United States v. Conley ( 1999 )


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  •                 United States Court of Appeals
    For the First Circuit
    No. 98-2181
    UNITED STATES,
    Appellee,
    v.
    KENNETH M. CONLEY,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Robert E. Keeton, U.S. District Judge]
    Before
    Torruella, Chief Judge,
    Selya and Lynch, Circuit Judges.
    Willie J. Davis, with whom Frances L. Robinson, and Davis,
    Robinson & White, LLP were on brief, for appellant.
    S. Theodore Merritt, Assistant United States Attorney, with
    whom Bill Lann Lee, Acting Assistant Attorney General, Donald K.
    Stern, United States Attorney, and Sheryl L. Robinson, Trial
    Attorney, Criminal Section, were on brief, for appellee.
    July 23, 1999
    TORRUELLA, Chief Judge.  The underlying case in this
    appeal stems from an April 1997 federal grand jury investigation
    into an incident in which Michael Cox, a plain clothes Boston
    police officer, was allegedly mistaken for a fleeing suspect and
    beaten by unknown police officers in violation of 18 U.S.C.  242.
    On May 29, 1997, defendant-appellant Kenneth Conley, a Boston
    police officer at the scene of the incident, testified before the
    grand jury pursuant to an immunity order.  Conley was subsequently
    convicted of perjury and obstruction of justice as a result of his
    grand jury testimony and was sentenced to thirty-four months
    imprisonment and a $6,000 fine.  Conley now appeals his conviction.
    BACKGROUND
    At approximately 2:30 a.m. on January 25, 1995, a
    shooting occurred at a restaurant on Blue Hill Avenue in the Grove
    Hall section of Boston.  It was mistakenly broadcast over the
    police radio that the victim of the shooting was a Boston police
    officer.  The suspects were described as four black males driving
    a gold Lexus.  The mistaken broadcast of a police officer down
    generated a massive response by police cruisers from several
    different districts.  A chase ensued.
    The suspects led the police on a lengthy car chase
    spanning three police districts and several towns.  The closest
    police vehicle behind the Lexus throughout most of the chase was an
    unmarked police cruiser occupied by plain clothes officers Craig
    Jones and Michael Cox.  Jones was the driver of the vehicle, and
    Cox occupied the passenger seat.
    The car chase finally ended when the suspects drove down
    a dead end street known as Woodruff Way in Mattapan.  When the
    suspects arrived at the cul-de-sac at the end of Woodruff Way, the
    Jones/Cox unmarked cruiser was the first police car on the scene,
    and skidded to a stop on the left side of the Lexus.  The second
    police cruiser to arrive was occupied by uniformed officers David
    Williams and James Burgio.  Williams and Burgio pulled in on the
    right side of the Lexus.  Uniformed officer Ian Daley arrived next,
    and pulled in directly behind the Lexus.  Immediately behind Daley
    was uniformed officer Richard Walker, followed by defendant-
    appellant Conley and his partner, Robert Dwan.  The Conley/Dwan
    vehicle was thus the fifth police vehicle on the scene.  Conley and
    Dwan wore plain clothes and occupied an unmarked police vehicle.
    As the gold Lexus came to a stop at the end of Woodruff
    Way, Cox observed one of the suspects, later identified as Robert
    Brown, exit the gold Lexus from the passenger side, and run to the
    right, towards a fence.  In pursuit, Cox exited his vehicle from
    the passenger side, ran behind the Lexus, and followed the suspect
    to the right, towards the fence.  Cox described the suspect as a
    black male wearing a brown leather jacket.  Cox, also black, was
    wearing jeans, a black hooded sweatshirt, and a three-quarter
    length black down jacket.
    Cox chased the suspect to the fence, approximately twenty
    feet away.  During the chase, Cox was "about three feet" behind the
    suspect.  (Tr. Vol. II at 31).  When the suspect got to the fence,
    the suspect began climbing over it, catching his jacket for a
    moment on the top.  At that moment, Cox reached up and attempted to
    grab the suspect and pull him back over the fence.  Cox testified
    that approximately two seconds elapsed between the time that the
    suspect caught his jacket on the top of the fence and the time when
    Cox grabbed the suspect's jacket in an attempt to pull him back
    over the fence.  (See Tr. Vol. II at 14, 76).  Cox's attempt
    failed, however, and the suspect dropped down on the other side of
    the fence and started to run.  Cox did not observe anyone else
    climb over the fence between him and the suspect.
    After the suspect landed on the other side, Cox took a
    step back from the fence, considering for a moment whether to
    follow over the fence.  A moment later, Cox placed both his hands
    up on the fence, as if to go over.  At that point, Cox felt a sharp
    blow on the back of his head, like a metal pipe.  The next thing he
    knew he was on the ground on his hands and knees, trying to get up.
    He observed a white male standing in front of him, wearing boots
    and a dark uniform.  Cox was repeatedly kicked in the head, back,
    face, and mouth by several different people all at once.  The
    beating did not stop until Cox heard someone yell: "Stop, stop,
    he's a cop, he's a cop."  (Tr. Vol. I at 88).  When the kicking
    finally stopped, Cox attempted to get up from the ground.  When he
    looked up, he realized that there was no one around to assist him.
    Cox was forced to use the bumper of a police car to pull himself up
    from the ground.
    In April 1997, a federal grand jury commenced an
    investigation into the beating of Officer Michael Cox.  The grand
    jury sought to determine the identity of the officers who attacked
    Michael Cox and/or deliberately failed to prevent the assault and
    to get medical attention for him once they knew he was injured.  On
    May 29, 1997, defendant-appellant Conley, an officer present at the
    scene, was called before the grand jury to recount the events he
    observed and the actions he took at Woodruff Way in the early
    morning hours of January 25, 1995.
    Consistent with Cox's version of events, Conley testified
    that when he arrived at the dead end on Woodruff Way, his vehicle
    was about the fourth or fifth police car in line behind the
    suspects' gold Lexus, approximately forty feet away.  (See Tr. Vol.
    II at 229-30, 232).  Also consistent with Cox's account, Conley
    testified that once the Lexus skidded to a stop, a black male
    wearing a brown leather jacket exited from the passenger side of
    the Lexus and ran to the right, towards a fence.  Conley exited his
    vehicle in pursuit.  While in pursuit, Conley observed the suspect
    scale the fence, drop down on the other side, and start to run.
    (See 
    id. at 233).
    Conley testified that he made all of these observations
    as he pursued the suspect, beginning from the time the suspect
    first exited the gold Lexus up to the time when the suspect landed
    on the other side of the fence and started to run.  According to
    Cox's testimony, Conley made these observations at precisely the
    same time that Cox was chasing "right behind" the suspect.  (Tr.
    Vol. I at 77).  However, before the grand jury, Conley testified
    that during that time he did not observe anyone -- either in plain
    clothes or in uniform -- between him and the suspect.  In direct
    conflict with Cox's account, Conley testified as follows:
    Q:     All right.  Now, officer Conley, when
    you were chasing the suspect as he went
    over to the fence, did you see another
    individual chasing him as well?
    A:     No, I did not.
    Q:     Did you see anyone else in plain
    clothes behind him as he went towards
    the fence?
    A:     No, I didn't.
    Q:     Did you see, as he went on top of the
    fence or climbed the fence, another
    individual in plain clothes standing
    there, trying to grab him?
    A:     No, I did not.
    Q:     When you saw the suspect get to the top
    of the fence, did you see another
    individual in plain clothes grabbing
    part of his clothing --
    A:     No, I did not.
    Q:     -- as he went over the fence?
    A:     No, I did not.
    Q:     So that didn't happen; is that correct?
    Because you saw the individual go over
    the fence?
    A:     Yes, I seen [sic] the individual go
    over the fence.
    Q:     And if these other things that I've
    been describing, a second -- another
    plain clothes officer chasing him, and
    actually grabbing him as he went to the
    top of the fence, you would have seen
    that if it happened; is that your
    testimony?
    A:     I think I would have seen that.
    (Tr. Vol. II at 235-36).  Conley further testified that when he got
    to the fence, he climbed over it in "approximately the same
    location" that he had observed the suspect go over the fence, and
    continued in pursuit.  (Id. at 239).  Eventually, after chasing the
    suspect for approximately one mile, Conley apprehended him and
    effected an arrest.
    Two other individuals, present at the scene, testified at
    Conley's trial: Officer Walker, and the suspect, Robert Brown.
    Officer Walker corroborated Cox's version of events up to the point
    when the suspect climbed over the fence and dropped down on the
    other side:
    Q:     Did you see - did Officer Cox reach for
    the person on the fence?
    A:     Yes, he did.
    Q:     What did the person who went over the
    fence do once they went over the fence?
    A:     Once he went over the fence, he fell.
    . . .
    Q:     What did Officer Cox do once the person
    went over the fence?
    A:     I don't know.
    (Tr. Vol. II at 32).  After observing the suspect fall on the other
    side of the fence, Walker ran from his car straight ahead to a hole
    in the fence.  Walker did not see Cox put his hands on the fence,
    as if to go over.  The last thing Walker saw Cox do was reach for
    the suspect caught on the fence.  (See 
    id. at 33).
    Once through the hole in the fence, Walker ran to the
    right, in pursuit of the fleeing suspect.  As he ran, he came upon
    two white, plain clothes police officers standing in the street.
    Walker testified that no one had passed by him from the time that
    he ran through the hole in the fence to the time when he
    encountered the two white police officers.  He did not know where
    the two officers had come from; he had not observed them jump over
    the fence.  The taller of the two officers asked Walker whether he
    had a light, and when Walker responded that he did not, the taller
    officer took off running.  Walker followed, approximately two yards
    behind.  (See Tr. Vol. II at 67).
    During the chase, the tall white officer in front of
    Walker dropped his radio.  Walker stopped to pick up the radio, and
    then continued in pursuit.  When the tall white officer finally
    apprehended the suspect, Walker returned his radio to him.  At
    trial, Walker testified that the tall white officer was
    approximately the same height and size as defendant-appellant
    Conley.
    Robert Brown, the suspect wearing the brown leather
    jacket who was allegedly pursued by both Cox and Conley, also
    testified at trial.  Brown corroborated much of Cox's account.  He
    testified that when the Lexus skidded to a stop at the end of
    Woodruff Way, he exited the vehicle from the rear passenger side,
    and headed to the right, towards the fence.  He further testified
    that as he ran towards the fence, he looked back and saw a black
    man wearing black clothing running behind him.  When he arrived at
    the fence, Brown flipped over it, catching his jacket on the top.
    Brown stated that as he attempted to free his jacket from the top
    of the fence, he felt somebody touch his foot.  Once he became free
    of the fence, Brown fell backwards down a hill, ran into a tree,
    and split his tooth in half.  Dazed and confused, Brown remained on
    the ground for a moment and observed a black man wearing a "black
    hoody" start to "go for the fence."  (Tr. Vol. II at 97-8).  As the
    man grabbed for the fence, Brown observed a police officer hit the
    man twice on the back of the head with a billy club or a
    flashlight, something "shaped like a pipe."  (Id. at 98).  Brown
    described the police officer as a tall, black man with a mustache,
    wearing a Boston police uniform and a badge.
    Brown next observed a second officer come over to the
    fence to assist the tall black officer in wrestling the black man
    to the ground.  Once the man was down on the ground, Brown
    testified that approximately three or four other police officers --
    uniformed and plain clothes -- came over to the fence and began to
    kick the man.  At this point, Brown stood up to run.  As he stood
    up, Brown made eye contact with a tall white officer on the other
    side of the fence.  Brown testified that he did not observe this
    white officer kick the man on the ground.
    Once the tall white officer made eye contact with Brown,
    Brown began to run, and the white officer followed.  Eventually,
    the white officer caught Brown and arrested him.  At trial, Brown
    testified that the arresting officer was the same tall white
    officer he had made eye contact with through the fence.
    On August 14, 1997, Conley was charged in a three-count
    indictment arising from his grand jury testimony.  Count One
    charged that Conley committed perjury, in violation of 18 U.S.C.
    1623, by denying that he saw Cox chase, pursue, and grab hold of
    a suspect as that suspect ran toward and climbed the fence at
    Woodruff Way.  Count Two charged that Conley also committed perjury
    by denying that he saw Boston police officers strike and kick Cox.
    Count Three charged that Conley obstructed and endeavored to
    obstruct the grand jury investigation by giving false, evasive, and
    misleading testimony and withholding information, in violation of
    18 U.S.C.  1503.  On June 10, the jury returned verdicts of guilty
    on Counts One and Three and not guilty on Count Two.
    DISCUSSION
    On appeal, Conley raises several challenges to his
    conviction.  We address each of his challenges in turn.
    1.  The Testimony of the Grand Juror
    Title 18 U.S.C.  1623 states, in relevant part:
    Whoever under oath . . . in any proceeding
    before or ancillary to any court or grand jury
    of the United States knowingly makes any false
    material declaration . . . shall be fined not
    more than $10,000 or imprisoned not more than
    five years, or both.
    18 U.S.C.  1623.  It is uncontested that a conviction under  1623
    requires that the statements made be "material" to the proceeding,
    here a grand jury investigation.  See 
    id. It is
    also uncontested
    that "materiality" is an element that the government bears the
    burden of proving.  The question presented by defendant-appellant
    Conley is whether the district court erred in allowing the
    government to prove this element by calling Jeanne LaBelle, a
    member of the grand jury that investigated the Cox incident, to
    testify as to the scope and purpose of the grand jury's
    investigation.  Conley contends that the district court erred in
    admitting Ms. LaBelle's testimony, and that such error warrants
    reversal of his conviction.  We disagree.
    A.  Fed. R. Evid. 606(b)
    Before this court, Conley argues for the first time that
    the admission of Ms. LaBelle's testimony violated Fed. R. Evid.
    606(b).  Although Conley objected to the admission of
    Ms. LaBelle's testimony on other grounds, Conley never raised the
    applicability of Rule 606(b) before the district court.  "Our law
    is clear that a party ordinarily may not raise on appeal issues
    that were not seasonably advanced (and, hence preserved) below."
    Cooperman v. Individual, Inc., 
    171 F.3d 43
    , 50 (1st Cir. 1999)
    (quoting Daigle v. Maine Medical Center, Inc., 
    14 F.3d 684
    , 687
    (1st Cir. 1994)).  We see no reason to depart from this well-
    established rule in this case.  We thus decline to address Conley's
    Rule 606(b) argument, except to say that plain error is plainly
    absent.
    B.  Fed. R. Evid. 403
    Conley next claims that the district court erred in
    admitting Ms. LaBelle's testimony because its probative value was
    substantially outweighed by the danger of unfair prejudice.  See
    Fed. R. Evid. 403.  Specifically, Conley argues that the admission
    of the testimony of a grand juror who voted to return an indictment
    against him was unfairly prejudicial in that it called upon the
    petit jury to evaluate the credibility of a grand juror.  Conley
    contends that because of the "natural tendency" of the petit jury
    to identify with the grand juror, the petit jury inevitably gave
    undue weight and credence to Ms. LaBelle's testimony.  Conley
    further argues that the admission of Ms. LaBelle's testimony
    unfairly prejudiced his case because it caused the jury to confuse
    the standards of proof governing the grand jury decision to indict
    and the petit jury decision to convict, respectively.  Finally,
    Conley claims that the government's use of the testimony of a
    member of the grand jury that returned an indictment against him,
    violated his presumption of innocence in that it called upon the
    jury to infer guilt from the fact of his indictment.  For all of
    these reasons, Conley maintains that the admission of Ms. LaBelle's
    testimony should have been excluded under Fed. R. Evid. 403.
    We review the district court's Rule 403 determination for
    abuse of discretion.  See United States v. Cruz-Kuilan, 
    75 F.3d 59
    ,
    61 (1st Cir. 1996).  We note that "[o]nly rarely -- and in
    extraordinarily compelling circumstances -- will we, from the vista
    of a cold appellate record, reverse a district court's on-the-spot
    judgment concerning the relative weighing of probative value and
    unfair effect."  United States v. Saccoccia, 
    58 F.3d 754
    , 773 (1st
    Cir. 1995) (quoting Freeman v. Package Mach. Corp., 
    865 F.2d 1331
    ,
    1340 (1st Cir. 1988)).
    Although the district court did not make express
    findings with respect to its Rule 403 balancing, it is apparent
    from the record that the court was aware of its responsibility to
    balance the probative value of Ms. LaBelle's testimony against its
    unfairly prejudicial effect.  See United States v. Santagata, 
    924 F.2d 391
    , 394 (1st Cir. 1991) (where pleadings and record evidence
    show that court was aware of its Rule 403 responsibility, express
    findings not necessary).  As the district court noted, the
    testimony of Ms. LaBelle was clearly relevant to materiality.
    Ms. LaBelle testified as to the scope and purpose of the grand jury
    inquiry:
    We were investigating an assault that took
    place on Officer Michael Cox on January 25th
    of 1995, and we were trying to establish the
    identity of officers who participated in the
    attack.  We were trying to determine if there
    was excessive force used, and also we were
    trying to determine who the officers were who
    deliberately failed to get medical attention
    once they knew that he had been injured.
    (Tr. Vol. III at 114).  Ms. LaBelle further testified that
    defendant-appellant Conley was one of approximately forty-five
    officers called to testify before the grand jury, and that after
    Conley's testimony the grand jury did not have any more evidence
    concerning the identity of the officers who beat Cox or the
    identity of any witnesses to the beating.  Finally, Ms. LaBelle
    testified that at the time she ended her service as a grand juror,
    the grand jury had not returned any indictments for the assault of
    Michael Cox.  Ms. LaBelle's testimony was probative in the sense
    that it provided a context for Conley's allegedly false statements
    from which the jury could infer materiality.
    We next consider Conley's assertions of prejudicial
    effect.  Conley offers no evidence to support his theory that the
    petit jurors were improperly influenced by their sense of identity
    or "camaraderie" with Ms. LaBelle.  Absent such evidence, we cannot
    conclude that the mere possibility that some sort of bonding
    occurred between the petit jury and Ms. LaBelle substantially
    outweighs the probative value of Ms. LaBelle's testimony.
    Moreover, as the government points out, the petit jury's split
    verdict undermines Conley's theory of improper influence.  See
    United States v. Dworken, 
    855 F.2d 12
    , 29 (1st Cir. 1988) (jury's
    acquittal on one count indicates that it was not influenced by
    potentially prejudicial evidence).
    Conley's other claims of unfair prejudice stem from the
    district court's failure to explicitly instruct the jury with
    respect to the different standards of proof governing the grand
    jury's decision to indict and a petit jury's decision to convict.
    We find no unfair prejudice.  Any risk of juror confusion
    concerning the appropriate standard of proof was minimized by the
    district judge's thorough instructions concerning the presumption
    of innocence and the government's burden to prove its case beyond
    a reasonable doubt.  In addition, the district judge made it
    abundantly clear to the jurors on several different occasions that
    the indictment returned by the grand jury "is in no sense a part of
    the evidence that you will consider as you consider whether the
    government has met its heavy burden of proof of guilt beyond a
    reasonable doubt."  (Tr. Vol. I at 32).  Finally, the district
    judge explicitly requested Conley to submit any additions to the
    proposed jury instructions "in order to make it clear that in no
    way does receiving any testimony make the indictment a part of the
    evidence that the jury is to consider."  (Tr. Vol. III at 71).
    Conley failed to submit any such suggestions and cannot now
    complain of unfair prejudice.
    For the reasons discussed above, we conclude that the
    district court acted well within its discretion in allowing the
    government to call Ms. LaBelle to testify as to the scope of the
    grand jury investigation for the purpose of proving the materiality
    of Conley's statements.
    C.  Fed. R. Crim P. 6(e)(2)
    Conley next alleges that the district court erred by
    permitting Ms. LaBelle to testify because the government failed to
    petition the court in advance for a disclosure order as required by
    Fed. R. Crim. P. 6(e)(3)(C)(i) & (D).  We review Conley's claim de
    novo to the extent that he raises a legal issue with respect to the
    applicability of Fed. R. Crim. P. 6(e)(3)(C)(i) to the
    circumstances of this case.  See Civil v. INS, 
    140 F.3d 52
    , 58
    (1st Cir. 1998).
    Fed. R. Crim. P. 6(e) codifies the traditional rule of
    grand jury secrecy.  See Fed. R. Crim. P. 6(e).  Under subsection
    6(e)(2) grand jurors, attorneys for the government, and other
    personnel attached to the grand jury, are prohibited from
    disclosing matters occurring before the grand jury.  See Fed. R.
    Crim. P. 6(e)(2).  Of course, there are exceptions to this general
    rule, see Fed. R. Crim. P. 6(e)(3), and the government and Conley
    disagree with respect to which exception (if any) applies here.
    Conley contends that pursuant to subsection
    6(e)(3)(C)(i), 
    see supra
    n.9, the government was required to
    petition the district court for a disclosure order before calling
    Ms. LaBelle to testify at trial as to the scope of the grand jury
    inquiry.  Conley argues that the government's failure to comply
    with the specific procedures set forth in subsection 6(e)(3)(D),
    
    see supra
    n.9, constitutes reversible error.  The government
    asserts that it was under no obligation to petition the court for
    an order of disclosure because it was entitled under 6(e)(3)(A)(i)
    to disclosure as a matter of course.  We agree with the
    government.
    Subsection 6(e)(3)(A)(i) authorizes disclosure as a
    matter of course, without any court order, to "an attorney for the
    government for use in the performance of such attorney's duty."
    Clearly, government attorneys have a duty to prosecute perjury
    before a grand jury.  In the performance of this duty, "it has been
    standard practice for government attorneys to use the transcript of
    the grand jury proceedings in preparing a case for trial,
    refreshing the recollection of government witnesses, impeaching
    witnesses at trial, and prosecuting for perjury before the grand
    jury."  Wright & Miller, 1 Fed. Prac. & Proc. Crim. 3d  107
    (1999).  No court order is or has been required for this type of
    disclosure.  See id.; see also United States v. Garca, 
    420 F.2d 309
    , 311 (2d Cir. 1970) ("No purpose would be served by requiring
    the court to approve a use of grand jury minutes which is implicit
    in the duties of the United States Attorney.").  Although we have
    found no case law upholding the specific right of government
    attorneys to similarly call grand jurors to testify as witnesses at
    trial without prior court approval, we conclude that this means of
    fulfilling the government attorney's duty also falls within the
    scope of (A)(i).
    In this case, Ms. LaBelle disclosed to the government
    attorney information concerning the scope and purpose of the grand
    jury inquiry.  The purpose of this disclosure was to assist the
    government attorney in the performance of his duty to prove the
    materiality of Conley's statements, in order to prosecute perjury
    before the grand jury.  Such use falls squarely within the scope of
    Rule 6(e)(3)(A)(i) and thus the government was under no obligation
    to obtain prior court approval.
    2.  The Sufficiency of the Evidence
    The district court's denial of Conley's motion for
    judgment of acquittal presents a question of law, which we review
    de novo.  See United States v. Czubinski, 
    106 F.3d 1069
    , 1073 (1st
    Cir. 1997).  Like the district court, "we scrutinize the evidence
    in the light most compatible with the verdict, resolve all
    credibility disputes in the verdict's favor, and then reach a
    judgment about whether a rational jury could find guilt beyond a
    reasonable doubt."  United States v. Taylor, 
    54 F.3d 967
    , 974 (1st
    Cir. 1995).
    Count One of the indictment charges Conley with knowingly
    making false material statements before the grand jury with respect
    to whether he observed an individual later determined to be Officer
    Michael Cox, "chase, pursue, and grab hold of a suspect as that
    suspect ran toward and climbed a fence in his attempt to get away
    from police at or near Woodruff Way . . . on January 25, 1995."
    Count Three of the indictment charges Conley with corruptly
    endeavoring to obstruct the pending grand jury inquiry by making
    those false statements.  The exchange upon which these accusations
    are based went as follows:
    Q:     All right.  Now, officer Conley, when
    you were chasing the suspect as he went
    over to the fence, did you see another
    individual chasing him as well?
    A:     No, I did not.
    Q:     Did you see anyone else in plain
    clothes behind him as he went towards
    the fence?
    A:     No, I didn't.
    Q:     Did you see, as he went on top of the
    fence or climbed the fence, another
    individual in plain clothes standing
    there, trying to grab him?
    A:     No, I did not.
    Q:     When you saw the suspect get to the top
    of the fence, did you see another
    individual in plain clothes grabbing
    part of his clothing --
    A:     No, I did not.
    Q:     -- as he went over the fence?
    A:     No, I did not.
    Q:     So that didn't happen; is that correct?
    Because you saw the individual go over
    the fence?
    A:     Yes, I seen [sic] the individual go
    over the fence.
    Q:     And if these other things that I've
    been describing, a second -- another
    plain clothes officer chasing him, and
    actually grabbing him as he went to the
    top of the fence, you would have seen
    that if it happened; is that your
    testimony?
    A:     I think I would have seen that.
    (Tr. Vol. II at 235-36).  Conley argues that the government
    presented insufficient evidence at trial to prove that these
    statements were false.  We disagree.
    The weakness of the government's case lies in the absence
    of any direct evidence as to what Conley in fact observed during
    the early morning hours of January 25, 1995 in the cul-de-sac at
    the end of Woodruff Way.  But this weakness is not fatal.  As this
    court has recognized:
    Perjury cases, like all criminal cases, are
    susceptible to proof by circumstantial
    evidence, and in fact are peculiarly likely to
    be proven in this manner because one of the
    elements of the crime is that the defendant
    knew his statement was false when he made it.
    United States v. Moreno Morales, 
    836 F.2d 684
    , 690 (1st Cir. 1988)
    (quoting United States v. Chapin, 
    515 F.2d 1274
    , 1278 (D.C. Cir.
    1975)).  At trial, the government presented ample circumstantial
    evidence from which a rational jury could conclude that Conley's
    statements were false beyond a reasonable doubt.
    By comparing Conley's testimony about the timing and
    location of his actions with the testimony of Cox, Walker, and
    Brown, the jury reasonably concluded that Conley lied when he
    stated that he did not observe Cox chasing the suspect.  Conley
    testified that upon arrival at the scene, he observed Brown exit
    from the passenger side of the Lexus, run to the right, and climb
    over the fence.  Most significantly, Conley testified that "within
    seconds of seeing [the suspect] go over" the fence he scaled the
    fence at the same location.  (Tr. Vol. III at 15; Vol. II at 239).
    Both Cox and Walker placed Cox at the exact same time at
    the exact same place where Conley claims to have climbed over the
    fence.  According to their testimony, which we must view in the
    light most favorable to the verdict, see United States v. Olbres,
    
    61 F.3d 967
    , 970 (1st Cir. 1995), Cox was "right behind" Brown,
    approximately three feet behind him, as Brown approached the fence.
    (Tr. Vol. I at 77; Vol. II at 31).  When Brown reached the fence,
    Cox was even closer.  At that point, Cox was close enough to make
    contact with Brown and attempt to pull him back over the fence.
    Brown corroborated this version of events when he testified that a
    black man wearing a "black hoody" was behind him as he ran toward
    the fence and had just started to come over the fence after him
    when he observed the black man being struck on the head by a police
    officer.  (Tr. Vol. II at 94, 97, 98).  Brown confirmed that the
    person behind him was close enough to make contact with his foot as
    he scaled the fence.  (See Tr. Vol. II at 96).
    Conley's testimony that he scaled the fence "within
    seconds" of seeing Brown go over the fence, and that he scaled the
    fence in the same location as Brown does not square with the
    testimony of Cox, Walker, and Brown.  Conley's version of the
    events provides for no reasonable gap in time during which he could
    have missed observing Cox at the fence.  Indeed, Conley concedes
    that if the Cox/Walker/Brown version is true, he would have seen
    Cox at the fence.  (See Tr. Vol. II at 236).  In reaching its
    verdict, the jury apparently found the Cox/Walker/Brown version
    more credible.
    Our role on review is limited.  We must "resolve all
    credibility disputes in the verdict's favor."  
    Olbres, 61 F.3d at 970
    .  Based on the evidence, we find that the jury was entitled to
    credit the testimony of Cox, Walker, and Brown, and conclude that
    Conley's statements before the grand jury were false.  We thus
    affirm the district court's denial of Conley's motion for judgment
    of acquittal with respect to Counts One and Three.3.  Fed. R. Evid. 106
    Conley next contends that the district court abused its
    discretion in admitting into evidence excerpts of the transcript of
    his grand jury testimony, then denying his request to admit the
    transcript in its entirety for the purpose of placing those
    excerpts in a proper context as required by Fed. R. Evid. 106.
    The government maintains, however, that despite explicit
    questioning by the district court, Conley failed to articulate how
    or why the entire transcript would qualify or explain the excerpts
    offered by the government.  Therefore, the government contends
    that the district court acted well within its discretion in denying
    Conley's request.
    Under prevailing federal practice, objections to
    evidentiary rulings must be reasonably specific in order to
    preserve a right to appellate review.  See United States v.
    Holmquist, 
    36 F.3d 154
    , 168 (1st Cir. 1994) (citing United States
    v. Walters, 
    904 F.2d 765
    , 769 (1st Cir. 1990)).  A litigant's
    failure to sufficiently articulate the grounds for an objection
    bars the litigant aggrieved by the ruling from raising more
    particularized points for the first time on appeal.  See 
    id. In an
    attempt to avoid waiver of his Rule 106 argument under this
    general rule of practice, Conley now maintains that the relevancy
    of particular portions of his grand jury transcript only became
    apparent to him after the government's closing arguments.
    In his appellate brief, Conley points for the first time
    to two specific portions of his grand jury transcript that he
    claims should have been admitted into evidence under Rule 106.
    The first excerpt contains Conley's testimony that he was
    interviewed twice by Internal Affairs ("IA") about the Cox
    incident.  Conley argues that this portion should have been
    admitted into evidence under Rule 106 in order to place in proper
    context the portions submitted by the government in which Conley
    testified that he never identified himself to homicide detectives
    or the district attorney as the arresting officer on the scene on
    the night of the Cox incident.  The government submitted this
    evidence to suggest that Conley did not want to be identified as a
    witness to the Cox incident.  The problem with Conley's Rule 106
    argument is two-fold.  First, it is clear from the opening
    statements that Conley was aware that the government intended to
    introduce this evidence and to advance this theory of guilt.
    Thus, we find no reason to make an exception to our general rule of
    waiver.  Second, even if we did allow Conley to make this argument
    for the first time on appeal, we are not convinced that the
    district court's exclusion of this part of the transcript was
    error.  We fail to see how testimony to the effect that Conley was
    interviewed by Internal Affairs, and wrote a report of the incident
    pursuant to an order by the IA investigators, adds to the
    evidentiary value of the admitted excerpts.  In our view, a more
    relevant portion of the transcript from a Rule 106 perspective was
    Conley's explanation as to why he did not notify the homicide
    investigators or the district attorney's office of the arrest, and
    this portion appropriately was introduced into evidence.
    The second portion of his grand jury testimony that
    Conley claims should have been admitted is testimony concerning
    Conley's relationship with Officers Burgio and Williams.  At trial,
    the government presented excerpts of Conley's grand jury testimony
    in order to suggest that Conley lied about his involvement in the
    Cox incident because he wanted to protect his friends, Officers
    Burgio and Williams.  The government's submitted excerpts, however,
    included Conley's testimony to the effect that Officer Burgio was
    not a friend of Conley's, (See Tr. Vol. II at 246), and that
    although Conley became acquainted with Officer Williams at the
    police academy, he did not socialize or "go out for drinks" with
    him.  (Tr. Vol. III at 10).  The inclusion of additional testimony
    bearing on this issue was not necessary to place the government's
    excerpts in proper context under Fed. R. Evid. 106.
    In making determinations as to the completeness of
    proffered statements, the district court's judgment is entitled to
    great respect.  See United States v. Houlihan, 
    92 F.3d 1271
    , 1283
    (1st Cir. 1996).  We conclude that the district court acted well
    within its discretion in denying Conley's request that the entire
    transcript of his grand jury testimony be admitted into evidence.
    4.  The Jury's Request for a Ruler
    During jury deliberations, the district judge received a
    note from the jury requesting a ruler.  Over Conley's objection,
    the district judge granted the jury's request, and instructed the
    jury that the ruler was only to be used on exhibits which contained
    an approximate scale for measurement.  Conley contends that the
    district judge's decision to provide the jury with a ruler violated
    his right to confrontation under the Sixth Amendment to the United
    States Constitution, and requires reversal of his conviction.
    At the outset we note our disagreement with the
    government's characterization of a ruler as merely another generic
    tool to aid a jury in examining exhibits.  A diagram based on an
    approximate scale contains, by definition, imprecise distances and
    dimensions.  Therefore, pursuant to the district judge's
    instructions, the jury was using the ruler to obtain more precise
    information from an exhibit that was imprecise.  The use of a ruler
    under these circumstances is inherently different from the jury's
    use of a magnifying glass to more clearly observe photographs or
    fingerprints admitted into evidence.  See, e.g., United States  v.
    George, 
    56 F.3d 1078
    , 1084 (9th Cir. 1995) (jury used magnifying
    glass to examine fingerprint cards and gun); United States v.
    Young, 
    814 F.2d 392
    , 396 (7th Cir. 1987) (jury used magnifying
    glass to examine photographs).
    The weakness in Conley's argument, however, is that it
    fails to address the root of the problem: the original admission of
    the exhibit containing the approximate scale.  At trial, Conley
    never objected to the admission of Exhibits 7 or 7A, nor does he
    make such objection on appeal.  If, as Conley suggests, the
    distances and special dimensions of the area at Woodruff Way were
    critical to the government's charge that Conley must have seen Cox
    as Conley pursued Brown, Conley should have made a contemporaneous
    objection to the admission of such an imprecise depiction of the
    crime scene.
    A district judge's decision to provide a jury with
    requested material to aid in its examination of the evidence is
    reviewed for abuse of discretion.  See United States v. Rengifo,
    
    789 F.2d 975
    , 983 (1st Cir. 1986).  Under the circumstances of this
    case, we cannot conclude that the district judge abused his
    discretion in granting the jury's request for a ruler.  As the
    district judge reasoned, once the diagram was admitted into
    evidence, the jury's request for a ruler was both forseeable and
    reasonable.  Moreover, even if the request had been denied, there
    was nothing to prevent the jury from simply making its own, perhaps
    even more inaccurate, ruler.  Therefore, we conclude that the
    district judge acted within his discretion when he granted the
    jury's request.
    5.  Sentencing Issues
    Conley's main claim of sentencing error is that the
    district court erred in calculating his base offense level by
    cross-referencing to the sentencing guideline applicable to the
    underlying offense of aggravated assault.  We review the district
    court's factual determinations under the sentencing guidelines for
    clear error.  See United States v. Nez, 
    146 F.3d 36
    , 40 (1st Cir.
    1998).  However, we review the district court's construction of a
    sentencing guideline and its application of the guideline to the
    facts de novo.  See 
    id. The Sentencing
    Guidelines generally provide a base
    offense level of twelve for perjury and obstruction of justice.
    See U.S.S.G  2J1.2(a) & 2J1.3(a).  However, if the defendant
    committed perjury "in respect to a criminal offense," or obstructed
    "the investigation or prosecution of a criminal offense," the
    Guidelines direct the district court to use a cross-reference and
    sentence the defendant as an accessory after the fact "in respect
    to that criminal offense."  U.S.S.G.  2J1.2(c)(1) & 2J1.3(c)(1).
    Pursuant to these provisions, the district court cross-referenced
    to  2X3.1, the guideline applicable to those convicted of being
    accessories after the fact.  Section 2X3.1(a) provides a base
    offense level "6 levels lower than the offense level for the
    underlying offense."  U.S.S.G.  2X3.1(a).  The district court
    concluded that the "underlying offense" was the violation of
    constitutional rights by the intentional use of excessive force by
    police officers, in violation of 18 U.S.C.  241 & 242, and
    referred to the applicable sentencing guideline found at  2H1.1.
    On appeal, Conley does not challenge this initial cross-reference
    from  2X3.1(a), to the civil rights guideline found at  2H1.1.
    Rather, Conley challenges the district court's subsequent cross-
    reference from  2H1.1(a)(1) to the sentencing guideline applicable
    to the underlying offense of aggravated assault, found at  2A2.2.
    The crux of Conley's argument is that his acquittal on
    Count Two of the indictment, which charged Conley with lying about
    seeing Cox being beaten by Boston police officers, means that the
    underlying offense for which he is sentenced as an accessory after
    the fact cannot include the intentional use of excessive force.
    Conley argues that because he was only convicted of lying about
    seeing Cox chase the suspect to the fence and grab at him as he
    scaled the fence, the offense for which he is sentenced as an
    accessory after the fact should only include the other
    constitutional deprivations alleged in the indictment: namely, the
    failure to prevent the assault, and the failure to provide medical
    care.  Because these offenses are not referenced by the guidelines
    or by statute as separate underlying offenses, but rather are
    subcategories of the civil rights offense, Conley contends that
    2H1.1(a)(3) -- and not  2H1.1(a)(1) -- should apply.  We
    disagree.
    Conley's acquittal on Count Two has no bearing on what
    offenses were under investigation when he testified before the
    grand jury.  As the background section to the obstruction of
    justice guideline indicates, the cross-reference to  2X3.1 (the
    accessory after the fact guideline) is intended to provide an
    enhanced offense level for the crime of obstruction of justice when
    the obstruction is in respect to a particularly serious offense.
    See Commentary to U.S.S.G.  2J1.2(c)(1).  Consistent with this
    purpose, the application of the cross-reference does not depend on
    the defendant's actual conviction as an accessory after the fact to
    the offense under investigation.  See United States v. Martnez,
    
    106 F.3d 620
    , 621-22 (5th Cir. 1997);  United States v. Dickerson,
    
    114 F.3d 464
    , 467 (4th Cir. 1997); United States v. Gay, 
    44 F.3d 93
    , 95 (2d Cir. 1994).  Indeed, application of this cross-
    reference does not even depend on the defendant's specific
    knowledge of the underlying offense:
    [A defendant's] lack of knowledge of the
    specific offenses under investigation is
    irrelevant.  Neither  2J1.2(c)(1) nor  2X3.1
    requires such knowledge as a prerequisite to
    application of the offense level for the
    'underlying offense.'  All that is required is
    that the 'offense involved obstructing the
    investigation or prosecution of a criminal
    offense . . . .'   2J1.2(c)(1). [The
    defendant] knew there was a federal grand jury
    investigation into criminal offenses and that
    he knowingly and willfully attempted to
    obstruct it as the jury so found.  This is
    enough to trigger the cross-referencing
    provisions of the guidelines.
    United States v. McQueen, 
    86 F.3d 180
    , 184 (1st Cir. 1996).  Conley
    knew even more than the defendant in McQueen.  Conley knew that the
    grand jury was investigating the assault on Michael Cox by Boston
    police officers, and the trial jury found that he knowingly and
    willfully obstructed that investigation.  The fact that Conley was
    acquitted on Count Two is irrelevant for cross-referencing
    purposes.
    Conley further argues that the use of aggravated assault
    as the "underlying offense" under  2H1.1(a)(1) is barred by the
    plain language of the Commentary to this guideline.  The Commentary
    to  2H1.1(a)(1) states: "'Offense guideline applicable to any
    underlying offense' means the offense guideline applicable to any
    conduct established by the offense of conviction that constitutes
    an offense under federal, state, or local law."  Conley contends
    that his offenses of conviction are perjury and obstruction of
    justice, and that the only conduct established by these convictions
    is that he lied before the grand jury about observing Cox chase the
    suspect as he ran towards the fence.  As 
    discussed supra
    , the
    purpose of the cross-reference in both the perjury and obstruction
    of justice guidelines is to measure the gravity of those offenses.
    We conclude that  2H1.1(a)(1) is similarly employed, and that the
    sentencing court need not look exclusively to the offense of
    conviction.  This conclusion makes logical sense.  As other courts
    have observed, if the "underlying offense" was required to be the
    offense of conviction, perjurers and obstructors of justice would
    benefit from perjury or obstruction that successfully persuaded a
    grand jury not to return an indictment.  See United States v.
    Dickerson, 
    114 F.3d 464
    , 468 (4th Cir. 1997); 
    McQueen, 86 F.3d at 183
    .  The Commentary on which Conley relies relates to the
    substantive offenses involving individual rights.  These notes are
    not relevant under the circumstances presented here because  2H1.1
    (a)(1) is being used simply as a formula for the perjury and
    obstruction of justice offenses.
    Finally, Conley's argument ignores the specific finding
    of the district judge that Conley
    observed through his senses of sight and
    hearing enough to believe that Cox was being
    struck by other police officers and that his
    answering in a misleading and incomplete way
    the questions that were asked before the grand
    jury was obstructing the grand jury's
    investigation to determine whether criminal
    conduct of Boston Police Officers on the scene
    had occurred.
    (Tr. of Disposition Hr'g at 6). We review such factual findings
    only for clear error.  See 
    Nez, 146 F.3d at 40
    .  Based on the
    evidence presented at trial, 
    see supra
    , this finding does not
    constitute clear error.  Moreover, this finding further supports
    the district court's cross-reference to the underlying offense of
    aggravated assault.
    We next address Conley's objections to the district
    court's application of specific offense characteristics under the
    aggravated assault guideline.  In opposing these enhancements,
    Conley repeats the argument that his acquittal on Count Two bars
    the court from enhancing his offense level based on the specific
    characteristics identified in the aggravated assault guideline.
    For the same reasons that we uphold the district court's cross-
    reference to the underlying offense of aggravated assault, we
    uphold the district court's application of the specific offense
    characteristics provided for under the same guideline.
    Conley raises the same argument with respect to the
    district court's application of a six level enhancement based on
    the specific offense characteristic provided for under  2H1.1(b),
    namely, that the underlying offense was committed under color of
    law.  Again, for the same reasons that we uphold the district
    court's initial cross-reference to  2H1.1(a), we uphold its
    application of the six level enhancement pursuant to  2H1.1(b).
    Finally, Conley argues that the district court erred in
    denying his request for a four level reduction based on his role as
    a minimal participant in the underlying offenses.  See U.S.S.G.
    3B1.2(a).  In support of his request for such a reduction, Conley
    argued that the relevant criminal activity was the aggravated
    assault on Officer Cox.  The district court concluded, however,
    that the relevant criminal activity for purposes of  3B1.2 was
    Conley's perjury and obstruction of justice.  We agree with the
    district court.  We reiterate that the district court's
    characterization of the underlying offense as a civil rights
    violation, and, more specifically, as aggravated assault, was for
    the limited purpose of measuring the gravity of Conley's perjury
    and obstruction of justice offenses.  For all other purposes,
    Conley's offenses of conviction remain perjury and obstruction of
    justice.  Clearly, the district court did not err in concluding
    that Conley was not a "minimal participant" in these criminal
    activities.
    CONCLUSION
    Based on the foregoing, the defendant's conviction is
    affirmed.