
USCA1 Opinion

	




                                ____________________       No. 94-1593                               UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                 PASQUALE G. BARONE,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Mark L. Wolf, U.S. District Judge]                                ____________________                                       Before                                Boudin, Circuit Judge,                     Campbell and Bownes, Senior Circuit Judges.                                ____________________            Bernard Grossberg for appellant.            Cynthia A. Young, Attorney, United  States Department of Justice,       with             whom                 Donald                        K.                          Stern, United States Attorney, and Jeffrey Auerhahn,       Assistant United States Attorney, were on brief for appellee.                                ____________________                                    June 6, 1997                                ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant            Pasquale                     G.                       "Patsy"                               Barone and seven co-defendants were charged            in               a                 sixty-five-count superseding indictment with a variety of            RICO1 and other offenses.  The indictment charged Barone with            RICO conspiracy in  violation of 18  U.S.C. S 1962(d)  (Count            One); the underlying substantive RICO offense in violation of            18 U.S.C.  S 1962(c) (Count  Two); conspiracy  to commit  the            murder  of  Vincent  James "Jimmy"  Limoli,  Jr.  in  aid  of            racketeering                         (Count Three), and the murder of Limoli in aid of            racketeering (Count  Four), both  in violation  of 18  U.S.C.            S 1952(B), now codified as amended at 18 U.S.C. S 1959.                      Because of the pendency of the government's  appeal            from the  district court's ruling in  favor of Barone on  his            motion to suppress certain post-arrest statements, see United            States v.  Barone, No. 89-289-WF,  1991 WL  353883 (D.  Mass.            1.  RICO refers to the Racketeer Influenced and Corrupt            Organizations Act, 18 U.S.C. SS 1961-1968.  The provisions            pertinent to this appeal, 18 U.S.C. S 1962 subsections (c)            and (d), read as follows:                           (c) It shall be unlawful for any                      person employed by or associated with any                      enterprise engaged in, or the activities                      of which affect, interstate or foreign                      commerce, to conduct or participate,                      directly or indirectly, in the conduct of                      such enterprise's affairs through a                      pattern of racketeering activity or                      collection of unlawful debt.                           (d) It shall be unlawful for any                      person to conspire to violate any of the                      provisions of subsection (a), (b), or (c)                      of this section.                                         -2-                                          2            Aug.  21, 1991), aff'd,  968 F.2d 1378  (1st Cir. 1992),  the            district                     court                          ordered                                  that Barone be tried separately from his            co-defendants (who,  with  the exception  of  one who  was  a            fugitive at  the  time,  subsequently pleaded  guilty).    On            October 20,  1993,  after a  nine-week  trial, the  case  was            submitted                      to                         the                            jury.                                                                     On October 25, and again on October 27,            1993,  the   district  court  gave   the  jury  a   "modified            Allen charge"  in response  to communications  from the  jury            indicating that it was deadlocked.  On October 28, 1993,  the            district court, acting pursuant  to Federal Rule of  Criminal            Procedure 23(b), dismissed  one of the jurors for just  cause            after                  conducting                            a                              lengthy inquiry into the effect on the juror            and the  jury of the  juror's unsolicited  receipt of  extra-            judicial                     information                                from a Federal Protective Service Officer.            Having determined that the  remaining jurors were capable  of            continuing to deliberate fairly and impartially, the district            court exercised its discretion under Rule 23(b) to allow  the            remaining                      eleven                            jurors                                   to deliberate to a verdict, rather than            declare a mistrial.                        On                         October                                 29, 1993, the eleven-member jury returned            verdicts of guilty as to Counts One through Three, but failed            to agree as to Count  Four, the murder charge.  The  district            court accepted the  jury's verdicts as to Counts One  through            Three  and  declared  a  mistrial  as  to  Count  Four.    On            December                     20,                        1993,                              Barone filed a motion for a new trial, which                                         -3-                                          3            the district court denied on January 25, 1994.  United States            v. Barone, 846 F. Supp. 1016  (D. Mass. 1994).  On April  25,            1994,                  the                      court sentenced Barone to life imprisonment on Count            Three and to twenty years on each of Counts One and Two, with            each sentence  to  be served  concurrently with  the  others.            Barone now appeals his conviction.  We affirm.                                         I.                      The  superseding  indictment  charged  Barone  with            agreeing to participate  and participating  in the  following            predicate                      acts                          of                             racketeering, see United States v. Saccoccia,            58 F.3d 754, 764 (1st Cir. 1995), cert. denied, --- U.S. ---,            116 S.  Ct. 1322 (1996), as  an "associate" of the  Patriarca            Family                   of                      La                         Cosa Nostra (also known as the Mafia; hereinafter            "LCN"), alleged to  be the RICO enterprise: (i) assault  with            intent to  murder, murder  of Anthony  "Dapper" Corlito,  and            conspiracy                       to do the same; (ii) assault with intent to murder,            murder of  Jimmy  Limoli on  behalf  of Vincent  M.  "Vinnie"            Ferrara,                     and                         conspiracy to do the same; and (iii) assault with            intent                   to                      murder Social Services Credit Union ("credit union")            security guard  Kenneth McPhee,  assault with  intent to  rob            Kenneth McPhee and credit  union employee Lucy LoPriore,  and            robbery of Lucy LoPriore of property belonging to the  credit            union.  The indictment  also charged Barone with a number  of            overt acts of the racketeering conspiracy.                                          -4-                                          4                      We summarize the facts relating to these  predicate            acts,                  insofar as relevant to the issues raised in this appeal,            taking the evidence as the jury could permissibly have  found            it,  and  viewing  the  record  and  drawing  all  reasonable            inferences                       in                          the                             light                                   most favorable to the government.  See,            e.g.               ,                  United                         States v. Zannino, 895 F.2d 1, 4 (1st Cir. 1990).                      The testimony of  expert and cooperating  witnesses            established  the existence,  structure,  and  nature  of  the            Patriarca Family -- as  an organized "enterprise" within  the            meaning of 18 U.S.C. S 1961(4), conspiring to and engaging in            loansharking,                         bookmaking, drug trafficking, extortion, murder,            obstruction of  justice, and  other illegal  activity --  and            Barone's                     activities                               and                                   relationships to others as an associate            of  the Patriarca  Family.   See generally  United States  v.            Angiulo, 847 F.2d  956, 973-75 (1st Cir. 1988) (allowing  FBI            agent to  testify as an  expert regarding  the structure  and            operations of the Patriarca Family of LCN, and the nature  of            the defendants' relationships to the organization).                        In the early 1980s, the Patriarca Family was run by            boss  Raymond  Patriarca,  Sr.,  underboss  Gennaro   "Gerry"            Angiulo, consigliere Vittore Nicolo Angiulo, and capo regimes            including Donato F. "Danny"  Angiulo, Samuel S. Granito,  and            Ilario                   M.A.                        Zannino.  When Raymond Patriarca, Sr. died in July            1984,                  Raymond                         Patriarca,                                    Jr. became the boss and William Grasso            became  the underboss.   In the late  1970s and early  1980s,                                         -5-                                          5            Vincent Ferrara  was  an associate  of the  Patriarca  Family            assigned to  the regime of Danny  Angiulo.  In 1983,  Ferrara            became                   a                     "made member" and soldier in Danny Angiulo's regime.2            Barone and  his close friend  Limoli were  associates of  the            Patriarca Family who both wanted to become "made members"  of            the organization, and who  began their efforts to  accomplish            this goal  by selling illegal  fireworks for  Ferrara in  the            1970s.                      Walter  Anthony   Jordan   (hereinafter   "Jordan")            testified for the government  at Barone's trial.  He and  his            brother Chris  Jordan were also  associates of the  Patriarca            Family.  Jordan met Barone  and Limoli in late 1981 or  early            1982.  Barone later married Jordan's sister Kim.  Limoli  was            Barone's                     best                          man                             at                                the                                    wedding and became godfather to Barone            and                Kim's                      child.  Beginning in the summer of 1984, Jordan sold            illegal                    fireworks,                              giving the money from the sales to Limoli or            Barone.  Jordan testified  that Barone told him that all  the            2.  According to the government's evidence, an LCN family is            headed by a "boss," with an "underboss" as second in command.             The official counselor or advisor to the family is known as            the "consigliere."  Below the underboss are "capo regimes,"            or captains of the LCN family.  Assigned to each capo regime            are "soldiers," who are "made members" of the family.  An            individual who has been nominated for membership in the            family is a "proposed member," and an "associate" is one who,            although not a "made member," works for or performs services            for the family.  Members and associates are required to obey            their superiors in the family, to obtain permission from            their superiors before engaging in criminal activity, and to            commit criminal acts, including murder, as directed by their            superiors.                                           -6-                                          6            money from these sales went to Ferrara, with Barone receiving            a percentage,  along  with Ferrara's  loyalty.   Jordan  also            testified that  Barone  told  him that  he  needed  Ferrara's            permission                       in order to commit any illegal activities, and that            he was "under [Ferrara's] wing," and would be a "made member"            of the Patriarca Family one day, moving up in the ranks  with            Ferrara.                        One                          of                             the                                 predicate acts of racketeering with which            Barone                   was                       charged                              is                                 the murder of Anthony Corlito, who, along            with Giacomo A. "Jackie" DiFronzo and others, was a member of            a rival  North End gang.   Jordan testified that Ferrara  and            DiFronzo "didn't get along" because DiFronzo had "ripped off"            the Angiulos'  North End card  games during  the late  1970s.            Elizabeth                      DiNunzio,                               Limoli's sister, testified that Limoli told            her that Gerry Angiulo hired Ferrara -- who then enlisted the            aid of Limoli -- to kill DiFronzo because DiFronzo "had a bad            drug problem"  and "was robbing all  the people in the  North            End."   DiNunzio  testified that  Limoli  told her  that,  on            December                     11,                         1977, after fighting with DiFronzo at an Endicott            Street club, Ferrara  shot DiFronzo in the head; that  Limoli            thereafter                       kicked                             DiFronzo in the head; and that the two placed            DiFronzo in a chair and set the chair and the club on fire.                      Jordan testified  that Corlito  swore vengeance  on            Ferrara  for the  murder of  DiFronzo, and  that Corlito  was            murdered by  Ferrara, Limoli, and  Barone on  July 21,  1979.                                         -7-                                          7            According to  Jordan, Barone told  him that  he, Limoli,  and            Ferrara came upon Corlito and his girlfriend on Fleet  Street            and                started                        shooting                                at                                   Corlito.  After Ferrara left the scene,            Limoli                   continued to fire at Corlito and Barone urged Limoli to            leave.  Eventually, Barone and Limoli ran to Hanover  Street,            where they got into a car and drove off.  DiNunzio  testified            that                 Limoli                        told                            her                                that Ferrara paid Limoli and Barone $1,000            each for killing Corlito.                      Another racketeering offense with which Barone  was            charged                    is                       the November 5, 1982 robbery of credit union teller            Lucy                 LoPriore                          of                            a                              bag                                  of cash belonging to the credit union as            she and security  guard Kenneth McPhee walked from the  First            National Bank  on Hanover Street to  the credit union at  the            corner of  Parmenter  and Salem  Streets  in the  North  End.            According                      to                         witnesses, the robbery occurred between 10:00 and            10:30 a.m.  and was perpetrated  by two masked  men.  In  the            course of the robbery, McPhee was shot in the calf and in the            neck.  The owner of a Salem Street hardware store saw  Limoli            run down Salem Street from Parmenter Street.                        Jordan testified that Barone  told him that he  and            Limoli were responsible  for the robbery and that Barone  had            shot the security  guard in the neck.   Barone said that  the            stolen cash amounted to $30,000, with Ferrara taking $15,000,            and Limoli and Barone splitting the rest between them.                                          -8-                                          8                      DiNunzio                               testified                                        that,                                              on the morning of the credit            union robbery,  Limoli came to her  house carrying a box  and            asked her for lemon juice, saying that if you wash your hands            with lemon  juice, "they  can't tell  that you  shot a  gun."            According to DiNunzio, after the robbery was reported on  the            noontime news, Limoli admitted to her that he and Barone  had            committed the robbery; that he had shot security guard McPhee            in the  foot; and that  Barone had shot  McPhee in the  neck.            DiNunzio testified that Barone and Chris Jordan later  joined            Limoli                   at                      her house, at which time Barone admitted that he had            shot the guard in the neck.                      Barone was also charged with the murder of  Limoli,            which had its origins in  a plan hatched by Limoli and  Frank            Salemme,                     Jr.                         to commit another in a series of "drug rip-offs,"            executed by passing off wood chips or peat moss as marijuana.            Jordan                   and                      DiNunzio                               testified that in the spring of 1985, while            Limoli was  in Florida,  Salemme, Jr.  and others,  including            Walter Jordan,  went ahead with  the planned rip-off  scheme,            although  Limoli had asked  Salemme, Jr. to  wait for him  to            return to town before "doing the deal."  When Limoli  learned            that                 Salemme, Jr. and his cohorts had completed the rip-off by            delivering peat moss in exchange for a $100,000 down payment,            he               vowed                     to                        get even with Salemme, Jr. for cheating him out of            $35,000.                                         -9-                                          9                      Jordan testified that in September of 1985,  Barone            told  him that Limoli  had stolen a  bag containing cash  and            $100,000                     worth                          of                             cocaine that he believed belonged to Salemme,            Jr., but  which  actually  belonged to  Antonio  L.  "Spucky"            Spagnolo, a Patriarca Family  soldier.  According to  Jordan,            Barone                   told                        him that Limoli gave $30,000 of the stolen cash to            Barone and that Barone kept the cash in his freezer until the            cash                 and                     cocaine were eventually returned.  DiNunzio testified            that Limoli told her that  he took the bag to his  girlfriend            Lena  Chiuchiolo's house; that  he was seen  with the bag  by            Lena's sister Annette, who was Salemme, Jr.'s girlfriend; and            that                 Annette                        told                             Salemme, Jr. what she had seen.  According to            DiNunzio, Limoli told her that the story of his theft of  the            bag                eventually reached Spagnolo, the true owner of the bag, as            well as other, high-level Patriarca Family members.                        Limoli                             told                                 DiNunzio                                          that he was questioned about the            incident in separate meetings  with Samuel Granito and  Frank            Salemme, Sr., and during an alleyway "meeting" with  Salemme,            Jr.,                 Danny                       Angiulo, Ferrara, Spagnolo, and Peter "Doc" Limone.            Limoli  told DiNunzio  that, in  the course  of the  alleyway            meeting, he repeatedly denied taking the bag, but  eventually            admitted                     it                        when                            he                               was                                   told that Annette had seen him with the            bag                and                    had                       told                            Salemme, Jr. about it.  According to DiNunzio,            Ferrara  told Limoli,  "I could  whack you  right here,"  but            "[w]e'll forget about it and let's go on from here."   Limoli                                        -10-                                         10            told                 DiNunzio                         that                              "that's not the way the guys work," and that            he knew that they were going to kill him.                      Jordan testified that Barone told him that, because            he               had                   stolen                         from                              a                                made member of the LCN, "Jimmy got the X,"            meaning                    that                         he                           (Limoli)                                    would no longer be permitted to engage            in LCN activities.  A  week or two later, Barone told  Jordan            that  Ferrara  had ordered  Limoli  killed  because  of  this            incident.                                             According                                to                                   Jordan, he was with Barone when Ferrara            called                   Barone                          at                            home                                 on                                    the evening of October 28, 1985 to say            that                 Limoli                        had                           to                              be                                 killed.  On Barone's instructions, Jordan            called Limoli to set up  a deal involving the sale of  drugs,            with a meeting to take place at about 8:00 p.m. that night at            D'Amore's  Restaurant in the  North End.   The two then  left            Barone's                     house, each carrying gloves and Barone carrying a .38            caliber revolver.                        Jordan testified that, on Barone's instructions, he            called                   Limoli at D'Amore's from the nearby European Restaurant            before  the two  went to  meet  him.   When they  arrived  at            D'Amore's, Jordan went inside to get Limoli, and when  Limoli            came                 out                     of                        the restaurant and saw Barone, he told Jordan that            he               had                   wanted him to come alone.  Limoli then talked privately            with Barone, after which he returned to the restaurant  while            Barone                   and                       Jordan                             left                                  to retrieve Barone's car, which they had            parked  elsewhere.    When  Barone  and  Jordan  returned  to                                        -11-                                         11            D'Amore's,                       Limoli left the restaurant and got into the waiting            car, which then drove off, with Jordan driving.                       Maureen   Karpowicz-DiPietro,   Limoli's    cousin,            testified that, shortly after 8:00 p.m. on October 28,  1985,            she and a friend went with Limoli to D'Amore's, where  Limoli            received a  telephone  call and  then  a visit  from  Jordan.            According                      to                         Karpowicz-DiPietro, Limoli met Jordan outside the            restaurant and  apparently became angry  when he saw  Barone.            Limoli yelled at Jordan but then talked privately with Barone            before returning to  the restaurant.  Jordan and Barone  then            left, returning  to  D'Amore's shortly  after 10:00  p.m.  in            Barone's car.  Karpowicz-DiPietro testified that Limoli put a            cloth napkin in  a brown paper bag,  said "that will do  it,"            asked her to meet him later, and then left the restaurant  to            join Barone and Jordan.  DiNunzio testified that Limoli  told            her that he was going to rob Barone and Jordan that night.                       Jordan testified that, after he parked the car next            to  the cemetery  at the  intersection of  Snowhill and  Hull            Streets, the  three men  got out of  the car.   According  to            Jordan, Barone shot Limoli in  the back of the head at  about            10:25                  p.m.                       as                         the                             three                                   men walked up Hull Street.  When Limoli            fell to the ground,  Jordan grabbed the brown paper bag  that            Limoli was carrying and  then ran back down Hull Street  with            Barone.                                         After they crossed Snowhill Street, Jordan discovered            that the bag contained only cloth napkins.  Jordan  testified                                        -12-                                         12            that, after the  discovery, Barone ran  back up Hull  Street,            followed by Jordan,  and that when he reached Limoli,  Barone            leaned                   over                        him, shouted "Why, Jimmy?" and fired the remaining            bullets into Limoli's  head.  Barone then directed Jordan  to            search Limoli's body for money, which Jordan did, finding and            taking                   a                     wad                        of                           $100                                bills and a .45 caliber gun, both of which            he gave to Barone.  At this point Barone said, "Walter, let's            go,"  and  the  two began  running  back  down  Hull  Street,            eventually                       arriving                               at                                  Barone's house.  While there, Barone put            the murder weapon into a plastic garbage bag, along with  his            clothes                    and                        Jordan's clothes.  The next day, Barone and Jordan            walked out onto a  pier with the bag  and the gun and  Barone            threw them both into Boston Harbor.                                          II.                      Barone argues that Limoli's out-of-court statements            were                 inadmissible hearsay and that the district court erred by            admitting them  over his objection  through the testimony  of            Maureen  Karpowicz-DiPietro  and  Elizabeth  DiNunzio.    The            district                     court admitted the hearsay testimony largely pursuant            to Federal  Rule  of  Evidence 804(b)(3),  which  creates  an            exception to  the  hearsay rule  for statements  against  the            declarant's interest, including penal interest.                         Barone argues that the statements were inadmissible            under                  Rule                      804(b)(3)                                because they were (i) not against Limoli's            penal                  interest; (ii) not sufficiently corroborated by properly                                        -13-                                         13            admitted independent evidence;  and (iii) inadmissible  under            Williamson v. United  States, 512 U.S. 594 (1994), which  was            decided  while  Barone's  appeal  was  pending,  because  the            statements                       are not individually self-inculpatory.  Barone also            objects   to  the   admission  of   Limoli's  statements   on            constitutional grounds, arguing that the introduction of this            evidence                     violated his rights under the Confrontation Clause of            the Sixth Amendment.                                          A.                                         1.                      The  out-of-court statements  of  a  non-testifying            declarant ordinarily  are excluded as  hearsay if offered  to            prove the  truth of the matter  asserted.  See, e.g.,  United            States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993).  The            rule   against   hearsay   reflects   concerns   about    the            trustworthiness of out-of-court statements, arising from  the            fact                 that                     such                          statements are not subject to the tests normally            applied  to in-court  testimony  to ensure  its  reliability.            Exceptions to the hearsay rule permit courts to admit certain            hearsay  statements that  bear  indicia  of  reliability  and            trustworthiness sufficient to overcome these concerns.                      One  such exception  is  Federal Rule  of  Evidence            804(b)(3), which provides that,  if the hearsay declarant  is            unavailable                        to                          testify                                  as an in-court witness (a point which is            not in dispute here), the hearsay rule does not exclude                                        -14-                                         14                      A statement which was at the time of  its                      making so far contrary to the declarant's                      pecuniary or proprietary interest, or  so                      far tended  to subject  the declarant  to                      civil or criminal liability, . . . that a                      reasonable  person  in  the   declarant's                      position                               would not have made the statement                      unless  believing  it  to  be  true.    A                      statement tending to expose the declarant                      to  criminal  liability  and  offered  to                      exculpate the  accused is not  admissible                      unless                             corroborating circumstances clearly                      indicate  the   trustworthiness  of   the                      statement.                      Barone                             moved                                   in                                                                        limine                                                                                      to exclude Limoli's statements            from                 DiNunzio's testimony, arguing, as he does on appeal, that            the  statements  do  not  meet  the  "against  interest"  and            "corroborating circumstances" requirements of Rule 804(b)(3),            and that the admission of these statements would violate  his            confrontation                         rights.  Barone raised no objection in limine to            the testimony of Karpowicz-DiPietro.                        The  district  court  ruled  from  the  bench  that            DiNunzio's proposed testimony regarding what Limoli told  her            about his  criminal  activities, including  those  activities            undertaken with Barone and others, was admissible under  Rule            804(b)(3) as interpreted  by this court  in United States  v.            Seeley                 ,                    892                        F.2d 1 (1st Cir. 1989), and that admission of this            testimony would  not violate the  Confrontation Clause.   The            court found that Limoli was unavailable; that his  statements            regarding  his  participation in  crimes  on  behalf  of  the            Patriarca Family  were against his  penal interest; and  that            sufficient corroboration and indicia of reliability  attended                                        -15-                                         15            the making  of the  statements.   The court  also ruled  that            Federal Rule of Evidence  403 did not operate to exclude  the            disputed evidence.                      The  district court  found  that  the  context  and            circumstances  in which  the  hearsay  statements  were  made            demonstrated                         their trustworthiness and reliability.  The court            reasoned  that Limoli  had made  the statements  to a  person            (DiNunzio) with whom he had a very close relationship, rather            than to the  police, and that he  therefore had no motive  to            curry                  favor                        with law enforcement officials and no incentive to            diminish his role  in the criminal activity described in  the            statements                       by                         shifting                                  blame to Barone or to others.  The court            also                 found                       that the detailed nature of the statements, the in-            court                  testimony                           of                              Walter Jordan and others, and other evidence            (e.g.,   evidence  lawfully   obtained   through   electronic            surveillance)  satisfied   the  corroborating   circumstances            requirement                        of Rule 804(b)(3) and supplied the "particularized            guarantees of trustworthiness" required by the  Confrontation            Clause.    In addition,  while  noting  that,  under  Seeley,            DiNunzio's  credibility was  not  part of  the  admissibility            analysis but was a question for the jury, the district  judge            nevertheless                         found                              that                                   DiNunzio had no reason to cast blame on            Barone or to exculpate herself.                           The court recognized  that DiNunzio arguably  could            have                 been                      motivated to fabricate testimony by a desire to seek                                        -16-                                         16            revenge for her brother's murder, but found it to be unlikely            that someone who grew up  in the North End, as DiNunzio  did,            would falsely accuse  Ferrara (who was well known and  widely            reputed                    to                       be a dangerous Mafia killer) or his associates, and            that  DiNunzio related  to  law enforcement  authorities  the            essential elements of the challenged testimony before  Barone            and                Ferrara                        were apprehended.  The court concluded that issues            such                 as                   DiNunzio's                              possible motive to fabricate ultimately went            to  her credibility  (a jury  question), rather  than to  the            trustworthiness  of the  hearsay  statements (a  question  of            admissibility                          of                            evidence to be decided by the court), and that            DiNunzio could be cross-examined on these matters.                      The                          district                                  judge                                        concluded his ruling by cautioning            that,                  although                           he                             would                                   admit the testimony generally, it would            be               necessary                         to "go statement by statement to see if there are            parts of it that are inadmissible."                                         2.                      Before  proceeding  to  our  analysis  of  Barone's            evidentiary  challenge,  we must  iron  out  a  few  wrinkles            concerning the extent to  which Barone may be deemed to  have            preserved the issue  for appeal, and the related question  of            what  standard  of review  under  Federal  Rule  of  Criminal                                        -17-                                         17            Procedure 52  -- harmless error or  plain error -- should  be            applied to this issue on appeal.3                       At                         trial,                               Barone                                      objected at the outset of Karpowicz-            DiPietro's testimony (without stating the grounds), and  this            objection  led  to a  side-bar  conference  that  included  a            discussion  of the  admissibility of  Limoli's statements  as            declarations  against penal  interest.    After  hearing  the            government's                         outline                                of                                   Karpowicz-DiPietro's proposed testimony            and                briefly                       entertaining                                    argument by both parties, the district            court  ruled that  Limoli's  statements  were  admissible  as            declarations against penal interest, but that his  statements            regarding what Ferrara  reportedly said to  him would not  be            allowed.    Barone  made  no  further  hearsay  objection  to            Karpowicz-DiP                        ietro's testimony, and failed altogether to renew            his objection to the admission of Limoli's statements through            DiNunzio's testimony, although  he objected several times  on            other grounds.                      We  find  Barone's  contemporaneous  objection   to            Karpowicz-DiPietro's                                 test                                   imony to be sufficient to preserve the            3.  Federal Rule of Criminal Procedure 52 provides as            follows:                           (a)  Harmless Error.  Any error,                      defect, irregularity or variance which                      does not affect substantial rights shall                      be disregarded.                           (b)  Plain Error.  Plain errors or                      defects affecting substantial rights may                      be noticed although they were not brought                      to the attention of the court.                                        -18-                                         18            hearsay                    objection as to her testimony, and therefore the issue            is subject  to harmless error  review under  Federal Rule  of            Criminal  Procedure 52(a).    The question  whether  Barone's            objection                      was properly preserved as to DiNunzio's testimony is            a different matter,  however, because Barone did not, as  our            case law requires, renew his hearsay objection at trial.4                        We have  repeatedly held that  a "motion in  limine            without                    subsequent,                               contemporaneous objection at trial . . . is            ordinarily insufficient to preserve an evidentiary ruling for            appeal," and that,  absent a timely  objection at trial,  our            review                   is                      solely                            for                                plain error under Federal Rule of Criminal            Procedure 52(b).  United States v. Reed, 977 F.2d 14, 17 (1st            Cir. 1992).  See United  States v. Lombard, 72 F.3d 170,  189            (1st  Cir. 1995).   Our case law  thus directs that  Barone's            objection                      to                        DiNunzio's                                   testimony ordinarily would be deemed to            have                 been                      forfeited                               and                                   therefore reviewable on appeal only for            plain                  error.                          But the question whether harmless or plain error            applies  is more  difficult here  than in  the ordinary  case            because Barone's challenge  in this court is based, in  part,            upon the narrowing interpretation of Rule 804(b)(3) set forth            4.  Barone asserts that DiNunzio's testimony as to Limoli's            statements was admitted over his objection, citing his motion            in limine to limit or exclude this testimony.  Barone does            not direct our attention to any hearsay objection to            DiNunzio's testimony at trial and our review of the            transcript reveals none.                                        -19-                                         19            in               Williamson                         v. United States, 512 U.S. 594 (1994), which was            decided while this appeal was pending.                        It                         seems                               clear                                    that                                         Barone benefits from the new rule            announced in Williamson because direct review was pending  at            the                time                     it                       was                           decided.                                     See Johnson v. United States, No. 96-            203, 1997  WL 235156,  *5 (U.S.  May 12,  1997); Griffith  v.            Kentucky, 479 U.S. 314, 328 (1987); Hines v. Davidowitz,  312            U.S.                 52,                     60                        (1941); United States v. Melvin, 27 F.3d 703, 706-            07 n.4  (1st Cir.  1994).   Less  clear is  whether  Barone's            forfeited hearsay objection -- to the extent that it turns on            the application  of the rule  announced in  Williamson --  is            subject                    to                      harmless                               error or plain error review.  After all, it            seems unfair to fault Barone for failing to raise at trial an            objection                      based upon a rule that was not announced until after            the                trial                      was                         concluded.                                     See United States v. Collins, 60 F.3d            4, 7 (1st Cir. 1995).                      The question of  what standard  applies "where  the            error was unclear at the  time of trial but becomes clear  on            appeal because  the applicable  law has  been clarified"  was            specifically reserved by the Supreme Court in its explication            of               the                   plain                        error                              standard in United States v. Olano, 507 U.S.            725, 734 (1993).   In the recently decided Johnson v.  United            States                 ,                    1997                         WL 235156, however, the Supreme Court applied the            Olano plain error test where the petitioner failed timely  to            object at  trial,  based upon  a  right announced  in  United                                        -20-                                         20            States v. Gaudin, 515 U.S. ---, 115 S. Ct. 2310 (1995), which            was decided while his case was pending on direct appeal.                      Olano                                                      holds                                  that, in order for an appellate court to            correct an error not raised at trial, it must first find that            there  is  "'error'  that  is  'plain'  and  that  'affect[s]            substantial  rights.'"  507  U.S. at 732.   When these  three            elements are satisfied, an  appellate court may exercise  its            discretion to correct the error under Rule 52(b) only if  the            forfeited error "'seriously affect[s] the fairness, integrity            or public reputation  of judicial proceedings.'"  Id. at  736            (quoting                     Unit                        ed States v. Atkinson, 297 U.S. 157, 160 (1936)).                      In Johnson, the Court concluded that the petitioner            was entitled to  the retroactive application of the new  rule            announced in Gaudin, and therefore that the "error" prong  of            the Olano test was satisfied.  Johnson, 1997 WL 235156, at *5            (citing                    Griffith                                                      v.                               Kentu                                   cky, 479 U.S. at 328).  The Court then            held                 that                      "in a case such as this -- where the law at the time            of trial was settled and  clearly contrary to the law at  the            time                 of                    appeal -- it is enough that an error be 'plain' at the            time of appellate consideration," and that, by this analysis,            the Gaud in error met  the "plain" prong  of the Olano  test.            Johnson                  ,                     1997 WL 235156, at *6.  Without deciding the question            whether the error  had affected the petitioner's  substantial            rights --  the third  prong of the  Olano test  -- the  Court            declined to notice the  error under Rule 52(b) on the  ground                                        -21-                                         21            that, even assuming that  the "substantial rights" prong  was            satisfied, there was  no basis for concluding that the  error            "seriously  affect[ed]  the  fairness,  integrity  or  public            reputation                       of judicial proceedings."  Johnson, 1997 WL 235156,            at *7.                      Although Johnson  does not  purport to  do so,  the            conclusion                       appears                               to                                 us                                    to be inescapable that Johnson answers            the                question                         left open in Olano and that, under Johnson, plain            error                  review                         applies in the circumstances presented here, even            to the extent  that the resolution  of Barone's challenge  to            DiNunzio's testimony turns on the application of the rule  of            Williamson.  In all  events, our review leads us to  conclude            that                 Barone's                         challenge                                   would not have succeeded even under the            harmless error standard  because we find that, to the  extent            that                 the                     district court erred in admitting hearsay evidence --            under Williamson or otherwise -- the error(s) did not  affect            the                outcome                        of                          the                              trial, and therefore did not affect Barone's            substantial rights.    See Olano,  507  U.S. at  734;  United            States                                    v.                      Marder                          ,                             48                                F.3d 564, 571 (1st Cir.), cert. denied, --            - U.S. ---, 115 S. Ct. 1441 (1995).                                         3.                      In Williamson v.  United States, the Supreme  Court            clarified the  scope of  Rule 804(b)(3)  for statements  that            inculpate the defendant  as well as subject the declarant  to            criminal  liability.    At   issue  in  Williamson  was   the                                        -22-                                         22            admissibility  of hearsay  statements made  by the  declarant            Harris,                    who                        had been arrested after police found large amounts            of cocaine in the car he was driving, and who made statements            to               a                 DEA                     agent                          while                                in                                   custody that indicated that the cocaine            belonged to Williamson.  512 U.S. at 596-97.                        The Court first considered the question of what  is            meant by  "statement" in light  of the  principle that  "Rule            804(b)(3)                      is                         founded on the commonsense notion that reasonable            people, even reasonable people who are not especially honest,            tend  not to  make  self-inculpatory statements  unless  they            believe them to be true."   512 U.S. at 599.  Reasoning  that            this principle  points  clearly  to a  narrow  definition  of            "statement"                        as                           "a                             single                                    declaration or remark," rather than to            a broad definition as "a report or narrative," id., the Court            concluded as follows:                      In our view, the most faithful reading of                      Rule 804(b)(3) is that it does not  allow                      admission     of     non-self-inculpatory                      statements,                                  even if they are made within a                      broader narrative that is generally self-                      inculpatory.  The district court may  not                      just                           assume                                  for purposes of Rule 804(b)(3)                      that  a  statement  is   self-inculpatory                      because                              it                                 is part of a fuller confession,                      and this  is  especially  true  when  the                      statement implicates someone else.            512 U.S. at 600-01.                      The                          Court                                explained                                         that                                              "[t]he fact that a statement            is self-inculpatory does make it more reliable; but the  fact            that                 a                   statement is collateral to a self-inculpatory statement                                        -23-                                         23            says  nothing  at   all  about  the  collateral   statement's            reliability."   512 U.S.  at 600.   Thus, the Rule  804(b)(3)            inquiry  "is always  whether the  statement was  sufficiently            against  the declarant's  penal interest  'that a  reasonable            person in the  declarant's position would  not have made  the            statement unless believing it to be true,' and this  question            can  only  be  answered  in  light  of  all  the  surrounding            circumstances."  512  U.S. at 603-04  (quoting Fed. R.  Evid.            804(b)(3)) (footnote omitted).                      At oral argument, counsel for Barone  characterized            Williamson as standing  for the  proposition that  statements            against                    interest                            that                                 implicate anyone other than the declarant            are not  admissible  under Rule  804(b)(3), arguing  that  "a            statement                      that shifts the blame to another person has no basis            for                reliability and should not be admissible under the hearsay            exception."  While it  is probably true in the ordinary  case            that a  statement  that shifts  blame  to another  should  be            regarded as unreliable, we do not accept Barone's  contention            that                 Williams                        on creates a per se bar to any and all statements            against interest that also implicate another; nor do we  find            that any of the hearsay challenged here shifts blame from the            declarant Limoli to anyone else.                       Far from adopting a per se rule against  statements            inculpating another, the Court stated that a totality of  the            circumstances  test  should  be  applied  to  the  particular                                        -24-                                         24            statement at issue in order to determine whether it  comports            with                 the                     rationale                              upon                                   which Rule 804(b)(3) is premised -- the            assumption that  declarations against  interest are  reliable            because people do not  make such statements unless  believing            them to be true.   512 U.S. at  603-04.  A statement  against            penal                  interest                           is                             not                                 rendered inadmissible "merely because the            declarant  names another  person  or  implicates  a  possible            codefendant."   Williamson,  512  U.S. at  606  (Scalia,  J.,            concurring); see id.  at 603.  Indeed,  the Court used as  an            example                    of                       an admissible statement against penal interest "Sam            and I went to Joe's house," 512 U.S. at 603, a statement that            clearly implicates a person other than the declarant.5                        In addressing  the  issue under  the  Confrontation            Clause,  the  Second  Circuit  has  held  that  a   statement            inculpating both  the  declarant  and the  defendant  may  be            sufficiently                         reliable as to be admissible in the circumstances            that                 obtain                        here                            --                               i.e., where the statement is made in a non-            custodial                      setting to an ally, rather than to a law enforcement            official, and where the circumstances surrounding the portion            of the  statement that  inculpates the  defendant provide  no            reason to suspect that  this portion of the statement is  any            less  trustworthy  than  the  portion  that  inculpates   the            5.  The Court reasoned that this statement "might be against            the declarant's interest if a reasonable person in the            declarant's shoes would realize that being linked to Joe and            Sam would implicate the declarant in Joe and Sam's            conspiracy."  512 U.S. at 603.                                        -25-                                         25            declarant.  See United States v. Sasso, 59 F.3d 341, 349  (2d            Cir. 1995); United States  v. Matthews, 20 F.3d 538, 546  (2d            Cir. 1994).   We  find this  reasoning to  be persuasive  and            equally  applicable  to a  Rule  804(b)(3)  analysis  of  the            reliability of the statements challenged here.                        Finally,  applying  Williamson's  instruction  that            courts  must determine  the  admissibility of  statements  by            evaluating  them  in   context  and  in   view  of  all   the            circumstances,                           512                              U.S.                                   at 603-04, we find that Barone's blame-            shifting concerns are not implicated here because none of the            challenged testimony shifts  blame or  exculpates either  the            declarant Limoli or the defendant Barone.  And, to the extent            that                 any                     of                       the                           challenged statements may be so read, the force            of               the                   argument                           is                              blunted by the fact that the statements were            not made to law enforcement officials in a custodial setting,            as               in                  Williamson                                                      (and                                 as                                    in nearly all of the cases relied upon            by               Barone),                        but to close relatives of the declarant.  On these            facts,                   it                     cannot                            seriously be argued that any of the challenged            statements                       implicate                                the                                    primary concern raised by Barone, that            they                 were                      intended                              to                                 shift the blame for criminal conduct from            the declarant  Limoli to another or  to curry favor with  law            enforcement officials.                                          4.                      We  now consider  the  testimony  to  which  Barone            objects, bearing in mind the following additional  standards.                                        -26-                                         26            First, the district court's construction of evidentiary rules            is a question  of law which  we review de  novo.  See  United            States v. Omar, 104 F.3d  519, 522 (1st Cir. 1997); see  also            United States v. Costa,  31 F.3d 1073, 1077 (11th Cir.  1994)            (the                 question whether a statement is against penal interest is            a  question  of  law,  reviewable  de  novo).    Second,  the            application of  an evidentiary rule  to particular facts  "is            normally tested by an  'abuse of discretion' standard,  which            favors the prevailing  party."  Omar, 104  F.3d at 522.   See            United                   States v. Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996),            cert.                                  denied                       ,                         ---                             U.S.                                  ---, 117 S. Ct. 963 (1997).  Finally, we            may affirm  the district court's  evidentiary rulings on  any            ground apparent from the record on appeal.  See United States            v.               Alzanki                     ,                       54                          F.3d                               994,                                    1008 (1st Cir. 1995), cert. denied, --            - U.S. ---, 116 S. Ct. 909 (1996).                      Barone contends that the district court abused  its            discretion in admitting  Limoli's statements to DiNunzio  and            Karpowicz-DiPietro regarding  his criminal  associations  and            activities during the 1970s  and 1980s because the  testimony            does not  meet  the  requirements for  admission  under  Rule            804(b)(3).  Barone does not object to particular  statements,            but complains generally that the statements were not  against            Limoli's                     penal interest, and that the "rambling narratives" of            DiNunzio and Karpowicz-DiPietro contained statements that are                                        -27-                                         27            inadmissible                         under                              Willia                                   mson because they are not individually            self-inculpatory.                        At trial,  the  district court  did not  admit  the            hearsay                    testimony                             of                                these witnesses statement by statement, as            Williamson  would  seem to  direct;  nor  did  Barone  object            statement by  statement.6   Nevertheless, our  review of  the            record leads  us to agree with  the government that the  vast            majority of the challenged testimony was admissible under the            declarations                         against                                interest exception; that other portions of            the testimony were admissible under other hearsay exceptions,            or               as                  the                     personal                              knowledge of the in-court witness; and that,            to               the                   extent                         that                              the                                  district court erred in admitting any of            the challenged  testimony, the  error(s) did  not affect  the            6.  In his ruling on Barone's motion in limine, the district            judge stated that he would deal with the admissibility of the            disputed testimony "statement by statement to see if there            are parts of it that are inadmissible," an approach that is            fully consistent with Williamson.  During the colloquy with            counsel that followed his ruling, the judge also invited            Barone's counsel to object to specific portions of DiNunzio's            proposed testimony, which Barone's counsel declined to do,            given the court's ruling on the motion.  During this            colloquy, the judge also stated, however, that "the mere fact            that some of this comes in doesn't mean everything comes in.             But if they're the same conversation and . . . they tend to            corroborate even though they're not in isolation against his            penal interests, I'll let them in," an approach that is            consistent with this court's precedents at the time of the            ruling, see United States v. Barrett, 539 F.2d 244, 252-53            (1st Cir. 1976), but facially inconsistent with Williamson.                                          -28-                                         28            outcome                    of                       the                          trial                                and                                    so did not affect Barone's substantial            rights.7                      As to Barone's  contention that the district  court            violated Williamson and  abused its  discretion in  admitting            Karpowicz-DiP                        ietro's testimony recounting what Limoli told her            about the events that ultimately led to his murder, we  agree            with the government  that any portions of the testimony  that            were not admissible  as declarations  against Limoli's  penal            interest were otherwise  admissible because they fall  within            another                    hearsay exception (e.g., Rule 803(3)), or because they            are                not                    hearsay                           at                              all,                                   but rather reflect Karpowicz-DiPietro's            personal knowledge.                      As to DiNunzio's testimony regarding the murder  of            Jackie                   DiFronzo,                            Barone                                   asserts that Limoli's confession to the            murder is the only statement against his penal interest.  The            government responds  that Limoli's  statements regarding  why            DiFronzo was killed, on whose orders, and his statement  that            Ferrara  had enlisted  Limoli's  help are  also  declarations            against                    Limoli's penal interest vis-a-vis the Patriarca Family            conspiracy to  engage  in a  pattern  of racketeering.    The            7.  The government does not argue that Barone's objection to            DiNunzio's testimony was forfeited for failure to renew at            trial the objection he made in limine, but assumes that our            review is under the harmless error standard.  The government            asserts throughout that any error in admitting the hearsay            testimony was harmless beyond a reasonable doubt, employing            the formulation of the standard applied to issues of            constitutional dimension.                                         -29-                                         29            government argues  that the  statements demonstrate  Limoli's            relationships to Ferrara,  Angiulo, and the Patriarca  Family            hierarchy, as well as Limoli's participation and position  in            the RICO enterprise; and that Limoli's statements link him to            Ferrara                    and                       Angiulo,                                thereby inculpating him in a conspiracy to            kill  DiFronzo  as  part of  a  pattern  of  racketeering  in            association with the Patriarca Family.                      We  conclude  that  Limoli's  statements  regarding            DiFronzo's                       murder were admissible under Rule 804(b)(3).  These            statements                       are against Limoli's penal interest insofar as they            inculpate                      him in criminal acts and conspiracies with others to            commit criminal  acts.  See United  States v. York, 933  F.2d            1343, 1360 (7th Cir. 1991); United States v. Layton, 720 F.2d            548, 560 (9th Cir. 1983).   Moreover, to the extent that  the            statements implicate Limoli in  the Patriarca Family and  its            activities, they demonstrate  "an insider's  knowledge" of  a            criminal  enterprise and  its criminal  activities, which  is            sufficiently                         against                                Limoli's penal interest to come within the            exception.  See United  States v. Barrett, 539 F.2d 244,  252            (1st Cir. 1976); Williamson, 512 U.S. at 606-07 (Scalia,  J.,            concurring).  Finally, all  of the statements that  inculpate            Ferrara also  directly  inculpate  Limoli --  e.g.,  "And  he            proceeded to go  and tell me that  it was Vinnie Ferrara  and            himself had shot him and they said they set the club on fire,            the club on Endicott Street."  Accordingly, we conclude  that                                        -30-                                         30            the district  court's admission of  these statements did  not            violate the rule of Williamson.  See Williamson, 512 U.S.  at            603-04.                          As to DiNunzio's testimony regarding the murder of            Corlito,  Barone argues  that  the  only  statements  against            Limoli's                     penal interest are that he killed Corlito and that he            was paid to  do so.  The  government counters that there  was            nothing in Limoli's confession implicating Barone that  might            have  decreased  Limoli's  own  criminal  liability,  thereby            detracting                       from                           the                               self-inculpatory nature of his admission to            DiNunzio that  he murdered  Corlito.   In addition,  Limoli's            statement                      that                          Barone                                 also received $1,000 from Ferrara for his            participation  in  Corlito's  murder  demonstrates   Limoli's            knowledge                      of                        and                            participation in the Patriarca Family, and the            RICO conspiracy  generally, and in  the conspiracy to  murder            Corlito.   The government also  contends that,  even if  this            statement                      is                         judged to be insufficiently self-inculpatory, the            admission of the statement  was harmless beyond a  reasonable            doubt.   For the reasons stated  in our consideration of  the            testimony concerning the DiFronzo murder, supra, we  conclude            that                 the                     testimony regarding the Corlito murder was admissible            under  Rule  804(b)(3), and  that  any  Williamson  error  in            admitting                      Limoli's                              statement regarding the payment of $1,000 to            Barone did not affect Barone's substantial rights.  As is the            case  with his  statements  regarding  the  DiFronzo  murder,                                        -31-                                         31            Limoli's  statements inculpating  Ferrara and  Barone in  the            murder of Corlito also directly inculpate himself.                        Barone's                               objections                                         to                                            DiNunzio's testimony regarding            the credit  union robbery are  that only Limoli's  statements            admitting                      to                         the                            robbery                                    and to shooting McPhee in the foot are            against his  penal interest, and  that his  statement to  the            effect that Barone shot McPhee in the neck was  inadmissible.            The                government replies that DiNunzio's testimony regarding the            robbery  was  otherwise  admissible  as  DiNunzio's  personal            knowledge.                                               As                          to                             Limoli's statement that Barone shot McPhee in            the neck, the government argues that, although the  statement            may appear to shift the  blame from Limoli to Barone for  the            more serious offense of attempted murder, the statement is no            less                 an                    admissible declaration against interest; it inculpates            both Limoli and  Barone because the  shooting was within  the            scope                  of                     the                         robbery conspiracy, and the statement was made to            an ally in a non-custodial setting.  Finally, the  government            argues                   that,                         even                             if                                the                                    admission of this statement was error,            it               was                   harmless                           beyond                                  a                                    reasonable doubt in view of DiNunzio's            testimony that when Barone and Chris Jordan came to her house            after the robbery, Barone admitted that he had shot McPhee in            the                neck,                      and                         in                            light                                  of Walter Jordan's testimony that Barone            made the same statement to him.                      We                         conclude                                  that                                      the                                          bulk of DiNunzio's testimony was            independently                         admissible as DiNunzio's personal knowledge, and                                        -32-                                         32            that the  evidence  implicating  Barone in  the  robbery  and                       that  Barone shot the guard  in the neck was  als                                                                        r            indicating                                                  o            independently admissible  through  the  testimony  of  Walte            Jordan.   We also  find  that, to  the extent  that  Limoli's            statement regarding  Barone may  be understood  to raise  any            blame-shifting  concerns,   we   are   satisfied   that   the            circumstances                         in which the statement was made demonstrate that            the                portion                        inculpating Barone is no less trustworthy than the            portion inculpating  Limoli.   See  Sasso,  59 F.3d  at  349;            Matthews, 20 F.3d at 546.8                        Barone  challenges  the  admission  of   DiNunzio's            testimony  regarding  events  and  circumstances  related  to            Limoli's "problem" and "big mistake" in having stolen cocaine            and                money                      from Spagnolo (which he thought belonged to Salemme,            8.  For all the reasons stated thus far, we also reject            Barone's more general arguments that Limoli's statements            concerning his relationships with Ferrara, Barone, Jordan,            and others were inadmissible because they shift the majority            of the blame for certain activities from Limoli to others --            e.g., Ferrara ordered Corlito's murder.  Limoli's statements            concerning his relationship with Ferrara are against his            penal interest, directly inculpating him in a RICO conspiracy            with Ferrara (and Barone) and in the RICO enterprise, along            with other criminal activities.  DiNunzio's hearsay testimony            that Limoli was involved in criminal activities with Barone            and with Chris and Walter Jordan is also against Limoli's            penal interest, particularly in view of Walter Jordan's            testimony that he, Limoli, and Barone together were engaged            in criminal activity in association with the Patriarca            Family.  Although, as the government concedes, Limoli's            statements regarding Barone's criminal activities with Jordan            should not have been admitted because they do not inculpate            Limoli, the error did not affect Barone's substantial rights            as Jordan himself testified about his criminal activities            with Barone.                                         -33-                                         33            Jr.), and to the drug deal between Limoli and Barone that was            to take place the night Limoli was murdered.  Barone contends            that                 a                   "mistake" cannot be classified as a declaration against            penal interest, and that  there was no reasonable  likelihood            that Limoli's statements  regarding, inter  alia, the  Prince            Street alley meeting and the drug deal with Barone could have            resulted in criminal liability.  The government responds that            Limoli's statements regarding  his "big mistake" and  related            events                   were                       admissible                                  under Rules 803(3) and 804(b)(3) because            they reflect  Limoli's then  state of  mind; demonstrate  his            knowledge                      of                         the workings of the Patriarca Family; incriminate            him                in                   the                      possession                                 of                                    narcotics and in a theft of money; and            inculpate                      him                          in                            the                                Patriarca Family and RICO conspiracy.  The            government                       contends further that Limoli's statements regarding            his recognition of the mistake -- violating the LCN rules  by            stealing from a made  member -- and how the Patriarca  Family            responded  to  it  demonstrate  Limoli's  knowledge  of   and            involvement with the Patriarca Family.                       We  conclude for  the reasons  already stated  that            Limoli's  statements regarding  his  "big  mistake"  and  his            resultant                      "problem"                               are                                   sufficiently against his penal interest            as               to                  be                     admissible.  See, e.g., Barrett, 539 F.2d at 252.  We            further find that the circumstances surrounding the making of            these                  statements demonstrate their self-inculpatory nature and            that a reasonable person in Limoli's position would not  have                                        -34-                                         34            made  such statements  unless he  believed them  to be  true.            See Williamson, 512  U.S. at 603 (explaining that "whether  a            statement                      is                         self-inculpatory or not can only be determined by            viewing                    it                       in                         context,"                                   and that "[e]ven statements that are on            their face  neutral may actually  be against the  declarant's            interest").                        In this regard, the government wisely concedes that            DiNunzio's testimony  regarding Limoli's  description of  how            members of the  Patriarca Family learned  that he had  stolen            Spagnolo's                       cocaine was inadmissible under Rule 804(b)(3).  The            government   also    correctly   asserts   that    DiNunzio's            identificatio                        ns of Annette and Lena Chiuchiolo were admissible            as personal knowledge.   We find, however, that the  district            court's                    error                         in                            admitting this hearsay evidence did not affect            Barone's substantial rights, particularly given that Jordan's            testimony  and  the  evidence  obtained  through   electronic            surveillance  established the  same  facts,  which  were  not            significant to  the case  against Barone,  as the  government            points out.                       DiNunzio testified that Limoli told her that Barone            had                "skimmed" cocaine from him.  The government maintains that            this                 statement inculpates Limoli in the possession of cocaine,            but concedes  that  DiNunzio's testimony  regarding  Barone's            actions                    was                        inadmissible under Rule 804(b)(3).  The government            argues, however, that because Barone elicited this  testimony                                        -35-                                         35            for                the                    first time on cross-examination, he cannot be heard to            complain                     about its admission, citing United States v. Angiulo,            897 F.2d 1169, 1216 (1st Cir. 1990); United States v. Vachon,            869                F.2d                     653,                         658-59                                (1st Cir. 1989), and that other statements            elicited                     for                         the first time on cross-examination were harmless            beyond a reasonable  doubt (DiNunzio's testimony that  Limoli            said that Walter Jordan had robbed him of a gun and a  set of            pearls; harmless  in  view of  Jordan's own  admissions),  or            generally  admissible   as  prior   inconsistent   statements            (DiNunzio's testimony regarding prior statements she had made            to the police, the FBI, and the grand jury).  We agree.                                         B.                      Barone also  challenges the  admission of  Limoli's            statements on  the  grounds that  they  do not  satisfy  Rule            804(b)(3)'s                        "corroborating circumstances" requirement and that            the  statements  lack   the  "particularized  guarantees   of            trustworthiness" required by the Confrontation Clause.9                       The                          Rule                               804(b)(3)                                        and                                            Confrontation Clause inquiries            are                not                    coterminous, and evidence that is admissible under the            former                   may                       still be inadmissible under the latter.  See, e.g.,            White  v. Illinois,  502 U.S.  346, 352-53  (1992); Idaho  v.            Wright                 ,                    497                       U.S.                            805,                                 814 (1990); California v. Green, 399 U.S.            9.   The Confrontation Clause of the Sixth Amendment            provides, in pertinent part, that "[i]n all criminal            prosecutions, the accused shall enjoy the right . . . to be            confronted with the witnesses against him."                                          -36-                                         36            149, 155 (1970).  But the hearsay rules and the Confrontation            Clause share the  purpose of permitting the use of  probative            evidence that is trustworthy and excluding that which is not.            See Houlihan, 92 F.3d at 1281.  Accordingly, we will consider            Barone's                     "corroborating                                   circumstances" and Confrontation Clause            challenges  together,  deeming   that  which  satisfies   the            Confrontation  Clause  to  be  sufficient  to  satisfy   Rule            804(b)(3)'s                        corroboration                                    requirement as well.  Cf. Wright, 497            U.S. at  821  ("Because evidence  possessing  'particularized            guarantees                       of trustworthiness' must be at least as reliable as            evidence admitted under a firmly rooted hearsay exception, we            think                  that                       evidence admitted under the former requirement must            similarly                      be                         so trustworthy that adversarial testing would add            little to its reliability.") (citations omitted).                                             1.                      Barone argues that  the district  court abused  its            discretion  in  admitting  Limoli's  out-of-court  statements            because the statements are insufficiently corroborated or are            entirely lacking in corroboration.10  We disagree.             10.  By its terms, Rule 804(b)(3) requires corroboration only            for statements "tending to expose the declarant to criminal            liability and offered to exculpate the accused."  Fed. R.            Evid. 804(b)(3) (emphasis added).  See Fed. R. Evid.            804(b)(3) advisory committee's note (explaining that            declarations against interest "tending to exculpate the            accused are more suspect and so should have their            admissibility conditioned upon some further provision            insuring trustworthiness").  The rule does not explicitly            require corroboration for the type of statements at issue            here, those offered by the government to inculpate the                                        -37-                                         37                      First,   Barone   misconstrues   Rule   804(b)(3)'s            corroboration                                               t                                                                        s                                11  The corroboration that is required by            Rule                 804(b)(3)                           is                             not                                 independent evidence supporting the truth            of               the                   matters                          asserted                                   by the hearsay statements, but evidence            that clearly  indicates  that the  statements are  worthy  of            belief, based upon the circumstances in which the  statements            were                 made.                                               S                        ee United States v. Innamorati, 996 F.2d 456, 475                          requirement to the  extent that he argues  tha            there  is  a lack  of  evidence  "corroborating"  the  event            described by Limoli.            (1st                 Cir.                      1993) ("'[F]or the declaration to be trustworthy the            declarant must have known it was against his interest at  the            time he  made  the statement.'")  (quoting Filesi  v.  United            accused.  See, e.g., United States v. Fields, 871 F.2d 188,            192 (1st Cir. 1989).  Nevertheless, a number of courts have            interpreted Rule 804(b)(3) to require corroboration whether            the statement inculpates or exculpates the accused.  See            United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996);            United States v. Thomas, 62 F.3d 1332, 1337 (11th Cir. 1995),            cert. denied, --- U.S. ---, 116 S. Ct. 1058 (1996); United            States v. Casamento, 887 F.2d 1141, 1170 (2d Cir. 1989);            United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988);            United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).             Although this court has not expressly extended the            corroboration requirement to statements that inculpate the            accused, see Fields, 871 F.2d at 192, we have applied the            rule as if corroboration were required for such statements,            see Seeley, 892 F.2d at 2.  The Supreme Court has not decided            the issue, explicitly declining to do so in Williamson, 512            U.S. at 605.            11.  Barone asserts, inter alia, that DiNunzio's testimony            regarding what Limoli told her about events relevant to the            prosecution of this case comprises the only evidence against            Barone regarding certain events, and that, while Karpowicz-            DiPietro's testimony appears to corroborate some of            DiNunzio's testimony, this testimony, like DiNunzio's, was            also hearsay, improperly admitted at trial.                                          -38-                                         38            States,  352 F.2d  339, 343  (4th Cir.  1965) (alteration  in            Innamorati); United States v. Casamento, 887 F.2d 1141,  1170            (2d Cir. 1989) (in determining whether a declaration  against            penal                  interest is sufficiently trustworthy as to be admissible            under Rule 804(b)(3),  "the district court  must look to  the            circumstances in which  the declarant  made the  statement").            Analysis                     of                       trustworthiness under the Confrontation Clause also            focuses upon the circumstances surrounding the making of  the            statement.  See Wright,  497 U.S. at 819 (in determining  the            trustworthiness of hearsay  evidence under the  Confrontation            Clause, the court should consider "only those [circumstances]            that surround the making of the statement and that render the            declarant                      particularly                                  worthy of belief"); Lee v. Illinois, 476            U.S. 530, 544  (1986) (determining  trustworthiness from  the            circumstances surrounding the making of the statement).                      Second,  Barone  misapprehends  the   corroboration            requirement                        to the extent that he argues that corroboration is            required because DiNunzio is not credible.  The corroboration            requirement                        is not concerned with the veracity of the in-court            witness  but with  the  trustworthiness of  the  out-of-court            statement; moreover, the credibility of witnesses is a matter            for the jury.  See Seeley,  892 F.2d at 3 (agreeing with  the            Second                   Circuit in United States v. Katsougrakis, 715 F.2d 769,            777 (2d  Cir.  1983), that  neither  Rule 804(b)(3)  nor  the            Confrontation Clause  "requires  the trial  court to  make  a                                        -39-                                         39            special                    assessment of the credibility of a witness who relates            an               out-of-court                           declaration against penal interest; rather, the            credibility of an in-court witness is ordinarily a matter for            the jury").                         Third,  the corroboration  requirement  "should  be            construed in  such a manner as  to effectuate its purpose  of            circumventing fabrication," Fed. R. Evid. 804(b)(3)  advisory            committee's note, and "[t]he fear that inculpatory statements            are unreliable stems largely  from the presumption that  such            statements are self-serving, offered only to shift the  blame            from the declarant to another."  York, 933 F.2d at 1363.  See            Innamorati, 996 F.2d at 474-75.  These concerns do not  arise            where, as  here,  the portions  of  the statements  that  are            inculpatory as to the defendant are also directly against the            declarant's penal interest; where the statements were made to            close                  relatives                            of                              the                                  declarant;12 and where we can discern no            attempt on the part of the declarant to diminish his role  in            the                criminal                         activity described in the statements.  See Sasso,            59 F.3d at 349; Matthews, 20 F.3d at 546.                        We                         conclude                                  that the portions of the statements that            are inculpatory as to Barone are in no way self-serving as to            12.  While the fact that the challenged statements were made            to allies has no bearing on the question whether the            statement is against the declarant's penal interest, it is            relevant to the determination of whether the circumstances            indicate that the declarant was motivated to shift blame to            the other individual inculpated by the statement.                                        -40-                                         40            Limoli,  and therefore  we  see  no reason  to  question  the            trustworthiness of any of the challenged statements on blame-            shifting grounds.  See York, 933 F.2d at 1362-63  (explaining            that the circumstances surrounding the declarant's statements            inculpating  the  defendant  --  speaking  to   acquaintances            unconnected  to law  enforcement  authorities  --  make  them            "eminently                       trustworthy,"                                    and noting that the advisory committee            used that scenario as an example of an inculpatory  statement            that "would have no  difficulty in qualifying" for  admission            under Rule 804(b)(3)).                          In  the   final  analysis,  the  Rule   804(b)(3)            corroboration                         inquiry is concerned only with the admissibility            of  hearsay  evidence  based  upon  its  trustworthiness,   a            determination                          committed                                   to the sound discretion of the district            court.  See United States  v. Vretta, 790 F.2d 651, 659  (7th            Cir.                 1986)                       ("A trial judge has considerable discretion, within            the                parameters                           of                             the                                 rules of evidence, in determining whether            the hearsay statements  contain the necessary  circumstantial            guarantees of trustworthiness.").  See also Barrett, 539 F.2d            at 253.   Matters such as  the truth of  what is asserted  by            hearsay  statements, the  credibility of  witnesses, and  the            weight to be accorded evidence are for the finder of fact.                         Here,  the district  court, in  ruling on  Barone's            motion in limine, determined that the challenged portions  of            DiNunzio's  testimony  were  sufficiently  corroborated   and                                        -41-                                         41            trustworthy as to be admissible under Rule 804(b)(3) and  the            Confrontation Clause.  We agree with the district court  that            the detailed  nature of  Limoli's statements;  the fact  that            Limoli made  the  statements to  close  relatives in  a  non-            custodial                      setting rather than to the police; and the fact that            Limoli                   had                       no discernible motivation to lie to either DiNunzio            or Karpowicz-DiPietro in  making these statements  constitute            "corroborating  circumstances  [that]  clearly  indicate  the            trustworthiness                            of                              the                                  statement[s]."  Accordingly, we conclude            that                 the                     district                             court                                   did not abuse its discretion in finding            Limoli's statements to be sufficiently corroborated as to  be            reliable and admissible under Rule 804(b)(3).                                           -42-                                         42                                         2.                      Barone  argues  that  the  admission  of   Limoli's            statements violated his confrontation rights.13  The  Supreme            Court  has  explained that  "[t]he  central  concern  of  the            Confrontation Clause  is  to ensure  the reliability  of  the            evidence against  a criminal  defendant by  subjecting it  to            rigorous testing  in the context  of an adversary  proceeding            before the trier of fact."  Maryland v. Craig, 497 U.S.  836,            845 (1990).   See Zannino,  895 F.2d at  5.   When a  hearsay            declarant  is   not   present  for   cross-examination,   the            Confrontation                         Clause requires a showing that (i) the declarant            is               unavailable,                         14                                                        and                                 (ii) the statements sought to be admitted            bear adequate "indicia of reliability."  Ohio v. Roberts, 448            U.S. 56, 66 (1980).                        Where  the evidence  is  admitted under  a  "firmly            rooted"                    hearsay exception, reliability may be inferred without            more.                                     See                                            id                        . at 66; Wright, 497 U.S. at 817 (explaining that            "[a]dmission                         under a firmly rooted hearsay exception satisfies            13.  In Williamson, the Supreme Court did not reach the            Confrontation Clause issue because it remanded the case,            rather than declare any statements to be admissible under            Rule 804(b)(3).  512 U.S. at 605.            14.  Although unavailability is not in dispute here, we note            that, while the unavailability of the declarant is required            under Rule 804 as a matter of evidence law, a demonstration            of unavailability (or production of the declarant at trial)            is not always required by the Confrontation Clause.  See            White v. Illinois, 502 U.S. at 353-57; United States v.            Inadi, 475 U.S. 387, 392-400 (1986); Manocchio v. Moran, 919            F.2d 770, 774-76 (1st Cir. 1990).                                        -43-                                         43            the constitutional requirement of reliability because of  the            weight  accorded   longstanding  judicial   and   legislative            experience                       in                         assessing                                   the trustworthiness of certain types of            out-of-court statements"); id.  at 821 ("statements  admitted            under a 'firmly rooted' hearsay exception are so  trustworthy            that   adversarial  testing   would  add   little  to   their            reliability").  Statements  that do not fall within a  firmly            rooted                   exception                            are                                "presumptively unreliable and inadmissible            for Confrontation Clause purposes," Lee v. Illinois, 476 U.S.            at 543,  and therefore "must be  excluded, at least absent  a            showing  of particularized  guarantees  of  trustworthiness,"            Roberts, 448 U.S. at 66 (footnote omitted).                        Barone maintains  that  the hearsay  exception  for            declarations  against interest  is  not  firmly  rooted  and,            therefore, such declarations are presumptively  untrustworthy            and inadmissible in the absence of proof by the government of            the reliability of the statements.  In making this  argument,            Barone simply ignores the  fact that this court has held  the            declarations against interest exception to be firmly  rooted.            See                              Saccoccia                        ,                          58                             F.3d                                  at 779; Innamorati, 996 F.2d at 474 n.4.                      We                         recognize                                   that                                       some                                            courts have questioned whether            the declarations against interest exception is firmly rooted,            and whether it should be treated as such where the  statement            implicates another person in addition to the declarant.   See            United States v.  Dean, 59 F.3d 1479,  1493 & n.24 (5th  Cir.                                        -44-                                         44            1995), c ert. denied, ---  U.S. ---, 116  S. Ct. 794  (1996);            Matthews, 20 F.3d at 545 (collecting cases); United States v.            Flores                 ,                    985                       F.2d                            770                                (5th Cir. 1993).15  We find these cases to            be inapposite to our analysis of the instant case because, in            contrast  to  the  statements  at  issue  here,  the  hearsay            statements in  these cases were  made under circumstances  in            which the declarant had a "strong motivation to implicate the            defendant  and to  exonerate  himself," thereby  raising  the            concern that the statements were made in order to shift blame            to               another                       or to curry favor with law enforcement authorities.            See, e.g., Lee v. Illinois, 476 U.S. at 541.                      We think that where, as here, it is clear that  the            statements inculpating both  the declarant and the  defendant            were not made in  order to limit the declarant's exposure  to            criminal                     liability,                               the                                   declarations against interest exception            is properly treated as firmly rooted for Confrontation Clause            purposes.   See  York, 933  F.2d at  1362-64.   Nevertheless,            because                    we                       agree                            with                                 the district court that the statements at            issue                  in                     this                         case                              bear                                   sufficient indicia of reliability as to            be               admissible under the Confrontation Clause, we need not rely            15.  Although the Williamson Court did not decide whether the            declarations against interest exception is firmly rooted, the            Court did point out that "the very fact that a statement is            genuinely self-inculpatory -- which our reading of Rule            804(b)(3) requires -- is itself one of the 'particularized            guarantees of trustworthiness' that makes a statement            admissible under the Confrontation Clause."  512 U.S. at 605            (citing Lee v. Illinois, 476 U.S. at 543-45).                                        -45-                                         45            upon the  firmly rooted status of  the exception in order  to            sustain the district court's ruling.                        "The                           critical                                   inquiry                                           for determining 'particularized            guarantees of trustworthiness' is whether 'the test of cross-            examination would be of marginal utility.'"  United States v.            Trenkler, 61 F.3d 45, 64 (1st Cir. 1995) (quoting Wright, 497            U.S. at 820) (footnote  omitted).  We are satisfied that  the            circumstances                         surrounding the making of Limoli's statements to            DiNunzio                     and                        Karpowicz-DiPietro demonstrate that the statements            are "so trustworthy that adversarial testing would add little            to their reliability."  See Wright, 497 U.S. at 821.                      In  arguing that  the  testimony  of  DiNunzio  and            Karpowicz-DiPietro lacked  the corroboration  and indicia  of            reliability required by Rule 804(b)(3) and the  Confrontation            Clause,                    Barone relies heavily upon United States v. Mokol, 939            F.2d 436, 439 (7th Cir. 1991).  Citing Mokol, Barone urges us            to consider  the  following factors:  "the character  of  the            witness for truthfulness and honesty and the availability  of            evidence                     on                        the issues and the witness' relationship with both            the defendant and government and his motivation to  testify."            Appellant's Br. at 28-29.  He invites us to conclude from our            consideration of  these  factors that  DiNunzio16 was  not  a            16.  Barone does not explicitly attack the credibility of            Karpowicz-DiPietro, but does argue that her testimony was            admitted in violation of his confrontation rights.                                        -46-                                         46            credible witness  and, therefore,  that her  testimony as  to            Limoli's statements lacks adequate indicia of reliability.                        Barone's reliance upon  Mokol is grossly  misplaced            for a number  of reasons.  First,  Mokol did not address  the            admissibility of hearsay  statements made  by an  unavailable            declarant to an  ally under Rule 804(b)(3), but the  distinct            question of  the admissibility of  prior testimony under  the            residual                     hearsay exception of Rule 804(b)(5).  In this regard,            it is important to recognize that the Supreme Court has  held            that the residual hearsay exception is not firmly rooted  for            purposes of Confrontation Clause  analysis.  See Wright,  497            U.S.                 at                    817-18 (explaining that "[h]earsay statements admitted            under the residual exception, almost by definition, . . .  do            not share the same tradition of reliability that supports the            admissibility  of statements  under a  firmly rooted  hearsay            exception," and that "were we to agree that the admission  of            hearsay statements under the residual exception automatically            passed                   Confrontation Clause scrutiny, virtually every codified            hearsay exception would assume constitutional stature, a step            this Court  has  repeatedly declined  to  take").   See  also            Government                       of                         Virgin                                Islands v. Joseph, 964 F.2d 1380, 1387 (3d            Cir. 1992) (equating the state-law residual hearsay exception            at issue in Wright with Rule 804(b)(5), and applying to  Rule            804(b)(5)                      Wri                        ght's holding that the residual hearsay exception            is  not firmly  rooted and  therefore requires  a showing  of                                        -47-                                         47            particularized guarantees  of trustworthiness); Trenkler,  61            F.3d                 at                    64                      n.32                           (explaining that the residual hearsay exception            contained in Federal Rule of Evidence 803(24) is not a firmly            rooted exception, citing Wright and Joseph).  But see  United            States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st Cir. 1990)            (rejecting a  Confrontation  Clause  challenge  to  testimony            admitted                     under                          the                              residual hearsay exception of Rule 804(b)(5)            on               the                   ground that Rule 804(b)(5) is a firmly rooted exception            to the hearsay rule).                        Second,  Barone  errs   in  equating  the   hearsay            declarant,  the  reliability  of  whose  testimony  in  prior            proceedings                        was                            at                              issue                                    in Mokol, with DiNunzio and Karpowicz-            DiPietro, whose live in-court testimony contains the  hearsay            statements.                                                 Moreover, and as we have stated, the focus of the            trustworthine                        ss inquiry is not on the in-court witness, but on            the  circumstances  in  which  the  declarant's  out-of-court            statements  were made.    See  Wright, 497  U.S.  at  819-20;            Innamorati                     ,                       996                           F.2d                                at                                   475; Casamento, 887 F.2d at 1170.  Also            as               noted                     previously, the credibility of the in-court witnesses            DiNunzio and  Karpowicz-DiPietro  is not  an element  of  the            admissibility inquiry  (as  a  matter of  Rule  804(b)(3)  or            Confrontation                         Clause analysis) but is a question for the jury.            See Seeley, 892 F.2d at 3.                                         III.                                        -48-                                         48                      On October 20, 1993,  after a nine-week trial,  the            jury began its deliberations.  On October 25, 1993, the court            gave a "modified Allen charge" in response to a note from the            jury stating that it  had reached an impasse and seeking  the            court's guidance.  See  Allen v. United States, 164 U.S.  492            (1896) (approving a supplemental jury instruction designed to            encourage a deadlocked jury to reach a verdict).                      Prior                            to                              administering                                            the charge, the judge informed            counsel                    of                       the                          language                                   he intended to use and deleted language            in               response                        to                          Barone's                                   objection.  After the charge was given,            Barone objected to the court's use of certain language  which            the                judge                      had not mentioned in the pre-charge conference.  The            judge responded by preserving the objection, stating that  he            would                  give                       it                         further                                 thought should he have occasion to repeat            the charge.  At 3:15  p.m., the jury informed the judge  that            there had been no change in their deliberations and asked the            court's permission to return the following morning.                      In the afternoon of the next day, October 26, 1993,            the jury  communicated to  the court  that they  had made  no            progress  and saw  "no potential  for coming  to a  unanimous            decision on any of the four counts through continued rational            discussion."  Barone  moved for a  mistrial, which the  court            denied.  The court then  informed the jury that it would  not            accept the  jury's  conclusion as  "the  final word  in  this            matter," but would dismiss the jury for the remainder of  the                                        -49-                                         49            day and  begin the next day  by repeating the modified  Allen            charge.  Barone did  not object to the proposed second  Allen            charge, but did object to the judge's statement to the effect            that, in his experience, the jury had not deliberated for  an            unusually                      long period of time.  He again moved for a mistrial,            and the court denied the motion.                       The  following day,  October  27, 1993,  the  judge            repeated the modified Allen charge, omitting the language  to            which                  Barone                         had objected after the judge had administered the            first Allen charge.  On October 28, 1993, the district  judge            dismissed  a  juror pursuant  to  Federal  Rule  of  Criminal            Procedure  23(b), see  infra, and  on October  29, 1993,  the            eleven-member                          jury                              returned verdicts of guilty as to Counts One            through Three, but failed to reach a verdict as to Count Four            (charging Barone with Limoli's murder).                      Barone contends that, in  giving the jury a  second            Allen charge, the district court violated his Fifth Amendment            right                  to                     due                         process of law and his Sixth Amendment right to a            fundamentally                         fair trial, arguing that the practical effect of            the district court's dismissal of a juror after having  given            two                modified                         Allen charges was to force the eleven-member jury            to render coerced and suspect verdicts.                       Barone                             argues that a trial court should never give a            second                   modified Allen charge.  Several circuits, including the            Second Circuit in particular, have rejected the use of a flat                                        -50-                                         50            ban,                 and                     judge                          the                              propriety of a second charge in light of the                                United States    Ruggiero, 928 F.2d 1289,            1299            circumstances.  See               v.                  (2d  Cir. 1991).17   The  Ninth Circuit,  over a  strong            dissent, has  adopted a per  se rule  against multiple  Allen            charges, although this rule is subject to at least one  major            exception,                       permitting a successive charge if the jury requests            a              repetition                         of                           the                               instruction.  United States v. Seawell, 550            F.2d 1159, 1163 (9th Cir. 1977).                       The danger with an Allen charge is that jurors  who            hold a minority opinion  will feel that the judge is  putting            pressure                     on                        them                            to                               surrender their viewpoint.  Even though the            modified Allen charge  expressly warns that  this is not  its            purpose,  many have  been concerned  that it  pushes in  this            direction.  See United States v. Angiulo, 485 F.2d 37,  38-39            (1st                 Cir.                      1973).                                                         Although the courts have held that the charge            is  accepted  as  a  reasonable  compromise  of   conflicting            interests,                       the problem is exacerbated when the charge is given            a  second time,  after  the jury  has  already been  told  to            reconsider  and  again  has found  itself  in  deadlock.    A            successive                       charge                             tends                                   to create a greater degree of pressure,            and one  could argue that  at this point  the limit has  been            reached.            17.  See also United States v. Seeright, 978 F.2d 842, 850            (4th Cir. 1992); United States v. Reed, 686 F.2d 651, 653            (8th Cir. 1982); United States v. Fossler, 597 F.2d 478, 485            (5th Cir. 1979).                                        -51-                                         51                      In the  present case, the  second charge came  very                    after the first,  when the district court  apparently            concluded  that the  jury  had  not  seriously  reconsidered.             ollowing                      the                         first                               modif          charge, the jury deliberated            quickly            F                      ied Allen            only for the  remainder of the day  on which it received  the            charge and part way  into the next day before reporting  back            that it remained deadlocked.  Given the length and complexity            of the  case --  a nine-week trial  with very difficult  RICO            instructions                         --                           the                               district court was surely within its rights            in thinking that the jury had not absorbed the message of the            first Allen charge,  that the jury  should make a  reasonable            effort to break the deadlock.18                      Although we sustain the district court in this case            without                    much                         difficulty and decline to adopt a per se rule, we            do think  that caution needs to  be used before the  modified            Allen charge is given for a second time.  At a minimum, there            ought normally to be special circumstances, and not merely  a            continued                      inability by the jury to decide, to justify a second            charge.                                         But                         circumstances vary enormously; the trial judge is            closer to the  facts, and with this  one note of warning,  we            adhere to the majority view that each case must be judged  on            its own facts.            18.  See Reed, 686 F.2d at 652-53 (jury deliberated for only            about one hour between first and second charge); United            States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977) (en            banc) (jury deliberated for only three hours between first            and second charge).                                        -52-                                         52                                         IV.                      Federal Rule of Criminal Procedure 23(b) commits to            the                discretion of the district court both the determination of            whether in the circumstances "just cause" exists to excuse  a            juror after  the  jury has  retired  to deliberate,  and  the            decision to proceed with a jury of eleven in the event that a            juror                  is                     excused                            for                                just cause.  Fed. R. Crim. P. 23(b).  See,            e.g. ,     Casamento  ,      887     F.2d      at      1187.                       Barone contends that the district court abused  its            discretion under Rule 23(b) and violated his Fifth  Amendment            right  to due  process  of law  by  excusing a  juror  during            deliberations                         over his objection.  He asserts that the court's            removal                    of                       the                          juror                                "irreparably altered not only the dynamics            of the  jury, but its impartiality  as well."  Barone  argues            further                    that, in permitting the eleven-member jury to continue            to               deliberate                          after                               the                                   juror's dismissal, rather than granting            his                motion                       to                         declare                                 a                                   mistrial, the district court abused its            discretion under Rule 23(b) and violated his Sixth  Amendment            right to a unanimous verdict.                                          A.                      On                         October                                 27,                                    1993,                                          the                                              jury foreperson informed the            court that, during the jury's lunch break that day, a Federal            Protective Service  Officer ("FPO") told  one of the  jurors,            Douglas Berger, that Berger's cousin had been represented  in            another matter  by  one of  Barone's  attorneys.   The  court                                        -53-                                         53            promptly met with counsel and discussed at length the problem            and what ought to be done about it.  At several points during            this discussion, Barone  moved for a mistrial, but the  court            decided                    to                       question the jury foreperson, Berger, and the other            jurors before ruling on the motion.19                       The  district  judge  first  spoke  with  the  jury            foreperson.  Then, after  discussion with counsel, the  court            called for Berger, instructing him as follows:                             I                             want                                  you                                      to listen to the questions                      I'm going to ask you, carefully.  Try  to                      answer those  questions fully, but  don't                      tell                           me                              more                                   than I ask you about, because                      there's some things  I need  to know  and                      some things that  at the moment, I  don't                      intend to get into.  Basically, I want to                      know  what  happened  downstairs  in  the                      lunchroom and how you  feel about it.   I                      don't want to know what has been going on                      upstairs in the jury room.  So, those are                      sort  of  the  general  areas  that   I'm                      interested in and with regard to what has                      gone on upstairs, at the moment, I  don't                      want you to tell me.                       After listening  to  Berger's recollection  of  his            conversation with the  FPO, the judge asked Berger "And  what            effect, if any, does this  have on your ability, or may  this            have                 on                    your                        ability                                to                                   deliberate and decide the case based on            the evidence and the law and on nothing else, including  this            information and event?"  Berger replied,            19.   The district court's investigation into the matter is            chronicled in greater detail in United States v. Barone, 846            F. Supp. 1016 (D. Mass. 1994).                                          -54-                                         54                           Well, this is going to -- I have  no                      problem with it.   It's just that  things                      I'd have problems with if the jury,  say,                      is  hung and  someone thinks  that I  had                      something to  do with it.   I don't  want                      someone to be pointing a finger at me and                      saying, well, you know, he defended  your                      cousin and you  were going with him,  and                      you know, I don't  know what the deal  --                      what happened with my cousin.  If someone                      could                            say,                                 well, it would be out of spite.                      I just -- It's something I don't want  to                      deal with.    I think  it would  be  very                      difficult for everyone upstairs, also.                      After asking  Berger to step  out, the judge  again            conferred                      with counsel before recalling Berger to question him            further regarding a discrepancy  between his version and  the            FPO's version of events.  After Berger stepped out again, the            judge  expressed doubts  about his  credibility, candor,  and            ability  to continue to  serve as a  juror, but deferred  his            decision as to how to resolve the matter until the next day.                      On the morning of October 28, 1993, the judge began            by stating his  view that Berger's ability to deliberate  had            been                 impaired and that he should be excused from the jury.  He            also stated that, in order to decide under Rule 23(b) whether            to declare a mistrial or proceed with eleven jurors, he would            question each of the remaining jurors individually.  Barone's            counsel                    stated                           that                               if                                  the court did not grant a mistrial, then            Berger should not be excused.                        After further consultation with counsel, the  judge            called                   for                       Berger.                                                             The                                   judge reminded Berger that he was under            oath and again instructed him that, in answering the  court's                                        -55-                                         55            questions,  he  should take  care  not  to  reveal  anything,            "directly or indirectly, about how you're voting up there, or            how                the                    jury                         is divided, or what your view of the evidence is,            or               anybody                       else's."  The judge then questioned Berger again in            an effort to determine whether he was able to deliberate  and            vote  solely on  the basis  of the  evidence and  the law  as            instructed                       by                          the                             court.                                     In response to the court's questions,            Berger                   stated that he would "have a hard time" and that he did            not "feel right."  When asked whether he wished to be excused            from                 the                     case, Berger replied, "I wouldn't object.  I wouldn't            say I  don't want to be, but I really don't feel I should  be            here                 anymore                         .                           .                            .                              I                                don't think it's right that I stay."  When            the  court asked him  for his "most  candid responses" as  to            whether he could avoid  being influenced in deliberating  and            voting  by concerns  about how  it might  look later,  Berger            replied, "I  don't know if  I can really  [d]o that and  that            concerns                     me.                                                  It                            concerns me a lot.  Maybe it shouldn't, but it            does."                       The judge concluded that Berger's receipt of extra-            judicial information had impaired his ability to continue  to            deliberate                       as                         an                            impartial juror and, therefore, that there was            just cause to excuse  Berger from the jury under Rule  23(b).            Over  Barone's objection,  the  court  excused  Berger,  with            instructions not to discuss the matter with anyone.                                         -56-                                         56                      The court then announced its intention to determine            whether  the  remaining  eleven  jurors  could  continue   to            deliberate fairly and impartially.  The judge stated that  he            would not declare a mistrial without further inquiry  because            the trial had been a long one and would require  considerable            government,                        defense, and judicial resources to retry, but that            he would let counsel be heard on how to proceed if, after his            individual voir  dire  of  the eleven  remaining  jurors,  he            determined that the jurors were impartial.  He explained that            "[t]his is the type  of situation Rule 23(b) was intended  to            address,                     according                              to                                 the Advisory Committee notes, by allowing            juries                   of                      eleven, in the court's discretion, and my overriding            concern is with the fairness of the trial."                       After  further   consultation  with  counsel,   and            following  counsel  for  Barone's  requests  regarding   what            questions to ask, the court conducted an individual voir dire            of each juror.   The court concluded  that no juror had  been            affected by the  information that Berger  received or by  his            dismissal;                       that each juror was fair and impartial; and that no            evidence                     of                        pressure                                or                                   anxiety was discernible in the demeanor            of any of  the remaining jurors.   Accordingly, the  district            court                  denied                         Barone's motion for a mistrial, opting instead to            continue deliberations with  eleven jurors  pursuant to  Rule            23(b).                                       The                       jury                            returned its verdicts the following afternoon.                                        -57-                                         57                      "When                            a                              non-frivolous suggestion is made that a jury            may be biased or tainted by some incident, the district court            must undertake an adequate  inquiry to determine whether  the            alleged  incident  occurred  and   if  so,  whether  it   was            prejudicial."                                                    United                                 States v. Ortiz-Arrigoitia, 996 F.2d 436,            442                (1st                     Cir.                         1993)                               (citations omitted).  See Angiulo, 897 F.2d            at 1184-86.  The district  court is not, however, bound by  a            rigid set of rules and procedures "that compel any particular            form or scope of inquiry," but is "vested with the discretion            to  fashion  an  appropriate  and  responsible  procedure  to            determine whether misconduct actually occurred and whether it            was                prejudicial."  Ortiz-Arrigoitia, 996 F.2d at 443 (citation            omitted).   "Substantial deference is  due the trial  court's            exercise of its  discretion in handling situations  involving            potential                      juror                            bias                                or                                   misconduct," Angiulo, 897 F.2d at 1185,            and                the                    deference                             due                                 the court's ultimate finding on the issue            of  continued juror  impartiality  is enhanced  because  this            determination is a question of fact, id. at 1186.                       Here, the trial judge promptly addressed the matter            in               open                    court, and the inquiry was as thorough as the response            was prompt.  The judge conferred with counsel at great length            over                 a                   period of two days, affording counsel ample opportunity            to               express                      their                            concerns, and entertaining their arguments and            suggestions regarding questions  to ask of jurors and how  to            proceed.  The judge interviewed all the jurors -- taking care                                        -58-                                         58            in his questions not to intrude upon their deliberations  and            consulting                       with                           counsel                                   throughout -- and carefully weighed the            testimony, demeanor, and credibility of Berger and the  other            jurors.   A more careful and  thorough approach than the  one            taken by the district judge here is difficult to imagine.  In            the end, the district court reasonably concluded that  Berger            could                  not                      continue                              to                                 deliberate as a fair and impartial juror,            but that his incapacity  had not impaired the ability of  the            remaining  jurors  to carry  out  their  service  fairly  and            impartially.                       The                          trial                                judge                                     has                                         substantial discretion under Rule            23(b) to  remove a juror  after deliberations have  commenced            where the judge  has determined that  the juror's ability  to            perform her duties has  been impaired.  See United States  v.            Walsh, 75 F.3d  1, 5 (1st Cir.  1996).  Barone protests  that            "Berger's                      concerns were not about his ability to be impartial,            but the  perceptions of  others"; that  Berger indicated  his            ability to deliberate and vote based solely on the  evidence;            and  that  the  district  court  "discounted  juror  Berger's            assurances of his own capability to decide the case based  on            the evidence."   Barone's argument seems to be that  Berger's            initial representation  that  his receipt  of  extra-judicial            information                        from the FPO had not affected his ability to serve            as  an  impartial  juror  was  sufficient  to  establish  his                                        -59-                                         59            competence to  deliberate  impartially  and,  therefore,  the            district court acted improperly in dismissing him.                        But a juror's representations regarding her ability            to perform  fairly and impartially  are not dispositive,  see            Murphy                                    v.                      Flo                        rida, 421 U.S. 794, 800 (1975); rather, the trial            court                  must                       make                           its                               own                                   determination of the juror's ability to            be               fair                    and                        impartial, see United States v. Egbuniwe, 969 F.2d            757, 761-62 (9th Cir. 1992).  In all events, the question  is            not whether the district court could have kept Berger on  the            jury based upon his  initial representation, but whether  the            court acted within  its discretion in  excusing him from  the            jury.  See Casamento, 887  F.2d at 1187 ("Whether or not  the            judge                  properly could have kept this juror on the jury based on            her representation is not the  issue here.  Even if he  could            have done so, it does not follow that he was obligated to  do            so.").                        We                         conclude                                  that                                      the                                          district court did not abuse its            discretion under  Rule 23(b)  in excusing  Berger after  jury            deliberations                          had                             begun;                                    nor did the court violate Barone's due            process  rights by  removing Berger.   In  this context,  due            process demands no  more than what Barone received here,  "'a            jury  capable and willing  to decide the  case solely on  the            evidence                     before it, and a trial judge ever watchful to prevent            prejudicial occurrences and to  determine the effect of  such            occurrences when  they  happen.'"   Olano,  507 U.S.  at  738                                        -60-                                         60            (quoting  Smith  v. Phillips,  455  U.S.  209,  217  (1982)).                                                                B.                      Barone                             also                                  argues                                        that                                             the district court abused its            discretion  under Rule  23(b),  and violated  Barone's  Fifth            Amendment right to due process of law and his Sixth Amendment            right to  a unanimous  verdict by  allowing deliberations  to            continue (rather than declaring a mistrial), and in accepting            verdicts                     returned                              by                                a                                  jury of less than twelve members.  In so            doing,                   Barone                         contends,                                   the district court committed reversible            error                  by                     depriving him of "one of the safeguards of liberty, a            hung jury."                      Rule 23(b) was amended in 1983 in order to  address            the very problem presented here, that of how to deal with the            necessity                      of                         excusing                                 a                                   juror after deliberations have begun.20            As amended, Rule 23(b) gives judges the discretion to  permit            eleven-member juries to deliberate to a verdict if one  juror            becomes unavailable.21   See Fed. R. Crim. P. 23(b)  advisory            20.  We note that under the federal rules the substitution of            an alternate juror is not within the district court's            discretion once the jury has begun to deliberate.  See Fed.            R. Crim. P. 24(c) ("An alternate juror who does not replace a            regular juror shall be discharged after the jury retires to            consider its verdict."); Olano, 507 U.S. at 737-41 (treating            the presence of alternate jurors during deliberations as a            violation of Rule 24(c)); Houlihan, 92 F.3d at 1285-88            (same).            21.  The Supreme Court has made clear that the Constitution            does not require twelve jurors for conviction.  See Williams            v. Florida, 399 U.S. 78 (1970).  We have stated that Williams                                        -61-                                         61            committee's                        note;                             United                                    States v. Smith, 789 F.2d 196, 204 (3d            Cir.                 1986).                                                 The amendment was intended to provide a preferred            mechanism for avoiding  a mistrial where  a juror is  excused            after                  deliberations have begun, United States v. Stratton, 779            F.2d                 820,                      831 (2d Cir. 1985), particularly "when the trial has            been a lengthy  one and consequently  the remedy of  mistrial            would  necessitate  a   second  expenditure  of   substantial            prosecution, defense and court  resources," Fed. R. Crim.  P.            23(b) advisory committee's note.                       The district court determined that, at the time  of            Berger's dismissal, the trial had been in progress for nearly            eleven weeks  and  would  require  "considerable  government,            defense,                     and                        judicial                                 resources to retry," and that each of the            remaining  jurors could  continue  to deliberate  fairly  and            impartially, based solely upon  the evidence and the  court's            instructions.                       In United States v. Brown, 823 F.2d 591, 597  (D.C.            Cir. 1987), the court held that "Rule 23(b) is not  available            when                 the                     record                           evidence                                    discloses a possibility that the juror            believes that the government has failed to present sufficient            evidence to support a conviction."  See also United States v.            "effectively answers the claim that 11 jurors are too few,"            Walsh, 75 F.3d at 6, and all courts to have considered the            matter have held Rule 23(b) to be constitutional, see United            States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir. 1992); United            States v. Armijo, 834 F.2d 132, 134 (8th Cir. 1987); United            States v. Smith, 789 F.2d 196, 204-05 (3d Cir. 1986); United            States v. Stratton, 779 F.2d 820, 831-35 (2d Cir. 1985).                                        -62-                                         62            Hernandez, 862 F.2d 17, 23 (2d Cir. 1988).  In this case  the            record reveals that, during  his colloquies with Berger,  the            district                     judge                          repeatedly instructed him not to disclose how he            was voting or how  the deliberations had been going.   Still,            some of Berger's responses to the court's questions  arguably            suggest                    the                       possibility                                   that Berger may not have been persuaded            that                 the                     government had proven Barone guilty.  For example, on            October 27, 1993, Berger stated:                      It's just that  things I'd have  problems                      with                           if                              the                                  jury, say, is hung and someone                      thinks                             that                                  I had something to do with it.                      I  don't want  someone to  be pointing  a                      finger at me and saying, well, you  know,                      he                         defended                                  your cousin and you were going                      with him . . . .            And on October 28, 1993, Berger said:                      I don't feel  right. . .  . I don't  want                      anybody, whether  it  be someone  in  the                      general public finding out, or anybody up                      in                         the                             jury.                                    I don't want to be looked at                      as, well, you  know, he had a reason.   I                      don't want anyone to think how I vote,  I                      have a  reason to  do it  other than  the                      evidence presented in court.                      But, in  contrast  to Brown,  in which  the  record            evidence "indicate[d]  a substantial  possibility that  juror            Spriggs                    requested                              to                                be                                   discharged because he believed that the            evidence  offered  at  trial  was  inadequate  to  support  a            conviction,"                         823 F.2d at 596, here the record contains no true            evidence regarding Berger's views on the merits of the  case.            Moreover,                      the                         district                                  judge in this case "did not construe any            remark by Mr. Berger as a statement of how he was voting  and                                        -63-                                         63            certainly did  not consider which  party he  might have  been            supporting in deciding whether to excuse him."  United States            v. Barone, 846 F. Supp. at 1020.                      Thus,  in  contrast to  the  juror  in  Brown  (who            indicated to  the judge that he  was unable to discharge  his            duties                   because                          he                             disagreed with the RICO laws and was troubled            by the presentation  of evidence), Berger  was excused for  a            valid                  reason                         that                             was                                 entirely unrelated to the issue of how he            felt                 about                       the sufficiency of the government's proof; i.e., he            was excused  because the district  court determined that  his            receipt                    of                      extra-judicial information from the FPO had impaired            his ability to carry out his role fairly and impartially.                        We                         think                               that,                                    where,                                           as                                              here, a juror is removed for            a just cause  that is unrelated to  the juror's views of  the            sufficiency of the evidence, and there is no indication  that            the                removed                        juror was a holdout juror, Brown's admonition that            "a court may not dismiss a juror during deliberations if  the            request                    for                       discharge                                 stems from doubts the juror harbors about            the                sufficiency                            of                              the                                  government's evidence," 823 F.2d at 596,            does not apply.  We conclude that the district court did  not            abuse its discretion in permitting the eleven-member jury  to            deliberate                       to                          a                           verdict,                                    rather than declaring a mistrial.  See            United States v.  Gambino, 598 F.  Supp. 646, 660-61  (D.N.J.            1984)                  (stating                           that                               it                                  would have been "unthinkable" to declare            a mistrial rather than proceed with eleven jurors, given  the                                        -64-                                         64            investment of judicial resources in a six-week trial and over            twenty hours of  jury deliberation), aff'd, 788 F.2d 938  (3d            Cir. 1986).  See also United States v. Armijo, 834 F.2d  132,            135 (8th Cir. 1987) (holding that the district court did  not            abuse its discretion in  permitting an eleven-member jury  to            render a verdict in a five-day trial).                        Finally,  we  reject  Barone's  argument  that  the            verdicts                     in                        this                            case                                 were not unanimous, and therefore violate            the                Constitution, as merely a rephrasing of his constitutional            challenge to the verdict  rendered by an eleven-member  jury.            Although                     the                         Supreme Court has not ruled on the constitutional            permissibility                           of                             a                               less-than-unanimous verdict, see Apodaca v.            Oregon                 ,                    406                        U.S. 404 (1972), we have stated that "rendition of            a              verdict                      agreed                            to                               by                                  all jurors, after one juror with unknown            views has been dismissed for cause, is a unanimous  verdict,"            Walsh, 75 F.3d at 6.                                        -65-                                         65                                         V.                      For  the foregoing  reasons,  the judgment  of  the            district court is affirmed.                                        -66-                                         66
