
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1368                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     SHANE WELCH,                                Defendant, Appellant.                                 ____________________        No. 92-1370                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 CHRISTOPHER DRIESSE,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________             Paul J. Haley, with whom Scott L. Hood and The Law Office of Paul             _____________            _____________     ______________________        J. Haley, P.A. were on  brief for appellant Shane Welch.   John P. Rab        ______________                                             ___________        for appellant Christopher Driesse.             Terry L. Ollila,  Special Assistant United States  Attorney, with             _______________        whom  Peter  E.  Papps,  United  States Attorney,  was  on  brief  for              ________________        appellee.                                 ____________________                                  December 30, 1993                                 ____________________                                                   2                    CYR, Circuit Judge.   This opinion addresses  the sepa-                    CYR, Circuit Judge.                         _____________          rate appeals of Christopher Driesse and Shane Welch, two youthful          defendants who were convicted of conspiring with  their ten adult          codefendants to possess and  distribute cocaine, see 21 U.S.C.                                                              ___          846 (1988), as part of a New Hampshire drug distribution ring led          by David Sepulveda during the  period 1985-90.  See United States                                                          ___ _____________          v. Sepulveda, No. 92-1362 (1st Cir. Dec. 20,  1993) [___ F.3d ___             _________          (1st Cir.  1993)] (affirming  convictions of  ten codefendants);1          see also United  States v. Sepulveda, No. 92-1258  (1st Cir. Dec.          ___ ____ ______________    _________          30, 1993)  [___ F.3d  ___ (1st Cir.  1993)] (affirming  denial of          post-trial  motion  for dismissal  or  new trial  based  on newly          discovered  evidence).    These  appeals  are  accorded  separate          treatment primarily  because Driesse  and  Welch initiated  their          participation  in the Sepulveda  conspiracy prior to  their eigh-          teenth birthdays.  Although both came of age while their involve-          ment  in the criminal alliance continued, appellants contend that          the district court lacked jurisdiction and deprived them of their          rights  under the  Federal Juvenile  Delinquency  Act, 18  U.S.C.             5031-5042 (1988 & Supp. 1992) (FJDA).           I.   Appellants' Common Claims Under FJDA.          I.   Appellants' Common Claims Under FJDA.               ____________________________________                    Appellants,  whose   participation  in   the  Sepulveda          conspiracy  spanned their  eighteenth birthdays,  challenge their                                        ____________________               1We  refer the  reader to  the main  Sepulveda  decision for                                                    _________          factual detail not  directly relevant to these  separate appeals.          See Sepulveda, No. 92-1362 [___ F.3d ___].          ___ _________                                          3          convictions  on the  grounds that  the district  court failed  to          comply with  the FJDA  by refusing  to:   (1) conduct  a pretrial          evidentiary hearing to  determine its jurisdiction to  try appel-          lants as  adults; (2) sever  their trial from their  ten codefen-          dants; (3)  instruct the jury  that conduct prior to  their eigh-          teenth  birthdays  ("pre-majority  conduct")  could not  evidence          their  guilt; and  (4) grant  their motion  to dismiss,  based on          insufficient evidence of their post-majority participation in the          conspiracy.2               A.   Pretrial Hearing on Jurisdiction.               A.   Pretrial Hearing on Jurisdiction.                    ________________________________                    Appellants first  maintain that  the FJDA divested  the          district court of jurisdiction to  try them as adults unless some          of  their  conspiratorial  conduct occurred  after  they  reached          eighteen  years of age  ("post-majority conduct").   Since appel-          lants contested  the  factual  basis  for the  charge  that  they          participated in  the Sepulveda conspiracy  after attaining  their          majority, they insist that the FJDA required  a threshold eviden-                                                          _________          tiary hearing  on their jurisdictional claim before they could be                                                       ______ ____ _____ __          subjected to trial as adults.3  We do not agree.          _________ __ _____ __ ______                    The FJDA defines a "juvenile"  as "a person who has not          attained his eighteenth birthday, or for the purposes of proceed-                                            __                                        ____________________               2Driesse  became   eighteen  on  April 6,  1988;   Welch  on          November 20, 1989.               3Apparently satisfied  that the  allegations of  appellants'                                                ___________          post-majority  conduct were sufficient  to satisfy the  FJDA, the          ____          district  court  denied  their pretrial  motions  to  dismiss the          indictment for  lack of jurisdiction,  as well as  their requests          for a pretrial evidentiary hearing.                                            4          ings and  disposition under  this chapter for  an alleged  act of                                                            _______  ___ __          juvenile  delinquency, a person who has  not attained his twenty-          ________  ___________          first birthday  . . . ."    18 U.S.C.   5031 (emphasis  added).4           Both Welch and Driesse were between ages  eighteen and twenty-one          at  the time  of  their indictment.    "Juvenile delinquency"  is          defined as "the violation of a law of the United States committed          by a  person prior  to his eighteenth  birthday which  would have                       _____  __ ___ __________  ________          been  a crime if  committed by an adult."   Id. (emphasis added).                                                      ___          Thus, the FJDA does not apply to  "a defendant who . . . is not a          juvenile and who has not  committed an act of juvenile delinquen-          cy."  United States v. Doerr, 886 F.2d 944, 969 (7th Cir. 1989).                _____________    _____                    Generally  speaking, it is  readily apparent  whether a          non-continuing substantive  violation was committed  prior to  or          after the  alleged offender's  eighteenth birthday.   See  United                                                                ___  ______          States v. Cruz,  805 F.2d 1464, 1477 n.15 (11th Cir. 1986), cert.          ______    ____                                              _____          denied, 481 U.S. 100, and cert. denied, 482 U.S. 930 (1987).   On          ______                ___ _____ ______          the  other hand,  a  criminal conspiracy      often a  continuing          offense     may  persist long  past  its commencement,  sometimes                                        ____________________               4The  FJDA's remedial scheme  focuses primarily on  the cir-          cumstances of  the alleged offender, particularly  the offender's          current prospects for  rehabilitation outside the  adult criminal          _______          justice system, and only secondarily on the offender's age at the          time of  the  alleged offense.   Accordingly,  even conduct  that          occurred entirely before  age eighteen has  been held not  wholly          exempt  from adult  criminal prosecution.   See United  States v.                                                      ___ ______________          Hoo, 825  F.2d 667,  670 (2d Cir.  1987) (accused  indicted after          ___          twenty-first  birthday is  criminally liable,  as  an adult,  for          illegal  conduct committed  entirely before age  eighteen), cert.                                      ________ ______                 _____          denied, 484 U.S. 1035 (1988); In re Martin, 788 F.2d  696, 697-98          ______                        ____________          (11th  Cir.) (same),  cert. denied,  478  U.S. 1009  (1986).   Of                                _____ ______          course, given that Welch and Driesse were under age twenty-one at          indictment, this precise issue is not before us.                                          5          spanning the eighteenth birthday of  an alleged conspirator.  See                                                                        ___          United States v.  Gjonaj, 861 F.2d 143, 144 (6th  Cir. 1988); see          _____________     ______                                      ___          also United  States v. Giry, 818 F.2d  120, 135 (1st Cir.), cert.          ____ ______________    ____                                 _____          denied, 484 U.S. 855 (1987).5            ______                    The government asserts that the FJDA is inapplicable to          appellants  simply because the  indictment charged that  the con-                                                     _______          spiracy spanned their  eighteenth birthdays.   Appellants counter          that  the FJDA's  applicability in  a conspiracy  case ought  not          depend  conclusively on  bare allegations as  to the  time period          spanned by  the conspiracy or  the defendant's membership  in it.          On balance,  however, we  find the  allegation-based approach  to          FJDA  applicability more consonant  with its language  and struc-          ture, its legislative history, the case law, and important policy          considerations.                    Prosecutorial discretion  is a hallmark of the criminal          justice system.   See Wayte v. United  States, 470 U.S. 598,  607                            ___ _____    ______________          (1985) ("[T]he  decision whether  or not  to prosecute,  and what          charges to  file or  bring before a  grand jury,  generally rests                                        ____________________               5The  term "alleged  act,"  as  used in     5031, means  the          alleged  offense, not each  separate act comprising  the offense.          Thus, the  FJDA cannot  be read to  preclude an  adult conspiracy          prosecution simply  because the  accused's  participation in  the          conspiracy began while he  was under age eighteen    or  in other                     _____          words,  because  he  committed  an "act"  in  furtherance  of the          conspiracy prior  to age eighteen which might  be viewed indepen-          dently as an "act of juvenile delinquency."  See, e.g., Cruz, 805                                                       ___  ____  ____          F.2d  at 1475 (citing United States v.  Spoone, 741 F.2d 680, 687                                _____________     ______          (4th  Cir.  1984)).   Otherwise,  defendants age  18-21  would be          insulated  from criminal prosecution  simply because they  got an          early start.   Neither does the FJDA  make the defendant's age at          the time of the offense a substantive "element" of every criminal          offense.   See United States  v. Frasquillo-Zomosa, 626  F.2d 99,                     ___ _____________     _________________          101 (9th Cir.), cert. denied, 449 U.S. 987 (1980).                           _____ ______                                          6          entirely  in [the  prosecutor's]  discretion.") (quoting  Borden-                                                                    _______          kircher v.  United States, 434  U.S. 357, 364 (1978)).   Notwith-          _______     _____________          standing several amendments expanding the role of the courts, the          FJDA continues to impart considerable prosecutorial discretion as          to whether an accused will be  tried as an adult even though  the          criminal conduct charged qualifies  as an act of  juvenile delin-          quency.6  For  example, pursuant to 18 U.S.C.    5032 the govern-          ment may bring a motion  to transfer a juvenile defendant to  the          district court for trial as an adult  if the juvenile is at least          fifteen years of age and the government alleges that the juvenile          committed  certain  enumerated   "transferable"  offenses  (e.g.,                                                                      ____          violent crimes  or  controlled substance  violations).   Although          "transfer" is subject  to an "interest of justice"  test as well,          the  district  court nonetheless  may  assume, without  receiving          evidence, that the government's  factual allegations relating  to          the character of  the offense are true.   See In re  Sealed Case,                                                    ___ __________________          893  F.2d 363, 369  (D.C. Cir. 1990);  United States v.  Doe, 871                                                 _____________     ___                                        ____________________               6Enacted  in  1938,  the FJDA  originally  provided absolute          discretion to the  Attorney General to try  juvenile offenders as          adults.  See  18 U.S.C.   921  (1940); see also United  States v.                   ___                           ___ ____ ______________          Quinones, 516 F.2d 1309, 1311 (1st Cir.) (per curiam) (finding no          ________          due  process right  to judicial  hearing  prior to  adult trial),          cert. denied, 423 U.S. 852 (1975).   In order to "incorporate the          _____ ______          rehabilitative concept  of a juvenile  proceeding,"  S.  Rep. No.          1011, 93d  Cong., 2d Sess.  48 (1974), reprinted in  1974 U.S.C.-                                                 ____________          C.A.N.  5283, 5312, thereby  minimizing the involvement  of young          offenders in  the juvenile and  criminal justice systems,  id. at                                                                     ___          5285, in 1974  Congress substantially amended the  FJDA, see Pub.                                                                   ___          L. No. 93-415, 88 Stat. 1109, 1133-38 (1974) (codified as amended          at 18  U.S.C.    5031-42),  permitting adult trials  of juveniles          only after a  judicial hearing and determination  that "transfer"          for trial as an adult would serve the interests of justice.  Pub.          L. No. 93-415, Title V, Part A,   502, 88 Stat. at 1134 (codified          as amended at 18 U.S.C.   5032).                                          7          F.2d  1248, 1250  n.1  (5th  Cir.), cert.  denied,  493 U.S.  917                                              _____  ______          (1989).  Yet more to the  point, section 5032 permits the govern-          ment to  implement     again, on  mere allegation, without  prior          hearing  or judicial authorization    the mandatory "transfer" of          a recidivist juvenile offender  for trial as an adult.   See Pub.            __________                                             ___          L. No. 98-473, Title II, ch. XII,  Part A,   1201, 98 Stat. 1837,          2149-50  (1988).7  Given the breadth of Congress's consignment of          other "jurisdictional" determinations to the prosecutor's discre-          tion under the FJDA, it is not surprising that appellants cite no          case law directly  supporting their asserted right  to a pretrial          evidentiary hearing on  the district court's jurisdiction  to try          them as adults.8                                        ____________________               7It might be argued that the language of   5032 is ambiguous          on  the necessity  for  a  district court  hearing  prior to  the          mandatory "transfer" of  a recidivist juvenile.  See  18 U.S.C.                                                             ___          5032 (connector term "however"  follows provision for  "interests          of  justice"  transfer,  which  requires  hearing,  but  precedes          recidivism provision, which is silent as to hearing requirement).          Nevertheless,  the  legislative  history  makes  clear  that  the          recidivism provision was intended as an absolute exception to the          hearing requirement.  S. Rep. No. 225, 98th Cong., 1st Sess. 390-          91  (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3530-31 (recidi-                      ____________          vism transfer "mandatory" "upon motion of the government").                 8Appellants rely primarily on Cruz, 805 F.2d 1464, where the                                             ____          Eleventh Circuit noted  that, "once sufficient evidence  has been                                         ____          introduced  that would allow  a jury to  reasonably conclude that          the defendant's participation in a conspiracy continued after his          eighteenth birthday, then he may be  tried as an adult."  Id.  at                                                                    ___          1476 (emphasis added).  Appellants  interpret the word "once"  as          indicating a  temporal  requirement that  the  government  submit                        ________          sufficient  proof of  post-majority participation  before it  can                                                             ______          subject  them to  trial as  adults.   However, the  context makes          clear that the  Cruz court  was simply  evaluating the  jurisdic-                          ____          tional issue in light of the sufficiency of the evidence present-          ed at  trial, and that  it was addressing the  threshold require-             __  _____          ments for admitting  evidence of pre-majority conduct  in support          of  defendant's  conviction as  an  adult,  not for  purposes  of          establishing  jurisdiction to try  defendants as adults.   Id. at                        ____________ __ ___                          ___                                          8                    Our  interpretation comports  with  three basic  policy          concerns  as well.  First, neither  appellant was unfairly preju-          diced by the district court's decision to defer its determination          of the applicability of the FJDA  until trial.  Congress did  not          amend the  FJDA primarily in  order to confer  greater procedural          rights on juveniles  than are available to adults,  but to assure          that  the procedural rights afforded juveniles would be augmented                                                                  _________          to a level  comparable to those available to adults.  See S. Rep.                      __________                                ___          No. 1011,  93d Cong.,  2d Sess. 47-48  (1974), reprinted  in 1974                                                         _____________          U.S.C.C.A.N. 5283, 5312 (FJDA  simply codifies "safeguards funda-          mental to  our system of  justice," per In  re Gault, 387  U.S. 1                                                  ____________          (1967)).  In fact, alleged offenders between the ages of eighteen          and  twenty-one  at  indictment  often  receive  more  procedural                                                           ____          protections under the adult criminal justice system than would be          available under juvenile process.9                                        ____________________          1476-77.   Thus, evidence of the defendant's pre-majority conduct          was admissible on the ultimate issue of guilt, and not merely  to          show knowledge of the conspiracy.  See infra Pt. I.B.                                               ___ _____               Other cases  cited by  appellants, relying  on Cruz,  suffer                                                              ____          from the same misfocus and,  if anything, suggest that the appro-          priate vantage for determining such jurisdictional facts is after          all the evidence has been presented at trial.  See  United States                                                         ___  _____________          v. Maddox, 944 F.2d 1223,  1233-34 (6th Cir.) ("evidence was more             ______          than sufficient for  the jury to conclude . . ."),  cert. denied,                                                              _____ ______          112 S. Ct.  400, 610 (1991),  and cert. denied,  112 S. Ct.  948,                                        ___ _____ ______          1219, 1978, 2317  (1992); United States v. Harris,  944 F.2d 784,                                    _____________    ______          786  (10th Cir. 1991)  ("since the government  had presented evi-          dence from which the jury  could infer . . ."), cert. denied, 112                                                          _____ ______          S. Ct. 903  (1992); Gjonaj, 861 F.2d at  143-44 (finding evidence                              ______          sufficient for judge to sentence  defendant as adult after guilty          plea).               9For example, a  felony charge against an  adult presupposes          indictment by a grand jury, see  U.S. Const. amend. V, while  the                                      ___          FJDA permits a prosecutor to level an equivalent charge simply by                                          9                    Second, the proposed pretrial evidentiary hearing would          place an  unwarranted burden  on the  prosecution, especially  in          multi-defendant conspiracy  cases where  most alleged  coconspir-                                        ____________________          information, see 18  U.S.C.    5032.   An adult  accused has  the                       ___          fundamental  right to trial by jury.   See U.S. Const. amend. VI;                                                 ___          Fed. R.  Crim. P. 23.  But see 18 U.S.C.   5037 (juvenile verdict                                 ___ ___          by judge);  McKeiver v. Pennsylvania,  403 U.S.  528, 545  (1971)                      ________    ____________          (finding  no constitutional  right  to  jury  trial  in  juvenile          proceedings); United States v. Bent, 702 F.2d 210, 212 (11th Cir.                        _____________    ____          1983) (applying McKeiver to federal juvenile proceedings).                          ________               To  be sure, the  FJDA extends certain  pretrial protections          not  available under the adult criminal justice system, including          separate pretrial  incarceration at juvenile  facilities, see  18                                                                    ___          U.S.C.    5033, 5035, and a ban on pretrial publicity relating to          the offense, see id.   5038(e).  Assuming, without deciding, that                       ___ ___          these  protections confer a cognizable "right,"  see, e.g., In re                                                           ___  ____  _____          Sealed Case, 893 F.2d at 366-67 (in   5032 "transfer" proceeding,          ___________          denial of separate  incarceration or of protection  from pretrial          publicity is immediately appealable), appellants do not expressly          assert deprivation  of either of  these "rights" as a  ground for          their  jurisdictional challenge.   See United States  v. Zannino,                                             ___ _____________     _______          895  F.2d 1,  17 (1st  Cir.)  (issues raised  on appeal,  without          adequate  argumentation,  are deemed  waived), cert.  denied, 494                                                         ____   ______          U.S. 1092 (1990);  United States v. Baker, ___ F.3d ___, ___ (9th                             _____________    _____          Cir. 1993) [1993 U.S. App. LEXIS 27042, at *43 (9th Cir. Oct. 19,          1993)] (juvenile defendant waives challenge to incarceration with          adults unless objection raised in district court).               Appellants' reticence  is perhaps  understandable.   Driesse          was in state custody, hence never subjected to pretrial detention                 _____          on these federal charges.  Welch originally was released on bail,          but  bail  was   revoked  because  he  repeatedly   violated  the          conditions of release.  Although the district court ordered Welch          detained at a "corrections facility" pending trial, neither Welch          nor the  appellate record describes  the place or  precise condi-          tions of confinement, affording us no basis for assessing whether          the  FJDA was  violated.   Finally,  whatever plausible  argument          Welch might have  made about any harm  attending adult incarcera-          tion  would  be  considerably weakened  by  the  intervening bail          violation.                  Moreover, since    5038(e) expressly conditions the  ban on          pretrial publicity (even for defendants under age eighteen at the          time of  indictment) on  the prosecutor's  discretionary decision                                                     _____________          not to  "transfer," we perceive  no principled basis  for deeming          any attendant publicity sufficient reason  for foreclosing prose-          cutorial discretion over  appellants' "transfer."  See  18 U.S.C.                                                             ___            5038(e)  ("Unless  a juvenile  who  is  taken into  custody  is          prosecuted as an adult . . . . ").                                          10          ators  are adults.   Regardless  of the  precise burden  of proof          applicable at  the pretrial  evidentiary hearing,  the government          would  no doubt  be  expected  to  present  substantial  evidence          outlining  the alleged  conspiracy, thereby  prematurely "tipping          its hand" on  trial strategy and the testimony  of its witnesses.          See 18 U.S.C.   3500(a) (Jencks  Act); Fed. R. Crim. P. 16(a)(2).          ___          Furthermore,  we do  not think  a  pretrial hearing  would signi-          ficantly enhance the procedural protection of youthful defendants          already indicted by a grand jury.                    Finally, the issue of  district court "jurisdiction" in          cases implicating  the FJDA seems  to us sufficiently  similar to          other  fact-bound defenses  to  tip  the balance  in  favor of  a          determination by the trial jury.   See infra Pt. I.C.  Appellants                                             ___ _____          could only be  convicted as adults if they  "participated" in, or          "ratified" the conspiracy, after age eighteen.  See United States                                                          ___ _____________          v. Maddox, 944 F.2d  1223, 1233 (6th Cir.), cert. denied,  112 S.             ______                                   _____ ______          Ct. 400,  610 (1991),  and cert. denied,  112 S.  Ct. 948,  1219,                                 ___ _____ ______          1978, 2317 (1992).   A finding  of "participation" or  "ratifica-          tion"  ordinarily depends heavily  upon (i)  common-sense evalua-          tions of  the  youthful  defendants'  actions     viewed  in  the          context  of  the criminal  enterprise  and the  conduct  of their          coconspirators    and (ii) inferences as to the state  of mind of          the various  actors.  See  United States v. Lopez-Pena,  912 F.2d                                ___  _____________    __________          1536, 1537 (1st Cir.  1989) (conspiracy requires that  "the indi-          vidual defendant knew of the  agreement, had intent to agree, and          had intent to commit the substantive offense"), cert. denied, 111                                                          _____ ______                                          11          S. Ct.  2886 (1991).  These are matters especially suited to jury          resolution.  See  United States v. Piedrahita-Santiago,  931 F.2d                       ___  _____________    ___________________          127, 130 (1st  Cir. 1991) ("It is  the province of the  jury, not          this court, to determine the credibility of the witnesses."); cf.                                                                        ___          United States v. Passos-Paternina,  918 F.2d 979, 985 (1st  Cir.)          ______________   ________________          ("We defer, within reason,  to inferences formulated by  the jury          in light of its collective understanding of human behavior in the          circumstances revealed by  the evidence."), cert. denied,  111 S.                                                      _____ ______          Ct.  1637, 2808-09 (1991).10  Properly instructed in  the perfor-          mance of their  traditional tasks, trial juries  can be entrusted          to discriminate  between pre-majority and  post-majority conduct.          See, e.g.,  Cruz, 805 F.2d at  1476.  We  therefore conclude that          ___  ____   ____          the FJDA's language, structure, legislative history, and  related          policy considerations,  militate  against  requiring  a  pretrial          evidentiary hearing on jurisdiction.                                          ____________________               10In  fact, the FJDA expressly requires very similar eviden-          tiary  monitoring by the  jury once the  prosecutor's allegations          have led to  a youthful defendant's trial  as an adult.   After a          juvenile has been  transferred for trial as an  adult, whether by          transfer  hearing or  mandatory  process, see  supra  note 6  and                                                    ___  _____          accompanying text, unless the jury also convicts the accused of a                                                  ________          transferable  crime the accused is returned for disposition under          the FJDA.   See 18 U.S.C.   5032 (listing types of crimes permit-                      ___          ting  "transfer").   Even  the  FJDA  amendments of  1984,  which          conferred significant "transfer" discretion  upon the prosecutor,          kept these "return"  provisions in place on the  theory that jury          involvement,  after  factual corroboration  at trial,  provides a          valuable  case-by-case  assessment  of   the  appropriateness  of          juvenile process.   See S. Rep. No 225, 98th Cong., 1st Sess. 391                              ___          (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3531.                   ____________                                          12               B.  Severance.               B.  Severance.                   _________                    Appellants next contend that the district court commit-          ted  reversible error by denying  their motion for severance, see                                                                        ___          Fed. R.  Crim. P.  14, since (1)  the evidence against  their ten          adult  codefendants was  so voluminous,  in  comparison with  the          meager  evidence   against  appellants,  that   the  jury   would          indiscriminately  lump appellants  together with the  adults, and          (2) the government  was entitled to introduce  evidence of appel-          lants'  pre-majority  conduct  against  the  adult  codefendants,          whereas the FJDA prohibits, or severely limits, the admissibility          of such evidence against appellants.                    A  motion for  severance  is  committed  to  the  sound          discretion of the trial court, and  we review only for a manifest          abuse of discretion  resulting in a miscarriage of  justice.  See                                                                        ___          United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992).  In          _____________    __________          order to gain severance, a  defendant must make a "strong showing          [that]  substantial prejudice" would  result from a  joint trial.          See United States v. Barnett, 989 F.2d 546, 559 (1st Cir.), cert.          ___ _____________    _______                                _____          denied, 114  S. Ct.  148 (1993); United  States v.  Martinez, 922          ______                           ______________     ________          F.2d 914, 922 (1st Cir. 1991) (noting that "'prejudice means more          than just  a better  chance of acquittal  at a  separate trial'")          (citation  omitted).  Appellants  have not shown  especial preju-          dice.                    The  existence  of  stronger   evidence  against  their          codefendants did not entitle appellants to automatic severance on          grounds of evidentiary  spillover.  See United  States v. Cresta,                                              ___ ______________    ______                                          13          825 F.2d 538, 554-55 (1st Cir. 1987), cert. denied, 486 U.S. 1042                                                _____ ______          (1988).  Nor  does the relatively minor conspiratorial  role of a          particular  defendant normally preclude  a joint trial  with more          prominent codefendants.  See Martinez, 922 F.2d at 922.  Adequate                                   ___ ________          safeguards  are available to protect against undue prejudice from          evidentiary spillover in most  cases.  For example,  the district          court carefully cautioned the jury in the present case to consid-          er the evidence  against each individual defendant.   See Cresta,                                                                ___ ______          825 F.2d at 555.   Absent a contrary showing or  some evidence of          an extraordinary  impediment, we  will credit  the readiness  and          ability of  the trial  jury to abide  by cautionary  and limiting          instructions aimed at minimizing the mundane risks of evidentiary          spillover.   See United States  v. Figueroa, 976 F.2d  1446, 1452                       ___ _____________     ________          (1st Cir. 1992)  (citing United States v. Natanel,  938 F.2d 302,                                   _____________    _______          308 (1st Cir.  1991), cert. denied, 112 S. Ct. 986 (1992)), cert.                                _____ ______                          _____          denied, 113 S. Ct. 1346 (1993).          ______                    Next, appellants  argue  that  severance  was  required          because  evidence  of their  pre-majority conduct  was admissible          against  all their  codefendants, but  not against  them.   Since          prejudicial  evidentiary spillover  cannot  result from  evidence          directly admissible against all defendants, Figueroa, 976 F.2d at                                                      ________          1452 (citing United States v. Sabatino, 943 F.2d 94, 96 (1st Cir.                       _____________    ________          1991)), appellants  must establish  that evidence  of their  pre-          majority membership and  participation in the conspiracy  was not          directly admissible to support their convictions.                      Appellants  argue, relying on dicta in United States v.                                                           _____________                                          14          Spoone, 741 F.2d  680, 687-88 (4th Cir. 1984),  cert. denied, 469          ______                                          _____ ______          U.S. 1162  (1985), that use  of evidence of  pre-majority conduct          must be  limited as  urged by  appellants even though  cautionary          instructions are given.  In Spoone, the Fourth Circuit determined                                      ______          that  evidence of  pre-majority conduct  had not formed  the sole          basis for the defendant's conviction, and therefore that the FJDA          could  not have been  violated.  Id.   The jury  charge in Spoone                                           ___                       ______          instructed, inter alia, that  pre-majority conduct could  provide                      _____ ____          context for evaluating the defendant's knowledge of the conspira-                                                 _________          cy, as  an aid  in assessing  evidence of  his conduct  after age                                        ________ __  ___ _______  _____ ___          eighteen.  Id.          ________   ___                    We think the  better view is that adopted  in Cruz, 805                                                                  ____          F.2d 1464:  "once [the government] ha[s] established that certain          acts of  the offense  occurred after  the defendant's  eighteenth          birthday, the  entire case  may be tried  in accordance  with the          adult rules of procedure and evidence."  Id. at 1477.   See supra                                                   ___            ___ _____          note  8; see also  Doerr, 886 F.2d  at 969-70 (adopting  Cruz ap-                   ___ ____  _____                                 ____          proach).  We are not persuaded that the restrictions advocated by          appellants  would afford  significantly  greater protection  than          appropriate  cautionary and limiting instructions.   We therefore          hold that a criminal defendant's pre-majority conduct is admissi-          ble  on the  same  bases as  other evidence,  and does  not alone          compel severance of a youthful defendant's trial.               C.  Jury Instructions.               C.  Jury Instructions.                   _________________                    Appellants further  contend that  the instructions  did          not  properly  limit  jury consideration  of  their  pre-majority                                          15          conduct.   Although evidence  of their  pre-majority conduct  was          admissible against  appellants for  all purposes,  see Cruz,  805                                                             ___ ____          F.2d at 1477,  we reject any  proposed reliance on  Cruz for  the                                                              ____          proposition that the trial judge is the sole and final arbiter of          the threshold determination as to the sufficiency of the evidence          of post-majority  conduct, or that  further limiting instructions             ____          to  the jury are  unnecessary once the  evidentiary threshold has          been  met to  the satisfaction of  the trial  court.  See  id. at                                                                ___  ___          1476-77; see  also Doerr, 886  F.2d at 970 (once  the evidentiary                   ___  ____ _____          threshold has been met, the trial is "limited only by the Federal          Rules of Evidence").11    An age-of-majority-spanning  conspiracy          is somewhat analogous  to a criminal conspiracy that  spans a bar          date imposed by the statute of limitations.  See Maddox, 944 F.2d                                                       ___ ______          at 1233; Gjonaj, 861 F.2d at 144.  Although evidence of both pre-                   ______          and post-bar date conduct is fully admissible in such a case, the          jury nonetheless  must be  instructed to acquit  a defendant  who          withdrew from  the conspiracy  before the bar  date.   See United          ________                                               ___ ______          States v. Piva, 870  F.2d 753, 756-57 (1st  Cir. 1989); see  also          ______    ____                                          ___  ____          United States v. Juodakis, 834 F.2d 1099, 1102-04 (1st Cir. 1987)          _____________    ________          (per curiam).                    The  statute  of limitations  analog  is imperfect,  of          course.  The temporal demarcation under the FJDA is not identical                                        ____________________               11The  approach approved  in Cruz  and Doerr  appears to  be                                            ____      _____          based on Fed. R. Evid. 404(b),  which allows evidence of a defen-          dant's prior wrongful  acts on such issues as  motive and intent.          However,  in an  age-of-majority-spanning conspiracy,  the defen-          dant's pre-majority conduct is not merely extrinsic evidence of a          prior  wrongful act,  but an  integral component  of the  alleged          conspiracy for which he is on trial.                                           16          to a  statute-of-limitations bar  date, nor  does it  necessarily          follow  that appellants  could be  convicted  as "adults"  simply          because there was no evidence that they withdrew from the age-of-          majority-spanning conspiracy  prior to attaining  age eighteen.12          A  more apt  analogy for  FJDA  cases involving  age-of-majority-          spanning  conspiracies may  be  the contract  "ratification" doc-          trine, which provides that a minor legally incapable of contract-          ing may  nonetheless affirm  by his  post-majority conduct.   See                                                                        ___          Maddox, 944 F.2d at 1233  ("a person who does absolutely nothing"          ______          after age  of majority  cannot be held  liable as  adult) (citing          John D. Calamari  and Joseph M. Perillo, Contracts    8-4 (3d ed.                                                   _________          1987)).   We think  the Maddox analogy  better comports  with the                                  ______          fundamental principle that criminal liability is premised on some          discernible actus reus, be it  action or (in an appropriate case)                      _____ ____          intentional  inaction.   See  United States  v. Bishop,  469 F.2d                                   ___  _____________     ______          1337, 1348 (1st Cir. 1972) (Constitution prohibits punishment for          mere status) (citing  Powell v. Texas, 392 U.S.  514 (1968)); see                                ______    _____                         ___          generally 1 Wayne LaFave & Arthur Scott, Substantive Criminal Law          _________                                ________________________             3.2-.3 (1986).   Under the Maddox approach,  therefore, rather                                        ______                                        ____________________               12Statute-of-limitations  bar  dates serve  extrinsic  ends.          See, e.g., Toussie v. United  States, 397 U.S. 112, 114-15 (1970)          ___  ____  _______    ______________          (limitations  period protects  individuals  from charges  brought          after the  basic facts  have been obscured  by time,  and fosters          diligent law  enforcement).  On the other  hand, the "withdrawal"          defense  promotes the  reporting,  and  preemptive thwarting,  of          criminal conspiracies.  See Piva, 870 F.2d at 757.                                   ___ ____               By the same token, in some instances the FJDA decriminalizes                                                             ______________          pre-majority  conduct  by divesting  federal  courts of  criminal          ___          jurisdiction and establishing a separate  juvenile justice system          whose primary focus is on offender rehabilitation.  See 18 U.S.C.                                                              ___            5032;  see also S.  Rep. No. 1011, supra  note 6; In  re Sealed                   ___ ____                    _____          _____________          Case, 893 F.2d at 367.          ____                                          17          than face  conviction simply for  failing to "withdraw"  from the          age-of-majority-spanning  conspiracy   prior  to   attaining  age          eighteen, there could be no conviction unless the jury found that          appellants in some  manner "ratified" their participation  in the          conspiracy after attaining majority.13                    In all  events, whatever  the precise  contours of  the          "ratification" theory  in  the  context  of  an  age-of-majority-          spanning  conspiracy, the  instructions  in  this  case  required          significantly more post-majority conspiratorial  conduct than the          FJDA mandates.   The district  court instructed the jury  as fol-          lows:                    [T]he defendant's  juvenile acts  may not  be                    considered as  proof of his  participation in                    the  conspiracy unless  the jury  first finds                    that he participated in  the conspiracy after                    his  eighteenth  birthday. . . .    In  other                    words,  you can't  consider  the acts  before                            ___ _____  ________  ___ ____  ______                    their  eighteenth birthday  unless you  first                    _____  __________ ________  ______ ___  _____                    find beyond  a  reasonable  doubt  that  they                    ____ ______  _  __________  _____  ____  ____                    participated  in  the conspiracy  after  they                    ____________  __  ___ __________  _____  ____                    attained the age of eighteen years.                    ________ ___ ___ __ ________ _____          (Emphasis added.)   The  challenged  instruction effectively  re-          quired  the jury  to determine  whether  evidence of  appellants'          post-majority participation  in itself was sufficient  to support                                       __ ______          appellants'  convictions.   Similarly, under  the "moving  train"          theory,  knowing participation  in any  act in  furtherance of  a                                        ____________________               13Juries commonly are  called upon to make  similar distinc-          tions  in determining the  criminal liability of  codefendants as          accessories, a  task  which  requires  findings both  as  to  the          underlying  offense  and the  codefendants' association  with the          principal.  See, e.g., United States v. Ortiz, 966 F.2d 707, 711-                      ___  ____  _____________    _____          12 (1st Cir.  1992) (collecting cases), cert. denied,  113 S. Ct.                                                  _____ ______          1005 (1993).                                          18          conspiracy  entails full  conspiratorial liability.    See United                                                                 ___ ______          States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st  Cir.), cert.          ______    _______________                                   _____          denied, 492  U.S. 910 (1989);  United States v. Baines,  812 F.2d          ______                         _____________    ______          41, 42 (1st.  Cir. 1987).   Thus, the jury was  not left free  to          convict appellants based solely on an "act of juvenile delinquen-          cy," but only  if it  found post-majority  conduct sufficient  to                                      ____          establish  beyond a reasonable doubt that appellants participated          in the conspiracy alleged in the indictment.               D.   Sufficiency of the Evidence.                 D.   Sufficiency of the Evidence.                      ___________________________                    "[E]schewing  credibility  judgments  and  drawing  all          reasonable inferences in favor of  the verdict,"  we evaluate the          sufficiency of  the evidence with  a view to whether  the verdict          "draws its  essence from a  plausible reading of the  record" and          whether  the jury  rationally  could  have  determined  that  the          government  established  every  element  of  the charged  offense          beyond a reasonable doubt.  Sepulveda, No. 92-1362, slip op. at 7                                      _________          [___ F.3d at ___]; see  United States v. Clifford, 979  F.2d 896,                             ___  _____________    ________          897 (1st Cir.  1992) ("'Nor does the government  have to disprove          every reasonable hypothesis of  innocence.'") (citation omitted).          Appellants  question the sufficiency  of the evidence  on but one          element of the  offense    their voluntary  or "meaningful" post-          majority participation in the conspiracy.  We find no shortfall.                    No  less than five witnesses testified to overt conduct          by Driesse from which the jury reasonably could have found direct          participation  in the  Sepulveda conspiracy  following  his eigh-          teenth  birthday on  April 6,  1988.   In the  "summer of  1988,"                                          19          Driesse delivered  an ounce of  cocaine to the residence  of John          Rice;  after Rice complained to Edgar  Sepulveda that the cocaine          Driesse had  delivered was  underweight, Driesse  collected $1150          from Rice.  Daniel Santos accompanied Driesse  and the Sepulvedas          on a drug  run to Massachusetts in  the "summer of 1988,"  at the          culmination of which Driesse "threw [Santos]  the coke."  Driesse          later  admitted to  Rice that  he had  made another  drug  run to          Massachusetts  with codefendant Ernest  Langlois in late  1988 or          early 1989.  Moreover, Randall Vetrone and Norberto Perez  bought          cocaine  from Driesse  several  times  a  week  throughout  1989.          Finally, in April 1989, David Sepulveda referred Kurt Coriarty to          Driesse as a source of cocaine.                    Four  witnesses testified  to  overt conduct  by  Shane          Welch from which the jury reasonably could have inferred partici-          pation in  the conspiracy  following his  eighteenth birthday  on          November 20, 1989.  In late 1989  and early 1990, Santos, Vetrone          and Rice  purchased cocaine from  Welch, usually at  Edgar Sepul-          veda's residence, and  on some occasions Welch  himself conducted          these transactions.   On March 6, 1990, Welch  accompanied Santos          and the Sepulveda brothers on a drug run to Massachusetts for the          announced  purpose  of   replenishing  the  Sepulvedas'   cocaine          _________          inventory.  During  this run, when he discovered  they were under          surveillance by  local police,  Welch warned  Santos.   Detective          Vallante arrested Welch  after he stopped  Santos's car, and  the                                          20          cocaine was  seized.14   Following his  return to  New Hampshire,          Welch also served as a fledgling "enforcer" for Sepulveda, at one          time attempting to break down the door at the Vetrone residence.                    The  only  attack  appellants  mount against  all  this          evidence is that it is  incredible, a challenge foreclosed by the          jury's  credibility determination.   See United States  v. David,                                               ___ _____________     _____          940 F.2d 722,  730 (1st Cir. 1991).   Thus, there was  ample evi-          dence of  post-majority  participation  to  overcome  appellants'                                        ____________________               14Shane Welch  raises one separate  issue.  Pointing  to his          March  1990 state court  conviction in Massachusetts  for cocaine          possession, criminal conduct which the federal indictment alleges          as  an  overt  act  by  Welch in  furtherance  of  the  Sepulveda          conspiracy,  Welch argues that the federal prosecution was barred          by the Double  Jeopardy Clause of the United States Constitution.          As  primary authority,  he cites  Grady v.  Corbin, 495  U.S. 508                                            _____     ______          (1990),  in which the  Supreme Court stated  that double jeopardy          bars  a subsequent  prosecution "if,  to  establish an  essential          element of an offense  charged in that prosecution, [the  govern-          ment] will  prove conduct that  constitutes an offense  for which                            _______          the defendant has already been prosecuted."  Id. at 510 (emphasis                                                       ___          added).               Welch's argument fails for at  least two reasons.  First, it          seems entirely possible that Grady, which involved two successive                                       _____          state prosecutions, was not intended to override the longstanding          _____          "dual sovereign" doctrine,  which holds that  successive prosecu-          tions by federal and state governments normally do not  implicate          the Double Jeopardy  Clause.  See Heath v. Alabama,  474 U.S. 82,                                        ___ _____    _______          92-93  (1985) ("[A] single  act constitutes an  'offense' against          each sovereign whose  laws are violated by that  act.").  Second,          the Supreme  Court mooted the  entire matter in United  States v.                                                          ______________          Felix, 112 S.  Ct. 1377 (1992).  "[L]ong  antedating [Grady], and          _____                                                 _____          not questioned in [Grady], is  the rule that a substantive crime,                             _____          and a conspiracy to commit that crime, are not the 'same offense'          for  double  jeopardy  purposes," so  that  "prosecution  ... for          conspiracy, where certain  of the overt acts relied  upon ... are          based on  substantive offenses for  which the defendant  has been          previously  convicted, does  not  violate the  [Double  Jeopardy]          Clause."  Id.  at 1380, 1384.   Indeed, prior  to Felix, we  gave                    ___                                     _____          Grady the same gloss.  See United States v. Rivera-Feliciano, 930          _____                  ___ _____________    ________________          F.2d 951, 954-55 (1st Cir. 1991), cert. denied, 112 S.  Ct. 1676,                                            _____ ______          and cert. denied, 113  S. Ct. 221 (1992).  One  year after Felix,          ___ _____ ______                                           _____          the Supreme Court  explicitly overruled Grady.   United States v.                                                  _____    _____________          Dixon, 113 S. Ct. 2849, 2860 (1993).          _____                                          21          "mere bystander" defenses.          II.  Claims Made Exclusively by Driesse.15          II.  Claims Made Exclusively by Driesse.               __________________________________               A.   Coconspirator Statements.               A.   Coconspirator Statements.                    ________________________                    Driesse claims that the district court committed rever-          sible error by allowing the  government to introduce, over timely          objection, an inadmissible  hearsay statement.  James  Noe testi-          fied that he was told by Robert Labrecque, Driesse's cousin, that          Labrecque was selling cocaine for  Driesse in late 1988 and early                                        ___  _______          1989; that is, after Driesse reached age eighteen.  No reason was                         _____          assigned for  admitting the  hearsay statement  over the  Driesse          objection.  Moreover, Driesse contends that the government failed          to prove by a  preponderance of the evidence that Labrecque was a          "coconspirator,"  Fed.  R.  Evid.  801(d)(2)(E), whose  statement          would have  been admissible if  made "in furtherance of  the con-          spiracy."                    "[A]  [putative]  coconspirator's  statement,  standing                                                                   ________          alone, is insufficient to meet the preponderance standard of Rule          _____          801(d)(2)(E)";  the proponent of  the statement must  submit some          extrinsic  evidence   of  the  declarant's  involvement   in  the          conspiracy.  Sepulveda, No. 92-1362,  slip op. at 29-30 [___ F.3d                       _________          at ___].   There is  no such  extrinsic evidence  in the  record.          Labrecque's  statement was  the sole  source  of Noe's  knowledge                                          ____                                        ____________________               15We  need not  discuss  certain  other contentions  Driesse          raised in common with his  codefendants, the merits of which were          considered in Sepulveda, No. 92-1362, slip op. at 55 [___ F.3d at                        _________          ___], including his  challenges to the  bill of particulars,  see                                                                        ___          id. at 57-58, and the  government's closing arguments, see id. at          ___                                                    ___ ___          39-49.                                          22          about  Labrecque's complicity.  Beyond that, Noe simply testified          that Driesse and Labrecque were  "cousins," who lived in the same          apartment project,  and that  Noe had  observed Labrecque  "with"          Driesse on previous  occasions.  See United States  v. Gomez, 921                                           ___ _____________     _____          F.2d 378, 381 (1st Cir. 1991) (mere "association" does not estab-          lish conspiratorial involvement).   Although Noe sold  cocaine to                                                                         __          Labrecque for Labrecque's  "use, not for [re]selling,"  Noe never          observed Labrecque selling drugs, let alone doing so in Driesse's          company, or  "for" Driesse.  Although the  government argues that          the  trial court  was permitted  to  conclude that  it was  "more          likely   than   not"   that   Labrecque    was   an   "unindicted          coconspirator," except for the hearsay statement itself there was          no evidentiary basis, only conjecture, to support  such an infer-          ence.                    Although  admission  of  Noe's  hearsay  statement  was          error, we conclude  that the  error was  harmless.   See Fed.  R.                                                               ___          Crim.  P. 52(a).    No  less than  five  other witnesses  offered          unequivocal testimony with  respect to Driesse's active  involve-          ment in  the  conspiracy.   See  supra Section  I.D.   Thus,  the                                      ___  _____          Labrecque hearsay  statement was  merely cumulative,  and had  no          significant effect on the verdict.  See United States v. Dworken,                                              ___ _____________    _______          855 F.2d 12, 26 (1st Cir. 1988).16                                        ____________________               16Driesse asserts  that the government  laid an  evidentiary          "trap" for the  unwary defense team,  when it elicited  testimony          from Randall Vetrone on direct examination that he  had purchased          stolen  property previously.   The  government did  not go  on to          inquire into the identity of Vetrone's source.  On cross-examina-          tion  by counsel  for  one  of  Driesse's  codefendants,  Vetrone          testified  that he had  bought the  pilfered goods  from Driesse.                                          23               B.   "Missing Witness" Instruction.               B.   "Missing Witness" Instruction.                     ____________________________                    Driesse contends  that he  was entitled  to a  "missing          witness"  instruction, which  would have  permitted  the jury  to          infer, from  "'the failure of  a party to produce  available evi-          dence that would  help decide an issue, . . .  that the [missing]          evidence would [have been] unfavorable to the party to whom it is          available  or  whom it  would  normally be  expected  to favor.'"          United States  v. St. Michael's  Credit Union, 880 F.2d  579, 597          _____________     ___________________________          (1st Cir. 1989)  (citation omitted).  As the proponent of such an          instruction, Driesse was required to show that the absent witness          (Labrecque) would have  been (1) "favorably disposed"  to testify          in the government's  behalf by virtue of his  status or relation-          ship to the  parties, (2) "peculiarly  available" to the  govern-          ment, or (3)  within the government's "exclusive control."   Id.                 __                                                     ___          Driesse  asserted  that  Labrecque could  more  easily  have been          located by  the government  since he  was under the  probationary          supervision of the New Hampshire Department of Corrections.                    We  review  the  refusal to  give  a  "missing witness"                                        ____________________          Driesse  moved for  mistrial,  contending that  the  government's          "trap" evidenced prosecutorial misconduct,  which resulted in the          admission  of otherwise inadmissible evidence.  See Figueroa, 976                                                          ___ ________          F.2d  at 1453 ("other  crime" evidence generally  inadmissible to          show bad character or unrelated criminal activity); United States                                                              _____________          v. Eatherton, 519 F.2d 603,  611 (1st Cir.) (same), cert. denied,             _________                                        _____ ______          423  U.S. 987  (1975).    We find  no  evidence of  prosecutorial          misconduct in the government's anticipatory proffer.  The govern-          ment explains that  it divulged  the evidence  of Vetrone's  past          criminal activity in order to preempt the defense from impeaching          Vetrone  on cross-examination.   Given the reasonableness  of its          trial tactic, the  government cannot be faulted for the seemingly          irrelevant follow-up  question the defense  chose to put  to Vet-          rone.                                          24          instruction for  abuse of  discretion.   United States  v. Arias-                                                   _____________     ______          Santana, 964 F.2d  1262, 1268 (1st Cir. 1992).   Given the avail-          _______          able evidence that  Driesse and Labrecque were family members who          had resided  in the same  apartment project, Driesse can  make no          serious claim that Labrecque was naturally predisposed to testify          for the government.   Moreover, given the  familial relationship,          the  bare fact  that Labrecque  was a  state probationer  did not          establish that he was peculiarly available to the government, let                                __________          alone  unavailable to Driesse.   Indeed, the  government provided          the  defense with Labrecque's  two last-known addresses,  cf. St.                                                                    ___ ___          Michael's  Credit Union,  880  F.2d at  598 (upholding  denial of          _______________________          instruction  where  government allegedly  knew  missing witness's          whereabouts  during  trial),  attested  that he  was  not  in the          government's  control, and disavowed  any intention (or  need) to          call Labrecque as  a witness.17   In these circumstances,  absent          any evidence  that  Labrecque was  not  available to  his  cousin                                        ____________________               17As  noted, see supra Pt. II.A, Labrecque's testimony, even                            ___ _____          if favorable to the  government, would have been largely  cumula-          tive, giving rise to a plausible explanation for the government's          decision not  to investigate his whereabouts or  to call him as a          witness. United  States v. Johnson,  467 F.2d 804, 808  (1st Cir.                   ______________    _______          1972), cert. denied, 410 U.S. 909 (1973) ("No [adverse] inference                 _____ ______          is  permissible, however, where the unpresented evidence would be          merely cumulative ...."); United States v. Norris, 873 F.2d 1519,                                    _____________    ______          1522-23 (D.C.  Cir.) (trial  court may consider  all of  the cir-          cumstances  in  determining  entitlement   to  "missing  witness"          instruction,  including whether  the  government simply  bypassed          calling the  witness because  his testimony  "'would likely  have          been merely  cumulative or  corroborative'") (citation  omitted),          cert. denied, 493  U.S. 835 (1989).  Were it not for this common-          _____ ______          sense  approach,  the  government  could  be  held  presumptively          responsible for  failing to call  any person who might  have been                                                           _____          able to provide relevant testimony,  even though the evidence was          presented through some other witness.                                          25          Driesse, or  that the  government interfered  with any  effort to          locate or  produce Labrecque at  trial, the district  court acted          well within  its discretion  in denying  a "missing witness"  in-          struction.               C.   Sentencing.               C.   Sentencing.                    __________                    Finally, Driesse challenges the drug quantity  calcula-          tion recommended in the presentence report (PSR) and relied on by          the court at  sentencing.  The  PSR calculation was based  on the          trial  testimony of Norberto Perez that Driesse accompanied Perez          on "about 20" drug runs between 1987 and 1989, involving from one          kilogram to 113.4 grams of cocaine per trip.  The PSR assigned an          average  of 16 ounces per trip, resulting  in a total estimate of          9.09 kilos  (or  320 oz.).   Thus,  Driesse was  assigned a  base          offense level (BOL) of 32 (5-15 kilograms).                    Where the sentencing  court relies solely on  the rough                                                       ______          drug quantity estimates of a lay witness, expressed in terms of a          range, rote averaging is an  insufficiently reliable basis for  a          _____          supportable  drug quantity finding.  Sepulveda, No. 92-1362, slip                                               _________          op. at 69-75 [___ F.3d at ___].   Unlike the sentences imposed on          Driesse's codefendants, Tony Rood and William Wallace, which were          based on rough ranging  estimates not only of the number  of drug          runs but the cocaine quantity per trips, the only rough averaging          involved in the drug quantity  finding for the Driesse sentencing          was the wide ranging estimate  of the quantity of drugs per  trip          (4 ozs. to 1 kilogram).  Nevertheless, since the lowest estimated          quantity range (4 ozs.) per trip would yield a total drug quanti-                                          26          ty  of approximately 2.3  kilograms, dropping Driesse  well below          BOL 32,18 we vacate his sentence, and remand for resentencing, in          accordance  with our decision in  United States v. Sepulveda, ___                                            _____________    _________          F.3d ___, ___ (1st Cir. 1993).19                    The judgments of conviction entered against Christopher                    The judgments of conviction entered against Christopher                    _______________________________________________________          Driesse and Shane  Welch are affirmed.  The  sentence of Christo-          Driesse and Shane  Welch are affirmed.  The  sentence of Christo-          _____________________________________   _________________________          pher  Driesse is  vacated and  case No.  92-1370 is  remanded for          pher  Driesse is  vacated and  case No.  92-1370 is  remanded for          _________________________________________________________________          resentencing in accordance with this opinion.          resentencing in accordance with this opinion.          ____________________________________________                                        ____________________               18Driesse was  assigned an additional 1.146  kilograms apart          from the Perez testimony.  In any event, even with this addition-          al amount, the total drug quantity would be 3.446, well below the          5 kilogram threshold for BOL 32.               19All  other arguments raised by these appellants are either          dealt with by  reference in Sepulveda,      F.3d,       (1st Cir.                                      _________  ____        ___          1993) (No. 92-1362), or plainly meritless.                                          27
