
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2380        No. 91-1330                                    UNITED STATES,                                      Appellee,                                          v.                                   MICHAEL FISHER,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Anthony M. Traini for appellant.            _________________            A. Clayton  Spencer, Assistant United  States Attorney, with  whom            ___________________        A. John Pappalardo, United States Attorney, was on brief for appellee.        __________________                                 ____________________                                   August 17, 1993                                 ____________________                      STAHL, Circuit Judge.   In this appeal,  defendant-                             _____________            appellant  Michael  Fisher  challenges  his  convictions  for            attempting  and   conspiring  to  possess   with  intent   to            distribute cocaine in violation  of 21 U.S.C.   846.1   After            careful consideration of defendant's arguments, we affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                       In  mid-1989, the  United States  Drug Enforcement            Agency  ("DEA"),  initiated a  "reverse  sting"  in which  it            planned to sell narcotics to Ali  Osseiran, a known narcotics            trafficker.    In  June  1989,  Joseph  Khoury,  a  paid  DEA            informant,  met  with  Osseiran  at his  place  of  business,            Absolute  Diamonds  in  Boston.     At  that  time,  Osseiran            expressed  interest   in  participating   in  a   large  drug            transaction.  Khoury then  introduced Osseiran to Aziz Malik,            another DEA informant, whom Khoury portrayed as a significant            drug dealer.                        On October  31,  1989,  Malik  offered  to  involve            Osseiran in a future heroin transaction on the condition that            Osseiran provide  one million dollars in  financing.  Shortly            thereafter, on November 3, 1989,  Osseiran told Malik that he                                            ____________________            1.  21 U.S.C.   846 provides:                      Any person who attempts or conspires to commit                 any [controlled  substance] offense . .  . shall be                 subject to  the same penalties as  those prescribed                 for the  offense, the  commission of which  was the                 object of the attempt or conspiracy.                                         -2-                                          2            was interested in purchasing 25 kilograms  of heroin and that            he already  had two  buyers interested in  five kilograms  of            heroin  each.   He  also told  Malik  that his  buyers  would            require  a  sample of  the heroin.    At one  point, Osseiran            accidentally  let  slip that  a sample  would  be going  to a            person named "Mike" in East Boston.                      On November 20, 1989, in accordance with Osseiran's            instructions,  Malik delivered  to Rashid  Haloui, Osseiran's            employee, a two-gram sample  of heroin, which was divided  in            half.   Haloui, in accordance  with Osseiran's  instructions,            then  drove to East Boston  and delivered one  portion of the            sample  to defendant  Michael  Fisher.   Later that  evening,            Malik  called Osseiran to see  if the buyers  had approved of            the samples.   Osseiran told  him that the  buyers liked  the            samples and that the money would be forthcoming.                      In  the  ensuing  weeks,  Malik  and  Osseiran  had            several meetings during which they discussed arrangements for            the    delivery   of    the   entire   amount    of   heroin.            Contemporaneously, Osseiran informed Malik that he was having            difficulty  obtaining the  up-front money.   He  also advised            Malik that if the  drugs were cocaine rather than  heroin, he            could put the deal together more easily.  Osseiran reiterated            that he had two buyers for five kilograms of heroin each, but            that he was not sure what to do with the rest of the drugs.                                           -3-                                          3                      During a meeting  in mid-December, Malik agreed  to            exchange ten  kilograms of the previously  agreed upon heroin            for  seventy  kilograms of  cocaine.    Because the  original            twenty-five  kilogram deal  had been subsequently  reduced to            twenty  kilograms, a  total of  ten kilograms  of heroin  and            seventy  kilograms of  cocaine  were now  to be  delivered to            Osseiran.                      On December 26, Osseiran informed Malik that he was            prepared  to consummate  the deal.   It  was agreed  that the            delivery would be concluded  within the next couple  of days.            On  December 28, Osseiran and Malik made arrangements for the            delivery to take place the next day.                        On  the  morning  of December  29,  Fisher  visited            Absolute  Diamonds and  conferred with  Osseiran for  a short            time.   Later  that  afternoon, Malik  met  with Osseiran  at            Absolute  Diamonds,  and received  from  him  a shopping  bag            containing  money and what  appeared to be  diamonds.2  While            at the store, Malik  made a phone call ordering  the delivery            of the drugs.                      As instructed by Osseiran, Haloui went to the Logan            Airport  Hilton  to make  the  pick-up.   At  Logan,  Malik's                                            ____________________            2.  The parties had  previously agreed that because  Osseiran            had not  been able to raise  the full amount of  money agreed            upon, diamonds from the jewelry store would act as collateral            until full payment was made.  As it turned out, the stones in            the  shopping  bag  were   imitation  gems  made  from  cubic            zirconia.                                         -4-                                          4            courier,  who  actually was  another  DEA  informant, Tauquir            Islam,  gave Haloui a bag  purporting to contain  15 kilos of            cocaine.3   Immediately thereafter, Haloui was  arrested.  At            oraround thesametime, Osseiranwasarrested atAbsoluteDiamonds.                      After his  arrest, Haloui told the  DEA agents that            Osseiran had instructed him  to deliver the bag to  Fisher at            Fisher's  liquor  store in  East  Boston.   Haloui  agreed to            assist  the  government  by  participating  in  a  controlled            delivery of the drugs to Fisher.  Haloui  and Islam then went            to Fisher's store. When they arrived, Fisher met them outside            the  store and refused delivery  of the drugs.4   Fisher then            motioned Haloui  inside the  store and privately  told Haloui            that  he was aware that  Osseiran had been  arrested and that            Islam was  a "cop."   Fisher was  arrested on the  evening of            December 29, 1989.                       On  January 26, 1990,  Fisher, Osseiran, and Haloui            were charged in  a four count  indictment.   Counts I and  II            charged  Osseiran  and  Haloui  with attempt  (Count  I)  and            conspiracy (Count  II) to  possess with intent  to distribute                                            ____________________            3.  The bag actually contained flour.            4.   Fisher,  in an  increasingly  agitated state,  had  been            repeatedly  calling Osseiran's  jewelry store  throughout the            afternoon and  asking to speak  with Osseiran, who  was under            arrest.  During  the course of these  telephone calls, Fisher            both   identified himself  by name to  the DEA  agent who had            remained  in the store after  the arrest and,  when asked for            his  telephone number so that Osseiran could return the call,            told the agent, "They know my number."                                         -5-                                          5            more  than  five  kilograms  of  cocaine and  more  than  one            kilogram  of heroin.  Counts  III and IV  charged Fisher with            attempt (Count III) and conspiracy (Count IV) to possess with            intent to distribute more than five kilograms of cocaine.                      Due   to  his   post-arrest  confessions   and  the            constitutional  concerns  raised  thereby, Haloui  was  tried            separately.  See Bruton  v. United States, 391 U.S.  123, 137                         ___ ______     _____________            (1968).  On June 1, 1990, Haloui was acquitted and ordered to            remain in  the jurisdiction  as a  material  witness for  the            upcoming  trial of Osseiran and Fisher.  On October 10, 1990,            the thirteenth day of Osseiran's and Fisher's trial, Osseiran            pleaded  guilty.5  On October 16, 1991, the jury found Fisher            guilty on Counts III and IV.  Subsequently, Fisher  dismissed            his trial counsel and hired the attorney now representing him            on  appeal.  Fisher's new counsel promptly filed a variety of            motions  attacking the  verdict, each  of which  the district            court denied.  Upon resolution  of these motions, Fisher  was            sentenced to two concurrent ten year prison terms.6                                            ____________________            5.    The  government  dismissed  Counts  I  and  II  of  the            indictment against Osseiran and  allowed him to plead instead            to  an information  charging  the same  offenses  but for  an            unspecified quantity of drugs.  The unspecified quantities in            the  amended indictment  allowed  the trial  judge to  depart            downward below  the ten year mandatory minimum.  Osseiran was            then sentenced to three years of imprisonment.             6.   This sentence constituted a  downward departure from the            minimum  151  month  term   required  by  the  United  States            Sentencing Guidelines.                                         -6-                                          6                      On  June  3,  1991,  Fisher,  claiming  ineffective            assistance  of trial  counsel,  filed a  petition for  habeas            corpus  with  the district  court  pursuant  to 28  U.S.C.               2255.7   As  the basis therefor,  Fisher complained  of trial            counsel's failure  to raise  seven separate  issues.   At the            same time, Fisher filed a motion in this court seeking a stay            of  his previously-filed direct appeal.   We granted the stay            pending  the  district  court's  resolution  of  the     2255            petition.                        In a comprehensive memorandum and order dated  July            16, 1992, the district court considered and rejected Fisher's            ineffective assistance arguments on all grounds asserted. See                                                                      ___            United States v. Osseiran, 798 F. Supp. 861, 873-76 (D. Mass.            _____________    ________            1992).  First,  the court determined that  the motions Fisher            claimed should  have been made  would not have  been granted.            Id. at 873-76.  Relying on this determination, the court then            ___            decided  that Fisher had  suffered no prejudice  and that the            representation  afforded  him   by  trial  counsel   was  not            constitutionally infirm.   Id. at  876.   However, the  court                                       ___            concluded  its memorandum and order by holding that it lacked            the jurisdiction  to deny formally Fisher's  petition at that            time.    Id.   Subsequently, we  ordered  the court  to enter                     ___                                            ____________________            7.    The petition  was filed  before  Judge Young,  who also            presided over Fisher's trial.                                         -7-                                          7            judgment on the petition.   In response, the court  issued an            order denying it.  This appeal followed.                        On  appeal, Fisher  seeks  relief on  five grounds:            (1)  that evidence relating to  a conspiracy to  which he was            not a party  and with which he was not charged was improperly            admitted  against  him;  (2)  that without  evidence  of  the            conspiracy  referred to in Count  II of the indictment, there            was  insufficient  evidence to  sustain his  convictions; (3)            that, in violation of  his constitutional rights, he suffered            a  constructive amendment  to  and/or a  prejudicial variance            from  the indictment; (4)  that he was  harmed by ineffective            assistance  of  counsel;  and   (5)  that  his  sentence  was            excessive  in light of the sentence given to Osseiran.  After            determining the  scope of the conspiracy,  which is necessary            for resolving Fisher's first three arguments, we discuss each            in turn.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Scope of the Conspiracy            A.  Scope of the Conspiracy            ___________________________                      As alluded to above, Fisher's first three arguments            depend  necessarily  upon  our acceptance  of  the  following            premise:   that the trial  court should not  have found,8 and                                            ____________________            8.  The  trial court implicitly made such a  finding when, in            accordance   with   the   dictates   of   United  States   v.                                                      ______________            Petrozziello, 548  F.2d 20, 22-23  (1st Cir. 1977),  it ruled            ____________            admissible as coconspirator statements made during the course            and  in  furtherance of  the  conspiracy, see  Fed.  R. Evid.                                                      ___                                         -8-                                          8            correspondingly  that  the government  should  not  have been            allowed  to argue,  that  the heroin  and cocaine  conspiracy            alleged in  Count II  and the  cocaine conspiracy  alleged in            Count IV  actually were components of  one large conspiracy.9            Fisher's argument is not, however, based upon the evidence at            trial.  Instead,  it proceeds  from the fact  that the  grand            jury  charged only  Osseiran and  Haloui with  the conspiracy            alleged in  Count  II, while  charging only  Fisher with  the            conspiracy alleged in Count  IV.  In Fisher's view,  the fact            that the indictment  charged "different" conspiracies  should            have  precluded the  government  from pursuing  a "one  large            conspiracy" line  of argument.  Fisher's  argument is without            merit.                      Simply  put, the  fact that  an indictment  charges            conspiracy  in  separate  counts   does  not  mean  that  the            conspiracies  charged  necessarily   must  be  separate   and            distinct.   We  note  that there  is  a complete  absence  of                                            ____________________            801(d)(2)(E), all  statements, including any relative  to the            cocaine and  heroin conspiracy alleged  in Count II,  made by            Osseiran.  Later, in addressing Fisher's   2255 petition, the            court  made this finding more explicit.  See Osseiran, 798 F.                                                     ___ ________            Supp. at 872-73.             9.  Because  Fisher's trial  counsel did not  object to  this            line  of argument at trial,  we review only  for plain error.            See United States  v. Brennan,  No. 92-1169, slip  op. at  15            ___ _____________     _______            n.17  (1st Cir.  June 3,  1993).   To establish  plain error,            Fisher must demonstrate  that the error complained  of is "so            compelling that he virtually is assured  of succeeding in his            appeal, and that the  error affected the fundamental fairness            and basic integrity  of the proceedings in the  lower court."            Id.            ___                                         -9-                                          9            authority  supporting the  novel proposition  Fisher asserts,            and  that pertinent case law suggests the very opposite. Cf.,                                                                     ___            e.g., United States  v. David,  940 F.2d 722,  734 (1st  Cir.            ____  _____________     _____            1991) (acknowledging that separately charged conspiracies can            constitute a  single offense  for double jeopardy  purposes),            cert.  denied, 112 S. Ct. 2301 (1992); United States v. Hart,            _____  ______                          _____________    ____            933 F.2d 80, 85-86  (1st Cir. 1991) (same); United  States v.                                                        ______________            Gomez-Pabon, 911 F.2d 847, 860 (1st Cir.  1990) (same), cert.            ___________                                             _____            denied, 498 U.S. 1074 (1991).  The reason  for this is clear:            ______            the indictment is  primarily used  to provide  notice of  the            charge  or charges to the  person or persons  indicted; it is            not a means  of assessing proof.  Thus, so  long as it fairly            ___            serves   its  purpose,10   we  will   not,  employing   20/20            hindsight,  view it  as  constricting the  government in  the            manner Fisher suggests.                      Having determined  that the  Count II and  Count IV            conspiracies were  not,  as a  matter  of law,  separate  and            distinct, we  now merely must  decide whether it  was plainly            erroneous  for   the  trial  court  to   have  concluded  and            subsequently  allowed  the  government to  argue  that  these            counts alleged activities that were  part of a single, larger            conspiracy.  We previously have identified five factors to be                                            ____________________            10.  We note a  defendant may always press arguments such  as            constructive  amendment  and prejudicial  variance, discussed            below, when, in  his/her view, the indictment has  not justly            fulfilled its functions.                                         -10-                                          10            considered  in determining  whether two  charged conspiracies            actually  constitute the same  offense:  (1)  the time during            which the activities occurred;  (2) the persons involved; (3)            the places  involved; (4) whether the same  evidence was used            to  prove the  two  conspiracies; and  (5)  whether the  same            statutory provision  was involved in both  conspiracies.  See                                                                      ___            Gomez-Pabon, 911 F.2d at 860.11              ___________                      Application  of  these five  factors to  the record            before  us   reveals  that  the  district   court,  far  from            committing plain error, made a supportable determination that            there was a single conspiracy.  First, the indictment charges            that the activities referenced in Counts II and IV took place            during  the same basic time period -- "[o]n or about December            29, 1989."12   Moreover, the evidence  reveals no discernible            temporal  gap between the activities related  to Count II and            activities related to Count IV.  In our view, such facts tend            to indicate that there was  a single conspiracy which  merely            shifted direction when Osseiran  determined that he would not                                            ____________________            11.  As noted previously, the Gomez-Pabon appeal presented us                                          ___________            with   the  question  of   whether  two   separately  charged            conspiracies constituted a single offense for double jeopardy            purposes.   We see no reason, however, why these five factors            should  not also  be used  to determine  whether there  was a            single conspiracy in the instant circumstances.            12.   Of course, the  setting forth, in  approximate form, of            this date in the  indictment does not preclude  the admission            of evidence  relating to  events which occurred  earlier. See                                                                      ___            United States v. Bello-Perez, 977 F.2d 664, 669 n.4 (1st Cir.            _____________    ___________            1992).                                         -11-                                          11            be  able to  move  the heroin  he  had previously  agreed  to            purchase.   Cf.  David, 940  F.2d  at 734  (distinguishing  a                        ___  _____            change in direction in a single conspiracy from the inception            of  a conspiracy distinct from the original one).  The strong            identity   between  the   persons,  places,   and  evidence13            involved  in Counts II and  IV only serves  to reinforce this            perception.  Finally,  we note that  the two counts  involved            the same statutory provision.                      Certainly,  the  argument  that   the  conspiracies            alleged  in Counts II and IV are separate and distinct is not            completely  implausible.   The  plausibility of  a theory  in            conflict  with the  lower court's  ruling, however,  plays no            role in our review.   Instead, we are limited  to determining            whether the  trial court  plainly erred  in finding  that the            evidence revealed  a single,  overall conspiracy.   See supra                                                                ___ _____            note 9.  Patently, it did  not.  Accordingly, we affirm  this            finding.14                                            ____________________            13.    In  particular,  the  evidence  concerning  Osseiran's            inability  to  move  heroin  and preference  for  cocaine  is            relevant  to  both  the  conclusion  of  the  phase   of  the            conspiracy alleged in Count II and the inception of the phase            of the conspiracy alleged in Count IV.            14.  To the extend  that United States v. Dunn, 758  F.2d 30,                                     _____________    ____            36 & n.2 (st Cir. 1985), may be read as  raising the question            of  whether the  government  may charge  part  of an  overall            conspiracy  and  introduce  evidence   of  the  rest  of  the            conspiracy to prove the conspiracy charged,  it is clear that                       __ _____ ___ __________ _______            the  question should  be  answered in  the affirmative.   See                                                                      ___            United States v. O'Campo,  973 F.2d 1015, 1023 n.5  (1st Cir.            _____________    _______            1992).                                         -12-                                          12            B.  Admission of Count II Evidence, Sufficiency, and            B.  Admission of Count II Evidence, Sufficiency, and            ____________________________________________________            Constructive Amendment/Prejudicial Variance            Constructive Amendment/Prejudicial Variance            ___________________________________________                      Having found  no plain  error in  the determination            that Counts II and  IV referred to activities that  were part            of a  single conspiracy, Fisher's first  three arguments need            not detain us  long.   Fisher, relying  exclusively upon  his            "separate conspiracy" theory, first argues that the  evidence            concerning  the conspiracy  alleged  in Count  II, which  the            trial  court   admitted  against  Fisher,  should  have  been            excluded as  unfairly prejudicial under Fed.  R. Evid. 403.15            We  review the trial court's admission  of this evidence only            for  an abuse  of discretion.   See,  e.g., United  States v.                                            ___   ____  ______________            Spinosa, 982 F.2d 620, 629 (1st Cir. 1992).            _______                      Here, contrary to Fisher's  perfunctory assertions,            the evidence at  issue was  directly relevant  to and  highly            probative of  the  overall  conspiracy  to  which  he  was  a            party.16  Moreover,  we cannot  discern any way  in which  it            may have  tended to engender unfair  prejudice.  Accordingly,                                            ____________________            15.  Fed. R. Evid. 403 provides:                   Although  relevant, evidence  may be  excluded if                 its probative value is substantially  outweighed by                 the danger  of unfair  prejudice, confusion  of the                 issues,   or    misleading   the   jury,    or   by                 considerations of  undue delay,  waste of  time, or                 needless presentation of cumulative evidence.            16.  In  so ruling, we are mindful that  the government "need            not recite all of its  evidence in the indictment, nor is  it            limited at trial to the overt acts listed in the indictment."            United States v. Innamorati, No. 91-1896, slip op. at 34 (1st            _____________    __________            Cir. June 17, 1993).                                         -13-                                          13            we  find that the district court did not abuse its discretion            in admitting this evidence against Fisher.17                      Fisher  similarly  argues  that,   absent  evidence            relating to  the Count II conspiracy,  there was insufficient            evidence to  sustain his  convictions on  Counts III  and IV.            Obviously,  however, our  rejection of  the premise  that the            Count II conspiracy  was separate and distinct from the Count            IV  conspiracy and our  concomitant ruling that  the Count II            evidence  was  properly  admitted  against him  is  fatal  to            Fisher's   sufficiency  claims.     Accordingly,   we  reject            them.18                                            ____________________            17.  In  arguing that  the Count II  evidence improperly  was            admitted against him, Fisher also contends that  Counts I and            II  were  improperly joined  with Counts  III  and IV.   Once            again,  trial counsel's  failure  to raise  this issue  below            limits our review  to one for plain error.  Brennan, slip op.                                                        _______            at 15 n.17.    Given  our  endorsement of  the  trial court's            finding that  the activities  alleged in the  indictment were            part of a  single, overall conspiracy, and given  the absence            of any other  constitutional problems, it  is clear that  all            counts  were properly  joined  and that  no  plain error  was            committed.  Accordingly, Fisher's  joinder argument also must            be rejected.            18.  To the extent that Fisher is arguing that, even with the            admission of  the Count  II evidence, there  was insufficient            evidence  to  sustain  his  convictions,  his  arguments  are            meritless.   In  order to  convict  Fisher of  attempting  to            possess with intent to distribute cocaine, the government was            required to  prove, by direct or  circumstantial evidence and            beyond a reasonable doubt, that Fisher intended to commit the            aforementioned   substantive  offense  and  that  he  took  a            substantial step  toward its  commission.  See,  e.g., United                                                       ___   ____  ______            States  v. Figueroa,  976 F.2d  1446, 1459  (1st Cir.  1992),            ______     ________            cert. denied, 113 S. Ct. 1346 (1993). In order to convict him            _____ ______            of conspiring  to possess with intent  to distribute cocaine,            the  government   was  required   to  prove,  by   direct  or            circumstantial evidence  and beyond a reasonable  doubt, that                                         -14-                                          14                      Finally,  Fisher  contends   that  he  suffered   a            constructive  amendment to  and/or prejudicial  variance from            the  indictment.   Once  again,  in  making these  arguments,            Fisher depends  upon his theory that the  Count II conspiracy            necessarily was  separate and  distinct from that  charged in            Count  IV.  Given our rejection of this theory and affirmance            of  the  trial court's  finding  of  one overall  conspiracy,            however,  it  is   readily  apparent  that  no   constructive            amendment or variance took place.                      A constructive amendment "`occurs when the charging            terms of the  indictment are altered, either literally  or in                                            ____________________            Fisher entered into  an agreement with another  to commit the            aforementioned  substantive offense.   See, e.g., Innamorati,                                                   ___  ____  __________            slip op. at 12.                 Reviewing the  evidence in a light most favorable to the            government and resolving all credibility issues in its favor,            see Brennan, slip  op. at  3 n.2 (setting  forth standard  of            ___ _______            review governing appellate  challenges to the  sufficiency of            the evidence),  we  find that  there  was ample  evidence  to            support  Fisher's convictions.    In our  view, Fisher's  (1)            acceptance of the  heroin sample in advance  of the scheduled            heroin  and  cocaine  delivery;   (2)  presence  at  Absolute            Diamonds on  the morning  of the scheduled  cocaine delivery;            (3)  repeated  hectic phone  calls  to  Osseiran at  Absolute            Diamonds  throughout that  same afternoon; and  (4) knowledge            that Islam was a "cop" and refusal to take the drugs for that            reason,  when combined  with the  amount of  the drugs  to be            delivered and Malik's testimony that Osseiran had stated that            the heroin  sample  would  be delivered  to  "Mike"  in  East            Boston,  constitute  a sufficient  circumstantial evidentiary            basis  for  the  jury  to  have  concluded that  Fisher  both            intended  to commit  the possession  offense charged  and had            entered into an agreement  with Osseiran to commit that  same            offense.   Moreover, we  believe that Fisher's  acceptance of            the  heroin  sample  was   a  substantial  step  towards  the            commission of the offense.   Accordingly, having found record            evidence supporting each  of the elements of the  offenses of            conviction, we decline to disturb the jury's verdict.                                             -15-                                          15            effect, by prosecution or court after the grand jury has last            passed upon them.'"  Dunn, 758 F.2d at 35 (quoting Gaither v.                                 ____                          _______            United States, 413 F.2d  1061, 1071-72 (D.C. Cir. 1969)).   A            _____________            variance occurs when the  charging terms remain unchanged but            when  the facts  proved  at trial  are  different from  those            alleged in the indictment.  See United States v. Tormos-Vega,                                        ___ _____________    ___________            959 F.2d 1103, 1115 (1st Cir.), cert. denied, 113 S. Ct. 191-                                            _____ ______            92  (1992); see also Hunter v. State  of New Mexico, 916 F.2d                        ___ ____ ______    ____________________            595,  598 (10th  Cir. 1990),  cert. denied,  111 S.  Ct. 1693                                          _____ ______            (1991).   A constructive amendment  is considered prejudicial            per se and  grounds for reversal of a conviction.   Dunn, 758            ___ __                                              ____            F.2d at  35.  Variance  is grounds  for reversal  only if  it            affected the  defendant's "substantial  rights" --  i.e., the            rights to  "have sufficient  knowledge of the  charge against            him in  order  to  prepare  an effective  defense  and  avoid            surprise at trial,  and to prevent  a second prosecution  for            the  same offense."  Tormos-Vega, 959 F.2d at 1115.  Variance                                 ___________            also protects against "prejudicial  spillover" so that when a            defendant   has  multiple   codefendants,  "proof   that  one            defendant  was involved in  one conspiracy does  not lead the            jury  to believe  that another  defendant was  involved in  a            separate conspiracy."  Id.                                   ___                      Here, Fisher was charged, convicted,  and sentenced            for attempting  to possess with intent  to distribute cocaine            and conspiring to possess  with intent to distribute cocaine.                                         -16-                                          16            The  evidence  admitted  against  him pertained  directly  to            these,  and  to  no  other,  charges.    The  fact  that  the            government  proved aspects  of  the conspiracy  beyond  those            recited  in  the indictment  against  Fisher  -- i.e.,  those            relating  to  Count  II  --  simply  does  not  constitute  a            variance.   See  Innamorati,  slip op.  at 34-35  (finding no                        ___  __________            variance when the government introduced at trial evidence and            overt acts  relating to the charged  conspiracy outside those            alleged in the indictment).   Accordingly, we reject Fisher's            constructive     amendment    and     prejudicial    variance            arguments.19            C.  Ineffective Assistance            C.  Ineffective Assistance            __________________________                      Fisher's fourth argument is  that he was victimized            by ineffective assistance of counsel at trial.  In support of            this argument,  Fisher  advances three  "failures"  of  trial            counsel:  (1) trial counsel's  failure to move for  severance            on  the basis  of  prejudicial joinder;  (2) trial  counsel's                                            ____________________            19.   We note that the issue  of variance most often comes up            when the  indictment charges  one overall conspiracy  but the            trial  evidence  reveals  separate  conspiracies  and that  a            particular defendant  is  a  member of  only  some  of  those            conspiracies.  See generally United States v. Glenn, 828 F.2d                           ___ _________ _____________    _____            857, 857-58 (1st Cir.  1987).  In such instances,  of course,            there is  the possibility that a defendant  can be prejudiced            by  being convicted of a crime other  than the one with which            s/he was charged.  Id.                               ___                 Here, however, Fisher was convicted of and sentenced for            a conspiracy smaller in scope and breadth than that for which                         _______            he  may have, in fact,  been culpable.   Given this fact, his            protestations of prejudice are difficult to fathom.                                         -17-                                          17            failure to  move for a  mistrial or, at least,  to strike the            heroin evidence after Osseiran  pleaded guilty; and (3) trial            counsel's  failure   to  object  when   the  prosecutor  made            reference  to the  heroin evidence  in her  closing argument.            Yet again,  our determination  that the trial  court's single            conspiracy finding was  supportable renders Fisher's argument            unavailing.                      In order to  establish a Sixth Amendment  violation            for  ineffective  assistance  of  counsel,  a defendant  must            demonstrate  (1)  that  counsel  fell  below  the  applicable            standard for performance, defined by what the lawyer knew, or            should have known,  at the time of  his/her tactical choices;            and  (2) that  prejudice  resulted.    See United  States  v.                                                   ___ ______________            Natanel, 938 F.2d 302, 309 (1st Cir. 1991) (citing Strickland            _______                                            __________            v.  Washington, 466 U.S. 668, 687  (1984)), cert. denied, 112                __________                              _____ ______            S. Ct. 986 (1992).  Here, as the district court points out in            its  thorough  and  well-reasoned  memorandum  responding  to            Fisher's   2255 petition, because there was a single, overall            conspiracy,  each  of  the aforementioned  motions/objections            would have been denied/overruled.  See Osseiran, 798 F. Supp.                                               ___ ________            at  873-76.20    Accordingly, Fisher  suffered  no  prejudice                                            ____________________            20.   As noted earlier, see supra  note 17, the fact that all                                    ___ _____            activities referenced in the indictment were part of a single            conspiracy requires  a finding that the  counts were properly            joined.   And obviously, as  stated above, the  fact that the            heroin evidence  was part of  the same  conspiracy for  which            Fisher  was  convicted  means  that  the  evidence  was  both            properly  admitted  against  him   and,  a  priori,  properly                                                     _  ______                                         -18-                                          18            from trial counsel's  failure to press  these matters.   And,            without   a  showing   of  prejudice,   Fisher's  ineffective            assistance claim cannot succeed.            D.  Sentence Disparities            D.  Sentence Disparities            ________________________                      Fisher's   fifth  and  final   argument,  that  his            sentence was excessive in  light of the amount of  time given            to  Osseiran,  does  not  require extended  discussion.    In            sentencing Fisher, the trial court departed downward from the            applicable  sentencing guidelines range.   We have repeatedly            made clear that we  "lack jurisdiction to review  the `extent            of  a  downward departure  merely  because  the defendant  is            dissatisfied   with  the   quantification   of  the   court's            generosity.'"   United States v. Gregorio, 956  F.2d 341, 345                            _____________    ________            n.5 (1st Cir.  1992) (quoting United States  v. Pighetti, 898                                          _____________     ________            F.2d  3, 4 (1st Cir. 1990))  (brackets and ellipsis omitted).            Accordingly,  we  do  not  have  jurisdiction   to  entertain            Fisher's  contention  that  he  "was entitled  to  a  greater            downward departure than he received[.]"                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Having  rejected  each  of  the arguments  made  on            appeal by Fisher, we affirm his convictions and sentence.                      Affirmed.                      Affirmed.                      _________                                            ____________________            referred to by the prosecutor in her closing argument.                                         -19-                                          19
