USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1199

UNITED STATES,

Appellee,

v.

TRENT MANNING,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

___________________

____________________

Before

Selya, Cyr and Stahl,

Circuit Judges.
______________

____________________

Robert B. Mann
________________

with

whom Mann & Mitchell

_________________

was on

brief

appellant.
Sheldon Whitehouse, United
___________________

States Attorney, with

United States Attorneys were on brief for appellee.

whom Assist

____________________

March 21, 1996

____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

On May 6, 1994,

this court

vacated defendant-appellant Trent

possession with

of a firearm

Manning's convictions

intent to distribute cocaine

during and

in relation to

for

(Count I), use

a drug

trafficking

crime

(Count II), and possession of a firearm by a convicted

felon

(Count

during

III),

closing

holding that

arguments warranted

States v.
______

Manning,
_______

After his

second jury

23 F.3d

570,

trial in

again was convicted on all three

this latest round of

court

erred in:

prosecutorial

new

trial.

573-76 (1st

November

counts.

misconduct

Cir.

of 1994,

United
______

1994).

Manning

Manning challenges

convictions, claiming that the district

(1)

denying his

motion for

acquittal on

Count II, (2) admitting evidence of uncharged misconduct, (3)

denying his

request for

an expert, (4)

precluding evidence

and argument regarding

his

his potential

motion to suppress evidence

sentence, (5)

found during the October 7,

1991 search, (6) instructing the jury, and

the

jury's inquiry.

affirm

(7) responding to

Finding no merit in Manning's first six

claims,

we

Finding

that the district

jury's inquiry,

denying

his convictions

on

court erred in

however, we

Counts

Count II and remand Count II for a new trial.

BACKGROUND
BACKGROUND
__________

III.

responding to the

vacate Manning's

I.
I.
__

I and

conviction on

-22

Viewing the evidence in the light most favorable to

the verdict, United States v. Wihbey, No. 95-1291,

______________
______

at 2 (1st

Cir. Feb. 6, 1996), we conclude

slip op.

that a reasonable

jury could have found the following facts.

Late in

the afternoon on October

7, 1991, several

members of the Providence Police Department executed a search

warrant

at Manning's

Avenue in

minutes

mother's house,

Providence,

before the

located at

Rhode Island.

raid, Detective

known

Manning

for some

time, saw

drive

by his surveillance

151 Doyle

Just three

David Lussier,

Manning and

position (in a

or

four

who had

a passenger

parking lot about

fifty yards from 151 Doyle Avenue with a direct view into its

rear

yard) in Manning's red Jeep Cherokee.

contact

with

Manning

had

compromised

Fearing that eye

his

surveillance,

Lussier ordered that the warrant be executed.

Thereupon, Detective Joseph

rear of 151

with

whom

outside

Doyle Avenue and saw

he had

conversed

the Cherokee and in

on

Lennon approached

the

Manning, whom he knew

and

other occasions,

front of the

standing

garage, holding a

brown

briefcase in his left hand.

as a police officer

stop.

and, with gun drawn, ordered

Manning, ignoring this directive,

the garage with

door

Lennon identified himself

behind

him.

driveway, delayed

walked slowly into

briefcase in hand, closing and

Manning's

rottweiler,

Lennon's pursuit

-33

Manning to

locking the

loose

of Manning for

in

the

three to

five

seized

minutes.

Once

inside

the garage,

Lennon

found and

the briefcase and its contents, inter alia:

_____ ____

two bags

of cocaine weighing 124.64 grams, various drug paraphernalia,

loaded 9

Lennon

did

millimeter handgun, and

not, however,

find

six copper

Manning

pipe bombs.

in his

subsequent

search of the house.

Meanwhile,

Lussier, having ordered the raid, drove

to the front of 151 Doyle Avenue, entered the front door, and

proceeded

to the

basement, where

through which Manning

he found a

had likely escaped.

Manning turned himself in to the police.

II.
II.
___

broken window

One week

later,

DISCUSSION
DISCUSSION
__________

A. Motion for Acquittal

________________________

Manning argues that there was insufficient evidence

to

support his

during

conviction for

and in relation to

using a

destructive device1

a drug trafficking

crime, and so

the district

court erred in denying his motion for acquittal

on Count II.

We review the district court's disposition of a

motion for acquittal

reasonable

de novo, viewing the evidence,

__ ____

inferences that

may be

and all

drawn therefrom,

in the

____________________

1.

18

U.S.C.

921(a)(3)

defines "firearm"

to mean

"any

destructive device."

Section 921(a)(4) defines "destructive

device" to mean "any explosive, incendiary, or poison gas . .

. bomb."

-44

light most favorable

to the

government.

United States
_____________

v.

oral arguments

in

Loder, 23 F.3d 586, 589-90 (1st Cir. 1994).

_____

Approximately

one month

after

this case, the Supreme Court decided Bailey v. United States,

______
_____________

116 S. Ct.

in

501 (1995), and concluded that "use" of a firearm

18 U.S.C.

924(c)(1) means

"active employment

firearm" which "includes brandishing,

striking with,

fire, a

the

and most

firearm."

record

insufficient

government

brandished,

reveals

that

the

presented at trial

bartered,

the

attempting to

careful review of

government's

any evidence

attempted to

handgun or

Our

evidence

was

standard.

The

that Manning

had

under the Bailey

______

present

displayed,

fired/detonated or

millimeter

505, 508.

to show "use"

did not

displaying, bartering,

obviously, firing or

Id. at
___

of the

someone

with,

fire/detonate either

the 9

six pipe

was simply that

struck

bombs.

The

evidence

Manning had carried

the

briefcase

containing the

gun, pipe

bombs, drugs,

and drug

paraphernalia into the garage of 151 Doyle Avenue and nothing

more.

The

extends

reach

beyond the

of

use

18

U.S.C.

of a

firearm.

924(c)(1),

however,

Section

924(c)(1)

applies to any person who either "uses or carries a firearm."

__________

18 U.S.C.

924(c)(1) (emphasis added).

is whether

the government succeeded

sufficient

to show

that Manning

-55

At issue, therefore,

in presenting

was guilty

of

evidence

carrying a
________

firearm during and in relation to any drug trafficking crime.

Conviction

reasonable

under

doubt

924(c)(1)

that

Manning:

trafficking crime of possession

charged in

requires

(1)

proof

committed

beyond

the

drug

with intent to distribute as

the indictment, (2) knowingly

carried a firearm,

and (3) did so during and in relation to the drug trafficking

crime.

See United States

___ _____________

v. Wilkinson, 926
_________

F.2d 22, 25-26

(1st Cir.), cert. denied, 501 U.S. 1211 (1991), and overruled
_____ ______
___ _________

on other
__ _____

grounds
_______

by Bailey,
__ ______

116 S.

Ct. at

509.

Because

Manning has not challenged the sufficiency of the evidence of

the first element, we

restrict our analysis to the

last two

elements and consider each in turn.

By

instances of

that

narrowing

the

interpretation

active employment, the Bailey

______

the "carry"

Accordingly, the

prong

Court

would take

on a

remanded Bailey
______

of

"use"

to

Court recognized

new significance.

and

its

companion

case, Robinson v. United States, No. 94-7492, to the District

________
_____________

of

Columbia Circuit

to

consider liability

Robinson under the "carry" prong of

S.

Ct. at 509.

In Bailey
______

for Bailey

924(c)(1).

and Robinson,
________

and

Bailey, 116
______

the firearms were

found in

the trunk

bedroom closet,

whether firearms

require

of

of a

car and

respectively.

in

a locked

Id. at 503-04.
___

found in these locations

the District of Columbia Circuit

the proper understanding of

-66

"carry" in

trunk in

Determining

were carried will

to test the limits

924(c)(1).

We

need not determine the precise contours

of the "carry" prong

here,

meet any

however,

as

Manning's

construction of the word.

Ct.

2050,

2054 (1993)

actions

reasonable

See Smith v. United States, 113 S.

___ _____
_____________

(noting

that words

not

defined by

statute should be given their ordinary or common meaning).

The word

"carry" is variously defined

as "to move

while supporting (as . . . in one's hands or arms)," "to move

an

appreciable

along to

another place."

Dictionary
__________

meet

distance without

343 (1986).

outside his

and

"to bring

Webster's Third New International

__________________________________

Manning's alleged

all of these definitions.

testimony of

dragging,"

Detective Lennon

actions readily

The government presented the

that he saw

Manning standing

Cherokee and in front of the garage of 151 Doyle

Avenue, holding the briefcase; that he watched Manning, while

holding the briefcase in his left hand, walk into the garage;

and that minutes

garage,

later upon discovering the briefcase in the

he opened

millimeter handgun

could

it

and found,

and six pipe

easily conclude

carried

the handgun

Cherokee to

the garage

left

Manning

hand,

"while

carrying

supporting" it

the

in

briefcase,

bombs.

loaded

Manning had

In walking

from the

the briefcase

And if

necessarily

reasonable juror

was "moving"

his hand.

he

evidence that

while holding

certainly

alia, a
____

bombs.

from this

and pipe

inter
_____

was

the

in his

briefcase

Manning

was

carrying the

contents thereof, namely, the handgun and pipe bombs.

-77

The government also

which a reasonable juror

from

could conclude that Manning carried

the gun and bombs "during" and

possession with intent to

presented ample evidence

"in relation to" the crime of

distribute.

Evidence that Manning

carried the gun and pipe bombs contemporaneously with the two

bags of cocaine and

the drug paraphernalia readily satisfies

the

"during" requirement.

Mosquera,
________

gun

63 F.3d 1142,

"carried at

a time

See United States v.

___ ______________

1151 (1st Cir.

when the

constituted "during" for purposes

that

as

1995) (holding that

offense was

of

Luciano________

in progress"

924(c)(1)).

Evidence

Manning carried the gun and bombs in the same briefcase

the

drugs

requirement.

readily

the

"in

relation

to"

Because the government presented evidence that

could establish

doubt,

satisfies

we affirm

each of

these elements beyond

the district

court's denial

a reasonable

of Manning's

motion for acquittal on Count II.

B. Admissibility of Evidence of Uncharged Misconduct

_____________________________________________________

Manning argues

that the

district

court erred

by

allowing the prosecutor to

drug dealing

and

cross-examine him about his prior

to introduce

basement of 151 Doyle Avenue.

the

items seized

from

the

Manning's attorney objected to

the introduction of this evidence as impermissible "uncharged

misconduct" evidence under

alternative,

Fed. R. Evid. 404(b)

unduly prejudicial

After reciting the standard

under

Fed. R.

and, in the

Evid.

403.

of review, we consider Manning's

-88

testimony on cross-examination and

the items seized from the

basement, in turn.

Because the

admission of Rule

404(b) evidence

is

committed to the sound discretion of the trial judge, we will

reverse

on appeal

States v. Garcia,
______
______

will

only

for abuse

983 F.2d 1160, 1172

reverse a district court's

'exceptional circumstances.'"

States
______

of

v. Garcia-Rosa,
___________

discretion.

United
______

(1st Cir. 1993).

We

Rule 403 balancing "only in

Id. at
___

876 F.2d

1173 (quoting

209, 221 (1st

cert. denied, 493 U.S. 1030 (1990)).

_____ ______

United
______

Cir. 1989),

On

elicited

efforts

cross-examination, the

testimony

prior to

from

Manning

package the cocaine in

weighed

denoted by

drugs on

his

about

October 7, 1991.

testified that he had previously

he

prosecutor successfully

In

his

drug

particular, Manning

sold cocaine; that he would

a specific type of plastic

two

particular scales;

handwriting in

dealing

his

and

drug ledger,

bag; that

that, as

he

would

distribute 100 bags of cocaine every two days to a particular

location.

use of a

The prosecutor also questioned

pager and the source

of his drug

Manning about his

supply.

All

of

this was done over the objection of Manning's attorney.

Rule

other crimes,

404(b) provides

wrongs, and

criminal propensity, it may

that

acts is

although

evidence

not admissible

of

to prove

be admissible for other purposes

that

do

not involve

character,

such as

proof

of intent,

-99

preparation, knowledge

F.2d at 1172.

involved,

this

or absence

of mistake.

Garcia, 983
______

Moreover, when charges of drug trafficking are

court

has

often upheld

the

admission

of

evidence

of prior

and intent.

(1st Cir.

intent

Manning

cases), cert. denied,

_____ ______

was charged in Count II

500 U.S.

with knowingly

the two bags of cocaine in the briefcase with the

to distribute them.

Manning's

his prior drug dealing are highly

and intent

prove knowledge

See United States v. Hadfield, 918 F.2d 987, 994

___ _____________
________

1990) (collecting

936 (1991).

possessing

narcotics involvement to

elements

of that

statements regarding

probative of the knowledge

offense.

The

evidence

that

Manning had previously sold cocaine makes it more likely both

that he was aware of the contents of the plastic

briefcase

bags in the

and that he intended to distribute the two bags of

cocaine.

Having

determined

that Manning's

statements were

probative, we must consider whether their probative value was

substantially outweighed by

R. Evid. 403.

impact

their prejudicial effect.

The district court minimized

about the proper

that

any prejudicial

of the prior drug dealing evidence by instructing the

jury, contemporaneously and again

States
______

Fed.

use of prior bad act evidence.

v. Powell, 50 F.3d
______

limiting

in its final instructions,

instruction

94, 101 (1st

insulated

impact); see also, Richardson

_________ __________

v. Marsh,
_____

-1010

See United
___ ______

Cir. 1995) (finding

against

prejudicial

481 U.S. 200,

206

(1987) (holding that reviewing court

followed instructions).

instructions

and its

typically presumes jury

Given the district

broad

probative

value against

that the

district court

court's limiting

discretionary power

to balance

prejudicial effects, we

cannot say

abused its discretion

in admitting

the evidence of Manning's prior drug dealing.

Manning

admission

of items

stamped "Super

also

challenges

such as

Power" and

the

scales, bags,

district

court's

glassine packets

"Hot Pursuit," rubber

bands, and

straws,

seized

Avenue.

Manning's assertion,

are

from the

governed by

Rule

basement and

garage of

151 Doyle

however, that the items seized

404(b) is

wide

of the

mark.

Rule

404(b), by its very terms, excludes only extrinsic evidence--

"evidence of other crimes,

value

exclusively

wrongs, or acts"--whose probative

depends

criminal propensity.

inference

of

at 994.

Evidence

for which the defendant is

on trial,

accordingly, is not governed

40 F.3d

a forbidden

Hadfield, 918 F.2d

________

intrinsic to the crime

v. Tutiven,
_______

upon

1, 5

by Rule 404(b).

(1st Cir.

United States
______________

1994) ("The cases

are

legion in which similar intrinsic circumstantial evidence has

been

admitted

without

occasioning

either

challenge

analysis under Rule 404(b)."), cert. denied, 115 S. Ct.

or

1391

_____ ______

(1995).

The

certainly

items

qualify as

seized

from

151

intrinsic to

Doyle

the crime

Avenue

most

of possession

-1111

with

intent to

distribute with

which Manning

was charged.

During the

search on October 7, 1991, each of the items were

found in the

discovered

believe

basement of

in the

151 Doyle Avenue,

garage.

that Manning

Should a

occupied the

Doyle Avenue,2 the existence

is directly

probative of

juror have

155,

bags,

162 (1st

and

Cir.

baggies

marijuana charges

seized

from motel

his intention to

admission of

room

at time of defendant's

for which he was on

114 S. Ct. 1331 (1994).

that the

See United States v. Nason, 9 F.3d

___ _____________
_____

1993) (upholding

defendant's girlfriend

of 151

of the drug paraphernalia there

both Manning's knowledge

that cocaine.

scale

chosen to

basement bedroom

bags in the briefcase contained cocaine and

distribute

save one

scales,

registered

to

arrest on the

trial), cert. denied,

_____ ______

The district court did not abuse its

discretion in admitting the drug-paraphernalia evidence.

C. Request for an Expert

_________________________

Manning

erred in

that

the

district court

for appointment of

Justice Act, 18 U.S.C.

"a person who

expert

complains

denying his request

The Criminal

that

also

is financially

an expert.

3006A(e)(1), provides

unable to

obtain .

. .

. . . services necessary for an adequate defense" may

obtain them

after demonstrating in an ex
__

parte hearing that

_____

____________________

2.

The government presented evidence

could draw such a

introduced
Manning,

conclusion.

pager and
151 Doyle

from which the

For instance,

veterinary
Avenue and

bills

-1212

the government

addressed to

police testimony

bills were found in the basement bedroom area.

jurors

Trent

that these

such services are "necessary."

a request

district court's denial of

for such services is reviewed only for an abuse of

discretion.

United States v. Mateos-Sanchez,

_____________
______________

240 (1st Cir. 1988);

864 F.2d 232,

United States v. Fosher, 590

_____________
______

F.2d 381,

384 (1st Cir. 1979).

At the

hearing on

this issue,

Manning's attorney

requested the expert services

officer

who

purportedly

inadequacies

in

investigation of

would

have

the

would

have

testified

Providence

Manning's case.

highlighted the

broken glass of

of a retired Providence police

Police

In

about

the

Department's

particular, the expert

police's

failure

the basement window for

to test

the

fingerprints and to

trace the origins of the pipe bomb components.

Generally,

expert

necessary when the proffered

the

F.2d

services

239-40.

fingerprint

defendant's,

For instance,

expert when

was

the

been

found

expert testimony was pivotal to

indigent defendant's defense.

at

have

See
___

Mateos-Sanchez, 864
______________

courts

have

fingerprint, alleged

primary

means

of

appointed a

to be

connecting

the

the

defendant to the crime, see United States v. Durant, 545 F.2d

___ _____________
______

823,

827

(2d

Cir.

1976),

defendant's sanity at the

see
___

and

proffered

denied,
______

114

expert testimony

psychiatrist

time of the offense was

United States v. Williams,

_____________
________

1993), cert.
_____

S.

998 F.2d 258,

Ct. 940

on

-1313

the

at issue,

264 (5th Cir.

(1994).

the adequacy

when

Manning's

of the

police

investigation, however, was not

critical or necessary to his

defense.

Manning

was

destructive

devices

trafficking

crime.

bombs was not

charged

during

and

with

using

in

relation

Whether Manning

at issue.

had

The proffered

or

to

carrying

drug

manufactured the

testimony that

the

police failed to trace the bomb components, therefore, cannot

be

said

Given

to be

the

central to

eyewitness

Manning's

testimony

of

defense of

Manning

Count II.

carrying

the

briefcase and all the physical evidence found in the basement

and garage,

it,

the

including a scale with

expert

testimony

on

the

Manning's fingerprint on

police's

failure

to

fingerprint

the broken

glass

from the

basement window

is

likewise peripheral to Manning's defense of Count II.3

Moreover,

as the

district court

proffered expert testimony about

police act

or

potential of

omission was

whether or not a particular

good

police practice

confusing the jury and

from its task of assessing the

evidence on the issue of guilt.

noted, Manning's

had

the

diverting its attention

adequacy of the prosecution's

Upon

these facts, we cannot

say that the district court's denial of Manning's request for

____________________

3.

We also

these alleged

note that Manning's

attorney was able

investigative shortcomings before

to place

the jury on

cross-examination of the officers.

-1414

appointment

of

the proffered

expert

was an

abuse

of its

discretion.4

D. Jury Nullification
______________________

At

attempted

to

two points

alert

the

during

jury

trial,

to

the

Manning's

attorney

potential

term

of

imprisonment Manning

During

Manning's

requested the

October

would face

direct

if convicted on

examination,

Count II.5

Manning's

court's permission to ask

attorney

Manning whether, in

of 1991, he was aware of the substantial prison term

facing someone

found using or carrying

during

relation to

and in

district court denied the

a drug

a destructive device

trafficking crime.

request as irrelevant, noting that

sentencing matters are entrusted to the judge, not the

At the

close of all

The

the evidence, Manning's

jury.

attorney again

approached the court at sidebar, this time seeking permission

to

appeal, in his closing

nullification

Manning

by

informing

argument, to the

the

would face if convicted

jury of

jury's power of

the

of Count II.

prison

term

The district

court also denied this request, invoking the rationale it had

used earlier.

____________________

4.

This is not to

say, however, that expert opinion

adequacy of a police investigation

on the

can never be necessary to

an indigent defendant's defense nor do we so rule.

5.

Under

924(c)(1), using or carrying a destructive device

carries a mandatory thirty-year prison term.

-1515

Because we reverse Manning's conviction on Count II

for

this

jury coercion, see part

___

issue.

analysis

of

We

the

nonetheless

second

II.G. infra, we
_____

offer

argument

consistently held that a district

jury

as

to its

power

Sepulveda, 15 F.3d
_________

114

347,

need not reach

the following

cursory

guidance.

We have

as

court may not instruct the

to nullify.

See
___

United States v.
______________

1161, 1190 (1st Cir. 1993), cert. denied,

_____ ______

S. Ct. 2714 (1994); United States v. DesMarais, 938 F.2d

_____________
_________

350 (1st

Cir.

1991); Garcia-Rosa,
___________

876

F.2d at

226;

United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969),
_____________
________

cert.
_____

denied, 397 U.S. 991 (1970).

______

achieve the same

end indirectly, by arguing

the punishment to

the jury, is

United States v.
______________

Calhoun, 49
_______

1995) (holding that

inform the jury

nullify a law

or sentence);

that

538

F.3d 231,

to

punishment or of

its power

to

cf. United States

___ _____________

are

jurors

of

collar

reversible error).

903-04

televised

criminal sentences

white

(6th Cir.

the right

collar

ongoing

236 n.6

See
___

did not have

F.2d 899,

prosecutor's

the severity of

equally impermissible.

a defendant

of possible

Maine Lobster Co.,

__________________

(holding

An attorney's attempt to

too

v. Coast of
_________

(1st Cir.

comment

that

1976)

white

small, communicated

criminal

trial,

to

created

E. Motion to Suppress
______________________

Before his

first trial, Manning

the evidence found during

moved to suppress

the October 7, 1991 search

of 151

-1616

Doyle Avenue.

After a hearing, the district court denied the

motion.

Manning

later objected

to the evidence

as it

offered at trial and then raised the objection on appeal.

did

not

ordered

address

the

suppression

retrial on

issue,

other grounds.

however,

On appeal

second trial, Manning again asks us to consider

of

the search.

suppression

admission

This

motion

of the

time, Manning had

nor

registered

his

evidence below.

trial

from his

the legality

to

the

Manning maintains

decisions of the first

judge are the law of the case, the government contends

thicket,

however,

Manning's arguments

fail.

having

objection

that his suppression arguments are waived.

this

We

neither renewed his

While

that this was unnecessary because the

was

because

are preserved,

assuming

We need not enter

arguendo
________

we find that

that

they still

Manning attacks the district court's denial

suppression motion

that

on two grounds.

the affidavit

establish

supporting the

probable

cause,

of his

First, Manning contends

search warrant

citing

the

staleness

does not

of

the

information regarding the confidential informant's controlled

buy,

the

dearth

credibility, and

of

information

about

a general lack of detail.

that

informant's

Second, Manning

contests the district court's refusal to conduct an in camera

__ ______

proceeding

to

informant ("CI")

test

the

regarding

reliability

the

-1717

of

controlled

the

confidential

buy.

Manning

argues that an in camera review was necessary to his mounting

__ ______

Franks
______

challenge6

statements in

to

the

accuracy

the affidavit supporting

of

the

the search

officer's

warrant.

After summarizing the affidavit, we consider Manning's second

claim first.

On October 7, 1991,

warrant

to search

151

to support his application for

Doyle

Avenue, Detective

Lussier

attested

to

the

following

facts.

"During

the

past few

weeks," while Lussier was investigating marijuana trafficking

at 151 Doyle Avenue, Manning had used keys to enter 151 Doyle

Avenue

home,

and

and appeared to be

living there.

several people had come to

stayed for

phone

previously,

CI,

who

the rear door of the house

short time.

complaints about

Avenue.

Avenue.

only a

While Manning was

Lussier

narcotics trafficking

had

bought

made a controlled buy

Before the buy,

marijuana

took numerous

at 151

from

Doyle

Manning

from Manning at 151 Doyle

Lussier searched the

CI for money

and contraband, gave the CI money, and witnessed the CI enter

the rear of the house.

____________________

6.

Under Franks v. Delaware, 438

______
________

defendant

may

surrounding
an

the

presumption

hearing,

showing

that

if

he

a false

intentionally, or with reckless

included
allegedly

of

validity

affidavits supporting search warrants and obtain

evidentiary

preliminary

overcome

U.S. 154, 155-56 (1978), a

"makes
statement

substantial
knowingly and

disregard for the truth, was

by the affiant in the warrant affidavit, and if the

false statement

is

necessary to

probable cause."

-1818

the finding

of

We

recognize

primarily on information

lack

that

when

an

affidavit

provided by a CI, a

the information needed to

defendant will

make a Franks
______

showing.

United States v. Higgins, 995 F.2d 1, 3 (1st Cir.

_____________
_______

such cases,

the

affidavit

preliminary

conduct an

if

where the

but

defendant challenges the

has

showing"

failed

required

to

by

in camera interview of
__ ______

necessary, of

Southard, 700 F.2d

________

the

(1983).

however;

the decision

the

Franks,
______

the

1993).

See
___

In

accuracy of

"substantial

court

may
___

the officer-affiant, and,

informant.

1, 10-11

U.S. 823

make

relies

See
___

(1st Cir.),

United States
______________

v.

cert. denied,
_____ ______

464

A district court is not required to do so,

whether

an in
__

camera proceeding
______

is

needed

to

test

the

officer-affiant's7

entirely

with the

district

Jackson,
_______

918 F.2d

236, 241 (1st

district court's denial

court.

See
___

of a defendant's

rests

United States
_____________

Cir. 1990).

camera proceeding for abuse of discretion.

______

v. Valerio, 48 F.3d
_______

credibility

We

v.

review a

request for an

in
__

See United States

___ _____________

58, 62-63 (1st Cir. 1995);

Higgins, 995
_______

F.2d at 3.

Manning argues

suppression

hearing

that he

sufficient

statements in the affidavit

court

to question his

presented evidence

to

contradict

at the

Lussier's

and thereby require the district

credibility.

Specifically, Manning's

____________________

7.

Franks only
______

allows impeachment

any nongovernmental informant."

"of the affiant,

not of

Franks, 438 U.S. at 171.

______

-1919

mother testified that she was home all day on October 7, 1991

and that

no sale of drugs could have taken place in her home

without her knowledge.

Manning's attorney told the district

court that, although the affidavit does not specify the

date

of the controlled buy, he recalled that a police officer, not

Lussier, had

testified at

the buy took

place on

from these two facts

the preliminary

October 7, 1991.

examination that

Manning

that the controlled buy could

taken place on October

7, 1991, and therefore, that

concludes

not have

Lussier

must have lied.

As

the

district

court

recognized,

problems inhere in this reasoning.

First, the affidavit does

not provide that

the controlled buy

1991.8

even if

Second,

it did,

however, two

occurred on October

Mrs. Manning's

testimony

does not "preclude at all the possibility that Officer .

Lussier is telling

the truth."

7,

Mrs. Manning admitted

. .

that

Manning was at 151

time on

never

Doyle Avenue for at least some

October 7, 1991, and

out of

Manning's

her

sight.

challenge

court's denial of

she did not claim

to

Given

Lussier's

the

period of

that he was

tenuous

veracity,

Manning's request for an

basis

the

for

district

in camera review
__ ______

was well within its discretion.

____________________

8.

We

find

no clear

error

in

the district

court's

accepting Manning's attorney's

recollection that an

police

during

officer,

testified

at

the

not

present

preliminary

occurred on October 7, 1991.

-2020

the

examination

unnamed

controlled
that

not

the

buy,
buy

Having so decided, we quickly

challenge to the validity

probable cause.

Assuming

dispose of Manning's

of the search warrant for

arguendo that Manning

________

lack of

is correct

about the warrant's invalidity, we nonetheless agree with the

district court's conclusion that

to

the exclusionary

Leon, 468 U.S.

____

held

that,

rule

applies here.

897, 913 (1984).

with limited

the "good faith"

In

exception,

exception

United States v.
______________

Leon, the Supreme Court

____

the

exclusionary rule

should not

apply when police

warrant that subsequently is

U.S.

at 922.

Upon

"ultimate

ample indicia

belief

(quoting

determined to be invalid.

468

review, see
___

constitutional

of

(Powell, J.,

probable cause

concurring in

422

part)).

denial of

in

"'to render

official

Leon, 468 U.S. at 923

____

U.S.

590, 610-11

Accordingly,

the motion

items seized from 151 Doyle Avenue.

Jury Instructions

v.

we find that Lussier's affidavit

v. Illinois,
________

the district court's

F.

conclusions"

in its existence'" reasonable.

Brown
_____

United States
_____________

(1st Cir. 1994) (reviewing district

suppression order de novo),

__ ____

had

on a

de novo
__ ____

Zapata, 18 F.3d 971, 975

______

court's

officers reasonably rely

(1975)

we affirm

to suppress

the

_____________________

Manning

instruction

firearm

First,

raises

defining

two

the offense

during and in relation to

he argues that the

challenges

of

using

to

the

jury

or carrying

a drug trafficking crime.

district court failed to instruct

-2121

the jury that the destructive devices must have actually been

used.

that

Second, he claims

the

destructive

charged crime

that the court

devices

of possession

must

failed to instruct

have

with intent to

facilitated

the

distribute, and

not some other past or future drug trafficking crime.

Our reversal

for

jury coercion,

consideration

of the

of Manning's

see part
___

legality

conviction on

II.G. infra,
_____

of the

Count II

however, renders

court's

924(c)(1)

instruction unnecessary.9

G. Responses to Jury's Inquiry

_______________________________

Manning contests the

a specific

district court's responses to

jury query on two grounds:

(1) that the district

court's response was tantamount to

a directive that the jury

must reach

and (2) that the district

a verdict on Count II,

court did not cure this harm

by polling the jurors --

after

they had reached a verdict but before the verdict was taken -

on whether

Mindful

they had

of the

felt compelled

district

to reach

court's broad

a verdict.

discretion in

"the

____________________

9.

Although its

that the

924(c)(1) instruction initially made clear

predicate drug trafficking crime

cocaine with intent to

distribute it as charged in

in later instructions, the

be proof that the firearm was

role

in

(Emphasis

commission

added).

Count I,

district court stated that "there

must

the

was possession of

of

In future

a
_

connected to or played a
drug

trafficking

instructions, we

caution the

district court to endeavor to avoid generic references

drug

trafficking crime"

predicate offense.

when

referring to

the

crime."

to "a

particular

-2222

giving, or withholding, of a supplemental instruction, or the

contents of it if

given," United States v. Parent,

_____________
______

954 F.2d

23, 25 (1st Cir. 1992), we nonetheless find that the district

court

unusual

transgressed the

set of

retired to

bounds of

circumstances that

deliberate.

See

its discretion

unfolded after

United States

under the

the jury

v. Akitoye,

923

___

F.2d

221,

227 (1st

Cir.

_____________

1991)

discretion district court's denial

testimony read back).

The jury

the morning

_______

(reviewing

for

We outline the relevant history.

began its deliberations

of November 22,

the bedroom

and which

consulting

the parties,

not be

of

of jury's request to have

1994.

in earnest10

After a few

jury sent the court a note, asking "Which scale

would

abuse

scale

had the

the district

proper for me

to tell

hours, the

was found in

fingerprint?"

After

court responded,

you what

on

"It

the evidence

establishes or does not establish.

That's a matter that only

you

the

can

determine."

communication

to the

have an [sic] unanimous

Later,

court, this

jury

sent

time stating, "We

decision on Count Number Two.

another

do not

Must

we

continue to discuss

we'll

both

until we have?

not change our minds."

counsel,

the court

At a

proposed

It is apparent that

chamber conference with

the

following response:

____________________

10.

The court submitted

evening.

After

the case to

deliberating

for

the jury the

previous

approximately

fifteen

minutes, however, the jury chose to go home and reconvene the

next morning.

-2323

"Would reading any portion of the testimony to you assist you

in reaching

of testimony

deadlock

court's

a decision?

of which witness

on Count

II,

response

alternative, he

that

it was not

court denied

If so, please tell me what portions

and

you would like."

Manning's attorney

moved

proposed that

for

objected to

mistrial.

In

the response advise

obliged to reach

the motion,

Perceiving

a verdict.

the

the

the jury

The district

rejected the suggestion,

and sent

its suggested response.

The jury then informed the court, "We would like to

hear testimony from

Officer Lennon and Agent Lennon."

Manning's continued objection, the

court replied, "Is

Over

their

[sic] any particular portion or portions of the testimony

of

Officer Lennon or Agent Lennon that would be helpful to you?"

After receiving

ask the

no reply, the

district court had

jurors whether they wished

or go home

and return the next

received a

note stating

to continue deliberating

day.

that a

the clerk

Thereafter, the

verdict

had been

court

reached.

Apparently concerned about the effect of its second response,

the district

court, before

taking the verdict,

queried the

jury collectively in open court as follows:

I just wanted to
ask

about the

make sure before I even

verdict whether

anybody here who is under

that you were required
unanimous decision.
be
make

the impression

to reach an [sic]

If you didn't, you'd

kept here until you did.

sure

nobody

impression,

had the

there is

is

I wanted to
under

feeling you

that
had to

-2424

reach

an agreement because you felt that

you would

be kept here until

because you
agree in
service.

felt

that you

you did or
had

order to be released
Is there

any of you

to

all

from jury
that had

that feeling?

No

juror responded to the

inquiry.

its verdict of guilty on all counts.

The

jury then returned

This

indicates that

court

has

it

deadlocked,

is

recognized

that

when

supplementary

jury

charge

instructing it to return

and attempt to reach a

verdict may

prejudice a

defendant.

See United States v.

___ ______________

Angiulo, 485
_______

F.2d 37, 39

(1st Cir. 1973).

may cause a

jury to

have

come to

whatever

declaration

agree when they

agreement,

safeguard he

of

For instance, "such

might otherwise

thereby losing

might

mistrial,

have had

and

a charge

either

for the

in

a hung

new

never

defendant

jury,

trial

or

subsequent decision by the prosecutor not to retry the case."

Id.
___

Accordingly, we

include three

ameliorate its

have

elements in

instructed

district courts

any such supplementary

prejudicial effect.

Id.

to

charge to

district court

___

should instruct jurors in substance that (1) members

the

majority

and

the

minority

should

of both

reexamine

their

positions, (2) a jury has the right to fail to agree, and (3)

the burden of proving guilt beyond a reasonable doubt remains

with the government.

Id.
___

Having indicated

that it

was deadlocked

on Count

II, the jury in the present case proceeded to inquire whether

-2525

it

was obliged to reach a verdict

answering this

on Count II.

pointed question "yes" or

court responded with a question:

of the testimony to

This response not

Rather than

"no," the district

"Would reading any portion

you assist you in reaching

only failed to discourage

a decision?"

the notion that

the jury was bound to continue to deliberate indefinitely, it

suggested the opposite, i.e.,

____

so.11

II

Having asked whether continued

to do

deliberation on Count

was necessary, and being offered a review of testimony in

response, a rational lay

that

that a jury is required

the court wanted it

jury could reasonably have inferred

to reach a

verdict, regardless of

whether it could do so in good conscience.

district

Having

sent the

court

did

collectively

reached its

At

that

asking the

jurors

much.

dispel

jury

an

improper signal,

this

in open

misimpression

court, after

verdict, whether that verdict

point,

the

Jurors who may have

convict.

not

jurors

Asking

that he

dynamics

by

it had

had been coerced.

fundamentally

changed.

been hold-outs earlier had now

voted to

such a

had voted

had

the

juror to

admit before

against his

will was

his fellow

asking too

Moreover, the district court never informed the jurors

____________________

11.

Providing a

modified Allen charge at

_____

this juncture, on

the other hand, would have informed the jurors that they need
not surrender

an honest conviction

for the mere

purpose of

returning a verdict and

try

to reach

reexamination is

at the same time encouraged

verdict,
not

fully

on the

aware

minority

that

the

alone and

them to
onus
that

of
the

burden of proof remains with the government.

-2626

that if

any of them

did admit to

being coerced,

the court

would

take their verdicts on Counts I and III, discharge the

jury,

and retry Count II

before another jury.

The unhappy

prospect

of being

sent back

deliberations may also have

coercion.

was

to the

jury room

for further

prevented jurors from

admitting

Because we cannot say that the verdict on Count II

not the product of coercion, we vacate the conviction on

Count II and remand for a new trial.

III.
III.
____

CONCLUSION
CONCLUSION
__________

We

affirm Manning's
______

convictions and

sentences on

Counts I and III, vacate his conviction and sentence on Count

______

II, and remand Count II for a new trial.

______

-2727