UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1298
UNITED STATES,
Appellee,
v.
GARY P. NEAL,
Defendant, Appellant.
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No. 93-1334
UNITED STATES,
Appellee,
v.
WILLIAM F. KENNEY, JR.,
Defendant, Appellant.
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No. 93-1335
UNITED STATES,
Appellee,
v.
CHARLES J. FLYNN, a/k/a CHUCKY,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Selya and Boudin, Circuit Judges,
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and Carter,* District Judge.
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Paul W. Pappas, by Appointment of the Court, for appellant
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Gary P. Neal.
Michael J. Iacopino, by Appointment of the Court, with whom
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Timothy I. Robinson and Brennan, Caron, Lenehan & Iacopino were
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on brief for appellant William F. Kenney, Jr.
Robert Sheketoff with whom Sheketoff & Homan was on brief
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for appellant Charles Flynn.
Robert J. Veiga, Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for
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appellee.
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September 30, 1994
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* Of the District of Maine, sitting by designation.
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CARTER, Chief District Judge. Appellants Charles
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Flynn, William Kenney, and Gary Neal were found guilty by a jury
on a number of criminal charges stemming from a series of armed
robberies that took place in New Hampshire. Appellants challenge
their convictions on the basis of various pre-trial, trial, and
post-trial rulings issued by the court as well as statements made
by the Government. We affirm on all but two of the issues raised
by Appellants.
The first of these issues involves various Jencks Act
requests made by Appellant Flynn. We find that the record
indicates the district judge may have applied an erroneous legal
standard in ruling that various materials did not qualify as
statements under the Jencks Act. Accordingly, we will remand to
the district court for an evidentiary hearing to determine
whether statements demanded by Appellant Flynn should have been
disclosed under the Jencks Act and, if so, whether nondisclosure
constituted harmless error. We also remand to the district court
on the issue of the order of restitution entered against
Appellant Neal with instructions that a hearing be held to
determine whether the full amount of monetary losses suffered by
First New Hampshire Bank was caused by the conduct underlying
Neal's convictions.
At this point in the proceedings, we choose not to
vacate the court's Jencks Act rulings or the order of restitution
but instead remand to the district court for the limited purpose
of making supplemental findings with regard to these two issues.
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In the interim, we will retain appellate jurisdiction so that we
may review the court's augmented record and subsequent
determinations.
FACTUAL BACKGROUND
FACTUAL BACKGROUND
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Appellants were tried by a jury in the District of New
Hampshire during the months of October and November of 1992. The
evidence presented and believed by the jury demonstrated that
Appellants were involved, in varying capacities, in carrying out
five armed robberies over a five-month period beginning with the
armed robbery of a supermarket and ending in armed robbery of the
First New Hampshire Bank ("First N.H.").1 Appellants were tried
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1 Appellants were initially indicted for committing seven crimes
which included:
(1) the armed robbery of the Demoulas
Market Basket, a supermarket in
Portsmouth, New Hampshire, on April
13, 1991;
(2) the armed robbery of an employee of
the Abercrombie and Finch restaurant
as she was attempting to make a night
deposit of $4800 at a Fleet Bank in
North Hampton, New Hampshire on
May 19, 1991; the jury rendered a not
guilty verdict on counts involving
this robbery;
(3) the armed robbery of an employee of a
retail store called the Dress Barn
while she was attempting to deposit
$763 into the night deposit box at
the First National Bank of
Portsmouth, New Hampshire on June 7,
1991;
(4) the armed robbery on June 30, 1991,
of an employee of Phantom Fireworks,
Inc. in Seabrook, New Hampshire;
counts involving this robbery were
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on a thirty-two-count indictment charging them as follows:
Counts 1 and 2 charged Appellants Flynn
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and Kenney with violations of the
Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. 1962(c)
and (d), with each of the seven robberies
alleged as predicate acts;
Count 3 charged all three Appellants with
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conspiracy to commit robbery of First
N.H. in violation of 18 U.S.C. 371 and
18 U.S.C. 2113(a) and (d);
Counts 4 and 5 alleged that Appellants
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Flynn and Kenney committed armed and
unarmed bank robbery of First N.H., in
violation of 18 U.S.C. 2113(d) and (a)
and 18 U.S.C. 2;
Counts 6 through 15, 17, and 18 alleged
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conspiracy and interference with commerce
by threats or violence, in violation of
the Hobbs Act, 18 U.S.C. 1951, with one
or more counts corresponding to each of
the seven robberies. Flynn was named in
all counts; Kenney was named in counts 8
through 18;
Counts 16 and 20 through 25 charged the
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use and carriage of firearms during and
in relation to crimes of violence, in
violation of 18 U.S.C. 924(c)(1), with
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dismissed by the court;
(5) the armed robbery on August 3, 1991,
of the home of James Fitzpatrick, the
owner of a chain of stores known as
Lighthouse Markets, Inc., in Hampton,
New Hampshire;
(6) the armed robbery on August 17, 1991,
of the person of James Fitzpatrick
after he made his night rounds to
collect receipts at each of his
stores; and
(7) the armed robbery of the First N.H.
in Stratham, New Hampshire on
September 9, 1991.
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each count corresponding to one of the
seven robberies. Flynn was named in all
counts and Kenney was named in all counts
except Count 20;
Counts 19 and 26 through 29 charged
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possession of a firearm by a convicted
felon, in violation of 18 U.S.C.
922(g). Flynn was named in Count 19
only; Kenney was named in Count 26 only;
Count 30 charged Appellant Neal as an
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accessory after the fact, in violation of
18 U.S.C. 3;
Count 31 charged money laundering against
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Appellants Neal and Flynn, in violation
of 18 U.S.C. 1956 and 18 U.S.C. 2;
and
Count 32 charged criminal forfeiture of a
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1987 Nissan automobile against Neal and
Flynn, in violation of 18 U.S.C. 981
and 1956.
Government's Consolidated Brief at 3-6.
Appellants were initially charged with three other co-
conspirators, Bruce Raineri, Brian Raineri, and Richard Ferguson.
These three men pled guilty and cooperated to varying extents
with the Government. Several other alleged co-conspirators,
including Arthur Cosgro and Thomas McQueeney, also provided
evidence against Appellants.
The evidence presented during the thirty-one-day trial
is sufficient to justify the following conclusions of fact.
Appellant Charles Flynn, a/k/a "Chuckie," was the leader and
organizer of the group of co-conspirators. Flynn scoped out
robbery locations, devised the plans, and recruited others to
commit or assist in the crimes. Appellant William Kenney
participated as the gunman and shared in proceeds of four
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robberies planned by Flynn, excluding the Market Basket robbery.
Kenney also assisted Flynn in
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surveilling armored cars that serviced various stores and banks
which were prospective robbery sites. Appellant Gary Neal played
a more limited role in the overall conspiracy (this is reflected
by the fact that he was indicted on only four counts and found
guilty on two counts limited to the bank robbery).2 The
evidence demonstrated that Neal provided his home to the co-
conspirators where they planned the bank robbery and took refuge
after they committed the crime. Immediately following the
robbery, Neal carried a box from the getaway car into his home
containing the gun used in the bank robbery along with the stolen
proceeds. He also used proceeds from the robbery to purchase a
car in his name that was used by Flynn and Kenney to travel to
Arizona and then to California in order to escape the scene of
the crime. On their trip, Flynn and Kenney disposed of clothes
used in the crime and stored the gun used in all five crimes in a
garage belonging to Patricia Ferguson, a co-conspirator's
relative.
On defendants' motions at the close of the evidence,
the court dismissed RICO Counts 1 and 2, finding the Government
failed to demonstrate a sufficient continuity of offenses. The
court also dismissed Counts 12, 13, and 23, all involving the
Phantom Fireworks robbery. The jury then rendered its verdicts,
finding Flynn guilty on all remaining charges against him except
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Counts 8, 9, and 21, involving the night deposit robbery of an
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2 The four counts include conspiracy to commit bank robbery,
accessory after the fact to bank robbery, money laundering, and
criminal forfeiture.
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employee of Abercrombie and Finch restaurant. The jury found
Kenney guilty on all remaining counts against him except for the
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counts involving the Abercrombie and Finch robbery and found Neal
guilty of being an accessory after the fact and money laundering,
as alleged in Counts 30 and 31, but not guilty on count 3,
alleging conspiracy to rob First N.H.
DISCUSSION
DISCUSSION
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Appellants raise a litany of challenges against various
rulings issued by the district court judge and statements made by
the Government throughout the proceedings. The Court finds merit
in Appellant Flynn's argument that both the Government and the
district judge were operating under an improper legal standard in
determining what statements qualified as Jencks Act material and
should have been disclosed to the defense during trial. The
Court also finds merit in Appellant Neal's argument that the
court erred in ordering $266,500 in restitution against him for
his role in the First N.H. robbery. These arguments will be
treated first. The Court finds no merit in Appellants' remaining
claims which will be discussed, in turn, in the order of joint
challenges raised by Appellants followed by challenges raised
individually by Flynn, Kenney, and Neal.
I. LEGAL STANDARD USED BY THE
I. LEGAL STANDARD USED BY THE
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COURT AND GOVERNMENT IN DETERMINING WHAT
COURT AND GOVERNMENT IN DETERMINING WHAT
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EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN
EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN
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A. Brady Claims
A. Brady Claims
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Appellant Flynn has framed much of his argument on
appeal in terms of a Brady violation. Brady v. Maryland, 373
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U.S. 83 (1963)(holding that a prosecutor's suppression of
evidence favorable to and requested by a defendant violates due
process where the evidence is material to guilt or to
punishment). Appellant points to statements in the record
indicating that the Government attorney harbored an erroneously
narrow view of what materials were exculpatory and should have
been disclosed to the defense pursuant to Brady and its progeny.
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Flynn acknowledges that the Government provided certain disputed
materials to the trial court for in camera review. However, he
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argues that the Government's erroneous view of what qualified as
Brady, as a threshold matter, most likely resulted in the
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withholding of many other exculpatory materials from the court.
He requests this Court to unseal the documents that were turned
over, remand the case for further hearing in the district court,
and order that the Government disclose all other Brady material
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in its possession.
A careful and thorough review of the record supports
Appellant's assertion that the Government attorney misunderstood
the reach of Brady.3 However, in virtually every instance of
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3 In one example of this misunderstanding, Appellant's counsel
inquired whether any Brady material existed with respect to
Richard Ferguson, a co-conspirator who cooperated with the
Government. The Government attorney replied:
First of all, it's not Brady material.
If it's anything, it's impeachment
material, if it is even that.
Tr. (October 19, 1992) at 115. In a second incident, the
Government attorney stated that:
Prior inconsistent statements are not
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dispute pointed out by Appellant and the Government, the
Government attorney indicated on the record that all materials
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related to the witness in question were being turned over to the
district judge for review.4 Appellant makes no argument that
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Brady. I'll be happy at some point to
give Mr. Wilson a lesson in the
difference between Brady and impeachment
material, but there is a difference all
the way up to the United States Supreme
Court.
Tr. (October 20, 1992) at 77.
These statements reflect a misunderstanding on the
Government's part of the Brady rule. The Supreme Court has
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clearly stated that impeachment evidence may well qualify as
Brady material. United States v. Bagley, 473 U.S. 667, 676
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(1985); Giglio v. United States, 405 U.S. 150, 154 (1972). As
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the Court explained in Giglio:
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When the 'reliability of a given witness
may well be determinative of guilt or
innocence,' nondisclosure of evidence
affecting credibility falls within th[e]
general rule [of Brady].
Giglio, 405 U.S. at 154.
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The significance of the Government's failure to appreciate the
nature of exculpatory evidence under Brady is demonstrated by its
evaluation of materials related to the witness James Fitzpatrick,
who was testifying about a robbery of his home. Tr. (October
28, 1992) at 115. The court reviewed these materials, which the
Government had claimed did not fall under Brady, and disclosed
them to the defense because it found that the materials contained
exculpatory evidence. Id. at 121. The defense was able to use
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the materials quite effectively in the cross-examination of
Fitzpatrick. Id. at 123-24 and 126-44.
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4 All materials were supplied for the court's review regarding
Brady or Jencks Act requests with respect to witnesses Laura
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MacPherson, Tr. (October 8, 1992) at 119-21; Anita Ramsdell, Id.
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at 217; Richard Ferguson, Tr. (October 9, 1992) at 225-26, Tr.
(October 14, 1992) at 153; Sergeant Coleman Forbes, Tr. (October
15, 1992) at 123, Tr. (October 16, 1992) at 142; Terrence
Kinneen, Tr. (October 16, 1992) at 91; Douglas Scamman, Tr.
(October 19, 1992) at 172-74; Arthur Cosgro, Tr. (October 20,
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the district judge erred in his understanding of Brady, other
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than pointing out that the judge never corrected the Government
attorney when he mischaracterized Brady's mandate. Our reading
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of the record satisfies us that the district judge
conscientiously reviewed all materials in question. Because
Appellant points to no other evidence to indicate that
exculpatory evidence was withheld in violation of Appellant's
Fifth Amendment right to a fair trial, we affirm the district
court's Brady rulings.
B. Disclosure Under the Jencks Act
B. Disclosure Under the Jencks Act
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Appellant's other argument, that the Government
attorney too narrowly construed the reach of the Jencks Act, has
much more bite because the record indicates that the district
judge adopted the Government's misinterpretation and ruled
against several Jencks Act requests on an erroneous legal ground.
Before discussing the legal error in detail, it is necessary to
consider the purpose and provisions of the Act.
The Jencks Act establishes procedures whereby a
criminal defendant may exercise his limited right to obtain
previous statements made by government witnesses that are in
possession of the United States Government to be used for
impeachment purposes. 18 U.S.C. 3500. Subsections (a) and (b)
of the Act provide that prior statements are not subject to
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1992) at 74; Linda Sherouse, Tr. (October 27, 1992 -- afternoon
session) at 87; Thomas McQueeney and Brian Raineri, Tr. (October
28, 1992) at 17, Tr. (November 2, 1992) at 3-4, Tr. (November 3,
1992) at 219-20; James Fitzpatrick, Tr. (October 28, 1992) at
115, 121.
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disclosure until the witness has testified on direct examination
and are available only to the extent that the statements relate
"to the subject matter as to which the witness has testified."
18 U.S.C. 3500(a) and (b). The Act further requires the
defendant to make a motion for production. 18 U.S.C. 3500(b).
Subsection (e) defines "statements" subject to the Act as
follows:
(1) a written statement made by said
witness and signed or otherwise
adopted or approved by him;
(2) a stenographic, mechanical,
electrical, or other recording, or
a transcription thereof, which is a
substantially verbatim recital of
an oral statement made by said
witness and recorded
contemporaneously with the making
of such oral statement; or
(3) a statement, however taken or
recorded, or a transcription
thereof, if any, made by said
witness to a grand jury.
18 U.S.C. 3500(e).
At issue in this case is the reach of subsections
(e)(1) and (e)(2) which first came into dispute on the third day
of trial. 18 U.S.C. 3500 (e)(1) and (e)(2). Appellant's
counsel was conducting cross-examination of Laura MacPherson, a
teller for First N.H. who had witnessed the bank robbery.
MacPherson testified that while she was being questioned by
police at the scene of the crime, an officer was taking notes
based on what she was saying. Appellant's counsel then called
for a sidebar requesting that the Government turn over these
notes pursuant to the Jencks Act:
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Court: It isn't [Jencks] unless she's
seen it and adopted it.
Counsel: But if 18 3500 controls [18
U.S.C. 3500], as I read it, a statement
that is taken down by anybody, she
doesn't have to adopt it. If it's a
written statement taken down by a person
dealing with the subject matter in
question, I'm entitled to it. And I
refer to 18 3500(e)(2).
Government: As I understand the
application of the cited rule under
Jencks, what counsel is referring to
under (e)(2) is a mechanical recording or
a transcription of a recording of some
kind, either stenographic, mechanical,
electrical, or other recording or
transcription of that recording; that is,
a transcript. There is no such material
as the statement is defined under Jencks
as I read the statute in that rule.
Court: That was my understanding of the
interpretation of the statute, sir, and
there are none of those stenographic
recordings [or] transcriptions.
Tr. (October 8, 1992) at 118, 121-22.
While the Government attorney mentioned "other
recording," it is clear from a reading of the entire interchange
that the court and Government attorney disagreed with counsel's
argument that subsection (e)(2) of the Jencks Act encompasses
oral statements made by witnesses that are written down by
government agents as they are taking notes on the conversation,
so long as such statements are substantially verbatim accounts.
Further, the trial record is replete with statements by the court
indicating that it viewed subsections (e)(1) and (e)(2) as
limited to statements that are either adopted by a witness or
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recorded through stenographic or some kind of mechanical means.5
This legal basis, cited as the ground for many of the
court's Jencks Act rulings, is erroneous. Since 1959, the United
States Supreme Court has held that the phrase "other recording"
in subsection (e)(2) "was meant to encompass more than mere
automatic reproductions of oral statements." Palermo v. United
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States, 360 U.S. 343, 352 (1959); 18 U.S.C. 3500(e)(2).
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Following the Supreme Court's lead, this Court has stated that
"[a] longhand writing which the court found fairly followed the
witness' words, subject to minor, inconsequential errors" would
fall within (e)(2). Campbell v. United States, 296 F.2d 527, 532
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(1st Cir. 1961), on remand, 199 F. Supp. 905 (D. Mass. 1961), and
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supplemental op., 303 F.2d 747 (1st Cir. 1962), vacated on other
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grounds, 373 U.S. 487 (1963)(Campbell II); see also Campbell v.
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United States, 365 U.S. 85 (1961)(Campbell I)(finding that typed
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interview report prepared by FBI agent based on notes taken
during a pretrial meeting with a government witness may qualify
as Jencks Act statements under subsection (e)(1), if it was
adopted by the witness, or subsection (e)(2), if the report
closely followed notes that included verbatim statements); United
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States v. Harris, 543 F.2d 1247, 1250 (9th
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Cir. 1976)("handwritten or rough interview notes taken by a
government agent during a criminal investigation" may contain
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5 See Appendix I for examples of various Jencks Act rulings by
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the court that were, or could possibly have been, based on an
erroneous legal ground. The examples in this Appendix are not
meant to be exhaustive but only to point out on remand the more
obvious rulings that were arguably based on legal error.
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substantially verbatim recitals of witness statements producible
under the Jencks Act). The Supreme Court has indicated, however,
that Congress intended to limit subsection (e)(2) to:
only those statements which could
properly be called the witness' own
words . . . . It [is] important that the
statement could fairly be deemed to
reflect fully and without distortion what
had been said to the government agent.6
Id. at 352-53.
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6 The remaining portion of this quotation in Palermo is worth
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citing here to provide the court below with guidance, on remand,
in determining whether the disputed statements fall under
subsection (e)(2) of the Act:
Distortion can be a product of
selectivity as well as the conscious or
inadvertent infusion of the recorder's
opinions or impressions. It is clear
from the continuous congressional
emphasis on 'substantially verbatim
recital,' and 'continuous, narrative
statements, made by the witness recorded
verbatim, or nearly so . . .' that the
legislation was designed to eliminate the
danger of distortion and
misrepresentation inherent in a report
which merely selects portions, albeit
accurately, from a lengthy oral recital.
Quoting out of context is one of the most
frequent and powerful modes of
misquotation. We think it consistent
with this legislative history, and with
the generally restrictive terms of the
statutory provision, to require that
summaries of an oral statement which
evidence substantial selection of
material, or which were prepared after
the interview without the aid of complete
notes, and hence rest on the memory of
the agent, are not to be produced.
Neither, of course, are statements which
contain the agent's interpretations or
impressions.
Palermo, 360 U.S. at 352-53.
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In United States v. Newton, 891 F.2d 944, 953-54 (1st
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Cir. 1989), this Court rejected an argument that the district
court erred by not conducting an inquiry into whether disputed
notes were "substantially verbatim" statements by the witness
pursuant to 18 U.S.C. 3500(e)(2). We rejected the argument on
two grounds: first because Appellant failed to make a motion on
the basis of that subsection to the court below and, second,
there was no testimony in the record to indicate that "the agent
[had been] recording the exact words of the witness." Id. at
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954. In this case, however, Appellant's counsel elicited from a
number of witnesses that agents had been taking notes as the
witnesses were making statements; at sidebars, counsel
specifically cited (e)(2) as the basis for his Jencks Act
motions; and he registered, on the record, his disagreement with
the court's and the Government's interpretation of the statute.
Appellant clearly raised this issue to the court below
and on appeal. After examining the record, we find that the
district judge likely ruled against a number of Appellant's
Jencks Act requests on an erroneous legal ground.7 Rather than
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7 In all honesty, this Court has not always been as clear as it
should have been in pointing out the distinctions between 18
U.S.C. 3500 (e)(1) and (e)(2). In United States v. Sep lveda,
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15 F.3d 1161, 1179 (1st Cir. 1993), this Court indicated that to
be discoverable under the Jencks Act, a statement must be
"substantially a verbatim account" and "signed or otherwise
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verified by the witness himself." The statements in question
satisfied neither requirement. It is clear from a reading of the
authorities cited in Sep lveda, however, that this Court
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interprets the Jencks Act as requiring either a showing that the
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statement is a substantially verbatim account or that it was
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adopted by the witness. See, e.g., United States v. Newton, 891
___ ____ _______________________
F.2d 944, 953-54 (1st Cir. 1989)(concerning statement that
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vacate the court's Jencks Act rulings, we choose to remand the
case for the limited purpose of the taking of additional evidence
while retaining appellate jurisdiction in the interim. We have
previously noted the usefulness of such a limited remand, see
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United States v. Levy, 897 F.2d 596, 599 (1st Cir. 1990)
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(endorsing limited remand for purposes of clarification where
ambiguities lurk in the sentencing record), and have employed the
practice in several cases. See, e.g., U.S. v. Qui ones, No. 93-
___ ____ ________________
1601, slip op. at 16-17 (1st Cir. May 20, 1994)(remanding for
evidentiary hearing to determine whether sentencing departure was
warranted while retaining appellate jurisdiction); United States
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v. Parra-Iba ez, 936 F.2d 588, 598 (1st Cir. 1991)(remanding for
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evidentiary hearing to determine whether error during Rule 11
colloquy was harmless while retaining appellate jurisdiction),
remanded, 951 F.2d 21 (1st Cir. 1991).
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On remand, the district court should hold an
evidentiary hearing and report its findings back to us within
ninety (90) days. The hearing should be limited to determining
whether Appellant Flynn's motions for production, which were
denied on the basis of the erroneous legal ground identified in
this opinion, should have been granted, and documents produced,
under the Jencks Act. We intimate no view on whether disclosure
of any of these materials was required. The district court
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arguably fell under 18 U.S.C. 3500(e)(2)); United States v.
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Gonz lez-S nchez, 825 F.2d 572, 586-87 (1st Cir.), cert. denied,
________________ _____ ______
Latorre v. United States, 484 U.S. 989 (1987)(concerning
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statement that arguably fell under 18 U.S.C. 3500(e)(1)).
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should conduct this hearing, applying the legal standards
articulated in this opinion and limited to examining whether the
disputed materials contain substantially verbatim recitals of
witness statements as defined under subsection (e)(2). If the
court determines that the materials in question do not contain
producible statements or that the nondisclosure of certain
statements, while legal error, was harmless, it should supplement
the record by setting forth its findings and explaining why a new
trial is not required. If, on the other hand, the court
concludes that the Government should have been required to
deliver certain materials, or portions of materials, pursuant to
subsection (e)(2), and that the error of nondisclosure was not
harmless, it should vacate the judgment of conviction and grant
Appellant Flynn a new trial.
II. THE COURT'S ORDER OF $266,500
II. THE COURT'S ORDER OF $266,500
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IN RESTITUTION AGAINST APPELLANT NEAL
IN RESTITUTION AGAINST APPELLANT NEAL
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Appellant Neal alone challenges the court's restitution
order of $266,5008 to First N.H. pursuant to the Victim and
Witness Protection Act ("VWPA"), 18 U.S.C. 3663, 3664. He
argues that the district court erred, as a matter of law, by
ordering him to pay full restitution of First N.H.'s losses from
the robbery when those losses were not fully attributable to his
offenses of being an accessory after the fact and money
laundering. We review this claim of legal error de novo. See
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United States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993).
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8 Appellants Flynn and Kenney were also ordered to pay
restitution to First N.H. in the amount of $266,500.
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In cases where a defendant has been convicted of
specific federal offenses, section 3663 of the VWPA authorizes a
sentencing court to order, "in addition to or . . . in lieu of
any other penalty authorized by law, that the defendant make
restitution to any victim of such offense." 18 U.S.C. 3663(a).
The following section, 18 U.S.C. 3664(a), directs the court to
consider a number of factors, including loss sustained by the
victim as a result of the offense, in determining the amount of
restitution to be ordered against a defendant.9 In Hughey v.
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United States, 495 U.S. 411, 413 (1990), the United States
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Supreme Court interpreted these provisions as setting a maximum
limit whereby restitutionary awards under the VWPA are not to
exceed "the loss caused by the specific conduct that is the basis
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of the offense of conviction."
In objecting to the restitutionary award in proceedings
below, Neal argued that he was compensated no more than $5000 by
the armed robbers for assisting them in evading law enforcement
officials and laundered about $14,000 of the robbery proceeds by
purchasing a getaway vehicle that was later confiscated by the
Government. In an order dated February 22, 1993, the district
____________________
9 18 U.S.C. 3664(a) directs the court to consider the
following factors:
. . . the amount of the loss sustained
by any victim as a result of the offense,
the financial resources of the defendant,
the financial needs and earning ability
of the defendant and the defendant's
dependents, and such other factors as the
court deems appropriate.
-20-
court summarily dismissed Neal's argument that he should not be
required to make restitution in an amount greater than the
proceeds that he personally obtained from the robbery. Order
(Docket No. 302) at 3-4. While the court was correct in its view
that the VWPA does not require restitutionary awards to be
limited to the amount obtained by the defendant, the record gives
no indication of whether the court calculated, pursuant to
Hughey, the portion of First N.H.'s losses that were actually
______ ______________
caused by the specific criminal conduct forming the basis for
_________________________________________________________________
Neal's convictions.
__________________
The VWPA, itself, does not require the court to make
explicit findings to justify restitutionary awards. This Court
has held "that a district judge need not make open-court findings
on the statutory factors when issuing a restitution order so long
as the record on appeal reveals that the judge made implicit
findings or otherwise adequately evinced his consideration of
those factors." Savoie, 985 F.2d at 618. The record here
______
indicates that the court ordered the same restitutionary amounts
of $266,500 against Appellants Neal, Kenney, and Flynn. The
record also indicates that in connection with the bank robbery,
Kenney and Flynn were convicted of conspiracy to rob First N.H.,
conspiracy and interference with commerce by threats or violence
in violation of the Hobbs Act, and the use of firearms during
crimes of violence. Kenney was also convicted for possession of
a firearm by a convicted felon in committing the bank robbery,
and Flynn was convicted of money laundering. In comparison with
-21-
Flynn and Kenney, Neal was convicted of being an accessory after
the fact and money laundering. Given these factors indicating
the disparate nature of Neal's criminal conduct, there is not an
adequate basis in the record to determine whether the district
judge found that the full amount of losses suffered by First N.H.
________________________________________________
was "caused by the specific conduct that [was] the basis of"
Neal's convictions. Hughey, 495 U.S. at 413.
______
Such a determination was required in this case even
though Congress amended certain provisions of the VWPA soon after
the Hughey decision as part of the Crime Control Act of 1990.
______
See Pub. L. No. 101-647, 2509, 104 Stat. 4789, 4863 (1990).
___
One of the amended subsections, codified at 18 U.S.C. section
3663(a)(2), expanded the definition of "victim" for purposes of
restitution, providing in pertinent part that:
a victim of an offense that involves as
__
an element a scheme, a conspiracy, or a
__________
pattern of criminal activity means any
person directly harmed by the defendant's
criminal conduct in the course of the
scheme, conspiracy, or pattern.
18 U.S.C. section 3663(a)(2)(emphasis added). This broadening of
the definition of "victim" appears to apply to cases involving
mail fraud, racketeering, or other federal crimes that require
proof of a scheme, conspiracy, or pattern of criminal conduct.
This Court faced such a case in U.S. v. Cronin, 990 F.2d 663 (1st
______________
Cir. 1993) and decided that where defendants had committed
various mail fraud offenses prior to enactment of section
_____ __
3663(a)(2), restitution should be limited to the amounts alleged
in the specific counts on which each defendant was found guilty
-22-
and not awarded for the full amount of losses stemming from the
mail fraud scheme of which each defendant was a part.
While the bank robbery alleged in the indictment in
this case occurred subsequent to the VWPA amendments, section
__________ __
3663(a)(2) does not appear to support the restitutionary award
entered against Appellant Neal. Neal was convicted of money
laundering and of being an accessory after the fact. Neither of
these offenses involves proof of a scheme, conspiracy or pattern
of criminal activity as an element. See 18 U.S.C. section 1956
___
(laundering of monetary instruments) and 18 U.S.C. section 3
(accessory after the fact).
Accordingly, we remand the case with instructions that
the court hold a hearing to determine whether the full amount of
damages suffered by First N.H. are attributable to the conduct
underlying Appellant's convictions.10 We leave the dimensions
of the hearing, as well as the necessity vel non for taking
___ ___
additional evidence, in the sound discretion of the district
court. Similar to the limited remand that we ordered with
respect to Appellant Flynn's Jencks Act challenge, see pp. 16-17
___
____________________
10 We do not mean to suggest that on remand there is no possible
basis for holding Neal accountable for the full amount of losses
suffered by First N.H. We are only suggesting that the record,
as it stands, does not indicate whether, and upon what
evidentiary basis, the trial judge determined that the full
amount of losses are attributable to Neal's criminal conduct. If
on remand, for example, evidence is presented indicating that
Neal played a significant role in helping the other defendants
escape and that but for his actions, there was a substantial
likelihood that the full proceeds would have been recovered, the
court could well be within its statutory authority in imposing
the full $266,500 in restitution.
-23-
supra, we will retain appellate jurisdiction and order the court
_____
to report its findings to us within ninety (90) days. If the
court determines that the full amount of First N.H.'s damages
were caused by Appellant's criminal conduct, it should supplement
the record with these findings. If the court concludes that the
full restitutionary award is not supported by facts presented at
the evidentiary hearing, it should vacate the award and enter a
new restitutionary order based upon a determination of that
amount of damages suffered by First N.H. which is attributable to
the conduct underlying Appellant's convictions.
III. JOINT CHALLENGES
III. JOINT CHALLENGES
______________________
A. The Court's Failure to Define Reasonable Doubt
A. The Court's Failure to Define Reasonable Doubt
__________________________________________________
Appellants Flynn, Kenney, and Neal argue that the
court's jury instructions, which failed to define the term
"reasonable doubt" and used the phrase "by medium of admissible
evidence,"11 violated their due-process rights to a fair trial
and undermined confidence that their convictions rested upon
proof comporting with the constitutional minimum.
This Court has clearly held that "an instruction which
____________________
11 The district court judge used this phrase in the following
context:
The law in the United States of America
presumes each defendant to be innocent of
crime, and this presumption of innocence
can be overcome only when the government,
by medium of admissible evidence,
________________________________________
satisfies its burden of convincing the
jurors beyond a reasonable doubt of the
guilt of each defendant as to every
element of the offense with which that
defendant has been charged.
-24-
uses the words reasonable doubt without further definition
adequately apprises the jury of the proper burden of proof," so
long as the phrase is not buried as an aside. United States v.
________________
Olmstead, 832 F.2d 642, 646 (1st Cir. 1987), cert. denied, 486
________ _____ ______
U.S. 1009 (1988). This Court is satisfied that the instructions
rendered in this case fully satisfy constitutional requirements
and comply with Olmstead.12 The judge reiterated the
________
____________________
12 In addition to the instructions listed in n.11, supra, the
_____
court further instructed the jury as follows:
Moreover, the law never imposes upon a
defendant the burden or duty of
testifying or producing any evidence, so
a reasonable doubt may arise not only
from the evidence produced but also from
a lack of evidence. The government must
prove beyond a reasonable doubt as to
each defendant every essential element of
the offense with which that defendant is
charged. Each defendant has the right to
rely upon the failure of the prosecution
to establish such proof, and each
defendant may also rely upon evidence
brought out on cross-examination of
witnesses presented by the prosecution.
The court then concluded its instructions as follows:
To sum up then, you should treat each
charge made with respect to each
defendant separately and give to each of
such charges the same careful and
thorough consideration you would wish to
have given to each of you were you
charged with the offenses set forth in
this indictment. As I have indicated to
you, the burden in each instance which is
placed upon the government is to prove
each element of the offenses with which
each defendant is charged beyond a
reasonable doubt, and in the event the
government fails to sustain its burden of
proof beyond a reasonable doubt as to any
essential element of any offense charged
-25-
government's burden of proof a number of times; explained that
the government must satisfy this burden with respect to each
element of the offense with which each defendant is charged; and
told the jurors to consider the evidence separately and
impartially against each defendant. See n.12, supra. When read
___ _____
in context, the phrase "by medium of admissible evidence" would
be interpreted by a reasonable juror to mean that the government
must satisfy its burden of proof through admissible evidence.13
_______
____________________
against each defendant, it has failed in
its burden of proof as to each defendant
and that defendant is to be
acquitted. . . . So, if any reasonable
doubt remains in your minds as to the
guilt of any defendant after impartial
consideration of all of the evidence with
respect to such defendant, it is your
duty to find that defendant not guilty.
You should analyze what the evidence in
the case shows with respect to each
element of each offense charged against
each defendant and determine the issue as
to whether the government has sustained
its burden of proof with respect to each
such element.
13 The first definition of "medium" found in Webster's
dictionary is "something in a middle position" or "a middle
condition or degree." The second definition is "a means of
effecting or conveying something." Webster's Ninth New
______________________
Collegiate Dictionary (1987).
_____________________
Appellants argue that the trial court's instructions led
jurors to interpret "medium" along the lines of the first
definition. We note that during the Rule 30 sidebar regarding
objections to the instructions, Appellants did not request that
the district court clarify the sense in which it used the word
"medium." In addition, we find that a reasonable juror would
have interpreted "medium" in accordance with the second
definition where the judge used "beyond a reasonable doubt" in
the same sentence and made clear that the latter standard
represented the Government's burden of proof:
this presumption of innocence can be
-26-
Appellants ask the Court to reconsider its holding in
Olmstead in light of recent Supreme Court decisions. The
________
opinions cited by Appellants, however, do nothing more than
provide support for Olmstead. The cases all involve judicial
________
attempts to define reasonable doubt and recognize that attempts
to imbue the phrase with exact definition are fraught with
pitfalls. See, e.g., Victor v. Nebraska, 114 S. Ct. 1239
___ ____ ____________________
(1994)(holding that instructions, taken as a whole, correctly
conveyed the concept of reasonable doubt despite the use of such
terms as "moral evidence", "moral certainty," and "substantial
doubt"); Sullivan v. Louisiana, 113 S. Ct. 2078 (1993)(holding
______________________
that a constitutionally deficient instruction defining reasonable
doubt cannot be harmless error); Cage v. Louisiana, 498 U.S. 39,
_________________
41 (1990)(holding that a defendant's due-process rights were
violated where a judge instructed jurors that reasonable doubt
was equivalent to a "grave uncertainty" and an "actual
substantial doubt" and that jurors could convict if morally
certain of a defendant's guilt).
In Victor v. Nebraska, 114 S. Ct. at 1248, Justice
___________________
O'Connor noted that the court did not condone the use of such
terms as "moral certainty" in defining reasonable doubt but went
on to find that the instructions placed the terms in a context
____________________
overcome only when the government, by
medium of admissible evidence, satisfies
its burden of convincing the jurors
beyond a reasonable doubt of the guilt of
each defendant as to every element of the
offense with which that defendant has
been charged.
-27-
correctly conveying the quantum of proof necessary for a finding
of guilt. She also noted that:
[T]he Constitution neither prohibits
trial courts from defining reasonable
doubt nor requires them to do so as a
matter of course (citation omitted).
Indeed, so long as the court instructs
the jury on the necessity that the
defendant's guilt be proven beyond a
reasonable doubt, (citation omitted), the
Constitution does not require that any
particular form of words be used in
advising the jury of the government's
burden of proof (citation omitted).
Victor, 114 S. Ct. at 1243.
______
Because we find that nothing in the Supreme Court cases
cited by Appellants brings into question the holding in the
Olmstead case, we affirm the district court's instructions.
________
B. Sufficiency of Evidence Supporting Guilty Verdicts
B. Sufficiency of Evidence Supporting Guilty Verdicts
______________________________________________________
of Flynn and Kenney on Counts Involving the Dress Barn Robbery
of Flynn and Kenney on Counts Involving the Dress Barn Robbery
______________________________________________________________
Appellants Flynn and Kenney challenge the sufficiency
of the evidence supporting their guilty verdicts on Counts 10,
11, and 22, involving the robbery of a Dress Barn employee while
she attempted to deposit about $763 into a night deposit box.
Counts 10 and 11 alleged that Flynn and Kenney conspired and
interfered with commerce by threats or violence in committing the
Dress Barn robbery in violation of the Hobbs Act, 18 U.S.C.
1951. Count 22 involved the use and carriage of a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C. 924(c)(1).
In reviewing a sufficiency-of-the-evidence claim, the
Court must view the facts in the light most favorable to the
-28-
Government, deferring to the jury's verdict if the evidence can
support varying interpretations, at least one of which is
consistent with the defendant's guilt. United States v. Browne,
________________________
891 F.2d 389, 393 (1st Cir. 1989). Viewed in this light, the
evidence must be of such a quantum that a reasonable trier of
fact could find guilt beyond a reasonable doubt but the evidence
_____
need not compel such a finding. Id.
___
As the basis for their challenge, Appellants point
primarily to inconsistencies in identification testimony between
the bank employee and co-conspirator Thomas McQueeny. The bank
employee testified that the robber was wearing a white styrofoam
woodworker's mask that stood out from his face and that he was
wearing a Patagonia jacket and a pair of jeans. McQueeney, on
the other hand, indicated that Kenney was wearing a white
painter's mask made of cloth and a blue runner's suit.14
Viewed in the light most favorable to the Government,
the identification testimony supports the jury's guilty verdict.
____________________
14 The remaining evidence consisted of additional testimony by
McQueeny who stated that he and Flynn watched Kenney try on a
white cloth painter's mask and that, at Flynn's request, he
dropped Kenney off near First National Bank on the night of the
robbery carrying a bag with the mask, the gun, and the gloves.
He also testified about an argument the next morning during which
Flynn scolded Kenney for robbing women with only $600. The
employee was unable to identify Kenney but was able to testify to
his approximate height and age. She also testified that he
carried a handgun similar to the semi-automatic admitted by the
Government as Exhibit 42 and that the stolen proceeds belonged to
a business involved in interstate commerce. Co-conspirator Brian
Raineri testified, indicating that he had discussions with Flynn
on how to rob night depositories, and co-conspirator Richard
Ferguson testified that Kenney later admitted to robbing a couple
of night depositories.
-29-
McQueeney indicated that he dropped Kenney off with a white
painter's mask and a gun near the scene of the robbery; the
employee testified that her assailant was wearing a white
carpenter's mask and carrying a gun similar to Government Exhibit
42. McQueeney also supplied evidence of conspiracy, testifying
that Flynn watched as Kenney tried on the mask, directed
McQueeney to drop Kenney off near First National Bank, and argued
with Kenney the following morning for targeting women with only
$600. Kenney later admitted to co-conspirator Ferguson that he
robbed some night depositories. While the evidence may not
compel guilty verdicts, this Court finds that it is of a
______
sufficient quantum that a reasonable trier of fact could find
_______
Appellants guilty beyond a reasonable doubt on the counts
involving the Dress Barn robbery. Hence, the Court affirms
Flynn's and Kenney's convictions on Counts 10, 11, and 22.
C. The Court's Denial of Flynn's and Kenney's
C. The Court's Denial of Flynn's and Kenney's
_______________________________________________
Motions to Set Aside Verdicts and to Grant New Trial
Motions to Set Aside Verdicts and to Grant New Trial
____________________________________________________
Appellants Flynn and Kenney argue that the district
court abused its discretion by denying their motions to set aside
verdicts and to grant a new trial, arguing that joinder of
charges against them resulted in prejudice, pursuant to Fed. R.
Crim. P. 14.15 Appellants argue that joinder was initially
____________________
15 Fed. R. Crim. P. 14 provides in relevant part:
If it appears that a defendant or the
government is prejudiced by a joinder of
offenses or of defendants in an
indictment or information or by such
joinder for trial together, the court may
order an election of separate trials of
-30-
proper but became prejudicial when the district court dismissed
the RICO counts at the close of the Government's case for failure
to establish a pattern of racketeering activity. Assuming that
initial joinder was proper under Fed. R. Crim. P. 8(b),16 the
district court has considerable latitude in treating motions
based on prejudicial joinder under Rule 14, and "its resolution
of severance questions will be overturned only if that wide
discretion is plainly abused." United States v. Natanel, 938
_________________________
F.2d 302, 308 (1st Cir. 1991), cert. denied, 112 S. Ct. 986
_____ ______
(1992); see also United States v. McLaughlin, 957 F.2d 12, 18
___ ____ ____________________________
____________________
counts, grant a severance of defendants
or provide whatever other relief justice
requires . . . .
16 Because Appellants do not argue that initial joinder was
improper and did not move for severance of offenses or defendants
before trial, their appeal does not implicate Fed. R. Crim. P.
8(b). See Appellant Kenney's Brief at 27 (stating that joinder
___
in the present case was proper at the commencement of trial).
Fed. R. Crim. P. 8(b) provides:
Joinder of Defendants. Two or more
Joinder of Defendants.
defendants may be charged in the same
indictment or information if they are
alleged to have participated in the same
act or transaction or in the same series
of acts or transactions constituting an
offense or offenses. Such defendants may
be charged in one or more counts together
or separately and all of the defendants
need not be charged in each count.
The Court will note only that initial joinder is generally
held to be proper where, as here, the indictment includes RICO
counts that link all defendants to the conspiracy, United States
______________
v. Zannino, 895 F.2d 1, 16 (1st Cir. 1990), cert. denied, 494
__________ _____ ______
U.S. 1082 (1990), and "[embrace] all of the acts and transactions
upon which the other . . . counts [are] based." United States v.
________________
Boylan, 898 F.2d 230, 245 (1st Cir. 1990), cert. denied, 498 U.S.
______ _____ ______
849 (1990)(quoting United States v. Tashjian, 660 F.2d 829, 833
__________________________
(1st Cir.), cert. denied, 454 U.S. 1102 (1981)).
_____ ______
-31-
(1st Cir. 1992)("We review a trial court's denial of a severance
motion for abuse of discretion and reverse only if denial
deprived defendant of a fair trial, resulting in a miscarriage of
justice").
When severance has been refused, appellants shoulder
the burden of making a strong showing of prejudice that the
joinder of offenses or defendants served to deprive them of a
fair trial. Id; Natanel, 938 F.2d at 308 (citing United States
___ _______ _____________
v. Porter, 764 F.2d 1, 12 (1st Cir. 1985)). Appellants argue
_________
that prejudice resulted because the jury was exposed to certain
evidence that would otherwise have been inadmissible against them
without the RICO counts. They specifically point to testimony by
officials of the New Hampshire State Police who observed them on
numerous occasions surveilling armored trucks in preparation for
the First N.H. robbery. Appellants argue that this testimony
would not have been admitted but for the RICO counts and that it
prejudiced the jury in considering the remaining counts against
them. The admissibility of the surveillance testimony, however,
was not limited to the RICO counts, as Appellants argue, but was
relevant to Counts 3, 4, 5, 16, 17, 18, and 19, involving
conspiracy to commit bank robbery and other bank robbery charges.
Appellants also give no clear indication, other than conclusory
statements, of how this surveillance testimony was so material
and significant as to make a prejudicial finding likely on other
unrelated counts.
Appellants make a more general "spillover" argument,
-32-
asserting that evidence admitted at trial relating to the whole
series of robberies linked by the RICO counts made it impossible
for the jury to consider each defendant and each offense
separately. "There is always some prejudice in any trial where
more than one offense or offender are tried together -- but such
'garden variety' prejudice, in and of itself, will not suffice."
United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990).
_________________________
Here, the district court sought to minimize the possibility of
prejudice by giving limiting instructions in the course of trial
and instructing the jury at the beginning and end of the closing
charge to consider the evidence against each defendant separately
with respect to each count of the indictment. See nn. 11 & 12
___
supra. That the jury was able to follow these instructions is
_____
demonstrated by its selective verdict,17 which provides
"reasonably good assurance that no injurious spillover effect
occurred." Natanel, 938 F.2d at 308. The Court also notes that
_______
evidence at trial was presented in a compartmentalized fashion to
assist the jury in distinguishing between the various crimes and
defendants; i.e., the first fifteen days of trial covered the
____
First N.H. robbery while successive days treated each of the
other predicate acts in turn.
Finding no abuse of discretion, the Court affirms the
____________________
17 The jury found Appellants not guilty on Counts 8, 9 and 21,
involving the night deposit robbery of a restaurant employee, but
guilty on counts involving the five remaining robberies. Finding
Appellant Neal guilty of money laundering and accessory after the
fact, the jury found him not guilty of conspiracy to rob First
N.H.
-33-
trial court's denial of Appellants' motions to set aside the
verdicts and for a new trial.
IV. CHALLENGES RAISED SEPARATELY BY FLYNN
IV. CHALLENGES RAISED SEPARATELY BY FLYNN
__________________________________________
A. The Court's Denial of Motion for Continuance
A. The Court's Denial of Motion for Continuance
________________________________________________
Appellant Flynn challenges the court's denial of his
motion for continuance of trial to enable him to seek retained
counsel, filed on September 25, 1992, as well as the court's
refusal of his motion to reconsider, filed on the first day of
trial, October 5, 1992. This Court will review the denial of
Flynn's motion for abuse of discretion. United States v. Machor,
_______________________
879 F.2d 945, 952 (1st Cir. 1989), cert. denied, 493 U.S. 1081,
_____ ______
1094 (1990).
The record indicates that Flynn first requested, and
was granted, the right to seek retained counsel on May 28, 1992,
after withdrawing his motion to represent himself pro se. Flynn
___ __
failed to retain counsel in the time allotted and on June 18,
appeared before a magistrate judge in a hearing on the
Government's motion to have counsel appointed for him. Flynn
told the magistrate that he still desired to seek retained
counsel and mentioned the names of two possible lawyers. The
magistrate granted the Government's motion and appointed as
Flynn's counsel Attorney Lawrence Gillis, who entered his
appearance on July 6, 1992. This action by the court in no way
interfered with Flynn's continued efforts to retain outside
counsel.
On September 1, 1992, the district court granted
-34-
Flynn's motion for continuance of trial, giving him one deadline,
which lapsed, and extending it again until September 18 to enable
Flynn to retain private counsel.18 Five days after the
deadline, on September 23, Attorney Barry Wilson filed a motion
to enter his appearance as Flynn's counsel and, on September 25,
filed a motion to continue the October trial date until January
of 1993, to give him time to prepare for trial. The district
court denied the September 25 motion as well as a motion, filed
on the first day of trial, to reconsider its ruling, finding
that:
Flynn's maneuvers with respect to counsel
are such as to equate with a waiver of
his right to choose counsel. . . . The
court fully understands the difficulties
imposed on Attorney Gillis by Mr. Flynn's
refusal to date to cooperate with him,
but it behooves Mr. Flynn to now sit down
with his appointed counsel and to assist
him in the presentation of his defenses.
September 28, 1992, Order (Docket No. 187) at 3-4. Trial
continued as scheduled, beginning on October 5, 1992, except that
______ ____
Attorney Gillis withdrew and Attorney Wilson took over as Flynn's
retained counsel.
The Sixth Amendment guarantees a defendant the right to
assistance of counsel, which includes the right to counsel of
one's choice. United States v. Hallock, 941 F.2d 36, 44 (1st
_________________________
Cir. 1991). While the right to effective assistance is absolute,
____________________
18 Flynn's motion was based on an affidavit filed by Gillis
alleging a total breakdown in communication with his client
because Flynn refused to cooperate with him in preparing a
defense.
-35-
this Court has long held that a defendant's right to choose a
particular counsel must be weighed against administration-of-
justice concerns and "cannot be insisted upon in a manner that
will obstruct reasonable and orderly court procedure." United
______
States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied, 434
_________________ _____ ______
U.S. 986 (1977); see also Hallock, 941 F.2d at 44; Machor, 879
___ ____ _______ ______
F.2d at 952; Tuitt v. Fair, 822 F.2d 166 (1st Cir.), cert.
_______________ _____
denied, 484 U.S. 945 (1987).
______
In light of these factors, this Court does not find
that the district court abused its discretion in denying Flynn's
motion for continuance. In essence, Flynn had nearly four months
to secure private counsel -- from May 28, 1992, until September
18, 1992. The trial date was continued for one month at his
behest; yet he continually failed to meet deadlines set by the
court. Given these circumstances, the Court affirms the denial
of Flynn's belated September 25 motion for continuance and his
later motion to reconsider.19
B. The Court's Admission of Bank Employee's
B. The Court's Admission of Bank Employee's
____________________________________________
Testimony and Its Denial of Appellant's Motion
Testimony and Its Denial of Appellant's Motion
______________________________________________
for Judgment of Acquittal on Bank Robbery Counts
for Judgment of Acquittal on Bank Robbery Counts
________________________________________________
Appellant argues that the district court improperly
admitted the testimony of bank employee Debbie Haskins, who
testified with respect to First N.H.'s federally insured status
and its involvement in interstate commerce. Appellant also
challenges the sufficiency of the evidence in support of the
____________________
19 The Court notes that while Flynn's belated motion for
continuance was denied, Attorney Wilson still conducted his
representation at trial.
-36-
jury's guilty verdicts on the bank robbery counts.
Appellant first argues that Haskins' testimony should
not have been admitted because she lacked personal knowledge of
the bank's FDIC status or its involvement in interstate commerce
as required by Fed. R. Evid. 602 (witness may not testify to a
matter without evidence that she had "personal knowledge of the
matter"). In particular, Appellant argues that Haskins, who
worked as an insurance compliance specialist for First N.H., did
not commence her employment until a month after the robbery, so
her testimony was based on records that she was exposed to in the
course of her later employment and not on knowledge formed at the
time of the robbery.
Evidence is inadmissible under Rule 602 "only if in the
proper exercise of the trial court's discretion it finds that the
witness could not have actually perceived or observed that which
he testified to." Hallquist v. Local 276, Plumbers & Pipefitters
______________________________________________
Union, 843 F.2d 18, 24 (1st Cir. 1988). Personal knowledge can
_____
include "inferences and opinions, so long as they are grounded in
personal observation and experience." United States v. Doe, 960
____________________
F.2d 221, 223 (1st Cir. 1992). Haskins testified that her job
brought her into contact with records, including certificates
provided by the FDIC, which indicated that the Stratham, New
Hampshire branch of First N.H. was federally insured, although
she had not personally seen such a certificate posted at the
branch on the date of the robbery. She also testified that bank
records to which she was exposed indicated that the branch had
-37-
customers in Vermont and Massachusetts and a correspondent
banking account in Massachusetts. This Court finds that the
district court did not abuse its discretion in admitting Haskins'
testimony because it was limited to information that she actually
perceived or observed as an insurance compliance specialist and
did not attest to circumstances beyond her personal
knowledge.20
Appellant also argues that the guilty verdicts on the
bank robbery counts were not supported by a sufficiency of the
evidence with respect to the elements of FDIC insurance status
and involvement in interstate commerce.21 As the Government
points out, Appellant moved for judgment of acquittal on these
counts on the basis of other arguments and did not argue below
that dismissal should be granted on the above-cited grounds.
Consequently, Appellant has waived this argument on appeal unless
the bank robbery convictions are "clearly and grossly unjust."
United States v. L pez, 709 F.2d 742, 746 (1st Cir.), cert.
________________________ _____
____________________
20 Appellant's argument that Haskins' knowledge was not formed
on the basis of information that she possessed on the date of the
robbery may have diminished the value of her testimony, but such
an argument does not implicate Rule 602. "'The extent of a
witness' knowledge of matters about which he offers to testify
goes to the weight rather than the admissibility of the
testimony.'" Hallquist, 843 F.2d at 24 (quoting Nielson v.
_________ ___________
Armstrong Rubber Co., 570 F.2d 272, 277 (8th Cir. 1978)).
____________________
21 Proof beyond a reasonable doubt that the Federal Deposit
Insurance Corporation insured the deposits of First N.H. is an
essential element of the crimes alleged in Counts 3, 4, and 5,
regarding the robbery of First N.H. in violation of 18 U.S.C.
2113. Proof beyond a reasonable doubt that robbery of First
N.H. had some effect on interstate commerce is an essential
element of the Hobbs Act violations alleged in Counts 16, 17, and
18. 18 U.S.C. 1951.
-38-
denied, 464 U.S. 861 (1983).
______
Even under the less rigorous standard governing
sufficiency-of-the-evidence claims, however, we affirm the
convictions. The evidence, viewed in the light most favorable to
the Government, could have persuaded a rational trier of fact
beyond a reasonable doubt that First N.H. was FDIC-insured and
involved in interstate commerce.22 Hence, the district court's
denial of Flynn's motion for acquittal on the bank robbery counts
is affirmed.
C. The Court's Denial of Motion to Sever Count 19
C. The Court's Denial of Motion to Sever Count 19
__________________________________________________
Charging Possession of Firearm by Convicted Felon
Charging Possession of Firearm by Convicted Felon
_________________________________________________
Appellant challenges the district court's denial of his
motion to sever Count 19 as an abuse of discretion, arguing that
the inclusion of his prior felony history resulted in clear
prejudice and denied him a fair trial. Appellant moved for
severance under Fed. R. Crim P. 14, which provides, in part, that
if it appears a defendant may be prejudiced by joinder of
offenses, the court may "order an election of separate trials of
counts, grant a severance of defendants or provide whatever other
____________________
22 In addition to Haskins' testimony, the Government introduced
into evidence a certified copy of the records of the FDIC
establishing that after a diligent search of the agency's
records, no evidence was found to indicate that First N.H.'s
insured status was ever terminated on or before the date of the
September 9, 1991, robbery. Further, Haskins' testimony
regarding First N.H.'s interstate accounts was augmented by the
testimony of another bank employee, Anita Ramsdell, who was in
charge of opening new accounts, teller supervision, and
maintenance of the bank vault. According to Ramsdell, the bank
sold vault money to the Federal Reserve Bank of Boston and on the
morning of the robbery, the vault contained a large amount of
money that was about to be shipped there.
-39-
relief justice requires . . . . " Trial courts are granted
discretion under Rule 14 to take whatever steps are deemed
necessary to minimize prejudice; "[s]everance is only one
remedy -- and certainly the most extreme -- in the federal
courts' remedial arsenal." United States v. Daniels, 770 F.2d
_________________________
1111, 1120 (D.C. Cir. 1985).
Here the record indicates that in ruling on Flynn's
motion on the first day of trial, the court declined severance
but decided not to disclose the details of Flynn's prior
conviction(s) in reading Count 19 to the jury. Flynn's counsel
later indicated that he would stipulate to his client being a
convicted felon and stipulate that the court could instruct the
jury in that regard. In its final instructions to the jury, the
court indicated that the parties had stipulated to the fact of
the prior conviction(s), without detailing the nature of the
criminal acts at issue in them. The Court finds that the district
court did not abuse its discretion in deciding not to sever Count
19 and in opting instead to limit the jury's exposure to the
details of Flynn's prior criminal history.
D. Statements Made During Prosecutor's Closing Argument
D. Statements Made During Prosecutor's Closing Argument
________________________________________________________
Appellant asserts that the Government prosecutor made
improper comments during his closing argument in which he
allegedly injected his personal opinion and referred to facts
outside the record regarding the truthfulness of Government
witnesses. This Court has long held that a prosecutor may not
place the prestige of the government behind a witness by making
-40-
personal assurances about the witness' credibility nor indicate
that facts not before the jury support the testimony. See, e.g.,
___ ____
United States v. Martin, 815 F.2d 818, 821-22 (1st Cir. 1987),
________________________
cert. denied, 484 U.S. 825 (1987); United States v. Rosa, 705
_____ ______ ______________________
F.2d 1375, 1379-80 (1st Cir. 1983). Appellant specifically
points to the following comments to support his argument of
prosecutorial misconduct:
Comment 1: Much comment has been made
_________
about deals. It would seem to me that a
17-year stretch in prison isn't much of a
deal.
Comment 2: Believe me. Richard Ferguson
__________
remembers what he remembers. So does
Arthur Cosgro. So does Tom McQueeny. So
does Brian Raineri. So do all the other
witnesses in the case. Sometimes they
don't match with each other. Sometimes
they don't match with other people at the
offenses. And that's fine. They're
telling what they remember. These guys,
as somebody said, are not great abstract
thinkers. I think we can all agree to
that . . . . Which is it? . . . . Do we
know? No, we don't know. We can choose
to believe which of those is accurate or
who remembers better.
Comment 3: These people believe, rightly
__________
or wrongly that they might have had some
criminal exposure. Even if they did, I
think we can all agree its substantially
less than the individuals who are charged
with the crimes in this indictment.
Comment 2 was not the subject of contemporaneous
objection and will be treated first. Absent plain error, the
failure to object during the prosecutor's argument forecloses
appellate review. United States v. Morales-Cartagena, 987 F.2d
___________________________________
849, 854 (1st Cir. 1993)(stating that plain-error standard
-41-
requires reversal of a conviction only if a "miscarriage of
____ __
justice would otherwise result"). This Court does not find plain
error. Other than the phrase, "Believe me," which appears to be
an expression of personal opinion only if read out of the total
context, the prosecutor's comment does not improperly vouch for
the credibility of Government witnesses. The comment merely
points out that the witnesses, telling the story as they remember
it, have generated a number of inconsistencies in the record and
that it is up to jury to resolve these issues.23
The Court finds likewise that comment 1 falls within
permissible boundaries. When read in context, the phrase "it
seems to me" does not amount to improper vouching for the
credibility of a Government witness because the comment is
limited to the terms of the plea agreement. "It is not error to
inform a jury of the contents of a plea agreement, nor is it
improper for the government to call attention to a witness'
motivation for testifying." United States v. Dockray, 943 F.2d
________________________
152, 156 (1st Cir. 1991).24 Especially here, where the record
____________________
23 Even if a contemporaneous objection had been made, comment 2
still does not rise to error sufficient to warrant a new trial.
See, e.g., United States v. Rodr guez-Estrada, 877 F.2d 153 (1st
___ ____ __________________________________
Cir. 1989)(where prosecutor explicitly assured jury that witness
would tell truth, error not reversible because it was
counterbalanced by other statements of prosecutor telling jurors
there was conflicting evidence on issues testified to by witness
and reminded jury that they should determine issues of demeanor
and credibility).
24 Appellant suggests that this comment misrepresented the plea
agreement of Arthur Cosgro, who testified that the Government
promised to recommend eight years at sentencing. This Court
agrees
with the Government, however, that the comment actually referred
-42-
indicates that defense counsel focused much of their cross-
examination and closing arguments on the benefits to be bestowed
on cooperating co-conspirators, the comment that "a seventeen-
year stretch in prison isn't much of a deal" does not amount to
prosecutorial misconduct. See Martin, 815 F.2d at 822 (finding
___ ______
no prosecutorial misconduct where prosecutor told jury that each
of the Government witnesses expects to go to jail; "[t]he
Government is going to recommend substantial jail, the maximum
penalty is five years, and even with good time off, five years,
four years in a Federal Penitentiary, that's no walk in the
park").
Appellant argues that in making comment 3, the
prosecutor improperly interjected his personal opinion that
Appellant was guilty and asserted that all other trial witnesses
agreed with the Government's assessment. Appellant's
interpretation of comment 3 is far-fetched. The most this Court
can glean from the comment is that (1) the Government witnesses
were motivated to testify, at least in part, because of the
prospect of criminal prosecution and that (2) their involvement
in the conspiracy, as disclosed by their testimony, when compared
with the conduct alleged against defendants in the indictment,
indicated that the witnesses were less culpable than defendants
in the overall conspiracy. This comment is proper argumentation
based on the evidence before the jury and does not amount to
____________________
to the plea agreement of Richard Ferguson, who testified that the
prosecution would recommend seventeen years.
-43-
improper vouching for the credibility of witnesses or a personal
opinion as to the guilt of the defendants.
Finding no evidence of prosecutorial misconduct, we
need not reach the issue of whether the comments in question were
likely to have prejudiced Appellant by altering the outcome of
the case. United States v. Rodr guez-Estrada, 877 F.2d 153, 159
__________________________________
(1st Cir. 1989).
V. CHALLENGES RAISED SEPARATELY BY KENNEY
V. CHALLENGES RAISED SEPARATELY BY KENNEY
__________________________________________
A. The Court's Denial of Motion to Dismiss
A. The Court's Denial of Motion to Dismiss
___________________________________________
Indictment Under Interstate Agreement on Detainers
Indictment Under Interstate Agreement on Detainers
__________________________________________________
Appellant Kenney argues that the district court erred
in refusing to dismiss his indictment under the Interstate
Agreement on Detainers Act, 2, Art. IV, 18 U.S.C. App. ("IAD"
or "Act"). The IAD establishes procedures for transfer of
prisoners incarcerated in one jurisdiction to the temporary
custody of another jurisdiction where criminal charges are
pending. It
sets time limits for trying prisoners transferred under its
provisions, with the purpose of encouraging the "expeditious and
orderly disposition" of outstanding charges. IAD, Art. I.
Kenney argues that the indictment should have been
dismissed based on the following violations of the IAD:
Violation of Art. IV(a), which provides
________________________
for a thirty-day period "after receipt by
the appropriate authorities before the
request [for temporary custody] be
honored, within which period the Governor
of the sending State may disapprove the
request for temporary custody or
availability, either upon his own motion
or upon motion of the prisoner";
-44-
Violation of Art. IV(d), which indicates
_______________________
that the Act does not deprive a prisoner
of any right to contest the legality of
his extradition to the receiving state;
Violation of Art. IV(c), which provides
________________________
that "trial shall be commenced within one
hundred and twenty days of the arrival of
the prisoner in the receiving State, but
for good cause shown in open court, the
prisoner or his counsel being present,
the court having jurisdiction of the
matter may grant any necessary or
reasonable continuance."
Kenney failed to raise Articles IV(a) and IV(d) as a basis for
his motion to dismiss below; hence, he has waived those arguments
pursuant to Fed. R. Crim P. 12(b) and 12(f). We have considered
whether these claims constitute plain error and have concluded
that they do not.
Kenney did raise Art. IV(c) on several occasions as a
basis for objecting to motions for continuances filed by co-
defendants and ultimately in a motion to dismiss his indictment,
arguing that the court failed to try him within 120 days of his
appearance in the jurisdiction of New Hampshire. Kenney was
brought to the District of New Hampshire on May 7, 1992, and
trial, pursuant to a strict application of the 120-day deadline,
should have commenced on September 8, 1992.25
In denying Kenney's motion to dismiss, the judge
indicated that continuing the trial until October 5 did not
violate the 120-day provision because the clock had been tolled
for twenty-eight days, from August 4 through August 31, 1992,
____________________
25 September 5, 1992, was exactly 120 days, but that date fell
on a holiday weekend.
-45-
while the magistrate judge resolved pretrial motions filed by
Kenney. The judge also ruled that delays attributable to the
disposition of motions filed by other co-defendants constituted
"good cause" under the IAD and were also excluded from the
computation.
This Court has recently suggested that delay caused by
a court's resolution of pending co-defendant motions may qualify
___
as excludible time under Article IV(c) of the IAD which states,
"for good cause shown in open court . . . the court . . . may
grant any necessary or reasonable continuance." Whiting v. U.S.,
_______________
No. 92-1182, slip op. at 29-30 (1st Cir. July 6, 1994). However,
the facts of this case allow us to affirm the court's denial of
Kenney's motion to dismiss on a narrower ground; i.e., that delay
____
attributable to the disposition of motions filed by the
defendant, himself, is excludible from the 120-day computation.
Art. VI(a) of the IAD provides that the 120-day clock
"shall be tolled whenever and for as long as the prisoner is
unable to stand trial." This Court has generally interpreted
this provision to allow for tolling during the time that it takes
for the court to resolve matters raised by the defendant who is
claiming rights under the IAD. Whiting, No. 92-1182, slip op. at
_______
27-28; United States v. Walker, 924 F.2d 1, 5-6 (1st Cir. 1991),
_______________________
United States v. Taylor, 861 F.2d 316, 321-22 (1st Cir. 1988).
________________________
We have held out the possibility, however, that where a defendant
timely advises the court that he or she is claiming protections
under the IAD and the court takes more time than is necessary to
___
-46-
resolve the defendant's pretrial motions, then the delay may not
be fully excluded from the 120-day clock.
In this case, Kenney first informed the court on June 5
that he refused to waive any rights under the IAD in response to
a Government motion relating to bail. On August 4, he filed
seven pretrial motions but did not refer to his reliance on the
IAD to notify the magistrate that an expedited decision was,
perhaps, warranted. The Government submitted responses on August
14, and the magistrate ruled on the motions on August 31. Kenney
informed the court that he was specifically relying on the 120-
day trial provision on September 1, when he filed objections to
motions by co-defendants seeking a continuance of the trial date.
In these circumstances, the Court finds that a 28-day
delay in resolving defendant's own motions was not unreasonable
and that after excluding this delay, trial was properly commenced
within the 120-day deadline.26 Accordingly, we affirm the
district court's denial of Kenney's motion to dismiss his
indictment.
B. The Court's Admission into Evidence of Semi-Automatic Handgun
B. The Court's Admission into Evidence of Semi-Automatic Handgun
_________________________________________________________________
Appellant Kenney challenges the court's admission into
evidence of Government exhibit 42, a .32 caliber semi-automatic
handgun. Specifically, Kenney argues that the Government failed
to introduce sufficient evidence that (1) the gun had not been
____________________
26 According to this Court's calculations, the 120-day period,
excluding the twenty-eight-day delay occasioned by defendant, ran
on October 3, 1992, which was a Saturday. Trial was properly
commenced on the first day of the business week, October 5, 1992.
-47-
altered subsequent to the crime and (2) the gun was the actual
gun used in the crimes in question. We need not belabor the
point because we find that the district court did not abuse its
discretion in admitting the handgun.
Federal Rule of Evidence 901(a) requires the trial
court to determine if there is a "reasonable probability" that
the evidence is what it is purported to be. Evidence before the
court indicated that the gun had been stored in a garage for
thirteen days. Even though the garage was used as a storage
facility by several people, testimony at trial indicated that a
co-conspirator's relative retrieved the handgun from the same
place that it had been left by Kenney and Flynn. Considering the
nature of the handgun, circumstances surrounding its
preservation, and the scant likelihood of intermeddlers, the
judge properly determined that it was in substantially the same
condition.
The trial court also did not abuse its discretion in
determining that there was a reasonable probability that the
handgun was the same gun used in the robberies. Three co-
conspirators identified the handgun, and a co-conspirator's
relative identified the case in which the handgun was found and
testified that she heard Flynn tell Kenney to hide the case in
the garage. In addition, testimony by witnesses to the robberies
described a gun matching the Government's exhibit.
-48-
VI. SEPARATE CHALLENGES RAISED BY APPELLANT NEAL
VI. SEPARATE CHALLENGES RAISED BY APPELLANT NEAL
_________________________________________________
A. Sufficiency of Evidence to Support Guilty Verdict
A. Sufficiency of Evidence to Support Guilty Verdict
______________________________________________________
on Counts Alleging Accessory After The Fact and Money Laundering
on Counts Alleging Accessory After The Fact and Money Laundering
________________________________________________________________
Appellant Neal challenges the sufficiency of the
evidence in support of the jury's guilty verdicts on Counts 30
and 31.27 This Court finds that the evidence, viewed in the
light most favorable to the Government, together with all
legitimate inferences, was of such a quantum that a reasonable
_______
trier of fact could find Neal guilty beyond a reasonable doubt on
both counts.28 United States v. Browne, 891 F.2d 389, 393 (1st
________________________
____________________
27 Count 30, alleging accessory after the fact in violation of
title 18 U.S.C. 3, requires proof beyond a reasonable doubt
that a defendant (1) knew an offense had been committed against
the United States; and (2) "receives, relieves, comforts or
assists the offender in order to hinder or prevent his
apprehension, trial or punishment . . . ."
Count 31, alleging money laundering in violation of title 18
U.S.C. 1956(a)(1)(B)(i), requires proof beyond a reasonable
doubt that a defendant knew that:
the property involved in a financial
transaction represents the proceeds of
some form of unlawful activity [and]
conducts such a financial transaction
which in fact involves the proceeds of
specified unlawful activity, knowing that
the transaction is designed in whole or
in part, to conceal or disguise the
nature, the location, the source, the
ownership, or the control of the proceeds
of specified unlawful activity . . . .
28 The evidence consisted, in part, of testimony indicating that
Neal was at his home on several occasions when co-conspirators
met to discuss the bank robbery and to make final preparations
for committing the crime. The co-conspirators took refuge in
Neal's home immediately following the robbery with a reasonable
inference from the testimony being that Neal opened his cellar
door to let them in. Neal followed Flynn's instructions to "go
out and get the box of money" out of the car, with the box also
containing the gun used in the robbery. Tr. (October 14, 1992)
-49-
Cir. 1989).
B. Court's Denial of Motion for
B. Court's Denial of Motion for
________________________________
Downward Adjustment of Base Offense Level
Downward Adjustment of Base Offense Level
_________________________________________
Neal challenges the district court's denial of his
motion for a downward adjustment of his Base Offense Level
pursuant to section 3B1.2(a) of the Sentencing Guidelines.
U.S.S.G. 3B1.2(a). That section of the Guidelines provides for
a four-level reduction where the court determines that a
defendant was a minimal participant in the offense for which he
was convicted and is intended to cover only those defendants who
are clearly the least culpable of those involved in the criminal
conduct of the group. See U.S.S.G. 3B1.2(a), comment nn. 1 &
___
2. Absent a mistake of law, a district court's finding as to
whether a defendant was a minor or minimal participant will be
reversed only if clearly erroneous. United States v. Brum, 948
______________________
F.2d 817 (1st Cir. 1991).
Here, the court's determination was not clearly
erroneous and we affirm. Neal mistakenly refers to the overall
conspiracy encompassing five robberies as the benchmark for
arguing that he played a minimal role. But section 3B1.2 focuses
on the role of a defendant with respect to the offense(s) of
__
____________________
at 40. Neal was given between $2000-$5000 as his split from the
proceeds of the robbery. Flynn later furnished him with
additional money from the robbery to pay off hundreds of dollars
in parking tickets and to purchase a car in his name to be used
by Flynn and Kenney to drive to Arizona and eventually to
California. A friend of Neal's testified that he told her he had
won the money used to purchase the car by betting on football
games and had purchased the car with the intention of letting a
friend use it for a week or so.
-50-
which he was convicted. Here, Neal was convicted of money
________________________
laundering and being an accessory after the fact. He was the
only defendant indicted and convicted on the count of being an
accessory after the fact and was indicted and convicted jointly
with Flynn on the money laundering count. The facts support the
court's determination that Neal did not play a minimal role with
respect to the conduct alleged in either count.
VII. CONCLUSION
VII. CONCLUSION
________________
Accordingly, the Court affirms the district court's
rulings on all issues raised on appeal except the issue raised by
______
Appellant Flynn regarding the court's denial of various motions
for production of witness statements under the Jencks Act and the
issue raised by Appellant Neal regarding the court's order of
restitution against him. We will retain appellate jurisdiction
to enable us to review the augmented record and the court's
subsequent determinations on the Jencks Act and restitution
claims.
With respect to Appellant Flynn's challenge, we remand
the case for an evidentiary hearing to determine whether
statements were improperly withheld from him during trial in
violation of the Jencks Act and, if so, whether nondisclosure of
such statements constituted harmless error. With respect to
Appellant Neal's challenge, we remand the case so that the court
may determine whether the full amount of damages suffered by
First N.H. was caused by the criminal conduct underlying
Appellant's convictions for money laundering and being an
-51-
accessory after the fact. The court should report its findings
and determinations back to us within ninety (90) days. We will
retain appellate jurisdiction for the time being.
It is so ordered.
________________
-52-
APPENDIX I: LISTING OF JENCKS ACT RULINGS
APPENDIX I: LISTING OF JENCKS ACT RULINGS
__________________________________________
TO BE RECONSIDERED ON REMAND
TO BE RECONSIDERED ON REMAND
____________________________
Below find examples where the court indicated that it
was denying Jencks Act requests on the ground that there was no
showing that the witness had seen and adopted the statements
pursuant to 18 U.S.C. 3500 (e)(1). The court failed to make
the further inquiry, pursuant to 18 U.S.C. 3500 (e)(2), of
whether the notes or interview reports of government agents,
requested by counsel, contained statements that were
substantially verbatim recitals of a witness' prior statements.
Rulings made pursuant to this erroneous standard include the
following:
(1) After the Government conducted direct examination on
Anita Ramsdell, a teller at First N.H., Appellant's
counsel requested all Jencks material on the witness.
The court indicated:
I looked at it and it's not Jencks
material. . . . But I can't really rule on it
at this point until somebody asks her the
question if she's ever seen it.
Tr. (October 9, 1992) at 6. Cross-examination by
Appellant's counsel indicated that an FBI agent took
notes for a half hour to forty-five minutes while the
witness was being questioned by a detective from the
Stratham police department but she further testified
that she never saw the notes. Id. at 34-37. It is
___
presumably on this basis, that witness Anita Ramsdell
never saw or adopted the notes, that the court denied
counsel's Jencks request.
(2) While Appellant's counsel was conducting cross-
examination upon Richard Ferguson, a co-conspirator who
pled guilty and cooperated with the Government,
Ferguson testified that he met with Government
attorneys Patrick Walsh and Robert Veiga and someone
from the FBI on at least two different occasions and
that Walsh was probably taking notes. Counsel asked
for a sidebar:
-53-
Counsel: There are four to six hours of
statements that someone took notes on. . . .
I would suggest that there must be some
Jencks material . . . .
Court: So far I can't agree with you,
counsel, but your objection is noted.
Tr. (October 14, 1992) at 140.
On further cross-examination of Ferguson, he testified
that Government attorney Walsh went over the same
things with him in the second interview that were
covered in the first interview. Counsel again asked
for a sidebar requesting that the court order the
Government to turn over materials from the first
interview based on the witness' testimony that he went
over these materials with the Government attorney:
Government: Your Honor, it is not. I mean
all he said so far is that -- as I remember
his testimony -- is that he went over the
same things in each interview.
Court: That is my understanding, but the
objection of the defense is noted.
Counsel: Your Honor, wait a minute.
Unfortunately I must admit I don't understand
what's going on here, but I am trying to
figure it out. Am I to understand that at
some point is work product being interposed
here for the basis of why we are not getting
these materials?
. . . .
Counsel: The reason is that you have been
given documents which you have reviewed, and
within those documents somehow he has never
adopted them, so that's why we don't get
them?
Court: The record before me is that he has
never adopted those documents.
. . . .
Court: If I am wrong I will be reversed.
Your objection is noted.
. . . .
Counsel: I want the record to reflect that
in my opinion what I now understand is that
this is a very clever manipulation of the
rules by the United States Government in the
District of New Hampshire to avoid ever
-54-
giving Jencks material, because what we do is
if we never ask the witness to adopt it, that
if there is no steno present, we can clearly
say there is not Jencks material . . . .
Tr. (October 14, 1992) at 152-53.
(3) The court denied production of Jencks material on
witness Linda Sherouse who worked at the Dress Barn
retail store and was victim of a night deposit robbery.
When Sherouse was testifying on direct examination with
respect to the gun used by the robber, counsel asked
for a side bar:
Counsel: Now I'd like to know where her
Jencks material is. Where's her statements?
Where's a description of this? Where's a
prior statement of this or why hasn't she
been shown this?
Government: She gave a statement at the time
of the incident to the local authorities,
which was Hampton Police Department I guess.
But there has been no Jencks material with
respect to that.
. . . .
Court: Why don't you give him the statement
she made to the Hampton cops.
Government: She hasn't reviewed it. She
hasn't reviewed it. It's not Jencks.
Court: Can I review it?
Government: Sure, certainly.
. . . .
Court: For the record, I have reviewed them
and I don't think there's either Jencks or
Brady material in them.
Tr. (October 27, 1992 -- Afternoon session) at 86-88.
(4) Other examples where the court may have used an
erroneous legal ground in denying Jencks requests
include a request for Jencks material on Douglas
Scamman. Scamman is a dairy farmer who identified
Appellant Flynn in court as one of several men whom he
observed on various occasions loitering near a field
that was allegedly used by the armed robbers to reach
and escape from First N.H. Counsel asked the court to
order production of Jencks or Brady material with
respect to statements made by Scamman that might be
-55-
included in a report filed by a Sergeant Forbes. The
court denied the request. Tr. (October 19, 1992) at
171-73.
The court also denied a Jencks Act request for
statements made by co-conspirator Arthur Cosgro who
cooperated with the Government. Counsel indicated that
he had been given no materials that would shed light on
testimony by Cosgro with respect to a particular
conversation that he had with Appellant Flynn. Counsel
questioned whether the basis of the statement should
have been disclosed in his Jencks Act request. Tr.
(October 20, 1992) at 73-77.
The court denied Jencks Act requests on prior
statements contained in reports of interviews with co-
conspirators Thomas McQueeney and Brian Raineri, both
of whom cooperated with the Government. It is unclear
whether an erroneous legal ground was used in these
denials. Tr. (October 28, 1992) at 20 and Tr.
(November 3, 1992) at 219-20.
-56-