When he arrived at Logan Airport on the morning of November 23, 1988, defendant Castiello was right on time for the long-awaited meeting with "Joe." It was the eve of Thanksgiving and the defendant's ambitious drug distribution scheme, possessing little substance at the start, at last seemed about to take on more as Castiello surrendered $68,000 in cash to undercover agent "Joe" Desmond for four kilograms of imaginary cocaine. The fly was in the ointment all along, of course, its flight plan delayed just long enough to ensure that Castiello not sense the sting until all voluntary statements against penal interest were preserved on tape. After appellant was apprehended red-handed, he was tried, convicted, and sentenced under 21 U.S.C. Secs. 841(a)(1), (b)(1)(B) and 846 for attempting to possess, with intent to distribute, a Schedule II controlled substance. As there is no discernible substance to the appeal, we affirm the district court judgment.

* The first contention advanced on appeal is that the district court erred by allowing Agent Desmond to interpret the following taped admission by the defendant: "[I] [u]sed to buy stuff off him seven or eight years ago for 35, 37, 33, 34, so you know the market changes, you know what I'm saying?"1 After the district court overruled a defense objection,2 Desmond responded, "There is one thing, other than the obvious, that by naming prices seven, eight years ago, that indicates to me obviously that the defendant was in business seven or eight years ago." Defense counsel moved for mistrial on grounds that the answer was unresponsive, improper and prejudicial. The court denied the motion for mistrial.

The defendant maintains on appeal that the taped admission interpreted by Desmond contains no drug jargon, only "plain language" that a jury would have no difficulty understanding. Therefore, defendant argues, Desmond's interpretation was not "helpful" to the jury, in the sense intended by Federal Rule of Evidence 702,3 and constituted improper "other acts" evidence under Federal Rule of Evidence 404(b).

We review the district court's denial of the motion for mistrial under an abuse of discretion standard, see United States v. Giorgi, 840 F.2d 1022, 1036 (1st Cir.1988); United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S. Ct. 462, 74 L. Ed. 2d 613 (1982), according considerable deference to its determination that the expert testimony would be helpful to a jury in these circumstances, see United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.1987) ("Lay jurors cannot be expected to be familiar with the lexicon of the cocaine community.").

We conclude that the district court acted well within its discretion. As the statement intimates in haec verba ("you know what I'm saying?"), the vocabular form the defendant employed with Desmond was not so readily comprehensible to the layman that it could not bear elucidation by a law enforcement agent knowledgeable in the ways of the drug world. The admission was phrased in drug world jargon. For instance, we do not think that a lay jury reasonably could be expected to know that "35, 37, 33, 34" referred to prices for a kilogram of cocaine seven or eight years earlier, much less what those prices were.4 See Hoffman, 832 F.2d at 1310.

Desmond's interpretive testimony that the defendant had been in the drug business seven or eight years earlier amounted to no more than an inexorable corollary to Castiello's taped admission that he "[u]sed to buy stuff ... seven or eight years ago...." Assuming, as defendant contends, that the statement needed no interpretation, it follows that the jury already understood, from having heard that portion of the tape played previously, that the defendant was in the drug business seven or eight years ago. In that event there can have been no unfair prejudice. At most, Desmond's testimony represented a harmless reiteration of the taped statement already heard by the jury. See, e.g., supra note 1. Conversely, assuming, as we conclude, that the taped statement did warrant expert interpretation, there was no basis for its exclusion under Evidence Rule 702.

Although the defendant further contends on appeal that Desmond's interpretation of the drug world jargon constituted "wrongful act" character evidence inadmissible under Evidence Rule 404(b),5 no Rule 404(b) objection was raised at trial, as required by Evidence Rule 103(a)(1),6 either when the recorded statements were heard by the jury or when Desmond's interpretative testimony was received in evidence.7

We have explained that Evidence Rule 103(a)(1) was designed to require an objecting party "to alert the trial court and the other party to the grounds of the objection so that it may be addressed or cured." United States v. Walters, 904 F.2d 765, 769 (1st Cir.1990). Not only did defendant's objection not refer to Rule 404(b), or mention a ground based in the substance of Rule 404(b), it intimated no basis of objection other than Rule 702, except, conceivably, Evidence Rule 403.8 As the objection was not sufficiently specific to alert the court that it contemplated a basis in Rule 404(b), we review for plain error. United States v. Gonzalez-Sanchez, 825 F.2d 572, 583 n. 27 (1st Cir.1987) (where objection did not refer to Rule 404(b), held: "[w]ithout a timely objection stating the specific grounds therefor, our review is limited to plain error"); Fed.R.Evid. 103(d); Fed.R.Crim.P. 52(b).

As we stated in United States v. Zeuli, 725 F.2d 813 (1st Cir.1984):

The most striking aspect of ... [Evidence Rule 404(b) ] is its inclusive rather than exclusionary nature: should the evidence prove relevant in any other way it is admissible, subject only to the rarely invoked limitations of Rule 403. United States v. Fosher, 568 F.2d 207, 212 (1st Cir.1978). Moreover, the test of admissibility is committed primarily to the trial court. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.1975).

Id. at 816 ("intent" exception to Rule 404(b) warranted admission of evidence). See United States v. Mazza, 792 F.2d 1210, 1223 (1st Cir.1986) ("Mazza's statements to Agent Kelly (who was posing as the 'Florida source') tended to show an effort by Mazza to impress Kelly with his 'experience' in the drug trade and thereby to encourage Kelly to go ahead with the transaction. Thus, Mazza's remarks were probative of his intent...."), cert. denied, 479 U.S. 1086, 107 S. Ct. 1290, 94 L. Ed. 2d 147 (1987). See supra note 1. See also United States v. Medina, 761 F.2d 12, 15 (1st Cir.1985) (two step application of Rule 404(b): first, determine whether the evidence has "special" probative value, i.e., shows "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;" second, balance its probative value against any unfair prejudice). Like the statement itself, Desmond's translation was probative of defendant's "intent." See Fed.R.Evid. 404(b). There was no error in its admission in evidence.

The second contention is that Desmond's interpretive testimony preordained a reluctant decision to employ an entrapment defense. The record belies Castiello's claim. Five months before trial the tape recordings of the incriminating admissions were made available to defense counsel, who submitted a proposed entrapment instruction prior to trial. The record demonstrates that entrapment offered whatever prospect remained for mounting a successful defense after the jury heard the defendant's damning admissions on tape. We are unimpressed with the claim that Castiello was forced to resort to an entrapment defense in order to counter Desmond's interpretation of the admission that Castiello had been in the drug business seven or eight years earlier, particularly since that admission was made after defendant's uninterpreted admission that he had "been in business for ten years."9

Castiello asserts that the sentence imposed under the Sentencing Guidelines should be set aside on the ground that the district court was unaware that the Sentencing Guidelines permit downward departures. See United States v. Tucker, 892 F.2d 8, 9 & n. 2 (1st Cir.1989) (no appeal from denial of request to depart downward under Sentencing Guidelines, unless district court unaware of discretion to depart).10

The sentencing judge was aware that a sentence of imprisonment below the sentencing guideline range may be imposed without contravening the Sentencing Guidelines. At the sentencing hearing, defense counsel requested "a downward departure as the Court is entitled to do...." Defense counsel volunteered that "there are a number of cases which suggest that there is still discretion, as Your Honor knows, under specific provisions of the Guidelines." The court expressed its intention to consider a downward departure only after evaluating the relevant facts and "to what extent there is any ability to exercise ... 'discretion'...." The judge stated that he would determine the requirements of the sentencing guideline "mechanics" before determining "what, if any, level of discretion ... is available." Although aware of the discretionary power to depart downward from the sentencing range, the district court elected to impose the minimum sentence within the guideline sentencing range. Thus, the record reveals that the court considered, and expressly rejected, a downward departure in the present case.11

We therefore are without jurisdiction to entertain defendant's challenge to the district court's refusal to depart downward under the Sentencing Guidelines. Tucker, 892 F.2d at 9 n. 2.

The final contention on appeal is that the sentencing judge should have considered that 21 U.S.C. Sec. 841(b)(1)(B) did not accord requisite due process notice of the criminal penalties for violating section 841(a)(1). Castiello relies on United States v. Colon-Ortiz, 866 F.2d 6 (1st Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 1966, 104 L. Ed. 2d 434 (1989), in which the defendant argued that section 841(b)(1)(B) "violates due process by imposing two inconsistent penalty schemes, one allowing the court to impose merely a fine and the other requiring the imposition of a five-year minimum term of imprisonment." Id. at 8.12 The defendant in Colon-Ortiz argued that "the statute should be declared unconstitutional because it fails to provide adequate notice of the contemplated penalties for a Section 841(a)(1) violation." Id.

We determined in Colon-Ortiz that the language of section 841(b)(1)(B) is internally inconsistent, that it "constitutes a notice deficiency and raises serious due process concerns." Id. at 9. We held, nonetheless, that there was no due process violation because the defendant "was not harmed by the [notice] deficiency." Id. at 10. We went on to explain that the district court, in denying the defendant's motion to dismiss in Colon-Ortiz, had determined that the most lenient reading of the sentencing provision would not have helped Colon-Ortiz. Id.

'[A]mbiguity requires the application of the most lenient interpretation of the sentencing provision. In this case that would mean only that the court would have had the option of the imposition of a suspended sentnece [sic] or probation with a fine, an option I would not have chosen anyway.' United States v. Ortiz, No. 87-297, slip op. at 2 (D.Mass. Feb. 17, 1988). Given the district court's determination that the defendant should receive some term of imprisonment, under any reading of the statute the court was required to impose the five-year minimum sentence.

Id. at 10-11. And so it is in the present case.

The Sentencing Guidelines prescribe a ninety-seven month minimum term of imprisonment for the crime of which Castiello was convicted. The district court, aware of its discretion to depart downward, decided not to do so. Thus, the district court implicitly determined that a sentence of imprisonment, rather than a fine or probation, was required in any event. Therefore, as in Colon-Ortiz, the effect of the sentencing decision in the present case was to assure that Castiello was occasioned no harm as a result of the notice deficiency complained of on appeal.13

The district court judgment is affirmed.