Defendants Robert P. DeLuca, Sr. (“De-Luca Sr.”) and Gerard T. Ouimette appeal their respective convictions for conspiring to use extortionate means to collect extensions of credit, in violation of 18 U.S.C. § 894, and for aiding and abetting the use of extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 2, 894. Their principal claim asserts a violation of the Sixth Amendment right to a public trial,
see Waller v. Georgia,
I
BACKGROUND
At issue below were alleged extortion schemes directed against Paul Calenda, a Rhode Island factory and restaurant owner (“Calenda extortion”), and David Duxbury (“Duxbury extortion”). We relate the background facts in the light most favorable to the verdicts.
See Stewart v. Coalter,
A. The Calenda Extortion Scheme
The Calenda extortion was triggered by the March 1994 murder of Ronald Coppola, a close Mend and loansharking partner of appellant DeLuca Sr. Copрola had disclosed to DeLuca Sr. that he had advanced $125,000 to a Mend and business associate, Paul Calen-da. After the Coppola murder, DeLuca Sr. decided to collect the debt himself but was unable to arrange a meeting with Calenda. Eventually, DeLuca Sr. told Coppola’s widow, Paula, that he intended to give Calenda a “whack” in retribution for not meeting with him. At about the same time, DeLuca Sr. discussed Calenda with appellant Gerard Ouimette, who in turn informed another Coppola acquaintance, James “Slugger” Geller-man.
In January 1995 Ouimette told Paula Coppola that he would “break [Calenda’s] ... legs” if he failed to repay the $125,000 he owed Coppola. When Calenda denied owing either Coppola or DeLuca Sr., Ouimette and Gellerman visited Calenda at his factory in an effort to collect the Coppola debt. Subsequently, Ouimette confronted Paula Coppola at her home, where he told her boyMend, Robert Buehne, to summon Calenda by phone. When Calendа arrived at the Coppola residence Ouimette informed him that a power struggle had developed following Ronald Coppola’s death, which Ouimette intended to win, and that Calenda could either pay the $125,000, give Ouimette the restaurant Calenda owned, or risk being blown up in his ear.
Sometime around February 20, Ouimette and Gellerman appeared at the Calenda factory and announced that Ouimette intended to take over the Calenda restaurant. A few days later Ouimette met with Joe DeLuca, brother of appellant DeLuca Sr., to discuss the Calenda problem. Following their meeting, Ouimette told Gellerman that he wanted Calenda placed in sufficient fear to cause him to go to Joe DeLuca for help. A few days later Ouimette instructed Gellerman to give Calenda a “smack” and collect $50,000 rather than the $125,000 demanded earlier. Oui-mette told another underling, Paul Paren-teau, to accompany Gellerman.
On February 27 Gellerman and Parenteau met with Calenda at the Calenda factory. The meeting began with a handshake from *29 Gellerman, accompanied by a sudden, violent blow to Calenda’s head. Following the formal introduction, Gellerman instructed Cal-enda to have the $50,000 ready by the next day. Throughout the encounter, Parenteau remained by the door to prevent anyone from entering or leaving. When Gellerman reported back to Ouimette he was told to stay away from Calenda and not go back to the factory.
About the same time, Paula Coppola, Buehne and Calenda decided to cooperate in a joint investigation by the United States Drug Enforcement Administration (DEA) and the Providence Police Department; of Ouimette and DeLuca Sr. On March 6, during a telephone conversation recorded by the DEA, Buehne told Ouimette that Calenda had something for him and wanted to get together. After voicing concern as to whether Calenda was “on the level,” Ouimette agreed to the meeting, adding that DeLuca Sr., not Ouimette, had sent Gellerman to the factory to collect the debt and that Geller-man’s “impetuous” assault on Calenda had not been authorized by Ouimette. Ouimette also stated that he was going to warn Geller-man to stop using force because he wanted no part of “shakedowns [which] ... went out with the roaring twenties.”
Later that afternoon Ouimette and Calen-da met at Calenda’s condominium. During their surreptitiously videotaped meeting Oui-mette repeated the substance of his earlier conversation with Buehne and reassured Cal-enda that it had been DeLuca Sr. who sent Gellerman to the factory to collect from Cal-enda. When Calenda asked how much he would have to pay, Ouimette told him that he and DeLuca Sr. would accept $50,000 even though Calenda owed $125,000. Ouimette then agreed to accept $5,000 per week and Calenda paid him the first installment. Oui-mette explained that future installments were to be paid to Buehne, who would deliver them to Ouimette.
At that point Calenda protеsted that he owed Coppola nothing. Ouimette responded that he knew only what he had been told, then launched into a graphic description of Gellerman’s earlier assault against David Duxbury. See infra Section I.B. After assuring Calenda that-he planned to impress upon Gellerman the need to. refrain from using force in the future, Ouimette urged Calenda to call if anyone bothered' him or there was anything Ouimette could do to-help. Following the meeting with Calenda, Ouimette met Gellerman and told him that Buehne would be receiving $5,000 a week from Calenda, out of which Gellerman would get $1,000 weekly. Ouimette then handed Gellerman $1,000 and remarked: “Pauly’s [ie., Calenda’s] paying.”
On March 11, Ouimette joined Buehne and Paula Coppola at a Providence restaurant, where Buehne was to deliver a $5,000 installment from Calenda. Their conversation was recorded by the DEA, at whose instruction Buehne tendered Ouimette only $1,500 on the pretext that that was all Cal-enda had given him. Angered, Ouimette told Buehne that Calenda would be in danger unless he came up with thе $3,500 balance by the following Monday. Adding that “maybe [by] Tuesday he’s going to get a shot,” Ouimette also threatened to break the legs of Calenda’s longtime friend and housekeeper. Ouimette cautioned that he was unable to control Gellerman, then recounted an abbreviated version of Gellerman’s role in the Duxbury assault.
The next day the DEA and Providence Police assumed protective responsibility for Paula Coppola and Buehne, who ultimately entered into a witness protection program. Later, in several recorded conversations with Buehne, Ouimette indicated his continuing intention to collect from Calenda, stating that he would threaten violence to coerce payment.
Finally, an FBI search of the Ouimette residence on March 18 in Fall River, Massachusetts, disclosed currency bearing the recorded serial numbers of bills included in the $5,000 installment Calenda paid Ouimette on March 6 and the $1,500 partial installment Buehne delivered to Ouimette on March 11.
B. The Duxbury Extortion Scheme
On March 1,1995, as Ouimette аnd Geller-man were having a drink with codefendant Kenneth Raposa, Ouimette informed them that Robert DeLuca, Jr. (“DeLuca Jr.”) had *30 “a little problem”; someone was trying to “shake him down” for $2,500. Thereafter, Ouimette, Gellerman and Raposa went to the Satin Doll, a Providence nightclub, to confront David Duxbury who was suspected of the attempted “shake down.”
At the Satin Doll they escorted Duxbury to the basement, where Ouimette demanded to know why Duxbury was trying to extort money from DeLuca Jr. After Duxbury told Gellerman that “it was a joke,” Gellerman punched him in the face, causing his nose to bleed profusely. Thereupon, Ouimette grabbed Duxbury, slapped him across the face, told him to show DeLuca Jr. some respect, then informed him that he would have to pay a $5,000 “fine” by the next day for attempting to extort money from DeLuca Jr. As Duxbury wiped the blood from his face, Raposa kicked him twice and reminded him to bring the $5,000 “fine” payment the next day. The Satin Doll incident, lasting about ten minutes, was witnessed in part by three Satin Doll dancers.
Follоwing the assault, Duxbury contacted the FBI and volunteered to cooperate in its investigation of DeLuca Sr. and Ouimette. On March 2 Ouimette instructed Gellerman to collect the $5,000 “fine” from Duxbury. Upon learning that Duxbury was not at work, however, Gellerman told Parenteau to advise Duxbury that the $5,000 “fine” would be collected shortly.
C. The Trial Court Proceedings
A federal grand jury returned a five-count indictment charging Ouimette, DeLuca Sr., Gellerman, DeLuca Jr., and Raposa with conspiracy to collect extensions of credit by extortionate-means, in violation of 18 U.S.C. § 894, and with aiding and abetting the collection of extensions of credit by extortionate means, in violation of 18 U.S.C. §§ 2 and 894. 1 The government promptly filed infor-mations aimed at establishing the predicate convictions to enable enhanced penalties against Ouimette, Gellerman and DeLuca Sr., including mandatory life-imprisonment terms pursuant to the so-called “three strikes” provision, see id. § 3559(c).
One week prior 1 to trial the district court granted a government motion to empanel and partially sequester an anonymous jury. The court specifically relied upon its concern that ties between DeLuca Sr. and organized crime could lead to efforts to influence the jury. Appellants’ motions to sever their trials were denied as well. 2
On the second day of trial, appellants complained to the district court that deputy marshals were screening and recording the identification of all would-be trial spectators near the entrance to the courtroom. Appellants requested an evidentiary hearing to determine whether the unauthorized screening procedure amounted to a “closure” in violation of their Sixth Amendment right to a public trial. Adverting to the same security concerns which had prompted its earlier decision to empanel an anonymous jury, the district court denied the request for an eviden-tiary hearing and ratified the spectator-screening procedure.
Following a seven-day jury trial appellants were convicted on all counts. Ouimette was *31 sentenced to life imprisonment. The sentence imposed upon DeLuca Sr. was limited to 126 months because the government failed to establish the requisite predicate convictions for a “three strikes” enhancement. These appeals followed. 3
Noting the important Sixth Amendment concerns generated by the courtroom-spectator screening procedure, we retained appellate jurisdiction and remanded for factual findings relating to its ratification by the district court. In due course the district court conducted an evidentiary hearing and entered detailed findings.
II
DISCUSSION
A. The Anonymous Jury Empanelment
Appellants first contend that the decision to empanel an anonymous jury constituted an abuse of discretion.
See United States v. Childress,
Although the empanelment of an anonymous jury should be recognized as an extraordinary protective device, especially if it tends to suggest that the jurors may have something to fear from the accused, thereby conceivably encroaching upon the presumption of innocence,
see United States v. Krout,
Our review takes into account not only the evidence available at the time the anonymous empanelment occurred, but all relevant evidence introduced at trial.
See Krout,
First, the record links appellants to organized crime, a factor which strongly indicated that clandestine “outside” assistance might be brought to bear in any effort to intimidate or punish jurors.
See United States v. Ross,
Second, both Ouimette and DeLuca Sr. have long been involved in violent crimes, including robbery, assault with a dangerous weapon, larceny in a dwelling, and conspiracy to commit murder, not to mention their violent extortions in the instant case.
See United States v. Riggio,
Third, appellants also attempted to tamper with witnesses and to suborn perjury in the instant case. DeLuca Sr. and Ouimette, through intermediaries, pressured prospective prosecution witnesses, Paula Coppola and Robert Buehne, to pеrjure themselves, and offered $5,000 td another prospective government witness, David Duxbury, to abscond prior to trial. Thereafter, when Duxbury nevertheless showed up at a pretrial hearing, Ouimette told an associate: “If we can’t get [Duxbury], we’ll get one of his Mds.”
See United States v. Edmond,
Fourth, both Ouimette and DeLuca were confronting
mandatory lifetime sentences
upon conviction, which surely provided a strong inducement to resort to extreme measures in- any effort to influence the outcome of their trial.
See Ross,
Finally, the district court adopted prudent measures designed to safeguard defendants’ constitutional rights by informing the members of the jury that their identities would not be disclosed, so as to ensure that no extrajudicial information could be communicated to them during trial, either by the public or by media representatives. Thus, the court explained, the constitutional right of each defendant to a jury trial, based exclusively on the evidence, would be preserved.
In our view, the- district court thereby satisfactorily averted any unacceptable risk of intrusion upon the constitutional rights of the individual defendants by diverting juror attention from the possible perception that anonymous empanelment was a safeguard against defendants’ dangerousness.
See United States v. Darden,
B. The Procedural Impediments to Courtroom Access by Spectators
The United States Marshal, acting sua sponte on the first day of trial, established a screening and identification proсedure whereby each would-be spectator was required to present written identification before being allowed to enter the courtroom. Deputy marshals examined whatever written identification was presented, then recorded the type of identification and the bearer’s name, address and birth date. The recorded information was retained by the United States Marshal for use in determining whether the bearer had a criminal background or any connection with a defendant on trial, such as might indicate a courtroom security risk. On the second day of trial the district court ratified the spectator screening procedure over appellants’ objections. See supra Section I.C.
Appellants contend on appeal that the screening procedure violated their Sixth
*33
Amendment right to a public trial. As their claims have been preserved,
see United States v. Brazel,
The Sixth Amendment right to a public trial enures to the benefit of the criminal justice system itself as well as the dеfendant, by enhancing due process, encouraging witnesses to come forward, and enabling the public at large to confirm that the accused are dealt with fairly and that the trial participants properly perform their respective functions.
See Waller,
The government initially urges, as a matter of law, that the Sixth Amendment right to a public trial was never implicated in the present case because the challenged screening procedure effected neither a total nor a partial closure. According to the government, a “closure” occurs only if the trial court unconditionally excludes persons from the courtroom, but not if it simply imposes universal preconditions on courtroom access which have the incidental effect of barring only those persons who elect not to comply. To cite an obvious example, magnetometer screenings are designed to prevent armed spectators from entering the courtroom, yet no one would suggest that conditioning spectator access on submission to reasonable security screening procedures for dangerous weapons violates the Sixth Amendment right to a public , trial. Furthermore, the government correctly notes, no authority squarely holds that such “universal” preconditions to courtroom access constitute a Sixth Amendment “closure.”
Cf. Brazel,
Although we have yet to rule on the matter,
cf. Martin v. Bissonette,
Unlike the “total” closure in
Waller,
Relying on the requirement that a clоsure be “no broader than necessary” to promote the asserted justification,
Waller,
Although anonymous empanelment and partial sequestration may afford jurors significant protections beyond the confines of the courtroom, prophylactic procedures of an entirely different nature may be required to safeguard against attempts to intimidate jurors and witnesses in the performance of their courtroom responsibilities.
8
These dif-fieult judgments are matters of courtroom governance which require “a sensitive appraisal of the climate surrounding a trial and a prediction as to the potential security or publicity problems that may arise during the proceedings]”
Childress,
As the Eleventh Circuit acknowledged recently in relation to another spectator-screening procedure, given their many coincident duties trial judges cannot be expected to scan their courtrooms efficiently on a continuous basis for spectators whose very demeanor might represent an attempt to intimidate a witness or juror.
See Brazel,
These appellants either were directly associated with prior efforts to obstruct fair fact-finding through untruthful trial testimony, or were found to possess the present means as well as ample inducement (viz., avoidance of potential life sentences) to sponsor similar efforts in the case at bar, see supra Section II.A. Moreover, the challenged spectator-screening procedure was reasonably designed to respond to these concerns, as it plainly alerted would-be spectators that their courtroom conduct would be closely monitored, thereby efficiently focusing the desired deterrent effect principally upon those most likely to impede a fair and orderly trial— particularly appellants’ criminal associates. Thus, the challenged screening procedure represented a permissible response to defendants’ demonstrated capacity and motivation to undermine the administration of justice at their trial. 10
Finally, as the district court supportably found, their extensive criminal histories (not to mention the violent criminal activity alleged in the pending indictment) generated realistic concerns that appellants might circumvent normal courtroom security procedures, as by attempting to coerce or bribe authorized personnel to facilitate the introduction of weapons into the courtroom or elsewhere in the courthouse. 11
In our view, therefore, the district court order ratifying these screening procedures adequately addressed and significantly minimized the demonstrated potential for harassment and intimidation of jurors and witnesses by would-be trial spectators, for many of the same reasons that warranted the anonymous empanelment and partial jury sequestration. See supra Section II.A. Although any courtroom closure represents a serious undertaking which ought never be initiated without prior judicial authorization, we’ conclude that the partial closure in this case did not contravene the Sixth Amendment, given the strong circumstantial and historical evidence that precautionary security measures were well warranted and the essential constitutional guarantees of a public trial were preserved.
*36 C. The Motion to Sever 12
DeLuca Sr. contends that the government violated Criminal Rule 8(b) by joining Counts two and three with Counts one, four and five.
See United States v. Natanel,
Normally, the government may join multiple defendants in a single indictment provided that at least one count alleges a conspiracy or a continuing criminal enterprise (“CCE”) and the indictment separately alleges , that the appellant committed a substantive offense
[viz.,
the use of extortionate means by DeLuca Sr. to collect from Calenda] during the course and in furtherance of the “umbrella” conspiracy or CCE.
See id.
at 307;
see also United States v. Rehal,
In a related claim, see Fed. R.Crim.P. 14, DeLuca Sr. argues that he was severely prejudiced by the joint trial. Specifically, he claims, the district court abused its discretion by denying the motion for severance because Ouimette’s ominous statements to Paul Calenda—describing Gellerman’s violent assault on Duxbury—so inflamed the jury that it convicted DeLuca Sr. for the less violent Calenda assault merely because he associated with the brutal likes of Ouimette and Gellerman.
We review the challenged ruling only for manifest abuse of discretion,
Natanel,
First, a measure of evidentiary spillover is a foreseeable concomitant of virtually every joint trial, yet seldom indicates undue prejudice.
United States v. Yefsky,
Finally, the district court took prudent precautions against prejudicial spillover by repeatedly instructing the jury that it must consider the evidence against each individual defendant in relation to each count.
See Natanel,
D. The Jury Instructions 13
1. The “Guilt or Innocence” Instruction
Appellants challenge the district court instruction that the jury was to determine their “guilt or innocence.” We have cautioned that the term “innocence” may tend to undercut the presumption of innocence, as the jury might be prompted to convict where the evidence, though inadequate to prove guilt beyond a reasonable doubt, nonetheless indicated that the defendant may not have been “innocent.”
See United States v. Andujar,
Duly preserved jury-instruction challenges are reviewed for abuse of discretion,
United States v. Mitchell,
As there is no reasonable likelihood that the jury misunderstood the burden of proof the government was required to bear, we find no abuse of discretion. Among the seven references to “guilt or innocence,” five occurred in the earliest stages of the jury charge, interspersed with the unobjectionable phrase “guilty or not guilty.” Thereafter, the court explained or used the phrase “beyond a reasonable doubt” more than a dozen times,
15
emphasizing that “a defendant is
presumed to be innocent
unless and until the government proves the defendant guilty to your satisfaction beyond a reasonable doubt.”
Cf, e.g., Mendoza-Acevedo,
*38 2. The “Missing Witness” Instruction
Appellants challenge the refusal to allow their request for a' “missing witness” instruction to the effect that the government’s failure to call Robert Buehne and Paul Calenda as prosecution witnesses permitted the jury to infer that their testimony would have been unfavorable to the government.
We review district court rulings relating
to
“missing witness” instructions
for
abuse of discretion.
United States v. Lewis,
The cooperation rendered the government by Calenda and Buehne during the criminal investigation did not necessarily satisfy appellants’ burden of proof.
See United States v. Spinosa,
3. The “Missing Evidence” Instruction
The district court instructed the jury that it was to “focus on the evidence that has been presented and whether, in [its] judgment, that evidence does or does not establish the defendants’ guilt beyond a reasonable doubt,” and not “wonder[ ] about other things [viz., ‘facts that were not presented ... during the course of the trial’].” Ouimette contends that the latter instruction impropеrly suggested that the jury need not concern itself with whether the government proved, beyond a reasonable doubt, the “missing” facts which the defense deemed necessary to support Ouimette’s conviction.
Viewed in the context of the entire charge,
DeMasi,
E. Sentencing
1. The “Physical Restraint” Enhancement
DeLuca Sr. challenges the two-level enhancement which the district court predicated on its finding that Calenda had been “physically restrained” by Gellerman at
*39
the Calenda factory.
See
United States Sentencing Guidelines Manual §§ 2E2.1(b)(3)(B); 1B1.1, comment. (n.l(i)).
17
First, DeLuca argues that the enhancement does .not apply, since extortion almost invariably involves physical restraint.
Compare United States v. Mikalajunas,
DeLuca Sr. further contends that the district court incorrectly decided that the term “physically • restrained” encompassed the assault in which Gellerman struck and pushed Calenda, even though Calenda was never “tied, bound, or locked up.” U.S.S.G. § 1B1.1, comment. (n.l(i)). The examples listed in the guideline definition of “physically restrained” are merely illustrative, however, not exhaustive.
See id.
(‘“Physically restrained’ means the forcible restrаint of the victim
such as
by being tied, bound, or locked up.”) (emphasis added);
see also United States v. Rosario,
2. The “Three Strikes” Provision: “Serious Violent Felony ”
The “three strikes” provision mandates life imprisonment upon conviction for a “serious violent felony” under federal law following two or more prior convictions for “serious violent felonies” in either federal or state court. A “serious violent felony” includes a federal offense “consisting of ... extortion,” id. § 3559(c)(2)(F) (emphasis added), defined as “an offense that has as its elements the extraction of anything of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any person,” id. § 3559(c)(2)(C) (emphasis added). On the other hand, the offense of which Ouimette stands convicted defines “extortionate means” to include not only the threatened or actual use of violence against the victim, but the victim’s property as well. Id. § 891(7).
Ouimette contends that collecting extensions of credit by extortionate means, 18 U.S.C. § 894, is not a “serious violent felony” within the contemplation of the so-called “three strikes” provision,
id.
§ 3559(c)(1)(A). We review challenged interpretations of sections 3559(c) and 894
de novo. See United States v. Rasco,
The Supreme Court has held that under the Career Criminals Amendment Act, 18 U.S.C. § 924(e)—an anti-recidivist statute couched in language comparable to 18 U.S.C. § 3559(c),
see Taylor v. United States,
The extortion at issue requires no recourse to a record of prior conviction, but simply to the record on appeal. The indictment and jury instructions leave no doubt whatsoever that Ouimette was convicted of violent physical assaults against Calenda and Duxbury, thereby readily meeting the definition of “extortion” in subsection 3559(c)(2)(C) of the “three strikes” provision. 19
F. The Motion for New Trial
Finally, Ouimette challenges the denial of his motion for new trial. 20 The “new” evidence he relied upon consisted of affidavits from Paul Parenteau and Harold Drew, attesting that Ouimette did not order Gellerman to assault Calenda or Duxbury, but instead urged Gellerman to “lay off’ Calenda. Thus, these affidavits directly contradicted the testimony Gellerman gave at trial. ■ ■
A new trial should not be allowed based on newly discovered evidence unless the defendant “establishes that the evidеnce was: (i) unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial.”
United States v. Tibolt,
The district court found that the evidence proffered in the Parenteau and Drew affidavits would have been available at trial but for a lack of due diligence.
DeLuca,
Quite the contrary, since Ouimette participated in these conversations he must have known long before trial that the “exculpatory” testimony these witnesses could provide would be essential to respond to the evidence against him,
whether or not Gellerman were to testify. See United States v. Slade,
Furthermore, one week after pleading guilty Gellerman testified to these very conversations, leaving Ouimette seven days to locate Parenteau and Drew. At no time did Ouimette request a continuance to enable a search for either Parenteau or Drew, or invoke compulsory process to secure their appearance.
See United States v. Levy-Cordero,
Affirmed.
Notes
. Count one charged Ouimette and Gellerman with conspiring to collect extensions of credit from Paul Calenda and David Duxbury from December 12, 1994, to March 18, 1995. Count two charged that DeLuca Sr. conspired with Ouimette and Gellerman to collect extensions of credit from Calenda during the same time period. Ouimette and Gellerman were named unin-dicted conspirators under Count two. Count three charged DeLuca Sr., Ouimette and Geller-man with using extortionate means to collect from Calenda and to punish Calenda for nonpayment of an extension of credit over the same timе period. Count four charged DeLuca Jr. and Ra-posa with conspiring, from March 1 to 18, 1995, with Ouimette and Gellerman, to collect and attempt to collect extensions of credit by extortionate means from David Duxbury. Finally, Count five charged Ouimette, Gellennan, DeLuca Jr. and Raposa with collecting extensions of credit by extortionate means from Duxbury over the same time period and with punishing Dux-bury for nonpayment.
. The court allowed a severance relating to DeLuca Jr. and Raposa. Raposa's conviction has been affirmed in an unpublished opinion. See
United States v. Raposa,
. Five months after filing a notice of appeal Ouimette moved for a new trial, citing "newly discovered” evidence that he had been falsely implicated by Gellerman. The motion was denied on the ground that the supporting affidavits did not disclose "newly discovered” evidence.
United States v. DeLuca,
. Although appellants also challenge the partial sequestration ruling, we confine our direct discussion to the anonymous empanelment ruling since both rulings in context implicate essentially similar constitutional concerns
(i.e.,
their potential effects on the presumption of innocence).
See United States v. Edmond,
. A RICO conspiracy indictment previously filed . in United States v. DeLuca, Crim. No. 94-10287-MLW (D.Mass.), alleged that DeLuca Sr. belonged to the Patriarca crime family. The recorded conversations introduced at trial below contained statements by Ouimette relating to organized crime organizations based in New York.
. In 1982 the Rhode Island State Police stopped an automobile canying several convicted felons in possession of a metal piрe, a loaded firearm, and a list identifying the individual jurors empaneled to try Ouimette in a pending criminal case.
. While Ouimette maintains that no single factor ' warranted the anonymous empanelment, it is the totality of the circumstances which we consider.
See United States v. Darden,
. Nor, of course, do jury sequestration and anonymous empanelment afford protection or anonymity to prosecution witnesses, several of whom were eyewitnesses to appellants’ violent extortion practices and at least two of whom later were placed in a witness protection program.
. Appellants also point to the United States Marshal’s failure to run criminal background checks before spectators were allowed to enter the courtroom. Leaving asidе the practicability • of obtaining background checks in such short order, a matter on which the record is silent, screening procedures aimed at minimizing security risks and functional impediments to trial participants ought not be ruled infirm simply because they may not afford optimum protection. Rather, their deterrent value—in discouraging attendance by those most likely to pose a threat to courtroom security or to impede the factfind-ing function—represents a substantial benefit in its own right. In the same vein, we think it important to note that measures reasonably designed to ensure a trial which is not only public,
but fair,
ought not lightly be discounted in circumstances where the threat to both these constitutional goals stems from the defendants and their associates at large.
Cf. Woods,
. The district court noted its concern that the United States Mаrshal’s pretrial statement to the Providence Journal—that the spectator-screening procedure was for "intelligence” purposes— might have "chilled” public attendance. Appel- , lants suggest that readers may have understood that the data gathered through the screening procedure would be used for investigative purposes by other law enforcement agencies.
Although we are not unsympathetic to these concerns, the United States Marshal’s spontaneous remark to the press did not significantly alter the required Sixth Amendment calculus, for at least three reasons. First, though susceptible to overbroad interpretation, the remark was accurate. The information was retained by the Marshal’s Service for "intelligence” purposes; that is, to monitor any courtroom spectators whose identities suggested a risk of juror and witness intimidation efforts. Second, the large numbers of spectators in attendance at the trial each day belies any deterrent effect of constitutional dimension from the "Big Brother” syndrome suggested by appellants. Third, the district court . found that the information gathered was not made available to other law enforcement agencies.
.The district court specifically found that the courthouse entrances utilized by employees were not equipped with magnetometers and that authorized personnel could enter the. courthouse after hours and on weekends without risking detection. Moreover, there was no magnetometer screening device at the courtroom entrance.
. We review the denial of a Rule 8(b) misjoinder motion
de novo, United States v. Edgar,
. Although Ouimette challenges the "multiple conspiracy” instruction as well, we review only for “plain error” since neither defendant asserted a contemporaneous objection.
United States v. Olano,
. The government incorrectly contends that De-Luca Sr. failed to preserve the instant claim. The parties ’agreed that an objection by one defendant would serve as an objection by all and Ouimette made a contemporaneous objection. •
.As but one example, the court instructed: "And I want to emphasize it[,] in ordér for the government to prove a defendant gúilty of any offense, it’s got to convince you beyond a reasonable .doubt that it is [sic] proven each and every element beyond a reasonable doubt. Possibilities or even probabilities are not sufficient. If the government fails to prove any one or more of the elements' of an offense beyond a reasonable doubt, thеn you
must find the defendant not guilty
of that particular offense.” (Emphasis added.)
Cf. Mendoza-Acevedo,
. Furthermore, the instruction set forth a perfectly valid proposition: the jury is not to base its verdict on speculation, i.e., matters not evidenced at trial.
. Sentencing guideline interpretations are reviewed
de novo, see United States v. Joyce,
. Since- Mikalajunas was decided under § 3A1.3, the analogous "physical enhancement” genetically applicable to all guideline offenses, we intimate no position regarding its direct holding. '
.Ouimette argues also that the "three strikes” provision contravenes the Eighth Amendment right to be free from cruel and unusual punishment. Rulings on the constitutionality of a statute are reviewed
de novo. United States v. DiSanto,
. We review only for manifest abuse of discretion.
United States v. Tibolt,
. Although appellants raise numerous other challenges to their convictions and sentences, none merits discussion.