United States v. Bennett

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

No. 94-2260
UNITED STATES OF AMERICA,

Appellee,
v.

GEORGE H. BENNETT,
Defendant, Appellant.

No. 94-2300

UNITED STATES OF AMERICA,
Appellee,

v.
LIONEL LUSSIER,

Defendant, Appellant.

ERRATA SHEET

The opinion of this Court, issued on February 1, 1996, is amended
as follows:

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

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2260

UNITED STATES OF AMERICA,
Appellee,

v.
GEORGE H. BENNETT,

Defendant, Appellant.

No. 94-2300
UNITED STATES OF AMERICA,

Appellee,
v.

LIONEL LUSSIER,
Defendant, Appellant.

ERRATA SHEET

The opinion of this Court, issued on February 1, 1996, is amended
as follows:

On page 8, 3rd line of 2nd paragraph, insert a period after
"1986)" and delete "which appears pretty closely in point."

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2260
UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE H. BENNETT,

Defendant, Appellant.

No. 94-2300
UNITED STATES OF AMERICA,

Appellee,

v.

LIONEL LUSSIER,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and Saris,* District Judge.

Malcolm J. Barach for appellant Bennett.

William Maselli for appellant Lussier.

F. Mark Terison, Assistant United States Attorney, with whom Jay

P. McCloskey, United States Attorney, was on consolidated brief for

the United States.

February 1, 1996

*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge. George H. Bennett and Lionel

Lussier were each charged with conspiracy to possess

marijuana with intent to distribute, 21 U.S.C. 846;

carrying or using a firearm during and in relation to a drug

trafficking offense, 18 U.S.C. 924(c)(1); and unlawful

possession of a firearm by a convicted felon, 18 U.S.C.

922(g)(1). The charges stemmed from a bizarre March 1994

episode in which Bennett, Lussier, and Gary King, in an

attempt to avenge a previous drug-related attack and robbery

against mutual friend Ronald Madore, mistakenly entered the

wrong home and assaulted the occupants, ultimately shooting

one of them through the finger.

Madore and King were indicted for various offenses; both

pled guilty, cooperated with the prosecution, and testified

against Bennett and Lussier. After a five-day jury trial in

August 1994, Bennett and Lussier were convicted on all counts

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

In this consolidated appeal, Bennett and Lussier challenge

their convictions and sentences on many grounds. We address

the more colorable of these claims, setting forth pertinent

facts as necessary.

First. Both Bennett and Lussier challenge the

sufficiency of the evidence supporting conviction on each

count. Neither denies participating in the assault but they

dispute issues of intent and their precise role in the

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events. Our familiar task on review of sufficiency is to

consider the record as a whole and to determine, viewing the

evidence in the light most favorable to the verdict, whether

a rational jury could find guilt beyond a reasonable doubt.

United States v. Luciano-Mosquera, 63 F.3d 1142, 1149 (1st

Cir. 1995).

A conspiracy conviction can be supported by either

direct or circumstantial evidence of an illegal agreement--in

this case to possess marijuana with intent to distribute.

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

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

raid, Bennett, Lussier, and King, along with two other

friends, drank and discussed seeking revenge for a previous

attack in which mutual friend Ronald Madore, a small-time

marijuana dealer, was beaten and robbed of marijuana, money,

and guns. The group continued their drinking and their

discussion that evening at Madore's house.

Madore testified that Bennett, Lussier, and King planned

to beat up the man Madore suspected was behind the previous

attack, one Wayne Hathorne, take any marijuana he had (along

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

sell it and share the proceeds. King's testimony regarding

the plan was less definitive; he stated at one point that

they only intended to beat Hathorne, but elsewhere that both

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discussed stealing Hathorne's marijuana and giving it to

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

It is undisputed that shortly after this conversation

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

house in Bennett's car and drove to a trailer home, which

they mistakenly believed was Hathorne's. While Madore waited

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

terrorized occupants David Wing, Michelle Morin and their

children, physically assaulting Wing and Morin while a gun

was held to Wing's head. There was testimony, described

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

to bring a gun and that first King and then Lussier carried

the weapon.

Wing testified that during the attack all three men were

shouting "[w]here is our dope?"; Morin heard them shouting

about drugs but did not specify whether it was particular

individuals or all of them. Wing and Morin, who had no

drugs, tried to convince their assailants they had the wrong

house. These pleas were met with a threat to kill Wing. In

an ensuing struggle for the gun Wing was shot through the

finger. Bennett, Lussier and King immediately fled the scene

without taking anything.

Appellants now insist, as they argued to the jury, that

the plan was merely to beat Hathorne and did not include

seizing drugs, and that much of the testimony of Madore and

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King was false. But such credibility assessments are for the

jury and nothing here justifies disturbing the jury's

rational conclusion that Bennett and Lussier joined in a plan

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

to sell.

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

a gun during a drug crime, Lussier concedes the sufficiency

of the evidence against him, while Bennett maintains that

nothing showed that he had carried or used a gun in relation

to the marijuana conspiracy. But Bennett was also charged

with aiding and abetting the carry or use offense. Thus, his

conviction can be sustained under 18 U.S.C. 2 if Bennett

knew a firearm would be carried or used by a co-conspirator

in the drug trafficking offense and willingly took some

action to facilitate the carriage or use. Luciano-Mosquera,

63 F.3d at 1150.

At trial there was testimony that the gun used in the

attack was taken from a couch in Madore's house under

circumstances where Bennett could have seen it. Madore

testified that he told the other three they did not need a

gun, but each said he would rather take it. King held the

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

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

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

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have placed it in his waistband. It was his impression the

others were aware he had the gun.

From this evidence a jury could find that Bennett knew

that one of his companions was carrying the gun when they

committed the attack, and facilitation is essentially

undisputed since Bennett provided his car to transport

himself, his co-conspirators, and the gun to execute the

raid. In Luciano Mosquera, we upheld an abetting conviction

because the defendant provided a house for meeting where guns

were displayed and discussed, and later used during drug

trafficking crime. 63 F.3d at 1150. In sum, once knowledge

on the part of the aider and abettor is established, it does

not take much to satisfy the facilitation element.

With respect to adequacy of evidence on the felon-in-

possession charge, 18 U.S.C. 922(g)(1), Bennett and Lussier

make only the narrow claim that the evidence failed to

establish that the gun had travelled in interstate commerce,

the jurisdictional element of that offense. The gun was not

introduced into evidence since it had been discarded by King

and Madore. But from direct testimony the jury was entitled

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

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

Appellants argue that the gun could have been a replica

fashioned by an in-state gunsmith. This remote possibility

had only the most tenuous evidentiary support, namely, a

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witness or two said such a gun could be fabricated but at

significant cost. The overwhelming probability was that the

gun was authentic and had been transported--at some time--in

interstate commerce. Certainly the jury's conclusion that

the gun was genuine and had previously traveled in commerce

was not irrational. Cf. United States v. Kirvan, 997 F.2d

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

Second. Shortly into its deliberations, the jury

requested the testimony of victims Wing and Morin. The trial

judge conferred with counsel and then instructed the jury to

use their recollections, adding that he would provide the

requested testimony if the jury still found it necessary.

After further deliberations the jury asked for only the

direct testimony of Wing and Morin. Over defense objections,

the judge then had the direct testimony of Wing and Morin

read back to the jury. Immediately after the read-back, the

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

hear the cross or other testimony of the two witnesses; none

did. Defense counsel moved for a mistrial, which was denied.

The appellants concede that it would have been within

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

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

the direct examination was prejudicial--indeed,

unconstitutional--because the unread cross-examination

responses of both witnesses were at "striking variance" with

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their testimony on direct. No examples of such variances are

mentioned. No case law is provided to suggest that the jury

may not select what it wishes to hear.

The trial judge's decision whether or not to grant a

request to read back testimony requested by a jury is

reviewed for abuse of discretion, United States v. Akitoye,

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

equally true of the judge's decision whether the jury should

be made to hear additional, related testimony that the jury

made clear it did not need to rehear. Of course, such

discretion is not unlimited. And certainly the trial judge

should exercise great care when the testimony the defense

counsel wants the jury to hear is the cross-examination of

the very witnesses whose full direct testimony has just been

reread.

But no inflexible rule exists that the cross must always

be read. United States v. Wright-Barker, 784 F.2d 161, 174

(3d Cir. 1986). In plenty of cases, the direct testimony of

another witness might be far more relevant in assessing the

testimony of the witness whose testimony the jury requested.

Each case must be decided on its facts, and it is the

appellant's burden to show that the trial judge acted

unreasonably. Here on appeal, with ample leisure to compare

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

still made no specific showing as to why it was unfair in

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this case for the district court to omit cross-examination

that the jury did not want.

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

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

ourselves that the district court's action did not cause any

miscarriage of justice. We have found nothing to suggest

that the cross-examination was vital or contained more than

the customary measure of minor variations or inconsistencies.

Prior to requesting the read-backs, the jury could quite

reasonably have concluded that it credited these witnesses'

direct testimony--they had no reason to lie--and then sought

the read-back to refresh the jury's own recollection on some

specific points.

There is no merit in two other related claims of error.

Appellants now say that the jury was confused or bewildered

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

trial judge found otherwise. We have read the colloquy and

find no reason to doubt the trial judge's conclusion.

Appellants also say that the jury should have been cautioned

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

States v. DeSoto, 885 F.2d 354, 363 (7th Cir. 1989), but no

such request was made at trial.

Third. In closing, the prosecutor referred several

times, without objection, to the "selective focus" of the

defense. In rebuttal, the prosecutor described a defense

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argument as a "diversion" that "doesn't pass the laugh test"

and again referred to the defense's "selective focus."

Defense counsel immediately objected to the "diversion"

remark. After the summations, defense counsel requested a

curative instruction that the jury disregard these remarks to

the extent that they "degraded legitimate defenses." The

judge found the comments unobjectionable and gave only the

standard instruction that arguments of counsel are not

evidence.

Appellants now maintain that both of the prosecutor's

remarks improperly denigrated defense counsel as well as the

defense strategy. The prosecutor is expected to refrain from

impugning, directly or through implication, the integrity or

institutional role of defense counsel. United States v.

Boldt, 929 F.2d 35, 40 (1st Cir. 1991). But "selective

focus" remarks were part of a larger metaphor used by the

prosecutor in urging the jury to "act as a camera" and keep

"focused" on the evidence. In context, the remarks merely

echo the truism that lawyers highlight helpful facts and

retreat from unfavorable ones.

The prosecutor edged closer to trouble in his rebuttal

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

not "pass the laugh test." But summations in litigation

often have a rough and tumble quality; in fact, one of the

defense summations here twice referred to the government's

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"desperation" to prove charges "they can't prove." We do not

think that the prosecutor's remarks on this case crossed the

line. See generally United States v. Ortiz-Arrigoitia, 996

F.2d 436, 440-41 (1st Cir. 1993), cert. denied, 114 S. Ct.

1366 (1994). Nor was the refusal to give the specially

requested instruction reversible error; indeed, a jury would

not have made much sense of the requested language.

Fourth. At trial Bennett and Lussier sought access to a

police interview report with a government witness, Pete

McFarlane, a friend of the appellants who was with them

before and immediately after the attack. The interview

report, the defendants believed, might have some bearing on

McFarlane's testimony that Lussier admitted in the post-

attack meeting that he was holding the gun when Wing was

shot. Defendants urged that the interview report might be

discoverable under Fed. R. Crim. P. 16, the Jencks Act, 18

U.S.C. 3500, or Brady v. Maryland, 373 U.S. 83, 87 (1963).

The trial judge reviewed the report in camera and concluded

that it was not discoverable.

On appeal, all three bases for disclosure are urged.

Rule 16 does not apply since its pertinent language is

directed to statements made by a defendant to a known

government agent, United States v. Burns, 15 F.3d 211 (1st

Cir. 1994), and a statement by Lussier or any co-conspirator

to McFarlane immediately after the event is not even arguably

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in that category. Appellants suggest that Burns demands more

of the government than the bare minimum prescribed in the

rule; but that is not what Burns says. Compare 15 F.3d at

215-16 n. 2. The Jencks Act requires inter alia production

of writings that are "substantially verbatim" recitals of

pre-trial statements made by a government witness and that

relate to the subject of the witness' trial testimony. 18

U.S.C. 3500(e)(2). We have reviewed the interview report

at issue which contains only a few isolated direct quotations

(none pertinent here) and which is neither structured nor

phrased as a verbatim report. In our view the trial court

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

report as a substantially verbatim recordation of the

interviewee's own words. See United States v. Foley, 871

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

Lussier offers a clever gloss on the Jencks Act, urging

that any simple statement in an interview report--e.g.,

"Lussier held the gun"--must because of its brevity be

essentially verbatim and thus discoverable under the Act.

But this attempt to divide up the document has been rejected

even in the case of isolated direct quotations, Foley, 871

F.2d at 238-39. We note also that the report (a formal typed

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

United States v. Consolidated Packaging, 575 F.2d 117, 129

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

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The Brady claim is more difficult for the government

because the interview report does say that Lussier carried

the gun, but attributes that information to Bennett rather

than Lussier. The report might thus appear to have some

impeachment value, possibly qualifying it as Brady material

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

inference is pretty limited in this case: not only was the

meeting a confusing one but the interview report does not

exclude--and may even invite--the inference that Lussier

acquiesced in the suggestion that he had been carrying the

gun.

In all events, even if we assume that the report should

have been produced under Brady, the failure to do so was

harmless. At trial, both Bennett and King testified that

Lussier had held the gun; and while Bennett had a personal

interest in so testifying, King did not. Further, if

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

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

the gun. At the post-attack meeting, where Lussier was

present, Bennett had no reason to lie and good reason not to

do so.

Fifth. The last noteworthy issue concerns the aiding

and abetting instructions. Bennett and Lussier were charged

in both firearms counts--the possession and the use or carry

counts--both as principals and on an aiding and abetting

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theory under 18 U.S.C. 2. As to both gun offenses, Bennett

and Lussier say that the aiding and abetting instruction

permitted the jury to convict without the required scienter

(for example, even if the jury believed that the assistance

was unintentionally rendered).

On the possession count, the jury was told that a

defendant could be convicted if he "knowingly possessed the

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

language was used on the companion count ("knowingly used or

carried a firearm or aided and abetted the use or carrying a

firearm"). The appellants complain that the word "knowingly"

was not used immediately before "aided and abetted" in each

instance; but this is irrelevant because "aiding and

abetting" was separately defined in the instructions, which

must be read as a whole. United States v. Fontana, 948 F.2d

796, 801 (1st Cir. 1991).

In the aiding and abetting definition itself, the

district court charged in pertinent part that "the Government

must prove beyond a reasonable doubt that a defendant

associated himself with the venture, participated in it as

something that he wished to bring about, and sought by his

actions to make it succeed." This language obviously imports

a scienter element ("wished to bring about"; "sought by his

actions"), and it is the precise language approved by this

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court in prior cases. E.g., United States v. Loder, 23 F.3d

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

But our journey is not quite over. The Loder language,

which serves reasonably well in most situations, may not

perfectly cover abnormal ones. Here, a potential ambiguity

exists: the term "venture" in Loder is intended as catch-all

for the notion of a crime committed by another ("the

principal") for which the government aims to hold the

defendant responsible as an aider or abettor, making the

defendant "punishable as a principal." 18 U.S.C. 2. See

generally 1 Sand, et. al, Modern Federal Jury Instructions

para. 11.01 (1995). Where only a single crime is involved,

confusion is unlikely under Loder's language because there is

only one venture.

Here, however, the defendants were charged in the first

count with a drug possession conspiracy. In theory the term

"venture," used only as part of the general definition of

aiding and abetting, might lead a jury to think that the

venture in question was the drug conspiracy and not the

possession or use-and-carry offense. If so, the jury might

also think that it could convict the defendant who did not

personally possess or use or carry a gun, so long as the

aider or abettor "wished to bring about" the drug possession

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

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

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

Lopez, No. 94-2277, slip op. at 12 (1st Cir. Dec. 14, 1995),

but that a possible ambiguity inhered in the instruction.

The defendants made several timely objections to the aiding

and abetting instructions at trial, although their proposed

solutions were of questionable use. But any ambiguity in the

charge was irrelevant in Lussier's case (the only evidence,

obviously accepted by the jury, was that he was the

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

Given the evidence, Bennett could only have been

convicted as an aider and abettor. But--as already related--

Madore, who supplied the gun, testified that bringing it had

been discussed in advance and that Bennett, Lussier and King

all said they wanted it brought; King, who sat next to

Bennett in the car, testified that he carried the gun in his

lap without concealment for at least part of the ride.

Unlike Bennett, who claimed to have had no knowledge of the

gun, King and Madore were not on trial. If there was an

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

Appellants' remaining claims have been considered but do

not require discussion. In a few instances, Bennett has made

claims that are not fully developed, such as his cursory

attack on the intoxication instruction, or beyond our

jurisdiction (e.g., the refusal of a downward departure).

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Other claims made by appellants are properly presented but

seem to us hopeless on the facts (e.g., that perjured

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

section 922(g)(1) is unconstitutional). Scarborough v.

United States, 431 U.S. 563 (1977) (discussed in United

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

The case for appellants here has been well presented by

counsel, and we understand the practical pressure on lawyers-

-especially in criminal cases--to resolve doubts in favor of

including doubtful claims along with stronger ones. But

cases with difficult issues now crowd the dockets. At least

in opinion writing, the court's time is best reserved for

colorable claims. Cf. McIntosh v. Antonio, 71 F.3d 29, 37

(1st Cir. 1995).

Finally, Bennett moved earlier under Fed. R. App. P.

28(i) to incorporate Lussier's brief generally as to "those

facts, issues and arguments . . . that may inure to [his]

benefit" and to adopt particular arguments in Lussier's

brief. The motion, previously denied subject to

reconsideration, is effectively moot since none of Lussier's

claims have been accepted. But future counsel using Rule

28(i) should be aware of the need to connect the arguments

adopted with the specific facts pertaining to the movant.

United States v. Saccoccia, 58 F.3d 754, 763-64 (1st Cir.

1995).

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Affirmed.

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