UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-2273
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID S. McKEEVE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
Daniel L. Sharp, with whom Elaine Whitfield Sharp and
Whitfield, Sharp & Sharp were on brief, for appellant.
Despena Fillios Billings, Assistant United States Attorney,
with whom Donald K. Stern, United States Attorney, was on brief,
for appellee.
December 5, 1997
SELYA, Circuit Judge. Defendant-appellant David S.
SELYA, Circuit Judge.
McKeeve assembles a litany of alleged errors in protest of his
conviction and sentence. His flagship claim requires us to
investigate the circumstances under which the Confrontation
Clause allows a prosecution witness to testify by foreign
deposition over the defendant's objection. After carefully
considering this issue (a matter of first impression in this
circuit) and assaying the appellant's other points, we affirm.
I. BACKGROUND
I. BACKGROUND
Mindful of the appellant's challenge to the sufficiency
of the evidence, we limn the facts in the light most flattering
to the jury's verdict. See United States v. Staula, 80 F.3d 596,
599 (1st Cir.), cert. denied, 117 S. Ct. 156 (1996).
The appellant and his business partner, Shelagh McNeil,
both citizens of the United Kingdom, operated McNeil
International, Ltd. (MIL), a company organized under the laws of
Scotland. Through it, the pair brokered various export
transactions. In 1994, Peter Sullivan, the owner of Afromed (a
Maltese firm), approached the appellant about acquiring a large
quantity of computer equipment for the Libyan government.
McKeeve agreed to handle the transaction and began to investigate
its logistical aspects.
McKeeve contacted the United Kingdom's Department of
Trade and Industry (DTI) to ascertain whether British authorities
would require him to obtain an export license to ship computer
equipment from the United Kingdom to Libya. DTI advised him that
2
he probably needed such a license, and at some point, a DTI
official also informed him that most computer equipment shipped
to Libya wound up in munitions factories. Hot on the heels of
this contact, Eric Lane, an investigator for British Customs,
paid the appellant a visit. Lane stated that U.S. restrictions
on trade with Libya were more stringent than those of the United
Kingdom, and advised McKeeve that he should confer with U.S.
Customs if he contemplated exporting computer equipment from the
United States.
During the fall of 1995 the appellant designated a
Massachusetts firm, New England Computer Exchange (NEXL), as the
vendor of choice to supply the $300,000 worth of computer
equipment needed to fill Afromed's order. When NEXL's
representatives (Cliff Rucker and Deepak Jain) learned that the
appellant wanted to transship the equipment through Cyprus a
notorious clearinghouse for goods destined for embargoed
countries they expressed concern about the ultimate resting
place of the computer equipment. The appellant prevaricated and
told them that the goods were bound for Ethiopia.
McKeeve and McNeil proceeded to instruct their
stateside shipping agent, Peabody and Lane (P&L), to arrange
shipment only as far as Cyprus. Simultaneously, they directed a
British shipping agent, Alex Redpath, to arrange freight
forwarding to Libya and, when Redpath warned that the U.S.
trading embargo posed potential difficulties, the appellant
merely reiterated the instruction.
3
On October 12, 1995, the appellant oversaw the packing
of the computer equipment at NEXL's warehouse in Reading,
Massachusetts. A trucker delivered the goods, in a shipping
container, to port in Charlestown, Massachusetts. Acting on a
tip, the U.S. Customs Service ordered the container held at port.
Because this delay threatened to undercut the letter of credit
that Afromed had produced to pay for the goods, the appellant
flew to Malta and met with Sullivan.
At about the same time, the appellant instructed P&L to
discharge the computer equipment in Antwerp, Belgium (a port
through which it already was scheduled to pass en route to
Cyprus). When a P&L agent informed McNeil about this change,
McNeil advised her to maintain Cyprus as the port of final
destination. The appellant subsequently confirmed McNeil's
instruction.
Despite these machinations, the computer equipment
stayed put. Although it originally was due to depart Charlestown
on October 18, it remained on customs hold a full week later. On
October 25, McNeil contacted NEXL's chief executive and stated
that if he (Rucker) did not sign the Shipper's Export Declaration
(SED), a U.S. Customs export document that lists, among other
things, the ultimate destination of the goods, no payment would
be forthcoming. McNeil transmitted an unsigned SED to Rucker
that listed "Cyprus, Greece" as the port of unloading and Greece
as the country of ultimate destination. Rucker called McNeil to
report the apparent discrepancy and McNeil instructed him to
4
delete Greece and insert Ethiopia as the country of ultimate
destination. Rucker made the requested changes, signed the SED,
and transmitted a facsimile to McNeil. Notwithstanding the newly
executed SED, the customs hold endured.
On October 31, the U.S. Customs Service became
convinced that the appellant sought surreptitiously to export
goods to Libya. A customs agent, posing as a seaport supervisor,
convinced the appellant to return to Boston and address a
paperwork snafu that ostensibly prevented vacation of the customs
hold. During a meeting with undercover customs agents, captured
on videotape, the appellant vouchsafed that the computer
equipment was destined for Ethiopia and signed a false SED.
Shortly thereafter, the authorities arrested him and seized the
computer equipment.
A federal grand jury indicted the appellant on charges
that he knowingly violated the International Emergency and
Economic Powers Act (IEEPA), 50 U.S.C. 1701-1706 (1994), and
its associated Executive Orders and regulations, Exec. Order No.
12,924, 3 C.F.R. 917 (1994) & Exec. Order No. 12,543, 3 C.F.R.
181 (1986), both reprinted in 50 U.S.C. 1701; 31 C.F.R.
550.202 (1997); 15 C.F.R. 774.1, 785.7(a), 787.3(a), 787.6
(1997); conspired to violate IEEPA, 18 U.S.C. 371 (1994); and
made false statements to the U.S. Customs Service, 18 U.S.C.
1001 (1994). The grand jury also indicted McKeeve's and McNeil's
corporation, MIL, on several related counts, but did not charge
it with participating in the conspiracy. The bill named McNeil
5
as an unindicted coconspirator, but neither she nor Sullivan was
named as a defendant (presumably because they were beyond the
court's jurisdiction).
At trial, the appellant admitted that Libya always had
been the intended destination for the computer equipment.
Nevertheless, he professed that he only belatedly became aware
that his actions might violate U.S. law and that, when he learned
of the problem, he tried to "slow down" the transaction by
discharging the equipment in Antwerp for eventual sale in the
United Kingdom. He attempted to explain away his false claim
that Ethiopia was the country of ultimate destination as a
standard broker's business practice designed to mask his
customer's identity.
The jury weighed the evidence, concluded that the
appellant knew all along that U.S. law prohibited the
transaction, and convicted him on all counts. The jury also
found MIL guilty as charged. The district court sentenced both
defendants, but only McKeeve perfected an appeal.
II. THE FOREIGN DEPOSITION
II. THE FOREIGN DEPOSITION
The appellant objects in this court, as he did below,
to admission at trial of the deposition testimony of the British
shipping agent, Alex Redpath. His cardinal contention is that
the admission of this evidence abrogated his rights under the
Confrontation Clause. We exercise plenary review over this claim
of constitutional error. See United States v. Stokes, 124 F.3d
39, 42 (1st Cir. 1997).
6
A. Setting the Stage.
A. Setting the Stage
The parties who agree on little else share the view
that Redpath was a key witness. Initially, the prosecution
gained Redpath's assurances that he would travel to the United
States and testify at the trial. As the day of reckoning
approached, Redpath experienced a change of heart. Because the
district court lacked subpoena power over Redpath (who lived and
worked in Great Britain), the government moved for leave to
depose him abroad. The motion invoked a procedural rule that
provides in pertinent part:
Whenever due to exceptional circumstances of
the case it is in the interest of justice
that the testimony of a prospective witness
of a party be taken and preserved for use at
trial, the court may upon motion of such
party and notice to the parties order that
testimony of such witness be taken by
deposition . . . .
Fed. R. Crim. P. 15(a).
The government proposed to mitigate any Confrontation
Clause issues by transporting the appellant and his counsel to
the site of the deposition and videotaping the proceedings. This
proposal proved problematic for two reasons. First, the U.S.
Marshals Service lacks jurisdiction to retain custody of federal
detainees on foreign soil and the Central Authority of the United
Kingdom would not agree to assume temporary custody of McKeeve so
that he could attend the deposition.1 Second, British
1The appellant asserts that the government did not make a
bona fide effort to facilitate his attendance at Redpath's
deposition. The record, which includes the correspondence
between the two governments, refutes this assertion.
7
magistrates typically prohibit the videotaping and audiotaping of
depositions, and made no exception in this instance. The
district court nonetheless found that Redpath was an unavailable
witness and that the interest of justice warranted the
deposition. Working within the spare confines of the British
scheme, the court directed the government to transport the
appellant's attorney to the deposition and to install two
telephone lines one that would allow the appellant to monitor
the deposition from his prison cell and another that would allow
him to consult privately with counsel during the deposition. The
court reserved a ruling on the Confrontation Clause objections
until the time of trial.
Redpath's deposition was taken before a British
magistrate in the Solihull Magistrates' Court, Birmingham,
England. Lawyers for the government and for both defendants
attended and questioned the deponent. A solicitor (who doubled
in brass as the clerk of the Magistrates' Court)
contemporaneously prepared a transcript. The appellant monitored
the proceedings by means of a live telephone link. At the
conclusion of the session, the solicitor certified the transcript
as accurate and forwarded it to the district court. When the
prosecution subsequently offered the deposition at trial, Judge
Keeton overruled the appellant's objections and allowed the
government to read it into evidence.
B. The Legal Landscape.
B. The Legal Landscape.
The use of deposition testimony in criminal trials is
8
disfavored, largely because such evidence tends to diminish a
defendant's Sixth Amendment confrontation rights. See, e.g.,
United States v. Drogoul, 1 F.3d 1546, 1551 (11th Cir. 1993);
United States v. Mann, 590 F.2d 361, 365 (1st Cir. 1978). But
the shrinking size of the globe means that certain criminal
activities increasingly manifest an international cachet and,
because federal courts frequently lack the power to compel a
foreign national's attendance at trial, Rule 15 may offer the
only practicable means of procuring critical evidence. The
resultant tension between the defendant's Confrontation Clause
rights and the prosecution's need to obtain evidence from persons
domiciled abroad, while new to this circuit, threatens to become
a recurring theme.
The various subsections of Rule 15 govern the method
and manner by which depositions in criminal cases are to be
taken. The appellant tacitly concedes that the taking of
Redpath's deposition did not contravene the rule's formal
requirements. Nevertheless, compliance with Rule 15 is a
necessary, but not sufficient, condition to the use of a
deposition at trial. The admissibility of the testimony is quite
another matter. See Fed. R. Crim. P. 15(e). The appellant
cloaks himself in the mantle of the Confrontation Clause and
makes his stand at this juncture.
The Confrontation Clause's "central concern . . . is to
ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of
9
an adversary proceeding before the trier of fact." Maryland v.
Craig, 497 U.S. 836, 845 (1990). The Clause addresses that
concern principally by affording a criminal defendant the right
to confront appearing witnesses face to face and the right to
conduct rigorous cross-examination of those witnesses. See Coy
v. Iowa, 487 U.S. 1012, 1017 (1988); Pennsylvania v. Ritchie, 480
U.S. 39, 51 (1987); see also Ohio v. Roberts, 448 U.S. 56, 63
(1980) (discussing the Confrontation Clause's "preference for
face-to-face confrontation"). Ordinarily, then, when the
government purposes to introduce a deposition at trial in lieu of
live testimony, a defendant has the right to be present during
the deposition so that he may confront the deponent. See
Christian v. Rhode, 41 F.3d 461, 465 (9th Cir. 1994); Don v. Nix,
886 F.2d 203, 206 (8th Cir. 1989).
Withal, we know on the best of authority that the
Confrontation Clause cannot be applied mechanically, but, rather,
must be interpreted "in the context of the necessities of trial
and the adversary process." Craig, 497 U.S. at 850. In other
words, the right of confrontation is not absolute. Yet,
filtering constitutional concerns through a seine woven of
practical necessity is a tricky business, and different
situations likely will yield different accommodations.
When the government conducts a Rule 15 deposition in a
foreign land with a view toward introducing it at trial, the
Confrontation Clause requires, at a minimum, that the government
undertake diligent efforts to facilitate the defendant's
10
presence. See United States v. Kelly, 892 F.2d 255, 262 (3d Cir.
1989); United States v. Salim, 855 F.2d 944, 950 (2d Cir. 1988).
We caution, however, that although such efforts must be
undertaken in good faith, they need not be heroic, and the
possibility of using a deposition does not evaporate even if
those efforts prove fruitless. In that event the district court
must determine, on a case-specific basis, whether reasonable
alternative measures can preserve adequately the values that
underpin the defendant's confrontation rights. In cases where
actions by, or the laws of, a foreign nation effectively preclude
the defendant's presence, furnishing the defendant with the
capability for live monitoring of the deposition, as well as a
separate (private) telephone line for consultation with counsel,
usually will satisfy the demands of the Confrontation Clause.
See United States v. Mueller, 74 F.3d 1152, 1156-57 (11th Cir.
1996); Kelly, 892 F.2d at 260; Salim, 855 at 950.
C. The Appellant's Constitutional Challenge.
C. The Appellant's Constitutional Challenge.
In this case, the record reveals that the prosecution
made reasonable and diligent efforts to secure the appellant's
attendance at Redpath's deposition: it offered to defray the
cost of transporting the appellant and his counsel to the
deposition and requested that British authorities accept
temporary custody of him to ensure his presence. Only a lack of
cooperation by the host nation stymied the appellant's
appearance, and the Justice Department was powerless to coerce
British assistance. The appellant points to nothing more that
11
the prosecution plausibly could have done to facilitate a face-
to-face confrontation. What is more, when the British
authorities balked, Judge Keeton fashioned a reasonable
alternative, and the prosecution provided the requisite
telephonic links between the appellant's prison cell and the
Solihull Magistrates' Court. Under the prevailing circumstances,
the government's efforts to secure (or, alternatively, to
approximate) a face-to-face confrontation were constitutionally
adequate.
This finding, in itself, does not defeat the
appellant's constitutional challenge. Face-to-face confrontation
in a courtroom setting has yet another virtue; it permits the
trier of fact better to observe a witness's demeanor. See Craig,
497 U.S. at 846; Drogoul, 1 F.3d at 1552. Like the right of
confrontation itself, however, this value is not absolute. Thus,
even when a witness is unavailable to testify at trial, the
Clause countenances the admission of certain extrajudicial
statements as long as they possess sufficient indicia of
reliability. See Roberts, 448 U.S. at 65-66; Puleio v. Vose, 830
F.2d 1197, 1205 (1st Cir. 1987).
For this purpose, "[r]eliability can be inferred
without more in a case where the evidence falls within a firmly
rooted hearsay exception." Roberts, 448 U.S. at 66. So it is
here: Fed. R. Evid. 804(b)(1) limns a hearsay exception for
former testimony of an unavailable witness. This exception's
roots are deeply embedded in American jurisprudence. See, e.g.,
12
Mattox v. United States, 156 U.S. 237, 240-44 (1895). Consistent
with this tradition, courts seem disinclined to find any
Confrontation Clause transgression when the prosecution offers
deposition testimony under this rule. See, e.g., Ecker v. Scott,
69 F.3d 69, 71 (5th Cir. 1995); Kelly, 892 F.2d at 261-62; Salim,
855 F.2d at 954-55. We join these courts and hold that evidence
properly within the former testimony hearsay exception is, by
definition, not vulnerable to a challenge based upon the
Confrontation Clause.
To bring Redpath's testimony within the protective
embrace of this holding, the government had to make a threshold
showing (1) that the witness was unavailable, and (2) that the
deposition constituted former testimony. The appellant contests
both points.
The standard test for unavailability is whether the
witness's attendance could be procured "by process or other
reasonable means." Fed. R. Evid. 804(a)(5). In a criminal
context, however, Confrontation Clause concerns color the Rule
804 availability inquiry and heighten the government's burden.
See Ecker, 69 F.3d at 71-72. Thus, the prosecution must actively
attempt to secure the witness's presence at trial. See
Christian, 41 F.3d at 467. Here, as we noted above, the
government made an assiduous effort to convince Redpath to attend
the trial. We fail to discern any further action that the
prosecutor reasonably could have taken to bring the witness
before the jury.
13
The remaining question is whether Redpath's deposition
amounted to "former testimony" within the purview of Fed. R.
Evid. 804(b)(1). The appellant's objection on this score is a
bare assertion that the method of transcribing the proceeding was
"slow and inexact."2 We must balance this complaint against the
dominant characteristics of the deposition, namely, the
administration of an oath; unlimited direct and cross-examination
by attorneys for all parties; the ability to lodge objections;
oversight by a judicial officer; the compilation of the
transcript by a trained solicitor; and the lack of a language
barrier.
To be sure, the deposition did not comport in all
respects with American practice, but that circumstance alone does
not render the testimony not "in compliance with law" and
therefore beyond the reach of Rule 804(b)(1). We agree with the
Second Circuit that "unless the manner of examination required by
the law of the host nation is so incompatible with our
fundamental principles of fairness or so prone to inaccuracy or
bias as to render the testimony inherently unreliable, . . . a
deposition taken . . . in accordance with the law of the host
nation is taken `in compliance with law' for purposes of Rule
804(b)(1)." Salim, 855 F.2d at 953. The British proceeding
2The appellant offers no convincing examples of any
inexactitude. His only supporting datum is an unamplified
statement by counsel for MIL, as follows: "There is one
particular phrase that has that is a crucial question that I
remember going in as a different question." The specific
question and answer never have been identified.
14
substantially jibes with our practice and thus satisfies the
rule.
The appellant's final plaint is that the Redpath
deposition was not videotaped. History undermines this plaint.
The former testimony exception to the Confrontation Clause
predates the development of videotaping technology by nearly a
century. See Mattox, 156 U.S. at 240-44. Thus, the exception
obviously does not envision the need to present the trier of fact
with a video recording of the declarant's testimony. In a case
like this one where the host nation prohibits videotaping the
district court's refusal to condition its authorization of the
deposition on the use of such a technique did not offend the
Constitution.
We hasten to add, however, that our opinion should not
be read to discourage the use of videotaped depositions in this
type of situation. Having the trier of fact observe the
testimonial demeanor of the witness enhances important
Confrontation Clause values, including the perception of fairness
in criminal trials. See Craig, 497 U.S. at 846; Coy, 487 U.S. at
1018-20. For these reasons, although videotaping is not
constitutionally required, we urge the district courts, if
videotaping is feasible, to give serious consideration to
granting defendants' requests to employ the technique.
To sum up, the Redpath deposition satisfies the Rule
804(b)(1) standard. Moreover, the very characteristics which
contribute to that conclusion e.g., administration of an oath;
15
unlimited direct and cross-examination; ability to lodge
objections; oversight by a judicial officer; compilation of the
transcript by a trained solicitor; and linguistic compatibility
also provide sufficient indicia of reliability to assuage any
reasonable Confrontation Clause concerns. See Roberts, 448 U.S.
at 66; Salim, 855 F.2d at 954-55. The district court did not err
in admitting the deposition testimony into evidence.
III. THE CONSPIRACY CONVICTION
III. THE CONSPIRACY CONVICTION
The appellant launches a barrage of nearly unthirlable
arguments directed toward his conviction for conspiracy to
violate IEEPA. These arguments land well wide of the mark.
IEEPA codifies Congress's intent to confer broad and
flexible power upon the President to impose and enforce economic
sanctions against nations that the President deems a threat to
national security interests. See United States v. Arch Trading
Co., 987 F.2d 1087, 1093-94 (4th Cir. 1993). Included in the
President's IEEPA authority is the right to prohibit persons from
engaging in commercial transactions with such hostile foreign
nations. See U.S.C. 1702(a)(1)(B). The appellant reads this
provision as applying only to persons who are subject to the
jurisdiction of the United States. He then posits that as
neither of his supposed accomplices fell within the territorial
jurisdiction of the United States when the events at issue
transpired McNeil and Sullivan are domiciliaries of the United
Kingdom and Malta, respectively, and neither of them entered the
United States during the relevant time frame they could not in
16
terms violate IEEPA. A person cannot conspire with himself, the
appellant's thesis runs, and to suggest that McNeil and Sullivan
were coconspirators in this matter implies that IEEPA's reach
extends extraterritorially a result inconsonant with both the
statutory text and the traditional presumption against
extraterritoriality. See United States v. Nippon Paper Indus.
Co., 109 F.3d 1, 3 (1st Cir.), petition for cert. filed, 65
U.S.L.W. 3839 (U.S. June 13, 1997) (No. 96-1987). Based on this
reasoning, the appellant concludes that any agreement among
McNeil, Sullivan, and himself concerning the exportation of
computers to Libya cannot form the basis for a conspiracy
conviction.
This theory is both procedurally and substantively
infirm. As a matter of procedure, the theory makes its debut in
McKeeve's appellate brief, and "[i]f any principle is settled in
this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal."
Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). There are no
excusatory circumstances here.
Despite this procedural default, we could still, as a
matter of discretion, review the argument for plain error. See
United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995). But
so detailed a review is unnecessary here, for there is no error,
plain or otherwise. The appellant's theory overlooks a critical
17
component of IEEPA's framework. Among other things, IEEPA
expressly confers on the President the power to prohibit
commercial transactions with certain foreign nations "with
respect to any property . . . subject to the jurisdiction of the
United States." 50 U.S.C. 1702(a)(1). The computer equipment
around which the conspiracy centered was stored in Massachusetts
and unquestionably subject to the jurisdiction of the United
States. Accordingly, as long as either McNeil or Sullivan knew
the locus of the equipment and knew that U.S. law prohibited its
export to Libya,3 the ensuing agreement with the appellant had an
unlawful design sufficient to animate the federal conspiracy
statute.
In the case at hand, the government adduced ample proof
of both propositions. The record contains abundant evidence that
McNeil, at least, was aware of U.S. export restrictions and
purposefully sought to evade them. Of particular note are her
successful efforts to coerce Rucker into signing an SED that
falsely described the ultimate destination of the goods and her
countermanding of the suggestion that the goods be discharged in
Antwerp. In addition, the nisi prius roll shows beyond hope of
contradiction that the appellant performed an overt act in
furtherance of the conspiracy when he purchased the equipment
3To support the conviction, the government only needed to
prove that the appellant conspired with one other person. See
United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir. 1996),
cert. denied, 117 S. Ct. 959 (1997). The government never
alleged that MIL was a coconspirator, so our choice is limited to
McNeil or Sullivan.
18
from NEXL in Massachusetts and attempted to ship it to Libya.
McKeeve's purchase supplied the final piece of proof needed to
ground a conviction on the conspiracy count. See Ford v. United
States, 273 U.S. 593, 620 (1927) (holding that, when a conspiracy
"was directed to violation of the United States law within the
United States by men within and without it, and everything done
was at the procuration and by the agency of each for the other in
pursuance of the conspiracy . . . all are guilty of the offense
of conspiring to violate the United States law whether they are
in or out of the country"); United States v. Inco Bank & Trust
Corp., 845 F.2d 919, 920 n.4 (11th Cir. 1988) (per curiam)
(noting "that a conspiracy occurring partly within the United
States is prosecutable without resort to any theory of
extraterritorial jurisdiction"); Rivera v. United States, 57 F.2d
816, 819 (1st Cir. 1932) ("The place of the conspiracy is
immaterial provided an overt act is committed within the
jurisdiction of the court."). No more is exigible.
IV. OTHER ALLEGED TRIAL ERRORS
IV. OTHER ALLEGED TRIAL ERRORS
The appellant raises a host of issues that relate
loosely to his oft-repeated claim that he did not receive a fair
trial. Individually, these issues are insubstantial, and in
combination they produce no synergistic effect.
A. Admission of Sullivan's Statement.
A. Admission of Sullivan's Statement.
In a protest that harks back to his sufficiency
challenge, the appellant takes umbrage with the district court's
decision to admit, over his objection, evidence of certain out-
19
of-court statements allegedly made by Sullivan to third parties.
The statements, as recounted by Redpath, specifically linked the
appellant to Sullivan; showed that Sullivan acted throughout with
a view toward transshipping the computer equipment through Cyprus
to Libya; and undermined the appellant's testimony that his
attempt to off-load the equipment in Antwerp was not a ruse, but,
rather, a sincere effort to abort the transaction once he became
aware that it would violate U.S. law. We customarily review
decisions to admit or exclude evidence for abuse of discretion,
see United States v. Houlihan, 92 F.3d 1271, 1296 (1st Cir.
1996), cert. denied, 117 S. Ct. 963 (1997), and we follow that
praxis here.
The trial court admitted the challenged evidence on the
authority of Fed. R. Evid. 801(d)(2)(E), which creates an
exception to the hearsay rule for extrajudicial statements "by a
coconspirator of a party during the course and in furtherance of
the conspiracy." The appellant's principal objection to the
court's action stems from his extraterritoriality argument. We
previously rejected that argument, see supra Part III, and the
theory that undergirds it fares no better in an evidentiary
context.
The second prong of the appellant's objection suggests
that the government did not adduce sufficient evidence of
Sullivan's involvement to bring his statements within the reach
of Rule 801(d)(2)(E). This prong rests on an impeccable legal
foundation. An out-of-court statement of a non-testifying
20
coconspirator is admissible under Rule 801(d)(2)(E) only if the
district court supportably finds that "it is more likely than not
that the declarant and the defendant were members of the
conspiracy when the hearsay statement was made, and that the
statement was in furtherance of the conspiracy." United States
v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977); accord United
States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992).
Factually, however, the objection falls flat. The
government showed that Sullivan headed Afromed; that his name
appeared on numerous documents created pursuant to the
transaction; that he was in constant contact with the appellant
regarding the status of the project (including the customs hold);
and that he was responsible for arranging transshipment of the
goods to the Libyan purchaser. The record also shows that, while
in the United States, the appellant sent Sullivan a memo that
advised Sullivan to use extreme caution in contacting him and to
be very careful what he said in any such communication. In light
of this evidentiary predicate, the district court had a
reasonable basis for concluding that, more likely than not,
McKeeve and Sullivan were coconspirators and that Sullivan's
comments to Redpath were made during and in furtherance of the
conspiracy. Consequently, the decision to admit Sullivan's
hearsay statements under the coconspirator exception did not
constitute an abuse of discretion.
B. Admission of Lane's Testimony.
B. Admission of Lane's Testimony.
During trial, Eric Lane, a British customs official,
21
testified that the appellant spoke to him anent DTI's earlier
warning that virtually all computers sent to Libya ended up in
arms factories. The appellant objected to this testimony on
relevancy grounds and added that, to the extent the testimony
might otherwise be admissible, it was unduly prejudicial. He
argued then, and reasserts now, that since U.S. law bans the
export of any product (except certain humanitarian aid) to any
Libyan entity, the fact that a DTI official had warned him that
computer shipments would be used to outfit Libyan arms factories
is irrelevant to any crime charged in the indictment. For its
part, the government points to the appellant's admission that he
knew all along that the U.S. embargo at least paralleled United
Nations sanctions (which explicitly prohibit the sale of
equipment destined for Libyan military applications), and that,
in light of this admission, Lane's testimony tended to undercut
the appellant's claim that he did not realize the Afromed
transaction transgressed U.S. law.
The district court accepted the government's position,
but told the jury that it could consider the proffered testimony
only with regard to McKeeve's state of mind (i.e., whether he
plotted to contravene the Libyan embargo in knowing violation of
IEEPA) and not for the truth of the matter asserted. We review
this decision for abuse of discretion. See Houlihan, 92 F.3d at
1297. We detect no abuse either in the trial court's decision to
admit Lane's testimony as probative of McKeeve's state of mind or
in its refusal to exclude the proffer under Fed. R. Evid. 403.
22
The relevancy objection requires scant comment. Fed.
R. Evid. 401 deems relevant evidence that 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." The instant indictment
charged the appellant with knowingly and willfully violating, and
conspiring to violate, IEEPA. His state of mind, assessable only
by indirect proof, see United States v. St. Michael's Credit
Union, 880 F.2d 579, 600 (1st Cir. 1989), was of critical
importance to the resolution of these charges. When, as now, the
prosecution offers evidence bearing on an inherently subjective
inquiry, the relevancy threshold is at its lowest. See United
States v. Tierney, 760 F.2d 382, 387 (1st Cir. 1985). Seen in
this light, Judge Keeton reasonably could conclude as, indeed,
he did that McKeeve's knowledge of the likely end use of the
computer equipment tended to make less probable his state-of-mind
defense. Hence, the judge did not err in admitting the
statement.
The Rule 403 objection is similarly unavailing. That
rule directs a trial court to exclude relevant evidence if, inter
alia, "its probative value is substantially outweighed by the
danger of unfair prejudice." But almost all evidence is meant to
be prejudicial why else would a party seek to introduce it?
and it is only unfairly prejudicial evidence that must be
banished. See United States v. Rodriguez-Estrada, 877 F.2d 153,
156 (1st Cir. 1989). Although the Lane testimony may have
23
prejudiced the appellant in the sense that it fit, tongue and
groove, into the prosecution's theory of the case, there is
nothing unfair about the jury's weighing of it for the limited
purpose of determining the appellant's state of mind. For this
reason, we decline the appellant's invitation to second-guess the
district judge's evidentiary gravimetry. See Freeman v. Package
Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988) ("Only 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.").
C. Admission of Harmon's Testimony.
C. Admission of Harmon's Testimony.
The appellant also cries foul in respect to a statement
made at trial by David Harmon, a Treasury Department official, to
the effect that the U.S. embargo against Libya resulted from a
presidential determination that Libya supports international
terrorism. Because the appellant did not lodge a contemporaneous
objection to this testimony, we ordinarily would review his
belated challenge for plain error. See United States v. Griffin,
818 F.2d 97, 99-100 (1st Cir. 1987). Here, however, the
circumstances obviate any need to engage in plain error review.
See United States v. Castro-Lara, 970 F.2d 976, 981 n.5 (1st Cir.
1992) (explaining that, if no error inheres, plain error review
becomes a superfluous step).
The government called Harmon to establish the existence
and effect of the economic sanctions imposed against Libya.
24
Harmon's description of the purpose behind the embargo provided
the jury with relevant background information that helped to
stitch together an appropriate context in which the jury could
assess the evidence introduced during the trial. Admitting
Harmon's statement was well within the realm of the district
court's discretion. See, e.g., Castro-Lara, 970 F.2d at 981;
United States v. Daly, 842 F.2d 1380, 1388 (2d Cir. 1988).
Trials are meaty affairs, and appellate courts should not insist
that all taste be extracted from a piece of evidence before a
jury can chew on it.
D. Prosecutorial Misconduct.
D. Prosecutorial Misconduct.
The appellant's next assignment of error is predicated
on a claim that the prosecutor overstepped her bounds during
opening and closing arguments. This claim is a superscription
that grows out of the prosecutor's references to Lane's testimony
in her opening statement and to Harmon's testimony in her
summation. Because the prosecutor, on each occasion, did no more
than describe accurately testimony that the jury would hear or
already had heard, the assignment of error fails. At least in
the absence of highly exceptional circumstances (not present
here), a comment by counsel in the course of jury summation that
merely recounts properly admitted testimony, accurately and
without embellishment or distortion, cannot constitute reversible
error. See Jentges v. Milwaukee County Circuit Court, 733 F.2d
1238, 1242 (7th Cir. 1984). So, too, a comment in the course of
an opening statement that merely presages subsequently admitted
25
testimony cannot constitute reversible error. See id.
V. SENTENCING
V. SENTENCING
The district court sentenced the appellant to a prison
term of 51 months, the low end of the applicable guideline
sentencing range (offense level 24; criminal history category I).
Salvaging scant succor from this fact, the appellant strives to
persuade us that the court made two material errors in its
sentencing calculations. We are unconvinced.
A. Evasion of National Security Controls.
A. Evasion of National Security Controls.
With respect to export control offenses, the sentencing
guidelines provide for a base offense level (BOL) of 14 unless
"national security or nuclear proliferation controls were
evaded," in which case the BOL escalates to 22. USSG 2M5.1(a).
The lower court found that the offense of conviction qualified
for the eight-level enhancement. The appellant claims that this
ruling is based on an erroneous reading of the enhancement
provision. Because this claim implicates the meaning and scope
of the guideline, our review is plenary. See United States v.
Muniz, 49 F.3d 36, 41 (1st Cir. 1995).
The appellant's core contention is that USSG
2M5.1(a)(1) cannot apply in a sale-of-goods case unless the
government presents evidence that the particular goods, when or
if sold, constitute an actual threat to national security. We
disagree. In Executive Order No. 12,543, the President
determined that Libya posed an "unusual and extraordinary threat
to the national security and foreign policy of the United States"
26
and therefore ordered an embargo covering the exportation of
virtually all goods to Libya. The embargo is an exercise of
executive power authorized by IEEPA "to deal with any unusual and
extraordinary threat . . . to the national security." 50 U.S.C.
1701. In short, the embargo is intended as a national security
control.
That ends the matter. As we read it, section
2M5.1(a)(1) applies to any offense that involves a shipment (or
proposed shipment) that offends the embargo, whether or not the
goods shipped actually are intended for some innocent use. See
United States v. Shetterly, 971 F.2d 67, 76 (7th Cir. 1992). The
appellant's argument to the contrary seeks to substitute the
judgment of a factfinder for that of the executive branch, which
has made a determination that the export of any goods to Libya,
excepting only certain humanitarian aid, threatens national
security interests. Such a course is fraught with separation-of-
powers perils, see Department of the Navy v. Egan, 484 U.S. 518,
527 (1988) (noting the primacy of presidential power to protect
national security interests), and we eschew it.
B. Obstruction of Justice.
B. Obstruction of Justice.
The appellant's remaining complaint is equally
unavailing. At the disposition hearing, the district court
increased the appellant's BOL for obstruction of justice. See
USSG 3C1.1. The court based this two-level enhancement on a
finding that McKeeve committed perjury when he testified that he
did not know his actions violated U.S. law. We review a
27
sentencing court's factbound finding of perjury for clear error.
See United States v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).
Before imposing an obstruction of justice enhancement
predicated on perjurious testimony, a sentencing court must
survey the trial evidence to ascertain whether it establishes
that the defendant gave "false testimony concerning a material
matter with the willful intent to provide false testimony rather
than as a result of confusion, mistake, or faulty memory."
United States v. Dunnigan, 507 U.S. 87, 94 (1993). The court's
findings need not be precise to the point of pedantry. While
separate findings as to each element are preferable, the
sentencing court's determination is sustainable so long as it
"encompasses all of the factual predicates." Id. at 95. This is
such a case.
The appellant does not challenge the materiality
component of the district court's determination. Rather, he
concentrates his fire on the finding of falsity. He cites
language that once appeared in the Sentencing Commission's
commentary, USSG 3C1.1, comment. (n.1) (Nov. 1995) and earlier
editions, to the effect that in applying section 3C1.1 "in
respect to alleged false testimony or statements by the
defendant, such testimony or statements should be evaluated in a
light most favorable to the defendant," and claims that the
sentencing court erred by failing to consider his testimonial
statements accordingly.
The most recent version of the guidelines deleted this
28
language, see USSG App. C, amend. 566 (Nov. 1997), but it was
zoetic at the time of the appellant's sentencing, and he is
therefore entitled to its benefit. See United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). But, this
circumstance does not profit McKeeve. His suggested reading of
the language would allow "the safeguard [to] swallow the rule in
a single gulp," Akitoye, 923 F.2d at 228, and we long have
rejected it. In its heyday the now-discarded language never
required sentencing courts to resolve all evidentiary conflicts
to the defendant's benefit. Thus, a sentencing court required to
apply that language today need only construe allegedly perjurious
statements in a defendant-favorable way if such statements are
genuinely ambiguous or if the record, after credibility
determinations have been made, plausibly supports an innocent
interpretation. See United States v. Clark, 84 F.3d 506, 510
(1st Cir.), cert. denied, 117 S. Ct. 272 (1996).
Here, the overwhelming weight of the credible evidence
contradicted the appellant's professions of ignorance. Numerous
witnesses testified to incriminating statements and conduct that
occurred before the appellant claims he became aware of possible
legal problems. This evidence strongly supports a finding that
the appellant knew all along that his actions were illegal. In
these circumstances, the obsolete language is inapposite and the
district court's finding of perjury is unimpugnable.
The supportability of this finding likewise defeats the
appellant's related claim that the two-level enhancement punished
29
him for exercising his constitutional right to testify in his own
defense. That right, though precious, does not include a right
to commit perjury. See Dunnigan, 507 U.S. at 96.
VI. CONCLUSION
VI. CONCLUSION
We need go no further. To the extent that the
appellant rolls out other arguments, they are plainly inadequate
and do not warrant discussion. The short of it is that, in
colloguing to sell computer equipment to Libya, McKeeve spun a
tangled international web that ultimately ensnared its creator.
For that conduct, he was lawfully indicted, fairly tried, justly
convicted, and appropriately sentenced.
Affirmed.
Affirmed.
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