United States v. Scott N. Rogers

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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