
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-2000                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    HENRY LOMBARD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            F. Mark Terison, Assistant United States  Attorney, with whom  Jay            _______________                                                ___        P. McCloskey, United  States Attorney,  was on brief,  for the  United        ____________        States.            Jane E. Lee, by appointment of the court, for appellant.            ___________                                 ____________________                                  December 15, 1995                                 ____________________                      LYNCH,  Circuit  Judge.    Henry Lombard,  Jr.  and                      LYNCH,  Circuit  Judge.                              ______________            Hubert Hartley  were tried  separately in the  Maine Superior            Court in  1992 on  charges of  murdering two  men.   Each was            acquitted.   Afterward, Lombard and Hartley  were indicted as            co-defendants  in  the federal  district  court  in Maine  on            federal  firearms  and  other  charges  arising  out  of  the            murders.  Hartley pleaded  guilty at mid-trial, but appellant            Lombard entrusted his fate to the jury.  He was convicted.                      At sentencing,  under the Guidelines,  the district            court found by a  preponderance of the evidence  that Lombard            had used  his illegally possessed firearm  to commit "another            offense":  the same murders of which he had been acquitted in            the  state court.   The resulting  Guidelines sentence  was a            mandatory term of life  in prison, which Maine law  would not            _________            have  required  even  had  defendant been  convicted  of  the            murders.   Lombard thus received a life sentence based on the            federal court's finding that it was more likely than not that            Lombard  had  committed  the murders  of  which  he  had been            acquitted.   The  sentencing judge  was greatly  troubled but            felt  as  a matter  of law  that he  had  no authority  to do            otherwise under the Guidelines.                      Lombard appeals the mandatory life sentence and his            convictions.    We affirm  the  convictions  for the  reasons            stated later.  We address first the very troubling sentencing            issue.   Finding  that  this  is a  case  in  which the  life                                         -2-                                          2            sentence  enhancement  is the  "tail which  wags the  dog" of            defendant's trial and conviction, thus raising constitutional            due process concerns, we hold that under section 5K2.0 of the            Guidelines  the district  court had  the authority,  which it            thought it had  not, to  consider a downward  departure.   We            vacate the  life sentence and  remand for a  determination of            whether a downward departure might be warranted in the unique            circumstances here.                                          I                                      Background                                      __________                      On Thanksgiving morning of 1990,  Morris Martin and            Paul Lindsey, Jr. were murdered, each shot in the head as  he            lay  sleeping in  the living  room of  a small  cabin  in the            backwoods of Fairfield, Maine.  The cabin was owned by Hubert            Hartley,  the half-brother  of the  defendant  Henry Lombard.            All four men had been living in the cabin  for a week to hunt            deer in  the surrounding  woods.  Tammy  Theriault, Hartley's            girlfriend, had also been living in the cabin, along with her            eighteen  month old  daughter.   She  was also  pregnant with            Hartley's child at the time.  Theriault was a near-eyewitness            to the murders,  able to hear and observe much through a hole            in the floor of her upstairs bedroom.                      Lombard and Hartley were  tried separately on state            charges of  murder before  two juries in  the Maine  Superior            Court.   Each  defendant  testified in  his  own defense  and                                         -3-                                          3            claimed that the  other had committed  the murders.   Hartley            and  Theriault testified against  Lombard at Lombard's trial.            Both state trials resulted in acquittals.                      One year  later, a  federal grand jury  returned an            indictment in  the U.S. District Court,  charging Hartley and            Lombard  with unlawful  possession of  a firearm,  aiding and            abetting the  same, and  with conspiracy charges  relating to            the aftermath  of  the murders.1   Lombard  and Hartley  were            tried   jointly  in   the  federal   district  court.     The            prosecution's key witness was Tammy Theriault.  Her testimony            departed in  some respects from the  testimony and statements            she gave earlier.   She testified, as  follows, that although            she did not  see the  murders being committed,  she did  hear            conversations  between Hartley  and Lombard  just before  and            after  the  gunshots  were  fired.    At  about  10  a.m.  on            Thanksgiving morning,  Lombard  and Hartley  returned to  the            cabin from a morning hunt.  Martin and Lindsey were asleep on                                            ____________________            1.  Count  1 of  the indictment  charged Hartley  and Lombard            with a multi-part  conspiracy with the following  objectives:            unlawfully  to   possess  and  aid  and   abet  the  unlawful            possession of  a firearm  and ammunition in  violation of  18            U.S.C.   922(g)(1); to cross state lines with intent to avoid            prosecution  or   avoid  giving  testimony   in  a   criminal            proceeding  in violation of  18 U.S.C.   1073;  and to remove            and  transport  from  Hartley's  cabin  certain  evidence  of            Lombard's unlawful possession of a firearm and ammunition, in            violation of  18 U.S.C.   2232(a).   Count 2  charged Lombard            with  unlawful  possession of  a firearm  in violation  of 18            U.S.C.     922(g),  924(e).   Count  3  charged Hartley  with            aiding and abetting  Lombard in the unlawful possession  of a            firearm, in violation of 18 U.S.C.   922(g)(1)-(2).                                         -4-                                          4            couches in the living room.   Hartley, seeing Theriault, told            her to go back upstairs because he and Lombard "had something            to do."   On returning to her room, she  heard Lombard say to            Hartley,  "[I]f you don't shoot  him, I'm going  to shoot 'em            both."    Next,  Theriault,  still  upstairs  with  her  baby            daughter, heard  five or six gunshots,  followed by Lombard's            exclamation,  "I didn't  think you  had the  guts to  do it."            Hartley boasted,  "I  showed you,  didn't I?"  and added,  "I            don't think he's dead yet.  Shoot him again."                      Lombard and Hartley stuffed the victims' bodies  in            garbage  bags, as Theriault  watched through the  hole in her            bedroom floor.   Theriault  was with  Lombard and  Hartley as            they cleaned the cabin  of blood and other evidence,  and hid            the bodies temporarily  in the cellar.  The next  day, as the            two men were  attempting to move  the bodies to the  trunk of            Hartley's   car,  Theriault's   family   arrived   to   bring            Thanksgiving  leftovers.   They  sat visiting  in the  living            room, with one victim's body hidden in the trunk of Hartley's            car  outside,  the  other still  in  the  cellar.   Theriault            accompanied  Lombard and Hartley when they later went to dump            both bodies  in a roadside  bog.  She  was also present  when            Lombard  sold his  Marlin .22  caliber rifle  as well  as the            victims' two hunting guns  to a broker.  Lombard  and Hartley            were planning to flee from Maine to Massachusetts just before            they were arrested.                                         -5-                                          5                      Excerpts of testimony that Hartley  and Lombard had            given in their  state court murder trials were  also admitted            into evidence.  These excerpts (including Lombard's own prior            testimony)  corroborated  much  of  Theriault's  account  and            established  that Lombard  owned a  Marlin .22  caliber rifle            which he had brought to Hartley's cabin, that he loaded it on            the morning of Thanksgiving  Day, 1990, that he took  the gun            with him to  go hunting  that morning, and  that Lombard  and            Hartley   together  attempted  to   clean  the  bloody  cabin            following  the  murders,  removed  evidence  of  the murders,            disposed of  the  bodies, and  planned  to flee  from  Maine.            Other  witnesses'  testimony  established  that  Lombard  had            reason  to  be aware  that he  could  not lawfully  possess a            firearm, that he nonetheless  purchased the .22 caliber rifle            from  Tammy Theriault's  brother, and  that the  bullets that            were recovered from the  victims' bodies were consistent with            having been fired from a .22 caliber rifle.                       Hartley  pleaded  guilty   at  the  close   of  the            government's case.   Lombard, however,  put his  case to  the            jury  (without  presenting  an   affirmative  case)  and  was            convicted on both Counts 1 and 2 of the indictment.                      At Lombard's sentencing, the court applied a cross-            reference  in  the  relevant  provision  of   the  Guidelines            governing   the   firearms   conviction  (Count   2),   which            essentially provided that  if Lombard's unlawfully  possessed                                         -6-                                          6            firearm had been used in the commission of a murder, his base            offense level (BOL)  on that conviction was to  be determined            by the same guideline applicable  to a conviction for murder.            The court determined that the firearm had so been used.   The            resulting  BOL  required a  term  of  life imprisonment,  and            Lombard was sentenced accordingly.                                          II                                     The Sentence                                     ____________                      Lombard  raises  two  challenges  to  the  sentence            imposed by the  district court.   He contends  that the  life            sentence was imposed in violation of his rights under the Due            Process Clause.2  He  also argues, to  no avail, that he  was                                            ____________________            2.  As  a  preliminary  matter, we  reject  the  government's            assertion that  the defendant did not  properly preserve this            issue  for appeal.  The issue of  whether and in what way the            murders of which Lombard had been acquitted could properly be            considered  at  sentencing was  adequately  presented  to and            squarely  addressed  by the  district  court.   As  the court            itself stated:                       The  key issue in this  sentencing, of course,                is whether or  not premeditated murder is the  object                offense in  connection with  which the  firearms were                unlawfully possessed. . . .                       Resolution  of  this   issue  is  particularly                difficult because  of the fact  that both defendants,                Mr. Lombard and Mr. Hartley, were acquitted of  first                degree murder  charges  in  the state  court  . . . .                The suggestion made by counsel for Mr. Lombard  quite                appropriately  is how  could  the  object offense  in                deriving   the   calculation   of   the   appropriate                guideline in determining  the sentence  in this  case                be  calculated on  the basis of crimes  for which the                defendant has been acquitted albeit in state court?                       And  that's  the central  core issue  that has                been troubling me  throughout this process since  the                                         -7-                                          7            erroneously  denied  credit  under  the  Guidelines  for  his            acceptance ofresponsibility forthe firearms andflight crimes.            A.  Calculation of the Guidelines Sentence                ______________________________________                      Lombard received a life sentence  as a thrice-prior            convicted felon  ostensibly for his unlawful  possession of a            firearm  in violation of 18 U.S.C.    922(g) and 924(e).3  He            was sentenced to the  statutory maximum of 60 months  for the            conviction on the conspiracy  count, concurrent with the life            sentence.4  Lombard  does not contend here  that the district                                      ___            court incorrectly  applied the Guidelines in  determining his            life sentence, but rather argues that the manner in which the                                            ____________________                trial and  during  the  presentence  conferences  and                reviewing    the    presentence   report    and   the                transcripts.            3.  Section 922(g)(1) provides: "It shall be unlawful for any            person . . . who has been convicted in any court  of, a crime            punishable  by imprisonment  for  a term  exceeding one  year            . . . to ship or transport in interstate or foreign commerce,            or  possess   in  or  affecting  commerce,   any  firearm  or            ammunition; or to receive any firearm or ammunition which has            been shipped or transported in interstate or foreign commerce            [paragraph structure omitted]."                Section 924(e)(1) provides: "In the case of  a person who            violates section 922(g) of this title and has  three previous            convictions  by any court referred to in section 922(g)(1) of            this title for a violent felony or a serious drug offense, or            both, committed on occasions different from one another, such            person  shall be fined  not more than  $25,000 and imprisoned            not less  than fifteen years, and,  notwithstanding any other            provision of  law, the court  shall not suspend  the sentence            of, or  grant a  probationary sentence  to, such  person with            respect to the conviction under section 922(g)."            4.  Lombard has  not appealed the sentence  on the conspiracy            conviction.                                         -8-                                          8            Guidelines, as applied by  the court, required it  to conduct            its factfinding  and mandated the life  sentence violated his            constitutional rights.                       The   specific   guideline   applicable   to   the            defendant's   firearms   conviction  is   U.S.S.G.    2K2.1.5            Subsection (a)(2) of the 1990 version of section 2K2.1 sets a            BOL  of 12  "if the  defendant is  convicted under  18 U.S.C.              922(g)  . . . ."6    The  "cross-reference"   provision  of            subsection (c)(2)  of  section 2K2.1 directs  that "[i]f  the            defendant used  or possessed  the firearm in  connection with            commission  or attempted commission of another offense, apply              2X1.1  . .  .  in respect  to  that other  offense, if  the            resulting  offense  level  is greater  than  that  determined            above."   U.S.S.G.   2K2.1(c)(2)  (Nov. 1990).   Treating the            murders as "another offense,"  and finding by a preponderance                                            ____________________            5.  Although the November 1993  version of the Guidelines was            in effect at the time  of Lombard's sentencing, the  district            court applied the  1990 version, apparently  to avoid any  ex                                                                       __            post  facto concerns.  See United States v. Aymelek, 926 F.2d            ____  _____            ___ _____________    _______            64, 66 n.1  (1st Cir. 1991).   The outcome (a  mandatory life            sentence) would not have been different had any later version            of  the  Guidelines  been  applied.    All  citations to  the            Guidelines are to the 1990 version, unless otherwise noted.            6.  An  unadjusted  BOL  of  12  (given  defendant's criminal            history category of VI) would have translated into a sentence            of 30-37 months.  However, because defendant was sentenced as            an  armed career  criminal  under 18  U.S.C.   924(e),  which            provides for a 15-year minimum, his total offense level could            not  have  been   any  lower   than  34,   even  apart   from            consideration of the murders.  See U.S.S.G.   4B1.4(b)(3)(A).                                           ___            That offense  level would  have translated into  a Guidelines            sentencing range of 262-327 months.                                         -9-                                          9            of the evidence that  the defendant had committed  that other            offense, the court applied section 2X1.1, which  directed the            defendant's BOL to be  set at "[t]he base offense  level from            the  guideline  for the  object  offense  . . . ."   U.S.S.G.              2X1.1(a)  (Nov.  1990).   The  "object  offense" was  first            degree murder, to which a BOL of  43 attaches.7  See U.S.S.G.                                                             ___              2A1.1.    Finding  no  basis  for  awarding  acceptance-of-            responsibility credit, the  district court  assigned a  total            offense  level of  43.   Because Lombard  was sentenced  as a            career  criminal  under  18  U.S.C.    924(e),  there  was  a            statutory  minimum  of  15  years, but  no  stated  statutory            maximum  applicable; thus  no reduction  was  indicated under            U.S.S.G.     5G1.1(a)   (which  requires   adjustment   of  a            Guidelines sentence to comply  with the statutory maximum for            the offense of conviction).  The defendant's final Guidelines                                            ____________________            7.  The same result would obtain under the current version of            the  Guidelines.   The  November  1991  amendment to  section            2K2.1(c) created a specific provision for cases in which  the            underlying  offense  conduct is  found  to  have resulted  in            death.   See  U.S.S.G.  App.  C,  amend.  374.    The  cross-                     ___            reference, as amended, provides as follows:                (1)  If the defendant  used or possessed  any firearm                or ammunition  in connection with  the commission  or                attempted commission of another offense, . . . apply                . . .                       (B)    if   death  resulted,  the   most                       analogous offense guideline from Chapter                       Two,  Part  A, Subpart 1  (Homicide), if                       the resulting offense  level is  greater                       than that determined above.            U.S.S.G.   2K2.1(c)(1)(B) (Nov. 1995).                                         -10-                                          10            sentence  was  a mandatory  term of  life imprisonment.   See                                                                      ___            U.S.S.G. Ch. 5, Pt. A  (assigning life sentence to BOL  of 43            for all criminal history categories).            B.  The Life Sentence                _________________                      The  mandatory imposition of  a life  sentence here            raises  questions  of  whether  such a  result  was  strictly            intended by the Sentencing  Guidelines and whether the method            followed  to   produce  that  result  comports with  the  Due            Process Clause.   Our focus is  on the process  by which  the            result was reached.  Lombard makes no claim, nor could he, on            the  facts here  that imposition  of a  life sentence  on him            (accompanied by due process) would itself be unconstitutional            under the Eighth Amendment.   Harmelin v. Michigan, 501  U.S.                                          ________    ________            957 (1991).  The life sentence  resulted from the convergence            of  several doctrines  in sentencing  law,  each individually            well accepted, and none of which individually is questionable            here.   But just as folk  wisdom recognizes that the whole is            often greater and different than simply the sum of its parts,            these  individual doctrines,  each reflecting  compromises in            our criminal jurisprudence, in  this extreme case threaten in            combination to  erode rights  that the Constitution  does not            permit to be compromised.                      We take  as given that once  convicted, a defendant            has  no  right  under the  Due  Process  Clause  to have  his            sentencing determination be confined to facts proved beyond a                                         -11-                                          11            reasonable  doubt.   McMillan  v. Pennsylvania,  477 U.S.  79                                 ________     ____________            (1986);  United States  v. Gonzalez-Vazquez,  34 F.3d  19, 25                     _____________     ________________            (1st Cir. 1994).   A sentencing court's operative factfinding            is  generally  subject  only   to  a  "preponderance  of  the            evidence" standard.   See United  States v. LaCroix,  28 F.3d                                  ___ ______________    _______            223, 231 (1st Cir. 1994); United States v. Mocciola, 891 F.2d                                      _____________    ________            13, 17 (1st  Cir. 1989);  United States v.  Wright, 873  F.2d                                      _____________     ______            437, 441 (1st Cir. 1989).  But cf. United States v. Kikumura,                                       ___ ___ _____________    ________            918 F.2d 1084, 1102  (3d Cir. 1990) (holding that  "clear and            convincing"    standard    applies    in   certain    limited            circumstances).    Nor  is  a  sentencing  court  limited  to            considering  only  the conduct  of  which  the defendant  was            formally charged or convicted.  Even before the advent of the            Guidelines,  some sentencing  courts  took  into account  any            information  known  to  them,  including  uncharged  relevant            conduct.  See,  e.g., Nichols  v. United States,  114 S.  Ct.                      __________  _______     _____________            1921,  1928 (1994); Williams v.  New York, 337  U.S. 241, 246                                ________     ________            (1949); United States v. Concepcion, 983 F.2d 369, 387-88 (2d                    _____________    __________            Cir. 1992), cert. denied, 114 S. Ct. 163 (1993).                        ____________                      The Guidelines were not intended to discontinue the            courts'  historical  practice  of  considering  the  relevant            circumstances of the defendant's real  conduct, whether those            circumstances were  specifically charged or not.   See United                                                               ___ ______            States v. Jackson, 3  F.3d 506, 509 (1st Cir.  1993); Wright,            ______    _______                                     ______            873 F.2d at  441; see generally  Stephen Breyer, The  Federal                              _____________                  ____________                                         -12-                                          12            Sentencing Guidelines and the Key Compromises Upon Which They            _____________________________________________________________            Rest,  17 Hofstra  L. Rev.  1, 8-12  (1988).   As now-Justice            ____            Breyer noted,  the Guidelines  evince a compromise  between a            pure   "charge  offense"   system  in  which   sentences  are            determined based solely upon conduct  of which a defendant is            convicted, and  a "real  offense" system, in  which sentences            are  fashioned  in  view   of  all  relevant  mitigating  and            aggravating factors surrounding the defendant's conduct.  See                                                                      ___            id.   A  sentencing court  may, therefore,  consider relevant            ___            conduct of  the defendant  for purposes of  making Guidelines            determinations,  even if he has  not been charged  with   and            indeed,  even if he has been  acquitted of   that conduct, so                                          _________            long as the conduct can  be proved by a preponderance  of the            evidence.  See United States v.  Carrozza, 4 F.3d 70, 80 (1st                       ___ _____________     ________            Cir.  1993)  (reasoning  that   failure  of  proof  beyond  a            reasonable doubt  does not preclude proof  by a preponderance            of the  evidence),  cert. denied,  114  S. Ct.  1644  (1994);                                ____________            Jackson, 3 F.3d at 509; Mocciola, 891 F.2d at 17.  Resolution            _______                 ________            of this case does not require the questioning of any of these            general  rules but does involve recognition that there may be            limits to their application.                      Both  the  Supreme   Court  and  this   court  have            recognized that the Due  Process Clause itself imposes limits            on  the application of these doctrines  in extreme cases, and            we  must   interpret  the   Guidelines  in  light   of  those                                         -13-                                          13            constraints.    This court  recognized  in  United States  v.                                                        _____________            Rivera, 994 F.2d 942 (1st  Cir. 1993), that there is  a range            ______            of discretion  left to  the district  courts even  within the            Linnaean categorizations  of the Guidelines.   We hold, under            Rivera,  that the  district court  did have  discretion here,            ______            which it thought it had not, to consider a downward departure            from the life sentence.  Accordingly, we remand.                      1.   The Tail That Wags the Dog                           __________________________                      The  Supreme Court  decisions on  sentencing, while            generally endorsing  rules that permit  sentence enhancements            to be based on conduct not proved to the same degree required            to support a conviction, have  not embraced the concept  that            those rules are free from constitutional constraints.  On the            contrary,  the  Court  has  cautioned  against  permitting  a            sentence  enhancement to be the  "tail which wags  the dog of            the substantive offense."  McMillan, 477 U.S. at 88.                                       ________                      McMillan  involved  a challenge  to  a Pennsylvania                      ________            statute that  imposed a mandatory minimum  prison sentence of            five  years  for  a  defendant  found  at  sentencing   by  a            preponderance of  the evidence  to have "visibly  possessed a            firearm" in connection with his  offense of conviction.   The            Court held that the  statute did not violate the  Due Process            Clause.    See  McMillan,   477  U.S.  at  92.   ("[W]e  have                       ___  ________            consistently   approved   sentencing  schemes   that  mandate            consideration of  facts related  to the crime,  . . . without                                         -14-                                          14            suggesting  that   those  facts  must  be   proved  beyond  a            reasonable  doubt."  (citation  omitted)).    The Court  did,            however, take pains to place limits upon its holding:                      [The challenged  statute] operates solely                      to    limit   the    sentencing   court's                      discretion in selecting  a penalty within                      the range already available to it without                      the special finding of visible possession                      of  a  firearm.   [The statute]  "ups the                      ante" for  the defendant only by  raising                      to five years  the minimum sentence which                      may be imposed within the statutory plan.                      The statute gives no impression of having                      been  tailored  to   permit  the  visible                      possession  finding to  be a  tail  which                                                 ______________                      wags the dog of the substantive offense.                      _______________________________________            Id. at 88 (emphasis added).            ___                      Here,  in contrast,  the tail  has wagged  the dog.            The  consideration of  the  murders  at Lombard's  sentencing            upstaged  his  conviction  for   firearms  possession.    The            circumstances of this case that have combined to produce this            effect  raise  grave constitutional  concerns,  although each            doctrine  considered separately  might  not provoke  a second            thought.  Cf. United States v. Sepulveda, 15 F.3d 1161, 1195-                      ___ _____________    _________            96 (1st Cir. 1993) (circumstances that individually might not            warrant  appellate relief "may  in the aggregate  have a more            debilitating effect"  and that a cumulation  of circumstances            "may sometimes  have a logarithmic effect,  producing a total            impact  greater than  the arithmetic  sum of  its constituent            parts"), cert. denied, 114 S. Ct. 2714 (1994).                     ____________                                         -15-                                          15                      The  effect here  has been  to permit  the harshest            penalty outside of  capital punishment to be imposed  not for            conduct charged  and convicted  but for  other conduct  as to            which there was, at sentencing, at best a shadow of the usual            procedural  protections such  as  the  requirement  of  proof            beyond a reasonable doubt.  This other conduct   murder   was            surely of the  most serious sort, but exactly  the sort as to            which our jurisprudence  normally requires the government  to            meet its  full burden of  proof.  When  put to that  proof in            state court,  the government failed.   The punishment imposed            in view of this  other conduct far outstripped in  degree and            kind the punishment Lombard would otherwise have received for            the offense  of conviction.  There was no safety valve, or so            thought the trial judge, to adjust the Guidelines sentence of            life  imprisonment  to assure  consideration  of  the penalty            imposed in light of the process followed.  And that, in turn,            raises  questions as to  whether Lombard received,  as to his            sentence, the process that the Constitution says was due.                      While  we  discuss individual  concerns,  we stress            that it is the  interplay amongst these concerns which  is of            import,  and none  of these  concerns should  be examined  in            isolation.  We  start with the  paramount seriousness of  the            ostensibly "enhancing" conduct at issue.   A charge of murder            represents   the  very   archetype   of  conduct   that  "has            historically  been  treated   in  the  Anglo-American   legal                                         -16-                                          16            tradition  as  requiring proof  beyond  a  reasonable doubt."            McMillan,  477  U.S.  at  90 (citation  and  quotation  marks            ________            omitted).  Thus, a  rule structure that bars conviction  of a            firearms charge  except on  proof beyond a  reasonable doubt,            but  then permits imposition of a life sentence upon proof of            a  murder by  a  preponderance of  the evidence  attaches, in            effect, the  lesser procedural protections to  the issue that            would naturally be viewed as having the greater significance.                      That anomaly is heightened  by the specific  manner            in  which  the  Guidelines  operated here.    Unlike  certain            "relevant  conduct"  guidelines   that  simply  call   for  a            determinate increase in a  defendant's BOL based on specified            factual  findings, see, e.g., U.S.S.G.   2D1.1(b)(1) (calling                               _________            for  two-level increase  in BOL  for drug  conviction upon  a            finding that a  firearm was  possessed), the  cross-reference            provision that was applied in this case, U.S.S.G.   2K2.1(c),            required the district court to calculate Lombard's  BOL as if                                                                    _____            his offense  of conviction  had been  murder.   See  U.S.S.G.                                                            ___               2K2.1(c), 2X1.1 (Nov. 1990).8                      Particularly in light of  the absence of any stated                                                    _____________________            statutory  maximum for  the firearms  offense, see  18 U.S.C.            __________________                             ___              924(e),  the cross-reference  to  the  first-degree  murder                                            ____________________            8.  The current  version of the cross-reference  is even more            explicit, directing the court to apply,  in cases where death            resulted  from the  defendant's  offense  conduct, "the  most            analogous offense guideline from Chapter Two, Part A, Subpart            1 (Homicide)."  U.S.S.G.   2K2.1(c)(1)(B) (Nov. 1995).                                         -17-                                          17            guideline  essentially displaced  the lower  Guidelines range                                   _________            that otherwise would have applied.  As a result, the sentence            to be imposed for Lombard's  firearms conviction was the same            as  the sentence that would  have been imposed  for a federal            murder conviction:  a mandatory  term of  life.   Despite the            nominal characterization  of the murders as  conduct that was            considered in "enhancing"  or "adjusting" Lombard's  firearms            conviction, the reality is that  the murders were treated  as            the gravamen of the offense.                      As the enhancing conduct  in this case was serious,            so  too was the "enhancement."  Attribution of the murders to            Lombard  operated not merely to ratchet up his prison term by            some fractional  increment, but  rather wholly to  remove the            defendant's sentence  from  the term-of-years  continuum  and            transform it  into a life  sentence without  the prospect  of            parole.   That punishment represents "the  second most severe            penalty known to the law," Harmelin, 501 U.S. 957, 996 (1991)                                       ________            (Scalia,  J.).   It  qualitatively  differs  from any  lesser            sentence in  resting upon a determination  that the "criminal            conduct is so atrocious that society's interest in deterrence            and retribution wholly outweighs any considerations of reform            or rehabilitation of the perpetrator."  Id. at 2719 (Stevens,                                                    ___            J.,  dissenting) (citation and  quotation marks omitted); see                                                                      ___            also  Helm v.  Solem, 684 F.2d  582, 585 (8th  Cir. 1982) ("A            ____  ____     _____            life sentence  without parole  differs  qualitatively from  a                                         -18-                                          18            sentence  for  a term  of  years" because  it  represents the            "total[] reject[ion] of rehabilitation as a basic goal of our            criminal justice system."),  aff'd, 463 U.S. 277  (1983).  In                                         _____            short,  the  enhancement  at  issue not  only  increased  the            duration of Lombard's sentence,  but placed his punishment on            an entirely different order of severity.                      This  qualitative  difference   between  the   life            sentence  imposed and the  term of  years that  Lombard might            otherwise have received as  a prior offender (262-327 months)            implicates basic concerns of proportionality both between the            enhancement  and base  sentence and  between the  offense and            punishment as  a whole.   Even if these  concerns, considered            alone, might not  rise fully to  the level of  constitutional            significance, they  further distinguish  this case  from less            troubling ones.  The  comparative severity of the enhancement            invites scrutiny  of the  weight given  to factfinding as  to            ostensibly "enhancing" conduct (the murders) allocated to the            sentencing  phase, with its looser procedural constraints and            lesser  burden of  proof.    It  raises  the  danger  of  the            defendant's trial and conviction being turned into a means of            achieving an  end that  could not  be achieved  directly: the            imposition  of  a  life  sentence "enhancement"  based  on  a            federally unprosecutable murder.  In its interaction with the            other concerns  we describe, there is also an issue as to the            proportion  between  the  gravity  of  Lombard's  offense  of                                         -19-                                          19            conviction and the  severity of  his punishment.   If a  life            sentence without  parole is  appropriate for murder,  in most            instances that  sentence might appear to  be harsh punishment            for  the unlawful  possession of  a rifle,  even by  a career            criminal.   While  one  may doubt  whether  there are  Eighth            Amendment concerns9  lurking here, cf. Harmelin,  501 U.S. at                                               ___ ________            997-1001 (Opinion of  Kennedy, J.), the harshness of the life            sentence in relation to  the offense of conviction highlights            the need for rigorous inquiry.10                      Without  impugning  the  principle  that  acquitted            conduct  may  be  considered  in  determining  a  defendant's            sentence, the  prior state  court acquittal presents  another            concern  in  its interaction  here.   Lombard  put  the Maine            government to its proof on the charges of murder against him,            and a state court jury determined that reasonable doubt as to            his guilt persisted.  The federal prosecution followed on the            heels of the acquittal.   As the particular murders  at issue                                            ____________________            9.  Interestingly, the  Constitution of  the  State of  Maine            contains  an  explicit   proportionality  guarantee:   "[A]ll            penalties  and  punishments  shall  be  proportional  to  the            offence."    Me. Const.  art. I,    9.   Thus,  it is  a fair            question whether the Maine  Constitution would have permitted            the  resulting  sentence here  if  Maine  had done  what  the            federal prosecution did.            10.  It  bears  emphasis that  the  perceived  severity of  a            sentence is not,  standing alone, a basis  for departing from            the Guidelines  sentencing range.  United  States v. Jackson,                                               ______________    _______            30 F.3d 199, 203-04 (1st Cir. 1994).  Here, the  magnitude of            the  sentence enhancement is  of concern only  when viewed in            its interaction with the other aspects of this case.                                         -20-                                          20            were outside the sphere  of the federal prosecutor's criminal            charging power as  to murder,11 Lombard was not  charged with            murder in the federal indictment; the murders themselves were            not  alleged by  the  government  to  be  an  object  of  the            defendants' conspiracy; and the  federal jury was required to            make no factual determination regarding the commission of the            murders.  Yet it  would ignore reality not to  recognize that            the  federal prosecution arose out  of and was  driven by the            murders,  and that  the prosecution  was well aware  that the            Sentencing  Guidelines would  require  consideration  of  the            murders at  sentencing.   This reality was  reflected in  the            prosecution's statement at the pre-sentencing conference that            "it  was  quite clear  from  the beginning;  Mr.  Lombard was            looking  at a  life sentence."   The  government, by  its own                                            ____________________            11.  The  government conceded  at oral argument  that Lombard            and  Hartley could  not have  been charged  under any  of the            federal  murder  statutes.   See,  e.g.,  18 U.S.C.     1111,                                         __________            2113(e), 2118(c)(2); 21 U.S.C.   848(e).  The murders did not            take  place   on  any  federal  installation,   were  not  in            connection  with the robbery of a federally insured bank or a            robbery involving  federally controlled substances,  nor were            committed in  the course of a  continuing criminal enterprise            as defined  by federal law.   Whether or not it  could do so,            the  fact is that Congress  has chosen not  to federalize the            state crime of murder in cases like Lombard's, and so has not            authorized reprosecution for murder  pursuant to the doctrine            of separate sovereignties.  See  Abbate v. United States, 359                                        ___  ______    _____________            U.S. 187 (1959).  Thus, the issue raised is not one of Double            Jeopardy, nor, strictly speaking, of the reach of the federal            power, but one of  Due Process: whether the sentencing  court            is precluded  from considering that the Sentencing Guidelines            as applied,  through  the vehicle  of  sentence  enhancement,            effectively punishes  the defendant  for conduct as  to which            there exists  no statutory authorization  for the  government            even to prosecute.                                         -21-                                          21            words, had intended  "from the beginning" that  consideration            of the murders would result in a life sentence.                      Through the post-trial  adjudication of the murders            under  a lesser  standard of  proof, the  federal prosecution            obtained   precisely  the   result  that   the   Maine  state            prosecutors attempted,  but failed,  to obtain.   The federal            prosecution may well have done better.  The net effect of the            Guidelines  attribution  of   the  murders   to  Lombard   as            understood by the district court was to mandate imposition of                                                    _______            a life sentence.   This  was the maximum  that Lombard  could                                             _______            have  received had he been  convicted of murder  in the Maine            state  court.   See  Me. Rev.  Stat.  Ann. tit.  17-A,   1251                            ___            (setting minimum  sentence of 25 years and  maximum of life).            Indeed,  a   state  murder  conviction  might   have  yielded            something less severe than a life sentence.  See State v. St.                                                         ___ _____    ___            Pierre,  584  A.2d  618,  621-22 (Me.  1990)  (vacating  life            ______            sentence  and reducing sentence  to term  of 45  years, where            although  defendant "committed  a brutal murder,"  the record            failed to "establish behavior at the outermost portion of the            range  of  cruelty  that  would  constitute  the  aggravating            circumstances of  extreme cruelty").12   In any event,  in no                                                                       __                                            ____________________            12.  If  Lombard had  been convicted of  murder in  the Maine            state court and received  a sentence of a  term of years,  he            would have been eligible to receive credit against time to be            served under the "good  time" provisions of state  law, which            are   considerably  more   generous   than  similar   federal            provisions.  Compare Me. Rev. Stat. Ann. tit. 17-A,   1253(3)                         _______            (entitling  any person sentenced to  a term of  more than six                                         -22-                                          22            circumstances under Maine law would Lombard have been subject            _____________            to a mandatory life sentence.  See State v. Shortsleeves, 580                 _________                 ___ _____    ____________            A.2d 145, 149-50 (Me. 1990); St. Pierre, 584 A.2d at 621.                                         __________                      Although Lombard's firearms offense was the vehicle            by which  he was  brought into  the federal  criminal justice            system, the life sentence  resulted from the district court's            finding    that   the   defendant   had   committed   murder.            Characterized in  other terms, through the  mechanisms of the            Guidelines and  accompanying legal doctrines,  the sentencing            phase of the defendant's trial produced the conclusion he had            committed murder and mandated  imposition of a life sentence,            but  without   the  protections  which  normally  attend  the            criminal process,  such as the requirement of  proof beyond a            reasonable  doubt.    Given  the magnitude  of  the  sentence            "enhancement," the seriousness of the  "enhancing" conduct in            relation  to the  offense  of conviction,  and the  seemingly            mandatory  imposition  of  the  life  sentence,  this summary            process  effectively  overshadowed  the  firearms  possession            charge  and  raises  serious   questions  as  to  the  proper            allocation of  the procedural protections attendant  to trial            versus sentencing.  See United States v. Gigante, 39 F.3d 42,                                ___ _____________    _______                                            ____________________            months  "to receive  a deduction  of 10  days each  month for            observing all rules of  the department and institution") with                                                                     ____            18  U.S.C.   3624(b) (permitting up  to 54 days  of good time            credit per year to  prisoners serving terms of more  than one            year  but less  than  life but  allowing  no such  credit  to            persons serving a sentence for a crime of violence).                                         -23-                                          23            47 (2d Cir. 1994) ("[W]e agree that there is a constitutional            requirement of some rough proportionality between  the weight            of  the evidence of the  uncharged conduct and  the degree of            [the sentencing] adjustment . . . .").  We would be hard  put            to think  of a better example  of a case in  which a sentence            "enhancement" might  be described as  a "tail which  wags the            dog" of the defendant's offense of conviction.  McMillan, 477                                                            ________            U.S. at 88.                      The convergence of circumstances and processes that            yielded Lombard's life sentence distinguishes this case  from            United States v. Mocciola,  891 F.2d 13, 17 (1st  Cir. 1989),            _____________    ________            and its progeny.  Mocciola itself involved the attribution to                              ________            the defendant  of an  acquitted firearms offense  pursuant to            U.S.S.G.   2D1.1(b)(1)13  and  rejected the  contention  that            consideration of the acquitted conduct (under a preponderance            of the evidence standard) was unconstitutional.  Id. (quoting                                                             ___            McMillan, 477  U.S. at 91, and Wright, 873 F.2d at 441).  The            ________                       ______            acquitted conduct considered in Mocciola, a firearms offense,                                            ________            was well  within the sphere of  ordinary federal prosecution.            The  consideration of the acquitted conduct in Mocciola had a                                                           ________                                            ____________________            13.  The defendant had pleaded guilty on a cocaine conspiracy            charge,  but went to trial  and was acquitted  by the federal            jury  on a firearms possession charge arising out of the same            course of conduct.  See Mocciola, 891 F.2d at 14.                                ___ ________                                         -24-                                          24            relatively limited effect, simply increasing  the sentence by            two offense levels (15 months).  See id. at 15, 17.14                                             ___ ___                      In United States  v. Carrozza, 4 F.3d  70 (1st Cir.                         _____________     ________            1993),  cert.  denied,  114  S. Ct.  1644  (1994),  defendant                    _____________            Patriarca's  appeal  raised  the  question  whether "relevant            conduct" under U.S.S.G.   1B1.3  could include two murders of            which  Patriarca himself had not  been charged, but which had            been committed in furtherance of  the conspiracy to which  he            had pleaded  guilty.  This court answered in the affirmative,            reversing the district judge's conclusion.  See id. at 80-81.                                                        ___ ___                      Carrozza  supports  the  analysis  here  in several                      ________            important respects.  Although defendant Patriarca himself had            not been charged federally  with murder, at least one  of his            confederates had pleaded guilty to such a charge in a related                                            ____________________            14.  At least two post-Mocciola  cases from this circuit were                                   ________            likewise  decided  on facts  dissimilar to  the circumstances            here.  See United States v. Gonzalez-Vazquez, 34 F.3d 19, 23-                   ___ _____________    ________________            26 (1st  Cir. 1994)  (upholding, after drug  conviction, two-            level  sentence enhancement  under U.S.S.G.    2D1.1(b)(1) in            view  of conduct  alleged  in a  dismissed firearms  charge);            United  States v. Jackson, 3 F.3d 506, 509-10 (1st Cir. 1993)            ______________    _______            (same, in view of uncharged conduct of which co-defendant was            acquitted).                 Also, in   United States  v. LaCroix, 28  F.3d 223  (1st                            _____________     _______            Cir. 1994), the  holding of Mocciola was restated  in dictum,                                        ________            but the only issue was whether certain financial losses could            be attributed  to the defendant under  the "relevant conduct"            provision  of  U.S.S.G.    1B1.3(a)(1)   (June  1988).    The            defendant  had  been  convicted   as  a  participant  in  the            conspiracy  that  caused  those  losses,  but  the  jury  had            deadlocked on  the substantive counts.   The jury's inability            to  reach consensus on the substantive counts was held not to            preclude a  finding that the  losses were foreseeable  to the            defendant  as a convicted co-conspirator.  See id. at 230-31.                                                       ___ ___            LaCroix does not aid the resolution of this case.            _______                                         -25-                                          25            case.  See United States v. Patriarca, 807 F.  Supp. 165, 185                   ___ _____________    _________            (D.  Mass. 1992), vacated,  Carrozza, 4 F.3d  70.  Certainly,                              _______   ________            there  had  been  no   acquittal.    Even  more  importantly,            Carrozza's holding was based  on the explicit assumption that            ________            consideration of the murders  would not necessarily result in                                                ___            a life sentence.  In fact, the  district court had refused to            consider  the  uncharged  murders  in  sentencing  Patriarca,            troubled  by the prospect of exposing the defendant to a life            sentence  on the  basis  of uncharged  conduct.   This  court            rejected  the  premise  of  the  district  court's   concern,                           _______            explaining that  Patriarca's offenses  of  conviction    RICO            violations    carried statutory  maximum sentences of  twenty                                             _______               ______            years each.  See  Carrozza, 4 F.3d at 81.   But even so,  the            _____        ___  ________            panel was  careful to  reserve decision  as to  whether there            might remain a basis  for concern if the district  court were            to order Patriarca to serve consecutive twenty-year sentences                                        ___________            on  each  of  his   three  RICO  convictions,  the  practical            equivalent of a life sentence.  The court openly acknowledged            that it was troubled by this potentiality:                      At least one member of the panel believes                      that serious  constitutional concerns may                      arise   if   the   defendant   ultimately                      receives  the   equivalent  of   a   life                      sentence  on the ground of his connection                      with a  murder  for  which he  was  never                      indicted, tried or convicted by a jury.            See id. at 81 n.9.            ___ ___                                         -26-                                          26                      The situation hypothesized in Carrozza is closer to                                                    ________            the  one  we  face  here,  with  added  amplifying  elements.            Lombard was acquitted of  the murders by a state  court jury.                        _________            Nonetheless he received  not just "the  equivalent of a  life            sentence" based  on attribution  of the  murders, but  a true            life sentence, and  a mandatory  one at that.   Further,  the            sentence  imposed may have been even more severe than what he            would have received had he been convicted in state court.  We            believe,  as  did  "at least  one  member  of  the panel"  in            Carrozza, that  the life sentence imposed  upon the defendant            ________            raises "serious constitutional concerns."  Id.                                                       ___                      These  concerns  are   reinforced  by  the  Supreme            Court's recent  discussion in Witte v. United  States, 115 S.                                          _____    ______________            Ct. 2199 (1995).   The  Court framed its  analysis by  asking            when  a  sentence  enhancement  can  properly  be  viewed  as            punishment  for  the offense  of  conviction,  as opposed  to                        ___            punishment  for  the  enhancing  conduct.    While  the  case                        ___            involved a Double Jeopardy  and not a Due Process  challenge,            its discussion is instructive here: if the life sentence that            Lombard received  can realistically  be viewed  as punishment            for the  murders, as opposed  to punishment for  the firearms            ___            offense,   the  constitutional  difficulties  alluded  to  in            McMillan then come to the fore.            ________                      In  Witte, the  defendant had  been convicted  on a                          _____            marijuana charge,  then received  an enhanced prison  term in                                         -27-                                          27            view of certain cocaine-related "relevant conduct" considered            at  sentencing.  Later, the defendant was prosecuted for that            same cocaine-related conduct.  He objected on double jeopardy            grounds, arguing that  he had already  been punished for  the                                                                 ___            cocaine-related conduct by virtue of the sentence enhancement            following  the  marijuana  conviction.    The  Supreme  Court            disagreed and held  that the defendant  had been punished  in            the first prosecution only for the offense of conviction (the                                       ___            marijuana  charge),  even  though  the  sentencing court  had            considered  the  cocaine-related conduct  in  calculating his            sentence.  See  id. at 2207.  In so  concluding, however, the                       ___  ___            Court  emphasized  that  the  sentence  for  the  defendant's            offense of  conviction (the  marijuana charge) had  carried a            statutory maximum,  and the "enhancement" to  the defendant's            sentence had  merely fixed the  term of imprisonment  at some            point closer to (but still below) that maximum:                      The relevant  conduct provisions  of  the                      Sentencing    Guidelines    . . .     are                      sentencing  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.  Petitioner                                                     __________                      does not  argue that  the range  fixed by                      _________________________________________                      Congress is so broad,  and the  enhancing                      _________________________________________                      role  played by  the relevant  conduct so                      _________________________________________                      significant,  that consideration  of that                      _________________________________________                      conduct in sentencing has become  "a tail                      _________________________________________                      which  wags  the  dog of  the substantive                      _________________________________________                      offense."    McMillan,  477  U.S.  at  88                      ________     ________                      . . . .   We   hold   that,   where   the                      legislature   has   authorized   such   a                      particular punishment range  for a  given                      ___________________________                                         -28-                                          28                      crime, the resulting sentence within that                                                    ___________                      range constitutes punishment only for the                      _____                      offense of conviction for purposes of the                      double jeopardy inquiry.            Witte,  115 S. Ct.  at 2208  (emphases added,  some citations            _____            omitted).                      This   case   presents   precisely  the   troubling            situation  that Witte  makes  an effort  to distinguish:  the                            _____            applicable statutory sentencing range (fifteen years minimum,            no  stated maximum)  is quite broad,  and the  enhancing role            played  by   the  relevant  conduct      the  murders      is            inordinately  significant.   The  effect  of considering  the            murders was not just to fix Lombard's sentence at some higher                        ___            point within a particular range delimited by Congress for the            firearms offense.15   Instead, the  Guidelines, combined with                                            ____________________            15.  This is  in striking contrast  to the case  of Lombard's            co-defendant, Hartley.   After he pleaded guilty, Count  3 of            the indictment was  dismissed as to  him on the  government's            motion.  Hartley's  BOL of 12 as to Count  1, with a criminal            history category of I, would have yielded a sentence of 10-16            months. The district court  found that Hartley, like Lombard,            was  subject to  the  cross-reference  provision of  U.S.S.G.              2K2.1(c).   But,  as  the government  informed  us at  oral            argument,  Hartley   who did not qualify as a career criminal              had the  benefit of  a five-year statutory  maximum on  his                                     _________            conviction  under Count 1, see 18 U.S.C.   371, which is what                                       ___            he received after his plea.  (Had Count 3 not been dismissed,            Hartley  likely  would  have  been subject  to  the  ten-year                                                                 ________            statutory  maximum contained  in  18  U.S.C.   924(a)(2)  for            aiding  and  abetting  the  firearms  offense.)    Thus,  for            Hartley,   consideration  of   the  murders   under  U.S.S.G.              2K2.1(c)  only had  the effect  of increasing  his sentence            from a base of 10-16 months to the  statutory maximum of five            years, even though Tammy Theriault's testimony indicated that            Hartley  shared at  least equal  blame  with Lombard  for the                                _____            murders.                                         -29-                                          29            the  absence  of  a  stated  statutory  maximum,  essentially            required  the  district  court  to  determine Lombard's  base            offense level as if his offense of conviction had been first-                          _____            degree  murder.16    See  U.S.S.G.   2K2.1(c).    This  comes                                 ___            perilously close,  we believe,  to punishing Lombard  for the                                                                  ___            ostensibly "enhancing" conduct, the murders.17                                            ____________________            16.  Cases  from other circuits addressing the permissibility            of considering acquitted (or uncharged) conduct at sentencing            generally  have involved  only modest sentence  increases, or            increases  that were  within a  stated statutory  maximum, or            both, and so provide little guidance here.  See, e.g., United                                                        _________  ______            States  v.  Hunter,  19  F.3d 895,  896-97  (4th  Cir.  1994)            ______      ______            (affirming  2-level sentence  enhancement on  drug conviction            based  on an  acquitted  firearms charge);  United States  v.                                                        _____________            Smith,  5  F.3d  259,   261-62  (7th  Cir.  1993)  (affirming            _____            imposition  of  statutory maximum  sentence  of  5 years  for            firearms  conviction  based  on  finding at  sentencing  that            defendant  had committed  second degree  murder,  even though            defendant had been convicted only of involuntary manslaughter            in  state court);  United States  v. Galloway, 976  F.2d 414,                               _____________     ________            424-26   (8th   Cir.   1992)   (en   banc,   7-5)  (approving            consideration   of  uncharged   property  theft   to  enhance            sentencing range on conviction  for interstate theft from 21-            27 months  to 63-78  months, where statutory  maximum was  10            years),  cert. denied, 113 S.  Ct. 1420 (1993); United States                     ____________                           _____________            v. Bronaugh, 895 F.2d 247,  250-52 (6th Cir. 1990) (affirming               ________            increase of sentence for firearms conviction from range of 4-            27  months to  statutory  maximum  of  five years,  based  on            uncharged  drug  trafficking   offenses);  United  States  v.                                                       ______________            Juarez-Ortega,  866 F.2d  747,  748-49 (5th  Cir. 1989)  (per            _____________            curiam) (affirming increase of sentence  for drug conviction,            within statutory maximum, based on consideration of acquitted            firearms charge).            17.  The application of section 2K2.1(c) here might be viewed            as being  less  like the  sentencing statute  approved of  in            McMillan  and  similar  cases,   and  more  like  the  scheme            ________            invalidated in Specht v. Patterson, 386 U.S. 605, 607 (1967).                           ______    _________            In Specht, the Court  held that where the defendant  had been               ______            convicted  under a  sex offender  statute carrying  a 10-year            maximum  penalty,   the  state  could   not  constitutionally            sentence him without a hearing (with appropriate  protections            such as the  right to counsel and to cross-examine witnesses)                                         -30-                                          30                      In  the aftermath  of Witte,  this court  in United                                            _____                  ______            States v. Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995), recently            ______    ____________            noted  that the manner in  which a sentence  is enhanced over            and  above  the sentence  that  a  defendant would  otherwise            receive is subject to constitutional limits:                      [T]he   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.            Id. at 1001.            ___                      There  is substantial reason  for concern  that the            "enhancement" that produced  Lombard's life sentence exceeded            these limits.   The convergence that  produced Lombard's life            sentence, we believe,  is exactly the reason for  the Supreme            Court's reserve  in McMillan and  in Witte when  it carefully                                ________         _____            withheld   its   constitutional  blessing   for   a  sentence            "enhancement" that  would be a "tail which wags the dog" of a            defendant's   offense   of   conviction.     That   troubling            hypothetical is the reality here.                                            ____________________            under   a  separate   but  related  statute   that  permitted            imposition of a sentence of 1 day to life based on proof that            the  defendant posed a threat  of bodily harm  to the public.            Cf.  Galloway,  976 F.2d  at  441-42 (en  banc)  (Bright, J.,            ___  ________            dissenting)  (comparing  operation  of the  relevant  conduct            provision of U.S.S.G.   1B1.3(a)(2) (Nov. 1991) to the scheme            invalidated in Specht).                           ______                                         -31-                                          31                      2.   Considering  Departure: Outside                           _______________________________                           the "Heartland"                           ______________                      Against this  background, we look  first to whether            the  Guidelines themselves  are indeed  so inflexible  as the            government  urged at  sentencing,  or whether  they permit  a            different result, and if so, whether  that result would avoid            the constitutional issue.  See United States v. Monsanto, 491                                       ___ _____________    ________            U.S. 600,  611 (1989); Edward  J. DeBartolo Corp.  v. Florida                                   __________________________     _______            Gulf  Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575            __________________________________________            (1988).  We hold that a sentence of life imprisonment was not            an inexorable outcome under the Guidelines, that this case is            within the scope of section 5K2.0 which provides flexibility,            and  that, under our  decision in Rivera,  the district court                                              ______            had authority  to avoid any unfairness  in Lombard's sentence            through the mechanism of downward departure.                      The principles governing downward  departures under            the  Sentencing Guidelines  were comprehensively  outlined by            this court in United States v. Rivera, 994 F.2d 942 (1st Cir.                          _____________    ______            1993),  and  we apply  its  teachings  here.   A  fundamental            premise of the Sentencing  Guidelines is that "each guideline            . . .  carv[es] out  a 'heartland,'  a set  of  typical cases            embodying   the  conduct  that   each  guideline  describes."            U.S.S.G. Ch.  1, Pt. A,  intro. comment. (4)(b);  see Rivera,                                                              ___ ______            994  F.2d  at  947.    As the  Sentencing  Commission  itself            recognized,  however, some  cases will  involve circumstances            that make them atypical and  remove them from the "heartland"                                         -32-                                          32            of  a  guideline's literal  scope.   U.S.S.G.  Ch. 1,  Pt. A,            intro.  comment.  (4)(b).   A case  that  falls outside  of a            guideline's heartland "is, by definition, an 'unusual  case'"            and therefore  a candidate for downward  or upward departure.            Rivera,  994 F.2d  at  947.   The  basic question,  then,  is            ______            simply:  "Does this  case fall within the 'heartland,'  or is            it an unusual case?"  Id. at 948.                                  ___                      The  Sentencing Commission has  been explicit that,            with  several  notable  exceptions  not  applicable here,  it            "d[id] not intend to  limit the kinds of factors,  whether or            not  mentioned anywhere  else in  the guidelines,  that could            constitute  grounds   for  departure  in  an  unusual  case."            U.S.S.G.  Ch.  1,  Pt.  A,  intro.  comment.  (4)(b).     The            Guidelines themselves recognize that  even if a case presents            no  circumstances  specifically  identified   as  permissible            grounds  for departure,  the case  may still  be sufficiently            unusual to warrant it:                      Circumstances that  may warrant departure                      from  the  guidelines  pursuant  to  this                      provision cannot, by  their very  nature,                      be comprehensively listed and analyzed in                      advance.  The controlling decision  as to                      whether and  to what extent departure  is                      warranted can only be made by the courts.                      . . .  Any case  may involve  factors  in                      addition to  those identified  that  have                      not been given  adequate consideration by                      the  Commission.   Presence of  any  such                      factor  may  warrant  departure  from the                      guidelines, under  some circumstances, in                      the discretion of the sentencing court.                                         -33-                                          33            U.S.S.G.   5K2.0.   The  commentary to section  5K2.0 further            provides  that  even  where  various   single  circumstances,            considered individually,  might be insufficient  to permit  a            finding  that a case is outside the heartland of a particular            guideline, the presence of those circumstances in combination            might permit a different assessment:                      The  Commission  does  not  foreclose the                      possibility  of   an  extraordinary  case                      that, because of a  combination of  . . .                      characteristics  or  circumstances  [that                      separately would  not warrant departure],                      differs     significantly     from    the                      "heartland"   cases    covered   by   the                      guidelines in a  way that is important to                      the  statutory  purposes  of  sentencing,                      even though none  of the  characteristics                      or       circumstances       individually                      distinguishes the case.            U.S.S.G.   5K2.0,  comment. (Nov. 1995).18   The  Guidelines,            in  short, do  not always  mandate the  appropriate sentence.            See  Rivera,   994  F.2d  at  949   ("Ultimately,  . . .  the            ___  ______            Guidelines cannot dictate how  courts should sentence in such            special, unusual or other-than-ordinary circumstances.").                      Although   the  district   court  is   entitled  to            considerable "leeway" in its determination of whether a given                                            ____________________            18.  Amendments  to  the  Guidelines  that  are  intended  to            clarify rather than change the Guidelines' operation, such as            _______            the 1994  amendments to the commentary  to section 5K2.0, may            be  applied retroactively.  See United States v. Doe, 18 F.3d                                        ___ _____________    ___            41, 47  (1st Cir. 1994); see  also LaCroix, 28 F.3d  at 227 &                                     _________ _______            n.4 (stating  that  clarifying amendments  to the  Guidelines            "may  be taken into account retrospectively,  not only by the            sentencing  court  . . .  but  also  on  appeal"   (citations            omitted)).                                         -34-                                          34            set of circumstances renders a particular case "unusual," id.                                                                      ___            at  951, this court  has plenary review  over legal questions            involving  interpretation  of  the  Guidelines  and  over the            district court's determination of whether it had authority to            depart  based on  its assessment  of the  relevant sentencing            facts.  See id. at 951.                    ___ ___                      Here, the  district court did  not consider whether            departure would have been appropriate under U.S.S.G.   5K2.0.            At Lombard's sentencing hearing, the district court expressed            considerable  unease  at  the  sentence  of  mandatory   life            imprisonment that  had resulted  from  its consideration,  as            required   by   the   Guidelines,  of   Lombard's   acquitted            conduct.19    The  government   asserted  at  the  sentencing            hearing that the  Guidelines "leave this court  in essence no                                                                       __            discretion  whatsoever  to   sentence  [Lombard]  below  life            __________  __________            imprisonment  [emphasis added]."   The district court thought            that  it lacked authority  to impose any  sentence other than            life imprisonment.  The  court also did not consider  whether            the  constitutional questions  raised by  the  mandatory life            sentence might warrant a finding that this case falls outside            the  heartland  of  the   applicable  guideline.    Thus,  we            conclude, as did the court in Rivera, that the district court                                          ______                                            ____________________            19.  For example, the district court worried: "The problem is            that  th[is] scenario is very difficult for me to accept when            the  whole concept of our criminal justice system is based on            innocent until proven guilty, and when there is an acquittal,            there has been no proof of guilt."                                         -35-                                          35            erroneously  believed  it had  no power  to deviate  from the            sentence  indicated by a  straightforward application  of the            Guidelines and "did not  realize that it had the  legal power            to    consider   [downward]   departure"   in   the   special            circumstances presented.  See Rivera, 994 F.2d at 953.                                      ___ ______                      The facts and circumstances  of this case present a            whole greater than the  sum of its parts and  distinguish it,            from a constitutional perspective, from other cases that have            involved facially similar issues.  The specific question from            the perspective of the  Guidelines and under U.S.S.G.   5K2.0            is whether these features of the case   e.g., the state court                                                    ____            acquittal and the  fact that the federal  sentence may exceed            any  state  sentence that  would  have attached  to  a murder            conviction;  the  paramount  seriousness  of  the  "enhancing            conduct";   the   magnitude   of   the   "enhancement";   the            disproportionality  between the sentence  and the  offense of            conviction  as well as  between the enhancement  and the base            sentence; and  the absence  of a  statutory  maximum for  the            offense of conviction   taken in  combination, make this case            "unusual" and remove it from the "heartland" of the guideline            (  2K2.1)  that yielded  the mandatory  life sentence.   This            case is outside the "heartland."                      The  Sentencing  Commission  in   writing  U.S.S.G.              2K2.1(c)  was undoubtedly  aware  that the  cross-reference            provision might  in some  cases call  for a defendant's  base                                         -36-                                          36            offense level to be determined by  reference to the guideline            governing murder.  See U.S.S.G.   2K2.1(c)(1)(B) (Nov. 1995).                               ___            But from  our "intermediate vantage point"  in the sentencing            process, we  try to place particular cases  within "a broader            perspective  of sentencing law," Rivera, 994 F.2d at 949.  It                                             ______            seems  to   us  unlikely  that  the   Commission  could  have            envisioned the particular  combination of circumstances  that            in  this case culminated  in the mandatory  life sentence and            the corresponding institutional concerns.                      Whether  or not constitutional concerns were raised            by these  circumstances, as  we think they  are, we  conclude            that their  combination here gave  the court power  to depart            under  U.S.S.G.    5K2.0.     That  the  application  of  the            Guidelines  that produced  the mandatory  life sentence  does            raise constitutional concerns only reinforces our conclusion.            This case  may be  viewed   virtually  by definition    as an            "unusual"  one  falling  outside  the  heartland  of  section            2K2.1(c).   To decide otherwise  would be to  assume that the            Commission   intended   that  the   application   of  section            2K2.1(c)'s  cross-reference  provisions  could,  even   in  a            heartland   case,   produce    sentences   raising    serious            _________            constitutional  issues.   This we  cannot do.   Cf.  Burns v.                                                            ___  _____            United  States, 501  U.S.  129, 137-38  (1991) (declining  to            ______________            credit  an interpretation of Fed.  R. Crim. P.  32 that would                                         -37-                                          37            effectively  impute  to  Congress  an  intent  to  produce  a            potentially unconstitutional result).                      One of  the major  goals of the  sentencing reforms            enacted by Congress  was to "assure  that sentences are  fair            both to  the offender and to society."  S. Rep. No. 225, 98th            Cong.,  2d Sess.  39 (1984),  reprinted in  1984 U.S.C.C.A.N.                                          ____________            3182, 3222, quoted in  United States v. LaBonte, __  F.3d __,                        _________  _____________    _______            __, No.  95-1538, slip  op. at  24 (1st  Cir. Dec. 6,  1995).            That sense of fairness is better served here by giving effect            to the discretion preserved  to the courts by  the Commission            in  U.S.S.G.   5K2.0.   If  a goal  of the  Guidelines is  to            "avoid[] unwarranted sentencing disparities  among defendants            with similar records  who have been  found guilty of  similar            criminal conduct," 28 U.S.C.    991(b)(1)(B), it is difficult            to see how  mandating imposition  of a life  sentence on  the            facts here  serves that  goal.  It  is the conduct  for which            there has been no conviction  which raises the sentence  here            to a life term, and then only by means of a finding by a mere            preponderance  of the evidence.  Yet a  life term is the same            sentence that  would have  been imposed for  a conviction  of            murder.  Giving unbridled effect here to the cross-referenced            murder  guideline would,  instead of  furthering the  goal of            treating like  cases alike, ignore the  very real differences            inherent  in  our  system   of  criminal  justice  between  a            conviction  for murder  based  on proof  beyond a  reasonable                                         -38-                                          38            doubt and a  firearms conviction enhanced  by a finding  that            guns  were  used  to  commit  the  same  murder  based  on  a            preponderance of the evidence.  Cf. Gigante, 39 F.3d at 47-48                                            ___ _______            (characterizing   preponderance  standard  as  a  mere  "tie-            breaker" for evenly balanced evidence).  Viewing this case as            falling outside the heartland  of section 2K2.1(c) seems more            consistent  with  the  sentencing goals  set  by  Congress.20            See LaBonte, __ F.3d at __, slip. op. at 24.            ___ _______                      The  Guidelines were not  meant to  have foreclosed            the district court from considering a section 5K2.0  downward            departure here.   Cf. United States v. Cuevas-Gomez,  61 F.3d                              ___ _____________    ____________            749,  750 (9th  Cir.  1995) (noting  that automatic  16-level            sentence  enhancement for  certain defendants  under U.S.S.G.              2L1.2(b)(2) averts due process problems "precisely because"            the district court has discretion to consider departure based            on  the individual facts of the case).  Certainly, a downward            departure here would not be forbidden.   See id.; Concepcion,                                                     ___ ___  __________            983  F.2d at  389.    Had  such  a  downward  departure  been            considered,  the impact  of giving  sentencing weight  to the            acquitted murders  could have  been tempered by  the district                                            ____________________            20.  Of course, where the text of an  applicable guideline is            clear, the sentencing court  may not rely upon its  own views            about the purposes of sentencing nor upon a personal sense of            inequity  to deviate  from the  Guidelines  sentencing range.            See, e.g., United  States v.  Talladino, 38  F.3d 1255,  1265            _________  ______________     _________            (1st Cir. 1994).  Here the sentencing policies articulated by            Congress strengthen the analysis  of why the unusual features            of this case warrant consideration of a downward departure.                                         -39-                                          39            court's  fact-based, discretionary  judgment.   That judgment            would have been  informed by the background principle  that a            sentence enhancement may  not function as a  "tail which wags            the dog" of the defendant's offense of conviction.                      The  approach  adopted  here  is  similar  to  that            adopted  by the Second Circuit, which  has used the mechanism            of downward departure  to resolve a situation similar to this            one.    In  United  States   v.  Concepcion,  one  of   three                        ______________       __________            codefendants (Frias)  was convicted on a  firearms charge but            acquitted  of  a drug  conspiracy  charge.   On  the firearms            charges  alone, the  defendant's guidelines  sentencing range            would have  been 12-18 months.   Applying the cross-reference            in U.S.S.G.    2K2.1 (the same provision at  issue here), the            district  court had  found  that the  defendant actually  had            engaged  in the  acquitted conduct,  and thus  determined his            base  offense  level with  reference  to that  conduct.   The            result  was  a  24-level  upward  adjustment,  with  a  final            Guidelines sentencing range of  210-262 months.  983 F.2d  at            389.                      The  Second  Circuit,  reviewing   settled  circuit            precedent, held that the  district court had properly applied            the  Guidelines,  and  that  the  defendants'  constitutional            rights  had not  been violated  by the  consideration of  the            acquitted conspiracy charge.  Yet the court expressed serious            discomfort with  the magnitude  of  the sentence  enhancement                                         -40-                                          40            that had resulted.  It observed: "we doubt that, with respect            to  conduct  of  which   the  defendant  was  acquitted,  the            [Sentencing]  Commission intended  so  extreme an  increase."            Id.;21 see also  United States v.  Monk, 15 F.3d 25,  26, 28-            ___    ________  _____________     ____            29  (2d  Cir.  1994).    The  court  concluded  that  in  the            circumstances  of  that  case,  a  downward  departure  under            U.S.S.G.    5K2.0 might  well have  been warranted.   Because            "the  [district]  court  apparently  [had]  not  consider[ed]            whether such a departure was permissible," the Second Circuit            vacated the  sentence and remanded  for further  proceedings.            Id.22            ___                                            ____________________            21.  Concurring,  Judge  Newman expressed  his own  view more            sharply:                 Under  the  rigor of  the  current  Guidelines, the                 sentencing judge is required to assess  evidence of                 relevant misconduct,  notwithstanding an acquittal,                 and,  if  persuaded  by  a  preponderance  of   the                 evidence  that  such   misconduct  occurred,   must                 enhance the sentence according to the same scale of                 severity that would have applied  had the defendant                 been  convicted  of the  misconduct.  . . .   Thus,                 after  [defendant]  was tried  for  the  conspiracy                 offense and acquitted,  he faces virtually the same                 sentence that  he would  have received had  he been                 convicted! . . . When  the Guidelines and  the case                 law implementing  them permit such a  result, it is                 high time for both the Commission and the courts to                 give  serious reconsideration to the decisions that                 underlie this outcome.            983 F.2d at 395 (Newman, J., concurring) (paragraph structure            omitted).            22.  On remand, the district court determined that a downward            departure   was  indeed   appropriate  and   resentenced  the            defendant to  a term of  144 months.   This new sentence  was            affirmed.  See United States v.  Frias, 39 F.3d 391, 392  (2d                       ___ _____________     _____                                         -41-                                          41                      On  the facts here, we are not as confident, as was            the   Second  Circuit  in   Concepcion,  that   the  sentence                                        __________            enhancement  at issue  passes constitutional  muster.   We do            share the doubts  of the Second  Circuit that the  Sentencing            Commission  could have  foreseen the  kinds  of circumstances            which in this case have coalesced to produce a mandatory life            sentence,  and  we  agree  that  in  these  circumstances,  a            downward  departure  under U.S.S.G.    5K2.0  was  within the            court's discretion.                      This case presents  difficult and delicate  issues,            not  now susceptible  of articulation through  general rules.            Our  concerns have  arisen from  a situation  where acquitted            conduct  calling  for  the challenged  sentence  increase  is            itself very serious conduct,  substantively more serious than            the  offense  with   which  defendant   was  charged,   where            consideration  of  that  conduct  resulted  in   an  enormous            increase23  in the  sentence  (including possibly  beyond the            sentence  that would  have  been imposed  for a  conviction),            where the ultimate sentence is itself enormous, and where the                                            ____________________            Cir. 1994)  (per  curiam),  cert. denied,  115  S.  Ct.  1433                                        ____________            (1995).            23.  Whether  an  increase in  a  sentence is  enormous  is a            matter  of  degree,  not resolved  simply  by  the  labels of            ratios,  percentages, or the like.  For example, no one would            deny the real  difference between an  increase of a  sentence            from one  year to three years  and an increase from  20 to 60            years,  even  though  each  represents  an  increase  of  300            percent.                                         -42-                                          42            judge  is seemingly mandated to impose that sentence.  Such a            situation  increases the risk that what the judge is required            to and  in fact is  sentencing the  defendant for is  not the            convicted  offense  as  enhanced  by  relevant  conduct,  but            directly for conduct as  to which the defendant has  not been            charged, tried by  a jury,  nor convicted on  proof beyond  a            reasonable doubt.  See Rivera-Gomez, 67 F.3d at 1001.                               ___ ____________                      The concerns  which  the district  court  expressed            here  are valid, and  we have tried to  state the reasons for            those concerns, and forcefully  so.  But we also  stress that            this is an extreme case.  Absent the special circumstances we            have highlighted here, no comparable concerns would be raised            by cases involving even  sizeable sentence increases based on            an  uncharged  quantity  of   drugs,  see  United  States  v.                                                  ___  ______________            Castellone,  985 F.2d 21, 24 (1st Cir. 1993), an uncharged or            __________            acquitted  firearms offense, see  United States  v. Gonzalez-                                         ___  _____________     _________            Vazquez, 34  F.3d  19, 25  (1st Cir.  1994), the  defendant's            _______            commission of  an  unchargeable  state  offense,  see  United                                                              ___  ______            States  v. Carroll, 3 F.3d 98 (4th  Cir. 1993), or any number            ______     _______            of  kindred sentence enhancements.  The outcome we adopt here            should  not  be  understood  as  an  invitation  to  litigate            constitutional or departure  issues in usual cases  involving            sentence   enhancements  based  on   uncharged  or  acquitted            conduct.   This is an unusual and perhaps a singular case, at                                         -43-                                          43            the boundaries of constitutional sentencing law, and does not            provide an open door.                      Because the  district court did  not recognize  its            authority to consider whether a downward departure would have            been  appropriate, we  vacate  Lombard's  life  sentence  and            remand for  further proceedings.24   See Rivera, 994  F.2d at                                                 ___ ______            953;  United States v. Castiello,  915 F.2d 1,  5-6 (1st Cir.                  _____________    _________            1990)  (remanding  for  resentencing  where   district  court            erroneously  thought  it  had no  power  to  depart  from the            guidelines  sentencing range),  cert.  denied, 498  U.S. 1068                                            _____________            (1991);  cf. United States v. Garafano, 61 F.3d 113, 116 (1st                     ___ _____________    ________            Cir.  1995)  (appellate courts  have  broad  power to  "adapt            mandates to the particular problem discerned on appeal").            C.  Acceptance of Responsibility                ____________________________                      Lombard's claim that the district court erroneously            refused  to award  him  sentencing credit  for acceptance  of            responsibility  under U.S.S.G.    3E1.1(a) is  without merit.            Lombard  has  not met  his  burden  of clearly  demonstrating            acceptance  of  responsibility  for  his  offense.   U.S.S.G.              3E1.1(a).  Review  of the adequacy of the defendant's proof            is only for clear error.  See United States v. Ocasio-Rivera,                                      ___ _____________    _____________            991 F.2d 1, 4 (1st Cir. 1993).                                            ____________________            24.  The government agreed at  oral argument that if  we were            to find that the district court erroneously believed  that it            lacked  authority to grant a downward departure, a remand for            resentencing would be the proper remedy.                                         -44-                                          44                      Lombard appears to contend that prior incriminating            statements made  by him,  e.g., his admissions  at his  state                                      ____            trial that he owned the .22 caliber rifle and helped to clean            up the  cabin after the murders,  demonstrate his "acceptance            of responsibility."   Hardly so.  These  statements were made            to defend against state charges and cannot plausibly be taken            as warranting  a sentence  reduction under  section 3E1.1(a).            The  making  of an  incriminating  statement  cannot, without            more, establish  acceptance  of responsibility.   Cf.  United                                                              ___  ______            States  v. Wrenn, 66 F.3d  1, 2-3 (1st  Cir. 1995) (divulging            ______     _____            incriminating information  to  government informant  did  not            establish eligibility for sentencing leniency under 18 U.S.C.              3553(f)).                      Application note  2 to  section 3E1.1  specifically            cautions  that  in  most  circumstances,  the  acceptance-of-            responsibility  credit  "is  not   intended  to  apply  to  a            defendant who puts the  government to its burden of  proof at            trial by  denying the essential factual elements of guilt, is            convicted, and only then admits guilt and expresses remorse."            U.S.S.G.    3E1.1, comment. (n.2).  Lombard has not even done            that much:  the record  discloses not even  a post-conviction            admission  of guilt  or remorse with  respect to  the federal            charges.                                         III                                    The Conviction                                    ______________                                         -45-                                          45                      Lombard claims that the district  court committed a            number  of trial  errors  that affected  the jury's  verdict.            Considering each  claimed misstep  in turn, we  conclude that            there was no reversible error.            A.  Admissibility of Hartley's Former Testimony                ___________________________________________                      Excerpts of Hartley's prior testimony from his  own            state  murder  trial  and  from Lombard's  state  trial  were            admitted  into  evidence.   Lombard  contends  that Hartley's            former  testimony  was  inadmissible hearsay,  and  that  its            admission violated the Confrontation Clause.                      The  trial court's evidentiary rulings are reviewed            for an abuse of discretion.  See United States v. Abreu,  952                                         ___ _____________    _____            F.2d  1458,  1467  (1st Cir.),  cert.  denied,  503  U.S. 994                                            _____________            (1992).   Any  properly  preserved  error  of  constitutional            magnitude  requires reversal  unless  shown  to  be  harmless            beyond a  reasonable doubt.   See Chapman v.  California, 386                                          ___ _______     __________            U.S. 18 (1967).                      1.   Hartley's Prior Testimony  from                           _______________________________                                     Lombard's       State                                     _____________________                           Trial                           _____                      Approximately 60 pages  of Hartley's testimony from            Lombard's  state trial  were admitted,  containing statements            about Lombard's ownership of  the .22 caliber rifle; cleaning            the cabin of blood; disposal of the bodies; Lombard's sale of            firearms to a  broker; and Hartley's  and Lombard's plans  to                                         -46-                                          46            flee.   Hartley had also  testified that Lombard  told him on            the  morning of the murders that Hartley "didn't have to take            no  shit  from nobody";  that  Lombard  and Hartley  on  that            Thanksgiving morning  saw Martin  and  Lindsey (the  victims)            sleeping on  couches in the  living room of  Hartley's cabin;            and  that Lombard had, after the  murders, threatened to kill            Hartley and Theriault if  they did not "stick" to  their plan            to  tell police, if questioned,  that they had  last seen the            two victims on the Wednesday before Thanksgiving.                      Hartley's  prior  testimony  from  Lombard's  state            trial was  admitted under  the former testimony  exception to            the  hearsay  rule,  see   Fed.  R.  Evid.  804(b)(1),  which                                 ___            provides:                      The  following [is]  not excluded  by the                      hearsay   rule   if   the   declarant  is                      unavailable as a witness:                           (1)  Testimony  given  as  a  witness  at                           another  hearing   of  the   same  or   a                           different proceeding, . . . if  the party                           against   whom   the  testimony   is  now                           offered  . . .  had  an  opportunity  and                           similar motive to  develop the  testimony                           by    direct,    cross,    or    redirect                           examination.                      The other  conditions clearly being  met, the  only            question is whether Lombard had "similar motive" at his state            trial  to   "develop"  Hartley's  testimony   through  cross-            examination.                      The  party  against  whom  the prior  testimony  is            offered  must   have  had  a  similar,   not  necessarily  an                                          _______                                         -47-                                          47            identical,  motive to  develop the  adverse testimony  in the            _________            prior proceeding.   See  United States v.  Salerno, 505  U.S.                                ___  _____________     _______            317, 326  (1992) (1992) (Blackmun, J.,  concurring).  Because            Lombard faced both liability as to murder and as to  being an            accomplice  to murder under Maine law, he had a very forceful            interest at his state trial in attacking Hartley's testimony,            in order to discredit his account of the actual killings, the            concealing of evidence and the attempt to escape prosecution.            This interest  could hardly  have been  any  stronger at  the            federal trial, see  United States  v. DiNapoli,  8 F.3d  909,                           ___  _____________     ________            914-15  (2d Cir. 1993) (en  banc), and the  testimony, to the            extent it related  to the events preceding  and following the            murders, was properly admitted.                      Hartley's  prior  testimony  from  Lombard's  trial            concerning the .22 caliber rifle presents a different  set of            issues.  In contrast to the federal trial, Lombard had little            real  incentive  at  his  state  trial  to  attack  Hartley's            statements concerning possession  or ownership of  the rifle.            But Lombard himself  admitted during  the course  of his  own                                 ________            direct  examination at his  state trial that  the .22 caliber            ______            rifle belonged to him.   Furthermore, other properly admitted            evidence,  including Tammy Theriault's testimony that Lombard            owned  the rifle, strongly  corroborated Lombard's admission.            Thus, under the circumstances  presented here, we believe any                                         -48-                                          48            error arising from the admission of this portion of Hartley's            prior testimony was harmless beyond a reasonable doubt.                      Admission  of  Hartley's   former  testimony   from            Lombard's state  trial  did  not  violate  the  Confrontation            Clause.    See  U.S.  Const.  amend.  VI  ("In  all  criminal                       ___            prosecutions,  the accused shall enjoy the  right . . . to be            confronted  with the  witnesses against  him.").   The Clause            restricts  but   does  not  proscribe  the   admission  of  a            declarant's  prior testimony  against  a criminal  defendant,            requiring only  that the declarant be  "unavailable" and that            the prior  testimony sought  to be admitted  "bear[] adequate            'indicia  of reliability,'"  e.g.,  by  "fall[ing]  within  a                                         ____            firmly rooted  hearsay exception."  See Ohio  v. Roberts, 448                                                ___ ____     _______            U.S. 56, 65-66 (1980).                      The prosecution established that Hartley was indeed            "unavailable,"  and his former  testimony at  Lombard's state            trial was  within the firmly-rooted exception  to the hearsay            rule  carved out  for  prior trial  testimony  that has  been            subjected to cross-examination.  See Mattox v. United States,                                             ___ ______    _____________            156  U.S. 237 (1895)  (holding that prior  trial testimony is            admissible  upon retrial  if declarant  becomes unavailable);            see  also Roberts, 448 U.S.  at 67-73.   That testimony bears            _________ _______            "sufficient  'indicia  of  reliability'"  that  there was  no            Confrontation Clause violation.  See Roberts, 448 U.S.  at 73                                             ___ _______            (citation omitted); Barber  v. Page, 390 U.S. 719, 722 (1968)                                ______     ____                                         -49-                                          49            (dicta)  ("where  a  witness  is unavailable  and  has  given            testimony  at previous judicial  proceedings against the same            defendant  which was  subject  to cross-examination  by  that            defendant," his confrontation rights are satisfied).                      2.   Hartley's Prior Testimony  from                           _______________________________                                     His Own State Trial                                     ___________________                      Approximately two pages of Hartley's testimony from            his  own  state   murder  trial  were  admitted,   containing                 ___            Hartley's  statement that  he knew  that Lombard had  been in            prison for eight years, and a  statement by Hartley's counsel                                                                  _______            at a sidebar conference  indicating that Hartley was prepared            to testify that he  believed that Lombard "was in  prison for            burglaries, escapes, and  this sort of  thing . . . ."   This            evidence,  admitted prior  to Hartley's  change of  plea, was            relevant to  the government's  charge that Hartley  aided and            abetted unlawful firearms possession by a convicted felon.                      Although  this  former  testimony  was  admitted as            statements  by  a co-conspirator  during  the  course and  in            furtherance of the conspiracy,  a problematic ground, we find            no grounds for reversal.25                                            ____________________            25.  The co-conspirator  exception could not  have applied to            the  former  testimony,  because   the  conspiracy  had  been            terminated at least by the date that the co-conspirators were            arrested.   See United States v. Palow,  777 F.2d 52, 57 (1st                        ___ _____________    _____            Cir. 1985) ("[I]t  is beyond doubt that  the challenged post-            arrest  statements  were  not  made  in  furtherance  of  the            conspiracy."), cert.  denied, 475 U.S. 1052  (1986); see also                           _____________                         ________            Krulewitch v. United States,  336 U.S. 440 (1949) (statements            __________    _____________            made  after  objectives of  conspiracy  have  failed are  not                                         -50-                                          50                      Lombard failed properly  to preserve his  arguments            for appeal.  He posed only a general objection by a motion in                                                                       __            limine, but  made no comparable  objection at trial.26   That            ______            was  not enough.  See United States  v. Reed, 977 F.2d 14, 17                              ___ _____________     ____            (1st  Cir. 1992)  ("A  motion in  limine without  subsequent,            contemporaneous  objection  at   trial  . . .  is  ordinarily            insufficient to preserve an evidentiary ruling for appeal.").                      No prejudice resulted, in any event, from admission            of  this evidence.   See United States  v. Olano,  113 S. Ct.                                 ___ _____________     _____                                            ____________________            admissible under the co-conspirator  exception).  Also, since            Lombard  was neither  present  nor represented  at  Hartley's            state  trial  and had  no  opportunity  to cross-examine  him            there, the testimony was not admissible under Rule 804(b)(1).                Admission of the  sidebar statement by Hartley's  counsel            as to what he believed  his client was about to say  presents            difficulties as  well, for other reasons.   Cf. United States                                                        ___ _____________            v.  Harris, 914 F.2d 927, 930-31 (7th Cir. 1990).  Sometimes,                ______            an  attorney's  statements may  be  imputed  to and  admitted            against  his  client  as  a  principal under  Fed.  R.  Evid.            801(d)(2)(D).  See Harris,  914 F.2d at 931.  But  cf. United                           ___ ______                     ________ ______            States v.  Valencia,  826 F.2d  169,  172-73 (2d  Cir.  1987)            ______     ________            (acknowledging that an attorney's statements can sometimes be            used   against  client-defendant,   but  urging   caution  in            admitting  such  statements  in  criminal  context  to  avoid            infringing defendant's right against  self-incrimination, the            right to  counsel of the defendant's choice [i.e., insofar as            admission of  such a  statement might  require counsel  to be            disqualified],  and  the  right  to effective  assistance  of            counsel).   It is doubtful,  though, whether this  rule would            apply to  such an offer of  proof by counsel at  sidebar.  In            any event, even if  the rule properly applied, it  would only            make the statements admissible against Hartley, not  Lombard.            See Fed. R. Evid. 801(d)(2)(D) (statement by  a party's agent            ___            is only admissible against that party).            26.  The  defendant's only  contemporaneous objection  to the            testimony at trial  was limited to  specific language in  the            transcript  of the  earlier proceeding.   This  objection was            obviated when the  district court ordered the language  to be            redacted before the testimony was admitted.                                         -51-                                          51            1770, 1778 (1993).  Theriault's testimony, as well as that of            her mother, independently established Hartley's  knowledge of            Lombard's status  as a  convicted felon, and  Lombard himself            stipulated to having  committed prior felonies.27   Admission            of  the challenged evidence was not plain error, and there is            no basis for reversal.  See id. at 1777-78.                                    ___ ___            C.  Admission of Testimony About the Murders                ________________________________________                      The admission of  a substantial amount of  evidence            concerning the murders, Lombard  argues, was error under Fed.            R. Evid. 403, because the prejudicial impact of that evidence            outweighed its probative value.                      Lombard preserved his Rule 403 objection  only with            respect  to  the Theriault  testimony.   He  has not  met his            burden  of showing an abuse of discretion in the admission of            that testimony.   See Abreu, 952 F.2d at 1467.  A decision by                              ___ _____            the district  court on  a Rule  403 determination  must stand                                            ____________________            27.  Because Hartley's testimony from  his own previous trial            was introduced for the purpose of proving Hartley's knowledge            of  Lombard's status as a  felon, and not  for the purpose of            providing the jury with  unnecessary details about  Lombard's            stipulated prior  felonies, there  was no error  under United                                                                   ______            States v. Tavares,  21 F.3d 1,  6 (1st  Cir. 1994) (en  banc)            ______    _______            ("[W]e acknowledge that in some cases evidence concerning the            nature  of  the  prior  conviction  will  be  admissible  for            impeachment or  other reasons, despite its  lack of probative                        _________________            value  on  the  prior   conviction  element  of  the  crime."            (emphasis  added)).    In  any event,  the  Tavares  en  banc                                                        _______            decision  had not been handed  down at the  time of Lombard's            trial  (December   1993)  and   thus  does  not   affect  the            determination  of plain error.  Cf. United States v. Collins,                                            ___ _____________    _______            60 F.3d 4, 7 (1st Cir. 1995).                                         -52-                                          52            absent   a   demonstration  of   "extraordinarily  compelling            circumstances."  United  States v. Lewis, 40 F.3d  1325, 1339                             ______________    _____            (1st Cir. 1994); see also United States v. Rodriguez-Estrada,                             ________ _____________    _________________            877  F.2d  153, 156  (1st  Cir. 1989).    There  are no  such            circumstances here.                      That  Lombard posed  no Rule  403 objection  to the            admission  of Hartley's  and  even his  own former  testimony                                                    ___            about  the  murders undercuts  his  objection  to Theriault's            testimony.    Her  testimony  about  Hartley's and  Lombard's            conduct in connection with  the murders was at  least equally            relevant.     One  of  the  objectives   of  the  defendants'            conspiracy charged was to  "flee the State of Maine  in order            to avoid prosecution or the giving of testimony in connection            with the  homicides of Morris  Martin and Paul  Lindsey, Jr."            The indictment also charged  that the defendants conspired to            "dispose of  certain evidence of Henry  P. Lombard's unlawful            possession"  of a firearm.   Proof of  these charges required            proof of the events  surrounding the murders, the defendants'            knowledge of  the murders, and the  defendants' joint conduct            following the murders.                      The district  court recognized that  it was neither            possible  nor  appropriate  to  excise all  evidence  of  the            murders  from  the  government's  proof  of  the  defendants'            conspiracy.  It correctly observed that the evidence touching            on the  murders had  some prejudicial effect,  but explicitly                                 ____                                         -53-                                          53            weighed that effect against  its probative value, and decided            in favor of  admitting much,  but not all,  of the  testimony            offered.      There   are  no   "extraordinarily   compelling            circumstances"  that  would warrant  disturbing  the district            court's balancing  of prejudice against probative value here.            See Rivera-Gomez, 67 F.3d at 996-98.            ___ ____________                      The  convictions  are affirmed.    The  sentence on                      ___________________________________________________            Count  2  of  the indictment  is  vacated,  and  the case  is            _____________________________________________________________            remanded for resentencing consistent with this opinion.            _______________________________________________________                                         -54-                                          54
