
USCA1 Opinion

	




          October 11, 1996  UNITED STATES COURT OF APPEALS          October 11, 1996  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1614                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOHN HOULIHAN,                                Defendant, Appellant.                              _________________________          No. 95-1615                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JOSEPH A. NARDONE                                Defendant, Appellant.                              _________________________          No. 95-1675                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                MICHAEL D. FITZGERALD                                Defendant, Appellant.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET          The opinion of this court issued on August 22, 1996, is corrected          as follows:               On page 52, line 22, change "Boylan" to "O'Bryant"                                            ______      ________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1614                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOHN HOULIHAN,                                Defendant, Appellant.                              _________________________          No. 95-1615                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JOSEPH A. NARDONE                                Defendant, Appellant.                              _________________________          No. 95-1675                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                MICHAEL D. FITZGERALD                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Charles W. Rankin, with  whom Rankin & Sultan was  on brief,               _________________             _______________          for appellant Houlihan.               Jonathan   Shapiro,  with  whom  Angela  Lehman  and  Stern,               __________________               ______________       ______          Shapiro, Weissberg & Garin were on brief, for appellant Nardone.          __________________________               Kevin  S. Nixon,  with whom  Robert Y.  Murray and  Ramsey &               _______________              _________________      ________          Murray were on brief, for appellant Fitzgerald.          ______               Nina Goodman,  Attorney, Dep't of Justice,  with whom Donald               ____________                                          ______          K.  Stern, United  States Attorney,  Paul V.  Kelly and  Frank A.          _________                            ______________      ________          Libby,  Jr., Assistant  United  States Attorneys,  and Daniel  S.          ___________                                            __________          Goodman and David S.  Kris, Attorneys, Dep't of Justice,  were on          _______     ______________          brief, for the United States.                              _________________________                                   August 22, 1996                              _________________________                    SELYA, Circuit Judge.  These appeals present a hothouse                    SELYA, Circuit Judge.                           _____________          of efflorescent issues set against a backdrop composed of roughly          equal parts of  drugs, money, and mayhem.  Two  of those issues            one implicating the Confrontation  Clause and the other involving          Fed.  R.  Crim. P.  24(c)    raise  important questions  of first          impression in this circuit.  In the pages that follow, we offer a          skeletal  outline of the case and then  put flesh on the bones by          addressing,  first, the appellants' two flagship claims.  We next          consider  a   series  of  discovery  disputes   and  conclude  by          discussing, albeit in a more abbreviated fashion, a laundry  list          of other asseverations.  In  the end, after careful consideration          of  the  parties'  arguments   and  close  perscrutation  of  the          compendious record, we  affirm the judgments below in large part,          but reverse  one defendant's  conviction on three  related counts          and bring a contingent sentencing determination to closure.          I.  BACKGROUND          I.  BACKGROUND                    Overcoming   the  temptation   to  engage   in  Homeric          recitation of the  riveting facts that emerged  during a seventy-          day trial, we opt instead to sketch the evidence at this juncture          and  reserve  greater  detail  until the  need  arises  to  place          specific issues into  workable context.   We draw  our sketch  in          colors that coordinate with  the jury's verdicts, consistent with          record support.  See, e.g., United States v. Ortiz, 966 F.2d 707,                           ___  ____  _____________    _____          711 (1st Cir. 1992), cert. denied, 506 U.S. 1063 (1993).                               _____ ______                    For  nearly  four  years  Michael  Fitzgerald and  John          Houlihan  ran a ruthlessly  efficient drug ring  from an unlikely                                          4          command   post:       Kerrigan's   Flower   Shop,    Charlestown,          Massachusetts.   The  organization  commanded  the allegiance  of          numerous   distributors,   stationary   and   mobile,   including          Jennierose Lynch, William "Bud" Sweeney, George Sargent, and Alan          Skinner.    These  minions,  and  others  like them,  helped  the          organization  supply  cocaine  to  hordes of  buyers  through  an          elaborate street-level distribution network that arranged most of          its  sales with the  aid of electronic  pagers, assigned customer          codes, and preset rendezvous points.                    Fitzgerald  and  Houlihan  imposed  a  strict  code  of          silence on all who  came into contact with them,  including their          own troops.  They dealt severely with persons who seemed inclined          to  talk too freely.  Joseph Nardone, a professional assassin who          bragged  that he was the "headache man"   when the organization's          chieftains had a  headache, Nardone got rid of it    acted as the          principal  enforcer.   Over  time,  the  gang's targets  included          Sargent, Sweeney (who survived multiple attempts on his life, but          was left paralyzed  from the  chest down), a  rival drug  dealer,          James Boyden III, and the latter's son and helpmeet, James Boyden          IV.                    The Fitzgerald-Houlihan axis dominated  the Charlestown          scene  through 1993.  Ultimately,  the authorities broke the code          of silence and a federal  grand jury indicted twelve  individuals          (including  Fitzgerald, Houlihan,  and  Nardone) on  a myriad  of                                          5          charges.1  After  trial, the two  ringleaders and their  enforcer          were found guilty of engaging in a racketeering enterprise (count          1),  racketeering  conspiracy  (count  2), conspiracy  to  commit          murder in aid of  racketeering (counts 5, 7 &  9), and conspiracy          to distribute  cocaine (count 20).   See  18 U.S.C.     1962(c) &                                               ___          (d),  1959(a);  21  U.S.C.     846.    The  jury  also  convicted          Fitzgerald  and  Houlihan  of  aiding  and  abetting  murder  and          attempted murder in  aid of racketeering (counts 6, 8,  11 & 12),          instigating murder  for hire (counts 15, 16  & 17), engaging in a          continuing  criminal  enterprise  (count  19),  and  distributing          cocaine (counts 21 through 29).  See  18 U.S.C.    1959(a), 1958;                                           ___          21 U.S.C.    848,  841(a)(1).  The  jury found Nardone guilty  of          murder  and attempted murder in aid of racketeering (counts 6, 8,          11  & 12),  see 18  U.S.C.    1959(a), and  using and  carrying a                      ___          firearm  during and in relation to crimes of violence (counts 39,          40, 42 &  43), see 18  U.S.C.   924(c).   The jury also  returned                         ___          special  forfeiture verdicts.  See 18  U.S.C.   1963; 21 U.S.C.                                           ___          853.   The district  court sentenced  each defendant  to multiple          terms of life imprisonment.  These appeals blossomed.          II.  THE VOICE FROM THE GRAVE          II.  THE VOICE FROM THE GRAVE                    The district  court admitted over objection portions of          hearsay  statements made  by George  Sargent on  the  theory that                                        ____________________               1Of  these  twelve, only  Fitzgerald, Houlihan,  and Nardone          appear  as appellants  before us.   Three  of their  codefendants          (Skinner, Lynch,  and  Joseph Houlihan)  eventually pled  guilty;          five others were granted a separate trial; and one (William Herd)          was   acquitted  by  the  same  jury  that  convicted  the  three          appellants.                                          6          Sargent's murder constituted a waiver of the Confrontation Clause          vis- -vis the murderers.2   Houlihan and Nardone  assign error to          this order and to a salmagundi of related rulings.                                A.  Setting the Stage.                                A.  Setting the Stage.                                    _________________                    Sargent  served as  a  distributor for  the Fitzgerald-          Houlihan organization.  The police arrested him twice during 1992          on drug-trafficking charges.   Both times, Sargent made voluntary          statements that inculpated Fitzgerald and Houlihan in a sprawling          drug conspiracy  and tended  to link  them with  several murders.          The statements also furnished  evidence probative of the elements          of  the offenses with which Nardone had been charged, but Sargent          did not mention him by name.   On June 28, 1992   within a  month          after  he  gave the  second  statement    police  found Sargent's          corpse in a parking lot.  He had been killed by a bullet wound to          the head inflicted at close range.                    The government filed a pretrial motion for an order (1)          authorizing  a  state trooper,  Mark  Lemieux,  to testify  about          Sargent's  statements following  his March  1992 arrest,  and (2)          permitting the jury  to hear a redacted version of  the taped May          1992  interview conducted  by Boston police  detectives following          Sargent's  second  arrest.     The  government  argued  that  the          appellants    who had been charged with Sargent's murder   waived          their rights  to  object to  the  admission of  his  out-of-court                                        ____________________               2Because  the  government  did  not prove  to  the  district          court's  satisfaction  that Fitzgerald  shared  his codefendants'          intent to forestall Sargent from cooperating with the police, the          court ruled that  Sargent's statements could not be  used against          Fitzgerald.  The correctness of that ruling is not before us.                                          7          statements on either Confrontation Clause or hearsay grounds when          they  successfully  conspired  to  execute him  for  the  express          purpose of preventing his cooperation with the authorities.   The          district court took the motion under advisement and, near the end          of  the  government's  case  in chief,  admitted  the  challenged          evidence against  Houlihan and  Nardone, but not  Fitzgerald, see                                                                        ___          supra note 2, concluding  that the government had shown  by clear          _____          and convincing  evidence that those defendants  conspired to kill          Sargent at  least in part for the  purpose of preventing him from          cooperating  with   the  police,  and  that   such  actions  were          tantamount  to a  knowing waiver  of their  confrontation rights.          See United States v. Houlihan, 887 F. Supp. 352, 363-65 (D. Mass.          ___ _____________    ________          1995).3                  B.  Waiver by Homicide:  The Confrontation Clause.                  B.  Waiver by Homicide:  The Confrontation Clause.                      _____________________________________________                    To resolve Houlihan's and Nardone's main objections, we          must  decide  whether a  defendant  waives his  rights  under the          Confrontation Clause by murdering  a potential witness to prevent          that witness  from  turning state's  evidence  and/or  testifying          against him at trial.  We believe that he does.                    It is apodictic that "in all criminal prosecutions, the          accused shall  enjoy the right  . . .  to be confronted  with the          witnesses against  him .  . . ."   U.S. Const.  Amend. VI.   This          trial right  is  designed to  assure defendants  of a  meaningful          opportunity to cross-examine  the witnesses  who testify  against                                        ____________________               3The district  court also  published a  preliminary opinion,          United States v.  Houlihan, 871  F. Supp. 1495  (D. Mass.  1994),          _____________     ________          which is of little moment in regard to these appeals.                                          8          them,  see,  e.g., Delaware  v. Van  Arsdall,  475 U.S.  673, 678                 ___   ____  ________     ____________          (1986);  United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir.                   _____________    _____________          1996), thereby enhancing the jury's ability to separate fact from          fiction.                    Though the Confrontation Clause is a cornerstone of our          adversary system of  justice, it  is not an  absolute; there  are          circumstances in  which the prosecution may  introduce an unsworn          out-of-court statement without procuring the declarant's presence          at trial.  See, e.g., Puleio v. Vose, 830 F.2d 1197, 1205-07 (1st                     ___  ____  ______    ____          Cir. 1987) (discussing  exception for spontaneous  exclamations),          cert. denied, 485  U.S. 990  (1988).  Moreover,  a defendant  may          _____ ______          waive  his  right to  confrontation  by  knowing and  intentional          relinquishment.   See Boykin v. Alabama, 395 U.S. 238, 243 (1969)                            ___ ______    _______          (holding  that  a  guilty  plea  is  an  express  waiver  of  the          constitutional  right  to  confrontation); see  also  Johnson  v.                                                     ___  ____  _______          Zerbst, 304 U.S. 458, 464 (1938).  While a waiver of the right to          ______          confront  witnesses typically is express, the law is settled that          a defendant also may waive it through his intentional misconduct.          See,  e.g., Taylor  v.  United States,  414  U.S. 17,  20  (1973)          ___   ____  ______      _____________          (finding such  a waiver  when a  defendant boycotted  his trial);          Illinois  v. Allen,  397  U.S. 337,  343  (1970) (ruling  that  a          ________     _____          defendant  waives  the  right  to confrontation  by  engaging  in          disruptive  behavior requiring  his  removal  from the  courtroom          during the trial).                    By  the same token, courts  will not suffer  a party to          profit by his own  wrongdoing.  Thus, a defendant  who wrongfully                                          9          procures  a  witness's absence  for  the purpose  of  denying the          government that  witness's testimony  waives his right  under the          Confrontation Clause  to object to  the admission  of the  absent          witness's hearsay statements.   See Reynolds v. United States, 98                                          ___ ________    _____________          U.S. (8  Otto)  145, 158  (1878)  (holding that  the  defendant's          refusal to disclose the whereabouts of a witness constituted such          a waiver); Steele  v. Taylor,  684 F.2d 1193,  1201-02 (6th  Cir.                     ______     ______          1982) (holding  that  a  defendant  who  silences  a  witness  by          exploiting  an   intimate  relationship   waives  the   right  to          confrontation), cert. denied, 460 U.S. 1053 (1983); United States                          _____ ______                        _____________          v. Balano, 618 F.2d 624, 629 (10th  Cir. 1979) (concluding that a             ______          defendant  waives  his  confrontation  right  by  threatening   a          witness's life  and bringing about the  witness's silence), cert.                                                                      _____          denied, 449 U.S. 840  (1980); United States v. Carlson,  547 F.2d          ______                        _____________    _______          1346, 1358-60 (8th Cir.  1976) (similar), cert. denied, 431  U.S.                                                    _____ ______          914 (1977).   Moreover, it is  sufficient in this regard  to show          that the  evildoer was motivated  in part by a  desire to silence                                            __ ____          the witness; the  intent to deprive the  prosecution of testimony          need not  be the actor's sole  motivation.  Cf. United  States v.                                   ____               ___ ______________          Thomas,  916 F.2d  647, 651  (11th Cir.  1990) (stating  that the          ______          obstruction of justice statute, 18 U.S.C.   1503,  requires proof          that the defendant's conduct was "prompted, at least in part," by          the requisite corrupt motive).                    Houlihan and Nardone  argue, however, that the  waiver-          by-misconduct doctrine, even if good law,  should not be employed          here because Sargent was  not an actual witness    no charges had                                           ______                                          10          been  lodged against Houlihan or Nardone at the time of Sargent's          murder, and no grand jury had as yet been convened    but at most          a turncoat cooperating  with the  police.  Thus,  they could  not          have been on  notice that they  were waiving a  trial right.   We          find this argument unpersuasive.  Although the reported cases all          appear to involve actual  witnesses, see, e.g., United States  v.                                               ___  ____  _____________          Thai, 29 F.3d 785, 798 (2d Cir.), cert. denied, 115 S. Ct.  456 &          ____                              _____ ______          496  (1994); United States  v. Mastrangelo, 693  F.2d 269, 271-72                       _____________     ___________          (2d  Cir. 1982),  cert.  denied, 467  U.S.  1204 (1984),  we  can                            _____  ______          discern  no  principled   reason  why  the   waiver-by-misconduct          doctrine  should  not  apply  with equal  force  if  a  defendant          intentionally silences a potential witness.                                   _________                    When  a  defendant  murders  an  individual  who  is  a          percipient  witness  to  acts  of criminality  (or  procures  his          demise) in order  to prevent  him from appearing  at an  upcoming          trial, he denies the government the benefit of the witness's live          testimony.  In much the same way, when a defendant murders such a          witness (or procures  his demise)  in order to  prevent him  from          assisting an  ongoing criminal  investigation, he is  denying the          government  the benefit  of  the witness's  live  testimony at  a          future trial.  In  short, the two situations are  fair congeners:          as long as  it is reasonably  foreseeable that the  investigation          will culminate in the bringing of charges, the mere fact that the          homicide  occurs  at an  earlier step  in  the pavane  should not          affect   the  operation  of  the  waiver-by-misconduct  doctrine.          Indeed, adopting  the contrary  position urged by  the appellants                                          11          would  serve  as a  prod to  the  unscrupulous to  accelerate the          timetable and murder suspected snitches sooner rather than later.          We  see no justification for creating  such a perverse incentive,          or  for distinguishing  between  a defendant  who assassinates  a          witness  on  the  eve of  trial  and  a  potential defendant  who          assassinates a potential  witness before charges  officially have          been  brought.  In either case, it  is the intent to silence that          provides notice.                    We  therefore hold  that when  a person  who eventually          emerges  as   a  defendant  (1)  causes   a  potential  witness's          unavailability  (2) by  a wrongful  act (3)  undertaken with  the          intention of preventing the  potential witness from testifying at          a future trial, then  the defendant waives his right to object on          confrontation  grounds   to  the  admission  of  the  unavailable          declarant's out-of-court statements at trial.                    Before applying this  holding to the  case at hand,  we          must  correctly calibrate the quantum of proof.  The lower court,          paying obeisance to United States v. Thevis, 665 F.2d 616, 629-30                              _____________    ______          (5th  Cir. Unit B), cert.  denied, 456 U.S.  1008 (1982), adopted                              _____  ______          the  minority view and decided that the government must prove the          predicate facts essential to the waiver by "clear and convincing"          evidence.  Houlihan, 887  F. Supp. at 360.  This  sets too high a                     ________          standard.  Unlike the Fifth Circuit, we think that the government          need  only prove such predicate  facts by a  preponderance of the          evidence.                    The  Thevis  court  compared  the  waiver-by-misconduct                         ______                                          12          problem  to the  admissibility of  in-court identifications  that          follow tainted  out-of-court identifications.  See,  e.g., United                                                         ___   ____  ______          States v. Wade, 388 U.S. 218, 240 (1967) (requiring government to          ______    ____          prove by  "clear and  convincing" evidence in  such circumstances          that  the   proposed  in-court  identification   has  a  reliable          independent  basis).    With   respect,  we  believe  the  better          comparison is  to the admission of  out-of-court statements under          the coconspirator exception  to the  hearsay rule.   See Fed.  R.                                                               ___          Evid. 801(d)(2)(E).   To invoke the  coconspirator exception, the          proponent of the statement  must "show by a preponderance  of the          evidence" certain  predicate  facts, namely,  "that a  conspiracy          embracing both the declarant and the defendant existed,  and that          the declarant uttered  the statement during and in furtherance of          the  conspiracy."  United States v. Sepulveda, 15 F.3d 1161, 1180                             _____________    _________          (1st Cir. 1993), cert.  denied, 114 S. Ct. 2714  (1994); see also                           _____  ______                           ___ ____          Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).          _________    _____________                    Proving  the conditions precedent  to the applicability          of  the coconspirator exception  is analytically and functionally          identical  to proving  that a  defendant's wrongdoing  waives his          rights under the Confrontation  Clause.  See Steele, 684  F.2d at                                                   ___ ______          1203;  United  States v.  White, 838  F.  Supp. 618,  624 (D.D.C.                 ______________     _____          1993).  We therefore align ourselves with the majority of federal          appellate courts  that have  considered the question,  see, e.g.,                                                                 ___  ____          Mastrangelo,  693  F.2d  at 273;  Steele,  684  F.2d  at 1202-03;          ___________                       ______          Balano, 618 F.2d at 629, and set the government's burden of proof          ______          at the preponderance-of-the-evidence level.                                          13                    Measured  against this more conventional benchmark, the          district court's findings  easily pass muster.   The record amply          demonstrates that  Houlihan and Nardone knew  when they conspired          to  murder Sargent that they  were depriving the  government of a          potential witness.   First, the district  court supportably found          that they  believed Sargent was  cooperating with the  police and          could  harm them and the organization by talking.4  See Houlihan,                                                              ___ ________          887 F. Supp. at 363-64.   Second, Sargent was in fact cooperating          with law enforcement officials at the time and made two voluntary          statements  in  which  he   provided  detailed  accounts  of  the          organization's  modus operandi,  descriptions of  the principals'          roles  in various  murders,  and a  frank  admission of  his  own          involvement in the conspiracy.   While the defendants' perception          of  likely cooperation may  well be enough to  meet this prong of          the  test,  the  fact  of Sargent's  cooperation  reinforces  the          inference  that the  killers  believed Sargent  was spilling  the          beans and  murdered him on that account.  Last but not least, the          conspirators knew  to a certainty  that Sargent had  keen insight          into their felonious  activities both  from his own  work in  the          distribution network and from  sundry conversations in which they          spoke  openly to  him    in  retrospect, too  openly    of  their          participation in serious crimes.                    This  evidentiary  foundation  sturdily   supports  the                                        ____________________               4It  is  noteworthy that,  after  Judge Young  ruled  on the          admissibility  of Sargent's  statements,  Sweeney testified  that          Houlihan told him, flat out, that Sargent had been killed because          he "was talking to the cops."                                          14          conclusion  that  Houlihan  and  Nardone  reasonably  could  have          foreseen Sargent becoming  a witness against them  and plotted to          kill  him in  order to  deprive the  government of  his firsthand          testimony.  Hence, the  district court did not err  in overruling          objections to  the introduction of portions  of Sargent's out-of-          court  statements insofar  as those  objections stemmed  from the          Confrontation Clause.5                   C.  Waiver by Homicide:  The Hearsay Objections.                   C.  Waiver by Homicide:  The Hearsay Objections.                       ___________________________________________                    Houlihan  and Nardone  next  argue that,  even if  they          waived their confrontation rights,  the district court should not          have admitted  Sargent's  hearsay statements  because  they  were          tinged  with self-interest  (having been  made in  police custody          with  a  stiff  sentence  for distributing  large  quantities  of          narcotics  in  prospect)  and  therefore  lacked  "circumstantial          guarantees of trustworthiness."  Fed. R. Evid. 804(b)(5).  On the          facts  of  this  case, we  agree  with  the  district court,  see                                                                        ___          Houlihan, 887 F. Supp. at 362, 367, that Houlihan's and Nardone's          ________          misconduct waived  not only  their confrontation rights  but also          their  hearsay objections,  thus rendering  a special  finding of          reliability superfluous.                                        ____________________               5In  a related vein, Houlihan  and Nardone complain that the          district court failed to conduct  an evidentiary hearing prior to          ruling  on  the  admissibility  of Sargent's  statements.    This          complaint  strikes us  as  a  thinly-veiled  effort to  rehash  a          discovery  dispute  that we  discuss infra  Part  IV(B).   In all                                               _____          events, the district court heard arguments of counsel and thirty-          seven days of trial testimony before deciding that the statements          could be utilized.   In  these circumstances, the  court did  not          outstrip the bounds of  its discretion in declining to  convene a          special mid-trial evidentiary hearing.                                          15                    The  Supreme Court  has yet to  plot the  crossroads at          which  the  Confrontation  Clause   and  the  hearsay  principles          embedded in the Evidence Rules intersect.  The question is subtly          nuanced.   Though the two bodies of law are not coterminous, they          husband essentially the same interests.  See California v. Green,                                                   ___ __________    _____          399 U.S.  149, 155-56 (1976).   Both attempt to  strike a balance          between  the government's  need  for probative  evidence and  the          defendant's stake in testing the government's case through cross-          examination.  See Ohio v. Roberts, 448  U.S. 56, 65 (1980).  As a                        ___ ____    _______          result, whether hearsay principles are more or less protective of          a  defendant's  right  to  cross-examination  than  confrontation          principles depends on the point at which the balance is struck in          any particular instance  (recognizing, however, that  the balance          can  be  struck at  different levels  in  different cases).   See                                                                        ___          Green, 399 U.S. at 156.          _____                    In this case,  we can take matters a step  further.  In          constructing  the balance the  main interest that  must be offset          against the government's need for evidence is the accused's right          to confrontation (for  this is the right from which  the right to          cross-examine springs).   Once the confrontation  right is lifted          from  the scales  by operation  of the  accused's waiver  of that          right,  the balance  tips  sharply  in  favor  of  the  need  for          evidence.  See Thai, 29 F.3d at 841 (holding that a defendant who                     ___ ____          waives  his  confrontation   right  by  wrongfully  procuring   a          witness's  silence also waives  hearsay objections vis- -vis that          witness); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992)                    _____________    ______                                          16          (similar);  see  also  Steele,  684  F.2d  at  1201  (noting that                      ___  ____  ______          "English  and  American  courts  have  consistently  relaxed  the          hearsay rule  when the  defendant wrongfully causes  the witness'          unavailability").   Here, then, inasmuch as  Houlihan and Nardone          waived their confrontation right by colloguing to murder Sargent,          they  simultaneously  waived their  right  to  object on  hearsay          grounds to the admission of his out-of-court statements.6  Hence,          the  district  court  appropriately   eschewed  the  request  for          findings under Fed. R. Evid. 804(b)(5).                    Houlihan and  Nardone have  a fallback position.   They          suggest that the district  court's admission of Sargent's out-of-          court statements violated their rights to due process because the          admissions  allowed  them   to  be  convicted  on  the  basis  of          unreliable evidence.  See Green, 399 U.S. at 163 n.15 (ruminating                                ___ _____          that  "considerations  of  due  process, wholly  apart  from  the          Confrontation Clause, might prevent  convictions where a reliable          evidentiary  basis   is  totally  lacking").     We  reject  this          initiative.   Whatever criticisms  justifiably might  be levelled          against Sargent's  statements, the portions  of those  statements          that Judge Young allowed  into evidence are not so  unreliable as                                        ____________________               6We  caution that a waiver  of confrontation rights does not          result in the automatic  surrender of all evidentiary objections.          For example, a district court  still should exclude relevant  but          highly  inflammatory evidence, misconduct notwithstanding, if the          danger of unfair prejudice substantially outweighs the evidence's          probative  value.   See  Fed. R.  Evid.  403.   Presumably,  such                              ___          evidence would have  been excludable on  a non-hearsay ground  if          the declarant were available to testify, so there is no reason to          admit   it   when   the   defendant   procures   the  declarant's          unavailability.                                          17          to  raise  due  process  concerns.    Other  evidence  abundantly          corroborates   (and  in  many   instances  replicates)  Sargent's          account.   For  instance, his  description of  the organization's          modus operandi  and his assessment of  Houlihan's leadership role          were confirmed and described in  excruciating detail by a  galaxy          of  live witnesses  (e.g.,  Michael Nelson,  Bud Sweeney,  Cheryl          Dillon).7  No more is exigible.                                 D.  The Redactions.                                 D.  The Redactions.                                     ______________                    After  ruling that  portions of  Sargent's out-of-court          statements  were  admissible against  Houlihan  and  Nardone, the          court  limited the May 30,  1992 statements to  those that "would          have  been competent  and admissible  evidence had  the declarant          been able to testify in person," and also excluded those portions          that "directly  or  through innuendo"  might offend  the rule  of          Bruton v. United States,  391 U.S. 123, 126 (1968)  (holding that          ______    _____________          the introduction at a joint trial  of a nontestifying defendant's          statements  that implicate a  codefendant constitutes prejudicial          error).   Houlihan,  887 F. Supp.  at 365.   Houlihan and Nardone                    ________          objected,  contending that  the  editing process  heightened  the          force of Sargent's statements, and that if the interviews were to          be introduced at all, then the  entire text should be fair  game.          The district court overruled the objections.                                        ____________________               7Perhaps  the  weakest  link   in  the  chain  is  Sargent's          statement regarding  a suggestive but ambiguous conversation that          he had with Houlihan  shortly before the killing of  James Boyden          III.   But this tale is relevant  principally to the three counts          against Houlihan on which we order his convictions reversed.  See                                                                        ___          infra Part V(B).  Thus, any error in admitting it is harmless.          _____                                          18                    On  appeal,  Houlihan  and   Nardone  argue  less  that          Sargent's  statements   should   have  been   redacted   somewhat          differently and more that  they should not have been  redacted at                                                                         __          all.8   They assert that  when a defendant  waives his rights  to          ___          make   Confrontation  Clause   and  hearsay   objections  through          misconduct,  the absent  declarant's full  out-of-court statement          should be admissible  at the  behest of either  the proponent  or          opponent of the statement.   This assertion rests on  a misguided          notion.                    The  cardinal  purpose   of  the   waiver-by-misconduct          doctrine is to ensure that a wrongdoer does not profit in a court          of  law by  reason  of his  miscreancy.   By  murdering  Sargent,          Houlihan and Nardone  denied the prosecution  the benefit of  his          live  testimony.  To compensate for that denial the court allowed          the  government  to introduce  portions  of  the interviews  that          Sargent  gave to  the  police.   The  defense, however,  was  not          entitled  to any  compensation,  and permitting  it to  introduce          additional hearsay statements (apart from statements necessary to          place the portions  used by  the government into  context and  to          render them not misleading)  would be to reward bloodthirstiness.          We decline to stamp a judicial imprimatur on a calculated murder.          Thus,  we hold that a  homicidal defendant may  by his misconduct                                        ____________________               8Though  the  district  court  applied  the  same  redaction          principles to the police officer's testimony concerning the March          interview (which was not  recorded or transcribed) and  the tape-          recorded  May interview, the emphasis on appeal is on the latter.          While we restrict  our discussion to that recording,  our holding          applies with equal force to the earlier debriefing.                                          19          waive  his hearsay objections, but that waiver does not strip the          government of its right  to lodge hearsay objections.  It is only          the party who wrongfully procures a witness's absence  who waives          the  right to object to  the adverse party's  introduction of the          witness's prior out-of-court statements.  See White, 838 F. Supp.                                                    ___ _____          at 625; see also Steele, 684 F.2d at 1202.                  ___ ____ ______                    To sum up, since  courts should not reward  parties for          their  own misdeeds,  a prior  out-of-court  statement made  by a          witness whose unavailability stems from the wrongful conduct of a          party,  aimed at  least  in part  at  achieving that  result,  is          admissible against that party as long as the statement would have          been admissible had  the witness  testified.  But  the party  who          causes  the witness's unavailability is  not entitled to the same          prophylaxis.  Consequently, under settled jurisprudence governing          totem-pole  hearsay, see Fed. R. Evid. 805, the tape of Sargent's                               ___          interview itself  constituted first-level hearsay not  within any          recognized exception,  and  the district  court  did not  err  in          admitting some  portions at the government's  urging and refusing          to admit the rest of the recording at the appellants' behest.                    Houlihan  and Nardone  offer  a second  reason why  the          trial  court   erred  in  excluding  the   balance  of  Sargent's          statements.  This construct  pivots on Evidence Rule 106,  a rule          that codifies  principles of  fairness and completeness.9   Under                                        ____________________               9The rule provides in pertinent part:                    When  a  . .  .  recorded  statement or  part                    thereof is introduced by a party, an  adverse                    party  may  require  him   at  that  time  to                                          20          it, a party  against whom a  fragmentary statement is  introduced          may demand  that the rest of the statement (or so much thereof as          is appropriate) be admitted  into evidence in order to  place the          excerpt in context.                    It is readily evident that, as the appellants maintain,          Rule 106  can serve its  proper function only if  the trial court          from time  to time is prepared to permit the introduction of some          otherwise inadmissible  evidence.   See United States  v. Sutton,                                              ___ _____________     ______          801  F.2d 1346,  1368  (D.C. Cir.  1986).   Be  that  as it  may,          completeness,  like beauty,  is  frequently  in  the eye  of  the          beholder.   The trial court is in the best position to assess the          competing centrifugal  and centripetal  forces that bear  on this          calculus.   Thus, when the trial court, acting in its discretion,          finds  that proffered excerpts,  standing on  their own,  are not          misleading,  its judgment  is  entitled to  great  respect.   See                                                                        ___          United States v. Boylan,  898 F.2d 230, 256-57 (1st  Cir.), cert.          _____________    ______                                     _____          denied, 498 U.S. 849 (1990).  So it is here.          ______                    Houlihan and Nardone  dwell on incompleteness primarily          because Judge  Young declared two sets  of comments inadmissible.          (1) Sargent told the police, inter alia, that James Boyden IV was                                       _____ ____          selling drugs  in Lynch's  territory; that Fitzgerald  warned him          and had  him beaten,  but  to no  avail; and  that  he then  told          Sargent  that  he  would  "just  have  to kill"  the  interloper.                                        ____________________                    introduce any other part . . . which ought in                    fairness  to be  considered contemporaneously                    with it.          Fed. R. Evid. 106.                                          21          Claiming that Fitzgerald's remarks to Sargent provided Fitzgerald          with a  different motive  to murder  Sargent, Houlihan  sought to          have  this part  of Sargent's  statement admitted  into evidence.          Houlihan   claims  that   omitting  references   to  Fitzgerald's          involvement in the  murder made  it appear that  he, rather  than          Fitzgerald, was the mastermind  responsible for that crime.   (2)          In a similar  vein, Nardone  claims that the  court's refusal  to          permit  him to introduce  references in the  interviews to Herd's          putative involvement in the Boydens' killings made it appear that          Nardone carried out those murders single-handed.                    The  court found that  these incremental  excerpts were          "segregable"  from  the  portions  of  the  interviews  that  the          government had  proffered and denied the  appellants' requests to          admit  them.  Houlihan,  887 F. Supp.  at 366.   In assessing the                        ________          court's  rulings,  three  facts are  worthy  of  note:   (1)  the          interview segments  admitted into evidence contained  no explicit          reference whatever to the  Boydens' murders; (2) neither Houlihan          nor Nardone were charged with the slaying of James Boyden IV; and          (3)  Sargent  never mentioned  Nardone  by name  anywhere  in the          course of either  debriefing.   Bearing these facts  in mind,  we          conclude  that  the lower  court acted  within  the realm  of its          discretion in refusing to invoke Rule 106.                    Houlihan and  Nardone also claim that  the court should          have admitted  other portions of Sargent's  interviews to impeach          his  credibility.   See  Fed. R.  Evid.  806 (providing  that the                              ___          credibility of  a hearsay declarant "may be attacked . . . by any                                          22          evidence which would  be admissible for  those purposes if  [the]          declarant  had testified  as  a witness").    The district  court          rejected this claim because it found the additional excerpts "too          convoluted, collateral, or cumulative to be admitted."  Houlihan,                                                                  ________          887 F.  Supp. at 368.   Having reviewed the items,  we discern no          error in their exclusion.                    Trial  courts  have  considerable  leeway  in  imposing          outside limits on  cross-examination.  See Van Arsdall,  475 U.S.                                                 ___ ___________          at  679;  Laboy-Delgado,  84  F.3d  at  28.    Here,  the  record                    _____________          demonstrates that the appellants had a full and fair  opportunity          during  their cross-examination of  the officers  who interviewed          Sargent to cast doubts upon his  veracity.  They made the most of          this opportunity.10   By  contrast, the  extra material that  the          appellants wished to introduce  lacked genuine impeachment  value          and  promised to  add  virtually nothing  of  consequence to  the          grueling cross-examination.   Thus, we cannot  fault the district          court for excluding this exiguous material.  See Van Arsdall, 475                                                       ___ ___________          U.S. at 679 (stating  that cross-examination appropriately may be          limited if redundant or marginally relevant); Boylan, 898 F.2d at                                                        ______          255-56 (similar).                    To  say  more would  be  supererogatory.   Because  our          painstaking  review of the record  reveals no solid grounding for                                        ____________________               10For  example, during cross-examination of Detective Harris          (who  taped and  testified  about the  May  1992 interview),  the          appellants  showed that  Sargent had  a lengthy  criminal record;          that he gave up his  confreres while facing the possibility of  a          fifteen-year mandatory minimum sentence for drug trafficking; and          that  he had  been  promised low  bail,  among other  things,  in          exchange for cooperation.                                          23          the  claim  that  the district  court  flouted  Rule  106 in  any          respect, we refuse to meddle.                              E.  Prejudicial Spillover.                              E.  Prejudicial Spillover.                                  _____________________                    There is one  last leg  to this phase  of our  journey.          Fitzgerald  alleges that  the  admission of  Sargent's statements          resulted in unfair prejudice to him.  The record reveals none.                    Because the  prosecution must  show the existence  of a          conspiracy to prove a conspiracy charge, evidence implicating one          coconspirator is  likely to be  directly relevant to  the charges          against  his codefendants.   See United  States v.  O'Bryant, 998                                       ___ ______________     ________          F.2d  21,  26 (1st  Cir. 1993).   Even  if  it is  not, mistrials          grounded  on  spillover  prejudice are  rare.    As  long as  the          district court limits the admission of the challenged evidence to          a particular defendant or defendants, the other defendants cannot          rewardingly complain  unless the  impact of  the  evidence is  so          devastating  that, realistically,  instructions  from  the  bench          cannot be expected to repair the damage.  See  Sepulveda, 15 F.3d                                                    ___  _________          at 1184.                    Silhouetted against  this set of  rules, the flimsiness          of  Fitzgerald's claim come into  bold relief.   What excites the          emotions in one  case may  be routine evidence  in another  case.          The material  distilled from  Sargent's statements    which would          have stood out like a  sore thumb in a prosecution rooted  in the          relative  gentility  of  white-collar   crime     does  not  seem          especially  sensational when  evaluated  in light  of the  other,          plainly admissible evidence that permeated this seventy-day  saga                                          24          of nonstop violence.  Moreover, the district court instructed the          jurors  on  the spot  that they  were  not to  consider Sargent's          statements  in deciding  Fitzgerald's fate.   To  complement that          directive, the  court redacted all references  to Fitzgerald from          the  portions of  those statements  that the  jury heard,  and it          repeated  its  prophylactic  instruction  on  several  occasions.          Under these circumstances, the presumption that jurors follow the          court's  instructions is  intact.   Ergo, Fitzgerald  suffered no          unfair prejudice.          III.  ALTERNATE JURORS          III.  ALTERNATE JURORS                    The  appellants calumnize  the district  court because,          despite their repeated objections, the court refused to discharge          the  alternate jurors once deliberations commenced and compounded          its   obduracy  by   allowing  the   alternate  jurors   to  have          intermittent contact with the  regular jurors during the currency          of jury deliberations.  This argument requires us to address, for          the first time, the interplay between violations of Fed. R. Crim.          P. 24(c) and the applicable test for harmless error.                    The imperative of Rule  24(c) is clear and categorical:          "An alternate juror who does not replace a regular juror shall be          discharged after the jury retires to consider its verdict."  Fed.          R. Crim. P. 24(c).   The rule reflects the abiding  concern that,          once a criminal case has been submitted, the jury's deliberations          shall  remain private  and  inviolate.11   See  United States  v.                                                     ___  _____________                                        ____________________               11Notwithstanding  that  Criminal  Rule  23(b)  permits  the          remaining  eleven  jurors   to  return  a  valid  verdict   if  a          deliberating juror is excused for cause, the wisdom of Rule 24(c)                                          25          Virginia Erection Corp., 335 F.2d 868, 872 (4th Cir. 1964).          _______________________                    Here, the  appellants' claim of error  is well founded.          Rule  24(c)   brooks  no  exceptions,  and   the  district  court          transgressed  its  letter  by  retaining  the   alternate  jurors          throughout  the deliberative  period.   The  lingering  question,          however, is  whether the infraction requires us to invalidate the          convictions.  The appellants say that it does.  In  their view, a          violation of  Rule 24(c)  automatically necessitates a  new trial          where, as  here, the defendants  preserved their claim  of error,          or, at least, the continued contact between regular and alternate          jurors that transpired  in this  case demands that  result.   The          government  endeavors to  parry  this thrust  by classifying  the          error as benign.  We find that the Rule 24(c) violation caused no          cognizable harm, and we deny relief on that basis.                    The watershed  case in this recondite corner of the law          is United States v. Olano, 507 U.S. 725 (1993).   There the trial             _____________    _____          court  permitted  alternate jurors,  while under  instructions to          refrain from engaging personally  in the deliberative process, to          remain  in  the   jury  room  and   audit  the  regular   jurors'          deliberations.  See id. at 727-29.  The jury found the defendants                          ___ ___          guilty.   The court of appeals, terming the presence of alternate          jurors  in   the  jury  room  during   deliberations  "inherently          prejudicial,"  granted  them new  trials  although  they had  not                                        ____________________          remains  debatable.    We   can  understand  a  district  judge's          reluctance, following  a long,  complicated, and  hotly contested          trial,  to release alternate jurors before a verdict is obtained.          But courts, above all other institutions, must obey the rules.                                          26          lodged contemporaneous  objections.  United States  v. Olano, 934                                               _____________     _____          F.2d 1425, 1428 (9th Cir. 1991).  The Supreme Court demurred.  It          noted  that  unless  an  unpreserved  error  affects  defendants'          "substantial rights," Fed.  R. Crim. P.  52(b), the error  cannot          serve as a fulcrum  for overturning their convictions.   507 U.S.          at  737.   The  Court then  declared that  the mere  "presence of          alternate jurors during  jury deliberations  is not  the kind  of          error  that `affect[s]  substantial  rights'  independent of  its          prejudicial  impact."   Id.   Instead,  the  critical inquiry  is                                  ___          whether  the presence of the  alternates in the  jury room during          deliberations actually  prejudiced the defendants.   See   id. at                                                               ___   ___          739.                    The  Justices conceded  that, as a  theoretical matter,          the presence of any outsider,  including an alternate juror,  may          cause  prejudice if  he  or  she  actually  participates  in  the          deliberations either "verbally" or through "body language," or if          his   or  her  attendance  were  somehow  to  chill  the  jurors'          deliberations.    Id.   The  Court  recognized, however,  that  a                            ___          judge's cautionary  instructions to alternates  (e.g., to refrain          from injecting themselves into  the deliberations) can operate to          lessen or eliminate  these risks.  See id. at 740 (remarking "the                                             ___ ___          almost invariable assumption  of the law that jurors follow their          instructions") (quoting  Richardson v.  Marsh, 481 U.S.  200, 206                                   __________     _____          (1987)).  Thus, absent  a "specific showing" that the  alternates          in fact participated in, or otherwise chilled, deliberations, the          trial  court's instructions to the alternates not to intervene in                                          27          the jury's deliberations precluded a finding of plain error.  Id.                                                                        ___          at 741.                    This  case presents  a  variation on  the Olano  theme.                                                              _____          Here, unlike in Olano, the appellants  contemporaneously objected                          _____          to the district court's retention  of the alternate jurors,  thus          relegating  plain  error  analysis  to  the  scrap  heap.    This          circumstance denotes two things.   First, here, unlike  in Olano,                                                                     _____          the  government,   not  the  defendants,  bears   the  devoir  of          persuasion with  regard to  the existence  vel non  of prejudice.                                                     ___ ___          Second,  we must today answer the precise question that the Olano                                                                      _____          Court  reserved for  later  decision.    See  id.    Withal,  the                                                   ___  ___          framework  of the inquiry in all other respects remains the same.          See id. at  734 (noting  that, apart from  the allocation of  the          ___ ___          burden of  proof, a claim of  error under Fed. R.  Crim. P. 52(b)          ordinarily  requires  the   same  type  of  prejudice-determining          inquiry  as does  a preserved  error).   We do  not discount  the          significance of this  solitary difference, see, e.g., id.  at 742                                                     ___  ____  ___          (Kennedy, J., concurring) (commenting  that it is "most difficult          for  the Government  to  show  the  absence of  prejudice"),  but          "difficult" does not mean "impossible."  Since Olano teaches that                                                         _____          a violation of Rule 24(c) is  not reversible error per se,12  see                                                                        ___          id.  at 737, we must  undertake a particularized inquiry directed          ___          at  whether the instant  violation, in the  circumstances of this          case,  "prejudiced  [the   defendants],  either  specifically  or                                        ____________________               12On   this  score,   Olano   confirmed   what  this   court                                     _____          anticipated.  See United  States v. Levesque, 681 F.2d  75, 80-81                        ___ ______________    ________          (1st Cir. 1982) (dictum).                                          28          presumptively."  Id. at 739.                           ___                    Our task, then, is to decide if the government has made          a sufficiently convincing case  that the district court's failure          to  observe  the  punctilio of  Rule  24(c)  did  not affect  the          verdicts.  See, e.g., id. at 734; Kotteakos v. United States, 328                     ___  ____  ___         _________    _____________          U.S. 750,  758-65 (1946).   In performing this task,  we find the          Court's  reasoning in Olano instructive.  Cf. Lee v. Marshall, 42                                _____               ___ ___    ________          F.3d  1296, 1299 (9th Cir. 1994) (finding Olano Court's reasoning                                                    _____          transferable to  harmless error  analysis in  habeas case).   The          risks  that  were  run  here  by  retaining  the  alternates were          identical  to  the risks  that  were run  at the  trial  level in          Olano,13  and  the  district   judge's  ability  to  minimize  or          _____          eliminate those risks was the same in both situations.                    The  operative  facts are  as  follows.   Although  the          district  court  retained  the  alternates,  subsequent  physical          contact  between  them  and  the  regular  jurors  occurred  only          sporadically   confined mostly to the beginning of each day (when          all  the jurors  assembled  prior to  the  commencement of  daily          deliberations) and lunch time  (when court security officers were          invariably  present).14   Judge  Young  at  no time  allowed  the                                        ____________________               13In  one respect, treating this case as comparable to Olano                                                                      _____          tilts matters in  the appellants' favor.  There, the undischarged          alternates actually stayed in the jury room during deliberations.          507 U.S.  at 729-30.   Here, they  did not;  indeed, the  regular          jurors  and the  undischarged alternates  were never  in physical          proximity while the deliberative process was ongoing.               14On one occasion  when the  regular jurors were  on a  mid-          morning break, an alternate juror retrieved a plate of delicacies          from  the jury room.   Defense counsel brought  this interlude to          Judge  Young's attention,  and  the judge  immediately agreed  to                                          29          alternates to come within earshot of the deliberating jurors.                    Equally as  important, the  court did not  leave either          set  of venirepersons  uninstructed.   At  the  beginning of  his          charge, Judge  Young  told  the alternates  not  to  discuss  the          substance of the case either among themselves or with the regular          jurors.   He then directed the  regular jurors not to discuss the          case with the alternates.  Near the end of the  charge, the judge          admonished  all the talesmen that "if [the regular jurors are] in          the  presence  of the  alternates or  the  alternates are  in the          presence of  the jurors,  [there is to  be] no talking  about the          case,  no  deliberating about  the  case."   The  regular  jurors          retired  to  the  jury  room  for  their  deliberations, and  the          undischarged  alternates retired  to an  anteroom in  the judge's          chambers  (which  remained  their  base  of  operations  for  the          duration of the deliberations).                                        ____________________          instruct  the  alternates to  stay out  of  the jury  room during          breaks (except  for retrieving  snacks from  the  jury room  when          court security  officers confirmed that a  break in deliberations          had occurred).                 On another  occasion defense counsel voiced suspicion that          a  note from  the jury  to the  judge (requesting  transcripts of          several witnesses' testimony) had been written in the presence of          the  alternates.  At counsels' urging, Judge Young, in the course          of responding to the note in open court, asked each juror whether          "the alternates and the deliberating jurors, or vice versa, [had]          discussed the  substance of the  case" during the  pertinent time          frame.  All the jurors responded in the negative, and Judge Young          reinstructed  the regular jurors not to discuss the case with, or          deliberate  in  the  presence  of,  the  alternate  jurors.   The          defendants took no exception either to the form of the inquiry or          to the instructions that the court gave.                                          30                    The deliberations lasted eleven  days.15  Each morning,          Judge Young asked the regular jurors and the alternate jurors, on          penalty of perjury, whether  they had spoken about the  case with          anyone  since the previous day's  adjournment.  On each occasion,          all the jurors (regular and alternate) responded in the negative.          The  judge reiterated  his instructions  to both the  regular and          alternate  jurors  at  the close  of  every  court  session.   In          addition,  he  routinely  warned   the  venire  that,  when  they          assembled the next morning  before deliberations resumed, "no one          is to talk about the case."                    On this record, we believe that the regular jurors were          well  insulated  from the  risks posed  by  the retention  of the          alternates.   The judge repeatedly instructed the jurors   in far          greater  detail  than  in  Olano    and  those  instructions were                                     _____          delicately   phrased  and   admirably   specific.     Appropriate          prophylactic instructions are a means of preventing the potential          harm  that hovers when a  trial court fails  to dismiss alternate          jurors on schedule.  See Olano, 507 U.S. at 740-41; United States                               ___ _____                      _____________          v.  Sobamowo, 892  F.2d 90,  97 (D.C.  Cir. 1989)  (Ginsburg, J.)              ________          (attaching   great  importance  to   trial  court's  prophylactic          instructions  in holding  failure to  discharge  alternate jurors          harmless); cf. United States v. Ottersburg, 73 F.3d 137, 139 (7th                     ___ _____________    __________          Cir. 1996)  (setting aside verdict and  emphasizing trial court's                                        ____________________               15On the  third day a regular juror had to be excused.  With          counsels' consent, Judge  Young replaced the  lost juror with  an          alternate and instructed the  jurors to begin deliberations anew.          On  appeal,   neither  side   contests  the  propriety   of  this          substitution.                                          31          failure to provide such instructions).  Courts must presume "that          jurors, conscious  of the gravity  of their task,  attend closely          the particular  language of the  trial court's instructions  in a          criminal case,"  Francis  v.  Franklin, 471  U.S.  307,  324  n.9                           _______      ________          (1985), and that they follow those instructions.                    Here, we  have more than the usual presumption that the          jury understood the  instructions and followed  them.  The  court          interrogated the  entire panel   regular  jurors and undischarged          alternates   on a daily basis, and received an unbroken string of          assurances  that the  regular  jurors  had  not spoken  with  the          alternates concerning the substance of  the case, and vice versa.          Just  as it is  fitting for appellate  courts to presume,  in the          absence  of a  contrary indication,  that jurors  follow  a trial          judge's instructions, so, too, it is fitting for appellate courts          to  presume, in the absence of a contrary indication, that jurors          answer a trial judge's questions honestly.                    One  last observation is  telling.  Over  and above the          plenitude  of instructions, there  is another  salient difference          between this case and Ottersburg (the only reported criminal case                                __________          in which a federal  appellate court invalidated a verdict  due to          the trial court's failure to discharge alternate jurors).   Here,          unlike  in  Ottersburg, 76  F.3d  at 139,  the judge  at  no time                      __________          permitted the alternates  to sit in on, or  listen to, the jury's          deliberations (even  as mute  observers).  Hence,  the alternates          had  no  opportunity to  participate  in  the deliberations,  and          nothing  in the  record  plausibly suggests  that they  otherwise                                          32          influenced  the jury's actions.   If the mere  presence of silent          alternates in  the jury room during  ongoing deliberations cannot                     _______________________________________________          in  and of  itself  be deemed  to  chill discourse  or  establish          prejudice,  see Olano,  507 U.S.  at 740-41,  it  is surpassingly                      ___ _____          difficult to imagine how absent (though undischarged) alternates,          properly   instructed,  could   have  a   toxic  effect   on  the          deliberative process.16                    We will  not paint  the lily.   Given  the lack  of any          contact  between  regular  and alternate  jurors  during  ongoing          deliberations,  the  trial   judge's  careful  and   oft-repeated          instructions,   the  venire's  unanimous   disclaimers  that  any          discussions about the case took place between the  two subgroups,          the overall  strength of the prosecution's  evidence on virtually          all  the counts of  conviction, and the  discriminating nature of          the  verdicts that  were returned  (e.g., the jury  acquitted the          appellants  on  sundry  counts  and  also  acquitted  the  fourth          defendant, Herd,  outright), we conclude that  the government has          carried its burden of demonstrating that the outcome of the trial          would  have  been  precisely  the  same  had  the  district court          dismissed the  alternate jurors  when the  jury first  retired to          deliberate.   It follows that because  the appellants suffered no                                        ____________________               16In Cabral v.  Sullivan, 961  F.2d 998 (1st  Cir. 1992),  a                    ______     ________          case  that  antedated  Olano,  we considered  a  civil  analog to                                 _____          Criminal  Rule 24(c) and stated that "[w]hen a trial court allows          an . . .  alternate juror[] to deliberate with the regular jurors          .  .  . an  inherently prejudicial  error  is committed,  and the          substantial  rights of the parties  are violated."   Id. at 1002.                                                               ___          In the instant case, unlike in Cabral, there is neither proof nor                                         ______          reason to  suspect that the  undischarged alternates participated          in the regular jurors' deliberations.                                          33          prejudice  in  consequence of  the  court's bevue,  they  are not          entitled to return to square one.          IV.  DISCOVERY DISPUTES          IV.  DISCOVERY DISPUTES                    The   appellants   stridently  protest   a   series  of          government actions  involving document discovery.   We first deal          with a  claim that implicates  the scope  of the  Jencks Act,  18          U.S.C.       3500,  and   then   treat   the  appellants'   other          asseverations.                             A.  Scope of the Jencks Act.                             A.  Scope of the Jencks Act.                                 _______________________                    The   Jencks  Act  provides  criminal  defendants,  for          purposes  of cross-examination,  with a  limited right  to obtain          certain  witness   statements  that  are   in  the   government's          possession.   That right is subject to  a temporal condition:  it          does   not  vest  until  the  witness  takes  the  stand  in  the          government's case  and completes  his direct  testimony.   Id.                                                                        ___          3500(a).    It  is  also subject  to  categorical,  content-based          restrictions delineated in  the statute: a statement is  not open          to production under the Jencks  Act unless it (i) relates  to the          same subject  matter as  the  witness's direct  testimony, id.                                                                        ___          3500(b), and  (ii) either comprises  grand jury testimony,  id.                                                                        ___          3500(e)(3),  or  falls  within  one  of  two  general classes  of          statements, namely,                    (1) a written statement made by [the] witness                    and signed or  otherwise adopted or  approved                    by him;                    (2)  a stenographic,  mechanical, electrical,                    or  other  recording,   or  a   transcription                    thereof,  which  is a  substantially verbatim                    recital  of an  oral  statement made  by said                    witness  and recorded  contemporaneously with                                          34                    the making of such oral statement . . . .          18 U.S.C.   3500(e)(1)-(2).                    In  this  case,  the  government  agents  who  led  the          investigation instructed  all but the most  senior prosecutors to          refrain  from  taking  notes  during pretrial  interviews.    The          appellants decried this practice in the district court, but Judge          Young  found  that  even  the  deliberate  use  of  investigatory          techniques designed to minimize the production of written reports          would  not violate  the Jencks  Act.   Before us,  the appellants          renew their challenge.  We, too, think that it lacks force.                    The  Jencks  Act  does  not  impose  an  obligation  on          government  agents to record witness interviews  or to take notes          during  such  interviews.   After all,  the  Act applies  only to          recordings,  written statements,  and  notes  that  meet  certain          criteria, not to items that never came into being (whether or not          a  prudent investigator     cynics might  say an  unsophisticated          investigator    would  have  arranged things  differently).   See                                                                        ___          United States v.  Lieberman, 608  F.2d 889, 897  (1st Cir.  1979)          _____________     _________          (rejecting  a claim  that the  government has  "a duty  to create          Jencks Act  material by recording everything  a potential witness          says"), cert. denied, 444 U.S. 1019 (1980); accord  United States                  _____ ______                        ______  _____________          v. Bernard, 625 F.2d  854, 859 (9th Cir. 1980); United  States v.             _______                                      ______________          Head,  586 F.2d  508, 511-12  (5th Cir.  1978); United  States v.          ____                                            ______________          Fielbogen, 494 F. Supp. 806, 814 (S.D.N.Y. 1980), aff'd, 657 F.2d          _________                                         _____          265 (2d Cir. 1981) (table).  It has been suggested  that if there          were evidence  that lawmen  "engaged in manipulative  or coercive                                          35          conduct"  during  the course  of  an audience  with  a particular          witness, the failure to  record that event might  give rise to  a          Jencks Act violation.  Lieberman, 608 F.2d at  897 (dictum).  But                                 _________          this dictum, even if it might be of  some moment in a proper case          (a  matter  on which  we take  no view)  is  cold comfort  to the          appellants.   There is no  proof of such a  scenario here,17 and,          without  such  proof,  government interviews  with  witnesses are          "presumed to have been conducted with regularity."  Id.                                                              ___                    In the absence of a  contrary legislative command   and          none currently exists    the choice among available investigatory          techniques is,  within wide limits,  for the Executive  Branch in          contradistinction  to   the  Judicial  Branch.     The   practice          challenged here is  not beyond  the pale.   Accordingly, we  hold          that the government did not violate the Jencks Act by instructing          agents to minimize note-taking.18                    Still,  we do  not mean  to imply  that we  endorse the          practice.  Eschewing tape recordings and ordering law enforcement          agents  not to  take notes  during pretrial  interviews is  risky                                        ____________________               17The appellants  claim that instructing agents  not to take          notes  constitutes  a  deliberate  strategy   to  manipulate  the          quantity of discoverable material.   But, this is simply  not the          sort of manipulation to which the panel referred in Lieberman.                                                              _________               18In  a related  vein,  we likewise  reject the  appellants'          assertion that the government violated the Jencks Act by parading          law  enforcement officers rather than percipient witnesses before          the  grand jury.  "Hearsay evidence is  a sufficient basis for an          indictment," and  the mere  fact that  the government  chooses to          rely  on hearsay evidence in  presenting its case  before a grand          jury raises "no hint of government misconduct."  United States v.                                                           _____________          Font-Ramirez,  944 F.2d 42, 46 (1st Cir. 1991), cert. denied, 502          ____________                                    _____ ______          U.S. 1065 (1992).                                          36          business      and  not  guaranteed  to  redound   either  to  the          sovereign's credit or  to its  benefit.  By  adopting a "what  we          don't  create can't come back to  haunt us" approach, prosecutors          demean  their primary mission:  to see  that justice is done.  In          more parochial terms, the government also loses  the advantage of          records  that  it  may  subsequently need  to  safeguard  against          witnesses  changing  their  stories or  to  refresh recollections          dimmed by  the passage  of time.   By  and large,  the legitimate          interests  of law  enforcement  will be  better  served by  using          recording equipment and/or taking  accurate notes than by playing          hide-and-seek.                               B.  Delayed Disclosures.                               B.  Delayed Disclosures.                                   ___________________                    The appellants also  complain that delays  attributable          to governmental  foot-dragging unfairly hampered their ability to          cross-examine witnesses.   The  centerpiece of this  complaint is          the appellants' insistence that, in addition to going very slowly          in  creating potentially discoverable  materials, the prosecutors          withheld extant materials, such  as existing notes, under various          pretexts, claiming that the notes comprised attorney work-product          and that they did not  contain substantially verbatim recitals of          witnesses' statements.                    The appellants' complaint is unproductive.  Acting with          commendable  thoroughness, the  district court  reviewed all  the          prosecutors' notes  and kindred materials in  camera to determine          which documents (or portions  of documents) were producible under          the  Jencks Act.    The government  turned  over what  the  court                                          37          ordered  it  to produce  at the  time(s)  when the  court ordered          production to be made.                    In all events, we have held with a regularity bordering          on the  echolalic that "delayed disclosure  claims cannot succeed          unless the  aggrieved  defendant demonstrates  prejudice  arising          from the delay."  Sepulveda, 15 F.3d at 1179  (citing cases); see                            _________                                   ___          also  United  States v.  Saccoccia, 58  F.3d  754, 781  (1st Cir.          ____  ______________     _________          1995), cert.  denied, 116 S. Ct.  1322 (1996).  In  this context,                 _____  ______          demonstrating prejudice demands  red meat and strong  drink   but          the  appellants have  served  up much  less  hearty fare.    They          articulate  how the delayed  disclosures supposedly impeded their          ability to  cross-question witnesses largely by  reference to two          examples.  Neither example is compelling.                    First, the appellants suggest  that they were  unfairly          surprised  because,  after  Nardone's henchman,  Michael  Nelson,          testified  at  trial that  Fitzgerald alone  had given  Nardone a          contract on the life of James Boyden III, they obtained the grand          jury  testimony  of  a  subsequent  witness  (a  law  enforcement          officer) which  indicated that Nardone, in  chatting with Nelson,          implicated both  Houlihan and  Fitzgerald in ordering  the hit.19                     ____          The appellants claim that the inconsistency between the officer's          grand jury testimony,  on one hand, and Nelson's trial testimony,                                        ____________________               19When this inconsistency surfaced, the government contended          that  the grand jury witness  simply made a  mistake, and pointed          out that, according  to the prosecutors' notes,  Nelson stated in          his  pretrial interview  that Fitzgerald alone issued  the order.          At  this juncture the court directed  the prosecutors to disclose          the  summary prepared by a government attorney for the use of the          officer who appeared before the grand jury.                                          38          on  the other hand, could have been exploited to discredit Nelson          on  cross-examination.   We  are skeptical;  given that  Nelson's          statements during his pretrial interview, see supra note  19, and                                                    ___ _____          at  trial were consistent, this tidbit would have been of dubious          value for impeachment purposes.  Moreover, while Nelson was still                                                     ______________________          on the  witness stand,  the appellants  had  possession of  other          _____________________          documents  that  revealed  the  same inconsistency.    For  these          reasons,  we are fully satisfied that any delay in the disclosure          of the  law enforcement  officer's grand  jury testimony  did not          affect the  outcome of  the  trial.   Consequently, the  incident          fails to prove the  appellants' point.  See, e.g.,  United States                                                  ___  ____   _____________          v. Devin, 918 F.2d  280, 290-91 (1st Cir. 1990)  (explaining that             _____          delayed disclosure  of  impeachment  material  does  not  warrant          reversal if the material would not have altered the verdict).                    The second vignette concerns a prosecutor's note to the          effect that Nardone told  Nelson that there were two  reasons why                                                           ___          Sargent  had to  be killed:   first,  because Houlihan  felt that          Sargent  "was a risk" and "could hurt [Houlihan] by talking"; and          second,  "as a showing of  respect to the  Murrays" (a bookmaking          group  to whom  Sargent  was heavily  indebted).   Regarding  the          second  reason,  Nelson  explained that  Fitzgerald  and Houlihan          asked the Murrays  to post  $50,000 bail for  Bobby Levallee,  an          organization  stalwart, in  exchange for  having Sargent  killed.          Because  the government  did  not reveal  this  note until  after          Nelson had completed his  testimony, the appellants' thesis runs,          they were unable to cross-examine him efficaciously.                                          39                    This  proffer, too,  is wide  of the  mark.   Under any          circumstances, the  note has  only marginal evidentiary  value in          light  of the  extensive  proof confirming  Houlihan's desire  to          silence  Sargent in order to keep him from telling the government          what he  knew   a desire that the note itself acknowledges.  Even          more  important,  the appellants  had  sufficient  notice of  the          alternative "gambling  debts" motive well before  Nelson left the          stand.    Nelson himself  testified  on  direct examination  that          Fitzgerald and Houlihan wanted  Sargent killed for "two reasons":          because they believed that the police had coopted him and because                                                                ___          they were concerned about "all [Sargent's] gambling debts."  And,          moreover,  the record indicates that the  appellants had the rest          of  the   prosecutors'  notes   (some  of  which   discussed  the          alternative  motivation) in  hand  before  Nelson  completed  his                                             ______          testimony; indeed,  Houlihan's counsel  relied on those  notes to          elicit  information on  cross-examination about  Sargent's gaming          debts   and  his  connection   to  the  Murrays.     Under  these          circumstances,   no  reversible  error   inhered.     See,  e.g.,                                                                ___   ____          Saccoccia, 58 F.3d at  781 (finding no prejudice from  delay when          _________          defense counsel  obtained information  in time to  prepare cross-          examination); United  States v. Hodge-Balwing, 952  F.2d 607, 609                        ______________    _____________          (1st  Cir.  1991) (finding  no  prejudice from  late  delivery of          documents  when the  prosecutor's opening  statement alerted  the          defense to the same information).                    If more were  needed   and  we doubt that  it is    the          sockdolager is  the district court's volunteered  ruling that the                                          40          appellants  could recall  Nelson  during their  case for  further          cross-examination on  the basis  of the information  disclosed in          the note.   The appellants  chose to let  this opportunity  pass.          The rule is clear that a defendant's failure to recall a witness,          despite permission  to  do so,  undermines a  claim of  prejudice          based  on  a  disclosure  that  materialized  after  the  witness          finished testifying (but  before the  trial ended).   See  United                                                                ___  ______          States v. Arboleda,  929 F.2d  858, 864 (1st  Cir. 1991);  United          ______    ________                                         ______          States v. Dunn, 841 F.2d 1026, 1030 (10th Cir. 1988).          ______    ____                                C.  Supervisory Power.                                C.  Supervisory Power.                                    _________________                    In a  last-ditch effort  to right  a sinking  ship, the          appellants embrace a dictum contained in United States v. Osorio,                                                   _____________    ______          929  F.2d 753, 763 (1st Cir. 1991) ("When confronted with extreme          misconduct and prejudice as a result of  delayed disclosure, this          court  will consider  invoking its  supervisory powers  to secure          enforcement  of better  prosecutorial practice  and reprimand  of          those  who fail to observe it.") (citation and internal quotation          marks omitted).  Based on  this dictum, they ask that  we unleash          our supervisory  power and vacate their convictions  as an object          lesson to  the government.  In the  bargain, they suggest that we          issue  a blanket  rule prohibiting  prosecutors  from instructing          their  colleagues in  law enforcement  not to  take  notes during          witness interviews.20                                        ____________________               20Respecting, as we do,  the coordinate powers of  the other          two  branches of government, we decline to issue any such blanket          proscription.   See supra  Part IV(A) (discussing  particulars of                          ___ _____          appellants' underlying objection).                                          41                    Federal courts should  refrain from dismissing  charges          or  overturning  convictions  merely   as  a  device  to  conform          executive  conduct  to judicially  favored  norms.   Rather,  the          courts'  supervisory power  should be  used in  this way  only if          plain   prosecutorial  misconduct  is   coupled  with  cognizable          prejudice  to  a  particular defendant.    See  United  States v.                                                     ___  ______________          Santana,  6 F.3d  1,  10-11 (1st  Cir.  1993); United  States  v.          _______                                        ______________          Pacheco-Ortiz, 889 F.2d 301, 310 (1st Cir. 1989); see also United          _____________                                     ___ ____ ______          States  v. Hasting, 461 U.S.  499, 507 (1983)  (holding that when          ______     _______          prosecutorial misconduct constitutes no more than harmless error,          no relief is warranted under supervisory power).                    Here, both prerequisites  for judicial intervention are          wanting.   First  and foremost,  the tactics  complained of    if          improper at  all    fall  far  short of  a showing  of  egregious          misconduct  that might  impel  a federal  court  to consider  the          drastic  step  of vacating  a  conviction as  a  sanction against          overzealous prosecutors.  Second, the delayed disclosures did not          harm the  defendants' substantial rights.   See United  States v.                                                      ___ ______________          Walsh, 75  F.3d 1,  8  (1st Cir.  1996) (demonstrating  prejudice          _____          requires more than mere "assertions that the defendant would have          conducted cross-examination differently").                    That ends the  matter.  The supervisory power is strong          medicine  and, as we have  said, "[p]otent elixirs  should not be          casually dispensed."  Santana, 6 F.3d  at 10.  There is no reason                                _______          to write such a prescription in the circumstances of this case.          V.  MISCELLANEOUS          V.  MISCELLANEOUS                                          42                    The appellants, represented by  able counsel, marshal a          plethora of other arguments.  We address some of these arguments,          explaining briefly why we accept or reject them.  The points that          we  do not mention are insubstantial and may be dismissed without          elaboration.                                 A.  Murder for Hire.                                 A.  Murder for Hire.                                     _______________                    Fitzgerald  and  Houlihan,  in  chorus,  challenge  the          sufficiency  of  the  evidence  supporting  their murder-for-hire          convictions arising out of the annihilations of Boyden III (count          15)  and Sargent (count 16),  and the attempts  on Sweeney's life          (count 17).  With  one exception, the sole ground on  which these          challenges rest is the allegation that the prosecution fell short          of establishing the requisite nexus between the use of interstate          facilities  and  the  defendants'  biocidal  activities.21    The          challenge fails.                    The  controlling legal  standard is  prosaic.   "When a          criminal defendant undertakes  a sufficiency  challenge, all  the          evidence,  direct and  circumstantial,  must be  viewed from  the          government's  coign of  vantage, and the  viewer must  accept all          reasonable  inferences  from  it  that are  consistent  with  the          verdict."   United States  v. Valle, 72  F.3d 210, 216  (1st Cir.                      _____________     _____          1995).  Though each element of the  offense must be proven beyond          a reasonable doubt, the government's burden "may  be satisfied by          either  direct  or circumstantial  evidence,  or  any combination                                        ____________________               21The exception  relates to count  15, as to  which Houlihan          offers a  wider-ranging sufficiency  challenge.  We  address that          challenge separately.  See infra Part V(B).                                 ___ _____                                          43          thereof."  United  States v. Gifford, 17 F.3d  462, 467 (1st Cir.                     ______________    _______          1994).   If a rational  jury, indulging all  credibility calls in          favor of the  verdict, could  find the defendant  guilty on  this          basis,  then the inquiry terminates.  See United States v. David,                                                ___ _____________    _____          940 F.2d  722, 730 (1st Cir.  1991), cert. denied, 502  U.S. 1046                                               _____ ______          (1992).                    Moving from  the general  to the specific,  the murder-          for-hire statute makes it unlawful to use or cause another person          to  use "any  facility in  interstate or  foreign commerce,  with          intent that a  murder be committed . . . as consideration for . .          . anything of pecuniary value."  18 U.S.C.   1958.  In this case,          the prosecution  sought to convict  by proving, inter  alia, that                                                          _____  ____          the plotters  used telephone  calls as  a means of  accomplishing          their ends.  The appellants  did not claim below, and do  not now          claim,  that   telephone  lines   fall  outside  the   rubric  of          "facilities in  interstate commerce."   We therefore  assume that          point  in the government's favor, see United States v. Slade, 980                                            ___ _____________    _____          F.2d  27, 30 (1st Cir.  1992) ("It is a  bedrock rule that when a          party  has not presented an  argument to the  district court, she          may not unveil  it in the  court of appeals."); United  States v.                                                          ______________          Zannino, 895  F.2d 1, 17  (1st Cir.)  (noting "settled  appellate          _______          rule" that issues  not briefed and  properly developed on  appeal          are  waived), cert. denied,  494 U.S.  1082 (1990),  and consider                        _____ ______          only the claim that they do  advance:  that the evidence fails to          show  the use  of  telephones in  the  course of  committing  the          charged crimes.                                          44                    In  interpreting  18  U.S.C.    1958,  it  is  entirely          appropriate to look  to case  law construing the  Travel Act,  18          U.S.C.   1952.   See United States v. Edelman,  873 F.2d 791, 794                           ___ _____________    _______          (5th Cir. 1989)  (explaining that Travel  Act jurisprudence is  a          proper referent because "the  obvious purpose" of the murder-for-          hire statute is "to supplement" the Travel Act); see also S. Rep.                                                           ___ ____          No.  225,  98th   Cong.,  1st  Sess.   306,  reprinted  in   1984                                                       _________  __          U.S.C.C.A.N. 3182, 3485 (noting  that the murder-for-hire statute          "follows the format"  of the Travel  Act).  In  United States  v.                                                          _____________          Arruda, 715  F.2d 671  (1st Cir.  1983), a  Travel  Act case,  we          ______          stated:  "There is no requirement that  the use of the interstate          facilities be essential to the scheme:  it is enough that the . .          . use of  interstate facilities makes  easier or facilitates  the          unlawful  activity."    Id.  at 681-82  (citations  and  internal                                  ___          quotation marks omitted).   This is the commonly held  view, see,                                                                       ___          e.g.,  United States  v. Lozano,  839 F.2d  1020, 1022  (4th Cir.          ____   _____________     ______          1988); United States v. Smith, 789 F.2d 196, 203 (3d Cir.), cert.                 _____________    _____                               _____          denied, 479  U.S. 1017 (1986), and we confirm today that the non-          ______          essentiality  principle announced  in Arruda  is embodied  in the                                                ______          murder-for-hire statute.                    The key, then, is whether the jury plausibly could have          found that the appellants actually used a telephone to facilitate          Sargent's and  Boyden  the elder's  deaths  and the  attempts  on          Sweeney's life.   We  hasten to  add, however,  that there is  no          requirement  that  each  accused  use a  facility  in  interstate          commerce, or that each accused intend such a facility to be used,                                          45          or even that each accused know that such a facility probably will          be used.  See Edelman, 874 F.2d at 795; see also United States v.                    ___ _______                   ___ ____ _____________          Heacock,  31  F.3d  249,  255  n.10  (5th  Cir.  1994)  (applying          _______          identical principle under Travel  Act); United States v. Sigalow,                                                  _____________    _______          812  F.2d  783,  785 (2d  Cir.  1987)  (same);  United States  v.                                                          _____________          McPartlin, 595 F.2d 1321,  1361 (7th Cir.) (same), cert.  denied,          _________                                          _____  ______          444 U.S. 833 (1979).  Hence, if the government proves that one of          the participants used the telephone or some comparable interstate          facility  in  furtherance  of   the  scheme,  then  the  required          facilitative nexus is established as to all participants.                    In this case,  we think that the  jury rationally could          find a facilitative nexus  between the use of telephones  and the          criminal  activities underlying  the  counts of  conviction.   By          March  of  1992,  Fitzgerald,  a parole  violator,  had  taken up          involuntary  residence  in a  state  penitentiary.   The  record,          together  with  reasonable   inferences  extractable   therefrom,          permitted the jury  to find  that he made  daily telephone  calls          from  prison  to  an  indicted coconspirator,  John  Doherty,  at          Kerrigan's Flower Shop; and  that Doherty, acting as Fitzgerald's          internuncio, supplied  Nardone with the weaponry  needed to mount          the  attacks.   Telephone records  introduced into  evidence also          indicate that Fitzgerald called  Nardone several times at Lynch's          apartment in and around  the dates on  which the murders were  to          occur.   Since the jury reasonably could regard the various calls          as  an  important link  in the  communicative  chain that  led to                                          46          murder   and  attempted   murder,   the   appellants'   challenge          founders.22                         B.  The Murder of James Boyden III.                         B.  The Murder of James Boyden III.                             ______________________________                    Houlihan  asserts  that  his  convictions  on  count  5          (conspiring to murder James Boyden  III in aid of  racketeering),          count 6 (abetting that  murder), and count 15 (hiring  another to          perform that murder) cannot stand.   His major theme is  that the          government failed to  link him  to the murder  in any  meaningful          way.  We find merit in this proposition.                    To convict Houlihan for conspiring to murder in aid  of          racketeering,  see  18 U.S.C.     1959(a),  or for  abetting  the                         ___          murder,  see  id.,  the government  had  to  prove  that (1)  the                   ___  ___          organization  masterminded by Fitzgerald and Houlihan constituted          a  racketeering enterprise;  (2)  that, depending  on the  count,          Houlihan conspired to commit, or aided and abetted the commission          of,  the  murder;  and  (3)  that Houlihan  participated  in  the          arrangement "for  the purpose of maintaining  or increasing [his]          position  in a [racketeering] enterprise."   Id.   By like token,                                                       ___          under the murder-for-hire statute the government had to prove (1)          that  Houlihan joined  in  causing the  killing  of another,  (2)                                        ____________________               22Although not  an element  of the  offense, it is  pellucid          that  the jury  easily could  have believed  Fitzgerald's actions          vis- -vis  Sargent and  Sweeney were  undertaken with  Houlihan's          knowledge  and consent.    To  cite  just one  example,  Houlihan          personally paid Nardone his  $5,000 "headache elimination" fee at          Kerrigan's Flower Shop  on the day after  Nardone ended Sargent's          life.  Further examples are unnecessary.  It suffices to say that          extensive evidence pointed to  the conclusion that Fitzgerald and          Houlihan   jointly  orchestrated   both  Sargent's   slaying  and          Sweeney's travails.                                          47          paying a  price or  other  consideration, (3)  with the  specific          intent to  commit the  substantive crime  (murder), and  (4) that          interstate  facilities   were  used  by   one  or  more   of  the          participants in the  course of  perpetrating the crime.   See  18                                                                    ___          U.S.C.   1958.                    A  common thread runs through all three counts.  In one          form  or another, the government had to prove beyond a reasonable          doubt  that in the spring  of 1992 Houlihan  "conspired to murder          James Boyden III" (count  5), and/or "aided, abetted, counselled,          commanded  [or]  induced"  that  murder (count  6),  and/or  used          "facilities  in  interstate   commerce  .  .  .   to  hire  other          individuals and  to arrange the  intended murder of  James Boyden          III" (count 15).   Under each of these counts, the government had          to  show at a  bare minimum that Houlihan  intended the murder of          James  Boyden III  to  take place  and  that he  acted  upon that          intent.  See,  e.g., United  States v. Santiago,  872 F.2d  1073,                   ___   ____  ______________    ________          1079  (1st Cir.) (explaining  that proof of  a charged conspiracy          requires, inter alia,  proof of intent to  commit the substantive                    _____ ____          offense),  cert.  denied, 492  U.S. 910  &  493 U.S.  832 (1989);                     _____  ______          United States v. Loder, 23 F.3d 586, 591 (1st Cir. 1994) (stating          _____________    _____          that an aider and abettor must "consciously share[]  the specific          criminal   intent  of   the  principals");   18  U.S.C.      1958          (specifically  requiring  proof  that the  defendant  acted  with          "intent  that a murder be committed").   In other words, as Judge          Young  instructed  the  jury, the  government  had  to show  that          Houlihan "intentionally  arranged for the murder  of James Boyden                                          48          III  by Joseph Nardone," or  "aided and abetted  that crime," and          that he had the "specific intent" of causing the murder.                    We  have combed  the  record in  light  of this  highly          specific subset  of charges  to determine whether  the government          satisfied  its burden of  proving beyond a  reasonable doubt that          Houlihan perpetrated  these three  interrelated crimes.   We have          come  up empty.  In  our judgment there  is insufficient evidence          that Houlihan,  whatever other atrocities he  may have committed,          intended to bring  about the  execution of James  Boyden III,  or          that he participated  in any  culpable way in  the commission  of          that crime.                    The evidence  depicts Fitzgerald  as the leader  of the          organization  and  Houlihan   as  his  second-in-command.     The          government's theory is that Nardone  killed Boyden III, and  that          Fitzgerald and Houlihan jointly  directed him to do so.   But the          government's star  witness, Nelson, testified that,  according to          Nardone, Fitzgerald alone ordered the murder.23                    This  seems reasonable  in view  of the  fact that  the          murder grew out  of events surrounding  the assassination of  the          victim's  son   (Boyden  IV).     The  younger   Boyden,  against          Fitzgerald's explicit  warning, had continued to  sell cocaine in          the "sales territory" assigned  to Jennierose Lynch (Fitzgerald's          paramour).  After several violent encounters, Boyden IV turned up                                        ____________________               23Indeed,  when it was pointed out that a grand jury witness          had  testified  otherwise,  the  government  protested  that  the          witness had made a  mistake.  See supra note 19.   The grand jury                                        ___ _____          testimony was not admitted at the trial.                                          49          dead.  The government  charged Fitzgerald, Lynch, and Herd    but          not Houlihan   with that murder.  As recounted earlier, the judge          granted Fitzgerald's motion for a mistrial on those  charges (and          he presumably remains  subject to retrial); the judge ordered the          charges against Lynch dropped as part of an overall plea bargain;          and the jury acquitted Herd.                    The record strongly suggests  that the son's murder set          the stage for  the father's  murder, and that  the killings  were          related.  The government makes no effort to implicate Houlihan in          the former crime, and there is  only a tenuous set of  inferences          linking him to the latter crime.                    Virtually the  only intimation that  Houlihan may  have          played  a role in the killing of  Boyden III comes from Sargent's          tape-recorded  statement  during  which  the  following  colloquy          transpired (references  in the colloquy to "Boyden, Sr." refer to          James Boyden III):                    SARGENT:   I was  having a couple  of drinks,                    SARGENT:                    and [Houlihan]  mentioned .  . . that    that                    there's two . . . that's going to go.                                    *     *     *                    . . . John  Houlihan mentioned before that he                    could have somebody kill anybody he wants.                                    *     *     *                    DET. HARRIS:  There was the homicide of James                    DET. HARRIS:                    Boyden, Sr.                    SARGENT:  Right.                    SARGENT:                    DET. HARRIS:   Would  you tell us  about that                    DET. HARRIS:                    homicide?                    SARGENT:   All I know is when I had talked to                    SARGENT:                                          50                    John in  the bar, he had  mentioned there was                    going to be two  . . . people dead,  and that                    night   that same night that I talked to him,                    that's when Boyden Sr. got killed . . .                    DET. HARRIS:   How  many hours before  Boyden                    DET. HARRIS:                    Sr.  was  killed did  that  conversation with                    [Houlihan] take place?                    SARGENT:  I'd say about three hours.                    SARGENT:          Passing  obvious  questions   about  the   reliability  of   this          uncorroborated hearsay statement, see supra note 7 & accompanying                                            ___ _____          text,  this  seems  too porous  a  foundation  on  which to  rest          homicide charges.                    Laying  out   the  inferential   chain  on  which   the          government's theory  depends illustrates its weakness.   From the          dialogue that we have quoted, the government suggests that a jury          could plausibly infer that Houlihan was referring to the upcoming          murder of James Boyden III in his "two .  . . that's going to go"          comment; and that, from this  inference, the jury could plausibly          infer  that Houlihan  intended  to bring  about  that murder  and          participated in it in  some meaningful way.   This is simply  too          great a stretch.   Houlihan did not mention  James Boyden III  in          his  conversation with  Sargent, and  it is  not even  clear that          Sargent  understood Houlihan  to be  referring to  any particular          individuals.  Rather, the import of Sargent's comment seems to be          that succeeding  events filled in  the blanks.   And  even if  we          accept  the first  suggested  inference, the  record hardly  will          support the further inference that Houlihan had a specific intent          to murder James Boyden III, or that he abetted the ensuing crime.          At  most, the  conversation suggests  an awareness  of  a planned                                          51          slaying, not necessarily participation in it.                    The   government  tries  to   buttress  these  strained          inferences  by  pointing  to  Sargent's parroting  of  Houlihan's          statement  that  he  "could   have  somebody  kill  anybody"  and          labelling this as evidence  that Houlihan directed the commission          of  this particular murder.   But that argument  proves too much.          On the  government's reasoning, Houlihan could  have been charged          and  convicted of  any murder.   The  government also  points out                             ___          that, on  the day after the murder,  Nardone collected his fee at          Kerrigan's Flower Shop.   Because this  bore some resemblance  to          the  method  of  payment  that Houlihan  employed  after  Nardone          murdered  Sargent, see supra note  22, the government  asks us to                             ___ _____          infer that Houlihan  also must  have arranged this  payment.   We          think  for two reasons  that the suggested  inference is dubious.          First, the  difference in payment methodology is significant:  on          the  latter occasion  (Sargent's murder),  the government  proved          that Houlihan personally paid  the fee to Nardone; on  the former          occasion  (Boyden the elder's murder),  it did not.   Second, the          record shows that Fitzgerald not only ordered the murder of James          Boyden III but also, though imprisoned, remained in daily contact          with Doherty, and that  Doherty (who was based at  Kerrigan's) or          any of several other underlings could have arranged the payment.                    Even   so,  given  the   working  relationship  between          Houlihan  and Fitzgerald and their use of Nardone as a triggerman          in connection with Sargent's murder and the attempts on Sweeney's          life, the question of  evidentiary sufficiency is close.   In the                                          52          end, however, we do  not think that  the evidence measures up  to          the requirement   which we apply de novo   that a reasonable jury          be able  to find each  element of the  crime to have  been proven          beyond  a  reasonable  doubt.    Given   Nelson's  uncontradicted          testimony that only one individual   Fitzgerald    sanctioned the          execution of James Boyden  III, and also given the  nexus between          the Boydens' murders,  we believe  that the  chain of  inferences          forged by the prosecution is too loose (albeit by the slimmest of          margins) to hold Houlihan  criminally responsible for the charged          crimes.                                    C.  Severance.                                    C.  Severance.                                        _________                    The  reader will  recall  that the  indictment  charged          Herd, Lynch, and Fitzgerald   but not Houlihan and Nardone   with          offenses related to the murder of James Boyden  IV.  Houlihan and          Nardone contend that the  court had an obligation to  sever their          trials from  the trial of  the counts  relating to the  Boyden IV          murder.24  We disagree.                    When   several  defendants  are   named  in  a  unified          indictment,  there is  a strong presumption  that they  should be          tried together.  See Zafiro v. United States, 506 U.S.  534, 538-                           ___ ______    _____________          39 (1993); O'Bryant, 998 F.2d at 25.  To obtain a severance under                     ________          such   circumstances,  a   defendant  must   demonstrate  extreme          prejudice, such as by showing a "serious risk that a joint  trial                                        ____________________               24Ironically, none of the counts related to this murder bore          fruit:  the jury found Herd not guilty; the court  relieved Lynch          of  responsibility when she  pleaded guilty to  other counts; and          the court granted Fitzgerald a mistrial.                                          53          would compromise  a specific trial right," or  would "prevent the          jury from making  a reliable judgment about  guilt or innocence."          Zafiro, 506 U.S. at 539.          ______                    Houlihan and Nardone cannot scale these heights.  Their          central thesis  is that the government's  evidence concerning the          Boyden IV murder tended  to show that the victim  was slaughtered          in an  organization-related turf battle, and therefore threatened          to infect the  jury's consideration  of other counts.   But  they          dress this  thesis in the  gossamer vestments of  speculation and          surmise.  That is not enough.  "There is always some prejudice in          any  trial  where more  than one  offense  or offender  are tried          together   but such `garden variety' prejudice, in and of itself,          will not suffice" as a basis for obligatory severance.  O'Bryant,                                                                  ________          898 F.2d at 246.                    To  be sure, there is  a gray area  in which reasonable          people  might disagree about the advisability of a severance.  In          the vast majority  of those cases, however, the  severance battle          is conclusively won or lost in the district court.  See O'Bryant,                                                              ___ ________          998 F.2d at 25  (explaining that the court of  appeals ordinarily          should defer to the district  court's evaluation of the necessity          for separate trials); United States v. Natanel, 938 F.2d 302, 308                                _____________    _______          (1st Cir. 1991) (holding that a denial  of severance will only be          reversed for a "manifest abuse of discretion"), cert. denied, 502                                                          _____ ______          U.S.  1079 (1992).   This  case falls  within the  sweep  of that          generality, not within the  long-odds exception to it.   Not only          is the inference of  undue prejudice that the appellants  seek to                                          54          draw  somewhat attenuated,  but also  any possible  prejudice was          dissipated by the trial court's  firm, carefully worded, and oft-          repeated  instructions  to  the  jurors,   forbidding  them  from          considering  the evidence anent the  murder of Boyden the younger          in deciding the charges against either Houlihan or Nardone.25  On          this record, we are confident that the trial court  did not abuse          its considerable discretion in  denying the requested  severance.          See,  e.g., Boylan, 998 F.2d at 25; United States v. Gomez-Pabon,          ___   ____  ______                  _____________    ___________          911 F.2d 847, 859-60 (1st Cir. 1990), cert. denied, 498 U.S. 1074                                                _____ ______          (1991).                           D.  The Ford/McDonald Conundrum.                           D.  The Ford/McDonald Conundrum.                               ___________________________                    At trial  the government  called Steven Ford  and Edwin          McDonald as witnesses  regarding the murder  of James Boyden  IV.          Houlihan    and    Nardone   successfully    solicited   limiting          instructions.   Prior  to  each witness's  testimony Judge  Young          admonished  the  jury  that  the testimony  was  admissible  only          against  Fitzgerald, Herd, and Lynch, and not against Houlihan or          Nardone.   Notwithstanding these limiting  instructions, Houlihan          and  Nardone asked to cross-examine Ford and McDonald.  The court          blocked that maneuver.   Houlihan and Nardone press the  point in          this  venue,  alleging that  the  court's  ruling violated  their          confrontation   rights  and  otherwise  constituted  an  improper          exercise of discretion.                                        ____________________               25The   court  enhanced   the  efficacy   of   the  limiting          instructions by  insisting  that all  the  government's  evidence          relating  to this murder be presented compactly at the same point          in  the trial.   This is a  salutary practice, and  we commend it          generally to trial courts confronted with analogous situations.                                          55                    To demonstrate a violation of the Confrontation Clause,          a  defendant must show that  he was "prohibited  from engaging in          otherwise  appropriate  cross-examination   designed  to  show  a          prototypical form  of bias  on the  part  of the  witness."   Van                                                                        ___          Arsdall, 475  U.S. at 680.  Here, there was no abridgement of the          _______          defendants'  constitutional  rights.   The  Confrontation  Clause          demands that a  defendant have  the opportunity  to confront  and          cross-examine  the witnesses against him; at least in the absence                                       ___________          of special circumstances   and none appear here   the Clause does          not  create  a right  to  confront or  cross-examine  persons who          appear  as  witnesses exclusively  against  others  (even if  the          others  are codefendants in a joint trial).  Because neither Ford          nor McDonald was  a witness "against" either Houlihan or Nardone,          the constitutional claim is stillborn.                    Absent  a  constitutional violation,  "appellate courts          will grant  relief from  the shackling of  cross-examination only          for manifest  abuse of discretion."  Boylan, 898 F.2d at 254.  We                                               ______          discern no trace of abuse in  this instance.  Despite the lack of          cross-examination,26  the  limiting instructions  fully protected          Houlihan's  and  Nardone's  legitimate  interests.   Furthermore,          allowing counsel  for Houlihan and Nardone  to cross-examine Ford          and  McDonald could well have had a boomerang effect, leading the          jury to believe that, contrary  to the judge's instructions,  the          testimony  had  some  relevance  to  the  charges  against  their                                        ____________________               26Of course, these witnesses did not emerge unscathed.  Ford          and McDonald  were vigorously  cross-examined by counsel  for the          implicated defendants, Fitzgerald included.                                          56          clients.   Hence, the restriction on  cross-examination was well-          tailored to the occasion.                     E.  Rulings Related to the Partial Mistrial.                     E.  Rulings Related to the Partial Mistrial.                         _______________________________________                    After granting  Fitzgerald  a partial  mistrial on  the          counts  pertaining to the murder of James Boyden IV, the district          court  refused to  grant his  motion to  strike the  testimony of          three witnesses, each of whom testified to some extent about that          murder,27 or in  the alternative,  to declare a  mistrial on  the          remaining counts against him.   Before us, Fitzgerald claims that          the  testimony  had no  relevance  to the  surviving  counts, and          included details  about the  slaying of  the younger  Boyden that          might well have horrified the jurors and prejudiced  them against          him.                    We  review  the district  court's  ruling  to admit  or          exclude particular  evidence for abuse of discretion.  See United                                                                 ___ ______          States  v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995); United          ______     ____________                                    ______          States  v. Holmquist,  36 F.3d  154, 163  (1st Cir.  1994), cert.          ______     _________                                        _____          denied, 115  S. Ct. 1797 (1995).   The same  standard pertains to          ______          motions to  strike evidence previously admitted.   See Sepulveda,                                                             ___ _________          15 F.3d at  1184.  Here,  the district court styled  the disputed          testimony as being "probative . . . of other counts in the case,"          and   denied  the  motion  to  strike  on  that  basis.    Having          scrutinized  the  testimony in  light  of  the surviving  charges          against  Fitzgerald,  we   are  persuaded  that,  as   Fitzgerald                                        ____________________               27The witnesses in question  are Veronica Boyden (the mother          of  James  Boyden IV),  Marie  Boyden-Connors  (his sister),  and          Frances Hannigan (a former owner of Kerrigan's Flower Shop).                                          57          maintains, it was prejudicial  to some degree.   But that is  not          the end of the road.  "[A]ll evidence is meant to be prejudicial;          it  is  only unfair  prejudice which  must  be avoided."   United                       ______                                        ______          States v. Rodriguez-Estrada,  877 F.2d 153,  156 (1st Cir.  1989)          ______    _________________          (emphasis in original).  Thus, our inquiry must proceed.                    Fitzgerald  cast  the  motion  to  strike  in  "all  or          nothing"  terms.   In ruling  on it,  the  district court  had to          compose  a balance between the probative value of the evidence as          a whole and the risk of unfair prejudice attendant to  keeping it          before the jury.  See Fed. R. Evid. 403.  And though the evidence                            ___          was  prejudicial in  a sense,  it was  also plainly  probative of          Fitzgerald's role  as the kingpin  in the  organization and  bore          directly on the remaining charges against him.28                    While  the  question  is   admittedly  close,  we   are          unprepared to say that the evidence's unfairly prejudicial impact          substantially outweighed its probative worth.  "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 weighting of  probative                                        ____________________               28A  few  examples  may assist  in  giving  texture to  this          conclusion.   Veronica Boyden testified that  she heard Lynch, an          indicted coconspirator,  threaten  to call  Fitzgerald  if  James          Boyden  IV continued to poach on her sales territory.  Similarly,          Boyden-Connors testified  that Fitzgerald himself  warned her  to          keep  her  brother  away  from  Lynch's  territory.    Hannigan's          testimony, overall,  related more to the  structure and operating          practices of the Fitzgerald-Houlihan organization and less to the          slaying of James  Boyden IV.   By way  of illustration,  Hannigan          testified at  length  about Fitzgerald's  presence at  Kerrigan's          Flower  Shop,  his  meetings  there  with  other  members of  the          conspiracy, and  his daily  telephone calls to  Doherty from  his          prison cell during the period of his immurement.                                          58          value and unfair effect."  Freeman v. Package Mach. Co., 865 F.2d                                     _______    _________________          1331,  1340 (1st Cir. 1988).   This is not such  an occasion.  It          follows that the  lower court  did not misuse  its discretion  in          denying both  Fitzgerald's motion  to strike and  his alternative          motion to declare an across-the-board mistrial.                           F.  The Armed Robbery Reference.                           F.  The Armed Robbery Reference.                               ___________________________                    Nardone had also been  charged with committing  several          armed  robberies.  The  district court severed  the armed robbery          counts  before trial.    When Nelson  (one  of Nardone's  alleged          coconspirators) testified, Houlihan's counsel cross-examined him.          In the  course of the  cross-examination, the lawyer  proffered a          copy  of Nelson's cooperation agreement with  the government.  No          objection   appearing,  the  court  admitted  the  document  into          evidence.   Appended  to the  cooperation agreement  (now a  full          exhibit)  was a copy of  the information that  the government had          filed against Nelson (which  contained, inter alia, a  count that                                                  _____ ____          described an  alleged Nelson/Nardone  armed robbery).   Four days          later, Nardone's counsel  asked the district court  to delete all          references to  him from the exhibit  before it went to  the jury.          The court refused.  Nardone assigns error.  We uphold the ruling.                    There  is danger  in  delay,  and  the  contemporaneous          objection rule is, for  the most part, strictly enforced  in this          circuit.  See, e.g.,  United States v.  Taylor, 54 F.3d 967,  972                    ___  ____   _____________     ______          (1st  Cir. 1995); United States  v. Griffin, 818  F.2d 97, 99-100                            _____________     _______          (1st Cir.), cert. denied, 484 U.S. 844 (1987).  While  it is true                      _____ ______          in  this  case that  Nardone's  attorney  ultimately objected,  a                                          59          belated objection does not cure the original default.                    To be sure,  we might  be impelled to  intervene if  we          thought that,  despite the  lack of a  contemporaneous objection,          the district court  committed plain error  by refusing to  redact          the references to Nardone which appeared in the information.  See                                                                        ___          Olano, 507 U.S. at  732-37 (discussing dimensions of plain  error          _____          review); see also  Fed. R. Crim.  P. 52(b).   But here, no  plain                   ___ ____          error looms.  During cross-examination of Nelson   two days after                                                                      _____          Houlihan's  counsel  introduced  the cooperation  agreement  into          evidence without objection and  two days before Nardone's counsel                                                   ______          broached the  idea of  redaction    the latter  questioned Nelson          extensively about the armed robbery and drug conspiracy described          in  the  information.   Although  these  questions were  artfully          phrased   to  avoid   any   explicit   reference   to   Nardone's          participation in  those crimes, we  believe that this  harping on          the  contents of  the information  bolsters the  district court's          decision not to  excuse the lack of a  contemporaneous objection.          We  conclude,   therefore,  that  the  court   acted  within  its          discretion  in declining to relax the usual rule and in rejecting          Nardone's tardy request for redaction.29                                G.  Jury Instructions.                                G.  Jury Instructions.                                    _________________                                        ____________________               29As  an aside,  we  note that  there is  no inkling  of any          prejudice stemming from  this ruling.   For one  thing, the  jury          acquitted Nardone on several counts, so it is impossible to argue          convincingly  that  the   unredacted  information   irretrievably          poisoned  the jurors against him.   For another  thing, given the          powerful  evidentiary strands  that tied  Nardone tightly  to two          brutal  murders and several other murder  attempts, we doubt that          the  references about  which he  now complains  could conceivably          have altered the jury's verdicts.                                          60                    The appellants  posit that the district  court's charge          did  not impart the degree of participation required to convict a          defendant of conspiracy  charges under  the Racketeer  Influenced          and  Corrupt Organizations  Act (RICO),  18 U.S.C.     1961-1969.          The  RICO statute criminalizes  "conduct[ing] or participat[ing],          directly  or  indirectly, in  the  conduct  of [an]  enterprise's          affairs" through a pattern of racketeering activity.  18 U.S.C.            1962(c).   To  convey this  element of  the RICO  offenses, Judge          Young instructed the jury that  the prosecution must prove beyond          a reasonable doubt,                    that by engaging in a pattern of racketeering                    activity  the specific individual accused . .                    . conducted or participated in the conduct of                    the  enterprise's affairs.   The term conduct                    and   participate  in   the  conduct   of  an                    enterprise includes the performance  of acts,                    functions or  duties which are related to the                    operation of the enterprise.  A person may be                    found to  participate in  the conduct  of the                    enterprise even though he  has no part in the                    management or control of the enterprise.                    The appellants fault  this instruction because it  told          the jury  that a defendant could  be found guilty even  if he did          not participate "in the management or control of the enterprise."          In their view, the Court's opinion in Reves v. Ernst & Young, 507                                                _____    _____________          U.S.  170 (1993), signifies the opposite.   But this asseveration          misconstrues  Reves.   There,  the  Court  interpreted the  words                        _____          "conduct or participate" as they  appear in section 1962(c),  and          determined that those  words require a defendant's  participation          in either "the operation or management of the enterprise itself."          Id. at  185.  But because  the defendant in Reves  was an outside          ___                                         _____                                          61          accounting firm that had only a contractual relationship with the          allegedly corrupt  enterprise   it  audited the books  and issued          financial  reports,  but neither  controlled  the  enterprise nor          participated  in  either  its  operation  or  management     RICO          liability did not attach.  See id. at 186.                                     ___ ___                    The  case  at  hand  is of  a  distinctively  different          stripe.    Unlike  the accountants  in  Reves,  who were  classic                                                  _____          "outsiders,"  the appellants here  are quintessential "insiders,"          that is,  persons whom  the  evidence places  in the  maw of  the          criminal activity.30   We have previously held  that insiders who          are  integral  to  carrying  out  the  enterprise's  racketeering          activities    and the appellants  clearly fit that  description            come  within  the definitional  sweep  of section  1962(c).   See                                                                        ___          United  States v. Hurley,  63 F.3d  1, 9  (1st Cir.  1995), cert.          ______________    ______                                    _____          denied, 116 S. Ct.  1322 (1996); United States v.  Oreto, 37 F.3d          ______                           _____________     _____          739,  750-51 (1st  Cir.  1994), cert.  denied,  115 S.  Ct.  1161                                          _____  ______          (1995).  The instructions given in this case are  in all material          respects identical to those that we approved in Hurley and Oreto.                                                          ______     _____          Consequently, we reject this  assignment of error without further                                        ____________________               30Nardone's claim  that he was an  independent contractor is          imaginative  but unconvincing.   The  evidence supports  the view          that  Nardone was an insider.  He maintained regular contact with          Fitzgerald   and  Houlihan   throughout  the   duration   of  the          conspiracy; he obtained his armaments directly  from them; and he          took orders from them.  Indeed, Nardone's description  of himself          as the  organization's "hit  man" and "headache  man" belies  his          more recently manufactured "independent contractor" label.                                          62          elaboration.31                                   H.  Forfeiture.                                   H.  Forfeiture.                                       __________                    Houlihan contends that the government failed to produce          sufficient evidence to  support the forfeiture of a house located          at 80  Ferncroft Road, Tewksbury, Massachusetts.   The government          lodged the forfeiture count  under 18 U.S.C.   1963(a)32  and the          jury  found in  its favor.   The  property had  been deeded  by a          third-party  seller to  Francis Jackson  (Houlihan's uncle),  and          Houlihan's contention  is that, because title  stood in Jackson's          name, the property could  not be forfeited in consequence  of his          (Houlihan's) peccadilloes.                    "[C]riminal forfeiture is a punishment, not a  separate          criminal  offense."    Saccoccia, 58  F.3d  at  783.   In  such a                                 _________                                        ____________________               31The appellants also claim that the district court erred by          refusing  to repeat  its  concededly correct  definition of  what          constitutes a  racketeering "enterprise"  in its  instructions to          the jury on those counts that charged murder and attempted murder          in aid of racketeering.  Judge Young chose instead to incorporate          by  reference his correct definition  of a RICO enterprise (given          to the  jury earlier in  the charge); and,  in the same  vein, he          specifically  informed the  jury  that, as  to all  racketeering-          related  counts, they  must find the  existence of  an enterprise          meeting the statutory criteria as an element of each offense.  In          light  of the perfectly sensible  course taken by  the judge, the          appellants'  claim  is  unfounded.    A  trial  court  has  broad          discretion to formulate jury instructions as it sees fit, as long          as it  touches all the bases.  See United States v. DeStefano, 59                                         ___ _____________    _________          F.3d  1,  4 (1st  Cir.  1995).   Here,  taking the  charge  as an          integrated whole, see,  e.g., United States v.  Cintolo, 818 F.2d                            ___   ____  _____________     _______          980, 1003 (1st Cir. 1987), cert. denied, 484 U.S. 913 (1988),  we                                     _____ ______          find no error.               32Insofar  as it  is  germane to  Houlihan's situation,  the          statute provides in substance that a  RICO offender shall forfeit          to  the  government  any  property  interest  or  thing of  value          acquired  with the  proceeds of  racketeering  activity.   See 18                                                                     ___          U.S.C.   1963(a).                                          63          proceeding,  the government  can satisfy its  burden of  proof by          either direct or circumstantial  evidence.  See id.  at 782.   In                                                      ___ ___          this  instance  we  conclude  without  serious  question  that  a          rational factfinder could  determine    as this jury  did    that          Houlihan  was the de  facto owner of  the house, and  that it had          been   purchased   with   proceeds  derived   from   racketeering          activity.33                    Real estate  agents testified  that they  took Houlihan          and  his wife,  along  with Jackson,  on  tours of  the  dwelling          several  times during 1993; that  Houlihan told them  that he was          "interested" in  buying it;  that Houlihan attended  the pre-sale          inspection  and the two closings that proved to be necessary; and          that the property was  purchased entirely for cash (approximately          $195,000).  And,  moreover, both  Houlihan and his  wife were  in          residence at the premises  when the authorities arrested Houlihan          in October of 1993.                    These pieces of evidence combine to form a picture that                                        ____________________               33The district court instructed the jury that the government          had the  burden of  proving entitlement  to  forfeiture beyond  a          reasonable doubt.  The  proof here is capable of  satisfying that          standard.  We note, however   although we leave the question open            that the government may have conceded too much.  Compare United                                                             _______ ______          States v. Tanner, 61 F.3d 231,  234 (4th Cir. 1995) (holding that          ______    ______          criminal   forfeiture  under   21   U.S.C.      853  requires   a          preponderance  of the  evidence,  not proof  beyond a  reasonable          doubt), cert. denied, 116 S. Ct. 925 (1996) and United States  v.                  _____ ______                            _____________          Elgersma, 971 F.2d 690,  695 (11th Cir. 1992) (en  banc) (holding          ________          that the preponderance-of-the-evidence standard applies generally          in criminal forfeiture cases involving drug proceeds) with United                                                                ____ ______          States v. Pelullo, 14 F.3d 881, 906 (3d  Cir. 1994) (holding that          ______    _______          government, in a criminal forfeiture proceeding under 18 U.S.C.            1963(a), must prove  beyond a reasonable doubt that  the targeted          property was derived from the defendant's racketeering activity).                                          64          reveals  Houlihan as the actual  owner of the  home in Tewksbury,          with Jackson serving merely  as a straw.  Then, too, the evidence          is  reinforced by the utter  absence of any  proof indicating how          Jackson  might have acquired so  large an amount  of cash.  Given          the  totality of the circumstances, the jury was entitled to find          that  the   house  was  forfeitable  as  a  fruit  of  Houlihan's          racketeering.  See id.  ("Jurors, after all, are not  expected to                         ___ ___          resist common-sense  inferences based  on the realities  of human          experience.").                                   I.  Sentencing.                                   I.  Sentencing.                                       __________                    The  sentences  imposed  by  the  district   court  are          unremarkable in  most respects.   The sole  exception relates  to          count  20.   That count  charged Fitzgerald  and  Houlihan, among          others,  with  conspiracy  to distribute  a  controlled substance          (cocaine) in violation of 21 U.S.C.    846.  As to Fitzgerald and          Houlihan,  Judge  Young  imposed  contingent  sentences  of  life          imprisonment,  to take effect "only  if the sentence  on count 19          [which charged  a continuing criminal enterprise  in violation of          18  U.S.C.   848] is reversed [or] otherwise dismissed."  Because          we  affirm  the   conviction  and  sentence  on   count  19,  the          contingency  that Judge  Young envisioned  has  not materialized.          Hence, we now vacate  Fitzgerald's and Houlihan's convictions and          sentences on count 20.  We explain briefly.                    If an indictment charges a defendant with participating          in both a conspiracy and a  continuing criminal enterprise (CCE),          and if the former is used as a predicate act to prove the latter,                                          65          then the conspiracy is in actuality a lesser-included offense  of          the CCE charge, and  the defendant may not lawfully  be sentenced          for  both crimes.  See United States v. Rivera-Martinez, 931 F.2d                             ___ _____________    _______________          148, 152-53  (1st  Cir.),  cert. denied,  502  U.S.  862  (1991);                                     _____ ______          Stratton v.  United States, 862  F.2d 7,  9 (1st Cir.  1988) (per          ________     _____________          curiam).  To do  otherwise would result in cumulative  punishment          violative of the Double  Jeopardy Clause.  See Jeffers  v. United                                                     ___ _______     ______          States,  432 U.S.  137,  154-58 (1977)  (plurality op.);  Rivera-          ______                                                    _______          Martinez, 931 F.2d at 152-53.          ________                    We need  not wax  longiloquent, for the  government, to          its  credit,  concedes  the  point.    Thus,  our  affirmance  of          Fitzgerald's and Houlihan's convictions and sentences on count 19          necessitates the  vacation of their convictions  and sentences on          count 20.  See Rivera-Martinez, 931 F.2d at 153 (holding that the                     ___ _______________          Double  Jeopardy  Clause  requires  vacation  of  conviction  and          sentence on conspiracy  count when a  defendant is convicted  and          sentenced on both conspiracy and CCE counts).          VI.  CONCLUSION          VI.  CONCLUSION                    We  need  go  no further.    For  the  reasons we  have          discussed at  length   perhaps at too much length   we affirm the          convictions  and  sentences  of   all  three  appellants  in  all          respects, save only for (a) Houlihan's convictions on counts 5, 6          and 15 (which are reversed), and (b)  Fitzgerald's and Houlihan's          convictions on count 20 (which are vacated).                    So Ordered.                    So Ordered.                    __________                                          66
