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. 95-1199
UNITED STATES,
Appellee,
v.
TRENT MANNING,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya, Cyr and Stahl,
Circuit Judges.
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Robert B. Mann with whom Mann & Mitchell was on brief for
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appellant.
Sheldon Whitehouse, United States Attorney, with whom Assistant
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United States Attorneys were on brief for appellee.
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March 21, 1996
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STAHL, Circuit Judge. On May 6, 1994, this court
STAHL, Circuit Judge.
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vacated defendant-appellant Trent Manning's convictions for
possession with intent to distribute cocaine (Count I), use
of a firearm during and in relation to a drug trafficking
crime (Count II), and possession of a firearm by a convicted
felon (Count III), holding that prosecutorial misconduct
during closing arguments warranted a new trial. United
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States v. Manning, 23 F.3d 570, 573-76 (1st Cir. 1994).
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After his second jury trial in November of 1994, Manning
again was convicted on all three counts. Manning challenges
this latest round of convictions, claiming that the district
court erred in: (1) denying his motion for acquittal on
Count II, (2) admitting evidence of uncharged misconduct, (3)
denying his request for an expert, (4) precluding evidence
and argument regarding his potential sentence, (5) denying
his motion to suppress evidence found during the October 7,
1991 search, (6) instructing the jury, and (7) responding to
the jury's inquiry. Finding no merit in Manning's first six
claims, we affirm his convictions on Counts I and III.
Finding that the district court erred in responding to the
jury's inquiry, however, we vacate Manning's conviction on
Count II and remand Count II for a new trial.
I.
I.
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BACKGROUND
BACKGROUND
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Viewing the evidence in the light most favorable to
the verdict, United States v. Wihbey, No. 95-1291, slip op.
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at 2 (1st Cir. Feb. 6, 1996), we conclude that a reasonable
jury could have found the following facts.
Late in the afternoon on October 7, 1991, several
members of the Providence Police Department executed a search
warrant at Manning's mother's house, located at 151 Doyle
Avenue in Providence, Rhode Island. Just three or four
minutes before the raid, Detective David Lussier, who had
known Manning for some time, saw Manning and a passenger
drive by his surveillance position (in a parking lot about
fifty yards from 151 Doyle Avenue with a direct view into its
rear yard) in Manning's red Jeep Cherokee. Fearing that eye
contact with Manning had compromised his surveillance,
Lussier ordered that the warrant be executed.
Thereupon, Detective Joseph Lennon approached the
rear of 151 Doyle Avenue and saw Manning, whom he knew and
with whom he had conversed on other occasions, standing
outside the Cherokee and in front of the garage, holding a
brown briefcase in his left hand. Lennon identified himself
as a police officer and, with gun drawn, ordered Manning to
stop. Manning, ignoring this directive, walked slowly into
the garage with briefcase in hand, closing and locking the
door behind him. Manning's rottweiler, loose in the
driveway, delayed Lennon's pursuit of Manning for three to
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five minutes. Once inside the garage, Lennon found and
seized the briefcase and its contents, inter alia: two bags
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of cocaine weighing 124.64 grams, various drug paraphernalia,
a loaded 9 millimeter handgun, and six copper pipe bombs.
Lennon did not, however, find Manning in his subsequent
search of the house.
Meanwhile, Lussier, having ordered the raid, drove
to the front of 151 Doyle Avenue, entered the front door, and
proceeded to the basement, where he found a broken window
through which Manning had likely escaped. One week later,
Manning turned himself in to the police.
II.
II.
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DISCUSSION
DISCUSSION
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A. Motion for Acquittal
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Manning argues that there was insufficient evidence
to support his conviction for using a destructive device1
during and in relation to a drug trafficking crime, and so
the district court erred in denying his motion for acquittal
on Count II. We review the district court's disposition of a
motion for acquittal de novo, viewing the evidence, and all
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reasonable inferences that may be drawn therefrom, in the
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1. 18 U.S.C. 921(a)(3) defines "firearm" to mean "any
destructive device." Section 921(a)(4) defines "destructive
device" to mean "any explosive, incendiary, or poison gas . .
. bomb."
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4
light most favorable to the government. United States v.
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Loder, 23 F.3d 586, 589-90 (1st Cir. 1994).
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Approximately one month after oral arguments in
this case, the Supreme Court decided Bailey v. United States,
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116 S. Ct. 501 (1995), and concluded that "use" of a firearm
in 18 U.S.C. 924(c)(1) means "active employment of the
firearm" which "includes brandishing, displaying, bartering,
striking with, and most obviously, firing or attempting to
fire, a firearm." Id. at 505, 508. Our careful review of
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the record reveals that the government's evidence was
insufficient to show "use" under the Bailey standard. The
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government did not present any evidence that Manning had
brandished, displayed, bartered, struck someone with,
fired/detonated or attempted to fire/detonate either the 9
millimeter handgun or the six pipe bombs. The evidence
presented at trial was simply that Manning had carried the
briefcase containing the gun, pipe bombs, drugs, and drug
paraphernalia into the garage of 151 Doyle Avenue and nothing
more.
The reach of 18 U.S.C. 924(c)(1), however,
extends beyond the use of a firearm. Section 924(c)(1)
applies to any person who either "uses or carries a firearm."
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18 U.S.C. 924(c)(1) (emphasis added). At issue, therefore,
is whether the government succeeded in presenting evidence
sufficient to show that Manning was guilty of carrying a
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firearm during and in relation to any drug trafficking crime.
Conviction under 924(c)(1) requires proof beyond a
reasonable doubt that Manning: (1) committed the drug
trafficking crime of possession with intent to distribute as
charged in the indictment, (2) knowingly carried a firearm,
and (3) did so during and in relation to the drug trafficking
crime. See United States v. Wilkinson, 926 F.2d 22, 25-26
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(1st Cir.), cert. denied, 501 U.S. 1211 (1991), and overruled
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on other grounds by Bailey, 116 S. Ct. at 509. Because
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Manning has not challenged the sufficiency of the evidence of
the first element, we restrict our analysis to the last two
elements and consider each in turn.
By narrowing the interpretation of "use" to
instances of active employment, the Bailey Court recognized
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that the "carry" prong would take on a new significance.
Accordingly, the Court remanded Bailey and its companion
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case, Robinson v. United States, No. 94-7492, to the District
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of Columbia Circuit to consider liability for Bailey and
Robinson under the "carry" prong of 924(c)(1). Bailey, 116
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S. Ct. at 509. In Bailey and Robinson, the firearms were
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found in the trunk of a car and in a locked trunk in a
bedroom closet, respectively. Id. at 503-04. Determining
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whether firearms found in these locations were carried will
require the District of Columbia Circuit to test the limits
of the proper understanding of "carry" in 924(c)(1). We
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need not determine the precise contours of the "carry" prong
here, however, as Manning's actions meet any reasonable
construction of the word. See Smith v. United States, 113 S.
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Ct. 2050, 2054 (1993) (noting that words not defined by
statute should be given their ordinary or common meaning).
The word "carry" is variously defined as "to move
while supporting (as . . . in one's hands or arms)," "to move
an appreciable distance without dragging," and "to bring
along to another place." Webster's Third New International
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Dictionary 343 (1986). Manning's alleged actions readily
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meet all of these definitions. The government presented the
testimony of Detective Lennon that he saw Manning standing
outside his Cherokee and in front of the garage of 151 Doyle
Avenue, holding the briefcase; that he watched Manning, while
holding the briefcase in his left hand, walk into the garage;
and that minutes later upon discovering the briefcase in the
garage, he opened it and found, inter alia, a loaded 9
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millimeter handgun and six pipe bombs. A reasonable juror
could easily conclude from this evidence that Manning had
carried the handgun and pipe bombs. In walking from the
Cherokee to the garage while holding the briefcase in his
left hand, Manning certainly was "moving" the briefcase
"while supporting" it in his hand. And if Manning was
carrying the briefcase, he necessarily was carrying the
contents thereof, namely, the handgun and pipe bombs.
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The government also presented ample evidence from
which a reasonable juror could conclude that Manning carried
the gun and bombs "during" and "in relation to" the crime of
possession with intent to distribute. Evidence that Manning
carried the gun and pipe bombs contemporaneously with the two
bags of cocaine and the drug paraphernalia readily satisfies
the "during" requirement. See United States v. Luciano-
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Mosquera, 63 F.3d 1142, 1151 (1st Cir. 1995) (holding that
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gun "carried at a time when the offense was in progress"
constituted "during" for purposes of 924(c)(1)). Evidence
that Manning carried the gun and bombs in the same briefcase
as the drugs readily satisfies the "in relation to"
requirement. Because the government presented evidence that
could establish each of these elements beyond a reasonable
doubt, we affirm the district court's denial of Manning's
motion for acquittal on Count II.
B. Admissibility of Evidence of Uncharged Misconduct
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Manning argues that the district court erred by
allowing the prosecutor to cross-examine him about his prior
drug dealing and to introduce the items seized from the
basement of 151 Doyle Avenue. Manning's attorney objected to
the introduction of this evidence as impermissible "uncharged
misconduct" evidence under Fed. R. Evid. 404(b) and, in the
alternative, unduly prejudicial under Fed. R. Evid. 403.
After reciting the standard of review, we consider Manning's
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testimony on cross-examination and the items seized from the
basement, in turn.
Because the admission of Rule 404(b) evidence is
committed to the sound discretion of the trial judge, we will
reverse on appeal only for abuse of discretion. United
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States v. Garcia, 983 F.2d 1160, 1172 (1st Cir. 1993). We
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will reverse a district court's Rule 403 balancing "only in
'exceptional circumstances.'" Id. at 1173 (quoting United
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States v. Garcia-Rosa, 876 F.2d 209, 221 (1st Cir. 1989),
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cert. denied, 493 U.S. 1030 (1990)).
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On cross-examination, the prosecutor successfully
elicited testimony from Manning about his drug dealing
efforts prior to October 7, 1991. In particular, Manning
testified that he had previously sold cocaine; that he would
package the cocaine in a specific type of plastic bag; that
he weighed drugs on two particular scales; and that, as
denoted by his handwriting in his drug ledger, he would
distribute 100 bags of cocaine every two days to a particular
location. The prosecutor also questioned Manning about his
use of a pager and the source of his drug supply. All of
this was done over the objection of Manning's attorney.
Rule 404(b) provides that although evidence of
other crimes, wrongs, and acts is not admissible to prove
criminal propensity, it may be admissible for other purposes
that do not involve character, such as proof of intent,
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9
preparation, knowledge or absence of mistake. Garcia, 983
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F.2d at 1172. Moreover, when charges of drug trafficking are
involved, this court has often upheld the admission of
evidence of prior narcotics involvement to prove knowledge
and intent. See United States v. Hadfield, 918 F.2d 987, 994
___ _____________ ________
(1st Cir. 1990) (collecting cases), cert. denied, 500 U.S.
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936 (1991). Manning was charged in Count II with knowingly
possessing the two bags of cocaine in the briefcase with the
intent to distribute them. Manning's statements regarding
his prior drug dealing are highly probative of the knowledge
and intent elements of that offense. The evidence that
Manning had previously sold cocaine makes it more likely both
that he was aware of the contents of the plastic bags in the
briefcase and that he intended to distribute the two bags of
cocaine.
Having determined that Manning's statements were
probative, we must consider whether their probative value was
substantially outweighed by their prejudicial effect. Fed.
R. Evid. 403. The district court minimized any prejudicial
impact of the prior drug dealing evidence by instructing the
jury, contemporaneously and again in its final instructions,
about the proper use of prior bad act evidence. See United
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States v. Powell, 50 F.3d 94, 101 (1st Cir. 1995) (finding
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that limiting instruction insulated against prejudicial
impact); see also, Richardson v. Marsh, 481 U.S. 200, 206
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10
(1987) (holding that reviewing court typically presumes jury
followed instructions). Given the district court's limiting
instructions and its broad discretionary power to balance
probative value against prejudicial effects, we cannot say
that the district court abused its discretion in admitting
the evidence of Manning's prior drug dealing.
Manning also challenges the district court's
admission of items such as scales, bags, glassine packets
stamped "Super Power" and "Hot Pursuit," rubber bands, and
straws, seized from the basement and garage of 151 Doyle
Avenue. Manning's assertion, however, that the items seized
are governed by Rule 404(b) is wide of the mark. Rule
404(b), by its very terms, excludes only extrinsic evidence--
"evidence of other crimes, wrongs, or acts"--whose probative
value exclusively depends upon a forbidden inference of
criminal propensity. Hadfield, 918 F.2d at 994. Evidence
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intrinsic to the crime for which the defendant is on trial,
accordingly, is not governed by Rule 404(b). United States
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v. Tutiven, 40 F.3d 1, 5 (1st Cir. 1994) ("The cases are
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legion in which similar intrinsic circumstantial evidence has
been admitted without occasioning either challenge or
analysis under Rule 404(b)."), cert. denied, 115 S. Ct. 1391
_____ ______
(1995).
The items seized from 151 Doyle Avenue most
certainly qualify as intrinsic to the crime of possession
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with intent to distribute with which Manning was charged.
During the search on October 7, 1991, each of the items were
found in the basement of 151 Doyle Avenue, save one scale
discovered in the garage. Should a juror have chosen to
believe that Manning occupied the basement bedroom of 151
Doyle Avenue,2 the existence of the drug paraphernalia there
is directly probative of both Manning's knowledge that the
bags in the briefcase contained cocaine and his intention to
distribute that cocaine. See United States v. Nason, 9 F.3d
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155, 162 (1st Cir. 1993) (upholding admission of scales,
bags, and baggies seized from motel room registered to
defendant's girlfriend at time of defendant's arrest on the
marijuana charges for which he was on trial), cert. denied,
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114 S. Ct. 1331 (1994). The district court did not abuse its
discretion in admitting the drug-paraphernalia evidence.
C. Request for an Expert
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Manning also complains that the district court
erred in denying his request for appointment of an expert.
The Criminal Justice Act, 18 U.S.C. 3006A(e)(1), provides
that "a person who is financially unable to obtain . . .
expert . . . services necessary for an adequate defense" may
obtain them after demonstrating in an ex parte hearing that
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2. The government presented evidence from which the jurors
could draw such a conclusion. For instance, the government
introduced pager and veterinary bills addressed to Trent
Manning, 151 Doyle Avenue and police testimony that these
bills were found in the basement bedroom area.
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such services are "necessary." A district court's denial of
a request for such services is reviewed only for an abuse of
discretion. United States v. Mateos-Sanchez, 864 F.2d 232,
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240 (1st Cir. 1988); United States v. Fosher, 590 F.2d 381,
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384 (1st Cir. 1979).
At the hearing on this issue, Manning's attorney
requested the expert services of a retired Providence police
officer who purportedly would have testified about the
inadequacies in the Providence Police Department's
investigation of Manning's case. In particular, the expert
would have highlighted the police's failure to test the
broken glass of the basement window for fingerprints and to
trace the origins of the pipe bomb components.
Generally, expert services have been found
necessary when the proffered expert testimony was pivotal to
the indigent defendant's defense. See Mateos-Sanchez, 864
___ ______________
F.2d at 239-40. For instance, courts have appointed a
fingerprint expert when a fingerprint, alleged to be the
defendant's, was the primary means of connecting the
defendant to the crime, see United States v. Durant, 545 F.2d
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823, 827 (2d Cir. 1976), and a psychiatrist when the
defendant's sanity at the time of the offense was at issue,
see United States v. Williams, 998 F.2d 258, 264 (5th Cir.
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1993), cert. denied, 114 S. Ct. 940 (1994). Manning's
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proffered expert testimony on the adequacy of the police
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13
investigation, however, was not critical or necessary to his
defense.
Manning was charged with using or carrying
destructive devices during and in relation to a drug
trafficking crime. Whether Manning had manufactured the
bombs was not at issue. The proffered testimony that the
police failed to trace the bomb components, therefore, cannot
be said to be central to Manning's defense of Count II.
Given the eyewitness testimony of Manning carrying the
briefcase and all the physical evidence found in the basement
and garage, including a scale with Manning's fingerprint on
it, the expert testimony on the police's failure to
fingerprint the broken glass from the basement window is
likewise peripheral to Manning's defense of Count II.3
Moreover, as the district court noted, Manning's
proffered expert testimony about whether or not a particular
police act or omission was good police practice had the
potential of confusing the jury and diverting its attention
from its task of assessing the adequacy of the prosecution's
evidence on the issue of guilt. Upon these facts, we cannot
say that the district court's denial of Manning's request for
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3. We also note that Manning's attorney was able to place
these alleged investigative shortcomings before the jury on
cross-examination of the officers.
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appointment of the proffered expert was an abuse of its
discretion.4
D. Jury Nullification
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At two points during trial, Manning's attorney
attempted to alert the jury to the potential term of
imprisonment Manning would face if convicted on Count II.5
During Manning's direct examination, Manning's attorney
requested the court's permission to ask Manning whether, in
October of 1991, he was aware of the substantial prison term
facing someone found using or carrying a destructive device
during and in relation to a drug trafficking crime. The
district court denied the request as irrelevant, noting that
sentencing matters are entrusted to the judge, not the jury.
At the close of all the evidence, Manning's attorney again
approached the court at sidebar, this time seeking permission
to appeal, in his closing argument, to the jury's power of
nullification by informing the jury of the prison term
Manning would face if convicted of Count II. The district
court also denied this request, invoking the rationale it had
used earlier.
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4. This is not to say, however, that expert opinion on the
adequacy of a police investigation can never be necessary to
an indigent defendant's defense nor do we so rule.
5. Under 924(c)(1), using or carrying a destructive device
carries a mandatory thirty-year prison term.
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Because we reverse Manning's conviction on Count II
for jury coercion, see part II.G. infra, we need not reach
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this issue. We nonetheless offer the following cursory
analysis of the second argument as guidance. We have
consistently held that a district court may not instruct the
jury as to its power to nullify. See United States v.
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Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993), cert. denied,
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114 S. Ct. 2714 (1994); United States v. DesMarais, 938 F.2d
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347, 350 (1st Cir. 1991); Garcia-Rosa, 876 F.2d at 226;
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United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969),
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cert. denied, 397 U.S. 991 (1970). An attorney's attempt to
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achieve the same end indirectly, by arguing the severity of
the punishment to the jury, is equally impermissible. See
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United States v. Calhoun, 49 F.3d 231, 236 n.6 (6th Cir.
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1995) (holding that a defendant did not have the right to
inform the jury of possible punishment or of its power to
nullify a law or sentence); cf. United States v. Coast of
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Maine Lobster Co., 538 F.2d 899, 903-04 (1st Cir. 1976)
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(holding that prosecutor's televised comment that white
collar criminal sentences are too small, communicated to
jurors of ongoing white collar criminal trial, created
reversible error).
E. Motion to Suppress
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Before his first trial, Manning moved to suppress
the evidence found during the October 7, 1991 search of 151
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Doyle Avenue. After a hearing, the district court denied the
motion. Manning later objected to the evidence as it was
offered at trial and then raised the objection on appeal. We
did not address the suppression issue, however, having
ordered a retrial on other grounds. On appeal from his
second trial, Manning again asks us to consider the legality
of the search. This time, Manning had neither renewed his
suppression motion nor registered his objection to the
admission of the evidence below. While Manning maintains
that this was unnecessary because the decisions of the first
trial judge are the law of the case, the government contends
that his suppression arguments are waived. We need not enter
this thicket, however, because assuming arguendo that
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Manning's arguments are preserved, we find that they still
fail.
Manning attacks the district court's denial of his
suppression motion on two grounds. First, Manning contends
that the affidavit supporting the search warrant does not
establish probable cause, citing the staleness of the
information regarding the confidential informant's controlled
buy, the dearth of information about that informant's
credibility, and a general lack of detail. Second, Manning
contests the district court's refusal to conduct an in camera
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proceeding to test the reliability of the confidential
informant ("CI") regarding the controlled buy. Manning
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argues that an in camera review was necessary to his mounting
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a Franks challenge6 to the accuracy of the officer's
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statements in the affidavit supporting the search warrant.
After summarizing the affidavit, we consider Manning's second
claim first.
On October 7, 1991, to support his application for
a warrant to search 151 Doyle Avenue, Detective Lussier
attested to the following facts. "During the past few
weeks," while Lussier was investigating marijuana trafficking
at 151 Doyle Avenue, Manning had used keys to enter 151 Doyle
Avenue and appeared to be living there. While Manning was
home, several people had come to the rear door of the house
and stayed for only a short time. Lussier took numerous
phone complaints about narcotics trafficking at 151 Doyle
Avenue. A CI, who had bought marijuana from Manning
previously, made a controlled buy from Manning at 151 Doyle
Avenue. Before the buy, Lussier searched the CI for money
and contraband, gave the CI money, and witnessed the CI enter
the rear of the house.
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6. Under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), a
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defendant may overcome the presumption of validity
surrounding affidavits supporting search warrants and obtain
an evidentiary hearing, if he "makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of
probable cause."
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We recognize that when an affidavit relies
primarily on information provided by a CI, a defendant will
lack the information needed to make a Franks showing. See
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United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993). In
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such cases, where the defendant challenges the accuracy of
the affidavit but has failed to make the "substantial
preliminary showing" required by Franks, the court may
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conduct an in camera interview of the officer-affiant, and,
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if necessary, of the informant. See United States v.
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Southard, 700 F.2d 1, 10-11 (1st Cir.), cert. denied, 464
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U.S. 823 (1983). A district court is not required to do so,
however; the decision whether an in camera proceeding is
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needed to test the officer-affiant's7 credibility rests
entirely with the district court. See United States v.
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Jackson, 918 F.2d 236, 241 (1st Cir. 1990). We review a
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district court's denial of a defendant's request for an in
__
camera proceeding for abuse of discretion. See United States
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v. Valerio, 48 F.3d 58, 62-63 (1st Cir. 1995); Higgins, 995
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F.2d at 3.
Manning argues that he presented evidence at the
suppression hearing sufficient to contradict Lussier's
statements in the affidavit and thereby require the district
court to question his credibility. Specifically, Manning's
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7. Franks only allows impeachment "of the affiant, not of
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any nongovernmental informant." Franks, 438 U.S. at 171.
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mother testified that she was home all day on October 7, 1991
and that no sale of drugs could have taken place in her home
without her knowledge. Manning's attorney told the district
court that, although the affidavit does not specify the date
of the controlled buy, he recalled that a police officer, not
Lussier, had testified at the preliminary examination that
the buy took place on October 7, 1991. Manning concludes
from these two facts that the controlled buy could not have
taken place on October 7, 1991, and therefore, that Lussier
must have lied.
As the district court recognized, however, two
problems inhere in this reasoning. First, the affidavit does
not provide that the controlled buy occurred on October 7,
1991.8 Second, even if it did, Mrs. Manning's testimony
does not "preclude at all the possibility that Officer . . .
Lussier is telling the truth." Mrs. Manning admitted that
Manning was at 151 Doyle Avenue for at least some period of
time on October 7, 1991, and she did not claim that he was
never out of her sight. Given the tenuous basis for
Manning's challenge to Lussier's veracity, the district
court's denial of Manning's request for an in camera review
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was well within its discretion.
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8. We find no clear error in the district court's not
accepting Manning's attorney's recollection that an unnamed
police officer, not present during the controlled buy,
testified at the preliminary examination that the buy
occurred on October 7, 1991.
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Having so decided, we quickly dispose of Manning's
challenge to the validity of the search warrant for lack of
probable cause. Assuming arguendo that Manning is correct
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about the warrant's invalidity, we nonetheless agree with the
district court's conclusion that the "good faith" exception
to the exclusionary rule applies here. United States v.
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Leon, 468 U.S. 897, 913 (1984). In Leon, the Supreme Court
____ ____
held that, with limited exception, the exclusionary rule
should not apply when police officers reasonably rely on a
warrant that subsequently is determined to be invalid. 468
U.S. at 922. Upon de novo review, see United States v.
__ ____ ___ _____________
Zapata, 18 F.3d 971, 975 (1st Cir. 1994) (reviewing district
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court's "ultimate constitutional conclusions" in a
suppression order de novo), we find that Lussier's affidavit
__ ____
had ample indicia of probable cause "'to render official
belief in its existence'" reasonable. Leon, 468 U.S. at 923
____
(quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)
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(Powell, J., concurring in part)). Accordingly, we affirm
the district court's denial of the motion to suppress the
items seized from 151 Doyle Avenue.
F. Jury Instructions
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Manning raises two challenges to the jury
instruction defining the offense of using or carrying a
firearm during and in relation to a drug trafficking crime.
First, he argues that the district court failed to instruct
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the jury that the destructive devices must have actually been
used. Second, he claims that the court failed to instruct
that the destructive devices must have facilitated the
charged crime of possession with intent to distribute, and
not some other past or future drug trafficking crime.
Our reversal of Manning's conviction on Count II
for jury coercion, see part II.G. infra, however, renders
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consideration of the legality of the court's 924(c)(1)
instruction unnecessary.9
G. Responses to Jury's Inquiry
_______________________________
Manning contests the district court's responses to
a specific jury query on two grounds: (1) that the district
court's response was tantamount to a directive that the jury
must reach a verdict on Count II, and (2) that the district
court did not cure this harm by polling the jurors -- after
they had reached a verdict but before the verdict was taken -
- on whether they had felt compelled to reach a verdict.
Mindful of the district court's broad discretion in "the
____________________
9. Although its 924(c)(1) instruction initially made clear
that the predicate drug trafficking crime was possession of
cocaine with intent to distribute it as charged in Count I,
in later instructions, the district court stated that "there
must be proof that the firearm was connected to or played a
role in the commission of a drug trafficking crime."
_
(Emphasis added). In future instructions, we caution the
district court to endeavor to avoid generic references to "a
drug trafficking crime" when referring to the particular
predicate offense.
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giving, or withholding, of a supplemental instruction, or the
contents of it if given," United States v. Parent, 954 F.2d
_____________ ______
23, 25 (1st Cir. 1992), we nonetheless find that the district
court transgressed the bounds of its discretion under the
unusual set of circumstances that unfolded after the jury
retired to deliberate. See United States v. Akitoye, 923
___ _____________ _______
F.2d 221, 227 (1st Cir. 1991) (reviewing for abuse of
discretion district court's denial of jury's request to have
testimony read back). We outline the relevant history.
The jury began its deliberations in earnest10 on
the morning of November 22, 1994. After a few hours, the
jury sent the court a note, asking "Which scale was found in
the bedroom and which scale had the fingerprint?" After
consulting the parties, the district court responded, "It
would not be proper for me to tell you what the evidence
establishes or does not establish. That's a matter that only
you can determine." Later, the jury sent another
communication to the court, this time stating, "We do not
have an [sic] unanimous decision on Count Number Two. Must
we continue to discuss until we have? It is apparent that
we'll not change our minds." At a chamber conference with
both counsel, the court proposed the following response:
____________________
10. The court submitted the case to the jury the previous
evening. After deliberating for approximately fifteen
minutes, however, the jury chose to go home and reconvene the
next morning.
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"Would reading any portion of the testimony to you assist you
in reaching a decision? If so, please tell me what portions
of testimony of which witness you would like." Perceiving
deadlock on Count II, Manning's attorney objected to the
court's response and moved for a mistrial. In the
alternative, he proposed that the response advise the jury
that it was not obliged to reach a verdict. The district
court denied the motion, rejected the suggestion, and sent
its suggested response.
The jury then informed the court, "We would like to
hear testimony from Officer Lennon and Agent Lennon." Over
Manning's continued objection, the court replied, "Is their
[sic] any particular portion or portions of the testimony of
Officer Lennon or Agent Lennon that would be helpful to you?"
After receiving no reply, the district court had the clerk
ask the jurors whether they wished to continue deliberating
or go home and return the next day. Thereafter, the court
received a note stating that a verdict had been reached.
Apparently concerned about the effect of its second response,
the district court, before taking the verdict, queried the
jury collectively in open court as follows:
I just wanted to make sure before I even
ask about the verdict whether there is
anybody here who is under the impression
that you were required to reach an [sic]
unanimous decision. If you didn't, you'd
be kept here until you did. I wanted to
make sure nobody is under that
impression, had the feeling you had to
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reach an agreement because you felt that
you would be kept here until you did or
because you felt that you had to all
agree in order to be released from jury
service. Is there any of you that had
that feeling?
No juror responded to the inquiry. The jury then returned
its verdict of guilty on all counts.
This court has recognized that when a jury
indicates that it is deadlocked, a supplementary charge
instructing it to return and attempt to reach a verdict may
prejudice a defendant. See United States v. Angiulo, 485
___ ______________ _______
F.2d 37, 39 (1st Cir. 1973). For instance, "such a charge
may cause a jury to agree when they might otherwise never
have come to agreement, thereby losing for the defendant
whatever safeguard he might have had in a hung jury, a
declaration of mistrial, and either a new trial or a
subsequent decision by the prosecutor not to retry the case."
Id. Accordingly, we have instructed district courts to
___
include three elements in any such supplementary charge to
ameliorate its prejudicial effect. Id. A district court
___
should instruct jurors in substance that (1) members of both
the majority and the minority should reexamine their
positions, (2) a jury has the right to fail to agree, and (3)
the burden of proving guilt beyond a reasonable doubt remains
with the government. Id.
___
Having indicated that it was deadlocked on Count
II, the jury in the present case proceeded to inquire whether
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it was obliged to reach a verdict on Count II. Rather than
answering this pointed question "yes" or "no," the district
court responded with a question: "Would reading any portion
of the testimony to you assist you in reaching a decision?"
This response not only failed to discourage the notion that
the jury was bound to continue to deliberate indefinitely, it
suggested the opposite, i.e., that a jury is required to do
____
so.11 Having asked whether continued deliberation on Count
II was necessary, and being offered a review of testimony in
response, a rational lay jury could reasonably have inferred
that the court wanted it to reach a verdict, regardless of
whether it could do so in good conscience.
Having sent the jurors an improper signal, the
district court did not dispel this misimpression by
collectively asking the jury in open court, after it had
reached its verdict, whether that verdict had been coerced.
At that point, the dynamics had fundamentally changed.
Jurors who may have been hold-outs earlier had now voted to
convict. Asking such a juror to admit before his fellow
jurors that he had voted against his will was asking too
much. Moreover, the district court never informed the jurors
____________________
11. Providing a modified Allen charge at this juncture, on
_____
the other hand, would have informed the jurors that they need
not surrender an honest conviction for the mere purpose of
returning a verdict and at the same time encouraged them to
try to reach a verdict, fully aware that the onus of
reexamination is not on the minority alone and that the
burden of proof remains with the government.
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that if any of them did admit to being coerced, the court
would take their verdicts on Counts I and III, discharge the
jury, and retry Count II before another jury. The unhappy
prospect of being sent back to the jury room for further
deliberations may also have prevented jurors from admitting
coercion. Because we cannot say that the verdict on Count II
was not the product of coercion, we vacate the conviction on
Count II and remand for a new trial.
III.
III.
____
CONCLUSION
CONCLUSION
__________
We affirm Manning's convictions and sentences on
______
Counts I and III, vacate his conviction and sentence on Count
______
II, and remand Count II for a new trial.
______
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