
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2215 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          GIOVANNI LARA, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br> <br> <br>No. 97-2223 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                        GEORGE SEPULVEDA, <br> <br>                      Defendant, Appellant. <br> <br>                      _____________________ <br> <br> <br>No. 97-2224 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          TERRENCE BOYD, <br> <br>                      Defendant, Appellant. <br>                      ______________________ <br> <br>No. 97-2225 <br> <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          SHARIFF ROMAN, <br> <br>                      Defendant, Appellant. <br>                      _____________________ <br> <br> <br>No. 97-2226 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          GEORGE PERRY, <br> <br>                      Defendant, Appellant. <br>                      _____________________ <br> <br> <br>No. 97-2227 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          ERYN VASQUEZ, <br> <br>                      Defendant, Appellant. <br>                      _____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>             [Hon. Mary M. Lisi, U.S. District Judge] <br> <br> <br> <br> <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                Kravitch,* Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br> <br>     Valeriano Diviacchi, with whom Diviacchi Law Office was on <br>brief, for appellant Lara. <br>     Malcolm J. Barach for appellant Sepulveda. <br>     Larry J. Ritchie, with whom Edward L. Gerstein was on brief, <br>for appellant Boyd. <br>     R. Scott Miller, Jr. for appellant Roman. <br>     R. Scott Miller, Jr.  with whom Richard J. Shea was  on brief, <br>for appellant Perry. <br>     Pedro A. Jaile for appellant Vasquez. <br>     Lisa Simotas, Attorney, Dep't of Justice, with whom Margaret <br>E. Curran, United States Attorney, Gerard B. Sullivan, and Terrence <br>P. Donnelly, Assistant United States Attorneys, were on brief, for <br>the United States. <br> <br> <br> <br> <br>June 30, 1999 <br> <br> <br> <br>__________ <br>*Of the Eleventh Circuit, sitting by designation.

  SELYA, Circuit Judge.  A federal grand jury indicted a <br>coterie of defendants, including the six appellants (Giovanni "King <br>G" Lara, George "King Paradise" Sepulveda, Terrence "King Bullet" <br>Boyd, Shariff "King Biz" Roman, George "King Animal" Perry, and <br>Eryn "King Guy" Vasquez) for a multiplicity of crimes arising out <br>of their involvement in the Providence chapter of the Almighty <br>Latin King Nation.  Following a 44-day trial, each appellant was <br>convicted on one or more of the following charges:  racketeering, <br>18 U.S.C.  1962(c); conspiracy to commit racketeering, id.  <br>1962(d); violent crime in aid of racketeering (including two <br>murders and two attempted murders), id.  1959(a)(1) & (5); <br>carjacking, id.  2119(3); witness intimidation, id.  1512(b); use <br>or carriage of a firearm during a crime of violence, id.  924(c); <br>and being a felon in possession of a firearm, id.  922(g).  The <br>district court sentenced five of the appellants to life <br>imprisonment and the sixth, Vasquez, to 100 months in prison.  <br>These appeals followed.  We affirm. <br>I.  BACKGROUND <br>  We offer a thumbnail sketch of the interrelationship <br>between the appellants and the Latin Kings, taking the information <br>contained in the record in the light most congenial to the jury's <br>verdict.  See United States v. Houlihan, 92 F.3d 1271, 1277 (1st <br>Cir. 1996).  We eschew an exposition of the other evidence, <br>preferring to discuss that evidence in the body of the opinion as <br>it pertains to our consideration of particular points raised by the <br>appellants. <br>  The Latin Kings originated in Chicago in the 1940s.  Over <br>time, the street gang's influence spread to other venues.  The <br>movement  migrated east to Providence in the early 1990s.  Though <br>some chapters  of the Latin Kings, called Charter Nations, require <br>Hispanic descent as a condition of membership, others (like the <br>Providence chapter) allow persons of all races and ethnicities to <br>join. <br>  Members of the Latin Kings signal their affiliation by <br>sporting beads and other accouterments (including tattoos) in the <br>gang's colors   black and gold.  They pay dues, attend weekly <br>meetings, and undertake "missions" (a euphemism that covers an <br>array of activities ranging from running errands to committing <br>violent crimes) when directed by gang leaders.  Respect and <br>security rank among the gang's paramount concerns:  the Latin Kings <br>routinely discipline members for disrespectful behavior or for <br>discussing Latin King business with outsiders.  Discipline runs a <br>lengthy gamut from the "silent treatment" (suspension of all <br>communications with other gang members), to revocation of drug use <br>privileges, to a "bounce" (a time-controlled beating limited to <br>certain areas of the body), to death. <br>  The Almighty Latin King Nation is a hierarchical <br>organization, and each of the appellants held one or more <br>leadership positions within the Providence chapter.  Sepulveda <br>served as the group's president (sometimes called "Inca").  Boyd <br>served as the vice-president (sometimes called "Cacique"), and <br>later succeeded Sepulveda as president.  Roman served as the chief <br>enforcer (a position previously held by Lara and subsequently held <br>by Perry), and replaced Boyd as vice-president.  Vasquez functioned <br>as the group's philosopher and then graduated to the post of <br>investigator. <br>  Against this backdrop, we proceed to survey the <br>appellants' assignments of error.  We start with two issues <br>pertaining to jury selection and then treat three of the trial <br>court's evidentiary rulings.  At that juncture, we address a series <br>of Rule 29 claims.  Finally, we tackle a perceived problem with the <br>jury instructions.  To the extent that the appellants mount other <br>claims, we reject them out of hand, without elaboration. <br>II.  JURY SELECTION ISSUES <br>  Most of the appellants join in two challenges related to <br>jury selection:  all save Perry argue that the jury pool was not <br>composed of a fair cross-section of the community, and all <br>calumnize the prosecution's use of a peremptory challenge to strike <br>an African-American prospective juror.  We find no merit in either <br>of these assigned errors. <br>                A.  The Fair Cross-Section Claim. <br>  The Constitution affords a criminal defendant the right <br>to a trial "by an impartial jury of the State and district wherein <br>the crime shall have been committed."  U.S. Const. amend. VI.  This <br>constitutional command requires that juries be selected from a <br>representative cross-section of the community.  See Duren v. <br>Missouri, 439 U.S. 357, 358-59, 363-64 (1979); Taylor v. Louisiana, <br>419 U.S. 522, 528 (1975).  Congress codified that requirement in <br>the Jury Selection and Service Act, (JSSA), 28 U.S.C.  1861.  The <br>appellants assert that the venires from which the district court <br>selected both their grand and petit juries defied this imperative.  <br>We do not agree. <br>  The appellants base their assertion on Rhode Island's <br>failure to comply with the National Voter Registration Act (NVRA), <br>42 U.S.C.  1973gg to 1973gg-10 (1994).  This statute, known <br>colloquially as the motor voter law, took effect in Rhode Island on <br>January 1, 1995.  It requires states to accept voter registration <br>applications in tandem with applications for drivers' licences and <br>other permits, and to establish procedures to facilitate that <br>process.  See id.  1973gg-2(a), 5(a).  Rhode Island has conceded <br>that it did not fully comply with the NVRA.  See League of Women <br>Voters v. Rhode Island Bd. of Elections, No. 96-442ML (D.R.I. Sept. <br>12, 1996) (consent decree).  Because the District of Rhode Island <br>derives its jury wheel from the state's voter registration lists, <br>see In re Amended Juror Selection Plan, Misc. No. 75-209 (D.R.I. <br>Oct. 6, 1993), the appellants claim that this noncompliance <br>rendered the District's jury venires unrepresentative and <br>transgressed both the Sixth Amendment and the JSSA. <br>  This claim is fully preserved with respect to the five <br>appellants who proffer it here.  Although only Sepulveda and Boyd <br>moved to dismiss the indictment on this basis, the district court <br>permitted Lara, Roman, and Vasquez to adopt Sepulveda's and Boyd's <br>position. <br>  Though preserved, the claim is unavailing.  In order to <br>establish a fair cross-section violation under either the Sixth <br>Amendment or the JSSA, a criminal defendant must make a tripartite <br>showing comprising cognizability (i.e., that the group alleged to <br>be excluded is a distinctive group), underrepresentation (i.e., <br>that the group is not fairly and reasonably represented in the <br>venires from which juries are selected), and systematic exclusion <br>(i.e., that the discerned underrepresentation is due to the group's <br>systematic exclusion from the jury-selection process).  See Duren, <br>439 U.S. at 364; United States v. Royal, ___ F.3d ___, ___ (1st <br>Cir. 1999) [1999 WL 179003, at *4].  Assuming, arguendo, that the <br>appellants have made the first of these three showings, they <br>plainly have failed to satisfy either the second or third part of <br>the test.  Because the Duren test is conjunctive   the proponent of <br>a fair cross-section claim must satisfy all three of its elements <br>  either of these failings suffices to defeat the instant claims. <br>  We start with underrepresentation.  A showing of <br>underrepresentation must be predicated on more than mere guesswork.  <br>Such a showing requires competent proof (usually statistical in <br>nature).  See, e.g., Duren, 439 U.S. at 364-65; United States v. <br>Pion, 25 F.3d 18, 22-23 (1st Cir. 1994); see also United States v. <br>Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984) (considering the <br>statistical methodologies that might be used to determine <br>underrepresentation and selecting the absolute disparity method).  <br>The single supporting document filed in the district court in <br>connection with the appellants' motions to dismiss was an affidavit <br>attesting to the legislative history and purposes of the NVRA, and <br>the genesis of the consent decree.  This affidavit does not supply <br>any foundation for a finding that the representation of Hispanic <br>venirepersons in the District was unfair, unreasonable, or in any <br>way disproportionate to their numbers in the community. <br>  A successful fair cross-section claim also requires <br>competent proof of the systematic nature of the exclusionary <br>mechanisms leading to the underrepresentation.  See Duren, 439 U.S. <br>at 366-67; Royal, ___ F.3d at ___ [1999 WL 179003, at *4].  The <br>supporting affidavit in this case offers no reason to believe that <br>any systematic exclusion of Hispanics occurred in the selection <br>process, let alone that it caused any material underrepresentation.  <br>The NVRA is addressed to heightening overall popular participation <br>in federal elections, as well as to increasing voter registration <br>by members of racial minorities.  See 42 U.S.C.  1973gg.  The <br>naked fact of Rhode Island's noncompliance with the statute <br>provides no insight into whether voter registration lists (and, <br>therefore, the jury wheel compiled from those lists) were skewed <br>for or against minorities if skewed at all.  Since the appellants' <br>proffer does not identify any systemic shortcoming or operational <br>deficiency that would tend to lessen Hispanic representation in the <br>master jury wheel disproportionately, it does not satisfy the third <br>part of the Duren test.  See Pion, 25 F.3d at 22-23. <br>  It follows inexorably from what we have said that the <br>district court did not err in rejecting the pretrial motions to <br>dismiss the indictment for want of a fair cross-section. <br>                    B.  The Batson Challenge. <br>  The appellants unanimously claim that the prosecution <br>impermissibly used a peremptory challenge to banish a prospective <br>juror, Bruce King, because of his race.  We rehearse the events <br>that undergird this complaint. <br>  Relatively late in the voir dire process, King, a black <br>male, was tentatively seated.  The district judge, the prosecutor, <br>and several defense attorneys proceeded to question him.  <br>Sepulveda's lawyer noted that the evidence would include allusions <br>to racial epithets and mention of the fact that many Latin King <br>chapters did not welcome African Americans.  He then asked whether <br>such testimony might affect King's ability to decide the case.  <br>King replied, "I believe I can be a fair and impartial juror under <br>any circumstance."  Upon hearing this declaration, Perry began to <br>applaud.  The court silenced him and the voir dire continued.  When <br>the defense team had completed its interrogation of King, the <br>prosecutor asked that Perry's effusion be placed on the record.  He <br>then queried King as to whether the applause made him <br>uncomfortable.  King responded in the negative, explaining that he <br>did not know why Perry felt impelled to clap. <br>  Because the prosecutor's questions suggested a concern <br>over whether the incident would jeopardize King's ability to render <br>an impartial verdict, Roman's counsel requested an opportunity to <br>discuss the matter.  He debunked the notion that King had been <br>compromised and emphasized that King was one of very few potential <br>black jurors who might be eligible for service in the case    <br>perhaps the only one.  Judge Lisi permitted King to leave for the <br>day and reprimanded Perry, warning him that another outburst would <br>result in his removal from the courtroom.  The dialogue between the <br>court and counsel then resumed.  The prosecutor summarized his <br>position and speculated that "[i]f we can find other black jurors <br>in the panel to sit," he might use a peremptory strike to eject <br>King from the jury.  The day's proceedings ended without resolving <br>the issue of King's continued service. <br>  The next day, the prosecutor moved to excuse King for <br>cause and the parties argued the point.  The district judge took <br>the matter under advisement overnight.  She ultimately denied the <br>motion, explaining: <br>    On the record, that is, taking Mr. King's <br>  statements at face value as I do, I do not <br>  believe that cause exists to remove him from <br>  this panel.  . . .  [I]t appears from what I <br>  observed here in the courtroom and what <br>  occurred on the record afterwards with the <br>  colloquy between the Government and Mr. King, <br>  that Mr. King was not affected by Mr. Perry's <br>  action. <br> <br>  When the time arrived for the parties to exercise their <br>peremptory strikes, the government challenged King.  The appellants <br>branded this strike race-based and violative of the Equal <br>Protection Clause.  After hearing argument, the district court <br>overruled their objections.  Because this decision resolves a mixed <br>question of law and fact that is peculiarly fact-sensitive, we <br>review it for clear error.  See United States v. Bergodere, 40 F.3d <br>512, 516 (1st Cir. 1994). <br>  It is by now common ground that race is an <br>unconstitutional proxy for juror competence and impartiality, and, <br>therefore, that criminal defendants have an equal protection right <br>to jury selection procedures that are free from racial biases.  See <br>Powers v. Ohio, 499 U.S. 400, 404 (1991); Batson v. Kentucky, 476 <br>U.S. 79, 89 (1986); Bergodere, 40 F.3d at 515.  We have directed <br>the use of a three-part framework to aid in assessing the validity <br>of an allegation that the prosecution stooped to employ a race- <br>based peremptory strike.  See Bergodere, 40 F.3d at 515 (citing, <br>inter alia, Batson, 476 U.S. at 96-98).  This framework envisions <br>that: <br>    [T]he defendant must make a prima facie <br>  showing of discrimination in the prosecutor's <br>  launching of the strike.  If the defendant <br>  fulfills this requirement by establishing, <br>  say, a prima facie case of a racially driven <br>  impetus, then the prosecutor must proffer a <br>  race-neutral explanation for having challenged <br>  the juror. . . .  If the prosecutor complies, <br>  then, at the third and final stage, the <br>  district court must decide whether the <br>  defendant has carried the ultimate burden of <br>  proving that the strike constituted purposeful <br>  discrimination on the basis of race. <br> <br>Id. (citations and footnote omitted).  In deploying this framework, <br>the prosecutor's second-step burden of proffering a race-neutral <br>explanation for the strike "is merely a burden of production, not <br>a burden of persuasion," and the defendant retains the devoir of <br>persuasion throughout the course of the inquiry.  Id. <br>  In this case, we can truncate the usual inquiry.  In the <br>district court, as here, the government tacitly acknowledged that <br>the defendants had (or could have) offered a prima facie showing <br>that the strike appeared discriminatory.  Thus, the first step of <br>the pavane need not detain us.  See Hernandez v. New York, 500 U.S. <br>352, 359 (1991). <br>  At the second step, the government must advance a race- <br>neutral explanation for its peremptory challenge.  In an effort to <br>meet this requirement, the prosecutor pointed to Perry's applause, <br>theorizing that Perry might have been trying either to create an <br>affinity with King or to intimidate him.  In either event, the <br>prosecutor stated, he feared that King's impartiality would wane, <br>particularly after King learned of the atrocities that the <br>government ascribed to Perry and his confederates.  Although the <br>appellants contended that this explanation was bogus, the district <br>judge accepted it.  King was excused, and the empanelment <br>continued.  When sworn, the jury included one juror who described <br>himself as Mexican and one who appeared non-Caucasian (but from <br>whom no racial information was elicited). <br>  We discern no clear error in Judge Lisi's ruling.  In <br>order to meet the second-step requirement, a prosecutor's <br>explanation need only be unrelated to race on its face.  At this <br>point, neither the persuasiveness of the explanation nor the <br>credibility of the prosecutor is at issue.  See Purkett v. Elem, <br>514 U.S. 765, 768-69 (1995) (per curiam); Hernandez, 500 U.S. at <br>360.  Perry's clearly inappropriate courtroom behavior and its <br>potential effect on King's ability to serve as a juror are in no <br>way related to race, and, thus, the proffered reason crosses this <br>modest threshold.  See, e.g., Purkett, 514 U.S. at 769 (finding <br>prosecutor's explanation that strikes of black jurors were based on <br>beards and long, unkempt hair to be race-neutral for purposes of <br>the second Batson way station). <br>  This leaves the third, and final, determination:  whether <br>the appellants have proven that the strike constituted racial <br>discrimination.  This decision boils down to whether the appellants <br>have convinced the district court that the race-neutral explanation <br>furnished by the government rings hollow.  Because the question is <br>intensely fact-driven and the answer often pivots on credibility, <br>appellate tribunals must scrutinize the trial court's response <br>under a highly deferential glass.  See Hernandez, 500 U.S. at 364- <br>65; Batson, 476 U.S. at 98 n.21. <br>  In this case, the trier credited the government's <br>explanation: <br>    I have heard the explanation of the Government <br>  and I have observed [the prosecutor's] <br>  reaction to Mr. Perry's applause.  And I <br>  cannot say that [the prosecutor's] challenge <br>  here is based on race.  [His] challenge is <br>  based, as he says, on conduct and on the <br>  concern that he has   and quite frankly, that <br>  the Court has   as to what effect Mr. Perry's <br>  misbehavior would have on Juror King . . . . <br> <br>The judge also noted that she had observed no pattern of <br>discrimination in the government's use of its peremptory challenges <br>  a fact that may be entitled to special weight in determining <br>whether a prosecutor's race-neutral explanation for a peremptory <br>challenge is pretextual.  See Hernandez, 500 U.S. at 363. <br>  The appellants urge us to hold that Judge Lisi committed <br>clear error in upholding the prosecutor's strike.  They assert that <br>she misunderstood the applicable legal standard, but the record <br>belies this ipse dixit.  They also harp on the prosecutor's earlier <br>statement that he might consider exercising a peremptory challenge <br>against King if other black jurors were empaneled.  This statement, <br>the appellants say, suggests that the government in certain <br>circumstances would have left King on the jury solely because he <br>was black, thus proving that the prosecutor had race in mind and <br>deliberately injected it into the jury-selection calculus.  While <br>we do not defend the prosecutor's comment (which was both <br>insensitive and unfortunate), we find no clear error in the <br>district court's conclusion that the prosecutor's remark did not <br>discredit his race-neutral explanation.  See Cumpiano v. Banco <br>Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (explaining that <br>no clear error exists unless review "on the whole of the record" <br>generates "a strong, unyielding belief that a mistake has been <br>made"). <br>  The governing principle, of course, is that a person's <br>race must be regarded as "unrelated to his fitness as a juror."  <br>Batson, 476 U.S. at 87.  Here, the record makes manifest that Judge <br>Lisi took this principle fully into account, and her resolution of <br>the issue of pretext based on her assessment of the prosecutor's <br>demeanor and credibility cannot be disturbed.  Perry's paroxysm <br>injected an imponderable into the equation.  Trial lawyers <br>understandably fear the unknown, and that fear, in itself, is not <br>indicative of a race-based viewpoint.  When the prosecutor voiced <br>this sort of concern, the district judge was well-situated to <br>assess his candor.  The judge did so here   and we will not second- <br>guess her assessment.  After all, when the evidence gives rise to <br>competing interpretations, each plausible, the factfinder's choice <br>between them cannot be clearly erroneous.  See Smith v. F.W. Morse <br>& Co., 76 F.3d 413, 423 (1st Cir. 1996); Johnson v. Watts Regulator <br>Co., 63 F.3d 1129, 1138 (1st Cir. 1995). <br>III.  EVIDENTIARY ISSUES <br>  The appellants level a number of criticisms relating to <br>the admission of evidence.  Only three of these criticisms warrant <br>discussion. <br>                   A.  Coconspirator Testimony. <br>  Boyd disputes the district court's admission of certain <br>videotaped statements under Fed. R. Evid. 801(d)(2)(E).  We sketch <br>the circumstances. <br>  The government played videotapes for the jury during the <br>trial.  These videotapes had been secured with the cooperation of <br>a confidential informant, Jose Ortiz, at whose home Latin King <br>meetings sometimes were held.  The videotape about which Boyd <br>complains includes a solitary mention of him by Roman while <br>discussing how Mendez's murder came about.  Boyd contemporaneously <br>objected to the admission of this evidence against him on the <br>ground that it fell outside the scope of Rule 801(d)(2)(E).  He <br>also seasonably requested an instruction limiting the jury's <br>consideration of the evidence to other defendants.  The trial judge <br>overruled the objection, admitted the evidence unconditionally, and <br>declined to give the requested limiting instruction. <br>  We review challenges to the admission of evidence for <br>abuse of discretion.  See Williams v. Drake, 146 F.3d 44, 47 (1st <br>Cir. 1998).  On this basis, Boyd's challenge stumbles at the <br>starting gate.  His argument addresses the admissibility of the <br>evidence solely in respect to the only charge on which the jury <br>found him guilty   the murder-in-aid-of-racketeering charge.  But <br>Boyd was also tried on (albeit not found guilty of) racketeering <br>and racketeering conspiracy charges under the Racketeer Influenced <br>and Corrupt Organizations Act (RICO), 18 U.S.C.  1962, and he <br>concedes that the tape was admissible against him vis--vis those <br>charges. <br>  This concession is dispositive, for the designation of a <br>declaration as non-hearsay under Rule 801(d)(2)(E) is neither <br>count-specific nor conspiracy-specific.  See United States v. <br>Innamorati, 996 F.2d 456, 486 (1st Cir. 1993).  Subject to <br>relevancy and similar considerations, out-of-court statements of a <br>declarant coconspirator, if made during and in furtherance of a <br>conspiracy, are admissible for the truth of the matter asserted, <br>regardless of whether the conspiracy furthered is charged or <br>uncharged, see United States v. Candelaria-Silva, 162 F.3d 698, 706 <br>(1st Cir. 1998); United States v. Rivera, 68 F.3d 5, 7 (1st Cir. <br>1995), and regardless of whether it is identical to or different <br>from the crime that the statements are offered to prove, see <br>Innamorati, 996 F.2d at 486.  Hence, the trial court did not abuse <br>its discretion in overruling Boyd's objection. <br>  We think that the court also appropriately refused Boyd's <br>request for a limiting instruction.  When the government proffered <br>the videotape, Boyd requested an instruction that "the jury c[ould] <br>not consider the statements of Shariff Roman as substantive <br>evidence or proof that Boyd participated in the murder of Mendez."  <br>But the Mendez murder was not charged against Boyd merely as a <br>violent crime in aid of racketeering, 18 U.S.C.  1959(a)(1), but <br>also was charged as one of the predicate acts in the RICO count, <br>id.  1962(c).  As Boyd concedes, the challenged statements were <br>admissible non-hearsay evidence as to the latter count.  Thus, the <br>jury was entitled to consider the relevant portions of Roman's <br>statements on that count as to all the defendants (Boyd included).  <br>On this basis, the proposed instruction   which swept broadly <br>rather than asking narrowly that the jury disregard the statements <br>in respect to the separate charge that the murder was a violent <br>crime in aid of racketeering   would at best have been confusing, <br>and at worst, legally erroneous.  It is, of course, hornbook law <br>that a party cannot rewardingly assign error to a trial court's <br>refusal to give a confusing, misleading, or legally incorrect <br>instruction.  See United States v. DeStefano, 59 F.3d 1, 4 (1st <br>Cir. 1995); United States v. David, 940 F.2d 722, 738 (1st Cir. <br>1991). <br>  In all events, we need not linger over this point, <br>inasmuch as the videotape is not significantly inculpatory as to <br>Boyd's involvement in the commission of the Mendez murder.  The <br>only statement on the tape that relates to Boyd at all occurs when <br>Roman says that, at the time of the murder, "Bullet was, um, in <br>Training School still, you know what I mean?"  This statement, on <br>its face, is benign (perhaps exculpatory).  Still, in a feat of <br>linguistic legerdemain, the government construed this statement at <br>trial to mean that Boyd had escaped from the Training School, and <br>thus was available when the Latin Kings contrived the murder plot.  <br>Even if this odd interpretation is accepted, however, the statement <br>only showed that Boyd was available at the time of the Mendez <br>murder.  Since several percipient witnesses testified not only to <br>his availability, but also to his actual presence at the meetings <br>in which the Latin Kings planned Mendez's murder, any error in <br>refusing to give the requested instruction was harmless because <br>there was no "realistic possibility that admission of the evidence <br>influenced the outcome of the trial" as to Boyd's guilt on the <br>single count of conviction (commission of a violent crime in aid of <br>racketeering).  United States v. Polito, 856 F.2d 414, 420 (1st <br>Cir. 1988); cf. United States v. Ladd, 885 F.2d 954, 957-58 (1st <br>Cir. 1989) (finding erroneous admission of evidence harmless when <br>the evidence served only to prove a point well documented by other <br>evidence). <br>             B.  Testimony of Cooperating Witnesses. <br>  During the trial, the government offered the testimony of <br>several cooperating witnesses, who testified in return for promises <br>that they would not be charged federally for certain crimes and/or <br>for recommendations of lenient sentencing in respect to crimes for <br>which they had been or would be charged.  Five of the appellants <br>(Boyd excluded) insist that the lower court should have barred <br>these witnesses from testifying, and that its failure to do so <br>necessitates a new trial. <br>  The appellants pin their hopes on a witness-bribery <br>statute which provides in relevant part: <br>    Whoever . . . directly or indirectly, gives, <br>  offers or promises anything of value to any <br>  person, for or because of the testimony under <br>  oath or affirmation given or to be given by <br>  such person as a witness upon a trial, <br>  hearing, or other proceeding, before any court <br>  . . . authorized by the laws of the United <br>  States to hear evidence or take testimony . . <br>  . shall be fined under this title or <br>  imprisoned for not more than two years, or <br>  both. <br> <br>18 U.S.C.  201(c)(2).  In mid-1998, a panel of the Tenth Circuit <br>interpreted this statute to forbid testimony given in exchange for <br>promised leniency, and applied an exclusionary rule to such <br>testimony.  See United States v. Singleton, 144 F.3d 1343 (10th <br>Cir. 1998) (Singleton I).  Since then, the federal courts have been <br>inundated with a flood of what have come to be called "Singleton <br>arguments," and we take the opportunity to dam this misguided <br>stream. <br>  Singleton I appears to us to be nothing more than an <br>aberration, and we reject its reasoning and result.  We use the <br>term "aberration" advisedly, because the opinion has been overruled <br>in the circuit of its birth, see United States v. Singleton, 165 <br>F.3d 1297, 1298 (10th Cir. 1999) (en banc) (Singleton II), cert. <br>denied, ___ S. Ct. ___ [1999 WL 185874], and several other courts <br>of appeals have disavowed its anfractuous reading of section <br>201(c)(2), see, e.g., United States v. Lowery, 166 F.3d 1119, 1122- <br>24 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980, 987 <br>(D.C. Cir. 1999); United States v. Ware, 161 F.3d 414, 418 (6th <br>Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999); United States v. <br>Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert. denied, ___ S. <br>Ct. ___ (1999) [1999 WL 241837].  We, too, have intimated as much.  <br>See United States v. Hernandez-Albino, ___ F.3d ___, ___ (1st Cir. <br>1999) [No. 98-1643, slip op. at 16] (holding that refusal to follow <br>Singleton I does not constitute plain error).  Today, we make our <br>position explicit and unqualified. <br>  There are several reasons why section 201(c)(2) cannot be <br>invoked as a bright-line barrier to the government's use of <br>witnesses whose cooperation has been secured by agreements not to <br>prosecute or by promises of recommended leniency.  The most basic <br>reason is that section 201(c)(2) does not apply at all to the <br>federal sovereign qua prosecutor.  Accord Ramsey, 165 F.3d at 987- <br>90; Haese, 162 F.3d at 366-67; Ware, 161 F.3d at 418-21.  After <br>all, "[s]tatutes of general purport do not apply to the United <br>States unless Congress makes the application clear and <br>indisputable," Singleton II, 165 F.3d at 1300, and Congress has <br>taken no such steps in respect to this statute.  Reliance on this <br>tenet is particularly apt where, as here, the failure to honor it <br>would divest the government of a long-established prerogative and, <br>in the bargain, lead to an eccentric result.  See Nardone v. United <br>States, 302 U.S. 379, 383 (1937). <br>  We add, moreover, that the Singleton I panel's reading of <br>section 201(c)(2) cannot be correct because such a reading would <br>preclude enforcement or limit the efficacy of the terms of several <br>more recent   and more specific   statutes, all of which presuppose <br>the potential use of testimony in exchange for non-prosecution <br>agreements, leniency recommendations, and/or other valuable <br>promises.  See, e.g., 28 U.S.C.  994(n) (authorizing the <br>Sentencing Commission to include in the sentencing guidelines a <br>mechanism by which courts may reduce sentences to account for <br>convicted defendants' substantial assistance); 18 U.S.C.  3521 <br>(providing for government-subsidized relocation and protection of <br>witnesses in return for their testimony); 18 U.S.C.  6002, 6003 <br>(allowing prosecutors to obtain orders compelling witnesses to <br>testify despite potential self-incrimination, in return for <br>immunity from prosecution based on that testimony).  These <br>enactments would be crippled, if not rendered utterly meaningless, <br>were we to follow the siren's call of Singleton I.  Courts <br>generally adhere to the principle that statutes relating to the <br>same subject matter should be construed harmoniously if possible, <br>and if not, that more recent or specific statutes should prevail <br>over older or more general ones.  See HCSC-Laundry v. United <br>States, 450 U.S. 1, 6 (1981); Morton v. Mancari, 417 U.S. 535, 550- <br>51 (1974); see also 2B Norman J. Singer, Statutes and Statutory <br>Construction  51.02-03 (1992).  There is no basis for eschewing <br>that time-tested principle in this instance. <br>  At the risk of carting coal to Newcastle, we briefly note <br>two other bases for disavowing Singleton I.  First, it is at least <br>arguable that section 201(c)(2) should not apply to the government <br>because the Dictionary Act, 1 U.S.C.  1, which creates a frame of <br>reference for parsing statutes, defines the word "whoever" to <br>include "corporations, companies, associations, firms, <br>partnerships, societies, and joint stock companies, as well as <br>individuals," but does not define the word to include the United <br>States.  Id.; see also Ramsey, 165 F.3d at 987.  Second, even if <br>section 201(c)(2) were applicable to the testimony of cooperating <br>witnesses, the appropriate penalty for the use at trial of <br>testimony obtained in derogation of the statute most likely would <br>be a fine or imprisonment (as prescribed by the statute itself), <br>not resort to a judicially-crafted exclusionary rule.  See United <br>States v. Condon, 170 F.3d  687, 689 (7th Cir. 1999); Ramsey, 165 <br>F.3d at 991. <br>  We have said enough on this score.  We hold, without <br>serious question, that 18 U.S.C.  201(c)(2) does not bar the <br>government from promising leniency or the like to cooperating <br>witnesses.  Accordingly, the district court did not err in <br>admitting the contested testimony. <br>                 C.  Scope of Cross-Examination. <br>  Perry, who testified at trial in his own defense, strives <br>to persuade us that the district court gave the government too free <br>rein in cross-examination.  We are unconvinced. <br>  Perry's thesis is that the challenged cross-examination <br>exceeded the scope of direct examination and, therefore, should <br>have been foreclosed.  This thesis rests primarily on the first <br>sentence of Fed. R. Evid. 611(b), which reads:  "Cross-examination <br>should be limited to the subject matter of the direct examination <br>and matters affecting the credibility of the witness."  Perry notes <br>that his direct examination consisted of only ten questions, <br>restricted to the Vandergroen carjacking and its sequelae.  See <br>infra Part IV(A)(2) (describing this carjacking).  Yet, the trial <br>court allowed the prosecutor, over objection, to cross-question <br>Perry not only about the carjacking, but also about other crimes of <br>which he and his codefendants were accused (including the Mendez <br>murder and two attempted homicides charged as predicate acts in the <br>RICO conspiracy count), and about a draft of a letter seized from <br>his jail cell in which he accused his former girlfriend of <br>"snitching" and requested that she be silenced. <br>  We review district court rulings anent the scope of <br>cross-examination solely for abuse of discretion.  See United <br>States v. Smith, 145 F.3d 458, 462 (1st Cir.), cert. denied, 119 S. <br>Ct. 383 (1998); United States v. Morla-Trinidad, 100 F.3d 1, 4 (1st <br>Cir. 1996).  We find none here.  It is standard fare for cross- <br>examiners to inquire into issues not mentioned on direct <br>examination, but related to and made relevant by that examination.  <br>See McGautha v. California, 402 U.S. 183, 215 (1971).  It is <br>equally standard   and equally proper   for a cross-examiner to <br>delve into matters which, although not mentioned on direct <br>examination, bear on the witness's credibility.  See id.  <br>Collectively, these two categories envelop the questions that Perry <br>challenges.  We explain briefly. <br>  The indictment charged the Vandergroen carjacking as a <br>predicate act within the RICO conspiracy and as a violent crime in <br>aid of racketeering.  At trial, the government asserted that <br>Vandergroen's disrespect of Perry offended the Latin King code and <br>led Perry to target him.  During the government's case in chief, at <br>least two witnesses testified in support of this theory.  Because <br>Perry's direct examination included a denial that the Vandergroen <br>incident had anything to do with the Latin Kings, the government <br>was entitled to test the veracity of this denial.  One way of doing <br>so was to interrogate Perry about other crimes that he had <br>committed under the organization's auspices. <br>  In his direct testimony, Perry also endeavored to <br>exonerate Lara, portraying him on direct examination as unaware   <br>until it was too late   that either the carjacking or the killing <br>would transpire.  On cross-examination, the government sought to <br>show that this version of events conflicted with Perry's earlier <br>statement to the police and to suggest that he was covering for <br>Lara as part of his perceived duty as a Latin King not to "rat" on <br>fellow gang members.  It was in this context that the prosecutor <br>asked about the correspondence in which Perry solicited punishment <br>for his loose-lipped girlfriend.  Thus, we detect no abuse of <br>discretion in Judge Lisi's determination that these lines of cross- <br>questioning were not beyond the scope of Perry's direct <br>examination. <br>  We hasten to add that, even were we to conclude that the <br>challenged questions exceeded the scope of direct examination, we <br>nonetheless would uphold the judge's rulings.  Perry's <br>animadversions largely overlook the second sentence of Rule 611(b), <br>which empowers trial courts, "in the exercise of discretion, [to] <br>permit inquiry into additional matters as if on direct <br>examination."  Fed. R. Evid. 611(b).   This authorization confers <br>discretion on trial judges to disregard the first sentence of Rule <br>611(b) and allow cross-examination to extend into areas not <br>explored on direct.  See Losacco v. F.D. Rich Constr. Co., 992 F.2d <br>382, 385 (1st Cir. 1993); United States v. Arnott, 704 F.2d 322, <br>324 (6th Cir. 1983); United States v. Raper, 676 F.2d 841, 846-47 <br>(D.C. Cir. 1982).  But cf. Lis v. Robert Packer Hosp., 579 F.2d <br>819, 823 (3d Cir. 1978) (confining the exercise of a district <br>court's discretion under the second sentence of Rule 611(b)  to <br>"special circumstances").  In this instance, the challenged <br>questions occupied only a fraction of the cross-examination and <br>bore a close relationship to major trial issues.  Thus, whether or <br>not the questions fell within the scope of the direct examination, <br>we could not say that the trial judge's overruling of Perry's <br>objections constituted an abuse of discretion. <br>IV.  SUFFICIENCY OF THE EVIDENCE <br>  We next address the denial of Lara's, Boyd's, and Roman's <br>motions for judgment of acquittal under Fed. R. Crim. P. 29.  In <br>reviewing such denials, the court of appeals affords plenary review <br>and applies precisely the same regimen that obtains in the trial <br>court.  This regimen entails considering the evidence in the light <br>most favorable to the prosecution and determining whether this body <br>of proof, as a whole, has sufficient bite to ground a reasoned <br>conclusion that the government proved each of the elements of the <br>charged crime beyond a reasonable doubt.  See United States v. <br>Valle, 72 F.3d 210, 216-17 (1st Cir. 1995); United States v. <br>Olbres, 61 F.3d 967, 970 (1st Cir. 1995).  This prosecution- <br>friendly standard requires the resolution of all evidentiary <br>disputes and credibility questions in favor of the government, and <br>also requires the acceptance of those reasonable inferences from <br>the evidence (whether or not inevitable) that support the <br>government's view of the case.  See United States v. Carroll, 105 <br>F.3d 740, 742 (1st Cir.), cert. denied, 520 U.S. 1258 (1997).  The <br>jury's verdict must stand unless the record, viewed from this coign <br>of vantage, would not allow a rational jury to find the defendant <br>guilty beyond a reasonable doubt.  See id.; see also Olbres, 61 <br>F.3d at 970.  With these criteria in mind, we turn to the specifics <br>of the appellants' claims. <br>                      A.  Lara's Challenges. <br>  Lara contests the sufficiency of the evidence in regard <br>to two separate convictions.  We discuss these initiatives <br>sequentially. <br>  1.  Witness Intimidation.  Initially, Lara attacks his <br>conviction for intimidating a government witness, Manuel Pacheco <br>(variously referred to as "Manny" or "Joey").  As it applies in <br>this case, the statute of conviction requires the government to <br>prove two elements:  (i) that the defendant knowingly used <br>intimidation, physical force, or threats against another, and (ii) <br>that this conduct was intended to "influence, delay, or prevent the <br>testimony of any person in an official proceeding."  18 U.S.C.  <br>1512(b)(1).  The term "official proceeding" encompasses both <br>federal criminal trials and grand jury sessions.  See id.  <br>1515(a)(1)(A); see also United States v. Victor, 973 F.2d 975, 978 <br>(1st Cir. 1992). <br>  The facts, marshaled in the light most flattering to the <br>government, amply support the jury's verdict on this count.  The <br>jury reasonably could have found that Pacheco aided the authorities <br>in their investigation of the Latin Kings, that the organization's <br>top brass suspected as much, and that they feared that Pacheco had <br>appeared (or would soon do so) as a witness before the grand jury <br>and/or at an ensuing trial.  In November 1994, Sepulveda (then the <br>president of the Providence chapter) ordered Pacheco's <br>"termination" (a disposition which, in Latin King parlance, might <br>mean anything from a beating to a slaying). <br>  At the time, Pacheco was housed in the Rhode Island state <br>penitentiary (as was Lara).  Vasquez and two fellow Latin Kings <br>(Alex Mesa and Rodney Santi) were dispatched to explain the <br>situation and communicate the order to a pickup team of <br>incarcerated Latin Kings.  At the penitentiary, the three <br>messengers visited one on one with a trio of Latin King inmates <br>(Lara, Kareem Abdulla, and Edson Toro) and carried out their <br>assignment.  To be specific, Vasquez met with Lara, Mesa with <br>Abdulla, and Santi with Toro.  The following evening, Lara, <br>Abdulla, Toro, and a fourth incarcerated Latin King, Richard <br>Rodriguez, approached Pacheco in a dark corner of the prison yard.  <br>The group surrounded Pacheco and taunted him about being a "rat."  <br>He was then struck from behind and savagely beaten. <br>  Lara declares that this evidence is inadequate because no <br>direct testimony showed that he received the termination order <br>(indeed, Vasquez testified to the contrary) or participated in <br>administering the beating.  These declarations comprise more cry <br>than wool.  Mesa and Santi testified that they rode to the prison <br>with Vasquez, that the three of them discussed the termination <br>order en route, and that they each relayed the message to the <br>inmate with whom they spoke.  Vasquez signed the prison's visitor <br>log.  He admitted visiting with Lara.  Pacheco testified that Lara <br>had been in the group that surrounded him and had been behind him <br>when he was struck from the rear. <br>  Although this evidence is largely circumstantial, the <br>jury reasonably could have disbelieved Vasquez's self-serving <br>denial and inferred that he followed orders (as his fellow <br>messengers had) and communicated the directive to Lara.  By like <br>token, the jury reasonably could have credited Pacheco's account <br>and thus inferred that Lara participated in the beating.  Any <br>divergent view of the evidence would elevate coincidence to an art <br>form.  The proof, therefore, was sufficient to convict on the <br>witness intimidation count.  See United States v. Castro-Lara, 970 <br>F.2d 976, 981 (1st Cir. 1992) (explaining that "circumstantial <br>evidence, in and of itself, is often enough to ground a <br>conviction"); see also Carroll, 105 F.3d at 743 (noting, in the <br>context of rejecting an insufficiency challenge, the reticence of <br>appellate courts to "second-guess" a jury's credibility judgments). <br>  2.  Carjacking.  Lara and Perry were convicted of a <br>carjacking on September 6, 1994.  This scenario involved Temujin <br>Vandergroen, who apparently precipitated the incident by playing <br>with a knife in front of Perry's children.  Perry interpreted this <br>as a sign of disrespect, intolerable to a Latin King, and asked <br>Lara to accompany him while he relieved Vandergroen of his Ford <br>Escort (which was adorned with tire rims that Perry fancied). <br>  The two men asked Vandergroen to take a ride with them.  <br>When he agreed, Perry (who had brought along a sawed-off shotgun) <br>sat behind Vandergroen in the car, while Lara sat in the front <br>passenger seat.  At Perry's request, Vandergroen drove to a <br>deserted neighborhood.  Perry then told Vandergroen to slow or stop <br>the vehicle, and, when Vandergroen complied, Perry shot him.  Perry <br>and Lara shoved Vandergroen's body into the street and returned to <br>a Latin King hangout, where they were seen with blood and brain <br>matter on their clothing.  The two later burned and abandoned the <br>car. <br>  On these facts, the jury convicted Lara of carjacking in <br>violation of 18 U.S.C.  2119(3).  Lara attacks the sufficiency of <br>the evidence from an odd angle.  He does not allege that the <br>government failed to prove that he committed specific elements of <br>the offense, but, rather, claims that the only witness whose <br>testimony implicated him in the carjacking (Pacheco) was <br>unreliable.  This attack is impuissant.  In the usual case, the <br>credibility of witnesses is for the jury, see Carroll, 105 F.3d at <br>743; United States v. Laboy-Delgado, 84 F.3d 22, 27 (1st Cir. <br>1996), and there is nothing here that mitigates against the <br>conventional application of this rule.  There were conflicting <br>accounts of Lara's participation in the carjacking, and the jury <br>was free to decide which, if any, to believe. <br>  Lara has a fallback position.  Perry had given testimony <br>exculpating Lara from complicity in the Vandergroen carjacking.  <br>See supra Part III(C).  Lara hypothesizes that Perry's disgusting <br>courtroom conduct, see United States v. Perry, 116 F.3d 952, 954 <br>(1st Cir. 1997), unfairly undercut this exculpatory testimony.  <br>But there is simply no evidence that Perry's conduct prejudiced the <br>jury against Lara.  When a defendant presses a plausible claim of <br>spillover effect, differentiated verdicts often constitute tangible <br>evidence of the jury's enduring ability to distinguish between the <br>culpability of codefendants.  See, e.g., United States v. Flores- <br>Rivera, 56 F.3d 319, 326 n.2 (1st Cir. 1995).  This case is of that <br>stripe:   even after Perry's dramatic display, the jury acquitted <br>Lara, but convicted Perry, on several counts, including the charge <br>of using or carrying a firearm during the Vandergroen carjacking.  <br>Then, too, the trial judge instructed the jurors soon after Perry's <br>gaffe that they should draw no adverse inference therefrom against <br>any defendant (Perry included).  See Perry, 116 F.3d at 954.  This <br>timely instruction further supports the conclusion that Lara was <br>not prejudiced by Perry's actions.  See Richardson v. Marsh, 481 <br>U.S. 200, 206 (1987) (remarking "the almost invariable assumption <br>of the law that jurors follow their instructions"); United States <br>v. Sepulveda, 15 F.3d 1161, 1185 (1st Cir. 1993) (similar). <br>  To sum up, because the evidence allowed a rational jury <br>to find Lara guilty beyond a reasonable doubt of both witness <br>intimidation and carjacking, the district court did not err in <br>refusing to grant an instructed verdict of acquittal on either or <br>both of these counts. <br>                B.  Boyd's and Roman's Challenge. <br>  Boyd and Roman challenge the sufficiency of the evidence <br>to support their convictions for committing a violent crime (the <br>murder of Jose Mendez) in aid of racketeering.  The relevant facts, <br>stated from the perspective most conducive to the verdict, are as <br>follows. <br>  On Saturday, November 5, 1994, several members of the <br>Providence Latin Kings attended a party in Connecticut.  On that <br>occasion, they learned that their Connecticut counterparts were at <br>war with a rival gang, the Netas.  Two Connecticut Latin Kings <br>returned to Rhode Island with the Providence contingent.  One of <br>them, Peter Natal, later became a confidential informant. <br>  At a meeting of the Providence chapter held on Monday, <br>November 7, Sepulveda told his cohorts about the war in <br>Connecticut.  Immediately after this announcement, the officers of <br>the Providence chapter (including, at least, Sepulveda, Boyd, and <br>Roman) went into executive session and discussed a plan to kill the <br>leader of the Netas in Providence.  This strategy was hatched on <br>the theory that, in Sepulveda's words, "without the head, the body <br>falls."  The executive session ended on this note, the main meeting <br>resumed, and Sepulveda asked the general membership to forget what <br>he had said about a war. <br>  Natal attended the executive session.  He testified that, <br>during this discussion, the Latin King hierarchs noted the near- <br>dearth of local Netas; Providence was virgin territory and there <br>were only four full members of the Neta gang at that point.  Mesa <br>confirmed this assessment.  He testified that "there was [sic] very <br>few Netas out here.  There's probably like four Netas.  Each one <br>had a position [i.e., held an office in the gang]."  Initially, <br>there was confusion over whether Jose Mendez might be the president <br>of the Providence Netas, but a consensus gradually developed in <br>favor of the view that Winston Navarette held that office. <br>  After the meeting adjourned, several participants <br>repaired to the dwelling that Roman shared with his then-paramour, <br>Tia Barboza.  A small group, including Boyd and Roman, met in Tia's <br>bedroom and finalized the plan to kill the head of the Netas.  Four <br>members were assigned responsibility for carrying out the <br>assassination:  Perry, Santi, Hakim Davis, and Juan Garcia.  <br>Witnesses stated that Boyd and Roman each chose at least one member <br>of the "hit squad."  The next day, Roman distributed weapons from <br>the gang's cache to the appointees. <br>  In retrospect, it appears that, at the crucial time, the <br>Providence Netas had four officers:  Winston Navarette (president), <br>Jose Mendez (vice-president), Edgar Pichardo (disciplinarian), and <br>Maquiva Mendez (secretary).  The Netas lived together.  When the <br>hit squad arrived at their abode, they asked for Navarette and were <br>informed that he was out of town.  The trial testimony was <br>unequivocal that when the Neta president was away, the vice- <br>president assumed his responsibilities.  Thus, Jose Mendez, <br>nominally the Neta vice-president, was the head of the Netas in <br>Navarette's absence. <br>  Upon learning of Navarette's unavailability, the crew <br>invited Jose Mendez, who was wearing his Neta colors at the time, <br>to smoke some marijuana.  The group, now five in number, walked to <br>a nearby field where Perry shot Mendez from behind, killing him.  <br>The four Latin Kings fled. <br>  Boyd claims that this evidence failed to link him <br>sufficiently to Mendez's murder.  He argues that even the most <br>generous view of the evidence fails to support the jury's verdict <br>because there was no evidence (1) that the plan was to kill <br>whomever was the Neta leader, (2) that the shooter was aware that <br>his target was the de facto leader, or (3) that the shooter knew <br>Mendez had become the de facto leader of the Netas in Navarette's <br>absence. <br>  Before coming to grips with these arguments, we address <br>a procedural issue.  Roman did not raise the sufficiency question <br>in his opening brief, but, after perusing Boyd's brief, sought <br>leave from this court to adopt the argument.  By order entered <br>February 1, 1999, we granted this request provisionally, subject to <br>a final determination after the case was heard. <br>  The standard for adoption of arguments by reference <br>involves a determination of whether the arguments are "readily <br>transferrable from the proponent's case to the adopter's case."  <br>David, 940 F.2d at 737.  We ordinarily look with disfavor upon <br>attempts to adopt factbound arguments by reference.  See, e.g., <br>Castro-Lara, 970 F.2d at 982; David, 940 F.2d at 737.  Under the <br>peculiar circumstances of this case, however, we allow the <br>adoption.  Roman, like Boyd, moved for judgment of acquittal below, <br>and relied on the same three grounds in support of his claim that <br>the evidence was insufficient to convict him of Mendez's murder.  <br>More importantly, although the evidence as to each varies on the <br>first two grounds, Boyd's arguments are generally relevant to <br>Roman, who, like Boyd, was a part of the officers' meetings, but <br>not a member of the crew sent to carry out the execution.  Thus, <br>the David "ready transferability" standard is satisfied and we will <br>entertain the insufficiency claims of both appellants. <br>  Boyd's and Roman's first two points are easily <br>dispatched.  Davis, a first-hand participant, described the plan <br>and the implementing order as being aimed at killing the head of <br>the Netas.  This order was given in the presence, and with the <br>acquiescence, of Boyd and Roman.  It was designed as a preemptive <br>strike on the Neta leadership. <br>  Although some of the witnesses whose testimony the <br>government hawks had made prior inconsistent statements, the same <br>is true for several witnesses whose testimony Boyd and Roman <br>espouse.  The jurors were entitled to choose which witnesses to <br>credit, and, in the posture of a sufficiency-of-the-evidence <br>challenge, we must assume that they credited those witnesses whose <br>testimony lent support to the verdict.  See Carroll, 105 F.3d at <br>742-43; Laboy-Delgado, 84 F.3d at 27-28.  At any rate, jurors are <br>not required to discard testimony that appears to contain internal <br>inconsistencies, but may credit some parts of a witness's testimony <br>and disregard other potentially contradictory portions.  See United <br>States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994). <br>  The third deficiency to which Boyd and Roman allude is <br>more nettlesome.  The government offered no direct evidence that <br>the shooter (Perry) knew of Jose Mendez's position as de facto <br>leader of the Netas at the time of the murder.  Still, direct <br>evidence is not essential to proof of criminality.  See id. at 706- <br>07; Castro-Lara, 970 F.2d at 981; United States v. Ortiz, 966 F.2d <br>707, 711 (1st Cir. 1992).  In this instance, the circumstantial <br>evidence is telling:  the proof (particularly the testimony of <br>Natal and Mesa) showed that at least some Latin Kings knew there <br>were only four full-fledged members of the Netas in Providence, and <br>that all of them were officers of the gang.  Mendez's name was <br>bandied about at the executive session (which both Boyd and Roman <br>attended) as the possible head of the Netas.  Although consensus <br>later formed around the idea that Navarette occupied the top rung <br>on the ladder, the discussion of Mendez's involvement strongly <br>suggests that the Latin King leadership was keenly aware that he <br>held a relatively high position in the Netas. <br>  We have held before that evidence of events that occur <br>subsequent to the commission of a crime can shed light upon an <br>actor's guilt vel non.  See, e.g., United States v. Sutton, 970 <br>F.2d 1001, 1007 (1st Cir. 1992); United States v. Mena, 933 F.2d <br>19, 25 n.5 (1st Cir. 1991).  In this instance, evidence of the <br>Latin King leaders' reaction to the murder bolsters the <br>government's case.  Davis recalled that Sepulveda, then the Latin <br>King president, responded to the report of Mendez's demise by <br>remarking that the hit squad had done a good job.  Moreover, the <br>Latin Kings did not mount a manhunt for Navarette after the Mendez <br>murder because, in Davis's words, their "mission" had been <br>completed successfully. <br>  Jurors are entitled to draw reasonable inferences from <br>proven facts.  On this record, we think that two key inferences are <br>supportable.  First, the jury reasonably could have inferred that <br>Perry was aware of Mendez's leadership role in the Netas.  Second, <br>the jury reasonably could have inferred that when the hit squad <br>encountered Mendez, its members believed that he was likely the <br>highest available member of the Neta leadership and killed him for <br>that reason, in compliance with the order that had issued.  Boyd's <br>and Roman's alternate hypothesis   that Navarette's absence foiled <br>the plot, and that Perry killed Mendez in order to satisfy his <br>bloodlust   was not implausible, but the jury rejected it in favor <br>of a finding that Perry pulled the trigger to effect the directive <br>that had been handed down by the Latin King hierarchs.  This choice <br>fell well within the jury's proper purview.  See United States v. <br>Gifford, 17 F.3d 462, 467 (1st Cir. 1994) (noting that the evidence <br>"need not rule out other hypotheses more congenial to a finding of <br>innocence" in order to defeat a Rule 29 motion).  Thus, we conclude <br>that the evidence suffices to sustain the disputed convictions.  <br>See Bourjaily v. United States, 483 U.S. 171, 179-80 (1987) <br>(explaining that "individual pieces of evidence, insufficient in <br>themselves to prove a point, may in cumulation prove it"); Stewart <br>v. Coalter, 48 F.3d 610, 615-16 (1st Cir. 1995) (discussing <br>permissible inferences in criminal cases). <br>V.  JURY INSTRUCTIONS <br>  Lara offers several complaints about the district court's <br>jury instructions on the carjacking count.  Only one of these <br>points deserves comment. <br>  Tracking the applicable statute, 18 U.S.C.  2119(3) (see <br>supra note 5), the court instructed the jury that it must find four <br>elements in order to convict:  (1) that the named defendants (Lara <br>and Perry), by means of force or violence, (2) took from the person <br>or presence of Vandergroen a motor vehicle (3) that previously had <br>been transported, shipped, or received in interstate or foreign <br>commerce, and (4) that one or both of the named defendants <br>possessed a firearm at the time.  Lara's most fervent challenge, <br>properly preserved, concerns the court's elaboration upon the <br>fourth element.  The court stated: <br>    [T]he government must prove that at least one <br>  of the two defendants was in possession of a <br>  firearm.  A person has possession of something <br>  if the person knows of its presence and has <br>  physical control of it, or has the power and <br>  intention to control it.  More than one person <br>  can be in possession of something if each <br>  knows of its presence and has the power and <br>  intention to control it. <br> <br>Lara condemns this instruction because it allowed the jury to <br>convict him although only Perry actually possessed a firearm.  And <br>to illustrate the harmfulness of this error, Lara points out that <br>the jury acquitted him on a related charge of using or carrying a <br>firearm during a crime of violence, 18 U.S.C.  924(c). <br>  In the face of properly preserved objections, we evaluate <br>challenged jury instructions under an abuse of discretion rubric, <br>considering the charge as a whole.  See DeStefano, 59 F.3d at 2-3; <br>United States v. Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987).  So <br>viewed, Judge Lisi's possession instruction passes muster.  The <br>indictment charged Lara not only as a principal in the carjacking, <br>but also as an aider and abettor under 18 U.S.C.  2.  In her <br>instructions, Judge Lisi described the workings of the latter <br>statute in considerable detail, stating, inter alia, "you may find <br>a defendant guilty of the offense charged if you find beyond a <br>reasonable doubt that the government has proven that another person <br>actually committed the offense with which the defendant is charged, <br>and that the defendant aided, abetted, induced, or procured that <br>person to commit the offense."  She later described the carjacking <br>count as charging Perry and Lara with having violated both section <br>2119(3) and section 2.  Thus, under the instructions, as long as <br>the jury found that either Perry or Lara intended to take <br>Vandergroen's vehicle by forcible or violent means and carried a <br>firearm to that end, the other defendant could be found guilty as <br>an aider and abettor if he knew of the plan and intended to assist <br>in its accomplishment.  This correctly reflects applicable law.  <br>See United States v. Oliver, 60 F.3d 547, 551 (9th Cir. 1995), <br>rev'd on other grounds sub nom. Jones v. United States, 119 S. Ct. <br>1215 (1999); United States v. Harris, 25 F.3d 1275, 1278-79 (5th <br>Cir. 1994). <br>  The jury's acquittal of Lara on the section 924(c) count <br>does not discredit this conclusion.  For one thing, the <br>instructions on that count did not make provision for aider/abettor <br>liability, and, therefore, the verdicts were not inconsistent.  For <br>another thing, the two statutes differ in a material respect.  <br>Section 2119(3) discusses "possession" of a firearm, while section <br>924(c) discusses "use and carr[iage]."  Because the definitions of <br>"use" and "carry" under section 924(c) denote more than mere <br>possession, a jury reasonably can find, without any logical <br>inconsistency, that a defendant who meets the requirements of the <br>possession element under section 2119 does not meet the more <br>rigorous requirements imposed by section 924(c).  See Muscarello <br>v. United States, 118 S. Ct. 1911, 1914 (1998) (discussing <br>carriage); Bailey v. United States, 516 U.S. 137, 143 (1995) <br>(discussing use). <br>  If more were needed   and we do not think that it is   we <br>note that Lara's complaint, as framed, seems to arise more from the <br>perceived mismatch between his acquittal under section 924(c) and <br>his conviction under section 2119(3) than from any actual flaw in <br>Judge Lisi's charge to the jury.  Thus   although Lara disclaims <br>such a theorem   we are left with the decided impression that a <br>claim of inconsistent verdicts lies at the heart of this assignment <br>of error.  In recent times, we repeatedly have rejected such <br>challenges to criminal verdicts, see, e.g., United States v. <br>Crochiere, 129 F.3d 233, 239 (1st Cir. 1997), cert. denied, 118 S. <br>Ct. 1364 (1998); United States v. Bucuvalas, 909 F.2d 593, 594 (1st <br>Cir. 1990), and nothing about this case differentiates it from the <br>mine-run. <br>VI.  CONCLUSION <br>  We need go no further.  A painstaking review of this <br>amplitudinous record reveals that the appellants were convicted by <br>a properly constituted jury after a full and fair trial, free from <br>reversible error, before a judge who exhibited extraordinary care <br>and patience.  Their appeals are without basis in fact or in law. <br> <br>Affirmed.</pre>

</body>

</html>

