United States v. Girard

Opinion

USCA1 Opinion

October 4, 1996         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 96-1369



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  ROBERT R. GIRARD,



                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                           Selya and Stahl, Circuit Judges.
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                                 ____________________



            Kara M. Fay on brief for appellant.
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            Sheldon Whitehouse, United  States Attorney, and Andrew J.  Reich,
            __________________                               ________________

        Assistant United States Attorney, on brief for appellee.


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Per Curiam.   Appellant-defendant Robert R.  Girard
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            appeals   from  his   conviction  after   a  jury   trial  of



            intimidating and  using physical  force against a  witness in



            retaliation  for  past   testimony  and  to   prevent  future



            testimony  in  an official  proceeding,  in  violation of  18



            U.S.C.    1512(b) and 1513(b).  We affirm the conviction.



                 I.  Failure  to  Grant   Continuance  to  Review  Jencks
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            Material       "A trial court has wide discretion to grant or
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            deny  a request  for continuance.   'Only an  unreasoning and



            arbitrary insistence  upon expeditiousness  in the face  of a



            justifiable  request  for delay  violates  the  right to  the



            assistance of counsel' and  would amount to an abuse  of that



            discretion."  United States  v. Brand, 80 F.3d 560,  564 (1st
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            Cir. 1996)(citation  omitted).  In determining  whether there



            has  been an abuse of discretion,  this court should consider



            "appellants'  special reasons, plus  relevant factors such as



            the amount of time needed  for effective preparation and  the



            amount actually available,  diligence in preparing  for trial



            and  whether  the  defense   contributed  to  its   perceived



            predicament,   the   likely   utility   of   a   continuance,



            inconvenience to  the court,  opposing party,  and witnesses,



            and any unfair prejudice caused by the denial." Id.
                                                            ___



                 "The Jencks  Act by its  terms limits disclosure  of the



            disputed information until after a witness' direct testimony.



            18  U.S.C.    3500(a).   The  district  court then,  'in  its


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discretion, upon application  of [the] defendant, may  recess



            proceedings in the trial for such time as it may determine to



            be reasonably required for  the examination of such statement



            by  said defendant  and his  preparation for  its use  in the



            trial.' 18 U.S.C.   3500(c)."  United States v. Arboleda, 929
                                           _____________    ________



            F.2d 858, 863(1st Cir. 1991).  



                 Here, appellant  contributed to  his own  predicament by



            failing to request  a continuance prior to  cross-examination



            or  at  any  time  during Francisco's  testimony.    Although



            defense  counsel was  given  the Jencks  material before  the



            start of  Francisco's  cross-examination, appellant  did  not



            request a  continuance to review the  transcripts until after



            the  government  had begun  direct  examination  of its  next



            witness.  Moreover,   appellant  has   failed  to   show  "'a



            particular  detriment  suffered   as  a  result  of   delayed



            disclosure.'"  Id.  at 864.    In light  of  the considerable
                           __



            evidence linking  appellant to the assault  on Francisco, the



            court's  refusal  to  grant  a  continuance  --  even  if  it



            precluded   cross-examination    on   Francisco's   allegedly



            inconsistent  testimony about the color of the car -- did not



            seriously prejudice the defense.



                 II. Failure to Read Back Testimony
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                 "[W]e  have  long  and  repeatedly  held that  rereading



            testimony during  jury deliberations rests  in the presider's



            sound discretion."  United States  v. Akitoye, 923  F.2d 221,
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226 (1st Cir. 1991).  In Akitoye, we ruled  that the district
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            court had  not abused  its discretion in  denying the  jury's



            specific  request  for  testimony  to   be  read  back.    We



            emphasized  that "[t]he  trial  was brief  and the  testimony



            fresh in  the jurors' minds, a  circumstance which ordinarily



            lessens the need for  rereading." Id. at 226.  We  also noted
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            that  the  request  was  "broad  and  general  --  not  'well



            focused.'" Id.  
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                 The factors supporting the denial of a reread in Akitoye
                                                                  _______



            were also  present in this  case.  The  trial in the  instant



            case lasted for  less than two days.  The  testimony that the



            jury sought to  review had  been given only  the day  before.



            Although defense  counsel suggested that the  jury might want



            to further focus its request, the jury did not pick up on the



            suggestion.    Nor did  defense counsel  specifically request



            that the jury  be questioned regarding the particular area of



            confusion that had led to the transcript  request.  Moreover,



            the  jury in  this case  never specifically requested  a read



            back  once it was told that the transcript was not available.



            There was no abuse of discretion.



                 III. Sufficient Evidence of Knowledge
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                 Appellant argues that  "the prosecution failed to  prove



            'knowledge' of any  degree that the Appellant  was aware that



            Francisco implicated the Appellant in any federal  proceeding



            or  that any federal matter  was pending." Under  18 U.S.C.  


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1512(b), it  is unlawful to "knowingly  use[] intimidation or



            physical  force [or to threaten]  . . .  another person, with



            intent to . . . influence,  delay or prevent the testimony of



            any  person  in  an  official proceeding."    "[A]n  official



            proceeding need not be  pending or about to be  instituted at



            the time of  the offense." 18 U.S.C.    1512(e)(1).  "Both  a



            federal  trial and  a  federal grand  jury investigation  are



            'official proceedings' within  the meaning  of the  statute."



            United States  v. Frankhauser,  80 F.3d  641,  651 (1st  Cir.
            _____________     ___________



            1996).  



                 "Section  1513(b)   requires   proof  of   (1)   knowing



            engagement in  conduct; (2) either causing  or threatening to



            cause, bodily injury  to another person;  (3) with intent  to



            retaliate  against  any  person for,  inter  alia,  providing



            information relating to the commission of a federal offense."



            United  States v. Paradis, 802 F.2d 553, 562 (1st Cir. 1986).
            ______________    _______



            Therefore, to prove intent to retaliate against a witness, it



            is  necessary to  prove knowledge  by the defendant  that the



            witness provided information relating  to the commission of a



            federal offense.



                 "On appeal,  [this court]  review[s] a challenge  to the



            sufficiency of  the evidence under a familiar  standard.  The



            evidence must be viewed  'in the light most favorable  to the



            government, drawing  all legitimate inferences  and resolving



            all  credibility  determinations in  favor  of the  verdict.'


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Thus probed, the verdict must be upheld if any rational trier



            of fact could have found the elements of the offense beyond a



            reasonable doubt." United States v. Victor, 973 F.2d 975, 977
                               _____________    ______



            (1st Cir. 1992)(citations omitted).



                 In this  case, there was sufficient  evidence from which



            the jury could have found beyond a reasonable doubt both that



            appellant was aware of  Francisco's past cooperation with the



            federal  authorities  and that  appellant  at  least expected



            there to be a future  federal proceeding.  In the context  of



            the evidence as a  whole, appellant's statements to Francisco



            on  August   15,  1995,  were  "direct   evidence  that  [the



            defendant] in fact expected a grand jury investigation and/or



            a trial in the foreseeable future, and that his intent was to



            [prevent the witness from testifying at] such a proceeding or



            proceedings." Frankhauser, 80 F.3d at 652.  Appellant  is not
                          ___________



            entitled  to  relief on  his  insufficiency  of the  evidence



            claim.



                 IV. Ineffective Assistance of Counsel
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                 "To  obtain  a  reversal  on the  basis  of  ineffective



            assistance of counsel a  defendant must show that there  is a



            reasonable probability that, but for counsel's unprofessional



            errors,  the factfinder  would  have had  a reasonable  doubt



            respecting guilt."  United  States v. Palow, 777 F.2d  52, 57
                                ______________    _____



            (1st  Cir.  1985),  cert.   denied,  475  U.S.  1052  (1986).
                                ______________



            Appellant  raised the ineffective assistance claim before the


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district  court in his motion for  a new trial.  The district



            court  ruled that  appellant  had failed  to claim  prejudice



            "other  than to  say that  somehow Mr.  Williams' performance



            fell below the  performance one would  expect of an  attorney



            under the circumstances."   We agree with  the district court



            that   appellant  has   failed   to  demonstrate   prejudice.



            Accordingly, we need not reach the issue of whether counsel's



            performance was deficient.



                 A.   Failure   to   Cross-Examine  Francisco   Regarding
                      ___________________________________________________



            Inconsistencies  in Testimony on the Color of the Car.  There
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            was  no prejudice from this failure for the reasons discussed



            above  in connection  with  the court's  failure  to grant  a



            continuance.   Viewed  in the context  of the evidence  as  a



            whole, the alleged inconsistency  does not raise a reasonable



            doubt  that  if  the  jury  had  been  confronted  with  that



            inconsistency, it would have acquitted appellant.



                 B.   Conflict Between Attorney  and Client.  Appellant's
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            second  ineffective  assistance argument  is  that the  trial



            court  erred  in  not  determining  the need  for  a  hearing



            regarding  the breakdown  in communication  between appellant



            and his attorney. "Where the accused voices objections to the



            appointed counsel,  the trial  court should inquire  into the



            reasons for the dissatisfaction." United States v. Allen, 789
                                              _____________    _____



            F.2d  90,  92 (1st  Cir. 1986),  cert.  denied, 479  U.S. 846
                                             _____________



            (1986).  In this  case, however, appellant did not  voice any


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objections  to  counsel and,  therefore,  the  court was  not



            obliged to make an inquiry into the cause of dissatisfaction.



                  Although  appellant never  requested  a continuance  or



            substitution of  counsel, the  district  court's response  to



            defense  counsel's comments at the start of the second day of



            trial implied that it  had found that there was not  a "total



            lack of communication preventing an adequate defense." United
                                                                   ______



            States v. Pierce,  60 F.3d  886, 891 (1st  Cir. 1995),  cert.
            ______    ______                                        _____



            denied,  __ U.S. __,  116 S. Ct.  2580 (1996).   That implied
            ______



            finding  is  supported  by   the  record.    Defense  counsel



            hesitated even to characterize the difference of opinion as a



            disagreement.   The  transcript of  the second  day of  trial



            indicates  appellant  and  his  attorney  were  communicating



            effectively.  The district court did not err.


C.   Failure to Call Kenneth Landry as a Witness.
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                 "The decision  whether to  call a particular  witness is



            almost   always  strategic,  requiring  a  balancing  of  the



            benefits  and risks  of the  anticipated testimony."  Lema v.
                                                                  ____



            United  States, 987 F.2d 48,  54 (1st Cir.  1993).  Appellant
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            has failed to show  how the failure to call  Landry "deprived



            him of a 'viable defense.'" United States v. Porter, 924 F.2d
                                        _____________    ______



            395,  397  (1st  Cir.  1991).   Testimony  by  Francisco  and



            Gonzvales  that  the  Subaru  was  "dark-colored"  does   not



            contradict Landry's statement  that the car  was black.   The


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failure  of  Francisco  and   Gonzvales  to  comment  on  the



            noisiness  of the Subaru  is inconsequential in  light of the



            considerable other  evidence linking appellant  to the events



            at Francisco's  shop on  August  15, 1995.   The  ineffective



            assistance of counsel claim fails.



                 For all of the  above reasons, appellant's conviction is



            summarily affirmed.  See Loc. R. 27.1.  
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