United States v. Shea , 211 F.3d 658 ( 2000 )

United States Court of Appeals
For the First Circuit
No. 98-1567
No. 99-1111
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY M. SHEA,
Defendant, Appellant.
____________________
No. 98-1568
No. 99-1110
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL K. O'HALLORAN
Defendant, Appellant.
____________________
No. 98-1569
No. 99-2009
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICK J. McGONAGLE,
Defendant, Appellant.
____________________
____________________
No. 98-1570
No. 99-1109
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN G. BURKE,
Defendant, Appellant.
____________________
No. 98-1767
No. 99-1204
UNITED STATES OF AMERICA,
Appellee,
v.
MATTHEW McDONALD,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Lynch and Lipez,
Circuit Judges.
Bruce E. Kenna, by appointment of the court, with whom
Kenna, Johnston & Sharkey, P.A. was on consolidated brief for
appellant Patrick J. McGonagle.
Robert L. Sheketoff, by appointment of the court, with whom
Sheketoff & Homan was on consolidated brief for appellant
Stephen Burke.
Judith H. Mizner, by appointment of the court, for appellant
Matthew McDonald.
Michael J. Iacopino, by appointment of the court, with whom
Brennan, Caron, Lenehan & Iacopino was on consolidated brief for
appellant Michael K. O'Halloran.
Michael K. O'Halloran on supplemental pro se brief.
Bjorn Lange, Assistant Federal Defender, Federal Defender
Office, for appellant Anthony M. Shea.
David A. Vicinanzo, First Assistant United States Attorney,
with whom Paul M. Gagnon, United States Attorney, Jean B. Weld,
Donald Feith and Terry Ollila, Assistant United States
Attorneys, were on brief for the United States.
May 2, 2000
BOUDIN, Circuit Judge. This appeal grows out of a
second superseding indictment returned in New Hampshire on May
1, 1997, charging six defendants with a variety of federal
offenses related to a string of bank and armored car robberies
that took place between 1990 and 1996. The trial began on
September 16, 1997, one defendant pled guilty during trial, and
the remaining five defendants completed the three-month trial,
were convicted and are appellants in this court: they are
Anthony Shea, Stephen Burke, Matthew McDonald, Patrick McGonagle
and Michael O'Halloran.
The evidence presented at trial included a wealth of
exhibits as well as testimony by over 150 witnesses. In
substance, the evidence showed that Shea, McDonald and one Dick
Donovan had carried out a series of bank robberies beginning in
1990; that by 1992 Stephen Burke and O'Halloran had joined the
scheme, together with Burke's brother John (who pled guilty at
trial). From 1992 onward, the group concentrated on armored car
robberies (with an occasional bank robbery) in the Northeast and
Florida. The most notorious incident was a Hudson, New
Hampshire, armored car robbery in August 1994, in which both
armored car drivers were kidnaped and executed.
The government's case was substantially aided by the
testimony of Steven Connolly, who was a longtime friend of two
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of the defendants and an acquaintance to the others. He had
been recruited into the scheme in March 1994 and provided
testimony, including descriptions of defendants' conduct in
various of the offenses, their techniques, and admissions made
by individual defendants. A number of other government
witnesses, some unwilling, also described admissions by
individual defendants to various of the robberies.
The government charged two armored car robberies--those
that had occurred in New Hampshire--as substantive offenses, and
it offered proof of a number of other bank or armored car
robberies as predicate acts or evidence to support the charges
that some or all of the defendants were engaged in a
racketeering enterprise under the RICO statute, a RICO
conspiracy, conspiracy to rob banks, carjacking, and several
different kinds of firearms offenses. 18 U.S.C. §§ 371,
922(g)(1), 922(g)(3), 924(c), 1951, 1962(c)-(d), 2113(d), 2119
(1994). The two New Hampshire robberies, including the August
1994 Hudson robbery and another that occurred in Seabrook in May
1993, were the subject of extensive evidence.
About two months into the trial, the district court
(with the government's agreement) granted a judgment of
acquittal on several counts and one racketeering act as to
certain of the defendants and one racketeering act as to all of
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the defendants. The remaining counts, minus particular
racketeering acts and overt acts as to which no evidence was
presented, were eventually submitted to the jury under a
redacted indictment now containing 14 counts and on December 22,
1997, the jury convicted all five defendants on all submitted
charges, save that it acquitted McGonagle of carjacking in
relation to the Hudson robbery.
All five of the defendants were convicted of conspiracy
to commit armed robberies and of committing and conspiring to
commit the Hudson robbery. All of the defendants except
McGonagle were convicted of operating a racketeering enterprise,
engaging in a racketeering conspiracy, carjacking in connection
with the Hudson robbery, and of various firearms offenses.
Shea, Burke and O'Halloran were also convicted of committing and
conspiring to commit the Seabrook armored car robbery.
On May 8, 1998, the court imposed sentences on each of
the defendants. Each was sentenced to life imprisonment, except
for McGonagle, who was sentenced to 360 months. The defendants
have now appealed, presenting a series of claims concerning
sufficiency of evidence as to certain counts, pretrial and trial
rulings, the composition of the jury and the instructions given
to it, and sentencing and other post-trial matters.
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Sufficiency. On several claims, individual defendants
say that the evidence was insufficient for a reasonable jury to
convict, and that their motions for a judgment of acquittal
should have been granted. Review of such claims is de novo,
United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir. 1997), and
the evidence is considered in the light most favorable to the
prosecution. United States v. Echeverri, 982 F.2d 675, 677 (1st
Cir. 1993). By this standard, the evidence in each case was
adequate on the contested counts (and on many others it was
overwhelming).
McGonagle does not contest that the evidence was
sufficient to convict him of bank robbery and conspiracy to
commit the Hudson robbery, but he says that the evidence was
insufficient to tie him to a broader conspiracy to commit a
series of armed robberies--a crime of which all defendants were
convicted. However, Connolly testified that Shea had identified
McGonagle as one of the conspirators in the broader conspiracy
and, in addition to the ample evidence of McGonagle's role in
the Hudson robbery, there is evidence that linked him to a
separate armored car robbery by the conspirators almost eight
months before the Hudson robbery. At least two witnesses, in
addition to Connolly, testified to McGonagle's role.
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McDonald, joined by O'Halloran and Burke, says that the
government failed to prove the existence of a single
racketeering enterprise, racketeering conspiracy, or a broad
conspiracy to commit armed robbery; at best, he contends, the
jury could only have found smaller enterprises or conspiracies
with a changing cast of conspirators. No magic formula exists
for determining when a set of jointly committed crimes adds up
to an overarching conspiracy or enterprise; the courts tend to
look for common goal, overlap among participants, and a measure
of interdependence, United States v. Portela, 167 F.3d 687, 695
(1st Cir.), cert. denied, 120 S. Ct. 273 (1999); and a general
scheme may exist "notwithstanding variations in personnel and
their roles" over time. United States v. Bello-Perez, 977 F.2d
664, 668 (1st Cir. 1992).
Here, the evidence supported, and the jury necessarily
found, that while the cast of characters changed over time,
there was nevertheless one overarching conspiracy. Shea was
involved from the beginning, and he and Burke were involved in
the largest number of crimes. There was also evidence that
McDonald was involved in the conspiracy from its inception and
that he and O'Halloran were substantially involved in the
overarching racketeering conspiracy and enterprise and a broad
conspiracy to commit armed robbery. Despite an interruption in
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McDonald's role caused by his temporary imprisonment on a parole
violation, and O'Halloran's somewhat late arrival in the scheme,
enough evidence existed of a common and continuing aim, similar
methods of operation, continuity in personnel, and
interdependence to permit the court to send the separate counts
to the jury and the jury to find a RICO enterprise, a RICO
conspiracy, and a broad conspiracy to rob banks and armored
cars.
McDonald was convicted of three different gun charges
(felon-in-possession, drug user-in-possession, and use and
possession during a violent crime) relating to the Hudson
armored car robbery. He says that the evidence was insufficient
on these counts. However, constructive possession is
sufficient. United States v. Wight, 968 F.2d 1393, 1397-98 (1st
Cir. 1992). Here the evidence showed that the defendants as a
group were regularly armed. In addition, a government witness
testified that two days before the Hudson robbery, McDonald said
that he was going to take part in it and displayed a handgun at
the same time; and at least six weapons were used in the Hudson
robbery.
O'Halloran, who was convicted of firearms charges in
connection with both the Hudson and Seabrook robberies, makes a
similar claim that the evidence was insufficient. Again, the
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constructive possession theory was available to the government
and was supported by the evidence. In addition, there was
testimony by government witnesses to support the view that
O'Halloran had himself possessed weapons in both of the
robberies. The lower court did not err in sending the firearm
counts to the jury.
Specific evidence. We turn next to objections to
particular pieces of evidence, starting with Shea's objection to
the use at trial of a number of items seized in a January 1990
search of his Charlestown residence (including weapons, a
bulletproof vest, camouflage clothing, and masks). The search
was based on a warrant secured through an affidavit given by a
federal agent; its gist was information furnished by an
informant, whose prior information had been reliable, that on
three occasions over the six weeks prior to the affidavit the
informant had seen a sawed-off shotgun at the residence where
Shea was present. The affiant also said that Shea had no
required federal registration for possessing a sawed-off
shotgun.
The district court relied on the good faith exception
to the exclusionary rule, United States v. Leon, 468 U.S. 897,
922-25 (1984), in finding that reliance on the warrant was
objectively reasonable, even if the application was defective.
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We review probable cause determinations de novo, Ornelas v.
United States, 517 U.S. 690, 699 (1996), and the same standard
applies to Leon determinations, United States v. Procopio, 88
F.3d 21, 28 (1st Cir.), cert. denied, 519 U.S. 1046 (1996).
Shea says that there is a lack of detailed information about the
circumstances in which the informant saw the shotgun and,
further, that there is no explicit basis for the assertion in
the affidavit that Shea resided at the address in question.
The reliability of the informant was amply established
by the described record of prior assists, and we see no reason
in these circumstances why the informant's straightforward
description of seeing the shotgun in the apartment in Shea's
presence on three different recent occasions needed to be
embellished by further detail. Admittedly, the affidavit does
not make clear how the informant (or the affiant) knew that Shea
resided at the apartment, which might or might not be viewed as
the necessary link in the chain. To the extent it is such a
link, the failure to spell out the basis for associating Shea
with the address is a minor error (and not infrequently so,
Procopio, 88 F.3d at 28); given that the informant said he had
seen Shea on the premises on three occasions, the gap in proof
is sufficiently small, if a gap there is, that Leon amply
applies.
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Shea also challenges the use of evidence derived from
a search of his vehicle on August 11, 1995, during Shea's
attempted but aborted robbery of a bank in Wakefield,
Massachusetts--which Shea carried out independently of the
enterprise and conspiracies charged in this case. The evidence
seized included weapons and other paraphernalia. Shea also
objects to fragments of testimony, elicited primarily by co-
defendants, suggesting Shea's connection with the Wakefield
incident. Shea says that the cumulative effect was to retry him
for the Wakefield attempted robbery after he had already been
convicted of it in a separate trial, see United States v. Shea,
150 F.3d 44 (1st Cir.), cert. denied, 525 U.S. 1030 (1998), and
that this violated his constitutional rights (e.g., under the
Double Jeopardy Clause).
Evidence of "other crimes" relevant to proving the
crime charged is not subject to the double jeopardy or other
constitutional objections made by Shea, United States v. Felix,
503 U.S. 378, 386-87 & n.3 (1992), nor is it subject to
limitations on use of character evidence, if it is offered for
some purpose other than to prove character. See Fed. R. Evid.
404(b). Here, the weapons seized from Shea during the Wakefield
attempt were directly relevant to the racketeering and
conspiracy charges because the evidence showed that they were
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previously used by Shea and Burke in a July 28, 1995, bank
robbery at Fall River, Massachusetts, which is one of the
predicate acts in the racketeering count charged in the present
case.
It is less clear how the government justified its
introduction of other evidence seized from Shea's car (e.g., a
walkie-talkie and police scanners) apparently not linked to a
charged act or offense (the government's brief is suspiciously
silent on this point). But Shea's objections at trial seemingly
did not pinpoint the relevance objection, Fed. R. Evid.
103(a)(1), and in any event the evidence, even if improperly
admitted, was harmless in light of the guns and the other
substantial evidence offered against Shea. See United States v.
Benavente Gomez, 921 F.2d 378, 386 (1st Cir. 1990).
A few brief testimonial references to Shea's connection
to the Wakefield incident were elicited at trial, primarily by
co-defendants seeking to support their multiple conspiracies
defense (by showing that Shea engaged in robberies on his own or
with other persons who were not defendants in this case).
However, these references were fleeting, and the district judge,
who had sought to restrict references to Wakefield, did not err
in refusing to grant a mistrial on this basis.
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Shea also claims error in the district court's refusal
to suppress statements made by Shea, incriminating himself in
the Hudson robbery, to one James Ferguson, with whom Shea was
incarcerated in 1995 in connection with the Wakefield robbery.
At that time, Ferguson was a government informant wearing a
listening device and, because Shea was then represented by
counsel on the Wakefield robbery, he says that the eliciting of
incriminating statements as to the Hudson robbery violated his
Sixth Amendment right to counsel during the custodial
interrogation.
The government's answer, which is adequate, is that at
the time the statements were obtained, Shea had not been charged
with the Hudson robbery and his right to counsel with respect to
that robbery had not yet "attached." See McNeil v. Wisconsin,
501 U.S. 171, 175-76 (1991); United States v. LaBare, 191 F.3d
60, 64 (1st Cir. 1999). This argument is an accepted counter to
such claims, United States v. Nocella, 849 F.2d 33, 36-38 (1st
Cir. 1988), and there is no indication that the Supreme Court
contemplates an expansion of the Sixth Amendment right to
counsel.
In a separate argument, McDonald challenges the
district court's refusal to suppress DNA evidence that derived
from blood, saliva and hair samples taken from him pursuant to
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a December 29, 1994 warrant. The DNA was matched with DNA from
saliva left at the scene of a February 1992 robbery in Newton,
Massachusetts, which was one of the racketeering acts charged in
the indictment. McDonald says that the affidavit supporting the
warrant application failed to establish probable cause and
rested on material misrepresentations.
Aside from the alleged misrepresentations, the evidence
described in the warrant was more than sufficient to establish
probable cause to believe that McDonald was involved in the
robbery. The story as to the alleged misrepresentation is
complicated: the affidavit relied on a supposed match between
a fiber found on McDonald's clothing and the fibers from the
carpet of one of the vehicles used in the Hudson robbery.
McDonald says the match was overstated or utterly irrelevant.
But we need not resolve the issue, since the remaining
connections between McDonald and the crime were ample to support
the affidavit without regard to the fiber evidence. Franks v.
Delaware, 438 U.S. 154, 171-72 (1978).
Burke makes an argument, adopted by McDonald, Shea, and
O'Halloran, that the district court erred in permitting a
government expert (Dr. Harold Deadman) to testify as to matches
between DNA from blood samples of Burke and McDonald and several
pieces of physical evidence found at different crime scenes.
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The attack on the Deadman testimony rested on this expert's
failure to note one faint allele dot in a sample of sweat taken
from a baseball cap found in a getaway vehicle, the DNA of which
Dr. Deadman matched to Burke's blood sample. This, in turn, led
to an arguable contradiction in Deadman's initial explanation of
his basis for the match, although Dr. Deadman then provided a
defense of his position at trial.1
The district court conducted a lengthy hearing on
admissibility of the DNA evidence under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993), and held that
any flaws in Dr. Deadman's application of an otherwise reliable
methodology went to weight and credibility and not to
admissibility. Most circuits that have spoken have agreed with
this approach, see, e.g., United States v. Johnson, 56 F.3d 947,
1 At the pre-trial Daubert hearing, Dr. Deadman testified
that the DNA testing he performed on the sweat from the cap
matched Stephen Burke's blood sample. His opinion was based on
his belief that only a "B" allele dot was present in the sweat
along with his knowledge that Burke's blood sample was typed as
a "BB." On cross-examination, he indicated that, as a general
matter, he would not usually conclude that a match was made if
a visible weak dot of a different type was mixed in. Subsequent
to this testimony, an expert for the defense, Dr. Randell Libby,
noted the presence of a faint "A" allele dot that Dr. Deadman
had not previously noticed, and argued that such a mixture
prevented a conclusion of a match to an individual typed as
"BB." Dr. Deadman acknowledged the existence of the weak "A"
allele dot and his failure initially to identify it. But he
stated that the presence of a mixture would not--in light of the
faint intensity of the "A" allele dot--alter his conclusion of
a match with Stephen Burke's DNA.
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952-53 (8th Cir. 1995), relying on the view that "cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof" is the proper challenge to
"shaky but admissible evidence." Daubert, 509 U.S. at 596. The
district court did not abuse its discretion in admitting the
Deadman evidence. United States v. Lowe, 145 F.3d 45, 50-51
(1st Cir.), cert. denied, 525 U.S. 918 (1998).
A final dispute as to tangible evidence concerns a
latent thumb print matching defendant Burke that was allegedly
lifted from a truck leased by McGonagle and used in the Hudson
incident. The print was dusted but not lifted during the first
inspection of the truck (it was concealed because a door was
open), and Burke argued at trial that the print later lifted
came from a different truck and that the government, by
returning the truck to the owner after its collection of prints
was complete, had prevented him from proving this definitively.
Although Burke calls the return of the truck
"spoliation," the government explained both the delay in lifting
the print and the return of the truck, and there is no basis for
imputing bad faith to the government--a usual precondition to a
spoliation claim in "missing evidence" cases. United States v.
Femia, 9 F.3d 990, 994 (1st Cir. 1993). There may be
extraordinary cases where the government's loss of evidence
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requires some remedy despite good faith, cf. United States v.
Alston, 112 F.3d 32, 35 (1st Cir.), cert. denied, 522 U.S. 999(1997), but police do not usually preserve intact a site from
which prints are lifted and Burke was free to argue his wrong
truck theory based on photographs that were available.
Hearsay. At trial, various friends or associates of
the defendants testified to incriminating out-of-court
statements made by individual defendants; these were, of course,
admissions as to the makers, Fed. R. Evid. 801(d)(2)(A), but
hearsay as to the other defendants unless--as the district court
held--they were admissible against the other defendants as co-
conspirator statements, Fed. R. Evid. 801(d)(2)(E), or under the
exception for statements against penal interest, Fed. R. Evid.
804(b)(3). Appellants claim that the rule-based preconditions
were not met or that the Confrontation Clause provided an
independent basis for limiting admissibility.
Only Shea argues on appeal that certain of the
statements admitted were not in furtherance of the conspiracy
and therefore not within the co-conspirator exception. The
statements in question, which we need not recite, were seemingly
made for such purposes as recruiting new members into the
conspiracy or passing information between conspirators. The
district court did not commit clear error, United States v.
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Patterson, 644 F.2d 890, 894 (1st Cir. 1981), in finding that
these statements were, more probably than not, made during and
in furtherance of the conspiracy. United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).
Similarly, the statements challenged by Shea, McDonald,
McGonagle, and O'Halloran that were admitted as against their
penal interest fell within that rule or at least the district
court committed no error in so finding under then-existing
precedent. See Williamson v. United States, 512 U.S. 594, 599-
601 (1994); United States v. Barone, 114 F.3d 1284, 1296 (1st
Cir.), cert. denied, 522 U.S. 1021 (1997). The more important
question is whether anything is altered by the Supreme Court’s
subsequent decision in Lilly v. Virginia, 119 S. Ct. 1887(1999). Lilly disallowed the out-of-court statement of the
defendant’s brother who, under police questioning, conceded that
he was involved in a shooting but identified the defendant as
the triggerman; the court reasoned that the statement did not
fall within a "firmly rooted" exception to the hearsay rule and
failed under the Confrontation Clause. Id. at 1899.
Lilly’s main concern was with statements in which, as
is common in police-station confessions, the declarant admits
only what the authorities are already capable of proving against
him and seeks to shift the principal blame to another (against
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whom the prosecutor then offers the statement at trial). 119 S.
Ct. at 1901. While Lilly’s full reach may be unclear--there was
no single "majority" opinion--it does not in our view affect the
admissibility of the statements at issue here: all those
identified in this case were made to friends or companions, not
to the police, and were not of the "blame shifting" variety.
Barone, 114 F.3d at 1302.
The district court also admitted these statements on
the alternative ground (so far as the Confrontation Clause is
concerned) that they were attended by "particularized guarantees
of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980).
The district judge referred specifically to Roberts and the
assessment required by Barone to determine whether a statement
falls within a firmly-rooted exception to the hearsay rule.
Thus, even if Lilly is more far reaching than we think likely,
it would not affect the outcome here.
Miscellany. There remain various other trial
objections which we take largely in chronological order. Four
of the defendants argue that the jury-selection process was
flawed because the district court failed to empty and refill the
master jury wheel on a timely basis. The Jury Selection and
Service Act of 1968, 28 U.S.C. § 1861 et seq. (1994), requires
that "emptying and refilling" be done periodically, "the
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interval for which shall not exceed four years." Id. §
1863(b)(4). The aim is to ensure that the jury comes from a
"fair cross section of the community" determined by reasonably
recent data. Id. § 1861.
In the New Hampshire jury selection plan, new names are
collected every four years following a general election from the
latest New Hampshire voter registration lists and from current
driver license records; but to provide time to collect and
organize, the plan provides for emptying and refilling every
four years "within nine months" following the general election
in November. In this case, the chronology is as follows:
•June 16, 1993: list compiled based on 1992
elections
•August 1, 1993: list put into effect
•July 24, 1997: list used to mail summonses
to jurors for defendants’ jury
The defendants say that the list used to select their
jury had existed for more than four years prior to the date that
it was used to select their jury (June 16, 1993 to July 24,
1997) and so violated the statute’s four-year provision. The
district court has read the statute’s four year provision to
require that the wheel be emptied and refilled within four
years, and that the list used for defendants’ jury had been used
for less than four years (August 1, 1993 to July 24, 1997). The
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issue is what the statute means, an issue as to which review is
de novo. United States v. Royal, 174 F.3d 1, 5 (1st Cir. 1999).
The district court’s reading is literally accurate--the
names in the wheel had not been used for more than four years--
but it does not meet a related concern, namely, that the data
itself be reasonably fresh when put into use. The jury in this
case was selected based on data more than four years old (the
November 1992 election lists). But the New Hampshire plan
reasonably answers this concern by requiring that the wheel be
refilled within nine months after the general election, and the
statute does not preclude a reasonable delay between the
collection of the data and its insertion into the wheel.
Defendants also assert that the "random" selection
requirement of the statute was frustrated because the use of
data more than four years old necessarily reduced the number of
both younger jurors and jurors who had recently relocated to New
Hampshire. But for sound practical reasons the Supreme Court
has essentially rejected the "young persons" claim, Hamling v.
United States, 418 U.S. 87, 137-38 (1974); and while later data
might include more recent immigrants to New Hampshire, there is
nothing in the circumstances of this case to show that recent
immigrants to the state were the kind of distinctive group whose
slightly reduced representation comprised a violation of the
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statute or the Sixth Amendment. Duren v. Missouri, 439 U.S.
357, 364 (1979).
The next jury selection issue is Shea’s objection, now
joined by other defendants, that one of the jurors should have
been dismissed, primarily because she expressed fear of the
defendants during a pair of voir dires conducted after jury
selection. Removal of a juror for cause is normally a fact-
sensitive matter on which the district judge’s on-the-scene
judgment deserves great weight. See Williams v. Drake, 146 F.3d
44, 50 (1st Cir. 1998); United States v. Gonzalez-Soberal, 109
F.3d 64, 69 (1st Cir. 1997). We have reviewed the voir dire
transcripts and, without recounting the facts in detail, are
satisfied that the district court did not abuse its discretion.
Cf. Gonzalez-Soberal, 109 F.3d at 69-70.
Finally, defendants' claim that the district court
personnel acted outside their authority in dismissing those
potential jurors who were acquainted with counsel in this case
is without merit. So long as the district court exercises
general oversight, the delegation of excusal tasks to court
personnel has long been approved of and encouraged. See United
States v. Candelaria-Silva, 166 F.3d 19, 31 (1st Cir. 1999);
United States v. Maskeny, 609 F.2d 183, 193-94 (5th Cir. 1980);
United States v. Marrapese, 610 F. Supp. 991, 1000-01 (D.R.I.
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1985). The record shows that the trial judge approved of the
court personnel excusing jurors on this basis; accordingly,
there was no violation of the Act.
The defendants’ next claim of error relates to the
prosecutor’s opening statement. In outlining the evidence, the
prosecutor began not chronologically but with the most dramatic
incident, the Hudson robbery and murder of the guards; his
description was somewhat emotional; and, in the district judge’s
view, the prosecutor did not make it sufficiently clear (despite
the court's admonitions) that the prosecutor's description of
various events was a preview of intended evidence rather than an
expression of personal belief. Finding that the latter offense
was not willful, the district court limited its response to
strong cautionary instructions.
O’Halloran, joined by other defendants, says that the
district court should, as requested at the time, have granted a
mistrial based on the opening statement. However, the district
court’s finding on willfulness is not clear error, the
cautionary instructions were repeated and emphatic, and the
district judge was best placed to assess the overall effect on
the jury. The discretion accorded a judge on whether to grant
a motion for mistrial is very broad and it was not abused here.
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See United States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994),
cert. denied, 513 U.S. 1119 (1995).
During trial, counsel for three of the defendants--
Burke, O’Halloran and McDonald--sought on several occasions to
cross- examine government witnesses to show that Shea had
engaged in robberies independently of the others. Their
asserted purpose was to show that the evidence made out at best
multiple conspiracies for different robberies and not the
overarching conspiracy and enterprise charged in the indictment.
In particular, these defendants sought to show that Shea had
been involved in and convicted for the robbery at Wakefield, a
crime not involving the other defendants.
The district court refused to allow the other
defendants to prove that Shea was arrested and convicted of the
Wakefield robbery; seemingly, the court thought the evidence of
little relevance to the multiple-conspiracy defense but highly
prejudicial to Shea. On appeal, the three defendants complain
that their right to cross-examine was unduly restricted. In the
alternative, they say that the district court should have
granted them a severance from Shea, which they requested, to
permit them to develop this defense without prejudicing Shea.
The government says that the defendants now raising the
claim did not press the multiple conspiracy argument before the
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jury and have therefore waived their present claims, but this is
not fully persuasive: the defendants might have argued the
point to the jury if they had been allowed to develop the
evidence. A better response, also offered by the government, is
that they had no right to insist on cross-examining beyond the
scope of the direct examination or beyond matters affecting
credibility, Fed. R. Evid. 611(b); United States v. McLaughlin,
957 F.2d 12, 17 (1st Cir. 1992), but (among other possible
replies) this would leave the denial of the severance request to
be explained.
In our view, showing that Shea was convicted for a
separate robbery in the same time frame had some relevance to
the defense but not much; Shea’s sideline ventures did not
prevent him from also engaging in a broad conspiracy with the
defendants, and proof of the latter turned primarily on how the
jury assessed the relationship of the crimes in which the
defendants participated. We are thus dealing with one primary
episode that is marginal as to the three defendants’ defense but
highly prejudicial as to Shea.
The right of cross-examination is important but can be
reasonably limited for all kinds of reasons. United States v.
Boylan, 898 F.2d 230, 254 (1st Cir.), cert. denied, 498 U.S. 849(1990). Similarly, severance is not an automatic entitlement
-28-
merely because it would give the defendant seeking it a marginal
advantage--at the cost of multiple trials. Zafiro v. United
States, 506 U.S. 534, 539 (1993). Here, the evidence in
question was of very limited use and the reasons for restricting
cross-examination and refusing severance were potent. Tested by
the abuse of discretion standard that applies in both instances,
United States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991)
(severance), cert. denied, 502 U.S. 1079 (1992); Boylan, 898
F.2d at 254 (cross-examination), the district court is easily
sustained.
Finally, two of the defendants say that they were
denied proper counsel. The first of these claims arises out of
McDonald’s request, made approximately 30 days before trial, for
a new appointed counsel. Most of the reasons given by McDonald
for his request are too slight to require mention; but one rises
somewhat above this level: four months before trial, a partner
of McDonald’s lawyer was appointed Attorney General of New
Hampshire. Noting that the state was not a party to the federal
prosecution, the district court found McDonald’s concern
insufficient to justify new counsel.
Objectively, no conflict was created by the appointment
but one can imagine situations where, whatever the objective
reality, a client might reasonably feel that his relationship
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with his counsel was compromised. We doubt that this is such a
case but need not decide the point. It is enough that the
partner’s appointment occurred four months before trial,
McDonald reserved his concern until it was too late to appoint
new counsel without a severance or a delay in a trial already
postponed more than once, and no evidence existed of a total
breakdown in communication between lawyer and client. United
States v. Allen, 789 F.2d 90, 92-93 (1st Cir.), cert. denied,
479 U.S. 846 (1986).
The other claim regarding counsel is Burke's assertion
that his lawyer was ineffective; Burke says that counsel should
have moved for a judgment of acquittal on the felon-in-
possession counts because no prior felony conviction was proved.
In fact, there was testimony as to Burke's record from his
parole officer and in any event his counsel reasonably
stipulated to a prior conviction to avoid more detailed proof.
The claim is thus frivolous.
Sentencing. The defendants have raised several issues
related to sentencing. The first is formally an attack on the
conviction of four of the defendants (all except McGonagle), for
carjacking under 18 U.S.C. § 2119, but its significance pertains
to sentencing. The count, framed in the language of the statute
as it existed at the time of the crime, charged the four with
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the carjacking incident to the Hudson robbery. To satisfy the
"by force and violence" requirement of the statute, the count
alleged the assault and murder of the guards.
In describing penalties, the carjacking statute
provided that "if death results," imprisonment for a term of
years "up to life" shall be imposed (the possibility of a death
sentence was later added). At the time of the trial, we had
treated the "if death results" provision as a sentencing matter
to be resolved by the judge. United States v. Rivera-Gomez, 67
F.3d 993, 1000 (1st Cir. 1995). Accordingly, the district judge
did not instruct the jury to find "death" as an element of the
carjacking offense but did at sentencing impose life
imprisonment on the four defendants on this count.
Thereafter, the Supreme Court ruled in a five-to-four
decision that the carjacking statute should be read to create
three separate crimes: one where no physical harm occurred, one
for "serious bodily injury" and one "if death results." Jones
v. United States, 119 S. Ct. 1215, 1218-28 (1999). The
defendants now argue that their life sentences on this count
must be set aside for lack of instructions and a jury finding
that death resulted. In retrospect, the failure to instruct
on the "if death results" requirement was "error" under Jones,
but it was patently harmless. The government introduced at
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trial photographs of the dead guards and testimony from the
state's assistant deputy medical examiner, who participated in
and testified about the autopsies. Witnesses testified that
each of the four defendants had admitted that the guards were
killed during the robbery, and the defendants did not contest
the point. In the words of Neder v. United States, 119 S. Ct.
1827, 1837 (1999), we conclude "beyond a reasonable doubt that
the omitted element was uncontested and supported by
overwhelming evidence," so the error in instruction was
"harmless." See United States v. Perez-Montanez, 202 F.3d 434,
442-43 (1st Cir. 2000).
Another claim that involves both convictions and
sentence is that of McDonald. He was convicted under separate
counts of being a felon-in-possession and a drug user-in-
possession with respect to the same firearms, 18 U.S.C. §
922(g)(1), (3), and sentenced concurrently to life imprisonment
on the former and 120 months on the latter. Although he made no
such objection in the district court, he now says that the two
counts are multiplicitous (that is, charge the same offense
twice) and that his conviction and sentence twice for the same
crime violate the Double Jeopardy Clause.
Since each count involves an element that the other
does not, the Double Jeopardy Clause would not bar multiple
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convictions and punishments under the familiar Blockburger test.
United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989)
(citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
However, as a matter of statutory construction, several circuits
have held that Congress did not intend to inflict multiple
punishments where a drug-using, former felon possessed a
firearm. United States v. Munoz-Romo, 989 F.2d 757, 759 (5th
Cir. 1993); cf. United States v. Winchester, 916 F.2d 601, 606-
08 (11th Cir. 1990). The government concedes this point and
says that the shorter sentence should be vacated (along with the
statutory $50 assessment).
However, the government says that the two convictions
should stand because no objection was made to the indictment on
multiplicity grounds and the objection is therefore waived.
Fed. R. Crim. P. 12(b)(2). Whether there is a multiplicity
objection is a nice question and arguably depends on attributing
a further refinement in intent to Congress; it is clear enough
that the government is entitled to get both theories before the
jury, whether in one count or two. In all events, we do not
treat the multiple "convictions" as clear error.
The law is somewhat clearer that multiple "punishments"
are not proper, although the matter was not previously addressed
by this court; and while no objection was made at sentencing in
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the district court, we accept the government's view that relief
should be granted as to the sentence. Since the sentence was
concurrent in any event, the only practical effect of following
the government's recommendation is to remit the $50 special
assessment, but at least the law on this issue will be clear in
this circuit in the future.
A different double jeopardy claim is made by Shea to
his separate convictions and sentences for carjacking, 18
U.S.C. § 2119, and the use of a firearm during a violent crime,
18 U.S.C. § 924(c). Shea was sentenced, consecutively, to life
imprisonment for the first crime and to 240 months imprisonment
on the second. The carjacking in question was the Hudson
incident and the firearm conviction was for use of a firearm
during the same robbery. The claim is foreclosed in this
circuit by United States v. Centeno-Torres, 50 F.3d 84, 85 (1st
Cir.), cert. denied, 516 U.S. 878 (1995), so we do not discuss
it further.
In a pure sentencing issue, O'Halloran and three other
defendants (all except McGonagle) object to the court's
computation of their sentences insofar as the court relied on a
cross-reference to the sentencing guideline for first-degree
murder. To understand the objection requires some background.
All of the defendants were held liable for various offenses
-34-
pertaining to the Hudson robbery and, for purposes of
calculating a guidelines sentence, these offenses were grouped
as closely related counts under U.S.S.G. § 3D1.2(b).
Ordinarily, the offense level for the group would be the base
offense level applicable to the highest level crime in the
group, modified to reflect any specific offense characteristics.
Id. § 3D1.3(a).
However, the robbery guideline, U.S.S.G. § 2B3.1, also
provides that "[i]f a victim was killed under circumstances that
would constitute murder under 18 U.S.C. § 1111 had such killing
taken place within the territorial or maritime jurisdiction of
the United States, apply § 2A1.1 (First Degree Murder)." Id. §
2B3.1(c)(1). The federal murder statute classifies murder as an
"unlawful killing . . . with malice aforethought" and then goes
on to describe as "murder in the first degree" a set of murders
perpetrated in various ways, including "murder . . . committed
in the perpetration of . . . robbery." 18 U.S.C. § 1111(a). 2
2
18 U.S.C. § 1111(a) provides that "[m]urder is the unlawful
killing of a human being with malice aforethought. Every murder
perpetrated by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated killing; or
committed in the perpetration of, or attempt to perpetrate, any
arson, escape, murder, kidnaping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, burglary, or robbery;
or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other than
him who is killed, is murder in the first degree."
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The district court ruled that this was such a felony murder,
making applicable to all of the defendants the very high
guideline level for first-degree murder.
On first reading, section 1111 might appear to be
unclear and open to the construction that, for first-degree
murder, there must be both an unlawful killing "with malice
aforethought" (under the first sentence) and satisfaction of one
of the other conditions (under the second sentence) such as the
commission of that murder in the perpetration of a robbery.
However, the case law makes clear that the second sentence is
definitional, that the statute was intended to adopt the felony
murder rule, and for a stated felony the "malice" element is
satisfied by the intent to commit the unlawful felony.3
The four defendants argue that the district court had
no basis for finding "malice aforethought" and wrongly shifted
to the defendants the burden of showing that they did not
intentionally cause the death of the guards. However, under the
felony murder rule adopted by section 1111's second sentence,
the killing of the guards in the Hudson robbery was first-degree
3 See United States v. Nichols, 169 F.3d 1255, 1272 (10th
Cir.), cert. denied, 120 S. Ct. 336 (1999); United States v.
Harris, 104 F.3d 1465, 1474 (5th Cir. 1997); United States v.
Poindexter, 44 F.3d 406, 409-10 (6th Cir.), cert. denied, 514
U.S. 1132 (1995); United States v. Thomas, 34 F.3d 44, 48-49 (2d
Cir.), cert. denied, 513 U.S. 1007 (1994).
-36-
murder by those who perpetrated the robbery, regardless of who
pulled the trigger or any individual intent. The district
judge's comments relating to burden appear, in context, to have
been an offer to consider a downward departure based on a
showing that any individual defendant did not intend to commit
murder.4
In the end, the district court did grant a downward
departure to McGonagle on the ground that the jury, in
acquitting him of the carjacking, had established that he was
not present when the murders were committed and bore some lesser
degree of responsibility--a ruling that the government has not
appealed. The other four defendants appeal from the district
court's failure to grant them a downward departure, see U.S.S.G.
§ 2A1.1, cmt. n.1; but the denial of a departure is unreviewable
unless the court misapprehends its authority. 18 U.S.C. §
3742(e), (f); United States v. Serrano-Osorio, 191 F.3d 12, 15
(1st Cir. 1999).
In addition to prison sentences, the district court
imposed a $250,000 fine on each of the five defendants. The
guidelines provide that fines should ordinarily be imposed
"except where the defendant establishes that he is unable to pay
4
After referring to the need for "an affirmative showing" by
defendants, the court continued "[n]ow if you want a departure,
you bear the burden of showing why a departure is justified."
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and is not likely to become able to pay any fine." U.S.S.G. §
5E1.2(a). Here, the defendants reported no appreciable assets
but the district judge was not persuaded, pointing out that
substantial robbery proceeds had not been accounted for and that
the defendants might also earn significant sums through
interviews and the sale of literary rights. Their objection on
appeal is confined to the claim that they lacked an ability to
pay.
The district court's determination on ability to pay
is a factual one reviewed only for clear error, United States v.
Favorito, 5 F.3d 1338, 1339 (9th Cir. 1993), cert. denied, 511
U.S. 1006 (1994), and the burden was on defendants to prove
their inability to pay. United States v. Peppe, 80 F.3d 19, 22
(1st Cir. 1996). Here, the fact that the defendants had stolen
more than the amount of their fines and failed to account for a
substantial portion of the money is enough for us to sustain the
district court. That the defendants denied that they had any
money created at best a credibility contest and the court was
free to disbelieve the self-interested and general denials
offered by the defendants.
New trial motion. The final issue pressed on this
appeal is the defendants' claim that the district court erred in
denying their second motion for a new trial. The background for
-38-
the motion was this: John Burke, Stephen Burke's brother,
pleaded guilty during trial to conspiracy to commit a robbery in
Seabrook, New Hampshire. 18 U.S.C. § 1951. The government
agreed to dismiss the remaining counts against John Burke at
sentencing. John Burke then testified for the government at
trial.
After the remaining five defendants were convicted, the
government moved to dismiss the conspiracy charge to which John
Burke had pled guilty, and then for unrelated reasons sought to
withdraw the motion. Based on what they learned, the defendants
then filed a new trial motion asserting that before John Burke
had testified against them, he and the government had discussed
the possible dismissal of the federal charge against him as a
reward for helpful testimony. This, said the defendants, was
dramatic information that should have been disclosed under Brady
v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405
U.S. 150 (1972), as useful impeachment evidence.
In fact, nothing in the record indicates that the
prosecutor discussed with John Burke prior to his testimony the
possible outright dismissal of the federal charge against him.
Rather, it appears that John Burke had only the usual
generalized expectation that the government would consider some
form of leniency or other assistance to him. On cross-
-39-
examination of John Burke at trial, his hope and desire for some
kind of reward was amply established. However, in the post-
trial proceedings, the government conceded to the district judge
that it had ruled nothing out and was always free to ask for
dismissal of all charges or any other benefit.
In a written order resolving the new trial motion, the
district court said that the government "although not compelled
by Brady" should as a matter of "better practice" have revealed
the possible dismissal option "if, before [John] Burke
testified, the prosecutors even remotely considered the
possibility that they would seek to dismiss all charges against
[him] . . . ." However, the district judge ruled that even if
this obligation existed, a new trial was not warranted because
it was not "reasonably probable" that the disclosure would have
altered the verdict. Strickler v. Greene, 119 S. Ct. 1936, 1952
(1999).
Without deciding whether the government was obligated
to disclose more than it did (the facts are somewhat
idiosyncratic), we find that the district court did not abuse
its discretion in denying a new trial. United States v. Wright,
625 F.2d 1017, 1019 (1st Cir. 1980). The evidence against the
defendants was substantial and rested on a number of witnesses,
much forensic evidence, and a series of admissions and co-
-40-
conspirator statements. Further, John Burke was extensively
impeached by questioning about his expectations of lenient
treatment, as well as other subjects that might fairly cast
doubt on his veracity. The outcome would not have been changed
by "the possibility" of a reward even more generous than usual.
The judgments of conviction and sentence as to each of
the defendants is affirmed except that McDonald's sentence on
the drug-user-in-possession count, 18 U.S.C. § 922(g)(3), is
vacated and remanded to the district court with instructions to
merge the sentence with that imposed for the felon-in-possession
count, id. § 922(g)(1), and with no separate mandatory
assessment fee.
It is so ordered.
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