USCA1 Opinion

February 8, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-2260
UNITED STATES OF AMERICA,

Appellee,
v.

GEORGE H. BENNETT,
Defendant, Appellant.

____________________
No. 94-2300

UNITED STATES OF AMERICA,

Appellee,

v.
LIONEL LUSSIER,

Defendant, Appellant.
____________________

ERRATA SHEET

The opinion of this Court,

issued on February 1, 1996, is amen

as follows:

On page 9, line 7, replace "then had no reason to lie" with

had no reason to lie".

"t

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________
No. 94-2260

UNITED STATES OF AMERICA,

Appellee,

v.
GEORGE H. BENNETT,

Defendant, Appellant.
____________________

No. 94-2300
UNITED STATES OF AMERICA,

Appellee,
v.

LIONEL LUSSIER,
Defendant, Appellant.

____________________

ERRATA SHEET

The opinion of this Court, issued

on February 1, 1996, is amen

as follows:

On

page

8, 3rd

line of

2nd

paragraph, insert

a period

"1986)" and delete "which appears pretty closely in point."

af

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-2260
UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE H. BENNETT,

Defendant, Appellant.
____________________
No. 94-2300
UNITED STATES OF AMERICA,

Appellee,

v.

LIONEL LUSSIER,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________

Before

Selya and Boudin, Circuit Judges,

______________
and Saris,* District Judge.
______________
____________________

Malcolm J. Barach for appellant Bennett.

_________________
William Maselli for appellant Lussier.
_______________
F. Mark Terison,
_______________

Assistant United States

P. McCloskey, United States

_____________

Attorney, was on

the United States.

____________________

Attorney, with whom

consolidated brief

February 1, 1996
____________________

____________________

*Of the District of Massachusetts, sitting by designation.

BOUDIN,

Circuit Judge.
_____________

George

H. Bennett

and Lionel

Lussier

were

marijuana

each

with

charged

intent

to

with

conspiracy

distribute,

21

to

possess

U.S.C.

846;

carrying or using a firearm during and in relation to

trafficking

offense,

possession of a

922(g)(1).

episode in

18

U.S.C.

firearm by

The charges

which

attempt to avenge a

924(c)(1);

a convicted felon,

stemmed from

Bennett, Lussier,

a drug

and unlawful

18 U.S.C.

a bizarre March

and

Gary King,

1994

in

an

previous drug-related attack and robbery

against mutual

friend Ronald Madore,

mistakenly entered the

wrong home and

assaulted the occupants,

ultimately shooting

one of them through the finger.

Madore and King were indicted for various offenses; both

pled guilty,

against

cooperated with the prosecution,

Bennett and Lussier.

and testified

After a five-day jury trial in

August 1994, Bennett and Lussier were convicted on all counts

and sentenced, respectively, to 360 and 378 months in prison.

In

this consolidated

appeal, Bennett and

their convictions and sentences on many

the more

colorable of these claims,

Lussier challenge

grounds.

We address

setting forth pertinent

facts as necessary.

First.
_____

sufficiency of

count.

Both

the

Bennett

and

Lussier

evidence supporting

challenge

the

conviction on

each

Neither denies participating in the assault

dispute issues

of

intent

and their

-2-2-

precise

role

but they

in

the

events.

Our

consider

familiar task

on review of

sufficiency is

to

the record as a whole and to determine, viewing the

evidence in the light most

a rational

favorable to the verdict, whether

jury could find guilt beyond

United States
_____________

v. Luciano-Mosquera,
________________

a reasonable doubt.

63 F.3d 1142,

1149 (1st

Cir. 1995).

conspiracy

conviction

can be

supported

by

either

direct or circumstantial evidence of an illegal agreement--in

this

case to

possess marijuana

with intent

to distribute.

See United States v. Ruiz, 905 F.2d 499, 506 (1st Cir. 1990).
___ _____________
____

At trial, there was testimony that on the day of the mistaken

raid,

Bennett,

friends, drank

attack

in which

Lussier,

and

guns.

The

with

and discussed seeking revenge

mutual friend

marijuana dealer, was beaten

and

King, along

group

Ronald Madore,

two

other

for a previous

a small-time

and robbed of marijuana, money,

continued their

drinking

and their

discussion that evening at Madore's house.

Madore testified that Bennett, Lussier, and King planned

to beat up the

attack,

with

man Madore suspected was behind

the previous

one Wayne Hathorne, take any marijuana he had (along

any money) and give the marijuana to Madore so he could

sell it

and share the proceeds.

the plan was

less definitive;

King's testimony regarding

he stated at

one point

they only intended to beat Hathorne, but elsewhere

-3-3-

that

that both

discussed

stealing

Hathorne's marijuana

and

giving

it to

Madore because "[h]e deals in it."

It is

the

undisputed that shortly

after this

conversation

four men--the appellants, Madore and King--left Madore's

house in Bennett's

car and

drove to a

trailer home,

they mistakenly believed was Hathorne's.

which

While Madore waited

in the car, Bennett, Lussier and King entered the trailer and

terrorized

occupants

David Wing,

Michelle Morin

children, physically

assaulting Wing

was

head.

held

to Wing's

There was

and their

and Morin while

a gun

testimony, described

later in this opinion, that all four men knew of the proposal

to

bring a gun and that

first King and then Lussier carried

the weapon.

Wing testified that during the attack all three men were

shouting "[w]here

is our

about drugs

but did

individuals

or

drugs, tried

house.

not specify

all of

them.

them shouting

whether it was

Wing and

particular

Morin, who

had no

to convince their assailants they had the wrong

These pleas were met with a

an ensuing struggle

finger.

dope?"; Morin heard

for the

threat to kill Wing.

gun Wing was

shot through

In

the

Bennett, Lussier and King immediately fled the scene

without taking anything.

Appellants now insist, as they

the

plan was

merely to

seizing drugs, and that

argued to the jury, that

beat Hathorne

and did

much of the testimony of

-4-4-

not include

Madore and

King was false.

jury

and

But such credibility assessments are for the

nothing

here

justifies

disturbing

the

jury's

rational conclusion that Bennett and Lussier joined in a plan

to, among other things, steal marijuana and give it to Madore

to sell.

As to the section 924(c)(1) charge of carrying

gun during a drug

or using

crime, Lussier concedes the sufficiency

of

the evidence

against him,

while Bennett

nothing showed that he had carried or used

__

to the marijuana

conspiracy.

But

maintains that

a gun in relation

Bennett was also

with aiding and abetting the carry or use offense.

conviction

can be sustained under

knew a firearm would

in

the

18 U.S.C.

be carried or used by

drug trafficking

offense

action to facilitate the

and

charged

Thus, his

2 if Bennett

a co-conspirator

willingly took

carriage or use.

some

Luciano-Mosquera,
________________

63 F.3d at 1150.

At

attack

trial there was testimony

was taken

circumstances

testified

from

where

couch

Bennett could

that he told

that the gun

in

Madore's

have

seen

the other three they

used in the

house

it.

under

Madore

did not need a

gun, but

each said he would

rather take it.

King held the

gun on the ride to Wing's home while sitting in the passenger

seat beside driver Bennett; King said that he did not conceal

the gun in the car, although he conceded he may at some point

-5-5-

have

placed it in his waistband.

It was his impression the

others were aware he had the gun.

From this evidence

that one of

his companions

committed

the

undisputed

since

himself,

raid.

a jury could find

attack,

Bennett

that Bennett knew

was carrying the

and

facilitation

provided

his co-conspirators,

and

his

In Luciano Mosquera, we upheld

________________

is

car

the gun

gun when

they

essentially

to

transport

to execute

the

an abetting conviction

because the defendant provided a house for meeting where guns

were

displayed and

trafficking crime.

discussed,

63 F.3d at

and later

1150.

on the part of the aider and abettor is

used during

drug

In sum, once knowledge

established, it does

not take much to satisfy the facilitation element.

With respect

to adequacy

possession charge, 18 U.S.C.

make only

the

narrow

establish that the gun

the

of evidence on

922(g)(1), Bennett and Lussier

claim that

the

to

evidence

jurisdictional element of that offense.

Madore.

failed

to

had travelled in interstate commerce,

introduced into evidence since it had

and

the felon-in-

The gun was not

been discarded by King

But from direct testimony the jury was entitled

find that it was a .22 caliber "Single-Six" made by Sterm

Ruger and that Sterm Ruger was an out-of-state manufacturer.

Appellants argue that the gun

fashioned by

had

only the

an in-state gunsmith.

most

could have been a replica

This remote possibility

tenuous evidentiary

-6-

support, namely,

-6-

witness or

two said such

significant cost.

The

gun was authentic and

interstate

the gun was

was

commerce.

a gun could
_____

but at

overwhelming probability was that the

had been transported--at some time--in

Certainly the jury's

genuine and had previously

not irrational.

be fabricated

Cf.
___

conclusion that

traveled in commerce

United States v.
_____________

Kirvan, 997 F.2d

______

963, 966-67 (1st Cir. 1993).

Second.
______

Shortly

into

its

deliberations,

requested the testimony of victims Wing and Morin.

judge conferred with counsel and then

use

their recollections,

requested

After

testimony if

further

deliberations the

direct testimony of Wing and Morin.

the judge then

read

had the

back to the jury.

jury

The trial

instructed the jury to

adding that

the jury

the

he would

provide the

still found

it necessary.

jury

for only

asked

the

Over defense objections,

direct testimony of

Wing and

Morin

Immediately after the read-back, the

judge asked jurors as a group whether they would also like to

hear

the cross or other testimony of the two witnesses; none

did.

Defense counsel moved for a mistrial, which was denied.

The appellants

the

concede that

it would have

been within

trial judge's discretion to have read to the jury all of

___

Wing and Morin's testimony; but they say that providing

the

direct

examination

unconstitutional--because

responses of both witnesses

was

the

unread

only

prejudicial--indeed,

cross-examination

were at "striking variance" with

-7-7-

their testimony on direct.

mentioned.

No examples of such variances are

No case law is provided to suggest that the jury

may not select what it wishes to hear.

The

request

trial judge's

to

read

reviewed for

back

decision whether or

not to

testimony requested

by

equally true of the judge's decision whether

be made to hear

clear it

is

that this is

the jury should

additional, related testimony that the

did

discretion is not

should

jury

abuse of discretion, United States v. Akitoye,

______________
_______

723 F.2d 221, 226 (1st Cir. 1991); and we think

made

grant a

not need

unlimited.

exercise great

to

rehear.

Of

And certainly the

care when

the testimony

jury

course, such

trial judge

the defense

counsel wants the

jury to hear

the very witnesses whose full

is the cross-examination

of

direct testimony has just been

reread.

But no inflexible rule exists that the cross must always

be read.

United States v. Wright-Barker, 784 F.2d

______________
_____________

(3d Cir. 1986).

161, 174

In plenty of cases, the direct testimony

of

another witness might be

_______

far more relevant in

testimony of the witness

whose testimony the jury requested.

Each case

must

appellant's

be

burden

unreasonably.

decided on

to

show

Here on appeal,

its

that

assessing the

facts, and

the

trial

it

is

judge

the

acted

with ample leisure to compare

the direct and cross of Wing and Morin, appellate counsel has

still made

no specific showing
________

as to

why it was

unfair in
__

-8-8-

this case
_________

for the

district court to

omit cross-examination

that the jury did not want.

Because this is a criminal case, we have read the direct

and cross-examination of the two witnesses in order to assure

___

ourselves that the district court's

miscarriage of

that the

justice.

We

action did not cause any

have found

cross-examination was vital or

nothing to

suggest

contained more than

the customary measure of minor variations or inconsistencies.

Prior

to requesting

reasonably have

the

read-backs, the

concluded that it

jury could

quite

credited these witnesses'

direct testimony--they had no

reason to lie--and then sought

the read-back to refresh the

jury's own recollection on some

specific points.

There

Appellants

by the trial

is no merit in two other related claims of error.

now say that the jury

was confused or bewildered

judge's offer to have the cross reread; but the

trial judge found otherwise.

We have read the

colloquy and

find

no

reason

to

doubt

the

trial

Appellants also say that the jury

judge's

conclusion.

should have been cautioned

not to give the direct testimony special weight, e.g., United

____ ______

States v. DeSoto, 885

______
______

F.2d 354, 363 (7th Cir.

1989), but no

such request was made at trial.

Third.
_____

times,

defense.

In

closing, the

without objection,

In

rebuttal, the

prosecutor

to the

referred

"selective focus"

prosecutor described

-9-9-

several

of the

a defense

argument as a "diversion" that "doesn't

and

again

Defense

remark.

referred

counsel

to

the

immediately

After the

pass the laugh test"

defense's

objected

"selective

to

focus."

the

"diversion"

summations, defense counsel

requested a

curative instruction that the jury disregard these remarks to

the

extent that

judge found

standard

they "degraded

the comments

instruction

that

legitimate defenses."

unobjectionable and gave

arguments

of

counsel

The

only the

are

not

evidence.

Appellants now

maintain that both

of the

prosecutor's

remarks improperly denigrated defense

defense strategy.

The prosecutor is expected to refrain from

impugning, directly or through

institutional

Boldt,
_____

929

role of

F.2d 35,

focus" remarks were

echo

40 (1st

part of

that

counsel.

Cir.

United States
_____________

1991).

a larger metaphor

In context, the

lawyers highlight

v.

But "selective

used by

jury to "act as a camera"

the evidence.

the truism

implication, the integrity or

defense

prosecutor in urging the

"focused" on

counsel as well as the

the

and keep

remarks merely

helpful facts

and

retreat from unfavorable ones.

The prosecutor

edged closer to trouble

in his rebuttal

remarks by calling a defense argument a "diversion" that does

not

"pass the

laugh test."

But

summations in

litigation

often have

defense

a rough and tumble

summations here

quality; in fact,

twice referred to

one of the

the government's

-10-10-

"desperation" to prove charges "they can't prove."

think

line.

We do not

that the prosecutor's remarks on this case crossed the

See generally United States

v. Ortiz-Arrigoitia, 996

_____________ _____________

F.2d

436, 440-41 (1st Cir.

1366

(1994).

Nor

________________

1993), cert. denied,

_____ ______

was the

refusal

to give

requested instruction reversible error;

114 S. Ct.

the specially

indeed, a jury would

not have made much sense of the requested language.

Fourth.
______

police

interview

McFarlane,

before

At trial Bennett and Lussier sought access to a

and

report

friend of

with

the

government witness,

appellants who

immediately after

the

attack.

report, the

defendants believed, might have

McFarlane's

testimony that

attack

meeting that

he was

shot.

Defendants urged that

Lussier

admitted

holding the

Pete

was

with them

The

interview

some bearing on

in the

post-

gun when

Wing was

the interview report

might be

discoverable

U.S.C.

under Fed. R. Crim.

P. 16, the

3500, or Brady v. Maryland,

_____
________

The trial judge reviewed

Jencks Act, 18
______

373 U.S. 83, 87 (1963).

the report in camera and

_________

concluded

that it was not discoverable.

On

Rule

16

directed

appeal, all

does not

to

three bases

apply

statements

government agent,

since

made

for disclosure

its pertinent

by

United States v.
_____________

defendant

are urged.

language

to

Burns, 15 F.3d
_____

Cir. 1994), and a statement by Lussier or

is

a known

211 (1st

any co-conspirator

to McFarlane immediately after the event is not even arguably

-11-11-

in that category.

of the

government than

rule; but

The

writings that

Burns says.
_____

prescribed in

Compare
_______

the

15 F.3d at

Jencks Act requires inter alia production

__________

are "substantially

pre-trial statements

relate

the bare minimum

that is not what

215-16 n. 2.

of

Appellants suggest that Burns demands more

_____

made by

to the subject of

verbatim"

recitals of

a government witness

the witness' trial

and that

testimony.

18

U.S.C.

3500(e)(2).

We

have reviewed the interview

report

at issue which contains only a few isolated direct quotations

(none

pertinent here)

phrased as

did

and which

a verbatim report.

is neither

structured nor

In our view the

trial court

not commit clear error in refusing to treat the six-page

report

as

substantially

interviewee's own

words.

verbatim

recordation

See United States v.

___ ______________

of

the

Foley, 871
_____

F.2d 235, 238-39 (1st Cir. 1989).

Lussier offers a

that

any

"Lussier

simple

held

essentially

But

the

clever gloss on the Jencks Act, urging

statement

in

gun"--must

verbatim and

an

interview report--e.g.,
____

because of

thus discoverable

its

brevity

under

be

the Act.

this attempt to divide up the document has been rejected

even in

the case of

F.2d at 238-39.

isolated direct quotations,

Foley, 871
_____

We note also that the report (a formal typed

form) was clearly made after the interview and not during it.

United States
_____________

v. Consolidated Packaging, 575 F.2d

_______________________

117, 129

(7th Cir. 1978) (requiring a contemporaneous recordation).

-12-12-

The

Brady claim
_____

because the

the gun,

than

is more

interview report

but attributes

Lussier.

difficult for

does say that

the government

Lussier carried

that information to

The report

might thus

impeachment value, possibly qualifying

Bennett rather

appear to

have some

it as Brady
_____

material

under United States v. Bagley, 473 U.S. 667, 677 (1985).

_____________
______

inference

meeting

is pretty limited in

a confusing one

exclude--and

may

acquiesced in the

even

but the

this case: not

only was the

interview report

invite--the inference

suggestion that he

The

that

does not

Lussier

had been carrying

the

gun.

In

all events, even if we assume that the report should

have

been produced

harmless.

Lussier

interest

under Brady,
_____

At trial,

both Bennett

had held the gun;

in

the failure

so testifying,

to do

so was

and King

testified that

and while Bennett

had a personal

King

did

not.

Further,

if

McFarlane had been "impeached" by the report in question, the

jury

the

would have been told, once again, that Lussier had held

gun.

At

the

post-attack meeting,

present, Bennett had no reason to lie and

where

Lussier was

good reason not to

do so.

Fifth.
_____

The last

noteworthy issue concerns

and abetting instructions.

the aiding

Bennett and Lussier were charged

in both firearms counts--the possession and the use

or carry

counts--both

abetting

as principals

and

on an

aiding and

-13-13-

theory under 18 U.S.C.

and

Lussier say

that

2.

As to both gun offenses, Bennett

the aiding

and abetting

permitted the

jury to convict without

(for example,

even if the jury believed

was unintentionally rendered).

instruction

the required scienter

that the assistance

On the

possession

defendant could

count,

the

be convicted if he

jury was

told

that

"knowingly possessed the

firearm . . . or aided and abetted such possession"; parallel

language was

carried

used on the companion count ("knowingly used or

a firearm or aided and abetted the use or carrying a

firearm").

The appellants complain that the word "knowingly"

was not used

instance;

but

abetting" was

immediately before "aided and

this

is

irrelevant

because

separately defined in the

must be read as a whole.

abetted" in each

"aiding

and

instructions, which

United States v. Fontana, 948 F.2d

_____________
_______

796, 801 (1st Cir. 1991).

In

the

aiding

and

abetting

definition

itself,

the

district court charged in pertinent part that "the Government

must

prove

beyond

associated himself

something

reasonable

with the

that he wished to

actions to make it succeed."

a scienter element

actions"), and

doubt

that

defendant

venture, participated in

bring about, and

it as

sought by his

This language obviously imports

("wished to bring about";

it is the

"sought by his

precise language approved

-14-14-

by this

court in prior cases.

E.g., United States v.

____ _____________

Loder, 23 F.3d
_____

586, 590-91 (1st Cir. 1994).

But

which

our journey is not quite over.

serves reasonably

perfectly cover

well

The Loder language,

_____

in most

abnormal ones.

Here,

situations, may

a potential ambiguity

exists: the term "venture" in Loder is intended

_____

for

the

notion

principal")

for

of

which

crime

the

an

committed

government

defendant

responsible as

aider or

defendant

"punishable as a principal."

not

by

aims

as catch-all

another

to

("the

hold

the

abettor, making

the

18 U.S.C.

See
___

2.

generally 1
_________

Sand, et. al, Modern Federal Jury Instructions

_______ _________________________________

para. 11.01 (1995).

Where only a single crime

is involved,

confusion is unlikely under Loder's language because there is

_____

only one venture.

Here, however, the defendants

count

with a drug possession conspiracy.

"venture,"

aiding

used only as

and abetting,

venture

in

part of

might lead

question was

possession or use-and-carry

also

were charged in the first

think that it could

personally possess

or use

aider or abettor "wished to

the

In theory the term

the general

a jury

definition of

to think

drug conspiracy

offense.

If so, the

convict the defendant

or carry

a gun,

that the

and

not the

jury might

who did not

___

so long

as the

bring about" the drug possession

"and sought by his actions to make [that venture] succeed."

-15-15-

The problem, needless to say, is not that any element of

the offense was omitted from the charge, cf. United States v.
___ _____________

Lopez, No. 94-2277, slip op. at

_____

12 (1st Cir. Dec. 14, 1995),

but

inhered in

that a

possible ambiguity

The defendants

and abetting

made several timely objections

instructions at trial, although

solutions were of questionable use.

charge was

obviously

the instruction.

by

the

jury,

their proposed

But any ambiguity in the

irrelevant in Lussier's case

accepted

to the aiding

(the only evidence,

was

that

he

was

the

principal), and it was harmless in Bennett's case.

Given

the

evidence,

Bennett

convicted as an aider and abettor.

could

only

have

But--as already related--

Madore, who supplied the gun, testified that bringing it

been discussed in advance and

all

said they

Bennett in the

wanted

been

had

that Bennett, Lussier and King

it brought;

King,

who sat

next

to

car, testified that he carried the gun in his

lap

without

concealment

for

Unlike Bennett, who claimed

gun,

King and

at least

part

of

the ride.

to have had no knowledge

Madore were not

on trial.

If

of the

there was an

ambiguity in the instruction, it did not affect the result.

Appellants' remaining claims have been considered but do

not require discussion.

claims

that are

attack

on

the

In a few instances, Bennett has made

not fully

developed, such

intoxication

instruction,

jurisdiction (e.g.,
____

the refusal

-16-16-

of

as his

or

a downward

cursory

beyond

our

departure).

Other claims

seem to

us

made by

hopeless

appellants are properly

on

the

facts

(e.g.,
____

presented but

that

perjured

testimony was knowingly presented) or the law (the claim that

section

922(g)(1)

United States,
______________

is

unconstitutional).

431 U.S.

563

(1977)

Scarborough
___________

(discussed in

v.

United
______

States v. Lopez, 115 S. Ct. 919 (1995)).

______
_____

The case for

appellants here has been well presented by

counsel, and we understand the practical pressure on lawyers-

-especially in criminal cases--to

resolve doubts in favor of

including

with stronger

cases

doubtful claims

along

ones.

with difficult issues now crowd the dockets.

in opinion

writing, the

colorable

claims.

court's time

Cf. McIntosh
____________

is best

But

At least

reserved for

v. Antonio, 71
_______

F.3d 29, 37

(1st Cir. 1995).

Finally,

28(i) to

Bennett moved

earlier under

Fed. R.

incorporate Lussier's brief generally

facts, issues and

benefit" and

brief.

to

The

arguments . .

adopt

. that

particular

motion,

reconsideration, is effectively moot

claims have

been accepted.

But

as to "those

may inure to

arguments

previously

App. P.

in

denied

[his]

Lussier's

subject

to

since none of Lussier's

future counsel

using Rule

28(i)

adopted

should be aware of

with the

United States
_____________

the need to

specific facts

v. Saccoccia, 58
_________

1995).

-17-17-

connect the arguments

pertaining to

F.3d 754,

the movant.

763-64 (1st

Cir.

Affirmed.
________

-18-18-