United States v. McGill
Case Date: 10/19/1992
Docket No: 91-1588
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No. 91-1588 UNITED STATES OF AMERICA, Plaintiff, Appellee, v. STEVEN McGILL, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U. S. District Judge] Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges. David N. Cicilline for appellant. Marie K. McElderry, Attorney, United States Department of Justice, with whom John R. Dunne, Assistant Attorney General, David K. Flynn, Attorney, United States Department of Justice, Lincoln C. Almond, United States Attorney, and Anthony DiGioia, Assistant United States Attorney, were on brief for appellee. SELYA, Circuit Judge. Defendant-appellant Steven McGill was indicted by a federal grand jury on a charged violation of 18 U.S.C. 242 (1982). The government alleged in substance that McGill was a correctional officer at a state prison in Rhode Island; that on July 10, 1984, while on duty, he subjected an inmate, Roger Alessio, to a simulated version of "Russian Roulette"; that, in the course of this perilous fandangle, McGill aimed a firearm at Alessio's head and pulled the trigger; and that the gun discharged, sending a bullet into Alessio's skull, killing him and thus violating his civil rights. Following trial in the United States District Court for the District of Rhode Island, a jury found McGill guilty as charged. The district court sentenced him to a twelve-year prison term. McGill appeals. We affirm. We need not linger long over this appeal. We discuss the assigned errors in decurtate fashion, indicating the general basis for our rulings. In our view, no more is merited. A. The first two assignments of error relate to the district court's jury instructions. In fine, McGill alleges that the court erred both in defining "willfulness" and in describing section 242's "under color of . . . law" requirement. The short, conclusive response to these importunings is that no contempo- raneous objection was lodged in either respect when the district court delivered its jury instructions. Hence, the objections were waived. To be sure, an appellate court can vacate a defendant's conviction on the basis of instructional error, even in the absence of a contemporaneous objection, if the error is "plain." See United States v. Natanel, 938 F.2d 302, 311 (1st Cir. 1991); United States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir. 1987); United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. 844 (1987). But, although the possibility is often discussed, the actuality is seldom seen. When all is said and done, "[t]he plain error hurdle is high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). In this instance, the hurdle is insurmountable. While the appellant's points appear to possess a patina of plausibility when bits and pieces of the district court's charge are wrested out of context, the patina dissolves completely when the charge, as needs must, is "taken in its entirety." Griffin, 818 F.2d at 100. The judge's instructions, as a whole, spelled out the elements of the offense and the government's burden of proof. They also adequately communicated the theory of McGill's defense and the workings of the presumption of innocence. In the last analysis, we are hard pressed to discern instructional error to any degree |