United States v. Bucci

United States Court of Appeals
For the First Circuit

Nos. 06-2746, 07-1087

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY BUCCI and DAVID A. JORDAN,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Howard, Circuit Judge,
Stahl, Senior Circuit Judge,
and Besosa, District Judge.*

Robert L. Sheketoff and Anthony Bucci, pro se, for appellant
Anthony Bucci.
Raymond J. Rigat for appellant David A. Jordan.
David A. Hollar, U.S. Department of Justice Criminal Division,
with whom Michael J. Sullivan, United States Attorney, was on brief
for appellee.

May 13, 2008

*
Of the District of Puerto Rico, sitting by designation.
 STAHL, Senior Circuit Judge. Defendant-appellant Anthony

Bucci was convicted for conspiracy to distribute, and to possess

with intent to distribute, over 500 grams of cocaine; possession

with intent to distribute cocaine; and the use or carrying of a

firearm during and in relation to a drug-trafficking crime.

Defendant-appellant David A. Jordan was convicted of conspiracy to

distribute, and to possess with intent to distribute, over 500

grams of cocaine; possession with intent to distribute cocaine; the

use or carrying of a firearm during and in relation to a drug-

trafficking crime; witness tampering; and three counts of making

false statements to the Drug Enforcement Administration ("DEA").

I. BACKGROUND

To the extent that these challenges involve the

sufficiency of the evidence, "[w]e recite the pertinent facts in

the light most favorable to the verdict." United States v. Downs-

Moses, 329 F.3d 253, 257 (1st Cir. 2003). Jordan and Bucci's other

challenges do not involve serious factual disputes or do not demand

immediate resolution on direct appeal.

On July 6, 2004, a grand jury returned an eight-count

indictment1 against Bucci, Jordan, and Francis "Skeeter" Muolo.

1
Count 1 charged the defendants with conspiracy to distribute,
and to possess with intent to distribute, over 500 grams of cocaine
in violation of 21 U.S.C. § 846. Count 2 charged them with
possession with intent to distribute over 500 grams of cocaine
pursuant to 21 U.S.C. § 841(a)(1). Count 3 charged them with using

-2-
Muolo pleaded guilty to the conspiracy and possession charges of

the indictment pursuant to an agreement with the Government. As

part of this agreement, Muolo agreed to provide testimony against

Bucci and Jordan (although he was not, in fact, called to the

stand). He was sentenced to fifty-seven months' imprisonment.

This case involves the robbery of a drug dealer by other

drug dealers, including Bucci, and Jordan, a police officer.

Jordan, a member of the Malden, Massachusetts, Police Department

since 1985, became a narcotics detective during the mid-1990's. In

2003, Jordan renewed an old acquaintance with an individual named

Jon Minotti, a former corrections officer who worked in real estate

and as a plasterer. At some time during their renewed

relationship, Jordan began to purchase marijuana from Minotti, who

dealt drugs to support his own habit. Jordan expressed anger to

Minotti regarding the amount of money that cocaine dealers earned

through their illicit trade.

Sometime during 2003, Minotti informed Bucci, another old

acquaintance for whom he had recently performed plastering work,2

or carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 9214(c)(1)(A). Count 4 charged
Jordan with witness tampering, in violation of 18 U.S.C.
§ 1512(b)(3). Count 5 charged Bucci with another count of
possession with intent to distribute cocaine. Finally, Counts 6
through 8 charged Jordan with making false statements to the DEA,
in violation of 18 U.S.C. § 1001.
2
Minotti and Bucci also engaged in several unrelated drug
transactions. The district court, however, excluded evidence
regarding these deals as unduly prejudicial. Thus, we will not

-3-
of his friendship with Jordan. Also during 2003, Minotti met yet

another drug dealer, Carlos Ruiz,3 from whom he periodically

purchased ounce quantities of cocaine. Minotti introduced Bucci to

Ruiz later that year, but told Ruiz that Bucci's name was "Gino."

In late November or early December 2003, while at the

apartment of a friend, Bryan Raftery,4 Bucci informed Minotti that

he wanted to rob Ruiz, with whom he was angry. Bucci devised a

plan in which Jordan would arrive to "bust" a drug deal between

Minotti and Ruiz, allowing Minotti to escape with the drugs.

Muolo, another friend of Minotti, was recruited as Minotti's

getaway driver. Minotti relayed the proposal to Jordan, who

initially expressed some reluctance at participating.

Undeterred by Jordan's lack of enthusiasm for the scheme,

Bucci proceeded with alacrity. A few days before Christmas, Bucci

directed Minotti to order three kilograms of cocaine from Ruiz on

consider them in our review.
3
Ruiz pleaded guilty to a separate indictment. He received
substantial sentence reductions in exchange for his testimony
against Bucci and Jordan. Additionally, he received safety valve
treatment for which he almost certainly would not have been
eligible had the government disclosed information, adduced in this
case, to the sentencing court concerning numerous threats Ruiz made
against Minotti. The jury, of course, was entitled to credit
Ruiz's testimony, which was mostly corroborated by reliable
evidence, despite these inducements.
4
Raftery, despite a grant of immunity, refused to testify at
the defendants' trial and was held in civil contempt. He
subsequently pleaded guilty to criminal contempt and was sentenced
to probation.

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his behalf. On December 23, after some negotiations, Minotti and

Ruiz settled on a price of either $27,000.00 or $28,000.00 per

kilogram and agreed to meet at Minotti's house at 10:00 a.m. the

next day to complete the transaction. With time running short,

Minotti again solicited Jordan's help. Jordan, although still

ambivalent, proposed that everyone involved in the prospective

robbery meet in the parking lot of the Malden Medical Center the

next day.

Around 8:30 a.m. on December 24, Bucci, in his black S500

Mercedes Benz, license plate number 3802YL, drove to Minotti's

house. Muolo apparently arrived separately. From there, Bucci,

Minotti, and Muolo drove in Minotti's vehicle, a black Chevrolet

Avalanche, to the Medical Center. There, they met Jordan, who was

driving an unmarked police car, a tan Honda. Despite some

lingering reservations, he agreed to participate in the scheme in

exchange for $30,000.00. Jordan suggested that Minotti "escape"

with the stolen drugs through a strip of woods adjacent to the

Medical Center. From there, Minotti could reach a nearby street,

where Muolo would pick him up. Bucci proposed that Jordan call for

back-up to make the bust appear more realistic, but Jordan

demurred.

Unbeknownst to the conspirators, the DEA had tapped

Ruiz's phone as part of an ongoing, mostly unrelated narcotics

investigation. Around December 20, 2003, the DEA intercepted

-5-
communications between Ruiz and Minotti regarding the proposed

transaction. In response, the DEA set up roving surveillance

outside Minotti's residence, commencing at approximately 9:00 a.m.

on December 24. At 9:10 a.m., DEA Agent Jean Drouin and

Massachusetts State Police Sergeant Thomas Quin observed a black

Mercedes parked in the driveway with license plate number 3802YL,

but noted that Minotti's black Chevrolet Avalanche was absent.

When the agents returned at 9:42 a.m., the Mercedes was gone, but

Minotti's Avalanche had returned.

At 9:55 a.m., Ruiz arrived in a maroon Buick Park Avenue.

Ruiz and Minotti left the house together in Ruiz's car to travel to

the Medical Center. After a few seconds, however, Minotti

instructed Ruiz to turn around, under the pretense that he had

forgotten his cell phone. In reality, Minotti was experiencing

doubts about the wisdom of robbing Ruiz. Leaving Ruiz in the car,

Minotti called Bucci to express these concerns. Minotti told Bucci

that the deal would not work anyway, falsely explaining that Ruiz

wanted to be paid before relinquishing physical possession of the

cocaine. Bucci instructed Minotti to hand over the phone to Ruiz.

After a conversation between the two, which Minotti overheard, Ruiz

agreed to bring all of the cocaine to the parking lot of the

Medical Center, to permit Bucci an opportunity to test its quality.

When Minotti and Ruiz arrived at the Medical Center they

pulled alongside Bucci's vehicle, which was positioned against a

-6-
rail, facing outward to the parking lot. Minotti exited the car,

taking with him all three kilograms of cocaine. After observing

Jordan's car entering the parking lot, perhaps twenty or third

yards distant, Minotti immediately fled down an embankment into the

woods carrying the three kilograms with him.

Jordan positioned his car directly behind Ruiz's Buick,

blocking Ruiz (but not Bucci) from escape. Jordan, in plain

clothes, exited the car, shouted "Malden Police," and pointed a gun

at Ruiz. Jordan ordered both Ruiz and Bucci from their vehicles

and frisked both men. Jordan searched Ruiz's car, examined his

license, and performed a warrant check. He did not, however,

perform any similar investigation of Bucci. Jordan then informed

Ruiz, "It's your lucky day. I'm going to let you go. You have a

merry Christmas." Ruiz returned to his car and left the parking

lot. Jordan departed the parking lot as well, driving directly

past Agent Drouin and Sergeant Quin's surveillance location. Bucci

left his car and entered the Medical Center. A few minutes later,

Jordan returned to the parking lot and drove to the entrance of the

Medical Center. Bucci exited the Medical Center, and the two men

had a brief conversation before going their separate ways.

Muolo and Minotti took the cocaine to Muolo's apartment

in Stoneham. Once Bucci arrived, the conspirators opened one of

the bags of cocaine. Taking the cocaine, Bucci indicated that he

planned to sell it and split the proceeds with the others. Because

-7-
Jordan was impatient to receive his share of the money, Bucci,

Minotti, and Muolo decided to give him whatever cash was available

by the end of the night.

Later that afternoon, Ruiz and his brother-in-law,

Armando Lovos, arrived at Minotti's house in a blue SUV. Ruiz

suspected that the drug bust had been a setup, did not believe that

Jordan was a real police officer, and was unsurprisingly furious

with Minotti. Ruiz demanded that the cocaine be returned

immediately. Minotti replied that he had abandoned the drugs in

the woods and refused to return to search for them, ostensibly for

fear that the police would be there. Still unsatisfied, Ruiz

nevertheless left to search for the cocaine in the woods near the

Medical Center. After Ruiz's departure, Minotti called Bucci to

inform him of Ruiz's visit. Bucci suggested to Minotti that Jordan

should confront Ruiz at the Medical Center to demonstrate his

legitimacy. Minotti communicated this suggestion to Jordan, who

agreed to look for Ruiz at the Medical Center.

At the Medical Center, Jordan encountered Ruiz and Lovos.

Jordan took Lovos's identification, but did not run a warrant

check. Instead, he simply instructed Ruiz and Lovos to leave the

area. Recordings from the DEA's wire on Ruiz substantiate that

Ruiz was convinced he had been ripped off and that he knew Jordan

was not an honest policeman. In fact, Jordan's appearance only

reinforced Ruiz's suspicions, as he rightly inferred that one of

-8-
the conspirators had tipped Jordan off that Ruiz and Lovos were

returning to the Medical Center to search for the supposedly

abandoned cocaine.

At about 10:15 p.m., Minotti received a voicemail from

Bucci indicating that he had left money in a "blue tub" outside

Minotti's back door. After finding the money, Minotti took

$5,000.00 for himself to satisfy an unrelated debt and delivered

the remainder to Jordan at his home. Jordan later complained that

the black bag contained only $15,000.00 and demanded the rest of

his payment. Bucci, again via Minotti, promised Jordan that he

would receive the rest of his payment once Bucci was able to sell

the cocaine.

On December 26, Jordan stopped by Minotti's house to make

sure Minotti was unharmed, that Ruiz had not returned, and to

ascertain when he would receive the rest of his money. Jordan

instructed Minotti that, if questioned, he should tell law

enforcement officers that he had been acting as an informant for

Jordan in an attempt to catch Ruiz dealing drugs. Just then, Ruiz

appeared at Minotti's home, accompanied by four or five henchmen.

Jordan left, covering his face in an unsuccessful bid to avoid

recognition.

Ruiz suggested that Minotti should get in the car with

him. Under the pretext of getting his coat, Minotti returned

inside to call Jordan for help. Jordan suggested that Minotti call

-9-
the police and complain about Ruiz trespassing, which Minotti did.

When the police arrived, Minotti informed them of his ostensible

role as Jordan's informant. The police instructed Ruiz, who

eventually admitted to them that he was there to collect a drug

debt, to leave.

At that point, Jordan apparently began to regret his role

in the scheme. At 1:30 p.m. on December 26, Jordan called Agent

Drouin to inquire whether Ruiz was under investigation. During

this conversation, Jordan asked whether the DEA had attempted any

surveillance of Ruiz on December 24. Because Agent Drouin already

suspected Jordan of illegal activity, he told him that, while Ruiz

was a target, no operation had taken place on that particular day.

In an apparent effort to cover his tracks, Jordan informed Agent

Drouin of certain, carefully-selected details regarding the drug

rip-off at the Medical Center. Several of these details, however,

were false.

Next, Jordan contacted Minotti and suggested that they

return the cocaine to Ruiz or pay him for it. Minotti communicated

to Bucci Jordan's desire to undo the robbery. Bucci responded that

this rescission would be "stupid" and dangerous, as he believed

trying to rescind the robbery would confirm Ruiz's suspicions about

the rip-off, compounding their problems. At a meeting in Stoneham,

Jordan returned a portion of his ill-gotten funds to Minotti, and

instructed him to give the money to Ruiz. Despite his reluctance,

-10-
Bucci agreed to surrender his share of the proceeds to Minotti. As

Bucci and Minotti attempted to gather the rest of the cocaine, they

received two frantic messages from Muolo indicating that something

bad had happened. When they arrived at Muolo's apartment, he

informed them that he had flushed the cocaine down the toilet.5

Minotti went home, took $2,000.00 of his wife's money, and met Ruiz

at the Saugus mall to compensate him for the stolen cocaine.

In early May 2004, DEA agents arrested Ruiz. Although

Ruiz refused to cooperate fully against his suppliers in Mexico, he

agreed to provide information regarding the drug rip-off. He

picked Minotti and Bucci out of a lineup. Before Ruiz agreed to

cooperate, Agent Drouin called Jordan to inform him of Ruiz's

arrest, but Jordan expressed very little interest.

On May 19, 2004, Minotti encountered Muolo, supposedly by

chance, at a Dunkin' Donuts. Muolo told Minotti that the police

had asked him to cooperate against Minotti. He warned Minotti not

to answer the phone if he called and asked to meet at a baseball

field at 3:00 p.m. Minotti relayed this information to Jordan, who

instructed Minotti to tell Muolo to "keep his mouth shut" and

indicated that he did not want to talk to Minotti anymore. While

Minotti waited for Muolo at their designated meeting place, DEA

5
Later, Muolo informed Minotti that he had, in fact, given the
cocaine to Bucci and lied to the others at Bucci's request.

-11-
Agent Mark Tully and Sergeant Quin approached Minotti, who agreed

to cooperate by wearing a body wire to a meeting with Jordan.

Minotti arranged to meet Jordan at a skating rink in

Malden. Although Jordan did not directly inculpate himself, he

made a plethora of highly suspicious statements that strongly

suggested that he was part of an unlawful conspiracy of some sort

with Minotti, Bucci, and Muolo. The next day, May 20, Jordan

attempted to speak with Minotti at his home, but Minotti refused to

answer the door. Later, however, at Sergeant Quin's request,

Minotti placed a recorded call to Jordan. During the call, Jordan

expressed further concern about Muolo, directing Minotti to tell

Muolo "not to give the bid out."

That same day, Agent Tully arrested Jordan. Agent

Drouin, supported by several other officers, arrested Bucci outside

of his wife's tanning salon in Malden as he attempted to enter his

black Mercedes. After being informed of his rights, Bucci smugly

taunted the officers, "You didn't get me on any phones."

Eventually, Bucci's black Mercedes was seized and its contents were

inventoried. Of particular interest, the vehicle contained ninety-

one grams of cocaine dispersed in three separate plastic baggies

that were contained within one larger bag; two digital scales;

$6,653.00 in cash; four mobile phones and six separate SIM cards6;

6
A SIM, or "security identity module," card is the device
within a phone that contains the unique information identifying a
particular subscriber.

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and a pager. Officer Jamie Cepero, a Massachusetts state trooper

assigned to the DEA task force, offered expert testimony regarding

the contents of Bucci's black Mercedes. He testified that the

above-mentioned items were probative of drug trafficking. Officer

Cepero opined that the quantity of drugs found in Bucci's car,

ninety-one grams, is inconsistent with mere personal use. Cepero

also testified that the contents of Bucci's car lacked indicia of

personal use, such as straws, mirrors, and razor blades.

On April 12, 2006, following a trial, a jury returned a

verdict of guilty against both Bucci and Jordan on all counts of

the indictment. On November 15, 2006, the district court sentenced

Bucci to a term of 252 months' imprisonment and Jordan to a term of

180 months' imprisonment. The defendants filed timely notices of

appeal.

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 II. ANALYSIS

A. Bucci7

1. Ineffective Assistance

Bucci contends that his trial counsel's performance was

so deficient as to violate the Sixth Amendment and require reversal

of his convictions. "We have held with a regularity bordering on

the monotonous that fact-specific claims of ineffective assistance

cannot make their debut on direct review of criminal convictions,

but, rather, must originally be presented to, and acted upon by,

the trial court." United States v. Leahy, 473 F.3d 401, 410 (1st

Cir. 2007) (quoting United States v. Mala, 7 F.3d 1058, 1063 (1st

Cir. 1993) (internal quotation marks omitted)). Nevertheless, in

an exceptional case, the record may be adequately developed to

permit meaningful review. Id. In this instance, however, we are

unable to draw any reasoned conclusions from the cold record.

Bucci makes several fact-intensive complaints regarding

his trial counsel's purportedly deficient performance. First, he

asserts that trial counsel, in his opening argument, promised to

7
Bucci has filed four pro se motions that remain pending. We
deny Bucci's motion to supplement the record (Docket No. 102) and
his motion to correct the trial transcript (Docket No. 152). These
matters are better addressed by the district court on a petition
for collateral review. We grant Bucci's second motion to
supplement the record (Docket No. 128), given that the document in
question has already been made a part of the record by the district
court. It is not, however, pertinent to any issue pending before
us. Finally, we deny Bucci's motion to file a supplemental reply
brief (Docket No. 155). We require no further elaboration of his
claims of error.

-14-
the jury that he would present an alibi witness, Lisa Murphy, who

would testify that Bucci's activities on December 24 were

inconsistent with the Government's theory of the case. Second,

Bucci complains that trial counsel addressed the prospective

testimony of Muolo during his opening statement, despite the fact

that the Government did not indicate an intention to call Muolo

during its own opening statement. Third, Bucci contends that trial

counsel rendered deficient performance by failing to lay the

foundation for and offer the testimony of Ross Minnoti, Jon

Minotti's brother, who was purportedly willing to testify that Jon

Minotti informed him that Bucci was innocent, and that he was only

implicating Bucci to save his own skin. These three issues are

best left for a collateral proceeding where Bucci will have the

opportunity to develop the record to explicate his claim.

Lastly, we address trial counsel's closing argument.

During closing, trial counsel was twice admonished for making

improper remarks. First, trial counsel asked rhetorically, "If

Br[y]an Raftery made those calls for Anthony Bucci, why didn't he

come in here and tell you about them?" Following an objection by

the Government, the district court gave a forceful limiting

instruction, informing the jury that trial counsel's remarks were

improper and that "the government had intended to call Mr. Raftery

and he, Mr. Raftery, refused to testify. He is absent in this case

because he refuses to be present." Later, trial counsel accused

-15-
the Government of knowingly and deliberately presenting perjured

testimony. Again, the district court instructed the jury that

trial counsel's actions were improper.

Undoubtedly, the limiting instructions issued by the

district judge in response to trial counsel's remarks did little to

advance Bucci's cause before the jury. At the same time, these

events do not independently give rise to sufficient prejudice to

merit reversal of Bucci's convictions. At worst, they may have

cost Bucci some of the good will of the jury. The evidence against

Bucci was overwhelming, and trial counsel's comments and the

corresponding limiting instructions did nothing to add to the

mountain of inculpatory evidence arrayed against him. Federal

agents observed Bucci's vehicle at Minotti's house the morning of

the rip-off; Bucci was observed by federal agents at the scene of

the crime, parked alongside Ruiz; the agents observed Bucci

speaking with Jordan outside the Medical Center immediately after

the rip-off; and cocaine, two digital scales, $6,653.00 in cash,

four mobile phones and six separate SIM cards, and a pager were

found in Bucci's vehicle upon his arrest. Finally, of course,

Minotti's and, to a lesser extent, Ruiz's testimony directly

implicated Bucci in the crime.

2. Matters Related to Severance

Bucci argues that the district court erred by denying his

motion to sever. At issue is Exhibit 24, a recording of a May 19,

-16-
2004, conversation between Bucci's codefendant, Jordan, and

Minotti, in which Bucci's name is mentioned. The recording was

properly introduced against Jordan as an admission. The district

court ruled, however, that Jordan's statements were inadmissible

hearsay in relation to Bucci. The district court denied Bucci's

pretrial motion to sever as well as his trial motion to redact his

name from the statements. To protect Bucci from unfair prejudice,

the district court, on two separate occasions, instructed the jury

that the statements were not admissible against Bucci. Bucci

concedes that his Confrontation Clause rights were not violated

because Jordan testified in his own defense at trial. California

v. Green, 399 U.S. 149, 164 (1970) (holding that "the Confrontation

Clause does not require excluding from evidence the prior

statements of a witness who concedes making those statements").

Thus, the issue at hand is one of evidence rather than

constitutional law.

We "review the denial of a motion to sever only for a

manifest abuse of discretion." United States v. Page, ___ F.3d

___, ___, 2008 WL 820741, at *6 (1st Cir. Mar. 28, 2008).

"[S]everance is particularly difficult to obtain where, as here,

multiple defendants share a single indictment." Id. (quoting

United States v. Casas, 425 F.3d 23, 37 (1st Cir. 2005) (internal

quotation marks omitted)). To merit reversal on the basis of a

district court's denial of severance, a "defendant must show

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'prejudice so pervasive that a miscarriage of justice looms.'"

United States v. Turner, 501 F.3d 59, 73 (1st Cir. 2007) (quoting

United States v. LiCausi, 167 F.3d 36, 49 (1st Cir. 1999)).

"[S]everance is particularly disfavored in conspiracy cases." Id.

As a general matter, we cannot say that the district

court abused its wide discretion in refusing to grant separate

trials at the outset of the proceedings. Our jurisprudence favors

trying co-conspirators together, despite the reality that evidence

admissible against one defendant may be, and often is, inadmissible

with regard to others. See, e.g., id. We see no unusual

circumstances that should have tilted the balance in favor of

severance in this particular case.

Second, we address Bucci's contention that the district

court committed reversible error by issuing a limiting instruction

rather than redacting Bucci's name from the recording and the

transcript provided to the jury. Even where the Confrontation

Clause is implicated, we ordinarily presume that jurors will follow

limiting instructions. United States v. Rodríguez-Durán, 507 F.3d

749, 769 (1st Cir. 2007). Occasionally, however, at least in the

constitutional context, a limiting instruction will not be

sufficient to preserve a co-defendant's rights where the

extrajudicial statement is "powerfully incriminating" and

"'inculpatory on its face.'" Id. (quoting United States v. Vega

Molina, 407 F.3d 511, 520 (1st Cir. 2005)). "Statements that are

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incriminating only when linked to other evidence in the case" do

not merit such scrutiny. Id. (quoting Vega Molina, 407 F.3d at

520) (internal quotation marks omitted).

The district court determined that Jordan's remarks,

while powerfully incriminating as to Jordan, did not directly

inculpate Bucci. Significantly, defense counsel candidly and

explicitly agreed with this assessment while arguing Bucci's motion

to sever. To be sure, Jordan's remarks were neither flattering nor

helpful to Bucci's defense. The recording contains numerous

derisive references to Bucci as well as a discussion concerning

whether Bucci had been arrested and whether he was providing

information to law enforcement. Thus, the recording surely implies

that Bucci participated with Jordan and Minotti in an illicit

undertaking of some species. Nevertheless, we cannot say that the

district court erred by refusing to redact the recording to exclude

Bucci's name. In light of our presumption that jurors follow

limiting instructions such as those given here, the absence of

constitutional error, and the inferential nature by which Jordan's

statements link Bucci to the charged conduct, we find no abuse of

discretion. Moreover, any error was clearly harmless given the

substantial evidence of guilt as described above.8

8
Indeed, to the extent that Bucci claims that Jordan's
statements were prejudicial because they were derogatory, we note
that Bucci's own theory of the case rested on the premise that he
was a drug addict rather than a drug dealer.

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 Finally, Bucci asserts that the prosecutor's closing

remarks made it impossible for the jurors to follow the district

court's limiting instruction. See Vega Molina, 407 F.3d at 522

(reversing conviction where prosecutor implored jury to infer

defendant's guilt from codefendant's redacted confession). Because

he failed to object at trial, we review this aspect of his

challenge only for plain error. Rodríguez-Durán, 507 F.3d at 770-

71. In large part, references to the May 19 conversation were

restricted entirely to the prosecutor's discussion of Jordan.

Neither the prosecutor nor the court were required to remind the

jurors by rote, in each instance the recording was mentioned, that

the recording was not admissible against Bucci. We think that the

district court's two separate admonitions that the jurors should

not consider the May 19 recording as evidence against Bucci were

sufficient to prevent confusion.

Bucci argues that the prosecutor's final summation, when

he called for a guilty verdict against both defendants, was

improper. Following a brief discussion of Bucci's culpability, the

prosecutor stated:

David Jordan, ladies and gentleman, at every
step of this case . . . David Jordan chose to
stand on the side of the criminal instead of
the side of law enforcement. On December 24th
at the Malden Medical Center parking lot, on
December 26th when he was not protecting Jon
Minotti and his family from the men who showed
up at his home, in each of the calls with
Agent Drouin, and on . . . May 19 as well.

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 Ladies and gentleman, the most compelling
testimony in this case, the most compelling
word in this case didn't come from Jon
Minotti. The most persuasive testimony in
this case didn't come from Carloz Ruiz. It
didn't even come from the agents [who]
testified in this case. Ladies and gentlemen,
the most persuasive, the most compelling, and
the most damning words in this case came from
David Jordan's own mouth, both on that tape
and when he got up on that witness stand and
he lied to you.

Ladies and gentleman, I ask you to find both
of these men guilty beyond a reasonable doubt
of all the counts.

Thank you.

It is readily apparent, in context, that the discussion

of the recording concerned Jordan alone. The prosecutor had

already summed up his case regarding Bucci before discussing Jordan

for the final time. By contrast, in Vega Molina, a case upon which

Bucci relies, the prosecutor explicitly requested the jury to

convict the defendant based on the co-defendant's out-of-court

confession, over the objection of the defendant and without a

limiting instruction. 407 F.3d at 522. In Richardson v. Marsh,

481 U.S. 200 (1987), to which Bucci also cites, the prosecutor

argued that information gleaned from a codefendant's confession

supported an inference of guilt. See id. at 205 & n.2. Here, the

facts fall well short of showing such prejudicial conduct.

Finally, to the extent they did invite confusion, we see

very little prejudice in the prosecutor's remarks. As detailed

above, the evidence against Bucci was daunting and his theory of

-21-
innocence scarcely credible. Moreover, the recording was not

highly incriminating of Bucci. While it suggested that Jordan did

not consider him to be an exemplary citizen, the jury already knew

that from the contents of his black Mercedes. Thus, the

prosecutor's comments during closing argument do not warrant

reversal of Bucci's convictions.

3. Courtroom Closures

In a separate pro se brief, Bucci maintains that reversal

of his convictions is necessary because the district court

committed structural error by closing the courtroom to the public

on two occasions. Because Bucci failed to object at trial, we

review only for plain error. See United States v. Thomas, Nos. 98-

1051, 98-1052, 98-1116, 2000 WL 236481, at *2 (2d Cir. Feb. 14,

2000) (unpublished summary disposition) (applying plain error

analysis to purported violation of defendant's right to public

trial).

The Sixth Amendment guarantees criminal defendants the

right to a public trial. Waller v. Georgia, 467 U.S. 39, 46

(1984); Owens v. United States, 483 F.3d 48, 61 (1st Cir. 2007).

Bucci argues that the district court erred by closing the courtroom

during jury selection and later during a contempt proceeding

against Raftery. We decline to address his challenge to the

purported closure during jury selection at this time because it is

not yet ripe. Although Bucci has attempted to submit additional

-22-
evidence to supplement the Spartan record, it remains inadequate to

permit meaningful review. Bucci will have an opportunity, if he so

chooses, to present this argument in a petition for collateral

relief before the district court. At that point, the district

court may hold an evidentiary hearing to test the merits of Bucci's

claim. See id. at 66.

Bucci also argues that the district court erred by

closing the courtroom during the contempt proceeding against

Raftery. During this hearing, the Government called its next

prospective witness, Raftery, to the stand. As expected, Raftery

refused to testify, despite a grant of immunity. He indicated that

he was concerned about potential perjury charges due to conflicts

between his anticipated testimony and the statements he made before

the grand jury and federal agents. The district court placed

Raftery in civil contempt and warned him of the possibility that

criminal contempt charges might be filed against him should he not

testify. Despite these remonstrations, Raftery persisted in his

refusal to testify. At the end of the hearing, the district court

ordered that Raftery be taken into immediate custody.

Bucci's argument is flawed in two ways. First, the Sixth

Amendment's requirement that a trial be public does not apply with

its usual force to criminal contempt proceedings. See Levine v.

United States, 362 U.S. 610, 616 (1960). Here, the district court

specifically indicated that Raftery would be set free if he agreed

-23-
to testify. Thus, the contempt order was civil, not criminal, in

nature. See Int'l Union, United Mine Workers of Am. v. Bagwell,

512 U.S. 821, 827-28 (1994). Civil contempt proceedings are not

governed by the Sixth Amendment and require fewer procedural

protections. See United States v. Winter, 70 F.3d 655, 661 (1st

Cir. 1995) (stating that "a court may impose civil contempt

sanctions pursuant to . . . minimal procedures" but that "criminal

contempt sanctions may be imposed only if the court provides

certain constitutional protections"); accord Santibáñez v. Weir

McMahon & Co., 105 F.3d 234, 242-43 (5th Cir. 1997) (holding that

protections of Sixth Amendment do not apply to civil contempt

proceedings); Northeast Women's Ctr., Inc. v. McMonagle, 939 F.2d

57, 68-69 (3d Cir. 1991) (explaining that "arguments predicated on

the Sixth Amendment are inapposite" to civil contempt proceeding);

In re Di Bella, 518 F.2d 955, 958 (2nd Cir. 1975) (rejecting

challenge to courtroom closure in civil contempt context).

Consequently, not even Raftery himself, much less Bucci, could have

invoked the Sixth Amendment right to a public trial during the

civil contempt hearing.

Second, the contempt proceeding against Raftery was

almost entirely collateral to Bucci's own trial and, thus, any

closure did not infringe Bucci's Sixth Amendment right. See Petito

v. Artuz, 69 F. App'x 26, 28 (2d Cir. 2003) (unpublished summary

disposition) (rejecting defendant's Fifth Amendment challenge to

-24-
court's decision to exclude him from contempt proceeding against

recalcitrant witness); United States v. Melchor Moreno, 536 F.2d

1042, 1047 n.7 (5th Cir. 1976) (explaining that "[t]he usual Sixth

Amendment rights of cross-examination were only peripherally at

stake here, since the hearing did not relate to guilt but to the

collateral issue of whether [a witness's Fifth Amendment] privilege

was properly invoked"); see also Brown v. Kuhlmann, 142 F.3d 529,

541 (2d Cir. 1998) (holding that courtroom closure during trial

itself did not infringe defendant's Sixth Amendment rights where it

involved cumulative testimony related to matter collateral to

charged offense); United States v. Gallagher, 576 F.2d 1028, 1040

(3d Cir. 1978) (finding no error where trial judge cleared

courtroom, not excepting even attorneys, to explore possible self-

incrimination issues related to witness).

During this particular closure, no evidence was presented

against either defendant; the defendants and their counsel were

permitted to remain; and the courtroom was promptly reopened at the

conclusion of the contempt proceeding. In the end, the temporal

proximity and causal relationship between Bucci's criminal trial

and the civil contempt hearing against Raftery did not necessarily

render the two proceedings one and the same. Although Bucci

undoubtedly enjoyed a right to compulsory process under the Sixth

Amendment to call Raftery as a witness, he lacked any converse

right to prevent him from testifying. Put differently, he had no

-25-
cognizable constitutional interest under the Sixth Amendment in

Raftery's refusal to testify when called by the Government. Thus,

although it would have been better practice for the trial judge to

have made specific record findings justifying his decision to close

the courtroom, see Waller, 467 U.S. at 44-47, on these facts and

under a plain error standard of review, Bucci suffered no

constitutional deprivation.

4. Constructive Amendment of the Indictment and Alleged Variances

Bucci argues in his pro se brief that the district court

erred by permitting a constructive amendment of the indictment.

Constructive amendments are forbidden by the Fifth Amendment, which

guarantees defendants the right to be tried only on charges

indicted by a grand jury. U.S. Const. amend V; United States v.

Fornia-Castillo, 408 F.3d 52, 66 (1st Cir. 2005). "A constructive

amendment is considered prejudicial per se and grounds for reversal

of a conviction." United States v. DeCicco, 439 F.3d 36, 43 (1st

Cir. 2006). To determine whether a constructive amendment has

occurred, we examine whether the terms of the indictment were

"altered, either literally or in effect, by prosecution or court

after the grand jury has last passed upon them." Id. (quoting

United States v. Fisher, 3 F.3d 456, 462 (1st Cir. 1993) (internal

quotation marks omitted)). Our review is de novo. United States

v. Hernandez, 490 F.3d 81, 83 (1st Cir. 2007).

-26-
 Bucci also alleges two different but related variances

between the indictment and the evidence adduced against him at

trial. "A variance arises when the proof at trial depicts a

scenario that differs materially from the scenario limned in the

indictment." United States v. Cianci, 378 F.3d 71, 94 (1st Cir.

2004) (quoting United States v. Villarman-Oviedo, 325 F.3d 1, 12

(1st Cir. 2003) (internal quotation marks omitted)). A variance

mandates reversal only where it is both material and prejudicial.

Id.

In his brief, Bucci conflates his constructive amendment

argument with his variance claim. Rather than engage in a futile

endeavor to parse the two, we address them simultaneously. His

underlying challenge lacks merit under either theory. First, Bucci

asserts that while the indictment alleged a conspiracy to

distribute cocaine, the evidence at trial supported only a

conspiracy to commit robbery. Second, Bucci contends that the

indictment was faulty because it failed to allege a Hobbs Act

conspiracy. Bucci asserts that this failure prejudiced him because

some of the jurors may have relied upon the drug rip-off to convict

Bucci of conspiracy to distribute cocaine.

Bucci's challenges appear to rest upon two faulty

premises. First, while it is possible that the evidence could have

supported other charges, a grand jury is under no obligation to

indict every conceivable crime potentially implicated by a

-27-
defendant's conduct. The possible Hobbs Act violation Bucci

describes is not mutually exclusive with the charges contained

within the indictment. Second, Bucci's argument consists of little

more than utter speculation that the jury disregarded its

instructions by convicting him of an uncharged offense. Given the

substantial evidence indicating that Bucci did, in fact, conspire

to possess and distribute cocaine, we cannot infer that any jurors

decided that Bucci did not conspire to possess and distribute

cocaine, but convicted him of that offense, heedless of the law, on

the basis that he conspired to commit robbery. He has utterly

failed to demonstrate either a constructive amendment of the

indictment or a variance between the indictment and the evidence

adduced at trial. He cannot obtain relief on the counterintuitive

theory that the jury could have convicted him of other, additional

crimes that were neither charged nor detailed in the jury

instructions.

5. The Firearm Count

Next, in his pro se brief Bucci argues that the

Government failed to introduce sufficient evidence for a properly

instructed jury to convict him of Count 3 of the indictment,

possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c). We review claims related to

the sufficiency of the evidence de novo. United States v. De La

Cruz, 514 F.3d 121, 141 (1st Cir. 2008).

-28-
 "The basic elements of a § 924(c)[] violation are '(1)

that the defendant committed the predicate drug trafficking crime

. . .; (2) that the defendant knowingly carried or used a firearm;

and (3) that the defendant did so during and in relation to the

specified predicate offense.'" United States v. Flecha-Maldonado,

373 F.3d 170, 179 (1st Cir. 2004) (quoting United States v.

Figueroa-Encarnacion, 343 F.3d 23, 30 (1st Cir. 2003) (alteration

in original)). However, any particular defendant need not have

physically carried the gun for liability to attach. See id.

Rather, under Pinkerton v. United States, 328 U.S. 640 (1946), the

Government may show "that a co-conspirator carried or used a

firearm in furtherance of the conspiracy and that this was

reasonably foreseeable to the defendant." Flecha-Maldonado, 373

F.3d at 179.

At trial, the Government relied on the theory that it was

reasonably foreseeable to Bucci that Jordan would utilize a firearm

during the drug rip-off. Bucci cites to United States v. Medina-

Roman, 376 F.3d 1 (1st Cir. 2004), for the proposition that the

government was required to prove that Bucci knew "to a practical

certainty" that Jordan would carry or use a firearm in furtherance

of the conspiracy. Id. at 5-6. Such reliance is mistaken. In

Medina-Roman, the defendant was not notified of potential Pinkerton

liability during her guilty plea and, thus, the Government was held

to the higher standard associated with aiding and abetting.

-29-
Medina-Roman, 376 F.3d at 3 n.4, 6. Here, the district court

properly instructed the jury concerning Pinkerton liability. See

United States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990)

(holding that a "district court may give a Pinkerton charge even

though the indictment does not plead vicarious liability"). There

was ample evidence for the jury to conclude that Jordan's use of

the firearm was reasonably foreseeable to Bucci.

Bucci's ancillary argument, that the Government failed to

prove a conspiracy to commit a drug trafficking offense, is equally

mistaken. The Government adduced sufficient evidence to convict

Bucci of just such a conspiracy.

6. The Jury Instructions

Next, Bucci contends in his pro se brief that the jury

instructions were erroneous because they presented the jury with an

unfair Hobson's choice. He reasons that the instructions precluded

the jury from finding Bucci not guilty of Count 3 because they

provided for conviction based on either reasonable foreseeability

or actual knowledge. This argument is absurd as a matter of basic

logic. The jury could, of course, have found Bucci not guilty of

Count 3 if it either (a) rejected the government's evidence of

conspiracy or (b) determined that Jordan's use of the firearm in

furtherance of the conspiracy was not reasonably foreseeable and

that Bucci had no actual knowledge that it would be used. It is

permissible for the government to present evidence of guilt tending

-30-
to demonstrate both actual and constructive knowledge. See United

States v. Griffin, Nos. 07-1475, 07-1477, ___ F.3d ___, ___, 2008

WL 1759161, at *5 (1st Cir. Apr. 18, 2008) (affirming conviction

based on evidence of actual knowledge and willful blindness in tax

evasion prosecution).

7. Booker Error

Finally, Bucci argues in his pro se brief that the

district court's application of the Sentencing Guidelines violated

the Sixth Amendment. See United States v. Booker, 543 U.S. 220

(2005). As an initial matter, we categorically reject Bucci's

argument that the remedial Booker opinion was only a temporary fix

subject to an expiration date. While the remedial majority may

have invited Congress to take independent action, see id. at 265,

it contains no indication of eventual constitutional infirmity in

the absence of a Congressional mandate. More specifically, we have

held that Booker requires reversal only where judicial fact-finding

increases the statutory maximum penalty. United States v.

Antonakopoulos, 399 F.3d 68, 79 (1st Cir. 2005). The 168 month

sentence Bucci received for drug trafficking and the 84 month

sentence he received for the weapons charge were both near the low

end of the guidelines' ranges, far below the statutory maximums.

Thus, Bucci's claim of Booker error is without merit.

-31-
B. Jordan9

Jordan contends that the district court erred by

permitting the Government to redact portions of the recording and

transcript of a December 24, 2003, conversation between Ruiz and

Minotti. At trial, Jordan requested that the redacted materials be

included pursuant to Rule 106 of the Federal Rule of Evidence for

purposes of impeachment.

Jordan concedes that the rule against hearsay would have

prevented him from independently offering these statements for

substantive purposes. Rule 106, which codifies the common law

doctrine of completeness, provides that

When a writing or recorded statement or part
thereof is introduced by a party, an adverse
party may require the introduction at that
time of any other part or any other writing or
recorded statement which ought in fairness to
be considered contemporaneously with it.

Fed. R. Evid. 106. We review a district court's rulings concerning

Rule 106 for abuse of discretion. United States v. Millan, 230

F.3d 431, 434-35 (1st Cir. 2000). A defendant must show prejudice

in order to obtain relief. See United States v. Awon, 135 F.3d 96,

9
Jordan argues that the district court erred by determining
that he was subject to a mandatory minimum on the weapons charge
because he brandished the firearm during the drug rip-off. He
contends that brandishing a firearm is an element of the offense
and, therefore, the government was obligated to prove this fact to
a jury in light of Booker. He acknowledges, however, that this
challenge is foreclosed by our decision in United States v.
Lizardo, 445 F.3d 73, 89-90 (1st Cir. 2006), and urges it merely to
preserve his rights for further review.

-32-
101-02 (1st Cir. 1998), abrogated on other grounds by United States

v. Piper, 298 F.3d 47, 57 n.5 (1st Cir. 2002).

Peculiarly, the Government maintains that the purview of

Rule 106 is limited to the order of proof. To the contrary, our

case law unambiguously establishes that the rule of completeness

may be invoked to facilitate the introduction of otherwise

inadmissible evidence. See United States v. Simonelli, 237 F.3d

19, 28 (1st Cir. 2001); Awon, 135 F.3d at 101. Other circuits have

held differently, see, e.g., United States v. Mitchell, 502 F.3d

931, 965 n.9 (9th Cir. 2007), but we adhere to our own precedent.

Nonetheless, the district court did not abuse its

discretion by refusing to require the Government to present the

redacted portions of the December 24 conversation. Jordan contends

that fairness required the admission of the redacted portions

because they undermined the credibility of Minotti and Ruiz and

because the excerpts were unduly fragmented and confusing. Neither

of these arguments is well-founded.

First, we address the issue of credibility. As an

initial matter, we note that the district court permitted defense

counsel to use the redacted statements in cross-examination, and

that defense counsel did so effectively. Although timing may be

important in some situations, we see no such prejudice here.

Moreover, the record is pellucid that defense counsel had abundant

opportunity to impeach both Ruiz and Minotti on numerous different

-33-
grounds. During the extensive cross-examination, defense counsel

was able to reveal the witnesses' myriad (and typically self-

serving) inconsistencies and general dishonesty; drug abuse; drug

dealing and other lawbreaking; use of foul and offensive language;

and the inducement provided by the Government. Frankly, given the

record before us, it is hard to imagine that the jury could have

found either Ruiz or Minotti to be credible absent the

corroboratory evidence supplied by the Government. If the jury

credited their testimony at all, it did so with full knowledge that

both men were scoundrels motivated by the carrot of reduced

sentences (and, in Ruiz's case, revenge). Additional impeachment

would have been cumulative. Thus, the district court acted well

within its expansive discretion by refusing to require the

introduction of the redacted portions of the December 24

conversation pursuant to Rule 106.

Jordan's second contention fares only slightly better.

On appeal, Jordan argues that the excerpts of the December 24

conversation are confusing, but he fails to point to specific

portions that might suggest prejudicial ambiguity. Having

independently reviewed the evidence, we hold that any error was

harmless.

We acknowledge that one excerpt might initially have

generated some confusion. The redacted transcript reads:

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 [Ruiz]: Look, first of all look . . . how did
. . . the guy know that I was going to go back
over there because somebody had to tell him.

[Minotti]: You're out of your mind.

...

[Ruiz]: I already told Tommy to get me his
. . . address, if you don't give [it] to me[.]

Exh. 8(c) (second alteration in original). In context, it is clear

that Ruiz's first statement refers to his second encounter with

Jordan at the Malden Medical Center, when he went back to the scene

in search of his cocaine. The second statement by Ruiz, as

clarified by the redacted material, refers to Bucci. Without the

redacted portions, however, Ruiz's second statement appears to

refer to Jordan instead.

Nevertheless, the error was harmless. First, it is

difficult to see how the mistaken impression possibly caused by the

excerpts might have prejudiced Jordan. The evidence clearly

established that Ruiz believed Jordan to be either a counterfeit or

corrupt policeman. Second, the Government actually clarified on

direct examination that Ruiz was referring to "Gino," not Jordan.

Finally, as explained above, Jordan was afforded ample opportunity

to correct any possible misapprehensions by extensive cross

examination.

III. CONCLUSION

For the foregoing reasons, we affirm both Bucci's and

Jordan's convictions and sentences.

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Affirmed.

-36-