
USCA1 Opinion

	




          July 12, 1996     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 94-2226                                    UNITED STATES,                                      Appellee,                                          v.                                  JAMES L. MITCHELL,                                Defendant - Appellant.                                     ____________                                     ERRATA SHEET               The opinion of this Court issued on June 5, 1996, is amended          as follows:               Page 6, paragraph 1, is amended to read:                         Traditionally,  in  the  context   of  a                    motion  to  suppress,  we  have  reviewed the                    district court's findings of fact, as well as                    any mixed findings of law and fact, for clear                    error.  See United States v. Schiavo, 29 F.3d                            ___ _____________    _______                    6,  8  (1st  Cir.  1994);  United  States  v.                                               ______________                    Rodr guez-Morales,  929  F.2d  780, 783  (1st                    _________________                    Cir.  1991),  cert.  denied,  502  U.S.  1030                                  _____________                    (1992).    A   recent  Supreme  Court   case,                    however, determines that "as a general matter                    determinations  of  reasonable suspicion  and                    probable cause should be reviewed  de novo on                                                       _______                    appeal."    Ornelas  v.  United  States,  116                                _______      ______________                    S. Ct.   1657,   1663  (1996)   (noting  that                    findings of historical fact are reviewed only                    for clear error and that "due weight"  should                    be  given  "to  inferences  drawn  from those                    facts   by  resident  judges  and  local  law                    enforcement  officers").   Therefore,  to the                    extent  that  our  analysis  turns  on making                    those  determinations, our review is de novo,                                                         _______                    as  is  our  review  of  the  district  court                    findings of  law.   See  Mart nez-Molina,  64                                        ___  _______________                    F.3d at 726.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2226                                    UNITED STATES,                                      Appellee,                                          v.                                  JAMES L. MITCHELL,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                   [Hon. Lawrence P. Cohen, U.S. Magistrate Judge]                                            _____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Walter B. Prince,  by Appointment  of the  Court, with  whom               ________________          Peckham, Lobel, Casey, Prince & Tye was on brief for appellant.          ___________________________________               Kevin   J.  Cloherty,  Assistant   United  States  Attorney,               ____________________          Donald K. Stern,  United States  Attorney, and Sheila  W. Sawyer,          _______________                                _________________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                     June 5, 1996                                 ____________________                    TORRUELLA, Chief  Judge.   The defendant in  this arson                    TORRUELLA, Chief  Judge.                               ____________          case stands convicted by  a jury of conspiracy and arson under 18          U.S.C.    371 and  844(i), respectively.  For the  reasons stated          herein,  we  affirm the  decision of  the  district court  on all          points.                                    I.  BACKGROUND                                    I.  BACKGROUND                    On the evening  of February  6, 1989,  the Boston  Fire          Department responded to a multiple-alarm fire at 295-297 Franklin          Street  (the "Building"),  in  Boston, which  was  owned by  Jack          Gateman  ("Gateman").   At  that  time, the  defendant,  James L.          Mitchell ("Mitchell"),  was  a tenant  occupying  the  Building's          second,  third and fourth floors, where he and his partner, Allen          Gallant ("Gallant"),  ran a  private social  club known as  "Club          297" (the  "Club").  The Club had been ordered closed by the City          of Boston  for violation of City  codes in January 1989.   On the          day  of   the  fire,   several  men,  including   Ronald  Wallace          ("Wallace"),  had been working on  repairs at the  Club.  Wallace          testified  at trial that during  the course of  that day Mitchell          told him  he would pay him  $11,000 to set fire  to the Building,          making  an initial  payment.   Mitchell returned  to his  home in          Vermont, while Wallace returned to the Club.  Mitchell called the          Club  from his car telephone, and spoke to Wallace, who testified          that Mitchell asked him whether he would set the fire.  After the          phone call, Wallace went  to the fourth floor of the Building and          set some mattresses stacked there on fire.  He and  the other men          in the Club fled the Building.                                         -2-                    Over the  next months,  Mitchell wired Wallace  sums of          money through Western  Union.  Evidence was  entered that Gallant          reported  the loss the  Club suffered in  the fire  to the Club's          insurance  broker, and  pursued  the claim  through an  insurance          broker.   Testimony at  trial established  that some  $59,400 was          paid  out on  the  Club's policies,  most  of which  went to  the          Internal Revenue Service.                    In November 1991, Mitchell  was charged under a twenty-          two  count indictment  with  conspiracy, arson,  use  of fire  to          commit a felony,  and wire fraud.   He was  prosecuted on six  of          those  counts.  After  a jury trial,  he was found  guilty on the          conspiracy  and arson  charges,  but acquitted  of the  remaining          counts.  This appeal ensued.                          II.  ADMISSION OF SEIZED EVIDENCE                          II.  ADMISSION OF SEIZED EVIDENCE                    The   district    court   adopted   the    report   and          recommendation of  the magistrate judge, who  found the following          facts.   See United States  v. Mart nez-Molina, 64  F.3d 719, 723                   ___ _____________     _______________          (1st  Cir. 1995) ("We recite  the facts adduced  at a suppression          hearing  in  the light  most  favorable to  the  district court's          ruling to the extent that they derive support from the record and          are  not clearly  erroneous.").    On  the  night  of  the  fire,          Lieutenant   Paul  R.   LeBlanc  ("Lt. LeBlanc")   of  the   Fire          Investigation Unit reported  to the scene of the  fire.  After it          was "put  down," within an  hour or so  of being reported  to the          Fire Department at 9:15  p.m., Lt. LeBlanc entered  the premises,          along  with two associates, in  order to determine  the cause and                                         -3-          origin  of the fire.   He seized  carpet samples and  sections of          stair rises, later  entered in evidence at  trial. Irregular burn          patterns   prompted  him  to  suspect  that   the  fire  was  not          accidental, and that it originated on the fourth floor.  Adequate          photographs could not be taken, however, since there was no light          and the  water on the floor precluded reliable flash photography.          The following morning, between 8:00 and 9:00 a.m., Lieutenant Roy          Burrill ("Lt. Burrill"), also of the Fire Investigation Unit, was          sent to  the site without a  warrant.  He seized  two sections of          flooring from the  fourth floor.  A third search was conducted by          First Security Company, a  private investigation company hired by          Gateman  to determine the  cause of the  fire.  They  also seized          samples from the fourth floor.                    On  appeal,  Mitchell  challenges  the   trial  court's          admission of the  evidence seized  by Lt. Burrill,  on the  basis          that there were no  exigent circumstances justifying his entrance          without a warrant.1                                        ____________________          1   Although he does not clearly state that his appeal is limited          to the  evidence admitted  from Lt. Burrill's  search, Mitchell's          argument does not address the other two searches, and so we limit          our analysis to  Lt. Burrill's search  and seizure.   We note  in          passing,  however, that even if Mitchell has not waived the right          to  object  to  the admission  of  the  evidence  from the  other          searches, see infra,  the district court undoubtedly did  not err                    ___ _____          in admitting that  evidence, for the  very reasons pronounced  by          the  magistrate   judge.     First,  Lt.  LeBlanc's   search  was          constitutional under the rationale of Michigan v. Tyler, 436 U.S.                                                ________    _____          499,  510 (1978)  ("Officials  need no  warrant  to remain  in  a          building  for a  reasonable time  to investigate  the cause  of a          blaze after it has been  extinguished.").  Second, First Security          Company's search was a purely private search and seizure that did          not involve official action; as such, it does not come  under the          Fourth Amendment, which does not proscribe unreasonable  searches          and  seizures by private persons.  See United States v. Jacobsen,                                             ___ _____________    ________                                         -4-                    A.  Waiver                    A.  Waiver                        ______                    The United States claims that Mitchell waived the right          to appeal the  admission of  this evidence by  failing to  object          within   ten  days   to   the  magistrate   judge's  report   and          recommendation on the defendant's Motion to Suppress the Physical          Evidence.   See Rule 3(b), Rules for United States Magistrates in                      ___          the   United  States   District   Court  for   the  District   of          Massachusetts.     As  the  report  and   recommendation  of  the          magistrate judge itself pointed out, we have repeatedly indicated          that  failure to comply with  Rule 3(b) precludes  review by this          court.   See, e.g., United States v. Valencia-Copete, 792 F.2d 4,                   ___  ____  _____________    _______________          6 (1st Cir. 1986); United States  v. Vega, 678 F.2d 376, 379 (1st                             _____________     ____          Cir.  1982) ("There can be  no appeal from  a magistrate's report          and recommendation unless objections are filed thereto.").                    Mitchell  now  maintains  that  his  objection  to  the          evidence seized by Lt. Burrill has been saved from waiver despite          his failure  to  object because,  subsequent  to the  report  and          recommendation,  the district  court issued  an order  stating it          would reconsider  the suppression  issue as regards  the evidence          seized  by  Lt.  Burrill.   In  that  order,  the district  court          requested,  among   other  things,  that  Mitchell  identify  the          portions  of memoranda and evidence  the court should consider in          deciding the motion to suppress the evidence seized.  All of  the          seized evidence offered was admitted at trial.  We need not delve          into  the  intricacies  of   whether  the  district  court  order                                        ____________________          466 U.S. 109, 113 (1984).                                         -5-          effectively revived  Mitchell's motion  to suppress  the evidence          seized  by Lt.  Burrill, however,  as we  find that  the district          court did not err in admitting the disputed evidence.                                         -6-                    B.  Analysis of Search and Seizure Issues                    B.  Analysis of Search and Seizure Issues                        _____________________________________                    Traditionally, in the context  of a motion to suppress,          we have reviewed the  district court's findings of fact,  as well          as  any mixed  findings of law  and fact,  for clear  error.  See                                                                        ___          United States  v. Schiavo, 29 F.3d  6, 8 (1st Cir.  1994); United          _____________     _______                                  ______          States v. Rodr guez-Morales, 929  F.2d 780, 783 (1st Cir.  1991),          ______    _________________          cert. denied, 502 U.S. 1030 (1992).  A recent Supreme Court case,          ____________          however, determines  that "as a general  matter determinations of          reasonable  suspicion and  probable cause  should be  reviewed de                                                                         __          novo on appeal."  Ornelas v. United States, 116 S. Ct. 1657, 1663          ____              _______    _____________          (1996) (noting that findings of historical fact are reviewed only          for  clear  error  and that  "due  weight"  should  be given  "to          inferences drawn from  those facts by  resident judges and  local          law  enforcement officers").   Therefore, to the  extent that our          analysis turns on making  those determinations, our review is  de                                                                         __          novo, as  is our review  of the  district court findings  of law.          ____          See Mart nez-Molina, 64 F.3d at 726.          ___ _______________                    Our analysis is framed  by two Supreme Court decisions:          Michigan v. Tyler, 436 U.S. 499 (1978), and Michigan v. Clifford,          ________    _____                           ________    ________          464 U.S. 287  (1984).   The basic Fourth  Amendment framework  is          clear.     "Courts  have  consistently  followed  'one  governing          principle' in  interpreting [the  Fourth Amendment]:   'except in          certain carefully defined classes of  cases, a search of  private          property without  proper consent is 'unreasonable'  unless it has          been  authorized by a  valid search warrant.'"    Mann v. Cannon,                                                            ____    ______          731  F.2d 54,  58 (1st  Cir. 1984)  (quoting Camara  v. Municipal                                                       ______     _________                                         -7-          Court, 387 U.S. 523, 528-29 (1967)).  Nonetheless, "a warrantless          _____          entry by  criminal law  enforcement officials  may be  legal when          there  is  compelling need  for official  action  and no  time to          secure  a warrant."   Tyler,  436 U.S. at  509.   Mitchell's core                                _____          contention here is that there were no  such exigent circumstances          in  the present case, and so Lt. Burrill's warrantless search was          unconstitutional,  and the  evidence he  seized should  have been          suppressed.                    The  analysis   in  Michigan  v.  Tyler   controls  our                                        ________      _____          decision.   In  Tyler, a  fire  broke out  in  a furniture  store                          _____          shortly before midnight; the fire had been reduced to "smoldering          embers" when the Fire  Chief reported to  the scene at 2:00  a.m.          Id.  at 501.  He concluded that  the fire was possibly the result          ___          of  arson,  and  called  a   police  detective,  who  took   some          photographs, but  "abandoned his efforts because of the smoke and          steam."   Id. at 502.  After  a brief survey through  the rest of                    ___          the building  to look for  further evidence of  the cause  of the          fire, the Chief and police  detective left the site.   Four hours          later, the Chief returned with the Assistant Chief, whose task it          was to  determine the origin of  all fires in the  township.  The          fire was  out, and  the building was  empty.  They  quickly left,          returning  with the police detective around 9:00 a.m.  They found          suspicious burn marks, not visible  earlier, and took samples  of          carpet and stairs.                    Rejecting  the premise that  "the exigency justifying a          warrantless  entry to fight  a fire ends,  and the need  to get a                                         -8-          warrant begins, with the dousing of the last flame," id. at  510,                                                               ___          the Court found the  two searches conducted on the  morning after          the fire were constitutionally permitted.  After noting  that the          investigation  on the  night  of the  fire  was hindered  by  the          darkness as well as the steam and smoke, the Court found that the          fire officials                      departed at 4  a.m. and returned  shortly                      after   daylight    to   continue   their                      investigation.  Little purpose would have                      been  served  by their  remaining  in the                      building,  except  to  remove  any  doubt                      about  the  legality  of the  warrantless                      search  and  seizure   later  that   same                      morning.  Under  these circumstances,  we                      find that  the  morning entries  were  no                      more than an  actual continuation of  the                      first . . . .          Id. at 511.          ___                    The  facts  here  closely  parallel   those  of  Tyler.                                                                     _____          Lt. LeBlanc  entered the scene after the fire was "put down," and          within  roughly an  hour of  the time  the fire was  reported, in          order  to  determine the  cause  and  origin of  the  fire.   The          investigation  was hampered  by  the lack  of  light and  by  the          presence of water on  the floor:  photographs could not be taken.          The following morning, between 8:00 and 9:00 a.m., roughly twelve          hours after the fire  had been reported, Lt. Burrill  entered the          scene in order to take additional  samples.  He removed the water          and debris from the fourth floor, and then seized two sections of          flooring,  the  challenged  evidence.    These  facts  speak  for          themselves:    Lt. Burrill's search  and  seizure  was clearly  a          continuation  of  the first  search by  Lt.  LeBlanc.   Unlike in          Tyler, of  course,  the  same individual  did  not  conduct  both          _____                                         -9-          searches,  but  both  fire  officials  were  of  the  same   Fire          Investigation Unit.  Ultimately,  as in Tyler, the "investigation                                                  _____          of the fire's origin  was [] temporarily suspended on  account of          the  conditions on the scene and resumed at the first opportunity          when  the  conditions  hampering  the   investigation  subsided."          Clifford, 464 U.S. at 301.          ________                    That Lt. Burrill's morning  entrance onto the  premises          was in fact a continuation of the nighttime search is underscored          by  the  distinctions the  Court  drew  between its  decision  in          Clifford and its Tyler holding.  In Clifford, a fire broke out in          ________         _____              ________          a private residence and the fire department reported to the scene          at about 5:42 in the morning.  The fire was extinguished, and the          fire officials  and police  left the  premises at  7:04 a.m.   At          about 1:00 p.m. that afternoon a fire investigator arrived at the          scene, having  been informed  that the fire  department suspected          arson.   Despite the fact that the  house was being boarded up on          behalf  of the  out-of-town  owners, the  Cliffords, and  despite          their  knowledge that the Cliffords  did not plan  to return that          day, the fire  investigator and his  partner searched the  house.          After determining that the fire had been set in the basement, and          how,  the  investigators  searched   the  entire  house,   taking          photographs.   Id.  at 289-91.   In  finding that  the challenged                         ___          search  by the  fire investigator  was not  a continuation  of an          earlier search,  as in Tyler,  and in distinguishing  between the                                 _____          two cases, the Court noted:                      Between  the  time  the firefighters  had                      extinguished the blaze and left the scene                                         -10-                      and the arson investigators first arrived                      about   1:00   p.m.   to    begin   their                      investigation,  the  Cliffords had  taken                      steps  to  secure  the privacy  interests                      that remained in their  residence against                      further   intrusion.      These   efforts                      separate the entry made to extinguish the                      blaze  by that  made  later by  different                      officers   to  investigate   its  origin.                      Second,  the  privacy  interests  in  the                      residence   --  particularly   after  the                      Cliffords had acted -- were significantly                      greater  than  those in  the fire-damaged                      furniture  store  [in Tyler],  making the                                            _____                      delay  between the  fire and  the mid-day                      search  unreasonable  absent  a  warrant,                      consent, or exigent circumstances.          Id.  at  296.   These  facts play  no role  here:   there  was no          ___          evidence  of an effort to secure the burned-out premises, and the          heightened privacy interests a  property owner has in a  home are          not present.  See  id. at 297 (noting that "privacy interests are                        ___  ___          especially strong in a private residence.").   Unlike the private          dwelling in Clifford, this  was a commercial property.   Mitchell                      ________          points out that he was in Vermont  at the time of the fire in the          premises he had leased; however, he made no effort to arrange for          the premises to be closed off, unlike the defendants in Clifford,                                                                  ________          who were similarly away  from their home.  These  facts permitted          the magistrate judge to  conclude that the search by  Lt. Burrill          was merely  a continuation of  Lt. LeBlanc's  search, and,  thus,          that "there was simply  nothing unreasonable, in Fourth Amendment          terms,  to  [sic]  reentering  the building  and  completing  the          already commenced  investigation of the  cause and origin  of the          fire when  circumstances --  i.e., adequate lighting  provided by          daylight  and removal of the debris and water -- first reasonably                                         -11-          permitted."  (Report and Recommendation, page 11).                    In  Clifford  the  Court  laid out  three  factors  for                        ________          analyzing the constitutionality of warrantless  searches of fire-          damaged premises:                      whether  there   are  legitimate  privacy                      interests  in  the fire-damaged  property                      that   are   protected   by  the   Fourth                      Amendment; whether  exigent circumstances                      justify    the    government    intrusion                      regardless of  any reasonable expectation                      of  privacy; and,  whether the  object of                      the search  is to determine  the cause of                      the  fire   or  to  gather   evidence  of                      criminal activity.          Clifford, 464 U.S. at 291; see  Mann, 731 F.2d at 59-60 (weighing          ________                   ___  ____          the Clifford factors in evaluating warrantless entry onto private              ________          premises  for  health and  safety  reasons).    First, as  noted,          Mitchell  can have  had few  privacy interests  in the  Building.          "Privacy expectations will  vary with the  type of property,  the          amount  of  fire  damage, the  prior  and  continued  use of  the          premises,  and in  some cases  the owner's  efforts to  secure it          against intruders."   Clifford, 464  U.S. at 292;  see Mann,  731                                ________                     ___ ____          F.2d  at  59 (noting  that  privacy  considerations in  virtually          abandoned residence used as storehouse were minimal).                    Mitchell  focuses  his argument  on the  second factor,          exigent  circumstances.   As he  notes, at  the time  Lt. Burrill          entered the  grounds, the fire  was out, there were  no people in          the building,  and there was no  danger of further  damage, or of          flammable  materials  being  present.   However,  the  Court  has          clearly established that "officials need no warrant to  remain in          a building for  a reasonable time to  investigate the cause  of a                                         -12-          blaze after it  has been extinguished."  Tyler,  436 U.S. at 510;                                                   _____          see Clifford, 464 U.S. at 293 (noting that "[b]ecause determining          ___ ________          the  cause  and  origin of  a  fire  serves  a compelling  public          interest,  the  warrant  requirement   does  not  apply  in  such          cases.").  Because the magistrate  judge properly found that  Lt.          Burrill's entrance onto the  premises was in fact a  continuation          of Lt.  LeBlanc's search,  and there  is no question  as to  that          search's  constitutionality,   Mitchell's  exigent  circumstances          argument  fails.  Indeed, this is precisely the level of exigency          --  the  fire  was  extinguished,  the  building  was  empty, and          conditions had hampered investigations  the night before -- whose          constitutionality the Supreme Court upheld in Tyler.                                                        _____                    The third  Clifford factor examines the  purpose of the                               ________          search.  Here, the district court adopted  the magistrate judge's          finding  that Lt. LeBlanc entered the site to determine the cause          and origin of  the fire, and that Lt. Burrill  "was dispatched to          the scene for  the purpose  of taking additional  samples."   The          lower court concluded  that there  was no showing  that the  fire          department suspected arson when Lt. Burrill was sent to the scene          of  the  fire.    Indeed,  Lt.  LeBlanc  was  only  one of  three          investigators on  the scene, and  no evidence was  presented that          the  other investigators shared his  opinions, much less that any          of them communicated their impressions to Lt. Burrill.                    In his brief, however, Mitchell seems to challenge that                                         -13-          finding, stating that Lt.  Burrill2 "entered the premises without          a  warrant specifically to look for and seize evidence of arson."          (Brief of  Appellant, p. 14).   Mitchell's  counsel contended  at          oral  argument  that  the  magistrate judge's  finding  that  Lt.          Burrill  did not suspect  arson was  improbable, and  that common          sense should indicate that  Lt. LeBlanc communicated his findings          to Lt. Burrill.  We disagree.  Lt. Burrill testified that as soon          as  he  started his  shift he  was sent  to  the scene,  and that          "[f]requently after a fire  has occurred at night, they  send the          day crew to the scene .  . . because of the benefit of  daylight,          it [is] easier to get samples." (Day 1, p. 96).  Lt. LeBlanc,  in          turn, testified that the Fire Investigation Unit reported  to the          fire  because it was a  multiple-alarm fire, to  which the Unit's          response  is  automatic.    Based  on  this   testimony  and  our          deferential standard of review, we see no reason to find that the          court erred in its finding of fact.                    Based  on the  above,  we affirm  the district  court's          refusal to suppress the evidence from Lt. Burrill's search.                      III.  ADMISSION OF THE TAPED CONVERSATIONS                      III.  ADMISSION OF THE TAPED CONVERSATIONS                    Prior to  and after the fire,  Mitchell tape-recorded a          series  of  telephone conversations  he  had  with other  people,          including  Wallace   and  Gallant,   without  their   consent  or          knowledge.   Excerpted  portions of  three  of these  tapes  were                                        ____________________          2  In  fact, defendant's  brief refers to  nameless "Boston  Fire          Department  Inspectors"  who  entered  the building  on  the  day          following the fire.  As Lt. Burrill is the only  official fitting          that description  who seized  evidence at issue  here, we  assume          that defendant was describing him.                                         -14-          admitted  at trial.  On appeal, Mitchell argues that the district          court  committed reversible  error  in limiting  the  use of  the          tapes,  for  two  reasons.    First,  he  maintains,   the  taped          conversations  were  admissible  to  show  bias and  inconsistent          testimony.   Second,  he contends  that all  the tapes,  not just          fragments of  them, were admissible for  purposes of impeachment.          As he does not specify, in either his brief or  at oral argument,          which tapes he actually  seeks to enter, why each  portion should          be played, or the  purpose for which each excerpt  not previously          admitted  should now be allowed, we limit our discussion to those          tapes actually entered at trial.3                                        ____________________          3   Mitchell's counsel stated that there were twenty-one tapes in          all, with roughly twenty-eight hours  of recordings.  Three tapes          were  actually  entered  at  trial,  but  two  other  tapes  were          discussed.   First,  defense   counsel  offered   a  tape   of  a          conversation  between Mitchell  and David  Collins, an  insurance          broker,  in his  cross-examination  of Collins  during voir  dire          outside the jury's presence, in order to refresh his recollection          and  knowledge.  At the  prosecution objection to  the tape being          played,  and after some discussion, the court excused the witness          for the day so that the prosection could hear the tape.  The next          day,  the  following  colloquy  ensued  (Mr.  Prince  is  defense          counsel; Mr. Cloherty is the prosecutor):                         THE COURT:  .  . . . Now, with  regard                      to  the  Collins'  [sic] telephone  call,                      have you heard that tape?                         MR. CLOHERTY:  Yes, Your Honor.                         MR. PRINCE:    We have  resolved  that                      issue, Your Honor.                         MR. CLOHERTY:   Mr. Prince isn't going                      to play it.  That's withdrawn.                         THE COURT:  All right.          (Day 9, p. 12).  Since the tape was withdrawn, we do not consider          it here.  Similarly, there was some discussion of a tape recorded          on February 8, 1989, but defense counsel ultimately stated to the          court  that he would not be offering anything from that tape, and          so we do not address it here.                                           -15-                    A.  The Legal Framework                    A.  The Legal Framework                        ___________________                    A party waives  a right when it  makes an "'intentional          relinquishment  or abandonment'" of it.   United States v. Olano,                                                    _____________    _____          507 U.S. 725,  733 (1993)  (quoting Johnson v.  Zerbst, 304  U.S.                                              _______     ______          458, 464 (1938));  see United States v. Marder, 48  F.3d 564, 571                             ___ _____________    ______          (1st Cir.), cert. denied, 115 S.  Ct. 1441 (1995).  However, if a                      ____________          defendant  merely fails to make a timely assertion of that right,          only forfeiture  results.  Olano,  507 U.S.  at 733; see  Fed. R.                                     _____                     ___          Crim. P. 52(b).  The distinction is a key one, for                      [m]ere forfeiture, as opposed  to waiver,                      does not extinguish an "error" under Rule                      52(b).  .  .  .   If  a  legal  rule  was                      violated   during   the  District   Court                      proceedings, and if the defendant did not                      waive the  rule, then  there has  been an                      "error"  within the meaning of Rule 52(b)                      despite   the   absence   of   a   timely                      objection.          Id. at 773-74.  In short,  where there was forfeiture, we apply a          ___          plain error  analysis; where there  was waiver,  we do not.   See                                                                        ___          United  States  v. Lakich,  23 F.3d  1203,  1207 (7th  Cir. 1994)          ______________     ______          (noting  that  the "'Plain  Error Rule'  may  only be  invoked in          instances of 'forfeited-but-reversible error,' . . . . because if          there has  been a valid  waiver, there  is no 'error'  for us  to          correct."); see,  e.g., United States  v. de la  Cruz-Paulino, 61                      ___ ______  _____________     ___________________          F.3d 986, 995 (1st  Cir. 1995) (holding that where  defendant did          not object to prosecution's use of taped conversations, the issue          was not  preserved for appeal, but plain error analysis applied);          Marder,  48 F.3d  at  571 (holding  that,  because there  was  no          ______          waiver,  plain error  analysis applied).   See  generally, United                                                     ______________  ______                                         -16-          States  v. Taylor, 54 F.3d  967, 972-73 (1st  Cir. 1995) (stating          ______     ______          the policy reasons and rationale for the raise-or-waive rule).4                    B.  The Tapes                    B.  The Tapes                        _________                      1.  The February 7, 1989 Tape                      1.  The February 7, 1989 Tape                    Mitchell recorded two conversations between himself and          Wallace  on February 7, 1989.  Defendant sought to enter portions          from  that tape as evidence of prior inconsistent statements.  At          a hearing on the admissibility of  the tape outside of the jury's          presence,  the  following  colloquy  ensued (Mr.  Prince  is  the          defense counsel, Mr. Cloherty the prosecutor).                         THE COURT: . .  . . Mr. Cloherty, what                      is the Government's  position on  playing                      all  of  the  February  7  tape  with the                      exception of the two edits we discussed?                         MR.  CLOHERTY:    We  would  want  the                      entire tape played  with the exception of                      those edits.                         THE COURT:  And that remains agreeable                      to the defendant?                         MR.  PRINCE:    Yes,  Your  Honor, and                      Mr. Cloherty   and   I   will  edit   the                      conversation.          (Day 5, pp. 112-13).   At the start of the next day of trial, the          court asked the attorneys  whether the tapes had been  "edited to          [their] mutual satisfaction"; Mitchell's counsel did not disagree          when  the prosecution stated that they had.   (Day 6, p. 5).  Nor                                        ____________________          4  In United States v. Taylor, we stated that the "raise-or-waive                _____________    ______          rule is not absolute.  But, rescue missions are restricted to the          correction  of 'plain' errors,"  54 F.3d at  972, without delving          into the difference between forfeiture and waiver.  We  therefore          note that the  distinction we  draw today between  them does  not          conflict with Taylor,  in that Taylor was  concerned with failure                        ______           ______          to  timely object  --  i.e., forfeiture.    Id. (noting  that  "a                                                      ___          litigant who deems himself aggrieved . . . ordinarily must object          then and  there, or  forfeit any  right  to complain  at a  later          time.").                                          -17-          did he object when the tapes were offered.                    Clearly,  Mitchell  has  waived any  objection  to  the          court's failure  to play the  entire tape.   Not only did  he not          object to the use  of the tape, but he  affirmatively stated that          he was agreeable  to the use of  the edited tape  -- there was  a          "direct inquiry  from the court" and an "unequivocal assent" from          counsel for  the defense.  Marder,  48 F.3d at  571 (holding that                                     ______          defendant  did  not waive  issue where  there  was no  such clear          colloquy,  but merely a failure  to object).   That action raises          his later silence from mere forfeiture to waiver.                      2.  The February 1, 1989 Tape                      2.  The February 1, 1989 Tape                    Mitchell  next  sought  to  introduce  excerpts  from a          conversation  taped between  Mitchell  and Gallant  prior to  the          fire.   He offered  the dialogue, which  discussed re-opening the          Club, as evidence of  his then-existing state of mind.   See Fed.                                                                   ___          R. Evid. 803(3).  The court stated that the entire tape could not          be  played, on  the  basis that  most  of it  was irrelevant  and          inadmissible.   However,  the  next day,  based  on a  transcript          indicating what  excerpts the defendant wanted to  use, and which          of those the government  objected to, the court admitted  all the          excerpts  Mitchell requested.   Mitchell  now appears  to contend          that the entire tape should have been admitted.                    Had Mitchell merely submitted  the entire tape, and the          court  only admitted  excerpts, the  defense's failure  to object          that the remainder of the tape was not submitted to  the jury may          only  have resulted  in forfeiture,  Olano, 507  U.S. at  733, as                                               _____                                         -18-          there   may  have   been  no   "'intentional  relinquishment   or          abandonment  of a known right,'" and so  no waiver.  Id. (quoting                                                               ___          Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).   But the defense's          _______    ______          actions  went beyond  this:   Mitchell  took  an active  role  in          limiting  the  portions  considered  by  the  district  court  by          providing the  excerpts himself.  Ultimately,  the court admitted          all the  excerpts he submitted.  This, paired with his failure to          object, raises his acts to  the level of waiver.  See  Marder, 48                                                            ___  ______          F.3d at 570-71.  Indeed, Mitchell does not offer any  argument as          to why we  should not deem the  portions not actually  offered as          waived.  We will not  look beyond the waiver and ask  whether the          court committed plain error.                      3.  The February 11, 1989 Tape                      3.  The February 11, 1989 Tape                    The  third tape discussed  at trial was  a February 11,          1989,  recording  of  Mitchell's conversation  with  his  partner          Gallant about whether  the Club had insurance at the  time of the          fire.   At  a  hearing  on  the  tape's  admissibility  prior  to          Gallant's  testimony, the  court  characterized it  as "a  really          transparent effort  by the defendant, Mr.  Mitchell, knowing that          he was accused  of setting the arsons [sic],  . . . [to  say] all          sorts of things that  would be very inadmissible and  also things          of  doubtful admissibility  on  the  stand."    (Day  9,  p.  7).          Accordingly,  the court ruled  that the tape  was inadmissible to          prove   state  of  mind  under  Fed.  R.  Evid.  803(3),  as  the          conversation occurred after  the fire.   The defense objected  on          the basis that the  tape was in fact relevant  to the defendant's                                         -19-          state of mind  regarding the  alleged wire fraud,  and the  court          reconsidered its  ruling.  Accordingly, it  requested a marked-up          transcript  of the  portions of  the tape  the defense  sought to          admit on that basis, so it could "see what is at issue."  (Day 9,          p. 141).                    The next day, the court held that the first  of the two          marked pages defendant submitted  could be admitted; it  was read          to the jury later that day,  without a limiting instruction.  The          court also allowed the  second submitted page to be  entered, but          as  a   prior  inconsistent   statement,  and  gave   a  limiting          instruction to the jury.   Defense counsel did not object  to the          court's  rulings.  For the  same reasons discussed  above, as the          only portions of the  tape the defense actually submitted  to the          court were entered, and  there was no objection entered,  we find          that the defense waived any appeal that the remainder of the tape          should have been admitted.  See id.                                       ___ ___                    As we find that  the defendant has waived the  right to          argue that these three  tapes should have been admitted  in their          totality,  we need  not consider his  contentions that  they were          admissible  to  show  bias  and  inconsistent  testimony  or  for          purposes of impeachment.                              IV.  THE JURY INSTRUCTIONS                              IV.  THE JURY INSTRUCTIONS                    Mitchell   challenges   the   district   court's   jury          instructions  regarding the  conspiracy  charge.   We review  the          propriety of jury instructions  for abuse of discretion.   United                                                                     ______          States v. Cassiere,  4 F.3d  1006, 1022 (1st  Cir. 1993);  United          ______    ________                                         ______                                         -20-          States v. Campusano, 947 F.2d 1, 5 (1st Cir. 1991).  Accordingly,          ______    _________          "[w]e must look at  the instructions in light of the evidence and          determine whether they 'fairly and adequately submit[] the issues          in the case to the jury.'"  United States v. Picciandra, 788 F.2d                                      _____________    __________          39, 46 (1st Cir.)  (quoting United States v. Fishbach  and Moore,                                      _____________    ____________________          Inc., 750 F.2d 1183, 1195 (3d Cir. 1984), cert.  denied, 470 U.S.          ____                                      _____________          1029 and  sub nom. Sargent Elec.  Co. v. United  States, 470 U.S.                    ________ __________________    ______________          1085)),  cert.  denied, 479  U.S. 847  (1986).   For  the reasons                   _____________          stated  below, we  find  the district  court  did not  abuse  its          discretion in making its instructions to the jury.                    Count  I  of  the  indictment  alleged   that  Mitchell          conspired  with Wallace  to  violate the  arson  statute, see  18                                                                    ___          U.S.C.    844(i), and  the wire  fraud statute,  see 18 U.S.C.                                                              ___          1343.5   The charge  was made in  the conjunctive.   The district          court, however, instructed the jury in the disjunctive:                         The first count  charges a  conspiracy                      to  commit  arson  and  a  conspiracy  to                      commit wire fraud.                         In  order to  prove  the defendant  is                      guilty of Count 1, the government doesn't                      have  to  prove  that   any  demonstrated                      conspiracy had  both laws or  a violation                      of both laws as its object.                         It's  sufficient  that the  government                      prove  either  the  conspiracy to  commit                      arson  or the  conspiracy to  commit wire                      fraud.                         But  you  have  to unanimously  agree.                      That is essential.   When you deliberate,                                        ____________________          5   The remaining five  counts charged Mitchell  with arson, wire          fraud, and  use of  a fire  to commit  a felony.   See  18 U.S.C.                                                             ___             844(i), 1343, & 844(h).                                         -21-                      all   12  of   you  have   to  agree   on                      everything.  So  it would be insufficient                      if  six  of  you   thought  there  was  a                      conspiracy to commit arson and six of you                      thought there was  a conspiracy to commit                      wire  fraud.    You  have  to unanimously                      agree, or try to.                         But  if you  agree unanimously  that a                      conspiracy  to  violate   one  of   those                      statutes   has   been  proven   beyond  a                      reasonable  doubt,  that's sufficient  to                      find the defendant guilty on Count 1.          (Day  12,  pp. 159-60).6    Mitchell  contends  that the  court's          instruction  that   finding  him  guilty   of  one  of   the  two          conspiracies   is   sufficient   impermissibly    broadened   the          allegations in Count I so as to create, in effect, two conspiracy          counts.7                    In answering defendant's argument we take our lead from          the  Supreme Court.   In Griffin  v. United  States, 502  U.S. 46                                   _______     ______________          (1991), the petitioner was  charged with a conspiracy alleged  to          have  two objects, but was implicated in  only one of those.  The          court instructed the jury  that it could return a  guilty verdict          against  petitioner if  it  found that  she  had participated  in          either  of the  two  objects, and  the  jury returned  a  general          verdict of guilty,  without specifying on which  count it relied.          Id. at 47-48.  Faced with the question whether the verdict should          ___                                        ____________________          6  Mitchell specifically objected to the instruction at the close          of the charge.          7  In making this argument,  Mitchell adds that the jury was left          to speculate  as to  whether Mitchell  conspired to  commit arson          with Wallace, to  commit wire  fraud with  Wallace, and  possibly          Gallant, or  to commit both  charges involving Gallant.   Neither          the  indictment  nor  the  jury  instructions  mention   Gallant,          however.                                         -22-          be set aside because the evidence was insufficient for one of the          objects, the Court affirmed  the verdict.  In so doing, it relied          on a  common law rule  dating back  to pre-revolutionary  England          stating  that  "'[w]hen a  jury returns  a  guilty verdict  on an          indictment  charging several acts in  the conjunctive, .  . . the          verdict  stands if the evidence is sufficient with respect to any          one  of the  acts charged.'"   Id.  at  56-57 (quoting  Turner v.                                         ___                      ______          United  States, 396 U.S. 398,  420 (1970)); see  United States v.          ______________                              ___  _____________          Nieves-Burgos,  62  F.3d 431,  436  (1st  Cir. 1995)  (discussing          _____________          Griffin and  the relevant  case  law).8   Accordingly, in  United          _______                                                    ______          States v. Lanoue, 71 F.3d 966 (1st Cir. 1995), where the district          ______    ______          court instructed  the  jury  "that  it could  convict  Lanoue  of          conspiracy if it found he conspired to commit any one  or more of          six  object offenses" listed in the conspiracy count, id. at 979,                                                                ___          we held  that, as there  was sufficient evidence  for one of  the                                        ____________________          8    There is  an important  exception to  the rule  discussed in          Griffin, however.    "Griffin distinguishes  cases  . .  .  which          _______               _______          concern convictions that may have rested on a basis that was  not          supported by  the  evidence, from  those  concerning  convictions          possibly resting  on an invalid ground as a result of an error of          law."  Nieves-Burgos, 62 F.3d at 436; see Griffin, 502 U.S. at 58                 _____________                  ___ _______          (defining "legal error" as  "a mistake about the law,  as opposed          to a  mistake concerning the weight or  the factual import of the          evidence").  In the case of legal errors "'the proper  rule to be          applied is that  which requires a verdict  to be set  aside where          the verdict is supportable on one ground, but not on another, and          it is impossible to  tell which ground the jury selected.'"   Id.                                                                        ___          at 52 (quoting Yates v. United States, 354 U.S.  298, 312 (1957),                         _____    _____________          overruled  by  Burks  v.  United  States,  437  U.S.  1  (1978)).          _____________  _____      ______________          However, appellant  does not argue that the  conviction rested on          an invalid ground, due to an  error of law; rather, he focuses on          the  sufficiency of the evidence of the charges, the very concern          at  issue  in  Griffin.   Therefore,  we  need  not discuss  this                         _______          exception here.  See  id. at  55 (noting  that the  exception has                           ___  ___          generally been  applied "to general-verdict  convictions that may          have rested on an unconstitutional ground.").                                         -23-          object  offenses, we  did not  need to  decide whether  there was          sufficient  evidence of a conspiracy to commit  any or all of the          other  object offenses, id. at 982-83 (holding that the fact that                                  ___          there  was  sufficient  evidence  allowed  a  new  trial  despite          vacation of the conspiracy count on other grounds).  Likewise, in          United States  v. Nieves-Burgos, we applied Griffin to uphold the          _____________     _____________             _______          jury  verdict  where  there   was  sufficient  evidence  to  find          defendant  guilty for only one of three violations alleged in one          charge.  62 F.3d at 436.                    Mitchell  does  not  frame  his argument  in  terms  of          Griffin and its progeny,  however.  Rather, he seems to  make two          _______          intertwined arguments.  First,  he contends that Count I  must be          read to charge  him with  only one offense,  namely, agreeing  to          burn  the  Building  and  using  interstate  wire  facilities  to          transfer  money  to Wallace.    The  instructions, he  maintains,          expanded this offense  into two, opening him up to  the danger of          being  convicted on facts different from those charged.  A "court          may  not   substantially   amend  the   indictment  through   its          instructions  to the  jury."  United  States v.  Stewart Clinical                                        ______________     ________________          Lab.,  Inc., 652  F.2d  804, 807  (9th  Cir. 1981)  (reversing  a          ___________          conviction where the indictment charged defendants with violating          one subsection of  42 U.S.C.    1396h(b)(2) but the  government's          case  proved a violation of  another); see also  United States v.                                                 ________  _____________          Trexler,  474  F.2d 369,  371 (5th  Cir.)  (stating that  "[a]s a          _______          general rule, the Government  cannot broaden an indictment  so as          to convict the defendant on different facts from those charged in                                         -24-          the indictment"), cert. denied, 412 U.S. 929 (1973).  As a result                            ____________          of this broadening  of the indictment, he  states, the Government          was allowed to argue a "grab bag" of theories and ask the jury to          guess as to which agreement Mitchell contemplated.                    This   argument  is   substantially  answered   by  our          discussion  of Griffin above.   It is manifest  that the district                         _______          court instruction that  the jury  could find  Mitchell guilty  on          Count I  if the government  proved either  of the objects  of the          conspiracy complies with Griffin.   See Griffin, 502 U.S.  at 56-                                   _______    ___ _______          57.  Indeed, an instruction that both objects of the multi-object          conspiracy had to be proved would go  against the cited case law.          As  the district court  did not err  in presenting the  charge in          this  manner, the fairness and  integrity of the proceedings were          not  affected,  contrary  to  Mitchell's   contention  otherwise.          Similarly, Mitchell's argument that  the instructions allowed the          jury to  use conjecture as to  his role is quickly  dismissed, as          the  instructions  clearly  limit  the jury  to  the  indictment,          requiring them  to reach unanimity to find guilt on either of the          two  objects  of the  conspiracy.   Finally,  to the  extent that          Mitchell's  position is  that the instructions  were inconsistent          with  the Government's argument at  trial, he is  on shaky ground          given  that from the start of the trial the Government approached          the  conspiracy  charge  as  a  multiple  object  conspiracy,  as          demonstrated  by its  opening argument  (describing the  arson as          "the first object of the conspiracy" and separately outlining the          alleged  wire fraud  (Day  3, pp.  55  - 58))  and  proposed jury                                         -25-          instructions  ("you need not . . .  find that the defendant . . .          conspired to commit both arson and wire fraud.").                    Second,  although he never states it  in so many words,          Mitchell seems to contend that there was insufficient evidence to          prove the wire fraud charge of  the conspiracy, and thus the jury          verdict  was against  the  weight of  the evidence.   As  we have          established  that "'a  guilty verdict  on an  indictment charging          several acts  in the conjunctive, . . . stands if the evidence is          sufficient  with  respect  to  any one  of  the  acts  charged,'"          Griffin, 502 U.S. at 56-57 (quoting Turner, 396 U.S. at 420), and          _______                             ______          Mitchell does not contest  the sufficiency of the evidence  as to          the charge  of conspiracy to  commit arson,9  this position  must          also fail.                             V.  THE MOTION FOR ACQUITTAL                             V.  THE MOTION FOR ACQUITTAL                    Mitchell's next contention also centers on the evidence          --  or lack thereof -- regarding the alleged conspiracy to commit                                        ____________________          9  Mitchell lists  the elements the Government  had to prove  for          both objects of the conspiracy, but the only evidence he actually          questions, regarding the use  of interstate wire facilities, goes          solely to the wire fraud claim.             In a  footnote, Mitchell also  argues that the  court expanded          the  conspiracy's scope "by allowing the Government to argue that          Mitchell caused Gallant to  file false and fraudulent information                   ______          with the  insurance company."   (Appellant's Brief, p.  34 n.39).          He  maintains that the Government  was allowed to  prove its case          against  Mitchell  by  showing  (1)  that  he  was  partners with          Gallant,  and (2)  that  Gallant  filed  a  claim  for  insurance          proceeds without  Mitchell's assistance.   As this  argument also          goes solely to  the sufficiency  of the  evidence regarding  wire          fraud,  and there  is  no challenge  to  the sufficiency  of  the          evidence  on the conspiracy to  commit arson charge,  we need not          address it.                                         -26-          wire fraud.   18 U.S.C.    1343.10  He  posits that the  district          court  committed  reversible  error  in denying  his  motion  for          judgment  of acquittal  because  there was  no evidence  that the          defendant filed, or caused  to be filed, an insurance  claim.  As          he does not  specify which count or counts he  contends should be          reversed,  we focus  on Count  I, the  conspiracy count,  as this          evidence clearly goes to the insurance fraud claim, not the arson          claim.    We  review  Mitchell's "challenge  to  the  evidentiary          sufficiency of  the government's  case by examining  'whether the          total  evidence,  taken  in  the  light  most  amicable  to   the          prosecution, together with all reasonable inferences favorable to          it, would  allow  a  rational  factfinder to  conclude  beyond  a          reasonable  doubt that  the  defendant was  guilty as  charged.'"          United States v. Castro-Lara,  970 F.2d 976, 979 (1st  Cir. 1992)          _____________    ___________          (upholding  district court's  denial  of motion  for judgment  of          acquittal), cert. denied sub  nom. Sarraff v. United  States, 508                      ______________________ _______    ______________          U.S. 962 (1993).                                        ____________________          10  That section states, in pertinent part:                         Whoever,  having devised  or intending                      to  devise  any  scheme  or  artifice  to                      defraud,  or  for   obtaining  money   or                      property by means  of false or fraudulent                      pretenses, representations,  or promises,                      transmits  or causes to be transmitted by                      means  of  wire,   radio  or   television                      communication   interstate   or   foreign                      commerce,  any writings,  signs, signals,                      pictures  or sounds  for  the purpose  of                      executing such scheme or  artifice, shall                      be fined under  this title or  imprisoned                      not more than five years, or both.            18 U.S.C.   1343.                                         -27-                    Essentially, Mitchell  argues the following.   To prove          wire fraud  the Government had to prove:  "1) a scheme to defraud          by  means of  false  pretenses, 2)  the  defendant's knowing  and          willful  participation in the scheme  with the intent to defraud,          and 3) the use of  interstate wire communications in  furtherance          of the scheme."  Cassiere, 4 F.3d at 1011.  The Government failed                           ________          to prove the first prong of the test because it did not show that          Mitchell  made   any  false  representations  to   the  insurance          carriers, and so there  was no false pretense.   Instead, Gallant          was responsible for preparing  and presenting the insurance claim          and proof  of loss to the insurers.  The prosecution did not show          Mitchell knew or reasonably  foresaw the filing of the  claims as          the consequence of  his conduct.   Since the Government's  theory          was that Mitchell hired  Wallace to burn the Building  because it          had been closed by the city and he could no longer operate it, it          was essential to  the Government's  claim to  show that  Mitchell          knew the Club was insured  and made a claim for the  proceeds, or          caused another to do so.  However, Gallant testified that he made          the claim without Mitchell's assistance, and that he actually had          a  dispute  with  Mitchell  as  to  whether  a  claim  should  be          processed.   The only evidence  that Mitchell filed  an insurance          claim was a letter from an Edward  Garguilo to David Collins, the          insurance broker,  but there was no  evidence connecting Mitchell          to  this letter, and no  evidence showing that  the letter formed          the basis  for a request for  payment, and so it  cannot form the          basisfor anargument thatMitchell attemptedto consummatethe fraud.                                         -28-                    Even  if we accept all  of his contentions  as true, at          most they establish that there  was insufficient evidence to find          Mitchell guilty  of  the  wire  fraud object  of  the  conspiracy          charge.   As we have noted, "'if  a jury returns a guilty verdict          on an indictment charging several  acts in the conjunctive,'"  as          the  arson and wire fraud  charges were made  here, "'the verdict          stands if the evidence is  sufficient with respect to any  one of          the  acts charged.'"  Griffin, 502 U.S. at 56-57 (quoting Turner,                                _______                             ______          396 U.S.  at 420); see, e.g., Lanoue,  71 F.3d at 982-83; Nieves-                             ___  ____  ______                      _______          Burgos, 62  F.3d at 436.   As Mitchell does not  argue that there          ______          was insufficient evidence for  the arson charge, we deem  that he          has waived  the  opportunity to  do  so.   See  United States  v.                                                     ___  _____________          Zannino,  895  F.2d 1,  17  (1st  Cir.)  (applying  "the  settled          _______          appellate rule that issues adverted  to in a perfunctory  manner,          unaccompanied  by some  effort  at  developed argumentation,  are          deemed waived."), cert. denied,  494 U.S. 1082 (1990).   Thus the                            ____________          court did not err in refusing to grant the motion to acquit.11                                        ____________________          11   Mitchell argues that the court  erred in allowing the letter          sent  by  Garguilo  in  evidence  under  the  "business  records"          exception  to the hearsay rule, see Fed. R. Evid. 803(6), because                                          ___          Garguilo did not testify regarding the authenticity of the letter          or  its  accuracy,  and there  was  no  testimony regarding  what          happened  to the  letter  after Collins  received  it.   However,          Sharon  Motyl,  a  claims  technician  for Insurance  Innovators,          testified  that the claims files  were maintained in the ordinary          course of business  and included documents received  from a third          party.   She  specifically stated  that the  Garguilo letter  was          maintained  as part of the  pertinent claim file  in the ordinary          course of business.  Given this, we doubt that the district court          abused its discretion in admitting the letter.  See United States                                                          ___ _____________          v. Moore, 923 F.2d 910,  915 (1st Cir. 1991) (noting that  review             _____          of admission of evidence under the business records  exception is          for abuse of discretion).  Even if it had, its error would not be          prejudicial, as the letter  was not relevant to the  arson object                                         -29-                               VI.  MITCHELL'S SENTENCE                               VI.  MITCHELL'S SENTENCE                    Mitchell's  final  contention  on appeal  is  that  the          district  court  erred by  enhancing  his  Basic Offense  Level12          ("B.O.L.")  by four  points:   two  points  for his  role  in the          offense  as  an organizer,  leader,  manager  or supervisor,  see                                                                        ___          U.S.S.G.   3B1.1(c),  and two points for  obstruction of justice,          see U.S.S.G.    3C1.1.  After  noting our standard  of review, we          ___          address  each of  these enhancements  in turn.   For  the reasons          given below, we affirm the sentence given by the district court.                    A.  Standard of Review                    A.  Standard of Review                        __________________                    "When  we review  a district  court's application  of a          sentencing guideline, we utilize a bifurcated process.  First, we          review the guideline's legal meaning and scope de novo.  Next, we                                                         _______          review  the  court's  factfinding  for clear  error,  giving  due          deference  to the  court's application  of the guidelines  to the          facts."  United States v. Thompson, 32 F.3d 1, 4  (1st Cir. 1994)                   _____________    ________          (citations omitted). "'Due deference' in this context means that,          absent mistake of law, we will review the sentencing court's fact          based  application  of the  guidelines  only  for clear  error.'"          United States v. McDonough,  959 F.2d 1137, 1141 (1st  Cir. 1992)          _____________    _________                                        ____________________          of the conspiracy count.          12   As the  sentencing guidelines in  effect at the  time of the          sentencing were  more onerous than those in effect at the time of          the  offense (Oct.  15,  1988), the  district  court applied  the          latter set of  guidelines.  The court found a  base offense level          of  6, see U.S.S.G.    2K1.4(a),  and enhanced  it 18  levels for                 ___          knowing creation of a substantial risk of death or serious bodily          injury,  see   U.S.S.G.      2K1.4(b)(1).    With   the  disputed                   ___          enhancements, the total adjusted offense level was 28.                                         -30-          (quotingUnited Statesv. Mart nez,922F.2d 914,925 (1stCir. 1991)).                  _____________   ________                    B.  Manager or Supervisor of a Criminal Activity                    B.  Manager or Supervisor of a Criminal Activity                        ____________________________________________                    The district  court enhanced Mitchell's  B.O.L. because          it found he acted as Wallace's organizer in committing the crime.          See U.S.S.G.   3B1.1(c).13   In order to apply  section 3B1.1(c),          ___          a  court  must  first determine  that  there  were  at least  two          participants in the  crime.   See United States  v. Akitoye,  923                                        ___ _____________     _______          F.2d 221, 227  (1st Cir. 1991).  Here, the  two participants were          Wallace  and Mitchell himself.   See United States  v. Morillo, 8                                           ___ _____________     _______          F.3d 864,  872 n.13 (1st  Cir. 1993) ("The defendant himself  may          be counted in determining the overall number of participants.").                    "The second requirement for the application of  section          3B1.1(c) is  that the  defendant exercised  control over, or  was          otherwise responsible for organizing  the activities of, at least          one other individual in committing the crime."  Akitoye, 923 F.2d                                                          _______          at  227.   Here,  the district  court  found at  sentencing  that          Mitchell hired Wallace to burn the Club, as he was concerned that          the City of  Boston would not let the Club  reopen, and he wanted          to collect the insurance  proceeds.  It also found  that Mitchell          called the Club the night of the fire and, in  effect, instructed          Wallace to  start the fire.   Mitchell  challenges these  factual                                        ____________________          13   At the time of the offense that section stated:                      If  the  defendant   was  an   organizer,                      leader,  manager,  or  supervisor in  any                      criminal  activity   [involving  four  or                      fewer   participants],   increase  by   2                      levels.          U.S.S.G.   3B1.1(c) (1987).                                         -31-          findings.  He  notes that Wallace  testified that, when  Mitchell          called  him at the Club  on the night of the  fire, he asked "are          you  going to do  it?"  The  inference, Mitchell  argues, is that          Wallace  was a free agent.   Indeed, he  maintains, their contact          was almost  casual, and it was up to  Wallace to burn the Club or          not.  His argument is  of no avail.  There was evidence  at trial          that  Mitchell  initiated  discussion  of  the  arson,  recruited          Wallace to  carry it out, told him specifically how to do it, and          promised to pay him.  Given the record, we find no clear error in          the district court's factual findings.  Compare United States  v.                                                  _______ _____________          Balogun, 989 F.2d 20, 23 (1st Cir.  1993) (finding no clear error          _______          in trial court's application of   3B1.1(c) where the facts showed          defendant initiated the conspiracy,  received more money than his          co-conspirator, paid  his co-conspirator  for his cooperation  in          the scheme,  and used  cars fraudulently  registered  to the  co-          conspirator to stage accidents) with United States v. Castellone,                                          ____ _____________    __________          985 F.2d 21, 26  (1st Cir. 1993) (refusing to  uphold application          of   3B1.1(c)  where the  district court did  not find  defendant          controlled anyone else's movements)  and United States v. Fuller,                                               ___ _____________    ______          897 F.2d 1217, 1221 (1st Cir. 1990) (holding that "in the absence          of any  evidence that [defendant] exercised  control over [other]          persons  or was otherwise responsible  for organizing them in the          commission  of the offense,  the mere  fact that  [defendant] had          dealt  with  a large  quantity of  marijuana  does not  support a          finding that he was an organizer, leader, supervisor, or manager"          in conspiracy to distribute marijuana).                                         -32-                    Mitchell seeks to rely on the Second Circuit's decision          in United States v.  McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993),             _____________     ________          in  arguing that section  3B1.1(a) does not apply  here.  In that          case, the  court found that a  drug dealer who asked  his wife to          give  a  package to  buyers was  not  an organizer  under section          3B1.1, since it was  an isolated occurrence.  Mitchell  relies on          McGregor to argue  that the  isolated request  for assistance  he          ________          made to Wallace did not rise to the level the Guideline requires,          noting that there was no evidence that they had acted  in concert          for any  other criminal  activity.   His  reliance is  misplaced,          however.  The dealer in McGregor bought  and resold at least four                                  ________          ounces of cocaine  a week for over a year,  and involved his wife          on only one occasion.   His sentence reflected all his prior drug          dealing  activity.  In this context, the court held that "against          the  whole background of the case" McGregor's use of his wife did          not  rise  to  the level  of  an  organizer,  leader, manager  or          supervisor.  Id.  at 1138  (noting that "[i]f  McGregor had  been                       ___          charged  with drug activity on any other day during the preceding          year, he  would have received a  sentence without enhancement.").          In the present case, the district court found that Mitchell hired          Wallace to  burn the Club and  instructed him how and  when to do          it.  Clearly, these facts are distinguishable from the husband in          McGregor who  asks his  wife to give  buyers a  package since  he          ________          would not be home to do it himself.  As the McGregor court noted,                                                      ________          "[i]n the usual  case, obtaining  the services  of a  participant          would make  one a  supervisor subject to  an enhanced  sentence."                                         -33-          Id.  This is just such a usual case.14          ___                    C.  Obstruction of Justice                    C.  Obstruction of Justice                        ______________________                    The district  court concluded that  Mitchell obstructed          justice  through his  use of  his tape  recordings to  attempt to          cover up the conspiracy  to commit arson, finding that  they were          made in an effort to create a false record, and were "intended to          mislead authorities  investigating this  case and to  deceive the          jury,  indeed, a judge, should the matter develop to that point."          (Sentencing hearing, at 45).  The court accordingly increased the          B.O.L. by  two additional  points.  See  U.S.S.G.   3C1.1.15   In                                              ___          his brief, Mitchell does not contest the district court's factual          findings.   Instead, he makes  three arguments  designed to  show          that  his  use  of  the  tapes  did  not  rise  to  the level  of          obstruction required to apply  this section.  We address  each in          turn.                    First, Mitchell  points out that the  investigation was          not obstructed in any  manner, as the investigators did  not know                                        ____________________          14    Mitchell's point  that he  did  not conduct  other criminal          activity in  concert with Wallace  is irrelevant:   when weighing          application of  section 3B1.1(a),  the sentencing court  looks to          the criminal activity charged.   See, e.g., Balogun, 989  F.2d at                                           ___  ____  _______          23.          15  At the time of the offense that section stated:                      If  the  defendant  willfully impeded  or                      obstructed,  or  attempted  to impede  or                      obstruct  the  administration of  justice                      during  the investigation  or prosecution                      of  the  instant  offense,  increase  the                      offense level . . . by 2 levels.          U.S.S.G.   3C1.1 (1987).                                         -34-          of the tapes' existence  until after his  arrest.  They were  not          misled  by them in  any way.   See United States  v. Manning, 955                                         ___ _____________     _______          F.2d  770  (1st Cir.  1992) (finding  that  giving false  name to          arresting officers did not amount to obstruction of justice under            3C1.1, as  it did not mislead  them).  This  argument is a  red          herring, however:   the guideline itself provides that it applies          if a defendant attempts to obstruct the administration of justice          not  only   during  the   investigation,  but  also   during  the          prosecution  of   an  offense.     Thus,   whether  or   not  the          investigation  was impacted  by  the tapes  is irrelevant,  since          Mitchell used them at trial.                    Mitchell's second argument is that his use of the tapes          did  not thwart the administration of justice, since there was no          intimidation  of the witnesses,  and no  attempt to  prevent them          from testifying  at trial.   This, too, is  a red herring,  since          intimidating or influencing a witness is not required in order to          find obstruction of justice  under section 3C1.1.  Of  course, it          is  one  method that  the commentary  to  that section  notes may          provide a  basis for finding a defendant  obstructed justice, see                                                                        ___          U.S.S.G.   3C1.1  comment. (n.  1(d)), but the  commentary's list          is, by its terms, not exclusive.                    Finally, Mitchell argues that his use of the tapes does          not qualify for an enhancement under section 3C1.1 because he did          not use them as  an affirmative weapon, since they were only used          for  impeachment  purposes.    The  trial  court's  decision,  he          maintains, seeks to punish passive, defensive conduct designed to                                         -35-          protect  the   cross-examination  process.     However,   as  the          Government  points  out, Mitchell's  use  of  the tapes  was  not          passive.   He used  portions of  the February  1 and  February 11          tapes to demonstrate his  state of mind, and used  the February 7          tape to cross-examine Wallace.                    Indeed,  Mitchell  does   not  challenge  the  district          court's factual finding that the tapes were made in an attempt to          create a  false record, and we find no clear error in the court's          finding.   Given that, the  court's application of  section 3C1.1          was  clearly proper.  As  the current commentary  to that section          notes, "producing or attempting  to produce a false . .  . record          during  a  .  . .  judicial  proceeding" rises  to  the  level of          obstructing justice.  U.S.S.G.   3C1.1 comment. (n. 3(c)) (1995);          see  U.S.S.G.   3C1.1  comment. (n.  1(c)) (1987)  ("producing or          ___          attempting  to produce an altered,  forced, or counterfeit  . . .          record  during a  . . .  trial" may  be a  basis  for applying             3C1.1); see, e.g.,  United States v. Rojo-Alvarez, 944  F.2d 959,                  ___  ____   _____________    ____________          969 (1st Cir. 1991) (finding  that submission of altered passport          as  verification  of  defendant's  identity  met  obstruction  of          justice standard);  cf. United  States v. Ruiz-Batista,  956 F.2d                              ___ ______________    ____________          351,  353-54 (1st  Cir.) (upholding  use of  sentencing guideline          commentary added after date of offense where commentary clarified          what  conduct  could  be considered  in  determining  defendant's          role), cert. denied, 506 U.S. 834 (1992).  As Mitchell produced a                 ____________          falsified  record  at  trial,  we  uphold  the  district  court's          enhancement of his sentence for obstruction of justice.                                         -36-                                   VII.  CONCLUSION                                   VII.  CONCLUSION                    For  the  reasons stated  above,  the  decision of  the          district court is affirmed.                            affirmed                            ________                                         -37-
