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USCA1 Opinion

United States Court of Appeals


For the First Circuit
____________________

Nos. 96-1916

UNITED STATES OF AMERICA,

Appellee,

v.

FRED AWON,

Defendant, Appellant.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]


___________________

____________________

Before

Stahl, Circuit Judge,


_____________
Coffin and Aldrich, Senior Circuit Judges.
_____________________

____________________

Robert A. George for appellant.


________________
James F. Lang,
_____________
Donald K. Stern,
_________________

Assistant United States Attorney,


United

States Attorney,

appellee.

____________________

February 2, 1998
___________________

was

on

with whom
brief

for

COFFIN, Senior Circuit Judge.


_____________________

his conviction for arson, use of

Defendant Fred

Awon appeals

a fire to commit a felony,

and

mail fraud.

He asserts that

admitting

prior

witnesses;

(2)

refusing

consistent

limiting

statements

of

cross-examination

erred in:

two

of

(1)

government

a witness;

(3)

to grant a mistrial after improper cross-examination of

defendant;

and (4)

sentencing.

fault

the district court

imposing too

high a

base offense

level at

Most of this opinion deals with the first issue.

the government

admitting the

for pressing admission

evidence, but

have affected the verdict.

conclude that

We

and the

court for

the error

could not

We affirm.

I. BACKGROUND

Defendant

the

arson of

was convicted by

a building

located

a jury for

on Ames

twice orchestrating

Street in

Brockton,

Massachusetts

and two

brothers, Jorge

The Ames

vacant

("the Ames building")

and Joaquim Neves,

building, owned by defendant and

retail

space

residential apartments

fires.

by hiring James

on

the

first

on the second

to set

St. Louis,

the fires.1

his father, contained

floor

and

two

occupied

floor at the time

of both

The first fire caused minimal damage; the second required

the demolition of the building and two adjacent buildings.


____________________

St.

Louis and defendant

were tried together,

but St.

Louis, indicted for setting both fires, was convicted for setting
the second fire only.
fire, was

never

Jorge Neves, who was involved in the first

charged,

but

Joaquim

was

indicted

on

four

separate counts and,

before trial, entered into a plea agreement

with

whereby he

the government

pled guilty

to arson

fraud counts stemming from his role in the second fire.

-2-

and mail

the

We review the

evidence presented at trial

government.

Because

sufficiency

defendant

of the evidence,

without favor to either party

errors.

does

we describe the

by defendant and

not

challenge

the

relevant evidence

to provide context for the claimed

See United States v. Morla-Trinidad,


___ _____________
______________

100 F.3d 1, 2 (1st

Cir. 1996).

A.

The Neves Brothers


__________________

Jorge testified that,

in mid-1994, St. Louis

recruited him

to help set fire to the building, stating that they would receive

money and

a car as payment from defendant,

dealership.

Jorge admitted to pouring

the first floor of the

who owned a used car

and lighting gasoline on

building, at the direction of

St. Louis.

Firefighters arrived shortly thereafter, preventing damage to the

building;

as

result,

Jorge

never

received

payment

from

defendant.

Jorge's testimony

not to

prosecute him in

that for the

material

also revealed that the

exchange for his cooperation

past six months he

witness and

government agreed

wanted to

had been held

be

in court,

in custody as

released, and

that he

had

several criminal cases pending against him at the time of trial.

Joaquim testified that,

in the summer

of 1994, he

learned

from

St. Louis' brother

who would

that defendant was

burn down the Ames building.

looking for someone

Joaquim reported that he

agreed to set the fire in exchange for $5,000, and then solicited

St. Louis' assistance; but, an illegal immigrant, he was detained

by the United States Immigration and Naturalization Service (INS)

-3-

before he could act.

After his release on bail, he and St. Louis

told defendant they

he witnessed

at $2,900.

would set the fire.

Joaquim testified that

defendant agree to pay St.

Louis with a car valued

Joaquim admitted pouring gas on the first and second

floors of the

Ames building, which

was then

lit by St.

Louis,

resulting in an explosion and fire that destroyed the building.

Joaquim also testified that, the

St.

Louis

paperwork

Louis

went to

defendant's

for the car.

to get the

day after the fire, he and

shop,

where St.

Louis

signed

The following day, Joaquim went with St.

car from defendant,

and a few

days later, he

personally received $2,100 in cash from defendant.

Joaquim

reported that, in exchange

guilty plea, the government would

request that the court

downward from his guidelines sentence.

he feared impending

for his testimony and a

deportation, and

depart

He also acknowledged that

that he

had an

extensive

criminal history.

Defendant

commit arson.

denied soliciting either of the Neves brothers to

He explained

him sometime prior

provide him

that Joaquim had become

to the fire because defendant

with bail

from INS custody,

Joaquim off his car lot.

On

had refused to

twice ordered

the first occasion, about two weeks

before the second fire, Joaquim

buy an

and had

angry with

told defendant that he wanted to

expensive car, and became angry when defendant questioned

him about

where he would

get the

money; the second

time, when

defendant asked Joaquim whether he had been involved in the fire,

Joaquim responded in the negative,

-4-

but smirked suspiciously.

On

cross-examination,

defendant stated

that he

did

police when they interviewed him before trial about

not tell

the

any existing

hostility between himself and Joaquim.

St.

Louis'

brother

denied

having any

conversation

with

defendant or Joaquim about burning defendant's property.

B.

The Car Transfer


________________

In addition to

Louis

with

car,

Joaquim's testimony that defendant

the

government

introduced

into

paid St.

evidence

business

records

belonging

to the

defendant's

These indicate that defendant sold a

one day after

months

the second fire.

earlier,

the company

auto

company.

car to St. Louis for $2,000

They also indicate that,

had

purchased that

same

a few

car for

$2,220.

Defendant

legitimate

testified that

one,

for which

explained that he sold

problems and had

price of

about

he

the

sale

received

to

St.

$2,000

at a loss because the car

Louis

was

in cash.

He

had mechanical

failed to sell for a few months at the intended

$3,500.

Defendant said that

the source of

the $2,000, and

he questioned

that St.

St. Louis

Louis refused to

answer him.2

Joaquim's mother

custody, she gave

testified that,

when her

St. Louis $1,000 toward the

son was in

INS

$3,000 needed for

his

bail and,

the following

day,

Joaquim was

released.

The

defense argued that this evidence showed, inferentially, that St.

Louis

had

supplied the

remaining

$2,000,

which,

as soon

as

____________________

St. Louis did not testify at trial.

-5-

Joaquim repaid

it, St. Louis used to buy the car from defendant.

On cross-examination

that she did

by the government, Joaquim's

not know

whether St.

Louis put up

mother stated

any money

for

Joaquim's release on bail from INS custody.

C.

Motive
______

The government

introduced evidence showing

that the

were losing money on the Ames buildings and, at the time

fires, the property was insured

losses attributable to business

up to

After the

negotiated

After the

an

insurance

second fire,

$91,176, and

of both

for loss to the structure of

to $80,000, and

$12,000.

Awons

interruption of

first fire, defendant and

settlement in

they negotiated

then used this money

the

up

amount

a settlement

his father

of $4,171.

totalling

to pay their mortgage

on the

property.

Defendant's parents testified that all of the money invested

in the Ames

building belonged

responsibility

for

building, and that

apartments.

financial

expenditures

son had

related

to

fluently

and

only because they

needed

They

their son's

the

income from the

to showing

did not

assistance

described their

as limited

son's

the

to

speak English

translate the

involvement

apartments to

with the

prospective

tenants and responding on occasion to maintenance requests.

also stated

no

They explained that their son's name was included on

and mortgage

property

that their

he had never received rental

the deed

documents.

to them,

that they,

not their son,

money after the fires.

-6-

received the

They

settlement

Defendant

testified

that,

building, he did not put up

mortgage

payments, or

examination,

while a

of

the Ames

any of the purchase money, make

pay taxes

however, the

co-owner

on

government

the property.

On

any

cross-

introduced evidence

that

defendant had made at least one mortgage payment on the property.

Defendant then stated that he

other

mortgage payments.

listed on

He

the settlement check

could not remember having made any

also admitted

that his

from the insurance

name was

company, but

maintained that his father received all the proceeds.

II. ADMISSION OF THE NEVES' OUT-OF-COURT STATEMENTS

The first and only difficult

is the admission at trial

Neves brothers.

issue we consider in this case

of out-of-court statements made by the

Each brother made a written

and oral statement

to police months before trial, implicating himself, St. Louis and

defendant in the respective arsons.

otherwise inadmissible as

an

exception

for

These statements, which were

hearsay, were admitted at

prior consistent

review admission

of hearsay

United States v.
_____________

Paulino, 13 F.3d 20,


_______

where, as here,

statements.

evidence for

abuse of

trial under

We generally

discretion.

25 (1st Cir. 1994).

But

the issue concerns a factual determination, such

as when the statement was made relative to a

suggested motive to

fabricate, we review for clear error.

See United States v. Vest,


___ _____________
____

842 F.2d 1319, 1329 (1st Cir. 1988).

We may affirm the district

court's admission

of hearsay

testimony on

any ground

apparent

v. Alzanki,
_______

54 F.3d

-7-

from the

appellate record.

United States
_____________

994, 1008 (1st Cir. 1995).

A.

Rule 801(d)(1)(B)
_________________

The

district court allowed

statements under

Fed. R. Evid.

use of the

Neves' out-of-court

801(d)(1)(B).

Under

prior consistent statements that would otherwise be

hearsay evidence

may be

admitted into evidence

that rule,

inadmissible

when:

(1) the

declarant testifies at trial and is subject to cross-examination;

(2) the challenged statements and trial testimony are consistent;

and (3) the

that the

challenged statements are offered to

declarant recently fabricated

declarant became subject

U.S. 150, 158

or that

the

to some improper influence or motive to

falsify after making the statements.

513

his story,

rebut a charge

See Tome v. United States,


___ ____
_____________

(1995) (holding that

consistent out-of-court

statements

may

fabrication

or

statements

be

admitted

improper

pre-date

the

to

rebut

influence or

charged

charge

motive

of

only

fabrication,

recent

when those

influence,

or

motive3).

The issue

initially

of the

on

Neves' pre-trial

cross-examination.

In

cooperation was

response

raised

to

defense

____________________

In Tome, the prosecution


____

introduced a child's

court statements

concerning sexual abuse by her

primary custody,

made while the

mother.

The

court

their admission

possessed the same


time she made
in court.

but the Supreme


was improper

motive -- to live

The trial

Court reversed,

because the

with her mother --

the out-of-court statements as

513 U.S. at 150-55, 166.

with her

the child's testimony

desire to live with her mother.

admitted the statements,

reasoning that

father, who had

child was on vacation

defense argued at trial that

was motivated by her

out-of-

child

at the

when she testified

-8-

questions,

Jorge

testified

implicating himself,

that

he

defendant, and St.

first

made

Louis in the

after the police said they knew he was involved and

to charge him if he

cross-examination

cooperated.

that

he

statements

fire only

promised not

Similarly, Joaquim explained on

made

out-of-court

statements

to

investigators only after they said they knew he had set the fire,

had

lengthy

criminal

record,

and

was

being

sought

for

deportation,

and

then

promised

that

they

would

bring

any

allowed

the

cooperation to the prosecutor's attention.

On

redirect

government

to

each

introduce

statements under

introduced

of

brother,

their

the

were admitted

argued,

court

admissible

defense,

punishment

and

the

to rebut

the motive

by

that

to

the

The defense

and

written

oral statements

government

as evidence.

agreed,

namely, incentive

for arson.

The

testimony of

written statements

court

out-of-court oral

Rule 801(d)(1)(B).

through

the

these

The

agent; the

government

statements

fabricate presented

brothers

to

were

by the

reduce

objected, arguing

were

their

that the

alleged motive to fabricate pre-dated these statements, rendering

Rule 801(d)(1)(B)

unavailable.

Defendant

renews this objection

on appeal.

Our review persuades us that

the defendant is correct.

The

motive to fabricate alleged by the defense -- desire for leniency

-- was the

as at

same when the Neves brothers first

the time

attempts

to

of

justify

their testimony

use

of

the

-9-

spoke with police

at trial.

out-of-court

The

government

statements

by

pointing out

that the

defense ascribed

influences to the Neves that

statements were

made.

additional motives

and

did not exist when the out-of-court

These

were, as

to Jorge,

that (1)

he

testified to obtain release from a six-week long incarceration as

a material witness; (2)

he hoped to receive in exchange

testimony some dispensation

pending against

trial

him; (3)

preparation with

in a different -- and

his testimony was

the agent

for his

new -- matter

influenced by

who interviewed

him.

pre-

As to

Joaquim, these were (1) anticipation of a lesser sentence under a

plea agreement that promised a

departure

government request for a downward

of his sentence following his

(2) trial preparatory sessions with

true

testimony at trial, and

the government.

While it is

that these allegations post-dated the out-of-court oral and

written statements, the overarching motive alleged by the defense

always was hope

of leniency,

and therefore,

the "new"

motives

amount to no more than smaller subsets of the larger theme.

instance,

the assertion that the prosecution directed the Neves'

testimony assumes that

the brothers

government

namely,

charge.

For

requested,

had a reason

hope of

to do as

reduced

the

sentence or

Likewise, Jorge's desire to obtain release

from custody

as a material witness was just a specific incarnation of his more

general desire

not to be jailed for his

See United States v.


___ ______________

1996)

(even where

fabricate

the

Albers, 93 F.3d
______

circumstances

have changed somewhat

entered after

the statement

role in the first fire.

1469, 1482-84

(10th Cir.

underlying

motive

-- a formal

was made,

-10-

to

plea agreement was

but before

testimony at

trial -- prior

consistent statements remain inadmissible

if the

motive remains essentially the same).

Because all the

grew from

the same

defense allegations of motive

foundation -- a

to fabricate

pursuit of leniency

-- the

brothers' out-of-court statements were erroneously admitted under

Rule 801(d)(1)(B).

B.

The Doctrine of Completeness


____________________________

The

inadmissibility

801(d)(1)(B) does

not end

whether the statements

ground apparent from

1008.

of

these

statements

our

discussion, as

we must

could be properly admitted

the appellate record.

under

Rule

explore

on some other

Alzanki,
_______

54 F.3d at

The government argues that Joaquim's prior statements4 are

admissible

codified

under the doctrine

in

Fed.

R.

Evid.

of completeness.

This doctrine,

106,

an

inadmissible recorded statement may

where one side has made

and full

FBI, 880
___

that

otherwise

be introduced into

evidence

a partial disclosure of the information,

disclosure would avoid

See Irons v.
___ _____

holds

unfairness to the

F.2d 1446, 1453

other party.

(1st Cir. 1989);

United
______

States v. Range, 94 F.3d 614, 620 (11th Cir. 1996).


______
_____

While defense counsel cross-examined Joaquim concerning

the

substance of his

written interview statement, and

some inconsistencies between that

did highlight

statement and Joaquim's

trial

____________________

The

statements, but

government makes

no

such

our analysis considers

claim

to

Jorge's

the doctrine as

to both

defendants, as we may affirm on any legal ground.

-11-

as

testimony,5 there is

made no

no evidence that -- and

allegation that --

information

created

misimpression.

argument is

To

the introduction of these

any

the

unfairness

contrary,

that the written

court testimony.

the admission of

statements

are revealed

to

ensure

distortion created

government's

between

through

fairness

for

primary

Neves' in-

completeness does not

otherwise inadmissible evidence

inconsistencies

pieces of

potential

statements bolster the

The doctrine of

few

operates

or

the

one party has referred to a portion of

the government has

permit

simply because

such evidence, or because

out-of-court

and

in-court

cross-examination; rather,

where

misunderstanding

it

or

by the other party can only be averted by the

introduction of the full text of the out-of-court statement.

See
___

United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997).
_____________
_____

the inconsistencies revealed were

basic

minute insofar as

Here,

defendant's

involvement is concerned, and the Neves clearly identified

defendant at trial as the mastermind of the Ames building arsons.

The doctrine

of completeness therefore does not

provide a basis

for introduction of the earlier statements.

C.

Harmless Error
______________

The government argues

statements

that, even if the introduction of the

constitutes error,

the

error

was

harmless.

The

erroneous admission of hearsay requires reversal unless the error


____________________

Among other minor inconsistencies, the defense

out Joaquim's
fire by

earlier claims

defendant directly

that he was
rather than

solicited to
by St. Louis'

brought

set the

brother,

that he received $2,500 rather

than $2,100 in payment, and that,

though both were together, he and not St. Louis lit the gasoline.

-12-

is shown

to be harmless beyond

a reasonable doubt.

See United
___ ______

States v. Lombard, 72 F.3d 170, 187 (1st Cir. 1995).


______
_______

By definition, prior consistent statements do not consist of

new

substantive

information.

Their

impact

comes

corroborating other, perhaps less compelling, evidence.

from

The form

in which the material

its weight

if legitimacy,

attached to

F.2d

9,

prior

224,

The question

corroboration resulting

statements

defendant's detriment.

236

(2d

erroneously

Cir.

See
___

from

(finding

Internal

Revenue

detailed

"condensation of

Service

affect

thereby

Siegel, 717
______

we must

answer is

introduction of

influenced

out-of-court

official

the

the

United States
_____________

1978)

admitted

weak, is

See United States v.


___ ______________

Cir. 1983).

consistent

the jury also may

possibly otherwise

the statements.

19 (2d

whether

is presented to

jury

to

v. Quinto, 582
______

such influence

written

the government's

and

the

F.2d

where

the

was

an

statement

document,

the

lengthy,

whole case

against

defendant").

As

with

the

typical

admission

of

prior

consistent

statements,

the introduction of

not themselves supply

the testimony

tying

the out-of-court statements did

any new information to the

adduced at

trial was

defendant to the crime.

themselves,

St. Louis

and

examination,

they

revealed

jury.

Rather,

complete and convincing

in

Not only did the Neves implicate

defendant at

having

trial,

reported

but on

defendant's

solicitation of them to authorities months before trial.

-13-

cross-

Nonetheless,

both

the

oral

unquestionably had some effect.

about the oral

have believed them.

they were reduced

of

Similarly, the written

to print and reviewable

written

government witnesses in

confessions

statements

The government agent's testimony

credibility to the

only because a government agent

added weight to the in-court

jury room.")

written

confessions lent a measure of

Neves' stories, if

introduction

and

testimony.

consistent

was shown to

statements, because

during deliberations,

See id. (describing the


___ ___

statements

as

effect accompan[ying] the jury

But, unlike the statements in

"[t]he

into the

Quinto, the written


______

were not detailed, official documents from an agency

denoting authority.

over

one page,

statements

made

grammatical

and

Rather, they were fairly compact -- one just

the other,

by

the

spelling

just over

witnesses

errors.

two pages

-- handwritten

themselves,

While

replete

revealing

with

slight

inconsistencies, the out-of-court statements essentially amounted

to an abbreviation

of the Neves' in-court

defendant.6

This

in-court

circumstantial

evidence

of

testimony,

motive

and

testimony implicating

supported

car

by

the

transfer,

was

unwavering and unambiguous.

____________________

On direct,

from Jorge
defense

the prosecution failed to

implicating defendant, but


several

involvement,

times

led

Jorge

elicit testimony

on cross-examination, the
to

affirm

defendant's

which testimony was confirmed on redirect.

Because

Jorge's

testimony

on direct

alone

did not

clearly implicate

defendant and did not reveal the prior statements to authorities,


our analysis would

be different if we had only this testimony to

consider.

-14-

The exculpatory

and largely

evidence presented by defendant was minimal

unsupported.

For

example, it

seems unlikely

that

defendant would sell a car at a loss, and $1,500 less than asking

price, without

first attempting to

sell it at a

price slightly

reduced

from $3,500.

In

addition, the

shortly after the second fire, was

had an undeniable

the

jury

timing

insurance proceeds.

his

claim that

sale,

highly suspect, and defendant

economic motive to burn the

believed

of the

his

property, even if

parents

received

the

Nor does defendant's explanation of how

St.

Louis came into $2,000 seem plausible; first, it assumes that St.

Louis had $2,000

to lend Joaquim for bail

mother testified

that she

contributed toward

had no knowledge

Joaquim's bail.

and second, Joaquim's

that St.

Louis had

Similarly, while

defendant

and his parents claimed that he had no financial interest

Ames building,

the circumstantial

evidence presented

in the

indicated

otherwise; for instance, his name was listed on all Ames building

legal documents, including the settlement check, and, despite his

initial testimony to the contrary,

he made at least one mortgage

payment on the property.

would have

testify

Finally, defendant's claim that Joaquim

sufficient animosity

against

him

seems

toward him to

unlikely,

and

set the

is

fire or

unsupported

evidence other than defendant's own

testimony.

against defendant was plentiful and

in no way illuminated by the

out-of-court

statements, we

doubt

the

that

statements

defendant's detriment.

are persuaded

did

not

beyond a

influence

We emphasize that it is

-15-

As the

by

the

evidence

reasonable

jury

to

the strength of

the evidence properly introduced

at trial implicating

defendant

that renders this serious error harmless.

That the statements

constituted unnecessary emphasis

makes

the government's efforts to introduce them particularly difficult

for

us

to understand.

Where

statements and the evidence is so

the

the law

so

clearly

bars such

weighty against the defendant,

government's arguments for their introduction strike us as a

serious and careless abuse of

notwithstanding, the

the rules of evidence.

evidence compels us to find

was a legally harmless one.

This

fact

that the error

III. ALLEGED ERRORS DURING CROSS-EXAMINATION AND SENTENCING

Defendant argues that

his

the district court erred

in limiting

cross-examination of Joaquim, that the prosecutor improperly

implied,

without basis,

defense, and

that he

finally, that

had

funded his

the court erred

defendant's base offense level for

codefendant's

in calculating

two arson counts.

the

We examine

each allegation in turn.

Defendant contends that

the trial court violated

Amendment right to confront adverse witnesses when it

allow him to question Joaquim

his Sixth

refused to

about his history of drug dealing.

trial court's restriction of cross-examination may be reversed

only for abuse of

36 F.3d 212, 217

discretion.

United States v.
_____________

(1st Cir. 1994).

To show

Ovalle-Marquez,
______________

abuse, the defendant

must

demonstrate

that

the restriction

left

the

jury without

sufficient information to make a discriminating assessment of the

-16-

witness'

bias or

motives.

United States
_____________

v. Twomey,
______

806 F.2d

1136, 1140 (1st Cir. 1986).

Defendant

maintains that

the

testimony

admitted because it supports the defense theory

should have

been

that Joaquim set

fire

to the

defendant,

Ames building

past

his own

informant

Administration

("DEA"),

alternatively,

as revenge

already

on

for

from reporting

because

he

reported him.

During a

asked for

some offer

of proof from

reason to

believe that defendant

offered

evidence

that,

initiative to

the

Drug

his

Enforcement

drug dealing,

believed

defendant

sidebar discussion,

defendant that

would report

before the

second

dissuade

had

the court

Joaquim had

him.

fire,

or,

Defendant

Joaquim told

defendant that he would soon be getting a great deal of money and

that Joaquim became

its source.

been

hostile when defendant questioned

Joaquim,

however stated on

unaware that defendant

offered no

evidence in

was a DEA

rebuttal.

him about

voir dire that

he had

informant, and defendant

Concluding that

defendant's

offered evidence was too tenuous, the court prohibited the cross-

examination about drug dealing.

In

light

of

the sparse

evidence

linking Joaquim's drug-dealing to a

building,

no

showing

that

reported drug dealers to

the

defense to

question

Joaquim

presented

by defendant

motive to burn down the Ames

defendant

had

the DEA, and extensive opportunity

for

Joaquim as

knew

that

to bias

and

motive on

variety of other issues for which there was an evidentiary basis,

we find that

the court did not abuse its discretion in excluding

-17-

this line of questions.

court's failure

to grant a

him whether he had

Louis'

Defendant

also

challenges

mistrial after the

government asked

agreed to pay St. Louis' defense

attorney objected

to this

the

questioning

costs.

and requested

St.

mistrial on the ground that the information on which it was based

was unreliable and misleading.

but

denied

the

instruction which

because

Although

the

mistrial,

opting

directed the

government

joining

The court sustained the objection

in

jury to

offered no

the request

defendant's attorney did not join

instead

for

curative

disregard the

question

evidentiary

for

basis

for it.

curative instruction,

in the request for a mistrial,

and at no time did he object to any portion of the instruction or

allege its insufficiency.

Because

the defense

review it only

failed to

for plain error.

raise this issue

below, we

United States v. Crochiere, 129


_____________
_________

F.3d 233, 237 (1st Cir. 1997).

Even assuming the questioning was

improper, we conclude that the

court properly refused to grant a

mistrial,

curative

and that

instruction,

circumstances.

be

it presented the

wholly

"Declaring

implemented if

the

exposure to

realistic hope of

the

a comprehensive

satisfactory

under

a mistrial is a last

taint

ineradicable, that is, only if

jury's

jury with

[from

resort, only to

information]

is

the trial judge believes that the

evidence

repair."

improper

the

is

likely

United States v.
_____________

to

prove

beyond

Sepulveda, 15 F.3d
_________

1161, 1184 (1st

Cir. 1993).

brief, and the

In this case, the

questioning was

judge was careful to explain to the jury that (1)

-18-

the question was

basis

for the

improper; (2) there was

facts

question should be

juries follow

suggested

by the

no offered evidentiary

question;

disregarded "entirely."

the court's

instructions, and

and (3)

As we presume

defendant has

the

that

not

shown

that

required

the

questioning resulted

to overcome the

Rivera, 60
______

F.3d 16,

in

serious

prejudice as

presumption, United States


_____________

18 (1st

Cir. 1995),

v. Rullan_______

we conclude that

the

court did not commit plain error.

Finally, defendant contends that the court erred in using

base offense level of twenty-four rather than twenty on the arson

counts.

The higher level applies

to have knowingly created a

bodily

injury; the

element is not met.

lower

substantial risk of death or serious

level

U.S.S.G.

convicted for two separate acts

he hired

others

to

burn

if the defendant can be found

down

applies

where

2K1.4(a)(1), (2).

the

"knowing"

Defendant was

of arson, based on evidence that

residential

property to collect insurance proceeds.

and

commercial

It does not follow that,

as defendant contends, because the fires were carried forth in an

"amateurish"

people

fashion, his

lived was

effort to

anything other

burn a

than a

building in

knowing creation

substantial risk of death or serious bodily injury.

which

of a

We therefore

reject the argument as without merit.

For the reasons stated above,

district court.

-19-

we affirm the judgment of the


affirm
______