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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-2181 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                        KENNETH M. CONLEY, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Robert E. Keeton, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Selya and Lynch, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Willie J. Davis, with whom Frances L. Robinson, and Davis, <br>Robinson & White, LLP were on brief, for appellant. <br>    S. Theodore Merritt, Assistant United States Attorney, with <br>whom Bill Lann Lee, Acting Assistant Attorney General, Donald K. <br>Stern, United States Attorney, and Sheryl L. Robinson, Trial <br>Attorney, Criminal Section, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                          July 23, 1999 <br>                       ____________________

  TORRUELLA, Chief Judge.  The underlying case in this <br>appeal stems from an April 1997 federal grand jury investigation <br>into an incident in which Michael Cox, a plain clothes Boston <br>police officer, was allegedly mistaken for a fleeing suspect and <br>beaten by unknown police officers in violation of 18 U.S.C.  242.  <br>On May 29, 1997, defendant-appellant Kenneth Conley, a Boston <br>police officer at the scene of the incident, testified before the <br>grand jury pursuant to an immunity order.  Conley was subsequently <br>convicted of perjury and obstruction of justice as a result of his <br>grand jury testimony and was sentenced to thirty-four months <br>imprisonment and a $6,000 fine.  Conley now appeals his conviction. <br>                            BACKGROUND <br>  At approximately 2:30 a.m. on January 25, 1995, a <br>shooting occurred at a restaurant on Blue Hill Avenue in the Grove <br>Hall section of Boston.  It was mistakenly broadcast over the <br>police radio that the victim of the shooting was a Boston police <br>officer.  The suspects were described as four black males driving <br>a gold Lexus.  The mistaken broadcast of a police officer down <br>generated a massive response by police cruisers from several <br>different districts.  A chase ensued. <br>  The suspects led the police on a lengthy car chase <br>spanning three police districts and several towns.  The closest <br>police vehicle behind the Lexus throughout most of the chase was an <br>unmarked police cruiser occupied by plain clothes officers Craig <br>Jones and Michael Cox.  Jones was the driver of the vehicle, and  <br>Cox occupied the passenger seat. <br>  The car chase finally ended when the suspects drove down <br>a dead end street known as Woodruff Way in Mattapan.  When the <br>suspects arrived at the cul-de-sac at the end of Woodruff Way, the <br>Jones/Cox unmarked cruiser was the first police car on the scene, <br>and skidded to a stop on the left side of the Lexus.  The second <br>police cruiser to arrive was occupied by uniformed officers David <br>Williams and James Burgio.  Williams and Burgio pulled in on the <br>right side of the Lexus.  Uniformed officer Ian Daley arrived next, <br>and pulled in directly behind the Lexus.  Immediately behind Daley <br>was uniformed officer Richard Walker, followed by defendant- <br>appellant Conley and his partner, Robert Dwan.  The Conley/Dwan <br>vehicle was thus the fifth police vehicle on the scene.  Conley and <br>Dwan wore plain clothes and occupied an unmarked police vehicle. <br>  As the gold Lexus came to a stop at the end of Woodruff <br>Way, Cox observed one of the suspects, later identified as Robert <br>Brown, exit the gold Lexus from the passenger side, and run to the <br>right, towards a fence.  In pursuit, Cox exited his vehicle from <br>the passenger side, ran behind the Lexus, and followed the suspect <br>to the right, towards the fence.  Cox described the suspect as a <br>black male wearing a brown leather jacket.  Cox, also black, was <br>wearing jeans, a black hooded sweatshirt, and a three-quarter <br>length black down jacket. <br>  Cox chased the suspect to the fence, approximately twenty <br>feet away.  During the chase, Cox was "about three feet" behind the <br>suspect.  (Tr. Vol. II at 31).  When the suspect got to the fence, <br>the suspect began climbing over it, catching his jacket for a <br>moment on the top.  At that moment, Cox reached up and attempted to <br>grab the suspect and pull him back over the fence.  Cox testified <br>that approximately two seconds elapsed between the time that the <br>suspect caught his jacket on the top of the fence and the time when <br>Cox grabbed the suspect's jacket in an attempt to pull him back <br>over the fence.  (See Tr. Vol. II at 14, 76).  Cox's attempt <br>failed, however, and the suspect dropped down on the other side of <br>the fence and started to run.  Cox did not observe anyone else <br>climb over the fence between him and the suspect. <br>  After the suspect landed on the other side, Cox took a <br>step back from the fence, considering for a moment whether to <br>follow over the fence.  A moment later, Cox placed both his hands <br>up on the fence, as if to go over.  At that point, Cox felt a sharp <br>blow on the back of his head, like a metal pipe.  The next thing he <br>knew he was on the ground on his hands and knees, trying to get up.  <br>He observed a white male standing in front of him, wearing boots <br>and a dark uniform.  Cox was repeatedly kicked in the head, back, <br>face, and mouth by several different people all at once.  The <br>beating did not stop until Cox heard someone yell: "Stop, stop, <br>he's a cop, he's a cop."  (Tr. Vol. I at 88).  When the kicking <br>finally stopped, Cox attempted to get up from the ground.  When he <br>looked up, he realized that there was no one around to assist him.  <br>Cox was forced to use the bumper of a police car to pull himself up <br>from the ground. <br>  In April 1997, a federal grand jury commenced an <br>investigation into the beating of Officer Michael Cox.  The grand <br>jury sought to determine the identity of the officers who attacked <br>Michael Cox and/or deliberately failed to prevent the assault and  <br>to get medical attention for him once they knew he was injured.  On <br>May 29, 1997, defendant-appellant Conley, an officer present at the <br>scene, was called before the grand jury to recount the events he <br>observed and the actions he took at Woodruff Way in the early <br>morning hours of January 25, 1995. <br>  Consistent with Cox's version of events, Conley testified  <br>that when he arrived at the dead end on Woodruff Way, his vehicle <br>was about the fourth or fifth police car in line behind the <br>suspects' gold Lexus, approximately forty feet away.  (See Tr. Vol. <br>II at 229-30, 232).  Also consistent with Cox's account, Conley <br>testified that once the Lexus skidded to a stop, a black male <br>wearing a brown leather jacket exited from the passenger side of <br>the Lexus and ran to the right, towards a fence.  Conley exited his <br>vehicle in pursuit.  While in pursuit, Conley observed the suspect <br>scale the fence, drop down on the other side, and start to run.  <br>(See id. at 233). <br>  Conley testified that he made all of these observations <br>as he pursued the suspect, beginning from the time the suspect <br>first exited the gold Lexus up to the time when the suspect landed <br>on the other side of the fence and started to run.  According to <br>Cox's testimony, Conley made these observations at precisely the <br>same time that Cox was chasing "right behind" the suspect.  (Tr. <br>Vol. I at 77).  However, before the grand jury, Conley testified <br>that during that time he did not observe anyone -- either in plain <br>clothes or in uniform -- between him and the suspect.  In direct <br>conflict with Cox's account, Conley testified as follows: <br>           Q:     All right.  Now, officer Conley, when <br>         you were chasing the suspect as he went <br>         over to the fence, did you see another <br>         individual chasing him as well? <br>           A:     No, I did not. <br>           Q:     Did you see anyone else in plain <br>         clothes behind him as he went towards <br>         the fence? <br>           A:     No, I didn't. <br>           Q:     Did you see, as he went on top of the <br>         fence or climbed the fence, another <br>         individual in plain clothes standing <br>         there, trying to grab him?  <br>           A:     No, I did not. <br>           Q:     When you saw the suspect get to the top <br>         of the fence, did you see another <br>         individual in plain clothes grabbing <br>         part of his clothing -- <br>           A:     No, I did not. <br>           Q:     -- as he went over the fence? <br>           A:     No, I did not. <br>           Q:     So that didn't happen; is that correct?  <br>         Because you saw the individual go over <br>         the fence? <br>           A:     Yes, I seen [sic] the individual go <br>         over the fence. <br>           Q:     And if these other things that I've <br>         been describing, a second -- another <br>         plain clothes officer chasing him, and <br>         actually grabbing him as he went to the <br>         top of the fence, you would have seen <br>         that if it happened; is that your <br>         testimony? <br>           A:     I think I would have seen that.  <br>(Tr. Vol. II at 235-36).  Conley further testified that when he got <br>to the fence, he climbed over it in "approximately the same <br>location" that he had observed the suspect go over the fence, and <br>continued in pursuit.  (Id. at 239).  Eventually, after chasing the <br>suspect for approximately one mile, Conley apprehended him and <br>effected an arrest. <br>  Two other individuals, present at the scene, testified at <br>Conley's trial: Officer Walker, and the suspect, Robert Brown.  <br>Officer Walker corroborated Cox's version of events up to the point <br>when the suspect climbed over the fence and dropped down on the <br>other side: <br>           Q:     Did you see - did Officer Cox reach for <br>         the person on the fence? <br>           A:     Yes, he did. <br>           Q:     What did the person who went over the <br>         fence do once they went over the fence? <br>           A:     Once he went over the fence, he fell. <br>                                . . .  <br>           Q:     What did Officer Cox do once the person <br>         went over the fence? <br>           A:     I don't know. <br> <br>(Tr. Vol. II at 32).  After observing the suspect fall on the other <br>side of the fence, Walker ran from his car straight ahead to a hole <br>in the fence.  Walker did not see Cox put his hands on the fence, <br>as if to go over.  The last thing Walker saw Cox do was reach for <br>the suspect caught on the fence.  (See id. at 33). <br>  Once through the hole in the fence, Walker ran to the <br>right, in pursuit of the fleeing suspect.  As he ran, he came upon <br>two white, plain clothes police officers standing in the street.  <br>Walker testified that no one had passed by him from the time that <br>he ran through the hole in the fence to the time when he <br>encountered the two white police officers.  He did not know where <br>the two officers had come from; he had not observed them jump over <br>the fence.  The taller of the two officers asked Walker whether he <br>had a light, and when Walker responded that he did not, the taller <br>officer took off running.  Walker followed, approximately two yards <br>behind.  (See Tr. Vol. II at 67). <br>  During the chase, the tall white officer in front of <br>Walker dropped his radio.  Walker stopped to pick up the radio, and <br>then continued in pursuit.  When the tall white officer finally <br>apprehended the suspect, Walker returned his radio to him.  At <br>trial, Walker testified that the tall white officer was <br>approximately the same height and size as defendant-appellant <br>Conley. <br>  Robert Brown, the suspect wearing the brown leather <br>jacket who was allegedly pursued by both Cox and Conley, also <br>testified at trial.  Brown corroborated much of Cox's account.  He <br>testified that when the Lexus skidded to a stop at the end of <br>Woodruff Way, he exited the vehicle from the rear passenger side, <br>and headed to the right, towards the fence.  He further testified <br>that as he ran towards the fence, he looked back and saw a black <br>man wearing black clothing running behind him.  When he arrived at <br>the fence, Brown flipped over it, catching his jacket on the top.  <br>Brown stated that as he attempted to free his jacket from the top <br>of the fence, he felt somebody touch his foot.  Once he became free <br>of the fence, Brown fell backwards down a hill, ran into a tree, <br>and split his tooth in half.  Dazed and confused, Brown remained on <br>the ground for a moment and observed a black man wearing a "black <br>hoody" start to "go for the fence."  (Tr. Vol. II at 97-8).  As the <br>man grabbed for the fence, Brown observed a police officer hit the <br>man twice on the back of the head with a billy club or a <br>flashlight, something "shaped like a pipe."  (Id. at 98).  Brown <br>described the police officer as a tall, black man with a mustache, <br>wearing a Boston police uniform and a badge. <br>  Brown next observed a second officer come over to the <br>fence to assist the tall black officer in wrestling the black man <br>to the ground.  Once the man was down on the ground, Brown <br>testified that approximately three or four other police officers -- <br>uniformed and plain clothes -- came over to the fence and began to <br>kick the man.  At this point, Brown stood up to run.  As he stood <br>up, Brown made eye contact with a tall white officer on the other <br>side of the fence.  Brown testified that he did not observe this <br>white officer kick the man on the ground. <br>  Once the tall white officer made eye contact with Brown, <br>Brown began to run, and the white officer followed.  Eventually, <br>the white officer caught Brown and arrested him.  At trial, Brown <br>testified that the arresting officer was the same tall white <br>officer he had made eye contact with through the fence. <br>  On August 14, 1997, Conley was charged in a three-count <br>indictment arising from his grand jury testimony.  Count One <br>charged that Conley committed perjury, in violation of 18 U.S.C. <br> 1623, by denying that he saw Cox chase, pursue, and grab hold of <br>a suspect as that suspect ran toward and climbed the fence at <br>Woodruff Way.  Count Two charged that Conley also committed perjury <br>by denying that he saw Boston police officers strike and kick Cox.  <br>Count Three charged that Conley obstructed and endeavored to <br>obstruct the grand jury investigation by giving false, evasive, and <br>misleading testimony and withholding information, in violation of <br>18 U.S.C.  1503.  On June 10, the jury returned verdicts of guilty <br>on Counts One and Three and not guilty on Count Two.   <br>                            DISCUSSION <br>  On appeal, Conley raises several challenges to his <br>conviction.  We address each of his challenges in turn. <br>1.  The Testimony of the Grand Juror <br>  Title 18 U.S.C.  1623 states, in relevant part: <br>    Whoever under oath . . . in any proceeding <br>  before or ancillary to any court or grand jury <br>  of the United States knowingly makes any false <br>  material declaration . . . shall be fined not <br>  more than $10,000 or imprisoned not more than <br>  five years, or both. <br> <br>18 U.S.C.  1623.  It is uncontested that a conviction under  1623 <br>requires that the statements made be "material" to the proceeding, <br>here a grand jury investigation.  See id.  It is also uncontested <br>that "materiality" is an element that the government bears the <br>burden of proving.  The question presented by defendant-appellant <br>Conley is whether the district court erred in allowing the <br>government to prove this element by calling Jeanne LaBelle, a <br>member of the grand jury that investigated the Cox incident, to <br>testify as to the scope and purpose of the grand jury's <br>investigation.  Conley contends that the district court erred in <br>admitting Ms. LaBelle's testimony, and that such error warrants <br>reversal of his conviction.  We disagree. <br>  A.  Fed. R. Evid. 606(b) <br>  Before this court, Conley argues for the first time that <br>the admission of Ms. LaBelle's testimony violated Fed. R. Evid. <br>606(b).  Although Conley objected to the admission of <br>Ms. LaBelle's testimony on other grounds, Conley never raised the <br>applicability of Rule 606(b) before the district court.  "Our law <br>is clear that a party ordinarily may not raise on appeal issues <br>that were not seasonably advanced (and, hence preserved) below."  <br>Cooperman v. Individual, Inc., 171 F.3d 43, 50 (1st Cir. 1999) <br>(quoting Daigle v. Maine Medical Center, Inc., 14 F.3d 684, 687 <br>(1st Cir. 1994)).  We see no reason to depart from this well- <br>established rule in this case.  We thus decline to address Conley's <br>Rule 606(b) argument, except to say that plain error is plainly <br>absent. <br>  B.  Fed. R. Evid. 403 <br>  Conley next claims that the district court erred in <br>admitting Ms. LaBelle's testimony because its probative value was <br>substantially outweighed by the danger of unfair prejudice.  See <br>Fed. R. Evid. 403.  Specifically, Conley argues that the admission <br>of the testimony of a grand juror who voted to return an indictment <br>against him was unfairly prejudicial in that it called upon the <br>petit jury to evaluate the credibility of a grand juror.  Conley <br>contends that because of the "natural tendency" of the petit jury <br>to identify with the grand juror, the petit jury inevitably gave <br>undue weight and credence to Ms. LaBelle's testimony.  Conley <br>further argues that the admission of Ms. LaBelle's testimony <br>unfairly prejudiced his case because it caused the jury to confuse <br>the standards of proof governing the grand jury decision to indict <br>and the petit jury decision to convict, respectively.  Finally, <br>Conley claims that the government's use of the testimony of a <br>member of the grand jury that returned an indictment against him, <br>violated his presumption of innocence in that it called upon the <br>jury to infer guilt from the fact of his indictment.  For all of <br>these reasons, Conley maintains that the admission of Ms. LaBelle's <br>testimony should have been excluded under Fed. R. Evid. 403. <br>  We review the district court's Rule 403 determination for <br>abuse of discretion.  See United States v. Cruz-Kuilan, 75 F.3d 59, <br>61 (1st Cir. 1996).  We note that "[o]nly rarely -- and in <br>extraordinarily compelling circumstances -- will we, from the vista <br>of a cold appellate record, reverse a district court's on-the-spot <br>judgment concerning the relative weighing of probative value and <br>unfair effect."  United States v. Saccoccia, 58 F.3d 754, 773 (1st <br>Cir. 1995) (quoting Freeman v. Package Mach. Corp., 865 F.2d 1331, <br>1340 (1st Cir. 1988)). <br>  Although the district court did not make express  <br>findings with respect to its Rule 403 balancing, it is apparent <br>from the record that the court was aware of its responsibility to <br>balance the probative value of Ms. LaBelle's testimony against its <br>unfairly prejudicial effect.  See United States v. Santagata, 924 <br>F.2d 391, 394 (1st Cir. 1991) (where pleadings and record evidence <br>show that court was aware of its Rule 403 responsibility, express <br>findings not necessary).  As the district court noted, the <br>testimony of Ms. LaBelle was clearly relevant to materiality.  <br>Ms. LaBelle testified as to the scope and purpose of the grand jury <br>inquiry: <br>    We were investigating an assault that took <br>  place on Officer Michael Cox on January 25th <br>  of 1995, and we were trying to establish the <br>  identity of officers who participated in the <br>  attack.  We were trying to determine if there <br>  was excessive force used, and also we were <br>  trying to determine who the officers were who <br>  deliberately failed to get medical attention <br>  once they knew that he had been injured. <br> <br>(Tr. Vol. III at 114).  Ms. LaBelle further testified that <br>defendant-appellant Conley was one of approximately forty-five <br>officers called to testify before the grand jury, and that after <br>Conley's testimony the grand jury did not have any more evidence <br>concerning the identity of the officers who beat Cox or the <br>identity of any witnesses to the beating.  Finally, Ms. LaBelle <br>testified that at the time she ended her service as a grand juror, <br>the grand jury had not returned any indictments for the assault of <br>Michael Cox.  Ms. LaBelle's testimony was probative in the sense <br>that it provided a context for Conley's allegedly false statements <br>from which the jury could infer materiality. <br>  We next consider Conley's assertions of prejudicial <br>effect.  Conley offers no evidence to support his theory that the <br>petit jurors were improperly influenced by their sense of identity <br>or "camaraderie" with Ms. LaBelle.  Absent such evidence, we cannot <br>conclude that the mere possibility that some sort of bonding <br>occurred between the petit jury and Ms. LaBelle substantially <br>outweighs the probative value of Ms. LaBelle's testimony.  <br>Moreover, as the government points out, the petit jury's split <br>verdict undermines Conley's theory of improper influence.  See <br>United States v. Dworken, 855 F.2d 12, 29 (1st Cir. 1988) (jury's <br>acquittal on one count indicates that it was not influenced by <br>potentially prejudicial evidence). <br>  Conley's other claims of unfair prejudice stem from the <br>district court's failure to explicitly instruct the jury with <br>respect to the different standards of proof governing the grand <br>jury's decision to indict and a petit jury's decision to convict.  <br>We find no unfair prejudice.  Any risk of juror confusion <br>concerning the appropriate standard of proof was minimized by the <br>district judge's thorough instructions concerning the presumption <br>of innocence and the government's burden to prove its case beyond <br>a reasonable doubt.  In addition, the district judge made it <br>abundantly clear to the jurors on several different occasions that <br>the indictment returned by the grand jury "is in no sense a part of <br>the evidence that you will consider as you consider whether the <br>government has met its heavy burden of proof of guilt beyond a <br>reasonable doubt."  (Tr. Vol. I at 32).  Finally, the district <br>judge explicitly requested Conley to submit any additions to the <br>proposed jury instructions "in order to make it clear that in no <br>way does receiving any testimony make the indictment a part of the <br>evidence that the jury is to consider."  (Tr. Vol. III at 71).  <br>Conley failed to submit any such suggestions and cannot now <br>complain of unfair prejudice. <br>  For the reasons discussed above, we conclude that the <br>district court acted well within its discretion in allowing the <br>government to call Ms. LaBelle to testify as to the scope of the <br>grand jury investigation for the purpose of proving the materiality <br>of Conley's statements. <br>  C.  Fed. R. Crim P. 6(e)(2) <br>  Conley next alleges that the district court erred by <br>permitting Ms. LaBelle to testify because the government failed to <br>petition the court in advance for a disclosure order as required by <br>Fed. R. Crim. P. 6(e)(3)(C)(i) & (D).  We review Conley's claim de <br>novo to the extent that he raises a legal issue with respect to the <br>applicability of Fed. R. Crim. P. 6(e)(3)(C)(i) to the <br>circumstances of this case.  See Civil v. INS, 140 F.3d. 52, 58 <br>(1st Cir. 1998). <br>  Fed. R. Crim. P. 6(e) codifies the traditional rule of <br>grand jury secrecy.  See Fed. R. Crim. P. 6(e).  Under subsection  <br>6(e)(2) grand jurors, attorneys for the government, and other <br>personnel attached to the grand jury, are prohibited from <br>disclosing matters occurring before the grand jury.  See Fed. R. <br>Crim. P. 6(e)(2).  Of course, there are exceptions to this general <br>rule, see Fed. R. Crim. P. 6(e)(3), and the government and Conley <br>disagree with respect to which exception (if any) applies here. <br>  Conley contends that pursuant to subsection <br>6(e)(3)(C)(i), see supra n.9, the government was required to <br>petition the district court for a disclosure order before calling <br>Ms. LaBelle to testify at trial as to the scope of the grand jury <br>inquiry.  Conley argues that the government's failure to comply <br>with the specific procedures set forth in subsection 6(e)(3)(D), <br>see supra n.9, constitutes reversible error.  The government <br>asserts that it was under no obligation to petition the court for <br>an order of disclosure because it was entitled under 6(e)(3)(A)(i) <br>to disclosure as a matter of course.  We agree with the <br>government. <br>  Subsection 6(e)(3)(A)(i) authorizes disclosure as a <br>matter of course, without any court order, to "an attorney for the <br>government for use in the performance of such attorney's duty."  <br>Clearly, government attorneys have a duty to prosecute perjury <br>before a grand jury.  In the performance of this duty, "it has been  <br>standard practice for government attorneys to use the transcript of <br>the grand jury proceedings in preparing a case for trial, <br>refreshing the recollection of government witnesses, impeaching <br>witnesses at trial, and prosecuting for perjury before the grand <br>jury."  Wright & Miller, 1 Fed. Prac. & Proc. Crim. 3d  107 <br>(1999).  No court order is or has been required for this type of <br>disclosure.  See id.; see also United States v. Garca, 420 F.2d <br>309, 311 (2d Cir. 1970) ("No purpose would be served by requiring <br>the court to approve a use of grand jury minutes which is implicit <br>in the duties of the United States Attorney.").  Although we have <br>found no case law upholding the specific right of government <br>attorneys to similarly call grand jurors to testify as witnesses at <br>trial without prior court approval, we conclude that this means of <br>fulfilling the government attorney's duty also falls within the <br>scope of (A)(i). <br>  In this case, Ms. LaBelle disclosed to the government <br>attorney information concerning the scope and purpose of the grand <br>jury inquiry.  The purpose of this disclosure was to assist the <br>government attorney in the performance of his duty to prove the <br>materiality of Conley's statements, in order to prosecute perjury <br>before the grand jury.  Such use falls squarely within the scope of <br>Rule 6(e)(3)(A)(i) and thus the government was under no obligation <br>to obtain prior court approval. <br>2.  The Sufficiency of the Evidence <br>  The district court's denial of Conley's motion for <br>judgment of acquittal presents a question of law, which we review <br>de novo.  See United States v. Czubinski, 106 F.3d 1069, 1073 (1st <br>Cir. 1997).  Like the district court, "we scrutinize the evidence <br>in the light most compatible with the verdict, resolve all <br>credibility disputes in the verdict's favor, and then reach a <br>judgment about whether a rational jury could find guilt beyond a <br>reasonable doubt."  United States v. Taylor, 54 F.3d 967, 974 (1st <br>Cir. 1995). <br>  Count One of the indictment charges Conley with knowingly <br>making false material statements before the grand jury with respect <br>to whether he observed an individual later determined to be Officer <br>Michael Cox, "chase, pursue, and grab hold of a suspect as that <br>suspect ran toward and climbed a fence in his attempt to get away <br>from police at or near Woodruff Way . . . on January 25, 1995."  <br>Count Three of the indictment charges Conley with corruptly <br>endeavoring to obstruct the pending grand jury inquiry by making <br>those false statements.  The exchange upon which these accusations <br>are based went as follows: <br>           Q:     All right.  Now, officer Conley, when <br>         you were chasing the suspect as he went <br>         over to the fence, did you see another <br>         individual chasing him as well? <br>           A:     No, I did not. <br>           Q:     Did you see anyone else in plain <br>         clothes behind him as he went towards <br>         the fence? <br>           A:     No, I didn't. <br>           Q:     Did you see, as he went on top of the <br>         fence or climbed the fence, another <br>         individual in plain clothes standing <br>         there, trying to grab him?  <br>           A:     No, I did not. <br>           Q:     When you saw the suspect get to the top <br>         of the fence, did you see another <br>         individual in plain clothes grabbing <br>         part of his clothing -- <br>           A:     No, I did not. <br>           Q:     -- as he went over the fence? <br>           A:     No, I did not. <br>           Q:     So that didn't happen; is that correct?  <br>         Because you saw the individual go over <br>         the fence? <br>           A:     Yes, I seen [sic] the individual go <br>         over the fence. <br>           Q:     And if these other things that I've <br>         been describing, a second -- another <br>         plain clothes officer chasing him, and <br>         actually grabbing him as he went to the <br>         top of the fence, you would have seen <br>         that if it happened; is that your <br>         testimony? <br>           A:     I think I would have seen that.  <br>     <br>(Tr. Vol. II at 235-36).  Conley argues that the government <br>presented insufficient evidence at trial to prove that these <br>statements were false.  We disagree. <br>  The weakness of the government's case lies in the absence <br>of any direct evidence as to what Conley in fact observed during <br>the early morning hours of January 25, 1995 in the cul-de-sac at <br>the end of Woodruff Way.  But this weakness is not fatal.  As this <br>court has recognized: <br>    Perjury cases, like all criminal cases, are <br>  susceptible to proof by circumstantial <br>  evidence, and in fact are peculiarly likely to <br>  be proven in this manner because one of the <br>  elements of the crime is that the defendant <br>  knew his statement was false when he made it. <br> <br>United States v. Moreno Morales, 836 F.2d 684, 690 (1st Cir. 1988) <br>(quoting United States v. Chapin, 515 F.2d 1274, 1278 (D.C. Cir. <br>1975)).  At trial, the government presented ample circumstantial <br>evidence from which a rational jury could conclude that Conley's <br>statements were false beyond a reasonable doubt. <br>  By comparing Conley's testimony about the timing and <br>location of his actions with the testimony of Cox, Walker, and <br>Brown, the jury reasonably concluded that Conley lied when he <br>stated that he did not observe Cox chasing the suspect.  Conley <br>testified that upon arrival at the scene, he observed Brown exit <br>from the passenger side of the Lexus, run to the right, and climb <br>over the fence.  Most significantly, Conley testified that "within <br>seconds of seeing [the suspect] go over" the fence he scaled the <br>fence at the same location.  (Tr. Vol. III at 15; Vol. II at 239). <br>  Both Cox and Walker placed Cox at the exact same time at <br>the exact same place where Conley claims to have climbed over the <br>fence.  According to their testimony, which we must view in the <br>light most favorable to the verdict, see United States v. Olbres, <br>61 F.3d 967, 970 (1st Cir. 1995), Cox was "right behind" Brown, <br>approximately three feet behind him, as Brown approached the fence.  <br>(Tr. Vol. I at 77; Vol. II at 31).  When Brown reached the fence, <br>Cox was even closer.  At that point, Cox was close enough to make <br>contact with Brown and attempt to pull him back over the fence.  <br>Brown corroborated this version of events when he testified that a <br>black man wearing a "black hoody" was behind him as he ran toward <br>the fence and had just started to come over the fence after him <br>when he observed the black man being struck on the head by a police <br>officer.  (Tr. Vol. II at 94, 97, 98).  Brown confirmed that the <br>person behind him was close enough to make contact with his foot as <br>he scaled the fence.  (See Tr. Vol. II at 96). <br>  Conley's testimony that he scaled the fence "within <br>seconds" of seeing Brown go over the fence, and that he scaled the <br>fence in the same location as Brown does not square with the <br>testimony of Cox, Walker, and Brown.  Conley's version of the <br>events provides for no reasonable gap in time during which he could <br>have missed observing Cox at the fence.  Indeed, Conley concedes <br>that if the Cox/Walker/Brown version is true, he would have seen <br>Cox at the fence.  (See Tr. Vol. II at 236).  In reaching its <br>verdict, the jury apparently found the Cox/Walker/Brown version <br>more credible. <br>  Our role on review is limited.  We must "resolve all <br>credibility disputes in the verdict's favor."  Olbres, 61 F.3d at <br>970.  Based on the evidence, we find that the jury was entitled to <br>credit the testimony of Cox, Walker, and Brown, and conclude that <br>Conley's statements before the grand jury were false.  We thus <br>affirm the district court's denial of Conley's motion for judgment <br>of acquittal with respect to Counts One and Three.

3.  Fed. R. Evid. 106 <br>  Conley next contends that the district court abused its <br>discretion in admitting into evidence excerpts of the transcript of <br>his grand jury testimony, then denying his request to admit the <br>transcript in its entirety for the purpose of placing those <br>excerpts in a proper context as required by Fed. R. Evid. 106.  <br>The government maintains, however, that despite explicit <br>questioning by the district court, Conley failed to articulate how <br>or why the entire transcript would qualify or explain the excerpts <br>offered by the government.  Therefore, the government contends <br>that the district court acted well within its discretion in denying <br>Conley's request. <br>  Under prevailing federal practice, objections to <br>evidentiary rulings must be reasonably specific in order to <br>preserve a right to appellate review.  See United States v. <br>Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) (citing United States <br>v. Walters, 904 F.2d 765, 769 (1st Cir. 1990)).  A litigant's <br>failure to sufficiently articulate the grounds for an objection <br>bars the litigant aggrieved by the ruling from raising more <br>particularized points for the first time on appeal.  See id.  In <br>an attempt to avoid waiver of his Rule 106 argument under this <br>general rule of practice, Conley now maintains that the relevancy <br>of particular portions of his grand jury transcript only became <br>apparent to him after the government's closing arguments. <br>  In his appellate brief, Conley points for the first time <br>to two specific portions of his grand jury transcript that he <br>claims should have been admitted into evidence under Rule 106.  <br>The first excerpt contains Conley's testimony that he was <br>interviewed twice by Internal Affairs ("IA") about the Cox <br>incident.  Conley argues that this portion should have been <br>admitted into evidence under Rule 106 in order to place in proper <br>context the portions submitted by the government in which Conley <br>testified that he never identified himself to homicide detectives <br>or the district attorney as the arresting officer on the scene on <br>the night of the Cox incident.  The government submitted this <br>evidence to suggest that Conley did not want to be identified as a <br>witness to the Cox incident.  The problem with Conley's Rule 106 <br>argument is two-fold.  First, it is clear from the opening <br>statements that Conley was aware that the government intended to <br>introduce this evidence and to advance this theory of guilt.  <br>Thus, we find no reason to make an exception to our general rule of <br>waiver.  Second, even if we did allow Conley to make this argument <br>for the first time on appeal, we are not convinced that the <br>district court's exclusion of this part of the transcript was <br>error.  We fail to see how testimony to the effect that Conley was <br>interviewed by Internal Affairs, and wrote a report of the incident <br>pursuant to an order by the IA investigators, adds to the <br>evidentiary value of the admitted excerpts.  In our view, a more <br>relevant portion of the transcript from a Rule 106 perspective was <br>Conley's explanation as to why he did not notify the homicide <br>investigators or the district attorney's office of the arrest, and <br>this portion appropriately was introduced into evidence. <br>  The second portion of his grand jury testimony that <br>Conley claims should have been admitted is testimony concerning <br>Conley's relationship with Officers Burgio and Williams.  At trial, <br>the government presented excerpts of Conley's grand jury testimony <br>in order to suggest that Conley lied about his involvement in the <br>Cox incident because he wanted to protect his friends, Officers <br>Burgio and Williams.  The government's submitted excerpts, however, <br>included Conley's testimony to the effect that Officer Burgio was <br>not a friend of Conley's, (See Tr. Vol. II at 246), and that <br>although Conley became acquainted with Officer Williams at the <br>police academy, he did not socialize or "go out for drinks" with <br>him.  (Tr. Vol. III at 10).  The inclusion of additional testimony <br>bearing on this issue was not necessary to place the government's <br>excerpts in proper context under Fed. R. Evid. 106. <br>  In making determinations as to the completeness of <br>proffered statements, the district court's judgment is entitled to <br>great respect.  See United States v. Houlihan, 92 F.3d 1271, 1283 <br>(1st Cir. 1996).  We conclude that the district court acted well <br>within its discretion in denying Conley's request that the entire <br>transcript of his grand jury testimony be admitted into evidence. <br>4.  The Jury's Request for a Ruler <br>  During jury deliberations, the district judge received a <br>note from the jury requesting a ruler.  Over Conley's objection, <br>the district judge granted the jury's request, and instructed the <br>jury that the ruler was only to be used on exhibits which contained <br>an approximate scale for measurement.  Conley contends that the <br>district judge's decision to provide the jury with a ruler violated <br>his right to confrontation under the Sixth Amendment to the United <br>States Constitution, and requires reversal of his conviction. <br>  At the outset we note our disagreement with the <br>government's characterization of a ruler as merely another generic <br>tool to aid a jury in examining exhibits.  A diagram based on an <br>approximate scale contains, by definition, imprecise distances and <br>dimensions.  Therefore, pursuant to the district judge's <br>instructions, the jury was using the ruler to obtain more precise <br>information from an exhibit that was imprecise.  The use of a ruler <br>under these circumstances is inherently different from the jury's <br>use of a magnifying glass to more clearly observe photographs or <br>fingerprints admitted into evidence.  See, e.g., United States  v. <br>George, 56 F.3d 1078, 1084 (9th Cir. 1995) (jury used magnifying <br>glass to examine fingerprint cards and gun); United States v. <br>Young, 814 F.2d 392, 396 (7th Cir. 1987) (jury used magnifying <br>glass to examine photographs). <br>  The weakness in Conley's argument, however, is that it <br>fails to address the root of the problem: the original admission of <br>the exhibit containing the approximate scale.  At trial, Conley <br>never objected to the admission of Exhibits 7 or 7A, nor does he <br>make such objection on appeal.  If, as Conley suggests, the <br>distances and special dimensions of the area at Woodruff Way were <br>critical to the government's charge that Conley must have seen Cox <br>as Conley pursued Brown, Conley should have made a contemporaneous <br>objection to the admission of such an imprecise depiction of the <br>crime scene. <br>  A district judge's decision to provide a jury with <br>requested material to aid in its examination of the evidence is <br>reviewed for abuse of discretion.  See United States v. Rengifo, <br>789 F.2d 975, 983 (1st Cir. 1986).  Under the circumstances of this <br>case, we cannot conclude that the district judge abused his <br>discretion in granting the jury's request for a ruler.  As the <br>district judge reasoned, once the diagram was admitted into <br>evidence, the jury's request for a ruler was both forseeable and <br>reasonable.  Moreover, even if the request had been denied, there <br>was nothing to prevent the jury from simply making its own, perhaps <br>even more inaccurate, ruler.  Therefore, we conclude that the <br>district judge acted within his discretion when he granted the <br>jury's request. <br>5.  Sentencing Issues <br>  Conley's main claim of sentencing error is that the <br>district court erred in calculating his base offense level by <br>cross-referencing to the sentencing guideline applicable to the <br>underlying offense of aggravated assault.  We review the district <br>court's factual determinations under the sentencing guidelines for <br>clear error.  See United States v. Nez, 146 F.3d 36, 40 (1st Cir. <br>1998).  However, we review the district court's construction of a <br>sentencing guideline and its application of the guideline to the <br>facts de novo.  See id. <br>  The Sentencing Guidelines generally provide a base <br>offense level of twelve for perjury and obstruction of justice.  <br>See U.S.S.G  2J1.2(a) & 2J1.3(a).  However, if the defendant <br>committed perjury "in respect to a criminal offense," or obstructed <br>"the investigation or prosecution of a criminal offense," the <br>Guidelines direct the district court to use a cross-reference and <br>sentence the defendant as an accessory after the fact "in respect <br>to that criminal offense."  U.S.S.G.  2J1.2(c)(1) & 2J1.3(c)(1).  <br>Pursuant to these provisions, the district court cross-referenced <br>to  2X3.1, the guideline applicable to those convicted of being <br>accessories after the fact.  Section 2X3.1(a) provides a base <br>offense level "6 levels lower than the offense level for the <br>underlying offense."  U.S.S.G.  2X3.1(a).  The district court <br>concluded that the "underlying offense" was the violation of <br>constitutional rights by the intentional use of excessive force by <br>police officers, in violation of 18 U.S.C.  241 & 242, and <br>referred to the applicable sentencing guideline found at  2H1.1.  <br>On appeal, Conley does not challenge this initial cross-reference <br>from  2X3.1(a), to the civil rights guideline found at  2H1.1.  <br>Rather, Conley challenges the district court's subsequent cross- <br>reference from  2H1.1(a)(1) to the sentencing guideline applicable <br>to the underlying offense of aggravated assault, found at  2A2.2. <br>  The crux of Conley's argument is that his acquittal on <br>Count Two of the indictment, which charged Conley with lying about <br>seeing Cox being beaten by Boston police officers, means that the  <br>underlying offense for which he is sentenced as an accessory after <br>the fact cannot include the intentional use of excessive force.  <br>Conley argues that because he was only convicted of lying about <br>seeing Cox chase the suspect to the fence and grab at him as he <br>scaled the fence, the offense for which he is sentenced as an <br>accessory after the fact should only include the other <br>constitutional deprivations alleged in the indictment: namely, the <br>failure to prevent the assault, and the failure to provide medical <br>care.  Because these offenses are not referenced by the guidelines <br>or by statute as separate underlying offenses, but rather are <br>subcategories of the civil rights offense, Conley contends that <br> 2H1.1(a)(3) -- and not  2H1.1(a)(1) -- should apply.  We <br>disagree. <br>  Conley's acquittal on Count Two has no bearing on what <br>offenses were under investigation when he testified before the <br>grand jury.  As the background section to the obstruction of <br>justice guideline indicates, the cross-reference to  2X3.1 (the <br>accessory after the fact guideline) is intended to provide an <br>enhanced offense level for the crime of obstruction of justice when <br>the obstruction is in respect to a particularly serious offense.  <br>See Commentary to U.S.S.G.  2J1.2(c)(1).  Consistent with this <br>purpose, the application of the cross-reference does not depend on <br>the defendant's actual conviction as an accessory after the fact to <br>the offense under investigation.  See United States v. Martnez, <br>106 F.3d 620, 621-22 (5th Cir. 1997);  United States v. Dickerson, <br>114 F.3d 464, 467 (4th Cir. 1997); United States v. Gay, 44 F.3d <br>93, 95 (2d Cir. 1994).  Indeed, application of this cross- <br>reference does not even depend on the defendant's specific <br>knowledge of the underlying offense: <br>    [A defendant's] lack of knowledge of the <br>  specific offenses under investigation is <br>  irrelevant.  Neither  2J1.2(c)(1) nor  2X3.1 <br>  requires such knowledge as a prerequisite to <br>  application of the offense level for the <br>  'underlying offense.'  All that is required is <br>  that the 'offense involved obstructing the <br>  investigation or prosecution of a criminal <br>  offense . . . .'   2J1.2(c)(1). [The <br>  defendant] knew there was a federal grand jury <br>  investigation into criminal offenses and that <br>  he knowingly and willfully attempted to <br>  obstruct it as the jury so found.  This is <br>  enough to trigger the cross-referencing <br>  provisions of the guidelines. <br> <br>United States v. McQueen, 86 F.3d 180, 184 (1st Cir. 1996).  Conley <br>knew even more than the defendant in McQueen.  Conley knew that the <br>grand jury was investigating the assault on Michael Cox by Boston <br>police officers, and the trial jury found that he knowingly and <br>willfully obstructed that investigation.  The fact that Conley was <br>acquitted on Count Two is irrelevant for cross-referencing <br>purposes. <br>  Conley further argues that the use of aggravated assault <br>as the "underlying offense" under  2H1.1(a)(1) is barred by the <br>plain language of the Commentary to this guideline.  The Commentary <br>to  2H1.1(a)(1) states: "'Offense guideline applicable to any <br>underlying offense' means the offense guideline applicable to any <br>conduct established by the offense of conviction that constitutes <br>an offense under federal, state, or local law."  Conley contends <br>that his offenses of conviction are perjury and obstruction of <br>justice, and that the only conduct established by these convictions <br>is that he lied before the grand jury about observing Cox chase the <br>suspect as he ran towards the fence.  As discussed supra, the <br>purpose of the cross-reference in both the perjury and obstruction <br>of justice guidelines is to measure the gravity of those offenses.  <br>We conclude that  2H1.1(a)(1) is similarly employed, and that the <br>sentencing court need not look exclusively to the offense of <br>conviction.  This conclusion makes logical sense.  As other courts <br>have observed, if the "underlying offense" was required to be the <br>offense of conviction, perjurers and obstructors of justice would <br>benefit from perjury or obstruction that successfully persuaded a <br>grand jury not to return an indictment.  See United States v. <br>Dickerson, 114 F.3d 464, 468 (4th Cir. 1997); McQueen, 86 F.3d at <br>183.  The Commentary on which Conley relies relates to the <br>substantive offenses involving individual rights.  These notes are <br>not relevant under the circumstances presented here because  2H1.1 <br>(a)(1) is being used simply as a formula for the perjury and <br>obstruction of justice offenses. <br>  Finally, Conley's argument ignores the specific finding <br>of the district judge that Conley <br>    observed through his senses of sight and <br>  hearing enough to believe that Cox was being <br>  struck by other police officers and that his <br>  answering in a misleading and incomplete way <br>  the questions that were asked before the grand <br>  jury was obstructing the grand jury's <br>  investigation to determine whether criminal <br>  conduct of Boston Police Officers on the scene <br>  had occurred. <br> <br>(Tr. of Disposition Hr'g at 6). We review such factual findings <br>only for clear error.  See Nez, 146 F.3d at 40.  Based on the <br>evidence presented at trial, see supra, this finding does not <br>constitute clear error.  Moreover, this finding further supports <br>the district court's cross-reference to the underlying offense of <br>aggravated assault. <br>  We next address Conley's objections to the district <br>court's application of specific offense characteristics under the <br>aggravated assault guideline.  In opposing these enhancements, <br>Conley repeats the argument that his acquittal on Count Two bars <br>the court from enhancing his offense level based on the specific <br>characteristics identified in the aggravated assault guideline.  <br>For the same reasons that we uphold the district court's cross- <br>reference to the underlying offense of aggravated assault, we <br>uphold the district court's application of the specific offense <br>characteristics provided for under the same guideline. <br>  Conley raises the same argument with respect to the <br>district court's application of a six level enhancement based on <br>the specific offense characteristic provided for under  2H1.1(b), <br>namely, that the underlying offense was committed under color of <br>law.  Again, for the same reasons that we uphold the district <br>court's initial cross-reference to  2H1.1(a), we uphold its <br>application of the six level enhancement pursuant to  2H1.1(b). <br>  Finally, Conley argues that the district court erred in <br>denying his request for a four level reduction based on his role as <br>a minimal participant in the underlying offenses.  See U.S.S.G. <br> 3B1.2(a).  In support of his request for such a reduction, Conley <br>argued that the relevant criminal activity was the aggravated <br>assault on Officer Cox.  The district court concluded, however, <br>that the relevant criminal activity for purposes of  3B1.2 was <br>Conley's perjury and obstruction of justice.  We agree with the <br>district court.  We reiterate that the district court's <br>characterization of the underlying offense as a civil rights <br>violation, and, more specifically, as aggravated assault, was for <br>the limited purpose of measuring the gravity of Conley's perjury <br>and obstruction of justice offenses.  For all other purposes, <br>Conley's offenses of conviction remain perjury and obstruction of <br>justice.  Clearly, the district court did not err in concluding <br>that Conley was not a "minimal participant" in these criminal <br>activities. <br>                            CONCLUSION <br>  Based on the foregoing, the defendant's conviction is <br>affirmed.</pre>

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