
USCA1 Opinion

	




                                                                                                     United States Court of Appeals                                For the First Circuit                                 ____________________            No. 97-1555                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JAMES A. CROCHIERE,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________                  Marc D. Padellaro, with whom Joseph W. Monahan, III  and                  _________________            ______________________            Mary Jane Walsh were on brief,for appellant.            _______________                  S.  Theodore Merritt,  Assistant United States Attorney,                  ____________________            with  whom Donald  K. Stern,  United States Attorney,  was on                       ________________            brief, for appellee.                                 ____________________                                  November 18, 1997                                 ____________________                  LYNCH,   Circuit  Judge.      James  A.   Crochiere,   a                  LYNCH,   Circuit  Judge.                           ______________            correctional officer at  the Worcester County Jail  and House            of  Correction,  was  indicted on  charges  of  violating and            conspiring  to  violate  the  civil  rights  of  a  pre-trial            detainee  at  the jail.    See  18  U.S.C.     2,  241,  242.                                       ___            Crochiere was charged with the  act of and conspiracy to pour            boiling water  on the groin  and upper thigh of  Jose Nieves,            who had  been arrested  on the charges  of murdering  a young            girl.  A jury found  Crochiere guilty of the conspiracy count            and acquitted him of the substantive count.                    Crochiere   makes  three   arguments  on   appeal.    He            challenges the district  court's denial of  his motion for  a            jury view  of the  scene of the  crime.   He contends  that a            portion  of the  district court's  jury  instructions on  the            conspiracy  count  was  erroneous in  that  the  instructions            charged  that no "overt  act" is required  under the criminal            civil rights  conspiracy statute, 18  U.S.C.   241.   He also            argues that the evidence  was insufficient to convict  him on            the conspiracy  count.  We affirm  and hold that 18  U.S.C.              241, the civil rights conspiracy statute, does not require an            overt act.                                           I.                    We state  the facts in the  light most favorable to  the            verdict.  See United  States v. Montas, 41 F.3d 775, 778 (1st                      ___ ______________    ______            Cir.  1994).  On  April 18, 1993, Jose  Nieves was brought to                                         -2-                                          2            the jail to await trial on charges that he murdered a  twelve            year old  girl.  Nieves,  a heroin addict who  was undergoing            detoxification, became  highly agitated  and unruly,  banging            his head  against the bars of his cell.   Nieves cut open his            forehead.   Several  correctional  officers, Crochiere  among            them, came  to Nieves's cell  to restrain him.   The officers            handcuffed  Nieves and strapped  him into a  restraint chair.            Nieves  strongly resisted; the officers placed a blanket over            Nieves's head to  prevent him from spitting.   The first time            the officers  placed Nieves  in the restraint  chair, he  was            able to free himself from the arm straps.  The second attempt            at  restraint  was  more  successful,  and  once  Nieves  was            securely in the chair he was no longer a threat to himself or            to the officers.                    Rodney Lambert  was another pre-trial  detainee; he  was            indicted   on  the  same  federal  civil  rights  charges  as            Crochiere.   He pled  guilty, cooperated with  the government            and testified against Crochiere.  His  cell was located three            cells down from Nieves's cell.  Lambert had a hot pot  in his            cell, and after Nieves was  restrained and the commotion died            down,  Lambert began  boiling  water  for  soup.    Crochiere            approached Lambert's  cell and  asked Lambert  if he  had any            salt.  Crochiere wanted  to rub salt  into the open wound  on            Nieves's forehead.  Lambert said that he did not, but offered            Crochiere  an alternative  weapon: a  cup  of boiling  water.                                         -3-                                          3            Crochiere initially declined the offer, but soon returned and            requested  the  boiling liquid.    Lambert  poured a  cup  of            steaming  water for  Crochiere, who took  the cup  and walked            toward Nieves's cell.  Moments  later, Nieves screamed out in            pain, exclaiming that "[t]hey burned my pee pee," and that he            was hurt.   Following these screams, another voice said, "Now            you know how the little girl felt."                    Among the government's witnesses who testified to  these            events were Michael Robichaud, a correctional officer on duty            on  the  evening  of  April  18, 1993;  Foimai  Tau,  a  Unit            Supervisor  on  duty  the same  evening;  and  Scott Croteau,            Anibal  Antuna, and Rodney Lambert, three inmates whose cells            were located in the same tier as Nieves's cell.                  Nieves complained  to Officer Robichaud  of pain  in his            groin.  Robichaud related this information to Lieutenant Tau,            the Unit Supervisor.  Lieutenant  Tau went to see Nieves, who            asked to see a nurse because someone had poured  hot water on            him.   Lieutenant Tau  summoned Nurse  Elaine Gustafson,  who            spoke with Nieves but, being at the end of her shift, refused            to examine him.  Nurse  Dorothy Hester, the supervising nurse            at  the jail,  did  examine  Nieves  the  following  morning.            Because Nieves told her  he had an injury in his  groin area,            she examined that area and observed a second-degree burn with            blisters.   The burn extended  down to his inner  thigh area,            and upwards to his testicles.                                         -4-                                          4                  On  April 20,  two days  after  the burning,  Nieves was            taken  to  Bridgewater  State  Hospital for  a  psychological            examination  as  to his  competence  to stand  trial  for the            charge  of murder.   A  correctional  officer at  Bridgewater            State conducted a routine strip search of Nieves and observed            blisters  and injury  in Nieves's  groin area.    Pursuant to            routine practice the officer photographed the injury, and the            photograph  was  later  sent, along  with  a  report,  to the            Worcester County Sheriff's Office.  Kevin   Foley,  Assistant            Deputy  Superintendent  of  the  Worcester  County  Sheriff's            Office, then  commendably initiated an  investigation of  the            burning.  Foley  requested reports regarding  Nieves's injury            from  several  individuals,  including  Crochiere,  Tau,  and            Gustafson.  All  of them denied that Nieves  had been burned,            or  that Nieves had complained of pain and of being burned by            a correctional officer.  The following year, around September            of  1994, the  Federal  Bureau  of  Investigations  began  an            investigation into  the events  surrounding Nieves's  injury,            which, in turn,  led to the prosecution of this  case.  Nurse            Gustafson and Supervisor Tau  eventually testified that  they            had previously reported  falsely on the  events of April  18,            1993, and stated that Nieves actually did complain of pain in            his groin  and told  them that he  had been  burned with  hot            water.                                        II.                                           -5-                                          5            Jury View            _________                  On the  second day  of trial, Crochiere  filed a  motion            for a jury view  of the lower left tier of cells at the jail,            the location of  these events.  Crochiere argued  that it was            only  by viewing  the tier  of  cells that  the jurors  could            properly  assess the  validity  of  the  statements  made  by            several  of the witnesses -- specifically inmates Croteau and            Lambert -- about  what they saw and heard on that night.  The            district judge initially  deferred the decision on  the view,            so that he could hear more of the evidence and "have a better            sense of whether  a view [would be]  important and worthwhile            in the context of the case."  The court ultimately denied the            view, reasoning that it would be "not just an unnecessary use            of  time, but actually potentially confusing and  misleading,            because neither Croteau  nor Lambert said that they could see            anybody  going into Nieves's  cell or  see anything  that was            going on in the cell."                  The decision to permit a view is entrusted to the  sound            discretion  of  the  trial  court.    See  United  States  v.                                                  ___  ______________            Pettiford, 962 F.2d 74, 76  (1st Cir. 1992); United States v.            _________                                    _____________            Passos-Paternina, 918 F.2d 979, 986 (1st Cir. 1990).  A court            ________________            generally acts within that discretion in denying a motion for            a view when there is sufficient evidence describing the scene            in  the form  of testimony,  diagrams, or  photographs.   See                                                                      ___            Pettiford, 962 F.2d at 76; United States v. Drougas, 748 F.2d            _________                  _____________    _______                                         -6-                                          6            8, 31  (1st Cir.  1984).  In  making this  determination, the            court may  consider such  factors as  the orderliness  of the            trial, whether the jury would be confused or misled,  whether            it  would be  time-consuming  or logistically  difficult, and            whether cross-examination  had been  permitted regarding  the            details of  the scene.   See id.; Pettiford, 962  F.2d at 76;                                     ___ ___  _________            Passos-Paternina, 918 F.2d at 986; Bundy v.  Dugger, 850 F.2d            ________________                   _____     ______            1402, 1422 (11th Cir. 1988).                   Crochiere  made a  non-frivolous argument in  support of            the view as to the events in Nieves's cell which underlay the            violation  of  civil   rights  charge,  as  opposed   to  the            conspiracy charge.  Inmates Croteau and Lambert did at  times            testify to having been able  to see beyond what was happening            in front of their own  cells.  For example, Lambert testified            that he could  see officers walking into and  out of Nieves s            cell, and that he could see Crochiere "in front of one of the            cells  to  [his] right."    The  evidence  in this  case  was            somewhat inconsistent, and the credibility of each  witness s            story as to what he saw and when he saw it was critical.  The            average juror has not seen a jail cell block, and  might well            have  difficulty understanding the layout and the ability (or            inability) of inmates  to see up and down  the corridor where            Nieves's  cell  was   located.    Crochiere  contended   that            photographs  and charts could not  do adequate justice to the            layout and  spacial  arrangements of  the  cell block.    Cf.                                                                      ___                                         -7-                                          7            Pettiford, 962  F.2d at  76 (upholding denial  of view  where            _________            view would not have provided  clearer portrayal of scene than            photographs did).                  It  is also  true, as  the  district judge  noted,  that            neither Croteau  nor Lambert  testified that  they could  see            into Nieves's  cell.  Most  of the inmates' testimony  was of            what they heard, and what  they saw happen in front  of their            own cells.   A view would  not have helped to  discredit this            testimony.  Additionally, the defendant had ample opportunity            to  cross-examine the various  government witnesses  on their            ability to perceive  what they claimed to see.   The question            of  the view was  not an easy  one, and the  district judge's            decision was considered.                  In  light of  the  acquittal  on  the substantive  civil            rights charge,  we need  not decide  the question of  whether            there was  an abuse of discretion  in denying the view.   Any            error Crochiere may  claim in this ruling was  harmless.  "In            the usual  case, a non-constitutional  evidentiary error will            be  treated as  harmless if  it is  highly probable  that the            error did not contribute to  the verdict."  See United States                                                        ___ _____________            v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997).  The government               ____            bears the burden of persuasion  in a harmless error analysis.            See id.        The  view   was  relevant  primarily   to  the            ___ ___            substantive    242 Count,  of which Crochiere  was acquitted,            and not to the conspiracy count.  The  evidence was more than                                         -8-                                          8            adequate  to support the conspiracy count that Crochiere took            boiling water  from Lambert after  saying he wanted a  way to            hurt Nieves.  View or  no view, Lambert plainly was competent            to  testify about what he did in his own cell and what he and            Crochiere said there.  Inmate Croteau also testified  that he            saw  Crochiere  walk  past  his  cell  in  the  direction  of            Lambert's cell, which was directly  to the left of  Croteau's            cell.   Croteau stated  that he then  heard Crochiere  say to            Lambert,  "Can  I  get  some  of  that?"  and  then  observed            Crochiere walk past Croteau's cell again, in the direction of            Nieves's cell, this  time carrying a cup  of steaming liquid.            A view  would not  have undercut any  of this  testimony, all            directly relevant to the conspiracy count.                  Crochiere  argues that  the  view  was  relevant to  the            conspiracy   count   because  it   directly   implicated  the            witnesses' credibility.  Although a view might  have had some            indirect   impact  on  the   jury's  assessment   of  witness            credibility,  Crochiere had  ample  opportunity to,  and did,            impeach  the witnesses' credibility  in a variety  of ways at            trial.  The  jury nevertheless chose to  believe the evidence            supporting the  conspiracy count, and a view  was unlikely to            have altered this outcome.            Jury Instructions:  Overt Acts            ______________________________                  Crochiere argues  that the district court gave erroneous            jury  instructions on the  elements of  a conspiracy  under                                           -9-                                          9            241, because  the court  stated that the  government was  not            required  to  prove   the  existence  of  an   overt  act  in            furtherance of the conspiracy.  Crochiere did not submit  any            proposed  instructions on    241,  nor did  he object  to the            absence   of  an  overt  act  instruction  when  specifically            questioned on  this issue  by the district  judge.   In these            circumstances,  the standard of  review is plain  error.  See                                                                      ___            United States v. Alzanki, 54  F.3d 994, 1003 (1st Cir. 1995).            _____________    _______            Under  this  standard,  the burden  rests  with  Crochiere to            establish that "the  error was 'clear,' in the  sense that it            was  'obvious,' that  it  affected 'substantial  rights,' and            that  failure to  vacate [the conviction]  would result  in a            'miscarriage  of justice.'"   Id.  (citing  United States  v.                                          ___           _____________            Olano, 507 U.S. 725, 731-38 (1993)).              _____                  There was no error, plain or otherwise,  in Judge Wolf's            instructions to the jury.  Section 241 makes it unlawful for                   two  or  more  persons  [to]  conspire to  injure,                  oppress, threaten, or intimidate any person in any                  State,  Territory,  Commonwealth,  Possession,  or                  District  in the free exercise or enjoyment of any                  right   or  privilege   secured  to  him   by  the                  Constitution  or  laws of  the  United  States, or                  because of his having so exercised the same. . . .            18 U.S.C.   241.                  The question  whether   241 requires  proof of an  overt            act is an  issue that the Supreme Court  has not specifically            addressed.   The Circuits have expressed conflicting views on            the question.  The Ninth Circuit has held that   241 does not                                         -10-                                          10            require  proof  of  an  overt  act.   See  United  States  v.                                                  ___  ______________            Skillman, 922 F.2d 1370, 1375-76  (9th Cir. 1991).  The Fifth            ________            Circuit has inconsistently  stated both that    241 does  not            require an overt  act, see United States v.  Morado, 454 F.2d                                   ___ _____________     ______            167, 169 (5th  Cir. 1972), and that   241  does require proof            of an overt  act, see United States v. Greer,  939 F.2d 1076,                              ___ _____________    _____            1099  (5th Cir. 1991);  United States  v. McKenzie,  768 F.2d                                    _____________     ________            602, 606 (5th  Cir. 1985); United States v.  Kimble, 719 F.2d                                       _____________     ______            1253, 1256 (5th  Cir. 1983).   In none of  the Fifth  Circuit            cases, however, was the question a central issue in the case.            The Sixth Circuit has stated, also in dictum, that   241 does            require proof of  an overt act.  See  United States v. Brown,                                             ___  _____________    _____            49 F.3d 1162, 1165 (6th Cir. 1995).                  This  Circuit  has  never  decided  the  question.   The            Supreme Court case  of United States v. Shabani,  513 U.S. 10                                   _____________    _______            (1994), we think,  requires a holding that    241 contains no            overt act  requirement.   In Shabani,  the  Court found  that                                         _______            there was no overt act  requirement where the language of the            drug  conspiracy statute,  there 21  U.S.C.    846,1  did not            require  proof  of  an  overt  act, and  the  common  law  of            conspiracy  at the  time  the  statute  was enacted  did  not                                        ____________________          1.  21 U.S.C.   846 provides:                  Any person who attempts or conspires to commit any                  offense  defined  in   this  subchapter  shall  be                  subject to  the same penalties as those prescribed                  for the offense,  the commission of which  was the                  object of the attempt or conspiracy.                                         -11-                                          11            require an  overt act.   Accord United  States v.  Paiva, 892                                     ______ ______________     _____            F.2d 148, 155 (1st  Cir. 1989).  The Supreme Court noted that            the language of  the statute does not require  "that an overt            act be  committed to further  the conspiracy, and  [the Court            has] not  inferred  such  a  requirement  from  congressional            silence in other  conspiracy statutes."  Shabani, 513 U.S. at                                                     _______            13 (citing Nash v. United States,  229 U.S. 373, 378  (1913),                       ____    _____________            holding   that  no  overt  act  is  required  for  conspiracy            liability under the Sherman Act, and Singer v. United States,                                                 ______    _____________            323  U.S. 338,  340  (1945),  holding that  no  overt act  is            required for conspiracy liability under the Selective Service            Act).    "Nash and  Singer  follow the  settled  principle of                      ____      ______            statutory  construction  that, absent  contrary  indications,            Congress  intends to  adopt  the  common  law  definition  of            statutory terms."  Shabani,  513 U.S. at 13.   And, the Court                               _______            continued, "the common law understanding  of conspiracy 'does            not  make  the  doing  of  any  act  other  than the  act  of            conspiring a condition of liability.'"  Id. at 13-14 (quoting                                                    ___            Nash, 229 U.S. at 378).2              ____                  The  same analysis  must apply  to a  construction of               241:  absent a showing of legislative intent to the contrary,            we  assume that  Congress intended  to adopt  the common  law                                        ____________________          2.  In  response to  Shabani's  argument that  the  law does  not          punish  criminal  thoughts,   the  Court   replied  that   "[t]he          prohibition against criminal conspiracy, however, does not punish          mere thought; the criminal agreement itself is the actus reus . .          . ."  Shabani, 813 U.S. at 16.                _______                                         -12-                                          12            understanding of conspiracy when it used the word "conspire."            The legislative history of    241 reveals no contrary intent,            and at common law "it was neither necessary to aver nor prove            an overt  act in furtherance  of the conspiracy."   Bannon v.                                                                ______            United  States, 156 U.S. 464, 468  (1895), quoted in Shabani,            ______________                             ______ __ _______            513 U.S. at 14.                  In Shabani,  the Court compared the language of the drug                     _______            conspiracy  statute,  which  contains no  express  overt  act            requirement,  with  the language  of  the  general conspiracy            statute,  18 U.S.C.    371,3  which  does contain  an express            overt  act requirement.    The  Court  found  this  dichotomy            "instructive," noting  that "[i]n  light  of this  additional            element in  the general conspiracy statute, Congress' silence            in   846  speaks volumes.  After all,  the general conspiracy            statute preceded  and presumably  provided the  framework for            the more  specific drug  conspiracy statute."   Shabani,  513                                                            _______            U.S. at 14.                    The general  conspiracy statute, 18  U.S.C.    371, with            its   explicit  overt  act  requirement,  also  preceded  the                                        ____________________          3.  18 U.S.C.   371 provides, in relevant part:                  If two or  more persons conspire either  to commit                  any offense against the United States . . . or any                  agency thereof in  any manner or for  any purpose,                  and  one or  more of  such persons  do any  act to                                                      ______________                  effect the object  of the  conspiracy, each  shall                  _____________________________________                  [be subject to criminal penalties].          (emphasis added)                                         -13-                                          13            enactment of     241.   The  general conspiracy  statute  was            originally enacted  by Congress in  1867, 14 Stat.  484, Add.            25,  and  remains  essentially unchanged  today.    The civil            rights conspiracy  statute, 18 U.S.C.    241, was  enacted in            1870, "as  part of what came  to be known as  the Enforcement            Act of  1870,"  United  States v.  Price, 383  U.S. 787,  801                            ______________     _____            (1966) (footnote omitted), and  also remains in substantially            the same  form today.  By  the time it enacted what  is now              241,  Congress had,  when it  wanted to  import an  overt act            requirement, made it explicit.   But Congress chose not to do            so in    241.   We  recognize, but  are not  persuaded by,  a            contrary  argument that Congress, having placed the overt act            requirement  in  the  general  conspiracy  statute,  felt  it            unnecessary  to  place  such language  in  future  conspiracy            statutes although it fully intended the overt act requirement            to apply.   This argument cannot be squared  with the Shabini                                                                  _______            Court's interpretation of congressional silence.                   Our conclusion that Congress did  not intend to  require            an overt  act in    241 is  bolstered by Supreme  Court cases            that have  emphasized the breadth of     241 and 242, and the            prosecutorial force that Congress intended to give them.   In            Price, the  Court discussed  the history of     241  and 242.            _____            The Court noted that the statutes                   must  be viewed against the events and passions of                  the time.  The Civil  War had ended in April 1865.                  Relations   between   Negroes  and   whites   were                  increasingly  turbulent.     Congress   had  taken                                         -14-                                          14                  control  of  the  entire governmental  process  in                  former Confederate States.                         . . . .                        Within  the  Congress pressures  mounted  in                  the period between the end of the war and 1870 for                  drastic  measures.  . .  .  On May  31,  1870, the                  Enforcement  Act  of  1870  [current     241]  was                  enacted.                          In  this context,  it is  hardly conceivable                  that Congress  intended   241  to apply only  to a                  narrow  and  relatively  unimportant  category  of                  rights.            Id.  at 803-05  (footnotes  omitted).    Although  the  Price            ___                                                     _____            Court's focus was on  the rights that   241  protects and not            on the existence  of an overt act requirement, its discussion            provides  strong   support  for  the  proposition   that  the            Reconstruction Era  Congress did not  intend   241 to  have a            narrow  scope.    Given this  backdrop,  it  is difficult  to            imagine that  Congress could  have intended  a definition  of            conspiracy in    241  that was narrower  than the  common law                                           ________            definition  of the  term.   Were we  to judicially  import on            overt  act requirement,  we would  be narrowing  the type  of            activity that  Congress intended to  reach when it  enacted              241.  This we are not authorized to do.            Sufficiency of the Evidence            ___________________________                  Crochiere's final challenge  to his conviction  rests on            the contentions that  his conviction on the  conspiracy count            cannot stand because it is inconsistent with the acquittal on            the substantive count, and that  in any event the evidence on                                         -15-                                          15            the  conspiracy count  was  insufficient  for  a  finding  of            guilty.  We reject these claims.                     Even  if  the  verdicts were  inconsistent,  the Supreme            Court  and this court  have clearly stated  that inconsistent            verdicts are no  basis for setting aside a  conviction.4  See                                                                      ___            United  States v. Powell, 469 U.S. 57 (1984) (reaffirming the            ______________    ______            rule  in Dunn  v. United  States, 284  U.S. 390  (1932), that                     ____     ______________            inconsistency  of verdicts  is  not a  basis  for vacating  a            conviction,  and  rejecting  any  exceptions  to  the  rule);            United  States v.  Lopez, 944  F.2d  33, 41  (1st Cir.  1991)            ______________     _____            (noting  that  "the Supreme  Court  has  made it  clear  that            verdict inconsistency in itself is not a sufficient basis for            vacating a conviction.") (citing Powell, 469 U.S. 57).                                             ______                  In  any  event,  the  verdicts  in  this  case  are  not            inconsistent  because the elements of  the two Counts are not            identical.     Count  One  of  the  indictment  charged  that            Crochiere  conspired with Lambert  to violate  Nieves's civil                       _________            rights, while Count Two charged Crochiere with the actual act            of violation  --  the pouring  of  the scalding  liquid  onto            Nieves's  lap.   A guilty  verdict  on Count  Two would  have            required the  jury to find that Crochiere  himself poured the                                        ____________________          4.  Crochiere cites a Northern District of  Illinois case for the          proposition  that inconsistent verdicts may require setting aside          a conviction  where  those verdicts  are  based on  charges  with          "virtually identical elements."   United States v.  Infelise, 813                                            _____________     ________          F.  Supp. 599  (N.D. Ill.  1993).   That case is  not controlling          authority.                                         -16-                                          16            hot   liquid  on   Nieves,  and   that  Crochiere's   actions            "result[ed] in  bodily injury" to  Nieves.  The jury  was not            required to find either of these elements beyond a reasonable            doubt to  convict on  the conspiracy count  alone.   The jury            could  easily  have  concluded  that  there  was  not  enough            evidence  to prove beyond  a reasonable doubt  that Crochiere            was  the individual who  actually poured the  scalding liquid            onto  Nieves's  lap.    There  was  no  eyewitness  testimony            regarding this act.  On  the other hand, there was eyewitness            testimony on the conspiracy count.  Lambert testified that he            gave the  cup of steaming  water to Crochiere  intending that            the water be  used to hurt Nieves.   There was ample evidence            from which the jury could have concluded that Crochiere was a            willing participant, and harbored the same unlawful intent to            punish  Nieves.  Crochiere  had previously asked  Lambert for            salt  to  rub  into  Nieves's  bleeding  forehead.    Croteau            testified that he heard Crochiere  say "give me some of that"            to  Lambert, and  that moments  later  Crochiere walked  past            Croteau's cell with a cup  of steaming water in the direction            of  Nieves's cell.    Robichaud testified  that  he saw  this            exchange occur between Lambert and Crochiere.                    In  sum,  a  jury  could  easily  have  found sufficient            evidence  for a  conviction  on  the  conspiracy  count,  and            insufficient evidence  for  a conviction  on the  substantive            count,  without  these  different  outcomes  being  logically                                         -17-                                          17            inconsistent.   This  analysis also  disposes of  Crochiere's            claim that his motion for a judgment of acquittal should have            been granted  by the district court because  the evidence was            insufficient to support a finding of guilty on the conspiracy            count.  See United States v. Lopez, 944 F.2d 33, 39 (1st Cir.                    ___ _____________    _____            1991) (denial of  motion for judgment  of acquittal based  on            insufficiency  of evidence  claim is  subject to  deferential            review).                      Affirmed.                  ________                                         -18-                                          18
