UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 90-1882
UNITED STATES,
Appellee,
v.
SCOTT N. ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Gordon R. Blakeney, Jr. for defendant, appellant.
Peter E. Papps, First Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief for appellee.
December 8, 1994
BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.
Scott N. Rogers was convicted under 18 U.S.C. 922(g)(1) as
a felon in possession of a firearm. He appeals his
conviction on various grounds. We affirm.
I. FACTS
I. FACTS
The evidence, taken in the light most favorable to
the government, see United States v. Ford, 22 F.3d 374, 382
(1st Cir.), cert. denied, 115 S. Ct. 257 (1994), tended to
show the following.
On April 4, 1989, four police officers arrived at
an apartment on 5 Wheelock Street in Manchester, New
Hampshire, where Rogers, who had escaped from prison, was
believed to be hiding. Two of the officers entered the
bedroom in the northeast corner of the apartment, where they
found Rogers in the closet and took him into custody. A pat-
down revealed a .32 caliber bullet in his right front pants
pocket. Rogers announced that the officers were lucky they
found him before he got to his gun, or he would have blown
his brains out.
In the meantime, the third officer went to the
bedroom in the northwest corner of the apartment, where he
found a .32 caliber Smith and Wesson handgun in plain view on
top of the dresser. The gun was fully loaded. The officer
unloaded the gun and seized it as evidence. A fourth officer
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went into the center bedroom, where he found and briefly
detained one Michael Glennon, a friend of the defendant.
Rogers was taken to the police station, where he
was given Miranda warnings. Rogers indicated that he
understood his rights and signed a waiver form. He stated
that the gun seized at the apartment was a "throw-away"
weapon that he had purchased for fifty dollars. He again
stated that he had intended to use the gun to commit suicide
if the police got close to him.
Rogers was questioned about several burglaries in
Manchester. He admitted that he was involved in two
burglaries at the Louisa's pizzeria, as well as a third at
the Sub Hut.
A federal grand jury returned a one-count
indictment charging Rogers as a convicted felon in possession
of a firearm in violation of 18 U.S.C. 922(g). At trial,
Rogers testified that the gun belonged to Michael Glennon,
and denied making any statement about shooting himself, or
being the owner of the gun. In fact, none of the
fingerprints found on the gun belonged to Rogers. The bullet
found in his pocket allegedly came from a box of fifty
bullets that Glennon had bought. Glennon, Rogers testified,
liked to flick bullets at him in horseplay. On the night he
was arrested, Rogers allegedly stepped on a bullet as he
walked barefoot in the living room of the apartment. He
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picked up the bullet and slipped it in his pocket, intending
to place it in a jewelry box elsewhere in the apartment.
The other witness called by the defense was Joseph
Perkins, the defendant's brother, who testified that Glennon
pulled the gun out of his pocket to show it to him during one
of his visits to the apartment.
Rogers was convicted on May 2, 1990. Because he
had committed at least five previous felonies, the district
court imposed the statutory mandatory minimum sentence of
fifteen years. See 18 U.S.C. 924(e).
II. DISCUSSION
II. DISCUSSION
A. Constructive Possession
A. Constructive Possession
Rogers argues that the "possession" of a firearm
under 18 U.S.C. 922(g) must be actual, not constructive.1
Constructive possession, however, is possession. See United
States v. Zavala Maldonado, 23 F.3d 4, 6 (1st Cir.), cert.
denied, 115 S. Ct. 451 (1994) ("Under settled law,
'possession' includes not merely the state of . . . hands-on
physical possession but also 'constructive' possession"). In
United States v. Wight, 968 F.2d 1393, 1397-98 (1st Cir.
1992), we "ma[de] explicit the obvious" and found that "the
element of 'knowing possession' under section 922(g)(1) may
1. Section 922(g) provides in pertinent part: "It shall be
unlawful for any person . . . who has been convicted in any
court of [] a crime punishable by imprisonment for a term
exceeding one year to . . . possess . . . any firearm."
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be established by proving that the defendant was in
constructive possession of a firearm." Wight adopted the
prevailing (and only) rule in the other circuits. Id. at
1398 n.6 (collecting cases). See also United States v.
Lamare, 711 F.2d 3, 5 (1st Cir. 1983) (under former
922(h)(1), "receipt" of the firearm may be shown by proving
possession; possession can be actual or constructive).
Rogers argues that 922(g) is unconstitutional as
applied to him because the government "neither alleged nor
attempted to prove any fact concerning possession other than
ownership of the firearm." It allegedly ignored the question
of intent to control. In fact, the government offered
Rogers' own statement that he intended to use his gun to
commit suicide if the police were to find him.
Rogers also argues that 18 U.S.C. 922(g) is
unconstitutionally vague to the extent that it proscribes
constructive possession. He notes that some courts require
proof of the defendant's "dominion and control" over the
firearm, see, e.g., Wight, 968 F.2d at 1398; others,
"dominion or control," see, e.g., United States v. McKnight,
953 F.2d 898, 901 (5th Cir.), cert. denied, 112 S. Ct. 2975
(1992) (emphasis added). Still others consider ownership of
the firearm either "irrelevant to possession," United States
v. Boykin, 986 F.2d 270, 274 (8th Cir.), cert. denied, 114 S.
Ct. 241 (1993), or virtually conclusive, United States v.
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Barron-Rivera, 922 F.2d 549, 552 (9th Cir. 1991). These
inconsistencies, Rogers argues, leave him with insufficient
notice of the conduct that is criminally proscribed.
Because "dominion," "control," and "ownership" are
overlapping concepts, it is not surprising that some judicial
glosses upon "possession" may seem facially inconsistent.
These differences do not, however, make the language of 18
U.S.C. 922(g) unconstitutionally vague. We think that the
term "possession" concretely describes the conduct proscribed
by the statute.2 More than a few laws would be in jeopardy
if absolute consistency of judicial interpretation were the
measure of a law's constitutionality.
B. The Sufficiency of the Indictment
B. The Sufficiency of the Indictment
Rogers argues next that his indictment was
insufficient because it failed to set forth "any facts
(except for an 'on or about' date) . . . as to the charge of
having 'possessed' the weapon . . . ." On the contrary, the
indictment stated the date of the offense, the district in
which it occurred, the make, type and serial number of the
firearm, the felony conviction underlying the charge, and the
citation of the statute. The indictment provided a "plain,
2. Cf. Zavala Maldonado, 23 F.3d at 7 (the idea underlying
constructive possession is "not so difficult to grasp.
Courts are saying that one can possess an object while it is
hidden at home in a bureau drawer, or while held by an agent,
or even while it is secured in a safe deposit box at the bank
. . . .").
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concise and definite written statement of the essential facts
constituting the offense charged." Fed. R. Crim. P. 7(c)(1).
No more was required to "fairly inform[]" Rogers of the
possession charge, "and [to] enable[] him to enter a plea
without fear of double jeopardy." United States v. Yefsky,
994 F.2d 885, 893 (1st Cir. 1993) (citing Hamling v. United
States, 418 U.S. 87, 117 (1974)).3
C. The Jury Instructions
C. The Jury Instructions
Rogers argues that the jury instructions
incorrectly defined "possession" in terms of ownership.
Because defense counsel did not object on this basis, we
review the instructions only for plain error. United States
v. Burns, 15 F.3d 211, 217 (1st Cir. 1994).
"'Constructive' possession is commonly defined as
the power and intention to exercise control, or dominion and
control, over an object not in one's 'actual' possession."
Zavala Maldonado, 23 F.3d at 7. The district court explained
possession as follows:
The term "possess" as used in [ 922(g)]
is not necessarily equated with legal
ownership of the firearm here at issue.
The law recognizes two kinds of
possession, actual possession and
constructive possession. A person who
knowingly has direct physical control
3. Rogers also complains that the indictment did not specify
whether he actually or constructively possessed the firearm.
As we noted earlier, constructive possession is possession,
not a separate predicate act that has to be spelled out in
the indictment.
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over a thing at a given time is then said
to be in actual possession of that thing.
A person who, although not in actual
possession, knowingly has both the power
and the intention at a given time to
exercise dominion or control over a
thing, or to exercise dominion or control
over the area in which that thing is
found, whether directly or through
another person, is then in constructive
possession of the thing [emphasis added].
We discern no error in this explanation. The
instructions correctly stated that ownership is relevant to
the question of possession. To be sure, ownership alone does
not establish possession, but it may be highly relevant where
the authority to exercise control is disputed. Cf. United
States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992)
(finding possession of cocaine where drug courier "carried
baggage claim tickets that represented her legal right to
reclaim [her] luggage").4
Rogers also complains that the district court used
the conjunction "or" rather than "and" -- "dominion or
control." Dominion, however, is generally defined as
"perfect control in right of ownership." Black's Law
Dictionary 436 (5th ed. 1979) (emphasis added). Pursuant to
4. We think that the blanket statement in Boykin, 986 F.2d
at 274, that "ownership is irrelevant to possession," must be
considered in context. In Boykin, the defendant's wife
claimed that she owned the firearm. Had the defendant
himself owned the firearm, the court would not have
considered that fact irrelevant. See id. ("Constructive
possession . . . is established if the person has . . .
control, ownership, or dominion over the firearm itself").
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the court's instruction, there could have been no conviction
absent a finding of control.5
Rogers argues next that the district court
committed plain error by giving only a general unanimity
instruction, and no specific unanimity instruction. During
its deliberations, the jury sent a note to the district
judge: "We would like clarification of the two types of
possession." The court repeated its original instruction on
possession, and this exchange took place:
THE COURT: Does that answer your
question, ladies and gentlemen? It
doesn't? That's the law on actual and
constructive possession. You're shaking
your head, sir. What's the problem?
MR. ROWELL: Interpretation of
constructive possession. If you know
where something is do you constructively
possess it?
THE COURT: I can't give you
anything more than what I've given you.
That's what the law says. Sorry about
that. Anything further? Thank you.
5. At times, we have used the conjunctions "and" and "or"
interchangeably. Compare United States v. Latham, 874 F.2d
852, 861 (1st Cir. 1989) ("constructive possession [is]
defined as exercising dominion, or control over the drug to
be distributed"), with Wight, 968 F.2d at 1398 ("dominion and
control"). See also United States v. Acevedo, 842 F.2d 502,
507 (1st Cir. 1988) (quoting, with approval, the phrase
"dominion or control" from jury instructions). We see no
real contradiction so long as the term "dominion" is properly
understood as encompassing control.
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Although the district court might have attempted to
refine its explanation,6 it was not required to give an
instruction on specific unanimity at this point. Congress
did not define possession in terms of alternative acts, any
one of which would suffice for a conviction. Thus, the one-
count indictment in this case had no inherent tendency to
produce a patchwork verdict. Cf. United States v. Antonio
Medina Puerta, No. 93-2167, slip op. at 16 (1st Cir. Oct. 21,
1994) (noting threat of non-unanimous verdict where divergent
conduct underlay two branches of a single count). Unlike the
jury in United States v. Duncan, 850 F.2d 1104, 1109 (6th
Cir. 1988), which asked whether it must agree as to each of
the alternative acts underlying the offense, the juror in
this case simply asked for clarification of possession, the
one act necessary for conviction. We see no threat of a
patchwork verdict beyond the possibility, conceivably present
in every case, that a juror may not have understood the
court's explanation of the law.
D. The un-Mirandized Statement
D. The un-Mirandized Statement
Rogers argues that the district court committed
plain error in admitting evidence of his statement, made in
6. In Zavala Maldonado, 23 F.3d at 7, we noted that "[t]he
'constructive possession' label may confuse jurors at first -
- drug trial juries routinely ask to be reinstructed on the
definition of possession -- but the underlying idea is . . .
not so difficult to grasp."
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the bedroom of the apartment, that he would have blown his
brains out had he been able to reach his gun.
After taking Rogers into custody, the officers
waited approximately ten minutes for the arrival of another
officer who could positively identify the defendant. In the
meantime, they asked Rogers who he was. There is no evidence
that the officers asked Rogers for more than his name, cf.
United States v. Doe, 878 F.2d 1546, 1551 (1st Cir. 1989)
("[a]ssuming the existence of a Miranda exception" for
routine booking interrogation), or that his statement was
anything but voluntary and spontaneous. Accordingly, we
cannot find plain error.
E. The Sufficiency of the Evidence
E. The Sufficiency of the Evidence
Rogers argues that the evidence of constructive
possession was insufficient to support his conviction. In
making this argument, he bears "the heavy burden of
demonstrating that no reasonable jury could have found [him]
guilty beyond a reasonable doubt." United States v.
Innamorati, 996 F.2d 456, 469 (1st Cir.), cert. denied, 114
S. Ct. 409 (1993). We review the evidence in the light most
favorable to the government, "drawing all plausible
inferences in its favor and resolving all credibility
determinations in line with the jury's verdict." Id.
The government's case for constructive possession
rested on (1) Rogers' declaration that if he could have
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gotten to his gun in the apartment, he would have blown his
brains out; (2) his admission that he owned the gun; and (3)
the bullet found in his pocket, which matched the gun. This
evidentiary tripod is sufficient to establish power as well
as intent to exercise dominion and control over the gun.
That Rogers did not shoot himself simply illustrates a fact
of constructive possession: power and intent to act do not
always result in action.
When the officers arrived at the apartment, Rogers
hid in the closet of the northeast bedroom rather than move
toward the gun in the northwest bedroom. One officer
testified that once the front door to the apartment was
opened, it was possible to see someone entering or leaving
any of the bedrooms. The jury could have reasonably believed
that Rogers did not try to reach the gun because he hoped to
escape detection.
F. Evidence of Other Crimes
F. Evidence of Other Crimes
Rogers assigns plain error in the admission of
evidence of several of his prior crimes. On direct
examination, Rogers freely admitted that he had been
convicted of burglary "[m]any times." Dissatisfied, perhaps,
with his sanguine answer, the government inquired into at
least six of Rogers' burglaries. In most instances, the
government asked about the underlying crime without
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establishing a conviction. See Fed. R. Evid. 609(a).7 The
following exchange is typical:
Q: Isn't it a fact that on or about
July 29th, 1986 in Manchester you
purposefully entered a building housing
the Queen City Farms, broke into it to
steal property?
A: I did, sir.
Q: Isn't it a fact that on or about
July 29th, 1986 in Manchester you entered
the Sunoco Service Station at 229 Queen
City Avenue, Manchester, broke into it in
order to steal property?
A: I did, sir.
The government argues that the strictures of Rule
609 do not apply because it was simply trying to correct the
defendant's own testimony.8 Cf. United States v. Brooke, 4
F.3d 1480, 1488 n.10 (9th Cir. 1993) (Rule 609 "does not . .
. address or resolve the admissibility of cross-examination
regarding arrests," as opposed to convictions, "particularly
7. Rule 609(a) provides in relevant part: "For the purpose
of attacking the credibility of a witness . . . evidence that
an accused has been convicted of [a crime punishable by death
or imprisonment in excess of one year under the law under
which the accused was convicted] shall be admitted if the
court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused"
(emphasis added).
8. The government does not contend that the evidence of
Rogers' criminal conduct was properly admitted under Fed. R.
Evid. 608(b), which provides, in relevant part, that
"[s]pecific instances of the conduct of a witness . . . may .
. . in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-
examination of the witness . . . concerning the witness'
character for truthfulness or untruthfulness[.]"
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where such questions do not relate to general credibility but
to specific information elicited on direct"). On direct
examination, Rogers falsely stated that he had been offered a
plea bargain for the case then being tried. He also admitted
that he had misled police officers during his interrogation.
Rogers did not, however, attempt to "explain away" his
burglary convictions, see United States v. Robinson, 8 F.3d
398, 411 (7th Cir. 1993) (even an assertion of innocence does
not rise to level of "explaining away" the conviction). Nor
did he otherwise "equivocate[] in a self-serving manner" with
respect to those convictions, see United States v.
Watchmaker, 761 F.2d 1459, 1474 (11th Cir. 1985), cert.
denied, 474 U.S. 1100 (1986). Accordingly, this part of the
government's cross- examination relates only to Rogers'
general credibility, and any impeachment by evidence of
convictions should have been conducted in accordance with
Rule 609(a).
Even if the government had established all six
convictions, it is unclear whether the district court
"determine[d] that the probative value of admitting this
evidence outweigh[ed] its prejudicial effect to the accused."
See Rule 609(a)(1). During Rogers' cross-examination, the
district court instructed Rogers to answer a question
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regarding the burglaries at Louisa's:9 "That goes to your
credibility and under the Federal Rules of Evidence he's
entitled to inquire as to any crime you committed in the last
ten years" (emphasis added).10 This categorical statement
suggests that the district court may have failed to assess
the prejudicial effect of the evidence of each conviction
under Rule 609(a)(1).11
We nonetheless hold that it was not plain error for
the district court to admit the evidence of Rogers'
burglaries. Under Rule 609, we think that at least five of
the burglary convictions would have been admissible. The
sixth, the sole documented conviction, presents a close
question because a firearm was one of the stolen items
recovered from the defendant. But even if the admission of
the sixth conviction were a "clear" or "obvious" error that
affected "substantial rights," we doubt that it resulted in a
9. As we explain infra, this part of the cross-examination
was properly admitted (albeit for reasons different from
those given by the district court).
10. Rule 609(b) provides in part: "Evidence of a conviction
under this rule is not admissible if a period of more than
ten years has elapsed since the date of the conviction . . .
."
11. Cf. United States v. Tavares, 21 F.3d 1 (1st Cir. 1994)
(en banc) (where defendant is charged as a felon-in-
possession in violation of 18 U.S.C. 922(g), evidence of
the nature of the predicate conviction is not admissible
unless the trial court identifies special circumstances
establishing that the relevance of the evidence is
"sufficiently compelling to survive the balancing test of
Fed. R. Evid. 403").
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"miscarriage of justice" such as "the conviction or
sentencing of an actually innocent defendant." United States
v. De Masi, No. 92-2062, slip op. at 28 (1st Cir. Oct. 26,
1994) (quoting United States v. Olano, 113 S. Ct. 1770, 1776-
79 (1993)) (defining plain error).
G. Prosecutorial Misconduct
G. Prosecutorial Misconduct
Rogers argues that the district court committed
plain error by permitting various instances of alleged
prosecutorial misconduct. Commenting on the evidence of
Rogers' burglaries, the prosecutor stated that he had to
"pull the documented facts out of" Rogers, for Rogers "won't
even admit to some of the cases we have certified convictions
of." The prosecutor also invited the jury to "imagine
[Rogers] walking around with a loaded gun[.]" Finally, the
prosecutor "submit[ted] that [the defendant's] entire
testimony was riddled with lies and evasions": the defendant
"testified and fabricated his entire testimony right before
you."
Although we are troubled by the prosecutor's
rhetoric -- "walking around with a loaded gun" implies actual
possession, which was not proved -- and by the pejorative
comments upon evidence that may have been improperly elicited
in the first place, cf. Brooke, 4 F.3d at 1488 (continued
references to erroneously-admitted evidence in closing
arguments may make error harmful), we do not find plain
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error. There was simply no "'cumulative evidence of a
proceeding dominated by passion and prejudice,'" United
States v. Capone, 683 F.2d 582, 586 (1st Cir. 1982) (quoting
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240
(1940)).
H. Hearsay Evidence
H. Hearsay Evidence
Rogers argues that it was plain error to admit
police testimony suggesting that he may have been armed:
We told [the tenant of the
apartment] . . . [w]e were there looking
for Scott Rogers and the information we
had was that he was in this apartment,
and that we had also had information that
he may be armed and that we wanted to
come in and look for him, and that if too
much hesitation went on somebody could
get hurt due to the fact that we felt he
was armed [emphasis added].
Another officer testified that he was dispatched to the
apartment "because we had information that Scott Rogers was
at the address and that he was possibly armed . . . ."
Rogers argues that these statements were hearsay going to the
issue of possession, the only disputed element in the case.
By its silence, the government has apparently
conceded that the statements were hearsay not covered by any
exception. The hearsay did not affirmatively assert that
Rogers was armed -- only that he "may be" armed, or was
"possibly armed." Moreover, in light of Rogers' two
statements of intent to use his gun, which were virtual
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confessions on the element of possession, the hearsay had
only a cumulative effect. We find no plain error.
I. Rebuttal Testimony
I. Rebuttal Testimony
Rogers argues that it was plain error to admit the
government's rebuttal testimony regarding his confessions at
the police station. On direct examination, Rogers testified
that he was under pressure to confess to "all these different
cases," and that he "made up [a] story" about breaking into
the Sub Hut restaurant. On cross-examination, Rogers stated
that he had been questioned about two burglaries at Louisa's,
but denied that he had confessed to breaking into Louisa's
and taking the safes.
The government called Sergeant Jaskolka, one of
Rogers' interrogators, as a rebuttal witness. Jaskolka
affirmed precisely what Rogers had denied on cross-
examination, to wit, Rogers in fact confessed to both
burglaries at Louisa's. Not only was there no plain error,
this rebuttal testimony was entirely proper.
J. Self-incrimination
J. Self-incrimination
Rogers argues that the district court committed
reversible error by instructing him, over his attempt to
"plead the Fifth," to answer a question about the burglaries
at Louisa's. On cross-examination, the prosecutor asked:
"How would you know how much was taken out [of the safes from
Louisa's]?" Rogers' counsel objected only on the ground of
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relevance. Accordingly, we review the instruction to answer
only for plain error -- and find none. Rogers certainly did
not incriminate himself with respect to the charged offense.
Moreover, the government was entitled to ask the question it
did because Rogers first denied that he had confessed to the
burglaries, and then -- somewhat inconsistently -- stated
that he "was asked how much money was taken out of the
safes." See United States v. Concemi, 957 F.2d 942, 947-48
(1st Cir. 1992) (quoting Brown v. United States, 356 U.S.
148, 154-55 (1958)) (the credibility of a testifying criminal
defendant "may be impeached and his testimony assailed like
that of any other witness, and the breadth of his waiver is
determined by the scope of relevant cross-examination").
K. The Motion for New Trial
K. The Motion for New Trial
On June 20, 1990, more than a month and a half
after the verdict, Rogers filed a motion for new trial under
Fed. R. Crim. P. 33, alleging that the government had wrongly
withheld a possessed property report (PPR) showing that a box
of .32 caliber bullets had been seized from the apartment at
5 Wheelock Street. We review the district court's denial of
the motion for a new trial only for abuse of discretion.
United States v. Nickens, 955 F.2d 112, 116 (1st Cir.), cert.
denied, 113 S. Ct. 108 (1992).
The district court found the evidence of the PPR
immaterial because, in the context of the entire record,
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there is "no reasonable doubt about guilt whether or not the
[PPR] is considered." July 13, 1990 Order at 4-5 (quoting
United States v. Agurs, 427 U.S. 97, 112-13 (1976)). We
agree that the PPR was not itself material evidence. "The
evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different." United States v. Bagley, 473 U.S. 667, 682
(1985). The decisive issue at trial was possession, not how
many rounds of ammunition were seized by the police. There
is no reasonable probability that the report would have
changed the jury's verdict.12
We, however, are gravely concerned by the
government's "use" of the report at trial. Although the
government did not introduce the report as evidence, it
apparently took advantage of its absence from the evidence to
discredit Rogers. On cross-examination, the officer who
searched the apartment after Rogers' arrest failed to recall
"any ammunition . . . being specifically taken." When Rogers
testified that the bullet found in his own pocket came from a
box of fifty that Glennon carried around with him, the
prosecutor insinuated that there were no other bullets:
12. Moreover, the motion for new trial failed to allege that
the report was evidence newly discovered after trial -- the
only ground upon which the motion could have been timely.
See Fed. R. Crim. P. 33.
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Q. You were here when the other
officers testified; right?
A. Yes, sir.
Q. You didn't hear them saying anything
about a box of bullets; right?
A. No, I didn't.
Q. There was just -- the only bullet
that they found was the one in your
pocket; right?
A. Supposedly.
Rogers then referred to the possessed property report,
which he believed would have corroborated his story:
Supposedly that was the only bullet that
was in the apartment . . . . In fact, I
know there was a box of 50 that was for
the wrong gun . . . . [H]e [Glennon] went
out and he had bought another box of 50
and they were sitting right by the gun.
Your guess is as good as mine where they
went. I've asked the Police Department
to produce a copy of the computerized
stuff what they says they removed from
the apartment and I have not got it yet
and it's been over a year.
The prosecutor responded: "So the police stole the box of
bullets?" And, a moment later: "So the police are covering
it up then." The implication is that Rogers had fabricated
testimony of a police cover-up. Even if the prosecutor had
been ignorant of the report at trial, we would still find his
conduct inexcusably negligent. We decline to reverse only
because the report and the box of bullets are simply not
material to the issue of possession, and the isolated, though
improper, cross-examination on a peripheral matter was not
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"likely to have affected the trial's outcome." United States
v. Manning, 23 F.3d 570, 575 (1st Cir. 1994).13
13. Absent harmful error, we cannot use our supervisory
power to deter future prosecutorial misconduct. Id. at 574
n.2 (citing United States v. Hasting, 461 U.S. 499, 506
(1983)).
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L. Ineffective Assistance of Counsel
L. Ineffective Assistance of Counsel
At sentencing, Rogers filed a pro se motion to
dismiss counsel, alleging the denial of his Sixth Amendment
right to effective assistance of counsel, and seeking new
counsel for sentencing. Rogers complained that certain
witnesses had not been subpoenaed to testify on his behalf at
trial. The district court denied the motion. It stated:
"I'm going to, for the benefit of the Court of Appeals, find
and rule as a matter of law that [counsel] was more than
effective within the meaning of Strickland [v.]
Washington[,]" 466 U.S. 668 (1984). Rogers not only appeals
the denial of the motion to dismiss counsel, which he now
construes as a motion for new trial, but also argues that the
record is sufficient to show that he received ineffective
assistance of counsel.14
The motion to dismiss counsel was correctly denied
for the reason stated by the district court. On direct
appeal, we will resolve a claim of ineffective assistance not
raised in the district court only if the "critical facts are
not in dispute and a sufficiently developed record exists."
United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993).
We do so here. From the record and the undisputed facts, it
14. Rogers asks us to reach his claim of ineffective
assistance "[w]ithout prejudice to his right to later present
the issue to the district court if necessary . . . ." We
will assume that his pro se motion to dismiss counsel did not
already raise this claim in the district court.
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is clear that defense counsel should have objected to certain
parts of the police testimony and to some of the evidence of
Rogers' prior crimes. It is equally clear, however, that
counsel's performance was not so woeful as to fall below the
constitutional norm of Strickland. The failure to make
certain evidentiary objections did not strip Rogers of "the
very means that are essential to subject the prosecution's
case to adversarial testing." Scarpa v. Dubois, No. 93-1795,
slip op. at 17 (1st Cir. Oct. 18, 1994) (citing Strickland,
466 U.S. at 688). Moreover, we see no "reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different."
Strickland, 466 U.S. at 694.
Affirmed.
Affirmed.
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