[NOT FOR PUBLICATION]
United States Court of Appeals For the First Circuit
No. 95-2031
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT M. JOOST,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cummings,* Circuit Judge.
Robert Joost on brief pro se.
Kenneth P. Madden, Assistant United States Attorney, and Sheldon
Whitehouse, United States Attorney, on brief for appellee.
August 7, 1996
*Of the Seventh Circuit, sitting by designation.
COFFIN, Senior Circuit Judge. Defendant Robert Joost was
convicted by a jury of conspiracy to obstruct, delay and affect
commerce by robbery of gold from an armored car, in violation of
18 U.S.C. 1951 (the Hobbs Act).1 He filed this appeal pro se,
alleging a host of errors. Finding none of them to affect the
integrity of the conviction, we affirm.2
FACTUAL BACKGROUND FACTUAL BACKGROUND
In March 1994, an informant, Tracy, introduced defendant to
two undercover Rhode Island detectives, DelPrete and O'Donnell,
who were investigating the manufacture of counterfeit Foxwoods
Casino (Connecticut) slot machine tokens by defendant and others.
During the ensuing months, defendant supplied the detectives with
many such tokens, which the detectives said they were able to
exchange for cash at the cashier's cage through a cousin of one
of them.
On April 24, 1994, defendant asked the detectives to join
him in robbing a Meehan armored car that regularly carried gold
to New York. He said he had earlier assembled a gang for this
job and had made plans that he now sought to reactivate. In
1 The same jury was unable to reach a verdict on a co- defendant, Grelle, who later pled guilty.
2 Defendant also was charged with two additional offenses. His conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g), is being vacated in a decision issued simultaneously with this one because of the trial court's erroneous refusal to give an instruction on entrapment. United
States v. Joost, No. 95-2032 (1st Cir. July xx, 1996). An
indictment alleging interstate theft and counterfeiting, in violation of 18 U.S.C. 371 and 487, was dismissed without prejudice.
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subsequent conversations in May defendant said that the company
had changed its vehicle from a truck to a van. On May 28,
defendant, Grelle, and the two detectives drove to Pennsylvania
to carry out a robbery of a warehouse or tractor/trailer, but
were intercepted by a prearranged investigative stop in which
police confiscated burglar tools supplied by defendant.
Further talk about the Meehan job led to a surveillance in
woods near the armored car facility on the night of June 29-30.
Defendant had said that the vehicle carried up to $6 million in
gold, and that Leach & Garner was one customer. He said that
guards would arrive at about 3:00 a.m., that one would leave
first for the vehicle and another would follow. Defendant's plan
had two of his team rushing the first guard while a third would
alert them to the approach of the second guard, both of whom
would be seized, and shot if necessary with a silencer. The
robbery aborted when the guards failed to appear.
Executives of both Leach & Garner and Meehan corroborated
the pick-up time (between 4:30 and 5:30 p.m.), the value of the
shipment (averaging $5 million), overnight storage at Meehan's
Woonsocket facility, the arrival of two guards at 3:00 a.m., and
the change in April 1994 from a truck to a van. Defendant
testified that he had gotten his information from a prison
roommate, used them in a novel he was writing, and brought up the
armored car project in order to sustain the interest of the
detectives until he, defendant, could meet and establish his own
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connection with the "cousin" in the casino's cashier's cage. He
had never intended to follow through on an actual robbery.
Insofar as additional facts may be relevant on particular
issues, they will be incorporated into the following discussion.
DISCUSSION DISCUSSION
Defendant represented himself at trial during presentation
of the government's case; after the government rested, he
requested standby counsel to take over. In this appeal, he
resumes self-representation, and has briefed sixteen issues.
While some merit more discussion than others, we shall follow the
sequence in which both defendant and the government have
presented their positions.
1. "Other Acts" Cross Examination.
Defendant's basic theme, introduced in his opening and
reiterated in his testimony, was that he did not engage in armed
robberies, that he was fully aware of the heavy penalty imposed
on a convicted felon found in possession of a firearm, and that
his many discussions with the detectives concerning past and
future criminal projects were fanciful tales designed to sustain
their interest until he could establish his own modus operandi
with the casino's cashier.
The government sought to rebut defendant's claim of lack of
intent to rob by asking O'Donnell about the conversations
defendant had had with the detectives concerning various criminal
ventures. On objection, the court refused to allow such
questioning, deeming prejudice to outweigh relevance at that
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point, but noting that the ruling was "subject to whatever else
is going to come out." Defendant subsequently took the stand and
testified at length about his lack of intent to rob the armored
car.
When the government proposed to cross examine defendant
about his various proposals to the detectives, the court deferred
ruling and further questioning pending resolution of the question
whether, if defendant invoked the Fifth Amendment, all of his
testimony should be stricken. The court subsequently became
satisfied that defendant's taking the Fifth Amendment on
collateral matters would not affect his prior testimony. It
therefore allowed the government to ask some twenty-three
questions about defendant's conversations or actions concerning
proposed thefts from a UPS van, an American Legion hall, and a
Pennsylvania warehouse, and delivery of a firearm to the
detectives. Defendant, in the presence of the jury, invoked the
Fifth Amendment as to each question.3
He now makes two arguments. First, he asserts that the
court improperly failed to balance prejudice against relevance,
although he undercuts this argument by observing, "At best, this
`evidence' was merely cumulative." We think it clear that the
court was fully aware of its responsibilities. It earlier had
3 In defendant's subsequent prosecution for being a felon- in-possession of a firearm, see supra at n.2, his defense of
entrapment relied on a full disclosure of all of these conversations and actions, which he characterized as fanciful fiction, devised to induce the detectives to continue their dollars-for-tokens support.
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rejected the proffered line of questioning and permitted it only
after defendant testified extensively about his lack of intent.
While, as always, explicit findings would have avoided any issue,
we do not deem this an abuse of discretion. See United States v.
De La Cruz, 902 F.2d 121, 123 (1st Cir. 1990).
Defendant's second argument is that there was no "real
evidence" or responses from him backing up the insinuations of
the prosecutor. But this is not a situation where the prosecutor
was flying blind and asking questions without any legitimate
reason. Some of the subject matter -- the trip to Pennsylvania
to rob the warehouse -- was already in evidence; and both sides
were fully aware that most of the relevant conversations had been
taped. The government's attempt to elicit the same information
from its witness had been foreclosed. Defendant, who had the
option of convincing the jury of his "version of the facts and
his reliability as a witness, [or] not to testify at all [,] . .
. cannot reasonably claim that the Fifth Amendment gives him not
only this choice but, if he elects to testify, an immunity from
cross-examination on the matters he has himself put in dispute."
Brown v. United States, 356 U.S. 148, 155-56 (1958).
Moreover, this objection was not effectively raised at
trial. Only two of the twenty-three questions were objected to on
the ground of "lack of evidence." Both of these concerned
whether defendant had looked at the American Legion building, but
other questions had been asked without objection concerning the
plan to rob that building.
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2. Rulings admitting evidence.
a. O'Donnell testified about a conversation with
codefendant Grelle, in which Grelle told of his son's involvement
in an armored car robbery. The testimony was promptly struck and
a cautionary instruction given. After a recess both Grelle and
defendant moved for a mistrial. The linkage between Grelle's son
and defendant is tenuous and remote. This is not mistrial
material.
b. The informant Tracy at one point testified that one
reason why he did not tell defendant that O'Donnell and DelPrete
were really state troopers was concern for his own safety. An
objection was overruled. But earlier Tracy had given the same
reply in direct examination by defendant. Moreover, this adds
nothing to defendant's own talk about being prepared to shoot the
armored car guards. If error, it was harmless.
c. The government asked defendant if he had been
convicted of a conspiracy to violate civil rights by murder.
Objection to the question was overruled. Defendant answered by
saying, "That's not true. It was by death resulting." Then,
after defendant repeated that the conviction was for "conspiracy
to violate the civil rights of a citizen, death resulting," the
prosecutor interjected, "By killing; conspiracy by killing?"
Defendant answered, "Well, yes. There was a death resulting,"
just before objection was made and overruled.
A reading of United States v. Guillette, 547 F.2d 743, 748-
49 (2d Cir. 1976), reveals that a prospective witness in a
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prosecution against this defendant and another had been killed by
a bomb activated when opening the front door of his house.
Defendant argued that it had been installed by the victim as a
booby trap aimed at him and his codefendant, who were searching
for him to prevent him from testifying. The Connecticut trial
court refused to charge that such a fact, if found true, would
exonerate defendant. The Second Circuit agreed, holding that the
defendants "would still be considered in the chain of legal
causation if the immediate cause of death -- setting a bomb as a
booby trap -- was a foreseeable protective reaction to their
criminal efforts to locate and dissuade him from testifying."
The court, in discussing another issue, even referred to "the
murder of LaPolla [the victim]." Id. at 755. The questions asked
did not mischaracterize the conviction in any significant way.
Defendant presents four other issues of this nature but
either the objections were sustained or no objection was made;
all are insubstantial.
3. Limiting examination and refusing offer of proof.
From two days of his cross-examination of O'Donnell,
spanning 174 pages of transcript, defendant distills two asserted
errors. One rises out of a specific limitation on further cross
by the court that prevented defendant from inquiring into
O'Donnell's misreading of a telephone number -- to show that he
might also have misread a gesture defendant had made. This is
obviously within the discretion of the court.
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The second was merely a final limitation of one more hour
(instead of two), and subsequent 20 and 5 minute warnings. When
defendant wished to make an "offer of proof" of the remaining
questioning he wished to do (which would have centered on missing
or defective tapes), the court refused. We cannot contemplate
how such actions, after two days of cross examining one witness,
could be held an abuse of discretion.
A final asserted error was the ruling preventing defendant
from telling about another armored truck fantasy he had told the
detectives, to prove he was just a storyteller. There already
were quite enough of these to allow defendant to argue his
version.
4. Directing court reporter to read her notes of tape.
After the jury reported to the court that a tape recording
was inaudible, the court told the jury to make another effort.
Then, following a subsequent request from the jury, the court
ordered the court reporter to read her notes made earlier from
the recording. After she concluded, counsel for defendant
objected, saying that he had been comparing what was being read
with the transcript of the tape, and found some
misidentifications. He mentioned that at one point the reporter
attributed some of the detectives' statements to one or both
defendants.
It is of course the case that the tapes, not the transcript,
constitute evidence. United States v. Richman, 600 F.2d 286, 295
(1st Cir. 1979). But it is within a judge's discretion to allow
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a reporter to read back testimony, United States v. Akitoye, 923
F.2d 221, 226 (1st Cir. 1991), and such principle would seem to
apply here. In any event, we see no possibility of prejudice.
O'Donnell had testified extensively about the events and
conversations on the evening of June 29-30, the subject of the
tape recording. Defendant has pointed to no discrepancy in the
courtreporter's reading of her notes that could have damaged him.
5. Dismissal of two jurors.
During the trial, on April 7, 1995, defendant's counsel
became ill. When it was apparent that the trial would be
suspended for an additional week, the court was informed that two
jurors had prepaid for vacations that were scheduled to begin the
week when trial would resume. The court announced to counsel for
all parties in a telephone conference call that the jurors would
be excused. There was no objection. Defendant claims not to
have known of this action until shortly before trial resumed.
Defendant first argues that a scheduled vacation is not a
legitimate reason to excuse a juror, under Fed. R. Crim. P. 24.
Under the circumstances, this was within the sound discretion of
the court, United States v. Corsino, 812 F.2d 26,33 (1st Cir.
1987), and in any event this issue was not presented to the
court.
A second argument is that defendant himself was not involved
in the telephone conference. While a party must be represented
by counsel in such conferences, there is no constitutional right
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to be present when dismissal of a juror is discussed. See United
States v. Brown, 571 F.2d 980, 986-87 (6th Cir. 1978). There was
no error in dismissing these jurors.
6. Composition of grand and petit juries.
Defendant moved to dismiss the indictments in this and the
felon-in-possession case for failure to comply with the Jury
Selection and Service Act of 1968, 28 U.S.C. 1861-1878 (the
Act), and the Fifth and Sixth Amendments, and to stay proceedings
until valid petit juries could be drawn. After hearing argument,
the court refused to hold an evidentiary hearing and denied the
motion. Defendant raises four issues.
a. Delay. Defendant claims that delay in making
available to him jury information denied him due process and
equal protection. Although the Magistrate Judge granted
defendant access to the master jury wheel and the qualified jury
wheel in October, 1994, this did not result in any action until
February 17, 1995, when the court, after a conference requested
by defendant, ordered both wheels to be delivered to defendant.
At a hearing on February 28, defendant, who had already
received the district's jury plan and the two wheels, sought
juror questionnaires and computer programs used to achieve a
random pick. The court granted access to defendant's counsel to
examine the questionnaires. Defendant sought thirty additional
days in which to prepare his motion to dismiss; the court granted
twenty-three days. No request for additional time was made and
no showing was made of additional information needed.
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The court ruled that defendant had sufficient time to
examine the material, noting that further analysis was unlikely
to lead to new information. We think this judgment well within
the court's discretion.
b. Limiting access to materials. At a pretrial
conference on March 22, 1995, defendant sought computer programs
used to select the master and qualified jury wheels, names,
addresses, and telephone numbers of computer operators and
programmers, documents used to process juror questionnaires, a
copy of the petit and grand jury venires, and the names and
townships of the grand jurors who returned the two indictments.
The court, after noting that production of records used by the
clerk in the jury selection process is limited to what is
necessary to prepare a motion asserting a substantial failure to
comply with the Jury Selection and Service Act, see 28 U.S.C.
1867(d), denied the request, holding that defendant had not
submitted a sufficient basis for production of these additional
materials.
Defendant argues on appeal that his figures had revealed a
flaw in the randomness of Yale's computer program, which was used
to develop the master and qualified wheels. As an example, he
points out that Providence citizens comprised 13.46 percent of
the names on the master wheel but only 8.59 percent of the
qualified wheel. He contends that this discrepancy demanded
further inspection, particularly in light of past glitches in
Yale's computer programming that resulted in the complete
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exclusion of persons from the large communities of Hartford and
New Britain from the qualified wheel and master wheel,
respectively. See United States v. Jackman, 46 F.3d 1240 (2d
Cir. 1995); United States v. Osorio, 801 F. Supp. 966 (D. Conn.
1992).
Such a showing falls far short of demonstrating a likely
substantial noncompliance with the Act. Unlike the situations
described in Jackman and Osorio, substantial numbers of
Providence citizens were on both lists. In light of the
considerable information already made available to defendant and
the extensive memorandum and exhibits that he filed with his
motion to dismiss, the defendant bears a considerable burden of
justifying what would amount to both a considerable intrusion on
people's work and time and substantial further delay of the
trials. The court did not abuse its discretion in refusing
further inspection. See United States v. Davenport, 824 F.2d
1511, 1514-15 (7th Cir. 1987).
c. Evidentiary hearing. Defendant charges the court
with error in denying him an evidentiary hearing on his motion to
dismiss the indictments. Under 28 U.S.C. 1867(d), if a movant
submits a sworn statement asserting facts which, if true, would
impeach the jury selection process, he may present testimony of
the clerk or jury commission. The district court, in denying an
evidentiary hearing, referred at one point to the lack of an oath
before a notary public. But defendant had signed his statement
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"under penalty of perjury," which is sufficient under 28 U.S.C.
1746.4
The court, however, also noted this circuit's strict
adherence to "the gatekeeper prerequisites" of 1867(d). See
United States v. Foxworth, 599 F.2d 1, 3 (1st Cir. 1979); United
States v. Marrapese, 610 F. Supp. 991, 996 (D. R.I. 1985). It
went on to hold that the "purported affidavit is nothing more
than a generalized recitation of self-serving conclusions,
speculation and conjecture."
Our reading of the affidavit confirms this conclusion; its
most salient statements assert discrimination against non-whites,
poor, and certain minorities, and that the master and qualified
wheels were skewed to underrepresent such classes. But defendant
argues that his affidavit refers to "data he has supplied in the
attached Motion to Dismiss" and that the motion to dismiss refers
to "the accompanying Memorandum of Law." The memorandum, signed
by defendant, consists of seventeen pages and derives the facts
it relies on from an appendix of sixteen pages of tables and nine
pages of graphs. The tables, with no indication of source, break
down the population of the various towns and cities into various
categories: income, non-white, occupation, education, language,
ancestry. Pages of data from the 1990 census extend these
4 28 U.S.C. 1746 reads in relevant part, "Wherever . . . any matter is required . . . to be supported . . . by the sworn . . . statement, . . . such matter may, with like force and effect, be supported . . . by the unsworn statement, in writing of such person which is subscribed by him, as true under penalty of perjury . . . ."
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classifications to include employed females, households receiving
public assistance, and persons over 65 possessing no vehicle.
The entire package is so unfocused, so often irrelevant, and
so seldom tied to verifiable sources that to declare that it
should be considered as integrated with and incorporated into the
affidavit, the only document that vouches for truth, would
undercut the whole purpose of the requirement of 1867(d): to
enable a court to review a challenge to jury composition and
"swiftly dispose of it if it fails." Marrapese, 610 F. Supp. at
996 (quoting legislative history). See also Foxworth, 599 F.2d
at 3.
We therefore do not fault the court for its ruling. But we
also note that defendant was not, in all likelihood, prejudiced
by the ruling. The court heard a fairly detailed summary of
expected testimony from the clerk and an extensive offer of proof
of defendant's expert, a candidate for a Ph.D. degree in
statistics and applied mathematics. In addition, it had read all
of the motion papers, the memorandum, and the appendix.
d. Fair cross-section. Defendant's substantive claim is
that non-whites and lower economic classes have been
systematically excluded from the jury selection process in
violation of the Sixth Amendment. Defendant contends that this
underrepresentation results inherently from reliance on voter
registration lists, magnified further by program error or
malfeasance. In support of his theory, he cites data specific to
Providence, which has a non-white population of nearly 30
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percent: the city contains 15.72 percent of the state's
population of 18 and over, yet accounts for only 14.25 percent of
registered voters, 13.46 percent of citizens included in the
master wheel, and 8.59 percent of those in the qualified wheel.
In order to make out a prima facie violation of the fair
cross-section requirement of the Sixth Amendment, the defendant
must show (1) that the group allegedly underrepresented is a
distinctive group in the community, (2) that its representation
in the venires from which juries are chosen is not fair and
reasonable in relation to the total number of such persons in the
community, and (3) that such underrepresentation stems from
systematic exclusion of the group from the jury selection
process. Duren v. Missouri, 439 U.S. 357, 364 (1979).
The district court assumed that the first requirement --
distinctiveness -- was met as to non-whites and low income
persons. We also assume the point. In moving on to the issue of
fair and reasonable representation, we must reject defendant's
first proposition cited above. An assault on voter registration
lists must be based on something more than the general
observation that non-whites and low income people may tend to
register to vote much less than more affluent or white people do.
Davenport, 824 F.2d at 1514-15. Nor do "numerical disparities
resulting from the use of voter-registration lists . . . violate
a defendant's Sixth Amendment rights." United States v. Ireland,
62 F.3d 227, 231 (8th Cir. 1995).
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When we further consider defendant's statistical
presentation, we recognize a significant problem: rather than
count non-whites and low income people on the voter registration
lists, and the master and qualified jury wheels, defendant uses
Providence as a surrogate for both groups. Defendant's premise
is somewhat appealing, but we are not convinced that such an
approach is permissible. Non-whites and low income people may
very well be fairly represented in both wheels whether or not
Providence is. And we have the further doubt created by the
absence of information concerning the proportion of Providence's
non-white (or for that matter its low income) population which
has registered to vote.
But if we overlook these questions, we still face the facts,
as did the district court, that the absolute disparity between
Providence's representation in the voter registration list and
that in the master jury wheel is .79% (14.25% - 13.46%); and that
the absolute disparity in its representation in the master jury
wheel and in the qualified jury wheel is 4.87% (13.46% - 8.59%).
Even the broadest potential comparison, between Providence's
representation in the state's population of 18 and over and its
representation in the qualified jury wheel, yields an absolute
disparity of only 7.13% (15.72% - 8.59%). As we recognized in
Hafen, 726 F.2d at 23, absolute disparities of up to ten percent
are widely conceded not to constitute underrepresentation.5 See
5 Absolute disparity measures the difference between the percentage of a distinctive group in a certain population and the percentage of that group in a subset of that population. In the
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also Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992) (14.1%
"borderline"); United States v. McAnderson, 914 F.2d 934, 941
(7th Cir. 1990) (8% is de minimis); United States v. Pepe, 747
F.2d 632, 649 (11th Cir. 1984) (7.6% "well within . . . limits");
United States v. Butler, 611 F.2d 1066, 1069-70 (5th Cir. 1980)
(under 10% permissible).
We see no reason to depart from this standard. We think it
strikes a correct balance between avoiding egregious
discrimination and becoming enmeshed with statistical approaches
aimed at unrealistic fine tuning.
As for Duren's third prong, the requirement that systematic
exclusion be shown, we have already ruled out reliance
simpliciter on voter registration lists. What would have to be
demonstrated would be either "the use of suspect voter-
registration qualifications or discriminatory administration of
the jury-selection procedure." Ireland, 62 F.3d at 232. But
voter qualification has never been in issue and the only showing
concerning creation of the qualified wheel from the master wheel
is defendant's offer of proof that a court officer would testify
that persons were selected at random. Defendant also raises the
possibility of abuse because names are drawn for new venires from
jury selection context, this figure is generally achieved by subtracting the percentage of a group on the jury wheel from the percentage of that group in the community. Joost has suggested alternative methods, but the absolute disparity test is appropriate where, as here, the allegedly underrepresented group constitutes a very small proportion of the total population. See
United States v. Pion, 25 F.3d 18, 23 (1st Cir. 1994); United
States v. Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984).
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a stable qualified list, and someone, sometime, could make
improper use of such a list. This is too remote to be
substantial.
In short, the challenges to the juries were properly
dismissed.
7. Propriety of Instructions.
Defendant lodges seven claims of error in instructing the
jury. Only three merit specific treatment.
a. The first contention, that the court refused to give
an instruction on the intent necessary to violate the Hobbs Act,
is somewhat mystifying. Defendant states in his reply brief that
both an intent to agree and an intent to execute the agreement
are necessary. But he acknowledged that he was writing without
access to the record. In fact, the precise instruction he seeks
was given by the court.
b. Defendant charges error in the court's instruction
that the jury could consider his invocation of the privilege
against self incrimination in evaluating his testimony. A court
may instruct a jury to go further than the court did in this
case, i.e., that the jury could draw an adverse inference. See
Caminetti v. United States, 242 U.S. 470, 494 (1917); United
States v. Kaplan, 832 F.2d 676, 684 (1st Cir. 1987). Defendant
has confused a situation where, as here, a person (whether a
party or a non-party witness) invokes the Fifth Amendment on a
matter relevant to the issues before the court and the situation
where a person invokes the privilege when asked about a matter
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wholly beyond the scope of the issue at hand, as in United States
v. Nunez, 668 F.2d 1116, 1122-23 (10th Cir. 1982).
c. The court charged that factual impossibility, which
occurs "when extraneous circumstances unknown to the Defendant .
. . prevent the consummation of the intended crime," is not a
defense. Defendant claims that this was not applicable because
he knew at the time that the armored car was not stored in
Woonsocket. But the jury need not have believed him.
d. The other challenges to instructions are even less
weighty. As to two, there was no objection raised after the
instructions. As for the court referring to Tracy as both an
informant and an accomplice, the status of informant alone
justified the charge. And the charge as a whole left no doubt as
to the law that defendant was accused of violating.
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8. Violation of Rule 30.
Fed. R. Crim. P. 30 requires that opportunity be given a
party to object to an instruction out of the hearing and presence
of the jury. As noted above, the jury twice requested that the
court reporter read the notes that she made from the June 29 tape
recording. On the first occasion, the court told the jury first
to listen to the tape and that, if necessary, the reporter could
later read her notes. When asked if he had any "problem" with
that, counsel for defendant stated that the tape, not what the
reporter heard, was the evidence. When the jury made its second
request for the reporter's notes, the court asked counsel if he
wished to say anything. Counsel stated that he had the same
objection. When the jury retired, counsel moved unsuccessfully
for a mistrial on the ground that Rule 30 had been violated.
The government argues that Rule 30 is not applicable, since
the court was not giving any instructions on the law, but merely
making a trial ruling such as requiring a witness to answer a
question. We agree. The entire focus of the rule is on the
instructions on the law given by a judge at the close of the
trial. The objection addressed by the rule is one made to "any
portion of the charge or omission therefrom." The incident at
issue here was not within the compass of Rule 30.
9. Playing excerpts of tapes.
Many tape recordings were made of defendant's conversations
with the detectives. Excerpted portions of eight of these were
allowed to be played to the jury. Defendant objected to the
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playing of each tape, usually on three grounds: authenticity,
defective chain of custody, and lack of completeness. He did not
elaborate on his objections, nor did he suggest additional
portions that should be played. He now asserts that he wanted
the jury to hear how the conversations led up to the excerpted
portions, so that the jury would see that discussions of
particular robberies were just part of "a larger plethora of
stories Joost was telling the agents and that he was the
consummate prevaricator."
Fed. R. Evid. 106 allows a party to supplement part of a
recorded statement when the additional portion "ought in fairness
to be considered contemporaneously with it." The trial court must
have discretion to conduct what "essentially[] becomes a line-
drawing exercise, to be conducted case by case." United States
v. Boylan, 898 F.2d 230, 256 (1st Cir. 1990). When confronted by
flat opposition to playing any excerpts of eight time consuming
tapes, the court can hardly be faulted for not attempting more
sensitive editing.
10. Refusal to recuse sua sponte.
Although defendant made no motion for the judge's recusal,
he contends that 28 U.S.C. 455 required the judge to recuse
herself sua sponte based on an ex parte conference with him. The
underlying circumstances involved the judge's role, before her
appointment to the bench, as Disciplinary Counsel for the Rhode
Island Supreme Court. During the judge's time in that position,
one Freda Salisbury filed a complaint against an attorney.
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Defendant informed the court at the conference that Salisbury was
his mother. According to defendant, Salisbury had harsh words
with someone in the Disciplinary Counsel's office. The complaint
was dismissed and defendant spoke to someone unknown to him in
that office, making strong criticisms of both the Disciplinary
Counsel and the process.
This case was first assigned to another judge. Defendant
goes beyond the record to assert that the judge who heard the
case "had this case reassigned to herself . . . in order to seek
retribution against [defendant] for accusations he had made
against her . . . ." He charged at the ex parte hearing that the
reassignment followed "the same pattern of underhandedness and
harassment [that] has continued since 1963. . . ."
The record reveals no indication that the judge had any
prior knowledge that Salisbury was defendant's mother. Nor was
there any indication that the judge recalled any conversation
with defendant. To argue that the judge should have recused
herself sua sponte on the assumption that a reasonable person
would think that she had schemed to have a case reassigned in
order to obtain revenge based on a long since terminated
disciplinary proceeding, or that she willingly joined a thirty-
two year old conspiracy, is too fanciful for further comment.
11 - 13. Miscellaneous challenges.
Several alleged errors are so insubstantial that they may be
quite summarily addressed. Number 11 is that a motion for
mistrial should have been granted based on a ten-day delay in the
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trial occasioned by the collapse and medical treatment of defense
counsel. The court's narration of the sequence of events and the
considerations underlying the delay completely persuades us of
the propriety of her decisions.
Number 12 attacks a conference between the judge and a
juror, when the juror refused to reenter the jury room. Whether
or not all counsel agreed that the judge should confer alone with
the juror -- as the government contends, with some confirming
indication in the record -- it is clear that no objection was
voiced when the court reporter read to counsel the judge's in
camera conversation with the juror. Although defense counsel
filed a post-trial affidavit saying that the juror had been
coerced by other jurors, there was no evidence of any extraneous
influence and the juror herself did not contact the court. A
jury verdict is not so easily impeached. See United States v.
Norton, 867 F.2d 1354, 1366 (11th Cir. 1989). There was no
error.
No. 13 alleges ineffective assistance of counsel, but, as we
have often held, where the record, as here, does not contain all
the relevant facts, direct appeal is not the route. Absent
"extraordinary circumstances," the proper vehicle is 18 U.S.C.
2255. United States v. Bergodere, 40 F.3d 512, 517 (1st Cir.
1994).
14. Refusal of personal voir dire. Appellant alleges error
in the court's refusal of his request to voir dire personally
prospective jurors. Local Rule 15 provides that at the close of
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examination of jurors by the court, "the court shall afford
counsel an opportunity to further interrogate the jurors."
Although a pretrial order had required each side to submit a list
of all questions that the court was requested to ask of
prospective jurors, defendant did not submit such a list. The
judge conducted the questioning herself and, at the end, asked
defendant for additional suggestions. He offered four: whether
prospective jurors would be prejudiced if they heard disparaging
remarks about the police, whether they would be offended by
obscene remarks, whether they understood and respected the role
of a pro se litigant, and whether they would be adversely
affected if they knew a defendant had a criminal record.
The court correctly refused the last instruction, since it
was not then clear that prior criminal records would be admitted
into evidence. It had interrogated a number of jurors about
their knowledge of and relations with law enforcement personnel.
While not in the precise form advocated by defendant, these
questions accomplished roughly equivalent inoculation against
adverse reaction to disparagement. The court gave a respectful
and fair instruction about pro se representation. What it did
not give was any instruction concerning possible adverse
reactions to obscene language.
It may well be that the court reasoned that defendant's
failure to submit a list of suggested questions stripped him of
the privilege afforded by Rule 15. The government, however,
proffers no reason for noncompliance with a rule that is facially
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mandatory. And defendant justifiably cites United States v.
Diaz-Villafane, 874 F.2d 43, 46 (1st Cir. 1989) ("Once local
rules have been promulgated, lawyers and their clients have a
right to place reasonable reliance on them.") But we simply
cannot find that lack of a question addressed to jurors'
reactions to obscenity
mandates reversal. In the context of the entire case the error
was harmless.
15. Cumulative errors. Appellant argues that even if
individual errors do not mandate reversal, the cumulative impact
of a number of errors does. But our analysis reveals, for the
most part, an absence of error. The few instances in which we
have invoked harmless error fall far short of revealing
"pervasive unfairness or any error or combination of errors that
deprived the defendant[] of due process," United States v.
Brandon, 17 F.3d 409, 456 (1st Cir. 1994).
16. Sentencing Guideline issues.
a. Defendant first argues that his offense level should
have been determined by U.S.S.G. 2B3.1, the robbery guideline,
instead of 2X1.1, the conspiracy guideline. He claims that the
former does not permit added adjustments for intended conduct --
several of which were imposed by the district court -- while the
latter explicitly allows adjustments "for any intended offense
conduct that can be established with reasonable certainty."
Section 2X1.1(c)(1) specifies that when a conspiracy is
expressly covered by another guideline section, the other
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guideline should be applied rather than 2X1.1. In this case we
deal with a Hobbs Act conspiracy under 18 U.S.C. 1951. Until
November 1, 1993, U.S.S.G. 2E1.5 (Hobbs Act Extortion or
Robbery) signalled that a violation of 18 U.S.C. 1951 should be
governed by 2B3.1.
This guideline was deleted as of November 1, 1993, however,
leading the Second Circuit in United States v. Amato, 46 F.3d
1255, 1261 (1995), to conclude that "[t]he deletion of 2E1.5,
with its cross-reference to 2B3.1, deletes the provision of the
Guidelines that provided the `express' reference making 2X1.1
inapplicable." We agree with this conclusion, and reject the
earlier cases cited by defendant. The bare reference to 18
U.S.C. 1951, along with several other statutes, in the
"Statutory Provisions" section of the Commentary in 2B3.1 does
not rise to the level of constituting express coverage. We also
reject defendant's argument that Amato involved a faulty reading
of the significance of the deletion of 2E1.5.
This determination forecloses defendant's argument that
adjustments for specific offense conduct were impermissible here
because they are not allowed under 2B3.1.
b. Defendant challenges the sufficiency of the
evidence for several adjustments to the base offense level. The
first such issue arises from the court's action in increasing his
offense level by six levels for the intended use of a firearm,
which was, although not discharged, to be "otherwise used" as
opposed to "brandished, displayed or possessed."
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2B3.1(b)(2)(B). It is clear from the taped conversations that
defendant instructed the detectives about the possible need for
guns to threaten and perhaps shoot guards at the armored car
facility. Moreover, the very robbery envisaged would inherently
involve the likelihood of confrontation with guards and the use
of weapons. There was no error in making this adjustment.
A similar set of circumstances justified the court in
imposing a two-level increase for restraining a person in the
commission of the offense under 2B3.1(b)(4)(B). Defendant had
outlined how a guard would be caught, handcuffed, and mouth
sealed with duct tape. Restraint of some such fashion was to be
expected in the type of robbery contemplated.
The court also imposed a six-level enhancement under
U.S.S.G. 2B3.1(b)(6)(G) to reflect an intention to inflict a
loss between $2.5 million and $5 million. The vice-president of
the Meehan Armored Car company testified that the value of the
various precious metal shipments stored overnight in the
Woonsocket facility averaged $5 million. These were the
materials that the guards would pick up at 3 a.m. for delivery in
New York City. Defendant would require proof of the exact value
of the shipment on a given day. But his planning did not
pinpoint a date certain. The court was well within reason in
basing the enhancement on the range it chose. Defendant fares no
better in his equal protection argument based on the court's
finding that codefendant Grelle's sentence should reflect a
smaller amount. Grelle's situation was different; the jury could
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not, after all, reach a verdict as to him; the sentences were
truly individualized, reflecting differences in knowledge.
A five-level increase for bodily injury was sufficiently
founded on record statements by defendant; it does not
necessarily overlap with the enhancement based on restraint,
since different actions could be taken against the two guards. A
two-level enhancement for obstruction of justice was based on the
court's conclusion that defendant's testimony was false. While
defendant maintains that he was just an accomplished prevaricator
in his talks with the detectives, he obviously ran the risk that
he would be considered by judge and jury a prevaricator about his
alleged prevarications.
c. Factual Impossibility: a bar to enhancements?
Defendant argues that even if factual impossibility is not a
defense to conspiracy, enhancements should not be imposed because
the substantive offense could not have occurred. His attempt to
distinguish United States v. Chapdelaine, 989 F.2d 28, 35 (1st
Cir. 1993), which involved an attempted robbery that misfired
because the putative robbers arrived after their target truck had
left, does not carry the day. In both Chapdelaine and this case
the defendants were convicted of conspiracy, and in both
completion of the planned action had in fact been rendered
impossible. That no witness contradicted defendant's testimony
that he knew that the armored car had left the facility is of no
consequence; his conviction stemmed from the jury's belief that
he intended to commit the robbery.
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CONCLUSION CONCLUSION
In sum, we have carefully surveyed all of the arguments that
defendant has vigorously and thoroughly made. The trial and
associated proceedings were both complex and demanding on all
concerned. But while undoubtedly not perfect, the trial met the
basic standard of fairness. The judgment is accordingly
AFFIRMED.
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