United States v. McKeeve

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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