United States v. Chapdelaine, 1st Cir. (1993)
United States v. Chapdelaine, 1st Cir. (1993)
United States v. Chapdelaine, 1st Cir. (1993)
Court issued
of first
on
March 25,
1993, is
"
1"
Before
Selya, Cyr and Boudin, Circuit Judges.
______________
____________________
Louis F. Robbio with whom Robbio & Nottie, Ltd. was on brief
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_____________________
appellant.
Margaret E. Curran, Assistant United States Attorney, with w
___________________
Lincoln C. Almond, United States Attorney, and James H. Leav
___________________
_______________
Assistant United States Attorney, were on brief for appellee.
____________________
March 25, 1993
____________________
BOUDIN,
Circuit Judge.
______________
George
Chapdelaine
appeals
at
the
of a
Emerald
Mall
in
by himself
North
and
Attleboro,
Massachusetts.
the location
The
Anthony Fiore
Whalen in
THE EVENTS
to
a meeting
Fiore, and
with
Mahan
lot.
The
a Wagoneer jeep
Wagoneer
was
Chapdelaine and
Edward Mahan
and
drove Mahan's
Walpole, Massachusetts.1
Chapdelaine,
We affirm.
March 4,
vehicle to
to
taken
George
garage
from the
in
Walpole,
(accompanied
Fiore
by
Chapdelaine
in another
car)
later lodged
a stolen
Jaguar in
to
it was
a different
at
Square
Mall
arrived in separate
in North
Attleboro,
____________________
1Several law enforcement officers who participated in
surveillance of the four men testified at trial to the
group's activities.
-2-2-
Massachusetts.
the two
later,
this
before leaving.
parked
A few hours
bank located in
truck as it arrived at
The following day, March
remained in
their car
as the
same Wells
department store.
When the
Fargo truck
arrived to serve
street to
the
a
nearby
closer
to the bank.
After the
before going
waited in their
lot
to the Emerald
before
Rhode Island, to
now
in Fiore's
and
the stolen
bearing yet
another
-3-3-
registration
Later
all
plate,
four
Chapdelaine
and drove
men met
opened the
at
it
the
trunk
to
the Cumberland
Cumberland
of his
car,
lot.
lot.
There,
put on
gloves,
a green
Wagoneer.
The
laundry
bag which
was
then placed
in
the
group
then drove
the
stolen vehicles
and
As the men
were passed by
the
time at the
mall was 2
into
and
a parking
then
garage,
drove
back
remained
to
the
and
there for
staging
few
area
in
Cumberland.
In Cumberland,
all four
were arrested.
The Wagoneer,
turned
Plymouth) which
up the
green laundry
was found
bag (now
to contain firearms
in Fiore's
(including a
the
vehicles
clothing, a
radio
included
gloves,
guidebook.
Later
that
several
and a
pieces
police scanner
day,
in
search
of
and
of
-4-4-
trial.2
a
guilty
government's case.
under 18
U.S.C.
shortly
before
with Chapdelaine,
the
close of
the
of conspiracy
commit
four
violations,
other,
18
related
U.S.C.
offenses;
1951;
of
of
two
attempting
federally insured
bank, 18
U.S.C.
carrying firearms
during a
crime of
violence, 18
of transporting
a stolen
vehicle in
924(c)(1);
commerce,
18 U.S.C.
2312; and
offenses, 18 U.S.C.
922.
in a
2113(a);
of four
to
Act
rob
of using
a
and
U.S.C.
interstate
firearms-related
superseding indictment
but one,
Hobbs
Chapdelaine
was
used at
sentenced
trial.
to
On all
concurrent
924(c).
sentence
____________________
2Fiore's appeal from his sentence has been previously
decided. United States v. Fiore, 983 F.2d 1 (1st Cir. 1992).
_____________
_____
-5-5-
-6-
-6-
II.
THE TRIAL
Publicity
and Jury Prejudice.
________________________________
contends
that
informal
motion
the
district
for
court
change
of
Chapdelaine
erred
in
denying
his
venue
on
grounds
of
As evidence of
coverage, Chapdelaine
articles in
points to
inflammatory.
the content
first
prejudicial
the Providence
__________
of the television
that the
no basis for
of Fiore
and Mahan.3
had
been
empaneled
On
the day
two months
about it.
the
trial began,
Only four of
to
determine
approached or read
the panel, two of
whom
ultimately
each had
Journal
_______
been
deliberated, answered
exposed to
article indicating
in
the affirmative;
November 20,
that two
1991
of the
Providence
__________
defendants had
panel members
____________________
3One of the articles mentions
Chapdelaine's prior
conviction for cocaine trafficking and an informant's claim
that Chapdelaine and Fiore had earlier tried to rob another
armored car. There is no indication that any juror saw this
article or knew these supposed facts.
-7-7-
affirmed that
Neither Chapdelaine
is no
basis
on this
F.2d
record
for any
publicity."
725,
734 (1st
claim
of
United States
______________
Cir.),
cert.
_____
by co-defendants is information so
the trial
of deep and
the knowledge
jurors to
be
U.S. 717,
inherent
is plain
v. Dowd, 366
____
the court to
override the
that
co-defendant has
pled.
Cir. 1942).
some
enforcement
even less
of
or
the
basis
seated
were
for Chapdelaine's
jurors
familiar
had
with
complaint
relatives
some
of
the
in
law
trial
-8-8-
As for
ineffective in failing
to
and must
await a
collateral attack,
on direct
if Chapdelaine
of the
prompted a
jury) and
motion for
the trial.
withdrew from
Chapdelaine's position
This
which the
then, renewed
Whalen's absence
that
that
Chapdelaine, as
an
alleged
co-conspirator,
must
be
guilty as well.
We addressed this
Ramirez, 823
_______
v. Del Carmen
__________
this
approach,
"clearly
and carefully
evidence
against
determine guilt or
stating
instruct
that
the
the jury
court
should
to consider
particular individual,
alone,
Id.
__
We
the
and
to
at 3.
In
__________________
Members of the Jury, you'll note that
Mr. Whalen is no longer
sitting at
counsel table and he is no longer a party
to this action. You are not, I repeat,
-9-9-
no such request
and the
failure to do
At trial,
so was
not
plain error.
Sufficiency of the Evidence.
____________________________
that
the
evidence
at
trial
was
Chapdelaine
insufficient
next claims
to
prove
conspiracy,
attempted
robbery,
various
firearms-related
stolen vehicle.
In
inferences
assessing
these
claims,
credibility judgments
to
the verdict;
could
doubt.
and the
have found
reasonable
issue is
the defendant
United States
_____________
and
whether a
rational jury
guilty beyond
v. Batista-Polanco,
_______________
a reasonable
927 F.2d
14, 17
conspiracy,
Chapdelaine says
that
the
This is
-10-10-
of this
opinion, a
detail,
could
easily
persuade
further incriminating
reasonable
jury
that
frustrated only by
an accidental
F.2d 1292 (9th Cir. 1987), where the Ninth Circuit found
same
evidence supported
States
______
act
987 (2d.
towards its
than mere
commission,"
1446, 1459
the actual
United
______
(1st Cir.
1992),
than the
commission
of
Cir. 1980),
Chapdelaine argues
substantive offense
before
crime."
than mere
to commit the
976 F.2d
necessary
substantive
more
step
v. Figueroa,
________
comprising "more
last
an intent
a "substantial
Chapdelaine's conviction
cert. denied,
____________
that the
449
U.S. 1112
the defendants
978,
(1981).
preparation because
the
to no
did not
In Del
___
before the
substantial step
was to
toward robbery.
-11-11-
823
arrive" constituted
F.2d at 2.
See also
________
Cir.) (same
S.Ct.
result under
358 (1992).
1312 (8th
to
the firearms-related
of violence,
offenses, Chapdelaine
possession
of
firearms and
to a
ammunition
an obliterated serial
number.
In
addition to
the guns and ammunition recovered from the green laundry bag,
police
also
seized
Chapdelaine's bedroom
five
rounds
closet.
of
ammunition
from
that the
evidence
did not
show
that he
First, he
"knowingly"
possessed the guns found in the laundry bag because there was
no
proof
Chapdelaine
tire
that
he
looked
testified that
from Fiore's
inside
the
he thought
Noting
Plymouth instead
bag.
the bag
At
trial,
contained a
of the
Wagoneer, Chapdelaine
____________________
4In a related argument, Chapdelaine contends that the
jury instruction on what
is "a substantial step" was
inadequate. The objection was not raised at trial and we are
not told what was wrong with the instruction other than that
"a more complex and detailed instruction was required." We
therefore consider the claim waived.
See United States v.
___ _____________
Zannino, 895 F.2d 1, 17 (1st Cir.) (issued raised in a
_______
perfunctory manner are deemed waived), cert. denied, 494 U.S.
____________
1082 (1990).
-12-12-
argues
that,
that the
evidence
did not
exclude the
possibility
In this case,
Wagoneer to
involving a carefully
planned
reasonably infer that the bag's contents when seized were the
same as when
and
See
___
evidence failed to
of
found in
the
possession of the
his
laundry
closet, Chapdelaine
within
bag.
established
As for
emphasizes that
the bullets
the owners
throughout
the home.
in the
and control."
Further,
his
in
of the
who testified
However,
his "dominion
those found
adequately
Chapdelaine's
storing ammunition
bullets retrieved
bag
weapons within.5
the
in an area
they matched
from the
laundry
____________________
5As for the question of the guns' use in relation to the
crime, the jury could readily have concluded that, by
transferring the guns to the Wagoneer before setting off for
the mall with the others, Chapdelaine "intended to have [the
weapons] available for possible use during or immediately
following" a robbery. United States v. Payero, 888 F.2d 928,
_____________
______
929 (1st Cir. 1989).
-13-13-
___
_____________
______
comment.
last
He
attack
says that
on
a
the
evidence
requires
rational jury
could not
as he
testified at trial,
otherwise contest
included
(in
evidence that
car thieves
But of
that
proof.
summarized
Chapdelaine possessed
not
the government's
addition to
he did
does
That proof
at the
outset)
tools commonly
used by
admission that he
used a
The count at
issue
caliber
Chapdelaine
pistol
seized
from
the
green
laundry
bag.
Probably
-14-14-
the attention
counsel, and
as if Chapdelaine
At trial,
all of
in the
that he
knowingly transported it
district
prosecutor,
and it was
of the
the government
across state
lines.
The
a redacted indictment
given to
the
In preparing
not cited
this issue.6
The
to any precedent
important
Chapdelaine's possession
"intent"
evidence on
possession was
that
of
fact conveyed
the weapon,
several other
charged as an
to
the
jury,
was admissible
counts, whether
offense.
directly addressing
The
as
or not
stipulated fact
this point
was very
faint, as
multiple weapons,
____________________
6The closest in point is Chow Bing Kew v. United States,
_____________
_____________
248 F.2d 466 (9th Cir.), cert. denied, 355 U.S. 889 (1957).
_____ ______
The Ninth Circuit there dismissed a conviction on a count in
which the defendant was not named while leaving intact a
conviction on another charge.
The question of whether the
former conviction invalidated the latter was apparently not
raised.
-15-15-
two
stolen
planning.
cars, an
The
obliterated
serial
number and
ample
the evidence
on two
counts relating
to the
stolen Jaguar--
final
SENTENCE
challenge
is
to
sentencing
calculations.7
First, as to the
transportation
of
Wagoneer,
the
stolen
he
objects
to
a two-level
than minimal
planning.
report,
by Chapdelaine.
counts relating to
in the pre-sentence
counts
the district
and set
basis of the
or not
guidelines,
Whether
court
Chapdelaine's
his sentence
Pursuant to the
disregarded the
offense level
stolen car
solely on
U.S.S.G.
the
3D1.4(c).
____________________
7Although the 1991 Sentencing Guidelines were in effect
at the time of Chapdelaine's sentencing, the district court
applied the 1990 guidelines in effect at the time of the
offenses, a result more favorable to Chapdelaine. See United
___ ______
States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).
______
__________
All references in this opinion are to the 1990 guidelines.
-16-16-
range
Next, Chapdelaine
robbery
level
counts.
increase
complains of the
computation on
the
$1,500,000. U.S.S.G.
losses
ranging
2B3.1(b)(6).
from
$800,000
to
At
the
on the day
contends that
the
loss in
this case
application
of
certainty
can
However,
would be considered."
note 2.
"reasonable
value of the
The
certainty"
be
U.S.S.G.
requirement in
"goes
determined
was
to
to
section
what
with
be
the
____________________
8U.S.S.G.
2B3.1, application note 3, cross-references
section 2B1.1 for "valuation of loss" in robbery offenses.
Section 2B1.1, application note 2, refers the judge to
section 2X1.1 in cases of "partially completed conduct."
Section 2X1.1 sets the base offense level as that fixed for
the object offense (in this case, robbery), "plus any
adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty."
U.S.S.G
2X1.1(a).
-17-17-
conspirator's intent."
United States v.
_____________
Chapdelaine
invokes
section 2X1.1(b),
which
the
offense
unless
______
the
complete"
the
level
defendant
for
or
an
attempt
conspirators
were
some
similar
it found
because the
beyond
U.S.S.G.
the robbery
truck arrived
the
government
"about
to
[the
defendant's
or
2X1.1(b)(1), (2).
The
that
. . .
conspiracy
event
conspirators'] control."
or
naturally
the reduction
was frustrated
earlier than
"simply
usual."
On
us
to
uphold
the
district court.
We affirm
the district
on the
of the
error
Chapdelaine
apprehension
the
in
the
was
"about
district
to
complete" a
or interruption
defendant's
control."
court's
by
conclusion
robbery
some similar
U.S.S.G.
there was no
that
"but
for
event beyond
2X1.1(b)(1).
See
___
-18-18-
United States v.
______________
Johnson,
_______
962 F.2d
at 1313-14
(upholding
to
excludes
offenses that
like
our
an
argues
that
interruption
"similar"
the guideline
reflects
by
to
in
section
apprehension
fortuitous events
reference
are prevented
the
truck.
policy decision
In
that
was nearly
withdraw.
The Sentencing
Commission
that
near
accomplishment of
enough risk
the criminal
object
normally poses
offense.
achievement--not
interruption--that
It
the
is
nearness
precise
defeats
nature
the
of
of
reduction
the
the
crime
to
involuntary
available
for
-19-19-