US v. De Masi
Case Date: 10/26/1994
Court: United States Court of Appeals
Docket No: 92-2062
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United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________ No. 92-2062 UNITED STATES, Appellee, v. RALPH DE MASI, Defendant, Appellant. ____________________ No. 92-2064 UNITED STATES, Appellee, v. RONALD MARTEL, Defendant, Appellant. ____________________ No. 92-2065 UNITED STATES, Appellee, v. ROBERT PAPA, Defendant, Appellant. ____________________ No. 92-2066 UNITED STATES, Appellee, v. FRANCIS BONASIA, Defendant, Appellant. ____________________ No. 92-2142 UNITED STATES, Appellant, v. FRANCIS BONASIA, Defendant, Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Walter Jay Skinner, U.S. Senior District Judge] __________________________ ____________________ Before Selya, Boudin, and Stahl, Circuit Judges. ______________ ____________________ Seth M. Kalberg, Jr. for appellant DeMasi; Cornelius H. Kane, Jr. ____________________ ______________________ for appellant Martel; Paul J. Garrity for appellant Papa; and J. ________________ __ Michael McGuinness, with whom McGuinness and Parlagreco, was on brief __________________ __________________________ for appellant Bonasia. Timothy Q. Feeley, Assistant United States Attorney, with whom __________________ Donald K. Stern, United States Attorney, was on brief for appellee. _______________ ____________________ October 26, 1994 ____________________ STAHL, Circuit Judge. Following a seventeen-day STAHL, Circuit Judge. _____________ criminal trial, defendants Francis Bonasia, Ralph DeMasi, Ronald Martel, and Robert Papa were convicted by a jury of various charges stemming from the attempted armed robbery of a Brink's armored truck. On appeal, DeMasi, Martel, and Papa together, and Bonasia individually, raise a series of issues including denial of a suppression motion and challenges to sufficiency of the evidence and various portions of the jury instructions. Bonasia separately assigns error to the denial of severance motions and an evidentiary ruling. The government cross-appeals from the district court's decision in sentencing Bonasia to depart downward from the Sentencing Guidelines. We affirm the district court on all issues raised by the defendants. At the same time, we find that the district court incorrectly interpreted the Sentencing Guidelines in fashioning Bonasia's sentence. We therefore vacate Bonasia's sentence and remand for resentencing. I. I. __ Background Background __________ Because the defendants challenge the sufficiency of the evidence supporting their convictions, we recite the facts in the light most favorable to the verdict. United ______ States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert. ______ __________ _____ denied, 114 S. Ct. 409 (1993). ______ -3- Near the end of July 1991, Federal Bureau of Investigation ("FBI") agents learned that, sometime in late June, DeMasi and Martel had rented a summer campsite at the Pines Campground in Amesbury, Massachusetts. Subsequently, during the noontime hour on the five Tuesdays preceding Tuesday, September 10, 1991, FBI agents observed Martel at the parking lot of the Port Plaza Shopping Center in Newburyport, Massachusetts. Throughout that summer, a Brink's armored truck made a scheduled stop between noon and 1:00 p.m. on Tuesdays at the Shawmut Bank in the Port Plaza Shopping Center. Martel's visits to the Port Plaza parking lot corresponded with the scheduled stop of the Brink's truck. DeMasi accompanied Martel on four of these five visits, missing only the visit on Tuesday, August 27, 1991. Papa and defendant George Pinto1 joined Martel and DeMasi at the parking lot during the visits on August 20, and September 3, 1991. Bonasia was also present at the Port Plaza parking lot on Tuesday, September 3, 1991. While at the parking lot, he met separately with both DeMasi and Martel. A surveillance photograph taken during his meeting with Martel depicts Bonasia and Martel standing together looking toward ____________________ 1. Pinto was tried and convicted along with the other defendants and joined in the consolidated appeal. Pinto, however, died on September 15, 1992, and his appeal was subsequently dismissed. -4- 4 the Shawmut Bank. Afterwards, Bonasia remained in the parking lot and observed the Brink's truck as it made its regularly scheduled stop at the Shawmut Bank. On the evening of August 26, 1991, at around 9:45 p.m., an FBI agent observed Martel in the back seat of an automobile, registered to Bonasia's wife, stopped in front of the Shawmut Bank in the Port Plaza Shopping Center. Driving the automobile was an older white male who fit Bonasia's general physical description. After the vehicle stopped, DeMasi left the car, walked over to the bank and peered inside one of its windows. Later that evening, the vehicle was again observed at DeMasi and Martel's campsite. Bonasia's own gray Buick was observed entering and exiting the Pines Campground several times a week over the course of the summer, including at least three different times on August 30, 1991. At approximately 8:15 a.m. on September 10, 1991, DeMasi and Martel left the Pines Campground. At 9:30 a.m., they were observed standing next to a dark green cargo van which was located on the far side of the Market Basket Mall directly adjacent to the Port Plaza Shopping Center. At this time, FBI agents identified the license plates on the van as stolen. Shortly before noon, DeMasi and Martel met with Bonasia in the Port Plaza parking lot. A series of photographs taken contemporaneously shows Bonasia first -5- 5 walking away from DeMasi's automobile, then turning back toward DeMasi, and finally looking down at his watch. That same morning, Papa and Pinto were also observed and photographed driving through the Port Plaza parking lot in a separate vehicle. After meeting with Bonasia, DeMasi and Martel returned to the green van parked on the far side of the Market Basket Mall, where they were joined by Papa and Pinto. The four defendants exited their automobiles, leaving them unlocked and with the keys in the ignitions.2 The green van, with Papa driving, was next observed entering the Port Plaza parking lot just prior to the time for the expected arrival of the Brink's armored truck. Upon entering the parking lot, Papa drove the green van away from the direct route to the Shawmut Bank and towards where Bonasia was parked. Bonasia had just moved his gray Buick from a more crowded area of the parking lot to a location more easily accessed by the green van. Papa pulled the van adjacent to Bonasia's gray Buick and paused. Bonasia then leaned forward in his seat and gave Papa a "thumb's up" signal. After receiving this signal, Papa drove the green van away from Bonasia's automobile towards the Shawmut Bank. ____________________ 2. Papa and Pinto also left the trunk of their automobile unlocked and open. Moreover, each of the two cars had stolen license plates affixed over their regular plates. -6- 6 Shortly thereafter, FBI agents stopped the green van and arrested DeMasi, Martel, Papa, and Pinto. At the time of the arrests, DeMasi was wearing brown cotton gloves, a nylon stocking pulled down over his forehead, and a bullet- proof vest. Pinto was wearing similar gloves, a nylon stocking, and had a pair of handcuffs in his waistband. Martel also wore gloves, and a third nylon stocking was found in the back of the van next to where he had been sitting. In the front seat next to where Papa had been sitting was a blue ski mask and an additional set of gloves. An operating portable scanner rested on the empty front passenger seat. A loaded semi-automatic nine millimeter Uzi carbine was found behind the front seat, and two loaded semi-automatic nine millimeter pistols and a loaded six-shot revolver were found in the rear compartment of the van. At approximately the same time, Bonasia, who had been walking from a pay phone towards his gray Buick, was arrested by a Rhode Island State Trooper. At the time of his arrest, Bonasia was approximately five to eight feet from his automobile. Immediately after the arrest, an FBI agent standing near Bonasia's automobile observed a pair of binoculars on the front passenger seat inside the gray Buick.3 ____________________ 3. Subsequent to Bonasia's arrest, FBI agents conducted two warrantless searches of Bonasia's automobile. Bonasia successfully moved prior to trial to suppress all evidence -7- 7 Defendants were tried together before a jury. Bonasia, DeMasi, Martel, and Papa were convicted of conspiring and attempting to commit bank robbery, in violation of 18 U.S.C. 371 and 18 U.S.C. 2113(a), and conspiring and attempting to affect interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. 1951. Additionally, all defendants were convicted on four counts of using or carrying a firearm in violation of 18 U.S.C. 924(c). Following the return of the verdicts on these charges, additional evidence was offered, and the jury subsequently found DeMasi, Martel, and Papa guilty on three counts of violating the felon-in-possession statute, 18 U.S.C. 922(g)(1). II. II. ___ Discussion Discussion __________ A. Alleged Pre-Trial Errors ____________________________ 1. Suppression Ruling __________________ Our review of the decision whether to grant or deny a suppression motion is "plenary." United States v. Sanchez, _____________ _______ 943 F.2d 110, 112 (1st Cir. 1991). We defer, however, to a district court's factual findings if, on a reasonable view of the evidence, they are not clearly erroneous. United States ______________ v. Beltran, 917 F.2d 641, 642 (1st Cir. 1990). _______ ____________________ obtained from these searches. -8- 8 DeMasi, Martel, and Papa challenge the district court's refusal to suppress evidence seized from the green van at the time of their arrests.4 They concede that the FBI had probable cause to make the arrests and that, if their arrests were lawful, the van's search and the seizure of evidence were also lawful. Defendants contend, however, that the arrests violated the Fourth Amendment because the FBI effected them without a warrant. They maintain that probable cause arose no later than early on the morning of the arrests, when the FBI identified the green van that DeMasi and Martel had visited as bearing stolen license plates, and that the government should have procured an arrest warrant at that time. Ultimately, they argue that the government's delay and ultimate failure to obtain a warrant negates the legality of their arrests and the subsequent search and seizure of evidence. We disagree. Defendants' argument rests on the proposition that the government's allegedly "predesigned" and "improper" delay somehow invalidated the defendants' otherwise proper arrests. ____________________ 4. Bonasia also contests the failure to suppress the evidence seized from the green van. It is, however, axiomatic that Fourth Amendment rights are personal to the individual. Sanchez, 943 F.2d at 112. Bonasia was not _______ present in the van during the arrest, nor does he own the van or claim any possessory rights in the seized evidence. Hence, Bonasia has no legitimate expectation of privacy on which to base his claim. See United States v. Sepulveda, 15 ___ _____________ _________ F.3d 1161, 1194 (1st Cir. 1993), cert. denied, 114 S. Ct. _____ ______ 2714 (1994). -9- 9 The Supreme Court, however, has refused to attach significance to the fact that the government had ample time to obtain a warrant but declined to procure one. See United ___ ______ States v. Watson, 423 U.S. 411, 423-24 (1976). Specifically, ______ ______ the Court stated that "[t]he necessary inquiry . . . [is] not whether there was a warrant or whether there was time to get one, but whether there was probable cause" at the time of the arrest. Id. at 417. Indeed, the government in Watson ___ ______ conceded that it had more than sufficient time to have obtained a warrant prior to the arrest. Id. at 414; id. at ___ ___ 426 (Powell, J., concurring) (as much as six days elapsed between time probable cause arose and the arrest). Hence, the Supreme Court has directly rejected the underpinnings of defendants' argument. The Constitution does not require a warrant to effect an arrest in a public place. Id. at 423-24. ___ Moreover, law enforcement agents need only possess reasonable suspicion that a criminal activity is occurring in order to stop a moving automobile to investigate. United States v. _____________ Kimball, 25 F.3d 1, 6 (1st Cir. 1994). Here, it is _______ undisputed that the FBI agents had probable cause to stop the green van when it entered the Port Plaza Shopping Center. The arrests of DeMasi, Martel, and Papa were effected in a public place, the middle of the shopping center parking lot. Accordingly, no arrest warrant was required, and whether or -10- 10 not the FBI agents could have obtained one prior to making the arrests is irrelevant. 2. Severance Rulings _________________ We now turn to Bonasia's challenges to the district court's denial of his motions for severance. "Trial courts are afforded considerable leeway in determining severance questions." United States v. Pierro, No. 93-1313, slip op. _____________ ______ at 8 (1st Cir. July 27, 1994). "We reverse the decision to deny a motion for severance only upon a showing of strong prejudice, demonstrating a manifest abuse of discretion that deprived the defendant of a fair trial." United States v. _____________ Nason, 9 F.3d 155, 158 (1st Cir. 1993), cert. denied, 114 S. _____ _____ ______ Ct. 1331 (1994). Prejudice, in this context, "means more than just a better chance of acquittal at a separate trial." United States v. Boylan, 898 F.2d 230, 246 (1st Cir.) ______________ ______ (quotations omitted), cert. denied, 498 U.S. 849 (1990). _____ ______ Bonasia maintains that severance was necessary to avoid the substantial prejudice he suffered due to the spillover effect from evidence admitted at trial against his codefendants, the effect of codefendant DeMasi's pro se ___ __ representation, and the impact resulting when several members of the jury saw his codefendants enter the courtroom in handcuffs.5 We are not persuaded. ____________________ 5. Bonasia perfunctorily raises several additional arguments in support of his severance appeal, such as "antagonistic defenses" existing between him and his codefendants, his -11- 11 Bonasia's spillover claim fails because he has not met his burden of showing substantial prejudice. Though it is true that substantial evidence admitted at trial dealt with him only indirectly, this factor alone does not amount to grounds for reversal. "It is well settled that `[e]ven where large amounts of testimony are irrelevant to one defendant, or where one defendant's involvement in an overall agreement is far less than the involvement of others,' the court of appeals must be `reluctant to second guess severance denials.'" United States v. O'Bryant, 998 F.2d 21, 26 (1st _____________ ________ Cir. 1993) (quoting Boylan, 898 F.2d at 246). Moreover, ______ "[w]here evidence featuring one defendant is independently admissible against a codefendant, the latter cannot convincingly complain of an improper spillover effect." Id. ___ Bonasia, like his codefendants, was charged with conspiring and attempting to rob the armored Brink's truck. Thus, even if the government had tried Bonasia separately, nearly all of the evidence presented here would have been admissible in a separate trial against him to prove the object of the ____________________ inability to obtain exculpatory testimony and his inability to sit with his counsel at trial. Bonasia failed to raise these issues at trial in support of his motions for severance. Moreover, on appeal, he fails to adequately explain how he was prejudiced by them. We therefore deemed them waived. See United States v. Lilly, 13 F.3d 15, 17-18 ___ _____________ _____ (1st Cir. 1994) (failure to raise arguments below results in waiver) and United States v. Zannino, 895 F.2d 1, 17 (1st ___ ______________ _______ Cir.) (perfunctorily raised arguments waived), cert. denied, _____ ______ 494 U.S. 1082 (1990). -12- 12 conspiracy and the attempted robbery. Therefore, Bonasia has not met his burden of showing that he suffered strong prejudice.6 Bonasia's complaint of prejudice resulting from DeMasi's pro se representation is equally without merit. A ___ __ codefendant's pro se representation is not, without more, ___ __ grounds for severance; a defendant must additionally show that strong prejudice resulted from the representation. United States v. Tracy, 12 F.3d 1186, 1194 (2d Cir. 1993); ______________ _____ Person v. Miller, 854 F.2d 656, 665-66 (4th Cir. 1988), cert. ______ ______ _____ denied, 498 U.S. 1011 (1989); see also United States v. ______ ___ ____ ______________ Cross, 928 F.2d 1030, 1039-40 (9th Cir.) (no "compelling _____ prejudice" resulted from codefendant's pro se ___ __ representation), cert. denied, 112 S. Ct. 594 (1991), and _____ ______ ___ cert. denied, 112 S. Ct. 941 (1992). Bonasia, however, _____ ______ points us to no specific prejudicial incidents that occurred before the jury.7 Bonasia therefore cannot convincingly ____________________ 6. We also note that the district court was careful to sever the three felon-in-possession counts charged only against Bonasia's codefendants. These issues were tried to the jury after it had returned a verdict on all the other charges. 7. Bonasia cites two statements by DeMasi as being inflammatory and prejudicial, but the first occurred at a pretrial hearing and the second occurred at DeMasi's sentencing. Bonasia also notes that DeMasi allegedly threatened Bonasia's trial counsel over a dispute concerning the order in which defendants would present final arguments. The alleged threat, however, occurred outside of the courtroom and after the close of evidence. Bonasia's counsel brought the alleged threat to the attention of the judge, who ordered all the defendants to present arguments in -13- 13 argue that the district court should have granted severance on this ground. Bonasia's final claim that he was prejudiced because the jury viewed his codefendants enter the courtroom in handcuffs is similarly unavailing. This incident occurred on the eleventh day of trial, when the jury was mistakenly brought into the courtroom before the defendants entered. The record reveals that, at most, no more than one or two of the jurors briefly observed a single defendant in handcuffs. After the incident, the district judge separately questioned each juror, inquiring whether each had either seen or heard anything unusual, and determined that the danger of prejudice to the defendants was insignificant. The court also carefully cautioned each juror not to discuss the questioning or anything he or she had noticed with the other jurors. We believe that the district court appropriately handled the incident and minimized any possible prejudice to the defendants. The district court therefore did not abuse its discretion in denying Bonasia's renewed severance motion on this ground. Cf. United States v. Pina, 844 F.2d 1, 8 (1st ___ ______________ ____ Cir. 1988) (mistrial not warranted where three jurors saw defendant in shackles). ____________________ alphabetical order. Nevertheless, Bonasia's counsel agreed to argue fourth with DeMasi arguing last. We cannot say that this change in the order of final arguments deprived Bonasia of a fair trial. -14- 14 B. Alleged Trial Errors ________________________ 1. Evidentiary Ruling __________________ Bonasia challenges the admission at trial of testimony from an FBI agent who observed binoculars present on the front seat of Bonasia's gray Buick following Bonasia's arrest. Bonasia argues that the testimony was incorrectly admitted because all evidence resulting from two warrantless searches of his automobile (which, he argues, would include any evidence of the binoculars) had been suppressed prior to trial. This argument is without merit. In general, we review a district court's decision to admit evidence for abuse of discretion. See, e.g., United ___ ____ ______ States v. Fisher, 3 F.3d 456, 461 (1st Cir. 1993). The ______ ______ suppression order excluded "all evidence obtained as a result" of the illegal searches of Bonasia's automobile. The order, however, did not and could not extend to evidence that derived from an independent legal source apart from the unlawful searches. See Murray v. United States, 487 U.S. ___ ______ _____________ 533, 536-41 (1988) (explaining independent source doctrine). Thus, the question is whether the FBI agent's testimony concerning the binoculars had an independent source apart from the illegal searches. On this point, it is beyond doubt that "[i]f an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy." Horton v. California, 496 U.S. 128, 133 (1990). ______ __________ -15- 15 Furthermore, "[t]here is no legitimate expectation of privacy, shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion) _____ _____ (citation omitted); see also United States v. Ware, 914 F.2d ___ ____ _____________ ____ 997, 1000 (7th Cir. 1990); Brumfield v. Jones, 849 F.2d 152, _________ _____ 155 (5th Cir. 1988). The agent who testified at trial about the binoculars participated in neither the illegal searches of Bonasia's automobile nor Bonasia's arrest. At the time of the arrest, the agent was legitimately present in the parking lot, standing several feet away from Bonasia's automobile. At trial, the agent merely testified to observing the binoculars which were in "plain view" on the front seat of the vehicle. Therefore, the agent's testimony had an independent legal source apart from the illegal searches and was properly admitted.8 2. Sufficiency of Evidence _______________________ We now turn to the defendants' challenges to the sufficiency of the evidence. In assessing evidentiary sufficiency, "[o]ur task is to review the record to determine ____________________ 8. Bonasia also challenges a reference by the district court to the binoculars in the jury instructions and a similar reference by the prosecutor in summation. Because we rule that the testimony concerning the binoculars was properly admitted, neither of the challenged references was improper. -16- 16 whether the evidence and reasonable inferences therefrom, taken as a whole and in the light most favorable to the prosecution, would allow a rational jury to determine beyond a reasonable doubt that the defendants were guilty as charged." United States v. Mena-Robles, 4 F.3d 1026, 1031 _____________ ___________ (1st Cir. 1993), cert. denied, 114 S. Ct 1550 (1994), _____ ______ modified on other grounds sub nom., United States v. Piper, ________ __ _____ _______ ___ ____ _____________ _____ No. 94-1197 slip op. (1st Cir. Sept. 8, 1994). In arriving at our determination, we must credit both direct and circumstantial evidence of guilt, but "must do so without evaluating the relative weight of different pieces of proof or venturing credibility judgments." United States v. ______________ Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We need not be _________ satisfied that no verdict other than one of guilt could reasonably have been reached; rather, we need only satisfy ourselves that the record plausibly supports the verdict the jury did return. Id. ___ Bonasia complains that the evidence against him is insufficient to support his convictions for conspiracy and attempt. He maintains the government failed to offer any evidence that established his specific intent to join in either the criminal conspiracy or the attempt. Moreover, he argues that the evidence amassed against him does not support a finding that he performed a "substantial step" towards the completion of the attempted robbery. In essence, Bonasia -17- 17 contends that the evidence establishes only his mere presence at the scene of the crime, and his sporadic association with DeMasi and Martel. Again, we disagree. To prove a charge of conspiracy, the government must establish beyond a reasonable doubt that an agreement or working relationship existed, that the agreement had an unlawful purpose, and that the defendant voluntarily entered into the agreement. See United States v. David, 940 F.2d ___ _____________ _____ 722, 735 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301 _____ ______ (1992). Moreover, the government must prove that the defendant both intended to agree and to effectuate the commission of the underlying offense that was the object of the conspiracy. United States v. Piper, No. 94-1197, slip _____________ _____ op. at 8 (1st Cir. Sept. 8, 1994). "[T]he proof of a defendant's conspiratorial involvement may consist of indirect evidence, including reasonable inferences drawn from attendant circumstances." Echeverri, 982 F.2d at 679. _________ To prove a charge of attempt, the government must show beyond a reasonable doubt the defendant's intent to commit the offense charged and that the defendant performed a substantial step towards the completion of the offense. United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir. _____________ __________ 1993), cert. denied, 114 S. Ct. 731 (1994). Respecting _____ ______ Bonasia's "mere presence" argument, we have noted that "`the culpability of a defendant's presence hinges upon whether the -18- 18 circumstances fairly imply participatory involvement. In other words, a defendant's "mere presence" argument will fail in situations where the "mere" is lacking.'" United States _____________ v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (quoting ________________ Echeverri, 982 F.2d at 678), petition for cert. filed, 63 _________ ________ ___ _____ _____ U.S.L.W. 3066 (U.S. June 6, 1994) (No. 94-93). The government's evidence against Bonasia is clearly sufficient to support the jury's finding of guilt beyond a reasonable doubt on both the conspiracy and the attempt counts. Bonasia's presence at the September 3, 1991, surveillance and his August 26, 1991, nighttime visit to the parking lot with DeMasi and Martel plausibly support an inference that he participated in the planning of the attempted robbery. This inference is strengthened by Bonasia's frequent visits over the course of the summer to DeMasi and Martel's campsite at the Pines Campground. Moreover, Bonasia's activities on the day of the arrest tend to establish his complicity. Even aside from the much disputed "thumb's up" signal,9 Bonasia's activities on ____________________ 9. Bonasia fervently maintains that we should disregard the FBI agent's testimony concerning the alleged sighting of the "thumb's up" signal because, under the conditions, such a sighting was a "physiological impossibility." Bonasia's "thumb's up" signal was observed by an FBI special agent who was located in an undercover van in the parking lot some 60 to 65 yards away. The agent made his observation while peering through a hole in a plastic sheet that covered the windows of the van. At trial, both sides introduced photographs relating to whether the observation was possible. -19- 19 September 10, 1991, go well beyond mere presence. He arrived at the parking lot more than an hour before the scheduled arrival of the Brink's truck and met with DeMasi and Martel. Moreover, an FBI agent testified that, shortly before the green van entered the Port Plaza parking lot, Bonasia, who was pacing back and forth watching the area, tellingly gave the van in which the agent was riding a "very close look" as it drove up. This evidence supports an inference that Bonasia acted as a lookout during the attempted robbery. His participation is further corroborated by the fact that, upon entering the parking lot, Papa drove the green van towards Bonasia's gray Buick and pulled to a momentary stop alongside it before heading to where the Brink's truck was to make its scheduled stop. Significantly, prior to this detour, the defendants in the green van temporarily had been unable to view the area where they would encounter the Brink's truck. This underscores their need for a lookout. In sum, there is sufficient evidence to support a finding that Bonasia voluntarily and intentionally joined the conspiracy, and that he performed a substantial step towards the completion of the robbery. Bonasia also challenges the sufficiency of the evidence on the related firearm convictions under 18 U.S.C 924(c). He points out that these charges were submitted to the jury under an aiding and abetting theory, which requires -20- 20 the government to establish that the defendant knew that weapons would be used during the crime. See Torres- ___ _______ Maldonado, 14 F.3d at 103 (to sustain 924(c) conviction _________ under an aiding and abetting theory "accomplice `must have known to a practical certainty that the principal would be [using] a gun'" (quoting United States v. Powell, 929 F.2d ______________ ______ 724, 728 (D.C. Cir. 1991)). Bonasia contends that the record lacks any evidence to support a finding that he knew his codefendants would be using or carrying firearms during the attempted robbery. As we have noted, the evidence adduced at trial more than adequately supports a finding that Bonasia joined in the conspiracy and participated in the attempted robbery of the Brink's truck. This same evidence likewise supports a finding that Bonasia knew that his four codefendants would be using or carrying firearms during and in relation to the attempted robbery. In particular, two different Rhode Island State Troopers testified that Bonasia remained in the parking lot on September 3, 1991, and observed the Brink's truck for the entirety of its scheduled stop. From this, a rational jury could conclude that Bonasia understood the scope of what a robbery of an armored truck with two armed guards would entail. It therefore could reasonably infer that Bonasia must have known that his coconspirators would be using weapons. As we have noted before, "[i]n the last analysis, -21- 21 criminal juries are not expected to ignore what is perfectly obvious." Echeverri, 982 F.2d at 679; see also United States _________ ___ ____ _____________ v. Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denied, ________ _____ ______ 486 U.S. 1009 (1988).10 DeMasi, Martel, and Papa's sufficiency challenges need detain us only briefly. These defendants essentially contend that the evidence was insufficient to establish that they had the specific intent to rob the armored Brink's truck. They maintain that, at most, the government proved only that they were present in the rear of the green van in the Port Plaza parking lot with some unspecified illicit purpose. Defendants' argument is completely unconvincing. ____________________ 10. In a submission after oral argument, Bonasia directed this court to United States v. Medina, 32 F.2d 40 (2d Cir. _____________ ______ 1994), in which the Second Circuit reversed a defendant's conviction for aiding and abetting a violation of 18 U.S.C. 924(c) due to insufficient evidence. Notwithstanding the defendant's knowledge of expected firearm use and role in instigating the planning of the crime, the Second Circuit held that the evidence was insufficient to show that the defendant "consciously and affirmatively assisted" in the specific 924(c) violation. Id. at 45. ___ Here, Bonasia's circumstances are clearly different from those in Medina. The defendant in Medina was not ______ ______ present at and did not participate in the commission of the underlying felony. Id. at 42-43. Indeed, this fact weighed ___ significantly in Second Circuit's analysis. Id. at 46 ("Had ___ Medina been present at the attempted robbery, we would consider whether his conduct at the scene facilitated or promoted the carrying of a gun, or whether he benefitted from the gun's use so that he could be said to constructively possess the gun; but he was not there." (citation omitted)). Here, Bonasia was present at and played a significant part in the attempted armed robbery. -22- 22 Substantial evidence was introduced at trial which tended to establish that at least one of these defendants (and all of them at one time or another) was present and carefully observed the scheduled stop of the Brink's truck on each of the five Tuesdays preceding the foiled attempted robbery. In addition, an FBI agent testified that on September 3, 1991, DeMasi, Martel, and Papa waited for and then followed a Brink's truck as it made one of its scheduled stops prior to reaching the Port Plaza Shopping Center. From this evidence, a rational jury could conclude that the defendants intended to rob the Brink's armored truck. The evidence therefore supports the convictions of DeMasi, Martel, and Papa. 3. Jury Instructions _________________ We now turn to defendants' challenges to various portions of the jury instructions. Only the first of these, which assigns as error an instruction pertaining to the crediting of witness testimony, was raised before the district court. The remainder were raised for the first time on appeal. Accordingly, with the exception of the first, we will review all of defendants' challenges only for plain error. Fed. R. Crim. P. 30, 52(b); United States v. Whiting, _____________ _______ 28 F.3d 1296, 1308 (1st Cir. 1994), petition for cert. filed, ________ ___ _____ _____ ___ U.S.L.W. ___ (U.S. Aug. 23, 1994) (No. 94-5760). -23- 23 Defendants initially challenge a section of the jury charge in which the district court gave instructions on evaluating witness testimony.11 As noted, the court ____________________ 11. The defendants objected to the underlined language which is set out in context below: How do you deal with witnesses? Well, most of the Government witnesses in this case have been FBI agents. Not all of them, but certainly the bulk of the testimony has come in through FBI agents. There's nothing magic about them. You give the FBI agents the same scrutiny as you would anybody else, and you test their credibility by listening to them, determining what you can from tone of voice and expression of face. You try to search out the interior logic of their testimony: does it all fit together, does the body English that goes with the testimony give you a clue. You may consider that. It may give you a clue as to reliability, as to the confidence that the witness has. It may give you a clue as to whether the defendant is lying. In short, you use all of the techniques that you have developed in your lives for determining whether somebody is giving you reliable information. You do this all the time. You go ____________________________________ and buy a major appliance or an _________________________________________ automobile. You listen to the salesman. _________________________________________ You listen to political candidates, you _________________________________________ try to sort out disputes in your own _________________________________________ household, perhaps the children or the _________________________________________ in-laws or the neighbors or something, _________________________________________ and you try to make a judgment about who _________________________________________ is giving you the closest approximation _________________________________________ of the truth. That's probably about what _________________________________________ we get at best. And you have to be _________________________________________ satisfied that all of these stories _________________________________________ together, all of this testimony together, _________________________________________ with its blemishes and defects, satisfies _________________________________________ you beyond a reasonable doubt of the _________________________________________ defendant's guilt before you can return a _________________________________________ finding of guilty. __________________ -24- 24 instructed the jury that, in assessing the testimony, it should utilize the experience and skills it had attained from making everyday judgments and decisions. Moreover, the district court explained that in rendering these assessments "you try to make a judgment about who is giving the closest approximation of truth." Defendants contend that these instructions trivialized the fact-finding function of the jury and had the overarching effect of reducing the government's burden of proof. We are unpersuaded. It is beyond dispute that the government must prove every element of a charged offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). Failure of a ______________ verdict to be based on a finding of guilt beyond a reasonable doubt is a structural error of constitutional magnitude and is not subject to harmless error review. Sullivan v. ________ Louisiana, 113 S. Ct. 2078, 2082 (1993). It is also true, _________ however, that each piece of evidence and every "inference forming a part of the mosaic making up the jury's ultimate finding of guilt beyond a reasonable doubt need [not] itself ____________________ Now, you can take part of a witness's story, part of a witness's testimony and reject others. You can take the part that seems to be reliable and reject what is unreliable, or what appears to be unreliable. You can also say, well, if this man is unreliable in one respect, I won't trust him in any other. But it is up to you. Those judgments are yours. That's what you're here for. -25- 25 be established beyond a reasonable doubt." United States v. _____________ Corgain, 5 F.3d 5, 10 (1st Cir. 1993). Hence, the _______ appropriate question on review is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Victor v. Nebraska, 114 S. _______ ______ ________ Ct. 1239, 1243 (1994). Moreover, in reviewing jury instructions, we measure each instruction, not in isolation, but within the context of the charge as a whole. United ______ States v. Akinola, 985 F.2d 1105, 1112 (1st Cir. 1993). ______ _______ The challenged instructions do not endeavor to set forth the government's burden of proof (which the district court correctly described); instead, they guide the jury in evaluating and considering the credibility of witness testimony. This is not a situation in which the district court has attempted to define reasonable doubt by analogizing to the standard employed by individuals in the significant decisions of daily life. See, e.g., United States v. ___ ____ ______________ Nickens, 955 F.2d 112, 119-120 (1st Cir.), cert. denied, 113 _______ _____ ______ S. Ct. 108 (1992); Dunn v. Perrin, 570 F.2d 21, 24-25 (1st ____ ______ Cir.), cert. denied, 437 U.S. 910 (1978). Instead, the court _____ ______ was merely exhorting the jury to fulfill its function by bringing common sense judgment to bear on the evaluation of the different and inevitably conflicting testimony of the -26- 26 various witnesses. This certainly does not constitute reversible error. Moreover, as defendants concede, the district court accurately set forth the proper standard for the government's burden of proof in other sections of the charge. Our review of the instructions reveals that the district court referred to the "beyond a reasonable doubt" standard no less than twelve times in the nine pages of jury instructions preceding the isolated section challenged here. This overwhelming number of correct references negated any chance that the contested statements were misconstrued by the jury as somehow reducing the government's burden of proof. See United States ___ _____________ v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987) (no reversible _____ error where jury could not have been misled in light of numerous other correct instructions about presumption of innocence and government's burden). Defendants, as we have noted, also raise for the firs |