
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2273                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DAVID S. McKEEVE,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Daniel  L. Sharp,  with  whom  Elaine  Whitfield  Sharp  and               ________________               ________________________          Whitfield, Sharp & Sharp were on brief, for appellant.          ________________________               Despena Fillios Billings,  Assistant United States Attorney,               ________________________          with whom Donald K. Stern,  United States Attorney, was on brief,                    _______________          for appellee.                              _________________________                                   December 5, 1997                              _________________________                    SELYA,  Circuit Judge.    Defendant-appellant David  S.                    SELYA,  Circuit Judge.                            _____________          McKeeve assembles  a litany of  alleged errors in protest  of his          conviction  and  sentence.   His  flagship claim  requires  us to          investigate  the  circumstances  under  which  the  Confrontation          Clause  allows  a  prosecution  witness  to  testify  by  foreign          deposition  over  the  defendant's  objection.    After carefully          considering  this issue  (a matter  of  first impression  in this          circuit) and assaying the appellant's other points, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Mindful of the appellant's challenge to the sufficiency          of  the evidence, we limn the  facts in the light most flattering          to the jury's verdict.  See United States v. Staula, 80 F.3d 596,                                  ___ _____________    ______          599 (1st Cir.), cert. denied, 117 S. Ct. 156 (1996).                          _____ ______                    The appellant and his business partner, Shelagh McNeil,          both   citizens  of   the   United   Kingdom,   operated   McNeil          International,  Ltd. (MIL), a company organized under the laws of          Scotland.    Through   it,  the  pair  brokered   various  export          transactions.  In  1994, Peter Sullivan, the owner  of Afromed (a          Maltese firm), approached  the appellant about acquiring  a large          quantity  of  computer  equipment  for  the  Libyan   government.          McKeeve agreed to handle the transaction and began to investigate          its logistical aspects.                    McKeeve contacted  the United  Kingdom's Department  of          Trade and Industry (DTI) to ascertain whether British authorities          would require  him to obtain  an export license to  ship computer          equipment from the United Kingdom to Libya.  DTI advised him that                                          2          he  probably needed  such a  license, and  at  some point,  a DTI          official also informed  him that most computer  equipment shipped          to Libya wound  up in munitions factories.   Hot on the  heels of          this contact,  Eric Lane,  an investigator  for British  Customs,          paid the appellant  a visit.  Lane stated  that U.S. restrictions          on trade with Libya were more stringent than those of the  United          Kingdom,  and advised  McKeeve that  he  should confer  with U.S.          Customs  if he contemplated exporting computer equipment from the          United States.                    During  the fall  of 1995  the  appellant designated  a          Massachusetts  firm, New England Computer Exchange (NEXL), as the          vendor  of  choice to  supply  the  $300,000  worth  of  computer          equipment   needed  to  fill   Afromed's  order.     When  NEXL's          representatives (Cliff Rucker  and Deepak Jain) learned  that the          appellant wanted to  transship the equipment  through Cyprus    a          notorious   clearinghouse  for   goods  destined   for  embargoed          countries    they expressed  concern about  the ultimate  resting          place of the computer equipment.  The appellant prevaricated  and          told them that the goods were bound for Ethiopia.                    McKeeve  and   McNeil  proceeded   to  instruct   their          stateside  shipping agent,  Peabody and  Lane  (P&L), to  arrange          shipment only as far as  Cyprus.  Simultaneously, they directed a          British  shipping   agent,  Alex  Redpath,  to   arrange  freight          forwarding  to  Libya  and, when  Redpath  warned  that the  U.S.          trading  embargo  posed  potential  difficulties,  the  appellant          merely reiterated the instruction.                                          3                    On  October 12, 1995, the appellant oversaw the packing          of  the  computer  equipment  at  NEXL's  warehouse  in  Reading,          Massachusetts.   A  trucker delivered  the goods,  in  a shipping          container,  to port in  Charlestown, Massachusetts.   Acting on a          tip, the U.S. Customs Service ordered the container held at port.          Because this delay  threatened to undercut  the letter of  credit          that Afromed  had produced  to pay for  the goods,  the appellant          flew to Malta and met with Sullivan.                    At about the same time, the appellant instructed P&L to          discharge  the computer  equipment in  Antwerp,  Belgium (a  port          through  which it  already  was  scheduled to  pass  en route  to          Cyprus).   When a  P&L agent informed  McNeil about  this change,          McNeil  advised her  to  maintain  Cyprus as  the  port of  final          destination.    The  appellant  subsequently  confirmed  McNeil's          instruction.                    Despite  these  machinations,  the  computer  equipment          stayed put.  Although it originally was due to depart Charlestown          on October 18, it remained on customs hold a full week later.  On          October  25, McNeil contacted  NEXL's chief executive  and stated          that if he (Rucker) did not sign the Shipper's Export Declaration          (SED), a  U.S. Customs  export document  that lists, among  other          things, the ultimate destination of  the goods, no payment  would          be  forthcoming.   McNeil transmitted  an unsigned SED  to Rucker          that listed "Cyprus, Greece" as  the port of unloading and Greece          as the country of ultimate  destination.  Rucker called McNeil to          report  the apparent  discrepancy and  McNeil  instructed him  to                                          4          delete  Greece and  insert Ethiopia  as the  country of  ultimate          destination.  Rucker made the requested changes, signed  the SED,          and transmitted a facsimile to McNeil.  Notwithstanding the newly          executed SED, the customs hold endured.                    On   October  31,  the   U.S.  Customs  Service  became          convinced  that the  appellant  sought surreptitiously  to export          goods to Libya.  A customs agent, posing as a seaport supervisor,          convinced  the  appellant  to  return to  Boston  and  address  a          paperwork snafu that ostensibly prevented vacation of the customs          hold.  During a meeting  with undercover customs agents, captured          on  videotape,  the   appellant  vouchsafed  that  the   computer          equipment  was  destined for  Ethiopia  and signed  a  false SED.          Shortly thereafter, the  authorities arrested him and  seized the          computer equipment.                    A  federal grand jury indicted the appellant on charges          that  he  knowingly  violated  the  International  Emergency  and          Economic Powers Act  (IEEPA), 50 U.S.C.     1701-1706 (1994), and          its  associated Executive Orders and regulations, Exec. Order No.          12,924,  3 C.F.R. 917  (1994) & Exec. Order  No. 12,543, 3 C.F.R.          181 (1986),  both reprinted  in 50  U.S.C.    1701;  31 C.F.R.                          ____ _________  __          550.202 (1997);  15 C.F.R.     774.1,  785.7(a), 787.3(a),  787.6          (1997); conspired to  violate IEEPA, 18 U.S.C.    371 (1994); and          made false  statements to the  U.S. Customs Service, 18  U.S.C.            1001 (1994).  The grand jury also indicted McKeeve's and McNeil's          corporation, MIL, on  several related counts, but did  not charge          it with participating  in the conspiracy.  The  bill named McNeil                                          5          as an unindicted coconspirator, but  neither she nor Sullivan was          named as  a defendant (presumably  because they  were beyond  the          court's jurisdiction).                    At  trial, the appellant admitted that Libya always had          been  the  intended  destination  for  the   computer  equipment.          Nevertheless,  he professed that  he only belatedly  became aware          that his actions might violate U.S. law and that, when he learned          of  the problem,  he  tried  to "slow  down"  the transaction  by          discharging  the equipment  in Antwerp for  eventual sale  in the          United Kingdom.   He  attempted to explain  away his  false claim          that Ethiopia  was  the  country  of ultimate  destination  as  a          standard   broker's  business  practice   designed  to  mask  his          customer's identity.                    The jury  weighed  the  evidence,  concluded  that  the          appellant  knew   all  along   that  U.S.   law  prohibited   the          transaction,  and convicted  him on  all counts.   The  jury also          found MIL guilty  as charged.  The district  court sentenced both          defendants, but only McKeeve perfected an appeal.          II.  THE FOREIGN DEPOSITION          II.  THE FOREIGN DEPOSITION                    The  appellant objects in this court,  as he did below,          to admission at trial of  the deposition testimony of the British          shipping  agent, Alex Redpath.   His cardinal  contention is that          the  admission of  this evidence  abrogated his rights  under the          Confrontation Clause.  We exercise plenary review over this claim          of constitutional error.   See United States v.  Stokes, 124 F.3d                                     ___ _____________     ______          39, 42 (1st Cir. 1997).                                          6                                A.  Setting the Stage.                                A.  Setting the Stage                                    _________________                    The parties   who agree on little else   share the view          that  Redpath  was a  key  witness.   Initially,  the prosecution          gained  Redpath's assurances that  he would travel  to the United          States  and  testify at  the  trial.   As  the  day  of reckoning          approached, Redpath experienced a  change of heart.   Because the          district  court lacked subpoena power over Redpath (who lived and          worked  in Great  Britain),  the government  moved  for leave  to          depose him  abroad.   The motion invoked  a procedural  rule that          provides in pertinent part:                    Whenever due to  exceptional circumstances of                    the case  it is  in the  interest of  justice                    that the testimony  of a prospective  witness                    of a party be taken  and preserved for use at                    trial,  the court  may  upon motion  of  such                    party and  notice to  the parties  order that                    testimony  of   such  witness  be   taken  by                    deposition . . . .          Fed. R. Crim. P. 15(a).                    The government proposed  to mitigate any  Confrontation          Clause  issues by transporting  the appellant and  his counsel to          the site of the deposition and videotaping the proceedings.  This          proposal proved problematic  for two  reasons.   First, the  U.S.          Marshals  Service lacks jurisdiction to retain custody of federal          detainees on foreign soil and the Central Authority of the United          Kingdom would not agree to assume temporary custody of McKeeve so          that   he  could  attend   the  deposition.1     Second,  British                                        ____________________               1The  appellant asserts that  the government did  not make a          bona  fide effort  to  facilitate  his  attendance  at  Redpath's          deposition.    The  record,  which  includes  the  correspondence          between the two governments, refutes this assertion.                                          7          magistrates typically prohibit the videotaping and audiotaping of          depositions,  and  made  no  exception  in  this  instance.   The          district  court nonetheless found that Redpath was an unavailable          witness   and  that  the   interest  of  justice   warranted  the          deposition.   Working  within the  spare confines of  the British          scheme,  the court  directed  the  government  to  transport  the          appellant's  attorney  to  the  deposition  and  to  install  two          telephone lines    one that would allow the  appellant to monitor          the deposition from his prison  cell and another that would allow          him to consult privately with counsel during the deposition.  The          court  reserved a ruling  on the Confrontation  Clause objections          until the time of trial.                    Redpath's  deposition   was  taken  before   a  British          magistrate  in  the  Solihull  Magistrates'  Court,   Birmingham,          England.    Lawyers for  the government  and for  both defendants          attended and questioned  the deponent.  A solicitor  (who doubled          in    brass   as   the   clerk   of   the   Magistrates'   Court)          contemporaneously prepared a transcript.  The appellant monitored          the proceedings  by  means of  a  live telephone  link.   At  the          conclusion of the session, the solicitor certified the transcript          as accurate  and forwarded it  to the  district court.   When the          prosecution subsequently offered the  deposition at trial,  Judge          Keeton  overruled  the  appellant's objections  and  allowed  the          government to read it into evidence.                               B.  The Legal Landscape.                               B.  The Legal Landscape.                                   ___________________                    The use of  deposition testimony in criminal  trials is                                          8          disfavored, largely  because such  evidence tends  to diminish  a          defendant's  Sixth Amendment  confrontation rights.   See,  e.g.,                                                                ___   ____          United States  v. Drogoul,  1 F.3d 1546,  1551 (11th  Cir. 1993);          _____________     _______          United States v.  Mann, 590 F.2d 361,  365 (1st Cir. 1978).   But          _____________     ____          the  shrinking size  of  the globe  means  that certain  criminal          activities  increasingly  manifest an  international  cachet and,          because  federal courts  frequently lack  the  power to  compel a          foreign national's  attendance at  trial, Rule  15 may  offer the          only  practicable  means  of procuring  critical  evidence.   The          resultant  tension between  the defendant's  Confrontation Clause          rights and the prosecution's need to obtain evidence from persons          domiciled abroad, while  new to this circuit, threatens to become          a recurring theme.                    The  various subsections of  Rule 15 govern  the method          and  manner by  which depositions  in  criminal cases  are to  be          taken.   The  appellant  tacitly  concedes  that  the  taking  of          Redpath's  deposition  did  not   contravene  the  rule's  formal          requirements.    Nevertheless,  compliance  with  Rule  15  is  a          necessary,  but  not  sufficient,  condition  to  the  use  of  a          deposition at trial.  The admissibility of the testimony is quite          another  matter.   See Fed.  R. Crim.  P. 15(e).   The  appellant                             ___          cloaks himself  in  the mantle  of the  Confrontation Clause  and          makes his stand at this juncture.                    The Confrontation Clause's "central concern . . . is to          ensure  the  reliability  of  the  evidence  against  a  criminal          defendant by subjecting it to  rigorous testing in the context of                                          9          an adversary proceeding  before the trier of fact."   Maryland v.                                                                ________          Craig,  497 U.S.  836, 845  (1990).   The  Clause addresses  that          _____          concern principally by  affording a criminal defendant  the right          to confront  appearing witnesses  face to face  and the  right to          conduct rigorous cross-examination  of those witnesses.   See Coy                                                                    ___ ___          v. Iowa, 487 U.S. 1012, 1017 (1988); Pennsylvania v. Ritchie, 480             ____                              ____________    _______          U.S.  39, 51 (1987);  see also Ohio  v. Roberts, 448  U.S. 56, 63                                ___ ____ ____     _______          (1980)  (discussing the  Confrontation  Clause's "preference  for          face-to-face  confrontation").     Ordinarily,  then,  when   the          government purposes to introduce a deposition at trial in lieu of          live testimony,  a defendant has  the right to be  present during          the  deposition  so that  he  may  confront  the deponent.    See                                                                        ___          Christian v. Rhode, 41 F.3d 461, 465 (9th Cir. 1994); Don v. Nix,          _________    _____                                    ___    ___          886 F.2d 203, 206 (8th Cir. 1989).                    Withal,  we  know on  the  best of  authority  that the          Confrontation Clause cannot be applied mechanically, but, rather,          must be interpreted  "in the context of the  necessities of trial          and the adversary  process."  Craig, 497  U.S. at 850.   In other                                        _____          words,  the  right  of  confrontation  is  not  absolute.    Yet,          filtering  constitutional  concerns  through  a  seine  woven  of          practical   necessity  is   a  tricky  business,   and  different          situations likely will yield different accommodations.                    When the  government conducts a Rule 15 deposition in a          foreign  land with  a view  toward introducing  it at  trial, the          Confrontation  Clause requires, at a minimum, that the government          undertake  diligent   efforts  to   facilitate  the   defendant's                                          10          presence.  See United States v. Kelly, 892 F.2d 255, 262 (3d Cir.                     ___ _____________    _____          1989); United States v. Salim, 855  F.2d 944, 950 (2d Cir. 1988).                 _____________    _____          We  caution,  however,   that  although  such  efforts   must  be          undertaken  in good  faith,  they  need not  be  heroic, and  the          possibility of  using a  deposition does  not  evaporate even  if          those efforts prove fruitless.   In that event the district court          must  determine,  on a  case-specific  basis, whether  reasonable          alternative  measures  can  preserve adequately  the  values that          underpin  the defendant's confrontation  rights.  In  cases where          actions by, or the laws of, a foreign nation effectively preclude          the  defendant's  presence,  furnishing  the defendant  with  the          capability for  live monitoring of  the deposition, as well  as a          separate (private) telephone line for consultation with  counsel,          usually will  satisfy the  demands of  the Confrontation  Clause.          See United  States v. Mueller,  74 F.3d 1152, 1156-57  (11th Cir.          ___ ______________    _______          1996); Kelly, 892 F.2d at 260; Salim, 855 at 950.                 _____                   _____                    C.  The Appellant's Constitutional Challenge.                    C.  The Appellant's Constitutional Challenge.                        ________________________________________                    In this case,  the record reveals that  the prosecution          made  reasonable and diligent  efforts to secure  the appellant's          attendance at  Redpath's deposition:   it offered  to defray  the          cost  of  transporting the  appellant  and  his  counsel  to  the          deposition   and  requested   that  British   authorities  accept          temporary custody of  him to ensure his presence.  Only a lack of          cooperation   by  the   host  nation   stymied  the   appellant's          appearance,  and the Justice  Department was powerless  to coerce          British assistance.   The appellant  points to nothing  more that                                          11          the prosecution plausibly  could have done to  facilitate a face-          to-face   confrontation.    What   is  more,  when   the  British          authorities   balked,   Judge  Keeton   fashioned   a  reasonable          alternative,   and  the   prosecution   provided  the   requisite          telephonic  links between  the appellant's  prison  cell and  the          Solihull Magistrates' Court.  Under the prevailing circumstances,          the   government's  efforts  to  secure  (or,  alternatively,  to          approximate) a  face-to-face confrontation  were constitutionally          adequate.                    This   finding,  in   itself,  does   not  defeat   the          appellant's constitutional challenge.  Face-to-face confrontation          in a  courtroom setting  has yet another  virtue; it  permits the          trier of fact better to observe a witness's demeanor.  See Craig,                                                                 ___ _____          497  U.S. at 846;  Drogoul, 1 F.3d  at 1552.   Like the  right of                             _______          confrontation itself, however, this value is not absolute.  Thus,          even  when a  witness is  unavailable  to testify  at trial,  the          Clause  countenances  the  admission  of  certain   extrajudicial          statements   as  long  as  they  possess  sufficient  indicia  of          reliability.  See Roberts, 448 U.S. at 65-66; Puleio v. Vose, 830                        ___ _______                     ______    ____          F.2d 1197, 1205 (1st Cir. 1987).                    For  this  purpose,  "[r]eliability   can  be  inferred          without  more in a case where  the evidence falls within a firmly          rooted hearsay exception."   Roberts, 448 U.S.  at 66.  So  it is                                       _______          here:   Fed.  R. Evid.  804(b)(1) limns  a hearsay  exception for          former testimony  of an  unavailable witness.   This  exception's          roots are deeply embedded in  American jurisprudence.  See, e.g.,                                                                 ___  ____                                          12          Mattox v. United States, 156 U.S. 237, 240-44 (1895).  Consistent          ______    _____________          with   this  tradition,  courts  seem  disinclined  to  find  any          Confrontation Clause  transgression when  the prosecution  offers          deposition testimony under this rule.  See, e.g., Ecker v. Scott,                                                 ___  ____  _____    _____          69 F.3d 69, 71 (5th Cir. 1995); Kelly, 892 F.2d at 261-62; Salim,                                          _____                      _____          855 F.2d at 954-55.  We join  these courts and hold that evidence          properly within  the former  testimony hearsay  exception is,  by          definition,   not  vulnerable  to  a  challenge  based  upon  the          Confrontation Clause.                    To  bring  Redpath's  testimony within  the  protective          embrace of this  holding, the government had to  make a threshold          showing (1)  that the witness  was unavailable, and (2)  that the          deposition constituted former testimony.  The appellant  contests          both points.                    The  standard test  for unavailability  is  whether the          witness's  attendance  could  be procured  "by  process  or other          reasonable  means."   Fed. R.  Evid.  804(a)(5).   In a  criminal          context, however, Confrontation  Clause concerns  color the  Rule          804  availability inquiry and  heighten the  government's burden.          See Ecker, 69 F.3d at 71-72.  Thus, the prosecution must actively          ___ _____          attempt  to  secure   the  witness's  presence  at  trial.    See                                                                        ___          Christian, 41  F.3d  at  467.   Here,  as  we  noted  above,  the          _________          government made an assiduous effort to convince Redpath to attend          the  trial.   We  fail to  discern any  further  action that  the          prosecutor  reasonably  could  have taken  to  bring  the witness          before the jury.                                          13                    The remaining question  is whether Redpath's deposition          amounted  to "former  testimony"  within the  purview of  Fed. R.          Evid. 804(b)(1).   The appellant's  objection on this score  is a          bare assertion that the method of transcribing the proceeding was          "slow and inexact."2  We  must balance this complaint against the          dominant   characteristics   of  the   deposition,   namely,  the          administration of an oath; unlimited direct and cross-examination          by attorneys  for all parties;  the ability to  lodge objections;          oversight  by  a   judicial  officer;  the  compilation   of  the          transcript by  a trained  solicitor; and the  lack of  a language          barrier.                    To  be  sure, the  deposition  did not  comport  in all          respects with American practice, but that circumstance alone does          not  render the  testimony  not  "in  compliance  with  law"  and          therefore beyond the  reach of Rule 804(b)(1).  We agree with the          Second Circuit that "unless the manner of examination required by          the  law  of  the  host   nation  is  so  incompatible  with  our          fundamental principles  of fairness or so prone  to inaccuracy or          bias  as to render  the testimony inherently unreliable,  . . . a          deposition taken  . . .  in accordance with  the law of  the host          nation is  taken `in  compliance with law'  for purposes  of Rule          804(b)(1)."   Salim,  855 F.2d  at 953.   The  British proceeding                        _____                                        ____________________               2The  appellant   offers  no  convincing  examples   of  any          inexactitude.   His  only  supporting  datum  is  an  unamplified          statement  by  counsel  for  MIL,  as follows:    "There  is  one          particular  phrase that has    that is a  crucial question that I          remember  going  in  as  a different  question."    The  specific          question and answer never have been identified.                                          14          substantially  jibes with  our practice  and  thus satisfies  the          rule.                    The  appellant's  final  plaint  is  that  the  Redpath          deposition was not  videotaped.  History undermines  this plaint.          The  former  testimony  exception  to  the  Confrontation  Clause          predates  the development of  videotaping technology by  nearly a          century.  See Mattox,  156 U.S. at 240-44.   Thus, the  exception                    ___ ______          obviously does not envision the need to present the trier of fact          with a video recording  of the declarant's testimony.   In a case          like this one   where the host nation prohibits videotaping   the          district  court's refusal to  condition its authorization  of the          deposition on  the use  of such  a technique did  not offend  the          Constitution.                    We hasten  to add, however, that our opinion should not          be read to  discourage the use of videotaped  depositions in this          type  of  situation.    Having  the trier  of  fact  observe  the          testimonial  demeanor   of   the   witness   enhances   important          Confrontation Clause values, including the perception of fairness          in criminal trials.  See Craig, 497 U.S. at 846; Coy, 487 U.S. at                               ___ _____                   ___          1018-20.     For  these  reasons,  although  videotaping  is  not          constitutionally  required,  we  urge  the  district  courts,  if          videotaping  is   feasible,  to  give  serious  consideration  to          granting defendants' requests to employ the technique.                    To  sum up, the  Redpath deposition satisfies  the Rule          804(b)(1)  standard.   Moreover,  the very  characteristics which          contribute to that conclusion    e.g., administration of an oath;                                          15          unlimited   direct  and   cross-examination;  ability   to  lodge          objections; oversight by  a judicial officer; compilation  of the          transcript by a trained solicitor; and linguistic compatibility            also provide  sufficient indicia  of reliability  to assuage  any          reasonable  Confrontation Clause concerns.  See Roberts, 448 U.S.                                                      ___ _______          at 66; Salim, 855 F.2d at 954-55.  The district court did not err                 _____          in admitting the deposition testimony into evidence.          III.  THE CONSPIRACY CONVICTION           III.  THE CONSPIRACY CONVICTION                     The appellant launches a  barrage of nearly unthirlable          arguments  directed  toward  his  conviction  for  conspiracy  to          violate IEEPA.  These arguments land well wide of the mark.                    IEEPA  codifies Congress's intent  to confer  broad and          flexible power upon the President to impose  and enforce economic          sanctions against  nations that the  President deems a  threat to          national security interests.   See United States v.  Arch Trading                                         ___ _____________     ____________          Co., 987 F.2d  1087, 1093-94 (4th  Cir. 1993).   Included in  the          ___          President's IEEPA authority is the right to prohibit persons from          engaging  in  commercial transactions  with such  hostile foreign          nations.  See  U.S.C.   1702(a)(1)(B).  The  appellant reads this                    ___          provision  as applying  only to  persons who  are subject  to the          jurisdiction  of the  United  States.   He  then  posits that  as          neither of his  supposed accomplices fell within  the territorial          jurisdiction  of  the  United States  when  the  events  at issue          transpired   McNeil and Sullivan are  domiciliaries of the United          Kingdom  and Malta, respectively, and neither of them entered the          United States during  the relevant time frame   they could not in                                          16          terms violate IEEPA.  A  person cannot conspire with himself, the          appellant's thesis runs, and to suggest that McNeil  and Sullivan          were coconspirators  in this  matter implies  that IEEPA's  reach          extends extraterritorially    a result inconsonant with  both the          statutory  text   and   the   traditional   presumption   against          extraterritoriality.   See United  States v. Nippon  Paper Indus.                                 ___ ______________    ____________________          Co.,  109 F.3d  1, 3  (1st Cir.),  petition for  cert.  filed, 65          ___                                ________ ___  _____  _____          U.S.L.W. 3839 (U.S. June 13, 1997) (No. 96-1987).   Based on this          reasoning,  the  appellant  concludes that  any  agreement  among          McNeil,  Sullivan,  and  himself concerning  the  exportation  of          computers  to  Libya  cannot  form  the  basis  for a  conspiracy          conviction.                    This  theory  is  both procedurally  and  substantively          infirm.  As  a matter of procedure, the theory makes its debut in          McKeeve's appellate brief, and "[i]f any  principle is settled in          this  circuit,  it   is  that,  absent  the   most  extraordinary          circumstances,  legal theories not  raised squarely in  the lower          court  cannot  be  broached  for  the  first  time  on   appeal."          Teamsters, Chauffeurs, Warehousemen & Helpers Union  v. Superline          ___________________________________________________     _________          Transp. Co.,  953 F.2d  17, 21  (1st Cir.  1992).   There are  no          ___________          excusatory circumstances here.                    Despite this procedural  default, we could still,  as a          matter of discretion,  review the argument for plain  error.  See                                                                        ___          United States v. Taylor,  54 F.3d 967, 972 (1st Cir.  1995).  But          _____________    ______          so detailed a review is unnecessary here, for there is  no error,          plain or otherwise.  The  appellant's theory overlooks a critical                                          17          component  of IEEPA's  framework.    Among  other  things,  IEEPA          expressly   confers  on  the  President  the  power  to  prohibit          commercial  transactions  with  certain   foreign  nations  "with          respect to any property . . . subject to the jurisdiction  of the          United States."  50 U.S.C.    1702(a)(1).  The computer equipment          around  which the conspiracy centered was stored in Massachusetts          and  unquestionably subject  to the  jurisdiction  of the  United          States.  Accordingly,  as long as either McNeil  or Sullivan knew          the  locus of the equipment and knew that U.S. law prohibited its          export to Libya,3 the ensuing agreement with the appellant had an          unlawful  design  sufficient to  animate  the  federal conspiracy          statute.                    In the case at hand, the government adduced ample proof          of both propositions.  The record contains abundant evidence that          McNeil,  at  least, was  aware  of U.S.  export  restrictions and          purposefully sought  to evade them.   Of particular note  are her          successful  efforts to  coerce Rucker  into signing  an SED  that          falsely described  the ultimate destination of the  goods and her          countermanding of the suggestion that  the goods be discharged in          Antwerp.  In addition,  the nisi prius roll shows  beyond hope of          contradiction  that the  appellant  performed  an  overt  act  in          furtherance of  the conspiracy  when he  purchased the  equipment                                        ____________________               3To  support the conviction,  the government only  needed to          prove that  the appellant conspired  with one other person.   See                                                                        ___          United States  v. Josleyn,  99 F.3d 1182,  1190 (1st  Cir. 1996),          _____________     _______          cert.  denied, 117  S.  Ct.  959 (1997).    The government  never          _____________          alleged that MIL was a coconspirator, so our choice is limited to          McNeil or Sullivan.                                          18          from NEXL  in Massachusetts  and attempted to  ship it  to Libya.          McKeeve's purchase  supplied the final  piece of proof  needed to          ground a conviction on the conspiracy count.  See Ford  v. United                                                        ___ ____     ______          States, 273 U.S. 593, 620 (1927) (holding that, when a conspiracy          ______          "was directed  to violation of  the United States law  within the          United States by  men within and without it,  and everything done          was at the procuration and by the agency of each for the other in          pursuance of the conspiracy . .  . all are guilty of the  offense          of conspiring to  violate the United States law  whether they are          in or out  of the country"); United  States v. Inco Bank  & Trust                                       ______________    __________________          Corp.,  845 F.2d  919,  920  n.4 (11th  Cir.  1988) (per  curiam)          _____          (noting "that  a conspiracy  occurring partly  within the  United          States   is  prosecutable  without   resort  to  any   theory  of          extraterritorial jurisdiction"); Rivera v. United States, 57 F.2d                                           ______    _____________          816,  819  (1st Cir.  1932)  ("The  place  of the  conspiracy  is          immaterial   provided  an  overt  act  is  committed  within  the          jurisdiction of the court.").  No more is exigible.          IV.  OTHER ALLEGED TRIAL ERRORS          IV.  OTHER ALLEGED TRIAL ERRORS                    The  appellant  raises  a host  of  issues  that relate          loosely  to his oft-repeated claim that he did not receive a fair          trial.   Individually,  these issues  are  insubstantial, and  in          combination they produce no synergistic effect.                        A.  Admission of Sullivan's Statement.                        A.  Admission of Sullivan's Statement.                            _________________________________                    In  a  protest  that  harks  back  to  his  sufficiency          challenge,  the appellant takes umbrage with the district court's          decision to admit,  over his objection, evidence  of certain out-                                          19          of-court  statements allegedly made by Sullivan to third parties.          The  statements, as recounted by Redpath, specifically linked the          appellant to Sullivan; showed that Sullivan acted throughout with          a view toward transshipping the computer equipment through Cyprus          to  Libya;  and  undermined the  appellant's  testimony  that his          attempt to off-load the equipment in Antwerp was not a ruse, but,          rather, a sincere effort to  abort the transaction once he became          aware  that it  would violate  U.S. law.   We  customarily review          decisions to  admit or exclude evidence for  abuse of discretion,          see  United States  v. Houlihan,  92  F.3d 1271,  1296 (1st  Cir.          ___  _____________     ________          1996), cert.  denied, 117 S.  Ct. 963 (1997), and  we follow that                 _____  ______          praxis here.                    The trial court admitted the challenged evidence on the          authority  of  Fed.  R.  Evid.  801(d)(2)(E),  which  creates  an          exception to the hearsay rule for  extrajudicial statements "by a          coconspirator of a party during  the course and in furtherance of          the  conspiracy."   The appellant's  principal  objection to  the          court's action stems  from his extraterritoriality argument.   We          previously rejected  that argument, see  supra Part III,  and the                                              ___  _____          theory  that undergirds  it  fares no  better  in an  evidentiary          context.                    The second  prong of the appellant's objection suggests          that  the  government  did  not  adduce  sufficient  evidence  of          Sullivan's involvement to  bring his statements within  the reach          of Rule  801(d)(2)(E).  This  prong rests on an  impeccable legal          foundation.    An  out-of-court  statement  of  a  non-testifying                                          20          coconspirator is admissible  under Rule 801(d)(2)(E) only  if the          district court supportably finds that "it is more likely than not          that  the  declarant  and  the  defendant  were  members  of  the          conspiracy when  the  hearsay statement  was made,  and that  the          statement was in furtherance  of the conspiracy."  United  States                                                             ______________          v. Petrozziello, 548  F.2d 20, 23 (1st Cir.  1977); accord United             ____________                                     ______ ______          States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992).          ______    _____                    Factually,  however,  the  objection falls  flat.   The          government showed  that Sullivan  headed Afromed;  that his  name          appeared   on  numerous   documents  created   pursuant  to   the          transaction;  that he was in constant  contact with the appellant          regarding the status of the project (including the customs hold);          and  that he was  responsible for arranging  transshipment of the          goods to the Libyan purchaser.  The record also shows that, while          in the  United States,  the appellant sent  Sullivan a  memo that          advised Sullivan to use extreme  caution in contacting him and to          be very careful what he said in any such communication.  In light          of  this  evidentiary   predicate,  the  district  court   had  a          reasonable  basis  for  concluding that,  more  likely  than not,          McKeeve  and Sullivan  were  coconspirators and  that  Sullivan's          comments to  Redpath were made  during and in furtherance  of the          conspiracy.   Consequently,  the  decision  to  admit  Sullivan's          hearsay  statements under  the  coconspirator  exception did  not          constitute an abuse of discretion.                          B.  Admission of Lane's Testimony.                          B.  Admission of Lane's Testimony.                              _____________________________                    During  trial, Eric Lane,  a British  customs official,                                          21          testified that  the appellant  spoke to  him anent  DTI's earlier          warning that  virtually all computers  sent to Libya ended  up in          arms  factories.   The appellant  objected to  this  testimony on          relevancy  grounds and added  that, to  the extent  the testimony          might  otherwise be  admissible, it  was unduly prejudicial.   He          argued  then, and  reasserts now,  that since  U.S. law  bans the          export  of any product  (except certain humanitarian  aid) to any          Libyan entity, the fact that  a DTI official had warned him  that          computer shipments would be used to outfit Libyan arms  factories          is irrelevant  to any crime charged  in the indictment.   For its          part, the government points to the appellant's admission  that he          knew all along  that the U.S. embargo at  least paralleled United          Nations  sanctions   (which  explicitly  prohibit   the  sale  of          equipment destined for  Libyan military applications),  and that,          in light of this  admission, Lane's testimony tended  to undercut          the appellant's  claim  that  he  did  not  realize  the  Afromed          transaction transgressed U.S. law.                    The district court accepted  the government's position,          but told the jury that  it could consider the proffered testimony          only with  regard to  McKeeve's state of  mind (i.e.,  whether he          plotted to contravene  the Libyan embargo in knowing violation of          IEEPA) and  not for the truth of the  matter asserted.  We review          this decision  for abuse of discretion.  See Houlihan, 92 F.3d at                                                   ___ ________          1297.  We detect no abuse either in the trial court's decision to          admit Lane's testimony as probative of McKeeve's state of mind or          in its refusal to exclude the proffer under Fed. R. Evid. 403.                                          22                    The relevancy objection requires  scant comment.   Fed.          R. Evid.  401 deems relevant  evidence that has "any  tendency to          make  the existence  of any fact  that is  of consequence  to the          determination of the action more  probable or less probable  than          it  would  be  without the  evidence."    The  instant indictment          charged the appellant with knowingly and willfully violating, and          conspiring to violate, IEEPA.  His state of mind, assessable only          by  indirect proof,  see United  States v.  St. Michael's  Credit                               ___ ______________     _____________________          Union,  880  F.2d 579,  600  (1st  Cir.  1989), was  of  critical          _____          importance to the resolution of these charges.  When, as now, the          prosecution offers evidence  bearing on an inherently  subjective          inquiry, the  relevancy threshold is  at its lowest.   See United                                                                 ___ ______          States v. Tierney,  760 F.2d 382, 387  (1st Cir. 1985).   Seen in          ______    _______          this light,  Judge Keeton reasonably could conclude   as, indeed,          he did    that McKeeve's knowledge of  the likely end use  of the          computer equipment tended to make less probable his state-of-mind          defense.    Hence,  the  judge  did  not  err  in  admitting  the          statement.                    The Rule 403  objection is similarly unavailing.   That          rule directs a trial court to exclude relevant evidence if, inter                                                                      _____          alia, "its  probative value  is substantially  outweighed by  the          ____          danger of unfair prejudice."  But almost all evidence is meant to          be prejudicial   why else would  a party seek to introduce it?             and  it  is  only  unfairly  prejudicial evidence  that  must  be          banished.   See United States v. Rodriguez-Estrada, 877 F.2d 153,                      ___ _____________    _________________          156  (1st Cir.  1989).    Although the  Lane  testimony may  have                                          23          prejudiced the  appellant in  the sense that  it fit,  tongue and          groove,  into the  prosecution's  theory of  the  case, there  is          nothing unfair  about the jury's  weighing of it for  the limited          purpose of determining  the appellant's state of mind.   For this          reason, we decline the appellant's invitation to second-guess the          district  judge's evidentiary gravimetry.  See Freeman v. Package                                                     ___ _______    _______          Mach. Co., 865 F.2d  1331, 1340 (1st Cir.  1988) ("Only rarely             _________          and in extraordinarily  compelling circumstances   will  we, from          the vista of a cold  appellate record, reverse a district court's          on-the-spot   judgment  concerning   the  relative   weighing  of          probative value and unfair effect.").                         C.  Admission of Harmon's Testimony.                         C.  Admission of Harmon's Testimony.                             _______________________________                    The appellant also cries foul in respect to a statement          made at trial by David Harmon, a Treasury Department official, to          the effect  that the U.S.  embargo against Libya resulted  from a          presidential  determination  that  Libya  supports  international          terrorism.  Because the appellant did not lodge a contemporaneous          objection  to  this  testimony, we  ordinarily  would  review his          belated challenge for plain error.  See United States v. Griffin,                                              ___ _____________    _______          818  F.2d  97,  99-100  (1st  Cir. 1987).    Here,  however,  the          circumstances  obviate any need to  engage in plain error review.          See United States v. Castro-Lara, 970 F.2d 976, 981 n.5 (1st Cir.          ___ _____________    ___________          1992) (explaining that, if  no error inheres, plain error  review          becomes a superfluous step).                    The government called Harmon to establish the existence          and  effect  of  the economic  sanctions  imposed  against Libya.                                          24          Harmon's description of  the purpose behind the  embargo provided          the  jury with  relevant background  information  that helped  to          stitch together an  appropriate context in  which the jury  could          assess  the  evidence  introduced during  the  trial.   Admitting          Harmon's statement  was well  within the  realm  of the  district          court's discretion.   See, e.g.,  Castro-Lara, 970  F.2d at  981;                                ___  ____   ___________          United  States v.  Daly,  842  F.2d 1380,  1388  (2d Cir.  1988).          ______________     ____          Trials are meaty affairs, and  appellate courts should not insist          that all  taste be extracted  from a piece  of evidence before  a          jury can chew on it.                            D.  Prosecutorial Misconduct.                            D.  Prosecutorial Misconduct.                                ________________________                    The appellant's next assignment of error  is predicated          on a  claim  that the  prosecutor overstepped  her bounds  during          opening and  closing arguments.   This claim is  a superscription          that grows out of the prosecutor's references to Lane's testimony          in her  opening  statement  and  to  Harmon's  testimony  in  her          summation.  Because the prosecutor, on each occasion, did no more          than describe accurately  testimony that the  jury would hear  or          already  had heard, the  assignment of error fails.   At least in          the  absence of  highly  exceptional circumstances  (not  present          here), a comment by counsel in  the course of jury summation that          merely  recounts  properly  admitted  testimony,  accurately  and          without embellishment or distortion, cannot constitute reversible          error.  See  Jentges v. Milwaukee County Circuit  Court, 733 F.2d                  ___  _______    _______________________________          1238, 1242 (7th Cir. 1984).  So, too, a comment  in the course of          an  opening statement that  merely presages subsequently admitted                                          25          testimony cannot constitute reversible error.  See id.                                                         ___ ___          V.  SENTENCING          V.  SENTENCING                    The  district court sentenced the appellant to a prison          term  of 51  months,  the  low end  of  the applicable  guideline          sentencing range (offense level 24; criminal history category I).          Salvaging scant succor from  this fact, the appellant  strives to          persuade  us that  the  court  made two  material  errors in  its          sentencing calculations.  We are unconvinced.                      A.  Evasion of National Security Controls.                      A.  Evasion of National Security Controls.                          _____________________________________                    With respect to export control offenses, the sentencing          guidelines provide  for a base  offense level (BOL) of  14 unless          "national  security  or   nuclear  proliferation  controls   were          evaded," in which case the BOL escalates to 22.   USSG  2M5.1(a).          The lower  court found that  the offense of  conviction qualified          for the eight-level enhancement.  The  appellant claims that this          ruling  is  based on  an  erroneous  reading  of the  enhancement          provision.  Because  this claim implicates the  meaning and scope          of the guideline, our  review is plenary.   See United States  v.                                                      ___ _____________          Muniz, 49 F.3d 36, 41 (1st Cir. 1995).          _____                    The  appellant's   core   contention   is   that   USSG           2M5.1(a)(1)  cannot apply  in a  sale-of-goods  case unless  the          government presents evidence  that the particular goods,  when or          if sold,  constitute an actual  threat to national security.   We          disagree.    In   Executive  Order  No.  12,543,   the  President          determined  that Libya posed an "unusual and extraordinary threat          to the national security and foreign policy of the United States"                                          26          and  therefore ordered  an embargo  covering  the exportation  of          virtually all  goods to  Libya.   The embargo  is an  exercise of          executive power authorized by IEEPA "to deal with any unusual and          extraordinary threat .  . . to the national security."  50 U.S.C.            1701.  In short, the embargo is intended as a national security          control.                    That   ends  the  matter.    As  we  read  it,  section          2M5.1(a)(1) applies to  any offense that involves  a shipment (or          proposed shipment)  that offends the embargo, whether  or not the          goods shipped actually  are intended for some innocent  use.  See                                                                        ___          United States v. Shetterly, 971 F.2d 67, 76 (7th Cir. 1992).  The          _____________    _________          appellant's  argument to  the contrary  seeks  to substitute  the          judgment of a factfinder for  that of the executive branch, which          has made  a determination that the export  of any goods to Libya,          excepting  only  certain  humanitarian  aid,  threatens  national          security interests.  Such a course is fraught with separation-of-          powers perils, see Department of the Navy v. Egan, 484 U.S.  518,                         ___ ______________________    ____          527 (1988)  (noting the primacy of presidential  power to protect          national security interests), and we eschew it.                             B.  Obstruction of Justice.                             B.  Obstruction of Justice.                                 ______________________                    The   appellant's   remaining  complaint   is   equally          unavailing.    At  the disposition  hearing,  the  district court          increased the  appellant's BOL for  obstruction of justice.   See                                                                        ___          USSG  3C1.1.   The  court based this  two-level enhancement  on a          finding  that McKeeve committed perjury when he testified that he          did  not  know  his  actions  violated U.S.  law.    We  review a                                          27          sentencing  court's factbound finding of perjury for clear error.          See United States v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).          ___ _____________    _______                    Before imposing an  obstruction of justice  enhancement          predicated  on  perjurious  testimony,  a sentencing  court  must          survey the  trial evidence  to ascertain  whether it  establishes          that  the defendant gave  "false testimony concerning  a material          matter  with the willful intent to provide false testimony rather          than  as  a result  of  confusion,  mistake, or  faulty  memory."          United States v. Dunnigan,  507 U.S. 87, 94 (1993).   The court's          _____________    ________          findings need  not be precise  to the  point of pedantry.   While          separate   findings  as  to  each  element  are  preferable,  the          sentencing court's  determination is  sustainable so  long as  it          "encompasses all of the factual predicates."  Id. at 95.  This is                                                        ___          such a case.                    The  appellant  does  not   challenge  the  materiality          component  of the  district court's  determination.   Rather,  he          concentrates  his fire  on  the  finding of  falsity.   He  cites          language  that  once  appeared  in  the  Sentencing  Commission's          commentary, USSG  3C1.1,  comment. (n.1) (Nov. 1995)  and earlier          editions, to  the  effect  that  in applying  section  3C1.1  "in          respect  to  alleged   false  testimony  or  statements   by  the          defendant, such testimony or statements should be  evaluated in a          light  most favorable  to  the defendant,"  and  claims that  the          sentencing court  erred by  failing to  consider his  testimonial          statements accordingly.                    The  most recent version of the guidelines deleted this                                          28          language,  see USSG  App. C, amend.  566 (Nov. 1997),  but it was                     ___          zoetic  at the  time of  the  appellant's sentencing,  and he  is          therefore  entitled  to  its  benefit.    See  United  States  v.                                                    ___  ______________          Harotunian, 920  F.2d 1040, 1041-42  (1st Cir. 1990).   But, this          __________          circumstance does not profit  McKeeve.  His suggested reading  of          the language would allow "the  safeguard [to] swallow the rule in          a  single  gulp," Akitoye,  923 F.2d  at  228, and  we  long have                            _______          rejected  it.   In its  heyday the  now-discarded language  never          required sentencing  courts to resolve all  evidentiary conflicts          to the defendant's benefit.  Thus, a sentencing court required to          apply that language today need only construe allegedly perjurious          statements  in a defendant-favorable  way if such  statements are          genuinely  ambiguous   or  if  the   record,  after   credibility          determinations have  been made,  plausibly  supports an  innocent          interpretation.  See   United States v.  Clark, 84 F.3d  506, 510                           ___   _____________     _____          (1st Cir.), cert. denied, 117 S. Ct. 272 (1996).                      _____ ______                     Here, the overwhelming weight of the credible evidence          contradicted the appellant's professions of  ignorance.  Numerous          witnesses testified to incriminating statements and  conduct that          occurred before the appellant claims he became aware  of possible          legal  problems.  This evidence  strongly supports a finding that          the  appellant knew all along that  his actions were illegal.  In          these  circumstances, the obsolete language is inapposite and the          district court's finding of perjury is unimpugnable.                    The supportability of this finding likewise defeats the          appellant's related claim that the two-level enhancement punished                                          29          him for exercising his constitutional right to testify in his own          defense.  That  right, though precious, does not  include a right          to commit perjury.  See Dunnigan, 507 U.S. at 96.                              ___ ________          VI.  CONCLUSION          VI.  CONCLUSION                    We  need  go  no  further.   To  the  extent  that  the          appellant  rolls out other arguments, they are plainly inadequate          and do  not warrant  discussion.   The short  of it  is that,  in          colloguing to  sell computer equipment  to Libya, McKeeve  spun a          tangled international  web that ultimately ensnared  its creator.          For that conduct, he was  lawfully indicted, fairly tried, justly          convicted, and appropriately sentenced.                    Affirmed.                    Affirmed.                    ________                                          30
