June 14, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1819
UNITED STATES,
Appellee,
v.
RUSSELL DiNOVO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin and Lynch, Circuit Judges,
and Schwarzer,* Senior District Judge.
Lawrence P. Murray with whom Henry F. Owens, III and Owens &
Associates were on brief for appellant.
Emily R. Schulman, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
* Of the District of Northern California, sitting by designation.
Per Curiam. On December 9, 1992, officer John Albert of
the Cambridge Police Department spotted appellant-defendant
Russell DiNovo driving with a male passenger in a Toyota
Camry traveling along Cambridge Street. When the car stopped
in traffic, Albert observed that its right rear window was
missing, that pieces of glass were in the car's door frame
and that a screwdriver was inserted in the ignition. A check
of the car's license plate number revealed that the car had
been stolen earlier that day. Based on this information,
police officers shortly thereafter arrested DiNovo and the
passenger, Irving Lee.
During the course of the arrest, Albert noticed that
both men were wearing two sets of clothes. Upon searching
DiNovo, police discovered what appeared to be a homemade mask
made out of a shirt sleeve. A second mask was later found in
the police wagon that transported DiNovo and Lee to the
police station. A search of the Camry yielded a loaded
Beretta 9 millimeter semi-automatic pistol located underneath
the front seat of the car. A palm print lifted from the butt
of the pistol matched DiNovo's left palm.
DiNovo was charged with being a felon in knowing
possession of a firearm in violation of 18 U.S.C.
922(g)(1). At trial, DiNovo took the position that the
evidence did not establish that he had ever possessed the
Beretta, but he was nevertheless convicted by the jury.
-2-
-2-
Because DiNovo had three previous convictions for violent
crimes, he was sentenced under the Armed Career Criminal Act,
18 U.S.C. 924(e), to 235 months' imprisonment. On appeal,
DiNovo challenges both his conviction and sentence.
DiNovo first objects to the admission of the two pieces
of cloth that the jury could reasonably have concluded were
homemade masks. The masks, together with other indications
that a robbery was planned, helped to supply a basis for the
jury to infer a motive for DiNovo's possession of the weapon.
While the masks thus fall within the literal terms of Fed. R.
Evid. 404(b), DiNovo objects that the inference of a planned
robbery was too thin to satisfy Rule 404(b) and the potential
for prejudice too great to justify admissibility of the masks
under Fed. R. Evid. 403.
The district court's judgment on issues of this kind is
normally given wide latitude. See Espeaignnette v. Gene
Tierney Co., Inc., 43 F.3d 1, 5 (1st Cir. 1994). In all
events, the masks together with other evidence--the stolen
car, the double suits of clothes--made the inference that a
robbery was planned far more than mere speculation. As for
the balancing of need versus prejudice under Rule 403, the
government had ample need for the motive evidence in order to
confirm DiNovo's connection with the weapon. The risk of
unfair prejudice was quite limited compared to 404(b) cases
inwhich evidence of actualprior crimes is regularly admitted.
-3-
-3-
DiNovo's second major objection relates to the district
court's charge on the definition of possession. The district
court's charge for the most part described the concepts of
actual and constructive possession in terms that were either
conventional or generally helpful to DiNovo. DiNovo's main
complaint is that the district court refused to include in
the charge certain language proposed by the defense
including, most importantly, an instruction that "[m]ere
incidental touching or handling of the object does not
constitute possession." On appeal, DiNovo argues that this
proposed request was a proper statement of the law and
necessary in light of DiNovo's theory that his print on the
weapon might be explained by a mere touching.
On theory of the defense grounds, DiNovo might arguably
have been entitled to some instruction that made clear to the
jury that not every incidental contact with the weapon
automatically compelled the jury to find possession. But the
language proposed by DiNovo went much further. It extended
to an "incidental . . . handling" of the weapon, and it
essentially directed the jury that such an incidental
handling would never be enough to convict. Whether the
quoted language is regarded as confusing or a flat
overstatement, it is plain that the district court was not
obliged to give this instruction.
-4-
-4-
A defendant who requests an instruction is obliged to
provide an instruction that accurately reflects the law. See
United States v. Iaciofano, 734 F.2d 87, 90 (1st Cir.), cert.
denied, 469 U.S. 850 (1984). The district judge is not
obliged to carve down and preserve the unspoiled core of an
otherwise tainted piece of fruit. In this instance, the
district court, in response to DiNovo's request, modified the
possession charge to say that the defendant had to possess
the weapon "knowingly" and "[k]nowingly means he possessed
with intent to exercise dominion and control over the
firearm." Not only did the court properly reject DiNovo's
overstated or confusing instruction, but it gave him the
substance of what he might reasonably have requested.
DiNovo's third argument is that the district court erred
when, on a request by the jury, it provided the jury with a
magnifying glass--presumably sought to examine exhibits--
during its deliberations. DiNovo complains that the district
court should not have supplied this glass without asking the
jury about its precise intended purpose and giving limiting
directions as to its proper use. Improper use, DiNovo now
contends, might distort the appearance of an exhibit.
At trial DiNovo's counsel objected to giving the jury
the magnifying glass but never asked the judge to inquire
into its intended use or give jurors any instructions, nor
did DiNovo identify for the district court any specific
-5-
-5-
potential misuse of the magnifying glass against which
precautions should be taken. Jury management matters are
normally within the district court's sound discretion, and if
DiNovo wanted questions to be asked or limitations to be
imposed, he was obliged to say this to the district judge.
There is certainly no plain error in the district judge's
handling of the matter.
Finally, DiNovo objects to a procedural ruling
pertaining to his sentencing. DiNovo received the pre-
sentence report on April 19, 1994, was given two continuances
at his own request, and finally was scheduled for sentencing
on July 13. On that date, DiNovo's CJA counsel moved to
continue the sentencing and withdraw because of DiNovo's
dissatisfaction with counsel's representation and DiNovo's
assertion that he might after investigation wish to challenge
the validity of certain of the prior convictions listed in
the pre-sentence report.
Custis v. United States, 113 S. Ct. 1732 (1994),
narrowed the grounds on which a defendant may at sentencing
attack a prior conviction under the Armed Career Criminal
Act. When at sentencing DiNovo expressed a desire to have
his earlier convictions investigated, the district court
inquired of defense counsel and counsel explained that under
Custis he believed that DiNovo had no basis to attack at
sentencing any of his prior convictions. It was at that
-6-
-6-
point that the district court refused to replace defense
counsel or to continue the sentencing for a third time.
Neither in the district court nor in this court has
DiNovo explained what purpose would have been served by a
continuance. He does not claim that any of the prior
convictions were obtained without representation by counsel
nor has he pointed to any other reason for delaying his
sentencing except a generalized desire to investigate his
prior convictions. Under these circumstances one can hardly
say that the district court abused its discretion in refusing
a third continuance of the sentencing or that DiNovo has been
prejudiced by the district court's refusal.
In the closing paragraphs addressed to this issue,
DiNovo's brief on appeal says that his counsel at sentencing
misread Custis and that DiNovo was deprived of effective
assistance of counsel at sentencing. It is by no means clear
on this record that defense counsel misunderstood the
limitations imposed by Custis or that, if he did
misunderstand them, his misunderstanding had any practical
importance in this case. In all events, the ordinary rule is
that attacks on the adequacy of trial counsel are not
normally considered on direct appeal, but are reserved for
proceedings under 28 U.S.C. 2255. See United States v.
Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert. denied, 114 S.
-7-
-7-
Ct. 1839 (1994). This case illustrates the reasons for the
rule, and we invoke it here.
Affirmed.
-8-
-8-