USCA1 Opinion
February 8, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________
No. 95-1140
UNITED STATES,
Appellee,
v.
LAWRENCE M. LANOUE,
Defendant.
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ERRATA SHEET
The opinion of this court issued on December 15, 1995, is
amended as follows:
Cover Sheet: Change "Defendant." to "Defendant, Appellant."
January 11, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1140
UNITED STATES,
Appellee.
v.
LAWRENCE M. LANOUE,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this Court issued on December 15, 1995, is
corrected as follows:
On page 13, line 21 - delete "0" at the beginning of the line.
On page 46, line 3 - insert the word "doubt" between "reasonable"
and "that".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1140
UNITED STATES,
Appellee.
v.
LAWRENCE M. LANOUE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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David L. Martin, for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, and James H. Leavey,
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Assistant United States Attorney, were on brief for appellee.
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December 15, 1995
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BOWNES, Senior Circuit Judge. Appellant Lawrence
BOWNES, Senior Circuit Judge.
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M. Lanoue (Lanoue) appeals his convictions and sentence for
interstate transportation of a stolen motor vehicle, 18
U.S.C. 2312 (Count V), interstate transportation of a
firearm with an obliterated serial number, 18 U.S.C. 922(k)
(Count VI), and conspiracy to commit federal offenses, 18
U.S.C. 371 (Count I). Lanoue contends that he is entitled
to a new trial on all counts because the trial court abused
its discretion by refusing to declare a mistrial when the
government cross examined a critical defense witness with
Lanoue's own statements which were intercepted in violation
of Title III of the Omnibus Crime Control and Safe Streets
Act, 18 U.S.C. 2510-2521 (Title III), and then withheld
from him in violation of Fed. R. Crim. P. 16(a)(1)(A).
Lanoue also contends that there was insufficient evidence to
convict him of Counts I and VI, and that the trial court
improperly enhanced his sentence based on conduct of which
the jury had acquitted him.
We vacate Counts I and V and remand them for a new
trial, affirm Count VI, and order a sentence on Count VI of
60 months imprisonment.
I. BACKGROUND
I. BACKGROUND
A. Relevant Facts
A. Relevant Facts
1. The Government's Case
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The government's theory at trial was that Lanoue
and his co-defendant Albert Cole (Cole) stole a 1986
Oldsmobile Firenza, and that they and their co-defendant
Patrick Meade (Meade) used the car in an attempted robbery of
an armored car courier. The government's case consisted
primarily of the testimony of fourteen of the approximately
fifty FBI agents and Rhode Island State police officers who
conducted a massive land and air surveillance of Lanoue and
the Oldsmobile and assisted in his arrest.
On December 17, 1993, eight FBI agents attached a
tracking device to a 1986 Oldsmobile Firenza located in the
lot of American International Leasing in Worcester,
Massachusetts. On December 19, 1993, Lanoue and Cole brought
the Oldsmobile to a farm in Pascaog, Rhode Island. The
farm's owner, Kenneth Gareau (Gareau), was a friend of Cole's
who repaired cars. He testified that Cole asked him to
repair the front end, that he said he could get to it in a
week or so, that it "looked like" Cole took the license plate
off the Oldsmobile and put it in the trunk, and that Cole and
Lanoue then departed.
American International Leasing reported the
Oldsmobile stolen on December 21, 1993. Agents conducting
surveillance from an airplane observed Lanoue and Cole return
to the farm on the morning of December 23, 1993, and drive
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the Oldsmobile to the Ames Plaza in Bellingham,
Massachusetts, where they met Meade.
While the defendants were parked between a pizza
parlor and a liquor store in a lot adjacent to the Ames lot,
an unmarked armored car, that appeared to be an ordinary Ford
Aerostar van, parked in front of the main entrance to the
Ames store. A uniformed courier exited the van and entered
the Ames store. Several minutes later, Lanoue and Cole drove
from the adjacent lot to the Ames lot and parked. Lanoue was
arrested as he walked towards the main entrance of the Ames
store. He had a loaded 38 caliber Colt revolver with an
obliterated serial number in his waistband. One of the
arresting officers testified that Lanoue immediately said:
"I am Mitch.1 You got me. I am gone for life. I have a
piece." Another testified that when he asked Lanoue where
the other vehicles were, he stated: "You know everything.
That's why you're here. I am here alone." Another agent
testified that after Lanoue was taken into custody he said,
"I wonder who the rat was on this job." And another agent
testified that Lanoue said that he would die in prison no
matter how long his sentence was because he was 72 years old.
Cole was arrested in the Oldsmobile, which bore a
stolen license plate. The ignition was not "popped" and the
keys were in it. Meade was arrested in his own car on the
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1. Lanoue was known as Mitch.
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other side of the lot with a loaded Smith and Wesson 36
caliber revolver in his pocket.
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2. The Defendant's Case
Although the law enforcement witnesses did not
offer to explain how they came to attach a tracking device to
the Oldsmobile and follow its and Lanoue's movements
thereafter, cross examination revealed that an informant had
provided FBI Agent Brosnan, the case agent, with information
that Lanoue and others planned to steal the car and use it in
an armored car robbery.
The defense theory was that the informant was
Richard Laraviere (Laraviere), and that the information he
provided and upon which the investigation and prosecution
rested, was false. According to the defense, Lanoue bought
the Oldsmobile from Laraviere, who then falsely informed the
FBI that Lanoue was planning to steal the car and use it in
an armored car robbery in order to obtain favorable treatment
on theft charges pending against him in Massachusetts. The
defense suggested that the government was eager to believe
Laraviere and assemble a small army to arrest Lanoue because
Lanoue had been found not guilty in a case tried by the same
prosecutor in 1991. The defense emphasized that the
government had not called Laraviere to testify, although he
was the only witness who could corroborate its theory that
Lanoue stole the Oldsmobile.
Lanoue testified and called Charles Carron (Carron)
as a witness to corroborate his own testimony. They both
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testified in effect as follows. On December 17, 1993, Lanoue
was helping Carron remove debris from his house when
Laraviere arrived. Laraviere was a millionaire who owned
real estate and had once owned a used car dealership. He
previously had offered to sell Lanoue a car which Lanoue
declined to buy. On this occasion, Lanoue mentioned that he
wanted to buy a car for his daughter. Laraviere responded
that one of his tenants had abandoned an Oldsmobile that he
wanted to sell and said that it was located at American
International Leasing in Worcester, which he implied he owned
or partially owned. The three drove to American
International Leasing, Laraviere obtained the keys from an
employee there, and they took the Oldsmobile for a test
drive.
Carron testified that upon their return to the lot,
he observed Lanoue and Laraviere having a discussion and then
saw Lanoue remove money from his wallet and hand it to
Laraviere. Lanoue testified that he and Laraviere agreed on
a price of $500, that he gave Laraviere a down payment of
$200, and that they agreed that Lanoue would pay the balance
and take the car on Sunday, December 19.
Lanoue testified that on December 19, he and Cole
drove to American International Leasing in Lanoue's truck,
that he paid Laraviere the $300 balance and then drove off in
the Oldsmobile with Cole following in the truck. Lanoue
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testified that as he drove the Oldsmobile back to Rhode
Island, he noticed that there was something wrong with the
front end. He and Cole therefore took the Oldsmobile to
Gareau to be repaired. On December 23, Lanoue and Cole
picked up the car on the way to the Ames Plaza where they
planned to go Christmas shopping. Lanoue soon found out that
Gareau had not worked on the car and took it to another
garage, but the person he wanted to look at it was not there.
He and Cole then proceeded to the Ames Plaza where they met
Meade. As Lanoue walked towards the Ames store where he
planned to buy a watch, he was arrested. After Lanoue
rested, Cole testified in his own behalf, confirming Lanoue's
account of events on December 19 and 23.
Lanoue testified that he carried a gun for
protection, explaining that his life had been threatened
before and that the police had laughed when he reported it
because he had a criminal record. Lanoue acknowledged that
he had cleaned the revolver, denied that he had obliterated
its serial number, but did not deny that he knew it was
obliterated. Lanoue admitted to stating, "I have a piece on
me," and that when an agent asked him who was with him he
responded that he was alone, meaning that he was alone when
he was arrested. He denied making the other statements
government witnesses attributed to him.
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Lanoue and Carron also gave testimony indicating
that Laraviere provided false information in this case in
order to gain favorable treatment on pending criminal
charges. Carron testified that Laraviere had once stored
boating equipment in his garage. When Carron later learned
that it was stolen, he reported it to the police, who removed
the property and told him that Laraviere had a reputation for
claiming that property he had stolen had been stolen by
someone else.
Lanoue testified that Laraviere had told him
shortly before his own arrest that he had been indicted on
fifty-seven counts of theft in Massachusetts, and that he
would soon have to begin serving a two-year sentence for
those charges pursuant to a plea, unless he could do
something to avoid it. To that end, Laraviere offered to pay
Lanoue to frame the witness against him in that case. Lanoue
testified that he believed Laraviere had not gone to jail
because he falsely informed the government that Lanoue
planned to steal the Oldsmobile and rob an armored car.
Carron testified that he had visited Lanoue once
after his arrest while Lanoue was awaiting trial at the
Donald W. Wyatt Detention Center in Central Falls, Rhode
Island. Shortly thereafter, two FBI agents and a state
police detective visited him, refused to leave his home,
subpoenaed him to testify at Lanoue's trial, and threatened
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that if he did not testify against Lanoue, they would see to
it that his pension check and his girlfriend's disability
check or her job at the post office were taken away.
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B. Proceedings Below
B. Proceedings Below
Lanoue, Cole and Meade were charged in a six-count
redacted indictment.2 All three were charged in Count I
with conspiracy to commit federal offenses, 18 U.S.C. 371;
in Count II with conspiracy to interfere with commerce by
robbery, Hobbs Act, 18 U.S.C. 1951; in Count III with
attempt to interfere with commerce by robbery, Hobbs Act, 18
U.S.C. 1951; and in Count IV with using and carrying a
firearm during and in relation to an attempt or conspiracy to
commit robbery, 18 U.S.C. 924(c)(1). Count V charged
Lanoue and Cole with interstate transportation of a stolen
motor vehicle, 18 U.S.C. 2312, and Count VI charged Lanoue
alone with interstate transportation of a firearm with an
obliterated serial number, 18 U.S.C. 922(k). Counts III,
IV and V also charged the defendants with aiding and
abetting. 18 U.S.C. 2.
The trial began on October 24, 1994. On November
4, 1994, the jury convicted Lanoue of Counts I, V and VI,
acquitted him of all robbery-related charges, and acquitted
his co-defendants of all charges. On November 10, 1994,
Lanoue moved for judgment of acquittal on Counts I and VI,
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2. The grand jury returned the original indictment on
January 5, 1994. A redacted indictment was filed when one
count was dismissed by the government with leave of court on
August 17, 1994.
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which was denied on December 19, 1994. On January 13, 1995,
the court sentenced Lanoue to 175 months in prison.
II. DISCUSSION
II. DISCUSSION
A. The Discovery Violation
A. The Discovery Violation
Lanoue contends that his convictions should be
reversed because the prosecutor cross examined Carron with
Lanoue's own recorded statements which the government
concedes it failed to disclose in violation of Fed. R. Crim.
P. 16(a)(1)(A) and the pre-trial discovery order. Rule
16(a)(1)(A) provides in relevant part:
Upon request of a defendant the
government must disclose to the defendant
and make available for inspection,
copying, or photographing: any relevant
. . . recorded statements made by the
defendant, or copies thereof, within the
possession, custody, or control of the
government, the existence of which is
known, or by the exercise of due
diligence may become known, to the
attorney for the government . . . .
The trial court's pretrial discovery order required the
government to disclose "[a]ny statements of the defendant
subject to disclosure pursuant to Rule 16(a)(1)(A)," and
"[w]hether the government counsel's file indicates that any
wire or oral communications have been intercepted." Lanoue
contends that he was incurably prejudiced by the government's
use of his statements and that the trial court therefore
erred in refusing to declare a mistrial.
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1. Cross Examination of Carron with Lanoue's
Recorded Statements
Carron's cross examination proceeded in three
parts. On Thursday, October 27, the prosecutor opened the
first part by accusing Carron of threatening Laraviere:
Sir, didn't the FBI tell you the reason
they were at your premises was because
you threatened an informant in this case?
Did you ever threaten Mr. Richard
Laraviere?
You ever threatened [sic] anyone?
Carron answered "No" to each of these questions. The
prosecutor attempted to impeach Carron's denial by asking if
Lanoue had told him that Laraviere was the informant in this
case, if Lanoue had then demanded that he visit him in
prison, and whether he and Lanoue had discussed Laraviere
during the visit. Carron confirmed that Lanoue had invited
him to visit him in prison in August of 1994 and that he did
so, but denied that they had discussed Laraviere. Carron
exhibited a poor memory for dates, but otherwise held up well
during this part of the cross examination. When Carron
stated that he could not swear that he had known Lanoue for
fifteen years but was sure he had not known him for thirty
years, the prosecutor began reading Lanoue's words from a
document while, in the court's words, "brandishing" it at the
witness:
Q Did Mr. Lanoue ever tell you that he
has known you for thirty years?
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A No, he never did.
Q Did Mr. Lanoue ever tell you not to trust the
cops. They know who the informant is and
that's why he wanted you to go on August the
twenty-first to meet him?
A No.
Q He didn't tell you, sir -- specifically, on
August the 20th of 1994, did Mr. Lanoue say to
you, "Let me tell you something. You don't
trust the cops. You should know that. We
forced it out of them. They got the informant
from up north near the Worcester area"?
Mr. Martin: I object.
A I don't remember that.
The court did not sustain the objection, but
directed counsel to approach the bench. The prosecutor
admitted that he had been reading Lanoue's statements from a
transcript of a recorded telephone call that Lanoue had made
to Carron from the Wyatt Detention Center while awaiting
trial, and that he had not disclosed it. The court asked the
prosecutor whether the document corroborated his questions
and he replied that it did. Defense counsel objected to the
use of the conversation because the government had withheld
it in violation of Fed. R. Crim. P. 16 and the court's pre-
trial discovery order, and requested a copy of the transcript
and a recess during which he could review it. The prosecutor
argued that defense counsel was not entitled to a recess and
that he was permitted to use the conversation because Carron
had committed perjury, it was retrieved in connection with a
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separate investigation of witness intimidation, and it was
not the fruit of a wiretap. The court directed the
prosecutor to continue his cross examination on another
subject, did not admonish him, strike the questions or
testimony, or give a curative instruction.
Part two of Carron's cross examination proceeded.
In contrast to his apparently confident answers in the first
part of his cross examination, Carron disavowed any ability
to fix a date or time period on any event, expressing concern
that the prosecutor was attempting to trap him into
committing perjury. He backed away from important parts of
his direct testimony, for example, now denying that he had
actually seen Lanoue hand Laraviere money after the test
drive.
After the court excused the jury for a lunch
recess, defense counsel moved for a mistrial, arguing that
the prosecutor had violated Fed. R. Crim. P. 16(a)(1)(A) and
the pre-trial discovery order, that Carron's credibility had
been irreparably damaged, and that he had been deprived of
the opportunity to prepare Carron with the statement or make
an informed decision whether to call him as a witness. The
prosecutor argued that he had no obligation to produce the
conversation under Fed. R. Crim P. 16(a)(1)(A) or the pre-
trial discovery order because it did not become relevant
until Carron testified inconsistently with it and it was not
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a wire intercept. The court ordered an evidentiary hearing
for the following day, and excused the jury until the
following Monday.
At the hearing on Friday, October 28, Agent
Brosnan, the FBI agent in charge of the case against Lanoue,
testified that on August 22, 1994, he requested and received
from the Wyatt Detention Center a cassette tape of a
conversation between Lanoue and Carron that took place on
August 20, 1994, which he had transcribed and provided to the
prosecutor. Agent Brosnan testified that, since Lanoue's
arrest and indictment and as part of his investigation of the
pending case, he had gone to the Wyatt Detention Center and
been permitted to listen to various tapes in an effort to
hear and obtain recordings of Lanoue's telephone
conversations with Carron, but that he found none. In April
of 1994, he requested that the facility keep track of all
calls made by Lanoue. He was told that it would be done by
spot checking, but was not notified of any of Lanoue's calls
other than that of August 20.3
In the August 20 conversation, Lanoue told Carron
that he had discovered during a recent hearing in his case
that Laraviere was the source of the government's
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3. The primary purpose of the hearing was to resolve whether
the conversation was intercepted in violation of Title III.
Jennifer Egan, Chief of Programs at the Wyatt Detention
Center, also testified at the hearing, but only on issues
relevant to the defendant's Title III claim.
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information. Lanoue did not refer to Lariviere by name but
as "your friend, the millionaire," the informant from
Worcester, and the only person who could have provided
information about the Oldsmobile on December 17. He said
that Laraviere had not gone to jail as expected, advised
Carron to be careful of Laraviere, and asked Carron to visit
him in prison. Lanoue made statements about the Oldsmobile
such as, "They know all about the car, they know about
everything," "you know I bought that car," and "that car
there that I bought at American Motors."
At the conclusion of the evidentiary hearing, the
defense again argued for a mistrial. The government conceded
that it had violated Fed. R. Crim. P. 16, but argued that the
error was made in good faith and that the defense was not
prejudiced.
On the following Monday, October 31, the court
ruled that the prosecutor's violation of Fed. R. Crim. P.
16(a)(1)(A) did not warrant a mistrial or other remedial
action. In response to the defendant's request for a
curative instruction explicitly referring to the prosecutor's
questions of the previous Thursday, the court generally
instructed the jury that if counsel's questions "indicate
that a particular thing is so, you shouldn't accept that as
being established unless and until you hear evidence that the
thing is so."
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The third part of Carron's cross examination
ensued. Contrary to his representation that he would not
refer to the conversation again, the prosecutor again asked
Carron whether he had had any conversations about Laraviere
with Lanoue after Lanoue's arrest. The court overruled the
defendant's objection, and Carron again answered that he did
not recall. Carron again expressed fear that the prosecutor
was trying to make him perjure himself. He refused to answer
"yes" or "no" to questions concerning the events he had
testified to on direct examination -- that Lanoue wished to
purchase the car for his daughter, that Laraviere had
obtained the keys at the dealership, that they then took the
car for a test drive, and that he saw Lanoue give money to
Laraviere thereafter -- instead answering "evidently," "that
was my impression," "I assume so," "I don't recall," and "I
don't recall nothing." 2.Analysis
We review the trial court's handling of the
government's discovery violation for abuse of discretion.
United States v. Hodge-Balwing, 952 F.2d 607, 609 (1st Cir.
______________________________
1991). In order to obtain a reversal on appeal, Lanoue must
show that the trial court abused its discretion in ruling on
the effect of the discovery violation. United States v.
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Tajeddini, 996 F.2d 1278, 1287 (1st Cir. 1993). We will
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order a new trial if the discovery violation caused prejudice
not cured by the trial court's remedy.
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The trial court found that no mistrial or other
remedy was warranted because: (1) the prosecutor acted in
good faith; (2) the purposes of Rule 16 were not subverted by
the withholding and use of the undisclosed evidence; and (3)
the defendant was not prejudiced. See United States v.
___ _________________
Gladney, 563 F.2d 491, 494-95 (1st Cir. 1977).
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a. Did the prosecutor act in good
faith?
The court found that the prosecutor had made a good
faith error in judgment. Such a finding depends in large
measure on whether the prosecutor's explanation was credible
and is therefore entitled to considerable deference. United
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States v. Levy-Cordero, 67 F.3d 1002, 1013 (1st Cir. 1995).
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In this case, the prosecutor's explanations for withholding
the statement were both factual and legal. To the extent the
court relied on the reasonableness of the prosecutor's legal
arguments, we temper the usual deference accorded purely
factual findings. Cf. RCI Northeast Servs. Div. v. Boston
__ _____________________________________
Edison Co., 822 F.2d 199, 203 (1st Cir. 1987) ("a finding of
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fact predicated upon, or induced by, a misapprehension of law
is robbed of its customary vitality"). We conclude that the
trial court's finding of good faith was not supported by the
facts or the law.
First, the court gave weight to the fact that the
government had not received the statement until two months
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prior to trial. But because the government's obligation to
disclose the defendant's recorded statements is a continuing
one, Fed. R. Crim. P. 16(c), that was a factor militating
against rather than in favor of a finding of good faith. Cf.
__
Tajeddini, 996 F.2d at 1287 (no bad faith where prosecutor
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was unaware of defendant's statement until the day before he
disclosed it to defense counsel three days before trial).
Instead of disclosing the statement as soon as he received it
from Agent Brosnan, two months prior to trial, the prosecutor
never disclosed it at any time before using it before the
jury. Second, the court thought that there was a
"colorable question" as to whether the statement had to be
produced because it was a "mixed statement" by the defendant
and a potential witness, so that the government only had an
obligation to produce the statement "to the extent it was a
statement of Mr. Lanoue." But this theory, even if
"colorable," does not explain the prosecutor's actions.
"[S]tatements discovered by means of electronic surveillance"
are within Rule 16(a)(1)(A). Fed. R. Crim. P. 16 advisory
committee's note. And the rule contains no exception for a
defendant's recorded statements on the basis that they
comprise one side of a conversation. The court's pre-trial
order required disclosure of any statements subject to
disclosure under Rule 16 and "[w]hether the government
counsel's file indicates that any wire or oral communications
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have been intercepted." Whether or not Carron's side of the
conversation was required to be disclosed under Rule 16, the
transcript in its entirety should have been disclosed for
purposes of determining its admissibility before trial. See
___
United States v. Latham, 874 F.2d 852, 864 (1st Cir. 1989)
________________________
(it was error for the government not to have provided
defendant with tape recordings containing conversations
between defendant and government witnesses). If the
prosecutor genuinely believed that Carron's side of the
conversation was not discoverable, the reasonable and only
permissible course would have been to seek redaction of
Carron's words.4 See Fed. R. Crim. P. 16(d)(1). Because
___
Rule 16 could not reasonably be read to allow the government
to withhold Lanoue's side of the conversation, the "mixed
statement" rationale did not support a finding of good faith.
Third, the court found that the prosecutor
genuinely believed that the statement was not relevant within
the meaning of Rule 16. The statement was relevant if it had
"any tendency to make the existence of any fact that [was] of
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4. Nothing precluded disclosure of Carron's side of the
conversation. He was not a government witness, 18 U.S.C.
3500(a), and his side of the conversation was not grand jury
testimony. United States v. McMahon, 938 F.2d 1501, 1504-05
_________________________
(1st Cir. 1991) (explaining rule that defense is not entitled
to the grand jury testimony of a defense witness until after
cross examination as being based on the need for grand jury
secrecy).
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consequence to the determination of the action more probable
or less probable than it would be without the evidence."
Fed. R. Evid. 401. Relevance is to be interpreted broadly in
the context of Rule 16(a)(1)(A). See Fed. R. Crim. P. 16
___
advisory committee's note (rejecting narrow interpretation of
defendant's right to discover own statements). The rule
gives a "defendant virtually an absolute right" to his own
recorded statements "in the absence of highly unusual
circumstances that would otherwise justify a protective
order." 2 C. Wright, Federal Practice and Procedure 253,
______________________________
at 46-47 (1982) (internal citations and quotation marks
omitted). See also United States v. Bailleaux, 685 F.2d
___ ____ ____________________________
1105, 1114 (9th Cir. 1982) (adopting broad interpretation of
relevance as applied to defendant's statements as a matter of
practicality); United States v. Haldeman, 559 F.2d 31, 74 n.
_________________________
80 (D.C. Cir. 1976) (en banc) (disclosure of defendant's
statements is "practically a matter of right even without a
showing of materiality"), cert. denied, 431 U.S. 933 (1977).
____ ______
The statement obviously was relevant. Lanoue made
statements about the Oldsmobile that were arguably both
inculpatory and exculpatory.5 He discussed the informant,
who was a potential government witness, and made statements
____________________
5. On appeal, Lanoue does not press his contention at trial
that the conversation was required to be disclosed as
exculpatory evidence.
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relevant to the defense theory that the government's case
rested on false information provided by that informant. See
___
United States v. Noriega, 764 F. Supp. 1480, 1494 (S.D. Fla.
_________________________
1991) (conversations of defendant recorded in prison about
potential government witnesses were relevant within the
meaning of Rule 16(a)). Even assuming that the government
could not envision the statement's relevance before trial, it
certainly understood its relevance when defense counsel
outlined the defense theory in his opening statement.
The reasons proffered by the prosecutor in support
of his belief that the statement was not relevant -- that it
was obtained in a separate investigation of alleged witness
intimidation, that the conversation did not become relevant
until Carron testified inconsistently with it, and that he
did not expect Carron to testify about Laraviere -- were
without basis in fact or law.
Rule 16(a)(1)(A) contains no exception for a
defendant's recorded statements if they are obtained in
connection with a separate investigation, so long as they are
relevant to the pending case. "[A]cceptance of the language
for just what it says is dictated by the fundamental fairness
of granting the accused equal access to his own words, no
matter how the government came by them." United States v.
__________________
Caldwell, 543 F.2d 1333, 1353 (D.C. Cir. 1974), cert. denied,
________ ____ ______
423 U.S. 1087 (1976). Moreover, it appears that Agent
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Brosnan obtained the conversation in connection with his
investigation of the pending case. For at least six months
prior to trial, he had been attempting to obtain telephone
conversations between Lanoue and Carron as part of his
investigation of the case pending against Lanoue. The
prosecutor stated that he knew about and approved that
activity, and that immediately after obtaining the August 20
conversation, he subpoenaed Carron to testify against Lanoue
in the pending case. It is therefore difficult to credit the
"separate investigation" rationale. In any event, the
conversation contained Lanoue's statements that were relevant
to the charges pending against him and his defense to those
charges. Those statements therefore were required to be
disclosed by the plain terms of Rule 16.
As to the prosecutor's contention that the
conversation did not become relevant until Carron testified
inconsistently with it, the government's duty to disclose a
defendant's relevant recorded statements does not hinge on
whether or when the government uses the statement. Only an
oral statement to a known government agent is required to be
disclosed "if the government intends to use that statement at
trial." Fed. R. Crim. P. 16(a)(1)(A). But even that type of
statement is required to be disclosed regardless of whether
the government intends to introduce it in its case-in-chief,
use it for impeachment, or introduce it in rebuttal. See Fed.
___
-24-
24
R. Crim. P. 16 advisory committee's note to 1991 amendment.
Rule 16(a)(1)(A) is unequivocal that the government "must
disclose . . . any relevant . . . recorded statements made by
the defendant." Even an illegally obtained inconsistent
statement of a defendant that can only be used to impeach him
(but not a defense witness), Harris v. New York, 401 U.S. 222
__________________
(1971); James v. Illinois, 493 U.S. 307, 313 (1990), must be
_________________
produced to him under Fed. R. Crim. P. 16(a)(1)(A). See,
___
e.g., United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975).
____ ______________________
The government's theory that Lanoue's statements were not
relevant until a witness testified inconsistently with some
part of the conversation was therefore erroneous,
particularly where Carron was not cross examined about his
own statements, but about Lanoue's. See United States v.
___ _________________
Scafe, 822 F.2d 928, 935 (10th Cir. 1987) (government
_____
violated Rule 16 by withholding defendant's letters and using
them to cross examine defense witness).
The prosecutor's representations that he did not
expect Carron to testify until the day before he testified,
and that even then he did not expect Carron to testify about
Laraviere's character, were irrelevant because, as explained,
Rule 16(a)(1)(A) requires the government to disclose the
defendant's recorded statements regardless of whether or when
it intends to use them. Moreover, it is difficult to credit
the government's representation. The recorded conversation
-25-
25
itself and defense counsel's opening statement put the
government on notice that Carron would testify about
Laraviere.
Finally, the court noted that, although the
prosecutor could have tried to conceal the violation, he did
not. It is true that the prosecutor immediately admitted
that he held a transcript of the defendant's recorded
conversation in his hand and that he had not disclosed it,
and conceded the next day, with a myriad of excuses, that he
had violated Rule 16. We will not overlook a prosecutor's
failure to know or follow the discovery rules on the basis
that he did not try to hide the violation.
In any event, whether the prosecutor withheld the
defendant's statements in good faith or intentionally has
little to do with whether the court should have declared a
mistrial, since prosecutorial good faith could have no
mitigating effect on the prejudice flowing from the
violation. See United States v. Padrone, 406 F.2d 560 (2d
___ _________________________
Cir. 1969) (granting new trial where inadvertent non-
disclosure of defendant's statement affected trial strategy).
b. Were the purposes of Rule 16
subverted?
Rule 16's mandatory discovery provisions were
designed to contribute to the fair and efficient
administration of justice by providing the defendant with
-26-
26
sufficient information upon which to base an informed plea
and litigation strategy; by facilitating the raising of
objections to admissibility prior to trial; by minimizing the
undesirable effect of surprise at trial; and by contributing
to the accuracy of the fact-finding process. See United
___ ______
States v. Alvarez, 987 F.2d 77, 84-86 (1st Cir. 1993), cert.
__________________ ____
denied, __ U.S. __, 114 S. Ct. 147 (1993); Fed. R. Crim. P.
______
16 advisory committee's note. The trial court found that the
government's discovery violation had not undermined the
purposes of Rule 16 because it did not cause the defendant to
unknowingly subject himself to impeachment;6 Rule 16 was not
intended to protect against surprising a witness with an
inconsistent statement; and it may have actually assisted the
accuracy of the fact-finding process by surprising the
witness.
All of these reasons miss the point because the
government cross examined Carron by referring to and reading
Lanoue's, and not Carron's, words. Lanoue had a right under
the Federal Rules of Criminal Procedure to discover his
recorded statements and to prepare for trial and devise a
defense strategy based on the evidence disclosed. Alvarez,
_______
987 F.2d at 85. The court's reasoning that surprising a
witness with the defendant's statements promoted accuracy and
____________________
6. Lanoue testified after Carron, and therefore after the
discovery violation came to light.
-27-
27
therefore militated against remedial action turns Rule 16 on
its head. Due to the nondisclosure, the defense was deprived
of the opportunity to refresh Carron's recollection and to
investigate the circumstances surrounding the conversation.
This unfairly surprised the defense and deprived it of the
opportunity to design an intelligent litigation strategy that
responded to the statement.
We also note that it is far from clear that the
cross examination assisted the accuracy of the trial. The
government opened its cross examination by accusing Carron of
threatening Laraviere. At sidebar the prosecutor stated that
Carron had threatened Laraviere, but proffered nothing to
support the accusation other than to say that the document
from which he read corroborated his questions. The
conversation contained no mention of threats. In it, Lanoue
told Carron that Laraviere was the informant, that his lawyer
was putting an investigator on Laraviere, that he should not
warn Laraviere, and that he should be wary of Laraviere. We
doubt that this was a sufficient basis for asking Carron
whether he had threatened Laraviere, and it plainly was an
insufficient basis for asking if he had ever threatened
anyone. Cf. United States v. Lilly, 983 F.2d 300, 306 (1st
___ ______________________
Cir. 1992) (prosecutor's explanation for asking question was
plausible where he had in hand a judicial opinion finding
appellant was not a credible witness); United States v.
_________________
-28-
28
Gomez-Pabon, 911 F.2d 847, 857 n.5 (1st Cir. 1990)
___________
(expressing doubt that prosecutor's questions to defense
witness about whether he was under investigation for drug
smuggling were improper since the prosecutor volunteered to
call witnesses to attest to the foundation of the questions),
cert. denied, 498 U.S. 1074 (1991); United States v. Madrid
____ ______ _______________________
Ramirez, 535 F.2d 125, 129 (1st Cir. 1976) (appellant not
_______
prejudiced by question to defense witness about prior offense
because it was based on an actual conviction). Carron
apparently was not charged with threatening Laraviere. The
government did not present evidence in its rebuttal case to
refute Carron's description of the FBI agents' visit in which
he said that the agents pressured him to testify against
Lanoue, not that they accused him of threatening Laraviere.
The government was free to show through admissible evidence
that its informant had been threatened, but it offered no
such evidence. Nonetheless, the jury may well have received
the impression from the prosecutor's improper questions that
Laraviere did not testify because Carron had threatened him.
If Lanoue's counsel had been able to refresh Carron's
recollection with the transcript of the conversation, the
jury would have been warranted in reaching the conclusion
that Laraviere did not testify because his testimony would
not have helped the government.
-29-
29
The prosecutor's failure to disclose the
conversation at any time before using it also subverted Rule
16's purpose of facilitating the fair and efficient pre-trial
determination of the admissibility of Lanoue's statements.
Although an evidentiary hearing was held, it was not until
after the prosecutor had already used the statements before
the jury. Moreover, we think the hearing was unfairly
truncated due to the government's late disclosure. After
Agent Brosnan testified, defense counsel attempted to obtain
the presence of the Wyatt Detention Center employee who
provided Agent Brosnan with the conversation in order to
explore whether it was intercepted as a result of monitoring
directed specifically against Lanoue, which was relevant to
its admissibility under Title III. Ms. Egan, Director of
Programs at the facility, responded that the employee would
not attend the hearing because it was his day off. The court
refused the defendant's request for a recess during which the
prosecutor could convince Ms. Egan of the importance of the
employee's attendance. If the conversation had been
disclosed two months prior to trial when it should have been,
defense counsel could have obtained any necessary witnesses.
The incomplete mid-trial hearing necessitated by the
prosecutor's failure to disclose was neither fair nor
efficient.
c. Was Lanoue prejudiced?
-30-
30
The court found that Lanoue had not been prejudiced
for the following reasons: although the government had done
an effective job of impeaching Carron, the statement played
little role in that process because it was peripheral to
Carron's testimony and the defense theory; Carron denied that
Lanoue made the statements; and the statements had not been
introduced into evidence.
The improper questions based on Lanoue's statements
were not peripheral to Carron's testimony and the defense.
At the close of the government's case-in-chief, the evidence
concerning the stolen vehicle charge was that the Oldsmobile
was reported stolen on December 21 and that Lanoue was
driving it on December 19 and again on December 23. The
defense, consisting of Lanoue's and Carron's testimony, was
that Lanoue had purchased the car from Laraviere, who had
represented that the car was his to sell and then falsely
informed the FBI that Lanoue was planning to steal the car in
order to obtain favorable treatment on pending theft charges.
If the jury believed that testimony, it would have had
grounds for acquitting Lanoue of the stolen vehicle charge.
A key element of the defense, argued in both
opening and closing, was that the informant upon whose
information the government's entire case rested did not
testify at trial. Indeed, the government clearly recognized
that Laraviere's absence and the implication that he had
-31-
31
provided false information could defeat its case. The
government objected when the defense attempted to elicit the
informant's name and the exact information he had provided,
and urged the jury in closing argument to ignore Laraviere's
absence. Yet it offered no evidence to explain his absence,
other than the improper questions accusing Carron of
threatening Laraviere and insinuating that the threat stemmed
from a conversation with Lanoue. As the government intended,
these questions had a detrimental effect on a defense that
was otherwise uncontradicted. Cf. United States v. Lewis, 40
___ ______________________
F.3d 1325, 1340 (1st Cir. 1994) (no prejudice to the defense
due to government's delayed fingerprint analysis because
there was ample evidence to refute and none to support the
defendant's theory that he was framed).
Lanoue also was prejudiced because the failure to
disclose his statements deprived him of the opportunity to
effectively prepare for trial and to design an intelligent
trial strategy. See Alvarez, 987 F.2d at 85; United States
___ _______ _____________
v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S.
_________ ____ ______
1218 (1984); Gladney, 563 F.2d at 494. If the conversation
_______
had been disclosed two months before trial as it should have
been, Lanoue would have known that Agent Brosnan obtained it
in connection with a "separate investigation of witness
intimidation." Lanoue's counsel would then have been able to
investigate whether there was such an investigation and, if
-32-
32
so, what came of it, enabling him to either prepare Carron
for cross examination on that subject or make an intelligent
decision not to call him as a witness.
Carron's denial that Lanoue made the statements
militates in favor of rather than against a finding of
prejudice because defense counsel was deprived of the
opportunity to refresh Carron's recollection about the
content of the conversation. See United States v. Rodriguez,
___ __________________________
799 F.2d 649, 654 (11th Cir. 1986) (defendant's denial of the
existence of undisclosed items bolstered rather than weakened
his claim for a mistrial because it deprived him of the
opportunity to support the denial or refresh his
recollection, thus defeating purposes of the discovery
requirement). Carron answered "no," and then finally "I
don't remember that" to questions asking him if Lanoue had
made statements about Laraviere, while the prosecutor
referred to, read from, and brandished a document obviously
containing those statements. The defense should have been
able to refresh Carron's recollection about what Lanoue said
to him.
Furthermore, Carron was thoroughly unnerved by the
prosecutor's use of specific dates while referring to the
transcribed conversation. To be sure, he was uncertain about
specific dates and time frames throughout his testimony.
This may or may not have detracted from his overall
-33-
33
credibility but when the prosecutor began to brandish the
transcript, it received a major blow. Thereafter, Carron
refused to directly answer any question concerning dates, and
eventually any question at all, expressing fear of being
trapped into committing perjury. If defense counsel had had
access to the transcript, he could have attempted to refresh
Carron's recollection. Failing that, he could have decided
not to call Carron as a witness at all. Instead, the
government was able to destroy, with the defendant's own
statements, the credibility of the only defense witness who
testified to the defense theory other than the defendant
himself.
That the statement was not actually introduced in
evidence does not show lack of prejudice. An improper
question alone can require a mistrial or other potent remedy
if it causes prejudice. See Rodriguez, 799 F.2d at 654
___ _________
(district court erred in denying mistrial on the basis that
the undisclosed material was not introduced into evidence
where the government's use of the material in questioning
defendant was just as effective as if it had been
introduced); Padrone, 406 F.2d at 560 (although undisclosed
_______
statement was not introduced, district court erred in failing
to grant mistrial where defendant's direct testimony was
inconsistent with the statement). Here, the government's
failure to disclose the conversation and its questions based
-34-
34
on the conversation could well have led to the destruction of
Carron's credibility and undermined the defense theory. That
the conversation was not introduced in evidence did not erase
or mitigate the prejudice. d .
Did the trial court take appropriate action to cure
and prevent prejudice?
When a party fails to comply with Fed. R. Crim. P.
16, the court is empowered to order that party to comply with
the rule, grant a continuance, exclude the evidence, or enter
other just relief. Fed. R. Crim. P. 16(d)(2). What remedy
should be applied depends on the "seriousness of the
violation and the amount of prejudice to the defendant."
Gladney, 563 F.2d at 494. Here, the violation was serious
_______
and likely to have caused serious prejudice. Because the
statement was not disclosed at any time before the government
used it, or in enough time that the defense could make use of
it, a mistrial was the only appropriate remedy. We do not
decide whether the court would have acted within its
discretion if it had taken more forceful measures than it
did, but we note that the court could have stricken the
questions, given an immediate and explicit curative
instruction, granted the defendant's request for a recess,
and even halted the cross examination and then allowed
redirect.
Moreover, the court did not act to prevent further
prejudice. Although the prosecutor had represented that he
-35-
35
would not refer to the conversation again, he reminded the
jury of the statements he had read four days earlier by
asking Carron whether he had had any conversations about
Laraviere with the defendant after the defendant's arrest.
Defense counsel's objection was overruled, and Carron again
answered that he did not recall. By overruling the
objection, the court tacitly approved the improper question
in the jury's presence. See United States v. Manning, 23
___ _________________________
F.3d 570, 575 (1st Cir. 1994). The government argues on
appeal that the trial court did not abuse its discretion
because it eventually gave Lanoue's counsel the opportunity
to review the statement with Carron to determine whether he
wished to recall him. The court ignored defense counsel's
immediate request for a recess and to be given the statement.
The court denied his request for a recess at the conclusion
of Carron's cross examination so that he could prepare him
for redirect. Instead, the court permitted Lanoue's counsel
to meet with Carron for the first time during a later recess
in the middle of Lanoue's direct testimony, ruling that he
could recall Carron to the witness stand if his reasons for
doing so were sufficient.
This is not a case of merely delayed disclosure
where "the critical inquiry is . . . whether the tardiness
prevented defense counsel from employing the material to good
effect." United States v. Osorio, 929 F.2d 753, 757 (1st
_________________________
-36-
36
Cir. 1991). The government's use of the conversation without
disclosing it at all precluded Lanoue's counsel from using it
to any effect. When he twice requested a recess in an
attempt to mitigate the harm already done, those requests
were denied. Cf. Hodge-Balwing, 952 F.2d at 609 (defendant
___ _____________
failed to show prejudice where court ordered the government
to hand over the case report before the witness testified and
defendant failed to seek a continuance); Hemmer, 729 F.2d at
______
13 (defendants failed to show prejudice where they received
reports, used them in their defense, and failed to seek a
continuance). We do not fault Lanoue's counsel for declining
to recall Carron at a point when he was in shambles as a
witness as the result of the government's violation of the
rules and the trial court's utter failure to send a message
to the witness, the jury or counsel that the government's
questions were improper.
Count V is vacated and remanded for a new trial
because Lanoue plainly was prejudiced in defending against
the stolen motor vehicle charge. There was no prejudice with
respect to Count VI because Carron's testimony did not touch
on whether Lanoue knowingly transported a firearm with an
obliterated serial number.
Although it is a more difficult question, we
believe that Lanoue also suffered prejudice as to Count I,
the conspiracy count. The jury was instructed that it could
-37-
37
convict Lanoue of conspiracy if it found he conspired to
commit any one or more of six object offenses: (1)
interstate transportation of a stolen motor vehicle, 18
U.S.C. 2312; (2) possession of a stolen motor vehicle that
had crossed state boundaries, 18 U.S.C. 2313; (3)
interstate transportation of a firearm by a convicted felon,
18 U.S.C. 922(g)(1); (4) using or carrying a firearm during
and in relation to an attempt or conspiracy to commit
robbery, 18 U.S.C. 924(c)(1); (5) interstate possession of
a stolen firearm (referring to Meade's revolver), 18 U.S.C.
922(j); or (6) interstate transportation of a firearm with an
obliterated serial number (referring to Lanoue's revolver),
18 U.S.C. 922(k). The object offenses best supported by
the evidence were the two relating to the stolen Oldsmobile,
with respect to which Lanoue was prejudiced. Unless we can
conclude with fair assurance that the jury relied on one of
the other four objects, we must reverse the conspiracy
conviction. Cf. United States v. Morrow, 39 F.3d 1228, 1236
___ _______________________
(1st Cir. 1994) (erroneously admitted evidence was harmless
where it was used to prove an object of the conspiracy to
which defendant was never tied and it was a "virtual
certainty" that jury convicted him for his involvement in the
other object offense), cert. denied, __ U.S. __, 115 S. Ct.
____ ______
1328 (1995).
-38-
38
The evidence of a conspiracy to commit any of the
latter four object offenses was not overwhelming, and the
jury's verdicts give us little confidence that it relied on
any of them to find Lanoue guilty of conspiracy. The jury
necessarily rejected all of them as objects of an agreement
by Cole or Meade when it acquitted them of Count I. Although
we could not conclude from this that there was insufficient
evidence of a conspiracy, United States v. Bucuvalas, 909
____________________________
F.2d 593, 597 (1st Cir. 1990), the question we address here
is not what a rational jury could conclude but "rather what
effect the error had or reasonably may be taken to have had
upon the jury's decision" in this case. Kotteakos v. United
___________________
States, 328 U.S. 750, 764 (1946).
______
The fourth object offense, using or carrying a
firearm during and in relation to a crime of violence, was
charged as a substantive offense in Count IV. The court
instructed the jury that it could find a defendant guilty of
Count IV if it found that he (1) committed either the Hobbs
Act attempted robbery or the Hobbs Act conspiracy to commit
robbery, and (2) knowingly used or carried a firearm during
or in relation to that crime or those crimes; or if it found
that he aided and abetted that offense. The jury found all
three defendants not guilty of using or carrying a firearm
during and in relation to an attempt or conspiracy to commit
robbery, and of aiding and abetting that offense; not guilty
-39-
39
of Count II, the Hobbs Act conspiracy; and not guilty of
Count III, the Hobbs Act attempt, and of aiding and abetting
that offense. Under these circumstances, we think that the
jury necessarily rejected, as an object of the Count I
conspiracy, using or carrying a firearm during and in
relation to an attempt or conspiracy to commit robbery.7
The third and fifth object offenses, interstate
transportation of a firearm by a convicted felon (Lanoue),
and interstate possession of a stolen firearm (Meade's), were
not charged as substantive offenses against any of the
defendants. The sixth, interstate transportation of Lanoue's
firearm with an obliterated serial number, was charged as a
substantive offense in Count VI against Lanoue alone, and the
jury found him guilty of it, but there was no evidence that
any co-conspirator knew that the serial number was
obliterated.8 Given the dearth of evidence that Lanoue
conspired with anyone else who possessed the requisite
knowledge and intent to commit these offenses, and the fact
that the jury rejected each of them as a basis for a
____________________
7. Because the jury expressly acquitted Lanoue of violating
18 U.S.C. 924(c)(1), and necessarily rejected that offense
as an object of the Count I conspiracy, the Supreme Court's
recent definition of the "use" element of a violation of 18
U.S.C. 924(c)(1), Bailey v. United States, 64 U.S.L.W. 4039
_______________________
(U.S. Dec. 6, 1995), is not implicated.
8. Indeed, the government does not argue on appeal that
there was sufficient evidence to support a conspiracy to
possess Meade's stolen firearm or Lanoue's firearm with an
obliterated serial number.
-40-
40
conspiracy conviction against Cole and Meade, we think that
the likelihood is remote that the jury found that Lanoue
conspired with anyone else to commit them.
The object offenses best supported by the evidence
were the two relating to the stolen car. From what we can
glean of the jury's reasoning in this case, it is likely they
either rejected the other object offenses, or found a
conspiracy to transport a stolen car and did not attempt to
reach agreement on the other object offenses. We cannot
conclude that the erroneous use of Lanoue's statements did
not substantially sway the jury's conspiracy verdict,
Kotteakos, 328 U.S. at 765, and therefore vacate and remand
_________
Count I for a new trial.
B. Title III
B. Title III
Lanoue objected to use of the conversation at trial
and seeks reversal on appeal on the additional ground that it
was intercepted in violation of Title III. Title III
prohibits, subject to certain exceptions, the interception of
telephone conversations in the absence of a court order. See
___
18 U.S.C. 2511(1), 2516. Neither the contents of an
intercepted telephone conversation nor any evidence derived
therefrom may be received in evidence, or used to impeach a
witness, if disclosure of that information would violate
Title III. 18 U.S.C. 2515. Title III's protections extend
to prisoners' conversations over institutional telephones.
-41-
41
See, e.g., Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979);
___ ____ __________________
United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987),
_______________________
cert. denied, 485 U.S. 1021 (1988). Its prohibitions would
____ ______
not apply in this case if a party to the conversation gave
prior consent to the interception, 18 U.S.C. 2511(2)(c), or
if the conversation was intercepted "by an investigative or
law enforcement officer in the ordinary course of his
duties." 18 U.S.C. 2510(5)(a)(ii).
After an evidentiary hearing, the trial court ruled
that the interception and use of Lanoue's conversation did
not violate Title III because he impliedly consented to the
interception.9 We need not decide this issue because we
vacate the convictions on Counts I and V on the basis of Rule
16. Moreover, because the factual record is undeveloped in
important respects, and the parties have not briefed or
argued certain relevant issues on appeal, we cannot decide
whether the conversation may be used at a new trial. But
because we are sufficiently concerned about whether the Wyatt
Detention Center intercepted Lanoue's conversation in
compliance with Title III, we offer the following guidance to
the judge presiding over the new trial.
The record reveals that the Wyatt Detention Center
is owned and operated by Cornell Cox Management, a private
____________________
9. The government did not contend that Carron consented to
the interception.
-42-
42
corporation. Pursuant to an agreement with the United States
Marshal's office, it houses federal prisoners awaiting trial.
Neither the record facts nor the parties' briefs disclose
what regulations applied to or were followed by the Wyatt
Detention Center, but federal regulations require federal
prisons to establish procedures for monitoring inmate
telephone calls and to notify inmates of the monitoring
policy. 28 C.F.R. 540.102 (1995). The Federal Bureau of
Prisons requires notice to be posted at all monitored
telephones "advis[ing] the user that all conversations from
that telephone are subject to monitoring and that use of the
telephone constitutes consent to this monitoring," and
requires each inmate to sign an acknowledgement form stating
the same. Federal Bureau of Prisons Program Statement
5264.05 6 (April 25, 1994). Consent has been held properly
to have been implied when notice was given according to these
standards. See, e.g., Amen, 831 F.2d at 379. The record
___ ____ ____
indicates that Lanoue did not receive notice even approaching
these standards. Deficient notice will almost always defeat
a claim of implied consent. See Williams v. Poulos, 11 F.3d
___ ___________________
271, 282 (1st Cir. 1993); Campiti, 611 F.2d 390, 393.
_______
Keeping in mind that implied consent is not constructive
consent but "'consent in fact,'" consent might be implied in
spite of deficient notice, but only in a rare case where the
court can conclude with assurance "'from surrounding
-43-
43
circumstances . . . that the [party] knowingly agreed to the
_________ ______
surveillance.'" Griggs-Ryan v. Smith, 904 F.2d 112, 116-17
____________________
(1st Cir. 1990) (quoting Amen, 831 F.2d at 378) (emphasis
____
supplied). We emphasize that "consent should not casually be
inferred," Griggs-Ryan, 904 F.2d at 117, particularly in a
___________
case of deficient notice. The surrounding circumstances must
convincingly show that the party knew about and consented to
the interception in spite of the lack of formal notice or
deficient formal notice.
The trial court did not rely on the law enforcement
exception because the government offered no evidence or legal
authority to show that the employees of the Wyatt Detention
Center who intercepted Lanoue's conversation were "officer[s]
of the United States or of a State or political subdivision
thereof . . . empowered by law to conduct investigations of
or make arrests for offenses enumerated in [section 2516]."
18 U.S.C. 2510(7). If the government can establish that
the employees who intercepted Lanoue's conversation had the
requisite status and powers by law, they must also have been
acting in the ordinary course of duty when they did so.
The conversation was intercepted when it was heard
by someone other than Lanoue and Carron, whether by listening
as the conversation took place or by tape recording and
listening thereafter. See Deal v. Spears, 980 F.2d 1153,
___ _______________
1158 (8th Cir. 1992); George v. Carusone, 849 F. Supp. 159,
__________________
-44-
44
163 (D. Conn. 1994). In Campiti, we held that the ordinary
_______
course of duties exception did not apply where the
interception was done outside the usual routine and without
notice, was focused on Campiti, and was not reasonably
related to maintaining security at Walpole. 611 F.2d at 390,
392.10 As noted previously, the employee who located the
conversation and provided it to Agent Brosnan did not testify
at the hearing. If the call was intercepted to gather
evidence for Agent Brosnan's investigation, rather than for
prison security purposes, it was not done in the ordinary
course of duty.
If neither exception applies, the conversation may
not be offered in evidence or used to impeach any witness
other than Lanoue. According to the "impeachment" exception
allowing use of illegally intercepted communications to
impeach a testifying defendant (but not a witness), Lanoue's
statements in the conversation may be used for the limited
purpose of impeaching him on matters plainly within the scope
of his direct examination. Williams, 11 F.3d at 287 & n.35.
________
____________________
10. Again, the record does not disclose what regulations
applied to or were followed by the Wyatt Detention Center,
but federal regulations state that the purpose of inmate
telephone monitoring is "to preserve the security and orderly
management of the institution and to protect the public." 28
C.F.R. 540.102. "Requests for information (e.g.,
subpoenas) on monitored calls are to be directed to the
Regional Counsel." Federal Bureau of Prisons Program
Statement 5264.05 6 (April 25, 1994).
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C. Sufficiency of the Evidence
C. Sufficiency of the Evidence
Lanoue argues on appeal, as he did in his motion
for judgment of acquittal, that the evidence adduced at trial
was insufficient for the jury to have convicted him of
conspiracy (Count I) or interstate transportation of a
firearm with an obliterated serial number (Count VI). In
assessing a claim of insufficiency of the evidence, we
examine the record in the light most favorable to the
verdict, drawing all reasonable inferences and credibility
determinations in its favor, in an effort to ascertain
whether the proof would have allowed a rational jury to find
the defendant guilty beyond a reasonable doubt. See United
___ ______
States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995).
_________________
1. Count I - Conspiracy
Lanoue argues that no rational jury could conclude
beyond a reasonable doubt that he conspired with anyone else
who possessed the requisite criminal intent, especially
because his co-defendants were acquitted. The government
argues that there was sufficient evidence from which the jury
could conclude that Lanoue conspired with Cole. The
government correctly argues that we cannot assume that the
acquittal of Lanoue's co-defendants reflects a failure of
proof rather than leniency or compromise, Bucuvalas, 909 F.2d
_________
at 597, and Lanoue is correct that if we find the evidence of
conspiracy insufficient against the alleged co-conspirators,
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the evidence against him also would be insufficient. Id. at
__
596.
Our review of the record persuades us that the
trial court correctly ruled that there was sufficient
evidence from which the jury could conclude beyond a
reasonable doubt that Lanoue conspired with Cole to transport
a stolen automobile in interstate commerce and to possess a
stolen automobile that had crossed a state boundary.11 The
Oldsmobile was reported stolen on December 21. Lanoue and
Cole took it from Massachusetts to Rhode Island on December
19, and from Rhode Island to Massachusetts on December 23.
The jury was free to reject Lanoue's and Carron's testimony
that Lanoue purchased the car from Laraviere after Lariviere
represented that the car was his to sell. Because we hold
that the government's surprise use of the recorded
conversation erroneously interfered with that credibility
determination, Count I is required to be vacated.
Nonetheless, because the evidence was sufficient, a new trial
is not precluded. Having found sufficient evidence of a
conspiracy to transport and possess a stolen car, we need not
decide whether there was sufficient evidence of a conspiracy
____________________
11. We conclude, however, that the trial court was incorrect
in finding, alternatively, that there was sufficient evidence
that Lanoue conspired with Laraviere to transport a stolen
automobile in interstate commerce. The government adduced no
evidence and did not argue that Lanoue conspired with
Laraviere.
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to commit any other object offense. See Griffin v. United
___ _________________
States, 502 U.S. 46, 56-57 (1991) (guilty verdict on multiple
______
object conspiracy stands in the face of a claim of
insufficiency of the evidence as to one of the objects as
long as the evidence sufficiently supported an alternative
object).
2. Count VI - Interstate Transportation of a
Firearm with an Obliterated Serial Number
Lanoue was arrested with a Colt 38 caliber Police
Special revolver with an obliterated serial number tucked in
his waistband. He argues there was insufficient evidence
that he knew the serial number was obliterated, an essential
element of a violation of 18 U.S.C. 922(k). United States
______________
v. De Leon Ruiz, 47 F.3d 452, 454 (1st Cir. 1995). Viewing
________________
the evidence in the light most favorable to the verdict and
drawing all reasonable inferences and credibility judgments
in its favor, we conclude that there was sufficient evidence
from which a rational jury could conclude that Lanoue knew
the serial number was obliterated. Lanoue testified that he
carried the revolver fairly often to protect himself, and
acknowledged that he had cleaned the gun. When the
prosecutor showed him the gun and asked him if it was the gun
he carried, Lanoue replied, "Is the State Police on top of
the barrel. On top of the barrel . . . That's the one." He
denied that he had obliterated the serial number, but when
asked if he knew it was obliterated, Lanoue answered, "I
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never checked it, it's possible. But I never -- it doesn't
make no difference to me whether they wiped out or not. I
don't know anything about them anyway much." Under these
circumstances, a rational jury could conclude beyond a
reasonable doubt that Lanoue knew the serial number was
obliterated.
D. The Sentence
D. The Sentence
The Presentence Investigation Report ("PSR"), based
on the 1994 Guidelines, calculated Lanoue's adjusted offense
level as 28. The Guidelines provided an offense level of 24
for the firearms offense if it was not committed in
connection with "another felony," U.S.S.G. 2k2.1(a)(2), but
the PSR added 4 levels pursuant to U.S.S.G. 2k2.1(b)(5)
based on "information submitted by the government
indicat[ing] that the defendant was about to engage in the
robbery of a Meehan armored car." With an offense level of
28 and a criminal history category of VI, the imprisonment
range was 140 to 175 months. The PSR grouped the three
counts together pursuant to 3D1.2(b) and applied the
firearms offense level of 28 as the highest level of the
counts in the group.12 See U.S.S.G. 3D1.3(a).
___
____________________
12. The offense level for the stolen car count was 6,
consisting of a base offense level of 4 and an enhancement of
2 for the value of the Oldsmobile. See U.S.S.G. 2B1.1.
___
The offense level for the conspiracy count was that of the
substantive offenses. See 2X1.1.
___
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Lanoue objected to the 4-level enhancement, arguing
that he should not be sentenced on the basis of the robbery-
related crimes of which the jury had acquitted him, and that
the government had not proved those crimes by a preponderance
of the evidence. The court imposed the 4-level enhancement
on the basis that Lanoue used or possessed the firearm in
connection with the crimes of which the jury had acquitted
him -- conspiracy and attempt to commit robbery, and using or
carrying a firearm in connection with a conspiracy or attempt
to commit robbery.13 The court found that those crimes had
been proved by at least a preponderance of the evidence, and
expressed its direct disagreement with the jury's verdicts of
acquittal.14
The court sentenced Lanoue to 175 months, at the
maximum end of the range. Pursuant to U.S.S.G. 5G1.2(d),
____________________
13. The government had alternatively argued that
transportation of the stolen car could constitute the "other
felony." The court found that the "in connection with"
requirement was not satisfied with respect to that offense
because firearms are not inherently associated with that type
of offense and the firearm was not used to effect its
commission.
14. In addition to describing the facts upon which it based
its finding, the court stated:
I am at a loss to explain the Jury's
verdict on those three counts. It seemed
to me the evidence was overwhelming. The
Jury saw it differently . . . I just
don't know what the Jury concluded or why
it reached the conclusion that it did.
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because the statutory maximums were all below the range,15
the court imposed 60 months imprisonment on Count I, 115
months consecutive imprisonment on Count V, and 60 months
concurrent imprisonment on Count VI. Lanoue's sentence was
enhanced by 50 months based on the crimes of which he had
been acquitted, amounting to a 40% increase in his sentence.
Lanoue argues on appeal that we should take this
opportunity to reconsider our holding in United States v.
_________________
Mocciola, 891 F.2d 13 (1st Cir. 1989), permitting sentencing
________
on the basis of acquitted conduct, because it violates the
right to a jury trial and engenders disrespect for the law,
and alternatively that the trial court clearly erred in
finding that he had committed the robbery-related crimes by a
preponderance of the evidence. Lanoue's arguments are now
moot because only the conviction for transportation of a
firearm with an obliterated serial number stands, with a
statutory maximum of five years, well below the Guidelines
range of 100 to 125 months he would receive without the
enhancement.
Although it makes no difference in this case, we
believe that a defendant's Fifth and Sixth Amendment right to
have a jury determine his guilt beyond a reasonable doubt is
____________________
15. The conspiracy statute carries a five-year maximum;
interstate transportation of a stolen motor vehicle carries a
ten-year maximum; and interstate transportation of a firearm
with an obliterated serial number carries a five-year
maximum.
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trampled when he is imprisoned (for any length of time) on
the basis of conduct of which a jury has necessarily
acquitted him. Moreover, we believe that the Guidelines'
apparent requirement that courts sentence for acquitted
conduct utterly lacks the appearance of justice. This panel
urges the court to reconsider en banc the issue of acquitted
conduct when it is next squarely presented.
III. Conclusion
III. Conclusion
For the foregoing reasons, the judgments on Counts
I and V are vacated and those counts are remanded for a new
trial. The conviction on Count VI is affirmed. Because
Count VI is the only remaining conviction, the statutory
maximum of 60 months for violation of 18 U.S.C. 922(k) sets
the upper limit of the sentence. Because Lanoue's Guideline
sentence would be greater than 60 months with or without the
4-level enhancement, we order the sentence on Count VI to be
60 months imprisonment.
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