United States v. Shea

United States Court of Appeals
For the First Circuit

No. 98-1567
No. 99-1111

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY M. SHEA,

Defendant, Appellant.
____________________

No. 98-1568
No. 99-1110

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL K. O'HALLORAN

Defendant, Appellant.
____________________

No. 98-1569
No. 99-2009

UNITED STATES OF AMERICA,

Appellee,

v.

PATRICK J. McGONAGLE,

Defendant, Appellant.
____________________
 ____________________

No. 98-1570
No. 99-1109

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN G. BURKE,

Defendant, Appellant.
____________________

No. 98-1767
No. 99-1204

UNITED STATES OF AMERICA,

Appellee,

v.

MATTHEW McDONALD,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Lynch and Lipez,

Circuit Judges.

Bruce E. Kenna, by appointment of the court, with whom
Kenna, Johnston & Sharkey, P.A. was on consolidated brief for
appellant Patrick J. McGonagle.
 Robert L. Sheketoff, by appointment of the court, with whom
Sheketoff & Homan was on consolidated brief for appellant
Stephen Burke.
Judith H. Mizner, by appointment of the court, for appellant
Matthew McDonald.
 Michael J. Iacopino, by appointment of the court, with whom
Brennan, Caron, Lenehan & Iacopino was on consolidated brief for
appellant Michael K. O'Halloran.
Michael K. O'Halloran on supplemental pro se brief.
Bjorn Lange, Assistant Federal Defender, Federal Defender
Office, for appellant Anthony M. Shea.
David A. Vicinanzo, First Assistant United States Attorney,
with whom Paul M. Gagnon, United States Attorney, Jean B. Weld,
Donald Feith and Terry Ollila, Assistant United States
Attorneys, were on brief for the United States.

May 2, 2000
 BOUDIN, Circuit Judge. This appeal grows out of a

second superseding indictment returned in New Hampshire on May

1, 1997, charging six defendants with a variety of federal

offenses related to a string of bank and armored car robberies

that took place between 1990 and 1996. The trial began on

September 16, 1997, one defendant pled guilty during trial, and

the remaining five defendants completed the three-month trial,

were convicted and are appellants in this court: they are

Anthony Shea, Stephen Burke, Matthew McDonald, Patrick McGonagle

and Michael O'Halloran.

The evidence presented at trial included a wealth of

exhibits as well as testimony by over 150 witnesses. In

substance, the evidence showed that Shea, McDonald and one Dick

Donovan had carried out a series of bank robberies beginning in

1990; that by 1992 Stephen Burke and O'Halloran had joined the

scheme, together with Burke's brother John (who pled guilty at

trial). From 1992 onward, the group concentrated on armored car

robberies (with an occasional bank robbery) in the Northeast and

Florida. The most notorious incident was a Hudson, New

Hampshire, armored car robbery in August 1994, in which both

armored car drivers were kidnaped and executed.

The government's case was substantially aided by the

testimony of Steven Connolly, who was a longtime friend of two

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of the defendants and an acquaintance to the others. He had

been recruited into the scheme in March 1994 and provided

testimony, including descriptions of defendants' conduct in

various of the offenses, their techniques, and admissions made

by individual defendants. A number of other government

witnesses, some unwilling, also described admissions by

individual defendants to various of the robberies.

The government charged two armored car robberies--those

that had occurred in New Hampshire--as substantive offenses, and

it offered proof of a number of other bank or armored car

robberies as predicate acts or evidence to support the charges

that some or all of the defendants were engaged in a

racketeering enterprise under the RICO statute, a RICO

conspiracy, conspiracy to rob banks, carjacking, and several

different kinds of firearms offenses. 18 U.S.C. §§ 371,

922(g)(1), 922(g)(3), 924(c), 1951, 1962(c)-(d), 2113(d), 2119

(1994). The two New Hampshire robberies, including the August

1994 Hudson robbery and another that occurred in Seabrook in May

1993, were the subject of extensive evidence.

About two months into the trial, the district court

(with the government's agreement) granted a judgment of

acquittal on several counts and one racketeering act as to

certain of the defendants and one racketeering act as to all of

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the defendants. The remaining counts, minus particular

racketeering acts and overt acts as to which no evidence was

presented, were eventually submitted to the jury under a

redacted indictment now containing 14 counts and on December 22,

1997, the jury convicted all five defendants on all submitted

charges, save that it acquitted McGonagle of carjacking in

relation to the Hudson robbery.

All five of the defendants were convicted of conspiracy

to commit armed robberies and of committing and conspiring to

commit the Hudson robbery. All of the defendants except

McGonagle were convicted of operating a racketeering enterprise,

engaging in a racketeering conspiracy, carjacking in connection

with the Hudson robbery, and of various firearms offenses.

Shea, Burke and O'Halloran were also convicted of committing and

conspiring to commit the Seabrook armored car robbery.

On May 8, 1998, the court imposed sentences on each of

the defendants. Each was sentenced to life imprisonment, except

for McGonagle, who was sentenced to 360 months. The defendants

have now appealed, presenting a series of claims concerning

sufficiency of evidence as to certain counts, pretrial and trial

rulings, the composition of the jury and the instructions given

to it, and sentencing and other post-trial matters.

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 Sufficiency. On several claims, individual defendants

say that the evidence was insufficient for a reasonable jury to

convict, and that their motions for a judgment of acquittal

should have been granted. Review of such claims is de novo,

United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir. 1997), and

the evidence is considered in the light most favorable to the

prosecution. United States v. Echeverri, 982 F.2d 675, 677 (1st

Cir. 1993). By this standard, the evidence in each case was

adequate on the contested counts (and on many others it was

overwhelming).

McGonagle does not contest that the evidence was

sufficient to convict him of bank robbery and conspiracy to

commit the Hudson robbery, but he says that the evidence was

insufficient to tie him to a broader conspiracy to commit a

series of armed robberies--a crime of which all defendants were

convicted. However, Connolly testified that Shea had identified

McGonagle as one of the conspirators in the broader conspiracy

and, in addition to the ample evidence of McGonagle's role in

the Hudson robbery, there is evidence that linked him to a

separate armored car robbery by the conspirators almost eight

months before the Hudson robbery. At least two witnesses, in

addition to Connolly, testified to McGonagle's role.

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 McDonald, joined by O'Halloran and Burke, says that the

government failed to prove the existence of a single

racketeering enterprise, racketeering conspiracy, or a broad

conspiracy to commit armed robbery; at best, he contends, the

jury could only have found smaller enterprises or conspiracies

with a changing cast of conspirators. No magic formula exists

for determining when a set of jointly committed crimes adds up

to an overarching conspiracy or enterprise; the courts tend to

look for common goal, overlap among participants, and a measure

of interdependence, United States v. Portela, 167 F.3d 687, 695

(1st Cir.), cert. denied, 120 S. Ct. 273 (1999); and a general

scheme may exist "notwithstanding variations in personnel and

their roles" over time. United States v. Bello-Perez, 977 F.2d

664, 668 (1st Cir. 1992).

Here, the evidence supported, and the jury necessarily

found, that while the cast of characters changed over time,

there was nevertheless one overarching conspiracy. Shea was

involved from the beginning, and he and Burke were involved in

the largest number of crimes. There was also evidence that

McDonald was involved in the conspiracy from its inception and

that he and O'Halloran were substantially involved in the

overarching racketeering conspiracy and enterprise and a broad

conspiracy to commit armed robbery. Despite an interruption in

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McDonald's role caused by his temporary imprisonment on a parole

violation, and O'Halloran's somewhat late arrival in the scheme,

enough evidence existed of a common and continuing aim, similar

methods of operation, continuity in personnel, and

interdependence to permit the court to send the separate counts

to the jury and the jury to find a RICO enterprise, a RICO

conspiracy, and a broad conspiracy to rob banks and armored

cars.

McDonald was convicted of three different gun charges

(felon-in-possession, drug user-in-possession, and use and

possession during a violent crime) relating to the Hudson

armored car robbery. He says that the evidence was insufficient

on these counts. However, constructive possession is

sufficient. United States v. Wight, 968 F.2d 1393, 1397-98 (1st

Cir. 1992). Here the evidence showed that the defendants as a

group were regularly armed. In addition, a government witness

testified that two days before the Hudson robbery, McDonald said

that he was going to take part in it and displayed a handgun at

the same time; and at least six weapons were used in the Hudson

robbery.

O'Halloran, who was convicted of firearms charges in

connection with both the Hudson and Seabrook robberies, makes a

similar claim that the evidence was insufficient. Again, the

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constructive possession theory was available to the government

and was supported by the evidence. In addition, there was

testimony by government witnesses to support the view that

O'Halloran had himself possessed weapons in both of the

robberies. The lower court did not err in sending the firearm

counts to the jury.

Specific evidence. We turn next to objections to

particular pieces of evidence, starting with Shea's objection to

the use at trial of a number of items seized in a January 1990

search of his Charlestown residence (including weapons, a

bulletproof vest, camouflage clothing, and masks). The search

was based on a warrant secured through an affidavit given by a

federal agent; its gist was information furnished by an

informant, whose prior information had been reliable, that on

three occasions over the six weeks prior to the affidavit the

informant had seen a sawed-off shotgun at the residence where

Shea was present. The affiant also said that Shea had no

required federal registration for possessing a sawed-off

shotgun.

The district court relied on the good faith exception

to the exclusionary rule, United States v. Leon, 468 U.S. 897,

922-25 (1984), in finding that reliance on the warrant was

objectively reasonable, even if the application was defective.

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We review probable cause determinations de novo, Ornelas v.

United States, 517 U.S. 690, 699 (1996), and the same standard

applies to Leon determinations, United States v. Procopio, 88

F.3d 21, 28 (1st Cir.), cert. denied, 519 U.S. 1046 (1996).

Shea says that there is a lack of detailed information about the

circumstances in which the informant saw the shotgun and,

further, that there is no explicit basis for the assertion in

the affidavit that Shea resided at the address in question.

The reliability of the informant was amply established

by the described record of prior assists, and we see no reason

in these circumstances why the informant's straightforward

description of seeing the shotgun in the apartment in Shea's

presence on three different recent occasions needed to be

embellished by further detail. Admittedly, the affidavit does

not make clear how the informant (or the affiant) knew that Shea

resided at the apartment, which might or might not be viewed as

the necessary link in the chain. To the extent it is such a

link, the failure to spell out the basis for associating Shea

with the address is a minor error (and not infrequently so,

Procopio, 88 F.3d at 28); given that the informant said he had

seen Shea on the premises on three occasions, the gap in proof

is sufficiently small, if a gap there is, that Leon amply

applies.

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 Shea also challenges the use of evidence derived from

a search of his vehicle on August 11, 1995, during Shea's

attempted but aborted robbery of a bank in Wakefield,

Massachusetts--which Shea carried out independently of the

enterprise and conspiracies charged in this case. The evidence

seized included weapons and other paraphernalia. Shea also

objects to fragments of testimony, elicited primarily by co-

defendants, suggesting Shea's connection with the Wakefield

incident. Shea says that the cumulative effect was to retry him

for the Wakefield attempted robbery after he had already been

convicted of it in a separate trial, see United States v. Shea,

150 F.3d 44 (1st Cir.), cert. denied, 525 U.S. 1030 (1998), and

that this violated his constitutional rights (e.g., under the

Double Jeopardy Clause).

Evidence of "other crimes" relevant to proving the

crime charged is not subject to the double jeopardy or other

constitutional objections made by Shea, United States v. Felix,

503 U.S. 378, 386-87 & n.3 (1992), nor is it subject to

limitations on use of character evidence, if it is offered for

some purpose other than to prove character. See Fed. R. Evid.

404(b). Here, the weapons seized from Shea during the Wakefield

attempt were directly relevant to the racketeering and

conspiracy charges because the evidence showed that they were

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previously used by Shea and Burke in a July 28, 1995, bank

robbery at Fall River, Massachusetts, which is one of the

predicate acts in the racketeering count charged in the present

case.

It is less clear how the government justified its

introduction of other evidence seized from Shea's car (e.g., a

walkie-talkie and police scanners) apparently not linked to a

charged act or offense (the government's brief is suspiciously

silent on this point). But Shea's objections at trial seemingly

did not pinpoint the relevance objection, Fed. R. Evid.

103(a)(1), and in any event the evidence, even if improperly

admitted, was harmless in light of the guns and the other

substantial evidence offered against Shea. See United States v.

Benavente Gomez, 921 F.2d 378, 386 (1st Cir. 1990).

A few brief testimonial references to Shea's connection

to the Wakefield incident were elicited at trial, primarily by

co-defendants seeking to support their multiple conspiracies

defense (by showing that Shea engaged in robberies on his own or

with other persons who were not defendants in this case).

However, these references were fleeting, and the district judge,

who had sought to restrict references to Wakefield, did not err

in refusing to grant a mistrial on this basis.

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 Shea also claims error in the district court's refusal

to suppress statements made by Shea, incriminating himself in

the Hudson robbery, to one James Ferguson, with whom Shea was

incarcerated in 1995 in connection with the Wakefield robbery.

At that time, Ferguson was a government informant wearing a

listening device and, because Shea was then represented by

counsel on the Wakefield robbery, he says that the eliciting of

incriminating statements as to the Hudson robbery violated his

Sixth Amendment right to counsel during the custodial

interrogation.

The government's answer, which is adequate, is that at

the time the statements were obtained, Shea had not been charged

with the Hudson robbery and his right to counsel with respect to

that robbery had not yet "attached." See McNeil v. Wisconsin,

501 U.S. 171, 175-76 (1991); United States v. LaBare, 191 F.3d

60, 64 (1st Cir. 1999). This argument is an accepted counter to

such claims, United States v. Nocella, 849 F.2d 33, 36-38 (1st

Cir. 1988), and there is no indication that the Supreme Court

contemplates an expansion of the Sixth Amendment right to

counsel.

In a separate argument, McDonald challenges the

district court's refusal to suppress DNA evidence that derived

from blood, saliva and hair samples taken from him pursuant to

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a December 29, 1994 warrant. The DNA was matched with DNA from

saliva left at the scene of a February 1992 robbery in Newton,

Massachusetts, which was one of the racketeering acts charged in

the indictment. McDonald says that the affidavit supporting the

warrant application failed to establish probable cause and

rested on material misrepresentations.

Aside from the alleged misrepresentations, the evidence

described in the warrant was more than sufficient to establish

probable cause to believe that McDonald was involved in the

robbery. The story as to the alleged misrepresentation is

complicated: the affidavit relied on a supposed match between

a fiber found on McDonald's clothing and the fibers from the

carpet of one of the vehicles used in the Hudson robbery.

McDonald says the match was overstated or utterly irrelevant.

But we need not resolve the issue, since the remaining

connections between McDonald and the crime were ample to support

the affidavit without regard to the fiber evidence. Franks v.

Delaware, 438 U.S. 154, 171-72 (1978).

Burke makes an argument, adopted by McDonald, Shea, and

O'Halloran, that the district court erred in permitting a

government expert (Dr. Harold Deadman) to testify as to matches

between DNA from blood samples of Burke and McDonald and several

pieces of physical evidence found at different crime scenes.

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The attack on the Deadman testimony rested on this expert's

failure to note one faint allele dot in a sample of sweat taken

from a baseball cap found in a getaway vehicle, the DNA of which

Dr. Deadman matched to Burke's blood sample. This, in turn, led

to an arguable contradiction in Deadman's initial explanation of

his basis for the match, although Dr. Deadman then provided a

defense of his position at trial.1

The district court conducted a lengthy hearing on

admissibility of the DNA evidence under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993), and held that

any flaws in Dr. Deadman's application of an otherwise reliable

methodology went to weight and credibility and not to

admissibility. Most circuits that have spoken have agreed with

this approach, see, e.g., United States v. Johnson, 56 F.3d 947,

1 At the pre-trial Daubert hearing, Dr. Deadman testified
that the DNA testing he performed on the sweat from the cap
matched Stephen Burke's blood sample. His opinion was based on
his belief that only a "B" allele dot was present in the sweat
along with his knowledge that Burke's blood sample was typed as
a "BB." On cross-examination, he indicated that, as a general
matter, he would not usually conclude that a match was made if
a visible weak dot of a different type was mixed in. Subsequent
to this testimony, an expert for the defense, Dr. Randell Libby,
noted the presence of a faint "A" allele dot that Dr. Deadman
had not previously noticed, and argued that such a mixture
prevented a conclusion of a match to an individual typed as
"BB." Dr. Deadman acknowledged the existence of the weak "A"
allele dot and his failure initially to identify it. But he
stated that the presence of a mixture would not--in light of the
faint intensity of the "A" allele dot--alter his conclusion of
a match with Stephen Burke's DNA.

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952-53 (8th Cir. 1995), relying on the view that "cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof" is the proper challenge to

"shaky but admissible evidence." Daubert, 509 U.S. at 596. The

district court did not abuse its discretion in admitting the

Deadman evidence. United States v. Lowe, 145 F.3d 45, 50-51

(1st Cir.), cert. denied, 525 U.S. 918 (1998).

A final dispute as to tangible evidence concerns a

latent thumb print matching defendant Burke that was allegedly

lifted from a truck leased by McGonagle and used in the Hudson

incident. The print was dusted but not lifted during the first

inspection of the truck (it was concealed because a door was

open), and Burke argued at trial that the print later lifted

came from a different truck and that the government, by

returning the truck to the owner after its collection of prints

was complete, had prevented him from proving this definitively.

Although Burke calls the return of the truck

"spoliation," the government explained both the delay in lifting

the print and the return of the truck, and there is no basis for

imputing bad faith to the government--a usual precondition to a

spoliation claim in "missing evidence" cases. United States v.

Femia, 9 F.3d 990, 994 (1st Cir. 1993). There may be

extraordinary cases where the government's loss of evidence

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requires some remedy despite good faith, cf. United States v.

Alston, 112 F.3d 32, 35 (1st Cir.), cert. denied, 522 U.S. 999

(1997), but police do not usually preserve intact a site from

which prints are lifted and Burke was free to argue his wrong

truck theory based on photographs that were available.

Hearsay. At trial, various friends or associates of

the defendants testified to incriminating out-of-court

statements made by individual defendants; these were, of course,

admissions as to the makers, Fed. R. Evid. 801(d)(2)(A), but

hearsay as to the other defendants unless--as the district court

held--they were admissible against the other defendants as co-

conspirator statements, Fed. R. Evid. 801(d)(2)(E), or under the

exception for statements against penal interest, Fed. R. Evid.

804(b)(3). Appellants claim that the rule-based preconditions

were not met or that the Confrontation Clause provided an

independent basis for limiting admissibility.

Only Shea argues on appeal that certain of the

statements admitted were not in furtherance of the conspiracy

and therefore not within the co-conspirator exception. The

statements in question, which we need not recite, were seemingly

made for such purposes as recruiting new members into the

conspiracy or passing information between conspirators. The

district court did not commit clear error, United States v.

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Patterson, 644 F.2d 890, 894 (1st Cir. 1981), in finding that

these statements were, more probably than not, made during and

in furtherance of the conspiracy. United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).

Similarly, the statements challenged by Shea, McDonald,

McGonagle, and O'Halloran that were admitted as against their

penal interest fell within that rule or at least the district

court committed no error in so finding under then-existing

precedent. See Williamson v. United States, 512 U.S. 594, 599-

601 (1994); United States v. Barone, 114 F.3d 1284, 1296 (1st

Cir.), cert. denied, 522 U.S. 1021 (1997). The more important

question is whether anything is altered by the Supreme Court’s

subsequent decision in Lilly v. Virginia, 119 S. Ct. 1887

(1999). Lilly disallowed the out-of-court statement of the

defendant’s brother who, under police questioning, conceded that

he was involved in a shooting but identified the defendant as

the triggerman; the court reasoned that the statement did not

fall within a "firmly rooted" exception to the hearsay rule and

failed under the Confrontation Clause. Id. at 1899.

Lilly’s main concern was with statements in which, as

is common in police-station confessions, the declarant admits

only what the authorities are already capable of proving against

him and seeks to shift the principal blame to another (against

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whom the prosecutor then offers the statement at trial). 119 S.

Ct. at 1901. While Lilly’s full reach may be unclear--there was

no single "majority" opinion--it does not in our view affect the

admissibility of the statements at issue here: all those

identified in this case were made to friends or companions, not

to the police, and were not of the "blame shifting" variety.

Barone, 114 F.3d at 1302.

The district court also admitted these statements on

the alternative ground (so far as the Confrontation Clause is

concerned) that they were attended by "particularized guarantees

of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980).

The district judge referred specifically to Roberts and the

assessment required by Barone to determine whether a statement

falls within a firmly-rooted exception to the hearsay rule.

Thus, even if Lilly is more far reaching than we think likely,

it would not affect the outcome here.

Miscellany. There remain various other trial

objections which we take largely in chronological order. Four

of the defendants argue that the jury-selection process was

flawed because the district court failed to empty and refill the

master jury wheel on a timely basis. The Jury Selection and

Service Act of 1968, 28 U.S.C. § 1861 et seq. (1994), requires

that "emptying and refilling" be done periodically, "the

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interval for which shall not exceed four years." Id. §

1863(b)(4). The aim is to ensure that the jury comes from a

"fair cross section of the community" determined by reasonably

recent data. Id. § 1861.

In the New Hampshire jury selection plan, new names are

collected every four years following a general election from the

latest New Hampshire voter registration lists and from current

driver license records; but to provide time to collect and

organize, the plan provides for emptying and refilling every

four years "within nine months" following the general election

in November. In this case, the chronology is as follows:

•June 16, 1993: list compiled based on 1992
elections

•August 1, 1993: list put into effect

•July 24, 1997: list used to mail summonses
to jurors for defendants’ jury

The defendants say that the list used to select their

jury had existed for more than four years prior to the date that

it was used to select their jury (June 16, 1993 to July 24,

1997) and so violated the statute’s four-year provision. The

district court has read the statute’s four year provision to

require that the wheel be emptied and refilled within four

years, and that the list used for defendants’ jury had been used

for less than four years (August 1, 1993 to July 24, 1997). The

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issue is what the statute means, an issue as to which review is

de novo. United States v. Royal, 174 F.3d 1, 5 (1st Cir. 1999).

The district court’s reading is literally accurate--the

names in the wheel had not been used for more than four years--

but it does not meet a related concern, namely, that the data

itself be reasonably fresh when put into use. The jury in this

case was selected based on data more than four years old (the

November 1992 election lists). But the New Hampshire plan

reasonably answers this concern by requiring that the wheel be

refilled within nine months after the general election, and the

statute does not preclude a reasonable delay between the

collection of the data and its insertion into the wheel.

Defendants also assert that the "random" selection

requirement of the statute was frustrated because the use of

data more than four years old necessarily reduced the number of

both younger jurors and jurors who had recently relocated to New

Hampshire. But for sound practical reasons the Supreme Court

has essentially rejected the "young persons" claim, Hamling v.

United States, 418 U.S. 87, 137-38 (1974); and while later data

might include more recent immigrants to New Hampshire, there is

nothing in the circumstances of this case to show that recent

immigrants to the state were the kind of distinctive group whose

slightly reduced representation comprised a violation of the

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statute or the Sixth Amendment. Duren v. Missouri, 439 U.S.

357, 364 (1979).

The next jury selection issue is Shea’s objection, now

joined by other defendants, that one of the jurors should have

been dismissed, primarily because she expressed fear of the

defendants during a pair of voir dires conducted after jury

selection. Removal of a juror for cause is normally a fact-

sensitive matter on which the district judge’s on-the-scene

judgment deserves great weight. See Williams v. Drake, 146 F.3d

44, 50 (1st Cir. 1998); United States v. Gonzalez-Soberal, 109

F.3d 64, 69 (1st Cir. 1997). We have reviewed the voir dire

transcripts and, without recounting the facts in detail, are

satisfied that the district court did not abuse its discretion.

Cf. Gonzalez-Soberal, 109 F.3d at 69-70.

Finally, defendants' claim that the district court

personnel acted outside their authority in dismissing those

potential jurors who were acquainted with counsel in this case

is without merit. So long as the district court exercises

general oversight, the delegation of excusal tasks to court

personnel has long been approved of and encouraged. See United

States v. Candelaria-Silva, 166 F.3d 19, 31 (1st Cir. 1999);

United States v. Maskeny, 609 F.2d 183, 193-94 (5th Cir. 1980);

United States v. Marrapese, 610 F. Supp. 991, 1000-01 (D.R.I.

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1985). The record shows that the trial judge approved of the

court personnel excusing jurors on this basis; accordingly,

there was no violation of the Act.

The defendants’ next claim of error relates to the

prosecutor’s opening statement. In outlining the evidence, the

prosecutor began not chronologically but with the most dramatic

incident, the Hudson robbery and murder of the guards; his

description was somewhat emotional; and, in the district judge’s

view, the prosecutor did not make it sufficiently clear (despite

the court's admonitions) that the prosecutor's description of

various events was a preview of intended evidence rather than an

expression of personal belief. Finding that the latter offense

was not willful, the district court limited its response to

strong cautionary instructions.

O’Halloran, joined by other defendants, says that the

district court should, as requested at the time, have granted a

mistrial based on the opening statement. However, the district

court’s finding on willfulness is not clear error, the

cautionary instructions were repeated and emphatic, and the

district judge was best placed to assess the overall effect on

the jury. The discretion accorded a judge on whether to grant

a motion for mistrial is very broad and it was not abused here.

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See United States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994),

cert. denied, 513 U.S. 1119 (1995).

During trial, counsel for three of the defendants--

Burke, O’Halloran and McDonald--sought on several occasions to

cross- examine government witnesses to show that Shea had

engaged in robberies independently of the others. Their

asserted purpose was to show that the evidence made out at best

multiple conspiracies for different robberies and not the

overarching conspiracy and enterprise charged in the indictment.

In particular, these defendants sought to show that Shea had

been involved in and convicted for the robbery at Wakefield, a

crime not involving the other defendants.

The district court refused to allow the other

defendants to prove that Shea was arrested and convicted of the

Wakefield robbery; seemingly, the court thought the evidence of

little relevance to the multiple-conspiracy defense but highly

prejudicial to Shea. On appeal, the three defendants complain

that their right to cross-examine was unduly restricted. In the

alternative, they say that the district court should have

granted them a severance from Shea, which they requested, to

permit them to develop this defense without prejudicing Shea.

The government says that the defendants now raising the

claim did not press the multiple conspiracy argument before the

-27-
jury and have therefore waived their present claims, but this is

not fully persuasive: the defendants might have argued the

point to the jury if they had been allowed to develop the

evidence. A better response, also offered by the government, is

that they had no right to insist on cross-examining beyond the

scope of the direct examination or beyond matters affecting

credibility, Fed. R. Evid. 611(b); United States v. McLaughlin,

957 F.2d 12, 17 (1st Cir. 1992), but (among other possible

replies) this would leave the denial of the severance request to

be explained.

In our view, showing that Shea was convicted for a

separate robbery in the same time frame had some relevance to

the defense but not much; Shea’s sideline ventures did not

prevent him from also engaging in a broad conspiracy with the

defendants, and proof of the latter turned primarily on how the

jury assessed the relationship of the crimes in which the

defendants participated. We are thus dealing with one primary

episode that is marginal as to the three defendants’ defense but

highly prejudicial as to Shea.

The right of cross-examination is important but can be

reasonably limited for all kinds of reasons. United States v.

Boylan, 898 F.2d 230, 254 (1st Cir.), cert. denied, 498 U.S. 849

(1990). Similarly, severance is not an automatic entitlement

-28-
merely because it would give the defendant seeking it a marginal

advantage--at the cost of multiple trials. Zafiro v. United

States, 506 U.S. 534, 539 (1993). Here, the evidence in

question was of very limited use and the reasons for restricting

cross-examination and refusing severance were potent. Tested by

the abuse of discretion standard that applies in both instances,

United States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991)

(severance), cert. denied, 502 U.S. 1079 (1992); Boylan, 898

F.2d at 254 (cross-examination), the district court is easily

sustained.

Finally, two of the defendants say that they were

denied proper counsel. The first of these claims arises out of

McDonald’s request, made approximately 30 days before trial, for

a new appointed counsel. Most of the reasons given by McDonald

for his request are too slight to require mention; but one rises

somewhat above this level: four months before trial, a partner

of McDonald’s lawyer was appointed Attorney General of New

Hampshire. Noting that the state was not a party to the federal

prosecution, the district court found McDonald’s concern

insufficient to justify new counsel.

Objectively, no conflict was created by the appointment

but one can imagine situations where, whatever the objective

reality, a client might reasonably feel that his relationship

-29-
with his counsel was compromised. We doubt that this is such a

case but need not decide the point. It is enough that the

partner’s appointment occurred four months before trial,

McDonald reserved his concern until it was too late to appoint

new counsel without a severance or a delay in a trial already

postponed more than once, and no evidence existed of a total

breakdown in communication between lawyer and client. United

States v. Allen, 789 F.2d 90, 92-93 (1st Cir.), cert. denied,

479 U.S. 846 (1986).

The other claim regarding counsel is Burke's assertion

that his lawyer was ineffective; Burke says that counsel should

have moved for a judgment of acquittal on the felon-in-

possession counts because no prior felony conviction was proved.

In fact, there was testimony as to Burke's record from his

parole officer and in any event his counsel reasonably

stipulated to a prior conviction to avoid more detailed proof.

The claim is thus frivolous.

Sentencing. The defendants have raised several issues

related to sentencing. The first is formally an attack on the

conviction of four of the defendants (all except McGonagle), for

carjacking under 18 U.S.C. § 2119, but its significance pertains

to sentencing. The count, framed in the language of the statute

as it existed at the time of the crime, charged the four with

-30-
the carjacking incident to the Hudson robbery. To satisfy the

"by force and violence" requirement of the statute, the count

alleged the assault and murder of the guards.

In describing penalties, the carjacking statute

provided that "if death results," imprisonment for a term of

years "up to life" shall be imposed (the possibility of a death

sentence was later added). At the time of the trial, we had

treated the "if death results" provision as a sentencing matter

to be resolved by the judge. United States v. Rivera-Gomez, 67

F.3d 993, 1000 (1st Cir. 1995). Accordingly, the district judge

did not instruct the jury to find "death" as an element of the

carjacking offense but did at sentencing impose life

imprisonment on the four defendants on this count.

Thereafter, the Supreme Court ruled in a five-to-four

decision that the carjacking statute should be read to create

three separate crimes: one where no physical harm occurred, one

for "serious bodily injury" and one "if death results." Jones

v. United States, 119 S. Ct. 1215, 1218-28 (1999). The

defendants now argue that their life sentences on this count

must be set aside for lack of instructions and a jury finding

that death resulted. In retrospect, the failure to instruct

on the "if death results" requirement was "error" under Jones,

but it was patently harmless. The government introduced at

-31-
trial photographs of the dead guards and testimony from the

state's assistant deputy medical examiner, who participated in

and testified about the autopsies. Witnesses testified that

each of the four defendants had admitted that the guards were

killed during the robbery, and the defendants did not contest

the point. In the words of Neder v. United States, 119 S. Ct.

1827, 1837 (1999), we conclude "beyond a reasonable doubt that

the omitted element was uncontested and supported by

overwhelming evidence," so the error in instruction was

"harmless." See United States v. Perez-Montanez, 202 F.3d 434,

442-43 (1st Cir. 2000).

Another claim that involves both convictions and

sentence is that of McDonald. He was convicted under separate

counts of being a felon-in-possession and a drug user-in-

possession with respect to the same firearms, 18 U.S.C. §

922(g)(1), (3), and sentenced concurrently to life imprisonment

on the former and 120 months on the latter. Although he made no

such objection in the district court, he now says that the two

counts are multiplicitous (that is, charge the same offense

twice) and that his conviction and sentence twice for the same

crime violate the Double Jeopardy Clause.

Since each count involves an element that the other

does not, the Double Jeopardy Clause would not bar multiple

-32-
convictions and punishments under the familiar Blockburger test.

United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989)

(citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

However, as a matter of statutory construction, several circuits

have held that Congress did not intend to inflict multiple

punishments where a drug-using, former felon possessed a

firearm. United States v. Munoz-Romo, 989 F.2d 757, 759 (5th

Cir. 1993); cf. United States v. Winchester, 916 F.2d 601, 606-

08 (11th Cir. 1990). The government concedes this point and

says that the shorter sentence should be vacated (along with the

statutory $50 assessment).

However, the government says that the two convictions

should stand because no objection was made to the indictment on

multiplicity grounds and the objection is therefore waived.

Fed. R. Crim. P. 12(b)(2). Whether there is a multiplicity

objection is a nice question and arguably depends on attributing

a further refinement in intent to Congress; it is clear enough

that the government is entitled to get both theories before the

jury, whether in one count or two. In all events, we do not

treat the multiple "convictions" as clear error.

The law is somewhat clearer that multiple "punishments"

are not proper, although the matter was not previously addressed

by this court; and while no objection was made at sentencing in

-33-
the district court, we accept the government's view that relief

should be granted as to the sentence. Since the sentence was

concurrent in any event, the only practical effect of following

the government's recommendation is to remit the $50 special

assessment, but at least the law on this issue will be clear in

this circuit in the future.

A different double jeopardy claim is made by Shea to

his separate convictions and sentences for carjacking, 18

U.S.C. § 2119, and the use of a firearm during a violent crime,

18 U.S.C. § 924(c). Shea was sentenced, consecutively, to life

imprisonment for the first crime and to 240 months imprisonment

on the second. The carjacking in question was the Hudson

incident and the firearm conviction was for use of a firearm

during the same robbery. The claim is foreclosed in this

circuit by United States v. Centeno-Torres, 50 F.3d 84, 85 (1st

Cir.), cert. denied, 516 U.S. 878 (1995), so we do not discuss

it further.

In a pure sentencing issue, O'Halloran and three other

defendants (all except McGonagle) object to the court's

computation of their sentences insofar as the court relied on a

cross-reference to the sentencing guideline for first-degree

murder. To understand the objection requires some background.

All of the defendants were held liable for various offenses

-34-
pertaining to the Hudson robbery and, for purposes of

calculating a guidelines sentence, these offenses were grouped

as closely related counts under U.S.S.G. § 3D1.2(b).

Ordinarily, the offense level for the group would be the base

offense level applicable to the highest level crime in the

group, modified to reflect any specific offense characteristics.

Id. § 3D1.3(a).

However, the robbery guideline, U.S.S.G. § 2B3.1, also

provides that "[i]f a victim was killed under circumstances that

would constitute murder under 18 U.S.C. § 1111 had such killing

taken place within the territorial or maritime jurisdiction of

the United States, apply § 2A1.1 (First Degree Murder)." Id. §

2B3.1(c)(1). The federal murder statute classifies murder as an

"unlawful killing . . . with malice aforethought" and then goes

on to describe as "murder in the first degree" a set of murders

perpetrated in various ways, including "murder . . . committed

in the perpetration of . . . robbery." 18 U.S.C. § 1111(a). 2

2
18 U.S.C. § 1111(a) provides that "[m]urder is the unlawful
killing of a human being with malice aforethought. Every murder
perpetrated by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated killing; or
committed in the perpetration of, or attempt to perpetrate, any
arson, escape, murder, kidnaping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, burglary, or robbery;
or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other than
him who is killed, is murder in the first degree."

-35-
The district court ruled that this was such a felony murder,

making applicable to all of the defendants the very high

guideline level for first-degree murder.

On first reading, section 1111 might appear to be

unclear and open to the construction that, for first-degree

murder, there must be both an unlawful killing "with malice

aforethought" (under the first sentence) and satisfaction of one

of the other conditions (under the second sentence) such as the

commission of that murder in the perpetration of a robbery.

However, the case law makes clear that the second sentence is

definitional, that the statute was intended to adopt the felony

murder rule, and for a stated felony the "malice" element is

satisfied by the intent to commit the unlawful felony.3

The four defendants argue that the district court had

no basis for finding "malice aforethought" and wrongly shifted

to the defendants the burden of showing that they did not

intentionally cause the death of the guards. However, under the

felony murder rule adopted by section 1111's second sentence,

the killing of the guards in the Hudson robbery was first-degree

3 See United States v. Nichols, 169 F.3d 1255, 1272 (10th
Cir.), cert. denied, 120 S. Ct. 336 (1999); United States v.
Harris, 104 F.3d 1465, 1474 (5th Cir. 1997); United States v.
Poindexter, 44 F.3d 406, 409-10 (6th Cir.), cert. denied, 514
U.S. 1132 (1995); United States v. Thomas, 34 F.3d 44, 48-49 (2d
Cir.), cert. denied, 513 U.S. 1007 (1994).

-36-
murder by those who perpetrated the robbery, regardless of who

pulled the trigger or any individual intent. The district

judge's comments relating to burden appear, in context, to have

been an offer to consider a downward departure based on a

showing that any individual defendant did not intend to commit

murder.4

In the end, the district court did grant a downward

departure to McGonagle on the ground that the jury, in

acquitting him of the carjacking, had established that he was

not present when the murders were committed and bore some lesser

degree of responsibility--a ruling that the government has not

appealed. The other four defendants appeal from the district

court's failure to grant them a downward departure, see U.S.S.G.

§ 2A1.1, cmt. n.1; but the denial of a departure is unreviewable

unless the court misapprehends its authority. 18 U.S.C. §

3742(e), (f); United States v. Serrano-Osorio, 191 F.3d 12, 15

(1st Cir. 1999).

In addition to prison sentences, the district court

imposed a $250,000 fine on each of the five defendants. The

guidelines provide that fines should ordinarily be imposed

"except where the defendant establishes that he is unable to pay

4
After referring to the need for "an affirmative showing" by
defendants, the court continued "[n]ow if you want a departure,
you bear the burden of showing why a departure is justified."

-37-
and is not likely to become able to pay any fine." U.S.S.G. §

5E1.2(a). Here, the defendants reported no appreciable assets

but the district judge was not persuaded, pointing out that

substantial robbery proceeds had not been accounted for and that

the defendants might also earn significant sums through

interviews and the sale of literary rights. Their objection on

appeal is confined to the claim that they lacked an ability to

pay.

The district court's determination on ability to pay

is a factual one reviewed only for clear error, United States v.

Favorito, 5 F.3d 1338, 1339 (9th Cir. 1993), cert. denied, 511

U.S. 1006 (1994), and the burden was on defendants to prove

their inability to pay. United States v. Peppe, 80 F.3d 19, 22

(1st Cir. 1996). Here, the fact that the defendants had stolen

more than the amount of their fines and failed to account for a

substantial portion of the money is enough for us to sustain the

district court. That the defendants denied that they had any

money created at best a credibility contest and the court was

free to disbelieve the self-interested and general denials

offered by the defendants.

New trial motion. The final issue pressed on this

appeal is the defendants' claim that the district court erred in

denying their second motion for a new trial. The background for

-38-
the motion was this: John Burke, Stephen Burke's brother,

pleaded guilty during trial to conspiracy to commit a robbery in

Seabrook, New Hampshire. 18 U.S.C. § 1951. The government

agreed to dismiss the remaining counts against John Burke at

sentencing. John Burke then testified for the government at

trial.

After the remaining five defendants were convicted, the

government moved to dismiss the conspiracy charge to which John

Burke had pled guilty, and then for unrelated reasons sought to

withdraw the motion. Based on what they learned, the defendants

then filed a new trial motion asserting that before John Burke

had testified against them, he and the government had discussed

the possible dismissal of the federal charge against him as a

reward for helpful testimony. This, said the defendants, was

dramatic information that should have been disclosed under Brady

v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405

U.S. 150 (1972), as useful impeachment evidence.

In fact, nothing in the record indicates that the

prosecutor discussed with John Burke prior to his testimony the

possible outright dismissal of the federal charge against him.

Rather, it appears that John Burke had only the usual

generalized expectation that the government would consider some

form of leniency or other assistance to him. On cross-

-39-
examination of John Burke at trial, his hope and desire for some

kind of reward was amply established. However, in the post-

trial proceedings, the government conceded to the district judge

that it had ruled nothing out and was always free to ask for

dismissal of all charges or any other benefit.

In a written order resolving the new trial motion, the

district court said that the government "although not compelled

by Brady" should as a matter of "better practice" have revealed

the possible dismissal option "if, before [John] Burke

testified, the prosecutors even remotely considered the

possibility that they would seek to dismiss all charges against

[him] . . . ." However, the district judge ruled that even if

this obligation existed, a new trial was not warranted because

it was not "reasonably probable" that the disclosure would have

altered the verdict. Strickler v. Greene, 119 S. Ct. 1936, 1952

(1999).

Without deciding whether the government was obligated

to disclose more than it did (the facts are somewhat

idiosyncratic), we find that the district court did not abuse

its discretion in denying a new trial. United States v. Wright,

625 F.2d 1017, 1019 (1st Cir. 1980). The evidence against the

defendants was substantial and rested on a number of witnesses,

much forensic evidence, and a series of admissions and co-

-40-
conspirator statements. Further, John Burke was extensively

impeached by questioning about his expectations of lenient

treatment, as well as other subjects that might fairly cast

doubt on his veracity. The outcome would not have been changed

by "the possibility" of a reward even more generous than usual.

The judgments of conviction and sentence as to each of

the defendants is affirmed except that McDonald's sentence on

the drug-user-in-possession count, 18 U.S.C. § 922(g)(3), is

vacated and remanded to the district court with instructions to

merge the sentence with that imposed for the felon-in-possession

count, id. § 922(g)(1), and with no separate mandatory

assessment fee.

It is so ordered.

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