USCA1 Opinion

October 4, 1996

[NOT FOR PUBLICATION]

____________________

No. 96-1369

UNITED STATES,

Appellee,

v.

ROBERT R. GIRARD,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

____________________

Kara M. Fay on brief for appellant.

States Attorney, and Andrew J. Rei

Assistant United States Attorney, on brief for appellee.

____________________

___________________

Per Curiam.
__________

Appellant-defendant Robert R.

Girard

appeals

from

his

conviction

intimidating and

using physical

retaliation

past

testimony

U.S.C.

for

in

an official

jury

and

to

proceeding,

in

trial

of

witness in

prevent

future

violation of

18

We affirm the conviction.

Failure to Grant
Continuance to Review Jencks
____________________________________________________

Material
________

deny

force against a

testimony

1512(b) and 1513(b).

I.

after

"A trial court has wide discretion to grant or

a request

for continuance.

'Only an

arbitrary insistence

upon expeditiousness

justifiable

for delay

request

assistance of counsel' and

discretion."

United States
_____________

Cir. 1996)(citation

violates

unreasoning and

in the face

the

right to

of a

the

would amount to an abuse

of that

v. Brand, 80 F.3d 560,

564 (1st

omitted).

In determining

whether there

has

been an abuse of discretion,

"appellants'

special reasons, plus

the amount of time needed

whether

predicament,

the

the

inconvenience to

relevant factors such as

for effective preparation and

amount actually available,

and

this court should consider

defense

likely

the court,

diligence in preparing

contributed

utility

to

of

opposing party,

its

the

for trial

perceived

continuance,

and witnesses,

and any unfair prejudice caused by the denial." Id.

"The Jencks

Act by its

terms limits disclosure

of the

disputed information until after a witness' direct testimony.

18

U.S.C.

3500(a).

The

district

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court then,

'in

its

discretion, upon application

of [the] defendant, may

recess

proceedings in the trial for such time as it may determine to

be reasonably required for

by

said defendant

trial.' 18 U.S.C.

the examination of such statement

and his

3500(c)."

preparation for

its use

in the

United States v. Arboleda, 929

F.2d 858, 863(1st Cir. 1991).

Here, appellant

contributed to

his own

predicament by

failing to request

or

at

any

defense

time

during Francisco's

counsel was

start of

given

Francisco's

request a

the

a continuance prior to

witness.

particular

detriment

disclosure.'"

Id.
__

material before

direct

examination

appellant

has

suffered

as

at 864.

failed

In light

of

court's

to

precluded

inconsistent

cross-examination

continuance

on

of its

to

result

appellant to the assault

grant

did

the

not

transcripts until after

evidence linking

refusal

Although

cross-examination, appellant

had begun

Moreover,

testimony.

the Jencks

continuance to review the

government

cross-examination

next

show

of

"'a

delayed

the considerable

on Francisco, the

--

Francisco's

even

if

it

allegedly

testimony about the color of the car -- did not

seriously prejudice the defense.

II. Failure to Read Back Testimony

"[W]e

have

testimony during

sound discretion."

long

and

repeatedly

held that

jury deliberations rests

United States
_____________

-3-

rereading

in the presider's

v. Akitoye, 923
_______

F.2d 221,

226 (1st Cir. 1991).

court had

specific

emphasized

fresh in

not abused

request

the

its discretion in

for

testimony

that "[t]he

trial

the jurors' minds, a

lessens the need for

that

In Akitoye, we ruled
_______

request

to

that the district

denying the

be

was brief

read

back.

and the

We

testimony

circumstance which ordinarily

rereading." Id. at 226.

was

jury's

"broad

and

general

We

also noted

--

not

'well

focused.'" Id.
___

The factors supporting the denial of a reread in Akitoye

were also

present in this

case lasted for

jury sought to

case.

The

less than two days.

review had

trial in the

The

been given only

instant

testimony that the

the day

before.

Although defense

counsel suggested that the

jury might want

to further focus its request, the jury did not pick up on the

suggestion.

Nor did

defense counsel

specifically request

that the jury

be questioned regarding the particular area of

confusion that had led to the transcript

the

back

jury in

this case

request.

Moreover,

never specifically requested

a read

once it was told that the transcript was not available.

There was no abuse of discretion.

III. Sufficient Evidence of Knowledge

Appellant argues that

'knowledge' of any

"the prosecution failed to

degree that the Appellant

was aware that

Francisco implicated the Appellant in any federal

or

that any federal matter

prove

was pending." Under

proceeding

18 U.S.C.

-4-

1512(b), it

physical

is unlawful to "knowingly

force [or to threaten]

intent to . . . influence,

any

person

in

an

another person, with

delay or prevent the testimony of

official proceeding."

proceeding need not be

the time of

. . .

use[] intimidation or

pending or about to be

the offense." 18 U.S.C.

"[A]n

official

instituted at

1512(e)(1).

"Both

federal

trial and

federal grand

'official proceedings' within

United States
_____________

v. Frankhauser,
___________

jury investigation

the meaning

80 F.3d

of the

641,

are

statute."

651 (1st

Cir.

1996).

"Section

engagement in

1513(b)

proof

of

conduct; (2) either causing

cause, bodily injury

retaliate

requires

against

to another person;

any

person for,

(1)

knowing

or threatening to

(3) with intent

inter

alia,

to

providing

information relating to the commission of a federal offense."

United States v. Paradis, 802 F.2d 553, 562 (1st Cir. 1986).
______________
_______

Therefore, to prove intent to retaliate against a witness, it

is

necessary to

prove knowledge

by the defendant

witness provided information relating

that the

to the commission of a

federal offense.

"On appeal,

sufficiency of

[this court]

the evidence under a familiar

evidence must be viewed

government, drawing

all

credibility

review[s] a challenge

standard.

'in the light most favorable

all legitimate inferences

determinations in

-5-

favor

to the

The

to the

and resolving

of the

verdict.'

Thus probed, the verdict must be upheld if any rational trier

of fact could have found the elements of the offense beyond a

reasonable doubt." United States v. Victor, 973 F.2d 975, 977

(1st Cir. 1992)(citations omitted).

In this

case, there was sufficient

evidence from which

the jury could have found beyond a reasonable doubt both that

appellant was aware of

federal

authorities

there to be a future

the evidence as a

on

August

15,

Francisco's past cooperation with the

and that

appellant

federal proceeding.

at

least expected

In the context

of

whole, appellant's statements to Francisco

1995,

were

"direct

evidence

that

[the

defendant] in fact expected a grand jury investigation and/or

a trial in the foreseeable future, and that his intent was to

[prevent the witness from testifying at] such a proceeding or

proceedings." Frankhauser, 80 F.3d at 652.

entitled

to

relief on

his

Appellant

insufficiency

of the

is not

evidence

claim.

IV. Ineffective Assistance of Counsel

"To

obtain

reversal

assistance of counsel a

on the

basis

of

ineffective

defendant must show that there

is a

reasonable probability that, but for counsel's unprofessional

errors,

the factfinder

would

have had

a reasonable

respecting guilt."

United States v. Palow, 777 F.2d

(1st

cert.
denied,
______________

Cir.

1985),

475

U.S.

1052

doubt

52, 57

(1986).

Appellant

raised the ineffective assistance claim before the

-6-

district

court in his motion for

court

ruled that

"other

than to

fell below the

appellant

say that

a new trial.

had failed

somehow Mr.

performance one would

The district

to claim

prejudice

Williams' performance

expect of an

attorney

under the circumstances."

that

appellant

has

We agree with

failed

to

the district court

demonstrate

prejudice.

Accordingly, we need not reach the issue of whether counsel's

performance was deficient.

A.

Failure
to
Cross-Examine Francisco
Regarding
___________________________________________________

Inconsistencies in Testimony on the Color of the Car.

was

There

no prejudice from this failure for the reasons discussed

above

in connection

continuance.

Viewed

with

the court's

in the context

whole, the alleged inconsistency

doubt

that

if

the

jury

had

failure

to grant

of the evidence

as

does not raise a reasonable

been

confronted

with

that

inconsistency, it would have acquitted appellant.

B.

Conflict Between Attorney and Client.

Appellant's

second

ineffective

court

erred

regarding

in

assistance argument

not

determining

the breakdown

is

the need

in communication

that the

for

trial

hearing

between appellant

and his attorney. "Where the accused voices objections to the

appointed counsel,

the trial

court should inquire

into the

reasons for the dissatisfaction." United States v. Allen, 789

F.2d

90,

(1986).

92 (1st

In this

Cir. 1986),

cert. denied, 479

case, however, appellant did not

-7-

U.S. 846

voice any

objections

to

counsel and,

therefore,

the

court was

not

obliged to make an inquiry into the cause of dissatisfaction.

Although

appellant never

substitution of

defense

counsel, the

requested

district

a continuance

or

court's response

to

counsel's comments at the start of the second day of

trial implied that it

had found that there was not

a "total

lack of communication preventing an adequate defense." United

States v. Pierce,
______
______

denied,
______

60 F.3d

__ U.S. __,

886, 891 (1st

116 S. Ct.

Cir. 1995),

2580 (1996).

cert.
_____

That implied

finding

is

supported

by

the

record.

Defense

counsel

hesitated even to characterize the difference of opinion as a

disagreement.

indicates

appellant

effectively.

C.

The

benefits

and

his

the second

attorney

were

day of

trial

communicating

The district court did not err.

Failure to Call Kenneth Landry as a Witness.

"The decision

almost

transcript of

always

whether to

strategic,

and risks

of the

United States, 987 F.2d 48,

has failed to show

call a particular

requiring

witness is

balancing

anticipated testimony."

54 (1st Cir.

how the failure to call

1993).

of

the

Lema v.
____

Appellant

Landry "deprived

him of a 'viable defense.'" United States v. Porter, 924 F.2d

395,

397

(1st

Cir.

Gonzvales

that

the

1991).

Subaru

contradict Landry's statement

Testimony

was

by

Francisco

"dark-colored"

that the car

and

does

not

was black.

The

comment

the

-8-

failure

noisiness

of

Francisco

of the Subaru

and

Gonzvales

to

is inconsequential in

on

light of the

considerable other

at Francisco's

evidence linking appellant

shop on

August

15, 1995.

The

to the events

ineffective

assistance of counsel claim fails.

For all of the

summarily affirmed.
__________________

above reasons, appellant's conviction is

See Loc. R. 27.1.

-9-