United States v. Lara
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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2215 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> GIOVANNI LARA, <br> <br> Defendant, Appellant. <br> <br> <br> <br> <br> <br>No. 97-2223 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> GEORGE SEPULVEDA, <br> <br> Defendant, Appellant. <br> <br> _____________________ <br> <br> <br>No. 97-2224 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> TERRENCE BOYD, <br> <br> Defendant, Appellant. <br> ______________________ <br> <br>No. 97-2225 <br> <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> SHARIFF ROMAN, <br> <br> Defendant, Appellant. <br> _____________________ <br> <br> <br>No. 97-2226 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> GEORGE PERRY, <br> <br> Defendant, Appellant. <br> _____________________ <br> <br> <br>No. 97-2227 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> ERYN VASQUEZ, <br> <br> Defendant, Appellant. <br> _____________________ <br> <br> APPEALS FROM THE UNITED STATES DISTRICT COURT <br> FOR THE DISTRICT OF RHODE ISLAND <br> <br> [Hon. Mary M. Lisi, U.S. District Judge] <br> <br> <br> <br> <br> <br> <br> <br> Before <br> <br> Selya, Circuit Judge, <br> Kravitch,* Senior Circuit Judge, <br> and Lipez, Circuit Judge. <br> <br> <br> <br> <br> Valeriano Diviacchi, with whom Diviacchi Law Office was on <br>brief, for appellant Lara. <br> Malcolm J. Barach for appellant Sepulveda. <br> Larry J. Ritchie, with whom Edward L. Gerstein was on brief, <br>for appellant Boyd. <br> R. Scott Miller, Jr. for appellant Roman. <br> R. Scott Miller, Jr. with whom Richard J. Shea was on brief, <br>for appellant Perry. <br> Pedro A. Jaile for appellant Vasquez. <br> Lisa Simotas, Attorney, Dep't of Justice, with whom Margaret <br>E. Curran, United States Attorney, Gerard B. Sullivan, and Terrence <br>P. Donnelly, Assistant United States Attorneys, were on brief, for <br>the United States. <br> <br> <br> <br> <br>June 30, 1999 <br> <br> <br> <br>__________ <br>*Of the Eleventh Circuit, sitting by designation.
SELYA, Circuit Judge. A federal grand jury indicted a <br>coterie of defendants, including the six appellants (Giovanni "King <br>G" Lara, George "King Paradise" Sepulveda, Terrence "King Bullet" <br>Boyd, Shariff "King Biz" Roman, George "King Animal" Perry, and <br>Eryn "King Guy" Vasquez) for a multiplicity of crimes arising out <br>of their involvement in the Providence chapter of the Almighty <br>Latin King Nation. Following a 44-day trial, each appellant was <br>convicted on one or more of the following charges: racketeering, <br>18 U.S.C. 1962(c); conspiracy to commit racketeering, id. <br>1962(d); violent crime in aid of racketeering (including two <br>murders and two attempted murders), id. 1959(a)(1) & (5); <br>carjacking, id. 2119(3); witness intimidation, id. 1512(b); use <br>or carriage of a firearm during a crime of violence, id. 924(c); <br>and being a felon in possession of a firearm, id. 922(g). The <br>district court sentenced five of the appellants to life <br>imprisonment and the sixth, Vasquez, to 100 months in prison. <br>These appeals followed. We affirm. <br>I. BACKGROUND <br> We offer a thumbnail sketch of the interrelationship <br>between the appellants and the Latin Kings, taking the information <br>contained in the record in the light most congenial to the jury's <br>verdict. See United States v. Houlihan, 92 F.3d 1271, 1277 (1st <br>Cir. 1996). We eschew an exposition of the other evidence, <br>preferring to discuss that evidence in the body of the opinion as <br>it pertains to our consideration of particular points raised by the <br>appellants. <br> The Latin Kings originated in Chicago in the 1940s. Over <br>time, the street gang's influence spread to other venues. The <br>movement migrated east to Providence in the early 1990s. Though <br>some chapters of the Latin Kings, called Charter Nations, require <br>Hispanic descent as a condition of membership, others (like the <br>Providence chapter) allow persons of all races and ethnicities to <br>join. <br> Members of the Latin Kings signal their affiliation by <br>sporting beads and other accouterments (including tattoos) in the <br>gang's colors black and gold. They pay dues, attend weekly <br>meetings, and undertake "missions" (a euphemism that covers an <br>array of activities ranging from running errands to committing <br>violent crimes) when directed by gang leaders. Respect and <br>security rank among the gang's paramount concerns: the Latin Kings <br>routinely discipline members for disrespectful behavior or for <br>discussing Latin King business with outsiders. Discipline runs a <br>lengthy gamut from the "silent treatment" (suspension of all <br>communications with other gang members), to revocation of drug use <br>privileges, to a "bounce" (a time-controlled beating limited to <br>certain areas of the body), to death.
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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2215 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> GIOVANNI LARA, <br> <br> Defendant, Appellant. <br> <br> <br> <br> <br> <br>No. 97-2223 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> GEORGE SEPULVEDA, <br> <br> Defendant, Appellant. <br> <br> _____________________ <br> <br> <br>No. 97-2224 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> TERRENCE BOYD, <br> <br> Defendant, Appellant. <br> ______________________ <br> <br>No. 97-2225 <br> <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> SHARIFF ROMAN, <br> <br> Defendant, Appellant. <br> _____________________ <br> <br> <br>No. 97-2226 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> GEORGE PERRY, <br> <br> Defendant, Appellant. <br> _____________________ <br> <br> <br>No. 97-2227 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> ERYN VASQUEZ, <br> <br> Defendant, Appellant. <br> _____________________ <br> <br> APPEALS FROM THE UNITED STATES DISTRICT COURT <br> FOR THE DISTRICT OF RHODE ISLAND <br> <br> [Hon. Mary M. Lisi, U.S. District Judge] <br> <br> <br> <br> <br> <br> <br> <br> Before <br> <br> Selya, Circuit Judge, <br> Kravitch,* Senior Circuit Judge, <br> and Lipez, Circuit Judge. <br> <br> <br> <br> <br> Valeriano Diviacchi, with whom Diviacchi Law Office was on <br>brief, for appellant Lara. <br> Malcolm J. Barach for appellant Sepulveda. <br> Larry J. Ritchie, with whom Edward L. Gerstein was on brief, <br>for appellant Boyd. <br> R. Scott Miller, Jr. for appellant Roman. <br> R. Scott Miller, Jr. with whom Richard J. Shea was on brief, <br>for appellant Perry. <br> Pedro A. Jaile for appellant Vasquez. <br> Lisa Simotas, Attorney, Dep't of Justice, with whom Margaret <br>E. Curran, United States Attorney, Gerard B. Sullivan, and Terrence <br>P. Donnelly, Assistant United States Attorneys, were on brief, for <br>the United States. <br> <br> <br> <br> <br>June 30, 1999 <br> <br> <br> <br>__________ <br>*Of the Eleventh Circuit, sitting by designation.
SELYA, Circuit Judge. A federal grand jury indicted a <br>coterie of defendants, including the six appellants (Giovanni "King <br>G" Lara, George "King Paradise" Sepulveda, Terrence "King Bullet" <br>Boyd, Shariff "King Biz" Roman, George "King Animal" Perry, and <br>Eryn "King Guy" Vasquez) for a multiplicity of crimes arising out <br>of their involvement in the Providence chapter of the Almighty <br>Latin King Nation. Following a 44-day trial, each appellant was <br>convicted on one or more of the following charges: racketeering, <br>18 U.S.C. 1962(c); conspiracy to commit racketeering, id. <br>1962(d); violent crime in aid of racketeering (including two <br>murders and two attempted murders), id. 1959(a)(1) & (5); <br>carjacking, id. 2119(3); witness intimidation, id. 1512(b); use <br>or carriage of a firearm during a crime of violence, id. 924(c); <br>and being a felon in possession of a firearm, id. 922(g). The <br>district court sentenced five of the appellants to life <br>imprisonment and the sixth, Vasquez, to 100 months in prison. <br>These appeals followed. We affirm. <br>I. BACKGROUND <br> We offer a thumbnail sketch of the interrelationship <br>between the appellants and the Latin Kings, taking the information <br>contained in the record in the light most congenial to the jury's <br>verdict. See United States v. Houlihan, 92 F.3d 1271, 1277 (1st <br>Cir. 1996). We eschew an exposition of the other evidence, <br>preferring to discuss that evidence in the body of the opinion as <br>it pertains to our consideration of particular points raised by the <br>appellants. <br> The Latin Kings originated in Chicago in the 1940s. Over <br>time, the street gang's influence spread to other venues. The <br>movement migrated east to Providence in the early 1990s. Though <br>some chapters of the Latin Kings, called Charter Nations, require <br>Hispanic descent as a condition of membership, others (like the <br>Providence chapter) allow persons of all races and ethnicities to <br>join. <br> Members of the Latin Kings signal their affiliation by <br>sporting beads and other accouterments (including tattoos) in the <br>gang's colors black and gold. They pay dues, attend weekly <br>meetings, and undertake "missions" (a euphemism that covers an <br>array of activities ranging from running errands to committing <br>violent crimes) when directed by gang leaders. Respect and <br>security rank among the gang's paramount concerns: the Latin Kings <br>routinely discipline members for disrespectful behavior or for <br>discussing Latin King business with outsiders. Discipline runs a <br>lengthy gamut from the "silent treatment" (suspension of all <br>communications with other gang members), to revocation of drug use <br>privileges, to a "bounce" (a time-controlled beating limited to <br>certain areas of the body), to death. <br> The Almighty Latin King Nation is a hierarchical <br>organization, and each of the appellants held one or more <br>leadership positions within the Providence chapter. Sepulveda <br>served as the group's president (sometimes called "Inca"). Boyd <br>served as the vice-president (sometimes called "Cacique"), and <br>later succeeded Sepulveda as president. Roman served as the chief <br>enforcer (a position previously held by Lara and subsequently held <br>by Perry), and replaced Boyd as vice-president. Vasquez functioned <br>as the group's philosopher and then graduated to the post of <br>investigator. <br> Against this backdrop, we proceed to survey the <br>appellants' assignments of error. We start with two issues <br>pertaining to jury selection and then treat three of the trial <br>court's evidentiary rulings. At that juncture, we address a series <br>of Rule 29 claims. Finally, we tackle a perceived problem with the <br>jury instructions. To the extent that the appellants mount other <br>claims, we reject them out of hand, without elaboration. <br>II. JURY SELECTION ISSUES <br> Most of the appellants join in two challenges related to <br>jury selection: all save Perry argue that the jury pool was not <br>composed of a fair cross-section of the community, and all <br>calumnize the prosecution's use of a peremptory challenge to strike <br>an African-American prospective juror. We find no merit in either <br>of these assigned errors. <br> A. The Fair Cross-Section Claim. <br> The Constitution affords a criminal defendant the right <br>to a trial "by an impartial jury of the State and district wherein <br>the crime shall have been committed." U.S. Const. amend. VI. This <br>constitutional command requires that juries be selected from a <br>representative cross-section of the community. See Duren v. <br>Missouri, 439 U.S. 357, 358-59, 363-64 (1979); Taylor v. Louisiana, <br>419 U.S. 522, 528 (1975). Congress codified that requirement in <br>the Jury Selection and Service Act, (JSSA), 28 U.S.C. 1861. The <br>appellants assert that the venires from which the district court <br>selected both their grand and petit juries defied this imperative. <br>We do not agree. <br> The appellants base their assertion on Rhode Island's <br>failure to comply with the National Voter Registration Act (NVRA), <br>42 U.S.C. 1973gg to 1973gg-10 (1994). This statute, known <br>colloquially as the motor voter law, took effect in Rhode Island on <br>January 1, 1995. It requires states to accept voter registration <br>applications in tandem with applications for drivers' licences and <br>other permits, and to establish procedures to facilitate that <br>process. See id. 1973gg-2(a), 5(a). Rhode Island has conceded <br>that it did not fully comply with the NVRA. See League of Women <br>Voters v. Rhode Island Bd. of Elections, No. 96-442ML (D.R.I. Sept. <br>12, 1996) (consent decree). Because the District of Rhode Island <br>derives its jury wheel from the state's voter registration lists, <br>see In re Amended Juror Selection Plan, Misc. No. 75-209 (D.R.I. <br>Oct. 6, 1993), the appellants claim that this noncompliance <br>rendered the District's jury venires unrepresentative and <br>transgressed both the Sixth Amendment and the JSSA. <br> This claim is fully preserved with respect to the five <br>appellants who proffer it here. Although only Sepulveda and Boyd <br>moved to dismiss the indictment on this basis, the district court <br>permitted Lara, Roman, and Vasquez to adopt Sepulveda's and Boyd's <br>position. <br> Though preserved, the claim is unavailing. In order to <br>establish a fair cross-section violation under either the Sixth <br>Amendment or the JSSA, a criminal defendant must make a tripartite <br>showing comprising cognizability (i.e., that the group alleged to <br>be excluded is a distinctive group), underrepresentation (i.e., <br>that the group is not fairly and reasonably represented in the <br>venires from which juries are selected), and systematic exclusion <br>(i.e., that the discerned underrepresentation is due to the group's <br>systematic exclusion from the jury-selection process). See Duren, <br>439 U.S. at 364; United States v. Royal, ___ F.3d ___, ___ (1st <br>Cir. 1999) [1999 WL 179003, at *4]. Assuming, arguendo, that the <br>appellants have made the first of these three showings, they <br>plainly have failed to satisfy either the second or third part of <br>the test. Because the Duren test is conjunctive the proponent of <br>a fair cross-section claim must satisfy all three of its elements <br> either of these failings suffices to defeat the instant claims. <br> We start with underrepresentation. A showing of <br>underrepresentation must be predicated on more than mere guesswork. <br>Such a showing requires competent proof (usually statistical in <br>nature). See, e.g., Duren, 439 U.S. at 364-65; United States v. <br>Pion, 25 F.3d 18, 22-23 (1st Cir. 1994); see also United States v. <br>Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984) (considering the <br>statistical methodologies that might be used to determine <br>underrepresentation and selecting the absolute disparity method). <br>The single supporting document filed in the district court in <br>connection with the appellants' motions to dismiss was an affidavit <br>attesting to the legislative history and purposes of the NVRA, and <br>the genesis of the consent decree. This affidavit does not supply <br>any foundation for a finding that the representation of Hispanic <br>venirepersons in the District was unfair, unreasonable, or in any <br>way disproportionate to their numbers in the community. <br> A successful fair cross-section claim also requires <br>competent proof of the systematic nature of the exclusionary <br>mechanisms leading to the underrepresentation. See Duren, 439 U.S. <br>at 366-67; Royal, ___ F.3d at ___ [1999 WL 179003, at *4]. The <br>supporting affidavit in this case offers no reason to believe that <br>any systematic exclusion of Hispanics occurred in the selection <br>process, let alone that it caused any material underrepresentation. <br>The NVRA is addressed to heightening overall popular participation <br>in federal elections, as well as to increasing voter registration <br>by members of racial minorities. See 42 U.S.C. 1973gg. The <br>naked fact of Rhode Island's noncompliance with the statute <br>provides no insight into whether voter registration lists (and, <br>therefore, the jury wheel compiled from those lists) were skewed <br>for or against minorities if skewed at all. Since the appellants' <br>proffer does not identify any systemic shortcoming or operational <br>deficiency that would tend to lessen Hispanic representation in the <br>master jury wheel disproportionately, it does not satisfy the third <br>part of the Duren test. See Pion, 25 F.3d at 22-23. <br> It follows inexorably from what we have said that the <br>district court did not err in rejecting the pretrial motions to <br>dismiss the indictment for want of a fair cross-section. <br> B. The Batson Challenge. <br> The appellants unanimously claim that the prosecution <br>impermissibly used a peremptory challenge to banish a prospective <br>juror, Bruce King, because of his race. We rehearse the events <br>that undergird this complaint. <br> Relatively late in the voir dire process, King, a black <br>male, was tentatively seated. The district judge, the prosecutor, <br>and several defense attorneys proceeded to question him. <br>Sepulveda's lawyer noted that the evidence would include allusions <br>to racial epithets and mention of the fact that many Latin King <br>chapters did not welcome African Americans. He then asked whether <br>such testimony might affect King's ability to decide the case. <br>King replied, "I believe I can be a fair and impartial juror under <br>any circumstance." Upon hearing this declaration, Perry began to <br>applaud. The court silenced him and the voir dire continued. When <br>the defense team had completed its interrogation of King, the <br>prosecutor asked that Perry's effusion be placed on the record. He <br>then queried King as to whether the applause made him <br>uncomfortable. King responded in the negative, explaining that he <br>did not know why Perry felt impelled to clap. <br> Because the prosecutor's questions suggested a concern <br>over whether the incident would jeopardize King's ability to render <br>an impartial verdict, Roman's counsel requested an opportunity to <br>discuss the matter. He debunked the notion that King had been <br>compromised and emphasized that King was one of very few potential <br>black jurors who might be eligible for service in the case <br>perhaps the only one. Judge Lisi permitted King to leave for the <br>day and reprimanded Perry, warning him that another outburst would <br>result in his removal from the courtroom. The dialogue between the <br>court and counsel then resumed. The prosecutor summarized his <br>position and speculated that "[i]f we can find other black jurors <br>in the panel to sit," he might use a peremptory strike to eject <br>King from the jury. The day's proceedings ended without resolving <br>the issue of King's continued service. <br> The next day, the prosecutor moved to excuse King for <br>cause and the parties argued the point. The district judge took <br>the matter under advisement overnight. She ultimately denied the <br>motion, explaining: <br> On the record, that is, taking Mr. King's <br> statements at face value as I do, I do not <br> believe that cause exists to remove him from <br> this panel. . . . [I]t appears from what I <br> observed here in the courtroom and what <br> occurred on the record afterwards with the <br> colloquy between the Government and Mr. King, <br> that Mr. King was not affected by Mr. Perry's <br> action. <br> <br> When the time arrived for the parties to exercise their <br>peremptory strikes, the government challenged King. The appellants <br>branded this strike race-based and violative of the Equal <br>Protection Clause. After hearing argument, the district court <br>overruled their objections. Because this decision resolves a mixed <br>question of law and fact that is peculiarly fact-sensitive, we <br>review it for clear error. See United States v. Bergodere, 40 F.3d <br>512, 516 (1st Cir. 1994). <br> It is by now common ground that race is an <br>unconstitutional proxy for juror competence and impartiality, and, <br>therefore, that criminal defendants have an equal protection right <br>to jury selection procedures that are free from racial biases. See <br>Powers v. Ohio, 499 U.S. 400, 404 (1991); Batson v. Kentucky, 476 <br>U.S. 79, 89 (1986); Bergodere, 40 F.3d at 515. We have directed <br>the use of a three-part framework to aid in assessing the validity <br>of an allegation that the prosecution stooped to employ a race- <br>based peremptory strike. See Bergodere, 40 F.3d at 515 (citing, <br>inter alia, Batson, 476 U.S. at 96-98). This framework envisions <br>that: <br> [T]he defendant must make a prima facie <br> showing of discrimination in the prosecutor's <br> launching of the strike. If the defendant <br> fulfills this requirement by establishing, <br> say, a prima facie case of a racially driven <br> impetus, then the prosecutor must proffer a <br> race-neutral explanation for having challenged <br> the juror. . . . If the prosecutor complies, <br> then, at the third and final stage, the <br> district court must decide whether the <br> defendant has carried the ultimate burden of <br> proving that the strike constituted purposeful <br> discrimination on the basis of race. <br> <br>Id. (citations and footnote omitted). In deploying this framework, <br>the prosecutor's second-step burden of proffering a race-neutral <br>explanation for the strike "is merely a burden of production, not <br>a burden of persuasion," and the defendant retains the devoir of <br>persuasion throughout the course of the inquiry. Id. <br> In this case, we can truncate the usual inquiry. In the <br>district court, as here, the government tacitly acknowledged that <br>the defendants had (or could have) offered a prima facie showing <br>that the strike appeared discriminatory. Thus, the first step of <br>the pavane need not detain us. See Hernandez v. New York, 500 U.S. <br>352, 359 (1991). <br> At the second step, the government must advance a race- <br>neutral explanation for its peremptory challenge. In an effort to <br>meet this requirement, the prosecutor pointed to Perry's applause, <br>theorizing that Perry might have been trying either to create an <br>affinity with King or to intimidate him. In either event, the <br>prosecutor stated, he feared that King's impartiality would wane, <br>particularly after King learned of the atrocities that the <br>government ascribed to Perry and his confederates. Although the <br>appellants contended that this explanation was bogus, the district <br>judge accepted it. King was excused, and the empanelment <br>continued. When sworn, the jury included one juror who described <br>himself as Mexican and one who appeared non-Caucasian (but from <br>whom no racial information was elicited). <br> We discern no clear error in Judge Lisi's ruling. In <br>order to meet the second-step requirement, a prosecutor's <br>explanation need only be unrelated to race on its face. At this <br>point, neither the persuasiveness of the explanation nor the <br>credibility of the prosecutor is at issue. See Purkett v. Elem, <br>514 U.S. 765, 768-69 (1995) (per curiam); Hernandez, 500 U.S. at <br>360. Perry's clearly inappropriate courtroom behavior and its <br>potential effect on King's ability to serve as a juror are in no <br>way related to race, and, thus, the proffered reason crosses this <br>modest threshold. See, e.g., Purkett, 514 U.S. at 769 (finding <br>prosecutor's explanation that strikes of black jurors were based on <br>beards and long, unkempt hair to be race-neutral for purposes of <br>the second Batson way station). <br> This leaves the third, and final, determination: whether <br>the appellants have proven that the strike constituted racial <br>discrimination. This decision boils down to whether the appellants <br>have convinced the district court that the race-neutral explanation <br>furnished by the government rings hollow. Because the question is <br>intensely fact-driven and the answer often pivots on credibility, <br>appellate tribunals must scrutinize the trial court's response <br>under a highly deferential glass. See Hernandez, 500 U.S. at 364- <br>65; Batson, 476 U.S. at 98 n.21. <br> In this case, the trier credited the government's <br>explanation: <br> I have heard the explanation of the Government <br> and I have observed [the prosecutor's] <br> reaction to Mr. Perry's applause. And I <br> cannot say that [the prosecutor's] challenge <br> here is based on race. [His] challenge is <br> based, as he says, on conduct and on the <br> concern that he has and quite frankly, that <br> the Court has as to what effect Mr. Perry's <br> misbehavior would have on Juror King . . . . <br> <br>The judge also noted that she had observed no pattern of <br>discrimination in the government's use of its peremptory challenges <br> a fact that may be entitled to special weight in determining <br>whether a prosecutor's race-neutral explanation for a peremptory <br>challenge is pretextual. See Hernandez, 500 U.S. at 363. <br> The appellants urge us to hold that Judge Lisi committed <br>clear error in upholding the prosecutor's strike. They assert that <br>she misunderstood the applicable legal standard, but the record <br>belies this ipse dixit. They also harp on the prosecutor's earlier <br>statement that he might consider exercising a peremptory challenge <br>against King if other black jurors were empaneled. This statement, <br>the appellants say, suggests that the government in certain <br>circumstances would have left King on the jury solely because he <br>was black, thus proving that the prosecutor had race in mind and <br>deliberately injected it into the jury-selection calculus. While <br>we do not defend the prosecutor's comment (which was both <br>insensitive and unfortunate), we find no clear error in the <br>district court's conclusion that the prosecutor's remark did not <br>discredit his race-neutral explanation. See Cumpiano v. Banco <br>Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (explaining that <br>no clear error exists unless review "on the whole of the record" <br>generates "a strong, unyielding belief that a mistake has been <br>made"). <br> The governing principle, of course, is that a person's <br>race must be regarded as "unrelated to his fitness as a juror." <br>Batson, 476 U.S. at 87. Here, the record makes manifest that Judge <br>Lisi took this principle fully into account, and her resolution of <br>the issue of pretext based on her assessment of the prosecutor's <br>demeanor and credibility cannot be disturbed. Perry's paroxysm <br>injected an imponderable into the equation. Trial lawyers <br>understandably fear the unknown, and that fear, in itself, is not <br>indicative of a race-based viewpoint. When the prosecutor voiced <br>this sort of concern, the district judge was well-situated to <br>assess his candor. The judge did so here and we will not second- <br>guess her assessment. After all, when the evidence gives rise to <br>competing interpretations, each plausible, the factfinder's choice <br>between them cannot be clearly erroneous. See Smith v. F.W. Morse <br>& Co., 76 F.3d 413, 423 (1st Cir. 1996); Johnson v. Watts Regulator <br>Co., 63 F.3d 1129, 1138 (1st Cir. 1995). <br>III. EVIDENTIARY ISSUES <br> The appellants level a number of criticisms relating to <br>the admission of evidence. Only three of these criticisms warrant <br>discussion. <br> A. Coconspirator Testimony. <br> Boyd disputes the district court's admission of certain <br>videotaped statements under Fed. R. Evid. 801(d)(2)(E). We sketch <br>the circumstances. <br> The government played videotapes for the jury during the <br>trial. These videotapes had been secured with the cooperation of <br>a confidential informant, Jose Ortiz, at whose home Latin King <br>meetings sometimes were held. The videotape about which Boyd <br>complains includes a solitary mention of him by Roman while <br>discussing how Mendez's murder came about. Boyd contemporaneously <br>objected to the admission of this evidence against him on the <br>ground that it fell outside the scope of Rule 801(d)(2)(E). He <br>also seasonably requested an instruction limiting the jury's <br>consideration of the evidence to other defendants. The trial judge <br>overruled the objection, admitted the evidence unconditionally, and <br>declined to give the requested limiting instruction. <br> We review challenges to the admission of evidence for <br>abuse of discretion. See Williams v. Drake, 146 F.3d 44, 47 (1st <br>Cir. 1998). On this basis, Boyd's challenge stumbles at the <br>starting gate. His argument addresses the admissibility of the <br>evidence solely in respect to the only charge on which the jury <br>found him guilty the murder-in-aid-of-racketeering charge. But <br>Boyd was also tried on (albeit not found guilty of) racketeering <br>and racketeering conspiracy charges under the Racketeer Influenced <br>and Corrupt Organizations Act (RICO), 18 U.S.C. 1962, and he <br>concedes that the tape was admissible against him vis--vis those <br>charges. <br> This concession is dispositive, for the designation of a <br>declaration as non-hearsay under Rule 801(d)(2)(E) is neither <br>count-specific nor conspiracy-specific. See United States v. <br>Innamorati, 996 F.2d 456, 486 (1st Cir. 1993). Subject to <br>relevancy and similar considerations, out-of-court statements of a <br>declarant coconspirator, if made during and in furtherance of a <br>conspiracy, are admissible for the truth of the matter asserted, <br>regardless of whether the conspiracy furthered is charged or <br>uncharged, see United States v. Candelaria-Silva, 162 F.3d 698, 706 <br>(1st Cir. 1998); United States v. Rivera, 68 F.3d 5, 7 (1st Cir. <br>1995), and regardless of whether it is identical to or different <br>from the crime that the statements are offered to prove, see <br>Innamorati, 996 F.2d at 486. Hence, the trial court did not abuse <br>its discretion in overruling Boyd's objection. <br> We think that the court also appropriately refused Boyd's <br>request for a limiting instruction. When the government proffered <br>the videotape, Boyd requested an instruction that "the jury c[ould] <br>not consider the statements of Shariff Roman as substantive <br>evidence or proof that Boyd participated in the murder of Mendez." <br>But the Mendez murder was not charged against Boyd merely as a <br>violent crime in aid of racketeering, 18 U.S.C. 1959(a)(1), but <br>also was charged as one of the predicate acts in the RICO count, <br>id. 1962(c). As Boyd concedes, the challenged statements were <br>admissible non-hearsay evidence as to the latter count. Thus, the <br>jury was entitled to consider the relevant portions of Roman's <br>statements on that count as to all the defendants (Boyd included). <br>On this basis, the proposed instruction which swept broadly <br>rather than asking narrowly that the jury disregard the statements <br>in respect to the separate charge that the murder was a violent <br>crime in aid of racketeering would at best have been confusing, <br>and at worst, legally erroneous. It is, of course, hornbook law <br>that a party cannot rewardingly assign error to a trial court's <br>refusal to give a confusing, misleading, or legally incorrect <br>instruction. See United States v. DeStefano, 59 F.3d 1, 4 (1st <br>Cir. 1995); United States v. David, 940 F.2d 722, 738 (1st Cir. <br>1991). <br> In all events, we need not linger over this point, <br>inasmuch as the videotape is not significantly inculpatory as to <br>Boyd's involvement in the commission of the Mendez murder. The <br>only statement on the tape that relates to Boyd at all occurs when <br>Roman says that, at the time of the murder, "Bullet was, um, in <br>Training School still, you know what I mean?" This statement, on <br>its face, is benign (perhaps exculpatory). Still, in a feat of <br>linguistic legerdemain, the government construed this statement at <br>trial to mean that Boyd had escaped from the Training School, and <br>thus was available when the Latin Kings contrived the murder plot. <br>Even if this odd interpretation is accepted, however, the statement <br>only showed that Boyd was available at the time of the Mendez <br>murder. Since several percipient witnesses testified not only to <br>his availability, but also to his actual presence at the meetings <br>in which the Latin Kings planned Mendez's murder, any error in <br>refusing to give the requested instruction was harmless because <br>there was no "realistic possibility that admission of the evidence <br>influenced the outcome of the trial" as to Boyd's guilt on the <br>single count of conviction (commission of a violent crime in aid of <br>racketeering). United States v. Polito, 856 F.2d 414, 420 (1st <br>Cir. 1988); cf. United States v. Ladd, 885 F.2d 954, 957-58 (1st <br>Cir. 1989) (finding erroneous admission of evidence harmless when <br>the evidence served only to prove a point well documented by other <br>evidence). <br> B. Testimony of Cooperating Witnesses. <br> During the trial, the government offered the testimony of <br>several cooperating witnesses, who testified in return for promises <br>that they would not be charged federally for certain crimes and/or <br>for recommendations of lenient sentencing in respect to crimes for <br>which they had been or would be charged. Five of the appellants <br>(Boyd excluded) insist that the lower court should have barred <br>these witnesses from testifying, and that its failure to do so <br>necessitates a new trial. <br> The appellants pin their hopes on a witness-bribery <br>statute which provides in relevant part: <br> Whoever . . . directly or indirectly, gives, <br> offers or promises anything of value to any <br> person, for or because of the testimony under <br> oath or affirmation given or to be given by <br> such person as a witness upon a trial, <br> hearing, or other proceeding, before any court <br> . . . authorized by the laws of the United <br> States to hear evidence or take testimony . . <br> . shall be fined under this title or <br> imprisoned for not more than two years, or <br> both. <br> <br>18 U.S.C. 201(c)(2). In mid-1998, a panel of the Tenth Circuit <br>interpreted this statute to forbid testimony given in exchange for <br>promised leniency, and applied an exclusionary rule to such <br>testimony. See United States v. Singleton, 144 F.3d 1343 (10th <br>Cir. 1998) (Singleton I). Since then, the federal courts have been <br>inundated with a flood of what have come to be called "Singleton <br>arguments," and we take the opportunity to dam this misguided <br>stream. <br> Singleton I appears to us to be nothing more than an <br>aberration, and we reject its reasoning and result. We use the <br>term "aberration" advisedly, because the opinion has been overruled <br>in the circuit of its birth, see United States v. Singleton, 165 <br>F.3d 1297, 1298 (10th Cir. 1999) (en banc) (Singleton II), cert. <br>denied, ___ S. Ct. ___ [1999 WL 185874], and several other courts <br>of appeals have disavowed its anfractuous reading of section <br>201(c)(2), see, e.g., United States v. Lowery, 166 F.3d 1119, 1122- <br>24 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980, 987 <br>(D.C. Cir. 1999); United States v. Ware, 161 F.3d 414, 418 (6th <br>Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999); United States v. <br>Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert. denied, ___ S. <br>Ct. ___ (1999) [1999 WL 241837]. We, too, have intimated as much. <br>See United States v. Hernandez-Albino, ___ F.3d ___, ___ (1st Cir. <br>1999) [No. 98-1643, slip op. at 16] (holding that refusal to follow <br>Singleton I does not constitute plain error). Today, we make our <br>position explicit and unqualified. <br> There are several reasons why section 201(c)(2) cannot be <br>invoked as a bright-line barrier to the government's use of <br>witnesses whose cooperation has been secured by agreements not to <br>prosecute or by promises of recommended leniency. The most basic <br>reason is that section 201(c)(2) does not apply at all to the <br>federal sovereign qua prosecutor. Accord Ramsey, 165 F.3d at 987- <br>90; Haese, 162 F.3d at 366-67; Ware, 161 F.3d at 418-21. After <br>all, "[s]tatutes of general purport do not apply to the United <br>States unless Congress makes the application clear and <br>indisputable," Singleton II, 165 F.3d at 1300, and Congress has <br>taken no such steps in respect to this statute. Reliance on this <br>tenet is particularly apt where, as here, the failure to honor it <br>would divest the government of a long-established prerogative and, <br>in the bargain, lead to an eccentric result. See Nardone v. United <br>States, 302 U.S. 379, 383 (1937). <br> We add, moreover, that the Singleton I panel's reading of <br>section 201(c)(2) cannot be correct because such a reading would <br>preclude enforcement or limit the efficacy of the terms of several <br>more recent and more specific statutes, all of which presuppose <br>the potential use of testimony in exchange for non-prosecution <br>agreements, leniency recommendations, and/or other valuable <br>promises. See, e.g., 28 U.S.C. 994(n) (authorizing the <br>Sentencing Commission to include in the sentencing guidelines a <br>mechanism by which courts may reduce sentences to account for <br>convicted defendants' substantial assistance); 18 U.S.C. 3521 <br>(providing for government-subsidized relocation and protection of <br>witnesses in return for their testimony); 18 U.S.C. 6002, 6003 <br>(allowing prosecutors to obtain orders compelling witnesses to <br>testify despite potential self-incrimination, in return for <br>immunity from prosecution based on that testimony). These <br>enactments would be crippled, if not rendered utterly meaningless, <br>were we to follow the siren's call of Singleton I. Courts <br>generally adhere to the principle that statutes relating to the <br>same subject matter should be construed harmoniously if possible, <br>and if not, that more recent or specific statutes should prevail <br>over older or more general ones. See HCSC-Laundry v. United <br>States, 450 U.S. 1, 6 (1981); Morton v. Mancari, 417 U.S. 535, 550- <br>51 (1974); see also 2B Norman J. Singer, Statutes and Statutory <br>Construction 51.02-03 (1992). There is no basis for eschewing <br>that time-tested principle in this instance. <br> At the risk of carting coal to Newcastle, we briefly note <br>two other bases for disavowing Singleton I. First, it is at least <br>arguable that section 201(c)(2) should not apply to the government <br>because the Dictionary Act, 1 U.S.C. 1, which creates a frame of <br>reference for parsing statutes, defines the word "whoever" to <br>include "corporations, companies, associations, firms, <br>partnerships, societies, and joint stock companies, as well as <br>individuals," but does not define the word to include the United <br>States. Id.; see also Ramsey, 165 F.3d at 987. Second, even if <br>section 201(c)(2) were applicable to the testimony of cooperating <br>witnesses, the appropriate penalty for the use at trial of <br>testimony obtained in derogation of the statute most likely would <br>be a fine or imprisonment (as prescribed by the statute itself), <br>not resort to a judicially-crafted exclusionary rule. See United <br>States v. Condon, 170 F.3d 687, 689 (7th Cir. 1999); Ramsey, 165 <br>F.3d at 991. <br> We have said enough on this score. We hold, without <br>serious question, that 18 U.S.C. 201(c)(2) does not bar the <br>government from promising leniency or the like to cooperating <br>witnesses. Accordingly, the district court did not err in <br>admitting the contested testimony. <br> C. Scope of Cross-Examination. <br> Perry, who testified at trial in his own defense, strives <br>to persuade us that the district court gave the government too free <br>rein in cross-examination. We are unconvinced. <br> Perry's thesis is that the challenged cross-examination <br>exceeded the scope of direct examination and, therefore, should <br>have been foreclosed. This thesis rests primarily on the first <br>sentence of Fed. R. Evid. 611(b), which reads: "Cross-examination <br>should be limited to the subject matter of the direct examination <br>and matters affecting the credibility of the witness." Perry notes <br>that his direct examination consisted of only ten questions, <br>restricted to the Vandergroen carjacking and its sequelae. See <br>infra Part IV(A)(2) (describing this carjacking). Yet, the trial <br>court allowed the prosecutor, over objection, to cross-question <br>Perry not only about the carjacking, but also about other crimes of <br>which he and his codefendants were accused (including the Mendez <br>murder and two attempted homicides charged as predicate acts in the <br>RICO conspiracy count), and about a draft of a letter seized from <br>his jail cell in which he accused his former girlfriend of <br>"snitching" and requested that she be silenced. <br> We review district court rulings anent the scope of <br>cross-examination solely for abuse of discretion. See United <br>States v. Smith, 145 F.3d 458, 462 (1st Cir.), cert. denied, 119 S. <br>Ct. 383 (1998); United States v. Morla-Trinidad, 100 F.3d 1, 4 (1st <br>Cir. 1996). We find none here. It is standard fare for cross- <br>examiners to inquire into issues not mentioned on direct <br>examination, but related to and made relevant by that examination. <br>See McGautha v. California, 402 U.S. 183, 215 (1971). It is <br>equally standard and equally proper for a cross-examiner to <br>delve into matters which, although not mentioned on direct <br>examination, bear on the witness's credibility. See id. <br>Collectively, these two categories envelop the questions that Perry <br>challenges. We explain briefly. <br> The indictment charged the Vandergroen carjacking as a <br>predicate act within the RICO conspiracy and as a violent crime in <br>aid of racketeering. At trial, the government asserted that <br>Vandergroen's disrespect of Perry offended the Latin King code and <br>led Perry to target him. During the government's case in chief, at <br>least two witnesses testified in support of this theory. Because <br>Perry's direct examination included a denial that the Vandergroen <br>incident had anything to do with the Latin Kings, the government <br>was entitled to test the veracity of this denial. One way of doing <br>so was to interrogate Perry about other crimes that he had <br>committed under the organization's auspices. <br> In his direct testimony, Perry also endeavored to <br>exonerate Lara, portraying him on direct examination as unaware <br>until it was too late that either the carjacking or the killing <br>would transpire. On cross-examination, the government sought to <br>show that this version of events conflicted with Perry's earlier <br>statement to the police and to suggest that he was covering for <br>Lara as part of his perceived duty as a Latin King not to "rat" on <br>fellow gang members. It was in this context that the prosecutor <br>asked about the correspondence in which Perry solicited punishment <br>for his loose-lipped girlfriend. Thus, we detect no abuse of <br>discretion in Judge Lisi's determination that these lines of cross- <br>questioning were not beyond the scope of Perry's direct <br>examination. <br> We hasten to add that, even were we to conclude that the <br>challenged questions exceeded the scope of direct examination, we <br>nonetheless would uphold the judge's rulings. Perry's <br>animadversions largely overlook the second sentence of Rule 611(b), <br>which empowers trial courts, "in the exercise of discretion, [to] <br>permit inquiry into additional matters as if on direct <br>examination." Fed. R. Evid. 611(b). This authorization confers <br>discretion on trial judges to disregard the first sentence of Rule <br>611(b) and allow cross-examination to extend into areas not <br>explored on direct. See Losacco v. F.D. Rich Constr. Co., 992 F.2d <br>382, 385 (1st Cir. 1993); United States v. Arnott, 704 F.2d 322, <br>324 (6th Cir. 1983); United States v. Raper, 676 F.2d 841, 846-47 <br>(D.C. Cir. 1982). But cf. Lis v. Robert Packer Hosp., 579 F.2d <br>819, 823 (3d Cir. 1978) (confining the exercise of a district <br>court's discretion under the second sentence of Rule 611(b) to <br>"special circumstances"). In this instance, the challenged <br>questions occupied only a fraction of the cross-examination and <br>bore a close relationship to major trial issues. Thus, whether or <br>not the questions fell within the scope of the direct examination, <br>we could not say that the trial judge's overruling of Perry's <br>objections constituted an abuse of discretion. <br>IV. SUFFICIENCY OF THE EVIDENCE <br> We next address the denial of Lara's, Boyd's, and Roman's <br>motions for judgment of acquittal under Fed. R. Crim. P. 29. In <br>reviewing such denials, the court of appeals affords plenary review <br>and applies precisely the same regimen that obtains in the trial <br>court. This regimen entails considering the evidence in the light <br>most favorable to the prosecution and determining whether this body <br>of proof, as a whole, has sufficient bite to ground a reasoned <br>conclusion that the government proved each of the elements of the <br>charged crime beyond a reasonable doubt. See United States v. <br>Valle, 72 F.3d 210, 216-17 (1st Cir. 1995); United States v. <br>Olbres, 61 F.3d 967, 970 (1st Cir. 1995). This prosecution- <br>friendly standard requires the resolution of all evidentiary <br>disputes and credibility questions in favor of the government, and <br>also requires the acceptance of those reasonable inferences from <br>the evidence (whether or not inevitable) that support the <br>government's view of the case. See United States v. Carroll, 105 <br>F.3d 740, 742 (1st Cir.), cert. denied, 520 U.S. 1258 (1997). The <br>jury's verdict must stand unless the record, viewed from this coign <br>of vantage, would not allow a rational jury to find the defendant <br>guilty beyond a reasonable doubt. See id.; see also Olbres, 61 <br>F.3d at 970. With these criteria in mind, we turn to the specifics <br>of the appellants' claims. <br> A. Lara's Challenges. <br> Lara contests the sufficiency of the evidence in regard <br>to two separate convictions. We discuss these initiatives <br>sequentially. <br> 1. Witness Intimidation. Initially, Lara attacks his <br>conviction for intimidating a government witness, Manuel Pacheco <br>(variously referred to as "Manny" or "Joey"). As it applies in <br>this case, the statute of conviction requires the government to <br>prove two elements: (i) that the defendant knowingly used <br>intimidation, physical force, or threats against another, and (ii) <br>that this conduct was intended to "influence, delay, or prevent the <br>testimony of any person in an official proceeding." 18 U.S.C. <br>1512(b)(1). The term "official proceeding" encompasses both <br>federal criminal trials and grand jury sessions. See id. <br>1515(a)(1)(A); see also United States v. Victor, 973 F.2d 975, 978 <br>(1st Cir. 1992). <br> The facts, marshaled in the light most flattering to the <br>government, amply support the jury's verdict on this count. The <br>jury reasonably could have found that Pacheco aided the authorities <br>in their investigation of the Latin Kings, that the organization's <br>top brass suspected as much, and that they feared that Pacheco had <br>appeared (or would soon do so) as a witness before the grand jury <br>and/or at an ensuing trial. In November 1994, Sepulveda (then the <br>president of the Providence chapter) ordered Pacheco's <br>"termination" (a disposition which, in Latin King parlance, might <br>mean anything from a beating to a slaying). <br> At the time, Pacheco was housed in the Rhode Island state <br>penitentiary (as was Lara). Vasquez and two fellow Latin Kings <br>(Alex Mesa and Rodney Santi) were dispatched to explain the <br>situation and communicate the order to a pickup team of <br>incarcerated Latin Kings. At the penitentiary, the three <br>messengers visited one on one with a trio of Latin King inmates <br>(Lara, Kareem Abdulla, and Edson Toro) and carried out their <br>assignment. To be specific, Vasquez met with Lara, Mesa with <br>Abdulla, and Santi with Toro. The following evening, Lara, <br>Abdulla, Toro, and a fourth incarcerated Latin King, Richard <br>Rodriguez, approached Pacheco in a dark corner of the prison yard. <br>The group surrounded Pacheco and taunted him about being a "rat." <br>He was then struck from behind and savagely beaten. <br> Lara declares that this evidence is inadequate because no <br>direct testimony showed that he received the termination order <br>(indeed, Vasquez testified to the contrary) or participated in <br>administering the beating. These declarations comprise more cry <br>than wool. Mesa and Santi testified that they rode to the prison <br>with Vasquez, that the three of them discussed the termination <br>order en route, and that they each relayed the message to the <br>inmate with whom they spoke. Vasquez signed the prison's visitor <br>log. He admitted visiting with Lara. Pacheco testified that Lara <br>had been in the group that surrounded him and had been behind him <br>when he was struck from the rear. <br> Although this evidence is largely circumstantial, the <br>jury reasonably could have disbelieved Vasquez's self-serving <br>denial and inferred that he followed orders (as his fellow <br>messengers had) and communicated the directive to Lara. By like <br>token, the jury reasonably could have credited Pacheco's account <br>and thus inferred that Lara participated in the beating. Any <br>divergent view of the evidence would elevate coincidence to an art <br>form. The proof, therefore, was sufficient to convict on the <br>witness intimidation count. See United States v. Castro-Lara, 970 <br>F.2d 976, 981 (1st Cir. 1992) (explaining that "circumstantial <br>evidence, in and of itself, is often enough to ground a <br>conviction"); see also Carroll, 105 F.3d at 743 (noting, in the <br>context of rejecting an insufficiency challenge, the reticence of <br>appellate courts to "second-guess" a jury's credibility judgments). <br> 2. Carjacking. Lara and Perry were convicted of a <br>carjacking on September 6, 1994. This scenario involved Temujin <br>Vandergroen, who apparently precipitated the incident by playing <br>with a knife in front of Perry's children. Perry interpreted this <br>as a sign of disrespect, intolerable to a Latin King, and asked <br>Lara to accompany him while he relieved Vandergroen of his Ford <br>Escort (which was adorned with tire rims that Perry fancied). <br> The two men asked Vandergroen to take a ride with them. <br>When he agreed, Perry (who had brought along a sawed-off shotgun) <br>sat behind Vandergroen in the car, while Lara sat in the front <br>passenger seat. At Perry's request, Vandergroen drove to a <br>deserted neighborhood. Perry then told Vandergroen to slow or stop <br>the vehicle, and, when Vandergroen complied, Perry shot him. Perry <br>and Lara shoved Vandergroen's body into the street and returned to <br>a Latin King hangout, where they were seen with blood and brain <br>matter on their clothing. The two later burned and abandoned the <br>car. <br> On these facts, the jury convicted Lara of carjacking in <br>violation of 18 U.S.C. 2119(3). Lara attacks the sufficiency of <br>the evidence from an odd angle. He does not allege that the <br>government failed to prove that he committed specific elements of <br>the offense, but, rather, claims that the only witness whose <br>testimony implicated him in the carjacking (Pacheco) was <br>unreliable. This attack is impuissant. In the usual case, the <br>credibility of witnesses is for the jury, see Carroll, 105 F.3d at <br>743; United States v. Laboy-Delgado, 84 F.3d 22, 27 (1st Cir. <br>1996), and there is nothing here that mitigates against the <br>conventional application of this rule. There were conflicting <br>accounts of Lara's participation in the carjacking, and the jury <br>was free to decide which, if any, to believe. <br> Lara has a fallback position. Perry had given testimony <br>exculpating Lara from complicity in the Vandergroen carjacking. <br>See supra Part III(C). Lara hypothesizes that Perry's disgusting <br>courtroom conduct, see United States v. Perry, 116 F.3d 952, 954 <br>(1st Cir. 1997), unfairly undercut this exculpatory testimony. <br>But there is simply no evidence that Perry's conduct prejudiced the <br>jury against Lara. When a defendant presses a plausible claim of <br>spillover effect, differentiated verdicts often constitute tangible <br>evidence of the jury's enduring ability to distinguish between the <br>culpability of codefendants. See, e.g., United States v. Flores- <br>Rivera, 56 F.3d 319, 326 n.2 (1st Cir. 1995). This case is of that <br>stripe: even after Perry's dramatic display, the jury acquitted <br>Lara, but convicted Perry, on several counts, including the charge <br>of using or carrying a firearm during the Vandergroen carjacking. <br>Then, too, the trial judge instructed the jurors soon after Perry's <br>gaffe that they should draw no adverse inference therefrom against <br>any defendant (Perry included). See Perry, 116 F.3d at 954. This <br>timely instruction further supports the conclusion that Lara was <br>not prejudiced by Perry's actions. See Richardson v. Marsh, 481 <br>U.S. 200, 206 (1987) (remarking "the almost invariable assumption <br>of the law that jurors follow their instructions"); United States <br>v. Sepulveda, 15 F.3d 1161, 1185 (1st Cir. 1993) (similar). <br> To sum up, because the evidence allowed a rational jury <br>to find Lara guilty beyond a reasonable doubt of both witness <br>intimidation and carjacking, the district court did not err in <br>refusing to grant an instructed verdict of acquittal on either or <br>both of these counts. <br> B. Boyd's and Roman's Challenge. <br> Boyd and Roman challenge the sufficiency of the evidence <br>to support their convictions for committing a violent crime (the <br>murder of Jose Mendez) in aid of racketeering. The relevant facts, <br>stated from the perspective most conducive to the verdict, are as <br>follows. <br> On Saturday, November 5, 1994, several members of the <br>Providence Latin Kings attended a party in Connecticut. On that <br>occasion, they learned that their Connecticut counterparts were at <br>war with a rival gang, the Netas. Two Connecticut Latin Kings <br>returned to Rhode Island with the Providence contingent. One of <br>them, Peter Natal, later became a confidential informant. <br> At a meeting of the Providence chapter held on Monday, <br>November 7, Sepulveda told his cohorts about the war in <br>Connecticut. Immediately after this announcement, the officers of <br>the Providence chapter (including, at least, Sepulveda, Boyd, and <br>Roman) went into executive session and discussed a plan to kill the <br>leader of the Netas in Providence. This strategy was hatched on <br>the theory that, in Sepulveda's words, "without the head, the body <br>falls." The executive session ended on this note, the main meeting <br>resumed, and Sepulveda asked the general membership to forget what <br>he had said about a war. <br> Natal attended the executive session. He testified that, <br>during this discussion, the Latin King hierarchs noted the near- <br>dearth of local Netas; Providence was virgin territory and there <br>were only four full members of the Neta gang at that point. Mesa <br>confirmed this assessment. He testified that "there was [sic] very <br>few Netas out here. There's probably like four Netas. Each one <br>had a position [i.e., held an office in the gang]." Initially, <br>there was confusion over whether Jose Mendez might be the president <br>of the Providence Netas, but a consensus gradually developed in <br>favor of the view that Winston Navarette held that office. <br> After the meeting adjourned, several participants <br>repaired to the dwelling that Roman shared with his then-paramour, <br>Tia Barboza. A small group, including Boyd and Roman, met in Tia's <br>bedroom and finalized the plan to kill the head of the Netas. Four <br>members were assigned responsibility for carrying out the <br>assassination: Perry, Santi, Hakim Davis, and Juan Garcia. <br>Witnesses stated that Boyd and Roman each chose at least one member <br>of the "hit squad." The next day, Roman distributed weapons from <br>the gang's cache to the appointees. <br> In retrospect, it appears that, at the crucial time, the <br>Providence Netas had four officers: Winston Navarette (president), <br>Jose Mendez (vice-president), Edgar Pichardo (disciplinarian), and <br>Maquiva Mendez (secretary). The Netas lived together. When the <br>hit squad arrived at their abode, they asked for Navarette and were <br>informed that he was out of town. The trial testimony was <br>unequivocal that when the Neta president was away, the vice- <br>president assumed his responsibilities. Thus, Jose Mendez, <br>nominally the Neta vice-president, was the head of the Netas in <br>Navarette's absence. <br> Upon learning of Navarette's unavailability, the crew <br>invited Jose Mendez, who was wearing his Neta colors at the time, <br>to smoke some marijuana. The group, now five in number, walked to <br>a nearby field where Perry shot Mendez from behind, killing him. <br>The four Latin Kings fled. <br> Boyd claims that this evidence failed to link him <br>sufficiently to Mendez's murder. He argues that even the most <br>generous view of the evidence fails to support the jury's verdict <br>because there was no evidence (1) that the plan was to kill <br>whomever was the Neta leader, (2) that the shooter was aware that <br>his target was the de facto leader, or (3) that the shooter knew <br>Mendez had become the de facto leader of the Netas in Navarette's <br>absence. <br> Before coming to grips with these arguments, we address <br>a procedural issue. Roman did not raise the sufficiency question <br>in his opening brief, but, after perusing Boyd's brief, sought <br>leave from this court to adopt the argument. By order entered <br>February 1, 1999, we granted this request provisionally, subject to <br>a final determination after the case was heard. <br> The standard for adoption of arguments by reference <br>involves a determination of whether the arguments are "readily <br>transferrable from the proponent's case to the adopter's case." <br>David, 940 F.2d at 737. We ordinarily look with disfavor upon <br>attempts to adopt factbound arguments by reference. See, e.g., <br>Castro-Lara, 970 F.2d at 982; David, 940 F.2d at 737. Under the <br>peculiar circumstances of this case, however, we allow the <br>adoption. Roman, like Boyd, moved for judgment of acquittal below, <br>and relied on the same three grounds in support of his claim that <br>the evidence was insufficient to convict him of Mendez's murder. <br>More importantly, although the evidence as to each varies on the <br>first two grounds, Boyd's arguments are generally relevant to <br>Roman, who, like Boyd, was a part of the officers' meetings, but <br>not a member of the crew sent to carry out the execution. Thus, <br>the David "ready transferability" standard is satisfied and we will <br>entertain the insufficiency claims of both appellants. <br> Boyd's and Roman's first two points are easily <br>dispatched. Davis, a first-hand participant, described the plan <br>and the implementing order as being aimed at killing the head of <br>the Netas. This order was given in the presence, and with the <br>acquiescence, of Boyd and Roman. It was designed as a preemptive <br>strike on the Neta leadership. <br> Although some of the witnesses whose testimony the <br>government hawks had made prior inconsistent statements, the same <br>is true for several witnesses whose testimony Boyd and Roman <br>espouse. The jurors were entitled to choose which witnesses to <br>credit, and, in the posture of a sufficiency-of-the-evidence <br>challenge, we must assume that they credited those witnesses whose <br>testimony lent support to the verdict. See Carroll, 105 F.3d at <br>742-43; Laboy-Delgado, 84 F.3d at 27-28. At any rate, jurors are <br>not required to discard testimony that appears to contain internal <br>inconsistencies, but may credit some parts of a witness's testimony <br>and disregard other potentially contradictory portions. See United <br>States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994). <br> The third deficiency to which Boyd and Roman allude is <br>more nettlesome. The government offered no direct evidence that <br>the shooter (Perry) knew of Jose Mendez's position as de facto <br>leader of the Netas at the time of the murder. Still, direct <br>evidence is not essential to proof of criminality. See id. at 706- <br>07; Castro-Lara, 970 F.2d at 981; United States v. Ortiz, 966 F.2d <br>707, 711 (1st Cir. 1992). In this instance, the circumstantial <br>evidence is telling: the proof (particularly the testimony of <br>Natal and Mesa) showed that at least some Latin Kings knew there <br>were only four full-fledged members of the Netas in Providence, and <br>that all of them were officers of the gang. Mendez's name was <br>bandied about at the executive session (which both Boyd and Roman <br>attended) as the possible head of the Netas. Although consensus <br>later formed around the idea that Navarette occupied the top rung <br>on the ladder, the discussion of Mendez's involvement strongly <br>suggests that the Latin King leadership was keenly aware that he <br>held a relatively high position in the Netas. <br> We have held before that evidence of events that occur <br>subsequent to the commission of a crime can shed light upon an <br>actor's guilt vel non. See, e.g., United States v. Sutton, 970 <br>F.2d 1001, 1007 (1st Cir. 1992); United States v. Mena, 933 F.2d <br>19, 25 n.5 (1st Cir. 1991). In this instance, evidence of the <br>Latin King leaders' reaction to the murder bolsters the <br>government's case. Davis recalled that Sepulveda, then the Latin <br>King president, responded to the report of Mendez's demise by <br>remarking that the hit squad had done a good job. Moreover, the <br>Latin Kings did not mount a manhunt for Navarette after the Mendez <br>murder because, in Davis's words, their "mission" had been <br>completed successfully. <br> Jurors are entitled to draw reasonable inferences from <br>proven facts. On this record, we think that two key inferences are <br>supportable. First, the jury reasonably could have inferred that <br>Perry was aware of Mendez's leadership role in the Netas. Second, <br>the jury reasonably could have inferred that when the hit squad <br>encountered Mendez, its members believed that he was likely the <br>highest available member of the Neta leadership and killed him for <br>that reason, in compliance with the order that had issued. Boyd's <br>and Roman's alternate hypothesis that Navarette's absence foiled <br>the plot, and that Perry killed Mendez in order to satisfy his <br>bloodlust was not implausible, but the jury rejected it in favor <br>of a finding that Perry pulled the trigger to effect the directive <br>that had been handed down by the Latin King hierarchs. This choice <br>fell well within the jury's proper purview. See United States v. <br>Gifford, 17 F.3d 462, 467 (1st Cir. 1994) (noting that the evidence <br>"need not rule out other hypotheses more congenial to a finding of <br>innocence" in order to defeat a Rule 29 motion). Thus, we conclude <br>that the evidence suffices to sustain the disputed convictions. <br>See Bourjaily v. United States, 483 U.S. 171, 179-80 (1987) <br>(explaining that "individual pieces of evidence, insufficient in <br>themselves to prove a point, may in cumulation prove it"); Stewart <br>v. Coalter, 48 F.3d 610, 615-16 (1st Cir. 1995) (discussing <br>permissible inferences in criminal cases). <br>V. JURY INSTRUCTIONS <br> Lara offers several complaints about the district court's <br>jury instructions on the carjacking count. Only one of these <br>points deserves comment. <br> Tracking the applicable statute, 18 U.S.C. 2119(3) (see <br>supra note 5), the court instructed the jury that it must find four <br>elements in order to convict: (1) that the named defendants (Lara <br>and Perry), by means of force or violence, (2) took from the person <br>or presence of Vandergroen a motor vehicle (3) that previously had <br>been transported, shipped, or received in interstate or foreign <br>commerce, and (4) that one or both of the named defendants <br>possessed a firearm at the time. Lara's most fervent challenge, <br>properly preserved, concerns the court's elaboration upon the <br>fourth element. The court stated: <br> [T]he government must prove that at least one <br> of the two defendants was in possession of a <br> firearm. A person has possession of something <br> if the person knows of its presence and has <br> physical control of it, or has the power and <br> intention to control it. More than one person <br> can be in possession of something if each <br> knows of its presence and has the power and <br> intention to control it. <br> <br>Lara condemns this instruction because it allowed the jury to <br>convict him although only Perry actually possessed a firearm. And <br>to illustrate the harmfulness of this error, Lara points out that <br>the jury acquitted him on a related charge of using or carrying a <br>firearm during a crime of violence, 18 U.S.C. 924(c). <br> In the face of properly preserved objections, we evaluate <br>challenged jury instructions under an abuse of discretion rubric, <br>considering the charge as a whole. See DeStefano, 59 F.3d at 2-3; <br>United States v. Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987). So <br>viewed, Judge Lisi's possession instruction passes muster. The <br>indictment charged Lara not only as a principal in the carjacking, <br>but also as an aider and abettor under 18 U.S.C. 2. In her <br>instructions, Judge Lisi described the workings of the latter <br>statute in considerable detail, stating, inter alia, "you may find <br>a defendant guilty of the offense charged if you find beyond a <br>reasonable doubt that the government has proven that another person <br>actually committed the offense with which the defendant is charged, <br>and that the defendant aided, abetted, induced, or procured that <br>person to commit the offense." She later described the carjacking <br>count as charging Perry and Lara with having violated both section <br>2119(3) and section 2. Thus, under the instructions, as long as <br>the jury found that either Perry or Lara intended to take <br>Vandergroen's vehicle by forcible or violent means and carried a <br>firearm to that end, the other defendant could be found guilty as <br>an aider and abettor if he knew of the plan and intended to assist <br>in its accomplishment. This correctly reflects applicable law. <br>See United States v. Oliver, 60 F.3d 547, 551 (9th Cir. 1995), <br>rev'd on other grounds sub nom. Jones v. United States, 119 S. Ct. <br>1215 (1999); United States v. Harris, 25 F.3d 1275, 1278-79 (5th <br>Cir. 1994). <br> The jury's acquittal of Lara on the section 924(c) count <br>does not discredit this conclusion. For one thing, the <br>instructions on that count did not make provision for aider/abettor <br>liability, and, therefore, the verdicts were not inconsistent. For <br>another thing, the two statutes differ in a material respect. <br>Section 2119(3) discusses "possession" of a firearm, while section <br>924(c) discusses "use and carr[iage]." Because the definitions of <br>"use" and "carry" under section 924(c) denote more than mere <br>possession, a jury reasonably can find, without any logical <br>inconsistency, that a defendant who meets the requirements of the <br>possession element under section 2119 does not meet the more <br>rigorous requirements imposed by section 924(c). See Muscarello <br>v. United States, 118 S. Ct. 1911, 1914 (1998) (discussing <br>carriage); Bailey v. United States, 516 U.S. 137, 143 (1995) <br>(discussing use). <br> If more were needed and we do not think that it is we <br>note that Lara's complaint, as framed, seems to arise more from the <br>perceived mismatch between his acquittal under section 924(c) and <br>his conviction under section 2119(3) than from any actual flaw in <br>Judge Lisi's charge to the jury. Thus although Lara disclaims <br>such a theorem we are left with the decided impression that a <br>claim of inconsistent verdicts lies at the heart of this assignment <br>of error. In recent times, we repeatedly have rejected such <br>challenges to criminal verdicts, see, e.g., United States v. <br>Crochiere, 129 F.3d 233, 239 (1st Cir. 1997), cert. denied, 118 S. <br>Ct. 1364 (1998); United States v. Bucuvalas, 909 F.2d 593, 594 (1st <br>Cir. 1990), and nothing about this case differentiates it from the <br>mine-run. <br>VI. CONCLUSION <br> We need go no further. A painstaking review of this <br>amplitudinous record reveals that the appellants were convicted by <br>a properly constituted jury after a full and fair trial, free from <br>reversible error, before a judge who exhibited extraordinary care <br>and patience. Their appeals are without basis in fact or in law. <br> <br>Affirmed.</pre>
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