

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-2035

                          UNITED STATES,
                            Appellee,

                                v.

            GEORGE BERRIOS, A/K/A ANTONIO CANDELARIO,
                      Defendant - Appellant.

                                           

No. 95-2036

                          UNITED STATES,
                            Appellee,

                                v.

                    MARIO MENDEZ, A/K/A PABLO,
                      Defendant - Appellant.

                                           

No. 95-2038

                          UNITED STATES,
                            Appellee,

                                v.

           PEDRO GONZALEZ, A/K/A FRANK CASTILLO-PEREZ,
                      Defendant - Appellant.

                                           

No. 97-1121

                          UNITED STATES,
                            Appellee,

                                v.

                     HANNOVER ALBERTO SEGURA,
                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]                                                                

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Godbold,* Senior Circuit Judge,                                                         

                 and Barbadoro,** District Judge.                                                          

                                           

     Malcolm   J.  Barach,  by  appointment  of  the  Court,  for                                   
appellant George Berr os.
     Jos  A. Espinosa,  with whom Paul F. Murphy  and MacDonald &amp;                                                                           
Murphy were on brief for appellant Mario M ndez.                
     Paul J. Garrity,  by appointment of the Court, for appellant                              
Pedro Gonz lez.
     Karl R.D. Suchecki, by appointment  of the Court, with  whom                                 
Jennifer  Petersen  and Petersen  &amp;  Suchecki were  on  brief for                                                       
appellant Hannover Alberto Segura.
     William  F.  Sinnott,  Assistant  U.S. Attorney,  with  whom                                   
Donald K.  Stern,  United  States  Attorney,  was  on  brief  for                          
appellee.

                                           

                         January 6, 1998
                                           

                                                  

*  Of the Eleventh Circuit, sitting by designation.

**  Of the District of New Hampshire, sitting by designation.

                               -2-

          GODBOLD, Senior Circuit Judge.  This appeal arises from                    GODBOLD, Senior Circuit Judge.                                                 

the  conviction of four defendants, Mario M ndez, Pedro Gonz lez,

George Berr os, and  Hannover Alberto Segura of  various offenses

relating to possession and distribution of heroin.  Their arrests

and  convictions were  the result  of an extended  undercover and

surveillance  operation  conducted  by   law  enforcement  agents

seeking to  discover the source  of an increased heroin  trade in

Portland, Maine.   Each defendant was convicted  of participating

in a  conspiracy to  possess  and distribute  heroin and  various

other crimes.   They  appeal, questioning  their convictions  and

their sentences.  We AFFIRM the convictions and sentences.

                         FACTUAL SUMMARY                                   FACTUAL SUMMARY

          The  following  factual  synopsis  summarizes  evidence

introduced at trial.   The facts  are resolved in the  light most

favorable to  the verdict and  consistent with the record,  as is

required by our  standard of  review in  an appeal  from a  final

judgment of  conviction. U.S.  v. Maraj, 947  F.2d 520,  522 (1st                                                 

Cir. 1991).

          Between July 8,  1994 and August 23,  1994, Agent Scott

Pelletier of  the Maine Drug  Enforcement Agency engaged  in four

heroin transactions  with a man  named Pablo, later proved  to be

Mario M ndez.  Pelletier had been introduced to Pablo by Lawrence

Freeman,  a   cooperating  government  informant   familiar  with

regional drug trade.  Each of the four transactions took place in

Lowell, Massachusetts,  where all  four defendants  resided.   In

each transaction Pelletier  purchased between 50 and  500 bags of

                               -3-

heroin  from Pablo.   During  the course  of these  transactions,

Pelletier saw Gonz lez accompanying  and assisting M ndez several

times and witnessed Segura conducting counter-surveillance at two

different  locations  on  July  8,   1994.    After  the   fourth

transaction between Pelletier and  M ndez, which took place at  a

residence located  at 36  Park Street,  law enforcement  officers

began  arresting individuals involved.  Gonz lez was found hiding

near the Merrimack River, and M ndez was arrested outside 36 Park

Street, later shown to be the location of the heroin "store" that

the conspiracy operated.

          The  police  then  executed a  search  warrant  for 173

University  Avenue,  also  in Lowell,  Massachusetts.    Based on

extensive  surveillance   and  investigation  the   officers  had

identified numerous phone  calls between the residence  of M ndez

and  173 University  Avenue and  between 36  Park Street  and 173

University.   Upon entering  the apartment  they observed  Segura

running from  the bathroom  where plastic  bags containing  white

powder were going  down the toilet.  Also,  within 173 University

Avenue, the officers  seized numerous items of  drug distribution

paraphernalia, including scales, sieves, and a "No Way Out" stamp

used for labeling the type  of heroin purchased by Pelletier from

M ndez.   They also found a large amount  of cash, 107.6 grams of

crack cocaine and a loaded .357 Magnum handgun.

          Police next executed  a search warrant  at 205 and  203

University  Avenue  where  they  arrested   George  Berr os,  the

resident.   There the  officers seized  large amounts  of heroin,

                               -4-

crack  cocaine, and  various  items  identified  as  distribution

paraphernalia  and  found  a notebook  containing  the  telephone

number for 173 University Avenue.

          Other  evidence  at  trial  included the  testimony  of

Christopher  Coughlin, who admitted  purchasing heroin  and crack

from  the defendants.  Coughlin identified  M ndez  as Pablo  and

Gonz lez as a man who  participated in the transactions but whose

name he did not know.

           After  a nineteen  day  trial,  the  jury  returned  a

verdict convicting each  defendant of various counts  of the nine

count  indictment.   All  appellants were  convicted of  Count I,

which  charged  that   the  defendants  had  participated   in  a

conspiracy to possess with intent to distribute and to distribute

heroin in violation  of 21 U.S.C.    846.  After  considering the

presentencing  report of  probation  officers,  as  well  as  the

objections  of both  parties to  the  report, the  district court

sentenced the four defendant to various prison terms ranging from

84 months for Berr os to 151 months for M ndez.

                            DISCUSSION                                      DISCUSSION

          We  have considered the arguments of each defendant and

find no error in their convictions or sentences.  Accordingly, we

affirm.   Because each  individual raises different  and numerous

issues and  each is  represented by  different  counsel, we  will

address  the contentions of  each defendant separately  with some

necessary repetition.

                            I.  M ndez

                               -5-

          M ndez  was convicted  of  Counts  I-V,  consisting  of

various  charges relating to possession and conspiracy to possess

heroin  and  cocaine with  the  intent  to  distribute.   He  was

sentenced  to  151  months  for  each  conviction  to  be  served

concurrently.     The  sentence   was  the   result  of   several

enhancements  which M ndez  contests  and a  significant downward

departure.  The  district court explained the  downward departure

by noting  that the lengthy  sentences for possession  of cocaine

base  (crack)   were  unjustified  because  the   conspiracy  was

primarily one to distribute heroin  rather than crack.  The court

found that, by including the amount of confiscated  crack cocaine

in the sentencing calculation, the sentence of each defendant was

increased by as much as six  levels.  The court acknowledged that

its  reason could  be  construed  as  a  discouraged  ground  for

departure but found  that the case fell  out of the  heartland of

prescribed  conduct, thus  warranting departure.   This  downward

departure is not  questioned by the government;  therefore, we do

not reach whether it  was proper.  The  departure resulted in  an

offense  level of 35  for M ndez.  Based  on his criminal history

category he received a 151 month sentence.

          We affirm M ndez's convictions and sentences.

             A.  Testimony of defense witness Fortin

          M ndez contends that his  conviction should be reversed

because he was precluded  from offering the testimony  of Loretta

Fortin.  The essence of her testimony would have been that M ndez

was not the "Pablo" she was  introduced to during a drug sale  in

                               -6-

June of 1994.   Furthermore, M ndez called Fortin  to discuss her

meeting  with Special  Agent  Connick in  August of  1994, during

which  she  identified  the photograph  of  another  defendant as

Pablo.   The relevancy  of this testimony  is that  an individual

named Pablo  was the  supposed leader of  the conspiracy  and the

dealer with  whom the  government initially  dealt.   Differences

existed as to which member  of the conspiracy was actually Pablo,

but several witnesses testified that M ndez was in fact Pablo and

that M ndez carried a beeper with the number belonging to Pablo.

          The  substance of  Loretta Fortin's  proposed testimony

was that she had one meeting  with Pablo in which he entered  the

back  seat  of her  car while  she  remained in  the front.   Her

husband introduced  the man as  Pablo, and they conducted  a drug

transaction.  Fortin  was willing to testify that  M ndez was not

the Pablo that  entered her car and that she selected a different

defendant as Pablo  from police photographs.  The  court excluded

this testimony because  it was based on  the inadmissable hearsay

of the  introduction of  Pablo by her  husband.   M ndez contends

that  this  exclusion  was  erroneous  because  Federal  Rule  of

Evidence 801(d)(1)(c) provides that if a witness is available for

cross examination,  prior statements  of  identification are  not

hearsay.   This assertion  misses the  point.   Fortin's proposed

testimony about her  husband's introduction of Pablo  created the

hearsay problem, not her prior identification statements to Agent

Connick.  To  make her testimony  credible she had to  admit that

her  knowledge  of Pablo's  identity  was  based on  the  hearsay

                               -7-

statement of her husband - "this is Pablo."

          By  echoing   her  husband's  introduction   of  Pablo,

Fortin's proposed  testimony meets the prerequisites  of hearsay.

The  introduction  of  Pablo  is  a statement  not  made  by  the

declarant in testimony  offered to prove the truth  of the matter

asserted.    For Loretta  Fortin's  testimony to  be  tenable the

statement made by her  husband must have been  true.  Because  we

have  no  way  of  verifying that  Mr.  Fortin  was  sufficiently

familiar with Pablo to identify him to Mrs. Fortin, her testimony

about Pablo is classic hearsay and was properly excluded.

          Accordingly,  the  district   court  did  not  err   in

disallowing  Fortin's testimony on hearsay grounds.  Moreover, if

error, it would have been harmless.  Even if the introduction was

not hearsay, given  Fortin's limited interaction with  Pablo, the

weight  of her  testimony  could  not  overcome  the  substantial

testimony of other  credible witnesses who had more  contact with

M ndez/Pablo and  who testified  that M ndez  was in  fact Pablo.

See U.S. v. Southard,  700 F.2d 1, 21  (1st Cir. 1983)  (harmless                              

error  to improperly exclude admissible evidence as hearsay where

substantial evidence existed to convict defendant).

       B.  M ndez' sentence was based on acquitted conduct

          M ndez also challenges  the fact that his  sentence was

based  in part  on acquitted  conduct.  Specifically,  he asserts

that the crack cocaine seized  by the officers during the arrests

should not have  been considered for sentencing  purposes because

he   was  acquitted  on   all  counts  involving   possession  or

                               -8-

distribution of cocaine.  This  assertion has no merit because "a

jury's verdict of acquittal does not prevent the sentencing court

from considering conduct underlying the acquitted charge, so long

as  that  conduct has  been  proved  by  a preponderance  of  the

evidence."  U.S. v. Watts, 117 S. Ct. 633, 638 (1997).                                   

               C.  Enhancement of M ndez' sentence

            I.  M ndez' role as an organizer or leader                                                                

          The evidence  was not  insufficient to support  M ndez'

four-level  enhancement  as   an  organizer  or  leader   of  the

conspiracy as provided  by U.S.S.G    3B1.1(a).   Evidence showed

that M ndez was always the person contacted when heroin was to be

purchased,  and that  he always  returned  pager calls.   He  set

prices  and   determined  the  location   of  the   transactions.

Witnesses testified  that it  appeared that  men who  accompanied

M ndez were his  subordinates and that he  hired a person  to man

the heroin "store" at 36 Park Street from 9:00 a.m. to  6:00 p.m.

daily.  Other evidence offered by the government in its objection

to the  presentence report tended  to suggest that M ndez  was in

fact  the leader of  a conspiracy that consisted  of five or more

individuals.

          We will not  reverse a district court's finding of fact

regarding  the  role  of  the  defendant  unless  it  is  clearly

erroneous or based  on a mistake of  law.  U.S. v. Cali,  87 F.3d                                                                 

571,  574 (1st  Cir.  1996).   Based  on  the extensive  evidence

offered at  trial and to the sentencing  court that M ndez was in

fact  an  organizer  and  a  leader, we  hold  that  the  court's

                               -9-

sentencing was not clearly erroneous.

         ii.  Transacting of drug sales in a school zone                                                                  

          M ndez   questions   his  one-level   enhancement   for

transacting a  drug sale  in a  school zone  on  the ground  that

evidence of the proximity of a school to any drug transaction was

not introduced at trial.  However, the record indicates that such

evidence was  introduced at  the sentencing hearing  and was  not

objected to by any defendant.  The evidence supporting the school

zone  enhancement consisted  of an  affidavit  signed by  Special

Agent Bruce  Tavers stating  that the  drug transactions  at Fort

Hill Park in Lowell, Massachusetts took place within one thousand

feet of a junior high school.

          At a sentencing hearing the court may consider evidence

that would  be inadmissable  at trial so  long as  the sentencing

court determines that the  evidence has a "sufficient  indicia of

reliability  to support its probable accuracy."  U.S. v. Tardiff,                                                                          

969  F.2d 1283,  1287 (1st Cir.  1992).   The affidavit of  a law

enforcement   officer  familiar  with  the  locale  of  the  drug

transaction and  the  surrounding area  is sufficiently  reliable

that a court  can accept it as evidence  for sentencing purposes.

M ndez  did  not object to  this evidence, and  we find no  plain

error.  The  affidavit was properly admitted to  support the one-

level school zone enhancement.

           iii.  Codefendant's possession of a firearm                                                                

          M ndez'  two-level  enhancement  for  possession  of  a

firearm during the  drug offense was not error  although he never

                               -10-

actually  possessed  or  used  a  gun  during  any  of  the  drug

transactions.  He  was arrested at a different  locale from where

the gun was found,  but evidence  showed that he was seen exiting

the  residence where  the gun  was found,  that he had  made many

calls  to this residence, that the residents were coconspirators,

and  that the  residence was  a  center for  the drug  operation.

These  facts are  sufficient  for  the  enhancement  because  the

sentencing guidelines require  only that a gun  be present during

some  portion of  an ongoing crime.  See U.S.S.G.    2D1.1(b)(1),                                                  

commentary at  n.3.  Because  the defendants were convicted  of a                    

continuing conspiracy the firearm was present during the crime.

          Once  the   presence   of  a   weapon  is   established

enhancement is  proper unless the  defendant demonstrates special

circumstances that show a clear improbability that the weapon was

connected to the drug  offense.  U.S. v. Lagasse, 87  F.3d 18, 22                                                          

(1st Cir. 1996).   The government offered proof that the  gun was

present during  the drug  conspiracy, and  the defendant  did not

offer  any special circumstances  that would make  the connection

between   the  gun  and  the  crime  improbable;  therefore,  the

enhancement was proper.1

                                                  

1  M ndez mentions Bailey v. U.S., 116 S. Ct. 501,  508-9 (1995),                                           
as authority that  the enhancement was  improper, but Bailey  has                                                                      
been  construed as not affecting sentencing enhancements based on
the possession of firearms during  certain offenses.  See U.S. v.                                                                        
Gary, 74 F.3d 304,  317 n.11 (1st Cir.), cert denied,  116 S. Ct.                                                              
2567 (1996).  Bailey only restricted convictions under  18 U.S.C.                              
   924(c)(1)  to  those  instances  where  a  defendant  actively
employed a firearm during the offense. Bailey, 116 S. Ct. at 508-                                                       
9(recognizing that sentencing guidelines may provide enhancements
for mere possession of a firearm during other offenses).

                               -11-

                          II.  Gonz lez

          Pedro Gonz lez  was convicted of  Counts I,  IV, and  V

consisting  of   various  charges  relating  to   possession  and

conspiracy to possess  heroin with intent to distribute.   He was

sentenced to  135 months  concurrent for  each  conviction.   His

original  sentence was calculated  by his being  held responsible

for  113.7  grams of  crack  cocaine  and  307 grams  of  heroin,

resulting  in a base  offense level of  33.  He was  then given a

two-level adjustment for  obstruction of justice for  providing a

false name and  personal history and a  two-level enhancement for

possession  of a  firearm  during  a  drug  trafficking  offense,

resulting  in a  total offense level  of 37.   The district court

departed    downward  four  levels  because  it  found  that  the

conspiracy  was primarily for  the distribution of  heroin rather

than crack  cocaine.   Because he found  that the  crack offenses

were  outside   the  heartland  offenses  under   the  applicable

guideline, he granted a  four-level downward departure, resulting

in a new  base offense level of  33.  After the  court considered

his criminal history category, he  was sentenced to 108 months in

prison.  We affirm his sentence.

              A. Obstruction of justice enhancement

          Gonz lez contends that  he did not deserve  a two-level

enhancement  for   obstruction  of  justice  because   the  false

statements  he  made concerning  his identity  did not  amount to

materially false  information as  required by  U.S.S.G.    3C1.1.

Section  3C1.1  provides   that  a  two  level   enhancement  for

                               -12-

obstruction  is  proper  where a  defendant  provides "materially

false information" to a judge, magistrate or a probation officer.

U.S.S.G.    3C1.1, commentary at  n.3(f)&amp;(h).  For information to                                       

be material it need only have  the potential to affect the  issue

under determination, including incarceration period, condition of

release, or whether  the wrongful conduct  has been mitigated  in

some way. U.S.S.G.   3C1.1, commentary at n.5; U.S. v. Kelley, 76                                                                       

F.3d 436, 441 (1st Cir. 1996).

          By offering  a false name, date of  birth, and personal

history throughout the trial and during sentencing Gonz lez hid a

prior conviction,  his age, his  residence, and the fact  that he

was  seeking to defraud immigration officials by participating in

a sham  marriage for the  purpose of obtaining citizenship.   The

substance and nature of these misrepresentations are material for

their potential to affect sentencing determinations.  Because the

falsehoods "could have  impacted the decisions of  the sentencing

court" the two-level  enhancement for obstruction of  justice was

proper.  Kelley, 76 F.3d at 441.                         

    B. Failure to prove the substance found was crack cocaine

          The government  did not fail  to sustain its  burden of

proving  that the substance  confiscated from the  conspiracy was

actually  crack cocaine rather  than some other  form of cocaine.

Gonz lez did  not argue at trial that the substance may have been

some other form of cocaine than crack, thus we would have to find

plain  error.   We cannot  find  plain error  unless the  desired

factual  finding is  the  only one  rationally  supported by  the

                               -13-

record below. See U.S. v.  Olivier-D az, 13 F.3d 1, 12  (1st Cir.                                                 

1993).    Gonz lez did  not  offer  any  evidence to  combat  the

government' assertion that the substance  was crack.  Only if the

record clearly  showed  that the  substance could  not have  been

crack would we be justified in finding plain error.  Id.  Because                                                                 

the record supports  the district court's finding  for sentencing

purposes, there was no plain error.

              C.  Ineffective assistance of counsel

          Nothing in the record supports Gonz lez' assertion that

he was denied  effective assistance of counsel  when his attorney

advised  him that  he  could  not receive  a  lesser sentence  by

pleading guilty  to the crime.   "We have held  with a regularity

bordering  on   the  monotonous  that   fact-specific  claims  of

ineffective assistance cannot  make their debut on  direct review

of    criminal  convictions,  but,  rather,  must  originally  be

presented to,  and acted upon by, the trial  court."  See U.S. v.                                                                        

Mala, 7 F.3d 1058,  1062-63 (1st Cir  1993); U.S. v. McGill,  952                                                                      

F.2d 16, 19 (1st Cir. 1991).

            Since  claims  of  ineffective assistance
            involve a binary  analysis--the defendant
            must   show,     first,  that   counsel's
            performance      was     constitutionally
            deficient   and,   second,     that   the
            deficient   performance  prejudiced   the
            defense,  such  claims  typically require
            the  resolution  of factual  issues  that
            cannot  efficaciously be addressed in the
            first instance by  an appellate tribunal.
            In addition,  the  trial judge, by reason
            of his  familiarity  with  the  case,  is
            usually in the   best position to  assess
            both   the    quality   of    the   legal
            representation afforded  to the defendant
            in the  district court and the  impact of

                               -14-

            any  shortfall in  that   representation.
            Under ideal  circumstances, the  court of
            appeals should have   the benefit of this
            evaluation;    elsewise,  the  court,  in
            effect, may be playing  blindman's buff.

Mala,  7 F.3d  at 1062-63  (citation  omitted).   This court  has              

dismissed without  prejudice portions of an appeal relating to an

ineffective  assistance claim  and  suggested that  the defendant

should litigate such a claim through the medium of an application

for post-conviction relief.  See  Mala, 7 F.3d at 1063.   Because                                                

we have no factual record upon which to judge Gonz lez' claims of

ineffective assistance, we reject this  claim for now and suggest

that the  proper forum for  his claim is through  application for

post-conviction relief.

                          III.  Berr os

          George Berr os was convicted  of Counts I, VI, and  VII

consisting  of  various  charges   relating  to  possession   and

conspiracy  to  possess   heroin  and  cocaine  with   intent  to

distribute.   He was  sentenced to 84  months concurrently.   His

original sentence was  calculated by holding him  responsible for

26.08  grams of  crack  cocaine  and 307  grams  of heroin  which

resulted in a base offense level of 30.  He was then given a two-

level adjustment for obstruction of justice for providing a false

name and personal history, resulting  in a total offense level of

32.   The  court then  departed downward  between three  and four

levels  based on  reasoning discussed  previously concerning  the

nature  of the conspiracy.   After consideration  of his criminal

history category, Berr os was sentenced to 84 months.

                               -15-

          Berr os questions both his conviction and sentence.  We

affirm both.

                 A.  Sufficiency of the evidence

          Berr os   argues  that   the  evidence   presented  was

insufficient to sustain his  conviction for conspiracy.  He  says

that the government presented no  evidence that he assented to be

a part  of the  conspiracy or participated  in the  conspiracy to

distribute  heroin.   We  customarily  must  decide  whether  the

evidence,    considered  in  the  light  most  favorable  to  the

government  -  "a perspective  that  requires  us to  draw  every

plausible inference in line with the verdict and to resolve every

credibility  conflict  in the  same  fashion"  -  would  allow  a

rational jury to  find that guilt was proved  beyond a reasonable

doubt.  U.S. v. Santiago, 83 F.3d 20, 23 (1st Cir. 1996).                                  

          Sufficient evidence existed  for the jury to  find that

Berr os was a member of the conspiracy.  Police officers observed

him carrying  several bags of  heroin and found large  amounts of

drugs   and   distribution   paraphernalia   at  his   residence.

Furthermore,  the sentencing  court found  that  Berr os was  the

supplier  of heroin  to M ndez  and the  other conspirators.   We

reject  Berr os' contention that the  evidence showed only that a

buyer-seller  relationship  rather   than  a  conspiracy  existed

between him and M ndez.

          Whether a true  conspiracy exists turns on  whether the

seller knew that  the buyer was reselling the  drugs and intended

to  facilitate  those  resales.   Santiago,  83  F.3d  at  23-24.                                                    

                               -16-

Therefore,  knowledge   and  intent   are  the  touchstones   for

sufficiently  proving a  conspiracy.    The government  presented

sufficient evidence to show that Berr os knew that M ndez and his

associates were reselling the heroin  and that he intended to aid

these transactions  by supplying large  amounts of heroin  to the

conspiracy.  Evidence  of Berr os' involvement in  the conspiracy

was sufficient for a reasonable jury to convict.

              B.  Obstruction of justice enhancement

          Much like appellant  Gonz lez, Berr os challenges  that

portion  of his sentence  resulting from a  two-level enhancement

for  obstruction  of  justice.    He  contends  that   the  false

information he provided  to the government  was not material  and

did  not significantly  impede  investigation or  prosecution  as

required by  the guidelines for an obstruction enhancement.  Once

again  we reject  this argument.   Berr os  not only  presented a

false  name to the magistrate judge and district court throughout

trial, but he hid  the status of  his citizenship by claiming  to

come  from Puerto  Rico.   By  hiding his  true identity  Berr os

concealed that he had previously been arrested by the Immigration

and Naturalization  Service in 1991  and had  fled after  posting

bail.

          For  information to be  material it need  only have the

potential  to  affect  an issue  under  determination,  including

incarceration  period,  condition  of  release,  or  whether  the

wrongful conduct  has  been mitigated  in  some way.  U.S.S.G.   

3C1.1, commentary at n.5; U.S. v.  Kelley, 76 F.3d 436, 441  (1st                                                   

                               -17-

Cir.  1996).   Giving a  false identity  and  pretending to  be a

citizen of  this country, as  well as concealing facts  that made

Berr os a known flight risk, could have affected some issue under

determination by the court, including bail.  Although he provided

his  real   identity  to  the  probation  officer  prior  to  the

preparation  of  the  presentencing  report  and  the  sentencing

hearing, Berr os  had participated  in an  entire criminal  trial

under a false  name and status, which amounted  to an obstruction

of justice.

    C.  Sentencing Guidelines and the equal protection clause

          Berr os  contends that the court enforced "a vague law"

when it refused to treat crack cocaine as equal to powder cocaine

for sentencing purposes.  Berr os noted that  the U.S. Sentencing

Commission has prepared a report demonstrating the disparity that

exists between the  sentencing guidelines for powder  cocaine and

crack  cocaine.   We  are bound  by the  prior decisions  of this

circuit which  have rejected this  argument.  See, e.g.,  U.S. v.                                                                        

Andrade, 94 F.3d  9, 14-15 (1st Cir. 1996);  U.S. v. Singleterry,                                                                          

29 F.3d  733, 739-41 (1st Cir. 1994).  Until the en banc court of

this circuit, the U.S. Supreme Court, or Congress  itself accepts

this assertion of disparity and finds it untenable, challenges to

the  sentencing  guidelines  based   on  the  disparity   between

sentences for crack cocaine  and powder cocaine will continue  to

fail.  See  Irving v. U.S., 49  F.3d 830, 833-4 (1st  Cir. 1995);                                    

U.S. v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991).                       

                           IV.  Segura

                               -18-

          Segura  was convicted  by a  jury  of Counts  I and  II

consisting  of   various  charges  relating  to   possession  and

conspiracy  to  possess heroin  and  cocaine with  the  intent to

distribute.  He  was sentenced to 108 months  for each conviction

concurrently.   His original  sentence was calculated  by holding

him responsible for 113.7 grams of crack cocaine and 307 grams of

heroin,  resulting in a  base offense level  of 32.   He was then

given  a one-level  adjustment for  transacting drug  sales in  a

school  zone and  a two  level  enhancement for  possession of  a

firearm during  the offense,   this resulting in a  total offense

level of 35.  The court then departed downward  four levels based

on the  reasoning discussed  above concerning  the nature of  the

conspiracy.     After  consideration  of   his  criminal  history

category, Segura was sentenced to 108.

          He challenges his conviction and sentence and we affirm

both.

                 A.  Sufficiency of the evidence

          Segura maintains that  the evidence presented at  trial

was insufficient to establish that he knowingly and intentionally

possessed heroin with the intent to distribute it or conspired to

do so.   In  considering whether  sufficient evidence to  convict

exists, we must consider the evidence in the light most favorable

to the  verdict and  reverse only  if no rational  trier of  fact

could have found  him guilty.  U.S.  v. Santiago, 83 F.3d  20, 23                                                          

(1st Cir. 1996).  The fact that the entire case against Segura is

based  on circumstantial,  rather than  direct,  evidence has  no

                               -19-

bearing  on  sufficiency;  both  types  of  evidence  provide  an

adequate basis for conviction.  See  U.S. v. Valerio, 48 F.3d 58,                                                              

63 (1st Cir. 1995).

           The government presented  two pieces of evidence  that

tended to link Segura to the conspiracy.  First was the testimony

of Agent Scott  Pelletier of the  Maine Drug Enforcement  Agency,

who  identified  Segura   as  the  person  engaged   in  counter-

surveillance  during at  least  one  of  the  drug  transactions.

Pelletier  was the  undercover agent  who  participated in  these

transactions, and his testimony about the possibility of counter-

surveillance was  corroborated by a  videotape that showed  a car

suspiciously  circling the area  where the drug  transaction took

place.

          Second  was testimony  of officers  on  the scene  when

Segura  and  others  were  arrested  at  173  University  Avenue.

Officers testified that they saw Segura running from the bathroom

and   heard  the  toilet  flushing  and  Inspector  Robert  Reyes

testified that when he  ran into the bathroom he saw plastic bags

containing a white  powdery substance go down the  toilet.  After

Segura and others were arrested the police found  drugs, numerous

items  of distribution paraphernalia and  a loaded .357 Magnum at

the scene.

           Taken together,  Pelletier's identification  of Segura

as  the counter-surveillance man  and Reyes' testimony  about the

toilet were sufficient  to convict.  Construing this  evidence in

favor of  the government,  Segura's presence at  two of  the drug

                               -20-

transactions,  his  presence  at  what appears  to  be  the  drug

conspiracy's center of operations, and his attempt to  dispose of

evidence  of  the conspiracy,  taken  together show  that  he had

knowledge of the conspiracy and  that he intended to  participate

in it.   See U.S.  v. Santiago, 83  F.3d 20,  23 (1st cir.  1996)                                        

(knowledge and intent are touchstones of conspiracy  conviction).

We  cannot say  that  no  reasonable jury  could  have found  him

guilty.

                      B.  Segura's sentence

           I.  A codefendant's possession of a firearm                                                                

          Segura, like M ndez,  contends that he should  not have

received  a two-level  enhancement for  possession  of a  firearm

during  the drug offense  because he never  actually possessed or

used  a gun.  He was arrested  at the residence where the gun was

found, and evidence existed that this residence was the center of

operations  for the drug conspiracy.  These facts are sufficient.

The  sentencing guidelines  require only  that a  gun be  present

during  some  portion  of  an  ongoing crime.    See  U.S.S.G.                                                                 

2D1.1(b)(1),  commentary  at  n.3.  Because  the defendants  were                                  

convicted of  a continuing  conspiracy, the  firearm was  present

during the crime.

          Once   the  presence   of  a   weapon   is  established

enhancement is  proper unless the defendant  demonstrates special

circumstances that show a clear improbability that the weapon was

connected to  the drug offense.  U.S. v.  Lagasse, 87 F.3d 18, 22                                                           

(1st Cir. 1996).  Segura  did not offer any special circumstances

                               -21-

that  would make  the connection  between the  gun and  the crime

improbable.  The enhancement was proper.

         ii.  Transaction of a drug sale in a school zone                                                                   

          Segura argues  that the  government did  not offer  any

reliable proof that  any of the  drug sales  took place within  a

protected zone. He  acknowledges that the government  offered the

affidavit of Special Agent Bruce Tavers as proof of the proximity

of  a junior high  school; however,  he says  that this  proof is

insufficient because it lacked an evidentiary foundation.

          In  this  circuit  a   sentencing  court  may  consider

evidence that would  be inadmissable at trial under  the rules of

evidence  so long  as the  sentencing court  determines  that the

evidence has a "sufficient indicia of reliability  to support its

probable accuracy."   U.S. v.  Tardiff, 969 F.2d 1283,  1287 (1st                                                

Cir. 1992).   The affidavit of a  law enforcement officer  who is

familiar  with  the  locale  of  the  drug  transaction  and  the

surrounding area is sufficiently reliable that a court can accept

it as evidence for sentencing purposes.  Segura's enhancement for

transacting  drug sales  within a  school  zone was  sufficiently

supported and proper.

          iii.  Segura's sentence was partially based on                                                                  
               acquitted conduct                                          

          Segura  also challenges the fact that his sentence was,

in  part,  based   on  acquitted  conduct,  i.e.,   his  sentence

calculation should not have included the amount of  crack cocaine

found at the arrest scene because he was acquitted of all charges

involving possession or distribution of crack cocaine.  "A jury's

                               -22-

verdict of acquittal  does not prevent the  sentencing court from

considering conduct underlying  the acquitted charge, so  long as

that conduct has been proved by a preponderance of the evidence."

U.S. v. Watts, 117 S. Ct. 633, 638 (1997).                       

                            CONCLUSION                                      CONCLUSION

          We  AFFIRM   the  convictions  and   sentences  of  all                        AFFIRM

appellants.

                               -23-
