United States v. Smith

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1754

UNITED STATES,

Appellee,

v.

BRIAN SMITH,

Defendant, Appellant.

No. 95-1857

UNITED STATES,

Appellee,

v.

GERALD YANOVITCH,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Charles W. Rankin, with whom Rankin & Sultan were on brief for

appellant Brian Smith.

Michael C. Bourbeau for appellant Gerald Yanovitch.

George W. Vien, Assistant United States Attorney,

with whom Donald K. Stern, United States Attorney, Carole S. Schwartz

and Michael D. Ricciuti, Assistant United States Attorneys, were on

brief for appellee.

November 26, 1996

CAMPBELL, Senior Circuit Judge. CAMPBELL, Senior

Circuit Judge. A United States Grand Jury for the District

of Massachusetts returned an indictment charging defendants-

appellants Brian Smith ("Smith") and Gerald Yanovitch

("Yanovitch") with being felons-in-possession of a firearm

(Count One) and ammunition (Count Two), in violation of 18

U.S.C. 922(g) (1976 & Supp. 1996), 2 (1969). After a

five-day trial, a jury convicted the defendants-appellants on

both counts of the indictment. Prior to sentencing, the

district court, citing double jeopardy concerns, required the

government to elect between counts, and the government chose

to retain the conviction under Count Two. The district court

sentenced Smith to the statutory maximum of 120 months in

prison without supervised release or fine, and with a $50

assessment. The court sentenced Yanovitch to 78 months in

prison, with three years supervised release, no fine and a

$50 assessment. Both defendants filed timely notices of

appeal. We affirm.

I.

At approximately 8:00 to 8:30 p.m. on Friday,

December 2, 1994, Mark Duggan was in Charlestown,

Massachusetts to pick up a friend, Jonellen Ortiz. As Duggan

drove to the parking lot in the rear of Ortiz's apartment

building, he passed Smith. Duggan pulled his car into the

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parking lot and stopped. Through his rear view mirror,

Duggan saw Smith approaching his car from behind.

Smith and Duggan had had a prior confrontation in

Charlestown approximately two months earlier concerning a

woman, Colleen King, who was the mother of Smith's son and

Duggan's former girlfriend.

Duggan got out of the car, exchanged words with

Smith, who was thirty to forty feet away, and then reached

back into the car and retrieved a baseball bat. Smith

reached into his pants and pulled out a dark, small caliber,

semi-automatic handgun and showed it to Duggan. There was a

standoff, and Smith eventually left the area.

After the encounter with Duggan, Smith and King met

King's best friend, Melissa Brown, on a street in

Charlestown. Brown had known Smith for approximately five

years, and was the godmother of Smith's and King's son. The

three of them walked to a liquor store on Main Street in

Charlestown, where they purchased beer. They, then, went to

King's apartment, located in the same housing development in

which Ortiz lived.

Later in the evening, Yanovitch and his date,

Danielle Scanlon, arrived at King's apartment and joined the

others in drinking beer. All of them left King's apartment

and got into the large, dark-colored, four-door Lincoln Town

Car in which Yanovitch and Scanlon had arrived that evening.

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With Yanovitch driving, they traveled to a bar named "Kelly's

Cork and Bull" in South Boston. The group arrived between

11:30 p.m. and midnight, and stayed there about one and one-

half or two hours.

Near closing time, Smith and Yanovitch became

involved in a conversation with Robert Viens, Jr., Brown's

former boyfriend. Smith and Viens began to argue about a

gun, and the argument spilled into the street. Yanovitch,

King and Brown, as well as Viens's friend, Walter Veneau, and

the latter's girlfriend, Tammy Tetreault, followed them out

of the bar. Once outside, Yanovitch, King and Brown walked

over to their Lincoln, which was parked nearby.

Smith and Viens continued to argue outside the bar.

Smith said to Viens that he wanted to speak with him alone,

and the two of them walked down the street together away from

the bar. Smith, then, reached inside his jacket, and Viens

responded by throwing punches at Smith. The fight moved back

towards the Lincoln, as people tried to break it up. Veneau

pulled his friend Viens back from Smith as Smith was pulled

into the center of the Lincoln's back seat, with King on one

side of him and Scanlon on the other.

Yanovitch, who was still outside the Lincoln,

exchanged words with Viens, and then partially entered the

car through the driver's side door. From the back seat,

Smith handed a handgun to Yanovitch. Yanovitch got out of

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the car with the gun, proceeded to fire one round into the

ground, and then shot Viens. Viens ran and staggered up the

street away from Yanovitch. Yanovitch shot Viens again, and

Viens fell to the ground. From behind, Yanovitch closed on

Viens, pointed the gun at his head, and fired again.

Yanovitch, then, ran back to the Lincoln, got behind the

wheel and sped away with his friends.

After Yanovitch sped away, Veneau went to comfort

Viens, who was lying in the street. The Boston Police and

paramedics in an ambulance responded to the scene. The

paramedics found Viens alive, lying on his back in the

street. Viens had two small-caliber entry wounds and a third

small-caliber exit wound. One of the entry wounds was in his

left front chest, while the exit wound was in the right side

of his chest. Viens was uncooperative, refused to give his

name, and even told witnesses at the scene not to cooperate

with the police. The paramedics placed Viens in the

ambulance and took him to Boston City Hospital.

A friend drove Veneau to Boston City Hospital,

where he saw Viens's parents. Although he initially refused

to cooperate with the police, Veneau changed his mind after

speaking with Viens's father. Veneau, then, gave a tape

recorded interview to Boston Police Sergeant Detective James

Wyse.

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Without information from the victim or witnesses,

the police searched the area of the shooting, but initially

did not find any ballistics evidence. After speaking with

Veneau concerning the exact location of the shooting, police

officers returned to the crime scene and recovered two spent

.25 caliber shell casings. One of the casings was found

approximately fifteen to twenty-five feet from where Viens

was lying when the police and paramedics found him. The

other casing was recovered an additional ten to twenty feet

away from the first casing.

Smith and Yanovitch were arrested on the basis of a

complaint. On January 24, 1995, a grand jury returned an

indictment charging Smith and Yanovitch with being felons-in-

possession of a firearm (Count One) and ammunition (Count

Two), in violation of 18 U.S.C. 922(g) (1976 & Supp.

1996), 2 (1969). At trial, Smith and Yanovitch stipulated

that they were convicted felons at the time of the shooting.

The government called a paramedic, Michael

Sullivan, and two police officers, Wyse and Lieutenant Gary

French, who had responded to the scene. After speaking with

Veneau at Boston City Hospital, French returned to the crime

scene and recovered the two shell casings. The government

also called Alcohol, Tobacco and Firearms ("ATF") Special

Agent, Allan Offringa, who testified on direct examination

that the .25 caliber shell casings were manufactured outside

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Massachusetts, and that the only .25 caliber pistol

manufactured in that state was manufactured by a company

named Harrington and Richardson ("H & R"), which started

making the gun in 1909 and stopped doing so before World War

II. Boston Police Ballistician, Edward Szalno, testified

that the marks found on the spent shell casings were not made

by an H & R pistol.

The government obtained compulsion/immunity orders

for two of the women who were in the car with Smith and

Yanovitch. Although these women, Brown and Scanlon, claimed

that they did not see the shooting, they did confirm that

they were out with Smith, Yanovitch and King on the evening

in question, and that Yanovitch got into the driver's seat of

the car shortly after they heard gun shots. Both women also

confirmed that Smith was seated in the middle of the back

seat of the car. Duggan was called as a witness by the

government. He recounted his confrontation with Smith

earlier in the evening in question. Veneau and Tetreault

testified to having witnessed the shooting. They said that

the man in the middle of the back seat of the car handed

Yanovitch a gun, which the latter used to shoot Viens.

After the trial and conviction of Smith and

Yanovitch on both counts of the indictment, and the

government's election of Count Two, the court sentenced Smith

to the statutory maximum of 120 months in prison, and

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Yanovitch to 78 months in prison, with three years of

supervised release.

II.

On appeal, Smith presents a host of issues,

claiming errors at trial and in sentencing. As most of these

issues were not raised in the district court, they are

reviewable on appeal only for plain error. Yanovitch

challenges his sentence and says that he adopts by reference

any additional issues raised by Smith which could materially

affect his rights in this case.

A. The Nondisclosure of Test Results

At trial, Ballistician Edward Szalno testified that

the two shell casings that were recovered from the crime

scene were fired from a .25 caliber semi-automatic weapon,

but that the weapon was not a Harrington & Richardson ("H &

R") pistol. Since H & R is the only company that has ever

manufactured a .25 caliber semi-automatic weapon within the

state of Massachusetts, the effect of this testimony was to

indicate that the gun used had traveled in interstate

commerce. Prior to testifying, Szalno had test-fired an H &

R .25 caliber semi-automatic pistol, and had compared the

shell casings with those found at the crime scene. This

comparison confirmed his earlier conclusion that the casings

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recovered from the crime scene were not fired from an H & R

pistol.

Smith's counsel says he first became aware of this

test-firing during his cross-examination of Szalno. He,

then, moved to strike Szalno's testimony on the ground that

the government had violated its discovery obligations by

failing to inform the defense of the test. Counsel argued

that this discovery violation affected his cross-examination

and prejudiced Smith's defense. The court ruled that the

government should have provided defense counsel with the

observed results of the test-firing, even though no written

report had been generated. The court refused, however, to

strike Szalno's testimony, noting that defense counsel had

not sought a continuance to counter the evidence and had, in

effect, created the problem at hand by asking questions

without first determining the likely responses.

The provisions that might arguably have required

advance disclosure of the test-firing results are Rule 116.1

of the Local Rules of the United States District Court for

the District of Massachusetts and Federal Rule of Criminal

Procedure 16(a)(1)(D). The former states, in relevant part,

"The government shall disclose, and allow the defendant to

inspect, copy and photograph, all written materials as

follows: (3) . . . all scientific tests, experiments and

comparisons, or copies thereof, made in connection with a

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particular case." D. Mass. R. 116.1(a)(3). As the Local

Rule is expressly limited to written materials, of which none

were generated here, it was not violated.

The other proviso upon which Smith relies is

Federal Rule of Criminal Procedure 16(a)(1)(D), which does

not speak specifically of written materials only.1 However,

the words "inspect and copy or photograph" logically suggest

that the items to be disclosed be tangible enough to be

susceptible to inspection, copying or photographing. Fed. R.

Crim. P. 16(a)(1)(D); see also Fed. R. Crim. P. 16(a)(1)(A),

(C). Our circuit has expressly reserved decision on whether

Rule 16(a)(1)(D) requires the disclosure of unrecorded

personal observations of tests and the like. Compare United

States v. Veilleux, 40 F.3d 9 (1st Cir. 1994), with United

States v. Tejada, 886 F.2d 483 (1st Cir. 1989). Other

circuits, however, have held that such unrecorded information

is not covered by Rule 16(a)(1)(D). United States v. Shue,

766 F.2d 1122, 1135 (7th Cir. 1985) (the Rule does not

require disclosure of expert's oral statements made after

comparing photographs); United States v. Johnson, 713 F.2d

654, 659 (11th Cir. 1983) (where no report was prepared by

1. The relevant language of the Rule provides, "Upon request
of a defendant the government shall permit the defendant to
inspect and copy or photograph any results or reports
. . . of scientific tests or experiments, or copies therof,
which are within the possession, custody, or control of the
government . . . ."

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expert, no discovery obligation was incurred under the Rule).

See also United States v. Peters, 937 F.2d 1422, 1425 (9th

Cir. 1991) (similar language in Rule 16(b)(1)(B), "cannot

pertain to oral information"). We think the above decisions

of the Seventh, Eleventh and Ninth Circuits are consistent

with the plain language of Rule 16(a)(1)(D), and hold that

where the test result in question consisted of the expert's

unrecorded comparison of the test-firing casings with those

at the crime scene, Rule 16(a)(1)(D) did not obligate the

government to produce in advance the expert's conclusions.

This being so, we find no error in the court's refusal to

strike Szalno's testimony.2

While this ends the matter, we also agree with the

district court that there was a total absence of prejudice

from the nonproduction of the expert's observations following

the test-firing. Smith argues that, had he known about

Szalno's test-firing, he would not have cross-examined him in

the manner he did, to his detriment. However, before Szalno

took the stand, ATF Special Agent Offringa had already

testified that he had test-fired an H & R pistol, and that he

had given the casings to Szalno for a comparison. In

addition, Szalno himself testified on direct examination that

2. The arguments on this appeal do not involve the separate
requirements of Rule 16(a)(1)(E) on Expert Witnesses, which
requires the government, on the defendant's request, to
disclose a summary of the expert's opinions, the bases and
the reasons therefor.

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he had examined two cartridge cases that had been fired from

an H & R .25 caliber semi-automatic pistol and had made

reference to the FBI's General Rifle and Characteristics

book. Smith was, therefore, on notice prior to cross-

examination that Szalno had compared the casings from the

crime scene with others that were test-fired from an H & R

pistol. The test-firing of an H & R pistol was, moreover,

relevant only to the interstate element of the firearm

convictions, which the government later elected to dismiss.

The test-firing was irrelevant to the ammunition charges upon

which both Smith and Yanovitch were sentenced, it being

undisputed the casings had been manufactured in Arkansas. As

only the latter convictions stand, the claimed error would

have been harmless.

B. The Admissibility of Evidence Concerning Smith's

Possession of a Firearm Earlier on the Night in Question

Duggan testified that he had a confrontation with

Smith earlier on the evening in question, in which Smith

displayed a small, semi-automatic handgun. Smith contends

that such testimony was admitted in violation of Federal Rule

of Evidence 404(b) because it was evidence of a prior bad act

offered solely to prove Smith's propensity to use guns.3 For

3. Rule 404(b) provides: "Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that

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evidence of this sort to be admissible, it must be shown to

bear some special relevance to an aspect of the case at hand,

other than merely to the defendant's propensity to do bad

things. See United States v. Cortijo-Diaz, 875 F.2d 13, 15

(1st Cir. 1989). Here, Smith argues, the testimony lacked

such special relevance and was used by the government simply

as propensity evidence.

Smith did not, however, object at trial to Duggan's

testimony in this regard.4 Our review is, therefore, limited

to plain error. Under that standard, the burden falls on

appellants to show that there is an error, that the error is

clear or obvious, and that the error affected the outcome of

the proceedings below. United States v. Olano, 507 U.S. 725,

732-34 (1993). Because the challenged testimony was proper

evidence of the crimes charged, the court did not commit

error, much less plain error.

Far from merely relating to "other crimes, wrongs,

or acts," Fed. R. Evid. 404(b), Duggan's testimony helped

upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such evidence it
intends to introduce at trial." Fed. R. Evid. 404(b).

4. Smith had objected earlier to questions about
conversations Duggan might have had with Smith regarding
King, complaining that such conversations were irrelevant.
At sidebar, the government explained the relevance of such
testimony. Smith did not object thereafter. Neither did he
object to that portion of the government's closing argument
based upon Duggan's testimony.

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establish that Smith knowingly possessed a firearm (Count

One) and ammunition (Count Two), as required under 18 U.S.C.

922(g) (1976 & Supp. 1996). The decisions in United States

v. Diaz-Martinez, 71 F.3d 946 (1st Cir. 1995), and United

States v. Klein, 13 F.3d 1182 (8th Cir.), cert. denied, 114

S. Ct. 2722 (1994), are instructive. In Diaz-Martinez, the

defendant, who was charged with possession of firearms with

obliterated serial numbers in violation of 18 U.S.C. 922(k)

(1976 & Supp. 1996), was involved in a shootout immediately

before his arrest, at which time police recovered the

firearms. We dismissed defendant's argument that the

government improperly referred to the shootout in its closing

argument stating, "[B]ecause . . . the shootout was

integrally related to the evidence linking the guns to the

defendant (the possession charges), that evidence could not

have been barred by Rule 404(b)." Diaz-Martinez, 71 F.3d at

951 n.4. The Eighth Circuit reached the same conclusion in

Klein on comparable facts. Klein, 13 F.3d at 1184.

Even assuming that the possession charge related

only to the weapon with which Viens was shot, Duggan's

testimony that Smith was in possession of a similar handgun

earlier that evening tended to establish that Smith possessed

the same handgun a few hours later, at the time of the

shooting. The district court did not commit plain error in

admitting Duggan's testimony.

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C. The District Court's Control of Smith's Cross-

Examination

Smith argues on appeal that the district court

erroneously restricted his cross-examination of Duggan.

Duggan first informed police of his encounter with Smith

about two weeks before trial, after he had been taken into

custody on unrelated charges. Smith contends that he wanted

to establish on cross-examination that, at the time of his

testimony, Duggan had pending against him a number of

criminal charges. This line of questioning would have

enabled Smith to argue that Duggan had slanted his testimony

to gain better treatment from the government. Smith

complains that the district court severely limited his

ability in this regard.

A district court's discretion to control cross-

examination, while broad, is not unlimited. See United

States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996). However,

we find little indication that the court restricted cross-

examination in the asserted manner. Moreover, counsel did

not at the time complain to the court of being so limited,

hence we review only for plain error, Olano, 507 U.S. at 733-

34, a standard clearly not met on this record.

During the initial stages of cross-examination,

when counsel asked Duggan if he had cases pending against

him, the district court sustained the government's objection.

Defense counsel then asked whether the government had helped

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him with his pending cases. Duggan answered in the negative.

Later, counsel asked whether Duggan was aware that Ortiz had

filed a complaint against him for threatening her with bodily

harm. The government objected, and a sidebar followed.

During the sidebar, the district court stated, "Perhaps I was

precipitant." It allowed counsel to pursue the challenged

line of questioning. Duggan then conceded that he was aware

of Ortiz's complaint at the time he contacted the police.

After counsel finished questioning Duggan regarding Ortiz's

complaint, he did not proceed with similar questions relative

to other pending matters nor ask the court to allow him to do

so nor indicate that he felt unduly limited. We find no

merit in Smith's argument on appeal that the court improperly

restricted his cross-examination of Duggan.

D. Duggan's Prison Reference and its Impact on the Trial

Duggan mentioned during his direct examination that

King's "ex-boyfriend" had recently been released from prison,

an obvious reference, Smith says, to himself. Smith's

counsel promptly objected, and the court ordered the

challenged testimony struck.5 Smith's counsel did not ask

5. Duggan made the disputed reference during the following
exchange:
Q: And how did your relationship with [King]
develop?
A: Went on through the summer, the spring, and
the summer of '94 and stopped in October of
'94.
Q: And why did it stop on October of '94?
A: Her reason was, ah, that it was --

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for a mistrial at the time, but, on appeal, now argues that

the court erred in not declaring a mistrial sua sponte.

Absent a request for a mistrial, this court's

review of the court's failure to order a mistrial is for

plain error only. Olano, 507 U.S. at 733-34. Smith argues

that, since it was clear to the jury that Duggan was

referring to Smith as having been released from jail, the

response was so prejudicial as to necessitate a mistrial.

The district court, however, took some curative measures. It

sustained Smith's objection and struck Duggan's remark. As

counsel asked for no more at the time, the trial court could

reasonably assume that Smith was satisfied. The degree of

prejudice was neither so obvious nor so clear that only a

mistrial would have satisfied the needs of justice.

In United States v. Cresta, 825 F.2d 538 (1st Cir.

1987), this court laid out the factors that must be

Defense Counsel: Objection.
The Court: Sustained as to anything she
may have said.
Q: Without saying what she said, why did you stop
seeing her in October?
A: The relationship ended because her ex-

boyfriend got out of jail.

Defense Counsel: Objection.
The Court: The objection is sustained
and the answer is stricken. That's
something someone told you, right?
The witness: Yes, it would be, I guess.
The Court: Yes, its -- someone told you.
The witness can only testify to what they
know, not what people told them. The
answer is stricken; disregard it.

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considered in evaluating an otherwise improper reference to

an accused's prior imprisonment: whether the remark was

isolated, whether it was deliberate or accidental, whether

the trial court's instruction was sufficient to counteract

any prejudice that might have flowed from the remark, and

whether any remaining prejudice could affect the outcome of

the case. Cresta, 825 F.2d at 550. The remark in the

present case, as the government points out, was a single,

isolated and accidental reference by a witness trying to

answer a question designed to address defense counsel's

hearsay objection. Smith himself had already stipulated that

he was a convicted felon. The disputed remark added little,

therefore, to what the jury could already surmise. We do not

find plain error in the court's failure to order a mistrial

sua sponte.

E. The Questioning of Defense Witness Ortiz

On cross-examination, the government was allowed,

over Smith's unexplicated objection, to ask defense witness

Ortiz whether she had acted as a confidential informant for

the Drug Enforcement Administration ("DEA") and whether, as

such, she had helped the DEA obtain a search warrant for the

apartment of her friend, Colleen King. Smith now argues that

the district court should have excluded these questions

because they were irrelevant and because by implying that

Smith's girlfriend was the subject of a drug investigation

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they unduly prejudiced him and his case. Smith also asserts

that the district court erred in preventing him from

establishing that the DEA's subsequent search of King's

apartment yielded no evidence of illegal drugs. Eliciting

such evidence was relevant, Smith says, to undermine any

concerns about the credibility of the witness and to rebut

the prejudicial characterization of Smith and his girlfriend.

We do not find plain error.

One problem with these arguments is that Smith

never advised the district court of the reasons he now

advances on appeal for excluding the government's line of

inquiry. Federal Rule of Evidence 103 states that error may

not be grounded upon an evidentiary ruling "unless a

substantial right of the party is affected, and . . . [i]n

case the ruling is one admitting evidence, a timely objection

or motion to strike appears of record, stating the specific

ground of objection . . . ." Fed. R. Evid. 103(a)(1)

(emphasis added). Counsel had been informed in advance that

the government planned to cross-examine Ortiz concerning her

DEA connections, and while he objected, he did not argue that

the information was irrelevant nor did he claim prejudice

under Rule 403. And when the district court limited Smith's

redirect examination of Ortiz, Smith made no objection. Our

review, therefore, is only for plain error. Olano, 507 U.S.

at 733-34.

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The government contends that its cross-examination

was designed to impeach Ortiz, and not to smear Smith and

King.6 Ortiz denied that she had ever furnished information

to the DEA, the government did not implicate Smith during its

cross-examination of Ortiz, and the court instructed the jury

that counsel's questions did not constitute evidence. Even

assuming arguendo, it was error to allow the government to

cross-examine Ortiz as it did, we conclude the error caused

slight, if any, damage to Smith. The limitation of Smith's

redirect was likewise far short of plain error. The subject

matter was of border-line relevance, hence well within the

discretion of the court to control, see Fed. R. Evid. 401.

F. The Government's Closing Argument

Smith claims that the prosecution misstated the

evidence on four separate occasions in its closing argument.

These alleged misstatements, according to Smith, went to the

heart of the case, were not corrected by the district court

and, therefore, warrant the reversal of his conviction. The

challenged statements, and this court's reasons for rejecting

Smith's present claims, are set forth below.

6. The government says it sought to establish biases or
motives to lie on the part of Ortiz. To do so, the
government claimed that Ortiz and King had been in the drug
business together, that information provided by Ortiz to the
DEA contradicted her testimony at trial, and that Ortiz was
capable of duplicitousness (and, thus, of lying on the
stand).

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Smith concedes that he did not object at trial to

the challenged statements. Consequently, we review his

present claims under the plain error standard. Olano, 507

U.S. at 733-34. In so doing, we consider a number of

factors, "including the frequency and deliberateness of the

prosecutor's comments, the strength and clarity of the trial

judge's instructions, and the strength of the government's

case against the defendant." United States v. Morales-

Cartagena, 987 F.2d 849, 854 (1st Cir. 1993); see also United

States v. Tajeddini, 996 F.2d 1278, 1282 (1st Cir. 1993).

The first disputed statement, that Mark Duggan

testified that he saw Smith with a .22 or .25 caliber pistol

on the night in question, is the only characterization of

evidence that can be termed a misstatement. We do not find,

however, that the prosecutor's description strayed far enough

from Duggan's actual testimony, "a small caliber handgun," to

amount to plain error. However described, the small caliber

handgun mentioned in Duggan's testimony was consistent with

the .25 caliber casings recovered after the shooting. The

prosecutor's mistake was not so serious as to imply bad faith

or deliberate prevarication. Also, the case against Smith

was strong, and the court properly instructed the jury on the

effect of the lawyer's statements. The misstatement, such as

it was, fell well below the plain error threshold. See

Morales-Cartagena, 987 F.2d at 854-55.

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As for the three remaining challenged remarks,7 at

least two were amply supported by the record. Statement #2

rested on Veneau's testimony that the government protected

him and helped him move out of South Boston, and that he had

not gone to the police for fear of the defendants. Statement

#4 was a fair inference from the testimony of Boston Police

Lieutenant French. Statement #3 is more problematic but in

no way amounts to plain error. The government argues in its

brief that the prosecutor referred to the jury as having "sat

up there" and seen the witness's, Tetreault's, fear. If this

is what the prosecutor said, the remark was unexceptionable,

since the jury had observed Tetreault on the stand and could

determine whether or not she exhibited fear. The transcript,

however, indicates the prosecutor as actually having said

that "he sat up there" and saw fear in Tetreault's face. If

the "he" referred to Veneau, the comment was arguably

garbled, since by the time Veneau testified at the trial, he

had already retracted earlier misstatements to police that

Tetreault had been absent. But, even accepting the latter

7. Statement #2: The government stated that Walter Veneau
could not go back to South Boston after he testified.
Statement #3: The government stated that Walter Veneau
did not tell the police his girlfriend was at the scene of
the shooting because "he sat up there and saw the fear" on
her face.
Statement #4: The government stated that the police
found the shells where Walter Veneau told them the shooting
had taken place.

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version, the unobjected-to remark was harmless and fell far

short of constituting plain error.

G. The Meaning of "Ammunition"

Smith contends on appeal that the district court,

through certain unobjected-to instructions given to the jury

while the trial was in process, erroneously directed a

verdict in the government's favor on the elements of

ammunition and interstate commerce. According to Smith, the

district court wrongly told the jury that the casings which

were received into evidence were ammunition, and had traveled

in interstate commerce.8 Such instructions, according to the

defense, had the effect of directing the jury to find against

Smith on two essential elements of the offense. See United

States v. Argentine, 814 F.2d 783, 788-89 (1st Cir. 1987)

(quoting United States v. Natale, 526 F.2d 1160, 1167 (2d

Cir. 1975), cert. denied, 425 U.S. 950 (1976)). Smith, thus,

concludes that the district court committed plain error,

requiring the reversal of his conviction.

The district court made the challenged remarks in

the course of certain mid-trial comments to the jury

8. Smith challenges the following statements made by the
court in the course of remarks to the jury during the trial
relative to evidence on the cartridge casings: "Despite what
may have been raised in the opening statements to you, the
cartridge case, standing alone, is ammunition under federal
law. So the cartridge case originally was made out of state,
found its way into Massachusetts. Whether or not it was
reloaded, it still moved in interstate commerce."

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intended, among other things, to correct an earlier

misstatement by Yanovitch's counsel relative to the

definition of "ammunition." Counsel had stated that shell

casings were not ammunition, an assertion contrary to the

definition set forth in 18 U.S.C. 921(17)(A) (1996): "The

term 'ammunition' means ammunition or cartridge cases

. . . ." Before correcting counsel, the trial court

indicated to the jury that it was instructing them as to the

law, not as to the evidence. If counsel wished

clarification, he should have asked for it at the time. In

its final charge to the jury, the district court clearly

informed the jury of the government's burden to prove beyond

a reasonable doubt defendants' possession of ammunition and

of the movement of the ammunition in commerce, and gave

accurate, extensive and clear instructions on each of these

points. We do not find plain error.9

H. The Meaning of "In or Affecting Commerce"

Smith challenges the accuracy of the court's jury

instruction on the meaning of the phrase "in or affecting

commerce." As he did not object to the instruction, our

review is for plain error only. Olano, 507 U.S. at 733-34.

After considering the instruction, and the prevailing case

9. As noted previously, there was uncontested evidence that
the cartridge casings found at the scene were made in
Arkansas, permitting the inference that they had traveled
interstate.

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law, we conclude that the court did not commit error, plain

or otherwise.10

As part of its case, the government had to prove

that possession of the ammunition was "in or affecting

commerce." 18 U.S.C. 922(g)(1) (1976 & Supp. 1976). The

Supreme Court in Scarborough v. United States, 431 U.S. 563,

575 (1977), held that evidence showing that a weapon had

crossed state lines is legally sufficient to satisfy this

element of the statute. Smith, while not disputing the

above, contends that it should have been left solely to the

jury to decide whether the ammunition's crossing of state

lines could establish that possession was "in or affecting

commerce."

This argument runs counter to the principle that

the court, not the jury, is responsible for declaring the

law. Here, the court's instruction finds support in

10. The court instructed the jury as follows: "So the
government has to prove beyond a reasonable doubt that the
firearm, taking the firearm charge, and the ammunition,
taking the ammunition charge, was in commerce. That doesn't
mean that they have to prove Mr. Yanovitch or Mr. Smith
carried the items across a state line. But the government
does have to prove beyond a reasonable doubt that at some
time after the firearm or ammunition was manufactured, up
till the time when the person you're considering possessed
it, if you find that one or both of them did possess it, that
the item, the firearm, or ammunition, or both, were in
commerce, which means it went across a state line . . . ."

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Scarborough and in circuit precedents spawned by

Scarborough.11 The court properly instructed the jury on the

meaning of the phrase "in or affecting commerce."

Smith also claims that the court should have

required the jury to find a "substantial" effect on

interstate commerce, in light of the Supreme Court's recent

decision in United States v. Lopez, 115 S. Ct. 1624, 1629-30

(1995). In Lopez, the Court struck down the Gun-Free School

Zones Act, 18 U.S.C. 922(q) (Supp. 1996), which prohibited

a person from possessing a gun while in a "school zone," on

the grounds that it exceeded Congress's powers under the

Commerce Clause. Lopez, 115 S. Ct. at 1630-31. Smith

alleges that the Court's opinion in the Lopez case undermines

the proposition, stated in Scarborough and its progeny, that

Congress intended nothing more than a minimal contact with

interstate commerce. Consequently, Smith concludes that the

district court committed error when it failed to instruct the

jury that the government had the burden of proving that the

ammunition at issue substantially affected interstate

commerce.

11. United States v. Gillies, 851 F.2d 492, 494 (1st Cir.),

cert. denied, 488 U.S. 857 (1988); see also United States v.

Carter, 981 F.2d 645, 648 (2d Cir. 1992) (instruction that

"it is sufficient that the firearm allegedly possessed or
received by defendant had at some point previously travelled
across a state line" upheld in Section 922(g)(1) case), cert.

denied, 507 U.S. 1023 (1993).

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27

Smith's reliance on Lopez is misplaced. Unlike the

statute at issue in Lopez, Section 922(g)(1) (1976 & Supp.

1996) contains a specific jurisdictional element which

ensures, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce. Where,

as here, the jurisdictional element is present, the

government need only prove the minimal nexus to interstate

commerce identified in Scarborough. See Diaz-Martinez, 71

F.3d at 953. Smith's argument is without merit.

I. The Sufficiency of the Government's Evidence

Smith argues that his conviction rests on

insufficient evidence. In reviewing this claim, we must

determine whether, after viewing the evidence, and all

reasonable inferences drawn therefrom, in the light most

favorable to the government's case, a rational factfinder

could find, beyond a reasonable doubt, that the prosecution

has proved the essential elements of the offense. United

States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). In so

doing, this court defers to the jury as to all credibility

judgments, and need conclude only that the evidence, taken in

its entirety, supports a judgment of conviction. Id.

Because the evidence in this case was more than sufficient

under this standard, Smith's claims are without merit.

Smith argues that there was no evidence indicating

that he possessed a handgun on the evening in question, hence

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no proof that he possessed ammunition as well. Smith points

to the fact that, while Veneau and Tetreault both testified

that the man in the back seat handed an object to Yanovitch

and that the latter proceeded to shoot Viens, they did not go

so far as to state that Smith passed a firearm to Yanovitch.

However, the testimony of Veneau and Tetreault,

together with the reasonable inferences that can be drawn

therefrom and from the other evidence, is ample to establish

Smith's involvement. Veneau said that he never saw Brian

Smith with a gun, but that was because he did not know anyone

named Brian Smith. Veneau's assertion that the man in the

middle passed what Veneau believed to be a gun to Yanovitch,

when coupled with evidence that Smith was the man in the

middle, supports the conviction. Tetreault testified that

she did not recognize the object while it was being passed to

Yanovitch, but noted that she saw that it was a gun when

Yanovitch got out of the car with it. This testimony, in

conjunction with all the other evidence at hand, including

the subsequent shooting and Duggan's testimony that he had

seen Smith with a handgun earlier, was adequate to establish

Smith's guilt beyond a reasonable doubt.

J. Four-Level Increase in Smith's Guideline Sentencing

Range

On appeal, Smith challenges the factual findings

that served as the foundation for the four-level enhancement

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of his Guideline Sentencing Range ("GSR"). Since Smith's

counsel properly objected to these findings at the sentencing

hearing, this court's review is limited to clear error.

United States v. Powell, 50 F.3d 94, 102-03 (1st Cir. 1995).

Under the circumstances, "we ask only whether the court

clearly erred in finding that the government proved the

disputed fact by a preponderance of the evidence." Id. at

103. We hold that the factual findings were amply supported

on the record and that the court did not commit clear error

in assessing a four-level increase to Smith's GSR.

Smith alleges that the district court clearly erred

when it increased his GSR based upon its finding that he

transferred the firearm to Yanovitch in connection with

another felony offense. United States Sentencing Commission,

Guidelines Manual, 2K2.1(b)(5) (Nov. 1995).12 Smith claims

that the evidence presented at trial was insufficient,

especially as there was an absence of proof that Smith knew

that Yanovitch intended to use the gun to shoot Viens.

The evidence at trial was sufficient to show that

Smith and Viens became involved in a dispute about a firearm

at a Boston bar; that the two men left the bar together;

12. U.S.S.G. 2K2.1(b)(5) provides: "If the defendant
used or possessed any firearm or ammunition in connection
with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to
believe that it would be used in connection with another
felony offense, increase by 4 levels . . . ."

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that, when Smith reached inside his jacket, Viens punched

him; and that Smith was pulled into the back seat of the car,

from where he handed a gun to Yanovitch, who proceeded to

shoot Viens. From this, it was reasonable for the district

court to infer that Smith gave his handgun to Yanovitch

intending and expecting the latter to use it against Viens.13

As this was a reasonable and permissible interpretation, it

justified the four-level enhancement of Smith's GSR.

K. The Attachment of the Sentencing Hearing Transcripts to

Smith's Presentence Report

At the sentencing hearing, Smith asked the district

court to order deleted from the PSR reference to certain

state convictions. These convictions had been vacated prior

to the hearing, and, as a result, Smith no longer could be

sentenced as an armed career criminal, see 18 U.S.C.

924(e)(1) (Supp. 1996), although he could still be sentenced

as a felon-in-possession. The district court stated on the

record during the sentencing hearing that the challenged

convictions had been set aside and ordered the transcript

containing its remarks to be attached to the PSR as an

indication that these convictions were no longer valid.

13. The district court held as follows: "I rule on the
totality of the trial record . . . that the evidence is
sufficient to warrant a finding that when Mr. Smith passed
the weapon to Mr. Yanovitch, he well knew and he intended
that it be used to assault Mr. Viennes [sic]. Not any self-
defense, but in furtherance of the altercation. I find by a
fair preponderance of the evidence that that was precisely
what was in Mr. Smith's mind, and I add four levels . . . ."

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31

Deeming attachment of the transcript to be an adequate

corrective, the court refused to direct the probation officer

to revise the PSR itself.

Smith did not object to the court's procedure at

the time, but on appeal complains that the Bureau of Prisons

uses these PSRs to allocate the prison population among its

institutions and programs. According to Smith, the Bureau's

personnel is not likely to pay attention to the sentencing

hearing transcript. Consequently, Smith argues that he has

been unduly prejudiced by the district court's order. He

asks us to order proper corrections to be made to his PSR.

Federal Rule of Criminal Procedure 32(c)(1)

requires a sentencing court to address each relevant matter

in the PSR which is controverted by the parties.14 The court

must make either a finding or a determination that none is

necessary. Not intended as an "onerous" requirement, the

sentencing court's determinations "can be simply entered onto

a form which is then appended to the report." Advisory

Committee Notes to Fed. R. Crim. P. 32(c)(3)(D) (the

predecessor of Fed. R. Crim. P. 32(c)(1)), 1983 Amendments.

14. The relevant text of Rule 32(c)(1) is as follows: "For
each matter controverted, the court must make either a
finding on the allegation or a determination that no finding
is necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing. A
written record of these findings and determinations must be
appended to any copy of the presentence report made available
to the Bureau of Prisons." Fed. R. Crim. P. 32(c)(1).

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In United States v. Bruckman, 874 F.2d 57, 63-64

(1st Cir. 1989), this court noted that the purpose behind the

Rule's writing requirement is to protect the defendant's due

process rights and to provide the reviewing court with a

clear record of the disposition below. Smith does not here

complain that the district court mishandled or misread the

vacated convictions so as to sentence him improperly in this

case. Rather, he fears that appending the transcript, rather

than physically revising the PSR, is an insufficient way to

alert future prison authorities to the true status of the

prior convictions. Whether or not this is a realistic fear

we cannot say. Smith did not raise this concern before the

district judge, who was best situated to pass on it.

Precedent indicates that the appending of a hearing

transcript will comply with the Rule.15 If, in a particular

case, there are practical reasons to do more, we have no

doubt that the district court, if asked, would look into the

matter, with the help of the probation officer. As we say,

Smith did not raise the issue below; absent his having done

so, we can find no error cognizable on appeal. We add that

it is still not too late for Smith's concerns to be attended

15. See Bruckman, 874 F.2d at 65; see also United States v.

Santamaria, 788 F.2d 824, 829 (1st Cir. 1986) (citing United

States v. Castillo-Roman, 774 F.2d 1280, 1285 (5th Cir.

1985), for the proposition that appending the transcript of
the sentencing court's determinations satisfied the
requirements of the Rule).

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to administratively assuming they have any legitimacy,

which we cannot ascertain from the record before us by

simply appending a suitable notation to the PSR updating the

status of the prior convictions. Whether this or some other

measure is necessary we leave entirely to the appropriate

authorities.

L. Yanovitch's Sentence

Yanovitch challenges the factual findings made by

the district court as a basis for his sentence. We review

his claims for clear error. Powell, 50 F.3d at 102-03. We

are satisfied that the record below amply supports the

sentencing court's factual findings and that Yanovitch's

allegations are baseless.

Yanovitch contends that the evidence at trial was

insufficient to establish that he attempted to shoot Viens in

the head, and that he had the intent to kill him. If

anything, Yanovitch argues, the evidence at trial

demonstrated that he acted in the heat of passion and in the

absence of malice aforethought; there was no indication,

according to Yanovitch, that he had the necessary state of

mind for attempted murder. Nevertheless, the district court

found that Yanovitch's conduct conformed to the charge of

assault with intent to murder, and, based upon that finding,

sentenced him under U.S.S.G. 2A2.1. On appeal, Yanovitch

argues that a reasonable person would conclude that the

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incident in question was an aggravated assault or, at most,

an assault with an attempt to commit manslaughter, either of

which would require application of U.S.S.G. 2A2.2.16

Yanovitch's argument merits little discussion in

light of the evidence at trial which was also summarized in

his PSR, and the tape recording of Veneau's interview with

Boston Police.17 This evidence obviously supports the

sentencing court's determination that Yanovitch shot Viens

with the intent to kill him. The court did not clearly err

when it sentenced Yanovitch pursuant to U.S.S.G. 2A2.1.

Affirmed.

16. While 2A2.1 (Assault with Intent to Commit Murder;
Attempted Murder) has a base offense level of 22, 2A2.2
(Aggravated Assault) has a base offense level of 15.

17. The PSR stated, in relevant part: "Yanovitch got out of
the car, fired one round into the ground, then walked up to
Viens and shot at Viens at least twice, striking him once in
the abdomen and once in the upper thigh. Yanovitch then
pursued Viens up the street, put the gun 2 to 3 feet from
Viens' head, fired again, but missed."
Veneau stated, in pertinent part: " . . . when I
looking back I see Gerry Yanovitch 'bout three feet, two-and-
half feet behind Bobby [Viens] pointing a, something that
looks like a small calibre handgun towards Bobby's head, I
hear another one, bang. There's five shots, all together I
heard -- miss Bobby . . . ."

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