United States v. Hahn ( 1994 )


Menu:
  • 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