United States Court of Appeals
For the First Circuit
No. 98-1476
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN BALSAM,
Defendant, Appellant.
No. 98-1477
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH ZACKULAR,
Defendant, Appellant.
No. 98-1478
UNITED STATES OF AMERICA,
Appellee,
v.
TODD A. ARSENAULT,
Defendant, Appellant.
No. 98-1672
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS C. MEUSE,
Defendant, Appellant.
No. 98-1894
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN MEUSE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Stahl, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Joseph S. Oteri, with whom Oteri, Weinberg & Lawson, Kimberly
Homan and Sheketoff & Homan were on brief for appellant Balsam.
Leo T. Sorokin, with whom Elizabeth L. Prevett was on brief
for appellant John Meuse.
Geraldine S. Hines, with whom Burnham & Hines was on brief for
appellant Zackular.
Douglas J. Beaton for appellant Thomas Meuse.
Kevin E. Sharkey, with whom Kenna, Johnston & Sharkey, P.A.
was on brief for appellant Arsenault.
Jonathan L. Marcus, Attorney, United States Department of
Justice, with whom Donald K. Stern, United States Attorney, Michael
J. Pelgro, Assistant United States Attorney, and Patrick Hamilton,
Assistant United States Attorney, were on brief for appellee.
February 11, 2000
2
CYR, Senior Circuit Judge. In these consolidated
criminal appeals, Todd Arsenault, Stephen Balsam, John Meuse,
Thomas Meuse and Joseph Zackular seek to set aside their respective
convictions, and in certain instances the sentences imposed by the
district court, in connection with a rash of armed robberies
perpetrated in the Boston area during 1990. We affirm the district
court judgment in all respects.
I
BACKGROUND
While employed as an electrician at BayBank in Lynn,
Massachusetts in 1989, Thomas Meuse stole the bank’s blueprints.
Later, he recruited his friend James Ferguson, a convicted armed
robber, as well as several other accomplices, to rob the bank.
Meuse planned to cut a hole in the roof at night, through which
Ferguson could gain access. Once inside, Ferguson was to wait
until bank employees arrived for work the following morning,
threaten them with a gun, then force them to open the vaults.
On January 7, 1990, Meuse and Ferguson, along with other
accomplices, committed the BayBank robbery as planned and made away
with approximately $125,000. Over the next eleven months, the
group robbed fourteen other banks and business establishments in
the Boston area.1
1
These were: Somerset Savings Bank (2/90); a Stoneham jewelry
store (3/90); Malden Trust Company (3/90); Warren Five Cents
Savings Bank (4/90); Woburn BayBank (5/90); Lynn BayBank (5/90);
3
Thomas Meuse participated in almost all the robberies
which took place prior to his arrest in August 1990. James
Ferguson participated in all the robberies. The remaining
appellants — John Meuse (Thomas Meuse’s brother), Todd Arsenault,
Stephen Balsam, and Joseph Zackular — joined the conspiracy later.2
Thomas Meuse was indicted in December 1994 on a single
count of aiding and abetting an armed bank robbery. See 18 U.S.C.
§ 2113(a), (d); id. § 2(a). Over the next six months, four
superseding indictments issued, adding various charges and
codefendants.3 Following further discovery and extensive pretrial-
motion practice, the forty-eight-day trial began in March 1997.
James Ferguson, a prime government witness whose
testimony spanned eight days, described the criminal activities of
Malden BayBank (5/90); East Boston Savings Bank (6/90); Depositors’
Trust Company (7/90); Lloyd’s Diamond & Gold (8/90); Gallahue’s
Market (9/90); Everett Cooperative Bank (9/90); Woburn BayBank
(10/90); and Capital Bank & Trust (11/90).
2
John Meuse joined in March 1990, Arsenault in May 1990,
Balsam in August 1990. Zackular’s involvement developed more
gradually: Ferguson used proceeds from the January 1990 robbery to
buy a car from a dealership owned by Zackular. Over the next
several months, the two became friends. Eventually, Ferguson
confided in Zackular that the money used to buy the car had been
stolen. At that time, Zackular advised Ferguson how to set up a
sham business to conceal the source of the stolen funds.
Eventually, Zackular asked if he could participate in the last two
robberies, which occurred during October and November 1990.
3
The additional charges included: conspiracy to commit armed
bank robbery, 18 U.S.C. § 371; armed bank robbery, id. § 2113;
using a firearm in a crime of violence, id. § 924(c)(1); and
conspiring to affect commerce by means of robbery, id. § 1951.
4
his codefendants in lurid detail. Notwithstanding the extensive
cross-examination of Ferguson by defense counsel, guilty verdicts
were returned against each defendant on multiple counts.4
II
DISCUSSION
A. The Speedy Trial Act Claim
Thomas Meuse claims that the trial was delayed for more
than seventy nonexcludable days in violation of the Speedy Trial
Act (STA). See 18 U.S.C. § 3161(c)(1). There was no reversible
error.5
On May 5, 1995, Thomas Meuse and the government submitted
a joint motion to continue the hearing on Meuse’s various pretrial
motions. The motion stipulated that the "[t]he government [was] in
the process of providing defense counsel with 79 transcripts of
recorded conversations as well as other discovery materials," and
that "[o]nce that process is complete, the parties will be in a
better position to agree on certain [discovery-related] matters and
to conduct a meaningful hearing before the Court." Through
4
Thomas Meuse was sentenced to 627 months; John Meuse 336;
Zackular 262; Balsam 204; Arsenault 60. Balsam, Zackular and
Arsenault were directed to pay restitution as well.
5
Normally, we would review factual findings relating to the
STA for clear error only, and legal rulings de novo. See United
States v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir. 1997). But
since the district court denied Thomas Meuse’s STA motion without
factual findings, we undertake plenary review. See United States
v. Barnes, 159 F.3d 4, 9-10 (1st Cir. 1998).
5
counsel, Meuse expressly agreed that the requested continuance
would “serve the ends of justice and that such action outweighs the
best interests of the public and the defendants in a speedy trial."
Although it allowed the continuance, the district court did not
simultaneously reschedule the hearing date. Ultimately, the
hearing took place on January 22, 1996 — 206 days after the fourth
superseding indictment had been filed.
The STA states that "interest of justice" continuances
are to be excluded in computing the maximum seventy-day STA time
period. See 18 U.S.C. § 3161(h)(8)(A).6 Based on our decision in
United States v. Barnes, 159 F.3d 4, 9-10 (1st Cir. 1998), Meuse
contends that open-ended continuances under section 3161(h)(8)(A)
should be strongly disfavored. Barnes is readily distinguishable,
however. There the district court had ordered a continuance on its
own motion, without defense counsel’s consent and with no
6
The STA states in pertinent part:
The following periods of delay shall be excluded in
computing the time within which an information or an
indictment must be filed, or in computing the time within
which the trial of any such offense must commence:
. . . .
Any period of delay resulting from a continuance
granted by any judge on his own motion or at the
request of the defendant or his counsel or at the
request of the attorney for the Government, if the
judge granted such continuance on the basis of his
findings that the ends of justice served by taking
such action outweigh the best interest of the
public and the defendant in a speedy trial.
18 U.S.C. § 3161(h)(8)(A).
6
explanation as to how the continuance would serve the interests of
justice. By contrast, Meuse consented to this continuance, and the
joint motion itself explained the grounds for the delay. See id.
at 13 (noting that the court need not articulate its explanation
for a continuance where the reasons are apparent, i.e., "set forth
in the motion papers"). Furthermore, the open-ended continuance
was granted because the parties suggested no date certain for
rescheduling the hearing. See United States v. Rush, 738 F.2d 497,
508 (1st Cir. 1984) ("[I]n some cases . . . a court is forced to
order an (h)(8) continuance without knowing exactly how long the
reasons supporting the continuance will remain valid.").
Meuse further contends that his former counsel rendered
ineffective assistance by endorsing the continuance. Meuse states
that he told his attorney at the outset to accept no continuance
because Meuse believed that the government had not yet gathered
sufficient evidence to convict. Although we normally decline to
address ineffective-assistance claims on direct appeal, see United
States v. Ademaj, 170 F.3d 58, 64 (1st Cir. 1999), the present
record is sufficiently developed to enable us to do so.
In order to demonstrate ineffective assistance, a
defendant must prove that defense counsel’s decision was (1) so
deficient that it did not come within the "wide range of reasonable
professional assistance," and (2) actually prejudiced the defense.
United States v. Ortiz, 146 F.3d 25, 27 (1st Cir. 1998) (citing
7
Strickland v. Washington, 466 U.S. 668, 689 (1984)).
8
Notwithstanding the conclusory assertion that the
government lacked the evidence to convict, the record discloses
that on May 5, 1995 the government and the defense were engaged in
exchanging voluminous discovery materials — including dozens of
transcripts of incriminating tape-recorded conversations — in a
highly complex criminal case potentially involving multiple
defendants. Moreover, after Meuse dismissed his first attorney,
replacement counsel vigorously proceeded with various pretrial and
discovery motions. Based on the sheer volume of the discovery
materials disclosed by the government, Meuse’s attorneys would have
rendered less than effective assistance had they insisted on
proceeding to trial precipitously, without adequate opportunity to
review the strengths and weaknesses of the government’s evidence.
Furthermore, the present record does not demonstrate that
the 206-day delay prejudiced the Thomas Meuse defense. For one
thing, the defense relied heavily on the taped conversations to
impeach Ferguson, the prime prosecution witness. See, e.g., infra
Section II.H.7 There was no STA violation.
7
The attempt to attribute the entire 206-day delay to former
defense counsel’s consent is an exaggeration as well. On July 3,
1995, Meuse’s brother, John, filed his own pretrial motions. Since
Thomas and John were to be tried jointly, John’s motions would have
tolled Thomas’s STA period for the "reasonable period of delay"
required to dispose of John’s motions "promptly." See 18 U.S.C. §
3161(h)(7) & (h)(1). Thomas Meuse has not attempted to demonstrate
that the delay from July 1995 to January 1996 for hearing and
resolving John Meuse’s motions was not “reasonable.”
9
B. The Sealing of the Fourth Superseding Indictment
Thomas Meuse and Todd Arsenault contend that it was
improper to seal the fourth superseding indictment filed in June
1995 since the government did not disclose the reasons for doing
so, and further, that the government chose to seal the indictment
in order to gather additional evidence against the defendants, not
because it needed more time to arrest defendants. Finally, they
urge dismissal on the ground that only a properly sealed indictment
tolls the statute of limitations and the limitations period had
elapsed before the court unsealed the fourth superseding indictment
in February 1996.8
Criminal Rule 6(e)(4) provides:
The federal magistrate judge to whom an
indictment is returned may direct that the
indictment be kept secret until the defendant
is in custody or has been released pending
trial. Thereupon the clerk shall seal the
indictment and no person shall disclose the
return of the indictment except when necessary
for the issuance and execution of a warrant or
summons.
Fed. R. Crim. P. 6(e)(4). Rule 6(e) rests on the premise that
criminal defendants not yet in custody may elude arrest upon
learning of their indictment. Once the court sealed the fourth
superseding indictment in this case, arrest warrants were issued
against Arsenault, Balsam and Zackular, who had not yet been taken
8
We review de novo the district court ruling rejecting the
motion to dismiss the indictment. See United States v. Stokes, 124
F.3d 39, 42 (1st Cir. 1997).
10
into custody on the federal charges. Contrary to appellants’
contention, moreover, the government need not articulate its
reasons for requesting that an indictment be sealed, so long as its
request is based on a ground set forth in Rule 6(e). See, e.g.,
United States v. LaLiberte, 131 F.R.D. 20, 20-21 (D. Mass. 1990);
United States v. Maroun, 699 F. Supp. 5, 6-7 (D. Mass 1988).
Their further assertion — that the government utilized
the sealing procedure as a ruse — is meritless. Rule 6(e) does not
"forbid the sealing of an indictment for any reason other than
taking a defendant into custody . . . [but] a magistrate may grant
the government’s request . . . ‘for any legitimate prosecutorial
objective or where the public interest otherwise requires it.’"
United States v. Richard, 943 F.2d 115, 118 (1st Cir. 1991)
(citation omitted). In the present case, the government needed to
take steps to place cooperating defendant Ferguson in a witness
protection program during the summer of 1995. The protection of a
key prosecution witness undoubtedly qualifies as a legitimate
prosecutorial objective. See id. at 119 (citing with approval
United States v. Ramey, 791 F.2d 317, 318 (4th Cir. 1986)).
Nevertheless, appellants contend that the government
should have returned to court to inform the magistrate judge of its
new objective. Appellants cite no authority for their contention,
however, and the authority we have found is to the contrary. See
id. (finding "no authority for the implied proposition that the
11
government must return to the magistrate as each new reason for
continuing the sealing order arises"). Finally, appellants point
to no evidence that the ensuing seven-month delay was either
pretextual or unreasonable.9
We therefore affirm the refusal to dismiss the
indictment.
C. The Courtroom Seating Arrangements
Citing the small courtroom and the attendant security
concerns, the district court directed that the defendants be seated
in the front row of the spectator section, rather than beside their
respective counsel at the defense table. John Meuse claims that
the mandated seating arrangement prevented or restrained defendants
from exercising their Sixth Amendment right to communicate with
counsel at trial. Further, he argues that these arrangements
improperly undercut the presumption of innocence, as the jury may
have inferred from the isolated grouping of the defendants that
they must be conconspirators, as charged, and because the court
security officers rose to their feet each time defendants got up to
consult with counsel, thus perhaps intimating to the jury that
defendants posed a security risk. Finally, Meuse faults the
9
Although we need not opine on the matter at this time, we
note that the government’s decision to seal an indictment in order
to gather further evidence against a defendant has been held to
constitute a legitimate prosecutorial objective under Rule 6(e).
See Richard, 943 F.2d at 119 (citing United States v. Lakin, 875
F.2d 168, 170 (8th Cir. 1989)).
12
district court for failing even to consider the alternative seating
arrangement proposed by the defendants, which would have moved the
defense counsel table forward two or three feet, thereby enabling
the defendants to be seated in a row directly behind their
respective counsel.
As courtroom seating arrangements "depend[] upon such a
variety of factors, e.g., the size of the courtroom, the number of
spectators, the number of defendants and lawyers, acoustics,
security provisions, etc.," we will not disturb the trial court
decision for anything less than "a clearcut abuse of discretion."
United States v. Turkette, 656 F.2d 5, 10 (1st Cir. 1981); cf.
United States v. DeLuca, 137 F.3d 24, 34 (1st Cir. 1998) (noting
that, in light of courtroom security concerns, appellate court
normally defers to reasonable conditions for admitting trial
spectators). Appellants have not met their burden.
First, the district court ruled that its seating
arrangement was necessary due to the limited space available in the
small courtroom, and by the obvious security concerns which might
arise if ten people were to be seated at or behind the defense
table. Under the district court plan, moreover, the five
defendants were seated only four to five feet from the defense
table, in the front row of the spectator section. The trial judge
also assured the defendants that they could consult freely with
their attorneys as they wished, either by walking the short
13
distance to the defense table, or passing written notes. See
United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984)
(finding that arrangement caused no hindrance in communications).
Thus, in practical terms the seating arrangement imposed no
significant impediment upon defendants’ Sixth Amendment right to
consult with trial counsel.
Nor is it apparent that defendants sustained any other
significant or unwarranted prejudice. The front row in the
spectator section is not an inherently prejudicial location for
seating criminal defendants. See Turkette, 656 F.2d at 10.
Furthermore, it is by no means clear that seating the defendants as
a group directly behind the defense table, as they proposed, would
have lessened any slim chance that the jury would draw an improper
inference of guilt by association. Moreover, their proposal
presented logistical problems, as it required that ten persons be
seated in a cramped area, which would block one of the gates in the
bar rail and require that all witnesses be rerouted through the
remaining gate.
Finally, their characterization of the court security
officers’ movements — as "defensive" — is subjective and
conclusory. The record in no way suggests that the security
officers’ actions were either so dramatic or unusual as to
influence the jury unduly.
We therefore discern no clearcut abuse of discretion in
14
the district court ruling. See id. at 10.10
D. The Sufficiency of the Evidence
Thomas Meuse claims that the government adduced
insufficient evidence that he knew Ferguson would use a gun during
their armed robbery of the Somerset Savings Bank on February 10,
1990, and that this court must therefore reverse his conviction for
aiding and abetting Ferguson in the use of a firearm during that
robbery. See 18 U.S.C. § 924(c)(1). More particularly, Meuse
argues that although he and Ferguson did discuss the need to use a
firearm for the Lynn BayBank robbery in January 1990, they did not
do so in regard to the Somerset Savings Bank robbery, in which a
significantly different modus operandi was employed.
In order to convict Meuse of aiding and abetting, it was
necessary for the government to prove that he knew to a "practical
certainty," United States v. Spinney, 65 F.3d 231, 238 (1st Cir.
1995), that Ferguson would use a gun in the Somerset Savings Bank
robbery. The government did so.11
First, Meuse exaggerates the dissimilarities in the modi
10
There is no conclusive evidence that the district court
declined to consider the alternative seating arrangement.
Moreover, the defense motion was filed before the district court
ruled. Finally, defendants never suggested below that the court
had overlooked their motion.
11
Viewing the evidence in the light most favorable to the
verdict, we assess its sufficiency de novo to determine whether a
rational jury could find each element of the charged offense beyond
a reasonable doubt. See United States v. Guerrero, 114 F.3d 332,
339 (1st Cir. 1997).
15
operandi employed in the two robberies. He planned and instigated
these robberies because he had worked inside both banks, as an
electrician, and was familiar with their layouts and security
systems. In discussions with Ferguson prior to the first robbery,
Meuse proposed to bypass the security systems by cutting through
the bank’s roof. He suggested that Ferguson be lowered into the
bank to await the early arrival of bank employees, whom Ferguson
was to threaten with a weapon in order to gain access to the
vaults. Afterward, Ferguson was to flee in a getaway car manned by
Meuse and their accomplices. The same essential elements were
utilized in the first two robberies, as well as in several later
robberies. Although Ferguson did not testify that he and Meuse
again spoke about using a gun immediately prior to the second
robbery, the very absence of any such discussion on the second
occasion fairly invited a rational jury inference that the second
bank robbery was to be conducted in essentially the same manner,
including the intimidation of bank employees with a gun,
successfully employed in the first robbery.
There was other evidence as well from which the jury
rationally could find that Meuse himself carried the gun to the
second bank robbery. Ferguson testified that, following the first
robbery, he gave Meuse the gym bag which contained not only
Ferguson’s 9mm semiautomatic pistol but also the tools Meuse had
used to cut a hole in the Lynn BayBank roof. Meuse took the bag
16
home with him; then, as Ferguson testified, Meuse carried it to the
second robbery. Thus, the jury rationally could infer that upon
opening the gym bag to retrieve the cutting tools needed to
penetrate the Somerset Bank roof, Meuse would have seen the gun.
Moreover, Ferguson testified that he used the same weapon in both
robberies.
Therefore, viewed in the light most favorable to the
verdict, see Guerrero, 114 F.3d at 339, the evidence supported a
rational inference that Meuse knew to a “practical certainty” that
Ferguson would use a gun in the second robbery.
E. The Guilty Plea Colloquy
Thomas Meuse next contends that the district court erred
in admitting into evidence the state-court plea colloquy which took
place at the time he pled guilty to charges arising out of his
abortive August 1990 robbery of Lloyd’s Diamond & Gold. Citing Old
Chief v. United States, 519 U.S. 172 (1997), Meuse contends that
his agreement to stipulate to this earlier guilty plea barred the
government from adducing any further evidence about either the
prior conviction or the underlying robbery.
Evidentiary rulings under Federal Rule of Evidence 403
are reviewed only for abuse of discretion. See United States v.
Tse, 135 F.3d 200, 208 (1st Cir. 1998). In his state-court plea
colloquy, Meuse admitted that he and Sean Cote had used burglary
tools in an attempt to cut through the Lloyd’s Jewelry Store roof,
17
and when detected by police, had fired on the police while
attempting unsuccessfully to escape in a stolen car. Meuse pled
guilty to attempted breaking and entering, assault with a dangerous
weapon, and unlawful possession of an electric weapon (stun gun),
burglary tools, and a stolen vehicle. As this abortive robbery was
also the subject matter of the Hobbs Act conspiracy count charged
in the federal indictment against Meuse, the plea colloquy clearly
was admissible as an admission probative of his guilt on the Hobbs
Act count. See United States v. De Leon Ruiz, 47 F.3d 452, 455 (1st
Cir. 1995); Fed. R. Evid. 801(d)(2). Thus, reliance on Old Chief
was misplaced, since the government in that case had charged the
defendant with possession of a firearm by a convicted felon. See
18 U.S.C. § 922(g)(1). The Supreme Court therefore held that the
government must accept the defendant’s offer to stipulate to the
fact of the prior conviction, but could not adduce evidentiary
details of the underlying crime. See Old Chief, 519 U.S. at 177,
190 ("[T]he fact of the qualifying [prior felony] conviction is
alone what matters under [18 U.S.C. § 922(g)(1)]."). However, the
bases for the Supreme Court ruling were (i) that “proof of the
defendant’s [felon] status goes to an element entirely outside the
natural sequence of what the defendant is charged with thinking and
doing to commit the current offense [viz., possessing the
firearm],” id. at 191, and (ii) that the defendant’s proffered
stipulation was fully adequate to prove his felon status, whereas
18
a jury informed that defendant previously committed a serious
assault might infer that he had a “bad character,” and this
evidence of propensity would cause defendant “unfair prejudice”
under Federal Rule of Evidence 403, id. at 180-86.
19
In contrast, however, "the prosecutor’s choice [not to
accept a defendant’s stipulation] will generally survive a Rule 403
analysis when a defendant seeks to force the substitution of an
admission for evidence creating a coherent narrative of his
thoughts and actions in perpetrating the offense for which he is
being tried." Id. at 192. The Meuse plea colloquy plainly fit the
latter mold, for in it he described conduct specifically charged in
the federal indictment; i.e., his August 1990 armed robbery. We
discern no abuse of discretion.
F. The Rule 404(b) Objections
Joseph Zackular and John Meuse challenge various
evidentiary rulings pursuant to Federal Rules of Evidence 403 and
404(b).12 These rulings are reviewed for abuse of discretion only.
See United States v. Mangual-Corchado, 139 F.3d 34, 43 n.22 (1st
Cir. 1998).
Prior to trial, Zackular submitted a motion in limine
announcing his intention to cross-examine Ferguson to expose his
12
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident . . . .
Fed. R. Evid. 404(b).
20
personal bias against Zackular; specifically, that following his
arrest Ferguson had attempted to have Zackular murdered. Citing
Federal Rule of Evidence 403, Zackular contended that the
government should not be allowed to introduce evidence as to the
basis for Ferguson’s animus; i.e., that Ferguson mistakenly
believed that Zackular, who had been under indictment for unrelated
federal extortion charges in 1990, had implicated Ferguson in the
robberies which took place in 1990 in order to obtain favorable
treatment from the government in Zackular’s extortion case. In
November 1990, Zackular pled guilty to conspiring to transmit
threats in interstate commerce. Ferguson was arrested in December
1990.
Although the district court did not permit the government
to establish that Zackular had been convicted of extortion, the
government was allowed to introduce evidence that a criminal case
was pending against Zackular in 1990. The district court
determined that the probative value of this limited proof — i.e.,
providing the jury with the "complete story" relating to Ferguson’s
alleged bias — substantially outweighed any danger of unfair
prejudice.
Contrary to Zackular’s claim, no per se rule bars the
government’s introduction of evidence clearly relevant to a jury’s
21
assessment of a government witness’s bias.13 Absent any explanation
for Ferguson’s animus toward Zackular, the jury might be misled to
conclude that Ferguson’s feelings were irrational or arbitrary.
See, e.g., United States v. Robinson, 530 F.2d 1076, 1079 (D.C.
Cir. 1976) ("[T]he trier [of fact] must be sufficiently informed of
the underlying relationships, circumstances and influences
operating on a witness so that, in light of his experience, he can
determine whether a mutation in testimony could reasonably be
expected as a probable human reaction.") (citation omitted). Since
the district court substantially dampened the prejudicial effect of
the evidence by not allowing the government to demonstrate that
Zackular had been convicted of extortion, we cannot conclude that
it abused its discretion in drawing the Rule 403 balance as it did.
See United States v. Aguilar-Aranceta, 58 F.3d 796, 800 (1st Cir.
1995) (noting that appellate courts rarely disturb a “debatable”
Rule 403 determination).14
13
The government points out as well that this evidence was
relevant for purposes other than witness bias. For example, the
evidence corroborated the Ferguson testimony that Zackular had
asked to become directly involved in the final robberies in 1990 in
order to get money to pay for his defense in the extortion case.
We may affirm the district court on any ground apparent from the
record. See United States v. Awon, 135 F.3d 96, 99 (1st Cir.
1998).
14
For the same reasons, we find no abuse of discretion in
admitting the evidence that Zackular was required, as a condition
of his pretrial release on the extortion charges, to call his
pretrial services officer twice a week. This evidence corroborated
Ferguson’s testimony that Zackular had placed such calls from a
cellular phone, on the mornings of both the Woburn BayBank (10/90)
22
Second, the court did not abuse its discretion by
admitting the testimony of Jeannette Dion that Dion feared her
former boyfriend, John Meuse. First, the court did not permit Dion
to describe specific "bad acts" which might explain the grounds for
her fear. Further, the Dion testimony was relevant, as it
explained her reluctance to testify as a government witness. Any
countervailing prejudicial effect was slight, as Dion testified
that she had been fearful of Meuse on but one occasion, and was
"not afraid of him otherwise." Any error was harmless as well,
given the direct evidence of Meuse’s guilt (e.g., the Ferguson
testimony). See, e.g., United States v. Harris, 165 F.3d 1062,
1066 (6th Cir. 1999).
Finally, asked what Meuse had done with the robbery
proceeds, Dion testified that he had bought marijuana. As Meuse
preserved no objection to this evidence,15 we review for plain error
only. See United States v. Conley, 186 F.3d 7, 21 n.15 (1st Cir.
1999) ("Plain errors are ‘those errors so shocking that they
seriously affect the fundamental fairness and basic integrity of
the proceedings conducted below.’") (citation omitted). Meuse
and Capital Bank & Trust (11/90) robberies.
15
First, the government asked Dion if she could recall whether
Meuse had bought any "illegal substances." The defense did not
object. When she answered "Yes," the government asked: "What do
you recall?" At that point, Dion answered: "marijuana." Only
then did the defense object. The court sustained the objection,
but the defense did not request a limiting instruction.
23
incorrectly asserts that this drug evidence was totally unrelated
to the crimes charged (i.e., armed robbery). Cf., e.g., United
States v. Currier, 821 F.2d 52, 56 & n.7 (1st Cir. 1987) (drug sale
unrelated to firearms charge). It was relevant at least insofar as
it demonstrated that Meuse had bought many expensive gifts for Dion
while he had no source of legitimate income, which made it somewhat
more likely that he had used robbery proceeds to do so. As this
isolated, brief reference to marijuana almost certainly had no
significant prejudicial effect on the jury, we find no plain error.
G. The Juror Misconduct Claim
Appellants fault the district court for failing to “voir
dire” the jury after counsel to John Meuse reported having observed
jurors examining one another’s notes. Appellants insist that the
trial judge was duty-bound to investigate these allegations. See,
e.g., United States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st
Cir. 1993).
As the district courts are better situated to determine
whether juror misconduct occurred and prejudice resulted, we
normally review their remediation measures only for a patent abuse
of discretion. See United States v. Cruz, 156 F.3d 22, 28 (1st
Cir. 1998). "The trial judge is not . . . shackled to a rigid and
unyielding set [of] rules and procedures that compel any particular
form or scope of inquiry," Ortiz-Arrigoitia, 996 F.2d at 443, but
should be left free to fashion a remedy appropriate and reasonable
24
in the circumstances, see id.
As counsel for John Meuse was the one person in the
courtroom who reportedly observed the alleged misconduct, the
district court simply instructed the jurors that they were not to
look at each other’s notes. Since appellants failed to move for a
mistrial, the remediation measures selected by the district court
are reviewed only for plain error. See id. at 442. And since the
misconduct in question was uncorroborated,16 and did not raise the
same specter of prejudice as improper outside influences upon the
jury, cf. id. at 443 (voir dire conducted where juror allegedly
discussed case with daughter, who was seen speaking with
defendant’s girlfriend); cf. also United States v. Bertoli, 40 F.3d
1384, 1394 (3d Cir. 1994), we find no plain error.
H. Limitations on Cross-examination
Zackular claims that the district court erred in denying
him an unrestricted opportunity to play the tape recordings of
Ferguson’s jailhouse conversations in an effort to show that
Ferguson was biased and lacked credibility. See Fed. R. Evid.
608(b).17 The proffered tape recordings graphically described
16
Several days later, defense counsel claimed to have seen
jurors consulting each other’s notes again. The district court
expressly observed, however, that it had been keeping a careful
watch, but had seen no impropriety.
17
Rule 608(b) provides:
Specific instances of the conduct of a
witness, for the purpose of attacking or
25
Ferguson’s efforts to have Zackular killed. Since the defense
theory turned principally upon Ferguson’s personal animus toward,
and motives for falsely implicating, Zackular, it is Zackular’s
contention that the district court ruling violated his Sixth
Amendment right to confront the witnesses against him.
Confrontation clause challenges are reviewed de novo to
determine whether defense counsel was afforded a reasonable
opportunity to impeach adverse witnesses; once that threshold is
reached, the trial court’s restrictions on the extent and manner of
cross-examination are reviewed only for abuse of discretion. See
United States v. Gomes, 177 F.3d 76, 80 (1st Cir. 1999). The
Zackular claims fail.
First, during the cross-examination of Ferguson,
Zackular’s counsel elicited an admission that Ferguson had tried to
have Zackular killed. Moreover, Zackular played two taped
conversations in which Ferguson described his antagonism; for
supporting the witness’ credibility, other
than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the
court, if probative of truthfulness or
untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the
witness’ character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross-examined has testified.
Fed. R. Evid. 608(b).
26
example, Ferguson threatened to "blow [Zackular’s] head off." As
the jury was adequately apprised of the nature and vehemence of
Ferguson’s feelings toward Zackular, Zackular was afforded an
adequate opportunity to impeach the witness in conformance with the
Sixth Amendment right of confrontation.
27
Furthermore, the district court expressly ruled that
Zackular would be permitted to play any tape recording which
disclosed Ferguson’s bias. See id. at 81 ("[E]xtrinsic evidence is
admissible to show [witness] bias."). Inexplicably, however,
Zackular has identified no particular tape excerpt which he was
precluded from using. See United States v. Bongiorno, 106 F.3d
1027, 1034 (1st Cir. 1997) (noting that appellate court will deem
waived "issues raised on appeal in a perfunctory manner").
Finally, the district court correctly held that the recordings
could not be used to undermine Ferguson’s credibility. See Gomes,
177 F.3d at 81 ("Extrinsic evidence of specific bad acts is not
admissible to show untruthfulness.").18 There was no abuse of
discretion.
I. Closing Arguments
Appellants contend that their convictions must be set
aside due to improper closing arguments by the prosecution. First,
they assert that the prosecutor intimated that defendants had the
burden of proof and that they should have taken the stand. For
18
Zackular argues that the contents of the tapes did not
constitute "extrinsic evidence," since the recorded statements —
albeit out-of-court — were made by Ferguson. On the contrary,
extrinsic evidence includes any evidence other than trial
testimony. See United States v. Mateos-Sanchez, 864 F.2d 232, 237
(1st Cir. 1988) ("Rule 608(b), which allows specific instances of
conduct to be ‘inquired into’ on cross-examination to attack
credibility, does not provide for the admission of physical
evidence.") (emphasis added). The tapes were just such
nontestimonial evidence.
28
instance, the prosecutor stated: "Did you hear any effort made [by
the defense] . . . to ask [Ferguson] about whether he had ever made
any inconsistent statements [e.g., in his taped conversations]
about [appellants’ involvement in] these robberies?"
Closing arguments are reviewed de novo and reversible
error will be found only if the arguments were "‘both inappropriate
and harmful.’" United States v. Laboy-Delgado, 84 F.3d 22, 29 (1st
Cir. 1996) (citation omitted). Prosecutorial comments will be
found harmful if, “in the totality of the circumstances, they would
probably have affected the outcome of the trial." Id.19
The prosecution may not comment on a defendant’s failure
to take the witness stand in his own defense. See Griffin v.
California, 380 U.S. 609, 615 (1965) (Harlan, J., concurring).
Nevertheless, the government "may focus on the absence of
impeachment [of government witnesses] during cross-examination so
long as [its] comments are ‘sufficiently circumscribed and [do] not
necessarily implicate appellant’s assertion of his fifth amendment
right’ not to take the stand in his own defense." United States v.
Goldman, 563 F.2d 501, 505 (1st Cir. 1977) (citation omitted; final
alteration in original); see Hall v. United States, 46 F.3d 855,
19
Among the relevant factors to be considered are "the severity
of the purported misconduct, the weight of the evidence supporting
the verdict, the presence and likely effect of a curative
instruction, and the prosecutor's purpose in making the statement
(i.e.: whether the statement was willful or inadvertent)." Laboy-
Delgado, 84 F.3d at 29.
29
858 (8th Cir. 1995); cf. United States v. Lewis, 40 F.3d 1325, 1338
(1st Cir. 1994) (observing that prosecution comments concerning the
plausibility of a defense theory do not shift the burden of proof
to the defense). Although it is a source of continual amazement to
us that prosecutors would choose “to hand [a] defendant an issue on
which to appeal," see Goldman, 563 F.2d at 505, these closing
arguments — viewed in their totality and context — expressly
focused only on defects in the cross-examination of Ferguson by the
defense, without inevitably implying that appellants should have
taken the stand.20
Second, appellants complain that the government vouched
for Ferguson’s credibility. After observing that Ferguson would
lose the benefits of his plea bargain were he to perjure himself,
the prosecutor stated: "[Ferguson would] just throw that away,
knowing that he would have two federal prosecutors, agents, going
out checking everything he is saying, verifying. . . . You have
seen a mountain of records . . . all of this stuff is being checked
and verified, the things that he is saying. . . . Judge Lindsay,
who has heard all of this [viz., the government’s case] for the
last three months and particularly James Ferguson for three weeks,
will make that decision as to what sentence to give him."
20
Moreover, even if the comments were determined inappropriate,
the district court repeatedly instructed the jury that the
government, not the defendants, bore the burden of proof. See id.;
supra note 19.
30
(Emphasis added.) Appellants argue that these comments suggested
to the jury that the prosecutor or the judge knew of evidence,
never disclosed to the jury, which would confirm that Ferguson was
telling the truth.
As appellants failed to object to the closing remarks, we
review only for plain error. See United States v. Smith, 101 F.3d
202, 213 (1st Cir. 1996); United States v. Wihbey, 75 F.3d 761, 769
(1st Cir. 1996) (noting that a “plain error” is one which
"seriously affects the fairness, integrity, or public reputation of
the trial process").
"‘[A] prosecutor may not place the prestige of the
government behind a witness by making personal assurances about the
witness'[s] credibility;’ nor may the prosecutor indicate that
facts outside the jury's cognizance support the testimony of the
government's witnesses." United States v. Bey, 188 F.3d 1, 7 (1st
Cir. 1999) (citation omitted; alterations in original); see United
States v. Josleyn, 99 F.3d 1182, 1197 (1st Cir. 1996). These
prohibitions encompass assurances that the government "can monitor
and accurately verify the truthfulness of the witness’ testimony."
United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).
Although these particular comments were inexpert and ill-
advised, their context belies appellants’ efforts to convert them
into plain error. The prosecutor did not imply — at least not
clearly and unequivocally — that the so-called "verification[s]" of
31
Ferguson’s story had not been introduced in evidence at trial.
Rather, by stating that "[y]ou have seen a mountain of records,"
the prosecutor implied that this corroboration consisted only of
documents already introduced at trial. See United States v.
Dockray, 943 F.2d 152, 156 (1st Cir. 1991) (government is entitled
to rebut defense suggestion that government witness’s plea
agreement gave him a motive to lie). Further, the district court
instructed the jury that it was the sole arbiter of the credibility
of the government witnesses and all other evidence. Therefore, we
find no plain error.
J. The Hobbs Act Instruction
John Meuse contends that the district court erroneously
instructed the jury on the Hobbs Act count. Although the
government must prove that the establishments which appellants
allegedly robbed had operated in interstate commerce, the district
court instructed as a matter of law that the businesses at issue in
this case were engaged in interstate commerce.
As Meuse failed to object to the instruction below, we
review for plain error. See United States v. Owens, 167 F.3d 739,
755 (1st Cir. 1999). The government acknowledges that the
instruction was erroneous. See United States v. Gaudin, 515 U.S.
506, 522-23 (1995) ("[A] criminal defendant [has] the right to have
a jury determine, beyond a reasonable doubt, his guilt of every
element of the crime with which he is charged."). Meuse argues
32
that this was not only "trial error" but "structural error," which
is not subject to harmless-error review. See Arizona v. Fulminante,
499 U.S. 279, 280 (1991). The law is otherwise, however. See
Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 1836-37
(1999). As Meuse does not dispute that the government introduced
overwhelming evidence that the businesses at issue sold goods which
moved in interstate commerce, and it appears beyond a reasonable
doubt that the jury would have found for the government on this
element, the error was harmless; a fortiori, it cannot have been
plain error. See Owens, 167 F.3d at 754 (finding no plain error
where "overwhelming" evidence proved omitted element).
K. Sentence Enhancement for Obstruction of Justice
John Meuse claims that the district court erred in
imposing a two-level enhancement for obstruction of justice. See
U.S.S.G. § 3C1.1. During Ferguson’s cross-examination, Meuse
blurted out in open court: "I want to fire [my] lawyer because I
believe she’s working with the prosecution." Thereafter, in
various colloquies with the court, Meuse requested a severance,
claimed that he had told his attorney earlier in the day that he
intended to fire her, and maintained that he had been forced to
blurt out the above information in open court once he realized that
she did not intend to convey his wishes to the court.
A district court finding that a defendant obstructed
justice is reviewed only for clear error, see United States v.
33
Cardales, 168 F.3d 548, 558 (1st Cir. 1999), and where the record
supports at least two permissible inferences, the factfinder’s
choice between them cannot be clearly erroneous. See United States
v. Veilleux, 949 F.2d 522, 525 (1st Cir. 1991).
The record contained ample support for a preponderance-
of-the-evidence finding that Meuse uttered this statement with
intent to obstruct the trial and gain an advantageous severance,
see United States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996),
whereas the Meuse claim depended entirely on his self-serving
characterization of the relevant events. His counsel represented
to the district court that Meuse had not requested that she inform
the court that Meuse wanted to fire her, but only that he was
unhappy with the Ferguson cross-examination and was considering
whether or not to dismiss her. Given the equivocal account which
Meuse gave of their conversation,21 the district court, as
factfinder, was entitled to credit counsel’s version. The district
court noted as well that earlier Thomas Meuse had used his attorney
to pass notes to the court. Thus, John Meuse plainly was aware
that there were other means of communicating with the court besides
blurting out his concerns in open court.
Thus, the record amply supported the district court
finding, by a preponderance of the evidence, that Meuse "calculated
21
After the district court twice asked if Meuse had requested
that his attorney so inform the court, Meuse could only respond: "I
thought I made it clear."
34
[his outburst] to create the greatest damage to his trial," in
hopes of obtaining a belated severance.
L. The Restitution Order
Finally, Todd Arsenault argues that the district court
erred in ordering $70,000 in restitution, without first considering
his ability to pay. He claims a limited future-earning potential
on the ground that he had reported income totaling only $1383 in
the preceding ten-year period, has serious medical and emotional
problems, and little education or vocational training.
We review restitution orders for abuse of discretion.
See United States v. LiCausi, 167 F.3d 36, 52 (1st Cir. 1999).
Sentencing courts need not make explicit factual findings on the
five factors enumerated in 18 U.S.C. § 3664(a), including the
defendant’s ability to pay, United States v. Vaknin, 112 F.3d 579,
591 (1st Cir. 1997), provided the record supports any implicit
finding. In this case, the district court specifically stated that
it had reviewed the presentence report, which included a detailed
outline of Arsenault’s financial prospects. Significantly, it
reflected that Arsenault would be relatively young when he
completed his five-year prison sentence and would have the
opportunity to work at his father’s business. Finally, Arsenault
was ordered to repay a mere 20% of the losses sustained by his
victims. We discern no abuse of discretion in the restitutionary
order.
35
III
CONCLUSION
Appellants’ many other arguments having been carefully
considered as well, and having been determined meritless, we affirm
their respective convictions and sentences.
Affirmed.
36
United States v. Balsam
Court: Court of Appeals for the First Circuit
Date filed: 2000-02-11
Citations: 203 F.3d 72
Copy CitationsCombined Opinion