United States v. Disanto

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. at 872" to

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

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, was on brief for

appellee.

June 14, 1996

TORRUELLA, Chief Judge. After a nine-day trial,
TORRUELLA, Chief Judge

Appellant Gerard DiSanto ("Appellant") was convicted for

attempted arson in violation of 18 U.S.C. 844(i), the federal

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

of fire property used in or affecting interstate or foreign

commerce; and for conspiracy to commit arson in violation of 18

U.S.C. 371. Appellant appeals his conviction as well as his

sentence on a number of grounds. For the following reasons, we

affirm the district court's judgment and sentence in all

respects.

FACTUAL AND PROCEDURAL BACKGROUND
FACTUAL AND PROCEDURAL BACKGROUND

Presenting the facts in the light most hospitable to

the jury's verdict, see United States v. Staula, 80 F.3d 596, 599

(1st Cir. 1996); United States v. Ortiz, 966 F.2d 707, 711 (1st

Cir. 1992), cert. denied, 506 U.S. 1063 (1993), the evidence

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

The Galleria II was a family-style restaurant and pub

serving Italian food and pizza, located in Westport,

Massachusetts (the "restaurant"), which was owned by three

partners: Appellant, Robert Ashness ("Ashness") and Dr. Louis

Aguiar ("Dr. Aguiar"). The restaurant was located in a building

which Appellant and Ashness leased from Dr. Aguiar and Fernando

L pes ("L pes"). The lease agreement provided, among other

things, for a monthly rent of $3,600 and an option for the

restaurant owners to purchase L pes' share in the property. The

restaurant received natural gas and food supplies that moved

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through interstate commerce. Although very successful during the

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

II's business proved to be seasonal and business slowed

considerably after the summer. In addition to the slow business,

there were significant problems with the building's water and

septic systems and the relationship between Appellant and Dr.

Aguiar deteriorated over who was responsible to pay for the

required improvements: the restaurant, as tenant, or Dr. Aguiar

and L pes, as landlords.

Among the Galleria II's employees, Randy Schaller

("Schaller") served as chef and as kitchen manager; and Shelley

McKenna ("McKenna") served as the bar manager and hostess and was

also responsible for the cash and bookkeeping. Both Schaller and

McKenna had longstanding business relationships with Appellant

and considered him a friend. Beginning in the fall of 1991,

Appellant began discussing with Schaller the need for renovating

the restaurant. In addition to correcting the water and septic

systems, Appellant proposed that an outside roof-top deck be

installed for the purpose of increasing liquor sales during the

peak summer season. Appellant told Schaller that he wanted to

finance the renovations by burning the top of the restaurant

above the second floor as the insurance proceeds from the fire

would provide funds for the renovations. As part of his plan,

Appellant increased the Galleria II's existing insurance coverage

(building, contents, and premises liability) by purchasing

$90,000 of business interruption insurance, which became

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effective December 3, 1991, two months before the arson attempts.

The proceeds from the business interruption coverage could have

been used for any purpose, including for the repair of the water

and septic systems.

On or about February 19, 1992, after unsuccessfully

attempting to hire someone else to burn the top of the

restaurant, Appellant attempted to set a fire himself by igniting

a stack of papers in the attic of the restaurant. The fire

burned out, however, before it could fully ignite the exposed

wood frame. Both Schaller and McKenna, who had been drawn to the

attic because of the open attic door, discovered Appellant

standing over the burning stack of papers and refused to get

involved. During the days following his first failed attempt,

Appellant asked Schaller if he would help by pouring gasoline on

the attic rafters as part of a plan whereby Appellant would

return later to ignite the gasoline. After repeatedly declining

to get involved, Schaller finally agreed to assist Appellant.

Shortly after noon on February 23, 1992, Schaller

poured gasoline, as Appellant had requested, onto the exposed

attic rafters and insulation and informed Appellant that he had

done so. About mid-afternoon, Appellant and Schaller left the

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

Westport Fire Department responded to a complaint from the

restaurant that there was a strong odor of gas, which both

patrons and employees at the restaurant had detected. After

evacuating the building, the firefighters discovered the

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gasoline-soaked boards and insulation as well as evidence of

charring on the attic floor and ceiling. According to the fire

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

the attic that was saturated with gasoline, representing a

separate, previous attempt to start a fire.

A few days later, Schaller admitted to the police that

he had poured the gasoline. Although Appellant told law

enforcement officials that he would fire Schaller when they

informed him of Schaller's confession, Appellant never fired

Schaller, and Schaller worked at the restaurant until it closed.

On December 6, 1993, Schaller entered a plea of guilty to the

federal indictment charging him with the second attempted arson.

Pursuant to his plea agreement, he agreed to cooperate with law

enforcement officials. As part of that cooperation, Schaller

engaged in four conversations -- three in person and one by

telephone -- with Appellant that were recorded by law enforcement

agents.1 In July 1994, a two count indictment was returned by

the federal grand jury charging Appellant with attempted arson of

a building affecting interstate commerce under 18 U.S.C. 844(i)

and conspiracy to commit arson under 18 U.S.C. 371. Prior to

trial, Appellant filed a motion in limine to exclude from

evidence the four recorded conversations between Appellant and

Schaller, which included incriminating statements made by

1 The conversations occurred on February 24, March 1, March 4,
and May 25 of 1994.

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Appellant. After a hearing, the court denied the motion and

admitted the tapes after certain portions were excised.

During a nine-day trial on the merits, in which nine

witnesses testified for the prosecution (including Schaller,

pursuant to his plea agreement), the prosecution presented its

theory that Appellant attempted to burn the restaurant in order

to recover insurance proceeds to finance renovations and

improvements of the restaurant. The defense called three

witnesses, including McKenna. Among other matters, the witnesses

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

that the business interruption insurance was purchased as a

result of significant storms which had caused the Galleria II to

close; that, after leaving with Schaller during the afternoon of

February 22, Appellant had no intention of returning to the

restaurant; and that Appellant was with McKenna during the

evening of February 22, planning their next day's business trip.

During the trial, Appellant moved for a mistrial, which

was denied, on the grounds that improper testimony regarding his

ownership of a "gay night club" was prejudicial. Both at the

close of the government's case-in-chief and at the close of all

the evidence, Appellant moved for judgment of acquittal on the

ground that the evidence was insufficient to establish that the

Galleria II was a building affecting interstate commerce. The

district court denied both motions.

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Based on the foregoing and other evidence, the jury

convicted Appellant on February 10, 1995, on both counts of

attempted arson and conspiracy to commit arson. Appellant

subsequently moved for a new trial which the district court

denied. On May 25, 1995, the district court sentenced Appellant

to a term of seventy-eight (78) months' imprisonment, imposed a

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

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

years. Appellant appeals both his conviction and his sentence.

We have jurisdiction pursuant to Rule 4(b) of Federal Rules of

Appellate Procedure.

DISCUSSION
DISCUSSION

I. Appellant's Motions for Judgment of Acquittal
I. Appellant's Motions for Judgment of Acquittal

Appellant claims reversible error in the denial of his

motions for judgment of acquittal. See Fed. R. Crim. P. 29.

Below, Appellant based his motions for acquittal on sufficiency

of the evidence grounds, which included the argument that there

was insufficient evidence to prove the requisite nexus to

interstate commerce under the federal arson statute.2 On

2 The federal arson statute provides:

Whoever maliciously damages or destroys,
or attempts to damage or destroy, by
means of fire or an explosive, any
building, vehicle, or other real or
personal property used in interstate or
foreign commerce or in any activity
affecting interstate or foreign commerce
. . . [is guilty of a crime].

18 U.S.C. 844(i) (1994).

-7-

appeal, he raises new arguments based on the Supreme Court's

decision in United States v. L pez, U.S. , 115 S. Ct. 1624

(1995), which struck down the Gun Free School Zone Act, 18 U.S.C.

922(q), as exceeding Congress' authority under the Commerce

Clause3 to regulate interstate commerce. Appellant now argues

that, in light of L pez, the federal arson statute is

unconstitutional and that, accordingly, the district court lacked

subject matter jurisdiction. In the alternative, Appellant

argues that under L pez there is insufficient evidence to prove

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

interstate commerce.

Specifically, Appellant now claims that this is a

simple state arson case which Congress has no power under the

Commerce Clause to federalize and thereby undercut Massachusetts'

power to prosecute Appellant under its own arson statute, Mass.

Gen. Laws Ann. ch. 266, 1. In support of this argument,

Appellant insists that L pez effectively overruled the Supreme

Court's earlier decision in Russell v. United States, 471 U.S.

858, 859 (1985), which concluded that the federal arson statute

expresses Congressional intent to exercise its full power under

the Commerce Clause. Id. (holding that rental property was

property used in an activity affecting interstate commerce within

the meaning of the federal arson statute). Consequently,

3 Under the Commerce Clause, Congress is empowered "[t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." U.S. Const. art. I, 8,
cl. 3.

-8-

Appellant challenges the "continuing viability" of United States

v. Medeiros, 897 F.2d 13 (1st Cir. 1990), in which we held that

after Russell rental property is per se "unquestionably

sufficiently connected to interstate commerce to confer

jurisdiction" and satisfy the jurisdictional element of the

federal arson statute. Id. at 16-17. Appellant, thus, urges us

to reexamine our holding in Medeiros in light of L pez'

"substantially affect" nexus requirement between the illegal

activity and interstate commerce, and reverse his convictions on

the grounds that the evidence does not prove that the attempted

arson of the Galleria II "substantially affects" interstate

commerce.

1. The Constitutionality of Section 844(i)
1. The Constitutionality of Section 844(i)

A. Standard of Review
A. Standard of Review

Although Appellant failed to raise his L pez-based

challenge below,4 a claim that a statute is unconstitutional or

that the court lacked jurisdiction may be raised for the first

time on appeal. United States v. Seuss, 474 F.2d 385, 387 n.2

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

Crim. P. 12(b)(2) (lack of jurisdiction may be noticed by the

court at any time). We review a determination of the

4 Appellant did not make these L pez-based arguments below as

L pez had not yet been decided. We note that Appellant does not

argue 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. See Griffith v. Kentucky, 479

U.S. 314 (1987); United States v. Melvin, 27 F.3d 703, 707 n.4

(1st Cir. 1994). We need not address this issue, or decide
whether this case falls within Griffith, because, regardless of

waiver, Appellant does not prevail on the merits.

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constitutionality of a federal statute de novo. See United

States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995)

(applying, without explicitly stating so, de novo review to

L pez-based constitutional challenge not raised during pre-L pez

proceedings); United States v. Sherlin, 67 F.3d 1208, 1213-14

(6th Cir. 1995) (applying de novo review to L pez-based

constitutional challenge to the federal arson statute), cert.

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

957 F.2d 18, 21 (1st Cir. 1992) (reviewing de novo questions of

constitutional law). But see United States v. Spires, 79 F.3d

464, 465 (5th Cir. 1996) (reviewing only for plain error L pez-

based constitutional challenge not raised below during pre-L pez

proceedings); United States v. Dupaquier, 74 F.3d 615, 619 (5th

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

684, 687-88 (1st Cir. 1994) ("The raise-or-waive rule applies

with full force to constitutional challenges."). Regardless of

what standard of review we apply, the result is the same since

even under the more favorable de novo standard, we reject

Appellant's constitutional and jurisdictional challenges, finding

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

B. Discussion
B. Discussion

As with the federal arson statute at issue here,

Congress has often invoked its authority under the Commerce

Clause to federalize criminal activity. Appellant points to

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L pez and its invalidation of the Gun Free School Zone Act5 as

evidence that the Supreme Court's present position is to

restrictively interpret the Commerce Clause when it is used as a

foundation for a criminal statute. See L pez, 115 S. Ct. at 1631

n.3 ("Under our federal system, the 'States possess primary

authority for defining and enforcing the federal law.'" (quoting

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993))). The L pez

Court recognized three categories of activity which Congress may

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

of interstate commerce"; (ii) "the instrumentalities of

interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities";

and (iii) "those activities that substantially affect interstate

commerce." L pez, 115 S. Ct. at 1629-30.

After L pez, the Court explained in United States v.

Robertson, U.S. , 115 S. Ct. 1732 (1995) (per curiam),

that these three bases of congressional authority are

analytically distinct, reaffirming the distinction between

activities engaged in interstate commerce and purely intrastate

activities having a substantial effect on interstate commerce.

See Robertson, U.S. at , 115 S. Ct. at 1733. The Court

stated that the "'affecting commerce' test was developed in our

jurisprudence to define the extent of Congress' power over purely

intrastate commercial activities that nonetheless have

5 This Act made it a federal offense to knowingly possess a
firearm at a place that the individual knows or has reasonable
cause to believe is a school zone.

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substantial interstate effects." Id. at , 115 S. Ct. at 1733

(emphasis in original) (concluding that transporting equipment

and workers from out of state fell within 18 U.S.C. 1962(a)'s

alternative criterion without regard to the "affecting commerce"

test).

We consider the federal arson statute and the Court's

pre-L pez holding in Russell in light of this framework,

concluding that L pez does not invalidate 18 U.S.C. 844(i).

First, by its plain language, Section 844(i) clearly falls under

both the second and third L pez categories in that it protects

property that is either "used in interstate or foreign commerce

or in any activity affecting interstate or foreign commerce." 18

U.S.C. 844(i) (emphasis added).

Second, the federal arson statute contains the

requisite "jurisdictional element" and thus is readily

distinguishable from the provision invalidated in L pez. As we

recently noted in D az-Mart nez, the Supreme Court in L pez

"found significant that the statute in that case, 18 U.S.C.

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

jurisdictional element which would ensure, through case-by-case

inquiry, that the firearm possession in question affects

interstate commerce.'" D az-Mart nez, 71 F.3d at 953 (quoting

L pez, 115 S. Ct. at 1631). We held that, unlike L pez, the

jurisdictional element was present in 18 U.S.C. 922(k) because

it contains a specific requirement that the firearm with the

obliterated serial number have been "shipped or transported in

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interstate or foreign commerce." 18 U.S.C. 922(k); D az-

Mart nez, 71 F.3d at 953 (holding that "[w]hatever the reach of

L pez, it does not invalidate 18 U.S.C. 922(k)"). Here, too,

the federal arson statute contains the requisite jurisdictional

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

damaged by the arson must have been "used in interstate . . .

commerce or in an activity affecting interstate . . . commerce."

18 U.S.C. 844(i).

Third, while the federal arson statute is similar to

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

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

522, 526-27 (9th Cir. 1995), it does regulate the damage or

destruction of business property that satisfies the requisite

interstate nexus, see Russell, 471 U.S. at 860-62 ("Congress at

least intended to protect all business property"); United States

v. Flaherty, 76 F.3d 967, 974 (8th Cir. 1996). Particularly in

the absence of any mention of Russell in the majority opinion of

L pez, we can find no reason to conclude that L pez invalidates

Russell's analysis of Section 844(i)'s purpose and legislative

history or its conclusion that the federal arson statute

constitutionally regulates arson of business property that

satisfies the requisite jurisdictional element. Russell, 471

U.S. at 860-62. After all, whatever L pez' reach, it certainly

did not purport to overrule cases upholding application of the

Commerce Clause power to wholly intrastate activities satisfying

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the requisite nexus to interstate commerce. See United States v.

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

Furthermore, we reject Appellant's argument that

Section 844(i) is unconstitutional because it improperly intrudes

into Massachusetts' primary authority for defining and enforcing

the criminal law. By virtue of the fact that the federal arson

statute is a criminal law it indeed intrudes upon states'

traditional dominion over the criminal law. L pez, 115 S. Ct. at

1631 n.3 ("Under our federal system, the 'States possess primary

authority for defining and enforcing the criminal law.'" (quoting

Abrahamson, 507 U.S. at 635)). However, "not every federal foray

into criminal law is invalid." United States v. Bishop, 66 F.3d

569, 584 (3d Cir. 1995) (rejecting L pez-based challenge to the

constitutionality of the federal carjacking statute, 18 U.S.C.

2119). Where, as here, the criminal statute satisfies the

constitutional limits of the Commerce Clause, it withstands the

challenge that it interferes with the states' ability to define

and enforce the criminal law. See Russell, 471 U.S. at 860-62.

Finally, we note that we join our fellow circuits in arriving at

the conclusion that 18 U.S.C. 844(i) passes constitutional

muster under L pez. See, e.g., Flaherty, 76 F.3d at 974; United

States v. Denalli, 73 F.3d 328, 329 (11th Cir. 1996); Sherlin, 67

F.3d at 1213-14; Pappadopoulos, 64 F.3d at 526.

Because we find no basis to question the presumed

validity of 18 U.S.C. 844(i), we conclude that the district

court properly had subject-matter jurisdiction conferred by

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virtue of the fact that Appellant was charged with an "offense

against the United States." 18 U.S.C. 3231. See United States

v. Ryan, 41 F.3d 361, 363-64 (8th Cir. 1994) (noting that "if

[the jurisdictional] element is not satisfied, then [defendant]

is not guilty; but the court is not by the failure of proof on

that element deprived of judicial jurisdiction.").

2. Sufficiency of the Evidence
2. Sufficiency of the Evidence

With respect to Appellant's claim that there was

insufficient evidence to sustain his convictions, Appellant

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

(1st Cir. 1995). "If the evidence presented, taken in the light

most agreeable to the government, is adequate to permit a

rational jury to find each essential element of the offense of

conviction beyond a reasonable doubt, then [Appellant's] claim

fails." Id. (citations omitted). As the district court's

disposition of a motion for judgment of acquittal is subject to

de novo review, we, "like the trial court, must 'scrutinize the

evidence in the light most compatible with the verdict, resolve

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

judgment whether a rational jury could find guilt beyond a

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

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

After thoroughly reviewing the record6 and applying

these straightforward rules, we are convinced that a rational

6 We included in our review of the record the challenged tape
recordings because, as we explain below, we find that they were
properly admitted into evidence.

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jury could have found beyond a reasonable doubt that the

government had successfully proved each of the elements --

including, as we discuss more thoroughly below, the requisite

nexus to interstate commerce -- of both Appellant's attempt and

conspiracy convictions. Credibility determinations are uniquely

within the jury's province; and, we defer to their determinations

and the verdict if the evidence can support varying inferences.

See, e.g., United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir.

1996); United States v. Gonz lez-Torres, 980 F.2d 788, 790 (1st

Cir. 1992). Here, the record clearly supports the verdict. That

the jury chose to believe the testimony presented by the

government, particularly that of Schaller, and disbelieve that

presented by the defense was well within its province.

As part of our sufficiency of the evidence review, we

must determine whether the requisite jurisdictional element is

met. Because it constitutes a jurisdictional predicate of the

substantive offense, this "jurisdictional element," like other

elements of the offense, must be proved to the jury beyond a

reasonable doubt. See Pappadopoulos, 64 F.3d at 524; Medeiros,

897 F.2d at 15-17 (stating that the government need only show a

de minimis connection to interstate commerce in order to satisfy

this element). Thus, in order for Appellant to be found guilty

under the federal arson statute, the government had to prove,

among other things, that the property was either "used in" or

"used in an activity affecting" interstate commerce. 18 U.S.C.

844(i). This involves identifying for what activity or purpose

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the building is "used." Cf. Medeiros, 897 F.2d at 16 (focusing

on the character of a fictitious building in determining whether

it was sufficiently connected to interstate commerce).

On appeal, Appellant argues that there is insufficient

evidence to prove that the Galleria II was a building used in or

affecting interstate commerce, because under L pez the evidence

does not prove that the building "substantially affects"

interstate commerce. Because Appellant did not raise this L pez

argument below, we review only for plain error the district

court's ruling on the sufficiency of the evidence regarding the

jurisdictional element. United States v. Olano, 507 U.S. 725,

732 (1993) ("There must be an 'error' that is 'plain' and that

'affect[s] substantial rights.'"); United States v. Brand, 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 the district court to question the viability of

Russell or Medeiros. Under Medeiros, the government need only

show, and the jury need only find, a de minimis connection to

interstate commerce in order to sustain a conviction under 18

U.S.C. 844(i). Medeiros, 897 F.2d at 16-17. Here, the

government presented uncontested evidence that the object of the

attempted arsons was a "building" that was being "used" as a

commercial establishment, the Galleria II restaurant. The jury

was presented with evidence that Appellant and his partners

rented the building; that the building was supplied with natural

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gas which traveled in interstate commerce; and that the

restaurant received food supplies for its operation which

traveled in interstate commerce. Indeed, Appellant conceded at

oral argument that the building was used as a commercial

establishment which received food supplies and natural gas for

its operation that travelled in interstate commerce. The

district court correctly instructed the jury that the government

had to prove beyond a reasonable doubt that the Galleria II was

property "used in or [sic] affected interstate or foreign

commerce."7 Viewing the evidence in the light most favorable to

the jury verdict, this evidence more than satisfies Medeiros' de

minimis requirement, and we therefore reject Appellant's

insufficiency of the evidence argument.8 See, e.g., Ryan, 41

7 The court further instructed the jury: "Interstate commerce
means commerce or business between any place in one state and
another place outside that state. It also means commerce between
places within the same state, but passing through any place
outside that state." Finally, the court stated: "Now, business-
related property, as opposed to residential property, is
considered used in or affecting interstate or foreign commerce
even if it has only a de minimis affect [sic] on interstate or

foreign commerce. For example, business-related property is
considered used in or affecting interstate or foreign commerce if
food or drink which has moved in interstate or foreign commerce
is sold there, or if oil or gas which has moved in interstate or
foreign commerce is used in the building." Appellant did not
object to this instruction below or specifically challenge it on
appeal.

8 We need not address Appellant's contention that our holding in
Medeiros that the government need only show a de minimis

connection to interstate commerce is invalidated by L pez. We

merely note that while the L pez decision did not address the

amount of evidence required to prove an explicit jurisdictional
element of an offense, see Flaherty, 76 F.3d at 974, this does

not necessarily mean that it is not controlling when determining
how significant the connection to interstate commerce must be in
order to satisfy the jurisdictional element, see Denalli, 73 F.3d

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F.3d at 364 (the de minimis standard "is easily met, even when

the property is temporarily closed or vacant"); U.S. v. Menzer,

29 F.3d 1223, 1229 (7th Cir.) (finding interstate commerce

connection where building used partly as commercial business

received natural gas and items purchased for resale that moved in

interstate commerce), cert. denied, 115 S. Ct. 515 (1994);

Medeiros, 897 F.2d at 16 (holding that rental property is per se

property used in an activity affecting interstate commerce).

We only add this: Even assuming L pez requires more

than a de minimis showing, we nonetheless find that the jury was

presented with sufficient evidence to support its finding that

the Galleria II was a building either "used in" or "used in an

activity affecting" interstate commerce. Above, we found no

reason to think that L pez in any way undercut Russell's

conclusion that Congress has the authority to regulate arson of

business property.9 Similarly, we find no basis to conclude

that L pez in any way undercuts Russell's holding that "rental

property is unquestionably" an "activity" that affects interstate

commerce within the meaning of 18 U.S.C. 844(i). Russell, 471

U.S. at 862 ("We need not rely on the connection between the

at 330-31 (finding arson of private residence did not
substantially affect interstate commerce); Pappadopoulos, 64 F.3d

at 527 (same).

9 See generally, Thomas J. Egan, Note, The Jurisdictional

Element of 18 U.S.C. 844(i), A Federal Criminal Commerce Clause
Statute, 48 Wash. U.J. Urb. & Contemp. L. 183, 208 (1995) (noting
that "the controversy of 844(i) jurisdiction boils down to one
issue -- in addition to business property, what types of private

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

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market for residential units and the 'interstate movement of

people,' to recognize that the local rental of an apartment unit

is merely an element of a much broader commercial market in

rental properties." (quoting McLain v. Real Estate Board of New

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

(finding that building used in educational business of college

was building used in an activity affecting interstate commerce).

We, thus, reaffirm our holding in Medeiros that rental property

is per se sufficiently connected to interstate commerce to confer

federal jurisdiction under Section 844(i) and to satisfy the

jurisdictional element. See Medeiros, 897 F.2d at 16. Because

uncontested evidence was presented that, at the time of the

attempted fires, Appellant and his partner rented the building in

which the Galleria II was operated, the jury was presented with

sufficient evidence to find that the building was "used in an

activity affecting" interstate commerce within the meaning of 18

U.S.C. 844(i)'s second category.

Even assuming further that L pez undermines Russell and

Medeiros' holding regarding rental property, we would nonetheless

affirm the jury's finding. Because uncontested evidence was

presented below that the building was used as a commercial

establishment which received food supplies and natural gas for

its operation that travelled in interstate commerce, the Galleria

II also falls within 18 U.S.C. 844(i)'s "real or personal

property used in interstate . . . commerce." Because the

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

-20-

address whether its activities "substantially affect[ed]"

interstate commerce. Cf. Robertson, U.S. at , 115 S. Ct.

at 1733.

In sum, because we are convinced that a rational jury

could have found beyond a reasonable doubt that the government

had successfully proved each of the elements, we affirm the

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

II. Appellant's Motion for Mistrial
II. Appellant's Motion for Mistrial

Appellant also appeals the denial of his motion for a

mistrial on the grounds that improper testimony was prejudicial.

We review the district court's decision for abuse of discretion.

United States v. Rivera-G mez, 67 F.3d 993, 998 (1st Cir. 1995)

("The trial judge is best situated to make a battlefield

assessment of the impact that a particular piece of improper

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

F.3d 1161, 1184 (1st Cir. 1993) ("Granting or denying a motion

for mistrial is a matter committed to the trial court's

discretion."), cert. denied, U.S. , 114 S. Ct. 2714

(1994).

Appellant argues that the district court abused its

discretion when it denied his motion for a mistrial which he made

after Schaller testified that Appellant owned "a gay night club."

The trial transcript shows that Schaller testified on direct as

follows:

Q: Now, in the beginning of the restaurant
when it first opened, how often did you
speak with the defendant about the
Galleria II Restaurant?

-21-

A: On a daily basis.

Q: When you say "daily basis," was that on
the phone or in person?

A: Usually in person.

Q: Where was that?

A: At the club that he owns in Providence,
Gerardo's.

Q: What type of club is that?

A: A gay night club.

(Transcript, Vol. 4 at 98-99). At this point, Appellant objected

to the comment and moved for a mistrial on the grounds that the

"comment was completely gratuitous . . . [a]nd it was designed

specifically to, solely to[,] inflame the passions and prejudice

of this jury." (Transcript, Vol. 4 at 99).

Although the court seemed to agree with the government

that the information was offered as "strictly background

information," the court was nonetheless concerned about the

possibility that some jurors "may have a view that someone who

runs a gay bar may not be an upstanding citizen." (Transcript,

Vol. 4 at 99-100). The court decided to speak with the jurors

individually to ascertain (i) whether the juror was affected by

the testimony in any way; (ii) whether the juror would remain

impartial; and (iii) whether the juror would be able to render a

verdict based on the evidence and the law as instructed by the

court, without regard to the fact that Appellant operated a gay

night club. After every juror responded that he or she would not

be affected by the testimony in rendering his or her verdict,

-22-

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

I'm satisfied." (Transcript, Vol. 4 at 113). At this point, and

without further comment by counsel, testimony resumed. At the

end of trial, Appellant did not request any additional questions

be asked of the jurors or that any additional instructions be

given.

Based on the record, and under the guiding principle

that a district court may declare a mistrial only as a "last

resort," Sep lveda, 15 F.3d at 1184, we find that the district

court's decision "was well within the broad range of its

discretion." Rivera-G mez, 67 F.3d at 999. The district court

properly weighed the claim of impropriety and determined that it

was unfounded based on his voir dire of the jurors. United

States v. Hahn, 17 F.3d 502, 508 (1st Cir. 1994) ("A mistrial

need not be allowed absent a clear showing of prejudice.").

Moreover, the district court acted swiftly by polling the jurors

immediately after the improper testimony.10 Sep lveda, 15 F.3d

at 1185 ("Swiftness in judicial response is an important element

in alleviating prejudice once the jury has been exposed to

improper testimony."). The government argues that this polling

effectively provided a curative instruction that the jurors were

not to consider evidence that Appellant operated a gay night club

10 In deciding when to "instruct the jurors," the court noted
that "[t]he question is should we go on now, or should I [speak
to the jurors] at this point?" Appellant responded that "I think
I should know the answer. It makes sense to us, doesn't it?"
The court agreed and spoke individually with each of the jurors
at that time. (Transcript, 4-101).

-23-

in determining guilt or innocence. Given the questions asked and

the responses received, we agree that the district court

"efficaciously dispelled" any prejudicial effect of Schaller's

statement by its immediate and thorough response. See United

States v. Bello-P rez, 977 F.2d 664, 672 (1st Cir. 1992)

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

effect of the remark was efficaciously dispelled"). Finally,

given the overwhelming evidence of guilt presented during the

trial, the challenged testimony was innocuous. Bello-P rez, 977

F.2d at 672 (denying mistrial where evidence of guilt was

overwhelming).

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

Third, Appellant appeals the denial of his motion for a

new trial, arguing that the district court abused its discretion

in denying his motion in limine11 to exclude from evidence four

tapes of recorded conversations between himself and Schaller in

February, March and May 1994. As the motion for a new trial is

not properly before us on appeal,12 we only address Appellant's

11 When the tapes were admitted into evidence, Appellant
reiterated his objections to the admissibility of the tapes,
which he first had raised in his motion in limine. See

Transcript, Vol. 5 at 48. Thus, we find the present claim
properly preserved for appeal.

12 On February 24, 1995, -- fourteen days after the guilty
verdict was rendered -- Appellant filed a motion for a new trial
and to extend time to file supporting memorandum. The district
court denied both motions on the grounds that they were not
timely filed pursuant to Fed. R. Crim. P. 33 (providing, inter

alia, seven-day filing period from the guilty verdict, or such

time as the court may fix during the seven-day period, "unless
based on the ground of newly discovered evidence" in which event
it may be filed within two years after final judgment) and Fed.

-24-

motion in limine.13 Appellant argued below, as he does now,

that the tapes should have been excluded in their entirety from

evidence because (i) their probative value was substantially

outweighed by their prejudicial effect under Fed. R. Evid. 403,

even after certain portions were redacted; (ii) they were

improperly admitted as evidence of "other crimes, wrongs, or

acts" under Fed. R. Evid. 404(b); and (iii) portions of them were

partially or wholly unintelligible which thereby rendered them

more misleading than helpful.14

Here, the court listened to the four tapes, reviewed

their respective transcripts, and heard arguments of counsel on

the admissibility of both the tapes and the transcripts. In

R. Crim. P. 45(b) (providing that the court may not extend the
time for any action under, inter alia, Fed. R. Crim. P. 33).

Because Appellant's motion was not timely filed below, and
because his arguments on appeal do not involve "newly discovered
evidence," we do not address this motion. As we have held
before, Fed. R. Crim. P. 33 is jurisdictional and the district
court is without discretion to grant a motion for a new trial
that is not timely filed. See, e.g., United States v. Rogers, 41

F.3d 25, 34 (1st Cir. 1994); United States v. Lema, 909 F.2d

561, 565 (1st Cir. 1990).

13 We note that distinguishing these two motions is somewhat
meaningless -- as a practical matter -- within the context of
this case, given that the same abuse-of-discretion standard
applies to both motions and that Appellant's sole argument
regarding the motion for a new trial is that the court abused its
discretion in denying the motion in limine.

14 In his motion in limine, Appellant also sought exclusion on

the grounds that portions contained inadmissible hearsay under
Fed. R. Evid. 802. Appellant does not make this argument on
appeal. We assume the reason for this is that, as the record
shows, those portions to which Appellant objected on hearsay
grounds were excised from the recordings by agreement of the
parties and the court. In any event, as this argument is not
properly raised on appeal, we do not address it.

-25-

denying Appellant's motion in limine to exclude the tapes in

their entirety under Fed. R. Evid. 403 and 404(b), the district

court found that they were admissible as probative of the issues

raised in the case and that they were "overall more relevant"

than prejudicial. (Transcript, Vol. 2 at 12-13). The district

court, however, did allow Appellant to make specific objections

of undue prejudice. (Transcript, Vol. 2 at 13-15). After

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

district court agreed with most of Appellant's specific

objections and excluded those portions. With respect to

Appellant's audibility argument, the district court only found

the March 1, 1994, tape troubling in that it "seems . . . just

woefully inadequate for any reasonable person to understand."

(Transcript, Vol. 2-17). The district court's concern was that

the only way to understand the tape was to read the transcript

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

being given too much weight. After considering alternatives and

hearing arguments from counsel, the district court decided to

admit the tape and allow the transcript because both parties had

stipulated to the accuracy of the transcript as a true rendition

of the recording. (Transcript, Vol. 2 at 4; Vol. 4 at 4).

Finally, the district court gave cautionary instructions to the

jury that the tapes were evidence but that the transcripts were

not. The district court also ruled that the transcripts would

-26-

not be permitted during deliberations.15 (Transcript, Vol. 4

at 4-5).

We turn to Appellant's arguments, reviewing the

district court's decision to admit or exclude evidence under Fed.

R. Evid. 403 and 404(b) for abuse of discretion. See, e.g.,

United States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996);

United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996).

The same standard of review applies regarding the district

court's decision to admit the tapes over Appellant's audibility

argument. See United States v. Jadusingh, 12 F.3d 1162, 1167

(1st Cir. 1994) ("As we have held on numerous occasions, a trial

judge's ruling on the admission of recordings is afforded 'broad

discretion,' even where portions of the taped conversation are

unintelligible.").

A. The Tapes' Relevancy
A. The Tapes' Relevancy

Evidence is excludable under Fed. R. Evid. 403 "if its

probative value is substantially outweighed by the danger of

unfair prejudice."16 After reviewing the transcript,17 we

15 We note that Appellant does not challenge on appeal the use
of the transcripts.

16 Fed. R. Evid. 403 provides in pertinent part:

Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.

-27-

find no abuse of discretion in the district court's decision to

not exclude the tapes in their entirety. In support of his

argument, Appellant claims that (i) none of Appellant's

statements prove any element of the alleged crimes or show

consciousness of guilt; (ii) the recorded conversations took

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

of Appellant's arguments were made in response to questions

instigated by the government witness; and, (iv) any relevant

conversations were intertwined with others that were not

relevant. We find none of these arguments persuasive.

As the district court found, the tapes included highly

probative evidence regarding Appellant's consciousness of guilt,

including admissions. The tapes were directly relevant to the

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

attempted arson and the conspiracy. Indeed, we note that

Appellant's counsel conceded as much during the hearing on the

tapes' admissibility: "I concede, Judge, that there were parts

that, given the Government's position and its interpretation, are

relevant." (Transcript, Vol. 2 at 12).

For example, the February 24, 1994, tape includes a

conversation regarding the payment of Schaller's legal fees. Not

only did it corroborate Schaller's testimony that Appellant

assisted in the payment of Schaller's legal fees, this

17 Because the parties stipulated to the accuracy of the
transcripts as true recordings of the tapes, we do not need to
actually listen to the tapes. In any event, we note that they
were not made part of the district court record nor included as
part of the record on appeal.

-28-

conversation included evidence from which the jury could draw an

inference "that this money is being paid because these gentlemen

were in on the deal together." (Transcript, Vol. 4 at 9). The

March 1, 1994, tape includes an admission by Appellant that he

threw matches to light the fire during the first attempt: "You

weren't there when I threw the [expletive] matches the first

time." The March 4, 1994, tape includes an adoptive admission by

Appellant regarding his attempts to burn the restaurant during a

conversation about whether Appellant had told anyone about those

efforts. While Appellant denies telling anybody else about his

efforts, he responds to Schaller's questions directly without

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

that Appellant "tried to burn it." The May 25, 1994, tape

provides evidence of the conspiracy between Schaller and

Appellant. The conversation demonstrates that, although they

were confused as to their recollection of what they believed to

be their respective roles, they clearly had conspired to burn the

restaurant. This sampling of each of the four tapes clearly

shows that, contrary to Appellant's claims, the recordings

include statements by Appellant that are directly probative of

both attempts and the conspiracy.

Appellant also points to the fact that the recorded

conversations occurred two years after the alleged offenses,

arguing that the recordings are neither closely intertwined with

the charged offenses nor helpful in establishing Appellant's

intent to commit the crimes charged. Appellant cites to three

-29-

cases addressing the admissibility of evidence under Fed. R.

Evid. 404(b). See United States v. Huff, 959 F.2d 731, 736 (8th

Cir. 1992); United States v. Brookins, 919 F.2d 281, 286 (5th

Cir. 1990); United States v. Hodges, 770 F.2d 1475, 1480 n.4 (9th

Cir. 1985). We agree with these cases that proximity in time is

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

Evid. 404(b) of "other crimes, wrongs, or acts." See, e.g.,

United States v. Fields, 871 F.2d 188, 197 (1st Cir. 1989)

("Probative value must be considered in light of the remoteness

in time of the other act and the degree of the resemblance to the

crime charged."); United States v. Currier, 836 F.2d 11, 17 (1st

Cir. 1987) (noting that the prior bad acts were both close in

time and in nature to the crime charged).18 In addition,

Appellant also points out that the tapes here are distinguishable

from those admitted in Currier, based on the fact that the

recorded conversations in that case occurred immediately prior to

and after the crime charged and were, thus, found to "help[]

establish appellant's intent to commit the crime charged." Id.

Because the conversations here occurred two years after the

predicate offenses, Appellant contends that the tapes cannot be

said to be so "closely intertwined" with the predicate offenses

18 The defendant in Currier objected to the tape at trial on the

basis of Fed. R. Evid. 403. Reasoning that "because the same
revelations of 'skullduggery' that formed the basis for his
assertion that the tape was unfairly prejudicial could also have
formed the basis for an additional assertion that the tape was
offered only to show his bad character," we held that defendant's
Rule 403 objection was sufficient to preserve a claim of error
under Rule 404(b), noting that the two "usually . . . go hand in
glove." Currier, 836 F.2d at 17.

-30-

so as to help establish Appellant's intent to commit the crimes

charged.

We are unswayed by Appellant's arguments. Here, as we

discuss below, no evidence of prior bad acts was admitted in this

case; and, because Appellant has not cited to any cases holding

that proximity in time is a prerequisite for determining

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

any, we are unconvinced that the timing of the conversations is

of any consequence or otherwise undermines their strong

relevance. See, e.g., United States v. Perkins, 926 F.2d 1271,

1279-80 (1st Cir. 1991) (finding no error in admission of post-

conspiracy statements made to a government informant where court

found statements were an admission corroborating trial testimony

and reflected complicity and consciousness of guilt). Even

assuming, arguendo, that proximity must be considered in

determining relevance, we nonetheless find that even though the

conversations occur two years after the attempt and conspiracy,

they are "closely intertwined with the charged offense[s] . . .

[and] [] provid[e] . . . significant contextual material" for

the jury. Currier, 836 F.2d at 17 (citations omitted). As

discussed above, while they do not necessarily show Appellant's

intent to commit the attempted arson or to enter into a

conspiracy, they do show Appellant's consciousness of guilt and

complicity as well as the existence of a conspiracy. See

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

-31-

While not all evidence with probative value is

admissible, we do not find that its value is "substantially

outweighed by the danger of unfair prejudice." Fed. R. Evid.

403. In reviewing the balancing undertaken by the district

court, we give great deference to the district court's judgment,

and "[o]nly in exceptional circumstances will we reverse the

exercise of a district court's informed discretion vis- -vis the

relative weighing of probative value and unfairly prejudicial

effect." Currier, 836 F.2d at 18 (quoting United States v.

Griffin, 818 F.2d 97, 101-02 (1st Cir.), cert. denied, 484 U.S.

844 (1987)). Based on our review of the record, we do not find

that the probative value of the tapes -- as edited19 -- was

outweighed by unfairly prejudicial evidence. See, e.g., United

States v. Mu oz, 36 F.3d 1229, 1233 (1st Cir. 1994) (noting that

the question under Rule 403 is one of unfair prejudice, not

prejudice alone); Currier, 836 F.2d at 18 ("Unfairly prejudicial

evidence is evidence . . . that 'triggers [the] mainsprings of

human action [in such a way as to] cause the jury to base its

decision on something other than the established proposition in

the case.'") (quoting 1 Weinstein's Evidence 403[03], 36-39

(1986)). Neither the fact that many of Appellant's remarks were

made in response to questions or comments by the government

witness, nor that relevant conversations were intertwined with

non-relevant ones, persuades us to reach a different conclusion.

19 As mentioned above, after hearing arguments from counsel, the
district court agreed to excise most of the portions regarding
which Appellant raised specific objections.

-32-

Even the fact that the recordings reveal that Appellant had

initially wanted to hire "a guy from organized crime so to speak"

to burn the restaurant, (Transcript, Vol. 4 at 32), or that

Appellant tells Schaller what to say about pouring the gasoline,

(Transcript, Vol. 4 at 44), does not make them unfairly

prejudicial. Finally, we do not find that any "exceptional

circumstances"20 exist which warrant reversal of the district

court's rulings.21

B. The Tapes' Prior Bad Act Evidence
B. The Tapes' Prior Bad Act Evidence

We find Appellant's reliance on Fed. R. Evid. 404(b) to

be irrelevant on appeal.22 While the transcript of the pre-

trial hearing regarding the admissibility of the tapes shows that

there were references to previous fires which arguably fall

20 We note that Appellant does not specify on appeal that any
"exceptional circumstances" exist.

21 Because we find that the district court did not abuse its
discretion, we need not decide whether the admission of the tape
recordings -- even if an error -- was nonetheless harmless.

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

Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident,
provided that upon request by the
accused, the prosecution in a criminal
case shall provide reasonable notice in
advance of trial, or during trial if the
court excuses pretrial notice on good
cause shown, of the general nature of any
such evidence it intends to introduce at
trial.

-33-

within Fed. R. Evid. 404(b), the record shows that these

references were excised by agreement of the parties.

(Transcript, Vol. 4 at 21). Not only does Appellant not specify

on appeal what "other crimes, wrongs, or acts" under Fed. R.

Evid. 404(b) were erroneously admitted into evidence, we find no

mention of any in the portions that were admitted into evidence.

Accordingly, we do not address this argument further.

C. The Tapes' Audibility
C. The Tapes' Audibility

Lastly, as to Appellant's audibility argument, in

exercising its broad discretion in ruling on the admissibility of

tape recordings, even where portions are unintelligible, Font-

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

'the inaudible parts are so substantial as to make the rest more

misleading than helpful.'" Id. (citations omitted) (quoting

Gorin v. United States, 313 F.2d 641, 652 (1st Cir.), cert.

denied, 374 U.S. 829 (1963)). While the district court found

that there were segments of poor audio and static, the district

court nonetheless decided to admit them. The district court was

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

the transcript as a true recording of the tapes.23 We are

similarly swayed and find no abuse of the court's broad

discretion, even as to the March 1, 1994, tape about which the

district court was most concerned. Based on our review of the

23 Inaudible segments were indicated in the transcript with
parentheticals, such as "static" or "unintelligible."

-34-

transcript,24 we disagree with Appellant's claim that the

inaudible parts, when taken as a whole, were so substantial as to

make the rest more misleading than helpful, because the

transcript clearly evidences that sufficient portions of the

tapes, including statements by both Schaller and Appellant, are

audible. As discussed earlier, these segments are relevant

because they include, inter alia, admissions by Appellant,

tending to show consciousness of guilt and corroborate trial

testimony. Furthermore, the district court gave a cautionary

instruction to the jury that not only informed them that the

tapes, but not the transcript, were evidence, but also that the

jurors had to draw their own conclusions regarding their content

and probative value based on what they themselves heard on the

tapes.25 United States v. Carbone, 798 F.2d 21, 26 (1st Cir.

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

accord with the law where the record shows that the judge

carefully instructed the jurors that the tapes, not the

transcripts, were evidence and that any differences between the

24 See n.17, supra. In ruling on Appellant's audibility

argument, we add only this: By not including the tapes in the
record on appeal, Appellant forfeited the right to their review.

25 We also note that as to the one disputed sentence in the
transcript (whether Appellant said "I am aware of that" or "I am
not aware of that", (Transcript, Vol. 4 at 23)), the court
allowed two versions of the page to be included in the
transcript, informed the jury that the parties were in dispute as
to what Appellant actually said on that page (without
specifically identifying the disputed sentence), and gave another
cautionary instruction that they were to make their own finding
based on what they heard on the tapes. The jury heard that
segment twice, each time while reading along with the respective
versions. (Transcript, Vol. 5 at 54-59).

-35-

two must be resolved in favor of what was heard on the

recording). Based on the record, and particularly in light of

Appellant's stipulation to the accuracy of the transcript as a

true recording of the tapes, we find no abuse of discretion by

the district court in admitting the tapes over Appellant's

audibility objection.

IV. Appellant's Sentence
IV. Appellant's Sentence

Finally, Appellant appeals his sentence imposed by the

district court pursuant to the federal arson guidelines.26 See

U.S.S.G. 2K1.4(a)(1)-(4). The arson guidelines provide, in

pertinent part:

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

(1) 24, if the offense (A) created a
substantial risk of death or serious
bodily injury to any person other than a
participant in the offense, and that risk
was created knowingly; . . .

(2) 20, if the offense (A) created a
substantial risk of death or serious
bodily injury to any person other than a
participant in the offense; . . .

(3) 2 plus the offense level from
2F1.1 (Fraud and Deceit) if the offense
was committed in connection with a scheme
to defraud; or

26 All citations to the Sentencing Guidelines are to the
November 1994 version, which is the version applied by the
district court, as it was the one in effect at the time of
Appellant's May 25, 1995, sentencing. See United States v.

Aymelek, 926 F.2d 64, 66 n.1 (1st Cir. 1991) (noting that

district courts should apply the version of the Guidelines in
effect at the time of sentencing, barring ex post facto
problems). Here, the applicable guidelines had not changed after
Appellant committed the instant offenses.

-36-

(4) 2 plus the offense level from
2B1.3 (Property Damage or Destruction).

U.S.S.G. 2K1.4; see U.S.S.G. App. C, Amendment 330

(restructuring the arson guidelines). New language in the

Commentary, Application Note 2, provides that "[c]reating a

substantial risk of death or serious bodily injury includes

creating that risk to firefighters and other emergency and law

enforcement personnel who respond to or investigate an offense."

See, e.g., United States v. Turner, 995 F.2d 1357, 1365 (6th Cir.

1993) (finding that endangering firefighters is an appropriate

factor); United States v. Grimes, 967 F.2d 1468, 1471 (10th

Cir.), cert. denied, 506 U.S. 927 (1992) (noting that several

other circuits had come to the same conclusion).

Appellant challenges the district court's sentence on

three separate grounds. We address them in turn, reviewing

findings of fact for clear error, mindful that they need only be

supported by a preponderance of the evidence, and reviewing

questions of law de novo, including the scope and applicability

of a relevant guideline. See 18 U.S.C. 3742(e); United States

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

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

A. The "Fraud or Deceit" Base Offense Level
A. The "Fraud or Deceit" Base Offense Level

First, Appellant contends that the district court

should have applied U.S.S.G. 2K1.4(a)(3), which requires

computation of the base offense level as 2 plus the base offense

level for "Fraud and Deceit." Appellant argues that the

overwhelming evidence at trial established that his primary

-37-

purpose was to defraud the insurance company and that Appellant,

while creating some risk of death or serious bodily injury by

pouring gasoline, did not knowingly create a substantial risk.

While the record does indicate that Appellant participated in a

scheme to defraud the insurance company, we conclude that the

district court properly chose subparagraph 2K1.4(a)(1) based on

its specific finding -- which, as we discuss below, was not

clearly erroneous -- that Appellant knowingly created a

substantial risk of death or serious bodily injury to persons

other than the participants in the attempted arson. See Grimes,

967 F.2d at 1472 (holding that district court properly rejected

application of fraud guideline, 2K1.4(a)(3), and properly

applied 2K1.4(a)(2) in case involving defendant's effort to

obtain insurance through arson where defendant created

substantial risk of injury or death). The arson guideline

instructs that the base offense level is determined by selecting

the highest level from among four choices. Section 2K1.4(a)(1)-

(4); United States v. Mizrachi, 48 F.3d 651, 655 (2d Cir. 1995).

The Government contends that applying 2K1.4(a)(3) would only

yield a base offense level of 19, less than that under

2K1.4(a)(1), which is 24. Appellant does not dispute this

calculation or otherwise present his own 2K1.4(a)(3)

calculation, nor was there any discussion of this issue during

the sentencing hearing. Assuming, without deciding, that

calculation under 2K1.4(a)(3) would have yielded only a base

offense level of 19, we conclude that the district court

-38-

correctly applied 2K1.4(a)(1) because it yielded the highest

base offense level based on its finding that Appellant knowingly

created a substantial risk of bodily injury. Cf. Mizrachi, 48

F.3d at 656 (affirming district court's application of

2K1.4(a)(3) in sentencing defendant for arson, mail fraud, and

money laundering offenses where facts yielded an initial base

offense level of 35).

B. Knowing Creation of a Substantial Risk
B. Knowing Creation of a Substantial Risk

Second, Appellant argues that the district court's

finding that Appellant knowingly created a substantial risk of

death or serious bodily injury to any person other than a

participant in the offense is not supported by a preponderance of

the evidence. Whether a defendant knowingly created a

substantial risk of death or serious bodily injury within the

meaning of section 2K1.4 of the Guidelines raises an issue of

first impression in that this court has not previously determined

what level of knowledge is required under 2K1.4(a)(1)(A). At

the outset, we note that this determination involves a two-step

inquiry. A court must first ask whether the defendant's actions

created a substantial risk of death or serious bodily injury and

then decide whether the defendant acted knowingly in creating

that risk. See United States v. Karlic, 997 F.2d 564, 568-69

(9th Cir. 1993) (stating that the first inquiry is objective and

the second is subjective).

1. The Substantial Risk . . .
1. The Substantial Risk . . .

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Leaving aside the question of knowledge for the moment,

we conclude first that the district court did not clearly err in

finding that Appellant created a substantial risk of death or

serious bodily injury to any person other than a participant in

the offense. The district court based its finding primarily on

the PSR, which indicated, inter alia, that the presence of

gasoline created the potential for a fire or explosion.

According to the PSR, a fuel air explosion could have occurred

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

between the place where the gasoline was poured and anyplace

within the building where the odor of gasoline was detected,"

(PSR, at 22), and that "because the gasoline was poured in a

confined area which contained electrical outlets, an electrical

spark or other heat source could have ignited the vapors in the

confined area at any time," (PSR, at 23). Although the evidence

indicates that Appellant only planned to ignite the fire after

the restaurant closed, the district court concluded that the

potential for a fuel air explosion or for a fire to start

accidentally created a substantial risk of death or serious

bodily injury to the occupants of the building at the time of the

pouring of the gasoline in the attic as well as to firefighters

and others who would respond to the incident.

We find no clear error in this finding of substantial

risk to patrons and firefighters. It was properly based on both

the PSR and the sentencing judge's common sense understanding --

which Appellant conceded during the sentencing hearing was

-40-

appropriate -- of the risks associated with pouring an accelerant

to start a fire in an occupied building where there was the

potential for a fuel air explosion to occur or for a fire to

start accidentally. See Medeiros, 897 F.2d at 20 (relying on

common sense in finding under earlier arson guidelines that

defendant conspired "to cause the kind of fire that recklessly

would endanger others."). As the district court correctly noted

in response to Appellant's insistence that there was no risk

created because no fire actually occurred, (Sentencing

Transcript, pages 19-22), the Guidelines speak of "risk." "The

fact that fortuitously no one was injured and extensive damage

did not result [because no fire or explosion actually occurred]

does not further [A]ppellant's contention that he did not . . .

create a substantial risk of death or serious bodily injury."

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

Furthermore, in light of the federal arson guidelines'

commentary, see U.S.S.G. 2K1.4, Application Note 2, we find no

clear error in the district court's finding of substantial risk

given its finding that firefighters "could have been blown to

smithereens" had a spark ignited the gasoline vapors (Sentencing

Transcript, at 20). See, e.g., Turner, 995 F.2d at 1365; Grimes,

967 F.2d at 1471. While "all fires present some danger to

firefighters required to extinguish it, . . . [w]here a

spectacular fire is planned near an occupied building, a finding

of reckless endangerment to firefighters would be based on a

common sense understanding of the risks of putting out a major

-41-

fire when rescue attempts are likely to be necessary." Medeiros,

897 F.2d at 20. Similarly, here, although there is no evidence

that Appellant planned a "spectacular fire," the sentencing

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

-- and, again, our -- common sense understanding of the risks

associated with using an accelerant in an occupied building to

start a fire where there was the potential for a fuel air

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

2. . . . Knowingly Created
2. . . . Knowingly Created

Next, we must decide whether the district court clearly

erred when it found that Appellant knowingly created this

substantial risk. While we review the court's factual finding

for clear error, the definition of a Guidelines term is a

question of law which we review de novo. Mart nez-Mart nez, 69

F.3d at 1224.

Looking first to the statute, we note that the two

highest base offense levels in the federal arson guidelines,

2K1.4(a)(1) and 2K1.4(a)(2), contain almost identical

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

20, applies to the creation of a substantial risk of death or

serious bodily injury. The former, for which there is a base

offense level of 24, applies to the knowing creation of such a

risk. This structure clearly suggests that there must be a

27 In Medeiros, we affirmed the district court's finding of

"reckless endangerment" under the earlier arson guidelines. We
consider the facts supporting such a finding to be relevant to a
finding of "substantial risk" under the amended guidelines.

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meaningful distinction between the two sections. See Honeycutt,

8 F.3d at 787 (noting that "[c]learly it was intended for there

to be a distinction between the two sections").28 Given the

structure of the arson guidelines, we conclude that

2K1.4(a)(1)(A) requires that the district court make a specific

finding that the defendant "knowingly" created a substantial risk

of death or serious bodily injury, as opposed to merely finding

that defendant recklessly (or negligently) created such a risk

which would more appropriately trigger application of

2K1.4(a)(1)(B). Apart from this rather straightforward

observation, no guidance is gleaned from the Sentencing

Guidelines, as "knowingly" is not defined. In addition, the

usual rule of giving an undefined statutory term its plain

meaning provides little direction given that "'[k]nowledge' means

different things in different contexts." United States v.

Spinney, 65 F.3d 231, 236 (1st Cir. 1995).

Our own precedent is of little help because, while this

court has addressed the application of the federal arson

guidelines, see Medeiros, 897 F.2d at 18 (applying former

28 In discussing 2K1.4's application note about firefighters,
the Honeycutt court concluded that knowledge alone that

firefighters will respond to a fire "cannot suffice to satisfy
2K1.4(a)(1)." The court reasoned that if that knowledge were
alone sufficient then 2K1.4(a)(2) (creation of a substantial
risk of death or serious bodily injury) would be subsumed by
2K1.4(a)(1) (knowing creation of that risk). As the court noted,
"fires are inherently dangerous, and the knowledge that
firefighters and emergency personnel respond to virtually all
fires can ordinarily be presumed." Honeycutt, 8 F.3d at 787.

"The arsonist must know that a specific fire for some reason
poses a substantial risk of death or serious bodily injury to
firefighters and emergency personnel who may respond." Id.

-43-

U.S.S.G. 2K1.4(b)(2) and affirming district court's finding

that defendant "recklessly endangered the safety of another");

see also, United States v. Flowers, 995 F.2d 315, 316 (1st Cir.

1993) (involving but not discussing application of 2K1.4);

United States v. Johnson, 952 F.2d 565, 585 (1st Cir. 1991)

(same), it has never addressed what level of knowledge is

required under the highest offense level where the substantial

risk was created knowingly by the defendant.

Turning to our fellow circuits, we note that the Ninth

Circuit, and later the Eleventh Circuit, adopted the definition

of "knowingly" as used in the Model Penal Code (the "MPC") when

applying 2K1.4. See Honeycutt, 8 F.3d at 787; United States v.

Karlic, 997 F.2d 564, 569 (9th Cir. 1993). Drawing from the

MPC's definition,29 the Ninth Circuit held that "a defendant

can be found to have 'knowingly' created a substantial risk of

death or serious bodily injury under 2K1.4 only if the

defendant was aware that a substantial risk of death or serious

29 The Model Penal Code's definition of "knowingly" provides
that:

A person acts knowingly with respect to a
material element of an offense when: . .
.
(ii) if the element involves a result of
his conduct, he is aware that it is
practically certain that his conduct will
cause such a result.

Model Penal Code 2.02(2)(b) (1985). The Model Penal Code also

states that "[w]hen knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established
if a person is aware of a high probability of its existence,
unless he actually believes it does not exist." Model Penal Code

2.02(7) (1985).

-44-

bodily injury was 'practically certain' to result from the

criminal act." Karlic, 997 F.2d at 569; accord, Honeycutt, 8

F.3d at 787. We note that other courts have neither explicitly

defined "knowingly" nor adopted the MPC's definition, apparently

finding it unnecessary where the district court could clearly

conclude from the facts whether the defendant knew his actions

created a substantial risk of death or serious bodily injury.

For example, in United States v. Markum, 4 F.3d 891 (10th Cir.

1993), the court found that a fire set with gasoline during

business hours which put firefighters in severe jeopardy because

of the ferocity of the fire and the risk of explosion constituted

"circumstances [which] more than justified the district court's

finding that [defendant], as a co-conspirator, knowingly created

a substantial risk of death or serious bodily injury." Id. at

896-97. Similarly, in United States v. Turner, 995 F.2d 1357

(6th Cir.), cert. denied, 114 S. Ct. 282 (1993), the district

court concluded that defendant's actions could fit under either

2K1.4(a)(1)(A) or (B). As to the defendant's knowledge, the

court found that defendant knowingly created the substantial risk

given that people in the residence adjacent to the burning

building were likely to be asleep and windy conditions would

cause the fire to spread quickly. Id. at 1365. The court in

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

placing firefighters at a substantial risk by committing the

arson in weather conditions that would make extinguishing the

fire extremely difficult. Id.

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As this relevant case law provides at least two

distinct approaches, we find it helpful when considering the

question of "knowledge" to recall that "the length of the

hypothetical knowledge continuum" is marked by "constructive

knowledge" at one end and "actual knowledge" at the other with

various "gradations," such as "notice of likelihood" in the

"poorly charted area that stretches between the poles." Spinney,

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

"shared knowledge" requirement in prosecution of aiding and

abetting armed robbery). In terms of this continuum, "practical

certainty" would seem most akin to "actual knowledge." Id.

(noting that "[a]ctual knowledge, after all, is certain

knowledge"). We are inclined to conclude that a showing of

knowledge anywhere along this continuum satisfies application of

2K1.4(a)(1)(A).30 This approach would be consistent both

with the guidelines' mandate that a meaningful distinction be

made between the two highest base offense levels as well as with

the "common sense" approach we endorsed in Medeiros. See

Medeiros, 897 F.2d at 20. That said, however, at this juncture

we need not definitively resolve what level of knowledge, in

addition to "actual knowledge," is required. Even assuming

30 "Constructive knowledge is the law's way of recognizing that,
given an awareness of certain subsidiary facts, a person is quite
likely to know, can be expected to know, or at least should have
known that a further fact existed." Spinney, 65 F.3d at 236. In

contrast, "[a]ctual knowledge, as the term implies, reduces the
need for inference; it suggests the presence of particular
evidence which, if credited, establishes conclusively that the
person in question knew of the existence of the fact in
question." Id.

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without deciding that, for 2K1.4(a)(1)(A) to apply, Appellant

had to be "aware that a substantial risk of death or serious

bodily injury was 'practically certain' to result from the

criminal act," Karlic, 997 F.2d at 569, we reject Appellant's

contention that the district court's findings are clearly

erroneous.

On appeal, Appellant argues that the district court

clearly erred in finding that he knowingly created the

substantial risk, because "[it] made no finding that a

substantial risk of death or serious bodily injury was

'practically certain' to result from his [attempted arson]."

Appellant contends that the district court's findings that the

restaurant was occupied at the time the gasoline was poured and

that the vapors could have been accidentally ignited is

insufficient for the application of 2K1.4(a)(1)(A), because the

record does not show by a preponderance of the evidence that

Appellant was "practically certain" that an accidental cause

could have started the fire.

Giving due deference to the court's application of the

guidelines to the facts, we conclude that the district court did

not clearly err in finding that Appellant "knew that . . . there

was a substantial risk of death or serious bodily injury"

(Sentencing Transcript at 23). In arriving at our conclusion, we

note that facts contained in a presentence report ordinarily are

considered reliable evidence for sentencing purposes. See United

States v. Morillo, 8 F.3d 870, 872 (1st Cir. 1993). Indeed,

-47-

district courts possess "broad discretion to determine what data

is, or is not, sufficiently dependable to be used in imposing

sentence." United States v. Tardiff, 969 F.2d 1283, 1287 (1st

Cir. 1992). This is particularly true where, as here, Appellant

offered no evidence to suggest an inaccuracy in the presentence

report's facts. Id., 8 F.3d at 873 (collecting cases).

The record shows that, at the time of the first

attempt,31 Appellant knew that at least two other employees,

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

offense), were in the restaurant. As the court in Honeycutt

noted, "[i]t is difficult to imagine a clearer illustration of

the knowing creation of a substantial risk of death or serious

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

of 2K1.4(a)(1)(A) where defendant threw a Molotov cocktail at a

structure that he admitted he knew was occupied). In terms of

our continuum, this strikes us as constituting "actual knowledge"

and/or "practical certainty."

At the time of the second attempt, the record shows

that gasoline was poured, hours before the intended ignition, in

a confined area atop the Galleria II at a time when both patrons

and employees were inside. Appellant knew gasoline was a highly

flammable liquid and he arranged for it to be poured for the

specific intent of lighting a fire after business hours. In

response to Appellant's "practical certainty" argument, the

31 We address the first count (the attempt to start a fire in
the attic with paper) even though Appellant's brief only focuses
on the second count (involving the gasoline).

-48-

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

to [ignite] the fire outside of business hours, suggests . . .

that he knew of the risk" to people inside the building and to

those who would respond to the fire. (Sentencing Transcript at

18). Contrary to Appellant's contentions, these findings are

sufficient for the application of the highest base offense level.

While Appellant may not have been aware that it was "practically

certain" that a fire could ignite accidentally or that the

restaurant and any occupants could be blown to "smithereens,"

(Sentencing Transcript at 20), we remind Appellant -- as the

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

the knowing creation of a substantial risk. Here, a

preponderance of the evidence supports the finding that Appellant

was aware that a substantial risk of death or serious bodily

injury was "practically certain" to result from the use of a

highly flammable accelerant for purposes of starting a fire.

Appellant presented no evidence to rebut the preponderance of the

evidence presented on this point. Furthermore, we find

irrelevant whether or not Appellant was "practically certain"

that an accidental ignition would occur given that the record

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

creating a substantial risk of death or serious bodily injury.

Finally, the district court again correctly rejected Appellant's

argument that he did not knowingly create a risk because no fire

or explosion actually occurred. See Honeycutt, 8 F.3d at 787

("[t]he fact that fortuitously no one was injured and extensive

-49-

damage did not result does not further [A]ppellant's contention

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

is Appellant's state of mind, not the actual results of his

actions. Id.; cf. Medeiros, 897 F.2d at 20 (finding that the

defendant "specifically intended to cause the kind of fire that

recklessly would endanger others").

C. Two-Level Enhancement for Leadership Role
C. Two-Level Enhancement for Leadership Role

Finally, Appellant appeals the two-level enhancement

which the district court imposed for his leadership role in the

offense. See U.S.S.G. 3B1.1(c). As we have said before, "role

in the offense" determinations are fact intensive and we normally

review for clear error. See United States v. Tejada-Beltr n, 50

F.3d 105, 111 (1st Cir. 1995); United States v. Schultz, 970 F.2d

960, 963-64 (1st Cir. 1992), cert. denied, 506 U.S. 1069 (1993)

(citations omitted). Appellant argues that he and Schaller were,

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

Under U.S.S.G. 3B1.1(c), a two-level enhancement is

warranted if the sentencing court determines that the criminal

enterprise involved at least two participants, and the defendant

exercised control over, or was otherwise responsible for

organizing the activities of, at least one other individual in

committing the crime. See, e.g., Morillo, 8 F.3d at 872; United

States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991). For

purposes of determining the overall number of participants, the

defendant himself may be counted as one participant; "[b]ut, he

must exercise control over at least one other participant to

-50-

warrant an upward adjustment." Morillo, 8 F.3d at 872 n.13. In

determining whether a defendant is an organizer or leader, the

Sentencing Guidelines direct judges' attention to seven factors,

including "the exercise of decision making authority, the nature

of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share

of the fruits of the crime, the degree of participation in

planning or organizing the offense, the nature and scope of the

illegal activity, and the degree of control and authority

exercised over others." U.S.S.G. 3B1.1, comment.; see Tejada-

Beltr n, 50 F.3d at 111-13 ("This list is intended to be

representative rather than exhaustive."). Finally, the

government must bear the burden of proving that an upward role-

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

Here, it is undisputed that Appellant and Schaller

participated in the attempted arson of the Galleria II. Contrary

to Appellant's contention that he and Schaller were mere

"equals," evidence was submitted at trial that it was Appellant's

idea to burn the Galleria II; that Appellant devised the time and

method of committing the offense; that Schaller was persuaded

and, ultimately, recruited by Appellant after Appellant failed to

hire someone else to commit the offense and after his

unsuccessful attempt to start a fire in the attic; and that

Schaller poured the gasoline at Appellant's request and informed

Appellant when he was finished. Contrary to Appellant's

argument, these factual findings satisfy the requirements for

-51-

applying 3B1.1(c). We are unpersuaded by Appellant's argument

that the fact that Appellant asked or persuaded Schaller to pour

gasoline does not show supervision over him. While it may not

show supervision, it certainly shows -- at a minimum --

Appellant's exercise of decision making authority, his

recruitment of accomplices, and the greater degree of his

participation in planning and organizing the two arson attempts.

Thus, finding no clear error in the district court's

determination of Appellant's role,32 we affirm the district

court's two-level enhancement. United States v. Garc a, 954 F.2d

12, 18 (1st Cir. 1992) (noting that, absent a mistake of law,

sentencing court's role-in-the-offense determination is reviewed

only for clear error).

CONCLUSION
CONCLUSION

For the foregoing reasons, the district court's

judgment and sentence is, in all respects,

Affirmed.
Affirmed

32 Appellant also contends that "[t]he finding that [Appellant]
stood to gain financially from the fire is also erroneous." The
government argued that Appellant -- and not Schaller, who had no
ownership interest in the restaurant or the building -- stood to
gain financially from a fire at the Galeria II and, thus, had a
"claimed right to a larger share of the fruits of the crime."
U.S.S.G. 3B1.1, comment. We need not address this argument as
the district court neither made, nor relied on, this "finding"
when it concluded that adjustment under U.S.S.G. 3B1.1 was
justified. See Sentencing Transcript, page 28. Even assuming

arguendo that such a "finding" were clearly erroneous, we would

nonetheless affirm the district court's adjustment based on the
evidence of Appellant's role in the offense.

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