United States v. Lanoue

February 8, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1140

UNITED STATES,

Appellee,

v.

LAWRENCE M. LANOUE,

Defendant.

ERRATA SHEET

The opinion of this court issued on December 15, 1995, is

amended as follows:

Cover Sheet: Change "Defendant." to "Defendant, Appellant."

January 11, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1140

UNITED STATES,

Appellee.

v.

LAWRENCE M. LANOUE,

Defendant, Appellant.

ERRATA SHEET

The opinion of this Court issued on December 15, 1995, is

corrected as follows:

On page 13, line 21 - delete "0" at the beginning of the line.

On page 46, line 3 - insert the word "doubt" between "reasonable"

and "that".

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1140

UNITED STATES,

Appellee.

v.

LAWRENCE M. LANOUE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

David L. Martin, for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, and James H. Leavey,

Assistant United States Attorney, were on brief for appellee.

December 15, 1995

BOWNES, Senior Circuit Judge. Appellant Lawrence
BOWNES, Senior Circuit Judge.

M. Lanoue (Lanoue) appeals his convictions and sentence for

interstate transportation of a stolen motor vehicle, 18

U.S.C. 2312 (Count V), interstate transportation of a

firearm with an obliterated serial number, 18 U.S.C. 922(k)

(Count VI), and conspiracy to commit federal offenses, 18

U.S.C. 371 (Count I). Lanoue contends that he is entitled

to a new trial on all counts because the trial court abused

its discretion by refusing to declare a mistrial when the

government cross examined a critical defense witness with

Lanoue's own statements which were intercepted in violation

of Title III of the Omnibus Crime Control and Safe Streets

Act, 18 U.S.C. 2510-2521 (Title III), and then withheld

from him in violation of Fed. R. Crim. P. 16(a)(1)(A).

Lanoue also contends that there was insufficient evidence to

convict him of Counts I and VI, and that the trial court

improperly enhanced his sentence based on conduct of which

the jury had acquitted him.

We vacate Counts I and V and remand them for a new

trial, affirm Count VI, and order a sentence on Count VI of

60 months imprisonment.

I. BACKGROUND
I. BACKGROUND

A. Relevant Facts
A. Relevant Facts

1. The Government's Case

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The government's theory at trial was that Lanoue

and his co-defendant Albert Cole (Cole) stole a 1986

Oldsmobile Firenza, and that they and their co-defendant

Patrick Meade (Meade) used the car in an attempted robbery of

an armored car courier. The government's case consisted

primarily of the testimony of fourteen of the approximately

fifty FBI agents and Rhode Island State police officers who

conducted a massive land and air surveillance of Lanoue and

the Oldsmobile and assisted in his arrest.

On December 17, 1993, eight FBI agents attached a

tracking device to a 1986 Oldsmobile Firenza located in the

lot of American International Leasing in Worcester,

Massachusetts. On December 19, 1993, Lanoue and Cole brought

the Oldsmobile to a farm in Pascaog, Rhode Island. The

farm's owner, Kenneth Gareau (Gareau), was a friend of Cole's

who repaired cars. He testified that Cole asked him to

repair the front end, that he said he could get to it in a

week or so, that it "looked like" Cole took the license plate

off the Oldsmobile and put it in the trunk, and that Cole and

Lanoue then departed.

American International Leasing reported the

Oldsmobile stolen on December 21, 1993. Agents conducting

surveillance from an airplane observed Lanoue and Cole return

to the farm on the morning of December 23, 1993, and drive

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the Oldsmobile to the Ames Plaza in Bellingham,

Massachusetts, where they met Meade.

While the defendants were parked between a pizza

parlor and a liquor store in a lot adjacent to the Ames lot,

an unmarked armored car, that appeared to be an ordinary Ford

Aerostar van, parked in front of the main entrance to the

Ames store. A uniformed courier exited the van and entered

the Ames store. Several minutes later, Lanoue and Cole drove

from the adjacent lot to the Ames lot and parked. Lanoue was

arrested as he walked towards the main entrance of the Ames

store. He had a loaded 38 caliber Colt revolver with an

obliterated serial number in his waistband. One of the

arresting officers testified that Lanoue immediately said:

"I am Mitch.1 You got me. I am gone for life. I have a

piece." Another testified that when he asked Lanoue where

the other vehicles were, he stated: "You know everything.

That's why you're here. I am here alone." Another agent

testified that after Lanoue was taken into custody he said,

"I wonder who the rat was on this job." And another agent

testified that Lanoue said that he would die in prison no

matter how long his sentence was because he was 72 years old.

Cole was arrested in the Oldsmobile, which bore a

stolen license plate. The ignition was not "popped" and the

keys were in it. Meade was arrested in his own car on the

1. Lanoue was known as Mitch.

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other side of the lot with a loaded Smith and Wesson 36

caliber revolver in his pocket.

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2. The Defendant's Case

Although the law enforcement witnesses did not

offer to explain how they came to attach a tracking device to

the Oldsmobile and follow its and Lanoue's movements

thereafter, cross examination revealed that an informant had

provided FBI Agent Brosnan, the case agent, with information

that Lanoue and others planned to steal the car and use it in

an armored car robbery.

The defense theory was that the informant was

Richard Laraviere (Laraviere), and that the information he

provided and upon which the investigation and prosecution

rested, was false. According to the defense, Lanoue bought

the Oldsmobile from Laraviere, who then falsely informed the

FBI that Lanoue was planning to steal the car and use it in

an armored car robbery in order to obtain favorable treatment

on theft charges pending against him in Massachusetts. The

defense suggested that the government was eager to believe

Laraviere and assemble a small army to arrest Lanoue because

Lanoue had been found not guilty in a case tried by the same

prosecutor in 1991. The defense emphasized that the

government had not called Laraviere to testify, although he

was the only witness who could corroborate its theory that

Lanoue stole the Oldsmobile.

Lanoue testified and called Charles Carron (Carron)

as a witness to corroborate his own testimony. They both

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testified in effect as follows. On December 17, 1993, Lanoue

was helping Carron remove debris from his house when

Laraviere arrived. Laraviere was a millionaire who owned

real estate and had once owned a used car dealership. He

previously had offered to sell Lanoue a car which Lanoue

declined to buy. On this occasion, Lanoue mentioned that he

wanted to buy a car for his daughter. Laraviere responded

that one of his tenants had abandoned an Oldsmobile that he

wanted to sell and said that it was located at American

International Leasing in Worcester, which he implied he owned

or partially owned. The three drove to American

International Leasing, Laraviere obtained the keys from an

employee there, and they took the Oldsmobile for a test

drive.

Carron testified that upon their return to the lot,

he observed Lanoue and Laraviere having a discussion and then

saw Lanoue remove money from his wallet and hand it to

Laraviere. Lanoue testified that he and Laraviere agreed on

a price of $500, that he gave Laraviere a down payment of

$200, and that they agreed that Lanoue would pay the balance

and take the car on Sunday, December 19.

Lanoue testified that on December 19, he and Cole

drove to American International Leasing in Lanoue's truck,

that he paid Laraviere the $300 balance and then drove off in

the Oldsmobile with Cole following in the truck. Lanoue

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testified that as he drove the Oldsmobile back to Rhode

Island, he noticed that there was something wrong with the

front end. He and Cole therefore took the Oldsmobile to

Gareau to be repaired. On December 23, Lanoue and Cole

picked up the car on the way to the Ames Plaza where they

planned to go Christmas shopping. Lanoue soon found out that

Gareau had not worked on the car and took it to another

garage, but the person he wanted to look at it was not there.

He and Cole then proceeded to the Ames Plaza where they met

Meade. As Lanoue walked towards the Ames store where he

planned to buy a watch, he was arrested. After Lanoue

rested, Cole testified in his own behalf, confirming Lanoue's

account of events on December 19 and 23.

Lanoue testified that he carried a gun for

protection, explaining that his life had been threatened

before and that the police had laughed when he reported it

because he had a criminal record. Lanoue acknowledged that

he had cleaned the revolver, denied that he had obliterated

its serial number, but did not deny that he knew it was

obliterated. Lanoue admitted to stating, "I have a piece on

me," and that when an agent asked him who was with him he

responded that he was alone, meaning that he was alone when

he was arrested. He denied making the other statements

government witnesses attributed to him.

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Lanoue and Carron also gave testimony indicating

that Laraviere provided false information in this case in

order to gain favorable treatment on pending criminal

charges. Carron testified that Laraviere had once stored

boating equipment in his garage. When Carron later learned

that it was stolen, he reported it to the police, who removed

the property and told him that Laraviere had a reputation for

claiming that property he had stolen had been stolen by

someone else.

Lanoue testified that Laraviere had told him

shortly before his own arrest that he had been indicted on

fifty-seven counts of theft in Massachusetts, and that he

would soon have to begin serving a two-year sentence for

those charges pursuant to a plea, unless he could do

something to avoid it. To that end, Laraviere offered to pay

Lanoue to frame the witness against him in that case. Lanoue

testified that he believed Laraviere had not gone to jail

because he falsely informed the government that Lanoue

planned to steal the Oldsmobile and rob an armored car.

Carron testified that he had visited Lanoue once

after his arrest while Lanoue was awaiting trial at the

Donald W. Wyatt Detention Center in Central Falls, Rhode

Island. Shortly thereafter, two FBI agents and a state

police detective visited him, refused to leave his home,

subpoenaed him to testify at Lanoue's trial, and threatened

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that if he did not testify against Lanoue, they would see to

it that his pension check and his girlfriend's disability

check or her job at the post office were taken away.

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B. Proceedings Below
B. Proceedings Below

Lanoue, Cole and Meade were charged in a six-count

redacted indictment.2 All three were charged in Count I

with conspiracy to commit federal offenses, 18 U.S.C. 371;

in Count II with conspiracy to interfere with commerce by

robbery, Hobbs Act, 18 U.S.C. 1951; in Count III with

attempt to interfere with commerce by robbery, Hobbs Act, 18

U.S.C. 1951; and in Count IV with using and carrying a

firearm during and in relation to an attempt or conspiracy to

commit robbery, 18 U.S.C. 924(c)(1). Count V charged

Lanoue and Cole with interstate transportation of a stolen

motor vehicle, 18 U.S.C. 2312, and Count VI charged Lanoue

alone with interstate transportation of a firearm with an

obliterated serial number, 18 U.S.C. 922(k). Counts III,

IV and V also charged the defendants with aiding and

abetting. 18 U.S.C. 2.

The trial began on October 24, 1994. On November

4, 1994, the jury convicted Lanoue of Counts I, V and VI,

acquitted him of all robbery-related charges, and acquitted

his co-defendants of all charges. On November 10, 1994,

Lanoue moved for judgment of acquittal on Counts I and VI,

2. The grand jury returned the original indictment on
January 5, 1994. A redacted indictment was filed when one
count was dismissed by the government with leave of court on
August 17, 1994.

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which was denied on December 19, 1994. On January 13, 1995,

the court sentenced Lanoue to 175 months in prison.

II. DISCUSSION
II. DISCUSSION

A. The Discovery Violation
A. The Discovery Violation

Lanoue contends that his convictions should be

reversed because the prosecutor cross examined Carron with

Lanoue's own recorded statements which the government

concedes it failed to disclose in violation of Fed. R. Crim.

P. 16(a)(1)(A) and the pre-trial discovery order. Rule

16(a)(1)(A) provides in relevant part:

Upon request of a defendant the
government must disclose to the defendant
and make available for inspection,
copying, or photographing: any relevant
. . . recorded statements made by the
defendant, or copies thereof, within the
possession, custody, or control of the
government, the existence of which is
known, or by the exercise of due
diligence may become known, to the
attorney for the government . . . .

The trial court's pretrial discovery order required the

government to disclose "[a]ny statements of the defendant

subject to disclosure pursuant to Rule 16(a)(1)(A)," and

"[w]hether the government counsel's file indicates that any

wire or oral communications have been intercepted." Lanoue

contends that he was incurably prejudiced by the government's

use of his statements and that the trial court therefore

erred in refusing to declare a mistrial.

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1. Cross Examination of Carron with Lanoue's
Recorded Statements

Carron's cross examination proceeded in three

parts. On Thursday, October 27, the prosecutor opened the

first part by accusing Carron of threatening Laraviere:

Sir, didn't the FBI tell you the reason
they were at your premises was because
you threatened an informant in this case?

Did you ever threaten Mr. Richard
Laraviere?

You ever threatened [sic] anyone?

Carron answered "No" to each of these questions. The

prosecutor attempted to impeach Carron's denial by asking if

Lanoue had told him that Laraviere was the informant in this

case, if Lanoue had then demanded that he visit him in

prison, and whether he and Lanoue had discussed Laraviere

during the visit. Carron confirmed that Lanoue had invited

him to visit him in prison in August of 1994 and that he did

so, but denied that they had discussed Laraviere. Carron

exhibited a poor memory for dates, but otherwise held up well

during this part of the cross examination. When Carron

stated that he could not swear that he had known Lanoue for

fifteen years but was sure he had not known him for thirty

years, the prosecutor began reading Lanoue's words from a

document while, in the court's words, "brandishing" it at the

witness:

Q Did Mr. Lanoue ever tell you that he
has known you for thirty years?

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A No, he never did.

Q Did Mr. Lanoue ever tell you not to trust the
cops. They know who the informant is and
that's why he wanted you to go on August the
twenty-first to meet him?

A No.

Q He didn't tell you, sir -- specifically, on
August the 20th of 1994, did Mr. Lanoue say to
you, "Let me tell you something. You don't
trust the cops. You should know that. We
forced it out of them. They got the informant
from up north near the Worcester area"?

Mr. Martin: I object.

A I don't remember that.

The court did not sustain the objection, but

directed counsel to approach the bench. The prosecutor

admitted that he had been reading Lanoue's statements from a

transcript of a recorded telephone call that Lanoue had made

to Carron from the Wyatt Detention Center while awaiting

trial, and that he had not disclosed it. The court asked the

prosecutor whether the document corroborated his questions

and he replied that it did. Defense counsel objected to the

use of the conversation because the government had withheld

it in violation of Fed. R. Crim. P. 16 and the court's pre-

trial discovery order, and requested a copy of the transcript

and a recess during which he could review it. The prosecutor

argued that defense counsel was not entitled to a recess and

that he was permitted to use the conversation because Carron

had committed perjury, it was retrieved in connection with a

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separate investigation of witness intimidation, and it was

not the fruit of a wiretap. The court directed the

prosecutor to continue his cross examination on another

subject, did not admonish him, strike the questions or

testimony, or give a curative instruction.

Part two of Carron's cross examination proceeded.

In contrast to his apparently confident answers in the first

part of his cross examination, Carron disavowed any ability

to fix a date or time period on any event, expressing concern

that the prosecutor was attempting to trap him into

committing perjury. He backed away from important parts of

his direct testimony, for example, now denying that he had

actually seen Lanoue hand Laraviere money after the test

drive.

After the court excused the jury for a lunch

recess, defense counsel moved for a mistrial, arguing that

the prosecutor had violated Fed. R. Crim. P. 16(a)(1)(A) and

the pre-trial discovery order, that Carron's credibility had

been irreparably damaged, and that he had been deprived of

the opportunity to prepare Carron with the statement or make

an informed decision whether to call him as a witness. The

prosecutor argued that he had no obligation to produce the

conversation under Fed. R. Crim P. 16(a)(1)(A) or the pre-

trial discovery order because it did not become relevant

until Carron testified inconsistently with it and it was not

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a wire intercept. The court ordered an evidentiary hearing

for the following day, and excused the jury until the

following Monday.

At the hearing on Friday, October 28, Agent

Brosnan, the FBI agent in charge of the case against Lanoue,

testified that on August 22, 1994, he requested and received

from the Wyatt Detention Center a cassette tape of a

conversation between Lanoue and Carron that took place on

August 20, 1994, which he had transcribed and provided to the

prosecutor. Agent Brosnan testified that, since Lanoue's

arrest and indictment and as part of his investigation of the

pending case, he had gone to the Wyatt Detention Center and

been permitted to listen to various tapes in an effort to

hear and obtain recordings of Lanoue's telephone

conversations with Carron, but that he found none. In April

of 1994, he requested that the facility keep track of all

calls made by Lanoue. He was told that it would be done by

spot checking, but was not notified of any of Lanoue's calls

other than that of August 20.3

In the August 20 conversation, Lanoue told Carron

that he had discovered during a recent hearing in his case

that Laraviere was the source of the government's

3. The primary purpose of the hearing was to resolve whether
the conversation was intercepted in violation of Title III.
Jennifer Egan, Chief of Programs at the Wyatt Detention
Center, also testified at the hearing, but only on issues
relevant to the defendant's Title III claim.

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information. Lanoue did not refer to Lariviere by name but

as "your friend, the millionaire," the informant from

Worcester, and the only person who could have provided

information about the Oldsmobile on December 17. He said

that Laraviere had not gone to jail as expected, advised

Carron to be careful of Laraviere, and asked Carron to visit

him in prison. Lanoue made statements about the Oldsmobile

such as, "They know all about the car, they know about

everything," "you know I bought that car," and "that car

there that I bought at American Motors."

At the conclusion of the evidentiary hearing, the

defense again argued for a mistrial. The government conceded

that it had violated Fed. R. Crim. P. 16, but argued that the

error was made in good faith and that the defense was not

prejudiced.

On the following Monday, October 31, the court

ruled that the prosecutor's violation of Fed. R. Crim. P.

16(a)(1)(A) did not warrant a mistrial or other remedial

action. In response to the defendant's request for a

curative instruction explicitly referring to the prosecutor's

questions of the previous Thursday, the court generally

instructed the jury that if counsel's questions "indicate

that a particular thing is so, you shouldn't accept that as

being established unless and until you hear evidence that the

thing is so."

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The third part of Carron's cross examination

ensued. Contrary to his representation that he would not

refer to the conversation again, the prosecutor again asked

Carron whether he had had any conversations about Laraviere

with Lanoue after Lanoue's arrest. The court overruled the

defendant's objection, and Carron again answered that he did

not recall. Carron again expressed fear that the prosecutor

was trying to make him perjure himself. He refused to answer

"yes" or "no" to questions concerning the events he had

testified to on direct examination -- that Lanoue wished to

purchase the car for his daughter, that Laraviere had

obtained the keys at the dealership, that they then took the

car for a test drive, and that he saw Lanoue give money to

Laraviere thereafter -- instead answering "evidently," "that

was my impression," "I assume so," "I don't recall," and "I

don't recall nothing." 2.Analysis

We review the trial court's handling of the

government's discovery violation for abuse of discretion.

United States v. Hodge-Balwing, 952 F.2d 607, 609 (1st Cir.

1991). In order to obtain a reversal on appeal, Lanoue must

show that the trial court abused its discretion in ruling on

the effect of the discovery violation. United States v.

Tajeddini, 996 F.2d 1278, 1287 (1st Cir. 1993). We will

order a new trial if the discovery violation caused prejudice

not cured by the trial court's remedy.

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The trial court found that no mistrial or other

remedy was warranted because: (1) the prosecutor acted in

good faith; (2) the purposes of Rule 16 were not subverted by

the withholding and use of the undisclosed evidence; and (3)

the defendant was not prejudiced. See United States v.

Gladney, 563 F.2d 491, 494-95 (1st Cir. 1977).

a. Did the prosecutor act in good

faith?

The court found that the prosecutor had made a good

faith error in judgment. Such a finding depends in large

measure on whether the prosecutor's explanation was credible

and is therefore entitled to considerable deference. United

States v. Levy-Cordero, 67 F.3d 1002, 1013 (1st Cir. 1995).

In this case, the prosecutor's explanations for withholding

the statement were both factual and legal. To the extent the

court relied on the reasonableness of the prosecutor's legal

arguments, we temper the usual deference accorded purely

factual findings. Cf. RCI Northeast Servs. Div. v. Boston

Edison Co., 822 F.2d 199, 203 (1st Cir. 1987) ("a finding of

fact predicated upon, or induced by, a misapprehension of law

is robbed of its customary vitality"). We conclude that the

trial court's finding of good faith was not supported by the

facts or the law.

First, the court gave weight to the fact that the

government had not received the statement until two months

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prior to trial. But because the government's obligation to

disclose the defendant's recorded statements is a continuing

one, Fed. R. Crim. P. 16(c), that was a factor militating

against rather than in favor of a finding of good faith. Cf.

Tajeddini, 996 F.2d at 1287 (no bad faith where prosecutor

was unaware of defendant's statement until the day before he

disclosed it to defense counsel three days before trial).

Instead of disclosing the statement as soon as he received it

from Agent Brosnan, two months prior to trial, the prosecutor

never disclosed it at any time before using it before the

jury. Second, the court thought that there was a

"colorable question" as to whether the statement had to be

produced because it was a "mixed statement" by the defendant

and a potential witness, so that the government only had an

obligation to produce the statement "to the extent it was a

statement of Mr. Lanoue." But this theory, even if

"colorable," does not explain the prosecutor's actions.

"[S]tatements discovered by means of electronic surveillance"

are within Rule 16(a)(1)(A). Fed. R. Crim. P. 16 advisory

committee's note. And the rule contains no exception for a

defendant's recorded statements on the basis that they

comprise one side of a conversation. The court's pre-trial

order required disclosure of any statements subject to

disclosure under Rule 16 and "[w]hether the government

counsel's file indicates that any wire or oral communications

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have been intercepted." Whether or not Carron's side of the

conversation was required to be disclosed under Rule 16, the

transcript in its entirety should have been disclosed for

purposes of determining its admissibility before trial. See

United States v. Latham, 874 F.2d 852, 864 (1st Cir. 1989)

(it was error for the government not to have provided

defendant with tape recordings containing conversations

between defendant and government witnesses). If the

prosecutor genuinely believed that Carron's side of the

conversation was not discoverable, the reasonable and only

permissible course would have been to seek redaction of

Carron's words.4 See Fed. R. Crim. P. 16(d)(1). Because

Rule 16 could not reasonably be read to allow the government

to withhold Lanoue's side of the conversation, the "mixed

statement" rationale did not support a finding of good faith.

Third, the court found that the prosecutor

genuinely believed that the statement was not relevant within

the meaning of Rule 16. The statement was relevant if it had

"any tendency to make the existence of any fact that [was] of

4. Nothing precluded disclosure of Carron's side of the
conversation. He was not a government witness, 18 U.S.C.
3500(a), and his side of the conversation was not grand jury
testimony. United States v. McMahon, 938 F.2d 1501, 1504-05

(1st Cir. 1991) (explaining rule that defense is not entitled
to the grand jury testimony of a defense witness until after
cross examination as being based on the need for grand jury
secrecy).

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consequence to the determination of the action more probable

or less probable than it would be without the evidence."

Fed. R. Evid. 401. Relevance is to be interpreted broadly in

the context of Rule 16(a)(1)(A). See Fed. R. Crim. P. 16

advisory committee's note (rejecting narrow interpretation of

defendant's right to discover own statements). The rule

gives a "defendant virtually an absolute right" to his own

recorded statements "in the absence of highly unusual

circumstances that would otherwise justify a protective

order." 2 C. Wright, Federal Practice and Procedure 253,

at 46-47 (1982) (internal citations and quotation marks

omitted). See also United States v. Bailleaux, 685 F.2d

1105, 1114 (9th Cir. 1982) (adopting broad interpretation of

relevance as applied to defendant's statements as a matter of

practicality); United States v. Haldeman, 559 F.2d 31, 74 n.

80 (D.C. Cir. 1976) (en banc) (disclosure of defendant's

statements is "practically a matter of right even without a

showing of materiality"), cert. denied, 431 U.S. 933 (1977).

The statement obviously was relevant. Lanoue made

statements about the Oldsmobile that were arguably both

inculpatory and exculpatory.5 He discussed the informant,

who was a potential government witness, and made statements

5. On appeal, Lanoue does not press his contention at trial
that the conversation was required to be disclosed as
exculpatory evidence.

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relevant to the defense theory that the government's case

rested on false information provided by that informant. See

United States v. Noriega, 764 F. Supp. 1480, 1494 (S.D. Fla.

1991) (conversations of defendant recorded in prison about

potential government witnesses were relevant within the

meaning of Rule 16(a)). Even assuming that the government

could not envision the statement's relevance before trial, it

certainly understood its relevance when defense counsel

outlined the defense theory in his opening statement.

The reasons proffered by the prosecutor in support

of his belief that the statement was not relevant -- that it

was obtained in a separate investigation of alleged witness

intimidation, that the conversation did not become relevant

until Carron testified inconsistently with it, and that he

did not expect Carron to testify about Laraviere -- were

without basis in fact or law.

Rule 16(a)(1)(A) contains no exception for a

defendant's recorded statements if they are obtained in

connection with a separate investigation, so long as they are

relevant to the pending case. "[A]cceptance of the language

for just what it says is dictated by the fundamental fairness

of granting the accused equal access to his own words, no

matter how the government came by them." United States v.

Caldwell, 543 F.2d 1333, 1353 (D.C. Cir. 1974), cert. denied,

423 U.S. 1087 (1976). Moreover, it appears that Agent

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Brosnan obtained the conversation in connection with his

investigation of the pending case. For at least six months

prior to trial, he had been attempting to obtain telephone

conversations between Lanoue and Carron as part of his

investigation of the case pending against Lanoue. The

prosecutor stated that he knew about and approved that

activity, and that immediately after obtaining the August 20

conversation, he subpoenaed Carron to testify against Lanoue

in the pending case. It is therefore difficult to credit the

"separate investigation" rationale. In any event, the

conversation contained Lanoue's statements that were relevant

to the charges pending against him and his defense to those

charges. Those statements therefore were required to be

disclosed by the plain terms of Rule 16.

As to the prosecutor's contention that the

conversation did not become relevant until Carron testified

inconsistently with it, the government's duty to disclose a

defendant's relevant recorded statements does not hinge on

whether or when the government uses the statement. Only an

oral statement to a known government agent is required to be

disclosed "if the government intends to use that statement at

trial." Fed. R. Crim. P. 16(a)(1)(A). But even that type of

statement is required to be disclosed regardless of whether

the government intends to introduce it in its case-in-chief,

use it for impeachment, or introduce it in rebuttal. See Fed.

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24

R. Crim. P. 16 advisory committee's note to 1991 amendment.

Rule 16(a)(1)(A) is unequivocal that the government "must

disclose . . . any relevant . . . recorded statements made by

the defendant." Even an illegally obtained inconsistent

statement of a defendant that can only be used to impeach him

(but not a defense witness), Harris v. New York, 401 U.S. 222

(1971); James v. Illinois, 493 U.S. 307, 313 (1990), must be

produced to him under Fed. R. Crim. P. 16(a)(1)(A). See,

e.g., United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975).

The government's theory that Lanoue's statements were not

relevant until a witness testified inconsistently with some

part of the conversation was therefore erroneous,

particularly where Carron was not cross examined about his

own statements, but about Lanoue's. See United States v.

Scafe, 822 F.2d 928, 935 (10th Cir. 1987) (government

violated Rule 16 by withholding defendant's letters and using

them to cross examine defense witness).

The prosecutor's representations that he did not

expect Carron to testify until the day before he testified,

and that even then he did not expect Carron to testify about

Laraviere's character, were irrelevant because, as explained,

Rule 16(a)(1)(A) requires the government to disclose the

defendant's recorded statements regardless of whether or when

it intends to use them. Moreover, it is difficult to credit

the government's representation. The recorded conversation

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25

itself and defense counsel's opening statement put the

government on notice that Carron would testify about

Laraviere.

Finally, the court noted that, although the

prosecutor could have tried to conceal the violation, he did

not. It is true that the prosecutor immediately admitted

that he held a transcript of the defendant's recorded

conversation in his hand and that he had not disclosed it,

and conceded the next day, with a myriad of excuses, that he

had violated Rule 16. We will not overlook a prosecutor's

failure to know or follow the discovery rules on the basis

that he did not try to hide the violation.

In any event, whether the prosecutor withheld the

defendant's statements in good faith or intentionally has

little to do with whether the court should have declared a

mistrial, since prosecutorial good faith could have no

mitigating effect on the prejudice flowing from the

violation. See United States v. Padrone, 406 F.2d 560 (2d

Cir. 1969) (granting new trial where inadvertent non-

disclosure of defendant's statement affected trial strategy).

b. Were the purposes of Rule 16
subverted?

Rule 16's mandatory discovery provisions were

designed to contribute to the fair and efficient

administration of justice by providing the defendant with

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26

sufficient information upon which to base an informed plea

and litigation strategy; by facilitating the raising of

objections to admissibility prior to trial; by minimizing the

undesirable effect of surprise at trial; and by contributing

to the accuracy of the fact-finding process. See United

States v. Alvarez, 987 F.2d 77, 84-86 (1st Cir. 1993), cert.

denied, U.S. , 114 S. Ct. 147 (1993); Fed. R. Crim. P.

16 advisory committee's note. The trial court found that the

government's discovery violation had not undermined the

purposes of Rule 16 because it did not cause the defendant to

unknowingly subject himself to impeachment;6 Rule 16 was not

intended to protect against surprising a witness with an

inconsistent statement; and it may have actually assisted the

accuracy of the fact-finding process by surprising the

witness.

All of these reasons miss the point because the

government cross examined Carron by referring to and reading

Lanoue's, and not Carron's, words. Lanoue had a right under

the Federal Rules of Criminal Procedure to discover his

recorded statements and to prepare for trial and devise a

defense strategy based on the evidence disclosed. Alvarez,

987 F.2d at 85. The court's reasoning that surprising a

witness with the defendant's statements promoted accuracy and

6. Lanoue testified after Carron, and therefore after the
discovery violation came to light.

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27

therefore militated against remedial action turns Rule 16 on

its head. Due to the nondisclosure, the defense was deprived

of the opportunity to refresh Carron's recollection and to

investigate the circumstances surrounding the conversation.

This unfairly surprised the defense and deprived it of the

opportunity to design an intelligent litigation strategy that

responded to the statement.

We also note that it is far from clear that the

cross examination assisted the accuracy of the trial. The

government opened its cross examination by accusing Carron of

threatening Laraviere. At sidebar the prosecutor stated that

Carron had threatened Laraviere, but proffered nothing to

support the accusation other than to say that the document

from which he read corroborated his questions. The

conversation contained no mention of threats. In it, Lanoue

told Carron that Laraviere was the informant, that his lawyer

was putting an investigator on Laraviere, that he should not

warn Laraviere, and that he should be wary of Laraviere. We

doubt that this was a sufficient basis for asking Carron

whether he had threatened Laraviere, and it plainly was an

insufficient basis for asking if he had ever threatened

anyone. Cf. United States v. Lilly, 983 F.2d 300, 306 (1st

Cir. 1992) (prosecutor's explanation for asking question was

plausible where he had in hand a judicial opinion finding

appellant was not a credible witness); United States v.

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28

Gomez-Pabon, 911 F.2d 847, 857 n.5 (1st Cir. 1990)

(expressing doubt that prosecutor's questions to defense

witness about whether he was under investigation for drug

smuggling were improper since the prosecutor volunteered to

call witnesses to attest to the foundation of the questions),

cert. denied, 498 U.S. 1074 (1991); United States v. Madrid

Ramirez, 535 F.2d 125, 129 (1st Cir. 1976) (appellant not

prejudiced by question to defense witness about prior offense

because it was based on an actual conviction). Carron

apparently was not charged with threatening Laraviere. The

government did not present evidence in its rebuttal case to

refute Carron's description of the FBI agents' visit in which

he said that the agents pressured him to testify against

Lanoue, not that they accused him of threatening Laraviere.

The government was free to show through admissible evidence

that its informant had been threatened, but it offered no

such evidence. Nonetheless, the jury may well have received

the impression from the prosecutor's improper questions that

Laraviere did not testify because Carron had threatened him.

If Lanoue's counsel had been able to refresh Carron's

recollection with the transcript of the conversation, the

jury would have been warranted in reaching the conclusion

that Laraviere did not testify because his testimony would

not have helped the government.

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29

The prosecutor's failure to disclose the

conversation at any time before using it also subverted Rule

16's purpose of facilitating the fair and efficient pre-trial

determination of the admissibility of Lanoue's statements.

Although an evidentiary hearing was held, it was not until

after the prosecutor had already used the statements before

the jury. Moreover, we think the hearing was unfairly

truncated due to the government's late disclosure. After

Agent Brosnan testified, defense counsel attempted to obtain

the presence of the Wyatt Detention Center employee who

provided Agent Brosnan with the conversation in order to

explore whether it was intercepted as a result of monitoring

directed specifically against Lanoue, which was relevant to

its admissibility under Title III. Ms. Egan, Director of

Programs at the facility, responded that the employee would

not attend the hearing because it was his day off. The court

refused the defendant's request for a recess during which the

prosecutor could convince Ms. Egan of the importance of the

employee's attendance. If the conversation had been

disclosed two months prior to trial when it should have been,

defense counsel could have obtained any necessary witnesses.

The incomplete mid-trial hearing necessitated by the

prosecutor's failure to disclose was neither fair nor

efficient.

c. Was Lanoue prejudiced?

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30

The court found that Lanoue had not been prejudiced

for the following reasons: although the government had done

an effective job of impeaching Carron, the statement played

little role in that process because it was peripheral to

Carron's testimony and the defense theory; Carron denied that

Lanoue made the statements; and the statements had not been

introduced into evidence.

The improper questions based on Lanoue's statements

were not peripheral to Carron's testimony and the defense.

At the close of the government's case-in-chief, the evidence

concerning the stolen vehicle charge was that the Oldsmobile

was reported stolen on December 21 and that Lanoue was

driving it on December 19 and again on December 23. The

defense, consisting of Lanoue's and Carron's testimony, was

that Lanoue had purchased the car from Laraviere, who had

represented that the car was his to sell and then falsely

informed the FBI that Lanoue was planning to steal the car in

order to obtain favorable treatment on pending theft charges.

If the jury believed that testimony, it would have had

grounds for acquitting Lanoue of the stolen vehicle charge.

A key element of the defense, argued in both

opening and closing, was that the informant upon whose

information the government's entire case rested did not

testify at trial. Indeed, the government clearly recognized

that Laraviere's absence and the implication that he had

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31

provided false information could defeat its case. The

government objected when the defense attempted to elicit the

informant's name and the exact information he had provided,

and urged the jury in closing argument to ignore Laraviere's

absence. Yet it offered no evidence to explain his absence,

other than the improper questions accusing Carron of

threatening Laraviere and insinuating that the threat stemmed

from a conversation with Lanoue. As the government intended,

these questions had a detrimental effect on a defense that

was otherwise uncontradicted. Cf. United States v. Lewis, 40

F.3d 1325, 1340 (1st Cir. 1994) (no prejudice to the defense

due to government's delayed fingerprint analysis because

there was ample evidence to refute and none to support the

defendant's theory that he was framed).

Lanoue also was prejudiced because the failure to

disclose his statements deprived him of the opportunity to

effectively prepare for trial and to design an intelligent

trial strategy. See Alvarez, 987 F.2d at 85; United States

v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S.

1218 (1984); Gladney, 563 F.2d at 494. If the conversation

had been disclosed two months before trial as it should have

been, Lanoue would have known that Agent Brosnan obtained it

in connection with a "separate investigation of witness

intimidation." Lanoue's counsel would then have been able to

investigate whether there was such an investigation and, if

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32

so, what came of it, enabling him to either prepare Carron

for cross examination on that subject or make an intelligent

decision not to call him as a witness.

Carron's denial that Lanoue made the statements

militates in favor of rather than against a finding of

prejudice because defense counsel was deprived of the

opportunity to refresh Carron's recollection about the

content of the conversation. See United States v. Rodriguez,

799 F.2d 649, 654 (11th Cir. 1986) (defendant's denial of the

existence of undisclosed items bolstered rather than weakened

his claim for a mistrial because it deprived him of the

opportunity to support the denial or refresh his

recollection, thus defeating purposes of the discovery

requirement). Carron answered "no," and then finally "I

don't remember that" to questions asking him if Lanoue had

made statements about Laraviere, while the prosecutor

referred to, read from, and brandished a document obviously

containing those statements. The defense should have been

able to refresh Carron's recollection about what Lanoue said

to him.

Furthermore, Carron was thoroughly unnerved by the

prosecutor's use of specific dates while referring to the

transcribed conversation. To be sure, he was uncertain about

specific dates and time frames throughout his testimony.

This may or may not have detracted from his overall

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33

credibility but when the prosecutor began to brandish the

transcript, it received a major blow. Thereafter, Carron

refused to directly answer any question concerning dates, and

eventually any question at all, expressing fear of being

trapped into committing perjury. If defense counsel had had

access to the transcript, he could have attempted to refresh

Carron's recollection. Failing that, he could have decided

not to call Carron as a witness at all. Instead, the

government was able to destroy, with the defendant's own

statements, the credibility of the only defense witness who

testified to the defense theory other than the defendant

himself.

That the statement was not actually introduced in

evidence does not show lack of prejudice. An improper

question alone can require a mistrial or other potent remedy

if it causes prejudice. See Rodriguez, 799 F.2d at 654

(district court erred in denying mistrial on the basis that

the undisclosed material was not introduced into evidence

where the government's use of the material in questioning

defendant was just as effective as if it had been

introduced); Padrone, 406 F.2d at 560 (although undisclosed

statement was not introduced, district court erred in failing

to grant mistrial where defendant's direct testimony was

inconsistent with the statement). Here, the government's

failure to disclose the conversation and its questions based

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34

on the conversation could well have led to the destruction of

Carron's credibility and undermined the defense theory. That

the conversation was not introduced in evidence did not erase

or mitigate the prejudice. d .
Did the trial court take appropriate action to cure
and prevent prejudice?

When a party fails to comply with Fed. R. Crim. P.

16, the court is empowered to order that party to comply with

the rule, grant a continuance, exclude the evidence, or enter

other just relief. Fed. R. Crim. P. 16(d)(2). What remedy

should be applied depends on the "seriousness of the

violation and the amount of prejudice to the defendant."

Gladney, 563 F.2d at 494. Here, the violation was serious

and likely to have caused serious prejudice. Because the

statement was not disclosed at any time before the government

used it, or in enough time that the defense could make use of

it, a mistrial was the only appropriate remedy. We do not

decide whether the court would have acted within its

discretion if it had taken more forceful measures than it

did, but we note that the court could have stricken the

questions, given an immediate and explicit curative

instruction, granted the defendant's request for a recess,

and even halted the cross examination and then allowed

redirect.

Moreover, the court did not act to prevent further

prejudice. Although the prosecutor had represented that he

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35

would not refer to the conversation again, he reminded the

jury of the statements he had read four days earlier by

asking Carron whether he had had any conversations about

Laraviere with the defendant after the defendant's arrest.

Defense counsel's objection was overruled, and Carron again

answered that he did not recall. By overruling the

objection, the court tacitly approved the improper question

in the jury's presence. See United States v. Manning, 23

F.3d 570, 575 (1st Cir. 1994). The government argues on

appeal that the trial court did not abuse its discretion

because it eventually gave Lanoue's counsel the opportunity

to review the statement with Carron to determine whether he

wished to recall him. The court ignored defense counsel's

immediate request for a recess and to be given the statement.

The court denied his request for a recess at the conclusion

of Carron's cross examination so that he could prepare him

for redirect. Instead, the court permitted Lanoue's counsel

to meet with Carron for the first time during a later recess

in the middle of Lanoue's direct testimony, ruling that he

could recall Carron to the witness stand if his reasons for

doing so were sufficient.

This is not a case of merely delayed disclosure

where "the critical inquiry is . . . whether the tardiness

prevented defense counsel from employing the material to good

effect." United States v. Osorio, 929 F.2d 753, 757 (1st

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36

Cir. 1991). The government's use of the conversation without

disclosing it at all precluded Lanoue's counsel from using it

to any effect. When he twice requested a recess in an

attempt to mitigate the harm already done, those requests

were denied. Cf. Hodge-Balwing, 952 F.2d at 609 (defendant

failed to show prejudice where court ordered the government

to hand over the case report before the witness testified and

defendant failed to seek a continuance); Hemmer, 729 F.2d at

13 (defendants failed to show prejudice where they received

reports, used them in their defense, and failed to seek a

continuance). We do not fault Lanoue's counsel for declining

to recall Carron at a point when he was in shambles as a

witness as the result of the government's violation of the

rules and the trial court's utter failure to send a message

to the witness, the jury or counsel that the government's

questions were improper.

Count V is vacated and remanded for a new trial

because Lanoue plainly was prejudiced in defending against

the stolen motor vehicle charge. There was no prejudice with

respect to Count VI because Carron's testimony did not touch

on whether Lanoue knowingly transported a firearm with an

obliterated serial number.

Although it is a more difficult question, we

believe that Lanoue also suffered prejudice as to Count I,

the conspiracy count. The jury was instructed that it could

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37

convict Lanoue of conspiracy if it found he conspired to

commit any one or more of six object offenses: (1)

interstate transportation of a stolen motor vehicle, 18

U.S.C. 2312; (2) possession of a stolen motor vehicle that

had crossed state boundaries, 18 U.S.C. 2313; (3)

interstate transportation of a firearm by a convicted felon,

18 U.S.C. 922(g)(1); (4) using or carrying a firearm during

and in relation to an attempt or conspiracy to commit

robbery, 18 U.S.C. 924(c)(1); (5) interstate possession of

a stolen firearm (referring to Meade's revolver), 18 U.S.C.

922(j); or (6) interstate transportation of a firearm with an

obliterated serial number (referring to Lanoue's revolver),

18 U.S.C. 922(k). The object offenses best supported by

the evidence were the two relating to the stolen Oldsmobile,

with respect to which Lanoue was prejudiced. Unless we can

conclude with fair assurance that the jury relied on one of

the other four objects, we must reverse the conspiracy

conviction. Cf. United States v. Morrow, 39 F.3d 1228, 1236

(1st Cir. 1994) (erroneously admitted evidence was harmless

where it was used to prove an object of the conspiracy to

which defendant was never tied and it was a "virtual

certainty" that jury convicted him for his involvement in the

other object offense), cert. denied, U.S. , 115 S. Ct.

1328 (1995).

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38

The evidence of a conspiracy to commit any of the

latter four object offenses was not overwhelming, and the

jury's verdicts give us little confidence that it relied on

any of them to find Lanoue guilty of conspiracy. The jury

necessarily rejected all of them as objects of an agreement

by Cole or Meade when it acquitted them of Count I. Although

we could not conclude from this that there was insufficient

evidence of a conspiracy, United States v. Bucuvalas, 909

F.2d 593, 597 (1st Cir. 1990), the question we address here

is not what a rational jury could conclude but "rather what

effect the error had or reasonably may be taken to have had

upon the jury's decision" in this case. Kotteakos v. United

States, 328 U.S. 750, 764 (1946).

The fourth object offense, using or carrying a

firearm during and in relation to a crime of violence, was

charged as a substantive offense in Count IV. The court

instructed the jury that it could find a defendant guilty of

Count IV if it found that he (1) committed either the Hobbs

Act attempted robbery or the Hobbs Act conspiracy to commit

robbery, and (2) knowingly used or carried a firearm during

or in relation to that crime or those crimes; or if it found

that he aided and abetted that offense. The jury found all

three defendants not guilty of using or carrying a firearm

during and in relation to an attempt or conspiracy to commit

robbery, and of aiding and abetting that offense; not guilty

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39

of Count II, the Hobbs Act conspiracy; and not guilty of

Count III, the Hobbs Act attempt, and of aiding and abetting

that offense. Under these circumstances, we think that the

jury necessarily rejected, as an object of the Count I

conspiracy, using or carrying a firearm during and in

relation to an attempt or conspiracy to commit robbery.7

The third and fifth object offenses, interstate

transportation of a firearm by a convicted felon (Lanoue),

and interstate possession of a stolen firearm (Meade's), were

not charged as substantive offenses against any of the

defendants. The sixth, interstate transportation of Lanoue's

firearm with an obliterated serial number, was charged as a

substantive offense in Count VI against Lanoue alone, and the

jury found him guilty of it, but there was no evidence that

any co-conspirator knew that the serial number was

obliterated.8 Given the dearth of evidence that Lanoue

conspired with anyone else who possessed the requisite

knowledge and intent to commit these offenses, and the fact

that the jury rejected each of them as a basis for a

7. Because the jury expressly acquitted Lanoue of violating
18 U.S.C. 924(c)(1), and necessarily rejected that offense
as an object of the Count I conspiracy, the Supreme Court's
recent definition of the "use" element of a violation of 18
U.S.C. 924(c)(1), Bailey v. United States, 64 U.S.L.W. 4039

(U.S. Dec. 6, 1995), is not implicated.

8. Indeed, the government does not argue on appeal that
there was sufficient evidence to support a conspiracy to
possess Meade's stolen firearm or Lanoue's firearm with an
obliterated serial number.

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40

conspiracy conviction against Cole and Meade, we think that

the likelihood is remote that the jury found that Lanoue

conspired with anyone else to commit them.

The object offenses best supported by the evidence

were the two relating to the stolen car. From what we can

glean of the jury's reasoning in this case, it is likely they

either rejected the other object offenses, or found a

conspiracy to transport a stolen car and did not attempt to

reach agreement on the other object offenses. We cannot

conclude that the erroneous use of Lanoue's statements did

not substantially sway the jury's conspiracy verdict,

Kotteakos, 328 U.S. at 765, and therefore vacate and remand

Count I for a new trial.

B. Title III
B. Title III

Lanoue objected to use of the conversation at trial

and seeks reversal on appeal on the additional ground that it

was intercepted in violation of Title III. Title III

prohibits, subject to certain exceptions, the interception of

telephone conversations in the absence of a court order. See

18 U.S.C. 2511(1), 2516. Neither the contents of an

intercepted telephone conversation nor any evidence derived

therefrom may be received in evidence, or used to impeach a

witness, if disclosure of that information would violate

Title III. 18 U.S.C. 2515. Title III's protections extend

to prisoners' conversations over institutional telephones.

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41

See, e.g., Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979);

United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987),

cert. denied, 485 U.S. 1021 (1988). Its prohibitions would

not apply in this case if a party to the conversation gave

prior consent to the interception, 18 U.S.C. 2511(2)(c), or

if the conversation was intercepted "by an investigative or

law enforcement officer in the ordinary course of his

duties." 18 U.S.C. 2510(5)(a)(ii).

After an evidentiary hearing, the trial court ruled

that the interception and use of Lanoue's conversation did

not violate Title III because he impliedly consented to the

interception.9 We need not decide this issue because we

vacate the convictions on Counts I and V on the basis of Rule

16. Moreover, because the factual record is undeveloped in

important respects, and the parties have not briefed or

argued certain relevant issues on appeal, we cannot decide

whether the conversation may be used at a new trial. But

because we are sufficiently concerned about whether the Wyatt

Detention Center intercepted Lanoue's conversation in

compliance with Title III, we offer the following guidance to

the judge presiding over the new trial.

The record reveals that the Wyatt Detention Center

is owned and operated by Cornell Cox Management, a private

9. The government did not contend that Carron consented to
the interception.

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42

corporation. Pursuant to an agreement with the United States

Marshal's office, it houses federal prisoners awaiting trial.

Neither the record facts nor the parties' briefs disclose

what regulations applied to or were followed by the Wyatt

Detention Center, but federal regulations require federal

prisons to establish procedures for monitoring inmate

telephone calls and to notify inmates of the monitoring

policy. 28 C.F.R. 540.102 (1995). The Federal Bureau of

Prisons requires notice to be posted at all monitored

telephones "advis[ing] the user that all conversations from

that telephone are subject to monitoring and that use of the

telephone constitutes consent to this monitoring," and

requires each inmate to sign an acknowledgement form stating

the same. Federal Bureau of Prisons Program Statement

5264.05 6 (April 25, 1994). Consent has been held properly

to have been implied when notice was given according to these

standards. See, e.g., Amen, 831 F.2d at 379. The record

indicates that Lanoue did not receive notice even approaching

these standards. Deficient notice will almost always defeat

a claim of implied consent. See Williams v. Poulos, 11 F.3d

271, 282 (1st Cir. 1993); Campiti, 611 F.2d 390, 393.

Keeping in mind that implied consent is not constructive

consent but "'consent in fact,'" consent might be implied in

spite of deficient notice, but only in a rare case where the

court can conclude with assurance "'from surrounding

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43

circumstances . . . that the [party] knowingly agreed to the

surveillance.'" Griggs-Ryan v. Smith, 904 F.2d 112, 116-17

(1st Cir. 1990) (quoting Amen, 831 F.2d at 378) (emphasis

supplied). We emphasize that "consent should not casually be

inferred," Griggs-Ryan, 904 F.2d at 117, particularly in a

case of deficient notice. The surrounding circumstances must

convincingly show that the party knew about and consented to

the interception in spite of the lack of formal notice or

deficient formal notice.

The trial court did not rely on the law enforcement

exception because the government offered no evidence or legal

authority to show that the employees of the Wyatt Detention

Center who intercepted Lanoue's conversation were "officer[s]

of the United States or of a State or political subdivision

thereof . . . empowered by law to conduct investigations of

or make arrests for offenses enumerated in [section 2516]."

18 U.S.C. 2510(7). If the government can establish that

the employees who intercepted Lanoue's conversation had the

requisite status and powers by law, they must also have been

acting in the ordinary course of duty when they did so.

The conversation was intercepted when it was heard

by someone other than Lanoue and Carron, whether by listening

as the conversation took place or by tape recording and

listening thereafter. See Deal v. Spears, 980 F.2d 1153,

1158 (8th Cir. 1992); George v. Carusone, 849 F. Supp. 159,

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44

163 (D. Conn. 1994). In Campiti, we held that the ordinary

course of duties exception did not apply where the

interception was done outside the usual routine and without

notice, was focused on Campiti, and was not reasonably

related to maintaining security at Walpole. 611 F.2d at 390,

392.10 As noted previously, the employee who located the

conversation and provided it to Agent Brosnan did not testify

at the hearing. If the call was intercepted to gather

evidence for Agent Brosnan's investigation, rather than for

prison security purposes, it was not done in the ordinary

course of duty.

If neither exception applies, the conversation may

not be offered in evidence or used to impeach any witness

other than Lanoue. According to the "impeachment" exception

allowing use of illegally intercepted communications to

impeach a testifying defendant (but not a witness), Lanoue's

statements in the conversation may be used for the limited

purpose of impeaching him on matters plainly within the scope

of his direct examination. Williams, 11 F.3d at 287 & n.35.

10. Again, the record does not disclose what regulations
applied to or were followed by the Wyatt Detention Center,
but federal regulations state that the purpose of inmate
telephone monitoring is "to preserve the security and orderly
management of the institution and to protect the public." 28
C.F.R. 540.102. "Requests for information (e.g.,
subpoenas) on monitored calls are to be directed to the
Regional Counsel." Federal Bureau of Prisons Program
Statement 5264.05 6 (April 25, 1994).

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C. Sufficiency of the Evidence
C. Sufficiency of the Evidence

Lanoue argues on appeal, as he did in his motion

for judgment of acquittal, that the evidence adduced at trial

was insufficient for the jury to have convicted him of

conspiracy (Count I) or interstate transportation of a

firearm with an obliterated serial number (Count VI). In

assessing a claim of insufficiency of the evidence, we

examine the record in the light most favorable to the

verdict, drawing all reasonable inferences and credibility

determinations in its favor, in an effort to ascertain

whether the proof would have allowed a rational jury to find

the defendant guilty beyond a reasonable doubt. See United

States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995).

1. Count I - Conspiracy

Lanoue argues that no rational jury could conclude

beyond a reasonable doubt that he conspired with anyone else

who possessed the requisite criminal intent, especially

because his co-defendants were acquitted. The government

argues that there was sufficient evidence from which the jury

could conclude that Lanoue conspired with Cole. The

government correctly argues that we cannot assume that the

acquittal of Lanoue's co-defendants reflects a failure of

proof rather than leniency or compromise, Bucuvalas, 909 F.2d

at 597, and Lanoue is correct that if we find the evidence of

conspiracy insufficient against the alleged co-conspirators,

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the evidence against him also would be insufficient. Id. at

596.

Our review of the record persuades us that the

trial court correctly ruled that there was sufficient

evidence from which the jury could conclude beyond a

reasonable doubt that Lanoue conspired with Cole to transport

a stolen automobile in interstate commerce and to possess a

stolen automobile that had crossed a state boundary.11 The

Oldsmobile was reported stolen on December 21. Lanoue and

Cole took it from Massachusetts to Rhode Island on December

19, and from Rhode Island to Massachusetts on December 23.

The jury was free to reject Lanoue's and Carron's testimony

that Lanoue purchased the car from Laraviere after Lariviere

represented that the car was his to sell. Because we hold

that the government's surprise use of the recorded

conversation erroneously interfered with that credibility

determination, Count I is required to be vacated.

Nonetheless, because the evidence was sufficient, a new trial

is not precluded. Having found sufficient evidence of a

conspiracy to transport and possess a stolen car, we need not

decide whether there was sufficient evidence of a conspiracy

11. We conclude, however, that the trial court was incorrect
in finding, alternatively, that there was sufficient evidence
that Lanoue conspired with Laraviere to transport a stolen
automobile in interstate commerce. The government adduced no
evidence and did not argue that Lanoue conspired with
Laraviere.

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to commit any other object offense. See Griffin v. United

States, 502 U.S. 46, 56-57 (1991) (guilty verdict on multiple

object conspiracy stands in the face of a claim of

insufficiency of the evidence as to one of the objects as

long as the evidence sufficiently supported an alternative

object).

2. Count VI - Interstate Transportation of a
Firearm with an Obliterated Serial Number

Lanoue was arrested with a Colt 38 caliber Police

Special revolver with an obliterated serial number tucked in

his waistband. He argues there was insufficient evidence

that he knew the serial number was obliterated, an essential

element of a violation of 18 U.S.C. 922(k). United States

v. De Leon Ruiz, 47 F.3d 452, 454 (1st Cir. 1995). Viewing

the evidence in the light most favorable to the verdict and

drawing all reasonable inferences and credibility judgments

in its favor, we conclude that there was sufficient evidence

from which a rational jury could conclude that Lanoue knew

the serial number was obliterated. Lanoue testified that he

carried the revolver fairly often to protect himself, and

acknowledged that he had cleaned the gun. When the

prosecutor showed him the gun and asked him if it was the gun

he carried, Lanoue replied, "Is the State Police on top of

the barrel. On top of the barrel . . . That's the one." He

denied that he had obliterated the serial number, but when

asked if he knew it was obliterated, Lanoue answered, "I

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never checked it, it's possible. But I never -- it doesn't

make no difference to me whether they wiped out or not. I

don't know anything about them anyway much." Under these

circumstances, a rational jury could conclude beyond a

reasonable doubt that Lanoue knew the serial number was

obliterated.

D. The Sentence
D. The Sentence

The Presentence Investigation Report ("PSR"), based

on the 1994 Guidelines, calculated Lanoue's adjusted offense

level as 28. The Guidelines provided an offense level of 24

for the firearms offense if it was not committed in

connection with "another felony," U.S.S.G. 2k2.1(a)(2), but

the PSR added 4 levels pursuant to U.S.S.G. 2k2.1(b)(5)

based on "information submitted by the government

indicat[ing] that the defendant was about to engage in the

robbery of a Meehan armored car." With an offense level of

28 and a criminal history category of VI, the imprisonment

range was 140 to 175 months. The PSR grouped the three

counts together pursuant to 3D1.2(b) and applied the

firearms offense level of 28 as the highest level of the

counts in the group.12 See U.S.S.G. 3D1.3(a).

12. The offense level for the stolen car count was 6,
consisting of a base offense level of 4 and an enhancement of
2 for the value of the Oldsmobile. See U.S.S.G. 2B1.1.

The offense level for the conspiracy count was that of the
substantive offenses. See 2X1.1.

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Lanoue objected to the 4-level enhancement, arguing

that he should not be sentenced on the basis of the robbery-

related crimes of which the jury had acquitted him, and that

the government had not proved those crimes by a preponderance

of the evidence. The court imposed the 4-level enhancement

on the basis that Lanoue used or possessed the firearm in

connection with the crimes of which the jury had acquitted

him -- conspiracy and attempt to commit robbery, and using or

carrying a firearm in connection with a conspiracy or attempt

to commit robbery.13 The court found that those crimes had

been proved by at least a preponderance of the evidence, and

expressed its direct disagreement with the jury's verdicts of

acquittal.14

The court sentenced Lanoue to 175 months, at the

maximum end of the range. Pursuant to U.S.S.G. 5G1.2(d),

13. The government had alternatively argued that
transportation of the stolen car could constitute the "other
felony." The court found that the "in connection with"
requirement was not satisfied with respect to that offense
because firearms are not inherently associated with that type
of offense and the firearm was not used to effect its
commission.

14. In addition to describing the facts upon which it based
its finding, the court stated:

I am at a loss to explain the Jury's
verdict on those three counts. It seemed
to me the evidence was overwhelming. The
Jury saw it differently . . . I just
don't know what the Jury concluded or why
it reached the conclusion that it did.

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because the statutory maximums were all below the range,15

the court imposed 60 months imprisonment on Count I, 115

months consecutive imprisonment on Count V, and 60 months

concurrent imprisonment on Count VI. Lanoue's sentence was

enhanced by 50 months based on the crimes of which he had

been acquitted, amounting to a 40% increase in his sentence.

Lanoue argues on appeal that we should take this

opportunity to reconsider our holding in United States v.

Mocciola, 891 F.2d 13 (1st Cir. 1989), permitting sentencing

on the basis of acquitted conduct, because it violates the

right to a jury trial and engenders disrespect for the law,

and alternatively that the trial court clearly erred in

finding that he had committed the robbery-related crimes by a

preponderance of the evidence. Lanoue's arguments are now

moot because only the conviction for transportation of a

firearm with an obliterated serial number stands, with a

statutory maximum of five years, well below the Guidelines

range of 100 to 125 months he would receive without the

enhancement.

Although it makes no difference in this case, we

believe that a defendant's Fifth and Sixth Amendment right to

have a jury determine his guilt beyond a reasonable doubt is

15. The conspiracy statute carries a five-year maximum;
interstate transportation of a stolen motor vehicle carries a
ten-year maximum; and interstate transportation of a firearm
with an obliterated serial number carries a five-year
maximum.

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trampled when he is imprisoned (for any length of time) on

the basis of conduct of which a jury has necessarily

acquitted him. Moreover, we believe that the Guidelines'

apparent requirement that courts sentence for acquitted

conduct utterly lacks the appearance of justice. This panel

urges the court to reconsider en banc the issue of acquitted

conduct when it is next squarely presented.

III. Conclusion
III. Conclusion

For the foregoing reasons, the judgments on Counts

I and V are vacated and those counts are remanded for a new

trial. The conviction on Count VI is affirmed. Because

Count VI is the only remaining conviction, the statutory

maximum of 60 months for violation of 18 U.S.C. 922(k) sets

the upper limit of the sentence. Because Lanoue's Guideline

sentence would be greater than 60 months with or without the

4-level enhancement, we order the sentence on Count VI to be

60 months imprisonment.

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