March 26, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1358
UNITED STATES Appellee,
v.
GEORGE CHAPDELAINE, Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on March 25, 1993, is amended as follows:
On page 5, line 8 of first full paragraph: replace " 1" with " 2113(a)".
On page 5, line 10 of first full paragraph: insert "a" between "transporting and "stolen" and delete the "s" in "vehicles".
On page 7, line 3 of first full paragraph: capitalize the "c" in "1st cir."
On page 8, line 3: replace "37" with "39".
March 25, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1358
UNITED STATES,
Appellee,
v.
GEORGE CHAPDELAINE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Selya, Cyr and Boudin, Circuit Judges.
Louis F. Robbio with whom Robbio & Nottie, Ltd. was on brief for
appellant. Margaret E. Curran, Assistant United States Attorney, with whom
Lincoln C. Almond, United States Attorney, and James H. Leavey,
Assistant United States Attorney, were on brief for appellee.
March 25, 1993
BOUDIN, Circuit Judge. George Chapdelaine appeals
following his conviction for numerous offenses arising out of
the planned robbery of a Wells Fargo truck by himself and
others at the Emerald Square Mall in North Attleboro,
Massachusetts. The plan was frustrated when the truck left
the location earlier than usual. Chapdelaine was convicted
after trial while his accomplices pled. We affirm.
I. THE EVENTS
Acting on an informant's tip, federal agents and state
and local police on March 3, 1991, followed Chapdelaine and
Anthony Fiore to a meeting with Edward Mahan and George
Whalen in Walpole, Massachusetts.1 The next day, March 4,
Chapdelaine, Fiore, and Mahan drove Mahan's vehicle to a
parking lot in Canton, Massachusetts. When they left, Fiore
was driving a Wagoneer jeep later reported stolen from the
lot. The Wagoneer was taken to a garage in Walpole,
outfitted with a false registration plate, and then driven by
Fiore (accompanied by Chapdelaine in another car) to a
parking lot in North Providence, Rhode Island, where it was
left. Fiore later lodged a stolen Jaguar in a different
parking lot in Warwick, Rhode Island.
On March 25, Chapdelaine and Fiore arrived in separate
vehicles at the Emerald Square Mall in North Attleboro,
1Several law enforcement officers who participated in surveillance of the four men testified at trial to the group's activities.
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Massachusetts. There, Fiore got into Chapdelaine's car and
the two drove around the mall before leaving. A few hours
later, the two men returned to the mall in Fiore's Plymouth,
this time accompanied by Mahan and Whalen. The Plymouth was
parked near a BayBank branch bank located in the mall, and
Fiore and Mahan watched a Wells Fargo truck as it arrived at
the bank and was loaded by a guard. The following day, March
26, Fiore returned alone to the mall, spent a short period of
time, and then left without having made any purchases.
The next day, March 27, Chapdelaine and Fiore drove to a
department store parking lot in Taunton, Massachusetts, where
they remained in their car as the same Wells Fargo truck
which served the Emerald Mall BayBank arrived to serve the
department store. When the truck crossed the street to a
nearby bank, Chapdelaine and Fiore moved their car to a spot
closer to the bank. After the truck left the bank, the two
men drove back to the Emerald Mall parking lot before going
home. They returned the following day, March 28, to the lot
in Taunton, where they again waited in their car until the
Wells Fargo truck arrived and departed.
The next morning, March 29, Chapdelaine and Fiore made
another brief visit to the Emerald Mall parking lot before
proceeding to a parking lot in Cumberland, Rhode Island, to
drop off the stolen Jaguar. They then picked up the stolen
Wagoneer, now in Fiore's garage and bearing yet another
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registration plate, and drove it to the Cumberland lot.
Later all four men met at the Cumberland lot. There,
Chapdelaine opened the trunk of his car, put on gloves,
handed another pair of gloves to Whalen, and removed from the
trunk a green laundry bag which was then placed in the
Wagoneer. The group then drove the stolen vehicles and
Fiore's Plymouth to the Emerald Mall parking lot. As the men
entered the mall lot at 1:27 p.m., they were passed by the
Wells Fargo truck on its way out; the truck's normal arrival
time at the mall was 2 p.m. but this was Good Friday, and
several of the truck's usual stops were closed. The four men
pulled into a parking garage, remained there for a few
minutes, and then drove back to the staging area in
Cumberland.
In Cumberland, all four were arrested. The Wagoneer,
which Chapdelaine was then driving, had to be turned off with
a screwdriver because the steering column was pulled back and
there was no key in the ignition. A subsequent search of the
vehicles turned up the green laundry bag (now in Fiore's
Plymouth) which was found to contain firearms (including a
.357 Magnum with an obliterated serial number), ammunition, a
make-up kit, a black wig and a washcloth. Other items seized
from the vehicles included gloves, several pieces of
clothing, a make-up removal kit, and a police scanner and
radio guidebook. Later that day, in a search of
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Chapdelaine's home in Woonsocket, Rhode Island, agents found
five .357-caliber bullets in his bedroom closet and $22,000
in cash under his bed.
All four men were indicted. Fiore and Mahan pled guilty
prior to trial.2 Whalen, tried together with Chapdelaine,
entered a guilty plea shortly before the close of the
government's case. Chapdelaine was convicted of conspiracy
under 18 U.S.C. 371 to rob a federally insured bank and to
commit four other, related offenses; of two Hobbs Act
violations, 18 U.S.C. 1951; of attempting to rob a
federally insured bank, 18 U.S.C. 2113(a); of using and
carrying firearms during a crime of violence, 18 U.S.C.
924(c)(1); of transporting a stolen vehicle in interstate
commerce, 18 U.S.C. 2312; and of four firearms-related
offenses, 18 U.S.C. 922. After trial, the district court
vacated the conviction on one of the firearms counts because
Chapdelaine's name had been inadvertently omitted from that
count in a superseding indictment used at trial. On all
counts but one, Chapdelaine was sentenced to concurrent
sentences, the longest being 78 months' imprisonment; on the
conviction for carrying a firearm during a crime of violence,
the court imposed the five-year consecutive prison sentence
made mandatory by 18 U.S.C. 924(c). This appeal followed.
2Fiore's appeal from his sentence has been previously decided. United States v. Fiore, 983 F.2d 1 (1st Cir. 1992).
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II. THE TRIAL
Publicity and Jury Prejudice. Chapdelaine first
contends that the district court erred in denying his
informal motion for a change of venue on grounds of
prejudicial pretrial publicity. As evidence of prejudicial
coverage, Chapdelaine points to articles in the Providence
Journal newspaper and to local television coverage, which he
says was inflammatory. Since Chapdelaine does not describe
the content of the television reports, nor allege that the
reports were seen by any of the jurors, we have no basis for
evaluating his complaint about televised coverage.
As for the newspaper articles, they are largely factual
accounts of the arrests of the four men and subsequent guilty
pleas of Fiore and Mahan.3 On the day trial began, the
district judge questioned each of the jurors and alternates,
who had been empaneled two months before, to determine
whether they had discussed the case, been approached or read
or heard anything about it. Only four of the panel, two of
whom ultimately deliberated, answered in the affirmative;
each had been exposed to a November 20, 1991 Providence
Journal article indicating that two of the defendants had
pleaded guilty before trial. All four of the panel members
3One of the articles mentions Chapdelaine's prior conviction for cocaine trafficking and an informant's claim that Chapdelaine and Fiore had earlier tried to rob another armored car. There is no indication that any juror saw this article or knew these supposed facts.
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affirmed that they could be impartial. Neither Chapdelaine
nor Whalen challenged any of the four for cause.
There is no basis on this record for any claim of
"widespread, highly inflammatory publicity." United States
v. Moreno Morales, 815 F.2d 725, 734 (1st Cir.), cert.
denied, 484 U.S. 966 (1987). The only issue is whether juror
knowledge of guilty pleas by co-defendants is information so
searing that failure to excuse the juror for cause is plain
error, even though the trial judge found the jurors to be
impartial. The voir dire did not in this instance reflect a
"pattern of deep and bitter prejudice," Irwin v. Dowd, 366
U.S. 717, 726 (1961), compelling the court to override the
juror's claim of impartiality. We do not think juror bias is
inherent in the knowledge that a co-defendant has pled.
Hines v. United States, 131 F.2d 971, 974 (10th Cir. 1942).
Cf. Murphy v. Florida, 421 U.S. 794 (1975) (juror knowledge
of defendant's prior convictions).
There is even less basis for Chapdelaine's complaint
that some of the seated jurors had relatives in law
enforcement or were familiar with some of the trial
participants or their families. Chapdelaine was entitled to
challenge jurors for cause or to argue on appeal that it was
plain error not to excuse a juror. But here no specifics are
offered in his brief, so there is no error to assess. As for
the claim that trial counsel was ineffective in failing to
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challenge jurors, that issue is not normally open on direct
appeal and must await a collateral attack, if Chapdelaine
chooses to make one. See United States v. Arango-Echeberry,
927 F.2d 35, 39 ((1st Cir. 1991).
Whalen's Guilty Plea. As the government was completing
the presentation of its case, Whalen pled guilty (outside the
presence of the jury) and withdrew from the trial. This
prompted a motion for mistrial from Chapdelaine, which the
district court denied. Chapdelaine's position then, renewed
now, was that the jury would conclude from Whalen's absence
that he had pled guilty and would draw the further inference
that Chapdelaine, as an alleged co-conspirator, must be
guilty as well.
We addressed this issue in United States v. Del Carmen
Ramirez, 823 F.2d 1 (1st Cir. 1987). The district court in
that case, faced with the same situation, declined to declare
a mistrial but gave a cautionary instruction to the jury. We
approved this approach, stating that the court should
"clearly and carefully instruct the jury to consider the
evidence against a particular individual, alone, and to
determine guilt or innocence on that basis." Id. at 3. In
this case, the district court delivered an instruction almost
identical to the one we approved in Del Carmen Ramirez:
Members of the Jury, you'll note that Mr. Whalen is no longer sitting at counsel table and he is no longer a party to this action. You are not, I repeat,
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you are not to speculate, surmise in any way whatsoever why he is not here. It's none of your concern; it's not part of your deliberations; you will not even discuss the matter as we go forward. The case stands here with Mr. Chapdelaine as the defendant. Is anyone going to have a problem with that? If so, speak up now. I can't stress to you the importance of fairness, objectivity, total impartiality and I stress that again and I stress to you why he is not here is none of your concern; it has nothing to do with your deliberations in this case in any way whatsoever.
Chapdelaine now says that the instruction should have
been repeated in the closing charge to the jury. At trial,
he made no such request and the failure to do so was not
plain error.
Sufficiency of the Evidence. Chapdelaine next claims
that the evidence at trial was insufficient to prove
conspiracy, attempted robbery, various firearms-related
offenses, and interstate transportation of a stolen vehicle.
In assessing these claims, reasonable inferences and
credibility judgments are taken in the light most favorable
to the verdict; and the issue is whether a rational jury
could have found the defendant guilty beyond a reasonable
doubt. United States v. Batista-Polanco, 927 F.2d 14, 17
(1st Cir. 1991).
Beginning with conspiracy, Chapdelaine says that the
evidence did not prove an intent to commit robbery. This is
not a serious argument. The evidence described at the outset
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of this opinion, a sketch that omits further incriminating
detail, could easily persuade a reasonable jury that
Chapdelaine and his associates "cased" the BayBank branch and
the armored truck, positioned stolen vehicles for an escape,
acquired weapons and disguises, arrived at the scene ready to
commit the crime and were frustrated only by an accidental
change in the truck's schedule. United States v. Buffington,
815 F.2d 1292 (9th Cir. 1987), where the Ninth Circuit found
the evidence inadequate, involved far less aggravated facts.
This same evidence supported Chapdelaine's conviction
for attempted robbery. To prove attempt, the government must
establish both an intent to commit the substantive offense
and a "substantial step towards its commission," United
States v. Figueroa, 976 F.2d 1446, 1459 (1st Cir. 1992),
comprising "more than mere preparation" but "less than the
last act necessary before the actual commission of the
substantive crime." United States v. Manley, 632 F.2d 978,
987 (2d. Cir. 1980), cert. denied, 449 U.S. 1112 (1981).
Chapdelaine argues that the group's actions amounted to no
more than mere preparation because the defendants did not
leave their vehicles or make a move toward the bank. In Del
Carmen Ramirez we found that a group's conduct in "casing the
bank, stealing a car, and arriving armed at the bank shortly
before the Wells Fargo truck was to arrive" constituted a
substantial step toward robbery. 823 F.2d at 2. See also
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United States v. Johnson, 962 F.2d 1308, 1310-11, 1312 (8th
Cir.) (same result under similar facts), cert. denied, 113
S.Ct. 358 (1992). That describes the activity in this case,
and we have no reason to reach a different result.4
Turning to the firearms-related offenses, Chapdelaine
was convicted of using firearms during and in relation to a
crime of violence, possession of firearms and ammunition
after a felony conviction, and interstate transportation of a
firearm with an obliterated serial number. In addition to
the guns and ammunition recovered from the green laundry bag,
police also seized five rounds of ammunition from
Chapdelaine's bedroom closet. The ammunition recovered from
the closet formed the basis of a separate count.
Chapdelaine's argument on appeal is two-fold. First, he
says that the evidence did not show that he "knowingly"
possessed the guns found in the laundry bag because there was
no proof that he looked inside the bag. At trial,
Chapdelaine testified that he thought the bag contained a
tire jack and car tools. Noting that the bag was recovered
from Fiore's Plymouth instead of the Wagoneer, Chapdelaine
4In a related argument, Chapdelaine contends that the jury instruction on what is "a substantial step" was inadequate. The objection was not raised at trial and we are not told what was wrong with the instruction other than that "a more complex and detailed instruction was required." We therefore consider the claim waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir.) (issued raised in a
perfunctory manner are deemed waived), cert. denied, 494 U.S.
1082 (1990).
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argues that the evidence did not exclude the possibility
that, unbeknownst to him, guns were substituted for the jack
and tools when the bag was transferred from the Wagoneer to
the Plymouth. In this case, involving a carefully planned
armed robbery with abundant weapons, we think the jury could
reasonably infer that the bag's contents when seized were the
same as when Chapdelaine handled the bag hours before, and
that Chapdelaine knew that the bag contained firearms. See
United States v. Arango-Echeberry, 927 F.2d at 38.
Second, Chapdelaine argues that the evidence failed to
prove his "possession" of the firearms in the laundry bag and
the ammunition found in his bedroom closet. Chapdelaine's
handling of the laundry bag adequately established his
possession of the weapons within.5 As for the bullets in
his closet, Chapdelaine emphasizes that the owners of the
house where he rented a room were gun dealers who testified
to storing ammunition throughout the home. However, the
bullets retrieved from Chapdelaine's closet were in an area
within his "dominion and control." Further, they matched
those found in the .357 Magnum recovered from the laundry
bag. This was enough to prove that Chapdelaine was at least
5As for the question of the guns' use in relation to the crime, the jury could readily have concluded that, by transferring the guns to the Wagoneer before setting off for the mall with the others, Chapdelaine "intended to have [the weapons] available for possible use during or immediately following" a robbery. United States v. Payero, 888 F.2d 928,
929 (1st Cir. 1989).
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in "constructive possession" of the ammunition in his closet.
See United States v. Garcia, Nos. 92-1427, 92-1428, slip op.
at 6-11 (1st Cir. Feb. 4, 1993); United States v. Wight, 968
F.2d 1393, 1397-98 (1st Cir. 1992).
Chapdelaine's last attack on the evidence requires
little comment. He says that a rational jury could not
convict him of knowingly transporting a stolen vehicle across
state lines because, as he testified at trial, he did not
realize the Wagoneer was stolen. But of course the jury was
entitled to disbelieve his testimony, and Chapdelaine does
not otherwise contest the government's proof. That proof
included (in addition to that summarized at the outset)
evidence that Chapdelaine possessed tools commonly used by
car thieves and Chapdelaine's own admission that he used a
screwdriver to start the Wagoneer.
The Flaw in the Indictment. Chapdelaine's next claim of
error is the most serious: he was mistakenly convicted of an
offense for which he was not indicted. The count at issue
charged interstate transportation of a stolen firearm, a Colt
.45 caliber pistol seized from the green laundry bag.
Chapdelaine was in fact initially named in this count in the
original indictment handed down by the grand jury. Probably
by accident, Chapdelaine's name was omitted from the count in
a superseding indictment.
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The omission escaped the attention of the prosecutor,
Chapdelaine's defense counsel, and the trial judge, all of
whom proceeded as if Chapdelaine were still charged in the
count. At trial, Chapdelaine's counsel and the government
stipulated that the Colt was stolen, and there was evidence
that he knowingly transported it across state lines. The
district court charged the jury on the stolen firearm count
and it was included in a redacted indictment given to the
jury to reflect only counts naming Chapdelaine. In preparing
the pre-sentence report, the probation officer discovered the
error. The district court then vacated the conviction on the
stolen firearm charge but denied a motion by Chapdelaine for
a new trial on all counts.
We are not cited to any precedent directly addressing
this issue.6 The important fact conveyed to the jury,
Chapdelaine's possession of the weapon, was admissible as
"intent" evidence on several other counts, whether or not
possession was charged as an offense. The stipulated fact
that the gun was stolen may not have been admissible on the
other counts, but if so the prejudicial force of this point
was very faint, as other evidence showed multiple weapons,
6The closest in point is Chow Bing Kew v. United States,
248 F.2d 466 (9th Cir.), cert. denied, 355 U.S. 889 (1957).
The Ninth Circuit there dismissed a conviction on a count in which the defendant was not named while leaving intact a conviction on another charge. The question of whether the former conviction invalidated the latter was apparently not raised.
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two stolen cars, an obliterated serial number and ample
planning. The jury was instructed to separate the evidence
as to each count, and its verdict--including the acquittal of
Chapdelaine on two counts relating to the stolen Jaguar--
suggests that it did just that.
III. SENTENCE
Chapdelaine's final challenge is to sentencing
calculations.7 First, as to the counts charging interstate
transportation of the stolen Wagoneer, he objects to
including the value of the stolen Jaguar and to a two-level
enhancement in his base offense level for more than minimal
planning. These computations were made in the pre-sentence
report, without objection by Chapdelaine. Whether or not
these computations were error (Chapdelaine was not convicted
of the counts relating to the stolen Jaguar), his sentence
was not affected by these two calculations. Pursuant to the
guidelines, the district court disregarded the stolen car
counts and set Chapdelaine's offense level solely on the
basis of the grouped robbery counts. U.S.S.G. 3D1.4(c).
It then sentenced Chapdelaine at the low end of the guideline
7Although the 1991 Sentencing Guidelines were in effect at the time of Chapdelaine's sentencing, the district court applied the 1990 guidelines in effect at the time of the offenses, a result more favorable to Chapdelaine. See United
States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).
All references in this opinion are to the 1990 guidelines.
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range due to his age. Adjustments to the stolen car counts
simply did not figure into Chapdelaine's sentence.
Next, Chapdelaine complains of the computation on the
robbery counts. The guideline for robbery calls for a four-
level increase for losses ranging from $800,000 to
$1,500,000. U.S.S.G. 2B3.1(b)(6). Where as here an attempt
or conspiracy is at issue, "intended" loss is the test.8 At
sentencing, over Chapdelaine's objection, the court imposed a
four-level increase in his base offense level for a "loss" of
$1,000,000--the approximate amount of money contained in the
Wells Fargo truck when it stopped at the BayBank on the day
Chapdelaine and the others were arrested.
Chapdelaine contends that the loss in this case was
speculative because no robbery actually occurred. However,
"[i]n an attempted theft, the value of the items that the
defendant attempted to steal would be considered." U.S.S.G.
2X1.1, application note 2. The requirement in section
2X1.1(a) of "reasonable certainty" "goes to what with
reasonable certainty can be determined to be the
8U.S.S.G. 2B3.1, application note 3, cross-references section 2B1.1 for "valuation of loss" in robbery offenses. Section 2B1.1, application note 2, refers the judge to section 2X1.1 in cases of "partially completed conduct." Section 2X1.1 sets the base offense level as that fixed for the object offense (in this case, robbery), "plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." U.S.S.G 2X1.1(a).
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conspirator's intent." United States v. Medeiros, 897 F.2d
13, 18 (1st Cir. 1990).
Finally, Chapdelaine invokes section 2X1.1(b), which
directs the sentencing court to decrease by three levels the
offense level for an attempt or conspiracy unless the
defendant or conspirators were "about to complete" the
underlying offense "but for the apprehension or interruption
by some similar event beyond [the defendant's or
conspirators'] control." U.S.S.G. 2X1.1(b)(1), (2). The
district court in this case declined to grant the reduction
because it found that the robbery was frustrated "simply
because the . . . truck arrived earlier than usual." On
appeal, Chapdelaine disputes the correctness of this finding
while the government naturally urges us to uphold the
district court.
We affirm the district court's conclusion that on the
present facts Chapdelaine was not entitled to the reduction.
The evidence showed that Chapdelaine and the others arrived
at the mall prepared and equipped to carry out a robbery and
were thwarted only by the unexpected early departure of the
Wells Fargo truck. Under these circumstances, there was no
clear error in the district court's conclusion that
Chapdelaine was "about to complete" a robbery "but for
apprehension or interruption by some similar event beyond
the defendant's control." U.S.S.G. 2X1.1(b)(1). See
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United States v. Johnson, 962 F.2d at 1313-14 (upholding
denial of the reduction under similar facts).
Chapdelaine argues that the reference in section
2X1.1(b) to an interruption "similar" to apprehension
excludes offenses that are prevented by fortuitous events
like the premature departure of the Wells Fargo truck. In
our view, the guideline reflects a policy decision that
conspiracies and attempts should be treated like substantive
offenses for sentencing purposes if the substantive offense
was nearly completed, and the defendant did not voluntarily
withdraw. The Sentencing Commission likely believed that
near accomplishment of the criminal object normally poses
enough risk of actual harm, and reveals enough culpability,
as to justify the same punishment that would be imposed for a
completed offense. It is nearness of the crime to
achievement--not the precise nature of the involuntary
interruption--that defeats the reduction available for
conspiracies and attempts that have not progressed very far.
This one progressed far enough.
The judgment of conviction and sentence are affirmed.
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