United States v. Ruiz

United States Court of Appeals
For the First Circuit

No. 95-1286

UNITED STATES,

Appellee,

v.

SANTO RUIZ,

Defendant - Appellant.

No. 95-1287

UNITED STATES,

Appellee,

v.

VIRGILIO RUIZ,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Stahl and Lynch, Circuit Judges,

and Woodlock,* U.S. District Judge.

John C. Doherty , by appointment of the Court, for appellant

Santo Ruiz.
Virgilio Ruiz on brief pro se.

Kevin J. Cloherty, Assistant United States Attorney, with whom

John M. Griffin, Assistant United States Attorney, and Donald K.

Stern, United States Attorney, were on brief for appellee.

February 12, 1997

*Of the District of Massachusetts, sitting by designation.

STAHL, Circuit Judge. In July 1993, a grand jury
STAHL, Circuit Judge.

indicted defendants-appellants Santo Ruiz and Virgilio Ruiz,

two brothers, for various crimes arising out of a December

1990 fire that destroyed their variety store in Roxbury,

Massachusetts. After a ten day trial, a jury convicted the

defendants of maliciously destroying by fire a building used

in interstate commerce (18 U.S.C. 844(i)), mail fraud (18

U.S.C. 1341), conspiracy to commit the foregoing offenses

(18 U.S.C. 371), and use of fire to commit a federal felony

(18 U.S.C. 844(h)(1)). On appeal, the defendants challenge

the district court's denial of their motions to acquit and

for new trial. They also appeal their sentences. We affirm

their convictions but vacate their sentences and remand for

resentencing.

I.
I.

Sufficiency of the Evidence
Sufficiency of the Evidence

We review de novo the defendants' challenge to the

evidentiary sufficiency of their convictions, construing the

evidence in the light most favorable to the government. See

United States v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert.

denied, 116 S. Ct. 522 (1995). Like the district court, we

"must resolve all evidentiary conflicts and credibility

questions in the prosecution's favor," and, among competing

plausible inferences, we "must choose the inference that best

fits the prosecution's theory of guilt." Id. With this

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standard of review in mind, we turn to the facts of the

case.1

A. Facts

1. Pre-Fire Events

In February 1990, defendant Santo Ruiz opened a

retail business named Brothers Fashions and Multiple Services

("Brothers Fashions"), in the basement area of a three-story

residential duplex. Three of Santo's brothers, Pablo,

Frederico, and co-defendant Virgilio Ruiz, shared an

apartment directly above the store. The duplex comprised six

residential apartments occupied by a total of sixteen

residents, including the building's owner.

1. At the end of the government's case, Santo and Virgilio
Ruiz moved for judgment of acquittal, pursuant to Fed. R.
Crim. P. 29. Because the defendants presented evidence in
their defense after the denial of the initial motion, they
are deemed to have waived review of the earlier motion. See

United States v. de la Cruz-Paulino, 61 F.3d 986, 997-98 (1st

Cir. 1995); United States v. Amparo, 961 F.2d 288, 291 (1st

Cir. 1992). Thus, in reviewing the defendants' sufficiency
of the evidence challenge, we consider, in the light most
favorable to the verdict, the evidence presented in the
defense case. See 2 Charles A. Wright, Federal Practice and

Procedure 463, at 643-45 (1982).

We note also that although defendants' motions for
acquittal and new trial were filed more than seven days after
the verdicts were rendered and the jury discharged, the
motions were timely because, within that seven-day period,
the district court extended the time allowable for making the
motions. See Fed. R. Evid. 29(c) & 33; see also Carlisle v.

United States, 116 S. Ct. 1460, 1463-64 (1996) (holding that,

absent proper time extension, a district court may not
entertain an untimely Rule 29 motion). Thus, we consider the
motions timely and properly preserved for our full review.
See id. at 1471 (explaining that a sufficiency challenge

untimely brought in the trial court is subject to "plain
error" review) (Ginsburg, J., concurring).

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Santo borrowed $10,000 from another brother,

William Ruiz, as the start-up capital for the store;

additionally, Santo incurred a debt of $4000 to William for

the store's fixtures.2 The $14,000 debt remained unpaid in

its entirety through the time of the fire.

The store sold sundry items, including clothing,

shoes, blankets, cosmetics, household products, music albums

and cassettes, beverages and candy. Santo obtained the

store's merchandise for cash from a variety of sources

located in Massachusetts, New Hampshire, New York, Florida,

and California.

Virgilio Ruiz spent much time at the store and

frequently assisted Santo, who did not speak English, with

needed language interpretation. Although Santo was the

putative owner of Brothers Fashions, the evidence suggests

that Santo and Virgilio represented to others a joint

ownership and responsibility for the store. For example,

both Santo and Virgilio signed the lease for the space as

well as the business certificate filed with the City of

Boston.

In early September 1990, Santo and Virgilio

negotiated for the installation of a store security alarm and

jointly signed the agreement with the alarm monitoring

2. William had operated a convenience market in the basement
space before the opening of Brothers Fashions.

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service. The alarm, which could detect heat and motion, was

designed primarily to trigger when a burglar entered the

premises after hours; a sufficient amount of smoke from fire

could also trigger a response. The alarm, however, would not

operate unless the subscriber activated the system by

entering the proper pass code. About two weeks before the

fire, Santo ceased activating the alarm system.

In early November 1990, approximately nine months

after Brothers Fashions opened and about six weeks before the

fire, Santo and Virgilio obtained $40,000's worth of

insurance coverage for the store's contents. During

discussions with the insurance agent, the defendants

specifically asked about the processing and payment of loss

claims. Although such information was not a usual part of

the agent's initial discussions about insurance coverage, in

response to this inquiry, he explained that receipts and

cancelled checks would be required to prove a loss.

Virgilio, representing Brothers Fashions, signed an insurance

finance agreement. Coverage began shortly thereafter when

the brothers tendered a down payment of approximately $750.

The payment schedule provided that a first installment of

approximately $250 would fall due on December 20, 1990.

Santo kept in his possession most of the time the

only set of keys to Brothers Fashions. Before closing the

business each day, Santo would secure the store-front with

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three heavy metal security shutters, each fastened with two

padlocks. The store's back door, which was rarely opened,

measured three-feet wide by four-feet tall and could be

opened only from the inside of the store. It was secured on

the inside with a sliding lock and at least one wooden cross-

bar laid across the door. An outer iron grate, locked from

the inside with a padlock, further secured the back door.

Less than two days before the fire, Brothers

Fashions was fully stocked with merchandise displayed on

clothing racks, shelves, and in display cases.

2. The Fire

Around 2:00 a.m. on Sunday, December 16, 1990, a

fire raged through Brothers Fashions. The close proximity of

the store to a fire station resulted in near immediate

response. Nonetheless, the blaze was serious enough to

warrant the services of some seventy fire department

personnel and over one dozen fire vehicles.

Arriving at the scene, fire-fighters encountered

the metal security shutters lying in the street in front of

the store; the shutters apparently had been blown off the

store-front by a powerful explosion. A fire-fighter in the

first group to reach the back of the building noticed the

store's back door standing open with flames shooting out from

the basement. The fire-fighters extinguished the fire

without forcible entry of the property.

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Normally, when a store stocked with clothing burns,

piles of clothing in various stages of ruin remain. After

the fire at Brothers Fashions was suppressed, however, a

casual inspection of the damaged store revealed very little

burned or charred merchandise; rather, all that was visible

were a few beverage bottles, some canned goods and minimal

charred foodstuffs. The dearth of charred merchandise and

the complete absence of clothing remnants in the store evince

that it was nearly empty when it burned.

All of the apartment tenants, except Virgilio,

escaped unharmed from the burning building. None of the

tenants, including Virgilio, required fire-fighter assistance

to evacuate. Virgilio suffered second and third degree burns

on his ankles, a severe cut above his left eye, and large

bruises below his left eye and across his chest. An

ambulance carried him from the scene to the hospital, where

he remained for eighteen days.

3. Post-Fire Events

Subsequent investigation revealed that the fire

originated in two distinct locations within the store and

burned in an unusual manner. Specifically, the burn pattern

indicated that an accelerant, such as gasoline, had been

poured over a counter and other areas. The building's

electrical and natural gas distribution systems showed no

sign of having caused or contributed to the fire. Following

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the fire, Boston Gas Company, the natural gas provider for

the building, conducted a search of its records for the

period from 1984 through the time of the fire for any reports

of gas leak repairs at the building. The search revealed

nothing.

Sometime within the first two weeks after the fire,

John Greenaway, who had been hired for carpentry work on the

premises, opened up the boarded-up store so that Santo could

retrieve an empty clothes rack. In January 1991, Santo and

Virgilio prepared, jointly signed and submitted a claim to

their insurer -- via certified mail -- asserting a contents

loss of some $48,000. The claim detailed various items of

store merchandise and fixtures, including thousands of

dollars' worth of men's and women's clothing, curtains,

shoes, blankets, music albums and cassettes, videos, watches,

candy, household items and toys.

Contrary to the insurance agent's earlier advice

and the insurance company's request, the defendants did not

submit any receipts, invoices, or other records to support

their claim of loss. Instead, the defendants claimed that

the fire destroyed all such records and submitted a couple of

photographs purporting to represent the store merchandise at

the time of the fire and a cancelled check from Virgilio's

bank account for approximately $15 in cigarette tax. When

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asked by the insurance company, Santo could not recall the

names of any of his retail merchandise suppliers.

At various times before trial, Virgilio related his

version of the fire events to his attending physician, a

Boston Fire Department investigator, and, in a sworn

deposition, representatives of the insurance company. He

professed a general inability to recall clearly and gave

somewhat inconsistent accounts of the fire events. To the

extent Virgilio's various stories overlap, they indicate

that: he awoke in the first floor apartment to the smell of

smoke, went to the living room to check the gas heater and

saw smoke coming through the floor; he then heard an

explosion and ran to awaken his sleeping brothers (Pablo and

Frederico) to warn them of the fire; he picked up the

telephone to call the fire department, but the line was dead;

he proceeded to run out the front hallway of the duplex and

down the stairs toward the building's front exit; on his way

out to the sidewalk in front of the duplex, another explosion

occurred and his "fuzzy" socks caught on fire, causing the

injuries to his ankles; at some point, he ran into a door --

perhaps the front door of the apartment unit -- causing his

bruises and the severe cut above his eye.

4. The Defendants' Case

The defendants presented a joint defense, calling

to the stand members of the Ruiz family: Pablo, Frederico,

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Santo, and Rosa (Santo's wife). Pablo and Frederico

testified that, on the night of the fire, Virgilio went to

bed around midnight, and they retired soon thereafter. They

stated that Virgilio later woke them up because of the fire.

Frederico testified that he then dressed quickly and

proceeded out the front door. As he descended the front

stairs, he met Virgilio, who was bleeding from his forehead

and down his face. Frederico and Virgilio ran out the front

of the building together. Frederico was not injured -- by

flame or otherwise -- as he exited. Upon reaching the

sidewalk in front of the building, he noticed fire coming out

of the basement store. Frederico said that he then told the

fire-fighters that Pablo was still inside the building.

Pablo testified that his only avenue of escape from

the burning building was the apartment's back door. He

stated that when he exited the building, he observed two

fire-fighters, who, he says, had been attempting to pry open

the apartment's back door to let him out. Both Pablo and

Frederico testified that they saw fire-fighters force open

the store's back door, which, they claimed, had been closed.

They further claimed that, upon the opening of the back door

-- which measured four-feet by three-feet -- fire-fighters

emerged from within the store wearing full fire-fighting

regalia, including oxygen tanks and masks.

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Santo testified in his defense. He explained that

he initially did not insure the contents of the Brothers

Fashions because he wanted first to see how the business

fared. He testified that only he knew the alarm pass code,

and that he failed to activate the alarm for several weeks

before the fire because of the recurrence of false alarms.

He had deduced that rats entering the store after hours (to

eat candy) triggered the alarm, and he wanted to "kill" the

rodents before further engaging the alarm. He testified that

he complained about the rats to both the owner and to

Greenaway, who, in turn, testified that Santo had never

complained to him about a rat problem.

Santo suggested that a natural gas explosion may

have contributed to the fire. Specifically, he claimed that

about one month before the fire, he called Boston Gas because

he smelled a natural gas leak; contrary to other trial

testimony, he claimed that Boston Gas personnel then came out

to the store and fixed the leak. Santo further testified

that there may have been paint and paint thinner in the

store, as well as household detergents, that might have acted

as an accelerant for the fire and would account for the

peculiar burn patterns.

Santo testified that on December 15, 1990, the day

before the fire, the store was fully stocked. That night, he

explained, he had closed the store between 5:00 p.m. and 6:00

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p.m. and secured the front entrance. He insisted that he

left the back door fully secured and that he retained in his

possession the only set of store keys. He then went to his

home in Dorchester. The next morning, around 6:00 a.m., he

received a call at home informing him of the fire. He walked

to the store (his car was not operational), arriving around

8:00 a.m..

Santo further testified that, upon his arrival at

the fire scene, he saw ten to fifteen people in and around

the burned store, including people from Boston Gas, and

Greenaway's son. He said the people were removing half-

burned items from the store. He admitted at trial that he

had never previously mentioned his observance of the looters,

even to the insurance company. He also testified that he did

not attempt to stop the looting because the merchandise taken

was, in any event, ruined.

Santo admitted that, although he did not speak or

understand English and had to rely on Virgilio for

translation, he fully understood his actions when he signed

the lease to the store, the business certificate, the alarm

system contract, and the insurance claim for $48,000 in lost

inventory. Santo denied removing, or asking anyone to

remove, the merchandise from Brothers Fashions before the

fire. He also denied lighting the fire or asking anyone to

light the fire.

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The defendants painted a picture of a prosperous

store that earned some $600 to $1000 in retail sales per day,

suggesting the absence of a motive to collect insurance

proceeds. The defendants also attempted to establish the

bias of various trial witnesses. For example, they produced

(contradicted) evidence of the unlawful absence of smoke

detectors in the duplex, suggesting that the owner had her

own motive to collect insurance proceeds. The defendants

also suggested that the carpenter Greenaway was biased

because he had married the owner's niece in 1990 and, upon

the owner's death, the owner's niece stood to inherit the

building.

B. Arson and Conspiracy Counts, Analysis

1. Relevant Law

To prove a violation of 18 U.S.C. 844(i), the

government must establish that the defendants: (1)

maliciously damaged or destroyed, or attempted to damage or

destroy, (2) by fire or an explosive, (3) a building or

personal property used in interstate commerce or in any

activity affecting interstate commerce. The government

sought to prove that Virgilio set the fire, and Santo either

aided and abetted him, or reasonably could foresee that

Virgilio would set the fire in furtherance of an unlawful

conspiracy.

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To prove aiding and abetting on the part of Santo,

the government had to prove that Virgilio committed the

arson, and that Santo associated himself with, and

participated in, the arson "as something he wished to bring

about, and sought by his actions to make it succeed." United

States v. Loder, 23 F.3d 586, 590-91 (1st Cir. 1994)

(internal quotation marks and citations omitted); see Nye &

Nissen v. United States, 336 U.S. 613, 619 (1949).

Alternatively, to convict Santo of the substantive arson

offense, the government had to establish that Virgilio's

setting of the fire was a foreseeable act done in furtherance

of their unlawful conspiracy. See Pinkerton v. United

States, 328 U.S. 640, 647 (1946).

To prove the underlying conspiracy -- a predicate

to Santo's Pinkerton liability as well as a substantive count

in the indictment -- the government needed to establish the

defendants' knowledge and voluntary participation in the

agreement, and an overt act in furtherance of it. See United

States v. Sawyer, 85 F.3d 713, 742 (1st Cir. 1996). "The

agreement need not be explicit; a tacit agreement will

suffice." Id. To establish voluntary participation, the

government must prove both the intent to agree and the intent

to effectuate the object of the conspiracy. See id. Of

course, direct evidence is not required to prove either the

agreement (which may be inferred from circumstances) or the

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defendants' participation in it. See id.; United States v.

Moran, 984 F.2d 1299, 1300 (1st Cir. 1993).

2. Application

The evidence more than adequately established that

someone deliberately torched Brothers Fashions with the aid

of an accelerant. Further, there is little question that the

store was used in an activity affecting interstate commerce

both because it was a rental property, and because the

merchandise purchased for resale moved in interstate

commerce. See United States v. DiSanto, 86 F.3d 1238, 1247-

48 (1st Cir. 1996) (holding that "rental property is per se

sufficiently connected to interstate commerce" for purposes

of 844(i)) (explaining further that the jurisdictional

element is met where restaurant received food supplies that

travelled in interstate commerce); see also Russell v. United

States, 471 U.S. 858, 862 (1985).

The more troubling question is whether or not the

evidence sufficiently proved that Santo and Virgilio were the

parties criminally responsible for the fire. We note that

the case against the defendants is largely circumstantial.

Circumstantial evidence does not represent the proposition in

question, but asserts "'something else, from which the trier

of fact may either (i) reasonably infer the truth of the

proposition, . . . or (ii) at least reasonably infer an

increase in the probability that the proposition is in fact

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true.'" U.S. v. Clotida, 892 F.2d 1098, 1104 (1st Cir. 1989)

(quoting 1 D. Louisell & C. Mueller, Federal Evidence 94

(1977)). Although circumstantial evidence requires an

inferential step in its proof, there is "no legal

distinction" between circumstantial and direct evidence in

the context of a Rule 29 motion. Id.; see Olbres, 61 F.3d at

971. We recognize that "the government's proof may lay

entirely in circumstantial evidence," United States v.

Valerio, 48 F.3d 58, 63-64 (1st Cir. 1995); we are, however,

"loath to stack inference upon inference in order to uphold

the jury's verdict." Id.

The government produced direct evidence that Santo

had in his possession the only keys to the store on the night

of the fire, that the store's back door, rarely opened, was

open at the time of the fire, and that Brothers Fashions had

been emptied of almost all merchandise at that time. The

jury thus could rationally infer that, because only Santo had

the means to access the store that evening, he opened the

back door from the inside of the store sometime before the

fire. Santo's exclusive access also permits the conclusion

that he was involved with the removal of the store's

merchandise before the fire. The jury could infer that his

new and uncorroborated testimony about looters was a

fabrication to account for the lost merchandise -- a

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fabrication intended to cover up his knowledge of and

involvement in its removal.

The jury could conclude that Santo lied when he

testified that he discontinued activating the security alarm

shortly before the fire because of rats. From this untruth,

the jury could infer that Santo's unexpressed reason for

failing to engage the alarm was to nullify its ability to

detect both the removal of merchandise and the fire. The

jury could further find that Santo lied when he stated that

he left the store's back door secured on the night of the

fire and that, in fact, he left it open for Virgilio to set

the fire.

A jury could rationally infer that Virgilio

personally set fire to Brothers Fashions. Virgilio, the only

apartment tenant injured by the fire, had severe burns on his

ankles, consistent with direct and prolonged exposure to

flame; yet Frederico, who exited the building in the same

manner and through the same area as claimed by Virgilio,

testified that he was not injured in any manner and that he

did not encounter any fire until he reached the sidewalk in

front of the building, where he viewed the fire emanating

from the store. The jury could also choose not to credit

Virgilio's unembellished and confused account of the cause of

the injuries to his face and body and infer that, in fact, he

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suffered those injuries escaping the store (perhaps out the

small back door) after lighting the fire.

The jury could further find that Santo lied when

testifying that: (1) he had nothing to do with the removal of

the store's contents, (2) he observed looters at the store

the morning after the fire, and (3) Boston Gas repaired a gas

leak at the store one month before the fire. The jury could

also conclude that Virgilio lied about the source of his

injuries. Lies such as these legitimately support a finding

of guilt. See United States v. Hadfield, 918 F.2d 987, 999

(1st Cir. 1990) (finding inference of guilt could have been

bolstered by defendant's "tall tale"); United States v.

Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989) (explaining

that the jury's disbelief of defendants' story allows

legitimate inference "that the fabrication was all the more

proof of their guilt").

As to motive, although the government did not

produce evidence that Brothers Fashions was a failing

business,3 the defendants clearly stood to gain from the

insurance proceeds. Moreover, the jury could have given due

weight to the fact that the defendants did not have insurance

for the first nine months of the store's operation, obtained

it only six weeks before the fire, and expressed peculiar

concern about claim payments and proof of loss requirements.

3. Santo did, however, owe $14,000 to his brother, William.

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Further, the fire occurred just four days before the due date

of the first installment payment, but after the down payment

had already triggered coverage.

In sum, although not overwhelming, the evidence was

sufficient to prove beyond a reasonable doubt that (1) Santo

and Virgilio conspired to set afire Brothers Fashions, (2)

Virgilio set the fire, (3) Santo assisted Virgilio in this

task by providing access to the store and by failing to

engage the alarm, and (4) Santo reasonably could foresee that

Virgilio would set the fire in furtherance of the conspiracy.

Although the evidence does not compel a finding of guilt, it

need not "exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except guilt."

United States v. Laboy, 909 F.2d 581, 588 (1st Cir. 1990).

The jury was "free to choose among reasonable constructions

of evidence," id., and the trial evidence, as a whole,

permits a conclusion of guilt beyond a reasonable doubt. See

id. We cannot say that the jury's verdict on the arson and

conspiracy counts was irrational.

C. Mail Fraud

Little discussion of this count is necessary. To

prove mail fraud, the government must establish: "(1) the

defendant's knowing and willing participation in a scheme or

artifice to defraud with the specific intent to defraud, and

(2) the use of the mails . . . in furtherance of the scheme."

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Sawyer, 85 F.3d at 723. There was more than adequate

evidence to prove that Santo and Virgilio intentionally

agreed to collect insurance proceeds fraudulently, and

together submitted, by mail, a false insurance claim for

merchandise they knew had not been lost in the fire. We will

not disturb the jury's verdict on this count.

II.
II.

Motion for New Trial
Motion for New Trial

The defendants alternatively challenge the district

court's denial of their new trial motions, claiming that, on

the weight of the evidence, their convictions constituted a

miscarriage of justice. A district court's power to order a

new trial is greater than its power to grant a motion for

acquittal. See United States v. Rothrock, 806 F.2d 318, 318

(1st Cir. 1986). In considering a new trial motion, the

court may consider both the weight of the evidence and the

credibility of witnesses. See id. at 321. Where a new trial

motion is based upon the weight of the evidence, the court

may not order a new trial "unless it is quite clear that the

jury has reached a seriously erroneous result." See id. at

322 (internal quotation marks and citations omitted). We

review the district court's ruling on a new trial motion for

abuse of discretion. See id.

True, the trial evidence was in conflict. The

jury, however, was not compelled to credit Virgilio's account

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of the manner in which he was injured, or Pablo and

Frederico's testimony that fire-fighters forcibly entered the

store's back door. The jury could have agreed with

Virgilio's argument that, given the evident powerful

explosion in the store, his injuries would have been more

severe, or worse, he would not have survived had he been the

arsonist. The jury was warranted, however, in rejecting this

theory.

The strongest competing theory of innocence

concerns Santo's involvement in the arson. Put simply, the

jury could have reasonably found that Santo knew nothing of

the fire before its occurrence, but acted as an accessory

after the fact both to protect Virgilio and to profit from

fraudulently obtained insurance proceeds. Santo insisted in

his testimony, however, that he had the only means of access

to the store on the night of the fire and that he left the

back door secured that evening. In contrast, the government

produced direct, credible evidence that the back door was not

closed at the time of the fire; while the jury might have

found that Virgilio opened the door, or, perhaps, that the

explosion blew the door open (although no witness opined as

such), given Santo's staunch refusal to allow for the

possibility that someone else may have had access to the

store, the jury could and did plausibly find that Santo

opened the door. The evidence that Santo obtained insurance

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coverage and disengaged the alarm shortly before the fire

constitutes further proof of his prior knowledge of, and

involvement in, the arson-for-profit scheme. Finally, other

than generally to deny any involvement with the arson,

Santo's trial testimony did nothing to support the theory

that he was an unwitting dupe in Virgilio's criminal plan.

The largely circumstantial nature of the proof in

this case gave rise to competing plausible inferences, some

pointing to guilt and others to innocence. The jury is

charged with choosing between such inferences, see Olbres, 61

F.3d at 972, and, having had the opportunity to observe

Santo's trial testimony and demeanor, it saw fit to convict

him on all counts. While reasonable people could have found

otherwise, "a trial judge is not a thirteenth juror who may

set aside a verdict merely because he would have reached a

different result." Rothrock, 806 F.2d at 322. Because we

cannot say the jury reached a seriously erroneous result, we

find no abuse of discretion in the court's carefully

considered refusal to grant Santo or Virgilio a new trial.

III.
III.

Jury Composition
Jury Composition

For the first time on appeal, Virgilio complains of

the absence of minority jury members, suggesting an

unconstitutionally disproportionate ethnic representation in

the jury venire. We consider Virgilio's unadorned and

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perfunctory appellate arguments waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that

undeveloped appellate arguments are deemed waived).

Moreover, not only did he fail timely to raise the issue

below, his assertions on appeal are, in any event, inadequate

to meet his burden on the issue. See United States v. Pion,

25 F.3d 18, 22 (1st Cir. 1994) (explaining elements of prima

facie case of unconstitutional disproportionality).4

IV.
IV.

Other Asserted Trial Errors
Other Asserted Trial Errors

Virgilio contends that the prosecutor asked two

questions of Pablo Ruiz that were calculated to inflame

ethnic prejudice in the jury. Some context is in order.

Pablo testified that, although he received many years of

education in the Dominican Republic and earned an advanced

degree in agriculture, he could not find work in the United

States because he did not speak English. When later asked by

the prosecutor how he could remember at trial the time he

went to bed on the night of the fire (some three-and-a-half

years earlier) Pablo replied, "Well, if I can remember what I

studied during 23 years, I should be able to remember a part

of what happened that night."

4. Virgilio also suggests that three of the jury members
were biased because they had relatives in the insurance
industry. Because Virgilio failed to raise the issue below,
and fails adequately to develop it on appeal, we decline to
address it.

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24

After further questioning about the fire events,

during which Pablo's credibility was called into question by

various inconsistencies, the prosecutor rekindled the subject

of Pablo's inability to find agricultural work in the United

States. The following exchange ensued:

[The Prosecutor]: What about California,
. . . you ever tried to get a job in
agriculture in California?

[Court overrules the objection and
directs the witness to answer yes or no]

[Pablo Ruiz]: No.

[The Prosecutor]: What about Texas, did
you ever --

[Court sustains objection].5

In its post-trial order denying the defendants

motions for acquittal and new trial, the district court found

that "the now disputed cross-examination of Pablo Ruiz was

proper, did not constitute a racist appeal to the jury, and,

when viewed in context, was not material in any event." We

agree. We have warned that "courts must not tolerate

prosecutors' efforts gratuitously to inject issues like race

and ethnicity into criminal trials." United States v.

Saccoccia, 58 F.3d 754, 774 (1st Cir. 1995), cert. denied,

116 S. Ct. 1322 (1996). To the extent the disputed questions

here unnecessarily (albeit marginally) invited ethnic or

cultural prejudice, we strongly disapprove. While, however,

5. Defense counsel did not press for any further redress.

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25

the inquiries may have been of borderline relevance and

materiality, it was Pablo who initially offered the

explanation that his inability to speak English precluded his

employment in the field for which he was most qualified.

Under the circumstances of this case, we cannot say that the

prosecutor impermissibly injected into the trial a harmful

appeal to any ethnic bias in the jury by asking these two

questions. See id.6

Virgilio also claims that the prosecutor frequently

"bellowed offensively at defense testimony" and "screamed at

the jury with totally inappropriate accompanying facial moues

and flailing gesticulation." Virgilio did not raise any

objection to the prosecutor's style or manner at trial. In

its post-trial order, the district court found that, "while

the prosecutor's closing argument was loudly and passionately

delivered, it did not exceed the bounds of propriety."

Having failed on appeal to develop his argument or explain,

with any detail, how the prosecutor's conduct prejudiced the

trial, Virgilio cannot prevail on this challenge.7

6. We also note that the district court carefully instructed
the jury, at some length, that it must not draw any adverse
inference from the fact that the defendants were from the
Dominican Republic and were not native English speakers.

7. To the extent Virgilio suggests on appeal that his trial
counsel rendered ineffective representation, that challenge
is not properly before us. United States v. Martinez-

Martinez, 69 F.3d 1215, 1225 (1st Cir. 1995) (explaining that

an ineffective assistance of counsel claim on direct appeal
will not lie absent a sufficiently developed record), cert.

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26

V.
V.

18 U.S.C. 844(h)(1): Use of Fire to Commit Federal Felony
18 U.S.C. 844(h)(1): Use of Fire to Commit Federal Felony

The defendants also challenge their convictions and

sentences under 18 U.S.C. 844(h)(1), which provides, in

relevant part: "Whoever . . . uses fire or an explosive to

commit any [federal] felony . . . shall, in addition to the

punishment provided for such felony, be sentenced to

imprisonment for 5 years but not more than 15 years. . . ."

The indictment charged Santo and Virgilio with using fire to

commit mail fraud, a violation of 18 U.S.C. 1341. The

defendants claim, however, that "fire" was not used "to

commit" mail fraud, but rather, the "mailing of articles" was

used to commit mail fraud. They contend that fire may have

been used to commit the arson, "but it was not the letter,

envelope or stamp, or handwriting/printing/typing used to

commit mail fraud." In the past, we have implicitly assumed

the legal conclusion that defendants now challenge. See,

e.g., United States v. Lombardi, 5 F.3d 568, 569 (1st Cir.

1993) (involving 844(h)(1) conviction for using fire to

denied, 116 S. Ct. 1343 (1996). Further, to the extent

Virgilio submits new evidence in support of his request for
new trial, that evidence must be brought to the attention of
the district court in the first instance, either in a timely
motion pursuant to Fed. R. Crim. P. 33, or on a writ of
habeas corpus pursuant to 28 U.S.C. 2255.

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27

commit mail fraud where defendant arranged arson fraudulently

to secure insurance proceeds).8

Defendants' challenge calls into question the

meaning of the phrase "uses fire . . . to commit [certain

crimes]." We have not previously been presented with this

issue. We begin our analysis with the statute's language.

See Bailey v. United States, 116 S. Ct. 501, 506 (1995).

Because the word "use" is not defined by statute, we

"construe it in accord with its ordinary or natural meaning."

Smith v. United States, 508 U.S. 223, 228 (1993); see Bailey,

116 S. Ct. at 506. The word is "variously defined as '[t]o

convert to one's service,' 'to employ,' 'to avail oneself

of,' and 'to carry out a purpose or action by means of.'"

Bailey, 116 S. Ct. at 506 (quoting Smith, 508 U.S. at 228-29

(internal quotation marks omitted) (citing Webster's New

International Dictionary of English Language 2806 (2d ed.

1949) and Black's Law Dictionary 1541 (6th ed. 1990))).

We think it plain that the defendants "used" fire

to commit mail fraud within the meaning of 844(h)(1).9 The

8. We also note that the government has frequently charged a
844(h)(1) offense in connection with mail fraud,
specifically where a defendant sought to secure insurance
proceeds for property he had burned. See, e.g., United

States v. Lombardi, 5 F.3d 568, 569 (1st Cir. 1993); United

States v. Bennett, 984 F.2d 597, 604 (4th Cir. 1993); United

States v. Schriver, 838 F.2d 980, 981 (8th Cir. 1988).

9. Defendants also challenge the sufficiency of the evidence
underlying this count. For the reasons discussed above
concerning the arson, conspiracy and mail fraud counts, we

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28

defendants set fire to Brothers Fashions "to carry out" their

scheme to deceive the insurance company into making payment

for claimed losses. Specifically, the fire constituted "the

means" by which the defendants attempted to create the

appearance of a legitimate loss of insured items. While the

defendants also "used" the mails in furtherance of the scheme

to defraud, that does not diminish the fact that,

additionally, they "employed" or "availed themselves of" fire

to effect their scheme. Cf. Smith, 508 U.S. at 230

(explaining that including one method of "us[ing] a firearm"

does not result in excluding others). Finally, the

defendants make no argument that the placement and purpose of

the word "use" in its statutory context undermine the

applicability of 844(h)(1) here. See Bailey, 116 S. Ct. at

506-07 (considering disputed language in the context of

find the evidence sufficient to permit a jury to find that
Santo and Virgilio used fire to commit mail fraud.

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29

overall statutory scheme). No basis for such an argument is

apparent.10

In conclusion, we see no basis to overturn the

defendants' convictions and attendant penalties under 18

U.S.C. 844(h)(1).

VI.
VI.

Sentencing Guideline Challenge
Sentencing Guideline Challenge

Defendants appeal the court's application of the

federal arson guideline. See U.S. Sentencing Guidelines

Manual [hereinafter "U.S.S.G."] 2K1.4(a)(1)-(4) (1994).11

In the sentencing context, we review factual determinations,

which must be supported by a preponderance of the evidence,

for clear error. See United States v. McCarthy, 77 F.3d 522,

535 (1st Cir.), cert. denied, 117 S. Ct. 479 (1996), and

cert. denied, 65 U.S.L.W. 3505 (U.S. Jan. 21, 1997) (No. 96-

5017). We review de novo sentencing issues involving

questions of law, including the applicability of a relevant

10. Moreover, the legislative history of the Anti-Arson Act
of 1982, which amends 844(h)(1) and other statutory
sections, strongly suggests Congress' recognition, in the
context of this statutory scheme, that one can "use fire" to
effect a number of criminal purposes, specifically insurance
fraud. See H.R. Rep. No. 678, at 2 (1982), reprinted in 1982

U.S.C.C.A.N. 2631, 2632 ("Fire is used extensively not only
for the criminal purposes of extortion, terrorism and
revenge, but to conceal other crimes such as homicide, and
for fraud against insurance companies.").

11. Unless otherwise indicated, all guideline citations are
to the November 1994 version of the United States Sentencing
Commission Guidelines Manual, applied (without objection) by
the district court.

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30

guideline. See id. Because the sentencing court enjoys a

unique vantage point and has "special competence" in

assessing the "ordinariness" of a case, we afford it

substantial deference in departure decisions, which we review

only for abuse of discretion. Koon v. United States, 116 S.

Ct. 2035, 2047 (1st Cir. 1996).

The arson guideline provides for different base

offense levels depending on the circumstances of the crime.

Subsection (a)(1) of the guideline authorizes the application

of a base offense level of 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; or (B) involved the

destruction or attempted destruction of a

dwelling.

U.S.S.G. 2K1.4(a)(1) (emphasis added). Subsection (a)(2)

authorizes a lower base offense level, 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; (B) involved the destruction

or attempted destruction of a structure

other than a dwelling; or (C) endangered

a dwelling, or a structure other than a

dwelling.

U.S.S.G. 2K1.4(a)(2) (emphasis added).12

12. The arson guideline commentary further provides,
"Creating a substantial risk of death or serious bodily
injury includes creating that risk to fire fighters and other
emergency and law enforcement personnel who respond to or
investigate an offense." U.S.S.G. 2K1.4, comment. (n.2).

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31

As indicated by the underscored language in the

text of the arson guideline set forth above, the higher base

offense level (24) is warranted under either the first prong

of 2K1.4(a)(1) -- the knowing creation of a substantial

risk of death or serious bodily injury ( 2K1.4(a)(1)(A)) --

or the second prong -- the destruction or attempted

destruction of a dwelling ( 2K1.4(a)(1)(B)). The selection

between this base offense level and the lower level (20) set

forth in the subsequent section, 2K1.4(a)(2), depends upon

either the defendant's mens rea (i.e., whether or not it was

"knowing") in creating the requisite risk, or the type of

structure involved, i.e., dwelling or non-dwelling. If the

fire involved a dwelling, the selection between the base

offense levels depends on whether the defendant destroyed (or

attempted to destroy) it, or merely endangered it.

The defendants offered two rationales to the

district court in support of an application of a base offense

level of 20: (1) it is inconceivable that they would

intentionally create a substantial risk of death or serious

bodily injury to their family members living directly above

Brothers Fashions; and (2) they did not destroy or attempt to

destroy a dwelling, but rather, a store; and the upstairs

residences, only minimally damaged, were merely "endangered"

incidentally to the arson offense.

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32

The government countered that a base offense level

of 24 was warranted because, under the first prong of

2K1.4(a)(1), the defendants had only to "knowingly," not

"intentionally," create the risk of death or injury.

Moreover, the government argued, the defendants satisfied the

"knowingly" requirement because they committed the arson at a

time when they knew residents were in the very building to

which they set fire. The government argued further that the

second prong of 2K1.4(a)(1) warranted a level 24 because

the defendants destroyed or attempted to destroy a dwelling.

The district court observed that a pivotal question

revolved around the meaning of the word "knowingly."

2K1.4(a)(1)(A). The court opined that the definition of

"knowingly" was "a little bit ambiguous" in the context of

the arson guideline. It first observed that, "[o]bjectively,

a rational person perhaps should know that if he set the

gasoline fire in the basement, people living above would be

injured." The court, however, further stated that if it

interpreted "knowingly" as "intentionally," it did not

believe that Virgilio Ruiz intentionally put his brothers in

danger; instead, the court observed, "I think subjectively he

may have had the foolish, but sincere belief that this fire

could be started, that everybody could be quickly evacuated

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33

or even that the dwelling where they lived would not be

destroyed, just the store would be."13

The court then concluded:

Well, I'll tell you what I'm going
to do. I'm going to rate this as a 22.
There is a preamble to the guidelines
which I cannot find right [now] that says
if something doesn't perfectly fit one
category or another, it is permissible to
interpolate.
For example, there is a law that
says if somebody is between a minor and
minimal participant, you can reduce the
role in the offense by 3 rather than 2 or
4 and, in [another case], I [had] to
study the interpolation language at the
beginning of the guidelines. It seems to
me this is a [case] which generally falls
between the two provisions,
[ 2K1.4](a)(1) and (a)(2), essentially
for the reasons [stated above]. And I
think the fairest and legal[ly] most
appropriate thing to do in the
circumstances would be to interpolate and
I'm going to rate this as a 22.14

13. The court appeared to find inapplicable the second prong
of 2K1.4(a)(1) -- "destruction or attempted destruction of
a dwelling." 2K1.4(a)(1)(B). The court observed that the
circumstances of the arson appeared to involve the
destruction of the store, and the endangering, but not the
destruction, of the dwelling. In the apparent absence of an
intent to destroy the whole building, the court impliedly
found the "attempted destruction" alternative also
inapplicable. The government challenges the factual
underpinnings of this conclusion. Finding no clear error at
this juncture, we leave this ruling undisturbed.

14. The court eventually adjusted Santo's base offense level
downward, from 22 to 20, for being a "minor participant" in
the offense, see U.S.S.G. 3B1.2(b), which, combined with

his criminal history category I, yielded a guideline range of
33 to 41 months. The court declined the government's request
to increase Santo's offense level by two points for perjury.
The court selected a 33-month prison term for the arson,
conspiracy, and mail fraud counts, to be followed by the

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34

On appeal, the defendants contend that the district

court erroneously "interpolated" when applying the arson

guideline. They argue that if the court found inapplicable

2K1.4(a)(1), it should have affixed the lower base offense

level provided for in 2K1.4(a)(2), rather than apply an

intermediate level. The government does not appeal the

sentences as calculated, but nonetheless argues that the

higher base offense level was clearly appropriate and that

the defendants, who benefitted from the court's

"interpolation" exercise, have no basis for complaint.

The district court's use of "interpolation" to

affix an intermediate base offense level was an apparent

attempt to invoke a paragraph (now deleted) in the

Introduction to the pre-November 1989 Guidelines Manual.

See, e.g., U.S.S.G. 1A4(b) (1987). The Sentencing

Commission had designated "interpolation" as a form of

departure in which a sentencing court could choose an

intermediate point "between two adjacent, numerically

oriented guidelines rules." Id. Effective November 1, 1989,

however, the Commission deleted that interpolation provision,

mandatory 60 month consecutive term for his conviction under
18 U.S.C. 844(h)(1) (using fire to commit a federal
felony), for a total of 93 months' imprisonment. Virgilio's
base offense level remained at 22, which, combined with a
criminal history category I and the added 60 month
consecutive term, yielded a total range of 93-111 months. On
the government's recommendation, the court affixed a 108-
month prison term for Virgilio.

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35

concluding "that it is simpler to add intermediate offense

level adjustments to the guidelines where interpolation is

most likely to be considered." U.S.S.G. App. C, Amendment 68

(1989). The Commission also stated, however: "This amendment

is not intended to preclude interpolation in other cases;

where appropriate, the court will be able to achieve the same

result by use of the regular departure provisions." Id.

Thus, although the issue is somewhat unclear, it appears that

interpolation between guideline rules is permissible where it

could be properly justified under the normal departure

procedures.

Assuming that the court essentially effected a

downward departure when affixing a base offense level of 22,

we find that because the district court failed to make

specific findings on the defendants' state of mind, we are

unable to resolve either the defendants' contention that the

facts warranted a level 20, or the government's argument that

a level 24 was appropriate. Our inability to settle the

sentencing issue absent such findings requires us to remand

the case for further findings and resentencing. See United

States v. Valencia-Lucena, 988 F.2d 228, 234-36 (1st Cir.

1993) (remanding for resentencing where sentencing court

failed to make reasonably specific findings concerning

foreseeability of drug quantity); see also United States v.

Olbres, 99 F.3d 28, 30, 32 (1st Cir. 1996) (remanding for

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36

clarification of sentencing court's specific willfulness

findings in context of downward departure).

In United States v. DiSanto, 86 F.3d 1238, 1256

(1st Cir. 1996), we stated:

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)(2)] (emphasis
added).

Whether or not the defendant acted "knowingly" calls for an

inquiry into his subjective state of mind when he created the

requisite risk. See id. at 1255 (citing United States v.

Karlic, 997 F.2d 564, 568-69 (9th Cir. 1993)). In this case,

the court explored the various possibilities of a "knowledge"

finding, opining first that a rational person would know that

setting such a fire would cause injury, then observing that

Virgilio did not "intentionally" put others in danger because

he "may" have had the "foolish but sincere belief" in a swift

evacuation of the residents. In the end, the court did not

make any specific findings on either of the defendants' state

of mind but, instead, resorted to interpolation.

The court's reluctance to make the requisite

findings may have been the result of the somewhat unsettled

definition in this circuit of the term "knowingly" in the

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37

arson guideline. See generally, DiSanto, 86 F.3d at 1256-58.

In DiSanto, we discussed at some length the possible

parameters of the word "knowingly." See id. at 1256-58. We

explained that "'the hypothetical knowledge continuum' is

marked by 'constructive knowledge' at one end and 'actual

knowledge' at the other." Id. at 1257 (quoting United States

v. Spinney, 65 F.3d 231, 236-37 (1st Cir. 1995)). In between

these extremes lie various "gradations," including "notice of

likelihood" and "practically certain." Id. Although we

expressed our inclination "to conclude that a showing of

knowledge anywhere along this continuum satisfies application

of 2K1.4(a)(1)(A)," we declined to determine the exact

level of knowledge required for the guideline. Id. at 1257-

58 (finding that government had established the somewhat high

standard of defendant's awareness that the requisite risk was

"practically certain").

Had the district court here actually found that the

defendants acted knowingly when they created a substantial

risk of death or serious bodily injury to someone other than

themselves, we likely would have upheld the finding as not

clearly erroneous, even under the stringent "practically

certain" test. The evidence established that the defendants

set fire to a building basement in the early hours of a

winter morning, knowing that the residential units above were

occupied. "It is difficult to imagine a clearer illustration

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38

of the knowing creation of a substantial risk of death or

serious bodily injury." United States v. Honeycutt, 8 F.3d

785, 787 (11th Cir. 1993) (finding requisite level of

knowledge where defendant, having seen people inside tavern,

threw a Molotov cocktail at the outside corner of the

building) (using "practically certain" test). The sentencing

court, however, must make such a finding in the first

instance, and we will not engage in that initial exercise on

appeal.

Because we remand this case for findings and

resentencing, we think it necessary to clarify further the

definition of "knowingly" appearing in subsection (a)(1), but

not (a)(2), of the arson guideline. See U.S.S.G. 2K1.4.

The guideline's structure "clearly suggests that there must

be a meaningful distinction between the two sections."

DiSanto, 86 F.3d at 1256. As we noted in DiSanto, 86 F.3d at

1257, the Ninth and Eleventh Circuits have adopted the Model

Penal Code's definition of "knowingly."15 In those circuits,

"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 bodily injury was 'practically

15. The Seventh Circuit has also approvingly cited the Model
Penal Code's definition of knowingly in this context. See

United States v. Altier, 91 F.3d 953, 957 (7th Cir. 1996)

(distinguishing "knowingly" from "purposefully").

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39

certain' to result from the criminal act." Karlic, 997 F.2d

at 569 (emphasis added); accord Honeycutt, 8 F.3d at 787; see

also Model Penal Code 202(2)(b) (1985).16

We agree with our sister circuits that the Model

Penal Code's definition gives due regard to the "meaningful

distinction" between the pertinent guideline sections.

Indeed, we have already held that a "practically certain"

finding, which is akin to, but something less than, actual

knowledge,17 satisfies the definition of "knowingly."

DiSanto, 86 F.3d at 1257-58. Thus, we adopt the Model Penal

Code absent a contrary guidelines definition. We acknowledge

our earlier inclination to include all gradations of the

knowledge continuum in this context. Id. at 1257. To the

extent, however, that "constructive knowledge" requires only

16. 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

further 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." Id. at 2.02(7).

17. We have equated "actual knowledge" with "certain
knowledge." Spinney, 65 F.3d at 237.

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40

that the defendant either have had a "notice of likelihood"18

or "should have known" of a substantial risk, see id. at

1257-58 n.30; Spinney, 65 F.3d at 236-37, we now think

something more is needed. For the purposes of the arson

guideline, these particular "constructive knowledge"

formulations appear to establish only "recklessness" or

"negligence," both insufficient to trigger the higher base

offense level. See DiSanto, 86 F.3d at 1256.

On remand, the district court should articulate

specific findings of each defendant's state of mind regarding

the creation of the risk. In order for the higher offense

level to apply, the court certainly need not find that the

defendants "purposefully" or "intentionally" created a

substantial risk of death or serious bodily injury. Rather,

the court need find only that Virgilio and Santo actually

knew that they created such risk, or were aware that the risk

was practically certain. If, on the other hand, the court

supportably finds that one or both of them actually believed

that no substantial risk was created under the circumstances,

a finding of knowledge would not be warranted. See DiSanto,

86 F.3d at 1257 n. 29 (citing Model Penal Code

2.02(7)(1985), which provides that a defendant's actual

18. We have previously characterized this gradation as "an
enhanced showing of constructive knowledge." Spinney, 65

F.3d at 237.

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41

belief in the nonexistence of a fact precludes knowledge

finding).

VII.
VII.

Conclusion
Conclusion

For the foregoing reasons, we affirm the

defendants' convictions, vacate their sentences and remand

for resentencing.

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