USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 95-2031

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT M. JOOST,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,
____________________
and Cummings,* Circuit Judge.
_____________

____________________

Robert Joost on brief pro se.

____________
Kenneth P. Madden, Assistant
_________________

United States Attorney,

Whitehouse, United States Attorney, on brief for appellee.

__________ ______________________

____________________

August 7, 1996
____________________

and Shel
____

____________________

*Of the Seventh Circuit, sitting by designation.

COFFIN, Senior Circuit Judge.

_____________________

Defendant Robert

Joost was

convicted by a jury

of conspiracy to obstruct, delay

commerce by robbery of gold from an armored

18 U.S.C.

1951 (the Hobbs Act).1

alleging a

host of errors.

and affect

car, in violation of

He filed this appeal pro se,

___ __

Finding none of them

to affect the

integrity of the conviction, we affirm.2

FACTUAL BACKGROUND
FACTUAL BACKGROUND

In March 1994, an

two undercover

informant, Tracy, introduced defendant to

Rhode Island detectives, DelPrete

who were investigating

the manufacture

and O'Donnell,

of counterfeit

Foxwoods

Casino (Connecticut) slot machine tokens by defendant and others.

During the ensuing months, defendant supplied the detectives with

many such tokens,

which the

exchange for cash at the

detectives said they

were able

cashier's cage through a cousin of

to

one

of them.

On April 24,

him in robbing a

to

New York.

job

and had

He

1994, defendant asked

the detectives to

Meehan armored car that regularly

said he had earlier

made plans that

join

carried gold

assembled a gang for this

he now

sought to

reactivate.

In

____________________

The same

jury was

unable to reach

a verdict on

a co-

defendant, Grelle, who later pled guilty.

Defendant also was

His conviction for

being a felon in possession

violation of 18 U.S.C.
issued simultaneously
erroneous refusal to
States v.
______
indictment
violation
prejudice.

Joost,
_____

of a firearm, in

922(g), is being vacated in

a decision

with this one because of the trial court's

give an instruction on

No. 95-2032

alleging
of 18

charged with two additional offenses.

interstate

U.S.C.

(1st

Cir. July

theft

371 and

entrapment.

and

487, was

United
______

xx, 1996).

An

counterfeiting,

in

dismissed without

-2-

subsequent conversations

had

changed its

vehicle from

defendant, Grelle,

to carry out

were

in May defendant said

to

and the two detectives

a robbery

intercepted by

a truck

of a warehouse

a prearranged

that the company

a van.

On

May 28,

drove to Pennsylvania

or tractor/trailer,

investigative stop

but

in which

police confiscated burglar tools supplied by defendant.

Further talk about the

Meehan job led to a

surveillance in

woods near the

Defendant had

gold, and that

guards

armored car facility on the night

said that the vehicle carried

Leach & Garner

would arrive

at about

up to $6 million in

was one customer.

3:00 a.m.,

two of his team rushing the

alert

them to the

would

be seized,

approach of

and shot

He said

that one

first for the vehicle and another would follow.

had

of June 29-30.

that

would leave

Defendant's plan

first guard while a third would

the second

guard, both

if necessary with

of whom

a silencer.

The

robbery aborted when the guards failed to appear.

Executives of

both Leach

the pick-up time (between 4:30

shipment (averaging

& Garner and

Meehan corroborated

and 5:30 p.m.), the value

$5 million), overnight

storage at

of the

Meehan's

Woonsocket facility, the arrival of two guards at 3:00 a.m.,

and

the

change in

testified that

April 1994

he

had

from

a truck

gotten his

to a

information

van.

from

Defendant

prison

roommate, used them in a novel he was writing, and brought up the

armored

car

project in

order to

sustain

detectives until he, defendant, could meet

-3-

the interest

of the

and establish his own

connection

with the "cousin" in the casino's cashier's cage.

He

had never intended to follow through on an actual robbery.

Insofar as

additional facts

may be relevant

on particular

issues, they will be incorporated into the following discussion.

DISCUSSION
DISCUSSION

Defendant represented

of

the

requested

resumes

government's

standby

himself at trial

case;

after

counsel to

self-representation,

the

take over.

and

during presentation

government

In this

has briefed

rested,

he

appeal, he

sixteen

issues.

While some merit more discussion than others, we shall follow the

sequence

in

which

both

defendant

presented their positions.

1. "Other Acts" Cross Examination.

______________________________

and

the

government

have

Defendant's

reiterated

basic theme,

his

in

his

opening

and

in his testimony, was that he did not engage in armed

robberies, that he was

on

introduced

fully aware of the heavy

a convicted felon found in

many discussions

with

their interest

possession of a firearm, and that

the detectives

future criminal projects were

penalty imposed

concerning past

and

fanciful tales designed to sustain

until he could

establish his own

modus operandi

with the casino's cashier.

The government sought

intent

to

rob

by

asking

to rebut defendant's claim of lack of

O'Donnell

about

the

conversations

defendant had had with the detectives concerning various criminal

ventures.

questioning,

On

objection,

the

deeming prejudice

court

to

refused

to

allow

outweigh relevance

at

such

that

-4-

point, but noting that

the ruling was "subject to

is going to come out."

Defendant subsequently took the stand and

testified at length about his

whatever else

lack of intent to rob the

armored

car.

When

the government

proposed

to cross

examine

defendant

about his various proposals to the detectives, the court deferred

ruling and further questioning pending resolution of the question

whether, if

defendant invoked

testimony

should be

satisfied

that

collateral

stricken.

defendant's

matters would

therefore

allowed

the

thefts from a

The

taking

government

the

Fifth

his prior

to

ask

of

became

on

testimony.

It

twenty-three

conversations or actions

delivery

his

Amendment

some

UPS van, an American

and

all of

court subsequently

not affect

questions about defendant's

proposed

the Fifth Amendment,

concerning

Legion hall, and a

Pennsylvania

warehouse,

firearm

to

the

detectives.

Defendant, in the presence of the jury, invoked the

Fifth Amendment as to each question.3

He

now makes

court improperly

two arguments.

First,

he asserts

that the

failed to balance

prejudice against relevance,

although he undercuts this argument

by observing, "At best, this

`evidence'

court

was merely cumulative."

was fully aware of

We think it

its responsibilities.

clear that the

It earlier had

____________________

In defendant's subsequent prosecution for being a felon-

in-possession
entrapment

relied

conversations
fiction,

of a

firearm, see
___
on

and actions,

devised

to induce

full

supra at
_____
disclosure

which he
the

dollars-for-tokens support.

-5-

n.2, his
of

all

characterized as

detectives

defense of
of

these

fanciful

to continue

their

rejected the proffered line of questioning and permitted it

after defendant

testified extensively about his

only

lack of intent.

While, as always, explicit findings would have avoided any issue,

we do not deem this an abuse of discretion. See

___

United States v.
_____________

De La Cruz, 902 F.2d 121, 123 (1st Cir. 1990).

__________

Defendant's

second

evidence" or responses

the prosecutor.

was

flying blind

reason.

argument is

that

from him backing

there

was no

"real

up the insinuations

of

But this is not a situation where the prosecutor

and

asking questions

Some of the subject

to rob the warehouse

without any

matter -- the trip to

-- was already in evidence; and

legitimate

Pennsylvania

both sides

were fully aware that most of the relevant conversations had been

taped.

The government's attempt

to elicit the same information

from its witness

option

had been

foreclosed.

of convincing the jury

Defendant,

of his "version

who had

of the facts and

his reliability as a witness, [or] not to testify at all

the

[,] . .

cannot reasonably claim that the Fifth Amendment gives him not

only this choice but, if

he elects to testify, an

immunity from

cross-examination on the matters he has himself put in

dispute."

Brown v. United States, 356 U.S. 148, 155-56 (1958).

_____
_____________

Moreover,

this objection

was

not

effectively

raised

at

trial. Only two of the twenty-three questions were objected to on

the

ground of

"lack

of evidence."

Both of

these

concerned

whether defendant had looked at the American Legion building, but

other questions

had been asked without

plan to rob that building.

objection concerning the

-6-

2.

Rulings admitting evidence.

__________________________

a.

O'Donnell

testified

about

conversation

with

codefendant Grelle, in which Grelle told of his son's involvement

in an armored car robbery.

The testimony was promptly struck and

a cautionary instruction given.

defendant moved for a mistrial.

After a recess both

Grelle and

The linkage between Grelle's son

and

defendant is

tenuous

and remote.

This is

not

mistrial

material.

b. The informant Tracy at

reason

one point testified that one

why he did not tell defendant that O'Donnell and DelPrete

were really state

objection

troopers was concern for

was overruled.

reply in direct

But

his own safety.

earlier Tracy had

examination by defendant.

An

given the same

Moreover, this

adds

nothing to defendant's own talk about being prepared to shoot the

armored car guards.

c.

convicted

The

of a

Objection to the

saying,

If error, it was harmless.

government

conspiracy to

asked

defendant if

violate

civil rights

question was overruled.

"That's not

true. It

was by

he

had

been

by murder.

Defendant answered by

death resulting."

Then,

after defendant repeated that

to violate the civil

prosecutor

Defendant

the conviction was for "conspiracy

rights of a citizen, death

interjected, "By

killing;

answered, "Well, yes.

conspiracy

There was

resulting," the

by

killing?"

a death resulting,"

just before objection was made and overruled.

49

reading of United States v. Guillette, 547 F.2d 743, 748_____________

_________

(2d Cir.

1976),

reveals that

-7-

prospective witness

in

prosecution against this defendant and another had been killed by

bomb activated

Defendant

when

argued that it

booby trap aimed at

for

opening the

had been installed by

from testifying.

to charge that

exonerate defendant.

defendants "would

criminal

The court,

efforts to

house.

the victim as a

were searching

found true, would

The Second Circuit agreed, holding that the

still

-- was

his

The Connecticut trial

such a fact, if

be considered

causation if the immediate cause of

booby trap

door of

him and his codefendant, who

him to prevent him

court refused

front

in

the chain

in discussing another

murder of LaPolla [the victim]."

legal

death -- setting a bomb as a

foreseeable protective

locate and

of

dissuade him

issue, even

reaction to

their

from testifying."

referred to

"the

Id. at 755. The questions asked

__

did not mischaracterize the conviction in any significant way.

Defendant

presents four

either the objections

other

issues of

were sustained or

this nature

no objection was

but

made;

all are insubstantial.

3.

From

Limiting examination and refusing offer of proof.

________________________________________________

two

days

of

his

cross-examination

of

O'Donnell,

spanning 174 pages of transcript, defendant distills two asserted

errors.

One

by

court

the

rises out of a specific limitation on further cross

that

prevented

O'Donnell's misreading of a

might also have misread

defendant

from

inquiring

telephone number -- to show

a gesture defendant had

obviously within the discretion of the court.

made.

into

that he

This

is

-8-

The

second was merely a

(instead of two), and

defendant wished to

final limitation of

one more hour

subsequent 20 and 5 minute warnings.

make an

"offer of proof"

of the

When

remaining

questioning he wished to do (which would have centered on missing

or

how

defective tapes), the

court refused.

We cannot contemplate

such actions, after two days of cross examining one witness,

could be held an abuse of discretion.

A final

from

ruling preventing defendant

telling about another armored truck fantasy he had told the

detectives,

were

asserted error was the

to prove he was

quite enough

of

just a storyteller.

these to

allow

There already

defendant to

argue

his

version.

4.

Directing court reporter to read her notes of tape.

__________________________________________________

After the jury reported

was

inaudible, the court told

Then, following a

ordered

the

the jury to

subsequent request

the court reporter to

recording.

to the court that a

After

objected, saying that he

make another effort.

from the

read her notes

she concluded,

tape recording

jury, the

court

made earlier from

counsel

for

had been comparing what was

defendant

being read

with

the

transcript

of

the

tape,

and

found

some

misidentifications.

He mentioned that at one point

the reporter

attributed

the detectives'

one

some of

statements to

or both

defendants.

It is of course the case that the tapes, not the transcript,

constitute evidence.

(1st Cir.

1979).

United States v. Richman, 600 F.2d 286, 295

_____________
_______

But it is within a judge's discretion to allow

-9-

reporter to read back testimony, United States v. Akitoye, 923

_____________
_______

F.2d

221, 226 (1st Cir. 1991), and

apply

here.

O'Donnell

In

had

conversations

any event, we see

testified

no possibility of prejudice.

extensively

on the evening of

tape recording.

such principle would seem to

Defendant

about

June 29-30, the

the

events

and

subject of the

has pointed to no discrepancy

in the

courtreporter's reading of her notes that could have damaged him.

5.

Dismissal of two jurors.

_______________________

During

became

ill.

the trial,

When

it

on April

was

7, 1995,

apparent that

defendant's counsel

the

trial

would be

suspended for an additional week, the court was informed that two

jurors had prepaid for vacations that were scheduled to begin the

week when trial would resume.

all

The court announced to counsel for

parties in a telephone conference call that the jurors would

be excused.

There was

no objection.

Defendant claims

not to

have known of this action until shortly before trial resumed.

Defendant first

legitimate reason to

argues that a

excuse a juror, under Fed. R.

Under the circumstances, this was

the court, United States v.

______________

1987),

and

in any

scheduled vacation is

Crim. P. 24.

within the sound discretion of

Corsino, 812 F.2d

_______

event this

not a

issue was

26,33 (1st

not presented

Cir.

to the

court.

A second argument is that defendant himself was not involved

in the telephone conference.

While a party must

be represented

by

counsel in such conferences, there is no constitutional right

-10-

to be present when dismissal of a juror is discussed.

See United
___ ______

States v. Brown, 571 F.2d 980, 986-87 (6th Cir. 1978).

______
_____

There was

no error in dismissing these jurors.

6.

Composition of grand and petit juries.

_____________________________________

Defendant moved to dismiss the

felon-in-possession

Selection

case for

and Service Act of

indictments in this and

failure

to comply

1968, 28 U.S.C.

with the

the

Jury

1861-1878 (the

Act), and the Fifth and Sixth Amendments, and to stay proceedings

until valid petit juries could be drawn.

the court refused to

motion.

hold an evidentiary hearing and

denied the

Defendant raises four issues.

a.

available

equal

After hearing argument,

Delay.
_____

to him

protection.

defendant

Defendant

claims that

jury information

Although

the

denied him

Magistrate

delay

due

in

making

process and

Judge

granted

access to the master jury wheel and the qualified jury

wheel in October,

February 17, 1995,

1994, this did not result in

when the court, after a

any action until

conference requested

by defendant, ordered both wheels to be delivered to defendant.

At a

received

juror

random

hearing on

February

the district's

jury plan

questionnaires and

pick.

examine the

28, defendant,

computer

and the

who had

two wheels,

programs used

already

sought

to achieve

The court granted access to defendant's counsel to

questionnaires.

Defendant sought

thirty additional

days in which to prepare his motion to dismiss; the court granted

twenty-three days.

No

request for additional time was

no showing was made of additional information needed.

-11-

made and

The

court

examine the

ruled

that

defendant had

material, noting that further

to lead to new information.

sufficient

time

to

analysis was unlikely

We think this judgment well

within

the court's discretion.

b.

Limiting access to materials.

_______________________________

conference on March 22,

used

to

select the

addresses,

and

copy of

telephone

the petit

townships of the

pretrial

1995, defendant sought computer programs

master

programmers, documents

At

and qualified

numbers

used to

and grand

of

jury

computer

process juror

jury venires,

grand jurors who returned

wheels, names,

operators

and

questionnaires, a

and

the names

and

the two indictments.

The

clerk

court, after noting that

in

the

production of records

jury selection

process

is

necessary to prepare a motion asserting a

comply with the Jury

1867(d),

denied

submitted a

limited

holding

to what

is

substantial failure to

Selection and Service Act, see

___

the request,

used by the

that

sufficient basis for production

28 U.S.C.

defendant had

not

of these additional

materials.

Defendant argues

on appeal that his figures

had revealed a

flaw in the randomness of Yale's computer program, which was used

to develop the

points out

master and qualified wheels.

that Providence

the names

on

the master

qualified

wheel.

He

As an

example, he

citizens comprised 13.46

wheel

but only

contends that

8.59

percent of

percent of

this discrepancy

the

demanded

further

Yale's

inspection, particularly

computer

programming

in light

that

resulted

of past

in

glitches in

the

complete

-12-

exclusion of

New

Britain

respectively.

persons from the large communities

from

See
___

the

qualified

United States
_____________

Cir. 1995); United States

wheel

and

v. Jackman, 46
_______

v. Osorio, 801 F. Supp.

of Hartford and

master

wheel,

F.3d 1240

(2d

966 (D. Conn.

_____________

______

1992).

Such

a showing

falls far

substantial noncompliance

described

Providence

in

Jackman
_______

with the

and

citizens were

short of demonstrating

on

Act.

Osorio,
______

both

Unlike

the situations

substantial

numbers

lists.

In

considerable information already made available

the

extensive memorandum

motion

people's work

trials.

and exhibits

to dismiss, the defendant bears

justifying what would

and

The court

further inspection.

a likely

that he

light

of

of

the

to defendant and

filed with

his

a considerable burden of

amount to both a considerable intrusion on

time and

did not

substantial

abuse

further delay

its discretion

See United States v.

___ ______________

of

the

in refusing

Davenport, 824
_________

F.2d

1511, 1514-15 (7th Cir. 1987).

c.

Evidentiary hearing.
___________________

Defendant charges

the court

with error in denying him an evidentiary hearing on his motion to

dismiss the indictments.

Under 28 U.S.C.

submits

a sworn statement asserting facts

impeach

the jury selection process,

the clerk or jury commission.

1867(d), if

a movant

which, if true, would

he may present testimony of

The district court, in denying

an

evidentiary hearing, referred at one point to the lack of an oath

before a notary public.

But defendant had signed

-13-

his statement

"under penalty of perjury," which is sufficient under 28 U.S.C.

1746.4

The

court,

adherence to "the

however,

also

noted

Marrapese, 610 F. Supp.

_________

went on to

than

circuit's

gatekeeper prerequisites" of

United States v. Foxworth, 599 F.2d

_____________
________

States v.
______

this

hold that

generalized

speculation and conjecture."

1867(d).

991, 996 (D. R.I.

of

See
___

1, 3 (1st Cir. 1979); United

______

the "purported affidavit

recitation

strict

1985).

is nothing

self-serving

It

more

conclusions,

Our reading

of the affidavit confirms

this conclusion; its

most salient statements assert discrimination against non-whites,

poor,

and certain minorities, and that

the master and qualified

wheels were skewed to underrepresent such classes.

argues that his affidavit refers to "data he

But defendant

has supplied in the

attached Motion to Dismiss" and that the motion to dismiss refers

to "the accompanying Memorandum of Law."

by defendant, consists

The memorandum, signed

of seventeen pages and derives

the facts

it relies on from an appendix of sixteen pages of tables and nine

pages of graphs.

down

The tables, with no indication of source, break

the population of the various towns and cities into various

categories: income, non-white,

ancestry.

Pages

of

data from

occupation, education,

the

1990 census

language,

extend

these

____________________

28 U.S.C.

1746 reads in relevant part, "Wherever . .

any matter is required . . . to be supported . . . by the sworn .

. . statement, . . . such matter may, with like force and effect,

be supported .
person

which

. . by the unsworn statement,

is subscribed

by him,

as

in writing of such

true under

penalty of

perjury . . . ."

-14-

classifications to include employed females, households receiving

public assistance, and persons over 65 possessing no vehicle.

The entire package is so unfocused, so often irrelevant, and

so

seldom tied

to verifiable

sources that

to declare

that it

should be considered as integrated with and incorporated into the

affidavit,

the

only

document

undercut the whole purpose of

enable

a court

to review

for

the requirement of

a challenge

"swiftly dispose of it if it

996 (quoting

that vouches

fails."

legislative history).

to jury

truth,

would

1867(d):

to

composition and

Marrapese, 610 F. Supp. at

_________

See also
___ ____

Foxworth, 599 F.2d

________

at 3.

We therefore do not fault the

also

by

note that defendant was

the ruling.

The court

court for its ruling.

But we

not, in all likelihood, prejudiced

heard a

fairly detailed

summary of

expected testimony from the clerk and an extensive offer of proof

of

defendant's

expert,

candidate

statistics and applied mathematics.

for

Ph.D.

degree

in

In addition, it had read all

of the motion papers, the memorandum, and the appendix.

d.

that

Fair cross-section.
__________________

non-whites

systematically

violation

Defendant's substantive

and

lower

excluded

from

economic

the

of the Sixth Amendment.

underrepresentation results

jury

have

selection

been

process

in

Defendant contends that this

inherently

from reliance

malfeasance.

In support of his theory, he cites data specific to

has

non-white

-15-

by

program

voter

lists,

which

further

on

registration

Providence,

magnified

classes

claim is

population

of

error

nearly

or

30

percent:

the

city

contains

15.72

percent

of

the

state's

population of 18 and over, yet accounts for only 14.25 percent of

registered

voters, 13.46

percent

of citizens

included in

the

master wheel, and 8.59 percent of those in the qualified wheel.

In order

to make out

cross-section requirement of

must

show

(1) that

distinctive group

a prima

facie violation of

the Sixth Amendment,

the group

the fair

the defendant

allegedly underrepresented

in the community, (2)

is a

that its representation

in the

venires from

which

juries are

chosen is

not fair

and

reasonable in relation to the total number of such persons in the

community,

and

systematic

exclusion

process.

The

that

such

of

the

district court

--

group

from

was

assumed that

met as

to

We also assume the point.

fair and reasonable

the

jury

must

be

observation that

the first

non-whites

from

selection

based

on

and

low income

must reject

defendant's

An assault on voter registration

something

non-whites and

requirement --

In moving on to the issue of

representation, we

first proposition cited above.

lists

underrepresentation stems

Duren v. Missouri, 439 U.S. 357, 364 (1979).

_____
________

distinctiveness

persons.

(3)

more

low income

than

the

general

people may

tend to

register to vote much less than more affluent or white people do.

Davenport, 824 F.2d

at 1514-15.

Nor do "numerical

disparities

_________

resulting

from the use of voter-registration lists . . . violate

a defendant's Sixth Amendment rights."

United States v. Ireland,

_____________
_______

62 F.3d 227, 231 (8th Cir. 1995).

-16-

When

we

further

consider

defendant's

statistical

presentation, we

recognize a

significant problem:

count non-whites and low income people on the

lists,

and the master and

somewhat appealing,

very well be

Providence

both groups.

but we

approach is permissible.

are not

Non-whites and

fairly represented

is.

And we have

the further

for that matter

Defendant's

premise

convinced that

such an

low income people

in both wheels

absence of information concerning the

non-white (or

voter registration

qualified jury wheels, defendant uses

Providence as a surrogate for

is

rather than

whether or

doubt created

may

not

by the

proportion of Providence's

its low income)

population which

has registered to vote.

But if we overlook these questions, we still face the facts,

as

did the district

court, that the

Providence's representation

in the

absolute disparity between

voter registration

list and

that in the master jury wheel is .79% (14.25% - 13.46%); and that

the absolute disparity

wheel and

Even

in its representation in the

master jury

in the qualified jury wheel is 4.87% (13.46% - 8.59%).

the broadest

potential

representation in the state's

comparison,

between

Providence's

population of 18 and over

representation in

the qualified

jury wheel, yields

disparity of only

7.13% (15.72% - 8.59%).

an absolute

As we recognized

Hafen, 726 F.2d at 23, absolute disparities of up to ten

_____

are widely conceded not

and its

in

percent

to constitute underrepresentation.5

See
___

____________________

Absolute disparity

measures the difference

between the

percentage of a distinctive group in a certain population and the

percentage of that group in a subset of that population.

-17-

In the

also Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992)
____ _______
_____

"borderline");

(7th

United States
_____________

Cir. 1990) (8%

v. McAnderson,
__________

914 F.2d

(14.1%

934, 941

is de minimis); United States v. Pepe, 747

______________
____

F.2d 632, 649 (11th Cir. 1984) (7.6% "well within . . . limits");

United States v. Butler,

_____________
______

(under 10% permissible).

611 F.2d 1066, 1069-70 (5th

Cir. 1980)

We see no reason to depart from this standard.

strikes

correct

balance

discrimination and becoming

between

We think it

avoiding

egregious

enmeshed with statistical approaches

aimed at unrealistic fine tuning.

As for Duren's third

_____

exclusion

be

shown,

we

prong, the requirement that systematic

have

simpliciter on voter registration

___________

demonstrated

would

be

either

registration qualifications or

the jury-selection procedure."

voter

already

lists.

"the

out

reliance

What would have

of

suspect

to be

voter-

discriminatory administration

Ireland,
_______

62 F.3d at

232.

of

But

qualification has never been in issue and the only showing

concerning creation of the qualified

is

use

ruled

wheel from the master wheel

defendant's offer of proof that a court officer would testify

that

persons were selected at random.

Defendant also raises the

possibility of abuse because names are drawn for new venires from

____________________

jury

selection context,

subtracting the

this

generally achieved

methods,

in the community.
but

the

absolute

appropriate where, as here, the allegedly

Joost

has suggested

disparity

test

v. Pion, 25
____

F.3d 18, 23

(1st Cir. 1994);

States v. Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984).

______
_____

-18-

is

underrepresented group

constitutes a very small proportion of the total population.

United States
_____________

by

percentage of a group on the jury wheel from the

percentage of that group

alternative

figure is

See
___

United
______

stable

qualified

improper

use

list,

of such

and someone,

list.

This

sometime,

is

too

could

remote

make

to

be

substantial.

In

short,

the

challenges

to

the

juries

were

properly

dismissed.

7. Propriety of Instructions.
_________________________

Defendant lodges

jury.

seven claims

of error in

instructing the

Only three merit specific treatment.

a. The first contention, that the court refused to give

an

instruction on the intent necessary to violate the Hobbs Act,

is somewhat mystifying.

Defendant states in his reply brief that

both an intent to

are necessary.

agree and an

But

intent to execute the

he acknowledged that he was

access to the record.

In fact, the

agreement

writing without

precise instruction he seeks

was given by the court.

b. Defendant

that

the jury

charges error in the

could consider

his

invocation of

against self incrimination in evaluating

may

instruct a

case, i.e.,

Caminetti
_________

jury to go

that the jury could draw

States v. Kaplan, 832

______
______

has

party

confused a

242 U.S.

the privilege

his testimony.

further than

v. United States,
______________

court's instruction

the court

or a non-party witness)

did in this

an adverse inference.

470, 494

as here,

a person

invokes the Fifth

See
___

(1917); United
______

F.2d 676, 684 (1st Cir. 1987).

situation where,

A court

Defendant

(whether a

Amendment on a

matter

where

relevant to the issues before the court and the situation

a person invokes the

privilege when asked

about a matter

-19-

wholly beyond the scope of the issue at hand, as in United States

_____________

v. Nunez, 668 F.2d 1116, 1122-23 (10th Cir. 1982).

_____

c. The court charged that

occurs "when extraneous circumstances

factual impossibility, which

unknown to the Defendant .

. .

prevent the consummation

defense.

he knew

Defendant claims

at the

Woonsocket.

time

As

instructions.

informant

intended crime," is

that this was not applicable

that the

armored car

was

not a

because

not stored

in

But the jury need not have believed him.

d. The

weighty.

of the

and

other challenges to instructions

to two,

As

an

there was

for the court

accomplice,

justified the charge.

are even less

no objection raised

referring to

the status

of

after the

Tracy as both

informant

an

alone

And the charge as a whole left no doubt as

to the law that defendant was accused of violating.

-20-

8.

Violation of Rule 30.

____________________

Fed. R. Crim.

P. 30

requires that opportunity

be given

party to object to an instruction out of the hearing and presence

of

the jury.

As noted above,

the jury twice requested that the

court reporter read the notes that she made from the June 29 tape

recording.

to listen

later read

that,

On the first occasion, the court told

the jury first

to the tape and that, if necessary, the reporter could

her notes.

When

asked if he had

counsel for defendant stated

reporter heard, was

the evidence.

any "problem" with

that the tape,

not what the

When the jury made its second

request for the reporter's

wished to

say anything.

objection.

notes, the court asked counsel

Counsel stated

When the jury retired,

that he

if he

had the

same

counsel moved unsuccessfully

for a mistrial on the ground that Rule 30 had been violated.

The government

argues that Rule 30 is not applicable, since

the court was not giving any

making a

trial ruling such

question.

We agree.

instructions

trial.

portion

on the

instructions on the law, but merely

as requiring a

The entire focus

law given by

The objection addressed

of the charge or

witness to

of the

a judge

rule is on

at the

the

close of the

by the rule is one made

omission therefrom."

answer a

to "any

The incident at

issue here was not within the compass of Rule 30.

9.

Playing excerpts of tapes.

_________________________

Many tape recordings were made

of defendant's conversations

with the detectives.

allowed

to be

Excerpted portions of eight of

played to

the jury.

these were

Defendant objected

to the

-21-

playing

of each

tape, usually

on three

grounds: authenticity,

defective chain of custody, and lack of completeness.

He did not

elaborate

additional

portions

on

his

objections,

that should be played.

nor did

He now

he

suggest

asserts that he wanted

the jury

to hear how the

portions,

so

particular

stories
_______

that

the

robberies

Joost was

conversations led up to

jury

were just

telling

the

would

see

part of

agents

that

the excerpted

discussions

"a larger

and

that

of

plethora of

he

was

the

consummate prevaricator."

Fed. R.

Evid. 106

allows a party

to supplement part

of a

recorded statement when the additional portion "ought in fairness

to be considered contemporaneously with it." The trial court must

have discretion

to conduct

drawing exercise, to be

what "essentially[] becomes

conducted case by case."

v. Boylan, 898 F.2d 230, 256 (1st Cir. 1990).

______

flat opposition to playing

a line-

United States
_____________

When confronted by

any excerpts of eight

time consuming

tapes,

the court can hardly

be faulted for

not attempting more

sensitive editing.

10. Refusal to recuse sua sponte.

____________________________

Although defendant

he contends

that 28

made no motion for

U.S.C.

455

the judge's recusal,

required the judge

to recuse

herself sua sponte based on an ex parte conference with him.

underlying circumstances

involved the

appointment to the bench,

Island

one

Supreme Court.

Freda

Salisbury

judge's role,

The

before her

as Disciplinary Counsel for the

Rhode

During the judge's time in that position,

filed

a complaint

-22-

against

an

attorney.

Defendant informed the court at the conference that Salisbury was

his mother.

According to

defendant, Salisbury had

with someone in the Disciplinary Counsel's office.

was

dismissed and defendant spoke

that office,

making strong

harsh words

The complaint

to someone unknown

criticisms of both

to him in

the Disciplinary

Counsel and the process.

This case was

goes beyond

first assigned to

the record to

another judge.

assert that

the judge who

case "had this case reassigned to herself

retribution

against

[defendant]

for

Defendant

heard the

. . . in order to seek

accusations he

had

made

against her . . . ."

reassignment followed

He charged at the ex parte hearing that the

"the same pattern

of underhandedness

and

harassment [that] has continued since 1963. . . ."

The record

reveals

no indication

prior knowledge that Salisbury

there

with

any indication

defendant.

herself sua

sponte on

would think

that she had

order

to

obtain

disciplinary proceeding,

judge recalled

that the

schemed to

based

on

that a

long

or that she willingly

have recused

reassigned in

since

terminated

joined a thirty-

two year old conspiracy, is too fanciful for further comment.

11 - 13.

Miscellaneous challenges.
________________________

was

reasonable person

have a case

Nor

any

any conversation

judge should

the assumption

revenge

judge had

was defendant's mother.

that the

To argue

that the

Several alleged errors are so insubstantial that they may be

quite

summarily addressed.

Number 11

is

that a

motion

for

mistrial should have been granted based on a ten-day delay in the

-23-

trial occasioned by the collapse and medical treatment of defense

counsel.

The court's narration of the sequence of events and the

considerations underlying the

delay completely

persuades us

of

the propriety of her decisions.

Number 12

attacks

a conference

between

the judge

juror, when the juror refused to reenter the jury

room.

and

Whether

or not all counsel agreed that the judge should confer alone with

the juror

-- as

the government contends,

indication in the

voiced when the

camera

court reporter

conversation with

filed

a post-trial

coerced

influence

jury

record -- it

no objection

read to counsel

Although

saying that

confirming

the

was

the judge's

in

defense counsel

juror had

been

by other jurors, there was no evidence of any extraneous

and the juror

verdict is not so

Norton,
______

is clear that

the juror.

affidavit

with some

867 F.2d

herself did not

easily impeached.

1354, 1366

(11th Cir.

contact the

court.

See United States v.

___ _____________

1989).

There was

no

error.

No. 13 alleges ineffective assistance of counsel, but, as we

have often held, where the record,

the

relevant

facts, direct

as here, does not contain all

appeal is

not

"extraordinary circumstances," the proper

2255.

United States v. Bergodere,

______________
_________

the route.

Absent

vehicle is 18 U.S.C.

40 F.3d

512, 517 (1st

Cir.

1994).

14.

Refusal of personal voir dire.

_____________________________

in the court's

prospective

refusal of

jurors.

his request to

Appellant alleges error

voir dire

personally

Local Rule 15 provides that at the close of

-24-

examination

of

counsel

opportunity

an

jurors by

the

to

court, "the

further

court

interrogate

shall afford

the

jurors."

Although a pretrial order had required each side to submit a list

of

all

questions

prospective

the

court

was

jurors, defendant did not

judge conducted

defendant for

that

submit such a

the questioning herself

additional suggestions.

requested

and, at the

He

to

ask

list.

of

The

end, asked

offered four: whether

prospective jurors would be

prejudiced if they heard disparaging

remarks

whether they

about the

police,

would

be offended

by

obscene remarks,

of

pro

whether they understood and

se litigant,

and

whether

they

respected the role

would be

adversely

affected if they knew a defendant had a criminal record.

The court

was

into

correctly refused the last

instruction, since it

not then clear that prior criminal records would be admitted

evidence.

It had

their knowledge of and

interrogated a

in

questions

accomplished

the precise

form

roughly

advocated by

fair instruction about pro

not

give

any

instruction

reactions to obscene language.

defendant,

equivalent inoculation

to disparagement.

and

was

jurors about

relations with law enforcement personnel.

While not

adverse reaction

number of

The court

against

gave a respectful

se representation.

concerning

these

What it did

possible

adverse

It may

well

be that

failure to submit a

the

privilege

the court

reasoned that

defendant's

list of suggested questions stripped

afforded by

Rule 15.

The

him of

government, however,

proffers no reason for noncompliance with a rule that is facially

-25-

mandatory.

And

Diaz-Villafane,
______________

defendant

874 F.2d

justifiably cites

43, 46

(1st Cir.

United States
_____________

1989) ("Once

v.

local

rules have

right

been promulgated, lawyers

to place

cannot

find

reasonable reliance

that

lack

of

and their

clients have

on them.")

question

But

addressed

we simply

to

jurors'

reactions to obscenity

mandates reversal.

In the

context of the entire case

the error

was harmless.

15.

Cumulative errors.
__________________

individual errors do not

of a

have

But our analysis

an absence of error.

invoked

harmless

argues

the

defendant[]

if

error

reveals, for the

The few instances

fall

far

short

"pervasive unfairness or any error or combination

deprived

that even

mandate reversal, the cumulative impact

number of errors does.

most part,

Appellant

of

due process,"

in which we

of

revealing

of errors that

United States
______________

v.

Brandon, 17 F.3d 409, 456 (1st Cir. 1994).

_______

16. Sentencing Guideline issues.

___________________________

a. Defendant first argues that his offense level should

have been determined by U.S.S.G.

instead of

2B3.1, the robbery

2X1.1, the conspiracy guideline.

He claims that the

former does not permit added adjustments for intended

several of which were imposed by the

latter explicitly

allows adjustments

guideline,

conduct --

district court -- while the

"for any

intended offense

conduct that can be established with reasonable certainty."

Section 2X1.1(c)(1)

expressly

covered

by

specifies

another

that when

guideline

-26-

conspiracy

section,

the

is

other

guideline should be applied rather than

deal with a Hobbs Act

November 1,

1993,

2X1.1.

conspiracy under 18 U.S.C.

U.S.S.G.

2E1.5 (Hobbs

Act

Robbery) signalled that a violation of 18 U.S.C.

governed by

In this case we

1951.

Until

Extortion

or

1951 should be

2B3.1.

This guideline

leading the Second

was deleted as of November 1, 1993, however,

Circuit in

1255, 1261 (1995), to

United States v.
_____________

Amato, 46
_____

conclude that "[t]he deletion of

F.3d

2E1.5,

with its cross-reference to

Guidelines that

2B3.1, deletes the provision of the

provided the `express' reference

inapplicable."

We agree

with

earlier

cited by

defendant.

U.S.C.

cases

1951,

along

with

this conclusion,

The

several

making

and reject

bare reference

other

statutes,

"Statutory Provisions" section of the Commentary in

not

determination

to 18

in

the

We also

Amato involved a faulty reading

_____

of the significance of the deletion of

This

the

2B3.1 does

rise to the level of constituting express coverage.

reject defendant's argument that

2X1.1

forecloses

2E1.5.

argument

that

adjustments for specific offense conduct were impermissible

here

because they are not allowed under

b.

Defendant

defendant's

2B3.1.

challenges

the

sufficiency

of

the

evidence

for several adjustments to the base offense level.

The

first such issue arises from the court's action in increasing his

offense level by six

which was, although

opposed

to

levels for the intended

not discharged,

"brandished,

to be

displayed

use of a

firearm,

"otherwise used"

or

as

possessed."

-27-

2B3.1(b)(2)(B).

It

is clear from

the taped conversations

that

defendant instructed

guns

to threaten

facility.

the detectives about the

and perhaps

Moreover, the

shoot guards

set

of

two-level increase

how

sealed with

with guards and the

circumstances justified

for restraining a

commission of the offense under

outlined

armored car

use

There was no error in making this adjustment.

similar

imposing a

at the

very robbery envisaged would inherently

involve the likelihood of confrontation

of weapons.

possible need for

a guard

duct tape.

would

2B3.1(b)(4)(B).

be caught,

the

court

person in

in

the

Defendant had

handcuffed,

and mouth

Restraint of some such fashion was to be

expected in the type of robbery contemplated.

The

U.S.S.G.

court

also

imposed

2B3.1(b)(6)(G) to

six-level

enhancement

reflect an intention

under

to inflict a

loss

the

between $2.5 million and $5 million.

Meehan Armored Car company

various

precious

Woonsocket

metal

facility

testified that the

shipments

averaged

The vice-president of

$5

stored

value of the

overnight

million.

These

in

the

were

the

materials that the guards would pick up at 3 a.m. for delivery in

New York City.

of

Defendant would require proof of the

the shipment

pinpoint a date

on

a given

certain.

The

day.

But

court was

his

finding

his equal

that

smaller amount.

protection argument

codefendant

Grelle's

planning did

well within reason

basing the enhancement on the range it chose.

better in

exact value

in

Defendant fares no

based

sentence

not

on the

court's

should reflect

Grelle's situation was different; the jury could

-28-

not,

after all, reach

a verdict as

to him; the

sentences were

truly individualized, reflecting differences in knowledge.

founded

five-level

on

necessarily

record

increase for

statements

overlap with

the

bodily injury

by

was sufficiently

defendant;

it

enhancement based

on

does

not

restraint,

since different actions could be taken against the two guards.

two-level enhancement for obstruction of justice was based on the

court's conclusion

that defendant's testimony was

false.

While

defendant maintains that he was just an accomplished prevaricator

in his talks

with the detectives, he obviously ran the risk that

he would be considered by judge and jury a prevaricator about his

alleged prevarications.

c.

Factual Impossibility: a bar to enhancements?

__________________________________________________

Defendant argues that even if factual impossibility is not a

defense to conspiracy, enhancements should not be imposed because

the

substantive offense could not have occurred.

distinguish

Cir.

United States v.
_____________

1993), which

His attempt to

Chapdelaine, 989 F.2d

___________

involved an

attempted robbery

28, 35 (1st

that misfired

because the putative robbers arrived after their target truck had

left, does

the

not carry the day.

defendants

were

convicted

In both Chapdelaine and this case

___________

of

conspiracy,

and

in

both

completion of

impossible.

the

planned

action had

in

That no witness contradicted

fact

been

rendered

defendant's testimony

that he knew that the armored car had left the facility is of

consequence; his

conviction stemmed from the

he intended to commit the robbery.

-29-

no

jury's belief that

-30-

CONCLUSION
CONCLUSION

In sum, we have carefully surveyed all of the arguments that

defendant

associated

concerned.

has vigorously

and

proceedings were

thoroughly made.

both complex

The

trial and

and demanding

on all

But while undoubtedly not perfect, the trial met the

basic standard of fairness.

AFFIRMED.
________

The judgment is accordingly

-31-