provides general information only. Please consult with an attorney if you need legal advice.
The Family Medical Leave Act (“FMLA”) provides unpaid, job-protected time off to covered workers. Covered workers are allowed to take up to 12 weeks of unpaid leave a year to care for themselves or covered family members, and up to 26 weeks to care for covered servicemembers. This document provides information about the FMLA’s military family leave provisions.
Enacted in 1993, the FMLA allows eligible employees to take up to 12 weeks per year of unpaid, job-protected leave for: (1) the birth or adoption of a child; (2) the “serious health condition” of the employee; or (3) the “serious health condition” of the employee’s immediate family member. An “eligible employee” is someone who: (A) works for a private employer with at least 50 employees, or for a government agency; (B) has worked for his or her employer for at least one year; and (C) has worked for over 1,250 hours during the previous 12-month period.
FMLA leave need not be paid, but an employee may substitute any accrued paid leave for FMLA leave. In addition, the FMLA contains an anti-retaliation provision that prohibits employers from interfering with an employee’s exercise of any FMLA right. Employees who believe their FMLA rights have been violated may file a complaint with the Department of Labor (“DOL”) or bring a lawsuit directly against an employer.
Two new types of FMLA leave specifically designed to support military families have been created: (1) qualifying exigency leave, which allows eligible employees to take up to 12 weeks of job-protected time off to cope with the difficulties of having a deployed family member; and (2) military caregiver leave, which allows up to 26 weeks of time to care for a covered servicemember with a serious injury or illness. Employees may not take more than 26 workweeks of leave in a year for any FMLA-qualifying reason.
This provision allows eligible employees (subject to the FMLA’s eligibility requirements listed above) to take up to 12 weeks of FMLA leave. In addition to the other requirements, the employee must be the spouse, son, daughter, or parent of a servicemember on covered active duty deployed to a foreign country. Qualified exigency leave now covers family of all members of the Guard, Reserve, and Regular Armed Forces.4 The 12 weeks of allotted FMLA leave may be taken as needed by the employee, including in increments measured by hours instead of days or weeks.
1) Short-notice deployments of up to 7 days to address issues arising from the notification of an impending call to active duty.
2) Military events and related activities such as ceremonies, programs, events, or information briefings related to active duty or a call to active duty.
5) Counseling related to active duty or the call to active duty provided by someone other than a health care provider.
6) Rest and Recuperation for up to 15 days during deployment.
7) Post-deployment activities such as reintegration events up to 90-days after active duty terminates or dealing with the death of a servicemember.
8) Parental care leave for a member’s parent who is incapable of self-care and the care is necessitated by the member’s covered active duty.
9) Additional service related activities as agreed to by employer.
3. Otherwise on the temporary disability list for a “serious injury or illness.” A “serious injury or illness” is one that is incurred in the line of duty and may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating.
A “covered servicemember” may include veterans who served within 5 years of the date of treatment, and have pre-existing injuries aggravated during active duty service.
What do I have to do to take FMLA leave?
Both types of military FMLA leave may be taken intermittently or on a reduced schedule. The employee must give notice of the need for leave at least 30 days in advance or as soon as practicable. The employee must also take reasonable efforts to schedule treatment at a time that does not unduly disrupt the business operations of the employer. In addition, an employer may ask for written proof of the need for leave.
1 9 U.S.C. §§ 2601–2654.
2 Pub. L. No. 111-84 § 565 (2009); Pub. L. No. 110-181 § 585 (2008).
3 29 U.S.C. § 2612(a)(1)(E); 29 C.F.R § 825.126 (a).
4 29 U.S.C.§ 2611(14); 29 C.F.R. § 825.126(b)(2)(i)-(ii).
5 29 C.F.R. § 825.126.
6 This is for exigent needs from deployment only, including: (1) arranging for alternative care when the call to active duty requires change; (2) providing care on an urgent basis; (3) enrolling in or transferring to a new school or day care; or (4) attending meetings with a school or day care. 29 C.F.R. § 825.16(a)(3).
7 FMLA leave may be requested to make financial and legal arrangements if: (1) it is necessary to make or update financial or legal arrangements to address the absence of the servicemember; or (2) to act as the servicemember’s representative for purposes of obtaining, appealing, or arranging for military benefits. See 29 C.F.R. § 825.16(a)(4).
8 29 U.S.C. § 2612(a)(3); 29 C.F.R.§ 825.127.


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[321 U.S. 489, 490] Mr. Paul A. Freund, of Washington, D.C., for petitioners.
Mr. Richmond B. Keech, of Washington, D.C., for respondent Public Utilities Comm.
Mr. Stoddard M. Stevens, Jr., of New York City, for respondent Washington Gas Light Co.
Certiorari was granted in this case, 320 U.S. 730 , 64 S.Ct. 191, at the insistence of the Director of Economic Stabilization and the Administrator, Office of Price Administration, of the United States, to review a rate order of the Public Utilities Commission of the District of Columbia. The application and effect of the Emergency Price Control Act of 1942,1 and the Act of October 2, 1942,2 are involved.
The petitioners, who were intervenors before the Commission, appealed from its order to the District Court of the District of Columbia, which set aside the order as arbitrary and illegal. 3 The Court of Appeals for the District of Columbia reversed the District Court. 4 Understanding of the questions presented requires a detailed statement of their historical background.
The Commission was created, and its powers and duties defined by Act of Congress in 1913, supplemented in 1926, 1935, and 1939.5 References will be to the District of Columbia Code, 1940 edition. The statutes require public utilities within the District to furnish safe and adequate facilities, just and reasonable service, at reasonable, just and nondiscriminatory rates, and to obey the lawful orders of the Commission ( 43-301). There are detailed provisions respecting rates and depreciation ( 43-315). For the purpose of its functions, the Commission is directed to value 'the property of every public utility within the District of Columbia actually used and useful for the convenience of the public at the fair value thereof at the time of said valuation.' ( 43-306.) Nothing in the statute is to [321 U.S. 489, 492] be 'taken to prohibit a public utility, with the consent of the commission, from providing a sliding scale of rates and dividends according to what is commonly known as the Boston sliding scale, or other financial device that may be practicable and advantageous to the parties interested.' But no such arrangement is lawful until found by the Commission, after investigation, to be reasonable, just, and not inconsistent with the purposes of the Act. Such arrangement must operate under the supervision and regulation of the Commission, may be altered and amended, and may be terminated by the Commission ( 43-317). Usual powers to fix rates, charges, and make rules and regulations are conferred ( 43-411). The Commission may make rules and regulations to govern its proceedings and to regulate the mode and manner of investigations and hearings before it ( 43-402). Appeal from its orders is authorized, and the scope of review defined ( 43-705, 43-706).
Pursuant to its authority, the Commission initiated in 1931, and concluded in 1935 a proceeding for the valuation of the property of the Washington Gas Light Company, at an expense of some $750,000 and arrived at a depreciated rate base as of 1932. It then entered upon a further inquiry as to rates. After this had lasted some time it approved and adopted a sliding scale arrangement, which involved a rate base, to be adjusted annually by adding net property additions at cost, a rate of return, and a rate of accrual to retirement reserve, in the light of which the rates of the company were to be adjusted annually. It found that the plan was practical and would be advantageous to all parties interested. This plan calls for an annual determination of the rate of return earned during the 'test year', and of the amount available for rate increase or decrease for the succeeding 'rate year', and schedules and regulations to accomplish such increase or decrease. Such determination is to be made after public [321 U.S. 489, 493] notice and opportunity for hearing. The plan defines a rate year as 'the twelve months' period from September 1st to August 31st, inclusive,' and the test year as 'the twelve months' period ending ... June 30th preceding the rate year.' At the inception of the plan, rates were reduced by some $800,000 annually, and subsequent annual hearings and determinations resulted in rate reductions in each year after 1935, except in 1937 and 1941, when no changes were made.
The duration of the system was not prescribed but in its order the Commission stated that it construed the statute to permit a termination upon reasonable notice, and found that ninety days' written notice of termination by Commission or Company would be reasonable.
March 20, 1942, the Commission issued its order of investigation in conformity with the sliding scale arrangement. After preliminary investigation by its agents and the representatives of the company, the Commission, pursuant to statutory requirement, issued, on July 21, 1942, notice of hearing as to rates, charges, and regulations which were to become effective September 1, 1942, in accordance with the sliding scale arrangement. The Price Administrator was given leave to intervene and was represented at a prehearing conference and at all hearings, and his counsel was permitted to cross-examine witnesses and to offer testimony. These began August 18 and continued on August 19, September 4, 8, 11, and 14, and closed on the last named date. The Commission stated that it would welcome testimony with relation to the aims and purposes of the Office of Price Administration during the national emergency and the relation of those aims and purposes to the proceedings, and expressed the hope that the Administrator, as intervenor, would develop testimony along lines which would enable the Commission to determine whether an increase should be granted in view [321 U.S. 489, 494] of the national emergency. The Administrator's counsel offered evidence, cross-examined witnesses, argued and filed a brief.
On application of other parties, the proceedings were reopened and further hearing had September 30th. Counsel for the Administrator participated and filed a second brief. The hearings were again closed, and, October 13, the Commission issued its findings, opinion and order.
After final submission, and before promulgation of the Commission's order, the Emergency Price Control Act was amended by the Act of October 2, 1942, which, while prohibiting the President from suspending that portion of the original Act exempting public utilities from the scope of the statute, provided: 'That no common carrier or other [321 U.S. 489, 495] public utility shall make any general increase in its rates or charges which were in effect on September 15, 1942, unless it first gives thirty days notice to the President, or such agency as he may designate, and consents to the timely intervention by such agency before the Federal, State, or municipal authority having jurisdiction to consider such increase.' 50 U.S.C.A.Appendix, 961.
On the showing of the Commission's staff, the company would have been entitled, under the sliding scale, to an increase in rates of $324,718. The increase approved by the Commission was $201,424, effective September 1, 1942. In its order, however, the Commission directed the company's attention to the provisions of the Act of October 2, 1942, and quoted its language. Accordingly the company, October 14, 1942, served notice upon the Director of Economic Stabilization, who had been designated for the purpose by the President, of the proposed increase in rates together with a copy of the Commission's order and later consented to his intervention. The court below has found that the requisite notice and consent to intervention was given by the company in accordance with the Act.
The Commission reconsidered the record and the testimony and, November 9, issued its order in which it reviewed the proceedings and found that the evidence adduced failed to show that the rates authorized by order No. 2401 were unduly inflationary. It denied the Director's petition to vacate the order. Thereafter the company put the new rates into effect as of November 16th. On appeal by the petitioners, the District Court held that the action of the Commission, in the light of the record, was arbitrary and illegal, and vacated the order. The Court of Appeals reversed, holding that the Commission had afforded petitioners full opportunity for a hearing upon any question which, under the law and the rules of the Commission, was open in the proceeding and that it was not arbitrary or illegal for the Commission, on the record made, to deny the abandonment of the sliding scale plan and the prosecution of an entirely new rate investigation involving fair value, depreciation, rate of return [321 U.S. 489, 497] and other elements commonly considered in such an investigation.
The petitioners seek vacation of the order on the ground that the Commission denied them a full and fair hearing. This contention is based upon the substantive contention that under the Acts of January 30 and October 2, 1942, they were entitled to demand that the Commission enlarge the scope of the hearing and convert the inquiry into one whether an increase of rates was necessary to the company to prevent hardship. The Commission on the other hand, insists that it was entitled to conduct the proceedings in accordance with its statutory powers as they existed prior to 1942, and, at most, accord the petitioners a full hearing as to the effect of any order in its relation to inflation in the war emergency. Thus it appears that the controversy is essentially one between two governmental agencies as to whether the powers of the one or the other are preponderant in the circumstances.
In view of the petitioners' insistence that they were entitled, in effect, to control and direct the inquiry without regard to the statutory powers of the Commission, we shall first examine the extent of the authority conferred upon petitioners by Congress.
The Emergency Price Control Act of 1942, while it gives the Administrator power over prices of 'commodities', which are not generally regulated by public authority, specifically and expressly withholds from the Administrator jurisdiction over public utility rates. And, as we have noted, the Stabilization Act of October 2, 1942, did not alter this prohibition but required merely that no utility should generally increase rates in effect September 15, 1942, unless it first gave thirty days' notice to the President or his representative and consented to the timely intervention of that representative before the federal, state, or municipal authority having jurisdiction to consider the increase. [321 U.S. 489, 498] It is not clear that this language confers a right of intervention. The bill as passed by the Senate contained a provision that there should be no increase in utility rates unless they were approved by the President. The House refused to concur, with the result that only the language now contained in the proviso appeared in the bill. The assertion that, while the Price Administrator or the Director may present his views to the regulatory body 'he had nothing to say about its decision', was made and not contradicted on the Senate floor in discussion of the conference report. Evidently Congress intended to grant the Administrator plenary control over commodity prices, since they generally were not the subject of local regulation, but in both the original Act and the amendment, as this court has recently said in Davies Warehouse Co. v. Bowles, 321 U.S. 144, 154 , 64 S.Ct. 474, 480, was careful 'to avoid paralyzing or extinguishing local institutions'. Thus it limited the right of the Executive to notice by the utility and the utility's consent that the Executive might be heard by the regulatory body having final authority in the premises.
If the petitioners were admitted as intervenors by a state commission, or by the District Commission, which is a respondent here, they might, of course, be admitted to participation in the proceeding upon reasonable terms; and one of the most usual procedural rules is that an intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding. To this effect was the Commission's rule on the subject. It would seem then that, in the absence of clear legislative mandate to the contrary, the petitioners should not possess greater rights than other intervenors.
This the petitioners deny. They say that, notwithstanding the absence of any categorical enactment, the general purpose of the original Act and its supplement [321 U.S. 489, 499] show that Congress intended to prohibit state and local regulatory authorities from permitting any increase in utility rates which was not shown to be necessary to prevent actual hardship. We are asked then, not only to revise the views expressed in Davies Warehouse Co. v. Bowles, supra, as to the scope of the Acts, but to infer from a general expression of congressional policy, the limitation of existing powers conferred by law on regulatory commissions throughout the nation, both state and federal, and the endowment of a different federal agency with new and superior rights and powers. 8 This we are unable to do.
The other contention of the petitioners stems from their view as to the effect of the Emergency Price Control Act and the Stabilization Act. They insisted below that they were denied a fair hearing because the Commission refused, in the current proceeding, to alter and enlarge the scope and the character of the inquiry. It will be remembered that, under the Commission's existing order, a termination of the sliding scale arrangement required ninety days' written notice. There was no application of any rate payer or any purpose of the Commission in the spring of 1942 to abrogate the arrangement. On the contrary, the Commission gave the required notice for the usual annual adjustment under the plan; and, after the necessary investigations by its agents, gave notice of hearing with respect to such adjustment. At that point, and at a time when no notice of increase of rates was required by any Act of Congress, the Administrator, upon his application was permitted to intervene in the proceeding.
In his petition, and at the hearings, he asserted and reiterated that he had the right to go into the propriety of the rate base, the operating expenses, including depreciation expenses, taxes, and rate of return, summarizing his [321 U.S. 489, 500] demand as 'a full and complete inquiry for the purpose of determining what are fair and reasonable rates. ...' The petitioners now insist that their desire was limited to examination of certain factors involved in the sliding scale. But the courts below did not so understand. The District Court, which sustained the appeal, said (48 F.Supp. 704): 'The Commission was requested to reconsider the basic principle of the sliding scale arrangement ....' The Court of Appeals said (137 F.2d 559) 'the Price Administrator departed from the field committed to his care and demanded that the Commission suspend the application of the sliding scale, and reexamine its basis in a complete investigation of all the elements that enter into the determination of a utility rate by a regulatory body.' These characterizations of the Administrator's contentions before the Commission are supported by the record.
If we consider the petitioners' present position we find that the Commission heard all evidence offered, and says it weighed it. The Administrator urged that the straight line method of depreciation embodied in the sinking find plan must be discarded in favor of a sinking fund method under the force of decisions of this court, a position unsupported by our cases, and evidence was offered to show the result which would ensue the substitution. Some testimony was adduced as to rate of return, and the Commission's report shows this was considered. In short, if the inquiry was limited to the issues comprehended in the Commission's order of investigation, the petitioners were afforded every opportunity for a full hearing. On the subject respecting which the petitioners were especially competent to enlighten the Commission,-namely the inflationary effect of a rate increase of 2.28% for one year, amounting, on the average, to three cents per month per customer, in the light of wage increases and increased commodity prices and overall conditions in the national [321 U.S. 489, 501] economy,-no evidence was tendered by petitioners, in response to repeated invitations by the Commission.
This case goes hand in hand with Davies Warehouse Co. v. Bowles, 321 U.S. 144 , 64 S.Ct. 474. That decision expanded the 'public utility' exemption in the Emergency Price Control Act to include a wide variety of enterprises. The present decision illustrates the value of that preferred treatment.
The Stabilization Act prohibits any 'utility' from making 'any general increase in its rates or charges which were in effect on September 15, 1942' without giving the President's agent the right to intervene in the proceedings. The present decision goes far towards making that provision ineffective. It allows the commission so to shape the issues of the rate proceeding as to exclude the data most relevant to a determination of whether any rate increase should be allowed. The power of a commission to shape the issues as it desires and to restrict the Director of Economic Stabilization to those issues is not a power which is apt to be neglected. The Director may of course proclaim against rate increases. But he does not need the right to intervene to prove that rate increases are inflationary. That is self-evident. The right to intervene, if it is not a right to introduce relevant data bearing on the true earnings and returns of the utility, is an empty right indeed.
I agree that Congress did not transfer rate-making powers from the commissions to the Director. I agree that Congress must have contemplated that some rate increases might take place or else it would have treated [321 U.S. 489, 502] the whole problem quite differently. But I find not the slightest indication that the Director was to be denied a full hearing. And I do not see how a full hearing could be accorded unless he was given the opportunity to establish, if he could, that the case under consideration showed no real hardship, that wartime demands were not causing the company to suffer, that its financial integrity and its ability to render service remained unimpaired, that its property was not being confiscated, that it was not being treated unfairly as compared with other companies.
We are told that this company has an inflated rate base of some $1, 000,000. We are told that its excessive charges for depreciation expense were over $225,000 a year as compared with the rate increase of about $200, 000 a year. We are told that a full hearing would have disclosed that the company was in fact earning more than 6 1/2%. I do not know what the evidence would show. But an offer of proof in a rate case could not be more relevant.
I believe, moreover, that when Congress halted general rate increases and gave the Director a right to intervene, it did not sanction rate increases regardless of need and regardless of inflationary effect. I think it meant to make utility commissions at least partial participants in the war against inflation and gave them a sector of the front to control. Though it did not remove the established standards for rate- making I do not think it intended utility commissions to proceed in disregard of the requirements of emergency price control and unmindful of the dangers of general rate increases. To the contrary, I think Congress intended that there should be as great an accommodation as possible between the old standards and the new wartime necessities. The failure of the commission to make that accommodation is best illustrated perhaps by its treatment of taxes. The commission allowed the company to deduct as operating expenses all income taxes up to and including 31%. That this amount [321 U.S. 489, 503] includes wartime taxes is evident from the fact that the highest corporate tax rate which prevailed from 1936 to 1939 was 19%. We all know that the extraordinary expenditures incurred for the defense of the nation started with the Revenue Act of 1940, 26 U.S.C.A.Int.Rev.Acts. It has been accepted practice to deduct income taxes as well as other taxes from operating expenses in determining rates for public utilities. Galveston Electric Co. v. Galveston, 258 U.S. 388, 399 , 42 S.ct. 351, 356. But this is war, not business-as-usual. When income taxes are passed on to consumers, the inflationary effect is obvious. And it is self- evident that the ability to pass present wartime income taxes on to others is a remarkable privilege indeed.
[ Footnote 1 ] 56 Stat. 23, 50 U.S.C.A.Appendix, 901 et seq.
[ Footnote 2 ] 56 Stat. 765, 50 U.S.C.A.Appendix, 961 et seq.
[ Footnote 3 ] Byrnes v. Flanagan, 48 F.Supp. 703.
[ Footnote 4 ] Washington Gas Light Co. v. Byrnes, 137 F.2d 547.
[ Footnote 5 ] c. 150, 37 Stat. 974, c. 8, 44 Stat. 920, c. 742, 49 Stat. 882, c. 40, 53 Stat. 569, D.C.Code, 1940 Ed. 43-101 et 43-1006.
[ Footnote 6 ] 56 Stat. 36, 50 U.S.C. 942(c), 50 U.S.C.A.Appendix, 942(c).
[ Footnote 7 ] Compare Davies Warehouse Co. v. Bowles, 321 U.S. 144 , 64 S.Ct. 474.
[ Footnote 8 ] Davies Warehouse Co. v. Bowles, supra; City of Yonkers v. United States, 320 U.S. 685 , 64 S.Ct. 327.

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Nos. 88-3216, 88-3358, 88-3409 and 88-3425.
Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., Rick L. Jancha, William Grimmer, Asst. U.S. Attys., South Bend, Ind., Shannan Hough, Law Student, for U.S.
Julie L. Friedman, Chicago, Ill., for Orville Baker.
Bruce H. Bornstein, Chicago, Ill., for Roy Wireman.
Suzanne Philbrick, Oak Lawn, Ill., for Skid R. Manns.
David Vandercoy, Valparaiso University, School of Law, Valparaiso, Ind., for Ellis Manns.
Before CUMMINGS, POSNER, and EASTERBROOK, Circuit Judges.
Ellis Manns and Wayne Stone managed a junior varsity marijuana network. They harvested marijuana growing wild in Iowa and Nebraska--"weed" in more senses than one. Called "ditch weed" in this record, it was gathered by the thousands of pounds. Ditch weed is so low in quality that it sold for only $30 to $40 per pound, and to make it worthwhile to deliver at any distance Manns and Stone had to stuff automobiles to the brim.
The indictment charged 27 persons, and the defendants were tried in five groups. Our group includes Ellis Manns, his brother Skid Ronnie Manns, Orville Baker, and Roy Wireman. They were tried with Scottie Manns (another brother), Larry Geesa, and Ronald Huff; Weddie Manns, Ellis's son, was included in the group but pleaded guilty before trial. The jury acquitted Geesa and Huff; Scottie Manns was convicted but has not appealed. The jury convicted Ellis Manns of conspiracy to possess marijuana with intent to distribute it, interstate travel in aid of racketeering, possession of more than 100 kilograms of marijuana with intent to distribute it, possession of more than 50 kilograms of marijuana (on a different occasion) with intent to distribute it, and being the kingpin of a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848. It acquitted Ellis of 30 other charges. The CCE conviction is responsible for the sentence of 18 years' imprisonment without possibility of parole. The jury convicted Skid Ronnie Manns of conspiracy to possess marijuana with intent to distribute it, five counts of possessing marijuana with intent to distribute (one under 50 kilograms, one over 50 but less than 100, and three over 100 kilograms), and five counts of interstate travel in aid of racketeering. He was acquitted on four counts. His sentence was 12 years. Wireman was found guilty of all three charges laid against him: conspiracy, possession of more than 50 kilograms of marijuana with intent to distribute, and of abetting interstate travel in aid of racketeering. He was sentenced to 14 years in prison. Baker was convicted of a single count of possessing more than 50 kilograms of marijuana with intent to distribute it and was acquitted on two charges. He drew 11 years. The similarity of the sentences stands in marked contrast to the substantially different gravity of the charges on which the four were convicted, but this case is not governed by the Sentencing Guidelines.
* Ellis Manns contests his conviction under the CCE statute. One of the elements of the CCE offense is that the defendant supervise five or more others in "a continuing series of violations" of the drug statutes. Courts commonly define "series" as three or more offenses; the jury instructions in this case did so. The jury convicted Ellis Manns of exactly three drug offenses: conspiracy to distribute marijuana and two possession offenses. It may of course have believed that he committed many other crimes; it is not limited to those charged in the indictment. United States v. Markowski, 772 F.2d 358, 361-62 (7th Cir.1985); United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988). The difficulty arises because of an instruction that a conspiracy counts as a predicate offense. So the jury may have convicted Ellis Manns as a kingpin on finding that he possessed marijuana twice and joined the conspiracy to distribute it. If a conspiracy is not a proper predicate offense, and if three is the minimum, the conviction may not stand.
Seven courts of appeals have held that a drug conspiracy may be counted toward the three. United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982); United States v. Young, 745 F.2d 733, 750-52 (2d Cir.1984); United States v. Fernandez, 822 F.2d 382, 384-85 (3d Cir.1987); United States v. Ricks, 802 F.2d 731, 737 (4th Cir.1986) (in banc); United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985); United States v. Hall, 843 F.2d 408, 410-11 (10th Cir.1988); United States v. Brantley, 733 F.2d 1429, 1436 n. 14 (11th Cir.1984). None forbids use of a drug conspiracy. Young, the leading case, relies on the language of Sec. 848(c)(2), which speaks of a "continuing series of violations of this subchapter or subchapter II of this chapter". Section 846, which defines the drug conspiracy offense, is part of "this subchapter". QED. Our court initially forbade use of the conspiracy as a predicate offense, United States v. Jefferson, 714 F.2d 689, 702 n. 27 (7th Cir.1983), but more recently deemed the question open, United States v. Bond, 847 F.2d 1233, 1238 n. 1 (7th Cir.1988); United States v. Moya-Gomez, 860 F.2d 706, 750 n. 38 (7th Cir.1988), in large part because the Supreme Court vacated Jefferson, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985). The time has come to resolve it.
The difficulty with using the "plain language" of Sec. 848(c)(2) as the foundation for the proposition that a drug conspiracy is a predicate offense comes from Sec. 848(c)(2)(A), which requires the prosecution to establish that the "series of violations" were "undertaken ... in concert with five or more other persons". An in-concert requirement means a conspiracy, and for this reason the Supreme Court held in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), that the conspiracy defined by Sec. 846 is a lesser included offense of the crime defined by Sec. 848. See also Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); United States v. Pace, 898 F.2d 1218, 1236-38 (7th Cir.1990). To treat a conspiracy as one of the "series of violations" to which Sec. 848(c)(2) refers is to say that it is a crime to commit a conspiracy in concert with other people, which is redundant. What sense would it make to allow the prosecution to count a conspiracy toward the three predicate offenses when the prosecutor must prove conspiracy anyway to satisfy Sec. 848(c)(2)(A)? Maybe a conspiracy other than the concert with five persons to which Sec. 848(c)(2)(A) refers would be a logical predicate, but how could such a conspiracy be part of the "continuing series" involving the five essential persons? A conspiracy is part of the essential "continuing series" only if it involves a concert among the kingpin and five subordinates--in which event it becomes a lesser included offense, and it is double counting to include it among the three predicates.
Incongruous results are not necessarily sufficient reason for rejecting a straightforward statute. So perhaps we should take the language at face value even though one conspiracy then counts toward both the "continuing series" and the "in-concert" requirements. Whether to do this depends in large measure on the meaning of the "series" requirement.
Treating a conspiracy--a crime that always exists when the prosecutor establishes the "concert" with five or more others--as a predicate whittles the "series" down to a minimum of two substantive crimes. Did Congress authorize a CCE conviction when the "series" may have no more than two substantive offenses? The legislative history does not help; it is silent on the meaning of "continuing series of violations". We know from the debates only that the statute is "a carefully crafted prohibition aimed at a special problem. [It] is designed to reach the 'top brass' in the drug rings, not the lieutenants and foot soldiers". Garrett, 471 U.S. at 781, 105 S.Ct. at 2413. Congress took a bead on the brass through the five-supervised-persons requirement in Sec. 848(c)(2)(A) and the substantial-income requirement of Sec. 848(c)(2)(B). The difference between two and three predicate offenses does not mark the line between top brass and foot soldiers.
Where, then, does the equation between "continuing series of violations" and three or more crimes come from? Other compound offenses, principally the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961-68, require two or more offenses. RICO depends on a "pattern" of racketeering, which means "at least two acts of racketeering activity", 18 U.S.C. Sec. 1961(5), characterized by "continuity plus relationship". H.J. Inc. v. Northwestern Bell Telephone Co., --- U.S. ----, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989). RICO itself specifies that it takes two to make a pattern; what says that it takes three to make a series?
Not Congress. The statute and its history are silent. Although many courts use three, the source of this requirement appears to be not the statute but the dictionary. The case cited most frequently for the equation between "series" and "three" is United States v. Valenzuela, 596 F.2d 1361, 1364-65 (9th Cir.1979), which neither discusses the subject nor cites any authority. A survey of the few opinions that cite other cases leads to United States v. Collier, 358 F.Supp. 1351 (E.D.Mich.1973), as the genesis. Collier does not rely on either the debates in Congress or the function of the series requirement. It relies on Webster's and Tarsia v. Nick's Laundry & Linen Supply Co., 239 Or. 562, 399 P.2d 28 (1965), which interprets the word "series" in an Oregon law. Tarsia obtained "three" from another dictionary.
We have nothing against dictionaries, but they are guides to how some persons used words in the past rather than solid evidence about how Congress used words on a particular occasion. Country Mutual Insurance Co. v. American Farm Bureau Federation, 876 F.2d 599, 600 (7th Cir.1989). The Oxford English Dictionary, the weightiest of them all, defines series as "[a] number of things of one kind (chiefly immaterial, as events, actions, conditions, periods of time), following one another in temporal succession, or in the order of discourse or reasoning." The editors give 16 other definitions (e.g., "In the Indogermanic languages, a set of vowels, or of diphthongs and vowels or sonants, which are mutually related by ablaut"), with scads of etymological examples. Not a one of them mentions "three". Comparing "series" with "pattern" also does not produce the difference between three and two. "Series" sounds like a line (which two points may define), while "pattern" is more like a plane, which needs at least three points for a definition--if Congress had geometry on its collective mind.
We can't fathom why two may make a RICO pattern but three are essential to a CCE series. Courts that allow the inevitable conspiracy to be used as a predicate offense effectively hold that two is the minimum for a series. Telling a jury that three is the minimum and that a conspiracy counts as one creates a potential for confusion without any possibility of benefit. Because the Sec. 846 conspiracy is a lesser included offense of the "concert" aspect of Sec. 848(c)(2)(A), we use Occam's Razor to slice away both the conspiracy and the third predicate offense. Judges should tell juries that a series may be established by two or more substantive drug offenses, and that a conspiracy does not count toward this minimum. The lesser included conspiracy does not count for reasons we have explained; an unrelated conspiracy does not count because it cannot be part of the "continuing" series with the five subordinates; thus no inchoate offense should be included in the "series" to which Sec. 848(c)(2) refers.
This brings us into harmony in result, although not in exposition, with the seven other circuits that set a minimum of three violations and allow the included conspiracy to serve as one. It also means that Ellis Manns' conviction for the CCE crime stands. The jury convicted him of two drug offenses and found the necessary concert of action, supervision, and substantial income ingredients. Although the instructions made the task needlessly complex by requiring a minimum of three but allowing the conspiracy to count, this did not work to Ellis's detriment.
Congress' decision to establish minimum penalties dependent on the quantity of marijuana, without regard to its quality, is the principal argument Skid Ronnie Manns presses on appeal. Section 841(b)(1)(B)(vii), for example, sets a five-year minimum when the crime involves "100 kilograms or more of a mixture containing a detectable amount of marijuana, or 100 or more marijuana plants regardless of weight". The five years increase to ten if the defendant has a prior conviction. Skid Manns emphasizes that although the ditch weed he gathered and sold had a "detectable amount of marijuana", it did not have much more than that. (It had enough active ingredient to justify calling it "marijuana", however.) He contends that it is irrational to impose a minimum five or ten year term on someone who sells 100 kilograms of such innocuous stuff, while someone who distributes 99 kilograms of potent marijuana from Hawaii faces no minimum sentence under Sec. 841(b)(1)(C).
So far as we can tell, the mandatory minimums do not affect the district judge's sentences. Skid Manns, convicted of 11 felonies, could have been sentenced to more than 100 years in prison, without parole, even if the minimums were not there; he received only 12. It is accordingly unnecessary to decide whether Congress must take potency into account when setting statutory minima.
Orville Baker and Roy Wireman contest the sufficiency of the evidence against them.
A. The evidence concerning Baker, taken with reasonable inferences in the light most favorable to the verdict, shows that in January 1987 Stone and Ellis Manns delivered 200 pounds of "shake"--marijuana seeds plus broken stems and leaves--to a customer in Florida. The customer did not like the quality of this mixture and accepted only 75 pounds. Stone then called Baker, an acquaintance of six years, and asked whether he could do anything with 125 pounds of shake. Baker replied that he would try. Stone, Skid Manns, and a third person delivered the shake to Baker's house in Kentucky. Stone quoted a price of $50 per pound, but Baker paid only $1,000 for the load. When arrested, Baker still had the shake. On this evidence, the jury convicted him of possessing more than 50 kilograms of marijuana with intent to distribute it.
Evidence allows the jury to conclude both that the substance was marijuana (although barely) and that it weighed more than 50 kilograms (although barely). Baker contends that the shake was worthless and could not have been distributed. If so, he may be convicted of no more than simple possession. The difficulty with the claim that the shake was "worthless" is that Baker paid at least $1,000 for it (and may have promised to pay more if he could resell). Baker paid $8 per pound in cash. That's more than the price of sugar or flour, which no one would call worthless or unsalable. Insistence that shake is worthless for smoking tends to show, moreover, that it must have been held for distribution. Shake may be used to dilute more potent marijuana. Baker could not have smoked 125 pounds of shake during a lifetime. Only the supposition that he would redistribute the stuff makes sense of the deal. The evidence is sufficient--and the large quantity in relation to the potential for personal consumption shows why none of the defendants was entitled to an instruction on the lesser included offense of simple possession.
B. Wireman was convicted of possession with intent to distribute, of abetting interstate travel in aid of racketeering, and of conspiracy. All three convictions grow out of a single load of 200 pounds delivered to Wireman in Florida. (Hence the conviction for abetting the interstate travel of the couriers who ferried the drug to him by car from Indiana.) Wireman promised to pay $40 per pound. He did not pay on delivery. Later he told Stone that he had lost the marijuana and would replace it by picking and delivering 200 pounds. (How do you "lose" 200 pounds of marijuana?) Nothing in the record suggests that he kept that promise.
The conviction under the Travel Act, 18 U.S.C. Sec. 1952(a)(3), is beyond substantial challenge. Wireman arranged for a shipment of marijuana from Indiana to Florida. The conviction of possession with intent to distribute is only slightly more problematic. The substantial quantity of the load and the poor quality of ditch weed support an inference that Wireman planned to distribute the drug as a filler for other marijuana rather than to consume it all himself. But the conviction of conspiracy is exceedingly difficult to sustain.
Wireman bought one load of marijuana from a conspiracy that, according to the indictment, lasted from 1984 to 1987. Wireman lived in Florida; the principal operators lived in Indiana and gathered their product elsewhere in the midwest. Nothing in the record suggests that Wireman had more than this one transaction with the conspiracy. A buyer does not automatically become a member of the conspiracy. United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987); United States v. Marks, 816 F.2d 1207, 1212 (7th Cir.1987). The prosecution must establish by substantial evidence, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), that the defendant knew the existence and scope of the conspiracy and sought to promote its success. United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985). Even a large purchase does not demonstrate these things, United States v. Sperling, 506 F.2d 1323, 1329 n. 5, 1342 (2d Cir.1974), any more than a purchase of 100 tons of steel to build a skyscraper shows that the buyer has "joined" the corporate enterprise of the manufacturer. United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.1978); United States v. Koenig, 856 F.2d 843, 854 (7th Cir.1988).
Two features potentially distinguish Wireman's activities from those of a one-time purchaser. First, Wireman bought on credit, which may support an inference that he became a co-venturer by a profit-sharing arrangement. Second, Wireman promised to pay for his load by supplying more marijuana to the conspirators, implying a longer-term, reciprocal relationship. Features of this kind sometimes supply the essential substantial evidence of membership ("substantial", not "slight", see United States v. Durrive, 902 F.2d 1221, 1225-1230 (7th Cir.1990)). See United States v. Douglas, 874 F.2d 1145, 1152 (7th Cir.1989); United States v. Hyman, 741 F.2d 906, 914 (7th Cir.1984); United States v. Garcia-Rosa, 876 F.2d 209, 223 (1st Cir.1989). But cases that allow these inferences also involve repeat purchases or some other enduring arrangement that implies knowledge of the scope of the conspiracy. Knowledge is missing here. Conspiracy is an agreement, and it is hard to see the basis for inferring that Wireman agreed to something the scope of which he could not have appreciated.
Credit and an offer to pay in kind are weaker here than in many other cases. The record does not support the conclusion that Stone and Wireman agreed to a credit sale and profit-sharing arrangement so much as it implies that Wireman stiffed the couriers and unilaterally changed the deal from cash to credit. Although he later promised restitution in kind, this too was unilateral. Stone wanted money, not marijuana. Stone and associates also wanted to make a profit. Delivery of 200 pounds of marijuana at an uncertain future time would leave the conspiracy at risk in the interim, and without a profit even if Wireman should come through. Even taking the evidence in the light most favorable to the government, what emerges is that Wireman was trying to rip off the conspirators, not to join them. It is hardly surprising that Stone made no further deliveries. Substantial evidence does not support the conclusion that Wireman joined the Stone-Manns conspiracy. He was a buyer, no more.
Defendants raise a passel of other arguments, none of which requires discussion. Wireman's conspiracy conviction is reversed. His remaining sentences are vacated, and his case is remanded for resentencing. The convictions of Ellis Manns, Skid Ronnie Manns, and Orville Baker are affirmed.

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INDICTMENT found and returned in the Superior Court Department on July 11, 1978.
The case was tried before Tamburello, J.
Paul P. Caradonna for the defendant.
Kevin C. McLean, Assistant District Attorney, for the Commonwealth.
QUIRICO, J. In the early morning of June 10, 1978, during the violent aftermath of a high school graduation party, John P. Grogan died of a knife wound to his heart. The defendant, Richard Repoza, was apprehended at the scene, was indicted by a grand jury for murder in the first degree, and, on November 2, 1978, following a nine-day jury trial, was found guilty of Grogan's murder in the second degree. On this appeal pursuant to G. L. c. 278, Sections 33A-33G, the defendant assigns a number of errors allegedly committed by the trial judge during the course of the trial, and in addition seeks to invoke the power of extraordinary review given this court by the provisions of G. L. c. 278, Section 33E. [Note 1] Neither our review of the defendant's specific assignments of error nor our independent review of the record reveals any error requiring reversal of the defendant's conviction or the entry of a verdict of a lesser degree of guilt.
events preceding the killing is relatively clear. On the evening of June 9, 1978, Carlos Vargas hosted a party at his home at 8 Hammond Street, Somerville, to celebrate his graduation from Somerville Technical Trade High School. In addition to his school friends, Vargas invited to the party his steady girl friend, a resident of East Cambridge, and suggested that she invite others. Most of Vargas' guests arrived at about 8 P.M. Somewhat later, a group of about eight Cambridge youths, all of whom learned of the party through Vargas' girl friend, arrived at the Vargas house. About 8:30 P.M., the defendant and a friend, John Cavallaro, both of whom were from Cambridge and friendly with the other Cambridge guests, arrived. In all the party was attended by about fifteen boys from Somerville, six from Cambridge, and a total of sixteen to twenty girls in approximately equal numbers from each city.
The party continued without incident until about midnight. The defendant was "hanging around," dancing, talking, and perhaps watching television, and he caused no trouble. Carlos Vargas had not asked him or any of the Cambridge group to leave.
About midnight, Robert Devereaux of Somerville and Joseph Long of Cambridge became involved in a scuffle in the Vargas dining room. Devereaux thought that Long was bothering some of the girls at the party and tried to stop him. Zenalia Vargas, Carlos' mother, separated the two, and told the crowd that the party was over; she went to the cellar and removed an electrical fuse, thus stopping the music and ending the party. The Vargas house emptied almost immediately into Hammond Street. Carlos Vargas told the group of move away from his house and everyone moved northerly along Hammond Street and turned easterly onto Concord Avenue. Near the intersection of Concord Avenue and Hammond Street, Long and Devereaux resumed their fight, now surrounded by a crowd.
defendant was at the scene of this fight with the knife later identified as the murder weapon. The first of these witnesses was Carlos Vargas. As he watched the fight, Repoza approached him with a knife in his hand, and, standing at about arm's length, said, "No, this is your party," or, "This is your party." As Vargas backed away, he was seized from behind by Francis Kelley, the first police officer at the scene, and the two began to grapple.
By the time Vargas had been subdued, Grogan had been stabbed. According to Officer Kelley, there was general fighting when he arrived on Concord Avenue. At some point after he arrived, the fight between Long and Devereaux broke up. Long retreated to the stairs of a three-story house diagonally across Concord Avenue from Hammond Street. Also on or near the stairs were the defendant, Robert Devereaux, Richard Trevisone, James Poplawski, and two girls from Cambridge. Both Devereaux and Long testified that while they were on the stairs, Devereaux kicked Long in the face; Long was knocked down from the stairs, and disappeared into the crowd, from which he emerged semi-conscious some moments later.
abreast of him, struck him once in the left side of the chest with the knife. Repoza then continued his flight. Trevisone stopped momentarily, then resumed his pursuit of Repoza. Near the corner of Beacon Street and Concord Avenue, Trevisone overtook Repoza, and delivered three kicks, one to Repoza's stomach and two to his groin. Trevisone was then jumped from behind and lost the defendant. Seeing a police car turn onto Concord Avenue in front of him, Trevisone ran back to the Vargas house, but after a minute he returned to where Grogan was lying. Trevisone approached one of the police officers present and said, "You have to get him," or, "You can get him." Then, accompanied by an officer, Trevisone walked toward Hammond Street. The defendant was at this time handcuffed and sitting in the back seat of a police cruiser; on seeing him Trevisone immediately identified him as Grogan's assailant.
Trevisone was the only witness who testified that he saw the defendant stab Grogan. Significant details of his testimony, however, were corroborated by other witnesses. Poplawski saw Repoza with a knife on the porch of the house on Concord Avenue, and participated in the ensuing chase. He saw Grogan cross onto the sidewalk of Concord Avenue. Poplawski caught Long, knocked him down and kicked him. Looking up, he saw Trevisone, Repoza, and Grogan close together on Concord Avenue; he then saw Repoza "punch" Grogan in the upper chest, and watched Grogan stumble toward him bleeding. Poplawski chased Repoza around the corner of Beacon Street, and saw him throw something to his right near the corner. Poplawski caught Repoza on Beacon Street, where both were "grabbed" by Officer Robert F. Hodnett. Thinking that Repoza might escape, Poplawski said to Hodnett, "Grab him. He is the one who stabbed him." Officer Hodnett escorted both youths back to Concord Avenue and placed them in patrol cars; Poplawski subsequently made a second identification of Repoza.
Repoza did not testify in his own behalf. Two girls from the Cambridge group testified that they were with Repoza immediately after the Long-Devereaux fight, and that they saw no knife. There was also testimony by these two Cambridge girls that, following his fight with Long, Devereaux threatened them with a knife. A number of other defense witnesses testified to details of the brawl, which, if believed, might have cast doubt on the account given by the Commonwealth's witnesses. None, however, significantly undermined the central eye-witness testimony given by Trevisone and Poplawski.
of certain testimony from Detective Oteri as to Trevisone's on-the-scene identification of the defendant. We discuss these points seriatim; in none do we find any error.
a. Scope of cross-examination. Defense counsel by cross-examination sought to develop certain inconsistencies between Trevisone's description at the trial of the stabbing and a physical demonstration of the incident given by Trevisone at the earlier probable cause hearing. The Commonwealth objected on the ground that the transcript of the probable cause hearing did not adequately reflect the details of the earlier demonstration. After repeated attempts at clarification, including two bench conferences, the court took a twenty-four minute recess. Immediately following the recess, defense counsel elicited from Trevisone the information that, during the recess, he had met with the prosecutor in the prosecutor's office, that they had discussed the case, and that the prosecutor had refreshed his memory. Trevisone further testified that he had not been told what to say. At that point, the judge excluded further inquiry into the substance of the conversation.
refreshed and that he had not been instructed as to how to testify. Significantly, defense counsel was ultimately successful in his attempt to show that Trevisone was unsure as to how the defendant was holding the knife when the fatal blow was struck. At most, this was an instance in which "the judge's ruling `did not totally exclude cross-examination . . . [about the witness's conversation with the prosecutor], but only limited additional questions on that subject once it had already been raised and explored to some extent before the jury.' " Commonwealth v. Smallwood, 379 Mass. 878, 889 (1980), quoting from Commonwealth v. Watson, 377 Mass. 814, 837 (1979). It is clear that such a ruling is within the province of the trial judge absent a particularized showing of prejudice wholly lacking here. Commonwealth v. Hall, supra. See Commonwealth v. Valliere, 366 Mass. 479, 492 (1974) (no error in excluding question as to why police detective had interfered in discussion between defense counsel and prosecution witness in corridor outside court room during a break in trial).
having been found during his search of Concord Avenue shortly after the stabbing. On the sixth day of trial, Detective Oteri testified without objection as to the use of sap gloves. On the seventh day of trial, the defendant called Belski to the witness stand, and on cross-examination the prosecutor elicited his denial that he had been armed with the sap glove on the night of the crime.
The defendant now claims that admission of the sap glove was prejudicial in that it may have given rise to an inference that persons associated with him were armed and predisposed to cause trouble when they arrived at Vargas' party. That it appears in retrospect that an inference harmful to the defendant may have been drawn from this evidence is not, without more, a ground for appeal. In a recent and similar case involving a homicide which occurred in the course of a violent clash between two opposing groups, this court had occasion to emphasize the breadth of a trial judge's discretion in admitting penumbral evidence of events preceding the homicide. Commonwealth v. Alicea, 376 Mass. 506, 522 (1978). Articles discovered at or near the scene of a crime have consistently been held admissible by this court where they tend to shed light on the setting in which the crime occurred. Commonwealth v. Murphy, 356 Mass. 604, 610 (1970). Commonwealth v. Wallace, 326 Mass. 393, 395-396 (1950). Commonwealth v. Giacomazza, 311 Mass. 456, 470 (1942). Commonwealth v. Russ, 232 Mass. 58, 79 (1919). Commonwealth v. Retkovitz, 222 Mass. 245, 249 (1915).
In this case, both the Commonwealth and the defendant presented detailed evidence of the circumstances preceding John Grogan's death. Defense counsel claimed, and was allowed, broad latitude in presenting evidence "incidental to the total concept of what happened that night." This court will not disturb a trial judge's discretionary ruling where, as here, the defendant seems to have been "as much interested in developing [the disputed material] as the prosecution." Commonwealth v. Alicea, supra. Cf. Commonwealth v.
c. Photographic evidence. The Commonwealth introduced as exhibits fifteen photographs, twelve of them in color, all taken on the day of Grogan's death. A number of these depict unmistakable bloodstains on the sidewalk and the travelled surface of Concord Avenue at the location where the victim fell after being stabbed. The defendant objects generally to their admission, claiming that they were highly inflammatory and possessed only cumulative evidentiary value, as the jury had taken an extensive view of Concord Avenue early in the trial.
d. Admissibility of testimony as to extrajudicial identification. Philip Oteri, a detective for the Somerville police department, was allowed at trial to testify that shortly after Grogan was stabbed, Trevisone was escorted to the police cruiser in which Repoza was sitting, at which point Trevisone stated, "That's him. That's the one who stabbed John." The defendant, in his final evidentiary point, argues that this testimony was inadmissible hearsay.
police cruiser on the night of the crime, he had stated to Officers Gaughan and Oteri, "That's him." Oteri's testimony was thus admissible under the rule allowing testimony as to prior extrajudicial identifications to be introduced to corroborate an in-court identification. Commonwealth v. Sheeran, 370 Mass. 82, 87 (1976). Commonwealth v. Swenson, 368 Mass. 268, 273 (1975). Commonwealth v. Leaster, 362 Mass. 407, 411-412 (1972). See Commonwealth v. Redmond, 357 Mass. 333, 341 (1970). In these circumstances, the testimony is admitted "not for the truth of the matter asserted, but to corroborate the fact of prior identification." Commonwealth v. Sheeran, supra. [Note 5] Although a limiting instruction as to the effect of such testimony is preferable, Commonwealth v. Leaster, supra at 412, such an instruction is not mandatory where, as here, the jury would naturally view the testimony as merely corroborative. [Note 6] Commonwealth v. Denault, 362 Mass. 564, 567 (1972).
2. Instructions to the jury. Two points arising from the trial remain for discussion. Both have to do with the judge's instructions to the jury. The first is raised by the defendant in his brief; the second we discuss in accordance with our obligation under G. L. c. 278, Section 33E, to review the record in this case to determine whether justice may require a new trial or the entry of a verdict of a lesser degree of guilt.
a. Instructions on leading questions. The defendant asserts that the judge erred in his instructions to the jury with regard to the evidentiary effect of a negative answer to a leading question. The instruction to which the defendant particularly objects occurred on the second day of trial. During his cross-examination of Trevisone, defense counsel asked, "Do you recall Richard Repoza jumping into the [Long-Devereaux] fight, trying to break it up?" to which Trevisone answered, "No." The judge then instructed the jury as follows: "Now, I am going to say to the jury, when the answer is `no' to a question, you are not to take the body of the question as evidence, or to wonder or speculate if it was evidence. If the evidence [sic] is `No', you are to disregard entirely the contents of the question, unless and until it is proved by somebody else at a later time. If somebody asked me, `Judge, were you in New York last night?' and I said, `No,' you are not to wonder if I was in New York. It just is not any evidence at all."
Defense counsel than thanked the judge and continued his cross-examination. On two other occasions during the trial, the judge again instructed the jury that the contents of a leading question are not evidence and must be disregarded unless and until they are properly proved. No objection was made nor exception saved by defense counsel when any of these rulings was made. See Mass. R. Crim. P. 22, 378 Mass. 892 (1979).
On this appeal, it is argued that the final two sentences of the quoted instruction were misleading in that the example cited by the judge would at least produce evidence that the person answering was not in New York on the night in question. We disagree. Read in their totality, the judge's instructions on this point were such that no reasonable juror could have been misled by them. Cf. Commonwealth v. Medina, 380 Mass. 565, 577 (1980). Since this issue was not raised at trial, either by objection or by a request for clarifying instructions, our reviewing function is limited indeed. See Commonwealth v. Walden, 380 Mass. 724, 731 (1980). In this instance, however, no review, whether limited or plenary, would lead to a different conclusion.
b. Instruction on malice. While we find no error in any of the points argued by the defendant, the provisions of G. L. c. 278, Section 33E, bring the "whole case" here for consideration of both law and evidence. We therefore discuss one further point.
In his charge to the jury on the element of malice required to support a murder conviction, the judge spoke twice of a "presumption" of malice arising from the intentional use of a deadly weapon in a homicide. [Note 7] This was incorrect.
inherent in the use of language which might suggest to a jury that any element of a crime may be presumed, or that the burden of rebutting the Commonwealth's case ever shifts to or rests on the defendant. Commonwealth v. Collins, 374 Mass. 596, 600 n.2 (1978). Commonwealth v. Rodriguez, 370 Mass. 684 (1976). Moreover, we had announced our intention to scrutinize carefully cases decided after Mullaney v. Wilbur, 421 U.S. 684 (1975), for the constitutional adequacy of the instructions given to the jury regarding the Commonwealth's burden of proof. Commonwealth v. Collins, supra at 599.
Several recent cases further articulate the nature of the scrutiny alluded to in Collins. In Commonwealth v. Callahan, supra, we reversed a conviction of murder in the first degree based on our conclusion that, in that case, the judge's instructions as to a "presumption" of malice arising from proof of the defendant's intentional use of a deadly weapon had created the substantial risk of a miscarriage of justice. Id. at 822. The jury charge in that case was defective in two respects. First, after instructing the jury that the legal effect of a presumption is to require that a certain conclusion be drawn from facts proved, the judge used language of presumption six times in explaining to the jury the effect of the Commonwealth's proof of the use of a deadly weapon. We held that the charge to the jury in that case, taken as a whole, clearly stated that unless the defendant had introduced some evidence negating malice, the jury were required to find malice from proof that the defendant intentionally used a deadly weapon to cause the victim's death. Id. at 824-825. The language of that charge, we held, clearly reflected an unconstitutional shifting of the burden of proof to the defendant to disprove malice. Id. at 824-825.
of "must" in this context is reversible error when it could reasonably be interpreted, in light of the entire charge, to relieve the Commonwealth of any part of its burden of proof. Id. at 825.
The decision in Callahan exemplifies our rejection of an approach either narrow or mechanistic in our consideration of the issue raised in the present case. Cf. Commonwealth v. Collins, supra. In each case, the question " `whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction' . . . and . . . error is avoided if the charge, read as a whole, makes clear the Commonwealth's burden." Commonwealth v. Medina, supra at 578, quoting from Sandstrom v. Montana, 442 U.S. 510, 514 (1979). Here, as in Medina, the judge's erroneous equating of malice implied or inferred to malice presumed was ultimately vitiated by his repeated and careful instructions reinforcing the principle that the burden of proof on every essential element of the crime invariably remains with the Commonwealth. The judge began his instructions by explaining the presumption of innocence, stating clearly that the defendant "need not present evidence of his innocence, but may rest inactive and secure until the Commonwealth goes forward with evidence and proves him guilty." The charge went on at some length to state that every essential element of the crime must be proved by the Commonwealth beyond a reasonable doubt. The judge explicitly stated that "[a]ll the presumptions of law independent of evidence are in favor of innocence." The presentation of the nature and effect of permissible inferences was thoughtful and detailed. Finally, we think that the instructions on the nature of malice aforethought, which came after the judge's erroneous use of the word "presumption," were sufficient to dispel any misconception that might have been created by the error. These instructions left no doubt that the jury could return a verdict of murder only if they were satisfied of the existence of malice beyond a reasonable doubt.
the weight of the evidence and consonant with justice. As to the first point, the Commonwealth clearly produced evidence sufficient to support a finding of murder in the second degree. Four witnesses testified that Repoza was at the scene of the killing armed with a knife. Zenalia Vargas, Carlos Vargas' mother, testified that the knife found near the scene of the crime, and identified as the one in the defendant's possession, did not come from her house. The clear inference from her testimony is that Repoza arrived at the party armed. Carlos Vargas testified that the defendant approached him with the knife, then said, "No, this is your party"; from this exchange, the jury could have inferred that the defendant was willing to use the knife offensively, and not merely defensively, once the trouble started. Both Trevisone and Poplawski gave eyewitness accounts of the stabbing. Poplawski's testimony on cross-examination was particularly damaging. He stated that after the incident on the stairs, Repoza fled down the travelled surface of Concord Avenue while Grogan ran on the sidewalk. From this testimony, the jury could have concluded that John Grogan did not stand in the defendant's natural route of escape, but that Repoza rather deviated from the shortest course to safety to strike the fatal blow.
Having considered this case as to the law and the evidence as we are required to do under G. L. c. 278, Section 33E, we decline to grant the defendant a new trial or to direct the entry of a verdict of a lesser degree of guilt than that found by the jury.
[Note 1] Prior to July 1, 1979, G. L. c. 278, Section 33E, provided for a full review by this court of any case tried on an indictment for murder in the first degree, and resulting in a conviction for murder in the second degree. By St. 1979, c. 346, Section 2, the statute was amended to provide for special review only of cases in which the indictment leads to a conviction for murder in the first degree. This case, however, falls within the category of cases in which the offense resulting in the conviction was committed prior to July 1, 1979, and which thus remained eligible for our review under the rule announced in Commonwealth v. Davis, 380 Mass. 1, 12-17 (1980).
[Note 2] The Commonwealth also placed John Cavallaro on the stand. Cavallaro was from Cambridge and had arrived at the party with the defendant. He was the only member of the Cambridge group to testify for the Commonwealth. On direct examination, Cavallaro's testimony largely corroborated the account of events given by Trevisone and Poplawski. He was, however, a sufficiently difficult witness that the judge allowed the Commonwealth to use leading questions during direct examination. Under cross-examination, Cavallaro stated that he saw the victim emerge from a "pile" of people on the ground, then stagger and fall. Because Cavallaro's testimony was not essential to the Commonwealth's case, and because there was ample reason for the jury to disregard it, we do not dwell on it here.
[Note 3] The defendant further argues that the prosecutor in closing argument improperly intimated that the sap glove belonged to the defendant. In closing argument, the prosecutor referred to the glove and said "Where did this come from? Young Belski never saw [it] before. But who said he threw it away? Who saw him throw it away? Who does this glove fit? I suggest to you, try it on when you get out into the jury room. They were ready, and [the defendant] was ready to use that knife that night going up the street." Although this passage is not without its ambiguities, read in the context of the conflicting testimony as to possession of the glove, it appears to be directed to the fact that other members of the Cambridge group were armed at the party. Carlos Vargas, of course, testified to this fact at trial. Particularly where the defendant failed to object to the challenged statement during the closing argument, and requested no limiting instruction as to inferences to be drawn from the discovery of the sap glove at the scene of the killing, the quoted passage presents no basis for reversal. Commonwealth v. Earltop, 372 Mass. 199, 203-204 (1977).
[Note 4] In closing argument, defense counsel drew the jury's attention to the nature of the victim's wound -- "through the ventricle, the pumping chamber of the heart, spurts it right out" -- in an attempt to demonstrate that the wound was inconsistent with the Commonwealth's account of the circumstances surrounding the stabbing. Without questioning the effectiveness of this argument, we note that it underscores the futility of trying to keep from the jury in a case such as this the gruesome nature of the victim's wounds.
[Note 5] We note that the use in evidence of an extrajudicial identification is not limited to corroboration. Such an identification may also be offered (a) for the purpose of impeachment and (b) as substantive evidence of the identification, where the witness is available in court to testify, but is either unable or unwilling to make an in-court identification. See Commonwealth v. Vitello, 376 Mass. 426, 459-461 (1978), and authorities cited.
[Note 6] The corroborative nature of Detective Oteri's testimony must have been particularly obvious to the jury in this case. Two prosecution witnesses, Trevisone and Poplawski, identified the defendant as Grogan's assailant. On the fourth day of trial, two days prior to Oteri's appearance, Officer Gaughan testified without objection to Trevisone's on-the-scene identification of the defendant. His testimony was substantially identical to that challenged here. In addition, a third police officer, Hodnett, testified to an extrajudicial identification of the defendant made by Poplawski, again without defense objection and prior to Oteri's appearance.
[Note 7] In his instructions to the jury at the close of trial, the judge explained the concept of malice aforethought in the following terms: "So what is malice as used in the words: malice aforethought? Well, it is of two kinds. It is active malice, which we all understand by the simple use of the words in this meaning: an active malice is ill will towards someone. It is the active hatred of someone. It is a grudge or an ill feeling toward someone, harboring an attempt to hurt someone, or act of bad blood or feeling, generating motives of revenge or punishment. That is active malice. But you are not looking for active malice alone. You are looking for an unlawful, unjustified act with no extenuating circumstances, and the wrongfulness of the act itself is sufficient to sustain a finding of malice so far as the law is concerned.
"That is perhaps malice implied in law as distinct from malice that you find from the conduct of people. And when a killing is caused by the intentional use of a deadly weapon, there arises the presumption of malice aforethought. Because, as that term has long been understood and applied in this Commonwealth, the use of a deadly weapon, itself capable of causing harm and death, if an unjustified act with no extenuation or excuse, is sufficient itself to supply the element of malice you are looking for in determining whether a crime is murder or less than murder.
THE PROSECUTOR: "The only thing I was interested in was that you tell the jury that malice may be inferred when the killing is the result of an intentional use of deadly force."
THE JUDGE: "I covered that, too. When the killing is caused by the intentional use of a deadly weapon there arises a presumption of malice aforethought."
The prosecutor twice again sought to alert the judge to the error before acquiescing in the instruction as given. We note also that included in the defendant's requested instructions on the elements of murder in the second degree was the following: "Every sane person is presumed to intend the natural and probable consequences of his acts. However, a specific intent is required as an element of the crime charged, so no inference of such intent may be drawn from the mere proof of the act." The requested instruction would be needlessly confusing to a jury. Our recent decisions in this area offer sufficient guidance to allow the formulation of clear and precise instructions on the inference which may permissibly be drawn from the intentional use of a deadly weapon in cases of homicide.

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A co-conspirator may be convicted for substantive offenses committed by anotherco-conspirator, provided such offenses were committed while the agreement continued to exist and were in furtherance of the agreement. MCM, pt. IV, ¶ 5c(5); Pinkerton v. United States , 328 U.S. 640 (1946); United States v. Browning , 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta , 14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s drug distribution); United States v. Figueroa , 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by co-conspirator was provident).
United States v. Billings , 58 M.J. 861 (A.C.C.A. 2003) (accused’s silent consent asapproval authority for all gang activity supported conviction for robbery even though other gang members carried out the crime) aff’d, 61 M.J. 163 (2005).
United States v. Finlayson , 58 M.J. 824 (A.C.C.A. 2003) (dicta) (accused could becriminally liable for the actions of other conspirators before he joined the conspiracy).
Article 77 is broad enough to encompass vicarious liability of co-conspirators. UnitedStates v. Browning , 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or co-conspirator, even though conspiracy was not on the charge sheet).
A co-conspirator’s statement may be admissible under MRE 801(d)(2)(E) even though conspiracy is not a charged offense. United States v. Knudson , 14 M.J. 13 (C.M.A. 1982).

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[184 U.S. 290, 291] This was a bill filed in the United States circuit court for the northern district of Georgia, January 21, 1891, by J. J. Robinson as trustee, who averred that he was 'a citizen of and resided in the state of Alabama,' 'against the Alabama & Georgia Manufacturing Company, a corporation created under and by virtue of the laws of the state of Georgia, and a resident and citizen of said northern district of Georgia; and against the Huguley Manufacturing Company, a corporation created under the laws of said state of Georgia, and a resident and citizen of said state of Georgia and of the northern district of said state; and against W. T. Huguley, whom your orator avers to be a citizen of said state of Georgia and residing within the said northern district of Georgia.
The bill averred that on January 2, 1884, 'the said Alabama & Georgia Manufacturing Company executed and delivered to said W. T. Huguley, W. C. Yancey, and your orator, as trustees, a certain deed of trust, conveying to said persons named, and to orator, all the property of the said Alabama & Georgia Manufacturing Company upon the terms and upon the trusts therein stated for the purpose of securing certain negotiable bonds of said company in the principal sum of $65,000, and interest thereon, which deed of trust was accepted by said trustees and duly recorded.' A copy of the trust deed was attached and conveyed certain real estate in the state of Georgia and certain real estate in the state of Alabama as therein described.
It was further averred that the bonds were duly issued by [184 U.S. 290, 292] the Alabama & Georgia Manufacturing Company and sold or otherwise disposed of; that the company was insolvent and had ceased to do business; that under and by virtue of a decree in chancery of the superior court of Troup county, Georgia, all the property of the manufacturing company covered by the deed of trust had been sold and purchased by certain persons who afterwards conveyed the same to the Huguley Manufacturing Company, and that the last-named corporation was now in the possession of the same; that the sale was made subject in all respects to the rights and lien of the trust deed for the holders of the first-mortgage bonds; that W. T. Huguley, defendant herein, and named as one of the trustees for said bondholders, was interested in the purchase of said property, and in the property and assets of the Huguley Manufacturing Company, and adversely to complainant as trustee for said bondholders, and that the other trustee, W. C. Yancey, had departed this life since the execution and delivery of the deed of trust.
The bill then set up default on the part of the Alabama & Georgia Manufacturing Company in the payment of interest; the election of a majority of the bondholders to treat the whole of the principal sum named in the bonds as due; request of complainant to begin proceedings to secure the property pledged for the payment of the indebtedness, and which he deemed to 'the best interest of the bondholders;' and prayed for an accounting, foreclosure, and sale of the property.
Defendants acknowledged service, and the two defendant companies filed a demurrer to the bill, which was subsequently overruled on hearing, Mr. Justice Lamar presiding. 48 Fed. 12. Answer was filed by these defendants and the bill taken as confessed as to W. P. Huguley. The cause subsequently went to final decree adjudging recovery on all the bonds and of foreclosure and sale, which decree was afterwards reversed by the circuit court of appeals for the fifth circuit, 6 C. C. A. 79, 13 U. S. App. 359, 56 Fed. 690, because all the bonds were not due, acceptance of interest on some of them having waived default, and the cause remanded. Pending the appeal the property was purchased for the bondholders under the decree and $10,000 paid [184 U.S. 290, 293] into court by the purchasers as required by the decree, who organized a company under the name of the Galeton Cotton Mills, which corporation was placed in possession of the property and remained in such possession for a period of three years and six months. The decree of foreclosure having been vacated, the circuit court granted a petition on behalf of the Huguley Manufacturing Company to restore it to the possession of the property, on condition, however, that it pay into court the $10,000 which had been paid in by the purchasers. The Huguley Manufacturing Company did not comply with this condition, and a second decree of foreclosure was entered adjudging that, out of a total of one hundred and thirty bonds, ninety were due when the bill was filed, and forty were not then due because of waiver of default, though now due; that the property was indivisible and could not be sold to satisfy part of the bonds only; and that the proceeds of sale should be proportionately distributed on all the bonds. Thereupon an appeal was taken to the circuit court of appeals, and the decree of the circuit court was affirmed. 19 C. C. A. 152, 30 U. S. App. 683, 72 Fed. 708.
A second foreclosure sale took place, and the property was again purchased for the bondholders, and this sale was confirmed June 25, 1896. Defendants filed a petition for an accounting of the rents and profits from the time of the first sale, and an amendment thereto, and a reference was made to a special master, who on November 2, 1897, filed his report in which he found the Galeton Cotton Mills liable for rents and profits in the sum of $39,715.31. Exceptions were filed to the master's report by both parties. February 23, 1898, the exceptions of appellants were overruled and the exceptions of appellees sustained to the extent of reducing the master's finding to $35,857.54, and a decree to that effect was entered February 28, 1898. Thereafter the circuit court entered a decree that the rents and profits should be used in reduction of the mortgage debt, and later a decree fixing the amount of the mortgage debt and costs and directing the manner of applying thereto the rents and profits and the amount of cash already received and reserving all questions of costs and expenses not therein disposed of. 89 Fed. 218. At the last foreclosure sale a balance was left due on [184 U.S. 290, 294] the trust deed of $33,414.21. September 22, 1898, the purchaser at the second sale petitioned for a final conveyance, and on October 15, 1898, a decree was entered directing the completion of the sale by a cash payment and conveyance. A motion was made to set aside this decree, which was overruled, whereupon an appeal was taken to the circuit court of appeals. The appeal was heard, and the decree of the circuit court was on May 16, 1899, affirmed. 36 C. C. A. 236, 94 Fed. 269. Application was made to this court for a certiorari, which was denied October 30, 1899. 175 U.S. 726 , 44 L. ed. 339, 20 Sup. Ct. Rep. 1022. May 12, 1900, an appeal to this court was allowed by Pardee, J., in order to preserve any possible rights of the applicants, although he expressly stated that he seriously doubted the right of appeal. Appellees moved to dismiss the appeal, the consideration of which motion was postponed to the hearing on the merits.
Messrs. John T. Morgan, King & Spalding, J. L. McLaurin, F. L. Welles, Alex. C. King, John M. Chilton, Edgar H. Farrar, Benjamin F. Jonas, and Ernest B. Kruttschnitt for appellants.
Messrs. L. D. Brandeis and William H. Dunbar for appellees.
The act of March 3, 1891, chap. 517 (26 Stat. at L. 826), provides in 6 that the circuit courts of appeals shall have appellate jurisdiction to review judgments and decrees of the circuit courts in all cases in which a direct appeal is not allowed by 5 to this court, and that the judgments and decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely on diversity of citizenship.
The jurisdiction referred to is the jurisdiction of the circuit court as originally invoked. Colorado Cent. Consol. Min. Co. v. Turck, 150 U.S. 138 , 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Press Pub. Co. v. Monroe, 164 U.S. 105 , 41 L. ed. 367, 17 Sup. Ct. Rep. 40; Ex parte Jones, 164 U.S. 691 , 41 L. ed. 601, 17 Sup. Ct. Rep. 222; American Sugar Ref. Co. v. New Orleans, 181 U.S. 277 , 45 L. ed. 859, 21 Sup. Ct. Rep. 646; Arkansas v. Kansas & T. Coal Co. 183 U.S. 185 , ante, 47, 22 Sup. Ct. Rep. 47. [184 U.S. 290, 295] If after the jurisdiction of the circuit court attaches on the ground of diversity of citizenship, issues are raised, the decision of which brings the case within either of the classes set forth in 5, then the case may be brought directly to this court, although it may be carried to the circuit court of appeals, in which event the final judgment of that court could not be brought here as of right. Loeb v. Columbia Twp. 179 U.S. 472 , 45 L. ed. 280, 21 Sup. Ct. Rep. 174. If the jurisdiction of the circuit court rests solely on the ground that the suit arises under the Constitution, laws, or treaties of the United States, then the jurisdiction of this court is exclusive, but if it is placed on diverse citizenship, and also on grounds independent of that, then, if carried to the court of appeals, the decision of that court would not be made final, and appeal or writ of error would lie. American Sugar Ref. Co. v. New Orleans, 181 U.S. 277 , 45 L. ed. 859, 21 Sup. Ct. Rep. 646.
The general intention of the act was to distribute the appellate jurisdiction and to permit an appeal to only one court. Robinson v. Caldwell, 165 U.S. 359 , 41 L. ed 745, 17 Sup. Ct. Rep. 343.
In this case appellants did not attempt to take an appeal directly to this court from the circuit court, nor could they have done so, since no question was so raised as to bring the case within either of the classes named in 5. Cornell v. Green, 163 U.S. 75 , 41 L. ed. 76, 16 Sup. Ct. Rep. 969. The ground on which the jurisdiction of the circuit court was invoked was solely diversity of citizenship, and the record does not show anything to the contrary, so that the decree of the circuit court of appeals cannot be regarded otherwise than as made final by the statute.
The question before us is whether this appeal was properly granted and can be maintained. In all cases where the decree or judgment of the circuit court of appeals is made final by the statute, an appeal does not lie, but any such case may be brought here 'by certiorari or otherwise.' The latter words add nothing to our power, for if some other order or writ might be resorted to it would be ejusdem generis with certiorari. The writ is the equivalent of an appeal or writ of error as declared by the statute, and it is issued in the discretion of the court.
The record filed in this case June 25, 1909, was entirely in- [184 U.S. 290, 296] sufficient, and appellants applied for certiorari to perfect it by bringing up the alleged lacking portions. We granted that application, and the omissions were supplied. This auxiliary writ did not operate to bring the case before us or in itself to add any support to the appeal, which must stand or fall according as the statute did or did not allow it to be taken. Many matters are urged, such as alleged lack of indispensable parties below and so on, as reasons why an appeal ought to lie, but our jurisdiction depends on the statute, and cannot be enlarged by the supposed hardship of particular cases. Finally, it is argued that a large part of the property dealt with by the decree is situated in the state of Alabama, and it is said that therefore the decrees of both courts are void for want of jurisdiction over the subject-matter.
As the circuit court had jurisdiction over the mortgagor company, the company claiming under it, and the surviving cotrustee of complainant, and the trust deed was made and executed in Georgia, where part of the property was situated, the courts below may have assumed that the case came within Muller v. Dows, 94 U.S. 444 , 24 L. ed. 207; International Bridge & Tramway Co. v. Holland, 26 C. C. A. 469, 52 U. S. App. 240, 81 Fed. 422, and kindred cases.
But we need not discuss the validity of the decrees in this regard. If the point had been raised in the circuit court, and its decision would have justified an appeal directly to this court, no such appeal was taken. If its existence in the record justified a review of the decree of the circuit court of appeals, the proper course was to apply for a certiorari. That course was taken in this case, and the application was denied. In view of repeated and well-considered decisions of this court, some of which we have cited, we are unable to find any ground on which this appeal can be sustained.

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