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