February 9, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 92-1901

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                   JORGE L. RODRIGUEZ ALVARADO
                      Defendant, Appellant.

                                         

                           ERRATA SHEET

     The opinion of  this Court  issued on February  4, 1993,  is
amended as follows:

     Cover sheet:   "District Judge" should  be added after  "and
                                   
Keeton,*".

February 4, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1901

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                   JORGE L. RODRIGUEZ ALVARADO,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Hector M. Laffitte, U.S. District Judge]
                                                       

                                           

                              Before

                Torruella and Cyr, Circuit Judges,
                                                 

                    and Keeton,*District Judge
                                              

                                           

   Juanita Trevino for appellant.
                  
   Jeanette  Mercado  R os, Assistant  United States  Attorney, with
                          
whom Daniel F.  Lopez, United States Attorney, was on brief for appel-
                   
lee.

                                           

                                           

                  

*Of the District of Massachusetts, sitting by designation.

          CYR, Circuit  Judge.  Jorge Rodriguez  Alvarado appeals
          CYR, Circuit  Judge.
                             

the judgment  of conviction and  sentence entered against  him on

four  felony charges arising out  of a scheme  to counterfeit and

distribute one hundred  dollar bills, in  violation of 18  U.S.C.

   371, 471-474 and 2.1  We affirm.

                                I

                            BACKGROUND
                                      

          On January 20,  1992, Secret Service agents  executed a

search  warrant at a VCR repair shop  in Ponce, Puerto Rico.  The

warrant  was based  on information  provided by  Carlos Gutierrez

Borrero.   Following his own arrest  for distributing counterfeit

one  hundred dollar bills, Gutierrez  had identified the owner of

the VCR repair shop, Luis Oliveras Quintana, as the source of the

counterfeit obligations.  Counterfeit bills in one hundred dollar

denominations totaling $392,000 were  seized at the shop.   After

Oliveras  was arrested, he  agreed to cooperate  with the govern-

                    

     1Appellant was charged with  conspiracy to violate 18 U.S.C.
  471 and with aiding  and abetting violations of   472,  473 and
474.  Section 471  criminalizes the false making,  forging, coun-
terfeiting, or  altering of any  obligation or other  security of
the United States, with  intent to defraud;   472:   the passing,
uttering, publishing, or  selling, with intent to defraud, of any
falsely  made, forged,  counterfeited,  or altered  obligation or
other security of the United States;   473:  the buying, selling,
exchanging, transferring, receiving, or delivering, of any false,
forged, counterfeited, or altered obligation or other security of
the  United  States, with  the intent  that  the same  be passed,
published,  or used as true and genuine;   474:  printing, photo-
graphing, or in any other manner making or executing, any engrav-
ing, photograph, print, or impression in the likeness of any such
obligation  or other  security.   Section  371 criminalizes  con-
spiracies  to defraud  the United  States;   2:   the  aiding and
abetting of an offense against the United States.

ment.  Oliveras advised the agents that appellant was expected to

visit  the shop on January 21  to collect the  cash proceeds from

the sale of  the counterfeit and to pick up  the remainder of the

undistributed counterfeit bills.

          On  January 21,  under  Secret   Service  surveillance,

appellant arrived at the shop and Oliveras handed him a briefcase

containing the undistributed counterfeit bills.  A Secret Service

agent overheard  appellant inquiring about "series  11."2  Appel-

lant removed three bills from the briefcase, put something in his

pocket,  then left  the  shop and  placed  the briefcase  in  his

vehicle,  whereupon  he  was  arrested.   Following  his  arrest,

undistributed  counterfeit bills  were  found in  the  briefcase,

three more were removed  from his pocket, and a  notation bearing

the name "Carlos Gutierrez Borrero" was found in his wallet.

          Oliveras continued  to cooperate by providing  a state-

ment  minimizing his  own responsibility  for the  counterfeiting

scheme.   After failing a polygraph examination, he admitted to a

larger role in  the counterfeiting scheme.   Both statements made

by  Oliveras were disclosed prior to trial, but appellant was not

informed of the polygraph testing or the test results.

          As a consequence of Oliveras' cooperation, the printing

equipment  and paraphernalia  were seized  and appellant  and his

                    

     2The trial testimony explained  that "series 11" referred to
counterfeit bills which were the best quality imitations, bearing
serial numbers ending in "11".

                                4

four codefendantswere indicted.  The otherdefendants pled guilty.

          At appellant's trial, the government presented testimo-

ny that appellant had approached Oliveras with a plan to make and

distribute counterfeit  one hundred dollar bills  and that appel-

lant  had  indicated to  Oliveras that  he  knew people  who were

interested in purchasing the counterfeit.  The evidence indicated

that  appellant  and one  Freddie  Velez provided  the  paper for

printing the  counterfeit bills  and, though not  present at  the

actual printing, that appellant expected  to share in the profits

from the counterfeiting operation.  After a three-day jury trial,

appellant was convicted on all four counts.   He was sentenced to

concurrent forty-five month terms on each count.

                                II

                            DISCUSSION
                                      

Sufficiency of the Evidence
                           

          Appellant seems to assert that the jury verdicts on the

three substantive counts  cannot stand, as there  was no evidence

that  he was  present  at the  time  the counterfeit  bills  were

printed; and that  the conspiracy conviction cannot  stand, as it

was based on "mere presence" at the crime scene on January 21.

          Under the  "offense clause" of section  371, a sustain-

able conviction requires proof beyond a reasonable doubt that the

defendant conspired  to commit the substantive  offense which was

the  object of the unlawful  agreement.  United  States v. Lopez,
                                                                

944  F.2d 33, 39 (1st  Cir. 1991); United  States v. Sanchez, 917
                                                            

                                5

F.2d 607,  610 (1st  Cir. 1990), cert.  denied, 111  S. Ct.  1625
                                              

(1991).   A  conviction  for aiding  and  abetting a  substantive

offense requires proof beyond a reasonable doubt that  the defen-

dant associated  himself with  the commission of  the substantive

offense, participated  in  it as  something  he wished  to  bring

about, and  sought by his  actions to  make it  succeed.   United
                                                                 

States  v. Ortiz,  966 F.2d 707,  711 n.1 (1st  Cir. 1992), cert.
                                                                

denied,  61 U.S.L.W. 3479 (U.S. 1993); United States v. Lema, 909
                                                            

F.2d 561,  569 (1st Cir. 1990).   Evidence of "mere presence" can

sustain  neither a  conviction for  conspiracy, United  States v.
                                                              

Tejeda,  974  F.2d 210,  213 (1st  Cir.  1992); United  States v.
                                                              

Ocampo,  964 F.2d  80, 82  (1st  Cir. 1992),  nor for  aiding and
      

abetting,  United States v. Clotida,  892 F.2d 1098, 1104-05 (1st
                                   

Cir. 1989); United States  v. Francomano, 554 F.2d 483,  486 (1st
                                        

Cir. 1977).

          We assess the sufficiency  of the evidence as  a whole,

including all reasonable inferences,  in the light most favorable

to the verdict,  with a view to whether a  rational trier of fact

could have found the defendant guilty beyond a reasonable  doubt.

See,  e.g., United States v.  Figueroa, 976 F.2d  1446, 1459 (1st
                                      

Cir. 1992);  United States  v. Lopez, 944  F.2d 33, 39  (1st Cir.
                                    

1991).   The evidence may be entirely circumstantial and need not

exclude every reasonable hypothesis of innocence; in other words,

the  jury may  accept any  reasonable interpretation of  the evi-

dence, United States  v. Batista-Polanco,  927 F.2d  14, 17  (1st
                                        

Cir. 1991), and we must do the same.

                                6

          The  evidence  was  sufficient to  establish  beyond  a

reasonable  doubt that  appellant  knowingly  conspired to  make,

possess,  and  deliver counterfeit  obligations,  with  intent to

defraud  the United  States, and  that he  aided and  abetted the

possession, delivery  and  printing of  counterfeit  obligations.

The  evidence revealed  that the five  co-conspirators, appellant

among them,  caused approximately $800,000 in counterfeit obliga-

tions  to be printed.  Appellant not only suggested that Oliveras

print  the counterfeit  obligations but  provided the  paper, ar-

ranged a  distribution network, aided and  abetted the collection

of the illicit proceeds,  and personally recovered the undistrib-

uted counterfeit bills.

          The  contention  that  he  could not  be  convicted  of

conspiracy unless he was at the shop when  the bills were printed

is as  bogus as  the bills  printed in his  absence.   "[U]nder a

basic tenet of traditional  conspiracy theory . . . a conspirator

is  responsible  for acts  his  or  her co-conspirators  executed

during  the  existence and  in  furtherance  of the  conspiracy."

United  States  v. Sabatino,  943 F.2d  94,  96 (1st  Cir. 1991);
                           

Figueroa, 976  F.2d at 1446.   Similarly, appellant's convictions
        

for  aiding and  abetting the  printing of  the bogus  bills were

amply supported by  the evidence that  he initiated the  counter-

feiting  scheme, recruited  Oliveras, and  provided the  paper on

which the bills were printed.

                                7

Evidentiary Rulings
                   

          Appellant challenges two evidentiary rulings,  which we

review for abuse of discretion.  United States  v. Arias-Santana,
                                                                

964  F.2d 1262, 1264 (1st Cir. 1992); United States v. Abreu, 952
                                                            

F.2d 1458, 1467 (1st Cir.), cert. denied, 112 S. Ct. 1695 (1992).
                                        

          First,  appellant asserts that the district court erred

in admitting evidence  seized from  the shop,  consisting of  the

printing press, lamp,  paper, and ink used in  the counterfeiting

process.   He frivolously contends  that the seized  evidence was

not  relevant to  the  charges against  him  because he  was  not

present  at  the time  the  bills were  printed.   As  a founding

member,  however, appellant  was  criminally responsible  for all

acts  committed in furtherance of  the conspiracy.  See Figueroa,
                                                                

976 F.2d at 1452 (evidence of recorded statements of coconspirat-

ors admissible against defendant).

          Second, appellant claims that  the district court erred

in excluding, as  hearsay, the allegedly exculpatory  post-arrest

statements of  codefendants Velez  and Santiago, neither  of whom

was called  to testify at trial.   He argues that  the statements

were admissible  as coconspirator statements pursuant  to Fed. R.

Evid.  801(d)(2)(E).   Appellant's argument  misses the  mark, as

Evidence  Rule 801(d)(2)(E)  applies to  coconspirator statements

made  "during the course  and in furtherance  of the conspiracy,"

Fed. R. Evid. 801(d)(2)(E);  see also Ortiz, 966 F.2d  at 714-15,
                                           

whereas these statements were made neither during nor in further-

ance of the conspiracy.

                                8

Nondisclosure of Polygraph Testing and Results
                                              

          Appellant claims that the  government failed to provide

adequate pretrial discovery  by withholding the information  that

Oliveras took and failed  a polygraph test.  According  to appel-

lant,  knowledge of the  failed polygraph  would have  helped the

defense establish that  Oliveras lied.   We must  reverse if  the

totality of  the circumstances  indicates that the  nondisclosure

"'might  have affected the outcome of the trial.'"  United States
                                                                 

v. Devin, 918 F.2d 280, 289 (1st Cir. 1990), citing United States
                                                                 

v. Agurs, 427 U.S. 97, 104 (1976); Sanchez, 917 F.2d  at 618; see
                                                                 

also  Barrett v.  United States,  965 F.2d  1184, 1189  (1st Cir.
                               

1992).

          Under  all  the circumstances,  we  are satisfied  that

nondisclosure  of  the  polygraph  could not  have  affected  the

outcome of the trial.  During pretrial discovery, the defense was

provided with  the two inconsistent statements  made by Oliveras.

Appellant  therefore was well  aware that at  least one statement

was false, at least in part, which plainly enabled the defense to

challenge Oliveras' credibility on  that ground.3  Thus, evidence

of  Oliveras' failure to pass the polygraph was cumulative to the

inconsistent  statements previously  introduced in  evidence, see
                                                                 

Sanchez, 917  F.2d at  618 (nondisclosure of  cumulative evidence
       

not material to conviction) (citing cases), especially in view of

                    

     3Oliveras' initial statement falsely asserted that appellant
was  almost totally  responsible for  the counterfeiting  scheme.
The  second statement  conceded that  Oliveras had  a significant
role in the conspiracy.

                                9

the  vigorous  impeachment to  which  Oliveras  was subjected  on

cross-examination, see  United States v. Shelton,  588 F.2d 1242,
                                                

1248 (9th Cir.  1978), cert.  denied, 442 U.S.  909 (1979)  ("Im-
                                    

peachment evidence,  even that  which tends to  further undermine

the credibility  of the key Government  witness whose credibility

has already been shaken  due to extensive cross-examination, does

not create a reasonable  doubt that did not otherwise  exist when

that evidence is cumulative or collateral.") (citations omitted).

Finally,  after  the  testimony of  Oliveras,  during  government

counsel's  direct  examination  of  the  agent  who  interrogated

Oliveras,  the jury was made  aware that Oliveras  had failed the

polygraph test.  The defense in turn inquired about the polygraph

on cross-examination of the government agent, but made no request

to recall Oliveras.

          We therefore  conclude that the  government's imprudent

decision to withhold pretrial disclosure of the polygraph testing

and results could not have altered these jury verdicts.

Variance
        

          Although appellant alleges that there was an "impermis-

sible variance between the offense as presented to the Grand Jury

. . .  and the case presented  in Court," he  identifies no vari-

ance.  See,  e.g., United States v. Zannino, 895  F.2d 1, 17 (1st
                                           

Cir.), cert. denied, 494 U.S. 1082 (1990) (arguments adverted  to
                   

with no  attempt at  developed argumentation are  deemed waived).

Even  if the variance claim  were not deemed  waived, however, we

would reject it,  as the indictment clearly apprised appellant of

                                10

the charges against him  and the evidence presented at  trial was

"relevant  to and within the scope of  the crimes" charged in the

indictment.  United  States v.  Sutton, 970 F.2d  1001, 1007  n.8
                                      

(1st  Cir. 1992)  (no  variance where  indictment fully  apprised

defendant  of  crimes with  which he  was  charged).   See United
                                                                 

States v. Medina, 761 F.2d 12, 16 (1st Cir. 1985) (same).
                

U.S.S.G.   3B1.1(b)
                   

          Finally, appellant challenges the  three-level enhance-

ment imposed pursuant to U.S.S.G.   3B1.1(b).  The district court

found that  appellant was a  "manager or supervisor"  of criminal

activity involving five or more participants.  We review role-in-

offense rulings for clear  error.  United States v.  Schultz, 970
                                                            

F.2d  960, 963-64 (1st Cir. 1992), cert. denied, 61 U.S.L.W. 3479
                                               

(1993); United States  v. Panet-Collazo, 960  F.2d 256, 261  (1st
                                       

Cir.), cert. denied, 113 S. Ct. 220 (1992).
                   

          Section 3B1.1  of the Sentencing  Guidelines prescribes

offense level  enhancements based  "upon the  size of a  criminal

organization (i.e.,  the number  of participants in  the offense)
                  

and the degree to which the defendant was responsible for commit-

ting  the  offense."    U.S.S.G.     3B1.1,  comment.  (backg'd).

Section 3B1.1(b) directs  an increase in the offense  level "[i]f

the defendant was a  manager or supervisor (but not  an organizer

or leader) and the  criminal activity involved five or  more par-

ticipants  or  was  otherwise  extensive."   Although  the  terms

"manager" and "supervisor" are not defined in the Guidelines, the

application  notes  to  section  3B1.1  list  seven  nonexclusive

                                11

factors for use in distinguishing a "leadership and organization-

al role [for  which section 3B1.1 provides  a four-level increase

if the criminal activity involved five or more participants] from

one of mere management or supervision."  Id. comment. (n.3).4
                                            

          The presentence  report  recommended a  four-level  in-

crease due  to appellant's  aggravated role  as  an organizer  or

leader of a  criminal activity involving  five participants.   In

response to defense objections  at sentencing, the court declined

to adopt the recommendation in the presentence report.  The court

nevertheless found that  three of the seven factors to be used in

distinguishing a "leader or organizer"  from a "manager or super-

visor" were  satisfied  in  the  present case:    recruitment  of

accomplices, a  substantial role  in planning and  organizing the

offense,  and  the  extensive  nature and  scope  of  the illegal

activity.   The  court  found in  particular  that appellant  had

"seduced" Oliveras into joining  the conspiracy and that Oliveras

in turn  had  brought in  others,  including those  who  actually

printed the  counterfeit; that appellant, under  an assumed name,

purchased  the paper  on which  the counterfeit  obligations were

printed;  and  that the  illegal  activity  was extensive  as  it

involved approximately $800,000 in counterfeit obligations.

                    

     4The factors listed in   3B1.1, comment. n.1 are:

     the exercise of  decision making authority,  the nature
     of participation in the  commission of the offense, the
     recruitment  of  accomplices,  the claimed  right  to a
     larger  share of the fruits of the crime, the degree of
     participation  in planning  or organizing  the offense,
     the nature and  scope of the illegal activity,  and the
     degree of control and authority exercised over others.

                                12

          There was  no clear error in the  enhancement of appel-

lant's sentence  as a  "manager or  supervisor."   The sentencing

court explicitly found that appellant played an important role in

planning and organizing the  offense, which entailed an increased

degree of responsibility for  the commission of the offense.   As

this court  has noted, the  section 3B1.1 enhancement  applies if

the  defendant  "exercised some  degree  of  control over  others

involved in the commission  of the crime or he  [was] responsible
                                                                 

for organizing others for the purpose of carrying out the crime."
                                                               

United  States v.  Fuller, 897  F.2d 1217,  1220 (1st  Cir. 1990)
                         

(emphasis added); see also United States v. Brown, 944 F.2d 1377,
                                                 

1381 (7th Cir. 1991)  (same).  Finally,  we find no clear  error,

particularly in light of  appellant's critical role in recruiting

a reluctant  Oliveras, a  well-known figure in  criminal circles,

who  was indispensable to the conspiracy in that he alone appears

to  have  been able  to recruit  others  capable of  printing the

counterfeit obligations.   See United States v. Pierce,  907 F.2d
                                                      

56,  57 (8th  Cir.  1990) (recruitment  finding "provides  strong

support for  the conclusion that [defendant]  played a managerial

or supervisory role under   3B1.1(b)").

          Affirmed.
                  

                                13
