
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2090                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                 WILLIAM P. PITRONE,                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                      Coffin and Bownes, Senior Circuit Judges.                              _________________________               Peter                     B.                        Krupp, with whom Lurie & Krupp LLP was on brief, for          appellant.               Nadine                      Pellegrini                              ,                                 Assistant United States Attorney, with whom          Donald  K. Stern,  United  States  Attorney, was  on  brief,  for          appellee.                              _________________________                                    May 22, 1997                              _________________________                    SELYA, Circuit Judge.          examine  a matter of  first impression:   the degree of  scienter          needed for a felony conviction under 16 U.S.C. S 707(b) (1994), a                                           This harlequinade requires us to                             part of  the Migratory  Bird  Treaty Act  (MBTA).   Detecting  no          reversible  error  in  the  district  court's  rejection  of  the          defendant's                      proffered jury instruction or in any other respect, we          affirm the judgment of conviction.          I.  THE STATUTORY SCHEME                    In                       1916,                             the                                 United States and Great Britain (acting for          Canada)  negotiated a  treaty to  protect migratory  birds.   See          Convention for the  Protection of Migratory  Birds in the  United          States and Canada, Aug.  16, 1916, U.S.-Can., 39 Stat. 1702;  see          also S. Rep.  No. 99-445 (1986),  reprinted in 1986  U.S.C.C.A.N.          6113, 6114  (reviewing the MBTA's  historical antecedents).   The          treaty provides  for the  safeguarding of  migratory birds  whose          pilgrimages traverse international  borders.  To effectuate  this          commitment,                    1                                            Congress enacted the MBTA in 1918.  The United States          Department                     of the Interior is charged with administering the MBTA,          see                          16                 U.S.C.                       S                         701                             (1994), and the Secretary has promulgated a web          of             regulations.  The statute and the regulations offer substantial          shelter to migratory birds within the United States.                    This                         case                             pirouettes                                        around a provision of the MBTA which                1The MBTA also  is in service to other treaty  obligations.          See, e.g, Convention  for the Protection  of Migratory Birds  and          Birds                in                   Danger                         of                            Extinction and Their Environment, March 4, 1972,          U.S.-Japan, 25  U.S.T.  3329; Convention  for the  Protection  of          Migratory Birds and  Game Mammals, Feb. 7, 1936, U.S.-Mexico,  56          Stat. 1347.                                          2          criminalizes the taking and selling of migratory birds:                    Whoever,  in violation  of  this  subchapter,                    shall knowingly                           (1) take  by any  manner whatsoever  any                    migratory bird with intent to sell, offer  to                    sell, barter or offer to barter such bird, or                         (2)                             sell,                                   offer for sale, barter or offer                    to barter, any migratory bird shall be guilty                    of  a  felony  and  shall  be  [punished   as                    provided].          16             U.S.C.                    S                      707(b) (1994).  Under this proviso, it is unlawful for          a taxidermist to receive money or compensation in exchange for  a          migratory                    bird                        other                              than from a person who originally provided the          bird and  requested the  taxidermy  services.   See 50  C.F.R.  S          21.24(c)(1), (2)  (1996).   In  other  words, a  taxidermist  may          receive,                   transport, possess, and mount migratory birds for another          person, but he may not sell any migratory birds (mounted or  not)          which he has taken out of the wild.          II.  BACKGROUND                    Following accepted practice, we sketch the facts in the          light most favorable to the jury verdict, consistent with  record          support.                                       See                                             United                              States v. Staula, 80 F.3d 596, 599 (1st Cir.),          cert. denied, 117 S. Ct. 156 (1996); United States v.  Echeverri,          982 F.2d 675, 676 (1st Cir. 1993).                    Defendant-appellant William P. Pitrone is a taxidermist          by             trade                   and                       a huntsman by choice.  Pitrone frequented sportsmen's          shows at which he offered for sale mounted game birds.  In  early          1993, a browser, Chris Giglio, spotted a protected migratory bird          (a             Common                    Eider)                          among                                the birds that Pitrone displayed for sale at                                          3          a            show                 held                      in                        Boston.                                                                 When Giglio began questioning Pitrone about          the Eider,  Pitrone immediately  inquired whether  Giglio was  "a          warden" and,  upon receiving an  assurance that  Giglio was  not,          freely discussed  his  operation and  produced a  business  card.          Giglio suspected  that  Pitrone  was violating  federal  law  and          informed                   the                       Interior Department's Fish and Wildlife Service (FWS)          of his suspicions.                    At the behest  of the FWS, Giglio contacted Pitrone  by          telephone and  arranged to  visit  him at  his home  in  Medford,          Massachusetts.    Once  inside,  Giglio  observed  that   Pitrone          maintained a  large  inventory  of mounted  waterfowl.    Pitrone          declared that all the mounts were for sale.  When Giglio reported          this information  to the  FWS, the  agents smelled  smoke.   They          outfitted Giglio with  cash and a clandestine body recorder,  and          sent               him                   back                       to                          Pitrone's residence in search of fire.  During the          ensuing                  conversation,                               Pitrone volunteered that he had recently been          to             Alaska                    to                      hunt                           Harlequin ducks (a protected species of migratory          bird)                and                    claimed to have bagged 42 of them.  He also said that he          sold               standing mounts for $50 apiece, flying mounts for $60 apiece,          and Harlequin mounts for $75 apiece.                    On                       May                           13,                              1993,                                    Giglio                                           returned to Pitrone's abode, this          time accompanied by an undercover FWS agent.  During this meeting          (which                 Giglio                       surreptitiously recorded), Pitrone crowed that he had          sold the 42  Harlequin mounts for $75  each, and he described  in          colorful                   language the enthusiasm with which decoy carvers clamored          to purchase them.  When asked why Harlequins cost more than other                                          4          mounts, Pitrone replied that the price differential reflected the          additional cost he had  incurred in travelling to Alaska to  hunt          them.                    By the fall of 1995, the FWS had its ducks in a row and          a            federal                    grand                         jury                              returned an eight-count indictment.  At trial,          the              prosecution                         relied,                                 i                                 nter alia, on the testimony of Giglio, FWS          agent Robert Garabedian,  and four of  Pitrone's customers.   One          customer, James Olenick,  told Pitrone in  advance of the  Alaska          hunting                  trip                       that he would be interested in purchasing a Harlequin          duck if Pitrone bagged  one.  Olenick subsequently bought such  a          duck from  Pitrone (a transaction that  formed the basis for  the          count of  conviction).   After  the FWS  investigation  surfaced,          Pitrone contacted Olenick and  suggested that, if approached,  he          should tell the FWS agents that the duck was merely a "leftover,"          implying that Pitrone  gave it to  him as a  gift.  James  Boone,          another                  customer, stated that he had purchased mounts from Pitrone          and had provided him  with a "wish list"  of mounts he sought  to          purchase.  A third customer, Donald Todd, testified that  Pitrone          contacted him after a sale of two mounts and requested that Todd,          if questioned  by the FWS,  tell the agents  that his payment  to          Pitrone had not  been for merchandise  received but for  services          rendered.                                         A                      fourth                             customer, George Anzivino, said Pitrone bragged          that he had sold all the  Harlequin ducks he had shot in  Alaska,          that               the                   hunt                       had                           cost                                him $2400, and that he had recouped the cost          by selling the birds.  Later, Pitrone admonished Anzivino not  to          mention their conversation to anyone.                                          5                    The trial lasted  for six days.   In the end, the  jury          acquitted                    Pitrone on seven counts, but found him guilty on count 2          (the knowing sale of a Harlequin duck).  Following the imposition          of sentence, Pitrone sought refuge in this court.          III.  ANALYSIS                    On appeal,  Pitrone  grouses about  two rulings.    One          complaint implicates the jury instructions and the other  centers          around the admission of evidence.  We discuss these remonstrances          separately.                             A.  The Jury Instructions.                    If  a  party  asserts   that  an  error  infected   the          instructions  given to  a  trial  jury, a  reviewing  court  must          determine if the  instructions "adequately illuminate[d] the  law          applicable to the  controlling issues in the case without  unduly          complicating matters or  misleading the jury."  United States  v.          Destefano                  ,                     59                       F.3d                            1,                               3                                 (1st Cir. 1995).  When, as now, the alleged          error involves the interpretation of the elements of a  statutory          offense,                   it                      poses                           a                             question of law and sparks plenary review.  See          United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997).                    In this instance,  Judge Gertner instructed the  jurors          that, in order to convict on count 2, they must find that Pitrone          acted knowingly.  This  meant, the judge explained, that "he  was          conscious                    and aware of his actions, realized what he was doing and          what  was  happening around  him,  and  did not  act  because  of          ignorance, mistake, or accident."  The government, she added, did          not need "to prove that the defendant knew that his actions  were                                          6          unlawful,"                     but                         he                           "must                                 know within the meaning of the statute that                                                                          t                 that it did not  require the government to prove that  th          he  was  selling a  bird."    Pitrone requested  a  more  lenien          instruction and objected to the instruction actually given on the          ground                                                          e          defendant knew his actions contravened federal law.                    On appeal,  Pitrone widens  the scope  of his  barrage.          While he  renews his claim that  the government should have  been          required to  prove beyond  a reasonable  doubt that  he knew  his          conduct was unlawful  (and, therefore, that the jury should  have          been  so instructed),  he goes  on to  raise a  new and  entirely          different  point:   that the  instruction afforded  the jury  was          defective because it did not require the government to prove that          he knew he was selling a  migratory bird.  We address the  second          claim first.                    Pitrone cannot duck one basic fact:  he did not  object          below to the omission of a specific statement that the government          must               prove                     that                         he                            knew                                 he was selling a migratory bird (as opposed          to a bird, simpliciter).  For all intents and purposes, that ends          the  matter.   We  have been  steadfast  in treating  as  forfeit          objections                     to a judge's charge that might have been, but were not,          raised                 below                       in the approved manner.2  See, e.g., United States v.               2A party who objects to jury instructions in a criminal case          must follow a regime that is  delineated in Fed. R. Crim. P.  30.          The rule provides in pertinent part:                    No party may assign  as error any portion  of                    the charge or omission therefrom unless  that                    party objects thereto before the jury retires                    to consider  its verdict, stating  distinctly                    the                        matter                               to which that party objects and the                                          7          Griffin, 818  F.2d 97, 99-100 (1st  Cir. 1987); United States  v.          Coady, 809 F.2d 119, 123 (1st Cir. 1987); cf. Putnam Resources v.          Pateman,  958 F.2d  448,  456  (1st Cir.  1992)  (holding,  under          substantially identical civil counterpart, that "[s]ilence  after          instructions  .  .  .  typically  constitutes  a  waiver  of  any          objections").                    To be sure, we  still retain the power to grant  relief          under the plain error doctrine, notwithstanding that Pitrone  did          not              preserve                       this claim of error.  Fed. R. Crim. P. 52(b).  Still,          a party who  asks an appellate tribunal  to correct an error  not          preserved at the  trial level must demonstrate "(1) `error,'  (2)          that is  `plain,'  and (3)  that `affects  substantial  rights.'"          Johnson v. United States, ___ S. Ct. ___, ___ (U.S. May 12, 1997)          [No. 96-203, slip op. at 7] (quoting United States v. Olano,  507          U.S.               725,                    732                       (1993)).                                                                 Even then, the appellate court may exercise          its  discretion to correct  a forfeited error  only if the  error          seriously  impairs  the  integrity  and  basic  fairness  of  the          proceedings.  See id.  Given these criteria, it is apparent  that          "the               plain                     error hurdle is high."  United States v. Hunnewell, 891          F.2d 955, 956 (1st Cir. 1989).  Pitrone cannot surmount it here.                    For present  purposes, we need  look only  to the  last          element of the test.  In the district court, there was never  any          issue about whether a Harlequin duck was a migratory bird (it is)          or whether Pitrone,  a nimrod of note,  knew as much (it  strains          credulity                    to                       suggest                              he                                 did not).  In this regard, the instructions                    grounds of the objection.                                          8          that he  proposed are  telling; he beseeched  the lower court  to          charge                 the                     jury                         "that                               the government must prove beyond a reasonable          doubt:  first, that Mr. Pitrone actually knew that he was selling          the migratory  birds, as  opposed to  giving away  the birds  and          charging                   only                        for                           his                               mounting services (emphasis supplied)."  This          proposed instruction  assumes that  Pitrone knew  he was  selling          migratory                    birds,                          as                             demonstrated by the repeated use of the article          "the."  And, moreover, Pitrone has limned no plausible basis  for          believing that he lacked such knowledge.                    Where,                           as                              here,                                   a                                     defendant criticizes a jury instruction          on a  ground not  raised below, and  does so on  the basis of  an          alleged error induced at least in part by his implied concessions          before the  district court,  it will  be infrequent  that he  can          satisfy the  fourth furcula  of the plain  error test.   In  this          respect,                   the                       case at hand is not a rara avis.  Thus, the omission,          if error  at all    a matter on which we  do not opine   did  not          "seriously affect the  fundamental fairness" of Pitrone's  trial,          Griffin,  818 F.2d at  100, and, thus,  did not constitute  plain          error.   See  Johnson,  ___  S.  Ct. at  ___  [slip  op.  at  11]          (suggesting, in  words appropriate here,  that "it  would be  the          reversal of a conviction such  as this" which would run afoul  of          fundamental fairness).                    We turn next to the compass of the term "knowingly"  as          that               word                    is                       used in MBTA S 707(b).  The statute proscribes, inter          alia, "knowingly" taking migratory birds with intent to sell them          and              "knowingly" selling such birds.  Since the meaning of the word                                          9          "knowingly"                      is neither precisely defined in the statute itself nor          immediately obvious in  the statutory context,  we resort to  the          legislative                      history.                                                             See                                  United States v. Ven-Fuel, Inc., 758 F.2d          741, 757-58 (1st Cir. 1985).                    For                        most                             of                               its                                   existence, the MBTA contained no scienter          requirement whatever; its felony provision, like its  misdemeanor          provision,                     16 U.S.C. S 707(a), imposed strict liability.  See Pub.          L. 86-732, 40  Stat. 756 (1960) (amended  by Pub. L. 99-645,  100          Stat. 3590 (1986)).  But in 1985, the Sixth Circuit held that the          felony provision   section 707(b)   ran afoul of the  Due Process          Clause                 on                    this                        account.                                                                   See United States v. Wulff, 758 F.2d 1121,          1125               (6th                    Cir.                        1985).                                                               The following year, Congress amended section          707(b)                 to                    meet the Wulff court's objection by including an element          of scienter, that is, by adding the modifier "knowingly."  See S.          Rep. 99-445, supra, 1986 U.S.C.C.A.N. at 6128.  Congress  clearly          indicated that, by inserting this word, it sought only to require          proof that "the defendant knew (1) that his actions constituted a          taking, sale, barter, or offer to sell or barter, as the case may          be,              and                  (2)                     that                          the                              item so taken, sold, or bartered was a bird or          portion thereof."  Id.   At the same time, Congress warned  that:          "It              is                 not                     intended that proof be required that the defendant knew          the  taking,  sale,  barter  or offer  was  a  violation  of  the          subchapter,                      nor that he know the particular bird was listed in the          various international treaties implemented by this Act."  Id.                    Against                            this                                 backdrop, Pitrone's assertion that the word          "knowingly" modifies the phrase "in violation of this subchapter"                                         10          and, thus, requires proof of specific intent in order to convict,          is unconvincing.  When it is  necessary to go beyond the text  in          construing                     criminal statutes, meaning ordinarily should be derived          by "draw[ing] upon context,  including the statute's purpose  and          various background legal principles, to determine which states of          mind accompany which particular elements of the offense."  United          States  v.  Gendron, 18  F.3d  955, 958  (1st  Cir. 1993).    The          appellant's                      interpretatio                                 n of the MBTA flouts this precept:  it not          only  involves a  forced  reading of  the  text but  also  flatly          contradicts  Congress's  stated  purpose.    We  are,  therefore,          disinclined to swallow it.                    We find encouragement for this disinclination in United          States                                v.                    Flores                        ,                           753                               F.2d 1499 (9th Cir. 1985), a case which posed          an analogous  interpretive problem.   Determining  that the  word          "knowingly" in 18 U.S.C. S 922(e) modified the phrase  describing          the              prohibited                         act                                                                                       delivering or causing to be delivered firearms          to any common carrier without written notice   the Ninth  Circuit          read the language naturally and held that the government need not          prove a specific intent to violate the statute.  See id. at 1505.          In reaching this  conclusion, the court stressed "the absence  of          words  such as  `intent'  and  `willfully,'  which  traditionally          accompany specific  intent  crimes" and  the  lack of  any  other          indication                     that                         Congress                                  purposed to require an element of specific          intent.                                     Id.                                                                  The                           instant case is a supercharged version of Flores;          in drafting the  amendment to section  707(b), Congress not  only          omitted language indicating that it specifically intended to make                                         11          specific  intent  an  element of  the  offense  but  also  stated          positively that it did not intend to do so.                    Pitrone tries  to make an  end run  around the  lessons          taught by  the legislative history,  citing a  plethora of  cases          headed                 by                    Rat                      zlaf v. United States, 510 U.S. 135 (1994).  But this          argument overlooks (or, at least, fails to acknowledge) that  the          element                  of                     willful intent and the element of scienter are birds of          a very different feather:  the cases which the appellant includes          in             this                  string                        citation                                 stand for the proposition that knowledge of          the              unlawfulness of one's conduct is required when the statutorily          prohibited                     behavior                             includes an element of willful intent.  See id.          at 143-49; United States v.  Jain, 93 F.3d 436, 439-41 (8th  Cir.          1996);                 United                       States v. Sanchez-Corcino, 85 F.3d 549, 552-54 (11th          Cir. 1996); United States v. Curran, 20 F.3d 560, 566-71 (3d Cir.          1994).                    Here,  the  proposition  is  beside  the  point.    The          applicable statute, section  707(b), requires  the government  to          prove                a                  knowing act, but it does not require proof of willfulness.          That makes  a world  of difference.   "Knowingly"  has a  meaning          distinct                   from                       "willfully" in the lexicon of statutory construction.          See United States v. Hayden, 64 F.3d 126, 129-30 (3d Cir.  1995).          Thus, courts consistently have rejected arguments   as we do here            which posit that the term "knowingly," standing alone, requires          the prosecution to show that the defendant knew his behavior  was          unlawful, instead interpreting "knowingly"    as we do here    to          require no more than that "the defendant know he was engaging  in                                         12          the prohibited conduct."  Id. at 130 (collecting cases);           United States    Sherbondy, 865 F.2d 996, 1001-03 (9th Cir. 1988)          (explaining                                                                   see also                        v.                        that  "knowingly"  does  not  ordinarily  include  a          requirement                      that the defendant have had knowledge of the law).  By          contrast, "willfully"   a word which is conspicuously absent from          section                  707(b)   sometimes has been construed to require a showing          that the defendant knew  his behavior transgressed the law.   See          Ratzlaf, 510 U.S. at  141-43.  We decline  either to read into  a          statute a  word that Congress purposely  omitted, or, on our  own          initiative,                      to                        rewrite                                Congress's language by ascribing to one word          a meaning traditionally reserved for a different word.                    Pitrone                            also                                 floats a bareboned constitutional argument.          Citing                 Wulff                     ,                       758                           F.2d                                at 1124-25, he contends that section 707(b),          read  as we  propose to  read  it, remains  subject to  the  same          constitutional                         infirmity                                  which prompted the Sixth Circuit to strike          down  the earlier  (unamended) version.   This  argument was  not          advanced below, and for that reason, it will not fly here.3   See          Teamsters, Chauffeurs, Warehousemen & Helpers Union v.  Superline          Transp.                  Co.,                       953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is          settled                  in                     this circuit, it is that, absent the most extraordinary          circumstances, legal  theories not raised  squarely in the  lower          court cannot be broached for the first time on appeal.").                                                                 3               In                   all                       events, the argument has little substance.  The Wulff          court  declared  that,  in  order  for  section  707(b)  to  pass          constitutional muster, "Congress must require the prosecution  to          prove                the                    defendant acted with some degree of scienter."  758 F.2d          at 1125.  But Congress repaired this defect, and there is nothing          in the Constitution which requires the government to prove, in  a          case like this, that the defendant knew his conduct was unlawful.                                         13                    Finally,  the appellant  hawks  the importance  of  the          Supreme                  Court's                         decision                                  in Liparota v. United States, 471 U.S. 419          (1985).                                     There, the Court held that, when prosecuting a person for          violation  of  the statute  governing  food  stamp  fraud  (which          prohibits  the  "knowing"  acquisition  of  food  stamps  in   an          unauthorized manner, 7 U.S.C. S 2024(b)(1)), the government  must          prove the defendant knew that his conduct was unauthorized.   481          U.S.               at                  433.                        We think Liparota is distinguishable.  First, unlike          in this case, the legislative history of the provision before the          Liparota Court shed no light  on what Congress meant by the  term          "knowing violation."  See id. at 424-25.  Second, the Food  Stamp          Act covers a variegated array of conduct undertaken by  literally          millions of  people, many of whom  are unencumbered by a  working          knowledge                    of                       the regulatory labyrinth.  These facts, together with          the sheer volume of food stamp transactions which occur, create a          high               probability                          of                             unauthorized, yet innocent, transfers.  See id.          at  426.    Thus,  the  Liparota  Court  sought  to  prevent  the          criminalization of a wide range of innocent behavior.  See id.                    In sharp  contrast, the  felony provision  of the  MBTA          prohibits                    conduct that occurs on a much smaller scale and which is          much more  likely to be  committed by  individuals familiar  with          existing  protections   for  migratory   birds  (e.g.,   hunters,          taxidermists,  scientists,  or  artisans  whose  trades   require          knowledge                    of                      birds'                             habits and attributes).  Consequently, applying          the              scienter                      requirement                                  in the manner described in the legislative          history of section 707(b) does  not pose the same type of  threat                                         14          that prompted the Liparota Court to condition a conviction  under          the              Food                   Stamp Act upon proof that the defendant knew his behavior          was unauthorized by law.                    Broadly speaking,  it is within  the discretion of  the          legislature to define  the elements of  statutory offenses.   See          United States v. Hudson,  11 U.S. (7 Cranch)  32, 34 (1812).   In          drafting                   the                       MBTA                           and                               thereafter in amending it, Congress carefully          defined the elements of the offense created under section 707(b).          In             doing                   so,                       it                         left                              no                                 room for ignorance of the law as a defense.          Thus, we  are  constrained to  give  section 707(b)  its  natural          reading, under which the word "knowingly" applies to the putative          offender's actions rather than to the legality of those  actions.          This               reading                       comports with the plain meaning of the MBTA, with the          usual  canons of  statutory  construction,  and  with  Congress's          revealed intent.  Since the district court's instructions to  the          jury               followed                        this                            path,                                  we cannot honor the appellant's assignment          of error.                                  B.  The Evidence.                    Pitrone also protests the district court's admission of          two              types                    of                       evidence, namely, (1) evidence anent his hunting trip          to Alaska, and (2) evidence anent his sales (and intended  future          sales)                 of                    birds.  In each instance, he maintains that the evidence          ought                to                   have                       been                            barred as impermissible character evidence.4  We                                                                 4               Pitrone                       premises                                this exhortation on Fed. R. Evid. 404(b) and          403.  Rule 404(b) provides in pertinent part:                    Evidence of other crimes, wrongs, or acts  is                    not admissible to  prove the  character of  a                                         15          review rulings  admitting  or  excluding evidence  for  abuse  of          discretion.  See United States v. Rivera-Gomez, 67 F.3d 993,  997          (1st Cir. 1995).  When Rule  403 balancing is in issue, we  grant          especially                     wide                         latitude                                  to the district court's informed judgment.          See id.                    Here,                          both                               aspects                                      of                                         the evidentiary squabble originally          arose                in                  pretrial                           proceedings.  Pitrone filed a motion in limine to          exclude evidence relating to his journey to Alaska and his  boast          that he killed more than 40 Harlequin ducks on that trip (selling          the skins for $50 each and the mounts for $75 each).   He filed a          separate motion to exclude evidence of sales of birds other  than          those                which                      were the subject of specific counts in the indictment.          The district  court  denied  both motions,  concluding  that  the          challenged                     proffers not only provided direct evidence of the crime          charged                  but                     also                          furnished relevant extrinsic evidence illustrating          Pitrone's intent to hunt and sell the Harlequins, as well as  the          existence of  a plan  to  do so.   The  prosecution  subsequently                    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 . . . .          In turn, Rule 403 provides:                    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.                                         16          introduced                     the                        evidence                                 at trial and argued its significance to the                     ssuming,                              wit                      were properly preserved,           jury.                    A           hout deciding, that Pitrone's objections to          the              evidence                                                cf. Conway v. Electro Switch          Corp., 825 F.2d 593, 596 n.1 (1st Cir. 1987), his claim of  error          nonetheless is  unavailing.   In  the  count of  conviction,  the          government charged Pitrone  with the knowing sale of a  Harlequin          duck.  Testimony regarding his Alaskan sojourn and his subsequent          sales                of                   Harlequin                            skins                                  and mounts comprises direct evidence which          helps to  establish the crime charged.   Because the evidence  is          directly probative of the crime, Pitrone's contention that it  is          impermissible                       "other act" evidence is well wide of the mark.  See,          e.g., United States v.  Hadfield, 918 F.2d 987, 994-95 (1st  Cir.          1990).                    The                        evidence                                 of                                   past                                        (and future intended) sales of birds             consisting largely  of statements made  by Pitrone during  the          course                 of                   commercial                              transactions   is plainly relevant to illumine          Pitrone's intent even  though these sales are not themselves  the          basis of  the charges preferred against  him.  Since Rule  404(b)          evidence appropriately can  be admitted for such a purpose,  see,          e.g., United States v. Bank of  New Eng., 821 F.2d 844, 858  (1st          Cir.  1987),  the appellant's  claim  that  it  is  impermissible          character evidence founders.5               5If more were needed   and  we doubt that it is   we note in          passing that the evidence  of past sales was imbricated with  the          charged crime and helped to put that crime into context.  On that          basis, too,  the evidence  was relevant.   See  United States  v.          DiSanto, 86 F.3d 1238, 1252-53 (1st Cir. 1996), cert. denied, 117                                         17                    Moving  to  Rule  403,  we  do  not  find  that  either                                  evidence is prejudicial   if the truth be          evidentiary line carried with it an unacceptable risk of improper          prejudice.                                          Virtually                               all          told,                that                     is                       almost                              always why the proponent seeks to introduce it            but it is only unfair prejudice against which the law protects.          See                          Rivera-Go                      mez, 67 F.3d at 997 (collecting cases); United States          v. Rodriguez-Estrada,  877  F.2d  153, 155-56  (1st  Cir.  1989).          Evidence should  function to "help  the jury reconstruct  earlier          events and then apportion guilt or responsibility as the law  may          require" and  "Rule 403 exists  to facilitate  that process,  not          impede it."  Rivera-Gomez, 67 F.3d at 998.  Because the  judicial          officer who  presides at a trial  has a unique perspective  which          enables her to make assessments of this kind knowledgeably, "only          rarely                                                     and                      in                         extraordinarily compelling circumstances   will we,          from  the vista of  a cold appellate  record, reverse a  district          court's on-the-spot judgment concerning the relative weighing  of          probative                    value and unfair effect."  Freeman v. Package Mach. Co.,          865 F.2d 1331, 1340 (1st Cir. 1988).                    In                       the                           case                                at bar, these tenets augur favorably for the          lower                court's rulings.  Under the terms of the MBTA, Pitrone could          not knowingly sell a Harlequin duck.  He could, however, sell his          services  as a  taxidermist.   Evidence  of  the sale  prices  of          Harlequin duck skins and mounts, as contrasted with the prices of          other                bird                     mounts                           sold                                by him, laid the foundation for a permissive          S. Ct. 1109 (1997); United States v. Rodriguez-Estrada, 877  F.2d          153, 155 (1st Cir. 1989).                                         18          inference that the higher price for a Harlequin duck reflected an          actual charge for the bird, above and beyond a reasonable  charge          for taxidermy services.  Evidence of the trip to Alaska helped to          explain  the  reason  for the  price  differential  and  to  show          opportunity.  The evidence  of Pitrone's statements provided  the          jury with valuable insights into Pitrone's motives.  All in  all,          the challenged evidence possessed considerable probative value.                    The opposite pan of the scale is nearly empty.  For one          thing,  the appellant  has not  credibly shown  how the  evidence          threatened                     to trigger any of the dangers that Rule 403 bids courts          to             monitor.                                            For                          another                                  thing, there is nothing in the record that          leads                us                   to                     believe                             that                                  the jury, which acquitted Pitrone on seven          other counts, was improperly influenced by this evidence.   Given          the              easily                     discernible asymmetry   substantial probative value and          negligible risk  of unfairly prejudicial effects    we descry  no          abuse  of discretion  in the  district court's  admission of  the          evidence.          IV.  CONCLUSION                    We                       need                            go                               no further.  From aught that appears, Pitrone          was tried fairly and convicted lawfully in a proceeding untainted          by reversible error.  No more is exigible.          Affirmed.                                         19
