July 12, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2226
UNITED STATES,
Appellee,
v.
JAMES L. MITCHELL,
Defendant - Appellant.
ERRATA SHEET
The opinion of this Court issued on June 5, 1996, is amended
as follows:
Page 6, paragraph 1, is amended to read:
Traditionally, in the context of a
motion to suppress, we have reviewed the
district court's findings of fact, as well as
any mixed findings of law and fact, for clear
error. See United States v. Schiavo, 29 F.3d
6, 8 (1st Cir. 1994); United States v.
Rodr guez-Morales, 929 F.2d 780, 783 (1st
Cir. 1991), cert. denied, 502 U.S. 1030
(1992). A recent Supreme Court case,
however, determines that "as a general matter
determinations of reasonable suspicion and
probable cause should be reviewed de novo on
appeal." Ornelas v. United States, 116
S. Ct. 1657, 1663 (1996) (noting that
findings of historical fact are reviewed only
for clear error and that "due weight" should
be given "to inferences drawn from those
facts by resident judges and local law
enforcement officers"). Therefore, to the
extent that our analysis turns on making
those determinations, our review is de novo,
as is our review of the district court
findings of law. See Mart nez-Molina, 64
F.3d at 726.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2226
UNITED STATES,
Appellee,
v.
JAMES L. MITCHELL,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Walter B. Prince, by Appointment of the Court, with whom
Peckham, Lobel, Casey, Prince & Tye was on brief for appellant.
Kevin J. Cloherty, Assistant United States Attorney,
Donald K. Stern, United States Attorney, and Sheila W. Sawyer,
Assistant United States Attorney, were on brief for appellee.
June 5, 1996
TORRUELLA, Chief Judge. The defendant in this arson
TORRUELLA, Chief Judge.
case stands convicted by a jury of conspiracy and arson under 18
U.S.C. 371 and 844(i), respectively. For the reasons stated
herein, we affirm the decision of the district court on all
points.
I. BACKGROUND
I. BACKGROUND
On the evening of February 6, 1989, the Boston Fire
Department responded to a multiple-alarm fire at 295-297 Franklin
Street (the "Building"), in Boston, which was owned by Jack
Gateman ("Gateman"). At that time, the defendant, James L.
Mitchell ("Mitchell"), was a tenant occupying the Building's
second, third and fourth floors, where he and his partner, Allen
Gallant ("Gallant"), ran a private social club known as "Club
297" (the "Club"). The Club had been ordered closed by the City
of Boston for violation of City codes in January 1989. On the
day of the fire, several men, including Ronald Wallace
("Wallace"), had been working on repairs at the Club. Wallace
testified at trial that during the course of that day Mitchell
told him he would pay him $11,000 to set fire to the Building,
making an initial payment. Mitchell returned to his home in
Vermont, while Wallace returned to the Club. Mitchell called the
Club from his car telephone, and spoke to Wallace, who testified
that Mitchell asked him whether he would set the fire. After the
phone call, Wallace went to the fourth floor of the Building and
set some mattresses stacked there on fire. He and the other men
in the Club fled the Building.
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Over the next months, Mitchell wired Wallace sums of
money through Western Union. Evidence was entered that Gallant
reported the loss the Club suffered in the fire to the Club's
insurance broker, and pursued the claim through an insurance
broker. Testimony at trial established that some $59,400 was
paid out on the Club's policies, most of which went to the
Internal Revenue Service.
In November 1991, Mitchell was charged under a twenty-
two count indictment with conspiracy, arson, use of fire to
commit a felony, and wire fraud. He was prosecuted on six of
those counts. After a jury trial, he was found guilty on the
conspiracy and arson charges, but acquitted of the remaining
counts. This appeal ensued.
II. ADMISSION OF SEIZED EVIDENCE
II. ADMISSION OF SEIZED EVIDENCE
The district court adopted the report and
recommendation of the magistrate judge, who found the following
facts. See United States v. Mart nez-Molina, 64 F.3d 719, 723
(1st Cir. 1995) ("We recite the facts adduced at a suppression
hearing in the light most favorable to the district court's
ruling to the extent that they derive support from the record and
are not clearly erroneous."). On the night of the fire,
Lieutenant Paul R. LeBlanc ("Lt. LeBlanc") of the Fire
Investigation Unit reported to the scene of the fire. After it
was "put down," within an hour or so of being reported to the
Fire Department at 9:15 p.m., Lt. LeBlanc entered the premises,
along with two associates, in order to determine the cause and
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origin of the fire. He seized carpet samples and sections of
stair rises, later entered in evidence at trial. Irregular burn
patterns prompted him to suspect that the fire was not
accidental, and that it originated on the fourth floor. Adequate
photographs could not be taken, however, since there was no light
and the water on the floor precluded reliable flash photography.
The following morning, between 8:00 and 9:00 a.m., Lieutenant Roy
Burrill ("Lt. Burrill"), also of the Fire Investigation Unit, was
sent to the site without a warrant. He seized two sections of
flooring from the fourth floor. A third search was conducted by
First Security Company, a private investigation company hired by
Gateman to determine the cause of the fire. They also seized
samples from the fourth floor.
On appeal, Mitchell challenges the trial court's
admission of the evidence seized by Lt. Burrill, on the basis
that there were no exigent circumstances justifying his entrance
without a warrant.1
1 Although he does not clearly state that his appeal is limited
to the evidence admitted from Lt. Burrill's search, Mitchell's
argument does not address the other two searches, and so we limit
our analysis to Lt. Burrill's search and seizure. We note in
passing, however, that even if Mitchell has not waived the right
to object to the admission of the evidence from the other
searches, see infra, the district court undoubtedly did not err
in admitting that evidence, for the very reasons pronounced by
the magistrate judge. First, Lt. LeBlanc's search was
constitutional under the rationale of Michigan v. Tyler, 436 U.S.
499, 510 (1978) ("Officials need no warrant to remain in a
building for a reasonable time to investigate the cause of a
blaze after it has been extinguished."). Second, First Security
Company's search was a purely private search and seizure that did
not involve official action; as such, it does not come under the
Fourth Amendment, which does not proscribe unreasonable searches
and seizures by private persons. See United States v. Jacobsen,
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A. Waiver
A. Waiver
The United States claims that Mitchell waived the right
to appeal the admission of this evidence by failing to object
within ten days to the magistrate judge's report and
recommendation on the defendant's Motion to Suppress the Physical
Evidence. See Rule 3(b), Rules for United States Magistrates in
the United States District Court for the District of
Massachusetts. As the report and recommendation of the
magistrate judge itself pointed out, we have repeatedly indicated
that failure to comply with Rule 3(b) precludes review by this
court. See, e.g., United States v. Valencia-Copete, 792 F.2d 4,
6 (1st Cir. 1986); United States v. Vega, 678 F.2d 376, 379 (1st
Cir. 1982) ("There can be no appeal from a magistrate's report
and recommendation unless objections are filed thereto.").
Mitchell now maintains that his objection to the
evidence seized by Lt. Burrill has been saved from waiver despite
his failure to object because, subsequent to the report and
recommendation, the district court issued an order stating it
would reconsider the suppression issue as regards the evidence
seized by Lt. Burrill. In that order, the district court
requested, among other things, that Mitchell identify the
portions of memoranda and evidence the court should consider in
deciding the motion to suppress the evidence seized. All of the
seized evidence offered was admitted at trial. We need not delve
into the intricacies of whether the district court order
466 U.S. 109, 113 (1984).
-5-
effectively revived Mitchell's motion to suppress the evidence
seized by Lt. Burrill, however, as we find that the district
court did not err in admitting the disputed evidence.
-6-
B. Analysis of Search and Seizure Issues
B. Analysis of Search and Seizure Issues
Traditionally, in the context of a motion to suppress,
we have reviewed the district court's findings of fact, as well
as any mixed findings of law and fact, for clear error. See
United States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994); United
States v. Rodr guez-Morales, 929 F.2d 780, 783 (1st Cir. 1991),
cert. denied, 502 U.S. 1030 (1992). A recent Supreme Court case,
however, determines that "as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de
novo on appeal." Ornelas v. United States, 116 S. Ct. 1657, 1663
(1996) (noting that findings of historical fact are reviewed only
for clear error and that "due weight" should be given "to
inferences drawn from those facts by resident judges and local
law enforcement officers"). Therefore, to the extent that our
analysis turns on making those determinations, our review is de
novo, as is our review of the district court findings of law.
See Mart nez-Molina, 64 F.3d at 726.
Our analysis is framed by two Supreme Court decisions:
Michigan v. Tyler, 436 U.S. 499 (1978), and Michigan v. Clifford,
464 U.S. 287 (1984). The basic Fourth Amendment framework is
clear. "Courts have consistently followed 'one governing
principle' in interpreting [the Fourth Amendment]: 'except in
certain carefully defined classes of cases, a search of private
property without proper consent is 'unreasonable' unless it has
been authorized by a valid search warrant.'" Mann v. Cannon,
731 F.2d 54, 58 (1st Cir. 1984) (quoting Camara v. Municipal
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Court, 387 U.S. 523, 528-29 (1967)). Nonetheless, "a warrantless
entry by criminal law enforcement officials may be legal when
there is compelling need for official action and no time to
secure a warrant." Tyler, 436 U.S. at 509. Mitchell's core
contention here is that there were no such exigent circumstances
in the present case, and so Lt. Burrill's warrantless search was
unconstitutional, and the evidence he seized should have been
suppressed.
The analysis in Michigan v. Tyler controls our
decision. In Tyler, a fire broke out in a furniture store
shortly before midnight; the fire had been reduced to "smoldering
embers" when the Fire Chief reported to the scene at 2:00 a.m.
Id. at 501. He concluded that the fire was possibly the result
of arson, and called a police detective, who took some
photographs, but "abandoned his efforts because of the smoke and
steam." Id. at 502. After a brief survey through the rest of
the building to look for further evidence of the cause of the
fire, the Chief and police detective left the site. Four hours
later, the Chief returned with the Assistant Chief, whose task it
was to determine the origin of all fires in the township. The
fire was out, and the building was empty. They quickly left,
returning with the police detective around 9:00 a.m. They found
suspicious burn marks, not visible earlier, and took samples of
carpet and stairs.
Rejecting the premise that "the exigency justifying a
warrantless entry to fight a fire ends, and the need to get a
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warrant begins, with the dousing of the last flame," id. at 510,
the Court found the two searches conducted on the morning after
the fire were constitutionally permitted. After noting that the
investigation on the night of the fire was hindered by the
darkness as well as the steam and smoke, the Court found that the
fire officials
departed at 4 a.m. and returned shortly
after daylight to continue their
investigation. Little purpose would have
been served by their remaining in the
building, except to remove any doubt
about the legality of the warrantless
search and seizure later that same
morning. Under these circumstances, we
find that the morning entries were no
more than an actual continuation of the
first . . . .
Id. at 511.
The facts here closely parallel those of Tyler.
Lt. LeBlanc entered the scene after the fire was "put down," and
within roughly an hour of the time the fire was reported, in
order to determine the cause and origin of the fire. The
investigation was hampered by the lack of light and by the
presence of water on the floor: photographs could not be taken.
The following morning, between 8:00 and 9:00 a.m., roughly twelve
hours after the fire had been reported, Lt. Burrill entered the
scene in order to take additional samples. He removed the water
and debris from the fourth floor, and then seized two sections of
flooring, the challenged evidence. These facts speak for
themselves: Lt. Burrill's search and seizure was clearly a
continuation of the first search by Lt. LeBlanc. Unlike in
Tyler, of course, the same individual did not conduct both
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searches, but both fire officials were of the same Fire
Investigation Unit. Ultimately, as in Tyler, the "investigation
of the fire's origin was [] temporarily suspended on account of
the conditions on the scene and resumed at the first opportunity
when the conditions hampering the investigation subsided."
Clifford, 464 U.S. at 301.
That Lt. Burrill's morning entrance onto the premises
was in fact a continuation of the nighttime search is underscored
by the distinctions the Court drew between its decision in
Clifford and its Tyler holding. In Clifford, a fire broke out in
a private residence and the fire department reported to the scene
at about 5:42 in the morning. The fire was extinguished, and the
fire officials and police left the premises at 7:04 a.m. At
about 1:00 p.m. that afternoon a fire investigator arrived at the
scene, having been informed that the fire department suspected
arson. Despite the fact that the house was being boarded up on
behalf of the out-of-town owners, the Cliffords, and despite
their knowledge that the Cliffords did not plan to return that
day, the fire investigator and his partner searched the house.
After determining that the fire had been set in the basement, and
how, the investigators searched the entire house, taking
photographs. Id. at 289-91. In finding that the challenged
search by the fire investigator was not a continuation of an
earlier search, as in Tyler, and in distinguishing between the
two cases, the Court noted:
Between the time the firefighters had
extinguished the blaze and left the scene
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and the arson investigators first arrived
about 1:00 p.m. to begin their
investigation, the Cliffords had taken
steps to secure the privacy interests
that remained in their residence against
further intrusion. These efforts
separate the entry made to extinguish the
blaze by that made later by different
officers to investigate its origin.
Second, the privacy interests in the
residence -- particularly after the
Cliffords had acted -- were significantly
greater than those in the fire-damaged
furniture store [in Tyler], making the
delay between the fire and the mid-day
search unreasonable absent a warrant,
consent, or exigent circumstances.
Id. at 296. These facts play no role here: there was no
evidence of an effort to secure the burned-out premises, and the
heightened privacy interests a property owner has in a home are
not present. See id. at 297 (noting that "privacy interests are
especially strong in a private residence."). Unlike the private
dwelling in Clifford, this was a commercial property. Mitchell
points out that he was in Vermont at the time of the fire in the
premises he had leased; however, he made no effort to arrange for
the premises to be closed off, unlike the defendants in Clifford,
who were similarly away from their home. These facts permitted
the magistrate judge to conclude that the search by Lt. Burrill
was merely a continuation of Lt. LeBlanc's search, and, thus,
that "there was simply nothing unreasonable, in Fourth Amendment
terms, to [sic] reentering the building and completing the
already commenced investigation of the cause and origin of the
fire when circumstances -- i.e., adequate lighting provided by
daylight and removal of the debris and water -- first reasonably
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permitted." (Report and Recommendation, page 11).
In Clifford the Court laid out three factors for
analyzing the constitutionality of warrantless searches of fire-
damaged premises:
whether there are legitimate privacy
interests in the fire-damaged property
that are protected by the Fourth
Amendment; whether exigent circumstances
justify the government intrusion
regardless of any reasonable expectation
of privacy; and, whether the object of
the search is to determine the cause of
the fire or to gather evidence of
criminal activity.
Clifford, 464 U.S. at 291; see Mann, 731 F.2d at 59-60 (weighing
the Clifford factors in evaluating warrantless entry onto private
premises for health and safety reasons). First, as noted,
Mitchell can have had few privacy interests in the Building.
"Privacy expectations will vary with the type of property, the
amount of fire damage, the prior and continued use of the
premises, and in some cases the owner's efforts to secure it
against intruders." Clifford, 464 U.S. at 292; see Mann, 731
F.2d at 59 (noting that privacy considerations in virtually
abandoned residence used as storehouse were minimal).
Mitchell focuses his argument on the second factor,
exigent circumstances. As he notes, at the time Lt. Burrill
entered the grounds, the fire was out, there were no people in
the building, and there was no danger of further damage, or of
flammable materials being present. However, the Court has
clearly established that "officials need no warrant to remain in
a building for a reasonable time to investigate the cause of a
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blaze after it has been extinguished." Tyler, 436 U.S. at 510;
see Clifford, 464 U.S. at 293 (noting that "[b]ecause determining
the cause and origin of a fire serves a compelling public
interest, the warrant requirement does not apply in such
cases."). Because the magistrate judge properly found that Lt.
Burrill's entrance onto the premises was in fact a continuation
of Lt. LeBlanc's search, and there is no question as to that
search's constitutionality, Mitchell's exigent circumstances
argument fails. Indeed, this is precisely the level of exigency
-- the fire was extinguished, the building was empty, and
conditions had hampered investigations the night before -- whose
constitutionality the Supreme Court upheld in Tyler.
The third Clifford factor examines the purpose of the
search. Here, the district court adopted the magistrate judge's
finding that Lt. LeBlanc entered the site to determine the cause
and origin of the fire, and that Lt. Burrill "was dispatched to
the scene for the purpose of taking additional samples." The
lower court concluded that there was no showing that the fire
department suspected arson when Lt. Burrill was sent to the scene
of the fire. Indeed, Lt. LeBlanc was only one of three
investigators on the scene, and no evidence was presented that
the other investigators shared his opinions, much less that any
of them communicated their impressions to Lt. Burrill.
In his brief, however, Mitchell seems to challenge that
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finding, stating that Lt. Burrill2 "entered the premises without
a warrant specifically to look for and seize evidence of arson."
(Brief of Appellant, p. 14). Mitchell's counsel contended at
oral argument that the magistrate judge's finding that Lt.
Burrill did not suspect arson was improbable, and that common
sense should indicate that Lt. LeBlanc communicated his findings
to Lt. Burrill. We disagree. Lt. Burrill testified that as soon
as he started his shift he was sent to the scene, and that
"[f]requently after a fire has occurred at night, they send the
day crew to the scene . . . because of the benefit of daylight,
it [is] easier to get samples." (Day 1, p. 96). Lt. LeBlanc, in
turn, testified that the Fire Investigation Unit reported to the
fire because it was a multiple-alarm fire, to which the Unit's
response is automatic. Based on this testimony and our
deferential standard of review, we see no reason to find that the
court erred in its finding of fact.
Based on the above, we affirm the district court's
refusal to suppress the evidence from Lt. Burrill's search.
III. ADMISSION OF THE TAPED CONVERSATIONS
III. ADMISSION OF THE TAPED CONVERSATIONS
Prior to and after the fire, Mitchell tape-recorded a
series of telephone conversations he had with other people,
including Wallace and Gallant, without their consent or
knowledge. Excerpted portions of three of these tapes were
2 In fact, defendant's brief refers to nameless "Boston Fire
Department Inspectors" who entered the building on the day
following the fire. As Lt. Burrill is the only official fitting
that description who seized evidence at issue here, we assume
that defendant was describing him.
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admitted at trial. On appeal, Mitchell argues that the district
court committed reversible error in limiting the use of the
tapes, for two reasons. First, he maintains, the taped
conversations were admissible to show bias and inconsistent
testimony. Second, he contends that all the tapes, not just
fragments of them, were admissible for purposes of impeachment.
As he does not specify, in either his brief or at oral argument,
which tapes he actually seeks to enter, why each portion should
be played, or the purpose for which each excerpt not previously
admitted should now be allowed, we limit our discussion to those
tapes actually entered at trial.3
3 Mitchell's counsel stated that there were twenty-one tapes in
all, with roughly twenty-eight hours of recordings. Three tapes
were actually entered at trial, but two other tapes were
discussed. First, defense counsel offered a tape of a
conversation between Mitchell and David Collins, an insurance
broker, in his cross-examination of Collins during voir dire
outside the jury's presence, in order to refresh his recollection
and knowledge. At the prosecution objection to the tape being
played, and after some discussion, the court excused the witness
for the day so that the prosection could hear the tape. The next
day, the following colloquy ensued (Mr. Prince is defense
counsel; Mr. Cloherty is the prosecutor):
THE COURT: . . . . Now, with regard
to the Collins' [sic] telephone call,
have you heard that tape?
MR. CLOHERTY: Yes, Your Honor.
MR. PRINCE: We have resolved that
issue, Your Honor.
MR. CLOHERTY: Mr. Prince isn't going
to play it. That's withdrawn.
THE COURT: All right.
(Day 9, p. 12). Since the tape was withdrawn, we do not consider
it here. Similarly, there was some discussion of a tape recorded
on February 8, 1989, but defense counsel ultimately stated to the
court that he would not be offering anything from that tape, and
so we do not address it here.
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A. The Legal Framework
A. The Legal Framework
A party waives a right when it makes an "'intentional
relinquishment or abandonment'" of it. United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)); see United States v. Marder, 48 F.3d 564, 571
(1st Cir.), cert. denied, 115 S. Ct. 1441 (1995). However, if a
defendant merely fails to make a timely assertion of that right,
only forfeiture results. Olano, 507 U.S. at 733; see Fed. R.
Crim. P. 52(b). The distinction is a key one, for
[m]ere forfeiture, as opposed to waiver,
does not extinguish an "error" under Rule
52(b). . . . If a legal rule was
violated during the District Court
proceedings, and if the defendant did not
waive the rule, then there has been an
"error" within the meaning of Rule 52(b)
despite the absence of a timely
objection.
Id. at 773-74. In short, where there was forfeiture, we apply a
plain error analysis; where there was waiver, we do not. See
United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994)
(noting that the "'Plain Error Rule' may only be invoked in
instances of 'forfeited-but-reversible error,' . . . . because if
there has been a valid waiver, there is no 'error' for us to
correct."); see, e.g., United States v. de la Cruz-Paulino, 61
F.3d 986, 995 (1st Cir. 1995) (holding that where defendant did
not object to prosecution's use of taped conversations, the issue
was not preserved for appeal, but plain error analysis applied);
Marder, 48 F.3d at 571 (holding that, because there was no
waiver, plain error analysis applied). See generally, United
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States v. Taylor, 54 F.3d 967, 972-73 (1st Cir. 1995) (stating
the policy reasons and rationale for the raise-or-waive rule).4
B. The Tapes
B. The Tapes
1. The February 7, 1989 Tape
1. The February 7, 1989 Tape
Mitchell recorded two conversations between himself and
Wallace on February 7, 1989. Defendant sought to enter portions
from that tape as evidence of prior inconsistent statements. At
a hearing on the admissibility of the tape outside of the jury's
presence, the following colloquy ensued (Mr. Prince is the
defense counsel, Mr. Cloherty the prosecutor).
THE COURT: . . . . Mr. Cloherty, what
is the Government's position on playing
all of the February 7 tape with the
exception of the two edits we discussed?
MR. CLOHERTY: We would want the
entire tape played with the exception of
those edits.
THE COURT: And that remains agreeable
to the defendant?
MR. PRINCE: Yes, Your Honor, and
Mr. Cloherty and I will edit the
conversation.
(Day 5, pp. 112-13). At the start of the next day of trial, the
court asked the attorneys whether the tapes had been "edited to
[their] mutual satisfaction"; Mitchell's counsel did not disagree
when the prosecution stated that they had. (Day 6, p. 5). Nor
4 In United States v. Taylor, we stated that the "raise-or-waive
rule is not absolute. But, rescue missions are restricted to the
correction of 'plain' errors," 54 F.3d at 972, without delving
into the difference between forfeiture and waiver. We therefore
note that the distinction we draw today between them does not
conflict with Taylor, in that Taylor was concerned with failure
to timely object -- i.e., forfeiture. Id. (noting that "a
litigant who deems himself aggrieved . . . ordinarily must object
then and there, or forfeit any right to complain at a later
time.").
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did he object when the tapes were offered.
Clearly, Mitchell has waived any objection to the
court's failure to play the entire tape. Not only did he not
object to the use of the tape, but he affirmatively stated that
he was agreeable to the use of the edited tape -- there was a
"direct inquiry from the court" and an "unequivocal assent" from
counsel for the defense. Marder, 48 F.3d at 571 (holding that
defendant did not waive issue where there was no such clear
colloquy, but merely a failure to object). That action raises
his later silence from mere forfeiture to waiver.
2. The February 1, 1989 Tape
2. The February 1, 1989 Tape
Mitchell next sought to introduce excerpts from a
conversation taped between Mitchell and Gallant prior to the
fire. He offered the dialogue, which discussed re-opening the
Club, as evidence of his then-existing state of mind. See Fed.
R. Evid. 803(3). The court stated that the entire tape could not
be played, on the basis that most of it was irrelevant and
inadmissible. However, the next day, based on a transcript
indicating what excerpts the defendant wanted to use, and which
of those the government objected to, the court admitted all the
excerpts Mitchell requested. Mitchell now appears to contend
that the entire tape should have been admitted.
Had Mitchell merely submitted the entire tape, and the
court only admitted excerpts, the defense's failure to object
that the remainder of the tape was not submitted to the jury may
only have resulted in forfeiture, Olano, 507 U.S. at 733, as
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there may have been no "'intentional relinquishment or
abandonment of a known right,'" and so no waiver. Id. (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). But the defense's
actions went beyond this: Mitchell took an active role in
limiting the portions considered by the district court by
providing the excerpts himself. Ultimately, the court admitted
all the excerpts he submitted. This, paired with his failure to
object, raises his acts to the level of waiver. See Marder, 48
F.3d at 570-71. Indeed, Mitchell does not offer any argument as
to why we should not deem the portions not actually offered as
waived. We will not look beyond the waiver and ask whether the
court committed plain error.
3. The February 11, 1989 Tape
3. The February 11, 1989 Tape
The third tape discussed at trial was a February 11,
1989, recording of Mitchell's conversation with his partner
Gallant about whether the Club had insurance at the time of the
fire. At a hearing on the tape's admissibility prior to
Gallant's testimony, the court characterized it as "a really
transparent effort by the defendant, Mr. Mitchell, knowing that
he was accused of setting the arsons [sic], . . . [to say] all
sorts of things that would be very inadmissible and also things
of doubtful admissibility on the stand." (Day 9, p. 7).
Accordingly, the court ruled that the tape was inadmissible to
prove state of mind under Fed. R. Evid. 803(3), as the
conversation occurred after the fire. The defense objected on
the basis that the tape was in fact relevant to the defendant's
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state of mind regarding the alleged wire fraud, and the court
reconsidered its ruling. Accordingly, it requested a marked-up
transcript of the portions of the tape the defense sought to
admit on that basis, so it could "see what is at issue." (Day 9,
p. 141).
The next day, the court held that the first of the two
marked pages defendant submitted could be admitted; it was read
to the jury later that day, without a limiting instruction. The
court also allowed the second submitted page to be entered, but
as a prior inconsistent statement, and gave a limiting
instruction to the jury. Defense counsel did not object to the
court's rulings. For the same reasons discussed above, as the
only portions of the tape the defense actually submitted to the
court were entered, and there was no objection entered, we find
that the defense waived any appeal that the remainder of the tape
should have been admitted. See id.
As we find that the defendant has waived the right to
argue that these three tapes should have been admitted in their
totality, we need not consider his contentions that they were
admissible to show bias and inconsistent testimony or for
purposes of impeachment.
IV. THE JURY INSTRUCTIONS
IV. THE JURY INSTRUCTIONS
Mitchell challenges the district court's jury
instructions regarding the conspiracy charge. We review the
propriety of jury instructions for abuse of discretion. United
States v. Cassiere, 4 F.3d 1006, 1022 (1st Cir. 1993); United
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States v. Campusano, 947 F.2d 1, 5 (1st Cir. 1991). Accordingly,
"[w]e must look at the instructions in light of the evidence and
determine whether they 'fairly and adequately submit[] the issues
in the case to the jury.'" United States v. Picciandra, 788 F.2d
39, 46 (1st Cir.) (quoting United States v. Fishbach and Moore,
Inc., 750 F.2d 1183, 1195 (3d Cir. 1984), cert. denied, 470 U.S.
1029 and sub nom. Sargent Elec. Co. v. United States, 470 U.S.
1085)), cert. denied, 479 U.S. 847 (1986). For the reasons
stated below, we find the district court did not abuse its
discretion in making its instructions to the jury.
Count I of the indictment alleged that Mitchell
conspired with Wallace to violate the arson statute, see 18
U.S.C. 844(i), and the wire fraud statute, see 18 U.S.C.
1343.5 The charge was made in the conjunctive. The district
court, however, instructed the jury in the disjunctive:
The first count charges a conspiracy
to commit arson and a conspiracy to
commit wire fraud.
In order to prove the defendant is
guilty of Count 1, the government doesn't
have to prove that any demonstrated
conspiracy had both laws or a violation
of both laws as its object.
It's sufficient that the government
prove either the conspiracy to commit
arson or the conspiracy to commit wire
fraud.
But you have to unanimously agree.
That is essential. When you deliberate,
5 The remaining five counts charged Mitchell with arson, wire
fraud, and use of a fire to commit a felony. See 18 U.S.C.
844(i), 1343, & 844(h).
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all 12 of you have to agree on
everything. So it would be insufficient
if six of you thought there was a
conspiracy to commit arson and six of you
thought there was a conspiracy to commit
wire fraud. You have to unanimously
agree, or try to.
But if you agree unanimously that a
conspiracy to violate one of those
statutes has been proven beyond a
reasonable doubt, that's sufficient to
find the defendant guilty on Count 1.
(Day 12, pp. 159-60).6 Mitchell contends that the court's
instruction that finding him guilty of one of the two
conspiracies is sufficient impermissibly broadened the
allegations in Count I so as to create, in effect, two conspiracy
counts.7
In answering defendant's argument we take our lead from
the Supreme Court. In Griffin v. United States, 502 U.S. 46
(1991), the petitioner was charged with a conspiracy alleged to
have two objects, but was implicated in only one of those. The
court instructed the jury that it could return a guilty verdict
against petitioner if it found that she had participated in
either of the two objects, and the jury returned a general
verdict of guilty, without specifying on which count it relied.
Id. at 47-48. Faced with the question whether the verdict should
6 Mitchell specifically objected to the instruction at the close
of the charge.
7 In making this argument, Mitchell adds that the jury was left
to speculate as to whether Mitchell conspired to commit arson
with Wallace, to commit wire fraud with Wallace, and possibly
Gallant, or to commit both charges involving Gallant. Neither
the indictment nor the jury instructions mention Gallant,
however.
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be set aside because the evidence was insufficient for one of the
objects, the Court affirmed the verdict. In so doing, it relied
on a common law rule dating back to pre-revolutionary England
stating that "'[w]hen a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, . . . the
verdict stands if the evidence is sufficient with respect to any
one of the acts charged.'" Id. at 56-57 (quoting Turner v.
United States, 396 U.S. 398, 420 (1970)); see United States v.
Nieves-Burgos, 62 F.3d 431, 436 (1st Cir. 1995) (discussing
Griffin and the relevant case law).8 Accordingly, in United
States v. Lanoue, 71 F.3d 966 (1st Cir. 1995), where the district
court instructed the jury "that it could convict Lanoue of
conspiracy if it found he conspired to commit any one or more of
six object offenses" listed in the conspiracy count, id. at 979,
we held that, as there was sufficient evidence for one of the
8 There is an important exception to the rule discussed in
Griffin, however. "Griffin distinguishes cases . . . which
concern convictions that may have rested on a basis that was not
supported by the evidence, from those concerning convictions
possibly resting on an invalid ground as a result of an error of
law." Nieves-Burgos, 62 F.3d at 436; see Griffin, 502 U.S. at 58
(defining "legal error" as "a mistake about the law, as opposed
to a mistake concerning the weight or the factual import of the
evidence"). In the case of legal errors "'the proper rule to be
applied is that which requires a verdict to be set aside where
the verdict is supportable on one ground, but not on another, and
it is impossible to tell which ground the jury selected.'" Id.
at 52 (quoting Yates v. United States, 354 U.S. 298, 312 (1957),
overruled by Burks v. United States, 437 U.S. 1 (1978)).
However, appellant does not argue that the conviction rested on
an invalid ground, due to an error of law; rather, he focuses on
the sufficiency of the evidence of the charges, the very concern
at issue in Griffin. Therefore, we need not discuss this
exception here. See id. at 55 (noting that the exception has
generally been applied "to general-verdict convictions that may
have rested on an unconstitutional ground.").
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object offenses, we did not need to decide whether there was
sufficient evidence of a conspiracy to commit any or all of the
other object offenses, id. at 982-83 (holding that the fact that
there was sufficient evidence allowed a new trial despite
vacation of the conspiracy count on other grounds). Likewise, in
United States v. Nieves-Burgos, we applied Griffin to uphold the
jury verdict where there was sufficient evidence to find
defendant guilty for only one of three violations alleged in one
charge. 62 F.3d at 436.
Mitchell does not frame his argument in terms of
Griffin and its progeny, however. Rather, he seems to make two
intertwined arguments. First, he contends that Count I must be
read to charge him with only one offense, namely, agreeing to
burn the Building and using interstate wire facilities to
transfer money to Wallace. The instructions, he maintains,
expanded this offense into two, opening him up to the danger of
being convicted on facts different from those charged. A "court
may not substantially amend the indictment through its
instructions to the jury." United States v. Stewart Clinical
Lab., Inc., 652 F.2d 804, 807 (9th Cir. 1981) (reversing a
conviction where the indictment charged defendants with violating
one subsection of 42 U.S.C. 1396h(b)(2) but the government's
case proved a violation of another); see also United States v.
Trexler, 474 F.2d 369, 371 (5th Cir.) (stating that "[a]s a
general rule, the Government cannot broaden an indictment so as
to convict the defendant on different facts from those charged in
-24-
the indictment"), cert. denied, 412 U.S. 929 (1973). As a result
of this broadening of the indictment, he states, the Government
was allowed to argue a "grab bag" of theories and ask the jury to
guess as to which agreement Mitchell contemplated.
This argument is substantially answered by our
discussion of Griffin above. It is manifest that the district
court instruction that the jury could find Mitchell guilty on
Count I if the government proved either of the objects of the
conspiracy complies with Griffin. See Griffin, 502 U.S. at 56-
57. Indeed, an instruction that both objects of the multi-object
conspiracy had to be proved would go against the cited case law.
As the district court did not err in presenting the charge in
this manner, the fairness and integrity of the proceedings were
not affected, contrary to Mitchell's contention otherwise.
Similarly, Mitchell's argument that the instructions allowed the
jury to use conjecture as to his role is quickly dismissed, as
the instructions clearly limit the jury to the indictment,
requiring them to reach unanimity to find guilt on either of the
two objects of the conspiracy. Finally, to the extent that
Mitchell's position is that the instructions were inconsistent
with the Government's argument at trial, he is on shaky ground
given that from the start of the trial the Government approached
the conspiracy charge as a multiple object conspiracy, as
demonstrated by its opening argument (describing the arson as
"the first object of the conspiracy" and separately outlining the
alleged wire fraud (Day 3, pp. 55 - 58)) and proposed jury
-25-
instructions ("you need not . . . find that the defendant . . .
conspired to commit both arson and wire fraud.").
Second, although he never states it in so many words,
Mitchell seems to contend that there was insufficient evidence to
prove the wire fraud charge of the conspiracy, and thus the jury
verdict was against the weight of the evidence. As we have
established that "'a guilty verdict on an indictment charging
several acts in the conjunctive, . . . stands if the evidence is
sufficient with respect to any one of the acts charged,'"
Griffin, 502 U.S. at 56-57 (quoting Turner, 396 U.S. at 420), and
Mitchell does not contest the sufficiency of the evidence as to
the charge of conspiracy to commit arson,9 this position must
also fail.
V. THE MOTION FOR ACQUITTAL
V. THE MOTION FOR ACQUITTAL
Mitchell's next contention also centers on the evidence
-- or lack thereof -- regarding the alleged conspiracy to commit
9 Mitchell lists the elements the Government had to prove for
both objects of the conspiracy, but the only evidence he actually
questions, regarding the use of interstate wire facilities, goes
solely to the wire fraud claim.
In a footnote, Mitchell also argues that the court expanded
the conspiracy's scope "by allowing the Government to argue that
Mitchell caused Gallant to file false and fraudulent information
with the insurance company." (Appellant's Brief, p. 34 n.39).
He maintains that the Government was allowed to prove its case
against Mitchell by showing (1) that he was partners with
Gallant, and (2) that Gallant filed a claim for insurance
proceeds without Mitchell's assistance. As this argument also
goes solely to the sufficiency of the evidence regarding wire
fraud, and there is no challenge to the sufficiency of the
evidence on the conspiracy to commit arson charge, we need not
address it.
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wire fraud. 18 U.S.C. 1343.10 He posits that the district
court committed reversible error in denying his motion for
judgment of acquittal because there was no evidence that the
defendant filed, or caused to be filed, an insurance claim. As
he does not specify which count or counts he contends should be
reversed, we focus on Count I, the conspiracy count, as this
evidence clearly goes to the insurance fraud claim, not the arson
claim. We review Mitchell's "challenge to the evidentiary
sufficiency of the government's case by examining 'whether the
total evidence, taken in the light most amicable to the
prosecution, together with all reasonable inferences favorable to
it, would allow a rational factfinder to conclude beyond a
reasonable doubt that the defendant was guilty as charged.'"
United States v. Castro-Lara, 970 F.2d 976, 979 (1st Cir. 1992)
(upholding district court's denial of motion for judgment of
acquittal), cert. denied sub nom. Sarraff v. United States, 508
U.S. 962 (1993).
10 That section states, in pertinent part:
Whoever, having devised or intending
to devise any scheme or artifice to
defraud, or for obtaining money or
property by means of false or fraudulent
pretenses, representations, or promises,
transmits or causes to be transmitted by
means of wire, radio or television
communication interstate or foreign
commerce, any writings, signs, signals,
pictures or sounds for the purpose of
executing such scheme or artifice, shall
be fined under this title or imprisoned
not more than five years, or both.
18 U.S.C. 1343.
-27-
Essentially, Mitchell argues the following. To prove
wire fraud the Government had to prove: "1) a scheme to defraud
by means of false pretenses, 2) the defendant's knowing and
willful participation in the scheme with the intent to defraud,
and 3) the use of interstate wire communications in furtherance
of the scheme." Cassiere, 4 F.3d at 1011. The Government failed
to prove the first prong of the test because it did not show that
Mitchell made any false representations to the insurance
carriers, and so there was no false pretense. Instead, Gallant
was responsible for preparing and presenting the insurance claim
and proof of loss to the insurers. The prosecution did not show
Mitchell knew or reasonably foresaw the filing of the claims as
the consequence of his conduct. Since the Government's theory
was that Mitchell hired Wallace to burn the Building because it
had been closed by the city and he could no longer operate it, it
was essential to the Government's claim to show that Mitchell
knew the Club was insured and made a claim for the proceeds, or
caused another to do so. However, Gallant testified that he made
the claim without Mitchell's assistance, and that he actually had
a dispute with Mitchell as to whether a claim should be
processed. The only evidence that Mitchell filed an insurance
claim was a letter from an Edward Garguilo to David Collins, the
insurance broker, but there was no evidence connecting Mitchell
to this letter, and no evidence showing that the letter formed
the basis for a request for payment, and so it cannot form the
basisfor anargument thatMitchell attemptedto consummatethe fraud.
-28-
Even if we accept all of his contentions as true, at
most they establish that there was insufficient evidence to find
Mitchell guilty of the wire fraud object of the conspiracy
charge. As we have noted, "'if a jury returns a guilty verdict
on an indictment charging several acts in the conjunctive,'" as
the arson and wire fraud charges were made here, "'the verdict
stands if the evidence is sufficient with respect to any one of
the acts charged.'" Griffin, 502 U.S. at 56-57 (quoting Turner,
396 U.S. at 420); see, e.g., Lanoue, 71 F.3d at 982-83; Nieves-
Burgos, 62 F.3d at 436. As Mitchell does not argue that there
was insufficient evidence for the arson charge, we deem that he
has waived the opportunity to do so. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir.) (applying "the settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."), cert. denied, 494 U.S. 1082 (1990). Thus the
court did not err in refusing to grant the motion to acquit.11
11 Mitchell argues that the court erred in allowing the letter
sent by Garguilo in evidence under the "business records"
exception to the hearsay rule, see Fed. R. Evid. 803(6), because
Garguilo did not testify regarding the authenticity of the letter
or its accuracy, and there was no testimony regarding what
happened to the letter after Collins received it. However,
Sharon Motyl, a claims technician for Insurance Innovators,
testified that the claims files were maintained in the ordinary
course of business and included documents received from a third
party. She specifically stated that the Garguilo letter was
maintained as part of the pertinent claim file in the ordinary
course of business. Given this, we doubt that the district court
abused its discretion in admitting the letter. See United States
v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (noting that review
of admission of evidence under the business records exception is
for abuse of discretion). Even if it had, its error would not be
prejudicial, as the letter was not relevant to the arson object
-29-
VI. MITCHELL'S SENTENCE
VI. MITCHELL'S SENTENCE
Mitchell's final contention on appeal is that the
district court erred by enhancing his Basic Offense Level12
("B.O.L.") by four points: two points for his role in the
offense as an organizer, leader, manager or supervisor, see
U.S.S.G. 3B1.1(c), and two points for obstruction of justice,
see U.S.S.G. 3C1.1. After noting our standard of review, we
address each of these enhancements in turn. For the reasons
given below, we affirm the sentence given by the district court.
A. Standard of Review
A. Standard of Review
"When we review a district court's application of a
sentencing guideline, we utilize a bifurcated process. First, we
review the guideline's legal meaning and scope de novo. Next, we
review the court's factfinding for clear error, giving due
deference to the court's application of the guidelines to the
facts." United States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994)
(citations omitted). "'Due deference' in this context means that,
absent mistake of law, we will review the sentencing court's fact
based application of the guidelines only for clear error.'"
United States v. McDonough, 959 F.2d 1137, 1141 (1st Cir. 1992)
of the conspiracy count.
12 As the sentencing guidelines in effect at the time of the
sentencing were more onerous than those in effect at the time of
the offense (Oct. 15, 1988), the district court applied the
latter set of guidelines. The court found a base offense level
of 6, see U.S.S.G. 2K1.4(a), and enhanced it 18 levels for
knowing creation of a substantial risk of death or serious bodily
injury, see U.S.S.G. 2K1.4(b)(1). With the disputed
enhancements, the total adjusted offense level was 28.
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(quotingUnited Statesv. Mart nez,922F.2d 914,925 (1stCir. 1991)).
B. Manager or Supervisor of a Criminal Activity
B. Manager or Supervisor of a Criminal Activity
The district court enhanced Mitchell's B.O.L. because
it found he acted as Wallace's organizer in committing the crime.
See U.S.S.G. 3B1.1(c).13 In order to apply section 3B1.1(c),
a court must first determine that there were at least two
participants in the crime. See United States v. Akitoye, 923
F.2d 221, 227 (1st Cir. 1991). Here, the two participants were
Wallace and Mitchell himself. See United States v. Morillo, 8
F.3d 864, 872 n.13 (1st Cir. 1993) ("The defendant himself may
be counted in determining the overall number of participants.").
"The second requirement for the application of section
3B1.1(c) is that the defendant exercised control over, or was
otherwise responsible for organizing the activities of, at least
one other individual in committing the crime." Akitoye, 923 F.2d
at 227. Here, the district court found at sentencing that
Mitchell hired Wallace to burn the Club, as he was concerned that
the City of Boston would not let the Club reopen, and he wanted
to collect the insurance proceeds. It also found that Mitchell
called the Club the night of the fire and, in effect, instructed
Wallace to start the fire. Mitchell challenges these factual
13 At the time of the offense that section stated:
If the defendant was an organizer,
leader, manager, or supervisor in any
criminal activity [involving four or
fewer participants], increase by 2
levels.
U.S.S.G. 3B1.1(c) (1987).
-31-
findings. He notes that Wallace testified that, when Mitchell
called him at the Club on the night of the fire, he asked "are
you going to do it?" The inference, Mitchell argues, is that
Wallace was a free agent. Indeed, he maintains, their contact
was almost casual, and it was up to Wallace to burn the Club or
not. His argument is of no avail. There was evidence at trial
that Mitchell initiated discussion of the arson, recruited
Wallace to carry it out, told him specifically how to do it, and
promised to pay him. Given the record, we find no clear error in
the district court's factual findings. Compare United States v.
Balogun, 989 F.2d 20, 23 (1st Cir. 1993) (finding no clear error
in trial court's application of 3B1.1(c) where the facts showed
defendant initiated the conspiracy, received more money than his
co-conspirator, paid his co-conspirator for his cooperation in
the scheme, and used cars fraudulently registered to the co-
conspirator to stage accidents) with United States v. Castellone,
985 F.2d 21, 26 (1st Cir. 1993) (refusing to uphold application
of 3B1.1(c) where the district court did not find defendant
controlled anyone else's movements) and United States v. Fuller,
897 F.2d 1217, 1221 (1st Cir. 1990) (holding that "in the absence
of any evidence that [defendant] exercised control over [other]
persons or was otherwise responsible for organizing them in the
commission of the offense, the mere fact that [defendant] had
dealt with a large quantity of marijuana does not support a
finding that he was an organizer, leader, supervisor, or manager"
in conspiracy to distribute marijuana).
-32-
Mitchell seeks to rely on the Second Circuit's decision
in United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993),
in arguing that section 3B1.1(a) does not apply here. In that
case, the court found that a drug dealer who asked his wife to
give a package to buyers was not an organizer under section
3B1.1, since it was an isolated occurrence. Mitchell relies on
McGregor to argue that the isolated request for assistance he
made to Wallace did not rise to the level the Guideline requires,
noting that there was no evidence that they had acted in concert
for any other criminal activity. His reliance is misplaced,
however. The dealer in McGregor bought and resold at least four
ounces of cocaine a week for over a year, and involved his wife
on only one occasion. His sentence reflected all his prior drug
dealing activity. In this context, the court held that "against
the whole background of the case" McGregor's use of his wife did
not rise to the level of an organizer, leader, manager or
supervisor. Id. at 1138 (noting that "[i]f McGregor had been
charged with drug activity on any other day during the preceding
year, he would have received a sentence without enhancement.").
In the present case, the district court found that Mitchell hired
Wallace to burn the Club and instructed him how and when to do
it. Clearly, these facts are distinguishable from the husband in
McGregor who asks his wife to give buyers a package since he
would not be home to do it himself. As the McGregor court noted,
"[i]n the usual case, obtaining the services of a participant
would make one a supervisor subject to an enhanced sentence."
-33-
Id. This is just such a usual case.14
C. Obstruction of Justice
C. Obstruction of Justice
The district court concluded that Mitchell obstructed
justice through his use of his tape recordings to attempt to
cover up the conspiracy to commit arson, finding that they were
made in an effort to create a false record, and were "intended to
mislead authorities investigating this case and to deceive the
jury, indeed, a judge, should the matter develop to that point."
(Sentencing hearing, at 45). The court accordingly increased the
B.O.L. by two additional points. See U.S.S.G. 3C1.1.15 In
his brief, Mitchell does not contest the district court's factual
findings. Instead, he makes three arguments designed to show
that his use of the tapes did not rise to the level of
obstruction required to apply this section. We address each in
turn.
First, Mitchell points out that the investigation was
not obstructed in any manner, as the investigators did not know
14 Mitchell's point that he did not conduct other criminal
activity in concert with Wallace is irrelevant: when weighing
application of section 3B1.1(a), the sentencing court looks to
the criminal activity charged. See, e.g., Balogun, 989 F.2d at
23.
15 At the time of the offense that section stated:
If the defendant willfully impeded or
obstructed, or attempted to impede or
obstruct the administration of justice
during the investigation or prosecution
of the instant offense, increase the
offense level . . . by 2 levels.
U.S.S.G. 3C1.1 (1987).
-34-
of the tapes' existence until after his arrest. They were not
misled by them in any way. See United States v. Manning, 955
F.2d 770 (1st Cir. 1992) (finding that giving false name to
arresting officers did not amount to obstruction of justice under
3C1.1, as it did not mislead them). This argument is a red
herring, however: the guideline itself provides that it applies
if a defendant attempts to obstruct the administration of justice
not only during the investigation, but also during the
prosecution of an offense. Thus, whether or not the
investigation was impacted by the tapes is irrelevant, since
Mitchell used them at trial.
Mitchell's second argument is that his use of the tapes
did not thwart the administration of justice, since there was no
intimidation of the witnesses, and no attempt to prevent them
from testifying at trial. This, too, is a red herring, since
intimidating or influencing a witness is not required in order to
find obstruction of justice under section 3C1.1. Of course, it
is one method that the commentary to that section notes may
provide a basis for finding a defendant obstructed justice, see
U.S.S.G. 3C1.1 comment. (n. 1(d)), but the commentary's list
is, by its terms, not exclusive.
Finally, Mitchell argues that his use of the tapes does
not qualify for an enhancement under section 3C1.1 because he did
not use them as an affirmative weapon, since they were only used
for impeachment purposes. The trial court's decision, he
maintains, seeks to punish passive, defensive conduct designed to
-35-
protect the cross-examination process. However, as the
Government points out, Mitchell's use of the tapes was not
passive. He used portions of the February 1 and February 11
tapes to demonstrate his state of mind, and used the February 7
tape to cross-examine Wallace.
Indeed, Mitchell does not challenge the district
court's factual finding that the tapes were made in an attempt to
create a false record, and we find no clear error in the court's
finding. Given that, the court's application of section 3C1.1
was clearly proper. As the current commentary to that section
notes, "producing or attempting to produce a false . . . record
during a . . . judicial proceeding" rises to the level of
obstructing justice. U.S.S.G. 3C1.1 comment. (n. 3(c)) (1995);
see U.S.S.G. 3C1.1 comment. (n. 1(c)) (1987) ("producing or
attempting to produce an altered, forced, or counterfeit . . .
record during a . . . trial" may be a basis for applying
3C1.1); see, e.g., United States v. Rojo-Alvarez, 944 F.2d 959,
969 (1st Cir. 1991) (finding that submission of altered passport
as verification of defendant's identity met obstruction of
justice standard); cf. United States v. Ruiz-Batista, 956 F.2d
351, 353-54 (1st Cir.) (upholding use of sentencing guideline
commentary added after date of offense where commentary clarified
what conduct could be considered in determining defendant's
role), cert. denied, 506 U.S. 834 (1992). As Mitchell produced a
falsified record at trial, we uphold the district court's
enhancement of his sentence for obstruction of justice.
-36-
VII. CONCLUSION
VII. CONCLUSION
For the reasons stated above, the decision of the
district court is affirmed.
affirmed
-37-