U.S. v. Bennett, s. 94-2260

• Decision Date: 14 September 1995
• Docket Number: Nos. 94-2260,94-2300,s. 94-2260
• Citation: 75 F.3d 40
• Parties: UNITED STATES of America, Appellee, v. George H. BENNETT, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lionel LUSSIER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 40

75 F.3d 40

UNITED STATES of America, Appellee, v. George H. BENNETT, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Lionel LUSSIER, Defendant, Appellant.

Nos. 94-2260, 94-2300.

United States Court of Appeals First Circuit.

Heard Sept. 14, 1995.

Decided Feb. 1, 1996.

Malcolm J. Barach, Boston, MA, for appellant Bennett.

William Maselli, Auburn, ME, for appellant Lussier.

F. Mark Terison, Assistant United States Attorney, with whom Jay P. McCloskey United States Attorney, was on consolidated brief for the United States.

Before SELYA and BOUDIN, Circuit Judges, and SARIS, ^* District Judge.

BOUDIN, Circuit Judge.

George H. Bennett and Lionel Lussier were each charged with conspiracy to possess marijuana with intent to distribute, 21 U.S.C. § 846; carrying or using a firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1); and unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). The charges stemmed from a bizarre March 1994 episode in which Bennett, Lussier, and Gary King, in an attempt to avenge a previous drug-related attack and robbery against mutual friend Ronald Madore, mistakenly entered the wrong home and assaulted the occupants, ultimately shooting one of them through the finger.

Madore and King were indicted for various offenses; both pled guilty, cooperated with the prosecution, and testified against Bennett and Lussier. After a five-day jury trial in August 1994, Bennett and Lussier were convicted on all counts and sentenced, respectively, to 360 and 378 months in prison. In this consolidated appeal, Bennett and Lussier challenge their convictions and sentences on many grounds. We address the more colorable of these claims, setting forth pertinent facts as necessary.

First. Both Bennett and Lussier challenge the sufficiency of the evidence supporting conviction on each count. Neither denies participating in the assault but they dispute issues of intent and their precise role in the events. Our familiar task on review of sufficiency is to consider the record as a whole and to determine, viewing the evidence in the light most favorable to the verdict, whether a rational jury could find guilt beyond a reasonable doubt. United States v. Luciano-Mosquera, 63 F.3d 1142, 1149 (1st Cir.1995).

A conspiracy conviction can be supported by either direct or circumstantial evidence of an illegal agreement--in this case to possess marijuana with intent to distribute. See United States v. Ruiz, 905 F.2d 499, 506 (1st Cir.1990). At trial, there was testimony that on the day of the mistaken raid, Bennett, Lussier, and King, along with two other friends, drank and discussed seeking revenge for a previous attack in which mutual friend Ronald Madore, a small-time marijuana dealer, was beaten and robbed of marijuana, money, and guns. The group continued their drinking and their discussion that evening at Madore's house.

Madore testified that Bennett, Lussier, and King planned to beat up the man Madore suspected was behind the previous attack, one Wayne Hathorne, take any marijuana he had (along with any money) and give the marijuana to Madore so he could sell it and share the proceeds. King's testimony regarding the plan was less definitive; he stated at one point that they only intended to beat Hathorne, but elsewhere that both discussed stealing Hathorne's marijuana and giving it to Madore because "[h]e deals in it."

It is undisputed that shortly after this conversation the four men--the appellants, Madore and King--left Madore's house in Bennett's car and drove to a trailer home, which they mistakenly believed was Hathorne's. While Madore waited in the car, Bennett, Lussier and King entered the trailer and terrorized occupants David Wing, Michelle Morin and their children, physically assaulting Wing and Morin while a gun was held to Wing's head. There was testimony, described later in this opinion, that all four men knew of the proposal to bring a gun and that first King and then Lussier carried the weapon.

Wing testified that during the attack all three men were shouting "[w]here is our dope?"; Morin heard them shouting about drugs but did not specify whether it was particular individuals or all of them. Wing and Morin, who had no drugs, tried to convince their assailants they had the wrong house. These pleas were met with a threat to kill Wing. In an ensuing struggle for the gun Wing was shot through the finger. Bennett Lussier and King immediately fled the scene without taking anything.

Appellants now insist, as they argued to the jury, that the plan was merely to beat Hathorne and did not include seizing drugs, and that much of the testimony of Madore and King was false. But such credibility assessments are for the jury and nothing here justifies disturbing the jury's rational conclusion that Bennett and Lussier joined in a plan to, among other things, steal marijuana and give it to Madore to sell.

As to the section 924(c)(1) charge of carrying or using a gun during a drug crime, Lussier concedes the sufficiency of the evidence against him, while Bennett maintains that nothing showed that he had carried or used a gun in relation to the marijuana conspiracy. But Bennett was also charged with aiding and abetting the carry or use offense. Thus, his conviction can be sustained under 18 U.S.C. § 2 if Bennett knew a firearm would be carried or used by a co-conspirator in the drug trafficking offense and willingly took some action to facilitate the carriage or use. Luciano-Mosquera, 63 F.3d at 1150.

At trial there was testimony that the gun used in the attack was taken from a couch in Madore's house under circumstances where Bennett could have seen it. Madore testified that he told the other three they did not need a gun, but each said he would rather take it. King held the gun on the ride to Wing's home while sitting in the passenger seat beside driver Bennett; King said that he did not conceal the gun in the car, although he conceded he may at some point have placed it in his waistband. It was his impression the others were aware he had the gun.

From this evidence a jury could find that Bennett knew that one of his companions was carrying the gun when they committed the attack, and facilitation is essentially undisputed since Bennett provided his car to transport himself, his co-conspirators, and the gun to execute the raid. In Luciano Mosquera, we upheld an abetting conviction because the defendant provided a house for meeting where guns were displayed and discussed, and later used during drug trafficking crime. 63 F.3d at 1150. In sum, once knowledge on the part of the aider and abettor is established, it does not take much to satisfy the facilitation element.

With respect to adequacy of evidence on the felon-in-possession charge, 18 U.S.C. § 922(g)(1), Bennett and Lussier make only the narrow claim that the evidence failed to establish that the gun had travelled in interstate commerce, the jurisdictional element of that offense. The gun was not introduced into evidence since it had been discarded by King and Madore. But from direct testimony the jury was entitled to find that it was a .22 caliber "Single-Six" made by Sturm Ruger and that Sturm Ruger was an out-of-state manufacturer.

Appellants argue that the gun could have been a replica fashioned by an in-state gunsmith. This remote possibility had only the most tenuous evidentiary support, namely, a witness or two said such a gun could be fabricated but at significant cost. The overwhelming probability was that the gun was authentic and had been transported--at some time--in interstate commerce. Certainly the jury's conclusion that the gun was genuine and had previously traveled in commerce was not irrational. Cf. United States v. Kirvan, 997 F.2d 963, 966-67 (1st Cir.1993).

Second. Shortly into its deliberations, the jury requested the testimony of victims Wing and Morin. The trial judge conferred with counsel and then instructed the jury to use their recollections, adding that he would provide the requested testimony if the jury still found it necessary. After further deliberations the jury asked for only the direct testimony of Wing and Morin. Over defense objections, the judge then had the direct testimony of Wing and Morin read back to the jury. Immediately after the read-back, the judge asked jurors as a group whether they would also like to hear the cross or other testimony of the two witnesses; none did. Defense counsel moved for a mistrial, which was denied.

The appellants concede that it would have been within the trial judge's discretion to have read to the jury all of Wing and Morin's testimony; but they say that providing only the direct examination was prejudicial--indeed, unconstitutional--because the unread cross-examination responses of both witnesses were at "striking variance" with their testimony on direct. No examples of such variances are mentioned. No case law is provided to suggest that the jury may not select what it wishes to hear.

The trial judge's decision whether or not to grant a request to read back testimony requested by a jury is reviewed for abuse of discretion, United States v. Akitoye, 923 F.2d 221, 226 (1st Cir.1991); and we think that this is equally true of the judge's decision whether the jury should be made to hear additional, related testimony that the jury made clear it did not need to rehear. Of course, such discretion is not unlimited. And certainly the trial judge should exercise great care when the testimony the defense counsel wants the jury to hear is the cross-examination of the very witnesses whose full direct testimony has just been reread.

But no inflexible rule exists that the cross must always be read. United States v. Wright-Barker, 784 F.2d 161, 174 (3d Cir.1986). In plenty of cases, the direct testimony of another witness might be far more relevant in assessing the testimony of the witness whose...