August 17, 1993   UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1896

                        UNITED STATES,
                          Appellee,

                              v.

                     KENNETH INNAMORATI,
                    Defendant, Appellant.

                                        

No. 91-1897

                        UNITED STATES,
                          Appellee,

                              v.

                      WILLIAM THOMPSON,
                    Defendant, Appellant.

                                        

No. 91-1898

                        UNITED STATES,
                          Appellee,

                              v.

                JAMES GRADY, a/k/a THE REBEL,
                    Defendant, Appellant.

                                         

No. 91-1899

                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, SR.,
                    Defendant, Appellant.

                                         

No. 91-1900

                        UNITED STATES,
                          Appellee,

                              v.

                       WILLIAM LETTERS,
                    Defendant, Appellant.

                                         

No. 91-1901

                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, JR.,
                    Defendant, Appellant.

                                         

No. 91-1902

                        UNITED STATES,
                          Appellee,

                              v.

                PHILLIP BARGALLA, a/k/a FLIP,
                    Defendant, Appellant.

                                        

No. 91-1903

                        UNITED STATES,
                          Appellee,

                              v.

                JAMES LITTERIO, a/k/a MICKEY,
                    Defendant, Appellant.

                                         

No. 91-1924

                        UNITED STATES,
                          Appellee,

                              v.

                       JOHN BOISONEAU,
                    Defendant, Appellant.

                                         

No. 92-1253

                        UNITED STATES,
                          Appellee,

                              v.

                       JOSEPH GILBERTI,
                    Defendant, Appellant.

                                         

                         ERRATA SHEET

   The opinion of the Court issued on June 17, 1993, is amended
as follows:

   On page 30, lines 1-2 of  the fourth paragraph of the  block
quote, replace "Paula Bufton" with "Paula [sic] Bufton".

July 8, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1896
                        UNITED STATES,
                          Appellee,

                              v.

                     KENNETH INNAMORATI,
                    Defendant, Appellant.

                                         

No. 91-1897
                        UNITED STATES,
                          Appellee,

                              v.

                      WILLIAM THOMPSON,
                    Defendant, Appellant.

                                         

No. 91-1898
                        UNITED STATES,
                          Appellee,

                              v.

                JAMES GRADY, a/k/a THE REBEL,
                    Defendant, Appellant.

                                         

No. 91-1899
                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, SR.,
                    Defendant, Appellant.

                                        

                                         
No. 91-1900
                        UNITED STATES,
                          Appellee,

                              v.

                       WILLIAM LETTERS,
                    Defendant, Appellant.

                                         

No. 91-1901
                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, JR.,
                    Defendant, Appellant.

                                         

No. 91-1902
                        UNITED STATES,
                          Appellee,

                              v.

                PHILLIP BARGALLA, a/k/a FLIP,
                    Defendant, Appellant.

                                         

No. 91-1903
                        UNITED STATES,
                          Appellee,

                              v.

                JAMES LITTERIO, a/k/a MICKEY,
                    Defendant, Appellant.

                                         

No. 91-1924
                        UNITED STATES,
                          Appellee,

                              v.

                       JOHN BOISONEAU,
                    Defendant, Appellant.

                                         

                                         
No. 92-1253
                        UNITED STATES,
                          Appellee,

                              v.

                       JOSEPH GILBERTI,
                    Defendant, Appellant.

                                         

                         ERRATA SHEET

The opinion of  the Court issued on June  17, 1993, is amended  as
follows:

On  page 44,  lines 14-16:    replace  the sentence  "Although the
notation was produced prior to the cross-examination of Scott, counsel
for  Grady declined  to ask  Scott any  questions." with  the sentence
"Grady sought to  call O'Brien to the stand to  question him about the
                          
notation,  but  he never  sought to  recall  Scott for  further cross-
examination once the notes were produced."

June 23, 1993 
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1896
                        UNITED STATES,
                          Appellee,

                              v.

                     KENNETH INNAMORATI,
                    Defendant, Appellant.

                                         

No. 91-1897
                        UNITED STATES,
                          Appellee,

                              v.

                      WILLIAM THOMPSON,
                    Defendant, Appellant.

                                         

No. 91-1898
                        UNITED STATES,
                          Appellee,

                              v.

                JAMES GRADY, a/k/a THE REBEL,
                    Defendant, Appellant.

                                         

No. 91-1899
                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, SR.,
                    Defendant, Appellant.

                                        

                                         
No. 91-1900
                        UNITED STATES,
                          Appellee,

                              v.

                       WILLIAM LETTERS,
                    Defendant, Appellant.

                                         

No. 91-1901
                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, JR.,
                    Defendant, Appellant.

                                         

No. 91-1902
                        UNITED STATES,
                          Appellee,

                              v.

                PHILLIP BARGALLA, a/k/a FLIP,
                    Defendant, Appellant.

                                         

No. 91-1903
                        UNITED STATES,
                          Appellee,

                              v.

                JAMES LITTERIO, a/k/a MICKEY,
                    Defendant, Appellant.

                                         

No. 91-1924
                        UNITED STATES,
                          Appellee,

                              v.

                       JOHN BOISONEAU,
                    Defendant, Appellant.

                                         

                                         
No. 92-1253
                        UNITED STATES,
                          Appellee,

                              v.

                       JOSEPH GILBERTI,
                    Defendant, Appellant.

                                         

                         ERRATA SHEET

The opinion of this Court issued on June  17, 1993, is amended  as
follows:

On  third page  under  list  of  attorneys "Levchuck  should  read
                                                    
Levchuk."
     

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1896
                        UNITED STATES,
                          Appellee,

                              v.

                     KENNETH INNAMORATI,
                    Defendant, Appellant.

                                         

No. 91-1897
                        UNITED STATES,
                          Appellee,

                              v.

                      WILLIAM THOMPSON,
                    Defendant, Appellant.

                                         

No. 91-1898
                        UNITED STATES,
                          Appellee,

                              v.

                JAMES GRADY, a/k/a THE REBEL,
                    Defendant, Appellant.

                                         

No. 91-1899
                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, SR.,
                    Defendant, Appellant.

                                        

                                         
No. 91-1900
                        UNITED STATES,
                          Appellee,

                              v.

                       WILLIAM LETTERS,
                    Defendant, Appellant.

                                         

No. 91-1901
                        UNITED STATES,
                          Appellee,

                              v.

                     ROBERT DEMARCO, JR.,
                    Defendant, Appellant.

                                         

No. 91-1902
                        UNITED STATES,
                          Appellee,

                              v.

                PHILLIP BARGALLA, a/k/a FLIP,
                    Defendant, Appellant.

                                         

No. 91-1903
                        UNITED STATES,
                          Appellee,

                              v.

                JAMES LITTERIO, a/k/a MICKEY,
                    Defendant, Appellant.

                                         

No. 91-1924
                        UNITED STATES,
                          Appellee,

                              v.

                       JOHN BOISONEAU,
                    Defendant, Appellant.

                                         

                                         
No. 92-1253
                        UNITED STATES,
                          Appellee,

                              v.

                       JOSEPH GILBERTI,
                    Defendant, Appellant.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Frank H. Freedman, Senior District Judge]
                                                     

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
                Aldrich, Senior Circuit Judge,
                                             
                  and Boudin, Circuit Judge.
                                           
                                         

J.  Michael McGuinness,  by  Appointment of  the Court,  with whom
                      
McGuinness &amp; Parlagreco was on brief for appellant Kenneth Innamorati.
                   
Diane  Powers, by Appointment of the Court,  for appellant William
             
Thompson.
Robert L. Rossi, by Appointment of  the Court, for appellant James
               
Grady.
Robert J. Danie, by Appointment of  the Court, with whom Bonavita,
                                                                  
Gordon, and Danie, P.C. was on brief for appellant Robert DeMarco, Sr.
                   
Michael  C.  Bourbeau, by  Appointment  of  the Court,  with  whom
                     
Bourbeau and Bourbeau was on brief for appellant William Letters.
                 
Warren R. Thompson,  by Appointment  of the  Court, for  appellant
                  
Robert DeMarco, Jr.
Henry  C. Porter,  by  Appointment  of the  Court,  for  appellant
                
Phillip Bargalla.
Arthur R. Silen, by Appointment of  the Court, for appellant James
               
Litterio.
Frances  L. Robinson,  by  Appointment  of the  Court,  with  whom
                    
Davis, Robinson &amp; White was on brief for appellant John Boisoneau.
                   
Dwight M. Hutchison,  by Appointment  of the Court, for  appellant
                   
Joseph Gilberti.
Andrew Levchuk,  Assistant United  States Attorney,  with whom  A.
                                                                  
John Pappalardo, United States  Attorney, and Kevin O'Regan, Assistant
                                                       
United States Attorney, were on brief for appellee. 

                                         

                        June 17, 1993
                                         

     BOUDIN,  Circuit Judge.   In  this case  ten individuals
                           

challenge, on  a wide  variety of grounds,  their convictions

and sentences following a jury  trial in the district court.1

All  ten  defendants  were  found  guilty  of  conspiring  to

distribute and  to possess with intent  to distribute cocaine

and  marijuana,  in  violation  of  21  U.S.C.       846  and

841(a)(1).  All defendants  except Thompson were convicted of

one  or  more  additional   counts  relating  to  the  ring's

activities.    For  the   reasons  that  follow,  we  reverse

defendant Grady's  conviction on one  count for  insufficient

evidence  and remand for resentencing, and we sustain each of

the remaining convictions and sentences.

                        I.  BACKGROUND

     The voluminous  testimony  and other  evidence  properly

introduced at  trial, viewed in  the light most  favorable to

the verdicts, see United  States v. Rivera-Santiago, 872 F.2d
                                                   

1073, 1078-79 (1st Cir.), cert. denied, 492  U.S. 910 (1989),
                                      

established the  following facts.  In  1984, Brian Fitzgerald

and Paul  Callahan--two co-conspirators who testified for the

government  at  trial--met  in  Walpole   penitentiary  while

serving terms of imprisonment  there.  The two men  formed an

                    

     1The ten are Kenneth Innamorati, William Thompson, James
Grady, Robert  DeMarco Sr.,  William Letters,  Robert Demarco
Jr., Phillip  Bargalla, James Litterio,  John Boisoneau,  and
Joseph Gilberti.  

                             -14-

alliance, agreeing  that upon their release  from prison they

would begin a drug distribution network.

     After their release, Callahan and Fitzgerald began  drug

dealing.  In  1985, they were  approached by an  intermediary

and  asked  if they  could supply  a  kilogram of  cocaine to

Kenneth  Innamorati  and   his  then-partner,  Noel  Bouvier.

Fitzgerald and  Callahan agreed to supply  the cocaine, which

they acquired  from a  source in Everett,  Massachusetts, and

then delivered  to Innamorati  in Framingham in  exchange for

$55,000.   About three months later,  Fitzgerald and Callahan

agreed to join forces  with Innamorati and Bouvier.   At that

time,  Innamorati's  principal  source  for  cocaine  was  an

individual in Boston.  Callahan and Fitzgerald each picked up

kilograms of  cocaine from the  supplier and delivered  it to

Innamorati, who weighed it, mixed it with other substances to

increase  its   volume,   and  separated   it  into   smaller

quantities.  Callahan and Fitzgerald then delivered the drugs

to Innamorati's customers.

     After a time, Innamorati lost the services of his Boston

supplier,  and  Callahan  began  supplying   Innamorati  with

cocaine from  Callahan's own sources.   Callahan made contact

with  an  individual named  Tom  Reilly in  Florida.   Reilly

ultimately  supplied  Callahan  and  Innamorati   with  large

quantities  of cocaine and marijuana on  a regular basis from

the  summer of 1985 onward.   In June  1985, Fitzgerald hired

                             -15-

defendant Grady, who drove a tractor-trailer,  to pick up the

cocaine and marijuana from  Reilly in Florida and haul  it to

Massachusetts.   Grady  made  this trip  about  once a  month

between  June 1985  and February 1988,  occasionally bringing

cash down to Florida to pay for prior shipments.

     Callahan  and Innamorati  developed an  elaborate system

for  storage  and distribution  of  the  narcotics once  they

reached  Massachusetts.   The  drugs were  stored in  several

different  locations.   For example,  some of the  drugs were

stashed in the trunk of a  car parked in a storage unit  at a

self-storage   facility   called  Hyperspace   in  Holliston,

Massachusetts.  Drugs were also  stored in a rented apartment

in  a  development  called  Edgewater  Hills  in  Framingham,

Massachusetts.   In May  1987, a  new apartment  in Edgewater

Hills was  selected.   Edward Tulowiecki, an  acquaintance of

Innamorati who was a star witness at trial, agreed to live in

the  apartment  and  assist  Innamorati;  Innamorati  paid  a

portion of the rent for the apartment.  

     This  Edgewater  Hills  apartment  became  the  base  of

operations   for  much   of  the   conspirators'  activities.

Innamorati and  Callahan moved  a considerable array  of drug

distribution  paraphernalia  into  the  apartment,  including

scales,  a  safe and  a  freezer.   Callahan  and  Innamorati

frequently came  to  the  apartment  to deliver  or  pick  up

packages of cocaine  and marijuana, or to prepare and package

                             -16-

them for distribution.  Tulowiecki was  not permitted to have

other guests in the apartment.

     Innamorati  used  beepers  and  cellular  telephones  to

facilitate his distribution activities.   Each of the persons

to whom he regularly distributed the narcotics was assigned a

code number.  To place an order, he or she would place a call

to Innamorati's beeper,  and then enter  the code number  and

the quantity sought; the order  would then be transmitted  to

the  digital  display  on  Innamorati's  beeper.   Innamorati

preferred   cellular  rather  than  ordinary  telephones  for

communications  relating  to  drug  distribution,  because he

believed that cellular telephones were more difficult to tap.

William  Thompson,  a former  Clinton  police  officer and  a

friend of Innamorati, acquired and installed several cellular

phones for Innamorati and registered the phones in Thompson's

own company name.

     Innamorati distributed cocaine and marijuana to numerous

individuals  between summer 1985 and February 1988, including

Thompson,   William   Letters,  James   Litterio,   and  John

Boisoneau;  each of  these purchasers  was assigned  a beeper

number  in Innamorati's  system.   Callahan had  a number  of

customers of his own during this period, including defendants

Robert DeMarco Sr., Robert  DeMarco Jr., Phillip Bargalla and

Joseph  Gilberti.   Generally there  was evidence  that these

                             -17-

persons resold  portions of  the cocaine they  purchased from

Callahan or Innamorati to others.

     In  November 1987  Jeffrey Scott,  a nephew  and cocaine

customer  of Callahan  who  was  also  in debt  to  Callahan,

contacted the  Drug Enforcement  Agency ("DEA") and  provided

information  about  Callahan's  activities.   This  began  an

extensive covert investigation  into the  Callahan/Innamorati

operation.  By late February 1988 the DEA had obtained enough

information  to execute  a series  of search warrants  at the

Hyperspace facility, Fitzgerald's and  Callahan's residences,

and  the Edgewater Hills apartment.   At the  latter site the

agents  found  two kilograms  of  cocaine  and 75  pounds  of

marijuana,   as  well  as  drug  distribution  paraphernalia,

records of  drugs transactions and  a small cache  of weapons

and ammunition.

     After a  32-day jury  trial conducted from  September to

November  1990,  all  ten  defendants  in  this  appeal  were

convicted.  In addition  to the common conspiracy count,  all

defendants except Thompson and Bargalla were convicted of one

or more  counts of  possession of cocaine  or marijuana  with

intent to distribute  in violation of 21  U.S.C.   841(a)(1);

Bargalla  was convicted  of  the lesser  included offense  of

simple possession.  In  addition, Innamorati was convicted of

using  a firearm in relation to a drug trafficking offense in

violation  of  18 U.S.C.     924(c)(1), and  of  conducting a

                             -18-

continuing criminal  enterprise in  violation of 21  U.S.C.  

848.

     The  ten  defendants  in  this  appeal  raise   numerous

separate  issues relating  either to conviction  or sentence.

In  certain instances,  claims  of error  are  made but  only

cursorily discussed.  Where  appropriate we have invoked "the

settled  appellate   rule  that  issues  adverted   to  in  a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived."  United States v. Zannino,
                                                            

895  F.2d 1,  17  (1st Cir.),  cert.  denied, 494  U.S.  1082
                                            

(1990).  Because a  number of the claims overlap,  we discuss

them by subject.

                        II.  SEVERANCE

     Innamorati,  Thompson, Grady, DeMarco  Sr., DeMarco Jr.,

Bargalla, and Gilberti challenge the  district court's denial

of their motions  to sever each of their trials from those of

their  co-defendants.   Defendants  argue that  severance was

necessary to protect them  from prejudice and the possibility

that the jury would fail to  consider the evidence separately

as to each defendant.

     Prejudice  from  joinder  can  come  in  various  forms,

including  jury confusion,  the  impact of  evidence that  is

admissible  against  only  some  defendants,  and "spillover"

effects where the crimes of some defendants are more horrific

or  better documented than the crimes of others.  But joinder

                             -19-

is  normally  economical--especially  where   defendants  are

charged with the same  core crime--and clear instructions can

often  confine the  risk of  prejudice.   Accordingly, it  is

settled that defendants are  not entitled to severance merely

because it would improve  their chances of acquittal; rather,

substantial prejudice "amounting to a miscarriage of justice"

must  be  proved before  a  severance is  mandatory.   United
                                                             

States  v. Sabatino, 943 F.2d 94, 96-97  (1st Cir. 1991).  We
                   

review the refusal of a trial court to  grant a severance for

abuse of discretion, United States v.  Johnson, 952 F.2d 565,
                                              

581 (1st Cir. 1991), cert. denied,  113 S. Ct. 58 (1992), and
                                 

we find no such abuse in this case.

     Despite the number of defendants, there is no indication

of jury confusion in this case.  The government in summing up

separated the evidence as to each defendant.  The trial judge

gave  the  customary   instruction,  emphasizing  that   each

defendant  must be  judged separately  based on  the evidence

admissible against that defendant.  The jury apparently found

itself  capable   of  distinguishing:     it  acquitted   one

defendant--Thomas Agnitti, who is not a party to this appeal-

-on the  conspiracy count and  on other counts  convicted two

defendants  (Agnitti  and Bargalla)  only on  lesser included

offenses.

     Innamorati aside,  none of the defendants  points to any

specific   evidence   that   significantly  inculpated   that

                             -20-

defendant but was admissible only  against another defendant.

Indeed,   the  core  of  the  case  was  the  alleged  common

conspiracy; thus, after the necessary foundation, most of the

evidence  of  wrongdoing by  one  conspirator was  admissible

against other conspirators  as well.  Nor  is this a  case in

which  separable  acts  of  an individual  defendant  are  so

disproportionately heinous  that there  is an  arguable taint

merely  from the association  among defendants.   In sum, for

everyone apart  from  Innamorati, this  is  a  garden-variety

joinder almost routine in  drug conspiracy cases.  Innamorati

does point to evidence that he  argues was harmful to him but

properly admissible only as to another defendant, namely, the

grand  jury testimony of Thompson.   In our  view, this grand

jury testimony  was not  admissible against  Innamorati; but,

for  reasons discussed in part IV, we also conclude also that

Innamorati is not entitled  to a reversal on account  of this

testimony. 

              III.  SUFFICIENCY OF THE EVIDENCE

     Thompson,   Grady,   Letters,  DeMarco   Jr.,  Bargalla,

Litterio and  Gilberti argue that the  evidence introduced at

trial  was   insufficient  to  support   their  convictions.2

                    

     2Innamorati  also raises  this issue  in his  brief, but
only by asserting  in conclusory terms that  the evidence was
insufficient to establish his  guilt.  Ordinarily, this claim
would be waived but in this instance we  necessarily consider
the weight  of the evidence against him in part IV as part of
our harmless error analysis.

                             -21-

Defendants  bear the  heavy burden  of demonstrating  that no

reasonable  jury  could  have  found  them  guilty  beyond  a

reasonable doubt.  See Rivera-Santiago, 872  F.2d at 1078-79.
                                      

An appellate court must  view the evidence in the  light most

favorable   to  the   prosecution,  "drawing   all  plausible

inferences  in  its  favor   and  resolving  all  credibility

determinations  in line  with  the jury's  verdict."   United
                                                             

States  v. David, 940 F.2d 722, 730 (1st Cir.), cert. denied,
                                                            

112 S. Ct. 605 (1991).  We conclude that, with one exception,

the  prosecution offered  evidence  adequate to  support  the

convictions.

                     A.  William Thompson

     Thompson was  convicted of conspiracy to  distribute and

to possess  with intent to distribute  cocaine and marijuana,

in violation of 21  U.S.C.    846 and 841(a)(1).   Conviction

for conspiracy requires proof that the defendant entered into

an  agreement  with  another  to  commit  a crime,  here,  an

agreement   with  Innamorati   to   distribute  cocaine   and

marijuana.   United States v. Concemi, 957 F.2d 942, 950 (1st
                                     

Cir. 1992).  This agreement need not be expressed; it "may be

implicit in  a working relationship between  the parties that

has  never been  articulated  but nevertheless  amounts to  a

joint criminal enterprise."  United States v. Moran, 984 F.2d
                                                   

1299, 1300 (1st Cir. 1993).

                             -22-

     There was evidence--in  fact, Thompson  admitted in  his

testimony  before  the  grand  jury--that  Thompson  provided

"registry checks" of license plates at Innamorati's request. 

When Innamorati became suspicious of vehicles that he thought

were following  him or  that were  being used  by prospective

drug purchasers, he asked  Thompson, a former police officer,

to  run the plates through the state's computer registry.  If

the  registry check came back "not on file" or "no response,"

Innamorati had reason to believe that the vehicle belonged to

a  law  enforcement  agency  and  was   being  driven  by  an

undercover agent.   Thompson  also admitted that  he acquired

two cellular telephones for  Innamorati's use which  Thompson

leased in his own company's name.

     Relying primarily on Direct  Sales Co. v. United States,
                                                            

319  U.S. 703,  709  (1943), Thompson  argues that  there was

insufficient evidence that  Thompson knew of the use to which

Innamorati  put these  goods and  services, or  that Thompson

intended  that they  be used  in that  manner.   But Thompson

admitted in testimony before the grand jury that he regularly

purchased cocaine from  Innamorati when he was employed  as a

police officer from 1970 to  1978.  Tulowiecki testified that

he regularly distributed cocaine to  Thompson from Innamorati

in  1987.     Thompson  was  assigned  a   beeper  number  in

Innamorati's communications network.   Thompson also admitted

                             -23-

that he knew that the cellular telephones he provided were to

be used to "elude law enforcement."  

     Thompson argues vehemently that he could not have been a

full-fledged conspirator because he was excluded from certain

locations at  which Innamorati stored his  drugs, and because

Callahan  and Fitzgerald  could  not identify  him at  trial.

These  facts  do  not  defeat Thompson's  membership  in  the

conspiracy.   It  is black-letter  law that  one need  not be

familiar with every  other person  with whom he  is found  to

have conspired, nor must he participate  in the conspiracy to

the same  extent as all others.   See United States  v. Rios,
                                                            

842 F.2d 868,  873 (6th  Cir. 1988), cert.  denied, 488  U.S.
                                                  

1031  (1989); United States v.  Giry, 818 F.2d  120, 127 (1st
                                    

Cir.), cert. denied, 484 U.S. 855  (1987).  Taken as a whole,
                   

the evidence allowed  the jury  to find that  Thompson was  a

knowing member of the drug conspiracy.  
                       B.  James Grady

     The   evidence  showed   that  Grady   brought  numerous

shipments of  cocaine and marijuana from  Florida to Callahan

and   Innamorati  in   Massachusetts.     Several  witnesses,

including  Callahan,  Fitzgerald  and  Reilly,  described  in

consistent  detail  Grady's   practice  of  transporting  the

cocaine and the cash in a tool box in the cab of his tractor-

trailer.   There was also ample evidence that Grady knew that

the shipments contained narcotics.  Fitzgerald testified that

he  told Grady that the  tool box contained  cocaine.  Reilly

                             -24-

recounted one occasion on which Grady  watched while bales of

marijuana were loaded  onto his truck.  Evidence  showed that

Grady  occasionally  brought  large  amounts  of  cash   from

Massachusetts to Florida to pay Reilly.

     In the face  of this testimony, Grady  contends that the

evidence  was insufficient  to convict  him of  conspiracy to

distribute.    He argues  that  Callahan  and Innamorati  had

suppliers  other than Reilly and that even as to Reilly there

were other couriers in addition to Grady.  He also points out

that although  the conspiracy allegedly  continued from  1984

until November  1988, the  evidence of his  participation was

limited to  the period between  June 1985 and  February 1988.

But Grady need not  have been the exclusive courier  in order

to be  a conspirator, nor must  he have been involved  in the

conspiracy during  the entire life  of the  operation.   See,
                                                            

e.g.,  United States  v. Baines,  812 F.2d  41, 42  (1st Cir.
                               

1987).  We have  no trouble finding the evidence  adequate to

support Grady's conspiracy conviction.

     In addition to conspiracy Grady was also convicted under

counts  three and  four of  the  indictment of  possession of

cocaine  on  February  25  and   27,  1988,  with  intent  to

distribute.    These  were  the  dates  on  which  DEA agents

executed the  search warrants on the  Hyperspace facility and

the   Edgewater   Hills   apartment,   respectively.      The

government's theory  at trial  was that  Grady was guilty  of

                             -25-

possessing the  cocaine found  at these locations  because he

had carried that cocaine from Florida in his tractor-trailer.

Although  Grady  was  linked  to the  cocaine  found  in  the

Hyperspace  facility,  we agree  with  Grady  that there  was

insufficient  evidence  that  he ever  possessed  the cocaine

found in the Edgewater Hills apartment.

     Callahan  testified   that  he  gave  Grady   a  toolbox

containing three kilograms of  cocaine in Florida on February

20,  1988, and that on  February 24 he  retrieved the toolbox

from  Grady  in Massachusetts  and  drove  to the  Hyperspace

storage  facility.  The next day, the government executed the

search  warrant  at the  facility  and  seized exactly  three

kilograms of cocaine.  It is difficult to see, therefore, how

the  cocaine  seized a  few  days  later from  the  Edgewater

apartment  could  also have  come  from  Grady's February  20

shipment.  The government argues that Callahan also testified

that  he  brought  the  toolbox  with  him to  the  Edgewater

apartment after  leaving Hyperspace.    Thus, the  government

says,  "[w]hile the evidence on  [this] score may  be open to

dispute," that dispute was for the jury to resolve.

     It  is true  that Callahan's  testimony is  unclear--one

cannot  tell  whether  he   stored  the  three  kilograms  at

Hyperspace, or took them with him when he left there and went

to  the Edgewater apartment.  But the testimony of Scott, who

accompanied  Callahan,  is  clear   on  this  point.    Scott

                             -26-

testified that Callahan took the cocaine  out of the toolbox,

placed it in the trunk  of the car in the  Hyperspace storage

compartment, and then left the facility with the toolbox, now

emptied of its drugs.  The testimony is also clear  that only

three kilograms were  transported by Grady on  this trip, and

that exactly three kilograms were seized by federal  agents a

few days later from the Hyperspace facility.  

     It is of course quite  possible, indeed likely, that  at

least some  of the cocaine  found in the  Edgewater apartment

was  a remnant  of a prior  shipment by  Grady.   But this is

conjecture.  The government does not advance the theory here,

nor did it  do so before the jury, and  there was evidence of

other  suppliers  and  couriers.    Accordingly,  finding  no

evidence  to support  Grady's conviction  for possessing  the

cocaine  seized on February 27, we  reverse his conviction on

count  four.   This  may have  no  effect on  Grady's  actual

sentence, since the counts were grouped and  the sentence was

based  on the  volume  of  drugs  foreseen;  but  out  of  an

abundance of caution we remand his case to the district court

for resentencing.

                     C.  William Letters

     Letters  was convicted  of conspiracy  and one  count of

possession with intent  to distribute.  He  argues that there

was insufficient  evidence to prove  he that entered  into an

agreement  to distribute  narcotics.   He  concedes that  the

                             -27-

evidence showed a number of deliveries of cocaine to him from

Innamorati (via  Tulowiecki),  in amounts  ranging from  nine

grams to, on  one occasion, as much as an  ounce (28 grams). 

But Letters says that the evidence also showed that he  was a

very heavy personal user of cocaine.  He argues that there is

no basis for  an inference  that he was  involved in  further

distribution of the  drugs he acquired.   Thus, according  to

Letters, "[t]he  government's  proof only  demonstrated  that

Letters  was a  regular customer  of Innamorati  for personal

use."     We  need not  decide  when and  whether "a  regular

customer" buying  for  personal use  could  be treated  as  a

conspirator in a drug distribution  ring, see Moran, 984 F.2d
                                                   

at 1302-04,  because the evidence permitted the  jury to find

that Letters also distributed portions of the large amount of

cocaine  he  purchased   from  Innamorati.    During   direct

examination of Tulowiecki, the following exchange took place:

     Q.    And  how  did  you  package the  cocaine  for
     Letters?

     A.   Well, with  Bill Letters,  we would  take nine
     grams of cocaine and  put in five grams  of cut.[3]
     And I  grind that all  together, and it  would come
     out  to fourteen.  And  I would put  these all into
     individual  packages.   And  one,  another specific
     package  for Bill  Letters  himself  that was  pure
     cocaine.

                        .   .   .   . 

                    

     3 Various  witnesses explained  during trial  that "cut"
refers to  additives  that were  mixed  into the  cocaine  to
increase its volume and, potentially, its resale value.

                             -28-

     Q.  Why  did [Innamorati] want  you to package  the
     cocaine this way [for Letters]?

     A.   Because Billy  Letters didn't have  a scale. .
     . .

     From  Tulowiecki's reference to individual packaging and

to a separate package of  cocaine "for Bill Letters himself,"

there  is certainly  a permissible  inference that  the other

individual  packages were  destined to  be resold  to others.

This  inference is reinforced by the use  of "cut" and by the

large  volume  of cocaine  that  Letters  acquired, shown  by

Tulowiecki's  records to be a total of 336.5 grams of cocaine

between June  1987 and February 1988.   Accordingly, Letters'

convictions  for  conspiring  to distribute  cocaine  and for

possessing cocaine  with intent to distribute  were supported

by adequate evidence.

                    D.  Robert DeMarco Jr.

     DeMarco  Jr. was convicted  of conspiracy and possession

of  cocaine with intent  to distribute.   His  challenge goes

less  to the  quantity of  the evidence  in support  of these

convictions as to its  quality.  He argues that  the evidence

was deficient because the government did not catch him in the

act,  such as  by  recording his  telephone conversations  or

conducting  a controlled  buy  from him,  but instead  relies

entirely on "weak circumstantial evidence."  The evidence may

not be overwhelming but it is sufficient.

                             -29-

     Both Callahan and Scott described repeated deliveries of

cocaine  to DeMarco Jr.  In addition, Callahan testified that

DeMarco Sr. told him that between May 1987 and February 1988,

DeMarco  Jr.  was selling  ounces,  half-ounces and  quarter-

ounces of  cocaine to his (DeMarco  Jr.'s) various customers,

and  complained that DeMarco Jr. was  putting all the profits

"up  his  nose."   In  addition, Scott  testified  that after

Callahan  was  arrested,  DeMarco  Jr.   complained  that  he

(DeMarco Jr.)  was supposed to receive the briefcase in which

Callahan  had stored a quantity of cocaine to conceal it from

the DEA.  The evidence was  adequate to find that DeMarco Jr.

entered into an agreement to distribute cocaine and possessed

cocaine with intent to distribute it.

                      E. Philip Bargalla

     Bargalla was convicted of conspiracy  to distribute, but

acquitted of  the substantive count of  possession of cocaine

with  intent  to distribute  (the  "PWI"  count) and  instead

convicted  of   the  lesser   included   offense  of   simple

possession.    Bargalla  argues  that  there  was  inadequate

evidence  that he entered into a conspiracy to distribute and

that,  especially  in  light  of his  acquittal  of  the  PWI

offense, the conspiracy  conviction must  have resulted  from

prejudicial  "spillover."  Bargalla  argues that a conspiracy

cannot  fairly be inferred from the  facts that Bargalla took

possession of Callahan's  briefcase after Callahan's  arrest,

                             -30-

and was  in possession of  Callahan's car at the  time it was

seized by the DEA.

     The short answer is that additional evidence showed that

Bargalla  was a  regular purchaser  of cocaine  and marijuana

from  Callahan and  a  distributer in  his  own right.    For

example,  Jeffrey Scott  testified  that he  made about  five

deliveries of  marijuana to  Bargalla from Callahan  in 1987,

and Callahan confirmed that he sold cocaine  and marijuana to

Bargalla on a regular  basis beginning in late 1985  or early

1986.  Moreover, there was evidence that Bargalla resold some

of  the narcotics he acquired from Callahan.  Scott testified

that he saw  distribution paraphernalia -- a  small scale and

chemicals  such as Inositol that are used to mix with cocaine

to  increase its volume -- in Bargalla's bedroom.  Scott also

testified  that  Bargalla  complained  that people  were  not

paying  him  on time  for  the  cocaine  and  marijuana  that

Bargalla provided them.  

     This  evidence  was  more  than  sufficient  to  support

Bargalla's  conviction for  conspiring to  distribute cocaine

and marijuana.   The  testimony concerning the  briefcase and

Callahan's car merely served  to corroborate Bargalla's close

relationship with Callahan and  his organization.  The jury's

favorable treatment of him on the PWI count may or may not be

a  windfall but it cannot  be used to  impeach the conspiracy

conviction.   See United States  v. Senibaldi, 959 F.2d 1131,
                                             

                             -31-

1135 (1st Cir. 1992) ("inconsistency in a criminal verdict is

not grounds for overturning it").

                      F.  James Litterio

     Litterio  does  not  question  the  sufficiency  of  the

evidence to support his  conviction for conspiracy.  Instead,

he challenges the evidence with respect to count  five, under

which  he and  Innamorati were  convicted of  possession with

intent to distribute cocaine on  or about September 2,  1987.

We find the evidence sufficient.

     The  primary evidence  supporting the  possession charge

was the  testimony of Tulowiecki, who  described a four-ounce

purchase  of cocaine  by  Litterio  from  Innamorati  shortly

before  September 2,  1987.   Tulowiecki testified  in detail

that  he  and Innamorati  packaged  four  ounces of  cocaine,

delivered  the package  to Litterio,  and received  the $5300

payment several  days later.  Tulowiecki  also testified that

in  the course  of arranging  this transaction  Litterio said

that he wanted  the four  ounces of cocaine  for his  brother

Mark.    In addition,  in  January  1989 Tulowiecki  secretly

recorded  a  conversation  with Litterio  in  which  Litterio

referred to the four-ounce transaction.  

     Litterio  argues at  length that  Tulowiecki's testimony

was   inherently   unreliable   and   uncorroborated.     The

credibility of  Tulowiecki's testimony  was a matter  for the

jury to resolve.  As it happens, there was evidence that Mark

                             -32-

Litterio visited James Litterio immediately  after the latter

acquired the  drugs, and further evidence  that Mark Litterio

was  involved  in  the sale  of  four  ounces  of cocaine  to

undercover  officers just  after James  Litterio's four-ounce

purchase  from Innamorati.   The  jury could  easily conclude

that James  Litterio provided the four-ounce  package to Mark

after acquiring it from Innamorati. 

                     G.  Joseph Gilberti

     Gilberti argues  that  evidence of  "isolated sales"  of

cocaine from Callahan or Scott to  Gilberti is not sufficient

to  convict  Gilberti of  participation  in  a conspiracy  to

distribute.   The  evidence, however,  showed more  than mere

"isolated sales;" it showed that Gilberti was another cog  in

the Callahan/Innamorati machine. 

     Scott testified that  he delivered  cocaine to  Gilberti

for  Callahan   in  1986,  generally  in   one  to  two-ounce

quantities.  He testified that he made approximately 25 to 50

deliveries  of  this  nature  to Gilberti  over  a  six-month

period,   including  one   four-ounce  delivery.     Callahan

confirmed that Gilberti was one of the individuals to whom he

delivered cocaine.  Gilberti developed  a code with Scott and

Callahan so  that he  could  order drugs  over the  telephone

without detection; he would refer to "green buckets of paint"

when ordering  marijuana, and  "white buckets of  paint" when

requesting cocaine. 

                             -33-

     There  was also  evidence that  the distribution  of the

cocaine  did  not  end  when  it  reached  Gilberti.    Scott

testified   that   he   gave   Gilberti   drug   distribution

paraphernalia--  including  a scale,  ziploc  bags and  other

packaging, and sudocaine, a product used to mix with cocaine-

-and showed  Gilberti  how  to  use these  items.    Callahan

testified that Gilberti  told him that he, Gilberti, had been

distributing  cocaine to  an individual  named Ricky  Green. 

The  evidence was adequate  to support  Gilberti's conviction

for  conspiracy  and possession  of  cocaine  with intent  to

distribute.   The same  evidence supported the  forfeiture of

Gilberti's property  under 21  U.S.C.    853, since  his only

challenge to that forfeiture  is that the evidence underlying

the conspiracy conviction was deficient.

        IV.  GRAND JURY TESTIMONY OF WILLIAM THOMPSON

     On June  22, 1988,  Thompson testified at  length before

the grand jury about the drug distribution conspiracy in this

case.  Thompson's testimony  consisted almost entirely of the

government's recitation of a prior statement made by Thompson

to  a DEA  agent, interspersed  at intervals  with Thompson's

confirmation of  the truth of the  prior statement, sometimes

with  qualifications.   Some  of this  testimony incriminated

Thompson  himself,   but  a  great  deal   of  the  testimony

incriminated  certain  of  his   co-defendants,  particularly

                             -34-

Innamorati.  Thompson was  subsequently indicted by the grand

jury along with the other defendants in this case.

     At trial, Thompson  elected not to testify.   The court,

over defendants' objections, permitted the government to read

into evidence the entire  transcript of Thompson's grand jury

testimony.   Innamorati, Grady, Boisoneau  and, surprisingly,

Thompson himself  claim that this testimony  was inadmissible

hearsay and that its introduction was reversible  error.  The

defendants also argue that  the introduction of this evidence

violated  their   Sixth  Amendment  right   to  confront  the

witnesses against them, but this amounts to the same argument

dressed in different garb.4

                     A.  Admissibility  

     The  basis   for  the  district  court's   admission  of

Thompson's grand  jury testimony  is not entirely  clear from

the record.  At one point, the court stated:

     I'm going to allow . . . [the grand jury testimony]
     in evidence and instruct the jury the conversations
     pertaining to Thompson  are admitted at  this point
     only against  Thompson.  Unless and  until there is
     other   evidence  that  connects  the  other  named

                    

     4The  admission  of  an  out-of-court  statement falling
within  a "firmly rooted" exception  to the hearsay rule does
not  violate  the Confrontation  Clause.    See Bourjaily  v.
                                                             
United States, 483 U.S. 171, 182-83 (1987);  Ohio v. Roberts,
                                                            
448 U.S.  56, 66 (1980).  Most courts have concluded that the
declaration against interest  exception embodied  in Fed.  R.
Evid. 804(b)(3) is a "firmly rooted" exception to the hearsay
rule.  See, e.g., United States v. York, 933 F.2d 1343, 1363-
                                       
64 &amp; n.5  (7th Cir.), cert.  denied, 112 S.  Ct. 321  (1991).
                                   
Thus, the  constitutional issue merges  into the  evidentiary
question.

                             -35-

     defendants  in  this   conspiracy,  it's   excluded
     against them.

Shortly  thereafter, in  response to  a renewed  objection by

defense  counsel,  the  court  ruled  that  "the  grand  jury

testimony  of  William Thompson  is  allowed.   It's  allowed

against Thompson.   It's a declaration  against interest, and

I'll explain that to the  jury."  Id. at 62.   No explanation
                                    

or limiting instruction was given to the jury.

     The  only argument  urged by the  United States  in this

appeal to  overcome the hearsay  objection is that  the grand

jury  testimony was a declaration against  interest.  Fed. R.

Evid.  804(b)(3)  excepts from  the  hearsay  rule, when  the

declarant is unavailable as a witness,

          [a] statement  which . . .  so far tended
          to  subject  the  declarant  to  civil or
          criminal   liability   .  .   .   that  a
          reasonable  person   in  the  declarant's
          position   would   not   have  made   the
          statement unless believing it to be true.

Thompson's  invocation  of  the   Fifth  Amendment  at  trial

rendered him "unavailable"  for purposes  of Rule  804(b)(3).

See  California v.  Green,  399 U.S.  149,  168 n.17  (1970).
                         

Under  the  exception,  a  declaration  against  interest  is

admissible against  anyone to  whom  the statement  pertains.

See  United  States v.  Myers, 892  F.2d  642, 644  (7th Cir.
                             

1990).

     Whether Thompson's  grand  jury testimony  represents  a

statement  against  penal  interest  poses the  question  how

                             -36-

broadly  to define the concept  of a "statement."   One could

describe  the  entire  grand   jury  testimony  as  a  single

statement or, at the other  extreme, could subdivide a single

sentence ("John and  I robbed the  bank") into two  different

statements to  be tested separately.   Both the  rationale of

the  exception--the   trustworthiness  of  the  unit   to  be

admitted--and our own precedents  yield no mechanical rule as

to where, in between these extremes, the line is to be drawn.

      A  further concern  is that,  even if  a broad  view is

taken  as to the scope of the "statement," a co-defendant who

confesses to  the authorities  and inculpates another  may be

seeking  to curry favor and cast the main blame upon another.

Thus  the "statement"  as a  whole may  be  very much  in the

interests of  the confessing party  who is minimizing  his or

her  role.   Some  have urged  a  blanket exclusion  of  such

confessions as inherently untrustworthy; early drafts of Rule

804(b)(3) excluded "a statement or confession offered against

the  accused in  a criminal  case, made  by a  codefendant or

other person implicating both himself and  the accused."  See
                                                             

generally  4  Weinstein  &amp; Berger,  Weinstein's  Evidence,   
                                                         

804(b)(3) [03] at 804-152 &amp; n.42 (1992).

     We need not  pursue these issues  in depth.   Thompson's

lengthy grand  jury testimony contains only  a few statements

that  are  directly  against Thompson's  penal  interest--for

example,  his descriptions  of procuring the  cellular phones

                             -37-

and checking  license plate numbers--and even  these could be

innocent acts,  were context  ignored.  If  these inculpatory

statements of Thompson were isolated  from the rest, it would

be hard to say that the balance of the grand  jury testimony,

especially the numerous accusations against  Innamorati, were

against   Callahan's  interest.     Thus   if  the   directly

inculpatory statements are severed,  little of the grand jury

testimony would be against Thompson's interest and admissible

against third parties.

     If the inculpatory statements  are not severed, the same

result  prevails.   Taken as  a  whole the  testimony greatly

minimizes Thompson's own role in any wrongdoing.  He admitted

a  few acts  of  logistical assistance,  doubtless hoping  to

maintain  (as  he  does   here)  that  they  were  innocently

motivated.   But the thrust  of the testimony  is that others

were  guilty of  wrongdoing from  which Thompson  himself had

been excluded but happened to have some  knowledge.  Although

later  the extent of this  knowledge could be  turned into an

inference harmful to his  interests, it is difficult  to view

the  testimony   as  a  whole  as   consciously  contrary  to

Thompson's self-interest at the time it was made.  "[F]or the

declaration to  be trustworthy the declarant  must have known

it  was  against  his  interest  at  the  time  he  made  the

statement".   Filesi v. United States, 352 F.2d 339, 343 (4th
                                     

Cir. 1965).

                             -38-

     In  sum, the bulk of the  testimony did not qualify as a

declaration against penal interest.  As to Thompson, anything

he said constituted  an admission  so there was  no error  in

receiving the grand jury testimony as to him.  Fed.  R. Evid.

801(d)(2)(A).   But as to  the other defendants,  most of the

testimony  was both  hearsay  and outside  the scope  of Rule

804(b)(3)'s  exception.    We  need not  consider  whether  a

limiting instruction would  have been a sufficient  safeguard

to allow the testimony  against Thompson but not the  others,

compare Bruton v. United  States, 319 U.S. 123  (1968), since
                                

no such instruction was given.

                         B. Prejudice

     Since  error was  committed in  allowing the  grand jury

testimony except as to  Thompson, the only remaining question

is  whether it was prejudicial as to the other defendants who

complain of its admission: Innamorati, Grady,  and Boisoneau.

On direct appeal, in  the case of a constitutional  error (as

this one may be viewed in light of the Confrontation Clause),

the  test for  harmless  error  is  a  demanding  one.    The

appellate court  must be persuaded beyond  a reasonable doubt

that  the   jury's  verdict  was  not   attributable  to  the

challenged evidence.  See  Harrington v. California, 395 U.S.
                                                   

250, 254 (1967);  Milton v. Wainwright, 407  U.S. 371, 377-78
                                      

(1972);  United States v. Figueroa, 976  F.2d 1446, 1455 (1st
                                  

Cir. 1992), cert. denied, 113 S. Ct. 1346 (1993).  
                        

                             -39-

     This  test is,  and  ought to  be, stringently  applied,

resolving all reasonable doubts against the government, since

it comes close  to a trespass upon the jury's  function.  But

the  case law  is  clear  that,  if the  legitimate  evidence

unquestionably assured  the jury's verdict of conviction, the

error in admitting other evidence is not normally grounds for

reversal.  Harrington, 395 U.S. at 256; Figueroa, 976 F.2d at
                                                

1455.5    Nor  is  this  harmless  error   test  confined  to

inadmissible evidence  so slight or duplicative  that one can

assume that the  jury scarcely  noticed it.   The  wrongfully

admitted evidence  must be  "quantitatively  assessed in  the

context of  other evidence presented  . . . ."   Sullivan, 61
                                                         

U.S.L.W. at  4519 (quoting Arizona v. Fulminante,  111 S. Ct.
                                                

1246,  1264  (1991)).   Even  where  the wrongfully  admitted

evidence is singular and weighty, it can still  be "harmless"

where the  legitimate evidence is overwhelming.   E.g., Clark
                                                             

v. Moran, 942 F.2d 24, 27 (1st Cir. 1991).
        

     Against this background,  we conclude that  the wrongful

admission  of  the grand  jury  testimony did  not  alter the

inevitable  outcome of the case against Innamorati.  We reach

this conclusion only after a  careful scrutiny of the record,

                    

     5Errors  that  the   Supreme  Court  deems  to   warrant
automatic  reversal  are  rare.     See,  e.g.,  Sullivan  v.
                                                         
Louisiana,   61  U.S.L.W.  4518   (June  1,  1993)  (improper
         
reasonable  doubt instruction);  Chapman  v. California,  386
                                                       
U.S.  18,  23  n.8 (1966)  (denial  of  right  to counsel  or
partiality of trial judge).

                             -40-

for  the  grand jury  testimony  inculpates  Innamorati in  a

number  of respects  that are  neither trivial  nor literally

duplicative of  other evidence.  Among  other things Thompson

testified that:

     Mr.   Innamorati  sold  marijuana   while  in  high
     school . . . .  Around 1970 . .  . [he] developed a
     large distribution network which comprised of [sic]
     many   residents   of   Clinton    and   Lancaster,
     Massachusetts.

     [I]n  1985  Mr.  Innamorati  was  arrested  by  the
     Massachusetts  State Police [while in possession of
     cocaine and  he later boasted that he] had paid his
     attorney . . . several  thousand dollars to fix the
     charges against Mr. Innamorati.

     [I]n the fall  of 1987, [I] became aware  that both
     Innamorati   and  Tulowiecki   purchased  automatic
     pistols  and possessed  these  pistols when  making
     drug  transactions.  On  several occasions, [I] saw
     Innamorati  and  Tulowiecki before  and  after drug
     deals and they were always carrying the pistols.

     Tulowiecki  also told  [me]  that  Innamorati  sent
     Paula [sic] Bufton  [Innamorati's companion] to the
     corrections  facility  to  visit   Tulowiecki,  and
     during  the  meeting, Bufton  told  Tulowiecki that
     Innamorati put  aside one hundred  thousand dollars
     for any legal aid that Tulowiecki would incur . . .
     .   [Bufton told]    Tulowiecki to  be patient  and
     don't fold.  That Tulowiecki would be taken care of
     if he did the right thing.

     Nevertheless,   the   case   against    Innamorati   was

overwhelming and it is no accident that his "insufficiency of

the  evidence"  argument  on   this  appeal  is  confined  to

conclusory assertions.  No  less than seven persons testified

from  personal  knowledge  that  Innamorati  was  engaged  in

cocaine  and marijuana  dealing, including  among others  his

partners  (Callahan and  Fitzgerald),  his companion  (Pamela

                             -41-

Bufton), and his  lieutenant and record-keeper  (Tulowiecki).

Drugs and  money were  confided by Innamorati  to his  friend

James Casasanto for safe-keeping when the authorities  closed

in  on  the  ring;  and drugs,  weapons,  paraphernalia,  and

records were found in the Edgewater apartment that Tulowiecki

maintained at Innamorati's behest.  

     In fact,  the case against Innamorati--who  stood at the

center  of   the  ring's  spider  web--was   a  composite  of

individual  cases against other  ring members,  reinforced by

additional  evidence against  Innamorati.   All of  the other

ring members  on this  appeal played smaller  parts but  were

convicted  on the  conspiracy charge  by the  jury.   Most of

these  persons were  not  directly  implicated by  Thompson's

grand jury testimony or the testimony was at most duplicative

as to them.   It defies belief that the  jury, faced with the

aggregate   of  evidence   against  Innamorati,   would  have

acquitted him of conspiracy if  the grand jury testimony  had

been deleted from the record.

     The  remaining convictions  against Innamorati  stand on

the  same  footing.    To  establish  a  continuing  criminal

enterprise under  21 U.S.C.    848, the government  needed to

show only  that Innamorati  committed a continuing  series of

violations of the federal narcotics  laws and that he managed

or  organized five or more individuals.  See United States v.
                                                          

David,  940  F.2d at  732.    Without considering  Thompson's
     

                             -42-

testimony, the evidence showed continuing violations and that

more  than five persons acted at Innamorati's direction.  The

individual  possession  counts  against Innamorati  were  not

significantly bolstered  by the  Thompson  testimony and  the

weapons count--which Thompson corroborates--was  supported by

ample  and  untainted  evidence  from other  witnesses.    We

conclude that the grand jury testimony was, as to Innamorati,

harmless beyond a reasonable doubt.

     Turning  to Boisoneau,  Thompson's grand  jury testimony

contains  only two references to him.  Near the conclusion of

his  testimony,  Thompson  identified  Boisoneau  as  one  of

several  "customers of  Innamorati," and  stated that  he was

present at  times when  Innamorati supplied cocaine  to these

customers.    A short  time  later,  Thompson testified  that

Boisoneau and  the other  "customers" that he  had identified

"were  just weekend users," as  opposed to distributors.  Id.
                                                            

at  114.    These  two  statements  were  harmless  beyond  a

reasonable   doubt  in  light  of  the  abundant  independent

evidence of  Boisoneau's cocaine use and  of his relationship

with Innamorati.

     Tulowiecki   testified  that   Boisoneau   was  one   of

Innamorati's  customers;  that   Tulowiecki  had   personally

delivered  cocaine to Boisoneau;  that Boisoneau was assigned

beeper number 004 in Innamorati's communications network; and

that  Boisoneau visited  Tulowiecki in  prison and  relayed a

                             -43-

message from Innamorati regarding the  importance of "keeping

[Tulowiecki's] mouth  shut."   Records kept by  Tulowiecki of

Innamorati's  drug sales  showed  that Boisoneau  purchased a

total  of  19 grams  of  cocaine between  September  1987 and

January 1988.   Other  witnesses, such  as Pamela  Bufton and

James  Casasanto,  also   provided  incriminating   evidence.

Bufton, for example,  testified that Boisoneau had aided in a

delivery of cocaine to Innamorati.

     It is  fair to  say that,  as  to Boisoneau,  Thompson's

testimony ("just  [a] weekend user[]")  was almost favorable.

That Boisoneau was a customer no one could fairly doubt.  The

additional  detail that  made a  conspiracy  charge plausible

came  almost  entirely from  others  whom the  jury  chose to

believe.  

     Finally,  as to Grady, we have  scoured the thirty pages

of Thompson's grand jury  testimony and are unable to  find a

single  reference  to Grady.   Grady  in  his brief  does not

suggest  any way in which  he was directly  prejudiced by the

admission of this evidence.   We have no  trouble, therefore,

concluding that the admission of the grand jury testimony was

harmless as to Grady.    

                         V.  VARIANCE

     Boisoneau argues  that  a "variance"  between the  facts

alleged  in the  indictment  and the  facts adduced  at trial

prejudiced  his ability  to defend  the charges  against him.

                             -44-

Although he uses the language of variance, Boisoneau's entire

argument  is devoted  to the  contention that  the government

introduced  evidence at  trial  in addition  to the  evidence
                                               

listed as overt acts  in the indictment and presented  to the

grand jury.

     The indictment sets forth 44 paragraphs of overt acts in

support  of the  alleged  conspiracy.   Paragraph 36  alleges

that,  between  May  1,  1987,  and  early  1988,  Tulowiecki

distributed  multi-ounce quantities of  cocaine per  month to

several buyers,  including Boisoneau.   Paragraph 37  alleges

that Tulowiecki's  records show  that  Boisoneau purchased  a

total of 12 grams of cocaine between September 27 and October

23,  1987.   Boisoneau does not  contend that  the government

failed  to prove  these allegations  at trial.   Instead,  he

argues that he was charged only with these acts, and that the
                               

government   "varied"   from  the   indictment   by  offering

additional evidence, such as testimony that Boisoneau  placed

cocaine in the trunk of a car that was to be  driven to Maine

where Innamorati  was staying,  and testimony that  Boisoneau

introduced  Tulowiecki  to  two  individuals  who  wanted  to

purchase cocaine.

     Boisoneau misapprehends the  law.   The government  need

not  recite all of its evidence  in the indictment, nor is it

limited  at trial to the overt acts listed in the indictment.

E.g.,  United States v. Ellender, 947 F.2d 748, 755 (5th Cir.
                                

                             -45-

1991).    The indictment  charged  all  defendants, including

Boisoneau,  with  engaging  in  a  conspiracy  to  distribute

cocaine and  marijuana between 1984  and 1988.   The evidence

complained of by Boisoneau falls squarely within the scope of

that  alleged conspiracy, both  temporally and substantively.

There is no variance.6 

            VI.  RESTRICTIONS ON CROSS-EXAMINATION

                      A.  Paul Callahan

     Callahan was  originally joined  in the indictment  as a

co-conspirator, but pleaded guilty  prior to trial and  was a

principal government witness at  trial.  Defendants sought to

impeach Callahan's credibility during  cross-examination with

evidence that he had engaged in a wide of variety of criminal

acts throughout his life.  The jury learned from the evidence

that Callahan  had  worked  as  a safecracker,  that  he  was

convicted for a  dozen specific acts of safecracking, that he

was a bookmaker, a bank robber, a burglar, a drug dealer, and

a  perjurer, and that he  spent much of  his adult life--more

than  sixteen  years--in  prison.   But  the  court  excluded

evidence relating to Callahan's participation in disposing of

                    

     6In discussing  the  supposed variance,  Boisoneau  also
alleges that  the government  failed  to produce  exculpatory
evidence  and  questions the  district  court's  denial of  a
motion  for a  bill of  particulars.   No effort  is made  to
develop these issues,  however, and we  do not address  them.
Zannino, 895  F.2d at  17.   For the same  reason, we  do not
       
discuss Innamorati's  brief and conclusory  claim of improper
variance.

                             -46-

the  bodies of  two homicide  victims in  the 1960's,  and to

another  incident  in  1970  in  which  Callahan  provided  a

silencer to another individual who later used the silencer in

a shooting.   Innamorati,  Thompson, Grady, DeMarco  Sr., and

DeMarco Jr.  argue that this ruling  improperly limited their

right of cross-examination and their Sixth Amendment right to

confront witnesses against them.

     The trial judge apparently concluded that the references

to the homicides and silencer,  events 20 to 30 years in  the

past, were  of limited importance in  impeaching Callahan and

created  a risk of prejudice that outweighed any benefit from

the evidence.   The use  of such ancient  evidence merely  to

show bad character for veracity is doubtful, cf. Fed R. Evid.
                                               

609(b)(10-year-old felonies presumptively  excluded), and  in

this  case  the  excluded   evidence  was  weak  and  largely

cumulative  so  far as  it  cast  an  unflattering  light  on

Callahan's character  for veracity.   Judgments of  this kind

are  very much  within  the trial  court's  discretion.   See
                                                             

United States v.  Garcia-Rosa, 876  F.2d 209,  237 (1st  Cir.
                             

1989), cert. denied, 493 U.S. 1030, vacated on other grounds,
                                                            

498  U.S. 954  (1990).   We  see  no abuse  in  excluding the

evidence for this use.

     There is a somewhat more substantial use that might have

been  made of the evidence, namely,  to suggest that Callahan

could still  be  prosecuted  for  involvement  in  homicides,

                             -47-

giving  the government some hold over  him.  But there was no

indication when the questions were sought to be asked in this

case  that  the  applicable  statute  of  limitations   still

permitted  prosecution  or,  even  if it  did,  that  federal

authorities controlled the decision as to future prosecution.

 It is not even clear that the prior bad acts were offered to

show that Callahan was subject to government pressure or that

this objective was squarely presented to the district judge.

     In  sum,  we  do not  think  that  cross  examination of

Callahan  was unreasonably  restricted.   Similarly,  since a

reasonable  opportunity  to  test  Callahan's   veracity  and

motives  was   offered,  no  Confrontation  Clause  issue  is

presented.     "Once  the  defendant  has   been  afforded  a

reasonable opportunity" for such an inquiry, "the trial judge

retains broad  discretion in determining the  scope or extent

of cross examination."  Garcia-Rosa, 876 F.2d at 237.  
                                   

                      B.  Sean McDonough

     Thompson  challenges  the district  court's restrictions

upon his cross-examination of  DEA agent Sean McDonough.   At

trial, McDonough  testified that the government  had lost the

only  copy  of  a  "corrected statement"  that  Thompson  had

provided  to  the  DEA   and  that,  according  to  Thompson,

contained material exculpatory evidence.  This  statement may

have  been  in  McDonough's  custody  at  the  time   it  was

misplaced.    On cross-examination  of  McDonough, Thompson's

                             -48-

counsel  sought to show that,  in a prior  unrelated case, 86

seconds  mysteriously had been  erased from an  audio tape in

McDonough's  custody.     The  trial   court  sustained   the

government's objection to this line of inquiry. 

     The intent of Thompson's  counsel in inquiring about the

erased  tape  was  to  suggest  to  the  jury  that  in  both

instances--the  missing  86  seconds and  the  misplaced  DEA

statement--Agent  McDonough  had  deliberately  concealed  or

destroyed  material evidence.   Counsel  did not  proffer any

proof that the missing portion of the tape had been linked to

misconduct by McDonough,  nor was there any showing  that the

corrected  statement  in  this  case  had  been  deliberately

misplaced.    Absent  a  foundation  for  this  inquiry,  the

district  court was  justified  under Fed.  R.  Evid. 403  in

forbidding the question.

  VII.  QUASHING OF SUBPOENAS OF SPRINGFIELD POLICE OFFICERS

     During direct examination, government witness Scott gave

the following account of  an incident that allegedly occurred

during his cooperation with  the DEA.  On November  27, 1987,

prior  to   Callahan's  agreement   to  cooperate   with  the

government,  two  DEA  agents   wired  Scott  with  a  hidden

recording device and brought him to  a bar to meet and record

a conversation with Callahan.   After the meeting, the agents

agreed  to allow  Scott  to stop  by  his girlfriend's  house

before returning to  DEA headquarters.   Scott went into  the

                             -49-

house--leaving the agents waiting in the car outside--and was

arrested by officers of the Springfield police department who

coincidentally were raiding the house as part of an unrelated

investigation.

     According to  Scott's  testimony, one  officer  searched

Scott  and found  nothing.   Then  a second  officer searched

Scott  and purported  to find  vials of  cocaine.   Scott was

taken to  police headquarters and charged  with possession of

cocaine with intent to  distribute.  Scott testified that  he

did  not have any cocaine in his possession on this occasion,

and  would never  have carried  cocaine  in such  a situation

since he knew it was standard procedure for the DEA agents to

search him  thoroughly each time he returned  to the vehicle.

Scott testified that after  being released by the Springfield

police officers he contacted the DEA agents to complain about

the  arrest--he thought at first  that the arrest  had been a

ploy by the DEA, in conjunction with  the Springfield police,

to  get him  "under their  thumb"--and that  subsequently the

charges were dismissed and he was not prosecuted.7

     Following  this  testimony,  several  of  the defendants

sought to  subpoena the Springfield police  officers involved

in this  incident in an  attempt to  prove that Scott  did in

                    

     7The DEA agents testified  that they too were approached
by Springfield police officers while waiting in their  car in
front  of the house.   Not wanting to  expose Scott's role in
the investigation, they quickly departed.

                             -50-

fact possess cocaine  on that  evening.   The district  court

quashed  the subpoenas, finding  that the  proposed testimony

was inadmissible  under Fed. R. Evid.  608(b), which provides

that "[s]pecific  instances of the conduct of  a witness, for

the  purposes  of  attacking   or  supporting  the   witness'

credibility, other than conviction of a crime as  provided in

rule 609, may not be proved by extrinsic evidence." 

     Defendants  argue that the  officers' proposed testimony

was not excluded by  Rule 608(b), because defendants did  not

seek merely to impeach Scott's credibility through  extrinsic

evidence of a  prior bad act but also sought  to contradict a

specific assertion  made by him during  his direct testimony,

thereby showing  that he had lied before the jury in the very

case.   Nevertheless, the  proposed contradiction  involved a

matter collateral to the main issues in this trial, since the

Springfield  incident did not in  any way involve  any of the

defendants  or the charges against them.  A court may, indeed

normally does,  preclude a party from  proving with extrinsic

evidence that a witness lied in court on a collateral matter.

See  United States  v. Tejada,  886 F.2d  483, 489  (1st Cir.
                             

1989); Walker v. Firestone Tire &amp; Rubber Co., 412 F.2d 60, 63
                                            

(2d  Cir. 1969).  Here,  the district court  was justified in

preventing  a major detour  into this  essentially irrelevant

episode.  

                             -51-

     Defendants  say that the Springfield officers' testimony

was  relevant because it  showed that Scott  continued to use
   

cocaine  even  after  his  cooperation with  the  DEA,  which

rebutted his  testimony that he contacted the  DEA because he

"knew what  we were doing  was totally and  completely wrong"

and wanted "to  make things  right."  But  Scott admitted  on

cross-examination that he used cocaine long after he began to

cooperate  with the DEA, in fact up  until a couple of months

prior to the  trial.   Thus, the Springfield  episode was  at

best cumulative evidence, and given the diversion involved to

procure it,  properly excluded as duplicative  on this issue.

Any  claim by  Scott  as to  the  purity  of his  motive  was

undoubtedly  discounted  by  the jury  since  Scott  received

$250,000 from the government, as well as other benefits.

         VIII.  BELATED PRODUCTION OF DEA NOTES, AND 
               TESTIMONY OF DEA AGENT O'BRIEN 

     Edward O'Brien was a  DEA agent who was involved  in the

early investigation  of this case, but  subsequently left the

DEA  under  some sort  of  cloud;  the circumstances  of  his

departure  from  the  agency  are  unclear.    Early  in  the

proceedings,  the court  granted  the government's  motion to

exclude any reference to O'Brien at trial, stating:  "I don't

want  him  coming  in  and the  government  being  prejudiced

against [sic] because they  had an agent who turned  out bad.

So we will kick that out."  

                             -52-

     On  the fifth  day of  trial, after  the court  made its

initial decision to exclude O'Brien, the  government produced

to defendants notes made by  DEA Agents McDonough and O'Brien

during their  initial debriefing of Scott.   Contained within

these documents  was a  notation that arguably  reads "driver

for Fitzgerald = Wall."   Grady argued that the  notes tended

to exculpate him,  since he  was accused of  being the  truck

driver for the  conspiracy.   His theory was  that the  notes

indicated that  the truck  driver was actually  an individual

named  Wally  Barrett,  whose  name  had  surfaced  on  other

occasions during the trial.

     Grady questioned  Agent McDonough about the notation but

McDonough testified that he was not present during the entire

debriefing,  that he  believed this  particular notation  was

made  by Agent O'Brien, and that  he (McDonough) knew nothing

about it.  Grady then asked the court either for dismissal or

a mistrial based on the belated disclosure of the exculpatory

evidence  or,  alternatively, for  permission  to call  Agent

O'Brien in light of these new developments.  The court denied

both  of  these requests.    Grady  argues,  first, that  the

belated  disclosure  of  the  DEA  notes  violated  Brady  v.
                                                         

Maryland, 373 U.S. 83 (1963), and deprived him of fair trial;
        

and  second,  that the  court's  exclusion  of Agent  O'Brien

further compounded this violation. 

                             -53-

     We   agree  that   the   "Wall"   notation   constituted

exculpatory  evidence  within  the  meaning  of  Brady.    It
                                                      

provided  Grady  with  a  basis  for  arguing,  or  at  least

developing evidence  to show, that "Wally" and  not Grady was

the truck driver.   However, in cases  of belated disclosure,

as  opposed   to  outright  non-disclosure,   of  exculpatory

evidence,  "the  critical  inquiry  is  .  .  .  whether  the

tardiness  prevented  defense  counsel  from   employing  the

material to good effect."   United States v. Devin,  918 F.2d
                                                  

280,  290 (1st Cir. 1990).   Here, the  notation was produced

early in the trial, well before the start of defendants' case

(indeed, prior to cross-examination of the government's first

witness).   We do not  believe that Grady  was prevented from

making good use of the information or otherwise prejudiced by

the delay.8  

     Although Grady  argues that  he was prejudiced  by being

deprived  of  the  opportunity  to  investigate  the   "Wall"

reference  prior to trial, he never asked the trial court for

a  continuance to allow him to investigate the reference.  We

have  held it  "incumbent  upon a  party  faced with  such  a

situation to  ask explicitly  that the  court grant  the time

                    

     8There is  no indication that the  notation was withheld
in  bad  faith  or  deliberately suppressed.    The  disputed
notation consists of  one line in a  voluminous collection of
notes; the notation  itself is difficult  to decipher and  is
subject to different readings.   Its exculpatory nature--even
assuming  defendants'  reading  is  the  correct  one--is not
immediately apparent.

                             -54-

needed to regroup, or waive the point . . . ."  United States
                                                             

v.  Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied,
                                                            

493  U.S. 862 (1989).   Nor has Grady  described any specific

avenue of investigation that would have been pursued had  the

notation been  disclosed earlier.   Accordingly, we  conclude

that the  belated disclosure of  the "Wall" notation  did not

prejudice Grady and does not entitle him to a new trial.    

     Grady  contends that at  the very  least he  should have

been permitted to call Agent O'Brien to the stand to question

him  about  the  notation.    The  government's   unsupported

response that  O'Brien "likely  had little to  add concerning

the  notes of  the Jeffrey  Scott debriefing"  is not  at all

comforting.   What O'Brien might have added is that Scott did

say  that   the  driver   referred  to  was   Wally  Barrett,

information  that  would  be  helpful  to  Grady  if it  were
                                                    

admissible for its  truth.  But Scott's statements to O'Brien

during the debriefing would have been inadmissible hearsay if

offered for their truth  (as opposed to impeachment).   Thus,

the  exclusion  of O'Brien  did not  prejudice Grady  in this

respect.

     The  only apparent  use that  Grady could  have made  at

trial  of  the "Wall"  notation  would have  been  to impeach

Jeffrey Scott's testimony.   Scott testified that  he did not

know the name of Innamorati's driver; Grady could  have asked

him on cross-examination whether  he recalled telling the DEA

                             -55-

that  the  driver's name  was Wally.    Grady sought  to call

O'Brien  to the stand to question him about the notation, but
       

he  never  sought  to  recall   Scott  for  further  cross  -

examination  once the notes were produced.  If Scott had been

asked about the  "Wall" statement and denied  making it, then

Grady might have been  entitled to call O'Brien in  an effort

to prove that  Scott in fact made the  statement.  Absent any

effort by  Grady  to cross-examine  Scott  on the  point,  we

cannot  see  how  the  court's  refusal  to  involve  O'Brien

prejudiced Grady.9

                   IX.  PAYMENTS TO WITNESS

     Scott,  a key  witness  for  the  prosecution,  received

$250,000  from   the  government  prior  to   trial  for  his

cooperation  as   well  as  immunity  from   prosecution  and

enrollment in  the federal  witness protection program.   The

$250,000  payment was  made pursuant  to a  DEA  program that

awards  twenty  percent  of  the value  of  seized  assets to

parties  who are  instrumental in  successful investigations.

                    

     9Grady also complains of  the district court's denial of
his motion for a mistrial based on a violation of the court's
sequestration  order.    The   violation  occurred  when  the
government  permitted  Fitzgerald  and Callahan  to  converse
together   in  the   prosecutor's  office   after  Callahan's
testimony but prior to Fitzgerald's.  The district court held
a voir dire, rebuked the government, but refused to declare a
mistrial.   Briefly addressing this issue,  Grady provides no
persuasive explanation for his  claim of prejudice and  we do
not  think that  the  trial court  abused  its discretion  in
denying  the mistrial motion.  See United States v. Rossetti,
                                                            
768 F.2d 12, 16 (1st Cir. 1985).

                             -56-

Gilberti argues that these benefits conferred upon Scott were

so  likely  to  induce   perjury  that  they  infringed  upon

defendants'  right  to a  fair trial,  and  he points  to our

dictum in United  States v.  Dailey, 759 F.2d  192 (1st  Cir.
                                   

1985),  that  "we  can think  of  no  instance  in which  the

government would  be justified  in making a  promised benefit

contingent  upon  the return  of  an indictment  or  a guilty

verdict."  Id. at 210 (footnote omitted).
             

     Subsequently in  United States  v. Cresta, 825  F.2d 538
                                              

(1st Cir. 1987),  cert. denied,  486 U.S.  1042 (1988),  this
                              

court upheld  an agreement much like  that in this case.   In

Cresta  a government  witness was  promised $50,000  from the
      

sale  of a vessel that was to  be seized and forfeited to the

government as a result of  the witness's cooperation.  Cresta
                                                             

relied  upon the facts that  the terms of  the agreement were

disclosed   to  defense  counsel   and  explored   on  cross-

examination;  there  was  substantial  corroboration  of  the

witness's  testimony; and  the court  admonished the  jury to

weigh carefully the credibility of accomplice testimony.  See
                                                             

id. at 546.10
  

     Those same facts are present in this case.  The terms of

the   agreement   were  not   concealed;  to   the  contrary,

                    

     10See also United States  v. Wilson, 904 F.2d  656 (11th
                                        
Cir.  1990)  (testimony  by government  witnesses  who  could
potentially recover up to $11 million held not to violate due
process), cert. denied, 112 S. Ct. 250 (1991).
                      

                             -57-

defendants'   counsel  questioned  Scott  closely  about  his

arrangements  with the  government, and  argued at  length in

closing that Scott should be disbelieved as a result of them.

 There was evidence to  corroborate virtually every aspect of

Scott's  testimony.   And the  court instructed  the jury  to

consider  carefully any  inducements or  advantages that  any

witnesses  had received.   Finally,  the $250,000  payment to

Scott was  completed  several days  prior to  trial, and  the

payment was  thus not directly  dependent upon the  result of

Scott's testimony in court.

     Clearly  such  immense  payments  are  troubling.    The

payments  may be  for  "information," rather  than for  later

testimony or convictions,  but the steps  are linked and  the

inducement  to testify  in accordance  with prior  reports is

obvious.   Yet  defendants are  regularly convicted  based on

testimony secured  by the prosecutor's decision  to reduce or

dismiss charges  against testifying co-defendants.   In fact,

Congress has enacted statutes  that directly reward those who

disclose  misconduct   and  who  doubtless  testify  for  the

                             -58-

government in the  ensuing trials.11   In all events,  Cresta
                                                             

is the governing law in this circuit and controls this case.

               X.  COMMENTS BY THE PROSECUTION 

     Boisoneau alleges  that he  was  unfairly prejudiced  by

improper  comments made  by  the  prosecutor  during  closing

argument.  First, Boisoneau  challenges the following passage

from  the prosecutor's rebuttal argument  at the close of the

case,  in   which  the  prosecutor  sought   to  justify  the

government's $250,000  payment to  Scott in exchange  for his

cooperation:

     What did the  government know before  Jeffrey Scott
     walked  into  the [DEA]  in  contrast  to what  the
     government  knew  as  a result  of  Jeffrey Scott's
     cooperation?   And even on pure  dollars and cents,
     consider  the amount  of forfeitures,  the seizures
     that it led to.  But go beyond that, because if you
     do a  cost benefit analysis you  must also consider
     the cost  that was saved to  society by dismantling
     an    operation like  the  one  you've heard  about
     here. . . . 

Boisoneau made  no objection  to these remarks  during trial,

and our review is therefore limited to plain error.   Fed. R.

Crim. P. 52(b).

                    

     11"[R]ewards  for  assistance   are  essential  to   the
business of detecting and punishing crime."  United States v.
                                                          
Bringham, 977 F.2d  317, 318 (7th Cir. 1992).   See, e.g., 31
                                                         
U.S.C.    3730(d) (providing for an award of up to 10 percent
of  the proceeds of suit to any individual whose provision of
information leads to government's recovery of funds under the
False  Claims  Act,  31 U.S.C.     3729);  26  U.S.C.    7623
(providing  for Secretary  of  Treasury to  make awards  "for
detecting  and  bringing  to  punishment  persons  guilty  of
violating the internal revenue laws").

                             -59-

     Boisoneau now argues that the prosecutor's statement was

an improper allusion to facts not in the evidence, namely, to

some  actual   cost-benefit  analysis  commissioned   by  the

government  showing the  advantages and disadvantages  of the

payment to Scott.   These remarks do  not suggest to  us that

some actual  cost-benefit analysis was undertaken:   they are

nothing more  than an argument, using  the latest fashionable

jargon, that  the  payment was  reasonable  in light  of  the

results obtained.  The  prosecutor's own language--"if you do
                                                          

a cost benefit analysis"--shows that he was merely suggesting

a way for the jury to look at the payment.

     Boisoneau also  objects to the prosecutor's statement in

closing  that  the  trial  judge alone  would  determine  the

sentences for each of the cooperating witnesses, and that the

jury  therefore  should not  think  that  the witnesses  were

getting  "a walk."   Boisoneau  points out  that in  fact the

government had dismissed, or  elected not to assert, numerous

criminal  charges against  many of the  cooperating witnesses

and also had promised to make motions for downward departures

with  respect to  certain  witnesses.   Therefore,  Boisoneau

argues,  the  government in  fact  had  far more  significant

influence  on  the  witnesses'  ultimate sentences  than  the

prosecutor's disclaimers would suggest.

     We agree that the  prosecutor's statement told only half

the story, but it is usually the function of opposing counsel

                             -60-

to remind the jury of the other half.   Indeed, witnesses are

normally cross-examined as to just such inducements.  Perhaps

in some instances a prosecutor's incomplete version of events

might  involve   so  much   distortion   that  a   cautionary

instruction  by the trial judge  would be required.   In this

instance,  no  objection  was  made  at  the  trial  nor  any

instruction sought, and there is no "plain error" here in the

court's failure to give  such an instruction sua sponte.   We
                                                       

have   similarly  examined   Boisoneau's   other  claims   of

prejudicial  error arising  out  of the  prosecutor's closing

arguments and find them unpersuasive.

     Nor do  we see any  merit in Thompson's  suggestion that

the   prosecutor's   closing   argument  contained   improper

"vouching" for the government's  witnesses.  The line between

the  legitimate  argument  that  a   witness's  testimony  is

credible and improper "vouching"  is often a hazy one,  to be

policed by the trial court in the first instance.  See United
                                                             

States  v. Martin,  815  F.2d 818,  822-23  (1st Cir.),  cert
                                                             

denied, 484 U.S. 825  (1987).  Here, at worst  the challenged
      

remarks  --  for  example, the  prosecutor's  statement  that

"[t]he  testimony  of the  witnesses  in  this case  is  well

corroborated  . .  . [a]nd  as a  result, you  know that  the

witness's  testimony  is true"  --  fell  in the  grey  area.

Thompson  did not  object  to the  remarks  at trial  when  a

                             -61-

curative instruction might have been given, and we think that

is the end of the matter.

              XI.  FAILURE TO PRESERVE EVIDENCE

     Thompson   argues  that  his  due  process  rights  were

violated by  the government's failure to preserve exculpatory

evidence,  specifically  a  DEA-6   form  prepared  by  Agent

McDonough summarizing an interview with Thompson.  It appears

that McDonough  interviewed Thompson  on March 10,  1988, and

then memorialized the interview  on the DEA-6 form.   On June

22,  1988, just  prior  to Thompson's  appearance before  the

grand jury,  McDonough again met with  Thompson, and Thompson

made  certain handwritten  corrections on  the form  and then

signed it.  In  the grand jury, the government  attorney read

each  statement on the DEA-6 form to Thompson, and then asked

Thompson to confirm the truth of the statement.  Thompson did

so, making some  modifications or corrections.  The form with

Thompson's handwritten  corrections was lost  after the grand

jury appearance.

     Thompson filed a motion to dismiss the indictment on the

ground that the DEA-6 form  as corrected by him prior to  the

grand jury appearance was  material exculpatory evidence, and

that  the  government's  failure  to preserve  that  evidence

deprived him  of a fair trial.  This motion was denied by the

magistrate judge  to whom it  was referred.   The  magistrate

judge's report advised the parties that pursuant to the local

                             -62-

rules the failure  to file written  objections to the  report

within ten  days "shall preclude further  appellate review by

the Court of  Appeals."   Thompson failed to  file a  written

objection.   The issue, therefore, was waived.  See Thomas v.
                                                          

Arn, 474  U.S. 140,  155 (1985);  United States  v. Valencia-
                                                             

Copete, 792 F.2d 4, 6 (1st Cir. 1986).
      

     Although we  will address waived issues  where necessary

to prevent  a miscarriage  of justice, we  certainly perceive

none  here.    The   corrected  DEA-6  form  was  essentially

preserved by  the grand  jury testimony itself,  during which

the government attorney  went through the  form line-by-line.

The transcript of this  grand jury testimony was read  to the

jury at trial.  

                   XII.  JURY INSTRUCTIONS

     Several  defendants--Thompson,   Letters,  Litterio  and

Boisoneau--challenge  various aspects of the district court's

charge to the jury.  

     First, Thompson  argues that the court  erred by denying

his request for an instruction stating that the motor vehicle

licenses and registrations were public documents.  As already

noted, one of the crucial pieces of evidence linking Thompson

to the conspiracy was his provision to Innamorati of registry

checks on the license plates  of vehicles of which Innamorati

was  suspicious.  Thompson asked  that the jury  be told that

"as a matter of law, motor vehicle licenses and registrations

                             -63-

are public  documents, and disclosure of  their contents does

not, in itself, violate the law."

     The only  case on the  point cited in  Thompson's brief,

Doe   v. Registrar of Motor Vehicles,  26 Mass. App. Ct. 415,
                                    

528 N.E.2d  880 (1988),  actually stands for  the proposition

that the motor vehicle  registry is not prima facie  a public
                                                   

record.  In any event, the government did not charge Thompson

with  stealing government secrets;  it was  enough for  it to

show that  Thompson's behavior in facilitating  access to the

registry  was part of the conspiracy.  There is no indication

that the instructions  as a whole misled the jury  as to what

was needed to convict on the conspiracy count.

     Second, Thompson challenges the district court's refusal

to instruct  that "mere proof of  a buyer-seller relationship

is  not enough  to convict  one as  a co-conspirator  on drug

conspiracy  charges."    This   instruction  is  at  best  an

incomplete statement of the law of conspiracy.   Depending on

the  surrounding  circumstances, a  buyer-seller relationship

could, in some cases, be the very core of a drug distribution

conspiracy.   See  Moran,  894 F.2d  at  1302-04.   For  this
                        

reason,   courts  that   have  approved   the  "buyer-seller"

instruction  have restricted  its use to  cases in  which the

evidence showed only  a single  or a very  limited number  of

sales for personal  use.   See United States  v. Canino,  949
                                                       

F.2d 928, 941 (7th Cir. 1991), cert. denied, 112 S. Ct. 1701,
                                           

                             -64-

1940  (1992); United States v. Medina, 944 F.2d 60, 65-66 (2d
                                     

Cir. 1991), cert. denied, 112 S. Ct. 1508 (1992).  
                        

     In  this instance,  the  gist of  the conspiracy  charge

against Thompson was not  his drug purchases as such  but his

other  affirmative  acts--notably, procuring  cellular phones

and performing license plate checks--that the government said

were knowingly designed to assist Innamorati's extensive drug

ring operations.   We doubt whether  the instruction Thompson

sought  is well  tailored  even  for  a  case  in  which  the

conspiracy  charge  focuses  on  multiple  purchases  and the

"defense"  is personal  use.   The  instruction is  even less

appropriate for the case actually presented against Thompson.

     Finally, Thompson complains in  a cursory fashion of the

trial  court's responses  to several  questions posed  by the

jury  during  its  deliberations.     For  example,  although

Thompson   argues   that  a   supplementary   instruction  on

conspiracy was a "misstatement"  of law, he fails to  tell us

how  the statement  was inaccurate.   We find  no prejudicial

error here, nor with respect to  each of Thompson's remaining

objections to the judge's handling of the jury's inquiries.

     Next,  Letters   says  that  the   court's  supplemental

instruction on  the definition  of "aiding and  abetting," in

response   to  a   jury  inquiry   on  the   fourth  day   of

deliberations, failed to tell  the jury that some affirmative

participation on the  part of the  defendant is required  for

                             -65-

conviction.    Letters failed  to  object  to the  challenged

language  at trial.   Once  again confining  our review  to a

search  for plain  error,  we find  none.   The  supplemental

instruction adequately  informed the  jury  of the  requisite

level  of participation  required to  convict for  aiding and

abetting.  Letters' underlying concern--that the jury be told

that merely purchasing  cocaine for personal use does not aid

and abet the seller's  possession with intent to distribute--

was specifically  addressed by the court  in the supplemental

instruction immediately after the portion Letters challenges.

     Finally, Litterio  and  Boisoneau  claim  as  error  the

district court's  refusal to give their requested "accomplice

testimony" instruction.  From reading their briefs, one might

get the impression that no "accomplice testimony" instruction

was  provided.   In fact,  the court  admonished the  jury at

length  on the  need  to weigh  carefully the  uncorroborated

testimony  of an  accomplice and  to consider  the advantages

that  such  witnesses might  receive  in  exchange for  their

testimony.    The  court   is  not  required  to   track  the

defendants'  requested language so long as the jury is fairly

informed of the  pertinent law, United States  v. Newton, 891
                                                        

F.2d 944, 951 (1st Cir. 1989), as it was in this instance.  

  XIII.  ADMISSION OF "DRUG LEDGER" AND TELEPHONE SUMMARIES 

     Thompson devotes a half page in his brief to an argument

that  the  court  abused   its  discretion  by  allowing  the

                             -66-

government  to  introduce two  items  of  evidence: first,  a

"ledger" and related evidence summarizing certain of the drug

sales made  by Tulowiecki; and second,  evidence of telephone

calls between various  telephone numbers associated  with the

alleged  conspiracy,  as  well  as  summary  charts  of  that

information.  

     The drug  "ledger" was  a book maintained  by Tulowiecki

for about a month  in the fall of  1987, in which  Tulowiecki

recorded  cocaine  sales,  showing  the  purchaser  (by  code

number), the amount  of narcotics bought,  the price and  the

date.    When not  using  the  ledger, Tulowiecki  frequently

recorded cocaine sales on  slips of paper, a number  of which

were also introduced into  evidence.  In addition, Tulowiecki

prepared  for use at trial a summary of the transactions that

were  recorded in  the  ledger and  on  the slips  of  paper.

Defendants did not object at trial to the introduction of the

ledger and  original  papers, but  they did  object when  the

government   sought   to   introduce  Tulowiecki's   summary.

Thompson's brief  does not identify any  basis for concluding

that the admission of these materials was error.

     The  telephone evidence  consisted of  frequency reports

showing the number of calls between various telephone numbers

of persons and businesses  associated with the conspiracy, as

well  as charts  summarizing that  information.   Many courts

have  admitted this  type  of evidence  in conspiracy  cases.

                             -67-

E.g.,  United States v. Porter,  821 F.2d 968,  975 (4th Cir.
                              

1987),  cert. denied, 485  U.S. 934 (1988);  United States v.
                                                          

Drougas,  748 F.2d 8, 25-26 (1st Cir. 1984).  Thompson argues
       

that  the telephone  records  did not  identify the  specific

persons  who made  or  received the  calls;  but this  merely

limits and does not eliminate their relevance.  Thompson also

says  that "testimony  and exhibits  made it  clear  that the

compilation of numbers  [in the  government's summaries]  did

not match the phone  records."  But Thompson fails  either to

specify  any respects  in  which the  summary materials  were

inaccurate or to cite us any such "testimony and exhibits."

             XIV.  "GUILT ASSUMING HYPOTHETICALS"

     Thompson  argues that he is  entitled to a  new trial on

account  of the  prosecutor's use,  in Thompson's  phrase, of

"guilt assuming hypotheticals" during redirect examination of

Lancaster  Police   Chief   Eric  Mcavene.     During   cross

examination   of  Mcavene,   Thompson's  counsel   sought  to

establish that it was  a common practice for police  officers

to  run  registry checks  on  license plates,  and  that such

checks  were  done  for   many  different  reasons  including

requests  from the  public.   Mcavene admitted  that registry

checks  were conducted for a  variety of reasons  and that he

was not consulted in every instance.

     In  response, government  counsel  sought to  dispel the

notion  that  registry information  was  freely disseminated.

                             -68-

Pursuing that  theme, the  prosecutor asked Mcavene,  "[I]f a

known drug dealer had  asked you for a Registry  check, would

you do  it for him?"   Before  the witness could  answer, the

court  upon objection  ruled (mistakenly) that  this question

had already been asked.   The prosecutor acquiesced and moved

on to his next inquiry:  "[I]f William Thompson had asked you

for the Registry check  would you have  done it?"  The  court

sustained Thompson's objection  to this question, struck  the

question, and denied Thompson's motion for a mistrial.

     It may be a close call whether either of these questions

was improper as an implied assertion that Thompson was a drug

dealer,  but we  need  not pursue  the issue.   Even  if both

questions were error,  they did not  conceivably have such  a

prejudicial impact as to  require reversal.  Neither question

was answered  by  the  witness,  one was  stricken  from  the

record,  and the  court  elsewhere instructed  the jury  that

statements of counsel are not  evidence.  The precise  limits

on who could obtain  registry checks was largely a  side-show

and Mcavene's attitude toward disclosure was a subject raised

by Thompson's own counsel.

                 XV.  MARK LITTERIO EVIDENCE 

     Litterio argues  that the court erred  by permitting the

government  to  introduce  evidence  of  a  drug  transaction

involving  Litterio's brother,  Mark Litterio,  as well  as a

statement  made by  Mark Litterio  to an  undercover officer.

                             -69-

Litterio was convicted under count five of the indictment for

possession of cocaine with intent to distribute.  The primary

evidence was  Tulowiecki's testimony that  Litterio purchased

four ounces  of cocaine from Innamorati in  late August 1987.

According to  Tulowiecki, Litterio  said at  the time  of the

purchase that he was buying the cocaine for his brother Mark.

To  corroborate  this   testimony,  the  government   offered

testimony from a parade of police officers  showing that Mark

Litterio  and an accomplice were involved in the sale of four

ounces of  cocaine just after James  Litterio's purchase from

Innamorati.

     Although the evidence of  the Mark Litterio  transaction

was a major detour,  the evidence was relevant to  the charge

against  Litterio in count five.  The fact that Mark Litterio

sold  four ounces of cocaine to  undercover agents just after

James  Litterio  bought  the  same  amount   from  Innamorati

strongly  corroborated  Tulowiecki's  testimony.    The  only

"prejudice" was  the potential for distracting  the jury with

details of an uncharged  crime, and this judgment  is largely

within  the discretion of the trial judge.  See United States
                                                             

v. Bonneau, 970 F.2d 929, 935 (1st Cir. 1992) ("only rarely--
          

and  in extraordinarily compelling circumstances" should this

court  "reverse  a  district  court's   on-the-spot  judgment

concerning  the  relative  weighing  of  probative  value and

unfair effect").

                             -70-

     Litterio  also  challenges  as  hearsay  the  admission,

through  the testimony of one of the officers involved in the

Mark  Litterio undercover  investigation, of  Mark Litterio's

contemporaneous  statement that  he was doing  the four-ounce

cocaine  deal  with  his brother  "Mickey"  (James Litterio's

nickname).   This statement, however, was  admissible against

Litterio  under Fed.  R. Evid.  801(d)(2)(E), which  excludes

from   the  definition   of   hearsay  "a   statement  by   a

coconspirator  of  a  party  during  the  course  of  and  in

furtherance of the conspiracy."   Litterio objects that there

is nothing  to show  that Mark  himself was  a member  of the

Innamorati ring.  But based  on this single transaction James

and Mark  Litterio were evidently engaged in  a conspiracy in

which  James   supplied,  and  Mark  sold,   four  ounces  of

cocaine.12    Mark  Litterio's  statement to  the  undercover

officers  was in  furtherance  of it.    Whether this  was  a

separate  conspiracy   or  part  of   the  larger  Innamorati

conspiracy makes no difference so far as the admissibility of

the statement against James Litterio is concerned.

              XVI.  REFERENCES TO "THE DEMARCOS"

                    

     12Mark  Litterio's statement itself may be considered in
determining  admissibility, see  Bourjaily v.  United States,
                                                            
483 U.S. at 178-79,  and in addition there was  evidence that
James Litterio stated to  Tulowiecki that he (James Litterio)
needed  the four ounces for  his brother Mark,  and that Mark
Litterio was  followed to James  Litterio's house immediately
after James Litterio received the drugs from Tulowiecki.

                             -71-

     Robert DeMarco Jr. argues that he was deprived of a fair

trial  by repeated references to "the DeMarcos."  He contends

that  these   collective  references  deprived   him  of   an

individual  adjudication of  guilt or innocence,  and instead

grouped him together with his father as a single entity.

     We have examined the record and conclude that the phrase

"the  DeMarcos" was  used as  a substitute  for  "both Robert

DeMarco Sr. and Robert  DeMarco Jr.," and that this  was made

clear  to the jury.   For  example, in  one of  the instances

cited by Demarco Jr.,  Callahan testified that he distributed

portions of  two half-kilograms of cocaine  to, among others,

"the Demarcos."   Upon counsel's objection  to the collective

reference, the  prosecutor asked  whether Robert  DeMarco Sr.

and Robert DeMarco  Jr. "were  both present" at  the time  of

this distribution, and Callahan replied, "Yes."

     A witness may testify that two persons jointly performed

a  given  act so  long as  confusion is  avoided.   Here, the

witness was merely using  the shorthand phrase "the DeMarcos"

to  refer to "both Robert DeMarco Sr. and Robert DeMarco Jr."

When counsel  objected, the  witness made clear  his meaning.

We have examined the other instances cited by DeMarco Jr. and

find them to be equally lacking in confusion or prejudice.

                 XVII.  EX PARTE PROCEEDINGS
                                

     After  the trial  concluded,  the government  discovered

information  in its  possession that  related to  an incident

                             -72-

recounted during the trial testimony of a government witness.

Although the government believed that the information was not

Brady material,  it did not  wish to conceal  the information
     

from  the   court  or  take  the   final  responsibility  for

appraising its importance.  At  the same time, the government

feared  that   release  of  the  information   would  pose  a

substantial danger of serious harm.

     Accordingly, the government submitted the information to

the district  court ex parte,  described the reasons  for its
                            

position  and  explained  why  it  feared  disclosure.    The

district court  ruled that  the information was  not material

and  that the  government's justification  for non-disclosure

was  persuasive.    The   district  court  sealed  its  order

containing these  rulings.   At no  time during  this episode

were  defendants  or  their   counsel  made  aware  of  these

proceedings or of the court's order.

     The government's  submission  and the  district  court's

order  were forwarded  to  this  court  and  brought  to  the

attention of this panel.   This court in turn issued an order

on  November 18, 1992,  informing all defense  counsel of the

existence  of the  ex parte  proceedings.   Not surprisingly,
                           

defendants have  moved for disclosure of  the information, or

at the very least a synopsis of the information  so that they

may argue  intelligently as to  its materiality and  the need

for disclosure.   Certain defendants also  argue that the  ex
                                                             

                             -73-

parte procedures utilized by the district court deprived them
     

of a fair trial.

     We sympathize  with defendants' protestations  and agree

that  the procedures  utilized in  this case  raise extremely

serious  issues.  Outside of emergencies, see Fed. R. Civ. P.
                                             

65(b) (temporary restraining orders), the ex parte submission
                                                  

of  information from  a party  to the  court and  the court's

ruling on that information without notice to or participation

of  the opposing  party  is fundamentally  at  odds with  our

traditions  of jurisprudence,   Haller  v. Robbins,  409 F.2d
                                                  

857, 859  (1st Cir. 1969), and  can be justified only  in the

most  extraordinary  circumstances.   Nevertheless,  in  rare

situations  requirements  of  confidentiality   outweigh  the

interest in adversarial litigation and permit a court to rule

on  an  issue  in  camera  without  the  participation of  an
                         

interested party.

     For example, in United States v. Perkins,  926 F.2d 1271
                                             

(1st  Cir. 1991),  the government possessed  information that

was  arguably useful  to  impeach a  government witness,  but

whose disclosure  would have jeopardized an  ongoing criminal

investigation.   The government submitted the  information to

the district  court for  an  in camera  determination of  its
                                      

materiality.   The court  concluded that the  information was

not material  and  need  not  be disclosed.    After  trial--

presumably after the threat to the investigation had ceased--

                             -74-

the  government's ex  parte submission  was unsealed  and the
                           

defendant was for the first time apprised of the information.

On appeal we upheld the court's finding of immateriality and,

implicitly, the procedure employed.

     There are  other examples.   Fed.  R. Crim.  P. 16(d)(1)

expressly  authorizes   the  court   to  deny   discovery  of

information sought  by  a  defendant based  on  an  ex  parte
                                                             

showing    by    the    government    of   the    need    for

confidentiality.13    The  Classified Information  Procedures

Act,  18 U.S.C. App.    1-16, permits the ex parte submission
                                                  

of  affidavits by the  government in support  of a protective

order  authorizing the  non-disclosure  of national  security

information.  See United States v. Pringle, 751 F.2d 419, 427
                                          

(1st Cir. 1984).  And under  Franks v. Delaware, 438 U.S. 154
                                               

(1978),  courts often  make  an in  camera assessment  of the
                                          

veracity of a confidential  government informant and the harm

from revealing his identity.  See United  States v. Southard,
                                                            

700  F.2d  1, 10-11  (1st Cir.),  cert.  denied, 464  U.S. 88
                                               

(1983).

     The  present  case  is  unusual because  not  only  were

defendants denied  access to  the material  but they  did not

even know of its submission to the court.  We  agree that the

                    

     13See e.g., United States v.  Napue, 834 F.2d 1311, 1317
                                        
(7th Cir.  1987)  (approving this  procedure  in  appropriate
cases).   Rule 16(d)(1) requires  the court  to preserve  the
records of the ex parte communication for the appellate court
                       
in the event of an appeal, as was done in this case.

                             -75-

secret  submission  to  the  court is  especially  dangerous,

depriving  the  opponent even  of  the  opportunity to  argue

generally  against the  need for  secrecy.   Yet there  is no

question here  of  convictions  based  upon  secret  evidence

furnished to the factfinder but withheld from the defendants.

What  the government did was to provide material to the court

to permit the court to determine whether under applicable law

the material needed  to be  produced to the  other side  and,

collaterally, to  determine  whether there  was a  legitimate

reason for continued secrecy in the submission.

     Each  of the three  judges on this  panel has considered

the information  in this  case bearing  on these  two issues.

Our standard in this inquiry was to resolve every  legitimate

doubt in favor of the defendants precisely because they could

not argue  the matter for  themselves.  We  nevertheless have

concluded that there was a substantial threat of serious harm

warranting  the initial  examination  by the  district  court

without  notice to  defendants;  that the  threat has  abated

sufficiently to justify notice to the  defendants now but not

the  disclosure  of  the  information itself;  and  that  the

information, whether or not technically Brady material, would
                                             

not  have significantly  assisted any  of the  defendants and

could not conceivably have altered any of the verdicts.

     As  for  the  government's  action  in  submitting   the

information   to  the   district  court  without   notice  to

                             -76-

defendants, we would expect this dangerous  course to be very

rare  indeed,  but  in this  instance  we  find  that it  was

justified  and, given  the unimportance  of the  material, it

inflicted  no prejudice on the defendants.  No doubt we could

construct a judicial rule forbidding the government, absent a

statute  or regulation,  from making  any secret  submission.

But  we think that the interests of justice are better served

by  encouraging  the government  to  let  the district  court

resolve  the Brady  issue or  like questions in  close cases.
                  

Defendants  in  general would  not  gain from  a  regime that

encouraged the government to decide the matter itself.  

                  XVIII.  SENTENCING ISSUES

                       A.  Introduction

     Thompson,  DeMarco Sr., Letters,  Litterio and Boisoneau

challenge the district court's calculation of their sentences

under  the  Sentencing  Guidelines.14    Many of  defendants'

arguments concern  the court's  calculation of the  amount of

narcotics attributable  to each defendant.   It is  useful to

say a few words on the subject at the outset.  

     Under the  Guidelines, the  sentence for  a drug-related

offense hinges  substantially upon the total  amount of drugs

involved in  that offense.    See U.S.S.G.    2D1.1(c)  (drug
                                 

                    

     14The  district court  applied the  1990 version  of the
Sentencing  Guidelines  and  therefore  all  citations unless
otherwise indicated are to that version.

                             -77-

quantity  table).15   This determination  often turns  on the

"relevant   conduct"  provision  of   the  Guidelines,  which

provides  that  a defendant's  base  offense  level shall  be

determined on the basis of "all acts and omissions  committed

or  aided  and abetted  by the  defendant,  or for  which the

defendant  would  be  otherwise  accountable,  that  occurred

during the commission  of the offense of conviction  . . . ."

U.S.S.G.    1B1.3(a)(1).   In the case  of concerted criminal

activity, conduct "for which the defendant would be otherwise

accountable" includes  "conduct of others  in furtherance  of

the execution  of  the jointly-undertaken  criminal  activity

that  was  reasonably foreseeable  by  the  defendant."   Id.
                                                            

comment note 1.

     Thus, "[t]he  central concept . .  . is foreseeability."

United  States v.  O'Campo,  973 F.2d  1015,  1023 (1st  Cir.
                          

1992).   This means that  each member of  a drug distribution

conspiracy  may  be  held  accountable at  sentencing  for  a

different   quantity   of   narcotics,   depending   on   the

circumstances of  each defendant's involvement.  See U.S.S.G.
                                                    

   1B1.3 comment note 1.  The foreseeability determination is

                    

     15Section  2D1.4   provides  that  if   a  defendant  is
convicted  of conspiring  to  commit an  offense involving  a
controlled substance, "the offense level shall be the same as
if  the   object  of  the  conspiracy  or  attempt  had  been
completed."  Section  2D1.1, in turn, sets  forth the offense
levels  for  the  completed  offenses  of   distribution  and
possession with intent to distribute based primarily upon the
drug quantity table.

                             -78-

inherently fact-bound, and   "[a] district court's finding of

the amount of drugs involved in an offense will be overturned

on appeal only upon a showing of clear error."  United States
                                                             

v. Tracy, 989 F.2d 1279, 1287 (1st Cir. 1993).  "[W]here more
        

than one  reasonable inference  may be drawn  from undisputed

facts, the court's choice from among supportable alternatives

cannot be clearly erroneous."  United States v. McCarthy, 961
                                                        

F.2d 972, 978 (1st Cir. 1992).

     In this case, the  court held an evidentiary hearing  to

determine the drug quantities attributable to each defendant.

Callahan  and Tulowiecki  testified regarding the  amounts of

narcotics  distributed to  certain  of the  defendants.   The

court also  relied heavily  on detailed  pre-sentence reports

prepared  by the  probation officer.   See  Fed. R.  Crim. P.
                                          

32(c).   Thereafter,  the court  issued a  memorandum opinion

setting  forth  its  factual  findings  including  "how  much

controlled  substance is  attributable  to each  defendant in

order  to  establish his  base  offense  level for  Guideline

purposes."  Order of July 12, 1991 at 2.  

                     B.  William Thompson

     Thompson first argues that  the Sentencing Guidelines do

not apply to him because the principal evidence against him--

the  provision  of  registry  checks  and  cellular  phones--

occurred  prior   to  November  1987,   when  the  Sentencing

Guidelines  took  effect.    Thompson waived  this  claim  by

                             -79-

failing  to  make  it during  the  sentencing  process.   See
                                                             

Figueroa, 976 F.2d  at 1462.   In any  event, the  Guidelines
        

applied  to Thompson, because he  was a member  of an ongoing

conspiracy  that continued  past  the effective  date of  the

Guidelines  and   Thompson  did   not  withdraw  before   the

Guidelines became  effective.   See United States  v. Thomas,
                                                            

895 F.2d 51, 57 (1st Cir. 1990).

     Thompson next contests  the calculation of the  quantity

of  drugs for which he is accountable.   Thompson's principal

contributions to the venture  did not lie in  particular drug

transactions  but  rather in  the  provision  of services  to

Innamorati.     Thompson   helped  Innamorati   set   up  his

communications network and ran  license plate registry checks

on prospective customers, and  Thompson knew Innamorati was a

large-scale distributor.   Innamorati himself was responsible

for the  importation  and distribution  of  approximately  16

kilograms of cocaine and 450 pounds of marijuana.

     The   pre-sentence   report   concluded  that   Thompson

purchased  small  quantities  of  cocaine  for  personal  use

amounting  to  approximately  46 grams.    Further,  Thompson

admitted before the grand  jury that he had been  aware since

1983 or  1984 that  Innamorati was distributing  cocaine, and

that  he  often  was   present  in  Innamorati's  house  when

Innamorati  possessed large  amounts  of cocaine.   Based  on

these  facts, the  probation  officer (and  later the  court)

                             -80-

determined that  it was reasonable to  conclude that Thompson

could have  foreseen that Innamorati was  dealing in multiple

kilograms.   Recognizing  that it  was engaged  in a  "highly

speculative  task," the  probation  officer  determined  that

Thompson  could  reasonably  have foreseen  3.2  kilograms of

cocaine, based  on the cocaine  purchased and the  cocaine he

personally saw in Innamorati's house.

     We  think the 3.2 kilogram finding is  at the low end of

the range  of figures that might reasonably have been chosen.

Thompson   knowingly   assisted   Innamorati's    drug   ring

operations, well  aware that  Innamorati was involved  in the

importation and distribution of large amounts of cocaine.  He

saw  large caches  of cocaine in  Innamorati's home  and made

purchases  for  himself,  and   the  district  court  treated

Thompson favorably by  limiting his  accountability to  these

amounts.  The  computation of what  Thompson himself saw  and

bought  is   necessarily  an   estimate  but  is   hardly  an

implausible one.  We see no error.

     Thompson  argues that  the court  wrongly  increased his

base offense level under U.S.S.G.   3B1.3, which provides for

a two-level  enhancement if "the defendant  abused a position

of  public  or  private  trust  .   .  .  in  a  manner  that

significantly  facilitated the  commission or  concealment of

the offense."  The  court based this enhancement on  the fact

that Thompson  had worked as a  Massachusetts Registry police

                             -81-

officer from 1978 until  some time around 1985 and  used that

position  to gain access to the registry computer and provide

license plate checks to Innamorati.  

     Employment   as  a   registry  police   officer  clearly

qualifies as a  "position of public .  . . trust"  within the

meaning  of the Guideline.  E.g., United States v. Rehal, 940
                                                        

F.2d 1, 5  (1st Cir.  1991) (police sergeant).   Although  we

have found no case law on point, we do not believe it matters

that Thompson was no longer employed with the registry at the

time he provided the information to Innamorati, so long as he

abused the access that his former position afforded him.  The

Guideline itself does  not limit its application  to cases in

which  the  defendant  is  employed  at  the  time,  and  the

underlying policy appears to apply to this case.  

     If and when others among the public could gain access to

motor  vehicle information  in the  registry is  not entirely

clear.  But the evidence  at trial indicated that  Thompson's

prior employment  made it  easier for  Innamorati  to do  so.

There was police testimony that it was improper for anyone to

perform  a check without  a valid law  enforcement purpose, a

test that Thompson's activities clearly  did not meet.  Given

these facts,  we do  not  believe that  the sentencing  judge

committed clear  error by  concluding that Thompson  abused a

position of public trust.  See Rehal, 940 F.2d at 5 (applying
                                    

                             -82-

"clearly  erroneous" standard  of  review  to  abuse-of-trust

adjustment under section 3B1.3).

     Finally, Thompson argues that the court erred by failing

to   award  him   a  four-level   reduction  as   a  "minimal

participant" under section 3B1.2(a).  A "minimal" participant

is defined as one who is "plainly among the least culpable of

those involved in the conduct of a group."  U.S.S.G.    3B1.2

comment note 1.  A "minor" participant"-- defined as one "who

is less culpable than most other participants, but whose role

could  not be described as minimal," id. (n.3) -- is entitled
                                       

to  a two-level  reduction under  U.S.S.G.    3B1.2(b).   The

Guideline  also  permits the  court  to  award a  three-level

decrease to persons whose participation was more than minimal

but less than minor.     The four-level "minimal participant"

adjustment  was  intended to  be  applied  "infrequently"; an

example given is an  individual recruited as a courier  for a

single transaction  in  an larger  enterprise.   Id. note  2.
                                                   

Here, the  court concluded that  Thompson was not  a "minimal

participant" in  light of  his substantial assistance  to and

close association  with Innamorati.   At the  same time,  the

court  found   that  Thompson   played  a  limited   role  in

Innamorati's  overall  distribution activities,  and  was not

shown  to have  cocaine  himself or  to  have shared  in  the

profits.    The court  was  reasonable,  indeed generous,  in

                             -83-

awarding Thompson a three-level reduction for persons falling

in between the "minimal" and "minor" participant categories.

                    C.  Robert DeMarco Sr.

     DeMarco Sr. challenges the court's determination that he

is accountable for  4.25 kilograms of cocaine.   This finding

was  based on  the  testimony of  Callahan at  the sentencing

hearing that he  distributed an average of a quarter kilogram

of cocaine per month to DeMarco Sr. from January 1987 through

February 1988.  It is unclear whether  Callahan was including

in this "average"  one or  both of  two initial  one-kilogram

sales  to DeMarco Sr.   But the district  judge resolved that

uncertainty  by  concluding that  one  of  the kilograms  was

included  in the  average  and  the  other  was  not.    This

conclusion  was  not  clearly erroneous.    Indeed,  Callahan

testified:

     I  would say the second  full kilo was  part of the
     average.  But conservatively  speaking, I would say
     you could  exclude the  first kilo and  the average
     would still be quarter kilo a month.

Thus,  the sum of 4.25 kilograms was derived by totalling the

quarter  kilogram sales over  a thirteen-month  period (which

amounts to  3.25 kilograms),  and then adding  the additional

one-kilogram  sale.   Although  there  were discrepancies  in

Callahan's testimony as to  the quantities and dates of  drug

sales  to  DeMarco  Sr.,   "the  court's  choice  from  among

supportable alternatives  cannot be clearly erroneous."   See
                                                             

McCarthy, 961 F.2d at 978.
        

                             -84-

     DeMarco  Sr.  also  argues  that the  court  abused  its

discretion by  failing to  award him the  reductions provided

under  section 3B1.2  to  "minor" or  "minimal" participants.

The district  court was justified in  concluding that DeMarco

Sr. was a  major customer whose monthly  purchases of quarter

kilograms of cocaine  for more  than a year  helped keep  the

conspiracy in  operation.   Indeed, as the  government points

out, only two  of the  defendants--Innamorati and  Grady--had

more cocaine  attributed to  them at sentencing  than DeMarco

Sr.   We  find no  error in  the court's  refusal to  grant a

downward adjustment.

                     D.  William Letters

     The  court found  that Letters  was responsible  for 510

grams of cocaine.  This  was less than a third of  the amount

attributed to  Letters by the probation  officer.  Tulowiecki

testified at trial  that he delivered  quarter, half or  full

ounces of cocaine at least weekly and often several times per

week  to  Letters between  January  1987  and February  1988.

Taking an average of one ounce or 28 grams per week over this

fourteen-month period, the probation officer  determined that

Letters  should be  held responsible  for approximately  1588

grams.   For reasons that are unexplained,  the court reduced

this amount to 510 grams.  The court's reduction did not have

a corresponding  effect on Letters'  sentence, however, since

                             -85-

the Guidelines supply the  same base offense level of  26 for

any quantity between 500 grams and two kilograms. 

     Despite Tulowiecki's testimony,  Letters points out that

the  chart prepared  from Tulowiecki's drug  ledger reflected

the sale of only 336.5  grams of cocaine to Letters.   But it

was clear  from Tulowiecki's testimony  at trial  and at  the

sentencing hearing  that the chart was  incomplete; it showed

only sales over a  limited period of time and for which there

were  written records, not all sales.  The chart showed sales

to  Letters only for the  period June 1987  to February 1988,

whereas Tulowiecki  testified that  deliveries  were made  to

Letters starting in January 1987.  In sum, although the basis

for the court's calculation of 510 grams does not appear from

the  record, the  evidence  supported a  determination of  at

least that amount.

     Letters also challenges the calculation of  his criminal

history category.    On March  30,  1990, while  Letters  was

released  on bail pending trial in this case, he was arrested

for possession of cocaine with intent to distribute.  Letters

was convicted of that offense in April 1991 and was serving a

sentence on that conviction at the time of sentencing in this

case.    This  new  conviction  increased  Letters'  criminal

history  by three  points  pursuant to  U.S.S.G.    4A1.1(a),

which  directs the district court  to "add 3  points for each

prior  sentence of  imprisonment exceeding  one year  and one

                             -86-

month."    Combined with  other  pertinent  information, this

increase  gave  Letters a  total  of  seven criminal  points,

placing him in Criminal History Category IV.

     Letters now  argues that  the March 1990  offense should

not have been  included in the calculation  because under the

Guidelines "prior sentences imposed  in related cases" are to

be  treated   as  one   sentence  in  the   criminal  history

computation. U.S.S.G.    4A1.2(a)(2).  Letters contends  that

the March  1990 offense was  "related" to the  conspiracy for

which he was convicted in this case, and therefore should not

have been separately  considered in determining  his criminal

history.   Letters, however,  did not  make this  argument at

sentencing, in  response to  the calculation of  his criminal

history  in  the Pre-sentence  report  or  at the  sentencing

hearing  before  the  district   court.    The  argument  was

therefore  waived.  See Figueroa, 976 F.2d at 1462.  Contrary
                                

to   Letters'  brief,  the   statutory  provision  permitting

appellate  review   of  sentencing   errors,   18  U.S.C.    

3742(e)(1),  does  not  disturb the  long-standing  rule that

claims must first be  made in the district court  to preserve

them for review.16

                    

     16Even  if  the  issue had  not  been  waived,  there is
substantial  reason  to  believe  that  Letters'  March  1990
offense occurred after the  end of the Innamorati conspiracy.
The DEA search warrants were executed in February 1988 and by
March  1988  Innamorati  was   in  prison  on  a  state-court
conviction.   

                             -87-

                      E.  James Litterio

     Litterio  contends that there  was insufficient evidence

to  support the  district  court's determination  that he  is

responsible for  1.7 kilograms of cocaine.   The 1.7 kilogram

figure is  based on Tulowiecki's testimony  that he delivered

small amounts  of cocaine to  Litterio several  times a  week

between  January   1987  and   February  1988  (based   on  a

conservative estimate of 10 grams per week,  the total amount

was fixed at 600  grams); on evidence that Litterio  provided

four ounces (112 grams)  of cocaine to his brother  Mark that

were  then sold  to  undercover agents;  and on  Tulowiecki's

testimony  that  soon  after  the  four-ounce  deal  Litterio

ordered an  additional kilogram  of cocaine  from Innamorati,

although the  deal was canceled  when it was  discovered that

undercover officers might be involved. 

     Although  Litterio argues  that  he should  not be  held

responsible for  cocaine that he purchased  for personal use,

this confuses  the standard for criminal  liability with that

for  sentencing accountability.   Purchases  by an  addict or

casual user for personal use may not automatically make one a

member of a conspiracy to distribute.  The situation is quite

different where, as here, the evidence shows that there was a

conspiracy and that a defendant was a member.  At that point,

that defendant's  purchases for personal use  are relevant in

                             -88-

determining  the quantity  of drugs  that the  defendant knew

were distributed by the conspiracy.

                      F.  John Boisoneau

     The court held Boisoneau responsible for 316.52 grams of

cocaine and  sentenced him  to 33 months  imprisonment, which

was at the bottom  of the applicable range.   The calculation

of 316 grams included approximately 250 grams of cocaine that

Boisoneau  observed  on  one  occasion   while  visiting  the

Edgewater Hills safehouse.  When Boisoneau saw this "hunk" of

cocaine he told Innamorati to put it away because it made him

nervous.  Boisoneau argues  that in light of his  reaction to

the 250 grams of cocaine it was unreasonable for the court to

hold him accountable for that amount at sentencing.

     The standard in  computing the quantity of  drugs is the

amount  of  cocaine  that  Boisoneau reasonably  should  have

foreseen  to have  been embraced  by the  conspiracy  that he

entered.   See O'Campo, 973 F.2d  at 1026.  The  250 grams of
                      

cocaine  that Boisoneau observed in Innamorati's safehouse is

reasonably  included  in  determining  the  total  amount  of

cocaine  that Boisoneau  could have  foreseen, regardless  of

whether  the amount made him nervous.  If there were evidence

that Boisoneau effectively withdrew from the conspiracy after

he  saw the  "hunk" and  realized the  scope of  Innamorati's

operation,  this would be a  different case, but  there is no

evidence of any such withdrawal.

                             -89-

                            * * *

     In  these  ten appeals,  somewhere  between  50 and  100

points were  raised by individual  defendants, although there

is  some  overlap.   We  have addressed  those  that appeared

substantial  and we  have  considered  without  discussion  a

number of others that were plainly without merit, were raised

in a perfunctory fashion, or both.  Because of the number  of

claims, the defendants' briefs  were reviewed again after the

opinion was prepared to  make certain that no claim  of error

was overlooked.     The  judgments  are affirmed  except that
                                                             

the judgment of conviction  of defendant Grady on Count  4 is
                                                             

vacated and his case is remanded for resentencing. 
                                                 

                             -90-
