Legal Research AI

United States v. Disanto

Court: Court of Appeals for the First Circuit
Date filed: 1996-06-14
Citations: 86 F.3d 1238
Copy Citations
79 Citing Cases

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

                                       

No. 95-1584

                          UNITED STATES,
                            Appellee,

                                v.

                         GERARD DISANTO,
                      Defendant - Appellant.

                                       

                           ERRATA SHEET

     The  opinion of  this  Court issued  on  June 14,  1996,  is
amended as follows:

     Page  20, line 23, is  amended by inserting  "of the impact"
after "assessment" in the United States v. Rivera-G mez, 67  F.39
                                                                 
993, 998 (1st Cir. 1995), parenthetical.

     Page 49, last  line, is amended by changing "Id.  at 872" to
                                                               
"Morillo, 8 F.3d at 872".
                  


                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1584

                          UNITED STATES,

                            Appellee,

                                v.

                         GERARD DISANTO,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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

                                           

                              Before

                     Torruella, Chief Judge,
                                                     

                  Coffin, Senior Circuit Judge,
                                                        

                     and Cyr, Circuit Judge.
                                                     

                                           

     Paul J. Haley, with whom Law Office of Paul J. Haley, was on
                                                                   
brief for appellant.
     John M. Griffin, Assistant United States Attorney, with whom
                              
Donald K.  Stern,  United  States  Attorney,  was  on  brief  for
                          
appellee.

                                           

                          June 14, 1996
                                           


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

Appellant   Gerard  DiSanto   ("Appellant")  was   convicted  for

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

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

of fire  property  used in  or  affecting interstate  or  foreign

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

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

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

affirm  the  district  court's   judgment  and  sentence  in  all

respects.

                FACTUAL AND PROCEDURAL BACKGROUND
                          FACTUAL AND PROCEDURAL BACKGROUND
                                                           

          Presenting the  facts in  the light most  hospitable to

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

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

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

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

          The Galleria  II was a family-style  restaurant and pub

serving   Italian   food   and   pizza,   located  in   Westport,

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

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

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

which  Appellant and Ashness leased  from Dr. Aguiar and Fernando

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

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

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

restaurant  received natural  gas  and food  supplies that  moved

                               -2-


through interstate commerce.  Although very successful during the

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

II's  business   proved  to  be  seasonal   and  business  slowed

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

there  were significant  problems with  the building's  water and

septic  systems and  the relationship  between Appellant  and Dr.

Aguiar  deteriorated  over who  was  responsible to  pay  for the

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

and L pes, as landlords. 

          Among  the  Galleria  II's  employees,  Randy  Schaller

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

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

also responsible for the cash and bookkeeping.  Both Schaller and

McKenna  had longstanding  business relationships  with Appellant

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

Appellant began discussing with  Schaller the need for renovating

the restaurant.  In  addition to correcting the water  and septic

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

installed for  the purpose of increasing liquor  sales during the

peak  summer season.  Appellant  told Schaller that  he wanted to

finance  the renovations  by  burning the  top of  the restaurant

above  the second floor as  the insurance proceeds  from the fire

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

Appellant increased the Galleria II's existing insurance coverage

(building,   contents,  and  premises  liability)  by  purchasing

$90,000   of  business   interruption  insurance,   which  became

                               -3-


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

The proceeds  from the business interruption  coverage could have

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

and septic systems.

          On  or about  February  19, 1992,  after unsuccessfully

attempting   to  hire  someone  else  to  burn  the  top  of  the

restaurant, Appellant attempted to set a fire himself by igniting

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

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

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

attic  because  of  the  open attic  door,  discovered  Appellant

standing  over the  burning stack  of papers  and refused  to get

involved.  During  the days following  his first failed  attempt,

Appellant  asked Schaller if he would help by pouring gasoline on

the  attic  rafters as  part of  a  plan whereby  Appellant would

return later to ignite the gasoline.   After repeatedly declining

to get involved, Schaller finally agreed to assist Appellant.  

          Shortly  after  noon  on  February  23, 1992,  Schaller

poured  gasoline, as  Appellant had  requested, onto  the exposed

attic rafters and  insulation and informed Appellant  that he had

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

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

Westport  Fire  Department  responded  to a  complaint  from  the

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

patrons  and  employees at  the restaurant  had detected.   After

evacuating   the  building,   the  firefighters   discovered  the

                               -4-


gasoline-soaked  boards and  insulation  as well  as evidence  of

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

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

the  attic  that  was  saturated with  gasoline,  representing  a

separate, previous attempt to start a fire. 

          A few  days later, Schaller admitted to the police that

he  had  poured  the  gasoline.    Although  Appellant  told  law

enforcement  officials  that he  would  fire  Schaller when  they

informed  him of  Schaller's  confession,  Appellant never  fired

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

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

federal indictment charging him  with the second attempted arson.

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

enforcement  officials.   As part  of that  cooperation, Schaller

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

telephone -- with Appellant that were recorded by law enforcement

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

the federal grand jury charging Appellant with attempted arson of

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

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

trial,  Appellant  filed  a  motion  in  limine  to exclude  from
                                                         

evidence the  four recorded  conversations between  Appellant and

Schaller,   which  included  incriminating   statements  made  by

                    
                              

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

                               -5-


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

admitted the tapes after certain portions were excised. 

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

witnesses  testified for  the  prosecution  (including  Schaller,

pursuant to  his plea  agreement), the prosecution  presented its

theory that Appellant attempted  to burn the restaurant in  order

to  recover  insurance  proceeds   to  finance  renovations   and

improvements  of  the  restaurant.    The  defense  called  three

witnesses, including McKenna.  Among other matters, the witnesses

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

that  the  business interruption  insurance  was  purchased as  a

result  of significant storms which had caused the Galleria II to

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

February 22,  Appellant  had no  intention  of returning  to  the

restaurant;  and   that  Appellant was  with  McKenna during  the

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

          During the trial, Appellant moved for a mistrial, which

was denied, on the grounds that improper testimony regarding  his

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

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

the evidence, Appellant  moved for judgment  of acquittal on  the

ground that the evidence was  insufficient to establish that  the

Galleria II  was a building  affecting interstate commerce.   The

district court denied both motions.  

                               -6-


          Based  on the  foregoing and  other evidence,  the jury

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

attempted  arson  and  conspiracy  to commit  arson.    Appellant

subsequently  moved  for a  new  trial which  the  district court

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

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

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

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

years.  Appellant  appeals both his conviction  and his sentence.

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

Appellate Procedure. 

                            DISCUSSION
                                      DISCUSSION
                                                

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

          Appellant claims reversible error  in the denial of his

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

Below, Appellant  based his motions for  acquittal on sufficiency

of the evidence  grounds, which included the argument  that there

was  insufficient  evidence  to  prove  the  requisite  nexus  to

interstate  commerce  under  the  federal  arson  statute.2    On

                    
                              

2  The federal arson statute provides:

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

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

                               -7-


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

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

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

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

Clause3 to  regulate interstate  commerce.  Appellant  now argues

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

unconstitutional and that, accordingly, the district court lacked

subject  matter  jurisdiction.   In  the  alternative,  Appellant

argues that under  L pez there is insufficient  evidence to prove
                                  

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

interstate commerce.

          Specifically,  Appellant  now  claims  that  this  is a

simple state arson  case which  Congress has no  power under  the

Commerce Clause to federalize and thereby undercut Massachusetts'

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

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

Appellant insists that  L pez effectively  overruled the  Supreme
                                       

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

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

expresses Congressional  intent to exercise its  full power under

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

property used in an activity affecting interstate commerce within

the  meaning  of  the  federal  arson  statute).    Consequently,

                    
                              

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

                               -8-


Appellant challenges the "continuing  viability" of United States
                                                                           

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

after  Russell  rental   property  is   per  se   "unquestionably
                                                         

sufficiently   connected   to  interstate   commerce   to  confer

jurisdiction"  and  satisfy  the  jurisdictional  element  of the

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

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

"substantially  affect"  nexus  requirement  between  the illegal

activity and interstate commerce,  and reverse his convictions on

the grounds that the  evidence does not prove that  the attempted

arson  of  the  Galleria  II  "substantially affects"  interstate

commerce.

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

                      A.  Standard of Review
                                A.  Standard of Review

          Although  Appellant  failed  to raise  his  L pez-based
                                                                     

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

that  the court lacked jurisdiction  may be raised  for the first

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

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

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

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

4   Appellant did not  make these L pez-based  arguments below as
                                                 
L pez had  not yet been decided.  We note that Appellant does not
               
argue  that we must consider L pez even though rendered after his
                                            
trial because it establishes a new rule for criminal prosecutions
and must be applied retroactively.  See Griffith v. Kentucky, 479
                                                                      
U.S.  314 (1987); United  States v. Melvin, 27  F.3d 703, 707 n.4
                                                    
(1st Cir.  1994).   We  need not  address this  issue, or  decide
whether this  case falls within Griffith,  because, regardless of
                                                  
waiver, Appellant does not prevail on the merits.

                               -9-


constitutionality  of  a federal  statute  de novo.    See United
                                                                           

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

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

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

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

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

constitutional  challenge to  the federal  arson  statute), cert.
                                                                           

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

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

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

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

based constitutional challenge not raised below during  pre-L pez
                                                                           

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

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

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

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

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

even  under  the  more  favorable de  novo  standard,  we  reject
                                                    

Appellant's constitutional and jurisdictional challenges, finding

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

                          B.  Discussion
                                    B.  Discussion

          As  with  the  federal  arson statute  at  issue  here,

Congress  has  often invoked  its  authority  under the  Commerce

Clause  to federalize  criminal  activity.   Appellant points  to

                               -10-


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

evidence  that  the  Supreme   Court's  present  position  is  to

restrictively  interpret the Commerce Clause when it is used as a

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

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

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

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

Court recognized three categories  of activity which Congress may

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

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

interstate commerce, or persons or things in interstate commerce,

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

and  (iii) "those activities that substantially affect interstate

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

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

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

that   these   three  bases   of   congressional   authority  are

analytically  distinct,  reaffirming   the  distinction   between

activities engaged  in interstate commerce  and purely intrastate

activities  having a  substantial effect on  interstate commerce.

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

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

jurisprudence to define the extent of Congress' power over purely

intrastate   commercial   activities   that    nonetheless   have
               
                    
                              

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

                               -11-


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

(emphasis  in original)  (concluding that  transporting equipment

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

alternative criterion without regard to the  "affecting commerce"

test). 

          We consider  the federal arson statute  and the Court's

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

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

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

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

property that is  either "used in interstate  or foreign commerce
                                           

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

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

          Second,   the  federal   arson  statute   contains  the

requisite   "jurisdictional   element"   and  thus   is   readily

distinguishable from the provision  invalidated in L pez.   As we
                                                                  

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

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

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

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

inquiry,  that  the  firearm   possession  in  question   affects

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

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

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

it  contains  a specific  requirement that  the firearm  with the

obliterated serial  number have  been "shipped or  transported in

                               -12-


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

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

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

the  federal arson statute  contains the requisite jurisdictional

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

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

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

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

          Third, while  the federal  arson statute is  similar to

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

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

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

destruction of  business property  that  satisfies the  requisite

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

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

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

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

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

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

history  or  its  conclusion   that  the  federal  arson  statute

constitutionally  regulates  arson   of  business  property  that

satisfies  the requisite  jurisdictional element.   Russell,  471
                                                                     

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

did not  purport to overrule  cases upholding application  of the

Commerce Clause power to wholly intrastate  activities satisfying

                               -13-


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

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

          Furthermore,  we  reject   Appellant's  argument   that

Section 844(i) is unconstitutional because it improperly intrudes

into Massachusetts' primary authority for defining and  enforcing

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

statute  is  a  criminal  law  it indeed  intrudes  upon  states'

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

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

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

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

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

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

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

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

constitutional limits  of the Commerce Clause,  it withstands the

challenge that it  interferes with the states' ability  to define

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

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

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

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

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

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

          Because  we  find no  basis  to  question the  presumed

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

court  properly  had  subject-matter  jurisdiction  conferred  by

                               -14-


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

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

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

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

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

that element deprived of judicial jurisdiction.").

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

          With  respect  to  Appellant's  claim  that  there  was

insufficient  evidence  to  sustain  his  convictions,  Appellant

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

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

most  agreeable  to  the  government,  is  adequate  to permit  a

rational  jury to find each  essential element of  the offense of

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

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

disposition of a motion  for judgment of acquittal is  subject to

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

evidence in the  light most compatible with  the verdict, resolve

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

judgment  whether  a rational  jury  could  find guilt  beyond  a

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

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

          After thoroughly  reviewing  the record6  and  applying

these  straightforward rules,  we are  convinced that  a rational
                    
                              

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

                               -15-


jury  could  have  found  beyond  a  reasonable  doubt  that  the

government  had  successfully  proved  each of  the  elements  --

including,  as we  discuss more  thoroughly below,  the requisite

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

conspiracy convictions.  Credibility determinations  are uniquely

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

and the verdict if  the evidence can support  varying inferences.

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

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

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

the  jury  chose  to  believe  the  testimony  presented  by  the

government, particularly  that of Schaller,  and disbelieve  that

presented by the defense was well within its province.  

          As part of our sufficiency  of the evidence review,  we

must determine  whether the  requisite jurisdictional  element is

met.  Because  it constitutes a  jurisdictional predicate of  the

substantive  offense, this  "jurisdictional element,"  like other

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

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

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

de minimis connection to interstate commerce in order  to satisfy
                    

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

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

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

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

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

                               -16-


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

on the character of a  fictitious building in determining whether

it was sufficiently connected to interstate commerce). 

          On appeal, Appellant argues that there  is insufficient

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

affecting interstate commerce,  because under L pez  the evidence
                                                             

does  not  prove  that   the  building  "substantially   affects"

interstate  commerce.  Because Appellant did not raise this L pez
                                                                           

argument  below, we  review  only for  plain  error the  district

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

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

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

'affect[s] substantial  rights.'"); United  States  v. Brand,  80
                                                                      

F.3d 560, 567-68 (1st Cir. 1996) (discussing Olano).
                                                            

          We  find no plain error.   At the  time of the district

court's decision, L pez had not yet been decided and there was no
                                 

reason  for  the district  court  to  question  the viability  of

Russell or  Medeiros.  Under  Medeiros, the government  need only
                                                

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

interstate commerce  in order  to sustain  a conviction  under 18

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

government presented uncontested evidence  that the object of the

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

commercial establishment,  the Galleria II restaurant.   The jury

was  presented  with evidence  that  Appellant  and his  partners

rented  the building; that the building was supplied with natural

                               -17-


gas  which   traveled  in  interstate  commerce;   and  that  the

restaurant  received  food  supplies   for  its  operation  which

traveled in  interstate commerce.  Indeed,  Appellant conceded at

oral  argument  that  the  building  was  used  as  a  commercial

establishment which  received food  supplies and natural  gas for

its  operation  that  travelled  in  interstate  commerce.    The

district court correctly instructed  the jury that the government

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

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

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

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

minimis   requirement,  and   we  therefore   reject  Appellant's
                 

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

7  The  court further instructed  the jury: "Interstate  commerce
means commerce or  business between  any place in  one state  and
another place outside that state.  It also means commerce between
places  within  the same  state,  but passing  through  any place
outside that state."  Finally, the court stated:  "Now, business-
related  property,  as   opposed  to  residential  property,   is
considered used  in or  affecting interstate or  foreign commerce
even if  it has only a  de minimis affect [sic]  on interstate or
                                            
foreign  commerce.   For  example,  business-related property  is
considered used in or affecting interstate or foreign commerce if
food or drink which  has moved in interstate or  foreign commerce
is sold there, or if oil or gas which has moved in  interstate or
foreign commerce is  used in  the building."   Appellant did  not
object to this instruction below or specifically challenge  it on
appeal.

8  We need not address Appellant's contention that our holding in
Medeiros  that  the  government  need  only  show  a  de  minimis
                                                                           
connection to interstate  commerce is invalidated  by L pez.   We
                                                                     
merely note that  while the  L pez decision did  not address  the
                                            
amount of  evidence required to prove  an explicit jurisdictional
element  of an offense,  see Flaherty, 76 F.3d  at 974, this does
                                               
not necessarily mean that it is not controlling  when determining
how  significant the connection to interstate commerce must be in
order to satisfy the jurisdictional element, see Denalli, 73 F.3d
                                                                  

                               -18-


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

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

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

connection where  building  used partly  as  commercial  business

received natural gas and items purchased for resale that moved in

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

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

property used in an activity affecting interstate commerce). 

          We only  add this:   Even assuming L pez  requires more
                                                            

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

presented with  sufficient evidence  to support its  finding that

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

activity  affecting" interstate  commerce.   Above,  we found  no

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

conclusion that Congress has  the authority to regulate arson  of

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

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

property is unquestionably" an "activity" that affects interstate

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

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

at   330-31  (finding   arson  of   private  residence   did  not
substantially affect interstate commerce); Pappadopoulos, 64 F.3d
                                                                  
at 527 (same).

9   See  generally,  Thomas  J.  Egan, Note,  The  Jurisdictional
                            
Element of 18 U.S.C.  844(i), A Federal Criminal Commerce  Clause
Statute, 48 Wash. U.J. Urb. & Contemp. L. 183, 208 (1995) (noting
that  "the controversy of   844(i) jurisdiction boils down to one
issue  -- in addition to business property, what types of private
                                                    
property trigger federal jurisdiction in arson cases?") (emphasis
added).

                               -19-


market  for residential  units  and the  'interstate movement  of

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

is  merely  an element  of a  much  broader commercial  market in

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

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

(finding that  building used  in educational business  of college

was building used in  an activity affecting interstate commerce).

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

is per se sufficiently connected to interstate commerce to confer
                   

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

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

uncontested  evidence was  presented  that, at  the  time of  the

attempted fires, Appellant and his partner rented the building in

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

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

activity affecting" interstate commerce  within the meaning of 18

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

          Even assuming further that L pez undermines Russell and
                                                                       

Medeiros' holding regarding rental property, we would nonetheless
                  

affirm  the jury's  finding.   Because  uncontested evidence  was

presented below  that  the  building  was used  as  a  commercial

establishment which  received food  supplies and natural  gas for

its operation that travelled in interstate commerce, the Galleria

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

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

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

                               -20-


address   whether   its  activities   "substantially  affect[ed]"

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

at 1733.

          In  sum, because we are  convinced that a rational jury

could  have found beyond  a reasonable doubt  that the government

had  successfully proved  each  of the  elements,  we affirm  the

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

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

          Appellant also appeals  the denial of his  motion for a

mistrial on the grounds  that improper testimony was prejudicial.

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

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

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

assessment of  the  impact that  a particular  piece of  improper

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

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

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

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

(1994).  

          Appellant argues  that the  district  court abused  its

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

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

The trial transcript shows that  Schaller testified on direct  as

follows:

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

                               -21-


          A:   On a daily basis.

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

          A:   Usually in person.

          Q:   Where was that?

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

          Q:   What type of club is that?

          A:   A gay night club.

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

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

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

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

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

          Although the court seemed  to agree with the government

that  the   information  was  offered  as   "strictly  background

information,"  the  court  was nonetheless  concerned  about  the

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

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

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

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

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

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

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

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

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

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

                               -22-


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

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

without further  comment by counsel,  testimony resumed.   At the

end of trial,  Appellant did not request any additional questions

be asked of  the jurors  or that any  additional instructions  be

given. 

          Based on  the record,  and under the  guiding principle

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

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

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

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

properly weighed the claim of impropriety and determined  that it

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

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

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

Moreover, the district court acted swiftly  by polling the jurors

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

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

in  alleviating prejudice  once  the  jury  has been  exposed  to

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

effectively provided a curative  instruction that the jurors were

not to consider evidence that Appellant operated a gay night club

                    
                              

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

                               -23-


in determining guilt or innocence.  Given the questions asked and

the  responses  received,  we   agree  that  the  district  court

"efficaciously  dispelled" any  prejudicial effect  of Schaller's

statement by  its immediate  and thorough  response.  See  United
                                                                           

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

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

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

given  the overwhelming  evidence of  guilt presented  during the

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

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

overwhelming). 

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

          Third, Appellant appeals the denial of his motion for a

new trial, arguing that the district court  abused its discretion

in denying his motion  in limine11 to exclude from  evidence four
                                          

tapes of  recorded conversations between himself  and Schaller in

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

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

11   When  the  tapes  were  admitted  into  evidence,  Appellant
reiterated  his objections  to  the admissibility  of the  tapes,
which he  first  had  raised  in  his  motion  in  limine.    See
                                                                           
Transcript,  Vol. 5  at 48.    Thus, we  find  the present  claim
properly preserved for appeal. 

12   On  February  24, 1995,  -- fourteen  days after  the guilty
verdict was rendered -- Appellant filed a motion for a new  trial
and to extend time  to file supporting memorandum.   The district
court  denied  both motions  on the  grounds  that they  were not
timely  filed pursuant to Fed.  R. Crim. P.  33 (providing, inter
                                                                           
alia, seven-day filing  period from the  guilty verdict, or  such
              
time  as the court may  fix during the  seven-day period, "unless
based  on the ground of newly discovered evidence" in which event
it may be filed within two  years after final judgment) and  Fed.

                               -24-


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

that the tapes should  have been excluded in their  entirety from

evidence  because  (i) their  probative  value  was substantially

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

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

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

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

partially or  wholly unintelligible  which thereby  rendered them

more misleading than helpful.14  

          Here, the  court listened  to the four  tapes, reviewed

their respective  transcripts, and heard arguments  of counsel on

the  admissibility of  both the  tapes and  the transcripts.   In

                    
                              

R.  Crim. P. 45(b)  (providing that the court  may not extend the
time  for any  action under, inter  alia, Fed.  R. Crim.  P. 33).
                                                  
Because  Appellant's  motion  was  not timely  filed  below,  and
because his arguments on appeal  do not involve "newly discovered
evidence,"  we do  not  address this  motion.   As  we have  held
before,  Fed. R. Crim. P.  33 is jurisdictional  and the district
court is  without discretion to  grant a motion  for a  new trial
that is not timely filed.  See, e.g., United States v. Rogers, 41
                                                                       
F.3d 25,  34 (1st Cir.  1994);  United  States v. Lema,  909 F.2d
                                                                
561, 565 (1st Cir. 1990). 

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

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

                               -25-


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

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

court  found that they were admissible as probative of the issues

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

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

court, however,  did allow Appellant to  make specific objections

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

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

district  court   agreed  with   most  of   Appellant's  specific

objections  and  excluded  those   portions.    With  respect  to

Appellant's  audibility argument, the  district court  only found

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

woefully inadequate  for any  reasonable  person to  understand."

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

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

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

being  given too much weight.  After considering alternatives and

hearing  arguments from  counsel, the  district court  decided to

admit  the tape and allow the transcript because both parties had

stipulated  to the accuracy of the transcript as a true rendition

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

Finally, the  district court gave cautionary  instructions to the

jury that the tapes  were evidence but that the  transcripts were

not.   The district court  also ruled that  the transcripts would

                               -26-


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

at 4-5). 

          We  turn   to  Appellant's  arguments,   reviewing  the

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

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

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

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

The  same  standard  of  review applies  regarding  the  district

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

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

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

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

discretion,' even  where portions  of the taped  conversation are

unintelligible."). 

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

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

probative  value is  substantially  outweighed by  the danger  of

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

                    
                              

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

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

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

                               -27-


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

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

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

statements prove  any  element  of the  alleged  crimes  or  show

consciousness  of guilt;  (ii)  the recorded  conversations  took

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

of  Appellant's  arguments were  made  in  response to  questions

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

conversations  were   intertwined  with  others  that   were  not

relevant.  We find none of these arguments persuasive.

          As the district court  found, the tapes included highly

probative evidence regarding  Appellant's consciousness of guilt,

including admissions.   The tapes were  directly relevant to  the

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

attempted  arson and  the  conspiracy.    Indeed,  we  note  that

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

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

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

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

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

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

only  did  it  corroborate Schaller's  testimony  that  Appellant

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

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

                               -28-


conversation included evidence from which the jury could draw  an

inference "that this money is  being paid because these gentlemen

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

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

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

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

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

Appellant  regarding his attempts to burn the restaurant during a

conversation about whether Appellant  had told anyone about those

efforts.   While Appellant denies telling anybody  else about his

efforts, he  responds  to Schaller's  questions directly  without

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

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

provides  evidence  of  the   conspiracy  between  Schaller   and

Appellant.   The  conversation demonstrates  that, although  they

were confused as to  their recollection of what they  believed to

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

restaurant.   This  sampling of  each of  the four  tapes clearly

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

include statements  by Appellant  that are directly  probative of

both attempts and the conspiracy.

          Appellant  also points  to the  fact that  the recorded

conversations  occurred two  years  after  the alleged  offenses,

arguing that the recordings  are neither closely intertwined with

the charged  offenses  nor helpful  in  establishing  Appellant's

intent  to commit the crimes  charged.  Appellant  cites to three

                               -29-


cases  addressing the  admissibility  of evidence  under Fed.  R.

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

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

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

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

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

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

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

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

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

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

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

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

Appellant also points out that the tapes here are distinguishable

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

recorded conversations in that case occurred immediately prior to

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

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

Because  the  conversations here  occurred  two  years after  the

predicate offenses,  Appellant contends that the  tapes cannot be

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

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

                               -30-


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

charged.  

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

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

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

that  proximity  in  time   is  a  prerequisite  for  determining

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

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

of  any   consequence  or   otherwise  undermines   their  strong

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

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

conspiracy statements made to  a government informant where court

found  statements were an admission corroborating trial testimony

and  reflected  complicity and  consciousness  of  guilt).   Even

assuming,  arguendo,   that  proximity  must  be   considered  in
                             

determining relevance,  we nonetheless find that  even though the

conversations occur  two years after the  attempt and conspiracy,

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

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

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

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

intent  to  commit  the  attempted  arson  or  to  enter  into  a
                

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

complicity  as  well  as the  existence  of  a  conspiracy.   See
                                                                           

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

                               -31-


          While  not   all  evidence  with  probative   value  is

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

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

403.    In reviewing  the  balancing undertaken  by  the district

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

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

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

relative  weighing of  probative value  and unfairly  prejudicial

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

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

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

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

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

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

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

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

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

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

decision on  something other than the  established proposition in

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

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

made  in  response to  questions  or comments  by  the government

witness, nor  that relevant  conversations were  intertwined with

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

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

                               -32-


Even  the  fact that  the  recordings reveal  that  Appellant had

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

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

Appellant tells Schaller  what to say about pouring the gasoline,

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

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

circumstances"20  exist which  warrant reversal  of  the district

court's rulings.21   

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

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

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

trial hearing regarding the admissibility of the tapes shows that

there  were  references to  previous  fires  which arguably  fall
                    
                              

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

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

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

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

                               -33-


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

references   were   excised   by  agreement   of   the   parties.

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

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

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

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

Accordingly, we do not address this argument further.

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

          Lastly,  as  to  Appellant's  audibility  argument,  in

exercising its broad discretion in ruling on the admissibility of

tape  recordings, even where  portions are  unintelligible, Font-
                                                                           

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

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

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

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

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

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

court  nonetheless decided to admit them.  The district court was

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

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

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

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

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

                    
                              

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

                               -34-


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

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

make  the   rest  more  misleading  than   helpful,  because  the

transcript clearly  evidences  that sufficient  portions  of  the

tapes, including  statements by both Schaller  and Appellant, are

audible.    As discussed  earlier,  these  segments are  relevant

because  they  include,  inter  alia,  admissions  by  Appellant,
                                              

tending  to show  consciousness  of guilt  and corroborate  trial

testimony.   Furthermore,  the district  court gave  a cautionary

instruction  to the  jury that  not only  informed them  that the

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

jurors had to draw their own conclusions regarding  their content

and  probative value based on  what they themselves  heard on the

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

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

accord  with  the  law where  the  record  shows  that the  judge

carefully  instructed   the  jurors  that  the   tapes,  not  the

transcripts, were  evidence and that any  differences between the
                    
                              

24    See  n.17, supra.    In  ruling  on Appellant's  audibility
                                
argument, we  add only this:   By not including the  tapes in the
record on appeal, Appellant forfeited the right to their review.

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

                               -35-


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

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

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

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

the  district  court  in  admitting the  tapes  over  Appellant's

audibility objection.

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

          Finally, Appellant appeals his  sentence imposed by the

district court pursuant  to the federal arson  guidelines.26  See
                                                                           

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

pertinent part:

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

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

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

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

                    
                              

26    All  citations to  the  Sentencing  Guidelines  are to  the
November  1994  version,  which  is the  version  applied  by the
district court,  as it  was  the one  in effect  at  the time  of
Appellant's  May 25,  1995,  sentencing.   See  United States  v.
                                                                       
Aymelek,  926  F.2d  64, 66  n.1  (1st  Cir.  1991) (noting  that
                 
district courts should  apply the  version of  the Guidelines  in
effect  at  the  time  of  sentencing,  barring  ex   post  facto
problems).  Here, the applicable guidelines had not changed after
Appellant committed the instant offenses. 

                               -36-


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

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

(restructuring  the  arson  guidelines).   New  language  in  the

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

substantial  risk  of death  or  serious  bodily injury  includes

creating that  risk to firefighters  and other emergency  and law

enforcement personnel who respond  to or investigate an offense."

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

1993)  (finding that  endangering firefighters is  an appropriate

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

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

other circuits had come to the same conclusion). 

          Appellant challenges  the district court's  sentence on

three  separate  grounds.   We  address them  in  turn, reviewing

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

supported  by  a preponderance  of  the  evidence, and  reviewing

questions  of law de novo,  including the scope and applicability
                                   

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

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

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

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

          First,  Appellant  contends  that  the  district  court

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

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

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

overwhelming  evidence  at  trial established  that  his  primary

                               -37-


purpose was to defraud the insurance company and that  Appellant,

while creating some  risk of  death or serious  bodily injury  by

pouring gasoline,  did not  knowingly create a  substantial risk.

While  the record does indicate  that Appellant participated in a

scheme  to defraud the  insurance company,  we conclude  that the

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

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

clearly  erroneous   --  that   Appellant  knowingly   created  a

substantial risk  of death  or serious  bodily injury  to persons

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

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

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

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

obtain   insurance   through   arson   where   defendant  created

substantial  risk  of  injury or  death).    The  arson guideline

instructs that the base offense level  is determined by selecting

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

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

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

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

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

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

calculation,  nor was there  any discussion of  this issue during

the  sentencing  hearing.    Assuming,   without  deciding,  that

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

offense  level  of  19,  we  conclude  that  the  district  court

                               -38-


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

base offense level based on  its finding that Appellant knowingly

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

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

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

money  laundering offenses  where facts  yielded an  initial base

offense level of 35).

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

          Second,  Appellant  argues  that the  district  court's

finding that  Appellant knowingly  created a substantial  risk of

death  or  serious  bodily injury  to  any  person  other than  a

participant in the offense is not supported by a preponderance of

the  evidence.     Whether   a  defendant  knowingly   created  a

substantial  risk of death  or serious  bodily injury  within the

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

first impression in that this court has not previously determined

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

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

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

created  a substantial risk of death or serious bodily injury and

then  decide whether  the defendant  acted knowingly  in creating

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

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

the second is subjective). 

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

                               -39-


          Leaving aside the question of knowledge for the moment,

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

finding that  Appellant created a  substantial risk  of death  or

serious bodily injury to  any person other than a  participant in

the offense.  The  district court based its finding  primarily on

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

gasoline  created   the  potential  for  a   fire  or  explosion.

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

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

between the  place where  the  gasoline was  poured and  anyplace

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

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

confined area which  contained electrical outlets,  an electrical

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

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

indicates that Appellant  only planned to  ignite the fire  after

the  restaurant closed,  the  district court  concluded that  the

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

accidentally  created  a substantial  risk  of  death or  serious

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

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

and others who would respond to the incident.  

          We find no clear error  in this finding of  substantial

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

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

which  Appellant  conceded  during  the  sentencing  hearing  was

                               -40-


appropriate -- of the risks associated with pouring an accelerant

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

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

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

common  sense  in finding  under  earlier  arson guidelines  that

defendant conspired  "to cause the  kind of fire  that recklessly

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

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

created   because   no   fire  actually   occurred,   (Sentencing

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

fact that  fortuitously no one  was injured and  extensive damage

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

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

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

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

          Furthermore, in light of  the federal arson guidelines'

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

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

given  its finding  that firefighters "could  have been  blown to

smithereens" had a spark  ignited the gasoline vapors (Sentencing

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

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

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

spectacular fire  is planned near an occupied building, a finding

of  reckless  endangerment to  firefighters would  be based  on a

common  sense understanding of the  risks of putting  out a major

                               -41-


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

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

that  Appellant  planned  a  "spectacular fire,"  the  sentencing

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

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

associated with  using an accelerant  in an occupied  building to

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

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

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

          Next, we must decide whether the district court clearly

erred  when  it  found  that  Appellant  knowingly  created  this
                                                            

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

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

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

F.3d at 1224.

          Looking  first  to the  statute, we  note that  the two

highest  base offense  levels  in the  federal arson  guidelines,

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

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

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

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

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

risk.    This structure  clearly suggests  that  there must  be a

                    
                              

27   In  Medeiros, we  affirmed the  district court's  finding of
                           
"reckless endangerment"  under the earlier arson  guidelines.  We
consider  the facts supporting such a finding to be relevant to a
finding of "substantial risk" under the amended guidelines.

                               -42-


meaningful distinction between the  two sections.  See Honeycutt,
                                                                          

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

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

structure   of  the   arson  guidelines,   we  conclude   that   

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

finding that the defendant "knowingly" created a substantial risk

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

that defendant  recklessly (or  negligently) created such  a risk

which  would   more  appropriately   trigger  application   of   

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

observation,   no  guidance  is   gleaned  from   the  Sentencing

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

usual rule  of  giving  an undefined  statutory  term  its  plain

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

different  things  in  different  contexts."   United  States  v.
                                                                       

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

          Our own precedent is of little help because, while this

court  has  addressed  the   application  of  the  federal  arson

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

28  In discussing   2K1.4's  application note about firefighters,
the  Honeycutt   court  concluded   that  knowledge  alone   that
                        
firefighters  will respond to a fire "cannot suffice to satisfy  
2K1.4(a)(1)."   The court  reasoned that  if that knowledge  were
alone sufficient  then    2K1.4(a)(2) (creation of  a substantial
risk of death or  serious bodily injury)  would be subsumed by   
2K1.4(a)(1) (knowing creation of that risk).  As the court noted,
"fires  are  inherently   dangerous,  and   the  knowledge   that
firefighters  and emergency  personnel respond  to  virtually all
fires can ordinarily  be presumed."   Honeycutt, 8  F.3d at  787.
                                                         
"The  arsonist must  know that  a specific  fire for  some reason
poses a substantial  risk of  death or serious  bodily injury  to
firefighters and emergency personnel who may respond."  Id.
                                                                     

                               -43-


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

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

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

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

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

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

required under  the highest  offense level where  the substantial

risk was created knowingly by the defendant.

          Turning to our fellow circuits,  we note that the Ninth

Circuit, and  later the Eleventh Circuit,  adopted the definition

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

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

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

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

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

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

defendant was aware that  a substantial risk of death  or serious
                    
                              

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

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

Model Penal Code    2.02(2)(b) (1985).  The Model Penal Code also
                          
states that  "[w]hen knowledge of  the existence of  a particular
fact is an element  of an offense, such knowledge  is established
if  a person  is aware of  a high  probability of  its existence,
unless he actually believes it does not exist."  Model Penal Code
                                                                           
  2.02(7) (1985).

                               -44-


bodily  injury  was  'practically  certain' to  result  from  the

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

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

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

finding  it unnecessary  where the  district court  could clearly

conclude from  the facts whether  the defendant knew  his actions

created a substantial  risk of  death or  serious bodily  injury.

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

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

business hours which put  firefighters in severe jeopardy because

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

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

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

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

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

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

court concluded  that defendant's actions could  fit under either

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

court found that defendant knowingly created the substantial risk

given  that  people in  the  residence  adjacent to  the  burning

building  were likely  to  be asleep  and windy  conditions would

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

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

placing  firefighters at  a  substantial risk  by committing  the

arson  in weather  conditions that  would make  extinguishing the

fire extremely difficult.  Id.
                                        

                               -45-


          As  this  relevant  case  law  provides  at  least  two

distinct  approaches, we  find  it helpful  when considering  the

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

hypothetical  knowledge continuum"  is  marked  by  "constructive

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

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

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

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

"shared  knowledge"  requirement  in prosecution  of  aiding  and

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

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

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

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

knowledge anywhere  along this continuum satisfies application of

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

with  the guidelines'  mandate that  a meaningful  distinction be

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

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

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

we  need not  definitively resolve  what level  of knowledge,  in

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

30  "Constructive knowledge is the law's way of recognizing that,
given an awareness of certain subsidiary facts, a person is quite
likely to know, can be expected to know, or at  least should have
known that a further fact existed."  Spinney, 65 F.3d at 236.  In
                                                      
contrast, "[a]ctual  knowledge, as the term  implies, reduces the
need  for  inference;  it  suggests the  presence  of  particular
evidence which,  if credited,  establishes conclusively  that the
person  in  question  knew  of  the  existence  of  the  fact  in
question."  Id. 
                         

                               -46-


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

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

bodily  injury  was  'practically  certain' to  result  from  the

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

contention  that  the  district  court's  findings  are   clearly

erroneous.  

          On  appeal, Appellant  argues that  the  district court

clearly  erred   in  finding   that  he  knowingly   created  the

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

substantial  risk   of  death   or  serious  bodily   injury  was

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

Appellant contends  that the  district court's findings  that the

restaurant was occupied at  the time the gasoline was  poured and

that  the   vapors  could  have  been   accidentally  ignited  is

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

record  does not  show by  a preponderance  of the  evidence that

Appellant  was  "practically certain"  that  an  accidental cause

could have started the fire.  

          Giving due deference to  the court's application of the

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

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

was  a  substantial risk  of  death  or  serious  bodily  injury"

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

note that  facts contained in a presentence report ordinarily are

considered reliable evidence for sentencing purposes.  See United
                                                                           

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

                               -47-


district courts possess "broad  discretion to determine what data

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

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

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

offered no evidence to suggest  an inaccuracy in the  presentence

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

          The  record  shows  that,  at  the time  of  the  first

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

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

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

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

the  knowing creation of a  substantial risk of  death or serious

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

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

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

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

and/or "practical certainty."

          At the  time of  the second  attempt, the  record shows

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

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

and  employees were inside.  Appellant knew gasoline was a highly

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

specific  intent of  lighting a  fire after  business hours.   In

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

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

                               -48-


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

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

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

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

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

sufficient for the application of the highest base offense level.

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

certain"  that  a fire  could  ignite  accidentally  or that  the
                                                             

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

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

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

the  knowing   creation  of  a   substantial  risk.     Here,   a
                                                            

preponderance of the evidence supports the finding that Appellant

was  aware that  a substantial  risk of  death or  serious bodily

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

highly  flammable accelerant  for  purposes of  starting a  fire.

Appellant presented no evidence to rebut the preponderance of the

evidence  presented   on  this  point.     Furthermore,  we  find

irrelevant  whether or  not  Appellant was  "practically certain"

that an  accidental ignition  would occur  given that  the record
                             

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

creating a substantial  risk of death  or serious bodily  injury.
                                      

Finally, the district court  again correctly rejected Appellant's

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

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

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

                               -49-


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

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

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

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

defendant "specifically intended to cause  the kind of fire  that

recklessly would endanger others"). 

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

          Finally,  Appellant  appeals the  two-level enhancement

which the district court  imposed for his leadership role  in the

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

in the offense" determinations are fact intensive and we normally

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

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

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

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

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

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

warranted if  the sentencing  court determines that  the criminal

enterprise involved at least  two participants, and the defendant

exercised  control  over,   or  was  otherwise   responsible  for

organizing the  activities of, at  least one other  individual in

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

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

purposes of  determining the overall number  of participants, the

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

must  exercise control  over at  least  one other  participant to

                               -50-


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

determining whether  a defendant is  an organizer or  leader, the

Sentencing Guidelines direct judges' attention  to seven factors,

including "the exercise of  decision making authority, the nature

of  participation   in  the   commission  of  the   offense,  the

recruitment of accomplices, the  claimed right to a larger  share

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

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

illegal  activity,  and  the  degree  of  control  and  authority

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

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

representative   rather  than   exhaustive.").     Finally,   the

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

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

          Here,  it is  undisputed  that  Appellant and  Schaller

participated in the attempted arson of the Galleria II.  Contrary

to  Appellant's  contention  that   he  and  Schaller  were  mere

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

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

method  of committing  the offense;  that Schaller  was persuaded

and, ultimately, recruited by Appellant after Appellant failed to

hire  someone  else   to  commit  the   offense  and  after   his

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

Schaller poured the gasoline  at Appellant's request and informed

Appellant  when  he  was   finished.    Contrary  to  Appellant's

argument,  these factual  findings  satisfy the  requirements for

                               -51-


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

that  the fact that Appellant asked or persuaded Schaller to pour

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

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

Appellant's   exercise   of   decision   making   authority,  his

recruitment  of  accomplices,  and  the  greater  degree  of  his

participation in planning and organizing the two  arson attempts.

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

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

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

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

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

only for clear error). 

                            CONCLUSION
                                      CONCLUSION
                                                

          For  the   foregoing  reasons,  the   district  court's

judgment and sentence is, in all respects,

          Affirmed.
                    Affirmed
                            

                    
                              

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

                               -52-