
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1286                                    UNITED STATES,                                      Appellee,                                          v.                                     SANTO RUIZ,                                Defendant - Appellant.        No. 95-1287                                    UNITED STATES,                                      Appellee,                                          v.                                    VIRGILIO RUIZ,                                Defendant - Appellant.                                     ____________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                           Stahl and Lynch, Circuit Judges,                                            ______________                         and Woodlock,* U.S. District Judge.                                        ___________________                                    _____________            John  C. Doherty  , by  appointment  of  the Court,  for appellant            ________________        Santo Ruiz.            Virgilio Ruiz on brief pro se.            _____________            Kevin J.  Cloherty, Assistant  United States  Attorney, with  whom            __________________        John  M. Griffin,  Assistant  United States  Attorney,  and Donald  K.        ________________                                            __________        Stern, United States Attorney, were on brief for appellee.        _____                                 ____________________                                  February 12, 1997                                 ____________________        _____________________        *Of the District of Massachusetts, sitting by designation.                      STAHL, Circuit Judge.  In July 1993,  a grand  jury                      STAHL, Circuit Judge.                             _____________            indicted defendants-appellants Santo Ruiz and  Virgilio Ruiz,            two brothers,  for various crimes  arising out of  a December            1990  fire that  destroyed  their variety  store in  Roxbury,            Massachusetts.  After a  ten day trial, a jury  convicted the            defendants of maliciously destroying  by fire a building used            in interstate  commerce (18 U.S.C.   844(i)),  mail fraud (18            U.S.C.   1341), conspiracy  to commit the foregoing  offenses            (18 U.S.C.   371), and use of fire to commit a federal felony            (18 U.S.C.   844(h)(1)).  On appeal, the defendants challenge            the  district court's denial  of their motions  to acquit and            for new trial.  They also appeal their sentences.   We affirm            their convictions  but vacate their sentences  and remand for            resentencing.                                          I.                                          I.                                          __                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                      We review de novo  the defendants' challenge to the                                __ ____            evidentiary sufficiency of  their convictions, construing the            evidence  in the light most favorable to the government.  See                                                                      ___            United States v. Olbres,  61 F.3d 967, 970 (1st  Cir.), cert.            _____________    ______                                 _____            denied,  116 S. Ct. 522  (1995).  Like the district court, we            ______            "must  resolve  all  evidentiary  conflicts  and  credibility            questions  in the prosecution's  favor," and, among competing            plausible inferences, we "must choose the inference that best            fits  the prosecution's  theory of  guilt."   Id.   With this                                                          ___                                         -3-                                          3            standard  of review  in  mind, we  turn to  the facts  of the            case.1            A.  Facts            _________                      1.  Pre-Fire Events                      ___________________                       In February  1990, defendant  Santo Ruiz opened  a            retail business named Brothers Fashions and Multiple Services            ("Brothers Fashions"), in the  basement area of a three-story            residential  duplex.    Three  of  Santo's  brothers,  Pablo,            Frederico,   and  co-defendant   Virgilio  Ruiz,   shared  an            apartment directly above the store.  The duplex comprised six            residential   apartments  occupied  by  a  total  of  sixteen            residents, including the building's owner.                                            ____________________            1.  At the  end of the government's case,  Santo and Virgilio            Ruiz  moved for  judgment of  acquittal, pursuant to  Fed. R.            Crim. P.  29.  Because  the defendants presented  evidence in            their defense after  the denial of  the initial motion,  they            are deemed to have waived review of  the earlier motion.  See                                                                      ___            United States v. de la Cruz-Paulino, 61 F.3d 986, 997-98 (1st            _____________    __________________            Cir. 1995); United States  v. Amparo, 961 F.2d 288,  291 (1st                        _____________     ______            Cir. 1992).   Thus, in reviewing  the defendants' sufficiency            of  the evidence challenge,  we consider,  in the  light most            favorable  to  the verdict,  the  evidence  presented in  the            defense  case.  See 2 Charles A. Wright, Federal Practice and                            ___                      ____________________            Procedure   463, at 643-45 (1982).            _________                      We note also that although  defendants' motions for            acquittal and new trial were filed more than seven days after            the  verdicts  were rendered  and  the  jury discharged,  the            motions were  timely because,  within that  seven-day period,            the district court extended the time allowable for making the            motions.   See Fed. R. Evid. 29(c) & 33; see also Carlisle v.                       ___                           ___ ____ ________            United States, 116 S. Ct. 1460, 1463-64 (1996) (holding that,            _____________            absent  proper  time  extension,  a district  court  may  not            entertain an untimely Rule 29 motion).  Thus, we consider the            motions timely  and properly  preserved for our  full review.            See  id. at  1471  (explaining that  a sufficiency  challenge            ___  ___            untimely  brought in  the trial  court  is subject  to "plain            error" review) (Ginsburg, J., concurring).                                         -4-                                          4                      Santo  borrowed  $10,000   from  another   brother,            William  Ruiz,  as  the   start-up  capital  for  the  store;            additionally, Santo incurred  a debt of $4000  to William for            the store's  fixtures.2  The $14,000 debt  remained unpaid in            its entirety through the time of the fire.                      The  store sold  sundry items,  including clothing,            shoes,  blankets, cosmetics, household products, music albums            and  cassettes,  beverages and  candy.    Santo obtained  the            store's  merchandise  for  cash  from a  variety  of  sources            located in  Massachusetts, New Hampshire,  New York, Florida,            and California.                      Virgilio  Ruiz spent  much  time at  the store  and            frequently assisted  Santo, who  did not speak  English, with            needed  language  interpretation.   Although  Santo  was  the            putative owner of  Brothers Fashions,  the evidence  suggests            that  Santo  and  Virgilio  represented  to  others  a  joint            ownership  and responsibility  for the  store.   For example,            both Santo and  Virgilio signed  the lease for  the space  as            well  as  the business  certificate  filed with  the  City of            Boston.                      In  early   September  1990,  Santo   and  Virgilio            negotiated for the installation of a store security alarm and            jointly  signed  the  agreement  with  the  alarm  monitoring                                            ____________________            2.  William had operated a convenience market in the basement            space before the opening of Brothers Fashions.                                          -5-                                          5            service.   The alarm, which could detect heat and motion, was            designed  primarily to  trigger  when a  burglar entered  the            premises after hours; a sufficient  amount of smoke from fire            could also trigger a response.  The alarm, however, would not            operate  unless   the  subscriber  activated  the  system  by            entering  the proper pass code.   About two  weeks before the            fire, Santo ceased activating the alarm system.                      In  early November 1990,  approximately nine months            after Brothers Fashions opened and about six weeks before the            fire,  Santo   and  Virgilio  obtained   $40,000's  worth  of            insurance  coverage  for   the  store's  contents.     During            discussions   with  the   insurance  agent,   the  defendants            specifically asked  about the processing and  payment of loss            claims.   Although such information  was not a  usual part of            the agent's initial discussions about  insurance coverage, in            response  to this  inquiry,  he explained  that receipts  and            cancelled  checks   would  be  required  to   prove  a  loss.            Virgilio, representing Brothers Fashions, signed an insurance            finance agreement.   Coverage  began shortly thereafter  when            the brothers  tendered a down payment  of approximately $750.            The  payment schedule  provided that  a first  installment of            approximately $250 would fall due on December 20, 1990.                      Santo kept in  his possession most of  the time the            only  set of keys to  Brothers Fashions.   Before closing the            business each  day, Santo  would secure the  store-front with                                         -6-                                          6            three heavy  metal security shutters, each  fastened with two            padlocks.   The store's  back door, which  was rarely opened,            measured  three-feet  wide by  four-feet  tall  and could  be            opened only from the inside of the store.  It  was secured on            the inside with a sliding lock and at least one wooden cross-            bar laid across the  door.  An outer iron grate,  locked from            the inside with a padlock, further secured the back door.                      Less  than  two  days  before  the  fire,  Brothers            Fashions was  fully  stocked with  merchandise  displayed  on            clothing racks, shelves, and in display cases.                      2.  The Fire                      ____________                      Around 2:00  a.m. on  Sunday, December 16,  1990, a            fire raged through Brothers Fashions.  The close proximity of            the  store  to a  fire  station  resulted in  near  immediate            response.    Nonetheless, the  blaze  was  serious enough  to            warrant   the  services  of   some  seventy  fire  department            personnel and over one dozen fire vehicles.                      Arriving  at  the scene,  fire-fighters encountered            the metal security shutters  lying in the street in  front of            the store;  the shutters  apparently had been  blown off  the            store-front by a  powerful explosion.  A  fire-fighter in the            first group to  reach the  back of the  building noticed  the            store's back door standing open with flames shooting out from            the  basement.    The  fire-fighters  extinguished  the  fire            without forcible entry of the property.                                         -7-                                          7                      Normally, when a store stocked with clothing burns,            piles  of clothing in various  stages of ruin  remain.  After            the  fire at  Brothers  Fashions was  suppressed, however,  a            casual inspection  of the damaged store  revealed very little            burned or  charred merchandise; rather, all  that was visible            were a  few beverage bottles,  some canned goods  and minimal            charred foodstuffs.   The  dearth of charred  merchandise and            the complete absence of clothing remnants in the store evince            that it was nearly empty when it burned.                      All  of the  apartment  tenants,  except  Virgilio,            escaped  unharmed from  the burning  building.   None  of the            tenants, including Virgilio, required fire-fighter assistance            to evacuate.  Virgilio suffered second and third degree burns            on his  ankles, a severe  cut above  his left eye,  and large            bruises  below his  left  eye  and  across  his  chest.    An            ambulance  carried him from the  scene to the hospital, where            he remained for eighteen days.                      3.  Post-Fire Events                      ____________________                      Subsequent  investigation  revealed  that the  fire            originated  in two  distinct locations  within the  store and            burned in an unusual manner.   Specifically, the burn pattern            indicated  that an  accelerant,  such as  gasoline, had  been            poured  over  a counter  and  other  areas.   The  building's            electrical  and natural  gas  distribution systems  showed no            sign  of having caused or contributed to the fire.  Following                                         -8-                                          8            the fire, Boston  Gas Company, the  natural gas provider  for            the building,  conducted  a search  of  its records  for  the            period from 1984 through the time of the fire for any reports            of gas leak  repairs at  the building.   The search  revealed            nothing.                      Sometime within the first two weeks after the fire,            John  Greenaway, who had been hired for carpentry work on the            premises, opened up the boarded-up store so  that Santo could            retrieve an empty clothes  rack.  In January 1991,  Santo and            Virgilio prepared,  jointly signed  and submitted a  claim to            their insurer --  via certified mail -- asserting  a contents            loss  of some $48,000.   The claim detailed  various items of            store   merchandise  and  fixtures,  including  thousands  of            dollars'  worth  of  men's and  women's  clothing,  curtains,            shoes, blankets, music albums and cassettes, videos, watches,            candy, household items and toys.                      Contrary  to the  insurance agent's  earlier advice            and the  insurance company's request, the  defendants did not            submit any  receipts, invoices,  or other records  to support            their  claim of loss.   Instead, the  defendants claimed that            the fire destroyed all such records and submitted a couple of            photographs purporting to represent the  store merchandise at            the  time of the fire  and a cancelled  check from Virgilio's            bank account  for approximately $15  in cigarette tax.   When                                         -9-                                          9            asked by the  insurance company, Santo  could not recall  the            names of any of his retail merchandise suppliers.                      At various times before trial, Virgilio related his            version of the  fire events  to  his  attending physician,  a            Boston  Fire  Department  investigator,   and,  in  a   sworn            deposition,  representatives of  the insurance  company.   He            professed  a general  inability  to recall  clearly and  gave            somewhat  inconsistent accounts of  the fire events.   To the            extent  Virgilio's  various  stories overlap,  they  indicate            that: he awoke in  the first floor apartment to  the smell of            smoke, went  to the living room  to check the gas  heater and            saw  smoke  coming  through  the  floor;  he  then  heard  an            explosion and ran to awaken his sleeping brothers (Pablo  and            Frederico)  to  warn  them of  the  fire;  he  picked up  the            telephone to call the fire department, but the line was dead;            he proceeded to run out the  front hallway of the duplex  and            down  the stairs toward the building's front exit; on his way            out to the sidewalk in front of the duplex, another explosion            occurred and his  "fuzzy" socks caught  on fire, causing  the            injuries to  his ankles; at some point, he ran into a door --            perhaps the front door  of the apartment unit --  causing his            bruises and the severe cut above his eye.                      4.  The Defendants' Case                      ________________________                      The defendants  presented a joint  defense, calling            to the stand  members of the  Ruiz family: Pablo,  Frederico,                                         -10-                                          10            Santo,  and  Rosa  (Santo's   wife).    Pablo  and  Frederico            testified  that, on the night  of the fire,  Virgilio went to            bed around midnight, and they  retired soon thereafter.  They            stated  that Virgilio later woke them up because of the fire.            Frederico  testified  that  he   then  dressed  quickly   and            proceeded  out the  front door.   As  he descended  the front            stairs,  he met Virgilio, who  was bleeding from his forehead            and down his face.   Frederico and Virgilio ran out the front            of  the building together.   Frederico was not  injured -- by            flame  or otherwise  --  as he  exited.   Upon  reaching  the            sidewalk in front of the building, he noticed fire coming out            of the basement store.  Frederico said that he  then told the            fire-fighters that Pablo was still inside the building.                      Pablo testified that his only avenue of escape from            the  burning building  was  the apartment's  back  door.   He            stated  that when  he exited  the building,  he  observed two            fire-fighters, who, he says, had been attempting  to pry open            the  apartment's back door  to let him  out.  Both  Pablo and            Frederico testified  that they  saw fire-fighters force  open            the  store's back door, which, they claimed, had been closed.            They  further claimed that, upon the opening of the back door            -- which measured  four-feet by  three-feet --  fire-fighters            emerged from  within  the store  wearing  full  fire-fighting            regalia, including oxygen tanks and masks.                                         -11-                                          11                      Santo testified in his  defense.  He explained that            he  initially did  not insure  the  contents of  the Brothers            Fashions  because he  wanted first  to see  how the  business            fared.   He testified that only he  knew the alarm pass code,            and  that he failed to  activate the alarm  for several weeks            before the  fire because of  the recurrence of  false alarms.            He had deduced that  rats entering the store after  hours (to            eat candy) triggered the  alarm, and he wanted to  "kill" the            rodents before further engaging the alarm.  He testified that            he  complained  about  the rats  to  both  the  owner and  to            Greenaway,  who,  in turn,  testified  that  Santo had  never            complained to him about a rat problem.                      Santo suggested  that a  natural gas  explosion may            have contributed to the fire.   Specifically, he claimed that            about one month before the fire, he called Boston Gas because            he smelled  a  natural  gas leak;  contrary  to  other  trial            testimony, he claimed that Boston Gas personnel then came out            to the store  and fixed  the leak.   Santo further  testified            that  there  may have  been paint  and  paint thinner  in the            store, as well as household detergents, that might have acted            as  an  accelerant for  the fire  and  would account  for the            peculiar burn patterns.                      Santo testified that on  December 15, 1990, the day            before the fire, the store was fully stocked.  That night, he            explained, he had closed the store between 5:00 p.m. and 6:00                                         -12-                                          12            p.m. and secured  the front  entrance.  He  insisted that  he            left the  back door fully secured and that he retained in his            possession the only  set of store keys.  He  then went to his            home in Dorchester.   The next morning, around 6:00  a.m., he            received a call at home informing him of the fire.  He walked            to  the store (his car was  not operational), arriving around            8:00 a.m..                      Santo further testified  that, upon his arrival  at            the  fire scene, he  saw ten to fifteen  people in and around            the  burned  store, including  people  from  Boston Gas,  and            Greenaway's  son.   He said  the  people were  removing half-            burned items  from the store.   He admitted at  trial that he            had never previously mentioned his observance of the looters,            even to the insurance company.  He also testified that he did            not attempt to stop the looting because the merchandise taken            was, in any event, ruined.                      Santo admitted  that, although he did  not speak or            understand  English   and  had   to  rely  on   Virgilio  for            translation, he  fully understood his actions  when he signed            the lease to  the store, the business certificate,  the alarm            system contract, and the insurance  claim for $48,000 in lost            inventory.    Santo  denied  removing, or  asking  anyone  to            remove, the  merchandise  from Brothers  Fashions before  the            fire.  He also denied  lighting the fire or asking  anyone to            light the fire.                                         -13-                                          13                      The defendants painted  a picture  of a  prosperous            store that earned some $600 to $1000 in retail sales per day,            suggesting  the  absence of  a  motive  to collect  insurance            proceeds.   The  defendants also  attempted to  establish the            bias of various trial witnesses.   For example, they produced            (contradicted)  evidence of  the  unlawful  absence of  smoke            detectors in the  duplex, suggesting that  the owner had  her            own  motive to  collect insurance  proceeds.   The defendants            also  suggested  that  the  carpenter  Greenaway  was  biased            because  he had married the  owner's niece in  1990 and, upon            the owner's  death, the  owner's niece stood  to inherit  the            building.            B.  Arson and Conspiracy Counts, Analysis            _________________________________________                      1.  Relevant Law                      ________________                      To  prove a  violation of  18 U.S.C.    844(i), the            government   must  establish  that   the  defendants:     (1)            maliciously damaged  or destroyed, or attempted  to damage or            destroy,  (2)  by fire  or an  explosive,  (3) a  building or            personal  property  used in  interstate  commerce  or in  any            activity  affecting  interstate  commerce.    The  government            sought  to prove that Virgilio set the fire, and Santo either            aided  and  abetted him,  or  reasonably  could foresee  that            Virgilio would  set the  fire in  furtherance of  an unlawful            conspiracy.                                         -14-                                          14                      To prove aiding and abetting on  the part of Santo,            the  government  had to  prove  that  Virgilio committed  the            arson,   and  that   Santo   associated  himself   with,  and            participated in,  the arson "as something he  wished to bring            about, and sought by his actions to make it succeed."  United                                                                   ______            States  v.  Loder,  23  F.3d  586,  590-91  (1st  Cir.  1994)            ______      _____            (internal quotation  marks and citations omitted);  see Nye &                                                                ___ _____            Nissen  v.   United  States,   336  U.S.  613,   619  (1949).            ______       ______________            Alternatively, to  convict  Santo of  the  substantive  arson            offense,  the government  had  to establish  that  Virgilio's            setting of the fire was a foreseeable act done in furtherance            of  their  unlawful  conspiracy.   See  Pinkerton  v.  United                                               ___  _________      ______            States, 328 U.S. 640, 647 (1946).            ______                      To prove  the underlying conspiracy --  a predicate            to Santo's Pinkerton liability as well as a substantive count                       _________            in  the indictment -- the  government needed to establish the            defendants'  knowledge  and  voluntary  participation  in the            agreement, and an overt act in furtherance of it.  See United                                                               ___ ______            States v. Sawyer,  85 F.3d  713, 742 (1st  Cir. 1996).   "The            ______    ______            agreement  need  not  be  explicit; a  tacit  agreement  will            suffice."   Id.   To  establish voluntary  participation, the                        ___            government must prove both the intent to agree and the intent            to effectuate  the object of  the conspiracy.   See  id.   Of                                                            ___  ___            course,  direct evidence is not required  to prove either the            agreement (which  may be inferred from  circumstances) or the                                         -15-                                          15            defendants' participation in it.   See id.; United  States v.                                               ___ ___  ______________            Moran, 984 F.2d 1299, 1300 (1st Cir. 1993).            _____                      2.  Application                      _______________                      The  evidence more than adequately established that            someone deliberately torched Brothers  Fashions with the  aid            _______            of an accelerant.  Further, there is little question that the            store was  used in an activity  affecting interstate commerce            both  because  it  was  a rental  property,  and  because the            merchandise   purchased  for   resale  moved   in  interstate            commerce.   See United States v. DiSanto, 86 F.3d 1238, 1247-                        ___ _____________    _______            48 (1st Cir. 1996)  (holding that "rental property is  per se                                                                   ___ __            sufficiently connected  to interstate commerce"  for purposes            of    844(i)) (explaining  further  that  the  jurisdictional            element is  met where restaurant received  food supplies that            travelled in interstate commerce); see also Russell v. United                                               ___ ____ _______    ______            States, 471 U.S. 858, 862 (1985).            ______                      The more  troubling question is whether  or not the            evidence sufficiently proved that Santo and Virgilio were the            parties criminally responsible  for the fire.   We note  that            the case  against the  defendants is  largely circumstantial.            Circumstantial evidence does not represent the proposition in            question, but asserts "'something  else, from which the trier            of  fact may  either (i)  reasonably infer  the truth  of the            proposition,  .  . .  or (ii)  at  least reasonably  infer an            increase  in the probability that  the proposition is in fact                                         -16-                                          16            true.'"  U.S. v. Clotida, 892 F.2d 1098, 1104 (1st Cir. 1989)                     ____    _______            (quoting  1 D. Louisell  & C. Mueller,  Federal Evidence   94                                                    ________________            (1977)).    Although   circumstantial  evidence  requires  an            inferential   step  in   its  proof,   there  is   "no  legal            distinction"  between circumstantial  and direct  evidence in            the context of a Rule 29 motion.  Id.; see Olbres, 61 F.3d at                                              ___  ___ ______            971.    We recognize  that  "the government's  proof  may lay            entirely  in  circumstantial  evidence,"  United   States  v.            ________                                  _______________            Valerio,  48 F.3d 58, 63-64 (1st Cir. 1995); we are, however,            _______            "loath to stack inference  upon inference in order  to uphold            the jury's verdict."  Id.                                  ___                      The government produced  direct evidence that Santo            had in his possession the only keys to the store on the night            of the fire, that  the store's back door, rarely  opened, was            open at the time of the fire, and that Brothers  Fashions had            been emptied of  almost all  merchandise at that  time.   The            jury thus could rationally infer that, because only Santo had            the means to  access the  store that evening,  he opened  the            back  door from the inside  of the store  sometime before the            fire.   Santo's exclusive access also  permits the conclusion            that  he  was  involved  with  the  removal  of  the  store's            merchandise before the fire.   The jury could infer  that his            new   and  uncorroborated  testimony   about  looters  was  a            fabrication  to  account  for   the  lost  merchandise  --  a                                         -17-                                          17            fabrication  intended  to  cover  up  his  knowledge  of  and            involvement in its removal.                      The  jury could  conclude that  Santo lied  when he            testified  that he discontinued activating the security alarm            shortly  before the fire because of rats.  From this untruth,            the  jury could  infer  that Santo's  unexpressed reason  for            failing to engage  the alarm  was to nullify  its ability  to            detect both the  removal of  merchandise and the  fire.   The            jury could further find  that Santo lied when he  stated that            he left  the store's back  door secured on  the night of  the            fire and that, in fact,  he left it open for Virgilio  to set            the fire.                      A  jury  could   rationally  infer  that   Virgilio            personally set fire to Brothers Fashions.  Virgilio, the only            apartment tenant injured by the fire, had severe burns on his            ankles, consistent  with  direct and  prolonged  exposure  to            flame;  yet Frederico, who  exited the  building in  the same            manner and  through the  same area  as  claimed by  Virgilio,            testified  that he was not injured in  any manner and that he            did not encounter any  fire until he reached the  sidewalk in            front of  the building,  where he  viewed the  fire emanating            from the  store.  The  jury could  also choose not  to credit            Virgilio's unembellished and confused account of the cause of            the injuries to his face and body and infer that, in fact, he                                         -18-                                          18            suffered those  injuries escaping the store  (perhaps out the            small back door) after lighting the fire.                      The jury  could further  find that Santo  lied when            testifying that: (1) he had nothing to do with the removal of            the store's  contents, (2) he  observed looters at  the store            the morning after the fire, and (3) Boston Gas repaired a gas            leak at the store one month before the fire.   The jury could            also conclude  that  Virgilio lied  about the  source of  his            injuries.   Lies such as these legitimately support a finding            of guilt.  See  United States v. Hadfield, 918  F.2d 987, 999                       ___  _____________    ________            (1st Cir. 1990)  (finding inference of guilt could  have been            bolstered  by defendant's  "tall  tale");  United  States  v.                                                       ______________            Jimenez-Perez,  869 F.2d  9, 11  (1st Cir.  1989) (explaining            _____________            that  the  jury's  disbelief   of  defendants'  story  allows            legitimate inference  "that the fabrication was  all the more            proof of their guilt").                      As  to  motive,  although  the  government  did not            produce   evidence  that  Brothers  Fashions  was  a  failing            business,3  the defendants  clearly  stood to  gain from  the            insurance  proceeds.  Moreover, the jury could have given due            weight to the fact that the defendants did not have insurance            for the first nine months of the store's operation,  obtained            it  only six weeks before  the fire, and  expressed  peculiar            concern about claim payments  and proof of loss requirements.                                            ____________________            3.  Santo did, however, owe $14,000 to his brother, William.                                         -19-                                          19            Further, the fire occurred just four days before the due date            of  the first installment payment, but after the down payment            had already triggered coverage.                      In sum, although not overwhelming, the evidence was            sufficient to prove beyond a  reasonable doubt that (1) Santo            and Virgilio  conspired to  set afire Brothers  Fashions, (2)            Virgilio set the  fire, (3) Santo  assisted Virgilio in  this            task  by  providing access  to the  store  and by  failing to            engage the alarm, and (4) Santo reasonably could foresee that            Virgilio would set the fire in furtherance of the conspiracy.            Although  the evidence does not compel a finding of guilt, it                                            ______            need not "exclude every reasonable hypothesis of innocence or            be wholly  inconsistent with every conclusion  except guilt."            United  States v. Laboy, 909  F.2d 581, 588  (1st Cir. 1990).            ______________    _____            The jury  was "free to choose  among reasonable constructions            of evidence,"  id.,  and  the trial  evidence,  as  a  whole,                           ___            permits a conclusion of guilt beyond a reasonable doubt.  See                                                                      ___            id.  We  cannot say that the jury's verdict  on the arson and            ___            conspiracy counts was irrational.            C.  Mail Fraud            ______________                      Little discussion  of this count is  necessary.  To            prove  mail fraud,  the government  must establish:  "(1) the            defendant's knowing and willing  participation in a scheme or            artifice to defraud with the specific intent to  defraud, and            (2) the use of the mails . . . in furtherance of the scheme."                                         -20-                                          20            Sawyer,  85  F.3d  at 723.    There  was  more than  adequate            ______            evidence  to  prove  that  Santo  and Virgilio  intentionally            agreed  to  collect   insurance  proceeds  fraudulently,  and            together  submitted, by  mail,  a false  insurance claim  for            merchandise they knew had not been lost in the fire.  We will            not disturb the jury's verdict on this count.                                         II.                                         II.                                         ___                                 Motion for New Trial                                 Motion for New Trial                                 ____________________                      The defendants alternatively challenge the district            court's denial of their new trial  motions, claiming that, on            the weight  of the evidence, their  convictions constituted a            miscarriage  of justice.  A district court's power to order a            new  trial is  greater than its  power to grant  a motion for            acquittal.   See United States v. Rothrock, 806 F.2d 318, 318                         ___ _____________    ________            (1st  Cir. 1986).   In  considering a  new trial  motion, the            court  may consider both the  weight of the  evidence and the            credibility of witnesses.  See id. at 321.  Where a new trial                                       ___ ___            motion  is based upon the  weight of the  evidence, the court            may not order a new trial "unless it is quite  clear that the            jury has reached a  seriously erroneous result."  See  id. at                                                              ___  ___            322  (internal quotation  marks and  citations omitted).   We            review  the district court's ruling on a new trial motion for            abuse of discretion.  See id.                                   ___ ___                      True,  the trial  evidence  was in  conflict.   The            jury, however, was not compelled to credit Virgilio's account                                         -21-                                          21            of  the  manner  in  which  he  was  injured,  or  Pablo  and            Frederico's testimony that fire-fighters forcibly entered the            store's  back  door.    The   jury  could  have  agreed  with            Virgilio's   argument  that,   given  the   evident  powerful            explosion in  the store,  his injuries  would have  been more            severe, or worse, he would not have  survived had he been the            arsonist.  The jury was warranted, however, in rejecting this            theory.                      The   strongest   competing  theory   of  innocence            concerns Santo's involvement in  the arson.  Put  simply, the            jury could have  reasonably found that Santo knew  nothing of            the fire  before its  occurrence, but  acted as  an accessory            after  the fact both to  protect Virgilio and  to profit from            fraudulently obtained insurance proceeds.   Santo insisted in            his  testimony, however, that he had the only means of access            to the store on  the night of the  fire and that he left  the            back door secured that evening.  In  contrast, the government            produced direct, credible evidence that the back door was not                                                                      ___            closed at the  time of  the fire; while  the jury might  have            found  that Virgilio opened  the door, or,  perhaps, that the            explosion blew the  door open (although no  witness opined as            such),  given  Santo's  staunch  refusal  to  allow  for  the            possibility  that someone  else may  have had  access to  the            store,  the jury  could  and did  plausibly  find that  Santo            opened the door.   The evidence that Santo obtained insurance                                         -22-                                          22            coverage  and disengaged  the alarm  shortly before  the fire            constitutes  further proof  of  his prior  knowledge of,  and            involvement in, the arson-for-profit scheme.  Finally,  other            than  generally  to  deny  any involvement  with  the  arson,            Santo's  trial testimony  did nothing  to support  the theory            that he was an unwitting dupe in Virgilio's criminal plan.                      The largely  circumstantial nature of the  proof in            this case  gave rise to competing  plausible inferences, some            pointing  to  guilt and  others to  innocence.   The  jury is            charged with choosing between such inferences, see Olbres, 61                                                           ___ ______            F.3d at  972,  and, having  had  the opportunity  to  observe            Santo's trial testimony  and demeanor, it saw  fit to convict            him  on all counts.  While reasonable people could have found            otherwise, "a trial judge  is not a thirteenth juror  who may            set  aside a verdict merely  because he would  have reached a            different  result."  Rothrock, 806  F.2d at 322.   Because we                                 ________            cannot say the jury reached a seriously  erroneous result, we            find  no  abuse  of   discretion  in  the  court's  carefully            considered refusal to grant Santo or Virgilio a new trial.                                         III.                                         III.                                         ____                                   Jury Composition                                   Jury Composition                                   ________________                      For the first time on appeal, Virgilio complains of            the   absence  of  minority   jury  members,   suggesting  an            unconstitutionally disproportionate  ethnic representation in            the  jury  venire.    We consider  Virgilio's  unadorned  and                                         -23-                                          23            perfunctory appellate arguments waived.  See United States v.                                                     ___ _____________            Zannino,  895 F.2d  1, 17  (1st  Cir. 1990)  (explaining that            _______            undeveloped   appellate   arguments   are   deemed   waived).            Moreover,  not only  did he  fail timely  to raise  the issue            below, his assertions on appeal are, in any event, inadequate            to meet his burden on the  issue.  See United States v. Pion,                                               ___ _____________    ____            25  F.3d 18, 22 (1st Cir. 1994) (explaining elements of prima            facie case of unconstitutional disproportionality).4                                           IV.                                         IV.                                         ___                             Other Asserted Trial Errors                             Other Asserted Trial Errors                             ___________________________                      Virgilio contends  that  the prosecutor  asked  two            questions  of  Pablo Ruiz  that  were  calculated to  inflame            ethnic  prejudice in  the jury.   Some  context is  in order.            Pablo  testified that,  although  he received  many years  of            education in  the Dominican  Republic and earned  an advanced            degree in agriculture, he  could not find work in  the United            States because he did not speak English.  When later asked by            the prosecutor how  he could  remember at trial  the time  he            went to bed on  the night of the fire  (some three-and-a-half            years earlier) Pablo replied, "Well, if I can remember what I            studied  during 23 years, I should be able to remember a part            of what happened that night."                                            ____________________            4.  Virgilio  also suggests  that three  of the  jury members            were  biased  because they  had  relatives  in the  insurance            industry.  Because Virgilio failed to raise the  issue below,            and fails adequately to  develop it on appeal, we  decline to            address it.                                         -24-                                          24                      After  further questioning  about the  fire events,            during which Pablo's credibility  was called into question by            various inconsistencies, the prosecutor rekindled the subject            of Pablo's inability to find agricultural work in the  United            States.  The following exchange ensued:                      [The Prosecutor]:  What about California,                      .  . .  you ever  tried to  get a  job in                      agriculture in California?                      [Court   overrules   the  objection   and                      directs the witness to answer yes or no]                      [Pablo Ruiz]:  No.                      [The Prosecutor]:   What about Texas, did                      you ever --                      [Court sustains objection].5                      In  its post-trial  order  denying  the  defendants            motions for acquittal and new trial, the district court found            that "the  now disputed  cross-examination of Pablo  Ruiz was            proper,  did not constitute a racist appeal to the jury, and,            when viewed in context,  was not material in any event."   We            agree.   We  have  warned  that  "courts  must  not  tolerate            prosecutors' efforts  gratuitously to inject issues like race            and  ethnicity  into  criminal  trials."   United  States  v.                                                       ______________            Saccoccia, 58  F.3d 754, 774  (1st Cir. 1995),  cert. denied,            _________                                       _____ ______            116 S. Ct. 1322 (1996).  To the extent the disputed questions            here  unnecessarily  (albeit  marginally)  invited  ethnic or            cultural prejudice, we strongly disapprove.  While,  however,                                            ____________________            5.  Defense counsel did not press for any further redress.                                         -25-                                          25            the  inquiries  may have  been  of  borderline relevance  and            materiality,   it  was  Pablo   who  initially   offered  the            explanation that his inability to speak English precluded his            employment in  the field  for  which he  was most  qualified.            Under  the circumstances of this case, we cannot say that the            prosecutor impermissibly  injected into  the trial  a harmful            appeal  to any ethnic  bias in the  jury by asking  these two            questions.  See id.6                        ___ ___                      Virgilio also claims that the prosecutor frequently            "bellowed offensively at defense testimony" and "screamed  at            the jury with totally inappropriate accompanying facial moues            and  flailing gesticulation."    Virgilio did  not raise  any            objection to the prosecutor's  style or manner at trial.   In            its post-trial  order, the district court  found that, "while            the prosecutor's closing argument was loudly and passionately            delivered,  it  did  not  exceed the  bounds  of  propriety."            Having failed on appeal to  develop his argument or  explain,            with any detail, how  the prosecutor's conduct prejudiced the            trial, Virgilio cannot prevail on this challenge.7                                            ____________________            6.  We also note that the district court carefully instructed            the jury, at some  length, that it must not draw  any adverse            inference from  the fact  that the  defendants were  from the            Dominican Republic and were not native English speakers.            7.  To the  extent Virgilio suggests on appeal that his trial            counsel rendered ineffective  representation, that  challenge            is  not  properly  before us.    United  States v.  Martinez-                                             ______________     _________            Martinez, 69 F.3d 1215, 1225 (1st Cir. 1995) (explaining that            ________            an ineffective  assistance of counsel claim  on direct appeal            will not  lie absent a sufficiently  developed record), cert.                                                                    _____                                         -26-                                          26                                          V.                                          V.                                          __             18 U.S.C.   844(h)(1): Use of Fire to Commit Federal Felony             18 U.S.C.   844(h)(1): Use of Fire to Commit Federal Felony             ___________________________________________________________                      The defendants also challenge their convictions and            sentences under  18 U.S.C.    844(h)(1),  which provides,  in            relevant part: "Whoever  . . . uses  fire or an  explosive to            commit any [federal] felony  . . . shall, in addition  to the            punishment  provided   for  such  felony,  be   sentenced  to            imprisonment for 5 years but  not more than 15 years. .  . ."            The indictment  charged Santo and Virgilio with using fire to            commit  mail fraud,  a violation  of 18  U.S.C.   1341.   The            defendants  claim,  however, that  "fire"  was  not used  "to            commit" mail fraud, but rather, the "mailing of articles" was            used to commit mail fraud.   They contend that fire  may have            been used  to commit the arson,  "but it was not  the letter,                                     _____            envelope  or stamp,  or  handwriting/printing/typing used  to            commit  mail fraud."  In the past, we have implicitly assumed            the  legal conclusion  that defendants  now challenge.   See,                                                                     ___            e.g.,  United States v. Lombardi,  5 F.3d 568,  569 (1st Cir.            ____   _____________    ________            1993)  (involving   844(h)(1)  conviction for  using  fire to                                            ____________________            denied,  116  S. Ct.  1343 (1996).    Further, to  the extent            ______            Virgilio submits new  evidence in support of  his request for            new  trial, that evidence must be brought to the attention of            the  district court in the first instance, either in a timely            motion  pursuant to  Fed. R.  Crim. P.  33, or  on a  writ of            habeas corpus pursuant to 28 U.S.C.   2255.                                         -27-                                          27            commit mail fraud where defendant arranged arson fraudulently            to secure insurance proceeds).8                      Defendants'  challenge  calls  into   question  the            meaning of the  phrase "uses fire  . . .  to commit  [certain            crimes]."   We have not  previously been presented  with this            issue.   We begin our  analysis with the  statute's language.            See  Bailey v.  United States,  116 S.  Ct. 501,  506 (1995).            ___  ______     _____________            Because  the  word  "use"  is  not  defined  by  statute,  we            "construe it in accord with its ordinary or natural meaning."            Smith v. United States, 508 U.S. 223, 228 (1993); see Bailey,            _____    _____________                            ___ ______            116 S. Ct. at 506.   The word is "variously defined  as '[t]o            convert  to one's  service,' 'to  employ,' 'to  avail oneself            of,'  and 'to  carry out a  purpose or action  by means of.'"            Bailey, 116 S. Ct. at 506  (quoting Smith, 508 U.S. at 228-29            ______                              _____            (internal  quotation  marks  omitted) (citing  Webster's  New            International Dictionary  of  English Language  2806 (2d  ed.            1949) and Black's Law Dictionary 1541 (6th ed. 1990))).                      We think  it plain that the  defendants "used" fire            to commit mail fraud within the meaning of   844(h)(1).9  The                                            ____________________            8.  We also note that the government has frequently charged a              844(h)(1)   offense  in   connection   with   mail   fraud,            specifically  where a  defendant  sought to  secure insurance            proceeds for  property  he had  burned.   See,  e.g.,  United                                                      ___   ____   ______            States v. Lombardi, 5  F.3d 568, 569 (1st Cir.  1993); United            ______    ________                                     ______            States  v. Bennett, 984 F.2d 597, 604 (4th Cir. 1993); United            ______     _______                                     ______            States v. Schriver, 838 F.2d 980, 981 (8th Cir. 1988).            ______    ________            9.  Defendants also challenge the sufficiency of the evidence            underlying  this  count.   For  the  reasons discussed  above            concerning the  arson, conspiracy  and mail fraud  counts, we                                         -28-                                          28            defendants set fire to Brothers Fashions "to carry out" their            scheme to  deceive the insurance company  into making payment            for claimed losses.   Specifically, the fire constituted "the            means"  by  which  the  defendants attempted  to  create  the            appearance  of a legitimate loss of insured items.  While the            defendants also "used" the mails in furtherance of the scheme            to   defraud,  that   does  not   diminish  the   fact  that,            additionally, they "employed" or "availed themselves of" fire            to  effect  their  scheme.    Cf.  Smith,  508  U.S.  at  230                                          __   _____            (explaining that including one  method of "us[ing] a firearm"            does  not   result  in  excluding  others).     Finally,  the            defendants make no argument that the placement and purpose of            the  word  "use"  in  its  statutory  context  undermine  the            applicability of   844(h)(1) here.  See Bailey, 116 S. Ct. at                                                ___ ______            506-07  (considering  disputed  language  in the  context  of                                            ____________________            find  the evidence sufficient to  permit a jury  to find that            Santo and Virgilio used fire to commit mail fraud.                                         -29-                                          29            overall  statutory scheme).  No basis for such an argument is            apparent.10                      In  conclusion, we  see  no basis  to overturn  the            defendants'  convictions and  attendant  penalties  under  18            U.S.C.   844(h)(1).                                         VI.                                         VI.                                         ___                            Sentencing Guideline Challenge                            Sentencing Guideline Challenge                            ______________________________                      Defendants  appeal the  court's application  of the            federal arson  guideline.   See  U.S.  Sentencing  Guidelines                                        ___            Manual  [hereinafter "U.S.S.G."]    2K1.4(a)(1)-(4) (1994).11            In  the sentencing context, we review factual determinations,            which must be  supported by a preponderance  of the evidence,            for clear error.  See United States v. McCarthy, 77 F.3d 522,                              ___ _____________    ________            535  (1st Cir.),  cert. denied,  117 S.  Ct. 479  (1996), and                              _____ ______                            ___            cert.  denied, 65 U.S.L.W. 3505 (U.S. Jan. 21, 1997) (No. 96-            _____  ______            5017).    We  review  de  novo  sentencing  issues  involving                                  __  ____            questions of  law, including the applicability  of a relevant                                            ____________________            10.  Moreover, the legislative history  of the Anti-Arson Act            of   1982,  which  amends    844(h)(1)  and  other  statutory            sections,  strongly  suggests Congress'  recognition,  in the            context  of this statutory scheme, that one can "use fire" to            effect a number of criminal purposes,  specifically insurance            fraud.  See H.R. Rep. No. 678, at 2 (1982), reprinted in 1982                    ___                                 _________ __            U.S.C.C.A.N. 2631,  2632 ("Fire is used  extensively not only            for  the  criminal  purposes   of  extortion,  terrorism  and            revenge, but to  conceal other crimes  such as homicide,  and            for fraud against insurance companies.").            11.  Unless  otherwise indicated, all guideline citations are            to the November 1994 version of the United  States Sentencing            Commission Guidelines Manual, applied (without  objection) by            the district court.                                         -30-                                          30            guideline.   See id.   Because the sentencing  court enjoys a                         ___ ___            unique   vantage  point  and   has  "special  competence"  in            assessing  the  "ordinariness"  of   a  case,  we  afford  it            substantial deference in departure decisions, which we review            only for abuse  of discretion.  Koon v. United States, 116 S.                                            ____    _____________            Ct. 2035, 2047 (1st Cir. 1996).                      The  arson  guideline provides  for  different base            offense levels  depending on the circumstances  of the crime.            Subsection (a)(1) of the guideline authorizes the application            of a base offense level of 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;    or    (B)   involved    the                      _________                      destruction or attempted destruction of a                      _________________________________________                      dwelling.                      ________            U.S.S.G.   2K1.4(a)(1)  (emphasis added).   Subsection (a)(2)            authorizes a lower base offense level, 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; (B) involved the destruction                                                    ___________                      or attempted destruction  of a  structure                      _________________________________________                      other than a  dwelling; or (C) endangered                      ______________________         __________                      a dwelling,  or a structure other  than a                      __________                      dwelling.            U.S.S.G.   2K1.4(a)(2) (emphasis added).12                                            ____________________            12.  The   arson   guideline  commentary   further  provides,            "Creating  a  substantial risk  of  death  or serious  bodily            injury includes creating that risk to fire fighters and other            emergency  and law  enforcement personnel  who respond  to or            investigate an offense."  U.S.S.G.   2K1.4, comment. (n.2).                                         -31-                                          31                      As  indicated  by the  underscored language  in the            text  of the arson guideline set forth above, the higher base            offense level (24) is warranted  under either the first prong            of    2K1.4(a)(1) --  the knowing  creation of  a substantial            risk of death or  serious bodily injury (  2K1.4(a)(1)(A)) --            or  the   second  prong  --  the   destruction  or  attempted            destruction of a dwelling  (  2K1.4(a)(1)(B)).  The selection            between  this base offense level and the lower level (20) set            forth in the subsequent section,   2K1.4(a)(2),  depends upon            either  the defendant's mens rea (i.e., whether or not it was                                    ________            "knowing") in  creating the  requisite risk, or  the type  of                                                         __            structure involved,  i.e., dwelling or non-dwelling.   If the            fire  involved a  dwelling,  the selection  between the  base            offense levels depends on whether the defendant destroyed (or            attempted to destroy) it, or merely endangered it.                      The   defendants  offered  two  rationales  to  the            district court in support of an application of a base offense            level  of  20:  (1)  it  is  inconceivable  that  they  would            intentionally create  a substantial risk of  death or serious            bodily injury  to their family members  living directly above            Brothers Fashions; and (2) they did not destroy or attempt to            destroy  a dwelling,  but rather, a  store; and  the upstairs                       ________            residences, only minimally damaged, were  merely "endangered"            incidentally to the arson offense.                                         -32-                                          32                      The government countered that a  base offense level            of 24  was  warranted  because,  under  the  first  prong  of              2K1.4(a)(1), the  defendants had only  to "knowingly,"  not            "intentionally,"  create  the   risk  of  death   or  injury.            Moreover, the government argued, the defendants satisfied the            "knowingly" requirement because they committed the arson at a            time  when they knew residents  were in the  very building to            which  they set fire.  The government argued further that the            second prong  of   2K1.4(a)(1)  warranted a level  24 because            the defendants destroyed or attempted to destroy a dwelling.                      The district court observed that a pivotal question            revolved  around  the  meaning   of  the  word   "knowingly."              2K1.4(a)(1)(A).   The court  opined that the  definition of            "knowingly" was  "a little bit  ambiguous" in the  context of            the arson guideline.  It first observed that, "[o]bjectively,            a  rational person  perhaps should  know that  if he  set the            gasoline fire in the basement,  people living above would  be            injured."   The court,  however, further  stated  that if  it            interpreted   "knowingly"  as  "intentionally,"  it  did  not            believe that Virgilio Ruiz  intentionally put his brothers in            danger; instead, the court observed, "I think subjectively he            may have had the  foolish, but sincere belief that  this fire            could be  started, that everybody could  be quickly evacuated                                         -33-                                          33            or  even  that the  dwelling where  they  lived would  not be            destroyed, just the store would be."13                       The court then concluded:                           Well, I'll tell  you what I'm  going                      to do.  I'm  going to rate this as  a 22.                      There is  a  preamble to  the  guidelines                      which I cannot find right [now] that says                      if  something  doesn't perfectly  fit one                      category or another, it is permissible to                      interpolate.                           For  example, there  is  a law  that                      says if somebody  is between a minor  and                      minimal participant, you  can reduce  the                      role in the offense by 3 rather than 2 or                      4  and, in  [another  case],  I [had]  to                      study the interpolation  language at  the                      beginning of the guidelines.  It seems to                      me this is a [case] which generally falls                      between      the      two     provisions,                      [  2K1.4](a)(1)  and (a)(2),  essentially                      for  the reasons [stated  above].   And I                      think  the  fairest  and  legal[ly]  most                      appropriate   thing   to   do    in   the                      circumstances would be to interpolate and                      I'm going to rate this as a 22.14                                            ____________________            13.  The court appeared to find inapplicable the second prong            of   2K1.4(a)(1)  -- "destruction or attempted destruction of            a dwelling."    2K1.4(a)(1)(B).   The court observed that the            circumstances   of  the   arson  appeared   to  involve   the            destruction of the  store, and the  endangering, but not  the            destruction,  of the dwelling.  In the apparent absence of an            intent  to destroy  the whole  building, the  court impliedly            found   the   "attempted   destruction"    alternative   also            inapplicable.     The   government  challenges   the  factual            underpinnings  of this conclusion.  Finding no clear error at            this juncture, we leave this ruling undisturbed.            14.  The court eventually adjusted Santo's base offense level            downward, from 22 to  20, for being a "minor  participant" in            the offense, see  U.S.S.G.   3B1.2(b),  which, combined  with                         ___            his criminal history category I, yielded a guideline range of            33 to 41 months.  The court declined the government's request            to increase Santo's offense level by two points  for perjury.            The  court selected  a 33-month  prison  term for  the arson,            conspiracy,  and mail  fraud counts,  to be  followed  by the                                         -34-                                          34                      On appeal, the defendants contend that the district            court  erroneously  "interpolated"  when  applying  the arson            guideline.  They  argue that if the  court found inapplicable              2K1.4(a)(1), it should have  affixed the lower base offense            level  provided for  in   2K1.4(a)(2),  rather than  apply an            intermediate  level.   The  government  does  not appeal  the                                                          ___            sentences  as calculated,  but  nonetheless  argues that  the            higher base  offense level  was clearly appropriate  and that            the   defendants,    who   benefitted   from    the   court's            "interpolation" exercise, have no basis for complaint.                      The  district  court's  use  of  "interpolation" to            affix  an intermediate  base  offense level  was an  apparent            attempt  to   invoke  a   paragraph  (now  deleted)   in  the            Introduction  to  the  pre-November  1989  Guidelines Manual.            See,  e.g.,  U.S.S.G.     1A4(b)  (1987).    The   Sentencing            ___   ____            Commission  had  designated  "interpolation"  as  a  form  of            departure  in  which  a  sentencing  court  could  choose  an            intermediate   point   "between  two   adjacent,  numerically            oriented guidelines rules."  Id.  Effective November 1, 1989,                                         ___            however, the Commission deleted that interpolation provision,                                            ____________________            mandatory 60 month consecutive  term for his conviction under            18  U.S.C.    844(h)(1)  (using  fire  to  commit  a  federal            felony), for  a total of 93 months' imprisonment.  Virgilio's            base offense  level remained  at 22,  which, combined  with a            criminal  history   category  I   and  the  added   60  month            consecutive term, yielded a total range of 93-111 months.  On            the  government's recommendation,  the  court affixed  a 108-            month prison term for Virgilio.                                         -35-                                          35            concluding "that  it is  simpler to add  intermediate offense            level  adjustments to the  guidelines where  interpolation is            most likely to be considered."  U.S.S.G. App. C, Amendment 68            (1989).  The Commission also stated, however: "This amendment            is  not intended  to preclude  interpolation in  other cases;            where appropriate, the court will be able to achieve the same            result  by use  of the  regular departure  provisions."   Id.                                                                      ___            Thus, although the issue is somewhat unclear, it appears that            interpolation between guideline rules is permissible where it            could  be  properly  justified  under  the  normal  departure            procedures.                      Assuming  that  the  court essentially  effected  a            downward departure when affixing a base offense level of  22,            we  find  that because  the  district  court failed  to  make            specific findings  on the defendants'  state of mind,  we are            unable to resolve either  the defendants' contention that the            facts warranted a level 20, or the government's argument that            a  level 24  was appropriate.   Our  inability to  settle the            sentencing issue  absent such findings requires  us to remand            the case for  further findings and resentencing.   See United                                                               ___ ______            States  v. Valencia-Lucena,  988 F.2d  228, 234-36  (1st Cir.            ______     _______________            1993)  (remanding for  resentencing  where  sentencing  court            failed  to  make  reasonably  specific   findings  concerning            foreseeability of  drug quantity); see also  United States v.                                               ___ ____  _____________            Olbres, 99 F.3d  28, 30,  32 (1st Cir.  1996) (remanding  for            ______                                         -36-                                          36            clarification  of  sentencing  court's  specific  willfulness            findings in context of downward departure).                      In  United States  v. DiSanto,  86 F.3d  1238, 1256                          _____________     _______            (1st Cir. 1996), we stated:                       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)(2)]  (emphasis                      added).            Whether  or not the defendant  acted "knowingly" calls for an            inquiry into his subjective state of mind when he created the            requisite risk.   See id.  at 1255 (citing  United States  v.                              ___ ___                   _____________            Karlic, 997 F.2d 564, 568-69 (9th Cir. 1993)).  In this case,            ______            the court explored the various possibilities of a "knowledge"            finding, opining first that a rational person would know that            setting such  a fire would cause injury,  then observing that            Virgilio did not "intentionally" put others in danger because            he "may" have had the "foolish but sincere belief" in a swift            evacuation of  the residents.  In the  end, the court did not            make any specific findings on either of the defendants' state            of mind but, instead, resorted to interpolation.                      The   court's  reluctance  to  make  the  requisite            findings may have  been the result of the  somewhat unsettled            definition in  this circuit  of the  term "knowingly"  in the                                         -37-                                          37            arson guideline.  See generally, DiSanto, 86 F.3d at 1256-58.                              ___ _________  _______            In  DiSanto,  we  discussed   at  some  length  the  possible                _______            parameters of the word "knowingly."   See id. at 1256-58.  We                                                  ___ ___            explained  that  "'the hypothetical  knowledge  continuum' is            marked  by 'constructive  knowledge' at  one end  and 'actual            knowledge' at the other."  Id. at 1257 (quoting United States                                       ___                  _____________            v. Spinney, 65 F.3d 231, 236-37 (1st Cir. 1995)).  In between               _______            these extremes lie various "gradations," including "notice of            likelihood"  and "practically  certain."   Id.   Although  we                                                       ___            expressed  our inclination  "to  conclude that  a showing  of            knowledge anywhere along this continuum satisfies application            of    2K1.4(a)(1)(A),"  we  declined to  determine  the exact            level  of knowledge required for the guideline.  Id. at 1257-                                                             ___            58 (finding that government had established the somewhat high            standard of defendant's awareness that the requisite risk was            "practically certain").                      Had the district court here actually found that the            defendants  acted knowingly  when they created  a substantial            risk  of death or serious bodily injury to someone other than            themselves,  we likely would  have upheld the  finding as not            clearly  erroneous,  even  under the  stringent  "practically            certain" test.  The  evidence established that the defendants            set  fire to  a  building basement  in the  early hours  of a            winter morning, knowing that the residential units above were            occupied.  "It is difficult to imagine a clearer illustration                                         -38-                                          38            of the knowing  creation of  a substantial risk  of death  or            serious bodily injury."   United States v. Honeycutt,  8 F.3d                                      _____________    _________            785,  787  (11th  Cir.  1993)  (finding  requisite  level  of            knowledge  where defendant, having seen people inside tavern,            threw  a  Molotov  cocktail  at the  outside  corner  of  the            building) (using "practically certain" test).  The sentencing            court,  however,  must make  such  a  finding  in  the  first            instance,  and we will not engage in that initial exercise on            appeal.                      Because  we  remand  this  case  for  findings  and            resentencing, we  think it  necessary to clarify  further the            definition of "knowingly" appearing in subsection (a)(1), but            not (a)(2), of  the arson guideline.   See U.S.S.G.    2K1.4.                                                   ___            The guideline's  structure "clearly suggests that  there must            be  a  meaningful  distinction  between  the  two  sections."            DiSanto, 86 F.3d at 1256.  As we noted in DiSanto, 86 F.3d at            _______                                   _______            1257, the Ninth and Eleventh Circuits have  adopted the Model            Penal Code's definition of "knowingly."15  In those circuits,            "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  bodily  injury was  'practically                                                              ___________                                            ____________________            15.  The Seventh Circuit has also approvingly cited the Model            Penal Code's  definition of knowingly  in this context.   See                                                                      ___            United States v.  Altier, 91  F.3d 953, 957  (7th Cir.  1996)            _____________     ______            (distinguishing "knowingly" from "purposefully").                                         -39-                                          39            certain'  to result from the criminal act."  Karlic, 997 F.2d            _______                                      ______            at 569 (emphasis added); accord Honeycutt, 8 F.3d at 787; see                                     ______ _________                 ___            also Model Penal Code   202(2)(b) (1985).16            ____ ________________                      We agree  with our  sister circuits that  the Model            Penal Code's  definition gives due regard  to the "meaningful            distinction"  between  the   pertinent  guideline   sections.            Indeed,  we have  already held  that a  "practically certain"            finding,  which is akin  to, but something  less than, actual            knowledge,17  satisfies  the   definition  of  "knowingly."              DiSanto,  86 F.3d at 1257-58.  Thus, we adopt the Model Penal            _______            Code absent a contrary guidelines definition.  We acknowledge            our  earlier inclination  to  include all  gradations of  the            knowledge continuum  in this context.   Id. at 1257.   To the                                                    ___            extent, however, that "constructive knowledge"  requires only                                            ____________________            16.  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            ________________            further 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."  Id. at   2.02(7).                     ___            17.  We   have  equated  "actual   knowledge"  with  "certain            knowledge."  Spinney, 65 F.3d at 237.                         _______                                         -40-                                          40            that the defendant either have had a "notice of likelihood"18            or  "should have  known" of  a substantial  risk, see  id. at                                                              ___  ___            1257-58  n.30;  Spinney, 65  F.3d  at  236-37, we  now  think                            _______            something  more is  needed.   For the  purposes of  the arson            guideline,   these    particular   "constructive   knowledge"            formulations  appear  to  establish  only  "recklessness"  or            "negligence," both  insufficient to  trigger the  higher base            offense level.  See DiSanto, 86 F.3d at 1256.                            ___ _______                      On  remand, the  district  court should  articulate            specific findings of each defendant's state of mind regarding            the creation  of the risk.   In order for the  higher offense            level  to apply, the court  certainly need not  find that the            defendants  "purposefully"  or   "intentionally"  created   a            substantial risk of death or  serious bodily injury.  Rather,            the court  need find only  that Virgilio  and Santo  actually            knew that they created such risk, or were aware that the risk            was  practically certain.  If,  on the other  hand, the court            supportably finds  that one or both of them actually believed            that no substantial risk was created under the circumstances,            a  finding of knowledge would not be warranted.  See DiSanto,                                                             ___ _______            86   F.3d  at   1257   n.  29   (citing   Model  Penal   Code              2.02(7)(1985),  which  provides that  a  defendant's actual                                            ____________________            18.  We have  previously characterized this gradation  as "an            enhanced  showing of  constructive  knowledge."   Spinney, 65                                                              _______            F.3d at 237.                                         -41-                                          41            belief  in the  nonexistence  of a  fact precludes  knowledge            finding).                                         VII.                                         VII.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For   the   foregoing   reasons,   we   affirm  the                                                              ______            defendants'  convictions, vacate  their sentences  and remand                                      ______                       ______            for resentencing.                                         -42-                                          42
