United States v. Yanovitch ( 1996 )


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  • USCA1 Opinion








    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 95-1754

    UNITED STATES,

    Appellee,

    v.

    BRIAN SMITH,

    Defendant, Appellant.

    ___________________

    No. 95-1857

    UNITED STATES,

    Appellee,

    v.

    GERALD YANOVITCH,

    Defendant, Appellant.
    ____________________

    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

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

    ____________________

    Before

    Torruella, Chief Judge, ___________

    Campbell, Senior Circuit Judge, ____________________

    and Lynch, Circuit Judge. _____________

    ____________________

    Charles W. Rankin, with whom Rankin & Sultan were on brief for __________________ ________________
    appellant Brian Smith.


















    Michael C. Bourbeau for appellant Gerald Yanovitch. ___________________
    George W. Vien, Assistant United States Attorney, ______________
    with whom Donald K. Stern, United States Attorney, Carole S. Schwartz _______________ __________________
    and Michael D. Ricciuti, Assistant United States Attorneys, were on ____________________
    brief for appellee.


    ____________________

    November 26, 1996
    ____________________





















































    CAMPBELL, Senior Circuit Judge. CAMPBELL, Senior ____________________ ______

    Circuit Judge. A United States Grand Jury for the District _____________

    of Massachusetts returned an indictment charging defendants-

    appellants Brian Smith ("Smith") and Gerald Yanovitch

    ("Yanovitch") with being felons-in-possession of a firearm

    (Count One) and ammunition (Count Two), in violation of 18

    U.S.C. 922(g) (1976 & Supp. 1996), 2 (1969). After a

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

    both counts of the indictment. Prior to sentencing, the

    district court, citing double jeopardy concerns, required the

    government to elect between counts, and the government chose

    to retain the conviction under Count Two. The district court

    sentenced Smith to the statutory maximum of 120 months in

    prison without supervised release or fine, and with a $50

    assessment. The court sentenced Yanovitch to 78 months in

    prison, with three years supervised release, no fine and a

    $50 assessment. Both defendants filed timely notices of

    appeal. We affirm.



    I.

    At approximately 8:00 to 8:30 p.m. on Friday,

    December 2, 1994, Mark Duggan was in Charlestown,

    Massachusetts to pick up a friend, Jonellen Ortiz. As Duggan

    drove to the parking lot in the rear of Ortiz's apartment

    building, he passed Smith. Duggan pulled his car into the



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    parking lot and stopped. Through his rear view mirror,

    Duggan saw Smith approaching his car from behind.

    Smith and Duggan had had a prior confrontation in

    Charlestown approximately two months earlier concerning a

    woman, Colleen King, who was the mother of Smith's son and

    Duggan's former girlfriend.

    Duggan got out of the car, exchanged words with

    Smith, who was thirty to forty feet away, and then reached

    back into the car and retrieved a baseball bat. Smith

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

    semi-automatic handgun and showed it to Duggan. There was a

    standoff, and Smith eventually left the area.

    After the encounter with Duggan, Smith and King met

    King's best friend, Melissa Brown, on a street in

    Charlestown. Brown had known Smith for approximately five

    years, and was the godmother of Smith's and King's son. The

    three of them walked to a liquor store on Main Street in

    Charlestown, where they purchased beer. They, then, went to

    King's apartment, located in the same housing development in

    which Ortiz lived.

    Later in the evening, Yanovitch and his date,

    Danielle Scanlon, arrived at King's apartment and joined the

    others in drinking beer. All of them left King's apartment

    and got into the large, dark-colored, four-door Lincoln Town

    Car in which Yanovitch and Scanlon had arrived that evening.



    -4- 4













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

    Cork and Bull" in South Boston. The group arrived between

    11:30 p.m. and midnight, and stayed there about one and one-

    half or two hours.

    Near closing time, Smith and Yanovitch became

    involved in a conversation with Robert Viens, Jr., Brown's

    former boyfriend. Smith and Viens began to argue about a

    gun, and the argument spilled into the street. Yanovitch,

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

    the latter's girlfriend, Tammy Tetreault, followed them out

    of the bar. Once outside, Yanovitch, King and Brown walked

    over to their Lincoln, which was parked nearby.

    Smith and Viens continued to argue outside the bar.

    Smith said to Viens that he wanted to speak with him alone,

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

    the bar. Smith, then, reached inside his jacket, and Viens

    responded by throwing punches at Smith. The fight moved back

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

    pulled his friend Viens back from Smith as Smith was pulled

    into the center of the Lincoln's back seat, with King on one

    side of him and Scanlon on the other.

    Yanovitch, who was still outside the Lincoln,

    exchanged words with Viens, and then partially entered the

    car through the driver's side door. From the back seat,

    Smith handed a handgun to Yanovitch. Yanovitch got out of



    -5- 5













    the car with the gun, proceeded to fire one round into the

    ground, and then shot Viens. Viens ran and staggered up the

    street away from Yanovitch. Yanovitch shot Viens again, and

    Viens fell to the ground. From behind, Yanovitch closed on

    Viens, pointed the gun at his head, and fired again.

    Yanovitch, then, ran back to the Lincoln, got behind the

    wheel and sped away with his friends.

    After Yanovitch sped away, Veneau went to comfort

    Viens, who was lying in the street. The Boston Police and

    paramedics in an ambulance responded to the scene. The

    paramedics found Viens alive, lying on his back in the

    street. Viens had two small-caliber entry wounds and a third

    small-caliber exit wound. One of the entry wounds was in his

    left front chest, while the exit wound was in the right side

    of his chest. Viens was uncooperative, refused to give his

    name, and even told witnesses at the scene not to cooperate

    with the police. The paramedics placed Viens in the

    ambulance and took him to Boston City Hospital.

    A friend drove Veneau to Boston City Hospital,

    where he saw Viens's parents. Although he initially refused

    to cooperate with the police, Veneau changed his mind after

    speaking with Viens's father. Veneau, then, gave a tape

    recorded interview to Boston Police Sergeant Detective James

    Wyse.





    -6- 6













    Without information from the victim or witnesses,

    the police searched the area of the shooting, but initially

    did not find any ballistics evidence. After speaking with

    Veneau concerning the exact location of the shooting, police

    officers returned to the crime scene and recovered two spent

    .25 caliber shell casings. One of the casings was found

    approximately fifteen to twenty-five feet from where Viens

    was lying when the police and paramedics found him. The

    other casing was recovered an additional ten to twenty feet

    away from the first casing.

    Smith and Yanovitch were arrested on the basis of a

    complaint. On January 24, 1995, a grand jury returned an

    indictment charging Smith and Yanovitch with being felons-in-

    possession of a firearm (Count One) and ammunition (Count

    Two), in violation of 18 U.S.C. 922(g) (1976 & Supp.

    1996), 2 (1969). At trial, Smith and Yanovitch stipulated

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

    The government called a paramedic, Michael

    Sullivan, and two police officers, Wyse and Lieutenant Gary

    French, who had responded to the scene. After speaking with

    Veneau at Boston City Hospital, French returned to the crime

    scene and recovered the two shell casings. The government

    also called Alcohol, Tobacco and Firearms ("ATF") Special

    Agent, Allan Offringa, who testified on direct examination

    that the .25 caliber shell casings were manufactured outside



    -7- 7













    Massachusetts, and that the only .25 caliber pistol

    manufactured in that state was manufactured by a company

    named Harrington and Richardson ("H & R"), which started

    making the gun in 1909 and stopped doing so before World War

    II. Boston Police Ballistician, Edward Szalno, testified

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

    by an H & R pistol.

    The government obtained compulsion/immunity orders

    for two of the women who were in the car with Smith and

    Yanovitch. Although these women, Brown and Scanlon, claimed

    that they did not see the shooting, they did confirm that

    they were out with Smith, Yanovitch and King on the evening

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

    the car shortly after they heard gun shots. Both women also

    confirmed that Smith was seated in the middle of the back

    seat of the car. Duggan was called as a witness by the

    government. He recounted his confrontation with Smith

    earlier in the evening in question. Veneau and Tetreault

    testified to having witnessed the shooting. They said that

    the man in the middle of the back seat of the car handed

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

    After the trial and conviction of Smith and

    Yanovitch on both counts of the indictment, and the

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

    to the statutory maximum of 120 months in prison, and



    -8- 8













    Yanovitch to 78 months in prison, with three years of

    supervised release.



    II.

    On appeal, Smith presents a host of issues,

    claiming errors at trial and in sentencing. As most of these

    issues were not raised in the district court, they are

    reviewable on appeal only for plain error. Yanovitch

    challenges his sentence and says that he adopts by reference

    any additional issues raised by Smith which could materially

    affect his rights in this case.

    A. The Nondisclosure of Test Results _________________________________

    At trial, Ballistician Edward Szalno testified that

    the two shell casings that were recovered from the crime

    scene were fired from a .25 caliber semi-automatic weapon,

    but that the weapon was not a Harrington & Richardson ("H &

    R") pistol. Since H & R is the only company that has ever

    manufactured a .25 caliber semi-automatic weapon within the

    state of Massachusetts, the effect of this testimony was to

    indicate that the gun used had traveled in interstate

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

    R .25 caliber semi-automatic pistol, and had compared the

    shell casings with those found at the crime scene. This

    comparison confirmed his earlier conclusion that the casings





    -9- 9













    recovered from the crime scene were not fired from an H & R

    pistol.

    Smith's counsel says he first became aware of this

    test-firing during his cross-examination of Szalno. He,

    then, moved to strike Szalno's testimony on the ground that

    the government had violated its discovery obligations by

    failing to inform the defense of the test. Counsel argued

    that this discovery violation affected his cross-examination

    and prejudiced Smith's defense. The court ruled that the

    government should have provided defense counsel with the

    observed results of the test-firing, even though no written

    report had been generated. The court refused, however, to

    strike Szalno's testimony, noting that defense counsel had

    not sought a continuance to counter the evidence and had, in

    effect, created the problem at hand by asking questions

    without first determining the likely responses.

    The provisions that might arguably have required

    advance disclosure of the test-firing results are Rule 116.1

    of the Local Rules of the United States District Court for

    the District of Massachusetts and Federal Rule of Criminal

    Procedure 16(a)(1)(D). The former states, in relevant part,

    "The government shall disclose, and allow the defendant to

    inspect, copy and photograph, all written materials as

    follows: (3) . . . all scientific tests, experiments and

    comparisons, or copies thereof, made in connection with a



    -10- 10













    particular case." D. Mass. R. 116.1(a)(3). As the Local

    Rule is expressly limited to written materials, of which none

    were generated here, it was not violated.

    The other proviso upon which Smith relies is

    Federal Rule of Criminal Procedure 16(a)(1)(D), which does

    not speak specifically of written materials only.1 However,

    the words "inspect and copy or photograph" logically suggest

    that the items to be disclosed be tangible enough to be

    susceptible to inspection, copying or photographing. Fed. R.

    Crim. P. 16(a)(1)(D); see also Fed. R. Crim. P. 16(a)(1)(A), ________

    (C). Our circuit has expressly reserved decision on whether

    Rule 16(a)(1)(D) requires the disclosure of unrecorded

    personal observations of tests and the like. Compare United _______ ______

    States v. Veilleux, 40 F.3d 9 (1st Cir. 1994), with United ______ ________ ____ ______

    States v. Tejada, 886 F.2d 483 (1st Cir. 1989). Other ______ ______

    circuits, however, have held that such unrecorded information

    is not covered by Rule 16(a)(1)(D). United States v. Shue, _____________ ____

    766 F.2d 1122, 1135 (7th Cir. 1985) (the Rule does not

    require disclosure of expert's oral statements made after

    comparing photographs); United States v. Johnson, 713 F.2d _____________ _______

    654, 659 (11th Cir. 1983) (where no report was prepared by


    ____________________

    1. The relevant language of the Rule provides, "Upon request
    of a defendant the government shall permit the defendant to
    inspect and copy or photograph any results or reports
    . . . of scientific tests or experiments, or copies therof,
    which are within the possession, custody, or control of the
    government . . . ."

    -11- 11













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

    See also United States v. Peters, 937 F.2d 1422, 1425 (9th _________ _____________ ______

    Cir. 1991) (similar language in Rule 16(b)(1)(B), "cannot

    pertain to oral information"). We think the above decisions

    of the Seventh, Eleventh and Ninth Circuits are consistent

    with the plain language of Rule 16(a)(1)(D), and hold that

    where the test result in question consisted of the expert's

    unrecorded comparison of the test-firing casings with those

    at the crime scene, Rule 16(a)(1)(D) did not obligate the

    government to produce in advance the expert's conclusions.

    This being so, we find no error in the court's refusal to

    strike Szalno's testimony.2

    While this ends the matter, we also agree with the

    district court that there was a total absence of prejudice

    from the nonproduction of the expert's observations following

    the test-firing. Smith argues that, had he known about

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

    the manner he did, to his detriment. However, before Szalno

    took the stand, ATF Special Agent Offringa had already

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

    had given the casings to Szalno for a comparison. In

    addition, Szalno himself testified on direct examination that

    ____________________

    2. The arguments on this appeal do not involve the separate
    requirements of Rule 16(a)(1)(E) on Expert Witnesses, which
    requires the government, on the defendant's request, to
    disclose a summary of the expert's opinions, the bases and
    the reasons therefor.

    -12- 12













    he had examined two cartridge cases that had been fired from

    an H & R .25 caliber semi-automatic pistol and had made

    reference to the FBI's General Rifle and Characteristics

    book. Smith was, therefore, on notice prior to cross-

    examination that Szalno had compared the casings from the

    crime scene with others that were test-fired from an H & R

    pistol. The test-firing of an H & R pistol was, moreover,

    relevant only to the interstate element of the firearm

    convictions, which the government later elected to dismiss.

    The test-firing was irrelevant to the ammunition charges upon

    which both Smith and Yanovitch were sentenced, it being

    undisputed the casings had been manufactured in Arkansas. As

    only the latter convictions stand, the claimed error would

    have been harmless.

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

    Duggan testified that he had a confrontation with

    Smith earlier on the evening in question, in which Smith

    displayed a small, semi-automatic handgun. Smith contends

    that such testimony was admitted in violation of Federal Rule

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

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

    ____________________

    3. Rule 404(b) provides: "Evidence of other crimes, wrongs,
    or acts is not admissible to prove the character of a person
    in order to show action in conformity therewith. It may,
    however, be admissible for other purposes, such as proof of
    motive, opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident, provided that

    -13- 13













    evidence of this sort to be admissible, it must be shown to

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

    other than merely to the defendant's propensity to do bad

    things. See United States v. Cortijo-Diaz, 875 F.2d 13, 15 ___ ______________ ____________

    (1st Cir. 1989). Here, Smith argues, the testimony lacked

    such special relevance and was used by the government simply

    as propensity evidence.

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

    testimony in this regard.4 Our review is, therefore, limited

    to plain error. Under that standard, the burden falls on

    appellants to show that there is an error, that the error is

    clear or obvious, and that the error affected the outcome of

    the proceedings below. United States v. Olano, 507 U.S. 725, _____________ _____

    732-34 (1993). Because the challenged testimony was proper

    evidence of the crimes charged, the court did not commit

    error, much less plain error.

    Far from merely relating to "other crimes, wrongs,

    or acts," Fed. R. Evid. 404(b), Duggan's testimony helped

    ____________________

    upon request by the accused, the prosecution in a criminal
    case shall provide reasonable notice in advance of trial, or
    during trial if the court excuses pretrial notice on good
    cause shown, of the general nature of any such evidence it
    intends to introduce at trial." Fed. R. Evid. 404(b).

    4. Smith had objected earlier to questions about
    conversations Duggan might have had with Smith regarding
    King, complaining that such conversations were irrelevant.
    At sidebar, the government explained the relevance of such
    testimony. Smith did not object thereafter. Neither did he
    object to that portion of the government's closing argument
    based upon Duggan's testimony.

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    establish that Smith knowingly possessed a firearm (Count

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

    922(g) (1976 & Supp. 1996). The decisions in United States _____________

    v. Diaz-Martinez, 71 F.3d 946 (1st Cir. 1995), and United _____________ ______

    States v. Klein, 13 F.3d 1182 (8th Cir.), cert. denied, 114 ______ _____ _____________

    S. Ct. 2722 (1994), are instructive. In Diaz-Martinez, the _____________

    defendant, who was charged with possession of firearms with

    obliterated serial numbers in violation of 18 U.S.C. 922(k)

    (1976 & Supp. 1996), was involved in a shootout immediately

    before his arrest, at which time police recovered the

    firearms. We dismissed defendant's argument that the

    government improperly referred to the shootout in its closing

    argument stating, "[B]ecause . . . the shootout was

    integrally related to the evidence linking the guns to the

    defendant (the possession charges), that evidence could not

    have been barred by Rule 404(b)." Diaz-Martinez, 71 F.3d at _____________

    951 n.4. The Eighth Circuit reached the same conclusion in

    Klein on comparable facts. Klein, 13 F.3d at 1184. _____ _____

    Even assuming that the possession charge related

    only to the weapon with which Viens was shot, Duggan's

    testimony that Smith was in possession of a similar handgun

    earlier that evening tended to establish that Smith possessed

    the same handgun a few hours later, at the time of the

    shooting. The district court did not commit plain error in

    admitting Duggan's testimony.



    -15- 15













    C. The District Court's Control of Smith's Cross- ________________________________________________________
    Examination ___________

    Smith argues on appeal that the district court

    erroneously restricted his cross-examination of Duggan.

    Duggan first informed police of his encounter with Smith

    about two weeks before trial, after he had been taken into

    custody on unrelated charges. Smith contends that he wanted

    to establish on cross-examination that, at the time of his

    testimony, Duggan had pending against him a number of

    criminal charges. This line of questioning would have

    enabled Smith to argue that Duggan had slanted his testimony

    to gain better treatment from the government. Smith

    complains that the district court severely limited his

    ability in this regard.

    A district court's discretion to control cross-

    examination, while broad, is not unlimited. See United ___ ______

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

    we find little indication that the court restricted cross-

    examination in the asserted manner. Moreover, counsel did

    not at the time complain to the court of being so limited,

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

    34, a standard clearly not met on this record.

    During the initial stages of cross-examination,

    when counsel asked Duggan if he had cases pending against

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

    Defense counsel then asked whether the government had helped


    -16- 16













    him with his pending cases. Duggan answered in the negative.

    Later, counsel asked whether Duggan was aware that Ortiz had

    filed a complaint against him for threatening her with bodily

    harm. The government objected, and a sidebar followed.

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

    precipitant." It allowed counsel to pursue the challenged

    line of questioning. Duggan then conceded that he was aware

    of Ortiz's complaint at the time he contacted the police.

    After counsel finished questioning Duggan regarding Ortiz's

    complaint, he did not proceed with similar questions relative

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

    so nor indicate that he felt unduly limited. We find no

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

    restricted his cross-examination of Duggan.

    D. Duggan's Prison Reference and its Impact on the Trial _____________________________________________________

    Duggan mentioned during his direct examination that

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

    an obvious reference, Smith says, to himself. Smith's

    counsel promptly objected, and the court ordered the

    challenged testimony struck.5 Smith's counsel did not ask

    ____________________

    5. Duggan made the disputed reference during the following
    exchange:
    Q: And how did your relationship with [King]
    develop?
    A: Went on through the summer, the spring, and
    the summer of '94 and stopped in October of
    '94.
    Q: And why did it stop on October of '94?
    A: Her reason was, ah, that it was --

    -17- 17













    for a mistrial at the time, but, on appeal, now argues that

    the court erred in not declaring a mistrial sua sponte. __________

    Absent a request for a mistrial, this court's

    review of the court's failure to order a mistrial is for

    plain error only. Olano, 507 U.S. at 733-34. Smith argues _____

    that, since it was clear to the jury that Duggan was

    referring to Smith as having been released from jail, the

    response was so prejudicial as to necessitate a mistrial.

    The district court, however, took some curative measures. It

    sustained Smith's objection and struck Duggan's remark. As

    counsel asked for no more at the time, the trial court could

    reasonably assume that Smith was satisfied. The degree of

    prejudice was neither so obvious nor so clear that only a

    mistrial would have satisfied the needs of justice.

    In United States v. Cresta, 825 F.2d 538 (1st Cir. _____________ ______

    1987), this court laid out the factors that must be


    ____________________

    Defense Counsel: Objection.
    The Court: Sustained as to anything she
    may have said.
    Q: Without saying what she said, why did you stop
    seeing her in October?
    A: The relationship ended because her ex- ______________________________________________
    boyfriend got out of jail. _________________________
    Defense Counsel: Objection.
    The Court: The objection is sustained
    and the answer is stricken. That's
    something someone told you, right?
    The witness: Yes, it would be, I guess.
    The Court: Yes, its -- someone told you.
    The witness can only testify to what they
    know, not what people told them. The
    answer is stricken; disregard it.

    -18- 18













    considered in evaluating an otherwise improper reference to

    an accused's prior imprisonment: whether the remark was

    isolated, whether it was deliberate or accidental, whether

    the trial court's instruction was sufficient to counteract

    any prejudice that might have flowed from the remark, and

    whether any remaining prejudice could affect the outcome of

    the case. Cresta, 825 F.2d at 550. The remark in the ______

    present case, as the government points out, was a single,

    isolated and accidental reference by a witness trying to

    answer a question designed to address defense counsel's

    hearsay objection. Smith himself had already stipulated that

    he was a convicted felon. The disputed remark added little,

    therefore, to what the jury could already surmise. We do not

    find plain error in the court's failure to order a mistrial

    sua sponte. __________

    E. The Questioning of Defense Witness Ortiz ________________________________________

    On cross-examination, the government was allowed,

    over Smith's unexplicated objection, to ask defense witness

    Ortiz whether she had acted as a confidential informant for

    the Drug Enforcement Administration ("DEA") and whether, as

    such, she had helped the DEA obtain a search warrant for the

    apartment of her friend, Colleen King. Smith now argues that

    the district court should have excluded these questions

    because they were irrelevant and because by implying that

    Smith's girlfriend was the subject of a drug investigation



    -19- 19













    they unduly prejudiced him and his case. Smith also asserts

    that the district court erred in preventing him from

    establishing that the DEA's subsequent search of King's

    apartment yielded no evidence of illegal drugs. Eliciting

    such evidence was relevant, Smith says, to undermine any

    concerns about the credibility of the witness and to rebut

    the prejudicial characterization of Smith and his girlfriend.

    We do not find plain error.

    One problem with these arguments is that Smith

    never advised the district court of the reasons he now

    advances on appeal for excluding the government's line of

    inquiry. Federal Rule of Evidence 103 states that error may

    not be grounded upon an evidentiary ruling "unless a

    substantial right of the party is affected, and . . . [i]n

    case the ruling is one admitting evidence, a timely objection ______

    or motion to strike appears of record, stating the specific ________

    ground of objection . . . ." Fed. R. Evid. 103(a)(1)

    (emphasis added). Counsel had been informed in advance that

    the government planned to cross-examine Ortiz concerning her

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

    the information was irrelevant nor did he claim prejudice

    under Rule 403. And when the district court limited Smith's

    redirect examination of Ortiz, Smith made no objection. Our

    review, therefore, is only for plain error. Olano, 507 U.S. _____

    at 733-34.



    -20- 20













    The government contends that its cross-examination

    was designed to impeach Ortiz, and not to smear Smith and

    King.6 Ortiz denied that she had ever furnished information

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

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

    that counsel's questions did not constitute evidence. Even

    assuming arguendo, it was error to allow the government to

    cross-examine Ortiz as it did, we conclude the error caused

    slight, if any, damage to Smith. The limitation of Smith's

    redirect was likewise far short of plain error. The subject

    matter was of border-line relevance, hence well within the

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

    F. The Government's Closing Argument _________________________________

    Smith claims that the prosecution misstated the

    evidence on four separate occasions in its closing argument.

    These alleged misstatements, according to Smith, went to the

    heart of the case, were not corrected by the district court

    and, therefore, warrant the reversal of his conviction. The

    challenged statements, and this court's reasons for rejecting

    Smith's present claims, are set forth below.



    ____________________

    6. The government says it sought to establish biases or
    motives to lie on the part of Ortiz. To do so, the
    government claimed that Ortiz and King had been in the drug
    business together, that information provided by Ortiz to the
    DEA contradicted her testimony at trial, and that Ortiz was
    capable of duplicitousness (and, thus, of lying on the
    stand).

    -21- 21













    Smith concedes that he did not object at trial to

    the challenged statements. Consequently, we review his

    present claims under the plain error standard. Olano, 507 _____

    U.S. at 733-34. In so doing, we consider a number of

    factors, "including the frequency and deliberateness of the

    prosecutor's comments, the strength and clarity of the trial

    judge's instructions, and the strength of the government's

    case against the defendant." United States v. Morales- ______________ ________

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

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

    The first disputed statement, that Mark Duggan

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

    on the night in question, is the only characterization of

    evidence that can be termed a misstatement. We do not find,

    however, that the prosecutor's description strayed far enough

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

    amount to plain error. However described, the small caliber

    handgun mentioned in Duggan's testimony was consistent with

    the .25 caliber casings recovered after the shooting. The

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

    or deliberate prevarication. Also, the case against Smith

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

    effect of the lawyer's statements. The misstatement, such as

    it was, fell well below the plain error threshold. See ___

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



    -22- 22













    As for the three remaining challenged remarks,7 at

    least two were amply supported by the record. Statement #2

    rested on Veneau's testimony that the government protected

    him and helped him move out of South Boston, and that he had

    not gone to the police for fear of the defendants. Statement

    #4 was a fair inference from the testimony of Boston Police

    Lieutenant French. Statement #3 is more problematic but in

    no way amounts to plain error. The government argues in its

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

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

    is what the prosecutor said, the remark was unexceptionable,

    since the jury had observed Tetreault on the stand and could

    determine whether or not she exhibited fear. The transcript,

    however, indicates the prosecutor as actually having said

    that "he sat up there" and saw fear in Tetreault's face. If

    the "he" referred to Veneau, the comment was arguably

    garbled, since by the time Veneau testified at the trial, he

    had already retracted earlier misstatements to police that

    Tetreault had been absent. But, even accepting the latter



    ____________________

    7. Statement #2: The government stated that Walter Veneau
    could not go back to South Boston after he testified.
    Statement #3: The government stated that Walter Veneau
    did not tell the police his girlfriend was at the scene of
    the shooting because "he sat up there and saw the fear" on
    her face.
    Statement #4: The government stated that the police
    found the shells where Walter Veneau told them the shooting
    had taken place.

    -23- 23













    version, the unobjected-to remark was harmless and fell far

    short of constituting plain error.

    G. The Meaning of "Ammunition" ___________________________

    Smith contends on appeal that the district court,

    through certain unobjected-to instructions given to the jury

    while the trial was in process, erroneously directed a

    verdict in the government's favor on the elements of

    ammunition and interstate commerce. According to Smith, the

    district court wrongly told the jury that the casings which

    were received into evidence were ammunition, and had traveled

    in interstate commerce.8 Such instructions, according to the

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

    Smith on two essential elements of the offense. See United ___ ______

    States v. Argentine, 814 F.2d 783, 788-89 (1st Cir. 1987) ______ _________

    (quoting United States v. Natale, 526 F.2d 1160, 1167 (2d ______________ ______

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

    concludes that the district court committed plain error,

    requiring the reversal of his conviction.

    The district court made the challenged remarks in

    the course of certain mid-trial comments to the jury


    ____________________

    8. Smith challenges the following statements made by the
    court in the course of remarks to the jury during the trial
    relative to evidence on the cartridge casings: "Despite what
    may have been raised in the opening statements to you, the
    cartridge case, standing alone, is ammunition under federal
    law. So the cartridge case originally was made out of state,
    found its way into Massachusetts. Whether or not it was
    reloaded, it still moved in interstate commerce."

    -24- 24













    intended, among other things, to correct an earlier

    misstatement by Yanovitch's counsel relative to the

    definition of "ammunition." Counsel had stated that shell

    casings were not ammunition, an assertion contrary to the

    definition set forth in 18 U.S.C. 921(17)(A) (1996): "The

    term 'ammunition' means ammunition or cartridge cases

    . . . ." Before correcting counsel, the trial court

    indicated to the jury that it was instructing them as to the

    law, not as to the evidence. If counsel wished

    clarification, he should have asked for it at the time. In

    its final charge to the jury, the district court clearly

    informed the jury of the government's burden to prove beyond

    a reasonable doubt defendants' possession of ammunition and

    of the movement of the ammunition in commerce, and gave

    accurate, extensive and clear instructions on each of these

    points. We do not find plain error.9

    H. The Meaning of "In or Affecting Commerce" _________________________________________

    Smith challenges the accuracy of the court's jury

    instruction on the meaning of the phrase "in or affecting

    commerce." As he did not object to the instruction, our

    review is for plain error only. Olano, 507 U.S. at 733-34. _____

    After considering the instruction, and the prevailing case


    ____________________

    9. As noted previously, there was uncontested evidence that
    the cartridge casings found at the scene were made in
    Arkansas, permitting the inference that they had traveled
    interstate.

    -25- 25













    law, we conclude that the court did not commit error, plain

    or otherwise.10

    As part of its case, the government had to prove

    that possession of the ammunition was "in or affecting

    commerce." 18 U.S.C. 922(g)(1) (1976 & Supp. 1976). The

    Supreme Court in Scarborough v. United States, 431 U.S. 563, ___________ _____________

    575 (1977), held that evidence showing that a weapon had

    crossed state lines is legally sufficient to satisfy this

    element of the statute. Smith, while not disputing the

    above, contends that it should have been left solely to the

    jury to decide whether the ammunition's crossing of state

    lines could establish that possession was "in or affecting

    commerce."

    This argument runs counter to the principle that

    the court, not the jury, is responsible for declaring the

    law. Here, the court's instruction finds support in






    ____________________

    10. The court instructed the jury as follows: "So the
    government has to prove beyond a reasonable doubt that the
    firearm, taking the firearm charge, and the ammunition,
    taking the ammunition charge, was in commerce. That doesn't
    mean that they have to prove Mr. Yanovitch or Mr. Smith
    carried the items across a state line. But the government
    does have to prove beyond a reasonable doubt that at some
    time after the firearm or ammunition was manufactured, up
    till the time when the person you're considering possessed
    it, if you find that one or both of them did possess it, that
    the item, the firearm, or ammunition, or both, were in
    commerce, which means it went across a state line . . . ."

    -26- 26













    Scarborough and in circuit precedents spawned by ___________

    Scarborough.11 The court properly instructed the jury on the ___________

    meaning of the phrase "in or affecting commerce."

    Smith also claims that the court should have

    required the jury to find a "substantial" effect on

    interstate commerce, in light of the Supreme Court's recent

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

    (1995). In Lopez, the Court struck down the Gun-Free School _____

    Zones Act, 18 U.S.C. 922(q) (Supp. 1996), which prohibited

    a person from possessing a gun while in a "school zone," on

    the grounds that it exceeded Congress's powers under the

    Commerce Clause. Lopez, 115 S. Ct. at 1630-31. Smith _____

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

    the proposition, stated in Scarborough and its progeny, that ___________

    Congress intended nothing more than a minimal contact with

    interstate commerce. Consequently, Smith concludes that the

    district court committed error when it failed to instruct the

    jury that the government had the burden of proving that the

    ammunition at issue substantially affected interstate

    commerce.



    ____________________

    11. United States v. Gillies, 851 F.2d 492, 494 (1st Cir.), _____________ _______
    cert. denied, 488 U.S. 857 (1988); see also United States v. _____________ ________ _____________
    Carter, 981 F.2d 645, 648 (2d Cir. 1992) (instruction that ______
    "it is sufficient that the firearm allegedly possessed or
    received by defendant had at some point previously travelled
    across a state line" upheld in Section 922(g)(1) case), cert. _____
    denied, 507 U.S. 1023 (1993). ______

    -27- 27













    Smith's reliance on Lopez is misplaced. Unlike the _____

    statute at issue in Lopez, Section 922(g)(1) (1976 & Supp. _____

    1996) contains a specific jurisdictional element which

    ensures, through case-by-case inquiry, that the firearm

    possession in question affects interstate commerce. Where,

    as here, the jurisdictional element is present, the

    government need only prove the minimal nexus to interstate

    commerce identified in Scarborough. See Diaz-Martinez, 71 ___________ ___ _____________

    F.3d at 953. Smith's argument is without merit.

    I. The Sufficiency of the Government's Evidence ____________________________________________

    Smith argues that his conviction rests on

    insufficient evidence. In reviewing this claim, we must

    determine whether, after viewing the evidence, and all

    reasonable inferences drawn therefrom, in the light most

    favorable to the government's case, a rational factfinder

    could find, beyond a reasonable doubt, that the prosecution

    has proved the essential elements of the offense. United ______

    States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). In so ______ _______

    doing, this court defers to the jury as to all credibility

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

    its entirety, supports a judgment of conviction. Id. ___

    Because the evidence in this case was more than sufficient

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

    Smith argues that there was no evidence indicating

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



    -28- 28













    no proof that he possessed ammunition as well. Smith points

    to the fact that, while Veneau and Tetreault both testified

    that the man in the back seat handed an object to Yanovitch

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

    so far as to state that Smith passed a firearm to Yanovitch.



    However, the testimony of Veneau and Tetreault,

    together with the reasonable inferences that can be drawn

    therefrom and from the other evidence, is ample to establish

    Smith's involvement. Veneau said that he never saw Brian

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

    named Brian Smith. Veneau's assertion that the man in the

    middle passed what Veneau believed to be a gun to Yanovitch,

    when coupled with evidence that Smith was the man in the

    middle, supports the conviction. Tetreault testified that

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

    Yanovitch, but noted that she saw that it was a gun when

    Yanovitch got out of the car with it. This testimony, in

    conjunction with all the other evidence at hand, including

    the subsequent shooting and Duggan's testimony that he had

    seen Smith with a handgun earlier, was adequate to establish

    Smith's guilt beyond a reasonable doubt.

    J. Four-Level Increase in Smith's Guideline Sentencing ________________________________________________________
    Range ______

    On appeal, Smith challenges the factual findings

    that served as the foundation for the four-level enhancement


    -29- 29













    of his Guideline Sentencing Range ("GSR"). Since Smith's

    counsel properly objected to these findings at the sentencing

    hearing, this court's review is limited to clear error.

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

    Under the circumstances, "we ask only whether the court

    clearly erred in finding that the government proved the

    disputed fact by a preponderance of the evidence." Id. at ___

    103. We hold that the factual findings were amply supported

    on the record and that the court did not commit clear error

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

    Smith alleges that the district court clearly erred

    when it increased his GSR based upon its finding that he

    transferred the firearm to Yanovitch in connection with

    another felony offense. United States Sentencing Commission,

    Guidelines Manual, 2K2.1(b)(5) (Nov. 1995).12 Smith claims _________________

    that the evidence presented at trial was insufficient,

    especially as there was an absence of proof that Smith knew

    that Yanovitch intended to use the gun to shoot Viens.

    The evidence at trial was sufficient to show that

    Smith and Viens became involved in a dispute about a firearm

    at a Boston bar; that the two men left the bar together;


    ____________________

    12. U.S.S.G. 2K2.1(b)(5) provides: "If the defendant
    used or possessed any firearm or ammunition in connection
    with another felony offense; or possessed or transferred any
    firearm or ammunition with knowledge, intent, or reason to
    believe that it would be used in connection with another
    felony offense, increase by 4 levels . . . ."

    -30- 30













    that, when Smith reached inside his jacket, Viens punched

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

    from where he handed a gun to Yanovitch, who proceeded to

    shoot Viens. From this, it was reasonable for the district

    court to infer that Smith gave his handgun to Yanovitch

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

    As this was a reasonable and permissible interpretation, it

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

    K. The Attachment of the Sentencing Hearing Transcripts to ________________________________________________________
    Smith's Presentence Report __________________________

    At the sentencing hearing, Smith asked the district

    court to order deleted from the PSR reference to certain

    state convictions. These convictions had been vacated prior

    to the hearing, and, as a result, Smith no longer could be

    sentenced as an armed career criminal, see 18 U.S.C. ___

    924(e)(1) (Supp. 1996), although he could still be sentenced

    as a felon-in-possession. The district court stated on the

    record during the sentencing hearing that the challenged

    convictions had been set aside and ordered the transcript

    containing its remarks to be attached to the PSR as an

    indication that these convictions were no longer valid.

    ____________________

    13. The district court held as follows: "I rule on the
    totality of the trial record . . . that the evidence is
    sufficient to warrant a finding that when Mr. Smith passed
    the weapon to Mr. Yanovitch, he well knew and he intended
    that it be used to assault Mr. Viennes [sic]. Not any self-
    defense, but in furtherance of the altercation. I find by a
    fair preponderance of the evidence that that was precisely
    what was in Mr. Smith's mind, and I add four levels . . . ."

    -31- 31













    Deeming attachment of the transcript to be an adequate

    corrective, the court refused to direct the probation officer

    to revise the PSR itself.

    Smith did not object to the court's procedure at

    the time, but on appeal complains that the Bureau of Prisons

    uses these PSRs to allocate the prison population among its

    institutions and programs. According to Smith, the Bureau's

    personnel is not likely to pay attention to the sentencing

    hearing transcript. Consequently, Smith argues that he has

    been unduly prejudiced by the district court's order. He

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

    Federal Rule of Criminal Procedure 32(c)(1)

    requires a sentencing court to address each relevant matter

    in the PSR which is controverted by the parties.14 The court

    must make either a finding or a determination that none is

    necessary. Not intended as an "onerous" requirement, the

    sentencing court's determinations "can be simply entered onto

    a form which is then appended to the report." Advisory

    Committee Notes to Fed. R. Crim. P. 32(c)(3)(D) (the

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

    ____________________

    14. The relevant text of Rule 32(c)(1) is as follows: "For
    each matter controverted, the court must make either a
    finding on the allegation or a determination that no finding
    is necessary because the controverted matter will not be
    taken into account in, or will not affect, sentencing. A
    written record of these findings and determinations must be
    appended to any copy of the presentence report made available
    to the Bureau of Prisons." Fed. R. Crim. P. 32(c)(1).


    -32- 32













    In United States v. Bruckman, 874 F.2d 57, 63-64 ______________ ________

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

    Rule's writing requirement is to protect the defendant's due

    process rights and to provide the reviewing court with a

    clear record of the disposition below. Smith does not here

    complain that the district court mishandled or misread the

    vacated convictions so as to sentence him improperly in this

    case. Rather, he fears that appending the transcript, rather

    than physically revising the PSR, is an insufficient way to

    alert future prison authorities to the true status of the

    prior convictions. Whether or not this is a realistic fear

    we cannot say. Smith did not raise this concern before the

    district judge, who was best situated to pass on it.

    Precedent indicates that the appending of a hearing

    transcript will comply with the Rule.15 If, in a particular

    case, there are practical reasons to do more, we have no

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

    matter, with the help of the probation officer. As we say,

    Smith did not raise the issue below; absent his having done

    so, we can find no error cognizable on appeal. We add that

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


    ____________________

    15. See Bruckman, 874 F.2d at 65; see also United States v. ___ ________ ________ _____________
    Santamaria, 788 F.2d 824, 829 (1st Cir. 1986) (citing United __________ ______
    States v. Castillo-Roman, 774 F.2d 1280, 1285 (5th Cir. ______ ______________
    1985), for the proposition that appending the transcript of
    the sentencing court's determinations satisfied the
    requirements of the Rule).

    -33- 33













    to administratively assuming they have any legitimacy,

    which we cannot ascertain from the record before us by

    simply appending a suitable notation to the PSR updating the

    status of the prior convictions. Whether this or some other

    measure is necessary we leave entirely to the appropriate

    authorities.

    L. Yanovitch's Sentence ____________________

    Yanovitch challenges the factual findings made by

    the district court as a basis for his sentence. We review

    his claims for clear error. Powell, 50 F.3d at 102-03. We ______

    are satisfied that the record below amply supports the

    sentencing court's factual findings and that Yanovitch's

    allegations are baseless.

    Yanovitch contends that the evidence at trial was

    insufficient to establish that he attempted to shoot Viens in

    the head, and that he had the intent to kill him. If

    anything, Yanovitch argues, the evidence at trial

    demonstrated that he acted in the heat of passion and in the

    absence of malice aforethought; there was no indication,

    according to Yanovitch, that he had the necessary state of

    mind for attempted murder. Nevertheless, the district court

    found that Yanovitch's conduct conformed to the charge of

    assault with intent to murder, and, based upon that finding,

    sentenced him under U.S.S.G. 2A2.1. On appeal, Yanovitch

    argues that a reasonable person would conclude that the



    -34- 34













    incident in question was an aggravated assault or, at most,

    an assault with an attempt to commit manslaughter, either of

    which would require application of U.S.S.G. 2A2.2.16

    Yanovitch's argument merits little discussion in

    light of the evidence at trial which was also summarized in

    his PSR, and the tape recording of Veneau's interview with

    Boston Police.17 This evidence obviously supports the

    sentencing court's determination that Yanovitch shot Viens

    with the intent to kill him. The court did not clearly err

    when it sentenced Yanovitch pursuant to U.S.S.G. 2A2.1.

    Affirmed. ________












    ____________________

    16. While 2A2.1 (Assault with Intent to Commit Murder;
    Attempted Murder) has a base offense level of 22, 2A2.2
    (Aggravated Assault) has a base offense level of 15.

    17. The PSR stated, in relevant part: "Yanovitch got out of
    the car, fired one round into the ground, then walked up to
    Viens and shot at Viens at least twice, striking him once in
    the abdomen and once in the upper thigh. Yanovitch then
    pursued Viens up the street, put the gun 2 to 3 feet from
    Viens' head, fired again, but missed."
    Veneau stated, in pertinent part: " . . . when I
    looking back I see Gerry Yanovitch 'bout three feet, two-and-
    half feet behind Bobby [Viens] pointing a, something that
    looks like a small calibre handgun towards Bobby's head, I
    hear another one, bang. There's five shots, all together I
    heard -- miss Bobby . . . ."

    -35- 35