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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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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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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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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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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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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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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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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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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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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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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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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