United States v. Brown

United States Court of Appeals
For the First Circuit

No. 09-2402

UNITED STATES OF AMERICA,

Appellee,

v.

ELAINE BROWN,

Defendant, Appellant,

No. 10-1081

UNITED STATES OF AMERICA,

Appellee,

v.

EDWARD BROWN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
 Leslie Feldman-Rumpler for appellant Elaine Brown.
Dean Stowers, with whom Stowers Law Firm was on brief, for
appellant Edward Brown.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney was on brief, for appellee.

January 19, 2012
 THOMPSON, Circuit Judge. A nine-month long stand-off

between United States Marshals (the "Marshals") and husband and

wife team, Edward and Elaine Brown, resulted in the Browns'

criminal convictions. Edward and Elaine1 each appealed and we

consolidated. Both claim that the district court committed a

myriad of errors justifying reversal. After careful consideration,

we reject each argument and affirm.

BACKGROUND2

A. The Tax Evasion Trial

To put this appeal in context, we begin with another

criminal matter involving the Browns. In April 2006, Edward and

Elaine were indicted by a federal grand jury on charges relating to

their failure to pay federal income tax - an omission that stemmed

from the Browns' belief that they were not legally obligated to do

so. The Browns were tried and in January 2007, the jury returned

a verdict convicting Edward and Elaine of conspiracy, federal tax

crimes, and other financial crimes. Edward, who had stopped

attending trial after only a few days, was convicted in absentia.

Both Edward and Elaine were sentenced to just over five years in

prison. Neither Brown attended the sentencing. Nor did they

surrender to federal authorities.

1
For ease of reference we refer to the Browns by their first
names.
2
Further details can be found in United States v. Gerhard,
615 F.3d 7 (1st Cir. 2010).

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 Therefore, Stephen Monier, United States Marshal for the

District of New Hampshire, sent the Browns a letter urging them to

surrender. The Browns had not only been sentenced to prison but

both had warrants out for their arrest - Edward for failing to

appear at trial and Elaine for violating the terms of her release.

The Browns did not comply with Monier's request and remained holed

up in their secluded Plainfield, New Hampshire home, situated on an

approximately one-hundred-acre tract of land. And so the Marshals

hatched a plan for their arrest.

B. The Arrest

Because the Marshals had information that the Browns were

armed and making threats, they elected not to simply enter the

property and arrest them. Instead the Marshals conducted

surveillance, which revealed a pattern of Edward traveling daily to

the top of his driveway on an all-terrain vehicle and picking up

his mail. The Marshals decided to attempt an arrest during this

jaunt to the mailbox. The plan failed.

On June 7, 2007, Marshals were in place to make the

arrest when Daniel Riley, a friend of the Browns came strolling up

the driveway. Riley was alerted to the Marshals hiding in the

woods, apparently by the Browns' dog whom he was walking. Riley

fled despite being ordered to stop. Marshals fired non-lethal

ammunition at Riley but missed, though he was eventually subdued

with a taser. Edward heard the commotion and appeared at the tower

on top of his house with a .50 caliber rifle, but he did not fire.

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 After the botched attempt to arrest Edward, the Marshals

revised their approach. By that time, the Browns' case had gained

national notoriety and supporters of the couple were flocking to

their home. The Browns themselves were hosting festival-type

gatherings at their home publicizing their resistance. The

Marshals planned to take advantage of this by posing undercover as

supporters and accomplishing the arrests in this capacity.

In October 2007, undercover Marshals made contact with

the Browns through a confidential informant and learned that the

couple wanted to retrieve some possessions from Elaine's dental

office in Lebanon, New Hampshire.3 On October 4th, undercover

Marshals retrieved the property and brought it to the Browns'

Plainfield home. The Marshals unloaded the property into the

garage as Edward leveled an assault rifle at them, all the while

expressing a reticence to trust people he did not know. Edward

however eventually warmed up to the undercover officers and

replaced the assault rifle with a handgun in his waistband and

invited them to join him for beers and pizza. The group hung out

on the Browns' front porch and at some point Elaine joined them,

also carrying a handgun. They chatted about the couple's legal

woes including their thus far successful evasion of arrest. When

asked by one of the deputies how they had managed this feat, Edward

responded that authorities were afraid to arrest him because if

3
Elaine had a long career as a dentist prior to becoming a
fugitive from the law.

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they did people would die, including the "Marshal," "Chief of

Police," and "Sheriff."

The gathering continued in this fashion until one officer

was able to maneuver himself between Edward and Elaine, at which

time he gave a predetermined signal and the Marshals pounced.

Neither Edward nor Elaine went quietly but eventually both were

subdued and cuffed. Following their arrests, agents searched the

Brown property and found a vast supply of explosives, firearms, and

ammunition, including rifles, armor piercing bullets, pipe bombs,

and bombs nailed to trees.

C. The Conspiracy Trial

The nine-month long stand-off resulted in the Browns'

indictment. Both Edward and Elaine were charged with: (1)

conspiring to prevent federal officers from discharging their

duties under 18 U.S.C. § 372; (2) conspiring to assault, resist or

impede federal officers under 18 U.S.C. §§ 111(a) and (b) and 371;

(3) using or carrying a firearm or destructive device during and in

relation to a crime of violence; and possessing a firearm or

destructive device in furtherance of a crime of violence under 18

U.S.C. § 924(c)(1)(A) and (B); (4) being a felon in possession of

a firearm under 18 U.S.C. § 922(g)(1); (5) obstruction of justice

under 18 U.S.C. § 1503; and (6) failing to appear at sentencing

under 18 U.S.C. § 3146. Edward was also charged with failing to

appear at trial in violation of 18 U.S.C. § 3146. After an eight

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day jury trial, Edward and Elaine were convicted on all counts.4

Edward was sentenced to 37 years in prison and Elaine to 35.

This appeal followed. In it, Edward and Elaine each

challenge their convictions on multiple but distinct grounds.5 We

address each party's arguments separately.

ANALYSIS

A. Edward Brown

1. Competency to Stand Trial

Although Edward's counsel did not raise his client's

competency as an issue pre-trial,6 the trial judge addressed it sua

4
The relevant particulars of the trial are discussed in our
analysis of the Browns' claimed errors.
5
Edward and Elaine each sought to join the other's arguments
pursuant to Fed. R. App. P. 28(i); however, they have not
effectively done so. Adoption by reference cannot occur in a
vacuum and the arguments must actually be transferable from the
proponent's to the adopter's case. See United States v. Casas, 425
F.3d 23, 30 n.2 (1st Cir. 2005). In this context, issues that are
averted to in a perfunctory manner absent developed argumentation
are waived. See id. Here Edward's attempt to join Elaine's
arguments was textbook perfunctory - he offered no explanation as
to why her arguments pertained to him. As for Elaine, she simply
stated that three of Edward's arguments are "equally applicable to
both defendants." This treatment is far too lackadaisical. Thus,
the Browns' attempted arguments by reference are forfeited. Elaine
did however offer some reasoning as to why Edward's competency
argument pertained to her - namely that the district court's
holding forced her to proceed to trial with an incompetent co-
defendant. We need not decide whether this qualifies as developed
argumentation, as we reject Edward's competency claim.
6
Defense counsel did question Edward's competency post-trial
during the sentencing phase. We discuss more fully below.

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sponte.7 The court did so by questioning Edward at a pre-trial

status conference. It did not hold a formal competency hearing or

order a competency evaluation. After the status conference, the

court issued a written decision declaring Edward competent to stand

trial. The court held that although Edward embraced an

unconventional belief system, he demonstrated an understanding of

the nature and consequences of the proceedings and an ability to

consult with counsel. In making this finding, the trial judge

considered in-person interactions with Edward, the record in this

case, and the record in Edward's previous tax evasion case. On

appeal, Edward argues that the district court erred by finding him

competent without the benefit of a formal competency hearing or

competency evaluation and was wrong in its conclusion. We

disagree.

To begin with, it is well settled that the conviction of

a person legally incompetent to stand trial violates due process.

See Johnson v. Norton, 249 F.3d 20, 26 (1st Cir. 2001) (citing Pate

v. Robinson, 383 U.S. 375, 378 (1966)). To challenge the district

court's finding of competency, Edward "must present facts

sufficient to positively, unequivocally and clearly generate a

real, substantial and legitimate doubt as to [his] mental

7
The way this came about was that Elaine's counsel filed a
motion questioning her competency to stand trial. The trial judge
assessed Elaine's competency at a status conference and on his own
initiative also assessed Edward. The judge found both Edward and
Elaine competent to stand trial. Only Edward contests this
finding.

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competence." United States v. Collins, 949 F.2d 921, 927 (7th Cir.

1991) (internal quotation marks and citation omitted) (alteration

in original). "When there has been no hearing, and no examination

of the defendant whatsoever, the appellate court reviews the

district court's findings comprehensively." United States v.

Lebron, 76 F.3d 29, 32 (1st Cir. 1996).

The test for competency is whether the defendant first

has sufficient present ability to consult with counsel with a

reasonable degree of rational understanding, and second has a

rational and factual understanding of the proceedings against him.

See United States v. Ahrendt, 560 F.3d 69, 74 (1st Cir. 2009)

(citing Dusky v. United States, 362 U.S. 402, 402 (1960) (per

curiam)). "The 'understanding' required is of the essentials - for

example, the charges, basic procedure, possible defenses - but not

of legal sophistication." Robidoux v. O'Brien, 643 F.3d 334, 339

(1st Cir. 2011). A district court must sua sponte order a

competency hearing if there is reasonable cause to believe that a

defendant is mentally incompetent. See Ahrendt, 560 F.3d at 74

(citing 18 U.S.C. § 4241(a)). Thus we query whether there was

reasonable cause to believe Edward incompetent. After scouring the

record, we answer this question in the negative. Based on the same

reasoning, we find no fault in the court's determination of

competency.

We start with Edward's ability to consult with counsel.

While it appears that in the beginning Edward had some misgivings

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(based upon his unique legal philosophies) about whether his

attorney could adequately represent him,8 a review of the record

reveals no indication that Edward was unable to consult with his

attorney during this representation. In particular, when Edward's

attorney sought to withdraw just moments prior to the start of

trial based on a communication breakdown, the court denied the

motion, finding that neither counsel nor Edward could articulate

any specifics regarding the alleged breakdown. It is also

significant that once trial was underway Edward's attorney, who

more than any other courtroom player "enjoys a unique vantage for

observing whether [his] client is competent," United States v.

Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005), did not raise any

concern about Edward's competency. Further, when Edward's attorney

moved for a post-trial, pre-sentencing competency evaluation, he

acknowledged Edward's ability to consult with him during trial,

stating that Edward "was minimally able to assist counsel in the

preparation and presentation of a defense" and only after trial did

things drastically change.9

We conclude that although Edward's relationship with his

attorney might not have always been genial, there is no evidence

8
Edward saw counsel as representative of a "legal fiction"
and as "a foreign agent of the Bar Association."
9
It bears noting that after this alleged deterioration of
Edward's mental state, he was in fact deemed competent following an
extensive psychiatric evaluation and a full competency hearing
where the examining psychologist was subject to direct and cross-
examination.

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that Edward could not consult with him "'with a reasonable degree

of rational understanding.'" Ahrendt, 560 F.3d at 74 (quoting

Dusky, 362 U.S. at 402). We do not think the district court erred

when it found likewise.

As for Edward's understanding of the nature of the

proceedings against him, we also concur with the district court's

determination. To be sure, Edward made comments that on their face

could lead one to question whether he even understood what was

happening.10 Yet, he also made statements that evidenced a rational

and factual understanding of the legal system.11

Edward further made a significant number of comments that

reflected his atypical legal beliefs12 and overall distrust of the

10
Edward stated that he thought the purpose of his arraignment
was to release him and his wife but instead it was "going 180
degrees" from what he anticipated. When asked at the status
conference if he understood the consequences facing him, Edward
said "I assume. I assume. I don't know what it all means."
11
Edward exhibited an understanding of the legal players: (1)
judge ("he was to make sure both sides behaved themselves and
followed the rules or the decorum of that courtroom" and make sure
that defendant's "rights and privileges were protected"); (2) jury
("assumed" that the jury was to make impartial decisions based on
the evidence); and (3) prosecutor (would "dig out the truth").
12
If it could be given a label, Edward's belief system appears
most akin to the so-called sovereign citizen movement whose
proponents believe they are not subject to federal or state
statutes or proceedings, reject most forms of taxation as
illegitimate, and place special significance in commercial law. See
Wikipedia, http://en.wikipedia.org/wiki/Sovereign_citizen_movement
(last visited January 13, 2012). Edward's comments reflected this
philosophy. He repeatedly indicated that he did not recognize the
district court or the laws it operated under. He also referred to
himself and Elaine as "secured party creditors" and stated that a
criminal case is really a "commercial transaction." He referred to

-11-
legal system.13 Viewed in context, these words and behaviors

(though often bizarre) did not evidence confusion on Edward's part

about the legal proceedings against him, but rather reflected

firmly held, idiosyncratic political beliefs punctuated with a

suspicion of the judiciary. Moreover, while some of these beliefs

reflected a misunderstanding of the law (namely that the district

court did not have jurisdiction over him and that it was a

commercial court) they do not render Edward incompetent to stand

trial. See Robidoux, 643 F.3d at 339 (finding that although

defendant's belief that the court had no jurisdiction was a

misunderstanding of the law, it was "a common illusion among

certain groups alienated from society" and did not prevent him from

"knowing that the government has put him on trial, recognizing the

procedures to be used, or appreciating advice that lack of

authority claims will not constitute an effective defense"). In

fact, Edward's contention that courts have no authority over him is

not a new one for federal judges. See, e.g., id. at 339 n.4

(gathering cases); United States v. Gerhard, 615 F.3d 7, 25 (1st

Cir. 2010). As we have previously stated, "[s]ometimes these

the court as "nothing but a commercial court" and "one of the
biggest businesses in the country."
13
Edward expressed a belief that most courts do not follow
their own rules but just make them up as they go along. He also
opined that the prosecutor and judge were in collusion and together
influenced the jury's decision. Of his previous case, Edward said
he "realized that we were not going to get a fair or equitable
trial."

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beliefs are sincerely held, sometimes they are advanced only to

annoy the other side but in neither event do they imply mental

instability or concrete intellect . . . so deficient that trial is

impossible." Robidoux, 643 F.3d at 339 (quoting United States v.

James, 328 F.3d 953, 955 (7th Cir. 2003)).

To sum up, after a comprehensive review of the district

court's findings, we do not find reasonable cause to believe Edward

mentally incompetent. Therefore the district court was not

required to sua sponte order a formal competency hearing and

evaluation. Edward's first argument is without merit; we turn to

his next.

2. Tax Trial and Tax Law Evidence

At trial, Edward sought to present evidence of his

beliefs that his previous tax trial was a sham and that tax laws

are unconstitutional. Edward claimed this evidence would show that

he lacked the mens rea or intent for the two conspiracy counts.14

Over the defense's objection, the trial judge excluded the evidence

as irrelevant. Before this court, Edward claims this exclusion

violated his constitutional right to defend himself. We review

this constitutional question de novo. See Sony BMG Music Entm't v.

Tenenbaum, 660 F.3d 487, 496 (1st Cir. 2011).

14
Edward also argued that the evidence was relevant to
establish a justification defense; however, he has abandoned this
argument on appeal.

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 Whether it is rooted in the Fourteenth Amendment or in

the Sixth Amendment, "the Constitution guarantees criminal

defendants 'a meaningful opportunity to present a complete

defense.'" Brown v. Ruane, 630 F.3d 62, 71 (1st Cir. 2011)

(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). However, an

"accused does not have an unfettered right to offer testimony that

is incompetent, privileged, or otherwise inadmissable under

standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410

(1988). Edward's proposed defense was that he lacked the mens rea

or intent15 to commit the substantive offenses underlying the

conspiracy counts: (1) preventing the Marshals from discharging

their official duties (Count 1, 18 U.S.C. § 372) and (2)

assaulting, resisting, or impeding the Marshals while engaged in

their official duties (Count 2, 18 U.S.C. §§ 111, 371). In other

words: according to Edward, he could not have intended to thwart

the Marshals in the performance of their "official duties" because

he did not believe they were engaged in "official duties" since he

considers tax laws unconstitutional and therefore his tax trial

conviction illegitimate. This circuitous logic is faulty.

Edward was well aware that he was convicted at trial and

that there was a warrant out for his arrest. Therefore his belief

that the Marshals lacked authority to arrest him (assuming the

15
See United States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st
Cir. 2010) (to establish voluntary participation in a conspiracy
there must be an intent to agree and an intent to commit the
substantive offense).

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belief was genuinely held) would have been based on an assumption

that the conviction and warrant were invalid - the invalidity

stemming from the supposed sham nature of the tax trial. The

problem with this reasoning is that it presupposes that the

constitutionality of Edward's conviction, and the validity of the

warrant, impact whether the Marshals were engaged in "official

duties." They do not, and thus Edward's mens rea as to these facts

is irrelevant. Whether a federal officer is engaged in official

duties "does not turn on whether the law being enforced is

constitutional or applicable to the defendant, or whether the levy

order being enforced was validly obtained; rather it turns on

whether the federal officer is acting within the scope of what [he]

is employed to do . . . or is engaging in a personal frolic of his

own." United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009)

(internal quotation marks and citation omitted) (interpreting the

phrase "official duties" in 18 U.S.C. § 111(a)).

There was more than sufficient evidence from which a fact

finder could conclude that Edward knew that the Marshals were

engaged in official duties. Similarly, there was more than enough

evidence that Edward intended to prevent the Marshals from

discharging those official duties and intended to assault, resist,

or impede them in the performance of such duties (e.g., the arsenal

of guns and bombs Edward accumulated and peppered his property

with, the concerts and media statements publicizing his resistance,

and Edward's statements that law enforcement officers would die if

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they tried to capture him). And as we said - Edward's subjective

beliefs about the legitimacy of tax laws and his tax trial were

irrelevant as to whether he intended to commit these offenses.16

Accordingly, the court did not err in disallowing the evidence.

This signals an end to Edward's constitutional claim since the

constitutional right to present a defense is not impaired "where

the evidence proffered has been properly ruled irrelevant." United

States v. Vázquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008); see also

United States v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001) (a

criminal defendant's "wide-ranging right to present a defense . .

. does not give him a right to present irrelevant evidence")

(internal citation omitted). We proceed to Edward's final

argument.

16
Edward offers a somewhat confusing alternate argument.
Essentially, he claims that even if the evidence was not relevant
as to his intent to commit the substantive offenses, it was
relevant to show that he did not "willfully" join the conspiracy -
the term used by the trial judge in the jury instructions. Edward
seems to argue that by using the term "willfully" the judge created
some additional or heightened burden. We do not see it this way.
This court has held that the meaning of "willfully" in the context
of a criminal conspiracy is "that the defendant intended to join in
the conspiracy and intended the substantive offense to be
committed." United States v. Gonzalez, 570 F.3d 16, 24 (1st Cir.
2009) (internal quotation marks and citation omitted). The trial
judge's instruction reflected this definition. See id. (finding a
proposed jury instruction identical to the one given here to
accurately reflect the meaning of "willfully"). Because the
court's use of the term "willfully" did not result in an added or
heightened intent requirement, we need not embark on any additional
analysis.

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 3. Hearsay Statements

Edward contends that the following statements were

improperly excluded at trial as hearsay: (1) Edward's statement to

Marshal Stephen Monier that he would turn himself in if someone

would show him the relevant law; (2) Edward's statement to Deputy

Marshal Gary DiMartino that the judge in his tax trial would not

allow him to present evidence; (3) Edward's testimony that the

judge in his tax trial cleared the courtroom to make sure no one

heard Edward's witnesses or evidence; and (4) Edward's statements

made during a radio interview expressing a belief that the Marshals

were trying to kill him and so he had to defend himself.17 Edward

argues that these statements were not hearsay because they were not

offered for the truth of the matter asserted, but rather to show

that Edward lacked the mens rea or intent for the underlying

conspiracy counts. Review of preserved objections to rulings

concerning admissibility of evidence is for abuse of discretion.

See United States v. Epstein, 426 F.3d 431, 437 (1st Cir. 2005).

We need not embark on any protracted hearsay analysis as

the proffered statements flunk the relevancy test. As discussed at

length above, Edward's subjective beliefs about the legitimacy of

tax laws and his conviction, and his paranoia toward the Marshals,

17
Edward makes an alternate argument that his radio interview
statements are admissible under the rule of completeness, Federal
Rule of Evidence 106. This rule is inapplicable for a variety of
reasons, including lack of any predicate statements. See United
States v. Verdugo, 617 F.3d 565, 579 (1st Cir. 2010).

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were irrelevant to the conspiracy counts or any viable defense

thereof. The disputed statements were offered only as evidence of

those personal beliefs and therefore were properly excluded. Since

we may affirm a district court's evidentiary ruling on any ground

apparent in the record, we reject Edward's hearsay argument. See

United States v. Meserve, 271 F.3d 314, 327 (1st Cir. 2001). The

court did not abuse its discretion in excluding the evidence. This

concludes our analysis of Edward's arguments. We turn to Elaine's.

B. Elaine Brown

1. Cumulative Error Doctrine

Elaine argues that reversal is warranted because multiple

evidentiary errors occurred at trial. In her opening brief, Elaine

sets forth the errors in one undelineated heap and it is unclear

whether she is claiming that each supposed error warrants reversal

independently or only when taken together. Elaine clarified her

position somewhat in her reply brief when she referred to one of

the alleged errors as being part of a series, which taken together

warrant reversal.

Viewing Elaine's claim in the most positive light (and

charitably assuming that it has been adequately briefed and raised,

thus warranting consideration on the merits) it appears that

Elaine, without specifically saying so, is relying on the so-called

"cumulative error doctrine". See United States v. Colón-Díaz, 521

F.3d 29, 33 (1st Cir. 2008); United States v. Sepulveda, 15 F.3d

1161, 1195-96 (1st Cir. 1993). This doctrine is predicated on the

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theory that "[i]ndividual errors, insufficient in themselves to

necessitate a new trial, may in the aggregate have a more

debilitating effect." Sepulveda, 15 F.3d at 1195-96. Again

assuming that a cumulative error argument has been adequately

raised and briefed, we proceed to address the merits of each

claimed error. See, e.g., Román-Oliveras v. P.R. Elec. Power

Auth., 655 F.3d 43, 49 n.10 (1st Cir. 2011) (declining to find a

plaintiff's claim waived, even though his brief was "barely

adequate," when there was no prejudice in reaching the issue). But

see KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d 1, 25

(1st Cir. 2003) (finding that an appellant waives any issue not

adequately raised in the initial brief).

i. Testimony About Threats

Marshal Stephen Monier and Marshal David Robertson were

called by the government to testify about the Browns' capture.

Elaine takes issue with both witnesses' testimony that the Browns

were making threatening statements toward law enforcement prior to

their arrest. She claims the testimony was not based on personal

knowledge and was hearsay.

The statements at issue are: (1) when asked why Marshals

did not just drive on to the Brown property and arrest them, Monier

responded "[b]ecause our surveillance and information indicated to

us that they were armed . . . [t]hey were making statements"; (2)

when summarizing a letter he wrote the Browns, Monier indicated

that the couple "continued to make threatening statements"; and (3)

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when asked why Marshals used armored personnel carriers, Robertson

stated "[t]here were a number of statements made and threats made

toward law enforcement and other officials."

Different standards of review are in play. Elaine

contemporaneously objected to statement one and so we review the

court's decision to admit the statement for abuse of discretion.

See United States v. Polanco, 634 F.3d 39, 44 (1st Cir. 2011).

Prior to trial (in response to a motion in limine) Elaine objected

to the admission of any testimony from Monier that was hearsay or

not based on personal knowledge. Therefore our review of statement

two is also for abuse of discretion.18 See Polanco, 634 F.3d at 44.

Finally, Elaine did not object to statement number three and thus

we are in the plain error realm. See id.

Let us start with the personal knowledge issue. "A

witness may testify to a matter only if evidence is introduced

sufficient to support a finding that the witness has personal

knowledge of the matter." Fed. R. Evid. 602. Evidence of personal

knowledge can come in the form of the witness's own testimony. See

id. Testimony is "inadmissable under Rule 602 only if in the

proper exercise of the trial court's discretion it finds that the

witness could not have actually perceived or observed what he

18
The court explicitly denied Elaine's request to exclude
Monier's testimony and so Elaine's objection was properly preserved
for purposes of appeal. See Fed. R. Evid. 103(a) ("Once the court
makes a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an
objection . . . to preserve a claim of error for appeal.")

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testified to." United States v. Rodríguez, 162 F.3d 135, 144 (1st

Cir. 1998) (internal quotation marks and citation omitted).

Implicit in this standard is the requirement that we not indulge in

review by hindsight but consider what evidence was before the trial

judge at the time each of the three challenged statements was made.

We do so, beginning with Monier.

Prior to his making statement one,19 Monier's testimony

established the following. Monier was the United States Marshal

for the District of New Hampshire and was in command of the

operations to capture the Browns in 2006 for their tax crimes and

in 2007 following their convictions. Prior to the 2006 arrest,

Marshals collected information about the Browns and Monier assigned

deputies to conduct surveillance of the couple. When the Browns

failed to appear for trial, Monier's chief deputy Gary DiMartino

made telephone contact with them. Monier also indicated that prior

to the 2007 arrest, "[w]e were talking to the Browns" and urging

them to surrender. Prior to making statement two20 (in addition to

all the above testimony), Monier testified that Marshals were

monitoring the internet and media coverage of the Browns and that

the Browns were making statements to the media.

19
Monier: "[b]ecause our surveillance and information
indicated to us that they were armed . . . [t]hey were making
statements."
20
Monier: the Browns "continued to make threatening
statements."

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 This testimony does not compel a finding that Monier

"could not have actually perceived or observed" the threats.

Rodríguez, 162 F.3d at 144 (internal quotation marks and citation

omitted). Rather the evidence, up until that point, indicated that

Monier could have heard the threats from speaking with the Browns

directly, listening in on conversations of the Browns, or from

viewing videos of the Browns speaking to the media.21 As there was

an adequate foundation of personal knowledge, the trial judge did

not abuse his discretion in admitting Monier's testimony

(statements one and two).

Similarly an adequate foundation was laid for Robertson's

testimony (statement three).22 Prior to making the disputed

statement, Robertson testified that he was commander of the

Marshals Special Operations Group stationed in Virginia. His unit

was tapped to assist in the Browns' 2007 capture. They were

briefed on the on-going situation by the New Hampshire Marshals and

then gathered information. From then on, Robertson was in charge

of the entire tactical operation.

Admittedly the foundation here is somewhat more tenuous

than with Monier. But Monier's testimony came before Robertson's

21
Incidently, Elaine's counsel did not elicit any testimony
during Monier's cross-examination that would contradict this
inference and perhaps lend the previous testimony to a motion to
strike.
22
Robertson: "[t]here were a number of statements made and
threats made toward law enforcement and other officials."

-22-
and thus the trial judge might have reasonably concluded, at that

point in the proceedings, that Robertson could have listened to

recorded conversations or watched media coverage of the Browns

during his briefing from the New Hampshire Marshals. Further, we

are in plain error purview here and "under plain error review, we

have leeway to correct only the most egregious of unpreserved

errors." United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st

Cir. 2005). The trial court's failure to exclude this one

statement of Robertson's certainly does not qualify. This disposes

of Elaine's contention that the statements were not based on

personal knowledge.

Elaine's second argument is that the statements were

hearsay. The government's response is that the statements were not

offered to prove that the Browns were actually making threats but

only to show why the Marshals created such an elaborate arrest plan

and why this plan was reasonable. The district court took the same

view, repeatedly instructing the jury that testimony about the

Browns' threats was not offered for the truth of the matter

asserted but to show why the Marshals did what they did.

It is axiomatic that "an out-of-court statement, which

would be inadmissable hearsay if offered to prove the truth of what

was asserted in the statement, may be properly admitted to prove

other facts." United States v. Benitez-Avila, 570 F.3d 364, 368

(1st Cir. 2009). Those other facts however must be "relevant to an

issue in the trial" and "the potential prejudice resulting from the

-23-
likelihood that the jury might consider the statement for its

impermissible hearsay purpose [must] not unfairly outweigh its

proper probative value on the other question." Id.; see also Fed.

R. Evid. 403.

We agree that the three statements were not hearsay

because they were admitted solely to show why it was reasonable for

the Marshals to have such an intricate arrest plan. The

reasonableness of the arrest plan was "relevant to an issue in the

trial" because Elaine made it so. Benitez-Avila, 570 F.3d at 368.

Specifically, Elaine claimed during her opening statement that she

had to protect herself against what she believed was unlawful

government force - force her counsel referred to as "the same sort

of lethal government force as the civilian victims in the 1992

shooting of Randy Weaver's wife and son at Ruby Ridge, Idaho, and

of the 1993 government assault at the Branch Davidian complex in

Waco, Texas." Elaine's counsel conceded at oral argument that this

analogy suggests the Marshals were trying to kill the Browns or at

least that was how the Browns perceived it.

Because Elaine opened the door by questioning the

reasonableness of the Marshals' arrest plan during her opening

statement (though the court ultimately did not let her advance this

defense), the government had the right to introduce evidence to

counter her claim. See United States v. Landry, 631 F.3d 597, 603

(1st Cir. 2011) (affirming the district court's finding that

evidence of a defendant's earlier traffic stop was relevant and

-24-
admissible because the defendant opened the door during opening

statement by putting forth a good faith and computer error

defense). As a result, Monier and Robertson's testimony was

relevant. Cf. Benitez-Avila, 570 F.3d at 368-69 (hearsay testimony

the government offered to show that police had a reasonable basis

for investigating the defendant was not admissible, in part,

because the defendant did not challenge the reasonableness of the

investigation and therefore the testimony was irrelevant).

Further, the potential prejudice from this testimony is not

outweighed by its probative value, which was significant -

rebutting the argument that the Marshals were out to kill the

Browns. Our conclusion: the court did not abuse its discretion in

admitting statements one and two as non-hearsay, nor did it commit

plain error by admitting statement three.

To recap, a sufficient personal knowledge foundation was

laid for Monier and Robertson's testimony and the testimony was not

hearsay. Elaine's first argument under the cumulative error

doctrine fails. We move on to her next.

ii. Overview Testimony

Elaine contends that Marshal Monier gave improper

overview testimony. Prior to trial, Elaine objected to Monier

testifying as an overview witness, and thus we review for abuse of

discretion. See United States v. Rosado-Pérez, 605 F.3d 48, 54

(1st Cir. 2010). "Even if there was an error, however, we affirm

if it was harmless." Id.

-25-
 Generally speaking, a so-called "overview witness" is a

government agent who testifies in a criminal matter as the

prosecution's first witness (or at least as one of its earliest

witnesses) and provides an overview of the prosecution's case to

come. See, e.g., United States v. Flores-de-Jesús, 569 F.3d 8, 14

(1st Cir. 2009). We have considered the propriety of the practice

of using overview witnesses, and cautioned against its pitfalls, on

multiple occasions. See United States v. Meises, 645 F.3d 5, 18

(1st Cir. 2011); Flores-de-Jesús, 569 F.3d at 14; United States v.

Casas, 356 F.3d 104, 119-20 (1st Cir. 2004). We identified the

following potential ramifications of overview testimony as making

it inherently problematic: (1) the jury could be influenced by

statements of facts and credibility determinations not in evidence;

(2) later testimony could be different from what the overview

witness assumed; and (3) the jury may place greater weight on

evidence that they perceive has the imprimatur of the government.

See Flores-de-Jesús, 569 F.3d at 16-17; Casas, 356 F.3d at 119-20.

With these concerns in mind, we consider Monier's

testimony. Monier was called as the government's first witness.

After testifying about his job duties, Monier moved on to his

interactions with the Browns. He testified about the plan the

Marshals developed to arrest the Browns in 2006 for their tax

crimes and how the plan was executed. Monier explained how the

Browns failed to appear at the tax trial, the outcome of the trial,

and how Elaine violated her conditions of release - essentially

-26-
Monier gave background information on why warrants were issued. He

described the Marshals' plan for executing the warrants and also

briefly touched on the unsuccessful June 7th arrest attempt,

focusing on what he observed via video surveillance from the

command center. Monier moved on to his attempts to get the Browns

to surrender and the new plan to infiltrate their home posing as

supporters. He then gave a one-sentence long summary of the

arrest. Finally, Monier indicated that a post-arrest sweep of the

residence was performed but he did not testify about what was

found.

A careful review of this testimony reveals that it was

not improper overview. Monier oversaw the two operations to arrest

the Browns and his testimony involved events he observed and

orchestrated during this oversight. This type of "testimony is

permissible and 'valuable to provide background information.'"

Meises, 645 F.3d at 15 (quoting Flores-de-Jesús, 569 F.3d at 19).

Further, the government laid a sufficient personal knowledge

foundation for the testimony, distinguishing it from previous

overview testimony we have taken issue with. Cf. Meises, 645 F.3d

at 15 (DEA agent only learned of the inculpatory conduct he

testified to from an informant); Casas, 356 F.3d at 118-19 (DEA

agent's testimony was partially based on information he received

from a co-conspirator who did not testify).

Also significant is the fact that Monier did not express

an opinion as to the culpability of the Browns - a practice we have

-27-
found most troubling in this context. Specifically, we have

previously encountered instances where the government witness

essentially testified that the defendant was guilty of the crimes

charged. See Meises, 645 F.3d at 15 (finding improper overview

testimony when a DEA agent identified the defendants' individual

roles in a drug trafficking operation); Flores-de-Jesús, 569 F.3d

at 26 (finding inappropriate overview testimony when a DOJ agent

used a photographic chart to identify the defendants as members of

a drug conspiracy and to set forth their roles); Casas, 356 F.3d at

118-19 (finding improper overview testimony when a DEA agent

testified that defendants were members of a drug trafficking

organization that handled massive quantities of drugs). Monier

offered no such testimony.

Further, there is no danger of Monier's testimony

endorsing the testimony of later witnesses and thus adding the

"imprimatur of the government" to the later testimony. Casas, 356

F.3d at 120 (expressing concern that prosecutors could use a

government agent to bolster a later dubious witness). First, as a

practical matter, all of the later witnesses who testified about

the Browns' resistance and arrest were government agents (Marshals;

Bureau of Alcohol, Tobacco, Firearms and Explosives; and Internal

Revenue Service agents who participated in the attempted capture,

capture, and/or post-arrest sweep). Second, the majority of the

subsequent agents' testimony pertained to topics that Monier did

not go into detail about - the botched arrest attempt, the actual

-28-
arrest, and the weapons that were discovered in the post-arrest

sweep of the home. In the minimal areas where Monier and the other

agents' testimony did intersect, there do not appear to be any

contradictions.

We are satisfied that Monier did not offer inappropriate

overview testimony. It necessarily follows that there was no abuse

of discretion on the district court's part in admitting the

evidence. We proceed to the next supposed error.

iii. Books

During trial, the government introduced several books

that Marshals had recovered from a shelf in a hallway in the Brown

home. The titles were: "The Anarchist Handbook," "Guerilla Warfare

and Special Forces Operations," "Unconventional Warfare Devices and

Techniques," "Booby Traps," and "Modern Chemical Magic." The trial

judge admitted the books over Elaine's objection, which was based

on lack of foundation and unfair prejudice under Rule 403. Before

this court Elaine asserts that the court's admission of the books

was prejudicial error. In support, she draws our attention to the

dearth of evidence physically connecting her to the books, and also

to the fact that the prosecutor referenced the books' titles during

closing argument and read an excerpt from one, claiming that it

reflected the Browns' belief system. Because Elaine objected at

trial, we review the court's admission of the books for abuse of

discretion. See Polanco, 634 F.3d at 44.

-29-
 Although relevant, evidence may be excluded if it is

prejudicial. See Fed. R. Evid. 403. However, the evidence must be

unfairly prejudicial and that prejudice must substantially outweigh

the probative value. See United States v. Li, 206 F.3d 78, 85 (1st

Cir. 2000). A district court's Rule 403 determination is entitled

to deference. See United States v. Gentles, 619 F.3d 75, 87 (1st

Cir. 2010), cert. denied, 131 S. Ct. 622 (2010). "Accordingly,

'only rarely - and in extraordinarily compelling circumstances -

will we, from the vista of a cold appellate record, reverse a

district court's on-the-spot judgement concerning the relative

weighing of probative value and unfair effect.'" Id. (quoting Li,

206 F.3d at 84-85).

We have had prior opportunity to consider an argument

similar to Elaine's. In United States v. Ford, the defendant, who

was convicted of multiple drug crimes, argued that the trial court

erred in admitting into evidence a book found in his home entitled

"Secrets of Methamphetamine Manufacture." 22 F.3d 374, 375 (1st

Cir. 1994). We disagreed, finding that the book was relevant to

show that the defendant was a drug dealer as opposed to simply a

drug user and that its probative value was not outweighed by

prejudice. See id. at 381-82.

The Sixth Circuit Court of Appeals has faced a similar

argument. In United States v. Rey, the defendant, who was

convicted of conspiracy to possess and distribute cocaine, argued

that the trial court erroneously admitted into evidence books found

-30-
in his home. 923 F.2d 1217, 1221 (6th Cir. 1991). A sampling of

the books' titles included: "How to Launder Money," "Tax Havens in

the Caribbean," and "DEA Domestic Operations Guidelines." See id.

at 1219. The books were not only admitted into evidence, but a DEA

agent also testified that they were indicative of illegal drug

trafficking. See id. In that case, the Sixth Circuit found that

the books were relevant because they made it more probable that the

defendant committed the charged crimes and that the books were not

unduly prejudicial. See id. at 1221-22. We reach a result similar

to those reached in Ford and Rey.

At a minimum, the books and titles were relevant to show

that Elaine had knowledge of how to conduct armed resistance

against the government and the factual implementation of such

resistance. This probative value (despite Elaine's best effort to

convince us otherwise) was not substantially outweighed by unfair

prejudice.

First, we disagree that prejudice resulted simply because

there was no testimony or forensic evidence tying Elaine to the

books. There is no requirement that such evidence be introduced.

And notably there was no evidence that would compel us to conclude

that the books were solely Edward's. The books were found out in

the open, in the hallway, in the home that Elaine and Edward had

lived in for almost twenty years and had been holed up in for nine

months. The books' location is sufficient to raise the inference

-31-
that the books were Elaine's or at the least owned by Elaine and

Edward together.

Nor are we persuaded by Elaine's somewhat confusing

contention that the prosecutor's closing argument reference to the

books "demonstrates the prejudice" to her. We are concerned with

whether the trial court erred in admitting the books, and our

"analysis must 'evaluate the trial court's decision from its

perspective when it had to rule and not indulge in review by

hindsight.'" United States v. Varoudakis, 233 F.3d 113, 124 (1st

Cir. 2000) (quoting Old Chief v. United States, 519 U.S. 172, 183

n.6 (1997)). The fact that the prosecutor referenced the books

days after the court ruled them admissible is not relevant to our

inquiry.23

To sum up, there are simply no "extraordinarily

compelling circumstances" that would convince us to reverse the

trial judge's on the spot determination on the books' probative

value versus unfair prejudice. Gentles, 619 F.3d at 87. The court

did not abuse its discretion. We turn to Elaine's next offering.

23
To be clear, we are offering no opinion on whether the
manner in which the prosecutor used the books during closing
argument - as reflective of the Browns' belief system - was
appropriate. As we said, this is not relevant to our inquiry.
Elaine's bone of contention is with the books' admission and there
is no indication in the record that she sought a limiting
instruction or requested that the books be admitted for a limited
purpose.

-32-
 iv. Firearm Possession Testimony

Elaine takes issue (more on her specific issue below)

with Marshal Monier's and Marshal Jeffrey White's testimony that

Elaine was armed at the time of her 2006 arrest on tax evasion

charges. Here is a brief summary of the testimony and the court's

response to that testimony.

Monier testified once that Elaine was armed during the

2006 arrest - an answer that he got out before defense counsel was

able to object. However, once defense counsel did object the court

sustained the objection, and sustained a second similar objection,

at which time the prosecutor abandoned the line of questioning. As

for White, he also stated only once that Elaine was armed - he

responded "yes" when asked whether he found a weapon on Elaine

during the 2006 arrest. This again was objected to and the court

sustained the objection and instructed the jury to disregard the

testimony; an instruction the jury is presumed to have followed.

See Morales-Vallellanes v. Potter, 605 F.3d 27, 34-35 (1st Cir.

2010). Arguably, White implied one additional time that Elaine was

armed during the 2006 arrest - he testified "we did a strip search

[of the Browns] to ensure they had no additional weapons on them."

(emphasis added). Defense counsel did not object. Thereafter, the

prosecutor attempted a few more times to elicit testimony regarding

the gun, defense counsel timely objected before White could

respond, and the court sustained the objections. The trial judge

even cautioned the prosecutor at sidebar to cease the line of

-33-
questioning, noting his concern with bringing in evidence of a

previous legal possession of a firearm (which the 2006 possession

was) since Elaine was now being tried for illegal possession of a

firearm. The prosecutor complied and Elaine's counsel did not

request a curative instruction.

This brings us to Elaine's argument. She asserts that

this testimony, though by her own admission properly excluded by

the court, was nonetheless heard by the jury and, according to her,

this exacerbated the prejudicial effect of the other testimony she

complains of (i.e., the overview and hearsay testimony). However,

Elaine does not point to any erroneous ruling on the court's part

or any misconduct on the prosecutor's part. Faced with no

specificity as to what error Elaine is claiming, or as to the legal

grounds on which she is relying, we decline to tackle her hollow

contention. This takes us to Elaine's final submission of error.

v. Mens Rea Evidence

Elaine (like Edward) claims the court erred by excluding

evidence of her motivations for resistance, which was relevant to

her intent or mens rea. We thoroughly considered this argument

when Edward made it and will not rehash. The district court did

not err when it excluded the evidence.

Cumulative Error End Result

We have reached the end of Elaine's assortment of

evidentiary arguments. Because we have found no merit in any of

her individual complaints, it necessarily follows that her trial

-34-
was not tainted by cumulative error and reversal is not warranted.

See Colón-Díaz, 521 F.3d at 40. We forge ahead to Elaine's next

ground for appeal.

2. Section 924(c) Jury Instructions and Verdict Form

Count 4 of the indictment charged Elaine with violating

18 U.S.C. § 924(c). The statute provides that "any person who,

during and in relation to any crime of violence . . . uses or

carries a firearm, or who, in furtherance of any such crime,

possesses a firearm" shall be subject to additional imprisonment

over and above that for the underlying crime of violence.24 18

U.S.C. § 924(c)(1)(A). The term of imprisonment is set at "not

less than 5 years." Id. § 924(c)(1)(A)(i). However, if "the

firearm . . . is a destructive device," then the term of

imprisonment is "not less than 30 years." Id. § 924(c)(1)(B)(ii).

Elaine was found guilty of Count 4 and sentenced to

thirty years under subsection (B)(ii) pertaining to destructive

devices. She claims this conviction should be reversed because the

verdict form, and some portions of the jury instructions, did not

articulate the § 924(c) offense correctly. Since Elaine did not

object at trial, we review for plain error. See United States v.

Fisher, 494 F.3d 5, 9 (1st Cir. 2007). To satisfy the plain error

standard, Elaine "must show: (1) that an error occurred (2) which

24
Here Counts 1 and 2 of Elaine's indictment were the
underlying crimes of violence - conspiring to prevent Marshals from
discharging their duties and conspiring to resist, impede or
assault the Marshals.

-35-
was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

Id. (internal quotation marks and citation omitted). The plain

error standard is "so demanding that we have characterized it as

cold comfort to most defendants pursuing claims of instructional

error." Troy, 618 F.3d at 33 (internal quotation marks and

citation omitted).

Elaine takes issue with the following phrase, which was

used by the judge multiple times during jury instructions and was

contained on the verdict form: "carrying, using or possessing a

firearm, including a destructive device, in connection with a crime

of violence." (emphasis added). Undoubtedly, this phrase does not

mirror the precise language of the statute. Section 924(c)

contains two separate charges - first, using and carrying a firearm

during and in relation to a crime of violence and second,

possessing a firearm in furtherance of a crime of violence. This

court has held that the "in furtherance" element of § 924(c)

"imposes a 'slightly higher standard' of liability than the nexus

element corresponding to the different charges of using or carrying

a firearm, which need only occur 'during and in relation to' the

underlying crime." United States v. Delgado-Hernández, 420 F.3d

16, 25 (1st Cir. 2005) (quoting H.R. Rep. No. 105-344, at 11

(1997)). In particular, the phrase "in furtherance of" suggests

-36-
more of a nexus between the possession and the underlying crime.

See id.

Here it is unclear what the trial judge meant by the "in

connection with" phrase, though it seems likely that it was

intended as a type of shorthand to encompass both the "during and

in relation to" and "in furtherance of" elements, both of which

were before the jury for consideration. It is also possible that

the trial judge took the "in connection with" phrase directly from

the indictment where it was used in the Count 4 heading, followed

by a correct description of the two separate charges in the body of

the count. In either event, the heightened "in furtherance"

standard that pertains to the possession charge was not present in

the court's phraseology (though it was present at another point,

which we will get to). We, like Elaine, find this omission

troubling. However, we do not find reversible error. We first

consider the jury instructions.

i. Jury Instructions

When applying the plain error standard in the context of

jury instructions, "we look at the instructions as a whole to

ascertain the extent to which they adequately explain the law

without confusing or misleading the jury." Troy, 618 F.3d at 33.

Here, the court used the problematic phrase seven times during its

instruction on the § 924(c) count25 - three times when first

25
The court used the phrase once more when it was reading the
jury the verdict form and explaining it to them. We discuss the

-37-
describing what Elaine was charged with and another four times

during the Pinkerton instruction.26 Sandwiched in between these

seven statements, however, the judge said the following: "the

government must prove . . . beyond a reasonable doubt [that]

defendant knowingly carried or used a firearm including a

destructive device during and in relation to, or possessed a

firearm including a destructive device in furtherance of, the

commission of that crime of violence." In this statement, the

judge set forth precisely and accurately the elements of § 924(c).

The court also went on to define the phrases "possess" and "in

furtherance."

As a result, the jury, though confronted with several

questionable articulations of § 924(c), had all the precise

elements of the crime set forth in the portion of the charge

pertaining to what the government must prove beyond a reasonable

doubt. The jury was also provided with a written copy of the

entire instructions, and thus could reference the correct

description of the two charges and their respective elements. The

jury could do the same with the copy of the indictment that was

impact of the language being contained on the verdict form below.
26
Under the Pinkerton theory of liability, the jury could find
Elaine, by virtue of her membership in the conspiracy,
substantively liable for the foreseeable criminal conduct of Edward
(his violation of § 924(c)) during the course of and in furtherance
of the conspiracy. See Bucci v. United States, 662 F.3d 18, 36
(1st Cir. 2011); United States v. Hansen, 434 F.3d 92, 103 (1st
Cir. 2006) (citing Pinkerton v. United States, 328 U.S. 640, 645-48
(1946)).

-38-
provided to them during deliberation, which as noted above,

correctly differentiated between the two charges in the body of

Count 4.

So although the court's "in connection with" language may

have been ambiguous in the abstract, the rest of the jury

instruction lent content to it. See Victor v. Nebraska, 511 U.S.

1, 14-17 (1994); Gilday v. Callahan, 59 F.3d 257, 261 (1st Cir.

1995). Further, the "test of jury instructions is not abstract

perfection" and instead we consider them "as a whole to determine

whether they correctly summarize the relevant law." Hopkins v.

Jordan Marine Inc., 271 F.3d 1, 4 (1st Cir. 2001) (finding that no

harm was done when the trial judge twice used the phase "the

proximate cause" when it should have been "a proximate cause"

because this language was juxtaposed with a clear and explicit

statement about causation). The use of the shorthand "in

connection with" phrase in both the indictment and instructions was

unfortunate. Nonetheless, in considering the overall instructions,

which included the court's clear recitation of the precise § 924(c)

elements, we cannot say that the jury was led astray or harm was

done. It is further noteworthy that a "misdescription or omission

of an element of a crime does not necessarily constitute plain

error" in the context of jury instructions. United States v.

Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003) (citing Neder v.

United States, 527 U.S. 1, 9-10 (1999)) (finding no plain error

when a trial judge incorrectly stated in jury instructions that the

-39-
existence of a threat is determined by a recipient's reaction

because the judge later set forth the correct reasonable speaker

standard pertaining to threats). We conclude that as a whole, the

jury instructions provided an accurate description of the § 924(c)

charge. Our analysis continues with the verdict form.

ii. Verdict Form

The jury verdict form contained the same imperfect

language as the instructions. It read:

COUNT IV: CARRYING, USING OR POSSESSING A FIREARM IN
CONNECTION WITH A CRIME OF VIOLENCE

3. We, the Jury find the Defendant, Elaine Brown, [blank
space] of carrying, using or possessing a firearm in
connection with the crime of violence charged in Count I
or II.

. . .

COUNT IV: CARRYING, USING OR POSSESSING A DESTRUCTIVE
DEVICE IN CONNECTION WITH A CRIME OF VIOLENCE

4. We, the Jury find the Defendant, Elaine Brown, [blank
space] of carrying, using or possessing a destructive
device in connection with the crime of violence charged
in Count I or II.

In both blank spaces, the jury hand-wrote "Guilty."

"We have consistently expressed that a verdict form . .

. must be reasonably capable of an interpretation that would allow

the jury to address all factual issues essential to the judgement."

United States v. Riccio, 529 F.3d 40, 47 (1st Cir. 2008) (internal

quotation marks and citation omitted). We review the verdict form

"as a whole, in conjunction with the jury instructions, in order to

-40-
determine whether the issues were fairly presented to the jury."

Id.

It is without question that the verdict form did not set

forth all of the elements of § 924(c). However, a district court

need not reiterate all of the elements of a crime in a verdict form

if they were properly set forth in the jury instructions. See

Riccio, 529 F.3d at 47. Here the § 924(c) elements were indeed set

forth correctly (albeit only once) in the jury instructions. Thus,

reading the instructions and verdict form together (which the jury

had the opportunity to do), we think the § 924(c) issue was fairly

presented.

In the end, we do not see grounds for reversal. While we

think the better practice would have been for the trial judge to

consistently mirror the statute's language, we conclude that any

error with the use of the "in connection with" phrase was far from

obvious. This holding is consistent with our previous treatment of

the "in connection with" phrase in the context of § 924(c). See

Delgado-Hernández, 420 F.3d at 26 (denying defendant's request to

set aside a plea because the district court did not commit plain

error when it referred to the § 924(c) charge as "possession of the

firearm in connection with the drug trafficking crime" during the

plea colloquy). Elaine's argument fails. This leaves us with her

final assertion on appeal.

-41-
 3. In-Chambers Jury Questioning

Robert David Vonkleist was a witness who testified for

the defense at trial. The substance of Vonkleist's testimony is

not at issue so it suffices to note that he was a friend of the

Browns who participated in one of their Plainfield home concerts.

What is pertinent is what Vonkleist did at the conclusion of his

testimony. As he was leaving the stand, he stated "God save us

all. God save us all." Alerted to the comment by the prosecutor,

the trial judge asked the jurors to indicate by a show of hands

whether they heard Vonkleist make any remark. Six jurors indicated

they had.

The judge brought counsel into chambers and expressed a

concern that Vonkleist's conduct was contemptuous. In order to

address this possibility, the judge decided to bring each juror who

heard the comment into chambers individually (with counsel present)

to ask what he or she heard. Elaine's counsel requested that the

questioning take place in open court, but the judge declined. The

in-chambers colloquy with each juror then proceeded like so. The

judge asked the juror what they heard and each responded.27 The

judge then ordered the juror to disregard the statement and asked

whether they could comply with this order. Each juror answered in

the affirmative. The judge also gave counsel the opportunity to

27
Some jurors heard Vonkleist's exact wording, while others
heard some variation of the phrase, ranging from "God help us" to
"Save yourselves." One juror thought Vonkleist mumbled something
about power.

-42-
ask questions but, other than Edward's counsel asking one juror

whether the statement was out-loud or mumbled, all counsel

declined. This was the extent of the questioning.

Elaine's point of contention is with the trial judge's

decision to question the jurors in-chambers. The argument is two-

fold. First, according to Elaine, the in-chambers questioning

violated her constitutional right to be present at trial.

Secondly, she asserts the questioning violated her constitutional

right to a public trial. Since we are faced with questions of law,

our review is de novo. United States v. Garcia-Ortiz, 528 F.3d 74,

85 (1st Cir. 2008).

i. Right to Be Present

In situations where confrontation is not at issue, a

criminal defendant's right to be present at trial is protected by

the Fifth Amendment Due Process Clause. See United States v.

Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (stating that the

constitutional right to presence is protected by the Due Process

Clause "in some situations where the defendant is not actually

confronting witnesses or evidence against him"). This right is

codified in Rule 43 of the Federal Rules of Criminal Procedure.

See Fed. R. Crim. P. 43(a) (unless as otherwise provided, "the

defendant must be present at . . . every trial stage").

The Supreme Court has previously addressed the right to

be present in a matter similar to the one at hand. In Gagnon, the

defendants, like Elaine, took issue with an in-chambers discussion

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between the trial judge and a juror. See Gagnon, 470 U.S. at 524-

25. The judge had brought the juror into chambers after the juror

expressed apprehension about seeing one of the criminal defendants

sketching pictures of the jury. See id. The judge alleviated the

juror's concerns and then asked whether he could continue to serve

as an impartial juror and the juror confirmed he could. See id. at

524. On review, the Supreme Court found that the in-chambers

conference did not violate the defendants' rights to be present,

either under the Fifth Amendment or Rule 43. See id. at 526, 529.

We do the same.

The "mere occurrence of an ex parte conversation between

a trial judge and juror does not constitute a deprivation of any

constitutional right." Id. at 526 (internal quotation marks and

citation omitted). Nor does the defendant have a constitutional

right to be present at every interaction between a judge and juror.

Id. However, the defendant does have a Fifth Amendment due process

right to be present when his presence is needed to ensure

fundamental fairness or a reasonable substantial opportunity to

defend against the charges. See id. at 526-27. Those

considerations are not in play here.

The trial judge's very brief conference with the six

jurors was conducted for a circumscribed purpose - to determine

whether Vonkleist should be subject to contempt charges. In fact,

Vonkleist had completed his testimony and though the contempt issue

arose out of Elaine's trial, Vonkleist's conduct and the court's

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possible response to his conduct had nothing to do with Elaine or

the crimes she was charged with. Rather it was a matter of the

judge protecting the integrity of the courtroom. The judge went

about accomplishing this (with all counsel present) by simply

asking the jurors what they heard and then verifying that they

could disregard the statement. Elaine's attendance was hardly

necessary to ensure that this discourse was fair, nor would she

have gained anything from attending. As aptly stated by the

Supreme Court, the "Fifth Amendment does not require that all

parties be present when the judge inquires into such a minor

occurrence." Id. at 527. Elaine cannot prevail on Fifth Amendment

grounds.

Nor can she prevail under Rule 43. If a defendant is

entitled under Rule 43 to attend a portion of the trial not taking

place in open court, then "the defendant or his counsel must assert

that right at the time; they may not claim it for the first time on

appeal from a sentence entered on a jury's verdict of 'guilty.'"

Id. at 529. Neither Elaine nor her counsel requested that she be

present for the in-chambers questioning. Counsel, who attended the

questioning, was assuredly aware that it was taking place and there

is no indication that Elaine was unaware of it.28 Elaine's failure

28
The judge announced his intention to question the jurors in-
chambers during a conference with counsel. Elaine's counsel then
indicated that he would discuss the issue with her. Thereafter a
recess was taken. Elaine does not claim that her attorney did not
inform her that the questioning was going to take place.

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to request attendance at the juror questioning constitutes a waiver

of any rights she had under Rule 43. See id. at 529.

ii. Right to a Public Trial

The Sixth Amendment provides a criminal defendant with a

right to a public trial. See U.S. Const. amend. VI ("In all

criminal prosecutions, the accused shall enjoy the right to a . .

. public trial.") This court has explained that

the purpose of the public trial protection is to "benefit
. . . the accused; that the public may see he is fairly
dealt with and not unjustly condemned, and that the
presence of interested spectators may keep his triers
keenly alive to a sense of their responsibility and to
the importance of their functions."

United States v. Scott, 564 F.3d 34, 38 (1st Cir. 2009) (quoting

Waller v. Georgia, 467 U.S. 39, 46 (1984)). A public trial also

"encourages witnesses to come forward and discourages perjury."

Waller, 467 U.S. at 46.

Elaine faults the trial judge for excluding the public

from the questioning of the jurors, thereby implicating her right

to a public trial. However, none of the considerations underlying

this constitutional right are present here. The attendance of the

public was not needed to ensure that Elaine was "fairly dealt with"

or "not unjustly condemned" because the subject of the conference

was not her - it was Vonkleist. Id. Further, we cannot glean how

the presence of interested spectators would have impacted the

jurors' "sense of their responsibility" to honestly answer the

simple questions posed - what did you hear Vonkleist say and can

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you disregard it? Id. The absence of any testimony and the brief,

limited nature of the conference also renders the perjury and

witness concerns inapposite. Further, it bears repeating that just

because a judge converses with a juror ex parte, it does not mean

that a constitutional violation has occurred in every instance.

See Gagnon, 470 U.S. at 526.

We do not see a Sixth Amendment violation in the facts at

hand and Elaine's attempt to convince us otherwise is not

persuasive. The cases Elaine relies on involve public trial

violations in the context of total or partial courtroom closures

during trial or during initial voir dire of prospective jurors. We

have neither instance here. Elaine points to no case, precedential

or otherwise, that extends the Sixth Amendment public trial right

to the in-chambers questioning of a juror, let alone to an in-

chambers questioning where the sole subject is the potential

treatment of a contemptuous witness. We need not determine whether

the public trial right could ever extend in such circumstances, but

simply "decline to recognize such a right on facts as uncompelling

as these." Vázquez-Botet, 532 F.3d at 52 (declining to extend the

public trial right to an offer-of proof hearing on the facts at

hand). Elaine's public trial claim fails. This takes us to the

end of the road on Elaine's claimed errors.

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 CONCLUSION

After thorough consideration, we have found no merit in

any of Edward's or Elaine's arguments. Their convictions are

affirmed.

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