United States v. de Masi, 1st Cir. (1994)

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USCA1 Opinion

         

 

United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________

No. 92-2062

   

UNITED STATES, Appellee,

 

v.

   

RALPH DE MASI, Defendant, Appellant.

 

____________________

 

No. 92-2064

   

UNITED STATES, Appellee,

 

v.

   

RONALD MARTEL, Defendant, Appellant.

 

____________________

 

No. 92-2065

   

UNITED STATES, Appellee,

 

v.

   

ROBERT PAPA, Defendant, Appellant.

 

 

 

____________________

No. 92-2066

   

UNITED STATES, Appellee,

 

v.

   

FRANCIS BONASIA, Defendant, Appellant.

 

____________________

 

No. 92-2142

   

UNITED STATES, Appellant,

 

v.

   

FRANCIS BONASIA, Defendant, Appellee.

 

____________________

 

   

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

   

[Hon. Walter Jay Skinner, U.S. Senior District Judge] __________________________

 

____________________

 

Before

     

Selya, Boudin, and Stahl, Circuit Judges. ______________

     

       

____________________ Seth Seth M. Ka Kalb lber erg, g, Jr Jr. . fo for r ap appe pell llan ant t De DeMa Masi si; ; Co Corn rnel eliu ius s H. Ka ____________________ ______________ for appellant Martel; Paul J. Garrity for appellant Papa; ________________ Michael Micha el McGui McGuinness nness, , with whom McGui McGuinness nness and Parla Parlagreco greco, , was o __________________ __________________________ for appellant Bonasia. Timothy Timothy Q. Feele Feeley, y, Assis Assistant tant Unite United d State States s Attor Attorney, ney, wit __________________ Donald K. Stern, United States Attorney, was on brief for appel _______________

 

____________________

   

October 26, 1994 ____________________

       

STAHL, STAHL,

criminal trial,

Circuit Judge. Circuit Judge. _____________ defendants

Following

Francis Bonasia,

a seventeen-

Ralph

DeMas

 

 

Ronald

Martel, and Robert Papa

various charges stemming from a Brink's Brink's armo armored red truc truck. k.

were convicted by

the attempted armed robbery

On appe appeal, al, DeMa DeMasi, si, Mar Martel, tel, and Pa

 

together, and Bonasia individually,

 

including denial

of a

a jury

raise a series of issu

suppression motion and

challenges

sufficiency of the evidence and v various arious p portions ortions

of the ju

 

instructions.

Bonasia separately assigns error to the deni

 

of

motions

 

government

 

in sentencing Bonasia to

depart downward from the Sentenci

 

Guidelines.

the

 

raised by the defendants.

 

district

 

Guidelines

 

vacate Bonasia's sentence and remand for resentencing.

severance

and

an

evidentiary

cross-appeals from the

We affirm

court

T

district court's decisi

district court

on

all issu

At the same time, we find that t

incorrectly

interpreted

in fashioning Bonasia's

     

I. I. __

 

Background

   

Background __________

 

ruling.

the

sentence.

Sentenci

We therefo

Because the defendants challenge the sufficiency the

evidence supporting light most

their

   

facts in the

   

States v. ______

   

denied, 114 S. Ct. 409 (1993). ______

convictions,

favorable to the

Innamorati, 996 __________

F.2d 456,

we recite

verdict.

469 (1st

t

Unit ___

Cir.), cer __

 

 

-3-

 

Near Investigation

the

end

June, DeMasi and Martel

 

Pines Campground in

 

during

 

Tuesday, September the

parking

Newburyport,

July 1991,

("FBI") agents learned

 

the

of

on

10, 1991, the

the

five Tuesdays

Plaza

Shopping

Throughout

at t

Subsequentl

FBI agents observed

Port

Massachusetts.

Brink's armored

that, sometime in la

Amesbury, Massachusetts.

of

Bureau

had rented a summer campsite

noontime hour

lot

Federal

that

precedi Martel Center summer,

truck made a scheduled stop between noon a

 

1:00 p.m. on Tuesdays

 

Shopping Center.

Martel's visits to the Port

 

lot

with the

 

truck.

 

visits, missing only

 

Papa and defendant George Pinto1 joined Martel and

corresponded

at the Shawmut Bank in

DeMasi accompanied

scheduled Martel

stop

Plaza parki

of the

on four

the visit on Tuesday,

the Port Pla

of

Brin

these fi

August 27, 199 DeMasi

the parking lot during the visits on August 20, and Septemb    

3, 1991. Bonasia was also present

at the Port Plaza parki

 

 

lot on Tuesday, September 3, 1991.

 

he

met

separately

with

both

W While hile at the parking lo DeMasi

surveillance photograph taken during  

depicts Bonasia and

and

Martel.

his meeting with Mart

Martel standing together looking

towa

  ____________________      

1. Pinto was tried and convicted along with the ot defendants and joined in the consolidated appeal. Pint however, died on September 15, 1992, and his appeal subsequently dismissed.

   

-44

 

the

Shawmut

 

parking lot and

 

regularly scheduled stop at the Shawmut Bank.

   

Bank.

observed the

On the p.m., an

Afterwards, Bonasia

remained

Brink's truck as

evening of August 26, 1991,

FBI agent

observed Martel in

in

t

it made

i

at around 9:

the back seat

of

automobile, registered to Bonasia's wife, stopped in front the

Shawmut Bank in the Port Plaza Shopping Center.

 

the automobile

 

general physical

 

DeMasi

left

was

an older

description.

the car,

white male After

walked over

to

who fit

Bonasia

the vehicle the bank

Drivi

stoppe

and peer

 

 

inside one of its

 

was

 

Bonasia's own

 

the

Pines Campground several times a week over the course

the

summer,

again

windows.

observed

at

Later that evening, DeMasi

gray Buick

and

the vehic

Martel's

was observed entering

including at

least

three

campsit and exiti

different times

August 30, 1991.  

At approximately

 

DeMasi and Martel left

 

they

8:15 a.m. on

September 10, 199

the Pines Campground.

were observed standing next

which was located on the

to a dark

At

9:30 a.

green cargo

far side of the Market Basket

 

directly adjacent to the Port Plaza Shopping Center.

 

time,

At t

FBI agents identified the license plates on the van

stolen.  

Ma

Bonasia

Shortly in

photographs

the

before noon, Port

taken

Plaza

DeMasi and

parking

contemporaneously

   

Martel met

lot. shows

A

wi

series

Bonasia

fir

-55

 

walking

away

 

toward DeMasi, and finally

looking down at his watch.

 

same

Pinto

morning,

from DeMasi's

Papa

and

automobile,

were

then

also

turning ba

observed

T a

 

 

photographed driving through the Port Plaza parking lot in separate vehicle.

 

After

meeting

to the

with

green van

Bonasia,

parked

DeMasi

Mart

far side

of t

 

returned

 

Market Basket Mall, where they were joined by Papa and Pint

 

The

 

unlocked

 

van, with Papa

 

Plaza parking lot

 

arrival of

 

parking

 

route

four defendants exited and with

parked.

just prior

Shawmut

Bonasia

The gre

truck.

 

accessed by the green van. pulled

and paused.

the

Bonasia

 

and

 

signal,

 

automobile towards the Shawmut Bank.

gave Papa a "thumb's drove

the

from the dire

where Bonasia

location more

easi

to

Bonasia's gr

then leaned forward

up" signal. green

t

a mo

van adjacent

Buick

expect

gray Buick from

lot to a

 

the Po

Upon entering

towards

had just moved his the parking

for the

green van away

Bank and

crowded area of

Papa

ignitions.2

to the time

armored

lot, Papa drove the

Papa

in the

leaving t

driving, was next observed entering

 

 

their automobiles,

the keys

the Brink's

to the

on the

and

van

in his se

After receiving t away

from

Bonasia

  ____________________      

2. Papa and Pinto also left the trunk of their automobi unlocked and open. Mo Moreover, reover, each of the two cars had stol license plates affixed over their regular plates.

 

-6-

 

6

 

 

Shortly

thereafter, FBI

the gre

 

van and arrested

 

time of the arrests, DeMasi

 

a nylon stocking pulled down over his forehead, and a bulle

 

proof

 

stocking,

 

Martel also wore gloves, and a third nylon stocking was fou

 

in the back of the van next to where he had been sitting.

vest.

DeMasi, Martel,

agents stopped

Pinto

and had

a

was

Papa, and Pinto.

At

t

was wearing brown cotton glove

wearing

pair of

similar gloves,

handcuffs

in his

a

nyl

waistban

the front seat next to where Papa had been sitting was a bl  

ski

mask

and an

additional set

of

 

portable scanner rested on the empty front passenger seat. loaded semi-automatic nine millimeter

 

behind

the front

 

millimeter pistols and a

 

in the rear compartment of the van.

 

At

seat, and

a pay

An operati

Uzi carbine was

two loaded

fou

semi-automatic ni

loaded six-shot revolver were fou

approximately the same

been walking from

gloves.

time, Bonasia,

phone towards his

arrested by a Rhode Is Island land Sta State te Troo Trooper. per.

who

gray Buick,

At th the e time of

arrest, Bonasia was approximately five to eight feet from automobile.  

standing

Immediately after

near

binoculars

on

Bonasia's the

front

the

automobile

arrest,

an FBI

observed

passenger seat

a

inside

age

pair the

gr

 

 

Buick.3

  ____________________      

3. Subsequent to Bonasia's arrest, FBI agents conducted t warrantless searches of Bonasia's automobile. Bonas successfully moved prior to trial to suppress all eviden

   

-77

   

Defendants Bonasia,

DeMasi,

conspiring

and

violation of 18  

conspiring and

and

attempting U.S.C.

to

371

together Papa commit

before

were

jur

convicted

bank

and 18 U.S.C.

attempting to

a

robbery, 2113(a),

a

affect interstate commerce

of the

Hobbs Act, 18

U.S.C.

195

Additionally, all defendants were convicted on four counts using

or

924(c).

carrying a Following

 

charges,

 

subsequently found

 

counts U.S.C.

 

tried

Martel,

robbery, in violation  

were

additional

of

firearm in the return evidence

violation of

was

the

of 18

U.S.C.

verdicts

on the

offered,

DeMasi, Martel, and Papa

violating

the

and

II.

ju

guilty on thr

felon-in-possession

922(g)(1).

the

statute,

 

   

II. ___

     

Discussion Discussion __________

   

A. Alleged Pre-Trial Errors ____________________________

   

1.

Suppression Ruling __________________

 

Our review of the decision whether to grant or de

   

a suppression motion is "plenary."

 

943 F.2d 110, 112 (1st

United States v. Sanche _____________ _____

Cir. 1991).

We defer, however,

to

district court's factual findings if, on a reasonable view the evidence, they are not clearly erroneous.    

United

Stat

___________ v. Beltran, 917 F.2d 641, 642 (1st Cir. 1990). _______

  ____________________  

obtained from these searches. -8-

 

 

8

DeMasi,

Martel,

and Papa

challenge

the distri

 

 

court's refusal

to suppress

 

van at

 

FBI had probable cause to make the arrests and that, if the

 

arrests

the time of

their arrests.4

were lawful,

the van's

evidence were also lawful.  

the

evidence seized from

arrests violated

search and

that t

the seizure

the Fourth

later than

Amendment because

the

They maintain that probab

 

cause

 

arrests, when the

 

and

 

that the government should have procured an arrest warrant that

no

They concede

Defendants contend, however, t

effected them without a wa warrant. rrant. arose

the gre

early

on

FBI identified the

the

morning of

green van that

t

DeMa

Martel had visited as bearing stolen license plates, a

time.

Ultimately,

 

delay and

 

legality

 

seizure of evidence.

they argue

ultimate failure to of

their arrests

that the

obtain a warrant

and

the

government negates t

subsequent search

a

We disagree.

Defendants' argument rests on the

proposition t

 

the government's allegedly "predesigned" and "improper" del

 

somehow invalidated the defendants' otherwise proper arrest

  ____________________              

     

4. Bonasia also contests the failure to suppress t evidence seized from the green van. It is, howeve axiomatic that Fourth Amendment rights are personal to t individual. Sanchez, 943 F.2d at 112. Bonasia was n _______ present in the van during the arrest, nor does he own the or claim any possessory rights in the seized evidenc Hence, Bonasia has no legitimate expectation of privacy which to base his claim. See United States v. Sepulveda, F.3d 1161, 1194 2714 (1994).

___ _____________ _________ (1st Cir. 1993), cert. denied, 114 S. C _____ ______

 

   

-99

 

The

Supreme

Court,

however,

has

refused

 

significance to the

   

to obtain a warrant but declined

   

States v. Watson, 423 U.S. 411, 423-24 (1976). ______ ______

 

the Court stated

 

not whether there was a warrant or

to

fact that the government had to procure one.

atta

ample ti See Unit ___ ___

Specificall

that "[t]he necessary inquiry

. . .

[i

wheth whether er there was time

get one, but whether there was probable cause" at the time the arrest.

Id. ___

 

at 417.

it

Indeed,

had more

than

the government in

 

conceded

that

sufficient

 

obtained

a warrant prior to the arrest.

 

426 (Powell,

J., concurring)

 

between time

probable cause arose

 

the Supreme Court has

(as much as

time

Wats ___ to ha

Id. at 414; id. ___ ___ six days

elaps

and the arrest).

Henc

directly rejected the underpinnings

defendants' argument.  

The effect

 

an

Constitution

arrest

in

a

does not

public

require

place.

a

Id. ___

warrant at

423-2

 

 

Moreover, law enforcement agents need only possess reasonab

 

suspicion that a criminal stop a moving

25

activity is occurring in order

automobile to investigate.

F.3d

 

Kimball, _______

 

undisputed that the FBI agents had probable cause to stop t

 

green

 

The

van when

1,

6

(1st

it entered the

arrests of DeMasi, Martel,

Cir.

United States _____________

1994).

Port Plaza

Here,

Shopping Cente

and Papa were

effected in

public place, the midd middle le of the s shopping hopping center  

Accordingly, no

it

arrest warrant was required,

parking lo

and whether

-10 

10

 

not

the FBI agents could

 

the arrests is irrelevant. 2.

   

have obtained one

prior to maki

Severance Rulings _________________

We now turn to Bonasia's challenges to the distri

 

court's denial of

 

are

   

questions."

his motions for severance.

afforded considerable

leeway

United States v. _____________

"Trial cour

in determining

severan

Pierro, No. 93-1313, slip o ______

 

 

at 8 (1st Cir. July deny a motion

27, 1994).

for severance

"We reverse the

only upon a

decision

showing of

stro

 

prejudice, demonstrating a manifest abuse of discretion

 

deprived

 

Nason, _____ 9 F.3d 155, 158 (1st Cir. 1993), cert. _____

 

Ct.

 

than

   

United States ______________

   

(quotations omitted), cert. denied, 498 U.S. 849 (1990). _____ ______

the defendant of a

1331 (1994).

 

Prejudice, in

United States _____________ d denied, enied, 114 ______

this context,

"means mo

just a better chance of acquittal at a separate trial

 

v.

Bonasia avoid

fair trial."

t

the

Boylan, ______

898

prejudice

spillover effect from evidence the

230,

maintains that severance

substantial

codefendants,

F.2d

effect

246 (1st

Cir

was necessary

he suffered

due

to

t

admitted at trial against

of codefendant

DeMasi's

pro ___

representation, and the impact resulting when several membe  

of

the

jury saw

handcuffs.5

his

codefendants enter

the

courtroom

We are not persuaded.

  ____________________      

 

5. Bonasia perfunctorily raises several additional argumen in support of his severance appeal, such as "antagonist defenses" existing between him and his codefendants, -1111

 

   

Bonasia's spillover claim fails because met his burden is

true that

of showing substantial prejudice. substantial evidence

admitted at

only indirectly, this factor alone

he has n Though trial dea

 

with him

 

to

 

where

 

defendant, or where one defendant's involvement in an overa

 

agreement

 

court of appeals must be `reluctant to second guess severan

   

denials.'"

   

Cir.

 

"[w]here

 

admissible

   

convincingly complain of an

grounds for reversal. large

amounts

of

is far less

testimony are

Bonasia, like his

irrelevant

Boylan, 898 ______

a

F.2d

at 246).

one defendant

codefendant,

to

o

of others,' t

v. O'Bryant, 998 F.2d 21, ________

evidence featuring against

settled that `[e]

than the involvement

United States _____________

1993) (quoting

"It is well

does not amou

26 (1

Moreove

is independent

the

latter

cann

improper spillover effect."

codefendants, was charged with

attempting to rob the armored Brink's truck.

I

conspiri

 

and

 

if the government had tried Bonasia separately, nearly all the evidence presented here separate

trial

against

him

Thus, e

would have been admissible in to

prove the

object

of

t

  ____________________  

inability to

obtain exculpatory testimony and

his inabili

 

                 

to sit with his counsel at trial. Bonasia failed to rai these issues at trial in support of his motions f severance. Moreover, on appeal, he fails to adequate explain how he was prejudiced by them. We therefore dee them waived. See United States v. Lilly, 13 F.3d 15, 17___ _____________ _____ (1st Cir. 1994) (failure to raise arguments below results waiver) and United States v. Zannino, 895 F.2d 1, 17 (1 ___ ______________ _______ Cir.) (perfunctorily raised arguments waived), cert. denie

   

494 U.S. 1082 (1990).

_____ ____

   

 

-1212

conspiracy and the attempted robbery. not met

 

his

burden

of

showing

Therefore, Bonasia

that

he

suffered

stro

prejudice.6

 

Bonasia's

complaint

of

prejudice resulting

representation is equally without

fr

 

DeMasi's pro se ___ __

   

codefendant's

 

grounds

 

that

 

United

 

______________

   

Person v. Miller, 854 F.2d 656, 665-66 (4th Cir. 1988), cer ______ ______ __

pro se ___ __

representation is

for severance;

strong

prejudice

a defendant resulted

States v. Tracy, 12

merit.

not, without

must additionally

from

mor

s

the

representatio

F.3d 1186, 1194

(2d Cir. 1993

_____

 

 

denied, 498 ______

   

Cross, _____

 

prejudice"

U.S.

928 F.2d

1011 (1989);

1030,

resulted

representation),  

see ___

also United States ____ ______________

1039-40 (9th

from

cert. denied,

Cir.) (no

"compelli

codefendant's

112 S.

Ct. 594

pro ___ (1991), a

_____ ______

 

cert. _____

denied, 112 ______

 

points us to no

 

before

S.

Ct. 941

(1992).

Bonasia,

howeve

specific prejudicial incidents that occurr

the jury.7

Bonasia therefore

cannot

convincin

  ____________________  

6.

     

the three felon-in-possession counts charged only again Bonasia's codefendants. These issues were tried to the ju after it had returned a verdict on all the other charges.

             

We also note that the district court was careful to se

7. Bonasia cites two statements by DeMasi as bei inflammatory and prejudicial, but the first occurred at pretrial hearing and the second occurred at DeMasi sentencing. Bonasia also notes that DeMasi allege threatened Bonasia's trial counsel over a dispute concerni the order in which defendants would present final argument The alleged threat, however, occurred outside of t courtroom and after the close of evidence. Bonasia's couns brought the alleged threat to the attention of the judge, ordered

 

all

the

defendants

to

-1313

present

arguments

 

 

argue that

 

on this ground.

 

the district court should

Bonasia's

final

claim

that

 

because the jury viewed

 

in handcuffs is similarly unavailing.

 

on

 

brought

 

The record

the eleventh day of into the

have granted severan

he

was

prejudic

his codefendants enter the courtro This incident occurr

trial, when the

courtroom before

jury was mistaken

the defendants

entere

reveals that, at most, no more than one or two

the jurors briefly observed

a single defendant in h handcuff andcuff

 

After the incident, the district judge separately

 

each juror, inquiring

 

anything unusual, and determined that the danger of prejudi

 

to

 

carefully cautioned each juror not to discuss the questioni

 

or anything he or she had

the

defendants

believe that

the

and

whether each had either seen

was

insignificant.

district court

incident

 

defendants.

 

discretion in denying Bonasia's

 

minimized

The district

The

or hea

court

any

appropriately handled

possible

prejudice

Cir.

1988) (mistrial

 

defendant in shackles).

t

to

t

court therefore did not abuse

i

renewed severance motion

Cf. United States v. Pina, 844 F.2d 1, ___ ______________ ____

 

al

notice noticed d with the other jurors.

 

this ground.

question

not warranted

where three

8 (1

jurors s

____________________        

alphabetical order. Nevertheless, Bonasia's counsel agre to argue fourth with DeMasi arguing last. We cannot say t this change in the order of final arguments deprived Bonas of a fair trial.

 

   

   

-1414

B. Alleged Trial Errors ________________________

   

1.

Evidentiary Ruling __________________

 

Bonasia testimony from

challenges

the

an FBI agent who

admission

at

trial

observed binoculars prese

 

on the front seat of Bonasia's gray Buick following Bonasia

 

arrest.

 

admitted because all evidence

 

searches of

 

any evidence trial.

 

Bonasia argues

that the testimony

was incorrect

resulting from two warrantle

his automobile (which, he

argues, would inclu

of the binoculars) had been suppressed prior

This argument is without merit. In general, we

review a district

court's decisi

   

to admit evidence for abuse of discretion.

See, e.g., Unit ___ ____ ___

   

States ______

Cir. 1993).

 

suppression

v. Fisher, ______ order

3 F.3d

456, 461

excluded

"all

(1st

evidence

obtained

T

as

result" of the illegal searches of Bonasia's automobile.  

order, however, did not and could not extend to evidence t

T

 

 

derived

from

an independent

   

unlawful

 

533,

 

Thus,

 

concerning

 

from the illegal searches.

 

that "[i]f an article

 

observation

searches.

legal

See Murray ___ ______

apart from

v. United States, _____________

t

487 U.

536-41 (1988) (explaining independent source doctrine the

privacy."  

question is

whether

the binoculars

nor its

Horton ______

the

had an

seizure would

 

15

privacy,

shielding

automobile which either

involve any

v. California, 496 __________

"[t]here

is

that

testimo

independent source

is already in plain view,

-15-

Furthermore,

FBI agent's

apa

On this point, it is beyond dou

 

 

source

no

may be viewed

inquisitive passersby

of

invasion

U.S. 128, 133

legitimate

portion

neither i

the

expectation interior

from outside the

or diligent

(1990

of

vehicle

police officers

   

Texas v. Brown, 460 U.S. _____ _____

730, 740 (1983) (plurality opinio

   

(citation omitted); see also United States v. Ware, ___ ____ _____________ ____

 

997,

914 F.

1000 (7th Cir. 1990); Brumfield v. Jones, 849 F.2d 15

 

   

_________

_____

155 (5th Cir. 1988).

 

The

 

binoculars participated Bonasia's

agent

who

testified

at

in neither the

automobile nor Bonasia's

trial

about

t

illegal searches

arrest.

At

the time

the arrest, the agent was legitimately present in the parki  

lot, standing

 

At

 

binoculars the

trial,

several feet

the

agent

away from

merely

Therefore,

the

independent legal source apart  

testified

which were in "plain

vehicle.

Bonasia's automobil to

view" on the agent's

observing

t

front seat

testimony

had

from the illegal searches a

was properly admitted.8

   

2.

Sufficiency of Evidence _______________________

 

We now of

turn to the

the defendants' challenges

evidence.

In

assessing

to t

 

sufficiency

evidentia

 

sufficiency, "[o]ur task is to review the record to determi

  ____________________              

8. Bonasia also challenges a reference by the district cou to the binoculars in the jury instructions and a simil reference by the prosecutor in summation. Because we ru that the testimony concerning the binoculars was proper admitted, neither of the challenged references was improper -1616

 

 

whether

the

 

taken

 

prosecution, would allow a

rational jury to determine beyo

 

a

the

as a

evidence and whole and

reasonable

doubt

reasonable

in the

that

light

inferences therefro most favorable

defendants

were

charged."

United States v. _____________

   

(1st

1993),

   

modified ________

 

No.

 

at

 

circumstantial

evidence of

 

evaluating the

relative weight of different

 

or

 

Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). _________

 

satisfied

 

reasonably have

 

ourselves that the record

 

jury did return.

  Cir.

cert. _____

Mena-Robles, 4 F.3d ___________

denied, ______

on other grounds sub __ _____ _______ ___

114

determination,

venturing

 

credibility

that no

insufficient to attempt.

 

evidence

must

credit

judgments."

verdict

1026, 10

Ct 1550

8, 1994).

guilt, but

other than

been reached;

(1994

In arrivi

both

direct

"must do

a

so witho

pieces of pro

United States ______________

one

W We e need not

of guilt

rather, we need

cou

only satis

plausibly supports the verdict t

Id. ___

Bonasia

 

we

guilty

nom., United States v. Pipe ____ _____________ ___

94-1197 slip op. (1st Cir. Sept. our

S.

to t

complains that the evidence against him

support his

He maintains

convictions for conspiracy

the government failed

that established

his

to offer

specific intent

either the criminal conspiracy or the attempt.

to join

Moreover,

a a

 

 

argues that the evidence amassed against him does not suppo

 

a finding that he performed a "substantial step"

 

completion

of the

attempted robbery.

 

-17-

 

17

In

towards t

essence, Bonas

 

contends that the evidence establishes only his mere presen

 

at

 

DeMasi and Martel.

the scene of the crime, and his sporadic association wi Again, we disagree.

To prove  

a charge

of

conspiracy, the

must establish beyond a reasonable doubt that an agreement working

relationship

existed,

unlawful purpose, and that

that the

into the agreement.

See ___

   

722,

(1st Cir.

1991), cert. _____

 

(1992).

Moreover,

the

 

defendant

both

 

commission of the

735

the conspiracy.

intended

agreement

had

the defendant voluntarily enter

   

 

governme

United States v. _____________ denied, ______

government to

must

agree and

to

David, 940 _____ 112 S.

prove

Ct. 23

that

t

effectuate

t

underlying offense that was United States v. _____________

F.

the object

Piper, No. 94-1197, _____

sl

 

 

op. at

8

(1st Cir.

defendant's

Sept.

8, 1994).

conspiratorial

"[T]he proof

involvement

may

of

consist

indirect evidence, including reasonable inferences drawn fr  

attendant circumstances."

   

To prove show

beyond a

Echeverri, 982 F.2d at 679. _________

a charge of attempt,

reasonable

doubt the

the government mu

defendant's intent

commit commi t the of offense fense charg charged ed and t that hat th the e defen defendant dant pe perform rforme e substantial

step

towards

the completion

Argencourt, 996 F.2d __________

of

the

offens

   

United States v. _____________

   

1993),

 

Bonasia's "mere presence" argument,

 

culpability of a defendant's presence hinges upon whether t

cert. denied, _____ ______

   

 

114

S. Ct.

731

1300, 1303 (1st

(1994).

Ci

Respecti

we have noted that "`t

-1818

circumstances

fairly

imply participatory

involvement.

other words, a defendant's "mere presence" argument will fa    

in situations where

the "mere" is lacking.'"

United Stat __________

 

   

v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (quoti ________________

 

Echeverri, 982 _________

 

U.S.L.W. 3066 (U.S. June 6, 1994) (No. 94-93). The clearly

F.2d at

678), petition ________

government's

sufficient to

evidence

support the

Bonasia

jury's finding the

of gui

beyond a

 

attempt counts.

 

surveillance

and his August 26, 1991, nighttime visit to t

 

parking

with DeMasi

lot

on both

against

filed, _____

 

 

reasonable doubt

for cert. ___ _____

conspiracy and

t

Bonasia's presence at the September 3, 199

inference

that

he

attempted

robbery.

Bonasia's frequent

and

Martel

participated This

in

plausibly support the

inference

visits over the

is

planning

of

t

strengthened

course of the

summer

DeMasi and Martel's campsite at the Pines Campground. Moreover, Bonasia's

activities on the

 

arrest tend to establish his complicity.

 

much disputed "thumb's up"

day of

t

Even aside from t

signal,9 Bonasia's activities

____________________        

     

   

9. Bonasia fervently maintains that we should disregard t FBI agent's testimony concerning the alleged sighting of t "thumb's "thumb's up" signa signal l becau because, se, under the condi conditions tions, , suc sighting was a "physiological impossibility." Bonasia "thumb's up" signal was observed by an FBI special agent was located in an undercover van in the parking lot some to 65 yards away. The agent made his observation whi peering through a hole in a plastic sheet that covered t windows of the van. At trial, both sides introduc photographs relating to whether the observation was possibl

-1919

 

 

September 10, 1991, go well beyond mere presence.

 

at the parking

 

arrival

 

Moreover,

an FBI

 

green van

entered the Port

was  

lot more

than an hour

He arri

before the

schedul

of the Brink's truck and met with DeMasi and Marte agent testified

that, shortly

Plaza parking lot,

pacing back and forth watching

before t

Bonasia,

the area, tellingly ga

the van in which the agent was riding a "very

close look"

it

inference t

drove

up.

This evidence

supports

an

 

Bonasia acted as a lookout during the attempted robbery.

 

participation is further corroborated

 

entering

 

Bonasia's gray Buick and pulled to a momentary stop alongsi

 

it before

heading to where the Brink's truck was to make i

 

scheduled

stop.

 

defendants in view

 

the parking lot,

by the fact that, up

Papa drove the

Significantly, prior

the green van

the area where they

evidence

to

green van towar

to this

detour, t

temporarily had been

unable

would encounter the Brink's truc

This underscores their need for a lookout. sufficient

H

support

a

In sum, there

finding

that

Bonas

 

voluntarily and intentionally joined the conspiracy, and t

 

he performed a substantial step towards the completion of t

 

robbery.

 

   

Bonasia

also challenges

evidence on the related firearm 924(c).

He points

the jury jury under

of

t

convictions under 18 U.S.C submitted

an aid aiding ing and abetting theory, which requir

-2020

 

the

   

weapons

   

Maldonado, 14 _________

 

under an

aiding and

 

known to

a practical certainty

government to would

[using] a  

be

establish used

F.3d at

that the

during

103 (to

the

defendant knew

crime.

sustain

See ___

 

lacks

any evidence

codefendants would

Torre ____

`must ha

that the principal

gun'" (quoting United States v. Powell, ______________ ______

724, 728 (D.C. Cir. 1991)).

t

924(c) convicti

abetting theory "accomplice

 

would 929 F.

Bonasia contends that the reco

to support

a finding

be using or carrying

that he

knew

firearms during t

attempted robbery. As

 

sufficiency

out that these charges were

   

 

the

more than

we have

noted, the

evidence adduced

adequately supports a finding

at tri

that Bonasia join

 

 

in the

conspiracy and participated in

 

of the Brink's truck.

the attempted robbe

This same evidence likewise supports

finding that Bonasia knew that his four codefendants would using

or carrying

firearms during

and in

relation

to t

 

attempted robbery.

 

State Troopers testified that Bonasia remained in the parki

 

lot

on September 3, 1991, and observed the Brink's truck f

 

the

entirety of its scheduled

 

jury could conclude that Bonasia understood the scope of w

 

a robbery of

an armored

 

entail.

therefore could

 

must

 

weapons.

It

have

known

As we

In particular, two different Rhode Isla

that

stop.

From

truck with two

this, a ration

armed guards

reasonably infer

his coconspirators

   

that Bonas

would

have noted before, "[i]n the

wou

be

usi

last analysi

-2121

 

criminal juries are not expected to

ignore what is perfect

   

obvious."

   

v. Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denie ________ _____ ____

 

486 U.S. 1009 (1988).10

Echeverri, 982 F.2d at 679; see also United Stat _________ ___ ____ __________

DeMasi,

Martel,

and

Papa

 

 

sufficiency challenges

 

defendants

essentially

insufficient to  

to rob the most, the

need detain contend

us only briefly. that

establish that they had

armored Brink's

truck.

government proved only

They

the

some

unspecified illicit

evidence

the specific inte maintain that,

that they were

the rear of the green van in the Port Plaza  

purpose.

The

present

parking lot wi

Defendants'

argument

completely unconvincing.

  ____________________  

10.

       

this court

                                   

 

In a

submission after oral

argument, Bonasia

direct

to United States v. Medina, 32 F.2d 40 (2d Ci _____________ ______ 1994), in which the Second Circuit reversed a defendant conviction for aiding and abetting a violation of 18 U.S.C. 924(c) due to insufficient evidence. Notwithstanding t defendant's knowledge of expected firearm use and role instigating the planning of the crime, the Second Circu held that the evidence was insufficient to show that t defendant "consciously and affirmatively assisted" in t specific 924(c) violation. Id. at 45. ___ Here, Bonasia's circumstances are clearly differe from those in Medina. The defendant in Medina was n ______ ______ present at and did not participate in the commission of t underlying felony. Id. at 42-43. Indeed, this fact weig ___ significantly in Second Circuit's analysis. Id. at 46 ("H ___ Medina been present at the attempted robbery, we wou consider whether his conduct at the scene facilitated promoted the carrying of a gun, or whether he benefitted fr the gun's use so that he could be said to constructive possess the gun; but he was not there." (citation omitted) Here, Bonasia was present at and played a significant part the attempted armed robbery.

-2222

 

 

Substantial

evidence was introduced at trial whi

 

tended to

 

(and all

 

carefully observed the scheduled stop of the Brink's truck each

 

establish that of them

of the

robbery.

at one

five

In

time or

an

FBI

of these

another) was

Tuesdays preceding

addition,

September 3, 1991,

at least one

defendan present a

the foiled

agent

DeMasi, Martel, and

attempt

testified that

Papa waited for

a

 

then followed a Brink's truck as it made one of its schedul

 

stops prior to reaching the Port Plaza Shopping Center.

 

this

 

defendants

 

evidence

 

Martel, and Papa.

evidence,

a

rational

intended to rob

therefore

jury could

the Brink's armored

supports

   

3.

 

We now turn

the

convictions

that

t

truck.

T

of

DeMas

challenges to

vario

Jury Instructions _________________

 

portions

 

which

 

crediting

 

district court.

 

on

to defendants'

of the jury instructions.

assigns

appeal.

conclude

Fr

of

as error witness

an

Only the first of thes

instruction

testimony,

was

pertaining to raised

before

t t

The remainder were raised for the first ti

Accordingly, with the exception of the first,

 

 

will

review all

of

   

error.

   

28 F.3d 1296, 1308 (1st Cir. 1994), petition for cert. file ________ ___ _____ ___

 

___ U.S.L.W. ___ (U.S. Aug. 23, 1994) (No. 94-5760).

only for

pla

Fed. Fed. R. Crim. P. 30, 52(b); United States v. Whitin _____________ _____

   

-2323

   

defendants' challenges

Defendants jury

initially

challenge a

section

of t

charge in which the district court gave instructions

evaluating

witness

testimony.11

As

noted,

the

cou

  ____________________    

11. The defendants objected to the underlined language whi is set out in context below:

         

How do you deal with witnesses? most of the Government witnesses case have been FBI agents. Not them, but certainly the bulk testimony has come in through FBI

Well, in this all of of the agents.

         

There's nothing magic about them. You give the FBI agents the same scrutiny as you would anybody else, and you test their credibility by listening to them, determining what you can from tone of

 

                   

voice and expression of face. You try to search out the interior logic of their testimony: does it all fit together, does the body English that goes with the testimony give you a clue. You may consider that. It may give you a clue as to reliability, as to the confidence that the witness has. It may give you a clue as to whether the defendant is lying. In short, you use all of the techniques that

                         

you have developed in your lives for determining whether somebody is giving you reliable information. You do this all the time. You go ____________________________________ and buy a major appliance or an _________________________________________ automobile. You listen to the salesman. _________________________________________ You listen to political candidates, you _________________________________________ try to sort out disputes in your own _________________________________________

                         

household, perhaps the children or the _________________________________________ in-laws or the neighbors or something, _________________________________________ and you try to make a judgment about who _________________________________________ is giving you the closest approximation _________________________________________ of the truth. That's probably about what _________________________________________ we get at best. And you have to be _________________________________________ satisfied that all of these stories

                     

_________________________________________ together, all of this testimony together, _________________________________________ with its blemishes and defects, satisfies _________________________________________ you beyond a reasonable doubt of the _________________________________________ defendant's guilt before you can return a _________________________________________ finding of guilty. __________________

 

-24-

 

24

 

 

instructed

the jury

that,

in assessing

the testimony,

should utilize the experience and skills it had attained fr  

making

everyday

judgments

and

decisions.

Moreover, t

 

district

 

"you try to make a judgment

a about bout who is giving the

 

approximation

Defendants

 

instructions

 

jury

 

government's burden of proof.

court explained that in rendering these assessmen

and

of

truth."

trivialized

had

the

contend

the fact-finding

overarching

effect

that

function of

close the of t

reducing

t

We are unpersuaded.

 

It is beyond dispute that the government must pro

 

every element of a charged offense beyond a reasonable doub

 

In re Winship, ______________

 

verdict to be based on a finding of guilt beyond a reasonab

 

doubt is

 

is

   

Louisiana, 113 S. _________

 

however,

 

forming

 

finding of guilt beyond a reasonable

not

397

U.S. 358,

a structural subject

to

364

(1970).

error of constitutional magnitude a

harmless

error

review.

Ct. 2078, 2082 (1993).

that each

piece of

a part of the

  ____________________

Failure of

It is

evidence and

mosaic making up

Sullivan ________ also tru

every "inferen

the jury's ultima

doubt need [not] itse

 

                 

Now, you can take part of a witness's story, part of a witness's testimony and reject others. You can take the part that seems to be reliable and reject what is unreliable, or what appears to be unreliable. You can also say, well, if this man is unreliable in one respect, I won't trust him in any other. But it is up to you. Those

   

judgments are yours. here for.

   

That's

what you're

-2525

 

be established beyond a reasonable doubt."

   

Corgain, _______

 

appropriate

question

reasonable

likelihood

5

F.3d

5,

10

on

United States _____________

(1st

Cir.

1993).

review

is

"whether

that

the

jury

Hence,

there

t

is

understood

t

 

instructions to

allow conviction based on proof insufficie

 

to

 

Ct.

 

instructions, we measure each instruction,

not in isolatio

   

but

a whole.

   

States v. Akinola, 985 F.2d 1105, 1112 (1st Cir. 1993). ______ _______

meet the Winship standard." _______ 1239,

1243

(1994).

within the context

Victor v. ______

Moreover,

of the

in

charge as

Nebraska, 114 ________ reviewing

ju

Unit ___

 

 

The

challenged instructions do not endeavor to s

 

forth the

government's burden

 

court correctly

of proof (which

described); instead, they guide considering

and

 

testimony.

This

 

court has attempted to define reasonable doubt by analogizi

 

to the

 

decisions

   

Nickens, 955 F.2d 112, 119-120 (1st _______

   

S.

   

Cir.), cert. denied, 437 U.S. 910 (1978). _____ ______

 

was merely

Ct. 108 (1992);

life.

exhorting the

   

different and

See, ___

jury

e.g., ____

witne distri

the significa

United States ______________

Cir.), cert. denied, 1 _____ ______ F.2d 21, 24-25 (1

Instead, the cou

to fulfill

judgment to bear on

inevitably

of

which the

by individuals in

Dunn v. Perrin, 570 ____ ______

bringing common sense the

a situation in

standard employed of daily

credibility

the jury

evaluating

is not

the

the distri

its function the evaluation

conflicting testimony

-2626

of t

 

 

various

witnesses.

 

reversible error.

This

certainly

does

not

constitu

 

Moreover, as defendants concede, the district cou

 

accurately set forth the proper standard for the government

 

burden of proof

 

of the instructions reveals

 

to

 

twelve times in the nine pages of jury instructions precedi

 

the isolated

 

number

 

contested statements were misconstrued by the jury as some

 

reducing the government's burden of proof.

the "beyond

in other sections of the charge.

that the district court referr

a reasonable

section

of correct

Our revi

doubt" standard

challenged here.

references

no

This

negated any

less t

overwhelmi

chance that

t

See United Stat

 

___ __________

   

v.

Glenn, 828 F.2d 855, _____

 

error

where

numerous

jury could

other

correct

861 (1st Cir.

not have

1987) (no reversib

been

misled in

instructions about

light

presumption

innocence and government's burden).  

Defendants, as time

we have

several additional

noted, also raise

 

first

 

court's jury instructions.

   

court

 

concerning

   

committed

 

States, 328

 

______

 

permitted jury to convict a conspirator for a coconspirator

 

acts that

erred by

giving an

U.S.

to the

distri

Bonasia argues that the distri improper "Pinkerton" _________

Bonasia's liability by his

objections

for t

for

coconspirators.

640 (1946)

instructi

the substantive See Pinkerton ___ _________

(approving

were committed in furtherance

cri

v. Unit ___

instructions

t

of the conspiracy

 

   

-2727

 

DeMasi, Martel, and Papa claim that

 

by

incorrectly

creating a

defining the

the district court err

elements

logical progression of steps

jury to

a

guilty

that inevitably l

the

 

defendants object

 

maintain, were prejudicial, assumed various material facts

Though

defendants

addition,

all

fo

to various isolated statements which, t

true, and deprived them

the

In

attempt, and

 

jury trial.

verdict.

of

are

of their Sixth Amendment right

a few of the instructions problematic,

we

to

identified

cannot

say

tha

 

individually or collectively, they rise to the level of pla

 

error.12

  ____________________      

12. In his reply brief, defendant Bonasia makes o additional challenge to the jury instructions. Bonas argues that a portion of the charge is nearly identical language this court held to be reversible error in Unit

   

___ States v. Harrigan, 586 F.2d 860 (1st Cir. 1978). ______ ________ Harrigan, the district court instructed the jury "that t ________

   

 

                 

defendant's evidence has no greater function than simply raise a reasonable doubt in your minds, if it does. T defendant is not required to go any further." Id. at 86 ___ In the present case, the district court stated that "[t] defendants' efforts have one purpose only and no more t one purpose. And that is to create reasonable doubt Bonasia maintains that this instruction created t impression that the defendant had the burden to pro reasonable doubt.

                       

Neither Bonasia nor any of his codefendan objected to this portion of the charge at trial. Moreove Bonasia raised this issue only in his reply brief. As t court has consistently held, issues raised for the first ti in appellant's reply brief are generally deemed waive United States v. Brennan, 994 F.2d 918, 922 n.7 (1st Ci _____________ _______ 1993); United States v. Michaud, 925 F.2d 37, 43 n.8 (1 _____________ _______ Cir. 1991); United States v. Benavente Gomez, 921 F.2d 37 ______________ _______________ 386 (1st Cir. 1990). So it is here. And, in any event, discern no plain error in this instruction. Unlike Harriga

   

______ the jury was not told that the defendant was "required" to anything; instead, it was only told, if somewhat clumsil

   

-2828

   

Under "plain error" review, the burden falls on t appellant to show that there "clear" or

is an error, that the

"obvious," and that it

   

rights."

United States v. ______________

 

(1993); Whiting, 28

has affected "substanti

Olano, 113 S. _____

F.3d at 1308.

error

Ct. 1770,

In most cases,

1776

an err

 

   

_______ will be found to have "affect[ed] substantial rights" only inter _____

 

impact

 

1778.

alia the ____

error was

on the outcome

   

prejudicial such

of the trial.

that it

Olano, 113 _____

Even then, our review is discretionary.

S. Ct.

Id. ___

"[

 

plain

substantial rights does

not, witho

   

more," warrant the exercise of this discretion.

Id. at 177 ___

 

A

 

discretion a

error affecting

had

reviewing

court

should

limit

the

exercise

"miscarriage

of

justice"

such

as

"the

conviction

  words,

"we

shocking

t

to cases where the failure to act would result

sentencing of an actually innocent defendant."

 

of

review

only

`blockbusters:

Id. ___

those

In ot

errors

that they seriously affect the fundamental fairne

 

and

 

United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st Ci

 

_____________

   

1991) (quoting

 

(1st Cir.), cert. denied, 484 U.S. 844 (1987)). _____ ______

           

basic integrity

We

of the

proceedings

conducted below.

_____________ United States _____________

first

consider

v. Griffin, _______

Bonasia's

818 F.2d

objection

97, 1

to

t

district court's inclusion of an allegedly improper Pinkert ______

____________________ what defendants were trying to do in this case. __ ____ ____

 

   

 

-2929

instruction.13 the court's

Bonasia

failure to

argues

that he

was prejudiced

limit liability under

  to only

those reasonably __________

the Pinkert ______

 

doctrine

 

coconspirators

done

 

Bonasia claims

that the

 

foreseeable"

a

direct

 

verdict in favor of the government on the 18 U.S.C.

924(

 

charge.

in

foreseeable acts ___________

furtherance

of

the

failure to include

qualification

was

tantamount

of

conspirac

the "reasonab to

 

Because the government conceded error in its brie

   

we will assume arguendo that the district court's formulati ________

   

of

   

nevertheless maintains that the Pinkerton instruction did n _________

 

prejudice Bonasia.

 

court's

 

theory -- that in order to convict Bonasia the jury must fi

 

that

the

Pinkerton _________

charge

was erroneous.

The government argues

previous instruction

under an

he knew his coconspirators

The

governme

that the distri

aiding and

abetti

would use or carry firear

 

  ____________________  

13.

Bonasia objects to the following portion of the charge

     

I should also point out another principle of law which has to do with Dr. Bonasia's liability. If you find that he

                     

was a member of the conspiracy, then under the holding of the case called Pinkerton versus the United States, he is liable for all of the acts taken by the co-conspirators during the time - or starting with the time that he became a member of the conspiracy. So a member of a conspiracy is liable for all of the acts done in furtherance of the conspiracy by the other conspirators. And that has to do with this gun charge.

 

-30-

 

30

 

during the attempted robbery -- alleviated any possible har

 

The inclusion of a correct instruction directly contradicti

 

an erroneous

 

error

 

certainty which

of the

   

jury

See Francis ___ _______

   

(1985); Hill v. Maloney, ____ _______

one, however, will not

because

followed.

a

reviewing

court

necessarily rectify t cannot

determine

two irreconcilable instructions v. Franklin, 471 ________

wi t

U.S. 307, 3

927 F.2d 646, 651 (1st

Cir. 1990

 

 

Accordingly,

because we

 

instruction the

have

no way

of determining

whi

jury applied, we must instead ask whether

can affirm the conviction based on the erroneous instructio  

Essentially, Bonasia claims that the district cou

 

omitted an element in its Pinkerton instruction, and that t

 

_________

   

omission,

a fortiori, _ ________

 

necessary factual

 

the

 

omission or

law demands

precluded

finding to in order

the jury

from making

support his conviction.

to show

misdescription of

that a

an element

defendant's "substantial rights" is

t

W

district court did not affect

not entirely clear.

S

 

 

Whiting, _______

28 F.3d at 1309.

Nevertheless, even under the mo

 

rigorous harmless error standard ________ _____

 

declared

 

could

   

the omitted or misdescribed

 

491

harmless in those rare cases where no rational ju

have found what it actually did find and not also fi

U.S.

judgment).

   

suggested, an error will

263,

270-71

element.

Carella v. Californi _______ ________

(1989) (Scalia,

This is such a case.

-3131

J.,

concurring

 

 

First,

even under

required to

the contested

 

jury was

find that Bonasia

 

other defendants to rob the armored truck.

 

above,

the evidence

guilt on this

amply

issue.

jury's verdict

have noted the

between the

 

completion of the robbery of an armored truck.

 

20-21. hold

is not

a defendant

of firearms and

a case where

liable for

coconspirators that were not

t

A As s we have stat

 

This

use or carrying

conspired with

supports the

Next, we

instruction, t

strong nex

the successf See supra ___ _____

the government sought

the substantive crimes an integral part of

of

the dire

 

object of the conspiracy.

Rather, the use of firearms duri

 

and in relation to the attempted robbery of the Brink's tru

 

was part and parcel

 

Therefore, we

 

that Bonasia conspired to

 

Plaza

 

finding that the

to the object of the

find that

Shopping Center

no rational

jury could

rob the Brink's truck in

on September

use of

conspiracy itsel

10, 1991,

firearms in that

have fou the Po

without al

robbery would

reasonably foreseeable.14   ____________________          

14. During oral argument, Bonasia's counsel belatedly argu that the legal standard set forth by the district court aiding and abetting instruction was inadequate in light United States v. Torres-Maldonado, 14 F.3d 95 (1st Ci ______________ ________________ 1994), petition for cert. filed, 63 U.S.L.W. 3066 (U.S. Ju

 

         

   

________ ___ _____ _____ 6, 1994) (No. 94-93). In Torres-Maldonado, we noted tha ________________ with regard to 18 U.S.C. 924(c) convictions under an aidi and abetting theory, "[i]t is well settled . . . that accomplice `must have known to a practical certainty that t principal would be [using] a gun.'" Torres-Maldonado, ________________ F.3d at 103 (quoting United States v. Powell, 929 F.2d 72 _____________ ______

   

728 (D.C. Cir. 1991)). instructed:

 

Here, the district court specifical

   

-3232

 

DeMasi,

and Papa

incorrectly

also

 

elements of attempt.

 

"substantial

   

adopted by the

   

Sola, 713 F.2d 866, 869 (1st Cir. 1983), but instead state ____

step"

the

jury

that t

district

The

instructed

contend

 

                 

court

Martel,

district court did

instruction

which

has

on

t

not give

t

been

unifor

federal courts, see United States v. River ___ ______________ ____

One thing more is required beyond intent. And this is a fussy point. Mere preparation is not enough. There must be some act taken. You must be satisfied that the defendants or the defendant whom you are considering set himself on a path of action which, but for the intervention of the FBI, would in the ordinary course have led to the commission of the crime.

 

  ____________________          

You have to be satisfied in order to hold Dr. Bonasia liable that he had intended to participate and that he had an expectation - you must find beyond a reasonable doubt that he had an

                         

expectation that firearms would be used in carrying out the crimes, that he should have, that he would in the ordinary course have known that firearms were to be used. You don't have to be satisfied that he saw them, but you have to be satisfied that when, if he did undertake to be a part of this plan, that he understood that part of the plan was going to involve the use of firearms, having in mind that the Government's position is that the plan was to hold up the armored car and take the banks' money

 

out of it.

         

Bonasia waived prior to oral argument.

this issue by failing to raise See Sheinkopf v. Stone, 927 F. ___ _________ _____ 1259, 1263 (1st Cir. 1991) (issues raised only at or argument are waived). In any event, we are not convinc that the district court's instruction was incorrect.

   

 

-3333

At

oral

 

conceded that

 

himself on a path

argument,

the instruction

counsel

for

the

that the defendant

of action which, but for

defendan must "s

the interventi

 

 

of the

FBI, would

commission

of

in

the

the ordinary

crime"

course have

actually set

 

standard than

provided by a "substantial

 

Nonetheless,

defendants'

 

preceding

sentence

("There

must

 

permitted

the jury

to

find

the

substantially

less

than

standard

substantial

step

counsel

instruction.

forth

led to a

step" instructio

maintained be

narro

some

defendants that

act

t

taken.

guilty

called

Defendants'

that

for

on in

argument

baseless. When the context,  

district court's

as set forth above,

instruction is

it is fully

read

apparent that t

challenged statement was qualified by the subsequent "path action" language.

 

just any act

 

the defendants

Plainly, the jury was instructed that n

taken but only those

acts that would have

on the "path of action" inevitably leading

the commission commission of the crime wo would uld the charge of

 

"path

 

than

 

district court's variance from the usual instruction.

 

   

attempt.

be suf sufficient ficient to esta establi bli

 

 

s

of action"

language established

that required

DeMasi, district court led

Because defendants concede

by

law, they

Martel, and

were

Papa

that t

a narrower

standa

not harmed

also contend

by

t

that

t

the jury through a progression of logic

-3434

 

 

steps

to

 

Primarily,

 

which the attempt

the

inevitable

result

defendants assert that district court

against the implied

a

guilty

suggested would not

an

verdic

by juxtaposing a scenar

facts of the that

of

case, the

attempt

constitute district cou

 

strongly

 

Defendants maintain further that the district court continu

 

the

 

an

progression by stating later attempt being

occurred.

that "it's hard to imagi

accomplished without

conspiracy, without

there

 

defendants complain

that the district

 

error when

it opined that

had

being an

there having

agreement."

been

Finall

court compounded

"[f]our guys

end up in

a truc

  ____________________                                

15.

The contested section of the charge is as follows: Now, as I say, mere preparation is not enough. This evidence of surveilling would not have been enough. I would suppose that, let's say on September 10th they got opposite the McDonald's and they said, ["]gee, its hot in this truck and all these things I'm wearing are very uncomfortable and sticky. Let's quit the whole thing and go into McDonald's and get a milk shake.["] At that point, the progress would have stopped. And I suggest to you it probably would not have been close enough to be an attempt. It was not stopped by the FBI if they stopped themselves. But then you can

t

 

               

consider from all of the evidence you have heard about the passage of the truck, where the Brink[']s truck, in the ordinary course, would have been, whether they had set themselves on a path of action which, but for the intervention of the FBI, would in the ordinary course have led to the commission of the crime. -35-

 

35

 

common

sense sense would tell you that

 

agreement to be there." Once

again,

th there ere had to be some pri

because

defendants

made

contemporaneous objection to this portion of the jury char  

we engage only

in a plain error

none.

 

F.2d

165,

 

instructions

 

progression" are forbidden.

 

in Spock, however, was the submission of a special verdict _____

 

the jury

180-83

(1st

that

in a

on United States _____________

again,

find

 

Defendants rely

review, and once

Cir.

present

purport

to

the

criminal trial.

instruct

the

We

where

jury

What was

special verdict was us used ed here.  

1969),

v. Spock, 4 _____ we

with

held a

t

"logic

particularly offensi

initially note

that

Moreover, because they d do o n

jury

on

the

intent

element

 

 

attempt, we

do not believe that

 

led the jury to the inevitable conclusion that an attempt occurred.

Indeed,

instructions, the

in

district

 

jury on the element

 

issue at trial, stating

 

of offense.

F For or an

intent. .

preceding

court carefully

paragraph instructed

of intent, which was the

. .

that:

"Attempt is a

t

most contest different ty

attem attempt pt there has to be the intent to

the illegal act. . . . find

the

the challenged instructio

In the attempt si situation, tuation, yo you u have And

again, you

reasonable doubt."

be satisfi

 

beyond a

 

paragraph that included the challenged illustration with

   

Finally,

have to

the court

ended t t

-3636

   

reminder, "All right.

 

(Emphasis added.)

 

In sum,

So there are two elements of attempt ___ ________ __ ______

we are

not persuaded that

the challen

 

instruction created a logical progression that inevitably l

 

the jury to a guilty verdict.16

 

 

Finally,

all

four

 

isolated

 

assumed controverted material facts

 

defendants jury.17

               

                                       

 

statements which

defendants

of

their

Though

it

they

contend

challenge were

vario

prejudicia

as true and deprived t

Sixth

Amendment

might

have

been

right

to

trial

preferable

if

t

____________________ 16. We also rule that neither of two additional statemen that DeMasi, Martel, and Papa contend buttress their logic progression argument constitute plain error. Even if assume that the statements prejudiced the defendants to so degree, we note that the evidence with respect to DeMas Martel, and Papa was overwhelming. There is no chance t innocent defendants were convicted as a result of t challenged statements. Accordingly, no miscarriage justice occurred. 17. First, DeMasi, Martel, and Papa contest the distri court's following comment on the evidence: "But you do ha some things about which there are no mistakes, the mo significant being that four of these defendants were found the truck with guns." Bonasia makes a similar complai about the reference to "robbing from a bank, and you evidence about that." DeMasi, Martel, and Papa also obje to the following statement made by the court whi elaborating on the action element of the crime of attemp "Now as I say, mere preparation is not enough. This eviden _____ of surveilling would not have been enough." They furt ______________ find offensive the court's reference to "this attempt robbery" which it made while instructing on the 18 U.S.C. 924(c) firearm charges. In addition, DeMasi, Martel, a Papa challenge a comment the court made while explaining t aiding and abetting theory on which Bonasia was charged: " himself did not -- was not in the truck. He did not make t ________________ attempt. But But he is charged with being an aider and abettor _______ Lastly, Bonasia challenges the comment: "Four guys end up -3737

 

 

statements had not been made, we cannot say that

 

so infected the entire charge to the jury as to undermine t

 

fairness of the trial.

 

In

analyzing

statements,

the we

prejudicial note

that

any of t

effect

challenged

 

cautiously admonished

 

evidence,

it's

 

governs."

The challenged statements, though problematic, a

 

isolated snippets culled from

 

cautious, careful,

 

statements were inadvertent slips

   

prejudicial force.

 

F.2d

my memory

only.

district

t

 

the jury that

the

of

"when I talk It's

your

cou

about t

memory

t

over thirty pages of general

and correct

instructions.

At

most, t

of the tongue with limit

See United States v. Lebron-Gonzalez, 8 ___ _____________ _______________

823, 830 (1st Cir.)

not supplant jury as

(no plain error

because judge

fact finder as a result

   

slip of tongue in

   

and cert. denied 484 U.S. 857 (1987).

of inadverte

jury charge), cert. denied, 484 _____ ______

U.S. 84

___ _____ ______  

Moreover, as

we have noted,

and Papa was

the evidence

 

DeMasi, Martel

 

that, with respect to Bonasia, the evidence was likewise mo

 

than sufficient.

We

have

overwhelming.

no

fear

that

We

again

further no

the

challen

 

 

statements

caused

the

conviction of

 

After carefully

 

no miscarriage of justice occurred.

innocent

reviewing the record, we

defendant

are confident t

____________________  

a truck, common sense would tell you that some prior agreement to be there."

   

there had to

-3838

   

4.

 

Bonasia makes two final arguments.

 

contends

 

what

that in

certain FBI

him.  

Other Matters _____________

rebuttal the

characterization contemporaneous

prosecution mischaracteriz

surveillance logs

Nonetheless, at

Bonasia

stated with

failed

trial.

objection,

First, Bonas

"In we

to the

review

respect

object

to

absence

t of

allegations

prosecutorial misconduct for plain error, and will overturn jury

verdict only

poisoned

the well

affected."  

if the that it

government's closing is likely

that the

United States v. Tuesta-Toro, _____________ ___________

argument verdict

No. 93-2182, sl

 

 

op.

at 12 (July 25, 1994) (internal quotations omitted).

are confident  

that there is no likelihood

that the isolat

statement affected the outcome of the trial.

 

Finally,

Bonasia

maintains

that,

if

n

 

individually, the cumulative effect of the various complain

 

he raises deprived

 

found that none

 

in substantial prejudice and that most are completely witho

 

merit, we reject the final contention that his conviction tainted by

him of

a fair

trial.

of Bonasia's individual

cumulative error.

 

See ___

Because we

complaints result

id. (rejecting cumulati ___

   

error argument); see also United States v. Barnett, 989 ___ ____ _____________ _______

 

546, 560

 

defendant to

(1st Cir.)

("The Constitution entitles

a fair trial,

   

ha

not a perfect

F.

a crimin

one." (quotatio

-3939

   

omitted)), cert. denied, _____ ______

 

114 S. Ct. 149 (1993).

114 S. Ct.

148, and cert. ___ _____

denie ____

 

   

C. Alleged Post-Trial Errors _____________________________

 

On

cross-appeal,

to

the

 

objections

 

court.

 

offense reduction awarded Bonasia

 

of

The

the sentencing

of

government Bonasia

government challenges

twenty-nine months granted

charitable work

both

raises

by the the

t

distri

role-in-t

and the downward departu

him because of

and community service.

his record

We discuss

each

turn.18    

A sentencing court's the-offense reduction

decision to award

"is heavily dependent on

the particular case," U.S.S.G. we review these

3B1.2, comment.

a role-i

the facts (backg'd.

 

Accordingly,

fact-bound determinations on

   

for clear error.

United States v. Ocasio, 914 F.2d _____________ ______

330, 3

 

(1st Cir. 1990).

In reviewing decisions to depart

from t

 

Sentencing

Guidelines, our review

is broader.

In a thre

  ____________________  

                           

18. DeMasi, Martel, and Papa also appeal the calculation their sentences, contending that the district court erred finding the value of the intended loss for sentenci purposes. The district court's determination was a factu finding which we review only for clear error. 18 U.S.C. 3742(e). The district court found the value of the inten loss to be $400,000, which was the lowest of thr alternatives presented in the Presentence Report. Defendan argue that a fourth scenario existed where the intended lo would have been only $24,000. After reviewing the recor however, we cannot say the district court's finding was cle error. See United States v. Morillo, 8 F.3d 864, 871 (1 ___ ______________ _______ Cir. 1993) ("Where . . . evidence fully supports more t one inference, a sentencing court's choice from amo plausible alternatives cannot be clearly erroneous."). -4040

 

 

step analysis, we examine "(1) whether

the reasons the cou

 

gave

that might

for departing

departure  

in an

supports a

are

of the

appropriate

finding of

sort

case; (2)

whether the

facts demonstrating the

such reasons; reasons; and (3) whether,

permit reco

existence

given the rea reasons, sons, t the he degr

   

of departure is reasonable."

 

15 F.3d 188, 189 (1st Cir. 1994).

 

prong of the analysis, we generally review a district court

 

determination that departure

"with

trier's

superior

   

Rivera, ______

994

 

quotations

 

F.3d 11, 14

 

however, we do not

 

the

 

interpretation applied.

feel for

F.2d

942,

omitted); see ___ (1st Cir.

turns

Wi With th respect

to the fir

a case is unusual and therefore worthy

full awareness

 

issue

United States v. Mendez-Colo _____________ __________

the

952

of,

and

case."

(1st

Cir.

respect for, United States _____________ 1993)

also United States v. ____ ______________

1994).

In

purely legal

or whether

the

(intern

Pelkey, ______

conducting this

owe deference to the district on

questions

correct legal

See Rivera, 994 F.2d at 950-52.

t

of

inquir

court w guideli

standard

 

 

___ ______

 

Turning to the government's first argument, we no

 

that

the

district

 

participation in

 

and a

   

in

 

reductions

 

participants in

court

determined

the attempted robbery fell

minimal role, thus warranting

his base offense level. in

that

base the

criminal

   

between a min

a three-level reducti

See U.S.S.G. ___

offense

Bonasia

level

3B1.2 (granti

to

less

activity).

The

culpab governme

-4141

 

maintains,

 

based this determination on the fact that Bonasia's role as lookout

however,

was

less

codefendants

and

district

reprehensible not

because

determination to be clearly erroneous.

 

reduction

by

 

defendant

must

can

fulfilling convince

find

receive

court impermissib

the

conduct

 

defendant

not

his

culpability.

A

do

than

 

 

We

that the

the

a

roles

of

evinced

district

le

court

role-in-the-offen

two

requirements.

the

sentencing

court

First,

t

that

t

 

 

defendant was less culpable than most the

criminal activity.

   

3);

United States v. Gregorio, _____________ ________

 

1992).

 

to

   

"average person" who commits the same offense.

   

F.2d

 

the record reasonably supports the district court's

 

to

 

plausibly

 

(including, for example, the

 

one

 

Bonasia

 

particular

 

find

that

   

the

956 F.2d 341,

defendant was

at 344; cf. U.S.S.G. ___

grant

of

3B1.2, comment. (n.

Second, the sentencing court must

inferred

the

from

played

a

limited

convicted of the aid

also be persua

culpable

than

of

t

Gregorio, 9 ________

the

He

decisi

the district

totality

cou

eviden

fact that Bonasia attended on

surveillance

offense, but

344 (1st Ci

3B1.2, comment. (backg'd).

Specifically,

the Tuesday

banks with

less

a reduction.

individuals  

See U.S.S.G. ___

of the participants

part

meetings) in

also that, conspiring

of firearms,

-4242

the

not only

planning

within the

t

of t

universe

and attempting

Bonasia was less

to r

invol

 

 

(and,

hence,

 

therefore, that

 

clear error.

   

less

The district

the

culpable)

erred

in

twenty-nine months in the The government

 

of

 

service,

 

typical

 

comparable

 

government on this issue.

the bank

next

contention

making a

court

of

records

and

of

n

that

t

departure

not

good

to

other

works.

to depart becau

work

compared

Before a sentencing court  

is

downward

charitable

improperly

robber"

belie

determination is

complains that in deciding history

We

calculation of Bonasia's sentenc

 

Bonasia's

most.

district court's

government's

court

than

We

and

communi

Bonasia

to

"t

defendants

wi

agree

with

t

may depart in a specif

case, it must ask:

                         

1) What features of this case, potentially, take it outside the Guidelines' "heartland" and make of it a special, or unusual, case? 2) Has the [Sentencing] Commission forbidden departures based on those features? 3) If not, has the [Sentencing] Commission encouraged departures based on those features? 4) If not, has the [Sentencing] Commission discouraged departures based on those features?

   

Rivera, ______

994

F.2d at

 

varies

 

justifying departure falls.

depending

on

949.

the

A

court's

category

in

subsequent analys

which

the

featu

 

   

-4343

 

If the

feature or reason for

 

the discouraged

 

(no matter

 

not

   

"heartland."

 

philosophy underlying the Guidelines dictates that whether

by

category, the

departure falls in

how unusual that

itself

take

Id. ___

the

at

not these features are

mere presence of

mere presence might case

948.

outside

This

is

the

true

present in a case is

determining

the featu

a defendant's

seem) wi Guideline

because

t

"not ordinari

 

relevant" in

 

discouraged-feature

 

"nature and

   

or special.

 

ask "whether the case differs from the ordinary case in whi

   

those [discouraged]

departure

is

warranted

magnitude" of the feature's Id. ___

To

sentence.

only

features are present."

v. Jackson, _______

     

1994); United States v. _____________

if

t

presence is unusu

make this determination, a

also United States ____ _____________

Id. ___

Id. ___

30 F.3d 199,

court mu

at 949; s

202 (1st

Sclamo, 997 F.2d 970, 973 ______

Ci

(1st Ci

 

1993).

Moreover, before

a

court may

lawfully

decide

 

depart, "it

 

cases where the [discouraged] reason is present) is special

   

Rivera, 994 F.2d at ______

 

Sclamo, 997 F. 2d at 973. ______

 

 

must

explain how

Whether or

the case

(compared to

951; see also Jackson, ___ ____ _______

not departure for a

ot

30 F.3d at

20

certain feature

discouraged turns, of course, on a reading of the Guideline  

Specifically, the Sentencing Guidelines provide

 

charitable, or public service,

 

works are

not ordinarily

that "civi

. . . and similar

prior go

relevant in determining

whether

-4444

 

 

sentence should be

 

U.S.S.G.

 

of

 

discouraged-feature category of justifications for departur

 

See Rivera, 994 F.2d at 948. ___ ______

 

outside the applicable guideline

5H1.11, p.s.19

charitable

work and

In the

Therefore, a

community

present case,

range

defendant's reco

service

falls into

the district court

t

chose

depart from the Guidelines

because Bonasia s charitable wo

 

 

and community service stood apart from what

one would expe

 

of

however, did n

 

compare Bonasia's history of charitable and community servi

 

to the histories of defendants from other cases who similar

"the typical bank robber."

The court,

  ____________________        

                                                     

19. The fact that 5H1.11 was not promulgated unt November 1, 1991, after the offense conduct but before t sentencing in this case, does not make it irrelevant to t present issue. The district court must use, subject to post facto concerns, the Guidelines that are in effect on t ____ _____ date of sentencing. 18 U.S.C. 3553(a)(4). Moreover, U.S.C. 994(e) reveals Congress's intention t consideration of factors such as "employment record, fami ties and responsibilities, and community ties" are general _________ ____ inappropriate in sentencing decisions. Hence, the enactme of 5H1.11 merely clarified the Guidelines and did not ma a substantive change. Cf. Isabel v. United States, 980 F. ___ ______ _____________ 60, 62-63 (1st Cir. 1992) (clarifications of the Guidelin may be applied retroactively, substantive changes may not but see United States v. O'Brien, 18 F.3d 301, 302 (5th Ci ___ ___ _____________ _______ 1994) (eschewing reliance on 5H1.11 due to ex post fac __ ____ __ concerns, nonetheless vacating departure because defendant charitable work and community service were products defendant's professional record and professional skill which are discouraged factors under 5H1.2 (vocation skills) and 5H1.5 (employment record)), petition for cer ________ ___ __ filed, 63 U.S.L.W. 3092 (U.S. July 18, 1994) (No. 94-159 _____ In any event, Bonasia did not challenge the use of 5H1. in the court below and, therefore, has waived any challen to its applicability in his case. -4545

 

 

had commendable community service

 

that:

records.

The court stat

If this was a securities fraud case or bank fraud case, probably the downward departure would not be appropriate. Because presumably people of the sort that Dr. Bonasia is [i.e., individuals who have a past record of charitable work and community service] are likely to engage in those activities and be within the contemplation of the Sentencing Commission.

                 

In so did

not

stating, the court at least

consider Bonasia's

good

works

implied that

to be

unusual

exceptional if compared to other defendants with past recor  

of

commendable

service.

Moreover,

the

court

erred

restricting the sc scope ope of its c comparison omparison to

only bank ro robbe bbe

 

cases.

cases

 

discouraged factor is

 

to

 

whether

   

See ___

 

discouraged factor might be warranted after comparing case

cases

court

should

the defendant's

cases

underlying

survey

those

present, without limiting

involving the

Rivera, 994 ______

other    

A

F.2d

involving

same

offense,

record stands

at 953-54

the

crime); Jackson, _______

and

regard

202-03

a

the cro

(suggesting departure

F.3d at

t

its inqui

only then

out from

factor without 30

where

to

f

t

(reversi

 

 

decision to

depart based

 

comparing

 

irrespective of

   

Haversat, ________

22 F.3d

790,

 

departure

because

defendant's

facts

of

on discouraged factor

case

to

other

cases

underlying crime); but cf. ___ ___ 795-96 (8th

   

[age] aft

involving

a

United States _____________

Cir. 1994)

charitable

and

(reversi

volunte

-4646

 

activities were not atypical for a

 

price-fixing case). In sum,

defendant in an antitru

the district court erred

when it declin

 

to compare Bonasia's record

 

service to other cases where defendants similarly had recor

 

of

 

reconsideration

 

standard.20

past community of

of charitable work and communi

service. this

We

issue

therefore must under

     

III. III. ____

     

Conclusion Conclusion __________

the

remand f

proper

le

 

   

For

reasons

district court on all however,

 

the

vacate

stated

above,

we

affirm

t

issues raised by the defendants.

Bonasia's

sentence

and

remand

f

resentencing.

  ____________________      

   

20. We do not offer any opinion on whether Bonasia's reco of charitable work and community service warrants departu given the proper comparison. We leave this determination the discretion of the district court. -4747

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