United States v. Welch
Case Date: 12/20/1993
Court: United States Court of Appeals
Docket No: 92-1364
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________ Nos. 92-1362 92-1574 UNITED STATES OF AMERICA, Appellee, v. DAVID SEPULVEDA, Defendant, Appellant. _________________________ No. 92-1364 UNITED STATES OF AMERICA, Appellee, v. EDGAR SEPULVEDA, Defendant, Appellant. _________________________ No. 92-1366 UNITED STATES OF AMERICA, Appellee, v. EDWARD W. WELCH, JR., Defendant, Appellant. _________________________ No. 92-1367 UNITED STATES OF AMERICA, Appellee, v. ARLINE S. WELCH, Defendant, Appellant. _________________________ No. 92-1369 UNITED STATES OF AMERICA, Appellee, v. KEVIN CULLINANE, Defendant, Appellant. _________________________ No. 92-1371 UNITED STATES OF AMERICA, Appellee, v. CHERYL T. JOHNSON, Defendant, Appellant. _________________________ No. 92-1373 UNITED STATES OF AMERICA, Appellee, v. RICHARD F. LABRIE, Defendant, Appellant. _________________________ No. 92-1374 UNITED STATES OF AMERICA, Appellee, v. TONY ROOD, Defendant, Appellant. _________________________ No. 92-1375 UNITED STATES OF AMERICA, Appellee, v. WILLIAM D. WALLACE, Defendant, Appellant. _________________________ Nos. 92-1573 92-1629 UNITED STATES OF AMERICA, Appellee, v. ERNEST F. LANGLOIS, Defendant, Appellant. _________________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Shane Devine, U. S. District Judge] ____________________ _________________________ Before Selya, Cyr and Boudin, Circuit Judges. ______________ _________________________ David H. Bownes, with whom David H. Bownes, P.C. was on ________________ ______________________ brief, for defendant David Sepulveda. Julia M. Nye, with whom McKean, Mattson and Latici, P.A. was ____________ ________________________________ on brief, for defendant Edgar Sepulveda. Stephen A. Cherry, with whom Wright & Cherry was on brief, _________________ _______________ for defendant Edward W. Welch, Jr. Kevin M. Fitzgerald, with whom Peabody & Brown was on brief, ___________________ _______________ for defendant Arline S. Welch. Michael J. Ryan, with whom King and Ryan was on brief, for _______________ ______________ defendant Kevin Cullinane. Robert P. Woodward for defendant Cheryl T. Johnson. __________________ Mark H. Campbell for defendant Richard Labrie. ________________ Paul J. Garrity on brief for defendant Tony Rood. _______________ Matthew J. Lahey, with whom Murphy, McLaughlin, Hemeon & _________________ ______________________________ Lahey, P.A. was on brief, for defendant William D. Wallace. ___________ Julie L. Lesher, with whom Murphy, McLaughlin, Hemeon & ________________ ______________________________ Lahey, P.A. was on brief, for defendant Ernest F. Langlois. ___________ John P. Rab for defendant Christopher Driesse (appellant in ____________ consolidated appeal). Paul J. Haley, with whom Scott L. Hood was on brief, for ______________ ______________ defendant Shane Welch (appellant in consolidated appeal). Kevin M. Fitzgerald, Kevin M. Leach, McLane, Graf, Raulerson ___________________ ______________ _______________________ & Middleton, Peabody & Brown and David H. Bownes on omnibus ____________ ________________ ________________ briefs for all appellants. Terry L. Ollila, Special Assistant United States Attorney, ________________ with whom Peter E. Papps, United States Attorney, and Jeffrey S. ______________ __________ Cahill, Special Assistant United States Attorney, were on brief, ______ for appellee. _________________________ December 20, 1993 _________________________ SELYA, Circuit Judge. These appeals, arising out of SELYA, Circuit Judge. _____________ the drug-trafficking convictions of a dozen New Hampshire residents, suggest that while two New Hampshiremen might once have been a match for Satan, see Stephen Vincent Benet, The Devil ___ _________ and Daniel Webster (1937), times have changed. The tale follows. __________________ I. BACKGROUND I. BACKGROUND During a two-month trial in the district court, the government mined a golconda of evidence. Because it would serve no useful purpose to recount the occasionally ponderous record in book and verse, we offer instead an overview of the evidence, taken in the light most compatible with the guilty verdicts. See ___ United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. _____________ _____ _____ denied, 113 S. Ct. 1005 (1993). Further facts will be added as ______ we discuss specific issues. For almost six years, David Sepulveda conducted an increasingly sophisticated cocaine distribution business in and around Manchester, New Hampshire. Initially, Sepulveda purchased cocaine from a vendor in Nashua, New Hampshire, and transported it to Manchester himself. Over time, Sepulveda expanded his operation, increasing the volume of cocaine and engaging others to handle tasks such as pickup, delivery, and street-level sales. As his enterprise grew more ambitious, Sepulveda began purchasing cocaine from a source in Lawrence, Massachusetts. Faced with the need to retain control while insulating himself from the prying eyes of law enforcement personnel, Sepulveda's journeys to Lawrence became an elaborate ritual in which he would 4 scrupulously avoid carrying drugs or travelling in the same car with the cocaine that he purchased. On these provisioning trips, Sepulveda was usually accompanied by his brother, Edgar, and a "runner," that is, an individual who would actually transport the cocaine from Lawrence to Manchester.1 Frequently, one of Sepulveda's distributors or a user in a particular hurry to obtain fresh supplies would join the troupe. Once the cocaine arrived in Manchester, Sepulveda and his associates packaged it in street-level quantities and distributed it to a series of individuals for resale and personal use. The buyers included, among others, defendants Edward W. Welch, Jr., Arline S. Welch, Shane Welch, Kevin Cullinane, Christopher Driesse, Cheryl T. Johnson, Richard E. Labrie, Tony Rood, and William D. Wallace. David Sepulveda made a practice of directing persons who inquired about purchasing small amounts of cocaine to these same individuals. Eventually, David Sepulveda's reach exceeded his grasp. A federal grand jury indicted him, along with others, for drug trafficking; and, after trial, a petit jury convicted twelve persons, viz., the Sepulveda brothers, the three Welches, ____ Cullinane, Driesse, Johnson, Labrie, Rood, Wallace, and Langlois, on a charge of conspiracy to possess and distribute cocaine. See ___ 21 U.S.C. 846 (1988). The jury also convicted David Sepulveda on a charge of engaging in a continuing criminal enterprise. See ___ ____________________ 1At various times, defendants Tony Rood and Ernest F. Langlois worked as runners. At other times, Norberto Perez played this role. 5 21 U.S.C. 848 (1988). Twenty-six appeals ensued. It is no exaggeration to say that the defendants, represented by able counsel, managed to cultivate a profusion of variegated grounds for appeal from the peat of the protracted trial. Because of the sheer bulk and complexity of the proceedings, we issued a special briefing order and then heard oral argument on all twenty-six appeals. We decide today twelve appeals taken by ten defendants (collectively, "the appellants").2 After sifting what grains we can locate from the considerable chaff, we conclude that the appellants enjoyed a fair, substantially error-free trial, and that their convictions must stand. In two instances, however, we vacate particular sentences and remand for further proceedings. II. SUFFICIENCY OF THE EVIDENCE II. SUFFICIENCY OF THE EVIDENCE Four appellants claim that the evidence is insufficient, as a matter of law, to support their convictions.3 Because insufficiency claims are commonplace in criminal appeals, the standard of appellate oversight lends itself to rote ____________________ 2The appeals taken by defendants Christopher Driesse and Shane Welch following the trial present certain unique issues and those two appeals will be resolved in a separate opinion. In addition, after the original round of appeals had been docketed, all twelve defendants moved to vacate judgment on the basis of newly discovered evidence. The court below denied relief and a fresh battery of appeals ensued. Those twelve late-blooming appeals were argued in tandem with the fourteen earlier appeals and will be disposed of in a third opinion. 3We do not include under this rubric appellants Edgar Sepulveda and Tony Rood, both of whom argue that the government failed to present sufficient evidence to show their participation in the single "master conspiracy" charged in the indictment. Instead, we treat with those claims in Part IX, infra. _____ 6 recitation. Following a guilty verdict, a reviewing court must scrutinize the record, eschewing credibility judgments and drawing all reasonable inferences in favor of the verdict, to ascertain if a rational jury could have found that the government proved each element of the crime beyond a reasonable doubt. See ___ United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); _____________ _________ Ortiz, 966 F.2d at 711; United States v. David, 940 F.2d 722, 730 _____ _____________ _____ (1st Cir. 1991) (collecting cases), cert. denied, 112 S. Ct. 2301 _____ ______ (1992). To sustain a conviction, the court need not conclude that only a guilty verdict appropriately could be reached; it is enough that the finding of guilt draws its essence from a plausible reading of the record. See Echeverri, 982 F.2d at 677; ___ _________ Ortiz, 966 F.2d at 711. _____ Here, the challenged convictions center around a charge of conspiracy to possess and distribute cocaine. To prove a drug conspiracy charge under 21 U.S.C. 846, the government is obliged to show beyond a reasonable doubt that a conspiracy existed and that a particular defendant agreed to participate in it, intending to commit the underlying substantive offense (here, possession of cocaine with intent to distribute, 21 U.S.C. 841(a)(1)). See David, 940 F.2d at 735; United States v. ___ _____ ______________ Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denied, 111 S. _______ _____ ______ Ct. 1625 (1991); United States v. Rivera-Santiago, 872 F.2d 1073, _____________ _______________ 1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989). There are no _____ ______ particular formalities that attend this showing: the agreement may be express or tacit and may be proved by direct or 7 circumstantial evidence. See Echeverri, 982 F.2d at 679; Rivera- ___ _________ _______ Santiago, 872 F.2d at 1079. Moreover, in a criminal conspiracy, ________ culpability may be constant though responsibilities are divided; the government does not need to show as a precursor to a finding of guilt that a given defendant took part in all aspects of the conspiracy. See United States v. Benevides, 985 F.2d 629, 633 ___ _____________ _________ (1st Cir. 1993); United States v. Cruz, 981 F.2d 613, 617 (1st ______________ ____ Cir. 1992). Using these guideposts, we find that the quantum of evidence presented against each of the four challengers suffices. A. Arline Welch. A. Arline Welch. ____________ Four witnesses provided the bulk of the evidence regarding Arline Welch's role in the conspiracy. Kurt Coriaty testified that he had purchased cocaine from her both in her home and in his, particularly after her husband, Edward Welch, was imprisoned. Coriaty's partner, Kenneth Milne, stated that Arline Welch gave him cocaine at her home and was present when he purchased cocaine from Edward Welch at the Welch residence. While mere presence is not sufficient to ground criminal charges, a defendant's presence at the point of a drug sale, taken in the light of attendant circumstances, can constitute strong evidence of complicity. See Ortiz, 966 F.2d at 711-12. ___ _____ The jury also heard Norberto Perez explain that Arline Welch accompanied David Sepulveda on three buying expeditions to Lawrence, Massachusetts. Perez testified that, in expressing anxiety, she made manifest her awareness of the trips' purpose, voicing statements like: "Let's hurry up and get this cocaine so 8 we can get out of here." Furthermore, Randall Vetrone testified that Arline Welch was present in Edgar Sepulveda's apartment while the Sepulveda brothers packaged and sold cocaine. Appellant's consensual presence in a private home, not her own, while large quantities of drugs were being packaged for resale, possessed evidentiary significance. From this fact, coupled with other contextual detail (much of it inculpatory), the jury reasonably could have inferred that she was a member of the ring. See Ortiz, 966 F.2d at 712 (pointing out that criminals rarely ___ _____ seek to expose their felonious activities to innocent outsiders, where such exposure could easily be avoided); United States v. ______________ Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991) (to like _______________ effect). Keeping in mind the maxim that "criminal juries are not expected to ignore what is perfectly obvious," Echeverri, 982 _________ F.2d at 679, the testimony of these four witnesses and the reasonable inferences to be drawn therefrom formed a serviceable predicate upon which to rest a conviction for conspiracy to distribute cocaine.4 Accordingly, the district court did not err in denying Arline Welch's motion for judgment of acquittal. B. Kevin Cullinane. B. Kevin Cullinane. _______________ Daniel Santos, a quondam partner of Cullinane's in the ____________________ 4We give short shrift to Welch's argument, echoed at various times by other appellants, that, because some of the government's witnesses anticipated receiving reduced sentences in exchange for cooperation, their testimony should be regarded as inherently unreliable. When an appellate court reviews the sufficiency of the evidence, it must resolve routine credibility questions in favor of the verdict. See David, 940 F.2d at 730. ___ _____ 9 drug distribution trade, testified that Cullinane introduced him to David Sepulveda and that Sepulveda eventually became a principal supplier of cocaine to the Cullinane-Santos partnership. Santos also testified that Cullinane accompanied Sepulveda on provisioning trips, returning to Santos's apartment with fresh supplies of contraband. The ubiquitous Norberto Perez corroborated this relationship, testifying that he had travelled to Lawrence on at least five occasions in the company of Cullinane and the Sepulveda siblings in order to replenish cocaine stores. Perez also recreated a conversation that took place between Cullinane and Sepulveda involving the former's indebtedness to the latter for transactions in cocaine. The government adduced abundant evidence that Cullinane distributed much of the contraband he acquired. Perez and Santos both described Cullinane's activities as a vendor. John Rice testified that Cullinane delivered cocaine to defendant Christopher Driesse, and that Driesse, in turn, would resell the drugs. Santos confirmed that Cullinane procured these drugs from David Sepulveda and that Sepulveda extended credit to Cullinane. Another witness, David Chase, acknowledged that he had purchased up to eight kilograms of cocaine from Cullinane before concluding that, aphorisms about honor among thieves notwithstanding, Cullinane could not be trusted.5 In view of this plenitudinous testimony, the court ____________________ 5When Chase and Cullinane fell out, Chase took his business directly to David Sepulveda. 10 below appropriately derailed Cullinane's quest for acquittal as a matter of law. C. Ernest Langlois. C. Ernest Langlois. _______________ David Sepulveda hired Langlois to be both a drug courier and a torpedo. Langlois's resounding success in the latter role intimidating Sepulveda's debtors and, sometimes, his associates produced a suffusion of testimony limning Langlois's role in the organization. For instance, David Hill described four occasions on which Langlois used force, or threats of force, to collect debts owed to Sepulveda. Two other witnesses testified that Sepulveda boasted of employing Langlois as a strongarm to collect drug debts. Another witness overheard Langlois crowing about the nature of his employment. And no fewer than six witnesses relayed information from which a rational jury could infer that Langlois "rode shotgun" during drug-buying expeditions. As this partial summary indicates, the evidence accumulated against Langlois rose well above the level necessary to sustain the jury's verdict. D. Cheryl Johnson. D. Cheryl Johnson. ______________ Two witnesses, Santos and Kathy Malone (an undercover police officer), testified that David Sepulveda sent them to Cheryl Johnson when they wanted to buy cocaine. Santos said that he purchased cocaine from Johnson on approximately one hundred occasions, during which transactions Johnson offhandedly revealed 11 the full extent of her copious cocaine inventory. Malone stated that she purchased cocaine from Johnson on three occasions.6 Perez testified that he, too, bought cocaine from Johnson, delivered cocaine to Johnson at Sepulveda's behest, and accompanied her on at least one buying trip to Lawrence. Although Johnson argues vehemently that the witnesses against her were inherently unreliable, courts must leave such credibility determinations in the jury's domain. See David, 940 ___ _____ F.2d at 730. Here, the jury was at liberty to credit the testimony, and it, in turn, supplied all the elements necessary to convict. III. SEQUESTRATION III. SEQUESTRATION Appellants claim that, shortly after sentencing, they learned for the first time that the government housed three key witnesses (Perez, Milne, and Coriaty) in the same cell throughout the trial. Appellants moved for a new trial,7 alleging that the housing arrangements violated a sequestration order issued by the district court. The government not only contested appellants' conclusion but also contested the premise on which the conclusion ____________________ 6Both Santos and Malone also testified that they bought cocaine from defendant Richard Labrie at Johnson's abode. 7These motions are separate from, and much earlier in time than, the motions to which we alluded in note 2, supra. _____ Nonetheless, these motions, like the later motions, invoked Fed. R. Crim. P. 33. We grant appellants a considerable indulgence, assuming arguendo that the information concerning the witnesses' ________ living arrangements was not discoverable before or during trial with the exercise of due diligence. See United States v. Slade, ___ _____________ _____ 980 F.2d 27, 29 (1st Cir. 1992) (articulating standard); United ______ States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991) (similar), ______ _______ cert. denied, 112 S. Ct. 986 (1992). _____ ______ 12 rested, asserting that, though the three men were lodged within the same cell block, they did not share a cell. For reasons that are somewhat opaque, the district court denied the motion without a hearing and without findings anent the accuracy of appellants' "three to a cell" allegation. Instead, the court determined that, regardless of the dormitory arrangements, its sequestration order had not been flouted. It is against this rather spartan background that we undertake our analysis.8 A. Rule 615. A. Rule 615. ________ The sanctum sanctorum of supervised sequestration _______ _________ states in its salient segment: At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. Fed. R. Evid. 615. The rule more or less codifies common-law sequestration powers, but it is at once less discretionary and less stringent than its forebears. On one hand, the rule cabins the judge's discretion by affording all parties a right to close _____ ____________________ 8To recognize that the record sheds no light on the factual underpinnings of the sequestration dispute is not to imply that the defense lacked opportunity to explore the possibility of sequestration violations. During trial, appellants cross- examined all three witnesses at length, inquiring, inter alia, _____ ____ whether they had discussed the case with others. The examination elicited no evidence that the trio traded tales concerning past, present, or future testimony. Cf. United States v. Eyster, 948 ___ _____________ ______ F.2d 1196, 1210 (11th Cir. 1991) (finding that witnesses housed in the same cell who admitted discussing testimony with each other violated a sequestration order). Moreover, appellants knew all along that Perez, Milne, and Coriaty dwelled at the same penitentiary, yet they made no specific inquiries about the congregant housing arrangement. 13 the courtroom to prospective witnesses.9 On the other hand, while the common law supported sequestration beyond the courtroom, see 6 John Wigmore, Evidence 1840, at 471 n.7 (1976) ___ ________ (stating that, at common law, the sequestration process involves three parts: preventing prospective witnesses from consulting each other; preventing witnesses from hearing other witnesses testify; and preventing prospective witnesses from consulting witnesses who have already testified), Rule 615 contemplates a smaller reserve; by its terms, courts must "order witnesses excluded" only from the courtroom proper, see Perry v. Leeke, 488 ___ _____ _____ U.S. 272, 281 & n.4 (1989); United States v. Arruda, 715 F.2d _____________ ______ 671, 684 (1st Cir. 1983). In sum, the rule demarcates a compact procedural heartland, but leaves appreciable room for judicial innovation beyond the perimeters of that which the rule explicitly requires. See United States v. De Jongh, 937 F.2d 1, ___ _____________ ________ 3 (1st Cir. 1991) (stating that district courts possess "considerable discretion" to fashion orders pertaining to sequestration).10 ____________________ 9The rule's stringencies in that respect have not been adopted by all states. See 6 John Wigmore, Evidence 1837, at ___ ________ 458 n.11 (1976); see also id. at 35 (Supp. 1991) (compiling ___ ____ ___ data). Rather, many states continue to leave sequestration decisions solely within the judge's discretion. See, e.g., R.I. ___ ____ R. Evid. 615. 10Citing United States v. Greschner, 802 F.2d 373 (10th Cir. _____________ _________ 1986), cert. denied, 480 U.S. 908 (1987), appellants postulate _____ ______ that Rule 615 requires sequestration beyond the courtroom door. Although Greschner does equate "circumvention" of Rule 615 with a _________ violation of the rule itself, it concedes that controlling such circumvention rests within the district court's discretion a condition that clearly does not apply to violations of Rule 615 itself. Id. at 375-76. Thus, Greschner fails to support ___ _________ 14 Outside of the heartland, the district court may make whatever provisions it deems necessary to manage trials in the interests of justice, see id., including the sequestration of ___ ___ witnesses before, during, and after their testimony, see Geders ___ ______ v. United States, 425 U.S. 80, 87 (1976), and compelling the _____________ parties to present witnesses in a prescribed sequence, see United ___ ______ States v. Machor, 879 F.2d 945, 954 (1st Cir. 1989), cert. ______ ______ _____ denied, 493 U.S. 1094 (1990). Rule 615 neither dictates when and ______ how this case-management power ought to be used nor mandates any specific extra-courtroom prophylaxis, instead leaving the regulation of witness conduct outside the courtroom to the district judge's discretion. See United States v. Arias-Santana, ___ _____________ _____________ 964 F.2d 1262, 1266 (1st Cir. 1992) (explaining that a federal trial court may enter non-discussion orders at its discretion); see also Arruda, 715 F.2d at 684 (holding that there was ___ ____ ______ "technically" no violation of sequestration where witnesses conversed outside the courtroom). _______ This is not to say, however, that sequestration orders which affect witnesses outside the courtroom are a rarity. As a practical matter, district courts routinely exercise their discretion to augment Rule 615 by instructing witnesses, without making fine spatial distinctions, that they are not to discuss their testimony. Indeed, such non-discussion orders are generally thought to be a standard concomitant of basic sequestration fare, serving to fortify the protections offered by ____________________ appellants' thesis. 15 Rule 615. See Perry, 488 U.S. at 281-82. ___ _____ B. Sequestration and Cohabitation. B. Sequestration and Cohabitation. ______________________________ Here, appellants moved in advance of trial for sequestration without indicating to the court what level of restraint they thought appropriate. The court granted the motion in its simplest aspect, directing counsel "to monitor sequestration" and ordering "that witnesses who are subject to [the court's] order are not to be present in the courtroom at any time prior to their appearance to render testimony." At trial, the district court expanded its earlier order beyond the Rule 615 minimum, instructing each witness at the close of his or her testimony not to discuss that testimony with any other witness. Appellants accepted the conditions of sequestration described by the court without demurrer. What is more, they did not request any further instructions, say, that witnesses be directed at the end of each day, or before each recess, not to discuss their testimony. Thus, every witness was placed under an order prohibiting discussion of the case with other witnesses only upon the completion of his or her testimony. On these facts, the district court's denial of relief must be upheld. The court's basic sequestration order, which ploughed a straight furrow in line with Rule 615 itself, did not extend beyond the courtroom. There has been no intimation that the witnesses transgressed this order. Moreover, because the district court did not promulgate a non-discussion order applicable to any witness until the conclusion of that witness's 16 testimony, Perez, Milne, and Coriaty were under no obligation, prior to that moment, to refrain from discussing their recollections with each other. Finally, there is no evidence that any of the three ever chatted about the case with another witness after having been admonished to the contrary or at any earlier time, for that matter. Given this predicate, appellants' plaint reduces to the unprecedented proposition that witness cohabitation constitutes an automatic violation of a standard sequestration order. The crux of sequestration, however, is communication between witnesses, not shared accommodations or geographic proximity. Social settings, such as communal housing or common work sites, may offer opportunities for witnesses to compare notes and gossip about their testimony, but such environments do not ensure that forbidden conversations will occur. We assume that witnesses, like all other persons subject to court orders, will follow the instructions they receive. Cf., e.g., Richardson v. Marsh, 481 ___ ____ __________ _____ U.S. 200, 206 (1987) (reiterating the "invariable assumption of the law that jurors follow their instructions"). We conclude, therefore, that the housing arrangement, in and of itself, did not violate an existing sequestration order. If doubt inhered and we see no room for any two other considerations would then be decisive. In the first place, a district court's interpretation of its own order is customarily accorded great weight. See, e.g., Witty v. Dukakis, 3 F.3d 517, ___ ____ _____ _______ 521 (1st Cir. 1993); Martha's Vineyard Scuba Hqtrs., Inc. v. ______________________________________ 17 Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059, ________________________________________________ 1066-67 (1st Cir. 1987); Lefkowitz v. Fair, 816 F.2d 17, 22-23 _________ ____ (1st Cir. 1987). Here, the district court ruled that congregant housing of witnesses did not infringe on the sequestration that it decreed. When a trial court's interpretation of its own order tracks plain language and the actual sequence of events, that interpretation must be honored on appeal. In the second place, even if some implied ban on congregant housing of prisoner-witnesses existed, breach of a sequestration order would not automatically call for a new trial; rather, the need for a sanction, and the nature of one, if imposable, are matters committed to the trial court's sound discretion. See United States v. Rossetti, 768 F.2d 12, 16 (1st ___ _____________ ________ Cir. 1985); Arruda, 715 F.2d at 684. Appellants' failure to ______ request a broader sequestration order, coupled with the speculative nature of their claim of actual prejudice, renders it impossible to find an abuse of discretion here. See, e.g., ___ ____ Rossetti, 768 F.2d at 16. ________ To sum up, our search of the record in this case discloses no reason to suspect that the government or its witnesses transgressed the existing sequestration order. And as we have indicated, if appellants desired a more vigorous sequestration regime, such as an edict that would have banned cohabitation or other contact amongst prisoner-witnesses, they had a duty to ask for it. They failed to do so. Under these circumstances, the district court appropriately declined to 18 overturn the convictions. See, e.g., De Jongh, 937 F.2d at 3; ___ ____ ________ Rossetti, 768 F.2d at 16; see also Langel v. United States, 451 ________ ___ ____ ______ _____________ F.2d 957, 963 (8th Cir. 1971) (determining that district court's refusal to restrict witnesses from communicating with other witnesses, after some had testified, did not constitute error; defendants made "no showing . . . that Government witnesses did talk to each other after testifying"). IV. DISPUTES ANENT DISCOVERY IV. DISPUTES ANENT DISCOVERY Appellants complain vociferously about the government's conduct during discovery. The complaints have a modest basis in fact. Over the course of this logistically complex trial, the government produced a number of documents in a seemingly lackadaisical fashion. On each of these occasions, defense counsel had to scramble in order to assess the nascent discovery and integrate it into their trial strategy. On other occasions, the government refused to produce documents that defense counsel believed were discoverable either as exculpatory material, see ___ Brady v. Maryland, 373 U.S. 83, 87 (1963), or as fodder for _____ ________ impeachment, see Giglio v. United States, 405 U.S. 150, 154-55 ___ ______ ______________ (1972); see also 18 U.S.C. 3500 (1988) (requiring the ___ ____ government to disclose, after direct testimony and on the defendant's motion, any statement by the witness, in the government's possession, that relates to the subject matter of the witness's testimony). We discuss these two species of discovery problems separately. A. Delayed Discovery. A. Delayed Discovery. _________________ 19 Prosecutors have an obligation to furnish exculpatory and impeachment information to the defense in a timely fashion. Although the government's obligation goes beyond the good-faith requirement of civil discovery, see United States v. Samalot ___ ______________ _______ Perez, 767 F.2d 1, 4 (1st Cir. 1985), its bounds are not _____ limitless. Patrolling these boundaries is primarily the duty of the nisi prius court. Because the district judge is better ____ _____ attuned to the nuances of the trial, this court must take a deferential view of rulings made in the course of that patrol. When discovery material makes a belated appearance, a criminal defendant must ordinarily seek a continuance if he intends to claim prejudice. A continuance affords time to study the newly emergent information, consider its possible ramifications, change trial strategy (if necessary), assess any potential prejudice, and determine how best to use the information. As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery. See, ___ e.g., United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991); ____ _____________ ______ see also United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st ___ ____ _____________ ______________ Cir.) (concluding, in an analogous context, that a defendant's cry of unfair surprise "is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency"), cert. denied, 493 _____ ______ U.S. 862 (1989). Thus, in situations where defense counsel does not seek a continuance upon belated receipt of discoverable 20 information, a court often can assume that counsel did not need more time to incorporate the information into the defense's game plan. See United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir. ___ _____________ ________ 1986). This general rule spells defeat for the majority of appellants' delayed discovery claims. In every instance save one, appellants eschewed a request for a continuance. They have never satisfactorily explained how delays in production caused them any cognizable harm on those several occasions and the record, which reflects that appellants assimilated the new material without any perceptible hitch and used it to good effect, belies any such claim. The lack of demonstrable prejudice sounds the death knell for a "delayed discovery" claim. See United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990) ___ _____________ _____ (explaining that a defendant who complains about tardiness in disclosure "cannot rely on wholly conclusory assertions but must bear the burden of producing, at the very least, a prima facie _____ _____ showing of a plausible strategic option which the delay foreclosed"). Hence, we find appellants' delayed discovery claims, with one exception, to have been waived. The facts referable to the remaining dilatory disclosure claim can be succinctly summarized. Perez not only worked as a courier for David Sepulveda, but also supported his own cocaine habit by peddling drugs. After he was apprehended for selling cocaine, Perez agreed to testify against appellants in return for the United States Attorney's help in seeking a 21 reduced sentence. Since Perez was the only witness who tied all the defendants to David Sepulveda's illicit enterprise, his testimony was extremely important to the government's case. When defense lawyers began cross-examining Perez, it became apparent that the FBI records furnished in pretrial discovery did not list Perez's entire repertoire of criminal convictions, especially those stemming from state court proceedings and not reported to the FBI. When Perez acknowledged that a state probation officer had prepared a presentence report for a New Hampshire court, appellants asked for a continuance so that they might obtain this document and more fully research Perez's criminal history. The district court denied the motion but offered to permit the defense to recall Perez for further cross-questioning should the new information warrant it. The trial continued coincident with the defense's efforts to secure the presentence report. After some travail, New Hampshire authorities agreed to release the report to the federal court in camera. The district __ ______ judge found that it contained little fresh material but he nonetheless issued a turnover order. The defense received the report while Perez was still on the witness stand. The judge refused to grant a mistrial or afford appellants any comparable redress. We see no error. The prosecution was caught unawares; it never knew of the report's existence and, therefore, could not have deliberately withheld it. Furthermore, the rigors of Brady _____ 22 do not usually attach to material outside the federal government's control and the presentence report at issue here falls within the scope of this generality. See, e.g., United ___ ____ ______ States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (holding ______ _______ that a federal prosecutor had no duty to procure materials prepared for the state courts which were not otherwise under federal control). Last, but far from least, delayed disclosure claims cannot succeed unless the aggrieved defendant demonstrates prejudice arising from the delay. See Devin, 918 F.2d at 290 ___ _____ (refusing to reverse conviction where delayed disclosure of impeachment material "had no effect on the outcome of the trial"); Ingraldi, 793 F.2d at 411-12 (stating that the critical ________ test "is whether defendant's counsel was prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case"). Here, however, the defense's delayed receipt of the report did not hinder cross-examination to any appreciable degree. From the start of trial, appellants had a sizeable storehouse of data concerning Perez's checkered past. In comparison to what was already known, the report, which yielded a relatively inconsequential amount of incremental information, comprised small potatoes. Moreover, the timing of events minimized the possibility of prejudice. Appellants received the report while Perez was still testifying. They were able to incorporate its contents into their cross-examination and employ the information effectively. For aught that appears, the 23 course and outcome of the trial would have been the same no matter when the report surfaced. In our view, the presider's decision to allow a criminal case to go forward, notwithstanding delayed disclosure of material relevant to impeachment of a witness, should be upheld unless a manifest abuse of discretion looms. See Devin, ___ _____ 918 F.2d at 289. On this record, we can neither criticize the district court's exercise of its informed discretion nor tamper with the court's bipartite finding that the government violated no duty and that, in any event, appellants sustained no cognizable prejudice arising out of the presentence report's belated emergence. B. Denied Discovery. B. Denied Discovery. ________________ Appellants also complain that the court below, after scrutinizing certain materials in camera, denied their motion to __ ______ compel discovery. The materials in question consist of various police files, including interview notes. We have reviewed these materials and agree with the lower court that they are outside the purview of the Jencks Act, 18 U.S.C. 3500, for two reasons. First, to be discoverable under the Jencks Act, a government record of a witness interview must be substantially a verbatim account. See United States v. Newton, 891 F.2d 944, 953-54 (1st ___ _____________ ______ Cir. 1989). Second, the account must have been signed or otherwise verified by the witness himself. See United States v. ___ _____________ Gonzalez-Sanchez, 825 F.2d 572, 586-87 (1st Cir.), cert. denied, ________________ _____ ______ 484 U.S. 989 (1987). The police files at issue here, including 24 the interview notes, do not meet either of these guidelines and are, therefore, non-discoverable. A fortiori, the district court _ ________ did not blunder in denying access to them. V. COCONSPIRATORS' STATEMENTS V. COCONSPIRATORS' STATEMENTS During the course of trial, the judge allowed several witnesses to attribute out-of-court statements to one or more declarants, finding, inter alia, that the declarants were _____ ____ coconspirators. Appellants assign error. Although out-of-court statements made by non-testifying declarants ordinarily are excluded as hearsay if offered to prove the truth of the matter asserted, see Fed. R. Evid. 801(c), there ___ are exceptions to the rule. One such exception provides that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay. Fed. R. Evid 801(d)(2)(E). To invoke the exception, a party who wants to introduce a particular statement must show by a preponderance of the evidence that a conspiracy embracing both the declarant and the defendant existed, and that the declarant uttered the statement during and in furtherance of the conspiracy. See ___ Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); Ortiz, _________ _____________ _____ 966 F.2d at 714-15. The party at whom the evidence is aimed must object to the statement when it is offered; and, if the district court accepts the evidence de bene, must then ask the court at __ ____ the close of all the relevant evidence to strike the statement, i.e., to consider whether the proponent fulfilled the requisite ____ foundational requirements by a preponderance of the evidence. 25 See Ortiz, 966 F.2d at 715; United States v. Perkins, 926 F.2d ___ _____ _____________ _______ 1271, 1283 (1st Cir. 1991); see generally United States v. ___ _________ ______________ Ciampaglia, 628 F.2d 632, 638 (1st Cir.), cert. denied, 449 U.S. __________ _____ ______ 956 (1980); United States v. Petrozziello, 548 F.2d 20, 23 n.3 _____________ ____________ (1st Cir. 1977). On five occasions, at least one defendant objected to testimony anent coconspirators' out-of-court statements.11 We treat these objections as fully preserved after all, the district court told counsel that it deemed an objection by one defendant sufficient to preserve the rights of all defendants and, accordingly, we plumb the record in an effort to determine whether any or all of the district court's rulings with respect to these statements were clearly erroneous. See United States v. ___ _____________ McCarthy, 961 F.2d 972, 977 (1st Cir. 1992); United States v. ________ ______________ Cresta, 825 F.2d 538, 551 ( |