USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-2062
UNITED STATES,
Appellee,
v.
RALPH DE MASI,
Defendant, Appellant.
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No. 92-2064
UNITED STATES,
Appellee,
v.
RONALD MARTEL,
Defendant, Appellant.
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No. 92-2065
UNITED STATES,
Appellee,
v.
ROBERT PAPA,
Defendant, Appellant.
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No. 92-2066
UNITED STATES,
Appellee,
v.
FRANCIS BONASIA,
Defendant, Appellant.
____________________
No. 92-2142
UNITED STATES,
Appellant,
v.
FRANCIS BONASIA,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. Senior District Judge]
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____________________
Before
Selya, Boudin, and Stahl,
Circuit Judges.
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Seth M. Kalberg, Jr. for appellant DeMasi; Cornelius H. Kane, Jr.
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for appellant Martel; Paul J. Garrity for appellant Papa; and J.
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Michael McGuinness, with whom McGuinness and Parlagreco, was on brief
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for appellant Bonasia.
Timothy Q. Feeley, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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____________________
October 26, 1994
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STAHL, Circuit Judge. Following a seventeen-day
STAHL, Circuit Judge.
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criminal trial, defendants Francis Bonasia, Ralph DeMasi,
Ronald Martel, and Robert Papa were convicted by a jury of
various charges stemming from the attempted armed robbery of
a Brink's armored truck. On appeal, DeMasi, Martel, and Papa
together, and Bonasia individually, raise a series of issues
including denial of a suppression motion and challenges to
sufficiency of the evidence and various portions of the jury
instructions. Bonasia separately assigns error to the denial
of severance motions and an evidentiary ruling. The
government cross-appeals from the district court's decision
in sentencing Bonasia to depart downward from the Sentencing
Guidelines. We affirm the district court on all issues
raised by the defendants. At the same time, we find that the
district court incorrectly interpreted the Sentencing
Guidelines in fashioning Bonasia's sentence. We therefore
vacate Bonasia's sentence and remand for resentencing.
I.
I.
__
Background
Background
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Because the defendants challenge the sufficiency of
the evidence supporting their convictions, we recite the
facts in the light most favorable to the verdict. United
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States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert.
______ __________ _____
denied, 114 S. Ct. 409 (1993).
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-3-
Near the end of July 1991, Federal Bureau of
Investigation ("FBI") agents learned that, sometime in late
June, DeMasi and Martel had rented a summer campsite at the
Pines Campground in Amesbury, Massachusetts. Subsequently,
during the noontime hour on the five Tuesdays preceding
Tuesday, September 10, 1991, FBI agents observed Martel at
the parking lot of the Port Plaza Shopping Center in
Newburyport, Massachusetts. Throughout that summer, a
Brink's armored truck made a scheduled stop between noon and
1:00 p.m. on Tuesdays at the Shawmut Bank in the Port Plaza
Shopping Center. Martel's visits to the Port Plaza parking
lot corresponded with the scheduled stop of the Brink's
truck. DeMasi accompanied Martel on four of these five
visits, missing only the visit on Tuesday, August 27, 1991.
Papa and defendant George Pinto1 joined Martel and DeMasi at
the parking lot during the visits on August 20, and September
3, 1991.
Bonasia was also present at the Port Plaza parking
lot on Tuesday, September 3, 1991. While at the parking lot,
he met separately with both DeMasi and Martel. A
surveillance photograph taken during his meeting with Martel
depicts Bonasia and Martel standing together looking toward
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1. Pinto was tried and convicted along with the other
defendants and joined in the consolidated appeal. Pinto,
however, died on September 15, 1992, and his appeal was
subsequently dismissed.
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4
the Shawmut Bank. Afterwards, Bonasia remained in the
parking lot and observed the Brink's truck as it made its
regularly scheduled stop at the Shawmut Bank.
On the evening of August 26, 1991, at around 9:45
p.m., an FBI agent observed Martel in the back seat of an
automobile, registered to Bonasia's wife, stopped in front of
the Shawmut Bank in the Port Plaza Shopping Center. Driving
the automobile was an older white male who fit Bonasia's
general physical description. After the vehicle stopped,
DeMasi left the car, walked over to the bank and peered
inside one of its windows. Later that evening, the vehicle
was again observed at DeMasi and Martel's campsite.
Bonasia's own gray Buick was observed entering and exiting
the Pines Campground several times a week over the course of
the summer, including at least three different times on
August 30, 1991.
At approximately 8:15 a.m. on September 10, 1991,
DeMasi and Martel left the Pines Campground. At 9:30 a.m.,
they were observed standing next to a dark green cargo van
which was located on the far side of the Market Basket Mall
directly adjacent to the Port Plaza Shopping Center. At this
time, FBI agents identified the license plates on the van as
stolen. Shortly before noon, DeMasi and Martel met with
Bonasia in the Port Plaza parking lot. A series of
photographs taken contemporaneously shows Bonasia first
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5
walking away from DeMasi's automobile, then turning back
toward DeMasi, and finally looking down at his watch. That
same morning, Papa and Pinto were also observed and
photographed driving through the Port Plaza parking lot in a
separate vehicle.
After meeting with Bonasia, DeMasi and Martel
returned to the green van parked on the far side of the
Market Basket Mall, where they were joined by Papa and Pinto.
The four defendants exited their automobiles, leaving them
unlocked and with the keys in the ignitions.2 The green
van, with Papa driving, was next observed entering the Port
Plaza parking lot just prior to the time for the expected
arrival of the Brink's armored truck. Upon entering the
parking lot, Papa drove the green van away from the direct
route to the Shawmut Bank and towards where Bonasia was
parked. Bonasia had just moved his gray Buick from a more
crowded area of the parking lot to a location more easily
accessed by the green van.
Papa pulled the van adjacent to Bonasia's gray
Buick and paused. Bonasia then leaned forward in his seat
and gave Papa a "thumb's up" signal. After receiving this
signal, Papa drove the green van away from Bonasia's
automobile towards the Shawmut Bank.
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2. Papa and Pinto also left the trunk of their automobile
unlocked and open. Moreover, each of the two cars had stolen
license plates affixed over their regular plates.
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6
Shortly thereafter, FBI agents stopped the green
van and arrested DeMasi, Martel, Papa, and Pinto. At the
time of the arrests, DeMasi was wearing brown cotton gloves,
a nylon stocking pulled down over his forehead, and a bullet-
proof vest. Pinto was wearing similar gloves, a nylon
stocking, and had a pair of handcuffs in his waistband.
Martel also wore gloves, and a third nylon stocking was found
in the back of the van next to where he had been sitting. In
the front seat next to where Papa had been sitting was a blue
ski mask and an additional set of gloves. An operating
portable scanner rested on the empty front passenger seat. A
loaded semi-automatic nine millimeter Uzi carbine was found
behind the front seat, and two loaded semi-automatic nine
millimeter pistols and a loaded six-shot revolver were found
in the rear compartment of the van.
At approximately the same time, Bonasia, who had
been walking from a pay phone towards his gray Buick, was
arrested by a Rhode Island State Trooper. At the time of his
arrest, Bonasia was approximately five to eight feet from his
automobile. Immediately after the arrest, an FBI agent
standing near Bonasia's automobile observed a pair of
binoculars on the front passenger seat inside the gray
Buick.3
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3. Subsequent to Bonasia's arrest, FBI agents conducted two
warrantless searches of Bonasia's automobile. Bonasia
successfully moved prior to trial to suppress all evidence
-7-
7
Defendants were tried together before a jury.
Bonasia, DeMasi, Martel, and Papa were convicted of
conspiring and attempting to commit bank robbery, in
violation of 18 U.S.C. 371 and 18 U.S.C. 2113(a), and
conspiring and attempting to affect interstate commerce by
robbery, in violation of the Hobbs Act, 18 U.S.C. 1951.
Additionally, all defendants were convicted on four counts of
using or carrying a firearm in violation of 18 U.S.C.
924(c). Following the return of the verdicts on these
charges, additional evidence was offered, and the jury
subsequently found DeMasi, Martel, and Papa guilty on three
counts of violating the felon-in-possession statute, 18
U.S.C. 922(g)(1).
II.
II.
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Discussion
Discussion
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A. Alleged Pre-Trial Errors
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1. Suppression Ruling
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Our review of the decision whether to grant or deny
a suppression motion is "plenary." United States v. Sanchez,
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943 F.2d 110, 112 (1st Cir. 1991). We defer, however, to a
district court's factual findings if, on a reasonable view of
the evidence, they are not clearly erroneous. United States
______________
v. Beltran, 917 F.2d 641, 642 (1st Cir. 1990).
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____________________
obtained from these searches.
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8
DeMasi, Martel, and Papa challenge the district
court's refusal to suppress evidence seized from the green
van at the time of their arrests.4 They concede that the
FBI had probable cause to make the arrests and that, if their
arrests were lawful, the van's search and the seizure of
evidence were also lawful. Defendants contend, however, that
the arrests violated the Fourth Amendment because the FBI
effected them without a warrant. They maintain that probable
cause arose no later than early on the morning of the
arrests, when the FBI identified the green van that DeMasi
and Martel had visited as bearing stolen license plates, and
that the government should have procured an arrest warrant at
that time. Ultimately, they argue that the government's
delay and ultimate failure to obtain a warrant negates the
legality of their arrests and the subsequent search and
seizure of evidence. We disagree.
Defendants' argument rests on the proposition that
the government's allegedly "predesigned" and "improper" delay
somehow invalidated the defendants' otherwise proper arrests.
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4. Bonasia also contests the failure to suppress the
evidence seized from the green van. It is, however,
axiomatic that Fourth Amendment rights are personal to the
individual. Sanchez, 943 F.2d at 112. Bonasia was not
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present in the van during the arrest, nor does he own the van
or claim any possessory rights in the seized evidence.
Hence, Bonasia has no legitimate expectation of privacy on
which to base his claim. See United States v. Sepulveda, 15
___ _____________ _________
F.3d 1161, 1194 (1st Cir. 1993), cert. denied, 114 S. Ct.
_____ ______
2714 (1994).
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9
The Supreme Court, however, has refused to attach
significance to the fact that the government had ample time
to obtain a warrant but declined to procure one. See United
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States v. Watson, 423 U.S. 411, 423-24 (1976). Specifically,
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the Court stated that "[t]he necessary inquiry . . . [is]
not whether there was a warrant or whether there was time to
get one, but whether there was probable cause" at the time of
the arrest. Id. at 417. Indeed, the government in Watson
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conceded that it had more than sufficient time to have
obtained a warrant prior to the arrest. Id. at 414; id. at
___ ___
426 (Powell, J., concurring) (as much as six days elapsed
between time probable cause arose and the arrest). Hence,
the Supreme Court has directly rejected the underpinnings of
defendants' argument.
The Constitution does not require a warrant to
effect an arrest in a public place. Id. at 423-24.
___
Moreover, law enforcement agents need only possess reasonable
suspicion that a criminal activity is occurring in order to
stop a moving automobile to investigate. United States v.
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Kimball, 25 F.3d 1, 6 (1st Cir. 1994). Here, it is
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undisputed that the FBI agents had probable cause to stop the
green van when it entered the Port Plaza Shopping Center.
The arrests of DeMasi, Martel, and Papa were effected in a
public place, the middle of the shopping center parking lot.
Accordingly, no arrest warrant was required, and whether or
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10
not the FBI agents could have obtained one prior to making
the arrests is irrelevant.
2. Severance Rulings
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We now turn to Bonasia's challenges to the district
court's denial of his motions for severance. "Trial courts
are afforded considerable leeway in determining severance
questions." United States v. Pierro, No. 93-1313, slip op.
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at 8 (1st Cir. July 27, 1994). "We reverse the decision to
deny a motion for severance only upon a showing of strong
prejudice, demonstrating a manifest abuse of discretion that
deprived the defendant of a fair trial." United States v.
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Nason, 9 F.3d 155, 158 (1st Cir. 1993), cert. denied, 114 S.
_____ _____ ______
Ct. 1331 (1994). Prejudice, in this context, "means more
than just a better chance of acquittal at a separate trial."
United States v. Boylan, 898 F.2d 230, 246 (1st Cir.)
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(quotations omitted), cert. denied, 498 U.S. 849 (1990).
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Bonasia maintains that severance was necessary to
avoid the substantial prejudice he suffered due to the
spillover effect from evidence admitted at trial against his
codefendants, the effect of codefendant DeMasi's pro se
___ __
representation, and the impact resulting when several members
of the jury saw his codefendants enter the courtroom in
handcuffs.5 We are not persuaded.
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5. Bonasia perfunctorily raises several additional arguments
in support of his severance appeal, such as "antagonistic
defenses" existing between him and his codefendants, his
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11
Bonasia's spillover claim fails because he has not
met his burden of showing substantial prejudice. Though it
is true that substantial evidence admitted at trial dealt
with him only indirectly, this factor alone does not amount
to grounds for reversal. "It is well settled that `[e]ven
where large amounts of testimony are irrelevant to one
defendant, or where one defendant's involvement in an overall
agreement is far less than the involvement of others,' the
court of appeals must be `reluctant to second guess severance
denials.'" United States v. O'Bryant, 998 F.2d 21, 26 (1st
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Cir. 1993) (quoting Boylan, 898 F.2d at 246). Moreover,
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"[w]here evidence featuring one defendant is independently
admissible against a codefendant, the latter cannot
convincingly complain of an improper spillover effect." Id.
___
Bonasia, like his codefendants, was charged with conspiring
and attempting to rob the armored Brink's truck. Thus, even
if the government had tried Bonasia separately, nearly all of
the evidence presented here would have been admissible in a
separate trial against him to prove the object of the
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inability to obtain exculpatory testimony and his inability
to sit with his counsel at trial. Bonasia failed to raise
these issues at trial in support of his motions for
severance. Moreover, on appeal, he fails to adequately
explain how he was prejudiced by them. We therefore deemed
them waived. See United States v. Lilly, 13 F.3d 15, 17-18
___ _____________ _____
(1st Cir. 1994) (failure to raise arguments below results in
waiver) and United States v. Zannino, 895 F.2d 1, 17 (1st
___ ______________ _______
Cir.) (perfunctorily raised arguments waived), cert. denied,
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494 U.S. 1082 (1990).
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12
conspiracy and the attempted robbery. Therefore, Bonasia has
not met his burden of showing that he suffered strong
prejudice.6
Bonasia's complaint of prejudice resulting from
DeMasi's pro se representation is equally without merit. A
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codefendant's pro se representation is not, without more,
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grounds for severance; a defendant must additionally show
that strong prejudice resulted from the representation.
United States v. Tracy, 12 F.3d 1186, 1194 (2d Cir. 1993);
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Person v. Miller, 854 F.2d 656, 665-66 (4th Cir. 1988), cert.
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denied, 498 U.S. 1011 (1989); see also United States v.
______ ___ ____ ______________
Cross, 928 F.2d 1030, 1039-40 (9th Cir.) (no "compelling
_____
prejudice" resulted from codefendant's pro se
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representation), cert. denied, 112 S. Ct. 594 (1991), and
_____ ______ ___
cert. denied, 112 S. Ct. 941 (1992). Bonasia, however,
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points us to no specific prejudicial incidents that occurred
before the jury.7 Bonasia therefore cannot convincingly
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6. We also note that the district court was careful to sever
the three felon-in-possession counts charged only against
Bonasia's codefendants. These issues were tried to the jury
after it had returned a verdict on all the other charges.
7. Bonasia cites two statements by DeMasi as being
inflammatory and prejudicial, but the first occurred at a
pretrial hearing and the second occurred at DeMasi's
sentencing. Bonasia also notes that DeMasi allegedly
threatened Bonasia's trial counsel over a dispute concerning
the order in which defendants would present final arguments.
The alleged threat, however, occurred outside of the
courtroom and after the close of evidence. Bonasia's counsel
brought the alleged threat to the attention of the judge, who
ordered all the defendants to present arguments in
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13
argue that the district court should have granted severance
on this ground.
Bonasia's final claim that he was prejudiced
because the jury viewed his codefendants enter the courtroom
in handcuffs is similarly unavailing. This incident occurred
on the eleventh day of trial, when the jury was mistakenly
brought into the courtroom before the defendants entered.
The record reveals that, at most, no more than one or two of
the jurors briefly observed a single defendant in handcuffs.
After the incident, the district judge separately questioned
each juror, inquiring whether each had either seen or heard
anything unusual, and determined that the danger of prejudice
to the defendants was insignificant. The court also
carefully cautioned each juror not to discuss the questioning
or anything he or she had noticed with the other jurors. We
believe that the district court appropriately handled the
incident and minimized any possible prejudice to the
defendants. The district court therefore did not abuse its
discretion in denying Bonasia's renewed severance motion on
this ground. Cf. United States v. Pina, 844 F.2d 1, 8 (1st
___ ______________ ____
Cir. 1988) (mistrial not warranted where three jurors saw
defendant in shackles).
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alphabetical order. Nevertheless, Bonasia's counsel agreed
to argue fourth with DeMasi arguing last. We cannot say that
this change in the order of final arguments deprived Bonasia
of a fair trial.
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14
B. Alleged Trial Errors
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1. Evidentiary Ruling
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Bonasia challenges the admission at trial of
testimony from an FBI agent who observed binoculars present
on the front seat of Bonasia's gray Buick following Bonasia's
arrest. Bonasia argues that the testimony was incorrectly
admitted because all evidence resulting from two warrantless
searches of his automobile (which, he argues, would include
any evidence of the binoculars) had been suppressed prior to
trial. This argument is without merit.
In general, we review a district court's decision
to admit evidence for abuse of discretion. See, e.g., United
___ ____ ______
States v. Fisher, 3 F.3d 456, 461 (1st Cir. 1993). The
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suppression order excluded "all evidence obtained as a
result" of the illegal searches of Bonasia's automobile. The
order, however, did not and could not extend to evidence that
derived from an independent legal source apart from the
unlawful searches. See Murray v. United States, 487 U.S.
___ ______ _____________
533, 536-41 (1988) (explaining independent source doctrine).
Thus, the question is whether the FBI agent's testimony
concerning the binoculars had an independent source apart
from the illegal searches. On this point, it is beyond doubt
that "[i]f an article is already in plain view, neither its
observation nor its seizure would involve any invasion of
privacy." Horton v. California, 496 U.S. 128, 133 (1990).
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15
Furthermore, "[t]here is no legitimate expectation of
privacy, shielding that portion of the interior of an
automobile which may be viewed from outside the vehicle by
either inquisitive passersby or diligent police officers."
Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion)
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(citation omitted); see also United States v. Ware, 914 F.2d
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997, 1000 (7th Cir. 1990); Brumfield v. Jones, 849 F.2d 152,
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155 (5th Cir. 1988).
The agent who testified at trial about the
binoculars participated in neither the illegal searches of
Bonasia's automobile nor Bonasia's arrest. At the time of
the arrest, the agent was legitimately present in the parking
lot, standing several feet away from Bonasia's automobile.
At trial, the agent merely testified to observing the
binoculars which were in "plain view" on the front seat of
the vehicle. Therefore, the agent's testimony had an
independent legal source apart from the illegal searches and
was properly admitted.8
2. Sufficiency of Evidence
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We now turn to the defendants' challenges to the
sufficiency of the evidence. In assessing evidentiary
sufficiency, "[o]ur task is to review the record to determine
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8. Bonasia also challenges a reference by the district court
to the binoculars in the jury instructions and a similar
reference by the prosecutor in summation. Because we rule
that the testimony concerning the binoculars was properly
admitted, neither of the challenged references was improper.
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16
whether the evidence and reasonable inferences therefrom,
taken as a whole and in the light most favorable to the
prosecution, would allow a rational jury to determine beyond
a reasonable doubt that the defendants were guilty as
charged." United States v. Mena-Robles, 4 F.3d 1026, 1031
_____________ ___________
(1st Cir. 1993), cert. denied, 114 S. Ct 1550 (1994),
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modified on other grounds sub nom., United States v. Piper,
________ __ _____ _______ ___ ____ _____________ _____
No. 94-1197 slip op. (1st Cir. Sept. 8, 1994). In arriving
at our determination, we must credit both direct and
circumstantial evidence of guilt, but "must do so without
evaluating the relative weight of different pieces of proof
or venturing credibility judgments." United States v.
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Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We need not be
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satisfied that no verdict other than one of guilt could
reasonably have been reached; rather, we need only satisfy
ourselves that the record plausibly supports the verdict the
jury did return. Id.
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Bonasia complains that the evidence against him is
insufficient to support his convictions for conspiracy and
attempt. He maintains the government failed to offer any
evidence that established his specific intent to join in
either the criminal conspiracy or the attempt. Moreover, he
argues that the evidence amassed against him does not support
a finding that he performed a "substantial step" towards the
completion of the attempted robbery. In essence, Bonasia
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17
contends that the evidence establishes only his mere presence
at the scene of the crime, and his sporadic association with
DeMasi and Martel. Again, we disagree.
To prove a charge of conspiracy, the government
must establish beyond a reasonable doubt that an agreement or
working relationship existed, that the agreement had an
unlawful purpose, and that the defendant voluntarily entered
into the agreement. See United States v. David, 940 F.2d
___ _____________ _____
722, 735 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301
_____ ______
(1992). Moreover, the government must prove that the
defendant both intended to agree and to effectuate the
commission of the underlying offense that was the object of
the conspiracy. United States v. Piper, No. 94-1197, slip
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op. at 8 (1st Cir. Sept. 8, 1994). "[T]he proof of a
defendant's conspiratorial involvement may consist of
indirect evidence, including reasonable inferences drawn from
attendant circumstances." Echeverri, 982 F.2d at 679.
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To prove a charge of attempt, the government must
show beyond a reasonable doubt the defendant's intent to
commit the offense charged and that the defendant performed a
substantial step towards the completion of the offense.
United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir.
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1993), cert. denied, 114 S. Ct. 731 (1994). Respecting
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Bonasia's "mere presence" argument, we have noted that "`the
culpability of a defendant's presence hinges upon whether the
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18
circumstances fairly imply participatory involvement. In
other words, a defendant's "mere presence" argument will fail
in situations where the "mere" is lacking.'" United States
_____________
v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (quoting
________________
Echeverri, 982 F.2d at 678), petition for cert. filed, 63
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U.S.L.W. 3066 (U.S. June 6, 1994) (No. 94-93).
The government's evidence against Bonasia is
clearly sufficient to support the jury's finding of guilt
beyond a reasonable doubt on both the conspiracy and the
attempt counts. Bonasia's presence at the September 3, 1991,
surveillance and his August 26, 1991, nighttime visit to the
parking lot with DeMasi and Martel plausibly support an
inference that he participated in the planning of the
attempted robbery. This inference is strengthened by
Bonasia's frequent visits over the course of the summer to
DeMasi and Martel's campsite at the Pines Campground.
Moreover, Bonasia's activities on the day of the
arrest tend to establish his complicity. Even aside from the
much disputed "thumb's up" signal,9 Bonasia's activities on
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9. Bonasia fervently maintains that we should disregard the
FBI agent's testimony concerning the alleged sighting of the
"thumb's up" signal because, under the conditions, such a
sighting was a "physiological impossibility." Bonasia's
"thumb's up" signal was observed by an FBI special agent who
was located in an undercover van in the parking lot some 60
to 65 yards away. The agent made his observation while
peering through a hole in a plastic sheet that covered the
windows of the van. At trial, both sides introduced
photographs relating to whether the observation was possible.
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19
September 10, 1991, go well beyond mere presence. He arrived
at the parking lot more than an hour before the scheduled
arrival of the Brink's truck and met with DeMasi and Martel.
Moreover, an FBI agent testified that, shortly before the
green van entered the Port Plaza parking lot, Bonasia, who
was pacing back and forth watching the area, tellingly gave
the van in which the agent was riding a "very close look" as
it drove up. This evidence supports an inference that
Bonasia acted as a lookout during the attempted robbery. His
participation is further corroborated by the fact that, upon
entering the parking lot, Papa drove the green van towards
Bonasia's gray Buick and pulled to a momentary stop alongside
it before heading to where the Brink's truck was to make its
scheduled stop. Significantly, prior to this detour, the
defendants in the green van temporarily had been unable to
view the area where they would encounter the Brink's truck.
This underscores their need for a lookout. In sum, there is
sufficient evidence to support a finding that Bonasia
voluntarily and intentionally joined the conspiracy, and that
he performed a substantial step towards the completion of the
robbery.
Bonasia also challenges the sufficiency of the
evidence on the related firearm convictions under 18 U.S.C
924(c). He points out that these charges were submitted to
the jury under an aiding and abetting theory, which requires
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20
the government to establish that the defendant knew that
weapons would be used during the crime. See Torres-
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Maldonado, 14 F.3d at 103 (to sustain 924(c) conviction
_________
under an aiding and abetting theory "accomplice `must have
known to a practical certainty that the principal would be
[using] a gun'" (quoting United States v. Powell, 929 F.2d
______________ ______
724, 728 (D.C. Cir. 1991)). Bonasia contends that the record
lacks any evidence to support a finding that he knew his
codefendants would be using or carrying firearms during the
attempted robbery.
As we have noted, the evidence adduced at trial
more than adequately supports a finding that Bonasia joined
in the conspiracy and participated in the attempted robbery
of the Brink's truck. This same evidence likewise supports a
finding that Bonasia knew that his four codefendants would be
using or carrying firearms during and in relation to the
attempted robbery. In particular, two different Rhode Island
State Troopers testified that Bonasia remained in the parking
lot on September 3, 1991, and observed the Brink's truck for
the entirety of its scheduled stop. From this, a rational
jury could conclude that Bonasia understood the scope of what
a robbery of an armored truck with two armed guards would
entail. It therefore could reasonably infer that Bonasia
must have known that his coconspirators would be using
weapons. As we have noted before, "[i]n the last analysis,
-21-
21
criminal juries are not expected to ignore what is perfectly
obvious." Echeverri, 982 F.2d at 679; see also United States
_________ ___ ____ _____________
v. Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denied,
________ _____ ______
486 U.S. 1009 (1988).10 DeMasi, Martel, and Papa's
sufficiency challenges need detain us only briefly. These
defendants essentially contend that the evidence was
insufficient to establish that they had the specific intent
to rob the armored Brink's truck. They maintain that, at
most, the government proved only that they were present in
the rear of the green van in the Port Plaza parking lot with
some unspecified illicit purpose. Defendants' argument is
completely unconvincing.
____________________
10. In a submission after oral argument, Bonasia directed
this court to United States v. Medina, 32 F.2d 40 (2d Cir.
_____________ ______
1994), in which the Second Circuit reversed a defendant's
conviction for aiding and abetting a violation of 18 U.S.C.
924(c) due to insufficient evidence. Notwithstanding the
defendant's knowledge of expected firearm use and role in
instigating the planning of the crime, the Second Circuit
held that the evidence was insufficient to show that the
defendant "consciously and affirmatively assisted" in the
specific 924(c) violation. Id. at 45.
___
Here, Bonasia's circumstances are clearly different
from those in Medina. The defendant in Medina was not
______ ______
present at and did not participate in the commission of the
underlying felony. Id. at 42-43. Indeed, this fact weighed
___
significantly in Second Circuit's analysis. Id. at 46 ("Had
___
Medina been present at the attempted robbery, we would
consider whether his conduct at the scene facilitated or
promoted the carrying of a gun, or whether he benefitted from
the gun's use so that he could be said to constructively
possess the gun; but he was not there." (citation omitted)).
Here, Bonasia was present at and played a significant part in
the attempted armed robbery.
-22-
22
Substantial evidence was introduced at trial which
tended to establish that at least one of these defendants
(and all of them at one time or another) was present and
carefully observed the scheduled stop of the Brink's truck on
each of the five Tuesdays preceding the foiled attempted
robbery. In addition, an FBI agent testified that on
September 3, 1991, DeMasi, Martel, and Papa waited for and
then followed a Brink's truck as it made one of its scheduled
stops prior to reaching the Port Plaza Shopping Center. From
this evidence, a rational jury could conclude that the
defendants intended to rob the Brink's armored truck. The
evidence therefore supports the convictions of DeMasi,
Martel, and Papa.
3. Jury Instructions
_________________
We now turn to defendants' challenges to various
portions of the jury instructions. Only the first of these,
which assigns as error an instruction pertaining to the
crediting of witness testimony, was raised before the
district court. The remainder were raised for the first time
on appeal. Accordingly, with the exception of the first, we
will review all of defendants' challenges only for plain
error. Fed. R. Crim. P. 30, 52(b); United States v. Whiting,
_____________ _______
28 F.3d 1296, 1308 (1st Cir. 1994), petition for cert. filed,
________ ___ _____ _____
___ U.S.L.W. ___ (U.S. Aug. 23, 1994) (No. 94-5760).
-23-
23
Defendants initially challenge a section of the
jury charge in which the district court gave instructions on
evaluating witness testimony.11 As noted, the court
____________________
11. The defendants objected to the underlined language which
is set out in context below:
How do you deal with witnesses? Well,
most of the Government witnesses in this
case have been FBI agents. Not all of
them, but certainly the bulk of the
testimony has come in through FBI agents.
There's nothing magic about them. You
give the FBI agents the same scrutiny as
you would anybody else, and you test
their credibility by listening to them,
determining what you can from tone of
voice and expression of face. You try to
search out the interior logic of their
testimony: does it all fit together, does
the body English that goes with the
testimony give you a clue. You may
consider that. It may give you a clue as
to reliability, as to the confidence that
the witness has. It may give you a clue
as to whether the defendant is lying. In
short, you use all of the techniques that
you have developed in your lives for
determining whether somebody is giving
you reliable information.
You do this all the time. You go
____________________________________
and buy a major appliance or an
_________________________________________
automobile. You listen to the salesman.
_________________________________________
You listen to political candidates, you
_________________________________________
try to sort out disputes in your own
_________________________________________
household, perhaps the children or the
_________________________________________
in-laws or the neighbors or something,
_________________________________________
and you try to make a judgment about who
_________________________________________
is giving you the closest approximation
_________________________________________
of the truth. That's probably about what
_________________________________________
we get at best. And you have to be
_________________________________________
satisfied that all of these stories
_________________________________________
together, all of this testimony together,
_________________________________________
with its blemishes and defects, satisfies
_________________________________________
you beyond a reasonable doubt of the
_________________________________________
defendant's guilt before you can return a
_________________________________________
finding of guilty.
__________________
-24-
24
instructed the jury that, in assessing the testimony, it
should utilize the experience and skills it had attained from
making everyday judgments and decisions. Moreover, the
district court explained that in rendering these assessments
"you try to make a judgment about who is giving the closest
approximation of truth." Defendants contend that these
instructions trivialized the fact-finding function of the
jury and had the overarching effect of reducing the
government's burden of proof. We are unpersuaded.
It is beyond dispute that the government must prove
every element of a charged offense beyond a reasonable doubt.
In re Winship, 397 U.S. 358, 364 (1970). Failure of a
______________
verdict to be based on a finding of guilt beyond a reasonable
doubt is a structural error of constitutional magnitude and
is not subject to harmless error review. Sullivan v.
________
Louisiana, 113 S. Ct. 2078, 2082 (1993). It is also true,
_________
however, that each piece of evidence and every "inference
forming a part of the mosaic making up the jury's ultimate
finding of guilt beyond a reasonable doubt need [not] itself
____________________
Now, you can take part of a
witness's story, part of a witness's
testimony and reject others. You can
take the part that seems to be reliable
and reject what is unreliable, or what
appears to be unreliable. You can also
say, well, if this man is unreliable in
one respect, I won't trust him in any
other. But it is up to you. Those
judgments are yours. That's what you're
here for.
-25-
25
be established beyond a reasonable doubt." United States v.
_____________
Corgain, 5 F.3d 5, 10 (1st Cir. 1993). Hence, the
_______
appropriate question on review is "whether there is a
reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient
to meet the Winship standard." Victor v. Nebraska, 114 S.
_______ ______ ________
Ct. 1239, 1243 (1994). Moreover, in reviewing jury
instructions, we measure each instruction, not in isolation,
but within the context of the charge as a whole. United
______
States v. Akinola, 985 F.2d 1105, 1112 (1st Cir. 1993).
______ _______
The challenged instructions do not endeavor to set
forth the government's burden of proof (which the district
court correctly described); instead, they guide the jury in
evaluating and considering the credibility of witness
testimony. This is not a situation in which the district
court has attempted to define reasonable doubt by analogizing
to the standard employed by individuals in the significant
decisions of daily life. See, e.g., United States v.
___ ____ ______________
Nickens, 955 F.2d 112, 119-120 (1st Cir.), cert. denied, 113
_______ _____ ______
S. Ct. 108 (1992); Dunn v. Perrin, 570 F.2d 21, 24-25 (1st
____ ______
Cir.), cert. denied, 437 U.S. 910 (1978). Instead, the court
_____ ______
was merely exhorting the jury to fulfill its function by
bringing common sense judgment to bear on the evaluation of
the different and inevitably conflicting testimony of the
-26-
26
various witnesses. This certainly does not constitute
reversible error.
Moreover, as defendants concede, the district court
accurately set forth the proper standard for the government's
burden of proof in other sections of the charge. Our review
of the instructions reveals that the district court referred
to the "beyond a reasonable doubt" standard no less than
twelve times in the nine pages of jury instructions preceding
the isolated section challenged here. This overwhelming
number of correct references negated any chance that the
contested statements were misconstrued by the jury as somehow
reducing the government's burden of proof. See United States
___ _____________
v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987) (no reversible
_____
error where jury could not have been misled in light of
numerous other correct instructions about presumption of
innocence and government's burden).
Defendants, as we have noted, also raise for the
first time several additional objections to the district
court's jury instructions. Bonasia argues that the district
court erred by giving an improper "Pinkerton" instruction
_________
concerning Bonasia's liability for the substantive crimes
committed by his coconspirators. See Pinkerton v. United
___ _________ ______
States, 328 U.S. 640 (1946) (approving instructions that
______
permitted jury to convict a conspirator for a coconspirator's
acts that were committed in furtherance of the conspiracy).
-27-
27
DeMasi, Martel, and Papa claim that the district court erred
by incorrectly defining the elements of attempt, and by
creating a logical progression of steps that inevitably led
the jury to a guilty verdict. In addition, all four
defendants object to various isolated statements which, they
maintain, were prejudicial, assumed various material facts as
true, and deprived them of their Sixth Amendment right to a
jury trial. Though a few of the instructions identified by
the defendants are problematic, we cannot say that,
individually or collectively, they rise to the level of plain
error.12
____________________
12. In his reply brief, defendant Bonasia makes one
additional challenge to the jury instructions. Bonasia
argues that a portion of the charge is nearly identical to
language this court held to be reversible error in United
______
States v. Harrigan, 586 F.2d 860 (1st Cir. 1978). In
______ ________
Harrigan, the district court instructed the jury "that the
________
defendant's evidence has no greater function than simply to
raise a reasonable doubt in your minds, if it does. The
defendant is not required to go any further." Id. at 862.
___
In the present case, the district court stated that "[t]he
defendants' efforts have one purpose only and no more than
one purpose. And that is to create reasonable doubt."
Bonasia maintains that this instruction created the
impression that the defendant had the burden to prove
reasonable doubt.
Neither Bonasia nor any of his codefendants
objected to this portion of the charge at trial. Moreover,
Bonasia raised this issue only in his reply brief. As this
court has consistently held, issues raised for the first time
in appellant's reply brief are generally deemed waived.
United States v. Brennan, 994 F.2d 918, 922 n.7 (1st Cir.
_____________ _______
1993); United States v. Michaud, 925 F.2d 37, 43 n.8 (1st
_____________ _______
Cir. 1991); United States v. Benavente Gomez, 921 F.2d 378,
______________ _______________
386 (1st Cir. 1990). So it is here. And, in any event, we
discern no plain error in this instruction. Unlike Harrigan,
________
the jury was not told that the defendant was "required" to do
anything; instead, it was only told, if somewhat clumsily,
-28-
28
Under "plain error" review, the burden falls on the
appellant to show that there is an error, that the error is
"clear" or "obvious," and that it has affected "substantial
rights." United States v. Olano, 113 S. Ct. 1770, 1776-9
______________ _____
(1993); Whiting, 28 F.3d at 1308. In most cases, an error
_______
will be found to have "affect[ed] substantial rights" only if
inter alia the error was prejudicial such that it had an
_____ ____
impact on the outcome of the trial. Olano, 113 S. Ct. at
_____
1778.
Even then, our review is discretionary. Id. "[A]
___
plain error affecting substantial rights does not, without
more," warrant the exercise of this discretion. Id. at 1779.
___
A reviewing court should limit the exercise of this
discretion to cases where the failure to act would result in
a "miscarriage of justice" such as "the conviction or
sentencing of an actually innocent defendant." Id. In other
___
words, "we review only `blockbusters: those errors so
shocking that they seriously affect the fundamental fairness
and basic integrity of the proceedings conducted below.'"
United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st Cir.
_____________ _____________
1991) (quoting United States v. Griffin, 818 F.2d 97, 100
_____________ _______
(1st Cir.), cert. denied, 484 U.S. 844 (1987)).
_____ ______
We first consider Bonasia's objection to the
district court's inclusion of an allegedly improper Pinkerton
_________
____________________
what defendants were trying to do in this case.
__ ____ ____
-29-
29
instruction.13 Bonasia argues that he was prejudiced by
the court's failure to limit liability under the Pinkerton
_________
doctrine to only those reasonably foreseeable acts of his
__________ ___________
coconspirators done in furtherance of the conspiracy.
Bonasia claims that the failure to include the "reasonably
foreseeable" qualification was tantamount to a directed
verdict in favor of the government on the 18 U.S.C. 924(c)
charge.
Because the government conceded error in its brief,
we will assume arguendo that the district court's formulation
________
of the Pinkerton charge was erroneous. The government
_________
nevertheless maintains that the Pinkerton instruction did not
_________
prejudice Bonasia. The government argues that the district
court's previous instruction under an aiding and abetting
theory -- that in order to convict Bonasia the jury must find
that he knew his coconspirators would use or carry firearms
____________________
13. Bonasia objects to the following portion of the charge:
I should also point out another
principle of law which has to do with Dr.
Bonasia's liability. If you find that he
was a member of the conspiracy, then
under the holding of the case called
Pinkerton versus the United States, he is
liable for all of the acts taken by the
co-conspirators during the time - or
starting with the time that he became a
member of the conspiracy. So a member of
a conspiracy is liable for all of the
acts done in furtherance of the
conspiracy by the other conspirators.
And that has to do with this gun charge.
-30-
30
during the attempted robbery -- alleviated any possible harm.
The inclusion of a correct instruction directly contradicting
an erroneous one, however, will not necessarily rectify the
error because a reviewing court cannot determine with
certainty which of the two irreconcilable instructions the
jury followed. See Francis v. Franklin, 471 U.S. 307, 322
___ _______ ________
(1985); Hill v. Maloney, 927 F.2d 646, 651 (1st Cir. 1990).
____ _______
Accordingly, because we have no way of determining which
instruction the jury applied, we must instead ask whether we
can affirm the conviction based on the erroneous instruction.
Essentially, Bonasia claims that the district court
omitted an element in its Pinkerton instruction, and that the
_________
omission, a fortiori, precluded the jury from making the
_ ________
necessary factual finding to support his conviction. What
the law demands in order to show that a district court's
omission or misdescription of an element did not affect a
defendant's "substantial rights" is not entirely clear. See
___
Whiting, 28 F.3d at 1309. Nevertheless, even under the most
_______
rigorous harmless error standard suggested, an error will be
________ _____
declared harmless in those rare cases where no rational jury
could have found what it actually did find and not also find
the omitted or misdescribed element. Carella v. California,
_______ __________
491 U.S. 263, 270-71 (1989) (Scalia, J., concurring in
judgment). This is such a case.
-31-
31
First, even under the contested instruction, the
jury was required to find that Bonasia conspired with the
other defendants to rob the armored truck. As we have stated
above, the evidence amply supports the jury's verdict of
guilt on this issue. Next, we have noted the strong nexus
between the use or carrying of firearms and the successful
completion of the robbery of an armored truck. See supra at
___ _____
20-21. This is not a case where the government sought to
hold a defendant liable for the substantive crimes of his
coconspirators that were not an integral part of the direct
object of the conspiracy. Rather, the use of firearms during
and in relation to the attempted robbery of the Brink's truck
was part and parcel to the object of the conspiracy itself.
Therefore, we find that no rational jury could have found
that Bonasia conspired to rob the Brink's truck in the Port
Plaza Shopping Center on September 10, 1991, without also
finding that the use of firearms in that robbery would be
reasonably foreseeable.14
____________________
14. During oral argument, Bonasia's counsel belatedly argued
that the legal standard set forth by the district court's
aiding and abetting instruction was inadequate in light of
United States v. Torres-Maldonado, 14 F.3d 95 (1st Cir.
______________ ________________
1994), petition for cert. filed, 63 U.S.L.W. 3066 (U.S. June
________ ___ _____ _____
6, 1994) (No. 94-93). In Torres-Maldonado, we noted that,
________________
with regard to 18 U.S.C. 924(c) convictions under an aiding
and abetting theory, "[i]t is well settled . . . that an
accomplice `must have known to a practical certainty that the
principal would be [using] a gun.'" Torres-Maldonado, 14
________________
F.3d at 103 (quoting United States v. Powell, 929 F.2d 724,
_____________ ______
728 (D.C. Cir. 1991)). Here, the district court specifically
instructed:
-32-
32
DeMasi, Martel, and Papa also contend that the
district court incorrectly instructed the jury on the
elements of attempt. The district court did not give the
"substantial step" instruction which has been uniformly
adopted by the federal courts, see United States v. Rivera-
___ ______________ _______
Sola, 713 F.2d 866, 869 (1st Cir. 1983), but instead stated:
____
One thing more is required beyond
intent. And this is a fussy point. Mere
preparation is not enough. There must be
some act taken. You must be satisfied
that the defendants or the defendant whom
you are considering set himself on a path
of action which, but for the intervention
of the FBI, would in the ordinary course
have led to the commission of the crime.
____________________
You have to be satisfied in order to hold
Dr. Bonasia liable that he had intended
to participate and that he had an
expectation - you must find beyond a
reasonable doubt that he had an
expectation that firearms would be used
in carrying out the crimes, that he
should have, that he would in the
ordinary course have known that firearms
were to be used. You don't have to be
satisfied that he saw them, but you have
to be satisfied that when, if he did
undertake to be a part of this plan, that
he understood that part of the plan was
going to involve the use of firearms,
having in mind that the Government's
position is that the plan was to hold up
the armored car and take the banks' money
out of it.
Bonasia waived this issue by failing to raise it
prior to oral argument. See Sheinkopf v. Stone, 927 F.2d
___ _________ _____
1259, 1263 (1st Cir. 1991) (issues raised only at oral
argument are waived). In any event, we are not convinced
that the district court's instruction was incorrect.
-33-
33
At oral argument, counsel for the defendants
conceded that the instruction that the defendant must "set
himself on a path of action which, but for the intervention
of the FBI, would in the ordinary course have led to he
commission of the crime" actually set forth a narrower
standard than provided by a "substantial step" instruction.
Nonetheless, defendants' counsel maintained that the
preceding sentence ("There must be some act taken.")
permitted the jury to find the defendants guilty on a
standard substantially less than that called for in a
substantial step instruction. Defendants' argument is
baseless.
When the district court's instruction is read in
context, as set forth above, it is fully apparent that the
challenged statement was qualified by the subsequent "path of
action" language. Plainly, the jury was instructed that not
just any act taken but only those acts that would have set
the defendants on the "path of action" inevitably leading to
the commission of the crime would be sufficient to establish
the charge of attempt. Because defendants concede that the
"path of action" language established a narrower standard
than that required by law, they were not harmed by the
district court's variance from the usual instruction.
DeMasi, Martel, and Papa also contend that the
district court led the jury through a progression of logical
-34-
34
steps to the inevitable result of a guilty verdict.
Primarily, defendants assert that by juxtaposing a scenario
which the district court suggested would not constitute an
attempt against the facts of the case, the district court
strongly implied that an attempt had occurred.15
Defendants maintain further that the district court continued
the progression by stating later that "it's hard to imagine
an attempt being accomplished without there having been a
conspiracy, without there being an agreement." Finally,
defendants complain that the district court compounded the
error when it opined that "[f]our guys end up in a truck;
____________________
15. The contested section of the charge is as follows:
Now, as I say, mere preparation is not
enough. This evidence of surveilling
would not have been enough. I would
suppose that, let's say on September 10th
they got opposite the McDonald's and they
said, ["]gee, its hot in this truck and
all these things I'm wearing are very
uncomfortable and sticky. Let's quit the
whole thing and go into McDonald's and
get a milk shake.["] At that point, the
progress would have stopped. And I
suggest to you it probably would not have
been close enough to be an attempt. It
was not stopped by the FBI if they
stopped themselves. But then you can
consider from all of the evidence you
have heard about the passage of the
truck, where the Brink[']s truck, in the
ordinary course, would have been, whether
they had set themselves on a path of
action which, but for the intervention of
the FBI, would in the ordinary course
have led to the commission of the crime.
-35-
35
common sense would tell you that there had to be some prior
agreement to be there."
Once again, because defendants made no
contemporaneous objection to this portion of the jury charge,
we engage only in a plain error review, and once again, we
find none. Defendants rely on United States v. Spock, 416
_____________ _____
F.2d 165, 180-83 (1st Cir. 1969), where we held that
instructions that present the jury with a "logical
progression" are forbidden. What was particularly offensive
in Spock, however, was the submission of a special verdict to
_____
the jury in a criminal trial. We initially note that no
special verdict was used here. Moreover, because they do not
purport to instruct the jury on the intent element of
attempt, we do not believe that the challenged instructions
led the jury to the inevitable conclusion that an attempt had
occurred. Indeed, in the preceding paragraph of
instructions, the district court carefully instructed the
jury on the element of intent, which was the most contested
issue at trial, stating that: "Attempt is a different type
of offense. For an attempt there has to be the intent to do
the illegal act. . . . In the attempt situation, you have to
find intent. . . . And again, you have to be satisfied
beyond a reasonable doubt." Finally, the court ended the
paragraph that included the challenged illustration with the
-36-
36
reminder, "All right. So there are two elements of attempt."
___ ________ __ _______
(Emphasis added.)
In sum, we are not persuaded that the challenged
instruction created a logical progression that inevitably led
the jury to a guilty verdict.16
Finally, all four defendants challenge various
isolated statements which they contend were prejudicial,
assumed controverted material facts as true and deprived the
defendants of their Sixth Amendment right to trial by
jury.17 Though it might have been preferable if the
____________________
16. We also rule that neither of two additional statements
that DeMasi, Martel, and Papa contend buttress their logical
progression argument constitute plain error. Even if we
assume that the statements prejudiced the defendants to some
degree, we note that the evidence with respect to DeMasi,
Martel, and Papa was overwhelming. There is no chance that
innocent defendants were convicted as a result of the
challenged statements. Accordingly, no miscarriage of
justice occurred.
17. First, DeMasi, Martel, and Papa contest the district
court's following comment on the evidence: "But you do have
some things about which there are no mistakes, the most
significant being that four of these defendants were found in
the truck with guns." Bonasia makes a similar complaint
about the reference to "robbing from a bank, and you had
evidence about that." DeMasi, Martel, and Papa also object
to the following statement made by the court while
elaborating on the action element of the crime of attempt:
"Now as I say, mere preparation is not enough. This evidence
________
of surveilling would not have been enough." They further
______________
find offensive the court's reference to "this attempted
robbery" which it made while instructing on the 18 U.S.C.
924(c) firearm charges. In addition, DeMasi, Martel, and
Papa challenge a comment the court made while explaining the
aiding and abetting theory on which Bonasia was charged: "He
himself did not -- was not in the truck. He did not make the
___________________
attempt. But he is charged with being an aider and abettor."
_______
Lastly, Bonasia challenges the comment: "Four guys end up in
-37-
37
statements had not been made, we cannot say that any of them
so infected the entire charge to the jury as to undermine the
fairness of the trial.
In analyzing the prejudicial effect of the
challenged statements, we note that the district court
cautiously admonished the jury that "when I talk about the
evidence, it's my memory only. It's your memory that
governs." The challenged statements, though problematic, are
isolated snippets culled from over thirty pages of generally
cautious, careful, and correct instructions. At most, the
statements were inadvertent slips of the tongue with limited
prejudicial force. See United States v. Lebron-Gonzalez, 816
___ _____________ _______________
F.2d 823, 830 (1st Cir.) (no plain error because judge did
not supplant jury as fact finder as a result of inadvertent
slip of tongue in jury charge), cert. denied, 484 U.S. 843,
_____ ______
and cert. denied 484 U.S. 857 (1987).
___ _____ ______
Moreover, as we have noted, the evidence against
DeMasi, Martel and Papa was overwhelming. We further note
that, with respect to Bonasia, the evidence was likewise more
than sufficient. We have no fear that the challenged
statements caused the conviction of innocent defendants.
After carefully reviewing the record, we are confident that
no miscarriage of justice occurred.
____________________
a truck, common sense would tell you that there had to be
some prior agreement to be there."
-38-
38
4. Other Matters
_____________
Bonasia makes two final arguments. First, Bonasia
contends that in rebuttal the prosecution mischaracterized
what certain FBI surveillance logs stated with respect to
him. Nonetheless, Bonasia failed to object to this
characterization at trial. "In the absence of a
contemporaneous objection, we review allegations of
prosecutorial misconduct for plain error, and will overturn a
jury verdict only if the government's closing argument so
poisoned the well that it is likely that the verdict was
affected." United States v. Tuesta-Toro, No. 93-2182, slip
_____________ ___________
op. at 12 (July 25, 1994) (internal quotations omitted). We
are confident that there is no likelihood that the isolated
statement affected the outcome of the trial.
Finally, Bonasia maintains that, if not
individually, the cumulative effect of the various complaints
he raises deprived him of a fair trial. Because we have
found that none of Bonasia's individual complaints resulted
in substantial prejudice and that most are completely without
merit, we reject the final contention that his conviction was
tainted by cumulative error. See id. (rejecting cumulative
___ ___
error argument); see also United States v. Barnett, 989 F.2d
___ ____ _____________ _______
546, 560 (1st Cir.) ("The Constitution entitles a criminal
defendant to a fair trial, not a perfect one." (quotations
-39-
39
omitted)), cert. denied, 114 S. Ct. 148, and cert. denied,
_____ ______ ___ _____ ______
114 S. Ct. 149 (1993).
C. Alleged Post-Trial Errors
_____________________________
On cross-appeal, the government raises two
objections to the sentencing of Bonasia by the district
court. The government challenges both the role-in-the-
offense reduction awarded Bonasia and the downward departure
of twenty-nine months granted him because of his record of
charitable work and community service. We discuss each in
turn.18
A sentencing court's decision to award a role-in-
the-offense reduction "is heavily dependent on the facts of
the particular case," U.S.S.G. 3B1.2, comment. (backg'd.).
Accordingly, we review these fact-bound determinations only
for clear error. United States v. Ocasio, 914 F.2d 330, 333
_____________ ______
(1st Cir. 1990). In reviewing decisions to depart from the
Sentencing Guidelines, our review is broader. In a three-
____________________
18. DeMasi, Martel, and Papa also appeal the calculation of
their sentences, contending that the district court erred in
finding the value of the intended loss for sentencing
purposes. The district court's determination was a factual
finding which we review only for clear error. 18 U.S.C.
3742(e). The district court found the value of the intended
loss to be $400,000, which was the lowest of three
alternatives presented in the Presentence Report. Defendants
argue that a fourth scenario existed where the intended loss
would have been only $24,000. After reviewing the record,
however, we cannot say the district court's finding was clear
error. See United States v. Morillo, 8 F.3d 864, 871 (1st
___ ______________ _______
Cir. 1993) ("Where . . . evidence fully supports more than
one inference, a sentencing court's choice from among
plausible alternatives cannot be clearly erroneous.").
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40
step analysis, we examine "(1) whether the reasons the court
gave for departing are of the sort that might permit a
departure in an appropriate case; (2) whether the record
supports a finding of facts demonstrating the existence of
such reasons; and (3) whether, given the reasons, the degree
of departure is reasonable." United States v. Mendez-Colon,
_____________ ____________
15 F.3d 188, 189 (1st Cir. 1994). With respect to the first
prong of the analysis, we generally review a district court's
determination that a case is unusual and therefore worthy of
departure "with full awareness of, and respect for, the
trier's superior feel for the case." United States v.
_____________
Rivera, 994 F.2d 942, 952 (1st Cir. 1993) (internal
______
quotations omitted); see also United States v. Pelkey, 29
___ ____ ______________ ______
F.3d 11, 14 (1st Cir. 1994). In conducting this inquiry,
however, we do not owe deference to the district court when
the issue turns on purely legal questions of guideline
interpretation or whether the correct legal standard was
applied. See Rivera, 994 F.2d at 950-52.
___ ______
Turning to the government's first argument, we note
that the district court determined that Bonasia's
participation in the attempted robbery fell between a minor
and a minimal role, thus warranting a three-level reduction
in his base offense level. See U.S.S.G. 3B1.2 (granting
___
reductions in base offense level to less culpable
participants in the criminal activity). The government
-41-
41
maintains, however, that the district court impermissibly
based this determination on the fact that Bonasia's role as a
lookout was less reprehensible than the roles of his
codefendants and not because his conduct evinced less
culpability. We do not find the district court's
determination to be clearly erroneous.
A defendant can receive a role-in-the-offense
reduction by fulfilling two requirements. First, the
defendant must convince the sentencing court that the
defendant was less culpable than most of the participants in
the criminal activity. See U.S.S.G. 3B1.2, comment. (n.1-
___
3); United States v. Gregorio, 956 F.2d 341, 344 (1st Cir.
_____________ ________
1992). Second, the sentencing court must also be persuaded
to find that the defendant was less culpable than the
"average person" who commits the same offense. Gregorio, 956
________
F.2d at 344; cf. U.S.S.G. 3B1.2, comment. (backg'd). Here
___
the record reasonably supports the district court's decision
to grant a reduction. Specifically, the district court
plausibly inferred from the totality of the evidence
(including, for example, the fact that Bonasia attended only
one of the Tuesday surveillance meetings) not only that
Bonasia played a limited part in the planning of this
particular offense, but also that, within the universe of
individuals convicted of conspiring and attempting to rob
banks with the aid of firearms, Bonasia was less involved
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42
(and, hence, less culpable) than most. We believe,
therefore, that the district court's determination is not
clear error.
The government's next contention is that the
district court erred in making a downward departure of
twenty-nine months in the calculation of Bonasia's sentence.
The government complains that in deciding to depart because
of Bonasia's history of charitable work and community
service, the court improperly compared Bonasia to "the
typical bank robber" and not to other defendants with
comparable records of good works. We agree with the
government on this issue.
Before a sentencing court may depart in a specific
case, it must ask:
1) What features of this case,
potentially, take it outside the
Guidelines' "heartland" and make of it a
special, or unusual, case?
2) Has the [Sentencing] Commission
forbidden departures based on those
features?
3) If not, has the [Sentencing]
Commission encouraged departures based on
those features?
4) If not, has the [Sentencing]
Commission discouraged departures based
on those features?
Rivera, 994 F.2d at 949. A court's subsequent analysis
______
varies depending on the category in which the feature
justifying departure falls.
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43
If the feature or reason for departure falls into
the discouraged category, the mere presence of the feature
(no matter how unusual that mere presence might seem) will
not by itself take the case outside the Guidelines'
"heartland." Id. at 948. This is true because the
___
philosophy underlying the Guidelines dictates that whether or
not these features are present in a case is "not ordinarily
relevant" in determining a defendant's sentence. Id. A
___
discouraged-feature departure is warranted only if the
"nature and magnitude" of the feature's presence is unusual
or special. Id. To make this determination, a court must
___
ask "whether the case differs from the ordinary case in which
those [discouraged] features are present." Id. at 949; see
___ ___
also United States v. Jackson, 30 F.3d 199, 202 (1st Cir.
____ _____________ _______
1994); United States v. Sclamo, 997 F.2d 970, 973 (1st Cir.
_____________ ______
1993). Moreover, before a court may lawfully decide to
depart, "it must explain how the case (compared to other
cases where the [discouraged] reason is present) is special."
Rivera, 994 F.2d at 951; see also Jackson, 30 F.3d at 202;
______ ___ ____ _______
Sclamo, 997 F.2d at 973.
______
Whether or not departure for a certain feature is
discouraged turns, of course, on a reading of the Guidelines.
Specifically, the Sentencing Guidelines provide that "civic,
charitable, or public service, . . . and similar prior good
works are not ordinarily relevant in determining whether a
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44
sentence should be outside the applicable guideline range."
U.S.S.G. 5H1.11, p.s.19 Therefore, a defendant's record
of charitable work and community service falls into the
discouraged-feature category of justifications for departure.
See Rivera, 994 F.2d at 948.
___ ______
In the present case, the district court chose to
depart from the Guidelines because Bonasia's charitable work
and community service stood apart from what one would expect
of "the typical bank robber." The court, however, did not
compare Bonasia's history of charitable and community service
to the histories of defendants from other cases who similarly
____________________
19. The fact that 5H1.11 was not promulgated until
November 1, 1991, after the offense conduct but before the
sentencing in this case, does not make it irrelevant to the
present issue. The district court must use, subject to ex
__
post facto concerns, the Guidelines that are in effect on the
____ _____
date of sentencing. 18 U.S.C. 3553(a)(4). Moreover, 28
U.S.C. 994(e) reveals Congress's intention that
consideration of factors such as "employment record, family
ties and responsibilities, and community ties" are generally
_________ ____
inappropriate in sentencing decisions. Hence, the enactment
of 5H1.11 merely clarified the Guidelines and did not mark
a substantive change. Cf. Isabel v. United States, 980 F.2d
___ ______ _____________
60, 62-63 (1st Cir. 1992) (clarifications of the Guidelines
may be applied retroactively, substantive changes may not);
but see United States v. O'Brien, 18 F.3d 301, 302 (5th Cir.
___ ___ _____________ _______
1994) (eschewing reliance on 5H1.11 due to ex post facto
__ ____ _____
concerns, nonetheless vacating departure because defendant's
charitable work and community service were products of
defendant's professional record and professional skills,
which are discouraged factors under 5H1.2 (vocational
skills) and 5H1.5 (employment record)), petition for cert.
________ ___ _____
filed, 63 U.S.L.W. 3092 (U.S. July 18, 1994) (No. 94-159).
_____
In any event, Bonasia did not challenge the use of 5H1.11
in the court below and, therefore, has waived any challenge
to its applicability in his case.
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45
had commendable community service records. The court stated
that:
If this was a securities fraud case or
bank fraud case, probably the downward
departure would not be appropriate.
Because presumably people of the sort
that Dr. Bonasia is [i.e., individuals
who have a past record of charitable work
and community service] are likely to
engage in those activities and be within
the contemplation of the Sentencing
Commission.
In so stating, the court at least implied that it
did not consider Bonasia's good works to be unusual or
exceptional if compared to other defendants with past records
of commendable service. Moreover, the court erred by
restricting the scope of its comparison to only bank robbery
cases. A court should survey those cases where the
discouraged factor is present, without limiting its inquiry
to cases involving the same offense, and only then ask
whether the defendant's record stands out from the crowd.
See Rivera, 994 F.2d at 953-54 (suggesting departure for
___ ______
discouraged factor might be warranted after comparing case to
other cases involving the factor without regard to the
underlying crime); Jackson, 30 F.3d at 202-03 (reversing
_______
decision to depart based on discouraged factor [age] after
comparing facts of case to other cases involving age
irrespective of underlying crime); but cf. United States v.
___ ___ _____________
Haversat, 22 F.3d 790, 795-96 (8th Cir. 1994) (reversing
________
departure because defendant's charitable and volunteer
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46
activities were not atypical for a defendant in an antitrust
price-fixing case).
In sum, the district court erred when it declined
to compare Bonasia's record of charitable work and community
service to other cases where defendants similarly had records
of past community service. We therefore must remand for
reconsideration of this issue under the proper legal
standard.20
III.
III.
____
Conclusion
Conclusion
__________
For the reasons stated above, we affirm the
district court on all issues raised by the defendants. We,
however, vacate Bonasia's sentence and remand for
resentencing.
____________________
20. We do not offer any opinion on whether Bonasia's record
of charitable work and community service warrants departure
given the proper comparison. We leave this determination to
the discretion of the district court.
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