United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________
UNITED STATES, Appellee,
RALPH DE MASI, Defendant, Appellant.
UNITED STATES, Appellee,
RONALD MARTEL, Defendant, Appellant.
UNITED STATES, Appellee,
ROBERT PAPA, Defendant, Appellant.
UNITED STATES, Appellee,
FRANCIS BONASIA, Defendant, Appellant.
UNITED STATES, Appellant,
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] __________________________
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 _______________
FBI had probable cause to make the arrests and that, if the
the time of
evidence were also lawful.
evidence seized from
They maintain that probab
arrests, when the
that the government should have procured an arrest warrant that
Defendants contend, however, t
effected them without a wa warrant. rrant. arose
FBI identified the
green van that
Martel had visited as bearing stolen license plates, a
seizure of evidence.
ultimate failure to of
obtain a warrant
government negates t
Defendants' argument rests on the
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 _____ ______
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
fact that the government had to procure one.
ample ti See Unit ___ ___
that "[t]he necessary inquiry
. . .
wheth whether er there was time
get one, but whether there was probable cause" at the time the arrest.
the government in
a warrant prior to the arrest.
probable cause arose
the Supreme Court has
(as much as
Wats ___ to ha
Id. at 414; id. ___ ___ six days
and the arrest).
directly rejected the underpinnings
Moreover, law enforcement agents need only possess reasonab
suspicion that a criminal stop a moving
activity is occurring in order
automobile to investigate.
undisputed that the FBI agents had probable cause to stop t
it entered the
arrests of DeMasi, Martel,
United States _____________
and Papa were
public place, the midd middle le of the s shopping hopping center
arrest warrant was required,
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
his motions for severance.
United States v. _____________
Pierro, No. 93-1313, slip o ______
at 8 (1st Cir. July deny a motion
"We reverse the
only upon a
prejudice, demonstrating a manifest abuse of discretion
(quotations omitted), cert. denied, 498 U.S. 849 (1990). _____ ______
the defendant of a
United States _____________ d denied, enied, 114 ______
just a better chance of acquittal at a separate trial
spillover effect from evidence the
maintains that severance
admitted at trial against
representation, and the impact resulting when several membe
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
of showing substantial prejudice. substantial evidence
only indirectly, this factor alone
he has n Though trial dea
defendant, or where one defendant's involvement in an overa
court of appeals must be `reluctant to second guess severan
convincingly complain of an
grounds for reversal. large
is far less
Bonasia, like his
Boylan, 898 ______
of others,' t
v. O'Bryant, 998 F.2d 21, ________
evidence featuring against
settled that `[e]
than the involvement
United States _____________
"It is well
does not amou
improper spillover effect."
codefendants, was charged with
attempting to rob the armored Brink's truck.
if the government had tried Bonasia separately, nearly all the evidence presented here separate
would have been admissible in to
obtain exculpatory testimony and
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).
conspiracy and the attempted robbery. not met
representation is equally without
DeMasi's pro se ___ __
Person v. Miller, 854 F.2d 656, 665-66 (4th Cir. 1988), cer ______ ______ __
pro se ___ __
a defendant resulted
States v. Tracy, 12
F.3d 1186, 1194
(2d Cir. 1993
denied, 498 ______
also United States ____ ______________
pro ___ (1991), a
denied, 112 ______
points us to no
specific prejudicial incidents that occurr
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
on this ground.
the district court should
because the jury viewed
in handcuffs is similarly unavailing.
the eleventh day of into the
have granted severan
his codefendants enter the courtro This incident occurr
trial, when the
jury was mistaken
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
carefully cautioned each juror not to discuss the questioni
or anything he or she had
whether each had either seen
discretion in denying Bonasia's
defendant in shackles).
court therefore did not abuse
renewed severance motion
Cf. United States v. Pina, 844 F.2d 1, ___ ______________ ____
notice noticed d with the other jurors.
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.
B. Alleged Trial Errors ________________________
Evidentiary Ruling __________________
Bonasia testimony from
an FBI agent who
observed binoculars prese
on the front seat of Bonasia's gray Buick following Bonasia
admitted because all evidence
any evidence trial.
that the testimony
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
to admit evidence for abuse of discretion.
See, e.g., Unit ___ ____ ___
v. Fisher, ______ order
result" of the illegal searches of Bonasia's automobile.
order, however, did not and could not extend to evidence t
from the illegal searches.
that "[i]f an article
See Murray ___ ______
v. United States, _____________
536-41 (1988) (explaining independent source doctrine the
automobile which either
v. California, 496 __________
is already in plain view,
On this point, it is beyond dou
may be viewed
U.S. 128, 133
from outside the
Texas v. Brown, 460 U.S. _____ _____
730, 740 (1983) (plurality opinio
(citation omitted); see also United States v. Ware, ___ ____ _____________ ____
1000 (7th Cir. 1990); Brumfield v. Jones, 849 F.2d 15
155 (5th Cir. 1988).
binoculars participated Bonasia's
in neither the
automobile nor Bonasia's
the arrest, the agent was legitimately present in the parki
independent legal source apart
which were in "plain
Bonasia's automobil to
view" on the agent's
from the illegal searches a
was properly admitted.8
Sufficiency of Evidence _______________________
We now of
turn to the
the defendants' challenges
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
U.S.L.W. 3066 (U.S. June 6, 1994) (No. 94-93). The clearly
678), petition ________
jury's finding the
and his August 26, 1991, nighttime visit to t
for cert. ___ _____
Bonasia's presence at the September 3, 199
plausibly support the
visits over the
course of the
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"
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
September 10, 1991, go well beyond mere presence.
at the parking
entered the Port
than an hour
of the Brink's truck and met with DeMasi and Marte agent testified
Plaza parking lot,
pacing back and forth watching
the area, tellingly ga
the van in which the agent was riding a "very
Bonasia acted as a lookout during the attempted robbery.
participation is further corroborated
Bonasia's gray Buick and pulled to a momentary stop alongsi
heading to where the Brink's truck was to make i
defendants in view
the parking lot,
by the fact that, up
Papa drove the
the green van
the area where they
green van towar
temporarily had been
would encounter the Brink's truc
This underscores their need for a lookout. sufficient
In sum, there
voluntarily and intentionally joined the conspiracy, and t
he performed a substantial step towards the completion of t
evidence on the related firearm 924(c).
the jury jury under
convictions under 18 U.S.C submitted
an aid aiding ing and abetting theory, which requir
Maldonado, 14 _________
a practical certainty
government to would
that the principal
gun'" (quoting United States v. Powell, ______________ ______
724, 728 (D.C. Cir. 1991)).
abetting theory "accomplice
would 929 F.
Bonasia contends that the reco
be using or carrying
firearms during t
attempted robbery. As
out that these charges were
adequately supports a finding
that Bonasia join
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
State Troopers testified that Bonasia remained in the parki
on September 3, 1991, and observed the Brink's truck f
entirety of its scheduled
jury could conclude that Bonasia understood the scope of w
Echeverri, 982 F.2d at 679; see also United Stat _________ ___ ____ __________
to rob the most, the
need detain contend
us only briefly. that
establish that they had
government proved only
the specific inte maintain that,
that they were
the rear of the green van in the Port Plaza
parking lot wi
submission after oral
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.
evidence was introduced at trial whi
carefully observed the scheduled stop of the Brink's truck each
establish that of them
September 3, 1991,
at least one
defendan present a
DeMasi, Martel, and
Papa waited for
then followed a Brink's truck as it made one of its schedul
stops prior to reaching the Port Plaza Shopping Center.
___ U.S.L.W. ___ (U.S. Aug. 23, 1994) (No. 94-5760).
Fed. Fed. R. Crim. P. 30, 52(b); United States v. Whitin _____________ _____
charge in which the district court gave instructions
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. __________________
should utilize the experience and skills it had attained fr
"you try to make a judgment
a about bout who is giving the
government's burden of proof.
court explained that in rendering these assessmen
close the of 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
Louisiana, 113 S. _________
finding of guilt beyond a reasonable
a structural subject
error of constitutional magnitude a
Ct. 2078, 2082 (1993).
a part of the
mosaic making up
Sullivan ________ also tru
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.
be established beyond a reasonable doubt."
United States _____________
allow conviction based on proof insufficie
instructions, we measure each instruction,
not in isolatio
States v. Akinola, 985 F.2d 1105, 1112 (1st Cir. 1993). ______ _______
meet the Winship standard." _______ 1239,
within the context
Victor v. ______
Nebraska, 114 ________ reviewing
challenged instructions do not endeavor to s
of proof (which
described); instead, they guide considering
court has attempted to define reasonable doubt by analogizi
Nickens, 955 F.2d 112, 119-120 (1st _______
Cir.), cert. denied, 437 U.S. 910 (1978). _____ ______
accurately set forth the proper standard for the government
burden of proof
of the instructions reveals
twelve times in the nine pages of jury instructions precedi
contested statements were misconstrued by the jury as some
reducing the government's burden of proof.
in other sections of the charge.
that the district court referr
See United Stat
Glenn, 828 F.2d 855, _____
861 (1st Cir.
1987) (no reversib
innocence and government's burden).
Defendants, as time
noted, also raise
court's jury instructions.
permitted jury to convict a conspirator for a coconspirator
Bonasia argues that the distri improper "Pinkerton" _________
Bonasia's liability by his
the substantive See Pinkerton ___ _________
were committed in furtherance
v. Unit ___
of the conspiracy
DeMasi, Martel, and Papa claim that
the district court err
logical progression of steps
that inevitably l
maintain, were prejudicial, assumed various material facts
to various isolated statements which, t
true, and deprived them
of their Sixth Amendment right
a few of the instructions problematic,
individually or collectively, they rise to the level of pla
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
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
United States v. ______________
(1993); Whiting, 28
has affected "substanti
Olano, 113 S. _____
F.3d at 1308.
In most cases,
_______ will be found to have "affect[ed] substantial rights" only inter _____
alia the ____
on the outcome
of the trial.
Olano, 113 _____
Even then, our review is discretionary.
substantial rights does
more," warrant the exercise of this discretion.
Id. at 177 ___
to cases where the failure to act would result
sentencing of an actually innocent defendant."
that they seriously affect the fundamental fairne
United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st Ci
(1st Cir.), cert. denied, 484 U.S. 844 (1987)). _____ ______
_____________ United States _____________
v. Griffin, _______
district court's inclusion of an allegedly improper Pinkert ______
____________________ what defendants were trying to do in this case. __ ____ ____
instruction.13 the court's
limit liability under
those reasonably __________
the Pinkert ______
verdict in favor of the government on the 18 U.S.C.
foreseeable acts ___________
failure to include
the "reasonab to
Because the government conceded error in its brie
we will assume arguendo that the district court's formulati ________
nevertheless maintains that the Pinkerton instruction did n _________
theory -- that in order to convict Bonasia the jury must fi
The government argues
he knew his coconspirators
that the distri
would use or carry firear
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.
during the attempted robbery -- alleviated any possible har
The inclusion of a correct instruction directly contradicti
See Francis ___ _______
(1985); Hill v. Maloney, ____ _______
one, however, will not
necessarily rectify t cannot
two irreconcilable instructions v. Franklin, 471 ________
U.S. 307, 3
927 F.2d 646, 651 (1st
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
a fortiori, _ ________
finding to in order
support his conviction.
defendant's "substantial rights" is
district court did not affect
not entirely clear.
28 F.3d at 1309.
Nevertheless, even under the mo
rigorous harmless error standard ________ _____
the omitted or misdescribed
harmless in those rare cases where no rational ju
have found what it actually did find and not also fi
suggested, an error will
Carella v. Californi _______ ________
This is such a case.
find that Bonasia
other defendants to rob the armored truck.
guilt on this
have noted the
completion of the robbery of an armored truck.
of firearms and
a case where
coconspirators that were not
A As s we have stat
use or carrying
the successf See supra ___ _____
the government sought
the substantive crimes an integral part of
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
that Bonasia conspired to
finding that the
to the object of the
rob the Brink's truck in
firearms in that
have fou the Po
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
elements of attempt.
adopted by the
Sola, 713 F.2d 866, 869 (1st Cir. 1983), but instead state ____
district court did
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.
himself on a path
that the defendant
of action which, but for
defendan must "s
provided by a "substantial
led to a
baseless. When the context,
as set forth above,
it is fully
apparent that t
challenged statement was qualified by the subsequent "path action" language.
just any act
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
district court's variance from the usual instruction.
be suf sufficient ficient to esta establi bli
DeMasi, district court led
Because defendants concede
the jury through a progression of logic
which the attempt
defendants assert that district court
against the implied
suggested would not
by juxtaposing a scenar
facts of the that
constitute district cou
Defendants maintain further that the district court continu
progression by stating later attempt being
that "it's hard to imagi
that the district
it opined that
end up in
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
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-
sense sense would tell you that
agreement to be there." Once
th there ere had to be some pri
contemporaneous objection to this portion of the jury char
we engage only
in a plain error
progression" are forbidden.
in Spock, however, was the submission of a special verdict _____
on United States _____________
review, and once
special verdict was us used ed here.
v. Spock, 4 _____ we
Moreover, because they d do o n
do not believe that
led the jury to the inevitable conclusion that an attempt occurred.
jury on the element
issue at trial, stating
F For or an
of intent, which was the
"Attempt is a
most contest different ty
attem attempt pt there has to be the intent to
the illegal act. . . . find
the challenged instructio
In the attempt si situation, tuation, yo you u have And
paragraph that included the challenged illustration with
ended t t
reminder, "All right.
So there are two elements of attempt ___ ________ __ ______
not persuaded that
instruction created a logical progression that inevitably l
the jury to a guilty verdict.16
assumed controverted material facts
as true and deprived 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.
any of t
The challenged statements, though problematic, a
isolated snippets culled from
statements were inadvertent slips
the jury that
"when I talk It's
over thirty pages of general
of the tongue with limit
See United States v. Lebron-Gonzalez, 8 ___ _____________ _______________
823, 830 (1st Cir.)
not supplant jury as
(no plain error
fact finder as a result
slip of tongue in
and cert. denied 484 U.S. 857 (1987).
jury charge), cert. denied, 484 _____ ______
___ _____ ______
we have noted,
and Papa was
that, with respect to Bonasia, the evidence was likewise mo
no miscarriage of justice occurred.
reviewing the record, we
are confident t
a truck, common sense would tell you that some prior agreement to be there."
there had to
Bonasia makes two final arguments.
Other Matters _____________
prosecutorial misconduct for plain error, and will overturn jury
if the that it
government's closing is likely
United States v. Tuesta-Toro, _____________ ___________
No. 93-2182, sl
at 12 (July 25, 1994) (internal quotations omitted).
that there is no likelihood
that the isolat
statement affected the outcome of the trial.
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
of Bonasia's individual
id. (rejecting cumulati ___
error argument); see also United States v. Barnett, 989 ___ ____ _____________ _______
("The Constitution entitles
a fair trial,
not a perfect
omitted)), cert. denied, _____ ______
114 S. Ct. 149 (1993).
114 S. Ct.
148, and cert. ___ _____
C. Alleged Post-Trial Errors _____________________________
offense reduction awarded Bonasia
twenty-nine months granted
by the the
and the downward departu
him because of
and community service.
A sentencing court's the-offense reduction
decision to award
"is heavily dependent on
the particular case," U.S.S.G. we review these
the facts (backg'd.
fact-bound determinations on
for clear error.
United States v. Ocasio, 914 F.2d _____________ ______
(1st Cir. 1990).
In reviewing decisions to depart
Guidelines, our review
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
facts demonstrating the
such reasons; reasons; and (3) whether,
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
F.3d 11, 14
however, we do not
omitted); see ___ (1st Cir.
Wi With th respect
to the fir
a case is unusual and therefore worthy
United States v. Mendez-Colo _____________ __________
respect for, United States _____________ 1993)
also United States v. ____ ______________
owe deference to the district on
See Rivera, 994 F.2d at 950-52.
court w guideli
Turning to the government's first argument, we no
the attempted robbery fell
minimal role, thus warranting
his base offense level. in
between a min
a three-level reducti
See U.S.S.G. ___
based this determination on the fact that Bonasia's role as lookout
determination to be clearly erroneous.
defendant was less culpable than most the
United States v. Gregorio, _____________ ________
"average person" who commits the same offense.
the record reasonably supports the district court's
(including, for example, the
956 F.2d 341,
at 344; cf. U.S.S.G. ___
3B1.2, comment. (n.
Second, the sentencing court must
convicted of the aid
also be persua
Gregorio, 9 ________
fact that Bonasia attended on
344 (1st Ci
3B1.2, comment. (backg'd).
See U.S.S.G. ___
of the participants
also that, conspiring
Bonasia was less
twenty-nine months in the The government
government on this issue.
to depart becau
Before a sentencing court
complains that in deciding history
calculation of Bonasia's sentenc
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?
justifying departure falls.
feature or reason for
philosophy underlying the Guidelines dictates that whether
departure falls in
how unusual that
not these features are
mere presence of
mere presence might case
present in a case is
seem) wi Guideline
ask "whether the case differs from the ordinary case in whi
magnitude" of the feature's Id. ___
features are present."
v. Jackson, _______
1994); United States v. _____________
presence is unusu
make this determination, a
also United States ____ _____________
30 F.3d 199,
at 949; s
Sclamo, 997 F.2d 970, 973 ______
cases where the [discouraged] reason is present) is special
Rivera, 994 F.2d at ______
Sclamo, 997 F. 2d at 973. ______
951; see also Jackson, ___ ____ _______
not departure for a
30 F.3d at
discouraged turns, of course, on a reading of the Guideline
Specifically, the Sentencing Guidelines provide
charitable, or public service,
. . . and similar
relevant in determining
sentence should be
discouraged-feature category of justifications for departur
See Rivera, 994 F.2d at 948. ___ ______
outside the applicable guideline
the district court
depart from the Guidelines
because Bonasia s charitable wo
and community service stood apart from what
one would expe
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."
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
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
stating, the court at least
exceptional if compared to other defendants with past recor
restricting the sc scope ope of its c comparison omparison to
only bank ro robbe bbe
discouraged factor is
discouraged factor might be warranted after comparing case
present, without limiting
Rivera, 994 ______
crime); Jackson, _______
factor without 30
on discouraged factor
underlying crime); but cf. ___ ___ 795-96 (8th
United States _____________
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
past community of
of charitable work and communi
therefore must under
III. III. ____
Conclusion Conclusion __________
district court on all however,
issues raised by the defendants.
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