United States v. Mitchell

July 12, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2226

UNITED STATES,
Appellee,

v.

JAMES L. MITCHELL,
Defendant - Appellant.

ERRATA SHEET

The opinion of this Court issued on June 5, 1996, is amended
as follows:

Page 6, paragraph 1, is amended to read:

Traditionally, in the context of a
motion to suppress, we have reviewed the
district court's findings of fact, as well as
any mixed findings of law and fact, for clear
error. See United States v. Schiavo, 29 F.3d

6, 8 (1st Cir. 1994); United States v.

Rodr guez-Morales, 929 F.2d 780, 783 (1st

Cir. 1991), cert. denied, 502 U.S. 1030

(1992). A recent Supreme Court case,
however, determines that "as a general matter
determinations of reasonable suspicion and
probable cause should be reviewed de novo on

appeal." Ornelas v. United States, 116

S. Ct. 1657, 1663 (1996) (noting that
findings of historical fact are reviewed only
for clear error and that "due weight" should
be given "to inferences drawn from those
facts by resident judges and local law
enforcement officers"). Therefore, to the
extent that our analysis turns on making
those determinations, our review is de novo,

as is our review of the district court
findings of law. See Mart nez-Molina, 64

F.3d at 726.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2226

UNITED STATES,

Appellee,

v.

JAMES L. MITCHELL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Walter B. Prince, by Appointment of the Court, with whom

Peckham, Lobel, Casey, Prince & Tye was on brief for appellant.

Kevin J. Cloherty, Assistant United States Attorney,

Donald K. Stern, United States Attorney, and Sheila W. Sawyer,

Assistant United States Attorney, were on brief for appellee.

June 5, 1996

TORRUELLA, Chief Judge. The defendant in this arson
TORRUELLA, Chief Judge.

case stands convicted by a jury of conspiracy and arson under 18

U.S.C. 371 and 844(i), respectively. For the reasons stated

herein, we affirm the decision of the district court on all

points.

I. BACKGROUND
I. BACKGROUND

On the evening of February 6, 1989, the Boston Fire

Department responded to a multiple-alarm fire at 295-297 Franklin

Street (the "Building"), in Boston, which was owned by Jack

Gateman ("Gateman"). At that time, the defendant, James L.

Mitchell ("Mitchell"), was a tenant occupying the Building's

second, third and fourth floors, where he and his partner, Allen

Gallant ("Gallant"), ran a private social club known as "Club

297" (the "Club"). The Club had been ordered closed by the City

of Boston for violation of City codes in January 1989. On the

day of the fire, several men, including Ronald Wallace

("Wallace"), had been working on repairs at the Club. Wallace

testified at trial that during the course of that day Mitchell

told him he would pay him $11,000 to set fire to the Building,

making an initial payment. Mitchell returned to his home in

Vermont, while Wallace returned to the Club. Mitchell called the

Club from his car telephone, and spoke to Wallace, who testified

that Mitchell asked him whether he would set the fire. After the

phone call, Wallace went to the fourth floor of the Building and

set some mattresses stacked there on fire. He and the other men

in the Club fled the Building.

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Over the next months, Mitchell wired Wallace sums of

money through Western Union. Evidence was entered that Gallant

reported the loss the Club suffered in the fire to the Club's

insurance broker, and pursued the claim through an insurance

broker. Testimony at trial established that some $59,400 was

paid out on the Club's policies, most of which went to the

Internal Revenue Service.

In November 1991, Mitchell was charged under a twenty-

two count indictment with conspiracy, arson, use of fire to

commit a felony, and wire fraud. He was prosecuted on six of

those counts. After a jury trial, he was found guilty on the

conspiracy and arson charges, but acquitted of the remaining

counts. This appeal ensued.

II. ADMISSION OF SEIZED EVIDENCE
II. ADMISSION OF SEIZED EVIDENCE

The district court adopted the report and

recommendation of the magistrate judge, who found the following

facts. See United States v. Mart nez-Molina, 64 F.3d 719, 723

(1st Cir. 1995) ("We recite the facts adduced at a suppression

hearing in the light most favorable to the district court's

ruling to the extent that they derive support from the record and

are not clearly erroneous."). On the night of the fire,

Lieutenant Paul R. LeBlanc ("Lt. LeBlanc") of the Fire

Investigation Unit reported to the scene of the fire. After it

was "put down," within an hour or so of being reported to the

Fire Department at 9:15 p.m., Lt. LeBlanc entered the premises,

along with two associates, in order to determine the cause and

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origin of the fire. He seized carpet samples and sections of

stair rises, later entered in evidence at trial. Irregular burn

patterns prompted him to suspect that the fire was not

accidental, and that it originated on the fourth floor. Adequate

photographs could not be taken, however, since there was no light

and the water on the floor precluded reliable flash photography.

The following morning, between 8:00 and 9:00 a.m., Lieutenant Roy

Burrill ("Lt. Burrill"), also of the Fire Investigation Unit, was

sent to the site without a warrant. He seized two sections of

flooring from the fourth floor. A third search was conducted by

First Security Company, a private investigation company hired by

Gateman to determine the cause of the fire. They also seized

samples from the fourth floor.

On appeal, Mitchell challenges the trial court's

admission of the evidence seized by Lt. Burrill, on the basis

that there were no exigent circumstances justifying his entrance

without a warrant.1

1 Although he does not clearly state that his appeal is limited
to the evidence admitted from Lt. Burrill's search, Mitchell's
argument does not address the other two searches, and so we limit
our analysis to Lt. Burrill's search and seizure. We note in
passing, however, that even if Mitchell has not waived the right
to object to the admission of the evidence from the other
searches, see infra, the district court undoubtedly did not err

in admitting that evidence, for the very reasons pronounced by
the magistrate judge. First, Lt. LeBlanc's search was
constitutional under the rationale of Michigan v. Tyler, 436 U.S.

499, 510 (1978) ("Officials need no warrant to remain in a
building for a reasonable time to investigate the cause of a
blaze after it has been extinguished."). Second, First Security
Company's search was a purely private search and seizure that did
not involve official action; as such, it does not come under the
Fourth Amendment, which does not proscribe unreasonable searches
and seizures by private persons. See United States v. Jacobsen,

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A. Waiver
A. Waiver

The United States claims that Mitchell waived the right

to appeal the admission of this evidence by failing to object

within ten days to the magistrate judge's report and

recommendation on the defendant's Motion to Suppress the Physical

Evidence. See Rule 3(b), Rules for United States Magistrates in

the United States District Court for the District of

Massachusetts. As the report and recommendation of the

magistrate judge itself pointed out, we have repeatedly indicated

that failure to comply with Rule 3(b) precludes review by this

court. See, e.g., United States v. Valencia-Copete, 792 F.2d 4,

6 (1st Cir. 1986); United States v. Vega, 678 F.2d 376, 379 (1st

Cir. 1982) ("There can be no appeal from a magistrate's report

and recommendation unless objections are filed thereto.").

Mitchell now maintains that his objection to the

evidence seized by Lt. Burrill has been saved from waiver despite

his failure to object because, subsequent to the report and

recommendation, the district court issued an order stating it

would reconsider the suppression issue as regards the evidence

seized by Lt. Burrill. In that order, the district court

requested, among other things, that Mitchell identify the

portions of memoranda and evidence the court should consider in

deciding the motion to suppress the evidence seized. All of the

seized evidence offered was admitted at trial. We need not delve

into the intricacies of whether the district court order

466 U.S. 109, 113 (1984).

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effectively revived Mitchell's motion to suppress the evidence

seized by Lt. Burrill, however, as we find that the district

court did not err in admitting the disputed evidence.

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B. Analysis of Search and Seizure Issues
B. Analysis of Search and Seizure Issues

Traditionally, in the context of a motion to suppress,

we have reviewed the district court's findings of fact, as well

as any mixed findings of law and fact, for clear error. See

United States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994); United

States v. Rodr guez-Morales, 929 F.2d 780, 783 (1st Cir. 1991),

cert. denied, 502 U.S. 1030 (1992). A recent Supreme Court case,

however, determines that "as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de

novo on appeal." Ornelas v. United States, 116 S. Ct. 1657, 1663

(1996) (noting that findings of historical fact are reviewed only

for clear error and that "due weight" should be given "to

inferences drawn from those facts by resident judges and local

law enforcement officers"). Therefore, to the extent that our

analysis turns on making those determinations, our review is de

novo, as is our review of the district court findings of law.

See Mart nez-Molina, 64 F.3d at 726.

Our analysis is framed by two Supreme Court decisions:

Michigan v. Tyler, 436 U.S. 499 (1978), and Michigan v. Clifford,

464 U.S. 287 (1984). The basic Fourth Amendment framework is

clear. "Courts have consistently followed 'one governing

principle' in interpreting [the Fourth Amendment]: 'except in

certain carefully defined classes of cases, a search of private

property without proper consent is 'unreasonable' unless it has

been authorized by a valid search warrant.'" Mann v. Cannon,

731 F.2d 54, 58 (1st Cir. 1984) (quoting Camara v. Municipal

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Court, 387 U.S. 523, 528-29 (1967)). Nonetheless, "a warrantless

entry by criminal law enforcement officials may be legal when

there is compelling need for official action and no time to

secure a warrant." Tyler, 436 U.S. at 509. Mitchell's core

contention here is that there were no such exigent circumstances

in the present case, and so Lt. Burrill's warrantless search was

unconstitutional, and the evidence he seized should have been

suppressed.

The analysis in Michigan v. Tyler controls our

decision. In Tyler, a fire broke out in a furniture store

shortly before midnight; the fire had been reduced to "smoldering

embers" when the Fire Chief reported to the scene at 2:00 a.m.

Id. at 501. He concluded that the fire was possibly the result

of arson, and called a police detective, who took some

photographs, but "abandoned his efforts because of the smoke and

steam." Id. at 502. After a brief survey through the rest of

the building to look for further evidence of the cause of the

fire, the Chief and police detective left the site. Four hours

later, the Chief returned with the Assistant Chief, whose task it

was to determine the origin of all fires in the township. The

fire was out, and the building was empty. They quickly left,

returning with the police detective around 9:00 a.m. They found

suspicious burn marks, not visible earlier, and took samples of

carpet and stairs.

Rejecting the premise that "the exigency justifying a

warrantless entry to fight a fire ends, and the need to get a

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warrant begins, with the dousing of the last flame," id. at 510,

the Court found the two searches conducted on the morning after

the fire were constitutionally permitted. After noting that the

investigation on the night of the fire was hindered by the

darkness as well as the steam and smoke, the Court found that the

fire officials

departed at 4 a.m. and returned shortly
after daylight to continue their
investigation. Little purpose would have
been served by their remaining in the
building, except to remove any doubt
about the legality of the warrantless
search and seizure later that same
morning. Under these circumstances, we
find that the morning entries were no
more than an actual continuation of the
first . . . .
Id. at 511.

The facts here closely parallel those of Tyler.

Lt. LeBlanc entered the scene after the fire was "put down," and

within roughly an hour of the time the fire was reported, in

order to determine the cause and origin of the fire. The

investigation was hampered by the lack of light and by the

presence of water on the floor: photographs could not be taken.

The following morning, between 8:00 and 9:00 a.m., roughly twelve

hours after the fire had been reported, Lt. Burrill entered the

scene in order to take additional samples. He removed the water

and debris from the fourth floor, and then seized two sections of

flooring, the challenged evidence. These facts speak for

themselves: Lt. Burrill's search and seizure was clearly a

continuation of the first search by Lt. LeBlanc. Unlike in

Tyler, of course, the same individual did not conduct both

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searches, but both fire officials were of the same Fire

Investigation Unit. Ultimately, as in Tyler, the "investigation

of the fire's origin was [] temporarily suspended on account of

the conditions on the scene and resumed at the first opportunity

when the conditions hampering the investigation subsided."

Clifford, 464 U.S. at 301.

That Lt. Burrill's morning entrance onto the premises

was in fact a continuation of the nighttime search is underscored

by the distinctions the Court drew between its decision in

Clifford and its Tyler holding. In Clifford, a fire broke out in

a private residence and the fire department reported to the scene

at about 5:42 in the morning. The fire was extinguished, and the

fire officials and police left the premises at 7:04 a.m. At

about 1:00 p.m. that afternoon a fire investigator arrived at the

scene, having been informed that the fire department suspected

arson. Despite the fact that the house was being boarded up on

behalf of the out-of-town owners, the Cliffords, and despite

their knowledge that the Cliffords did not plan to return that

day, the fire investigator and his partner searched the house.

After determining that the fire had been set in the basement, and

how, the investigators searched the entire house, taking

photographs. Id. at 289-91. In finding that the challenged

search by the fire investigator was not a continuation of an

earlier search, as in Tyler, and in distinguishing between the

two cases, the Court noted:

Between the time the firefighters had
extinguished the blaze and left the scene

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and the arson investigators first arrived
about 1:00 p.m. to begin their
investigation, the Cliffords had taken
steps to secure the privacy interests
that remained in their residence against
further intrusion. These efforts
separate the entry made to extinguish the
blaze by that made later by different
officers to investigate its origin.
Second, the privacy interests in the
residence -- particularly after the
Cliffords had acted -- were significantly
greater than those in the fire-damaged
furniture store [in Tyler], making the

delay between the fire and the mid-day
search unreasonable absent a warrant,
consent, or exigent circumstances.

Id. at 296. These facts play no role here: there was no

evidence of an effort to secure the burned-out premises, and the

heightened privacy interests a property owner has in a home are

not present. See id. at 297 (noting that "privacy interests are

especially strong in a private residence."). Unlike the private

dwelling in Clifford, this was a commercial property. Mitchell

points out that he was in Vermont at the time of the fire in the

premises he had leased; however, he made no effort to arrange for

the premises to be closed off, unlike the defendants in Clifford,

who were similarly away from their home. These facts permitted

the magistrate judge to conclude that the search by Lt. Burrill

was merely a continuation of Lt. LeBlanc's search, and, thus,

that "there was simply nothing unreasonable, in Fourth Amendment

terms, to [sic] reentering the building and completing the

already commenced investigation of the cause and origin of the

fire when circumstances -- i.e., adequate lighting provided by

daylight and removal of the debris and water -- first reasonably

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permitted." (Report and Recommendation, page 11).

In Clifford the Court laid out three factors for

analyzing the constitutionality of warrantless searches of fire-

damaged premises:

whether there are legitimate privacy
interests in the fire-damaged property
that are protected by the Fourth
Amendment; whether exigent circumstances
justify the government intrusion
regardless of any reasonable expectation
of privacy; and, whether the object of
the search is to determine the cause of
the fire or to gather evidence of
criminal activity.

Clifford, 464 U.S. at 291; see Mann, 731 F.2d at 59-60 (weighing

the Clifford factors in evaluating warrantless entry onto private

premises for health and safety reasons). First, as noted,

Mitchell can have had few privacy interests in the Building.

"Privacy expectations will vary with the type of property, the

amount of fire damage, the prior and continued use of the

premises, and in some cases the owner's efforts to secure it

against intruders." Clifford, 464 U.S. at 292; see Mann, 731

F.2d at 59 (noting that privacy considerations in virtually

abandoned residence used as storehouse were minimal).

Mitchell focuses his argument on the second factor,

exigent circumstances. As he notes, at the time Lt. Burrill

entered the grounds, the fire was out, there were no people in

the building, and there was no danger of further damage, or of

flammable materials being present. However, the Court has

clearly established that "officials need no warrant to remain in

a building for a reasonable time to investigate the cause of a

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blaze after it has been extinguished." Tyler, 436 U.S. at 510;

see Clifford, 464 U.S. at 293 (noting that "[b]ecause determining

the cause and origin of a fire serves a compelling public

interest, the warrant requirement does not apply in such

cases."). Because the magistrate judge properly found that Lt.

Burrill's entrance onto the premises was in fact a continuation

of Lt. LeBlanc's search, and there is no question as to that

search's constitutionality, Mitchell's exigent circumstances

argument fails. Indeed, this is precisely the level of exigency

-- the fire was extinguished, the building was empty, and

conditions had hampered investigations the night before -- whose

constitutionality the Supreme Court upheld in Tyler.

The third Clifford factor examines the purpose of the

search. Here, the district court adopted the magistrate judge's

finding that Lt. LeBlanc entered the site to determine the cause

and origin of the fire, and that Lt. Burrill "was dispatched to

the scene for the purpose of taking additional samples." The

lower court concluded that there was no showing that the fire

department suspected arson when Lt. Burrill was sent to the scene

of the fire. Indeed, Lt. LeBlanc was only one of three

investigators on the scene, and no evidence was presented that

the other investigators shared his opinions, much less that any

of them communicated their impressions to Lt. Burrill.

In his brief, however, Mitchell seems to challenge that

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finding, stating that Lt. Burrill2 "entered the premises without

a warrant specifically to look for and seize evidence of arson."

(Brief of Appellant, p. 14). Mitchell's counsel contended at

oral argument that the magistrate judge's finding that Lt.

Burrill did not suspect arson was improbable, and that common

sense should indicate that Lt. LeBlanc communicated his findings

to Lt. Burrill. We disagree. Lt. Burrill testified that as soon

as he started his shift he was sent to the scene, and that

"[f]requently after a fire has occurred at night, they send the

day crew to the scene . . . because of the benefit of daylight,

it [is] easier to get samples." (Day 1, p. 96). Lt. LeBlanc, in

turn, testified that the Fire Investigation Unit reported to the

fire because it was a multiple-alarm fire, to which the Unit's

response is automatic. Based on this testimony and our

deferential standard of review, we see no reason to find that the

court erred in its finding of fact.

Based on the above, we affirm the district court's

refusal to suppress the evidence from Lt. Burrill's search.

III. ADMISSION OF THE TAPED CONVERSATIONS
III. ADMISSION OF THE TAPED CONVERSATIONS

Prior to and after the fire, Mitchell tape-recorded a

series of telephone conversations he had with other people,

including Wallace and Gallant, without their consent or

knowledge. Excerpted portions of three of these tapes were

2 In fact, defendant's brief refers to nameless "Boston Fire
Department Inspectors" who entered the building on the day
following the fire. As Lt. Burrill is the only official fitting
that description who seized evidence at issue here, we assume
that defendant was describing him.

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admitted at trial. On appeal, Mitchell argues that the district

court committed reversible error in limiting the use of the

tapes, for two reasons. First, he maintains, the taped

conversations were admissible to show bias and inconsistent

testimony. Second, he contends that all the tapes, not just

fragments of them, were admissible for purposes of impeachment.

As he does not specify, in either his brief or at oral argument,

which tapes he actually seeks to enter, why each portion should

be played, or the purpose for which each excerpt not previously

admitted should now be allowed, we limit our discussion to those

tapes actually entered at trial.3

3 Mitchell's counsel stated that there were twenty-one tapes in
all, with roughly twenty-eight hours of recordings. Three tapes
were actually entered at trial, but two other tapes were
discussed. First, defense counsel offered a tape of a
conversation between Mitchell and David Collins, an insurance
broker, in his cross-examination of Collins during voir dire
outside the jury's presence, in order to refresh his recollection
and knowledge. At the prosecution objection to the tape being
played, and after some discussion, the court excused the witness
for the day so that the prosection could hear the tape. The next
day, the following colloquy ensued (Mr. Prince is defense
counsel; Mr. Cloherty is the prosecutor):

THE COURT: . . . . Now, with regard
to the Collins' [sic] telephone call,
have you heard that tape?
MR. CLOHERTY: Yes, Your Honor.
MR. PRINCE: We have resolved that
issue, Your Honor.
MR. CLOHERTY: Mr. Prince isn't going
to play it. That's withdrawn.
THE COURT: All right.

(Day 9, p. 12). Since the tape was withdrawn, we do not consider
it here. Similarly, there was some discussion of a tape recorded
on February 8, 1989, but defense counsel ultimately stated to the
court that he would not be offering anything from that tape, and
so we do not address it here.

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A. The Legal Framework
A. The Legal Framework

A party waives a right when it makes an "'intentional

relinquishment or abandonment'" of it. United States v. Olano,

507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.

458, 464 (1938)); see United States v. Marder, 48 F.3d 564, 571

(1st Cir.), cert. denied, 115 S. Ct. 1441 (1995). However, if a

defendant merely fails to make a timely assertion of that right,

only forfeiture results. Olano, 507 U.S. at 733; see Fed. R.

Crim. P. 52(b). The distinction is a key one, for

[m]ere forfeiture, as opposed to waiver,
does not extinguish an "error" under Rule
52(b). . . . If a legal rule was
violated during the District Court
proceedings, and if the defendant did not
waive the rule, then there has been an
"error" within the meaning of Rule 52(b)
despite the absence of a timely
objection.

Id. at 773-74. In short, where there was forfeiture, we apply a

plain error analysis; where there was waiver, we do not. See

United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994)

(noting that the "'Plain Error Rule' may only be invoked in

instances of 'forfeited-but-reversible error,' . . . . because if

there has been a valid waiver, there is no 'error' for us to

correct."); see, e.g., United States v. de la Cruz-Paulino, 61

F.3d 986, 995 (1st Cir. 1995) (holding that where defendant did

not object to prosecution's use of taped conversations, the issue

was not preserved for appeal, but plain error analysis applied);

Marder, 48 F.3d at 571 (holding that, because there was no

waiver, plain error analysis applied). See generally, United

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States v. Taylor, 54 F.3d 967, 972-73 (1st Cir. 1995) (stating

the policy reasons and rationale for the raise-or-waive rule).4

B. The Tapes
B. The Tapes

1. The February 7, 1989 Tape
1. The February 7, 1989 Tape

Mitchell recorded two conversations between himself and

Wallace on February 7, 1989. Defendant sought to enter portions

from that tape as evidence of prior inconsistent statements. At

a hearing on the admissibility of the tape outside of the jury's

presence, the following colloquy ensued (Mr. Prince is the

defense counsel, Mr. Cloherty the prosecutor).

THE COURT: . . . . Mr. Cloherty, what
is the Government's position on playing
all of the February 7 tape with the
exception of the two edits we discussed?
MR. CLOHERTY: We would want the
entire tape played with the exception of
those edits.
THE COURT: And that remains agreeable
to the defendant?
MR. PRINCE: Yes, Your Honor, and
Mr. Cloherty and I will edit the
conversation.

(Day 5, pp. 112-13). At the start of the next day of trial, the

court asked the attorneys whether the tapes had been "edited to

[their] mutual satisfaction"; Mitchell's counsel did not disagree

when the prosecution stated that they had. (Day 6, p. 5). Nor

4 In United States v. Taylor, we stated that the "raise-or-waive

rule is not absolute. But, rescue missions are restricted to the
correction of 'plain' errors," 54 F.3d at 972, without delving
into the difference between forfeiture and waiver. We therefore
note that the distinction we draw today between them does not
conflict with Taylor, in that Taylor was concerned with failure

to timely object -- i.e., forfeiture. Id. (noting that "a

litigant who deems himself aggrieved . . . ordinarily must object
then and there, or forfeit any right to complain at a later
time.").

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did he object when the tapes were offered.

Clearly, Mitchell has waived any objection to the

court's failure to play the entire tape. Not only did he not

object to the use of the tape, but he affirmatively stated that

he was agreeable to the use of the edited tape -- there was a

"direct inquiry from the court" and an "unequivocal assent" from

counsel for the defense. Marder, 48 F.3d at 571 (holding that

defendant did not waive issue where there was no such clear

colloquy, but merely a failure to object). That action raises

his later silence from mere forfeiture to waiver.

2. The February 1, 1989 Tape
2. The February 1, 1989 Tape

Mitchell next sought to introduce excerpts from a

conversation taped between Mitchell and Gallant prior to the

fire. He offered the dialogue, which discussed re-opening the

Club, as evidence of his then-existing state of mind. See Fed.

R. Evid. 803(3). The court stated that the entire tape could not

be played, on the basis that most of it was irrelevant and

inadmissible. However, the next day, based on a transcript

indicating what excerpts the defendant wanted to use, and which

of those the government objected to, the court admitted all the

excerpts Mitchell requested. Mitchell now appears to contend

that the entire tape should have been admitted.

Had Mitchell merely submitted the entire tape, and the

court only admitted excerpts, the defense's failure to object

that the remainder of the tape was not submitted to the jury may

only have resulted in forfeiture, Olano, 507 U.S. at 733, as

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there may have been no "'intentional relinquishment or

abandonment of a known right,'" and so no waiver. Id. (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). But the defense's

actions went beyond this: Mitchell took an active role in

limiting the portions considered by the district court by

providing the excerpts himself. Ultimately, the court admitted

all the excerpts he submitted. This, paired with his failure to

object, raises his acts to the level of waiver. See Marder, 48

F.3d at 570-71. Indeed, Mitchell does not offer any argument as

to why we should not deem the portions not actually offered as

waived. We will not look beyond the waiver and ask whether the

court committed plain error.

3. The February 11, 1989 Tape
3. The February 11, 1989 Tape

The third tape discussed at trial was a February 11,

1989, recording of Mitchell's conversation with his partner

Gallant about whether the Club had insurance at the time of the

fire. At a hearing on the tape's admissibility prior to

Gallant's testimony, the court characterized it as "a really

transparent effort by the defendant, Mr. Mitchell, knowing that

he was accused of setting the arsons [sic], . . . [to say] all

sorts of things that would be very inadmissible and also things

of doubtful admissibility on the stand." (Day 9, p. 7).

Accordingly, the court ruled that the tape was inadmissible to

prove state of mind under Fed. R. Evid. 803(3), as the

conversation occurred after the fire. The defense objected on

the basis that the tape was in fact relevant to the defendant's

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state of mind regarding the alleged wire fraud, and the court

reconsidered its ruling. Accordingly, it requested a marked-up

transcript of the portions of the tape the defense sought to

admit on that basis, so it could "see what is at issue." (Day 9,

p. 141).

The next day, the court held that the first of the two

marked pages defendant submitted could be admitted; it was read

to the jury later that day, without a limiting instruction. The

court also allowed the second submitted page to be entered, but

as a prior inconsistent statement, and gave a limiting

instruction to the jury. Defense counsel did not object to the

court's rulings. For the same reasons discussed above, as the

only portions of the tape the defense actually submitted to the

court were entered, and there was no objection entered, we find

that the defense waived any appeal that the remainder of the tape

should have been admitted. See id.

As we find that the defendant has waived the right to

argue that these three tapes should have been admitted in their

totality, we need not consider his contentions that they were

admissible to show bias and inconsistent testimony or for

purposes of impeachment.

IV. THE JURY INSTRUCTIONS
IV. THE JURY INSTRUCTIONS

Mitchell challenges the district court's jury

instructions regarding the conspiracy charge. We review the

propriety of jury instructions for abuse of discretion. United

States v. Cassiere, 4 F.3d 1006, 1022 (1st Cir. 1993); United

-20-

States v. Campusano, 947 F.2d 1, 5 (1st Cir. 1991). Accordingly,

"[w]e must look at the instructions in light of the evidence and

determine whether they 'fairly and adequately submit[] the issues

in the case to the jury.'" United States v. Picciandra, 788 F.2d

39, 46 (1st Cir.) (quoting United States v. Fishbach and Moore,

Inc., 750 F.2d 1183, 1195 (3d Cir. 1984), cert. denied, 470 U.S.

1029 and sub nom. Sargent Elec. Co. v. United States, 470 U.S.

1085)), cert. denied, 479 U.S. 847 (1986). For the reasons

stated below, we find the district court did not abuse its

discretion in making its instructions to the jury.

Count I of the indictment alleged that Mitchell

conspired with Wallace to violate the arson statute, see 18

U.S.C. 844(i), and the wire fraud statute, see 18 U.S.C.

1343.5 The charge was made in the conjunctive. The district

court, however, instructed the jury in the disjunctive:

The first count charges a conspiracy
to commit arson and a conspiracy to
commit wire fraud.

In order to prove the defendant is
guilty of Count 1, the government doesn't
have to prove that any demonstrated
conspiracy had both laws or a violation
of both laws as its object.

It's sufficient that the government
prove either the conspiracy to commit
arson or the conspiracy to commit wire
fraud.

But you have to unanimously agree.
That is essential. When you deliberate,

5 The remaining five counts charged Mitchell with arson, wire
fraud, and use of a fire to commit a felony. See 18 U.S.C.

844(i), 1343, & 844(h).

-21-

all 12 of you have to agree on
everything. So it would be insufficient
if six of you thought there was a
conspiracy to commit arson and six of you
thought there was a conspiracy to commit
wire fraud. You have to unanimously
agree, or try to.

But if you agree unanimously that a
conspiracy to violate one of those
statutes has been proven beyond a
reasonable doubt, that's sufficient to
find the defendant guilty on Count 1.

(Day 12, pp. 159-60).6 Mitchell contends that the court's

instruction that finding him guilty of one of the two

conspiracies is sufficient impermissibly broadened the

allegations in Count I so as to create, in effect, two conspiracy

counts.7

In answering defendant's argument we take our lead from

the Supreme Court. In Griffin v. United States, 502 U.S. 46

(1991), the petitioner was charged with a conspiracy alleged to

have two objects, but was implicated in only one of those. The

court instructed the jury that it could return a guilty verdict

against petitioner if it found that she had participated in

either of the two objects, and the jury returned a general

verdict of guilty, without specifying on which count it relied.

Id. at 47-48. Faced with the question whether the verdict should

6 Mitchell specifically objected to the instruction at the close
of the charge.

7 In making this argument, Mitchell adds that the jury was left
to speculate as to whether Mitchell conspired to commit arson
with Wallace, to commit wire fraud with Wallace, and possibly
Gallant, or to commit both charges involving Gallant. Neither
the indictment nor the jury instructions mention Gallant,
however.

-22-

be set aside because the evidence was insufficient for one of the

objects, the Court affirmed the verdict. In so doing, it relied

on a common law rule dating back to pre-revolutionary England

stating that "'[w]hen a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive, . . . the

verdict stands if the evidence is sufficient with respect to any

one of the acts charged.'" Id. at 56-57 (quoting Turner v.

United States, 396 U.S. 398, 420 (1970)); see United States v.

Nieves-Burgos, 62 F.3d 431, 436 (1st Cir. 1995) (discussing

Griffin and the relevant case law).8 Accordingly, in United

States v. Lanoue, 71 F.3d 966 (1st Cir. 1995), where the district

court instructed the jury "that it could convict Lanoue of

conspiracy if it found he conspired to commit any one or more of

six object offenses" listed in the conspiracy count, id. at 979,

we held that, as there was sufficient evidence for one of the

8 There is an important exception to the rule discussed in
Griffin, however. "Griffin distinguishes cases . . . which

concern convictions that may have rested on a basis that was not
supported by the evidence, from those concerning convictions
possibly resting on an invalid ground as a result of an error of
law." Nieves-Burgos, 62 F.3d at 436; see Griffin, 502 U.S. at 58

(defining "legal error" as "a mistake about the law, as opposed
to a mistake concerning the weight or the factual import of the
evidence"). In the case of legal errors "'the proper rule to be
applied is that which requires a verdict to be set aside where
the verdict is supportable on one ground, but not on another, and
it is impossible to tell which ground the jury selected.'" Id.

at 52 (quoting Yates v. United States, 354 U.S. 298, 312 (1957),

overruled by Burks v. United States, 437 U.S. 1 (1978)).

However, appellant does not argue that the conviction rested on
an invalid ground, due to an error of law; rather, he focuses on
the sufficiency of the evidence of the charges, the very concern
at issue in Griffin. Therefore, we need not discuss this

exception here. See id. at 55 (noting that the exception has

generally been applied "to general-verdict convictions that may
have rested on an unconstitutional ground.").

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object offenses, we did not need to decide whether there was

sufficient evidence of a conspiracy to commit any or all of the

other object offenses, id. at 982-83 (holding that the fact that

there was sufficient evidence allowed a new trial despite

vacation of the conspiracy count on other grounds). Likewise, in

United States v. Nieves-Burgos, we applied Griffin to uphold the

jury verdict where there was sufficient evidence to find

defendant guilty for only one of three violations alleged in one

charge. 62 F.3d at 436.

Mitchell does not frame his argument in terms of

Griffin and its progeny, however. Rather, he seems to make two

intertwined arguments. First, he contends that Count I must be

read to charge him with only one offense, namely, agreeing to

burn the Building and using interstate wire facilities to

transfer money to Wallace. The instructions, he maintains,

expanded this offense into two, opening him up to the danger of

being convicted on facts different from those charged. A "court

may not substantially amend the indictment through its

instructions to the jury." United States v. Stewart Clinical

Lab., Inc., 652 F.2d 804, 807 (9th Cir. 1981) (reversing a

conviction where the indictment charged defendants with violating

one subsection of 42 U.S.C. 1396h(b)(2) but the government's

case proved a violation of another); see also United States v.

Trexler, 474 F.2d 369, 371 (5th Cir.) (stating that "[a]s a

general rule, the Government cannot broaden an indictment so as

to convict the defendant on different facts from those charged in

-24-

the indictment"), cert. denied, 412 U.S. 929 (1973). As a result

of this broadening of the indictment, he states, the Government

was allowed to argue a "grab bag" of theories and ask the jury to

guess as to which agreement Mitchell contemplated.

This argument is substantially answered by our

discussion of Griffin above. It is manifest that the district

court instruction that the jury could find Mitchell guilty on

Count I if the government proved either of the objects of the

conspiracy complies with Griffin. See Griffin, 502 U.S. at 56-

57. Indeed, an instruction that both objects of the multi-object

conspiracy had to be proved would go against the cited case law.

As the district court did not err in presenting the charge in

this manner, the fairness and integrity of the proceedings were

not affected, contrary to Mitchell's contention otherwise.

Similarly, Mitchell's argument that the instructions allowed the

jury to use conjecture as to his role is quickly dismissed, as

the instructions clearly limit the jury to the indictment,

requiring them to reach unanimity to find guilt on either of the

two objects of the conspiracy. Finally, to the extent that

Mitchell's position is that the instructions were inconsistent

with the Government's argument at trial, he is on shaky ground

given that from the start of the trial the Government approached

the conspiracy charge as a multiple object conspiracy, as

demonstrated by its opening argument (describing the arson as

"the first object of the conspiracy" and separately outlining the

alleged wire fraud (Day 3, pp. 55 - 58)) and proposed jury

-25-

instructions ("you need not . . . find that the defendant . . .

conspired to commit both arson and wire fraud.").

Second, although he never states it in so many words,

Mitchell seems to contend that there was insufficient evidence to

prove the wire fraud charge of the conspiracy, and thus the jury

verdict was against the weight of the evidence. As we have

established that "'a guilty verdict on an indictment charging

several acts in the conjunctive, . . . stands if the evidence is

sufficient with respect to any one of the acts charged,'"

Griffin, 502 U.S. at 56-57 (quoting Turner, 396 U.S. at 420), and

Mitchell does not contest the sufficiency of the evidence as to

the charge of conspiracy to commit arson,9 this position must

also fail.

V. THE MOTION FOR ACQUITTAL
V. THE MOTION FOR ACQUITTAL

Mitchell's next contention also centers on the evidence

-- or lack thereof -- regarding the alleged conspiracy to commit

9 Mitchell lists the elements the Government had to prove for
both objects of the conspiracy, but the only evidence he actually
questions, regarding the use of interstate wire facilities, goes
solely to the wire fraud claim.

In a footnote, Mitchell also argues that the court expanded
the conspiracy's scope "by allowing the Government to argue that
Mitchell caused Gallant to file false and fraudulent information

with the insurance company." (Appellant's Brief, p. 34 n.39).
He maintains that the Government was allowed to prove its case
against Mitchell by showing (1) that he was partners with
Gallant, and (2) that Gallant filed a claim for insurance
proceeds without Mitchell's assistance. As this argument also
goes solely to the sufficiency of the evidence regarding wire
fraud, and there is no challenge to the sufficiency of the
evidence on the conspiracy to commit arson charge, we need not
address it.

-26-

wire fraud. 18 U.S.C. 1343.10 He posits that the district

court committed reversible error in denying his motion for

judgment of acquittal because there was no evidence that the

defendant filed, or caused to be filed, an insurance claim. As

he does not specify which count or counts he contends should be

reversed, we focus on Count I, the conspiracy count, as this

evidence clearly goes to the insurance fraud claim, not the arson

claim. We review Mitchell's "challenge to the evidentiary

sufficiency of the government's case by examining 'whether the

total evidence, taken in the light most amicable to the

prosecution, together with all reasonable inferences favorable to

it, would allow a rational factfinder to conclude beyond a

reasonable doubt that the defendant was guilty as charged.'"

United States v. Castro-Lara, 970 F.2d 976, 979 (1st Cir. 1992)

(upholding district court's denial of motion for judgment of

acquittal), cert. denied sub nom. Sarraff v. United States, 508

U.S. 962 (1993).

10 That section states, in pertinent part:

Whoever, having devised or intending
to devise any scheme or artifice to
defraud, or for obtaining money or
property by means of false or fraudulent
pretenses, representations, or promises,
transmits or causes to be transmitted by
means of wire, radio or television
communication interstate or foreign
commerce, any writings, signs, signals,
pictures or sounds for the purpose of
executing such scheme or artifice, shall
be fined under this title or imprisoned
not more than five years, or both.

18 U.S.C. 1343.

-27-

Essentially, Mitchell argues the following. To prove

wire fraud the Government had to prove: "1) a scheme to defraud

by means of false pretenses, 2) the defendant's knowing and

willful participation in the scheme with the intent to defraud,

and 3) the use of interstate wire communications in furtherance

of the scheme." Cassiere, 4 F.3d at 1011. The Government failed

to prove the first prong of the test because it did not show that

Mitchell made any false representations to the insurance

carriers, and so there was no false pretense. Instead, Gallant

was responsible for preparing and presenting the insurance claim

and proof of loss to the insurers. The prosecution did not show

Mitchell knew or reasonably foresaw the filing of the claims as

the consequence of his conduct. Since the Government's theory

was that Mitchell hired Wallace to burn the Building because it

had been closed by the city and he could no longer operate it, it

was essential to the Government's claim to show that Mitchell

knew the Club was insured and made a claim for the proceeds, or

caused another to do so. However, Gallant testified that he made

the claim without Mitchell's assistance, and that he actually had

a dispute with Mitchell as to whether a claim should be

processed. The only evidence that Mitchell filed an insurance

claim was a letter from an Edward Garguilo to David Collins, the

insurance broker, but there was no evidence connecting Mitchell

to this letter, and no evidence showing that the letter formed

the basis for a request for payment, and so it cannot form the

basisfor anargument thatMitchell attemptedto consummatethe fraud.

-28-

Even if we accept all of his contentions as true, at

most they establish that there was insufficient evidence to find

Mitchell guilty of the wire fraud object of the conspiracy

charge. As we have noted, "'if a jury returns a guilty verdict

on an indictment charging several acts in the conjunctive,'" as

the arson and wire fraud charges were made here, "'the verdict

stands if the evidence is sufficient with respect to any one of

the acts charged.'" Griffin, 502 U.S. at 56-57 (quoting Turner,

396 U.S. at 420); see, e.g., Lanoue, 71 F.3d at 982-83; Nieves-

Burgos, 62 F.3d at 436. As Mitchell does not argue that there

was insufficient evidence for the arson charge, we deem that he

has waived the opportunity to do so. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir.) (applying "the settled

appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived."), cert. denied, 494 U.S. 1082 (1990). Thus the

court did not err in refusing to grant the motion to acquit.11

11 Mitchell argues that the court erred in allowing the letter
sent by Garguilo in evidence under the "business records"
exception to the hearsay rule, see Fed. R. Evid. 803(6), because

Garguilo did not testify regarding the authenticity of the letter
or its accuracy, and there was no testimony regarding what
happened to the letter after Collins received it. However,
Sharon Motyl, a claims technician for Insurance Innovators,
testified that the claims files were maintained in the ordinary
course of business and included documents received from a third
party. She specifically stated that the Garguilo letter was
maintained as part of the pertinent claim file in the ordinary
course of business. Given this, we doubt that the district court
abused its discretion in admitting the letter. See United States

v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (noting that review

of admission of evidence under the business records exception is
for abuse of discretion). Even if it had, its error would not be
prejudicial, as the letter was not relevant to the arson object

-29-

VI. MITCHELL'S SENTENCE
VI. MITCHELL'S SENTENCE

Mitchell's final contention on appeal is that the

district court erred by enhancing his Basic Offense Level12

("B.O.L.") by four points: two points for his role in the

offense as an organizer, leader, manager or supervisor, see

U.S.S.G. 3B1.1(c), and two points for obstruction of justice,

see U.S.S.G. 3C1.1. After noting our standard of review, we

address each of these enhancements in turn. For the reasons

given below, we affirm the sentence given by the district court.

A. Standard of Review
A. Standard of Review

"When we review a district court's application of a

sentencing guideline, we utilize a bifurcated process. First, we

review the guideline's legal meaning and scope de novo. Next, we

review the court's factfinding for clear error, giving due

deference to the court's application of the guidelines to the

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

(citations omitted). "'Due deference' in this context means that,

absent mistake of law, we will review the sentencing court's fact

based application of the guidelines only for clear error.'"

United States v. McDonough, 959 F.2d 1137, 1141 (1st Cir. 1992)

of the conspiracy count.

12 As the sentencing guidelines in effect at the time of the
sentencing were more onerous than those in effect at the time of
the offense (Oct. 15, 1988), the district court applied the
latter set of guidelines. The court found a base offense level
of 6, see U.S.S.G. 2K1.4(a), and enhanced it 18 levels for

knowing creation of a substantial risk of death or serious bodily
injury, see U.S.S.G. 2K1.4(b)(1). With the disputed

enhancements, the total adjusted offense level was 28.

-30-

(quotingUnited Statesv. Mart nez,922F.2d 914,925 (1stCir. 1991)).

B. Manager or Supervisor of a Criminal Activity
B. Manager or Supervisor of a Criminal Activity

The district court enhanced Mitchell's B.O.L. because

it found he acted as Wallace's organizer in committing the crime.

See U.S.S.G. 3B1.1(c).13 In order to apply section 3B1.1(c),

a court must first determine that there were at least two

participants in the crime. See United States v. Akitoye, 923

F.2d 221, 227 (1st Cir. 1991). Here, the two participants were

Wallace and Mitchell himself. See United States v. Morillo, 8

F.3d 864, 872 n.13 (1st Cir. 1993) ("The defendant himself may

be counted in determining the overall number of participants.").

"The second requirement for the application of section

3B1.1(c) is that the defendant exercised control over, or was

otherwise responsible for organizing the activities of, at least

one other individual in committing the crime." Akitoye, 923 F.2d

at 227. Here, the district court found at sentencing that

Mitchell hired Wallace to burn the Club, as he was concerned that

the City of Boston would not let the Club reopen, and he wanted

to collect the insurance proceeds. It also found that Mitchell

called the Club the night of the fire and, in effect, instructed

Wallace to start the fire. Mitchell challenges these factual

13 At the time of the offense that section stated:

If the defendant was an organizer,
leader, manager, or supervisor in any
criminal activity [involving four or
fewer participants], increase by 2
levels.

U.S.S.G. 3B1.1(c) (1987).

-31-

findings. He notes that Wallace testified that, when Mitchell

called him at the Club on the night of the fire, he asked "are

you going to do it?" The inference, Mitchell argues, is that

Wallace was a free agent. Indeed, he maintains, their contact

was almost casual, and it was up to Wallace to burn the Club or

not. His argument is of no avail. There was evidence at trial

that Mitchell initiated discussion of the arson, recruited

Wallace to carry it out, told him specifically how to do it, and

promised to pay him. Given the record, we find no clear error in

the district court's factual findings. Compare United States v.

Balogun, 989 F.2d 20, 23 (1st Cir. 1993) (finding no clear error

in trial court's application of 3B1.1(c) where the facts showed

defendant initiated the conspiracy, received more money than his

co-conspirator, paid his co-conspirator for his cooperation in

the scheme, and used cars fraudulently registered to the co-

conspirator to stage accidents) with United States v. Castellone,

985 F.2d 21, 26 (1st Cir. 1993) (refusing to uphold application

of 3B1.1(c) where the district court did not find defendant

controlled anyone else's movements) and United States v. Fuller,

897 F.2d 1217, 1221 (1st Cir. 1990) (holding that "in the absence

of any evidence that [defendant] exercised control over [other]

persons or was otherwise responsible for organizing them in the

commission of the offense, the mere fact that [defendant] had

dealt with a large quantity of marijuana does not support a

finding that he was an organizer, leader, supervisor, or manager"

in conspiracy to distribute marijuana).

-32-

Mitchell seeks to rely on the Second Circuit's decision

in United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993),

in arguing that section 3B1.1(a) does not apply here. In that

case, the court found that a drug dealer who asked his wife to

give a package to buyers was not an organizer under section

3B1.1, since it was an isolated occurrence. Mitchell relies on

McGregor to argue that the isolated request for assistance he

made to Wallace did not rise to the level the Guideline requires,

noting that there was no evidence that they had acted in concert

for any other criminal activity. His reliance is misplaced,

however. The dealer in McGregor bought and resold at least four

ounces of cocaine a week for over a year, and involved his wife

on only one occasion. His sentence reflected all his prior drug

dealing activity. In this context, the court held that "against

the whole background of the case" McGregor's use of his wife did

not rise to the level of an organizer, leader, manager or

supervisor. Id. at 1138 (noting that "[i]f McGregor had been

charged with drug activity on any other day during the preceding

year, he would have received a sentence without enhancement.").

In the present case, the district court found that Mitchell hired

Wallace to burn the Club and instructed him how and when to do

it. Clearly, these facts are distinguishable from the husband in

McGregor who asks his wife to give buyers a package since he

would not be home to do it himself. As the McGregor court noted,

"[i]n the usual case, obtaining the services of a participant

would make one a supervisor subject to an enhanced sentence."

-33-

Id. This is just such a usual case.14

C. Obstruction of Justice
C. Obstruction of Justice

The district court concluded that Mitchell obstructed

justice through his use of his tape recordings to attempt to

cover up the conspiracy to commit arson, finding that they were

made in an effort to create a false record, and were "intended to

mislead authorities investigating this case and to deceive the

jury, indeed, a judge, should the matter develop to that point."

(Sentencing hearing, at 45). The court accordingly increased the

B.O.L. by two additional points. See U.S.S.G. 3C1.1.15 In

his brief, Mitchell does not contest the district court's factual

findings. Instead, he makes three arguments designed to show

that his use of the tapes did not rise to the level of

obstruction required to apply this section. We address each in

turn.

First, Mitchell points out that the investigation was

not obstructed in any manner, as the investigators did not know

14 Mitchell's point that he did not conduct other criminal
activity in concert with Wallace is irrelevant: when weighing
application of section 3B1.1(a), the sentencing court looks to
the criminal activity charged. See, e.g., Balogun, 989 F.2d at

23.

15 At the time of the offense that section stated:

If the defendant willfully impeded or
obstructed, or attempted to impede or
obstruct the administration of justice
during the investigation or prosecution
of the instant offense, increase the
offense level . . . by 2 levels.

U.S.S.G. 3C1.1 (1987).

-34-

of the tapes' existence until after his arrest. They were not

misled by them in any way. See United States v. Manning, 955

F.2d 770 (1st Cir. 1992) (finding that giving false name to

arresting officers did not amount to obstruction of justice under

3C1.1, as it did not mislead them). This argument is a red

herring, however: the guideline itself provides that it applies

if a defendant attempts to obstruct the administration of justice

not only during the investigation, but also during the

prosecution of an offense. Thus, whether or not the

investigation was impacted by the tapes is irrelevant, since

Mitchell used them at trial.

Mitchell's second argument is that his use of the tapes

did not thwart the administration of justice, since there was no

intimidation of the witnesses, and no attempt to prevent them

from testifying at trial. This, too, is a red herring, since

intimidating or influencing a witness is not required in order to

find obstruction of justice under section 3C1.1. Of course, it

is one method that the commentary to that section notes may

provide a basis for finding a defendant obstructed justice, see

U.S.S.G. 3C1.1 comment. (n. 1(d)), but the commentary's list

is, by its terms, not exclusive.

Finally, Mitchell argues that his use of the tapes does

not qualify for an enhancement under section 3C1.1 because he did

not use them as an affirmative weapon, since they were only used

for impeachment purposes. The trial court's decision, he

maintains, seeks to punish passive, defensive conduct designed to

-35-

protect the cross-examination process. However, as the

Government points out, Mitchell's use of the tapes was not

passive. He used portions of the February 1 and February 11

tapes to demonstrate his state of mind, and used the February 7

tape to cross-examine Wallace.

Indeed, Mitchell does not challenge the district

court's factual finding that the tapes were made in an attempt to

create a false record, and we find no clear error in the court's

finding. Given that, the court's application of section 3C1.1

was clearly proper. As the current commentary to that section

notes, "producing or attempting to produce a false . . . record

during a . . . judicial proceeding" rises to the level of

obstructing justice. U.S.S.G. 3C1.1 comment. (n. 3(c)) (1995);

see U.S.S.G. 3C1.1 comment. (n. 1(c)) (1987) ("producing or

attempting to produce an altered, forced, or counterfeit . . .

record during a . . . trial" may be a basis for applying

3C1.1); see, e.g., United States v. Rojo-Alvarez, 944 F.2d 959,

969 (1st Cir. 1991) (finding that submission of altered passport

as verification of defendant's identity met obstruction of

justice standard); cf. United States v. Ruiz-Batista, 956 F.2d

351, 353-54 (1st Cir.) (upholding use of sentencing guideline

commentary added after date of offense where commentary clarified

what conduct could be considered in determining defendant's

role), cert. denied, 506 U.S. 834 (1992). As Mitchell produced a

falsified record at trial, we uphold the district court's

enhancement of his sentence for obstruction of justice.

-36-

VII. CONCLUSION
VII. CONCLUSION

For the reasons stated above, the decision of the

district court is affirmed.
affirmed

-37-