
USCA1 Opinion

	




          November 3, 1995  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1094                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               LUIS RAUL RIVERA-GOMEZ,                                Defendant, Appellant.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this court  issued on October  12, 1995,  is          corrected as follows:          On  page  7, line  20,  change "is  only  admissible" to  "may be          excluded"                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1094                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               LUIS RAUL RIVERA-GOMEZ,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                              _________________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                             and Gorton,* District Judge.                                          ______________                              _________________________               Carlos   A.   Vazquez-Alvarez,   Assistant  Federal   Public               _____________________________          Defender,  with  whom  Benicio  Sanchez  Rivera,  Federal  Public                                 ________________________          Defender, was on brief, for appellant.                Jose  A. Quiles-Espinosa,  Senior Litigation  Counsel, with                ________________________          whom Guillermo Gil, United States Attorney, and Edwin O. Vazquez,               _____________                              ________________          Assistant United States Attorney,  were on brief, for  the United          States.                              _________________________                                   October 12, 1995                              _________________________          _______________          *Of the District of Massachusetts, sitting by designation.                    SELYA,  Circuit Judge.    A  jury convicted  defendant-                    SELYA,  Circuit Judge.                            _____________          appellant Luis  Raul Rivera-Gomez on three  counts of carjacking,          18 U.S.C.   2119, and three counts of aiding and abetting the use          and carriage  of firearms during  and in relation  to a crime  of          violence, 18  U.S.C.    2(a), 924(c).   In terms of  prison time,          the  trial  judge   imposed  concurrent  180-month  incarcerative          sentences for the first two carjacking counts, a sentence of life          imprisonment for  the third carjacking, and  concurrent sentences          of five years, to  run consecutively to the other  sentences, for          the  firearms  counts.   This  appeal  challenges an  evidentiary          ruling, a  case management  ruling, and the  constitutionality of          the life sentence.          I. BACKGROUND          I. BACKGROUND                    The evidence adduced at  trial involved three  separate          carjacking  incidents.    We   sketch  the  facts  as  the   jury          warrantably  could have  found  them,  resolving all  evidentiary          conflicts in  the government's favor and  adopting all reasonable          inferences therefrom that support the verdict.                    The first carjacking occurred on December 3, 1993.  The          victim, Cesar Correa  Rivera (Correa), had driven  a friend home.          While they  were  parked  outside  her abode,  a  vehicle  nudged          Correa's car.  Not knowing the vehicle or trusting its occupants,          Correa  tried to flee.   After a  brief chase, the  rogue vehicle          blocked Correa's path  and two  armed men alighted.   One of  the          men,  later identified  as Jose  Roman Hernandez  (Roman), struck          Correa on  the head twice  with his revolver  and ordered him  to                                          3          relinquish  his  valuables.   Meanwhile,  the  second man,  later          identified as Rivera-Gomez, threatened  Correa's companion with a          gun.  Appellant eventually ordered the victims to kneel and stare          at the ground.   Roman then departed in the  carjackers' original          vehicle, leaving appellant to drive Correa's automobile.                    Four days  later, the  same two marauders  assaulted an          elderly retired couple, Rufino  Garcia Maldonado (Garcia) and his          wife, Clara.  The  assault occurred when Clara left  the couple's          car  to  open the  gate  leading into  their  driveway.   One man          threatened her with  a weapon and forced her to the ground, while          the second man pointed a gun at Garcia's head, ordered him out of          the car  (a red  Suzuki), and  relieved him of  his wallet.   The          robber then struck  Garcia on  the head, and  he and his  comrade          drove off in the Suzuki.                    A short time later, the Garcias' Suzuki, with appellant          at  the wheel, pulled alongside a Mazda RX-7 operated by Reynaldo          Luciano Rivera (Luciano).  Roman, then a passenger in the Suzuki,          pointed a gun  at Luciano and ordered him to  freeze.  Instead of          submitting  to  this  minatory  demand, Luciano  stepped  on  the          accelerator.   At  the same  time, his  companion, Dalia  Hidalgo          Garcia  (Hidalgo), leapt to the  ground.  The  predators fired in          the  direction of the escaping  car, and, when  it stopped, Roman          shot  Luciano  in  the  head at  point-blank  range.   Apparently          realizing that they had  killed the young man, Roman  and Rivera-          Gomez fled the scene without expropriating the Mazda.                    Soon  thereafter, a  homicide  detective spotted  a red                                          4          Suzuki  in  the vicinity  and, having  received  a report  of the          latest incident, circled  to pursue it.   After a Hollywood-style          chase  involving  several police  vehicles,  the  Suzuki crashed.          Appellant exited through the driver's door, and Roman exited from          the passenger's side.  The authorities quickly apprehended them.                    On January  5, 1994, a  federal grand jury  charged the          two  men  with three  counts of  carjacking  and three  counts of          aiding and abetting each other in  the use of firearms during and          in relation to  crimes of violence.   Count 3  of the  indictment          featured an allegation concerning  Luciano's death.  Though Roman          entered a plea, appellant maintained  his innocence.  Following a          three-day trial, a jury found appellant guilty on all six counts.          This appeal ensued.          II.  DISCUSSION          II.  DISCUSSION                    Appellant advances three assignments  of error.  First,          he maintains that the district court  erred in admitting evidence          of Luciano's death.  Second, he argues that the court should have          declared  a mistrial  when a  prosecution witness  stated in  the          jury's  presence  that Roman  had  pleaded guilty.    Finally, he          suggests  that his life sentence punishes him for an offense with          which  he  was  never  charged  (Luciano's  murder),  and,  thus,          transgresses the  Constitution.  We address  these reputed errors          sequentially.                     A.  Admission of Evidence of Victim's Death.                     A.  Admission of Evidence of Victim's Death.                         _______________________________________                    Appellant,   who  unsuccessfully  moved  in  limine  to                                                             __  ______          forestall the prosecution from showing that Luciano was killed in                                          5          the course  of the third incident, asseverates  that the victim's          death was irrelevant to  the question of guilt  on the charge  of          attempted carjacking,  and that no evidence  concerning the death          should have been admitted.  Our study of this asseveration begins          with  the language of  the carjacking statute,  which provided on          the date of appellant's offense:                         Whoever,  possessing a  firearm  .  .  .                    takes   a  motor   vehicle   that  has   been                    transported,   shipped,    or   received   in                    interstate  or  foreign  commerce   from  the                    person or  presence of  another by  force and                    violence  or by intimidation,  or attempts to                    do so, shall -                              (1)  be fined  under this  title or                    imprisoned not more than 15 years, or both,                              (2) if serious bodily  injury . . .                    results,  be   fined  under  this   title  or                    imprisoned not  more than 25 years,  or both,                    and                              (3)  if  death  results,  be  fined                    under this title or imprisoned for any number                    of years up to life, or both.          18 U.S.C.   2119 (Supp. V 1993).                    Appellant  asserts that  the district  court mistakenly          thought that  the victim's  death constituted  an element of  the          offense, and allowed the evidence on that basis.  This was error,          he  maintains,  because  subsection   (3),  the  "death  results"          provision,  is not  an element  of the  offense, but,  rather, is          simply a  sentencing enhancement mechanism.   Thus, he concludes,          the victim's death had no bearing upon the determination of guilt          for the underlying offense,  and should not have been  brought to          the jury's attention.                    As  an  inauguratory  matter,  we  disavow  appellant's          assertion  that  the  district  court held  the  "death  results"                                          6          provision  to be a separate element of the offense of carjacking.          As we parse the  version of the statute under  which Rivera-Gomez          was  convicted, the crime of carjacking  had four elements, viz.,                                                                      ____          (1) taking (or attempting to take) from the person or presence of          another,  (2) by force,  violence, or  intimidation, (3)  a motor          vehicle   previously  transported,   shipped,   or  received   in          interstate or foreign  commerce, (4)  while using  or carrying  a          firearm.1   See United  States v.  Johnson, 32  F.3d 82,  85 (4th                      ___ ______________     _______          Cir.),  cert. denied,  115 S.  Ct. 650  (1994); United  States v.                  _____ ______                            ______________          Harris, 25 F.3d  1275, 1279 (5th Cir.)  cert. denied, 115  S. Ct.          ______                                  _____ ______          458 (1994); United States  v. Singleton, 16 F.3d 1419,  1422 (5th                      _____________     _________          Cir. 1994).                    The  district  court appears  to  have understood  this          structure,  and  the  record  suggests  that  the court  did  not          consider  the death  of a  victim to  be a  further (independent)          element  of the carjacking offense.  Judge Laffitte stated at the          pretrial hearing  on the motion  in limine that the  death of the                                           __ ______          victim was  an offense element "not  as such," but  only as "part          and parcel" of the "force and violence" element of the carjacking          charge.  In the same vein, the judge's jury instructions outlined                                        ____________________               1Section 2119 has  since been  amended.  In  the 1994  crime          bill, Congress substituted  the phrase "with the  intent to cause          death  or  serious  bodily   harm"  for  the  language  requiring          possession  of  a firearm.   See  Violent  Crime Control  and Law                                       ___          Enforcement Act of 1994,   60003(a)(14), Pub. L. No. 103-322, 108          Stat. 1796, 1970.  Thus, the new law leaves the offense with four          elements,  but  changes  the focus  of  the  fourth element  from          weaponry to intention, requiring  that the prosecution prove that          the defendant perpetrated  the crime with the specific  intent of          causing death or serious bodily harm.                                          7          the four essential elements of carjacking described above, saying          nothing  about   "death  results"   as  an   independent  element          applicable to count 3.                    In  our  view,  then,  the  court's  admission  of  the          evidence  derived  not  from  a misapprehension  that  the  death          constituted an  independent offense element, but,  rather, from a          belief  that  evidence of  Luciano's  death helped  to  prove the          essential  "force  and  violence"  element.   The  question  that          remains is whether the court blundered in allowing the government          to present the challenged evidence as a means of proving that the          carjackers employed force and violence  in carrying out the third          incident.  We think not.                    It is difficult to conceive of a situation in which the          death of a victim  will not be relevant  to the use of force  and          violence during the commission  of an attempted carjacking.   See                                                                        ___          Fed. R.  Evid. 401 (defining "relevant  evidence"); United States                                                              _____________          v.  Rodriguez, 871  F. Supp.  545,  549 (D.P.R.  1994) (approving              _________          admission  of  evidence of  "the victim's  death  as well  as the          manner  and means by which  it was accomplished"  as relevant and          "highly  persuasive"  of "force  and  violence"  in a  carjacking          prosecution).   This  case  is certainly  not the  exception that          proves the rule.  Nevertheless, relevancy does not tell the total          tale.    Evidence,  though  relevant,  may  be excluded  "if  its          probative  value is  substantially  outweighed by  the danger  of          unfair  prejudice, confusion  of  the issues,  or misleading  the          jury."  Fed. R. Evid. 403.  We turn, therefore, to the balance of                                          8          probative worth and unfair prejudice.                    In  this  instance,  appellant insists  that,  even  if          evidence concerning the killing was probative of guilt  under the          force  and violence element of  the offense, it  was not actually          necessary  to the prosecution's  case   the  government had other          evidence, such  as the  circumstances of the  carjackers' initial          encounter with the victim, that  would have made the point    and          the likelihood was great that grisly details would stir the baser          passions of  the jurors and cloud their  minds so that they could          not make  an objective  appraisal  of the  evidence before  them.          Thus,  appellant's  thesis runs,  the  risk  of unfair  prejudice          inherent in  permitting the  prosection to introduce  evidence of          the  homicide  substantially   outweighed  whatever   incremental          probative value the evidence may have supplied.                    We  review   a  trial  court's  rulings   admitting  or          excluding  particular  evidence for  abuse  of  discretion.   See                                                                        ___          United States v.  Holmquist, 36  F.3d 154, 163  (1st Cir.  1994),          _____________     _________          cert. denied, 115  S. Ct.  1797 (1995); Veranda  Beach Club  Ltd.          _____ ______                            _________________________          Partnership  v. Western Surety Co., 936 F.2d 1364, 1373 (1st Cir.          ___________     __________________          1991);  United States v. Nazarro,  889 F.2d 1158,  1168 (1st Cir.                  _____________    _______          1989).   We grant the  trial court especially  wide latitude when          Rule 403 balancing is the subject of review.  "Only  rarely   and          in extraordinarily  compelling circumstances   will  we, from the          vista  of a cold appellate record, reverse a district court's on-          the-spot  judgment concerning the  relative weighing of probative          value and unfair effect."  Freeman v. Package Mach. Co., 865 F.2d                                     _______    _________________                                          9          1331,  1340 (1st Cir.  1988).  This  deference is equally  due in          criminal cases.   See, e.g., United  States v. Rodriguez-Estrada,                            ___  ____  ______________    _________________          877 F.2d 153, 156 (1st Cir. 1989); United States v. Ingraham, 832                                             _____________    ________          F.2d 229, 233-34  (1st Cir.  1987), cert. denied,  486 U.S.  1009                                              _____ ______          (1988); United States v.  Tierney, 760 F.2d 382, 388  (1st Cir.),                  _____________     _______          cert. denied, 474 U.S. 843 (1985).          _____ ______                    Through this  modest lens, we see  no cognizable defect          in the  district  court's Rule  403  balancing.   Whatever  other          evidence  was available,  evidence  of  Luciano's death  remained          highly  probative of  culpability for an  essential element  of a          section 2119 offense.  Presumably,  like most evidence offered by          the  government in a criminal case, this evidence was designed to          prejudice the  jury  against  the defendant  in  the  sense  that          exposure  to it would  render a conviction more  likely.  But the          introduction of relevant evidence to influence perceptions is the          stuff of  our adversary system  of justice.   The law  protects a          defendant against unfair  prejudice, not  against all  prejudice.                            ______                          ___          See  Rodriguez-Estrada, 877  F.2d at  155-56; Onujiogu  v. United          ___  _________________                        ________     ______          States, 817  F.2d 3, 6 (1st  Cir. 1987); see also  Veranda Beach,          ______                                   ___ ____  _____________          936 F.2d at 1372 (explaining that "trials were never meant  to be          antiseptic affairs;  it is  only unfair prejudice,  not prejudice          per se, against which  Rule 403 guards").  Since the  evidence at          issue is so tightly linked to guilt as defined by the elements of          the offense,  it would  be surpassingly  difficult  to justify  a          finding of unfair prejudice stemming from its introduction.                    Here, moreover, there are several additional weights on                                          10          the  scale favoring  admissibility.  For  one thing,  because the          perpetrators fled immediately after  the shooting, leaving behind          both  the  Mazda  and  a dying  man  in  the  driver's  seat, the          government's case on  count 3  depended on its  ability to  prove          attempted carjacking.   Without  knowing of Luciano's  death, the          jury may have been left to wonder why two supposed carjackers had          turned their backs on  an expensive, late-model sports car.   For          another  thing, Hidalgo,  understandably concerned  with her  own          safety at the time the incident occurred, could give only limited          testimony  as to what transpired,  and there was  a definite risk          that the jury,  if uninformed of Luciano's  passing, would engage          in  speculation as  to  why the  prosecution  did not  offer  his          testimony at trial.   See, e.g., United States v.  Accetturo, 966                                ___  ____  _____________     _________          F.2d 631, 637 (11th Cir.  1992) (holding the fact of a  witness's          death  admissible as  "relevant  to explain  the  fact that  [the          witness]  did  not  testify"   and  to  prevent  the   jury  from          speculating),  cert. denied,  113 S.  Ct.  1053 (1993);  see also                         _____ ______                              ___ ____          United  States v. Williams, 51  F.3d 1004, 1010  (11th Cir. 1995)          ______________    ________          (citing  Accetturo in admitting evidence of a victim's death in a                   _________          carjacking prosecution), petition for  cert. filed (U.S. Aug. 11,                                   ________ ___  _____ _____          1995) (No. 95-5555).                    These   considerations,   taken   in   the   aggregate,          underscore the  invulnerability of  the district  court's ruling.          The evidence here did more than tend to show guilt on one element          of  the offense;  it also  constituted a  crucial chapter  in the          government's  narrative  account   of  appellant's   carjackings,                                          11          allowing  the  jury  to  put  matters  into  perspective.   Trial          evidence is supposed to help  the jury reconstruct earlier events          and  then  apportion  guilt  or  responsibility  as  the law  may          require.   Rule  403 exists  to facilitate  this process,  not to          impede  it.   We think  it follows  that, although  a "controlled          environment for  the reception of  proof is essential,  . .  . an          artificially  sterile  environment   is  neither  necessary   nor          desirable."   Wagenmann  v. Adams,  829 F.2d  196, 217  (1st Cir.                        _________     _____          1987); see also  United States v.  McRae, 593 F.2d 700,  707 (5th                 ___ ____  _____________     _____          Cir.) ("Unless trials are to be conducted on scenarios, on unreal          facts tailored and sanitized for the occasion, the application of          Rule  403 must be  cautious and sparing.   Its major  function is          limited  to excluding  matter  of scant  or cumulative  probative          force,  dragged in by  the heels for the  sake of its prejudicial          effect."), cert. denied, 444 U.S. 862 (1979).                     _____ ______                    When  a  trial  court  in  a  criminal  case  exercises          discretion at first  hand, the  court of appeals  should go  very          slowly  in interfering  with its  judgment calls.   The  need for          caution  is magnified when, as  now, a challenged  ruling has the          effect of vindicating the government's well-established "right to          present  to the jury  a picture of  the events relied upon  . . .          including  proof of  all  elements of  the  crime for  which  the          defendant  has been brought to trial."  United States v. Tavares,                                                  _____________    _______          21  F.3d 1, 3-4 (1st Cir. 1994)  (en banc) (citation and internal          quotation marks omitted).   Here, the  disputed evidence is  both          picture and proof; though lurid, it is part of what old-fashioned                                          12          lawyers might call the  res gestae, and it is  directly probative                                  ___ ______          of an element of  the offense.  Consequently,  the court did  not          err in admitting it.   After all, it is the rare case  in which a          court  must require that the  story of the  crime be spoon-fed to          jurors in bits and pieces from which every drop of juice has been          drained.                            B.  Denial of Mistrial Motion.                            B.  Denial of Mistrial Motion.                                _________________________                    During  his  trial  testimony,  a  prosecution witness,          homicide   detective   Lama-Canino,   blurted  out   that   Roman          (appellant's  partner in crime) had entered a guilty plea.  Judge          Laffitte immediately struck the statement, instructed  the jurors          to  disregard it, and warned them not to ponder the codefendant's          fate.    However,  the  court  refused  to  declare  a  mistrial.          Appellant assigns error.                    The trial  judge is best situated to make a battlefield          assessment  of  the impact  that a  particular piece  of improper          information may  have on a jury.   See United States  v. Lau, 828                                             ___ _____________     ___          F.2d  871, 874  (1st  Cir. 1987),  cert.  denied, 485  U.S.  1005                                             _____  ______          (1988).   For this reason,  we have long  recognized that motions          for  mistrial are  committed to  the presider's  discretion, see,                                                                       ___          e.g., United States  v. De Jongh, 937 F.2d 1,  3 (1st Cir. 1991),          ____  _____________     ________          especially  when such a motion  is predicated on some spontaneous          trial development  that can best be gauged in the ebb and flow of          the  trial itself, see United States v.  Pierro, 32 F.3d 611, 617                             ___ _____________     ______          (1st Cir.  1994),  cert. denied,  115  S. Ct.  919 (1995).    Our                             _____ ______          reluctance  to intervene is often reinforced by an awareness that                                          13          in most cases a firm, timely curative instruction will adequately          quell  the  potential  for  prejudice.    See  United  States  v.                                                    ___  ______________          Sepulveda,  15 F.3d 1161, 1184 (1st Cir. 1993), cert. denied, 114          _________                                       _____ ______          S.  Ct. 2714 (1994); United  States v. Ferreira,  821 F.2d 1, 5-6                               ______________    ________          (1st Cir. 1987).                    Although  every  trial  is different,  and,  therefore,          every  mistrial motion is sui generis, the assignment of error in                                    ___ _______          this case is  reminiscent of  that advanced in  United States  v.                                                          _____________          Bello-Perez,  977  F.2d   664  (1st  Cir.  1992).     There,  the          ___________          defendant's  paramour twice  blurted out  that the  defendant had          suffered  a gunshot  wound  in an  event  unrelated to  the  drug          trafficking conspiracy with  which he  was charged.   See id.  at                                                                ___ ___          672.    The  district   judge  gave  a  contemporaneous  curative          instruction on each occasion, and refused to  declare a mistrial.          We upheld the ruling.  See id.                                 ___ ___                    Here, as in Bello-Perez,  the trial court's handling of                                ___________          the witness's rash comment was well within the broad range of its          discretion.   The  analogy operates  on at  least three  levels.2          First, here, as in Bello-Perez, the offensive information, though                             ___________          unfit for  jury consumption,  was  not of  a kind  that might  be                                        ____________________               2Appellant belatedly  attempts to distinguish the  two cases          on the ground that here, unlike in Bello-Perez, 977  F.2d at 672,                                             ___________          the offending  witness   a police officer   acted in bad faith by          deliberately  uttering  the improper  testimony.    At the  time,          however,  appellant's  counsel expressed  his agreement  with the          judge's  assessment  that the  witness  had  made a  spontaneous,          accidental slip of the tongue.  That ends  the matter.  Arguments          not raised in  the lower court  cannot be unfurled for  the first          time on appeal.  See United States v. Slade, 980 F.2d 27, 30 (1st                           ___ _____________    _____          Cir. 1992).                                          14          thought irredeemably to  poison the  well.  The  fact that  Roman          pleaded guilty  had no bearing  upon appellant's primary  line of          defense    mistaken identity    and  had nothing  to do  with the          government's  attempt to prove that  Rivera-Gomez was the man who          accompanied Roman during the carjacking spree.                    Second, the strength  of the government's  overall case          is frequently a  cardinal factor  in evaluating the  denial of  a          mistrial motion.  Here, as in Bello-Perez, the prosecution's case                                        ___________          was extremely  robust.   There is  a correspondingly  small risk,          therefore, that Lama-Canino's wayward  remark could have been the          straw  that broke  the dromedary's  back.   See United  States v.                                                      ___ ______________          Scelzo, 810 F.2d 2, 5 (1st Cir. 1987).          ______                    Third,  permitting  the   trial  to  proceed   is  more          palatable because, as in Bello-Perez, the judge gave an immediate                                   ___________          curative instruction   a  device that we have regularly  endorsed          as  a means of dispelling potential prejudice.  See United States                                                          ___ _____________          v. Chamorro,  687 F.2d 1,  6 (1st Cir.),  cert. denied,  459 U.S.             ________                               _____ ______          1043 (1982).   We not only believe that the  language used by the          court fit the occasion, but we  also take heed that appellant did          not    then or now   suggest a more  felicitous phrasing.  At the          expense  of carting  coal to  Newcastle, we  note, too,  that the          judge, in  a commendable  abundance of caution,  again admonished          the  jurors in his final instructions that appellant alone was on          trial, and that Roman's  guilt or innocence was not a matter with          which  they  should concern  themselves.   We are  confident that          these instructions,  in combination, eliminated  any prospect  of                                          15          prejudice that  might otherwise  have flowed from  the gratuitous          aside.                    As  a  fallback  position,  appellant claims  that  the          district court's instructions did  more harm than good, reminding          the jury of  the substance of the improper observation.   In some          respects,  of course, instructions cautioning jurors to disregard          testimony  may often  appear  to turn  evidence  into a  form  of          forbidden  fruit.  Every parent knows that admonitions to refrain          sometimes  only emphasize the attraction.  Cf. Tom Jones & Harvey                                                     ___          Schmidt,  Never Say No (The  Fantastiks, 1960) ("My  son was once                    ____________          afraid  to  swim; the  water made  him wince.    Until I  said he          mustn't swim; he's been  swimmin' ever since.").  But  jurors are          not children, and our system of trial by jury is  premised on the          assumption  that jurors  will  scrupulously  follow  the  court's          instructions.  See Richardson v. Marsh, 481 U.S. 200, 206 (1987);                         ___ __________    _____          Francis  v. Franklin, 471 U.S. 307, 324 n.9 (1984); Sepulveda, 15          _______     ________                                _________          F.3d at  1185.  Here,  we have no  basis (apart  from appellant's          self-interested  speculation) to  presume that  the evils  of the          cure exceeded  those of  the  disease, and  we therefore  decline          appellant's unsupported invitation to  surmise that the jury took          the wrong message from the curative instruction.                    To  recapitulate, given  the nature  of the  taint, the          strength of  the  government's case,  and the  promptness of  the          district court's  instructions, we are unprepared to say that the          court misused its discretion in denying the mistrial motion.  See                                                                        ___          United  States v.  Sclamo,  578 F.2d  888,  891 (1st  Cir.  1978)          ______________     ______                                          16          (upholding a denial of  mistrial after witness' improper comment,          "in light of the strong case and substantial evidence produced by          the  government, and in view  of the court's  cautionary words to          the jury concerning stricken testimony").                          C.  Imposition of a Life Sentence.                          C.  Imposition of a Life Sentence.                              _____________________________                    In  his final  foray, appellant  takes aim at  the life          sentence  imposed on  count 3.   Having  argued earlier  that the          "death results" provision of the statute of conviction, 18 U.S.C.            2119  (3), is  not an  element of the  offense, see  supra Part                                                            ___  _____          II(A), appellant now  posits that the  life sentence he  received          punishes him for a crime    Luciano's murder   with which  he was          never  charged, and  that,  therefore, his  sentence offends  the          Constitution.  We discern no constitutional infirmity.                    Appellant's   argument   is   not    entirely   without          foundation.  We agree  with him that subsection (3)  demarcates a          sentence-enhancing  factor, and  does  not  establish a  separate          offense  with an additional element.  After all, not every matter          mentioned  in the text of a criminal statute comprises an element          of the offense.                    To be sure,  attempting to distinguish  between offense          elements and sentence enhancers can sometimes be a daunting task.          When  deciding  how a  particular  statutory  allusion should  be          construed,  an  inquiring  court   must  mull  the  language  and          structure of  the statute,  and, when necessary,  its legislative          history.   See United  States v. Forbes, 16  F.3d 1294, 1298 (1st                     ___ ______________    ______          Cir.  1994); United  States v.  Ryan, 9 F.3d  660, 667  (8th Cir.                       ______________     ____                                          17          1993), modified on other grounds, 41 F.3d 361 (8th Cir. 1994) (en                 _________________________          banc), cert. denied,  115 S.  Ct. 1793 (1995);  United States  v.                 _____ ______                             _____________          Rumney, 867 F.2d 714,  717-19 (1st Cir.), cert. denied,  491 U.S.          ______                                    _____ ______          908  (1989); United States v.  Jackson, 824 F.2d  21, 23-24 (D.C.                       _____________     _______          Cir. 1987).                    The structure of section 2119, the unexpurgated text of          which  is quoted supra at p. 5,3 strongly indicates that Congress                           _____          intended its subsections to be sentence-enhancing factors and not          elements  constituting separate  species of  carjacking offenses.          The  initial paragraph  of the statute  establishes the  crime of          carjacking.  That paragraph ends  with the word "shall," followed          by  three subsections.   These  subsections are  not structurally          independent   provisions  in  which  the  essential  elements  of          carjacking   are  redefined   and  embellished   with  additional          components.    Rather,  the  structure  is  integrated,  and  the          statutory provisions form a seamless whole.                    The first  subsection limns the base  sentence, and the          following two subsections clear the way for enhanced sentences if          either serious bodily injury or death results from the commission          of the carjacking  offense.  Ripped from  their textual moorings,          subsections (2) and (3) would be little more than gibberish; they          are   incapable  of   "stand[ing]  alone,   independent  of   the          [underlying]  offense."  Ryan, 9 F.3d at 667.  Consequently, this                                   ____          statutory structure  comprises persuasive evidence  that Congress                                        ____________________               3The 1994 amendment, discussed supra note 1, does not affect                                              _____          our analysis of these subsections.                                          18          intended the  second and third subsections simply  to augment the          sentences for  certain aggravated  carjackings, not  to establish          additional  offenses  with independent  elements.   Accord United                                                              ______ ______          States  v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995); Williams, 51          ______     ______                                    ________          F.3d at 1009.                    Although this reading is the most natural and sensible,          especially given the interdependence of the provisions, we go the          extra  mile   and  venture  into  the   legislative  history  for          confirmation of Congress's  intent.  The path  is plainly marked,          see Oliver,  60 F.3d  at  553, and  we can  deduce  no reason  to          ___ ______          retrace its  contours.   The Eleventh  Circuit has  collected and          canvassed  the  relevant   historical  materials,  examined  them          perspicaciously, and  concluded that  the  background of  section          2119 makes manifest that Congress intended subsection (3) to be a          sentence  enhancer,  not  a separate  offense.    See  id.   This                                                            ___  ___          conclusion is unarguable, and we adopt it.                    Having  concluded  that  18   U.S.C.     2119(3)  is  a          sentence-enhancing factor, we next consider the constitutionality          vel non of  appellant's life sentence  on count 3.   Viewed as  a          ___ ___          sentence-enhancing   factor,   subsection   (3)    represents   a          congressional  judgment that  the punishment  for  committing the          crime of carjacking should be harsher if the offense, as actually          perpetrated,  includes  conduct that  produces  the  demise of  a          victim.    In  this sense,  the  architecture  of  the carjacking          statute bears a family  resemblance to the design of  the federal          sentencing  guidelines, which  make  generous use  of "sentencing                                          19          enhancement  regimes  evincing  the judgment  that  a  particular          offense  should  receive  a  more  serious  sentence  within  the          authorized range if it  was either accompanied by or  preceded by          additional criminal activity."   Witte v.  United States, 115  S.                                           _____     _____________          Ct.  2199, 2208  (1995).   For example,  under U.S.S.G.    1B1.3,          "this  court  has repeatedly  upheld  the  inclusion as  relevant          conduct of acts either  not charged or charged but  dropped," and          authorized resort to that  conduct as a sentence-enhancing datum.          United  States v.  Garcia,  954  F.2d  12,  15  (1st  Cir.  1992)          ______________     ______          (collecting cases).  By like token, a defendant convicted of drug          trafficking  will find his sentence enhanced if it turns out that          he  possessed a  dangerous  weapon during  the commission  of the          crime,  see  U.S.S.G.  2D1.1(b)(1),  or  if a  victim  died under                  ___          circumstances that would constitute murder, see id.  2D1.1(d).                                                      ___ ___                    The  Supreme  Court  has  made it  pellucid  that  such          sentencing enhancement schemes do  not constitute punishments for          separate offenses:   "the  fact that the  sentencing process  has          become more  transparent under the guidelines . . . does not mean          that the defendant is now being `punished' for uncharged  conduct          as though it were a distinct criminal `offense.'"  Witte,  115 S.                                                             _____          Ct.  at  2207;  see also  id.  at  2206-07  (explaining that  the                          ___ ____  ___          consideration  given  to  particular  aspects  of  character  and          conduct  at sentencing "does  not result in  `punishment' for any          offense  other   than  the  one   of  which  the   defendant  was          convicted").  So it is here.  Appellant is not being punished for          the  uncharged crime of murder, but, rather, he is being punished                                          20          more  severely for  the crime of  carjacking because  his conduct          during the  commission of the crime led to the loss of a victim's          life.                    Of course, the burgeoning  use of sentence enhancers by          Congress and the Sentencing Commission  as part of the  catechism          of  punishment   poses  an   obvious  danger  that,   in  extreme          circumstances, the  lagniappe might  begin to overwhelm  the main          course.  In  all probability, there are constitutional  limits on          the way sentencing factors can be deployed in the punishment of a          substantive offense.  See id. at 2208; McMillan v.  Pennsylvania,                                ___ ___          ________     ____________          477 U.S. 79, 88 (1986).  But that proposition is only of academic          interest where, as here, the sentence enhancement scheme "neither          alters  the maximum penalty for the crime committed nor creates a          separate offense calling for a separate penalty."   McMillan, 477                                                              ________          U.S. at 87-88.                    In this case, under appellant's own reading of the law,          Congress  has,  in  essence,  established   a  statutory  maximum          sentence of  life  imprisonment for  carjacking,  and  authorized          courts to levy such a sentence when a defendant's conduct results          in  the victim's  death.  This  paradigm is  no different  in its          legal effect than if Congress had  set a statutory range of up to          life in prison, and  the sentencing guidelines, through a  web of          enhancement  factors, had authorized a sentence of life only on a          finding  by  the  sentencing court  that  the  crime  resulted in                                          21          death.4  In fine,  section 2119 establishes only one  offense and          sets a range of punishment for that offense, varying according to          conduct.     So   viewed,  the   sentencing  scheme   crosses  no          constitutional boundaries.          III.  CONCLUSION          III.  CONCLUSION                    We  need  go  no further.    From  aught  that appears,          appellant  was  fairly  tried,  justly  convicted,  and  lawfully          sentenced.          Affirmed.          Affirmed.          ________                                        ____________________               4One might argue that  because a judge has no  discretion to          impose a life sentence unless death results,   2119(c)(3) amounts                                 ______          to a  "rule" establishing  a separate,  uncharged offense.   This          argument would  fail.  "Regardless of  whether particular conduct          is taken  into account by  rule or as  an act of  discretion, the          defendant is  still  being  punished  only  for  the  offense  of          conviction."  Witte, 115 S. Ct. at 2207.                        _____                                          22
