
USCA1 Opinion

	




                                       United States Court of Appeals                                For the First Circuit                                 ____________________          Nos. 96-1916                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                      FRED AWON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Stahl, Circuit Judge,                                       _____________                      Coffin and Aldrich, Senior Circuit Judges.                                          _____________________                                 ____________________               Robert A. George for appellant.               ________________               James F. Lang,  Assistant United States Attorney,  with whom               _____________          Donald  K.  Stern,  United  States Attorney,  was  on  brief  for          _________________          appellee.                                 ____________________                                   February 2, 1998                                 ___________________               COFFIN, Senior Circuit  Judge.  Defendant Fred  Awon appeals                       _____________________          his conviction for arson, use of  a fire to commit a felony,  and          mail fraud.   He asserts that  the district court  erred in:  (1)          admitting   prior  consistent   statements   of  two   government          witnesses;  (2)  limiting  cross-examination  of  a witness;  (3)          refusing  to grant a mistrial after improper cross-examination of          defendant;  and (4)  imposing too  high a  base offense  level at          sentencing.  Most of this opinion deals with the first issue.  We          fault  the government  for pressing admission  and the  court for          admitting the  evidence, but  conclude that  the error  could not          have affected the verdict.  We affirm.                                    I. BACKGROUND               Defendant  was convicted by  a jury for  twice orchestrating          the  arson of  a building  located  on Ames  Street in  Brockton,          Massachusetts  ("the Ames building")  by hiring James  St. Louis,          and two  brothers, Jorge  and Joaquim Neves,  to set  the fires.1          The Ames  building, owned by defendant and  his father, contained          vacant  retail  space  on  the   first  floor  and  two  occupied          residential apartments  on the second  floor at the time  of both          fires.  The first fire caused minimal damage; the second required          the demolition of the building and two adjacent buildings.                                        ____________________               1    St.  Louis and defendant  were tried together,  but St.          Louis, indicted for setting both fires, was convicted for setting          the second fire only.  Jorge Neves, who was involved in the first          fire, was  never  charged,  but  Joaquim  was  indicted  on  four          separate counts and,  before trial, entered into a plea agreement          with  the government  whereby he  pled guilty  to arson  and mail          fraud counts stemming from his role in the second fire.                                         -2-               We review the  evidence presented at trial  by defendant and          the  government.    Because  defendant  does  not  challenge  the          sufficiency  of the evidence,  we describe the  relevant evidence          without favor to either party  to provide context for the claimed          errors.  See United States v. Morla-Trinidad,  100 F.3d 1, 2 (1st                   ___ _____________    ______________          Cir. 1996).          A.   The Neves Brothers               __________________               Jorge testified that,  in mid-1994, St. Louis  recruited him          to help set fire to the building, stating that they would receive          money and  a car as payment from defendant,  who owned a used car          dealership.   Jorge admitted to pouring  and lighting gasoline on          the first floor of the  building, at the direction of  St. Louis.          Firefighters arrived shortly thereafter, preventing damage to the          building;   as  a  result,  Jorge  never  received  payment  from          defendant.               Jorge's testimony  also revealed that the  government agreed          not to  prosecute him in  exchange for his cooperation  in court,          that for the  past six months he  had been held  in custody as  a          material  witness and  wanted to  be  released, and  that he  had          several criminal cases pending against him at the time of trial.                Joaquim testified that,  in the summer  of 1994, he  learned          from  St. Louis' brother  that defendant was  looking for someone          who would  burn down the Ames building.  Joaquim reported that he          agreed to set the fire in exchange for $5,000, and then solicited          St. Louis' assistance; but, an illegal immigrant, he was detained          by the United States Immigration and Naturalization Service (INS)                                         -3-          before he could act.  After his release on bail, he and St. Louis          told defendant they  would set the fire.   Joaquim testified that          he witnessed  defendant agree to pay St.  Louis with a car valued          at $2,900.   Joaquim admitted pouring gas on the first and second          floors of the  Ames building, which  was then  lit by St.  Louis,          resulting in an explosion and fire that destroyed the building.                 Joaquim also testified that, the  day after the fire, he and          St.  Louis  went to  defendant's  shop,  where St.  Louis  signed          paperwork  for the car.  The following day, Joaquim went with St.          Louis  to get the  car from defendant,  and a few  days later, he          personally received $2,100 in cash from defendant.               Joaquim  reported that, in exchange  for his testimony and a          guilty plea, the government would  request that the court  depart          downward from his guidelines sentence.  He also acknowledged that          he feared impending  deportation, and  that he  had an  extensive          criminal history.               Defendant  denied soliciting either of the Neves brothers to          commit arson.   He explained  that Joaquim had become  angry with          him sometime prior  to the fire because defendant  had refused to          provide him  with bail  from INS custody,  and had  twice ordered          Joaquim off his car lot.  On  the first occasion, about two weeks          before the second fire, Joaquim  told defendant that he wanted to          buy an  expensive car, and became angry when defendant questioned          him about  where he would  get the  money; the second  time, when          defendant asked Joaquim whether he had been involved in the fire,          Joaquim responded in the negative,  but smirked suspiciously.  On                                         -4-          cross-examination,  defendant stated  that he  did  not tell  the          police when they interviewed him before trial about  any existing          hostility between himself and Joaquim.               St.  Louis'  brother  denied  having any  conversation  with          defendant or Joaquim about burning defendant's property.            B.   The Car Transfer                ________________               In addition to  Joaquim's testimony that defendant  paid St.          Louis  with  a  car,  the  government  introduced  into  evidence          business  records  belonging  to the  defendant's  auto  company.          These indicate that defendant sold a  car to St. Louis for $2,000          one day after  the second fire.   They also indicate that,  a few          months  earlier,  the company  had  purchased that  same  car for          $2,220.                Defendant  testified that  the  sale  to  St.  Louis  was  a          legitimate  one,  for which  he  received  $2,000  in cash.    He          explained that he sold  at a loss because the car  had mechanical          problems and had  failed to sell for a few months at the intended          price of  $3,500.   Defendant said that  he questioned  St. Louis          about  the source of  the $2,000, and  that St.  Louis refused to          answer him.2                Joaquim's mother  testified that,  when her  son was in  INS          custody, she gave  St. Louis $1,000 toward the  $3,000 needed for          his  bail and,  the following  day,  Joaquim was  released.   The          defense argued that this evidence showed, inferentially, that St.          Louis  had  supplied the  remaining  $2,000,  which,  as soon  as                                        ____________________               2    St. Louis did not testify at trial.                                         -5-          Joaquim repaid  it, St. Louis used to buy the car from defendant.          On cross-examination  by the government, Joaquim's  mother stated          that she did  not know  whether St.  Louis put up  any money  for          Joaquim's release on bail from INS custody.            C.   Motive               ______               The government  introduced evidence showing  that the  Awons          were losing money on the Ames buildings and, at the time  of both          fires, the property was insured  for loss to the structure of  up          to $80,000, and  losses attributable to business  interruption of          up to  $12,000.  After the  first fire, defendant and  his father          negotiated  an  insurance  settlement in  the  amount  of $4,171.          After the  second fire,  they negotiated  a settlement  totalling          $91,176, and  then used this money  to pay their mortgage  on the          property.               Defendant's parents testified that all of the money invested          in the Ames  building belonged  to them,  that their  son had  no          responsibility  for   financial  expenditures   related  to   the          building, and that  he had never received rental  income from the          apartments.  They explained that their son's name was included on          the deed  and mortgage  only because they  did not  speak English          fluently  and  needed  their son's  assistance  to  translate the          documents.    They  described their  son's  involvement  with the          property  as limited  to showing  the  apartments to  prospective          tenants and responding on occasion to maintenance requests.  They          also stated  that they,  not their son,  received the  settlement          money after the fires.                                         -6-               Defendant  testified  that,  while a  co-owner  of  the Ames          building, he did not put up  any of the purchase money, make  any          mortgage  payments, or  pay taxes  on  the property.   On  cross-          examination,  however, the  government  introduced evidence  that          defendant had made at least one mortgage payment on the property.          Defendant then stated that he  could not remember having made any          other  mortgage payments.   He  also admitted  that his  name was          listed on  the settlement check  from the insurance  company, but          maintained that his father received all the proceeds.                 II. ADMISSION OF THE NEVES' OUT-OF-COURT STATEMENTS               The first and only difficult  issue we consider in this case          is the admission at trial  of out-of-court statements made by the          Neves brothers.   Each brother made a written  and oral statement          to police months before trial, implicating himself, St. Louis and          defendant in the respective arsons.  These statements, which were          otherwise inadmissible as  hearsay, were admitted at  trial under          an  exception  for  prior consistent  statements.    We generally          review admission  of hearsay  evidence for  abuse of  discretion.          United States v.  Paulino, 13 F.3d 20,  25 (1st Cir. 1994).   But          _____________     _______          where, as here,  the issue concerns a factual determination, such          as when the statement was made relative to a  suggested motive to          fabricate, we review for clear error.  See United States v. Vest,                                                 ___ _____________    ____          842 F.2d 1319, 1329 (1st Cir. 1988).   We may affirm the district          court's admission  of hearsay  testimony on  any ground  apparent                                         -7-          from the  appellate record.   United States  v. Alzanki,  54 F.3d                                        _____________     _______          994, 1008 (1st Cir. 1995).           A.   Rule 801(d)(1)(B)               _________________               The  district court allowed  use of the  Neves' out-of-court          statements under  Fed. R. Evid.  801(d)(1)(B).  Under  that rule,          prior consistent statements that would otherwise be  inadmissible          hearsay evidence  may be  admitted into evidence  when:   (1) the          declarant testifies at trial and is subject to cross-examination;          (2) the challenged statements and trial testimony are consistent;          and (3) the  challenged statements are offered to  rebut a charge          that the  declarant recently fabricated  his story,  or that  the          declarant became subject  to some improper influence or motive to          falsify after making the statements.   See Tome v. United States,                                                 ___ ____    _____________          513  U.S. 150, 158  (1995) (holding that  consistent out-of-court          statements  may  be  admitted   to  rebut  a  charge   of  recent          fabrication  or  improper  influence or  motive  only  when those          statements  pre-date  the  charged  fabrication,  influence,   or          motive3).                 The issue  of the  Neves' pre-trial  cooperation was  raised          initially  on   cross-examination.    In   response  to   defense                                        ____________________               3    In Tome, the prosecution  introduced a child's  out-of-                       ____          court statements  concerning sexual abuse by her  father, who had          primary custody,  made while the  child was on vacation  with her          mother.  The  defense argued at trial that  the child's testimony          was motivated by her  desire to live with her mother.   The trial          court  admitted the statements,  but the Supreme  Court reversed,          reasoning that  their admission  was improper  because the  child          possessed the same  motive -- to live  with her mother --  at the          time she made  the out-of-court statements as  when she testified          in court.  513 U.S. at 150-55, 166.                                         -8-          questions,  Jorge  testified  that   he  first  made   statements          implicating himself,  defendant, and St.  Louis in the  fire only          after the police said they knew he was involved and  promised not          to charge him if he  cooperated.  Similarly, Joaquim explained on          cross-examination  that   he  made  out-of-court   statements  to          investigators only after they said they knew he had set the fire,          had   a  lengthy  criminal  record,  and  was  being  sought  for          deportation,   and  then  promised  that  they  would  bring  any          cooperation to the prosecutor's attention.               On  redirect  of   each  brother,  the  court   allowed  the          government  to  introduce  their  out-of-court oral  and  written          statements under  Rule 801(d)(1)(B).   The  oral statements  were          introduced  through  the  testimony of  a  government  agent; the          written statements  were admitted  as evidence.   The  government          argued,   and  the  court  agreed,  that  these  statements  were          admissible  to rebut  the motive  to  fabricate presented  by the          defense,  namely, incentive  by  the  brothers  to  reduce  their          punishment  for arson.   The defense  objected, arguing  that the          alleged motive to fabricate pre-dated these statements, rendering          Rule 801(d)(1)(B)  unavailable.  Defendant  renews this objection          on appeal.               Our review persuades us that  the defendant is correct.  The          motive to fabricate alleged by the defense -- desire for leniency          -- was the  same when the Neves brothers first  spoke with police          as at  the time  of  their testimony  at trial.   The  government          attempts  to  justify  use  of  the  out-of-court  statements  by                                         -9-          pointing out  that the  defense ascribed  additional motives  and          influences to the Neves that  did not exist when the out-of-court          statements were  made.   These  were, as  to Jorge,  that (1)  he          testified to obtain release from a six-week long incarceration as          a material witness; (2)  he hoped to receive in exchange  for his          testimony some dispensation  in a different -- and  new -- matter          pending against  him; (3)  his testimony was  influenced by  pre-          trial  preparation with  the agent  who interviewed  him.   As to          Joaquim, these were (1) anticipation of a lesser sentence under a          plea agreement that promised a  government request for a downward          departure  of his sentence following his  testimony at trial, and          (2) trial preparatory sessions with  the government.  While it is          true  that these allegations post-dated the out-of-court oral and          written statements, the overarching motive alleged by the defense          always was hope  of leniency,  and therefore,  the "new"  motives          amount to no more than smaller subsets of the larger theme.   For          instance,  the assertion that the prosecution directed the Neves'          testimony assumes that  the brothers  had a reason  to do as  the          government  requested,  namely,  hope of  a  reduced  sentence or          charge.  Likewise, Jorge's desire to obtain release  from custody          as a material witness was just a specific incarnation of his more          general desire  not to be jailed for his  role in the first fire.          See United  States v.  Albers, 93 F.3d  1469, 1482-84  (10th Cir.          ___ ______________     ______          1996)  (even where  the  circumstances  underlying  a  motive  to          fabricate  have changed somewhat  -- a formal  plea agreement was          entered after  the statement  was made,  but before  testimony at                                         -10-          trial -- prior  consistent statements remain inadmissible  if the          motive remains essentially the same).                 Because all the  defense allegations of motive  to fabricate          grew from  the same  foundation -- a  pursuit of leniency  -- the          brothers' out-of-court statements were erroneously admitted under          Rule 801(d)(1)(B).          B.   The Doctrine of Completeness               ____________________________               The   inadmissibility  of   these   statements  under   Rule          801(d)(1)(B) does  not end  our  discussion, as  we must  explore          whether the statements  could be properly admitted  on some other          ground apparent from  the appellate record.  Alzanki,  54 F.3d at                                                       _______          1008.  The government argues that Joaquim's prior statements4 are          admissible  under the doctrine  of completeness.   This doctrine,          codified  in  Fed.  R.   Evid.  106,  holds  that  an   otherwise          inadmissible recorded statement may  be introduced into  evidence          where one side has made  a partial disclosure of the information,          and full  disclosure would avoid  unfairness to the  other party.          See Irons v.  FBI, 880  F.2d 1446, 1453  (1st Cir. 1989);  United          ___ _____     ___                                          ______          States v. Range, 94 F.3d 614, 620 (11th Cir. 1996).           ______    _____               While defense counsel cross-examined Joaquim concerning  the          substance of his  written interview statement, and  did highlight          some inconsistencies between that  statement and Joaquim's  trial                                        ____________________               4    The  government makes  no  such  claim  as  to  Jorge's          statements, but  our analysis considers  the doctrine as  to both          defendants, as we may affirm on any legal ground.                                         -11-          testimony,5 there is  no evidence that -- and  the government has          made no  allegation that --  the introduction of these  pieces of          information   created   any    unfairness   or   potential    for          misimpression.    To  the  contrary,   the  government's  primary          argument is  that the written  statements bolster the  Neves' in-          court testimony.   The doctrine of  completeness does not  permit          the admission of  otherwise inadmissible evidence  simply because          one party has referred to a portion of  such evidence, or because          a   few   inconsistencies  between   out-of-court   and  in-court          statements  are revealed  through  cross-examination; rather,  it          operates  to  ensure   fairness  where   a  misunderstanding   or          distortion created  by the other party can only be averted by the          introduction of the full text of the out-of-court statement.  See                                                                        ___          United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997).  Here,          _____________    _____          the inconsistencies revealed were  minute insofar as  defendant's          basic  involvement is concerned, and the Neves clearly identified          defendant at trial as the mastermind of the Ames building arsons.          The doctrine  of completeness therefore does not  provide a basis          for introduction of the earlier statements.          C.   Harmless Error               ______________               The government argues  that, even if the introduction of the          statements  constitutes error,  the  error  was  harmless.    The          erroneous admission of hearsay requires reversal unless the error                                        ____________________               5    Among other minor inconsistencies, the defense  brought          out Joaquim's  earlier claims  that he was  solicited to  set the          fire by  defendant directly  rather than  by St. Louis'  brother,          that he received $2,500 rather  than $2,100 in payment, and that,          though both were together, he and not St. Louis lit the gasoline.                                         -12-          is shown  to be harmless beyond  a reasonable doubt.   See United                                                                 ___ ______          States v. Lombard, 72 F.3d 170, 187 (1st Cir. 1995).          ______    _______               By definition, prior consistent statements do not consist of          new   substantive   information.     Their   impact   comes  from          corroborating other, perhaps less compelling, evidence.  The form          in which the material  is presented to  the jury also may  affect          its weight  if legitimacy,  possibly otherwise  weak, is  thereby          attached to  the statements.   See United  States v.  Siegel, 717                                         ___ ______________     ______          F.2d  9,  19 (2d  Cir. 1983).    The question  we must  answer is          whether  corroboration resulting  from  the  introduction of  the          prior   consistent   statements  influenced   the  jury   to  the          defendant's detriment.   See  United States  v. Quinto, 582  F.2d                                   ___  _____________     ______          224,  236  (2d  Cir.  1978)  (finding  such influence  where  the          erroneously  admitted  out-of-court  written  statement  was   an          official  Internal  Revenue  Service  document,  and  a  lengthy,          detailed  "condensation of  the government's  whole case  against          defendant").               As   with   the  typical   admission  of   prior  consistent          statements,  the introduction of  the out-of-court statements did          not themselves supply  any new information to the  jury.  Rather,          the testimony  adduced at  trial was  complete and convincing  in          tying  defendant to the crime.   Not only did the Neves implicate          themselves,  St. Louis  and  defendant at  trial,  but on  cross-          examination,   they   revealed    having   reported   defendant's          solicitation of them to authorities months before trial.                                             -13-               Nonetheless,   both   the   oral  and   written   statements          unquestionably had some effect.  The government agent's testimony          about the oral  confessions lent a measure of  credibility to the          Neves' stories, if  only because a government agent  was shown to          have believed them.   Similarly, the written  statements, because          they were reduced  to print and reviewable  during deliberations,          added weight to the in-court  testimony.  See id. (describing the                                                    ___ ___          introduction   of  written   consistent   statements  as   "[t]he          government witnesses in  effect accompan[ying] the jury  into the          jury room.")   But, unlike the statements in  Quinto, the written                                                        ______          confessions  were not detailed, official documents from an agency          denoting authority.  Rather, they were fairly compact -- one just          over  one page,  the other,  just over  two pages  -- handwritten          statements   made  by  the  witnesses  themselves,  replete  with          grammatical  and  spelling  errors.     While  revealing   slight          inconsistencies, the out-of-court statements essentially amounted          to an abbreviation  of the Neves' in-court  testimony implicating          defendant.6      This  in-court   testimony,  supported   by  the          circumstantial   evidence  of  motive   and  car   transfer,  was          unwavering and unambiguous.                                          ____________________               6    On direct,  the prosecution failed to  elicit testimony          from Jorge  implicating defendant, but  on cross-examination, the          defense   several  times   led   Jorge   to  affirm   defendant's          involvement,  which testimony was confirmed on redirect.  Because          Jorge's   testimony  on direct  alone  did not  clearly implicate          defendant and did not reveal the prior statements to authorities,          our analysis would  be different if we had only this testimony to          consider.                                         -14-               The exculpatory  evidence presented by defendant was minimal          and largely  unsupported.  For  example, it  seems unlikely  that          defendant would sell a car at a loss, and $1,500 less than asking          price, without  first attempting to  sell it at a  price slightly          reduced  from $3,500.    In  addition, the  timing  of the  sale,          shortly after the second fire, was  highly suspect, and defendant          had an undeniable  economic motive to burn the  property, even if          the  jury  believed  his  claim that  his  parents  received  the          insurance proceeds.  Nor does defendant's explanation of how  St.          Louis came into $2,000 seem plausible; first, it assumes that St.          Louis had $2,000  to lend Joaquim for bail  and second, Joaquim's          mother testified  that she  had no knowledge  that St.  Louis had          contributed toward  Joaquim's bail.   Similarly, while  defendant          and his parents claimed that he had no financial interest  in the          Ames building,  the circumstantial  evidence presented  indicated          otherwise; for instance, his name was listed on all Ames building          legal documents, including the settlement check, and, despite his          initial testimony to the contrary,  he made at least one mortgage          payment on the property.  Finally, defendant's claim that Joaquim          would have  sufficient animosity  toward him to  set the  fire or          testify  against  him  seems  unlikely,  and  is  unsupported  by          evidence other than defendant's own  testimony.  As the  evidence          against defendant was plentiful and  in no way illuminated by the          out-of-court  statements, we  are persuaded  beyond a  reasonable          doubt   that  the  statements  did  not  influence  the  jury  to          defendant's detriment.   We emphasize that it is  the strength of                                         -15-          the evidence properly introduced  at trial implicating  defendant          that renders this serious error harmless.               That the statements  constituted unnecessary emphasis  makes          the government's efforts to introduce them particularly difficult          for  us  to understand.    Where  the law  so  clearly  bars such          statements and the evidence is so  weighty against the defendant,          the  government's arguments for their introduction strike us as a          serious and careless abuse of  the rules of evidence.  This  fact          notwithstanding, the  evidence compels us to find  that the error          was a legally harmless one.               III. ALLEGED ERRORS DURING CROSS-EXAMINATION AND SENTENCING               Defendant argues that  the district court erred  in limiting          his  cross-examination of Joaquim, that the prosecutor improperly          implied,  without basis,  that he  had  funded his  codefendant's          defense, and  finally, that  the court erred  in calculating  the          defendant's base offense level for  two arson counts.  We examine          each allegation in turn.               Defendant contends that  the trial court violated  his Sixth          Amendment right to confront adverse witnesses when it  refused to          allow him to question Joaquim  about his history of drug dealing.          A  trial court's restriction of cross-examination may be reversed          only for abuse of  discretion.  United States v.  Ovalle-Marquez,                                          _____________     ______________          36 F.3d 212, 217  (1st Cir. 1994).  To show  abuse, the defendant          must  demonstrate  that  the restriction  left  the  jury without          sufficient information to make a discriminating assessment of the                                         -16-          witness'  bias or  motives.   United States  v. Twomey,  806 F.2d                                        _____________     ______          1136, 1140 (1st Cir. 1986).                 Defendant  maintains that  the  testimony  should have  been          admitted because it supports the defense theory  that Joaquim set          fire  to the  Ames building  on  his own  initiative to  dissuade          defendant,   a   past   informant   for   the   Drug  Enforcement          Administration  ("DEA"),  from reporting  his  drug dealing,  or,          alternatively,  as revenge  because  he  believed  defendant  had          already  reported him.   During a  sidebar discussion,  the court          asked for  some offer  of proof from  defendant that  Joaquim had          reason to  believe that defendant  would report  him.   Defendant          offered  evidence  that,  before the  second  fire,  Joaquim told          defendant that he would soon be getting a great deal of money and          that Joaquim became  hostile when defendant questioned  him about          its source.   Joaquim,  however stated on  voir dire that  he had          been  unaware that defendant  was a DEA  informant, and defendant          offered no  evidence in  rebuttal.   Concluding that  defendant's          offered evidence was too tenuous, the court prohibited the cross-          examination about drug dealing.               In  light  of  the sparse  evidence  presented  by defendant          linking Joaquim's drug-dealing to a  motive to burn down the Ames          building,  no  showing  that  Joaquim  knew  that  defendant  had          reported drug dealers to  the DEA, and extensive opportunity  for          the  defense to  question  Joaquim as  to bias  and  motive on  a          variety of other issues for which there was an evidentiary basis,          we find that  the court did not abuse its discretion in excluding                                         -17-          this line of questions.       Defendant   also   challenges   the          court's failure  to grant a  mistrial after the  government asked          him whether he had  agreed to pay St. Louis' defense  costs.  St.          Louis'  attorney objected  to this  questioning  and requested  a          mistrial on the ground that the information on which it was based          was unreliable and misleading.  The court sustained the objection          but   denied  the  mistrial,   opting  instead  for   a  curative          instruction which  directed the  jury to  disregard the  question          because  the  government  offered no  evidentiary  basis  for it.          Although  joining  in  the request  for  a  curative instruction,          defendant's attorney did not join  in the request for a mistrial,          and at no time did he object to any portion of the instruction or          allege its insufficiency.                 Because  the defense  failed to  raise this issue  below, we          review it only  for plain error.  United States v. Crochiere, 129                                            _____________    _________          F.3d 233, 237 (1st Cir. 1997).  Even assuming the questioning was          improper, we conclude that the  court properly refused to grant a          mistrial,  and that  it presented the  jury with  a comprehensive          curative    instruction,    wholly   satisfactory    under    the          circumstances.  "Declaring  a mistrial is a last  resort, only to          be  implemented if  the  taint  [from  improper  information]  is          ineradicable, that is, only if  the trial judge believes that the          jury's  exposure to  the  evidence  is  likely  to  prove  beyond          realistic hope of  repair."  United States v.  Sepulveda, 15 F.3d                                       _____________     _________          1161, 1184 (1st  Cir. 1993).   In this case, the  questioning was          brief, and the  judge was careful to explain to the jury that (1)                                         -18-          the question was  improper; (2) there was  no offered evidentiary          basis  for the  facts  suggested  by the  question;  and (3)  the          question should be  disregarded "entirely."   As we presume  that          juries follow  the court's  instructions, and  defendant has  not          shown  that  the  questioning resulted  in  serious  prejudice as          required  to overcome the  presumption, United States  v. Rullan-                                                  _____________     _______          Rivera, 60  F.3d 16,  18 (1st  Cir. 1995),  we conclude that  the          ______          court did not commit plain error.                Finally, defendant contends that the court erred in using  a          base offense level of twenty-four rather than twenty on the arson          counts.   The higher level applies  if the defendant can be found          to have knowingly created a  substantial risk of death or serious          bodily  injury; the  lower  level  applies  where  the  "knowing"          element is not met.  U.S.S.G.    2K1.4(a)(1), (2).  Defendant was          convicted for two separate acts  of arson, based on evidence that          he hired  others  to  burn  down  a  residential  and  commercial          property to collect insurance proceeds.  It does not follow that,          as defendant contends, because the fires were carried forth in an          "amateurish"  fashion, his  effort to  burn a  building in  which          people  lived was  anything other  than a  knowing creation  of a          substantial risk of death or serious bodily injury.  We therefore          reject the argument as without merit.               For the reasons stated above,  we affirm the judgment of the                                                 affirm                                                 ______          district court.                                         -19-
