United States v. Balsam

United States Court of Appeals
For the First Circuit
No. 98-1476
UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN BALSAM,

Defendant, Appellant.

No. 98-1477
UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH ZACKULAR,

Defendant, Appellant.

No. 98-1478
UNITED STATES OF AMERICA,

Appellee,

v.

TODD A. ARSENAULT,

Defendant, Appellant.

No. 98-1672
UNITED STATES OF AMERICA,

Appellee,

v.

THOMAS C. MEUSE,

Defendant, Appellant.
No. 98-1894
UNITED STATES OF AMERICA,

Appellee,

v.

JOHN MEUSE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Stahl, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Joseph S. Oteri, with whom Oteri, Weinberg & Lawson, Kimberly
Homan and Sheketoff & Homan were on brief for appellant Balsam.
Leo T. Sorokin, with whom Elizabeth L. Prevett was on brief
for appellant John Meuse.
Geraldine S. Hines, with whom Burnham & Hines was on brief for
appellant Zackular.
Douglas J. Beaton for appellant Thomas Meuse.
Kevin E. Sharkey, with whom Kenna, Johnston & Sharkey, P.A.
was on brief for appellant Arsenault.
Jonathan L. Marcus, Attorney, United States Department of
Justice, with whom Donald K. Stern, United States Attorney, Michael
J. Pelgro, Assistant United States Attorney, and Patrick Hamilton,
Assistant United States Attorney, were on brief for appellee.

February 11, 2000

2
 CYR, Senior Circuit Judge. In these consolidated

criminal appeals, Todd Arsenault, Stephen Balsam, John Meuse,

Thomas Meuse and Joseph Zackular seek to set aside their respective

convictions, and in certain instances the sentences imposed by the

district court, in connection with a rash of armed robberies

perpetrated in the Boston area during 1990. We affirm the district

court judgment in all respects.

I

BACKGROUND

While employed as an electrician at BayBank in Lynn,

Massachusetts in 1989, Thomas Meuse stole the bank’s blueprints.

Later, he recruited his friend James Ferguson, a convicted armed

robber, as well as several other accomplices, to rob the bank.

Meuse planned to cut a hole in the roof at night, through which

Ferguson could gain access. Once inside, Ferguson was to wait

until bank employees arrived for work the following morning,

threaten them with a gun, then force them to open the vaults.

On January 7, 1990, Meuse and Ferguson, along with other

accomplices, committed the BayBank robbery as planned and made away

with approximately $125,000. Over the next eleven months, the

group robbed fourteen other banks and business establishments in

the Boston area.1

1
These were: Somerset Savings Bank (2/90); a Stoneham jewelry
store (3/90); Malden Trust Company (3/90); Warren Five Cents
Savings Bank (4/90); Woburn BayBank (5/90); Lynn BayBank (5/90);

3
 Thomas Meuse participated in almost all the robberies

which took place prior to his arrest in August 1990. James

Ferguson participated in all the robberies. The remaining

appellants — John Meuse (Thomas Meuse’s brother), Todd Arsenault,

Stephen Balsam, and Joseph Zackular — joined the conspiracy later.2

Thomas Meuse was indicted in December 1994 on a single

count of aiding and abetting an armed bank robbery. See 18 U.S.C.

§ 2113(a), (d); id. § 2(a). Over the next six months, four

superseding indictments issued, adding various charges and

codefendants.3 Following further discovery and extensive pretrial-

motion practice, the forty-eight-day trial began in March 1997.

James Ferguson, a prime government witness whose

testimony spanned eight days, described the criminal activities of

Malden BayBank (5/90); East Boston Savings Bank (6/90); Depositors’
Trust Company (7/90); Lloyd’s Diamond & Gold (8/90); Gallahue’s
Market (9/90); Everett Cooperative Bank (9/90); Woburn BayBank
(10/90); and Capital Bank & Trust (11/90).
2
John Meuse joined in March 1990, Arsenault in May 1990,
Balsam in August 1990. Zackular’s involvement developed more
gradually: Ferguson used proceeds from the January 1990 robbery to
buy a car from a dealership owned by Zackular. Over the next
several months, the two became friends. Eventually, Ferguson
confided in Zackular that the money used to buy the car had been
stolen. At that time, Zackular advised Ferguson how to set up a
sham business to conceal the source of the stolen funds.
Eventually, Zackular asked if he could participate in the last two
robberies, which occurred during October and November 1990.
3
The additional charges included: conspiracy to commit armed
bank robbery, 18 U.S.C. § 371; armed bank robbery, id. § 2113;
using a firearm in a crime of violence, id. § 924(c)(1); and
conspiring to affect commerce by means of robbery, id. § 1951.

4
his codefendants in lurid detail. Notwithstanding the extensive

cross-examination of Ferguson by defense counsel, guilty verdicts

were returned against each defendant on multiple counts.4

II

DISCUSSION

A. The Speedy Trial Act Claim

Thomas Meuse claims that the trial was delayed for more

than seventy nonexcludable days in violation of the Speedy Trial

Act (STA). See 18 U.S.C. § 3161(c)(1). There was no reversible

error.5

On May 5, 1995, Thomas Meuse and the government submitted

a joint motion to continue the hearing on Meuse’s various pretrial

motions. The motion stipulated that the "[t]he government [was] in

the process of providing defense counsel with 79 transcripts of

recorded conversations as well as other discovery materials," and

that "[o]nce that process is complete, the parties will be in a

better position to agree on certain [discovery-related] matters and

to conduct a meaningful hearing before the Court." Through

4
Thomas Meuse was sentenced to 627 months; John Meuse 336;
Zackular 262; Balsam 204; Arsenault 60. Balsam, Zackular and
Arsenault were directed to pay restitution as well.
5
Normally, we would review factual findings relating to the
STA for clear error only, and legal rulings de novo. See United
States v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir. 1997). But
since the district court denied Thomas Meuse’s STA motion without
factual findings, we undertake plenary review. See United States
v. Barnes, 159 F.3d 4, 9-10 (1st Cir. 1998).

5
counsel, Meuse expressly agreed that the requested continuance

would “serve the ends of justice and that such action outweighs the

best interests of the public and the defendants in a speedy trial."

Although it allowed the continuance, the district court did not

simultaneously reschedule the hearing date. Ultimately, the

hearing took place on January 22, 1996 — 206 days after the fourth

superseding indictment had been filed.

The STA states that "interest of justice" continuances

are to be excluded in computing the maximum seventy-day STA time

period. See 18 U.S.C. § 3161(h)(8)(A).6 Based on our decision in

United States v. Barnes, 159 F.3d 4, 9-10 (1st Cir. 1998), Meuse

contends that open-ended continuances under section 3161(h)(8)(A)

should be strongly disfavored. Barnes is readily distinguishable,

however. There the district court had ordered a continuance on its

own motion, without defense counsel’s consent and with no

6
The STA states in pertinent part:

The following periods of delay shall be excluded in
computing the time within which an information or an
indictment must be filed, or in computing the time within
which the trial of any such offense must commence:
. . . .
Any period of delay resulting from a continuance
granted by any judge on his own motion or at the
request of the defendant or his counsel or at the
request of the attorney for the Government, if the
judge granted such continuance on the basis of his
findings that the ends of justice served by taking
such action outweigh the best interest of the
public and the defendant in a speedy trial.

18 U.S.C. § 3161(h)(8)(A).

6
explanation as to how the continuance would serve the interests of

justice. By contrast, Meuse consented to this continuance, and the

joint motion itself explained the grounds for the delay. See id.

at 13 (noting that the court need not articulate its explanation

for a continuance where the reasons are apparent, i.e., "set forth

in the motion papers"). Furthermore, the open-ended continuance

was granted because the parties suggested no date certain for

rescheduling the hearing. See United States v. Rush, 738 F.2d 497,

508 (1st Cir. 1984) ("[I]n some cases . . . a court is forced to

order an (h)(8) continuance without knowing exactly how long the

reasons supporting the continuance will remain valid.").

Meuse further contends that his former counsel rendered

ineffective assistance by endorsing the continuance. Meuse states

that he told his attorney at the outset to accept no continuance

because Meuse believed that the government had not yet gathered

sufficient evidence to convict. Although we normally decline to

address ineffective-assistance claims on direct appeal, see United

States v. Ademaj, 170 F.3d 58, 64 (1st Cir. 1999), the present

record is sufficiently developed to enable us to do so.

In order to demonstrate ineffective assistance, a

defendant must prove that defense counsel’s decision was (1) so

deficient that it did not come within the "wide range of reasonable

professional assistance," and (2) actually prejudiced the defense.

United States v. Ortiz, 146 F.3d 25, 27 (1st Cir. 1998) (citing

7
Strickland v. Washington, 466 U.S. 668, 689 (1984)).

8
 Notwithstanding the conclusory assertion that the

government lacked the evidence to convict, the record discloses

that on May 5, 1995 the government and the defense were engaged in

exchanging voluminous discovery materials — including dozens of

transcripts of incriminating tape-recorded conversations — in a

highly complex criminal case potentially involving multiple

defendants. Moreover, after Meuse dismissed his first attorney,

replacement counsel vigorously proceeded with various pretrial and

discovery motions. Based on the sheer volume of the discovery

materials disclosed by the government, Meuse’s attorneys would have

rendered less than effective assistance had they insisted on

proceeding to trial precipitously, without adequate opportunity to

review the strengths and weaknesses of the government’s evidence.

Furthermore, the present record does not demonstrate that

the 206-day delay prejudiced the Thomas Meuse defense. For one

thing, the defense relied heavily on the taped conversations to

impeach Ferguson, the prime prosecution witness. See, e.g., infra

Section II.H.7 There was no STA violation.

7
The attempt to attribute the entire 206-day delay to former
defense counsel’s consent is an exaggeration as well. On July 3,
1995, Meuse’s brother, John, filed his own pretrial motions. Since
Thomas and John were to be tried jointly, John’s motions would have
tolled Thomas’s STA period for the "reasonable period of delay"
required to dispose of John’s motions "promptly." See 18 U.S.C. §
3161(h)(7) & (h)(1). Thomas Meuse has not attempted to demonstrate
that the delay from July 1995 to January 1996 for hearing and
resolving John Meuse’s motions was not “reasonable.”

9
B. The Sealing of the Fourth Superseding Indictment

Thomas Meuse and Todd Arsenault contend that it was

improper to seal the fourth superseding indictment filed in June

1995 since the government did not disclose the reasons for doing

so, and further, that the government chose to seal the indictment

in order to gather additional evidence against the defendants, not

because it needed more time to arrest defendants. Finally, they

urge dismissal on the ground that only a properly sealed indictment

tolls the statute of limitations and the limitations period had

elapsed before the court unsealed the fourth superseding indictment

in February 1996.8

Criminal Rule 6(e)(4) provides:

The federal magistrate judge to whom an
indictment is returned may direct that the
indictment be kept secret until the defendant
is in custody or has been released pending
trial. Thereupon the clerk shall seal the
indictment and no person shall disclose the
return of the indictment except when necessary
for the issuance and execution of a warrant or
summons.

Fed. R. Crim. P. 6(e)(4). Rule 6(e) rests on the premise that

criminal defendants not yet in custody may elude arrest upon

learning of their indictment. Once the court sealed the fourth

superseding indictment in this case, arrest warrants were issued

against Arsenault, Balsam and Zackular, who had not yet been taken

8
We review de novo the district court ruling rejecting the
motion to dismiss the indictment. See United States v. Stokes, 124
F.3d 39, 42 (1st Cir. 1997).

10
into custody on the federal charges. Contrary to appellants’

contention, moreover, the government need not articulate its

reasons for requesting that an indictment be sealed, so long as its

request is based on a ground set forth in Rule 6(e). See, e.g.,

United States v. LaLiberte, 131 F.R.D. 20, 20-21 (D. Mass. 1990);

United States v. Maroun, 699 F. Supp. 5, 6-7 (D. Mass 1988).

Their further assertion — that the government utilized

the sealing procedure as a ruse — is meritless. Rule 6(e) does not

"forbid the sealing of an indictment for any reason other than

taking a defendant into custody . . . [but] a magistrate may grant

the government’s request . . . ‘for any legitimate prosecutorial

objective or where the public interest otherwise requires it.’"

United States v. Richard, 943 F.2d 115, 118 (1st Cir. 1991)

(citation omitted). In the present case, the government needed to

take steps to place cooperating defendant Ferguson in a witness

protection program during the summer of 1995. The protection of a

key prosecution witness undoubtedly qualifies as a legitimate

prosecutorial objective. See id. at 119 (citing with approval

United States v. Ramey, 791 F.2d 317, 318 (4th Cir. 1986)).

Nevertheless, appellants contend that the government

should have returned to court to inform the magistrate judge of its

new objective. Appellants cite no authority for their contention,

however, and the authority we have found is to the contrary. See

id. (finding "no authority for the implied proposition that the

11
government must return to the magistrate as each new reason for

continuing the sealing order arises"). Finally, appellants point

to no evidence that the ensuing seven-month delay was either

pretextual or unreasonable.9

We therefore affirm the refusal to dismiss the

indictment.

C. The Courtroom Seating Arrangements

Citing the small courtroom and the attendant security

concerns, the district court directed that the defendants be seated

in the front row of the spectator section, rather than beside their

respective counsel at the defense table. John Meuse claims that

the mandated seating arrangement prevented or restrained defendants

from exercising their Sixth Amendment right to communicate with

counsel at trial. Further, he argues that these arrangements

improperly undercut the presumption of innocence, as the jury may

have inferred from the isolated grouping of the defendants that

they must be conconspirators, as charged, and because the court

security officers rose to their feet each time defendants got up to

consult with counsel, thus perhaps intimating to the jury that

defendants posed a security risk. Finally, Meuse faults the

9
Although we need not opine on the matter at this time, we
note that the government’s decision to seal an indictment in order
to gather further evidence against a defendant has been held to
constitute a legitimate prosecutorial objective under Rule 6(e).
See Richard, 943 F.2d at 119 (citing United States v. Lakin, 875
F.2d 168, 170 (8th Cir. 1989)).

12
district court for failing even to consider the alternative seating

arrangement proposed by the defendants, which would have moved the

defense counsel table forward two or three feet, thereby enabling

the defendants to be seated in a row directly behind their

respective counsel.

As courtroom seating arrangements "depend[] upon such a

variety of factors, e.g., the size of the courtroom, the number of

spectators, the number of defendants and lawyers, acoustics,

security provisions, etc.," we will not disturb the trial court

decision for anything less than "a clearcut abuse of discretion."

United States v. Turkette, 656 F.2d 5, 10 (1st Cir. 1981); cf.

United States v. DeLuca, 137 F.3d 24, 34 (1st Cir. 1998) (noting

that, in light of courtroom security concerns, appellate court

normally defers to reasonable conditions for admitting trial

spectators). Appellants have not met their burden.

First, the district court ruled that its seating

arrangement was necessary due to the limited space available in the

small courtroom, and by the obvious security concerns which might

arise if ten people were to be seated at or behind the defense

table. Under the district court plan, moreover, the five

defendants were seated only four to five feet from the defense

table, in the front row of the spectator section. The trial judge

also assured the defendants that they could consult freely with

their attorneys as they wished, either by walking the short

13
distance to the defense table, or passing written notes. See

United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984)

(finding that arrangement caused no hindrance in communications).

Thus, in practical terms the seating arrangement imposed no

significant impediment upon defendants’ Sixth Amendment right to

consult with trial counsel.

Nor is it apparent that defendants sustained any other

significant or unwarranted prejudice. The front row in the

spectator section is not an inherently prejudicial location for

seating criminal defendants. See Turkette, 656 F.2d at 10.

Furthermore, it is by no means clear that seating the defendants as

a group directly behind the defense table, as they proposed, would

have lessened any slim chance that the jury would draw an improper

inference of guilt by association. Moreover, their proposal

presented logistical problems, as it required that ten persons be

seated in a cramped area, which would block one of the gates in the

bar rail and require that all witnesses be rerouted through the

remaining gate.

Finally, their characterization of the court security

officers’ movements — as "defensive" — is subjective and

conclusory. The record in no way suggests that the security

officers’ actions were either so dramatic or unusual as to

influence the jury unduly.

We therefore discern no clearcut abuse of discretion in

14
the district court ruling. See id. at 10.10

D. The Sufficiency of the Evidence

Thomas Meuse claims that the government adduced

insufficient evidence that he knew Ferguson would use a gun during

their armed robbery of the Somerset Savings Bank on February 10,

1990, and that this court must therefore reverse his conviction for

aiding and abetting Ferguson in the use of a firearm during that

robbery. See 18 U.S.C. § 924(c)(1). More particularly, Meuse

argues that although he and Ferguson did discuss the need to use a

firearm for the Lynn BayBank robbery in January 1990, they did not

do so in regard to the Somerset Savings Bank robbery, in which a

significantly different modus operandi was employed.

In order to convict Meuse of aiding and abetting, it was

necessary for the government to prove that he knew to a "practical

certainty," United States v. Spinney, 65 F.3d 231, 238 (1st Cir.

1995), that Ferguson would use a gun in the Somerset Savings Bank

robbery. The government did so.11

First, Meuse exaggerates the dissimilarities in the modi

10
There is no conclusive evidence that the district court
declined to consider the alternative seating arrangement.
Moreover, the defense motion was filed before the district court
ruled. Finally, defendants never suggested below that the court
had overlooked their motion.
11
Viewing the evidence in the light most favorable to the
verdict, we assess its sufficiency de novo to determine whether a
rational jury could find each element of the charged offense beyond
a reasonable doubt. See United States v. Guerrero, 114 F.3d 332,
339 (1st Cir. 1997).

15
operandi employed in the two robberies. He planned and instigated

these robberies because he had worked inside both banks, as an

electrician, and was familiar with their layouts and security

systems. In discussions with Ferguson prior to the first robbery,

Meuse proposed to bypass the security systems by cutting through

the bank’s roof. He suggested that Ferguson be lowered into the

bank to await the early arrival of bank employees, whom Ferguson

was to threaten with a weapon in order to gain access to the

vaults. Afterward, Ferguson was to flee in a getaway car manned by

Meuse and their accomplices. The same essential elements were

utilized in the first two robberies, as well as in several later

robberies. Although Ferguson did not testify that he and Meuse

again spoke about using a gun immediately prior to the second

robbery, the very absence of any such discussion on the second

occasion fairly invited a rational jury inference that the second

bank robbery was to be conducted in essentially the same manner,

including the intimidation of bank employees with a gun,

successfully employed in the first robbery.

There was other evidence as well from which the jury

rationally could find that Meuse himself carried the gun to the

second bank robbery. Ferguson testified that, following the first

robbery, he gave Meuse the gym bag which contained not only

Ferguson’s 9mm semiautomatic pistol but also the tools Meuse had

used to cut a hole in the Lynn BayBank roof. Meuse took the bag

16
home with him; then, as Ferguson testified, Meuse carried it to the

second robbery. Thus, the jury rationally could infer that upon

opening the gym bag to retrieve the cutting tools needed to

penetrate the Somerset Bank roof, Meuse would have seen the gun.

Moreover, Ferguson testified that he used the same weapon in both

robberies.

Therefore, viewed in the light most favorable to the

verdict, see Guerrero, 114 F.3d at 339, the evidence supported a

rational inference that Meuse knew to a “practical certainty” that

Ferguson would use a gun in the second robbery.

E. The Guilty Plea Colloquy

Thomas Meuse next contends that the district court erred

in admitting into evidence the state-court plea colloquy which took

place at the time he pled guilty to charges arising out of his

abortive August 1990 robbery of Lloyd’s Diamond & Gold. Citing Old

Chief v. United States, 519 U.S. 172 (1997), Meuse contends that

his agreement to stipulate to this earlier guilty plea barred the

government from adducing any further evidence about either the

prior conviction or the underlying robbery.

Evidentiary rulings under Federal Rule of Evidence 403

are reviewed only for abuse of discretion. See United States v.

Tse, 135 F.3d 200, 208 (1st Cir. 1998). In his state-court plea

colloquy, Meuse admitted that he and Sean Cote had used burglary

tools in an attempt to cut through the Lloyd’s Jewelry Store roof,

17
and when detected by police, had fired on the police while

attempting unsuccessfully to escape in a stolen car. Meuse pled

guilty to attempted breaking and entering, assault with a dangerous

weapon, and unlawful possession of an electric weapon (stun gun),

burglary tools, and a stolen vehicle. As this abortive robbery was

also the subject matter of the Hobbs Act conspiracy count charged

in the federal indictment against Meuse, the plea colloquy clearly

was admissible as an admission probative of his guilt on the Hobbs

Act count. See United States v. De Leon Ruiz, 47 F.3d 452, 455 (1st

Cir. 1995); Fed. R. Evid. 801(d)(2). Thus, reliance on Old Chief

was misplaced, since the government in that case had charged the

defendant with possession of a firearm by a convicted felon. See

18 U.S.C. § 922(g)(1). The Supreme Court therefore held that the

government must accept the defendant’s offer to stipulate to the

fact of the prior conviction, but could not adduce evidentiary

details of the underlying crime. See Old Chief, 519 U.S. at 177,

190 ("[T]he fact of the qualifying [prior felony] conviction is

alone what matters under [18 U.S.C. § 922(g)(1)]."). However, the

bases for the Supreme Court ruling were (i) that “proof of the

defendant’s [felon] status goes to an element entirely outside the

natural sequence of what the defendant is charged with thinking and

doing to commit the current offense [viz., possessing the

firearm],” id. at 191, and (ii) that the defendant’s proffered

stipulation was fully adequate to prove his felon status, whereas

18
a jury informed that defendant previously committed a serious

assault might infer that he had a “bad character,” and this

evidence of propensity would cause defendant “unfair prejudice”

under Federal Rule of Evidence 403, id. at 180-86.

19
 In contrast, however, "the prosecutor’s choice [not to

accept a defendant’s stipulation] will generally survive a Rule 403

analysis when a defendant seeks to force the substitution of an

admission for evidence creating a coherent narrative of his

thoughts and actions in perpetrating the offense for which he is

being tried." Id. at 192. The Meuse plea colloquy plainly fit the

latter mold, for in it he described conduct specifically charged in

the federal indictment; i.e., his August 1990 armed robbery. We

discern no abuse of discretion.

F. The Rule 404(b) Objections

Joseph Zackular and John Meuse challenge various

evidentiary rulings pursuant to Federal Rules of Evidence 403 and

404(b).12 These rulings are reviewed for abuse of discretion only.

See United States v. Mangual-Corchado, 139 F.3d 34, 43 n.22 (1st

Cir. 1998).

Prior to trial, Zackular submitted a motion in limine

announcing his intention to cross-examine Ferguson to expose his

12
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 . . . .

Fed. R. Evid. 404(b).

20
personal bias against Zackular; specifically, that following his

arrest Ferguson had attempted to have Zackular murdered. Citing

Federal Rule of Evidence 403, Zackular contended that the

government should not be allowed to introduce evidence as to the

basis for Ferguson’s animus; i.e., that Ferguson mistakenly

believed that Zackular, who had been under indictment for unrelated

federal extortion charges in 1990, had implicated Ferguson in the

robberies which took place in 1990 in order to obtain favorable

treatment from the government in Zackular’s extortion case. In

November 1990, Zackular pled guilty to conspiring to transmit

threats in interstate commerce. Ferguson was arrested in December

1990.

Although the district court did not permit the government

to establish that Zackular had been convicted of extortion, the

government was allowed to introduce evidence that a criminal case

was pending against Zackular in 1990. The district court

determined that the probative value of this limited proof — i.e.,

providing the jury with the "complete story" relating to Ferguson’s

alleged bias — substantially outweighed any danger of unfair

prejudice.

Contrary to Zackular’s claim, no per se rule bars the

government’s introduction of evidence clearly relevant to a jury’s

21
assessment of a government witness’s bias.13 Absent any explanation

for Ferguson’s animus toward Zackular, the jury might be misled to

conclude that Ferguson’s feelings were irrational or arbitrary.

See, e.g., United States v. Robinson, 530 F.2d 1076, 1079 (D.C.

Cir. 1976) ("[T]he trier [of fact] must be sufficiently informed of

the underlying relationships, circumstances and influences

operating on a witness so that, in light of his experience, he can

determine whether a mutation in testimony could reasonably be

expected as a probable human reaction.") (citation omitted). Since

the district court substantially dampened the prejudicial effect of

the evidence by not allowing the government to demonstrate that

Zackular had been convicted of extortion, we cannot conclude that

it abused its discretion in drawing the Rule 403 balance as it did.

See United States v. Aguilar-Aranceta, 58 F.3d 796, 800 (1st Cir.

1995) (noting that appellate courts rarely disturb a “debatable”

Rule 403 determination).14

13
The government points out as well that this evidence was
relevant for purposes other than witness bias. For example, the
evidence corroborated the Ferguson testimony that Zackular had
asked to become directly involved in the final robberies in 1990 in
order to get money to pay for his defense in the extortion case.
We may affirm the district court on any ground apparent from the
record. See United States v. Awon, 135 F.3d 96, 99 (1st Cir.
1998).
14
For the same reasons, we find no abuse of discretion in
admitting the evidence that Zackular was required, as a condition
of his pretrial release on the extortion charges, to call his
pretrial services officer twice a week. This evidence corroborated
Ferguson’s testimony that Zackular had placed such calls from a
cellular phone, on the mornings of both the Woburn BayBank (10/90)

22
 Second, the court did not abuse its discretion by

admitting the testimony of Jeannette Dion that Dion feared her

former boyfriend, John Meuse. First, the court did not permit Dion

to describe specific "bad acts" which might explain the grounds for

her fear. Further, the Dion testimony was relevant, as it

explained her reluctance to testify as a government witness. Any

countervailing prejudicial effect was slight, as Dion testified

that she had been fearful of Meuse on but one occasion, and was

"not afraid of him otherwise." Any error was harmless as well,

given the direct evidence of Meuse’s guilt (e.g., the Ferguson

testimony). See, e.g., United States v. Harris, 165 F.3d 1062,

1066 (6th Cir. 1999).

Finally, asked what Meuse had done with the robbery

proceeds, Dion testified that he had bought marijuana. As Meuse

preserved no objection to this evidence,15 we review for plain error

only. See United States v. Conley, 186 F.3d 7, 21 n.15 (1st Cir.

1999) ("Plain errors are ‘those errors so shocking that they

seriously affect the fundamental fairness and basic integrity of

the proceedings conducted below.’") (citation omitted). Meuse

and Capital Bank & Trust (11/90) robberies.
15
First, the government asked Dion if she could recall whether
Meuse had bought any "illegal substances." The defense did not
object. When she answered "Yes," the government asked: "What do
you recall?" At that point, Dion answered: "marijuana." Only
then did the defense object. The court sustained the objection,
but the defense did not request a limiting instruction.

23
incorrectly asserts that this drug evidence was totally unrelated

to the crimes charged (i.e., armed robbery). Cf., e.g., United

States v. Currier, 821 F.2d 52, 56 & n.7 (1st Cir. 1987) (drug sale

unrelated to firearms charge). It was relevant at least insofar as

it demonstrated that Meuse had bought many expensive gifts for Dion

while he had no source of legitimate income, which made it somewhat

more likely that he had used robbery proceeds to do so. As this

isolated, brief reference to marijuana almost certainly had no

significant prejudicial effect on the jury, we find no plain error.

G. The Juror Misconduct Claim

Appellants fault the district court for failing to “voir

dire” the jury after counsel to John Meuse reported having observed

jurors examining one another’s notes. Appellants insist that the

trial judge was duty-bound to investigate these allegations. See,

e.g., United States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st

Cir. 1993).

As the district courts are better situated to determine

whether juror misconduct occurred and prejudice resulted, we

normally review their remediation measures only for a patent abuse

of discretion. See United States v. Cruz, 156 F.3d 22, 28 (1st

Cir. 1998). "The trial judge is not . . . shackled to a rigid and

unyielding set [of] rules and procedures that compel any particular

form or scope of inquiry," Ortiz-Arrigoitia, 996 F.2d at 443, but

should be left free to fashion a remedy appropriate and reasonable

24
in the circumstances, see id.

As counsel for John Meuse was the one person in the

courtroom who reportedly observed the alleged misconduct, the

district court simply instructed the jurors that they were not to

look at each other’s notes. Since appellants failed to move for a

mistrial, the remediation measures selected by the district court

are reviewed only for plain error. See id. at 442. And since the

misconduct in question was uncorroborated,16 and did not raise the

same specter of prejudice as improper outside influences upon the

jury, cf. id. at 443 (voir dire conducted where juror allegedly

discussed case with daughter, who was seen speaking with

defendant’s girlfriend); cf. also United States v. Bertoli, 40 F.3d

1384, 1394 (3d Cir. 1994), we find no plain error.

H. Limitations on Cross-examination

Zackular claims that the district court erred in denying

him an unrestricted opportunity to play the tape recordings of

Ferguson’s jailhouse conversations in an effort to show that

Ferguson was biased and lacked credibility. See Fed. R. Evid.

608(b).17 The proffered tape recordings graphically described

16
Several days later, defense counsel claimed to have seen
jurors consulting each other’s notes again. The district court
expressly observed, however, that it had been keeping a careful
watch, but had seen no impropriety.
17
Rule 608(b) provides:

Specific instances of the conduct of a
witness, for the purpose of attacking or

25
Ferguson’s efforts to have Zackular killed. Since the defense

theory turned principally upon Ferguson’s personal animus toward,

and motives for falsely implicating, Zackular, it is Zackular’s

contention that the district court ruling violated his Sixth

Amendment right to confront the witnesses against him.

Confrontation clause challenges are reviewed de novo to

determine whether defense counsel was afforded a reasonable

opportunity to impeach adverse witnesses; once that threshold is

reached, the trial court’s restrictions on the extent and manner of

cross-examination are reviewed only for abuse of discretion. See

United States v. Gomes, 177 F.3d 76, 80 (1st Cir. 1999). The

Zackular claims fail.

First, during the cross-examination of Ferguson,

Zackular’s counsel elicited an admission that Ferguson had tried to

have Zackular killed. Moreover, Zackular played two taped

conversations in which Ferguson described his antagonism; for

supporting the witness’ credibility, other
than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the
court, if probative of truthfulness or
untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the
witness’ character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross-examined has testified.

Fed. R. Evid. 608(b).

26
example, Ferguson threatened to "blow [Zackular’s] head off." As

the jury was adequately apprised of the nature and vehemence of

Ferguson’s feelings toward Zackular, Zackular was afforded an

adequate opportunity to impeach the witness in conformance with the

Sixth Amendment right of confrontation.

27
 Furthermore, the district court expressly ruled that

Zackular would be permitted to play any tape recording which

disclosed Ferguson’s bias. See id. at 81 ("[E]xtrinsic evidence is

admissible to show [witness] bias."). Inexplicably, however,

Zackular has identified no particular tape excerpt which he was

precluded from using. See United States v. Bongiorno, 106 F.3d

1027, 1034 (1st Cir. 1997) (noting that appellate court will deem

waived "issues raised on appeal in a perfunctory manner").

Finally, the district court correctly held that the recordings

could not be used to undermine Ferguson’s credibility. See Gomes,

177 F.3d at 81 ("Extrinsic evidence of specific bad acts is not

admissible to show untruthfulness.").18 There was no abuse of

discretion.

I. Closing Arguments

Appellants contend that their convictions must be set

aside due to improper closing arguments by the prosecution. First,

they assert that the prosecutor intimated that defendants had the

burden of proof and that they should have taken the stand. For

18
Zackular argues that the contents of the tapes did not
constitute "extrinsic evidence," since the recorded statements —
albeit out-of-court — were made by Ferguson. On the contrary,
extrinsic evidence includes any evidence other than trial
testimony. See United States v. Mateos-Sanchez, 864 F.2d 232, 237
(1st Cir. 1988) ("Rule 608(b), which allows specific instances of
conduct to be ‘inquired into’ on cross-examination to attack
credibility, does not provide for the admission of physical
evidence.") (emphasis added). The tapes were just such
nontestimonial evidence.

28
instance, the prosecutor stated: "Did you hear any effort made [by

the defense] . . . to ask [Ferguson] about whether he had ever made

any inconsistent statements [e.g., in his taped conversations]

about [appellants’ involvement in] these robberies?"

Closing arguments are reviewed de novo and reversible

error will be found only if the arguments were "‘both inappropriate

and harmful.’" United States v. Laboy-Delgado, 84 F.3d 22, 29 (1st

Cir. 1996) (citation omitted). Prosecutorial comments will be

found harmful if, “in the totality of the circumstances, they would

probably have affected the outcome of the trial." Id.19

The prosecution may not comment on a defendant’s failure

to take the witness stand in his own defense. See Griffin v.

California, 380 U.S. 609, 615 (1965) (Harlan, J., concurring).

Nevertheless, the government "may focus on the absence of

impeachment [of government witnesses] during cross-examination so

long as [its] comments are ‘sufficiently circumscribed and [do] not

necessarily implicate appellant’s assertion of his fifth amendment

right’ not to take the stand in his own defense." United States v.

Goldman, 563 F.2d 501, 505 (1st Cir. 1977) (citation omitted; final

alteration in original); see Hall v. United States, 46 F.3d 855,

19
Among the relevant factors to be considered are "the severity
of the purported misconduct, the weight of the evidence supporting
the verdict, the presence and likely effect of a curative
instruction, and the prosecutor's purpose in making the statement
(i.e.: whether the statement was willful or inadvertent)." Laboy-
Delgado, 84 F.3d at 29.

29
858 (8th Cir. 1995); cf. United States v. Lewis, 40 F.3d 1325, 1338

(1st Cir. 1994) (observing that prosecution comments concerning the

plausibility of a defense theory do not shift the burden of proof

to the defense). Although it is a source of continual amazement to

us that prosecutors would choose “to hand [a] defendant an issue on

which to appeal," see Goldman, 563 F.2d at 505, these closing

arguments — viewed in their totality and context — expressly

focused only on defects in the cross-examination of Ferguson by the

defense, without inevitably implying that appellants should have

taken the stand.20

Second, appellants complain that the government vouched

for Ferguson’s credibility. After observing that Ferguson would

lose the benefits of his plea bargain were he to perjure himself,

the prosecutor stated: "[Ferguson would] just throw that away,

knowing that he would have two federal prosecutors, agents, going

out checking everything he is saying, verifying. . . . You have

seen a mountain of records . . . all of this stuff is being checked

and verified, the things that he is saying. . . . Judge Lindsay,

who has heard all of this [viz., the government’s case] for the

last three months and particularly James Ferguson for three weeks,

will make that decision as to what sentence to give him."

20
Moreover, even if the comments were determined inappropriate,
the district court repeatedly instructed the jury that the
government, not the defendants, bore the burden of proof. See id.;
supra note 19.

30
(Emphasis added.) Appellants argue that these comments suggested

to the jury that the prosecutor or the judge knew of evidence,

never disclosed to the jury, which would confirm that Ferguson was

telling the truth.

As appellants failed to object to the closing remarks, we

review only for plain error. See United States v. Smith, 101 F.3d

202, 213 (1st Cir. 1996); United States v. Wihbey, 75 F.3d 761, 769

(1st Cir. 1996) (noting that a “plain error” is one which

"seriously affects the fairness, integrity, or public reputation of

the trial process").

"‘[A] prosecutor may not place the prestige of the

government behind a witness by making personal assurances about the

witness'[s] credibility;’ nor may the prosecutor indicate that

facts outside the jury's cognizance support the testimony of the

government's witnesses." United States v. Bey, 188 F.3d 1, 7 (1st

Cir. 1999) (citation omitted; alterations in original); see United

States v. Josleyn, 99 F.3d 1182, 1197 (1st Cir. 1996). These

prohibitions encompass assurances that the government "can monitor

and accurately verify the truthfulness of the witness’ testimony."

United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).

Although these particular comments were inexpert and ill-

advised, their context belies appellants’ efforts to convert them

into plain error. The prosecutor did not imply — at least not

clearly and unequivocally — that the so-called "verification[s]" of

31
Ferguson’s story had not been introduced in evidence at trial.

Rather, by stating that "[y]ou have seen a mountain of records,"

the prosecutor implied that this corroboration consisted only of

documents already introduced at trial. See United States v.

Dockray, 943 F.2d 152, 156 (1st Cir. 1991) (government is entitled

to rebut defense suggestion that government witness’s plea

agreement gave him a motive to lie). Further, the district court

instructed the jury that it was the sole arbiter of the credibility

of the government witnesses and all other evidence. Therefore, we

find no plain error.

J. The Hobbs Act Instruction

John Meuse contends that the district court erroneously

instructed the jury on the Hobbs Act count. Although the

government must prove that the establishments which appellants

allegedly robbed had operated in interstate commerce, the district

court instructed as a matter of law that the businesses at issue in

this case were engaged in interstate commerce.

As Meuse failed to object to the instruction below, we

review for plain error. See United States v. Owens, 167 F.3d 739,

755 (1st Cir. 1999). The government acknowledges that the

instruction was erroneous. See United States v. Gaudin, 515 U.S.

506, 522-23 (1995) ("[A] criminal defendant [has] the right to have

a jury determine, beyond a reasonable doubt, his guilt of every

element of the crime with which he is charged."). Meuse argues

32
that this was not only "trial error" but "structural error," which

is not subject to harmless-error review. See Arizona v. Fulminante,

499 U.S. 279, 280 (1991). The law is otherwise, however. See

Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 1836-37

(1999). As Meuse does not dispute that the government introduced

overwhelming evidence that the businesses at issue sold goods which

moved in interstate commerce, and it appears beyond a reasonable

doubt that the jury would have found for the government on this

element, the error was harmless; a fortiori, it cannot have been

plain error. See Owens, 167 F.3d at 754 (finding no plain error

where "overwhelming" evidence proved omitted element).

K. Sentence Enhancement for Obstruction of Justice

John Meuse claims that the district court erred in

imposing a two-level enhancement for obstruction of justice. See

U.S.S.G. § 3C1.1. During Ferguson’s cross-examination, Meuse

blurted out in open court: "I want to fire [my] lawyer because I

believe she’s working with the prosecution." Thereafter, in

various colloquies with the court, Meuse requested a severance,

claimed that he had told his attorney earlier in the day that he

intended to fire her, and maintained that he had been forced to

blurt out the above information in open court once he realized that

she did not intend to convey his wishes to the court.

A district court finding that a defendant obstructed

justice is reviewed only for clear error, see United States v.

33
Cardales, 168 F.3d 548, 558 (1st Cir. 1999), and where the record

supports at least two permissible inferences, the factfinder’s

choice between them cannot be clearly erroneous. See United States

v. Veilleux, 949 F.2d 522, 525 (1st Cir. 1991).

The record contained ample support for a preponderance-

of-the-evidence finding that Meuse uttered this statement with

intent to obstruct the trial and gain an advantageous severance,

see United States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996),

whereas the Meuse claim depended entirely on his self-serving

characterization of the relevant events. His counsel represented

to the district court that Meuse had not requested that she inform

the court that Meuse wanted to fire her, but only that he was

unhappy with the Ferguson cross-examination and was considering

whether or not to dismiss her. Given the equivocal account which

Meuse gave of their conversation,21 the district court, as

factfinder, was entitled to credit counsel’s version. The district

court noted as well that earlier Thomas Meuse had used his attorney

to pass notes to the court. Thus, John Meuse plainly was aware

that there were other means of communicating with the court besides

blurting out his concerns in open court.

Thus, the record amply supported the district court

finding, by a preponderance of the evidence, that Meuse "calculated

21
After the district court twice asked if Meuse had requested
that his attorney so inform the court, Meuse could only respond: "I
thought I made it clear."

34
[his outburst] to create the greatest damage to his trial," in

hopes of obtaining a belated severance.

L. The Restitution Order

Finally, Todd Arsenault argues that the district court

erred in ordering $70,000 in restitution, without first considering

his ability to pay. He claims a limited future-earning potential

on the ground that he had reported income totaling only $1383 in

the preceding ten-year period, has serious medical and emotional

problems, and little education or vocational training.

We review restitution orders for abuse of discretion.

See United States v. LiCausi, 167 F.3d 36, 52 (1st Cir. 1999).

Sentencing courts need not make explicit factual findings on the

five factors enumerated in 18 U.S.C. § 3664(a), including the

defendant’s ability to pay, United States v. Vaknin, 112 F.3d 579,

591 (1st Cir. 1997), provided the record supports any implicit

finding. In this case, the district court specifically stated that

it had reviewed the presentence report, which included a detailed

outline of Arsenault’s financial prospects. Significantly, it

reflected that Arsenault would be relatively young when he

completed his five-year prison sentence and would have the

opportunity to work at his father’s business. Finally, Arsenault

was ordered to repay a mere 20% of the losses sustained by his

victims. We discern no abuse of discretion in the restitutionary

order.

35
 III

CONCLUSION

Appellants’ many other arguments having been carefully

considered as well, and having been determined meritless, we affirm

their respective convictions and sentences.

Affirmed.

36