August 9, 1994    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1182
No. 92-1258
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                       DARRYL WHITING,
                     a/k/a G., GOD, RAH,
                    Defendant, Appellant.

                                         
No. 92-1183

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                         SEAN DIXON,
                     a/k/a MICHAEL WHITE,

                    Defendant, Appellant.
                                         

No. 92-1184
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                       RENALDO PLEDGER,
                     a/k/a EUGENE NOBLE,
                    Defendant, Appellant.

                                         
No. 92-1185

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      EDWIN CARMICHAEL,
                        a/k/a FREEDOM,

                    Defendant, Appellant.
                                         

No. 92-1259
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                        WILLIAM BOWIE,
                     a/k/a CUDA, DIAMOND,
                    Defendant, Appellant.

                                         
No. 92-1442

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      STEVEN WADLINGTON,
                       a/k/a MOHAMMED,

                    Defendant, Appellant.
                                         
No. 92-1443
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                      KENNETH BARTLETT,
                       a/k/a CHEYENNE,
                    Defendant, Appellant.

                                         
                         ERRATA SHEET

The opinion of this  Court, issued on July 6, 1994, is amended  as
follows:

On page 32,  line 9 of only  full paragraph, replace the  material
beginning  with  "If  these"  through   "Id.  at  1778-79."  with  the
                                        
following:

If these criteria are met, the court of appeal "has authority
to order  correction, but is not  required to do so,"  id. at
                                                          
1778, and should  exercise its remedial  discretion only  "in
those circumstances  in which a miscarriage  of justice would
otherwise result," or  where the  error "seriously  affect[s]

the  fairness,  integrity or  public  reputation of  judicial
proceedings."  Id. at 1779 (internal quotations omitted). 
                  

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         
No. 92-1182
No. 92-1258
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                       DARRYL WHITING,
                     a/k/a G., GOD, RAH,
                    Defendant, Appellant.

                                         
No. 92-1183

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                         SEAN DIXON,
                     a/k/a MICHAEL WHITE,

                    Defendant, Appellant.
                                         

No. 92-1184
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                       RENALDO PLEDGER,
                     a/k/a EUGENE NOBLE,
                    Defendant, Appellant.

                                         
No. 92-1185

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      EDWIN CARMICHAEL,
                        a/k/a FREEDOM,

                    Defendant, Appellant.
                                         

No. 92-1259
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                        WILLIAM BOWIE,
                     a/k/a CUDA, DIAMOND,
                    Defendant, Appellant.

                                         
No. 92-1442

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      STEVEN WADLINGTON,
                       a/k/a MOHAMMED,

                    Defendant, Appellant.
                                         
No. 92-1443
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                      KENNETH BARTLETT,
                       a/k/a CHEYENNE,
                    Defendant, Appellant.

                                         
        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS
        [Hon. Walter Jay Skinner, U.S. District Judge]
                                                     

                                         
                            Before

                     Breyer,* Chief Judge,
                                         
              Boudin and Stahl, Circuit Judges.
                                              

                                         

                

*Chief  Judge Stephen Breyer heard  oral argument in  this matter, but
did not  participate in  the drafting or  the issuance of  the panel's
opinion.   The remaining  two panelists  therefore issue  this opinion
pursuant to 28 U.S.C.   46(d).

Gary  C. Crossen,  by Appointment  of  the  Court, and  Stephen D.
                                                                  
Sowle with whom Sarah Reed, John A. Shope and Foley, Hoag &amp; Eliot were
                                                             
on briefs for appellant Darryl Whiting.
John H. LaChance, by Appointment of  the Court, with whom LaChance
                                                                  
and Whatley was on briefs for appellant Sean Dixon.
       
John  C.  Doherty,  by Appointment  of  the  Court, for  appellant
                 
Renaldo Pledger.
Janet L. Sanders with whom Zalkind,  Rodriguez, Lunt &amp; Duncan  was
                                                             
on briefs for appellant Steven Wadlington.
Lois  Lewis,  by Appointment  of the  Court,  for appellant  Edwin
           
Carmichael.
John P. Slattery, by Appointment of  the Court, with whom  Wysocki
                                                                  
and Slattery was on brief for appellant Kenneth Bartlett.
        
Paul  A. Dinsmore,  by Appointment  of  the Court,  for  appellant
                 
William Bowie.
Robert  W. Iuliano,  Assistant  United States  Attorney,  Paul  V.
                                                                  
Kelly, Assistant United States  Attorney, (for IAD issue), and  Thomas
                                                                  
C. Frongillo with whom Donald K. Stern, United States Attorney, was on
                                  
briefs for the United States.

                                         

                         July 6, 1994
                                         

     BOUDIN,  Circuit  Judge.   These cases  arise out  of an
                            

extensive  undercover law  enforcement operation  targeted at

the  "New York  Boys," a  large-scale drug  distribution ring

operating out of the Orchard Park Housing Project in Roxbury,

Massachusetts.   The  seven defendants  currently  before the

court appeal their convictions, their sentences, or both.  We

affirm the district court's rulings on all but one point.1

                              I.

     On  December 11,  1990,  a federal  grand jury  indicted

Darryl   Whiting,  Sean   Dixon,   Renaldo   Pledger,   Edwin

Carmichael,  and  Steven   Wadlington--as  well  as   26  co-

defendants--for conspiracy to distribute cocaine in violation

of 21 U.S.C.    846.   A superseding  indictment returned  on

April 11,  1991, expanded the case  to include a total  of 50

defendants,  including Kenneth  Bartlett  and William  Bowie.

The individual  defendants  were also  charged  with  various

combinations of substantive cocaine distribution, 21 U.S.C.  

841(a)(1), firearms  offenses,  18  U.S.C.     922(g)(1);  26

U.S.C.      5861(d),  or   money  laundering,  18   U.S.C.   

1956(2)(1), and Whiting  was alleged to be the  organizer and

                    

     1The published version of this opinion includes only the
statement  of facts  (part  I) and  the  discussion of  those
issues  that may be of  general interest (parts  II and III).
The remaining portions of the opinion as filed  (parts IV-VI)
address  issues  that  do  not appear  to  have  precedential
importance.  See First Cir. R. 36.2.
                

                             -8-

supervisor of a  continuing criminal enterprise in  violation

of 21 U.S.C.   848.

     Rather  than try  50  defendants at  once, the  district

court  severed the case into  smaller cases.   The first five

defendants  named above  ("the first-trial  defendants") were

placed  in the initial trial group, along with a sixth defen-

dant (David Waight)  who has  not appealed.   Trial began  on

June 17, 1991, and continued for 18 days spread over the next

four  weeks.    The   evidence  consisted  primarily  of  the

testimony of undercover agents and cooperating co-defendants.

Taken in the  light most favorable to the  government, United
                                                             

States v. Gonzalez-Torres, 980 F.2d 788, 789 (1st Cir. 1992),
                         

the evidence showed the following:

     The first-trial  defendants,  together with  many  other

individuals, were members of or associated with the "New York

Boys," a street gang  headed by Whiting and operating  out of

the Orchard  Park Housing Project  in Roxbury, Massachusetts.

The gang was so named because many of its members hailed from

Queens,  New York.  During the period  from 1986 to 1990, the

New  York  Boys  evolved  into  a  large,  highly  structured

organization  that employed  up to  100 different  people and

sold cocaine and cocaine base ("crack" cocaine) in shifts  24

hours a day.

     The Whiting  organization received its  cocaine from New

York City.   A number  of couriers transported  the drugs  to

                             -9-

Boston on airline shuttles.  The  drugs were then processed--

"cut" with  dilutants  and divided  into individual  bags--at

several different apartments located outside the Orchard Park

Project.    Finally, the  cocaine  was sold  at  Orchard Park

through an elaborate network of personnel:  "runners" who met

customers  and  took  their  money;   other  individuals  who

"worked the pack"  by holding small quantities of cocaine and

distributing  it to  incoming runners  in exchange  for cash;

and a  third group  who held  larger  inventories of  cocaine

packs in  more secure locations  and periodically  resupplied

those  "working  the pack."    Additional  workers served  as

lookouts for police or provided security against rival gangs.

During  the organization's  most prosperous  period, the  New

York Boys sold as much as five kilograms of cocaine per week,

grossing up to $100,000 in a single half-day shift.

     The organization sent substantial sums out of Boston via

Western  Union,  giving  rise  to   money-laundering  charges

against  Whiting and  Carmichael.   Many of the  workers were

paid up to $1,000  per week for their services,  although not

consistently.   Whiting  invested  funds  in various  Roxbury

businesses,  including a  barber shop,  video store,  and the

Crown  Social Hall.    Although  this  hall functioned  as  a

community  center,  it  also  served  as  a  front  for  drug

distribution  activities  and  a  means  of  laundering   the

proceeds of drug sales.  Whiting also sponsored rap concerts,

                             -10-

barbecues,  and other  social events,  and provided  gifts of

clothing and money to youth in the Roxbury community.

     The  government's  witnesses  testified  about  numerous

weapons possessed by defendants and acts of violence done  to

maintain discipline within the organization and security vis-

a-vis  rival gangs.  Security measures  were elaborate:  gang

members  were equipped  with binoculars,  walkie-talkies, and

headphones and had ready access to firearms ranging from riot

pump  shotguns to  Uzi  machine guns.    There was  extensive

evidence  of  beatings and  other  acts  of violence  against

members  of  the organization  who  stole  money or  cocaine,

attempted to sell drugs on  their own, or otherwise disobeyed

orders.

     The first-trial defendants mounted a  defense consisting

primarily of  attacks on the credibility  of the government's

witnesses.  Defense  counsel attacked the testimony of one of

the  government's two primary  undercover operatives, Jeffrey

Coy, by  emphasizing instances  in which  Coy  had failed  to

follow proper police procedures  and by showing that  Coy had

suffered serious psychological and emotional  problems during

and  after  the investigation.    Defendants  also sought  to

undermine the second  undercover agent,  Maurice Dawkins,  by

way of  testimony from a  former supervisor that  Dawkins was

not  "a man of truth."   Defense counsel  also won admissions

that many of the  cooperating co-defendants who testified had

                             -11-

drug  problems,  and that  some would  be  willing to  lie to

further their own interests.   Whiting himself testified that

he was not involved in drug  dealing and that his income came

from legitimate business activities.

     On  July 24,  1991, the  jury convicted  Whiting of  one

count  of engaging  in a  continuing criminal  enterprise, 21

counts of  distribution of  cocaine, and  one count of  money

laundering; he was acquitted of two counts of distribution of

cocaine.2     Dixon,  a  runner  and   security  worker,  was

convicted  of conspiracy  to  distribute cocaine  and of  one

substantive distribution  count,  but  was  acquitted  on  an

additional  distribution count.    Pledger, another  security

worker, was  convicted on  the  conspiracy count  and on  one

count of  being a felon  in possession  of a firearm.   Edwin

Carmichael,  who  had a  managerial  role,  was convicted  of

conspiracy to distribute  cocaine and of  one count of  money

laundering.    Steven  Wadlington,  a  security  worker,  was

convicted  on the conspiracy count  and of one  count each of

distribution  of cocaine  and possession  of  an unregistered

firearm;   he  was acquitted  on two  additional distribution

counts.

                    

     2Whiting was also convicted of conspiracy  to distribute
cocaine;  the district court, however, vacated that  count on
the ground  that it  was a lesser  included offense  subsumed
within the continuing criminal enterprise conviction.

                             -12-

     Sentences were imposed on  October 7, 21, and  22, 1991,

and  the five defendants filed timely notices of appeal.  The

specific sentences imposed were as follows:

Darryl Whiting      Life  without  parole  on the  continuing
                    criminal  enterprise  count;  240  months
                    imprisonment for each of  21 distribution
                    counts and one money laundering count, to
                    be  served  concurrently;  and   a  $1200
                    special assessment.

Sean Dixon          188  months  imprisonment  and 60  months
                    supervised  release   on  the  conspiracy
                    count;   60   months   imprisonment   for
                    distribution count,  to run concurrently;
                    and a $100 special assessment.

Renaldo Pledger     235  months  imprisonment  and 60  months
                    supervised  release;  and a  $100 special
                    assessment.

Edwin Carmichael    262  months  imprisonment  and 60  months
                    supervised  release;  and a  $100 special
                    assessment.

Steven Wadlington   360 months imprisonment on the conspiracy
                    count and 60  months supervised  release;
                    240  months imprisonment  on distribution
                    count;  120  months  imprisonment on  the
                    firearms  count,  all  sentences  to  run
                    concurrently;   and    a   $150   special
                    assessment.

     Bartlett and Bowie  were among six co-defendants  slated

for  trial in the second group created by the district court.

Both Bartlett  and  Bowie  were alleged  to  have  served  as

security workers.   Bowie,  the government claimed,  acted as

the chief of security  for the organization and as  Whiting's

bodyguard.  The second trial commenced  on November 19, 1991.

On the sixth day  of trial, Bartlett and Bowie pled guilty to

conspiracy to distribute cocaine.

                             -13-

     Bowie was sentenced on February 10,  1992, to 262 months

imprisonment and 60  months supervised release, as well  as a

$50 special assessment.  Bartlett  was sentenced on March 11,

1992,  to an  identical sentence; in  his case,  however, the

district   court  ordered   that  the   sentence   be  served

consecutively to  two previously imposed state  sentences for

second  degree  murder  and  firearms  charges.    Bowie  and

Bartlett have  each appealed from their  sentences, and Bowie

has challenged the validity of his guilty plea as well.

                             II.

     We consider first several arguments jointly presented by

the  first-trial   defendants:    Whiting,   Dixon,  Pledger,

Carmichael, and  Wadlington.  Each asserts  that the district

court erred in refusing to  permit certain testimony aimed at

undermining  the  credibility  of  one  of  the  government's

undercover operatives;  in  allowing the  prosecutor to  make

allegedly inflammatory  remarks to the  jury; in  mischarging

the jury  on the  definition of  "reasonable  doubt"; and  in

calculating the  amount of  cocaine for which  the defendants

were  held accountable at sentencing.  Although none of these

arguments is frivolous, we do not find any of them ultimately

persuasive.

A.   Impeachment of Anthony Hewitt
                                  

     A key  government witness at trial  was Maurice Dawkins,

an undercover operative who  made a total of 11  purchases of

                             -14-

cocaine  from  various members  of the  Whiting organization.

Many  of  Dawkins'  dealings  were  uncorroborated   by  tape

recordings or  other witnesses; as a  result, his credibility

became a central issue at trial.  In an attempt  to undermine

Dawkins, the defendants called as a witness Anthony Hewitt, a

deputy  superintendent  of   the  Jamaican  Constabulary  and

Dawkins' former  commanding officer.  Hewitt  testified that,

in his opinion, Dawkins was not a truthful individual and had

a reputation for untruthfulness in Jamaica.

     Fed. R. Evid. 608(b) provides that "[s]pecific instances

of the conduct of a witness,  for the purpose of attacking or

supporting  the witness' credibility, . . . may not be proved

by  extrinsic  evidence."     Accordingly,  defense   counsel

confined  themselves to  eliciting  from  Hewitt his  general

opinion of Dawkins'  truthfulness and the general  reputation

for  truthfulness that  Dawkins had  among his  co-workers in

Jamaica. See Fed. R. Evid.  608(a).  On cross-examination  of
            

Hewitt, the government  elicited testimony regarding specific

instances of  Dawkins' good  conduct:  in  particular, Hewitt

was led to acknowledge various commendations that Dawkins had

received while on  the Jamaican  force, as well  as the  fact

that Dawkins had been injured in the line of duty.

     On redirect examination, the defense sought  to question

Hewitt  about specific  instances in  which Hewitt  and other

members of the  Jamaican Constabulary had found Dawkins to be

                             -15-

not credible.3   Defense  counsel argued that  the government

had "opened the door" by eliciting testimony of specific acts

of good  character on cross-examination, but  the trial judge

refused to permit such testimony in light of Rule 608(b).  In

this court defendants repeat their  claim under the rubric of

"curative admissibility," which holds that "a trial judge, in

his discretion, [may]  admit otherwise inadmissible  evidence

in order to rebut prejudicial evidence which has already been

erroneously admitted."  United States v. Nardi, 633 F.2d 972,
                                              

977 (1st Cir. 1980) (citations omitted).

     The   defendants  are  mistaken  in  assuming  that  the

government's   evidence  of   Dawkins'  good   character  was

erroneously admitted.  It is quite true that the government's

evidence  (of  Dawkins' courage  and  good  conduct) was  not

admissible under Rule 608(b)  to accredit Dawkins because the

episodes related only to  Dawkins' general good character and

not to his character for truthfulness.   But by its own terms

Rule 608(b)  imposes its restriction only  upon evidence that

is  offered for  the purpose  of buttressing  credibility; it
                            

does  not forbid evidence that happens to show good character

                    

     3Specifically, the  defense sought to  introduce through
Hewitt evidence that Dawkins had falsely reported that he was
the victim of a shoot-out in 1987, and  that Dawkins had been
the subject of at least four civilian complaints of abuse and
assault  which   he  had   denied  but  which   the  Jamaican
Constabulary had deemed credible.

                             -16-

but is offered  for another legitimate  purpose.  See  United
                                                             

States v. Abel, 469 U.S. 45, 55-56 (1984).
              

     Here,  the government's  exploration of  Dawkins' record

served two  quite different purposes.   First, the prosecutor

sought to test Hewitt's familiarity with Dawkins' record, the

inference  being that Hewitt's own opinion  and his report as

to  Dawkins'  reputation  were  themselves  untrustworthy  if

Hewitt  knew  little  about  Dawkins.   Michelson  v.  United
                                                             

States,  335 U.S.  469,  480  (1948).    Second,  by  showing
      

Dawkins'  exemplary record,  the  prosecutor aimed  to  raise

doubts  about Hewitt's  own  motive in  testifying against  a

fellow  officer  with  a  good record,  and  thus  to  impute

prejudice to Hewitt.  See Abel, 469 U.S. at 51.  
                              

       In some instances, the permissible inferences might be

offered merely as pretext to smuggle in an impermissible one.

But  in this  case, the  government's first  justification is

ample and  the  second, if  thinner, is  at least  plausible.

Defendants would have been  entitled, had they asked for  it,

to an instruction limiting  the jury's use of  the government

evidence  to these lines  of inference and  advising the jury

that  it was  not entitled  to infer  Dawkins' character  for

truthfulness from his  general good character.   Accordingly,

the doctrine  of curative admissibility  has no role  in this

case because there was no error to be cured.

                             -17-

     One could defend the  admissibility of the bad character

evidence  in question by  saying that just  as the government

used evidence  of Dawkins' good character  to impugn Hewitt's

motive,  evidence of  Dawkins'  bad character  would tend  to

lessen doubts  about Hewitt's readiness to  testify against a

former fellow  officer.  But  the bad character  evidence was

not offered on  this ground, and  explaining the purpose  for

which disputed  evidence is  offered is normally  required to

preserve the issue on appeal.  Tate v. Robbins &amp; Myers, Inc.,
                                                            

790  F.2d 10,  12 (1st  Cir. 1986).   A general  reference to

"fighting fire with fire"  is hardly much help to  a district

judge trying to make  on-the-spot rulings in the middle  of a

hectic trial.4 

B.   Prosecutor's Rebuttal Argument
                                   

     Defendants' second set of arguments revolves around four

remarks made by  the prosecutor in  his rebuttal argument  to

the  jury  at  the  close  of  the  trial.    We  have  taken

allegations of  such prosecutorial overreaching  seriously in

this circuit, e.g., Arrieta-Agressot v. United States, 3 F.3d
                                                     

525 (1st  Cir. 1993);  United States v.  Santana-Camacho, 833
                                                        

                    

     4There was no miscarriage of justice on this point.  The
inference  that Hewitt was biased  is not a  very strong one.
Similarly, evidence  of Dawkins' bad character  to refute the
bad-motive  inference  is  not  very  telling;  indeed,  such
evidence  could help to establish Hewitt's bias as well as to
refute it. 

                             -18-

F.2d  371 (1st  Cir.  1987), but  in  this case  none of  the

remarks warrants reversal of appellants' convictions.

     The  first remark  complained  of was  the  prosecutor s

statement  that "[Darryl  Whiting] also  brought the  kids of

Roxbury the  guns, the drugs,  the violence," followed  by an

exhortation  to the jurors not to "let other kids be succored

[sic] in by  that flash,  that cash, that  deception."   This

statement  was  prejudicial,  defendants  argue,  because "it

sought  to deflect  [the jurors ]  attention from  the issues

that they were sworn to decide, . . . and  attempted to foist

onto  the   jury   responsibility  for   the   extra-judicial

consequences of a  not guilty  verdict."  We  agree that  the

"other kids"  reference was  improper, for  "[t]he prosecutor

should  refrain from arguments  [predicting] the consequences

of the jury's  verdict." American Bar Association,  Standards
                                                             

Relating to the Administration of Criminal Justice 3-5.8(d).
                                                  

     In  this case defense  counsel failed  to object  at the

time  the allegedly  prejudicial  statement was  made, so  we

review only for  plain error.   Arrieta-Agressot,  3 F.3d  at
                                                

528.    Courts are  reluctant to  find  such error  where the

prosecutor s remarks were isolated and made to rebut specific

statements by defense counsel.  See United States v.  Machor,
                                                            

879 F.2d 945,  956 (1st  Cir. 1989), cert.  denied, 493  U.S.
                                                  

1081 (1990).  Here, the prosecutor was clearly  responding to

defense  counsel's portrayal  of Whiting as  a philanthropist

                             -19-

and  benefactor of  Roxbury's  youth, and  defendants do  not

point  to other like instances  of rhetorical excess.   We do

not believe  that the  prosecutor's remarks "so  poisoned the

well that the trial s outcome was likely affected."  Arrieta-
                                                             

Agressot, 3 F.3d at 528.
        

     Defendants  next object  to  the prosecutor's  assertion

that   defendants   closing  arguments  were  "smoke  screens

floated your way by defense counsel . . . [who are] very able

people here."   This statement, defendants  argue, "sought to

convince the jury that the arguments  of defense counsel were

. . . manufactured by able  lawyers seeking to hide the truth

from the jury."   We  agree that the  prosecutor should  have

focused  on the  merits of  the defendants'  arguments rather

than their source.   Again, defense counsel  failed to object

to  the statement  at trial,  and we  have little  trouble in

holding  that this isolated misstep did not rise to the level

of plain error.

     Defendants did object  to the third  allegedly offensive

statement, arguing  that the prosecutor improperly placed his

own character at issue when  he said that "[a]n attack on  me

and my colleagues  and our  ethics and our  approach to  this

case not only  [is] an affront to me personally,  but a smoke

screen."    Although a  prosecutor  may  not pledge  his  own

character as a basis for inferring the defendant s guilt, see
                                                             

United States v.  Garza, 608  F.2d 659 (5th  Cir. 1979),  the
                       

                             -20-

statement in  this case referred to  the government's conduct

of its  investigation,  not the  guilt  or innocence  of  the

defendants.   The prosecutor's isolated  remark responded  to

far harsher  remarks of  defense counsel that  the government

had  suborned perjury.    Finally, the  trial judge  properly

instructed the  jury to disregard the  prosecutor's statement

that he felt  affronted.   See United States  v. Moreno,  991
                                                       

F.2d  943, 948  (1st  Cir.), cert.  denied,  114 S.  Ct.  457
                                          

(1993).

     Defendants'  final claim  concerns  a  government  chart

showing  the organizational  structure of  the New  York Boys

and, specifically, listing Dixon  as a processor and packager

of cocaine.  The evidence showed Dixon instead to be a runner

and, when  Dixon's counsel seized  on the discrepancy  in his

closing argument,  the prosecutor  in rebuttal told  the jury

that the  reference on  the chart  was a typographical  error

arising from the presence of another defendant  with the same

last  name.    Defendants'  objection that  this  was  "extra

judicial  testimony"  by  the prosecutor  may  be technically

correct,  but the  prosecutor's misstep  was a  trivial one--

serving in part to correct an overstatement of Dixon's role--

and it certainly did not cause substantial prejudice.  

C.   Reasonable Doubt
                     

                             -21-

     Defendants objected to the trial  court's instruction to

the jury on the  meaning of reasonable doubt, whose  core was

the following paragraph:

     Now, reasonable doubt is  not a fanciful doubt, nor
     a whimsical doubt, nor a doubt based on conjecture,
     but  is  a  doubt  based on  reason,  as  the  name
     implies.    The  government  is  not   required  to
     establish guilt to a mathematical certainty or to a
     scientific  certainty.    The  government   is  not
     required to exclude every other remote possibility.

     This  circuit  has  repeatedly  refused to  require  the

district  courts  to  define  "reasonable  doubt"   in  their

instructions   to  the   jury.     E.g.,  United   States  v.
                                                         

Littlefield,  840 F.2d 143, 146 (1st Cir.), cert. denied, 488
                                                        

U.S.  860 (1988).  Where  the district court  does define the

term, we  have suggested that "attempts  at definition should

not stray far from the consistently approved stock of charges

on reasonable doubt." Id. at 646.   We have left to the trial
                         

judge,  however,  "the  choice  among  acceptable  linguistic

alternatives."  Tsoumas v. State  of New Hampshire, 611  F.2d
                                                  

412, 414 (1st Cir. 1980). 

     The phrases  employed in the paragraph  quoted above are

stock phrases  and the  defendants do not  challenge most  of

them individually.   They do  assert that to  call reasonable

doubt "a doubt  based on reason" is at odds  with the Supreme

Court's  postulate  that  a  reasonable  doubt  need  not  be

articulable or even logical  so long as it appeals  to common

sense.   See Harris v. Rivera, 454  U.S. 339, 347 (1981).  We
                             

                             -22-

think  that this argument rests on too fine a distinction and

that a  "doubt based  on reason"--a phrase  approved by  this

circuit  on a  number of  occasions, e.g.,  United States  v.
                                                         

DeVincent, 632 F.2d  147, 152 (1st  Cir.), cert. denied,  449
                                                       

U.S.  986 (1980)--is not a bar against using common sense but

merely   contrasts   "reason"   with  "fancy,"   "whim,"   or

"conjecture."  

     Defendants' main objection is that  the district court's

emphasis on what is  not a reasonable doubt so  far outweighs

its  statement of what is  a reasonable doubt  as to lead the

jury to concentrate overmuch  on the former.  By  itself, the

concept  of  proof  "beyond  a reasonable  doubt"  gives  the

defendant  a  substantial  advantage, which  is  why  defense

counsel so often  repeat those words in  summation.  Although

the advantage is a legitimate one, it does not seem to us one

that is likely to be undermined by an instruction that with a

few general  phrases  indicates that  not  every doubt  is  a

reasonable one.

     In  any event, elsewhere in the charge the court in this

case reminded the jury, in connection with the presumption of

innocence,  that a defendant is never to be convicted "on the

basis of mere  conjecture, surmise or  guesswork."  In  other

words, the jury was told that just as a fanciful doubt should

not stand in the way of conviction, so too a reasonable doubt

could  not   be  papered  over  by   conjecture,  surmise  or

                             -23-

guesswork.   Taking the reasonable doubt  instruction "in the

context  of the overall  charge," Cupp v.  Naughten, 414 U.S.
                                                   

141,  146-47  (1973),  we  think that  the  charge  here  was

adequately balanced. 

D.   Calculation of Drug Quantity
                                 

     Because  defendants  were  convicted  of  conspiracy  to

distribute cocaine, they were  held responsible at sentencing

for "drugs [they] personally handled or anticipated handling,

and, under the relevant conduct rubric, for drugs involved in

additional acts  that were reasonably  foreseeable by  [them]

and were committed in furtherance of the conspiracy."  United
                                                             

States  v. Sepulveda,  15 F.3d  1161, 1197  (1st Cir.  1993),
                    

cert. denied, 1994 U.S. Lexis 4738 (June 20, 1994).  Based on
            

the  government's  evidence  at  trial,  the  district  court

estimated  that  the  Whiting  organization  distributed  two

kilograms of cocaine per  week over a period of  three years.

Defendants now  challenge this calculation,  arguing that the

district court based its  estimate on unreliable evidence and

improper extrapolation.

     We review factual findings by the sentencing court as to

drug  quantity only for clear  error.  Sepulveda,  15 F.3d at
                                                

1196.    "[T]he  sentencing  court has  broad  discretion  to

determine what data is, or is not, sufficiently dependable to

be used in imposing sentence," United States v.  Tardiff, 969
                                                        

F.2d  1283, 1287  (1st  Cir.  1992),  and  we  defer  to  any

                             -24-

credibility determinations by  the sentencing court.   United
                                                             

States  v. Brewster,  1 F.3d  51, 54  (1st  Cir. 1993).   The
                   

burden  is  on the  government to  prove  drug quantity  by a

preponderance of  the evidence.   United States  v. Valencia-
                                                             

Lucena, 988 F.2d 228, 232 (1st  Cir. 1993).5  Because of  the
      

impact  of quantity on the  length of sentence,  we have said

that in resolving  doubts the sentencing  court must "err  on

the side of caution."   United States v. Sklar, 920 F.2d 107,
                                              

113 (1st Cir. 1990).

     The  district court  estimated  that the  New York  Boys

distributed an average  of two kilograms of cocaine  per week

over the  three-year life of  the conspiracy.   This estimate

was  based   primarily  upon  general  comments   by  various

defendants  estimating average  volumes of  business.   These

estimates were then corroborated by  reports from cooperating

co-defendants  that particular  quantities  of  cocaine  were

handled at  particular times, controlled  buys by  government

undercover operatives, and  evidence indicating the  size and

scope of the organization itself.  

                    

     5Defendants argue  that, due  to the critical  impact of
drug quantity on a defendant's sentence, due process requires
proof of  such quantities  by clear and  convincing evidence,
rather than  a mere  preponderance.   This  argument was  not
raised  below and,  in any  event, is  foreclosed by  circuit
precedent. See, e.g. United  States v. Lowden, 955  F.2d 128,
                                             
130  (1st Cir. 1992).  See also McMillan v. Pennsylvania, 477
                                                        
U.S. 79, 91-93 (1986) (holding that a "preponderance standard
satisfies due process" at sentencing).

                             -25-

     Thus, Dawkins  testified at  trial to a  conversation he

had  with Steven  Wadlington on  November  6, 1990.   Dawkins

asked  Wadlington how much cocaine the New York Boys sold per

week, to which  Wadlington replied:   "[i]n a  slow week,  we

sell two and a half kilos.  In a fast week, four kilos. . . .

We do  this a  long time."6   A second  estimate was  made by

Ansur Adams, a  gang member who was allegedly responsible for

processing the cocaine.  Adams  testified that in August  and

September of 1990 (the year  in which he was involved in  the

conspiracy), the  Whiting organization sold  between two  and

three  kilograms of cocaine  per week.   Adams also testified

that   Jon   James,   one  of   the   organization's  alleged

supervisors,  told him that the  New York Boys  "used to move

five ki's [sic] a week before [Adams] came."

     These broad estimates  were consistent  with reports  of

quantities  handled by  various gang  members.   For example,

Tony Samuels testified that  the organization sold an average

of ten  $40 bags and seven  $60 bags of cocaine  in a 12-hour

shift.    There  was  testimony  that  a  $60  bag  contained

approximately 1.5  grams  of cocaine;  accordingly,  Samuels'

                    

     6Defendants complain that much of Dawkins' testimony was
hearsay.    The  guidelines   provide,  however,  that  "[a]t
sentencing,  the  district   court  may  consider   `relevant
information  without  regard to  its admissibility  under the
rules  of evidence  applicable  at trial,  provided that  the
information has sufficient indicia of reliability  to support
its probable  accuracy.'"  United States  v. Valencia-Lucena,
                                                            
988 F.2d  228,  232  (1st  Cir.  1993)  (quoting  U.S.S.G.   
6A1.3(a)).  

                             -26-

testimony indicates sales of roughly 410  grams per shift and

up to  5.74 kilograms  per week.   Rochelle Burden  testified

that  each apartment used as  a base of  sales operations was

able to sell a pack of twenty $60 bags every two hours, which

supports  a  figure  of  360  grams  of  cocaine  a  day  and

approximately 2.52 kilograms per  week per apartment (several

apartments  were in  use  at any  given  time).   Wayne  Ruff

testified that, when running money during a typical shift, he

generally delivered the proceeds of five packs of $60 bags to

his supervisor; at 30 grams per  pack, this figure translates

into  300 grams  per  day or  2.1 kilograms  per  week.   The

government notes, moreover, that it is unlikely that Ruff was

the only runner.

     In  magnitude these  estimates are  generally in  accord

with one another  (the only divergent testimony--from  Lonnie

Avant--suggested  an  even  larger  average  figure).     The

estimates  are   also  buttressed  by   testimony  about  the

organization's impressive scope:   there was evidence that it

employed  at  least eight  different  women  as couriers  who

sometimes  made multiple  trips per  week, carrying  anywhere

between 125  grams and one  kilogram each trip,  that selling

activities were  conducted 24  hours  per day,  seven days  a

week, that eleven  different apartments were used  to sell or

store  cocaine,   and  that   50  to  100   different  people

                             -27-

participated in distribution  activities over  the course  of

the conspiracy.

     Defendants assert  that the information  upon which  the

court  relied was inherently unreliable for various reasons--

principally  that  much  of  it  came  from  cooperating  co-

defendants who  admitted they would  lie in order  to advance

their  own  interests,  and   that  the  statements  made  to

undercover  operatives  could  be  construed  as  exaggerated

"puffing."  The district  court, however, has wide discretion

in determining what evidence  is sufficiently reliable to use

at sentencing, see Tardiff, 969 F.2d at 1287, and we will not
                          

disturb the court's finding  that the government's  witnesses

were  credible.  Brewster,  1  F.3d  at  54.    Further,  the
                         

estimates were  largely consistent and, as  we explain below,

the district court's ultimate finding was quite conservative.

     Defendants' more serious contention is that the evidence

produced by the government and relied upon  by the sentencing

court focused mainly upon the last year of conspiracy.  It is

inherently speculative, defendants argue, to derive from this

evidence  estimates of the total amount of cocaine handled by

the conspiracy over its three-year  existence.  We agree that

special care may  be needed where  evidence of quantities  in

one period is  extrapolated to  fill gaps in  evidence as  to

other  periods.   But  while  the  organization's sales  here

varied over  time,  there  was at  least  some  evidence  for

                             -28-

earlier periods and the  court's conservative estimate left a

fair margin of safety.

     First, some of  the evidence here did  deal with periods

prior  to 1990,  the  last year  of  the conspiracy.    Adams

reported  that, according  to  Jon  James,  the  organization

distributed five kilograms of cocaine per week prior to 1990.

Much of the corroborating  anecdotal testimony came from gang

members--Burden, Ruff, Avant, and Michael  Wilson--who joined

the conspiracy  in 1987  or 1988.    Their evidence,  already

summarized,  was  not  limited  to  the  final  year  of  the

conspiracy.   

     Second, following our  directive to "err on  the side of

caution," Sklar, 920 F.2d at 113, the district court held the
               

organization  accountable for  two kilograms  of cocaine  per

week over the life of the conspiracy--still an impressive sum

but  less than Wadlington told Dawkins the New York Boys sold

in  a  "slow week"  in  1990 and  less than  half  what James

reported selling  prior to that  year.  Moreover,  because of

the breadth  of the  relevant sentencing categories,  we need

only find that the evidence supported a 1.5 kilogram per week

figure  in order  to  uphold all  of  the sentences  in  this

case.7   United  States v.  Bradley, 917  F.2d 601,  604 (1st
                                   

                    

     7This is so of Dixon, who was involved for approximately
104  weeks and was  sentenced at  level 38,  which has  a 150
kilogram  threshold.  U.S.S.G.   2D1.1(c)(3).  In the case of
Whiting, Carmichael, Wadlington and Pledger, one kilogram per
week  would  be  adequate  for  their  respective  sentencing

                             -29-

Cir.  1990).  All of the  general estimates in the record, as

well  as the corroborating testimony as to amounts handled at

particular times, refer  to quantities well in  excess of one

kilogram per week.

                             III.

     In addition to the arguments raised jointly by the trial

defendants, each of the seven defendants who have appealed in

this case has advanced  one or more claims of error unique to

his individual case.   Although  we have dealt  with most  of

these contentions in the unpublished portion of this opinion,

a  few   are  of  sufficient  general   interest  to  warrant

discussion here.

A.  Darryl Whiting
                  

     Whiting,  the   ringleader  of   the  "New   York  Boys"

organization, was  convicted on one  count of  engaging in  a

continuing  criminal  enterprise,  on  21  counts of  cocaine

distribution, and on one  count of money laundering.   At the

time of  his indictment, Whiting  was serving a  state prison

sentence in Massachusetts.  His presence at his federal trial

was secured through  use of  the IAD, which  permits a  state

with charges outstanding against  a prisoner of another state

                    

thresholds.   Id. at     2D1.1(c)(3), (4)-(5).   Because  the
                 
first-trial defendants were all sentenced in October of 1991,
we  apply  the 1990  version of  the  guidelines.   Isabel v.
                                                          
United States, 980  F.2d 60,  62 (1st Cir.  1992).   Although
             
Bowie  was  sentenced  later  and  was  subject  to the  1991
guidelines, the  relevant provisions were not  altered in the
later edition. 

                             -30-

to take custody of  that prisoner for the time  necessary for

trial.8  His principal  argument on appeal is that  delays in

bringing him to trial violated his rights under the IAD.

     The  IAD requires  that  where the  detainer process  is

initiated by  the receiving  state rather than  the prisoner,

trial must begin within 120 days of the prisoner's arrival in

the  receiving  state.   IAD  art.  IV(c).    There  are  two

exceptions  to this rule.  Article VI provides that the IAD's

speedy trial provisions will  be tolled "whenever and for  as

long as  the prisoner is  unable to stand  trial."  IAD  art.

VI(a).   In  addition, Article  IV(c)  allows that  "for good

cause  shown in open court,  . . . the court  . . . may grant

any necessary or reasonable continuance."  

     The  parties appear to agree that in this case the IAD's

speedy  trial clock began to  run on December  21, 1990, when

Whiting made his initial appearance in federal court, and for

purposes of this  case we adopt  this starting  point.  At  a

second hearing  on December  27, Whiting (now  accompanied by

counsel) refused to waive his rights under the IAD.  On April

3, 1991, shortly before the 120 day period was to expire, the

                    

     8The IAD  is the  Interstate Agreement on  Detainers, 18
U.S.C.  App.  II.   The  federal jurisdiction  of  the United
States is  considered to be another "state" for IAD purposes.
IAD art. II.  Because the IAD is a congressionally-sanctioned
compact  within the Compact Clause, U.S. Const. Art. I,   10,
cl. 3,  its construction is  exclusively a matter  of federal
law.  Carchman v.  Nash, 473 U.S. 716, 719  (1985); Cuyler v.
                                                          
Adams, 449 U.S. 433, 438-42 (1981).
     

                             -31-

government  moved for a continuance as well as a finding that

the IAD had been  tolled by Whiting's filing of  various pre-

trial motions.  After a  hearing, the district court accepted

the government's  tolling argument and found  that the speedy

trial period would  not expire  until June 12,  1991, at  the

earliest.  In the alternative, the court found that there was

good cause for a continuance.

     On  June 13, 1991,  Whiting moved  for dismissal  of the

federal indictment for violation of his rights under the IAD.

The district court orally denied this motion on the first day

of  trial--June 17, 1991--finding that an additional pretrial

motion  filed by Whiting had tolled the IAD clock for another

34 days.  Whiting  now appeals from the trial  court's denial

of his motion  to dismiss.  We affirm the  district court and

hold that (1) the IAD clock  was stopped and (2) in any event

there was good cause for a continuance.

     1.   The courts of appeals are divided as  to the proper

construction of  the  IAD's  Article  VI  tolling  provision.

Whiting  urges  us to  follow the  Fifth and  Sixth Circuits,

which have  construed that  provision narrowly and  held that

the phrase "unable to stand trial" refers only to physical or

mental  incapacity.   See Birdwell v.  Skeen, 983  F.2d 1332,
                                            

1340-41 (5th Cir.  1993); Stroble v. Anderson,  587 F.2d 830,
                                             

838 (6th Cir. 1978), cert.  denied, 440 U.S. 940 (1979).   We
                                  

are precluded  from adopting the narrow  reading advocated by

                             -32-

Whiting  by  our  own prior  decisions  in  United States  v.
                                                         

Walker,  924 F.2d  1 (1st  Cir. 1991),  and United  States v.
                                                          

Taylor,  861 F.2d  316  (1st Cir.  1988).   These  decisions,
      

consistent with  the predominant  view  among circuits,  held

generally  that "a  defendant waives  the  120-day limitation

during the time it  takes to resolve matters raised  by him."

Taylor, 861 F.2d at 321 (citation omitted).9  Taylor     held
                                                    

out  the possibility that the time involved in disposing of a

motion might not all  be excluded where the defendant  timely

advised  the  district  court  that  he or  she  claimed  the

protection of the IAD  and the district court then  took more
                          

time than was necessary to resolve the motion.  In this case,

Whiting  did  formally invoke  the  IAD's  protection at  his

second  hearing,  but  the  district court  also  found  that

Whiting and his counsel made a "tactical decision" thereafter

to ignore the issue.

     In  all events  Whiting offers  no specifics  that would

lead us to conclude, in this extremely complex and burdensome

case,  that  the district  court  was slothful  in  acting on

defense motions.   Further, based on the rationale  of Taylor
                                                             

                    

     9The Second, Fourth, Seventh,  and Ninth Circuits are in
accord.   United States v. Scheer, 729 F.2d 164, 168 (2d Cir.
                                 
1984); United  States v. Hines,  717 F.2d 1481,  1486-87 (4th
                              
Cir. 1983), cert. denied, 467  U.S. 1214, 1219 (1984); United
                                                             
States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988), cert.
                                                             
denied,  488 U.S. 1015 (1989); United  States v. Johnson, 953
                                                        
F.2d  1167, 1172  (9th Cir.),  cert. denied,  113 S.  Ct. 226
                                           
(1992). 

                             -33-

we  hold  that the  time  excluded  includes time  explicitly

granted to  Whiting for the preparation  of pretrial motions.

See  Nesbitt, 852 F.2d at  1514 (so holding  under the Speedy
            

Trial Act).  Finally,  we reject Whiting's fall-back position

that  time   spent  on  non-dispositive  motions  (here,  for

discovery  and   exculpatory  evidence)  should   be  treated

differently than  dispositive motions; both types  are likely

to  delay trial  and both  should be  treated the  same under

Taylor.10
      

     2.   Alternatively, we find that there was good cause in

this case for a  continuance under Article IV(c) of  the IAD.

We  have held  that a  continuance granted  under the  Speedy

Trial Act--a  statute that is, if  anything, more restrictive

of ad hoc continuances--will be reversed only for an abuse of
         

discretion.  United States v. Pringle, 751 F.2d 419, 429 (1st
                                     

Cir. 1984).  In  the present case, the district  court rested

its  finding of  good cause  on three  primary grounds:   the

"inherent complexity of this case, [and] the existence of co-

defendants and their pending motions," and the fact that some

of Whiting's co-defendants remained at large.

     These reasons are ones that  are recognized as bases for

continuance  in the  Speedy  Trial Act.    See 18  U.S.C.    

                    

     10Neither Taylor nor Walker concerned motions  that were
                                
formally dispositive, nor does  the distinction urged comport
with the  statutory criterion ("unable to  stand trial") that
is construed in Taylor and Walker.
                                 

                             -34-

3161(h)(7) (joinder with codefendant whose time has not run),

3161(h)(8)(B)(ii) (complexity; number of defendants).   Here,

the court was confronted with a case initially embracing over

50 defendants--some still at  large--and a range of different

charges and issues.  To move Whiting's case (and that of five

co-defendants) from  the assumed  starting point to  trial in

just under six months was no mean feat.

     Further, even if we followed the Fifth and Sixth Circuit

approach  and held  that Whiting's  pretrial motions  did not

automatically toll the running  of the time period,  we would

hardly ignore them in deciding whether a continuance of about

58  days was  reasonable.   Here,  Whiting  did file  various

pretrial  motions,  as  did  other  of  the  first-trial  co-

defendants;  and, as  noted,  there is  no  showing that  the

district  court  unreasonably delayed  in  acting  upon them.

Whatever the limitations on  delaying a trial, Whiting's case

does not even arguably test them.

     B.   Steven Wadlington
                           

     Wadlington was an employee  of the Crown Social  Hall, a

club owned  by Whiting  that operated as  a community  center

and, the  government alleged,  a center of  drug distribution

and money  laundering activities.   At trial,  the government

alleged  that  Wadlington's  primary  role  was   to  provide

security for  the organization.  Wadlington  was convicted of

one  count   of  conspiracy   to   distribute  cocaine,   one

                             -35-

substantive distribution count,  and one count of  possession

of an unregistered  firearm.  His primary argument  on appeal

is a challenge to his firearms conviction.

     Wadlington was charged under  26 U.S.C.   5861(d), which

makes it unlawful  for any  person "to receive  or possess  a

firearm which  is  not  registered  to him  in  the  National

Firearms  Registration and  Transfer Record."   This  offense

requires not only  proof of  possession and  nonregistration,

but also proof  that the  weapon in question  is a  "firearm"

under  the statute.   The  statutory definition  of "firearm"

under  26 U.S.C.   5845 is somewhat narrower than that term's

commonly understood meaning, see United States v. De Bartolo,
                                                            

482 F.2d 312 (1st  Cir. 1973), and as Wadlington  was accused

of possessing  an unregistered shotgun, the  statute required

proof that the  shotgun in  question had a  barrel length  of

less than  18 inches,  or an overall  length of less  than 24

inches, and could fire (or could be restored to fire) shotgun

shells.  26 U.S.C.    5845(c), (d).

     The trial court's  charge to  the jury  on the  firearms
count, however,  omitted this element.   The court instructed

the jury as follows:

     Steven Wadlington . . . [is] indicted for conspiracy and
     three counts of distribution.   And Count 32, possession
     of an  unregistered firearm.   That  is  this sawed  off
     shotgun,  and it  doesn't  matter who  you  are or  what
     otherwise you are doing, it is a violation of the law to
     possess such an item unless it has been  duly registered
     as  described by the witness, and there is evidence that
     this  firearm  [has] not  been  so registered.    So the
     government  doesn't have to prove he is a felon, a user,

                             -36-

     or  anything else, he could be a college president or an
     archbishop, but he must not possess that firearm.

At no time  did the  court define "firearm"  or instruct  the

jury that it was their  responsibility to determine that  the

shotgun  in question was one  having a barrel  length of less

than 18  inches or an overall  length of less than  24 inches

and either operable or capable of being made operable.11

     On  appeal, the government concedes--as it must--that it

was error to omit the applicable definition of "firearm," and

submit the issue to the jury.  Wadlington failed to object to

the   district  judge's   jury  instruction   at  trial   and

accordingly, we review only for "plain error."  Fed. R. Crim.

P. 30, 52(b).   The  Supreme Court has  recently glossed  the

latter  rule by stating that there must  be an error, it must

be  "clear" or  "obvious,"  and it  must affect  "substantial

rights."   United States v.  Olano, 113 S.  Ct. 1770, 1777-78
                                  

(1993).  If these criteria are  met, the court of appeal "has

authority to order correction, but is not required to do so,"

id. at 1778, and should exercise its remedial discretion only
   

"in  those circumstances  in which  a miscarriage  of justice

would  otherwise  result,"  or  where  the  error  "seriously

                    

     11We  focus  upon the  length  and  operability, as  the
parties do in the briefs, because there is repeated reference
in the testimony to the weapon as a "shotgun," the weapon was
actually shown to the jury, and there is virtually no dispute
that it was in fact a shotgun.  For this reason, the district
court's reference to "this sawed off shotgun"--which might in
other circumstances  look like  a court determination  of the
issue--is patently harmless.

                             -37-

affect[s]  the  fairness, integrity  or public  reputation of

judicial proceedings."    Id. at  1779  (internal  quotations
                             

omitted). 

     Although  it is easy to see how the district judge could

have overlooked a relatively  minor and undisputed element in

this massive  case, we  have little difficulty  in concluding

that  the   error  in   omitting  a   statutory  element--the

definition  of  the weapon--of  the  offense  was "clear"  or

"obvious."     Whether   that  error   affected  Wadlington's

"substantial  rights" is  a more  difficult question.   Under

Olano,   "in  most  cases  it  [the  error]  must  have  been
     

prejudicial:    It must  have  affected  the outcome  of  the

District Court proceedings."   Id.  at 1778.   Further, in  a
                                  

plain  error   context,  "the   defendant  rather   than  the

Government  . . . bears the burden of persuasion with respect

to prejudice."  Id.
                   

     If  the test of prejudice  that applies in  this case is

whether the jury  on this record would have  come to the same

result  under a proper instruction, we think that it is clear

that  the jury would  readily have convicted.   Starting with

the issue of length, there was testimony that the shotgun had

originally been a long-barrelled weapon and that a member  of

the organization  had sawed off  portions of both  the barrel

and  stock.  Dawkins testified that when he bought the weapon

from the organization for $850, it was "sawed off."  Finally,

                             -38-

a government  firearms expert testified at  trial that "based

upon measurement" of the exhibit, it was a weapon that cannot

be possessed without being registered.

     As to  capacity of  the  weapon to  fire or  to be  made

operable, the evidence  is a trifle thinner:   the government

showed that  the organization had  troubled to  cut down  the

weapon, that the gun  had then been possessed by  two members

of  the organization involved  in security,  and that  it had

then  been  sold to  Dawkins--a  continuing  customer of  the

organization--for   $850.      Although   we   question   the

government's   suggestion  that   its  firearms   expert  was

implicitly testifying as to  operability, the other  evidence

very  strongly suggests  that the shotgun  was regarded  as a

functioning weapon by those with  reason to know, and defense

counsel never contested operability.

     All this may  not be enough.   One might, or  might not,

read  recent Supreme Court  decisions to  mean that  where an

incorrect instruction  is given, it  may not be  adequate for

the government to show that the  record evidence assured that

a reasonable jury under  proper instructions would have found

the disputed element  in favor of the  government; rather, it

may  be the  law that the  jury must  in fact  have made this

finding   despite  the  erroneous   instruction.12    Such  a

                    

     12See,  e.g., Sullivan  v. Louisiana,  113 S.  Ct. 2078,
                                         
2081-82  (1993); Yates  v. Evatt,  111  S. Ct.  1884, 1893-94
                                
(1991); Carella  v. California,  491 U.S. 263,  269-71 (1989)
                              

                             -39-

showing  would be difficult to make in this case (since there

was  no instruction on length or operability); but whether it

is necessary is unclear.

     The  question need  not be  answered here.   Even  if we

assume in  this case that  the error did  "affect substantial

rights,"  we   do  not  think   that  this  error   caused  a

"miscarriage   of  justice"   or  "seriously   affect[s]  the

fairness,   integrity  or   public  reputation   of  judicial

proceedings."   Olano, 113 S. Ct. at 1778-79.  The undisputed
                     

evidence  showed that this was a sawed off shotgun treated by

all as  a working weapon.   There  is thus no  risk that  the

omission of  the length and operability  elements resulted in

the conviction of an  innocent man.  Cf. Singleton  v. United
                                                             

States, No. 92-1647, 1994 WL 242519 (1st Cir. June 10, 1994).
      

     Further,  there  is no  indication that  defense counsel

ever sought to  litigate or dispute the length or operability

of  the  weapon.    Although  a  not  guilty  plea  puts  the

government to its  proof on all elements (and  so it is error

not to instruct on all), in  practice defendants often choose

to  fight on  their strongest  grounds and  let others  go by

default.  Finally,  counsel's failure to argue  the issues in

summation or to object  to the patent omission in  the charge

implies that  the issues in  question were not  thought worth

                    

(Scalia,  J., concurring in  the judgment).   Compare Pope v.
                                                          
Illinois, 481 U.S. 497, 503 (1987).
        

                             -40-

contesting; and to reverse  on this ground would  enhance the

opportunities  for "sandbagging" the  district judge.  Taking

all  of  these  considerations  together,  we  decline  under

Olano's fourth  and  discretionary  prong  to  "notice"  this
     

"forfeited error."  Olano, 113 S. Ct. at 1778.
                         

C.   Kenneth Bartlett
                     

     Bartlett,  who was alleged to  have served as a security

worker and enforcer in the  Whiting organization, was in  the

second group of defendants that went to trial on November 19,

1991.  On the sixth day of trial, Bartlett pled guilty to one

charge of conspiracy to distribute cocaine.  Based   on   the

quantity of cocaine involved  in the conspiracy, the district

court  determined a guideline range for the offense of 262 to

327  months   and,  on  recommendation  of   the  government,

sentenced  Bartlett to  the guideline  minimum of  262 months

with a  caveat that  this sentence  run consecutively to  two

state sentences  for second degree murder  which Bartlett was

already serving.

     Bartlett's  argument on  appeal is  that  the guidelines

required that his federal  sentence run concurrently with his

state  sentences.     Since  he  failed  to   object  to  the

consecutive sentence at  the time, our  review is limited  to

plain  error.   We agree  that under  the Olano  test already
                                               

discussed,  Bartlett must  be  resentenced.   Because we  are

satisfied  that the  requisites  for plain  error review  are

                             -41-

present, we do  not reach  Bartlett's contention--raised  for

the first time on appeal--that his trial counsel's failure to

object  to  the  consecutive  sentence  violated  the   Sixth

Amendment.13

     In this  case, after  the district court  determined the

guideline range for the conspiracy charge, it then considered

whether  to   make  the   federal  sentence   consecutive  or

concurrent to  the  state sentences.   The  court found  that

although Bartlett  had been allowed to plead guilty to second

degree murder, the conduct underlying both convictions  would

have  supported   convictions   for  first   degree   murder.

Concluding  that under  Massachusetts law  Bartlett  would be

eligible for parole  in 16  years and would  probably not  be

held past that date, the court concluded the federal sentence

should run consecutively rather than concurrently.

     The governing  statute  confers broad  authority on  the

district court to determine whether a sentence is consecutive

or concurrent.  See 18 U.S.C.    3553(a), 3584(a), (b).  That
                   

discretion, however, is confined by guideline provisions that

govern this choice  where sentence is imposed on  a defendant

who  is "subject  to an  undischarged term  of imprisonment."

                    

     13Normally,  the  reasons  for  a counsel's  action  are
pertinent  and  a Sixth  Amendment  claim  cannot usually  be
determined  in  the first  instance  by  an appellate  court.
United  States v. Sanchez, 917 F.2d 607, 613 (1st Cir. 1990),
                         
cert. denied, 499 U.S. 977 (1991).
            

                             -42-

U.S.S.G.   5G1.3.14   See United States v. Flowers,  995 F.2d
                                                  

315, 316-17 (1st  Cir. 1993).  The guideline  applicable here

provides that--with  two exceptions not  now relevant15--"the

sentence for  the instant  offense  shall be  imposed to  run

consecutively to the prior  unexpired term of imprisonment to

the  extent necessary  to  achieve  a reasonable  incremental

punishment for the instant offense."  U.S.S.G.   5G1.3(c).

     The  commentary  then   provides  that  to  the   extent

practicable  the  court   should  determine  the  "reasonable

incremental  punishment"  by  determining  a  sentence  "that

results in  a combined  sentence that approximates  the total

punishment  that  would  have  been  imposed  under     5G1.2

(Sentencing on Multiple Counts of Conviction) had all of  the

offenses been federal offenses for which sentences were being

imposed at the same time."  U.S.S.G.   5G1.3, comment. (n.4).

Section 5G1.2, so far as pertinent here, directs the court to

(1)  determine the  total punishment  for multiple  counts in

                    

     14Bartlett  was  sentenced on  March  11,  1992, and  we
accordingly apply the 1991 version of the guidelines.  

     15The first exception requires a consecutive sentence in
certain  instances  (e.g.,  where   the  second  offense  was
                         
committed while the defendant  was actually serving his first
sentence)  and  the  second  exception   requires  concurrent
sentences  where  the   undischarged  term  of   imprisonment
resulted from  an offense or  offenses "that have  been fully
taken into account" in determining  the offense level for the
instant offense.  Id.     5G1.3(a), (b).  Here,  the district
                     
court  did not  consider  the murders  in setting  either the
offense level or  the criminal history category for  the drug
conspiracy offense.

                             -43-

accordance  with the  guideline grouping  rules and  (2) then

make the sentences for  the multiple counts run consecutively

"only to the extent necessary  to produce a combined sentence

equal to the total  punishment" determined under the grouping

rules.   U.S.S.G.   5G1.2(d).  See generally United States v.
                                                          

Hernandez-Coplin, No.  92-2228, slip. op. at  17-19 (1st Cir.
                

March 31, 1994).

     Section  5G1.2(c)  provides that  the  sentences  on all

counts shall  run concurrently if the sentence imposed on the

count carrying  the highest statutory maximum  is adequate to

achieve the  total punishment.   Bartlett urges  that because

his  state   sentences  were  for  life  imprisonment,  those

sentences were automatically sufficient to satisfy subsection

(c).   We believe that this  guideline refers to the  real or

effective  sentence--not to a nominal one.  After all, one of

the primary goals  of the federal  guidelines is "honesty  in

sentencing,"  whereby "the  sentence the  judge gives  is the

sentence  the offender  will  serve."   Stephen Breyer,  "The

Federal Sentencing  Guidelines and  the Key Compromises  Upon

Which They Rest," 17 Hofstra  L. Rev. 1, 4 (1988).   Bartlett
                                     

does not here dispute the finding that the state sentence was

effectively one for 16 years.

     Accordingly,   had  the  district   court  followed  the

tortuous  path prescribed  by the  guidelines, it  would have

determined  the approximate "total punishment" as if Bartlett

                             -44-

was  being  sentenced on  both state  murder charges  and the

federal  drug conspiracy charge  at the same  time in federal

court.  The grouping rules forbid treating murders as closely

related counts with  each other or  other crimes, U.S.S.G.   

3D1.2,  and  the  second-degree  murders each  carry  a  base

offense  level of  33.   U.S.S.G.    2A1.2(a).   Although the

government points  to the  district court's finding  that the

underlying  conduct  supported  convictions for  first-degree

murder,   a  sentencing  court   under  the  guidelines  must

determine the applicable guideline  "by looking to the charge

of which  the  offender was  convicted."   United  States  v.
                                                         

Blanco, 888 F.2d 907, 910 (1st Cir. 1989).
      

     Under  the "combined  offense level"  formula, combining

these  three   offense  levels--36   for  the   federal  drug

conspiracy and 33 each for the two murders--produces  a total

offense  level of  39.    U.S.S.G.     3D1.4(a).16    A  base

offense  level  of  39,  combined  with  Bartlett's  criminal

history  category of  four, yields  a guideline range  of 360

months to life.  See U.S.S.G. Ch. 5 Pt. A (Sentencing Table).
                    

In exercising  its discretion, the district  court could have

chosen any figure within this  range as the appropriate total

                    

     16This formula is intricate  but mechanical.  One starts
with  the highest offense level (here 36) and increases it by
a number  of levels based on  a table of "units."   Here, the
number of  units was three--one  for the drug  conspiracy and
one  each for the murders--and three units is equal under the
table to an increase of three levels.  U.S.S.G.   3D1.4.

                             -45-

punishment  for  the drug  conspiracy  and  two second-degree

murder convictions.  Then, given its estimate that the murder

convictions represented  192 months  (12 times 16  years), it

should have imposed  a sentence for  the drug conspiracy  and

had it  run consecutively "only  to the extent  necessary" to

make the resulting total period of incarceration equal to the

total  punishment that would have  been imposed had all three

crimes been sentenced at the same time.  U.S.S.G.   5G1.2.

     While one gulps at  using the term "plain" error  in the

face of this morass  of rules, the district  court's approach

stands the guideline process  on its head.  Here,  instead of

calculating the proper total  punishment for all three crimes

and then  making the  actual federal sentence  consecutive to

the  extent  needed  to  produce a  comparable  outcome,  the

district court computed a sentence for the drug offense alone

and  then made  a single  yes-or-no choice  between  a wholly

concurrent and  a  wholly consecutive  sentence.   This is  a

fundamental departure  from  the  structure  imposed  by  the

guidelines.

     We  also have no hesitation in concluding that the error

probably affected the sentence.   Although the district court

might  (as a matter of  mathematics) have arrived  in a total

punishment identical to that prescribed--namely, an effective

estimated sentence  of 454 months  (192 months for  the state

offenses plus  262 months for the  federal offense)--the odds

                             -46-

of this happening seem to us remote.  Here the binary choice-

-either  to make the  sentence consecutive  or concurrent--is

quite likely to have constrained the district court's choice,

and (as it proved) not to the defendant's advantage.

     The Supreme Court has  said that even if plain  error is

shown  to  have affected  the  outcome,  the reviewing  court

retains  constrained discretion  whether or  not to  reverse.

See  Olano, 113 S.  Ct. at 1778-79.   In this  case, we think
          

that that discretion should be exercised in favor of a remand

for resentencing,  fully recognizing that  the defendant  may

not in  the end profit from  this effort.  Our  reason is not

that this  error "affects  the fairness, integrity  or public

reputation of judicial proceedings."  Rather, in this case we

think it is very likely that the resentencing could produce a

different  and  more  favorable   sentence.17    If  so,  the

situation  corresponds mutatis  mutandis  to one  in which  a
                                        

forfeited error may have caused the conviction of an innocent

person, the  other rubric under which a plain and prejudicial

error should  be noticed  on appeal.   Olano,  113 S. Ct.  at
                                            

1779.  We add that the burden in resentencing is light.

                          CONCLUSION
                                    

                    

     17If  the district  court had  desired to give  a longer
sentence, it could easily have  chosen a federal term greater
than  the guideline minimum.  Thus, if the district court did
feel  constrained  by  the  binary  choice,  it  was  in  the
direction of imposing  a sentence greater than it  would have
preferred.

                             -47-

     The convictions and  sentences of  Darryl Whiting,  Sean

Dixon,  Renaldo Pledger, Edwin  Carmichael, Steven Wadlington

and  William Bowie  are affirmed.   The  sentence of  Kenneth
                                

Bartlett  is   vacated  and   the  matter  is   remanded  for
                                                        

resentencing.

                             -48-
