USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1858
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT HAHN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Paul J. Haley, with whom Scott L. Hood and Law Office of Paul J.
_____________ ______________ _____________________
Haley were on brief for appellant.
_____
David A. Vicinanzo, Assistant United States Attorney, with whom
__________________
Peter E. Papps, United States Attorney, was on brief for appellee.
______________
____________________
March 9, 1994
____________________
CYR, Circuit Judge. Appellant Robert Hahn challenges
CYR, Circuit Judge.
______________
various trial court rulings and the sufficiency of the evidence
supporting his convictions for using or carrying a firearm in
relation to a drug trafficking crime, 18 U.S.C. 924(c), con-
spiring to possess and distribute marijuana, 21 U.S.C. 846, and
conducting a continuing criminal enterprise, 21 U.S.C. 848(a),
(c). Careful review discloses no error.
I
I
BACKGROUND
BACKGROUND
__________
We recite the relevant facts in the light most favor-
able to the verdict. See United States v. Welch, ___ F.3d ___,
___ _____________ _____
___, No. 92-1368 (1st Cir. Dec. 30, 1993, slip op. at 19). In
1992, Hahn and ten other defendants were jointly indicted in the
United States District Court for the District of New Hampshire,
as former members of a nationwide marijuana trafficking conspira-
cy spanning more than a decade and headed by one Alberto "Dad"
Lujan. As a principal underboss, Hahn had been responsible for,
inter alia, transporting smuggled Mexican marijuana from Arizona
_____ ____
for distribution in California, Colorado, Michigan, New Hamp-
shire, Massachusetts and New York, among other locales.
In the early 1980s, Hahn and Lujan were local marijuana
dealers seeking to penetrate marijuana markets outside Arizona in
order to capitalize on their connections with suppliers in
Mexico. Eventually, Hahn established a business relationship
2
with Mark Heino, a New Hampshire native living in southern
California. Some of the marijuana Heino bought from Hahn, he
resold in California. The rest Heino distributed during his
frequent trips to New Hampshire. Heino himself became an under-
boss in the Lujan organization, a position he retained until his
arrest on trafficking charges in early 1984.
With Heino out of circulation, the New Hampshire
operation was taken over by Hugh Mulligan, another New Hampshire
native. Like Heino, Mulligan had been recruited into the Lujan
organization by Hahn, who thereafter supervised Mulligan's New
Hampshire operation. Later, when the New Hampshire marijuana
market softened, Mulligan introduced Hahn to Dennis and P.J.
Dougherty, Long Island residents with New Hampshire ties. The
Doughertys afforded the Lujan organization access to the lucra-
tive Metropolitan New York marijuana market, and large marijuana
shipments were soon being trucked in from Arizona. Several years
later, after the Doughertys dropped out of the picture, Hahn
established a high-volume marijuana trade with another New York
dealer. Meantime, Heino was released from prison in mid-1986,
returned to New Hampshire, and reestablished himself in the Lujan
organization. During this period, Hahn concentrated on the
organization's interests in Arizona, Metropolitan New York, and
New Hampshire.
3
Hahn's primary role was to supervise marijuana ship-
ments from Arizona to New York and New England.1 In early 1991,
Lujan set up a bogus produce-trucking operation as a cover for
the marijuana shipments. A professional truck driver, one Roger
Bradley, was recruited for the long-haul runs between Arizona and
the Northeast. Upon arrival at his East Coast destination,
Bradley would contact Hahn to arrange for offloading. Normally,
Bradley would "deadhead" back to Arizona, but on occasion he
transported large quantities of currency back to Lujan at Hahn's
request.2
The cross-country trucking operation was a success. At
its apex, during 1991 alone, thirteen to fifteen tractor-trailer
loads were transported from Arizona to the Northeast under Hahn's
____________________
1Hahn's secondary role was to ensure the security of the
organization's marijuana supply in Arizona. Several witnesses
testified that Hahn almost always carried a .45 caliber Colt
Commander handgun. Coconspirator Michael Sheehan testified that
Hahn admitted conducting raids, or "rips," on rival traffickers
and stealing their marijuana, thereby impeding the competition.
Hahn told Sheehan that he had been wounded by gunfire during a
"rip" in Tucson on December 8, 1989. At trial, a police officer
testified to having found Hahn in the aftermath of the December 8
shootout, and the government introduced photographs depicting the
shootout scene, strewn with bullets and bales of marijuana.
2The cross-country transportation operation required manpow-
er. The principal truck driver was Bradley, but on at least one
occasion coconspirators Michael Sheehan and Jeff Heino, Mark
Heino's brother, were brought to Arizona by Hahn to help with
the driving. Hahn also recruited his stepson, Craig Nezat, and
Nezat's cousin, Robert Mercado, to come to New York to assist
with offloading. And, finally, Hahn often used either Jeff
Heino, Sheehan, or Ken White, as a helper to drive and assist
in offloading the marijuana. Although Mulligan took a back seat
to Mark Heino after the latter was released from prison, on at
least one occasion Hahn used Mulligan as a courier for transport-
ing the organization's currency from New York to Arizona.
4
supervision, approximating 5,000 pounds apiece. The criminal
conspiracy unravelled shortly thereafter, however. During 1992,
Hahn's performance faltered, due apparently to his cocaine habit,
and he was cashiered by Lujan. Heino was unable to reestablish a
supply line between Arizona and New Hampshire. Finally, Hahn was
arrested in Arizona on November 12, 1992.3
II
II
DISCUSSION
DISCUSSION
__________
A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
___________________________
1. Standard of Review
1. Standard of Review
__________________
The challenges Hahn asserts to the sufficiency of the
evidence and to the denial of his motions for judgments of
acquittal "raise a single issue." United States v. Batista-
______________ ________
Polanco, 927 F.2d 14, 17 (1st Cir. 1991), quoted in United States
_______ _________ _____________
v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993); see also Welch,
________ ___ ____ _____
___ F.3d at ___ [slip op. at 19]. The verdicts are reviewed
under well-recognized standards:
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. We do not weigh
witness credibility, but resolve all credi-
bility issues in favor of the verdict. The
evidence may be entirely circumstantial, and
need not exclude every reasonable hypothesis
of innocence; that is, the factfinder may
____________________
3Hahn's ten codefendants entered into plea agreements with
the government.
5
decide among reasonable interpretations of
the evidence.
Batista-Polanco, 927 F.2d at 17 (citations omitted).
_______________
2. Continuing Criminal Enterprise
2. Continuing Criminal Enterprise
______________________________
A conviction under 21 U.S.C. 848 for engaging in a
continuing criminal enterprise ("CCE") requires proof beyond a
reasonable doubt that the defendant (1) committed a felony drug
offense, (2) as part of a continuing series of such violations,
(3) in concert with five or more persons in relation to whom he
acted as a supervisor, organizer, or manager, (4) and from which
multiple operations he realized substantial income or other
resources. See, e.g., United States v. Rouleau, 894 F.2d 13, 14
___ ____ _____________ _______
(1st Cir. 1990). Hahn claims that the government established
neither the third nor the fourth element of the CCE offense.
Under the familiar construction accorded the third CCE
element, the jury need only have found that the predicate crime
was committed in concert with at least five different individuals
in relation to whom the defendant served as an organizer, super-
visor, or in any other management position. See 21 U.S.C.
___
843(c)(2)(A); see also United States v. David, 940 F.2d 722, 730-
___ ____ _____________ _____
32 (1st Cir. 1991), cert. denied sub nom., Toro Aristizabal v.
____ ______ ___ ____ _________________
United States, 112 S. Ct. 605 (1991), and cert. denied sub nom.,
_____________ ___ _____ ______ ___ ____
Yarden v. United States, 112 S. Ct. 908 (1992), and cert. denied
______ _____________ ___ _____ ______
sub nom., Toro Aristizabal v. United States, 112 S. Ct. 1298
___ ____ _________________ _____________
(1992), and cert. denied, 112 S. Ct. 2301 (1992); United States
___ _____ ______ _____________
6
v. Jenkins, 904 F.2d 549, 553 (10th Cir.), cert. denied, 115 S.
_______ ____ ______
Ct. 395 (1990).4
The record abounds with evidence that Hahn performed a
supervisory role in the Lujan organization which required manage-
ment of more than five other individuals. First, Hahn concedes
that he supervised Craig Nezat and Robert Mercado. Further,
there is uncontroverted evidence that he exercised virtually
exclusive managerial control of marijuana transportation between
Arizona and the Northeast, which means that truck drivers Roger
Bradley, Michael Sheehan and Jeff Heino were under Hahn's control
and supervision from time to time as well. Although these five
subordinates were enough to establish the third CCE element, Ken
White and Hugh Mulligan were managed by Hahn as well. See supra
___ _____
at pp. 3-4.5
____________________
4As the Tenth Circuit explained in Jenkins:
_______
[The CCE statute's] use of the indefinite
article when describing 'a position of organ-
'a
izer' or 'a supervisory position or any other
'a any other
position of management' contemplates that a
given network may have many persons in au-
thority. Thus, the defendant need not be the
dominant organizer or manager of the enter-
prise; he need only occupy some managerial
some
position with respect to five or more per-
sons.
Jenkins, 904 F.2d at 553 (emphasis in original).
_______
5It is therefore unnecessary to address Hahn's argument that
he did not control the New Hampshire branch of the Lujan organi-
zation. "[S]o long as the record supports a finding that any
___
five people were under [the defendant's] control, our task is
complete and the status of the other individuals is immaterial."
David, 940 F.2d at 731 (emphasis in original).
_____
7
Hahn's challenge to the sufficiency of the evidence on
the fourth CCE element is unavailing as well. The "substantial
income" requirement may be met either by direct evidence of the
revenues realized and resources accumulated by the defendant, or
by such circumstantial evidence as the defendant's position in
the criminal organization and the volume of drugs handled by the
organization. United States v. Roman, 870 F.2d 65, 75 (2d Cir.),
_____________ _____
cert. denied, 490 U.S. 1109 (1989); United States v. Sisca, 503
____ ______ _____________ _____
F.2d 1337, 1346 (2d Cir.), cert. denied, 419 U.S. 1008 (1974).
_____ ______
The "substantial income" test establishes no fixed minimum, but
is intended "to exclude trivial amounts derived from occasional
drug sales," Roman, 870 F.2d at 75; see also United States v.
_____ ___ ____ _____________
Medina, 940 F.2d 1247, 1251 (9th Cir. 1991) ("The practical
______
meaning of 'substantial income or resources' will normally be a
question for the trier of fact").
There is overwhelming circumstantial evidence that Hahn
derived "substantial income" from the management services ren-
dered to the Lujan organization. The government need only prove
revenue, not profit. See, e.g., Roman, 870 F.2d at 75. The
___ ____ _____
sheer scope of the conspiracy, which generated millions of
dollars from many tons of marijuana over several years, provided
ample basis for a reasonable inference that Hahn realized far
more than trivial amounts of income from the organization. See
___
id. For example, the trial testimony indicated that Bradley
___
alone transported approximately 50,000 pounds of marijuana from
Arizona to the Northeast and over $1 million in cash from New
8
York to Arizona at Hahn's direction on one occasion alone.
Coconspirator Ken White testified that he purchased tens of
thousands of dollars worth of automobiles and handguns at Hahn's
request. And coconspirator Jeff Heino testified that Hahn typi-
cally spent $1,500 to $2,000 per day while Heino was working with
him in the field on organization business. The fourth CCE
element was established beyond a reasonable doubt.6
3. Conspiracy to Possess and Distribute Marijuana
3. Conspiracy to Possess and Distribute Marijuana
______________________________________________
Next, appellant challenges the sufficiency of the
evidence supporting his conviction for conspiring to distribute
marijuana, see 21 U.S.C. 846, which requires proof beyond a
___
reasonable doubt that "(1) a conspiracy existed, (2) . . . the
defendant knew of it, and (3) . . . he voluntarily participated
in it." David, 904 F.2d at 735. "A criminal conspiracy is a
_____
tacit or explicit agreement to perform an unlawful act or omit
one the law requires." United States v. Penagaricano-Soler, 911
_____________ __________________
F.2d 833, 840 (1st Cir. 1990), citing Iannelli v. United States,
______ ________ _____________
420 U.S. 770, 777 (1975). The illicit agreement may be estab-
lished by direct and circumstantial evidence. Batista-Polanco,
_______________
927 F.2d at 19.
Hahn's claim that the government failed to establish an
agreement among him and his confederates is frivolous. The
____________________
6Although Hahn's father testified that throughout the period
in question his son lived in a trailer behind the family home and
was "constantly asking for money," we may not presume the jury
incapable of circumspection. See Batista-Polanco, 927 F.2d at
___ _______________
17.
9
evidence undergirding the CCE conviction alone, see supra at pp.
___ _____
6-8, was sufficient to support a jury finding that Hahn conspired
with at least seven other persons to distribute marijuana.
Beyond that, however, Hahn concedes that he was a "middleman"
between "Dad" Lujan and Mark Heino. Finally, the evidence was
not nearly so limited, but demonstrated beyond a reasonable doubt
that Hahn was a key conspirator in a large-scale marijuana
conspiracy involving many other people.
4. Firearms Conviction
4. Firearms Conviction
___________________
Hahn contends that the government did not establish
that he "used or carried" a firearm during and in relation to a
drug trafficking crime as required by 21 U.S.C. 924(c). This
claim too is without merit. Hahn concedes that "many witnesses
testified at trial regarding the fact that the defendant oc-
casionally carried a weapon."7 Since we will not second-guess
credibility determinations by the jury, id. at 17, that testimony
___
was sufficient evidence in itself since these weapon-carrying
incidents involved activities in direct furtherance of the
conspiracy. See supra notes 1 & 7.
___ _____
____________________
7We mention but a few examples. First, coconspirator Craig
Nezat testified that Hahn carried a gun during their marijuana-
related business trips to New York. Second, coconspirator Ken
White testified that he bought more than one dozen guns for Hahn,
and that Hahn almost always carried a gun. Finally, when Hahn
was found at the December 8, 1989 shoot-out scene, he lay only
inches from a .45 Colt Commander, his signature handgun. See
___
supra at note 1.
_____
10
B. Motions for Mistrial
B. Motions for Mistrial
____________________
Hahn charges error in the denial of his motions for
mistrial based on the government's failure to establish that his
involvement in the "rip" shootout in Tucson was in furtherance of
the conspiracy. A mistrial need not be allowed absent a clear
showing of prejudice. United States v. Sclamo, 578 F.2d 888, 891
_____________ ______
(1st Cir. 1978); United States v. Pappas, 611 F.2d 399, 406 (1st
______________ ______
Cir. 1979). We review the mistrial ruling for "abuse of discre-
tion." United States v. Dockray, 943 F.2d 152, 157 (1st Cir.
_____________ _______
1991).
After the government's opening statement, the defense
moved for a mistrial based on the prosecutor's reference to the
Tucson "rip." See supra note 1. The government represented at
___ _____
sidebar that it would link the Tucson "rip" with the larger
conspiracy through the testimony of coconspirator Michael Shee-
han. The court accordingly denied the motion for mistrial,
without prejudice to its renewal. Sheehan later testified that
Hahn had admitted that he conducted the Tucson "rip" to "knock
out the competition." Further, Sheehan testified that Hahn
conducted at least one other such raid while Sheehan was in
Arizona.
At the close of the government's case, the court ruled
the Tucson "rip" evidence admissible as an overt act in further-
ance of the conspiracy. Hahn presents no argumentation even
remotely suggestive of an abuse of discretion, merely reiterating
the unsupported conclusion that the Tucson "rip" was part of a
11
separate conspiracy. The government correctly responds that the
jury reasonably could have found otherwise; that is, by intimi-
dating the competition, and stealing their marijuana, Hahn
furthered the interests of the Lujan organization.
12
C. Evidentiary Rulings
C. Evidentiary Rulings
___________________
Hahn filed a pretrial motion in limine to preclude, as
__ ______
irrelevant or unduly prejudicial: (1) testimony of an Arizona
state trooper who had made a routine stop of a vehicle being
driven by Hahn; and (2) testimony of another officer who searched
a different vehicle (subsequently linked with Hahn), and the
physical evidence recovered in the ensuing inventory search.
1. Arizona Traffic Stop
1. Arizona Traffic Stop
____________________
Arizona State Trooper Carlos Contreras testified that
he encountered Hahn in February of 1992 when he stopped a black
Ford pickup truck with New Hampshire license plates because it
lacked mud flaps. The driver, Hahn, was in lawful possession of
a .45 caliber Colt Commander. The government argued that the
traffic-stop evidence was highly probative of the scope of the
alleged conspiracy and Hahn's role in it, and that it corroborat-
ed important testimony provided by other prosecution witnesses.8
Hahn argues that the traffic-stop and handgun evidence
should not have survived the gauntlet for "other acts" evidence
established under Federal Rules of Evidence 403 and 404(b).
First, the past incident must have some rele-
vance other than to show the defendant's
propensity to commit the crime. United States
_____________
____________________
8First, it established that Hahn was driving a New Hampshire
vehicle in Arizona. Second, the black Ford pickup registration
was in Hahn's name, and indicated a dwelling owned by coconspira-
tor Mark Heino as Hahn's New Hampshire address. Third, Ken White
had testified to buying a black Ford pickup at Hahn's request.
Fourth, the Colt Commander .45 bore the same serial number
appearing on the bill of sale for a handgun Ken White had pur-
chased at Hahn's request.
13
v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.
___________
1990). Second, even if specially relevant,
the danger of prejudice cannot substantially
outweigh the probative value of the evidence.
Id. at 138; Fed. R. Evid. 403.
___
United States v. Agudelo, 988 F.2d 285, 287 (1st Cir. 1993); See
_____________ _______ ___
United States v. Williams, 985 F.2d 634, 637 (1st Cir. 1993)
______________ ________
(similar).
The district court first conducted an in camera con-
__ ______
ference with counsel to delimit Trooper Contreras's testimony,
heard the testimony, then found that the testimony forged a
relevant link among various regional elements in the Lujan
organization. Then, with defense counsel's imprimatur, a firm
jury instruction was given to the effect, inter alia, that it was
_____ ____
lawful for Hahn to possess the handgun.9
The court correctly ruled that the challenged "other
acts" evidence was not precluded under Rule 404(b)'s absolute
bar, which "excludes evidence . . . relevant only because it
____
shows bad character," United States v. Ferrer-Cruz, 899 F.2d 135,
_____________ ___________
137 (1st Cir. 1990) (emphasis in original); see Williams, 985
___ ________
____________________
9Immediately after Trooper Contreras's direct examination,
the district court instructed the jury as follows:
Ladies and Gentleman of the jury, you have
heard testimony from this witness about Mr.
Hahn's possession of a firearm in Arizona.
The witness has already testified that it was
entirely lawful for Mr. Hahn to possess that
firearm and the witness's statement is cor-
rect and you are to understand from me as my
instruction on the law that it was entirely
lawful for Mr. Hahn to possess that firearm
and you're not to draw any inference against
Mr. Hahn because he was in possession of that
firearm as testified to by this witness.
14
F.2d at 637; all evidence derived from the traffic stop, includ-
ing the handgun, clearly bore direct relevance to legitimate
issues, see note 7 supra. Furthermore, possession of a licensed
___ _____
firearm is neither a bad act nor indicative of bad character.
Under the required Rule 403 balancing, see id., the
___ ___
"other acts" evidence itself posed scant risk of engendering any
______
improper inference of predisposition to possess or use a firearm
unlawfully, as distinguished from lawful access to a particular
__________ ______
firearm, a piece of evidence highly relevant to Hahn's involve-
ment and role in the alleged conspiracy and CCE. Whatever
"prejudice" resulted by reason of the fact that Hahn was being
tried, inter alia, on a weapons charge, was not only mitigated by
_____ ____
the limiting instruction, see Huddleston v. United States, 485
___ __________ ______________
U.S. 681, 691-92, citing United States v. Ingraham, 832 F.2d 229,
______ _____________ ________
235 (1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988), but did
_____ ______
not derive unfairly from the challenged evidence itself. We
discern no unfair prejudice and no abuse of discretion.
2. The Lincoln Mark VII
2. The Lincoln Mark VII
____________________
Hahn attempted to preclude evidence seized from a
Lincoln Mark VII abandoned near an airport in Islip, New York.
An inventory search yielded, inter alia, a .45 caliber Derringer
_____ ____
handgun, several Colt .45 caliber ammunition clips, and various
travel documents in Hahn's name. Coconspirator Ken White had
testified to purchasing an identical Lincoln Mark VII at Hahn's
behest, and several witnesses testified that the Lincoln was used
by Hahn in his New York City area activities in behalf of the
15
Lujan organization. The Derringer bore a serial number matching
that on the bill of sale White received when he purchased it, as
he did other handguns, at Hahn's request. Finally, among the
travel documents found in the Lincoln was the receipt for a
round-trip airline ticket issued in Hahn's name for travel
between Tucson and Islip.
Hahn argues that this evidence should have been exclud-
ed under Rule 403 because its prejudicial effect outweighed its
probative value. The difficulty with Hahn's claim is that he
"has not shown that the probative value of the 'other act'
evidence was substantially outweighed by its unfair prejudice."
______
United States v. Carty, 993 F.2d 1005, 1011 (1st Cir. 1993)
______________ _____
(emphasis in original); see United States v. Rodriguez-Estrada,
___ ______________ _________________
877 F.2d 153, 156 (1st Cir. 1989) ("all evidence is meant to be
prejudicial; it is only unfair prejudice which must be avoided").
Although evidence of handgun possession may indeed invite an
inference that the defendant used the gun, the entirely legiti-
____
mate predicate inference for so concluding is that prior posses-
_________
sion makes it "more probable" that the defendant used a handgun
____
than would be the case if there were no such evidence. See Fed.
___
R. Evid. 401. Thus, no unfair inference of character-based
predisposition was necessary to constitute the seized handgun and
ammunition probative evidence on several important factual
issues, including Hahn's activities in the New York area. As no
cautionary instruction was requested, we discern no abuse of
discretion.
16
17
D. Impeachment Evidence
D. Impeachment Evidence
____________________
After trial, Hahn's attorney became aware of a plea
agreement and a police report relating to government witness
Roger Bradley which had not been provided to the defense.
Claiming that these documents would have been useful for impeach-
ment purposes, Hahn moved for a new trial. The district court
denied the motion.
"[T]he district court's determination on the materiali-
ty of newly discovered evidence in prosecutorial nondisclosure
cases is ordinarily accorded deference." United States v.
______________
Sanchez, 917 F.2d 607, 618 (1st Cir. 1990) (citations omitted),
_______
cert. denied, 499 U.S. 977 (1991). A new trial is in order only
_____ ______
if Hahn can demonstrate a reasonable probability that the result
would have been different had the defense provided the undis-
closed evidence before trial. See Barrett v. United States, 965
___ _______ _____________
F.2d 1184, 1189 (1st Cir. 1992); Sanchez, 917 F.2d at 617.
_______
The district court ruled that no such showing had been
made by Hahn because: (1) defense counsel had been provided with
a plea agreement between Bradley and the United States Attorney
for the District of New Hampshire, and had been made aware of the
existence of the Arizona plea agreement even though the document
itself was not provided; (2) Hahn's counsel made good use of
these plea agreements at trial and, indeed, Bradley admitted on
cross-examination that he was hoping for a lighter sentence in
exchange for his testimony; and (3) the Arizona police report was
cumulative, as it contained information previously provided to
18
the defense in other documents, and had been effectively used in
cross-examination. Careful review leaves no doubt that these
findings were well founded, in law and fact. "'Impeachment evi-
dence, 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.'" Id. at 618-19 (quoting United
___ _______ ______
States v. Shelton, 588 F.2d 1242, 1248 (9th Cir. 1978), cert.
______ _______ _____
denied, 442 U.S. 909 (1979)).
______
E. Sentencing
E. Sentencing
__________
The district court imposed two concurrent life terms
for the CCE and conspiracy count convictions, as well as a
mandatory, consecutive five-year term for the firearms offense
under 18 U.S.C. 924(c); a $25,000 fine; costs of confinement;
and five years' supervised release.10 In accordance with 18
____________________
10These sentences were imposed pursuant to the November 1,
1992, version of the Sentencing Guidelines. See U.S.S.G. 1B1.1
___
(1992). The 924(c) conviction triggered a mandatory consecu-
tive five-year sentence. See id. 2K2.4. The CCE and conspira-
___ ___
cy counts were grouped pursuant to U.S.S.G. 2D1.5, comment.
(n.4). See id. 3D1.3.
___ ___
On the conspiracy conviction, the court conservatively
calculated the drug quantity at 10,000 to 30,000 kilograms of
marijuana, see id. 2D1.1(c)(4), for a base offense level
___ ___
("BOL") of 36, augmented by a two-level enhancement for possess-
ing a firearm, see id. 2K2.4, comment. (n.2), and a four-level
___ ___
enhancement for Hahn's leadership role, see id. 3B1.1(a), for
___ ___
an adjusted base offense level ("ABOL") of 42.
On the CCE count, the ABOL was 42 as well, see id. 2D1.5,
___ ___
and Hahn's category I criminal history status resulted in a
guideline sentencing range of 360 months to life. See id. 5A
___ ___
(sentencing table).
19
U.S.C. 3553(c)(1), the district court entered the following
statement of reasons for sentencing Hahn at the upper limit of
the guideline sentencing range ("GSR"):
1. Hahn was a career criminal who had
"devoted his entire life to the business
of trafficking in illegal drugs."
2. Hahn used weapons, violence, and intimi-
dation as a day-to-day part of his busi-
ness operation.
3. Estimated conservatively, the quantity
of marijuana attributable to Hahn was
well in excess of the 10,000 kilograms
necessary to qualify for the offense
level found applicable in the pre-sen-
tence report.
4. Hahn managed and corrupted considerably
more than five people over the course of
the conspiracy.
The only challenge to these findings is directed at the amount of
marijuana for which Hahn was held responsible.
The "drug quantity" determination must be based on a
preponderance of the evidence, U.S.S.G. 1B1.3, and we review
only for clear error. United States v. Tracy, 989 F.2d 1279,
______________ _____
1287 (1st Cir.), cert. denied, 113 S. Ct. 2393 (1993). The
_____ ______
presentence report recommended that 64,200 pounds of marijuana
(approximately 29,000 kilograms) be attributed to Hahn, based in
part on the trial testimony of several witnesses who recounted
particular transactions during the decade-long period from 1980
to early 1991, augmented by an estimate of the amount transported
by Roger Bradley in thirteen tractor-trailer loads during 1991
alone. The court conservatively estimated the total amount at
49,700 pounds for sentencing purposes.
20
Hahn's challenge is based exclusively on a credibility
attack against Bradley's trial testimony. But see United States
___ ___ _____________
v. Sepulveda, ___ F.3d ___, ___ (1st Cir. 1993) [Slip op. at 72
_________
(December 20, 1993)] (where testimony provides competent basis
for estimating drug quantity, we need go no further, id. at ___
___
[slip op. at 77]). Not only are the district court findings
fully supported, but Hahn does not allege that he was responsible
for less than the 10,000 kilograms of marijuana required to
trigger BOL 36. See note 10 supra. Thus, any alleged discrepan-
___ _____
cy in weight would be immaterial for guideline sentencing purpos-
es.
Affirmed.
Affirmed.
________
21
