United States v. Manning

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1199

UNITED STATES,

Appellee,

v.

TRENT MANNING,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Cyr and Stahl,
Circuit Judges.

Robert B. Mann with whom Mann & Mitchell was on brief for

appellant.
Sheldon Whitehouse, United States Attorney, with whom Assistant

United States Attorneys were on brief for appellee.

March 21, 1996

STAHL, Circuit Judge. On May 6, 1994, this court
STAHL, Circuit Judge.

vacated defendant-appellant Trent Manning's convictions for

possession with intent to distribute cocaine (Count I), use

of a firearm during and in relation to a drug trafficking

crime (Count II), and possession of a firearm by a convicted

felon (Count III), holding that prosecutorial misconduct

during closing arguments warranted a new trial. United

States v. Manning, 23 F.3d 570, 573-76 (1st Cir. 1994).

After his second jury trial in November of 1994, Manning

again was convicted on all three counts. Manning challenges

this latest round of convictions, claiming that the district

court erred in: (1) denying his motion for acquittal on

Count II, (2) admitting evidence of uncharged misconduct, (3)

denying his request for an expert, (4) precluding evidence

and argument regarding his potential sentence, (5) denying

his motion to suppress evidence found during the October 7,

1991 search, (6) instructing the jury, and (7) responding to

the jury's inquiry. Finding no merit in Manning's first six

claims, we affirm his convictions on Counts I and III.

Finding that the district court erred in responding to the

jury's inquiry, however, we vacate Manning's conviction on

Count II and remand Count II for a new trial.

I.
I.

BACKGROUND
BACKGROUND

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Viewing the evidence in the light most favorable to

the verdict, United States v. Wihbey, No. 95-1291, slip op.

at 2 (1st Cir. Feb. 6, 1996), we conclude that a reasonable

jury could have found the following facts.

Late in the afternoon on October 7, 1991, several

members of the Providence Police Department executed a search

warrant at Manning's mother's house, located at 151 Doyle

Avenue in Providence, Rhode Island. Just three or four

minutes before the raid, Detective David Lussier, who had

known Manning for some time, saw Manning and a passenger

drive by his surveillance position (in a parking lot about

fifty yards from 151 Doyle Avenue with a direct view into its

rear yard) in Manning's red Jeep Cherokee. Fearing that eye

contact with Manning had compromised his surveillance,

Lussier ordered that the warrant be executed.

Thereupon, Detective Joseph Lennon approached the

rear of 151 Doyle Avenue and saw Manning, whom he knew and

with whom he had conversed on other occasions, standing

outside the Cherokee and in front of the garage, holding a

brown briefcase in his left hand. Lennon identified himself

as a police officer and, with gun drawn, ordered Manning to

stop. Manning, ignoring this directive, walked slowly into

the garage with briefcase in hand, closing and locking the

door behind him. Manning's rottweiler, loose in the

driveway, delayed Lennon's pursuit of Manning for three to

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five minutes. Once inside the garage, Lennon found and

seized the briefcase and its contents, inter alia: two bags

of cocaine weighing 124.64 grams, various drug paraphernalia,

a loaded 9 millimeter handgun, and six copper pipe bombs.

Lennon did not, however, find Manning in his subsequent

search of the house.

Meanwhile, Lussier, having ordered the raid, drove

to the front of 151 Doyle Avenue, entered the front door, and

proceeded to the basement, where he found a broken window

through which Manning had likely escaped. One week later,

Manning turned himself in to the police.

II.
II.

DISCUSSION
DISCUSSION

A. Motion for Acquittal

Manning argues that there was insufficient evidence

to support his conviction for using a destructive device1

during and in relation to a drug trafficking crime, and so

the district court erred in denying his motion for acquittal

on Count II. We review the district court's disposition of a

motion for acquittal de novo, viewing the evidence, and all

reasonable inferences that may be drawn therefrom, in the

1. 18 U.S.C. 921(a)(3) defines "firearm" to mean "any
destructive device." Section 921(a)(4) defines "destructive
device" to mean "any explosive, incendiary, or poison gas . .
. bomb."

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light most favorable to the government. United States v.

Loder, 23 F.3d 586, 589-90 (1st Cir. 1994).

Approximately one month after oral arguments in

this case, the Supreme Court decided Bailey v. United States,

116 S. Ct. 501 (1995), and concluded that "use" of a firearm

in 18 U.S.C. 924(c)(1) means "active employment of the

firearm" which "includes brandishing, displaying, bartering,

striking with, and most obviously, firing or attempting to

fire, a firearm." Id. at 505, 508. Our careful review of

the record reveals that the government's evidence was

insufficient to show "use" under the Bailey standard. The

government did not present any evidence that Manning had

brandished, displayed, bartered, struck someone with,

fired/detonated or attempted to fire/detonate either the 9

millimeter handgun or the six pipe bombs. The evidence

presented at trial was simply that Manning had carried the

briefcase containing the gun, pipe bombs, drugs, and drug

paraphernalia into the garage of 151 Doyle Avenue and nothing

more.

The reach of 18 U.S.C. 924(c)(1), however,

extends beyond the use of a firearm. Section 924(c)(1)

applies to any person who either "uses or carries a firearm."

18 U.S.C. 924(c)(1) (emphasis added). At issue, therefore,

is whether the government succeeded in presenting evidence

sufficient to show that Manning was guilty of carrying a

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firearm during and in relation to any drug trafficking crime.

Conviction under 924(c)(1) requires proof beyond a

reasonable doubt that Manning: (1) committed the drug

trafficking crime of possession with intent to distribute as

charged in the indictment, (2) knowingly carried a firearm,

and (3) did so during and in relation to the drug trafficking

crime. See United States v. Wilkinson, 926 F.2d 22, 25-26

(1st Cir.), cert. denied, 501 U.S. 1211 (1991), and overruled

on other grounds by Bailey, 116 S. Ct. at 509. Because

Manning has not challenged the sufficiency of the evidence of

the first element, we restrict our analysis to the last two

elements and consider each in turn.

By narrowing the interpretation of "use" to

instances of active employment, the Bailey Court recognized

that the "carry" prong would take on a new significance.

Accordingly, the Court remanded Bailey and its companion

case, Robinson v. United States, No. 94-7492, to the District

of Columbia Circuit to consider liability for Bailey and

Robinson under the "carry" prong of 924(c)(1). Bailey, 116

S. Ct. at 509. In Bailey and Robinson, the firearms were

found in the trunk of a car and in a locked trunk in a

bedroom closet, respectively. Id. at 503-04. Determining

whether firearms found in these locations were carried will

require the District of Columbia Circuit to test the limits

of the proper understanding of "carry" in 924(c)(1). We

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need not determine the precise contours of the "carry" prong

here, however, as Manning's actions meet any reasonable

construction of the word. See Smith v. United States, 113 S.

Ct. 2050, 2054 (1993) (noting that words not defined by

statute should be given their ordinary or common meaning).

The word "carry" is variously defined as "to move

while supporting (as . . . in one's hands or arms)," "to move

an appreciable distance without dragging," and "to bring

along to another place." Webster's Third New International

Dictionary 343 (1986). Manning's alleged actions readily

meet all of these definitions. The government presented the

testimony of Detective Lennon that he saw Manning standing

outside his Cherokee and in front of the garage of 151 Doyle

Avenue, holding the briefcase; that he watched Manning, while

holding the briefcase in his left hand, walk into the garage;

and that minutes later upon discovering the briefcase in the

garage, he opened it and found, inter alia, a loaded 9

millimeter handgun and six pipe bombs. A reasonable juror

could easily conclude from this evidence that Manning had

carried the handgun and pipe bombs. In walking from the

Cherokee to the garage while holding the briefcase in his

left hand, Manning certainly was "moving" the briefcase

"while supporting" it in his hand. And if Manning was

carrying the briefcase, he necessarily was carrying the

contents thereof, namely, the handgun and pipe bombs.

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The government also presented ample evidence from

which a reasonable juror could conclude that Manning carried

the gun and bombs "during" and "in relation to" the crime of

possession with intent to distribute. Evidence that Manning

carried the gun and pipe bombs contemporaneously with the two

bags of cocaine and the drug paraphernalia readily satisfies

the "during" requirement. See United States v. Luciano-

Mosquera, 63 F.3d 1142, 1151 (1st Cir. 1995) (holding that

gun "carried at a time when the offense was in progress"

constituted "during" for purposes of 924(c)(1)). Evidence

that Manning carried the gun and bombs in the same briefcase

as the drugs readily satisfies the "in relation to"

requirement. Because the government presented evidence that

could establish each of these elements beyond a reasonable

doubt, we affirm the district court's denial of Manning's

motion for acquittal on Count II.

B. Admissibility of Evidence of Uncharged Misconduct

Manning argues that the district court erred by

allowing the prosecutor to cross-examine him about his prior

drug dealing and to introduce the items seized from the

basement of 151 Doyle Avenue. Manning's attorney objected to

the introduction of this evidence as impermissible "uncharged

misconduct" evidence under Fed. R. Evid. 404(b) and, in the

alternative, unduly prejudicial under Fed. R. Evid. 403.

After reciting the standard of review, we consider Manning's

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testimony on cross-examination and the items seized from the

basement, in turn.

Because the admission of Rule 404(b) evidence is

committed to the sound discretion of the trial judge, we will

reverse on appeal only for abuse of discretion. United

States v. Garcia, 983 F.2d 1160, 1172 (1st Cir. 1993). We

will reverse a district court's Rule 403 balancing "only in

'exceptional circumstances.'" Id. at 1173 (quoting United

States v. Garcia-Rosa, 876 F.2d 209, 221 (1st Cir. 1989),

cert. denied, 493 U.S. 1030 (1990)).

On cross-examination, the prosecutor successfully

elicited testimony from Manning about his drug dealing

efforts prior to October 7, 1991. In particular, Manning

testified that he had previously sold cocaine; that he would

package the cocaine in a specific type of plastic bag; that

he weighed drugs on two particular scales; and that, as

denoted by his handwriting in his drug ledger, he would

distribute 100 bags of cocaine every two days to a particular

location. The prosecutor also questioned Manning about his

use of a pager and the source of his drug supply. All of

this was done over the objection of Manning's attorney.

Rule 404(b) provides that although evidence of

other crimes, wrongs, and acts is not admissible to prove

criminal propensity, it may be admissible for other purposes

that do not involve character, such as proof of intent,

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preparation, knowledge or absence of mistake. Garcia, 983

F.2d at 1172. Moreover, when charges of drug trafficking are

involved, this court has often upheld the admission of

evidence of prior narcotics involvement to prove knowledge

and intent. See United States v. Hadfield, 918 F.2d 987, 994

(1st Cir. 1990) (collecting cases), cert. denied, 500 U.S.

936 (1991). Manning was charged in Count II with knowingly

possessing the two bags of cocaine in the briefcase with the

intent to distribute them. Manning's statements regarding

his prior drug dealing are highly probative of the knowledge

and intent elements of that offense. The evidence that

Manning had previously sold cocaine makes it more likely both

that he was aware of the contents of the plastic bags in the

briefcase and that he intended to distribute the two bags of

cocaine.

Having determined that Manning's statements were

probative, we must consider whether their probative value was

substantially outweighed by their prejudicial effect. Fed.

R. Evid. 403. The district court minimized any prejudicial

impact of the prior drug dealing evidence by instructing the

jury, contemporaneously and again in its final instructions,

about the proper use of prior bad act evidence. See United

States v. Powell, 50 F.3d 94, 101 (1st Cir. 1995) (finding

that limiting instruction insulated against prejudicial

impact); see also, Richardson v. Marsh, 481 U.S. 200, 206

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(1987) (holding that reviewing court typically presumes jury

followed instructions). Given the district court's limiting

instructions and its broad discretionary power to balance

probative value against prejudicial effects, we cannot say

that the district court abused its discretion in admitting

the evidence of Manning's prior drug dealing.

Manning also challenges the district court's

admission of items such as scales, bags, glassine packets

stamped "Super Power" and "Hot Pursuit," rubber bands, and

straws, seized from the basement and garage of 151 Doyle

Avenue. Manning's assertion, however, that the items seized

are governed by Rule 404(b) is wide of the mark. Rule

404(b), by its very terms, excludes only extrinsic evidence--

"evidence of other crimes, wrongs, or acts"--whose probative

value exclusively depends upon a forbidden inference of

criminal propensity. Hadfield, 918 F.2d at 994. Evidence

intrinsic to the crime for which the defendant is on trial,

accordingly, is not governed by Rule 404(b). United States

v. Tutiven, 40 F.3d 1, 5 (1st Cir. 1994) ("The cases are

legion in which similar intrinsic circumstantial evidence has

been admitted without occasioning either challenge or

analysis under Rule 404(b)."), cert. denied, 115 S. Ct. 1391

(1995).

The items seized from 151 Doyle Avenue most

certainly qualify as intrinsic to the crime of possession

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with intent to distribute with which Manning was charged.

During the search on October 7, 1991, each of the items were

found in the basement of 151 Doyle Avenue, save one scale

discovered in the garage. Should a juror have chosen to

believe that Manning occupied the basement bedroom of 151

Doyle Avenue,2 the existence of the drug paraphernalia there

is directly probative of both Manning's knowledge that the

bags in the briefcase contained cocaine and his intention to

distribute that cocaine. See United States v. Nason, 9 F.3d

155, 162 (1st Cir. 1993) (upholding admission of scales,

bags, and baggies seized from motel room registered to

defendant's girlfriend at time of defendant's arrest on the

marijuana charges for which he was on trial), cert. denied,

114 S. Ct. 1331 (1994). The district court did not abuse its

discretion in admitting the drug-paraphernalia evidence.

C. Request for an Expert

Manning also complains that the district court

erred in denying his request for appointment of an expert.

The Criminal Justice Act, 18 U.S.C. 3006A(e)(1), provides

that "a person who is financially unable to obtain . . .

expert . . . services necessary for an adequate defense" may

obtain them after demonstrating in an ex parte hearing that

2. The government presented evidence from which the jurors
could draw such a conclusion. For instance, the government
introduced pager and veterinary bills addressed to Trent
Manning, 151 Doyle Avenue and police testimony that these
bills were found in the basement bedroom area.

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such services are "necessary." A district court's denial of

a request for such services is reviewed only for an abuse of

discretion. United States v. Mateos-Sanchez, 864 F.2d 232,

240 (1st Cir. 1988); United States v. Fosher, 590 F.2d 381,

384 (1st Cir. 1979).

At the hearing on this issue, Manning's attorney

requested the expert services of a retired Providence police

officer who purportedly would have testified about the

inadequacies in the Providence Police Department's

investigation of Manning's case. In particular, the expert

would have highlighted the police's failure to test the

broken glass of the basement window for fingerprints and to

trace the origins of the pipe bomb components.

Generally, expert services have been found

necessary when the proffered expert testimony was pivotal to

the indigent defendant's defense. See Mateos-Sanchez, 864

F.2d at 239-40. For instance, courts have appointed a

fingerprint expert when a fingerprint, alleged to be the

defendant's, was the primary means of connecting the

defendant to the crime, see United States v. Durant, 545 F.2d

823, 827 (2d Cir. 1976), and a psychiatrist when the

defendant's sanity at the time of the offense was at issue,

see United States v. Williams, 998 F.2d 258, 264 (5th Cir.

1993), cert. denied, 114 S. Ct. 940 (1994). Manning's

proffered expert testimony on the adequacy of the police

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investigation, however, was not critical or necessary to his

defense.

Manning was charged with using or carrying

destructive devices during and in relation to a drug

trafficking crime. Whether Manning had manufactured the

bombs was not at issue. The proffered testimony that the

police failed to trace the bomb components, therefore, cannot

be said to be central to Manning's defense of Count II.

Given the eyewitness testimony of Manning carrying the

briefcase and all the physical evidence found in the basement

and garage, including a scale with Manning's fingerprint on

it, the expert testimony on the police's failure to

fingerprint the broken glass from the basement window is

likewise peripheral to Manning's defense of Count II.3

Moreover, as the district court noted, Manning's

proffered expert testimony about whether or not a particular

police act or omission was good police practice had the

potential of confusing the jury and diverting its attention

from its task of assessing the adequacy of the prosecution's

evidence on the issue of guilt. Upon these facts, we cannot

say that the district court's denial of Manning's request for

3. We also note that Manning's attorney was able to place
these alleged investigative shortcomings before the jury on
cross-examination of the officers.

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appointment of the proffered expert was an abuse of its

discretion.4

D. Jury Nullification

At two points during trial, Manning's attorney

attempted to alert the jury to the potential term of

imprisonment Manning would face if convicted on Count II.5

During Manning's direct examination, Manning's attorney

requested the court's permission to ask Manning whether, in

October of 1991, he was aware of the substantial prison term

facing someone found using or carrying a destructive device

during and in relation to a drug trafficking crime. The

district court denied the request as irrelevant, noting that

sentencing matters are entrusted to the judge, not the jury.

At the close of all the evidence, Manning's attorney again

approached the court at sidebar, this time seeking permission

to appeal, in his closing argument, to the jury's power of

nullification by informing the jury of the prison term

Manning would face if convicted of Count II. The district

court also denied this request, invoking the rationale it had

used earlier.

4. This is not to say, however, that expert opinion on the
adequacy of a police investigation can never be necessary to
an indigent defendant's defense nor do we so rule.

5. Under 924(c)(1), using or carrying a destructive device
carries a mandatory thirty-year prison term.

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Because we reverse Manning's conviction on Count II

for jury coercion, see part II.G. infra, we need not reach

this issue. We nonetheless offer the following cursory

analysis of the second argument as guidance. We have

consistently held that a district court may not instruct the

jury as to its power to nullify. See United States v.

Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993), cert. denied,

114 S. Ct. 2714 (1994); United States v. DesMarais, 938 F.2d

347, 350 (1st Cir. 1991); Garcia-Rosa, 876 F.2d at 226;

United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969),

cert. denied, 397 U.S. 991 (1970). An attorney's attempt to

achieve the same end indirectly, by arguing the severity of

the punishment to the jury, is equally impermissible. See

United States v. Calhoun, 49 F.3d 231, 236 n.6 (6th Cir.

1995) (holding that a defendant did not have the right to

inform the jury of possible punishment or of its power to

nullify a law or sentence); cf. United States v. Coast of

Maine Lobster Co., 538 F.2d 899, 903-04 (1st Cir. 1976)

(holding that prosecutor's televised comment that white

collar criminal sentences are too small, communicated to

jurors of ongoing white collar criminal trial, created

reversible error).

E. Motion to Suppress

Before his first trial, Manning moved to suppress

the evidence found during the October 7, 1991 search of 151

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Doyle Avenue. After a hearing, the district court denied the

motion. Manning later objected to the evidence as it was

offered at trial and then raised the objection on appeal. We

did not address the suppression issue, however, having

ordered a retrial on other grounds. On appeal from his

second trial, Manning again asks us to consider the legality

of the search. This time, Manning had neither renewed his

suppression motion nor registered his objection to the

admission of the evidence below. While Manning maintains

that this was unnecessary because the decisions of the first

trial judge are the law of the case, the government contends

that his suppression arguments are waived. We need not enter

this thicket, however, because assuming arguendo that

Manning's arguments are preserved, we find that they still

fail.

Manning attacks the district court's denial of his

suppression motion on two grounds. First, Manning contends

that the affidavit supporting the search warrant does not

establish probable cause, citing the staleness of the

information regarding the confidential informant's controlled

buy, the dearth of information about that informant's

credibility, and a general lack of detail. Second, Manning

contests the district court's refusal to conduct an in camera

proceeding to test the reliability of the confidential

informant ("CI") regarding the controlled buy. Manning

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argues that an in camera review was necessary to his mounting

a Franks challenge6 to the accuracy of the officer's

statements in the affidavit supporting the search warrant.

After summarizing the affidavit, we consider Manning's second

claim first.

On October 7, 1991, to support his application for

a warrant to search 151 Doyle Avenue, Detective Lussier

attested to the following facts. "During the past few

weeks," while Lussier was investigating marijuana trafficking

at 151 Doyle Avenue, Manning had used keys to enter 151 Doyle

Avenue and appeared to be living there. While Manning was

home, several people had come to the rear door of the house

and stayed for only a short time. Lussier took numerous

phone complaints about narcotics trafficking at 151 Doyle

Avenue. A CI, who had bought marijuana from Manning

previously, made a controlled buy from Manning at 151 Doyle

Avenue. Before the buy, Lussier searched the CI for money

and contraband, gave the CI money, and witnessed the CI enter

the rear of the house.

6. Under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), a

defendant may overcome the presumption of validity
surrounding affidavits supporting search warrants and obtain
an evidentiary hearing, if he "makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of
probable cause."

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We recognize that when an affidavit relies

primarily on information provided by a CI, a defendant will

lack the information needed to make a Franks showing. See

United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993). In

such cases, where the defendant challenges the accuracy of

the affidavit but has failed to make the "substantial

preliminary showing" required by Franks, the court may

conduct an in camera interview of the officer-affiant, and,

if necessary, of the informant. See United States v.

Southard, 700 F.2d 1, 10-11 (1st Cir.), cert. denied, 464

U.S. 823 (1983). A district court is not required to do so,

however; the decision whether an in camera proceeding is

needed to test the officer-affiant's7 credibility rests

entirely with the district court. See United States v.

Jackson, 918 F.2d 236, 241 (1st Cir. 1990). We review a

district court's denial of a defendant's request for an in

camera proceeding for abuse of discretion. See United States

v. Valerio, 48 F.3d 58, 62-63 (1st Cir. 1995); Higgins, 995

F.2d at 3.

Manning argues that he presented evidence at the

suppression hearing sufficient to contradict Lussier's

statements in the affidavit and thereby require the district

court to question his credibility. Specifically, Manning's

7. Franks only allows impeachment "of the affiant, not of

any nongovernmental informant." Franks, 438 U.S. at 171.

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mother testified that she was home all day on October 7, 1991

and that no sale of drugs could have taken place in her home

without her knowledge. Manning's attorney told the district

court that, although the affidavit does not specify the date

of the controlled buy, he recalled that a police officer, not

Lussier, had testified at the preliminary examination that

the buy took place on October 7, 1991. Manning concludes

from these two facts that the controlled buy could not have

taken place on October 7, 1991, and therefore, that Lussier

must have lied.

As the district court recognized, however, two

problems inhere in this reasoning. First, the affidavit does

not provide that the controlled buy occurred on October 7,

1991.8 Second, even if it did, Mrs. Manning's testimony

does not "preclude at all the possibility that Officer . . .

Lussier is telling the truth." Mrs. Manning admitted that

Manning was at 151 Doyle Avenue for at least some period of

time on October 7, 1991, and she did not claim that he was

never out of her sight. Given the tenuous basis for

Manning's challenge to Lussier's veracity, the district

court's denial of Manning's request for an in camera review

was well within its discretion.

8. We find no clear error in the district court's not
accepting Manning's attorney's recollection that an unnamed
police officer, not present during the controlled buy,
testified at the preliminary examination that the buy
occurred on October 7, 1991.

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Having so decided, we quickly dispose of Manning's

challenge to the validity of the search warrant for lack of

probable cause. Assuming arguendo that Manning is correct

about the warrant's invalidity, we nonetheless agree with the

district court's conclusion that the "good faith" exception

to the exclusionary rule applies here. United States v.

Leon, 468 U.S. 897, 913 (1984). In Leon, the Supreme Court

held that, with limited exception, the exclusionary rule

should not apply when police officers reasonably rely on a

warrant that subsequently is determined to be invalid. 468

U.S. at 922. Upon de novo review, see United States v.

Zapata, 18 F.3d 971, 975 (1st Cir. 1994) (reviewing district

court's "ultimate constitutional conclusions" in a

suppression order de novo), we find that Lussier's affidavit

had ample indicia of probable cause "'to render official

belief in its existence'" reasonable. Leon, 468 U.S. at 923

(quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)

(Powell, J., concurring in part)). Accordingly, we affirm

the district court's denial of the motion to suppress the

items seized from 151 Doyle Avenue.

F. Jury Instructions

Manning raises two challenges to the jury

instruction defining the offense of using or carrying a

firearm during and in relation to a drug trafficking crime.

First, he argues that the district court failed to instruct

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the jury that the destructive devices must have actually been

used. Second, he claims that the court failed to instruct

that the destructive devices must have facilitated the

charged crime of possession with intent to distribute, and

not some other past or future drug trafficking crime.

Our reversal of Manning's conviction on Count II

for jury coercion, see part II.G. infra, however, renders

consideration of the legality of the court's 924(c)(1)

instruction unnecessary.9

G. Responses to Jury's Inquiry

Manning contests the district court's responses to

a specific jury query on two grounds: (1) that the district

court's response was tantamount to a directive that the jury

must reach a verdict on Count II, and (2) that the district

court did not cure this harm by polling the jurors -- after

they had reached a verdict but before the verdict was taken -

- on whether they had felt compelled to reach a verdict.

Mindful of the district court's broad discretion in "the

9. Although its 924(c)(1) instruction initially made clear
that the predicate drug trafficking crime was possession of
cocaine with intent to distribute it as charged in Count I,
in later instructions, the district court stated that "there
must be proof that the firearm was connected to or played a
role in the commission of a drug trafficking crime."

(Emphasis added). In future instructions, we caution the
district court to endeavor to avoid generic references to "a
drug trafficking crime" when referring to the particular
predicate offense.

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giving, or withholding, of a supplemental instruction, or the

contents of it if given," United States v. Parent, 954 F.2d

23, 25 (1st Cir. 1992), we nonetheless find that the district

court transgressed the bounds of its discretion under the

unusual set of circumstances that unfolded after the jury

retired to deliberate. See United States v. Akitoye, 923

F.2d 221, 227 (1st Cir. 1991) (reviewing for abuse of

discretion district court's denial of jury's request to have

testimony read back). We outline the relevant history.

The jury began its deliberations in earnest10 on

the morning of November 22, 1994. After a few hours, the

jury sent the court a note, asking "Which scale was found in

the bedroom and which scale had the fingerprint?" After

consulting the parties, the district court responded, "It

would not be proper for me to tell you what the evidence

establishes or does not establish. That's a matter that only

you can determine." Later, the jury sent another

communication to the court, this time stating, "We do not

have an [sic] unanimous decision on Count Number Two. Must

we continue to discuss until we have? It is apparent that

we'll not change our minds." At a chamber conference with

both counsel, the court proposed the following response:

10. The court submitted the case to the jury the previous
evening. After deliberating for approximately fifteen
minutes, however, the jury chose to go home and reconvene the
next morning.

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"Would reading any portion of the testimony to you assist you

in reaching a decision? If so, please tell me what portions

of testimony of which witness you would like." Perceiving

deadlock on Count II, Manning's attorney objected to the

court's response and moved for a mistrial. In the

alternative, he proposed that the response advise the jury

that it was not obliged to reach a verdict. The district

court denied the motion, rejected the suggestion, and sent

its suggested response.

The jury then informed the court, "We would like to

hear testimony from Officer Lennon and Agent Lennon." Over

Manning's continued objection, the court replied, "Is their

[sic] any particular portion or portions of the testimony of

Officer Lennon or Agent Lennon that would be helpful to you?"

After receiving no reply, the district court had the clerk

ask the jurors whether they wished to continue deliberating

or go home and return the next day. Thereafter, the court

received a note stating that a verdict had been reached.

Apparently concerned about the effect of its second response,

the district court, before taking the verdict, queried the

jury collectively in open court as follows:

I just wanted to make sure before I even
ask about the verdict whether there is
anybody here who is under the impression
that you were required to reach an [sic]
unanimous decision. If you didn't, you'd
be kept here until you did. I wanted to
make sure nobody is under that
impression, had the feeling you had to

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reach an agreement because you felt that
you would be kept here until you did or
because you felt that you had to all
agree in order to be released from jury
service. Is there any of you that had
that feeling?

No juror responded to the inquiry. The jury then returned

its verdict of guilty on all counts.

This court has recognized that when a jury

indicates that it is deadlocked, a supplementary charge

instructing it to return and attempt to reach a verdict may

prejudice a defendant. See United States v. Angiulo, 485

F.2d 37, 39 (1st Cir. 1973). For instance, "such a charge

may cause a jury to agree when they might otherwise never

have come to agreement, thereby losing for the defendant

whatever safeguard he might have had in a hung jury, a

declaration of mistrial, and either a new trial or a

subsequent decision by the prosecutor not to retry the case."

Id. Accordingly, we have instructed district courts to

include three elements in any such supplementary charge to

ameliorate its prejudicial effect. Id. A district court

should instruct jurors in substance that (1) members of both

the majority and the minority should reexamine their

positions, (2) a jury has the right to fail to agree, and (3)

the burden of proving guilt beyond a reasonable doubt remains

with the government. Id.

Having indicated that it was deadlocked on Count

II, the jury in the present case proceeded to inquire whether

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it was obliged to reach a verdict on Count II. Rather than

answering this pointed question "yes" or "no," the district

court responded with a question: "Would reading any portion

of the testimony to you assist you in reaching a decision?"

This response not only failed to discourage the notion that

the jury was bound to continue to deliberate indefinitely, it

suggested the opposite, i.e., that a jury is required to do

so.11 Having asked whether continued deliberation on Count

II was necessary, and being offered a review of testimony in

response, a rational lay jury could reasonably have inferred

that the court wanted it to reach a verdict, regardless of

whether it could do so in good conscience.

Having sent the jurors an improper signal, the

district court did not dispel this misimpression by

collectively asking the jury in open court, after it had

reached its verdict, whether that verdict had been coerced.

At that point, the dynamics had fundamentally changed.

Jurors who may have been hold-outs earlier had now voted to

convict. Asking such a juror to admit before his fellow

jurors that he had voted against his will was asking too

much. Moreover, the district court never informed the jurors

11. Providing a modified Allen charge at this juncture, on

the other hand, would have informed the jurors that they need
not surrender an honest conviction for the mere purpose of
returning a verdict and at the same time encouraged them to
try to reach a verdict, fully aware that the onus of
reexamination is not on the minority alone and that the
burden of proof remains with the government.

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that if any of them did admit to being coerced, the court

would take their verdicts on Counts I and III, discharge the

jury, and retry Count II before another jury. The unhappy

prospect of being sent back to the jury room for further

deliberations may also have prevented jurors from admitting

coercion. Because we cannot say that the verdict on Count II

was not the product of coercion, we vacate the conviction on

Count II and remand for a new trial.

III.
III.

CONCLUSION
CONCLUSION

We affirm Manning's convictions and sentences on

Counts I and III, vacate his conviction and sentence on Count

II, and remand Count II for a new trial.

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