
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2035                                    UNITED STATES,                                      Appellee,                                          v.                      GEORGE BERRIOS, A/K/A ANTONIO CANDELARIO,                                Defendant - Appellant.                                 ____________________          No. 95-2036                                    UNITED STATES,                                      Appellee,                                          v.                              MARIO MENDEZ, A/K/A PABLO,                                Defendant - Appellant.                                 ____________________          No. 95-2038                                    UNITED STATES,                                      Appellee,                                          v.                     PEDRO GONZALEZ, A/K/A FRANK CASTILLO-PEREZ,                                Defendant - Appellant.                                 ____________________          No. 97-1121                                    UNITED STATES,                                      Appellee,                                          v.                               HANNOVER ALBERTO SEGURA,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Godbold,* Senior Circuit Judge,                                     ____________________                           and Barbadoro,** District Judge.                                            ______________                                _____________________               Malcolm   J.  Barach,  by  appointment  of  the  Court,  for               ____________________          appellant George Berr os.               Jos  A. Espinosa,  with whom Paul F. Murphy  and MacDonald &               ________________             ______________      ___________          Murphy were on brief for appellant Mario M ndez.          ______               Paul J. Garrity,  by appointment of the Court, for appellant               _______________          Pedro Gonz lez.               Karl R.D. Suchecki, by appointment  of the Court, with  whom               __________________          Jennifer  Petersen  and Petersen  &  Suchecki were  on  brief for          __________________      _____________________          appellant Hannover Alberto Segura.               William  F.  Sinnott,  Assistant  U.S. Attorney,  with  whom               ____________________          Donald K.  Stern,  United  States  Attorney,  was  on  brief  for          ________________          appellee.                                 ____________________                                   January 6, 1998                                 ____________________                                        ____________________          *  Of the Eleventh Circuit, sitting by designation.          **  Of the District of New Hampshire, sitting by designation.                                         -2-                    GODBOLD, Senior Circuit Judge.  This appeal arises from                    GODBOLD, Senior Circuit Judge.                             ____________________          the  conviction of four defendants, Mario M ndez, Pedro Gonz lez,          George Berr os, and  Hannover Alberto Segura of  various offenses          relating to possession and distribution of heroin.  Their arrests          and  convictions were  the result  of an extended  undercover and          surveillance  operation  conducted  by   law  enforcement  agents          seeking to  discover the source  of an increased heroin  trade in          Portland, Maine.   Each defendant was convicted  of participating          in a  conspiracy to  possess  and distribute  heroin and  various          other crimes.   They  appeal, questioning  their convictions  and          their sentences.  We AFFIRM the convictions and sentences.                                   FACTUAL SUMMARY                                   FACTUAL SUMMARY                    The  following  factual  synopsis  summarizes  evidence          introduced at trial.   The facts  are resolved in the  light most          favorable to  the verdict and  consistent with the record,  as is          required by our  standard of  review in  an appeal  from a  final          judgment of  conviction. U.S.  v. Maraj, 947  F.2d 520,  522 (1st                                   ____     _____          Cir. 1991).                    Between July 8,  1994 and August 23,  1994, Agent Scott          Pelletier of  the Maine Drug  Enforcement Agency engaged  in four          heroin transactions  with a man  named Pablo, later proved  to be          Mario M ndez.  Pelletier had been introduced to Pablo by Lawrence          Freeman,  a   cooperating  government  informant   familiar  with          regional drug trade.  Each of the four transactions took place in          Lowell, Massachusetts,  where all  four defendants  resided.   In          each transaction Pelletier  purchased between 50 and  500 bags of                                         -3-          heroin  from Pablo.   During  the course  of these  transactions,          Pelletier saw Gonz lez accompanying  and assisting M ndez several          times and witnessed Segura conducting counter-surveillance at two          different  locations  on  July  8,   1994.    After  the   fourth          transaction between Pelletier and  M ndez, which took place at  a          residence located  at 36  Park Street,  law enforcement  officers          began  arresting individuals involved.  Gonz lez was found hiding          near the Merrimack River, and M ndez was arrested outside 36 Park          Street, later shown to be the location of the heroin "store" that          the conspiracy operated.                    The  police  then  executed a  search  warrant  for 173          University  Avenue,  also  in Lowell,  Massachusetts.    Based on          extensive  surveillance   and  investigation  the   officers  had          identified numerous phone  calls between the residence  of M ndez          and  173 University  Avenue and  between 36  Park Street  and 173          University.   Upon entering  the apartment  they observed  Segura          running from  the bathroom  where plastic  bags containing  white          powder were going  down the toilet.  Also,  within 173 University          Avenue, the officers  seized numerous items of  drug distribution          paraphernalia, including scales, sieves, and a "No Way Out" stamp          used for labeling the type  of heroin purchased by Pelletier from          M ndez.   They also found a large amount  of cash, 107.6 grams of          crack cocaine and a loaded .357 Magnum handgun.                    Police next executed  a search warrant  at 205 and  203          University  Avenue  where  they  arrested   George  Berr os,  the          resident.   There the  officers seized  large amounts  of heroin,                                         -4-          crack  cocaine, and  various  items  identified  as  distribution          paraphernalia  and  found  a notebook  containing  the  telephone          number for 173 University Avenue.                    Other  evidence  at  trial  included the  testimony  of          Christopher  Coughlin, who admitted  purchasing heroin  and crack          from  the defendants.  Coughlin identified  M ndez  as Pablo  and          Gonz lez as a man who  participated in the transactions but whose          name he did not know.                     After  a nineteen  day  trial,  the  jury  returned  a          verdict convicting each  defendant of various counts  of the nine          count  indictment.   All  appellants were  convicted of  Count I,          which  charged  that   the  defendants  had  participated   in  a          conspiracy to possess with intent to distribute and to distribute          heroin in violation  of 21 U.S.C.    846.  After  considering the          presentencing  report of  probation  officers,  as  well  as  the          objections  of both  parties to  the  report, the  district court          sentenced the four defendant to various prison terms ranging from          84 months for Berr os to 151 months for M ndez.                                      DISCUSSION                                      DISCUSSION                    We  have considered the arguments of each defendant and          find no error in their convictions or sentences.  Accordingly, we          affirm.   Because each  individual raises different  and numerous          issues and  each is  represented by  different  counsel, we  will          address  the contentions of  each defendant separately  with some          necessary repetition.                                      I.  M ndez                                         -5-                    M ndez  was convicted  of  Counts  I-V,  consisting  of          various  charges relating to possession and conspiracy to possess          heroin  and  cocaine with  the  intent  to  distribute.   He  was          sentenced  to  151  months  for  each  conviction  to  be  served          concurrently.     The  sentence   was  the   result  of   several          enhancements  which M ndez  contests  and a  significant downward          departure.  The  district court explained the  downward departure          by noting  that the lengthy  sentences for possession  of cocaine          base  (crack)   were  unjustified  because  the   conspiracy  was          primarily one to distribute heroin  rather than crack.  The court          found that, by including the amount of confiscated  crack cocaine          in the sentencing calculation, the sentence of each defendant was          increased by as much as six  levels.  The court acknowledged that          its  reason could  be  construed  as  a  discouraged  ground  for          departure but found  that the case fell  out of the  heartland of          prescribed  conduct, thus  warranting departure.   This  downward          departure is not  questioned by the government;  therefore, we do          not reach whether it  was proper.  The  departure resulted in  an          offense  level of 35  for M ndez.  Based  on his criminal history          category he received a 151 month sentence.                    We affirm M ndez's convictions and sentences.                       A.  Testimony of defense witness Fortin                    M ndez contends that his  conviction should be reversed          because he was precluded  from offering the testimony  of Loretta          Fortin.  The essence of her testimony would have been that M ndez          was not the "Pablo" she was  introduced to during a drug sale  in                                         -6-          June of 1994.   Furthermore, M ndez called Fortin  to discuss her          meeting  with Special  Agent  Connick in  August of  1994, during          which  she  identified  the photograph  of  another  defendant as          Pablo.   The relevancy  of this testimony  is that  an individual          named Pablo  was the  supposed leader of  the conspiracy  and the          dealer with  whom the  government initially  dealt.   Differences          existed as to which member  of the conspiracy was actually Pablo,          but several witnesses testified that M ndez was in fact Pablo and          that M ndez carried a beeper with the number belonging to Pablo.                    The  substance of  Loretta Fortin's  proposed testimony          was that she had one meeting  with Pablo in which he entered  the          back  seat  of her  car while  she  remained in  the front.   Her          husband introduced  the man as  Pablo, and they conducted  a drug          transaction.  Fortin  was willing to testify that  M ndez was not          the Pablo that  entered her car and that she selected a different          defendant as Pablo  from police photographs.  The  court excluded          this testimony because  it was based on  the inadmissable hearsay          of the  introduction of  Pablo by her  husband.   M ndez contends          that  this  exclusion  was  erroneous  because  Federal  Rule  of          Evidence 801(d)(1)(c) provides that if a witness is available for          cross examination,  prior statements  of  identification are  not          hearsay.   This assertion  misses the  point.   Fortin's proposed          testimony about her  husband's introduction of Pablo  created the          hearsay problem, not her prior identification statements to Agent          Connick.  To  make her testimony  credible she had to  admit that          her  knowledge  of Pablo's  identity  was  based on  the  hearsay                                         -7-          statement of her husband - "this is Pablo."                    By  echoing   her  husband's  introduction   of  Pablo,          Fortin's proposed  testimony meets the prerequisites  of hearsay.          The  introduction  of  Pablo  is  a statement  not  made  by  the          declarant in testimony  offered to prove the truth  of the matter          asserted.    For Loretta  Fortin's  testimony to  be  tenable the          statement made by her  husband must have been  true.  Because  we          have  no  way  of  verifying that  Mr.  Fortin  was  sufficiently          familiar with Pablo to identify him to Mrs. Fortin, her testimony          about Pablo is classic hearsay and was properly excluded.                    Accordingly,  the  district   court  did  not  err   in          disallowing  Fortin's testimony on hearsay grounds.  Moreover, if          error, it would have been harmless.  Even if the introduction was          not hearsay, given  Fortin's limited interaction with  Pablo, the          weight  of her  testimony  could  not  overcome  the  substantial          testimony of other  credible witnesses who had more  contact with          M ndez/Pablo and  who testified  that M ndez  was in  fact Pablo.          See U.S. v. Southard,  700 F.2d 1, 21  (1st Cir. 1983)  (harmless          ___ ____    ________          error  to improperly exclude admissible evidence as hearsay where          substantial evidence existed to convict defendant).                 B.  M ndez' sentence was based on acquitted conduct                    M ndez also challenges  the fact that his  sentence was          based  in part  on acquitted  conduct.  Specifically,  he asserts          that the crack cocaine seized  by the officers during the arrests          should not have  been considered for sentencing  purposes because          he   was  acquitted  on   all  counts  involving   possession  or                                         -8-          distribution of cocaine.  This  assertion has no merit because "a          jury's verdict of acquittal does not prevent the sentencing court          from considering conduct underlying the acquitted charge, so long          as  that  conduct has  been  proved  by  a preponderance  of  the          evidence."  U.S. v. Watts, 117 S. Ct. 633, 638 (1997).                      ____    _____                         C.  Enhancement of M ndez' sentence                      I.  M ndez' role as an organizer or leader                      __________________________________________                    The evidence  was not  insufficient to support  M ndez'          four-level  enhancement  as   an  organizer  or  leader   of  the          conspiracy as provided  by U.S.S.G    3B1.1(a).   Evidence showed          that M ndez was always the person contacted when heroin was to be          purchased,  and that  he always  returned  pager calls.   He  set          prices  and   determined  the  location   of  the   transactions.          Witnesses testified  that it  appeared that  men who  accompanied          M ndez were his  subordinates and that he  hired a person  to man          the heroin "store" at 36 Park Street from 9:00 a.m. to  6:00 p.m.          daily.  Other evidence offered by the government in its objection          to the  presentence report tended  to suggest that M ndez  was in          fact  the leader of  a conspiracy that consisted  of five or more          individuals.                    We will not  reverse a district court's finding of fact          regarding  the  role  of  the  defendant  unless  it  is  clearly          erroneous or based  on a mistake of  law.  U.S. v. Cali,  87 F.3d                                                     ____    ____          571,  574 (1st  Cir.  1996).   Based  on  the extensive  evidence          offered at  trial and to the sentencing  court that M ndez was in          fact  an  organizer  and  a  leader, we  hold  that  the  court's                                         -9-          sentencing was not clearly erroneous.                   ii.  Transacting of drug sales in a school zone                   _______________________________________________                    M ndez   questions   his  one-level   enhancement   for          transacting a  drug sale  in a  school zone  on  the ground  that          evidence of the proximity of a school to any drug transaction was          not introduced at trial.  However, the record indicates that such          evidence was  introduced at  the sentencing hearing  and was  not          objected to by any defendant.  The evidence supporting the school          zone  enhancement consisted  of an  affidavit  signed by  Special          Agent Bruce  Tavers stating  that the  drug transactions  at Fort          Hill Park in Lowell, Massachusetts took place within one thousand          feet of a junior high school.                    At a sentencing hearing the court may consider evidence          that would  be inadmissable  at trial so  long as  the sentencing          court determines that the  evidence has a "sufficient  indicia of          reliability  to support its probable accuracy."  U.S. v. Tardiff,                                                           ____    _______          969  F.2d 1283,  1287 (1st Cir.  1992).   The affidavit of  a law          enforcement   officer  familiar  with  the  locale  of  the  drug          transaction and  the  surrounding area  is sufficiently  reliable          that a court  can accept it as evidence  for sentencing purposes.          M ndez  did  not object to  this evidence, and  we find no  plain          error.  The  affidavit was properly admitted to  support the one-          level school zone enhancement.                     iii.  Codefendant's possession of a firearm                     ___________________________________________                    M ndez'  two-level  enhancement  for  possession  of  a          firearm during the  drug offense was not error  although he never                                         -10-          actually  possessed  or  used  a  gun  during  any  of  the  drug          transactions.  He  was arrested at a different  locale from where          the gun was found,  but evidence  showed that he was seen exiting          the  residence where  the gun  was found,  that he had  made many          calls  to this residence, that the residents were coconspirators,          and  that the  residence was  a  center for  the drug  operation.          These  facts are  sufficient  for  the  enhancement  because  the          sentencing guidelines require  only that a gun  be present during          some  portion of  an ongoing crime.  See U.S.S.G.    2D1.1(b)(1),                                               ___          commentary at  n.3.  Because  the defendants were convicted  of a          __________          continuing conspiracy the firearm was present during the crime.                    Once  the   presence   of  a   weapon  is   established          enhancement is  proper unless the  defendant demonstrates special          circumstances that show a clear improbability that the weapon was          connected to the drug  offense.  U.S. v. Lagasse, 87  F.3d 18, 22                                           ____    _______          (1st Cir. 1996).   The government offered proof that the  gun was          present during  the drug  conspiracy, and  the defendant  did not          offer  any special circumstances  that would make  the connection          between   the  gun  and  the  crime  improbable;  therefore,  the          enhancement was proper.1                                        ____________________          1  M ndez mentions Bailey v. U.S., 116 S. Ct. 501,  508-9 (1995),                             ______    ____          as authority that  the enhancement was  improper, but Bailey  has                                                                ______          been  construed as not affecting sentencing enhancements based on          the possession of firearms during  certain offenses.  See U.S. v.                                                                ___ ____          Gary, 74 F.3d 304,  317 n.11 (1st Cir.), cert denied,  116 S. Ct.          ____                                     ___________          2567 (1996).  Bailey only restricted convictions under  18 U.S.C.                        ______             924(c)(1)  to  those  instances  where  a  defendant  actively          employed a firearm during the offense. Bailey, 116 S. Ct. at 508-                                                 ______          9(recognizing that sentencing guidelines may provide enhancements          for mere possession of a firearm during other offenses).                                         -11-                                    II.  Gonz lez                    Pedro Gonz lez  was convicted of  Counts I,  IV, and  V          consisting  of   various  charges  relating  to   possession  and          conspiracy to possess  heroin with intent to distribute.   He was          sentenced to  135 months  concurrent for  each  conviction.   His          original  sentence was calculated  by his being  held responsible          for  113.7  grams of  crack  cocaine  and  307 grams  of  heroin,          resulting  in a base  offense level of  33.  He was  then given a          two-level adjustment for  obstruction of justice for  providing a          false name and  personal history and a  two-level enhancement for          possession  of a  firearm  during  a  drug  trafficking  offense,          resulting  in a  total offense level  of 37.   The district court          departed    downward  four  levels  because  it  found  that  the          conspiracy  was primarily for  the distribution of  heroin rather          than crack  cocaine.   Because he found  that the  crack offenses          were  outside   the  heartland  offenses  under   the  applicable          guideline, he granted a  four-level downward departure, resulting          in a new  base offense level of  33.  After the  court considered          his criminal history category, he  was sentenced to 108 months in          prison.  We affirm his sentence.                        A. Obstruction of justice enhancement                    Gonz lez contends that  he did not deserve  a two-level          enhancement  for   obstruction  of  justice  because   the  false          statements  he  made concerning  his identity  did not  amount to          materially false  information as  required by  U.S.S.G.    3C1.1.          Section  3C1.1  provides   that  a  two  level   enhancement  for                                         -12-          obstruction  is  proper  where a  defendant  provides "materially          false information" to a judge, magistrate or a probation officer.          U.S.S.G.    3C1.1, commentary at  n.3(f)&(h).  For information to                             __________          be material it need only have  the potential to affect the  issue          under determination, including incarceration period, condition of          release, or whether  the wrongful conduct  has been mitigated  in          some way. U.S.S.G.   3C1.1, commentary at n.5; U.S. v. Kelley, 76                                      __________         ____    ______          F.3d 436, 441 (1st Cir. 1996).                    By offering  a false name, date of  birth, and personal          history throughout the trial and during sentencing Gonz lez hid a          prior conviction,  his age, his  residence, and the fact  that he          was  seeking to defraud immigration officials by participating in          a sham  marriage for the  purpose of obtaining citizenship.   The          substance and nature of these misrepresentations are material for          their potential to affect sentencing determinations.  Because the          falsehoods "could have  impacted the decisions of  the sentencing          court" the two-level  enhancement for obstruction of  justice was          proper.  Kelley, 76 F.3d at 441.                   ______              B. Failure to prove the substance found was crack cocaine                    The government  did not fail  to sustain its  burden of          proving  that the substance  confiscated from the  conspiracy was          actually  crack cocaine rather  than some other  form of cocaine.          Gonz lez did  not argue at trial that the substance may have been          some other form of cocaine than crack, thus we would have to find          plain  error.   We cannot  find  plain error  unless the  desired          factual  finding is  the  only one  rationally  supported by  the                                         -13-          record below. See U.S. v.  Olivier-D az, 13 F.3d 1, 12  (1st Cir.                        ___ ____     ____________          1993).    Gonz lez did  not  offer  any  evidence to  combat  the          government' assertion that the substance  was crack.  Only if the          record clearly  showed  that the  substance could  not have  been          crack would we be justified in finding plain error.  Id.  Because                                                               __          the record supports  the district court's finding  for sentencing          purposes, there was no plain error.                        C.  Ineffective assistance of counsel                    Nothing in the record supports Gonz lez' assertion that          he was denied  effective assistance of counsel  when his attorney          advised  him that  he  could  not receive  a  lesser sentence  by          pleading guilty  to the crime.   "We have held  with a regularity          bordering  on   the  monotonous  that   fact-specific  claims  of          ineffective assistance cannot  make their debut on  direct review          of    criminal  convictions,  but,  rather,  must  originally  be          presented to,  and acted upon by, the trial  court."  See U.S. v.                                                                ___ ____          Mala, 7 F.3d 1058,  1062-63 (1st Cir  1993); U.S. v. McGill,  952          ____                                         ____    _______          F.2d 16, 19 (1st Cir. 1991).                      Since  claims  of  ineffective assistance                      involve a binary  analysis--the defendant                      must   show,     first,  that   counsel's                      performance      was     constitutionally                      deficient   and,   second,     that   the                      deficient   performance  prejudiced   the                      defense,  such  claims  typically require                      the  resolution  of factual  issues  that                      cannot  efficaciously be addressed in the                      first instance by  an appellate tribunal.                      In addition,  the  trial judge, by reason                      of his  familiarity  with  the  case,  is                      usually in the   best position to  assess                      both   the    quality   of    the   legal                      representation afforded  to the defendant                      in the  district court and the  impact of                                         -14-                      any  shortfall in  that   representation.                      Under ideal  circumstances, the  court of                      appeals should have   the benefit of this                      evaluation;    elsewise,  the  court,  in                      effect, may be playing  blindman's buff.          Mala,  7 F.3d  at 1062-63  (citation  omitted).   This court  has          ____          dismissed without  prejudice portions of an appeal relating to an          ineffective  assistance claim  and  suggested that  the defendant          should litigate such a claim through the medium of an application          for post-conviction relief.  See  Mala, 7 F.3d at 1063.   Because                                       ___  ____          we have no factual record upon which to judge Gonz lez' claims of          ineffective assistance, we reject this  claim for now and suggest          that the  proper forum for  his claim is through  application for          post-conviction relief.                                    III.  Berr os                    George Berr os was convicted  of Counts I, VI, and  VII          consisting  of  various  charges   relating  to  possession   and          conspiracy  to  possess   heroin  and  cocaine  with   intent  to          distribute.   He was  sentenced to 84  months concurrently.   His          original sentence was  calculated by holding him  responsible for          26.08  grams of  crack  cocaine  and 307  grams  of heroin  which          resulted in a base offense level of 30.  He was then given a two-          level adjustment for obstruction of justice for providing a false          name and personal history, resulting  in a total offense level of          32.   The  court then  departed downward  between three  and four          levels  based on  reasoning discussed  previously concerning  the          nature  of the conspiracy.   After consideration  of his criminal          history category, Berr os was sentenced to 84 months.                                         -15-                    Berr os questions both his conviction and sentence.  We          affirm both.                           A.  Sufficiency of the evidence                    Berr os   argues  that   the  evidence   presented  was          insufficient to sustain his  conviction for conspiracy.  He  says          that the government presented no  evidence that he assented to be          a part  of the  conspiracy or participated  in the  conspiracy to          distribute  heroin.   We  customarily  must  decide  whether  the          evidence,    considered  in  the  light  most  favorable  to  the          government  -  "a perspective  that  requires  us to  draw  every          plausible inference in line with the verdict and to resolve every          credibility  conflict  in the  same  fashion"  -  would  allow  a          rational jury to  find that guilt was proved  beyond a reasonable          doubt.  U.S. v. Santiago, 83 F.3d 20, 23 (1st Cir. 1996).                  ____    ________                    Sufficient evidence existed  for the jury to  find that          Berr os was a member of the conspiracy.  Police officers observed          him carrying  several bags of  heroin and found large  amounts of          drugs   and   distribution   paraphernalia   at  his   residence.          Furthermore,  the sentencing  court found  that  Berr os was  the          supplier  of heroin  to M ndez  and the  other conspirators.   We          reject  Berr os' contention that the  evidence showed only that a          buyer-seller  relationship  rather   than  a  conspiracy  existed          between him and M ndez.                    Whether a true  conspiracy exists turns on  whether the          seller knew that  the buyer was reselling the  drugs and intended          to  facilitate  those  resales.   Santiago,  83  F.3d  at  23-24.                                            ________                                         -16-          Therefore,  knowledge   and  intent   are  the  touchstones   for          sufficiently  proving a  conspiracy.    The government  presented          sufficient evidence to show that Berr os knew that M ndez and his          associates were reselling the heroin  and that he intended to aid          these transactions  by supplying large  amounts of heroin  to the          conspiracy.  Evidence  of Berr os' involvement in  the conspiracy          was sufficient for a reasonable jury to convict.                        B.  Obstruction of justice enhancement                    Much like appellant  Gonz lez, Berr os challenges  that          portion  of his sentence  resulting from a  two-level enhancement          for  obstruction  of  justice.    He  contends  that   the  false          information he provided  to the government  was not material  and          did  not significantly  impede  investigation or  prosecution  as          required by  the guidelines for an obstruction enhancement.  Once          again  we reject  this argument.   Berr os  not only  presented a          false  name to the magistrate judge and district court throughout          trial, but he hid  the status of  his citizenship by claiming  to          come  from Puerto  Rico.   By  hiding his  true identity  Berr os          concealed that he had previously been arrested by the Immigration          and Naturalization  Service in 1991  and had  fled after  posting          bail.                    For  information to be  material it need  only have the          potential  to  affect  an issue  under  determination,  including          incarceration  period,  condition  of  release,  or  whether  the          wrongful conduct  has  been mitigated  in  some way.  U.S.S.G.             3C1.1, commentary at n.5; U.S. v.  Kelley, 76 F.3d 436, 441  (1st                 __________         ____     ______                                         -17-          Cir.  1996).   Giving a  false identity  and  pretending to  be a          citizen of  this country, as  well as concealing facts  that made          Berr os a known flight risk, could have affected some issue under          determination by the court, including bail.  Although he provided          his  real   identity  to  the  probation  officer  prior  to  the          preparation  of  the  presentencing  report  and  the  sentencing          hearing, Berr os  had participated  in an  entire criminal  trial          under a false  name and status, which amounted  to an obstruction          of justice.              C.  Sentencing Guidelines and the equal protection clause                    Berr os  contends that the court enforced "a vague law"          when it refused to treat crack cocaine as equal to powder cocaine          for sentencing purposes.  Berr os noted that  the U.S. Sentencing          Commission has prepared a report demonstrating the disparity that          exists between the  sentencing guidelines for powder  cocaine and          crack  cocaine.   We  are bound  by the  prior decisions  of this          circuit which  have rejected this  argument.  See, e.g.,  U.S. v.                                                        ___  ____   ____          Andrade, 94 F.3d  9, 14-15 (1st Cir. 1996);  U.S. v. Singleterry,          _______                                      ____    ___________          29 F.3d  733, 739-41 (1st Cir. 1994).  Until the en banc court of          this circuit, the U.S. Supreme Court, or Congress  itself accepts          this assertion of disparity and finds it untenable, challenges to          the  sentencing  guidelines  based   on  the  disparity   between          sentences for crack cocaine  and powder cocaine will continue  to          fail.  See  Irving v. U.S., 49  F.3d 830, 833-4 (1st  Cir. 1995);                 ___  ______    ____          U.S. v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991).          ____    _____                                     IV.  Segura                                         -18-                    Segura  was convicted  by a  jury  of Counts  I and  II          consisting  of   various  charges  relating  to   possession  and          conspiracy  to  possess heroin  and  cocaine with  the  intent to          distribute.  He  was sentenced to 108 months  for each conviction          concurrently.   His original  sentence was calculated  by holding          him responsible for 113.7 grams of crack cocaine and 307 grams of          heroin,  resulting in a  base offense level  of 32.   He was then          given  a one-level  adjustment for  transacting drug  sales in  a          school  zone and  a two  level  enhancement for  possession of  a          firearm during  the offense,   this resulting in a  total offense          level of 35.  The court then departed downward  four levels based          on the  reasoning discussed  above concerning  the nature of  the          conspiracy.     After  consideration  of   his  criminal  history          category, Segura was sentenced to 108.                    He challenges his conviction and sentence and we affirm          both.                           A.  Sufficiency of the evidence                    Segura maintains that  the evidence presented at  trial          was insufficient to establish that he knowingly and intentionally          possessed heroin with the intent to distribute it or conspired to          do so.   In  considering whether  sufficient evidence to  convict          exists, we must consider the evidence in the light most favorable          to the  verdict and  reverse only  if no rational  trier of  fact          could have found  him guilty.  U.S.  v. Santiago, 83 F.3d  20, 23                                         ____     ________          (1st Cir. 1996).  The fact that the entire case against Segura is          based  on circumstantial,  rather than  direct,  evidence has  no                                         -19-          bearing  on  sufficiency;  both  types  of  evidence  provide  an          adequate basis for conviction.  See  U.S. v. Valerio, 48 F.3d 58,                                          ___  ____    _______          63 (1st Cir. 1995).                     The government presented  two pieces of evidence  that          tended to link Segura to the conspiracy.  First was the testimony          of Agent Scott  Pelletier of the  Maine Drug Enforcement  Agency,          who  identified  Segura   as  the  person  engaged   in  counter-          surveillance  during at  least  one  of  the  drug  transactions.          Pelletier  was the  undercover agent  who  participated in  these          transactions, and his testimony about the possibility of counter-          surveillance was  corroborated by a  videotape that showed  a car          suspiciously  circling the area  where the drug  transaction took          place.                    Second  was testimony  of officers  on  the scene  when          Segura  and  others  were  arrested  at  173  University  Avenue.          Officers testified that they saw Segura running from the bathroom          and   heard  the  toilet  flushing  and  Inspector  Robert  Reyes          testified that when he  ran into the bathroom he saw plastic bags          containing a white  powdery substance go down the  toilet.  After          Segura and others were arrested the police found  drugs, numerous          items  of distribution paraphernalia and  a loaded .357 Magnum at          the scene.                     Taken together,  Pelletier's identification  of Segura          as  the counter-surveillance man  and Reyes' testimony  about the          toilet were sufficient  to convict.  Construing this  evidence in          favor of  the government,  Segura's presence at  two of  the drug                                         -20-          transactions,  his  presence  at  what appears  to  be  the  drug          conspiracy's center of operations, and his attempt to  dispose of          evidence  of  the conspiracy,  taken  together show  that  he had          knowledge of the conspiracy and  that he intended to  participate          in it.   See U.S.  v. Santiago, 83  F.3d 20,  23 (1st cir.  1996)                   ___ ____     ________          (knowledge and intent are touchstones of conspiracy  conviction).          We  cannot say  that  no  reasonable jury  could  have found  him          guilty.                                B.  Segura's sentence                     I.  A codefendant's possession of a firearm                     ___________________________________________                    Segura, like M ndez,  contends that he should  not have          received  a two-level  enhancement for  possession  of a  firearm          during  the drug offense  because he never  actually possessed or          used  a gun.  He was arrested  at the residence where the gun was          found, and evidence existed that this residence was the center of          operations  for the drug conspiracy.  These facts are sufficient.          The  sentencing guidelines  require only  that a  gun be  present          during  some  portion  of  an  ongoing crime.    See  U.S.S.G.                                                              ___          2D1.1(b)(1),  commentary  at  n.3.  Because  the defendants  were                        __________          convicted of  a continuing  conspiracy, the  firearm was  present          during the crime.                    Once   the  presence   of  a   weapon   is  established          enhancement is  proper unless the defendant  demonstrates special          circumstances that show a clear improbability that the weapon was          connected to  the drug offense.  U.S. v.  Lagasse, 87 F.3d 18, 22                                           ____     _______          (1st Cir. 1996).  Segura  did not offer any special circumstances                                         -21-          that  would make  the connection  between the  gun and  the crime          improbable.  The enhancement was proper.                   ii.  Transaction of a drug sale in a school zone                   ________________________________________________                    Segura argues  that the  government did  not offer  any          reliable proof that  any of the  drug sales  took place within  a          protected zone. He  acknowledges that the government  offered the          affidavit of Special Agent Bruce Tavers as proof of the proximity          of  a junior high  school; however,  he says  that this  proof is          insufficient because it lacked an evidentiary foundation.                    In  this  circuit  a   sentencing  court  may  consider          evidence that would  be inadmissable at trial under  the rules of          evidence  so long  as the  sentencing court  determines  that the          evidence has a "sufficient indicia of reliability  to support its          probable accuracy."   U.S. v.  Tardiff, 969 F.2d 1283,  1287 (1st                                ____     _______          Cir. 1992).   The affidavit of a  law enforcement officer  who is          familiar  with  the  locale  of  the  drug  transaction  and  the          surrounding area is sufficiently reliable that a court can accept          it as evidence for sentencing purposes.  Segura's enhancement for          transacting  drug sales  within a  school  zone was  sufficiently          supported and proper.                    iii.  Segura's sentence was partially based on                    ______________________________________________                         acquitted conduct                         _________________                    Segura  also challenges the fact that his sentence was,          in  part,  based   on  acquitted  conduct,  i.e.,   his  sentence          calculation should not have included the amount of  crack cocaine          found at the arrest scene because he was acquitted of all charges          involving possession or distribution of crack cocaine.  "A jury's                                         -22-          verdict of acquittal  does not prevent the  sentencing court from          considering conduct underlying  the acquitted charge, so  long as          that conduct has been proved by a preponderance of the evidence."          U.S. v. Watts, 117 S. Ct. 633, 638 (1997).          ____    _____                                      CONCLUSION                                      CONCLUSION                    We  AFFIRM   the  convictions  and   sentences  of  all                        AFFIRM          appellants.                                         -23-
