
USCA1 Opinion

	




          July 12, 1996     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 95-1584                                    UNITED STATES,                                      Appellee,                                          v.                                   GERARD DISANTO,                                Defendant - Appellant.                                     ____________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  June 14,  1996,  is          amended as follows:               Page  20, line 23, is  amended by inserting  "of the impact"          after "assessment" in the United States v. Rivera-G mez, 67  F.39                                    _____________    ____________          993, 998 (1st Cir. 1995), parenthetical.               Page 49, last  line, is amended by changing "Id.  at 872" to                                                            ___          "Morillo, 8 F.3d at 872".           _______                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1584                                    UNITED STATES,                                      Appellee,                                          v.                                   GERARD DISANTO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Paul J. Haley, with whom Law Office of Paul J. Haley, was on               _____________            ___________________________          brief for appellant.               John M. Griffin, Assistant United States Attorney, with whom               _______________          Donald K.  Stern,  United  States  Attorney,  was  on  brief  for          ________________          appellee.                                 ____________________                                    June 14, 1996                                 ____________________                    TORRUELLA,  Chief  Judge.    After  a  nine-day  trial,                    TORRUELLA,  Chief  Judge                                ____________          Appellant   Gerard  DiSanto   ("Appellant")  was   convicted  for          attempted arson in violation  of 18 U.S.C.   844(i),  the federal          arson statute, which makes it a federal crime to destroy by means          of fire  property  used in  or  affecting interstate  or  foreign          commerce; and for conspiracy  to commit arson in violation  of 18          U.S.C.    371.  Appellant appeals  his conviction as  well as his          sentence on a  number of grounds.  For the  following reasons, we          affirm  the  district  court's   judgment  and  sentence  in  all          respects.                          FACTUAL AND PROCEDURAL BACKGROUND                          FACTUAL AND PROCEDURAL BACKGROUND                          _________________________________                    Presenting the  facts in  the light most  hospitable to          the jury's verdict, see United States v. Staula, 80 F.3d 596, 599                              ___ _____________    ______          (1st Cir. 1996); United States  v. Ortiz, 966 F.2d 707, 711  (1st                           _____________     _____          Cir. 1992),  cert. denied,  506 U.S.  1063  (1993), the  evidence                       ____________          presented during the nine-day trial tended to show the following.                    The Galleria  II was a family-style  restaurant and pub          serving   Italian   food   and   pizza,   located  in   Westport,          Massachusetts  (the  "restaurant"),  which  was  owned  by  three          partners: Appellant,  Robert Ashness  ("Ashness")  and Dr.  Louis          Aguiar  ("Dr. Aguiar").  The restaurant was located in a building          which  Appellant and Ashness leased  from Dr. Aguiar and Fernando          L pes  ("L pes").   The  lease  agreement  provided, among  other          things,  for  a monthly  rent of  $3,600  and an  option  for the          restaurant  owners to purchase L pes' share in the property.  The          restaurant  received natural  gas  and food  supplies that  moved                                         -2-          through interstate commerce.  Although very successful during the          summer  months of 1991, its first year of operation, the Galleria          II's  business   proved  to  be  seasonal   and  business  slowed          considerably after the summer.  In addition to the slow business,          there  were significant  problems with  the building's  water and          septic  systems and  the relationship  between Appellant  and Dr.          Aguiar  deteriorated  over who  was  responsible to  pay  for the          required  improvements:  the restaurant, as tenant, or Dr. Aguiar          and L pes, as landlords.                     Among  the  Galleria  II's  employees,  Randy  Schaller          ("Schaller") served as  chef and as kitchen  manager; and Shelley          McKenna ("McKenna") served as the bar manager and hostess and was          also responsible for the cash and bookkeeping.  Both Schaller and          McKenna  had longstanding  business relationships  with Appellant          and  considered him  a friend.   Beginning in  the fall  of 1991,          Appellant began discussing with  Schaller the need for renovating          the restaurant.  In  addition to correcting the water  and septic          systems,  Appellant proposed  that  an outside  roof-top deck  be          installed for  the purpose of increasing liquor  sales during the          peak  summer season.  Appellant  told Schaller that  he wanted to          finance  the renovations  by  burning the  top of  the restaurant          above  the second floor as  the insurance proceeds  from the fire          would provide funds for  the renovations.   As part of his  plan,          Appellant increased the Galleria II's existing insurance coverage          (building,   contents,  and  premises  liability)  by  purchasing          $90,000   of  business   interruption  insurance,   which  became                                         -3-          effective December 3, 1991, two months before the arson attempts.          The proceeds  from the business interruption  coverage could have          been used for any purpose, including for the  repair of the water          and septic systems.                    On  or about  February  19, 1992,  after unsuccessfully          attempting   to  hire  someone  else  to  burn  the  top  of  the          restaurant, Appellant attempted to set a fire himself by igniting          a  stack of  papers in  the attic  of the  restaurant.   The fire          burned out,  however, before  it could  fully ignite  the exposed          wood frame.  Both Schaller and McKenna, who had been drawn to the          attic  because  of  the  open attic  door,  discovered  Appellant          standing  over the  burning stack  of papers  and refused  to get          involved.  During  the days following  his first failed  attempt,          Appellant  asked Schaller if he would help by pouring gasoline on          the  attic  rafters as  part of  a  plan whereby  Appellant would          return later to ignite the gasoline.   After repeatedly declining          to get involved, Schaller finally agreed to assist Appellant.                      Shortly  after  noon  on  February  23, 1992,  Schaller          poured  gasoline, as  Appellant had  requested, onto  the exposed          attic rafters and  insulation and informed Appellant  that he had          done so.   About mid-afternoon,  Appellant and Schaller  left the          restaurant.  At  approximately 4:00 p.m. that same afternoon, the          Westport  Fire  Department  responded  to a  complaint  from  the          restaurant  that there  was  a strong  odor  of gas,  which  both          patrons  and  employees at  the restaurant  had detected.   After          evacuating   the  building,   the  firefighters   discovered  the                                         -4-          gasoline-soaked  boards and  insulation  as well  as evidence  of          charring  on the attic floor and ceiling.   According to the fire          department, the charring was unrelated to the much larger area of          the  attic  that  was  saturated with  gasoline,  representing  a          separate, previous attempt to start a fire.                     A few  days later, Schaller admitted to the police that          he  had  poured  the  gasoline.    Although  Appellant  told  law          enforcement  officials  that he  would  fire  Schaller when  they          informed  him of  Schaller's  confession,  Appellant never  fired          Schaller, and Schaller worked at the restaurant until it  closed.          On December 6,  1993, Schaller entered  a plea  of guilty to  the          federal indictment charging him  with the second attempted arson.          Pursuant to his plea  agreement, he agreed to cooperate  with law          enforcement  officials.   As part  of that  cooperation, Schaller          engaged  in  four conversations  -- three  in  person and  one by          telephone -- with Appellant that were recorded by law enforcement          agents.1   In July 1994,  a two count indictment  was returned by          the federal grand jury charging Appellant with attempted arson of          a building affecting interstate commerce under 18 U.S.C.   844(i)          and conspiracy to commit arson under 18 U.S.C.    371.   Prior to          trial,  Appellant  filed  a  motion  in  limine  to exclude  from                                               __________          evidence the  four recorded  conversations between  Appellant and          Schaller,   which  included  incriminating   statements  made  by                                        ____________________          1  The conversations  occurred on February 24, March  1, March 4,          and May 25 of 1994.                                           -5-          Appellant.   After  a hearing,  the court  denied the  motion and          admitted the tapes after certain portions were excised.                     During a  nine-day trial on  the merits, in  which nine          witnesses  testified for  the  prosecution  (including  Schaller,          pursuant to  his plea  agreement), the prosecution  presented its          theory that Appellant attempted  to burn the restaurant in  order          to  recover  insurance  proceeds   to  finance  renovations   and          improvements  of  the  restaurant.    The  defense  called  three          witnesses, including McKenna.  Among other matters, the witnesses          testified that Schaller's reputation for truthfulness was "zero;"          that  the  business interruption  insurance  was  purchased as  a          result  of significant storms which had caused the Galleria II to          close; that, after  leaving with Schaller during the afternoon of          February 22,  Appellant  had no  intention  of returning  to  the          restaurant;  and   that  Appellant was  with  McKenna during  the          evening of February 22, planning their  next day's business trip.                    During the trial, Appellant moved for a mistrial, which          was denied, on the grounds that improper testimony regarding  his          ownership of a  "gay night club"  was prejudicial.   Both at  the          close of the government's  case-in-chief and at the close  of all          the evidence, Appellant  moved for judgment  of acquittal on  the          ground that the evidence was  insufficient to establish that  the          Galleria II  was a building  affecting interstate commerce.   The          district court denied both motions.                                           -6-                    Based  on the  foregoing and  other evidence,  the jury          convicted  Appellant on  February  10, 1995,  on  both counts  of          attempted  arson  and  conspiracy  to commit  arson.    Appellant          subsequently  moved  for a  new  trial which  the  district court          denied.   On May 25, 1995, the district court sentenced Appellant          to a term of  seventy-eight (78) months' imprisonment, imposed  a          fine of $12,500, restitution to the Westport Police Department in          the  amount of $386, and ordered supervised release for three (3)          years.  Appellant  appeals both his conviction  and his sentence.          We  have jurisdiction pursuant to  Rule 4(b) of  Federal Rules of          Appellate Procedure.                                       DISCUSSION                                      DISCUSSION                                      __________                  I.  Appellant's Motions for Judgment of Acquittal                  I.  Appellant's Motions for Judgment of Acquittal                    Appellant claims reversible error  in the denial of his          motions  for judgment  of acquittal.   See Fed.  R. Crim.  P. 29.                                                 ___          Below, Appellant  based his motions for  acquittal on sufficiency          of the evidence  grounds, which included the argument  that there          was  insufficient  evidence  to  prove  the  requisite  nexus  to          interstate  commerce  under  the  federal  arson  statute.2    On                                        ____________________          2  The federal arson statute provides:                      Whoever maliciously  damages or destroys,                      or  attempts  to  damage or  destroy,  by                      means  of  fire  or  an   explosive,  any                      building,  vehicle,  or  other   real  or                      personal property used  in interstate  or                      foreign  commerce  or  in   any  activity                      affecting interstate  or foreign commerce                      . . . [is guilty of a crime].          18 U.S.C.   844(i) (1994).                                          -7-          appeal, he  raises new  arguments  based on  the Supreme  Court's          decision in United States v. L pez, ___ U.S. ___, 115 S. Ct. 1624                      _____________    _____          (1995), which struck down the Gun Free School Zone Act, 18 U.S.C.             922(q), as  exceeding Congress'  authority under  the Commerce          Clause3 to  regulate interstate  commerce.  Appellant  now argues          that,  in   light  of  L pez,   the  federal  arson   statute  is                                 _____          unconstitutional and that, accordingly, the district court lacked          subject  matter  jurisdiction.   In  the  alternative,  Appellant          argues that under  L pez there is insufficient  evidence to prove                             _____          that the Galleria II was a building that "substantially affected"          interstate commerce.                    Specifically,  Appellant  now  claims  that  this  is a          simple state arson  case which  Congress has no  power under  the          Commerce Clause to federalize and thereby undercut Massachusetts'          power to prosecute Appellant  under its own arson statute,  Mass.          Gen. Laws  Ann. ch.  266,    1.   In  support  of this  argument,          Appellant insists that  L pez effectively  overruled the  Supreme                                  _____          Court's earlier  decision in Russell  v. United States,  471 U.S.                                       _______     _____________          858, 859  (1985), which concluded that the  federal arson statute          expresses Congressional  intent to exercise its  full power under          the  Commerce Clause.    Id. (holding  that  rental property  was                                   __          property used in an activity affecting interstate commerce within          the  meaning  of  the  federal  arson  statute).    Consequently,                                        ____________________          3    Under  the  Commerce  Clause, Congress  is  empowered  "[t]o          regulate  Commerce with  foreign Nations,  and among  the several          States, and  with the Indian Tribes."   U.S. Const. art.  I,   8,          cl. 3.                                         -8-          Appellant challenges the "continuing  viability" of United States                                                              _____________          v. Medeiros, 897 F.2d 13  (1st Cir. 1990), in which we  held that             ________          after  Russell  rental   property  is   per  se   "unquestionably                 _______                          _______          sufficiently   connected   to  interstate   commerce   to  confer          jurisdiction"  and  satisfy  the  jurisdictional  element  of the          federal arson statute.  Id. at 16-17.  Appellant,  thus, urges us                                  __          to  reexamine  our  holding  in  Medeiros   in  light  of  L pez'                                           ________                  _____          "substantially  affect"  nexus  requirement  between  the illegal          activity and interstate commerce,  and reverse his convictions on          the grounds that the  evidence does not prove that  the attempted          arson  of  the  Galleria  II  "substantially affects"  interstate          commerce.                     1.  The Constitutionality of Section 844(i)                     1.  The Constitutionality of Section 844(i)                                A.  Standard of Review                                A.  Standard of Review                    Although  Appellant  failed  to raise  his  L pez-based                                                                _____          challenge below,4 a claim  that a statute is  unconstitutional or          that  the court lacked jurisdiction  may be raised  for the first          time on  appeal.  United States  v. Seuss, 474 F.2d  385, 387 n.2                            _____________     _____          (1st Cir.), cert. denied., 412 U.S. 928 (1973); see also, Fed. R.                      _____________                       ________          Crim. P. 12(b)(2)  (lack of  jurisdiction may be  noticed by  the          court  at  any  time).     We  review  a  determination   of  the                                        ____________________          4   Appellant did not  make these L pez-based  arguments below as                                            _____          L pez had  not yet been decided.  We note that Appellant does not          _____          argue  that we must consider L pez even though rendered after his                                       _____          trial because it establishes a new rule for criminal prosecutions          and must be applied retroactively.  See Griffith v. Kentucky, 479                                              ___ ________    ________          U.S.  314 (1987); United  States v. Melvin, 27  F.3d 703, 707 n.4                            ______________    ______          (1st Cir.  1994).   We  need not  address this  issue, or  decide          whether this  case falls within Griffith,  because, regardless of                                          ________          waiver, Appellant does not prevail on the merits.                                         -9-          constitutionality  of  a federal  statute  de novo.    See United                                                     _______     ___ ______          States  v.  D az-Mart nez,  71  F.3d 946,  953  (1st  Cir.  1995)          ______      _____________          (applying,  without  explicitly stating  so,  de  novo review  to                                                        ________          L pez-based  constitutional challenge not raised during pre-L pez          _____                                                       _____          proceedings);  United States  v. Sherlin,  67 F.3d  1208, 1213-14                         _____________     _______          (6th  Cir.   1995)  (applying  de  novo   review  to  L pez-based                                         ________               _____          constitutional  challenge to  the federal  arson  statute), cert.                                                                      _____          denied, 116 S. Ct. 795 (1996); United States v. Aguilar-Aranceta,          ______                         _____________    ________________          957 F.2d  18, 21 (1st Cir. 1992)  (reviewing de novo questions of                                                       _______          constitutional  law).  But see  United States v.  Spires, 79 F.3d                                 _______  _____________     ______          464, 465 (5th Cir.  1996) (reviewing only for plain  error L pez-                                                                     _____          based constitutional challenge not raised below during  pre-L pez                                                                      _____          proceedings);  United States v. Dupaquier,  74 F.3d 615, 619 (5th                         _____________    _________          Cir.  1996) (same); Daigle v. Maine Medical Center, Inc., 14 F.3d                              ______    __________________________          684,  687-88 (1st  Cir. 1994)  ("The raise-or-waive  rule applies          with full  force to constitutional challenges.").   Regardless of          what standard  of review we  apply, the result is  the same since          even  under  the  more  favorable de  novo  standard,  we  reject                                            ________          Appellant's constitutional and jurisdictional challenges, finding          that L pez in no way provides grounds for reversal in this case.               _____                                    B.  Discussion                                    B.  Discussion                    As  with  the  federal  arson statute  at  issue  here,          Congress  has  often invoked  its  authority  under the  Commerce          Clause  to federalize  criminal  activity.   Appellant points  to                                         -10-          L pez and its invalidation  of the Gun  Free School Zone Act5  as          _____          evidence  that  the  Supreme   Court's  present  position  is  to          restrictively  interpret the Commerce Clause when it is used as a          foundation for a criminal statute.  See L pez, 115 S. Ct. at 1631                                              ___ _____          n.3  ("Under  our federal  system,  the  'States possess  primary          authority for defining and  enforcing the federal law.'" (quoting          Brecht  v. Abrahamson,  507 U.S.  619, 635  (1993))).   The L pez          ______     __________                                       _____          Court recognized three categories  of activity which Congress may          regulate  under the Commerce Clause: (i) "the use of the channels          of   interstate   commerce";  (ii)   "the   instrumentalities  of          interstate commerce, or persons or things in interstate commerce,          even though the threat may come only from intrastate activities";          and  (iii) "those activities that substantially affect interstate          commerce."  L pez, 115 S. Ct. at 1629-30.                        _____                    After L pez,  the Court  explained in United  States v.                          _____                           ______________          Robertson, ___ U.S.  ___, 115  S. Ct. 1732  (1995) (per  curiam),          _________          that   these   three  bases   of   congressional   authority  are          analytically  distinct,  reaffirming   the  distinction   between          activities engaged  in interstate commerce  and purely intrastate          activities  having a  substantial effect on  interstate commerce.          See Robertson, ___ U.S. at  ___, 115 S. Ct.  at 1733.  The  Court          ___ _________          stated  that the "'affecting commerce'  test was developed in our          jurisprudence to define the extent of Congress' power over purely          intrastate   commercial   activities   that    nonetheless   have          _____                                        ____________________          5   This Act  made it  a federal offense  to knowingly  possess a          firearm  at a place that  the individual knows  or has reasonable          cause to believe is a school zone.                                           -11-          substantial interstate effects."  Id. at ___, 115 S. Ct. at  1733                      _____                 ___          (emphasis  in original)  (concluding that  transporting equipment          and workers from out of  state fell within 18 U.S.C.    1962(a)'s          alternative criterion without regard to the  "affecting commerce"          test).                     We consider  the federal arson statute  and the Court's          pre-L pez  holding  in  Russell   in  light  of  this  framework,              _____               _______          concluding that  L pez does  not invalidate 18  U.S.C.    844(i).                           _____          First, by its plain language,  Section 844(i) clearly falls under          both  the second and third  L pez categories in  that it protects                                      _____          property that is  either "used in interstate  or foreign commerce                                         __          or in any activity affecting interstate or foreign commerce."  18             _______________          U.S.C.   844(i) (emphasis added).                      Second,   the  federal   arson  statute   contains  the          requisite   "jurisdictional   element"   and  thus   is   readily          distinguishable from the provision  invalidated in L pez.   As we                                                             _____          recently  noted  in D az-Mart nez,  the  Supreme  Court in  L pez                              _____________                           _____          "found significant that  the statute  in that case,  18 U.S.C.             922(q) [the federal firearms possession statute], 'contain[ed] no          jurisdictional  element which would  ensure, through case-by-case          inquiry,  that  the  firearm   possession  in  question   affects          interstate commerce.'"   D az-Mart nez,  71 F.3d at  953 (quoting                                   _____________          L pez, 115  S. Ct. at  1631).   We held that,  unlike L pez,  the          _____                                                 _____          jurisdictional element  was present in 18 U.S.C.   922(k) because          it  contains  a specific  requirement that  the firearm  with the          obliterated serial  number have  been "shipped or  transported in                                         -12-          interstate  or  foreign commerce."    18  U.S.C.   922(k);  D az-                                                                      _____          Mart nez, 71 F.3d at  953 (holding that "[w]hatever the  reach of          ________          L pez, it does not invalidate  18 U.S.C.   922(k)").  Here,  too,          _____          the  federal arson statute  contains the requisite jurisdictional          element which similarly ensures that, case-by-case, the  property          damaged by  the arson must  have been "used  in interstate .  . .          commerce or in an activity affecting  interstate . . . commerce."          18 U.S.C.   844(i).                      Third, while  the federal  arson statute is  similar to          that struck down in L pez in that it does not regulate commercial                              _____          or economic activity, see United States v. Pappadopoulos, 64 F.3d                                ___ _____________    _____________          522,  526-27  (9th Cir.  1995), it  does  regulate the  damage or          destruction of  business property  that  satisfies the  requisite          interstate nexus, see Russell, 471  U.S. at 860-62 ("Congress  at                            ___ _______          least intended to protect  all business property"); United States                                                              _____________          v. Flaherty, 76  F.3d 967, 974 (8th Cir. 1996).   Particularly in             ________          the absence of any mention of Russell in the  majority opinion of                                        _______          L pez, we can find  no reason to conclude that  L pez invalidates          _____                                           _____          Russell's analysis  of Section 844(i)'s  purpose and  legislative          _______          history  or  its  conclusion   that  the  federal  arson  statute          constitutionally  regulates  arson   of  business  property  that          satisfies  the requisite  jurisdictional element.   Russell,  471                                                              _______          U.S. at 860-62.   After all, whatever L pez' reach,  it certainly                                                _____          did not  purport to overrule  cases upholding application  of the          Commerce Clause power to wholly intrastate  activities satisfying                                         -13-          the requisite nexus to interstate commerce.  See United States v.                                                       ___ _____________          Genao, 79 F.3d 1333, 1336 (2d Cir. 1996).          _____                    Furthermore,  we  reject   Appellant's  argument   that          Section 844(i) is unconstitutional because it improperly intrudes          into Massachusetts' primary authority for defining and  enforcing          the criminal law.   By virtue of the fact  that the federal arson          statute  is  a  criminal  law  it indeed  intrudes  upon  states'          traditional dominion over the criminal law.  L pez, 115 S. Ct. at                                                       _____          1631 n.3 ("Under our federal  system, the 'States possess primary          authority for defining and enforcing the criminal law.'" (quoting          Abrahamson, 507 U.S. at 635)).  However, "not every federal foray          __________          into criminal law is invalid."  United States v. Bishop, 66  F.3d                                          _____________    ______          569,  584 (3d Cir. 1995)  (rejecting L pez-based challenge to the                                               _____          constitutionality of  the federal  carjacking statute, 18  U.S.C.            2119).   Where, as  here, the  criminal  statute satisfies  the          constitutional limits  of the Commerce Clause,  it withstands the          challenge that it  interferes with the states' ability  to define          and enforce the criminal law.   See Russell, 471 U.S.  at 860-62.                                          ___ _______          Finally, we note that we join  our fellow circuits in arriving at          the  conclusion that  18  U.S.C.    844(i) passes  constitutional          muster under L pez.   See, e.g., Flaherty, 76 F.3d at 974; United                       _____    ___  ____  ________                  ______          States v. Denalli, 73 F.3d 328, 329 (11th Cir. 1996); Sherlin, 67          ______    _______                                     _______          F.3d at 1213-14; Pappadopoulos, 64 F.3d at 526.                            _____________                    Because  we  find no  basis  to  question the  presumed          validity of 18  U.S.C.    844(i), we conclude  that the  district          court  properly  had  subject-matter  jurisdiction  conferred  by                                         -14-          virtue  of the fact that  Appellant was charged  with an "offense          against the United States."  18 U.S.C.   3231.  See United States                                                          ___ _____________          v.  Ryan, 41 F.3d  361, 363-64 (8th  Cir. 1994)  (noting that "if              ____          [the  jurisdictional] element is  not satisfied, then [defendant]          is  not guilty; but the  court is not by  the failure of proof on          that element deprived of judicial jurisdiction.").                           2.  Sufficiency of the Evidence                           2.  Sufficiency of the Evidence                    With  respect  to  Appellant's  claim  that  there  was          insufficient  evidence  to  sustain  his  convictions,  Appellant          "faces an uphill climb," United States v. Valle, 72 F.3d 210, 216                                   _____________    _____          (1st Cir. 1995).  "If the evidence  presented, taken in the light          most  agreeable  to  the  government,  is  adequate  to permit  a          rational  jury to find each  essential element of  the offense of          conviction beyond  a reasonable  doubt, then [Appellant's]  claim          fails."    Id.  (citations omitted).    As  the  district court's                     ___          disposition of a motion  for judgment of acquittal is  subject to          de novo review, we,  "like the trial court, must  'scrutinize the          _______          evidence in the  light most compatible with  the verdict, resolve          all credibility disputes in the verdict's favor, and then reach a          judgment  whether  a rational  jury  could  find guilt  beyond  a          reasonable doubt.'" Id. (quoting United States v. Taylor, 54 F.3d                              ___          _____________    ______          967, 974 (1st Cir. 1995)).                      After thoroughly  reviewing  the record6  and  applying          these  straightforward rules,  we are  convinced that  a rational                                        ____________________          6   We included in our  review of the record  the challenged tape          recordings because, as we  explain below, we find that  they were          properly admitted into evidence.                                          -15-          jury  could  have  found  beyond  a  reasonable  doubt  that  the          government  had  successfully  proved  each of  the  elements  --          including,  as we  discuss more  thoroughly below,  the requisite          nexus  to interstate commerce --  of both Appellant's attempt and          conspiracy convictions.  Credibility determinations  are uniquely          within the jury's province; and, we defer to their determinations          and the verdict if  the evidence can support  varying inferences.          See, e.g., United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir.          ___  ____  _____________    ___________          1996); United States  v. Gonz lez-Torres, 980 F.2d  788, 790 (1st                 _____________     _______________          Cir. 1992).  Here, the record clearly supports the verdict.  That          the  jury  chose  to  believe  the  testimony  presented  by  the          government, particularly  that of Schaller,  and disbelieve  that          presented by the defense was well within its province.                      As part of our sufficiency  of the evidence review,  we          must determine  whether the  requisite jurisdictional  element is          met.  Because  it constitutes a  jurisdictional predicate of  the          substantive  offense, this  "jurisdictional element,"  like other          elements of  the offense,  must be  proved to the  jury beyond  a          reasonable doubt.   See Pappadopoulos, 64 F.3d  at 524; Medeiros,                              ___ _____________                   ________          897 F.2d  at 15-17 (stating that the  government need only show a          de minimis connection to interstate commerce in order  to satisfy          __________          this element).  Thus,  in order for Appellant to be  found guilty          under  the federal arson  statute, the  government had  to prove,          among other things,  that the  property was either  "used in"  or          "used in an activity affecting" interstate commerce.  18 U.S.C.            844(i).  This  involves identifying for what activity  or purpose                                         -16-          the building is  "used."  Cf. Medeiros, 897  F.2d at 16 (focusing                                    __  ________          on the character of a  fictitious building in determining whether          it was sufficiently connected to interstate commerce).                     On appeal, Appellant argues that there  is insufficient          evidence to  prove that the Galleria II was a building used in or          affecting interstate commerce,  because under L pez  the evidence                                                        _____          does  not  prove  that   the  building  "substantially   affects"          interstate  commerce.  Because Appellant did not raise this L pez                                                                      _____          argument  below, we  review  only for  plain  error the  district          court's ruling  on the sufficiency of the  evidence regarding the          jurisdictional element.   United States  v. Olano, 507  U.S. 725,                                    _____________     _____          732 (1993) ("There must  be an 'error'  that is 'plain' and  that          'affect[s] substantial  rights.'"); United  States  v. Brand,  80                                              ______________     _____          F.3d 560, 567-68 (1st Cir. 1996) (discussing Olano).                                                       _____                    We  find no plain error.   At the  time of the district          court's decision, L pez had not yet been decided and there was no                            _____          reason  for  the district  court  to  question  the viability  of          Russell or  Medeiros.  Under  Medeiros, the government  need only          _______     ________          ________          show, and  the jury need  only find,  a de minimis  connection to                                                  __________          interstate commerce  in order  to sustain  a conviction  under 18          U.S.C.     844(i).   Medeiros,  897  F.2d at  16-17.   Here,  the                               ________          government presented uncontested evidence  that the object of the          attempted  arsons was  a "building"  that was  being "used"  as a          commercial establishment,  the Galleria II restaurant.   The jury          was  presented  with evidence  that  Appellant  and his  partners          rented  the building; that the building was supplied with natural                                         -17-          gas  which   traveled  in  interstate  commerce;   and  that  the          restaurant  received  food  supplies   for  its  operation  which          traveled in  interstate commerce.  Indeed,  Appellant conceded at          oral  argument  that  the  building  was  used  as  a  commercial          establishment which  received food  supplies and natural  gas for          its  operation  that  travelled  in  interstate  commerce.    The          district court correctly instructed  the jury that the government          had to prove  beyond a reasonable doubt that the  Galleria II was          property  "used  in  or  [sic]  affected  interstate  or  foreign          commerce."7   Viewing the evidence in the light most favorable to          the jury verdict, this evidence  more than satisfies Medeiros' de                                                               ________  __          minimis   requirement,  and   we  therefore   reject  Appellant's          _______          insufficiency of  the evidence  argument.8   See, e.g., Ryan,  41                                                       ___  ____  ____                                        ____________________          7  The  court further instructed  the jury: "Interstate  commerce          means commerce or  business between  any place in  one state  and          another place outside that state.  It also means commerce between          places  within  the same  state,  but passing  through  any place          outside that state."  Finally, the court stated:  "Now, business-          related  property,  as   opposed  to  residential  property,   is          considered used  in or  affecting interstate or  foreign commerce          even if  it has only a  de minimis affect [sic]  on interstate or                                  __________          foreign  commerce.   For  example,  business-related property  is          considered used in or affecting interstate or foreign commerce if          food or drink which  has moved in interstate or  foreign commerce          is sold there, or if oil or gas which has moved in  interstate or          foreign commerce is  used in  the building."   Appellant did  not          object to this instruction below or specifically challenge  it on          appeal.          8  We need not address Appellant's contention that our holding in          Medeiros  that  the  government  need  only  show  a  de  minimis          ________                                              ___________          connection to interstate  commerce is invalidated  by L pez.   We                                                                _____          merely note that  while the  L pez decision did  not address  the                                       _____          amount of  evidence required to prove  an explicit jurisdictional          element  of an offense,  see Flaherty, 76 F.3d  at 974, this does                                   ___ ________          not necessarily mean that it is not controlling  when determining          how  significant the connection to interstate commerce must be in          order to satisfy the jurisdictional element, see Denalli, 73 F.3d                                                       ___ _______                                         -18-          F.3d at 364 (the  de minimis standard  "is easily met, even  when                            __________          the property is  temporarily closed or vacant");  U.S. v. Menzer,                                                            ____    ______          29  F.3d  1223,  1229  (7th Cir.)  (finding  interstate  commerce          connection where  building  used partly  as  commercial  business          received natural gas and items purchased for resale that moved in          interstate  commerce),  cert.  denied,  115 S.  Ct.  515  (1994);                                  _____________          Medeiros, 897  F.2d at 16 (holding that rental property is per se          ________                                                   ______          property used in an activity affecting interstate commerce).                     We only  add this:   Even assuming L pez  requires more                                                       _____          than a de  minimis showing, we nonetheless find that the jury was                 ___________          presented with  sufficient evidence  to support its  finding that          the Galleria  II was a building  either "used in" or  "used in an          activity  affecting" interstate  commerce.   Above,  we found  no          reason  to  think  that  L pez  in  any  way  undercut  Russell's                                   _____                          _______          conclusion that Congress has  the authority to regulate arson  of          business  property.9   Similarly,  we find  no basis  to conclude          that  L pez in any  way undercuts Russell's  holding that "rental                _____                       _______          property is unquestionably" an "activity" that affects interstate          commerce within the meaning of 18  U.S.C.   844(i).  Russell, 471                                                               _______          U.S.  at 862  ("We need not  rely on  the connection  between the                                        ____________________          at   330-31  (finding   arson  of   private  residence   did  not          substantially affect interstate commerce); Pappadopoulos, 64 F.3d                                                     _____________          at 527 (same).          9   See  generally,  Thomas  J.  Egan, Note,  The  Jurisdictional              ___  _________          Element of 18 U.S.C.  844(i), A Federal Criminal Commerce  Clause          Statute, 48 Wash. U.J. Urb. & Contemp. L. 183, 208 (1995) (noting          that  "the controversy of   844(i) jurisdiction boils down to one          issue  -- in addition to business property, what types of private                    ________________________________          property trigger federal jurisdiction in arson cases?") (emphasis          added).                                         -19-          market  for residential  units  and the  'interstate movement  of          people,'  to recognize that the local rental of an apartment unit          is  merely  an element  of a  much  broader commercial  market in          rental  properties." (quoting McLain v.  Real Estate Board of New                                        ______     ________________________          Orleans, 444 U.S. 232, 245 (1980))); cf. Sherlin, 67 F.3d at 1213          _______                              __  _______          (finding that  building used  in educational business  of college          was building used in  an activity affecting interstate commerce).          We, thus, reaffirm  our holding in Medeiros that  rental property                                             ________          is per se sufficiently connected to interstate commerce to confer             ______          federal  jurisdiction under  Section  844(i) and  to satisfy  the          jurisdictional element.  See  Medeiros, 897 F.2d at 16.   Because                                   ___  ________          uncontested  evidence was  presented  that, at  the  time of  the          attempted fires, Appellant and his partner rented the building in          which the Galleria II  was operated, the jury was  presented with          sufficient evidence to  find that  the building was  "used in  an          activity affecting" interstate commerce  within the meaning of 18          U.S.C.   844(i)'s second category.                      Even assuming further that L pez undermines Russell and                                               _____            _______          Medeiros' holding regarding rental property, we would nonetheless          ________          affirm  the jury's  finding.   Because  uncontested evidence  was          presented below  that  the  building  was used  as  a  commercial          establishment which  received food  supplies and natural  gas for          its operation that travelled in interstate commerce, the Galleria          II  also  falls within  18 U.S.C.     844(i)'s "real  or personal          property  used  in  interstate .  .  .  commerce."   Because  the          Galleria II was property used in interstate commerce, we need not                                   _______                                         -20-          address   whether   its  activities   "substantially  affect[ed]"          interstate commerce.  Cf.  Robertson, ___ U.S. at ___, 115 S. Ct.                                ___  _________          at 1733.                    In  sum, because we are  convinced that a rational jury          could  have found beyond  a reasonable doubt  that the government          had  successfully proved  each  of the  elements,  we affirm  the          district court's denial of Appellant's motions for acquittal.                         II.  Appellant's Motion for Mistrial                         II.  Appellant's Motion for Mistrial                    Appellant also appeals  the denial of his  motion for a          mistrial on the grounds  that improper testimony was prejudicial.          We review the district court's  decision for abuse of discretion.          United States v. Rivera-G mez,  67 F.3d 993, 998 (1st  Cir. 1995)          _____________    ____________          ("The  trial  judge  is  best  situated  to  make  a  battlefield          assessment of  the  impact that  a particular  piece of  improper          information may have on a jury."); United States v. Sep lveda, 15                                             _____________    _________          F.3d  1161, 1184 (1st Cir.  1993) ("Granting or  denying a motion          for   mistrial  is  a  matter  committed  to  the  trial  court's          discretion."),  cert.  denied, ___  U.S.  ___,  114 S.  Ct.  2714                          _____________          (1994).                      Appellant argues  that the  district  court abused  its          discretion when it denied his motion for a mistrial which he made          after Schaller testified that Appellant owned "a gay night club."          The trial transcript shows that  Schaller testified on direct  as          follows:                    Q:   Now,  in the beginning of the restaurant                         when it first opened,  how often did you                         speak  with  the  defendant   about  the                         Galleria II Restaurant?                                         -21-                    A:   On a daily basis.                    Q:   When you say "daily  basis," was that on                         the phone or in person?                    A:   Usually in person.                    Q:   Where was that?                    A:   At the club that  he owns in Providence,                         Gerardo's.                    Q:   What type of club is that?                    A:   A gay night club.          (Transcript, Vol. 4 at 98-99).  At this point, Appellant objected          to  the comment and moved for a  mistrial on the grounds that the          "comment  was completely gratuitous .  . . [a]nd  it was designed          specifically to, solely to[,]  inflame the passions and prejudice          of this jury."  (Transcript, Vol. 4 at 99).                      Although the court seemed  to agree with the government          that  the   information  was  offered  as   "strictly  background          information,"  the  court  was nonetheless  concerned  about  the          possibility  that some jurors "may  have a view  that someone who          runs a gay bar may  not be an upstanding citizen."   (Transcript,          Vol. 4  at 99-100).  The  court decided to speak  with the jurors          individually to ascertain  (i) whether the juror  was affected by          the testimony in  any way;  (ii) whether the  juror would  remain          impartial; and (iii) whether the juror would  be able to render a          verdict based on the  evidence and the  law as instructed by  the          court, without regard to  the fact that Appellant operated  a gay          night club.  After every juror responded that he or she would not          be affected by  the testimony  in rendering his  or her  verdict,                                         -22-          (Transcript, Vol. 4 at 101-12), the court concluded, "All  right.          I'm satisfied."  (Transcript, Vol. 4 at 113).  At this point, and          without further  comment by counsel,  testimony resumed.   At the          end of trial,  Appellant did not request any additional questions          be asked of  the jurors  or that any  additional instructions  be          given.                     Based on  the record,  and under the  guiding principle          that a  district court  may declare  a mistrial  only as  a "last          resort,"  Sep lveda, 15 F.3d at  1184, we find  that the district                    _________          court's  decision  "was  well  within  the  broad  range  of  its          discretion." Rivera-G mez,  67 F.3d at  999.  The  district court                       ____________          properly weighed the claim of impropriety and determined  that it          was  unfounded based  on his  voir dire  of the  jurors.   United                                                                     ______          States  v. Hahn, 17  F.3d 502, 508  (1st Cir.  1994) ("A mistrial          ______     ____          need  not be  allowed  absent a  clear  showing of  prejudice.").          Moreover, the district court acted swiftly  by polling the jurors          immediately after  the improper testimony.10   Sep lveda, 15 F.3d                                                         _________          at 1185 ("Swiftness in judicial  response is an important element          in  alleviating prejudice  once  the  jury  has been  exposed  to          improper testimony.").   The government argues  that this polling          effectively provided a curative  instruction that the jurors were          not to consider evidence that Appellant operated a gay night club                                        ____________________          10  In deciding  when to "instruct the  jurors," the court  noted          that "[t]he question is should  we go on now, or should  I [speak          to the jurors] at this point?"  Appellant responded that "I think          I should  know the answer.   It makes  sense to us,  doesn't it?"          The court agreed and  spoke individually with each of  the jurors          at that time. (Transcript, 4-101).                                           -23-          in determining guilt or innocence.  Given the questions asked and          the  responses  received,  we   agree  that  the  district  court          "efficaciously  dispelled" any  prejudicial effect  of Schaller's          statement by  its immediate  and thorough  response.  See  United                                                                ___  ______          States  v.  Bello-P rez,  977  F.2d  664,  672  (1st  Cir.  1992)          ______      ___________          (affirming denial of motion for mistrial where "[a]ny prejudicial          effect  of the  remark was  efficaciously dispelled").   Finally,          given  the overwhelming  evidence of  guilt presented  during the          trial, the challenged testimony  was innocuous.  Bello-P rez, 977                                                           ___________          F.2d  at  672  (denying  mistrial  where  evidence  of  guilt was          overwhelming).             III.  Appellant's Motion for a New Trial and Motion in Limine            III.  Appellant's Motion for a New Trial and Motion in Limine                                                                _________                    Third, Appellant appeals the denial of his motion for a          new trial, arguing that the district court  abused its discretion          in denying his motion  in limine11 to exclude from  evidence four                                 _________          tapes of  recorded conversations between himself  and Schaller in          February, March and May 1994.   As the motion for a  new trial is          not properly before  us on appeal,12 we  only address Appellant's                                        ____________________          11   When  the  tapes  were  admitted  into  evidence,  Appellant          reiterated  his objections  to  the admissibility  of the  tapes,          which he  first  had  raised  in  his  motion  in  limine.    See                                                         __________     ___          Transcript,  Vol. 5  at 48.    Thus, we  find  the present  claim          properly preserved for appeal.           12   On  February  24, 1995,  -- fourteen  days after  the guilty          verdict was rendered -- Appellant filed a motion for a new  trial          and to extend time  to file supporting memorandum.   The district          court  denied  both motions  on the  grounds  that they  were not          timely  filed pursuant to Fed.  R. Crim. P.  33 (providing, inter                                                                      _____          alia, seven-day filing  period from the  guilty verdict, or  such          ____          time  as the court may  fix during the  seven-day period, "unless          based  on the ground of newly discovered evidence" in which event          it may be filed within two  years after final judgment) and  Fed.                                         -24-          motion  in limine.13   Appellant  argued below,  as he  does now,                  _________          that the tapes should  have been excluded in their  entirety from          evidence  because  (i) their  probative  value  was substantially          outweighed  by their prejudicial effect  under Fed. R. Evid. 403,          even  after  certain  portions  were  redacted;  (ii)  they  were          improperly  admitted as  evidence  of "other  crimes, wrongs,  or          acts" under Fed. R. Evid. 404(b); and (iii) portions of them were          partially or  wholly unintelligible  which thereby  rendered them          more misleading than helpful.14                      Here, the  court listened  to the four  tapes, reviewed          their respective  transcripts, and heard arguments  of counsel on          the  admissibility of  both the  tapes and  the transcripts.   In                                        ____________________          R.  Crim. P. 45(b)  (providing that the court  may not extend the          time  for any  action under, inter  alia, Fed.  R. Crim.  P. 33).                                       ___________          Because  Appellant's  motion  was  not timely  filed  below,  and          because his arguments on appeal  do not involve "newly discovered          evidence,"  we do  not  address this  motion.   As  we have  held          before,  Fed. R. Crim. P.  33 is jurisdictional  and the district          court is  without discretion to  grant a motion  for a  new trial          that is not timely filed.  See, e.g., United States v. Rogers, 41                                     ___  ____  _____________    ______          F.3d 25,  34 (1st Cir.  1994);  United  States v. Lema,  909 F.2d                                          ______________    ____          561, 565 (1st Cir. 1990).           13  We  note that  distinguishing these two  motions is  somewhat          meaningless -- as  a practical  matter -- within  the context  of          this  case,  given  that  the same  abuse-of-discretion  standard          applies  to  both  motions  and that  Appellant's  sole  argument          regarding the motion for a new trial is that the court abused its          discretion in denying the motion in limine.                                            _________          14  In  his motion in limine, Appellant  also sought exclusion on                             _________          the  grounds that  portions contained inadmissible  hearsay under          Fed. R.  Evid. 802.   Appellant  does not  make this argument  on          appeal.   We assume  the reason for  this is that,  as the record          shows,  those portions  to  which Appellant  objected on  hearsay          grounds  were excised  from  the recordings  by agreement  of the          parties  and the court.   In any  event, as this  argument is not          properly raised on appeal, we do not address it.                                         -25-          denying Appellant's  motion in  limine  to exclude  the tapes  in                                      __________          their entirety under Fed.  R. Evid. 403 and 404(b),  the district          court  found that they were admissible as probative of the issues          raised in the  case and  that they were  "overall more  relevant"          than prejudicial.  (Transcript,  Vol. 2 at 12-13).   The district          court, however,  did allow Appellant to  make specific objections          of  undue prejudice.    (Transcript, Vol.  2  at 13-15).    After          hearing  argument from counsel, (Transcript, Vol. 4 at 4-47), the          district  court   agreed  with   most  of   Appellant's  specific          objections  and  excluded  those   portions.    With  respect  to          Appellant's  audibility argument, the  district court  only found          the  March 1, 1994, tape troubling  in that it "seems  . . . just          woefully inadequate  for any  reasonable  person to  understand."          (Transcript, Vol. 2-17).  The  district court's concern was  that          the  only way to understand  the tape was  to read the transcript          which  resulted in the transcript -- and the Government's view --          being  given too much weight.  After considering alternatives and          hearing  arguments from  counsel, the  district court  decided to          admit  the tape and allow the transcript because both parties had          stipulated  to the accuracy of the transcript as a true rendition          of  the recording.   (Transcript,  Vol.  2 at  4; Vol.  4 at  4).          Finally, the  district court gave cautionary  instructions to the          jury that the tapes  were evidence but that the  transcripts were          not.   The district court  also ruled that  the transcripts would                                         -26-          not  be permitted  during deliberations.15   (Transcript,  Vol. 4          at 4-5).                     We  turn   to  Appellant's  arguments,   reviewing  the          district court's decision to admit or exclude evidence under Fed.          R. Evid.  403 and  404(b) for  abuse of  discretion.   See, e.g.,                                                                 ___  ____          United States v. Frankhauser,  80 F.3d 641, 648 (1st  Cir. 1996);          _____________    ___________          United States v.  Cruz-Kuilan, 75  F.3d 59, 61  (1st Cir.  1996).          _____________     ___________          The  same  standard  of  review applies  regarding  the  district          court's decision  to admit the tapes  over Appellant's audibility          argument.  See  United States  v. Jadusingh, 12  F.3d 1162,  1167                     ___  _____________     _________          (1st Cir. 1994) ("As we have held  on numerous occasions, a trial          judge's ruling on the admission of recordings is  afforded 'broad          discretion,' even  where portions  of the taped  conversation are          unintelligible.").                                A.  The Tapes' Relevancy                               A.  The Tapes' Relevancy                    Evidence is excludable under Fed. R.  Evid. 403 "if its          probative  value is  substantially  outweighed by  the danger  of          unfair  prejudice."16    After  reviewing  the  transcript,17  we                                        ____________________          15   We note that Appellant does  not challenge on appeal the use          of the transcripts.           16  Fed. R. Evid. 403 provides in pertinent part:                      Although   relevant,   evidence  may   be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion  of   the                      issues,  or  misleading the  jury,  or by                      considerations of undue  delay, waste  of                      time,   or   needless   presentation   of                      cumulative evidence.                                         -27-          find no abuse of  discretion in the district court's  decision to          not  exclude the  tapes in  their entirety.   In  support  of his          argument,  Appellant  claims   that  (i)   none  of   Appellant's          statements prove  any  element  of the  alleged  crimes  or  show          consciousness  of guilt;  (ii)  the recorded  conversations  took          place two years after the predicate offenses occurred; (iii) many          of  Appellant's  arguments were  made  in  response to  questions          instigated  by the  government  witness; and,  (iv) any  relevant          conversations  were   intertwined  with  others  that   were  not          relevant.  We find none of these arguments persuasive.                    As the district court  found, the tapes included highly          probative evidence regarding  Appellant's consciousness of guilt,          including admissions.   The tapes were  directly relevant to  the          government's theory regarding both Appellant's involvement in the          attempted  arson and  the  conspiracy.    Indeed,  we  note  that          Appellant's counsel conceded  as much during  the hearing on  the          tapes' admissibility:  "I concede,  Judge, that there  were parts          that, given the Government's position and its interpretation, are          relevant." (Transcript, Vol. 2 at 12).                     For  example, the  February 24,  1994, tape  includes a          conversation regarding the payment of Schaller's legal fees.  Not          only  did  it  corroborate Schaller's  testimony  that  Appellant          assisted  in   the  payment   of  Schaller's  legal   fees,  this                                        ____________________          17    Because  the parties  stipulated  to  the  accuracy of  the          transcripts  as true recordings  of the tapes, we  do not need to          actually listen  to the tapes.   In any event, we  note that they          were not made part  of the district court record  nor included as          part of the record on appeal.                                         -28-          conversation included evidence from which the jury could draw  an          inference "that this money is  being paid because these gentlemen          were  in on the deal together."  (Transcript,  Vol. 4 at 9).  The          March  1, 1994, tape includes  an admission by  Appellant that he          threw matches to  light the fire during the first  attempt:  "You          weren't there  when I  threw the  [expletive]  matches the  first          time."  The March 4, 1994, tape includes an adoptive admission by          Appellant  regarding his attempts to burn the restaurant during a          conversation about whether Appellant  had told anyone about those          efforts.   While Appellant denies telling anybody  else about his          efforts, he  responds  to Schaller's  questions directly  without          ever disputing the veracity of what Schaller's questions imply --          that  Appellant  "tried to  burn it."    The May  25,  1994, tape          provides  evidence  of  the   conspiracy  between  Schaller   and          Appellant.   The  conversation demonstrates  that, although  they          were confused as to  their recollection of what they  believed to          be their respective roles, they clearly had conspired to burn the          restaurant.   This  sampling of  each of  the four  tapes clearly          shows  that,  contrary  to  Appellant's  claims,  the  recordings          include statements  by Appellant  that are directly  probative of          both attempts and the conspiracy.                    Appellant  also points  to the  fact that  the recorded          conversations  occurred two  years  after  the alleged  offenses,          arguing that the recordings  are neither closely intertwined with          the charged  offenses  nor helpful  in  establishing  Appellant's          intent  to commit the crimes  charged.  Appellant  cites to three                                         -29-          cases  addressing the  admissibility  of evidence  under Fed.  R.          Evid. 404(b).   See United States v. Huff, 959 F.2d 731, 736 (8th                          ___ _____________    ____          Cir. 1992); United  States v.  Brookins, 919 F.2d  281, 286  (5th                      ______________     ________          Cir. 1990); United States v. Hodges, 770 F.2d 1475, 1480 n.4 (9th                      _____________    ______          Cir. 1985).   We agree with these cases that proximity in time is          a  factor to be considered in determining relevancy under Fed. R.          Evid.  404(b) of  "other crimes,  wrongs, or  acts."   See, e.g.,                                                                 ___  ____          United  States v.  Fields,  871 F.2d  188,  197 (1st  Cir.  1989)          ______________     ______          ("Probative value must  be considered in light  of the remoteness          in time of the other act and the degree of the resemblance to the          crime  charged."); United States v. Currier, 836 F.2d 11, 17 (1st                             _____________    _______          Cir.  1987) (noting that  the prior bad  acts were both  close in          time  and  in  nature to  the  crime  charged).18   In  addition,          Appellant also points out that the tapes here are distinguishable          from  those admitted  in  Currier, based  on  the fact  that  the                                    _______          recorded conversations in that case occurred immediately prior to          and  after the  crime charged  and were,  thus, found  to "help[]          establish appellant's  intent to  commit the crime  charged." Id.                                                                        ___          Because  the  conversations here  occurred  two  years after  the          predicate offenses,  Appellant contends that the  tapes cannot be          said  to be so "closely intertwined"  with the predicate offenses                                        ____________________          18  The defendant in Currier objected to the tape at trial on the                               _______          basis  of Fed. R.  Evid. 403.   Reasoning that "because  the same          revelations  of  'skullduggery' that  formed  the  basis for  his          assertion that  the tape was unfairly prejudicial could also have          formed  the basis for an  additional assertion that  the tape was          offered only to show his bad character," we held that defendant's          Rule  403 objection was sufficient  to preserve a  claim of error          under Rule 404(b), noting that the two  "usually . . . go hand in          glove."  Currier, 836 F.2d at 17.                   _______                                         -30-          so as to help  establish Appellant's intent to commit  the crimes          charged.                      We are unswayed by Appellant's arguments.  Here,  as we          discuss below, no evidence of prior bad acts was admitted in this          case; and, because Appellant  has not cited to any  cases holding          that  proximity  in  time   is  a  prerequisite  for  determining          relevance under  Fed. R. Evid. 403, and because we have not found          any, we are unconvinced  that the timing of the  conversations is          of  any   consequence  or   otherwise  undermines   their  strong          relevance.  See, e.g.,  United States v. Perkins, 926  F.2d 1271,                      ___  ____   _____________    _______          1279-80 (1st Cir. 1991)  (finding no error in admission  of post-          conspiracy statements made to  a government informant where court          found  statements were an admission corroborating trial testimony          and  reflected  complicity and  consciousness  of  guilt).   Even          assuming,  arguendo,   that  proximity  must  be   considered  in                     ________          determining relevance,  we nonetheless find that  even though the          conversations occur  two years after the  attempt and conspiracy,          they are "closely intertwined  with the charged offense[s] .  . .          [and]  [] provid[e] . .  .  significant  contextual material" for          the jury.   Currier,  836  F.2d at  17 (citations  omitted).   As                      _______          discussed above,  while they do not  necessarily show Appellant's          intent  to  commit  the  attempted  arson  or  to  enter  into  a          ______          conspiracy, they  do show Appellant's consciousness  of guilt and          complicity  as  well  as the  existence  of  a  conspiracy.   See                                                                        ___          Perkins, 926 F.2d at 1279-80.          _______                                         -31-                    While  not   all  evidence  with  probative   value  is          admissible,  we do  not  find that  its  value is  "substantially          outweighed by the  danger of  unfair prejudice."   Fed. R.  Evid.          403.    In reviewing  the  balancing undertaken  by  the district          court, we give great deference to the  district court's judgment,          and  "[o]nly in  exceptional  circumstances will  we reverse  the          exercise of a district  court's informed discretion vis- -vis the          relative  weighing of  probative value  and unfairly  prejudicial          effect."    Currier, 836  F.2d at  18  (quoting United  States v.                      _______                             ______________          Griffin, 818 F.2d 97,  101-02 (1st Cir.), cert. denied,  484 U.S.          _______                                   ____________          844 (1987)).   Based on our review of the record,  we do not find          that  the probative  value of  the  tapes --  as edited19  -- was          outweighed by  unfairly prejudicial evidence.   See, e.g., United                                                          ___  ____  ______          States v. Mu oz, 36 F.3d 1229, 1233 (1st  Cir. 1994) (noting that          ______    _____          the  question  under Rule  403 is  one  of unfair  prejudice, not          prejudice alone); Currier, 836  F.2d at 18 ("Unfairly prejudicial                            _______          evidence  is evidence . .  . that 'triggers  [the] mainsprings of          human action [in  such a way as  to] cause the  jury to base  its          decision on  something other than the  established proposition in          the  case.'") (quoting  1 Weinstein's  Evidence    403[03], 36-39          (1986)).   Neither the fact that many of Appellant's remarks were          made  in  response to  questions  or comments  by  the government          witness, nor  that relevant  conversations were  intertwined with          non-relevant ones, persuades us  to reach a different conclusion.                                        ____________________          19  As mentioned above, after hearing arguments from counsel, the          district  court agreed to  excise most of  the portions regarding          which Appellant raised specific objections.                                           -32-          Even  the  fact that  the  recordings reveal  that  Appellant had          initially wanted to hire "a guy from organized crime so to speak"          to  burn  the restaurant,  (Transcript, Vol.  4  at 32),  or that          Appellant tells Schaller  what to say about pouring the gasoline,          (Transcript,  Vol.  4  at  44),  does  not   make  them  unfairly          prejudicial.  Finally,  we  do  not find  that  any  "exceptional          circumstances"20  exist which  warrant reversal  of  the district          court's rulings.21                           B.  The Tapes' Prior Bad Act Evidence                        B.  The Tapes' Prior Bad Act Evidence                    We find Appellant's reliance on Fed. R. Evid. 404(b) to          be  irrelevant on  appeal.22   While the  transcript of  the pre-          trial hearing regarding the admissibility of the tapes shows that          there  were  references to  previous  fires  which arguably  fall                                        ____________________          20   We note that Appellant  does not specify on  appeal that any          "exceptional circumstances" exist.            21  Because  we find that  the district court  did not abuse  its          discretion,  we need not decide whether the admission of the tape          recordings -- even if an error -- was nonetheless harmless.          22  Fed. R. Evid. 404(b) provides in pertinent part:                      Evidence of other crimes, wrongs, or acts                      is not admissible  to prove the character                      of a  person in  order to show  action in                      conformity therewith.   It may,  however,                      be admissible for other purposes, such as                      proof  of  motive,  opportunity,  intent,                      preparation,  plan,  knowledge, identity,                      or  absence  of   mistake  or   accident,                      provided   that   upon  request   by  the                      accused,  the  prosecution in  a criminal                      case shall provide  reasonable notice  in                      advance of  trial, or during trial if the                      court  excuses  pretrial  notice on  good                      cause shown, of the general nature of any                      such evidence it intends to  introduce at                      trial.                                         -33-          within  Fed.  R.  Evid.  404(b),  the  record  shows  that  these          references   were   excised   by  agreement   of   the   parties.          (Transcript, Vol. 4 at 21).  Not only  does Appellant not specify          on  appeal what  "other crimes,  wrongs, or  acts" under  Fed. R.          Evid. 404(b) were erroneously admitted into evidence,  we find no          mention  of any in the portions that were admitted into evidence.          Accordingly, we do not address this argument further.                              C.  The Tapes' Audibility                              C.  The Tapes' Audibility                    Lastly,  as  to  Appellant's  audibility  argument,  in          exercising its broad discretion in ruling on the admissibility of          tape  recordings, even where  portions are  unintelligible, Font-                                                                      _____          Ram rez,  944 F.2d at 47, the district court "must decide whether          _______          'the inaudible parts are  so substantial as to make the rest more          misleading  than  helpful.'"   Id.  (citations  omitted) (quoting                                         ___          Gorin  v.  United States,  313 F.2d  641,  652 (1st  Cir.), cert.          _____      _____________                                    _____          denied, 374 U.S.  829 (1963)).   While the  district court  found          ______          that there were segments  of poor audio and static,  the district          court  nonetheless decided to admit them.  The district court was          swayed by the fact that the parties stipulated to the accuracy of          the  transcript  as a  true  recording of  the  tapes.23   We are          similarly  swayed  and  find  no  abuse  of  the   court's  broad          discretion, even as  to the March 1,  1994, tape about which  the          district court was most  concerned.  Based  on our review of  the                                        ____________________          23   Inaudible  segments were  indicated  in the  transcript with          parentheticals, such as "static" or "unintelligible."                                          -34-          transcript,24  we  disagree  with   Appellant's  claim  that  the          inaudible parts, when taken as a whole, were so substantial as to          make  the   rest  more  misleading  than   helpful,  because  the          transcript clearly  evidences  that sufficient  portions  of  the          tapes, including  statements by both Schaller  and Appellant, are          audible.    As discussed  earlier,  these  segments are  relevant          because  they  include,  inter  alia,  admissions  by  Appellant,                                   ___________          tending  to show  consciousness  of guilt  and corroborate  trial          testimony.   Furthermore,  the district  court gave  a cautionary          instruction  to the  jury that  not only  informed them  that the          tapes, but not the  transcript, were evidence, but also  that the          jurors had to draw their own conclusions regarding  their content          and  probative value based on  what they themselves  heard on the          tapes.25   United States  v. Carbone, 798  F.2d 21,  26 (1st Cir.                     _____________     _______          1986) (finding that the judge's handling of the transcript was in          accord  with  the  law where  the  record  shows  that the  judge          carefully  instructed   the  jurors  that  the   tapes,  not  the          transcripts, were  evidence and that any  differences between the                                        ____________________          24    See  n.17, supra.    In  ruling  on Appellant's  audibility                ___        _____          argument, we  add only this:   By not including the  tapes in the          record on appeal, Appellant forfeited the right to their review.          25   We also  note that  as to the  one disputed  sentence in the          transcript (whether Appellant said "I am aware  of that" or "I am          not  aware of  that",  (Transcript, Vol.  4  at 23)),  the  court          allowed   two  versions  of  the  page  to  be  included  in  the          transcript, informed the jury that the parties were in dispute as          to   what  Appellant   actually  said   on  that   page  (without          specifically identifying the disputed sentence), and gave another          cautionary instruction that they  were to make their  own finding          based  on what  they heard  on the  tapes.   The jury  heard that          segment  twice, each time while reading along with the respective          versions.  (Transcript, Vol. 5 at 54-59).                                         -35-          two  must  be  resolved  in  favor  of  what  was  heard  on  the          recording).   Based on the  record, and particularly  in light of          Appellant's stipulation  to the accuracy  of the transcript  as a          true  recording of the tapes,  we find no  abuse of discretion by          the  district  court  in  admitting the  tapes  over  Appellant's          audibility objection.                              IV.  Appellant's Sentence                              IV.  Appellant's Sentence                    Finally, Appellant appeals his  sentence imposed by the          district court pursuant  to the federal arson  guidelines.26  See                                                                        ___          U.S.S.G.    2K1.4(a)(1)-(4).   The  arson guidelines  provide, in          pertinent part:                    (a) Base Offense Level (Apply the Greatest):                        (1)  24, if  the offense (A)  created a                      substantial  risk  of  death  or  serious                      bodily injury  to any person other than a                      participant in the offense, and that risk                      was created knowingly; . . .                         (2) 20,  if the  offense (A)  created a                      substantial  risk  of  death  or  serious                      bodily injury to any person  other than a                      participant in the offense; . . .                         (3)  2  plus  the  offense  level  from                       2F1.1  (Fraud and Deceit) if the offense                      was committed in connection with a scheme                      to defraud; or                                        ____________________          26    All  citations to  the  Sentencing  Guidelines  are to  the          November  1994  version,  which  is the  version  applied  by the          district court,  as it  was  the one  in effect  at  the time  of          Appellant's  May 25,  1995,  sentencing.   See  United States  v.                                                     ___  _____________          Aymelek,  926  F.2d  64, 66  n.1  (1st  Cir.  1991) (noting  that          _______          district courts should  apply the  version of  the Guidelines  in          effect  at  the  time  of  sentencing,  barring  ex   post  facto          problems).  Here, the applicable guidelines had not changed after          Appellant committed the instant offenses.                                          -36-                        (4)  2  plus  the  offense  level  from                       2B1.3 (Property Damage or Destruction).          U.S.S.G.      2K1.4;   see   U.S.S.G.  App.   C,  Amendment   330                                 ___          (restructuring  the  arson  guidelines).   New  language  in  the          Commentary,  Application  Note  2, provides  that  "[c]reating  a          substantial  risk  of death  or  serious  bodily injury  includes          creating that  risk to firefighters  and other emergency  and law          enforcement personnel who respond  to or investigate an offense."          See, e.g., United States v. Turner, 995 F.2d 1357, 1365 (6th Cir.          ___  ____  _____________    ______          1993)  (finding that  endangering firefighters is  an appropriate          factor);  United States  v.  Grimes, 967  F.2d  1468, 1471  (10th                    _____________      ______          Cir.), cert. denied,  506 U.S.  927 (1992)  (noting that  several                 ____________          other circuits had come to the same conclusion).                     Appellant challenges  the district court's  sentence on          three  separate  grounds.   We  address them  in  turn, reviewing          findings of fact  for clear error, mindful that they need only be          supported  by  a preponderance  of  the  evidence, and  reviewing          questions  of law de novo,  including the scope and applicability                            _______          of a relevant guideline.   See 18 U.S.C.   3742(e); United States                                     ___                      _____________          v. Mart nez-Mart nez,  69 F.3d 1215, 1224 (1st Cir. 1995); United             _________________                                       ______          States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994).           ______    ________                     A.  The "Fraud or Deceit" Base Offense Level                     A.  The "Fraud or Deceit" Base Offense Level                    First,  Appellant  contends  that  the  district  court          should  have  applied  U.S.S.G.     2K1.4(a)(3),  which  requires          computation of the base offense level  as 2 plus the base offense          level  for  "Fraud  and  Deceit."    Appellant  argues  that  the          overwhelming  evidence  at  trial established  that  his  primary                                         -37-          purpose was to defraud the insurance company and that  Appellant,          while creating some  risk of  death or serious  bodily injury  by          pouring gasoline,  did not  knowingly create a  substantial risk.          While  the record does indicate  that Appellant participated in a          scheme  to defraud the  insurance company,  we conclude  that the          district court properly chose subparagraph   2K1.4(a)(1) based on          its  specific  finding --  which, as  we  discuss below,  was not          clearly  erroneous   --  that   Appellant  knowingly   created  a          substantial risk  of death  or serious  bodily injury  to persons          other  than the participants in the attempted arson.  See Grimes,                                                                ___ ______          967 F.2d at  1472 (holding that district  court properly rejected          application  of  fraud  guideline,    2K1.4(a)(3),  and  properly          applied    2K1.4(a)(2)  in case  involving defendant's  effort to          obtain   insurance   through   arson   where   defendant  created          substantial  risk  of  injury or  death).    The  arson guideline          instructs that the base offense level  is determined by selecting          the  highest level from among four choices.  Section 2K1.4(a)(1)-          (4); United  States v. Mizrachi, 48 F.3d 651, 655 (2d Cir. 1995).               ______________    ________          The Government  contends that  applying   2K1.4(a)(3)  would only          yield  a base  offense  level  of  19, less  than  that  under             2K1.4(a)(1), which  is  24.    Appellant does  not  dispute  this          calculation   or  otherwise   present  his   own      2K1.4(a)(3)          calculation,  nor was there  any discussion of  this issue during          the  sentencing  hearing.    Assuming,   without  deciding,  that          calculation under    2K1.4(a)(3) would  have yielded only  a base          offense  level  of  19,  we  conclude  that  the  district  court                                         -38-          correctly applied    2K1.4(a)(1)  because it yielded  the highest          base offense level based on  its finding that Appellant knowingly          created  a substantial risk of  bodily injury.   Cf. Mizrachi, 48                                                           __  ________          F.3d  at  656  (affirming   district  court's  application  of             2K1.4(a)(3) in  sentencing defendant  for arson, mail  fraud, and          money  laundering offenses  where facts  yielded an  initial base          offense level of 35).                      B.  Knowing Creation of a Substantial Risk                      B.  Knowing Creation of a Substantial Risk                    Second,  Appellant  argues  that the  district  court's          finding that  Appellant knowingly  created a substantial  risk of          death  or  serious  bodily injury  to  any  person  other than  a          participant in the offense is not supported by a preponderance of          the  evidence.     Whether   a  defendant  knowingly   created  a          substantial  risk of death  or serious  bodily injury  within the          meaning of section  2K1.4 of  the Guidelines raises  an issue  of          first impression in that this court has not previously determined          what level of knowledge  is required under   2K1.4(a)(1)(A).   At          the outset, we  note that this determination  involves a two-step          inquiry.   A court must first ask whether the defendant's actions          created  a substantial risk of death or serious bodily injury and          then  decide whether  the defendant  acted knowingly  in creating          that risk.   See United States  v. Karlic,  997 F.2d 564,  568-69                       ___ _____________     ______          (9th  Cir. 1993) (stating that the first inquiry is objective and          the second is subjective).                             1.  The Substantial Risk . . .                            1.  The Substantial Risk . . .                                         -39-                    Leaving aside the question of knowledge for the moment,          we conclude first that  the district court did not clearly err in          finding that  Appellant created a  substantial risk  of death  or          serious bodily injury to  any person other than a  participant in          the offense.  The  district court based its finding  primarily on          the  PSR,  which  indicated, inter  alia,  that  the  presence of                                       ___________          gasoline  created   the  potential  for  a   fire  or  explosion.          According  to the PSR, a  fuel air explosion  could have occurred          had "a heat source been introduced within a specific danger range          between the  place where  the  gasoline was  poured and  anyplace          within the  building where  the odor  of gasoline  was detected,"          (PSR, at  22), and  that "because the  gasoline was  poured in  a          confined area which  contained electrical outlets,  an electrical          spark or other heat source  could have ignited the vapors in  the          confined  area at any time," (PSR, at 23).  Although the evidence          indicates that Appellant  only planned to  ignite the fire  after          the  restaurant closed,  the  district court  concluded that  the          potential  for a  fuel  air  explosion or  for  a fire  to  start          accidentally  created  a substantial  risk  of  death or  serious          bodily injury to the occupants of the building at the time of the          pouring of the gasoline in the  attic as well as to  firefighters          and others who would respond to the incident.                      We find no clear error  in this finding of  substantial          risk to patrons and  firefighters.  It was properly based on both          the PSR and the sentencing judge's  common sense understanding --          which  Appellant  conceded  during  the  sentencing  hearing  was                                         -40-          appropriate -- of the risks associated with pouring an accelerant          to  start a  fire in  an occupied  building where  there  was the          potential for  a fuel  air explosion  to occur or  for a  fire to          start accidentally.   See Medeiros,  897 F.2d at  20 (relying  on                                ___ ________          common  sense  in finding  under  earlier  arson guidelines  that          defendant conspired  "to cause the  kind of fire  that recklessly          would endanger others.").  As the  district court correctly noted          in  response to  Appellant's insistence  that  there was  no risk          created   because   no   fire  actually   occurred,   (Sentencing          Transcript, pages  19-22), the Guidelines speak of  "risk."  "The          fact that  fortuitously no one  was injured and  extensive damage          did  not result [because no fire  or explosion actually occurred]          does  not further [A]ppellant's contention that he  did not . . .          create  a substantial risk  of death  or serious  bodily injury."          United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir. 1993).          _____________    _________                    Furthermore, in light of  the federal arson guidelines'          commentary,  see U.S.S.G.   2K1.4, Application Note 2, we find no                       ___          clear error in  the district court's finding  of substantial risk          given  its finding  that firefighters "could  have been  blown to          smithereens" had a spark  ignited the gasoline vapors (Sentencing          Transcript, at 20).  See, e.g., Turner, 995 F.2d at 1365; Grimes,                               ___  ____  ______                    ______          967  F.2d  at 1471.    While "all  fires present  some  danger to          firefighters  required  to  extinguish  it,  .  .   .  [w]here  a          spectacular fire  is planned near an occupied building, a finding          of  reckless  endangerment to  firefighters would  be based  on a          common  sense understanding of the  risks of putting  out a major                                         -41-          fire when rescue attempts are likely to be necessary."  Medeiros,                                                                  ________          897  F.2d at 20.  Similarly, here,  although there is no evidence          that  Appellant  planned  a  "spectacular fire,"  the  sentencing          judge's finding of substantial risk in this case was based on his          -- and,  again, our  --  common sense understanding of  the risks          associated with  using an accelerant  in an occupied  building to          start  a fire  where  there  was the  potential  for a  fuel  air          explosion to occur or for a fire to start accidentally.27                             2.  . . . Knowingly Created                             2.  . . . Knowingly Created                    Next, we must decide whether the district court clearly          erred  when  it  found  that  Appellant  knowingly  created  this                                                   _________          substantial risk.   While we  review the court's  factual finding          for  clear  error,  the definition  of  a  Guidelines  term is  a          question of law which  we review de novo.   Mart nez-Mart nez, 69                                           _______    _________________          F.3d at 1224.                    Looking  first  to the  statute, we  note that  the two          highest  base offense  levels  in the  federal arson  guidelines,            2K1.4(a)(1)  and      2K1.4(a)(2),  contain   almost  identical          language.  The latter, for which there is a base offense level of          20, applies to  the creation of  a substantial risk  of death  or          serious bodily  injury.   The former, for  which there is  a base          offense level of  24, applies to the  knowing creation of such  a          risk.    This structure  clearly suggests  that  there must  be a                                        ____________________          27   In  Medeiros, we  affirmed the  district court's  finding of                   ________          "reckless endangerment"  under the earlier arson  guidelines.  We          consider  the facts supporting such a finding to be relevant to a          finding of "substantial risk" under the amended guidelines.                                         -42-          meaningful distinction between the  two sections.  See Honeycutt,                                                             ___ _________          8  F.3d at 787 (noting that "[c]learly  it was intended for there          to  be a  distinction between  the two  sections").28   Given the          structure   of  the   arson  guidelines,   we  conclude   that             2K1.4(a)(1)(A) requires  that the district court  make a specific          finding that the defendant "knowingly" created a substantial risk          of death or serious  bodily injury, as opposed to  merely finding          that defendant  recklessly (or  negligently) created such  a risk          which  would   more  appropriately   trigger  application   of             2K1.4(a)(1)(B).      Apart  from   this   rather  straightforward          observation,   no  guidance  is   gleaned  from   the  Sentencing          Guidelines,  as "knowingly"  is  not defined.   In  addition, the          usual rule  of  giving  an undefined  statutory  term  its  plain          meaning provides little direction given that "'[k]nowledge' means          different  things  in  different  contexts."   United  States  v.                                                         ______________          Spinney, 65 F.3d 231, 236 (1st Cir. 1995).          _______                    Our own precedent is of little help because, while this          court  has  addressed  the   application  of  the  federal  arson          guidelines,  see  Medeiros,  897  F.2d  at  18  (applying  former                       ___  ________                                        ____________________          28  In discussing   2K1.4's  application note about firefighters,          the  Honeycutt   court  concluded   that  knowledge  alone   that               _________          firefighters  will respond to a fire "cannot suffice to satisfy            2K1.4(a)(1)."   The court  reasoned that  if that knowledge  were          alone sufficient  then    2K1.4(a)(2) (creation of  a substantial          risk of death or  serious bodily injury)  would be subsumed by             2K1.4(a)(1) (knowing creation of that risk).  As the court noted,          "fires  are  inherently   dangerous,  and   the  knowledge   that          firefighters  and emergency  personnel respond  to  virtually all          fires can ordinarily  be presumed."   Honeycutt, 8  F.3d at  787.                                                _________          "The  arsonist must  know that  a specific  fire for  some reason          poses a substantial  risk of  death or serious  bodily injury  to          firefighters and emergency personnel who may respond."  Id.                                                                  ___                                         -43-          U.S.S.G.    2K1.4(b)(2)  and affirming  district court's  finding          that defendant  "recklessly endangered  the safety  of another");          see also, United States v.  Flowers, 995 F.2d 315, 316 (1st  Cir.          ________  _____________     _______          1993)  (involving but  not  discussing application  of    2K1.4);          United  States  v. Johnson,  952 F.2d  565,  585 (1st  Cir. 1991)          ______________     _______          (same),  it has  never  addressed  what  level  of  knowledge  is          required under  the highest  offense level where  the substantial          risk was created knowingly by the defendant.                    Turning to our fellow circuits,  we note that the Ninth          Circuit, and  later the Eleventh Circuit,  adopted the definition          of "knowingly" as used  in the Model Penal Code (the  "MPC") when          applying   2K1.4.  See Honeycutt, 8 F.3d at 787; United States v.                             ___ _________                 _____________          Karlic, 997  F.2d 564,  569 (9th  Cir. 1993).   Drawing from  the          ______          MPC's  definition,29 the  Ninth  Circuit held  that "a  defendant          can  be found to have  'knowingly' created a  substantial risk of          death  or serious  bodily  injury  under     2K1.4  only  if  the          defendant was aware that  a substantial risk of death  or serious                                        ____________________          29   The Model  Penal Code's  definition of  "knowingly" provides          that:                      A person acts knowingly with respect to a                      material element of an offense  when: . .                      .                       (ii) if the element involves a  result of                      his  conduct,  he  is aware  that  it  is                      practically certain that his conduct will                      cause such a result.          Model Penal Code    2.02(2)(b) (1985).  The Model Penal Code also          ________________          states that  "[w]hen knowledge of  the existence of  a particular          fact is an element  of an offense, such knowledge  is established          if  a person  is aware of  a high  probability of  its existence,          unless he actually believes it does not exist."  Model Penal Code                                                           ________________            2.02(7) (1985).                                         -44-          bodily  injury  was  'practically  certain' to  result  from  the          criminal act."   Karlic, 997  F.2d at 569;  accord, Honeycutt,  8                           ______                     ______  _________          F.3d at 787.  We  note that other courts have neither  explicitly          defined "knowingly" nor adopted the MPC's  definition, apparently          finding  it unnecessary  where the  district court  could clearly          conclude from  the facts whether  the defendant knew  his actions          created a substantial  risk of  death or  serious bodily  injury.          For example,  in United States v.  Markum, 4 F.3d 891  (10th Cir.                           _____________     ______          1993),  the  court found  that a  fire  set with  gasoline during          business hours which put  firefighters in severe jeopardy because          of the ferocity of the fire and the risk of explosion constituted          "circumstances [which]  more than justified  the district court's          finding  that [defendant], as a co-conspirator, knowingly created          a  substantial risk of  death or serious bodily  injury."  Id. at                                                                     ___          896-97.  Similarly,  in United  States v. Turner,  995 F.2d  1357                                  ______________    ______          (6th Cir.), cert.  denied, 114  S. Ct. 282  (1993), the  district                      _____________          court concluded  that defendant's actions could  fit under either            2K1.4(a)(1)(A) or  (B).  As  to the defendant's  knowledge, the          court found that defendant knowingly created the substantial risk          given  that  people in  the  residence  adjacent to  the  burning          building  were likely  to  be asleep  and windy  conditions would          cause the  fire to spread  quickly.  Id. at  1365.  The  court in                                               ___          Turner  also found that defendant "should have known" that he was          ______          placing  firefighters at  a  substantial risk  by committing  the          arson  in weather  conditions that  would make  extinguishing the          fire extremely difficult.  Id.                                     ___                                         -45-                    As  this  relevant  case  law  provides  at  least  two          distinct  approaches, we  find  it helpful  when considering  the          question  of  "knowledge"  to  recall  that  "the  length of  the          hypothetical  knowledge continuum"  is  marked  by  "constructive          knowledge"  at one end and  "actual knowledge" at  the other with          various  "gradations,"  such as  "notice  of  likelihood" in  the          "poorly charted area that stretches between the poles."  Spinney,                                                                   _______          65 F.3d at 236-37 (discussing the continuum in the context of the          "shared  knowledge"  requirement  in prosecution  of  aiding  and          abetting armed robbery).  In terms of this continuum,  "practical          certainty"  would seem  most  akin to  "actual  knowledge."   Id.                                                                        ___          (noting  that   "[a]ctual  knowledge,  after   all,  is   certain          knowledge").    We are  inclined to  conclude  that a  showing of          knowledge anywhere  along this continuum satisfies application of             2K1.4(a)(1)(A).30   This  approach  would  be consistent  both          with  the guidelines'  mandate that  a meaningful  distinction be          made between the two highest base offense levels as  well as with          the  "common  sense"  approach  we endorsed  in  Medeiros.    See                                                           ________     ___          Medeiros, 897 F.2d at 20.  That said, however,  at this  juncture          ________          we  need not  definitively resolve  what level  of knowledge,  in          addition  to  "actual knowledge,"  is  required.   Even  assuming                                        ____________________          30  "Constructive knowledge is the law's way of recognizing that,          given an awareness of certain subsidiary facts, a person is quite          likely to know, can be expected to know, or at  least should have          known that a further fact existed."  Spinney, 65 F.3d at 236.  In                                               _______          contrast, "[a]ctual  knowledge, as the term  implies, reduces the          need  for  inference;  it  suggests the  presence  of  particular          evidence which,  if credited,  establishes conclusively  that the          person  in  question  knew  of  the  existence  of  the  fact  in          question."  Id.                       ___                                         -46-          without deciding  that, for   2K1.4(a)(1)(A)  to apply, Appellant          had to  be "aware  that a  substantial risk  of death or  serious          bodily  injury  was  'practically  certain' to  result  from  the          criminal act,"  Karlic, 997  F.2d at  569, we reject  Appellant's                          ______          contention  that  the  district  court's  findings  are   clearly          erroneous.                      On  appeal, Appellant  argues that  the  district court          clearly  erred   in  finding   that  he  knowingly   created  the          substantial  risk,   because  "[it]   made  no  finding   that  a          substantial  risk   of  death   or  serious  bodily   injury  was          'practically certain'  to  result from  his  [attempted  arson]."          Appellant contends  that the  district court's findings  that the          restaurant was occupied at  the time the gasoline was  poured and          that  the   vapors  could  have  been   accidentally  ignited  is          insufficient for the application of   2K1.4(a)(1)(A), because the          record  does not  show by  a preponderance  of the  evidence that          Appellant  was  "practically certain"  that  an  accidental cause          could have started the fire.                      Giving due deference to  the court's application of the          guidelines  to the facts, we conclude that the district court did          not clearly err in finding that  Appellant "knew that . . . there          was  a  substantial risk  of  death  or  serious  bodily  injury"          (Sentencing Transcript at 23).  In arriving at our conclusion, we          note that  facts contained in a presentence report ordinarily are          considered reliable evidence for sentencing purposes.  See United                                                                 ___ ______          States  v. Morillo,  8 F.3d  870, 872 (1st  Cir. 1993).   Indeed,          ______     _______                                         -47-          district courts possess "broad  discretion to determine what data          is, or is  not, sufficiently  dependable to be  used in  imposing          sentence."   United States v.  Tardiff, 969 F.2d  1283, 1287 (1st                       _____________     _______          Cir.  1992).  This is particularly true where, as here, Appellant          offered no evidence to suggest  an inaccuracy in the  presentence          report's facts.  Id., 8 F.3d at 873 (collecting cases).                           ___                    The  record  shows  that,  at  the time  of  the  first          attempt,31  Appellant knew  that  at least  two other  employees,          including Schaller (who at that time was not a participant in the          offense),  were in  the restaurant.   As  the court  in Honeycutt                                                                  _________          noted, "[i]t  is difficult to  imagine a clearer  illustration of          the  knowing creation of a  substantial risk of  death or serious          bodily injury."   Honeycutt, 8 F.3d at 787 (affirming application                            _________          of   2K1.4(a)(1)(A) where defendant threw a Molotov cocktail at a          structure  that he admitted he  knew was occupied).   In terms of          our continuum, this strikes us as constituting "actual knowledge"          and/or "practical certainty."                    At the  time of  the second  attempt, the  record shows          that gasoline was poured, hours before the intended ignition,  in          a confined  area atop the Galleria II at a time when both patrons          and  employees were inside.  Appellant knew gasoline was a highly          flammable liquid and  he arranged  for it  to be  poured for  the          specific  intent of  lighting a  fire after  business hours.   In          response  to  Appellant's  "practical  certainty"  argument,  the                                        ____________________          31   We address the first  count (the attempt to start  a fire in          the  attic with paper) even though Appellant's brief only focuses          on the second count (involving the gasoline).                                          -48-          district court found that "the fact that [Appellant] . . . wanted          to [ignite] the fire  outside of business hours,  suggests . .  .          that he  knew of the risk"  to people inside the  building and to          those who would respond  to the fire.  (Sentencing  Transcript at          18).   Contrary  to Appellant's  contentions, these  findings are          sufficient for the application of the highest base offense level.          While  Appellant may not have been aware that it was "practically          certain"  that  a fire  could  ignite  accidentally  or that  the                                                 ____________          restaurant  and any  occupants could  be blown  to "smithereens,"          (Sentencing Transcript  at 20),  we  remind Appellant  -- as  the          district court did more than once -- that the guidelines call for          the  knowing   creation  of  a   substantial  risk.     Here,   a                                                        ____          preponderance of the evidence supports the finding that Appellant          was  aware that  a substantial  risk of  death or  serious bodily          injury  was "practically  certain" to  result from  the use  of a          highly  flammable accelerant  for  purposes of  starting a  fire.          Appellant presented no evidence to rebut the preponderance of the          evidence  presented   on  this  point.     Furthermore,  we  find          irrelevant  whether or  not  Appellant was  "practically certain"          that an  accidental ignition  would occur  given that  the record                   __________          supports  a finding that he was "practically certain" that he was          creating a substantial  risk of death  or serious bodily  injury.                                  ____          Finally, the district court  again correctly rejected Appellant's          argument that he did  not knowingly create a risk because no fire          or explosion actually  occurred.   See Honeycutt, 8  F.3d at  787                                             ___ _________          ("[t]he fact that  fortuitously no one was injured  and extensive                                         -49-          damage did  not result does not  further [A]ppellant's contention          that he did not knowingly create a substantial risk.").  At issue          is  Appellant's  state of  mind, not  the  actual results  of his          actions.   Id.; cf. Medeiros,  897 F.2d at  20 (finding that  the                     ___  ___ ________          defendant "specifically intended to cause  the kind of fire  that          recklessly would endanger others").                     C.  Two-Level Enhancement for Leadership Role                    C.  Two-Level Enhancement for Leadership Role                    Finally,  Appellant  appeals the  two-level enhancement          which the district court  imposed for his leadership role  in the          offense.  See U.S.S.G.   3B1.1(c).  As we have said before, "role                    ___          in the offense" determinations are fact intensive and we normally          review  for clear error.  See United States v. Tejada-Beltr n, 50                                    ___ _____________    ______________          F.3d 105, 111 (1st Cir. 1995); United States v. Schultz, 970 F.2d                                         _____________    _______          960, 963-64 (1st Cir.  1992), cert. denied, 506 U.S.  1069 (1993)                                        ____________          (citations omitted).  Appellant argues that he and Schaller were,          at best, "equals" and nothing more than "partners in crime."                     Under U.S.S.G.    3B1.1(c), a two-level enhancement  is          warranted if  the sentencing  court determines that  the criminal          enterprise involved at least  two participants, and the defendant          exercised  control  over,   or  was  otherwise   responsible  for          organizing the  activities of, at  least one other  individual in          committing the crime.  See, e.g., Morillo,  8 F.3d at 872; United                                 ___  ____  _______                  ______          States v.  Akitoye,  923 F.2d  221,  227 (1st  Cir.  1991).   For          ______     _______          purposes of  determining the overall number  of participants, the          defendant himself may be  counted as one participant;  "[b]ut, he          must  exercise control  over at  least  one other  participant to                                         -50-          warrant an upward adjustment."  Morillo, 8 F.3d at 872  n.13.  In                                          _______          determining whether  a defendant is  an organizer or  leader, the          Sentencing Guidelines direct judges' attention  to seven factors,          including "the exercise of  decision making authority, the nature          of  participation   in  the   commission  of  the   offense,  the          recruitment of accomplices, the  claimed right to a larger  share          of  the fruits  of  the crime,  the  degree of  participation  in          planning or organizing the  offense, the nature and scope  of the          illegal  activity,  and  the  degree  of  control  and  authority          exercised over  others." U.S.S.G.   3B1.1,  comment.; see Tejada-                                                                ___ _______          Beltr n,  50 F.3d  at  111-13  ("This  list  is  intended  to  be          _______          representative   rather  than   exhaustive.").     Finally,   the          government must bear the  burden of proving that an  upward role-          in-the-offense adjustment is warranted. Morillo, 8 F.3d at 872.                                                    _______                    Here,  it is  undisputed  that  Appellant and  Schaller          participated in the attempted arson of the Galleria II.  Contrary          to  Appellant's  contention  that   he  and  Schaller  were  mere          "equals," evidence was submitted at trial that it was Appellant's          idea to burn the Galleria II; that Appellant devised the time and          method  of committing  the offense;  that Schaller  was persuaded          and, ultimately, recruited by Appellant after Appellant failed to          hire  someone  else   to  commit  the   offense  and  after   his          unsuccessful  attempt  to start  a fire  in  the attic;  and that          Schaller poured the gasoline  at Appellant's request and informed          Appellant  when  he  was   finished.    Contrary  to  Appellant's          argument,  these factual  findings  satisfy the  requirements for                                         -51-          applying   3B1.1(c).  We are unpersuaded by Appellant's  argument          that  the fact that Appellant asked or persuaded Schaller to pour          gasoline  does not show  supervision over him.   While it may not          show  supervision,  it   certainly  shows  --  at  a  minimum  --          Appellant's   exercise   of   decision   making   authority,  his          recruitment  of  accomplices,  and  the  greater  degree  of  his          participation in planning and organizing the two  arson attempts.          Thus,   finding  no   clear   error  in   the  district   court's          determination  of  Appellant's  role,32 we  affirm  the  district          court's two-level enhancement.  United States v. Garc a, 954 F.2d                                          _____________    ______          12, 18 (1st  Cir. 1992) (noting  that, absent  a mistake of  law,          sentencing court's role-in-the-offense determination  is reviewed          only for clear error).                                       CONCLUSION                                      CONCLUSION                                      __________                    For  the   foregoing  reasons,  the   district  court's          judgment and sentence is, in all respects,                    Affirmed.                    Affirmed                    ________                                        ____________________          32  Appellant also contends that  "[t]he finding that [Appellant]          stood to gain  financially from the fire is also erroneous."  The          government  argued that Appellant -- and not Schaller, who had no          ownership  interest in the restaurant or the building -- stood to          gain financially from  a fire at the Galeria II  and, thus, had a          "claimed  right to a  larger share of  the fruits of  the crime."          U.S.S.G.    3B1.1, comment.  We need not address this argument as          the district  court neither made,  nor relied on,  this "finding"          when  it concluded  that adjustment  under U.S.S.G.    3B1.1  was          justified.  See  Sentencing Transcript, page  28.  Even  assuming                      ___          arguendo  that such a "finding" were  clearly erroneous, we would          ________          nonetheless affirm  the district court's adjustment  based on the          evidence of Appellant's role in the offense.                                         -52-
