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    UNITED STATES, Appellee, v. James L. MITCHELL, Defendant-Appellant.
    No. 94-2226.
    United States Court of Appeals, First Circuit.
    Heard Jan. 10, 1996.
    Decided June 5, 1996.

      Walter B. Prince, by Appointment of the Court, with whom Peckham, Lobel, Casey, Prince & Tye was on brief, Boston, MA, for appellant.
    Kevin J. Cloherty, Assistant United States Attorney, Donald K. Stern, United States Attorney, and Sheila W. Sawyer, Assistant United States Attorney, were on brief, Boston, MA, for appellee.
    Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
   TORRUELLA, Chief Judge.

The defendant in this arson case stands convicted by a jury of conspiracy and arson under 18 U.S.C. §§ 371 and 844(i), respectively. For the reasons stated herein, we affirm the decision of the district court on all points.

I. BACKGROUND

On the evening of February 6, 1989, the Boston Fire Department responded to a multiple-alarm fire at 295-297 Franklin Street (the “Building”), in Boston, which was owned by Jack Gateman (“Gateman”). At that time, the defendant, James L. Mitchell (“Mitchell”), was a tenant occupying the Building’s second, third and fourth floors, where he and his partner, Allen Gallant (“Gallant”), ran a private social club known as “Club 297” (the “Club”). The Club had been ordered closed by the City of Boston for violation of City codes in January 1989. On the day of the fire, several men, including Ronald Wallace (“Wallace”), had been working on repairs at the Club. Wallace testified at trial that during the course of that day Mitchell told him he would pay him $11,000 to set fire to the Building, making an initial payment. Mitchell returned to his home in Vermont, while Wallace returned to the Club. Mitchell called the Club from his car telephone, and spoke to Wallace, who testified that Mitchell asked him whether he would set the fire. After the phone call, Wallace went to the fourth floor of the Building and set some mattresses stacked there on fire. He and the other men in the Club fled the Building.

Over the next months, Mitchell wired Wallace sums of money through Western Union. Evidence was entered that Gallant reported the loss the Club suffered in the fire to the Club’s insurance broker, and pursued the claim through an insurance broker. Testimony at trial established that some $59,400 was paid out on the Club’s policies, most of which went to the Internal Revenue Service.

In November 1991, Mitchell was charged under a twenty-two count indictment with conspiracy, arson, use of fire to commit a felony, and wire fraud. He was prosecuted on six of those counts. After a jury trial, he was found guilty on the conspiracy and arson charges, but acquitted of the remaining counts. This appeal ensued.

II. ADMISSION OF SEIZED EVIDENCE

The district court adopted the report and recommendation of the magistrate judge, who found the following facts. See United States v. Martínez-Molina, 64 F.3d 719, 723 (1st Cir.1995) (“We recite the facts adduced at a suppression hearing in the light most favorable to the district court’s ruling to the extent that they derive support from the record and are not clearly erroneous.”). On the night of the fire, Lieutenant Paul R. LeBlanc (“Lt. LeBlanc”) of the Fire Investigation Unit reported to the scene of the fire. After it was “put down,” within an hour or so of being reported to the Fire Department at 9:15 p.m., Lt. LeBlanc entered the premises, along with two associates, in order to determine the cause and origin of the fire. He seized carpet samples and sections of stair rises, later entered in evidence at trial. Irregular burn patterns prompted him to suspect that the fire was not accidental, and that it originated on the fourth floor. Adequate photographs could not be taken, however, since there was no light and the water on the floor precluded reliable flash photography. The following morning, between 8:00 and 9:00 a.m., Lieutenant Roy Burrill (“Lt. Bur-rill”), also of the Fire Investigation Unit, was sent to the site without a warrant. He seized two sections of flooring from the fourth floor. A third search was conducted by First Security Company, a private investigation company hired by Gateman to determine the cause of the fire. They also seized samples from the fourth floor.

On appeal, Mitchell challenges the trial court’s admission of the evidence seized by Lt. Burrill, on the basis that there were no exigent circumstances justifying his entrance without a warrant.

A. Waiver

The United States claims that Mitchell waived the right to appeal the admission of this evidence by failing to object within ten days to the magistrate judge’s report and recommendation on the defendant’s Motion to Suppress the Physical Evidence. See Rule 3(b), Rules for United States Magistrates in the United States District Court for the District of Massachusetts. As the report and recommendation of the magistrate judge itself pointed out, we have repeatedly indicated that failure to comply with Rule 3(b) precludes review by this court. See, e.g., United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982) (“There can be no appeal from a magistrate’s report and recommendation unless objections are filed thereto.”).

Mitchell now maintains that his objection to the evidence seized by Lt. Burrill has been saved from waiver despite his failure to object because, subsequent to the report and recommendation, the district court issued an order stating it would reconsider the suppression issue as regards the evidence seized by Lt. Burrill. In that order, the district court requested, among other things, that Mitchell identify the portions of memoranda and evidence the court should consider in deciding the motion to suppress the evidence seized. All of the seized evidence offered was admitted at trial. We need not delve into the intricacies of whether the district court order effectively revived Mitchell's motion to suppress the evidence seized by Lt. Burrill, however, as we find that the district court did not err in admitting the disputed evidence.

B. Analysis of Search and Seizure Issues

Traditionally, in the context of a motion to suppress, we have reviewed the district court’s findings of fact, as well as any mixed findings of law and fact, for clear error. See United States v. Schiavo, 29 F.3d 6, 8 (1st Cir.1994); United States v. Rodríguez-Morales, 929 F.2d 780, 783 (1st Cir.1991), cert. denied, 502 U.S. 1030 (1992). A recent Supreme Court case, however, determines that “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. United States, 116 S.Ct. 1657, 1663 (1996) (noting that findings of historical fact are reviewed only for clear error and that “due weight” should be given “to inferences drawn from those facts by resident judges and local law enforcement officers”). Therefore, to the extent that our analysis turns on making those determinations, our review is de novo, as is our review of the district court findings of law. See Martínez-Molina, 64 F.3d at 726.

Our analysis is framed by two Supreme Court decisions: Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). The basic Fourth Amendment framework is clear. “Courts have consistently followed ‘one governing principle’ in interpreting [the Fourth Amendment]: except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a ‘valid search warrant.’ ” Mann v. Cannon, 731 F.2d 54, 58 (1st Cir.1984) (quoting Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967)). Nonetheless, “a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U.S. at 509, 98 S.Ct. at 1949. Mitchell’s core contention here is that there were no such exigent circumstances in the present case, and so Lt. Bumll’s warrantless search was unconstitutional, and the evidence he seized should have been suppressed.

The analysis in Michigan v. Tyler controls our decision. In Tyler, a fire broke out in a furniture store shortly before midnight; the fire had been reduced to “smoldering embers” when the Fire Chief reported to the scene at 2:00 a.m. Id. at 501, 98 S.Ct. at 1946. He concluded that the fire was possibly the result of arson, and called a police detective, who took some photographs, but “abandoned his efforts because of the smoke and steam.” Id. at 502, 98 S.Ct. at 1946. After a brief survey through the rest of the building to look for further evidence of the cause of the fire, the Chief and police detective left the site. Four hours later, the Chief returned with the Assistant Chief, whose task it was to determine the origin of all fires in the township. The fire was out, and the building was empty. They quickly left, returning with the police detective around 9:00 a.m. They found suspicious burn marks, not visible earlier, and took samples of carpet and stairs.

Rejecting the premise that “the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame,” id. at 510, 98 S.Ct. at 1950, the Court found the two searches conducted on the morning after the fire were constitutionally permitted. After noting that the investigation on the night of the fire was hindered by the darkness as well as the steam and smoke, the Court found that the fire officials

departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first____

Id. at 511, 98 S.Ct. at 1951.

The facts here closely parallel those of Tyler. Lt. LeBlanc entered the scene after the fire was “put down,” and within roughly an hour of the time the fire was reported, in order to determine the cause and origin of the fire. The investigation was hampered by the lack of light and by the presence of water on the floor: photographs could not be taken. The following morning, between 8:00 and 9:00 a.m., roughly twelve hours after the fire had been reported, Lt. Burrill entered the scene in order to take additional samples. He removed the water and debris from the fourth floor, and then seized two sections of flooring, the challenged evidence. These facts speak for themselves: Lt. BurrilTs search and seizure was clearly a continuation of the first search by Lt. LeBlanc. Unlike in Tyler, of course, the same individual did not conduct both searches, but both fire officials were of the same Fire Investigation Unit. Ultimately, as in Tyler, the “investigation of the fire’s origin was [ ] temporarily suspended on account of the conditions on the scene and resumed at the first opportunity when the conditions hampering the investigation subsided.” Clifford, 464 U.S. at 301, 104 S.Ct. at 650.

That Lt. BurrilTs morning entrance onto the premises was in fact a continuation of the nighttime search is underscored by the distinctions the Court drew between its decision in Clifford and its Tyler holding. In Clifford, a fire broke out in a private residence and the fire department reported to the scene at about 5:42 in the morning. The fire was extinguished, and the fire officials and police left the premises at 7:04 a.m. At about 1:00 p.m. that afternoon a fire investigator arrived at the scene, having been informed that the fire department suspected arson. Despite the fact that the house was being boarded up on behalf of the out-of-town owners, the Cliffords, and despite their knowledge that the Cliffords did not plan to return that day, the fire investigator and his partner searched the house. After determining that the fire had been set in the basement, and how, the investigators searched the entire house, taking photographs. Id. at 289-91, 104 S.Ct. at 645-46. In finding that the challenged search by the fire investigator was not a continuation of an earlier search, as in Tyler, and in distinguishing between the two eases, the Court noted:

Between the time the firefighters had extinguished the blaze and left the scene and the arson investigators first arrived about 1:00 p.m. to begin their investigation, the Cliffords had taken steps to secure the privacy interests that remained in their residence against further intrusion. These efforts separate the entry made to extinguish the blaze by that made later by different officers to investigate its origin. Second, the privacy interests in the residence—particularly after the Cliffords had acted—were significantly greater than those in the fire-damaged furniture store [in Tyler ], making the delay between the fire and the mid-day search unreasonable absent a warrant, consent, or exigent circumstances.

Id. at 296, 104 S.Ct. at 648. These facts play no role here: there was no evidence of an effort to secure the bumed-out premises, and the heightened privacy interests a property owner has in a home are not present. See id. at 296, 104 S.Ct. at 648 (noting that “privacy interests are especially strong in a private residence.”). Unlike the private dwelling in Clifford, this was a commercial property. Mitchell points out that he was in Vermont at the time of the fire in the premises he had leased; however, he made no effort to arrange for the premises to be closed off, unlike the defendants in Clifford, who were similarly away from their home. These facts permitted the magistrate judge to conclude that the search by Lt. Burrill was merely a continuation of Lt. LeBlanc’s search, and, thus, that “there was simply nothing unreasonable, in Fourth Amendment terms, to [sic] reentering the building and completing the already commenced investigation of the cause and origin of the fire when circumstances—i.e., adequate lighting provided by daylight and removal of the debris and water—first reasonably permitted.” (Report and Recommendation, page 11).

In Clifford the Court laid out three factors for analyzing the constitutionality of warrant-less searches of fire-damaged premises:

whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; whether exigent circumstances justify the government intrusion regardless of any reasonable expectation of privacy; and, whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity.

Clifford, 464 U.S. at 291, 104 S.Ct. at 646; see Mann, 731 F.2d at 59-60 (weighing the Clifford factors in evaluating warrantless entry onto private premises for health and safety reasons). First, as noted, Mitchell can have had few privacy interests in the Building. “Privacy expectations will vary with the type of property, the amount of fire damage, the prior and continued use of the premises, and in some cases the owner’s efforts to secure it against intruders.” Clifford, 464 U.S. at 292, 104 S.Ct. at 646; see Mann, 731 F.2d at 59 (noting that privacy considerations in virtually abandoned residence used as storehouse were minimal).

Mitchell focuses his argument on the second factor, exigent circumstances. As he notes, at the time Lt. Burrill entered the grounds, the fire was out, there were no people in the building, and there was no danger of further damage, or of flammable materials being present. However, the Court has clearly established that “officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished.” Tyler, 436 U.S. at 510, 98 S.Ct. at 1950; see Clifford, 464 U.S. at 293, 104 S.Ct. at 647 (noting that “[bjecause determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.”). Because the magistrate judge properly found that Lt. Burrill’s entrance onto the premises was in fact a continuation of Lt. LeBlanc’s search, and there is no question as to that search’s constitutionality, Mitchell’s exigent circumstances argument fails. Indeed, this is precisely the level of exigency—the fire was extinguished, the building was empty, and conditions had hampered investigations the night before—whose constitutionality the Supreme Court upheld in Tyler.

The third Clifford factor examines the purpose of the search. Here, the district court adopted the magistrate judge’s finding that Lt. LeBlanc entered the site to determine the cause and origin of the fire, and that Lt. Burrill “was dispatched to the scene for the purpose of taking additional samples.” The lower court concluded that there was no showing that the fire department suspected arson when Lt. Burrill was sent to the scene of the fire. Indeed, Lt. LeBlanc was only one of three investigators on the scene, and no evidence was presented that the other investigators shared his opinions, much less that any of them communicated their impressions to Lt. Burrill.

In his brief, however, Mitchell seems to challenge that finding, stating that Lt. Bur-rill “entered the premises without a warrant specifically to look for and seize evidence of arson.” (Brief of Appellant, p. 14). Mitchell’s counsel contended at oral argument that the magistrate judge’s finding that Lt. Bur-rill did not suspect arson was improbable, and that common sense should indicate that Lt. LeBlanc communicated his findings to Lt. Burrill. We disagree. Lt. Burrill testified that as soon as he started his shift he was sent to the scene, and that “[f]requently after a fire has occurred at night, they send the day crew to the scene ... because of the benefit of daylight, it [is] easier to get samples.” (Day 1, p. 96). Lt. LeBlanc, in turn, testified that the Fire Investigation Unit reported to the fire because it was a multiple-alarm fire, to which the Unit’s response is automatic. Based on this testimony and our deferential standard of review, we see no reason to find that the court erred in its finding of fact.

Based on the above, we affirm the district court’s refusal to suppress the evidence from Lt. Burrill’s search.

III. ADMISSION OF THE TAPED CONVERSATIONS

Prior to and after the fire, Mitchell tape-recorded a series of telephone conversations he had with other people, including Wallace and Gallant, without their consent or knowledge. Excerpted portions of three of these tapes were admitted at trial. On appeal, Mitchell argues that the district court committed reversible error in limiting the use of the tapes, for two reasons. First, he maintains, the taped conversations were admissible to show bias and inconsistent testimony. Second, he contends that all the tapes, not just fragments of them, were admissible for purposes of impeachment. As he does not specify, in either his brief or at oral argument, which tapes he actually seeks to enter, why each portion should be played, or the purpose for which each excerpt not previously admitted should now be allowed, we limit our discussion to those tapes actually entered at trial.

A. The Legal Framework

A party waives a right when it makes an ‘“intentional relinquishment or abandonment’ ” of it. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); see United States v. Marder, 48 F.3d 564, 571 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995). However, if a defendant merely fails to make a timely assertion of that right, only forfeiture results. Olano, 507 U.S. at 733, 113 S.Ct. at 1777; see Fed.R.Crim.P. 52(b). The distinction is a key one, for

[m]ere forfeiture, as opposed to waiver, does not extinguish an “error” under Rule 52(b).... If a legal rule was violated during the District Court proceedings, and if the defendant did not waive the rule, then there has been an “error” within the meaning of Rule 52(b) despite the absence of a timely objection.

Id. at 733-34, 113 S.Ct. at 1777. In short, where there was forfeiture, we apply a plain error analysis; where there was waiver, we do not. See United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir.1994) (noting that the “ ‘Plain Error Rule’ may only be invoked in instances of ‘forfeited-but-reversible error,’ .... because if there has been a valid waiver, there is no ‘error’ for us to correct.”); see, e.g., United States v. de la Cruz-Paulino, 61 F.3d 986, 995 (1st Cir.1995) (holding that where defendant did not object to prosecution’s use of taped conversations, the issue was not preserved for appeal, but plain error analysis applied); Marder, 48 F.3d at 571 (holding that, because there was no waiver, plain error analysis applied). See generally, United States v. Taylor, 54 F.3d 967, 972-73 (1st Cir.1995) (stating the policy reasons and rationale for the raise-or-waive rule).

B. The Tapes

1. The February 7, 1989 Tape

Mitchell recorded two conversations between himself and Wallace on February 7, 1989. Defendant sought to enter portions from that tape as evidence of prior inconsistent statements. At a hearing on the admissibility of the tape outside of the jury’s presence, the following colloquy ensued (Mr. Prince is the defense counsel, Mr. Cloherty the prosecutor).

THE COURT: .... Mr. Cloherty, what is the Government’s position on playing all of the February 7 tape with the exception of the two edits we discussed?
MR. CLOHERTY: We would want the entire tape played with the exception of those edits.
THE COURT: And that remains agreeable to the defendant?
MR. PRINCE: Yes, Your Honor, and Mr. Cloherty and I will edit the conversation.

(Day 5, pp. 112-13). At the start of the next day of trial, the court asked the attorneys whether the tapes had been “edited to [their] mutual satisfaction”; Mitchells counsel did not disagree when the prosecution stated that they had. (Day 6, p. 5). Nor did he object when the tapes were offered.

Clearly, Mitchell has waived any objection to the court’s failure to play the entire tape. Not only did he not object to the use of the tape, but he affirmatively stated that he was agreeable to the use of the edited tape—there was a “direct inquiry from the court” and an “unequivocal assent” from counsel for the defense. Marder, 48 F.3d at 571 (holding that defendant did not waive issue where there was no such clear colloquy, but merely a failure to object). That action raises his later silence from mere forfeiture to waiver.

2. The February 1, 1989 Tape

Mitchell next sought to introduce excerpts from a conversation taped between Mitchell and Gallant prior to the fire. He offered the dialogue, which discussed re-opening the Club, as evidence of his then-existing state of mind. See Fed.R.Evid. 803(3). The court stated that the entire tape could not be played, on the basis that most of it was irrelevant and inadmissible. However, the next day, based on a transcript indicating what excerpts the defendant wanted to use, and which of those the government objected to, the court admitted all the excerpts Mitchell requested. Mitchell now appears to contend that the entire tape should have been admitted.

Had Mitchell merely submitted the entire tape, and the court only admitted excerpts, the defense’s failure to object that the remainder of the tape was not submitted to the jury may only have resulted in forfeiture, Olano, 507 U.S. at 733, 113 S.Ct. at 1777, as there may have been no “ ‘intentional relinquishment or abandonment of a known right,’ ” and so no waiver. Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). But the defense’s actions went beyond this: Mitchell took an active role in limiting the portions considered by the district court by providing the excerpts himself. Ultimately, the court admitted all the excerpts he submitted. This, paired with his failure to object, raises his acts to the level of waiver. See Marder, 48 F.3d at 570-71. Indeed, Mitchell does not offer any argument as to why we should not deem the portions not actually offered as waived. We will not look beyond the waiver and ask whether the court committed plain error.

3. The February 11, 1989 Tape

The third tape discussed at trial was a February 11, 1989, recording of Mitchell’s conversation with his partner Gallant about whether the Club had insurance at the time of the fire. At a hearing on the tape’s admissibility prior to Gallant’s testimony, the court characterized it as “a really transparent effort by the defendant, Mr. Mitchell, knowing that he was accused of setting the arsons [sic], ... [to say] all sorts of things that would be very inadmissible and also things of doubtful admissibility on the stand.” (Day 9, p. 7). Accordingly, the court ruled that the tape was inadmissible to prove state of mind under Fed.R.Evid. 803(3), as the conversation occurred after the fire. The defense objected on the basis that the tape was in fact relevant to the defendant’s state of mind regarding the alleged wire fraud, and the court reconsidered its ruling. Accordingly, it requested a marked-up transcript of the portions of the tape the defense sought to admit on that basis, so it could “see what is at issue.” (Day 9, p. 141).

The next day, the court held that the first of the two marked pages defendant submitted could be admitted; it was read to the jury later that day, without a limiting instruction. The court also allowed the second submitted page to be entered, but as a prior inconsistent statement, and gave a limiting instruction to the jury. Defense counsel did not object to the court’s rulings. For the same reasons discussed above, as the only portions of the tape the defense actually submitted to the court were entered, and there was no objection entered, we find that the defense waived any appeal that the remainder of the tape should have been admitted. See id.

As we find that the defendant has waived the right to argue that these three tapes should have been admitted in their totality, we need not consider his contentions that they were admissible to show bias and inconsistent testimony or for purposes of impeachment.

IV. THE JURY INSTRUCTIONS

Mitchell challenges the district court’s jury instructions regarding the conspiracy charge. We review the propriety of jury instructions for abuse of discretion. United States v. Cassiere, 4 F.3d 1006, 1022 (1st Cir.1993); United States v. Campusano, 947 F.2d 1, 5 (1st Cir.1991). Accordingly, “[w]e must look at the instructions in light of the evidence and determine whether they ‘fairly and adequately submit[] the issues in the ease to the jury.’ ” United States v. Picciandra, 788 F.2d 39, 46 (1st Cir.) (quoting United States v. Fischbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 and sub nom. Sargent Elec. Co. v. United States, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 145 (1985)), cert. denied, 479 U.S. 847, 107 S.Ct. 166, 93 L.Ed.2d 104 (1986). For the reasons stated below, we find the district court did not abuse its discretion in making its instructions to the jury.

Count I of the indictment alleged that Mitchell conspired with Wallace to violate the arson statute, see 18 U.S.C. § 844(i), and the wire fraud statute, see 18 U.S.C. § 1343. The charge was made in the conjunctive. The district court, however, instructed the jury in the disjunctive:

The first count charges a conspiracy to commit arson and a conspiracy to commit wire fraud.
In order to prove the defendant is guilty of Count 1, the government doesn’t have to prove that any demonstrated conspiracy had both laws or a violation of both laws as its object.
It’s sufficient that the government prove either the conspiracy to commit arson or the conspiracy to commit wire fraud.
But you have to unanimously agree. That is essential. When you deliberate, all 12 of you have to agree on everything. So it would be insufficient if six of you thought there was a conspiracy to commit arson and six of you thought there was a conspiracy to commit wire fraud. You have to unanimously agree, or try to.
But if you agree unanimously that a conspiracy to violate one of those statutes has been proven beyond a reasonable doubt, that’s sufficient to find the defendant guilty on Count 1.

(Day 12, pp. 159-60). Mitchell contends that the court’s instruction that finding him guilty of one of the two conspiracies is sufficient impermissibly broadened the allegations in Count I so as to create, in effect, two conspiracy counts.

In answering defendant’s argument we take our lead from the Supreme Court. In Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), the petitioner was charged with a conspiracy alleged to have two objects, but was implicated in only one of those. The court instructed the jury that it could return a guilty verdict against petitioner if it found that she had participated in either of the two objects, and the jury returned a general verdict of guilty, without specifying on which count it relied. Id. at 47-48, 112 S.Ct. at 468-69. Faced with the question whether the verdict should be set aside because the evidence was insufficient for one of the objects, the Court affirmed the verdict. In so doing, it relied on a common law rule dating back to pre-revolutionary England stating that “ ‘[w]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is sufficient with respect to any one of the acts charged.’” Id. at 56-57, 112 S.Ct. at 473 (quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970)); see United States v. Nieves-Burgos, 62 F.3d 431, 436 (1st Cir.1995) (discussing Griffin and the relevant case law). Accordingly, in United States v. Lanoue, 71 F.3d 966 (1st Cir.1995), where the district court instructed the jury “that it could convict Lanoue of conspiracy if it found he conspired to commit any one or more of six object offenses” listed in the conspiracy count, id. at 979, we held that, as there was sufficient evidence for one of the object offenses, we did not need to decide whether there was sufficient evidence of a conspiracy to commit any or all of the other object offenses, id. at 982-83 (holding that the fact that there was sufficient evidence allowed a new trial despite vacation of the conspiracy count on other grounds). Likewise, in United States v. Nieves-Burgos, we applied Griffin to uphold the jury verdict where there was sufficient evidence to find defendant guilty for only one of three violations alleged in one charge. 62 F.3d at 436.

Mitchell does not frame his argument in terms of Griffin and its progeny, however. Rather, he seems to make two intertwined arguments. First, he contends that Count I must be read to charge him with only one offense, namely, agreeing to burn the Building and using interstate wire facilities to transfer money to Wallace. The instructions, he maintains, expanded this offense into two, opening him up to the danger of being convicted on facts different from those charged. A “court may not substantially amend the indictment through its instructions to the jury.” United States v. Stewart Clinical Lab., Inc., 652 F.2d 804, 807 (9th Cir.1981) (reversing a conviction where the indictment charged defendants with violating one subsection of 42 U.S.C. § 1396h(b)(2) but the government’s case proved a violation of another); see also United States v. Trexler, 474 F.2d 369, 371 (5th Cir.) (stating that “[a]s a general rule, the Government cannot broaden an indictment so as to convict the defendant on different facts from those charged in the indictment”), cert. denied, 412 U.S. 929, 93 S.Ct. 2759, 37 L.Ed.2d 157 (1973). As a result of this broadening of the indictment, he states, the Government was allowed to argue a “grab bag” of theories and ask the jury to guess as to which agreement Mitchell contemplated.

This argument is substantially answered by our discussion of Griffin above. It is manifest that the district court instruction that the jury could find Mitchell guilty on Count I if the government proved either of the objects of the conspiracy complies with Griffin. See Griffin, 502 U.S. at 56-57, 112 S.Ct. at 472-73. Indeed, an instruction that both objects of the multi-object conspiracy had to be proved would go against the cited ease law. As the district court did not err in presenting the charge in this manner, the fairness and integrity of the proceedings were not affected, contrary to Mitchell’s contention otherwise. Similarly, Mitchell’s argument that the instructions allowed the jury to use conjecture as to his role is quickly dismissed, as the instructions clearly limit the jury to the indictment, requiring them to reach unanimity to find guilt on either of the two objects of the conspiracy. Finally, to the extent that Mitchell’s position is that the instructions were inconsistent with the Government’s argument at trial, he is on shaky ground given that from the start of the trial the Government approached the conspiracy charge as a multiple object conspiracy, as demonstrated by its opening argument (describing the arson as “the first object of the conspiracy” and separately outlining the alleged wire fraud (Day 3, pp. 55-58)) and proposed jury instructions (“you need not ... find that the defendant ... conspired to commit both arson and wire fraud.”).

Second, although he never states it in so many words, Mitchell seems to contend that there was insufficient evidence to prove the wire fraud charge of the conspiracy, and thus the jury verdict was against the weight of the evidence. As we have established that “ ‘a guilty verdict on an indictment charging several acts in the conjunctive, ... stands if the evidence is sufficient with respect to any one of the acts charged,’ ” Griffin, 502 U.S. at 56-57, 112 S.Ct. at 473 (quoting Turner, 396 U.S. at 420, 90 S.Ct. at 654), and Mitchell does not contest the sufficiency of the evidence as to the charge of conspiracy to commit arson, this position must also fail.

V. THE MOTION FOR ACQUITTAL

Mitchell's next contention also centers on the evidence—or lack thereof—regarding the alleged conspiracy to commit wire fraud. 18 U.S.C. § 1343. He posits that the district court committed reversible error in denying his motion for judgment of acquittal because there was no evidence that the defendant filed, or caused to be filed, an insurance claim. As he does not specify which count or counts he contends should be reversed, we focus on Count I, the conspiracy count, as this evidence clearly goes to the insurance fraud claim, not the arson claim. We review Mitchell’s “challenge to the evidentiary sufficiency of the government’s case by examining “whether the total evidence, taken in the light most amicable to the prosecution, together with all reasonable inferences favorable to it, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant was guilty as charged.’” United States v. Castro-Lara, 970 F.2d 976, 979 (1st Cir.1992) (upholding district court’s denial of motion for judgment of acquittal), cert. denied sub nom. Sarraff v. United States, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993).

Essentially, Mitchell argues the following. To prove wire fraud the Government had to prove: “1) a scheme to defraud by means of false pretenses, 2) the defendant’s knowing and willful participation in the scheme with the intent to defraud, and 3) the use of interstate wire communications in furtherance of the scheme.” Cassiere, 4 F.3d at 1011. The Government failed to prove the first prong of the test because it did not show that Mitchell made any false representations to the insurance carriers, and so there was no false pretense. Instead, Gallant was responsible for preparing and presenting the insurance claim and proof of loss to the insurers. The prosecution did not show Mitchell knew or reasonably foresaw the filing of the claims as the consequence of his conduct. Since the Government’s theory was that Mitchell hired Wallace to burn the Building because it had been closed by the city and he could no longer operate it, it was essential to the Government’s claim to show that Mitchell knew the Club was insured and made a claim for the proceeds, or caused another to do so. However, Gallant testified that he made the claim without Mitchell’s assistance, and that he actually had a dispute with Mitchell as to whether a claim should be processed. The only evidence that Mitchell filed an insurance claim was a letter from an Edward Garguilo to David Collins, the insurance broker, but there was no evidence connecting Mitchell to this letter, and no evidence showing that the letter formed the basis for a request for payment, and so it cannot form the basis for an argument that Mitchell attempted to consummate the fraud.

Even if we accept all of his contentions as true, at most they establish that there was insufficient evidence to find Mitchell guilty of the wire fraud object of the conspiracy charge. As we have noted, “ ‘if a jury returns a guilty verdict on an indictment charging several acts in the conjunctive,’ ” as the arson and wire fraud charges were made here, “ ‘the verdict stands if the evidence is sufficient with respect to any one of the acts charged.’” Griffin, 502 U.S. at 56-57, 112 S.Ct. at 473 (quoting Turner, 396 U.S. at 420, 90 S.Ct. at 654); see, e.g., Lanoue, 71 F.3d at 982-83; Nieves-Burgos, 62 F.3d at 436. As Mitchell does not argue that there was insufficient evidence for the arson charge, we deem that he has waived the opportunity to do so. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (applying “the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). Thus the court did not err in refusing to grant the motion to acquit.

VI. MITCHELL’S SENTENCE

Mitchell's final contention on appeal is that the district court erred by enhancing his Basic Offense Level (“B.O.L.”) by four points: two points for his role in the offense as an organizer, leader, manager or supervisor, see U.S.S.G. § 3B1.1(c), and two points for obstruction of justice, see U.S.S.G. § 3C1.1. After noting our standard of review, we address each of these enhancements in turn. For the reasons given below, we affirm the sentence given by the district court.

A. Standard of Review

“When we review a district court’s application of a sentencing guideline, we utilize a bifurcated process. First, we review the guideline’s legal meaning and scope de novo. Next, we review the court’s factfinding for clear error, giving due deference to the court’s application of the guidelines to the facts.” United States v. Thompson, 32 F.3d 1, 4 (1st Cir.1994) (citations omitted). “ ‘Due deference’ in this context means that, absent mistake of law, we will review the sentencing court’s fact based application of the guidelines only for ‘clear error.’ ” United States v. McDonough, 959 F.2d 1137, 1141 (1st Cir.1992) (quoting United States v. Martínez, 922 F.2d 914, 925 (1st Cir.1991)).

B. Manager or Supervisor of a Criminal Activitg

The district court enhanced MitcheU’s B.O.L. because it found he acted as Wallace’s organizer in committing the crime. See U.S.S.G. § 3Bl.l(c). In order to apply section 3Bl.l(c), a court must first determine that there were at least two participants in the crime. See United States v. Akitoye, 923 F.2d 221, 227 (1st Cir.1991). Here, the two participants were Wallace and Mitchell himself. See United States v. Morillo, 8 F.3d 864, 872 n. 13 (1st Cir.1993) (“The defendant himself may be counted in determining the overall number of participants.”).

“The second requirement for the application of section 3Bl.l(c) is that the defendant exercised control over, or was otherwise responsible for organizing the activities of, at least one other individual in committing the crime.” Akitoye, 923 F.2d at 227. Here, the district court found at sentencing that Mitchell hired Wallace to bum the Club, as he was concerned that the City of Boston would not let the Club reopen, and he wanted to collect the insurance proceeds. It also found that Mitchell called the Club the night of the fire and, in effect, instructed Wallace to start the fire. Mitchell challenges these factual findings. He notes that Wallace testified that, when Mitchell called him at the Club on the night of the fire, he asked “are you going to do it?” The inference, Mitchell argues, is that Wallace was a free agent. Indeed, he maintains, their contact was almost casual, and it was up to Wallace to bum the Club or not. His argument is of no avail. There was evidence at trial that Mitchell initiated discussion of the arson, recruited Wallace to carry it out, told him specifically how to do it, and promised to pay him. Given the record, we find no clear error in the district court’s factual findings. Compare United States v. Balogun, 989 F.2d 20, 23 (1st Cir.1993) (finding no clear error in trial court’s application of § 3Bl.l(e) where the facts showed defendant initiated the conspiracy, received more money than his co-eonspirator, paid his co-conspirator for his cooperation in the scheme, and used cars fraudulently registered to the co-conspirator to stage accidents) with United States v. Castellone, 985 F.2d 21, 26 (1st Cir.1993) (refusing to uphold application of § 3Bl.l(c) where the district court did not find defendant controlled anyone else’s movements) and United States v. Fuller, 897 F.2d 1217, 1221 (1st Cir.1990) (holding that “in the absence of any evidence that [defendant] exercised control over [other] persons or was otherwise responsible for organizing them in the commission of the offense, the mere fact that [defendant] had dealt with a large quantity of marijuana does not support a finding that he was an organizer, leader, supervisor, or manager” in conspiracy to distribute marijuana).

Mitchell seeks to rely on the Second Circuit’s decision in United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir.1993), in arguing that section 3Bl.l(a) does not apply here. In that case, the court found that a drug dealer who asked his wife to give a package to buyers was not an organizer under section 3B1.1, since it was an isolated occurrence. Mitchell relies on McGregor to argue that the isolated request for assistance he made to Wallace did not rise to the level the Guideline requires, noting that there was no evidence that they had acted in concert for any other criminal activity. His reliance is misplaced, however. The dealer in McGregor bought and resold at least four ounces of cocaine a week for over a year, and involved his wife on only one occasion. His sentence reflected all his prior drug dealing activity. In this context, the court held that “against the whole background of the case” McGregor’s use of his wife did not rise to the level of an organizer, leader, manager or supervisor. Id. at 1138 (noting that “[i]f McGregor had been charged with drug activity on any other day during the preceding year, he would have received a sentence without enhancement.”). In the present case, the district court found that Mitchell hired Wallace to burn the Club and instructed him how and when to do it. Clearly, these facts are distinguishable from the husband in McGregor who asks his wife to give buyers a package since he would not be home to do it himself. As the McGregor court noted, “[i]n the usual case, obtaining the services of a participant would make one a supervisor subject to an enhanced sentence.” Id. This is just such a usual case.

C. Obstruction of Justice

The district court concluded that Mitchell obstructed justice through his use of his tape recordings to attempt to cover up the conspiracy to commit arson, finding that they were made in an effort to create a false record, and were “intended to mislead authorities investigating this case and to deceive the jury, indeed, a judge, should the matter develop to that point.” (Sentencing hearing, at 45). The court accordingly increased the B.O.L. by two additional points. See U.S.S.G. § 3C1.1. In his brief, Mitchell does not contest the district court’s factual findings. Instead, he makes three arguments designed to show that his use of the tapes did not rise to the level of obstruction required to apply this section. We address each in turn.

First, Mitchell points out that the investigation was not obstructed in any manner, as the investigators did not know of the tapes’ existence until after his arrest. They were not misled by them in any way. See United States v. Manning, 955 F.2d 770 (1st Cir.1992) (finding that giving false name to arresting officers did not amount to obstruction of justice under § 3C1.1, as it did not mislead them). This argument is a red herring, however: the guideline itself provides that it applies if a defendant attempts to obstruct the administration of justice not only during the investigation, but also during the prosecution of an offense. Thus, whether or not the investigation was impacted by the tapes is irrelevant, since Mitchell used them at trial.

Mitchell’s second argument is that his use of the tapes did not thwart the administration of justice, since there was no intimidation of the witnesses, and no attempt to prevent them from testifying at trial. This, too, is a red herring, since intimidating or influencing a witness is not required in order to find obstruction of justice under section 3C1.1. Of course, it is one method that the commentary to that section notes may provide a basis for finding a defendant obstructed justice, see U.S.S.G. § 3C1.1 comment. (n. 1(d)), but the commentary’s list is, by its terns, not exclusive.

Finally, Mitchell argues that his use of the tapes does not qualify for an enhancement under section 3C1.1 because he did not use them as an affirmative weapon, since they were only used for impeachment purposes. The trial court’s decision, he maintains, seeks to punish passive, defensive conduct designed to protect the cross-examination process. However, as the Government points out, Mitchell's use of the tapes was not passive. He used portions of the February 1 and February 11 tapes to demonstrate his state of mind, and used the February 7 tape to cross-examine Wallace.

Indeed, Mitchell does not challenge the district court’s factual finding that the tapes were made in an attempt to create a false record, and we find no clear error in the court’s finding. Given that, the court’s application of section 8C1.1 was clearly proper. As the current commentary to that section notes, “producing or attempting to produce a false ... record during a ... judicial proceeding” rises to the level of obstructing justice. U.S.S.G. § 3C1.1 comment, (n. 3(c)) (1995); see U.S.S.G. § 3C1.1 comment, (n. 1(c)) (1987) (“producing or attempting to produce an altered, forced, or counterfeit ... record during a ... trial” may be a basis for applying § 3C1.1); see, e.g., United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st Cir.1991) (finding that submission of altered passport as verification of defendant’s identity met obstruction of justice standard); cf. United States v. Ruiz-Batista, 956 F.2d 351, 353-54 (1st Cir.) (upholding use of sentencing guideline commentary added after date of offense where commentary clarified what conduct could be considered in determining defendant’s role), cert. denied, 506 U.S. 834, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992). As Mitchell produced a falsified record at trial, we uphold the district court’s enhancement of his sentence for obstruction of justice.

VII. CONCLUSION

For the reasons stated above, the decision of the district court is affirmed.

      . Although he does not clearly state that his appeal is limited to the evidence admitted from Lt. Burrill’s search, Mitchell’s argument does not address the other two searches, and so we limit otur analysis to Lt. Burrill’s search and seizure. We note in passing, however, that even if Mitchell has not waived the right to object to the admission of the evidence from the other searches, see infra, the district court undoubtedly did not err in admitting that evidence, for the very reasons pronounced by the magistrate judge. First, Lt. LeBlanc’s search was constitutional under the rationale of Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978) ("Officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished.”). Second, First Security Company's search was a purely private search and seizure that did not involve official action; as such, it does not come under the Fourth Amendment, which does not proscribe unreasonable searches and seizures by private persons. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

      . In fact, defendant's brief refers to nameless "Boston Fire Department Inspectors” who entered the building on the day following the fire. As Lt. Burrill is the only official fitting that description who seized evidence at issue here, we assume that defendant was describing him.

      . Mitchell's counsel stated that there were twenty-one tapes in all, with roughly twenty-eight hours of recordings. Three tapes were actually entered at trial, but two other tapes were discussed. First, defense counsel offered a tape of a conversation between Mitchell and David Collins, an insurance broker, in his cross-examination of Collins during voir dire outside the jury’s presence, in order to refresh his recollection and knowledge. At the prosecution objection to the tape being played, and after some discussion, the court excused the witness for the day so that the prosecution could hear the tape. The next day, the following colloquy ensued (Mr. Prince is defense counsel; Mr. Cloherty is the prosecutor):
      THE COURT: .... Now, with regard to the Collins’ [sic] telephone call, have you heard that tape?
      MR. CLOHERTY: Yes, Your Honor.
      MR. PRINCE: We have resolved that issue, Your Honor.
      MR. CLOHERTY: Mr. Prince isn't going to play it. That’s withdrawn.
      THE COURT: All right.
      (Day 9, p. 12). Since the tape was withdrawn, we do not consider it here. Similarly, there was some discussion of a tape recorded on February 8, 1989, but defense counsel ultimately stated to the court that he would not be offering anything from that tape, and so we do not address it here.

      . In United States v. Taylor, we stated that the "raise-or-waive rule is not absolute. But, rescue missions are restricted to the correction of ‘plain’ errors,” 54 F.3d at 972, without delving into the difference between forfeiture and waiver. We therefore note that the distinction we draw today between them does not conflict with Taylor, in that Taylor was concerned with failure to timely object — i.e., forfeiture. Id. (noting that "a litigant who deems himself aggrieved ... ordinarily must object then and there, or forfeit any right to complain at a later time.”).

      . The remaining five counts charged Mitchell with arson, wire fraud, and use of a fire to commit a felony. See 18 U.S.C. §§ 844(i), 1343, & 844(h).

      . Mitchell specifically objected to the instruction at the close of the charge.

      .In making this argument, Mitchell adds that the jury was left to speculate as to whether Mitchell conspired to commit arson with Wallace, to commit wire fraud with Wallace, and possibly Gallant, or to commit both charges involving Gallant. Neither the indictment nor the jury instructions mention Gallant, however.

      . There is an important exception to the rule discussed in Griffin, however. “Griffin distinguishes cases ... which concern convictions that may have rested on a basis that was not supported by the evidence, from those concerning convictions possibly resting on an invalid ground as a result of an error of law." Nieves-Burgos, 62 F.3d at 436; see Griffin, 502 U.S. at 59, 112 S.Ct. at 474 (defining "legal error” as "a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence”). In the case of legal errors " ‘the proper rule to be applied is that which requires a verdict to be set aside where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.' " Id. at 52, 112 S.Ct. at 470 (quoting Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957), overruled by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). However, appellant does not argue that the conviction rested on an invalid ground, due to an error of law; rather, he focuses on the sufficiency of the evidence of the charges, the very concern at issue in Griffin. Therefore, we need not discuss this exception here. See id. at 55, 112 S.Ct. at 472 (noting that the exception has generally been applied "to general-verdict convictions that may have rested on an unconstitutional ground.”).

      . Mitchell lists the elements the Government had to prove for both objects of the conspiracy, but the only evidence he actually questions, regarding the use of interstate wire facilities, goes solely to the wire fraud claim.
      In a footnote, Mitchell also argues that the court expanded the conspiracy's scope "by allowing the Government to argue that Mitchell caused. Gallant to file false and fraudulent information with the insurance company." (Appellant’s Brief, p. 34 n. 39). He maintains that the Government was allowed to prove its case against Mitchell by showing (1) that he was partners with Gallant, and (2) that Gallant filed a claim for insurance proceeds without Mitchell's assistance. As this argument also goes solely to the sufficiency of the evidence regarding wire fraud, and there is no challenge to the sufficiency of the evidence on the conspiracy to commit arson charge, we need not address it.

      . That section states, in pertinent part:
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio or television communication interstate or foreign commerce, any writings, signs, signals, pictures or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both.
      18 U.S.C. § 1343.

      . Mitchell argues that the court erred in allowing the letter sent by Garguilo in evidence under the "business records” exception to the hearsay rule, see Fed.R.Evid. 803(6), because Garguilo did not testify regarding the authenticity of the letter or its accuracy, and there was no testimony regarding what happened to the letter after Collins received it. However, Sharon Motyl, a claims technician for Insurance Innovators, testified that the claims files were maintained in the ordinary course of business and included documents received from a third party. She specifically stated that the Garguilo letter was maintained as part of the pertinent claim file in the ordinary course of business. Given this, we doubt that the district court abused its discretion in admitting the letter. See United States v. Moore, 923 F.2d 910, 915 (1st Cir.1991) (noting that review of admission of evidence under the business records exception is for abuse of discretion). Even if it had, its error would not be prejudicial, as the letter was not relevant to the arson object of the conspiracy count.

      . As the sentencing guidelines in effect at the time of the sentencing were more onerous than those in effect at the time of the offense (Oct. 15, 1988), the district court applied the latter set of guidelines. The court found a base offense level of 6, see U.S.S.G. § 2K1.4(a), and enhanced it 18 levels for knowing creation of a substantial risk of death or serious bodily injury, see U.S.S.G. § 2K1.4(b)(1). With the disputed enhancements, the total adjusted offense level was 28.

      . At the time of the offense that section stated:
      If the defendant was an organizer, leader, manager, or supervisor in any criminal activity [involving four or fewer participants], increase by 2 levels.
      U.S.S.G. § 3B1.1(c) (1987).

      . Mitchell’s point that he did not conduct other criminal activily in concert with Wallace is irrelevant: when weighing application of section 3Bl.l(a), the sentencing court looks to the criminal activity charged. See, e.g., Balogun, 989 F.2d at 23.

      . At the time of the offense that section stated:
      If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level ... by 2 levels.
      U.S.S.G. § 3C1.1 (1987).


source: Caselaw Access Project

author: BOWNES, Senior Circuit Judge.

license: Public Domain

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of New Bank of New England, N.A., Plaintiff, Appellee, v. Donald L. LeBLANC and LeBlanc Associates, Inc., Defendants, Appellants.
    No. 95-1641.
    United States Court of Appeals, First Circuit.
    Heard Nov. 6, 1995.
    Decided June 6, 1996.

      Robert B. Fredericks, Falmouth, MA, for appellants.
    Lawrence H. Richmond, Washington, DC, with whom Ann S. DuRoss and Colleen B. Bombardier were on brief, for appellee.
    Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.
   BOWNES, Senior Circuit Judge.

This appeal concerns federal banking law and the scope of the federal estoppel doctrine established by the Supreme Court’s decision in D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and 12 U.S.C. § 1823(e). Defendant-appellant Donald L. LeBlanc seeks review of the district court’s order granting the FDIC’s motion for summary judgment. The district court held that the defenses and counterclaims LeBlanc raised in response to the FDIC’s affirmative suit to recover the deficiency owed on a mortgage note he and his company, LeBlanc Associates, (collectively “LeBlanc”) executed on January 5, 1989, were barred by both Massachusetts law and the D’Oench doctrine. We affirm this decision, but on slightly different grounds than those articulated by the district court. Title 28 U.S.C. § 1291 provides jurisdiction.

I.

BACKGROUND

For the purpose of reviewing the district court’s grant of summary judgment, we summarize the facts in the light most favorable to the nonmoving party. Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir.1993). In 1987, appellant acquired the 54-aere parcel at issue in this case. The parcel, which is located in Falmouth, Massachusetts, and abuts a 900-acre, partially-completed, residential community called Falmouth Woods, is accessible by only one road, Falmouth Woods Road. Though appellant purchased the parcel without first obtaining a right of way over Falmouth Woods Road, his intent was ultimately to acquire such an easement and to develop his parcel into a six-lot, multifamily subdivision called Prospect Hills. At the time LeBlanc purchased the property, both the Falmouth Woods development and Falmouth Woods Road, which fronts the Le-Blanc parcel’s western boundary, were owned by the Falmouth Woods Development Corporation (“FWDC”), a Massachusetts corporation.

On January 5, 1989, to finance development of the Prospect Hills parcel, LeBlanc obtained a $750,000.00 loan from the Bank of New England South, N.A., which later merged into Bank of New England, N.A. (“BNE”). The loan, which both parties agree was not conditioned upon LeBlanc’s acquiring an easement across Falmouth Woods Road, was secured by a personal guaranty note executed by LeBlanc and a mortgage on the 54-acre parcel. Payment on the note was to be monthly, beginning in February of 1989, with the provision that the principal balance, plus accrued and unpaid interest, were to be paid by January 4,1992.

LeBlanc obtained approval and a permit for the Prospect Hills subdivision from the Falmouth Planning Board and, in the Fall of 1989, began meeting with FWDC to discuss securing access rights over Falmouth Woods Road. During negotiations, FWDC verbally agreed to grant LeBlanc an easement for utilities and right of way across Falmouth Woods Road. A written agreement regarding the easement, however, was never prepared. Before the sale of the easement could be recorded, FWDC began experiencing financial difficulties and filed for Chapter 11 bankruptcy in March of 1990.

BNE, which had loaned FWDC $28 million prior to extending LeBlanc the loan to develop Prospect Hills and, as a result, held a mortgage in the Falmouth Woods property, sought and obtained relief from the automatic stay placed on FWDC’s estate as a result of the bankruptcy filing. BNE operated the Falmouth Woods property as a mortgagee in possession, briefly continuing service at the Falmouth Woods golf course, and tried to sell Falmouth Woods subdivision lots. It eventually foreclosed its mortgage and purchased the property at the subsequent foreclosure sale. Because FWDC’s mortgage did not include the fee interest in Falmouth Woods Road, the foreclosure sale purchase left BNE with title to Falmouth Woods and an easement over Falmouth Woods Road. The fee interest in the road remained with the bankruptcy trustee assigned to manage FWDC’s assets.

The Falmouth Woods property changed hands several times after BNE’s foreclosure-sale purchase, thwarting LeBlanc’s efforts to obtain an easement over Falmouth Woods Road. In September 1990, BNE transferred the Falmouth Woods property to its wholly-owned subsidiary, Falmouth Land Company (“FLC”). In January 1991, the Comptroller of the Currency of the United States of America (“COC”) declared BNE insolvent and appointed the FDIC receiver of BNE. The COC also chartered the New Bank of New England, N.A. (“NBNE”), pursuant to 12 U.S.C. § 1821(n), as a bridge bank to acquire the assets formerly held by BNE. Thus, NBNE held title to the FWDC property, as well as LeBlanc’s $750,000.00 note and guaranty from January to July of 1991.

On July 13, 1991, the COC dissolved NBNE and appointed the FDIC as receiver of the bank, pursuant to 12 U.S.C. § 1821(n)(12). The FDIC then acquired Falmouth Woods and assumed the note and the mortgage on the LeBlanc parcel. On August 13, 1991, the FDIC took title to the fee interest in Falmouth Woods Road in the name of FLC, the NBNE subsidiary. NBNE had purchased the fee interest in Falmouth Woods Road from the FWDC’s bankruptcy trustee in May 1991.

LeBlanc pursued his easement request with each of Falmouth Woods’s owners because the Prospect Hills parcel, initially appraised at $1,980,000.00, was virtually worthless without access to Falmouth Woods Road. Negotiations with BNE, FLC, and Oak Tree Capitol (“Oak Tree”), a company which functioned as asset manager for both FLC and BNE, were unsuccessful. Attempts to obtain a right of way from NBNE and the FDIC were also unsuccessful, primarily because both entities engaged in actions which blocked LeBlanc’s acquisition efforts. NBNE contested LeBlanc’s efforts to resolve his road access problems through direct negotiations with the FWDC bankruptcy trustee and was ultimately successful in outbidding LeBlanc for the fee interest in Falmouth Woods Road. According to Le-Blanc, NBNE officials also misrepresented the fact that they were marketing the Falmouth Woods property without reservation of rights or notice of claims. LeBlanc further asserts that NBNE attempted to accelerate payment on his note by declining to honor a loan commitment made to another LeBlanc development entity, DDM Development Corporation (“DDM”), and making an easement across Falmouth Woods Road contingent upon increased collateralization of the note or a reduction in principal. Le-Blanc imputes a similar bad intent to the FDIC, which failed to convey him an easement during work-out negotiations on the note.

Payments on LeBlanc’s $750,000.00 note were current and regular until the Fall of 1991. Then, in a November 13, 1991, letter, LeBlanc informed the FDIC, which held title to Falmouth Woods and Falmouth Woods Road at that time, that its refusal to convey the requested easement entitled him to discontinue payments on the $750,000.00 note and that he would not resume payments until the easement matter was resolved. On November 21, 1991, the FDIC made a demand for full payment of the outstanding note balance. When LeBlanc failed to make the requested payment, the FDIC, on August 7, 1992, foreclosed and sold the Prospect Hills property for $235,000.00 at auction. Appellant’s son, Mark LeBlanc, as Trustee of the McAuliffe Nominee Trust, purchased the property. The deficiency due on LeBlane’s note, the subject of the instant appeal, has not yet been paid.

II.

PROCEDURAL HISTORY

On June 19,1992, the FDIC filed an action in the District Court for the District of Massachusetts, seeking the deficiency balance on LeBlanc’s note. On August 21, 1992, Le-Blane filed an answer and three count counterclaim, alleging that the FDIC’s refusal to grant LeBlanc an easement across Falmouth Woods Road violated state law. Count I of the counterclaim alleged that the FDIC’s actions breached the implied covenant of good faith and fair dealing implicit in all contracts made under Massachusetts law. See Mass. Gen. L. ch. 106 § 1-203 (1990). Count II alleged a breach of contract under Mass. Gen. L. ch. 106 § 9-106, which governs secured transactions. Count III raised claims in tort for intentional infliction of emotional distress.

On February 17,1993, before a magistrate judge, the FDIC moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), and argued that the federal estoppel doctrine established by the Supreme Court’s decision in D’Oench, Duhme & Co. v. FDIC, 315 U.S. at 447, 62 S.Ct. at 676, and 12 U.S.C. § 1823(e) barred LeBlanc from asserting his defenses and three counterclaims. LeBlanc contended that neither section 1823(e) nor the common law D’Oench doctrine it codifies preempted his counterclaims. He maintained that, under Massachusetts common law and the Uniform Commercial Code (“UCC”), the duties allegedly breached by the FDIC arose out of the performance and administration of the note and not out of an unauthorized side agreement.

In a May 13, 1993, order, the magistrate judge allowed, in part, and denied, in part, the FDIC’s Rule 12(c) motion. The court found that the principal allegations raised by LeBlanc’s counterclaims rested on an “implied” and, under the D’Oench doctrine, unenforceable “agreement that the FDIC affirmatively assist LeBlanc ... in [his] attempt to acquire a right of way over the road.” It, therefore, dismissed those allegations in counts I and III of appellant’s counterclaim which relied on that agreement, holding that all other allegations, taken as true, were legally sufficient to survive Rule 12(c).

The magistrate judge ruled that count II of appellant’s counterclaim, which was based on Mass. Gen. L. ch. 106 § 9-507 and focused on the FDIC’s conduct at the August 1991 foreclosure auction, survived the Rule 12(c) motion because, unlike counts I and III, it was based exclusively on state law. She did not, however, attempt to resolve that claim because she found the information available to her insufficient to decide the commercial reasonableness of the FDIC’s foreclosure actions. Finally, the magistrate judge rejected the FDIC’s claim that a federal common law rule barring LeBlanc’s claims should be fashioned. She found that LeBlanc’s counterclaim was procedurally deficient because he faded to seek leave to name the FDIC as a counterclaim-defendant in its corporate capacity.

On August 13, 1993, the district court issued an order accepting the Report and Recommendation of the magistrate judge, with two modifications. It dismissed LeBlanc’s counterclaims against the FDIC in its corporate capacity and reserved the issue of which party bears the burden of proof on matters of “commercial reasonableness” for later determination. The FDIC filed a motion for summary judgment against LeBlanc on July 22,1994.

On October 27, 1994, the district court issued an order allowing summary judgment for the FDIC on its affirmative claim for the deficiency due on the note and post-judgment interest. The district court agreed with the magistrate judge’s determination that the federal estoppel doctrine barred much of Le-Blanc’s answer and concluded that “LeBlanc has presented no defense that would excuse his default.” The court also granted the FDIC’s summary judgment motion with respect to appellant’s three-count counterclaim. It reaffirmed the magistrate judge’s conclusion that appellant’s counterclaims were barred to the extent that they were based on a side agreement or affirmative duty and, consequently, only considered the state law issues which survived the magistrate judge’s order.

Without deciding whether D’Oench and section 1823(e) permit claims based on terms implied in an agreement as a matter of state law, the district court held that appellant’s allegations, even if true, did not constitute a breach of the implied covenant of good faith and fair dealing. Noting that Massachusetts law does not impose a duty to enter into a contract, the court rejected appellant’s claims that it was inappropriate for the FDIC to compete with LeBlanc or to use the fee interest in Falmouth Woods Road as a bargaining chip in its negotiations with appellant.

The court also held that LeBlane’s claim that the FDIC failed to handle its secured collateral, the Prospect Hills parcel, in accordance with Mass. Gen. L. ch. 106 § 9-507, could not stand because that statute does not govern secured transactions where the security is real property. Finally, the district court granted summary judgment on appellant’s intentional infliction of emotional distress counterclaim. It concluded that the FDIC’s actions did not amount to extreme and outrageous behavior within the meaning of Massachusetts tort law, though it acknowledged that the FDIC’s actions in attempting to trade an easement in Falmouth Woods Road “may [have] constitute^] rather hard-nosed business.” The court entered its judgment on May 8, 1995, and this appeal followed.

III.

DISCUSSION

We review the district court’s grant of summary judgment de novo, EEOC v. Green, 76 F.3d 19, 23 (1st Cir.1996), but may affirm on any independently sufficient ground. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); see also Fed.R.Civ.P. 56(c). We do not consider the issues presented by appellant’s intentional infliction of emotional distress and Mass. Gen. L. ch. 106, § 9-507 counterclaims. Appellant failed to heed our oft-articulated warning that “issues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, [will be] deemed waived for purposes of appeal.” Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st Cir.1994); see also Executive Leasing v. Banco Popular De Puerto Rico, 48 F.3d 66, 68 (1st Cir.)(On appeal, “[w]e will not rely upon arguments and allegations that are developed only in the district court pleadings.”), cert. denied, — U.S. -, 116 S.Ct. 171, 133 L.Ed.2d 112 (1995).

Nor do we consider those counterclaim I issues which the district court held hinged on an affirmative obligation or implied agreement that the FDIC assist appellant in obtaining a right of way over Falmouth Woods Road. Appellant did not object to the magistrate’s decision and, therefore, waived his right to appeal the district court’s order on this question. See Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); see also 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). We concern ourselves solely with LeBlane’s defense to the FDIC’s affirmative claims and those counterclaim I arguments which the district court held survived D’Oench and section 1823(e). For the sake of convenience, we use “FDIC” to refer to both the FDIC in its capacity as receiver and its predecessors in interest.

LeBlanc’s Defense to the FDIC’s Affirmative Claims

The district court granted summary judgment on the FDIC’s claim for the deficiency due on the $750,000.00 note and entered judgment in favor of the FDIC in the amount of $686,942.78, plus post-judgment interest. On appeal, LeBlanc argues that the district court erroneously held that D’Oench and section 1823(e) barred his defense that the FDIC, as receiver of NBNE, breached its obligation to perform the terms of the loan agreement in good faith, see Mass. Gen. L. ch. 106 § 1-203, by competing with him for the fee interest in Falmouth Woods Road. He contends that his defense of economic coercion concerns the value of the $750,000.00 note and not Ms failed attempts to secure a right of way.

On tMs point, we discern no error in the district court’s analysis. Without deciding whether breach of implied covenant of good faith and fair dealing claims are generally precluded by D’Oench, we hold that the particular defense advanced in tMs case is barred. Appellant’s defense rests on an unwritten or implied agreement regarding a right of way over Falmouth Woods Road and not the terms of the $750,000.00 note.

The common law D’Oench doctrine “prevents plaintiffs from asserting as either a claim or defense against the FDIC oral agreements or ‘arrangements.’” Adams v. Zimmerman, 73 F.3d 1164, 1168 (1st Cir.1996)(quoting Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 48-50 (1st Cir.1991)). Its statutory codification, section 1823(e), “bars anyone from asserting against the FDIC any ‘agreement’ that is not in writing and is not properly recorded in the records of the bank.” Id.; see also 12 U.S.C. § 1823(e). Section 1823(e), as amended by the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), provides:

No agreement wMch tends to dimimsh or defeat the interest of the Corporation in any asset acquired by it under this section or section 1821 of tMs title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the Corporation unless such agreement — (1) is in writing, (2) was executed by the depository institution and any person claiming an adverse mterest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution, (3) was approved by the board of directors of the depository institution or its loan committee, wMch approval shall be reflected in the minutes of said board or committee, and (4) has been, continuously, from the time of its execution, an official record of the depository institution.

12 U.S.C. § 1823(e). Though there is some disagreement as to whether D’Oench and section 1823(e) should be read as coextensive, see Adams, 73 F.3d at 1168-69 n. 2, all courts agree that they serve the same purpose: to ‘ prohibit] all secret agreements that tend to make the FDIC susceptible to fraudulent arrangements.” Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 48 (1st Cir.1991).

The scope of agreements precluded by D’Oench and section 1823(e) is expansive. See Adams, 73 F.3d at 1169. It mcludes promises to perform, as well as fraudulent misrepresentations or warranties, whether the FDIC had knowledge of the fraud or misrepresentation at the time it acquired the asset or not. Langley v. FDIC, 484 U.S. 86, 91-94, 108 S.Ct. 396, 401-03, 98 L.Ed.2d 340 (1987). Additionally, it embraces both affirmative claims and defenses and extends to arguments asserted in terms of contract or tort. Timberland, 932 F.2d at 49-50.

LeBlane’s main attack is based on the FDIC’s failure to actively assist him in obtaining a Falmouth Woods Road easement upon taking control of BNE’s assets. The problem with this is that nothing in the terms of the $750,000.00 note can be read to create such a duty on the part of the FDIC. LeBlane, m fact, admits that the $750,000.00 note was contingent neither upon Ms obtaining nor the FDIC or its predecessors providing an easement. Accordingly, tMs attempt to shift the risk LeBlane knowingly assumed when he purchased the land-locked Prospect Hills property to the FDIC, and consequently, to unsuspecting creditors and depositors, must fail. See Timberland, 932 F.2d at 48. Permitting appellant to proceed on the basis of an unrecorded agreement would undermine the accuracy of NBNE’s records and further complicate the FDIC’s task of valuing NBNE’s assets. Compare Desmond v. FDIC, 798 F.Supp. 829, 839 (D.Mass.1992); see also Langley, 484 U.S. at 92, 108 S.Ct. at 401-02.

LeBlane’s Counterclaim, for Breach of an Implied Covenant of Good Faith and Fair Dealing

LeBlane avers that the FDIC, as receiver of NBNE, breached its obligation to perform the terms of the $750,000.00 loan agreement in good faith in three regards. He contends that the FDIC deprived him of the fruits of his bargain, see Anthony’s Pier Four, Inc. v. HBC Assoc., 411 Mass. 451, 471, 583 N.E.2d 806 (1991), by withholding funds due him on the DDM construction project and by making an easement across Falmouth Woods Road contingent upon provision of additional collateral or a reduction in note principal and utilizing artificially low appraisals of the Prospect Hills development. He also alleges that the FDIC’s failure to extend him an easement across Falmouth Woods Road during work-out negotiations constitutes a breach of the agreement.

There is an argument that D’Oench precludes these claims, at least to the extent that they rely upon any specifics in the negotiations between the borrower and the bank, even if the specifics are not formally agreements. See Langley, 484 U.S. at 91-94, 108 S.Ct. at 401-03. But even if we assume that D’Oench does not bar LeBlanc’s breach of an implied covenant of good faith and fair dealing counterclaims — and, as we indicated in the previous section, we are certainly not deciding that question here — appellant has not convinced us that there is any general obligation under state law that required the bank (in the absence of an agreement) to take the affirmative steps appellant now claims should have been taken.

We detect no bad faith in the FDIC’s decision to withhold DDM project funds or to make an easement across Falmouth Woods Road contingent upon additional collateral or a reduction in principal. Though the FDIC’s dealings with LeBlane were arguably “hard-nosed,” there is no evidence that the FDIC’s actions deprived LeBlane of the benefits of the loan agreement. See Anthony’s Pier, 411 Mass. at 471, 583 N.E.2d 806. LeBlane neither disputes that he received the proceeds of the $750,000.00 loan nor suggests that the FDIC took adverse actions on the note before his November 1992 default.

LeBlanc’s arguments are complaints about the terms on which the FDIC proposed to execute or continue agreements with him. But having engaged in rigorous bargaining of his own, LeBlane cannot now contend that it was unfair for the FDIC to bargain for more security on the $750,000.00 note. The FDIC had no duty at all under the loan agreement to extend appellant an easement, let alone to provide him one on terms which were more favorable to him. Nothing prevents a party to a bargain from engaging in hard-nosed dealings, see Schwanbeck v. Federal-Mogul Corp., 31 Mass.App.Ct. 390, 405, 578 N.E.2d 789 (1991), rev’d on other grounds, 412 Mass. 703, 706, 592 N.E.2d 1289 (1992), or even from attempting to capture opportunities foregone at the formation of one contract— i.e., the loan agreement — by negotiating another — i.e., the easement. See Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L.Rev. 369, 372-73 (1980). As the district court astutely observed, “the FDIC owned something that LeBlane wanted, and it was permissible for the FDIC to use that ‘something’ as a bargaining chip in order to obtain what it wanted, namely more security on the $750,000.00 note.”

Finally, we reject LeBlanc’s claim that the FDIC breached its obligation to perform in good faith during work-out negotiations with appellant. Massachusetts law implies a duty of good faith and fair dealing in every existing contract. See Anthony’s Pier, 411 Mass. at 472, 583 N.E.2d 806; Fortune v. Nat’l Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977); Schwanbeck, 31 Mass.App.Ct. at 397 n. 6, 578 N.E.2d 789. At the time the work-out negotiations occurred, however, there was no contract between the FDIC and LeBlane. LeBlanc’s November 1992 default ended the contractual relationship he theretofore enjoyed with the FDIC. We, therefore, hold that LeBlanc’s claim fails to the extent that it relies on the loan agreement. That claim also fails to the extent that it rests on an obligation to negotiate new contracts in good faith. We are not convinced that the loan agreement contained any such contractual obligation, see Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706, 592 N.E.2d 1289 (1992), and do not find, for that matter, any evidence that the FDIC entered into work-out negotiations with an ulterior purpose or bad motives.

IV.

CONCLUSION

For the foregoing reasons, we affirm the district court’s grant of summary judgment. The judgment sum of the district court is affirmed. There will be added to that sum, $686,942.78, such post-judgment interest as is due.