

November 3, 1995  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1094

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     LUIS RAUL RIVERA-GOMEZ,

                      Defendant, Appellant.

                                             

                           ERRATA SHEET                                     ERRATA SHEET

     The opinion of  this court  issued on October  12, 1995,  is
corrected as follows:

On  page  7, line  20,  change "is  only  admissible" to  "may be
excluded"

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1094

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     LUIS RAUL RIVERA-GOMEZ,

                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Hector M. Laffitte, U.S. District Judge]                                                                 

                                             

                              Before

                 Selya and Stahl, Circuit Judges,                                                          

                   and Gorton,* District Judge.                                                        

                                             

     Carlos   A.   Vazquez-Alvarez,   Assistant  Federal   Public                                            
Defender,  with  whom  Benicio  Sanchez  Rivera,  Federal  Public                                                         
Defender, was on brief, for appellant.
      Jose  A. Quiles-Espinosa,  Senior Litigation  Counsel, with                                        
whom Guillermo Gil, United States Attorney, and Edwin O. Vazquez,                                                                          
Assistant United States Attorney,  were on brief, for  the United
States.

                                             

                         October 12, 1995

                                             

               
*Of the District of Massachusetts, sitting by designation.

          SELYA,  Circuit Judge.    A  jury convicted  defendant-                    SELYA,  Circuit Judge.                                         

appellant Luis  Raul Rivera-Gomez on three  counts of carjacking,

18 U.S.C.   2119, and three counts of aiding and abetting the use

and carriage  of firearms during  and in relation  to a crime  of

violence, 18  U.S.C.    2(a), 924(c).   In terms of  prison time,

the  trial  judge   imposed  concurrent  180-month  incarcerative

sentences for the first two carjacking counts, a sentence of life

imprisonment for  the third carjacking, and  concurrent sentences

of five years, to  run consecutively to the other  sentences, for

the  firearms  counts.   This  appeal  challenges an  evidentiary

ruling, a  case management  ruling, and the  constitutionality of

the life sentence.

I. BACKGROUND          I. BACKGROUND

          The evidence adduced at  trial involved three  separate

carjacking  incidents.    We   sketch  the  facts  as  the   jury

warrantably  could have  found  them,  resolving all  evidentiary

conflicts in  the government's favor and  adopting all reasonable

inferences therefrom that support the verdict.

          The first carjacking occurred on December 3, 1993.  The

victim, Cesar Correa  Rivera (Correa), had driven  a friend home.

While they  were  parked  outside  her abode,  a  vehicle  nudged

Correa's car.  Not knowing the vehicle or trusting its occupants,

Correa  tried to flee.   After a  brief chase, the  rogue vehicle

blocked Correa's path  and two  armed men alighted.   One of  the

men,  later identified  as Jose  Roman Hernandez  (Roman), struck

Correa on  the head twice  with his revolver  and ordered him  to

                                3

relinquish  his  valuables.   Meanwhile,  the  second man,  later

identified as Rivera-Gomez, threatened  Correa's companion with a

gun.  Appellant eventually ordered the victims to kneel and stare

at the ground.   Roman then departed in the  carjackers' original

vehicle, leaving appellant to drive Correa's automobile.

          Four days  later, the  same two marauders  assaulted an

elderly retired couple, Rufino  Garcia Maldonado (Garcia) and his

wife, Clara.  The  assault occurred when Clara left  the couple's

car  to  open the  gate  leading into  their  driveway.   One man

threatened her with  a weapon and forced her to the ground, while

the second man pointed a gun at Garcia's head, ordered him out of

the car  (a red  Suzuki), and  relieved him of  his wallet.   The

robber then struck  Garcia on  the head, and  he and his  comrade

drove off in the Suzuki.

          A short time later, the Garcias' Suzuki, with appellant

at  the wheel, pulled alongside a Mazda RX-7 operated by Reynaldo

Luciano Rivera (Luciano).  Roman, then a passenger in the Suzuki,

pointed a gun  at Luciano and ordered him to  freeze.  Instead of

submitting  to  this  minatory  demand, Luciano  stepped  on  the

accelerator.   At  the same  time, his  companion, Dalia  Hidalgo

Garcia  (Hidalgo), leapt to the  ground.  The  predators fired in

the  direction of the escaping  car, and, when  it stopped, Roman

shot  Luciano  in  the  head at  point-blank  range.   Apparently

realizing that they had  killed the young man, Roman  and Rivera-

Gomez fled the scene without expropriating the Mazda.

          Soon  thereafter, a  homicide  detective spotted  a red

                                4

Suzuki  in  the vicinity  and, having  received  a report  of the

latest incident, circled  to pursue it.   After a Hollywood-style

chase  involving  several police  vehicles,  the  Suzuki crashed.

Appellant exited through the driver's door, and Roman exited from

the passenger's side.  The authorities quickly apprehended them.

          On January  5, 1994, a  federal grand jury  charged the

two  men  with three  counts of  carjacking  and three  counts of

aiding and abetting each other in  the use of firearms during and

in relation to  crimes of violence.   Count 3  of the  indictment

featured an allegation concerning  Luciano's death.  Though Roman

entered a plea, appellant maintained  his innocence.  Following a

three-day trial, a jury found appellant guilty on all six counts.

This appeal ensued.

II.  DISCUSSION          II.  DISCUSSION

          Appellant advances three assignments  of error.  First,

he maintains that the district court  erred in admitting evidence

of Luciano's death.  Second, he argues that the court should have

declared  a mistrial  when a  prosecution witness  stated in  the

jury's  presence  that Roman  had  pleaded guilty.    Finally, he

suggests  that his life sentence punishes him for an offense with

which  he  was  never  charged  (Luciano's  murder),  and,  thus,

transgresses the  Constitution.  We address  these reputed errors

sequentially.

           A.  Admission of Evidence of Victim's Death.                     A.  Admission of Evidence of Victim's Death.                                                                

          Appellant,   who  unsuccessfully  moved  in  limine  to                                                                       

forestall the prosecution from showing that Luciano was killed in

                                5

the course  of the third incident, asseverates  that the victim's

death was irrelevant to  the question of guilt  on the charge  of

attempted carjacking,  and that no evidence  concerning the death

should have been admitted.  Our study of this asseveration begins

with  the language of  the carjacking statute,  which provided on

the date of appellant's offense:

               Whoever,  possessing a  firearm  .  .  .
          takes   a  motor   vehicle   that  has   been
          transported,   shipped,    or   received   in
          interstate  or  foreign  commerce   from  the
          person or  presence of  another by  force and
          violence  or by intimidation,  or attempts to
          do so, shall -
                    (1)  be fined  under this  title or
          imprisoned not more than 15 years, or both,
                    (2) if serious bodily  injury . . .
          results,  be   fined  under  this   title  or
          imprisoned not  more than 25 years,  or both,
          and
                    (3)  if  death  results,  be  fined
          under this title or imprisoned for any number
          of years up to life, or both.

18 U.S.C.   2119 (Supp. V 1993).

          Appellant  asserts that  the district  court mistakenly

thought that  the victim's  death constituted  an element of  the

offense, and allowed the evidence on that basis.  This was error,

he  maintains,  because  subsection   (3),  the  "death  results"

provision,  is not  an element  of the  offense, but,  rather, is

simply a  sentencing enhancement mechanism.   Thus, he concludes,

the victim's death had no bearing upon the determination of guilt

for the underlying offense,  and should not have been  brought to

the jury's attention.

          As  an  inauguratory  matter,  we  disavow  appellant's

assertion  that  the  district  court held  the  "death  results"

                                6

provision  to be a separate element of the offense of carjacking.

As we parse the  version of the statute under  which Rivera-Gomez

was  convicted, the crime of carjacking  had four elements, viz.,                                                                          

(1) taking (or attempting to take) from the person or presence of

another,  (2) by force,  violence, or  intimidation, (3)  a motor

vehicle   previously  transported,   shipped,   or  received   in

interstate or foreign  commerce, (4)  while using  or carrying  a

firearm.1   See United  States v.  Johnson, 32  F.3d 82,  85 (4th                                                    

Cir.),  cert. denied,  115 S.  Ct. 650  (1994); United  States v.                                                                        

Harris, 25 F.3d  1275, 1279 (5th Cir.)  cert. denied, 115  S. Ct.                                                              

458 (1994); United States  v. Singleton, 16 F.3d 1419,  1422 (5th                                                 

Cir. 1994).

          The  district  court appears  to  have understood  this

structure,  and  the  record  suggests  that  the court  did  not

consider  the death  of a  victim to  be a  further (independent)

element  of the carjacking offense.  Judge Laffitte stated at the

pretrial hearing  on the motion  in limine that the  death of the                                                    

victim was  an offense element "not  as such," but  only as "part

and parcel" of the "force and violence" element of the carjacking

charge.  In the same vein, the judge's jury instructions outlined

                                                  

     1Section 2119 has  since been  amended.  In  the 1994  crime
bill, Congress substituted  the phrase "with the  intent to cause
death  or  serious  bodily   harm"  for  the  language  requiring
possession  of  a firearm.   See  Violent  Crime Control  and Law                                          
Enforcement Act of 1994,   60003(a)(14), Pub. L. No. 103-322, 108
Stat. 1796, 1970.  Thus, the new law leaves the offense with four
elements,  but  changes  the focus  of  the  fourth element  from
weaponry to intention, requiring  that the prosecution prove that
the defendant perpetrated  the crime with the specific  intent of
causing death or serious bodily harm.

                                7

the four essential elements of carjacking described above, saying

nothing  about   "death  results"   as  an   independent  element

applicable to count 3.

          In  our  view,  then,  the  court's  admission  of  the

evidence  derived  not  from  a misapprehension  that  the  death

constituted an  independent offense element, but,  rather, from a

belief  that  evidence of  Luciano's  death helped  to  prove the

essential  "force  and  violence"  element.   The  question  that

remains is whether the court blundered in allowing the government

to present the challenged evidence as a means of proving that the

carjackers employed force and violence  in carrying out the third

incident.  We think not.

          It is difficult to conceive of a situation in which the

death of a victim  will not be relevant  to the use of force  and

violence during the commission  of an attempted carjacking.   See                                                                           

Fed. R.  Evid. 401 (defining "relevant  evidence"); United States                                                                           

v.  Rodriguez, 871  F. Supp.  545,  549 (D.P.R.  1994) (approving                       

admission  of  evidence of  "the victim's  death  as well  as the

manner  and means by which  it was accomplished"  as relevant and

"highly  persuasive"  of "force  and  violence"  in a  carjacking

prosecution).   This  case  is certainly  not the  exception that

proves the rule.  Nevertheless, relevancy does not tell the total

tale.    Evidence,  though  relevant,  may  be excluded  "if  its

probative  value is  substantially  outweighed by  the danger  of

unfair  prejudice, confusion  of  the issues,  or misleading  the

jury."  Fed. R. Evid. 403.  We turn, therefore, to the balance of

                                8

probative worth and unfair prejudice.

          In  this  instance,  appellant insists  that,  even  if

evidence concerning the killing was probative of guilt  under the

force  and violence element of  the offense, it  was not actually

necessary  to the prosecution's  case   the  government had other

evidence, such  as the  circumstances of the  carjackers' initial

encounter with the victim, that  would have made the point    and

the likelihood was great that grisly details would stir the baser

passions of  the jurors and cloud their  minds so that they could

not make  an objective  appraisal  of the  evidence before  them.

Thus,  appellant's  thesis runs,  the  risk  of unfair  prejudice

inherent in  permitting the  prosection to introduce  evidence of

the  homicide  substantially   outweighed  whatever   incremental

probative value the evidence may have supplied.

          We  review   a  trial  court's  rulings   admitting  or

excluding  particular  evidence for  abuse  of  discretion.   See                                                                           

United States v.  Holmquist, 36  F.3d 154, 163  (1st Cir.  1994),                                     

cert. denied, 115  S. Ct.  1797 (1995); Veranda  Beach Club  Ltd.                                                                           

Partnership  v. Western Surety Co., 936 F.2d 1364, 1373 (1st Cir.                                            

1991);  United States v. Nazarro,  889 F.2d 1158,  1168 (1st Cir.                                          

1989).   We grant the  trial court especially  wide latitude when

Rule 403 balancing is the subject of review.  "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                                                                 

                                9

1331,  1340 (1st Cir.  1988).  This  deference is equally  due in

criminal cases.   See, e.g., United  States v. Rodriguez-Estrada,                                                                          

877 F.2d 153, 156 (1st Cir. 1989); United States v. Ingraham, 832                                                                      

F.2d 229, 233-34  (1st Cir.  1987), cert. denied,  486 U.S.  1009                                                          

(1988); United States v.  Tierney, 760 F.2d 382, 388  (1st Cir.),                                           

cert. denied, 474 U.S. 843 (1985).                      

          Through this  modest lens, we see  no cognizable defect

in the  district  court's Rule  403  balancing.   Whatever  other

evidence  was available,  evidence  of  Luciano's death  remained

highly  probative of  culpability for an  essential element  of a

section 2119 offense.  Presumably,  like most evidence offered by

the  government in a criminal case, this evidence was designed to

prejudice the  jury  against  the defendant  in  the  sense  that

exposure  to it would  render a conviction more  likely.  But the

introduction of relevant evidence to influence perceptions is the

stuff of  our adversary system  of justice.   The law  protects a

defendant against unfair  prejudice, not  against all  prejudice.                                                               

See  Rodriguez-Estrada, 877  F.2d at  155-56; Onujiogu  v. United                                                                           

States, 817  F.2d 3, 6 (1st  Cir. 1987); see also  Veranda Beach,                                                                          

936 F.2d at 1372 (explaining that "trials were never meant  to be

antiseptic affairs;  it is  only unfair prejudice,  not prejudice

per se, against which  Rule 403 guards").  Since the  evidence at

issue is so tightly linked to guilt as defined by the elements of

the offense,  it would  be surpassingly  difficult  to justify  a

finding of unfair prejudice stemming from its introduction.

          Here, moreover, there are several additional weights on

                                10

the  scale favoring  admissibility.  For  one thing,  because the

perpetrators fled immediately after  the shooting, leaving behind

both  the  Mazda  and  a dying  man  in  the  driver's  seat, the

government's case on  count 3  depended on its  ability to  prove

attempted carjacking.   Without  knowing of Luciano's  death, the

jury may have been left to wonder why two supposed carjackers had

turned their backs on  an expensive, late-model sports car.   For

another  thing, Hidalgo,  understandably concerned  with her  own

safety at the time the incident occurred, could give only limited

testimony  as to what transpired,  and there was  a definite risk

that the jury,  if uninformed of Luciano's  passing, would engage

in  speculation as  to  why the  prosecution  did not  offer  his

testimony at trial.   See, e.g., United States v.  Accetturo, 966                                                                      

F.2d 631, 637 (11th Cir.  1992) (holding the fact of a  witness's

death  admissible as  "relevant  to explain  the  fact that  [the

witness]  did  not  testify"   and  to  prevent  the   jury  from

speculating),  cert. denied,  113 S.  Ct.  1053 (1993);  see also                                                                           

United  States v. Williams, 51  F.3d 1004, 1010  (11th Cir. 1995)                                    

(citing  Accetturo in admitting evidence of a victim's death in a                            

carjacking prosecution), petition for  cert. filed (U.S. Aug. 11,                                                            

1995) (No. 95-5555).

          These   considerations,   taken   in   the   aggregate,

underscore the  invulnerability of  the district  court's ruling.

The evidence here did more than tend to show guilt on one element

of  the offense;  it also  constituted a  crucial chapter  in the

government's  narrative  account   of  appellant's   carjackings,

                                11

allowing  the  jury  to  put  matters  into  perspective.   Trial

evidence is supposed to help  the jury reconstruct earlier events

and  then  apportion  guilt  or  responsibility  as  the law  may

require.   Rule  403 exists  to facilitate  this process,  not to

impede  it.   We think  it follows  that, although  a "controlled

environment for  the reception of  proof is essential,  . .  . an

artificially  sterile  environment   is  neither  necessary   nor

desirable."   Wagenmann  v. Adams,  829 F.2d  196, 217  (1st Cir.                                           

1987); see also  United States v.  McRae, 593 F.2d 700,  707 (5th                                                  

Cir.) ("Unless trials are to be conducted on scenarios, on unreal

facts tailored and sanitized for the occasion, the application of

Rule  403 must be  cautious and sparing.   Its major  function is

limited  to excluding  matter  of scant  or cumulative  probative

force,  dragged in by  the heels for the  sake of its prejudicial

effect."), cert. denied, 444 U.S. 862 (1979).                                 

          When  a  trial  court  in  a  criminal  case  exercises

discretion at first  hand, the  court of appeals  should go  very

slowly  in interfering  with its  judgment calls.   The  need for

caution  is magnified when, as  now, a challenged  ruling has the

effect of vindicating the government's well-established "right to

present  to the jury  a picture of  the events relied upon  . . .

including  proof of  all  elements of  the  crime for  which  the

defendant  has been brought to trial."  United States v. Tavares,                                                                          

21  F.3d 1, 3-4 (1st Cir. 1994)  (en banc) (citation and internal

quotation marks omitted).   Here, the  disputed evidence is  both

picture and proof; though lurid, it is part of what old-fashioned

                                12

lawyers might call the  res gestae, and it is  directly probative                                            

of an element of  the offense.  Consequently,  the court did  not

err in admitting it.   After all, it is the rare case  in which a

court  must require that the  story of the  crime be spoon-fed to

jurors in bits and pieces from which every drop of juice has been

drained.

                  B.  Denial of Mistrial Motion.                            B.  Denial of Mistrial Motion.                                                         

          During  his  trial  testimony,  a  prosecution witness,

homicide   detective   Lama-Canino,   blurted  out   that   Roman

(appellant's  partner in crime) had entered a guilty plea.  Judge

Laffitte immediately struck the statement, instructed  the jurors

to  disregard it, and warned them not to ponder the codefendant's

fate.    However,  the  court  refused  to  declare  a  mistrial.

Appellant assigns error.

          The trial  judge is best situated to make a battlefield

assessment  of  the impact  that a  particular piece  of improper

information may  have on a jury.   See United States  v. Lau, 828                                                                      

F.2d  871, 874  (1st  Cir. 1987),  cert.  denied, 485  U.S.  1005                                                          

(1988).   For this reason,  we have long  recognized that motions

for  mistrial are  committed to  the presider's  discretion, see,                                                                          

e.g., United States  v. De Jongh, 937 F.2d 1,  3 (1st Cir. 1991),                                          

especially  when such a motion  is predicated on some spontaneous

trial development  that can best be gauged in the ebb and flow of

the  trial itself, see United States v.  Pierro, 32 F.3d 611, 617                                                         

(1st Cir.  1994),  cert. denied,  115  S. Ct.  919 (1995).    Our                                         

reluctance  to intervene is often reinforced by an awareness that

                                13

in most cases a firm, timely curative instruction will adequately

quell  the  potential  for  prejudice.    See  United  States  v.                                                                       

Sepulveda,  15 F.3d 1161, 1184 (1st Cir. 1993), cert. denied, 114                                                                      

S.  Ct. 2714 (1994); United  States v. Ferreira,  821 F.2d 1, 5-6                                                         

(1st Cir. 1987).

          Although  every  trial  is different,  and,  therefore,

every  mistrial motion is sui generis, the assignment of error in                                               

this case is  reminiscent of  that advanced in  United States  v.                                                                       

Bello-Perez,  977  F.2d   664  (1st  Cir.  1992).     There,  the                     

defendant's  paramour twice  blurted out  that the  defendant had

suffered  a gunshot  wound  in an  event  unrelated to  the  drug

trafficking conspiracy with  which he  was charged.   See id.  at                                                                       

672.    The  district   judge  gave  a  contemporaneous  curative

instruction on each occasion, and refused to  declare a mistrial.

We upheld the ruling.  See id.                                        

          Here, as in Bello-Perez,  the trial court's handling of                                           

the witness's rash comment was well within the broad range of its

discretion.   The  analogy operates  on at  least three  levels.2

First, here, as in Bello-Perez, the offensive information, though                                        

unfit for  jury consumption,  was  not of  a kind  that might  be

                                                  

     2Appellant belatedly  attempts to distinguish the  two cases
on the ground that here, unlike in Bello-Perez, 977  F.2d at 672,                                                        
the offending  witness   a police officer   acted in bad faith by
deliberately  uttering  the improper  testimony.    At the  time,
however,  appellant's  counsel expressed  his agreement  with the
judge's  assessment  that the  witness  had  made a  spontaneous,
accidental slip of the tongue.  That ends  the matter.  Arguments
not raised in  the lower court  cannot be unfurled for  the first
time on appeal.  See United States v. Slade, 980 F.2d 27, 30 (1st                                                     
Cir. 1992).

                                14

thought irredeemably to  poison the  well.  The  fact that  Roman

pleaded guilty  had no bearing  upon appellant's primary  line of

defense    mistaken identity    and  had nothing  to do  with the

government's  attempt to prove that  Rivera-Gomez was the man who

accompanied Roman during the carjacking spree.

          Second, the strength  of the government's  overall case

is frequently a  cardinal factor  in evaluating the  denial of  a

mistrial motion.  Here, as in Bello-Perez, the prosecution's case                                                   

was extremely  robust.   There is  a correspondingly  small risk,

therefore, that Lama-Canino's wayward  remark could have been the

straw  that broke  the dromedary's  back.   See United  States v.                                                                        

Scelzo, 810 F.2d 2, 5 (1st Cir. 1987).                

          Third,  permitting  the   trial  to  proceed   is  more

palatable because, as in Bello-Perez, the judge gave an immediate                                              

curative instruction   a  device that we have regularly  endorsed

as  a means of dispelling potential prejudice.  See United States                                                                           

v. Chamorro,  687 F.2d 1,  6 (1st Cir.),  cert. denied,  459 U.S.                                                                

1043 (1982).   We not only believe that the  language used by the

court fit the occasion, but we  also take heed that appellant did

not    then or now   suggest a more  felicitous phrasing.  At the

expense  of carting  coal to  Newcastle, we  note, too,  that the

judge, in  a commendable  abundance of caution,  again admonished

the  jurors in his final instructions that appellant alone was on

trial, and that Roman's  guilt or innocence was not a matter with

which  they  should concern  themselves.   We are  confident that

these instructions,  in combination, eliminated  any prospect  of

                                15

prejudice that  might otherwise  have flowed from  the gratuitous

aside.

          As  a  fallback  position,  appellant claims  that  the

district court's instructions did  more harm than good, reminding

the jury of  the substance of the improper observation.   In some

respects,  of course, instructions cautioning jurors to disregard

testimony  may often  appear  to turn  evidence  into a  form  of

forbidden  fruit.  Every parent knows that admonitions to refrain

sometimes  only emphasize the attraction.  Cf. Tom Jones &amp; Harvey                                                        

Schmidt,  Never Say No (The  Fantastiks, 1960) ("My  son was once                                

afraid  to  swim; the  water made  him wince.    Until I  said he

mustn't swim; he's been  swimmin' ever since.").  But  jurors are

not children, and our system of trial by jury is  premised on the

assumption  that jurors  will  scrupulously  follow  the  court's

instructions.  See Richardson v. Marsh, 481 U.S. 200, 206 (1987);                                                

Francis  v. Franklin, 471 U.S. 307, 324 n.9 (1984); Sepulveda, 15                                                                       

F.3d at  1185.  Here,  we have no  basis (apart  from appellant's

self-interested  speculation) to  presume that  the evils  of the

cure exceeded  those of  the  disease, and  we therefore  decline

appellant's unsupported invitation to  surmise that the jury took

the wrong message from the curative instruction.

          To  recapitulate, given  the nature  of the  taint, the

strength of  the  government's case,  and the  promptness of  the

district court's  instructions, we are unprepared to say that the

court misused its discretion in denying the mistrial motion.  See                                                                           

United  States v.  Sclamo,  578 F.2d  888,  891 (1st  Cir.  1978)                                   

                                16

(upholding a denial of  mistrial after witness' improper comment,

"in light of the strong case and substantial evidence produced by

the  government, and in view  of the court's  cautionary words to

the jury concerning stricken testimony").

                C.  Imposition of a Life Sentence.                          C.  Imposition of a Life Sentence.                                                           

          In  his final  foray, appellant  takes aim at  the life

sentence  imposed on  count 3.   Having  argued earlier  that the

"death results" provision of the statute of conviction, 18 U.S.C.

  2119  (3), is  not an  element of the  offense, see  supra Part                                                                      

II(A), appellant now  posits that the  life sentence he  received

punishes him for a crime    Luciano's murder   with which  he was

never  charged, and  that,  therefore, his  sentence offends  the

Constitution.  We discern no constitutional infirmity.

          Appellant's   argument   is   not    entirely   without

foundation.  We agree  with him that subsection (3)  demarcates a

sentence-enhancing  factor, and  does  not  establish a  separate

offense  with an additional element.  After all, not every matter

mentioned  in the text of a criminal statute comprises an element

of the offense.

          To be sure,  attempting to distinguish  between offense

elements and sentence enhancers can sometimes be a daunting task.

When  deciding  how a  particular  statutory  allusion should  be

construed,  an  inquiring  court   must  mull  the  language  and

structure of  the statute,  and, when necessary,  its legislative

history.   See United  States v. Forbes, 16  F.3d 1294, 1298 (1st                                                 

Cir.  1994); United  States v.  Ryan, 9 F.3d  660, 667  (8th Cir.                                              

                                17

1993), modified on other grounds, 41 F.3d 361 (8th Cir. 1994) (en                                          

banc), cert. denied,  115 S.  Ct. 1793 (1995);  United States  v.                                                                       

Rumney, 867 F.2d 714,  717-19 (1st Cir.), cert. denied,  491 U.S.                                                                

908  (1989); United States v.  Jackson, 824 F.2d  21, 23-24 (D.C.                                                

Cir. 1987).

          The structure of section 2119, the unexpurgated text of

which  is quoted supra at p. 5,3 strongly indicates that Congress                                

intended its subsections to be sentence-enhancing factors and not

elements  constituting separate  species of  carjacking offenses.

The  initial paragraph  of the statute  establishes the  crime of

carjacking.  That paragraph ends  with the word "shall," followed

by  three subsections.   These  subsections are  not structurally

independent   provisions  in  which  the  essential  elements  of

carjacking   are  redefined   and  embellished   with  additional

components.    Rather,  the  structure  is  integrated,  and  the

statutory provisions form a seamless whole.

          The first  subsection limns the base  sentence, and the

following two subsections clear the way for enhanced sentences if

either serious bodily injury or death results from the commission

of the carjacking  offense.  Ripped from  their textual moorings,

subsections (2) and (3) would be little more than gibberish; they

are   incapable  of   "stand[ing]  alone,   independent  of   the

[underlying]  offense."  Ryan, 9 F.3d at 667.  Consequently, this                                       

statutory structure  comprises persuasive evidence  that Congress

                                                  

     3The 1994 amendment, discussed supra note 1, does not affect                                                   
our analysis of these subsections.

                                18

intended the  second and third subsections simply  to augment the

sentences for  certain aggravated  carjackings, not  to establish

additional  offenses  with independent  elements.   Accord United                                                                           

States  v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995); Williams, 51                                                                       

F.3d at 1009.

          Although this reading is the most natural and sensible,

especially given the interdependence of the provisions, we go the

extra  mile   and  venture  into  the   legislative  history  for

confirmation of Congress's  intent.  The path  is plainly marked,

see Oliver,  60 F.3d  at  553, and  we can  deduce  no reason  to                    

retrace its  contours.   The Eleventh  Circuit has  collected and

canvassed  the  relevant   historical  materials,  examined  them

perspicaciously, and  concluded that  the  background of  section

2119 makes manifest that Congress intended subsection (3) to be a

sentence  enhancer,  not  a separate  offense.    See  id.   This                                                                    

conclusion is unarguable, and we adopt it.

          Having  concluded  that  18   U.S.C.     2119(3)  is  a

sentence-enhancing factor, we next consider the constitutionality

vel non of  appellant's life sentence  on count 3.   Viewed as  a                 

sentence-enhancing   factor,   subsection   (3)    represents   a

congressional  judgment that  the punishment  for  committing the

crime of carjacking should be harsher if the offense, as actually

perpetrated,  includes  conduct that  produces  the  demise of  a

victim.    In  this sense,  the  architecture  of  the carjacking

statute bears a family  resemblance to the design of  the federal

sentencing  guidelines, which  make  generous use  of "sentencing

                                19

enhancement  regimes  evincing  the judgment  that  a  particular

offense  should  receive  a  more  serious  sentence  within  the

authorized range if it  was either accompanied by or  preceded by

additional criminal activity."   Witte v.  United States, 115  S.                                                                  

Ct.  2199, 2208  (1995).   For example,  under U.S.S.G.    1B1.3,

"this  court  has repeatedly  upheld  the  inclusion as  relevant

conduct of acts either  not charged or charged but  dropped," and

authorized resort to that  conduct as a sentence-enhancing datum.

United  States v.  Garcia,  954  F.2d  12,  15  (1st  Cir.  1992)                                   

(collecting cases).  By like token, a defendant convicted of drug

trafficking  will find his sentence enhanced if it turns out that

he  possessed a  dangerous  weapon during  the commission  of the

crime,  see  U.S.S.G.  2D1.1(b)(1),  or  if a  victim  died under                     

circumstances that would constitute murder, see id.  2D1.1(d).                                                             

          The  Supreme  Court  has  made it  pellucid  that  such

sentencing enhancement schemes do  not constitute punishments for

separate offenses:   "the  fact that the  sentencing process  has

become more  transparent under the guidelines . . . does not mean

that the defendant is now being `punished' for uncharged  conduct

as though it were a distinct criminal `offense.'"  Witte,  115 S.                                                                  

Ct.  at  2207;  see also  id.  at  2206-07  (explaining that  the                                       

consideration  given  to  particular  aspects  of  character  and

conduct  at sentencing "does  not result in  `punishment' for any

offense  other   than  the  one   of  which  the   defendant  was

convicted").  So it is here.  Appellant is not being punished for

the  uncharged crime of murder, but, rather, he is being punished

                                20

more  severely for  the crime of  carjacking because  his conduct

during the  commission of the crime led to the loss of a victim's

life.

          Of course, the burgeoning  use of sentence enhancers by

Congress and the Sentencing Commission  as part of the  catechism

of  punishment   poses  an   obvious  danger  that,   in  extreme

circumstances, the  lagniappe might  begin to overwhelm  the main

course.  In  all probability, there are constitutional  limits on

the way sentencing factors can be deployed in the punishment of a

substantive offense.  See id. at 2208; McMillan v.  Pennsylvania,                                                                          

477 U.S. 79, 88 (1986).  But that proposition is only of academic

interest where, as here, the sentence enhancement scheme "neither

alters  the maximum penalty for the crime committed nor creates a

separate offense calling for a separate penalty."   McMillan, 477                                                                      

U.S. at 87-88.

          In this case, under appellant's own reading of the law,

Congress  has,  in  essence,  established   a  statutory  maximum

sentence of  life  imprisonment for  carjacking,  and  authorized

courts to levy such a sentence when a defendant's conduct results

in  the victim's  death.  This  paradigm is  no different  in its

legal effect than if Congress had  set a statutory range of up to

life in prison, and  the sentencing guidelines, through a  web of

enhancement  factors, had authorized a sentence of life only on a

finding  by  the  sentencing court  that  the  crime  resulted in

                                21

death.4  In fine,  section 2119 establishes only one  offense and

sets a range of punishment for that offense, varying according to

conduct.     So   viewed,  the   sentencing  scheme   crosses  no

constitutional boundaries.

III.  CONCLUSION          III.  CONCLUSION

          We  need  go  no further.    From  aught  that appears,

appellant  was  fairly  tried,  justly  convicted,  and  lawfully

sentenced.

Affirmed.          Affirmed.                  

                                                  

     4One might argue that  because a judge has no  discretion to
impose a life sentence unless death results,   2119(c)(3) amounts                                       
to a  "rule" establishing  a separate,  uncharged offense.   This
argument would  fail.  "Regardless of  whether particular conduct
is taken  into account by  rule or as  an act of  discretion, the
defendant is  still  being  punished  only  for  the  offense  of
conviction."  Witte, 115 S. Ct. at 2207.                             

                                22
