
USCA1 Opinion

	




          June 8, 1994      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 93-1193                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    RENE M. PION,                                Defendant, Appellant.                                                                                      __________________                                     ERRATA SHEET               The opinion of this  Court, issued June 1, 1994,  is amended          as follows:               Page  11, line 22, should read:   . . .   Jury Wheel are the          best . . .                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1193                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    RENE M. PION,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Benjamin D. Entine for appellant.             __________________             Geoffrey E.  Hobart, Assistant United States  Attorney, with whom             ___________________        A.  John Pappalardo,  United  States  Attorney,  and George  W.  Vien,        ___________________                                  ________________        Assistant United States Attorney, were on brief for appellee.                                                                                      ____________________                                     June 1, 1994                                                                                      ____________________                    CYR, Circuit Judge.  After a two-week trial, Rene  Pion                    CYR, Circuit Judge.                         _____________          was convicted  on three cocaine-related charges  and sentenced to          concurrent mandatory minimum  ten-year prison terms, pursuant  to          21 U.S.C.   841(b)(1)(A)(ii).1   We address each of Pion's appel-          late claims.          A.   Entrapment          A.   Entrapment               __________                    Without challenging the jury instruction on entrapment,          Pion  contends that the evidence compelled jury acceptance of his          entrapment defense.  We therefore inquire whether a rational jury          could have found, beyond  a reasonable doubt, either that  he was          predisposed to  commit the particular  crime charged or  that the                                                               __          government did not  induce him to commit it.   Jacobson v. United                                                         ________    ______          States,  ___ U.S. ___, ___, 112 S.  Ct. 1535, 1540 (1992); United          ______                                                     ______          States  v. Reed, 977 F.2d 14, 18  (1st Cir. 1992).  Viewed in the          ______     ____          light most favorable to  the verdict, United States v.  Martinez,                                                _____________     ________          922 F.2d 914, 923 (1st Cir.  1991), there was ample evidence that          Pion was not induced to commit any crime.                    The only  inducement to  which he  points on  appeal is          that the government informant, Esteban Mendoza, plied and enticed          him with a  "vital" supply of  El Presidente beer  for resale  at          Pion's  restaurant.    According  to Pion,  the  government  thus          subjected him  to "rigid  economic coercion"  to traffick in  co-          caine.  Not only was this fanciful claim not preserved below,  it                                        ____________________               1Count I charged conspiracy  to possess cocaine, with intent          to distribute, see 21 U.S.C.   846; substantive counts II and III                         ___          charged possession of cocaine for distribution, and  distribution          of cocaine, respectively, see id.    841(a)(1) & (b)(1)(A)(ii).                                    ___ ___                                          2          is squarely contradicted by his testimony at trial.   Additional-          ly, the  El Presidente beer  Mendoza supplied Pion  totalled nine          cases;  none of it  delivered until more than  two weeks after he          unhesitatingly  indicated his willingness  to supply Mendoza with          the first one-half kilogram of cocaine.  Thereafter, Pion partic-          ipated  in a  three-kilogram transaction  (and agreed  to arrange          another three  kilograms) with no inducement  except the implicit          "promise" of  cocaine profits.   Thus, the  record reveals  ample          support for a jury finding that Pion was no "unwary innocent" but          an "'unwary criminal' who readily availed himself of the opportu-          nity to perpetrate  the crime."   Mathews v.  United States,  485                                            _______     _____________          U.S. 58, 63 (1988).          B.   Coconspirator Statements          B.   Coconspirator Statements               ________________________                    Pion claims  that the  district court committed  rever-          sible error  by admitting into evidence  coconspirator statements          pertaining to two separate  conspiracies:  the first  involving a          one-half  kilogram  transaction on  June 4,  1991;  the second  a          three-kilogram transaction  on July 3.2   According to  Pion, the          only possible link between the two transactions was the red Honda          automobile driven on June 4 by coconspirator "Rafael," purported-          ly Pion's  cocaine supplier,  and by coconspirator  Christobalina          Tejada on July 3.  Since Pion does  not suggest that the district                                        ____________________               2Pion's entire effort to identify  the challenged coconspir-          ator statements is  as follows:   "The admission  of alleged  co-          conspirators [sic] statements from the second  conspiracy against          Pion, in  order  to  purportedly  prove his  involvement  in  the          alleged first conspiracy, and vice-versa, was therefore error and          was irreparably prejudicial to Pion."                                          3          court departed from the procedure required under United States v.                                                           _____________          Petrozziello,  548 F.2d 20, 23 (1st Cir. 1977), and United States          ____________                                        _____________          v.  Ciampaglia, 628 F.2d 632,  638 (1st Cir.),  cert. denied, 449              __________                                  ____  ______          U.S.  956  (1980), we  review  the conspiracy  finding  for clear          error, United States  v. McCarthy,  961 F.2d 972,  977 (1st  Cir.                 _____________     ________          1992).  We find none.                    The government  quite correctly  suggests that the  red          Honda, registered  to  Tejada, was  the  "most obvious  piece  of          circumstantial evidence" linking the two transactions to the same          conspiracy.    Equally conspicuous,  however,  yet  overlooked by          Pion, were  the three  participants common to  both transactions,          notably himself,  "Rafael" and Tejada, and  their tacit agreement          to traffick in cocaine.  Nothing more was required.          C.   The Transcripts          C.   The Transcripts               _______________                    Without  identifying the  translations  at issue,  Pion          challenges, as ambiguous  and inaccurate, government  transcripts          containing English translations of Spanish conversations recorded          by Mendoza,  the  government informant,  during various  meetings          with  Pion  and other  conspirators.   Since  Pion did  not argue          before the district court that the transcripts were ambiguous, we                                                              _________          review  only for plain error.  See United States v. Mejia-Lozano,                                         ___ _____________    ____________          829 F.2d 268, 272 (1st Cir. 1987); Fed. R. Crim. P. 52(b).                    Even though  Pion's failure to identify  the challenged          statements severely hinders  review, especially  since the  tran-          scripts are not  included in  the appellate record,  see Fed.  R.                                                               ___          App. P. 10(b), 11(a),  we can say with confidence  that there was                                          4          no error, plain  or otherwise.  The thrust  of this contention is          that the  transcripts are susceptible to  two radically different          interpretations:  one innocent (the recorded conversations merely          concerned beer);  the other criminal (cocaine  trafficking).  The          record precludes  any  suggestion of  error based  on this  newly          minted theory,  as the evidence (including  Pion's testimony) and          the  recorded conversations  themselves established  beyond doubt          that beer  was simply the  means Mendoza  used to gain  access to          Pion.                    The district court  correctly followed the  transcript-          admission procedure set out in United States v. Rengifo, 789 F.2d                                         _____________    _______          975 (1st  Cir. 1986), by  first attempting,  without success,  to          obtain a  stipulated transcript.   See  id. at  983.  After  Pion                                             ___  ___          objected to  alleged inaccuracies in the authenticated government          transcript, he consented to its admission subject to the right to                         _________          introduce his own transcript.   The court thereupon  admitted the          government  transcript  and gave  a cautionary  jury instruction.          Notwithstanding the fact  that the court recognized  his right to          do  so, Pion  did  not offer  his own  transcript.   Later,  Pion          objected when  the government attempted  to read portions  of its          transcript to  the jury.   The court  treated the objection  as a          motion to strike, and denied it.                      There  was no abuse  of discretion.   United  States v.                                                          ______________          Font-Ramirez,  944 F.2d 42, 48 (1st Cir. 1991), cert. denied, 112          ____________                                    ____  ______          S.  Ct.  954 (1992)  (no  "abuse of  discretion"  where defendant          neither offered transcript nor indicated specific inaccuracies in                                          5          government transcript); accord United  States v. Devous, 764 F.2d                                  ______ ______________    ______          1349, 1355 (10th Cir. 1985).           D.   Juror Misconduct          D.   Juror Misconduct               ________________                    The district  court's decision to conduct  an in camera                                                                  __ ______          inquiry  to resolve a report  of improper juror  contact was well          within its broad discretion.  See United States v. Reis, 788 F.2d                                        ___ _____________    ____          54,  59 (1st Cir. 1986).  The  transcript of the in camera inter-                                                           __ ______          view  plainly reveals  that the  matters discussed  directly per-          tained  to whether the juror  had been approached  and whether he          could be impartial.            E.   Jury Composition          E.   Jury Composition               ________________                    Pion claims a deprivation of his constitutional  right,          under  the Sixth Amendment to  the United States Constitution, to          be  tried by a  petit jury  drawn from  a representative  cross -          section of the  community.3   See Taylor v.  Louisiana, 419  U.S.                                        ___ ______     _________                                        ____________________               3We  do not share the view embraced by our brother, relating          to 28 U.S.C.    1867.   See infra  at pp.  16-19.   First, it  is                                  ___ _____          unnecessary to  address section 1867, because  the merits dispute          properly raised, briefed and argued by the parties, and carefully          considered  by the  district  court,  presents an  insurmountable          barrier  for appellant.  See,  e.g., Norton v.  Mathews, 427 U.S.                                   ___   ____  ______     _______          524, 532  (1976); In re Unanue  Casal, 998 F.2d 28,  33 (1st Cir.                            ___________________          1993).  Second, the jurisdictional  question our brother poses is          anything but easy, having been squarely  addressed in its present          aspect by but one court of appeals, see United States v. De Alba-                                              ___ _____________    ________          Conrado,  481  F.2d 1266  (5th  Cir.  1973),  which concluded              _______          contrary  to the position taken in the concurring opinion    that          constitutional challenges  to jury composition are  not barred by          ______________                                      ___          28 U.S.C.    1867(e).  Id.  at 1270,  n.4.  Although  we take  no                                 ___          position on the jurisdictional  question, the difficulty with the          position espoused  by our  brother is  succinctly  stated in  the          legislative history of 28 U.S.C.   1867(e):                     Subsection  (e) makes  clear that  the proce-                    dures  prescribed  in  this section  are  the                    exclusive  means  for challenging  compliance                                      ___ ___________  __________                    with the  statute.   The bill, as  amended by                    ____ ___  _______        ____                                          6          522, 527  (1975).  The district court  accepted, arguendo, Pion's                                                           ________          statistical data indicating that  though the 1990 census reflects          that 4.2% of  the residents  within the Eastern  Division of  the          District of Massachusetts are Hispanic, only 0.99% of all persons          responding to the juror questionnaire  during 1992, and 0.80%  of          those appearing for juror orientation, were Hispanic.  These data          form the evidentiary base for Pion's sweeping claim that "Hispan-          ic minority members are so grossly underrepresented among federal          juries as to constitute  a 'systematic exclusion of the  group in          the jury-selection process'" (quoting Duren v. Missouri, 439 U.S.                                                _____    ________          357, 364 (1979)).  The district court  rejected the Pion claim on          the  fundamental ground that the  Amended Jury Plan  for the Dis-          trict  of Massachusetts ["Jury Plan"]  is as broadly inclusive as          any  in  the nation  and has  been  expressly approved  under the          Federal Courts  Administration Act of 1992, codified at 28 U.S.C.            1863(b)(2) (1992).4   On appeal, Pion  nonetheless insists that                                        ____________________                    the  committee, however, makes clear that the                                             _____ _____ ____ ___                    act will not preclude any person or the Unit-                    ___ ____ ___ ________ ___ ______ __ ___ _____                    ed  States from  asserting rights  created by                    __  ______ ____  _________ ______  _______ __                    other statutes or for [sic] enforcing consti-                    _____ ________ __ ___       _________ _______                    tutional rights.                    ________ ______          H.R. Rep. No.  1076, 90th  Cong., 2d Sess.  (1968), reprinted  in                                                              _________  __          1968 U.S. Code Cong.  & Admin. News 1792, 1806  (emphasis added).          See also De-Alba-Conrado, 481 F.2d at 1270 n.5.          ___ ____ _______________                    Given  the  express  language  employed  in  subsection          1867(e), and its explicit legislative history, id., we believe it                                                         ___          prudent  to bypass  the question,  see Norton,  427 U.S.  at 532,                                             ___ ______          rather than attempt,  sua sponte,  to resolve it  on the  present                                ___ ______          record.                4Rather  than voter  lists  or  motor  vehicle  registration          lists, the baseline  data utilized  under the Jury  Plan are  the          alphabetical lists of all persons age seventeen and  above resid-          ing  in  every Massachusetts  city  and  town, compiled  annually          pursuant  to Mass.  Gen. L.  ch. 234A,    10 (1992).   See United                                                                 ___                                          7          the Jury Plan results in such substantial Hispanic underrepresen-                        _______ __          tation as to render it constitutionally infirm under the "system-          atic exclusion"  standard employed in Duren v. Missouri, 439 U.S.                                                _____    ________          357, 364 (1979).         The   burden  is  on  the  defendant  to          establish a prima facie case of unconstitutional disproportional-          ity.  United States v. Benmuhar, 658 F.2d 14, 19 (1st Cir. 1981).                _____________    ________          We  conclude  that Pion  has not  demonstrated that  any Hispanic          underrepresentation  on his jury venire was due to their "system-                                                                    _______          atic  exclusion  in the  jury-selection  process."   Id.  at  366          ____  _________  __ ___  ____ _________  _______     ___          (emphasis  added).   Consequently, he has  failed to  establish a          prima  facie violation  of the  "fair-cross-section requirement."          Id. at 364;  United States v. Hafen, 726 F.2d  21, 23 (1st Cir.),          ___          _____________    _____          cert. denied, 466 U.S. 962 (1984).           ____  ______                    The  government  agrees  that  Hispanics  constitute  a          distinctive ethnic  group in the Eastern Division of the District          of Massachusetts, thus  conceding the first  prong of the  three-          part  Duren test.   See Duren, 439  U.S. at 364.   The government                _____         ___ _____          counters, however, that Pion  failed to make the two  other Duren                                                                      _____          showings:   that Hispanic representation on jury  venires "is not          fair and reasonable in relation to the number of such  persons in          the  community" and that any such  underrepresentation is "due to          systematic exclusion  of [Hispanics]  in the  jury-selection pro-                                        ____________________          States  District Court, District  of Massachusetts,  Amended Jury          Plan at 3 (Sept. 6, 1989).   Names are drawn at random from these          resident  lists for inclusion in the Master Jury Wheel from which          potential grand and petit jurors' names are then randomly drawn.                                          8          cess."   Id.   Although  both showings  are problematic,  we need                   ___          address only the "systematic exclusion" claim.                     Pion  presented  uncontroverted  evidence indicating  a          3.4%  "absolute disparity" between  the 4.2% Hispanic representa-          tion  in the relevant  general population and  the 0.80% Hispanic          representation  among persons  appearing  for juror  orientation.          See Hafen, 726  F.2d at  24 ("absolute  disparity" standard  more          ___ _____          appropriate than "comparative disparity" standard where allegedly          underrepresented group  constitutes very small proportion  of the          total  population) (citing  United  States v.  Whitley, 491  F.2d                                      ______________     _______          1248, 1249 (8th Cir.), cert. denied, 416  U.S. 990 (1974)).5  For                                 _____ ______          the reasons stated  in Hafen,  726 F.2d at  24, the  "comparative                                 _____          disparity" standard should not be employed in circumstances where          "a small variation in the  figures used to calculate  comparative                                        ____________________               5The  "comparative  disparity"  standard  would  measure the                      ___________          percentage spread between  the total number  of Hispanics in  the          relevant  general population  who are  eligible for  jury service          ["eligible Hispanics"], i.e.,  assumedly 4.2%, and the  shortfall                                  ____                            _________          between the  eligible Hispanic  jurors (4.2%) and  the percentage          appearing for juror orientation (0.8%), i.e., 3.4%.  The "compar-                                                  ____              _______          ative disparity" would be calculated by dividing the shortfall in          _____                                                _________          Hispanic  representation (3.4%)  by  the percentage  of  eligible          Hispanics (4.2%),  yielding a  huge 81%  "comparative disparity."          See Hafen, 726 F.2d at 23.          ___ _____               The "absolute disparity" standard,  on the other hand, would                    ________          measure  the  gross spread  between  the  percentage of  eligible          Hispanics (4.2%) in the relevant population and the percentage of          Hispanic representation  on the  Master Jury  Wheel.  Here,  Pion          wrongly assumes a 3.4% "absolute disparity."  The reality is that          _______ _______          the  spread between the 4.2%  of eligible Hispanics  and the per-               ______                                                  ____          centage  of Hispanics  on  the Master  Jury  Wheel has  not  been          _______  __ _________  __  ___ ______  ____  _____          established,  nor can  it be  discerned, since the  percentage of          Hispanics  on the  Master  Jury Wheel  is  not disclosed  in  the                             ______  ____ _____          appellate  record.   Thus,  Pion impermissibly  assumes that  the          0.80% Hispanic  representation among  all persons who  appear for          juror  orientation is  the  appropriate downside  percentage  for          measuring the absolute disparity in Hispanic representation.                                          9          disparity can produce a significant difference in the result, and          . . . there is  reason to  doubt the accuracy  of the figures  on          which appellant would have us rely."6                    Pion has  not  demonstrated that  any alleged  Hispanic          underrepresentation  on  Eastern  Division  jury  venires  in the          District of  Massachusetts is due to "systematic exclusion in the          jury-selection  process."  Duren, 439 U.S. at 366.  He identifies                                     _____          neither  a systemic defect  nor an operational  deficiency in the          Jury Plan  which would  account for the  alleged underrepresenta-          tion,  compare id.  at  366-67,  and  he expressly  disavows  any                 _______ ___          suggestion  that the Jury Plan was either designed or intended to          exclude Hispanics.                    The first infirmity  in the unfair  cross-section claim          is that the district court found, and Pion does not dispute, that          the broadest data available    resident lists    are used to make          up the Master Jury Wheel from which Eastern Division jury venires          are drawn.  There is no allegation, much less  a showing, statis-          tical  or otherwise,  that data  more conducive  to a  fair cross          section are  available, let  alone more fairly  representative of          eligible Hispanics  in the relevant general  population.  Second,          since  the names included in  the Master Jury  Wheel are randomly          drawn  from the most inclusive  data available, and random selec-          tion  also determines  to whom  juror questionnaires  are mailed,          there  can be  no  reasonable inference  that the  jury-selection                                        ____________________               6For a fuller exposition of the rationale for  utilizing the          "absolute  disparity" standard in a case of this sort, see Hafen,                                                                     _____          726 F.2d at 23-24.                                          10          process itself systematically excludes  Hispanics at any stage up          to and including the distribution of juror questionnaires.                    At that stage in the process, however, the  data relied          on  by Pion indicate, see  1992 Jury Wheel  Report, Eastern Divi-                                ___          sion, Boston, Mass.,  that only  .99% of those  who complete  and          return the jury questionnaire,  and .80% of those who  appear for          juror  orientation, are  Hispanic.   Nevertheless,  even assuming          their  accuracy,  these  data   demonstrate  no  Hispanic  under-                                                       __  ________  ______          representation on the  1992 Master  Jury Wheel.   And since  only          ______________ __ ___  ____ ______  ____ _____          those  persons whose names are randomly drawn for the Master Jury          Wheel can receive a juror questionnaire (and, later, a summons to          juror orientation),  Pion's allegation of  "systematic exclusion"          based on  the .80%  Hispanic representation at  juror orientation          (or  the .99% responding  to the questionnaire)  is pure specula-                                                              ____ ________          tion.  See  United States v. Garcia, 991 F.2d  489, 492 (8th Cir.          ____   ___  _____________    ______          1993) (numerical  underrepresentation not a proxy  for systematic          exclusion);  cf. Barber  v. Ponte,  772 F.2d  982, 997  (1st Cir.                       ___ ______     _____          1985) (en  banc) ("courts have tended  to allow a  fair degree of          leeway  in designating jurors so  long as the  state or community          does not  actively prevent people  from serving or  actively dis-          criminate, and so  long as the system is reasonably open to all")          (emphasis  in  original); cert.  denied,  475  U.S. 1050  (1986);                                    _____  ______          Benmuhar,  658  F.2d at  19  (finding  "systematic exclusion"  of          ________          Hispanics as  a result of Commonwealth of Puerto Rico's exclusion          of  non-Anglophones  from jury  service).   With  no datum  as to          Hispanic representation on  the Master Jury Wheel, and  given the                                          11          fact  that the baseline data for comprising the Master Jury Wheel          are the best available, there can be no reasonable inference that          the  relatively  small   Hispanic  underrepresentation  at  juror          orientation is attributable to anything other than the randomness          of the  draw from either  the resident  lists or the  Master Jury          Wheel.   Consequently, Pion generated no trialworthy issue on the          essential element  of "systematic exclusion," Duren,  439 U.S. at                                                        _____          366.7          F.   Mandatory Minimum Sentence (21 U.S.C.   841(b)(1)(A)(ii))          F.   Mandatory Minimum Sentence (21 U.S.C.   841(b)(1)(A)(ii))               _________________________________________________________                    Pion  contends that  the  sentencing  court  improperly          included  an unconsummated three-kilogram  cocaine transaction in          calculating  the amount  for  which he  was responsible,  thereby          triggering the  minimum ten-year  sentence mandated by  21 U.S.C.            841(b)(1)(A)(ii) (ten-year  minimum for distribution of five or          more  kilograms  of cocaine).8    At  sentencing, the  government          argued that Pion was responsible, under U.S.S.G.   2D1.1 comment.          (n.12) (1992) [hereinafter:  "note 12"], for the additional three                                        ____________________               7Duren provides an instructive contrast.  There a very large                _____          (39%)  absolute disparity existed between the percentage of women                 ________ _________          in  the  relevant population  and  their  representation on  jury          venires, a  disparity which the Court  found reasonably attribut-          able to a prominent feature in Missouri's jury-selection process;          that is,  the longstanding  practice of granting  women automatic                                      ________                    _________          exemption from jury  service upon  request.  Duren,  439 U.S.  at          _________ ____ ____  _______ ____  _______   _____          366-67.  Pion points to  nothing in the Jury Plan, or  its imple-          mentation,  which  would  account  for the  much  smaller  (3.4%)          absolute disparity alleged here.               8The  presentence  report  recommended  that  Pion  be  held          responsible for 3.5024 kilograms, the combined total delivered on          June 4 (approximately one-half kilogram) and July 3 (three  kilo-          grams).                                          12          kilograms  he negotiated to supply  Mendoza in July.9   The court          determined, pursuant  to note 12,  that Pion was  not "reasonably          capable  of producing"  the three  additional kilograms.10   Then          it supportably found  that the  object of the  conspiracy was  to          distribute in excess of six  kilograms of cocaine, including  the          additional three kilograms Pion agreed to supply Mendoza later in          July.11  Accordingly, the  court concluded that Pion  was subject                                        ____________________               9Note 12 states in relevant part:                    The weight under negotiation in an uncomplet-                    ed  distribution shall  be used  to calculate                    the  applicable amount.   However,  where the                    court finds that the defendant did not intend                    to produce and was  not reasonably capable of                               ___                    producing  the  negotiated amount,  the court                    shall exclude from the  guideline calculation                    the  amount that  it finds the  defendant did                    not intend to produce and  was not reasonably                                          ___                    capable of producing.          (Emphasis added.)               10The district court ruled:                     I am  unable to find by  a fair preponderance                          ______ __ ____                    of the  evidence that Mr. Pion was reasonably                                     ____ ___ ____ ___ __________                    capable of producing  the negotiated  amount.                    _______ __ _________  ___ __________  ______                    I've already  found that he intended  to pro-                    duce  it.   But on this  record, and  by this                    record I  include the presentence  report and                    all the representations made to me, I can not                    find that he  was reasonably capable of  pro-                    ducing the negotiated amount.          (Emphasis added.)                 11The court found                       by a fair preponderance of the evidence [that                    Pion] knowingly, intelligently and voluntari-                    ly entered into a course of conduct the nego-                    tiation for which  was and which contemplated                    the  delivery of  an additional  three kilog-                    rams, or  3,000 grams  of cocaine  within the                                          13          to the ten-year minimum sentence mandated by statute for conspir-          ing  to possess and distribute five or more kilograms of cocaine.          See  21 U.S.C.    841(b)(1)(A)(ii), 846.   Relying on the finding          ___          that he was not  capable of producing the three  additional kilo-          grams negotiated on July 3,  see supra note 10, Pion  argues that                                       ___ _____          the  ten-year   minimum  sentence   mandated   under  21   U.S.C.            841(b)(1)(A)(ii) does not apply.  We disagree.                    Pion's  position is confounded by the fact that note 12          is phrased  in the conjunctive.   See supra note 9.   It requires                                            ___ _____          the sentencing court to include the "weight under negotiation  in          an uncompleted distribution" unless  it finds that "the defendant          did  not  intend to  produce and  was  not reasonably  capable of                                       ___          producing the negotiated amount." Id. (emphasis added).  Further-                                            ___          more, note 12 directs the  sentencing court    once again in  the          conjunctive     to  "exclude from  the guideline  calculation the          negotiated amount that it  finds the defendant did not  intend to          produce  and  was not  reasonably  capable  of  producing."   Id.                   ___                                                  ___          (emphasis added).   Its conjunctive phrasing  clearly is intended          to avoid inflated sentences based on drug-quantity discussions in          uncompleted  transactions where  the defendants were  merely puf-          fing;  that is,  where the  defendants did  not intend,  and were                                                                   ___          unable,  to  produce the  amount  under discussion.    Cf. United                                                                 ___ ______          States v. Moreno, 947 F.2d 7, 9 (1st Cir. 1991) (applying  former          ______    ______                                        ____________________                    following week. . . .                                          14          U.S.S.G.    2D1.4 comment.  (n.1)).  In  sum, Pion's  claim fails          because neither conjunctive clause in note 12 can be ignored.12                     Although the district court  did not find Pion reason-          ably  capable of  producing  the additional  three kilograms,  it          found that  he was a member  of a conspiracy whose  object was to          distribute  more  than six  kilograms  and  that he  specifically          intended  to further  the conspiratorial  objective.   See United                                                                 ___ ______          States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (no "impossibili-          ______    _______          ty" defense available under     841(a)(i) and 846); United States                                                              _____________          v. Everett, 700 F.2d  900, 904 (3d Cir. 1982)  (Congress intended             _______          to eliminate "impossibility" defense  under   846); see generally                                                              ___ _________          Wayne R. LaFave & Austin Scott, Jr., 2 Substantive Criminal Law                                                   ________________________          6.5(b), at  90-93 (1986)  (discussing  limits of  "impossibility"          defense in conspiracy cases).                      The  district  court  correctly concluded  that  Pion's          inability  to  produce  the  additional three  kilograms  was  no                                        ____________________               12Although the parties assume that  the drug-quantity deter-          mination arrived at under note 12 does not govern for purposes of          triggering a  minimum sentence mandated by  statute ["MMS"], see,                                                                       ___          e.g., 21  U.S.C.   841(b)(1)(A)(ii),  note 12  is not limited  in          ____          this  fashion.  Nor is there  a statutory directive that might be          thought to  govern the threshold drug-quantity  determination for          MMS  purposes.   Absent  a statutory  alternative, therefore,  we          think application note  12 provides  the threshold  drug-quantity                                                   _________          calculus upon which depends  the statutory minimum sentence fixed          under 21 U.S.C.   841(b)(1)(A)(ii).  See United States v. Hughes,                                               ___ _____________    ______          970 F.2d  227,  236  n.9  (7th Cir.  1992)  (discussing  U.S.S.G.            2D1.4, a forerunner to U.S.S.G.   2D1.1 comment. (n.12) (1992)-          ).                                          15          impediment  to its  imposition of  the ten-year  minimum sentence          mandated by statute.13                     Affirmed.                     ________                            - Concurring Opinion Follows -                              __________________________                                        ____________________               13Since there has  been no showing of error,  Pion's cumula-          tive-error claim collapses.                                          16                    TORRUELLA,  Circuit Judge  (Concurring).    Although  I                                _____________          agree  with  my colleagues  on  all  parts of  this  well-crafted          opinion, with the  exception of Part E thereof --  and even as to          that,  I conclude that appellant has failed to raise a cognizable          claim  before this court -- I must express myself separately with          respect to  the substance of the majority's reasoning in reaching          our common result.                    First of  all, the  court has reached  issues and  made          pronouncements thereon, which are  not properly before us.   I am          referring to appellant's allegation that the jury pool from which          the  petit jury was drawn  does not represent  a cross-section of          the community, thus violating the Sixth Amendment of  the Consti-          tution.  See, Duren v. Missouri, 439 U.S. 357 (1979).                   ___  _____    ________                    This contention  was raised by appellant, after convic-                                                              _____          tion,  as part  of a  supplemental motion  for a  new trial.   It          therefore clearly fails to comply with the provisions of the Jury          Selection  and Service Act of 1968, 28 U.S.C.   1861-1876, pursu-          ant to which:                      In  criminal  cases,  [challenges to  the                      composition of  the jury must  be raised]                      before the voir dire  examination begins,                      or  within seven days after the defendant                      discovered or could  have discovered,  by                      the  exercise  of diligence,  the grounds                      [for such a challenge] . . .          28 U.S.C.   1867(a).  This statute further establishes that:                      The procedures prescribed by this section                      shall be the exclusive  means by which  a                      _____        _________                      person accused of a  federal crime, . . .                      may challenge any jury on the ground that                      such jury was not selected  in conformity                      with the provisions of this title.                                         -16-                                          16          28 U.S.C.   1877(e) (emphasis added).                    The  government's  apparent  lapse  in  not challenging          appellant's failure to comply with  these mandatory requirements,          and the district court's complacency therewith, are irrelevant to          determining  whether the issue is  properly before us.   The jury          challenge requirements  are to be strictly  construed and failure          to comply precisely with their terms  forecloses any challenge to          the composition of  the jury.  United States v.  Cooper, 733 F.2d                                         _____________     ______          1360 (10th Cir. 1984), cert. denied, 467 U.S. 1255 (1984); United                                 ____________                        ______          States v. Green,  742 F.2d 609 (11th Cir. 1984); United States v.          ______    _____                                  _____________          Raineri, 670 F.2d  707 (7th  Cir. 1982), cert.  denied, 459  U.S.          _______                                  _____________          1035  (1982); United States v.  Bearden, 659 F.2d  590 (11th Cir.                        _____________     _______          1981), cert. denied, 456 U.S. 936 (1981); United States v. Young,                 ____________                       _____________    _____          570 F.2d 152 (6th Cir. 1978); United States  v. D'Alora, 585 F.2d                                        _____________     _______          16  (1st Cir. 1978); Government of Virgin Islands v. Navarro, 513                               ____________________________    _______          F.2d  11  (3d Cir.  1975), cert.  denied,  422 U.S.  1045 (1975);                                     _____________          United States v. Fern ndez,  497 F.2d 730 (9th Cir.  1974), cert.          _____________    _________                                  _____          denied, 420 U.S. 990  (1974).  Any objection to  jury composition          ______          which is not timely raised is considered waived for all purposes.          United States v.  Webster, 639  F.2d 174 (4th  Cir. 1981),  cert.          _____________     _______                                   _____          denied,  454 U.S.  857  (1981); United  States  v. Young,  supra;          ______                          ______________     _____   _____          United States v. Grismore, 546 F.2d 844 (10th Cir. 1976).          _____________    ________                    The  record shows  that appellant  failed to  raise the          jury  composition  issue in  a timely  fashion,1  and thus,  as a                                        ____________________               1There  is no  allegation  that appellant  was impeded  from          doing so for any valid reason, or that the information upon which          his claim is based was unavailable.                                         -17-                                          17          matter of law, he  is foreclosed from  the right to contend  this          matter on appeal.   We therefore need go no further.   Yet we do,          and  I am  thus  required to  express  my disagreement  with  the          majority's unnecessary dicta regarding the merits of this issue.                    As is well known, to establish a  prima facie violation          of  the cross-section  requirement, a  petitioner must  show: (1)          that  the group  alleged  to be  excluded  is a  "cognizable"  or          "distinctive" group in the community; (2) that the representation          of this group  in venires from  which juries are selected  is not          fair and reasonable  in relation to the number of such persons in          the  community; and  (3)  that the  underrepresentation in  peti-          tioner's venire is due  to the systematic exclusion of  the group          in  the jury-selection process.  Duren v. Missouri, 439 U.S. 357,                                           _____    ________          364 (1979); Hern ndez v. Texas, 347 U.S. 475, 579 (1954).                      _________    _____                    There  should  be  little   doubt  regarding  the  cog-          nizability  of  Hispanics  for  Sixth Amendment  purposes.    See                                                                        ___          Hern ndez  v. Texas, 347 U.S.  at 475; Thiel  v. Southern Pacific          _________     _____                    _____     ________________          Co., 328  U.S. 217,  220 (1986).   Where I  part company  with my          ___          colleagues is in our relative application of the second and third          Duren prongs.          _____                    In my view, in contrast with the majority,  the figures          presented by  appellant show  a statistically  significant under-          representation of Hispanics within the jury venire.  According to          the 1990 census, 4.2%  of the residents within the  Eastern Divi-          sion of  the District  of Massachusetts, the  relevant community,          are  Hispanics.  Yet Hispanics represent only .80% of the venires                                         -18-                                          18          for  that Division.   Otherwise  stated, although  the population          composition is such that  one would expect 42 Hispanics  to serve          on  the district  court's  jury for  every one-thousand  citizens          called  to such duty, in  fact only eight  Hispanics serve in the          venires  for  every  one-thousand  citizens  called.    Appellant          further contends  that  when  compared  with  other  identifiable          ethnic groups,  such as  non-minority whites, blacks  or American          Indians, only Hispanics are disproportionately underrepresented -          - and the statistics were produced to support this contention.                    According to  my calculations,  if one takes  the above          figures as correct, Hispanics  are underrepresented in the venire          by 80.95% as compared to their numbers in the community.2   Duren                                                                      _____          v. Missouri, supra, at 364.  Such a disparity is not only statis-             ________  _____          tically significant  but also  constitutionally cognizable.   Id.                                                                        ___          My  method of  determining disparity  is dubbed  the "comparative          disparity" standard by my  colleagues, ante at 8 n.5,  which they                                                 ____          understand  should  not be  used  "where  [the] allegedly  under-          represented group  constitutes [a]  very small proportion  of the          total population."  Id.  Citing  United States v. Hafen, 726 F.2d                              ___          _____________    _____          21, 23-24 (1st  Cir. 1984), they promote  the so-called "absolute          disparity" standard, ante at 9 nn.5-6, whereby they conclude that                               ____                                        ____________________               2This  percentage  of  underrepresentation  is  measured  by          calculating  the  shortfall  between the  percentage  of eligible                            _________          Hispanic  jurors (4.2%)  and the  percentage appearing  for juror          orientation (0.8%),  i.e., 3.4%, and then  dividing the shortfall                                                                  _________          in Hispanic  representation (3.4%) by the  percentage of eligible          Hispanics (4.2%).                                         -19-                                          19          the  underrepresentation is only 3.4%,3 a spread which is said to          be  constitutionally insignificant.    Hafen tells  us that  this                                                 _____          system of calculating disparity should be used where the cogniza-          ble group is  small because if the "comparative disparity" method          is  used under those  circumstances, it will  distort "reality."           Hafen, 726 F.2d at 24.          _____                    I  believe  this  to  be an  erroneous  conclusion  for          several reasons.  First of  all, I find Hafen to run  contrary to                                                  _____          prior,  valid circuit precedent in  La Roche v.  Perrin, 718 F.2d                                              ________     ______          500 (1st Cir. 1983),  which established the so-called comparative          disparity calculation  as  the circuit  standard for  determining          underrepresentation.  See also Barber v. Ponte, 772 F.2d 982, 989                                ________ ______    _____          n.n.11,  12 (1st Cir. 1985).   Hafen's attempt  to distinguish La                                         _______                         __          Roche is unconvincing.   Secondly, the majority's approach leaves          _____          us  without any guide or standard as to when the cognizable group          is  to be  considered too  small or  large so  as to  trigger the          switch from  one standard to  the other.   It  would appear  that          applying  different constitutional  standards  to varied  groups,          depending  on whether  they are  large or  small, would  not only          raise substantial  equal protection issues, but  would defeat the          important goals  promoted by the  Jury Selection and  Service Act          and the Sixth Amendment.  The minorities  most in need of protec-          tion  are  those least  entitled to  it,  to allegedly  prevent a          "distortion  of reality."   I  might ask  who's "reality"  are we          talking about?  To my  view, the true distortion of "reality"  is                                        ____________________               34.2% - .8% = 3.4%.                                         -20-                                          20          the  failure of a  criminal law system,  before which is  tried a          large number of persons  from an ethnic group, to  include within          its  mechanisms  the peers  of those  charged,  at least  in some          reasonable measured proportion to their membership in the popula-          tion.   Finally, on  its face the  so-called "absolute disparity"          standard appears to run  contrary to Duren, which speaks  to "the                                               _____          representation of  [the] group in the community . . . in relation          [i.e.,  in comparison]  to  the number  of  such persons  in  the          community."  Duren, supra, at 364.  This language seems  to speak                       _____  _____          in comparative, not in absolute, terms.             ___________                    We  thus come  to  the issue  of systematic  exclusion.          Normally, systematic exclusion requires a showing of  substantial          disparity in numbers over  a sustained period of time,  Barker v.                                                                  ______          Ponte, 772 F.2d 982, 989 (1st Cir. 1985), something which has not          _____          been  established by appellant in this case.  I believe, however,          that where the disparity established by  the claimant reaches the          proportion  of those in the present case, 80.95%, the burden must                                                    ______          be  shifted to  require the  government to  justify that  such an          aberration  is not the product of inappropriate conduct.  In most          cases, such  as perhaps the present one,  this should be a burden          easily explainable by the government.                    Had appellant complied  with the absolute  requirements          of  28 U.S.C.    1867, I  would  have voted  for reversal  of his          conviction.  Having  failed to  do so, however,  I concur in  the          affirmance  of his  conviction,  although as  indicated above,  I          believe that at least part of the majority's reasoning is flawed.                                         -21-                                          21
