UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1754
UNITED STATES,
Appellee,
v.
BRIAN SMITH,
Defendant, Appellant.
No. 95-1857
UNITED STATES,
Appellee,
v.
GERALD YANOVITCH,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Charles W. Rankin, with whom Rankin & Sultan were on brief for
appellant Brian Smith.
Michael C. Bourbeau for appellant Gerald Yanovitch.
George W. Vien, Assistant United States Attorney,
with whom Donald K. Stern, United States Attorney, Carole S. Schwartz
and Michael D. Ricciuti, Assistant United States Attorneys, were on
brief for appellee.
November 26, 1996
CAMPBELL, Senior Circuit Judge. CAMPBELL, Senior
Circuit Judge. A United States Grand Jury for the District
of Massachusetts returned an indictment charging defendants-
appellants Brian Smith ("Smith") and Gerald Yanovitch
("Yanovitch") with being felons-in-possession of a firearm
(Count One) and ammunition (Count Two), in violation of 18
U.S.C. 922(g) (1976 & Supp. 1996), 2 (1969). After a
five-day trial, a jury convicted the defendants-appellants on
both counts of the indictment. Prior to sentencing, the
district court, citing double jeopardy concerns, required the
government to elect between counts, and the government chose
to retain the conviction under Count Two. The district court
sentenced Smith to the statutory maximum of 120 months in
prison without supervised release or fine, and with a $50
assessment. The court sentenced Yanovitch to 78 months in
prison, with three years supervised release, no fine and a
$50 assessment. Both defendants filed timely notices of
appeal. We affirm.
I.
At approximately 8:00 to 8:30 p.m. on Friday,
December 2, 1994, Mark Duggan was in Charlestown,
Massachusetts to pick up a friend, Jonellen Ortiz. As Duggan
drove to the parking lot in the rear of Ortiz's apartment
building, he passed Smith. Duggan pulled his car into the
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parking lot and stopped. Through his rear view mirror,
Duggan saw Smith approaching his car from behind.
Smith and Duggan had had a prior confrontation in
Charlestown approximately two months earlier concerning a
woman, Colleen King, who was the mother of Smith's son and
Duggan's former girlfriend.
Duggan got out of the car, exchanged words with
Smith, who was thirty to forty feet away, and then reached
back into the car and retrieved a baseball bat. Smith
reached into his pants and pulled out a dark, small caliber,
semi-automatic handgun and showed it to Duggan. There was a
standoff, and Smith eventually left the area.
After the encounter with Duggan, Smith and King met
King's best friend, Melissa Brown, on a street in
Charlestown. Brown had known Smith for approximately five
years, and was the godmother of Smith's and King's son. The
three of them walked to a liquor store on Main Street in
Charlestown, where they purchased beer. They, then, went to
King's apartment, located in the same housing development in
which Ortiz lived.
Later in the evening, Yanovitch and his date,
Danielle Scanlon, arrived at King's apartment and joined the
others in drinking beer. All of them left King's apartment
and got into the large, dark-colored, four-door Lincoln Town
Car in which Yanovitch and Scanlon had arrived that evening.
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With Yanovitch driving, they traveled to a bar named "Kelly's
Cork and Bull" in South Boston. The group arrived between
11:30 p.m. and midnight, and stayed there about one and one-
half or two hours.
Near closing time, Smith and Yanovitch became
involved in a conversation with Robert Viens, Jr., Brown's
former boyfriend. Smith and Viens began to argue about a
gun, and the argument spilled into the street. Yanovitch,
King and Brown, as well as Viens's friend, Walter Veneau, and
the latter's girlfriend, Tammy Tetreault, followed them out
of the bar. Once outside, Yanovitch, King and Brown walked
over to their Lincoln, which was parked nearby.
Smith and Viens continued to argue outside the bar.
Smith said to Viens that he wanted to speak with him alone,
and the two of them walked down the street together away from
the bar. Smith, then, reached inside his jacket, and Viens
responded by throwing punches at Smith. The fight moved back
towards the Lincoln, as people tried to break it up. Veneau
pulled his friend Viens back from Smith as Smith was pulled
into the center of the Lincoln's back seat, with King on one
side of him and Scanlon on the other.
Yanovitch, who was still outside the Lincoln,
exchanged words with Viens, and then partially entered the
car through the driver's side door. From the back seat,
Smith handed a handgun to Yanovitch. Yanovitch got out of
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the car with the gun, proceeded to fire one round into the
ground, and then shot Viens. Viens ran and staggered up the
street away from Yanovitch. Yanovitch shot Viens again, and
Viens fell to the ground. From behind, Yanovitch closed on
Viens, pointed the gun at his head, and fired again.
Yanovitch, then, ran back to the Lincoln, got behind the
wheel and sped away with his friends.
After Yanovitch sped away, Veneau went to comfort
Viens, who was lying in the street. The Boston Police and
paramedics in an ambulance responded to the scene. The
paramedics found Viens alive, lying on his back in the
street. Viens had two small-caliber entry wounds and a third
small-caliber exit wound. One of the entry wounds was in his
left front chest, while the exit wound was in the right side
of his chest. Viens was uncooperative, refused to give his
name, and even told witnesses at the scene not to cooperate
with the police. The paramedics placed Viens in the
ambulance and took him to Boston City Hospital.
A friend drove Veneau to Boston City Hospital,
where he saw Viens's parents. Although he initially refused
to cooperate with the police, Veneau changed his mind after
speaking with Viens's father. Veneau, then, gave a tape
recorded interview to Boston Police Sergeant Detective James
Wyse.
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Without information from the victim or witnesses,
the police searched the area of the shooting, but initially
did not find any ballistics evidence. After speaking with
Veneau concerning the exact location of the shooting, police
officers returned to the crime scene and recovered two spent
.25 caliber shell casings. One of the casings was found
approximately fifteen to twenty-five feet from where Viens
was lying when the police and paramedics found him. The
other casing was recovered an additional ten to twenty feet
away from the first casing.
Smith and Yanovitch were arrested on the basis of a
complaint. On January 24, 1995, a grand jury returned an
indictment charging Smith and Yanovitch with being felons-in-
possession of a firearm (Count One) and ammunition (Count
Two), in violation of 18 U.S.C. 922(g) (1976 & Supp.
1996), 2 (1969). At trial, Smith and Yanovitch stipulated
that they were convicted felons at the time of the shooting.
The government called a paramedic, Michael
Sullivan, and two police officers, Wyse and Lieutenant Gary
French, who had responded to the scene. After speaking with
Veneau at Boston City Hospital, French returned to the crime
scene and recovered the two shell casings. The government
also called Alcohol, Tobacco and Firearms ("ATF") Special
Agent, Allan Offringa, who testified on direct examination
that the .25 caliber shell casings were manufactured outside
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Massachusetts, and that the only .25 caliber pistol
manufactured in that state was manufactured by a company
named Harrington and Richardson ("H & R"), which started
making the gun in 1909 and stopped doing so before World War
II. Boston Police Ballistician, Edward Szalno, testified
that the marks found on the spent shell casings were not made
by an H & R pistol.
The government obtained compulsion/immunity orders
for two of the women who were in the car with Smith and
Yanovitch. Although these women, Brown and Scanlon, claimed
that they did not see the shooting, they did confirm that
they were out with Smith, Yanovitch and King on the evening
in question, and that Yanovitch got into the driver's seat of
the car shortly after they heard gun shots. Both women also
confirmed that Smith was seated in the middle of the back
seat of the car. Duggan was called as a witness by the
government. He recounted his confrontation with Smith
earlier in the evening in question. Veneau and Tetreault
testified to having witnessed the shooting. They said that
the man in the middle of the back seat of the car handed
Yanovitch a gun, which the latter used to shoot Viens.
After the trial and conviction of Smith and
Yanovitch on both counts of the indictment, and the
government's election of Count Two, the court sentenced Smith
to the statutory maximum of 120 months in prison, and
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Yanovitch to 78 months in prison, with three years of
supervised release.
II.
On appeal, Smith presents a host of issues,
claiming errors at trial and in sentencing. As most of these
issues were not raised in the district court, they are
reviewable on appeal only for plain error. Yanovitch
challenges his sentence and says that he adopts by reference
any additional issues raised by Smith which could materially
affect his rights in this case.
A. The Nondisclosure of Test Results
At trial, Ballistician Edward Szalno testified that
the two shell casings that were recovered from the crime
scene were fired from a .25 caliber semi-automatic weapon,
but that the weapon was not a Harrington & Richardson ("H &
R") pistol. Since H & R is the only company that has ever
manufactured a .25 caliber semi-automatic weapon within the
state of Massachusetts, the effect of this testimony was to
indicate that the gun used had traveled in interstate
commerce. Prior to testifying, Szalno had test-fired an H &
R .25 caliber semi-automatic pistol, and had compared the
shell casings with those found at the crime scene. This
comparison confirmed his earlier conclusion that the casings
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recovered from the crime scene were not fired from an H & R
pistol.
Smith's counsel says he first became aware of this
test-firing during his cross-examination of Szalno. He,
then, moved to strike Szalno's testimony on the ground that
the government had violated its discovery obligations by
failing to inform the defense of the test. Counsel argued
that this discovery violation affected his cross-examination
and prejudiced Smith's defense. The court ruled that the
government should have provided defense counsel with the
observed results of the test-firing, even though no written
report had been generated. The court refused, however, to
strike Szalno's testimony, noting that defense counsel had
not sought a continuance to counter the evidence and had, in
effect, created the problem at hand by asking questions
without first determining the likely responses.
The provisions that might arguably have required
advance disclosure of the test-firing results are Rule 116.1
of the Local Rules of the United States District Court for
the District of Massachusetts and Federal Rule of Criminal
Procedure 16(a)(1)(D). The former states, in relevant part,
"The government shall disclose, and allow the defendant to
inspect, copy and photograph, all written materials as
follows: (3) . . . all scientific tests, experiments and
comparisons, or copies thereof, made in connection with a
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particular case." D. Mass. R. 116.1(a)(3). As the Local
Rule is expressly limited to written materials, of which none
were generated here, it was not violated.
The other proviso upon which Smith relies is
Federal Rule of Criminal Procedure 16(a)(1)(D), which does
not speak specifically of written materials only.1 However,
the words "inspect and copy or photograph" logically suggest
that the items to be disclosed be tangible enough to be
susceptible to inspection, copying or photographing. Fed. R.
Crim. P. 16(a)(1)(D); see also Fed. R. Crim. P. 16(a)(1)(A),
(C). Our circuit has expressly reserved decision on whether
Rule 16(a)(1)(D) requires the disclosure of unrecorded
personal observations of tests and the like. Compare United
States v. Veilleux, 40 F.3d 9 (1st Cir. 1994), with United
States v. Tejada, 886 F.2d 483 (1st Cir. 1989). Other
circuits, however, have held that such unrecorded information
is not covered by Rule 16(a)(1)(D). United States v. Shue,
766 F.2d 1122, 1135 (7th Cir. 1985) (the Rule does not
require disclosure of expert's oral statements made after
comparing photographs); United States v. Johnson, 713 F.2d
654, 659 (11th Cir. 1983) (where no report was prepared by
1. The relevant language of the Rule provides, "Upon request
of a defendant the government shall permit the defendant to
inspect and copy or photograph any results or reports
. . . of scientific tests or experiments, or copies therof,
which are within the possession, custody, or control of the
government . . . ."
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expert, no discovery obligation was incurred under the Rule).
See also United States v. Peters, 937 F.2d 1422, 1425 (9th
Cir. 1991) (similar language in Rule 16(b)(1)(B), "cannot
pertain to oral information"). We think the above decisions
of the Seventh, Eleventh and Ninth Circuits are consistent
with the plain language of Rule 16(a)(1)(D), and hold that
where the test result in question consisted of the expert's
unrecorded comparison of the test-firing casings with those
at the crime scene, Rule 16(a)(1)(D) did not obligate the
government to produce in advance the expert's conclusions.
This being so, we find no error in the court's refusal to
strike Szalno's testimony.2
While this ends the matter, we also agree with the
district court that there was a total absence of prejudice
from the nonproduction of the expert's observations following
the test-firing. Smith argues that, had he known about
Szalno's test-firing, he would not have cross-examined him in
the manner he did, to his detriment. However, before Szalno
took the stand, ATF Special Agent Offringa had already
testified that he had test-fired an H & R pistol, and that he
had given the casings to Szalno for a comparison. In
addition, Szalno himself testified on direct examination that
2. The arguments on this appeal do not involve the separate
requirements of Rule 16(a)(1)(E) on Expert Witnesses, which
requires the government, on the defendant's request, to
disclose a summary of the expert's opinions, the bases and
the reasons therefor.
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he had examined two cartridge cases that had been fired from
an H & R .25 caliber semi-automatic pistol and had made
reference to the FBI's General Rifle and Characteristics
book. Smith was, therefore, on notice prior to cross-
examination that Szalno had compared the casings from the
crime scene with others that were test-fired from an H & R
pistol. The test-firing of an H & R pistol was, moreover,
relevant only to the interstate element of the firearm
convictions, which the government later elected to dismiss.
The test-firing was irrelevant to the ammunition charges upon
which both Smith and Yanovitch were sentenced, it being
undisputed the casings had been manufactured in Arkansas. As
only the latter convictions stand, the claimed error would
have been harmless.
B. The Admissibility of Evidence Concerning Smith's
Possession of a Firearm Earlier on the Night in Question
Duggan testified that he had a confrontation with
Smith earlier on the evening in question, in which Smith
displayed a small, semi-automatic handgun. Smith contends
that such testimony was admitted in violation of Federal Rule
of Evidence 404(b) because it was evidence of a prior bad act
offered solely to prove Smith's propensity to use guns.3 For
3. 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, provided that
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evidence of this sort to be admissible, it must be shown to
bear some special relevance to an aspect of the case at hand,
other than merely to the defendant's propensity to do bad
things. See United States v. Cortijo-Diaz, 875 F.2d 13, 15
(1st Cir. 1989). Here, Smith argues, the testimony lacked
such special relevance and was used by the government simply
as propensity evidence.
Smith did not, however, object at trial to Duggan's
testimony in this regard.4 Our review is, therefore, limited
to plain error. Under that standard, the burden falls on
appellants to show that there is an error, that the error is
clear or obvious, and that the error affected the outcome of
the proceedings below. United States v. Olano, 507 U.S. 725,
732-34 (1993). Because the challenged testimony was proper
evidence of the crimes charged, the court did not commit
error, much less plain error.
Far from merely relating to "other crimes, wrongs,
or acts," Fed. R. Evid. 404(b), Duggan's testimony helped
upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such evidence it
intends to introduce at trial." Fed. R. Evid. 404(b).
4. Smith had objected earlier to questions about
conversations Duggan might have had with Smith regarding
King, complaining that such conversations were irrelevant.
At sidebar, the government explained the relevance of such
testimony. Smith did not object thereafter. Neither did he
object to that portion of the government's closing argument
based upon Duggan's testimony.
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establish that Smith knowingly possessed a firearm (Count
One) and ammunition (Count Two), as required under 18 U.S.C.
922(g) (1976 & Supp. 1996). The decisions in United States
v. Diaz-Martinez, 71 F.3d 946 (1st Cir. 1995), and United
States v. Klein, 13 F.3d 1182 (8th Cir.), cert. denied, 114
S. Ct. 2722 (1994), are instructive. In Diaz-Martinez, the
defendant, who was charged with possession of firearms with
obliterated serial numbers in violation of 18 U.S.C. 922(k)
(1976 & Supp. 1996), was involved in a shootout immediately
before his arrest, at which time police recovered the
firearms. We dismissed defendant's argument that the
government improperly referred to the shootout in its closing
argument stating, "[B]ecause . . . the shootout was
integrally related to the evidence linking the guns to the
defendant (the possession charges), that evidence could not
have been barred by Rule 404(b)." Diaz-Martinez, 71 F.3d at
951 n.4. The Eighth Circuit reached the same conclusion in
Klein on comparable facts. Klein, 13 F.3d at 1184.
Even assuming that the possession charge related
only to the weapon with which Viens was shot, Duggan's
testimony that Smith was in possession of a similar handgun
earlier that evening tended to establish that Smith possessed
the same handgun a few hours later, at the time of the
shooting. The district court did not commit plain error in
admitting Duggan's testimony.
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C. The District Court's Control of Smith's Cross-
Examination
Smith argues on appeal that the district court
erroneously restricted his cross-examination of Duggan.
Duggan first informed police of his encounter with Smith
about two weeks before trial, after he had been taken into
custody on unrelated charges. Smith contends that he wanted
to establish on cross-examination that, at the time of his
testimony, Duggan had pending against him a number of
criminal charges. This line of questioning would have
enabled Smith to argue that Duggan had slanted his testimony
to gain better treatment from the government. Smith
complains that the district court severely limited his
ability in this regard.
A district court's discretion to control cross-
examination, while broad, is not unlimited. See United
States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996). However,
we find little indication that the court restricted cross-
examination in the asserted manner. Moreover, counsel did
not at the time complain to the court of being so limited,
hence we review only for plain error, Olano, 507 U.S. at 733-
34, a standard clearly not met on this record.
During the initial stages of cross-examination,
when counsel asked Duggan if he had cases pending against
him, the district court sustained the government's objection.
Defense counsel then asked whether the government had helped
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him with his pending cases. Duggan answered in the negative.
Later, counsel asked whether Duggan was aware that Ortiz had
filed a complaint against him for threatening her with bodily
harm. The government objected, and a sidebar followed.
During the sidebar, the district court stated, "Perhaps I was
precipitant." It allowed counsel to pursue the challenged
line of questioning. Duggan then conceded that he was aware
of Ortiz's complaint at the time he contacted the police.
After counsel finished questioning Duggan regarding Ortiz's
complaint, he did not proceed with similar questions relative
to other pending matters nor ask the court to allow him to do
so nor indicate that he felt unduly limited. We find no
merit in Smith's argument on appeal that the court improperly
restricted his cross-examination of Duggan.
D. Duggan's Prison Reference and its Impact on the Trial
Duggan mentioned during his direct examination that
King's "ex-boyfriend" had recently been released from prison,
an obvious reference, Smith says, to himself. Smith's
counsel promptly objected, and the court ordered the
challenged testimony struck.5 Smith's counsel did not ask
5. Duggan made the disputed reference during the following
exchange:
Q: And how did your relationship with [King]
develop?
A: Went on through the summer, the spring, and
the summer of '94 and stopped in October of
'94.
Q: And why did it stop on October of '94?
A: Her reason was, ah, that it was --
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for a mistrial at the time, but, on appeal, now argues that
the court erred in not declaring a mistrial sua sponte.
Absent a request for a mistrial, this court's
review of the court's failure to order a mistrial is for
plain error only. Olano, 507 U.S. at 733-34. Smith argues
that, since it was clear to the jury that Duggan was
referring to Smith as having been released from jail, the
response was so prejudicial as to necessitate a mistrial.
The district court, however, took some curative measures. It
sustained Smith's objection and struck Duggan's remark. As
counsel asked for no more at the time, the trial court could
reasonably assume that Smith was satisfied. The degree of
prejudice was neither so obvious nor so clear that only a
mistrial would have satisfied the needs of justice.
In United States v. Cresta, 825 F.2d 538 (1st Cir.
1987), this court laid out the factors that must be
Defense Counsel: Objection.
The Court: Sustained as to anything she
may have said.
Q: Without saying what she said, why did you stop
seeing her in October?
A: The relationship ended because her ex-
boyfriend got out of jail.
Defense Counsel: Objection.
The Court: The objection is sustained
and the answer is stricken. That's
something someone told you, right?
The witness: Yes, it would be, I guess.
The Court: Yes, its -- someone told you.
The witness can only testify to what they
know, not what people told them. The
answer is stricken; disregard it.
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considered in evaluating an otherwise improper reference to
an accused's prior imprisonment: whether the remark was
isolated, whether it was deliberate or accidental, whether
the trial court's instruction was sufficient to counteract
any prejudice that might have flowed from the remark, and
whether any remaining prejudice could affect the outcome of
the case. Cresta, 825 F.2d at 550. The remark in the
present case, as the government points out, was a single,
isolated and accidental reference by a witness trying to
answer a question designed to address defense counsel's
hearsay objection. Smith himself had already stipulated that
he was a convicted felon. The disputed remark added little,
therefore, to what the jury could already surmise. We do not
find plain error in the court's failure to order a mistrial
sua sponte.
E. The Questioning of Defense Witness Ortiz
On cross-examination, the government was allowed,
over Smith's unexplicated objection, to ask defense witness
Ortiz whether she had acted as a confidential informant for
the Drug Enforcement Administration ("DEA") and whether, as
such, she had helped the DEA obtain a search warrant for the
apartment of her friend, Colleen King. Smith now argues that
the district court should have excluded these questions
because they were irrelevant and because by implying that
Smith's girlfriend was the subject of a drug investigation
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they unduly prejudiced him and his case. Smith also asserts
that the district court erred in preventing him from
establishing that the DEA's subsequent search of King's
apartment yielded no evidence of illegal drugs. Eliciting
such evidence was relevant, Smith says, to undermine any
concerns about the credibility of the witness and to rebut
the prejudicial characterization of Smith and his girlfriend.
We do not find plain error.
One problem with these arguments is that Smith
never advised the district court of the reasons he now
advances on appeal for excluding the government's line of
inquiry. Federal Rule of Evidence 103 states that error may
not be grounded upon an evidentiary ruling "unless a
substantial right of the party is affected, and . . . [i]n
case the ruling is one admitting evidence, a timely objection
or motion to strike appears of record, stating the specific
ground of objection . . . ." Fed. R. Evid. 103(a)(1)
(emphasis added). Counsel had been informed in advance that
the government planned to cross-examine Ortiz concerning her
DEA connections, and while he objected, he did not argue that
the information was irrelevant nor did he claim prejudice
under Rule 403. And when the district court limited Smith's
redirect examination of Ortiz, Smith made no objection. Our
review, therefore, is only for plain error. Olano, 507 U.S.
at 733-34.
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The government contends that its cross-examination
was designed to impeach Ortiz, and not to smear Smith and
King.6 Ortiz denied that she had ever furnished information
to the DEA, the government did not implicate Smith during its
cross-examination of Ortiz, and the court instructed the jury
that counsel's questions did not constitute evidence. Even
assuming arguendo, it was error to allow the government to
cross-examine Ortiz as it did, we conclude the error caused
slight, if any, damage to Smith. The limitation of Smith's
redirect was likewise far short of plain error. The subject
matter was of border-line relevance, hence well within the
discretion of the court to control, see Fed. R. Evid. 401.
F. The Government's Closing Argument
Smith claims that the prosecution misstated the
evidence on four separate occasions in its closing argument.
These alleged misstatements, according to Smith, went to the
heart of the case, were not corrected by the district court
and, therefore, warrant the reversal of his conviction. The
challenged statements, and this court's reasons for rejecting
Smith's present claims, are set forth below.
6. The government says it sought to establish biases or
motives to lie on the part of Ortiz. To do so, the
government claimed that Ortiz and King had been in the drug
business together, that information provided by Ortiz to the
DEA contradicted her testimony at trial, and that Ortiz was
capable of duplicitousness (and, thus, of lying on the
stand).
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Smith concedes that he did not object at trial to
the challenged statements. Consequently, we review his
present claims under the plain error standard. Olano, 507
U.S. at 733-34. In so doing, we consider a number of
factors, "including the frequency and deliberateness of the
prosecutor's comments, the strength and clarity of the trial
judge's instructions, and the strength of the government's
case against the defendant." United States v. Morales-
Cartagena, 987 F.2d 849, 854 (1st Cir. 1993); see also United
States v. Tajeddini, 996 F.2d 1278, 1282 (1st Cir. 1993).
The first disputed statement, that Mark Duggan
testified that he saw Smith with a .22 or .25 caliber pistol
on the night in question, is the only characterization of
evidence that can be termed a misstatement. We do not find,
however, that the prosecutor's description strayed far enough
from Duggan's actual testimony, "a small caliber handgun," to
amount to plain error. However described, the small caliber
handgun mentioned in Duggan's testimony was consistent with
the .25 caliber casings recovered after the shooting. The
prosecutor's mistake was not so serious as to imply bad faith
or deliberate prevarication. Also, the case against Smith
was strong, and the court properly instructed the jury on the
effect of the lawyer's statements. The misstatement, such as
it was, fell well below the plain error threshold. See
Morales-Cartagena, 987 F.2d at 854-55.
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As for the three remaining challenged remarks,7 at
least two were amply supported by the record. Statement #2
rested on Veneau's testimony that the government protected
him and helped him move out of South Boston, and that he had
not gone to the police for fear of the defendants. Statement
#4 was a fair inference from the testimony of Boston Police
Lieutenant French. Statement #3 is more problematic but in
no way amounts to plain error. The government argues in its
brief that the prosecutor referred to the jury as having "sat
up there" and seen the witness's, Tetreault's, fear. If this
is what the prosecutor said, the remark was unexceptionable,
since the jury had observed Tetreault on the stand and could
determine whether or not she exhibited fear. The transcript,
however, indicates the prosecutor as actually having said
that "he sat up there" and saw fear in Tetreault's face. If
the "he" referred to Veneau, the comment was arguably
garbled, since by the time Veneau testified at the trial, he
had already retracted earlier misstatements to police that
Tetreault had been absent. But, even accepting the latter
7. Statement #2: The government stated that Walter Veneau
could not go back to South Boston after he testified.
Statement #3: The government stated that Walter Veneau
did not tell the police his girlfriend was at the scene of
the shooting because "he sat up there and saw the fear" on
her face.
Statement #4: The government stated that the police
found the shells where Walter Veneau told them the shooting
had taken place.
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version, the unobjected-to remark was harmless and fell far
short of constituting plain error.
G. The Meaning of "Ammunition"
Smith contends on appeal that the district court,
through certain unobjected-to instructions given to the jury
while the trial was in process, erroneously directed a
verdict in the government's favor on the elements of
ammunition and interstate commerce. According to Smith, the
district court wrongly told the jury that the casings which
were received into evidence were ammunition, and had traveled
in interstate commerce.8 Such instructions, according to the
defense, had the effect of directing the jury to find against
Smith on two essential elements of the offense. See United
States v. Argentine, 814 F.2d 783, 788-89 (1st Cir. 1987)
(quoting United States v. Natale, 526 F.2d 1160, 1167 (2d
Cir. 1975), cert. denied, 425 U.S. 950 (1976)). Smith, thus,
concludes that the district court committed plain error,
requiring the reversal of his conviction.
The district court made the challenged remarks in
the course of certain mid-trial comments to the jury
8. Smith challenges the following statements made by the
court in the course of remarks to the jury during the trial
relative to evidence on the cartridge casings: "Despite what
may have been raised in the opening statements to you, the
cartridge case, standing alone, is ammunition under federal
law. So the cartridge case originally was made out of state,
found its way into Massachusetts. Whether or not it was
reloaded, it still moved in interstate commerce."
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intended, among other things, to correct an earlier
misstatement by Yanovitch's counsel relative to the
definition of "ammunition." Counsel had stated that shell
casings were not ammunition, an assertion contrary to the
definition set forth in 18 U.S.C. 921(17)(A) (1996): "The
term 'ammunition' means ammunition or cartridge cases
. . . ." Before correcting counsel, the trial court
indicated to the jury that it was instructing them as to the
law, not as to the evidence. If counsel wished
clarification, he should have asked for it at the time. In
its final charge to the jury, the district court clearly
informed the jury of the government's burden to prove beyond
a reasonable doubt defendants' possession of ammunition and
of the movement of the ammunition in commerce, and gave
accurate, extensive and clear instructions on each of these
points. We do not find plain error.9
H. The Meaning of "In or Affecting Commerce"
Smith challenges the accuracy of the court's jury
instruction on the meaning of the phrase "in or affecting
commerce." As he did not object to the instruction, our
review is for plain error only. Olano, 507 U.S. at 733-34.
After considering the instruction, and the prevailing case
9. As noted previously, there was uncontested evidence that
the cartridge casings found at the scene were made in
Arkansas, permitting the inference that they had traveled
interstate.
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law, we conclude that the court did not commit error, plain
or otherwise.10
As part of its case, the government had to prove
that possession of the ammunition was "in or affecting
commerce." 18 U.S.C. 922(g)(1) (1976 & Supp. 1976). The
Supreme Court in Scarborough v. United States, 431 U.S. 563,
575 (1977), held that evidence showing that a weapon had
crossed state lines is legally sufficient to satisfy this
element of the statute. Smith, while not disputing the
above, contends that it should have been left solely to the
jury to decide whether the ammunition's crossing of state
lines could establish that possession was "in or affecting
commerce."
This argument runs counter to the principle that
the court, not the jury, is responsible for declaring the
law. Here, the court's instruction finds support in
10. The court instructed the jury as follows: "So the
government has to prove beyond a reasonable doubt that the
firearm, taking the firearm charge, and the ammunition,
taking the ammunition charge, was in commerce. That doesn't
mean that they have to prove Mr. Yanovitch or Mr. Smith
carried the items across a state line. But the government
does have to prove beyond a reasonable doubt that at some
time after the firearm or ammunition was manufactured, up
till the time when the person you're considering possessed
it, if you find that one or both of them did possess it, that
the item, the firearm, or ammunition, or both, were in
commerce, which means it went across a state line . . . ."
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Scarborough and in circuit precedents spawned by
Scarborough.11 The court properly instructed the jury on the
meaning of the phrase "in or affecting commerce."
Smith also claims that the court should have
required the jury to find a "substantial" effect on
interstate commerce, in light of the Supreme Court's recent
decision in United States v. Lopez, 115 S. Ct. 1624, 1629-30
(1995). In Lopez, the Court struck down the Gun-Free School
Zones Act, 18 U.S.C. 922(q) (Supp. 1996), which prohibited
a person from possessing a gun while in a "school zone," on
the grounds that it exceeded Congress's powers under the
Commerce Clause. Lopez, 115 S. Ct. at 1630-31. Smith
alleges that the Court's opinion in the Lopez case undermines
the proposition, stated in Scarborough and its progeny, that
Congress intended nothing more than a minimal contact with
interstate commerce. Consequently, Smith concludes that the
district court committed error when it failed to instruct the
jury that the government had the burden of proving that the
ammunition at issue substantially affected interstate
commerce.
11. United States v. Gillies, 851 F.2d 492, 494 (1st Cir.),
cert. denied, 488 U.S. 857 (1988); see also United States v.
Carter, 981 F.2d 645, 648 (2d Cir. 1992) (instruction that
"it is sufficient that the firearm allegedly possessed or
received by defendant had at some point previously travelled
across a state line" upheld in Section 922(g)(1) case), cert.
denied, 507 U.S. 1023 (1993).
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Smith's reliance on Lopez is misplaced. Unlike the
statute at issue in Lopez, Section 922(g)(1) (1976 & Supp.
1996) contains a specific jurisdictional element which
ensures, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce. Where,
as here, the jurisdictional element is present, the
government need only prove the minimal nexus to interstate
commerce identified in Scarborough. See Diaz-Martinez, 71
F.3d at 953. Smith's argument is without merit.
I. The Sufficiency of the Government's Evidence
Smith argues that his conviction rests on
insufficient evidence. In reviewing this claim, we must
determine whether, after viewing the evidence, and all
reasonable inferences drawn therefrom, in the light most
favorable to the government's case, a rational factfinder
could find, beyond a reasonable doubt, that the prosecution
has proved the essential elements of the offense. United
States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). In so
doing, this court defers to the jury as to all credibility
judgments, and need conclude only that the evidence, taken in
its entirety, supports a judgment of conviction. Id.
Because the evidence in this case was more than sufficient
under this standard, Smith's claims are without merit.
Smith argues that there was no evidence indicating
that he possessed a handgun on the evening in question, hence
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no proof that he possessed ammunition as well. Smith points
to the fact that, while Veneau and Tetreault both testified
that the man in the back seat handed an object to Yanovitch
and that the latter proceeded to shoot Viens, they did not go
so far as to state that Smith passed a firearm to Yanovitch.
However, the testimony of Veneau and Tetreault,
together with the reasonable inferences that can be drawn
therefrom and from the other evidence, is ample to establish
Smith's involvement. Veneau said that he never saw Brian
Smith with a gun, but that was because he did not know anyone
named Brian Smith. Veneau's assertion that the man in the
middle passed what Veneau believed to be a gun to Yanovitch,
when coupled with evidence that Smith was the man in the
middle, supports the conviction. Tetreault testified that
she did not recognize the object while it was being passed to
Yanovitch, but noted that she saw that it was a gun when
Yanovitch got out of the car with it. This testimony, in
conjunction with all the other evidence at hand, including
the subsequent shooting and Duggan's testimony that he had
seen Smith with a handgun earlier, was adequate to establish
Smith's guilt beyond a reasonable doubt.
J. Four-Level Increase in Smith's Guideline Sentencing
Range
On appeal, Smith challenges the factual findings
that served as the foundation for the four-level enhancement
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of his Guideline Sentencing Range ("GSR"). Since Smith's
counsel properly objected to these findings at the sentencing
hearing, this court's review is limited to clear error.
United States v. Powell, 50 F.3d 94, 102-03 (1st Cir. 1995).
Under the circumstances, "we ask only whether the court
clearly erred in finding that the government proved the
disputed fact by a preponderance of the evidence." Id. at
103. We hold that the factual findings were amply supported
on the record and that the court did not commit clear error
in assessing a four-level increase to Smith's GSR.
Smith alleges that the district court clearly erred
when it increased his GSR based upon its finding that he
transferred the firearm to Yanovitch in connection with
another felony offense. United States Sentencing Commission,
Guidelines Manual, 2K2.1(b)(5) (Nov. 1995).12 Smith claims
that the evidence presented at trial was insufficient,
especially as there was an absence of proof that Smith knew
that Yanovitch intended to use the gun to shoot Viens.
The evidence at trial was sufficient to show that
Smith and Viens became involved in a dispute about a firearm
at a Boston bar; that the two men left the bar together;
12. U.S.S.G. 2K2.1(b)(5) provides: "If the defendant
used or possessed any firearm or ammunition in connection
with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to
believe that it would be used in connection with another
felony offense, increase by 4 levels . . . ."
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that, when Smith reached inside his jacket, Viens punched
him; and that Smith was pulled into the back seat of the car,
from where he handed a gun to Yanovitch, who proceeded to
shoot Viens. From this, it was reasonable for the district
court to infer that Smith gave his handgun to Yanovitch
intending and expecting the latter to use it against Viens.13
As this was a reasonable and permissible interpretation, it
justified the four-level enhancement of Smith's GSR.
K. The Attachment of the Sentencing Hearing Transcripts to
Smith's Presentence Report
At the sentencing hearing, Smith asked the district
court to order deleted from the PSR reference to certain
state convictions. These convictions had been vacated prior
to the hearing, and, as a result, Smith no longer could be
sentenced as an armed career criminal, see 18 U.S.C.
924(e)(1) (Supp. 1996), although he could still be sentenced
as a felon-in-possession. The district court stated on the
record during the sentencing hearing that the challenged
convictions had been set aside and ordered the transcript
containing its remarks to be attached to the PSR as an
indication that these convictions were no longer valid.
13. The district court held as follows: "I rule on the
totality of the trial record . . . that the evidence is
sufficient to warrant a finding that when Mr. Smith passed
the weapon to Mr. Yanovitch, he well knew and he intended
that it be used to assault Mr. Viennes [sic]. Not any self-
defense, but in furtherance of the altercation. I find by a
fair preponderance of the evidence that that was precisely
what was in Mr. Smith's mind, and I add four levels . . . ."
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Deeming attachment of the transcript to be an adequate
corrective, the court refused to direct the probation officer
to revise the PSR itself.
Smith did not object to the court's procedure at
the time, but on appeal complains that the Bureau of Prisons
uses these PSRs to allocate the prison population among its
institutions and programs. According to Smith, the Bureau's
personnel is not likely to pay attention to the sentencing
hearing transcript. Consequently, Smith argues that he has
been unduly prejudiced by the district court's order. He
asks us to order proper corrections to be made to his PSR.
Federal Rule of Criminal Procedure 32(c)(1)
requires a sentencing court to address each relevant matter
in the PSR which is controverted by the parties.14 The court
must make either a finding or a determination that none is
necessary. Not intended as an "onerous" requirement, the
sentencing court's determinations "can be simply entered onto
a form which is then appended to the report." Advisory
Committee Notes to Fed. R. Crim. P. 32(c)(3)(D) (the
predecessor of Fed. R. Crim. P. 32(c)(1)), 1983 Amendments.
14. The relevant text of Rule 32(c)(1) is as follows: "For
each matter controverted, the court must make either a
finding on the allegation or a determination that no finding
is necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing. A
written record of these findings and determinations must be
appended to any copy of the presentence report made available
to the Bureau of Prisons." Fed. R. Crim. P. 32(c)(1).
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In United States v. Bruckman, 874 F.2d 57, 63-64
(1st Cir. 1989), this court noted that the purpose behind the
Rule's writing requirement is to protect the defendant's due
process rights and to provide the reviewing court with a
clear record of the disposition below. Smith does not here
complain that the district court mishandled or misread the
vacated convictions so as to sentence him improperly in this
case. Rather, he fears that appending the transcript, rather
than physically revising the PSR, is an insufficient way to
alert future prison authorities to the true status of the
prior convictions. Whether or not this is a realistic fear
we cannot say. Smith did not raise this concern before the
district judge, who was best situated to pass on it.
Precedent indicates that the appending of a hearing
transcript will comply with the Rule.15 If, in a particular
case, there are practical reasons to do more, we have no
doubt that the district court, if asked, would look into the
matter, with the help of the probation officer. As we say,
Smith did not raise the issue below; absent his having done
so, we can find no error cognizable on appeal. We add that
it is still not too late for Smith's concerns to be attended
15. See Bruckman, 874 F.2d at 65; see also United States v.
Santamaria, 788 F.2d 824, 829 (1st Cir. 1986) (citing United
States v. Castillo-Roman, 774 F.2d 1280, 1285 (5th Cir.
1985), for the proposition that appending the transcript of
the sentencing court's determinations satisfied the
requirements of the Rule).
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to administratively assuming they have any legitimacy,
which we cannot ascertain from the record before us by
simply appending a suitable notation to the PSR updating the
status of the prior convictions. Whether this or some other
measure is necessary we leave entirely to the appropriate
authorities.
L. Yanovitch's Sentence
Yanovitch challenges the factual findings made by
the district court as a basis for his sentence. We review
his claims for clear error. Powell, 50 F.3d at 102-03. We
are satisfied that the record below amply supports the
sentencing court's factual findings and that Yanovitch's
allegations are baseless.
Yanovitch contends that the evidence at trial was
insufficient to establish that he attempted to shoot Viens in
the head, and that he had the intent to kill him. If
anything, Yanovitch argues, the evidence at trial
demonstrated that he acted in the heat of passion and in the
absence of malice aforethought; there was no indication,
according to Yanovitch, that he had the necessary state of
mind for attempted murder. Nevertheless, the district court
found that Yanovitch's conduct conformed to the charge of
assault with intent to murder, and, based upon that finding,
sentenced him under U.S.S.G. 2A2.1. On appeal, Yanovitch
argues that a reasonable person would conclude that the
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incident in question was an aggravated assault or, at most,
an assault with an attempt to commit manslaughter, either of
which would require application of U.S.S.G. 2A2.2.16
Yanovitch's argument merits little discussion in
light of the evidence at trial which was also summarized in
his PSR, and the tape recording of Veneau's interview with
Boston Police.17 This evidence obviously supports the
sentencing court's determination that Yanovitch shot Viens
with the intent to kill him. The court did not clearly err
when it sentenced Yanovitch pursuant to U.S.S.G. 2A2.1.
Affirmed.
16. While 2A2.1 (Assault with Intent to Commit Murder;
Attempted Murder) has a base offense level of 22, 2A2.2
(Aggravated Assault) has a base offense level of 15.
17. The PSR stated, in relevant part: "Yanovitch got out of
the car, fired one round into the ground, then walked up to
Viens and shot at Viens at least twice, striking him once in
the abdomen and once in the upper thigh. Yanovitch then
pursued Viens up the street, put the gun 2 to 3 feet from
Viens' head, fired again, but missed."
Veneau stated, in pertinent part: " . . . when I
looking back I see Gerry Yanovitch 'bout three feet, two-and-
half feet behind Bobby [Viens] pointing a, something that
looks like a small calibre handgun towards Bobby's head, I
hear another one, bang. There's five shots, all together I
heard -- miss Bobby . . . ."
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