USCA1 Opinion
October 4, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1369
UNITED STATES,
Appellee,
v.
ROBERT R. GIRARD,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Kara M. Fay on brief for appellant. ___________
Sheldon Whitehouse, United States Attorney, and Andrew J. Reich, __________________ ________________
Assistant United States Attorney, on brief for appellee.
____________________
___________________
Per Curiam. Appellant-defendant Robert R. Girard __________
appeals from his conviction after a jury trial of
intimidating and using physical force against a witness in
retaliation for past testimony and to prevent future
testimony in an official proceeding, in violation of 18
U.S.C. 1512(b) and 1513(b). We affirm the conviction.
I. Failure to Grant Continuance to Review Jencks ____________________________________________________
Material "A trial court has wide discretion to grant or ________
deny a request for continuance. 'Only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel' and would amount to an abuse of that
discretion." United States v. Brand, 80 F.3d 560, 564 (1st _____________ _____
Cir. 1996)(citation omitted). In determining whether there
has been an abuse of discretion, this court should consider
"appellants' special reasons, plus relevant factors such as
the amount of time needed for effective preparation and the
amount actually available, diligence in preparing for trial
and whether the defense contributed to its perceived
predicament, the likely utility of a continuance,
inconvenience to the court, opposing party, and witnesses,
and any unfair prejudice caused by the denial." Id. ___
"The Jencks Act by its terms limits disclosure of the
disputed information until after a witness' direct testimony.
18 U.S.C. 3500(a). The district court then, 'in its
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discretion, upon application of [the] defendant, may recess
proceedings in the trial for such time as it may determine to
be reasonably required for the examination of such statement
by said defendant and his preparation for its use in the
trial.' 18 U.S.C. 3500(c)." United States v. Arboleda, 929 _____________ ________
F.2d 858, 863(1st Cir. 1991).
Here, appellant contributed to his own predicament by
failing to request a continuance prior to cross-examination
or at any time during Francisco's testimony. Although
defense counsel was given the Jencks material before the
start of Francisco's cross-examination, appellant did not
request a continuance to review the transcripts until after
the government had begun direct examination of its next
witness. Moreover, appellant has failed to show "'a
particular detriment suffered as a result of delayed
disclosure.'" Id. at 864. In light of the considerable __
evidence linking appellant to the assault on Francisco, the
court's refusal to grant a continuance -- even if it
precluded cross-examination on Francisco's allegedly
inconsistent testimony about the color of the car -- did not
seriously prejudice the defense.
II. Failure to Read Back Testimony ______________________________
"[W]e have long and repeatedly held that rereading
testimony during jury deliberations rests in the presider's
sound discretion." United States v. Akitoye, 923 F.2d 221, _____________ _______
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226 (1st Cir. 1991). In Akitoye, we ruled that the district _______
court had not abused its discretion in denying the jury's
specific request for testimony to be read back. We
emphasized that "[t]he trial was brief and the testimony
fresh in the jurors' minds, a circumstance which ordinarily
lessens the need for rereading." Id. at 226. We also noted ___
that the request was "broad and general -- not 'well
focused.'" Id. ___
The factors supporting the denial of a reread in Akitoye _______
were also present in this case. The trial in the instant
case lasted for less than two days. The testimony that the
jury sought to review had been given only the day before.
Although defense counsel suggested that the jury might want
to further focus its request, the jury did not pick up on the
suggestion. Nor did defense counsel specifically request
that the jury be questioned regarding the particular area of
confusion that had led to the transcript request. Moreover,
the jury in this case never specifically requested a read
back once it was told that the transcript was not available.
There was no abuse of discretion.
III. Sufficient Evidence of Knowledge ________________________________
Appellant argues that "the prosecution failed to prove
'knowledge' of any degree that the Appellant was aware that
Francisco implicated the Appellant in any federal proceeding
or that any federal matter was pending." Under 18 U.S.C.
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1512(b), it is unlawful to "knowingly use[] intimidation or
physical force [or to threaten] . . . another person, with
intent to . . . influence, delay or prevent the testimony of
any person in an official proceeding." "[A]n official
proceeding need not be pending or about to be instituted at
the time of the offense." 18 U.S.C. 1512(e)(1). "Both a
federal trial and a federal grand jury investigation are
'official proceedings' within the meaning of the statute."
United States v. Frankhauser, 80 F.3d 641, 651 (1st Cir. _____________ ___________
1996).
"Section 1513(b) requires proof of (1) knowing
engagement in conduct; (2) either causing or threatening to
cause, bodily injury to another person; (3) with intent to
retaliate against any person for, inter alia, providing
information relating to the commission of a federal offense."
United States v. Paradis, 802 F.2d 553, 562 (1st Cir. 1986). ______________ _______
Therefore, to prove intent to retaliate against a witness, it
is necessary to prove knowledge by the defendant that the
witness provided information relating to the commission of a
federal offense.
"On appeal, [this court] review[s] a challenge to the
sufficiency of the evidence under a familiar standard. The
evidence must be viewed 'in the light most favorable to the
government, drawing all legitimate inferences and resolving
all credibility determinations in favor of the verdict.'
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Thus probed, the verdict must be upheld if any rational trier
of fact could have found the elements of the offense beyond a
reasonable doubt." United States v. Victor, 973 F.2d 975, 977 _____________ ______
(1st Cir. 1992)(citations omitted).
In this case, there was sufficient evidence from which
the jury could have found beyond a reasonable doubt both that
appellant was aware of Francisco's past cooperation with the
federal authorities and that appellant at least expected
there to be a future federal proceeding. In the context of
the evidence as a whole, appellant's statements to Francisco
on August 15, 1995, were "direct evidence that [the
defendant] in fact expected a grand jury investigation and/or
a trial in the foreseeable future, and that his intent was to
[prevent the witness from testifying at] such a proceeding or
proceedings." Frankhauser, 80 F.3d at 652. Appellant is not ___________
entitled to relief on his insufficiency of the evidence
claim.
IV. Ineffective Assistance of Counsel _________________________________
"To obtain a reversal on the basis of ineffective
assistance of counsel a defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the factfinder would have had a reasonable doubt
respecting guilt." United States v. Palow, 777 F.2d 52, 57 ______________ _____
(1st Cir. 1985), cert. denied, 475 U.S. 1052 (1986). ______________
Appellant raised the ineffective assistance claim before the
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district court in his motion for a new trial. The district
court ruled that appellant had failed to claim prejudice
"other than to say that somehow Mr. Williams' performance
fell below the performance one would expect of an attorney
under the circumstances." We agree with the district court
that appellant has failed to demonstrate prejudice.
Accordingly, we need not reach the issue of whether counsel's
performance was deficient.
A. Failure to Cross-Examine Francisco Regarding ___________________________________________________
Inconsistencies in Testimony on the Color of the Car. There ______________________________________________________
was no prejudice from this failure for the reasons discussed
above in connection with the court's failure to grant a
continuance. Viewed in the context of the evidence as a
whole, the alleged inconsistency does not raise a reasonable
doubt that if the jury had been confronted with that
inconsistency, it would have acquitted appellant.
B. Conflict Between Attorney and Client. Appellant's _____________________________________
second ineffective assistance argument is that the trial
court erred in not determining the need for a hearing
regarding the breakdown in communication between appellant
and his attorney. "Where the accused voices objections to the
appointed counsel, the trial court should inquire into the
reasons for the dissatisfaction." United States v. Allen, 789 _____________ _____
F.2d 90, 92 (1st Cir. 1986), cert. denied, 479 U.S. 846 _____________
(1986). In this case, however, appellant did not voice any
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objections to counsel and, therefore, the court was not
obliged to make an inquiry into the cause of dissatisfaction.
Although appellant never requested a continuance or
substitution of counsel, the district court's response to
defense counsel's comments at the start of the second day of
trial implied that it had found that there was not a "total
lack of communication preventing an adequate defense." United ______
States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995), cert. ______ ______ _____
denied, __ U.S. __, 116 S. Ct. 2580 (1996). That implied ______
finding is supported by the record. Defense counsel
hesitated even to characterize the difference of opinion as a
disagreement. The transcript of the second day of trial
indicates appellant and his attorney were communicating
effectively. The district court did not err.
C. Failure to Call Kenneth Landry as a Witness. ____________________________________________
"The decision whether to call a particular witness is
almost always strategic, requiring a balancing of the
benefits and risks of the anticipated testimony." Lema v. ____
United States, 987 F.2d 48, 54 (1st Cir. 1993). Appellant ______________
has failed to show how the failure to call Landry "deprived
him of a 'viable defense.'" United States v. Porter, 924 F.2d _____________ ______
395, 397 (1st Cir. 1991). Testimony by Francisco and
Gonzvales that the Subaru was "dark-colored" does not
contradict Landry's statement that the car was black. The
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failure of Francisco and Gonzvales to comment on the
noisiness of the Subaru is inconsequential in light of the
considerable other evidence linking appellant to the events
at Francisco's shop on August 15, 1995. The ineffective
assistance of counsel claim fails.
For all of the above reasons, appellant's conviction is
summarily affirmed. See Loc. R. 27.1. __________________ ___
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