, 15 F.3d 1216, 1220 n.5 (1st Cir. 1993)("[O]ur <br>decisions . . . have [not] been sympathetic to new trial claims <br>based solely on the discovery of additional information useful for <br>impeaching a government witness."). <br>         B.  Pedro De Jess <br>         Defendants argue that they were not told about the <br>government's notice to De Jess under 21 U.S.C.  851, which <br>exposed De Jess to harsh recidivist penalties, enhancing his <br>"motivation to tell the government what it wanted to hear."  Def. <br>Br. at 26. <br>         The government's nondisclosure of its  851 filing does <br>not entitle the defendants to a new trial.  Defendants knew full <br>well that De Jess had a long criminal history, see Tr. 10/17 at <br>21-23 (Rodrguez's cross-examination detailing De Jess' prior <br>convictions), and that a  5K1.1 motion would trump any mandatory <br>sentence that De Jess would otherwise receive.  As a result, there <br>is no Brady violation.  See United States v. Hicks, 848 F.2d 1, 4 <br>(1st Cir. 1988).  The government has no Brady burden when the <br>necessary facts for impeachment are readily available to a diligent <br>defender, as they were here.  See Lugo v. Muoz, 682 F.2d 7, 9-10 <br>(1st Cir. 1982). <br>         Further, the government's failure to disclose its promise <br>to apprise state law enforcement authorities about De Jess' <br>cooperation does not entitle the defendants to a new trial.  At <br>trial, there was confusion about the status of De Jess' state drug <br>charges.  The court initially told the jury that state court <br>records indicated that De Jess had already pled guilty and been <br>sentenced to probation on drug-trafficking charges.  After further <br>investigation, it was discovered that the charges were still <br>pending.  As a result, the court corrected the factual inaccuracy <br>and specifically instructed the jury that <br>         you may consider whether any expectancy of <br>         leniency on this pending [state] charge might <br>         have had an influence on what he said when [De <br>         Jess] testified before you. <br> <br>Tr. 10/21 at 117.  This charge, along with the extensive cross- <br>examination conducted by the defendants concerning De Jess' <br>alliance with the government and his motivation for a reduced <br>sentence, rendered the government's failure to disclose its aid to <br>De Jess insignificant. <br>V.  Request for an Evidentiary Hearing <br>         Appellants argue that the district court erred in <br>refusing their request for an evidentiary hearing to determine <br>whether Muiz perjured herself on matters other than her <br>occupation, and to discover whether the government had disclosed <br>all of its pretrial promises and inducements to Carvajal and De <br>Jess.  We are not persuaded. <br>         The substantive test to be applied when a criminal <br>defendant seeks an evidentiary hearing is whether the movant has <br>made an adequate threshold showing that the material facts are in <br>genuine doubt or dispute.  See United States v. Lilly, 983 F.2d <br>300, 311 (1st Cir. 1992).  If the district court declines to hold <br>an evidentiary hearing, we will disturb its decision only for an <br>abuse of discretion.  See id. <br>         Appellants argue that Muiz's "lie about her employment <br>was not likely her only lie about herself."  Def. Br. at 38.  They <br>speculate that her prostitution "clearly suggested that she was <br>hardly a recovered heroin addict."  Id.  However, they offered no <br>evidence to support their theories, and the district court rejected <br>their request for an evidentiary hearing. <br>         With regard to the issue of the government's pre-trial <br>promises and inducements, the district court ordered the government <br>to file a declaration stating that it had disclosed all inducements <br>given to cooperating witnesses.  In response, the government <br>represented that all pre-trial promises, rewards, and inducements <br>had been disclosed.  In its final order denying an evidentiary <br>hearing, the court stated: <br>         [I]n the absence of any evidence to the <br>         contrary, I accept the government's <br>         representation . . . that it has disclosed all <br>         such inducements. <br> <br>June 5, 1998 Order at 1.   <br>         As this Court has stated in the past, "[a] criminal <br>defendant has no constitutional right to conduct a fishing <br>expedition."  Lilly, 983 F.2d at 311.  Appellants have made no <br>showing, in this Court or below, that material facts were in doubt <br>or dispute.  Conclusory allegations and pure speculation, without <br>more, do not merit an evidentiary hearing.  Accordingly, the <br>district court acted well within its discretion when it denied the <br>appellants' request. <br>VI. Challenge to the Composition and Voir Dire Examination of <br>    the Jury <br> <br>         Rosario contends: (1) that the district court wrongly <br>rejected his challenge to the grand and petit jury venires on the <br>ground of systematic exclusion of Hispanics; and (2) that the court <br>violated his due process and fair trial rights by denying his <br>motion to directly question the venire.  Neither claim is <br>compelling. <br>         A.  Systematic Exclusion Claim <br>         At base, Rosario's argument is that the dissent in United <br>States v. Pion, 25 F.3d 18 (1st Cir. 1994)(rejecting an attack on <br>the composition of juries in the district court of Massachusetts <br>based on under-representation of the Hispanic population), was <br>correct.  He offers nothing new in the way of statistics or legal <br>authority to buttress his claim.  Nor does he provide any reason <br>why we should reconsider our recent reaffirmation of Pion in United <br>States v. Lpez, 147 F.3d 1 (1st Cir. 1998).  Consequently, there <br>is no need to go any further.   <br>         B.  Voir Dire Claim <br>         Fed. R. Crim. P. 24(a) provides that the trial court may <br>decide to conduct the voir dire itself or may allow the parties to <br>conduct it.  See Rosales-Lpez v. United States, 451 U.S. 182 <br>(1981); Fed. R. Crim. P. 24(a).  Rosario argues, contrary to the <br>language of Rule 24(a), that due process requires that he should <br>have been allowed to question the venire. <br>         There is simply no authority, as Rosario himself admits, <br>for the proposition that defense counsel must be allowed -- as a <br>matter of right -- to question the venire.  Rather, the law states <br>that the trial court has the option of allowing counsel to conduct <br>voir dire or conducting the examination itself.  If the court <br>chooses the latter option, as it did in this case, it must permit <br>counsel to "supplement the examination by such further inquiry as <br>it deems proper or shall itself submit to the prospective jurors <br>such additional questions by the parties or their attorneys as it <br>deems proper."  Fed. R. Crim. P. 24(a). <br>         The trial court complied with the requirements of Rule <br>24(a) by asking the venire, at defense counsel's request, about <br>their possible prejudices against Hispanics.  See Tr. 10/7 at 18.  <br>After noting that the law enforcement officials would all be <br>Caucasians, the district court additionally asked whether any juror <br>would be inclined to take the word of a white police officer over <br>a Hispanic defendant, or otherwise give "some edge" to the <br>officer's testimony.  See id. at 19.  Accordingly, the court's <br>conduct of voir dire was entirely proper. <br>VII.  Sentencing Issues <br>         Famania and Rosario challenge their sentences on numerous <br>grounds.  None is convincing and all are thus rejected. <br>         A.  The Sentences <br>         A narcotics conspirator is responsible not only for drugs <br>he actually handled or saw but also for the full quantity of drugs <br>that he reasonably could have foreseen to be embraced by the <br>conspiracy he joined.  See United States v. De La Cruz, 996 F.2d <br>1307, 1314 (1st Cir. 1993); U.S.S.G.  2D1.4, 2D1.1, 1B1.3 & <br>comment n.1.  The district court's findings as to the quantity <br>embraced by the conspiracy and reasonably foreseen by the defendant <br>is a factual one and will not be disturbed unless clearly <br>erroneous.  See De La Cruz, 996 F.2d at 1314. <br>         Where no drugs have been seized, the guidelines instruct <br>the district court to approximate the amounts involved, seeU.S.S.G.  2D1.1 comment. (note 12), and we uphold such an <br>approximation as long as it represents a reasoned estimate of the <br>quantity.  See United States v. Webster, 54 F.3d 1, 5 (1st Cir. <br>1995). <br>         First, the district court found that Rodrguez, Rosario, <br>and Famania had joined the conspiracy by December 1994, and that <br>the conspiracy continued until Rodrguez's arrest in September <br>1995.  See Tr. 7/11/97 at 7.  Second, it found that "a fair and <br>conservative figure would attribute the distribution of five ounces <br>of crack cocaine to the conspiracy on a weekly basis."  Id. at 9.  <br>Over a 36-week period, that would involve the distribution of <br>approximately 5,000 grams of crack cocaine.   <br>         The district court based its approximation on the <br>following factors: (1) the ability of the conspirators to produce <br>crack cocaine on short notice in amounts ranging from 13 grams to <br>an ounce; (2) the four undercover purchases; (3) Carvajal's <br>testimony that he and Rodrguez agreed to the purchase of an ounce <br>of crack weekly on consignment; (4) numerous eyewitness accounts <br>and surveillance of the come-and-go traffic at Famania's apartment <br>and at Beaver Park; and (5) accounts of the conspiracy's customers.  <br>See id. at 9-10. <br>         All three defendants were assigned a Base Offense Level <br>("BOL") of 38.  See id. at 10.  With no adjustments to the BOL and <br>based on a Category II criminal history, the district court <br>sentenced Rosario to 262 months, the lowest end of the applicable <br>262-327 months range.  See id. at 11.  It sentenced Famania to 235 <br>months imprisonment, the minimum of the 235-293 month range, again <br>with no adjustments to the BOL and based on a Category I criminal <br>history.  See id. at 12. <br>         The district court's approximation was a reasoned, if not <br>conservative, estimate of the drug quantity involved.  <br>Consequently, the sentences imposed were proper and without error. <br>         B.  Denial of an Evidentiary Hearing <br>         Contrary to Famania's claim, the district court did not <br>err in making its drug quantity calculations without first holding <br>an evidentiary hearing. <br>         Under the federal sentencing guidelines, "when any factor <br>important to the sentencing determination is reasonably in dispute, <br>the parties shall be given an adequate opportunity to present <br>information to the court regarding that factor."  U.S.S.G.  6A1.3.  <br>This provision does not mean that every factual dispute pertinent <br>to the imposition of sentence demands a full evidentiary hearing.  <br>See United States v. Robles-Torres, 109 F.3d 83, 85 (1st Cir. <br>1997).  Evidentiary hearings at sentencing are, and should remain, <br>the exception rather than the rule.  See id.  In the final <br>analysis, the decision to hold or eschew an evidentiary hearing <br>lies within the sound discretion of the sentencing court.  See id.  <br>         In his request for an evidentiary hearing, Famania <br>proposed to take the stand and refute various pieces of trial <br>testimony, and also to cross-examine Carvajal.  In denying the <br>request, the district court noted: (1) that Carvajal was vigorously <br>cross-examined at trial; (2) that the court had an opportunity to <br>assess Carvajal's credibility; and (3) that the defendants had <br>offered nothing of substance to impugn the specifics of Carvajal's <br>account. <br>         The district court indicated that it would consider any <br>relevant affidavits or statements submitted by appellants for <br>sentencing purposes.  Taking his cue from the district court, <br>Famania submitted an affidavit disputing the trial testimony of <br>Carvajal, De Jess, and Muiz, as well as the grand jury testimony <br>of another witness describing Famania as a drug distributor.  He <br>also presented an affidavit from one of his sisters-in-law, who <br>attested that Famania's large family had free access to his <br>apartment, and that they did not witness any drug activity. <br>         Not satisfied with the above, Famania now attacks his <br>sentence on the basis that the defendants were entitled to an <br>evidentiary hearing: (1) to further the fact-finding process; and <br>(2) to combat the government's proffer and the court's reliance on <br>the grand jury testimony of a witness who corroborated trial <br>testimony as to the nature of the conspiracy. <br>         Famania's arguments are not well founded.  Under U.S.S.G. <br> 6A1.3, he was given his proverbial day in court when the district <br>court invited the submission of affidavits and statements by the <br>defendants for sentencing purposes.  Given that opportunity to <br>present information to the court, the district court's decision not <br>to hold an evidentiary hearing was not in error.   <br>         Moreover, a "sentencing judge is vested with wide <br>discretion to determine the information on which sentencing <br>guideline decisions will be based, and may consider reliable <br>hearsay evidence."  United States v. Montoya, 967 F.2d 1, 3 (1st <br>Cir. 1992) (citation omitted).  Evidence with "sufficient indicia <br>of reliability to support its probable accuracy" may be considered <br>at sentencing "without regard to its admissibility under the rules <br>of evidence applicable at trial."  U.S.S.G.  6A1.3.  Mindful of <br>these tenets, the district court's consideration of grand jury <br>testimony to corroborate the general nature of the conspiracy was <br>entirely proper. <br>         C.  Disparate Sentencing/Prosecutorial Discretion Claim <br>         Defendants Rosario and Famania argue that they should be <br>resentenced because their sentences were significantly higher than <br>those of their co-conspirators who pled guilty rather than choosing <br>to go to trial.  They claim that the disparity in sentencing <br>constituted an impermissible burden on their Sixth Amendment right <br>to a jury trial and violated the Due Process and Equal Protection <br>Clauses of the Constitution. <br>         The government indicted six defendants, charging all of <br>them with engaging in the same conspiracy to distribute crack <br>cocaine.  The district court found this conspiracy accountable for <br>the distribution of approximately 5,000 grams of crack cocaine over <br>a 36-week period.  At sentencing, the court held Rosario and <br>Famania accountable for all 5,000 grams of the crack cocaine.  In <br>contrast, the district court accepted the agreement of the three <br>defendants who had pled guilty -- Carvajal, De Jess, and Villafae <br>-- which was based on responsibility only for the amount of drugs <br>which each had personally handled.  Carvajal, for example, was held <br>accountable for 5 to 20 grams of crack cocaine.  This disparity in <br>the drug-quantity attribution led to an even more striking <br>disparity in sentencing, which is the subject of the defendants' <br>complaint.  Carvajal was sentenced to the time he had already <br>served, De Jess to 17 months of imprisonment, and Villafae to 60 <br>months of imprisonment.  Famania was sentenced to 235 months of <br>imprisonment, and Rosario to 260 months of imprisonment.  <br>Rodrguez, who was also charged with engaging in a continuing <br>criminal enterprise, was sentenced to life imprisonment. <br>         The thrust of the defendants' complaint is that this vast <br>disparity in sentencing -- a difference of more than 21 years <br>between Carvajal and Rosario, for example -- is an inevitable <br>consequence of the application of a different drug-quantity <br>attribution algorithm for those defendants who plead guilty as <br>opposed to those who did not.  They identify the plea-bargaining <br>practice of the Office of the United States Attorney as the source <br>of this disparity.  The defendants claim that the U.S. Attorney <br>fashioned plea agreements with the "pleading defendants" which <br>attributed to them an amount of drugs no greater than the amount <br>for which the pleading defendants were personally responsible, or <br>had personally handled.  Those who did not plead guilty but <br>exercised their right to go to trial, by contrast, had attributed <br>to them all of the drugs that could be accounted to the entire <br>conspiracy.  Those who chose to go to trial, therefore, were <br>necessarily sentenced on the basis of a far greater amount of drugs <br>than those who pled guilty.  According to the defendants, this <br>practice discriminates against those who exercise their right to a <br>jury trial. <br>         The government, which characterizes the defendants' <br>argument as an improper motion for a downward departure from the <br>applicable sentencing range, argues that we have no jurisdiction to <br>consider the defendants' complaint because the disparate sentences <br>of co-conspirators do not provide a basis for resentencing.  The <br>government further asserts that even if this court did have <br>jurisdiction, it should find no constitutional violation because <br>the sentences of the pleading defendants were properly based on <br>their plea agreements and allowed by U.S.S.G.  1B1.8(a). <br>         We begin, as we must, with the government's <br>jurisdictional objection.  It is settled that "we have no appellate <br>jurisdiction to review a sentence within the applicable sentencing <br>guidelines range if that range was correctly determined."  United <br>States v. Panet-Collazo, 960 F.2d 256, 261 (1st Cir. 1992).  The <br>defendants' argument is focused on the argued unconstitutional <br>effects of the practices that led to the imposition of such <br>disparate sentences.  They do not say that their sentences were <br>improperly calculated.  Instead, they claim that the plea- <br>bargaining practice of the U.S. Attorney's Office puts undue <br>pressure on defendants, such as Rosario and Famania, to waive their <br>right to a trial and violates Due Process and Equal Protection <br>principles.  Because there is no jurisdictional barrier to such an <br>argument, we evaluate the defendants' argument. <br>         The defendants' challenge to the plea-bargaining practice <br>of the U.S. Attorney here finds little support in the law.  We <br>begin by noting that "prosecutorial charging, plea, and motion <br>practices are . . . a well-spring of sentencing disparity . . . . <br>In the federal system, prosecutors have always enjoyed great <br>discretion in deciding what cases to pursue and what charges to <br>bring."  Kate Stith & Jos A. Cabranes, Fear of Judging: Sentencing <br>Guidelines in the Federal Courts 140-41 (1998).  As Professor Stith <br>and Judge Cabranes state: <br>           The major reason that such broad <br>         [prosecutorial] discretion has been accorded <br>         to prosecutors is the large number and <br>         complexity of factors that prosecutors must <br>         (legitimately) take into account in making <br>         charging and other decisions.  These include <br>         many considerations that the Sentencing <br>         Guidelines, or any other sentencing authority, <br>         would recognize as relevant also to <br>         sentencing--including the nature and <br>         seriousness of the offense, the deterrent <br>         effect of prosecution, the defendant's <br>         culpability in the offense, the defendant's <br>         criminal history and a wide range of other <br>         personal circumstances, the charges against <br>         accomplices in the crime, and the defendant's <br>         willingness to cooperate in the prosecution of <br>         others.  In addition, prosecutors must pay <br>         attention to a variety of considerations that <br>         sentencing authorities ordinarily do not take <br>         into account after the defendant has been <br>         convicted--the strength or paucity of the <br>         admissible evidence, the priority accorded by <br>         the federal government as well as by the local <br>         community to prosecution of the particular <br>         offense, the capability and availability of <br>         prosecutorial resources and adjunct <br>         investigatory resources, the alternatives to <br>         prosecution, and the likelihood of prosecution <br>         in another jurisdiction. <br> <br>Id. at 141. <br>         The government, it appears, negotiated plea bargains with <br>some of the defendants and promised, according to U.S.S.G. <br> 1B1.8(a), not to use any of the information provided by <br>cooperating defendants against them.  The government then charged <br>each of them only with the amount of drugs they had personally <br>handled, rather than the entire amount distributed by the <br>conspiracy.  This practice led to the enormous sentencing disparity <br>for the defendants who chose to put the government to its burden in <br>proving its case.  Nevertheless, the law allows the government to <br>do this, even if it results in sentences of such disparity as would <br>strike many as unfair. <br>          The fact that those who plead generally receive more <br>lenient treatment, or at least a government recommendation of more <br>lenient treatment than co-defendants who go to trial, does not in <br>and of itself constitute an unconstitutional burden on one's right <br>to go to trial and prove its case.  See Corbitt v. New Jersey, 439 <br>U.S. 212, 219 (1978) (noting that every burden on the exercise of <br>a constitutional right is not invalid and that there is no per se <br>rule against encouraging guilty pleas, even where those pleas <br>promise the certainty of a lesser penalty).  To be sure, the <br>differential which resulted here exacts a high price from those who <br>exercise their constitutional right to trial, but the price is not <br>high enough to constitute a constitutional violation.   <br>          Corbitt provides guidance on this issue.  In Corbitt, the <br>Court addressed a claim under the New Jersey homicide statutes, <br>which mandated life imprisonment for a jury conviction of first- <br>degree murder and a maximum term of 30 years' imprisonment for a <br>jury conviction of second-degree murder.  Although guilty pleas <br>were not permitted in murder cases, a plea of non vult (or nolocontendere) was allowed.  If such a plea was accepted, the judge <br>would not need to decide whether the murder was first- or second- <br>degree, but could sentence the defendant to either life <br>imprisonment or to the same sentence that would be imposed for <br>second-degree murder (i.e., a maximum of 30 years' imprisonment).  <br>See id. at 214-15.  The Court rejected the claim that because a <br>plea of non vult might produce a lesser sentence than going to <br>trial, the statutes imposed an unconstitutional burden on the <br>defendant's right to a jury trial and violated his right to equal <br>protection under the laws.  See id. at 218.  The Court, quoting its <br>earlier decision in Bordenkircher v. Hayes, 434 U.S. 357 (1978), <br>explained that: <br>          While confronting a defendant with the risk of <br>          more severe punishment clearly may have a <br>          discouraging effect on the defendant's <br>          assertion of his trial rights, the imposition <br>          of these difficult choices [is] an inevitable <br>            and permissible   attribute of any <br>          legitimate system which tolerates and <br>          encourages the negotiation of pleas.  It <br>          follows that, by tolerating and encouraging <br>          the negotiation of pleas, this Court has <br>          necessarily accepted as constitutionally <br>          legitimate the simple reality that the <br>          prosecutor's interest at the bargaining table <br>          is to persuade the defendant to forgo his <br>          right to plead not guilty. <br> <br>Corbitt, 439 U.S. at 220-21 (quoting Bordenkircher, 434 U.S. at <br>364) (internal quotation marks and citation omitted).  The Court <br>also indicated that the defendant's reliance on United States v. <br>Jackson, 390 U.S. 570 (1968), was inapposite.  See Corbitt, 439 <br>U.S. at 216-17. <br>          In Jackson, the Court found that one portion of the <br>Federal Kidnapping Act, 18 U.S.C.  1201(a), needlessly chilled the <br>exercise of one's right to a jury trial.  See Jackson, 390 U.S. at <br>582.  Corbitt distinguished Jackson, and thus its rule, on several <br>grounds.  Jackson involved the death penalty, "which is unique in <br>its severity and irrevocability."  Corbitt, 439 U.S. at 217 <br>(quoting Gregg v. Georgia, 428 U.S. 153 (1976)).  The pressures in <br>Corbitt, which compared to those stemming from the practice alleged <br>here, were substantial, but they did not rise to the level of those <br>in Jackson.  See id. at 217 (declining to hold "that the Jacksonrationale is limited to those cases where the plea avoids any <br>possibility of the death penalty's being imposed," but noting that <br>"it is a material fact that under the New Jersey law the maximum <br>penalty for murder is life imprisonment, not death"). <br>          Further, in Jackson, all risk of receiving the death <br>penalty could be avoided by pleading guilty.  In Corbitt, although <br>the punishment for a jury conviction of first-degree murder was <br>life imprisonment, the risk of receiving the same punishment was <br>not completely avoided by pleading non vult, as the judge accepting <br>the plea still maintained the power to impose a life term.  SeeCorbitt, 439 U.S. at 217.  The defendants here, of course, cannot <br>avoid the imposition of a significantly greater sentence without <br>pleading guilty, but that fact alone cannot help these defendants <br>to avoid Corbitt and bring their case within the ambit of Jackson. <br>          The defendants do not dispute that a conspirator may be <br>held responsible for the reasonably foreseeable amount of drugs <br>embraced by the jointly undertaken activity.  See De La Cruz, 996 <br>F.2d at 1314.  It is, however, within the government's discretion <br>to charge similarly situated defendants differently.  Only when a <br>prosecutor discriminates against defendants based on impermissible <br>criteria such as race or religion is a prosecutor's discretion <br>subject to review and rebuke.  See Bordenkircher, 434 U.S. at 364 <br>(noting that "the conscious exercise of some selectivity in <br>enforcement is not in itself a federal constitutional violation so <br>long as the selection was [not] deliberately based upon an <br>unjustifiable standard such as race, religion, or other arbitrary <br>classification") (internal quotation marks omitted); cf. Corbitt, <br>439 U.S. at  225-26 (holding that there was no Equal Protection <br>violation where those who pled guilty could potentially serve the <br>same sentence as those who chose to contest their guilt, and <br>asserting that to "fit the problem . . . into an equal protection <br>framework is a task too Procrustean to be rationally accomplished") <br>(citation omitted).   <br>          To the extent that the defendants' argument can be <br>characterized as seeking to equalize their sentences with those of <br>their co-defendants, their argument, "without more, will not permit <br>a departure from a properly calculated guideline sentencing range."  <br>United States v. Wogan, 938 F.2d 1446 (1st Cir. 1991); see United <br>States v. Pierro, 32 F.3d 611, 622 (1st Cir. 1994)(same); United <br>States v. Figueroa, 976 F.2d 1446, 1460 (1st Cir. 1992); United <br>States v. Butt, 955 F.2d 77, 90 (1st Cir. 1992); see also United <br>States v. Jackson, 950 F.2d 633, 637-38 (10th Cir. 1991) ("Because <br>Jackson's claim is based solely on the lesser sentence imposed on <br>his codefendant and because his sentence falls within the range <br>established by the Sentencing Guidelines, we must reject this claim <br>. . . ."); United States v. Carpenter, 914 F.2d 1131, 1136 (9th <br>Cir. 1990) (holding that a defendant cannot base a challenge to his <br>sentence solely on the lesser sentence given by the district court <br>to his codefendant); United States v. Guerrero, 894 F.2d 261, 267 <br>(7th Cir. 1990) (stating that there is nothing "in the legislative <br>history suggesting that the sentences within the Guidelines should <br>be reviewed because of a claim that a particular sentence is <br>draconian or too lenient"); United States v. Snchez-Sols, 882 <br>F.2d 693, 699 (2d Cir. 1989) (rejecting defendant's claim that a <br>disparity in sentences violates the Sentencing Reform Act and <br>rejecting his suggestion that he was penalized for exercising his <br>right to a trial).  <br>                           CONCLUSION <br>          For the reasons stated in this opinion, we affirm.</pre>

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