United States v. Andrade ( 1998 )


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  • UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 96-2309
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JOSE V. ANDRADE, JR.,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Reginald C. Lindsay, U.S. District Judge]
    Before
    Boudin, Circuit Judge,
    Coffin, Senior Circuit Judge,
    and Dowd,* Senior District Judge.
    Miriam Conrad, Federal Defender Office, for appellant.
    James  F.  Lang,  Assistant  United  States  Attorney,  with  whom
    Donald K. Stern, United  States Attorney, was on brief  for the United
    States.
    February 3, 1998
    *Of the Northern District of Ohio, sitting by designation.
    BOUDIN,  Circuit Judge.   Jose V. Andrade,  Jr., appeals
    from  his conviction  for  conspiracy  to  engage  without  a
    license in the business of  dealing in firearms, 18 U.S.C.
    371,  922(a)(1)(A)  (1994),  and  for  transporting  firearms
    without  a  license  into  his  state  of  residence,  id.
    922(a)(3).   The  facts pertaining  to the  issues  raised on
    appeal  are largely undisputed.   As  the sufficiency  of the
    evidence is not an issue, we abbreviate the facts.
    Andrade,  a  native of  Boston,  attended  Jackson State
    University in Jackson, Mississippi, during 1993 and 1994.  At
    the  time, the authorities  suspected Andrade of  moving guns
    illegally from Mississippi to Massachusetts.  On December 16,
    1994,  Andrade--then in  Boston  for Christmas  vacation--was
    arrested  and questioned  in  circumstances described  below.
    His family apartment  and two others occupied by cousins were
    searched on the same day based on search warrants or consent.
    Andrade was  released the  same day,  questioned  at home  on
    December 19, and rearrested in March 1995.
    On April 26,  1995, Andrade was indicted  for conspiracy
    to engage in gun dealings, together with Christopher Todd and
    Terrance Smith,  who were alleged to have  purchased guns for
    Andrade in Mississippi; as residents,  it was easier for them
    to purchase guns than for Andrade to do so.  In January 1996,
    the  grand  jury  issued  a  superseding  indictment  against
    Andrade, adding the second count (transporting firearms  into
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    Massachusetts).   By  that time,  Todd  had pled  guilty, and
    charges against Smith had been dismissed.
    On  May 8,  1996, the district  court issued  a decision
    refusing to suppress statements that  Andrade had made to the
    authorities on  December 16 and  December 19 and  refusing to
    suppress the results of the  searches of December 16.  United
    States  v. Andrade,  
    925 F. Supp. 71
    , 81  (D. Mass.  1996).
    Andrade  was tried  before  a  jury in  May  1996, the  trial
    lasting about two  weeks.   The most  damaging testimony  was
    given by Todd and Smith.
    Both men gave detailed accounts of Andrade's requests to
    them in 1993 and 1994 to buy handguns and his statements that
    he planned to  take them to Boston  to sell.  Todd  and Smith
    each  described multiple  occasions  on  which, in  Andrade's
    company, they purchased handguns for Andrade in different gun
    shops and pawnshops, Andrade selecting the weapons and taking
    them afterwards from Todd or Smith.  Certain of the guns were
    later recovered by the police in Boston.
    Two  pawnshop   employees,  from   different  pawnshops,
    identified Andrade as  an individual who accompanied  Todd on
    specific occasions.  Michael  Spinola, Andrade's first cousin
    and friend,  admitted saying  that Andrade  had told  Spinola
    that he was bringing guns  from Mississippi to Boston to sell
    and that Spinola  had seen some of the  weapons; but although
    Spinola  had given detailed  testimony to this  effect to the
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    grand jury, at trial he described much of it as lies.   There
    is also testimony  from a former friend of  Andrade, who said
    that   in  December  1994  after  the  search  warrants  were
    executed, Andrade had asked the friend whether he would store
    a suitcase of guns for Andrade.
    Andrade   sought   to  impeach   government   witnesses.
    Although  he   did  not  testify  himself,   Andrade  offered
    testimony of Manuel Correia, who had been his roommate at the
    University in Mississippi.   Correia said that he  had driven
    from Jackson to Boston with  Andrade three times, had seen or
    helped  Andrade pack,  and had  never seen  any guns  around.
    Andrade's own  statements, and  some of  the evidence  seized
    from  the   apartment  searches,   were  introduced  by   the
    government.
    The jury  retired to  deliberate on May  29, 1996.   The
    next day  it asked the court  to answer a question  about the
    substantive count (transporting guns into Massachusetts); the
    question and  court's reply  are at issue  on appeal  and are
    discussed below.   On May  31, Andrade was convicted  on both
    counts and later sentenced to 46 months in prison.
    Andrade's  first claim  of error  is  that the  district
    court  admitted statements that  Andrade had made  during his
    December  16 interrogation at the police  station.  After his
    arrest, Andrade  was taken to  an office in a  Roxbury police
    substation and  handcuffed  to a  chair.   There,  Bureau  of
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    Alcohol,  Tobacco and  Firearms  agent  Daniel Campbell  read
    Andrade the  Miranda warnings,  see Miranda  v. Arizona,  
    384 U.S. 436
    , 478-79  (1966), and asked him if  he understood his
    rights; Andrade  said that he  did.  A state  police officer,
    Francis Matthews, was also present.
    Campbell told  Andrade that  he was under  investigation
    for  gun shipments, and  that the police  had search warrants
    for two premises connected  with Andrade.  Andrade said  that
    he had bought guns in Mississippi but that he was a collector
    and not a dealer.   Andrade also identified a third apartment
    where  he had  stayed.   Campbell  then went  to execute  the
    search warrants  and obtained  permission from  the owner  to
    search the third apartment.
    After Campbell  left, an  INS agent  sought to  question
    Andrade  about his immigration  status.  Andrade  refused, so
    Matthews told  the agent to  leave.  A Boston  police officer
    then entered and, hearing  Andrade tell Matthews that he  was
    not a firearms dealer, accused Andrade of lying; there was an
    angry  reply from Andrade, and Matthews told the detective to
    leave.   After some further discussion between them, Matthews
    said to Andrade  that he would not keep  bothering Andrade if
    he didn't  want to  talk, and Matthews  then spent  about two
    hours on paperwork while Andrade slept in the chair.
    At some  point  during the  searches, police  apparently
    suggested  to  Andrade's  sister  that  she  talk to  him  by
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    telephone;  she did so,  crying and pleading  with Andrade to
    talk  to  the   police.    When  Campbell   returned  to  the
    substation,  Andrade  had  been held  for  about  four hours.
    Campbell woke him  and asked him if he  remembered the rights
    that had been read to him earlier.  Andrade said that he did.
    At this point, Campbell said  that he knew that Todd and
    Smith had purchased guns for Andrade in Mississippi.  Andrade
    replied that he knew Todd and Smith and was present when they
    purchased  guns.  Andrade admitted that he obtained guns from
    Todd and Smith but said that he  had sold them in Mississippi
    to three  men from Houston, although he  also admitted having
    given a couple of guns to two men in Boston.
    Andrade was  released after  offering to  cooperate with
    the police in retrieving weapons that the police thought were
    still at large in Boston.  Seeking this cooperation, Campbell
    and a  Boston Police  detective visited  Andrade  at home  on
    December 19, where Andrade  said that three men  from Houston
    would  soon be  arriving in  Boston  with weapons  and drugs.
    Andrade offered to introduce the  men to Campbell.  Andrade's
    statements on both days were offered in evidence at trial.
    In  this  court,   Andrade  does  not  claim   that  the
    statements  he made were involuntary.   Instead, he says that
    by  repeated questioning police failed  to honor his right to
    remain silent  under the  Miranda doctrine,  see Michigan  v.
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    Mosley, 
    423 U.S. 96
    , 104  (1975),  and that  when  Campbell
    resumed questioning after completing the apartment  searches,
    there was no adequate waiver when Andrade made the statements
    in  the  second  interrogation.    The  district  court  held
    otherwise, and we agree.
    Miranda  requires  that  the police  warn  a  suspect in
    custody  of his  right to  counsel  and his  right to  remain
    silent.  If  the police have failed to give  the warnings and
    obtain a waiver of rights, the  statements are excluded, even
    if  otherwise voluntary.   Where the suspect  asserts that he
    wants to consult  with counsel, questioning must  cease until
    counsel is provided.   See Edwards v. Arizona,  
    451 U.S. 477
    ,
    484-85 (1981).   But  when a defendant  invokes his  right to
    remain silent,  Mosley makes clear  that the  police are  not
    automatically forbidden from later resuming interrogation.
    Andrade's   initial   statements    to   Campbell   were
    voluntarily made after full warnings.  Andrade's later rebuff
    of the INS agent and  police detective were refusals to speak
    to  them but  were  not couched  as a  refusal  to talk  with
    anyone.  When Matthews ended  his own questioning, it appears
    that Andrade  no longer  wanted  to talk  with Matthews,  but
    neither  did  Andrade  rule out  the  possibility  of talking
    later.
    We  see nothing wrong with Campbell's decision to resume
    questioning  of Andrade  after the  searches.   A  reasonable
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    interval  separated  the  two  periods  of  questioning,  see
    Mosley, 
    423 U.S. at 106
    , and there was no repeated attempt to
    reverse  a refusal  to  talk  through  undue pressure.    The
    circumstances  were  quite  different  in  United  States  v.
    Barone, 
    968 F.2d 1378
     (1st  Cir. 1992), where  the defendant
    resisted  questioning,  was  held  for  over  24  hours,  was
    interrogated four times before he began to discuss the crime,
    and was twice intimidated by suggestions that he "would be in
    substantial  [physical]  danger  if  he  returned  to  Boston
    without cooperating."  
    Id. at 1385
    ; see also 
    id. at 1386
    .
    Whether Andrade's later statements reflected a waiver of
    his right to remain silent is a closer issue.  The problem is
    that the Supreme  Court has said, almost in  the same breath,
    that "mere silence is not enough" for a waiver, but that this
    "does not mean  that the defendant's silence, coupled with an
    understanding  of  his   rights  and  a  course   of  conduct
    indicating  waiver, may never  support a conclusion  that the
    defendant has waived his rights."   North Carolina v. Butler,
    
    441 U.S. 369
    , 373 (1979).  The waiver issue, it appears, must
    be decided on the facts.  See 
    id. at 374-75
    .
    Here, we have no reason  to doubt that Andrade knew that
    he had a right to remain silent; at the outset of  the second
    round, Campbell  reminded him  of the  earlier warnings,  and
    Andrade confirmed that he remembered.  As for the intervening
    events,  Matthews'  dismissal  of the  INS  agent  and police
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    detective, when Andrade demurred, fairly conveyed the message
    that Andrade  was in  charge of the  decision whether  and to
    whom  he  would  speak.    By ending  the  initial  round  of
    questioning, Matthews himself reinforced this message.
    Andrade's  subsequent admissions  to  Campbell were  not
    confessions  wrested from  a reluctant  detainee.   Andrade's
    statements were partly consistent  with Andrade's cover story
    (selling the weapons to three men from Houston) and partly an
    attempt to explain  away the presence of some  of the weapons
    in  Boston.   In short,  Andrade  had a  rational reason  for
    choosing not to remain silent.   While a written waiver would
    have   helped  the  government,   it  is  not   a  mechanical
    requirement.1
    Andrade's  next   claim  is   that  the   trial  court's
    instructions  on  the  first  count--conspiracy  to  deal  in
    firearms   without   a  license--set   too  low   a  scienter
    requirement.  18 U.S.C.   924(a)(1)(D) provides that a number
    of weapons offenses, including the offense of dealing without
    a license, require  that the proscribed conduct  be willfully
    undertaken.   Andrade's counsel  asked the court  to instruct
    the jury that this in turn required proof beyond a reasonable
    doubt  that "the  defendant  knew  that Section  922(a)(1)(A)
    1Compare United States v. Christian, 
    571 F.2d 64
    , 66, 69
    (1st Cir. 1978)  (no waiver where a defendant's  signature on
    an FBI waiver form showed  that he had admitted being advised
    of his rights, but conspicuously omitted his signature on the
    line provided for a waiver of those rights).
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    requires  one  who engages  in  the  business  of dealing  in
    firearms to obtain  a dealer's license from  the Secretary of
    the Treasury."
    The  district court  refused  to give  this instruction.
    Instead, it  told the  jury that one  acts willfully  when he
    intentionally commits  acts proscribed by law "with knowledge
    that his conduct is unlawful."  The court said that knowledge
    of  illegality had  to be  proved beyond a  reasonable doubt.
    But it  also instructed that  the government did not  have to
    prove that the defendant knew of the specific statute that he
    was charged  with violating  or that  he intended  to violate
    that particular statute.
    If case law from  other circuits is put to one side, the
    issue appears  easy.  The  term "willful" is used  in various
    ways,  but the standard definitions normally emphasize that a
    defendant  acted  "with  knowledge  that   [his]  conduct  is
    unlawful,"   1 L. Sand,  J. Siffert, W. Loughlin  & S. Reiss,
    Modern  Federal Jury Instructions    3A.01, at  3A-18 (1997).
    Willfulness is often required where a statute outlaws conduct
    commonly  thought  to  be  lawful.    In  some  measure,  the
    willfulness  requirement  reverses  the   usual  rubric  that
    ignorance of the law is no defense.   Just how much ignorance
    may be needed is a different matter.
    Nothing in the traditional  willfulness instruction, nor
    in  its  underlying  purpose,  requires  that  the  defendant
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    possess specific  knowledge of  the statutory  provision that
    makes his conduct unlawful.   To impose such a requirement of
    detailed knowledge  of the  firearms statutes  (to which  few
    judges could  pretend) would make  an enforcement of  the gun
    dealer laws  very difficult.   And the requirement  goes well
    beyond what is needed to  screen out an innocent who honestly
    thought that his conduct was lawful.
    Our  view  accords  with  the  purpose  of  Congress  in
    adopting the willfulness requirement in  the Firearms Owners'
    Protection  Act  of 1986,  Pub.  L.  99-308,  
    100 Stat. 449
    .
    Congress's concern  was that,  because of  the nature  of the
    conduct  and technicality of the statute, some offenses might
    be  committed  by  individuals who  were  unaware  that their
    conduct  had been  made criminal.2    Nothing indicates  that
    Congress was  concerned with protecting individuals  who knew
    that their conduct was unlawful but might not be able to cite
    chapter and verse as to which precise provision made it so.
    The proponents  of the willfulness  requirement, to  the
    extent that we  can discover their comments, said  nothing to
    suggest that the term was  intended to go beyond its ordinary
    2The willfulness requirement applies  to some gun crimes
    and  not  others, and  the  dividing  line is  crudely  drawn
    between actions that anyone might expect to be unlawful, see,
    e.g.,  18  U.S.C.      922(v),  924(a)(1)(B)   (semiautomatic
    assault weapon  crimes), and  actions that  might not  always
    appear  unlawful, see,  e.g.,  id.      922(e),  924(a)(1)(D)
    (shipping  a firearm in  interstate commerce  without written
    notice to the common carrier).
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    meaning, that is,  awareness that one's conduct  is unlawful.
    The only suggestions that the statute might require knowledge
    of  the "details"  of  the  law came  from  opponents of  the
    amendment; given  the incentive to  exaggerate, such  remarks
    normally get  little  weight.    NLRB v.  Fruit  &  Vegetable
    Packers & Warehousemen, Local 760, 
    377 U.S. 58
    , 66 (1964).3
    The  Second   Circuit  has   squarely  ruled   that  the
    government need only prove  that the defendant knew that  his
    conduct was illegal.  United  States v. Collins, 
    957 F.2d 72
    ,
    76-77,  cert. denied,  
    504 U.S. 944
      (1992).   Accord United
    States v.  Allah, 
    130 F.3d 33
    , 38-41 (2d Cir.  1997); United
    States v.  Bryan, 
    122 F.3d 90
    , 91 (2d Cir.),  cert. granted,
    
    118 S. Ct. 622
      (1997).  The  Seventh Circuit's  decision in
    United States v. Obiechie, 
    38 F.3d 309
     (1994), largely points
    toward  a  standard  of   general  knowledge  of  illegality,
    although  one  sentence   suggests  that  knowledge  of   the
    licensing requirement may be required.  See 
    id. at 316
    .
    Several other circuits--including the Third and Eighth--
    say  generally that the defendant must have "knowledge of the
    3Compare 132 Cong.  Rec. 6876 (1986) (statement  of Rep.
    Hughes)  (opponent's  comments  that  the  new statute  would
    require the defendant to know  "what the law is, every detail
    of the law. . . .  [I]t would be a  prosecutor's nightmare"),
    with  id. at 6861  (statement of Rep.  Boehlert) (supporter's
    comment that the  statute rejected mere knowledge  of conduct
    in favor of  "some sort of criminal intent").   The scattered
    and extensive legislative  history is recounted in  D. Hardy,
    The Firearms Owners' Protection Act:   A Historical and Legal
    Perspective, 
    17 Cumb. L. Rev. 585
    , 604-07, 645-53 (1987).
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    law," e.g.,  United States  v. Hayden, 
    64 F.3d 126
    ,  130 (3d
    Cir. 1995)  ("the defendant  must have  acted with  knowledge
    that his  conduct was unlawful"); United States  v. Hern, 
    926 F.2d 764
    ,  767  (8th   Cir.  1991)  ("``willful'   means  an
    intentional  violation of  a  know legal  duty").   But  this
    language  could  be read  either  to support  Andrade  or the
    Second Circuit.  And the matter is  further confused because,
    in  purporting to disagree  with the Second  Circuit, several
    such decisions misunderstand its position.4
    Admittedly,  two  other  circuits  say  that  conviction
    requires proof that the defendant  was aware of the licensing
    requirement   itself,  but  we   do  not  find   these  cases
    persuasive.  See United States  v. Rodriguez, 
    1997 WL 797506
    ,
    at *4  (5th Cir.  Dec. 31, 1997);  United States  v. Sanchez-
    Corcino,  
    85 F.3d 549
    ,  553-54  (11th  Cir.  1996).    Even
    decisions  like  Rodriguez,  purporting to  require  specific
    awareness of the statute, dilute the requirement by inferring
    specific  knowledge  from   circumstantial  evidence.     See
    Rodriguez, 
    1997 WL 797506
    , at *4.
    Such  evidence  is likely  to  be  good proof  that  the
    defendant knew that  his conduct was  unlawful but very  thin
    4The  Third Circuit, for example, ascribes to the Second
    Circuit the view that the government need prove only that the
    defendant  knew what he  was doing.   Hayden, 
    64 F.3d at
    130
    n.6.   The  Second  Circuit  has,  to  our  knowledge,  never
    expressed  this view.    See  Collins, 
    957 F.2d at 77
      (the
    evidence  "demonstrate[d] that  Collins  understood that  his
    firearms sales violated the law").
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    evidence that  the defendant  knew what statute  made it  so.
    See Rodriguez, 
    1997 WL 797506
    , at *6  ("counter-surveillance
    operations," "unease about the sale," and "experience at ``The
    Bunker'  and with firearms" gave defendant a "background from
    which she should have been familiar with the firearms laws").
    See also Obiechie, 
    38 F.3d at 316
     ("An inference of knowledge
    could be  drawn  from the  fact that  [defendant] had  listed
    ``gift' as  his reason for purchasing  the [guns] . .  . after
    having indicated that the first two purchases were for retail
    sale.").   Since juries are  being allowed to convict  on the
    basis of such evidence, nothing  is gained by instructing the
    jury with  language suggesting  that the  standard is  higher
    than it actually is.
    Nor  is Andrade's position  supported, as he  claims, by
    Ratzlaf v. United States, 
    510 U.S. 135
     (1994).  Ratzlaf held
    that a currency structuring violation  required "knowledge of
    illegality [as]  an element"  to show  willfulness, Bates  v.
    United States,  
    118 S. Ct. 285
    , 290 n.6 (1997), which is just
    what  the district  court told  the jury  here.   In Ratzlaf,
    knowledge of  a specific statute  (or something close  to it)
    was also required--not because of the willfulness requirement
    but because the statute itself required a "purpose of evading
    the reporting requirements"  of 31 U.S.C.   5313(a).   See 31
    U.S.C.   5324.   This additional wrinkle is  not part of  the
    present case.
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    In  short, after surveying  the cases, we  feel on solid
    ground  in joining  the Second  Circuit position  that it  is
    enough  that the  defendant  be  aware  that his  conduct  is
    unlawful.  Such knowledge, needless  to say, depends upon the
    circumstances.   In  our  case, the  scale  of Andrade's  gun
    smuggling activity, his  denials of gun dealing in the police
    station,  and  other  evidence  that he  sought  to  hide the
    weapons are powerful  indications of his awareness.   Andrade
    himself makes no claim  that the evidence is  insufficient on
    this score if the district court's instruction is upheld.
    The remaining claim of error  that we think necessary to
    address  concerns  a supplemental  instruction  given by  the
    district court in answer  to a question from  the jury.   The
    second  count charged Andrade with the substantive offense of
    transporting  firearms  without  a license  into  a  state of
    residence.     Following   the  charge   and   a  period   of
    deliberation,  the jury submitted  a written question  to the
    court as follows:
    The jury requests a description of clarification of
    the term  "transport" as it  is used in Page  22 of
    the Jury instructions, i.e.:   Does defendant  have
    to  personally transport or deliver guns?  Is (sic)
    acceptance of said guns in Massachusetts constitute
    transportation,  especially   in  the   phrase  "to
    transport into" or "receive"?
    After consulting with  the parties,  the district  court
    told  the jury  that, given  the government's  theory  of the
    case,  it would not  be enough for the  jury to conclude that
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    the   defendant  "merely   received  or   accepted  guns   in
    Massachusetts."5   However, the court said that Andrade would
    be  guilty if  he had  caused  "an agent,  employee or  other
    associate" to bring  the guns into Massachusetts.   Andrade's
    counsel, in  turn,  objected  to  this  further  supplemental
    instruction.
    The  supplemental charge was legally correct.  At common
    law one is  liable as a principal if  one deliberately causes
    or procuring another to perform a criminal act, 2 W.R. LaFave
    & A.W. Scott, Jr., Substantive  Criminal Law   6.6(a), at 126
    (1986),  and the  principle has  been carried  forward by  18
    U.S.C.   2(b).   Unlike aiding and abetting  liability, id.
    2(a), there is no requirement  that the intermediary be shown
    to  be criminally  liable.   Section 2(b)  is not  a separate
    offense but  a general  principle of  liability that  applies
    without  any need for  reference in  the indictment.   United
    States v. Sabatino, 
    943 F.2d 94
    , 99-100 (1st Cir. 1991).
    Andrade  says  that  delivering  the  instruction  after
    closing  arguments  violated  Fed.  R.  Crim.  P.  30,  which
    requires that the court rule on requested instructions "prior
    to their arguments  to the  jury."   By its terms  and, as  a
    5In  his  original  instructions,  the  trial  judge had
    already told the  jury--consistent with the  indictment--that
    the charge against Andrade had as a necessary element that he
    had  transported  the  guns  into  Massachusetts.    However,
    earlier the  judge had  quoted the statute  in full,  and the
    statute  makes transportation or  receipt criminal,  if other
    conditions are met--which may explain the jury's question.
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    matter  of  necessity, Rule  30  refers  only  to rulings  on
    instructions  requested by  counsel "[a]t  the  close of  the
    evidence or at such earlier time" as the court directs.  Fed.
    R. Crim.  P. 30.   The  rule  simply does  not prescribe  the
    procedure  for supplemental  instructions after the  jury has
    retired.  See  United States v. Fontenot, 
    14 F.3d 1364
    , 1368
    (9th Cir.), cert. denied, 
    513 U.S. 966
     (1994).
    The defense now  says that at least it  should have been
    allowed to address  the jury on  this "new theory,"  pointing
    out to it that there was no specific evidence that anyone had
    transported the guns at Andrade's direction.  We agree that a
    refusal  to permit  further  argument  made  necessary  by  a
    supplemental instruction could amount to  error.  But here it
    is enough to say that no such request to make further closing
    argument  after the supplemental instruction was made in this
    case.
    Further, the notion  of prejudice is fanciful.   Defense
    counsel pointed out to the  jury in her original closing that
    there was no direct evidence showing Andrade's transportation
    of the guns  to Massachusetts.  It had to be equally clear to
    the jury that  there was no direct evidence  that Andrade had
    asked  an "agent, employee  or other associate"  to transport
    the guns for  him.  To spell out the obvious would have added
    nothing.
    -17-
    -17-
    At the same  time, there was enough evidence  for a jury
    to  conclude  that   somehow  Andrade  had  managed   to  get
    Mississippi guns to Boston; among much else, Andrade had told
    Todd and Smith that he planned to do so, and some of the guns
    had  in fact  been recovered  here.   The  government had  no
    obligation to prove the means of transportation.  In context,
    the supplemental instruction  did little more than  make this
    clear to the jury, and properly so.
    There is no  need to address  in detail Andrade's  final
    attack on the  trial judge's instructions; taken as  a whole,
    we do not believe the charge tended to mislead or confuse the
    jury.   Although Andrade's  arguments have not  prevailed, we
    think it  fair to note  that several of them  are substantial
    and that  Andrade has been  represented on  this appeal  with
    singular skill and ingenuity.
    Affirmed.
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