USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1754

UNITED STATES,

Appellee,

v.

BRIAN SMITH,

Defendant, Appellant.

___________________

No. 95-1857

UNITED STATES,

Appellee,

v.

GERALD YANOVITCH,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Charles W. Rankin, with

__________________

whom Rankin & Sultan were

________________

appellant Brian Smith.

Michael C. Bourbeau for appellant Gerald Yanovitch.

on brief

___________________
George W. Vien, Assistant United States Attorney,
______________
with

whom Donald K. Stern, United States Attorney, Carole S. Schwa

_______________
_______________

and Michael D. Ricciuti, Assistant United

____________________

States Attorneys, were

brief for appellee.

____________________

November 26, 1996

____________________

CAMPBELL, Senior Circuit Judge.

____________________

Circuit Judge.
_____________

CAMPBELL,

United States Grand Jury for

Senior
______

the District

of Massachusetts returned

an indictment charging defendants-

appellants

("Smith")

Brian

("Yanovitch")

(Count One)

U.S.C.

Smith

with being

Gerald

felons-in-possession of

and ammunition (Count

922(g) (1976

and

Yanovitch

a firearm

Two), in violation

& Supp. 1996),

2 (1969).

of 18

After

five-day trial, a jury convicted the defendants-appellants on

both counts

of the

indictment.

Prior

to sentencing,

the

district court, citing double jeopardy concerns, required the

government to elect between

counts, and the government chose

to retain the conviction under Count Two.

sentenced

Smith to

prison without

assessment.

$50

The court sentenced

assessment.

appeal.

the statutory maximum

supervised release

prison, with three

The district court

of 120

or fine,

and with

Yanovitch to 78

years supervised release,

Both

months in

defendants filed

a $50

months in

no fine and

timely notices

of

We affirm.

I.

At

approximately

8:00

to 8:30

p.m.

on

Friday,

December

2,

1994,

Mark

Duggan

was

in

Charlestown,

Massachusetts to pick up a friend, Jonellen Ortiz.

As Duggan

drove to the

apartment

building,

parking lot

he passed Smith.

in the rear

of Ortiz's

Duggan pulled his

-33

car into the

parking

lot

and stopped.

Through his

rear

view mirror,

Duggan saw Smith approaching his car from behind.

Smith and

Charlestown

woman,

Duggan had had a

approximately

prior confrontation in

two months

Colleen King, who was

earlier

the mother of

concerning a

Smith's son and

Duggan's former girlfriend.

Duggan

Smith,

back

got out

who was thirty to

into the

reached

car

of the

car, exchanged

forty feet away,

and retrieved

words with

and then reached

baseball bat.

Smith

into his pants and pulled out a dark, small caliber,

semi-automatic

handgun and showed it to Duggan.

There was a

standoff, and Smith eventually left the area.

After the encounter with Duggan, Smith and King met

King's

best

friend,

Melissa

Brown,

on

street

in

Charlestown.

Brown had

years, and was

known Smith for

approximately five

the godmother of Smith's and King's son.

three of them

walked to

Charlestown, where

a liquor

store on

they purchased beer.

King's apartment, located in

The

Main Street

in

They, then, went to

the same housing development in

which Ortiz lived.

Later

in

the

evening, Yanovitch

Danielle Scanlon, arrived at

others in drinking beer.

and got into the

Car in which

and

his

date,

King's apartment and joined the

All of them left

King's apartment

large, dark-colored, four-door Lincoln Town

Yanovitch and Scanlon had arrived that evening.

-44

With Yanovitch driving, they traveled to a bar named "Kelly's

Cork

11:30

and Bull" in South

Boston.

The

group arrived between

p.m. and midnight, and stayed there about one and one-

half or two hours.

Near

involved in

closing

time,

a conversation

former boyfriend.

Smith and

Smith

and

Yanovitch

with Robert Viens,

Viens began to

became

Jr., Brown's

argue about

gun,

and the argument

spilled into the

street.

Yanovitch,

King and Brown, as well as Viens's friend, Walter Veneau, and

the latter's

girlfriend, Tammy Tetreault,

followed them out

of the bar.

Once outside, Yanovitch, King and

Brown walked

over to their Lincoln, which was parked nearby.

Smith and Viens continued to argue outside the bar.

Smith said to

Viens that he wanted to speak

with him alone,

and the two of them walked down the street together away from

the bar.

Smith,

then, reached inside his jacket,

responded by throwing punches at Smith.

and Viens

The fight moved back

towards the Lincoln, as people tried to break it up.

pulled his friend Viens

back from Smith as Smith

into the center of the Lincoln's back seat,

side of him and Scanlon on the other.

Veneau

was pulled

with King on one

Yanovitch,

exchanged words

car

Smith

through the

who

was

with Viens,

still

the

and then partially

driver's side

handed a handgun to

outside

Lincoln,

entered the

door.

From the

back seat,

Yanovitch.

Yanovitch

got out of

-55

the car

with the gun,

ground, and

proceeded to fire one

then shot Viens.

Viens ran and staggered up the

street away from Yanovitch.

Viens fell to the

Viens,

pointed

Yanovitch,

Yanovitch shot Viens again, and

ground.

the

then, ran

gun

round into the

From behind, Yanovitch

at

back

his

head,

to the

and

closed on

fired

Lincoln, got

again.

behind the

wheel and sped away with his friends.

After Yanovitch sped

Viens,

who was lying

paramedics

in

paramedics

found

street.

away, Veneau went to

in the street.

an ambulance

responded

Viens alive,

lying

comfort

The Boston Police and

to the

on

his

scene.

The

back in

the

Viens had two small-caliber entry wounds and a third

small-caliber exit wound.

One of the entry wounds was in his

left front chest, while the exit

wound was in the right side

of his chest.

Viens was uncooperative, refused to

name, and even told

with

the

police.

witnesses at the scene not

The

paramedics

placed

give his

to cooperate

Viens

in

the

ambulance and took him to Boston City Hospital.

where

friend

drove

Veneau to

he saw Viens's parents.

to cooperate with

speaking with

Boston

City Hospital,

Although he initially refused

the police, Veneau changed

Viens's father.

Veneau, then,

recorded interview to Boston Police Sergeant

Wyse.

-66

his mind after

gave a

tape

Detective James

Without information from

the police searched

did not

the area of the shooting,

find any ballistics

Veneau concerning the exact

evidence.

caliber shell

casings.

approximately fifteen

After

witnesses,

but initially

speaking with

location of the shooting, police

officers returned to the crime

.25

the victim or

scene and recovered two spent

One of

to twenty-five

the casings

feet from

was found

where Viens

was

lying when

the police

other casing was recovered

and paramedics

found him.

The

an additional ten to twenty

feet

away from the first casing.

Smith and Yanovitch were arrested on the basis of a

complaint.

On

January 24,

1995, a grand

jury returned

an

indictment charging Smith and Yanovitch with being felons-in-

possession

Two),

in

of a

firearm (Count

violation of

1996), 2 (1969).

One) and

18 U.S.C.

At trial,

ammunition (Count

922(g) (1976

Smith and Yanovitch

& Supp.

stipulated

that they were convicted felons at the time of the shooting.

The

Sullivan, and

French,

government

called

paramedic,

Michael

two police officers, Wyse

and Lieutenant Gary

who had responded to the scene.

After speaking with

Veneau at Boston City Hospital,

French returned to the crime

scene and recovered

also called

Agent, Allan

Alcohol,

the two shell

Tobacco and

casings.

government

Firearms ("ATF")

Offringa, who testified

that the .25 caliber

The

on direct

Special

examination

shell casings were manufactured outside

-77

Massachusetts,

manufactured

named

and

that

in that

Harrington and

the

state

only

.25

caliber

was manufactured

Richardson

("H &

by a

company

R"), which

started

making the gun in 1909 and stopped doing so before

II.

Boston

Police Ballistician,

pistol

Edward

World War

Szalno, testified

that the marks found on the spent shell casings were not made

by an H & R pistol.

The government

for

two of

Yanovitch.

the women

obtained compulsion/immunity orders

who were

Although these

that they did

not see

they were out with

in the

car with

Smith and

women, Brown and Scanlon, claimed

the shooting, they

did confirm

Smith, Yanovitch and King on

that

the evening

in question, and that Yanovitch got into the driver's seat of

the car shortly after they heard

gun shots.

Both women also

confirmed that Smith

seat

of the

car.

government.

earlier

He

in the

was seated

Duggan was

recounted

evening in

in the middle

called as

his

a witness

Veneau

the shooting.

of the

of the

confrontation

question.

testified to having witnessed

the man

in the middle

back seat of

back

by the

with

Smith

and Tetreault

They

said that

the car

handed

Yanovitch a gun, which the latter used to shoot Viens.

Yanovitch

After

the

trial

and

on

both

counts

of

conviction

the

of

indictment,

Smith

and

and

the

government's election of Count Two, the court sentenced Smith

to

the

statutory maximum

of

-88

120

months

in

prison,

and

Yanovitch

to

78

months

in

prison, with

three

years

of

supervised release.

II.

On

appeal,

Smith

presents

claiming errors at trial and in sentencing.

issues were

not

raised

in the

district

host

of

issues,

As most of these

court,

they

are

reviewable

on

challenges his

appeal

only

for

plain

error.

Yanovitch

sentence and says that he adopts by reference

any additional issues raised

by Smith which could materially

affect his rights in this case.

A.

The Nondisclosure of Test Results

_________________________________

At trial, Ballistician Edward Szalno testified that

the

two shell

scene were

casings that

fired from

a .25 caliber

but that the weapon was not

R")

pistol.

Since H

manufactured a .25

that

the

from the

a Harrington & Richardson ("H

within the

effect of this testimony

used

had

&

company that has ever

caliber semi-automatic weapon

gun

crime

semi-automatic weapon,

& R is the only

state of Massachusetts, the

indicate

were recovered

traveled

in

was to

interstate

commerce.

Prior to testifying, Szalno had test-fired an H &

.25 caliber

shell

semi-automatic pistol,

casings with

those found

at the

and had

compared the

crime scene.

comparison confirmed his earlier conclusion that the

-99

This

casings

recovered

from the crime scene were not

fired from an H & R

pistol.

Smith's counsel says he

test-firing

during

then, moved to

the

his cross-examination

strike Szalno's testimony on

government had

failing

first became aware of this

violated

to inform the defense

its

prejudiced Smith's

of the test.

government

should have

observed results

report had

provided

the ground that

by

Counsel argued

The court ruled

defense counsel

that the

with

the

though no written

The court refused,

testimony, noting

He,

his cross-examination

of the test-firing, even

been generated.

strike Szalno's

not

defense.

Szalno.

discovery obligations

that this discovery violation affected

and

of

that defense

however, to

counsel had

sought a continuance to counter the evidence and had, in

effect,

created

the problem

at

hand

by asking

questions

without first determining the likely responses.

The

provisions that

advance disclosure of the

of

the Local Rules of

the District

"The government

inspect,

copy

follows:

(3)

comparisons,

the United States

The

or copies

of Criminal

former states, in relevant part,

photograph,

. . . all

District Court for

and Federal Rule

shall disclose,

and

have required

test-firing results are Rule 116.1

of Massachusetts

Procedure 16(a)(1)(D).

might arguably

and allow the

all

written

scientific tests,

thereof, made

-1010

defendant to

materials

experiments

in connection

as

and

with a

particular case."

D. Mass.

R. 116.1(a)(3).

As the

Local

Rule is expressly limited to written materials, of which none

were generated here, it was not violated.

The

Federal Rule

other

proviso

of Criminal

not speak specifically of

the words "inspect and

upon

which

Smith

relies

Procedure 16(a)(1)(D), which

written materials only.1

is

does

However,

copy or photograph" logically suggest

that

the

items to

be disclosed

be

tangible enough

susceptible to inspection, copying or photographing.

Crim. P. 16(a)(1)(D); see also Fed.

________

(C).

to be

Fed. R.

R. Crim. P. 16(a)(1)(A),

Our circuit has expressly reserved decision on whether

Rule

16(a)(1)(D)

requires

the

disclosure

personal observations of tests and the like.

States
______

v. Veilleux, 40 F.3d
________

States
______

v. Tejada,
______

886

9 (1st Cir.

F.2d 483

(1st

of

unrecorded

Compare
_______

United
______

1994), with United

____ ______

Cir. 1989).

Other

circuits, however, have held that such unrecorded information

is not covered by

766

F.2d 1122,

require

Rule 16(a)(1)(D).

1135

disclosure of

(7th Cir.

United States
_____________

1985)

expert's oral

(the Rule

statements

v. Shue,
____

does

not

made after

comparing photographs);

654,

United States
_____________

659 (11th Cir. 1983)

v. Johnson,
_______

(where no report

713 F.2d

was prepared by

____________________

1.

The relevant language of the Rule provides, "Upon request

of a defendant
inspect

and

the government shall permit

copy

or

. . . of scientific
which are within

photograph

any

the defendant to

results

tests or experiments, or

or

copies therof,

the possession, custody, or control

government . . . ."

-1111

reports

of the

expert, no discovery obligation was incurred under the Rule).

See also United States v.

_________ _____________

Cir.

1991) (similar

Peters, 937 F.2d

______

language

pertain to oral information").

of the

Seventh, Eleventh

with the

where

plain language of

the test result in

the crime

government to

This being

We think the above

decisions

are consistent

Rule 16(a)(1)(D), and

hold that

question consisted of the expert's

the test-firing casings with

scene, Rule

16(a)(1)(D) did not

produce in advance

so, we find

16(b)(1)(B), "cannot

and Ninth Circuits

unrecorded comparison of

at

in Rule

1422, 1425 (9th

no error

strike Szalno's testimony.2

the expert's

in the court's

those

obligate the

conclusions.

refusal to

While this ends the matter, we also agree with

district court

that there was

a total absence

the

of prejudice

from the nonproduction of the expert's observations following

the

test-firing.

Smith

argues

that, had

he

known about

Szalno's test-firing, he would not have cross-examined him in

the

took

manner he did, to his detriment.

the

stand,

ATF

Special Agent

However, before Szalno

Offringa

had

already

testified that he had test-fired an H & R pistol, and that he

had

given

the

casings to

Szalno

for

comparison.

In

addition, Szalno himself testified on direct examination that

____________________

2.

The arguments on this appeal

requirements
requires

the

of Rule 16(a)(1)(E)
government,

on the

do not involve the separate

on Expert Witnesses, which
defendant's

request,

to

disclose

a summary of

the expert's opinions,

the bases and

the reasons therefor.

-1212

he

had examined two cartridge cases that had been fired from

an

& R

reference

book.

.25 caliber

to the

Smith

examination

was,

FBI's

semi-automatic

General Rifle

therefore,

that Szalno

on

pistol and

and

Characteristics

notice prior

had compared

had made

the casings

to

cross-

from the

crime scene with

pistol.

others that were test-fired

The test-firing

relevant

only

convictions,

to

the

of an H

& R pistol was,

interstate element

which the government

from an H &

of

moreover,

the

firearm

later elected to dismiss.

The test-firing was irrelevant to the ammunition charges upon

which

both

Smith and

Yanovitch

were

sentenced, it

being

undisputed the casings had been manufactured in Arkansas.

only the

latter convictions

stand, the claimed

As

error would

have been harmless.

B.

The
Admissibility
of Evidence
Concerning Smith's
________________________________________________________
Possession of a Firearm Earlier on the Night in Question
________________________________________________________

Duggan testified

Smith earlier

on the

that he had a

evening

confrontation with

in question,

in which

Smith

displayed a small,

semi-automatic handgun.

Smith

contends

that such testimony was admitted in violation of Federal Rule

of Evidence 404(b) because it was evidence of a prior bad act

offered solely to prove Smith's propensity to use guns.3

For

____________________

3.

Rule 404(b) provides: "Evidence of other crimes, wrongs,

or acts is not admissible to

in order to
however,
motive,

show action

prove the character of a person

in conformity therewith.

be admissible for other purposes,

opportunity,

identity, or

intent, preparation,

absence of

may,

such as proof of
plan, knowledge,

mistake or accident,

-1313

It

provided that

evidence

of this sort to be

admissible, it must be shown to

bear some special relevance to an aspect of the case at hand,

other than

things.

(1st Cir.

merely to

propensity to

do bad

See United States v. Cortijo-Diaz, 875 F.2d

___ ______________
____________

13, 15

1989).

the defendant's

Here,

Smith argues, the

such special relevance and was used by the

testimony lacked

government simply

as propensity evidence.

Smith did not, however, object at trial to Duggan's

testimony in this regard.4

to plain error.

Under

Our review is, therefore, limited

that standard, the

burden falls

on

appellants to show that there is

clear

an error, that the error is

or obvious, and that the error affected the outcome of

the proceedings below.

732-34 (1993).

evidence

United States v. Olano, 507 U.S. 725,

_____________
_____

Because the challenged

of the

crimes

charged, the

testimony was proper

court did

not commit

error, much less plain error.

Far from merely relating to "other crimes,

or acts,"

Fed. R.

Evid. 404(b), Duggan's

wrongs,

testimony helped

____________________

upon request by

the accused, the

prosecution in a

case shall provide reasonable notice in advance of

during trial
cause

if the

court excuses pretrial

shown, of the general

nature of any

intends to introduce at trial."

4.

Smith

conversations

had

objected

Duggan

trial, or

notice on

good

such evidence it

Fed. R. Evid. 404(b).

earlier

might have

criminal

had

to
with

questions

about

Smith regarding

King,

complaining that

such conversations

At sidebar,

the government

testimony.

Smith did not object thereafter.

object to

were irrelevant.

explained the relevance

that portion of the

of such

Neither did he

government's closing argument

based upon Duggan's testimony.

-1414

establish

One)

that

Smith knowingly

possessed a

firearm (Count

and ammunition (Count Two), as required under 18 U.S.C.

922(g) (1976 & Supp. 1996).

The decisions in United States

_____________

v.

Diaz-Martinez, 71
_____________

States v. Klein, 13
______
_____

S.

F.3d 946 (1st

Cir. 1995),

F.3d 1182 (8th Cir.), cert. denied, 114

_____________

Ct. 2722 (1994), are instructive.

defendant, who

and United
______

In Diaz-Martinez, the
_____________

was charged with possession

of firearms with

obliterated serial numbers in violation of 18 U.S.C.

(1976 & Supp. 1996),

was involved in a shootout

before

at

his

firearms.

arrest,

We

which

dismissed

time

police

defendant's

922(k)

immediately

recovered

argument

that

the

the

government improperly referred to the shootout in its closing

argument

stating,

integrally related

"[B]ecause

to the evidence

defendant (the possession

have

. . . the

shootout

linking the guns

was

to the

charges), that evidence could

been barred by Rule 404(b)."

not

Diaz-Martinez, 71 F.3d at

_____________

951 n.4.

The

Eighth Circuit reached the same

Klein on comparable facts.

_____

Even

only

to

Klein, 13 F.3d at 1184.

_____

assuming that

the weapon

testimony that Smith

with

conclusion in

the possession

which

Viens

charge related

was shot,

was in possession of

Duggan's

a similar handgun

earlier that evening tended to establish that Smith possessed

the

same handgun

shooting.

few hours

The district

later,

at the

time of

court did not commit plain

admitting Duggan's testimony.

-1515

the

error in

C.

The
District
Court's Control
of
Smith's Cross________________________________________________________
Examination
___________

Smith

erroneously

Duggan

about

custody

argues on

restricted

first informed

appeal

his

police

two weeks before trial,

on unrelated charges.

to establish

that

the district

cross-examination

of his

of

encounter with

after he had

court

Duggan.

Smith

been taken into

Smith contends that he wanted

on cross-examination that,

at the time

of his

testimony,

criminal

Duggan

had

charges.

pending

This

against

line of

him

questioning

enabled Smith to argue that Duggan had slanted

to

gain

better

complains

that

treatment

the

from

district

the

court

number

would

of

have

his testimony

government.

severely

Smith

limited

his

ability in this regard.

district

examination,

while

court's discretion

broad, is

not

to

control cross-

unlimited.

See
___

States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996).

______
______

we find

little indication

examination in

not at

the asserted

the time complain to

that the court

manner.

United
______

However,

restricted cross-

Moreover,

counsel did

the court of being

so limited,

hence we review only for plain error, Olano, 507 U.S. at 733_____

34, a standard clearly not met on this record.

During

when counsel asked

the

initial

Duggan if

stages of

he had

cross-examination,

cases pending

against

him, the district court sustained the government's objection.

Defense counsel then asked

whether the government had helped

-1616

him with his pending cases.

Later,

Duggan answered in the negative.

counsel asked whether Duggan was aware that Ortiz had

filed a complaint against him for threatening her with bodily

harm.

The government

objected,

and

a sidebar

followed.

During the sidebar, the district court stated, "Perhaps I was

precipitant."

line

of

It allowed

of questioning.

the challenged

Duggan then conceded that he was aware

Ortiz's complaint at

After counsel

counsel to pursue

the time

he contacted

finished questioning Duggan

the police.

regarding Ortiz's

complaint, he did not proceed with similar questions relative

to other pending matters nor ask the court to allow him to do

so nor

indicate that he

felt unduly

limited.

We find

no

merit in Smith's argument on appeal that the court improperly

restricted his cross-examination of Duggan.

D.

Duggan's Prison Reference and its Impact on the Trial

_____________________________________________________

Duggan mentioned during his direct examination that

King's "ex-boyfriend" had recently been released from prison,

an

obvious

counsel

reference,

promptly

Smith

objected,

challenged testimony

says, to

and

struck.5

the

himself.

court

Smith's

ordered

Smith's counsel did

the

not ask

____________________

5.

Duggan made the

disputed reference during the following

exchange:
Q:

And

how did

your

relationship

with

[King]

develop?
A:

Went on

through the

the summer

of '94

summer, the spring,

and stopped in

October of

'94.
Q:

And why did it stop on October of '94?

A:

Her reason was, ah, that it was --

-1717

and

for

a mistrial at the time,

but, on appeal, now argues that

the court erred in not declaring a mistrial sua sponte.

__________

Absent

review

of the

since it

for

court's failure

plain error only.

that,

request

Olano, 507
_____

was

clear

mistrial,

to order

a mistrial

U.S. at 733-34.

to

the

jury

this court's

that

Smith

is for

argues

Duggan

was

referring to

response

Smith as

was so

having been

prejudicial as

released from jail,

to necessitate

the

a mistrial.

The district court, however, took some curative measures.

It

sustained Smith's

As

objection and struck Duggan's

counsel asked for no more at

reasonably assume

the time, the trial court could

that Smith was

prejudice was neither

remark.

satisfied.

so obvious

nor so clear

The

degree of

that only

mistrial would have satisfied the needs of justice.

In United States v. Cresta, 825 F.2d 538

_____________
______

1987),

this

court

laid

out

the

factors

that

(1st Cir.

must

be

____________________

Defense Counsel: Objection.

The Court:

Sustained as to

may have said.

anything she

Q:

Without saying what she said, why did you stop

seeing her in October?

A:

The
relationship
ended because
her ex______________________________________________
boyfriend got out of jail.
_________________________
Defense Counsel:
The

Court:

and

the

Objection.

The objection

answer

is

is sustained

stricken.

That's

something someone told you, right?

The witness:
The Court:

Yes, it would be, I guess.

Yes, its -- someone told you.

The witness can only testify to what they

know,

not what

people

told them.

answer is stricken; disregard it.

-1818

The

considered in evaluating

an

accused's prior

isolated, whether

the

trial court's

any prejudice

whether any

the case.

present

answer

the remark

or accidental,

instruction was sufficient

have flowed

Cresta,
______

825

question

F.2d at

550.

government points

reference

designed

to

by a

address

The

to

was

whether

to counteract

from the

remaining prejudice could affect

and accidental

whether

it was deliberate

that might

hearsay objection.

he

imprisonment:

case, as the

isolated

an otherwise improper reference

remark, and

the outcome of

remark in

out, was

the

a single,

witness trying

to

defense counsel's

Smith himself had already stipulated that

was a convicted felon.

The disputed remark added little,

therefore, to what the jury could already surmise.

find plain error in

the court's failure to order

We do not

a mistrial

sua sponte.
__________

E.

The Questioning of Defense Witness Ortiz

________________________________________

On cross-examination, the government

over Smith's unexplicated

Ortiz whether she had

the Drug

such,

objection, to ask

defense witness

acted as a confidential

informant for

Enforcement Administration ("DEA") and

whether, as

she had helped the DEA obtain a search warrant for the

apartment of her friend, Colleen King.

the

was allowed,

district

court

should

have

Smith now argues that

excluded these

because they were irrelevant and because

by

questions

implying that

Smith's girlfriend was the subject of a drug investigation

-1919

they

unduly prejudiced him and his case.

that

the

district

establishing

that

apartment yielded

court

the

erred

DEA's

no evidence

in

Smith also asserts

preventing

subsequent

search

of illegal drugs.

him

from

of King's

Eliciting

such

evidence was

concerns about

relevant,

Smith says,

the credibility of

to undermine

the witness and

any

to rebut

the prejudicial characterization of Smith and his girlfriend.

We do not find plain error.

One problem

never

advised

advances

be

these arguments

district court

on appeal

inquiry.

not

the

with

for excluding

of

the

is

that

Smith

reasons he

the government's

now

line of

Federal Rule of Evidence 103 states that error may

grounded

substantial right

upon

an

of the

evidentiary

ruling

party is affected,

"unless

and . . . [i]n

case the ruling is one admitting evidence, a timely objection

______

or

motion to strike appears

ground

of

objection

of record, stating the specific

________

. . . ."

Fed.

R.

Evid.

103(a)(1)

(emphasis added).

the government

Counsel had been informed in advance that

planned to cross-examine Ortiz concerning her

DEA connections, and while he objected, he did not argue that

the

information was

under

Rule 403.

irrelevant nor

claim prejudice

And when the district court limited Smith's

redirect examination of Ortiz, Smith

review,

did he

made no objection.

therefore, is only for plain error.

at 733-34.

-2020

Our

Olano, 507 U.S.

_____

The government contends that

was designed to

King.6

impeach Ortiz,

Ortiz denied that

its cross-examination

and not to

smear Smith

and

she had ever furnished information

to the DEA, the government did not implicate Smith during its

cross-examination of Ortiz, and the court instructed the jury

that counsel's

questions did not constitute

assuming arguendo, it

was error to

cross-examine Ortiz as it did,

slight, if any, damage

redirect

evidence.

allow the government

we conclude the error

to Smith.

Even

The limitation

was likewise far short of plain error.

to

caused

of Smith's

The subject

matter was

of border-line

relevance, hence well

within the

discretion of the court to control, see Fed. R. Evid. 401.

___

F.

The Government's Closing Argument

_________________________________

Smith claims

that

evidence on four separate

the prosecution

and, therefore,

the

occasions in its closing argument.

These alleged misstatements, according

heart of the case,

misstated

to Smith, went to the

were not corrected by the

district court

warrant the reversal of his conviction.

The

challenged statements, and this court's reasons for rejecting

Smith's present claims, are set forth below.

____________________

6.

The government

motives

to

lie

says it sought

on the

part

of

to establish
Ortiz.

To do

biases or
so,

the

government claimed that Ortiz

and King had been in

business together, that information

DEA

provided by Ortiz to the

contradicted her testimony at trial,

capable

of

duplicitousness

(and,

the drug

and that Ortiz was

thus, of

lying

on

the

stand).

-2121

Smith concedes that he

the

challenged

present claims

statements.

under the plain

did not object at

Consequently,

trial to

we review

error standard.

his

Olano, 507
_____

U.S.

at

733-34.

In

so doing,

we

factors, "including the frequency

case

against

and the

the defendant."

a number

and deliberateness of

prosecutor's comments, the strength

judge's instructions,

consider

of

the

and clarity of the trial

strength of

the government's

United States v.
______________

Morales________

Cartagena, 987 F.2d 849, 854 (1st Cir. 1993); see also United
_________
________ ______

States v. Tajeddini, 996 F.2d 1278, 1282 (1st Cir. 1993).

______
_________

The

first

disputed

statement,

that

Mark Duggan

testified that he saw Smith with a .22 or .25 caliber pistol

__________________________

on

the night

in question, is

evidence that can be termed a

the only

characterization of

misstatement.

We do not find,

however, that the prosecutor's description strayed far enough

from Duggan's actual testimony, "a small caliber handgun," to

amount to plain error.

handgun mentioned in

the .25 caliber

However described,

the small caliber

Duggan's testimony was

casings recovered after

consistent with

the shooting.

The

prosecutor's mistake was not so serious as to imply bad faith

or deliberate

prevarication.

Also, the case

against Smith

was strong, and the court properly instructed the jury on the

effect of the lawyer's statements.

it

was,

fell well

below the

The misstatement, such as

plain

Morales-Cartagena, 987 F.2d at 854-55.

_________________

-2222

error threshold.

See
___

As for the three remaining

least two were amply

rested on

challenged remarks,7 at

supported by the record.

Veneau's testimony that

Statement #2

the government

him and helped him move out of South Boston, and

that he had

not gone to the police for fear of the defendants.

#4 was a fair

Lieutenant

inference from the testimony of

French.

no way amounts to

Statement #3

plain error.

protected

Statement

Boston Police

is more problematic but in

The government argues in its

brief that the prosecutor referred to the jury as having "sat

________

up there" and seen the witness's, Tetreault's, fear.

is what the prosecutor

since

said, the remark was unexceptionable,

the jury had observed Tetreault on the stand and could

determine whether or not she exhibited fear.

however,

indicates the

prosecutor as

that "he sat up there" and

the

"he"

garbled,

had

If this

referred

to

The transcript,

actually having

said

saw fear in Tetreault's face.

Veneau,

the

comment

was

If

arguably

since by the time Veneau testified at the trial, he

already retracted

Tetreault had been

____________________

earlier misstatements to

absent.

But,

police that

even accepting the

latter

7.

Statement #2:

The government stated

that Walter Veneau

could not go back to South Boston after he testified.

Statement #3:
did not tell the
the shooting

The

government stated that Walter Veneau

police his girlfriend was

because "he sat up

at the scene

there and saw the

of

fear" on

her face.
Statement

#4:

found the shells

The government

stated that

where Walter Veneau told them

the police
the shooting

had taken place.

-2323

version, the

unobjected-to remark was harmless

and fell far

short of constituting plain error.

G.

The Meaning of "Ammunition"

___________________________

Smith contends on

through certain

while

the

verdict

in

trial

the

appeal that the

district court,

unobjected-to instructions given to the jury

was

in process,

government's

favor

ammunition and interstate commerce.

district court wrongly told

erroneously

on

the

directed

elements

of

According to Smith, the

the jury that the casings

which

were received into evidence were ammunition, and had traveled

in interstate commerce.8

Such instructions, according to the

defense, had the effect of directing the jury to find against

Smith on two essential

States v.

elements of the offense.

Argentine, 814

F.2d 783,

788-89 (1st

See United
___ ______

Cir. 1987)

______

_________

(quoting United States v. Natale,

______________
______

526 F.2d

1160, 1167

Cir. 1975), cert. denied, 425 U.S. 950 (1976)).

____________

concludes

that the

district

(2d

Smith, thus,

court committed

plain

error,

requiring the reversal of his conviction.

The district court made

the

course

of

certain

the challenged remarks

mid-trial

comments

to

the

in

jury

____________________

8.

Smith

challenges the

court in the course of

following statements made

remarks to the jury during

relative to evidence on the cartridge casings:

may

have been raised in

cartridge
law.
found

the trial

"Despite what

the opening statements

case, standing alone,

by the

to you, the

is ammunition under federal

So the cartridge case originally was made out of state,

its way

into Massachusetts.

Whether

or not

reloaded, it still moved in interstate commerce."

it was

-2424

intended,

among

misstatement

by

definition of

casings

term

things,

Yanovitch's

"ammunition."

were not

definition

other

to

counsel

ammunition, an

means

an

earlier

relative

Counsel had stated

set forth in 18 U.S.C.

'ammunition'

correct

to

that shell

assertion contrary

921(17)(A) (1996):

ammunition

or

the

cartridge

to the

"The

cases

. . . ."

Before

correcting

indicated to the jury

law,

not

as

to

the

final charge

to the

informed the jury of the

a reasonable

of

evidence.

of

accurate, extensive

H.

If

trial

counsel

asked for it at the

jury,

the district

court

wished

time.

In

court clearly

government's burden to prove beyond

doubt defendants' possession of

the movement

points.

the

that it was instructing them as to the

clarification, he should have

its

counsel,

the ammunition

in

ammunition and

commerce, and

and clear instructions on

gave

each of these

We do not find plain error.9

The Meaning of "In or Affecting Commerce"

_________________________________________

Smith challenges the

instruction on the

meaning of

accuracy of the

the phrase

court's jury

"in or

affecting

commerce."

As

he did

review is for plain

not object

error only.

After considering the

to the

instruction, our

Olano, 507
_____

instruction, and

U.S. at 733-34.

the prevailing

case

____________________

9.
the

As noted previously, there was uncontested

cartridge

Arkansas,

casings

permitting the

found

at

inference

interstate.

-2525

the

scene

that they

evidence that
were made

in

had traveled

law, we conclude that

the court did not commit

error, plain

or otherwise.10

As part

that

possession

commerce."

of its case,

of

the

18 U.S.C.

the government had

ammunition was

"in

or

(1977), held

that evidence

crossed

state lines

element

of the

is legally

statute.

above, contends that it

jury

to decide

lines could

affecting

922(g)(1) (1976 & Supp. 1976).

Supreme Court in Scarborough v. United States, 431

___________
_____________

575

to prove

Smith,

showing that

sufficient to

while

U.S. 563,

weapon had

satisfy this

not disputing

should have been left solely

whether the

establish that

ammunition's crossing

possession was "in

The

the

to the

of state

or affecting

commerce."

This argument

the court,

law.

runs counter

not the jury,

Here,

the

to the

is responsible

court's

instruction

principle that

for declaring

finds

support

the

in

____________________

10.

The court

government
firearm,

instructed the

has to prove
taking

the

that

carried

they have

firearm charge,

time

prove beyond

after the

till the

to prove

the items across a

does have to

firearm or

time when

follows:

beyond a reasonable

taking the ammunition charge, was

mean

jury as

and

doubt that the

the

in commerce.
Mr.

That doesn't
Mr. Smith

But the government

a reasonable doubt
ammunition was

the person you're

ammunition,

Yanovitch or

state line.

"So the

that at

some

manufactured, up

considering possessed

it, if you find that one or both of them did possess it, that

the

item,

the firearm,

or

ammunition,

or

both, were

in

commerce, which means it went across a state line . . . ."

-2626

Scarborough
___________

Scarborough.11
___________

and

in

circuit

precedents

spawned

by

The court properly instructed the jury on the

meaning of the phrase "in or affecting commerce."

Smith

also

claims

that

the

court

should

have

required

the

jury

to

interstate commerce,

find

"substantial"

in light of the

effect

on

Supreme Court's recent

decision

in United States v. Lopez, 115 S. Ct. 1624, 1629-30

_____________
_____

(1995).

In Lopez, the Court struck down the Gun-Free School

_____

Zones Act,

18 U.S.C.

922(q) (Supp. 1996), which prohibited

a person from possessing

the

grounds that

Commerce

it

Clause.

a gun while in a

exceeded Congress's

Lopez,
_____

115 S.

Ct.

"school zone," on

powers under

at 1630-31.

the

Smith

alleges that the Court's opinion in the Lopez case undermines

_____

the proposition, stated in

Congress intended

Scarborough and its progeny, that

___________

nothing more

interstate commerce.

than a minimal

contact with

Consequently, Smith concludes

that the

district court committed error when it failed to instruct the

jury that the government

ammunition

at

issue

had the burden of proving

substantially

affected

that the

interstate

commerce.

____________________

11.

United States v. Gillies, 851 F.2d 492, 494 (1st Cir.),

_____________
_______

cert. denied, 488 U.S. 857 (1988); see also United States v.
_____________
________ _____________
Carter,
______
"it

981 F.2d

is sufficient

645, 648 (2d Cir. 1992)

that the

received by defendant had

(instruction that

firearm allegedly

possessed or

at some point previously travelled

across a state line" upheld in Section 922(g)(1) case), cert.

_____
denied, 507 U.S. 1023 (1993).
______

-2727

Smith's reliance on Lopez is misplaced.

_____

statute

1996)

at issue in

contains

ensures,

through

Lopez, Section 922(g)(1)

_____

specific

jurisdictional

case-by-case

possession in question affects

as

here,

the

government need

jurisdictional

only prove

commerce identified in

inquiry,

(1976 & Supp.

element

which

the

firearm

interstate commerce.

Where,

element

that

Unlike the

is

the minimal nexus

Scarborough.

present,

the

to interstate

See Diaz-Martinez,

71

___________

F.3d at 953.

I.

Smith's argument is without merit.

The Sufficiency of the Government's Evidence

____________________________________________

Smith

insufficient

determine

reasonable

favorable

could find,

has

___ _____________

argues

evidence.

whether,

In

after

to

his

conviction

reviewing this

viewing

inferences drawn

the

in

case, a

States v. O'Brien,
______
_______

must

and

the light

all

most

that the prosecution

the offense.

14 F.3d 703, 706 (1st Cir.

this court defers to

claim, we

on

rational factfinder

beyond a reasonable doubt,

elements of

rests

evidence,

therefrom,

the government's

proved the essential

doing,

that

the jury as

1994).

United
______

In so

to all credibility

judgments, and need conclude only that the evidence, taken in

its

entirety,

supports

Because the evidence

judgment

in this case

of

conviction.

was more than

Id.
___

sufficient

under this standard, Smith's claims are without merit.

Smith argues that there was no evidence

indicating

that he possessed a handgun on the evening in question, hence

-2828

no

proof that he possessed ammunition as well.

to the fact

that, while Veneau and Tetreault

that the man

in the back seat handed an

Smith points

both testified

object to Yanovitch

and that the latter proceeded to shoot Viens, they did not go

so far as

together

to state that Smith passed a firearm to Yanovitch.

However,

the

with the

reasonable inferences

therefrom and

testimony of

Veneau

and Tetreault,

that can

be drawn

from the other evidence, is ample to establish

Smith's involvement.

Veneau said

that he

never saw

Brian

Smith with a gun, but that was because he did not know anyone

named

middle

Brian Smith.

Veneau's

assertion that the

man in the

passed what Veneau believed to be a gun to Yanovitch,

when

coupled with

evidence that

middle, supports the

conviction.

Smith was

the man

Tetreault testified

in the

that

she did not recognize the object while it was being passed to

Yanovitch, but noted

Yanovitch

that she

got out of

conjunction with

the subsequent

saw that

the car with

all the

This

other evidence at

shooting and

seen Smith with a handgun

it.

it was

a gun

when

testimony, in

hand, including

Duggan's testimony that

he had

earlier, was adequate to establish

Smith's guilt beyond a reasonable doubt.

J.

Four-Level Increase in Smith's Guideline Sentencing

________________________________________________________
Range
______

On

appeal, Smith

that served as the

challenges the

factual findings

foundation for the four-level enhancement

-2929

of

his Guideline

Sentencing Range

("GSR").

Since Smith's

counsel properly objected to these findings at the sentencing

hearing,

this

court's review

is

limited

to clear

error.

United States v. Powell, 50 F.3d 94, 102-03 (1st Cir. 1995).

______________
______

Under

clearly

the

circumstances, "we

erred

in finding

that

ask

the

only

whether the

government proved

court

the

disputed

103.

fact by a preponderance

of the evidence."

Id. at
___

We hold that the factual findings were amply supported

on the record and that

the court did not commit clear

error

in assessing a four-level increase to Smith's GSR.

Smith alleges that the district court clearly erred

when

it increased

transferred

the

his GSR

firearm

another felony offense.

based upon

to Yanovitch

its finding

in

connection

2K2.1(b)(5) (Nov. 1995).12

that

presented

evidence

especially as there was

with

United States Sentencing Commission,

Guidelines Manual,
_________________

the

that he

at

trial

was

Smith claims

insufficient,

an absence of proof that

Smith knew

that Yanovitch intended to use the gun to shoot Viens.

The evidence

at trial was sufficient

to show that

Smith

at

and Viens became involved in a dispute about a firearm

a Boston

bar; that

the two men

left the

bar together;

____________________

12.
used

U.S.S.G.
or possessed

2K2.1(b)(5) provides:
any firearm

with another felony offense;

firearm or
believe

ammunition with

that it

would be

"If

the defendant

or ammunition

in connection

or possessed or transferred any

knowledge, intent, or
used

in connection

felony offense, increase by 4 levels . . . ."

-3030

reason to

with another

that,

when Smith

reached inside

his jacket,

Viens punched

him; and that Smith was pulled into the back seat of the car,

from where he

shoot Viens.

court

handed a

From

to infer

gun to Yanovitch,

who proceeded

this, it was reasonable for

that

Smith gave

his

to

the district

handgun to

Yanovitch

intending and expecting the latter to use it against Viens.13

As this

was a reasonable and

permissible interpretation, it

justified the four-level enhancement of Smith's GSR.

K.

The Attachment of the Sentencing Hearing Transcripts to

________________________________________________________
Smith's Presentence Report
__________________________

At the sentencing hearing, Smith asked the district

court

to order

deleted from

the PSR

reference

to certain

state convictions.

These

to the hearing, and,

sentenced

as

an

convictions had been vacated prior

as a result, Smith

armed career

criminal,

924(e)(1) (Supp. 1996), although

as a felon-in-possession.

record

during the

see
___

hearing

set aside

be

18 U.S.C.

he could still be sentenced

The district court

sentencing

convictions

had been

containing

its remarks

to

indication

that

convictions

these

no longer could

stated on the

that the

and ordered

be attached

the transcript

to

were

challenged

the PSR

no

as

an

longer valid.

____________________

13.

The district court

totality

of

the trial

held as follows:
record

. . . that

sufficient to

warrant a finding

the weapon to

Mr. Yanovitch,

"I rule

the evidence

that when Mr.

he well knew

that it be used to assault Mr. Viennes [sic].

on the
is

Smith passed

and he

intended

Not any self-

defense, but in furtherance of the altercation.

fair preponderance

of the

evidence that that

I find

by a

was precisely

what was in Mr. Smith's mind, and I add four levels . . . ."

-3131

Deeming

attachment

of

the

transcript to

be

an

adequate

corrective, the court refused to direct the probation officer

to revise the PSR itself.

Smith did

not object

to the court's

procedure at

the

uses

time, but on appeal complains that the Bureau of Prisons

these PSRs to allocate the

institutions and programs.

personnel

is not likely

hearing transcript.

prison population among its

According to Smith, the Bureau's

to pay attention

to the sentencing

Consequently, Smith argues

been unduly prejudiced

by the

that he has

district court's

order.

He

asks us to order proper corrections to be made to his PSR.

Federal

requires a

Rule

of

Criminal

sentencing court to address

Procedure

each relevant matter

in the PSR which is controverted by the parties.14

must

make either a finding

necessary.

Not

intended as

32(c)(1)

or a determination

an "onerous"

The court

that none is

requirement, the

sentencing court's determinations "can be simply entered onto

form

which is

Committee

Notes

then appended

to

Fed.

R.

to

Crim.

the report."

P.

Advisory

32(c)(3)(D)

(the

predecessor of Fed. R. Crim. P. 32(c)(1)), 1983 Amendments.

____________________

14.

The relevant text of Rule 32(c)(1) is as follows:

each

matter

controverted,

the

court must

make

either

finding on the allegation or a determination that no

is

necessary because

taken into account

written record

the

in, or

controverted matter
will not affect,

of these findings and

"For
a

finding

will not

be

sentencing.

determinations must be

appended to any copy of the presentence report made available

to the Bureau of Prisons."

Fed. R. Crim. P. 32(c)(1).

-3232

In United States v.
______________

Bruckman, 874 F.2d

________

57, 63-64

(1st Cir. 1989), this court noted that the purpose behind the

Rule's writing requirement is

process rights

and to

clear record of the

complain that

provide

the reviewing

disposition below.

the district

vacated convictions so

case.

to protect the defendant's due

court with

Smith does

court mishandled or

not here

misread the

as to sentence him improperly in this

Rather, he fears that appending the transcript, rather

than physically revising the

alert future prison

PSR, is an insufficient way

authorities to

the true

status of

to

the

prior convictions.

we

cannot say.

district

Precedent

transcript

Whether

Smith did

judge,

who

indicates

or not this is a

realistic fear

not raise this concern before the

was

best

that

the

situated

appending

will comply with the Rule.15

of

on

it.

hearing

If, in a particular

there are

doubt

that the district court, if asked, would look into the

more, we

help of the probation officer.

Smith did not raise

so, we can find no

it

to do

pass

case,

matter, with the

practical reasons

to

the issue below; absent his

error cognizable on appeal.

have no

As we say,

having done

We

add that

is still not too late for Smith's concerns to be attended

____________________

15.

See
___

Bruckman, 874 F.2d at 65; see also United States v.

________
________ _____________

Santamaria, 788 F.2d 824, 829

__________
States
______

v.

1985), for
the

(1st Cir. 1986) (citing United

______

Castillo-Roman, 774
______________

F.2d

1280,

the proposition that appending

sentencing

court's

determinations

1285 (5th

Cir.

the transcript of
satisfied

the

requirements of the Rule).

-3333

to

administratively

which we cannot

assuming

ascertain from

they have

any legitimacy,

the record before

us

by

simply appending a suitable notation

status

measure

of the prior convictions.

is necessary

we leave

to the PSR updating the

Whether this or some other

entirely to

the appropriate

authorities.

L.

Yanovitch's Sentence
____________________

Yanovitch

challenges the factual

the

district court as

his

claims for clear error.

are

satisfied

sentencing

that

court's

a basis for his

the

Powell,
______

record below

factual

findings made by

sentence.

We review

50 F.3d at 102-03.

amply

findings and

supports

that

We

the

Yanovitch's

allegations are baseless.

Yanovitch contends

that the evidence at

trial was

insufficient to establish that he attempted to shoot Viens in

the

head,

and that

anything,

he

Yanovitch

had the

argues,

intent

the

to kill

evidence

him.

at

demonstrated that he acted in the heat of passion and in

absence

of

according

malice

aforethought; there

to Yanovitch, that

mind for attempted murder.

found

that Yanovitch's

was

he had the

If

trial

the

no indication,

necessary state of

Nevertheless, the district court

conduct conformed

to the

charge of

assault with intent to murder,

and, based upon that finding,

sentenced

2A2.1.

argues

him under U.S.S.G.

that

a reasonable

person

-3434

would

On appeal, Yanovitch

conclude that

the

incident in question was

an

an aggravated assault or,

at most,

assault with an attempt to commit manslaughter, either of

which would require application of U.S.S.G.

Yanovitch's

argument

light of the evidence

his PSR,

Boston

and the tape

Police.17

sentencing

merits little

discussion in

at trial which was also

summarized in

recording of Veneau's

interview with

This

evidence

court's determination

with the intent

2A2.2.16

to kill him.

obviously

supports

that Yanovitch

The court

the

shot Viens

did not clearly err

when it sentenced Yanovitch pursuant to U.S.S.G.

2A2.1.

Affirmed.
________

____________________

16.

While

2A2.1 (Assault with

Attempted Murder) has

a base

Intent to Commit

offense level of

22,

Murder;
2A2.2

(Aggravated Assault) has a base offense level of 15.

17.

The PSR stated, in relevant part: "Yanovitch got out of

the car, fired

one round into the ground, then

Viens and shot at Viens at least

the

abdomen and

once in

walked up to

twice, striking him once in

the upper

thigh.

Yanovitch then

pursued

Viens up the

street, put the

gun 2 to

3 feet from

Viens' head, fired again, but missed."

Veneau

stated,

in

pertinent

part:

"

. . . when

looking back I see Gerry Yanovitch 'bout three feet, two-andhalf

feet behind

looks like

Bobby [Viens]

a small calibre

hear another one, bang.

pointing a,

something that

handgun towards Bobby's

There's five shots, all

heard -- miss Bobby . . . ."

-3535

head, I

together I