
USCA1 Opinion

	




          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 & 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 & 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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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 & 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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -48-
