US v. Flynn
Case Date: 10/11/1994
Court: United States Court of Appeals
Docket No: 93-1298
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-1298 UNITED STATES, Appellee, v. GARY P. NEAL, Defendant, Appellant. _____________________ No. 93-1334 UNITED STATES, Appellee, v. WILLIAM F. KENNEY, JR., Defendant, Appellant. _____________________ No. 93-1335 UNITED STATES, Appellee, v. CHARLES J. FLYNN, a/k/a CHUCKY, Defendant, Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Shane Devine, Senior U.S. District Judge] __________________________ ____________________ Before Selya and Boudin, Circuit Judges, ______________ and Carter,* District Judge. ______________ ____________________ Paul W. Pappas, by Appointment of the Court, for appellant ______________ Gary P. Neal. Michael J. Iacopino, by Appointment of the Court, with whom ___________________ Timothy I. Robinson and Brennan, Caron, Lenehan & Iacopino were ____________________ ___________________________________ on brief for appellant William F. Kenney, Jr. Robert Sheketoff with whom Sheketoff & Homan was on brief ________________ __________________ for appellant Charles Flynn. Robert J. Veiga, Assistant United States Attorney, with whom _______________ Paul M. Gagnon, United States Attorney, was on brief for ________________ appellee. ____________________ September 30, 1994 ____________________ ____________________ * Of the District of Maine, sitting by designation. -2- CARTER, Chief District Judge. Appellants Charles ______________________ Flynn, William Kenney, and Gary Neal were found guilty by a jury on a number of criminal charges stemming from a series of armed robberies that took place in New Hampshire. Appellants challenge their convictions on the basis of various pre-trial, trial, and post-trial rulings issued by the court as well as statements made by the Government. We affirm on all but two of the issues raised by Appellants. The first of these issues involves various Jencks Act requests made by Appellant Flynn. We find that the record indicates the district judge may have applied an erroneous legal standard in ruling that various materials did not qualify as statements under the Jencks Act. Accordingly, we will remand to the district court for an evidentiary hearing to determine whether statements demanded by Appellant Flynn should have been disclosed under the Jencks Act and, if so, whether nondisclosure constituted harmless error. We also remand to the district court on the issue of the order of restitution entered against Appellant Neal with instructions that a hearing be held to determine whether the full amount of monetary losses suffered by First New Hampshire Bank was caused by the conduct underlying Neal's convictions. At this point in the proceedings, we choose not to vacate the court's Jencks Act rulings or the order of restitution but instead remand to the district court for the limited purpose of making supplemental findings with regard to these two issues. -3- In the interim, we will retain appellate jurisdiction so that we may review the court's augmented record and subsequent determinations. FACTUAL BACKGROUND FACTUAL BACKGROUND __________________ Appellants were tried by a jury in the District of New Hampshire during the months of October and November of 1992. The evidence presented and believed by the jury demonstrated that Appellants were involved, in varying capacities, in carrying out five armed robberies over a five-month period beginning with the armed robbery of a supermarket and ending in armed robbery of the First New Hampshire Bank ("First N.H.").1 Appellants were tried ____________________ 1 Appellants were initially indicted for committing seven crimes which included: (1) the armed robbery of the Demoulas Market Basket, a supermarket in Portsmouth, New Hampshire, on April 13, 1991; (2) the armed robbery of an employee of the Abercrombie and Finch restaurant as she was attempting to make a night deposit of $4800 at a Fleet Bank in North Hampton, New Hampshire on May 19, 1991; the jury rendered a not guilty verdict on counts involving this robbery; (3) the armed robbery of an employee of a retail store called the Dress Barn while she was attempting to deposit $763 into the night deposit box at the First National Bank of Portsmouth, New Hampshire on June 7, 1991; (4) the armed robbery on June 30, 1991, of an employee of Phantom Fireworks, Inc. in Seabrook, New Hampshire; counts involving this robbery were -4- on a thirty-two-count indictment charging them as follows: Counts 1 and 2 charged Appellants Flynn _______________ and Kenney with violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(c) and (d), with each of the seven robberies alleged as predicate acts; Count 3 charged all three Appellants with _______ conspiracy to commit robbery of First N.H. in violation of 18 U.S.C. 371 and 18 U.S.C. 2113(a) and (d); Counts 4 and 5 alleged that Appellants ________________ Flynn and Kenney committed armed and unarmed bank robbery of First N.H., in violation of 18 U.S.C. 2113(d) and (a) and 18 U.S.C. 2; Counts 6 through 15, 17, and 18 alleged _________________________________ conspiracy and interference with commerce by threats or violence, in violation of the Hobbs Act, 18 U.S.C. 1951, with one or more counts corresponding to each of the seven robberies. Flynn was named in all counts; Kenney was named in counts 8 through 18; Counts 16 and 20 through 25 charged the _____________________________ use and carriage of firearms during and in relation to crimes of violence, in violation of 18 U.S.C. 924(c)(1), with ____________________ dismissed by the court; (5) the armed robbery on August 3, 1991, of the home of James Fitzpatrick, the owner of a chain of stores known as Lighthouse Markets, Inc., in Hampton, New Hampshire; (6) the armed robbery on August 17, 1991, of the person of James Fitzpatrick after he made his night rounds to collect receipts at each of his stores; and (7) the armed robbery of the First N.H. in Stratham, New Hampshire on September 9, 1991. -5- each count corresponding to one of the seven robberies. Flynn was named in all counts and Kenney was named in all counts except Count 20; Counts 19 and 26 through 29 charged ________________________________ possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). Flynn was named in Count 19 only; Kenney was named in Count 26 only; Count 30 charged Appellant Neal as an ________ accessory after the fact, in violation of 18 U.S.C. 3; Count 31 charged money laundering against ________ Appellants Neal and Flynn, in violation of 18 U.S.C. 1956 and 18 U.S.C. 2; and Count 32 charged criminal forfeiture of a ________ 1987 Nissan automobile against Neal and Flynn, in violation of 18 U.S.C. 981 and 1956. Government's Consolidated Brief at 3-6. Appellants were initially charged with three other co- conspirators, Bruce Raineri, Brian Raineri, and Richard Ferguson. These three men pled guilty and cooperated to varying extents with the Government. Several other alleged co-conspirators, including Arthur Cosgro and Thomas McQueeney, also provided evidence against Appellants. The evidence presented during the thirty-one-day trial is sufficient to justify the following conclusions of fact. Appellant Charles Flynn, a/k/a "Chuckie," was the leader and organizer of the group of co-conspirators. Flynn scoped out robbery locations, devised the plans, and recruited others to commit or assist in the crimes. Appellant William Kenney participated as the gunman and shared in proceeds of four -6- robberies planned by Flynn, excluding the Market Basket robbery. Kenney also assisted Flynn in -7- surveilling armored cars that serviced various stores and banks which were prospective robbery sites. Appellant Gary Neal played a more limited role in the overall conspiracy (this is reflected by the fact that he was indicted on only four counts and found guilty on two counts limited to the bank robbery).2 The evidence demonstrated that Neal provided his home to the co- conspirators where they planned the bank robbery and took refuge after they committed the crime. Immediately following the robbery, Neal carried a box from the getaway car into his home containing the gun used in the bank robbery along with the stolen proceeds. He also used proceeds from the robbery to purchase a car in his name that was used by Flynn and Kenney to travel to Arizona and then to California in order to escape the scene of the crime. On their trip, Flynn and Kenney disposed of clothes used in the crime and stored the gun used in all five crimes in a garage belonging to Patricia Ferguson, a co-conspirator's relative. On defendants' motions at the close of the evidence, the court dismissed RICO Counts 1 and 2, finding the Government failed to demonstrate a sufficient continuity of offenses. The court also dismissed Counts 12, 13, and 23, all involving the Phantom Fireworks robbery. The jury then rendered its verdicts, finding Flynn guilty on all remaining charges against him except ______ Counts 8, 9, and 21, involving the night deposit robbery of an ____________________ 2 The four counts include conspiracy to commit bank robbery, accessory after the fact to bank robbery, money laundering, and criminal forfeiture. -8- employee of Abercrombie and Finch restaurant. The jury found Kenney guilty on all remaining counts against him except for the ______ counts involving the Abercrombie and Finch robbery and found Neal guilty of being an accessory after the fact and money laundering, as alleged in Counts 30 and 31, but not guilty on count 3, alleging conspiracy to rob First N.H. DISCUSSION DISCUSSION __________ Appellants raise a litany of challenges against various rulings issued by the district court judge and statements made by the Government throughout the proceedings. The Court finds merit in Appellant Flynn's argument that both the Government and the district judge were operating under an improper legal standard in determining what statements qualified as Jencks Act material and should have been disclosed to the defense during trial. The Court also finds merit in Appellant Neal's argument that the court erred in ordering $266,500 in restitution against him for his role in the First N.H. robbery. These arguments will be treated first. The Court finds no merit in Appellants' remaining claims which will be discussed, in turn, in the order of joint challenges raised by Appellants followed by challenges raised individually by Flynn, Kenney, and Neal. I. LEGAL STANDARD USED BY THE I. LEGAL STANDARD USED BY THE ______________________________ COURT AND GOVERNMENT IN DETERMINING WHAT COURT AND GOVERNMENT IN DETERMINING WHAT ________________________________________ EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN _______________________________________________ A. Brady Claims A. Brady Claims ________________ Appellant Flynn has framed much of his argument on appeal in terms of a Brady violation. Brady v. Maryland, 373 _____ _________________ -9- U.S. 83 (1963)(holding that a prosecutor's suppression of evidence favorable to and requested by a defendant violates due process where the evidence is material to guilt or to punishment). Appellant points to statements in the record indicating that the Government attorney harbored an erroneously narrow view of what materials were exculpatory and should have been disclosed to the defense pursuant to Brady and its progeny. _____ Flynn acknowledges that the Government provided certain disputed materials to the trial court for in camera review. However, he __ ______ argues that the Government's erroneous view of what qualified as Brady, as a threshold matter, most likely resulted in the _____ withholding of many other exculpatory materials from the court. He requests this Court to unseal the documents that were turned over, remand the case for further hearing in the district court, and order that the Government disclose all other Brady material _____ in its possession. A careful and thorough review of the record supports Appellant's assertion that the Government attorney misunderstood the reach of Brady.3 However, in virtually every instance of _____ ____________________ 3 In one example of this misunderstanding, Appellant's counsel inquired whether any Brady material existed with respect to Richard Ferguson, a co-conspirator who cooperated with the Government. The Government attorney replied: First of all, it's not Brady material. If it's anything, it's impeachment material, if it is even that. Tr. (October 19, 1992) at 115. In a second incident, the Government attorney stated that: Prior inconsistent statements are not -10- dispute pointed out by Appellant and the Government, the Government attorney indicated on the record that all materials ___ related to the witness in question were being turned over to the district judge for review.4 Appellant makes no argument that ____________________ Brady. I'll be happy at some point to give Mr. Wilson a lesson in the difference between Brady and impeachment material, but there is a difference all the way up to the United States Supreme Court. Tr. (October 20, 1992) at 77. These statements reflect a misunderstanding on the Government's part of the Brady rule. The Supreme Court has _____ clearly stated that impeachment evidence may well qualify as Brady material. United States v. Bagley, 473 U.S. 667, 676 _________________________ (1985); Giglio v. United States, 405 U.S. 150, 154 (1972). As ________________________ the Court explained in Giglio: ______ When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within th[e] general rule [of Brady]. Giglio, 405 U.S. at 154. ______ The significance of the Government's failure to appreciate the nature of exculpatory evidence under Brady is demonstrated by its evaluation of materials related to the witness James Fitzpatrick, who was testifying about a robbery of his home. Tr. (October 28, 1992) at 115. The court reviewed these materials, which the Government had claimed did not fall under Brady, and disclosed them to the defense because it found that the materials contained exculpatory evidence. Id. at 121. The defense was able to use ___ the materials quite effectively in the cross-examination of Fitzpatrick. Id. at 123-24 and 126-44. ___ 4 All materials were supplied for the court's review regarding Brady or Jencks Act requests with respect to witnesses Laura _____ MacPherson, Tr. (October 8, 1992) at 119-21; Anita Ramsdell, Id. ___ at 217; Richard Ferguson, Tr. (October 9, 1992) at 225-26, Tr. (October 14, 1992) at 153; Sergeant Coleman Forbes, Tr. (October 15, 1992) at 123, Tr. (October 16, 1992) at 142; Terrence Kinneen, Tr. (October 16, 1992) at 91; Douglas Scamman, Tr. (October 19, 1992) at 172-74; Arthur Cosgro, Tr. (October 20, -11- the district judge erred in his understanding of Brady, other _____ than pointing out that the judge never corrected the Government attorney when he mischaracterized Brady's mandate. Our reading _____ of the record satisfies us that the district judge conscientiously reviewed all materials in question. Because Appellant points to no other evidence to indicate that exculpatory evidence was withheld in violation of Appellant's Fifth Amendment right to a fair trial, we affirm the district court's Brady rulings. B. Disclosure Under the Jencks Act B. Disclosure Under the Jencks Act ___________________________________ Appellant's other argument, that the Government attorney too narrowly construed the reach of the Jencks Act, has much more bite because the record indicates that the district judge adopted the Government's misinterpretation and ruled against several Jencks Act requests on an erroneous legal ground. Before discussing the legal error in detail, it is necessary to consider the purpose and provisions of the Act. The Jencks Act establishes procedures whereby a criminal defendant may exercise his limited right to obtain previous statements made by government witnesses that are in possession of the United States Government to be used for impeachment purposes. 18 U.S.C. 3500. Subsections (a) and (b) of the Act provide that prior statements are not subject to ____________________ 1992) at 74; Linda Sherouse, Tr. (October 27, 1992 -- afternoon session) at 87; Thomas McQueeney and Brian Raineri, Tr. (October 28, 1992) at 17, Tr. (November 2, 1992) at 3-4, Tr. (November 3, 1992) at 219-20; James Fitzpatrick, Tr. (October 28, 1992) at 115, 121. -12- disclosure until the witness has testified on direct examination and are available only to the extent that the statements relate "to the subject matter as to which the witness has testified." 18 U.S.C. 3500(a) and (b). The Act further requires the defendant to make a motion for production. 18 U.S.C. 3500(b). Subsection (e) defines "statements" subject to the Act as follows: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. 3500(e). At issue in this case is the reach of subsections (e)(1) and (e)(2) which first came into dispute on the third day of trial. 18 U.S.C. 3500 (e)(1) and (e)(2). Appellant's counsel was conducting cross-examination of Laura MacPherson, a teller for First N.H. who had witnessed the bank robbery. MacPherson testified that while she was being questioned by police at the scene of the crime, an officer was taking notes based on what she was saying. Appellant's counsel then called for a sidebar requesting that the Government turn over these notes pursuant to the Jencks Act: -13- Court: It isn't [Jencks] unless she's seen it and adopted it. Counsel: But if 18 3500 controls [18 U.S.C. 3500], as I read it, a statement that is taken down by anybody, she doesn't have to adopt it. If it's a written statement taken down by a person dealing with the subject matter in question, I'm entitled to it. And I refer to 18 3500(e)(2). Government: As I understand the application of the cited rule under Jencks, what counsel is referring to under (e)(2) is a mechanical recording or a transcription of a recording of some kind, either stenographic, mechanical, electrical, or other recording or transcription of that recording; that is, a transcript. There is no such material as the statement is defined under Jencks as I read the statute in that rule. Court: That was my understanding of the interpretation of the statute, sir, and there are none of those stenographic recordings [or] transcriptions. Tr. (October 8, 1992) at 118, 121-22. While the Government attorney mentioned "other recording," it is clear from a reading of the entire interchange that the court and Government attorney disagreed with counsel's argument that subsection (e)(2) of the Jencks Act encompasses oral statements made by witnesses that are written down by government agents as they are taking notes on the conversation, so long as such statements are substantially verbatim accounts. Further, the trial record is replete with statements by the court indicating that it viewed subsections (e)(1) and (e)(2) as limited to statements that are either adopted by a witness or -14- recorded through stenographic or some kind of mechanical means.5 This legal basis, cited as the ground for many of the court's Jencks Act rulings, is erroneous. Since 1959, the United States Supreme Court has held that the phrase "other recording" in subsection (e)(2) "was meant to encompass more than mere automatic reproductions of oral statements." Palermo v. United _________________ States, 360 U.S. 343, 352 (1959); 18 U.S.C. 3500(e)(2). ______ Following the Supreme Court's lead, this Court has stated that "[a] longhand writing which the court found fairly followed the witness' words, subject to minor, inconsequential errors" would fall within (e)(2). Campbell v. United States, 296 F.2d 527, 532 _________________________ (1st Cir. 1961), on remand, 199 F. Supp. 905 (D. Mass. 1961), and __ ______ ___ supplemental op., 303 F.2d 747 (1st Cir. 1962), vacated on other ____________ ___ _______ __ _____ grounds, 373 U.S. 487 (1963)(Campbell II); see also Campbell v. _______ ___ ____ ____________ United States, 365 U.S. 85 (1961)(Campbell I)(finding that typed _____________ interview report prepared by FBI agent based on notes taken during a pretrial meeting with a government witness may qualify as Jencks Act statements under subsection (e)(1), if it was adopted by the witness, or subsection (e)(2), if the report closely followed notes that included verbatim statements); United ______ States v. Harris, 543 F.2d 1247, 1250 (9th ______________________ Cir. 1976)("handwritten or rough interview notes taken by a government agent during a criminal investigation" may contain ____________________ 5 See Appendix I for examples of various Jencks Act rulings by ___ the court that were, or could possibly have been, based on an erroneous legal ground. The examples in this Appendix are not meant to be exhaustive but only to point out on remand the more obvious rulings that were arguably based on legal error. -15- substantially verbatim recitals of witness statements producible under the Jencks Act). The Supreme Court has indicated, however, that Congress intended to limit subsection (e)(2) to: only those statements which could properly be called the witness' own words . . . . It [is] important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent.6 Id. at 352-53. ___ ____________________ 6 The remaining portion of this quotation in Palermo is worth _______ citing here to provide the court below with guidance, on remand, in determining whether the disputed statements fall under subsection (e)(2) of the Act: Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder's opinions or impressions. It is clear from the continuous congressional emphasis on 'substantially verbatim recital,' and 'continuous, narrative statements, made by the witness recorded verbatim, or nearly so . . .' that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions. Palermo, 360 U.S. at 352-53. _______ -16- In United States v. Newton, 891 F.2d 944, 953-54 (1st ________________________ Cir. 1989), this Court rejected an argument that the district court erred by not conducting an inquiry into whether disputed notes were "substantially verbatim" statements by the witness pursuant to 18 U.S.C. 3500(e)(2). We rejected the argument on two grounds: first because Appellant failed to make a motion on the basis of that subsection to the court below and, second, there was no testimony in the record to indicate that "the agent [had been] recording the exact words of the witness." Id. at ___ 954. In this case, however, Appellant's counsel elicited from a number of witnesses that agents had been taking notes as the witnesses were making statements; at sidebars, counsel specifically cited (e)(2) as the basis for his Jencks Act motions; and he registered, on the record, his disagreement with the court's and the Government's interpretation of the statute. Appellant clearly raised this issue to the court below and on appeal. After examining the record, we find that the district judge likely ruled against a number of Appellant's Jencks Act requests on an erroneous legal ground.7 Rather than ____________________ 7 In all honesty, this Court has not always been as clear as it should have been in pointing out the distinctions between 18 U.S.C. 3500 (e)(1) and (e)(2). In United States v. Sep lveda, __________________________ 15 F.3d 1161, 1179 (1st Cir. 1993), this Court indicated that to be discoverable under the Jencks Act, a statement must be "substantially a verbatim account" and "signed or otherwise ___ verified by the witness himself." The statements in question satisfied neither requirement. It is clear from a reading of the authorities cited in Sep lveda, however, that this Court _________ interprets the Jencks Act as requiring either a showing that the ______ statement is a substantially verbatim account or that it was __ adopted by the witness. See, e.g., United States v. Newton, 891 ___ ____ _______________________ F.2d 944, 953-54 (1st Cir. 1989)(concerning statement that -17- vacate the court's Jencks Act rulings, we choose to remand the case for the limited purpose of the taking of additional evidence while retaining appellate jurisdiction in the interim. We have previously noted the usefulness of such a limited remand, see ___ United States v. Levy, 897 F.2d 596, 599 (1st Cir. 1990) _______________________ (endorsing limited remand for purposes of clarification where ambiguities lurk in the sentencing record), and have employed the practice in several cases. See, e.g., U.S. v. Qui ones, No. 93- ___ ____ ________________ 1601, slip op. at 16-17 (1st Cir. May 20, 1994)(remanding for evidentiary hearing to determine whether sentencing departure was warranted while retaining appellate jurisdiction); United States _____________ v. Parra-Iba ez, 936 F.2d 588, 598 (1st Cir. 1991)(remanding for _______________ evidentiary hearing to determine whether error during Rule 11 colloquy was harmless while retaining appellate jurisdiction), remanded, 951 F.2d 21 (1st Cir. 1991). ________ On remand, the district court should hold an evidentiary hearing and report its findings back to us within ninety (90) days. The hearing should be limited to determining whether Appellant Flynn's motions for production, which were denied on the basis of the erroneous legal ground identified in this opinion, should have been granted, and documents produced, under the Jencks Act. We intimate no view on whether disclosure of any of these materials was required. The district court ____________________ arguably fell under 18 U.S.C. 3500(e)(2)); United States v. _________________ Gonz lez-S nchez, 825 F.2d 572, 586-87 (1st Cir.), cert. denied, ________________ _____ ______ Latorre v. United States, 484 U.S. 989 (1987)(concerning ____________________________ statement that arguably fell under 18 U.S.C. 3500(e)(1)). -18- should conduct this hearing, applying the legal standards articulated in this opinion and limited to examining whether the disputed materials contain substantially verbatim recitals of witness statements as defined under subsection (e)(2). If the court determines that the materials in question do not contain producible statements or that the nondisclosure of certain statements, while legal error, was harmless, it should supplement the record by setting forth its findings and explaining why a new trial is not required. If, on the other hand, the court concludes that the Government should have been required to deliver certain materials, or portions of materials, pursuant to subsection (e)(2), and that the error of nondisclosure was not harmless, it should vacate the judgment of conviction and grant Appellant Flynn a new trial. II. THE COURT'S ORDER OF $266,500 II. THE COURT'S ORDER OF $266,500 ___________________________________ IN RESTITUTION AGAINST APPELLANT NEAL IN RESTITUTION AGAINST APPELLANT NEAL _____________________________________ Appellant Neal alone challenges the court's restitution order of $266,5008 to First N.H. pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. 3663, 3664. He argues that the district court erred, as a matter of law, by ordering him to pay full restitution of First N.H.'s losses from the robbery when those losses were not fully attributable to his offenses of being an accessory after the fact and money laundering. We review this claim of legal error de novo. See __ ____ ___ United States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993). _______________________ ____________________ 8 Appellants Flynn and Kenney were also ordered to pay restitution to First N.H. in the amount of $266,500. -19- In cases where a defendant has been convicted of specific federal offenses, section 3663 of the VWPA authorizes a sentencing court to order, "in addition to or . . . in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense." 18 U.S.C. 3663(a). The following section, 18 U.S.C. 3664(a), directs the court to consider a number of factors, including loss sustained by the victim as a result of the offense, in determining the amount of restitution to be ordered against a defendant.9 In Hughey v. __________ United States, 495 U.S. 411, 413 (1990), the United States ______________ Supreme Court interpreted these provisions as setting a maximum limit whereby restitutionary awards under the VWPA are not to exceed "the loss caused by the specific conduct that is the basis ______________________________ of the offense of conviction." In objecting to the restitutionary award in proceedings below, Neal argued that he was compensated no more than $5000 by the armed robbers for assisting them in evading law enforcement officials and laundered about $14,000 of the robbery proceeds by purchasing a getaway vehicle that was later confiscated by the Government. In an order dated February 22, 1993, the district ____________________ 9 18 U.S.C. 3664(a) directs the court to consider the following factors: . . . the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate. -20- court summarily dismissed Neal's argument that he should not be required to make restitution in an amount greater than the proceeds that he personally obtained from the robbery. Order (Docket No. 302) at 3-4. While the court was correct in its view that the VWPA does not require restitutionary awards to be limited to the amount obtained by the defendant, the record gives no indication of whether the court calculated, pursuant to Hughey, the portion of First N.H.'s losses that were actually ______ ______________ caused by the specific criminal conduct forming the basis for _________________________________________________________________ Neal's convictions. __________________ The VWPA, itself, does not require the court to make explicit findings to justify restitutionary awards. This Court has held "that a district judge need not make open-court findings on the statutory factors when issuing a restitution order so long as the record on appeal reveals that the judge made implicit findings or otherwise adequately evinced his consideration of those factors." Savoie, 985 F.2d at 618. The record here ______ indicates that the court ordered the same restitutionary amounts of $266,500 against Appellants Neal, Kenney, and Flynn. The record also indicates that in connection with the bank robbery, Kenney and Flynn were convicted of conspiracy to rob First N.H., conspiracy and interference with commerce by threats or violence in violation of the Hobbs Act, and the use of firearms during crimes of violence. Kenney was also convicted for possession of a firearm by a convicted felon in committing the bank robbery, and Flynn was convicted of money laundering. In comparison with -21- Flynn and Kenney, Neal was convicted of being an accessory after the fact and money laundering. Given these factors indicating the disparate nature of Neal's criminal conduct, there is not an adequate basis in the record to determine whether the district judge found that the full amount of losses suffered by First N.H. ________________________________________________ was "caused by the specific conduct that [was] the basis of" Neal's convictions. Hughey, 495 U.S. at 413. ______ Such a determination was required in this case even though Congress amended certain provisions of the VWPA soon after the Hughey decision as part of the Crime Control Act of 1990. ______ See Pub. L. No. 101-647, 2509, 104 Stat. 4789, 4863 (1990). ___ One of the amended subsections, codified at 18 U.S.C. section 3663(a)(2), expanded the definition of "victim" for purposes of restitution, providing in pertinent part that: a victim of an offense that involves as __ an element a scheme, a conspiracy, or a __________ pattern of criminal activity means any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern. 18 U.S.C. section 3663(a)(2)(emphasis added). This broadening of the definition of "victim" appears to apply to cases involving mail fraud, racketeering, or other federal crimes that require proof of a scheme, conspiracy, or pattern of criminal conduct. This Court faced such a case in U.S. v. Cronin, 990 F.2d 663 (1st ______________ Cir. 1993) and decided that where defendants had committed various mail fraud offenses prior to enactment of section _____ __ 3663(a)(2), restitution should be limited to the amounts alleged in the specific counts on which each defendant was found guilty -22- and not awarded for the full amount of losses stemming from the mail fraud scheme of which each defendant was a part. While the bank robbery alleged in the indictment in this case occurred subsequent to the VWPA amendments, section __________ __ 3663(a)(2) does not appear to support the restitutionary award entered against Appellant Neal. Neal was convicted of money laundering and of being an accessory after the fact. Neither of these offenses involves proof of a scheme, conspiracy or pattern of criminal activity as an element. See 18 U.S.C. section 1956 ___ (laundering of monetary instruments) and 18 U.S.C. section 3 (accessory after the fact). Accordingly, we remand the case with instructions that the court hold a hearing to determine whether the full amount of damages suffered by First N.H. are attributable to the conduct underlying Appellant's convictions.10 We leave the dimensions of the hearing, as well as the necessity vel non for taking ___ ___ additional evidence, in the sound discretion of the district court. Similar to the limited remand that we ordered with respect to Appellant Flynn's Jencks Act challenge, see pp. 16-17 ___ ____________________ 10 We do not mean to suggest that on remand there is no possible basis for holding Neal accountable for the full amount of losses suffered by First N.H. We are only suggesting that the record, as it stands, does not indicate whether, and upon what evidentiary basis, the trial judge determined that the full amount of losses are attributable to Neal's criminal conduct. If on remand, for example, evidence is presented indicating that Neal played a significant role in helping the other defendants escape and that but for his actions, there was a substantial likelihood that the full proceeds would have been recovered, the court could well be within its statutory authority in imposing the full $266,500 in restitution. -23- supra, we will retain appellate jurisdiction and order the court _____ to report its findings to us within ninety (90) days. If the court determines that the full amount of First N.H.'s damages were caused by Appellant's criminal conduct, it should supplement the record with these findings. If the court concludes that the full restitutionary award is not supported by facts presented at the evidentiary hearing, it should vacate the award and enter a new restitutionary order based upon a determination of that amount of damages suffered by First N.H. which is attributable to the conduct underlying Appellant's convictions. III. JOINT CHALLENGES III. JOINT CHALLENGES ______________________ A. The Court's Failure to Define Reasonable Doubt A. The Court's Failure to Define Reasonable Doubt __________________________________________________ Appellants Flynn, Kenney, and Neal argue that the court's jury instructions, which failed to define the term "reasonable doubt" and used the phrase "by medium of admissible evidence,"11 violated their due-process rights to a fair trial and undermined confidence that their convictions rested upon proof comporting with the constitutional minimum. This Court has clearly held that "an instruction which ____________________ 11 The district court judge used this phrase in the following context: The law in the United States of America presumes each defendant to be innocent of crime, and this presumption of innocence can be overcome only when the government, by medium of admissible evidence, ________________________________________ satisfies its burden of convincing the jurors beyond a reasonable doubt of the guilt of each defendant as to every element of the offense with which that defendant has been charged. -24- uses the words reasonable doubt without further definition adequately apprises the jury of the proper burden of proof," so long as the phrase is not buried as an aside. United States v. ________________ Olmstead, 832 F.2d 642, 646 (1st Cir. 1987), cert. denied, 486 ________ _____ ______ U.S. 1009 (1988). This Court is satisfied that the instructions rendered in this case fully satisfy constitutional requirements and comply with Olmstead.12 The judge reiterated the ________ ____________________ 12 In addition to the instructions listed in n.11, supra, the _____ court further instructed the jury as follows: Moreover, the law never imposes upon a defendant the burden or duty of testifying or producing any evidence, so a reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. The government must prove beyond a reasonable doubt as to each defendant every essential element of the offense with which that defendant is charged. Each defendant has the right to rely upon the failure of the prosecution to establish such proof, and each defendant may also rely upon evidence brought out on cross-examination of witnesses presented by the prosecution. The court then concluded its instructions as follows: To sum up then, you should treat each charge made with respect to each defendant separately and give to each of such charges the same careful and thorough consideration you would wish to have given to each of you were you charged with the offenses set forth in this indictment. As I have indicated to you, the burden in each instance which is placed upon the government is to prove each element of the offenses with which each defendant is charged beyond a reasonable doubt, and in the event the government fails to sustain its burden of proof beyond a reasonable doubt as to any essential element of any offense charged -25- government's burden of proof a number of times; explained that the government must satisfy this burden with respect to each element of the offense with which each defendant is charged; and told the jurors to consider the evidence separately and impartially against each defendant. See n.12, supra. When read ___ _____ in context, the phrase "by medium of admissible evidence" would be interpreted by a reasonable juror to mean that the government must satisfy its burden of proof through admissible evidence.13 _______ ____________________ against each defendant, it has failed in its burden of proof as to each defendant and that defendant is to be acquitted. . . . So, if any reasonable doubt remains in your minds as to the guilt of any defendant after impartial consideration of all of the evidence with respect to such defendant, it is your duty to find that defendant not guilty. |