United States v. Dowdell ( 2010 )

  •           United States Court of Appeals
                          For the First Circuit
    No. 08-1855
                        UNITED STATES OF AMERICA,
                             DARRYL DOWDELL,
                          Defendant, Appellant.
             [Hon. Nathaniel M. Gorton, U.S. District Judge]
                       Torruella, Selya and Howard,
                              Circuit Judges.
         Charles W. Rankin, with whom Michelle Menken and Rankin &
    Sultan, were on brief, for appellant.
         Randall E. Kromm, Assistant United States Attorney, with whom
    Michael K. Loucks, Acting United States Attorney, was on brief, for
                            February 12, 2010
                   HOWARD, Circuit Judge. Following a three-day jury trial,
    Defendant Darryl Dowdell was convicted of distribution of cocaine
    base     and    sentenced       as   a   career     offender   to    198    months'
    imprisonment.           Dowdell appeals the conviction, alleging three
    defects:         that    the    delay    between    his    indictment      by   state
    authorities and his ultimate trial in federal court violated his
    Sixth Amendment speedy trial rights as well as the Interstate
    Agreement on Detainers; that the district court's amendment of the
    indictment       from     "cocaine"      to     "cocaine   base"    violated      the
    presentment clause of the Fifth Amendment; and that the trial court
    abused its discretion on various evidentiary rulings.                       He also
    challenges the sentence imposed, arguing that the government's
    recommended sentence of 262 months violated a promise not to seek
    a term of imprisonment longer than 20 years.                For the reasons that
    follow, we affirm both the conviction and the sentence.
    I. Background and Travel
                   While the facts surrounding the underlying offense are
    not complicated, the pre-trial procedural history of this case
    presents a maze of overlapping federal and state activity, a flurry
    of continuances, and a revolving door of withdrawn and newly
    appointed defense counsel.
                                   A. The Subject Offense
                   The following facts were elicited at Dowdell's federal
               In the summer of 2001, several Massachusetts authorities
    launched a coordinated effort with the federal Drug Enforcement
    Administration (DEA) to investigate drug trafficking in the area of
    a housing project in Roxbury.           The investigation involved a task
    force of undercover officers who made controlled purchases of
    cocaine and crack cocaine from dealers operating in the project.
    One of these officers was Boston Housing Authority investigator
    Joao Monteiro.   Posing as a construction worker, Monteiro drove an
    unmarked car with a concealed audio transmitter and a video camera
    that focused on the automobile's interior passenger compartment.
               On July 6, 2001, Monteiro observed Dowdell standing on
    the   sidewalk   with    a   man     named   Robert   White,    whom    Monteiro
    recognized from previous encounters.              Dowdell was wearing dark
    pants and a black shirt.              He and White were counting cash.
    Monteiro   signaled     to   White    that   he   wished   to   purchase   crack
    cocaine, and White went to talk to Dowdell.            White then approached
    Monteiro's car and got into the passenger seat.                     White told
    Monteiro that Dowdell, at this point identified only as "the dark-
    skinned brother" in the dark shirt, was a trustworthy dealer.
    After purchasing 1.1 grams of crack cocaine for $230, Monteiro
    asked White whether "the dude in black" was the person to see for
    future   purchases    if     White    were   unavailable.       White   replied
    affirmatively and informed Monteiro that Dowdell went by the name
    "Smoke." Monteiro departed, after informing White that he would be
    returning in a short while to make another purchase.
                Some 45 minutes later, Monteiro returned to the project
    and saw Dowdell on a bicycle.     Monteiro approached Dowdell, who
    asked Monteiro if he wanted anything.    Monteiro responded that he
    was looking for White, and Dowdell then biked over to the spot
    where White was standing.   White came over to Monteiro's car and,
    for the second time that night, sat down beside Monteiro in the
    passenger seat.    Monteiro told White that he wished to purchase
    more drugs, as well as baggies for repackaging.   White agreed and,
    after directing Monteiro to a parking area close to the spot of the
    first transaction, sold him 1.2 grams of crack cocaine and baggies
    for $210.
                Monteiro returned for a third buy on July 16, ten days
    after the first two.   When he arrived, he saw Dowdell standing in
    a small group, wearing blue jeans and a blue checkered shirt.
    Monteiro again asked for White, who was unavailable.       Monteiro
    asked for directions and drove away, making it appear that he was
    going off to search for White.    After waiting long enough to give
    the impression that the search was unsuccessful, he returned to the
    project looking for Dowdell.     He found Dowdell on the sidewalk,
    still wearing a blue checkered shirt.     Monteiro called out "Yo,
    Smoke, can I holler at you."     Dowdell approached Monteiro's car,
    and the two of them proceeded to have a conversation through the
    passenger-side window.     Continuing to address Dowdell as "Smoke,"
    Monteiro asked for about $200 worth of crack cocaine. Dowdell left
    briefly to meet with another individual and then returned with six
    bags of crack cocaine, worth approximately $100.    Seven more bags
    would eventually follow. The total weight of the thirteen bags was
    approximately 2.3 grams.    During this whole encounter, Dowdell was
    only partially visible on the video that Monteiro's surveillance
    camera recorded.
              Driving away, Monteiro narrated a description of Dowdell
    for the surveillance recording.    He stated, "Smoke is the same kid
    as the last time.. [sic] he's got on a checkered shirt blue...blue
    checkered shirt umm and he was riding a bicycle."
              Later that day, Dowdell was arrested on an outstanding
    warrant unrelated to his transactions with Monteiro.         He was
    brought to a Boston police station where a booking photo was taken.
    In the photo, Dowdell was wearing a blue checkered shirt, as
    Monteiro had described earlier in the day.       Later, around four
    hours after completing the buy from Dowdell, Monteiro was shown the
    photograph and identified the depicted individual as "Smoke."
    Monteiro reported that the individual in the photograph was the
    same person from whom he had purchased drugs that day and whom he
    had seen standing on the corner with White ten days beforehand.
                       B. Pre-Trial Procedural History
                Because the timing of particular pre-trial events is
    important to our legal analysis, we must delve into some detail in
    retracing the path on which this case traveled before it reached
    the jury.
                On March 25, 2002, eight months after the July 2001
    encounters at the housing project, a Suffolk County grand jury
    indicted    Dowdell,    based   on   those   events,     for       distributing    a
    controlled substance in the vicinity of school property.                     At his
    arraignment, he pled not guilty and was released on bail, which was
    subsequently   revoked    in    October     2003   due   to    a    charge   on   an
    unrelated crime.       On April 12, 2004, Dowdell's appointed counsel
    withdrew his representation and was replaced.                  That replacement
    would in turn withdraw in August of that year, and the court
    appointed a third attorney.
                On November 17, 2004, the federal government filed a
    criminal complaint against Dowdell based on the July 2001 events,
    charging him with distribution of crack cocaine in violation of 21
    U.S.C. § 841(a)(1).      At that time, Dowdell was already serving a
    27-month sentence in the Suffolk County House of Correction after
    a conviction on the unrelated charge that had triggered his bail
    revocation.    One month later, in December 2004, the Commonwealth
    entered a nolle prosequi on the March 25, 2002 indictment for
    distributing a controlled substance in the vicinity of school
    property,    effectively    terminating        its     prosecution.     Dowdell
    remained in state custody as he continued to serve his ongoing
    sentence on the unrelated charge, but from this point onward he
    faced only the federal distribution charge.
                On February 4, 2005, then unrepresented by counsel,
    Dowdell   wrote   a   letter   to   a    clerk   for    the   magistrate   judge
    overseeing the pre-trial proceedings in his federal case.                   The
    letter invoked his speedy trial rights under 18 U.S.C. § 3161.
    Nearly three weeks later, Dowdell followed this letter with a
    formal request under the Interstate Agreement on Detainers (IAD),
    18 U.S.C. App. 2, § 2, that he be transferred from state to federal
    custody as he awaited the resolution of the federal charge.                  On
    March 14, 2005, the federal government petitioned for a writ of
    habeas corpus ad prosequendum, and on March 22, 2005, Dowdell was
    brought into federal district court for his initial appearance, at
    which point he was assigned new representation.
                During    the      initial        appearance,     the     prosecutor
    acknowledged that Dowdell's transfer into federal custody was
    pursuant to a writ "based on the defendant's request under the
    interstate agreement on detainers."            He proceeded to explain that
    Dowdell had no intention of waiving his IAD rights, which Dowdell's
    counsel confirmed. By preserving his rights under the IAD, Dowdell
    was to remain in federal custody and receive credit toward the
    fulfillment of his term of incarceration for the unrelated charge
    in   the    state-court   system,   but       receive    no    credit     toward   any
    eventual federal sentence for the distribution offense until the
    state-court sentence had fully elapsed.
                  The next day, March 23, a federal grand jury indicted
    Dowdell,      charging    him    with    one     count        of     "knowingly    and
    intentionally      possess[ing]     with        intent        to     distribute    and
    distribut[ing] a quantity of cocaine" in violation of § 841(a)(1).
    Dowdell was arraigned on this charge on March 29, 2005.                     As in the
    state court proceedings, he entered a plea of not guilty.                          The
    court held an initial status conference on May 11, 2005, during
    which it set a deadline of June 23 for all dispositive motions.                     At
    Dowdell's request, that deadline was later extended to July 8.
                  Dowdell filed a motion to dismiss the indictment at the
    new July 8 deadline, claiming a violation of the Speedy Trial Act,
    18 U.S.C. § 3161, as well as violation of the Sixth Amendment.1
    Specifically, Dowdell posited that prejudice had resulted from the
    pre-indictment delay in federal court.2 In an unsworn declaration,
    Dowdell      contended    that    the     Commonwealth             had   vindictively
    choreographed the delay and the eventual transfer to federal
    jurisdiction in retribution for his declining to testify before a
              The Speedy Trial Act claim is not before us on appeal.
          The constitutional provision that applies to pre-indictment
    delay is, in fact, the Fifth, rather than the Sixth, Amendment.
    See United States v. Marler, 
    756 F.2d 206
    , 209–10 (1st Cir. 1985).
    Dowdell's counsel appears to have corrected this point in a
    supplemental filing.
    state grand jury in a shooting case in which he had apparently been
    the victim. The declaration claimed that the district attorney was
    upset at Dowdell's alleged inability to see the face of the shooter
    and had stated "if you blow my case I am gonna get your drug case
    sent back to the feds."        This alleged state-federal collusion,
    Dowdell argued, meant that the starting point for measuring any
    speedy   trial   violations   ought   to   be   the    date   of   his   state
    indictment, that is, March 25, 2002, rather than the federal
    indictment on March 23, 2005.
               The docket then lay dormant for four months.             Although
    the government was required by rule to file its opposition to the
    motion to dismiss within two weeks, see D. Mass. R. 7.1(b)(2), it
    was not until November 7, 2005 that the government sought leave to
    file a late opposition.       Apparently, the government had actually
    prepared the memorandum of law in July and assumed that it had been
    timely submitted. The motion for leave to file explained the delay
    as a simple error in performing the electronic submission.                The
    district court granted this request, finding no evidence of bad
    faith on the part of the government.       The next day, the government
    filed its opposition.
               On December 17, 2005, before the court had taken any
    action on the pending motion to dismiss, Dowdell moved to withdraw
    his appointed counsel -- as he had done twice before in state court
    -- claiming a breakdown in communication.             The court held an ex
    parte hearing on February 14, 2006.           It explained to Dowdell that
    appointing new counsel would further delay his case.                  Dowdell
    expressed that he would ideally like to resolve the case as soon as
    possible with his current counsel, but "we seem to not be seeing
    eye to eye with each other, so I thought I had no choice but to do
    that. . . . I don't want to put it off anymore.                I've told him
    that.        But I just felt that my life is on the line here, and I just
    felt that I need a new attorney."             The court granted Dowdell's
    request and allowed his attorney to withdraw.                Dowdell and the
    government agreed that any time that elapsed between the withdrawal
    and an eventual ruling on the motion to dismiss would be excluded
    from the speedy trial calculation.
                    On March 2, 2006, the court appointed new counsel,
    Victoria Bonilla.          On June 16, 2006, after Bonilla had time to
    acquaint herself with the case, Dowdell moved to supplement the
    motion to dismiss. The court held a non-evidentiary hearing on the
    matter and, after setting a trial date of July 31, 2006, granted
    the   motion       to   supplement.   On     June   30,   Dowdell   filed   the
    supplemental memorandum, alleging, inter alia, infringement of
    Dowdell's due process rights.3        Neither the original motion nor the
    supplemental memorandum mentioned the IAD.
                    The government filed its response on July 11, 2006.         The
    response erroneously asserted that Dowdell had in fact waived his
                The due process claim is not before us on appeal.
    IAD rights at his initial appearance, "rendering it inapplicable
    for purposes of the motion to dismiss." Regardless, the government
    claimed, no IAD violation had occurred.
              The court held a hearing on the motion on July 14, 2006.
    Bonilla, who had not been involved in the case when Dowdell first
    appeared, did not mention the IAD or contest the alleged waiver.
    As indicated in the following colloquy between Bonilla and the
    court, Dowdell's sole grounds for dismissal concerned the period
    prior to the federal indictment, rather than any post-indictment
              THE COURT: Okay.    All right.    Now, turning
              more directly to your motion, the supplemental
              motion for -- to dismiss, do I understand, Ms.
              Bonilla, that the defendant is not contesting
              the time between the indictment, the federal
              indictment, in March of 2005, and today's date
              but that what you are concentrating on is the
              time between the November or December notice,
              December of 2004, and the indictment in March
              of 2005, as exceeding 30 days in violation of
              the statute? Is that --
              MS. BONILLA: That's fair to say, your Honor.
              THE COURT: That's fair to say. So we're not
              concerned with anything that happened between
              March and the -- March of 2005 and the filing
              of the original motion to dismiss in July of
              2005, and the snafu of the government in not
              responding to that motion until November of
              2005, is that correct?
              MS. BONILLA: Yes, your Honor.       My   motion
              focuses on what happens before.
    The court ultimately denied the motion in its entirety, including
    Dowdell's constitutional speedy trial argument, and prepared to
    move onward to the July 31 trial date.          Dowdell, however, once
    again requested a continuance, this time because of the possibility
    that a prior state conviction might be expunged from his record in
    the interim (an occurrence that could affect plea negotiations).
    Michael   Bourbeau,   one   of   Bonilla's    partners   who   was   also
    representing Dowdell at the hearing, explained that "we've talked
    about Mr. Dowdell's Speedy Trial rights.       But the ramifications of
    this, I think, this prior [state conviction] -- the determination
    that can be made on that prior is, I think, very significant as to
    whether this case needs to go forward to trial."         The government
    agreed with this representation.         At that point, the court took
    pains to ensure that Dowdell understood the ramifications of any
              THE COURT: The Court's schedule is such that
              it couldn't be for probably three months.
              MR. BOURBEAU: We understand the Court's
              concern.   We've had discussion with Mr.
              THE COURT: Yeah, I mean, this is the oldest
              case, I think, on my docket, maybe not in the
              docket number but with respect to the date of
              the alleged crime. It needs to be resolved.
              Your request, of course, is made on behalf of
              the defendant now who needs to have his rights
              MR. BOURBEAU: Yes.
              THE COURT: -- pursued and resolved.
               THE COURT: All right.    The Court will allow
               the defendant's motion to continue the trial
               until September 18th on the extraordinary
               circumstance that we all find ourselves in
               this case. It is something that is very much
               of concern to the Court that this matter be
               resolved sooner rather than later, but I
               understand the import of what Mr. Bourbeau is
               suggesting and that it may well inure to the
               benefit of not only counsel but of the Court
               in terms of judicial economy or economy of the
               Court's expenditure of time. So I'm going to
               allow that motion for continuance.
    Thus, at Dowdell's own behest, the trial was pushed back an
    additional month and a half.
               The September 18th trial date met the same fate as the
    preceding July 31st date -- postponement.        For the second time
    since his federal indictment, and for the fourth time overall,
    Dowdell's attorney moved to withdraw representation.       In a motion
    dated August 8, 2006, Bonilla informed the court that Dowdell
    believed   there   to   have   been   an   irreparable   breakdown   in
    communications.    The court held an ex parte hearing on August 16,
    2006, after which it denied the motion.          But on September 8,
    Dowdell sent the court a pro se, handwritten motion to reconsider
    its denial.   On September 18, 2006, the court held another ex parte
    hearing, after which it determined that the best course was indeed
    to allow Bonilla to withdraw.    The trial date was once again pushed
    back to December 11, 2006, and a new attorney, Mark Shea, was
    appointed on October 31, 2006.
              As with his predecessors, Shea's tenure as Dowdell's
    counsel would terminate prematurely, though this time not at
    Dowdell's request.   On November 28, 2006, Shea informed the court
    that he had a conflict of interest that compelled withdrawal.    The
    court allowed another change in representation. The trial date was
    rescheduled for February 27, 2007.
              Dowdell's new attorney (now his fourth since the federal
    indictment and seventh overall) was granted a requested continuance
    on December 18, 2006 in order to acquaint himself better with the
    case.   Trial was set for April 9, 2007.       On March 15, 2007,
    Dowdell's attorney once again requested a continuance, this time
    both in order to ensure effective assistance and because of a
    personal conflict.   The court granted this final continuance.   The
    trial commenced on May 29, 2007 -- nearly six years from the date
    of the offense.
                         C. Modifying the Indictment
              We briefly depart from our chronological march through
    the events and take several steps back to August 2006, when the
    trial was still scheduled for the following month.   On August 30,
    the government filed a motion to advise the court of a potential
    variance between the text of the indictment and the proof to be
    adduced at trial.    The indictment did not refer to "cocaine base"
    or "crack cocaine," as had the federal complaint and accompanying
    affidavit, the petition for habeas corpus ad prosequendum, the
    testimony before the grand jury, the magistrate judge's colloquy
    with Dowdell at his initial appearance, and various discovery
    documents that Dowdell had previously been provided.                      Instead, it
    simply read "cocaine," potentially suggesting the powder form of
    the substance.         Arguing that modifying the text from "cocaine" to
    "cocaine base" would not constitute a material change requiring a
    superseding indictment, the government asked the court to declare
    the   original        indictment    suitable   for   trial.         The    government
    professed an inability to explain why the indictment did not
    specifically allege distribution of cocaine base, but sought to
    clarify the matter prior to trial and avoid unnecessary jury
    confusion over the controlled substance allegedly distributed.
                      Recognizing that a variance, by definition, can only be
    determined after the presentation of evidence, the court chose to
    treat       the    government's    pre-trial   motion   as    one    to    amend   the
    indictment.4          It then analyzed whether the proposed correction
    would rise to the level of a constitutional violation.                     The court
    granted the government's motion, reasoning that Dowdell had been
    well apprised all along of the fact that he was charged with
          We have explained the difference between a variance and an
    amendment as follows: "A constructive amendment occurs when the
    charging terms of the indictment are altered, either literally or
    in effect, by prosecution or court after the grand jury has last
    passed upon them. A variance occurs when the charging terms remain
    unchanged but when the facts proved at trial are different from
    those alleged in the indictment." United States v. Fisher, 
    3 F.3d 456
    , 462–63 (1st Cir. 1993) (citations and internal quotation marks
    omitted); see also Gaither v. United States, 
    413 F.2d 1061
    , 1071
    (D.C. Cir. 1969) (offering similar distinction).
    distribution of cocaine base and not cocaine powder.                It further
    noted that the particular drug type alleged (whether cocaine base
    or cocaine powder) was not actually an element under § 841(a)(1)
    and did not have any effect on the evidence the government intended
    to proffer at trial. Therefore, the court concluded, the amendment
    was akin to a permissible typographical correction.                 See United
    States v. Dowdell, 
    464 F. Supp. 2d 64
    , 68 (D. Mass. 2006).
                       D. Evidence Presented at Trial
               At     trial,     Dowdell's          primary         argument      was
    misidentification. He claimed that he was not the "Smoke" referred
    to in surveillance recordings and that the video footage was
    inconclusive as to whether a man with a blue checkered shirt was
    actually   involved.        In     order   to     corroborate        Monteiro's
    identification of Dowdell as Smoke, the government introduced,
    inter alia, two items that Dowdell had unsuccessfully attempted to
    exclude through pre-trial motions in limine: the booking sheet from
    the July 16 arrest and several of White's July 6 statements
    captured on videotape.
    1. The Booking Sheet
               The   booking   sheet   contained     both     the    photograph    of
    Dowdell in the blue checkered shirt on which Monteiro had based his
    identification, as well as a textual description of Dowdell's
    clothing as including a "blue plaid shirt."             Dowdell argued that
    the document was inadmissible because a provision of Federal Rule
    of Evidence 803(8), the so-called "law-enforcement exception,"
    forbids    the   introduction   of   police    reports   against   criminal
    defendants.      The government countered that a booking sheet should
    not run afoul of the exception because it contained merely "rote,
    routine administrative information."          The district court concluded
    that the document was admissible pursuant to both
                Fed.R.Evid. 801(d)(1) (because the document
                formed    the    basis     of    a    witness's
                identification)    and    Fed.R.Evid.    803(8)
                (because   the   document    reflects   routine
                procedures based upon information from the
                defendant   himself   and   not   observations,
                conclusions or opinions of police officers
                which are normally contained in police
                reports). In sum, the document possesses the
                requisite indicia of trustworthiness to be
                admissible under more than one of the Federal
                Rules of Evidence.
                At trial, the government proffered an edited version of
    the booking sheet. All information relating to the charges against
    Dowdell was redacted, while the sections describing clothing and
    appearance remained.      In addition, the government introduced the
    photograph separately, unaccompanied by the booking sheet.           It was
    on the basis of this photograph, rather than the booking sheet,
    that Monteiro would testify he had made his identification of
    Dowdell as Smoke.
    2. Video Evidence
                Dowdell had also objected in limine to the introduction
    of White's videotaped statements from the two transactions on July
    6, 2001.   There were two tapes at issue, one from each transaction.
    The   first    showed   White    telling   Monteiro   who   "Smoke"   was   and
    confirming that he was reliable.              The second showed Monteiro
    approaching Dowdell and asking him to summon White, which Dowdell
    then did.
                  Dowdell challenged the admissibility of the statements
    on two distinct grounds. First, he argued that the statements
    constituted proof of prior bad acts that would be barred by Rule
    404(b).       The government responded that the statements were not
    offered as prior bad acts so much as intrinsic evidence of the
    specific crime alleged.         It posited that the jury would not be able
    to understand fully the July 16th transaction without knowing what
    had occurred on July 6th. Dowdell's second argument was that there
    was insufficient evidence to treat White as a co-conspirator under
    Rule 802(d)(2)(E), and hence White's statements should be deemed
    inadmissible hearsay.      The government not only contested Dowdell's
    insufficiency claim, but also argued that the statements would be
    independently admissible as relating to the basis for Monteiro's
    identification.     Under this alternative theory, White's statements
    could at least be introduced for the impact that they had on
    Monteiro and his subsequent identification of Dowdell as "Smoke,"
    if not for the truth of the matter asserted.
                  The district court rejected both of Dowdell's objections
    during the final pre-trial conference.           With respect to the Rule
    404(b) claim, it found that "the transaction with Robert White is
    directly and instrinsically relevant to the charge against Mr.
    Dowdell in this case."        As for the hearsay claim, the district
    court adopted both of the government's theories of admissibility.
               During the course of the pre-trial conference, Dowdell
    argued that even if a transcript of the statements would be
    admissible, the videotape itself would be unfairly prejudicial.
    The government insisted that it was entitled to use the video to
    prove its case, as only the video showed what sort of opportunity
    Monteiro had to actually see Dowdell from the car.              Again, the
    district   court   rejected   Dowdell's   argument,   finding    that   the
    videotape was the best evidence.      Though ordering two minor edits
    to the video and the corresponding transcript,5 the court ruled
    that the videotaped statements were otherwise admissible in their
    original form.
                                  E. Sentencing
               On May 31, 2007, after three days of trial, the jury
    returned a guilty verdict.
               Under § 841(b)(1)(c), Dowdell would normally have faced
    a maximum sentence of 20 years.      Mention of this 20-year maximum
    had arisen earlier in the pre-trial proceedings, when Dowdell had
    challenged   the   government's   attempt   to   amend   the   indictment.
    Dowdell had initially claimed that the change in drug type was
          The two edits were (1) changing the Defendant's name in the
    transcript from "Dowdell" to "Smoke" and (2) deleting a statement
    by White that Dowdell was his "cousin."
    material because it might increase the sentence length to which he
    would be exposed.    The government had responded that because drug
    type was not an element in this case, the maximum would remain at
    20 years regardless.        In making this point, the government had
    stated in writing that it was "not seeking (and cannot seek) a
    sentence in excess of 20 years."             The district court cited this
    language in allowing the amendment.
                Nevertheless, in April 2007, the government filed an
    information to establish a prior conviction under 21 U.S.C. § 851,
    which increased the statutory maximum from 20 to 30 years (and the
    guideline   range   from    210–262    months    to   262–327   months).   At
    sentencing, the government recommended a 262-month sentence, at the
    bottom end of the guideline range but well over the original 20-
    year statutory maximum.       The court ultimately sentenced Dowdell to
    198 months, followed by six years' supervised release. Dowdell did
    not object to the sentence.
    II. Discussion
                               A. Speedy Trial Rights
                Dowdell first contends that the district court erred in
    denying his motion to dismiss on constitutional speedy trial
    grounds. The district court noted, but never resolved, whether the
    appropriate starting point for the speedy trial clock was the
    federal or the state indictment.               Because it determined that
    "Dowdell ha[d] failed to demonstrate prejudice which rises to the
    level of a constitutional violation," the court did not reach the
    issue of the precise length of the delay.      We review the speedy
    trial ruling for abuse of discretion.       United States v. Munoz-
    487 F.3d 25
    , 58 (1st Cir. 2007).
              The Sixth Amendment provides that all criminal defendants
    "shall enjoy the right to a speedy and public trial."    U.S. Const.
    amend. VI.   If the government violates this constitutional right,
    the criminal charges must be dismissed.     Strunk v. United States,
    412 U.S. 434
    , 439–40 (1973).    To determine whether a violation has
    occurred, we use the four-part balancing test established in Barker
    v. Wingo, 
    407 U.S. 514
     (1972), which requires a weighing of:    (1)
    the length of the delay, (2) the reasons for the delay, (3) the
    defendant's assertion of his right, and (4) prejudice to the
    defendant resulting from the delay.     Id. at 530.
              The threshold inquiry concerns the first of these four,
    as the sheer brevity of pre-trial delay may obviate the need for
    further analysis.   See id. ("Until there is some delay which is
    presumptively prejudicial, there is no necessity for inquiry into
    the other factors that go into the balance.").     Should there be a
    lengthier delay, however, we must engage in the "difficult and
    sensitive balancing process" of placing each of the other factors
    on the scale.   Id. at 533.   Thus, "the length of the delay is both
    the trigger for analysis and one of the factors to be considered."
    United States v. Colombo, 
    852 F.2d 19
    , 24 (1st Cir. 1988); see also
    Doggett v. United States, 
    505 U.S. 647
    , 651 (1992) (referring to
    the length-of-delay factor as a "double enquiry").               Once it is
    determined that balancing is necessary, none of the four factors
    has any talismanic power.        Rather, "we must still weigh all of the
    factors collectively before deciding whether a defendant's right to
    a speedy trial has been violated."          Colombo, 852 F.2d at 23.
                 It is not clear to us whether the district court may have
    glossed over this multi-part analysis by disposing of the issue on
    the question of prejudice alone.          In any event, a violation of the
    Speedy    Trial   Clause   may    occur    even   absent   any   affirmative
    demonstration of prejudice to the accused.          Moore v. Arizona, 
    414 U.S. 25
    , 26 (1973) (per curiam) (holding that because Barker
    "expressly rejected the notion that an affirmative demonstration of
    prejudice was necessary to prove a denial of the constitutional
    right to a speedy trial," the state court was "in fundamental
    error" for requiring a showing of prejudice to the defense at
    trial).    If indeed a lengthy delay is present, a single factor in
    isolation cannot dispose of an issue as "amorphous, slippery, and
    necessarily relative" as the right to a speedy trial.            Vermont v.
    129 S. Ct. 1283
    , 1290 (2009) (internal quotation marks
          Disposition of a constitutional speedy trial claim on
    prejudice alone is thus an error of law that itself constitutes an
    abuse of discretion. Nevertheless, even if such an error occurred
    here, it was harmless.
               Our analysis will instead begin, as the King admonished
    the White Rabbit, at the beginning: the length of the delay.           There
    is no bright-line time limit dividing the lengths that trigger
    further   Barker   inquiry   from    those   that   do   not.     Whether   a
    particular delay will warrant further speedy trial scrutiny "is
    necessarily dependent upon the peculiar circumstances of the case."
    Barker, 407 U.S. at 530–31.         Nevertheless, the Supreme Court has
    observed that "[d]epending on the nature of the charges, the lower
    courts have generally found postaccusation delay 'presumptively
    prejudicial' at least as it approaches one year."               Doggett, 505
    U.S. at 652 n.1.    Our cases comport with this observation.            See,
    e.g., United States v. Munoz-Amado, 
    182 F.3d 57
    , 61 (1st Cir. 1999)
    (nineteen months); United States v. Santiago-Becerril, 
    130 F.3d 11
    21 (1st Cir. 1997) (fifteen months).
               The difficulty in this case is determining just when the
    speedy trial clock ought to start running.           The Sixth Amendment
    right to a speedy trial attaches upon formal accusation.              United
    States v. MacDonald, 
    456 U.S. 1
    , 6–7 (1982).         In the typical case,
    this means either arrest or indictment, whichever comes first.
    United States v. Casas, 
    425 F.3d 23
    , 33 (1st Cir. 2005).                 For
    Dowdell, who did not face any pre-indictment detention on his
    federal charge, the starting point would ordinarily be the date of
    his federal indictment, March 23, 2005. Dowdell, however, does not
    challenge    any   length   of   time   that     elapsed    after   this   date.7
    Instead, he focuses on the time frame preceding it, arguing that
    his speedy trial rights in fact accrued with his state indictment
    on   March   25,   2002.    Were   that    the    case,    it    would   yield   a
    presumptively prejudicial delay of nearly three years before the
    federal indictment was returned.
                 Addressing this argument requires us to consider the
    speedy trial implications of the dual sovereignty doctrine.                Under
    this doctrine, "the federal government is not bound by the actions
    of state authorities and . . . successive state and federal
    prosecutions are constitutionally permissible."                 United States v.
    552 F.2d 435
    , 441–42 (2d Cir. 1977).               Though perhaps most
    recognizable from the double jeopardy context, see, e.g., Abbate v.
    United States, 
    359 U.S. 187
     (1959), dual sovereignty considerations
    animate our constitutional speedy trial jurisprudence, as well. In
    MacDonald, the Supreme Court briefly noted that "an arrest or
    indictment by one sovereign would not cause the speedy trial
    guarantees to become engaged as to possible subsequent indictments
    by another sovereign." 456 U.S. at 10 n.11.           Following MacDonald's
    lead, we observed in United States v. Marler, 
    756 F.2d 206
    Cir. 1985), that "a ruling that a defendant's right to a speedy
          He would, of course, have been entirely free to do so, as his
    speedy trial rights remained in effect up until his trial date,
    United States v. Jenkins-Watts, 
    574 F.3d 950
    , 966 (8th Cir. 2009),
    which was not until May 2007. Nevertheless, because Dowdell waived
    the claim with respect to this period, we do not address it.
    federal trial attaches upon his state indictment would implicate
    the   very   concerns   that   led   the    Court   to   formulate   the   dual
    sovereignty doctrine in the double jeopardy area."            Id. at 211.   We
    further elaborated the policy arguments that bolster the case for
    a robust dual sovereignty doctrine in the speedy trial context:
                 Were we to hold that Marler's state court
                 indictment triggered his speedy trial right,
                 we would in effect be requiring the federal
                 government to keep continually abreast of all
                 state criminal investigations that may present
                 the possibility of federal prosecution and to
                 pursue their own investigations, arrests,
                 indictments, and trials so as to conform with
                 state-dictated timing.     This is obviously
                 counter to the dual sovereignty doctrine as
                 well   as  to   effective,   responsible   law
                 enforcement. . . . Thus, whatever the
                 weaknesses in our dual system of justice,
                 these could only be exacerbated by the
                 proposed expansion of the sixth amendment
                 speedy trial right.
                 Dowdell does not contest the truth of any of this as a
    general matter, but he nevertheless insists that his case falls
    within a recognized exception.         He principally relies on United
    States v. Cabral, 
    475 F.2d 715
     (1st Cir. 1973).             In Cabral, state
    police officers investigating the defendant for sale of stolen
    property arrested him for possessing a sawed-off shotgun.                   The
    state turned the weapon over to federal authorities three days
    after the arrest.       Cabral was indicted in state court for the
    stolen property offense and then, fifteen months later, in federal
    court for the weapons offense.             In considering Cabral's speedy
    trial claim, we held that his constitutional right "crystallized at
    the time of his initial [state] arrest" because it was for the same
    offense as his ultimate federal indictment, and "[t]he [federal]
    government's prosecution of this charge was initiated only three
    days later when . . . state authorities turned over this weapon to
    a federal officer."    Id. at 718.    Thus, Dowdell argues, Cabral
    instructs us to attribute a state-court indictment to the federal
    government where a subsequent federal indictment was essentially a
    continuation of the state proceedings.   Because his state charges
    arose out of a federal investigation, were for the same offense as
    his federal charges, and were allegedly dismissed following a
    coordinated effort with the federal government, Dowdell would have
    us apply this Cabral exception in our speedy trial analysis here.
              Cabral, however, predates the Supreme Court's development
    of the dual sovereignty doctrine in MacDonald.     For this reason,
    the Marler court questioned, although it did not decide, whether
    Cabral remained good law.   756 F.2d at 212.   Other courts have not
    been so hesitant.     See, e.g., United States v. Garner, 
    32 F.3d 1305
    , 1309 (8th Cir. 1994) (rejecting Cabral's rationale and
    finding it "in conflict with subsequent statements made by the
    Supreme Court"); United States v. Collamore, 
    751 F. Supp. 1012
    1025 n.13 (D. Me. 1990) (recognizing that Marler had left the
    Cabral exception "an open question" and then definitively holding
    that "there is no such exception").   Dowdell labors to convince us
    of Cabral's continued vitality, pointing to some courts' careful
    efforts to distinguish it on the facts rather than reject it
    outright.   But if Cabral has managed to survive until this point,
    it has only been through the force of its own obsolescence.
    Dowdell has not identified a single post-MacDonald case from this
    or any other jurisdiction to have relied on the exception he urges
    us to rely on here.
                A quarter-century of consistent authority impels us to
    answer Marler's question and hold that Supreme Court precedent has
    abrogated Cabral.8    The speed of a federal trial is measured from
    the federal accusation on which it is based; one sovereign's
    enforcement of its own criminal laws is not attributable to another
    sovereign    merely   because   of     the   presence   of   investigatory
    assistance, prosecutorial collaboration, or overlap among charges.
                In his reply brief, Dowdell relatedly argues that this
    case falls within an exception to the dual sovereignty doctrine,
    established in Bartkus v. Illinois, 
    359 U.S. 121
    , 123–24 (1959),
    for situations in which the state prosecution is "merely a tool of
    the federal authorities."       Dowdell has waived this argument by
          Following the procedure described in cases such as Crowe v.
    365 F.3d 86
    , 89 n.1 (1st Cir. 2004) and Carpenters Local
    Union No. 26 v. U.S. Fid. & Guar. Co., 
    215 F.3d 136
    , 138 n.1 (1st
    Cir. 2000), the proposed panel opinion in this case was circulated
    to all active judges of the court, a majority of whom posed no
    objection to our handling of Cabral.     The use of this informal
    procedure does not convert this opinion into an opinion en banc,
    nor does it preclude a suggestion of rehearing en banc on any issue
    in the case, whether or not related to the panel's treatment of
    neglecting to include it in his initial brief.             See United States
    v. Hall, 
    557 F.3d 15
    , 20 n.3 (1st Cir. 2009).                     Moreover, the
    argument lacks merit.       The Bartkus exception is "narrow[ly]. . . .
    limited    to    situations   in   which    one   sovereign   so     thoroughly
    dominates or manipulates the prosecutorial machinery of another
    that   the      latter   retains   little   or    no   volition    in   its   own
    proceedings."       United States v. Guzman, 
    85 F.3d 823
    , 827 (1st Cir.
    1996).    To establish a prima facie case, Dowdell would need to show
    that "one sovereign was a pawn of the other, with the result that
    notion of two supposedly independent prosecutions is merely a
    sham."    Id.    He has not done so.    That the DEA was heavily involved
    in Dowdell's investigation establishes little more than routine
    intergovernmental assistance. "Cooperative law enforcement efforts
    between independent sovereigns are commendable, and, without more,
    such efforts will not furnish a legally adequate basis for invoking
    the Bartkus exception to the dual sovereign rule."                  Id. at 828.
    Dowdell's putative smoking gun, that an assistant district attorney
    exclaimed "if you blow my case I am gonna get your drug case sent
    back to the feds," shows, at worst, a threat.                      It does not
    establish coordinated manipulation, much less that the federal
    government was acting as a pawn of Suffolk County officials such
    that it retained little or no volition in its own proceedings.
                 We discern no evidence of improper collusion.              Although
    the Bartkus exception may apply to some speedy trial cases, this is
    not one of them.     Consequently, we conclude that Dowdell's speedy
    trial right attached on the date of his federal indictment.        There
    was no presumptively prejudicial delay, and analysis of the other
    Barker factors is therefore unnecessary.
                      B. Interstate Agreement on Detainers
                Even if the pre-trial delay does not offend the Sixth
    Amendment, it may still violate the IAD, 18 U.S.C. App. 2, § 2.
    The IAD is a congressionally sanctioned interstate compact designed
    to   "encourage     the   expeditious    and   orderly   disposition   of
    [outstanding] charges and determination of the proper status of any
    and all detainers based on untried indictments, informations, and
    complaints."    Id. art. I.    To meet this goal, the IAD prescribes
    procedures by which a member state may obtain for trial a prisoner
    incarcerated in another member jurisdiction, and by which the
    prisoner may demand the speedy disposition of certain charges
    pending against him in another jurisdiction.9       See United States v.
    436 U.S. 340
    , 343–44, 349–53 (1978) (providing background on
    the IAD).      The IAD's provisions come into play whenever the
    prosecuting authority ("the receiving state") files a detainer on
          The federal government is considered a member state for
    purposes of the IAD. United States v. Henson, 
    945 F.2d 430
    , 434
    (1st Cir. 1991).
    a prisoner serving a sentence in another jurisdiction ("the sending
                 At issue here are the speedy trial provisions that the
    IAD imposes on the receiving state.           If the receiving state
    initiates the transfer through a written request for temporary
    custody, it must bring the prisoner to trial within 120 days of his
    arrival in that jurisdiction.       18 U.S.C. App. 2, § 2, art. IV(c).
    If, on the other hand, the prisoner initiates the transfer through
    a request for final disposition, that window is 180 days from the
    sending state's receipt of the request.       Id. art. III(a).   If the
    receiving state fails to observe these strictures, it must dismiss
    the indictment.    Id. art. V(c);    United States v. Bozeman, 
    533 U.S. 146
    , 153 (2001).
                 Dowdell avers for the first time on appeal that dismissal
    is necessary because the IAD clock had expired before he was ever
    brought to trial.11    At no point before filing his appellate brief
          The IAD only applies to prisoners against whom detainers have
    been filed.    Neither party has confirmed or denied whether a
    detainer was ever actually filed against Dowdell in this case, and
    we can find no indication in the record one way or the other.
    Because the issue has not been contested, and because we ultimately
    find no reversible error, we proceed on the assumption that a
    detainer was filed. We stress, however, that parties litigating
    IAD claims ought not to take the existence of a detainer for
    granted. See Mauro, 436 U.S. at 364 n.29 (noting that "during a
    typical year federal courts issue approximately 5,000 ad
    prosequendum writs and that about 3,000 of those are in cases in
    which a detainer has previously been lodged against the prisoner").
          Both parties leave unresolved whether Dowdell initiated the
    transfer through his pro se letter, triggering the 120-day clock,
    or whether the government did through its habeas petition,
    did Dowdell so much as mention the speedy trial provisions of the
    IAD, despite ample opportunities.             Had he done so, we have little
    doubt   that    the   trial   judge,    who    consistently    demonstrated   a
    conscientious concern for Dowdell's speedy trial rights, would have
    made an effort to comply.
                   We do not look favorably on IAD arguments that are not
    raised until the trial judge is no longer in a position to avoid a
    violation. Addressing a similar scenario arising on habeas review,
    the Supreme Court endorsed the lower court's observation that "[i]t
    would not have been difficult for the judge to advance the date of
    the trial or make a finding on the record of good cause, either of
    which would have satisfied Art. IV(c).            Because the subject never
    came up, however, the trial judge overlooked the problem." Reed v.
    512 U.S. 339
    , 351 (1994) (quoting Reed v. Clark, 
    984 F.2d 209
    , 213 (7th Cir. 1993)).         The Court concluded that "[w]hen a
    defendant obscures Article IV(c)'s time prescription and avoids
    clear objection until the clock has run, cause for collateral
    review scarcely exists."       Id. at 349.       The same is true on direct
    review.   A defendant who does not timely raise his IAD rights in
    district court forfeits those rights on appeal.               United States v.
    36 F.3d 1190
    , 1209 (1st Cir. 1994); United States v. Oldaker,
    triggering the 180-day clock. The government argues that even the
    stricter 120-day clock did not expire, while Dowdell argues that
    even the more lenient 180-day clock did. Because of our ultimate
    disposition, we need not resolve the issue.
    823 F.2d 778
    , 781 (4th Cir. 1987); United States v. Eaddy, 
    595 F.2d 341
    , 346 (6th Cir. 1979).
              Dowdell now claims that his general invocation of the IAD
    at his initial appearance should have put the court on notice that
    the speedy trial provisions were in force.        Yet an abstract
    reference to the compact does not suffice to preserve all potential
    challenges that might arise under it.     One can forfeit a claim
    under one section of the IAD while preserving a different claim
    under another.   See, e.g., Neal, 36 F.3d at 1209-10; Oldaker, 823
    F.2d at 781; Eaddy, 595 F.2d at 346.    At his initial appearance,
    Dowdell referred only to his right to remain in federal custody,
    not the applicability of the statute's speedy trial deadline. This
    would be the last time that Dowdell referred to the IAD before the
    district court.12   If he intended to rely on the statutory speedy
    trial provisions, he could have brought them to the trial judge's
    attention.   He did not do so.
              Undaunted, Dowdell argues that he did not need to spell
    out the letters of the IAD for the district court because his
    motion to dismiss for violation of the Sixth Amendment and the
    Speedy Trial Act effectively accomplished the same thing.       He
          Dowdell places much of the blame for this silence on the
    government, which erroneously informed the court that Dowdell had
    waived his IAD rights at his initial appearance. While we do not
    condone the government's mistake, we note that it did not occur
    until July 11, 2006, well after Dowdell filed his motions to
    dismiss -- and well after the date when Dowdell now claims the IAD
    clock should have expired. The error, lamentable as it may be,
    cannot excuse Dowdell's forfeiture retroactively.
    relies    on    Mauro,   in   which    the   Supreme    Court    ruled    that   the
    defendant's failure to invoke the IAD "in specific terms" in his
    speedy trial motions did not result in the waiver of an Article
    IV(c) claim.        436 U.S. at 364.            In Mauro, the defendant had
    "persistently      requested"    a     speedy   trial   and     had    "sought   the
    dismissal of his indictment on the ground that the delay in
    bringing him to trial while the detainer remained lodged against
    him was causing him to be denied certain privileges at the state
    prison."       Id. at 364-65.         On those bases, the Court found his
    actions "sufficient to put the Government and the District Court on
    notice of the substance of his claim."            Id.; accord Eaddy, 595 F.2d
    at 346 (finding a speedy trial motion sufficient to give notice of
    an IAD challenge even though it "was not framed in the precise
    language of the Agreement").
                   This case is distinguishable from Mauro in two critical
    respects. First and foremost, Dowdell did not have a colorable IAD
    claim at the time he filed the speedy trial motion.                   Even assuming
    the most defendant-favorable set of circumstances, the earliest
    trial deadline under the IAD would have been July 20, 2005.13                    Yet
          The parties dispute several matters that would affect our
    calculation of the actual deadline: (1) whether Dowdell initiated
    the transfer through his pro se letter, triggering the 120-day
    clock, or whether the government did through its habeas petition,
    triggering the 180-day clock; (2) whether 78 days of excludable
    time under the Speedy Trial Act were automatically excludable under
    the IAD; and (3) whether any portion of the government's four-month
    lapse in responding to Dowdell's original motion to dismiss should
    be excludable. Giving Dowdell the benefit of the doubt on each,
    the clock would have run uninterrupted beginning with his initial
    Dowdell filed his motion to dismiss nearly two weeks earlier, on
    July 8.    Thus, Dowdell is in substance arguing that the district
    court ought to have dismissed the indictment based on a ground that
    not only was absent from the motion to dismiss, but that did not
    even exist at the time the motion was filed.             The fallacy in this
    position should be clear enough.            To have the issue preserved,
    Dowdell would not need us to infer it from his motion to dismiss so
    much as to generate it ex nihilo at some later point.                  This we
    cannot do.
               Second,      neither   Dowdell's     motion   nor   any   subsequent
    communication said anything about the negative effects that the
    outstanding detainer might be having on his rehabilitation.                   We
    think   that   element    critical   to   the    Court's   holding    in    Mauro
    because, as the Court stressed, it was the attempt to ameliorate
    precisely those effects that prompted the IAD's passage.               See 436
    U.S. at 359–60.        We do not read Mauro to mean that every speedy
    trial claim filed by a detainee necessarily contains an embedded
    IAD claim.     The Court was not propounding free association as an
    interpretive canon.       It was, rather, placing weight on the precise
    identity     between    the   defendant's     alleged    prejudice    and    the
    prejudice that the IAD targets. Because Dowdell's motion never
    represented that the requested relief would redound to the success
    of his rehabilitation, we do not consider it "sufficient to put the
    appearance on March 22, 2005, yielding a latest acceptable trial
    date of July 20, 2005.
    Government and the District Court on notice of the substance of his
    [IAD] claim" under Mauro.
               We therefore conclude that Dowdell at least forfeited any
    IAD claim by failing to raise it in the district court.            He may
    very well have waived it altogether by requesting continuance after
    continuance that pushed the trial date to May 2007.       See New York
    v. Hill, 
    528 U.S. 110
     (2000) (holding that defense counsel's
    agreement to a trial date outside the IAD period bars the defendant
    from then seeking dismissal on the ground that the trial did not
    occur within that period).     Even if the claim is not waived, our
    review is for plain error only.      Neal, 36 F.3d at 1210.   Under that
    standard, we would reverse only if Dowdell could prove “(1) that an
    error occurred; (2) that the error was clear or obvious; (3) that
    the error affected his substantial rights; and (4) that the error
    also   seriously   impaired   the    fairness,   integrity,   or   public
    reputation of judicial proceedings.”        United States v. Gonzalez,
    570 F.3d 16
    , 21 (1st Cir. 2009).
               Here, if there was any error to begin with, it was not
    clear or obvious.     The clock could not have run out before the
    motion to dismiss was filed, and we have never before found
    circumstances where the IAD clock would continue to run during the
    pendency of a defendant's motion.          On the contrary, the clock
    presumptively stops for the entirety of the pendency, no matter how
    lengthy.   See United States v. Walker, 
    924 F.2d 1
    , 5 (1st Cir.
    1991); cf. United States v. Staula, 
    80 F.3d 596
    , 601 (1st Cir.
    1996) (holding in the Speedy Trial Act context that courts may
    exclude the time between the filing of the motion and the hearing
    on that motion, even if the delay is overlong, inexplicable, or
    unreasonable).       Although Dowdell does not address any period of
    time after the court decided his motion in July 2006, we note that
    the ensuing ten months of delay were entirely due to his requests
    for continuances and change of counsel. As a result, Dowdell's IAD
    claim fails.
                          C. Amendment of the Indictment
               Dowdell         next      challenges     the      district     court's
    modification of the indictment to reflect distribution of "cocaine
    base" rather than "cocaine."            According to Dowdell, this change
    constituted a material amendment that deprived him of his right to
    presentment of charges to a grand jury.                   As we have explained
    above,   the   district      court    treated     the    proposed   change   as   a
    ministerial correction to a clerical error.                 Our review of this
    issue is de novo.     United States v. Hernandez, 
    490 F.3d 81
    , 83 (1st
    Cir. 2007).     Before we undertake that review, however, a bit of
    terminological housecleaning is in order.
               The district court appears to have viewed its task as
    explaining     why   the    proposed     change    was    not   a   "constructive
    amendment." This approach treats the word 'constructive' as a term
    of art for 'impermissible.'            That synonymic treatment may not be
    quite right, however.             A constructive amendment, as the name
    suggests, is constructive, that is, having effect in law though not
    necessarily in fact.          Amendments to an indictment can of course be
    direct rather than merely constructive, and they, too, are subject
    to the same strict constitutional standards.                  See, e.g., United
    States v. Daraio, 
    445 F.3d 253
    , 260–61 & n.8 (3d Cir. 2006)
    (contrasting an alleged constructive amendment with a "formal
    amendment," and noting that there was no claim of "actual amendment
    of the indictment by a literal change of its terms"); United States
    v. Ford, 
    872 F.2d 1231
    , 1235–36 (6th Cir. 1989) (describing first
    the separate categories of amendments and variances, and then
    constructive amendments as a form of amendment); 1 Charles Alan
    Wright, et al., Fed. Prac. & Proc. Crim. § 128 (4th ed. 2008)
    ("Allowing      the    case    against     the   accused     to    shift    in    this
    [constructive] manner after the indictment is returned raises the
    same concerns about undermining the grand jury's role as a direct
    amendment.").         Here, the district court's amendment was anything
    but   constructive,       as   it   literally    altered     the    words    of   the
    indictment's text.         There may have been doubt as to whether the
    change was permissible, but there can be no doubt that it was
               In    any     event,     the   district   court    appears      to    have,
    understandably, enlisted the nomenclature that we ourselves have
    used.   The common meaning of constructive amendment in our cases,
    which can be traced back to United States v. Dunn, 
    758 F.2d 30
    Cir. 1985), is "'when the charging terms of the indictment are
    altered, either literally or in effect, by prosecution or court
    after the grand jury has last passed upon them.'"                     Id. at 35
    (quoting Gaither v. United States, 
    413 F.2d 1061
    , 1071–72 (D.C.
    Cir. 1969)) (emphasis added).              The use of the word "literally"
    suggests that the term encompasses changes that are factually true
    just as much as those that are legally imputed.               Yet the Gaither
    case quoted in Dunn was not defining "constructive amendment" in
    particular, but rather all amendments.              Returning to the original
    source yields perhaps a more sensible definition: amendments in
    general   may   be    literal    or   in   effect    (and,   of    these,   it   is
    specifically    the     latter    that     we   refer   to    as    constructive
    amendments).    In any case, ever since Dunn, we have adhered to our
    definition of constructive amendments, most likely because they are
    the amendments that we most often come across.               See 1 Wright, et
    al. § 128 (noting that "direct attempts to amend an indictment in
    any substantive way are rare" and that "[i]nstead, the most common
    challenge in this area is a claim of 'constructive amendment'").
    On the rare occasion that we do confront a direct amendment to an
    indictment, such as here, referring to it as constructive may
    obfuscate the issue.       We will therefore eschew any reference to
    "constructive" amendment here, where there was an express amending
    of the indictment.
                  Returning to our de novo review of the amendment, we
    start with the basis for the rule against amending an indictment
    without grand jury involvement.              The prohibition is based on the
    Presentment Clause of the Fifth Amendment, which guarantees in
    relevant part that "[n]o person shall be held to answer for a
    capital, or otherwise infamous crime, unless on a presentment or
    indictment of a Grand Jury."            U.S. Const. amend. V.             The Supreme
    Court   has    interpreted    this     provision      to   mean    that    "after   an
    indictment has been returned[,] its charges may not be broadened
    through amendment except by the grand jury itself."                       Stirone v.
    United States, 
    361 U.S. 212
    , 215–16 (1960); accord Russell v.
    United States, 
    369 U.S. 749
    , 770 (1962) (holding that an indictment
    may not be "amended except by resubmission to the grand jury"); Ex
    parte Bain, 
    121 U.S. 1
    , 9–10 (1887).
                  Nevertheless,     this    prohibition        does    not     extend   to
    alterations that are "merely a matter of form."                   Russell, 369 U.S.
    at 770; see also United States v. Winter, 
    663 F.2d 1120
    , 1139–40
    (1st Cir. 1981); cf. United States v. Eirby, 
    262 F.3d 31
    , 38 (1st
    Cir. 2001) ("[A]n indictment is sufficient if it specifies the
    elements of the offense charged, fairly apprises the defendant of
    the charge against which he must defend, and allows him to contest
    it without fear of double jeopardy.").                     Accordingly, we have
    allowed ministerial corrections of clerical errors in names, dates,
    and   citations,    so   long   as     the   change    would      not    deprive    the
    defendant of notice of the charges against him.                 See Eirby, 262
    F.3d at 38 (citations); United States v. Rivera-Ruiz, 
    244 F.3d 263
    271 (1st Cir. 2001) (names); Jervis v. Hall, 
    622 F.2d 19
    , 22–23
    (1st Cir. 1980) (dates).          Other circuits have similarly allowed
    corrections regarding facts that are ancillary to the charged
    offense.    See, e.g., United States v. Powers, 
    572 F.2d 146
    , 152
    (8th Cir. 1978) (permitting change from "30-30 caliber revolver" to
    "30-30 caliber rifle").          In short, when a change "le[aves] the
    substance of the charge unaffected, the switch d[oes] not usurp the
    prerogative of the grand jury."           Eirby, 262 F.3d at 38.
                We agree with the district court that this is such a
    case.   Because Dowdell was prosecuted under § 841(a)(1), which
    prohibits distribution of any controlled substance regardless of
    type, drug identity had no bearing on the substance of the charge.
    See United States v. Rutherford, 
    175 F.3d 899
    , 906 (11th Cir. 1999)
    (explaining that under § 841(a), "[t]he nature of the controlled
    substance    neither      constitutes    an    element   of   the   offense   nor
    broadens    the   bases    for   conviction,     but   is   relevant   only   for
    sentencing purposes"); United States v. Deisch, 
    20 F.3d 139
    , 151
    (5th Cir. 1994) (concluding that "the identity of the involved
    controlled substance as being 'cocaine base' rather than simply
    'cocaine' is not an element of any section 841(a)(1) offense").
    The statute would thus hold Dowdell as culpable for distribution of
    cocaine base as it would for distribution of cocaine powder.
    Indeed, the government could technically have omitted reference to
    a particular controlled substance altogether. See United States v.
    113 F.3d 487
    , 493 (3d Cir. 1997) (reasoning that because
    "identity of the substance is a sentencing factor rather than an
    element   of   the   offense,"   an   indictment   under   §   841(a)   could
    theoretically avoid specifying the identity of the substance).14
               Had the government not clarified the matter before trial,
    and instead proceeded under the original indictment, there would
    have likely been no grounds for objection whatsoever.             Certainly
    there would have been no constructive amendment. See United States
    v. Fornilla-Castillo, 
    408 F.3d 52
    , 66 (1st Cir. 2005) (explaining
    that no constructive amendment present where the difference between
    the evidence presented and the text of the indictment does not
    affect any element of the offense).          At worst, we might have found
    a variance, although even that is far from certain.              See United
    States v. Wiley, 
    29 F.3d 345
    , 352 (8th Cir. 1994) (doubting any
    variance whatsoever would arise from difference between charge
    involving "cocaine" and evidence involving cocaine base because
    cocaine base is merely an isomer of cocaine); United States v.
    20 F.3d 139
    , 151 (5th Cir. 1994) (holding that "[f]or a
    section 841(a)(1) offense involving cocaine base[,] the indictment
          Of course, a defendant might be entitled to notice at some
    point as to the nature of the substance alleged. We merely observe
    that under § 841(a), such notice needn't come by way of the
    need only allege, and the jury need only find, that the substance
    was cocaine").    And had we gone so far as to find a variance, it
    would have been a harmless one, given all the notice that Dowdell
    had previously received that he was charged with distributing
    cocaine base rather than cocaine powder.             Cf. United States v.
    72 F.3d 228
    , 231 (1st Cir. 1995) ("So long as the statutory
    violation remains the same, the jury can convict even if the facts
    found are somewhat different than those charged -- so long as the
    difference does not cause unfair prejudice."). It would be strange
    indeed to punish the government for clarifying the indictment
    before trial when it would have been permitted to proceed without
    taking any action.
                Dowdell   argues   that    the   alteration   was   nevertheless
    prohibited based on two premises that are not in fact implicated
    here. First, he claims that the change to cocaine base effectively
    exposed him to a harsher sentencing range.           Yet even if sentencing
    amplification were relevant, none occurred here.           It is true that
    under § 841(a), cocaine base normally exposes defendants to steeper
    sentencing ranges than does cocaine powder.           But here, Dowdell was
    sentenced as a career offender under Section 4B1.1 of the U.S.
    Sentencing Guidelines.     That provision would have applied in equal
    force whether he were convicted of distributing cocaine powder or
    cocaine base; the guideline range was a product of the 30-year
    statutory   maximum   in   §   841(b)(1)(c)    and   Dowdell's    particular
    criminal history category.            Thus, because we conclude that the
    change did not in fact alter the sentencing range, we need not
    resolve     whether    sentencing    ramifications     are    relevant   to    the
    amendment analysis.15
                   Second, Dowdell asserts that the difference in chemical
    composition between cocaine powder and cocaine base means that the
    government would have had to proffer different evidence for each of
    the    substances.       Again,     even   assuming   the    relevance   of    the
    conclusion, its predicate is incorrect.               As far as culpability
    under § 841(a) is concerned, cocaine base is merely an isomer of
    cocaine.       See Wiley, 29 F.3d at 352; United States v. Pierce, 
    893 F.2d 669
    ,    676   (5th   Cir.   1990).16    The   government   could      have
            The district court expressly found no constitutional
    violation because "mitigation of sentencing ramifications within
    the statutory maximum is not among the substantial rights protected
    by the right to be indicted by a grand jury." Dowdell, 464 F.
    Supp. 2d at 68. The "substantial rights" standard, however, is
    only appropriate in the context of variances. It is true that if
    the government had proceeded to trial with the original indictment,
    then variance doctrine would have been the appropriate analytical
    framework. But since we deal here with a direct amendment, rather
    than a variance, reference to the scope of the defendant's
    substantial rights is misplaced. In any case, we leave resolution
    of this issue for a day when the question is put more squarely
    before us.
          We do not go so far as to hold in this case that a trial
    judge is necessarily permitted simply to swap any controlled
    substance under § 841(a) for any other controlled substance.
    "Cocaine" and "cocaine base" are inherently related in ways that
    other potential pairings are not. Had the difference been between
    cocaine and Vicodin, or cocaine and marijuana, it is possible the
    larger gap would weigh into our analysis. But cf. United States v.
    581 F.2d 305
    , 311–12 (2d Cir. 1978) (finding no
    substantial variance between charge of heroin distribution under
    § 841(a) and evidence of cocaine distribution).
    proferred evidence of distribution of cocaine base and still
    carried its burden of proving distribution of "cocaine." Wiley, 29
    F.3d at 352; Deisch, 20 F.3d at 150–51; Pierce, 893 F.2d at 676.
              In sum, we hold that the district court's amendment of
    the indictment from distribution of "cocaine" to "cocaine base" did
    not affect the substance of the charges and therefore did not
    offend the Presentment Clause.
                          D. Evidentiary Rulings
              Dowdell   next   raises    two    evidentiary   challenges,   one
    concerning the admission of the police booking sheet and one
    concerning admission of the coconspirator's videotaped statements.
    We take up each in turn.
    1. Admission of police booking sheet
              Dowdell claims that the booking sheet from his July 16,
    2001 arrest was inadmissible hearsay.             Normally, an otherwise
    hearsay public record is admissible so long as it sets forth
    "matters observed pursuant to duty imposed by law as to which
    matters there was a duty to report."             Fed. R. Evid. 803(8)(B).
    However, under what is sometimes called the "law enforcement
    exception," Rule 803(8)(B) retains the hearsay prohibition in
    criminal cases for any "matters observed by police officers and
    other law enforcement personnel."          Id.   We have interpreted this
    rule to mean that, as a general matter, "police reports are
    inadmissible in a criminal case when offered by the prosecution."
    United States v. Arias-Santana, 
    964 F.2d 1262
    , 1264 (1st Cir.
    1992).   The Rule on its face seems equally applicable to the
    observations contained in a booking sheet.            Nevertheless, the
    district court held that the law enforcement exception was not
    meant to encompass routine, non-adversarial documents, and on that
    basis found the booking sheet admissible.        Although our review of
    rulings admitting or excluding evidence is typically for abuse of
    discretion, our review of the district court's interpretation of a
    rule of evidence is de novo.      United States v. DeCologero, 
    530 F.3d 36
    , 58 (1st Cir. 2008).
                We have yet to consider whether the law enforcement
    exception   applies   to   an   ostensibly   objective,   non-adversarial
    document such as a booking sheet.            On two previous occasions,
    however, we have at least hinted that it should not.           First, in
    United States v. Union Nacional de Trabajadores, 
    576 F.2d 388
    Cir. 1978), we held admissible a copy of a U.S. marshal's return
    despite its genesis at the hands of law enforcement personnel.         We
    reasoned that
                [t]here is nothing to indicate that Congress
                meant to cut back upon the common law rule
                respecting sheriff's returns.   A sheriff or
                marshal reporting the service of process is
                not reporting in the capacity of a police
                observer at the scene of a crime, nor is he
                ordinarily connected with the case in a law
                enforcement capacity.      The "adversarial"
                circumstances which might render a law
                enforcement officer's observations unreliable
                are unlikely, therefore, to be present.
    Id. at 391.       Then, in United States v. Trenkler, 
    61 F.3d 45
    Cir. 1995), we cited United States v. Brown, 
    9 F.3d 907
    , 911-12
    (11th Cir. 1993), in dicta for the proposition that "Rule 803(8)
    does not necessarily prohibit the use of police records prepared in
    a    routine     non-adversarial     setting        that    do    not   result        from
    subjective investigation and evaluation." Trenkler, 61 F.3d at 59.
                   Drawing a line at routine, non-adversarial documents
    would best comport with the purpose for which Congress originally
    approved the exception.           The Rule's enactment history indicates
    that "the reason for this exclusion is that observations by police
    officers at the scene of the crime or the apprehension of the
    defendant are not as reliable as observations by public officials
    in    other     cases   because     of    the      adversarial      nature       of    the
    confrontation between the police and the defendant in criminal
    cases."   S. Rep. No. 1277, 93d Con., 2d Sess., reprinted in (1974)
    U.S.C.C.A.N. 7051, 7064.          Congress was generally "concerned about
    prosecutors attempting to prove their cases in chief simply by
    putting       into   evidence     police        officers'        reports    of        their
    contemporaneous observations of crime."                United States v. Grady,
    544 F.2d 598
    , 604 (2d Cir. 1976).
                   Recognizing   this        intent,     those       circuits    to       have
    considered the issue have all found that the limitation in Rule
    803(8)(B) does not exclude routine observations that are inherently
    non-adversarial.17        See, e.g., United States v. Harris, 
    557 F.3d 938
    ,    941   (8th     Cir.   2009)    (admitting    testimony      regarding     the
    contents of a probation file because while the rule "does prohibit
    the admission of records that contain opinions or conclusions
    resulting      from    criminal   investigations,       it   does    not    bar   the
    admission of records concerning routine and unambiguous factual
    matters"); United States v. Weiland, 
    420 F.3d 1062
    , 1074–75 (9th
    Cir. 2005) (admitting Department of Corrections' packet containing
    fingerprints and photographs of defendant because they are records
    of   "routine    and     nonadversarial     matters"     rather     than       "police
    officers' reports of their contemporaneous observations of crime
    that might be biased by the adversarial nature of the report")
    (internal      quotation      marks   omitted);     Brown,   9   F.3d     at   911-12
    (admitting property receipt prepared during booking for firearm
    because "the police custodian in the instant case had no incentive
    to   do     anything    other   than    mechanically     record     the    relevant
          Dowdell argues that there is actually a circuit split on this
    issue, citing to the Second Circuit's decision in United States v.
    560 F.2d 45
     (2d Cir. 1977). Oates, however, was concerned
    not so much with what constitutes a "report" as with who constitute
    "law enforcement personnel," holding that the term encompassed
    chemists working in the U.S. customs service. Here, there is no
    dispute that the police officers who drew up the booking sheet were
    within the class of actors envisioned by Rule 803(8)(B).       Less
    clear is whether the documents were within the class of evidence.
    On this point, even the Second Circuit has acknowledged that the
    Rule's language is not absolute.      See Grady, 544 F.2d at 604;
    United States v. Feliz, 
    467 F.3d 227
    , 236–37 (2d Cir. 2006)
    (autopsy reports prepared by medical examiner's office admissible
    because they were routinely created and did not constitute police
    information on the property receipt"); United States v. Quezada,
    754 F.2d 1190
    , 1193–94 (5th Cir. 1985) (admitting an INS form
    indicating      arrest    and      deportation      because       officials'        only
    motivation was to "mechanically register an unambiguous factual
    matter"); United States v. Orozco, 
    590 F.2d 789
    , 793–94 (9th Cir.
    1979) (finding no error in admission of Customs Service computer
    cards of license numbers of cars crossing the border since "the
    simple    recordation     of    license    numbers    .   .   .    is   not    of    the
    adversarial confrontation nature which might cloud [an officer's]
    perception"); Grady, 544 F.2d at 604 (permitting admission of
    serial number and receipt of weapons because "they did not concern
    observations . . . of the appellants' commission of crimes," but
    rather were "strictly routine records").
                Dowdell argues that this construction violates the Rule's
    plain language, which seems to bar categorically the prosecution's
    introduction of any and all documents prepared by the police. This
    much may be true.        Yet, the alternative would violate the rule's
    plain purpose, and "[i]t is a well-established canon of statutory
    construction that a court should go beyond the literal language of
    a statute if reliance on that language would defeat the plain
    purpose of the statute."           Bob Jones Univ. v. United States, 
    461 U.S. 574
    , 586 (1983).          Given the clear intent that undergirded the
    passage    of   Rule     803(8),    we    decline    to   give     it   a     literal,
    unqualified meaning. See United States v. Smith, 
    521 F.2d 957
    , 968
    n.24 (D.C. Cir. 1975) (refusing to construe 803(8)(B) according to
    its literal meaning because it "should be read[] in accordance with
    the obvious intent of Congress"); see also United States v. Pagan-
    451 F.3d 258
    , 264 (1st Cir. 2006) (referring to Rule
    803(8) as "no model of lucid drafting").           Instead, we join the
    other circuits in concluding that ministerial, non-adversarial
    information is admissible under Rule 803(8)(B), notwithstanding its
    documentation at the hands of law enforcement personnel.
               With this interpretation of Rule 803(8)(B) in place, we
    now must consider whether a booking sheet would violate it.             In an
    unpublished decision, a panel of the Fifth Circuit answered this
    precise question in the negative, summarily finding that "booking
    information [i]s taken in a routine, nonadversarial setting."
    United States v. Haughton, 235 Fed. App'x 254, 
    2007 WL 2186250
    , at
    *1 (5th Cir. Jul. 30 2007).       We agree.       The rote recitation of
    biographical information in a booking sheet ordinarily does not
    implicate the same potential perception biases that a subjective
    narrative of an investigation or an alleged offense might.                   A
    booking sheet does not recount the work that led to an arrest so
    much as the mere fact that an arrest occurred.          As a result, unlike
    the   investigative   reports   that   lie   at   the   heart    of   the   law
    enforcement exception, booking sheets raise little concern that
    suspicion of guilt will function as proof of guilt.             We think that
    a police booking sheet is in this respect analogous to the INS
    warrant that was the subject of the Fifth Circuit's analysis in
    Quezada.    The    Quezada   court   upheld      the    admissibility   of   the
    warrant,   which    recounted   the        defendant's     prior   arrest    and
    deportation,"[d]ue to the lack of any motivation on the part of the
    recording official to do other than mechanically register an
    unambiguous factual matter." 754 F.2d at 1194. The same reasoning
    applies here.
               Dowdell asserts that, even if this much may be true in
    the abstract, the particular booking sheet admitted in his trial
    may have been prepared with an eye toward proving his identity and
    as such was excludable as "indicat[ing] lack of trustworthiness."
    Fed. R. Evid. 803(8)(c).      He offers no factual support for such a
    finding,   instead      indulging     in     a   bare     worst-case-scenario
    speculation that the booking officer might have colluded with
    Monteiro before completing the form.             We need not tarry on this.
    An entirely conjectural and uncorroborated conspiracy theory does
    not   transform    an    otherwise     trustworthy        document   into     an
    untrustworthy one.18     There was no abuse of discretion.
          We note that other circuits have placed the burden of proving
    untrustworthiness under Rule 803(8) squarely on the shoulders of
    the party opposing admission.     See, e.g., Boerner v. Brown &
    Williamson Tobacco Co., 
    394 F.3d 594
    , 600–01 (8th Cir. 2005);
    Bridgeway Corp. v. Citibank, 
    201 F.3d 134
    , 143–44 (2d Cir. 2000);
    Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 
    190 F.3d 238
    , 241
    (4th Cir. 1999); Reynolds v. Green, 
    184 F.3d 589
    , 596 (6th Cir.
    1999); United States v. Loyola-Dominguez, 
    125 F.3d 1315
    , 1318 (9th
    Cir. 1997); Graef v. Chemical Leaman Corp., 
    106 F.3d 112
    , 118 (5th
    Cir. 1997). We have not yet considered who should bear the burden
    in this context, although our default position seems to be that it
    would be the party seeking admission, United States v. Bartelho,
    2. Admission of videotapes
                     Dowdell's second evidentiary challenge, that the court
    erred       in   admitting   White's   videotaped   comments    to   Monteiro,
    implicates another carve-out from the prohibition on hearsay.
    Federal Rule of Evidence 801(d)(2)(E) provides that any statement
    of a coconspirator acting during the course and in furtherance of
    a conspiracy is non-hearsay and, therefore, admissible for the
    truth of the matter asserted.           In order to determine whether the
    factual predicates for this exception exist, the trial court must
    make    a    so-called   Petrozziello    ruling.    See   United     States   v.
    547 F.2d 20
    , 23 (1st Cir. 1977).                 A Petrozziello
    ruling has two stages.         First, following a timely objection, the
    court makes a provisional finding as to whether the evidence is
    admissible.         If so, that finding is then subject to a second and
    final review at the close of all the evidence.             United States v.
    537 F.3d 71
    , 75 (1st Cir. 2008).             At both stages,
    the court applies a preponderance of the evidence standard, namely,
    whether "it is more likely than not that the declarant and the
    defendant were members of a conspiracy when the hearsay statement
    129 F.3d 663
    , 670 (1st Cir. 1997), which in this case is the
    government. Regardless, even if the government were to bear the
    burden here, neither the booking sheet itself nor the known facts
    surrouding its preparation suggest untrustworthiness by a
    preponderance of the evidence. "The government's burden [of proof]
    . . . does not mean . . . that it must disprove all of the
    defendant's alternative theories, no matter how speculative or
    implausible." United States v. Ribeiro, 
    397 F.3d 43
    , 53 (1st Cir.
    was   made,    and   that   the   statement   was    in    furtherance    of   the
    conspiracy."     Id.
                  Finding such a preponderance here, the district court
    admitted      White's   statements.      Dowdell      now    argues    that    the
    prosecution's evidence established nothing more than friendship and
    proximity with the declarant, rather than a joint venture to sell
    controlled     substances.        Assuming    this   argument    was     properly
    preserved, we must still accept the district court's findings of
    fact unless they were clearly erroneous.19                See United States v.
    449 F.3d 267
    , 273 (1st Cir. 2006).              This heavy burden is
          There may be some uncertainty as to the proper standard of
    review for Petrozziello rulings, due to recent cases that employ
    the abuse of discretion standard.     See, e.g., United States v.
    532 F.3d 37
    , 65 (1st Cir. 2008); United States v.
    Colon Diaz, 
    521 F.3d 29
    , 36 (1st Cir. 2008); United States v.
    497 F.3d 71
    , 82 (1st Cir. 2007). But we long ago
    said in United States v. Patterson, 
    644 F.2d 890
    , 894 (1st Cir.
    1981), and have endorsed on countless subsequent occasions, that we
    review a trial court's Petrozziello determination for clear error.
    Every other circuit has long been in accord. See United States v.
    52 F.3d 1080
    , 1110 (D.C. Cir. 1995); United States v.
    971 F.2d 1257
    , 1260–61 (6th Cir. 1992); United States v.
    910 F.2d 1072
    , 1081 n.11 (3d Cir. 1990); United States v.
    877 F.2d 828
    , 831 (10th Cir. 1989); United States v.
    863 F.2d 1168
    , 1172 (4th Cir. 1989). United States v.
    819 F.2d 813
    , 820 (7th Cir. 1987); United States v. Rahme,
    813 F.2d 31
    , 36 (2d Cir. 1987); United States v. Silverman, 
    771 F.2d 1193
    , 1199 (9th Cir. 1985); United States v. Harshaw, 
    705 F.2d 317
    , 320 (8th Cir. 1983; United States v. Bulman, 
    667 F.2d 1374
    1379 (11th Cir. 1982); United States v. Perry, 
    624 F.2d 29
    , 30 (5th
    Cir. 1980).      See also Christopher B. Mueller & Laird C.
    Kirkpatrick, Federal Evidence § 8:62 (3d ed. 2007) (referring to
    "almost universal agreement" throughout the federal judiciary on
    use of clear error review). In the Petrozziello context, it is
    likely that review for abuse of discretion applies only to the
    district court's ultimate decision whether to admit or exclude the
    statement, and not to the underlying factual findings.
    carried only when "although there is evidence to support [the
    finding], the reviewing court on the entire evidence is left with
    the definite and firm conviction that a mistake has been committed.
    Where the evidence is susceptible of two plausible interpretations,
    the   trier     of    fact's      choice   between     them    cannot     be   clearly
    erroneous."        United States v. Newton, 
    326 F.3d 253
    , 257 (1st Cir.
    2003).      A heavier burden still awaits those attempting unpreserved
    challenges, which are reviewed only for plain error. United States
    v. Aviles-Colon, 
    536 F.3d 1
    , 14 (1st Cir. 2008).                          Though the
    parties disagree as to whether Dowdell successfully preserved his
    challenge by renewing his objection at the close of all the
    evidence, the dispute is ultimately irrelevant.                   Even adopting the
    less deferential standard, we would still affirm the district
    court's ruling.
                  It     is   well    established      that    "the   preponderance    of
    evidence required for the introduction of an out-of-court statement
    under Rule 801(d)(2)(E) must necessarily comprise more than the
    weight of the statement itself."                  United States v. Sepulveda, 
    15 F.3d 1161
    , 1181 (1st Cir. 1993).                     An alleged coconspirator's
    declarations are thus insufficient in isolation. At the same time,
    however, the court may consider the hearsay statements themselves
    in    the    context      of     other   extrinsic,       corroborating    evidence.
    Bourjaily v. United States, 
    483 U.S. 171
    , 180–81 (1987); United
    States v. Mangual-Garcia, 
    505 F.3d 1
    , 8 n.5 (1st Cir. 2007).                     Such
    corroboration was amply available here.              When Monteiro first saw
    White on July 6, White was counting cash with Dowdell.                     Moments
    later, when White agreed to make the initial sale to Monteiro, his
    first action was to walk over to Dowdell and consult with him.
    Then, on July 16, Dowdell sold drugs to Monteiro when White was
    unavailable.       These      facts,   coupled      with    White's   statements
    themselves, adequately supported a finding of a conspiracy by a
    preponderance of the evidence. Accordingly, the district court did
    not clearly err in its Petrozziello ruling.
                 Dowdell further maintains that even if the statements
    themselves were admissible, introducing them on video nevertheless
    violated     Federal   Rule    of   Evidence     403,      which   provides   that
    otherwise admissible evidence "may be excluded if its probative
    value   is    substantially     outweighed     by    the     danger   of   unfair
    prejudice."     Specifically, he argues that a printed transcript
    would have been less prejudicial because it would not have allowed
    the jury to see White, who, according to Dowdell, "looks like an
    obvious drug addict and just makes a very bad impression."                 But the
    mere fact that Dowdell might have fared better without the video is
    not in itself cause for exclusion.             "By design, all evidence is
    meant to be prejudicial; it is only unfair prejudice which must be
    avoided."     United States v. Rodriguez-Estrada, 
    877 F.2d 153
    , 156
    (1st Cir. 1989) (emphasis in original).             The trial court has wide
    latitude in determining when the amount of unfair prejudice has
    tipped the scale too far.         "Only rarely -- and in extraordinarily
    compelling circumstances -- will we, from the vista of a cold
    appellate record, reverse a district court's on-the-spot judgment
    concerning the relative weighing of probative value and unfair
    effect."   United States v. Shinderman, 
    515 F.3d 5
    , 17 (1st Cir.
    2008) (quoting Freeman v. Package Mach. Co., 
    865 F.2d 1331
    , 1340
    (1st Cir. 1988)).
               In this case, in which the reliability of Monteiro's
    identification     of   Dowdell    as    Smoke    was       hotly   contested,    any
    contextual inferences available from a visual record would be
    highly probative.       Whatever minimal unfair prejudice might have
    resulted from seeing White's physical appearance, it did not
    overcome this probative value.           In any event, it was Dowdell, not
    the government, who chose to associate himself with White.                        We
    discern no abuse of discretion.
                                      E. Sentencing
               This    brings   us    to    the    last    of    Dowdell's   litany   of
    arguments. He asks us to vacate his 198-month sentence because the
    government allegedly reneged on a promise not to seek a sentence
    greater than 20 years.       A sentence of 198 months is, of course,
    itself less than 20 years.         Dowdell's theory is that the sentence
    was nevertheless voidable because the government's filing of an
    information   of   prior    conviction,        which    increased      the   minimum
    guideline sentence from 210 to 262 months, raised the baseline from
    which the trial court would have varied downward.          Because this
    issue was not raised at sentencing, we review for plain error,
    United States v. Matos, 
    531 F.3d 121
    , 122 (1st Cir. 2008), although
    we think this argument ultimately unavailing under any standard of
              Dowdell does not make clear what jurisprudential basis
    would merit vacating a sentence in this context.         He directs our
    attention to Santobello v. New York, 
    404 U.S. 257
     (1971), United
    States v. Gonczy, 
    357 F.3d 50
    , 53 (1st Cir. 2004), United States v.
    896 F.2d 710
    , 714 (2d Cir. 1990), and United States v.
    840 F.2d 1022
    , 1026 (1st Cir. 1988), but none is on point.
    Those cases all deal with a prosecutor's breach of an assurance
    made during a plea agreement, not an isolated comment made during
    a pre-trial hearing in a case in which the defendant received his
    full panoply of constitutional trial rights.       Cf. Gonczy, 357 F.3d
    at 53 (explaining that the "meticulous standards of both promise
    and performance" that govern prosecutors in plea agreements stem
    from the defendant's waiver of fundamental constitutional rights
    that would otherwise be present in a jury trial).
              Instead, we understand Dowdell to be advancing a theory
    of estoppel.     The lack of any briefing on this issue renders the
    issue waived.     See United States v. Zannino, 
    895 F.2d 1
    , 17 (1st
    Cir. 1990).     Even if not waived, the argument is not supported by
    the   record.      The   government   did   not,   as   Dowdell   argues,
    affirmatively commit itself to the original 20-year statutory
    maximum. Rather, it offered a descriptive (and accurate) statement
    of sentencing law.      The government explained to the court that the
    proposed change to the indictment would not violate Apprendi in
    that the statutory maximum would remain the same irrespective of
    the controlled substance alleged in the indictment.         See Apprendi
    v. New Jersey, 
    530 U.S. 466
     (2000).       At the time, that statutory
    maximum was 20 years.        Upon the filing of the information, it
    became 30 years. Although the number changed, the substance of the
    government's remark -- that drug identity would have no impact on
    the statutory maximum -- remained just as applicable.           Thus we
    disagree with Dowdell's assertion that the government bound itself
    to   any   particular    sentencing   recommendation   to   begin   with.
    Moreover, even had such a promise existed, there is no evidence in
    the record to suggest that the court gave any weight whatsoever to
    the government recommendation at sentencing. Dowdell thus fails to
    show a reasonable probability that he would have received a more
    lenient sentence but for the alleged error.     See Matos, 531 F.3d at
    122–23.     For all of these reasons, we find no flaw in Dowdell's
    III. Conclusion
                The appellant's conviction and sentence are AFFIRMED.