United States v. DiNovo

Opinion

USCA1 Opinion

June 14, 1995         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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        No. 94-1819



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   RUSSELL DiNOVO,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                 ____________________



                                        Before



                           Boudin and Lynch, Circuit Judges,
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                        and Schwarzer,* Senior District Judge.
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            Lawrence P.  Murray  with whom  Henry F.  Owens, III  and Owens  &
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        Associates were on brief for appellant.
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            Emily R.  Schulman, Assistant  United States  Attorney, with  whom
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        Donald K. Stern, United States Attorney, was on brief for appellee.
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        * Of the District of Northern California, sitting by designation.



Per Curiam.  On December 9, 1992, officer John Albert of
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            the Cambridge Police  Department spotted  appellant-defendant



            Russell  DiNovo driving  with a  male passenger  in a  Toyota



            Camry traveling along Cambridge Street.  When the car stopped



            in traffic,  Albert observed that  its right rear  window was



            missing,  that pieces of glass  were in the  car's door frame



            and that a screwdriver was inserted in the ignition.  A check



            of the car's license  plate number revealed that the  car had



            been  stolen earlier  that day.   Based on  this information,



            police officers  shortly thereafter arrested  DiNovo and  the



            passenger, Irving Lee.



                 During  the course  of the  arrest, Albert  noticed that



            both  men were wearing two  sets of clothes.   Upon searching



            DiNovo, police discovered what appeared to be a homemade mask



            made out of a shirt sleeve.  A second mask was later found in



            the  police  wagon that  transported  DiNovo and  Lee  to the



            police  station.   A  search of  the  Camry yielded  a loaded



            Beretta 9 millimeter semi-automatic pistol located underneath



            the front seat of the car.  A palm print lifted from the butt



            of the pistol matched DiNovo's left palm.



                 DiNovo  was  charged  with  being  a  felon  in  knowing



            possession  of  a  firearm  in  violation  of  18  U.S.C.    



            922(g)(1).   At  trial,  DiNovo took  the  position that  the



            evidence did  not establish that  he had  ever possessed  the



            Beretta,  but  he was  nevertheless  convicted  by the  jury.


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Because  DiNovo  had three  previous convictions  for violent



            crimes, he was sentenced under the Armed Career Criminal Act,



            18  U.S.C.   924(e), to 235 months' imprisonment.  On appeal,



            DiNovo challenges both his conviction and sentence.



                 DiNovo first objects to the  admission of the two pieces



            of  cloth that the jury could  reasonably have concluded were



            homemade masks.   The masks, together  with other indications



            that a robbery was  planned, helped to supply a basis for the



            jury to infer a motive for DiNovo's possession of the weapon.



            While the masks thus fall within the literal terms of Fed. R.



            Evid.  404(b), DiNovo objects that the inference of a planned



            robbery was too thin to satisfy Rule 404(b) and the potential



            for prejudice too great to justify admissibility of the masks



            under Fed. R. Evid. 403.



                 The district court's judgment on issues of this  kind is



            normally  given wide  latitude.   See  Espeaignnette v.  Gene
                                              ___  _____________     ____



            Tierney Co.,  Inc., 43 F.3d  1, 5  (1st Cir. 1994).   In  all
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            events,  the masks  together with other  evidence--the stolen



            car, the double suits  of clothes--made the inference  that a



            robbery was planned far  more than mere speculation.   As for



            the balancing  of need versus  prejudice under Rule  403, the



            government had ample need for the motive evidence in order to



            confirm DiNovo's  connection with  the weapon.   The  risk of



            unfair prejudice  was quite limited compared  to 404(b) cases



            inwhich evidence of actualprior crimes is regularly admitted.


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DiNovo's second major objection relates  to the district



            court's charge on the definition of possession.  The district



            court's charge  for the most  part described the  concepts of



            actual and constructive possession  in terms that were either



            conventional or  generally helpful to DiNovo.   DiNovo's main



            complaint is  that the district  court refused to  include in



            the  charge   certain  language   proposed  by   the  defense



            including,  most  importantly,  an  instruction  that "[m]ere



            incidental  touching  or  handling  of the  object  does  not



            constitute possession."   On appeal, DiNovo  argues that this



            proposed  request  was a  proper  statement  of  the law  and



            necessary in light of  DiNovo's theory that his print  on the



            weapon might be explained by a mere touching.



                 On theory of the  defense grounds, DiNovo might arguably



            have been entitled to some instruction that made clear to the



            jury  that  not  every  incidental contact  with  the  weapon



            automatically compelled the jury to find possession.  But the



            language proposed by DiNovo  went much further.  It  extended



            to  an "incidental  . .  . handling"  of the  weapon,  and it
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            essentially  directed  the  jury   that  such  an  incidental



            handling  would never  be  enough to  convict.   Whether  the



            quoted  language   is  regarded   as  confusing  or   a  flat



            overstatement, it  is plain that  the district court  was not



            obliged to give this instruction.


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A defendant  who requests  an instruction is  obliged to



            provide an instruction that accurately reflects the law.  See
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            United States v. Iaciofano, 734 F.2d 87, 90 (1st Cir.), cert.
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            denied,  469  U.S. 850  (1984).   The  district judge  is not
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            obliged to carve down  and preserve the unspoiled core  of an



            otherwise  tainted piece  of  fruit.   In this  instance, the



            district court, in response to DiNovo's request, modified the



            possession  charge to say  that the defendant  had to possess



            the  weapon "knowingly" and  "[k]nowingly means  he possessed



            with  intent  to  exercise  dominion  and  control  over  the



            firearm."   Not only  did the court  properly reject DiNovo's



            overstated  or confusing  instruction,  but it  gave him  the



            substance of what he might reasonably have requested.



                 DiNovo's third argument is that the district court erred



            when, on a  request by the jury, it provided  the jury with a



            magnifying  glass--presumably  sought  to examine  exhibits--



            during its deliberations.  DiNovo complains that the district



            court should  not have supplied this glass without asking the



            jury about  its precise intended purpose  and giving limiting



            directions  as to its proper  use.  Improper  use, DiNovo now



            contends,  might distort the appearance of an exhibit.



                 At trial  DiNovo's counsel  objected to giving  the jury



            the magnifying  glass but  never asked  the judge  to inquire



            into its  intended use or  give jurors any  instructions, nor



            did  DiNovo  identify for  the  district  court any  specific


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potential  misuse  of  the  magnifying  glass  against  which



            precautions  should be  taken.   Jury management  matters are



            normally within the district court's sound discretion, and if



            DiNovo wanted  questions to  be  asked or  limitations to  be



            imposed,  he was obliged to  say this to  the district judge.



            There is  certainly no plain  error in  the district  judge's



            handling of the matter.



                 Finally,  DiNovo   objects   to  a   procedural   ruling



            pertaining  to  his sentencing.    DiNovo  received the  pre-



            sentence report on April 19, 1994, was given two continuances



            at  his own request, and finally was scheduled for sentencing



            on July  13.  On  that date,  DiNovo's CJA  counsel moved  to



            continue  the sentencing  and  withdraw  because of  DiNovo's



            dissatisfaction  with  counsel's representation  and DiNovo's



            assertion that he might after investigation wish to challenge



            the validity of  certain of the  prior convictions listed  in



            the pre-sentence report.



                 Custis  v.  United  States,  113  S.  Ct.  1732  (1994),
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            narrowed the grounds on  which a defendant may  at sentencing



            attack  a prior  conviction under  the Armed  Career Criminal



            Act.   When at sentencing  DiNovo expressed a  desire to have



            his  earlier convictions  investigated,  the  district  court



            inquired of defense counsel  and counsel explained that under



            Custis  he believed  that DiNovo  had no  basis to  attack at
            ______



            sentencing  any of  his prior  convictions.   It was  at that


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point  that the  district  court refused  to replace  defense



            counsel or to continue the sentencing for a third time.



                 Neither  in the  district court  nor in  this court  has



            DiNovo  explained what  purpose would have  been served  by a



            continuance.    He  does not  claim  that  any  of the  prior



            convictions were  obtained without representation  by counsel



            nor  has  he pointed  to any  other  reason for  delaying his



            sentencing  except  a generalized  desire to  investigate his



            prior convictions.  Under  these circumstances one can hardly



            say that the district court abused its discretion in refusing



            a third continuance of the sentencing or that DiNovo has been



            prejudiced by the district court's refusal.



                 In  the  closing  paragraphs addressed  to  this  issue,



            DiNovo's brief on appeal says  that his counsel at sentencing



            misread  Custis and  that  DiNovo was  deprived of  effective
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            assistance of counsel at sentencing.  It is by no means clear



            on  this  record  that  defense  counsel  misunderstood   the



            limitations   imposed  by   Custis   or  that,   if  he   did
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            misunderstand  them, his  misunderstanding had  any practical



            importance in this case.  In all events, the ordinary rule is



            that  attacks  on  the  adequacy of  trial  counsel  are  not



            normally considered  on direct  appeal, but are  reserved for



            proceedings under 28  U.S.C.    2255.  See  United States  v.
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            Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert. denied, 114 S.
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Ct. 1839 (1994).   This case illustrates the reasons  for the



            rule, and we invoke it here. 



                 Affirmed.
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