USCA1 Opinion
July 12, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________
No. 95-1584
UNITED STATES,
Appellee,
v.
GERARD DISANTO,
Defendant - Appellant.
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ERRATA SHEET
The opinion of this Court issued on June 14, 1996, is
amended as follows:
Page 20, line 23, is amended by inserting "of the impact"
after "assessment" in the United States v. Rivera-G mez, 67 F.39
_____________ ____________
993, 998 (1st Cir. 1995), parenthetical.
Page 49, last line, is amended by changing "Id. at 872" to
___
"Morillo, 8 F.3d at 872".
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1584
UNITED STATES,
Appellee,
v.
GERARD DISANTO,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Paul J. Haley, with whom Law Office of Paul J. Haley, was on
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brief for appellant.
John M. Griffin, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for
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appellee.
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June 14, 1996
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TORRUELLA, Chief Judge. After a nine-day trial,
TORRUELLA, Chief Judge
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Appellant Gerard DiSanto ("Appellant") was convicted for
attempted arson in violation of 18 U.S.C. 844(i), the federal
arson statute, which makes it a federal crime to destroy by means
of fire property used in or affecting interstate or foreign
commerce; and for conspiracy to commit arson in violation of 18
U.S.C. 371. Appellant appeals his conviction as well as his
sentence on a number of grounds. For the following reasons, we
affirm the district court's judgment and sentence in all
respects.
FACTUAL AND PROCEDURAL BACKGROUND
FACTUAL AND PROCEDURAL BACKGROUND
_________________________________
Presenting the facts in the light most hospitable to
the jury's verdict, see United States v. Staula, 80 F.3d 596, 599
___ _____________ ______
(1st Cir. 1996); United States v. Ortiz, 966 F.2d 707, 711 (1st
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Cir. 1992), cert. denied, 506 U.S. 1063 (1993), the evidence
____________
presented during the nine-day trial tended to show the following.
The Galleria II was a family-style restaurant and pub
serving Italian food and pizza, located in Westport,
Massachusetts (the "restaurant"), which was owned by three
partners: Appellant, Robert Ashness ("Ashness") and Dr. Louis
Aguiar ("Dr. Aguiar"). The restaurant was located in a building
which Appellant and Ashness leased from Dr. Aguiar and Fernando
L pes ("L pes"). The lease agreement provided, among other
things, for a monthly rent of $3,600 and an option for the
restaurant owners to purchase L pes' share in the property. The
restaurant received natural gas and food supplies that moved
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through interstate commerce. Although very successful during the
summer months of 1991, its first year of operation, the Galleria
II's business proved to be seasonal and business slowed
considerably after the summer. In addition to the slow business,
there were significant problems with the building's water and
septic systems and the relationship between Appellant and Dr.
Aguiar deteriorated over who was responsible to pay for the
required improvements: the restaurant, as tenant, or Dr. Aguiar
and L pes, as landlords.
Among the Galleria II's employees, Randy Schaller
("Schaller") served as chef and as kitchen manager; and Shelley
McKenna ("McKenna") served as the bar manager and hostess and was
also responsible for the cash and bookkeeping. Both Schaller and
McKenna had longstanding business relationships with Appellant
and considered him a friend. Beginning in the fall of 1991,
Appellant began discussing with Schaller the need for renovating
the restaurant. In addition to correcting the water and septic
systems, Appellant proposed that an outside roof-top deck be
installed for the purpose of increasing liquor sales during the
peak summer season. Appellant told Schaller that he wanted to
finance the renovations by burning the top of the restaurant
above the second floor as the insurance proceeds from the fire
would provide funds for the renovations. As part of his plan,
Appellant increased the Galleria II's existing insurance coverage
(building, contents, and premises liability) by purchasing
$90,000 of business interruption insurance, which became
-3-
effective December 3, 1991, two months before the arson attempts.
The proceeds from the business interruption coverage could have
been used for any purpose, including for the repair of the water
and septic systems.
On or about February 19, 1992, after unsuccessfully
attempting to hire someone else to burn the top of the
restaurant, Appellant attempted to set a fire himself by igniting
a stack of papers in the attic of the restaurant. The fire
burned out, however, before it could fully ignite the exposed
wood frame. Both Schaller and McKenna, who had been drawn to the
attic because of the open attic door, discovered Appellant
standing over the burning stack of papers and refused to get
involved. During the days following his first failed attempt,
Appellant asked Schaller if he would help by pouring gasoline on
the attic rafters as part of a plan whereby Appellant would
return later to ignite the gasoline. After repeatedly declining
to get involved, Schaller finally agreed to assist Appellant.
Shortly after noon on February 23, 1992, Schaller
poured gasoline, as Appellant had requested, onto the exposed
attic rafters and insulation and informed Appellant that he had
done so. About mid-afternoon, Appellant and Schaller left the
restaurant. At approximately 4:00 p.m. that same afternoon, the
Westport Fire Department responded to a complaint from the
restaurant that there was a strong odor of gas, which both
patrons and employees at the restaurant had detected. After
evacuating the building, the firefighters discovered the
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gasoline-soaked boards and insulation as well as evidence of
charring on the attic floor and ceiling. According to the fire
department, the charring was unrelated to the much larger area of
the attic that was saturated with gasoline, representing a
separate, previous attempt to start a fire.
A few days later, Schaller admitted to the police that
he had poured the gasoline. Although Appellant told law
enforcement officials that he would fire Schaller when they
informed him of Schaller's confession, Appellant never fired
Schaller, and Schaller worked at the restaurant until it closed.
On December 6, 1993, Schaller entered a plea of guilty to the
federal indictment charging him with the second attempted arson.
Pursuant to his plea agreement, he agreed to cooperate with law
enforcement officials. As part of that cooperation, Schaller
engaged in four conversations -- three in person and one by
telephone -- with Appellant that were recorded by law enforcement
agents.1 In July 1994, a two count indictment was returned by
the federal grand jury charging Appellant with attempted arson of
a building affecting interstate commerce under 18 U.S.C. 844(i)
and conspiracy to commit arson under 18 U.S.C. 371. Prior to
trial, Appellant filed a motion in limine to exclude from
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evidence the four recorded conversations between Appellant and
Schaller, which included incriminating statements made by
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1 The conversations occurred on February 24, March 1, March 4,
and May 25 of 1994.
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Appellant. After a hearing, the court denied the motion and
admitted the tapes after certain portions were excised.
During a nine-day trial on the merits, in which nine
witnesses testified for the prosecution (including Schaller,
pursuant to his plea agreement), the prosecution presented its
theory that Appellant attempted to burn the restaurant in order
to recover insurance proceeds to finance renovations and
improvements of the restaurant. The defense called three
witnesses, including McKenna. Among other matters, the witnesses
testified that Schaller's reputation for truthfulness was "zero;"
that the business interruption insurance was purchased as a
result of significant storms which had caused the Galleria II to
close; that, after leaving with Schaller during the afternoon of
February 22, Appellant had no intention of returning to the
restaurant; and that Appellant was with McKenna during the
evening of February 22, planning their next day's business trip.
During the trial, Appellant moved for a mistrial, which
was denied, on the grounds that improper testimony regarding his
ownership of a "gay night club" was prejudicial. Both at the
close of the government's case-in-chief and at the close of all
the evidence, Appellant moved for judgment of acquittal on the
ground that the evidence was insufficient to establish that the
Galleria II was a building affecting interstate commerce. The
district court denied both motions.
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Based on the foregoing and other evidence, the jury
convicted Appellant on February 10, 1995, on both counts of
attempted arson and conspiracy to commit arson. Appellant
subsequently moved for a new trial which the district court
denied. On May 25, 1995, the district court sentenced Appellant
to a term of seventy-eight (78) months' imprisonment, imposed a
fine of $12,500, restitution to the Westport Police Department in
the amount of $386, and ordered supervised release for three (3)
years. Appellant appeals both his conviction and his sentence.
We have jurisdiction pursuant to Rule 4(b) of Federal Rules of
Appellate Procedure.
DISCUSSION
DISCUSSION
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I. Appellant's Motions for Judgment of Acquittal
I. Appellant's Motions for Judgment of Acquittal
Appellant claims reversible error in the denial of his
motions for judgment of acquittal. See Fed. R. Crim. P. 29.
___
Below, Appellant based his motions for acquittal on sufficiency
of the evidence grounds, which included the argument that there
was insufficient evidence to prove the requisite nexus to
interstate commerce under the federal arson statute.2 On
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2 The federal arson statute provides:
Whoever maliciously damages or destroys,
or attempts to damage or destroy, by
means of fire or an explosive, any
building, vehicle, or other real or
personal property used in interstate or
foreign commerce or in any activity
affecting interstate or foreign commerce
. . . [is guilty of a crime].
18 U.S.C. 844(i) (1994).
-7-
appeal, he raises new arguments based on the Supreme Court's
decision in United States v. L pez, ___ U.S. ___, 115 S. Ct. 1624
_____________ _____
(1995), which struck down the Gun Free School Zone Act, 18 U.S.C.
922(q), as exceeding Congress' authority under the Commerce
Clause3 to regulate interstate commerce. Appellant now argues
that, in light of L pez, the federal arson statute is
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unconstitutional and that, accordingly, the district court lacked
subject matter jurisdiction. In the alternative, Appellant
argues that under L pez there is insufficient evidence to prove
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that the Galleria II was a building that "substantially affected"
interstate commerce.
Specifically, Appellant now claims that this is a
simple state arson case which Congress has no power under the
Commerce Clause to federalize and thereby undercut Massachusetts'
power to prosecute Appellant under its own arson statute, Mass.
Gen. Laws Ann. ch. 266, 1. In support of this argument,
Appellant insists that L pez effectively overruled the Supreme
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Court's earlier decision in Russell v. United States, 471 U.S.
_______ _____________
858, 859 (1985), which concluded that the federal arson statute
expresses Congressional intent to exercise its full power under
the Commerce Clause. Id. (holding that rental property was
__
property used in an activity affecting interstate commerce within
the meaning of the federal arson statute). Consequently,
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3 Under the Commerce Clause, Congress is empowered "[t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." U.S. Const. art. I, 8,
cl. 3.
-8-
Appellant challenges the "continuing viability" of United States
_____________
v. Medeiros, 897 F.2d 13 (1st Cir. 1990), in which we held that
________
after Russell rental property is per se "unquestionably
_______ _______
sufficiently connected to interstate commerce to confer
jurisdiction" and satisfy the jurisdictional element of the
federal arson statute. Id. at 16-17. Appellant, thus, urges us
__
to reexamine our holding in Medeiros in light of L pez'
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"substantially affect" nexus requirement between the illegal
activity and interstate commerce, and reverse his convictions on
the grounds that the evidence does not prove that the attempted
arson of the Galleria II "substantially affects" interstate
commerce.
1. The Constitutionality of Section 844(i)
1. The Constitutionality of Section 844(i)
A. Standard of Review
A. Standard of Review
Although Appellant failed to raise his L pez-based
_____
challenge below,4 a claim that a statute is unconstitutional or
that the court lacked jurisdiction may be raised for the first
time on appeal. United States v. Seuss, 474 F.2d 385, 387 n.2
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(1st Cir.), cert. denied., 412 U.S. 928 (1973); see also, Fed. R.
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Crim. P. 12(b)(2) (lack of jurisdiction may be noticed by the
court at any time). We review a determination of the
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4 Appellant did not make these L pez-based arguments below as
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L pez had not yet been decided. We note that Appellant does not
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argue that we must consider L pez even though rendered after his
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trial because it establishes a new rule for criminal prosecutions
and must be applied retroactively. See Griffith v. Kentucky, 479
___ ________ ________
U.S. 314 (1987); United States v. Melvin, 27 F.3d 703, 707 n.4
______________ ______
(1st Cir. 1994). We need not address this issue, or decide
whether this case falls within Griffith, because, regardless of
________
waiver, Appellant does not prevail on the merits.
-9-
constitutionality of a federal statute de novo. See United
_______ ___ ______
States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995)
______ _____________
(applying, without explicitly stating so, de novo review to
________
L pez-based constitutional challenge not raised during pre-L pez
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proceedings); United States v. Sherlin, 67 F.3d 1208, 1213-14
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(6th Cir. 1995) (applying de novo review to L pez-based
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constitutional challenge to the federal arson statute), cert.
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denied, 116 S. Ct. 795 (1996); United States v. Aguilar-Aranceta,
______ _____________ ________________
957 F.2d 18, 21 (1st Cir. 1992) (reviewing de novo questions of
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constitutional law). But see United States v. Spires, 79 F.3d
_______ _____________ ______
464, 465 (5th Cir. 1996) (reviewing only for plain error L pez-
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based constitutional challenge not raised below during pre-L pez
_____
proceedings); United States v. Dupaquier, 74 F.3d 615, 619 (5th
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Cir. 1996) (same); Daigle v. Maine Medical Center, Inc., 14 F.3d
______ __________________________
684, 687-88 (1st Cir. 1994) ("The raise-or-waive rule applies
with full force to constitutional challenges."). Regardless of
what standard of review we apply, the result is the same since
even under the more favorable de novo standard, we reject
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Appellant's constitutional and jurisdictional challenges, finding
that L pez in no way provides grounds for reversal in this case.
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B. Discussion
B. Discussion
As with the federal arson statute at issue here,
Congress has often invoked its authority under the Commerce
Clause to federalize criminal activity. Appellant points to
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L pez and its invalidation of the Gun Free School Zone Act5 as
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evidence that the Supreme Court's present position is to
restrictively interpret the Commerce Clause when it is used as a
foundation for a criminal statute. See L pez, 115 S. Ct. at 1631
___ _____
n.3 ("Under our federal system, the 'States possess primary
authority for defining and enforcing the federal law.'" (quoting
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993))). The L pez
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Court recognized three categories of activity which Congress may
regulate under the Commerce Clause: (i) "the use of the channels
of interstate commerce"; (ii) "the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities";
and (iii) "those activities that substantially affect interstate
commerce." L pez, 115 S. Ct. at 1629-30.
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After L pez, the Court explained in United States v.
_____ ______________
Robertson, ___ U.S. ___, 115 S. Ct. 1732 (1995) (per curiam),
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that these three bases of congressional authority are
analytically distinct, reaffirming the distinction between
activities engaged in interstate commerce and purely intrastate
activities having a substantial effect on interstate commerce.
See Robertson, ___ U.S. at ___, 115 S. Ct. at 1733. The Court
___ _________
stated that the "'affecting commerce' test was developed in our
jurisprudence to define the extent of Congress' power over purely
intrastate commercial activities that nonetheless have
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5 This Act made it a federal offense to knowingly possess a
firearm at a place that the individual knows or has reasonable
cause to believe is a school zone.
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substantial interstate effects." Id. at ___, 115 S. Ct. at 1733
_____ ___
(emphasis in original) (concluding that transporting equipment
and workers from out of state fell within 18 U.S.C. 1962(a)'s
alternative criterion without regard to the "affecting commerce"
test).
We consider the federal arson statute and the Court's
pre-L pez holding in Russell in light of this framework,
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concluding that L pez does not invalidate 18 U.S.C. 844(i).
_____
First, by its plain language, Section 844(i) clearly falls under
both the second and third L pez categories in that it protects
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property that is either "used in interstate or foreign commerce
__
or in any activity affecting interstate or foreign commerce." 18
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U.S.C. 844(i) (emphasis added).
Second, the federal arson statute contains the
requisite "jurisdictional element" and thus is readily
distinguishable from the provision invalidated in L pez. As we
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recently noted in D az-Mart nez, the Supreme Court in L pez
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"found significant that the statute in that case, 18 U.S.C.
922(q) [the federal firearms possession statute], 'contain[ed] no
jurisdictional element which would ensure, through case-by-case
inquiry, that the firearm possession in question affects
interstate commerce.'" D az-Mart nez, 71 F.3d at 953 (quoting
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L pez, 115 S. Ct. at 1631). We held that, unlike L pez, the
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jurisdictional element was present in 18 U.S.C. 922(k) because
it contains a specific requirement that the firearm with the
obliterated serial number have been "shipped or transported in
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interstate or foreign commerce." 18 U.S.C. 922(k); D az-
_____
Mart nez, 71 F.3d at 953 (holding that "[w]hatever the reach of
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L pez, it does not invalidate 18 U.S.C. 922(k)"). Here, too,
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the federal arson statute contains the requisite jurisdictional
element which similarly ensures that, case-by-case, the property
damaged by the arson must have been "used in interstate . . .
commerce or in an activity affecting interstate . . . commerce."
18 U.S.C. 844(i).
Third, while the federal arson statute is similar to
that struck down in L pez in that it does not regulate commercial
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or economic activity, see United States v. Pappadopoulos, 64 F.3d
___ _____________ _____________
522, 526-27 (9th Cir. 1995), it does regulate the damage or
destruction of business property that satisfies the requisite
interstate nexus, see Russell, 471 U.S. at 860-62 ("Congress at
___ _______
least intended to protect all business property"); United States
_____________
v. Flaherty, 76 F.3d 967, 974 (8th Cir. 1996). Particularly in
________
the absence of any mention of Russell in the majority opinion of
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L pez, we can find no reason to conclude that L pez invalidates
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Russell's analysis of Section 844(i)'s purpose and legislative
_______
history or its conclusion that the federal arson statute
constitutionally regulates arson of business property that
satisfies the requisite jurisdictional element. Russell, 471
_______
U.S. at 860-62. After all, whatever L pez' reach, it certainly
_____
did not purport to overrule cases upholding application of the
Commerce Clause power to wholly intrastate activities satisfying
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the requisite nexus to interstate commerce. See United States v.
___ _____________
Genao, 79 F.3d 1333, 1336 (2d Cir. 1996).
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Furthermore, we reject Appellant's argument that
Section 844(i) is unconstitutional because it improperly intrudes
into Massachusetts' primary authority for defining and enforcing
the criminal law. By virtue of the fact that the federal arson
statute is a criminal law it indeed intrudes upon states'
traditional dominion over the criminal law. L pez, 115 S. Ct. at
_____
1631 n.3 ("Under our federal system, the 'States possess primary
authority for defining and enforcing the criminal law.'" (quoting
Abrahamson, 507 U.S. at 635)). However, "not every federal foray
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into criminal law is invalid." United States v. Bishop, 66 F.3d
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569, 584 (3d Cir. 1995) (rejecting L pez-based challenge to the
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constitutionality of the federal carjacking statute, 18 U.S.C.
2119). Where, as here, the criminal statute satisfies the
constitutional limits of the Commerce Clause, it withstands the
challenge that it interferes with the states' ability to define
and enforce the criminal law. See Russell, 471 U.S. at 860-62.
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Finally, we note that we join our fellow circuits in arriving at
the conclusion that 18 U.S.C. 844(i) passes constitutional
muster under L pez. See, e.g., Flaherty, 76 F.3d at 974; United
_____ ___ ____ ________ ______
States v. Denalli, 73 F.3d 328, 329 (11th Cir. 1996); Sherlin, 67
______ _______ _______
F.3d at 1213-14; Pappadopoulos, 64 F.3d at 526.
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Because we find no basis to question the presumed
validity of 18 U.S.C. 844(i), we conclude that the district
court properly had subject-matter jurisdiction conferred by
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virtue of the fact that Appellant was charged with an "offense
against the United States." 18 U.S.C. 3231. See United States
___ _____________
v. Ryan, 41 F.3d 361, 363-64 (8th Cir. 1994) (noting that "if
____
[the jurisdictional] element is not satisfied, then [defendant]
is not guilty; but the court is not by the failure of proof on
that element deprived of judicial jurisdiction.").
2. Sufficiency of the Evidence
2. Sufficiency of the Evidence
With respect to Appellant's claim that there was
insufficient evidence to sustain his convictions, Appellant
"faces an uphill climb," United States v. Valle, 72 F.3d 210, 216
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(1st Cir. 1995). "If the evidence presented, taken in the light
most agreeable to the government, is adequate to permit a
rational jury to find each essential element of the offense of
conviction beyond a reasonable doubt, then [Appellant's] claim
fails." Id. (citations omitted). As the district court's
___
disposition of a motion for judgment of acquittal is subject to
de novo review, we, "like the trial court, must 'scrutinize the
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evidence in the light most compatible with the verdict, resolve
all credibility disputes in the verdict's favor, and then reach a
judgment whether a rational jury could find guilt beyond a
reasonable doubt.'" Id. (quoting United States v. Taylor, 54 F.3d
___ _____________ ______
967, 974 (1st Cir. 1995)).
After thoroughly reviewing the record6 and applying
these straightforward rules, we are convinced that a rational
____________________
6 We included in our review of the record the challenged tape
recordings because, as we explain below, we find that they were
properly admitted into evidence.
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jury could have found beyond a reasonable doubt that the
government had successfully proved each of the elements --
including, as we discuss more thoroughly below, the requisite
nexus to interstate commerce -- of both Appellant's attempt and
conspiracy convictions. Credibility determinations are uniquely
within the jury's province; and, we defer to their determinations
and the verdict if the evidence can support varying inferences.
See, e.g., United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir.
___ ____ _____________ ___________
1996); United States v. Gonz lez-Torres, 980 F.2d 788, 790 (1st
_____________ _______________
Cir. 1992). Here, the record clearly supports the verdict. That
the jury chose to believe the testimony presented by the
government, particularly that of Schaller, and disbelieve that
presented by the defense was well within its province.
As part of our sufficiency of the evidence review, we
must determine whether the requisite jurisdictional element is
met. Because it constitutes a jurisdictional predicate of the
substantive offense, this "jurisdictional element," like other
elements of the offense, must be proved to the jury beyond a
reasonable doubt. See Pappadopoulos, 64 F.3d at 524; Medeiros,
___ _____________ ________
897 F.2d at 15-17 (stating that the government need only show a
de minimis connection to interstate commerce in order to satisfy
__________
this element). Thus, in order for Appellant to be found guilty
under the federal arson statute, the government had to prove,
among other things, that the property was either "used in" or
"used in an activity affecting" interstate commerce. 18 U.S.C.
844(i). This involves identifying for what activity or purpose
-16-
the building is "used." Cf. Medeiros, 897 F.2d at 16 (focusing
__ ________
on the character of a fictitious building in determining whether
it was sufficiently connected to interstate commerce).
On appeal, Appellant argues that there is insufficient
evidence to prove that the Galleria II was a building used in or
affecting interstate commerce, because under L pez the evidence
_____
does not prove that the building "substantially affects"
interstate commerce. Because Appellant did not raise this L pez
_____
argument below, we review only for plain error the district
court's ruling on the sufficiency of the evidence regarding the
jurisdictional element. United States v. Olano, 507 U.S. 725,
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732 (1993) ("There must be an 'error' that is 'plain' and that
'affect[s] substantial rights.'"); United States v. Brand, 80
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F.3d 560, 567-68 (1st Cir. 1996) (discussing Olano).
_____
We find no plain error. At the time of the district
court's decision, L pez had not yet been decided and there was no
_____
reason for the district court to question the viability of
Russell or Medeiros. Under Medeiros, the government need only
_______ ________ ________
show, and the jury need only find, a de minimis connection to
__________
interstate commerce in order to sustain a conviction under 18
U.S.C. 844(i). Medeiros, 897 F.2d at 16-17. Here, the
________
government presented uncontested evidence that the object of the
attempted arsons was a "building" that was being "used" as a
commercial establishment, the Galleria II restaurant. The jury
was presented with evidence that Appellant and his partners
rented the building; that the building was supplied with natural
-17-
gas which traveled in interstate commerce; and that the
restaurant received food supplies for its operation which
traveled in interstate commerce. Indeed, Appellant conceded at
oral argument that the building was used as a commercial
establishment which received food supplies and natural gas for
its operation that travelled in interstate commerce. The
district court correctly instructed the jury that the government
had to prove beyond a reasonable doubt that the Galleria II was
property "used in or [sic] affected interstate or foreign
commerce."7 Viewing the evidence in the light most favorable to
the jury verdict, this evidence more than satisfies Medeiros' de
________ __
minimis requirement, and we therefore reject Appellant's
_______
insufficiency of the evidence argument.8 See, e.g., Ryan, 41
___ ____ ____
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7 The court further instructed the jury: "Interstate commerce
means commerce or business between any place in one state and
another place outside that state. It also means commerce between
places within the same state, but passing through any place
outside that state." Finally, the court stated: "Now, business-
related property, as opposed to residential property, is
considered used in or affecting interstate or foreign commerce
even if it has only a de minimis affect [sic] on interstate or
__________
foreign commerce. For example, business-related property is
considered used in or affecting interstate or foreign commerce if
food or drink which has moved in interstate or foreign commerce
is sold there, or if oil or gas which has moved in interstate or
foreign commerce is used in the building." Appellant did not
object to this instruction below or specifically challenge it on
appeal.
8 We need not address Appellant's contention that our holding in
Medeiros that the government need only show a de minimis
________ ___________
connection to interstate commerce is invalidated by L pez. We
_____
merely note that while the L pez decision did not address the
_____
amount of evidence required to prove an explicit jurisdictional
element of an offense, see Flaherty, 76 F.3d at 974, this does
___ ________
not necessarily mean that it is not controlling when determining
how significant the connection to interstate commerce must be in
order to satisfy the jurisdictional element, see Denalli, 73 F.3d
___ _______
-18-
F.3d at 364 (the de minimis standard "is easily met, even when
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the property is temporarily closed or vacant"); U.S. v. Menzer,
____ ______
29 F.3d 1223, 1229 (7th Cir.) (finding interstate commerce
connection where building used partly as commercial business
received natural gas and items purchased for resale that moved in
interstate commerce), cert. denied, 115 S. Ct. 515 (1994);
_____________
Medeiros, 897 F.2d at 16 (holding that rental property is per se
________ ______
property used in an activity affecting interstate commerce).
We only add this: Even assuming L pez requires more
_____
than a de minimis showing, we nonetheless find that the jury was
___________
presented with sufficient evidence to support its finding that
the Galleria II was a building either "used in" or "used in an
activity affecting" interstate commerce. Above, we found no
reason to think that L pez in any way undercut Russell's
_____ _______
conclusion that Congress has the authority to regulate arson of
business property.9 Similarly, we find no basis to conclude
that L pez in any way undercuts Russell's holding that "rental
_____ _______
property is unquestionably" an "activity" that affects interstate
commerce within the meaning of 18 U.S.C. 844(i). Russell, 471
_______
U.S. at 862 ("We need not rely on the connection between the
____________________
at 330-31 (finding arson of private residence did not
substantially affect interstate commerce); Pappadopoulos, 64 F.3d
_____________
at 527 (same).
9 See generally, Thomas J. Egan, Note, The Jurisdictional
___ _________
Element of 18 U.S.C. 844(i), A Federal Criminal Commerce Clause
Statute, 48 Wash. U.J. Urb. & Contemp. L. 183, 208 (1995) (noting
that "the controversy of 844(i) jurisdiction boils down to one
issue -- in addition to business property, what types of private
________________________________
property trigger federal jurisdiction in arson cases?") (emphasis
added).
-19-
market for residential units and the 'interstate movement of
people,' to recognize that the local rental of an apartment unit
is merely an element of a much broader commercial market in
rental properties." (quoting McLain v. Real Estate Board of New
______ ________________________
Orleans, 444 U.S. 232, 245 (1980))); cf. Sherlin, 67 F.3d at 1213
_______ __ _______
(finding that building used in educational business of college
was building used in an activity affecting interstate commerce).
We, thus, reaffirm our holding in Medeiros that rental property
________
is per se sufficiently connected to interstate commerce to confer
______
federal jurisdiction under Section 844(i) and to satisfy the
jurisdictional element. See Medeiros, 897 F.2d at 16. Because
___ ________
uncontested evidence was presented that, at the time of the
attempted fires, Appellant and his partner rented the building in
which the Galleria II was operated, the jury was presented with
sufficient evidence to find that the building was "used in an
activity affecting" interstate commerce within the meaning of 18
U.S.C. 844(i)'s second category.
Even assuming further that L pez undermines Russell and
_____ _______
Medeiros' holding regarding rental property, we would nonetheless
________
affirm the jury's finding. Because uncontested evidence was
presented below that the building was used as a commercial
establishment which received food supplies and natural gas for
its operation that travelled in interstate commerce, the Galleria
II also falls within 18 U.S.C. 844(i)'s "real or personal
property used in interstate . . . commerce." Because the
Galleria II was property used in interstate commerce, we need not
_______
-20-
address whether its activities "substantially affect[ed]"
interstate commerce. Cf. Robertson, ___ U.S. at ___, 115 S. Ct.
___ _________
at 1733.
In sum, because we are convinced that a rational jury
could have found beyond a reasonable doubt that the government
had successfully proved each of the elements, we affirm the
district court's denial of Appellant's motions for acquittal.
II. Appellant's Motion for Mistrial
II. Appellant's Motion for Mistrial
Appellant also appeals the denial of his motion for a
mistrial on the grounds that improper testimony was prejudicial.
We review the district court's decision for abuse of discretion.
United States v. Rivera-G mez, 67 F.3d 993, 998 (1st Cir. 1995)
_____________ ____________
("The trial judge is best situated to make a battlefield
assessment of the impact that a particular piece of improper
information may have on a jury."); United States v. Sep lveda, 15
_____________ _________
F.3d 1161, 1184 (1st Cir. 1993) ("Granting or denying a motion
for mistrial is a matter committed to the trial court's
discretion."), cert. denied, ___ U.S. ___, 114 S. Ct. 2714
_____________
(1994).
Appellant argues that the district court abused its
discretion when it denied his motion for a mistrial which he made
after Schaller testified that Appellant owned "a gay night club."
The trial transcript shows that Schaller testified on direct as
follows:
Q: Now, in the beginning of the restaurant
when it first opened, how often did you
speak with the defendant about the
Galleria II Restaurant?
-21-
A: On a daily basis.
Q: When you say "daily basis," was that on
the phone or in person?
A: Usually in person.
Q: Where was that?
A: At the club that he owns in Providence,
Gerardo's.
Q: What type of club is that?
A: A gay night club.
(Transcript, Vol. 4 at 98-99). At this point, Appellant objected
to the comment and moved for a mistrial on the grounds that the
"comment was completely gratuitous . . . [a]nd it was designed
specifically to, solely to[,] inflame the passions and prejudice
of this jury." (Transcript, Vol. 4 at 99).
Although the court seemed to agree with the government
that the information was offered as "strictly background
information," the court was nonetheless concerned about the
possibility that some jurors "may have a view that someone who
runs a gay bar may not be an upstanding citizen." (Transcript,
Vol. 4 at 99-100). The court decided to speak with the jurors
individually to ascertain (i) whether the juror was affected by
the testimony in any way; (ii) whether the juror would remain
impartial; and (iii) whether the juror would be able to render a
verdict based on the evidence and the law as instructed by the
court, without regard to the fact that Appellant operated a gay
night club. After every juror responded that he or she would not
be affected by the testimony in rendering his or her verdict,
-22-
(Transcript, Vol. 4 at 101-12), the court concluded, "All right.
I'm satisfied." (Transcript, Vol. 4 at 113). At this point, and
without further comment by counsel, testimony resumed. At the
end of trial, Appellant did not request any additional questions
be asked of the jurors or that any additional instructions be
given.
Based on the record, and under the guiding principle
that a district court may declare a mistrial only as a "last
resort," Sep lveda, 15 F.3d at 1184, we find that the district
_________
court's decision "was well within the broad range of its
discretion." Rivera-G mez, 67 F.3d at 999. The district court
____________
properly weighed the claim of impropriety and determined that it
was unfounded based on his voir dire of the jurors. United
______
States v. Hahn, 17 F.3d 502, 508 (1st Cir. 1994) ("A mistrial
______ ____
need not be allowed absent a clear showing of prejudice.").
Moreover, the district court acted swiftly by polling the jurors
immediately after the improper testimony.10 Sep lveda, 15 F.3d
_________
at 1185 ("Swiftness in judicial response is an important element
in alleviating prejudice once the jury has been exposed to
improper testimony."). The government argues that this polling
effectively provided a curative instruction that the jurors were
not to consider evidence that Appellant operated a gay night club
____________________
10 In deciding when to "instruct the jurors," the court noted
that "[t]he question is should we go on now, or should I [speak
to the jurors] at this point?" Appellant responded that "I think
I should know the answer. It makes sense to us, doesn't it?"
The court agreed and spoke individually with each of the jurors
at that time. (Transcript, 4-101).
-23-
in determining guilt or innocence. Given the questions asked and
the responses received, we agree that the district court
"efficaciously dispelled" any prejudicial effect of Schaller's
statement by its immediate and thorough response. See United
___ ______
States v. Bello-P rez, 977 F.2d 664, 672 (1st Cir. 1992)
______ ___________
(affirming denial of motion for mistrial where "[a]ny prejudicial
effect of the remark was efficaciously dispelled"). Finally,
given the overwhelming evidence of guilt presented during the
trial, the challenged testimony was innocuous. Bello-P rez, 977
___________
F.2d at 672 (denying mistrial where evidence of guilt was
overwhelming).
III. Appellant's Motion for a New Trial and Motion in Limine
III. Appellant's Motion for a New Trial and Motion in Limine
_________
Third, Appellant appeals the denial of his motion for a
new trial, arguing that the district court abused its discretion
in denying his motion in limine11 to exclude from evidence four
_________
tapes of recorded conversations between himself and Schaller in
February, March and May 1994. As the motion for a new trial is
not properly before us on appeal,12 we only address Appellant's
____________________
11 When the tapes were admitted into evidence, Appellant
reiterated his objections to the admissibility of the tapes,
which he first had raised in his motion in limine. See
__________ ___
Transcript, Vol. 5 at 48. Thus, we find the present claim
properly preserved for appeal.
12 On February 24, 1995, -- fourteen days after the guilty
verdict was rendered -- Appellant filed a motion for a new trial
and to extend time to file supporting memorandum. The district
court denied both motions on the grounds that they were not
timely filed pursuant to Fed. R. Crim. P. 33 (providing, inter
_____
alia, seven-day filing period from the guilty verdict, or such
____
time as the court may fix during the seven-day period, "unless
based on the ground of newly discovered evidence" in which event
it may be filed within two years after final judgment) and Fed.
-24-
motion in limine.13 Appellant argued below, as he does now,
_________
that the tapes should have been excluded in their entirety from
evidence because (i) their probative value was substantially
outweighed by their prejudicial effect under Fed. R. Evid. 403,
even after certain portions were redacted; (ii) they were
improperly admitted as evidence of "other crimes, wrongs, or
acts" under Fed. R. Evid. 404(b); and (iii) portions of them were
partially or wholly unintelligible which thereby rendered them
more misleading than helpful.14
Here, the court listened to the four tapes, reviewed
their respective transcripts, and heard arguments of counsel on
the admissibility of both the tapes and the transcripts. In
____________________
R. Crim. P. 45(b) (providing that the court may not extend the
time for any action under, inter alia, Fed. R. Crim. P. 33).
___________
Because Appellant's motion was not timely filed below, and
because his arguments on appeal do not involve "newly discovered
evidence," we do not address this motion. As we have held
before, Fed. R. Crim. P. 33 is jurisdictional and the district
court is without discretion to grant a motion for a new trial
that is not timely filed. See, e.g., United States v. Rogers, 41
___ ____ _____________ ______
F.3d 25, 34 (1st Cir. 1994); United States v. Lema, 909 F.2d
______________ ____
561, 565 (1st Cir. 1990).
13 We note that distinguishing these two motions is somewhat
meaningless -- as a practical matter -- within the context of
this case, given that the same abuse-of-discretion standard
applies to both motions and that Appellant's sole argument
regarding the motion for a new trial is that the court abused its
discretion in denying the motion in limine.
_________
14 In his motion in limine, Appellant also sought exclusion on
_________
the grounds that portions contained inadmissible hearsay under
Fed. R. Evid. 802. Appellant does not make this argument on
appeal. We assume the reason for this is that, as the record
shows, those portions to which Appellant objected on hearsay
grounds were excised from the recordings by agreement of the
parties and the court. In any event, as this argument is not
properly raised on appeal, we do not address it.
-25-
denying Appellant's motion in limine to exclude the tapes in
__________
their entirety under Fed. R. Evid. 403 and 404(b), the district
court found that they were admissible as probative of the issues
raised in the case and that they were "overall more relevant"
than prejudicial. (Transcript, Vol. 2 at 12-13). The district
court, however, did allow Appellant to make specific objections
of undue prejudice. (Transcript, Vol. 2 at 13-15). After
hearing argument from counsel, (Transcript, Vol. 4 at 4-47), the
district court agreed with most of Appellant's specific
objections and excluded those portions. With respect to
Appellant's audibility argument, the district court only found
the March 1, 1994, tape troubling in that it "seems . . . just
woefully inadequate for any reasonable person to understand."
(Transcript, Vol. 2-17). The district court's concern was that
the only way to understand the tape was to read the transcript
which resulted in the transcript -- and the Government's view --
being given too much weight. After considering alternatives and
hearing arguments from counsel, the district court decided to
admit the tape and allow the transcript because both parties had
stipulated to the accuracy of the transcript as a true rendition
of the recording. (Transcript, Vol. 2 at 4; Vol. 4 at 4).
Finally, the district court gave cautionary instructions to the
jury that the tapes were evidence but that the transcripts were
not. The district court also ruled that the transcripts would
-26-
not be permitted during deliberations.15 (Transcript, Vol. 4
at 4-5).
We turn to Appellant's arguments, reviewing the
district court's decision to admit or exclude evidence under Fed.
R. Evid. 403 and 404(b) for abuse of discretion. See, e.g.,
___ ____
United States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996);
_____________ ___________
United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996).
_____________ ___________
The same standard of review applies regarding the district
court's decision to admit the tapes over Appellant's audibility
argument. See United States v. Jadusingh, 12 F.3d 1162, 1167
___ _____________ _________
(1st Cir. 1994) ("As we have held on numerous occasions, a trial
judge's ruling on the admission of recordings is afforded 'broad
discretion,' even where portions of the taped conversation are
unintelligible.").
A. The Tapes' Relevancy
A. The Tapes' Relevancy
Evidence is excludable under Fed. R. Evid. 403 "if its
probative value is substantially outweighed by the danger of
unfair prejudice."16 After reviewing the transcript,17 we
____________________
15 We note that Appellant does not challenge on appeal the use
of the transcripts.
16 Fed. R. Evid. 403 provides in pertinent part:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
-27-
find no abuse of discretion in the district court's decision to
not exclude the tapes in their entirety. In support of his
argument, Appellant claims that (i) none of Appellant's
statements prove any element of the alleged crimes or show
consciousness of guilt; (ii) the recorded conversations took
place two years after the predicate offenses occurred; (iii) many
of Appellant's arguments were made in response to questions
instigated by the government witness; and, (iv) any relevant
conversations were intertwined with others that were not
relevant. We find none of these arguments persuasive.
As the district court found, the tapes included highly
probative evidence regarding Appellant's consciousness of guilt,
including admissions. The tapes were directly relevant to the
government's theory regarding both Appellant's involvement in the
attempted arson and the conspiracy. Indeed, we note that
Appellant's counsel conceded as much during the hearing on the
tapes' admissibility: "I concede, Judge, that there were parts
that, given the Government's position and its interpretation, are
relevant." (Transcript, Vol. 2 at 12).
For example, the February 24, 1994, tape includes a
conversation regarding the payment of Schaller's legal fees. Not
only did it corroborate Schaller's testimony that Appellant
assisted in the payment of Schaller's legal fees, this
____________________
17 Because the parties stipulated to the accuracy of the
transcripts as true recordings of the tapes, we do not need to
actually listen to the tapes. In any event, we note that they
were not made part of the district court record nor included as
part of the record on appeal.
-28-
conversation included evidence from which the jury could draw an
inference "that this money is being paid because these gentlemen
were in on the deal together." (Transcript, Vol. 4 at 9). The
March 1, 1994, tape includes an admission by Appellant that he
threw matches to light the fire during the first attempt: "You
weren't there when I threw the [expletive] matches the first
time." The March 4, 1994, tape includes an adoptive admission by
Appellant regarding his attempts to burn the restaurant during a
conversation about whether Appellant had told anyone about those
efforts. While Appellant denies telling anybody else about his
efforts, he responds to Schaller's questions directly without
ever disputing the veracity of what Schaller's questions imply --
that Appellant "tried to burn it." The May 25, 1994, tape
provides evidence of the conspiracy between Schaller and
Appellant. The conversation demonstrates that, although they
were confused as to their recollection of what they believed to
be their respective roles, they clearly had conspired to burn the
restaurant. This sampling of each of the four tapes clearly
shows that, contrary to Appellant's claims, the recordings
include statements by Appellant that are directly probative of
both attempts and the conspiracy.
Appellant also points to the fact that the recorded
conversations occurred two years after the alleged offenses,
arguing that the recordings are neither closely intertwined with
the charged offenses nor helpful in establishing Appellant's
intent to commit the crimes charged. Appellant cites to three
-29-
cases addressing the admissibility of evidence under Fed. R.
Evid. 404(b). See United States v. Huff, 959 F.2d 731, 736 (8th
___ _____________ ____
Cir. 1992); United States v. Brookins, 919 F.2d 281, 286 (5th
______________ ________
Cir. 1990); United States v. Hodges, 770 F.2d 1475, 1480 n.4 (9th
_____________ ______
Cir. 1985). We agree with these cases that proximity in time is
a factor to be considered in determining relevancy under Fed. R.
Evid. 404(b) of "other crimes, wrongs, or acts." See, e.g.,
___ ____
United States v. Fields, 871 F.2d 188, 197 (1st Cir. 1989)
______________ ______
("Probative value must be considered in light of the remoteness
in time of the other act and the degree of the resemblance to the
crime charged."); United States v. Currier, 836 F.2d 11, 17 (1st
_____________ _______
Cir. 1987) (noting that the prior bad acts were both close in
time and in nature to the crime charged).18 In addition,
Appellant also points out that the tapes here are distinguishable
from those admitted in Currier, based on the fact that the
_______
recorded conversations in that case occurred immediately prior to
and after the crime charged and were, thus, found to "help[]
establish appellant's intent to commit the crime charged." Id.
___
Because the conversations here occurred two years after the
predicate offenses, Appellant contends that the tapes cannot be
said to be so "closely intertwined" with the predicate offenses
____________________
18 The defendant in Currier objected to the tape at trial on the
_______
basis of Fed. R. Evid. 403. Reasoning that "because the same
revelations of 'skullduggery' that formed the basis for his
assertion that the tape was unfairly prejudicial could also have
formed the basis for an additional assertion that the tape was
offered only to show his bad character," we held that defendant's
Rule 403 objection was sufficient to preserve a claim of error
under Rule 404(b), noting that the two "usually . . . go hand in
glove." Currier, 836 F.2d at 17.
_______
-30-
so as to help establish Appellant's intent to commit the crimes
charged.
We are unswayed by Appellant's arguments. Here, as we
discuss below, no evidence of prior bad acts was admitted in this
case; and, because Appellant has not cited to any cases holding
that proximity in time is a prerequisite for determining
relevance under Fed. R. Evid. 403, and because we have not found
any, we are unconvinced that the timing of the conversations is
of any consequence or otherwise undermines their strong
relevance. See, e.g., United States v. Perkins, 926 F.2d 1271,
___ ____ _____________ _______
1279-80 (1st Cir. 1991) (finding no error in admission of post-
conspiracy statements made to a government informant where court
found statements were an admission corroborating trial testimony
and reflected complicity and consciousness of guilt). Even
assuming, arguendo, that proximity must be considered in
________
determining relevance, we nonetheless find that even though the
conversations occur two years after the attempt and conspiracy,
they are "closely intertwined with the charged offense[s] . . .
[and] [] provid[e] . . . significant contextual material" for
the jury. Currier, 836 F.2d at 17 (citations omitted). As
_______
discussed above, while they do not necessarily show Appellant's
intent to commit the attempted arson or to enter into a
______
conspiracy, they do show Appellant's consciousness of guilt and
complicity as well as the existence of a conspiracy. See
___
Perkins, 926 F.2d at 1279-80.
_______
-31-
While not all evidence with probative value is
admissible, we do not find that its value is "substantially
outweighed by the danger of unfair prejudice." Fed. R. Evid.
403. In reviewing the balancing undertaken by the district
court, we give great deference to the district court's judgment,
and "[o]nly in exceptional circumstances will we reverse the
exercise of a district court's informed discretion vis- -vis the
relative weighing of probative value and unfairly prejudicial
effect." Currier, 836 F.2d at 18 (quoting United States v.
_______ ______________
Griffin, 818 F.2d 97, 101-02 (1st Cir.), cert. denied, 484 U.S.
_______ ____________
844 (1987)). Based on our review of the record, we do not find
that the probative value of the tapes -- as edited19 -- was
outweighed by unfairly prejudicial evidence. See, e.g., United
___ ____ ______
States v. Mu oz, 36 F.3d 1229, 1233 (1st Cir. 1994) (noting that
______ _____
the question under Rule 403 is one of unfair prejudice, not
prejudice alone); Currier, 836 F.2d at 18 ("Unfairly prejudicial
_______
evidence is evidence . . . that 'triggers [the] mainsprings of
human action [in such a way as to] cause the jury to base its
decision on something other than the established proposition in
the case.'") (quoting 1 Weinstein's Evidence 403[03], 36-39
(1986)). Neither the fact that many of Appellant's remarks were
made in response to questions or comments by the government
witness, nor that relevant conversations were intertwined with
non-relevant ones, persuades us to reach a different conclusion.
____________________
19 As mentioned above, after hearing arguments from counsel, the
district court agreed to excise most of the portions regarding
which Appellant raised specific objections.
-32-
Even the fact that the recordings reveal that Appellant had
initially wanted to hire "a guy from organized crime so to speak"
to burn the restaurant, (Transcript, Vol. 4 at 32), or that
Appellant tells Schaller what to say about pouring the gasoline,
(Transcript, Vol. 4 at 44), does not make them unfairly
prejudicial. Finally, we do not find that any "exceptional
circumstances"20 exist which warrant reversal of the district
court's rulings.21
B. The Tapes' Prior Bad Act Evidence
B. The Tapes' Prior Bad Act Evidence
We find Appellant's reliance on Fed. R. Evid. 404(b) to
be irrelevant on appeal.22 While the transcript of the pre-
trial hearing regarding the admissibility of the tapes shows that
there were references to previous fires which arguably fall
____________________
20 We note that Appellant does not specify on appeal that any
"exceptional circumstances" exist.
21 Because we find that the district court did not abuse its
discretion, we need not decide whether the admission of the tape
recordings -- even if an error -- was nonetheless harmless.
22 Fed. R. Evid. 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident,
provided that upon request by the
accused, the prosecution in a criminal
case shall provide reasonable notice in
advance of trial, or during trial if the
court excuses pretrial notice on good
cause shown, of the general nature of any
such evidence it intends to introduce at
trial.
-33-
within Fed. R. Evid. 404(b), the record shows that these
references were excised by agreement of the parties.
(Transcript, Vol. 4 at 21). Not only does Appellant not specify
on appeal what "other crimes, wrongs, or acts" under Fed. R.
Evid. 404(b) were erroneously admitted into evidence, we find no
mention of any in the portions that were admitted into evidence.
Accordingly, we do not address this argument further.
C. The Tapes' Audibility
C. The Tapes' Audibility
Lastly, as to Appellant's audibility argument, in
exercising its broad discretion in ruling on the admissibility of
tape recordings, even where portions are unintelligible, Font-
_____
Ram rez, 944 F.2d at 47, the district court "must decide whether
_______
'the inaudible parts are so substantial as to make the rest more
misleading than helpful.'" Id. (citations omitted) (quoting
___
Gorin v. United States, 313 F.2d 641, 652 (1st Cir.), cert.
_____ _____________ _____
denied, 374 U.S. 829 (1963)). While the district court found
______
that there were segments of poor audio and static, the district
court nonetheless decided to admit them. The district court was
swayed by the fact that the parties stipulated to the accuracy of
the transcript as a true recording of the tapes.23 We are
similarly swayed and find no abuse of the court's broad
discretion, even as to the March 1, 1994, tape about which the
district court was most concerned. Based on our review of the
____________________
23 Inaudible segments were indicated in the transcript with
parentheticals, such as "static" or "unintelligible."
-34-
transcript,24 we disagree with Appellant's claim that the
inaudible parts, when taken as a whole, were so substantial as to
make the rest more misleading than helpful, because the
transcript clearly evidences that sufficient portions of the
tapes, including statements by both Schaller and Appellant, are
audible. As discussed earlier, these segments are relevant
because they include, inter alia, admissions by Appellant,
___________
tending to show consciousness of guilt and corroborate trial
testimony. Furthermore, the district court gave a cautionary
instruction to the jury that not only informed them that the
tapes, but not the transcript, were evidence, but also that the
jurors had to draw their own conclusions regarding their content
and probative value based on what they themselves heard on the
tapes.25 United States v. Carbone, 798 F.2d 21, 26 (1st Cir.
_____________ _______
1986) (finding that the judge's handling of the transcript was in
accord with the law where the record shows that the judge
carefully instructed the jurors that the tapes, not the
transcripts, were evidence and that any differences between the
____________________
24 See n.17, supra. In ruling on Appellant's audibility
___ _____
argument, we add only this: By not including the tapes in the
record on appeal, Appellant forfeited the right to their review.
25 We also note that as to the one disputed sentence in the
transcript (whether Appellant said "I am aware of that" or "I am
not aware of that", (Transcript, Vol. 4 at 23)), the court
allowed two versions of the page to be included in the
transcript, informed the jury that the parties were in dispute as
to what Appellant actually said on that page (without
specifically identifying the disputed sentence), and gave another
cautionary instruction that they were to make their own finding
based on what they heard on the tapes. The jury heard that
segment twice, each time while reading along with the respective
versions. (Transcript, Vol. 5 at 54-59).
-35-
two must be resolved in favor of what was heard on the
recording). Based on the record, and particularly in light of
Appellant's stipulation to the accuracy of the transcript as a
true recording of the tapes, we find no abuse of discretion by
the district court in admitting the tapes over Appellant's
audibility objection.
IV. Appellant's Sentence
IV. Appellant's Sentence
Finally, Appellant appeals his sentence imposed by the
district court pursuant to the federal arson guidelines.26 See
___
U.S.S.G. 2K1.4(a)(1)-(4). The arson guidelines provide, in
pertinent part:
(a) Base Offense Level (Apply the Greatest):
(1) 24, if the offense (A) created a
substantial risk of death or serious
bodily injury to any person other than a
participant in the offense, and that risk
was created knowingly; . . .
(2) 20, if the offense (A) created a
substantial risk of death or serious
bodily injury to any person other than a
participant in the offense; . . .
(3) 2 plus the offense level from
2F1.1 (Fraud and Deceit) if the offense
was committed in connection with a scheme
to defraud; or
____________________
26 All citations to the Sentencing Guidelines are to the
November 1994 version, which is the version applied by the
district court, as it was the one in effect at the time of
Appellant's May 25, 1995, sentencing. See United States v.
___ _____________
Aymelek, 926 F.2d 64, 66 n.1 (1st Cir. 1991) (noting that
_______
district courts should apply the version of the Guidelines in
effect at the time of sentencing, barring ex post facto
problems). Here, the applicable guidelines had not changed after
Appellant committed the instant offenses.
-36-
(4) 2 plus the offense level from
2B1.3 (Property Damage or Destruction).
U.S.S.G. 2K1.4; see U.S.S.G. App. C, Amendment 330
___
(restructuring the arson guidelines). New language in the
Commentary, Application Note 2, provides that "[c]reating a
substantial risk of death or serious bodily injury includes
creating that risk to firefighters and other emergency and law
enforcement personnel who respond to or investigate an offense."
See, e.g., United States v. Turner, 995 F.2d 1357, 1365 (6th Cir.
___ ____ _____________ ______
1993) (finding that endangering firefighters is an appropriate
factor); United States v. Grimes, 967 F.2d 1468, 1471 (10th
_____________ ______
Cir.), cert. denied, 506 U.S. 927 (1992) (noting that several
____________
other circuits had come to the same conclusion).
Appellant challenges the district court's sentence on
three separate grounds. We address them in turn, reviewing
findings of fact for clear error, mindful that they need only be
supported by a preponderance of the evidence, and reviewing
questions of law de novo, including the scope and applicability
_______
of a relevant guideline. See 18 U.S.C. 3742(e); United States
___ _____________
v. Mart nez-Mart nez, 69 F.3d 1215, 1224 (1st Cir. 1995); United
_________________ ______
States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994).
______ ________
A. The "Fraud or Deceit" Base Offense Level
A. The "Fraud or Deceit" Base Offense Level
First, Appellant contends that the district court
should have applied U.S.S.G. 2K1.4(a)(3), which requires
computation of the base offense level as 2 plus the base offense
level for "Fraud and Deceit." Appellant argues that the
overwhelming evidence at trial established that his primary
-37-
purpose was to defraud the insurance company and that Appellant,
while creating some risk of death or serious bodily injury by
pouring gasoline, did not knowingly create a substantial risk.
While the record does indicate that Appellant participated in a
scheme to defraud the insurance company, we conclude that the
district court properly chose subparagraph 2K1.4(a)(1) based on
its specific finding -- which, as we discuss below, was not
clearly erroneous -- that Appellant knowingly created a
substantial risk of death or serious bodily injury to persons
other than the participants in the attempted arson. See Grimes,
___ ______
967 F.2d at 1472 (holding that district court properly rejected
application of fraud guideline, 2K1.4(a)(3), and properly
applied 2K1.4(a)(2) in case involving defendant's effort to
obtain insurance through arson where defendant created
substantial risk of injury or death). The arson guideline
instructs that the base offense level is determined by selecting
the highest level from among four choices. Section 2K1.4(a)(1)-
(4); United States v. Mizrachi, 48 F.3d 651, 655 (2d Cir. 1995).
______________ ________
The Government contends that applying 2K1.4(a)(3) would only
yield a base offense level of 19, less than that under
2K1.4(a)(1), which is 24. Appellant does not dispute this
calculation or otherwise present his own 2K1.4(a)(3)
calculation, nor was there any discussion of this issue during
the sentencing hearing. Assuming, without deciding, that
calculation under 2K1.4(a)(3) would have yielded only a base
offense level of 19, we conclude that the district court
-38-
correctly applied 2K1.4(a)(1) because it yielded the highest
base offense level based on its finding that Appellant knowingly
created a substantial risk of bodily injury. Cf. Mizrachi, 48
__ ________
F.3d at 656 (affirming district court's application of
2K1.4(a)(3) in sentencing defendant for arson, mail fraud, and
money laundering offenses where facts yielded an initial base
offense level of 35).
B. Knowing Creation of a Substantial Risk
B. Knowing Creation of a Substantial Risk
Second, Appellant argues that the district court's
finding that Appellant knowingly created a substantial risk of
death or serious bodily injury to any person other than a
participant in the offense is not supported by a preponderance of
the evidence. Whether a defendant knowingly created a
substantial risk of death or serious bodily injury within the
meaning of section 2K1.4 of the Guidelines raises an issue of
first impression in that this court has not previously determined
what level of knowledge is required under 2K1.4(a)(1)(A). At
the outset, we note that this determination involves a two-step
inquiry. A court must first ask whether the defendant's actions
created a substantial risk of death or serious bodily injury and
then decide whether the defendant acted knowingly in creating
that risk. See United States v. Karlic, 997 F.2d 564, 568-69
___ _____________ ______
(9th Cir. 1993) (stating that the first inquiry is objective and
the second is subjective).
1. The Substantial Risk . . .
1. The Substantial Risk . . .
-39-
Leaving aside the question of knowledge for the moment,
we conclude first that the district court did not clearly err in
finding that Appellant created a substantial risk of death or
serious bodily injury to any person other than a participant in
the offense. The district court based its finding primarily on
the PSR, which indicated, inter alia, that the presence of
___________
gasoline created the potential for a fire or explosion.
According to the PSR, a fuel air explosion could have occurred
had "a heat source been introduced within a specific danger range
between the place where the gasoline was poured and anyplace
within the building where the odor of gasoline was detected,"
(PSR, at 22), and that "because the gasoline was poured in a
confined area which contained electrical outlets, an electrical
spark or other heat source could have ignited the vapors in the
confined area at any time," (PSR, at 23). Although the evidence
indicates that Appellant only planned to ignite the fire after
the restaurant closed, the district court concluded that the
potential for a fuel air explosion or for a fire to start
accidentally created a substantial risk of death or serious
bodily injury to the occupants of the building at the time of the
pouring of the gasoline in the attic as well as to firefighters
and others who would respond to the incident.
We find no clear error in this finding of substantial
risk to patrons and firefighters. It was properly based on both
the PSR and the sentencing judge's common sense understanding --
which Appellant conceded during the sentencing hearing was
-40-
appropriate -- of the risks associated with pouring an accelerant
to start a fire in an occupied building where there was the
potential for a fuel air explosion to occur or for a fire to
start accidentally. See Medeiros, 897 F.2d at 20 (relying on
___ ________
common sense in finding under earlier arson guidelines that
defendant conspired "to cause the kind of fire that recklessly
would endanger others."). As the district court correctly noted
in response to Appellant's insistence that there was no risk
created because no fire actually occurred, (Sentencing
Transcript, pages 19-22), the Guidelines speak of "risk." "The
fact that fortuitously no one was injured and extensive damage
did not result [because no fire or explosion actually occurred]
does not further [A]ppellant's contention that he did not . . .
create a substantial risk of death or serious bodily injury."
United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir. 1993).
_____________ _________
Furthermore, in light of the federal arson guidelines'
commentary, see U.S.S.G. 2K1.4, Application Note 2, we find no
___
clear error in the district court's finding of substantial risk
given its finding that firefighters "could have been blown to
smithereens" had a spark ignited the gasoline vapors (Sentencing
Transcript, at 20). See, e.g., Turner, 995 F.2d at 1365; Grimes,
___ ____ ______ ______
967 F.2d at 1471. While "all fires present some danger to
firefighters required to extinguish it, . . . [w]here a
spectacular fire is planned near an occupied building, a finding
of reckless endangerment to firefighters would be based on a
common sense understanding of the risks of putting out a major
-41-
fire when rescue attempts are likely to be necessary." Medeiros,
________
897 F.2d at 20. Similarly, here, although there is no evidence
that Appellant planned a "spectacular fire," the sentencing
judge's finding of substantial risk in this case was based on his
-- and, again, our -- common sense understanding of the risks
associated with using an accelerant in an occupied building to
start a fire where there was the potential for a fuel air
explosion to occur or for a fire to start accidentally.27
2. . . . Knowingly Created
2. . . . Knowingly Created
Next, we must decide whether the district court clearly
erred when it found that Appellant knowingly created this
_________
substantial risk. While we review the court's factual finding
for clear error, the definition of a Guidelines term is a
question of law which we review de novo. Mart nez-Mart nez, 69
_______ _________________
F.3d at 1224.
Looking first to the statute, we note that the two
highest base offense levels in the federal arson guidelines,
2K1.4(a)(1) and 2K1.4(a)(2), contain almost identical
language. The latter, for which there is a base offense level of
20, applies to the creation of a substantial risk of death or
serious bodily injury. The former, for which there is a base
offense level of 24, applies to the knowing creation of such a
risk. This structure clearly suggests that there must be a
____________________
27 In Medeiros, we affirmed the district court's finding of
________
"reckless endangerment" under the earlier arson guidelines. We
consider the facts supporting such a finding to be relevant to a
finding of "substantial risk" under the amended guidelines.
-42-
meaningful distinction between the two sections. See Honeycutt,
___ _________
8 F.3d at 787 (noting that "[c]learly it was intended for there
to be a distinction between the two sections").28 Given the
structure of the arson guidelines, we conclude that
2K1.4(a)(1)(A) requires that the district court make a specific
finding that the defendant "knowingly" created a substantial risk
of death or serious bodily injury, as opposed to merely finding
that defendant recklessly (or negligently) created such a risk
which would more appropriately trigger application of
2K1.4(a)(1)(B). Apart from this rather straightforward
observation, no guidance is gleaned from the Sentencing
Guidelines, as "knowingly" is not defined. In addition, the
usual rule of giving an undefined statutory term its plain
meaning provides little direction given that "'[k]nowledge' means
different things in different contexts." United States v.
______________
Spinney, 65 F.3d 231, 236 (1st Cir. 1995).
_______
Our own precedent is of little help because, while this
court has addressed the application of the federal arson
guidelines, see Medeiros, 897 F.2d at 18 (applying former
___ ________
____________________
28 In discussing 2K1.4's application note about firefighters,
the Honeycutt court concluded that knowledge alone that
_________
firefighters will respond to a fire "cannot suffice to satisfy
2K1.4(a)(1)." The court reasoned that if that knowledge were
alone sufficient then 2K1.4(a)(2) (creation of a substantial
risk of death or serious bodily injury) would be subsumed by
2K1.4(a)(1) (knowing creation of that risk). As the court noted,
"fires are inherently dangerous, and the knowledge that
firefighters and emergency personnel respond to virtually all
fires can ordinarily be presumed." Honeycutt, 8 F.3d at 787.
_________
"The arsonist must know that a specific fire for some reason
poses a substantial risk of death or serious bodily injury to
firefighters and emergency personnel who may respond." Id.
___
-43-
U.S.S.G. 2K1.4(b)(2) and affirming district court's finding
that defendant "recklessly endangered the safety of another");
see also, United States v. Flowers, 995 F.2d 315, 316 (1st Cir.
________ _____________ _______
1993) (involving but not discussing application of 2K1.4);
United States v. Johnson, 952 F.2d 565, 585 (1st Cir. 1991)
______________ _______
(same), it has never addressed what level of knowledge is
required under the highest offense level where the substantial
risk was created knowingly by the defendant.
Turning to our fellow circuits, we note that the Ninth
Circuit, and later the Eleventh Circuit, adopted the definition
of "knowingly" as used in the Model Penal Code (the "MPC") when
applying 2K1.4. See Honeycutt, 8 F.3d at 787; United States v.
___ _________ _____________
Karlic, 997 F.2d 564, 569 (9th Cir. 1993). Drawing from the
______
MPC's definition,29 the Ninth Circuit held that "a defendant
can be found to have 'knowingly' created a substantial risk of
death or serious bodily injury under 2K1.4 only if the
defendant was aware that a substantial risk of death or serious
____________________
29 The Model Penal Code's definition of "knowingly" provides
that:
A person acts knowingly with respect to a
material element of an offense when: . .
.
(ii) if the element involves a result of
his conduct, he is aware that it is
practically certain that his conduct will
cause such a result.
Model Penal Code 2.02(2)(b) (1985). The Model Penal Code also
________________
states that "[w]hen knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established
if a person is aware of a high probability of its existence,
unless he actually believes it does not exist." Model Penal Code
________________
2.02(7) (1985).
-44-
bodily injury was 'practically certain' to result from the
criminal act." Karlic, 997 F.2d at 569; accord, Honeycutt, 8
______ ______ _________
F.3d at 787. We note that other courts have neither explicitly
defined "knowingly" nor adopted the MPC's definition, apparently
finding it unnecessary where the district court could clearly
conclude from the facts whether the defendant knew his actions
created a substantial risk of death or serious bodily injury.
For example, in United States v. Markum, 4 F.3d 891 (10th Cir.
_____________ ______
1993), the court found that a fire set with gasoline during
business hours which put firefighters in severe jeopardy because
of the ferocity of the fire and the risk of explosion constituted
"circumstances [which] more than justified the district court's
finding that [defendant], as a co-conspirator, knowingly created
a substantial risk of death or serious bodily injury." Id. at
___
896-97. Similarly, in United States v. Turner, 995 F.2d 1357
______________ ______
(6th Cir.), cert. denied, 114 S. Ct. 282 (1993), the district
_____________
court concluded that defendant's actions could fit under either
2K1.4(a)(1)(A) or (B). As to the defendant's knowledge, the
court found that defendant knowingly created the substantial risk
given that people in the residence adjacent to the burning
building were likely to be asleep and windy conditions would
cause the fire to spread quickly. Id. at 1365. The court in
___
Turner also found that defendant "should have known" that he was
______
placing firefighters at a substantial risk by committing the
arson in weather conditions that would make extinguishing the
fire extremely difficult. Id.
___
-45-
As this relevant case law provides at least two
distinct approaches, we find it helpful when considering the
question of "knowledge" to recall that "the length of the
hypothetical knowledge continuum" is marked by "constructive
knowledge" at one end and "actual knowledge" at the other with
various "gradations," such as "notice of likelihood" in the
"poorly charted area that stretches between the poles." Spinney,
_______
65 F.3d at 236-37 (discussing the continuum in the context of the
"shared knowledge" requirement in prosecution of aiding and
abetting armed robbery). In terms of this continuum, "practical
certainty" would seem most akin to "actual knowledge." Id.
___
(noting that "[a]ctual knowledge, after all, is certain
knowledge"). We are inclined to conclude that a showing of
knowledge anywhere along this continuum satisfies application of
2K1.4(a)(1)(A).30 This approach would be consistent both
with the guidelines' mandate that a meaningful distinction be
made between the two highest base offense levels as well as with
the "common sense" approach we endorsed in Medeiros. See
________ ___
Medeiros, 897 F.2d at 20. That said, however, at this juncture
________
we need not definitively resolve what level of knowledge, in
addition to "actual knowledge," is required. Even assuming
____________________
30 "Constructive knowledge is the law's way of recognizing that,
given an awareness of certain subsidiary facts, a person is quite
likely to know, can be expected to know, or at least should have
known that a further fact existed." Spinney, 65 F.3d at 236. In
_______
contrast, "[a]ctual knowledge, as the term implies, reduces the
need for inference; it suggests the presence of particular
evidence which, if credited, establishes conclusively that the
person in question knew of the existence of the fact in
question." Id.
___
-46-
without deciding that, for 2K1.4(a)(1)(A) to apply, Appellant
had to be "aware that a substantial risk of death or serious
bodily injury was 'practically certain' to result from the
criminal act," Karlic, 997 F.2d at 569, we reject Appellant's
______
contention that the district court's findings are clearly
erroneous.
On appeal, Appellant argues that the district court
clearly erred in finding that he knowingly created the
substantial risk, because "[it] made no finding that a
substantial risk of death or serious bodily injury was
'practically certain' to result from his [attempted arson]."
Appellant contends that the district court's findings that the
restaurant was occupied at the time the gasoline was poured and
that the vapors could have been accidentally ignited is
insufficient for the application of 2K1.4(a)(1)(A), because the
record does not show by a preponderance of the evidence that
Appellant was "practically certain" that an accidental cause
could have started the fire.
Giving due deference to the court's application of the
guidelines to the facts, we conclude that the district court did
not clearly err in finding that Appellant "knew that . . . there
was a substantial risk of death or serious bodily injury"
(Sentencing Transcript at 23). In arriving at our conclusion, we
note that facts contained in a presentence report ordinarily are
considered reliable evidence for sentencing purposes. See United
___ ______
States v. Morillo, 8 F.3d 870, 872 (1st Cir. 1993). Indeed,
______ _______
-47-
district courts possess "broad discretion to determine what data
is, or is not, sufficiently dependable to be used in imposing
sentence." United States v. Tardiff, 969 F.2d 1283, 1287 (1st
_____________ _______
Cir. 1992). This is particularly true where, as here, Appellant
offered no evidence to suggest an inaccuracy in the presentence
report's facts. Id., 8 F.3d at 873 (collecting cases).
___
The record shows that, at the time of the first
attempt,31 Appellant knew that at least two other employees,
including Schaller (who at that time was not a participant in the
offense), were in the restaurant. As the court in Honeycutt
_________
noted, "[i]t is difficult to imagine a clearer illustration of
the knowing creation of a substantial risk of death or serious
bodily injury." Honeycutt, 8 F.3d at 787 (affirming application
_________
of 2K1.4(a)(1)(A) where defendant threw a Molotov cocktail at a
structure that he admitted he knew was occupied). In terms of
our continuum, this strikes us as constituting "actual knowledge"
and/or "practical certainty."
At the time of the second attempt, the record shows
that gasoline was poured, hours before the intended ignition, in
a confined area atop the Galleria II at a time when both patrons
and employees were inside. Appellant knew gasoline was a highly
flammable liquid and he arranged for it to be poured for the
specific intent of lighting a fire after business hours. In
response to Appellant's "practical certainty" argument, the
____________________
31 We address the first count (the attempt to start a fire in
the attic with paper) even though Appellant's brief only focuses
on the second count (involving the gasoline).
-48-
district court found that "the fact that [Appellant] . . . wanted
to [ignite] the fire outside of business hours, suggests . . .
that he knew of the risk" to people inside the building and to
those who would respond to the fire. (Sentencing Transcript at
18). Contrary to Appellant's contentions, these findings are
sufficient for the application of the highest base offense level.
While Appellant may not have been aware that it was "practically
certain" that a fire could ignite accidentally or that the
____________
restaurant and any occupants could be blown to "smithereens,"
(Sentencing Transcript at 20), we remind Appellant -- as the
district court did more than once -- that the guidelines call for
the knowing creation of a substantial risk. Here, a
____
preponderance of the evidence supports the finding that Appellant
was aware that a substantial risk of death or serious bodily
injury was "practically certain" to result from the use of a
highly flammable accelerant for purposes of starting a fire.
Appellant presented no evidence to rebut the preponderance of the
evidence presented on this point. Furthermore, we find
irrelevant whether or not Appellant was "practically certain"
that an accidental ignition would occur given that the record
__________
supports a finding that he was "practically certain" that he was
creating a substantial risk of death or serious bodily injury.
____
Finally, the district court again correctly rejected Appellant's
argument that he did not knowingly create a risk because no fire
or explosion actually occurred. See Honeycutt, 8 F.3d at 787
___ _________
("[t]he fact that fortuitously no one was injured and extensive
-49-
damage did not result does not further [A]ppellant's contention
that he did not knowingly create a substantial risk."). At issue
is Appellant's state of mind, not the actual results of his
actions. Id.; cf. Medeiros, 897 F.2d at 20 (finding that the
___ ___ ________
defendant "specifically intended to cause the kind of fire that
recklessly would endanger others").
C. Two-Level Enhancement for Leadership Role
C. Two-Level Enhancement for Leadership Role
Finally, Appellant appeals the two-level enhancement
which the district court imposed for his leadership role in the
offense. See U.S.S.G. 3B1.1(c). As we have said before, "role
___
in the offense" determinations are fact intensive and we normally
review for clear error. See United States v. Tejada-Beltr n, 50
___ _____________ ______________
F.3d 105, 111 (1st Cir. 1995); United States v. Schultz, 970 F.2d
_____________ _______
960, 963-64 (1st Cir. 1992), cert. denied, 506 U.S. 1069 (1993)
____________
(citations omitted). Appellant argues that he and Schaller were,
at best, "equals" and nothing more than "partners in crime."
Under U.S.S.G. 3B1.1(c), a two-level enhancement is
warranted if the sentencing court determines that the criminal
enterprise involved at least two participants, and the defendant
exercised control over, or was otherwise responsible for
organizing the activities of, at least one other individual in
committing the crime. See, e.g., Morillo, 8 F.3d at 872; United
___ ____ _______ ______
States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991). For
______ _______
purposes of determining the overall number of participants, the
defendant himself may be counted as one participant; "[b]ut, he
must exercise control over at least one other participant to
-50-
warrant an upward adjustment." Morillo, 8 F.3d at 872 n.13. In
_______
determining whether a defendant is an organizer or leader, the
Sentencing Guidelines direct judges' attention to seven factors,
including "the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share
of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority
exercised over others." U.S.S.G. 3B1.1, comment.; see Tejada-
___ _______
Beltr n, 50 F.3d at 111-13 ("This list is intended to be
_______
representative rather than exhaustive."). Finally, the
government must bear the burden of proving that an upward role-
in-the-offense adjustment is warranted. Morillo, 8 F.3d at 872.
_______
Here, it is undisputed that Appellant and Schaller
participated in the attempted arson of the Galleria II. Contrary
to Appellant's contention that he and Schaller were mere
"equals," evidence was submitted at trial that it was Appellant's
idea to burn the Galleria II; that Appellant devised the time and
method of committing the offense; that Schaller was persuaded
and, ultimately, recruited by Appellant after Appellant failed to
hire someone else to commit the offense and after his
unsuccessful attempt to start a fire in the attic; and that
Schaller poured the gasoline at Appellant's request and informed
Appellant when he was finished. Contrary to Appellant's
argument, these factual findings satisfy the requirements for
-51-
applying 3B1.1(c). We are unpersuaded by Appellant's argument
that the fact that Appellant asked or persuaded Schaller to pour
gasoline does not show supervision over him. While it may not
show supervision, it certainly shows -- at a minimum --
Appellant's exercise of decision making authority, his
recruitment of accomplices, and the greater degree of his
participation in planning and organizing the two arson attempts.
Thus, finding no clear error in the district court's
determination of Appellant's role,32 we affirm the district
court's two-level enhancement. United States v. Garc a, 954 F.2d
_____________ ______
12, 18 (1st Cir. 1992) (noting that, absent a mistake of law,
sentencing court's role-in-the-offense determination is reviewed
only for clear error).
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the district court's
judgment and sentence is, in all respects,
Affirmed.
Affirmed
________
____________________
32 Appellant also contends that "[t]he finding that [Appellant]
stood to gain financially from the fire is also erroneous." The
government argued that Appellant -- and not Schaller, who had no
ownership interest in the restaurant or the building -- stood to
gain financially from a fire at the Galeria II and, thus, had a
"claimed right to a larger share of the fruits of the crime."
U.S.S.G. 3B1.1, comment. We need not address this argument as
the district court neither made, nor relied on, this "finding"
when it concluded that adjustment under U.S.S.G. 3B1.1 was
justified. See Sentencing Transcript, page 28. Even assuming
___
arguendo that such a "finding" were clearly erroneous, we would
________
nonetheless affirm the district court's adjustment based on the
evidence of Appellant's role in the offense.
-52-
