USCA1 Opinion
February 8, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2260
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE H. BENNETT,
Defendant, Appellant.
____________________
No. 94-2300
UNITED STATES OF AMERICA,
Appellee,
v.
LIONEL LUSSIER,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this Court, issued on February 1, 1996, is amended
as follows:
On page 9, line 7, replace "then had no reason to lie" with "they
had no reason to lie".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2260
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE H. BENNETT,
Defendant, Appellant.
____________________
No. 94-2300
UNITED STATES OF AMERICA,
Appellee,
v.
LIONEL LUSSIER,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this Court, issued on February 1, 1996, is amended
as follows:
On page 8, 3rd line of 2nd paragraph, insert a period after
"1986)" and delete "which appears pretty closely in point."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2260
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE H. BENNETT,
Defendant, Appellant.
____________________
No. 94-2300
UNITED STATES OF AMERICA,
Appellee,
v.
LIONEL LUSSIER,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya and Boudin, Circuit Judges,
______________
and Saris,* District Judge.
______________
____________________
Malcolm J. Barach for appellant Bennett.
_________________
William Maselli for appellant Lussier.
_______________
F. Mark Terison, Assistant United States Attorney, with whom Jay
_______________ ___
P. McCloskey, United States Attorney, was on consolidated brief for
_____________
the United States.
____________________
February 1, 1996
____________________
____________________
*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. George H. Bennett and Lionel
_____________
Lussier were each charged with conspiracy to possess
marijuana with intent to distribute, 21 U.S.C. 846;
carrying or using a firearm during and in relation to a drug
trafficking offense, 18 U.S.C. 924(c)(1); and unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
922(g)(1). The charges stemmed from a bizarre March 1994
episode in which Bennett, Lussier, and Gary King, in an
attempt to avenge a previous drug-related attack and robbery
against mutual friend Ronald Madore, mistakenly entered the
wrong home and assaulted the occupants, ultimately shooting
one of them through the finger.
Madore and King were indicted for various offenses; both
pled guilty, cooperated with the prosecution, and testified
against Bennett and Lussier. After a five-day jury trial in
August 1994, Bennett and Lussier were convicted on all counts
and sentenced, respectively, to 360 and 378 months in prison.
In this consolidated appeal, Bennett and Lussier challenge
their convictions and sentences on many grounds. We address
the more colorable of these claims, setting forth pertinent
facts as necessary.
First. Both Bennett and Lussier challenge the
_____
sufficiency of the evidence supporting conviction on each
count. Neither denies participating in the assault but they
dispute issues of intent and their precise role in the
-2-
-2-
events. Our familiar task on review of sufficiency is to
consider the record as a whole and to determine, viewing the
evidence in the light most favorable to the verdict, whether
a rational jury could find guilt beyond a reasonable doubt.
United States v. Luciano-Mosquera, 63 F.3d 1142, 1149 (1st
_____________ ________________
Cir. 1995).
A conspiracy conviction can be supported by either
direct or circumstantial evidence of an illegal agreement--in
this case to possess marijuana with intent to distribute.
See United States v. Ruiz, 905 F.2d 499, 506 (1st Cir. 1990).
___ _____________ ____
At trial, there was testimony that on the day of the mistaken
raid, Bennett, Lussier, and King, along with two other
friends, drank and discussed seeking revenge for a previous
attack in which mutual friend Ronald Madore, a small-time
marijuana dealer, was beaten and robbed of marijuana, money,
and guns. The group continued their drinking and their
discussion that evening at Madore's house.
Madore testified that Bennett, Lussier, and King planned
to beat up the man Madore suspected was behind the previous
attack, one Wayne Hathorne, take any marijuana he had (along
with any money) and give the marijuana to Madore so he could
sell it and share the proceeds. King's testimony regarding
the plan was less definitive; he stated at one point that
they only intended to beat Hathorne, but elsewhere that both
-3-
-3-
discussed stealing Hathorne's marijuana and giving it to
Madore because "[h]e deals in it."
It is undisputed that shortly after this conversation
the four men--the appellants, Madore and King--left Madore's
house in Bennett's car and drove to a trailer home, which
they mistakenly believed was Hathorne's. While Madore waited
in the car, Bennett, Lussier and King entered the trailer and
terrorized occupants David Wing, Michelle Morin and their
children, physically assaulting Wing and Morin while a gun
was held to Wing's head. There was testimony, described
later in this opinion, that all four men knew of the proposal
to bring a gun and that first King and then Lussier carried
the weapon.
Wing testified that during the attack all three men were
shouting "[w]here is our dope?"; Morin heard them shouting
about drugs but did not specify whether it was particular
individuals or all of them. Wing and Morin, who had no
drugs, tried to convince their assailants they had the wrong
house. These pleas were met with a threat to kill Wing. In
an ensuing struggle for the gun Wing was shot through the
finger. Bennett, Lussier and King immediately fled the scene
without taking anything.
Appellants now insist, as they argued to the jury, that
the plan was merely to beat Hathorne and did not include
seizing drugs, and that much of the testimony of Madore and
-4-
-4-
King was false. But such credibility assessments are for the
jury and nothing here justifies disturbing the jury's
rational conclusion that Bennett and Lussier joined in a plan
to, among other things, steal marijuana and give it to Madore
to sell.
As to the section 924(c)(1) charge of carrying or using
a gun during a drug crime, Lussier concedes the sufficiency
of the evidence against him, while Bennett maintains that
nothing showed that he had carried or used a gun in relation
__
to the marijuana conspiracy. But Bennett was also charged
with aiding and abetting the carry or use offense. Thus, his
conviction can be sustained under 18 U.S.C. 2 if Bennett
knew a firearm would be carried or used by a co-conspirator
in the drug trafficking offense and willingly took some
action to facilitate the carriage or use. Luciano-Mosquera,
________________
63 F.3d at 1150.
At trial there was testimony that the gun used in the
attack was taken from a couch in Madore's house under
circumstances where Bennett could have seen it. Madore
testified that he told the other three they did not need a
gun, but each said he would rather take it. King held the
gun on the ride to Wing's home while sitting in the passenger
seat beside driver Bennett; King said that he did not conceal
the gun in the car, although he conceded he may at some point
-5-
-5-
have placed it in his waistband. It was his impression the
others were aware he had the gun.
From this evidence a jury could find that Bennett knew
that one of his companions was carrying the gun when they
committed the attack, and facilitation is essentially
undisputed since Bennett provided his car to transport
himself, his co-conspirators, and the gun to execute the
raid. In Luciano Mosquera, we upheld an abetting conviction
________________
because the defendant provided a house for meeting where guns
were displayed and discussed, and later used during drug
trafficking crime. 63 F.3d at 1150. In sum, once knowledge
on the part of the aider and abettor is established, it does
not take much to satisfy the facilitation element.
With respect to adequacy of evidence on the felon-in-
possession charge, 18 U.S.C. 922(g)(1), Bennett and Lussier
make only the narrow claim that the evidence failed to
establish that the gun had travelled in interstate commerce,
the jurisdictional element of that offense. The gun was not
introduced into evidence since it had been discarded by King
and Madore. But from direct testimony the jury was entitled
to find that it was a .22 caliber "Single-Six" made by Sterm
Ruger and that Sterm Ruger was an out-of-state manufacturer.
Appellants argue that the gun could have been a replica
fashioned by an in-state gunsmith. This remote possibility
had only the most tenuous evidentiary support, namely, a
-6-
-6-
witness or two said such a gun could be fabricated but at
_____
significant cost. The overwhelming probability was that the
gun was authentic and had been transported--at some time--in
interstate commerce. Certainly the jury's conclusion that
the gun was genuine and had previously traveled in commerce
was not irrational. Cf. United States v. Kirvan, 997 F.2d
___ _____________ ______
963, 966-67 (1st Cir. 1993).
Second. Shortly into its deliberations, the jury
______
requested the testimony of victims Wing and Morin. The trial
judge conferred with counsel and then instructed the jury to
use their recollections, adding that he would provide the
requested testimony if the jury still found it necessary.
After further deliberations the jury asked for only the
direct testimony of Wing and Morin. Over defense objections,
the judge then had the direct testimony of Wing and Morin
read back to the jury. Immediately after the read-back, the
judge asked jurors as a group whether they would also like to
hear the cross or other testimony of the two witnesses; none
did. Defense counsel moved for a mistrial, which was denied.
The appellants concede that it would have been within
the trial judge's discretion to have read to the jury all of
___
Wing and Morin's testimony; but they say that providing only
the direct examination was prejudicial--indeed,
unconstitutional--because the unread cross-examination
responses of both witnesses were at "striking variance" with
-7-
-7-
their testimony on direct. No examples of such variances are
mentioned. No case law is provided to suggest that the jury
may not select what it wishes to hear.
The trial judge's decision whether or not to grant a
request to read back testimony requested by a jury is
reviewed for abuse of discretion, United States v. Akitoye,
______________ _______
723 F.2d 221, 226 (1st Cir. 1991); and we think that this is
equally true of the judge's decision whether the jury should
be made to hear additional, related testimony that the jury
made clear it did not need to rehear. Of course, such
discretion is not unlimited. And certainly the trial judge
should exercise great care when the testimony the defense
counsel wants the jury to hear is the cross-examination of
the very witnesses whose full direct testimony has just been
reread.
But no inflexible rule exists that the cross must always
be read. United States v. Wright-Barker, 784 F.2d 161, 174
______________ _____________
(3d Cir. 1986). In plenty of cases, the direct testimony of
another witness might be far more relevant in assessing the
_______
testimony of the witness whose testimony the jury requested.
Each case must be decided on its facts, and it is the
appellant's burden to show that the trial judge acted
unreasonably. Here on appeal, with ample leisure to compare
the direct and cross of Wing and Morin, appellate counsel has
still made no specific showing as to why it was unfair in
________ __
-8-
-8-
this case for the district court to omit cross-examination
_________
that the jury did not want.
Because this is a criminal case, we have read the direct
and cross-examination of the two witnesses in order to assure
___
ourselves that the district court's action did not cause any
miscarriage of justice. We have found nothing to suggest
that the cross-examination was vital or contained more than
the customary measure of minor variations or inconsistencies.
Prior to requesting the read-backs, the jury could quite
reasonably have concluded that it credited these witnesses'
direct testimony--they had no reason to lie--and then sought
the read-back to refresh the jury's own recollection on some
specific points.
There is no merit in two other related claims of error.
Appellants now say that the jury was confused or bewildered
by the trial judge's offer to have the cross reread; but the
trial judge found otherwise. We have read the colloquy and
find no reason to doubt the trial judge's conclusion.
Appellants also say that the jury should have been cautioned
not to give the direct testimony special weight, e.g., United
____ ______
States v. DeSoto, 885 F.2d 354, 363 (7th Cir. 1989), but no
______ ______
such request was made at trial.
Third. In closing, the prosecutor referred several
_____
times, without objection, to the "selective focus" of the
defense. In rebuttal, the prosecutor described a defense
-9-
-9-
argument as a "diversion" that "doesn't pass the laugh test"
and again referred to the defense's "selective focus."
Defense counsel immediately objected to the "diversion"
remark. After the summations, defense counsel requested a
curative instruction that the jury disregard these remarks to
the extent that they "degraded legitimate defenses." The
judge found the comments unobjectionable and gave only the
standard instruction that arguments of counsel are not
evidence.
Appellants now maintain that both of the prosecutor's
remarks improperly denigrated defense counsel as well as the
defense strategy. The prosecutor is expected to refrain from
impugning, directly or through implication, the integrity or
institutional role of defense counsel. United States v.
_____________
Boldt, 929 F.2d 35, 40 (1st Cir. 1991). But "selective
_____
focus" remarks were part of a larger metaphor used by the
prosecutor in urging the jury to "act as a camera" and keep
"focused" on the evidence. In context, the remarks merely
echo the truism that lawyers highlight helpful facts and
retreat from unfavorable ones.
The prosecutor edged closer to trouble in his rebuttal
remarks by calling a defense argument a "diversion" that does
not "pass the laugh test." But summations in litigation
often have a rough and tumble quality; in fact, one of the
defense summations here twice referred to the government's
-10-
-10-
"desperation" to prove charges "they can't prove." We do not
think that the prosecutor's remarks on this case crossed the
line. See generally United States v. Ortiz-Arrigoitia, 996
_____________ _____________ ________________
F.2d 436, 440-41 (1st Cir. 1993), cert. denied, 114 S. Ct.
_____ ______
1366 (1994). Nor was the refusal to give the specially
requested instruction reversible error; indeed, a jury would
not have made much sense of the requested language.
Fourth. At trial Bennett and Lussier sought access to a
______
police interview report with a government witness, Pete
McFarlane, a friend of the appellants who was with them
before and immediately after the attack. The interview
report, the defendants believed, might have some bearing on
McFarlane's testimony that Lussier admitted in the post-
attack meeting that he was holding the gun when Wing was
shot. Defendants urged that the interview report might be
discoverable under Fed. R. Crim. P. 16, the Jencks Act, 18
______
U.S.C. 3500, or Brady v. Maryland, 373 U.S. 83, 87 (1963).
_____ ________
The trial judge reviewed the report in camera and concluded
_________
that it was not discoverable.
On appeal, all three bases for disclosure are urged.
Rule 16 does not apply since its pertinent language is
directed to statements made by a defendant to a known
government agent, United States v. Burns, 15 F.3d 211 (1st
_____________ _____
Cir. 1994), and a statement by Lussier or any co-conspirator
to McFarlane immediately after the event is not even arguably
-11-
-11-
in that category. Appellants suggest that Burns demands more
_____
of the government than the bare minimum prescribed in the
rule; but that is not what Burns says. Compare 15 F.3d at
_____ _______
215-16 n. 2. The Jencks Act requires inter alia production
__________
of writings that are "substantially verbatim" recitals of
pre-trial statements made by a government witness and that
relate to the subject of the witness' trial testimony. 18
U.S.C. 3500(e)(2). We have reviewed the interview report
at issue which contains only a few isolated direct quotations
(none pertinent here) and which is neither structured nor
phrased as a verbatim report. In our view the trial court
did not commit clear error in refusing to treat the six-page
report as a substantially verbatim recordation of the
interviewee's own words. See United States v. Foley, 871
___ ______________ _____
F.2d 235, 238-39 (1st Cir. 1989).
Lussier offers a clever gloss on the Jencks Act, urging
that any simple statement in an interview report--e.g.,
____
"Lussier held the gun"--must because of its brevity be
essentially verbatim and thus discoverable under the Act.
But this attempt to divide up the document has been rejected
even in the case of isolated direct quotations, Foley, 871
_____
F.2d at 238-39. We note also that the report (a formal typed
form) was clearly made after the interview and not during it.
United States v. Consolidated Packaging, 575 F.2d 117, 129
_____________ _______________________
(7th Cir. 1978) (requiring a contemporaneous recordation).
-12-
-12-
The Brady claim is more difficult for the government
_____
because the interview report does say that Lussier carried
the gun, but attributes that information to Bennett rather
than Lussier. The report might thus appear to have some
impeachment value, possibly qualifying it as Brady material
_____
under United States v. Bagley, 473 U.S. 667, 677 (1985). The
_____________ ______
inference is pretty limited in this case: not only was the
meeting a confusing one but the interview report does not
exclude--and may even invite--the inference that Lussier
acquiesced in the suggestion that he had been carrying the
gun.
In all events, even if we assume that the report should
have been produced under Brady, the failure to do so was
_____
harmless. At trial, both Bennett and King testified that
Lussier had held the gun; and while Bennett had a personal
interest in so testifying, King did not. Further, if
McFarlane had been "impeached" by the report in question, the
jury would have been told, once again, that Lussier had held
the gun. At the post-attack meeting, where Lussier was
present, Bennett had no reason to lie and good reason not to
do so.
Fifth. The last noteworthy issue concerns the aiding
_____
and abetting instructions. Bennett and Lussier were charged
in both firearms counts--the possession and the use or carry
counts--both as principals and on an aiding and abetting
-13-
-13-
theory under 18 U.S.C. 2. As to both gun offenses, Bennett
and Lussier say that the aiding and abetting instruction
permitted the jury to convict without the required scienter
(for example, even if the jury believed that the assistance
was unintentionally rendered).
On the possession count, the jury was told that a
defendant could be convicted if he "knowingly possessed the
firearm . . . or aided and abetted such possession"; parallel
language was used on the companion count ("knowingly used or
carried a firearm or aided and abetted the use or carrying a
firearm"). The appellants complain that the word "knowingly"
was not used immediately before "aided and abetted" in each
instance; but this is irrelevant because "aiding and
abetting" was separately defined in the instructions, which
must be read as a whole. United States v. Fontana, 948 F.2d
_____________ _______
796, 801 (1st Cir. 1991).
In the aiding and abetting definition itself, the
district court charged in pertinent part that "the Government
must prove beyond a reasonable doubt that a defendant
associated himself with the venture, participated in it as
something that he wished to bring about, and sought by his
actions to make it succeed." This language obviously imports
a scienter element ("wished to bring about"; "sought by his
actions"), and it is the precise language approved by this
-14-
-14-
court in prior cases. E.g., United States v. Loder, 23 F.3d
____ _____________ _____
586, 590-91 (1st Cir. 1994).
But our journey is not quite over. The Loder language,
_____
which serves reasonably well in most situations, may not
perfectly cover abnormal ones. Here, a potential ambiguity
exists: the term "venture" in Loder is intended as catch-all
_____
for the notion of a crime committed by another ("the
principal") for which the government aims to hold the
defendant responsible as an aider or abettor, making the
defendant "punishable as a principal." 18 U.S.C. 2. See
___
generally 1 Sand, et. al, Modern Federal Jury Instructions
_________ _______ _________________________________
para. 11.01 (1995). Where only a single crime is involved,
confusion is unlikely under Loder's language because there is
_____
only one venture.
Here, however, the defendants were charged in the first
count with a drug possession conspiracy. In theory the term
"venture," used only as part of the general definition of
aiding and abetting, might lead a jury to think that the
venture in question was the drug conspiracy and not the
possession or use-and-carry offense. If so, the jury might
also think that it could convict the defendant who did not
___
personally possess or use or carry a gun, so long as the
aider or abettor "wished to bring about" the drug possession
"and sought by his actions to make [that venture] succeed."
-15-
-15-
The problem, needless to say, is not that any element of
the offense was omitted from the charge, cf. United States v.
___ _____________
Lopez, No. 94-2277, slip op. at 12 (1st Cir. Dec. 14, 1995),
_____
but that a possible ambiguity inhered in the instruction.
The defendants made several timely objections to the aiding
and abetting instructions at trial, although their proposed
solutions were of questionable use. But any ambiguity in the
charge was irrelevant in Lussier's case (the only evidence,
obviously accepted by the jury, was that he was the
principal), and it was harmless in Bennett's case.
Given the evidence, Bennett could only have been
convicted as an aider and abettor. But--as already related--
Madore, who supplied the gun, testified that bringing it had
been discussed in advance and that Bennett, Lussier and King
all said they wanted it brought; King, who sat next to
Bennett in the car, testified that he carried the gun in his
lap without concealment for at least part of the ride.
Unlike Bennett, who claimed to have had no knowledge of the
gun, King and Madore were not on trial. If there was an
ambiguity in the instruction, it did not affect the result.
Appellants' remaining claims have been considered but do
not require discussion. In a few instances, Bennett has made
claims that are not fully developed, such as his cursory
attack on the intoxication instruction, or beyond our
jurisdiction (e.g., the refusal of a downward departure).
____
-16-
-16-
Other claims made by appellants are properly presented but
seem to us hopeless on the facts (e.g., that perjured
____
testimony was knowingly presented) or the law (the claim that
section 922(g)(1) is unconstitutional). Scarborough v.
___________
United States, 431 U.S. 563 (1977) (discussed in United
______________ ______
States v. Lopez, 115 S. Ct. 919 (1995)).
______ _____
The case for appellants here has been well presented by
counsel, and we understand the practical pressure on lawyers-
-especially in criminal cases--to resolve doubts in favor of
including doubtful claims along with stronger ones. But
cases with difficult issues now crowd the dockets. At least
in opinion writing, the court's time is best reserved for
colorable claims. Cf. McIntosh v. Antonio, 71 F.3d 29, 37
____________ _______
(1st Cir. 1995).
Finally, Bennett moved earlier under Fed. R. App. P.
28(i) to incorporate Lussier's brief generally as to "those
facts, issues and arguments . . . that may inure to [his]
benefit" and to adopt particular arguments in Lussier's
brief. The motion, previously denied subject to
reconsideration, is effectively moot since none of Lussier's
claims have been accepted. But future counsel using Rule
28(i) should be aware of the need to connect the arguments
adopted with the specific facts pertaining to the movant.
United States v. Saccoccia, 58 F.3d 754, 763-64 (1st Cir.
_____________ _________
1995).
-17-
-17-
Affirmed.
________
-18-
-18-