United States v. Flemmi

United States Court of Appeals
For the First Circuit

No. 02-2219

UNITED STATES,

Appellee,

v.

MICHAEL S. FLEMMI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

John H. LaChance for appellant.
Brian T. Kelly, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Virginia M.
Vanderjagt, Assistant United States Attorney, were on brief, for
appellee.

March 25, 2005
 STAHL, Senior Circuit Judge. Appellant Michael Flemmi

("Michael") is a retired Boston police officer and the brother of

gangster Stephen Flemmi ("Stephen"). Until Stephen's arrest in

1995 and subsequent incarceration, he and James Bulger ("Bulger")

ran a criminal enterprise in Boston (the "Bulger/Flemmi group").

In 2000, Michael was indicted and charged with two counts

of obstruction of justice, in violation of 18 U.S.C. § 1503; one

count of perjury, in violation of 18 U.S.C. § 1623; one count of

possession of unregistered machine guns, silencers, and cut-down

shotguns, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d),

5871; and one count of transfer and possession of machine guns, in

violation of 18 U.S.C. § 922(o). The charges were based on

allegations that he helped hide a cache of weapons and lied to a

grand jury in an attempt to impede an investigation of his brother

and other members of the Bulger/Flemmi group.

At Michael's trial, the district court allowed the jury

to hear evidence relating to the Bulger/Flemmi group and Michael's

interactions with that group. The jury ultimately convicted

Michael on all counts. At sentencing, the district court, in

calculating Michael's sentence for the perjury and obstruction of

justice counts, identified murder as the most serious offense

related to his unlawful conduct. On appeal, Michael argues that

the district court erred in admitting the abovementioned evidence

and identifying murder as the relevant offense. We affirm.

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 I. Background

In November 1999, Kevin Weeks ("Weeks"), a member of the

Bulger/Flemmi group, was arrested and indicted (the "Weeks

indictment") by a grand jury in Worcester, Massachusetts (the

"grand jury").1 Soon after his arrest, Weeks agreed to cooperate

with the government and disclosed information about crimes

committed by the Bulger/Flemmi group. Weeks stated that Bulger and

Stephen had committed three previously unsolved murders and buried

the bodies at a specified location in Dorchester, Massachusetts.2

Weeks also said that the Bulger/Flemmi group had an arsenal of

weapons (guns and ammunition) hidden in a structure behind the

house of Michael and Stephen's mother, Mary Flemmi ("Mrs. Flemmi"),

in Boston, Massachusetts. As a result of the information that

Weeks provided, the grand jury amended the Weeks indictment to

include Bulger and Stephen, who were each charged with engaging in

violent racketeering activities, including assault and murder.3

Thereafter, law enforcement agents obtained warrants to

search for the weapons and bodies Weeks had described. On January

13, 2000, agents searched the structure behind Mrs. Flemmi's house

1
Weeks was charged with engaging in a variety of criminal
offenses, including extortion and money laundering.
2
Weeks acknowledged that he had witnessed the murders.
3
Bulger and Stephen had previously been indicted in 1995 (the
"1995 indictment") for engaging in similar racketeering activities,
including murder.

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for the arsenal and, in a secret compartment within the structure,

found a single revolver, along with ammunition and silencers. The

hide, however, contained numerous shelves and gun racks and, thus,

appeared capable of storing a substantial number of firearms. At

the location Weeks identified in Dorchester, the agents unearthed

the skeletal remains of three murder victims, who were subsequently

identified as Arthur Barrett ("Barrett"), John McIntyre

("McIntyre"), and Deborah Hussey ("Hussey"), the latter being

Stephen's step-daughter.

On January 11, 2000, two days before the agents searched

the hide, William St. Croix ("St. Croix"), Stephen's son, visited

Stephen in prison. During the visit, Stephen asked St. Croix to

remove guns Stephen had hidden in the structure behind his mother's

house. St. Croix and his friend, Michael Allen ("Allen"), went to

Mrs. Flemmi's house that same day. Michael was present when they

arrived. St. Croix told Michael that Stephen had asked St. Croix

to remove guns from a hide in the structure because he was

concerned that Weeks, whom he knew to be cooperating with the

government, would disclose the existence and location of the hide.

Michael helped St. Croix locate the hide and load the guns into

bags, which St. Croix and Allen then transported to Allen's

residence.4

4
Some of the guns were later transported to a storage facility
in Florida, while others were buried in Somerville, Massachusetts.
Approximately fifty-four guns were ultimately recovered by law

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Michael's Grand Jury Testimony

On June 7, 2000, Michael was called to testify before the

grand jury, which was still investigating the Bulger/Flemmi group.

Michael was questioned about the structure behind his mother's

house, the hide, the missing guns, and the bodies unearthed in

Dorchester. Michael told the grand jury that "the last time [he]

was in [the structure] was about three years ago." When Michael

was asked whether he had ever seen the hide, or the items recovered

therefrom, before the January 13, 2000 search, he responded,

"Never." Michael also stated that, before January 13, 2000, he

did not know about the hide; had never conversed with anyone about

the hide; had never seen any firearms at his mother's house; did

not know whether there were ever rifles in the hide; and did not

know whose property was recovered from the hide or how it came to

be situated there. Finally, when Michael was asked whether he knew

if Stephen's step-daughter, Hussey, was alive, he answered, "I

don't know." Yet, a few months before, in January of 2000, while

he and St. Croix were visiting Stephen in prison, Stephen confessed

to killing Hussey.

The grand jury subsequently added Michael to the Weeks

indictment. He was charged with obstruction of justice and perjury

enforcement agents from the Florida storage facility and the ground
in Somerville.

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in connection with the removal of the guns from the hide and his

grand jury testimony, and with unlawful possession of firearms.

Michael's Trial

Michael was tried separately from the other indicted

parties. At his trial, which began on April 16, 2002, the

government called St. Croix and Allen to testify that Michael had

helped them remove guns from the hide. The government also

presented evidence that the guns met the statutory requirements for

the firearms charges, and it played for the jury a recording of

Michael's grand jury testimony. In addition, the government was

permitted to ask St. Croix and Weeks about the Bulger/Flemmi group,

its criminal exploits, and Michael's contacts with the group.

Nevertheless, the jury was instructed, on more than one occasion,

that "Michael [was] not charged with complicity in the [crimes]

carried out by the Bulger-Flemmi organization," and it was reminded

that it was to "confine [its] deliberations to the crimes with

which Michael [was] actually charged."5

5
During the jury charge, the district court gave the following
limiting instruction (a comparable instruction was given when St.
Croix testified):
Guilt can never be established by the mere fact of
association. The fact that Stephen [], a notorious
gangster, is the defendant's brother does not prove
anything about [Michael's] possible guilt.
You also heard testimony about the criminal
organization led by Stephen [] and [] Bulger and its many
crimes. This testimony was admitted to the extent that
it was relevant to your understanding of the grand jury
investigation that [Michael] is accused of obstructing,
the origin and the purpose of the cache of firearms that

-6-
 Michael's defense at trial was that he had nothing to do

with the removal of the guns from the hide--he insisted that any

testimony on the part of the government's witnesses to the contrary

was false. The jury ultimately convicted Michael on all counts.

Michael's Sentencing

Michael was sentenced on September 9, 2002. In order to

determine Michael's sentence for perjury and obstruction of

justice, the district court had to identify the most serious

substantive offense related to his unlawful conduct.6 The district

were allegedly hidden [in the structure behind Mrs.
Flemmi's house], and your assessment of the credibility
of certain witnesses who have admitted their
participation in the organization's crimes.
You must, however, remember that Michael [] is not
charged with complicity in the murders, extortions, and
drug dealing carried out by the Bulger-Flemmi
organization. Not only is he not charge[d] in these
crimes, there is no evidence that he was involved in them
in any way. You are, therefore, to confine your
deliberations to the crimes with which Michael [] is
actually charged . . . .
6
Section 2J1.2(a) of the United States Sentencing Guidelines
provides a base offense level of 12 for obstruction of justice.
(The district court used the Guidelines Manuel issued on November
1, 2001, and so do we.) But, "[i]f the offense involved
obstructing the investigation or prosecution of a criminal
offense," section 2J1.2(c) instructs the sentencing court to apply
section "2X3.1 (Accessory After the Fact) in respect to that
criminal offense, if the resulting offense level is greater than"
the calculation under the obstruction Guideline alone. The
Guideline for perjury, section 2J1.3, also has a base offense level
of 12, and a cross-reference to section 2X3.1 "[i]f the offense
involved perjury . . . in respect to a criminal offense." Note,
"the defendant need not have been convicted [of] participating in
the underlying offense" for the cross-reference to apply. E.g.,
United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000). The
accessory after the fact Guideline, section 2X3.1, provides a base

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court, adopting the position taken in the United States Probation

Office's Pre-Sentence Report ("PSR"), decided that the relevant

offense was murder and sentenced Michael accordingly.

Present Appeal

On appeal, Michael argues that the district court erred

in admitting St. Croix and Weeks' testimony about the Bulger/Flemmi

group, its criminal activities, and Michael's interactions with the

group. He insists that: (1) the testimony pertaining to the

Bulger/Flemmi group and its criminal exploits was irrelevant and

unfairly prejudicial and, as such, should have been excluded

pursuant to Federal Rules of Evidence 401, 402, and 403; (2) the

testimony describing his interactions with the group was unfairly

prejudicial evidence of uncharged misconduct that should have been

excluded under Federal Rules of Evidence 403 and 404(b); and (3)

even if the district court did not err in admitting the challenged

evidence for the reasons stated above, "the testimony [describing]

statements made by Stephen [] to Weeks and[] St. Croix [was hearsay

that was] erroneously admitted" under Federal Rule of Evidence

801(d)(2)(E). Furthermore, Michael asserts that the district

offense level of "6 levels lower than the offense level for the
underlying offense, but in no event less than 4, or more than 30."
And, "[w]here there is more than one [potential underlying]
offense, the most serious such offense . . . is to be used." U.S.
Sentencing Guidelines Manual § 1B1.5, cmt. n.3 (2001).
In sum, where, as here, section 2X3.1 applies, the individual
who obstructed justice or committed perjury is sentenced as though
he were an accessory after the fact to the most serious substantive
criminal offense related to his conduct.

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court, in calculating his sentence for perjury and obstruction of

justice, erred in determining that the most serious offense related

to those charges was murder. We address these arguments seriatim.

II. Michael's Evidentiary Challenges

As a general matter, "[w]e review the district court's

decision to admit the disputed evidence for abuse of discretion."

United States v. McGuire, 389 F.3d 225, 228 (1st Cir. 2004); see

also Richards v. Relentless, Inc., 341 F.3d 35, 49 (1st Cir. 2003)

(reviewing relevancy determinations for abuse of discretion);

United States v. Balsam, 203 F.3d 72, 84 (1st Cir. 2000) (reviewing

rulings pursuant to Rules 403 and 404(b) for abuse of discretion).

If, however, there was no objection to the admission of the

evidence at trial, our review is only for plain error.7 See United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We will not

find plain error unless "(1) [] an error occurred (2) which was

clear or obvious and which not only (3) affected [Michael's]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." Id.

A. Evidence of the Bulger/Flemmi Group and its Exploits

We begin by evaluating the admission of the testimony

concerning the Bulger/Flemmi group and its criminal exploits.

Michael argues that because this testimony, which is described in

7
Unless we state otherwise, it should be assumed that Michael
objected to the admission of the challenged evidence below.

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detail below, "was only marginally relevant, if at all," to the

charged offenses and unfairly prejudicial, it should have been

excluded under Rules 401, 402, and 403. Evidence is relevant if it

has "any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence." Fed. R.

Evid. 401. Generally, "[a]ll relevant evidence is admissible,"

while "[e]vidence which is not relevant is not admissible." Fed.

R. Evid. 402. However, even if evidence is relevant, it "may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice."8 Fed. R. Evid. 403. We note at the

outset that "[o]nly rarely--and in extraordinarily compelling

circumstances--will we, from the vista of a cold appellate record,

reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect." United

States v. Sabetta, 373 F.3d 75, 82-83 (1st Cir. 2004) (internal

quotation marks omitted).

Testimony Describing Persons Involved with the Bulger/Flemmi Group

8
Evidence is unfairly prejudicial if it "invites the jury to
render a verdict on an improper emotional basis." United States v.
Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000) (stating that a
reviewing court should be "cautious when [evidence] is [] shocking
or heinous [and, thus,] likely to inflame the jury" (internal
quotation marks omitted)); see also United States v. Currier, 836
F.2d 11, 18 (1st Cir. 1987) ("Unfairly prejudicial evidence . . .
is evidence that triggers the mainsprings of human action in such
a way as to cause a jury to base its decision on something other
than the established proposition in the case." (internal quotation
marks and brackets omitted)).

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 Michael first questions the admission of St. Croix's

testimony concerning individuals involved with the Bulger/Flemmi

group. Specifically, he contests the admission of statements that:

Stephen and Bulger "were partners in a criminal organization" (the

Bulger/Flemmi group)9; George Kaufman and Phil Costa were members

of, and collected money owed to, that organization; and Frank

Salemme "was the head of the New England mafia" and Stephen's ally.

The admission of these statements was not an abuse of

discretion. Michael was charged with obstructing an investigation

into the Bulger/Flemmi group and these statements were relevant

because they provided the jury with useful background information--

they introduced individuals associated with the investigation that

Michael was charged with obstructing. See United States v.

Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997) ("To be relevant,

evidence need only tend to prove the government's case, and

evidence that adds context and dimension to the government's proof

of the charges can have that tendency. Relevant evidence is not

confined to that which directly establishes an element of the

crime."); see also United States v. Daly, 842 F.2d 1380, 1388 (2d

Cir. 1988) ("[T]he trial court may admit evidence that does not

directly establish an element of the offense charged, in order to

provide background for the events alleged in the indictment.").

9
Although Michael did not object to the admission of this
particular statement at trial, we find it unnecessary to engage in
the plain error analysis because we find no error in its admission.

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 Moreover, the testimony was not unfairly prejudicial to

Michael, as St. Croix never suggested that Michael was a member of

the Bulger/Flemmi group. And, any prejudice that it may have

caused was mitigated by the district court's limiting instructions.

Testimony About an "X Fund"

Michael next objects to the admission of Weeks' testimony

that the Bulger/Flemmi group had an "X fund"--a fund comprised of

"money that was put aside every time we made a score . . . for

expenses that would come up, . . . you know . . . payoffs." The

testimony was relevant because it indicated that the members of the

Bulger/Flemmi group were intent on concealing the group's criminal

activities, and thus, it tended to support the government's theory

that Stephen recruited St. Croix (who, in turn, recruited Michael)

to remove guns from the hide. And, any claim that the testimony

was unfairly prejudicial to Michael is weak because Weeks never

indicated that Michael had anything to do with the "X fund." There

was no error in the admission of this testimony.

Testimony About the Use of Coded Communications

Michael also asserts that the district court erred in

admitting (1) St. Croix's testimony that, when possible, St. Croix,

Weeks, Allen, and Michael avoided using intercom phones when

communicating with Stephen in prison (they would, for example, hold

up signs and gesture with their hands), and (2) Weeks' testimony

that members of the Bulger/Flemmi group used nicknames when

-12-
referring to law enforcement agents in front of Michael and that

Michael understood the coded references. This testimony was highly

relevant because it indicated that Michael was a trusted ally of

the Bulger/Flemmi group (such that it would not be unreasonable to

think that St. Croix would have enlisted his help in moving the

guns) and that he was aware of, and willing to cover up, the

group's activities (which helped establish his knowledge of the

group's--and his brother's--unlawful behavior, as well as his

intent to commit the crimes with which he was charged). We do not

think that the district court abused its discretion in admitting

the testimony based on its high probative value. We also note that

any danger of unfair prejudice was considerably lessened by the

limiting instructions the district court gave.

Testimony About the Bulger/Flemmi Group's Criminal Activities

In addition, Michael attacks the admission of Weeks'

testimony concerning: (1) the three people--Barrett, McIntyre, and

Hussey--who were murdered in Weeks' presence and buried in

Dorchester; (2) two others, Brian Halloran ("Halloran") and Michael

Donahue ("Donahue"), who were also murdered in Weeks' presence; and

(3) the Bulger/Flemmi group's unlawful acquisition of a liquor

store in which Weeks was directly involved. With regard to the

murder victims, Weeks gave a brief account of the circumstances

-13-
surrounding each murder.10 In terms of the liquor store, Weeks

stated that he intimidated the owners of the store (by brandishing

a gun) so they would sell the store to the Bulger/Flemmi group.

The government defends the admission of this testimony by

pointing out that the testimony (which brought to the fore Weeks'

extensive criminal history) was important to Weeks' credibility and

arguing that such impeachment evidence may be elicited on direct

examination.11 There is support for the government's position. See

United States v. Frappier, 807 F.2d 257, 259 (1st Cir. 1986)

("[T]he prosecution, having called a witness, may then 'take the

wind out of the sails' of the defense by questions eliciting

possible bases for impeachment."); see also Fed. R. Evid. 607 ("The

credibility of a witness may be attacked by any party, including

the party calling the witness."). Michael even concedes that

informing a jury of the nature of a witness' prior criminal conduct

is "fair game." Nevertheless, he contests the admission of Weeks'

10
Weeks testified that: Bulger and Stephen strangled Hussey
(he did not explain why); Bulger shot Barrett because he had a
grudge against him; and either Bulger or Stephen shot McIntyre
after learning that he had informed law enforcement agents of the
Bulger/Flemmi group's plans to smuggle weapons to the Irish
Republican Army in Ireland. Weeks then related a conversation that
he had with Michael soon after Hussey's disappearance in which
"Mi[chael] indicated . . . that [Hussey's disappearance] was no
great loss." Finally, Weeks explained that Halloran was shot by
Bulger and a masked accomplice because he was an informant and that
Donahue was an unintended victim of the Halloran shooting.
11
We note and find it significant that, prior to trial, Michael
could have agreed to refrain from eliciting the evidence in
question on cross-examination, but that he opted not to do so.

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testimony on the ground that the prejudicial effect of permitting

the government to delve into the particulars of the Bulger/Flemmi

group's crimes substantially outweighed the testimony's probative

value. We disagree. Although there may be circumstances where a

criminal defendant would be wronged if the prosecution were allowed

to delve too deeply into the particulars of its witness' criminal

history on direct, we do not think that this is such a case. Here,

all but one of the statements had significant probative value.12

And, there was little danger of unfair prejudice: there was no

suggestion that Michael was involved in the crimes that Weeks

described and the jury was instructed to that effect. We cannot

say that the district court abused its discretion in admitting

Weeks' testimony. See United States v. Dworken, 855 F.2d 12, 28

(1st Cir. 1988) ("It is perhaps true that the government could have

[made due] without so much detail concerning the prior [events],

12
The value of the conversation that Weeks had with Michael
after Hussey's disappearance where "Mi[chael] indicated . . . that
[Hussey's disappearance] was no great loss" is not readily apparent
to us. Nonetheless, as we will later show, the error in the
conversation's admission was harmless. That conversation aside, we
think the rest of Weeks' testimony was probative not only because
it elicited impeachment evidence, but also because it established
a motive for Michael to help remove the guns from the hide and lie
to the grand jury (he did not want his brother's involvement in
crimes committed by the Bulger/Flemmi group, such as those Weeks
described, to be exposed), and because it provided useful
background by showing the purpose of the arsenal and describing
crimes that were the subject of the investigation that Michael was
charged with attempting to impede, see Daly, 842 F.2d at 1388.

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but this is essentially a Rule 403 balancing decision left to the

broad discretion of the trial judge." (emphasis in original)).

Testimony that Weeks Sought a Gun from Stephen

The next challenge concerns Weeks' testimony that he

visited Stephen in prison and asked Stephen for permission to take

one of the guns from the hide so he could "act" on threats that had

been made against him. According to Weeks, Stephen agreed to the

request and stated that Stephen, Weeks, and Bulger were "the only

ones [who] knew [about the hide]." On appeal, Michael disputes

only the admission of that portion of the testimony where Weeks

stated that he sought a gun to "act" on threats made against him.

The challenged statement was relevant because it prompted, and

provided context to, the unchallenged, and clearly relevant,

testimony concerning the hide.13 See Sabetta, 373 F.3d at 83

(recognizing that testimony is relevant if it helps "explain[] the

chain of events"). Although the challenged statement's probative

value may not have been particularly high, we do not see how its

admission caused Michael unfair prejudice--there was no indication

that Michael knew of the conversation between Stephen and Weeks or

Weeks' plan to "act" on the threats made against him.

Consequently, there was no error in the testimony's admission.

13
The fact that Stephen told Weeks that he could take a gun
from the hide and that the only other person who knew about the
hide was Bulger helped establish the government's theory that the
hide was used to store a cache of guns and that the guns were in
the hide when St. Croix claimed to have moved them.

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Testimony Regarding a Bombing in which Stephen was Implicated

Michael also objects to the admission of St. Croix's

testimony that he first "obtained personal knowledge [of Stephen's]

criminal activities . . . in 1974" when he learned that Stephen had

been "implicated in [a] bombing." This testimony provided relevant

background to the development of the illegal relationship between

St. Croix and his father, a relationship that culminated in the

concealment conspiracy in question. See United States v. Santana,

342 F.3d 60, 67 (1st Cir. 2003) (noting that evidence is relevant

in a conspiracy case if it explains the background of the illegal

relationship). And, the naked reference to a bombing in which

Stephen was allegedly implicated was not unfairly prejudicial to

Michael, as there was no allegation that Michael was involved in,

or knew of, the bombing. Moreover, any potential prejudice was

counteracted by the limiting instructions. The district court did

not abuse its discretion in admitting this testimony.

Testimony Concerning St. Croix's Relationship with Stephen

Michael further contends that it was an abuse of

discretion to allow St. Croix to testify that he and Stephen agreed

that if St. Croix chose a life of crime, Stephen "would show [him]

how to do things and [St. Croix would] tell [Stephen] everything

[he] was involved in . . . to make sure [that he] didn't hurt any

of [Stephen's] friends." We disagree. Immediately after St. Croix

gave the challenged testimony, he told the jury that he took his

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father up on his offer and "report[ed] to him on a regular basis."

Therefore, the testimony was relevant as it established the

background and formation of the illegal relationship between St.

Croix and Stephen, and it explained why Stephen would feel

comfortable telling St. Croix about the hide and asking him to move

the guns. See id. (noting that, in a conspiracy case, evidence is

relevant if it explains "the background [and] formation . . . of

the illegal relationship and . . . help[s] the jury understand the

basis for the co-conspirators' relationship of mutual trust"

(internal quotation marks omitted)). In addition, it is not clear

how the testimony could have caused Michael unfair prejudice

because there was no suggestion that he was in any way involved in

St. Croix's life of crime.

Michael also finds fault in the admission of St. Croix's

statements concerning Stephen's reaction after he learned that St.

Croix's brother, Stephen's other son, refused to visit him because

he was "angry" at him. According to St. Croix, Stephen said, "What

the hell has he got to worry about? All he had to do was 18

months. I may spend the rest of my life in prison." Michael,

however, used the testimony pertaining to the length of Stephen's

prison term to his advantage when he later relied on the likelihood

that Stephen would spend the rest of his life in prison in

presenting his defense: In his closing argument, Michael argued

that St. Croix was angry at his father for killing Hussey and that,

-18-
because he could not take direct revenge against his father, who

would likely spend "the rest of his natural life" in prison, he

falsely testified against Michael as an indirect way to punish

Stephen. Under the circumstances, Michael can hardly complain of

prejudicial error. See, e.g., United States v. Carrillo-Figueroa,

34 F.3d 33, 39 (1st Cir. 1994).

In any event, there was no error in the admission of this

testimony. The testimony was relevant because it helped establish

that St. Croix was upset with his father (St. Croix testified that

his father's "cavalier" reaction to his brother's anger "really []

upset" him),14 and thus, it supported Michael's defense that St.

Croix falsely testified against him as a way to punish Stephen.

See Frappier, 807 F.2d at 259 (stating that the prosecution may

elicit possible bases for impeachment on direct). Moreover, we do

not see how the testimony, which in no way reflected on Michael,

could have caused Michael unfair prejudice.

Testimony that Stephen Confessed to Murdering Hussey

Michael next disputes the admission of St. Croix's

testimony that, on January 20, 2000, Stephen admitted to killing

Hussey in front of St. Croix and Michael. He did not object to the

admission of this testimony below, and we do not find any error,

much less plain error, in its admission. The testimony was highly

14
The fact that St. Croix's brother was jailed for eighteen
months was relevant because it explained the reason for the
brother's anger towards Stephen. See Daly, 842 F.2d at 1388.

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relevant because Michael was charged with, among other things,

perjuring himself before the grand jury, and on June 7, 2000,

subsequent to the conversation in question, he told the grand jury

that he had no idea whether Hussey was alive.15 Although the

testimony was certainly damaging to Michael, the district court did

not err in finding that the danger of unfair prejudice did not

outweigh the testimony's probative value.

Testimony About Defense Funds

This brings us to the final piece of testimony pertinent

to the Bulger/Flemmi group and its criminal exploits that Michael

challenges on appeal: St. Croix's testimony about the existence of

defense funds for members of the group. Despite Michael's

insistence to the contrary, the district court did not err in

allowing St. Croix to testify that a portion of the proceeds from

the illegal activities in which he was involved were used to pay

the legal expenses of Stephen and some of his associates. The

testimony was relevant for impeachment purposes (its admission

enabled the government to bring out on direct examination the fact

that St. Croix was engaged in illegal activities), see Frappier,

807 F.2d at 259, and because it provided insight into the

15
The testimony was also relevant to show that Michael knew of
Stephen's past crimes, and thus, it helped establish that Michael
had a motive to help move the guns and lie to the grand jury. See
supra note 12. In addition, the testimony demonstrated that
Stephen trusted Michael and St. Croix to the extent that it would
be reasonable to believe that he asked St. Croix to move the guns
and that St. Croix recruited Michael to assist in the endeavor.

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relationship between St. Croix and Stephen, see Santana, 342 F.3d

at 67. The district court did not abuse its discretion in finding

that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice, because the testimony

did not implicate Michael in St. Croix's illegal activities.

B. Evidence of Michael's Interactions with the Bulger/Flemmi
Group

We now consider whether the district court erred in

admitting testimony pertaining to Michael's interactions with the

Bulger/Flemmi group. Michael argues that this testimony

constituted unduly prejudicial evidence of uncharged misconduct

that should have been excluded pursuant to Rules 403 and 404(b).

Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order

to show action in conformity therewith." Nevertheless,

other bad acts evidence is admissible so long
as the following, two-part test is satisfied:
First, in accordance with Rule 404(b), the
evidence must have special relevance to an
issue in the case such as [motive,] intent or
knowledge, and must not include bad character
or propensity as a necessary link in the
inferential chain. . . . Second, consistent
with Rule 403, the probative value of the
evidence must not be substantially outweighed
by the danger of unfair prejudice.

United States v. McGuire, 389 F.3d 225, 229 (1st Cir. 2004)

(internal quotation marks and citations omitted). We identify, and

evaluate Michael's objections to, the relevant statements below.

Testimony Concerning Michael's Interactions with Weeks

-21-
 Weeks was permitted to tell the jury that he engaged in

loan sharking in Michael's presence without trepidation because

Michael was "Ste[phen's] brother" and Weeks "trusted him." Weeks

also testified that, after his gun license was revoked, Michael saw

him with guns and, on two occasions, loaned him a gun. Weeks

stated that he was not "afraid [that Michael] was going to arrest

[him] for [carrying a gun without a license]." Michael objects to

the admission of this testimony for the first time on appeal, and

as a result, our review is for plain error.

We find no error, and therefore, no plain error, in the

admission of this testimony. The government tried Michael on the

theory that he lied and obstructed justice to shield members of the

Bulger/Flemmi group from prosecution. Thus, the testimony had

special relevance in that it demonstrated Michael's knowledge that

members of the group engaged in unlawful activities and evidenced

his intent16 to protect those individuals from facing the legal

consequences of their actions.17 Moreover, we do not think that the

16
Michael's argument that the district court should not have
admitted Rule 404(b) evidence to prove intent because his defense
was a general denial of the crimes with which he was charged is
unavailing. We have held that "[Rule 404(b)] evidence may be
admitted when it is probative of an issue other than character even
when the defense is a general denial of the charges." United
States v. Oppon, 863 F.2d 141, 146 (1st Cir. 1988); but see United
States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) ("When a
defendant unequivocally relies on such a defense, evidence of other
acts is not admissible for the purpose of proving intent.").
17
The testimony also helped explain the trust that existed
between Michael and members of the Bulger/Flemmi group. See

-22-
district court abused its discretion in balancing the probative

value of this testimony against the danger of unfair prejudice.

Testimony that Michael Handled Stephen's Criminal Affairs

The next challenge involves testimony that Michael helped

handle Stephen's affairs while Stephen was in prison. St. Croix

testified that "after Phil Costa died and [] Weeks was indicted,

[he and Michael were the only people] left to handle [Stephen's]

affairs on the outside." St. Croix also testified that, after

Stephen's arrest, Michael "was picking up money from various

bookmakers . . . owed to [Stephen]."18 In addition, Weeks testified

that Michael "participate[d] in th[e] process of picking up

[proceeds from an extortionate] sale."19

Michael insists that the district court should have

excluded the above statements. We disagree. The statements were

specially relevant not only to show that Michael had knowledge of,

Santana, 342 F.3d at 67.
18
Michael did not object to the admission of this statement at
trial, so our review of its admission is for plain error. However,
because we do not find any error in its admission, we need not
engage in the plain error analysis.
19
Michael also objects to Weeks' statement that Weeks
"collected some of the proceeds" for Stephen from the extortionate
sale, a statement Weeks made immediately before testifying that
Michael also picked up money in connection with the sale. We do
not think that the district court erred in admitting this
statement. It was relevant because it put into context Weeks'
comment about Michael's involvement in the extortionate sale, and
it is not clear how the statement (which itself did not implicate
Michael in the sale) caused Michael unfair prejudice. See Sabetta,
373 F.3d at 83.

-23-
and occasionally assisted in, Stephen's illegal activities (which

helped establish that he had a motive to engage in the crimes with

which he was charged--to conceal from the grand jury his and his

brother's wrongdoing, as well as the intent to do so), but also to

demonstrate that while Stephen was in prison, St. Croix and Michael

were among the few people he trusted to help him with his illegal

activities. This explains why Stephen would feel comfortable

telling St. Croix about the hide and asking him to move the guns

(and why St. Croix would then feel comfortable enlisting Michael to

help). See Santana, 342 F.3d at 67 (allowing the admission of Rule

404(b) evidence to explain the trust that existed among the

coconspirators). Although the testimony may have caused the jury

to view Michael in a negative light, we do not think that the

district court erred in admitting the evidence after balancing its

significant probative value against the danger of unfair prejudice.

Testimony that Michael Informed Weeks of Stephen's Arrest

Michael also contests the admission of Weeks' statement

that Michael told him that Stephen had been arrested soon after the

arrest. Michael's claim is unavailing. The statement had special

relevance that could reasonably have been found to outweigh any

danger of unfair prejudice, as it helped establish Michael's

knowledge of Stephen's legal troubles and wrongdoing. Moreover,

the statement was independently admissible as a necessary component

of Weeks' ensuing testimony, the admission of which Michael does

-24-
not contest. Weeks testified that he responded to the news about

Stephen's arrest by telling Michael, "I told [Stephen] to take

off," to which Michael replied, "I know, I know." This exchange is

probative of Michael's knowledge of Stephen's criminal wrongdoing

and intent to obstruct justice (Michael acknowledged that he was

aware that Stephen had been told to "take off" to avoid capture).

C. Coconspirator Statements

Having disposed of Michael's claims involving the

testimony of his interactions with the Bulger/Flemmi group, we turn

our attention to his final evidentiary challenge, which is premised

on his assertion that the district court erred in admitting all of

the above testimony that describes statements Stephen made to Weeks

and St. Croix because that testimony related inadmissible hearsay.20

Michael claims that, despite the district court's apparent finding

to the contrary, the statements did not satisfy the requirements of

Rule 801(d)(2)(E), which provides that a statement is not hearsay

if it is offered against a party and is "a statement by a

coconspirator of a party during the course and in furtherance of

the conspiracy." As an initial matter, there are only two

statements made by Stephen that would even arguably constitute

20
Michael does not challenge on hearsay grounds the admission
of statements made by anyone other than Stephen. Hearsay is "an
oral or written assertion . . . , other than one made by the
declarant while testifying at the trial . . . , offered in evidence
to prove the truth of the matter asserted." Fed. R. Evid. 801.
"Hearsay evidence ordinarily is inadmissible in criminal trials."
United States v. Piper, 298 F.3d 47, 51 (1st Cir. 2002).

-25-
hearsay but for the application of Rule 801(d)(2)(E): (1) his

statement to Weeks that only he, Weeks, and Bulger knew of the

hide, and (2) his statement to Michael and St. Croix that he killed

Hussey.21

To invoke Rule 801(d)(2)(E), the government "bears the

burden of establishing, by a preponderance of the evidence, that a

conspiracy embracing both the declarant and the defendant existed,

and that the declarant uttered the statement[s] during and in

furtherance of the conspiracy." United States v. Bradshaw, 281

F.3d 278, 283 (1st Cir. 2002) (internal quotation marks omitted).

A defendant who wishes to preserve for appeal a challenge to the

admission of statements under Rule 801(d)(2)(E) must request, at

the close of all the evidence, that the district court make a

determination as to whether the government carried its burden. See

21
St. Croix did not recount hearsay when he testified about the
composition of the Bulger/Flemmi group because he testified from
his own experiences (he did not report oral or written assertions).
In addition, St. Croix did not relate hearsay when he testified
that Stephen told him that if he chose a life of crime, Stephen
"would show [him] how to do things." Stephen's statement was not
admitted to prove the truth of the matter asserted (that Stephen
would or did tutor St. Croix in crime); rather, it was an
instruction admitted to provide background for the development of
St. Croix and Stephen's criminal relationship. See United States
v. Murphy, 193 F.3d 1, 5 (1st Cir. 1999) ("So long as out-of-court
statements are not offered for their truth, they are not hearsay .
. . ."). Similarly, the statements discussing the prison terms of
St. Croix's brother and Stephen are not hearsay because they were
not offered for the truth of the matters asserted (that St. Croix's
brother spent eighteen months in prison and that Stephen would
likely spend the rest of his life in prison) but, instead, for
their effect on St. Croix. See United States v. DeVincent, 632
F.2d 147, 151 (1st Cir. 1980).

-26-
United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992). "[A]

defendant's failure to object to the omission of such an express

trial-end determination bars him from raising the point on appeal

in the absence of plain error." Id. (internal quotation marks

omitted). Because the district court did not make, and Michael did

not ask for, "an express trial-end determination," our review is

for plain error. Id.

We do not think that Michael has demonstrated that the

admission of the challenged statements was error (and, ergo, he has

not shown plain error). The government certainly established that

Michael was involved in a conspiracy with Stephen, Weeks, St.

Croix, and Allen to conceal the illegal activities of the

Bulger/Flemmi group.22 Nevertheless, Michael asserts that the

statements should have been excluded because there was no evidence

22
For example, St. Croix testified that Michael helped St.
Croix and Allen move the group's guns from the hide after learning
that Stephen had requested their removal because he feared that a
search of the hide was imminent. And, after providing that
assistance, Michael professed his ignorance of the hide before a
grand jury investigating the Bulger/Flemmi group. There was also
testimony indicating that Stephen, Weeks, and St. Croix trusted
Michael to remain silent about the group's exploits: Weeks
testified that he openly conducted illegal activities on behalf of
the Bulger/Flemmi group in front of Michael; and Weeks and St.
Croix testified that Michael helped collect illegal debts for
Stephen while Stephen was in prison.
Michael argues that because the district court stated that he
was not involved "in the murders, extortions, and drug dealing
carried out by the Bulger-Flemmi organization," he could not have
been a coconspirator. However, the fact that Michael was not
involved in the organization's "murders, extortions, and drug
dealing" does not mean that he was not a participant in a
conspiracy to conceal its criminal acts.

-27-
that he was a coconspirator "at the time" they were made. But,

whether Michael was a coconspirator at the time the statements were

made is irrelevant--we have held that an individual who joins a

conspiracy "at a later date, . . . effectively adopt[s]

coconspirator declarations previously made." United States v.

Saccoccia, 58 F.3d 754, 778 (1st Cir. 1995).

In addition, Michael claims that the statements were not

made in furtherance of the conspiracy, but that claim also fails.

"[A] coconspirator's statement is considered to be in furtherance

of the conspiracy as long as it tends to promote one or more of the

objects of the conspiracy." United States v. Piper, 298 F.3d 47,

54 (1st Cir. 2002). Stephen's statement to Weeks that Stephen,

Weeks, and Bulger were the only people who knew of the hide

furthered the conspiracy because it informed a coconspirator

(Weeks) of those with knowledge of the hide, which was important to

ensure that the knowledge remained contained. Likewise, Stephen's

statement to Michael and St. Croix (in response to a direct

question from St. Croix) that he killed Hussey furthered the

conspiracy because it fostered a relationship of trust among the

three, and it kept Michael and St. Croix "abreast of current

developments and problems facing the group," United States v.

Jefferson, 215 F.3d 820, 824 (8th Cir. 2000) (internal quotation

marks omitted).

-28-
D. Harmless Error

We conclude our evidentiary discussion by noting that the

one error we have identified, see supra note 12, was harmless and,

as such, does not merit reversal of the jury verdict. It is

settled that "[a] non-constitutional evidentiary error is harmless

(and, therefore, does not require a new trial) so long as it is

highly probable that the error did not influence the verdict."

Piper, 298 F.3d at 56. Here, that standard is met. This is

because the jury was presented with ample direct evidence that

Michael obstructed justice, committed perjury, and possessed guns.

Moreover, the fact that the jury was instructed that it was to

"confine [its] deliberations to the crimes with which Michael [was]

actually charged" and that "[g]uilt can never be established by the

mere fact of association" makes it even more unlikely that the

error affected the verdict.23

III. Michael's Sentencing Challenge

We now focus on Michael's sentencing challenge. Michael

argues that the district court erred in using murder, as opposed to

gun possession, as the most serious offense underlying his

23
Michael asserts that the cumulative effect of the admission
of the challenged statements requires that he receive a new trial.
But, "[b]ecause we have found that none of [Michael's] individual
complaints resulted in substantial prejudice and that most are
completely without merit, we reject the final contention that his
conviction was tainted by cumulative error." United States v.
DeMasi, 40 F.3d 1306, 1322 (1st Cir. 1994).

-29-
obstruction of justice and perjury charges.24 The government

defends the use of murder and, in the alternative, claims that

using the most serious gun possession charge would have yielded the

same sentence. "We review the sentencing court's application of

the guidelines de novo and . . . the factual findings underlying

that application for clear error." United States v. Reyes-

Echevarria, 345 F.3d 1, 6 (1st Cir. 2003).

We find no error in the use of murder as the underlying

offense. When Michael testified before the grand jury about his

knowledge of the Bulger/Flemmi group's reserve arsenal and Hussey's

whereabouts, the grand jury was investigating, and he had reason to

know it was investigating, whether "members and associates of

[that] Group [were involved] in violent racketeering activities,

such as . . . murder." And, Michael was later charged with, and

convicted of, perjury and obstruction of justice in connection with

that investigation. Therefore, the district court was justified in

using murder, and not gun possession, as the underlying offense.25

See U.S. Sentencing Guidelines Manual § 1B1.5, cmt. n.3 (2001)

24
We note that Michael has made no arguments in the district
court or in this court questioning the constitutionality of the
Guidelines or their application to his sentence. Therefore, we
need not consider the effect of United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005), with respect to Michael's sentence.
25
Because we find that the district court did not err in using
murder as the underlying offense, we need not, and do not, address
the government's alternative argument.

-30-
("Where there is more than one [potential underlying] offense, the

most serious such offense . . . is to be used.").

Michael, nevertheless, insists that his sentence should

be vacated because the district court, in determining the

underlying offense, looked to the 1995 indictment, see supra note

3, an indictment in which he was not charged, rather than to the

Weeks indictment. Michael's argument fails because the district

court in fact looked to both indictments. At sentencing, the

government asserted that Michael's "actions clearly were to benefit

the [Bulger/Flemmi group], whether it was as set forth in the

[1995] indictment . . . , or . . . in the [Weeks] indictment."

And, the district court subsequently stated that it was "adopt[ing]

the government's position."26 Moreover, even if the district court

had looked only to the 1995 indictment, Michael's argument would

still fail. The 1995 indictment, like the Weeks indictment,

charged Stephen and other members of the Bulger/Flemmi group with

26
Although the district court later issued a written document
in which it said that, in determining Michael's sentence, it had
adopted the reasoning of the PSR, which mentions only the 1995
indictment, the district court's oral statement at the sentencing
hearing controls. See United States v. Muniz, 49 F.3d 36, 42 n.5
(1st Cir. 1995) (recognizing that "[w]here . . . the district
court's oral expression of its sentencing rationale varies
materially from its subsequent written expression of that
rationale, appellate courts have tended to honor the former at the
expense of the latter"); see also United States v. Melendez-
Santana, 353 F.3d 93, 100 (1st Cir. 2003) ("[W]e conclude that
where the conditions of supervised release announced at the
sentencing hearing conflict in a material way with the conditions
of supervised release in the written sentencing order, the oral
conditions control.").

-31-
engaging in violent racketeering acts, including murder. Because

the litigation involving the crimes charged in the 1995 indictment

was ongoing when Michael testified before the grand jury, reference

to the 1995 indictment would have been appropriate, as Michael's

testimony was relevant to that prosecution. See U.S. Sentencing

Guidelines Manual § 2J1.2(c) (2001) (sentencing court is to apply

the accessory after the fact Guideline "[i]f the offense involved

obstructing the investigation or prosecution of a criminal offense"

(emphasis added)).

Michael also asserts that because he did not know "the

full nature and scope of his brother's criminal activities" or

whether "any of the guns removed from the hid[e] had been used in

a murder or other violent offense," the district court could not

use murder as the underlying offense. However, such knowledge was

not a prerequisite to the use of murder as the relevant offense.

Cf. United States v. McQueen, 86 F.3d 180, 184 (11th Cir. 1996)

("[Defendant's] lack of knowledge of the specific offenses under

investigation is irrelevant."). All that was required was that

Michael endeavored to "obstruct[] the investigation or prosecution

of a [murder],"27 U.S. Sentencing Guidelines Manual § 2J1.2(c)

27
For an individual to qualify for the section 2J1.2(c)
enhancement, it is not necessary that he succeed in obstructing
justice--he may simply endeavor to do so. United States v. Aragon,
983 F.2d 1306, 1315 (4th Cir. 1993) ("[E]ndeavoring to obstruct
justice . . . is to be included within § 2J1.2." (citation
omitted)).

-32-
(2001), and that he committed "perjury . . . in respect to a

[murder],"28 id. at § 2J1.3(c). When Michael told the grand jury

that he did not know Whether Hussey was alive, he knew, or at least

had reason to know, that it was investigating whether she had been

murdered by members of the Bulger/Flemmi group,29 and the trial jury

found that he attempted to impede that investigation. That is

sufficient to justify the use of murder as the underlying offense.

As a final matter, Michael challenges the use of murder

on the ground that there was no evidence connecting the guns from

the hide to any specific murder. But, whether the guns were

connected to a specific murder is irrelevant. Michael had reason

to know that the grand jury was investigating a murder, and the

trial jury found that he sought to hamper that investigation.

Nothing more was required for murder to qualify as the underlying

offense.

Affirmed.

28
"Perjury is in respect to a criminal offense where the
defendant knew or had reason to know, at the time of his perjury,
that his testimony concerned such a criminal offense." United
States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999) (internal
quotation marks omitted); see also United States v. Suleiman, 208
F.3d 32, 39 (2d Cir. 2000) ("[A]s long as the witness has been
alerted to the fact that the grand jury is investigating a criminal
offense, false answers to material questions will almost always
merit enhanced punishment.").
29
It was only a few months before that Michael witnessed
Stephen confess to her murder.

-33-