USCA1 Opinion

February 8, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________

No. 95-1140

UNITED STATES,

Appellee,

v.

LAWRENCE M. LANOUE,

Defendant.

____________

ERRATA SHEET

The

opinion of this court

issued on December

15, 1995, is

amended as follows:

Cover Sheet:

Change "Defendant." to "Defendant, Appellant."

January 11, 1996

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

FOR THE FIRST CIRCUIT

____________________

No. 95-1140

UNITED STATES,

Appellee.

v.

LAWRENCE M. LANOUE,

Defendant, Appellant.

____________________

ERRATA SHEET

The

opinion

of

this

Court

issued

on

December

15,

1995,

corrected as follows:

On page 13, line 21 -

delete "0" at the beginning of the line.

On page 46, line 3 - insert the word "doubt" between

and "that".

"reasonab

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

FOR THE FIRST CIRCUIT

____________________

No. 95-1140

UNITED STATES,

Appellee.

v.

LAWRENCE M. LANOUE,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Bownes, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

____________________

David L. Martin, for appellant.

_______________

Margaret E. Curran, Assistant United

___________________

Sheldon Whitehouse,
___________________

United States

States Attorney, with

Attorney,

and

James H. Leav
______________

Assistant United States Attorney, were on brief for appellee.

____________________

December 15, 1995

____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Appellant

Lawrence

M. Lanoue

(Lanoue) appeals his convictions

interstate

U.S.C.

transportation

2312 (Count

of

V),

stolen

interstate

and sentence for

motor

vehicle, 18

transportation of

firearm with an obliterated serial number, 18 U.S.C.

(Count

VI), and

U.S.C.

to

its

conspiracy to

371 (Count I).

government

Lanoue's own statements

of

Title III of the

Act, 18 U.S.C.

from

him

declare a mistrial

when the

critical defense

witness with

which were intercepted

in violation

Omnibus Crime Control

2510-2521 (Title

in violation

entitled

because the trial court abused

refusing to

cross examined

922(k)

offenses, 18

Lanoue contends that he is

a new trial on all counts

discretion by

commit federal

of

Fed.

and Safe Streets

III), and then

R. Crim.

P.

withheld

16(a)(1)(A).

Lanoue also contends that

there was insufficient evidence to

convict

and VI,

him of

Counts I

improperly enhanced

his sentence

and that the

trial court

based on conduct

of which

the jury had acquitted him.

We vacate Counts I

trial, affirm Count VI, and

and V and remand them for a new

order a sentence on Count VI

60 months imprisonment.

I.
I.

BACKGROUND
BACKGROUND

A.
A.

Relevant Facts
Relevant Facts

1.

The Government's Case

-22

of

The government's theory

and

his

co-defendant

Oldsmobile

Albert

Firenza, and

that

at trial

Cole

was that

(Cole)

they and

their

stole

Lanoue

1986

co-defendant

Patrick Meade (Meade) used the car in an attempted robbery of

an

armored car

primarily of

fifty

courier.

The

government's case

the testimony of fourteen

FBI agents and Rhode

consisted

of the approximately

Island State police officers who

conducted a massive land and

air surveillance of Lanoue

and

the Oldsmobile and assisted in his arrest.

On December

tracking device to

lot

of

the

Oldsmobile

agents attached a

a 1986 Oldsmobile Firenza located

American

Massachusetts.

17, 1993, eight FBI

International

Leasing

in

in the

Worcester,

On December 19, 1993, Lanoue and Cole brought

to a

farm in

Pascaog,

Rhode Island.

The

farm's owner, Kenneth Gareau (Gareau), was a friend of Cole's

who

repaired

repair

cars.

He testified

the front end, that

that

Cole asked

he said he could get

him to

to it in a

week or so, that it "looked like" Cole took the license plate

off the Oldsmobile and put it in the trunk, and that Cole and

Lanoue then departed.

American

Oldsmobile stolen

International

on December

Leasing

21, 1993.

reported

the

Agents conducting

surveillance from an airplane observed Lanoue and Cole return

to the

farm on the morning

of December 23,

-33

1993, and drive

the

Oldsmobile

to

the

Ames

Plaza

in

Bellingham,

Massachusetts, where they met Meade.

While the

defendants were parked

between a

parlor and a liquor store in a lot adjacent to

pizza

the Ames lot,

an unmarked armored car, that appeared to be an ordinary Ford

Aerostar van, parked

Ames store.

the Ames store.

in front

of the main

entrance to

uniformed courier exited the van

and entered

Several minutes later, Lanoue and Cole drove

from the adjacent lot to the Ames lot and parked.

arrested as he walked

store.

He had

obliterated

arresting

"I am

a loaded

38 caliber

in

officers testified

You got

Lanoue was

towards the main entrance of

serial number

Mitch.1

the

me.

Colt revolver

his waistband.

that Lanoue

I am

the Ames

with an

One of

the

immediately said:

gone for life.

I have a

piece."

Another testified that

the other vehicles

That's why you're

were, he stated:

here.

testified that after Lanoue

"I wonder

when he asked

who the rat was

testified that Lanoue

am here

Lanoue where

"You know

alone."

everything.

Another

agent

was taken into custody he

said,

on this job."

said that

And another agent

he would die

in prison

no

matter how long his sentence was because he was 72 years old.

Cole was

stolen

arrested in the Oldsmobile,

license plate.

keys were in

it.

The ignition was not "popped" and the

Meade was

arrested in his own

____________________

1.

which bore a

Lanoue was known as Mitch.

-44

car on the

other

side of

the

lot with

caliber revolver in his pocket.

a loaded

Smith and

Wesson 36

-55

2.

The Defendant's Case

Although

the

law

enforcement

witnesses

did not

offer to explain how they came to attach a tracking device to

the

Oldsmobile

and

thereafter, cross

follow

its

and

Lanoue's

movements

examination revealed that an informant had

provided FBI Agent Brosnan,

the case agent, with information

that Lanoue and others planned to steal the car and use it in

an armored car robbery.

The

defense

Richard Laraviere

provided and

was

that

(Laraviere), and that

upon which

rested, was false.

theory

the

was

the information

he

investigation and

According to the

the Oldsmobile from Laraviere,

the informant

prosecution

defense, Lanoue bought

who then falsely informed the

FBI that Lanoue was planning

to steal the car and use

it in

an armored car robbery in order to obtain favorable treatment

on

theft charges pending against

defense suggested

that the

him in Massachusetts.

government was eager

Laraviere and assemble a small

in

government had

was the only

1991.

to believe

army to arrest Lanoue because

Lanoue had been found not guilty in a case tried

prosecutor

The

The

defense

not called Laraviere to

witness who could

emphasized

by the same

that

the

testify, although he

corroborate its theory

that

Lanoue stole the Oldsmobile.

Lanoue testified and called Charles Carron (Carron)

as a witness

to corroborate

his own testimony.

-66

They

both

testified in effect as follows.

was

helping

Laraviere

Carron

arrived.

real estate and

previously

declined

wanted

remove

debris

Laraviere was

had once owned

had offered

to buy.

On December 17, 1993, Lanoue

to sell

from

his

a millionaire

a used car

Lanoue a

house

when

who owned

dealership.

car which

He

Lanoue

On this occasion, Lanoue mentioned that he

to buy a car

for his daughter.

Laraviere responded

that one of his

wanted

to

tenants had abandoned an Oldsmobile

sell and

said that

it

was located

that he

at American

International Leasing in Worcester, which he implied he owned

or

partially

owned.

International Leasing,

employee

there,

The

three

drove

Laraviere obtained

and they

took

to

American

the keys from

the Oldsmobile

for

an

a test

drive.

Carron testified that upon their return to the lot,

he observed Lanoue and Laraviere having a discussion and then

saw

Lanoue remove

Laraviere.

a price of

$200,

money

from his

wallet

and hand

it

to

Lanoue testified that he and Laraviere agreed on

$500, that

he gave Laraviere

a down payment

of

and that they agreed that Lanoue would pay the balance

and take the car on Sunday, December 19.

Lanoue testified

drove

that on December 19,

to American International

Leasing in

he and Cole

Lanoue's truck,

that he paid Laraviere the $300 balance and then drove off in

the

Oldsmobile with

Cole following

-77

in the

truck.

Lanoue

testified

Island,

that

as he

drove

he noticed that

front

end.

He and

Gareau

to

picked

up the car

the Oldsmobile

there was something

Cole therefore

be repaired.

On

on the way

had not

worked on

the

to Rhode

wrong with the

took the

December

Oldsmobile to

23, Lanoue

to the Ames

planned to go Christmas shopping.

Gareau

back

and Cole

Plaza where they

Lanoue soon found out that

car and

took it

to another

garage, but the person he wanted to look at it was not there.

He and Cole then proceeded

to the Ames Plaza where they

Meade.

As

towards the

planned

to buy

Lanoue walked

watch, he

was

Ames store

arrested.

After

met

where he

Lanoue

rested, Cole testified in his own behalf, confirming Lanoue's

account of events on December 19 and 23.

Lanoue

protection,

before

testified

explaining

that his

and that the police

because he had a criminal

he had cleaned the

its

obliterated.

life

carried

had

but did

gun

he reported it

Lanoue acknowledged

not deny

for

been threatened

had laughed when

record.

that he

that

obliterated

knew

it was

Lanoue admitted to stating, "I have a piece on

that when an

responded that he was

he

he

revolver, denied that he had

serial number,

me," and

that

was arrested.

agent asked him

who was with

alone, meaning that he was

He denied

making

government witnesses attributed to him.

-88

the other

him he

alone when

statements

Lanoue

that

order

and Carron

Laraviere provided

to

charges.

gain

Carron

favorable

also gave

false information

treatment

testified that

boating equipment in

testimony indicating

his garage.

on

in this

pending

Laraviere had

When

case in

criminal

once stored

Carron later learned

that it was stolen, he reported it to the police, who removed

the property and told him that Laraviere had a reputation for

claiming that

property

he had

stolen

had been

stolen

by

told

him

someone else.

Lanoue

shortly

that

before his own arrest

fifty-seven

would soon

those

testified

counts of

have to

charges

pursuant

something to avoid it.

that he had

theft in

begin

Laraviere

been indicted on

Massachusetts, and

serving a

to

had

that he

two-year sentence

plea,

unless

he

could

because

that he believed

he

falsely

do

To that end, Laraviere offered to pay

Lanoue to frame the witness against him in that case.

testified

for

Laraviere had

informed

the

not gone

government

Lanoue

to jail

that

Lanoue

planned to steal the Oldsmobile and rob an armored car.

Carron testified

that he

had visited

Lanoue once

after

his arrest

Donald

W. Wyatt

Island.

police

while

Detention

Shortly

awaiting

Center in

thereafter,

detective visited

subpoenaed him

Lanoue was

him,

two FBI

-99

Central Falls,

agents

refused to

to testify at Lanoue's

trial at

the

Rhode

and a

state

leave his

home,

trial, and threatened

that if he did not testify against Lanoue, they

it

that his

pension check

and his

would see to

girlfriend's disability

check or her job at the post office were taken away.

-1010

B.
B.

Proceedings Below
Proceedings Below

Lanoue, Cole and Meade

redacted

indictment.2

All three

were charged in a six-count

were charged

in Count

with conspiracy to commit federal offenses, 18 U.S.C.

in Count

II with

robbery,

Hobbs

conspiracy to

Act, 18

U.S.C.

interfere with

1951;

371;

commerce by

in Count

III with

attempt to interfere

U.S.C.

with commerce by robbery, Hobbs Act, 18

1951; and

in Count

IV with

using and carrying

firearm during and in relation to an attempt or conspiracy to

commit

robbery,

Lanoue and

18 U.S.C.

Cole with

vehicle, 18 U.S.C.

alone

with interstate

abetting.

also

charged

18 U.S.C.

18 U.S.C.

the

1994, the jury

a stolen

922(k).

with an

Counts III,

with

aiding

and

2.

24, 1994.

convicted Lanoue of

acquitted him of all

his

a firearm

defendants

The trial began on October

4,

V charged

2312, and Count VI charged Lanoue

transportation of

obliterated serial number,

and

Count

interstate transportation of

motor

IV

924(c)(1).

co-defendants of

On

Counts I, V

robbery-related charges, and

all charges.

On November

November

and VI,

acquitted

10, 1994,

Lanoue

moved for judgment of

acquittal on Counts

I and VI,

____________________

2.

The

grand

January 5, 1994.
count

jury

returned

A redacted

the

original

indictment

indictment was filed

on

when one

was dismissed by the government with leave of court on

August 17, 1994.

-1111

which was denied on December 19, 1994.

On

January 13, 1995,

the court sentenced Lanoue to 175 months in prison.

II.
II.

DISCUSSION
DISCUSSION

A.
A.

The Discovery Violation

The Discovery Violation

Lanoue

reversed because

contends

that

his

the prosecutor

cross examined

concedes

it failed to disclose in violation of Fed. R. Crim.

and the

which

Carron with

own

16(a)(1)(A)

statements

should be

Lanoue's

P.

recorded

convictions

pre-trial

the

discovery

government

order.

16(a)(1)(A) provides in relevant part:

Upon

request

of

defendant

the

government must disclose to the defendant

and

make

available

for

copying, or photographing:

inspection,
any relevant

Rule

. .

recorded statements

made by

defendant, or copies thereof,

possession,

custody,

government,

the

existence

known,

by

the

or

diligence

may

within the

or control

of the

of which

exercise

become

the

known,

of
to

is
due
the

attorney for the government . . . .

The

trial

court's

government to

subject

to

discovery

disclose "[a]ny

disclosure

"[w]hether the

wire or

pretrial

order

statements

pursuant to

Rule

required the

of the

defendant

16(a)(1)(A)," and

government counsel's file indicates

oral communications have been

that any

intercepted."

Lanoue

contends that he was incurably prejudiced by the government's

use

of his

statements and

that the

trial court

erred in refusing to declare a mistrial.

therefore

-1212

1.

Cross Examination of Carron with Lanoue's

Recorded Statements

Carron's

parts.

cross

On Thursday,

examination

October 27, the

proceeded

in

prosecutor opened the

first part by accusing Carron of threatening Laraviere:

Sir,

didn't the FBI

they

were at

tell you the reason

your premises

three

was because

you threatened an informant in this case?

Did

you

ever

threaten

Mr.

Richard

Laraviere?

You ever threatened [sic] anyone?

Carron

answered

"No"

to

each

prosecutor attempted to impeach

Lanoue

case,

during

had

and whether

the visit.

him to visit him

so,

questions.

The

Carron's denial by asking if

had told him that Laraviere was the informant in this

if Lanoue

prison,

of these

then demanded

he and

that

Lanoue had

Carron confirmed

he visit

him

in

discussed Laraviere

that Lanoue had invited

in prison in August of 1994 and that he did

but denied that

they had

discussed Laraviere.

Carron

exhibited a poor memory for dates, but otherwise held up well

during

this

part of

the

cross examination.

When Carron

stated that he could not

fifteen

years,

swear that he had known Lanoue

years but was sure

the prosecutor

he had not

began reading

for

known him for thirty

Lanoue's words

from a

document while, in the court's words, "brandishing" it at the

witness:

Did Mr. Lanoue ever tell you that he

has known you for thirty years?

-1313

No, he never did.

Did

Mr. Lanoue ever tell you not to trust the

cops.

They

know

that's why he

who the

informant is

wanted you to go

and

on August the

twenty-first to meet him?

No.

He

didn't tell you,

sir --

specifically, on

August the 20th of 1994, did Mr. Lanoue say to

you, "Let

me tell

trust the

cops.

you something.
You should

forced it out of them.

You don't

know that.

We

They got the informant

from up north near the Worcester area"?

Mr. Martin:

directed

I object.

I don't remember that.

The

court

counsel

did

not

to approach

sustain

the

the

bench.

objection,

The

but

prosecutor

admitted that he had been reading Lanoue's statements from

transcript of a recorded telephone

to

Carron from

the

call that Lanoue had made

Wyatt Detention

Center while

trial, and that he had not disclosed it.

prosecutor

whether the

use of

his questions

Defense counsel objected to

the conversation because the

it in violation of Fed.

awaiting

The court asked the

document corroborated

and he replied that it did.

the

government had withheld

R. Crim. P. 16 and the

court's pre-

trial discovery order, and requested a copy of the transcript

and a recess during which he could review it.

argued

The prosecutor

that defense counsel was not entitled to a recess and

that he was permitted to use the conversation

had committed perjury,

because Carron

it was retrieved in connection with a

-1414

separate investigation of

not

the

prosecutor

subject,

fruit

to

did

of

continue

not

witness intimidation,

wiretap.

his

admonish

The

cross

court

and it

was

directed

the

examination

him, strike

the

on another

questions

or

testimony, or give a curative instruction.

Part two

of Carron's cross

examination proceeded.

In contrast to

part of

his apparently confident answers in the first

his cross examination, Carron

disavowed any ability

to fix a date or time period on any event, expressing concern

that

the

prosecutor

committing perjury.

his direct

actually

was

attempting

trap

him

He backed away from important

testimony, for example,

seen Lanoue

to

hand

parts of

now denying that

Laraviere money

into

he had

after the

test

drive.

After

recess, defense

the

court

excused

counsel moved

the jury

for a mistrial,

the prosecutor had violated Fed. R. Crim.

the

for

lunch

arguing that

P. 16(a)(1)(A) and

pre-trial discovery order, that Carron's credibility had

been irreparably damaged,

and that he

had been deprived

of

the

opportunity to prepare Carron with the statement or make

an informed decision whether

prosecutor argued that

conversation under

trial

to call him as a

he had no

Fed. R. Crim

discovery order

until Carron testified

because

witness.

The

obligation to produce

the

P. 16(a)(1)(A) or

it did

not become

the pre-

relevant

inconsistently with it and it was not

-1515

a wire intercept.

The court ordered an

for the

day,

following

and

excused

evidentiary hearing

the

jury

until

the

following Monday.

At

Brosnan,

the

hearing

on

Friday,

October

Agent

the FBI agent in charge of the case against Lanoue,

testified that on August 22, 1994, he requested

from

28,

the

Wyatt

conversation

Detention

between Lanoue

Center

and Carron

and received

cassette

tape

that took

of

place on

August 20, 1994, which he had transcribed and provided to the

prosecutor.

Agent

Brosnan

testified that,

since Lanoue's

arrest and indictment and as part of his investigation of the

pending case, he had

gone to the Wyatt Detention

Center and

been permitted to

hear

and

listen to

obtain

conversations

of 1994, he

recordings

of

an effort

Lanoue's

requested that

the facility keep

to

telephone

with Carron, but that he found none.

calls made by Lanoue.

spot

various tapes in

In April

track of

He was told that it would

all

be done by

checking, but was not notified of any of Lanoue's calls

other than that of August 20.3

In the

that

that

August 20 conversation, Lanoue

he had discovered during

Laraviere

was

the

told Carron

a recent hearing

source

of

the

in his case

government's

____________________

3.

The primary purpose of the hearing was to resolve whether

the conversation
Jennifer

Egan,

Center, also

was intercepted in violation

Chief of

testified at

Programs

at

of Title III.

the Wyatt

the hearing, but

relevant to the defendant's Title III claim.

Detention

only on

issues

-1616

information.

as

"your

Worcester,

information

that

Lanoue did

friend,

and

the millionaire,"

the

only

about the

Laraviere had

not refer to Lariviere by

person who

the

could

Oldsmobile on December

not gone

to jail

name but

informant

from

have

provided

17.

He said

as expected,

advised

Carron

to be careful of Laraviere, and asked Carron to visit

him

in prison.

such

as, "They

Lanoue

know

everything," "you

made statements about the Oldsmobile

all about

know I

the

car, they

bought that

car,"

know

about

and "that

car

there that I bought at American Motors."

At the conclusion

of the evidentiary

defense again argued for a mistrial.

hearing, the

The government conceded

that it had violated Fed. R. Crim. P. 16, but argued that the

error was

made in good

faith and

that the defense

was not

prejudiced.

On the

ruled

that the prosecutor's

16(a)(1)(A)

action.

following

did not

In

warrant

response

to

Monday, October

31,

violation of

Fed. R.

Crim. P.

a mistrial

or other

remedial

the defendant's

the

request

court

for

curative instruction explicitly referring to the prosecutor's

questions

instructed

of

the

the

previous Thursday,

jury that

that a particular thing

if counsel's

the

court

generally

questions "indicate

is so, you shouldn't accept

that as

being established unless and until you hear evidence that the

thing is so."

-1717

The

third

part

of

Carron's

ensued.

Contrary to

refer to

the conversation again, the

Carron whether

his representation that

he had had any

with Lanoue after

or "no"

he would

not

prosecutor again asked

Lanoue's arrest.

The

court overruled the

again answered that he did

Carron again expressed fear that the prosecutor

was trying to make him perjure himself.

"yes"

examination

conversations about Laraviere

defendant's objection, and Carron

not recall.

cross

to

questions concerning

testified to on direct

car

for

He refused to answer

the

events he

examination -- that Lanoue

his

daughter,

that

had

wished to

purchase

the

Laraviere

had

obtained

the keys at the dealership, that they then took the

car for

a test drive, and

that he saw Lanoue

Laraviere thereafter -- instead answering

was my impression," "I

government's

review

show

and "I

2.Analysis

the

trial

discovery violation

United States v. Hodge-Balwing,

______________________________

1991).

"evidently," "that

assume so," "I don't recall,"

don't recall nothing."

We

give money to

court's

for

handling

abuse of

the

discretion.

952 F.2d 607, 609

In order to obtain a reversal

of

(1st Cir.

on appeal, Lanoue must

that the trial court abused its discretion in ruling on

the effect

of the

Tajeddini,
_________

996 F.2d

discovery

violation.

1278, 1287

(1st Cir.

United States v.
_________________

1993).

We will

order a new trial if the discovery violation caused prejudice

not cured by the trial court's remedy.

-1818

The

remedy

trial court

was warranted

found that

because: (1)

no mistrial

or other

the prosecutor

acted in

good faith; (2) the purposes of Rule 16 were not subverted by

the withholding and use of the undisclosed evidence; and

the

defendant was

not

prejudiced.

See

United States

(3)

v.

___

_________________

Gladney, 563 F.2d 491, 494-95 (1st Cir. 1977).

_______

a.

Did

the

prosecutor

act

in

good

faith?

The court found that the prosecutor had made a good

faith error in

measure

judgment.

Such a finding

large

on whether the prosecutor's explanation was credible

and is therefore entitled

to considerable deference.

States v. Levy-Cordero, 67 F.3d 1002, 1013

_______________________

In this

depends in

case, the prosecutor's explanations

the statement were both factual and legal.

court relied on the

arguments,

we temper

United
______

(1st Cir. 1995).

for withholding

To the extent the

reasonableness of the prosecutor's legal

the

usual deference

accorded

purely

factual findings.

Edison Co., 822

__________

Cf. RCI Northeast Servs. Div. v. Boston

__ _____________________________________

F.2d 199, 203 (1st Cir. 1987) ("a finding of

fact predicated upon, or induced by, a misapprehension of law

is

robbed of its customary vitality").

trial

We conclude that the

court's finding of good faith was not supported by the

facts or the law.

First,

government had

the court gave weight to

not received

the fact that the

the statement until

-1919

two months

prior to trial.

But because the government's

obligation to

disclose the defendant's recorded statements is

one, Fed. R.

Crim. P.

16(c), that was

a continuing

a factor

militating

against rather than in favor of a finding of good faith.

Tajeddini, 996
_________

F.2d at 1287

(no bad faith

where prosecutor

was unaware of defendant's statement until the day

disclosed

it to

defense counsel

three days

Cf.
__

before he

before trial).

Instead of disclosing the statement as soon as he received it

from Agent Brosnan, two months prior to trial, the prosecutor

never disclosed it

jury.

Second,

at any

the

"colorable question"

time before using

court

thought

as to whether

that

it before

there

and a potential witness,

of

"colorable,"

Mr.

does

not

But

explain

the

this

to be

had an

statement "to the extent it

Lanoue."

defendant

so that the government only

obligation to produce the

statement

was

the statement had

produced because it was a "mixed statement" by the

the

theory,

prosecutor's

was a

even

if

actions.

"[S]tatements discovered by means of electronic surveillance"

are

within Rule 16(a)(1)(A).

committee's note.

defendant's

comprise one

order

And

recorded

Fed. R. Crim.

the rule contains no exception

statements

on

side of a conversation.

required

P. 16 advisory

disclosure

of

any

the

basis

for a

that

they

The court's pre-trial

statements

subject

to

disclosure

under

Rule

16

and

"[w]hether

the

government

counsel's file indicates that any wire or oral communications

-2020

have

been intercepted."

conversation

transcript

Whether or not Carron's side of the

was required to be disclosed under Rule 16, the

in its

entirety should

have been

disclosed for

purposes of determining its

admissibility before trial.

United States v. Latham, 874

________________________

(it

was

error

for

with

tape

defendant

between

defendant

prosecutor

Rule

to

would have

See Fed.
___

(1st Cir. 1989)

to have

containing

government

believed

not

that

been

provided

conversations

witnesses).

Carron's

not discoverable, the

course

Carron's words.4

government

recordings

and

genuinely

conversation was

permissible

the

F.2d 852, 864

If

side of

reasonable and

to

R. Crim. P.

See
___

seek redaction

16(d)(1).

the

the

only

of

Because

16 could not reasonably be read to allow the government

withhold Lanoue's

side of

the conversation,

the "mixed

statement" rationale did not support a finding of good faith.

Third,

the

court

found

that

the

prosecutor

genuinely believed that the statement was not relevant within

the meaning of Rule 16.

The statement was relevant if it had

"any tendency to make the existence of any fact that [was] of

____________________

4.

Nothing

precluded disclosure

conversation.
3500(a),
testimony.

He was

of

Carron's

side of

not a government witness, 18

the

U.S.C.

and his side of the conversation was not grand jury

United States v. McMahon, 938 F.2d 1501, 1504-05
_________________________

(1st Cir. 1991) (explaining rule that defense is not entitled

to

the grand jury testimony of a defense witness until after

cross examination as being

based on the need for

secrecy).

-2121

grand jury

consequence to the determination

or

less probable

than it

Fed. R. Evid. 401.

the context of

of the action more probable

would

be without

the evidence."

Relevance is to be interpreted broadly in

Rule 16(a)(1)(A).

See Fed. R.
___

Crim. P.

16

advisory committee's note (rejecting narrow interpretation of

defendant's

right to

gives a "defendant

recorded

statements

discover

own statements).

virtually an absolute

"in

the

absence

The

right" to his

of

highly

rule

own

unusual

circumstances

that

order."

Wright, Federal Practice and Procedure

______________________________

2 C.

at 46-47

(1982)

omitted).

See
___

would

(internal

otherwise

justify

citations

and

protective

quotation

also United States v. Bailleaux, 685

____ ____________________________

1105, 1114 (9th Cir.

253,

marks

F.2d

1982) (adopting broad interpretation of

relevance as applied to defendant's statements as a matter of

practicality); United States v. Haldeman, 559 F.2d 31,

_________________________

80

(D.C. Cir.

1976)

(en banc)

(disclosure of

statements is "practically a matter

74 n.

defendant's

of right even without

showing of materiality"), cert. denied, 431 U.S. 933 (1977).

____ ______

The statement obviously was

relevant.

Lanoue made

statements

about

the

Oldsmobile that

inculpatory and exculpatory.5

who was

He

were

arguably

discussed the

a potential government witness,

both

informant,

and made statements

____________________

5.
that

On appeal, Lanoue does not press his contention

the

conversation

was

required

exculpatory evidence.

-2222

to

be

at trial

disclosed

as

relevant

rested

to the

defense theory

that the

government's case

on false information provided by that informant.

See
___

United States v. Noriega, 764 F. Supp. 1480, 1494 (S.D. Fla.

_________________________

1991)

(conversations of

potential

government

meaning of

defendant recorded in

witnesses

Rule 16(a)).

were

prison about

relevant

Even assuming that

within

the

the government

could not envision the statement's relevance before trial, it

certainly

understood

its

relevance

when

defense

counsel

outlined the defense theory in his opening statement.

The reasons proffered by the prosecutor in

of his belief that the statement

was obtained

was not relevant -- that it

in a separate investigation

intimidation, that

support

of alleged witness

the conversation did not

become relevant

until Carron

did

testified inconsistently

not expect

Carron

to testify

with it, and

that he

about Laraviere

-- were

without basis in fact or law.

Rule

16(a)(1)(A)

defendant's recorded

contains

statements

if

no

exception

they

are

for

obtained

in

connection with a separate investigation, so long as they are

relevant

to the pending case.

"[A]cceptance of the language

for just what it says is dictated by the fundamental fairness

of granting the

matter

accused equal

how the government came

access to his

own words,

no

by them." United
States v.
__________________

Caldwell, 543 F.2d 1333, 1353 (D.C. Cir. 1974), cert. denied,
________
____ ______

423 U.S.

1087

(1976).

Moreover,

it

appears

that

Agent

-2323

Brosnan

obtained

the conversation

investigation of the pending

prior to

trial, he had

between

Lanoue

investigation

of

case

prosecutor

stated

that

connection

For at least

been attempting to

conversations

the

case.

in

he

and

with his

six months

obtain telephone

Carron as

part

of

his

pending against

Lanoue.

The

knew about

approved

that

and

activity, and that immediately

after obtaining the August 20

conversation, he subpoenaed Carron to

in the pending case.

"separate

testify against Lanoue

It is therefore difficult to credit the

investigation"

rationale.

In

any

event,

the

conversation contained Lanoue's statements that were relevant

to the charges pending

charges.

Those

against him and his defense

statements

therefore were

to those

required to

be

disclosed by the plain terms of Rule 16.

As

conversation

to

prosecutor's

did not become

inconsistently with

defendant's

the

that

the

relevant until Carron testified

it, the government's duty

relevant recorded

whether or when the

contention

to disclose a

statements does not

hinge on

government uses the statement.

Only an

oral

statement to a known government agent is required to be

disclosed "if the government intends to use that statement at

trial."

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

statement is

required to be disclosed

the government intends to

But even that type of

regardless of whether

introduce it in its case-in-chief,

use it for impeachment, or introduce it in rebuttal. See Fed.

___

-2424

R. Crim. P. 16

Rule 16(a)(1)(A)

advisory committee's note to

is

unequivocal that

1991 amendment.

the government

"must

disclose . . . any relevant . . . recorded statements made by

the

defendant."

Even

an

illegally obtained

inconsistent

statement of a defendant that can only be used to impeach him

(but not a defense witness), Harris v. New York, 401 U.S. 222
__________________

(1971);

James v. Illinois, 493 U.S. 307, 313 (1990), must be

_________________

produced to him

e.g.,
____

The

under Fed.

R. Crim. P.

16(a)(1)(A).

See,
___

United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975).

______________________

government's theory

relevant until a

that

Lanoue's statements

witness testified inconsistently

were not

with some

part

of

the

conversation

particularly where

own statements,

Scafe,
_____

822

F.2d

was

Carron was

erroneous,

not cross examined

but about

Lanoue's.

928,

(10th

935

therefore

about his

See United States v.

___ _________________

Cir.

1987)

(government

violated Rule 16 by withholding defendant's letters and using

them to cross examine defense witness).

The

prosecutor's representations

expect Carron to testify

that he

until the day before

and that even then he did not expect

did not

he testified,

Carron to testify about

Laraviere's character, were irrelevant because, as explained,

Rule

16(a)(1)(A)

requires the

government

to

disclose the

defendant's recorded statements regardless of whether or when

it intends

to use them.

Moreover, it is difficult to credit

the government's representation.

The recorded

conversation

-2525

itself

and

government

defense

on

counsel's

notice

opening

statement

put

that

Carron

would

testify

court

noted

that,

although

the

about

Laraviere.

Finally,

the

the

prosecutor could have tried to

not.

It is true

that

he

held

conversation

that the

conceal the violation, he did

prosecutor immediately

transcript

of

in his hand and

the

defendant's

that he had

and conceded the next day, with a myriad

had

violated Rule 16.

failure

We will not

to know or follow

admitted

recorded

not disclosed it,

of excuses, that he

overlook a prosecutor's

the discovery rules

on the basis

that he did not try to hide the violation.

In any

defendant's

little

event, whether the prosecutor

statements in

to do with whether

mistrial,

mitigating

since

effect

good faith

on

the

or intentionally

the court should

prosecutorial

good

prejudice

withheld the

faith

has

have declared a

could

flowing

have

from

no

the

violation.

Cir.

See United States v. Padrone, 406

___ _________________________

1969)

(granting

new

trial

where

F.2d 560 (2d

inadvertent

non-

disclosure of defendant's statement affected trial strategy).

b.

Were the purposes of Rule 16

subverted?

Rule

designed

to

administration

16's

mandatory

contribute

of

discovery

to

justice by

the

fair

providing the

-2626

provisions

and

were

efficient

defendant with

sufficient information

and

litigation

upon which

strategy;

by

to base an

facilitating

informed plea

the raising

of

objections to admissibility prior to trial; by minimizing the

undesirable effect of surprise

to

the accuracy

of the

at trial; and by contributing

fact-finding process.

See
___

United
______

States v. Alvarez, 987 F.2d 77, 84-86 (1st Cir. 1993), cert.
__________________
____

denied, __ U.S. __,

______

114 S. Ct. 147 (1993); Fed. R. Crim. P.

16 advisory committee's note.

government's

discovery

The trial court found that the

violation

had

not

undermined

the

purposes of Rule 16 because it did not cause the defendant to

unknowingly subject himself to

intended

to protect

against

impeachment;6 Rule 16 was not

surprising a

witness with

an

inconsistent statement; and it may have actually assisted the

accuracy

of

the

fact-finding

process

by

surprising

the

witness.

All

of these

reasons miss

government cross examined Carron

Lanoue's,

the

Rules of

recorded statements

defense strategy

987

F.2d at

85.

Criminal

and to

Lanoue had a right under

Procedure

to discover

prepare for trial

based on the evidence

The court's

because the

by referring to and reading

and not Carron's, words.

Federal

the point

and devise

disclosed.

reasoning that

his

Alvarez,
_______

surprising a

witness with the defendant's statements promoted accuracy and

____________________

6.

Lanoue testified

after Carron, and

therefore after

the

discovery violation came to light.

-2727

therefore militated against remedial

its head.

action turns Rule 16 on

Due to the nondisclosure, the defense was deprived

of the

opportunity to

refresh Carron's recollection

investigate the circumstances

This unfairly

surrounding the

surprised the defense

and to

conversation.

and deprived it

of the

opportunity to design an intelligent litigation strategy that

responded to the statement.

We also note

cross examination

that it

is far from

assisted the accuracy

clear that

of the trial.

the

The

government opened its cross examination by accusing Carron of

threatening Laraviere.

At sidebar the prosecutor stated that

Carron

Laraviere, but

proffered

support the accusation

other than to

say that the

from

corroborated

had threatened

which

he

read

his

nothing to

document

questions.

conversation contained no mention of threats.

In

The

it, Lanoue

told Carron that Laraviere was the informant, that his lawyer

was putting an investigator on Laraviere, that

he should not

warn Laraviere, and that he should be wary of Laraviere.

doubt

that

whether

this was

a sufficient

he had threatened

basis for

Laraviere, and it

insufficient

basis

anyone.

United States v. Lilly, 983 F.2d

______________________

Cf.
___

for asking

if

he

plausible where

appellant

was

he had in

not a

hand a

credible

-2828

asking Carron

plainly was an

had ever

Cir. 1992) (prosecutor's explanation for asking

threatened

300, 306 (1st

question was

judicial opinion

witness);

We

finding

United States v.
_________________

Gomez-Pabon,
___________

911

F.2d

847,

(expressing

doubt

that

prosecutor's

witness

about whether

smuggling were improper

he was

857

n.5

(1st

Cir.

questions

under investigation

since the prosecutor

1990)

to defense

for drug

volunteered to

call witnesses to attest to the foundation of the questions),

cert.
____

denied, 498 U.S. 1074 (1991);

______

Ramirez, 535
_______

F.2d 125,

129 (1st

United States v. Madrid

_______________________

Cir. 1976) (appellant

not

prejudiced by question to defense witness about prior offense

because

it

was

apparently was

based on

an

actual

conviction).

not charged with threatening

government did not

Carron

Laraviere.

present evidence in its rebuttal

The

case to

refute Carron's description of the FBI agents' visit in which

he said

that the

Lanoue, not

was free to show

informant had

such evidence.

the

pressured him

that they accused him

The government

that its

agents

against

of threatening Laraviere.

through admissible evidence

been threatened,

Nonetheless, the jury may

but it offered

no

well have received

impression from the prosecutor's improper questions that

Laraviere did not testify

If

to testify

Lanoue's

recollection

counsel

with the

had

because Carron had threatened him.

been

able

transcript of

to

refresh

Carron's

the conversation,

the

jury

would have

that Laraviere

been warranted

did not

in reaching

testify because his

the conclusion

testimony would

not have helped the government.

-2929

The

prosecutor's

failure

to

disclose

the

conversation

at any time before using it also subverted Rule

16's purpose of facilitating the fair and efficient pre-trial

determination

Although an

after the

of the

admissibility of

evidentiary hearing was

held, it was

prosecutor had already used

the jury.

Moreover,

truncated

due to

we think

the

the government's

Lanoue's statements.

the statements before

hearing

was

presence

provided

of the

Agent Brosnan

Wyatt

with

Detention

directed specifically

its admissibility

Programs at

III.

to obtain

in order

who

to

as a result of monitoring

against Lanoue, which was

under Title

After

Center employee

the conversation

explore whether it was intercepted

unfairly

late disclosure.

Agent Brosnan testified, defense counsel attempted

the

not until

Ms. Egan,

the facility, responded that

relevant to

Director of

the employee would

not attend the hearing because it was his day off.

The court

refused the defendant's request for a recess during which the

prosecutor could convince Ms.

employee's

attendance.

If

Egan of the importance of

the

conversation

had

the

been

disclosed two months prior to trial when it should have been,

defense counsel could have

The

incomplete

prosecutor's

mid-trial

failure

to

obtained any necessary witnesses.

hearing

disclose

necessitated

was

neither

efficient.

c.

Was Lanoue prejudiced?

-3030

by

the

fair

nor

The court found that Lanoue had not been prejudiced

for

the following reasons:

an effective

little role

although the government had done

job of impeaching Carron,

in that

process

because it

the statement played

was peripheral

to

Carron's testimony and the defense theory; Carron denied that

Lanoue

made the statements; and the

statements had not been

introduced into evidence.

The improper questions based on Lanoue's statements

were not

peripheral to

At the close of

Carron's testimony and

the government's case-in-chief, the evidence

concerning the stolen vehicle

was

reported

driving it

stolen on

on December

defense, consisting

that Lanoue

the defense.

December

19 and

21

and that

car was

Lanoue

was

23.

The

again on December

of Lanoue's and Carron's

had purchased the

represented that the

charge was that the Oldsmobile

car from

testimony, was

Laraviere, who

his to sell

and then

had

falsely

informed the FBI that Lanoue was planning to steal the car in

order to obtain favorable treatment on pending theft charges.

If

the

jury

believed that

testimony,

it

would have

had

grounds for acquitting Lanoue of the stolen vehicle charge.

key

element

of

the defense,

argued

in

both

opening

and

information

closing,

the

testify at trial.

that

was

that the

government's

informant

entire

case

upon

rested did

whose

not

Indeed, the government clearly recognized

Laraviere's absence

and

the implication

that he

had

case.

The

-3131

provided

false

information

could

defeat its

government objected when the

informant's name

defense attempted to elicit the

and the exact information

he had provided,

and urged the jury in closing argument to ignore

absence.

other

Laraviere's

Yet it offered no evidence to explain his absence,

than

the

improper

questions

accusing

Carron

of

threatening Laraviere and insinuating that the threat stemmed

from a conversation with Lanoue.

these questions

had a detrimental

was otherwise uncontradicted.

F.3d

due

there

As the government intended,

effect on a

defense that

Cf. United States v. Lewis, 40

___ ______________________

1325, 1340 (1st Cir. 1994) (no prejudice to the defense

to

government's

delayed fingerprint

was ample evidence to

analysis

refute and none

defendant's theory that he was framed).

because

to support the

Lanoue also was

disclose his

prejudiced because the failure

statements deprived

effectively prepare

trial strategy.

See
___

for trial

to

him of the

opportunity to

and to design

an intelligent

Alvarez, 987 F.2d at 85;

_______

United States
_____________

v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S.
_________
____ ______

1218 (1984); Gladney, 563

_______

had

F.2d at 494.

If

the conversation

been disclosed two months before trial as it should have

been, Lanoue would have known that Agent Brosnan obtained

in

connection

intimidation."

with

"separate

investigation of

it

witness

Lanoue's counsel would then have been able to

investigate whether

there was such an

-3232

investigation and, if

so,

what came of it,

enabling him to

either prepare Carron

for

cross examination on that subject or make an intelligent

decision not to call him as a witness.

Carron's

militates

in

prejudice

because

opportunity

denial

favor of

to

rather

defense

refresh

that Lanoue

than

counsel

Carron's

made

the statements

against a

was

finding

deprived

recollection

of

of

the

about

the

content of the conversation.

See United States v. Rodriguez,

___ __________________________

799 F.2d 649, 654 (11th Cir. 1986) (defendant's denial of the

existence of undisclosed items bolstered rather than weakened

his

claim

for a

opportunity

to

mistrial because

support

the

or

purposes

of

thus

requirement).

Carron

don't remember

that" to questions

statements

referred to,

about

"no," and

Laraviere,

statements.

able to refresh Carron's

to him.

answered

while

of the

refresh

the

the

his

discovery

then finally

asking him if

read from, and brandished

containing those

deprived him

denial

recollection,

made

defeating

it

"I

Lanoue had

prosecutor

a document obviously

The defense should

have been

recollection about what Lanoue said

Furthermore, Carron was

prosecutor's

use of

thoroughly unnerved by the

specific dates

while referring

to the

transcribed conversation.

To be sure, he was uncertain about

specific

frames throughout

This

may

dates and

or

may

time

not

have

detracted

-3333

his

from

testimony.

his

overall

credibility

but when

the prosecutor

transcript,

it received

a major

began to

blow.

brandish the

Thereafter, Carron

refused to directly answer any question concerning dates, and

eventually

any question

at

all, expressing

trapped into committing perjury.

fear of

If defense counsel had had

access to the transcript, he could have attempted

Carron's recollection.

not

to

call

government

was able

statements, the

testified

Failing that, he

Carron as

to

witness

destroy, with

defense

theory other

to refresh

could have decided

at all.

credibility of the only

to the

being

Instead, the

the defendant's

own

defense witness who

than the

defendant

himself.

That the

statement was not actually

introduced in

evidence

does

not show

lack

of

prejudice.

question alone can require a mistrial or other

if

it

causes prejudice.

See
___

Rodriguez,
_________

(district court erred in denying

the undisclosed

where

material was

the government's

defendant

was

just

introduced); Padrone,
_______

use of

as

An

improper

potent remedy

799 F.2d

at 654

mistrial on the basis

not

introduced into

the material

effective

406 F.2d at 560

as

if

that

evidence

in questioning

it

had

been

(although undisclosed

statement was not introduced, district court erred in failing

to grant

mistrial

inconsistent

where defendant's

with the

failure to disclose the

statement).

direct

Here,

testimony

was

the government's

conversation and its questions based

-3434

on the conversation could well have led to the destruction of

Carron's credibility and undermined the defense theory.

That

the conversation was not introduced in evidence did not erase

or mitigate the prejudice.

Did the trial court take appropriate action to cure

and prevent prejudice?

When

a party fails to comply with Fed. R. Crim. P.

16, the court is empowered to order that party to comply with

the rule, grant a continuance, exclude the evidence, or enter

other just relief.

should

be

violation

Gladney,
_______

and

Fed.

applied

R. Crim. P. 16(d)(2).

depends

and the

amount

563 F.2d at 494.

likely to

on

the

"seriousness

of prejudice

Here, the

have caused serious

What

to the

remedy

of

the

defendant."

violation was serious

prejudice.

Because the

statement was not disclosed at any time before the government

used it, or in enough time that the defense could make use of

it, a mistrial

decide

whether

discretion

did,

was the only appropriate

but

the

court

if it

had taken

we note

that the

would

have

remedy.

acted

We

within

more forceful measures

court

could have

do not

its

than it

stricken the

questions,

given

an

instruction, granted

and

even

halted

the

immediate

and

the defendant's

explicit

curative

request for

a recess,

cross examination

and

then

allowed

redirect.

Moreover, the court did

prejudice.

not act to prevent further

Although the prosecutor had

-3535

represented that he

would not refer

jury

of

asking

to the conversation

the statements

Carron whether

Laraviere

with the

he had

he

that

objection, the

in the jury's

he

that

did

not

presence.

the trial

about

defendant's arrest.

overruled, and Carron

recall.

the

earlier by

any conversations

By

court tacitly approved the

because it eventually

to review the

four days

defendant after the

again

overruling

The

court did

government

not abuse

gave Lanoue's counsel

statement with Carron to

the

improper question

See United States v. Manning,

___ _________________________

F.3d 570, 575 (1st Cir. 1994).

appeal

read

had had

Defense counsel's objection was

answered

again, he reminded

argues

23

on

its discretion

the opportunity

determine whether he

wished to recall

him.

The

court ignored defense

counsel's

immediate request for a recess and to be given the statement.

The court denied his

of Carron's cross

for redirect.

request for a recess at

examination so that

Instead,

the conclusion

he could prepare

the court permitted Lanoue's counsel

to meet with Carron for the first time during a later

in the middle

of Lanoue's direct

could recall Carron to

him

recess

testimony, ruling that

the witness stand if his

he

reasons for

doing so were sufficient.

This

where

is not

a case

"the critical inquiry is

of merely

. . .

delayed disclosure

whether the tardiness

prevented defense counsel from employing the material to good

effect."

United States v. Osorio, 929 F.2d

_________________________

753, 757

(1st

-3636

Cir. 1991).

The government's use of the conversation without

disclosing it at all precluded Lanoue's counsel from using it

to

any effect.

attempt

When he

to mitigate

were denied.

twice requested

the harm

already done,

Cf. Hodge-Balwing, 952 F.2d

___ _____________

recess in

an

those requests

at 609 (defendant

failed to

show prejudice where court

ordered the government

to hand over the case report before the witness testified and

defendant failed to seek a continuance); Hemmer,

______

13 (defendants

failed to show prejudice

reports, used them

continuance).

to recall

a point

result of the

rules and the trial

to the

where they received

defense, and failed

to seek

We do not fault Lanoue's counsel for declining

Carron at

witness as the

in their

729 F.2d at

when he was

in shambles

government's violation of

court's utter failure to send

witness, the jury

or counsel

that the

as a

the

a message

government's

questions were improper.

Count

because

V is vacated

Lanoue plainly

and remanded

was prejudiced in

for a

new trial

defending against

the stolen motor vehicle charge.

respect

on

There was no prejudice with

to Count VI because Carron's testimony did not touch

whether Lanoue

knowingly transported

a firearm

with an

obliterated serial number.

Although

believe that

the

it

is

more

Lanoue also suffered

conspiracy count.

difficult

question,

prejudice as to

we

Count I,

The jury was instructed that it could

-3737

convict

commit

Lanoue

any

interstate

U.S.C.

had

of conspiracy

one

or

more

of

six

transportation

of

state

boundaries,

interstate transportation of a

and

in

found he

object

stolen

conspired to

offenses:

motor

(1)

vehicle, 18

2312; (2) possession of a stolen motor vehicle that

crossed

18 U.S.C.

if it

18

U.S.C.

2313;

(3)

firearm by a convicted felon,

922(g)(1); (4) using or carrying a firearm during

relation

robbery, 18 U.S.C.

to

an

attempt

or conspiracy

to

commit

924(c)(1); (5) interstate possession of

a stolen firearm (referring to Meade's revolver), 18 U.S.C.

922(j); or (6) interstate transportation of a firearm with an

obliterated serial

number (referring to

Lanoue's revolver),

18

U.S.C.

922(k).

The object offenses

the evidence were the two

with respect to which

relating to the stolen Oldsmobile,

Lanoue was prejudiced.

conclude with fair assurance

the

other

conviction.

four

best supported by

objects,

Unless

we can

that the jury relied on

one of

we must

reverse

the

conspiracy

Cf. United States v. Morrow, 39 F.3d 1228, 1236

___ _______________________

(1st Cir. 1994) (erroneously

where

it was used

which

defendant

admitted evidence was

to prove an

was

never

object of

tied

and

it

harmless

the conspiracy to

was

"virtual

certainty" that jury convicted him for his involvement in the

other object offense), cert.

____

1328 (1995).

denied, __ U.S. __, 115

______

S. Ct.

-3838

The evidence of a

latter

four object

jury's verdicts give

any of them

conspiracy to commit any

offenses was

not overwhelming,

us little confidence that

to find Lanoue

of the

and the

it relied on

guilty of conspiracy.

The jury

necessarily rejected all

of them as objects

of an agreement

by Cole or Meade when it acquitted them of Count I.

we

could not conclude from

evidence

of a

Cir. 1990), the question we

address here

rational jury could conclude but

"rather what

effect the error

upon

this that there was insufficient

conspiracy, United States v. Bucuvalas, 909

____________________________

F.2d 593, 597 (1st

is not what a

Although

had or reasonably may be taken

the jury's decision" in this case.

to have had

Kotteakos v. United
___________________

States, 328 U.S. 750, 764 (1946).

______

The

fourth object

offense,

firearm

during and in relation

charged

as a

instructed

using

to a crime

substantive offense

in Count

or carrying

of violence, was

IV.

The court

the jury that it could find a defendant guilty of

Count IV if

it found that he (1)

Act attempted robbery or

robbery, and (2)

the Hobbs Act conspiracy

knowingly used or carried a

or in relation to that crime

that he aided

to commit

firearm during

or those crimes; or if it found

and abetted that offense.

three defendants

during

committed either the Hobbs

not guilty of

The

jury found all

using or carrying

a firearm

and in relation to an attempt or conspiracy to commit

robbery, and of

aiding and abetting that offense; not guilty

-3939

of

Count II,

Count

the Hobbs

and not

guilty of

III, the Hobbs Act attempt, and of aiding and abetting

that offense.

jury

Act conspiracy;

Under these circumstances, we

necessarily rejected,

conspiracy,

using

or

as

carrying

an

object

firearm

think that the

of the

during

Count

and

in

relation to an attempt or conspiracy to commit robbery.7

The

third

transportation of

and fifth

a firearm

object

offenses, interstate

by a convicted

felon (Lanoue),

and interstate possession of a stolen firearm (Meade's), were

not

charged

as

substantive

offenses against

any

of

the

defendants.

The sixth, interstate transportation of Lanoue's

firearm with an

obliterated serial number, was

charged as a

substantive offense in Count VI against Lanoue alone, and the

jury found him

any

guilty of it, but there was

co-conspirator

knew

obliterated.8

Given the

conspired

anyone

with

knowledge and intent to

that the

jury

rejected

that

the

dearth

of

else

who

no evidence that

serial

number

evidence that

possessed

the

of

them as

Lanoue

requisite

commit these offenses, and the

each

was

basis

fact

for

____________________

7.

Because the jury expressly acquitted Lanoue

18 U.S.C.

924(c)(1),

as an object of

U.S.C.

and necessarily rejected that offense

the Count I conspiracy, the

recent definition of the

of violating

Supreme Court's

"use" element of a violation

of 18

924(c)(1), Bailey v. United States, 64 U.S.L.W. 4039

_______________________

(U.S. Dec. 6, 1995), is not implicated.

8.

Indeed,

there

the government

was sufficient

possess Meade's

does

evidence

stolen firearm

not argue
to support

on appeal
a conspiracy

or Lanoue's firearm

that
to

with an

obliterated serial number.

-4040

conspiracy conviction

the

likelihood is

against Cole and Meade,

remote that

the

jury found

conspired with anyone else to commit them.

we think that

that Lanoue

The

were the

object offenses best supported by the evidence

two relating to the

stolen car.

From

what we can

glean of the jury's reasoning in this case, it is likely they

either

rejected

the

other

conspiracy to transport a

reach agreement

conclude that

not

on the

Kotteakos, 328 U.S.

_________

sway

offenses,

or

stolen car and did not

other object

the erroneous

substantially

object

the

offenses.

use of Lanoue's

jury's

attempt to

We

cannot

statements did

conspiracy

at 765, and therefore

found

verdict,

vacate and remand

Count I for a new trial.

B.
B.

Title III
Title III

Lanoue objected to use of the conversation at trial

and seeks reversal on appeal on the additional ground that it

was

intercepted

in

violation

of

Title

III.

Title

III

prohibits, subject to certain exceptions, the interception of

telephone conversations in the absence of a court order.

18

U.S.C.

2511(1),

intercepted telephone

2516.

Title III.

to

disclosure

18 U.S.C.

prisoners'

the contents

conversation nor any

therefrom may be received

witness, if

Neither

2515.

information

of an

evidence derived

in evidence, or used to

of that

See
___

would

impeach a

violate

Title III's protections extend

conversations over

-4141

institutional telephones.

See,
___

e.g., Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979);

____ __________________

United States v. Amen, 831

_______________________

cert. denied, 485

____ ______

not apply in

F.2d 373,

U.S. 1021 (1988).

this case if

378 (2d

Its prohibitions would

a party to the

conversation gave

prior consent to the interception, 18 U.S.C.

if the

law

conversation was intercepted "by

enforcement

duties."

officer

18 U.S.C.

in

the

Cir. 1987),

an investigative or

ordinary

2510(5)(a)(ii).

2511(2)(c), or

course

of

his

After an evidentiary hearing, the trial court ruled

that the

interception and

not violate Title

interception.9

use of Lanoue's

conversation did

III because he impliedly consented

We

need not

decide this

to the

issue because

we

vacate the convictions on Counts I and V on the basis of Rule

16.

Moreover,

important

because the factual record

respects,

argued certain

and the

parties

relevant issues

whether the conversation

is undeveloped in

have

not briefed

on appeal, we

may be used

at a

or

cannot decide

new trial.

But

because we are sufficiently concerned about whether the Wyatt

Detention

Center

intercepted

Lanoue's

conversation

in

compliance with Title III, we offer the following guidance to

the judge presiding over the new trial.

The record reveals that the

Wyatt Detention Center

is owned

and operated by

Cornell Cox Management,

a private

____________________

9.

The government

did not contend that

Carron consented to

the interception.

-4242

corporation.

Pursuant to an agreement with the United States

Marshal's office, it houses federal prisoners awaiting trial.

Neither

what

the record

facts nor

regulations applied

Detention Center,

prisons

to

telephone

Prisons

requires

notify

inmates

notice

to

be

require

federal

monitoring

inmate

of the

monitoring

The Federal Bureau of

posted

the user that

the Wyatt

at

all

monitored

all conversations from

telephone are subject to monitoring and that use of the

telephone

constitutes

requires each inmate to

the

followed by

for

540.102 (1995).

telephones "advis[ing]

that

procedures

and to

28 C.F.R.

to or were

briefs disclose

federal regulations

establish

calls

policy.

but

the parties'

same.

5264.05

Federal

consent

to

this

monitoring,"

and

sign an acknowledgement form stating

Bureau of

6 (April 25, 1994).

Prisons

Program

Statement

Consent has been held properly

to have been implied when notice was given according to these

standards.

See,
___

e.g., Amen, 831

____ ____

F.2d at

379.

The

record

indicates that Lanoue did not receive notice even approaching

these standards.

Deficient

notice will almost always defeat

a claim of implied consent.

See Williams v. Poulos, 11 F.3d

___ ___________________

271,

282

Keeping

(1st

in mind

Cir.

that

1993); Campiti,
_______

implied consent

consent but "'consent in fact,'"

spite of

court

611

F.2d

is not

390,

393.

constructive

consent might be implied in

deficient notice, but only in a rare case where the

can

conclude

with

assurance

-4343

"'from

surrounding

circumstances

surveillance.'"

(1st Cir.

supplied).

. . . that the [party] knowingly agreed to the

_________ ______

Griggs-Ryan v. Smith, 904

____________________

1990) (quoting

Amen, 831
____

F.2d at

F.2d 112, 116-17

378) (emphasis

We emphasize that "consent should not casually be

inferred," Griggs-Ryan,
___________

case of deficient notice.

904 F.2d

at 117, particularly

in a

The surrounding circumstances must

convincingly show that

the interception in

the party knew about and consented to

spite of

the lack of

formal notice

or

deficient formal notice.

The trial court did not rely on the law enforcement

exception because the government offered no evidence or legal

authority to show

that the employees of

the Wyatt Detention

Center who intercepted Lanoue's conversation were "officer[s]

of the United States

thereof . . .

or make

18

political subdivision

empowered by law to conduct

arrests for offenses enumerated

U.S.C.

2510(7).

the employees who

requisite

or of a State or

If the government

investigations of

in [section 2516]."

can establish that

intercepted Lanoue's conversation

had the

status and powers by law, they must also have been

acting in the ordinary course of duty when they did so.

The conversation was intercepted

when it was heard

by someone other than Lanoue and Carron, whether by listening

as

the conversation

listening thereafter.

1158 (8th Cir. 1992);

took

place or

by

tape recording

See Deal v. Spears,

___ _______________

980 F.2d

George v. Carusone, 849 F.

__________________

-4444

and

1153,

Supp. 159,

163

(D. Conn. 1994).

course

of

duties

interception was

notice,

was

In

Campiti, we held that the ordinary

_______

exception

did

not

done outside the usual

focused

on

Campiti, and

apply

where

the

routine and without

was

not

reasonably

related to maintaining security at Walpole.

611 F.2d at 390,

392.10

who located

As noted previously,

the employee

the

conversation and provided it to Agent Brosnan did not testify

at

the hearing.

evidence

If the

call

for Agent Brosnan's

prison security purposes,

was intercepted

to

gather

investigation, rather than for

it was

not done

in the

ordinary

course of duty.

If neither exception

applies, the conversation may

not be offered

in evidence

other than Lanoue.

allowing

use

of

or used to

witness

According to the "impeachment" exception

illegally

intercepted

impeach a testifying defendant

statements

impeach any

in the conversation

communications

to

(but not a witness), Lanoue's

may be used

for the limited

purpose of impeaching him on matters plainly within the scope

of his direct examination.

Williams, 11 F.3d at 287 & n.35.

________

____________________

10.

Again,

applied
but

the record

to or were

does

not disclose

followed by the

federal regulations

state

what regulations

Wyatt Detention Center,

that the

purpose of

inmate

telephone monitoring is "to preserve the security and orderly

management of the institution and to protect the public."
C.F.R.

540.102.

subpoenas)

on monitored

Regional

Counsel."

"Requests
calls

Federal

for

are to
Bureau

information
be
of

(e.g.,

directed to
Prisons

28

the

Program

Statement 5264.05

6 (April 25, 1994).

-4545

C.
C.

Sufficiency of the Evidence

Sufficiency of the Evidence

Lanoue

argues on appeal,

as he did

in his motion

for judgment of acquittal, that the evidence adduced at trial

was

insufficient for

conspiracy

(Count

I)

the

or

jury

to

interstate

have convicted

transportation

him

of

of

firearm with

an obliterated serial

assessing

claim

examine

verdict,

the

record

in

insufficiency of

in

drawing all

determinations

whether

of

number (Count

the

light

the

favor,

evidence,

most favorable

reasonable inferences

its

VI).

in an

to

In

we

the

and credibility

effort

to

ascertain

the proof would have allowed a rational jury to find

the defendant guilty

beyond a reasonable doubt.

See United
___ ______

States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995).

_________________

1.

Count I - Conspiracy

Lanoue argues that no rational

jury could conclude

beyond a reasonable

doubt that he conspired with anyone else

who

requisite

possessed

because his

the

co-defendants were

criminal

intent,

acquitted.

The

especially

government

argues that there was sufficient evidence from which the jury

could conclude

that

government correctly

acquittal

of

Lanoue

conspired

argues that

with

Cole.

we cannot assume

Lanoue's co-defendants

reflects a

The

that the

failure of

proof rather than leniency or compromise, Bucuvalas, 909 F.2d

_________

at 597, and Lanoue is correct that if we find the evidence of

conspiracy insufficient against the

-4646

alleged co-conspirators,

the

evidence against him also would be insufficient.

Id. at
__

596.

trial

evidence

Our

review of

the

court

correctly

ruled

from

which

the

record persuades

that

jury

there

could

us that

was

conclude

the

sufficient

beyond

reasonable doubt that Lanoue conspired with Cole to transport

stolen automobile in interstate

commerce and to possess a

stolen automobile that had crossed

a state boundary.11

Oldsmobile was

December 21.

Lanoue and

Massachusetts to Rhode Island

on December

reported stolen on

Cole took it from

19,

and from Rhode

Island to Massachusetts

The

on December 23.

The jury was

free to reject Lanoue's

that Lanoue purchased the

represented that

that

the

conversation

determination,

car from Laraviere after Lariviere

the car was his

government's

erroneously

Count

and Carron's testimony

to sell.

surprise

use

interfered

is

Because

of

the

with that

required

to

we hold

recorded

credibility

be

vacated.

Nonetheless, because the evidence was sufficient, a new trial

is

not

precluded.

Having found

sufficient evidence

of a

conspiracy to transport and possess a stolen car, we need not

decide whether there was

sufficient evidence of a conspiracy

____________________

11.

We conclude, however, that the trial court was incorrect

in finding, alternatively, that there was sufficient evidence

that Lanoue

conspired with

Laraviere to transport

automobile in interstate commerce.

evidence

and

did

not

argue

a stolen

The government adduced no

that

Lanoue

conspired

with

Laraviere.

-4747

to

commit any other object

offense.

See
___

Griffin v. United
_________________

States, 502 U.S. 46, 56-57 (1991) (guilty verdict on multiple

______

object

conspiracy

stands

in

the

face

of

claim

of

insufficiency of the

long as

evidence as

the evidence

to one of

the objects

sufficiently supported an

as

alternative

object).

2.

Count VI - Interstate Transportation of a

Firearm with an Obliterated Serial Number

Lanoue was

arrested with a Colt

Special revolver with an

his

waistband.

that he knew

obliterated serial number tucked in

He argues

there was

insufficient evidence

the serial number was obliterated, an essential

element of a violation of 18 U.S.C.

922(k).

v. De Leon Ruiz, 47 F.3d 452, 454 (1st

________________

the evidence in the

drawing

38 caliber Police

United States
______________

Cir. 1995).

light most favorable to the

all reasonable inferences

in its favor, we conclude

Viewing

verdict and

and credibility judgments

that there was sufficient evidence

from which a

rational jury could

conclude that Lanoue

knew

the serial number was obliterated.

Lanoue testified that he

carried

to protect

the revolver

acknowledged

that

fairly often

he

had

cleaned

the

himself, and

gun.

When

the

prosecutor showed him the gun and asked him if it was the gun

he

carried, Lanoue replied, "Is

the

barrel.

denied

asked

on top of

On top of the barrel . . . That's the one."

that he had

if he

the State Police

knew it

obliterated the serial

was obliterated,

-4848

He

number, but when

Lanoue answered,

"I

never

make no

checked it, it's possible.

difference to me whether

don't know

anything about

circumstances,

reasonable

doubt

rational

But I never -- it doesn't

they wiped out or

them anyway

jury

that Lanoue

could

knew

much."

conclude

the

not.

Under these

beyond

serial number

was

obliterated.

D.
D.

The Sentence
The Sentence

The Presentence Investigation Report ("PSR"), based

on the 1994 Guidelines, calculated Lanoue's

adjusted offense

level

as 28.

for

the

The Guidelines provided an offense level of 24

firearms

offense

if

it

was

not

connection with "another felony," U.S.S.G.

the

PSR added

based

on

4 levels pursuant

"information

indicat[ing] that

submitted

the defendant was

and a criminal

range

was 140

counts

firearms

together

by

to 175

months.

pursuant

offense level

counts in the group.12

to

of 28

2k2.1(b)(5)

the

government

about to engage

in the

With an offense level

history category of

The

See U.S.S.G.
___

of

VI, the imprisonment

PSR grouped

3D1.2(b)

as the

in

2k2.1(a)(2), but

to U.S.S.G.

robbery of a Meehan armored car."

28

committed

and

the three

applied

highest level

3D1.3(a).

the

of the

____________________

12.

The

offense

level for

the

stolen

car count

was

6,

consisting of a base offense level of 4 and an enhancement of

2 for the
The

value of the

Oldsmobile.

offense level for the

substantive offenses.

See
___

See
___

U.S.S.G.

conspiracy count was

2B1.1.

that of the

2X1.1.

-4949

Lanoue objected to the 4-level enhancement, arguing

that he

should not be sentenced on the basis of the robbery-

related

crimes of which the jury had acquitted him, and that

the government had not proved those crimes by a preponderance

of the evidence.

on the basis

The court imposed

that Lanoue

connection with the

the 4-level enhancement

used or possessed

crimes of which

the firearm

the jury had

in

acquitted

him -- conspiracy and attempt to commit robbery, and using or

carrying a firearm in connection with a conspiracy or attempt

to commit robbery.13

been

The court found that those

crimes had

proved by at least a preponderance of the evidence, and

expressed its direct disagreement with the jury's verdicts of

acquittal.14

The court

maximum end of the

sentenced Lanoue

range.

to 175 months,

Pursuant to U.S.S.G.

at the

5G1.2(d),

____________________

13.

The

government

had

alternatively

transportation of the stolen

felony."

The

requirement was

court

argued

that

car could constitute the "other

found that

not satisfied

the

"in connection

with respect to

with"

that offense

because firearms are not inherently associated with that type

of

offense

and

the firearm

was

not

used

to effect

its

commission.

14.

In addition to describing the

facts upon which it based

its finding, the court stated:

am at

loss to

explain the

verdict on those three counts.

Jury's

It seemed

to me the evidence was overwhelming.

Jury

saw it

differently

. .

. I

The
just

don't know what the Jury concluded or why

it reached the conclusion that it did.

-5050

because the

the

statutory maximums

court imposed

months

60 months

were all below

imprisonment

consecutive imprisonment

concurrent imprisonment

enhanced by

50 months

on Count

on Count VI.

based on the

the range,15

on Count

V, and

I, 115

60 months

Lanoue's sentence was

crimes of which

he had

been acquitted, amounting to a 40% increase in his sentence.

Lanoue argues

opportunity

on appeal

to reconsider

that we should

our holding

take this

in United States v.
_________________

Mocciola, 891 F.2d 13

________

on the basis

of acquitted conduct,

right to a jury

and

(1st Cir. 1989), permitting sentencing

because it violates

trial and engenders disrespect for

alternatively

that the

trial

court

the

the law,

clearly erred

in

finding that he had committed the robbery-related crimes by a

preponderance of

moot

because only

firearm

with an

the evidence.

the

conviction for

obliterated

statutory maximum

of five

range

125 months

of

100 to

Lanoue's arguments

transportation of

serial number

years, well below

he

are now

stands, with

the Guidelines

would receive

without the

enhancement.

Although it

makes no

difference in this

case, we

believe that a defendant's Fifth and Sixth Amendment right to

have

a jury determine his guilt beyond a reasonable doubt is

____________________

15.

The

conspiracy

statute

carries

five-year maximum;

interstate transportation of a stolen motor vehicle carries a

ten-year maximum; and interstate
with

an

obliterated

serial

transportation of a firearm

number

maximum.

-5151

carries

five-year

trampled

the

when he is imprisoned

basis

acquitted

apparent

of

conduct

him.

of

which

Moreover, we

requirement

that

(for any length

believe that

courts

has

necessarily

the Guidelines'

sentence

conduct utterly lacks the appearance

urges

jury

of time) on

for

acquitted

of justice.

This panel

the court to reconsider en banc the issue of acquitted

conduct when it is next squarely presented.

III.
III.

Conclusion
Conclusion

For the foregoing reasons, the judgments

and V are vacated and those

trial.

Count

The

VI is

conviction on

the

counts are remanded for a new

Count VI

only remaining

is affirmed.

conviction, the

maximum of 60 months for violation of 18 U.S.C.

the upper limit of the

on Counts

sentence.

Because

statutory

922(k) sets

Because Lanoue's Guideline

sentence

would be greater than 60 months with or without the

4-level

enhancement, we order the sentence on Count VI to be

60 months imprisonment.

-5252