
USCA1 Opinion

	




        September 29, 1992       ____________________        September 29, 1992       ____________________        No. 91-2232        No. 91-2232                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                             ANDRES GABRIEL BELLO-PEREZ,                             ANDRES GABRIEL BELLO-PEREZ,                                     a/k/a GARBY,                                     a/k/a GARBY,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Norman H. Stahl, U.S. District Judge]                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                                 ____________________                                 ____________________                                        Before                                        Before                            Cyr and Boudin, Circuit Judges,                            Cyr and Boudin, Circuit Judges,                                            ______________                             and Hornby,* District Judge.                             and Hornby,* District Judge.                                          ______________                                 ____________________                                 ____________________             Martin  D. Harris with whom Damon M. D'Ambrosio, Joseph Dugan and             Martin  D. Harris with whom Damon M. D'Ambrosio, Joseph Dugan and             _________________           ___________________  ____________        Martin D. Harris, Esquire, Ltd. were on brief for appellant.        Martin D. Harris, Esquire, Ltd. were on brief for appellant.        _______________________________             Robert  J. Veiga,  Assistant  United States  Attorney, with  whom             Robert  J. Veiga,  Assistant  United States  Attorney, with  whom             ________________        Jeffrey R.  Howard, United  States Attorney, and  David A.  Vicinanzo,        Jeffrey R.  Howard, United  States Attorney, and  David A.  Vicinanzo,        __________________                                ___________________        Assistant United States Attorney, were on brief for appellee.        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                                 ____________________                                 ____________________                                    ____________________        *Of the District of Maine, sitting by designation.        *Of the District of Maine, sitting by designation.                              CYR, Circuit  Judge.  Along with  thirteen other defen-                    CYR, Circuit  Judge.                         ______________          dants, appellant Andres  Bello-Perez was charged with  conspiring          to distribute cocaine in  violation of 21 U.S.C.   846.   Finding          no error in the indictment, trial or sentence, we affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Viewing the evidence in the light most favorable to the          government, see United States v. David, 940 F.2d 722, 732-33 (1st                      ___ _____________    _____          Cir.  1991), cert.  denied,  112 S.  Ct.  605 (1991),  and  cert.                       ____   ______                             ___  ____          denied, 112  S. Ct. 908 (1992), and cert. denied, 112 S. Ct. 1298          ______                          ___ ____  ______          (1992), and cert. denied,  112 S. Ct. 2301 (1992);  United States                  ___ ____  ______                            _____________          v. Rivera-Santiago,  872 F.2d 1073, 1078-79 (1st  Cir. 1989), the             _______________          jury could have found the following facts.                    Beginning in  the fall  of 1987, New  York-based Bello-          Perez, with the  aid of his  girlfriend, Paula Beltran,  supplied          Peter Clark, first directly  and then through a series  of couri-          ers, with  large quantities of cocaine for resale through Clark's          network of dealers in  northeastern Massachusetts and coastal New          Hampshire.   By late 1987, Bello-Perez had become Clark's princi-          pal  source, supplying on average  one to one  and one-half kilo-          grams weekly.            One  of  Clark's lieutenants  was Edward          Murley, who  assisted Clark  by distributing cocaine  supplied by          Bello-Perez and by collecting payments from purchasers throughout          Clark's  distribution  area.   During  the second  half  of 1988,                                          2          Murley estimated that he came in direct contact with  Bello-Perez          at least seven times.                    On December 7,  1988, Peter  Clark was arrested  with a          kilogram  of cocaine  in  his possession.    The seizure  of  the          cocaine left  Clark owing Bello-Perez  approximately $14,000,  in          part payment of which  Murley delivered Bello-Perez $3,000 raised          by  Deborah Panneton,  Clark's common-law  wife.   Murley himself          owed  Clark $2,000,  which Bello-Perez  instructed Murley  to pay          directly to him.   Since Murley did not have  the cash, he agreed          to sell approximately four and one-half ounces of cocaine "front-          ed" to him by Bello-Perez.  The net proceeds were applied against          the Clark debt to Bello-Perez.                    As the money raised from these sources was insufficient          to compensate him for the cocaine seized from Clark, Bello-Perez,          in  the company  of Beltran  and a  Dominican male  named "Tony,"          drove north with Murley  and began collecting Clark's  drug debts          directly  from Clark's  customers.   Luke  Bixby, one  of Clark's          helpers,  was brought to Murley's house and taken into a bathroom          by Bello-Perez and Beltran.  Bixby emerged visibly shaken.  While          Tony stood nearby with an Uzi submachine gun, Bixby began placing          telephone calls to Clark's customers, urging them to bring Bello-          Perez  the money  they owed  Clark.   In further  satisfaction of          Clark's debt, Bello-Perez, accompanied  by Tony (toting the Uzi),          seized Clark's  Trans Am automobile from  another Clark confeder-          ate,  and the  next day,  again at  gunpoint, forced  Panneton to          relinquish title to the car.                                          3                    In the weeks following Clark's arrest, Murley and other          former  Clark associates  stepped  forward to  take over  Clark's          distribution network.   Murley's first drug  purchase from Bello-          Perez followed  Clark's  arrest  by only  three  weeks.    Murley          testified that,  through couriers  (including some who  had dealt          with Bello-Perez in behalf  of Clark), he purchased approximately          nine  ounces of cocaine from Bello-Perez every two weeks.  Begin-          ning in March 1989,  Bello-Perez (and occasionally Beltran) would          visit Murley in New Hampshire every week or ten days,  to collect          drug payments and oversee Murley's drug distribution network.  On          occasion, Bello-Perez would deliver  drugs directly to members of          Murley's network to sell, bypassing Murley altogether.                    On  May 22,  1989, the  Murley  distribution chain  was          infiltrated  by an undercover  agent for the  New Hampshire State          Police,  who arranged to purchase an ounce of cocaine from Murley          for $1,000.  The  agent observed Paula Beltran in  Murley's pres-          ence when the deal was negotiated; Murley ultimately gave Beltran          the agent's $1,000  in satisfaction  of a drug  debt owed  Bello-          Perez.   On November 2-3, 1989, the Murley  chain was infiltrated          again, this time by a former Clark confederate who had  agreed to          cooperate with the U.S.  Drug Enforcement Administration.  Murley          agreed  to sell the federal informant four and one-half ounces of          cocaine for $4,200.  Bello-Perez, who was present at the time  of          the transaction, again supplied  the cocaine.  On November 8  and          15, 1989, the  same federal  informant purchased  nine ounces  of          cocaine from  Murley, who  once again obtained  the cocaine  from                                          4          Bello-Perez.   On November 6, 1990, following  further investiga-          tion, Bello-Perez was arrested.                    Count I of the indictment charged as follows:                    Beginning at an unknown  date but at the lat-                    _________ __ __ _______  ____ ___ __ ___ ____                    est by August,  1988, and continuing thereaf-                    ___ __ ______   ____  ___ __________                    ter up to and  including January 17, 1991, in                           __                _______ __  ____                    the  District of New Hampshire and elsewhere,                    ANDRES GABRIEL BELLO-PEREZ [and  thirteen co-                    defendants]  . . . did  knowingly and  inten-                    tionally  combine,  conspire  and agree  with                    each other and with others known  and unknown                    to the Grand Jury,  to possess with intent to                    distribute  and  to distribute  quantities of                    cocaine,  a  Schedule II  narcotic controlled                    substance, and marihuana, a Schedule I hallu-                    cinogenic controlled  substance, in violation                    of  Title  21,  United States  Code,  Section                    841(a)(1).2  (Emphasis added.)                    Four  days  before  trial,  Bello-Perez'  attorney  was          provided  with approximately  1,000 documents,  including several          which implicated  Bello-Perez  in a  conspiracy  involving  Peter          Clark and  dating from  the late  fall of  1988.   On the  day of          trial, government counsel supplied defense counsel with addition-          al statements  indicating that Clark would  testify and implicate          Bello-Perez in  cocaine sales  during 1988 and  extending through          December 1989.  Following the two and one-half week trial, during          which Clark, Beltran, Murley  and a number of  other co-conspira-          tors testified,  Bello-Perez was  convicted and sentenced  to 360          months  in prison.    We turn  to the  numerous claims  raised on          appeal.                                        ____________________               2The marijuana charges were dropped.                                          5                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.  Variance          A.  Variance              ________                    The indictment  does not  mention Peter Clark  by name.          Rather, it  alleges generally that Bello-Perez was  involved in a          conspiracy  beginning at  an "unknown"  date, "at  the latest  by          August  1988," names  a  number of  alleged co-conspirators,  and          specifies various overt acts involving (most prominently)  Edward          Murley.  Bello-Perez contends that the conspiracy  which began in          1987, led by Peter  Clark, was distinct from any  conspiracy that          existed  after Clark's arrest in late 1988, with Edward Murley at          its  helm.   Bello-Perez  therefore  argues  that the  indictment          afforded  insufficient  notice of  the government's  intention to          present  evidence  relating  to  the Clark  conspiracy.    Citing          Kotteakos  v. United  States,  328 U.S.  750 (1946),  Bello-Perez          _________     ______________          contends that his defense against what he regards as the separate          and distinct  "Murley conspiracy" was unfairly  prejudiced by the          evidence relating to the uncharged "Clark conspiracy."  We reject          the premise underlying his contention.                    Whether the evidence  adduced at trial established  one          or more  conspiracies was a question  of fact for the  jury.  See                                                                        ___          David,  940 F.2d at 732, 735;  United States v. Drougas, 748 F.2d          _____                          _____________    _______          8, 17 (1st Cir. 1984).  In order to find a single conspiracy, the          jury need  have found  only that  Clark, Murley  and Bello-Perez,          pursuant  to  their tacit  or  express  agreement, knowingly  and          intentionally  "directed their efforts towards the accomplishment                                          6          of  a  common goal  or overall  plan"  to commit  the substantive          offense charged  in the indictment, i.e.,  possessing cocaine for                                              ____          distribution.  Rivera-Santiago, 872 F.2d at 1079 (quoting Drouga-                         _______________                            _______          s, 748 F.2d at 17); United States v. Giry, 818 F.2d 120, 127 (1st          _                   _____________    ____          Cir.), cert. denied, 108 S. Ct. 162 (1987).  The jury was permit-                 ____  ______          ted to consider a  wide range of factors, including  "the nature,          design, implementation,  and logistics  of the illegal  activity;          the participants' modus operandi; the relevant geography; and the          scope of  coconspirator involvement."   United States  v. Boylan,                                                  _____________     ______          898  F.2d 230,  241 (1st  Cir.),  cert. denied,  111  S. Ct.  139                                            ____  ______          (1990); see also David,  940 F.2d at 734 ("no  mechanical test");                  ___ ____ _____          Rivera-Santiago, 872 F.2d at 1079.  It was not necessary for  the          _______________          jury to find that the alleged coconspirators joined the conspira-          cy at the same time,  see United States v. Kelley, 849  F.2d 999,                                ___ _____________    ______          1003  (6th  Cir.),  cert. denied,  488  U.S.  982  (1988) (single                              ____  ______          conspiracy  can  be  found even  where  "the  cast of  characters          changed over the course  of the enterprise"), or shared  the same          knowledge, beyond  the  tacit understanding  that  their  illicit          agreement existed, see  United States v.  Sanchez, 917 F.2d  607,                             ___  _____________     _______          610 (1st Cir.  1990), cert. denied,  111 S. Ct.  1637, and  cert.                                ____  ______                     ___  ____          denied,  111 S.  Ct.  2809 (1991);  Rivera-Santiago, 872  F.2d at          ______                              _______________          1079.  Nor need the participants in the illicit scheme have known          all their coconspirators, see  Rivera-Santiago, 872 F.2d at 1079;                                    ___  _______________          Giry, 818 F.2d  at 127;  United States v.  Moosey, 735 F.2d  633,          ____                     _____________     ______          635-36 (1st Cir. 1984), or have participated at  the same time in          the furtherance of  their criminal venture, see United  States v.                                                      ___ ______________                                          7          Aponte-Suarez, 905 F.2d 483, 488 (1st Cir.), cert. denied, 111 S.          _____________                                ____  ______          Ct.  531 (1990), and cert. denied, 111  S. Ct. 975 (1991); United                           ___ ____  ______                          ______          States  v. Cintolo, 818 F.2d  980, 997 (1st  Cir.), cert. denied,          ______     _______                                  ____  ______          484 U.S.  913 (1987).   What was essential  is that the  criminal          "goal or overall plan"  have persisted without fundamental alter-          ation, notwithstanding variations  in personnel and  their roles.          See,  e.g.,  United  States v.  Aponte-Suarez,  905  F.2d at  488          ___   ____   ______________     _____________          (finding  single  conspiracy  even  though  initial  venture  was          thwarted, where conspirators adapted  same conspiratorial plan to          new circumstances).                    At the request of Bello-Perez, without objection by the          government, the  jury was instructed  to consider whether  one or          more conspiracies existed,  and to return  a verdict against  the          defendant only if  it found  a single conspiracy.3   Thus,  there          can  be no question that the jury squarely rejected the multiple-          conspiracy claim.  Accordingly,  as Bello-Perez did not  move for          judgment of acquittal,  see, e.g., United States v.  Concemi, 957                                  ___  ____  _____________     _______                                        ____________________               3We quote the pertinent portion of the jury charge:               You  must keep  in mind  that the defendant  is charged               with involvement  in a single conspiracy.   The govern-               ment must prove the  existence of the single conspiracy               charged in Count I of the indictment.  If you find from               the  evidence that there  existed separate conspiracies               rather than a single  conspiracy, then you must acquit.               Before you can conclude that a single conspiracy exist-               ed, you must be convinced that the alleged conspirators               directed  their efforts  towards the  accomplishment of               the common goal or overall plan described in Count I of               the indictment . . . .  In determining whether a single               conspiracy existed, you may  consider the nature of the               illegal activity alleged in  the indictment, the method               of operation and the scope and overlap of the conspira-               tor involvement.                                          8          F.2d  942, 950 (1st Cir.  1992); United States  v. Greenleaf, 692                                           _____________     _________          F.2d  182, 185  (1st  Cir. 1982),  cert.  denied, 460  U.S.  1069                                             ____   ______          (1983), the present challenge to the sufficiency of  the evidence          supporting the jury's single-conspiracy finding must  fail absent          a  showing of "clear and  gross injustice," id.;  see also United                                                      ___   ___ ____ ______          States  v. McDowell, 918 F.2d 1004,  1009 (1st Cir. 1990).  Since          ______     ________          we are  convinced that a rational trier of fact could have found,          beyond  a reasonable doubt, that there was but one conspiracy, we          conclude, a  fortiori, that  no "clear  and gross  injustice" oc-                    _  ________          curred.  See United  States v. Arango-Echeberry, 927 F.2d  35, 38                   ___ ______________    ________________          (1st Cir. 1990); see also McDowell, 918 F.2d at 1009.                           ___ ____ ________                    We consider the evidence in the light most favorable to          the verdict with a view to whether it was sufficient to satisfy a          rational trier of  fact beyond  a reasonable doubt.   See,  e.g.,                                                                ___   ____          United States v. Tejeda, Nos. 91-1332  & 1388, slip op. at 4 (1st          _____________    ______          Cir. September 1, 1992).   The evidence revealed that  Murley and          Clark began  their collaboration  during 1987, with  Murley later          emerging as a lieutenant in Clark's cocaine distribution network.          Murley and other conspirators (including Bello-Perez and Beltran)          stepped into  (or resumed)  leadership roles in  the considerably          smaller  distribution  network  which  persisted  notwithstanding          Clark's  arrest.   Due in  considerable measure  to  the criminal          initiative and diligence of  Bello-Perez, the essential structure          and function  of the illicit  enterprise previously led  by Clark          proceeded  apace under  new management,  dominated by  a familiar          "core"  of conspirators who survived Clark's arrest.  See Kelley,                                                                ___ ______                                          9          849  F.2d at  1003 (upholding  "single conspiracy"  finding "even          where  the  cast of  characters changed  over  the course  of the          enterprise").   Although their  roles in the  criminal enterprise          may  have  changed,  their  modus  operandi remained  essentially                                      _____  ________          unchanged.  See Boylan,  898 F.2d at 242.   Bello-Perez continued                      ___ ______          to supply  Clark's former  lieutenant,  Murley, with  substantial          quantities of cocaine on a regular  basis, for distribution among          some  of the  smaller dealers  in northeastern  Massachusetts and          coastal New Hampshire previously supplied by Clark.                    More to  the present point, the temporal  bounds of the          conspiracy alleged in the  indictment fairly encompassed the pre-          Clark  arrest period as well as the post-arrest period.  Although          Clark  was not a named  conspirator,4 the indictment alleged that          the  conspiracy began  at an  "unknown" date,  "at the  latest by          August,  1988"    a time when Clark clearly remained in charge of          the distribution network supplied  by Bello-Perez, and Murley was          serving  as Clark's  lieutenant.5   Finally,  contrary to  Bello-                                        ____________________               4See United States v.  Penagaricano-Soler, 911 F.2d 833, 840                ___ _____________     __________________          n.5 (1st  Cir. 1990) ("[w]here  . . . the indictment  alleges the          unlawful  agreement with sufficient  particularity, the defendant          is not denied adequate  notice of the charge merely  by virtue of          the failure to name all co-conspirators.").               5Moreover, the fact that the indictment charged a conspiracy          beginning  at an "unknown" date,  "at the latest  by August 1988"                                             __ ___ ______          (emphasis  added),  did  not  preclude  the  evidence  (including          Clark's testimony) relating to events predating August 1988.  See                                                _________ ______ ____   ___          United  States  v. Crocker,  788 F.2d  802,  805 (1st  Cir. 1986)          ______________     _______          ("approximate  dates in  an  indictment  are  not  controlling");          United  States v.  Morris, 700  F.2d 427,  429 (1st  Cir.), cert.          ______________     ______                                   ____          denied, 461 U.S.  947 (1983) ("Where  a particular date is  not a          ______          substantive element  of the crime  charged, strict  chronological          specificity or accuracy is not required.").                                          10          Perez'  contention,  the fact  that  the majority  of  overt acts          detailed in the indictment took place after Clark's arrest is not          determinative.   The government is not required to plead or prove          any overt act in furtherance of a section 846 conspiracy.  United          ___                                                        ______          States v. Arboleda, 929  F.2d 858 (1st Cir. 1991);  United States          ______    ________                                  _____________          v.  Williams, 809 F.2d 75, 80  (1st Cir. 1986), cert. denied, 481              ________                                    ____  ______          U.S. 1030 (1987).     Although overt acts  are "gratuitously  set          forth in  the indictment,"  Aponte-Suarez, 905 F.2d  at 488,  the                                      _____________          government is not limited at trial to proof of the  alleged overt          acts; nor is the indictment rendered insufficient for failure  to          plead other overt acts.          B.  Motion to Dismiss          B.  Motion to Dismiss              _________________                    Bello-Perez  moved  to dismiss  the  indictment  on the          additional ground that he was unfairly surprised by delayed  dis-          closure of Clark's role in  the conspiracy (and Clark's impending          testimony).6   The  district court  properly rejected  the claim.          First,  disclosure was  not impermissibly  delayed.   Immediately          prior to  jury empanelment,  the government disclosed  that Clark          was a  potential prosecution witness, and  made available Clark's          prior statements.  Contrary to  Bello-Perez' implicit assumption,          there  is no  constitutional  or statutory  requirement that  the                                        ____________________               6As we have stated,  the alternate ground for the  motion to          dismiss     that the admission of Clark's  testimony engendered a          "fatal variance"  between the crime charged in the indictment and          the proof  presented at trial     is groundless.  In  the present          case,  the appropriate relief, if  any, was not  dismissal of the          indictment but exclusion of  Clark's testimony.  Bello-Perez does          not challenge the district court ruling which declined to exclude          the Clark testimony.                                          11          identity of prosecution witnesses  be disclosed before trial, see                                                                        ___          United States v. Reis,  788 F.2d 54, 58  (1st Cir. 1986);  United          _____________    ____                                      ______          States  v. Barrett, 766 F.2d  609, 617 (1st  Cir.), cert. denied,          ______     _______                                  ____  ______          474 U.S. 923 (1985);  nor, under the Jencks Act,  was the govern-          ment required to produce the prior statements  of its prospective          witnesses  until  after  their  direct examination.    18  U.S.C.            3500(a); United States v.  Arboleda, 929 F.2d 858,  862-63 (1st                     _____________     ________          Cir.  1991); United States v.  Grandmont, 680 F.2d  867, 874 (1st                       _____________     _________          Cir. 1982).                    Moreover, even if Bello-Perez had shown unfair surprise          resulting  from disclosure of the Clark evidence so near the time          of trial, the appropriate procedural relief in these circumstanc-          es would not  have been  the dismissal of  the indictment, but  a          continuance  of the trial to  permit defense counsel  to meet the          surprise evidence.   Bello-Perez  did not request  a continuance,          let alone demonstrate grounds warranting dismissal of the indict-          ment.  See United States  v. Osorio, 929 F.2d 753, 758  (1st Cir.                 ___ _____________     ______          1991)  ("Generally, we  have  viewed the  failure  to ask  for  a          continuance  as an  indication that  defense counsel  was himself          satisfied [that]  he had sufficient  opportunity to use  the evi-          dence advantageously") (citing cases).          C.  Evidentiary Claims          C.  Evidentiary Claims              __________________                    Bello-Perez  next asserts a right to a new trial due to          alleged errors  in the admission of  various government exhibits,          including  a photograph of a kilogram of cocaine and a photograph          of Bello-Perez in the company of Clark and Murley.                                          12                                          13                    1.  Photograph of Cocaine                    1.  Photograph of Cocaine                        _____________________                    During Peter Clark's direct  testimony on the first day          of  trial, the  government offered  a photograph  depicting Clark          holding a kilogram of cocaine.  The photograph was admitted, over          objection, at least initially for the purpose of showing the jury          what  a kilogram of cocaine  looked like.   Later, however, Clark          testified that the  cocaine depicted in  the photograph had  been          bought from  Bello-Perez.  Bello-Perez argues  that the probative          value  of  the photograph  was  substantially  outweighed by  its          prejudicial effect.  See Fed. R. Evid. 403.                               ___                    A trial court's decision to  admit evidence over a Rule          403 objection  is accorded considerable deference.   "Only rarely             and  in extraordinarily  compelling circumstances     will we,          from the vista  of a  cold appellate record,  reverse a  district          court's on-the-spot judgment concerning  the relative weighing of          probative value and  unfair effect."   Freeman  v. Package  Mach.                                                 _______     ______________          Co.,  865 F.2d  1331,  1340 (1st  Cir.  1988); see  also Doty  v.          ___                                            ___  ____ ____          Sewall, 908 F.2d  1053, 1059 (1st Cir.  1990) (extremely deferen-          ______          tial standard,  "perhaps even  higher" than abuse  of discretion)          (citing S. Childress & M. Davis, 1 Standards of Review).  Even if           ______                            ___________________          we were persuaded that the photograph somehow unfairly prejudiced                                                        ________          Bello-Perez,  we could  not  conclude that  any unfair  prejudice          substantially  outweighed the  probative value.   The  photograph          tended to corroborate the  testimony of a key government  witness          relating to the distribution of large quantities of cocaine.  Cf.                                                                        ___          United  States v. Gonzalez, 933 F.2d 417, 427 (7th Cir. 1991) (no          ______________    ________                                          14          error in  displaying large quantity of seized  cocaine, to assist          jury in understanding logistics of transportation and impossibil-          ity of personal use).                    2.  Photograph of Murley, Clark and Bello-Perez                    2.  Photograph of Murley, Clark and Bello-Perez                        ___________________________________________                    The  district court  admitted a  photograph of  Murley,          Clark  and  Bello-Perez  with  their  arms  around  each  other's          shoulders.   Bello-Perez objected on  the ground  that no  proper          foundation had been  laid for the introduction of the photograph,          whereas in fact it is the objection which was without foundation.          Clark  testified that the photograph was taken in his living room          during the  last half of  1988; i.e.,  during the  course of  the                                          ____          conspiracy alleged in the indictment.  See Lucero v. Stewart, 892                                                 ___ ______    _______          F.2d  52, 55  (9th  Cir. 1989)  (approximate  date of  photograph          adequate for authentication).                    On appeal, Bello-Perez asserts  for the first time that          the photograph should have been excluded under  Rule 403.  As the          objection  was  not preserved  below,  we review  only  for plain          error, "a demonstration that justice  has miscarried or that  the          trial's basic fairness has  been compromised."  United States  v.                                                          _____________          Hadfield, 918 F.2d 987, 995 (1st Cir. 1990), cert. denied, 111 S.          ________                                     ____  ______          Ct.  2062 (1992).  As  the photograph itself,  simply depicting a          friendly  meeting among  the  alleged conspirators,  portended no          unfair prejudice whatever, the claim is frivolous.                    3.  Photocopies of Notebooks and Papers                    3.  Photocopies of Notebooks and Papers                        ___________________________________                                          15                    Bello-Perez  challenges the admission of photocopies of          certain  documents seized  at the  time of  Clark's arrest.   The          documents  contained  clearly  relevant   information  concerning          Clark's cocaine  distribution operations and drug  debts, as well          as  Bello-Perez' telephone  and beeper  numbers.   As Bello-Perez          identifies no  unfair prejudice  resulting from the  admission of          the  information  in these  documents, and  we discern  none, the          claim is rejected.7                    4.   Photographs of Bello-Perez                    4.   Photographs of Bello-Perez                         and Associates in Santo Domingo                         and Associates in Santo Domingo                         _______________________________                    Bello-Perez  contends  that   several  photographs               depicting Bello-Perez,  Murley and  Robinson in Santo  Domingo             were irrelevant,  particularly a  photograph of Murley  holding a          firearm.   Murley  later testified,  without  contradiction, that          Bello-Perez had  given him the  gun.  We  find no merit  to these          claims, as all the                                         ____________________               7Although Bello-Perez asserts on appeal that the photocopies          were not properly authenticated, Clark vouched at trial that each          photocopy represented a fair and accurate reproduction.  See Fed.                                                                   ___          R. Evid. 101(4).  Thus, this claim too is frivolous.               Some of  the documents  were in  the handwriting  of Deborah          Panneton, Clark's common-law  wife.   Bello-Perez complains  that          "there  was no testimony that Clark  could authenticate her hand-          writing or  was familiar  therewith."  These  documents     found          among Clark's personal papers  and reflecting Clark's handwriting          as well  as Panneton's    contained  sufficient intrinsic indicia          of authorship to permit their authentication by  Clark under Fed.          R. Evid. 901(a); see  also id. 901(b)(1), (4); Drougas,  748 F.2d                           ___  ____ ___                 _______          at  26  (authentication of  handwritten  lists  of coconspirators          through "the source of the [lists], the circumstances surrounding          their  seizure, the  fact  that the  information corresponded  to          other evidence  of the participants  in the  conspiracy, and  the          extreme  unlikelihood that such a  list would be  prepared by one          not privy to the operations of the conspiracy").                                          16          photographs tended to corroborate  Murley's testimony that he and          Robinson were closely associated with Bello-Perez.                    5.  Travel Documents                    5.  Travel Documents                        ________________                    At trial, Bello-Perez asserted a relevancy challenge to          the  introduction of Murley's boarding pass for the trip to Santo          Domingo, and  a travel document containing  certain Santo Domingo          telephone  numbers Murley received  from Bello-Perez during their          trip.  Bello-Perez has  failed to mount any "effort  at developed          argumentation"  in support of this  claim.  See  United States v.                                                      ___  _____________          Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 110 S. Ct. 1814          _______                             ____  ______          (1990)  (claim  deemed waived  in  such circumstances).    In any          event,  the  challenged  exhibits  clearly  corroborate  Murley's          testimony  that  the conspirators  associated closely  during the          course of the conspiracy.                    6.  Anonymous Letter                    6.  Anonymous Letter                        ________________                    Bello-Perez objected to  the introduction of an  anony-          mous letter,  not  written in  Bello-Perez'  handwriting,  urging          Murley not to  implicate the author in drug dealing.   The objec-          tion was based  on lack of authentication.   Anonymous correspon-          dence may  be sufficiently  distinctive in its  "appearance, con-          tents, substance, internal patterns  or other distinctive charac-          teristics,"  within the meaning  of Fed.  R. Evid.  901(b)(4), to          meet  the  authentication  requirement.   See  United  States  v.                                                    ___  ______________          Ingraham,  832 F.2d 229, 236  (1st Cir. 1987),  cert. denied, 486          ________                                        ____  ______          U.S. 1009 (1988) (authentication  of telephone call and anonymous                                          17          letters based  on caller-author's  "peculiar obsession  with [and          approach to] the same obscure  litigation," amounting to an idio-          syncratic "signature");  see also  United States v.  McMahon, 938                                   ___ ____  _____________     _______          F.2d 1501,  1508-09 (1st  Cir. 1991) (authentication  of unsigned          note  based  on  circumstantial  indicia  of  authorship); United                                                                     ______          States  v. Newton, 891 F.2d 944, 947 (1st Cir. 1989) (authentica-          ______     ______          tion of unsigned document based on internal references to defend-          ant's girlfriend, wife, lawyer and aliases).                    There was ample circumstantial evidence that the letter          originated  with Bello-Perez.  The given name of the addressor on          the envelope, though unclear, appears to be "ANDREWS" or "ANDREU-          S",  similar to  Bello-Perez'  first name  "Andres".   The return          address inside the letter  gives the post office box of the state          prison  where Bello-Perez  was incarcerated  pending trial.   The          author  identifies himself  as an  Hispanic; Bello-Perez  was the          only Hispanic state-prison  inmate known to  Murley.  The  author          plainly  implies that he is  facing drug charges  and that Murley          might  be  asked to  testify against  him.   Finally,  the letter          includes statements  about family problems  known to Bello-Perez.          In light of these indicia  of Murley's authorship, the discrepan-          cies adverted  to by the defense  went to the weight  of the evi-          dence, not its admissibility.  See Ingraham, 832 F.2d at 233.                                         ___ ________                    7.  Beltran Testimony                    7.  Beltran Testimony                        _________________                    Paula Beltran, Bello-Perez'  girlfriend, twice  blurted          out at trial that Bello-Perez had sustained a gunshot wound in an          event unrelated to  the alleged conspiracy.   The district  court                                          18          denied the ensuing motion for mistrial, choosing instead on  each          occasion to give a cautionary jury instruction.                    Motions  for  mistrial address  the  discretion  of the          trial court.   United  States v.  Chamorro,  687 F.2d  1, 6  (1st                         ______________     ________          Cir.), cert.  denied,  459 U.S.  1043  (1982); United  States  v.                 ____   ______                           ______________          Pappas, 611 F.2d 399, 406 (1st Cir. 1979).  There was no abuse of          ______          discretion  in this instance.   First, there is  no evidence that          Beltran's  statements were deliberate, or the result of bad faith          on  the part  of  the government  or  its witness.    Bello-Perez          nevertheless urges  that Beltran's statements left  the jury with          the  "unmistakable impression" that  Bello-Perez was  involved in          violent activities.  In our view, however, such an impression was          neither  inevitable nor unmistakable, considering the context, as          Beltran merely mentioned the gunshot wounds, not  their source or          the  surrounding  circumstances.    Second,  through  independent          evidence Bello-Perez already had been tied  to the possession and          use  of  firearms.   Third,  the  independent  evidence of  guilt          against  Bello-Perez  was overwhelming.    See  United States  v.                                                     ___  _____________          Sclamo, 578 F.2d  888, 891  (1st Cir. 1978)  (denial of  mistrial          ______          inappropriate in light of cautionary instruction and "strong case          and substantial  evidence produced by the  government"); see also                                                                   ___ ____          United States v. Scelzo, 810 F.2d 2, 5 (1st Cir. 1987) (consider-          _____________    ______          ing "extremely strong" case against defendant in upholding denial          of  mistrial).  Finally, we conclude that any significant risk of          unfair prejudice resulting from Beltran's statements was "effica-                                          19          ciously  dispelled" by  the  district  court's strong  cautionary          instructions.  See Chamorro, 687 F.2d at 6.                         ___ ________          D.  Sentencing          D.  Sentencing              __________                    Bello-Perez  advances various  challenges  to the  360-          month  sentence imposed by the district court.  First, he asserts          that the court erred in calculating the base offense level at  36          (50-150 kilograms of cocaine), see U.S.S.G.   2D1.1(c)(4), rather                                         ___          than  at base level 34  (15-50 kilograms), see id.   2D1.1(c)(5).                                                     ___ ___          The  crux of the  claim is that  he distributed no  more than 7.5          kilograms  to Murley between 1988 and 1990, and that the sentenc-          ing  judge improperly  considered the  much larger  quantities of          cocaine previously  distributed in furtherance of  the putatively          separate conspiracy  involving Peter  Clark.8   As we  reject the          "separate  conspiracy" theory,  see supra  part IIA,  the present                                          ___ _____          claim must fail.  See United States v. Moreno, 947 F.2d 7, 9 (1st                            ___ _____________    ______          Cir. 1991)  (sentencing court  may consider "quantities  . . . of                                        ____________________               8The presentence investigation report, which credits Clark's          testimony that  he had  obtained approximately 1.5  kilograms per          week  from  Bello-Perez, ascribed  a  total  of approximately  80          kilograms of cocaine to Bello-Perez during Clark's involvement in          the  conspiracy.    On  appeal,  Bello-Perez  challenges  Clark's          estimates as "inconsistent and contradictory."  The resolution of          any conflict in Clark's estimates was for the trier of fact.  See                                                                        ___          United States v. Ruiz, 905 F.2d 499,  508 (1st Cir. 1990) ("[T]he          _____________    ____          sentencing court's  choice among supportable  alternatives cannot          be  clearly erroneous.").  We note, moreover, that even if Bello-          Perez  had distributed  only 0.9 kilograms  of cocaine  weekly to          Clark    an amount  well within the estimate Bello-Perez  himself          cites    Bello-Perez would be accountable for over 42.5 kilograms          during  the  course of  the  Clark conspiracy.    Accordingly, in          combination  with the  7.5 kilograms  distributed to  Murley, the          minimum  50 kilogram  quantity required  to trigger  base offense          level 36 was met.                                          20          [cocaine]  not specified in the count of conviction . . . if they          were  part of the same course of  conduct or  . . . common scheme          or plan as the count of conviction."), citing U.S.S.G.   1B1.3(a-                                                 ______          )(2), comment (backg'd).                    Next,  Bello-Perez  asserts  that  the  court committed          clear error  in imposing a four-level  enhancement under U.S.S.G.            3B1.1(a) for his  role as  an organizer or  leader of  criminal          activity  involving five or more participants.  See United States                                                          ___ _____________          v. Preakos, 907 F.2d 7, 9-10 (1st Cir. 1990) ("clearly erroneous"             _______          standard applies  to determination of "role in  offense").  Since          Bello-Perez apparently does not question that the criminal enter-          prise  charged in  the indictment  was sufficiently  extensive to          come within  U.S.S.G.   3B1.1(a), we understand  him to challenge          the district court determination that he had  a "leadership role"          in  the  criminal enterprise.   The  record,  on the  other hand,          reveals that Bello-Perez supplied  and "fronted" the cocaine and,          after Clark's arrest, directly  supervised the collection of drug          debts  from Clark's customers  and provided operational oversight                      _______ _________          of Murley's cocaine distribution network on a regular basis.  See                                                                        ___          Preakos,  907 F.2d  at  9-10; see  generally U.S.S.G.    3B1.1(a)          _______                       ___  _________          (application note 3) ("Factors  the court should consider include          the exercise of decision making authority, the nature of partici-          pation in  the  commission of  the  offense, the  recruitment  of          accomplices, the claimed right to a larger share of the fruits of          the crime, the degree of participation  in planning or organizing                                          21          the  offense, the nature and  scope of the  illegal activity, and          the degree of control and authority exercised over others.").                    Finally,  Bello-Perez assigns  error  to the  two-level          enhancement  for use  of a  firearm during the  offense.   As the          enhancement  was  not  challenged  below, we  review  for  "plain          error."   United States v.  Morales-Diaz, 925 F.2d  535, 540 (1st                    _____________     ____________          Cir.  1991).  The claim is meritless.   Although he was not found          to have been in  actual possession of a firearm,  Bello-Perez was          accountable  for the use of firearms by his assistant ("Tony") in          strong-arming drug debt collections  in furtherance of the crimi-          nal venture.  See United States v. Bianco, 922 F.2d 910, 912 (1st                        ___ _____________    ______          Cir. 1991) (enhancement  appropriate where "codefendant's posses-          sion  of a firearm in furtherance of their joint criminal venture          was reasonably  foreseeable by  the defendant"); see  also David,                                                           ___  ____ _____          940 F.2d at  742 (defendant  "responsible for the  gun's use  [to          intimidate coconspirator] whether or not he actually held the gun          himself"); McDowell, 918 F.2d at 1011 (enhancement appropriate if                     ________          firearm present, "unless it is clearly improbable that the weapon          and the offense were connected").                    The district court judgment is affirmed.                    _______________________________________                                          22
