          United States Court of Appeals
                     For the First Circuit

No. 11-1432

                         UNITED STATES,

                           Appellee,

                               v.

                       PATRICK DEHERTOGH,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                      Lynch, Chief Judge,

              Boudin and Thompson, Circuit Judges.


     Robert Herrick, by appointment of the court, for appellant.
     Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.



                        October 19, 2012
           BOUDIN, Circuit Judge. Patrick Dehertogh seeks review of

his conviction on a charge of conspiracy to collect debts by

extortionate means, 18 U.S.C. § 894 (2006), and collection (or

aiding and abetting collection, id. § 2) of debts by extortionate

means, id. § 894.    The evidence, taken in the light most favorable

to the verdict, supports the following outline of events.

           In August 2008, real estate developer Michael Carucci

sold, apparently at a substantial loss after renovations were taken

into account, a Boston condominium that he had purchased with

mortgage broker David Gefke.       Carucci assumed responsibility and

gave Gefke a signed promissory note for $47,000, but failed to make

the   promised   payments   on   time.    In   January   2010,   Gefke,   in

financial trouble and abusing drugs and alcohol, arranged to have

a fellow regular at the South Boston bar he frequented--Michael

"Mick" Lee--intimidate Carucci into paying the note.

           Lee, in turn, recruited two close friends, Brandon Milby

and the defendant Patrick Dehertogh.           There followed encounters

with Carucci at which Lee, Milby, and Dehertogh were all present:

           - On January 29, 2010, Lee, accompanied by
           Milby and Dehertogh, met Carucci in his
           office.    While Milby and Dehertogh stood
           inside the closed door with their arms folded,
           Lee told Carucci that he owed "an awful lot of
           money on the street" and that things could
           either be "very easy or very difficult." Lee
           then made a series of vague threats, such as,
           "I don't want to make your life uncomfortable
           at the Four Seasons," and, "I don't want . . .
           to go visit your home on the Cape." Carucci,
           after denying that he had any money, made out

                                    -2-
          a check for $1,000 and later provided a second
          check for the same amount.

          - On February 1, 2010, Lee, Milby, and
          Dehertogh went to the Four Seasons Hotel to
          confront Carucci, whose checks had bounced.
          While Dehertogh and a fourth man waited
          outside, Lee and Milby met with Carucci at the
          hotel's restaurant. More threats ensued, and
          Carucci surrendered his watch, promising
          before he left to hand over additional watches
          from his collection. Lee and Milby then rode
          off with Dehertogh and the other man, joking
          about how much they had frightened Carucci.

          Thereafter, without Dehertogh's involvement, Lee and

Milby continued attempting to collect from Carucci.              Carucci,

however, had reported Lee's threats to the Boston Police after the

first encounter at his office.      The FBI began investigating and

ultimately worked with Carucci to record telephone calls he placed

to Lee and Gefke.     In early February 2010, the FBI arrested Gefke,

Lee, Milby, and Dehertogh.

          All four were indicted on extortionate debt collection

charges in March 2010.      Gefke and Lee pled guilty and agreed to

testify against Dehertogh, who chose to go to trial.        (Milby later

pled guilty as well.)      Dehertogh's trial began on September 27,

2010, and at the end a jury convicted Dehertogh on the two counts

described at the outset of this decision.      He was later sentenced

to five years' imprisonment.

          On   this   appeal,   Dehertogh   does   not   claim   that   the

evidence presented was insufficient to show that he conspired to

commit, and then participated in, extortionate debt collection.

                                  -3-
Rather, he argues that his trial was tainted by the trial judge's

rulings relating to allegations of juror taint and by supposed

mistakes   in   the    judge's   instructions--or         failure     to    give

instructions--to the jury.       We consider these matters one by one

but find no reversible error.

           Dehertogh   lays   most    stress   on   the    handling    of   the

following incident.     Shortly after closing arguments, the judge

learned that when the courtroom clerk took the jurors out of the

courtroom, "more than one juror said to [the clerk] that they had

observed Brandon Milby in the courtroom and that he had been

smiling on occasion and they were concerned."             Milby in fact had

been in the courtroom during Lee's testimony and jurors apparently

were able to identify him from photographs introduced at trial.

           The judge advised both sides of the courtroom clerk's

report and, after pausing to confer with the clerk, added, "more

than that," the jurors "feel intimidate[d] [and] scared."                   The

judge suggested that he could address the matter with instructions

to the jury but invited counsels' views as to whether this would be

adequate and as to any proposed alternatives.         Dehertogh's counsel

urged that a mistrial was essential, summarizing his position

thusly:

           [T]his is a case about fear. It's a case that
           the government says is about fear occasioned
           by the presence of somebody. Now you've got
           jurors saying they're intimidated by the
           presence of Mr. Milby. . . . [T]hat's what
           this case is all about. From my perspective,

                                     -4-
          this is a case about Mr. Dehertogh being in an
          office and somebody saying that intimidated
          him.   And now the jurors, at least two or
          three jurors are saying they feel intimidated
          by the presence of one of the people who was
          in that office as well.

          The government said that an instruction would suffice

coupled with a collective invitation to the jurors to send a note

to the judge if any of the jurors still had concerns.            The judge

said that he would follow this course provisionally but would

reconsider   the   motion   for   a    mistrial   after   the   verdict   if

necessary.   After asking Dehertogh's counsel if he could "improve

upon the approach" suggested and receiving a negative answer, the

judge called the jurors into the courtroom and gave them the

following instruction:

                 One or more of you has noted an
          individual in the courtroom whom you recognize
          as Brandon Milby . . . and have expressed
          concern about what he's doing here. . . . So,
          let me give you some instructions, I guess,
          and then I'm going to privately ask you a
          question.

                 The instructions are this. I mentioned
          this once already. This is the case of the
          United States against Patrick Dehertogh. . . .
          Mr. Milby is not in custody. So, he's not in
          any sort of custody and whether or not there's
          any charges against him, you don't speculate
          about that. . . . Your concern is the case
          that the government has put on against Mr.
          Dehertogh. So, that's our focus here.

                 Now, because Mr. Milby is not in
          custody, as a citizen he has every right to
          come in the courtroom and if he's interested
          in what's going on here he has every right to
          be here.   Anyone has any right to be here.

                                      -5-
          . . . I can't shut those doors. That would
          . . . violate the rights of the litigants and
          it would violate the public's rights.

                 So, while I'm, I'm not clear what your
          concern is, it's undoubted that was Mr. Milby
          and he was here and he was watching.

                 I will say something about your
          personal information, names, what we learn
          from you on the jury list. That's not
          disclosed.    That's not public.     And I'm
          ordering that it not be made public.      The
          lawyers see that in the choosing of the jury,
          but they're officers of the Court. So I'm not
          making that public.

                 Now, that's all I'm going to say about
          this.    But since jurors, more than one,
          expressed a concern, what we'll do now is take
          a recess, about five minutes, and if any of
          you, I mean, search your consciences, honestly
          search your consciences, I'm not looking for
          an answer one way or another here, if any of
          you now, because this happened, and it did
          happen, if you have some concern about your
          ability to deliver a fair and an impartial
          verdict, fair to the government, equally fair
          to Mr. Dehertogh, what we call a true verdict,
          if you have any question about that, you don't
          have to explain yourself, just rip out from
          your notes that you do, and I need your name
          because I need to know who you are.

          After a five-minute recess, the court confirmed, "we're

all set to go, no notes."   The court then charged the jury, twice

making clear that jurors were not to consider Milby's presence,

including with a specific instruction to disregard "who was in the

courtroom or who wandered in or who wandered out."   Additionally,

the court replaced with an alternate the juror who had first

informed the courtroom clerk about the concerns regarding Milby.


                                -6-
            On appeal, Dehertogh presses his claim that the court's

precautions were insufficient and that a mistrial was required

because of Milby's presence. Our review of the court's handling of

the   incident     is    for   abuse    of    discretion,      United    States   v.

Rodríguez-Ortiz, 455 F.3d 18, 23 (1st Cir. 2006), cert. denied, 549

U.S. 1143 (2007), taking account of both the importance of an

impartial   jury and       the   practical      need for     latitude     when the

district judge      is    coping    with     one    of the   many fact-specific

problems    that    arise      during      trials,    see    United     States    v.

Paniagua-Ramos, 251 F.3d 242, 249-50 (1st Cir. 2001).

            Here, as a necessary first step to establish what had

happened, United States v. Tejeda, 481 F.3d 44, 52 (1st Cir.),

cert. denied, 552 U.S. 1021 (2007), the judge took it as settled

that Milby was present and that whatever his precise behavior or

countenance, some of the jurors perceived him as a threatening

figure.     A necessary further step is to consider whether what

happened created a potential for prejudice, id., and, from both the

judge's remarks and his decision that something should be done, he

clearly concluded that such a potential existed.

            The    remaining       question    is    whether    the     judge    took

reasonable and sufficient steps to guard against prejudice and

whether, in light of what transpired, the judge acted reasonably in

concluding that no further steps--such as conducting individual

voir dires or declaring a mistrial--were necessary to secure a fair


                                        -7-
trial for Dehertogh. See United States v. Bristol-Mártir, 570 F.3d

29, 42 (1st Cir. 2009).         Treating Dehertogh's claims as adequately

preserved,     several     different      considerations      persuade     us     that

sufficient precautions were taken.

              First, we begin with the nature and extent of potential

prejudice.      Dehertogh's own argument to the judge below captures

the principal danger--not that the jurors would be coerced by

threats, which might point toward acquittal, but that a perception

of   Milby    as   a   threatening      figure    might    make   more    vivid    the

government's depiction of Dehertogh. After all, the testimony made

it   appear    that     both   Milby    and    Dehertogh   were   largely    silent

sentinels whose role in the collection scheme was conveying to

Carucci a menacing aspect in support of Lee's threats.

              Yet it is not easy to see how the jury could have avoided

a similar, if less vivid, impression from the testimony alone.

Having a couple of tough-looking characters stand silently by while

veiled threats of violence are made in support of demands for money

is practically a stock scene in movies, television and detective

fiction with which few jurors could be unfamiliar.                   Dehertogh was

himself present during the threats at Carucci's office and no other

convincing explanation for his presence was ever provided to the

jury.

              Second,    we    must    consider   the     adequacy   of   the     jury

inquiry.      Here, the judge invited the jury to reflect briefly and


                                         -8-
then   to   advise   him   individually   if   any   of   them   remained

uncomfortable; none did.    This is not a perfect safeguard but it is

a significant one, and short of a mistrial--which has disadvantages

of its own--nothing is perfect once an untoward incident has

occurred.    The court's approach had the added benefit, if any

jurors did come forward, of providing an opportunity to assess each

concern and possibly replace a juror.

            Some judges would have conducted an individual voir dire

of each juror; others might believe that this might magnify to the

jurors the importance of the incident.          And while Dehertogh's

counsel preserved his mistrial request, he did not express a

preference for an individual voir dire as against a collective

request.    In all events, we think this choice was within the

discretion of the district judge as a reasonable way to narrow

those who might need to be privately interviewed.

            Third, potency of corrective instructions is always a

matter of speculation, but several of the points made by the judge

in this case were sensible, specific and ought to have carried

weight. One was that jurors were to focus on the admitted evidence

against Dehertogh and that Milby was not on trial; another was that

juror information was not public; and the last was that the jurors

needed to reflect and tell the court if any concerns remained about

their ability to serve impartially.




                                  -9-
            It is not clear why a juror who felt either compromised

or   personally    threatened     would    be    hesitant   about   saying   so

privately to the judge.       To do so would not necessarily threaten

the interests of or provoke opposition from jurors who wished to

continue.    And while one can always speculate about reasons why a

juror might feel prejudice but desire to continue, this is not an

obvious case to presume that an instruction would be useless.

            In urging that a mistrial was required, Dehertogh relies

on Remmer v. United States, 347 U.S. 227, 229 (1954), which

discerned a rebuttable presumption of prejudice in a criminal trial

where   there     occurs   "any   private       communication,   contact,    or

tampering directly or indirectly, with a juror . . . about the

matter pending before the jury."          The claim there--that an unknown

person had offered a juror a bribe--is miles away from a spectator

staring at the jury; and the quoted phrase, infinitely expandable,

has been read with circumspection in later cases.

            As we noted in United States v. Bradshaw, 281 F.3d 278,

287 (1st Cir.), cert. denied, 537 U.S. 1049 (2002), two later cases

"cabined" Remmer--Smith v. Phillips, 455 U.S. 209 (1982), and

United States v. Olano, 507 U.S. 725 (1993).            Indeed, the circuits

are divided on whether Remmer represents the current thinking of

the Supreme Court.     See United States v. Lawson, 677 F.3d 629, 643-

44 (4th Cir. 2012) (collecting cases).              This court continues to

assume that a presumption of prejudice exists but only "where there


                                    -10-
is an egregious tampering or third party communication which

directly injects itself into the jury process."         United States v.

Boylan, 898 F.2d 230, 261 (1st Cir.), cert. denied, 498 U.S. 849

(1990).

              Thus, in Tejeda, where jurors witnessed a courtroom

spectator make a throat-slitting gesture, 481 F.3d at 48, we deemed

the presumption inapplicable, id. at 51, and found that in any

event   the    district   court   handled   the   situation   properly   by

investigating the matter and taking steps to limit any prejudice,

id. at 54.      The district court took both these steps here and, if

a serious possibility of prejudice ever existed, we think the

absence of a juror response to the judge's invitation, coupled with

the curative instructions, amply resolved the matter.

              Dehertogh's other primary challenge on appeal is to the

district court's jury charge.         The court, after detailing the

elements of collecting an extension of credit by extortionate

means, explained aiding and abetting liability thusly:

              Now, suppose you think Mr. Dehertogh didn't do
              all these things himself but maybe he was in
              on it.   The government has also charged him
              with being an aider or abettor to that
              conduct. . . . They have to prove that he
              knew, he, Mr. Dehertogh, knew that other
              people, in this case, . . . engaged in a
              criminal enterprise, a specific criminal
              enterprise, to collect credit or attempt to
              collect it by extortionate means.
              . . .
              And then the government has to prove that Mr.
              Dehertogh did something to make that crime
              come about. Not that other people did it, Mr.

                                    -11-
          Dehertogh did it. And the government argued
          that at one stage he was a lookout, and then
          they argued at an earlier stage by his
          presence he lent muscle to the situation.
          Well, if he did and he knew that's what he was
          doing, and he was doing that intentionally,
          whether or not they had agreed before, he's
          aiding in the commission of a criminal act and
          he's liable to the same extent as Mr. Lee or
          Mr. Gefke if you believe they set it up.

          After the court charged the jury, Dehertogh's trial

counsel objected to "using the government's theory of the evidence,

specifically the lookout theory and the muscle theory" in the

charge, because it sent "a message to [the jury] that that is in

fact a credible interpretation." On appeal, Dehertogh enlarges the

claim somewhat by saying that the instruction was unbalanced and

that if the judge advanced the government's theory of the case, he

should have advanced Dehertogh's as well.

          Strictly speaking, it was up to the jury to decide

whether deliberately lending an appearance of "muscle" or acting as

a "lookout" was aiding and abetting, and it would have been cleaner

to choose other illustrations than the evidence in this case to

make clear that almost any act that contributes to the offense, if

undertaken with a purpose to advance the crime, creates liability.

But the judge was entitled to use such illustrations, see United

States v. Hernández, 490 F.3d 81, 84 (1st Cir.), cert. denied, 552

U.S. 983 (2007), and any he used (or none at all) would have led

the jury to the same conclusion.



                               -12-
          Dehertogh was free to argue that he was present at

Carucci's office with no intent to advance the crime or did not

present a menacing appearance on that occasion, and free as well to

argue that he had not been shown to have acted as a lookout at the

hotel.   Nothing in the judge's charge endorsed the government's

gloss on the facts.   But if the jury accepted that gloss, it surely

comprised aiding and abetting, and if jurors understood the breadth

of the aiding and abetting concept and accepted the government's

evidence, they were sure to convict.

          As for the alleged lack of balance, Dehertogh never asked

the court to present his own theory of the case, but the district

judge more or less did just this without being asked; after

delivering the above-quoted language, the judge closed the aiding

and abetting portion of the charge as follows:

          And before I leave this, it is not a crime to
          associate with people who are themselves
          criminals. It is not a crime to know that a
          crime is or will be committed and not to
          report it. It is a crime to want that crime
          committed and to do something, even as little
          as being a lookout, to help it be committed.
          That's aiding and abetting.   But just being
          friends with or associating with the wrong
          people, even if you know they're committing a
          crime, doesn't make you a criminal and you're
          under no obligation to report it.

          This made clear to the jury that mere association or

presence, even with knowledge that a crime was taking place, did

not constitute aiding and abetting; rather, Dehertogh had to take

some step to "help" the crime and for that purpose ("to want that

                                -13-
crime").    This fairly presented both sides' differing positions as

to how to interpret the evidence facing the jury.             This is quite

unlike United States v. Dove, 916 F.2d 41, 45 (2d Cir. 1990), cited

by Dehertogh, where the instruction encouraged jurors to disregard

eyewitnesses' failure to identify the defendant.

            Lastly,    Dehertogh   raises   a   set   of   claims   that,   he

concedes, were not preserved below, and so have to meet the

stringent "plain error" standard. United States v. Albertelli, 687

F.3d 439, 445 (1st Cir. 2012).       That test requires not only error,

but also that the error be plain, that the likely outcome would

have been different but for the error, and that an injustice would

occur were the error not corrected.         See United States v. Padilla,

415 F.3d 211, 218 (1st Cir. 2005) (en banc).           All four conditions

must be met.    See id.

            First, Dehertogh argues that the court failed to explain

that he could be convicted only if the government proved that an

alleged    principal   actually    committed    the   underlying    crime   of

extortionate debt collection.          True, the aiding and abetting

offense, unlike conspiracy and attempt, requires that the target

crime have been completed, 18 U.S.C. § 2; and the court slightly

blurred the point in saying that the government had to prove "that

other people, in this case, . . . engaged in a criminal enterprise,

a specific criminal enterprise, to collect credit or attempt to




                                    -14-
collect it by extortionate means."    Strictly, section 894 actus

reus is simply collection or attempting to collect by such means.1

          However, the district court had at the start of trial

made clear to the jury that convicting Dehertogh as an aider and

abettor required proof that "some person or persons" actually

committed extortionate debt collection.   And even if this were not

so, no one could doubt from Lee's own testimony that he had

committed the substantive offense.    Thus, the jury could hardly

have failed to convict if the judge had said more clearly that the

collection crime or an attempt at it had to have been proved to

have occurred.   See generally Neder v. United States, 527 U.S. 1,

19 (1999).

          Dehertogh's second claim concerns the district court's

instruction on the elements of extortionate debt collection, which

pertinently provided:

          Let's start with an extension of credit.
          That's a debt.      It doesn't have to be
          evidenced by a promissory note.    We are not
          concerned in this criminal case with how some
          civil case might come out and how the civil
          courts might adjudicate the liability of Mr.
          Carucci to Mr. Gefke.    But the government's
          got to prove that in the circumstances Mr.
          Carucci was potentially or actually liable, he
          owed Mr. Gefke money. A debt, an extension of
          credit. Our society runs on credit. And it's



     1
      The "enterprise" concept is central to the racketeering
statute familiarly known as RICO, 18 U.S.C. §§ 1961-1968, which is
often directed at extortionate debt collection; but no RICO offense
was charged in this case.

                               -15-
             perfectly legal.  So, they've got to prove
             that. That's the first thing.

             Collection of an "extension of credit" by forbidden

means, 18 U.S.C. § 894, presupposes that such a debt exists, and

Dehertogh argues that the district court's quoted instruction

effectively told the jury to find that a debt existed here when it

told the jury not to concern itself as to "how some civil case

might come out and how the civil courts might adjudicate the

liability    of   Mr.   Carucci   to     Mr.   Gefke."      Once      again,   the

instruction    might    have   been    cleaner   if    the statement      of   the

elements had not mingled descriptions of the facts of this case,

but no harm was done.

             Nevertheless,     Gefke   and Carucci       both   testified      that

Carucci owed Gefke money; and the district court's instruction is

best understood as telling the jury that it did not matter how

litigation over the debt might come out.              Dehertogh does not here

claim that it would matter whether Carucci had some prospect of

defeating a suit on the debt.          And, while the existence vel non of

such a debt was a matter for the jury if this was controverted,

there   is   no   likelihood    that    the    jury--given      the   undisputed

testimony from the creditor and the debtor--could have found that

no debt ever existed.

             The third and last supposed error Dehertogh claims is

that the district court failed sua sponte to instruct the jury to

disregard a specific sidebar exchange that Dehertogh claims the

                                       -16-
jury overheard.     In the sidebar, the prosecutor said that she was

leading Lee in her direct examination in order to avoid testimony

that he had taken a trip to Cape Cod with Dehertogh "to engage in

a drug transaction," prompting Dehertogh's counsel to "dispute that

Dehertogh went down there to do anything illegal."

           Dehertogh's counsel then informed the court that his

partner, sitting in the back of the courtroom, had said earlier

that "she could hear everything . . . at side bar" and apparently

signaled that she could hear the ongoing sidebar as well.              But

defense counsel made no request that the judge caution the jury to

ignore anything it might have heard of the sidebar, nor is it

certain that the jurors--told earlier that they were free to move

around during sidebars--heard or understood the substance of what

had been discussed.

           There may be rare cases where the prejudicial effect of

such a sidebar may be so evident and so extreme that the judge

should offer cautions where none was requested; but this is hardly

such a case.      The offense charged had nothing to do with drugs;

defense counsel had denied that Dehertogh was involved in anything

illegal; the judge had earlier warned the jury to ignore sidebar

conferences; and, of course, any new caution to the jury might only

have drawn attention to something that had passed unnoticed.

           In planning their appeal, losing counsel are entitled to

troll   through    transcripts   to   find   alleged   glitches   in   the


                                  -17-
instructions or other phases of the trial.     But for sound reason

the plain error rule creates a high threshold where the supposed

missteps are ones that no one noticed at the time or, if noticed,

thought worthy of a timely objection.   Whether error or no, none of

the unpreserved claims here, singly or together, suggests that the

outcome was affected.

          Affirmed.




                               -18-
