United States v. Hansen

United States Court of Appeals
For the First Circuit

Nos. 03-1331, 05-1414

UNITED STATES OF AMERICA,

Appellee,

v.

PAUL JAMES HANSEN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,
and Smith,* District Judge.

Rosemary Curran Scapicchio for appellant.
Vijay Shanker, Attorney, Appellate Section, Criminal Division,
United States Department of Justice, with whom Michael J. Sullivan,
United States Attorney, and John T. McNeil, Assistant United States
Attorney, were on brief, for appellee.

January 13, 2006

*
Of the District of Rhode Island, sitting by designation.
 SMITH, District Judge. Paul James Hansen was convicted

after a jury trial in the United States District Court for the

District of Massachusetts for his role in stealing a minivan and

his responsibility for the armed robbery and killing that followed.

He now appeals both his conviction and sentence, bringing no less

than eleven claims of error. After careful review, we affirm.

I. BACKGROUND

We begin with an overview of the facts of this case, in

the light most favorable to the Government as the prevailing party.

The unfortunate friendship of Hansen and Brendan Brennan

(“Brennan”) spawned from their childhood association with the Boys’

Club in Charlestown, Massachusetts, when the two were about twelve

years old. During their teen years, they became friendly with an

older man from the neighborhood, Scott Sheehan (“Sheehan”), who

made money by robbing banks. Sheehan instructed his two young

apprentices about various aspects of the criminal trade, including

the finer points of stealing cars. Under Sheehan’s tutelage, the

young men learned, for example, that to prevent police detection

when stealing vehicles that were to be used in robberies, they

should wear certain clothes such as nylon pants, long-sleeved

shirts, hats, and gloves.

The pair wasted no time putting their newly acquired

skills to use – between June, 1994 and the summer of 1996, Brennan

was involved in stealing approximately 100 cars, with Hansen

-2-
participating in roughly 65-70 of these thefts.1 Brennan’s budding

criminal career hit bumps in the road, however, when he was

arrested and convicted of four different auto thefts in 1995 and

1996.

While Brennan was incarcerated for one of these auto

thefts, Hansen continued to mingle with the wrong crowd, and

eventually learned of an upcoming criminal opportunity from a

Charlestown acquaintance named John Fidler (“Fidler”). On July 25,

1996, Hansen met up with Brennan, who had just been released from

jail, and told him that Fidler and two other individuals from

Charlestown, Dennis Bird (“Bird”) and Billy McKillop (“McKillop”),

were planning to rob an armored truck and wanted Hansen to help out

by stealing a minivan. (A minivan was the vehicle of choice for

such a venture because the sliding doors and removable seats

conceal the robbers and allow for easy exit during the heat of a

robbery.) According to Brennan, Fidler and his crew were

apparently in the process of replacing another Charlestown group

that robbed armored trucks while that group was incarcerated for a

robbery in Hudson, New Hampshire, which had resulted in the death

of two guards.

The next day, Hansen, Fidler, Bird, and McKillop

unsuccessfully tried to pilfer a minivan. Having had difficulty

1
The stolen vehicles were primarily used for joy-riding,
stripping and selling parts, or to help individuals commit
insurance fraud.

-3-
stealing these types of vehicles in the past, Hansen asked the more

adroit Brennan to lend a hand, with the understanding that both

Hansen and Brennan would be compensated for the theft. Brennan

understood that the minivan to be stolen was to be used in an

armored truck robbery, firearms would be used during the robbery,

and he and Hansen would earn more money if the robbery was

successful.

On the evening of July 27, 1996, Hansen and Brennan

donned nylon pants, long-sleeved shirts, and gloves and trolled the

streets of Charlestown for a suitable vehicle. Before long, the

pair noticed an attractive white minivan with tinted windows.

While Hansen kept watch, Brennan broke into the vehicle and started

the engine. After stashing the stolen minivan in Somerville,

Massachusetts, Hansen and Brennan showed Fidler and Bird their

quarry.

Four days later, on July 31, 1996, a Dunbar armored truck

driven by Michael Day (“Day”) and Edward Kubera (“Kubera”) parked

at the Twin City Plaza in Somerville to deliver currency to a Star

Market. Kubera unloaded boxes of coins while Day remained in the

truck and watched for suspicious activity. While they were

working, a white minivan approached the armored truck with tires

squealing. An individual dressed in a ski mask and gloves exited

the minivan, pointed a handgun at Day’s head, and instructed him to

lie on the floor of the truck. At the same time, another masked

-4-
man wearing gloves and dark clothes approached the armored truck

with an assault rifle and brutally shot Kubera in the chest. The

second robber climbed over Day to enter the armored truck,

collected approximately $3,725, and took Day’s firearm. The armed

robbers escaped as quickly as they had arrived, with the entire

robbery lasting only a few minutes.2 An hour later, Kubera died.

The resulting investigation produced statements by

Brennan explaining Hansen’s role in the robbery,3 as well as a

conversation recorded by Brennan’s father, Stephen Brennan, in

which Hansen admitted that Fidler had asked him to steal a vehicle.

Hansen was indicted on June 14, 2001 (nearly five years after the

heist), on charges that he (1) aided and abetted robbery affecting

commerce, in violation of 18 U.S.C. §§ 2 and 1951(a); (2) conspired

to affect commerce by means of robbery, in violation of 18 U.S.C.

§ 1951(a); (3) used a firearm during a crime of violence and

thereby caused murder, in violation of 18 U.S.C. §§ 2, 924(c), and

924(j); and (4) made a false material declaration before a grand

2
Police found a white minivan near the Twin City Plaza with
damage to the door locks and steering column. It belonged to a
Boston furniture store and its rear seats had been removed to
facilitate moving furniture.
3
Authorities had recorded Brennan talking about his role in
the theft of the minivan and the robbery of the armored truck and
arrested him on August 9, 1996. A jury convicted Brennan of aiding
and abetting an armored car robbery, conspiring to rob an armored
car, and using a firearm during a crime of violence and thereby
causing a death. After being sentenced to a 320-month prison term,
Brennan agreed to cooperate with authorities and implicated Hansen.

-5-
jury, in violation of 18 U.S.C. § 1623. At trial, the Government’s

case-in-chief was primarily based upon Brennan’s testimony, which

largely consisted of the factual account set forth above. The jury

found Hansen guilty on all counts.

Hansen was sentenced on October 9, 2002. At the

sentencing hearing and in a subsequently filed Memorandum dated

February 14, 2003, the district court explained its findings. The

court grouped Counts 1, 2, and 4 together and determined a base

offense level of 43 using the first degree murder guideline. See

U.S.S.G. § 2A1.1.4 The court then departed downward to an offense

level of 33 based upon Hansen’s state of mind. See U.S.S.G. §

2A1.1 cmt. n.1 (“The extent of the departure should be based upon

the defendant’s state of mind (e.g., recklessness or negligence),

the degree of risk inherent in the conduct, and the nature of the

underlying offense conduct.”). A two-level enhancement for

obstruction of justice was added because Hansen testified falsely

before the grand jury, resulting in a total offense level of 35.

See U.S.S.G. § 3D1.2(c). Because Hansen had a criminal history

category of VI, the district court calculated Hansen’s guideline

sentencing range to be 292 to 365 months. The court sentenced

Hansen to a 352-month term of imprisonment (292 months on counts 1,

2, and 4 — the grouped counts — and a consecutive term of 60 months

4
Guideline citations are to the 2001 Guidelines Manual, which
was the version that applied at Hansen’s sentencing.

-6-
on count 3). Five years of supervised release and a restitution

payment of $3,775 were also imposed. These appeals followed.5

II. DISCUSSION

Hansen appeals both his conviction and sentence, raising

no less than eleven points of error. We address each challenge in

turn, taking the sentencing issue first.

A. Booker Sentencing Issue

Hansen’s first and main line of attack is the fact that

the district court sentenced him under the prior mandatory

guideline regime. See United States v. Booker, 125 S. Ct. 738

(2005). Despite his claim to the contrary, however, Hansen did not

argue to the district court that the guidelines were

unconstitutional or that his sentence violated Apprendi v. New

Jersey, 530 U.S. 466 (2000); therefore, his Booker claim is not

preserved and thus we review for plain error. See United States v.

Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005). Under plain error

review, Hansen must show “(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant’s

substantial rights, but also (4) seriously impaired the fairness,

5
Hansen filed a timely notice of appeal on March 3, 2003
which was docketed in this court as No. 03-1331. Thereafter,
Hansen filed a motion for new trial pursuant to Fed. R. Crim. P.
33, which the district court denied on January 25, 2005. Hansen
then filed another notice of appeal on March 7, 2005, which was
docketed in this court as No. 05-1414 and consolidated with No. 03-
1331.

-7-
integrity, or public reputation of judicial proceedings.” United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

Hansen is able to meet the first two elements because he

was sentenced under a mandatory guideline regime. See

Antonakopoulos, 399 F.3d at 77. The question is whether he is able

to show a reasonable probability “that the sentencing court, freed

of the shackles forged by mandatory guidelines, would have

fashioned a more favorable sentence.” United States v. Guzman, 419

F.3d 27, 32 (1st Cir. 2005). While we have said that we are not

“overly demanding as to proof of probability,” United States v.

Heldeman, 402 F.3d 220, 224 (1st Cir. 2005), the defendant “must

point to specific indicia” that reasonable probability exists.

United States v. Sanchez-Berrios, 424 F.3d 65, 80 (1st Cir. 2005).

To support his claim that it is reasonably probable that

sentencing under a non-mandatory system would have yielded a

different result, Hansen points to the following statement in the

district judge’s February 14, 2003 sentencing memorandum:

The defendant was 19. The people who enlisted
him in stealing the van were at least ten
years older, with a brutal reputation in
Charlestown. While the law holds Hansen
responsible for the foreseeable consequence of
his acts, it is clear that his relationship to
the armored car robbery that resulted in the
tragic murder of Edward Kubera was tenuous.
He had, at most, only the most general idea of
the plans of Fidler and Bird. He did not know
when the robbery would take place, where, or
of whom. While Brennan suggests that Hansen
knew that guns would be involved - semi-
automatic guns at that - Hansen had no control

-8-
 over how they would be brandished, or indeed,
whether they would be used at all.

United States v. Hansen, 256 F. Supp. 2d 65, 72 (D. Mass. 2003).

These comments do suggest that the district judge was sympathetic

to Hansen’s situation in light of the jury’s guilty verdict on

Count 3, which held Hansen accountable for the shooting as a

“foreseeable consequence of the use of a firearm in the course of

the conspiracy.” See Pinkerton v. United States, 328 U.S. 640, 648

(1946). Scrutinized in the context of the entire memorandum,

however, the court’s statements do little more than explain why it

chose to depart downward to the second degree murder guideline

(U.S.S.G. § 2A1.2 (base offense level of 33)) instead of using the

first degree murder guideline (U.S.S.G. § 2A1.1 (base offense level

of 43)). Nothing in the judge’s comments imply that she would have

imposed a different sentence had she been operating under an

advisory guideline regime. In fact, a review of the entire record

indicates just the opposite. The district court explained:

In this area, the guidelines permit me to make
a more nuanced judgment as to what kind of
sentence Hansen deserves than the jury did.
The jury may have found the killing
“foreseeable” but I cannot conclude that it
was “intentional.” If there ever were a case
in which the downward departure to a second
degree murder guideline was appropriate, it is
this one.

Hansen, 256 F. Supp. 2d at 72. Other comments by the court at the

October 9, 2002 sentencing hearing indicate that to the extent the

judge felt constrained, it was as a result of the jury’s guilty

-9-
verdict on the conspiracy counts, not the mandatory guidelines.6

Indeed, the judge’s comments indicate that she felt the mandatory

guidelines allowed her room to craft an appropriate sentence based

upon Hansen’s actual role and his state of mind. This is critical

because here, in contrast to the vast majority of cases, the

applicable guidelines encourage the sentencing judge to choose the

most appropriate point along a spectrum, from first degree murder

(level 43) to second degree murder (level 33)7 based upon an

evaluation of state of mind. The judge exercised this authority by

placing the crime at the level she found appropriate (level 33).

But having exercised the authority to depart, the court

also made it clear that it would go no lower: “[t]here’s no way I’m

going to go below a Level 33.” It is also clear that the court

believed Hansen played a greater role than Brennan in the offenses,

and deserved a longer sentence than Brennan’s 320 months. As the

judge explained:

Based on the relationship, though,
between Mr. Brennan and Mr. Hansen, I agree
with the government that I will not give a
role adjustment to Mr. Hansen, one that Mr.
Brennan got. I do think that, whatever Mr.
Brennan might have been involved in in any

6
There, the district court stated, “I don’t think that, given
what the jury has found, that I have much leeway in the sentence.”
(emphasis added).
7
While the guidelines do not explicitly foreclose going below
level 33, “the Commission does not envision that departure below
that specified in § 2A1.2 (Second Degree Murder) is likely to be
appropriate.” U.S.S.G. § 2A1.1, cmt. n.1.

-10-
 other situation certainly, he was a lesser
participant in this offense than in others.

While there is certainly some evidence that the court

felt sympathetic for Hansen’s situation in light of Pinkerton,

based upon this record, there can be little doubt but that Hansen

falls short of meeting the burden of showing a reasonable

probability that the district court would have imposed a more

lenient sentence under an advisory guideline regime.

B. Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court held that the Sixth Amendment’s Confrontation Clause

prohibits the admission of out-of-court statements that are

testimonial in nature unless the declarant is unavailable and the

defendant had a prior opportunity to cross-examine the declarant

concerning the statements. Id. at 68. Relying on Crawford, Hansen

argues that the district court improperly admitted into evidence

the following:

(1) Brennan’s testimony concerning his
conversation with Hansen, Sheehan, and
John Shirko about the need to wear
certain clothes when stealing vehicles to
be used in robberies;

(2) Brennan’s testimony that Robby Brady
asked Hansen and Brennan if he could come
along with them to steal a car;

(3) Brennan’s testimony that Fidler was
satisfied with the stolen minivan;

-11-
 (4) Brennan’s testimony that Hansen told him
that Bird said to “chill out [about the
money], there’s too much heat around”;

(5) Agent Travaglia’s testimony that Stephen
Brennan agreed to record a conversation
with Hansen; and

(6) Stephen Brennan’s statements made during
the recorded conversation with Hansen.

Hansen’s reliance on Crawford, however, is misplaced for

two reasons. First, for Crawford to apply, the out-of-court

statement must be testimonial in nature. See Crawford, 541 U.S. at

56. Although the Supreme Court did not define the term

“testimonial,” it gave us three examples of statements that would

be testimonial: ex-parte in-court testimony (or its equivalent);

statements contained in formalized documents (such as affidavits

and depositions); and statements made as part of a confession

resulting from custodial interrogation. See id. at 51-52. In

light of these formulations, we find that, with the exception of

Stephen Brennan’s recorded statements, the challenged statements

are nontestimonial because they are either co-conspirator

statements made during the course of and in furtherance of the

conspiracy, or casual remarks which the declarant would not

-12-
reasonably expect to be available for use at a later trial.8 See

Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004).

The statements of Stephen Brennan are not barred by

Crawford because they were not offered for their truth, but to

provide context to the recorded conversation.9 See Crawford, 541

U.S. at 60 n.9, (“The [Confrontation] Clause . . . does not bar the

use of testimonial statements for purposes other than establishing

the truth of the matter asserted.”); see also United States v.

Jimenez, 419 F.3d 34, 44 (1st Cir. 2005) (finding Crawford

inapplicable because “challenged statements were properly

admissible, not for their truth, but to provide context”); cf.

United States v. Logan, 419 F.3d 172, 178 (2d Cir. 2005) (stating

that “the mere fact that the content of [the] statements cast doubt

on [a defendant’s] innocence does not bring those statements within

the ambit of Sixth Amendment protection under Crawford”).

Consequently, Hansen’s arguments are without merit.

C. Jury Instructions

Hansen next argues that the district court erred by

failing to instruct the jury about the possibility of multiple

8
Hansen, while making generalized statements of “multi-level
hearsay,” only raises constitutional Crawford challenges. Because
we find the statements are nontestimonial, for purposes of these
appeals, we need not discuss whether the statements constitute
inadmissible hearsay.
9
When an out-of-court statement is not offered to prove the
truth of the matter asserted, it is not hearsay under Fed. R. Evid.
801(c).

-13-
conspiracies - that is, a conspiracy to steal the minivan as well

as a separate conspiracy to rob the armored truck. The Government

retorts that this argument not only is without merit, but has been

waived and should not be considered on appeal. We agree that the

claim is waived.

An issue is waived when a defendant intentionally

relinquishes or abandons a legal right. See United States v.

Mitchell, 85 F.3d 800, 807 (1st Cir. 1996). Waiver is distinct

from forfeiture, which occurs when a party fails to timely assert

a right, in that a forfeited issue is reviewed for plain error

while a waived issue generally may not be reviewed. See United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

Hansen, through counsel, not only failed to object to the

court’s omission of his proposed multiple conspiracy instruction,

but also affirmatively stated “I am content” after the district

court instructed the jury. We hold that this statement constitutes

an explicit withdrawal of the proffered charge on multiple

conspiracies, and as such, the issue is waived and may not be

revived on appeal. See id. at 437 (finding appellant bound by his

express waiver when he deliberately withdrew his objection).

We will pause to note, however, as we pass by this claim,

even though it is waived, that the evidence adduced at trial

overwhelmingly demonstrated that Hansen knew the minivan would be

used in the armored truck robbery, knew that guns would be used in

-14-
the robbery, and expected his payment to depend on the success of

the robbery. Accordingly, the district court did not commit plain

error as a reasonable jury could not have found more than one

illicit agreement or an agreement different than the one charged.

See United States v. Balthazard, 360 F.3d 309, 315-16 (1st Cir.

2004) (citing United States v. Bandon, 17 F.3d 409, 449 (1st Cir.

1994)).

D. Prosecutorial Vouching

Hansen contends that the Government engaged in improper

“vouching” in both its opening statement and closing argument.

Again, because no objection was raised at trial, we review only for

plain error. See United States v. Millan, 230 F.3d 431, 438 (1st

Cir. 2000). These arguments need not detain us long.

“A prosecutor improperly vouches for a witness when she

places the prestige of her office behind the government’s case by

. . . imparting her personal belief in a witness’s veracity or

implying that the jury should credit the prosecution’s evidence

simply because the government can be trusted.” United States v.

Perez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003) (citing United States v.

Figueroa-Encarnacion, 343 F.3d 23, 28 (1st Cir. 2003)). In the

first challenged remark, the prosecutor told the jury during his

opening statement told the jury that Brennan’s plea agreement

“required him to tell the truth.” This statement is not improper,

because we have clearly held that “a prosecutor properly may admit

-15-
a witness’s plea agreement into evidence, discuss the details of

the plea during closing arguments, and comment upon a witness’s

incentive to testify truthfully.” United States v. Bey, 188 F.3d

1, 7 (1st Cir. 1999).

Hansen’s second challenge is to the closing, where the

prosecutor stated:

The other thing I want to point out, and
this is Brendan Brennan’s agreement with the
government and also what he said on the stand.
What did he say on the stand about what his
agreement was? He didn’t say, ‘My agreement
is to convict PJ.’ He said, ‘My agreement is
to tell the truth.’ He said that over and
over again. ‘My deal with the government is
to tell the truth.’ And any benefit [Brennan]
gets is based on whether he tells the truth.
It’s in the agreement, ladies and gentlemen.
Go ahead and read it. His deal here is to
tell the truth, and I submit to you, that is
precisely what he did during this trial.

These remarks were made in rebuttal to Hansen’s closing, in which

Hansen argued that Brennan’s testimony was “bought and paid for” by

the Government. In this context, we “typically cede prosecutors

some latitude in responding to defense counsel’s allegations of

fabrication.” Perez-Ruiz, 353 F.3d at 10. Latitude or not, the

prosecutor’s comments do not constitute improper vouching as they

do no more than recite facts that are in evidence - that Brennan

agreed to testify truthfully as part of his plea agreement - and

assert why Brennan should be believed. See Millan, 230 F.3d at 438

n.6 (finding no error where prosecutor stated “I submit to you she

is testifying, she has a plea agreement, she has kept that plea

-16-
agreement . . . . She has a plea agreement to testify truthfully .

. . . I submit to you, ladies and gentlemen of the jury, you can

consider the fact, consider the fact that she has indeed testified

truthfully.”).

In a similar vein, Hansen urges that the Government

improperly referred to stricken testimony during its closing

argument - specifically, Brennan’s testimony that Hansen stated he

(Hansen) would “do the ten years if [he] had to” for his role in

the offense. This portion of Brennan’s testimony, however, was not

stricken by the district court and it was proper for the Government

to refer to this evidence in its closing.

As such, Hansen is unable to show plain error regarding

the vouching claim.

E. Motion For A New Trial

Hansen believes that the district court erred in denying

his motion for a new trial because the Government withheld

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963). This claim is reviewed for a manifest abuse of discretion.

See United States v. Glenn, 389 F.3d 283, 287 (1st Cir. 2004).

The Supreme Court’s holding in Brady requires the

Government to disclose exculpatory evidence which is “material

either to guilt or to punishment.” Brady, 373 U.S. at 87. A

district court may award a new trial based on newly discovered

evidence subject to disclosure under Brady if the defendant

-17-
demonstrates “both that the evidence is material and that there is

a ‘reasonable probability’ that it would produce an acquittal upon

retrial.” United States v. Wall, 349 F.3d 18, 22 (1st Cir. 2003)

(citing United States v. Josleyn, 206 F.3d 144, 151 (1st Cir.

2000)).

The alleged Brady violation in this case involves

evidence “that Fidler associated with three separate ‘crews’ who

frequently changed plans and stole cars on the way to various

robberies.” The import of this evidence, according to Hansen, is

that Fidler always acted spontaneously and with different groups of

people; thus, it allegedly shows that Hansen could not have

“reasonably foreseen” that Fidler would use the stolen minivan to

rob an armored truck.

It is not enough for Hansen to show “the mere possibility

that an item of undisclosed information might have helped [his]

defense, or might have affected the outcome of the trial.” United

States v. Garcia-Torres, 341 F.3d 61, 70 (1st Cir 2003) (internal

quotation marks and citations omitted). Instead, Hansen must show

the evidence to be of such probative value that there is a

reasonable probability it would produce a different result. See

id. Hansen’s attempt to meet this burden falls far short. First,

the relevancy of Fidler’s erratic behavior in 1998 is, at best,

unclear, because it involved armored truck robberies that occurred

nearly two years after the robbery at issue here. Second, the

-18-
evidence is hardly exculpatory - if anything, it seems to reinforce

the notion that Fidler was a consummate gun-toting robber who was

highly likely to use stolen vehicles to accomplish his criminal

goals. For these reasons, we find no abuse of discretion in the

district court’s denial of the new trial motion.

Bundled with Hansen’s Brady challenge is a general claim

of ineffective assistance of counsel. Even if it were sufficiently

fact-specific (which it is not), “we have held with a regularity

bordering on the monotonous that . . . claims of ineffective

assistance [of counsel] cannot make their debut on direct review”

but should be presented to the district court pursuant to 28 U.S.C.

§ 2255. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

F. Pinkerton v. United States

As we discussed in connection with the Booker challenge,

the district court gave the jury a Pinkerton instruction that

allowed the jury to find that Hansen, by virtue of his membership

in the charged conspiracy, was criminally liable for the

substantive offenses committed by his co-conspirators during the

course of and in furtherance of the conspiracy. See Pinkerton, 328

U.S. at 645-48. Hansen attacks his conviction under Pinkerton,

arguing (1) he was not afforded adequate notice of the essential

nature of the charges against him; (2) the evidence does not

support a finding that Fidler’s use of a firearm to commit armed

-19-
robbery was reasonably foreseeable to Hansen; and (3) the district

court’s wording of the Pinkerton instruction was improper.

As to notice, the indictment told Hansen that he was

being charged in Counts 1-3 for aiding and abetting robbery

affecting commerce, conspiring to affect commerce by robbery, and

using a firearm during a crime of violence and thereby causing

murder. The unambiguous language of the indictment, combined with

our decisions which have made abundantly clear that a co-

conspirator is liable for acts committed by other members in

furtherance of the conspiracy, see, e.g., United States v. Sanchez,

917 F.2d 607, 612 (1st Cir. 1990), convince us that Hansen,

represented by experienced defense counsel, suffered no unfair

surprise.

Nor is Hansen able to persuasively challenge the

sufficiency of the evidence that was presented against him. The

Government’s case relied primarily on the damaging testimony of

Hansen’s childhood friend, Brennan. We previously described their

friendship as unfortunate, and undoubtedly it was - their combined

actions resulted in a tragic loss of life and countless other

offenses. Their partnership was particularly unfortunate for

Hansen, because, as the district court observed, “[w]ithout

Brennan, there was no case.” Hansen, 256 F. Supp. 2d at 69.

Brennan’s testimony revealed not only that Hansen was aware of the

possibility that the minivan might be used in an armed robbery, but

-20-
that Fidler told him the minivan was needed for an armored car

robbery and guns would be used during the robbery. Moreover,

Brennan and Hansen discussed how armored car robberies often

resulted in killings, and knew their payment was contingent on the

success of the heist. Under de novo review and taken in the light

most favorable to the jury’s guilty verdict, see United States v.

Felton, 417 F.3d 97, 104 (1st Cir. 2005), Hansen’s challenge to the

sufficiency of the evidence is simply unavailing.

Because there was sufficient evidence to allow the jury

to conclude, beyond a reasonable doubt, that Hansen and others were

members of the same underlying conspiracy, the Pinkerton charge to

the jury was proper. See United States v. Torres, 162 F.3d 6, 10

(1st Cir. 1998). We, thus, “are not confronted with the sort of

‘marginal case’ in which the Pinkerton instruction sometimes causes

concern.” Sanchez, 917 F.2d at 612 n.4 (citation omitted).

Additionally, after review of the district court’s charge, we find

it contains all elements of a standard Pinkerton instruction,

including emphasis that the jury was obligated to find each element

of Pinkerton beyond a reasonable doubt.

G. Double Jeopardy

Hansen contends that his indictment and conviction for

violations of 18 U.S.C. §§ 924(c) and (j), and the underlying

violent crimes pursuant to 18 U.S.C. § 1951, violate the Double

Jeopardy Clause of the Fifth Amendment because these counts involve

-21-
the same criminal conduct. We review for plain error because this

argument was not raised below. See United States v. Winter, 70

F.3d 655, 666 (1st Cir. 1995).

If this issue had been raised prior to 1995, Hansen’s

contention may have been viewed as novel. But by now, this

argument is old hat, and borders on frivolous. We have repeatedly

held “that Congress intended § 924(c)’s firearm violation ‘to serve

as a cumulative punishment in addition to that provided for the

underlying violent crime’ and that the Double Jeopardy Clause was

therefore not offended.” United States v. Gonzalez-Arimont, 268

F.3d 8, 13 (1st Cir. 2001) (citing United States v. Centano-Torres,

50 F.3d 84, 85 (1st Cir. 1995)); see also United States v. Battle,

289 F.3d 661, 669 (10th Cir. 2002) (finding no double jeopardy

violation for convictions under 18 U.S.C. §§ 1951 and 924(c) and

(j)).

H. Suppression Arguments

Next, Hansen argues that based upon the Fifth and Sixth

Amendments, the district court should have suppressed inculpatory

evidence, including Hansen’s grand jury testimony and the tape

recorded conversation with Stephan Brennan. The Government is

quick to point out that these arguments are waived as Hansen never

moved to suppress this evidence on Fifth and Sixth Amendment

grounds, nor did he object to its admission on that basis.

-22-
 Federal Rule of Criminal Procedure 12(b)(3) requires

defendants to file suppression motions prior to trial, and failure

to do so constitutes express waiver. See Fed. R. Crim. P. 12(b)(3)

and (h). We interpret the mandatory language of Rule 12 broadly to

include waiver when a defendant fails to file a motion to suppress

before trial, and have even extended waiver to a situation where a

suppression motion was filed, but the defendant did not include a

particular ground and wished to add it later. See United States v.

Santos Batista, 239 F.3d 16, 20 (1st Cir. 2001); United States v.

Torres, 162 F.3d 6, 11 (1st Cir. 1998).

This case does not fall at the outer bounds of our waiver

decisions. Rather, it presents squarely a situation where a

defendant has failed altogether to file a motion to suppress below,

and as such, we will not consider Hansen’s suppression arguments on

appeal. See Santos Batista, 239 F.3d at 19-20.

I. Leading Questions

Hansen contends that his due process rights were violated

by the Government’s use of leading questions during its direct

examination of Brennan. The Rules of Evidence provide that

“[l]eading questions should not be used on the direct examination

of a witness except as may be necessary to develop the witness’

testimony.” Fed. R. Evid. 611(c). “The evil of leading a friendly

witness is that the information conveyed in the questions may

supply a false memory.” United States v. McGovern, 499 F.2d 1140,

-23-
1142 (1st Cir. 1974) (internal quotation marks and citations

omitted). There is, of course, a degree of tolerance for leading

questions under certain circumstances. Because it is so case-

specific, “the trial judge is best situated to strike a practical

and fair balance” and is afforded “extensive discretion over the

phrasing of questions.” Id.

As proof that the entire trial was unfair, Hansen

references two transcript pages, suggesting they contain “examples”

of the Government’s abuse. After reviewing this portion of the

transcript, we note that trial counsel did not object to questions

as leading and, therefore, review is for plain error. Clearly,

there is no plain error; the questions simply do not cross the

“fine line between stimulating an accurate memory and implanting a

false one.” Id.

The Government’s questions were used primarily to develop

coherent testimony from Brennan. This was especially important

here because, based upon Hansen and Brennan’s long criminal history

together, there was a risk of eliciting highly prejudicial (and

ultimately irrelevant) information from Brennan.10 Moreover, we

note that defense counsel engaged in a thorough cross-examination

of Brennan, which enabled the jury to assess appropriately

10
This could also explain why defense counsel chose not to
object to some of the leading questions. See Matthews v. Rakiey,
54 F.3d 908, 929 (1st Cir. 1995) (failing to object to leading
questions “is generally considered a tactical decision”).

-24-
Brennan’s testimony. See United States v. Noone, 913 F.2d 20, 37

(1st Cir. 1990) (considering defense counsel’s thorough cross-

examination in deciding that no prejudicial error occurred from use

of a leading question). Thus, reversal is not warranted.

Hansen’s argument also alludes to leading questions

outside of his general examples. We decline the invitation to mind

read, however, and instead find that such claim of error is

inadequately developed on appeal. See United States v. Bongiorno,

106 F.3d 1027, 1034 (1st Cir. 1997) (stating that issues are waived

when “raised on appeal in a perfunctory manner, not accompanied by

developed argumentation”). Even so, in the majority of instances,

no objection was made below and were we to review, it would again

be for plain error - an insurmountable hurdle considering Hansen

has made little, if any, effort to show that such error likely

affected the outcome below.

J. Juror Note

Hansen claims that he was denied a fair trial because

during trial the jury expressed general concerns about privacy.

Once again, the piers of Hansen’s argument are undermined by

waiver.

On May 23, 2002, the court received the following note

from juror number two:

The jury in general was concerned about safety
in regard to our names having been used on
Monday in front of the defendant and also,

-25-
 just in general we’d just like affirmation
that no witnesses, etc. will know our names.

Initially, defense counsel broached the idea of excusing this juror

because counsel was concerned that the expression of fear showed

that she had prejudged Hansen. Defense counsel elaborated: “If

it’s just a general feeling that the jurors have, fine, that may

well be cured by an instruction.” The court agreed and proposed a

curative instruction to the attorneys, to which defense counsel

responded, “Something along those lines, Judge, fine.”

The court, along with counsel, met with juror number two,

and learned that, in fact, the general concerns expressed in the

note were those of the jury as a whole, and had blossomed prior to

the start of evidence (and, therefore, had no specific reference to

Hansen or his activities). This conversation apparently appeased

Hansen’s attorney, who withdrew his objection to juror number two

by stating, “Given the young lady’s remarks, your Honor, I think an

instruction from you will be curative at this point.” The court

then gave an instruction to the jury which was substantially

similar to the proposed instruction previously agreed to. The

defense interposed no objection to this instruction.

Based on this record, it is clear that trial counsel

diligently raised potential juror issues with the district court.

We decline, however, to revisit them on appeal because counsel

affirmatively withdrew any objections to juror number two, and

specifically agreed to the court’s curative instruction. See,

-26-
e.g., Rodriguez, 311 F.3d at 437. Nonetheless, we believe that the

district court, utilizing its considerable discretion in fashioning

curative instructions, took appropriate measures to maintain the

integrity of Hansen’s right to a fair trial.

K. Inconsistent Theories

As his final claim of error, Hansen argues that the

Government presented factually inconsistent theories during its

prosecutions of Hansen and Brennan. Based upon the record before

us, we disagree. Hansen seems to take issue with the fact that

during Brennan’s case, the Government concentrated on Brennan’s

role in the offenses, and vice versa in Hansen’s case. There is

nothing inconsistent about this approach. In fact, in both

instances the Government theorized the existence of a conspiracy to

steal a minivan for use in an armed robbery. The Government

eventually learned that the minivan theft resulted from the

concerted efforts of Hansen and Brennan on the night of July 27,

1996. Of course, the full extent of Hansen’s involvement was

unearthed after Brennan’s conviction, so it is not surprising that

the Government’s theory at Hansen’s trial had a slightly different

gloss.

-27-
 Accordingly, we find Hansen’s last challenge to be wholly

without merit.11

Affirmed.

11
We need not discuss, therefore, the applicability of United
States v. Weems, 322 F.3d 18, 24 (1st Cir. 2003) (finding “no risk
to defendants’ rights when two different juries are involved”).

-28-