United States v. De Masi

United States Court of Appeals
For the First Circuit

No. 92-2062

UNITED STATES,
Appellee,

v.

RALPH DE MASI,
Defendant, Appellant.

No. 92-2064

UNITED STATES,
Appellee,

v.

RONALD MARTEL,
Defendant, Appellant.

No. 92-2065

UNITED STATES,
Appellee,

v.

ROBERT PAPA,
Defendant, Appellant.

No. 92-2066

UNITED STATES,
Appellee,

v.

FRANCIS BONASIA,
Defendant, Appellant.

No. 92-2142

UNITED STATES,
Appellant,

v.

FRANCIS BONASIA,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, U.S. Senior District Judge]

Before

Selya, Boudin, and Stahl,
Circuit Judges.

Seth M. Kalberg, Jr. for appellant DeMasi; Cornelius H. Kane, Jr.

for appellant Martel; Paul J. Garrity for appellant Papa; and J.

Michael McGuinness, with whom McGuinness and Parlagreco, was on brief

for appellant Bonasia.
Timothy Q. Feeley, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

October 26, 1994

STAHL, Circuit Judge. Following a seventeen-day
STAHL, Circuit Judge.

criminal trial, defendants Francis Bonasia, Ralph DeMasi,

Ronald Martel, and Robert Papa were convicted by a jury of

various charges stemming from the attempted armed robbery of

a Brink's armored truck. On appeal, DeMasi, Martel, and Papa

together, and Bonasia individually, raise a series of issues

including denial of a suppression motion and challenges to

sufficiency of the evidence and various portions of the jury

instructions. Bonasia separately assigns error to the denial

of severance motions and an evidentiary ruling. The

government cross-appeals from the district court's decision

in sentencing Bonasia to depart downward from the Sentencing

Guidelines. We affirm the district court on all issues

raised by the defendants. At the same time, we find that the

district court incorrectly interpreted the Sentencing

Guidelines in fashioning Bonasia's sentence. We therefore

vacate Bonasia's sentence and remand for resentencing.

I.

Background

Because the defendants challenge the sufficiency of

the evidence supporting their convictions, we recite the

facts in the light most favorable to the verdict. United

States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert.

denied, 114 S. Ct. 409 (1993).

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Near the end of July 1991, Federal Bureau of

Investigation ("FBI") agents learned that, sometime in late

June, DeMasi and Martel had rented a summer campsite at the

Pines Campground in Amesbury, Massachusetts. Subsequently,

during the noontime hour on the five Tuesdays preceding

Tuesday, September 10, 1991, FBI agents observed Martel at

the parking lot of the Port Plaza Shopping Center in

Newburyport, Massachusetts. Throughout that summer, a

Brink's armored truck made a scheduled stop between noon and

1:00 p.m. on Tuesdays at the Shawmut Bank in the Port Plaza

Shopping Center. Martel's visits to the Port Plaza parking

lot corresponded with the scheduled stop of the Brink's

truck. DeMasi accompanied Martel on four of these five

visits, missing only the visit on Tuesday, August 27, 1991.

Papa and defendant George Pinto1 joined Martel and DeMasi at

the parking lot during the visits on August 20, and September

3, 1991.

Bonasia was also present at the Port Plaza parking

lot on Tuesday, September 3, 1991. While at the parking lot,

he met separately with both DeMasi and Martel. A

surveillance photograph taken during his meeting with Martel

depicts Bonasia and Martel standing together looking toward

1. Pinto was tried and convicted along with the other
defendants and joined in the consolidated appeal. Pinto,
however, died on September 15, 1992, and his appeal was
subsequently dismissed.

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the Shawmut Bank. Afterwards, Bonasia remained in the

parking lot and observed the Brink's truck as it made its

regularly scheduled stop at the Shawmut Bank.

On the evening of August 26, 1991, at around 9:45

p.m., an FBI agent observed Martel in the back seat of an

automobile, registered to Bonasia's wife, stopped in front of

the Shawmut Bank in the Port Plaza Shopping Center. Driving

the automobile was an older white male who fit Bonasia's

general physical description. After the vehicle stopped,

DeMasi left the car, walked over to the bank and peered

inside one of its windows. Later that evening, the vehicle

was again observed at DeMasi and Martel's campsite.

Bonasia's own gray Buick was observed entering and exiting

the Pines Campground several times a week over the course of

the summer, including at least three different times on

August 30, 1991.

At approximately 8:15 a.m. on September 10, 1991,

DeMasi and Martel left the Pines Campground. At 9:30 a.m.,

they were observed standing next to a dark green cargo van

which was located on the far side of the Market Basket Mall

directly adjacent to the Port Plaza Shopping Center. At this

time, FBI agents identified the license plates on the van as

stolen. Shortly before noon, DeMasi and Martel met with

Bonasia in the Port Plaza parking lot. A series of

photographs taken contemporaneously shows Bonasia first

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walking away from DeMasi's automobile, then turning back

toward DeMasi, and finally looking down at his watch. That

same morning, Papa and Pinto were also observed and

photographed driving through the Port Plaza parking lot in a

separate vehicle.

After meeting with Bonasia, DeMasi and Martel

returned to the green van parked on the far side of the

Market Basket Mall, where they were joined by Papa and Pinto.

The four defendants exited their automobiles, leaving them

unlocked and with the keys in the ignitions.2 The green

van, with Papa driving, was next observed entering the Port

Plaza parking lot just prior to the time for the expected

arrival of the Brink's armored truck. Upon entering the

parking lot, Papa drove the green van away from the direct

route to the Shawmut Bank and towards where Bonasia was

parked. Bonasia had just moved his gray Buick from a more

crowded area of the parking lot to a location more easily

accessed by the green van.

Papa pulled the van adjacent to Bonasia's gray

Buick and paused. Bonasia then leaned forward in his seat

and gave Papa a "thumb's up" signal. After receiving this

signal, Papa drove the green van away from Bonasia's

automobile towards the Shawmut Bank.

2. Papa and Pinto also left the trunk of their automobile
unlocked and open. Moreover, each of the two cars had stolen
license plates affixed over their regular plates.

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Shortly thereafter, FBI agents stopped the green

van and arrested DeMasi, Martel, Papa, and Pinto. At the

time of the arrests, DeMasi was wearing brown cotton gloves,

a nylon stocking pulled down over his forehead, and a bullet-

proof vest. Pinto was wearing similar gloves, a nylon

stocking, and had a pair of handcuffs in his waistband.

Martel also wore gloves, and a third nylon stocking was found

in the back of the van next to where he had been sitting. In

the front seat next to where Papa had been sitting was a blue

ski mask and an additional set of gloves. An operating

portable scanner rested on the empty front passenger seat. A

loaded semi-automatic nine millimeter Uzi carbine was found

behind the front seat, and two loaded semi-automatic nine

millimeter pistols and a loaded six-shot revolver were found

in the rear compartment of the van.

At approximately the same time, Bonasia, who had

been walking from a pay phone towards his gray Buick, was

arrested by a Rhode Island State Trooper. At the time of his

arrest, Bonasia was approximately five to eight feet from his

automobile. Immediately after the arrest, an FBI agent

standing near Bonasia's automobile observed a pair of

binoculars on the front passenger seat inside the gray

Buick.3

3. Subsequent to Bonasia's arrest, FBI agents conducted two
warrantless searches of Bonasia's automobile. Bonasia
successfully moved prior to trial to suppress all evidence

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Defendants were tried together before a jury.

Bonasia, DeMasi, Martel, and Papa were convicted of

conspiring and attempting to commit bank robbery, in

violation of 18 U.S.C. 371 and 18 U.S.C. 2113(a), and

conspiring and attempting to affect interstate commerce by

robbery, in violation of the Hobbs Act, 18 U.S.C. 1951.

Additionally, all defendants were convicted on four counts of

using or carrying a firearm in violation of 18 U.S.C.

924(c). Following the return of the verdicts on these

charges, additional evidence was offered, and the jury

subsequently found DeMasi, Martel, and Papa guilty on three

counts of violating the felon-in-possession statute, 18

U.S.C. 922(g)(1).

II.

Discussion

A. Alleged Pre-Trial Errors

1. Suppression Ruling

Our review of the decision whether to grant or deny

a suppression motion is "plenary." United States v. Sanchez,

943 F.2d 110, 112 (1st Cir. 1991). We defer, however, to a

district court's factual findings if, on a reasonable view of

the evidence, they are not clearly erroneous. United States

v. Beltran, 917 F.2d 641, 642 (1st Cir. 1990).

obtained from these searches.

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8

DeMasi, Martel, and Papa challenge the district

court's refusal to suppress evidence seized from the green

van at the time of their arrests.4 They concede that the

FBI had probable cause to make the arrests and that, if their

arrests were lawful, the van's search and the seizure of

evidence were also lawful. Defendants contend, however, that

the arrests violated the Fourth Amendment because the FBI

effected them without a warrant. They maintain that probable

cause arose no later than early on the morning of the

arrests, when the FBI identified the green van that DeMasi

and Martel had visited as bearing stolen license plates, and

that the government should have procured an arrest warrant at

that time. Ultimately, they argue that the government's

delay and ultimate failure to obtain a warrant negates the

legality of their arrests and the subsequent search and

seizure of evidence. We disagree.

Defendants' argument rests on the proposition that

the government's allegedly "predesigned" and "improper" delay

somehow invalidated the defendants' otherwise proper arrests.

4. Bonasia also contests the failure to suppress the
evidence seized from the green van. It is, however,
axiomatic that Fourth Amendment rights are personal to the
individual. Sanchez, 943 F.2d at 112. Bonasia was not

present in the van during the arrest, nor does he own the van
or claim any possessory rights in the seized evidence.
Hence, Bonasia has no legitimate expectation of privacy on
which to base his claim. See United States v. Sepulveda, 15

F.3d 1161, 1194 (1st Cir. 1993), cert. denied, 114 S. Ct.

2714 (1994).

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9

The Supreme Court, however, has refused to attach

significance to the fact that the government had ample time

to obtain a warrant but declined to procure one. See United

States v. Watson, 423 U.S. 411, 423-24 (1976). Specifically,

the Court stated that "[t]he necessary inquiry . . . [is]

not whether there was a warrant or whether there was time to

get one, but whether there was probable cause" at the time of

the arrest. Id. at 417. Indeed, the government in Watson

conceded that it had more than sufficient time to have

obtained a warrant prior to the arrest. Id. at 414; id. at

426 (Powell, J., concurring) (as much as six days elapsed

between time probable cause arose and the arrest). Hence,

the Supreme Court has directly rejected the underpinnings of

defendants' argument.

The Constitution does not require a warrant to

effect an arrest in a public place. Id. at 423-24.

Moreover, law enforcement agents need only possess reasonable

suspicion that a criminal activity is occurring in order to

stop a moving automobile to investigate. United States v.

Kimball, 25 F.3d 1, 6 (1st Cir. 1994). Here, it is

undisputed that the FBI agents had probable cause to stop the

green van when it entered the Port Plaza Shopping Center.

The arrests of DeMasi, Martel, and Papa were effected in a

public place, the middle of the shopping center parking lot.

Accordingly, no arrest warrant was required, and whether or

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not the FBI agents could have obtained one prior to making

the arrests is irrelevant.

2. Severance Rulings

We now turn to Bonasia's challenges to the district

court's denial of his motions for severance. "Trial courts

are afforded considerable leeway in determining severance

questions." United States v. Pierro, No. 93-1313, slip op.

at 8 (1st Cir. July 27, 1994). "We reverse the decision to

deny a motion for severance only upon a showing of strong

prejudice, demonstrating a manifest abuse of discretion that

deprived the defendant of a fair trial." United States v.

Nason, 9 F.3d 155, 158 (1st Cir. 1993), cert. denied, 114 S.

Ct. 1331 (1994). Prejudice, in this context, "means more

than just a better chance of acquittal at a separate trial."

United States v. Boylan, 898 F.2d 230, 246 (1st Cir.)

(quotations omitted), cert. denied, 498 U.S. 849 (1990).

Bonasia maintains that severance was necessary to

avoid the substantial prejudice he suffered due to the

spillover effect from evidence admitted at trial against his

codefendants, the effect of codefendant DeMasi's pro se

representation, and the impact resulting when several members

of the jury saw his codefendants enter the courtroom in

handcuffs.5 We are not persuaded.

5. Bonasia perfunctorily raises several additional arguments
in support of his severance appeal, such as "antagonistic
defenses" existing between him and his codefendants, his

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Bonasia's spillover claim fails because he has not

met his burden of showing substantial prejudice. Though it

is true that substantial evidence admitted at trial dealt

with him only indirectly, this factor alone does not amount

to grounds for reversal. "It is well settled that `[e]ven

where large amounts of testimony are irrelevant to one

defendant, or where one defendant's involvement in an overall

agreement is far less than the involvement of others,' the

court of appeals must be `reluctant to second guess severance

denials.'" United States v. O'Bryant, 998 F.2d 21, 26 (1st

Cir. 1993) (quoting Boylan, 898 F.2d at 246). Moreover,

"[w]here evidence featuring one defendant is independently

admissible against a codefendant, the latter cannot

convincingly complain of an improper spillover effect." Id.

Bonasia, like his codefendants, was charged with conspiring

and attempting to rob the armored Brink's truck. Thus, even

if the government had tried Bonasia separately, nearly all of

the evidence presented here would have been admissible in a

separate trial against him to prove the object of the

inability to obtain exculpatory testimony and his inability
to sit with his counsel at trial. Bonasia failed to raise
these issues at trial in support of his motions for
severance. Moreover, on appeal, he fails to adequately
explain how he was prejudiced by them. We therefore deemed
them waived. See United States v. Lilly, 13 F.3d 15, 17-18

(1st Cir. 1994) (failure to raise arguments below results in
waiver) and United States v. Zannino, 895 F.2d 1, 17 (1st

Cir.) (perfunctorily raised arguments waived), cert. denied,

494 U.S. 1082 (1990).

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conspiracy and the attempted robbery. Therefore, Bonasia has

not met his burden of showing that he suffered strong

prejudice.6

Bonasia's complaint of prejudice resulting from

DeMasi's pro se representation is equally without merit. A

codefendant's pro se representation is not, without more,

grounds for severance; a defendant must additionally show

that strong prejudice resulted from the representation.

United States v. Tracy, 12 F.3d 1186, 1194 (2d Cir. 1993);

Person v. Miller, 854 F.2d 656, 665-66 (4th Cir. 1988), cert.

denied, 498 U.S. 1011 (1989); see also United States v.

Cross, 928 F.2d 1030, 1039-40 (9th Cir.) (no "compelling

prejudice" resulted from codefendant's pro se

representation), cert. denied, 112 S. Ct. 594 (1991), and

cert. denied, 112 S. Ct. 941 (1992). Bonasia, however,

points us to no specific prejudicial incidents that occurred

before the jury.7 Bonasia therefore cannot convincingly

6. We also note that the district court was careful to sever
the three felon-in-possession counts charged only against
Bonasia's codefendants. These issues were tried to the jury
after it had returned a verdict on all the other charges.

7. Bonasia cites two statements by DeMasi as being
inflammatory and prejudicial, but the first occurred at a
pretrial hearing and the second occurred at DeMasi's
sentencing. Bonasia also notes that DeMasi allegedly
threatened Bonasia's trial counsel over a dispute concerning
the order in which defendants would present final arguments.
The alleged threat, however, occurred outside of the
courtroom and after the close of evidence. Bonasia's counsel
brought the alleged threat to the attention of the judge, who
ordered all the defendants to present arguments in

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argue that the district court should have granted severance

on this ground.

Bonasia's final claim that he was prejudiced

because the jury viewed his codefendants enter the courtroom

in handcuffs is similarly unavailing. This incident occurred

on the eleventh day of trial, when the jury was mistakenly

brought into the courtroom before the defendants entered.

The record reveals that, at most, no more than one or two of

the jurors briefly observed a single defendant in handcuffs.

After the incident, the district judge separately questioned

each juror, inquiring whether each had either seen or heard

anything unusual, and determined that the danger of prejudice

to the defendants was insignificant. The court also

carefully cautioned each juror not to discuss the questioning

or anything he or she had noticed with the other jurors. We

believe that the district court appropriately handled the

incident and minimized any possible prejudice to the

defendants. The district court therefore did not abuse its

discretion in denying Bonasia's renewed severance motion on

this ground. Cf. United States v. Pina, 844 F.2d 1, 8 (1st

Cir. 1988) (mistrial not warranted where three jurors saw

defendant in shackles).

alphabetical order. Nevertheless, Bonasia's counsel agreed
to argue fourth with DeMasi arguing last. We cannot say that
this change in the order of final arguments deprived Bonasia
of a fair trial.

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B. Alleged Trial Errors

1. Evidentiary Ruling

Bonasia challenges the admission at trial of

testimony from an FBI agent who observed binoculars present

on the front seat of Bonasia's gray Buick following Bonasia's

arrest. Bonasia argues that the testimony was incorrectly

admitted because all evidence resulting from two warrantless

searches of his automobile (which, he argues, would include

any evidence of the binoculars) had been suppressed prior to

trial. This argument is without merit.

In general, we review a district court's decision

to admit evidence for abuse of discretion. See, e.g., United

States v. Fisher, 3 F.3d 456, 461 (1st Cir. 1993). The

suppression order excluded "all evidence obtained as a

result" of the illegal searches of Bonasia's automobile. The

order, however, did not and could not extend to evidence that

derived from an independent legal source apart from the

unlawful searches. See Murray v. United States, 487 U.S.

533, 536-41 (1988) (explaining independent source doctrine).

Thus, the question is whether the FBI agent's testimony

concerning the binoculars had an independent source apart

from the illegal searches. On this point, it is beyond doubt

that "[i]f an article is already in plain view, neither its

observation nor its seizure would involve any invasion of

privacy." Horton v. California, 496 U.S. 128, 133 (1990).

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Furthermore, "[t]here is no legitimate expectation of

privacy, shielding that portion of the interior of an

automobile which may be viewed from outside the vehicle by

either inquisitive passersby or diligent police officers."

Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion)

(citation omitted); see also United States v. Ware, 914 F.2d

997, 1000 (7th Cir. 1990); Brumfield v. Jones, 849 F.2d 152,

155 (5th Cir. 1988).

The agent who testified at trial about the

binoculars participated in neither the illegal searches of

Bonasia's automobile nor Bonasia's arrest. At the time of

the arrest, the agent was legitimately present in the parking

lot, standing several feet away from Bonasia's automobile.

At trial, the agent merely testified to observing the

binoculars which were in "plain view" on the front seat of

the vehicle. Therefore, the agent's testimony had an

independent legal source apart from the illegal searches and

was properly admitted.8

2. Sufficiency of Evidence

We now turn to the defendants' challenges to the

sufficiency of the evidence. In assessing evidentiary

sufficiency, "[o]ur task is to review the record to determine

8. Bonasia also challenges a reference by the district court
to the binoculars in the jury instructions and a similar
reference by the prosecutor in summation. Because we rule
that the testimony concerning the binoculars was properly
admitted, neither of the challenged references was improper.

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whether the evidence and reasonable inferences therefrom,

taken as a whole and in the light most favorable to the

prosecution, would allow a rational jury to determine beyond

a reasonable doubt that the defendants were guilty as

charged." United States v. Mena-Robles, 4 F.3d 1026, 1031

(1st Cir. 1993), cert. denied, 114 S. Ct 1550 (1994),

modified on other grounds sub nom., United States v. Piper,

No. 94-1197 slip op. (1st Cir. Sept. 8, 1994). In arriving

at our determination, we must credit both direct and

circumstantial evidence of guilt, but "must do so without

evaluating the relative weight of different pieces of proof

or venturing credibility judgments." United States v.

Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We need not be

satisfied that no verdict other than one of guilt could

reasonably have been reached; rather, we need only satisfy

ourselves that the record plausibly supports the verdict the

jury did return. Id.

Bonasia complains that the evidence against him is

insufficient to support his convictions for conspiracy and

attempt. He maintains the government failed to offer any

evidence that established his specific intent to join in

either the criminal conspiracy or the attempt. Moreover, he

argues that the evidence amassed against him does not support

a finding that he performed a "substantial step" towards the

completion of the attempted robbery. In essence, Bonasia

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contends that the evidence establishes only his mere presence

at the scene of the crime, and his sporadic association with

DeMasi and Martel. Again, we disagree.

To prove a charge of conspiracy, the government

must establish beyond a reasonable doubt that an agreement or

working relationship existed, that the agreement had an

unlawful purpose, and that the defendant voluntarily entered

into the agreement. See United States v. David, 940 F.2d

722, 735 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301

(1992). Moreover, the government must prove that the

defendant both intended to agree and to effectuate the

commission of the underlying offense that was the object of

the conspiracy. United States v. Piper, No. 94-1197, slip

op. at 8 (1st Cir. Sept. 8, 1994). "[T]he proof of a

defendant's conspiratorial involvement may consist of

indirect evidence, including reasonable inferences drawn from

attendant circumstances." Echeverri, 982 F.2d at 679.

To prove a charge of attempt, the government must

show beyond a reasonable doubt the defendant's intent to

commit the offense charged and that the defendant performed a

substantial step towards the completion of the offense.

United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir.

1993), cert. denied, 114 S. Ct. 731 (1994). Respecting

Bonasia's "mere presence" argument, we have noted that "`the

culpability of a defendant's presence hinges upon whether the

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circumstances fairly imply participatory involvement. In

other words, a defendant's "mere presence" argument will fail

in situations where the "mere" is lacking.'" United States

v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (quoting

Echeverri, 982 F.2d at 678), petition for cert. filed, 63

U.S.L.W. 3066 (U.S. June 6, 1994) (No. 94-93).

The government's evidence against Bonasia is

clearly sufficient to support the jury's finding of guilt

beyond a reasonable doubt on both the conspiracy and the

attempt counts. Bonasia's presence at the September 3, 1991,

surveillance and his August 26, 1991, nighttime visit to the

parking lot with DeMasi and Martel plausibly support an

inference that he participated in the planning of the

attempted robbery. This inference is strengthened by

Bonasia's frequent visits over the course of the summer to

DeMasi and Martel's campsite at the Pines Campground.

Moreover, Bonasia's activities on the day of the

arrest tend to establish his complicity. Even aside from the

much disputed "thumb's up" signal,9 Bonasia's activities on

9. Bonasia fervently maintains that we should disregard the
FBI agent's testimony concerning the alleged sighting of the
"thumb's up" signal because, under the conditions, such a
sighting was a "physiological impossibility." Bonasia's
"thumb's up" signal was observed by an FBI special agent who
was located in an undercover van in the parking lot some 60
to 65 yards away. The agent made his observation while
peering through a hole in a plastic sheet that covered the
windows of the van. At trial, both sides introduced
photographs relating to whether the observation was possible.

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September 10, 1991, go well beyond mere presence. He arrived

at the parking lot more than an hour before the scheduled

arrival of the Brink's truck and met with DeMasi and Martel.

Moreover, an FBI agent testified that, shortly before the

green van entered the Port Plaza parking lot, Bonasia, who

was pacing back and forth watching the area, tellingly gave

the van in which the agent was riding a "very close look" as

it drove up. This evidence supports an inference that

Bonasia acted as a lookout during the attempted robbery. His

participation is further corroborated by the fact that, upon

entering the parking lot, Papa drove the green van towards

Bonasia's gray Buick and pulled to a momentary stop alongside

it before heading to where the Brink's truck was to make its

scheduled stop. Significantly, prior to this detour, the

defendants in the green van temporarily had been unable to

view the area where they would encounter the Brink's truck.

This underscores their need for a lookout. In sum, there is

sufficient evidence to support a finding that Bonasia

voluntarily and intentionally joined the conspiracy, and that

he performed a substantial step towards the completion of the

robbery.

Bonasia also challenges the sufficiency of the

evidence on the related firearm convictions under 18 U.S.C

924(c). He points out that these charges were submitted to

the jury under an aiding and abetting theory, which requires

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the government to establish that the defendant knew that

weapons would be used during the crime. See Torres-

Maldonado, 14 F.3d at 103 (to sustain 924(c) conviction

under an aiding and abetting theory "accomplice `must have

known to a practical certainty that the principal would be

[using] a gun'" (quoting United States v. Powell, 929 F.2d

724, 728 (D.C. Cir. 1991)). Bonasia contends that the record

lacks any evidence to support a finding that he knew his

codefendants would be using or carrying firearms during the

attempted robbery.

As we have noted, the evidence adduced at trial

more than adequately supports a finding that Bonasia joined

in the conspiracy and participated in the attempted robbery

of the Brink's truck. This same evidence likewise supports a

finding that Bonasia knew that his four codefendants would be

using or carrying firearms during and in relation to the

attempted robbery. In particular, two different Rhode Island

State Troopers testified that Bonasia remained in the parking

lot on September 3, 1991, and observed the Brink's truck for

the entirety of its scheduled stop. From this, a rational

jury could conclude that Bonasia understood the scope of what

a robbery of an armored truck with two armed guards would

entail. It therefore could reasonably infer that Bonasia

must have known that his coconspirators would be using

weapons. As we have noted before, "[i]n the last analysis,

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criminal juries are not expected to ignore what is perfectly

obvious." Echeverri, 982 F.2d at 679; see also United States

v. Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denied,

486 U.S. 1009 (1988).10 DeMasi, Martel, and Papa's

sufficiency challenges need detain us only briefly. These

defendants essentially contend that the evidence was

insufficient to establish that they had the specific intent

to rob the armored Brink's truck. They maintain that, at

most, the government proved only that they were present in

the rear of the green van in the Port Plaza parking lot with

some unspecified illicit purpose. Defendants' argument is

completely unconvincing.

10. In a submission after oral argument, Bonasia directed
this court to United States v. Medina, 32 F.2d 40 (2d Cir.

1994), in which the Second Circuit reversed a defendant's
conviction for aiding and abetting a violation of 18 U.S.C.
924(c) due to insufficient evidence. Notwithstanding the
defendant's knowledge of expected firearm use and role in
instigating the planning of the crime, the Second Circuit
held that the evidence was insufficient to show that the
defendant "consciously and affirmatively assisted" in the
specific 924(c) violation. Id. at 45.

Here, Bonasia's circumstances are clearly different
from those in Medina. The defendant in Medina was not

present at and did not participate in the commission of the
underlying felony. Id. at 42-43. Indeed, this fact weighed

significantly in Second Circuit's analysis. Id. at 46 ("Had

Medina been present at the attempted robbery, we would
consider whether his conduct at the scene facilitated or
promoted the carrying of a gun, or whether he benefitted from
the gun's use so that he could be said to constructively
possess the gun; but he was not there." (citation omitted)).
Here, Bonasia was present at and played a significant part in
the attempted armed robbery.

-22-
22

Substantial evidence was introduced at trial which

tended to establish that at least one of these defendants

(and all of them at one time or another) was present and

carefully observed the scheduled stop of the Brink's truck on

each of the five Tuesdays preceding the foiled attempted

robbery. In addition, an FBI agent testified that on

September 3, 1991, DeMasi, Martel, and Papa waited for and

then followed a Brink's truck as it made one of its scheduled

stops prior to reaching the Port Plaza Shopping Center. From

this evidence, a rational jury could conclude that the

defendants intended to rob the Brink's armored truck. The

evidence therefore supports the convictions of DeMasi,

Martel, and Papa.

3. Jury Instructions

We now turn to defendants' challenges to various

portions of the jury instructions. Only the first of these,

which assigns as error an instruction pertaining to the

crediting of witness testimony, was raised before the

district court. The remainder were raised for the first time

on appeal. Accordingly, with the exception of the first, we

will review all of defendants' challenges only for plain

error. Fed. R. Crim. P. 30, 52(b); United States v. Whiting,

28 F.3d 1296, 1308 (1st Cir. 1994), petition for cert. filed,

U.S.L.W. (U.S. Aug. 23, 1994) (No. 94-5760).

-23-
23

Defendants initially challenge a section of the

jury charge in which the district court gave instructions on

evaluating witness testimony.11 As noted, the court

11. The defendants objected to the underlined language which
is set out in context below:

How do you deal with witnesses? Well,
most of the Government witnesses in this
case have been FBI agents. Not all of
them, but certainly the bulk of the
testimony has come in through FBI agents.
There's nothing magic about them. You
give the FBI agents the same scrutiny as
you would anybody else, and you test
their credibility by listening to them,
determining what you can from tone of
voice and expression of face. You try to
search out the interior logic of their
testimony: does it all fit together, does
the body English that goes with the
testimony give you a clue. You may
consider that. It may give you a clue as
to reliability, as to the confidence that
the witness has. It may give you a clue
as to whether the defendant is lying. In
short, you use all of the techniques that
you have developed in your lives for
determining whether somebody is giving
you reliable information.
You do this all the time. You go

and buy a major appliance or an

automobile. You listen to the salesman.

You listen to political candidates, you

try to sort out disputes in your own

household, perhaps the children or the

in-laws or the neighbors or something,

and you try to make a judgment about who

is giving you the closest approximation

of the truth. That's probably about what

we get at best. And you have to be

satisfied that all of these stories

together, all of this testimony together,

with its blemishes and defects, satisfies

you beyond a reasonable doubt of the

defendant's guilt before you can return a

finding of guilty.

-24-
24

instructed the jury that, in assessing the testimony, it

should utilize the experience and skills it had attained from

making everyday judgments and decisions. Moreover, the

district court explained that in rendering these assessments

"you try to make a judgment about who is giving the closest

approximation of truth." Defendants contend that these

instructions trivialized the fact-finding function of the

jury and had the overarching effect of reducing the

government's burden of proof. We are unpersuaded.

It is beyond dispute that the government must prove

every element of a charged offense beyond a reasonable doubt.

In re Winship, 397 U.S. 358, 364 (1970). Failure of a

verdict to be based on a finding of guilt beyond a reasonable

doubt is a structural error of constitutional magnitude and

is not subject to harmless error review. Sullivan v.

Louisiana, 113 S. Ct. 2078, 2082 (1993). It is also true,

however, that each piece of evidence and every "inference

forming a part of the mosaic making up the jury's ultimate

finding of guilt beyond a reasonable doubt need [not] itself

Now, you can take part of a
witness's story, part of a witness's
testimony and reject others. You can
take the part that seems to be reliable
and reject what is unreliable, or what
appears to be unreliable. You can also
say, well, if this man is unreliable in
one respect, I won't trust him in any
other. But it is up to you. Those
judgments are yours. That's what you're
here for.

-25-
25

be established beyond a reasonable doubt." United States v.

Corgain, 5 F.3d 5, 10 (1st Cir. 1993). Hence, the

appropriate question on review is "whether there is a

reasonable likelihood that the jury understood the

instructions to allow conviction based on proof insufficient

to meet the Winship standard." Victor v. Nebraska, 114 S.

Ct. 1239, 1243 (1994). Moreover, in reviewing jury

instructions, we measure each instruction, not in isolation,

but within the context of the charge as a whole. United

States v. Akinola, 985 F.2d 1105, 1112 (1st Cir. 1993).

The challenged instructions do not endeavor to set

forth the government's burden of proof (which the district

court correctly described); instead, they guide the jury in

evaluating and considering the credibility of witness

testimony. This is not a situation in which the district

court has attempted to define reasonable doubt by analogizing

to the standard employed by individuals in the significant

decisions of daily life. See, e.g., United States v.

Nickens, 955 F.2d 112, 119-120 (1st Cir.), cert. denied, 113

S. Ct. 108 (1992); Dunn v. Perrin, 570 F.2d 21, 24-25 (1st

Cir.), cert. denied, 437 U.S. 910 (1978). Instead, the court

was merely exhorting the jury to fulfill its function by

bringing common sense judgment to bear on the evaluation of

the different and inevitably conflicting testimony of the

-26-
26

various witnesses. This certainly does not constitute

reversible error.

Moreover, as defendants concede, the district court

accurately set forth the proper standard for the government's

burden of proof in other sections of the charge. Our review

of the instructions reveals that the district court referred

to the "beyond a reasonable doubt" standard no less than

twelve times in the nine pages of jury instructions preceding

the isolated section challenged here. This overwhelming

number of correct references negated any chance that the

contested statements were misconstrued by the jury as somehow

reducing the government's burden of proof. See United States

v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987) (no reversible

error where jury could not have been misled in light of

numerous other correct instructions about presumption of

innocence and government's burden).

Defendants, as we have noted, also raise for the

first time several additional objections to the district

court's jury instructions. Bonasia argues that the district

court erred by giving an improper "Pinkerton" instruction

concerning Bonasia's liability for the substantive crimes

committed by his coconspirators. See Pinkerton v. United

States, 328 U.S. 640 (1946) (approving instructions that

permitted jury to convict a conspirator for a coconspirator's

acts that were committed in furtherance of the conspiracy).

-27-
27

DeMasi, Martel, and Papa claim that the district court erred

by incorrectly defining the elements of attempt, and by

creating a logical progression of steps that inevitably led

the jury to a guilty verdict. In addition, all four

defendants object to various isolated statements which, they

maintain, were prejudicial, assumed various material facts as

true, and deprived them of their Sixth Amendment right to a

jury trial. Though a few of the instructions identified by

the defendants are problematic, we cannot say that,

individually or collectively, they rise to the level of plain

error.12

12. In his reply brief, defendant Bonasia makes one
additional challenge to the jury instructions. Bonasia
argues that a portion of the charge is nearly identical to
language this court held to be reversible error in United

States v. Harrigan, 586 F.2d 860 (1st Cir. 1978). In

Harrigan, the district court instructed the jury "that the

defendant's evidence has no greater function than simply to
raise a reasonable doubt in your minds, if it does. The
defendant is not required to go any further." Id. at 862.

In the present case, the district court stated that "[t]he
defendants' efforts have one purpose only and no more than
one purpose. And that is to create reasonable doubt."
Bonasia maintains that this instruction created the
impression that the defendant had the burden to prove
reasonable doubt.
Neither Bonasia nor any of his codefendants
objected to this portion of the charge at trial. Moreover,
Bonasia raised this issue only in his reply brief. As this
court has consistently held, issues raised for the first time
in appellant's reply brief are generally deemed waived.
United States v. Brennan, 994 F.2d 918, 922 n.7 (1st Cir.

1993); United States v. Michaud, 925 F.2d 37, 43 n.8 (1st

Cir. 1991); United States v. Benavente Gomez, 921 F.2d 378,

386 (1st Cir. 1990). So it is here. And, in any event, we
discern no plain error in this instruction. Unlike Harrigan,

the jury was not told that the defendant was "required" to do
anything; instead, it was only told, if somewhat clumsily,

-28-
28

Under "plain error" review, the burden falls on the

appellant to show that there is an error, that the error is

"clear" or "obvious," and that it has affected "substantial

rights." United States v. Olano, 113 S. Ct. 1770, 1776-9

(1993); Whiting, 28 F.3d at 1308. In most cases, an error

will be found to have "affect[ed] substantial rights" only if

inter alia the error was prejudicial such that it had an

impact on the outcome of the trial. Olano, 113 S. Ct. at

1778.

Even then, our review is discretionary. Id. "[A]

plain error affecting substantial rights does not, without

more," warrant the exercise of this discretion. Id. at 1779.

A reviewing court should limit the exercise of this

discretion to cases where the failure to act would result in

a "miscarriage of justice" such as "the conviction or

sentencing of an actually innocent defendant." Id. In other

words, "we review only `blockbusters: those errors so

shocking that they seriously affect the fundamental fairness

and basic integrity of the proceedings conducted below.'"

United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st Cir.

1991) (quoting United States v. Griffin, 818 F.2d 97, 100

(1st Cir.), cert. denied, 484 U.S. 844 (1987)).

We first consider Bonasia's objection to the

district court's inclusion of an allegedly improper Pinkerton

what defendants were trying to do in this case.

-29-
29

instruction.13 Bonasia argues that he was prejudiced by

the court's failure to limit liability under the Pinkerton

doctrine to only those reasonably foreseeable acts of his

coconspirators done in furtherance of the conspiracy.

Bonasia claims that the failure to include the "reasonably

foreseeable" qualification was tantamount to a directed

verdict in favor of the government on the 18 U.S.C. 924(c)

charge.

Because the government conceded error in its brief,

we will assume arguendo that the district court's formulation

of the Pinkerton charge was erroneous. The government

nevertheless maintains that the Pinkerton instruction did not

prejudice Bonasia. The government argues that the district

court's previous instruction under an aiding and abetting

theory -- that in order to convict Bonasia the jury must find

that he knew his coconspirators would use or carry firearms

13. Bonasia objects to the following portion of the charge:

I should also point out another
principle of law which has to do with Dr.
Bonasia's liability. If you find that he
was a member of the conspiracy, then
under the holding of the case called
Pinkerton versus the United States, he is
liable for all of the acts taken by the
co-conspirators during the time - or
starting with the time that he became a
member of the conspiracy. So a member of
a conspiracy is liable for all of the
acts done in furtherance of the
conspiracy by the other conspirators.
And that has to do with this gun charge.

-30-
30

during the attempted robbery -- alleviated any possible harm.

The inclusion of a correct instruction directly contradicting

an erroneous one, however, will not necessarily rectify the

error because a reviewing court cannot determine with

certainty which of the two irreconcilable instructions the

jury followed. See Francis v. Franklin, 471 U.S. 307, 322

(1985); Hill v. Maloney, 927 F.2d 646, 651 (1st Cir. 1990).

Accordingly, because we have no way of determining which

instruction the jury applied, we must instead ask whether we

can affirm the conviction based on the erroneous instruction.

Essentially, Bonasia claims that the district court

omitted an element in its Pinkerton instruction, and that the

omission, a fortiori, precluded the jury from making the

necessary factual finding to support his conviction. What

the law demands in order to show that a district court's

omission or misdescription of an element did not affect a

defendant's "substantial rights" is not entirely clear. See

Whiting, 28 F.3d at 1309. Nevertheless, even under the most

rigorous harmless error standard suggested, an error will be

declared harmless in those rare cases where no rational jury

could have found what it actually did find and not also find

the omitted or misdescribed element. Carella v. California,

491 U.S. 263, 270-71 (1989) (Scalia, J., concurring in

judgment). This is such a case.

-31-
31

First, even under the contested instruction, the

jury was required to find that Bonasia conspired with the

other defendants to rob the armored truck. As we have stated

above, the evidence amply supports the jury's verdict of

guilt on this issue. Next, we have noted the strong nexus

between the use or carrying of firearms and the successful

completion of the robbery of an armored truck. See supra at

20-21. This is not a case where the government sought to

hold a defendant liable for the substantive crimes of his

coconspirators that were not an integral part of the direct

object of the conspiracy. Rather, the use of firearms during

and in relation to the attempted robbery of the Brink's truck

was part and parcel to the object of the conspiracy itself.

Therefore, we find that no rational jury could have found

that Bonasia conspired to rob the Brink's truck in the Port

Plaza Shopping Center on September 10, 1991, without also

finding that the use of firearms in that robbery would be

reasonably foreseeable.14

14. During oral argument, Bonasia's counsel belatedly argued
that the legal standard set forth by the district court's
aiding and abetting instruction was inadequate in light of
United States v. Torres-Maldonado, 14 F.3d 95 (1st Cir.

1994), petition for cert. filed, 63 U.S.L.W. 3066 (U.S. June

6, 1994) (No. 94-93). In Torres-Maldonado, we noted that,

with regard to 18 U.S.C. 924(c) convictions under an aiding
and abetting theory, "[i]t is well settled . . . that an
accomplice `must have known to a practical certainty that the
principal would be [using] a gun.'" Torres-Maldonado, 14

F.3d at 103 (quoting United States v. Powell, 929 F.2d 724,

728 (D.C. Cir. 1991)). Here, the district court specifically
instructed:

-32-
32

DeMasi, Martel, and Papa also contend that the

district court incorrectly instructed the jury on the

elements of attempt. The district court did not give the

"substantial step" instruction which has been uniformly

adopted by the federal courts, see United States v. Rivera-

Sola, 713 F.2d 866, 869 (1st Cir. 1983), but instead stated:

One thing more is required beyond
intent. And this is a fussy point. Mere
preparation is not enough. There must be
some act taken. You must be satisfied
that the defendants or the defendant whom
you are considering set himself on a path
of action which, but for the intervention
of the FBI, would in the ordinary course
have led to the commission of the crime.

You have to be satisfied in order to hold
Dr. Bonasia liable that he had intended
to participate and that he had an
expectation - you must find beyond a
reasonable doubt that he had an
expectation that firearms would be used
in carrying out the crimes, that he
should have, that he would in the
ordinary course have known that firearms
were to be used. You don't have to be
satisfied that he saw them, but you have
to be satisfied that when, if he did
undertake to be a part of this plan, that
he understood that part of the plan was
going to involve the use of firearms,
having in mind that the Government's
position is that the plan was to hold up
the armored car and take the banks' money
out of it.

Bonasia waived this issue by failing to raise it
prior to oral argument. See Sheinkopf v. Stone, 927 F.2d

1259, 1263 (1st Cir. 1991) (issues raised only at oral
argument are waived). In any event, we are not convinced
that the district court's instruction was incorrect.

-33-
33

At oral argument, counsel for the defendants

conceded that the instruction that the defendant must "set

himself on a path of action which, but for the intervention

of the FBI, would in the ordinary course have led to he

commission of the crime" actually set forth a narrower

standard than provided by a "substantial step" instruction.

Nonetheless, defendants' counsel maintained that the

preceding sentence ("There must be some act taken.")

permitted the jury to find the defendants guilty on a

standard substantially less than that called for in a

substantial step instruction. Defendants' argument is

baseless.

When the district court's instruction is read in

context, as set forth above, it is fully apparent that the

challenged statement was qualified by the subsequent "path of

action" language. Plainly, the jury was instructed that not

just any act taken but only those acts that would have set

the defendants on the "path of action" inevitably leading to

the commission of the crime would be sufficient to establish

the charge of attempt. Because defendants concede that the

"path of action" language established a narrower standard

than that required by law, they were not harmed by the

district court's variance from the usual instruction.

DeMasi, Martel, and Papa also contend that the

district court led the jury through a progression of logical

-34-
34

steps to the inevitable result of a guilty verdict.

Primarily, defendants assert that by juxtaposing a scenario

which the district court suggested would not constitute an

attempt against the facts of the case, the district court

strongly implied that an attempt had occurred.15

Defendants maintain further that the district court continued

the progression by stating later that "it's hard to imagine

an attempt being accomplished without there having been a

conspiracy, without there being an agreement." Finally,

defendants complain that the district court compounded the

error when it opined that "[f]our guys end up in a truck;

15. The contested section of the charge is as follows:

Now, as I say, mere preparation is not
enough. This evidence of surveilling
would not have been enough. I would
suppose that, let's say on September 10th
they got opposite the McDonald's and they
said, ["]gee, its hot in this truck and
all these things I'm wearing are very
uncomfortable and sticky. Let's quit the
whole thing and go into McDonald's and
get a milk shake.["] At that point, the
progress would have stopped. And I
suggest to you it probably would not have
been close enough to be an attempt. It
was not stopped by the FBI if they
stopped themselves. But then you can
consider from all of the evidence you
have heard about the passage of the
truck, where the Brink[']s truck, in the
ordinary course, would have been, whether
they had set themselves on a path of
action which, but for the intervention of
the FBI, would in the ordinary course
have led to the commission of the crime.

-35-
35

common sense would tell you that there had to be some prior

agreement to be there."

Once again, because defendants made no

contemporaneous objection to this portion of the jury charge,

we engage only in a plain error review, and once again, we

find none. Defendants rely on United States v. Spock, 416

F.2d 165, 180-83 (1st Cir. 1969), where we held that

instructions that present the jury with a "logical

progression" are forbidden. What was particularly offensive

in Spock, however, was the submission of a special verdict to

the jury in a criminal trial. We initially note that no

special verdict was used here. Moreover, because they do not

purport to instruct the jury on the intent element of

attempt, we do not believe that the challenged instructions

led the jury to the inevitable conclusion that an attempt had

occurred. Indeed, in the preceding paragraph of

instructions, the district court carefully instructed the

jury on the element of intent, which was the most contested

issue at trial, stating that: "Attempt is a different type

of offense. For an attempt there has to be the intent to do

the illegal act. . . . In the attempt situation, you have to

find intent. . . . And again, you have to be satisfied

beyond a reasonable doubt." Finally, the court ended the

paragraph that included the challenged illustration with the

-36-
36

reminder, "All right. So there are two elements of attempt."

(Emphasis added.)

In sum, we are not persuaded that the challenged

instruction created a logical progression that inevitably led

the jury to a guilty verdict.16

Finally, all four defendants challenge various

isolated statements which they contend were prejudicial,

assumed controverted material facts as true and deprived the

defendants of their Sixth Amendment right to trial by

jury.17 Though it might have been preferable if the

16. We also rule that neither of two additional statements
that DeMasi, Martel, and Papa contend buttress their logical
progression argument constitute plain error. Even if we
assume that the statements prejudiced the defendants to some
degree, we note that the evidence with respect to DeMasi,
Martel, and Papa was overwhelming. There is no chance that
innocent defendants were convicted as a result of the
challenged statements. Accordingly, no miscarriage of
justice occurred.

17. First, DeMasi, Martel, and Papa contest the district
court's following comment on the evidence: "But you do have
some things about which there are no mistakes, the most
significant being that four of these defendants were found in
the truck with guns." Bonasia makes a similar complaint
about the reference to "robbing from a bank, and you had
evidence about that." DeMasi, Martel, and Papa also object
to the following statement made by the court while
elaborating on the action element of the crime of attempt:
"Now as I say, mere preparation is not enough. This evidence

of surveilling would not have been enough." They further

find offensive the court's reference to "this attempted
robbery" which it made while instructing on the 18 U.S.C.
924(c) firearm charges. In addition, DeMasi, Martel, and
Papa challenge a comment the court made while explaining the
aiding and abetting theory on which Bonasia was charged: "He
himself did not -- was not in the truck. He did not make the

attempt. But he is charged with being an aider and abettor."

Lastly, Bonasia challenges the comment: "Four guys end up in

-37-
37

statements had not been made, we cannot say that any of them

so infected the entire charge to the jury as to undermine the

fairness of the trial.

In analyzing the prejudicial effect of the

challenged statements, we note that the district court

cautiously admonished the jury that "when I talk about the

evidence, it's my memory only. It's your memory that

governs." The challenged statements, though problematic, are

isolated snippets culled from over thirty pages of generally

cautious, careful, and correct instructions. At most, the

statements were inadvertent slips of the tongue with limited

prejudicial force. See United States v. Lebron-Gonzalez, 816

F.2d 823, 830 (1st Cir.) (no plain error because judge did

not supplant jury as fact finder as a result of inadvertent

slip of tongue in jury charge), cert. denied, 484 U.S. 843,

and cert. denied 484 U.S. 857 (1987).

Moreover, as we have noted, the evidence against

DeMasi, Martel and Papa was overwhelming. We further note

that, with respect to Bonasia, the evidence was likewise more

than sufficient. We have no fear that the challenged

statements caused the conviction of innocent defendants.

After carefully reviewing the record, we are confident that

no miscarriage of justice occurred.

a truck, common sense would tell you that there had to be
some prior agreement to be there."

-38-
38

4. Other Matters

Bonasia makes two final arguments. First, Bonasia

contends that in rebuttal the prosecution mischaracterized

what certain FBI surveillance logs stated with respect to

him. Nonetheless, Bonasia failed to object to this

characterization at trial. "In the absence of a

contemporaneous objection, we review allegations of

prosecutorial misconduct for plain error, and will overturn a

jury verdict only if the government's closing argument so

poisoned the well that it is likely that the verdict was

affected." United States v. Tuesta-Toro, No. 93-2182, slip

op. at 12 (July 25, 1994) (internal quotations omitted). We

are confident that there is no likelihood that the isolated

statement affected the outcome of the trial.

Finally, Bonasia maintains that, if not

individually, the cumulative effect of the various complaints

he raises deprived him of a fair trial. Because we have

found that none of Bonasia's individual complaints resulted

in substantial prejudice and that most are completely without

merit, we reject the final contention that his conviction was

tainted by cumulative error. See id. (rejecting cumulative

error argument); see also United States v. Barnett, 989 F.2d

546, 560 (1st Cir.) ("The Constitution entitles a criminal

defendant to a fair trial, not a perfect one." (quotations

-39-
39

omitted)), cert. denied, 114 S. Ct. 148, and cert. denied,

114 S. Ct. 149 (1993).

C. Alleged Post-Trial Errors

On cross-appeal, the government raises two

objections to the sentencing of Bonasia by the district

court. The government challenges both the role-in-the-

offense reduction awarded Bonasia and the downward departure

of twenty-nine months granted him because of his record of

charitable work and community service. We discuss each in

turn.18

A sentencing court's decision to award a role-in-

the-offense reduction "is heavily dependent on the facts of

the particular case," U.S.S.G. 3B1.2, comment. (backg'd.).

Accordingly, we review these fact-bound determinations only

for clear error. United States v. Ocasio, 914 F.2d 330, 333

(1st Cir. 1990). In reviewing decisions to depart from the

Sentencing Guidelines, our review is broader. In a three-

18. DeMasi, Martel, and Papa also appeal the calculation of
their sentences, contending that the district court erred in
finding the value of the intended loss for sentencing
purposes. The district court's determination was a factual
finding which we review only for clear error. 18 U.S.C.
3742(e). The district court found the value of the intended
loss to be $400,000, which was the lowest of three
alternatives presented in the Presentence Report. Defendants
argue that a fourth scenario existed where the intended loss
would have been only $24,000. After reviewing the record,
however, we cannot say the district court's finding was clear
error. See United States v. Morillo, 8 F.3d 864, 871 (1st

Cir. 1993) ("Where . . . evidence fully supports more than
one inference, a sentencing court's choice from among
plausible alternatives cannot be clearly erroneous.").

-40-
40

step analysis, we examine "(1) whether the reasons the court

gave for departing are of the sort that might permit a

departure in an appropriate case; (2) whether the record

supports a finding of facts demonstrating the existence of

such reasons; and (3) whether, given the reasons, the degree

of departure is reasonable." United States v. Mendez-Colon,

15 F.3d 188, 189 (1st Cir. 1994). With respect to the first

prong of the analysis, we generally review a district court's

determination that a case is unusual and therefore worthy of

departure "with full awareness of, and respect for, the

trier's superior feel for the case." United States v.

Rivera, 994 F.2d 942, 952 (1st Cir. 1993) (internal

quotations omitted); see also United States v. Pelkey, 29

F.3d 11, 14 (1st Cir. 1994). In conducting this inquiry,

however, we do not owe deference to the district court when

the issue turns on purely legal questions of guideline

interpretation or whether the correct legal standard was

applied. See Rivera, 994 F.2d at 950-52.

Turning to the government's first argument, we note

that the district court determined that Bonasia's

participation in the attempted robbery fell between a minor

and a minimal role, thus warranting a three-level reduction

in his base offense level. See U.S.S.G. 3B1.2 (granting

reductions in base offense level to less culpable

participants in the criminal activity). The government

-41-
41

maintains, however, that the district court impermissibly

based this determination on the fact that Bonasia's role as a

lookout was less reprehensible than the roles of his

codefendants and not because his conduct evinced less

culpability. We do not find the district court's

determination to be clearly erroneous.

A defendant can receive a role-in-the-offense

reduction by fulfilling two requirements. First, the

defendant must convince the sentencing court that the

defendant was less culpable than most of the participants in

the criminal activity. See U.S.S.G. 3B1.2, comment. (n.1-

3); United States v. Gregorio, 956 F.2d 341, 344 (1st Cir.

1992). Second, the sentencing court must also be persuaded

to find that the defendant was less culpable than the

"average person" who commits the same offense. Gregorio, 956

F.2d at 344; cf. U.S.S.G. 3B1.2, comment. (backg'd). Here

the record reasonably supports the district court's decision

to grant a reduction. Specifically, the district court

plausibly inferred from the totality of the evidence

(including, for example, the fact that Bonasia attended only

one of the Tuesday surveillance meetings) not only that

Bonasia played a limited part in the planning of this

particular offense, but also that, within the universe of

individuals convicted of conspiring and attempting to rob

banks with the aid of firearms, Bonasia was less involved

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(and, hence, less culpable) than most. We believe,

therefore, that the district court's determination is not

clear error.

The government's next contention is that the

district court erred in making a downward departure of

twenty-nine months in the calculation of Bonasia's sentence.

The government complains that in deciding to depart because

of Bonasia's history of charitable work and community

service, the court improperly compared Bonasia to "the

typical bank robber" and not to other defendants with

comparable records of good works. We agree with the

government on this issue.

Before a sentencing court may depart in a specific

case, it must ask:

1) What features of this case,
potentially, take it outside the
Guidelines' "heartland" and make of it a
special, or unusual, case?
2) Has the [Sentencing] Commission
forbidden departures based on those
features?
3) If not, has the [Sentencing]
Commission encouraged departures based on
those features?
4) If not, has the [Sentencing]
Commission discouraged departures based
on those features?

Rivera, 994 F.2d at 949. A court's subsequent analysis

varies depending on the category in which the feature

justifying departure falls.

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If the feature or reason for departure falls into

the discouraged category, the mere presence of the feature

(no matter how unusual that mere presence might seem) will

not by itself take the case outside the Guidelines'

"heartland." Id. at 948. This is true because the

philosophy underlying the Guidelines dictates that whether or

not these features are present in a case is "not ordinarily

relevant" in determining a defendant's sentence. Id. A

discouraged-feature departure is warranted only if the

"nature and magnitude" of the feature's presence is unusual

or special. Id. To make this determination, a court must

ask "whether the case differs from the ordinary case in which

those [discouraged] features are present." Id. at 949; see

also United States v. Jackson, 30 F.3d 199, 202 (1st Cir.

1994); United States v. Sclamo, 997 F.2d 970, 973 (1st Cir.

1993). Moreover, before a court may lawfully decide to

depart, "it must explain how the case (compared to other

cases where the [discouraged] reason is present) is special."

Rivera, 994 F.2d at 951; see also Jackson, 30 F.3d at 202;

Sclamo, 997 F. 2d at 973.

Whether or not departure for a certain feature is

discouraged turns, of course, on a reading of the Guidelines.

Specifically, the Sentencing Guidelines provide that "civic,

charitable, or public service, . . . and similar prior good

works are not ordinarily relevant in determining whether a

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sentence should be outside the applicable guideline range."

U.S.S.G. 5H1.11, p.s.19 Therefore, a defendant's record

of charitable work and community service falls into the

discouraged-feature category of justifications for departure.

See Rivera, 994 F.2d at 948.

In the present case, the district court chose to

depart from the Guidelines because Bonasia's charitable work

and community service stood apart from what one would expect

of "the typical bank robber." The court, however, did not

compare Bonasia's history of charitable and community service

to the histories of defendants from other cases who similarly

19. The fact that 5H1.11 was not promulgated until
November 1, 1991, after the offense conduct but before the
sentencing in this case, does not make it irrelevant to the
present issue. The district court must use, subject to ex

post facto concerns, the Guidelines that are in effect on the

date of sentencing. 18 U.S.C. 3553(a)(4). Moreover, 28
U.S.C. 994(e) reveals Congress's intention that
consideration of factors such as "employment record, family
ties and responsibilities, and community ties" are generally

inappropriate in sentencing decisions. Hence, the enactment
of 5H1.11 merely clarified the Guidelines and did not mark
a substantive change. Cf. Isabel v. United States, 980 F.2d

60, 62-63 (1st Cir. 1992) (clarifications of the Guidelines
may be applied retroactively, substantive changes may not);
but see United States v. O'Brien, 18 F.3d 301, 302 (5th Cir.

1994) (eschewing reliance on 5H1.11 due to ex post facto

concerns, nonetheless vacating departure because defendant's
charitable work and community service were products of
defendant's professional record and professional skills,
which are discouraged factors under 5H1.2 (vocational
skills) and 5H1.5 (employment record)), petition for cert.

filed, 63 U.S.L.W. 3092 (U.S. July 18, 1994) (No. 94-159).

In any event, Bonasia did not challenge the use of 5H1.11
in the court below and, therefore, has waived any challenge
to its applicability in his case.

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had commendable community service records. The court stated

that:

If this was a securities fraud case or
bank fraud case, probably the downward
departure would not be appropriate.
Because presumably people of the sort
that Dr. Bonasia is [i.e., individuals
who have a past record of charitable work
and community service] are likely to
engage in those activities and be within
the contemplation of the Sentencing
Commission.

In so stating, the court at least implied that it

did not consider Bonasia's good works to be unusual or

exceptional if compared to other defendants with past records

of commendable service. Moreover, the court erred by

restricting the scope of its comparison to only bank robbery

cases. A court should survey those cases where the

discouraged factor is present, without limiting its inquiry

to cases involving the same offense, and only then ask

whether the defendant's record stands out from the crowd.

See Rivera, 994 F.2d at 953-54 (suggesting departure for

discouraged factor might be warranted after comparing case to

other cases involving the factor without regard to the

underlying crime); Jackson, 30 F.3d at 202-03 (reversing

decision to depart based on discouraged factor [age] after

comparing facts of case to other cases involving age

irrespective of underlying crime); but cf. United States v.

Haversat, 22 F.3d 790, 795-96 (8th Cir. 1994) (reversing

departure because defendant's charitable and volunteer

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46

activities were not atypical for a defendant in an antitrust

price-fixing case).

In sum, the district court erred when it declined

to compare Bonasia's record of charitable work and community

service to other cases where defendants similarly had records

of past community service. We therefore must remand for

reconsideration of this issue under the proper legal

standard.20

III.

Conclusion

For the reasons stated above, we affirm the

district court on all issues raised by the defendants. We,

however, vacate Bonasia's sentence and remand for

resentencing.

20. We do not offer any opinion on whether Bonasia's record
of charitable work and community service warrants departure
given the proper comparison. We leave this determination to
the discretion of the district court.

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