
USCA1 Opinion

	




          April 16, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 91-1890                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MICHAEL BARNETT,                                Defendant, Appellant.                                _____________________        No. 91-1891                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BARRY JORDAN,                                Defendant, Appellant,                                _____________________        No. 92-1778                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BARRY JORDAN,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion  of this Court  issued March 29,  1993, is  amended as        follows:            Page 22, line  two of text after block  quote, should read:  . . .        476 U.S. 1115 (1986) . . . .         April 7, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1890                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MICHAEL BARNETT,                                Defendant, Appellant.                                _____________________        No. 91-1891                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BARRY JORDAN,                                Defendant, Appellant,                                _____________________        No. 92-1778                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BARRY JORDAN,                                Defendant, Appellant.                                 ____________________                                          3                                     ERRATA SHEET            The  opinion of  this Court issued  March 29, 1993,  is amended as        follows:            Page 28, last line of  text, should read:  . . . since there  were        none.        March 29, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1890                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MICHAEL BARNETT,                                Defendant, Appellant.                                _____________________        No. 91-1891                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BARRY JORDAN,                                Defendant, Appellant,                                _____________________        No. 92-1778                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BARRY JORDAN,                                Defendant, Appellant.                                 ____________________                                          5                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Cyr and Boudin, Circuit Judges.                                            ______________                                 ____________________            Gayle C.  Wintjen with whom McGuinness  & Parlagreco  was on brief            _________________           ________________________        for appellant Michael Barnett.            George F. Gormley for appellant Barry Jordan.            _________________            Joseph M.  Walker III, Assistant United States Attorney, with whom            _____________________        A. John Pappalardo, United States Attorney, was on brief for appellee.        __________________                                 ____________________                                    March 29, 1993                                 ____________________            CYR, Circuit Judge.  Appellants  Michael Barnett and  Barry Jordan            CYR, Circuit Judge.                 _____________        were charged, in a three-count indictment, with conspiracy to manufac-        ture and  possess with intent to distribute  methamphetamine in viola-        tion of 21 U.S.C.   846, possession with intent to distribute  metham-        phetamine in violation of 21 U.S.C.    841(a) (1), and possession of a        listed  chemical in violation  of 21 U.S.C.    841(d)(1).  Barnett was        convicted on all three  counts at trial; Jordan pleaded  guilty to all        three  counts shortly  after  the commencement  of  trial.   Each  was        sentenced  to a thirty-year prison term  and a ten-year term of super-        vised  release.  On appeal,  Barnett raises several  challenges to his        conviction, and  joins Jordan in contesting  the drug-quantity finding        made by the district court at sentencing.  We affirm.                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________            In March  1990, the United  States Drug Enforcement Agency ("DEA")        began investigating a suspected conspiracy to manufacture and distrib-        ute methamphetamine.  Surveillance was initiated at three sites in the        Scituate,  Massachusetts area:   the residences of  each appellant and        the residence of their codefendant, Timothy Fitzgerald.1              Approximately a  year before  the investigation  began, a  trailer        storage  company had  delivered a  forty-foot trailer  to Fitzgerald's                                    ____________________             1Fitzgerald was acquitted at trial.                                          3        residence  in  Scituate.   The employee  who  made the  delivery later        testified that the  recipient of the  trailer, known to him  as "Tim,"        instructed that the trailer be placed as far back as possible into the        woods  located on  the  property.    Barnett subsequently  rented  the        trailer from Fitzgerald.            In  early May, 1990,  undercover DEA  Agent John  Kelly offered to        sell  Jordan hydriodic  acid ostensibly  stolen by  Kelly.2   At their        meeting, Jordan  explained that his "chemist"  had enough pseudoephed-        rine to produce forty  pounds (eighteen kilograms) of methamphetamine,        but  needed  twenty  pints of  hydriodic  acid  for the  manufacturing        process.   During their  tape-recorded conversation, Jordan  agreed to        buy twenty  pints of hydriodic  acid, and  to provide Kelly  with four        ounces of methamphetamine  in return.   Jordan assured  Kelly that  he        would  receive four  "uncut" ounces,  and suggested  that Kelly  could        double the volume by  diluting the pure methamphetamine with  an equal        amount of "cut," then  sell the resulting  eight ounces for $2,000  an        ounce.            Jordan  described  the methamphetamine  manufacturing  process  to        Kelly, explaining  that it  took seven  to  eight days,  and that  his        chemist  produced ten  pounds of  methamphetamine in  each batch.   To        allay  Kelly's concern  about the  danger of  a laboratory  explosion,                                    ____________________             2Hydriodic acid,  a listed chemical, is  essential to methamphet-        amine production  using the "ephedrine reduction  process," which also        requires either ephedrine or  pseudoephedrine; red phosphorus may also        be used as  a purifying agent.   To convert  the methamphetamine  into        powder for  distribution,  it is  dissolved  into freon  liquid,  then        bubbled in hydrogen chloride gas.                                          4        Jordan explained  that his chemist had  been manufacturing methamphet-        amine for ten years, and volunteered that he had assisted  the chemist        in preparing eight to ten batches one summer.3            As promised, on May 16, 1990,  Kelly delivered two boxes  contain-        ing  twenty half-liter  bottles (approximately  twenty pints)  of hyd-        riodic  acid to  Jordan.   A different  DEA agent  followed  Jordan to        Barnett's residence,  where he  observed Jordan and  Barnett unloading        two boxes from the trunk of Jordan's car.            The  DEA  conducted a  series  of  aerial  surveillance  fly-overs        during  May 1990.  A fly-over of  the Fitzgerald residence on or about        May 27 revealed an electrical  power cord running from the  main house        to the trailer.   (The  ephedrine reduction process  requires a  power        source to heat the chemicals.)            Two subsequent  fly-overs of  the Fitzgerald  residence were  con-        ducted  using  an infrared  heat-detecting  device  which operates  in        either of two  polarity modes:  "white-hot" or  "black-hot."  When the        device is in the white-hot mode, objects emitting heat appear white on        an  attached  screen; in  the  black-hot  mode, heat-emitting  objects        appear black.  The  device detected no heat emission  from the trailer        during a  fly-over on May 28.   On May 30,  Massachusetts State Police                                    ____________________             3After pleading guilty during  trial, Jordan submitted an affida-        vit  in which he insisted  that these statements  were mere "puffing,"        intended to  convince Kelly that he  was willing and able  to complete        their transaction.   The affidavit  attests that  Jordan knew  nothing        about  the manufacture of methamphetamine,  and that his  only role in        the  enterprise was to obtain  hydriodic acid in  exchange for a small        amount of money to support his heroin habit.                                          5        Trooper Richard Welby, who  had relatively little experience  with the        infrared equipment,  conducted another  fly-over.  Welby,  erroneously        believing  the device  was in  the white-hot  mode, observed  that the        trailer  appeared white  on  the screen,  and  concluded that  it  was        emitting heat.  Subsequent analysis revealed, however, that the device        actually was in the black-hot mode during the May 30 fly-over, and the        infrared images, properly interpreted,  indicated that the trailer was        emitting no detectible heat.            On the afternoon  of May 30, a DEA  agent followed Barnett to  the        Fitzgerald property.  When Barnett disappeared  down the driveway, the        agent  left his  vehicle and  surreptitiously followed  on foot.   The        agent spotted the  trailer and saw Barnett inside.   The agent noticed        several  blue buckets, a white radiator, and  two boxes in the rear of        the trailer.   As the agent watched, Barnett scraped the bottom of one        of the blue buckets for approximately five minutes, then poured liquid        into the bucket.  Barnett left the trailer and entered the main house,        returning  with several paper towels with which he filtered the yellow        slushy contents of the bucket, then poured the filtered substance into        a  gray painter's tray.  Barnett made  another trip to the main house,        this time  returning with clear plastic  sandwich bags.  He  picked up        the gray painter's tray, rocked it back and forth  several times, then        poured the yellow slushy substance into one of the bags, double-bagged        it, and returned once again to the main house.            The DEA agent returned  to his vehicle, and  waited for Barnett to        drive  away.   After  about  twenty-five  minutes,  Barnett  left  the                                          6        Fitzgerald  property and drove to  a shopping center,  unaware that he        was  being followed  by the  agent.   When the  agent pulled  into the        shopping  center parking lot, he  noticed a second  individual in Bar-        nett's  vehicle.  The agent identified the second individual as appel-        lant Jordan.            On May 30, DEA Agent Lemon  compiled the information obtained from        the  various surveillance  operations  (including the  erroneous heat-        imaging  data interpretation) in an affidavit, which he attached to an        application  for a  warrant to  search the  trailer on  the Fitzgerald        property,  the  Fitzgerald  and  Jordan residences,  and  a  residence        believed to be occupied by Barnett.            The  investigation culminated  early  the next  morning  when  the        search warrants were executed.  First, agents searched the  Fitzgerald        trailer,  unveiling a  partially  assembled laboratory  containing  an        array  of chemicals,  including  hydriodic acid,  acetone, freon,  and        hydrogen chloride gas,  and an assortment of equipment associated with        methamphetamine  production,  including  a radiator,  a  fan,  flasks,        tubes, and a heater-timer.   Three ounces of methamphetamine  crystals        and  a bucket  containing approximately  one pound  of methamphetamine        crystals  in two and one-half pounds of an acetone/freon solution were        also discovered.  Subsequent  analysis determined that the methamphet-        amine found in the bucket was between 90 and 100 percent pure.            DEA  agents arrested  Jordan and  Fitzgerald at  their  respective        residences.   At Jordan's residence, agents seized a small quantity of        a mixture containing heroin  and methamphetamine, as well as  a valium                                          7        tablet,  several hypodermic needles, and several publications describ-        ing  the  methamphetamine  manufacturing  process.    At  Fitzgerald's        residence, agents found a piece of paper listing the chemical ingredi-        ents needed  to produce methamphetamine using  the ephedrine reduction        process ("the Fitzgerald chemical list").            Barnett no  longer resided at the  residence for  which the fourth        search warrant had been obtained.  When DEA agents arrested Barnett at        his new residence, he was  advised of his Miranda rights and  that the                                                  _______        laboratory  had been  discovered at  the Fitzgerald property.   Agents        searched  Barnett's new  residence,4  and discovered  a warehouse  re-        ceipt.   In response to a question from Agent Lemon about the receipt,        Barnett  revealed that the remaining equipment and chemicals were in a        storage bin at the warehouse.  A warrant was secured and the search of        the storage bin uncovered approximately fifteen pounds of red phospho-        rous,  a  seventy-pound drum  containing  an  unspecified quantity  of        hydriodic acid, a fifty-kilogram container of pseudoephedrine slightly        less than half full, and  various other chemicals, glassware,  cooking        devices, protective gear and gloves.            At  DEA headquarters,  after  determining that  Barnett  had  been        advised  of his  Miranda rights,  DEA agent  Boeri engaged  Barnett in                         _______        conversation  about the  methamphetamine  operation.   In response  to        Boeri's questions,  Barnett admitted that he was  the "chemist," indi-        cated that he  had experienced no difficulty  obtaining chemicals, and                                    ____________________             4Barnett contests the district  court ruling that the warrantless        search was consensual.  See infra at pt. II.B.1.                                ___ _____                                          8        explained that his methamphetamine  was "ninety nine and  one percent"        pure  as a  consequence  of the  two  "extra" manufacturing  steps  he        performed.            Five  days into their  joint trial,  Jordan pleaded  guilty to all        counts.    Thereafter,  the  jury  convicted  Barnett,  and  acquitted        Fitzgerald, on all counts.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________        A.  Sentencing Issues        A.  Sentencing Issues            _________________            Barnett and Jordan challenge  the sentencing court's determination        that  each was responsible  for twenty-nine kilograms  of pure metham-        phetamine.   Jordan alone contests the court's drug purity ruling.  We        review for  clear error,  see 18  U.S.C.    3742(e); United  States v.                                  ___                        ______________        Panet-Collazo, 960 F.2d 256,  262 (1st Cir.), cert. denied,     U.S.          _____________                                 _____ ______  ___      _        ,  113 S. Ct. 220  (1992); United States v.  Weston, 960 F.2d 212, 220                                   _____________     ______        (1st  Cir. 1992), with a view to  whether the factual findings made by        the sentencing court were supported by a preponderance of the reliable        information.  See, e.g., United States v. Rodriguez-Cardona,  924 F.2d                      ___  ____  _____________    _________________        1148, 1155 (1st  Cir.), cert. denied,       U.S.     ,  112 S. Ct.  54                                _____ ______   ____      ____        (1991); United States  v. Zuleta-Alvarez,  922 F.2d 33,  37 (1st  Cir.                _____________     ______________        1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2039 (1991).               _____ ______            1.Drug Quantity            1.Drug Quantity              _____________            The  district court adopted the drug-quantity findings  set out in                                          9        the presentence reports  ("PSRs").5   Each PSR  provided, in  relevant        part:            In  this offense, the defendant secured a 50 kilogram drum of            pseudoephedrine which would make 29 kilograms of pure metham-            phetamine.   There was  every indication  that  they had  the            materials to produce  this full  amount.  As  such, the  Drug            Quantity Table  under [s]ubsection (c), offenses involving at            least 10 kilograms but less than 30 kilograms of pure metham-            phetamine provides for a base offense level of 40.        Appellants insist that the court  overestimated the capacity of  their        drug manufacturing operation and that their sentences should have been        based exclusively on the quantity of methamphetamine seized.            The sentencing guidelines direct that  a defendant who is convict-        ed  of  conspiring or  attempting to  commit  any offense  involving a        controlled substance shall be assigned the same base offense level "as        if  the object  of  the conspiracy  or  attempt had  been  completed."        U.S.S.G.    2D1.4.   Further  guidance is  provided in  an application        note:            Where there is no drug seizure  or the amount seized does not                                            __ ___ ______ ______ ____ ___            reflect the  scale of the offense, the sentencing judge shall            _______ ___  _____ __ ___ _______            approximate  the quantity  of the  controlled substance.   In            making his  determination, the judge may  consider, for exam-            ple,  the price  generally obtained  for the  controlled sub-            stance,  financial or other  records, similar transactions in            controlled  substances  by the  defendant,  and  the size  or                                                             ___ ____  __                                    ____________________             5Appellants mistakenly  suggest that  the court made  no specific        finding as  to the quantity  of drugs for  which they were  being held        responsible.  The court checked the  box on the "Statement of Reasons"        form  attached  to the  judgment relating  to each  defendant, thereby        clearly indicating  that "[t]he  court adopt[ed] the  factual findings        and  guideline application in  the presentence report."   We therefore        reject their Rule 32(c)(3)(D) claim.                                          10            capability of any laboratory involved.            __________ __ ___ __________ ________        U.S.S.G.   2D1.4, comment. (n.2) (1991) (emphasis added).            Three ounces of methamphetamine crystals, and a bucket  containing        an additional  pound of methamphetamine  crystals in two  and one-half        pounds  of  liquid, were  seized.   Nevertheless,  the  district court        reasonably concluded  that the quantity of  methamphetamine seized did        not accurately reflect the  scale of the offense, see  id., especially                                                          ___  ___        in  view of  Jordan's admissions  that his  "chemist" had at  hand the        ingredients with which to produce forty pounds of methamphetamine, and        in view of the  equipment found in  the trailer and storage  facility,        and the  sizable quantities  of precursor  chemicals seized.   Accord-        ingly,  under the sentencing guidelines the district court did not err        in estimating the drug quantity.            The  court based  its drug-quantity  calculation on the  amount of        methamphetamine  producible with  fifty kilograms  of pseudoephedrine.        Barnett and  Jordan object to  this calculation because  it disregards        the  undisputed  fact  that  the fifty-kilogram  drum  contained  only        twenty-three kilograms of  pseudoephedrine when it was  seized.  More-        over, Jordan insists that the court's approximation of the quantity of        methamphetamine was flawed because other essential precursor chemicals        were not  seized  in the  quantities required  to produce  twenty-nine        kilograms of methamphetamine, in particular hydriodic acid.            In approximating  the producible quantity of controlled substance,        the  sentencing court may  consider the amount  of precursor chemicals                                          11        possessed.  See, e.g., United States  v. Beshore, 961 F.2d 1380, 1383-                    ___  ____  _____________     _______        84 (8th Cir.), cert. denied,     U.S.     , 113 S. Ct. 241 (1992), and                       _____ ______  ___       ___        cert. denied,      U.S.     , 113 S. Ct. 243  (1992); United States v.        _____ ______  ____      ____                          _____________        Short, 947 F.2d 1445, 1456-58 (10th Cir. 1991), cert. denied, ___ U.S.        _____                                           _____ ______        ___, 112 S. Ct. 1680  (1992); United States v. Aichele, 941  F.2d 761,                                      _____________    _______        766 (9th Cir.  1991); United  States v. Macklin,  927 F.2d 1272,  1281                              ______________    _______        (2nd Cir.), cert. denied, ___ U.S. ___, 112 S. Ct.  146 (1991); United                    _____ ______                                        ______        States  v. Kingston,  922 F.2d  1234, 1236-38  (6th Cir.  1990), cert.        ______     ________                                              _____        denied,  ___ U.S.  ___,  111  S. Ct.  2054  (1991);  United States  v.        ______                                               _____________        Smallwood, 920 F.2d 1231,  1236-38 (5th Cir.), cert. denied,  ___ U.S.        _________                                      _____ ______        ___, 111 S. Ct. 2870 (1991).  Although the sentencing court must "'err        on the side of caution'" in selecting from among plausible alternative        drug-quantity  estimates, United  States v. Sklar,  920 F.2d  107, 113                                  ______________    _____        (1st Cir. 1990)  (quoting United States v. Walton, 908 F.2d 1289, 1301                                  _____________    ______        (6th  Cir.), cert.  denied, __  U.S. __,  111 S.  Ct. 273  (1990)), we                     _____  ______        cannot  conclude that its approximation  is constrained by the precur-        sor-chemical quantities actually seized, see Beshore, 961 F.2d at 1383                                                 ___ _______        (approximation of drug quantity "does not require that every precursor        chemical be present").  Rather, U.S.S.G.    2D1.4 expressly authorizes        consideration of the size or capability of any laboratory.  See United                             ____ __ __________ __ ___ __________   ___ ______        States v.  Havens, 910 F.2d  703, 705 (10th Cir.  1990), cert. denied,        ______     ______                                        _____ ______        ___ U.S. ___, 111 S.  Ct. 687 (1991) (explaining that  a drug-quantity        estimate "should  be equal to the  amount of drugs produceable  if the        precursor  chemicals possessed  by  the defendant  were combined  with        proportionate amounts of the  missing ingredients including processing                                          12        equipment"); see also  United States  v. Bertrand, 926  F.2d 838,  846                     ___ ____  _____________     ________        (9th Cir. 1991) (finding no clear error in drug-quantity approximation        based  on capacity  of  methamphetamine lab,  notwithstanding lack  of        hydriodic acid); Smallwood, 920  F.2d at 1237 (upholding drug-quantity                         _________        finding notwithstanding absence  of precursor  chemicals); cf.  United                                                                   ___  ______        States  v. Gerante,  891  F.2d 364,  368-70  (1st Cir.  1989)  (basing        ______     _______        approximation of  drug quantity on discovery  at defendant's residence        of $68,000 believed to be proceeds from recent drug sale).   As we see        it,  the quantity  of essential  precursor chemicals seized,  like the        capacity  of the laboratory and  the evidence relating  to the overall        scheme, see Smallwood, 920 F.2d  at 1237-38, is but one  among several                ___ _________        circumstantial factors appropriately  considered in approximating drug        quantities for sentencing purposes.            We must  determine  whether  the government  presented  sufficient        reliable  information to permit the court  reasonably to conclude that        appellants were responsible for a quantity of drugs at least equal  to        the  quantity  threshold for  the assigned  base  offense level.   See                                                                           ___        Sklar, 920 F.2d  at 113.  The base offense  level assigned each appel-        _____        lant  was 40, the level  applicable to offenses  involving between ten        and  thirty kilograms of unadulterated methamphetamine.  A DEA chemist        testified at trial that fifty kilograms of pseudoephedrine would yield        twenty-nine kilograms  of methamphetamine.6  Utilizing  the same ratio                                    ____________________             6Jordan points  out  that the  court did  not state  that it  was        relying on the DEA chemist's testimony, that the drug quantity approx-        imation in the PSR is  not attributed to the chemist, and  that Jordan        had  no opportunity to cross-examine  the chemist, who testified after                                          13           one  unit of pseudoephedrine per  a .58 unit of  methamphetamine           the  twenty-three kilograms  of pseudoephedrine  seized in  the fifty-        kilogram drum would yield  approximately thirteen kilograms of metham-        phetamine,  a quantity sufficient to warrant the base offense level of        40.              The DEA  chemist further  testified that  the ephedrine  reduction        process requires hydriodic acid  in quantities from one to  four times        the amount of pseudoephedrine, depending upon the particular "recipe."        Although the evidence does not establish the exact amount of hydriodic        acid the  defendants possessed, approximately ten  liters were seized,        along  with an unspecified quantity found in a seventy-pound container        at  the warehouse.  In addition, an empty seventy-pound hydriodic acid        container was found at the trailer.            Furthermore,  Jordan admitted  to  Agent  Kelly that  he  and  the        "chemist" had all the necessary ingredients, with the exception of the        hydriodic acid being  procured from Kelly,  with which to  manufacture        forty pounds (eighteen kilograms) of methamphetamine immediately.  The        court also  had before  it the  Fitzgerald  chemical list,  reflecting        chemical quantities  sufficient to produce at  least twenty-nine kilo-                                    ____________________        Jordan had entered his guilty plea.             "A sentencing hearing need not meet all the procedural  safeguards        and strict  evidentiary  limitations of  a criminal  trial."   Zuleta-                                                                       _______        Alvarez,  922 F.2d at 36.  The  sentencing court may rely on extrinsic        _______        evidence which  was not  subjected to  cross-examination,  so long  as        there are "'sufficient indicia of  reliability to support its probable        accuracy.'"   Id. at 36 (quoting U.S.S.G.    6A1.3).  Jordan failed to                      __        present any evidence at sentencing to refute the drug-quantity approx-        imation  in the  PSR.   We discern  no clear  error in  the sentencing        court's reliance on the DEA chemist's trial testimony.                                          14        grams of methamphetamine.  Some quantity  of each chemical on the list        was seized  either from the trailer  or the warehouse and  in the size        container specified on the  list.7  Appellants' PSRs also  contain the        uncontroverted  statements that  Barnett produced  approximately eight        pounds of methamphetamine in December 1989 and that Jordan participat-        ed in  its distribution.   Neither appellant  presented countervailing        drug-quantity or chemical-quantity evidence at sentencing.              We discern  no clear  error.   The  district court  had before  it        sufficient reliable  information to support a finding that Barnett and        Jordan  were actually responsible for  not less than  ten kilograms of                                               ___ ____        methamphetamine, warranting a base offense level of 40.              2.  Drug Purity            2.  Drug Purity                ___________            An explanatory note  appended to the  Drug Quantity  Table distin-                                    ____________________             7The Fitzgerald chemical list reads as follows:            d-pseudoephedrine Hcl.            50 kilo drum            Hydriodic Acid            4 - 70 lb drum            Red Phosphorus            15 lb            R-IIFreon            7 - 100 lb drums            Methyl Alchohol [sic]            (methanol)            5 - 5 gal drums            Acetone            7 - 5 gal drums        Among the seized chemicals were a partially filled fifty-kilogram drum        of pseudoephedrine,  one empty and one  partially filled seventy-pound        hydriodic acid  drum, several one-pound  bottles of red  phosphorus, a        100-pound drum  of freon, several five-gallon  containers of methanol,        and two five-gallon acetone containers.                                          15        guishes  between  the terms  "methamphetamine  (actual)" and  "metham-        phetamine":            Unless otherwise  specified, the weight of  a controlled sub-            stance set forth in the table  refers to the entire weight of            any mixture  or substance  containing a detectable  amount of            the controlled substance . . . .  The term[] . . . "[m]etham-            phetamine (actual)" refer[s] to  the weight of the controlled            substance, itself, contained in the mixture or substance.        U.S.S.G.    2D1.1(c).  The table prescribes a base offense level of 40        for offenses  involving between ten  and thirty kilograms  of "metham-        phetamine (actual)," whereas the same quantity of adulterated "metham-        phetamine"  carries a base  offense level of  36.  Now,  for the first        time, Jordan argues  that the record does not  establish the purity of        the  methamphetamine for which he  was held responsible,  and that his        base offense level should  have been computed under the  Drug Quantity        Table entry for adulterated "methamphetamine" rather than "methamphet-        amine (actual)."              Issues  not squarely  raised in  the  district  court will  not be        entertained on appeal.  See United  States v. Haggert, 980 F.2d 8, 10-                                ___ ______________    _______        11  (1st  Cir. 1992)  (collecting  cases).   Although  defense counsel        consistently  referred  to   base  offense  levels   corresponding  to        adulterated "methamphetamine" rather than  "methamphetamine (actual),"        both at  sentencing and in  opposition to the PSR,  at no time  did he        expressly  raise  drug  purity as  an  issue  in  the district  court.        "Judges  are not expected to be mindreaders.  Consequently, a litigant        has  an obligation to spell out [his] arguments squarely and distinct-        ly, or  else forever hold [his] peace."  United States v. Zannino, 895                                                 _____________    _______                                          16        F.2d  1, 17 (1st Cir.)  (internal citations and  quotation marks omit-        ted), cert. denied, 494 U.S. 1082 (1990).  The drug-purity  claim must              _____ ______        be deemed waived, as it was never raised below.8        B.  Suppression Issues        B.  Suppression Issues            __________________            1.  The Consensual Search            1.  The Consensual Search                _____________________            Barnett  filed a  pretrial  motion to  suppress  certain  physical        evidence and admissions,  on the  ground that he  did not  voluntarily        consent  to the  warrantless search  of his  residence.   The district        court disagreed.  We review for clear error.  United States v. Wilkin-                                                      _____________    _______        son, 926 F.2d 22, 24 (1st Cir.),  cert. denied, ___, U.S. ___, 111  S.        ___                               _____ ______        Ct. 2813 (1991); United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir.                         _____________    ______        1989), cert. denied, 496  U.S. 908 (1990).  A  warrantless residential               _____ ______        search violates the Fourth Amendment unless it comes within one of the        "'few  specifically  established  and well-delineated  exceptions[,]'"                                    ____________________             8The  raise-or-waive rule  will  be relaxed  only in  exceptional        cases involving a gross miscarriage of justice where the belated claim        is  "'so  compelling as  virtually  to  insure appellant's  success.'"        Johnston v.  Holiday Inns,  Inc., 595  F.2d 890,  894 (1st  Cir. 1979)        ________     ___________________        (quoting  Dobb v. Baker,  505 F.2d  1041, 1044  (1st Cir.  1974)); see                  ____    _____                                            ___        United States  v. Slade, 980 F.2d 27, 31 (1st Cir. 1992); Haggert, 980        _____________     _____                                   _______        F.2d at 10-11; Hernandez-Hernandez v. United States, 904 F.2d 758, 763                       ___________________    _____________        (1st Cir. 1990).  This narrow  exception is unavailing in the  present        case.             The  sentencing court  had before  it evidence  that  Barnett per-        formed extra manufacturing steps to assure maximum purity, that Jordan        promised  to  deliver "uncut"  methamphetamine  to  Agent Kelly,  that        Barnett  boasted  to Agent  Boeri  that his  methamphetamine  had been        analyzed "ninety-nine  and one  hundred percent"  pure,  and that  the        methamphetamine  seized at  the  trailer was  between  ninety and  one        hundred percent pure.   Absent any  evidence that the  methamphetamine        was diluted or  adulterated in  any manner, the  sentencing court  was        presented with insufficient evidence to sustain Jordan's present drug-        purity claim.                                          17        Schneckloth v. Bustamonte, 412  U.S. 218, 219 (1973) (quoting  Katz v.        ___________    __________                                      ____        United States,  389 U.S.  347, 357 (1967)),  which include  consensual        _____________        searches, id. at  219, 228.  The voluntariness of  a consent to search                  ___        turns on an assessment  of the totality of the circumstances.   United                                                                        ______        States  v. Mendenhall, 446 U.S. 544, 557 (1980); Schneckloth, 412 U.S.        ______     __________                            ___________        at 227.  Among the individualized factors bearing on the vulnerability        of the consenting party  are age, education, experience, intelligence,        and  knowledge of the right to withhold consent.  More general consid-        erations  include whether the consenting  party was advised  of his or        her constitutional rights  and whether  permission to  search was  ob-        tained by  coercive means or under  inherently coercive circumstances.        Id.  at 226;  Twomey, 884  F.2d at  51.   Although sensitivity  to the        ___           ______        heightened possibility  of coercion is appropriate  when a defendant's        consent  is obtained during custody, see Schneckloth, 412 U.S. at 240,                                             ___ ___________        n.29,  "custody alone has never  been enough in  itself to demonstrate        . . . coerced . . . consent to search."  United States  v. Watson, 423                                                 _____________     ______        U.S. 411, 424 (1976).            Barnett argues  that his consent  was coerced, in that  he was met        at the  door of his home  by seven or eight  law enforcement officers,        with  guns drawn.  Immediately  after he was  arrested and handcuffed,        the  officers  holstered their  weapons  and  advised Barnett  of  his        Miranda  rights.   Barnett was  then asked  if he  would consent  to a        _______                                          18        search of  the premises.9  Barnett  claims that he was  never informed        that he  could withhold his consent, he was given no consent form, and        he was led  to believe that the officers already  had a search warrant        because they  began searching the premises  immediately upon entering,        prior to requesting consent.            Written consent is not essential to  the establishment of a  valid        consensual search.  See, e.g., United States v. Chaidez, 906 F.2d 377,                            ___  ____  _____________    _______        382 (8th Cir. 1990) (search may be justified by voluntary oral consent        even  in the  absence  of valid  written  consent); United  States  v.                                                            ______________        Castillo,  866 F.2d 1071, 1082 (9th Cir. 1988) (defendant's refusal to        ________        sign a consent  form does  not preclude a  finding of  voluntariness).        Moreover,  it  is not  essential that  the  officers first  inform the        consenting party of the right to withhold consent, though knowledge of        the right  to withhold consent is a factor to be considered in assess-        ing voluntariness, Schneckloth, 412  U.S. at 227; see also  Florida v.                           ___________                    ___ ____  _______        Rodriguez, 469 U.S. 1, 6-7 (1984).        _________            Although Barnett testified  that agents began "searching,  looking        under  things," and  "opening drawers  and cabinets,"  Lemon testified                                    ____________________             9Barnett testified  that, following  his arrest, he  was told  by        Agent Lemon:   "Mike, we  are just going to  look around and  take you        down  to  the Marshfield  Police  Station,  okay?"   Barnett  replied,        "Okay."   Barnett contends that he was merely acknowledging his arrest        and inevitable booking, not  consenting to a search of  his residence.        Based  on  Agent  Lemon's testimony,  however,  the  court  found that        Barnett was  asked:  "Mind if I look around the house?" and responded,        "Go ahead.  You'd probably get a search warrant anyway."  The district        court was presented with a pure credibility determination.  We find no        clear  error in its determination  that Lemon's version  of the events        was more credible.                                          19        that a protective  sweep was conducted  immediately upon entering  the               __________  _____        premises to ensure that no one else was present.10 Thereafter,     ac-        cording  to Lemon,  the  agents "just  [stood]  around" until  Barnett        consented  to a further search.   We find no clear  error in the trial        court's credibility-based ruling that "a sweep search was conducted."            Barnett's contention  that the  search conducted immediately  upon        entry led him to believe that the agents already had  a search warrant        cannot  succeed in any event.  The district court expressly found that        Barnett responded as follows to Lemon's request for consent to search:        "Go  ahead.  You'd probably  get a search  warrant anyway[]" (emphasis                                           ______  _______ ______        added), plainly  implying Barnett's understanding that  the agents had        no search warrant and needed his consent.            Notwithstanding the  inherently unnerving effect  of having numer-        ous  officers arrive  at one's  door with  guns drawn, Barnett  was no        "newcomer"  to  law-enforcement  encounters.   See  United  States  v.                                                       ___  ______________        Kimball, 741 F.2d 471, 474 (1st Cir. 1984).  Barnett had been convict-        _______        ed of  at least eighteen prior offenses and arrested on at least eight        previous  occasions.  Thus,  we may fairly  presume that  he was "less        likely  than most  to be  intimidated by the  agents' show  of force."        United States v.  Cepulonis, 530 F.2d 238, 244 (1st  Cir. 1976), cert.        _____________     _________                                      _____                                    ____________________             10A  sweep search  is  "narrowly  confined  to a  cursory  visual        inspection  of those places in which a  person might be hiding," Mary-                                                                         _____        land v. Buie, 494 U.S. 325, 327 (1990).  The officers are permitted to        ____    ____        take  reasonable  steps  to ensure  their  safety,  and may,  "without        probable  cause or  reasonable  suspicion, look  in closets  and other        spaces  immediately adjoining the place of arrest from which an attack        could be immediately launched."  Id.                                         ___                                          20        denied, 426  U.S. 908 (1976), and  cert. denied, 426 U.S.  922 (1976).        ______                             _____ ______        In addition,  before he was asked  to consent to the  search, all guns        had  been holstered  and Barnett  was advised  of his  Miranda rights,                                                               _______        "'put[ting] him on notice  that he [could] refuse to  cooperate,'" id.                                                                           ___        (quoting Gorman v. United States, 380 F.2d 158, 164 (1st Cir.  1967)).                 ______    _____________        Finally, there was no  evidence of overt or covert threats or pressure        to exact Barnett's consent.            In these  circumstances, we  conclude that Barnett's will  was not        overborne,  nor his  "capacity for  self-determination  critically im-        paired."  Schneckloth,  412 U.S. at  225.  Ultimately,  as we are  not                  ___________        "'left with the definite and  firm conviction that a mistake  has been        committed,'"  Anderson v.  Bessemer  City, 470  U.S.  564, 573  (1985)                      ________     ______________        (quoting United States v. United States Gypsum Co., 333 U.S.  364, 395                 _____________    ________________________        (1948)), we find  no clear  error in the  trial court's  determination        that Barnett's consent was voluntary.             2.  The Lemon Affidavit            2.  The Lemon Affidavit                ___________________            Next, Barnett claims that the district  court erred in refusing to        suppress  evidence obtained as a result of alleged false statements in        the  affidavit supporting  the  search warrant  application.   Barnett        contends that  the  erroneous  heat-imaging test  data  in  the  Lemon        affidavit was materially false or included with reckless disregard for        its truth.  Without it, says Barnett, the Lemon affidavit was insuffi-        cient to establish probable cause to search the trailer.            The district  court conducted an  evidentiary hearing pursuant  to                                          21        Franks v. Delaware, 438 U.S. 154 (1978).  Franks findings are reviewed        ______    ________                        ______        for clear error.  United States  v. Cole, 807 F.2d 262, 268 (1st  Cir.                          ______ ______     ____        1986), cert. denied,  481 U.S. 1069 (1987).  The  questions for us are               _____ ______        (1)  whether Barnett established by a preponderance of the evidence at        the Franks hearing that the affidavit was perjurious, or prepared with            ______        reckless  disregard for  its  truth, and  (2)  whether the  affidavit,                                             ___        without  the false  material, was  insufficient to  establish probable        cause  for the search.  If so, the  warrant was void and the fruits of        the search must be suppressed.  Franks, 438 U.S. at 155-56.                                          ______            Barnett claims that  the heat-imaging data Trooper Welby  provided        to Lemon,  see supra at pp. 5-6, was either deliberately or recklessly                   ___ _____        false,  because Welby failed to  inform Lemon that  he lacked training        and  experience  in operating  the device  and  failed to  examine the        device prior to  the May 30 flyover  to determine which  polarity mode        was operative.            The district  court finding that  Welby did  not act in  bad faith        was not clearly erroneous.  There is no evidence that Welby intention-        ally misinterpreted the data from the infrared equipment.  Rather, the        evidence  strongly  suggests,  just as  the  court  found, that  Welby        sincerely believed, albeit  mistakenly, that the equipment was  in the        "white-hot" polarity mode during the fly-over.            Neither  is there evidence  that Lemon  knew that the heat-imaging        data was incorrect.  Nevertheless, Barnett argues that Lemon's failure        to make note, in the affidavit, that Welby had little  experience with        the heat-imaging equipment was  a material omission made intentionally                                          22        or with reckless disregard for the truth.  Although the district court        made no direct finding on this issue, we need not pursue the matter as        the affidavit would have been sufficient without the challenged data.            "[I]f an  affiant knowingly includes  a false statement  in a            warrant affidavit, the warrant  will stand if, 'when material            that is the subject of the alleged falsity or reckless disre-            gard  is set to one side, there remains sufficient content in            the  warrant  affidavit  to  support a  finding  of  probable            cause.'"        United States v. Veillette, 778 F.2d  899, 904 (1st Cir. 1985),  cert.        _____________    _________                                       _____        denied, 476 U.S. 1115 (1986) (quoting Franks, 438 U.S. at 171-72).        ______                                ______            The Fourth Amendment warrant requirement is met  if the magistrate        had a  "'substantial basis for . . . conclud[ing]' that a search would        uncover evidence of wrongdoing."  Illinois v. Gates, 462 U.S. 213, 236                                          ________    _____        (1983) (quoting Jones  v. United  States, 362 U.S.  257, 271  (1960)).                        _____     ______________        Without regard to the incorrect heat-imaging data, the Lemon affidavit        established probable cause  to search the trailer.11   The suppression                                    ____________________             11We  summarize some of the more salient information in the affi-        davit:            (1)  In March 1990, a  cooperating individual informed Lemon  that        Barry  Jordan and a man  known as "Barney"  were manufacturing metham-        phetamine in the South Shore area, possibly in Scituate.  According to        the informant, Jordan  and "Barney" manufactured ten pounds of metham-        phetamine in November or December of 1989.            (2)   Jordan told  DEA  undercover  agent Kelly  that he  and  his        chemist had 160 pounds of chemicals, and needed only hydriodic acid to        manufacture  forty  pounds of  methamphetamine.    Kelly supplied  the        hydriodic acid in  exchange for  Jordan's promise to  give Kelly  four        ounces of methamphetamine.            (3)  Clandestine  methamphetamine labs typically have air vents or        ducts  to dissipate toxic fumes; photographs of the trailer revealed a        "black  bordered area" which Lemon,  based on his experience, believed                                          23        ruling was not clearly erroneous.        C.  Severance        C.  Severance            _________            Next, Barnett claims that denial of his severance motion  violated        his  Sixth Amendment right to  confrontation, as a  consequence of the        prejudice occasioned by the admission in evidence, at the joint trial,        of codefendant  Fitzgerald's  post-arrest statements,  see  Bruton  v.                                                               ___  ______        United States, 391 U.S. 123 (1968), and that he was further prejudiced        _____________        by the testimony of Fitzgerald's spouse, Sheryl.              At trial, Agent Lemon testified as follows:            I  advised Mr. Fitzgerald  that we had  done a search  on the            trailer  in his backyard.   I advised Mr.  Fitzgerald that we            had found a  speed lab,  a methamphetamine lab.   I told  him            that  I believed another person  was the chemist,  and I also            told Mr. Fitzgerald  that I  believed he knew  who the  other            person was and that  this other person was a  chemist . . . .            He told me he knew who this other person was, but that he did            not know  that this  person was  involved with  a clandestine            laboratory.  He stated that he  knew him or this other person            socially and that he would go  out on occasion and have a few            drinks with  this other person. . . . Mr.  Fitzgerald told me            that he rented the trailer out to this other person and  that            it was  used for  construction. . . . Mr. Fitzgerald  told me            that  he . . .  did not  know what  was going  on out  in the                                    ____________________        to be  a trapdoor or venting area  for a clandestine laboratory inside        the trailer.            (4)  The  pattern of  electricity consumption suggested the  pres-        ence of  a clandestine lab.   The electricity bills showed  a dramatic        increase in December  1989, the  time period during  which Jordan  and        "Barney" manufactured ten pounds of methamphetamine.            (5)   During a DEA  flyover on  May 26,  1990, a  DEA agent  first        observed a  power cord running between the trailer and the main house.        During a May 28 flyover, two Massachusetts State Troopers observed the        same cord.            (6)   A DEA agent observed Barnett mixing and straining a "yellow,        slushy mixture" at the trailer on May 30.            (7)   The trailer  was located  in a  remote, wooded  location, an        ideal site for a clandestine laboratory.                                          24        Barnett  objected and moved to strike  on Bruton grounds.12  The court                                                  ______            trailer, and I then asked Mr. Fitzgerald how he could explain            what Mr.  Fitzgerald told me was that  he was in the trailer,            the  hydrio[d]ic acid label that  was found in  his coat, and            he saw the bottles  of hydrio[d]ic acid, and that  he removed            one of the labels because he wanted to find out what it was.        Lemon's testimony  relating his own extrajudicial  statements to Fitz-                                          25             13Although Barnett moved to  strike the "entire conversation," he        did so  on Bruton grounds  only.   No separate objection  was made  to                   ______        given.        against Fitzgerald.  No limiting instruction was requested, offered or        Fitzgerald about "the chemist," no Bruton problem was presented and no                                           ______        the Lemon testimony related the extrajudicial statements Lemon made to                                                                 _____            There  was no confrontation  clause violation.   First, insofar as             12At sidebar, the following exchange occurred:                                    ____________________        hearsay objection was made.13   Even Fitzgerald's extrajudicial state-                                             ____________        sustained the Barnett  objection, but allowed  the testimony to  stand            T     H     E                 C     O     U     R     T     :            MR. HORAN:I would still contend that all along [for Barnett]:            the statement was  sanitized so to speak, but the implication            MR. KENDALL:He  will.    What  the  Government  would  [AUSA]            is still clear by the Government that the person who is being        confessing  to anything" and was  a mere "fact  witness" is reversible            anything.  He's a fact witness.            T     H     E                 C     O     U     R     T     :            talked about here is Michael Barnett.            Let's  assume  it  is.    He  [Fitzgerald]  is  not  confessing to            nett, or, conversely, it is only to Fitzgerald.        Barnett  contends that  the court's comment  that Fitzgerald  "was not            agree to is the  statement will not be admitted  against Bar-            How is this based under the Bruton issue?                                        ______        error.  This argument is baseless.        ments to Lemon neither  identified nor inculpated Barnett,  but merely        related  factual observations  established by  other  independent evi-        dence.  Second,  assuming the jury did  deduce, as seems  likely, that        Lemon and  Fitzgerald were  referring to Barnett,  Fitzgerald's state-        ments nonetheless did not entail  the sort of "'powerfully incriminat-        ing' effect of one accomplice pointing the finger directly at another,        without subjecting  himself to  cross-examination."  United  States v.                                                             ______________        DiGregorio, 605 F.2d 1184, 1190 (1st Cir.), cert. denied, 444 U.S. 937        __________                                  ____  ______        (1979), and cert.  denied, 444 U.S. 944 (1979), and  cert. denied, 444                    ____   ______                            ____  ______        U.S. 983  (1979) (quoting Bruton, 391  U.S. at 135).   See also United                                  ______                       ___ ____ ______        States  v.  Greenleaf, 692  F.2d 182,  188-89  (1st Cir.  1982), cert.        ______      _________                                            ____        denied,  460  U.S. 1069  (1983)  (finding  no Bruton  violation  where        ______                                        ______        codefendant's statement  was  not "powerfully  incriminating.").   Not        only did  Fitzgerald not  confess guilt, he  in no manner  admitted to                                  _______        knowledge of Barnett's guilt.  Thus, Fitzgerald's admissions  to Lemon                     _________        inculpated neither Barnett nor Fitzgerald.14                                    ____________________        gerald in the guise of reciting Lemon's investigative efforts.             14Whatever prejudice might otherwise have resulted from the joint        trial  was minimized by precautions the district court took to forfend        against  it.   After  the pretrial  severance  motion was  denied, the        government  stipulated that any  testimony relating post-arrest state-        ments by  Fitzgerald would not refer  to Barnett by name  and the dis-        trict court  firmly admonished against  "any mention of  [Barnett]" in        connection with Fitzgerald's statements.            Barnett nevertheless  maintains that  the court  committed revers-        ible  error by failing to instruct the jury that Fitzgerald's extraju-        dicial  statements were  not admissible  against Barnett,  even though        Barnett did not request a limiting instruction, either  at the time of        the ruling or at the time of the final jury charge, and even though he        did not object to the charge.  The claim must be deemed waived, United                                                                        ______        States  v. Mateos-Sanchez, 864 F.2d  232, 238 (1st  Cir. 1988); United        ______     ______________                                       ______                                          26            Barnett  submits that  severance  was  warranted, nonetheless,  to        avoid the  cumulative prejudice from Fitzgerald's extrajudicial state-        ments  and  the  testimony  of Sheryl  Fitzgerald.15    The  severance        ruling  is reviewable for abuse  of discretion, reversible  only if it        "'deprived  defendant of a fair  trial, resulting in  a miscarriage of        justice.'"  United States v. Tejeda, 974 F.2d 210, 219 (1st Cir. 1992)                    _____________    ______        (quoting  United States  v.  McLaughlin, 957  F.2d  12, 18  (1st  Cir.                  _____________      __________        1992)); see  also United States  v. Martinez, 922  F.2d 914, 922  (1st                ___  ____ _____________     ________        Cir.  1991) (severance  is committed  to the  sound discretion  of the        trial  judge, reversible only on a  showing of manifest abuse).  While        incidental prejudice is sometimes unavoidable in a joint trial, only a                                    ____________________        States v. Rawwad, 807 F.2d 294, 296 (1st Cir. 1986), cert. denied, 482        ______    ______                                     ____  ______        U.S.  909 (1987),  especially since  it seems  highly likely  that the        trial court would have viewed it as a reasonable tactical decision for        defense counsel  to refrain  from requesting an  instruction recalling        the  jury's attention to Lemon's  testimony.  "We  have been extremely        reluctant  'to increase  the heavy  burdens  already imposed  on trial        judges  in criminal cases' by  mandating that the  district courts act        sua sponte  to override seemingly  plausible strategic choices  on the        ___ ______        part of counselled defendants."  United States v. De La Cruz, 902 F.2d                                         _____________    __________        121, 124 (1st Cir.  1990) (quoting United States v.  Reveron Martinez,                                           _____________     ________________        836  F.2d 684, 687  (1st Cir. 1988)).   Furthermore,  we are confident        that there  was no plain error.  The absence of a limiting instruction        did not "seriously affect the fundamental fairness and basic integrity        of the proceedings," United States v.  Griffin, 818 F.2d 97, 100  (1st                             _____________     _______        Cir.), cert. denied, 484 U.S. 844 (1987).               ____  ______             15Barnett identifies two aspects of Sheryl Fitzgerald's testimony        as  especially prejudicial:   (1) that Barnett  entered the Fitzgerald        house  several times  on May 30, leaving  with clear  plastic sandwich        bags in his possession  on one occasion; and  (2) that, after  Barnett        left on  the evening of  May 30, she  found a  piece of paper  bearing        handwriting different than her  husband's, and gave it to  her husband        to deliver to Barnett.  Barnett does not mention, in  this connection,        some  of Sheryl Fitzgerald's other testimony.  For example, she testi-        fied that she rented the trailer to Barnett.                                          27        strong   showing  of  substantial  prejudice  will  warrant  reversal.        McLaughlin, 957 F.2d at 18.        __________            The "heavy burden" of demonstrating the unfair prejudice  required        for reversal has not been met.  See United States v. Perkins, 926 F.2d                                        ___ _____________    _______        1271, 1280  (1st Cir. 1991).  First, the record does not disclose that        this  issue was  preserved at  trial, as  Barnett neither  objected to        Sheryl Fitzgerald's testimony, nor  requested a limiting or cautionary        instruction.   Second, Barnett  identifies no basis  for excluding her        testimony, either  at a joint  trial or a  separate trial.   Thus, al-        though her testimony  inculpated Barnett, there  was no unfair  preju-        dice.        D.  Criminal Rule 35        D.  Criminal Rule 35            ________________            Barnett  appeals  from the  dismissal  of  his  motion to  correct        sentence pursuant to  Fed. R. Crim. P. 35(a), which  sought a downward        departure due  to diminished  mental capacity.16   The district  court                                    ____________________             16Barnett  claims that  he suffers  from short-term  memory loss.        Mental and emotional conditions generally are not grounds for downward        departure.  U.S.S.G.   5H1.3.   See United States v. Lauzon,  938 F.2d                                        ___ _____________    ______        326, 333 (1st Cir.), cert. denied, ___ U.S. ___, 112  U.S. 450 (1991);                             ____  ______        United States v.  Studley, 907 F.2d 254, 257 (1st  Cir. 1990).  Never-        _____________     _______        theless, a guideline policy statement provides as follows:            If the  defendant committed a non-violent  offense while suf-            fering from significantly reduced mental capacity not result-            ing from voluntary use of drugs or other intoxicants, a lower            sentence may  be warranted  to reflect  the  extent to  which            reduced mental capacity contributed  to the commission of the            offense, provided that the defendant's criminal  history does            not indicate a need for incarceration to protect the public.        U.S.S.G.   5K2.13.                                          28        dismissed on the ground that it lacked the power to grant relief under        Rule 35(a).              Rule  35(a)17 expressly  empowers a  district court  to correct  a        sentence  only on remand from the court  of appeals.  United States v.                                                              _____________        Carr, 932 F.2d 67,  69 (1st Cir.), cert. denied, ___  U.S. ___, 112 S.        ____                               ____  ______        Ct. 112 (1991).   Rule  35(c), which permits  the sentencing court  to        correct  a sentence imposed as a result of arithmetical, technical, or        other  clear error, was not  in effect either  when the Barnett motion        was filed or  dismissed.  Moreover, in this case  we need not consider        whether the district court  had the inherent power to  correct obvious                                                                       _______        sentencing errors, see United  States v. Rico, 902 F.2d  1065, 1067-68        __________ ______  ___ ______________    ____        (2d Cir.), cert. denied, ___  U.S. ___, 111 S. Ct. 352  (1990); United                   _____ ______                                         ______        States  v. Cook, 890 F.2d 672, 674-75  (4th Cir. 1989); see also Carr,        ______     ____                                         ___ ____ ____        932 F.2d at 70-71, since there were  none.  As the sentence imposed on        Barnett  was in  no respect  unlawful or  unreasonable, the  motion to        reconsider was properly dismissed.                                    ____________________             17Federal Rule of Criminal Procedure 35(a) provides:            The  court shall  correct  a sentence  that is  determined on                                                                       __            appeal under 18 U.S.C. 3742 to have been imposed in violation            ______            of law, to  have been  imposed as  a result  of an  incorrect            application  of  the  sentencing  guidelines, or  to  be  un-            reasonable, upon remand of the case to the court                           ____ ______            (1)  for imposition of a sentence in accord with the findings            of the court of appeals; or            (2) for  further sentencing  proceedings if, after  such pro-            ceedings, the court determines that the original sentence was            incorrect.        Fed. R. Crim. P. 35(a) (emphasis added).                                          29        E.  Outrageous Government Conduct        E.  Outrageous Government Conduct            _____________________________            Barnett claims that the indictment  should have been  dismissed on        due process grounds,  since Agent  Kelly's sale of  hydriodic acid  to        Jordan  constituted outrageous  government conduct.   Law  enforcement        conduct violates the  Due Process Clause of the  Fifth Amendment if it        results in a denial of "'fundamental fairness, shocking to the univer-        sal  sense of justice.'"  United States  v. Russell, 411 U.S. 423, 432                                  _____________     _______        (1973)  (quoting Kinsella v. United States ex rel. Singleton, 361 U.S.                         ________    _______________________________        234, 246  (1960)).  See also  United States v. Panitz,  907 F.2d 1267,                            ___ ____  _____________    ______        1272  (1st Cir. 1990) ("The Supreme  Court has not foreclosed the pos-        sibility  that the  government's  active participation  in a  criminal        venture may  be of so  shocking a nature  as to violate  a defendant's        right  to due process,  notwithstanding the defendant's predisposition        to commit the crime").  We find no due process violation.            Because drug conspiracies are  notoriously difficult to penetrate,        courts  consistently have  allowed greater  government  involvement in        drug-crime investigations.  Panitz, 907 F.2d at 1273.  Law enforcement                                    ______        infiltration of drug rings,  and even limited investigative participa-        tion  in  their  unlawful  operations, do  not  constitute  outrageous        government conduct violative  of due  process.  Russell,  411 U.S.  at                                                        _______        432.            Although Agent Kelly sold Jordan a  precursor chemical which is an        integral  methamphetamine component,  the government  was  neither the        conspirators' sole source (hydriodic  acid obtained from other sources        was seized in the  warehouse search), nor did the  government initiate                                          30        the criminal conduct.   Jordan told Agent Kelly that  Barnett had been        producing methamphetamine for ten years.  Other evidence revealed that        Jordan and Barnett  had manufactured  eight to ten  pounds of  metham-        phetamine  in 1989.   The sale  of hydriodic  acid to  Jordan in these        circumstances was a permissible investigative effort to infiltrate the        suspected drug-related conspiracy.  The district court properly denied        the motion to dismiss on due process grounds.        F.  Cumulative Error        F.  Cumulative Error            ________________            Finally, as  most assignments  of error were  baseless, we  reject        Barnett's  contention that the cumulative effect of the many errors he        alleges required reversal on  due process grounds.  We are well satis-        fied that Barnett received due process:   "[T]he Constitution entitles        a criminal defendant to a fair trial, not a perfect one."  Delaware v.                                                                   ________        Van Arsdall, 475 U.S. 673, 681 (1986).          ___________            The sentence of appellant Jordan  and the conviction  and sentence            __________________________________________________________________        of appellant Barnett are affirmed.        _________________________________                                                   31
