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.

____________

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.

___

"Morillo, 8 F.3d at 872".

_______

at 872" to

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1584

UNITED STATES,

Appellee,

v.

GERARD DISANTO,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

_____________________

Paul J. Haley, with whom Law Office of Paul J. Haley, was on

_____________
___________________________
brief for appellant.

John M. Griffin, Assistant United States Attorney, with whom

_______________
Donald K. Stern,
________________

United

States

Attorney,

appellee.

____________________

June 14, 1996

____________________

was

on

brief

for

TORRUELLA,
TORRUELLA,

Appellant

Gerard

Chief Judge.
Chief Judge
____________

DiSanto

attempted arson in violation

After

nine-day

("Appellant")

was

of 18 U.S.C.

844(i),

trial,

convicted

for

the federal

arson statute, which makes it a federal crime to destroy by means

of fire

property

used in

commerce; and for conspiracy

U.S.C.

371.

or

affecting interstate

or

to commit arson in violation

Appellant appeals

his conviction as

foreign

of 18

well as his

sentence on a

affirm

the

number of grounds.

district

court's

For the

judgment

following reasons, we

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

_____________

Cir. 1992),

cert. denied,
____________

v. Ortiz, 966 F.2d 707, 711

_____

506 U.S.

1063

(1993), the

(1st

evidence

presented during the nine-day trial tended to show the following.

The Galleria

serving

Italian

Massachusetts

(the

partners: Appellant,

II was a family-style

food

and

pizza,

"restaurant"),

Robert Ashness

which

restaurant and pub

located

in

was

owned

("Ashness")

Westport,

by

three

and Dr.

Louis

Aguiar

("Dr. Aguiar").

The restaurant was located in a building

which

Appellant and Ashness leased

L pes

("L pes").

things,

for

The

a monthly

lease

from Dr. Aguiar and Fernando

agreement

rent of

$3,600

provided, among

and an

option

other

for the

restaurant

owners to purchase L pes' share in the property.

restaurant

received natural

gas

-2-

and food

supplies that

The

moved

through interstate commerce.

summer

II's

Although very successful during the

months of 1991, its first year of operation, the Galleria

business

proved

to

be

considerably after the summer.

there

were significant

septic

systems and

Aguiar

deteriorated

required

seasonal

the relationship

improvements:

business

slowed

In addition to the slow business,

problems with

over who

and

was

the building's

between Appellant

responsible to

pay

water and

and Dr.

for the

the restaurant, as tenant, or Dr. Aguiar

and L pes, as landlords.

Among

the

("Schaller") served as

Galleria

II's

employees,

chef and as kitchen

Randy

Schaller

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

and

had longstanding

considered him

business relationships

a friend.

Beginning in

Appellant began discussing with

the restaurant.

systems,

above

that

Appellant

the renovations

by

the second floor as

would provide funds for

of 1991,

Schaller the need for renovating

an outside

top of

the insurance proceeds

the renovations.

be

sales during the

told Schaller that

burning the

and septic

roof-top deck

the purpose of increasing liquor

summer season.

finance

the fall

addition to correcting the water

Appellant proposed

installed for

peak

In

with Appellant

he wanted to

the restaurant

from the fire

As part of his

plan,

Appellant increased the Galleria II's existing insurance coverage

(building,

$90,000

contents,

of

business

and

premises

liability)

interruption

insurance,

by

purchasing

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

attempting

or about

to

hire

February

someone

19, 1992,

else

to

after unsuccessfully

burn

the

top

of

the

restaurant, Appellant attempted to set a fire himself by igniting

stack of

papers in

the attic

of the

however, before

wood frame.

Both Schaller and McKenna, who had been drawn to the

because

of

the

open attic

door,

discovered

Appellant

over the

involved.

During

Appellant

asked Schaller if he would help by pouring gasoline on

attic

of papers

the exposed

standing

the

burning stack

fully ignite

The fire

burned out,

attic

it could

restaurant.

the days following

rafters as

part of

return later to ignite the gasoline.

and refused

his first failed

plan whereby

to get

attempt,

Appellant would

After repeatedly declining

to get involved, Schaller finally agreed to assist Appellant.

Shortly

poured

after

gasoline, as

attic rafters and

noon

on

Appellant had

February

23, 1992,

Schaller

requested, onto

the exposed

insulation and informed Appellant

that he had

done so.

About mid-afternoon,

restaurant.

Westport

Fire

restaurant

patrons

At

and

evacuating

left the

approximately 4:00 p.m. that same afternoon, the

Department

that there

was

employees at

the

Appellant and Schaller

building,

responded

to a

complaint

a strong

odor

of gas,

the restaurant

the

-4-

from

which

had detected.

firefighters

discovered

the

both

After

the

gasoline-soaked

charring

boards and

insulation

as well

on the attic floor and ceiling.

as evidence

of

According to the fire

department, the charring was unrelated to the much larger area of

the

attic

that

was

saturated with

gasoline,

representing

separate, previous attempt to start a fire.

A few

he

had

poured

enforcement

informed

days later, Schaller admitted to the police that

the

gasoline.

officials

him of

that he

Schaller's

Although

would

Appellant

fire

confession,

Schaller when

Appellant never

Schaller, and Schaller worked at the restaurant until it

On December 6,

1993, Schaller entered

federal indictment charging him

Pursuant to his plea

enforcement

a plea

As part

law

they

fired

closed.

of guilty to

the

with the second attempted arson.

agreement, he agreed to cooperate

officials.

told

of that

with law

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.

and conspiracy to commit arson under 18 U.S.C.

trial,

Appellant

evidence the

Schaller,

filed

four recorded

which

included

motion

in limine
__________

371.

Prior to

to exclude

conversations between

incriminating

844(i)

from

Appellant and

statements

made

by

____________________

The conversations

and May 25 of 1994.

occurred on February 24, March

1, March 4,

-5-

Appellant.

After

a hearing,

the court

denied the

motion and

admitted the tapes after certain portions were excised.

During a

witnesses

pursuant to

nine-day trial on

testified for

his plea

the

prosecution

recover

insurance

(including

agreement), the prosecution

theory that Appellant attempted

to

the merits, in

proceeds

which nine

Schaller,

presented its

to burn the restaurant in

to

finance

renovations

order

and

improvements

of

the

restaurant.

witnesses, including McKenna.

The

defense

called

three

Among other matters, the witnesses

testified that Schaller's reputation for truthfulness was "zero;"

that

result

the

business interruption

insurance

was

purchased as

of significant storms which had caused the Galleria II to

close; that, after

February 22,

restaurant;

leaving with Schaller during the afternoon of

Appellant

and

that

had no

intention

Appellant was

evening of February 22, planning their

with

of returning

to

the

McKenna during

the

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

the

"gay night club"

was prejudicial.

Both at

close of the government's

the evidence, Appellant

case-in-chief and at the close

moved for judgment

ground that the evidence was

Galleria II

was a building

of all

of acquittal on

the

insufficient to establish that

the

affecting interstate commerce.

district court denied both motions.

-6-

The

Based

on the

convicted

Appellant on

attempted

arson

subsequently

denied.

and

moved

foregoing and

other evidence,

February

10, 1995,

on

conspiracy

to commit

arson.

for a

new

trial which

the jury

both counts

the

of

Appellant

district court

On May 25, 1995, the district court sentenced Appellant

to a term of

seventy-eight (78) months' imprisonment, imposed

fine of $12,500, restitution to the Westport Police Department in

the

amount of $386, and ordered supervised release for three (3)

years.

We

Appellant

appeals both his conviction

have jurisdiction pursuant to

Rule 4(b) of

and his sentence.

Federal Rules of

Appellate Procedure.

DISCUSSION
DISCUSSION
__________

I.
I.

Appellant's Motions for Judgment of Acquittal

Appellant's Motions for Judgment of Acquittal

Appellant claims reversible error

motions

for judgment

Below, Appellant

R. Crim.

evidence

commerce

under

to

prove

the

the

federal

requisite

arson

The federal arson statute provides:

Whoever maliciously
or

attempts

means

of

building,

to

fire

damages or destroys,

damage or
or

an

vehicle,

or

personal property used

foreign

commerce

or

affecting interstate

destroy,

explosive,
other

by
any

real

or

in interstate

or

in

any

activity

or foreign commerce

. . . [is guilty of a crime].

that there

nexus

statute.2

____________________

P. 29.

acquittal on sufficiency

grounds, which included the argument

insufficient

interstate

See Fed.
___

based his motions for

of the evidence

was

of acquittal.

in the denial of his

to

On

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'

Clause3 to

regulate interstate

that,

light

in

of

L pez,

authority under

commerce.

the

federal

Appellant

arson

the Commerce

now argues

statute

is

_____

unconstitutional and that, accordingly, the district court lacked

subject

matter

jurisdiction.

argues that under

In

the

alternative,

L pez there is insufficient

_____

Appellant

evidence to prove

that the Galleria II was a building that "substantially affected"

interstate commerce.

Specifically,

simple state arson

Appellant

case which

now

claims

Congress has no

that

this

power under

is a

the

Commerce Clause to federalize and thereby undercut Massachusetts'

power to prosecute Appellant

Gen. Laws

Ann. ch.

266,

Appellant insists that

Court's earlier

under its own arson statute,

1.

In

support

L pez effectively
_____

decision in Russell
_______

of this

overruled the

v. United States,
_____________

Mass.

argument,

Supreme

471 U.S.

858, 859

(1985), which concluded that the

federal arson statute

expresses Congressional

intent to exercise its

the

Id. (holding
__

Commerce Clause.

that

full power under

rental property

was

property used in an activity affecting interstate commerce within

the

meaning

of

the

federal

arson

statute).

Consequently,

____________________

Under

regulate

the

Commerce

Commerce with

States, and

Clause, Congress
foreign Nations,

with the Indian Tribes."

cl. 3.

-8-

is

empowered

and among

"[t]o

the several

U.S. Const. art.

I,

8,

Appellant challenges the "continuing

v. Medeiros, 897 F.2d 13

________

after

Russell
_______

rental

connected

jurisdiction"

and

reexamine

"substantially

our

to

satisfy

federal arson statute.

to

(1st Cir. 1990), in which we

property

sufficiently

holding

per se
_______

interstate

the

in

nexus

commerce

Appellant,

Medeiros
________

requirement

in

held that

"unquestionably

jurisdictional

activity and interstate commerce,

the grounds that the

is

Id. at 16-17.
__

affect"

viability" of United States

_____________

to

confer

element

of the

thus, urges us

light

between

of

L pez'
_____

the illegal

and reverse his convictions on

evidence does not prove that

the attempted

arson

of

the

Galleria

II

"substantially affects"

interstate

commerce.

1.
1.

The Constitutionality of Section 844(i)

The Constitutionality of Section 844(i)

A.
A.

Although

Standard of Review
Standard of Review

Appellant

challenge below,4 a claim

that

failed

that a statute is

the court lacked jurisdiction

time on

appeal.

to raise

United States
_____________

his

L pez-based
_____

unconstitutional or

may be raised

for the first

v. Seuss, 474 F.2d

_____

385, 387 n.2

(1st Cir.), cert. denied., 412 U.S. 928 (1973); see also, Fed. R.
_____________
________

Crim. P. 12(b)(2)

court

at

any

(lack of

time).

____________________

jurisdiction may be

We

review

noticed by

determination

of

the

the

Appellant did not

L pez had
_____
argue

make these L pez-based

_____

not yet been decided.

arguments below as

We note that Appellant does not

that we must consider L pez even though rendered after his

_____

trial because it establishes a new rule for criminal prosecutions

and must be applied retroactively.
U.S.

See Griffith v. Kentucky, 479

___ ________
________

314 (1987); United States v. Melvin, 27

______________
______

(1st Cir.

1994).

whether this

We

need not

address this

case falls within Griffith,

________

F.3d 703, 707 n.4

issue, or

because, regardless of

waiver, Appellant does not prevail on the merits.

-9-

decide

constitutionality

States
______

v.

without

L pez-based
_____

71

statute

F.3d 946,

explicitly stating

de novo.
_______

953

so,

(1st

See United
___ ______

Cir.

1995)

de novo review
________

to

constitutional challenge not raised during pre-L pez

_____

proceedings);

Cir.

a federal

D az-Mart nez,
_____________

(applying,

(6th

of

United States
_____________

1995)

constitutional

(applying

challenge to

v. Sherlin,
_______

67 F.3d

de novo
________

review

the federal

arson

1208, 1213-14

to

L pez-based
_____

statute), cert.
_____

denied, 116 S. Ct. 795 (1996); United States v. Aguilar-Aranceta,

______
_____________
________________

957 F.2d

18, 21 (1st Cir. 1992)

constitutional

law).

464, 465 (5th Cir.

But see
_______

(reviewing de novo questions of

_______

United States v.
_____________

Spires, 79 F.3d
______

1996) (reviewing only for plain

error L pez_____

based constitutional challenge not raised below during

proceedings);

United States v. Dupaquier,

_____________
_________

pre-L pez
_____

74 F.3d 615, 619 (5th

Cir.

1996) (same); Daigle v. Maine Medical Center, Inc., 14 F.3d

______
__________________________

684,

687-88 (1st

with full

("The raise-or-waive

force to constitutional challenges.").

what standard

even

Cir. 1994)

under

of review we

the

more

Regardless of

apply, the result is

favorable de novo
________

rule applies

the same since

standard,

we

reject

Appellant's constitutional and jurisdictional challenges, finding

that L pez in no way provides grounds for reversal in this case.

_____

B.
B.

As

Congress

has

with

the

Discussion
Discussion

federal

often invoked

its

arson statute

authority

at

issue

under the

here,

Commerce

Clause

to federalize

criminal

activity.

Appellant points

to

Free School Zone Act5

as

present

to

-10-

L pez and its invalidation

_____

evidence

that

restrictively

the

Supreme

of the Gun

Court's

position

is

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

the

("Under

our federal

system,

authority for defining and

Brecht
______

v. Abrahamson,
__________

of

primary

enforcing the federal law.'" (quoting

507 U.S.

Court recognized three categories

regulate

'States possess

619, 635

(1993))).

The L pez
_____

of activity which Congress may

under the Commerce Clause: (i) "the use of the channels

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.

_____

After L pez,
_____

the Court

explained in United States v.

______________

Robertson, ___ U.S.

_________

that

these

analytically

three

bases

distinct,

activities engaged

activities

___, 115

of

(1995) (per

congressional

reaffirming

the

having a

authority

are

between

and purely intrastate

substantial effect on

___, 115 S. Ct.

that the "'affecting commerce'

curiam),

distinction

in interstate commerce

See Robertson, ___ U.S. at

___ _________

stated

S. Ct. 1732

interstate commerce.

at 1733.

The

Court

test was developed in our

jurisprudence to define the extent of Congress' power over purely

intrastate
_____

commercial

activities

that

nonetheless

have

____________________

This Act

firearm

made it

a federal offense

at a place that

to knowingly

the individual knows

cause to believe is a school zone.

-11-

possess a

or has reasonable

substantial interstate effects."

_____

(emphasis

in original)

and workers from out of

Id. at ___, 115 S. Ct. at

___

(concluding that

transporting equipment

state fell within 18 U.S.C.

alternative criterion without regard to the

1733

1962(a)'s

"affecting commerce"

test).

We consider

pre-L pez
_____

holding

in

the federal arson statute

Russell
_______

in

light

of

and the Court's

this

framework,

concluding that

L pez does
_____

not invalidate 18

First, by its plain language,

both

the second and third

property that is

U.S.C.

844(i).

Section 844(i) clearly falls under

L pez categories in
_____

either "used in interstate

__

that it protects

or foreign commerce

or in any activity affecting interstate or foreign commerce."

_______________

U.S.C.

844(i) (emphasis added).

Second,

requisite

18

the

federal

"jurisdictional

arson

element"

statute

and

contains

thus

is

the

readily

distinguishable from the provision

invalidated in L pez.
_____

As we

recently

the

L pez
_____

noted

in D az-Mart nez,
_____________

"found significant that

the statute

Supreme

Court in

in that case,

18 U.S.C.

922(q) [the federal firearms possession statute], 'contain[ed] no

jurisdictional

element which would

inquiry,

the

that

firearm

interstate commerce.'"

L pez, 115
_____

S. Ct. at

contains

1631).

a specific

obliterated serial

possession

D az-Mart nez,
_____________

jurisdictional element

it

ensure, through case-by-case

in

question

71 F.3d at

We held that,

number have

the

922(k) because

the firearm

been "shipped or

-12-

953 (quoting

unlike L pez,
_____

was present in 18 U.S.C.

requirement that

affects

with the

transported in

interstate

or

foreign commerce."

Mart nez, 71 F.3d at

________

U.S.C.

922(k);

953 (holding that "[w]hatever the

L pez, it does not invalidate

_____

the

18

federal arson statute

18 U.S.C.

922(k)").

the arson must

too,

contains the requisite jurisdictional

have been "used

commerce or in an activity affecting

18 U.S.C.

reach of

Here,

element which similarly ensures that, case-by-case, the

damaged by

D az_____

property

in interstate .

. .

interstate . . . commerce."

844(i).

Third, while

the federal

arson statute is

similar to

that struck down in L pez in that it does not regulate commercial

_____

or economic activity, see United States v. Pappadopoulos, 64 F.3d

___ _____________
_____________

522,

526-27

(9th Cir.

destruction of

1995), it

business property

interstate nexus, see Russell, 471

___ _______

least intended to protect

v. Flaherty, 76
________

does

that

regulate the

damage or

satisfies the

requisite

U.S. at 860-62 ("Congress

all business property"); United States

_____________

F.3d 967, 974 (8th Cir. 1996).

the absence of any mention of Russell in the

_______

L pez, we can find

_____

no reason to conclude that

Russell's analysis
_______

of Section 844(i)'s

history

or

its

constitutionally

satisfies

conclusion

regulates

the requisite

U.S. at 860-62.

at

that

arson

Particularly in

majority opinion of

L pez invalidates
_____

purpose and

the

federal

of

business

jurisdictional element.

After all, whatever L pez' reach,

_____

legislative

arson

statute

property

Russell,
_______

that

471

it certainly

did not

purport to overrule

cases upholding application

Commerce Clause power to wholly intrastate

of the

activities satisfying

-13-

the requisite nexus to interstate commerce.

Genao, 79 F.3d 1333, 1336 (2d Cir. 1996).

_____

See United States v.

___ _____________

Furthermore,

we

reject

Appellant's

argument

that

Section 844(i) is unconstitutional because it improperly intrudes

into Massachusetts' primary authority for defining and

the criminal law.

statute

is

By virtue of the fact

criminal

law

it indeed

that the federal arson

intrudes

traditional dominion over the criminal law.

1631 n.3 ("Under our federal

enforcing

upon

states'

L pez, 115 S. Ct. at

_____

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

into criminal law is invalid."

United States v. Bishop, 66

_____________
______

569,

584 (3d Cir. 1995)

constitutionality of

2119).

Where, as

F.3d

(rejecting L pez-based challenge to the

_____

the federal

here, the

carjacking statute, 18

criminal

U.S.C.

statute satisfies

the

constitutional limits

challenge that it

of the Commerce Clause,

interferes with the states' ability

and enforce the criminal law.

Finally, we note that we join

the

it withstands the

conclusion that

muster under L pez.

_____

18

See Russell, 471 U.S.

___ _______

to define

at 860-62.

our fellow circuits in arriving at

U.S.C.

844(i) passes

constitutional

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.

_____________

Because

validity of 18

court

properly

we

U.S.C.

had

find no

basis

to

question the

844(i), we conclude

subject-matter

-14-

that the

jurisdiction

presumed

district

conferred

by

virtue

of the fact that

Appellant was charged

against the United States."

v.

[the

is

Ryan, 41 F.3d
____

18 U.S.C.

361, 363-64 (8th

jurisdictional] element is

not guilty; but the

3231.

Cir. 1994)

with an "offense

See United States

___ _____________

(noting that "if

not satisfied, then [defendant]

court is not by

the failure of proof on

that element deprived of judicial jurisdiction.").

2.

Sufficiency of the Evidence

2.

With

insufficient

Sufficiency of the Evidence

respect

evidence

to

to

Appellant's

sustain

claim

his

that

there

convictions,

was

Appellant

"faces an uphill climb," United States v. Valle, 72 F.3d 210, 216

_____________
_____

(1st Cir. 1995).

most

"If the evidence

agreeable

rational

to

government,

jury to find each

conviction beyond

fails."

the

Id.
___

evidence in the

adequate

to permit

As

the

light most compatible with

claim

district court's

for judgment of acquittal is

"like the trial court, must

the offense of

doubt, then [Appellant's]

(citations omitted).

de novo review, we,

_______

is

essential element of

a reasonable

disposition of a motion

presented, taken in the light

subject to

'scrutinize the

the verdict, resolve

all credibility disputes in the verdict's favor, and then reach a

judgment

whether

a rational

jury

could

find guilt

beyond

reasonable doubt.'" Id. (quoting United States v. Taylor, 54 F.3d

___
_____________
______

967, 974 (1st Cir. 1995)).

After thoroughly

these

reviewing

straightforward rules,

we are

the record6

and

convinced that

applying

a rational

____________________

We included in our

review of the record

recordings because, as we

the challenged tape

explain below, we find that

properly admitted into evidence.

-15-

they were

jury

could

have

government

had

including,

as we

nexus

found

beyond

successfully

reasonable

proved

each of

discuss more

the

thoroughly below,

to interstate commerce --

conspiracy convictions.

doubt

that

elements

the

--

the requisite

of both Appellant's attempt and

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

_____________

Cir. 1992).

the

jury

v. Gonz lez-Torres, 980 F.2d

_______________

788, 790 (1st

Here, the record clearly supports the verdict.

chose

to

believe

government, particularly

the

testimony

that of Schaller,

presented

by

and disbelieve

That

the

that

presented by the defense was well within its province.

As part of our sufficiency

must determine

met.

Because

whether the

offense, this

elements of

the offense,

reasonable doubt.

897 F.2d

requisite jurisdictional

it constitutes a

substantive

of the evidence review,

element is

jurisdictional predicate of

"jurisdictional element,"

must be

proved to the

See Pappadopoulos, 64 F.3d

___ _____________

at 15-17 (stating that the

under

Thus,

jury beyond

among other things,

statute, the

that the

at 524; Medeiros,
________

government need only show a

in order for Appellant to be

the federal arson

the

like other

de minimis connection to interstate commerce in order

__________

this element).

we

to satisfy

found guilty

government had

property was either

"used in an activity affecting" interstate commerce.

to prove,

"used in"

18 U.S.C.

or

844(i).

This

involves identifying for what activity

or purpose

-16-

the building is

"used."

on the character of a

Cf. Medeiros, 897

__ ________

F.2d at 16 (focusing

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,

does

not

prove

interstate

argument

that

commerce.

below, we

court's ruling

the

because under L pez

_____

building

the evidence

"substantially

affects"

Because Appellant did not raise this L pez

_____

review

only for

plain

on the sufficiency of the

jurisdictional element.

732 (1993) ("There must

'affect[s] substantial

United States
_____________

be an 'error'

error the

district

evidence regarding the

v. Olano, 507
_____

U.S. 725,

that is 'plain' and

rights.'"); United States

______________

v. Brand,
_____

that

80

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

Russell or
_______

show, and

the district

Medeiros.
________

court

Under

the jury need

in order

U.S.C.

Medeiros,
________

question

a de minimis
__________

to sustain

897

arsons was

a "building"

commercial establishment,

was

presented

rented

16-17.

that

need only

under 18

Here,

the

that the object of the

that was

being "used"

the Galleria II restaurant.

with evidence

of

connection to

a conviction

F.2d at

government presented uncontested evidence

attempted

the viability

Medeiros, the government

________

only find,

interstate commerce

844(i).

to

Appellant

and his

as a

The jury

partners

the building; that the building was supplied with natural

-17-

gas

which

traveled

restaurant

received

traveled in

oral

interstate

food

supplies

interstate commerce.

argument

that

establishment which

its

in

operation

that

the

received food

in

district court correctly instructed

had to prove

property

for

Indeed,

building

travelled

commerce;

was

its

in

or

[sic]

that

operation

the

which

Appellant conceded at

used

as

commercial

supplies and natural

interstate

commerce.

gas for

The

the jury that the government

beyond a reasonable doubt that the

"used

and

affected

Galleria II was

interstate

or

foreign

commerce."7

Viewing the evidence in the light most favorable to

the jury verdict, this evidence

minimis
_______

requirement,

insufficiency of

and

more than satisfies Medeiros' de

________ __

we

the evidence

therefore

argument.8

reject

Appellant's

See, e.g., Ryan,

___ ____ ____

41

____________________

The

court further instructed

means commerce or

business between

another place outside that state.

places

within

the same

outside that state."

related

property,

considered used

the jury: "Interstate

state,

any place in

one state

opposed

and

It also means commerce between

but passing

through

Finally, the court stated:

as

commerce

to

any place

"Now, business-

residential

property,

is

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

foreign commerce is

used in

the building."

interstate or

Appellant did

object to this instruction below or specifically challenge

appeal.

not

it on

We need not address Appellant's contention that our holding in

Medeiros
________

that

the

government

connection to interstate
merely note that
amount of
element

need

show

commerce is invalidated

while the

L pez decision did

_____

evidence required to prove

of an offense,

only

de minimis
___________

by L pez.
_____

We

not address

the

an explicit jurisdictional

see Flaherty, 76 F.3d

___ ________

not necessarily mean that it is not controlling

how

at 974, this does

when determining

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

the property is

temporarily closed or vacant");

29

1229

F.3d

1223,

connection where

(7th Cir.)

building

(finding

used partly

as

when

U.S. v. Menzer,
____
______

interstate

commerce

commercial

business

received natural gas and items purchased for resale that moved in

interstate

commerce),

Medeiros, 897
________

cert. denied,
_____________

115 S.

Ct.

515

(1994);

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

the Galleria

sufficient evidence

II was a building

to support its

either "used in" or

finding that

"used in an

activity

reason

affecting" interstate

to

think

that

L pez
_____

conclusion that Congress has

business

that

property.9

L pez in any
_____

commerce.

in

any

way

Above,

we found

undercut

Russell's
_______

the authority to regulate arson

Similarly,

we find

way undercuts Russell's

_______

no basis

no

of

to conclude

holding that "rental

property is unquestionably" an "activity" that affects interstate

commerce within the meaning of 18

U.S.

at 862

("We need not

U.S.C.

rely on

844(i).

Russell, 471
_______

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).

See
___

generally,
_________

Element of 18 U.S.C.

Thomas

J.

Egan, Note,

The

Jurisdictional

844(i), A Federal Criminal Commerce

Clause

Statute, 48 Wash. U.J. Urb. & Contemp. L. 183, 208 (1995) (noting

that

"the controversy of

issue

844(i) jurisdiction boils down to one

-- in addition to business property, what types of private

________________________________

property trigger federal jurisdiction in arson cases?") (emphasis

added).

-19-

market

for residential

people,'

is

and the

'interstate movement

of

to recognize that the local rental of an apartment unit

merely

rental

units

an element

of a

much

broader commercial

properties." (quoting McLain v.

______

market in

Real Estate Board of New

________________________

Orleans, 444 U.S. 232, 245 (1980))); cf. Sherlin, 67 F.3d at 1213
_______
__ _______

(finding that

building used

was building used in

We, thus, reaffirm

in educational business

of college

an activity affecting interstate commerce).

our holding in Medeiros that

________

rental property

is per se sufficiently connected to interstate commerce to confer

______

federal

jurisdiction under

jurisdictional element.

uncontested

Section

See
___

evidence was

844(i) and

to satisfy

Medeiros, 897 F.2d at 16.

________

presented

that, at

the

the

Because

time of

the

attempted fires, Appellant and his partner rented the building in

which the Galleria II

sufficient evidence to

was operated, the jury was

find that

the building was

activity affecting" interstate commerce

presented with

"used in

an

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

presented below

finding.

that

establishment which

the

Because

building

received food

uncontested evidence

was used

as

was

commercial

supplies and natural

gas for

its operation that travelled in interstate commerce, the Galleria

II

also

property

falls within

used

in

18 U.S.C.

interstate .

844(i)'s "real

commerce."

or personal

Because

the

Galleria II was property used in interstate commerce, we need not

_______

-20-

address

whether

interstate commerce.

its

Cf.
___

activities

"substantially

affect[ed]"

Robertson, ___ U.S. at ___, 115 S. Ct.

_________

at 1733.

In

could

had

sum, because we are

have found beyond

successfully proved

convinced that a rational jury

a reasonable doubt

each

of the

that the government

elements,

we affirm

district court's denial of Appellant's motions for acquittal.

II.
II.

Appellant's Motion for Mistrial

Appellant's Motion for Mistrial

the

Appellant also appeals

mistrial on the grounds

the denial of his

motion for a

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

("The

trial

assessment of

judge

the

is

best

impact that

situated

to

make

a particular

Cir. 1995)

battlefield

piece of

improper

information may have on a jury."); United States v. Sep lveda, 15

_____________
_________

F.3d

1161, 1184 (1st Cir.

for

mistrial

discretion."),

is

1993) ("Granting or

matter

committed

cert. denied, ___

_____________

U.S.

to

___,

denying a motion

the

trial

114 S.

court'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

follows:

Q:

Now,

in the beginning of the restaurant

when it first opened,

speak

with

the

defendant

Galleria II Restaurant?

-21-

A:

how often did you

On a daily basis.

about

the

as

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).

to

At this point, Appellant objected

the comment and moved for a

"comment

mistrial on the grounds that the

was completely gratuitous .

specifically to, solely to[,]

of this jury."

the

it was designed

inflame the passions and prejudice

(Transcript, Vol. 4 at 99).

Although the court seemed

that

. . [a]nd

information

was

offered

to agree with the government

as

"strictly

background

information,"

possibility

the

court

that some jurors "may

runs a gay bar may

Vol. 4

was nonetheless

have a view

The

individually to ascertain

any way;

night club.

(Transcript,

with the jurors

(i) whether the juror

was affected by

(ii) whether the

evidence and the

court, without regard to

the

court decided to speak

impartial; and (iii) whether the juror would

verdict based on the

about

that someone who

not be an upstanding citizen."

at 99-100).

the testimony in

concerned

juror would

remain

be able to render a

law as instructed by

the fact that Appellant operated

the

a gay

After every juror responded that he or she would not

be affected by

the testimony

in rendering his

-22-

or her

verdict,

(Transcript, Vol. 4 at 101-12), the court concluded, "All

I'm satisfied."

(Transcript, Vol. 4 at 113).

without further

comment by counsel,

end of trial,

be asked of

right.

At this point, and

testimony resumed.

At the

Appellant did not request any additional questions

the jurors

or that any

additional instructions

be

given.

Based on

that a

the record,

district court

and under the

may declare

a mistrial

guiding principle

only as

a "last

resort,"

court's

Sep lveda, 15 F.3d at

_________

decision

"was

well

discretion." Rivera-G mez,

____________

1184, we find

within

the

67 F.3d at

that the district

broad

999.

range

The

unfounded based

States
______

need

v. Hahn, 17
____

not be

on his

voir dire

F.3d 502, 508

allowed

absent a

of the

(1st Cir.

clear

immediately after

jurors.

that it

United
______

1994) ("A mistrial

showing of

Moreover, the district court acted swiftly

its

district court

properly weighed the claim of impropriety and determined

was

of

prejudice.").

by polling the jurors

the improper testimony.10

Sep lveda, 15 F.3d

_________

at 1185 ("Swiftness in judicial

response is an important element

in

the

alleviating prejudice

improper testimony.").

once

jury

has been

The government argues

exposed

to

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

to the jurors] at this point?"

Appellant responded that "I think

I should

know the answer.

The court agreed and

It makes

sense to us,

spoke individually with each of

at that time. (Transcript, 4-101).

-23-

I [speak

doesn't it?"

the jurors

in determining guilt or innocence.

the

responses

"efficaciously

statement by

States
______

v.

received,

we

agree

dispelled" any

its immediate

Bello-P rez,
___________

Given the questions asked and

that

district

prejudicial effect

and thorough

977

the

F.2d

664,

court

of Schaller's

response.

See
___

United
______

672

Cir.

1992)

(1st

(affirming denial of motion for mistrial where "[a]ny prejudicial

effect

given

of the

remark was

the overwhelming

efficaciously dispelled").

evidence of

trial, the challenged testimony

F.2d

at

672

(denying

mistrial

guilt presented

was innocuous.

where

Finally,

during the

Bello-P rez, 977

___________

evidence

of

guilt was

overwhelming).

III.
III.

Appellant's Motion for a New Trial and Motion in Limine

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

in denying his motion

tapes of

abused its discretion

in limine11 to exclude from

_________

recorded conversations between himself

February, March and May 1994.

not properly before

evidence four

and Schaller in

As the motion for a

us on appeal,12 we

new trial is

only address Appellant's

____________________

11

When

the

reiterated
which he

tapes

were

his objections
first

Transcript,

had

Vol. 5

admitted
to

raised

evidence,

the admissibility
in

at 48.

into

his

Appellant

of the

tapes,

motion

in limine.
__________

See
___

find

the present

claim

Thus, we

properly preserved for appeal.

12

On

February

24, 1995,

-- fourteen

days after

the guilty

verdict was rendered -- Appellant filed a motion for a new

and to extend time
court
timely

denied

to file supporting memorandum.

both motions

on the

filed pursuant to Fed.

alia, seven-day filing

____

grounds

R. Crim. P.

period from the

trial

The district

that they

were not

33 (providing, inter
_____

guilty verdict, or

such

time
based

as the court may

fix during the

seven-day period, "unless

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
_________

that the tapes should

evidence

outweighed

because

Appellant

argued below,

as he

have been excluded in their

(i) their

probative

by their prejudicial effect

value

does now,

entirety from

was substantially

under Fed. R. Evid. 403,

even

after

improperly

certain

portions

admitted as

were

evidence

redacted;

of "other

(ii)

they

crimes, wrongs,

were

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

their respective

the

court listened

to the four

tapes, reviewed

transcripts, and heard arguments

admissibility of

both the

tapes and

of counsel on

the transcripts.

In

____________________

R.
time

Crim. P. 45(b)
for any

Because

(providing that the court

action under, inter alia, Fed.

___________

Appellant's

motion

was

because his arguments on appeal

evidence,"
before,
court is

we do

not

not timely

that is not timely filed.

motion.

33 is jurisdictional

without discretion to

R. Crim.
filed

P. 33).

below,

and

do not involve "newly discovered

address this

Fed. R. Crim. P.

may not extend the

grant a motion

As

we have

held

and the district

for a

new trial

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

meaningless -- as
this

case,

applies

to

distinguishing these two

a practical

given

that

both

motions

motions is

matter -- within

the same

the context

abuse-of-discretion

and that

Appellant's

somewhat

sole

of

standard

argument

regarding the motion for a new trial is that the court abused its
discretion in denying the motion in limine.
_________

14
the

In

his motion in limine, Appellant

_________

grounds that

also sought exclusion on

portions contained inadmissible

Appellant

does not

hearsay under

Fed. R.

Evid. 802.

appeal.

We assume

shows,

those portions

to

which Appellant

objected on

hearsay

grounds

were excised

from

the recordings

by agreement

of the

parties

and the court.

the reason for

In any

make this argument

this is that,

event, as this

properly raised on appeal, we do not address it.

-25-

on

as the record

argument is not

denying Appellant's

motion in limine
__________

their entirety under Fed.

court

R. Evid. 403 and 404(b),

the tapes

in

the district

found that they were admissible as probative of the issues

raised in the

case and

than prejudicial.

court, however,

of

to exclude

(Transcript,

"overall more

Vol. 2 at 12-13).

did allow Appellant to

undue prejudice.

hearing

that they were

relevant"

The district

make specific objections

(Transcript, Vol.

at 13-15).

After

argument from counsel, (Transcript, Vol. 4 at 4-47), the

district

objections

court

and

agreed

excluded

with

those

most

of

Appellant's

portions.

With

specific

respect

to

Appellant's

the

audibility argument, the

March 1, 1994, tape troubling

woefully inadequate

for any

(Transcript, Vol. 2-17).

the

The

only way to understand

district court

only found

in that it "seems

. . . just

reasonable

person to

understand."

district court's concern was

the tape was

that

to read the transcript

which

resulted in the transcript -- and the Government's view --

being

given too much weight.

hearing

admit

arguments from

counsel, the

district court

decided to

the tape and allow the transcript because both parties had

stipulated

of

After considering alternatives and

to the accuracy of the transcript as a true rendition

the recording.

Finally, the

(Transcript,

Vol.

2 at

district court gave cautionary

jury that the tapes

4; Vol.

4 at

4).

instructions to the

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

United States v. Frankhauser,

_____________
___________

United States v.
_____________

The

same

standard

See
___

discretion.

See, e.g.,
___ ____

80 F.3d 641, 648 (1st

Cir. 1996);

Cruz-Kuilan, 75
___________

court's decision

argument.

abuse of

of

F.3d 59, 61

review applies

to admit the tapes

United States
_____________

regarding

where portions

of the taped

unintelligible.").

A.
A.

district

F.3d 1162,

1167

on numerous occasions, a trial

judge's ruling on the admission of recordings is

discretion,' even

the

1996).

over Appellant's audibility

v. Jadusingh, 12
_________

(1st Cir. 1994) ("As we have held

(1st Cir.

The Tapes' Relevancy

The Tapes' Relevancy

afforded 'broad

conversation are

Evidence is excludable under Fed. R.

probative

unfair

value is

substantially

prejudice."16

After

Evid. 403 "if its

outweighed by

reviewing

the

the danger

of

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,

excluded

if

its

evidence
probative

may

be

value

is

substantially outweighed by the danger of

unfair

prejudice,

issues,

or

confusion

misleading the

considerations of undue
time,

or

needless

cumulative evidence.

-27-

of

jury,

the
or by

delay, waste
presentation

of
of

find no abuse of

discretion in the district court's

not

tapes in

exclude the

argument,

Appellant

statements prove

consciousness

their entirety.

claims

any

element

of guilt;

(ii)

that

(i)

of the

In

none

alleged

the recorded

decision to

support

of

of his

Appellant's

crimes

or

show

conversations

took

place two years after the predicate offenses occurred; (iii) many

of

Appellant's

instigated

arguments were

by the

conversations

were

government

made

in

response to

witness; and,

intertwined

with

others

(iv) any

that

questions

relevant

were

not

relevant.

We find none of these arguments persuasive.

As the district court

probative evidence regarding

including admissions.

found, the tapes included highly

Appellant's consciousness of guilt,

The tapes were

directly relevant to

the

government's theory regarding both Appellant's involvement in the

attempted

arson and

the

conspiracy.

Appellant's counsel conceded

tapes' admissibility:

Indeed,

as much during

"I concede,

we

note

the hearing on

Judge, that there

that

the

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.

only

did

it

corroborate Schaller's

testimony

that

Not

Appellant

assisted

in

the

payment

of

Schaller's

legal

fees,

this

____________________

17

Because

transcripts

the parties

stipulated

as true recordings

actually listen

to the tapes.

were not made part

to

the

accuracy of

the

of the tapes, we

do not need to

In any event, we

note that they

of the district court record

nor included as

part of the record on appeal.

-28-

conversation included evidence from which the jury could draw

inference "that this money is

an

being paid because these gentlemen

were

in on the deal together."

(Transcript,

March

1, 1994, tape includes

an admission by

threw matches to

weren't there

time."

Vol. 4 at 9).

Appellant that he

light the fire during the first

when I

threw the

[expletive]

The

attempt:

matches the

"You

first

The March 4, 1994, tape includes an adoptive admission by

Appellant

regarding his attempts to burn the restaurant during a

conversation about whether Appellant

efforts.

had told anyone about those

While Appellant denies telling anybody

efforts, he

responds

to Schaller's

else about his

questions directly

without

ever disputing the veracity of what Schaller's questions imply --

that

Appellant

provides

Appellant.

"tried to

evidence

The

of

the

burn it."

conspiracy

The May

between

conversation demonstrates

25,

1994, tape

Schaller

and

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

shows

contrary

that,

include statements

sampling of

to

each of

the four

Appellant's

by Appellant

claims,

tapes clearly

the

recordings

that are directly

probative of

to the

the recorded

both attempts and the conspiracy.

Appellant

conversations

also points

occurred two

arguing that the recordings

the charged

intent

offenses

years

after

the alleged

offenses,

are neither closely intertwined with

nor helpful

to commit the crimes

fact that

in

charged.

-29-

establishing

Appellant

Appellant's

cites to three

cases

addressing the

Evid. 404(b).

admissibility

of evidence

under Fed.

R.

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

factor to be considered in determining relevancy under Fed. R.

Evid.

404(b) of

United States v.
______________

"other crimes,

Fields,
______

wrongs, or

871 F.2d

188,

acts."

197 (1st

See, e.g.,
___ ____

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

time

and

the

in

nature to

crime

acts were both

charged).18

In

close 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

establish appellant's

Because

the

and were,

intent to

conversations here

predicate offenses,

thus, found

commit the crime

occurred

two

Appellant contends that the

to "help[]

charged." Id.
___

years after

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.

revelations

of

assertion that
formed

Evid. 403.

Reasoning that "because

'skullduggery' that

formed

the

the same

basis for

his

the tape was unfairly prejudicial could also have

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

under Rule 404(b), noting that the two

glove."

Currier, 836 F.2d at 17.

_______

-30-

claim of error

"usually . . . go hand in

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

that

proximity

relevance under

in

time

any

consequence

relevance.

is

See, e.g.,
___ ____

1279-80 (1st Cir. 1991)

prerequisite

that the timing of the

or

otherwise

for

determining

undermines

conversations is

their

United States v. Perkins, 926

_____________
_______

(finding no error in admission

conspiracy statements made to

found

cases holding

Fed. R. Evid. 403, and because we have not found

any, we are unconvinced

of

has not cited to any

strong

F.2d 1271,

of post-

a government informant where court

statements were an admission corroborating trial testimony

and

reflected

assuming,

complicity and

arguendo,
________

that

determining relevance,

conversations occur

proximity

Currier,
_______

discussed above,

intent
______

to

conspiracy, they

complicity

as

836

the

guilt).

be

considered

significant

F.2d at

attempted

as the

Perkins, 926 F.2d at 1279-80.

_______

in

even though the

attempt and conspiracy,

. .

contextual material" for

17 (citations

omitted).

As

necessarily show Appellant's

arson

or

to

do show Appellant's consciousness

well

Even

with the charged offense[s] .

while they do not

commit

must

two years after the

[] provid[e] . .

the jury.

of

we nonetheless find that

they are "closely intertwined

[and]

consciousness

existence

of

enter

into

of guilt and

conspiracy.

See
___

-31-

While

admissible,

we do

outweighed by the

403.

not

all

not

evidence

find that

danger of

In reviewing

the

with

its

probative

value is

court, we give great deference to the

is

"substantially

unfair prejudice."

balancing undertaken

value

Fed. R.

by

Evid.

the district

district court's judgment,

and

"[o]nly in

exceptional

exercise of a district

relative

weighing of

effect."

844 (1987)).

that

probative value

F.2d at

18

and unfairly

question

value of

the

tapes --

unfairly prejudicial evidence.

under Rule

403 is

prejudice alone); Currier, 836

_______

evidence

prejudicial

101-02 (1st Cir.), cert. denied,

____________

States v. Mu oz, 36 F.3d 1229, 1233 (1st

______
_____

the

the

(quoting United States v.

______________

Based on our review of the record,

the probative

outweighed by

we reverse

court's informed discretion vis- -vis the

Currier, 836
_______

Griffin, 818 F.2d 97,

_______

circumstances will

is evidence . .

one

484 U.S.

we do not find

as edited19

-- was

See, e.g., United

___ ____ ______

Cir. 1994) (noting that

of unfair

prejudice, not

F.2d at 18 ("Unfairly prejudicial

. that 'triggers

[the] mainsprings of

human action [in

decision on

the

in

to] cause the

something other than the

case.'") (quoting

(1986)).

made

such a way as

1 Weinstein's

jury to base

its

established proposition in

Evidence

403[03], 36-39

Neither the fact that many of Appellant's remarks were

response to

witness, nor

questions

that relevant

or comments

conversations were

non-relevant ones, persuades us

by

the government

intertwined with

to reach a different conclusion.

____________________

19

As mentioned above, after hearing arguments from counsel, the

district

court agreed to

excise most of

which Appellant raised specific objections.

-32-

the portions regarding

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,

Appellant tells Schaller

(Transcript,

Vol.

prejudicial.

Finally,

circumstances"20

(Transcript, Vol.

at 32),

or that

what to say about pouring the gasoline,

at

we

44),

do

exist which

does

not

not find

make

that

warrant reversal

them

unfairly

any

"exceptional

of

the district

court's rulings.21

B.
B.

The Tapes' Prior Bad Act Evidence

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

discretion,

we find that

the district court

did not abuse

we need not decide whether the admission of the tape

recordings -- even if an error -- was nonetheless harmless.

22

its

Fed. R. Evid. 404(b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts

is not admissible
of a

person in

to prove the character

order to show

conformity therewith.

action in

It may,

however,

be admissible for other purposes, such as

proof

of

motive,

preparation,
or

absence

provided
accused,

plan,
of

upon

or

request

prosecution in

case shall provide

intent,

knowledge, identity,

mistake

that
the

opportunity,

accident,
by

the

a criminal

reasonable notice

in

advance of
court

trial, or during trial if the

excuses

pretrial

notice on

good

cause shown, of the general nature of any

such evidence it intends to

introduce at

trial.

-33-

within

Fed.

references

R.

were

Evid.

404(b),

excised

(Transcript, Vol. 4 at 21).

on

appeal what

by

the

agreement

Not only

"other crimes,

record

shows

of

that

the

these

parties.

does Appellant not specify

wrongs, or

acts" under

Fed. R.

Evid. 404(b) were erroneously admitted into evidence,

mention

we find no

of any in the portions that were admitted into evidence.

Accordingly, we do not address this argument further.

C.
C.

Lastly,

as

The Tapes' Audibility

The Tapes' Audibility

to

Appellant's

audibility

argument,

in

exercising its broad discretion in ruling on the admissibility of

tape

recordings, even where

Ram rez,
_______

Gorin
_____

v.

unintelligible, Font_____

944 F.2d at 47, the district court "must decide whether

'the inaudible parts are

misleading

portions are

than

helpful.'"

United States,
_____________

denied, 374 U.S.

______

so substantial as to make the rest more

Id.
___

313 F.2d

829 (1963)).

(citations

641,

While the

omitted) (quoting

652 (1st

Cir.), cert.
_____

district court

found

that there were segments

court

of poor audio and static,

nonetheless decided to admit them.

the district

The district court was

swayed by the fact that the parties stipulated to the accuracy of

the

transcript

similarly

as a

swayed

true

and

discretion, even as

find

recording of

no

abuse

to the March 1,

district court was most

concerned.

the

of

the

tapes.23

We are

court's

1994, tape about which

Based

on our review of

broad

the

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

transcript clearly

tapes, including

audible.

more

misleading

evidences

they

tending

to show

testimony.

helpful,

that sufficient

statements by both Schaller

As discussed

because

than

include,

earlier,

inter alia,
___________

consciousness

Furthermore,

these

the district

portions

of

the

the

and Appellant, are

segments are

admissions

of guilt

because

by

relevant

Appellant,

and corroborate

court gave

trial

a cautionary

instruction

to the

jury that

tapes, but not the

not only

informed them

that the

transcript, were evidence, but also

that the

jurors had to draw their own conclusions regarding

and

probative value based on

tapes.25

United States
_____________

their content

what they themselves

v. Carbone, 798
_______

F.2d 21,

heard on the

26 (1st Cir.

1986) (finding that the judge's handling of the transcript was in

accord

with

carefully

the

law where

instructed

transcripts, were

the

the

record

jurors

that

evidence and that any

shows

the

that the

tapes,

not

judge

the

differences between the

____________________

24

See
___

n.17, supra.
_____

argument, we

In

add only this:

ruling

on Appellant's

By not including the

audibility

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

not

aware of

allowed

two

that",
versions

(Transcript, Vol.
of

the

page

4
to

of that" or "I am

at 23)),
be

the

included

court
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
based

on what

segment
versions.

they heard

were to make their

on the

tapes.

The jury

own finding

heard that

twice, each time while reading along with the respective

(Transcript, Vol. 5 at 54-59).

-35-

two

must

be

resolved

in

favor

of

what

was

heard

on

the

recording).

Based on the

Appellant's stipulation

true

the

record, and particularly

to the accuracy

recording of the tapes,

district

court

in

of the transcript

we find no

admitting the

in light of

as a

abuse of discretion by

tapes

over

Appellant's

audibility objection.

IV.
IV.

Appellant's Sentence
Appellant's Sentence

Finally, Appellant appeals his

district court pursuant

U.S.S.G.

sentence imposed by the

to the federal arson

2K1.4(a)(1)-(4).

The

guidelines.26

arson guidelines

pertinent part:

(a) Base Offense Level (Apply the Greatest):

(1)

24, if

substantial
bodily injury

the offense (A)

risk

of

death

created a
or

serious

to any person other than a

participant in the offense, and that risk

See
___

provide, in

was created knowingly; . . .

(2) 20,

if the

substantial

offense (A)

risk

of

death

created a
or

bodily injury to any person

serious

other than a

participant in the offense; . . .

(3)

2F1.1

plus

the

offense

level

from

(Fraud and Deceit) if the offense

was committed in connection with a scheme

to defraud; or

____________________

26

All

November

citations to
1994

district court,
Appellant's
Aymelek,
_______

version,
as it

at

problems).

was
1995,

F.2d

64, 66

926

the

time

Sentencing

which

May 25,

district courts should

effect

the

is the

the one

version

in effect

sentencing.
n.1

(1st

apply the
of

Guidelines

See
___
Cir.

applied
at

the

by the

the time

of

United States
_____________

v.

1991) (noting

version of

sentencing,

are to

barring

that

the Guidelines
ex

post

in

facto

Here, the applicable guidelines had not changed after

Appellant committed the instant offenses.

-36-

(4)

plus

the

offense

level

from

2B1.3 (Property Damage or Destruction).

U.S.S.G.

2K1.4;

(restructuring

the

see
___

arson

Commentary,

Application

substantial

risk

creating that

U.S.S.G.

App.

guidelines).

Note

of death

or

New

2, provides

serious

risk to firefighters

C,

Amendment

language

that

in

"[c]reating

bodily injury

and other emergency

330

the

includes

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

factor);

endangering firefighters is

United States
_____________

Cir.), cert. denied,

____________

v.

Grimes, 967
______

506 U.S.

F.2d

927 (1992)

an appropriate

1468, 1471

(noting that

(10th

several

other circuits had come to the same conclusion).

Appellant challenges

three

separate

grounds.

findings of fact

We

the district court's

address them

in

sentence on

turn, reviewing

for clear error, mindful that they need only be

supported

by

a preponderance

questions

of law de novo,
_______

of a relevant guideline.

v. Mart nez-Mart nez,

of

the

evidence, and

reviewing

including the scope and applicability

See 18 U.S.C.
___

3742(e); United States

_____________

69 F.3d 1215, 1224 (1st Cir. 1995); United

_________________

______

States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994).

______
________

A.
A.

The "Fraud or Deceit" Base Offense Level

The "Fraud or Deceit" Base Offense Level

First,

should

have

Appellant

applied

contends

U.S.S.G.

for

overwhelming

"Fraud

and

evidence

Deceit."

at

the

2K1.4(a)(3),

computation of the base offense level

level

that

which

court

requires

as 2 plus the base offense

Appellant

trial established

-37-

district

argues

that

his

that

the

primary

purpose was to defraud the insurance company and that

while creating some

pouring gasoline,

While

risk of

did not

death or serious

knowingly create a

the record does indicate

scheme

to defraud the

specific

insurance company,

clearly

finding --

erroneous

substantial risk

other

--

which, as

that

of death

bodily injury

substantial risk.

we

2K1.4(a)(1) based on

knowingly

1472 (holding that district

application

of

guideline,

was not

created

bodily injury

967 F.2d at

that the

discuss below,

Appellant

or serious

we conclude

than the participants in the attempted arson.

fraud

by

that Appellant participated in a

district court properly chose subparagraph

its

Appellant,

to persons

See Grimes,
___ ______

court properly rejected

2K1.4(a)(3),

and

properly

applied

obtain

2K1.4(a)(2)

insurance

substantial

risk

in case

through

of

involving defendant's

arson

injury or

death).

instructs that the base offense level

the

where

effort to

defendant

The

created

arson guideline

is determined by selecting

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

yield

contends that

a base

offense

2K1.4(a)(1), which

is

of

24.

Appellant does

or

calculation,

nor was there

sentencing

calculation under

2K1.4(a)(3)

level

calculation

the

applying

otherwise

hearing.

19, less

present

his

than

not

own

any discussion of

Assuming,

2K1.4(a)(3) would

without

would only

that

under

dispute

this

2K1.4(a)(3)

this issue during

deciding,

have yielded only

that

a base

offense

level

of

19,

we

conclude

that

the

district

court

-38-

correctly applied

2K1.4(a)(1)

base offense level based on

created

F.3d

at

2K1.4(a)(3) in

(affirming

the highest

its finding that Appellant knowingly

a substantial risk of

656

because it yielded

bodily injury.

district

sentencing defendant

court's

Cf. Mizrachi, 48
__ ________

application

for arson, mail

of

fraud, and

money

laundering offenses

where facts

yielded an

initial base

offense level of 35).

B.
B.

Knowing Creation of a Substantial Risk

Knowing Creation of a Substantial Risk

Second,

finding that

death

or

Appellant

argues

Appellant knowingly

serious

bodily injury

district

court's

created a substantial

risk of

to

that the

any

person

other than

participant in the offense is not supported by a preponderance of

the

evidence.

substantial

Whether

risk of death

meaning of section

2K1.4 of

defendant

or serious

knowingly

bodily injury

the Guidelines raises

created

within the

an issue

of

first impression in that this court has not previously determined

what level of knowledge

the outset, we

is required under

note that this determination

2K1.4(a)(1)(A).

At

involves a two-step

inquiry.

created

then

A court must first ask whether the defendant's actions

a substantial risk of death or serious bodily injury and

decide whether

that risk.

(9th

the defendant

See United States

___ _____________

acted knowingly

v. Karlic,
______

in creating

997 F.2d 564,

568-69

Cir. 1993) (stating that the first inquiry is objective and

the second is subjective).

1.
1.

The Substantial Risk . . .

The Substantial Risk . . .

-39-

Leaving aside the question of knowledge for the moment,

we conclude first that

finding that

the district court did not clearly err in

Appellant created a

serious bodily injury to

the offense.

the

PSR,

gasoline

The

which

created

According

substantial risk

any person other than a

of death

participant in

district court based its finding

indicated, inter alia,

___________

the

potential

to the PSR, a

for

that

fuel air explosion

fire

or

primarily on

the

presence of

or

explosion.

could have occurred

had "a heat source been introduced within a specific danger range

between the

place where

within the

building where

the

gasoline was

the odor

poured and

of gasoline

anyplace

was detected,"

(PSR, at

22), and

that "because the

confined area which

contained electrical outlets,

spark or other heat source

confined

restaurant closed,

potential

for a

accidentally

fuel

created

poured in

only planned to

the

air

a substantial

risk

the

Although the evidence

ignite the fire

district court

explosion or

an electrical

could have ignited the vapors in

area at any time," (PSR, at 23).

indicates that Appellant

the

gasoline was

after

concluded that

for

of

a fire

to

death or

the

start

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

risk to patrons and

firefighters.

in this finding of

substantial

It was properly based on both

the PSR and the sentencing judge's

common sense understanding --

which

the

Appellant

conceded

during

sentencing

hearing

was

-40-

appropriate -- of the risks associated with pouring an accelerant

to

start a

potential for

fire in

a fuel

start accidentally.

an occupied

building where

air explosion

See Medeiros,
___ ________

to occur or

897 F.2d at

there

was the

for a

fire to

20 (relying

on

common

sense

in finding

defendant conspired

under

"to cause the

would endanger others.").

in

response to

created

because

Transcript, pages

fact that

did

earlier

As the

fire

create

that recklessly

that

there was

occurred,

19-22), the Guidelines speak of

fortuitously no one

was injured and

no risk

(Sentencing

"risk."

"The

extensive damage

or explosion actually occurred]

not further [A]ppellant's contention that he

a substantial risk

that

district court correctly noted

actually

not result [because no fire

does

kind of fire

Appellant's insistence

no

arson guidelines

of death

or serious

did not . . .

bodily injury."

United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir. 1993).

_____________
_________

Furthermore, in light of

commentary,

see U.S.S.G.
___

the federal arson guidelines'

2K1.4, Application Note 2, we find no

clear error in

given

the district court's finding

its finding

that firefighters "could

smithereens" had a spark

Transcript, at 20).

967

F.2d

required

spectacular fire

of

reckless

common

have been

blown to

ignited the gasoline vapors (Sentencing

See, e.g., Turner, 995 F.2d at 1365; Grimes,

___ ____ ______
______

at 1471.

firefighters

of substantial risk

While "all

to

fires present

extinguish

it,

some

danger to

[w]here

is planned near an occupied building, a finding

endangerment to

firefighters would

sense understanding of the

-41-

be based

risks of putting

on a

out a major

fire when rescue attempts are likely to be necessary."

897

F.2d at 20.

that

Appellant

Similarly, here,

planned

Medeiros,
________

although there is no evidence

"spectacular fire,"

the

sentencing

judge's finding of substantial risk in this case was based on his

-- and,

again, our

associated with

start

a fire

--

common sense understanding of

using an accelerant

where

there

was the

in an occupied

potential

for a

the risks

building to

fuel

air

explosion to occur or for a fire to start accidentally.27

2.
2.

. . . Knowingly Created
. . . Knowingly Created

Next, we must decide whether the district court clearly

erred

when

it

found

that

Appellant

substantial risk.

While we

for

the definition

clear

error,

question of law which

knowingly
_________

review the court's

of

we review de novo.
_______

created

this

factual finding

Guidelines

term is

Mart nez-Mart nez, 69

_________________

F.3d at 1224.

Looking

highest

base offense

2K1.4(a)(1)

language.

first

and

to the

levels

in the

2K1.4(a)(2),

note that

federal arson

contain

the two

guidelines,

almost

identical

The latter, for which there is a base offense level of

20, applies to

the creation of

serious bodily

injury.

offense level of

risk.

statute, we

a substantial risk

The former, for

24, applies to the

This structure

of death

which there is

or

a base

knowing creation of such

clearly suggests

that

there must

be a

____________________

27

In

Medeiros, we
________

"reckless endangerment"
consider

affirmed the

district court's

under the earlier arson

finding of

guidelines.

We

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.

F.3d at 787 (noting that "[c]learly

See Honeycutt,
___ _________

it was intended for there

to

be a

distinction between

structure

of

the

arson

2K1.4(a)(1)(A) requires

the two

sections").28

guidelines,

we

Given the

conclude

that the district court

that

make a specific

finding that the defendant "knowingly" created a substantial risk

of death or serious

that defendant

which

would

bodily injury, as opposed to

recklessly (or

more

usual rule

trigger

application

Apart

from

this

rather

guidance

is

gleaned

from

as "knowingly"

is

observation,

Guidelines,

negligently) created such

appropriately

2K1.4(a)(1)(B).

no

of

giving

merely finding

not defined.

an undefined

statutory

a risk

of

straightforward

the

In

Sentencing

addition, the

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

guidelines,

see
___

the

application

Medeiros,
________

897

F.2d

of

at

the

18

federal

(applying

arson

former

____________________

28
the

In discussing
Honeycutt
_________

firefighters

2K1.4's
court

application note about firefighters,

concluded

that

knowledge

The court

reasoned that

alone sufficient

then

risk of death or

serious bodily injury)

if that knowledge

2K1.4(a)(2) (creation of

firefighters

inherently

and emergency

fires can ordinarily

"The

dangerous,

arsonist must

poses a substantial

know that

the

knowledge
to

Honeycutt, 8
_________

a specific

a substantial

As the court noted,

personnel respond

be presumed."

risk of

and

that

virtually all
F.3d at

fire for

death or serious

787.

some reason

bodily injury

firefighters and emergency personnel who may respond."

-43-

were

would be subsumed by

2K1.4(a)(1) (knowing creation of that risk).

are

that

will respond to a fire "cannot suffice to satisfy

2K1.4(a)(1)."

"fires

alone

Id.
___

to

U.S.S.G.

2K1.4(b)(2)

that defendant

and affirming

"recklessly endangered

district court's

the safety

finding

of another");

see also, United States v.

________ _____________

Flowers, 995 F.2d 315, 316 (1st

_______

1993)

discussing application

(involving but

United States
______________

(same),

it has

required under

not

v. Johnson,
_______

never

952 F.2d

addressed

the highest

what

565,

of

585 (1st

level

offense level where

of

Cir.

2K1.4);

Cir. 1991)

knowledge

is

the substantial

risk was created knowingly by the defendant.

Turning to our fellow circuits,

Circuit, and

later the Eleventh Circuit,

of "knowingly" as used

applying

Karlic, 997
______

MPC's

can

death

2K1.4.

adopted the definition

in the Model Penal Code (the

"MPC") when

See Honeycutt, 8 F.3d at 787; United States v.

___ _________
_____________

F.2d 564,

569 (9th

Cir. 1993).

Ninth

Circuit held

definition,29 the

be found to have

or serious

we note that the Ninth

'knowingly' created a

bodily

defendant was aware that

injury

under

Drawing from

that "a

the

defendant

substantial risk of

2K1.4

only

a substantial risk of death

if

the

or serious

____________________

29
that:

The Model

Penal Code's

definition of

"knowingly" provides

A person acts knowingly with respect to a

material element of an offense

when: . .

.
(ii) if the element involves a
his

conduct,

he

is aware

result of

that

it

is

practically certain that his conduct will

cause such a result.

Model Penal Code

________________
states that

"[w]hen knowledge of

fact is an element
if

a person

2.02(2)(b) (1985).

The Model Penal Code also

the existence of

of an offense, such knowledge

is aware of

a high

probability of

unless he actually believes it does not exist."

2.02(7) (1985).

-44-

a particular

is established

its existence,

Model Penal Code

________________

bodily

injury

was

criminal act."

F.3d at 787.

'practically

Karlic, 997
______

We

certain' to

F.2d at 569;

note that other courts have neither

it unnecessary

conclude from

the facts whether

created a substantial

For example,

1993),

the

where the

risk of

court found

business hours which put

that a

explicitly

his actions

serious bodily

Markum, 4 F.3d 891

______

fire

could clearly

the defendant knew

in United States v.
_____________

the

definition, apparently

district court

death or

from

accord, Honeycutt,
______ _________

defined "knowingly" nor adopted the MPC's

finding

result

set with

injury.

(10th Cir.

gasoline during

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

substantial risk of

896-97.

Similarly,

death or serious bodily

in United States v. Turner,

______________
______

(6th Cir.), cert. denied, 114

_____________

court concluded

injury."

S. Ct. 282

2K1.4(a)(1)(A) or

(B).

As

995 F.2d

(1993), the

that defendant's actions could

Id. at
___

1357

district

fit under either

to the defendant's

knowledge, the

court found that defendant knowingly created the substantial risk

given

that

building

were likely

cause the

Turner
______

placing

people in

the

to

residence

be asleep

fire to spread

quickly.

adjacent to

and windy

Id. at
___

the

burning

conditions would

1365.

The

court in

also found that defendant "should have known" that he was

firefighters at

substantial risk

by committing

the

arson

in weather

conditions that

fire extremely difficult.

would make

extinguishing the

Id.
___

-45-

As

this

relevant

distinct

approaches, we

question

of

hypothetical

"knowledge"

find

to

case

law

provides

it helpful

recall

knowledge continuum"

is

that

least

two

when considering

the

"the

marked

by

at

length of

the

"constructive

knowledge"

various

at one end and

"gradations,"

"actual knowledge" at

such as

"notice

of

the other with

likelihood" in

"poorly charted area that stretches between the poles."

the

Spinney,
_______

65 F.3d at 236-37 (discussing the continuum in the context of the

"shared

knowledge"

requirement

abetting armed robbery).

certainty"

(noting

would seem

that

knowledge").

knowledge anywhere

aiding

most

akin to

knowledge,

inclined to

"actual

after

conclude

"practical

knowledge."

all,

is

that a

and

Id.
___

certain

showing of

along this continuum satisfies application of

2K1.4(a)(1)(A).30

with

of

In terms of this continuum,

"[a]ctual

We are

in prosecution

the guidelines'

This

approach

mandate that

would

be consistent

a meaningful

made between the two highest base offense levels as

both

distinction be

well as with

the

"common

sense"

approach

Medeiros, 897 F.2d at 20.

________

we

need not

addition

to

we endorsed

in

That said, however,

definitively resolve

"actual knowledge,"

what level

is

Medeiros.
________

at this

juncture

of knowledge,

required.

Even

See
___

in

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
known that a further fact existed."
contrast, "[a]ctual
need

for

inference;

evidence which,
person

in

question."

suggests the

if credited,

question

Spinney, 65 F.3d at 236.

_______

knowledge, as the term

it

knew

of

least should have

implies, reduces the

presence

of

establishes conclusively
the

Id.
___

-46-

In

existence

of

the

particular

that the
fact

in

without deciding

that, for

had to

be "aware

bodily

injury

was

criminal act,"

contention

that a

2K1.4(a)(1)(A)

substantial risk

'practically

Karlic, 997
______

that

the

of death or

certain' to

F.2d at

district

to apply, Appellant

result

569, we reject

court's

findings

serious

from

the

Appellant's

are

clearly

erroneous.

On

clearly

appeal, Appellant

erred

substantial

in

risk,

argues that

finding

that

because

"[it]

he

the

knowingly

made

no

district court

created

finding

that

the

substantial

risk

of

'practically certain'

Appellant contends

death

to

the

vapors

that the

could

serious

result from

restaurant was occupied at

that

or

does not

Appellant

was

show by

injury

was

[attempted

arson]."

district court's findings

that the

the time the gasoline was

have

been

insufficient for the application of

record

his

bodily

accidentally

poured and

ignited

is

2K1.4(a)(1)(A), because the

a preponderance

"practically certain"

that

of the

an

evidence that

accidental cause

could have started the fire.

Giving due deference to

guidelines

to the facts, we conclude that the district court did

not clearly err in finding that

was

the court's application of the

substantial risk

of

Appellant "knew that . . . there

death

or

serious

bodily

injury"

(Sentencing Transcript at 23).

note that

In arriving at our conclusion, we

facts contained in a presentence report ordinarily are

considered reliable evidence for sentencing purposes.

States
______

v. Morillo,
_______

8 F.3d

870, 872 (1st

Cir. 1993).

See United
___ ______

Indeed,

-47-

district courts possess "broad

is, or is

not, sufficiently

discretion to determine what data

dependable to be

used in

imposing

sentence."

Cir.

United States v.
_____________

1992).

Tardiff, 969 F.2d

_______

This is particularly true where, as here, Appellant

offered no evidence to suggest

report's facts.

The

attempt,31

1283, 1287 (1st

an inaccuracy in the

presentence

Id., 8 F.3d at 873 (collecting cases).

___

record

shows

Appellant knew

that,

that

at

the time

at least

of

two other

the

first

employees,

including Schaller (who at that time was not a participant in the

offense),

were in

noted, "[i]t

the

is difficult to

knowing creation of a

bodily injury."

of

the restaurant.

As

the court

imagine a clearer

substantial risk of

in Honeycutt
_________

illustration of

death or serious

Honeycutt, 8 F.3d at 787 (affirming application

_________

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,

a confined

and

in

area atop the Galleria II at a time when both patrons

employees were inside.

flammable liquid and

specific

intent of

response

to

Appellant knew gasoline was a highly

he arranged

lighting a

Appellant's

for it

to be

fire after

"practical

poured for

the

business hours.

In

certainty"

argument,

the

____________________

31

We address the first

count (the attempt to start

the

attic with paper) even though Appellant's brief only focuses

on the second count (involving the gasoline).

-48-

a fire in

district court found that "the fact that [Appellant] . . . wanted

to [ignite] the fire

that he

outside of business hours,

knew of the risk"

those who would respond

18).

Contrary

to people inside the

to the fire.

to Appellant's

suggests . .

building and to

(Sentencing

contentions, these

Transcript at

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

(Sentencing Transcript

at 20),

we

be blown

to "smithereens,"

remind Appellant

-- as

the

district court did more than once -- that the guidelines call for

the

knowing

creation

of

substantial

risk.
____

Here,

preponderance of the evidence supports the finding that Appellant

was

aware that

a substantial

injury

was "practically

highly

flammable accelerant

risk of

certain" to

for

death or

result from

purposes of

serious bodily

the use

starting a

of a

fire.

Appellant presented no evidence to rebut the preponderance of the

evidence

presented

irrelevant

that an

whether or

on

this

not

accidental ignition
__________

point.

Appellant was

would occur

Furthermore,

we

find

"practically certain"

given that

the record

supports

a finding that he was "practically certain" that he was

creating a substantial

risk of death
____

Finally, the district court

argument that he did

or explosion actually

("[t]he fact that

or serious bodily

injury.

again correctly rejected Appellant's

not knowingly create a risk because no fire

occurred.

See Honeycutt, 8
___ _________

fortuitously no one was injured

-49-

F.3d at

787

and extensive

damage did

not result does not

further [A]ppellant's contention

that he did not knowingly create a substantial risk.").

is

Appellant's

actions.

state of

mind, not

Id.; cf. Medeiros,

___ ___ ________

the

897 F.2d at

defendant "specifically intended to cause

At issue

actual results

of his

20 (finding that

the kind of fire

the

that

recklessly would endanger others").

C.
C.

Two-Level Enhancement for Leadership Role

Two-Level Enhancement for Leadership Role

Finally,

Appellant

which the district court

offense.

See U.S.S.G.
___

appeals the

two-level enhancement

imposed for his leadership role

3B1.1(c).

in the

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.

(citations omitted).

1992), cert. denied, 506 U.S.

____________

1069 (1993)

Appellant argues that he and Schaller were,

at best, "equals" and nothing more than "partners in crime."

Under U.S.S.G.

warranted if

3B1.1(c), a two-level enhancement

the sentencing

court determines that

enterprise involved at least

exercised

control

organizing the

over,

States v.
______

purposes of

Akitoye,
_______

or

was

otherwise

923 F.2d

221,

responsible

least one other

See, e.g., Morillo,

___ ____ _______

for

individual in

8 F.3d at 872; United

______

227 (1st

determining the overall number

defendant himself may be

the criminal

two participants, and the defendant

activities of, at

committing the crime.

is

Cir.

1991).

For

of participants, the

counted as one participant;

"[b]ut, he

must

exercise control

over at

least

one other

participant to

-50-

warrant an upward adjustment."

determining whether

Morillo, 8 F.3d at 872

_______

a defendant is

an organizer or

Sentencing Guidelines direct judges' attention

including "the exercise of

of

participation

in

the

n.13.

In

leader, the

to seven factors,

decision making authority, the nature

commission

of

the

offense,

the

recruitment of accomplices, the

of

the fruits

of

the crime,

planning or organizing the

illegal

activity,

exercised over

Beltr n,
_______

the

at

the

111-13

rather

government must bear the

degree of

degree

than

of

control

3B1.1,

("This

share

participation

offense, the nature and scope

others." U.S.S.G.

50 F.3d

representative

and

claimed right to a larger

and

in

of the

authority

comment.; see Tejada___ _______

list

is

intended

exhaustive.").

to

Finally,

burden of proving that an

be

the

upward role-

in-the-offense adjustment is warranted. Morillo, 8 F.3d at 872.

_______

Here,

Appellant and

Schaller

participated in the attempted arson of the Galleria II.

Contrary

to

Appellant's

it is

undisputed

contention

that

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

unsuccessful

else

attempt

to

commit

to start

Schaller poured the gasoline

Appellant

when

he

was

argument,

these factual

the

a fire

offense

in

and

after

the attic;

his

and that

at Appellant's request and informed

finished.

findings

-51-

Contrary

satisfy the

to

Appellant's

requirements for

applying

that

We are unpersuaded by Appellant's

does not show

supervision,

Appellant's

recruitment

it

exercise

of

supervision over him.

certainly

of

shows

decision

accomplices,

and

the

--

While it may not

at

finding

determination

no

of

clear

error

Appellant's

court's two-level enhancement.

12, 18 (1st

Cir. 1992) (noting

minimum

--

making

authority,

his

greater

degree

his

participation in planning and organizing the two

Thus,

argument

the fact that Appellant asked or persuaded Schaller to pour

gasoline

show

3B1.1(c).

in

role,32 we

the

arson attempts.

district

affirm

of

the

court's

district

United States v. Garc a, 954 F.2d

_____________
______

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

stood to gain

"[t]he finding that [Appellant]

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

"claimed

right to a

a fire at the Galeria II

larger share of

and, thus, had a

the fruits of

the crime."

U.S.S.G.

3B1.1, comment.

the district
when

court neither made,

it concluded

justified.
arguendo
________

We need not address this argument as

See
___

nor relied on,

that adjustment

under U.S.S.G.

Sentencing Transcript, page

that such a "finding" were

nonetheless affirm

28.

3B1.1
Even

was

assuming

clearly erroneous, we would

the district court's adjustment

evidence of Appellant's role in the offense.

-52-

this "finding"

based on the