USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 96-2090
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM P. PITRONE,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
_________________________
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
_________________________
Peter
B.
Krupp, with whom Lurie & Krupp LLP was on brief, for
appellant.
Nadine
Pellegrini
,
Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief, for
appellee.
_________________________
May 22, 1997
_________________________
SELYA, Circuit Judge.
examine a matter of first impression: the degree of scienter
needed for a felony conviction under 16 U.S.C. S 707(b) (1994), a
This harlequinade requires us to
part of the Migratory Bird Treaty Act (MBTA). Detecting no
reversible error in the district court's rejection of the
defendant's
proffered jury instruction or in any other respect, we
affirm the judgment of conviction.
I. THE STATUTORY SCHEME
In
1916,
the
United States and Great Britain (acting for
Canada) negotiated a treaty to protect migratory birds. See
Convention for the Protection of Migratory Birds in the United
States and Canada, Aug. 16, 1916, U.S.-Can., 39 Stat. 1702; see
also S. Rep. No. 99-445 (1986), reprinted in 1986 U.S.C.C.A.N.
6113, 6114 (reviewing the MBTA's historical antecedents). The
treaty provides for the safeguarding of migratory birds whose
pilgrimages traverse international borders. To effectuate this
commitment,
1
Congress enacted the MBTA in 1918. The United States
Department
of the Interior is charged with administering the MBTA,
see
16
U.S.C.
S
701
(1994), and the Secretary has promulgated a web
of
regulations. The statute and the regulations offer substantial
shelter to migratory birds within the United States.
This
case
pirouettes
around a provision of the MBTA which
1The MBTA also is in service to other treaty obligations.
See, e.g, Convention for the Protection of Migratory Birds and
Birds
in
Danger
of
Extinction and Their Environment, March 4, 1972,
U.S.-Japan, 25 U.S.T. 3329; Convention for the Protection of
Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mexico, 56
Stat. 1347.
2
criminalizes the taking and selling of migratory birds:
Whoever, in violation of this subchapter,
shall knowingly
(1) take by any manner whatsoever any
migratory bird with intent to sell, offer to
sell, barter or offer to barter such bird, or
(2)
sell,
offer for sale, barter or offer
to barter, any migratory bird shall be guilty
of a felony and shall be [punished as
provided].
16
U.S.C.
S
707(b) (1994). Under this proviso, it is unlawful for
a taxidermist to receive money or compensation in exchange for a
migratory
bird
other
than from a person who originally provided the
bird and requested the taxidermy services. See 50 C.F.R. S
21.24(c)(1), (2) (1996). In other words, a taxidermist may
receive,
transport, possess, and mount migratory birds for another
person, but he may not sell any migratory birds (mounted or not)
which he has taken out of the wild.
II. BACKGROUND
Following accepted practice, we sketch the facts in the
light most favorable to the jury verdict, consistent with record
support.
See
United
States v. Staula, 80 F.3d 596, 599 (1st Cir.),
cert. denied, 117 S. Ct. 156 (1996); United States v. Echeverri,
982 F.2d 675, 676 (1st Cir. 1993).
Defendant-appellant William P. Pitrone is a taxidermist
by
trade
and
a huntsman by choice. Pitrone frequented sportsmen's
shows at which he offered for sale mounted game birds. In early
1993, a browser, Chris Giglio, spotted a protected migratory bird
(a
Common
Eider)
among
the birds that Pitrone displayed for sale at
3
a
show
held
in
Boston.
When Giglio began questioning Pitrone about
the Eider, Pitrone immediately inquired whether Giglio was "a
warden" and, upon receiving an assurance that Giglio was not,
freely discussed his operation and produced a business card.
Giglio suspected that Pitrone was violating federal law and
informed
the
Interior Department's Fish and Wildlife Service (FWS)
of his suspicions.
At the behest of the FWS, Giglio contacted Pitrone by
telephone and arranged to visit him at his home in Medford,
Massachusetts. Once inside, Giglio observed that Pitrone
maintained a large inventory of mounted waterfowl. Pitrone
declared that all the mounts were for sale. When Giglio reported
this information to the FWS, the agents smelled smoke. They
outfitted Giglio with cash and a clandestine body recorder, and
sent
him
back
to
Pitrone's residence in search of fire. During the
ensuing
conversation,
Pitrone volunteered that he had recently been
to
Alaska
to
hunt
Harlequin ducks (a protected species of migratory
bird)
and
claimed to have bagged 42 of them. He also said that he
sold
standing mounts for $50 apiece, flying mounts for $60 apiece,
and Harlequin mounts for $75 apiece.
On
May
13,
1993,
Giglio
returned to Pitrone's abode, this
time accompanied by an undercover FWS agent. During this meeting
(which
Giglio
surreptitiously recorded), Pitrone crowed that he had
sold the 42 Harlequin mounts for $75 each, and he described in
colorful
language the enthusiasm with which decoy carvers clamored
to purchase them. When asked why Harlequins cost more than other
4
mounts, Pitrone replied that the price differential reflected the
additional cost he had incurred in travelling to Alaska to hunt
them.
By the fall of 1995, the FWS had its ducks in a row and
a
federal
grand
jury
returned an eight-count indictment. At trial,
the
prosecution
relied,
i
nter alia, on the testimony of Giglio, FWS
agent Robert Garabedian, and four of Pitrone's customers. One
customer, James Olenick, told Pitrone in advance of the Alaska
hunting
trip
that he would be interested in purchasing a Harlequin
duck if Pitrone bagged one. Olenick subsequently bought such a
duck from Pitrone (a transaction that formed the basis for the
count of conviction). After the FWS investigation surfaced,
Pitrone contacted Olenick and suggested that, if approached, he
should tell the FWS agents that the duck was merely a "leftover,"
implying that Pitrone gave it to him as a gift. James Boone,
another
customer, stated that he had purchased mounts from Pitrone
and had provided him with a "wish list" of mounts he sought to
purchase. A third customer, Donald Todd, testified that Pitrone
contacted him after a sale of two mounts and requested that Todd,
if questioned by the FWS, tell the agents that his payment to
Pitrone had not been for merchandise received but for services
rendered.
A
fourth
customer, George Anzivino, said Pitrone bragged
that he had sold all the Harlequin ducks he had shot in Alaska,
that
the
hunt
had
cost
him $2400, and that he had recouped the cost
by selling the birds. Later, Pitrone admonished Anzivino not to
mention their conversation to anyone.
5
The trial lasted for six days. In the end, the jury
acquitted
Pitrone on seven counts, but found him guilty on count 2
(the knowing sale of a Harlequin duck). Following the imposition
of sentence, Pitrone sought refuge in this court.
III. ANALYSIS
On appeal, Pitrone grouses about two rulings. One
complaint implicates the jury instructions and the other centers
around the admission of evidence. We discuss these remonstrances
separately.
A. The Jury Instructions.
If a party asserts that an error infected the
instructions given to a trial jury, a reviewing court must
determine if the instructions "adequately illuminate[d] the law
applicable to the controlling issues in the case without unduly
complicating matters or misleading the jury." United States v.
Destefano
,
59
F.3d
1,
3
(1st Cir. 1995). When, as now, the alleged
error involves the interpretation of the elements of a statutory
offense,
it
poses
a
question of law and sparks plenary review. See
United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997).
In this instance, Judge Gertner instructed the jurors
that, in order to convict on count 2, they must find that Pitrone
acted knowingly. This meant, the judge explained, that "he was
conscious
and aware of his actions, realized what he was doing and
what was happening around him, and did not act because of
ignorance, mistake, or accident." The government, she added, did
not need "to prove that the defendant knew that his actions were
6
unlawful,"
but
he
"must
know within the meaning of the statute that
t
that it did not require the government to prove that th
he was selling a bird." Pitrone requested a more lenien
instruction and objected to the instruction actually given on the
ground e
defendant knew his actions contravened federal law.
On appeal, Pitrone widens the scope of his barrage.
While he renews his claim that the government should have been
required to prove beyond a reasonable doubt that he knew his
conduct was unlawful (and, therefore, that the jury should have
been so instructed), he goes on to raise a new and entirely
different point: that the instruction afforded the jury was
defective because it did not require the government to prove that
he knew he was selling a migratory bird. We address the second
claim first.
Pitrone cannot duck one basic fact: he did not object
below to the omission of a specific statement that the government
must
prove
that
he
knew
he was selling a migratory bird (as opposed
to a bird, simpliciter). For all intents and purposes, that ends
the matter. We have been steadfast in treating as forfeit
objections
to a judge's charge that might have been, but were not,
raised
below
in the approved manner.2 See, e.g., United States v.
2A party who objects to jury instructions in a criminal case
must follow a regime that is delineated in Fed. R. Crim. P. 30.
The rule provides in pertinent part:
No party may assign as error any portion of
the charge or omission therefrom unless that
party objects thereto before the jury retires
to consider its verdict, stating distinctly
the
matter
to which that party objects and the
7
Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987); United States v.
Coady, 809 F.2d 119, 123 (1st Cir. 1987); cf. Putnam Resources v.
Pateman, 958 F.2d 448, 456 (1st Cir. 1992) (holding, under
substantially identical civil counterpart, that "[s]ilence after
instructions . . . typically constitutes a waiver of any
objections").
To be sure, we still retain the power to grant relief
under the plain error doctrine, notwithstanding that Pitrone did
not
preserve
this claim of error. Fed. R. Crim. P. 52(b). Still,
a party who asks an appellate tribunal to correct an error not
preserved at the trial level must demonstrate "(1) `error,' (2)
that is `plain,' and (3) that `affects substantial rights.'"
Johnson v. United States, ___ S. Ct. ___, ___ (U.S. May 12, 1997)
[No. 96-203, slip op. at 7] (quoting United States v. Olano, 507
U.S.
725,
732
(1993)).
Even then, the appellate court may exercise
its discretion to correct a forfeited error only if the error
seriously impairs the integrity and basic fairness of the
proceedings. See id. Given these criteria, it is apparent that
"the
plain
error hurdle is high." United States v. Hunnewell, 891
F.2d 955, 956 (1st Cir. 1989). Pitrone cannot surmount it here.
For present purposes, we need look only to the last
element of the test. In the district court, there was never any
issue about whether a Harlequin duck was a migratory bird (it is)
or whether Pitrone, a nimrod of note, knew as much (it strains
credulity
to
suggest
he
did not). In this regard, the instructions
grounds of the objection.
8
that he proposed are telling; he beseeched the lower court to
charge
the
jury
"that
the government must prove beyond a reasonable
doubt: first, that Mr. Pitrone actually knew that he was selling
the migratory birds, as opposed to giving away the birds and
charging
only
for
his
mounting services (emphasis supplied)." This
proposed instruction assumes that Pitrone knew he was selling
migratory
birds,
as
demonstrated by the repeated use of the article
"the." And, moreover, Pitrone has limned no plausible basis for
believing that he lacked such knowledge.
Where,
as
here,
a
defendant criticizes a jury instruction
on a ground not raised below, and does so on the basis of an
alleged error induced at least in part by his implied concessions
before the district court, it will be infrequent that he can
satisfy the fourth furcula of the plain error test. In this
respect,
the
case at hand is not a rara avis. Thus, the omission,
if error at all a matter on which we do not opine did not
"seriously affect the fundamental fairness" of Pitrone's trial,
Griffin, 818 F.2d at 100, and, thus, did not constitute plain
error. See Johnson, ___ S. Ct. at ___ [slip op. at 11]
(suggesting, in words appropriate here, that "it would be the
reversal of a conviction such as this" which would run afoul of
fundamental fairness).
We turn next to the compass of the term "knowingly" as
that
word
is
used in MBTA S 707(b). The statute proscribes, inter
alia, "knowingly" taking migratory birds with intent to sell them
and
"knowingly" selling such birds. Since the meaning of the word
9
"knowingly"
is neither precisely defined in the statute itself nor
immediately obvious in the statutory context, we resort to the
legislative
history.
See
United States v. Ven-Fuel, Inc., 758 F.2d
741, 757-58 (1st Cir. 1985).
For
most
of
its
existence, the MBTA contained no scienter
requirement whatever; its felony provision, like its misdemeanor
provision,
16 U.S.C. S 707(a), imposed strict liability. See Pub.
L. 86-732, 40 Stat. 756 (1960) (amended by Pub. L. 99-645, 100
Stat. 3590 (1986)). But in 1985, the Sixth Circuit held that the
felony provision section 707(b) ran afoul of the Due Process
Clause
on
this
account.
See United States v. Wulff, 758 F.2d 1121,
1125
(6th
Cir.
1985).
The following year, Congress amended section
707(b)
to
meet the Wulff court's objection by including an element
of scienter, that is, by adding the modifier "knowingly." See S.
Rep. 99-445, supra, 1986 U.S.C.C.A.N. at 6128. Congress clearly
indicated that, by inserting this word, it sought only to require
proof that "the defendant knew (1) that his actions constituted a
taking, sale, barter, or offer to sell or barter, as the case may
be,
and
(2)
that
the
item so taken, sold, or bartered was a bird or
portion thereof." Id. At the same time, Congress warned that:
"It
is
not
intended that proof be required that the defendant knew
the taking, sale, barter or offer was a violation of the
subchapter,
nor that he know the particular bird was listed in the
various international treaties implemented by this Act." Id.
Against
this
backdrop, Pitrone's assertion that the word
"knowingly" modifies the phrase "in violation of this subchapter"
10
and, thus, requires proof of specific intent in order to convict,
is unconvincing. When it is necessary to go beyond the text in
construing
criminal statutes, meaning ordinarily should be derived
by "draw[ing] upon context, including the statute's purpose and
various background legal principles, to determine which states of
mind accompany which particular elements of the offense." United
States v. Gendron, 18 F.3d 955, 958 (1st Cir. 1993). The
appellant's
interpretatio
n of the MBTA flouts this precept: it not
only involves a forced reading of the text but also flatly
contradicts Congress's stated purpose. We are, therefore,
disinclined to swallow it.
We find encouragement for this disinclination in United
States
v.
Flores
,
753
F.2d 1499 (9th Cir. 1985), a case which posed
an analogous interpretive problem. Determining that the word
"knowingly" in 18 U.S.C. S 922(e) modified the phrase describing
the
prohibited
act
delivering or causing to be delivered firearms
to any common carrier without written notice the Ninth Circuit
read the language naturally and held that the government need not
prove a specific intent to violate the statute. See id. at 1505.
In reaching this conclusion, the court stressed "the absence of
words such as `intent' and `willfully,' which traditionally
accompany specific intent crimes" and the lack of any other
indication
that
Congress
purposed to require an element of specific
intent.
Id.
The
instant case is a supercharged version of Flores;
in drafting the amendment to section 707(b), Congress not only
omitted language indicating that it specifically intended to make
11
specific intent an element of the offense but also stated
positively that it did not intend to do so.
Pitrone tries to make an end run around the lessons
taught by the legislative history, citing a plethora of cases
headed
by
Rat
zlaf v. United States, 510 U.S. 135 (1994). But this
argument overlooks (or, at least, fails to acknowledge) that the
element
of
willful intent and the element of scienter are birds of
a very different feather: the cases which the appellant includes
in
this
string
citation
stand for the proposition that knowledge of
the
unlawfulness of one's conduct is required when the statutorily
prohibited
behavior
includes an element of willful intent. See id.
at 143-49; United States v. Jain, 93 F.3d 436, 439-41 (8th Cir.
1996);
United
States v. Sanchez-Corcino, 85 F.3d 549, 552-54 (11th
Cir. 1996); United States v. Curran, 20 F.3d 560, 566-71 (3d Cir.
1994).
Here, the proposition is beside the point. The
applicable statute, section 707(b), requires the government to
prove
a
knowing act, but it does not require proof of willfulness.
That makes a world of difference. "Knowingly" has a meaning
distinct
from
"willfully" in the lexicon of statutory construction.
See United States v. Hayden, 64 F.3d 126, 129-30 (3d Cir. 1995).
Thus, courts consistently have rejected arguments as we do here
which posit that the term "knowingly," standing alone, requires
the prosecution to show that the defendant knew his behavior was
unlawful, instead interpreting "knowingly" as we do here to
require no more than that "the defendant know he was engaging in
12
the prohibited conduct." Id. at 130 (collecting cases);
United States Sherbondy, 865 F.2d 996, 1001-03 (9th Cir. 1988)
(explaining
see also
v.
that "knowingly" does not ordinarily include a
requirement
that the defendant have had knowledge of the law). By
contrast, "willfully" a word which is conspicuously absent from
section
707(b) sometimes has been construed to require a showing
that the defendant knew his behavior transgressed the law. See
Ratzlaf, 510 U.S. at 141-43. We decline either to read into a
statute a word that Congress purposely omitted, or, on our own
initiative,
to
rewrite
Congress's language by ascribing to one word
a meaning traditionally reserved for a different word.
Pitrone
also
floats a bareboned constitutional argument.
Citing
Wulff
,
758
F.2d
at 1124-25, he contends that section 707(b),
read as we propose to read it, remains subject to the same
constitutional
infirmity
which prompted the Sixth Circuit to strike
down the earlier (unamended) version. This argument was not
advanced below, and for that reason, it will not fly here.3 See
Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline
Transp.
Co.,
953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is
settled
in
this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal.").
3
In
all
events, the argument has little substance. The Wulff
court declared that, in order for section 707(b) to pass
constitutional muster, "Congress must require the prosecution to
prove
the
defendant acted with some degree of scienter." 758 F.2d
at 1125. But Congress repaired this defect, and there is nothing
in the Constitution which requires the government to prove, in a
case like this, that the defendant knew his conduct was unlawful.
13
Finally, the appellant hawks the importance of the
Supreme
Court's
decision
in Liparota v. United States, 471 U.S. 419
(1985).
There, the Court held that, when prosecuting a person for
violation of the statute governing food stamp fraud (which
prohibits the "knowing" acquisition of food stamps in an
unauthorized manner, 7 U.S.C. S 2024(b)(1)), the government must
prove the defendant knew that his conduct was unauthorized. 481
U.S.
at
433.
We think Liparota is distinguishable. First, unlike
in this case, the legislative history of the provision before the
Liparota Court shed no light on what Congress meant by the term
"knowing violation." See id. at 424-25. Second, the Food Stamp
Act covers a variegated array of conduct undertaken by literally
millions of people, many of whom are unencumbered by a working
knowledge
of
the regulatory labyrinth. These facts, together with
the sheer volume of food stamp transactions which occur, create a
high
probability
of
unauthorized, yet innocent, transfers. See id.
at 426. Thus, the Liparota Court sought to prevent the
criminalization of a wide range of innocent behavior. See id.
In sharp contrast, the felony provision of the MBTA
prohibits
conduct that occurs on a much smaller scale and which is
much more likely to be committed by individuals familiar with
existing protections for migratory birds (e.g., hunters,
taxidermists, scientists, or artisans whose trades require
knowledge
of
birds'
habits and attributes). Consequently, applying
the
scienter
requirement
in the manner described in the legislative
history of section 707(b) does not pose the same type of threat
14
that prompted the Liparota Court to condition a conviction under
the
Food
Stamp Act upon proof that the defendant knew his behavior
was unauthorized by law.
Broadly speaking, it is within the discretion of the
legislature to define the elements of statutory offenses. See
United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). In
drafting
the
MBTA
and
thereafter in amending it, Congress carefully
defined the elements of the offense created under section 707(b).
In
doing
so,
it
left
no
room for ignorance of the law as a defense.
Thus, we are constrained to give section 707(b) its natural
reading, under which the word "knowingly" applies to the putative
offender's actions rather than to the legality of those actions.
This
reading
comports with the plain meaning of the MBTA, with the
usual canons of statutory construction, and with Congress's
revealed intent. Since the district court's instructions to the
jury
followed
this
path,
we cannot honor the appellant's assignment
of error.
B. The Evidence.
Pitrone also protests the district court's admission of
two
types
of
evidence, namely, (1) evidence anent his hunting trip
to Alaska, and (2) evidence anent his sales (and intended future
sales)
of
birds. In each instance, he maintains that the evidence
ought
to
have
been
barred as impermissible character evidence.4 We
4
Pitrone
premises
this exhortation on Fed. R. Evid. 404(b) and
403. Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
15
review rulings admitting or excluding evidence for abuse of
discretion. See United States v. Rivera-Gomez, 67 F.3d 993, 997
(1st Cir. 1995). When Rule 403 balancing is in issue, we grant
especially
wide
latitude
to the district court's informed judgment.
See id.
Here,
both
aspects
of
the evidentiary squabble originally
arose
in
pretrial
proceedings. Pitrone filed a motion in limine to
exclude evidence relating to his journey to Alaska and his boast
that he killed more than 40 Harlequin ducks on that trip (selling
the skins for $50 each and the mounts for $75 each). He filed a
separate motion to exclude evidence of sales of birds other than
those
which
were the subject of specific counts in the indictment.
The district court denied both motions, concluding that the
challenged
proffers not only provided direct evidence of the crime
charged
but
also
furnished relevant extrinsic evidence illustrating
Pitrone's intent to hunt and sell the Harlequins, as well as the
existence of a plan to do so. The prosecution subsequently
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 . . . .
In turn, Rule 403 provides:
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.
16
introduced
the
evidence
at trial and argued its significance to the
ssuming,
wit
were properly preserved,
jury.
A hout deciding, that Pitrone's objections to
the
evidence
cf. Conway v. Electro Switch
Corp., 825 F.2d 593, 596 n.1 (1st Cir. 1987), his claim of error
nonetheless is unavailing. In the count of conviction, the
government charged Pitrone with the knowing sale of a Harlequin
duck. Testimony regarding his Alaskan sojourn and his subsequent
sales
of
Harlequin
skins
and mounts comprises direct evidence which
helps to establish the crime charged. Because the evidence is
directly probative of the crime, Pitrone's contention that it is
impermissible
"other act" evidence is well wide of the mark. See,
e.g., United States v. Hadfield, 918 F.2d 987, 994-95 (1st Cir.
1990).
The
evidence
of
past
(and future intended) sales of birds
consisting largely of statements made by Pitrone during the
course
of
commercial
transactions is plainly relevant to illumine
Pitrone's intent even though these sales are not themselves the
basis of the charges preferred against him. Since Rule 404(b)
evidence appropriately can be admitted for such a purpose, see,
e.g., United States v. Bank of New Eng., 821 F.2d 844, 858 (1st
Cir. 1987), the appellant's claim that it is impermissible
character evidence founders.5
5If more were needed and we doubt that it is we note in
passing that the evidence of past sales was imbricated with the
charged crime and helped to put that crime into context. On that
basis, too, the evidence was relevant. See United States v.
DiSanto, 86 F.3d 1238, 1252-53 (1st Cir. 1996), cert. denied, 117
17
Moving to Rule 403, we do not find that either
evidence is prejudicial if the truth be
evidentiary line carried with it an unacceptable risk of improper
prejudice.
Virtually
all
told,
that
is
almost
always why the proponent seeks to introduce it
but it is only unfair prejudice against which the law protects.
See
Rivera-Go
mez, 67 F.3d at 997 (collecting cases); United States
v. Rodriguez-Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989).
Evidence should function to "help the jury reconstruct earlier
events and then apportion guilt or responsibility as the law may
require" and "Rule 403 exists to facilitate that process, not
impede it." Rivera-Gomez, 67 F.3d at 998. Because the judicial
officer who presides at a trial has a unique perspective which
enables her to make assessments of this kind knowledgeably, "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." Freeman v. Package Mach. Co.,
865 F.2d 1331, 1340 (1st Cir. 1988).
In
the
case
at bar, these tenets augur favorably for the
lower
court's rulings. Under the terms of the MBTA, Pitrone could
not knowingly sell a Harlequin duck. He could, however, sell his
services as a taxidermist. Evidence of the sale prices of
Harlequin duck skins and mounts, as contrasted with the prices of
other
bird
mounts
sold
by him, laid the foundation for a permissive
S. Ct. 1109 (1997); United States v. Rodriguez-Estrada, 877 F.2d
153, 155 (1st Cir. 1989).
18
inference that the higher price for a Harlequin duck reflected an
actual charge for the bird, above and beyond a reasonable charge
for taxidermy services. Evidence of the trip to Alaska helped to
explain the reason for the price differential and to show
opportunity. The evidence of Pitrone's statements provided the
jury with valuable insights into Pitrone's motives. All in all,
the challenged evidence possessed considerable probative value.
The opposite pan of the scale is nearly empty. For one
thing, the appellant has not credibly shown how the evidence
threatened
to trigger any of the dangers that Rule 403 bids courts
to
monitor.
For
another
thing, there is nothing in the record that
leads
us
to
believe
that
the jury, which acquitted Pitrone on seven
other counts, was improperly influenced by this evidence. Given
the
easily
discernible asymmetry substantial probative value and
negligible risk of unfairly prejudicial effects we descry no
abuse of discretion in the district court's admission of the
evidence.
IV. CONCLUSION
We
need
go
no further. From aught that appears, Pitrone
was tried fairly and convicted lawfully in a proceeding untainted
by reversible error. No more is exigible.
Affirmed.
19
