* Of the United States Court of Appeals for the Tenth Circuit,

sitting by designation. 

# United Stat es Court of Appeals

For the First C ircuit

No. 02-2201 UNITED STATES, Appellee,

v. JOHN J. CONNOLLY, JR., Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge ]

Before Lipez, Circuit Judge , Porfilio, Senior Circuit Judge , * Howard, Circuit Judge .

Andrew Nathanson , with whom Tracy A. Miner , John J. Tangney, Jr. , and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. were on brief, for appellant. WilliamJ. Nardini , with whom John H. Durhamand Michael J. Sullivan , United States Attorney, were on brief, for appellee.

August 14, 20031 Connolly does not appeal his convictions for obstruction of

justice and making a false statement. -2- LIPEZ, Circuit Judge . At the conclusion of a three week trial, a federal jury found former Federal Bureau of Investigation ("FBI") agent John J. Connolly, Jr., guilty of one count of racketeering under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), two counts of obstruction of justice, 18 U.S.C. § 1503, and one count of making false statements, 18 U.S.C. § 1001. The distric t cour t

su bseq uentlyimposed a sentence of 121 months of imprisonment, followedby a two-year period of supervised release. Connolly now appeals his RICO conviction, arguing that he is entitled to a judgment of acquittal on the RIC O c harge because the government failedto prove two critical elements of its RICO charge — participation in an "e nter prise," and a "pattern of racketeering activity." See id. § 1961(4), (5) (defining "ente rprise " and "pattern of racketeering activity"). 1

Connollyalso appeals his senten ce, a rguing that the district court erred in its calculation of the applicable offense level pursuant to sections 2E1.1, 2J1.2, and 2X3.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). Finally, Connolly argues that the district court erred when it deniedhis request to convene a post-verdict evidentiary hearing to inquire into the propriety of alleged note-taking by jurors. He-3-

asks that we remand the case to the district court for an inquiry into possible juror misconduct.

Finding no r e ason to disturb Connolly's conviction or sentence or to remand to the district court, we affirm. I. We provide some general background facts here, saving our

more detailed discussion of the evidence for our assessment in Part II of Connolly's claims of evidentiary insufficiency. Connolly joinedthe FBI in 1968; from 1973 until 1990 he served as an agent in the Bureau's Boston office. During his tenure, he was responsible for handling several high-ranking, confidential informants with connections to two criminal syndicates — the Winter Hill Gang, and the New England branch of La Cosa Nostra. According to the government, the Winter Hill Gang is a "clandestine criminal organization engaged in multiple crimes, including murder, bribery, extortion, loan sharking, and illegal gambling in the greater Boston, Massachusetts area. " La Casa Nostra — a considerably larger, better known, and more established criminal organization — similarlyengages in illegal activities in and around Boston. Despite the fact that the Winter Hill Gang and La Cosa Nostra were often rivals , members of the two groups frequently cooperated in criminal undertakings.

Two of the informants for whom Connolly was responsible, James Bulger and Stephen Flemmi, were members of the Winter Hill2 The indictment also named Bulger as a defendan t on one

count. That count was ul timately dismissed on the government's motion after the issuance of the superceding indictment (which did -4- Gang. Bulger and Fl emmi repor ted on the activities of both the Gang and La Cosa Nostra for over a decade. Shortly after Connolly retiredfrom the FBI in 1990, however, Bulger and Flemmi were "closed" as FBI informants — i.e., the FBI no longer desired their services. After Bulger and Flemmi ceas ed t o serve as informants, their involvement with the Gang's criminal activities nonetheless continued. For example, at some point in the early 1990s, Flemmi, working with the "boss" of La Cosa Nostra's Boston family, Frank Salemme, ran an illegal "numbers" operation in the Boston area. On January10, 1995, a f ederal grand jury indicted Bulger, Flemmi, Salemme, and several other persons for multiple counts of illegal gambling, extortion, assault, bribery, obstruction of justice, loansharking, and RICO violations. See United States v. Salemme , No. 94-CR-10287- MLW-2 (D. Mass. Jan. 10, 1995) (indictment). Flemmi was quickly arrested and taken into custody. Bulger and Salemme, however, forewarned of the pending indictment, disappeared

a few days before its issuance. The authorities apprehend e d Salemme eight months later. Bulger remains at large.

The instant criminal proceeding began in December 1999, when another fed era l grand jury indicted Flemmi and Connolly on charges of racketeering, obstruction of justice, and c ons piracy. 2not name Bulger as a defendant). -5- Asuperceding indictment was filed in October 2000 with additional charges of obstruction of justice and making a f alse statement. According to the superceding indictment, Connolly had leda doublelife for over two decades. While serving as an FBI agent, Connolly hadbeen intimately involved in the criminal activities of the Winter Hill Gang and its members, receiving and making bribes from andon behalf of members of the Gang. Even after his retirement fromthe Bureau, C onno lly allegedly continued to exploit his connections within the Bureau to become privy to confidential information that he would then pass along to members of the Winter Hill Gang. Specifically, the superceding indictment included nine counts, which we summarize as follows:

Counts 1 & 2 – RICO and Conspiracy to Violate RICO, alleging that Connolly had, through a pattern of racketeering activity, participated in the affairs of an association-in-fact enterprise whose members included Bulger, Flemmi, himself, and unidentified others. The purpose of the enterprise was to protect Bulger, Flemmi, and their associates (including Salemme and members of the Winter Hill Gang) from arrest andprosecution, and to facilitate their criminal activities. The two counts detail fourteen different "racketeering acts," including allegations of bribery, extortion, and obstruction of justice. Count 3 – Conspiracy to Obstruct Justice, alleging that Connolly and Flemmi, together with others, had conspired to obstruct justice3 The remaining counts against Connolly were severed prior to

trial and ultimately dismissed on the government's motion. -6- in the prosecution of Bulger, Flemmi, and Salemme in United States v. Salemme . Count 4 – Obstruction of Justice, alleging that Connolly had informed Salemme of the pending indictment in United States v. Salemme . Count 5 – Obstruction of Justice, alleging that Flemmi had also provided Salemme with news of the pending indictment. Count 6 – Obstruction of Justice, alleging that Connolly had caused an anonymous letter to be sent to Judge Mark Wolf who was presiding over United States v. Salemme . The letter purported to come from three unnamed Boston Police Officers and credited certain claims made by the defense. Counts 7 & 8 — Obstruction of Justice, alleging that Connolly had persuaded Flemmi to give false testimony in United States v. Salemme . Specifically, Connolly persuaded Flemmi to testify that another FBI agent — and not Connolly — had aler ted him and Bulger to the pending indictment. Count 9 – False Statement, alleging that Connollyhad lied to an FBI agent when he told the agent that he had not been in contact with the defense team in United States v. Salemme . Flemmi ulti matel y pleaded guilty to Counts 3 and 5 (the only two counts in which he was named) and was sentenced to 41 months of imprisonment.

In May 2002, the trial against Connolly began on Counts 1, 4, 6, 7, and 9. 3 At the close of the government's case and at the close of all of the evidence, Connolly moved for a judgment of-7-

acquittal pursuant to Fed. R. Crim. P. 29. The court denied the motions. The jury returned guilty verdicts a gai nst Connolly on four of the five counts at issue — Counts 1, 6, 7 and 9 — and

ac quitt edon Count 4. Connolly renewed his Rule 29 motion after the verdict, and the court once again denied it.

On S ep tember 16, 2002, the district court sentenced Connollyto a term of incarceration of 121 m onths foll owed by a two-year period of supervised release. The district court denied Con nolly' s request for release on bail pending appeal, and we denieda similar, subsequent application. We now address Connolly's arguments of error by the trial court. II. Connollyclaims that he is entitled to a judgment of acquittal on the RICO count because the government faile d t o present sufficient evidence to prove beyond a reasonable doubt two essential elements of the RICO charge: (1) Connolly's participation in an "enterprise," and (2) a "pattern of racketeering activity," as defined by statute and applicable case law. See 18 U.S.C. § 1961(4), (5).

In evaluating a claim of insufficiency of the evidence,

we review the record de novo, and "[w]e will affirm the conviction if, 'after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that-8-

the prosecution successfully proved the essential elements of the crime.'" United States v. Boulerice , 325 F.3 d 75, 79 ( 1st Cir. 2003) (quoting UnitedStates v. O'Brien , 14 F.3d 703, 706 (1st Cir. 1994)). We "need not believe that no verdict other than a guilty verdict could sensibly be reached." United States v. Gomez , 255 F.3d31, 35 (1st Cir. 2001) (quoting United States v. Echeverri , 982 F.2d675, 677 (1st Cir. 1993)). Rather, the operative inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have foundthe essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (1979) (original emphasis).

To that end, a reviewing court mus t play "a very circumsc ribe drole in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests." United States

v. Blasini-Lluberas , 169 F.3d 57, 62 (1st Cir. 1999). We will give considerable deference to a jury's assessment of the evidence, and

we will disturb the jury's verdict only if it is premi sed upon "evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative." United States v. Czubinski , 106 F.3d 1069, 1073 (1st Cir. 1997). T hat is to say, we will

reverse only if the verdict is irrational. See United S tates v. Berrios , 132 F.3d 834, 843 (1st Cir. 1998) ("[W]e must consider the evidence in the light most favorable to the verdict and reverse only if no rational trier of fact could have found him guilty.").-9- The RICO count alleged a violation of 18 U.S.C. § 1962(c), which provides in pertinent part:

It shall be unlawful for any person empl oyed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. The meaning of "enterprise" and"pattern of racketeering activity" is explicated in § 1961:

(4) "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; (5) "pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any periodof imprisonment) after the commission of a prior act of racketeering activity; The Supreme Court has repeatedly indicatedthat courts shouldtake a "natural and commonsense approach" in assessing the elements of

a RI CO violati on. H.J. Inc. v. Northwestern Bell Tel. Co. , 492 U.S. 229, 237 (1989); see Reves v. Ernst & Young , 507 U.S. 170, 179 (1993); United States v. Turkette , 452 U.S. 576, 580–81 (1981); see also United Stat es v. Boyl an , 898 F.2d 230, 250 (1st Cir. 1990) ("In the absence of any pat formula, the Court has instructed us to

use a flexible approach . . . 'deriv[ing] from a common-sense, everydayunderstanding of RICO's language and Congress' gl oss on-10-

it.'") (quoting H.J. Inc. , 492 U.S. at 241). Against this backdrop, we now turn to Connolly's specific claims. A. "Enterprise" 1. The Charge

Count 1 of the super ceding indictment alleged that Connolly, Bulger, Flemmi, and others were members of an "enterprise," that is to say, "a group of individuals associated in fact," 18 U.S.C. § 1961(4), and that this enterprise,

through its members and associates, acted to protect James Bulger, Stephen Flemmi and their associates, including Francis P. Salemme and those in the Winter Hill Gang, from arrest and prosecution for criminal activities including murder, loan sharking, illegal gambling, extortion, obstruction of justice, and bribery; and it acted to facilitate those criminal activities of Bulger, Flemmi, and their associates. The indictment further alleged that t he e nterprise protected and fostered its members' criminal activities by

(1) providing Bulger and Flemmi with confidential law enforcement information regarding Grand Jury investigations, courtauthorized electronic surveillance, and other investigative efforts; (2) deflecting and squelching prosecutions and criminal investigations of their crimes; and (3) improperlypreserving their status as FBI informants through the filing of misleading official reports and by failing to report information relating to Bulger and Flemmi which was material to the investigation of criminal activity. The indictment distinguishes this association-in-fact enterprise fromthe Winter Hill Gang and La Cosa Nostra, though individual-11-

affiliations do overlap. The indictment also alleges that members of the enterprise committedfourteen different "racketeering acts," which includedseveral acts of bribery, obstruction of justice, and extortion. 2. The Evidence

Kevin Weeks, who identified himself as Bulger's "righthandman," was the government's star witness and provided substantial testimony regarding the exis tenc e of the enterprise. For example, Weeks testified that a special fund was created from

some of the proceeds of Bulger's and Flemmi's criminal activities, andthat Connolly received cash payments from that fund in exchange for a regular flow of information about law enforcement activities that might affect the group. Additionally, Weeks testified that Connolly was the enterprise's contact in the FBI, and that Bulger had given Connolly money in return for protecting the enterprise. According to Weeks, Bulger told him that Connolly was "one of ours." John Martorano, a member of the Winter Hill Gang, corroboratedWeeks's testimony regarding Connolly's repeated receipt of gratuities in exchange for information. Salemme likewise testified that he and Flemmi had twice set aside $5000 from the proceeds of their numbers racket to pay Connolly for the information he provided.

In return for these payments, Connolly provideda wealth of sensitive information, often with dir e consequences. For-12-

example, Martorano testified that Connol ly t old Bulger that an informant named Richard Castucci had provide d th e FBI with information regarding the whereabouts of two fugitive Winter Hill members. Bulger told Martorano of the leak, andMartorano in turn murderedCastucci in order to silence him. Mart orano also testifiedthat Conn oll y had told Bulger and others that another informant, Brian Halloran, had implicated Martorano in the murder of a recalcitrant associate, Roger Wheeler. Weeks testified that Bulger, upon learning from Connolly of Hal lor an's betrayal, ambushedHalloran as he got into a car outside a Boston restaurant, and fatally shot both Halloran and the driver, Michael Donahue.

Martorano also t esti fied that Connolly told Bulger and Flemmi that the FBI agents who had been working with Halloran were going to put pressure on another associate, John Callahan, to come clean about the Wheeler murder. According to Martorano, Connolly toldBulger and Flemmi that they were "all going to go to jail for the rest of our life if something doesn't happen to John Callahan." Wo rriedabout the possibility of a breach, Bulger and Flemm i convincedMartorano that Callahan had to be silenced. In an effort to deflect any attention away from the ongoing Boston investigation, Martorano lured Callahan to Flor ida where, with another associate, he murdered Callahan.

W eeks also testified that he and Bulger had exto rted a person named Stephen Rakes into selling them a South Boston liquor-13-

store. After Weeks had forcibly acquired ownership of the store, Rakes's wife went to her uncle, Joseph Lundbohm, who was a detective in the Boston Police Department. Lundbohmtestified that he, in turn, went to Connolly with the problem, and Connolly stated that nothing couldbe done unless Rakes agreedto wear a recording device. Lundbohm, out of fear for the safety of his niece and her husband, told Connolly that wearing a wire would be unacceptable. Connollydid not take any action to stop the extortionate takeover, nor did he report the incident to his superiors.

As for Connolly's efforts to derail the United States v. Salemme prosecution, Weeks testified that on December 23, 1994, Connollycame to the South Boston liquor store that Weeks and Bulger had extorted from the Rakes, looking for Bulger. Only Weeks

was on the premises, however, and Connolly led him to the inside of the walk-in refrigerator at the back of the store where electronic surveillance would be difficult. There, Connolly told Weeks that he had just learned that federal indictments were pending against Bulger andFlemmi and that agents plannedto make arrests over the holidays. Even though Connol ly no long er worked at the FBI, he told Weeks that he was certain of this information because it had

come from then-FBI Assistant Special Agent in Charge Dennis O'Callaghan. Connolly also indicated that only four people in the FBI knew about the pending indictment. Connolly instructed Weeks to pass along the informatio n t o Bulger and Flemmi immediately.-14-

Weeks did so. Flemm i, in turn , passed along the information to Salemme. Bulger and Salemme both skipped town andmanagedto avoid arrest. Salemme was ultimat ely arrested eight months later. Bulger's whereabouts remain unknown.

Week s al so testified that he and Connolly had worked together to compose a letter that they submitted anonymously to Judg e Mark Wolf, the United States District Judge presiding over the United States v. Salemme case. The letter, printed on Boston Police Department letterhead, claimed to be from three disgruntled Boston Police Officers, and stated that the wiretaps the government

was planning to use in its prosecution had been illegally obtained. Judge Wolf testified that the letter had caused hi m to order the parties to submit briefs, to hold a number of pretrial hearings, andto hear testimony on the contents of the lette r. Week s testified that Connolly eventually told him the identities of the confidential informants who had worn the wiretaps, and Weeks passed along this information to Flemmi and Salemme in jail.

Finally, Weeks testified that Connolly fearedthat Flemmi woulddivulge Connolly's involvement in the enterprise and name him

as the person who had leaked the news of the indictments. Connolly, through Weeks, convin ced Flemmi to testify that Connolly's former FBI supervisor, John Morris, had tipped him off about the indictments. However, Morris had been transferred out of Boston in 1991, long before the indictment issued. According to-15-

Weeks, Connolly advised Weeks that Flemmi should testify that Morris had learned of the impending indictmen ts through what is known as a "pros memo" (i.e., prosecution memo) that Morris had

seen while in Washington. Flemmi ultimately testified to that effect during hearings before Judge Wolf. 3. The Legal Requirements for an Enterprise

As the Supreme Court indicated in Turket te , the government is required to prove both the existence of an "enterprise" and a "pattern of racketeering activity."

The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of c riminal acts as defined by the statute. The former is proved by evidence of an ongoing organization, formal or informal, andby evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The "enterprise" is n ot the "pattern of racketeering activity"; it is an entity separate and apart from the pattern of a ctiv ityin which it engages. The existence of an enterprise at all times re mai ns a separate element which must be proved b y th e Government. Turkette , 452 U.S. at 583 (citation omitted). As this passage makes clear, an enterprise is not merely a related assortment of criminal activities. Rather, there must be some goal — "a purpose4 Racketeering A cts 1 through 10 allegedly took place during

Connolly's tenure as an FBI agent. Act 1 allege d that Con nolly took a bribe from Bulger and Flemmi. Acts 2 through 5 alleged that Connollypaid bribes to Morris on behalf of Bulger and Flemmi. Act 6 pertained to Connolly's in volvem ent in the extortion of Rakes. Acts 7 through 9 concerned Connolly's sharing of confidential law enforcement information that led to the killings of Castucci, Callahan, and Halloran. Act 10 alleged that Connolly, working with Morris, had informed Bulger and Flemmi of a court-authorized wiretap and an ongo ing grand jury investigation into illegal gambling activity. Racketeering Acts 11 through 14 allegedly took -16- of engaging in a course of conduct" — beyond the isolated benefit that can redound from the commission of each criminal act, and there must be an "ongoing or g anization" with "associates function[ing] as a continuous unit." Id. The organization need not be formal or have an "ascertainable structure." United States

v. Patrick , 248 F.3d 11, 19 (1st Cir. 2001). To the contrary, it need only be a "group of persons associated together for a common purpose of engaging in a criminal course of conduct." United States v. Owens , 167 F.3d 739, 751 n.6 (1 st Cir. 1999) (quoting UnitedStates v. Doherty , 867 F.2d 47, 68 (1st Cir. 1989)) (modification omitted). 4. Connolly's Arguments

a. Continuity Connolly argues that the evidence failed to demonstrate "that the members of the alleged enterprise had functioned as an ongoing organization" (original emphasis). In pressing this claim, he focuses on the fourteen racketeering acts alleged in the indictment. 4 These fourteen acts were submitted to the jury for aplace during the period 1994 to 1998, after Connolly had retired

fromthe FBI. All four involved obstruction of justice surrounding the United States v. Salemme case and are discussed in more detail in Part II.B below. Several of the Acts were broken down into subparts, each one having the same factual basis. For example, the indictment divided the sixth Racketeering Act into Act 6A and 6B, "either one of which alone constitutes Racketeering Act 6." As described on the verdict sheet, Act 6Aaccus ed Connolly of "aiding and abetting the extortion of Julie and Stephen Rakes," while 6B accused him of "aiding and abetting a conspiracy to extort Julie and Stephen Rakes." -17- determination of "proven beyond a reasonable doubt" or "not proven beyond a reasonable doubt." Of the fourteen, the jury found nine of them "not proven beyond a reasonable doubt." Of the racketeering acts found by the jury to be "proven beyond a reasonable doubt," one was an act of bribery in 1982 or 1983, and the other were four acts of obstruction of justice in the mid- to late-1990s i n co nnection with the United States v. Salemme prosecution.

Connollycites these findings t o ar gue that the government had failed to prove "continuity" in t he enterprise, i.e., that the enterprise had functioned as an ongoing organization over the period of time alleged, from September 1975 to September 1998. Since the jury found that all but one of the alleged racketeering acts dating from the 1970s and 1980s had not been proven beyond a reasonable doubt, Connolly argues that there was an insufficient basis for the jury to conclude that Connolly was part of an ongoing criminal enterprise. See , e.g. , United States v.-18-

Pelullo , 964 F.2d 193, 212 (3d Cir. 1992) (noting that RICO enterprises should be "distinguishedfromindividuals who associate for the commission of sporadic harm").

We reject this argument for two reasons. First, the government introduced significant evidence of the existence of the enterprise apart from the specified racketeering acts. For example, Weeks, Martor ano, and Salemme testified about several payments made to Connolly over the period in question that do not appear in the alleged racketeering acts. They also testified that these payments were made to guarantee the flow of confidential law enforcement information from Connolly to members of the enterprise. This test imony provided evidence of an ongoing criminal relation ship between Connolly and members of the enterprise, and supportedthe jury's ultimate finding regarding Connolly's participation in an ongoing association-in-fact.

Second, as the government correctly argues, simply because the jury found a specifi ed rac keteering act as "unproven beyonda reasonable doubt" does not mean that the juryfoun d the evidence relating to that act unpersuasive, in combination with other evidence in the case, on the existence of an association-infact enterprise. Rather, it may only mean that the government did not prove a requisite element of the underlying crime alleged as a racketeering act. For example, the district court instructed the jur ythat in order to prove Act 1 — that Connolly had acce pted a-19-

bribe — the government had to demonstrate that Connolly had "demanded, sought, or received a thing of value as a quid pro quo,

or in return for a promise, implicit or stated, to do or omit to do

a particular act in violation of his lawful duty." In returning a f inding of "unproven," the jury could have concluded that the evidence u nder lying Act 1, while failing to demonstrate this requisite quid pro quo, nev ert heless demonstrated a corrupt gratuity evidencing the existence of an illegal enterprise.

Likewise, Racketeering Act 7, as described on the verdict sheet, alleged that Connolly had committed obstruction of justice by "alerting Bulger that Richard Castucci was an informant." The district court instructed the jury that in ord er to prove obst ruct ion of justice, the government had to demonstrate that Connolly had knowingly endeavored to obstruct or impede a pending judicial proceeding. The court also instructed the jurythat "[a] judicial proceeding is pending once a grand jury, for example, begins its investigation or when an indictment has been returned." The jury might have concluded, however, that Connolly leak e d information rega rding Castucci for the purpose of frustrating an FBI investigation, and not to obstruct the grand jury proceedings.

H ence, the fact that nine of the fourteen enumer ate d racketeering acts were found "unproven" does not compel a finding of no continuity in the enterprise. The evidence relating to those acts remained available to the jury in its evaluation of the-20-

enterprise element of the RICO charge. Cf. United States v. Vastola , 899 F.2d 211, 222 (3d Cir.) (holding that findings of not guiltyon three of four alleged predicate racketeering acts do not mandate judgment of acquittal on RICO count), vacated on other g rounds , 4 97 U.S. 1001 (1990). That being so, the inquiry on appeal is whether the jury, in light of the total ity of t he evidence, was presented with sufficient evidence of "continuity" to support a conviction. See United States v. Powell , 469 U.S. 57, 67 (1984). Given the testimony of Weeks, Martorano, an d o thers recounting a regular course of criminal conduct over two decades, we have no difficulty in concluding that the government satisfied its burden on this point.

b. Organization Connollynext argues that the government failed to adduce sufficient evidence demonstrating "that the members of the alleged enterprise had functioned as a continuing un it " (original emphasis). Rather, as Connolly character ize s it, the evidence demon strated, at most, "the sporadic occurrence of [crimin a l racketeering] activity" by a group that had "no name, no regular business o r acti vities, no cohesion over time, no sense of membership or ongoing association, no sharing of resources or revenues, [and] no systemic linkage or coordination of activities." Hence, accordi ng to Connolly, there were "no indicia of an organization" and, therefore, no "enterprise."-21- We disagree with Connolly's appraisal of the evidence, as well as his reading of the term "enterprise." The evidence showed that Connolly, Bulger, Flemmi, Salemme, and others worked together in an as sociation-in-fact enterprise over a period of almost two decades, joining forces to protect themselves from prosecution and to further other criminal acti vities — some alleged in the indictment, and others not specifically alleged. There was cohesion in the group over time; the membership shared resources and revenues; there was, in fact, a sense of membership.

As for the meaning of "enterprise," there is no requirement under RICO that an e nterprise have an "ascertainable structure." Patrick , 248 F.3d at 19. Indeed, as the Supreme Court notedin Turkette , "[t]here is no restriction upon the associations embracedby the [statute's] definition," Turkette , 452 U.S. at 580, and "Congress has instructed us to construe RICO 'liberally . . . to effectuate its remedial purposes.'" United States v. London , 66 F.3d1227, 1243 (1st Cir. 1995) (quoting Pub. L. No. 9 1-45 2, § 904(a), 84 Stat. 922, 947 (1970) ( reprinted in note following 18 U.S.C. § 1961)). Hence an "enterprise" need only be "a group of persons associated together for a common purpose of engaging in a criminal course of conduct." Owens , 167 F.3d at 751 n.6; see also Boylan , 898 F.2dat 242 ("What counts is whether it can be said, on the totality of the evidence, that all of the alleged-22-

coconspirators directed their efforts towards the accomplishment of a common goal. . . .") (internal quotation marks omitted).

Construing the term "enterprise" broadly, as we must, we have no difficulty in concludin g that the association-in-fact alleged in the indictment was sufficiently "organized" to support

a RICO conviction, and that the government hadadequ ately proved the existence of that enterprise to sustain a conviction. Indeed, there was a discernable structure to the enterprise, with members playing designated roles in keeping the enterprise functioning as

a viable unit. For example, Martorano could be considered the head of the enterprise's enforcement division, executing individuals who couldprove to be a liability. Con nolly's role was that of information o ffi cer, i.e., an intelligence conduit from law enforcement. Weeks, as Bulger's "right-hand man," managed special funds andfunctioned as an intermediary between Bulger and others.

Connollyinsists, however, that Bulger, Flemmi, and others were actually members of the Winter Hill Gang, and that this somehow forecloses th e p ossibility of membership in another enterprise. We fail to follow this logic. As the indictment makes clear, the alleg ed enterprise in this case — while perhaps overlapping in membership and some criminal activities with the Winter Hill Gang and even La Cosa Nostra — was a separate entity, distinguishable from both of these o ther criminal organizations. Membership in the Winter Hill Gang does not, ipso facto, preclude-23-

membership in another criminal enterpris e. While the evidence demonstratedthat Bulger, Flemmi, and others were associates of the Winter Hill Gang, it also demonstrated that they were members of a separate enterprise dedicated to their own protection and the advancement of their own criminal activities. Moreover, evidence was presented suggesting that the enterprise was distinct (if not totallyseparate) from the Winter Hill Gang. For example, the jury heardtestimony th at part of the money that the enterprise's members extorted or otherwise illegally procuredwas u sed to pay bribes nec essary to ensure the enterprise's survival. Moreover, Bulger told Weeks that Connolly, who was not a member of the Winter Hill Gang, was nevertheless "one of ours." The jury could therefore have readilyinferred the existence of a continuing unit which included Connolly and was distinct from the Winter Hill Gang.

B. "Pattern of Racketeering Activity" 1. The Predicate Acts

Racketeering Acts 11 and 12 occurred in late 1994 or early1995 and concerned Connolly's tip-offs to Bulger, Flemmi, and Salemme regarding their indictment. Racketeering Act 13 occurred in March 1997 and concerned the fraudulent, anonymous letter that Connollysent to Judge Wolf purporting to be from three police officers. Racketeering Act 14 occurred in 1998 and concerns the5 In evaluating Connolly's argument regarding the "pattern of

racket eering activity" element, we do not rely on the "unproven" Racketeering Acts (1 through 3 and 5 through 10) described in note 4, supra . The Third Circuit, however, has indicated that a reviewing court need not be constrained by the jury's findings regarding the individual racketeering acts in determining whether the evidence, taken as a whole, supports an ultimate finding of guilt through a "pattern of racketeering activity." See Vastola , 899 F.2d at 222–23. Since the "proven" racketeering acts (11 through 15) establish the requisite pattern, we need not consider whether other evidence adduced at trial supports such a finding. -24- false testimony that Flemmi gave after being coached and directed by Connolly. 5 2. The Legal Requirements for a Pattern

While the RICO statute does not define in absolute terms what constitutes a "pattern of racketeering activity," it does set

a minimum requirement: proof of a pattern of racketeering activity "requires [proof o f] at least two acts of racketeering activity" within a ten-year period. 18 U.S.C. § 1961(5). The Supreme Court, interpreting RICO, has stated that "while two acts are necessary, theymay not be suff icien t." Sedima, S.P.R.L. v. Imrex Co. , 473 U.S. 479, 496 n.14 (1985). "It is not the number of predicates" that determines whether they constitute a pattern of racketeering activity; rather, it is "the relationship that they bear to each other or to some external organizing principle." H.J. Inc. , 492 U. S. at 238 (emphasis added). The two factors most pertinent to this determination, according to the Court, are relatedness and continuity. See id. at 239 ("It is this factor of continuity plus-25-

r elationship which combines to produce a pattern.") (origina l emphasis) (citation omitted).

Continuity, a ccording to the Supreme Court, can refer "either to a closed period of repeated conduct, or to past conduct that by its nature projects into the fu ture with a threat of repetition." Id. at 241. We have previously indicated that it is "'difficult to formulate in the abstract any general test' for the continuityrequired for a pattern." Apparel Art Int'l v. Jacobson , 967 F.2d 720, 722 (1st Cir. 1992) (quoting H.J. Inc. , 492 U.S. at 241); see also Efron v. Embassy Suites (P.R.), Inc. , 223 F.3d 12, 15 ( 1st Cir. 2000) ("We have more than once remarked upon the difficultyof articulating concrete guidelines for this 'continuity plus relationship' standardfor identifying a pattern."). In H.J. Inc. the Supreme Court noted that Congress chose not to define "pattern of racketeering activity" with any degree of specificity in the RICO statute. Hence, the Court instructed lower courts to adopt a flexible approach to RICO claims, employing a "commonsense, everydayunderstanding of RICO's language and Congress ' gl oss on it." H. J. Inc . 492 U.S. at 241. Lower courts, in turn, have repeatedlylooked to one guidepost contained in H.J. Inc. : "A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time," or by evidence that the acts "include a specific threat o f repetition extending indefinitely-26-

into the future." Id. at 242. Because RICO was intended by Congress to apply only to enduring criminal conduct, "[p]redicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement." Id. ; Efron , 223 F.3d at 15; Apparel Art , 967 F.2d at 723. 3. Connolly's Argument

Connollyconcedes that the fou r rac keteering acts at issue are sufficiently related for RICO purposes. Each act served to protect members of the enterprise. Connolly insists, however, that the four racketeering acts simply c onst ituted a "single criminal episode," that they did not present the threat of ongoing conduct, and that they therefore were not a pattern of racketeering activity. We disagree.

While we have previo usly indicated that "[w]e can be reasonablycertain" that the pattern requirement "does not encompass a single criminal episode, a single 'crim e' (in the ordinary, nontechnical sense of that word)," Apparel Art , 967 F.2d at 722 (original emphasis), we have also indicated that a "single criminal episode" is something narrow in sc ope and purpose, for example, a single interstate bank robbery. As we explained in Apparel Art , a bank robbery could include several different "crime s" (in t he technical sense of the word) — such as gun possession, threatening a teller, stealing a getaway car, and eventuallylying about one's participation — but they nevertheless6 The Second Circuit has noted that cour ts h ave been quicker

to find RICO violations "in cases where the acts of the defendant or the enterprise were inherently unlawful , such as murder or obstruction of justice, and were in pursuit of inherently unlawful goals." United Sta tes v. Aulicino , 44 F.3d 1102, 1111 (2d Cir. 1995). We agree with the common-sense conclusion that in such situations, there is a greater threat of future criminal conduct. Of course, as explained in the text, there is no hard and fast rule, and the fact that there may be "inherently unlawful" conduct underlying the RICO charge would not pre ven t us from concluding -27- do not add up to a "pattern of racketeering activity." See id. The instant case, howe ver, i s altogether different. Here, there

were at least three different "episodes" — the disclosing of the indictment, the fabricated letter, and the perjured testimony — each planned and executed independently of the others over a period of years, and each the result of detailedplanning and scheming by members of a criminal enterprise seeking to imp ede the criminal prosecutions of their cohorts. This is precisely the kind of activity that RICO was intended to forestall. See H.J. Inc. , 492 U.S. at 247–48.

As for the threat of future criminal conduct, the racketeering acts at issue were part of an ongoing criminal enterprise undertaken to facilitate future criminal acts by other members of that enterprise. The enterprise sought to insure that its members would never be brought to justice, and indeed, one of themis still at large. As the government describ es it, the enterprise engaged in a "do-whatever-is-necessary" long-term pattern of criminal activity that thre at ened ongoing criminal conduct of the sort that RICO was designed to prevent. 6 In short,that there was nevertheless no pattern of rac kete ering activity.

See , e.g. , Miranda v. Ponce Fed. Bank , 948 F.2d 41, 45–46 (1st Cir. 1991). -28- there was ample evidence supporting the jury's conclusion that the government had satisfied the "pattern of rack e teering activity" element of the crime. III.

In sentencing Connolly, the district court r elie d upon the Pre- Sent ence Report ("PSR") prepared by the U.S. Probation Office. The PSR calculate d th e appropriate sentence after navigating through a series of cross-ref eren ces as follows (with the cross-referenced subject matter underline dfor the reader's convenience):

C Un der U .S.S.G. § 2E1.1, the base offense level for a RICO conviction is the gr ea ter of either (i) 19, or (ii) the offense applicable t o the underlying racketeering activity , i.e., obstruction of justice.

C As for the underlying racketeering activ it y , under U.S.S.G. § 2J1.2, the ba se offense level for obstruction of justice is 12. Subsection (c), however, indicates that if the obstruction of justice interfered with the investigation or prosecution of a c ri minal offense, the court should look to § 2X3. 1 ( a ccessory after the fact ) with respect to the criminal o ffen se-29- obs tru cted, provided that the corresponding offense level is greater than 12.

C Section 2X3.1 provides that the base offense level for being an accessory after the fact i s 6 levels lower than the offense level for the underlying offense , but in no event less than 4, or more than 30.

C T he PSR identified first-degree murder as th e underlying offense because (1) Connolly's racketeering activities concerned the obstruction of the prosecution of United States v. Salemme , and (2) the most serious of the underlyin g o ffenses charged in the Salemme indictment was first-degree murder .

C Under § 2A1.1, the base offense level for first-degree murder is 43. Under § 2X3.1, however, the maximum base o ffense level for accessoryafter the fact is 30. The Probation Office therefore recommendeda base offense level of 30. The PSR determined that no adjustment was necessary for the multiple counts, or for any other reason, and that Connolly should be placed in Criminal History CategoryI. The corresponding sentencing range for Ca teg ory I, when combined with an offense level of 30, is 97 to 121 months.

At sentencing, Connolly challenged the calculation of the offense level, arguing that he was not "subjectively aware" of the

m ore serious charges alleged in the Salemme indictment, an d tha t-30-

first-degree murder should therefore not be considered the "underlying offense" u nder U .S.S.G. § 2X3.1. The district court properlyoverruled Connolly's obje ctio n. See United States v. McQueen , 86 F. 3d 180, 184 (11th Cir. 1996) ("Neither § 2J1.2(c)(1)

nor § 2X3.1 requires such knowledge as a prerequisite to application of the offense level for the 'underlying offense.'"). It then adoptedthe factual findings and the Guidelines calculation containedin the PSR, and sentenced Connolly to the maximum of the applicable range, i.e., 121 months.

On appeal, Connolly abandons his subjective knowledge argument and presses a new argument that the district court made a "basic mistake" in sentencing when it referenced the murder guideline "without conducting any fact-finding" as to what exactly constitutes the "underlying offense." Since Connolly raises this objection for the first time on appeal, we review for plain error only. United States v. Henderson , 32 0 F.3d 92 , 102 (1st Cir. 2003); see United States v. Grant , 971 F.2d 799, 803 ( 1st Cir. 1992) (noting that "as a general rule, appellant may not 'switch horses mid-stream' and raise new legal arguments not made the basis for objections in the district court"). Accordingly, Connolly "bears the burden of proving (1) an error, (2) that is plain, and (3) that affects substantial rights." United States v. DownsMoses , 329 F.3d 253, 263 (1st Cir. 2003). Assuming he can meet this high hurdle, Connolly m ust then demonstrate that the error-31-

"seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Matos , 328 F.3d34, 43 (1st Cir. 2003).

The plain language of the applicable sections of t h e Guidelines does not support Connolly's argument. The obstruction of justice guideline, § 2J1.2(c), provides that:

If the offense involved obstructing the investigation or prosecution of a criminal offense , apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense , if the resulting offense level is greater than that determined above. (emphasis added). We fail to s ee how this language obliges an evidentiaryinquiry into the substance of "that criminal offense." Moreover, the commentary to section 1B1.5 (go v erning the interpretation of cross-references) indicates that,

Areference may direct that, if the condu c t involvedanother offense, the offense guideline for such oth er offense is to be applied. . . . W her e there is more than one such offense, the most serious such offense . . . is to be used. U.S.S.G. § 1B1.5 , c omment. (n.1). The PSR followed these directives to the letter. The jury found that Connolly had obstructed the prosecution in United States v. Salemme at various times from late 1994 to mid-1998, including after the grand jury hadretu rned a superceding indictment charging Flemmi, Bulger, Salemme, and others with a number of crimes, including first-degree murder. The Probation Office reasonably looked to the most serious-32-

offense contained in the superseding indictment, and, as explained above, calculated the base offense level at 30.

This is not to say that a factual inquiry into the underlying offense would never be appropriate. For example, if a defendant were convicted of obstruction of justice for lying in a grandjury proceedi ng, a sentencing court would be justified in probing deeper into the nature of the underlying offense. Otherwise, the perjurer, through his false testimony, could cause

an indictment for a minor (instead of a serious) crim e to issue, andthen gain the benefit of his perjury if the court were to rely solelyon the indictment in determining the underlying offense. The converse, of course, is also true — an overzealous prosecutor couldseek to enhance the perjurer's sentence by spuriously convincing a grand jury to increase the counts in an indictment. Hen ce, the Fourth Circuit has held that, in such a situ ation, a factual inquiry into what constitutes the underlying offense would not be inappropriate. See United States v. Dickerson , 114 F.3d 464, 467–68 (4th Cir. 1997). The Ninth Circuit, citing Dickerson , indicatedin United States v. Arias , 253 F.3d 453 (9th Cir. 2001), that a factual inquiry into the underlying offense would be appropriate only if there were a " genuine dispute" as to its substance. Id. at 461 (emphasis added).

Connollyrelies unpersuasively on Dickerson and Arias in pressing his claim. Unlike Dic kerson, Connolly did not perjure-33-

himself before a gra nd jury, a nd there was therefore no risk of

over- or under-charging of the indictment. And unlike Arias , there is no genuine dispute in this case as to the unde rlying offense. When Connolly wrote the fraudulent letter to Judge Wolf, and when he instructed Flemmi on how to lie o n t he witness stand, the Salemme prosecution included charges of first-degree murder. Moreover, Weeks testifiedduring the trial that Connolly's goal was to get the entire case against Flemmi "tossed out," and substantial evidence adducedat trial supports that conclusion. Finally, even assuming that an inquiry into the underl ying offense would be appropriate in this case, and assuming it was error for the district court not to undertake that inquiry sua sponte , any such

error would be far from "plain," i.e., "clear, in the sense that it was obvious." United States v. Geronimo , 330 F.3d 67, 74–75 (1st Cir. 2003) (internal quotation marks omitted). Inde ed, th e fact that Connolly, who was ably represented by counsel below, only belatedlyturns to this argument, and cites only two cases from other jurisdictions, belies any claim that the error was truly "obvious." Since Co nnolly has failed to demonstrate that the district court committed any error — plain or otherwise — when it determinedtha t fi rst-degree murder was the "underlying offense" for purposes of U.S.S.G. § 2J1.2(c) and § 2X3.1, we affirm the sentence imposed by the district court.-34- IV. On the first day of trial, when the jury first entered into the courtroom, the district court judge noticed that one of the jurors was carrying a notebook. Without prompting from counsel, the judge informed the jury as follows:

I noticed one of you came in with a notebook. I just want to alert you that I do not permit note taking. I wa nt you to just sit and liste n to t he evidence and then use your collective memories as you deliberate at the conclusion of the case. Some very, very fine judges, colleagues, friends of mine, they do permit note taking. I don't. I want you to just sit back and pay attention. So that is the way we will proceed. Connollydid not object to this instruction, nor did he seek clarification or modification of it. The parties do not recall seeing any jurors taking notes in the courtroom over the course of the trial. Almost a month after the trial had ended, an article appeared in the Boston Globe which stated, in pertinent part:

Although the judge had prohibited jurors from taking notes during the trial, some jurors went ho me a nd jotted down testimony they had heardthat day, according to [two jurors]. "A coupl e of jurors took notes at night, which was very helpful [during deliberations]," [one juror] said. (secondmodification in original). Arguing that the jury may have reliedon "extraneous prejudicial information" during deliberations, Connolly filed a motion for an evidentiary inquiry into whether jurors had, in fact, taken notes during trial and7 Connolly unsuccessfully renewed this claim in his successive

applications for release pending appeal. The district court, denyin g the request for release, concluded that "no prejudice to the Defendant resulted fromthe jurors' considering notes they may have taken at night." In our order denying the same, we notedthe article's ambiguity with respect to whether the alleged notes actuallymade their way into the jury room, and, citing United States v. Bassler , 651 F.2d 600, 601–02 (8th Cir. 1981), we indicatedthat "[e]ven assuming that the jurors consulted these notes during de lib erations, it is far from clear that prejudice shouldbe pre sumed in the absence of a cautionary instruction [regarding the proper use of notes during deliberations]." -35- whether they had considered any such notes during their deliberations. In a brief order, the district court denied the request: On the first day of trial I told the jurors I

did not permit note taking during trial . . . . I did not, however, forbid the jurors from making notes of their impressions of the ev iden ce when not in court. Indeed, writing material was providedto the jurors in their deliberating room. It was expected that jur o rs would make notes and use them during their deliberations. There is no occasion for the inquiry requested by Defendant. Defendant's Motion, therefore, is DENIED. Connollynow assigns error to this decision, 7 asking that we remand the case for furth er i nquiry into this purported juror "misconduct."

We review the district court's response to an allegation of juror misconduct only for abuse of discretion. See United States v. Or tiz-Arrigoitia , 996 F.2d 436, 442 (1st Cir. 1993) (indicating that district court has broad discretion to "determine the nature and extent of its inq uiry" into juror improprieties); Mahoneyv. Vondergritt , 938 F.2d 1490, 1492 (1st Cir. 1991) (noting-36-

that district court judges have "broad discretion in determining how to respond to allegations of extraneous influence on jurors"); Boylan , 898 F.2d at 258 ("[T]he district court has broad discretion to determine the type of investigation which must be mounted.").

Federal Rule of Evidence 606(b) codifies the "n earuniversal and firmly established common-law ru le" that prohibits the admission of juror testimony to impeach a jury verdict. Tanner

v. United States , 483 U.S. 107, 117 (1987). There are significant policy considerations underlying such a rule, including finality, maintaining the integrityof the jurysystem, encouraging frank and honest deliberations, and the protection of jurors from subsequent harassment by a losing party. See McDonaldv. Pless , 238 U.S. 264, 267–68 (1915). Rule 606(b) does, however, create an exception to the common-law rule in situati o ns where "extraneous prejudicial information [is] improperly brought to the jury's attention." Fed. R. Evid. 606(b). Despite this exception, we have nevertheless warnedthat "[c]ourts generally 'should be hesitant[ ] to haul jurors in after theyhave reach ed a verdict . . . to probe for potential instances of bias, misconduct, or extraneous influences.'" Neron v. Tierney , 841 F.2d 1197, 1205 (1st Cir. 1988) (quoting United States v. Moon , 718 F.2d 1210, 1234 (2dCir. 1983)). A court should only conduct such an inquiry when "reasonabl e grounds for investigation exist," i.e., "there is clear, strong, substantial a n d incontrovertible evidence that a8 We have previously noted the Globe artic le' s ambiguity on

this point. See supra note 7. -37- specific, nonspeculative impropriety has occurred which couldhave prejudicedthe trial of a defe ndant." Moon , 718 F.2d at 1234 (citation omitted). Connolly cannot meet this high standard.

The Boston Globe article indicated that two jurors made notes at home some evenings regarding that day's in-court testimony. We agree with the district court that this note-taking, assuming it actually happened, was not incon sist ent with the court's instructions. The judge told the jurors that he wanted themto focus on the testimony, not in-court note-taking: "I want you to just sit back and pay attention." Such a prescript did not foreclose the possibility of note-taking outside of court. Indeed,

as the district judge noted, the jurors were provided with writing materials in the jury room from the outset of trial. Hence, the note-taking described in the Globe article didnot constitute juror misconduct.

Moreover, assuming that any notes actually made their way into th e j ury room during deliberations, 8 the notes cannot be considered an "extraneous" or "extrinsic" influence. In Bassler , the district court instructed the jury at the beginning of the trial that note-taking was not permitted. Like the two jurors in Connolly's trial, one of the Bassler jurors understood this instruction to mean that "no notes should be taken during the actual trial time but could be taken during recess or other times-38-

outside actual trial time." Id. at 602. The juror therefore took notes at t he end of each day, and these notes eventually found their way into the jury room during deliberations. The Bassler court held that the juror's daily notes could not be considered an improper "extrinsic influence" because they were, in fact, intrinsic . We agree, and "[i]nt rinsic influences on a jury's verdict are not competent to impeach a verdi ct. " Id. Hence Connollycannot rely on the notes to demonstrate prejudice. Cf. UnitedStates v. Balsam , 203 F.3d 72, 86 (1st Cir. 2000) (indicating that sharing of notes in open court by jurors does "not raise the same specter of prejudice as improper outside influences upon the jury") (emphasis added).

Even if the notes could, somehow, be cons ider ed "extrinsic," Connolly falls far short of p rovidi ng specifics regarding any prejudice. Instead, he only insists that the district court should have conducted "an inquiry." Tellingly, he does not suggest what form this inqui ry should take. Rather, he simplyasks that we remand with instructions to the district court to "do what has to be done to ferret out the truth." He does not identifyany witnesses he would call at an evidentiary hearing, or what the substance of any testimony could possibly be. Indeed, Connollyhas made no proffer of anyevidence other than the Boston Globe article. Instead, there is only speculati on, and mere-39-

spec ulation can hardly be considered "clear, strong, substantial and incontrovertible evidence." Moon , 718 F.2d at 1234.

We have repeatedly said that courts should respond to allegations of juror impropriety in a manner appropriate to the facts and circumstances at hand. See Ortiz-Arrigoitia , 996 F.2d at 443 ("The trial judge is not . . . shackled to a rigid and unyielding set [of] rules and procedures that compel any particular formor scope of inquiry." ); Bo ylan , 898 F.2d at 258 ("We abjure imposition of a rigid set of ru les for th e conduct of inquiries into t he pre sence or extent of extrinsic influences."); see also Moon , 718 F.2 d at 1234 ("[E]ach situation in this area is sui generis ."). Since we agree with the district cour t's co nclusion that its instructions to the jury did not preclude note-taking outside the courtroom, and since Connolly has failed to make any substantial evidentiary showing regarding prejudicial impropriety, the district court properly exercised its discretion in denying Connolly's motion for further inquiry. V. For t h e foregoing reasons, the judgment of conviction enteredon the jury's verdict and the sentence of the district court are AFFIRMED .

SO ORDERED .