

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-2309

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                    JOSE V. ANDRADE, JR.,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Reginald C. Lindsay, U.S. District Judge]                                                                 

                                         

                            Before

                    Boudin, Circuit Judge,                                                     

                Coffin, Senior Circuit Judge,                                                        

              and Dowd,* Senior District Judge.                                                          

                                         

Miriam Conrad, Federal Defender Office, for appellant.                         
James  F.  Lang,  Assistant  United  States  Attorney,  with  whom                           
Donald K. Stern, United  States Attorney, was on brief  for the United                       
States.

                                         

                       February 3, 1998
                                         

                                            

*Of the Northern District of Ohio, sitting by designation.

     BOUDIN,  Circuit Judge.   Jose V. Andrade,  Jr., appeals                                       

from  his conviction  for  conspiracy  to  engage  without  a

license in the business of  dealing in firearms, 18 U.S.C.   

371,  922(a)(1)(A)  (1994),  and  for  transporting  firearms

without  a  license  into  his  state  of  residence,  id.                                                                         

922(a)(3).   The  facts pertaining  to the  issues  raised on

appeal  are largely undisputed.   As  the sufficiency  of the

evidence is not an issue, we abbreviate the facts.  

     Andrade,  a  native of  Boston,  attended  Jackson State

University in Jackson, Mississippi, during 1993 and 1994.  At

the  time, the authorities  suspected Andrade of  moving guns

illegally from Mississippi to Massachusetts.  On December 16,

1994,  Andrade--then in  Boston  for Christmas  vacation--was

arrested  and questioned  in  circumstances described  below.

His family apartment  and two others occupied by cousins were

searched on the same day based on search warrants or consent.

Andrade was  released the  same day,  questioned  at home  on

December 19, and rearrested in March 1995.

     On April 26,  1995, Andrade was indicted  for conspiracy

to engage in gun dealings, together with Christopher Todd and

Terrance Smith,  who were alleged to have  purchased guns for

Andrade in Mississippi; as residents,  it was easier for them

to purchase guns than for Andrade to do so.  In January 1996,

the  grand  jury  issued  a  superseding  indictment  against

Andrade, adding the second count (transporting firearms  into

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Massachusetts).   By  that time,  Todd  had pled  guilty, and

charges against Smith had been dismissed.

     On  May 8,  1996, the district  court issued  a decision

refusing to suppress statements that  Andrade had made to the

authorities on  December 16 and  December 19 and  refusing to

suppress the results of the  searches of December 16.  United                                                                         

States  v. Andrade,  925 F.  Supp.  71, 81  (D. Mass.  1996).                              

Andrade  was tried  before  a  jury in  May  1996, the  trial

lasting about two  weeks.   The most  damaging testimony  was

given by Todd and Smith.

     Both men gave detailed accounts of Andrade's requests to

them in 1993 and 1994 to buy handguns and his statements that

he planned to  take them to Boston  to sell.  Todd  and Smith

each  described multiple  occasions  on  which, in  Andrade's

company, they purchased handguns for Andrade in different gun

shops and pawnshops, Andrade selecting the weapons and taking

them afterwards from Todd or Smith.  Certain of the guns were

later recovered by the police in Boston.

     Two  pawnshop   employees,  from   different  pawnshops,

identified Andrade as  an individual who accompanied  Todd on

specific occasions.  Michael  Spinola, Andrade's first cousin

and friend,  admitted saying  that Andrade  had told  Spinola

that he was bringing guns  from Mississippi to Boston to sell

and that Spinola  had seen some of the  weapons; but although

Spinola  had given detailed  testimony to this  effect to the

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grand jury, at trial he described much of it as lies.   There

is also testimony  from a former friend of  Andrade, who said

that   in  December  1994  after  the  search  warrants  were

executed, Andrade had asked the friend whether he would store

a suitcase of guns for Andrade.

     Andrade   sought   to  impeach   government   witnesses.

Although  he   did  not  testify  himself,   Andrade  offered

testimony of Manuel Correia, who had been his roommate at the

University in Mississippi.   Correia said that he  had driven

from Jackson to Boston with  Andrade three times, had seen or

helped  Andrade pack,  and had  never seen  any guns  around.

Andrade's own  statements, and  some of  the evidence  seized

from  the   apartment  searches,   were  introduced  by   the

government.

     The jury  retired to  deliberate on May  29, 1996.   The

next day  it asked the court  to answer a question  about the

substantive count (transporting guns into Massachusetts); the

question and  court's reply  are at issue  on appeal  and are

discussed below.   On May  31, Andrade was convicted  on both

counts and later sentenced to 46 months in prison.  

     Andrade's  first claim  of error  is  that the  district

court  admitted statements that  Andrade had made  during his

December  16 interrogation at the police  station.  After his

arrest, Andrade  was taken to  an office in a  Roxbury police

substation and  handcuffed  to a  chair.   There,  Bureau  of

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Alcohol,  Tobacco and  Firearms  agent  Daniel Campbell  read

Andrade the  Miranda warnings,  see Miranda  v. Arizona,  384                                                                   

U.S. 436, 478-79  (1966), and asked him if  he understood his

rights; Andrade  said that he  did.  A state  police officer,

Francis Matthews, was also present.  

     Campbell told  Andrade that  he was under  investigation

for  gun shipments, and  that the police  had search warrants

for two premises connected  with Andrade.  Andrade said  that

he had bought guns in Mississippi but that he was a collector

and not a dealer.   Andrade also identified a third apartment

where  he had  stayed.   Campbell  then went  to execute  the

search warrants  and obtained  permission from  the owner  to

search the third apartment.  

     After Campbell  left, an  INS agent  sought to  question

Andrade  about his immigration  status.  Andrade  refused, so

Matthews told  the agent to  leave.  A Boston  police officer

then entered and, hearing  Andrade tell Matthews that he  was

not a firearms dealer, accused Andrade of lying; there was an

angry  reply from Andrade, and Matthews told the detective to

leave.   After some further discussion between them, Matthews

said to Andrade  that he would not keep  bothering Andrade if

he didn't  want to  talk, and Matthews  then spent  about two

hours on paperwork while Andrade slept in the chair.

     At some  point  during the  searches, police  apparently

suggested  to  Andrade's  sister  that  she  talk to  him  by

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telephone;  she did so,  crying and pleading  with Andrade to

talk  to  the   police.    When  Campbell   returned  to  the

substation,  Andrade  had  been held  for  about  four hours.

Campbell woke him  and asked him if he  remembered the rights

that had been read to him earlier.  Andrade said that he did.

     At this point, Campbell said  that he knew that Todd and

Smith had purchased guns for Andrade in Mississippi.  Andrade

replied that he knew Todd and Smith and was present when they

purchased  guns.  Andrade admitted that he obtained guns from

Todd and Smith but said that he  had sold them in Mississippi

to three  men from Houston, although he  also admitted having

given a couple of guns to two men in Boston.  

     Andrade was  released after  offering to  cooperate with

the police in retrieving weapons that the police thought were

still at large in Boston.  Seeking this cooperation, Campbell

and a  Boston Police  detective visited  Andrade  at home  on

December 19, where Andrade  said that three men  from Houston

would  soon be  arriving in  Boston  with weapons  and drugs.

Andrade offered to introduce the  men to Campbell.  Andrade's

statements on both days were offered in evidence at trial.  

     In  this  court,   Andrade  does  not  claim   that  the

statements  he made were involuntary.   Instead, he says that

by  repeated questioning police failed  to honor his right to

remain silent  under the  Miranda doctrine,  see Michigan  v.                                                                     

                             -6-                                         -6-

Mosley, 423  U.S.  96, 104  (1975),  and that  when  Campbell                  

resumed questioning after completing the apartment  searches,

there was no adequate waiver when Andrade made the statements

in  the  second  interrogation.    The  district  court  held

otherwise, and we agree. 

     Miranda  requires  that  the police  warn  a  suspect in                        

custody  of his  right to  counsel  and his  right to  remain

silent.  If  the police have failed to give  the warnings and

obtain a waiver of rights, the  statements are excluded, even

if  otherwise voluntary.   Where the suspect  asserts that he

wants to consult  with counsel, questioning must  cease until

counsel is provided.   See Edwards v. Arizona,  451 U.S. 477,                                                         

484-85 (1981).   But  when a defendant  invokes his  right to

remain silent,  Mosley makes clear  that the  police are  not                                  

automatically forbidden from later resuming interrogation.

     Andrade's   initial   statements    to   Campbell   were

voluntarily made after full warnings.  Andrade's later rebuff

of the INS agent and  police detective were refusals to speak

to  them but  were  not couched  as a  refusal  to talk  with

anyone.  When Matthews ended  his own questioning, it appears

that Andrade  no longer  wanted  to talk  with Matthews,  but

neither  did  Andrade  rule out  the  possibility  of talking

later.  

     We  see nothing wrong with Campbell's decision to resume

questioning  of Andrade  after the  searches.   A  reasonable

                             -7-                                         -7-

interval  separated  the  two  periods  of  questioning,  see                                                                         

Mosley, 423 U.S. at 106, and there was no repeated attempt to                  

reverse  a refusal  to  talk  through  undue pressure.    The

circumstances  were  quite  different  in  United  States  v.                                                                     

Barone, 968  F.2d 1378 (1st  Cir. 1992), where  the defendant                  

resisted  questioning,  was  held  for  over  24  hours,  was

interrogated four times before he began to discuss the crime,

and was twice intimidated by suggestions that he "would be in

substantial  [physical]  danger  if  he  returned  to  Boston

without cooperating."  Id. at 1385; see also id. at 1386.                                                            

     Whether Andrade's later statements reflected a waiver of

his right to remain silent is a closer issue.  The problem is

that the Supreme  Court has said, almost in  the same breath,

that "mere silence is not enough" for a waiver, but that this

"does not mean  that the defendant's silence, coupled with an

understanding  of  his   rights  and  a  course   of  conduct

indicating  waiver, may never  support a conclusion  that the

defendant has waived his rights."   North Carolina v. Butler,                                                                        

441 U.S. 369, 373 (1979).  The waiver issue, it appears, must

be decided on the facts.  See id. at 374-75.                                             

     Here, we have no reason  to doubt that Andrade knew that

he had a right to remain silent; at the outset of  the second

round, Campbell  reminded him  of the  earlier warnings,  and

Andrade confirmed that he remembered.  As for the intervening

events,  Matthews'  dismissal  of the  INS  agent  and police

                             -8-                                         -8-

detective, when Andrade demurred, fairly conveyed the message

that Andrade  was in  charge of the  decision whether  and to

whom  he  would  speak.    By ending  the  initial  round  of

questioning, Matthews himself reinforced this message.

     Andrade's  subsequent admissions  to  Campbell were  not

confessions  wrested from  a reluctant  detainee.   Andrade's

statements were partly consistent  with Andrade's cover story

(selling the weapons to three men from Houston) and partly an

attempt to explain  away the presence of some  of the weapons

in  Boston.   In short,  Andrade  had a  rational reason  for

choosing not to remain silent.   While a written waiver would                    

have   helped  the  government,   it  is  not   a  mechanical

requirement.1

     Andrade's  next   claim  is   that  the   trial  court's

instructions  on  the  first  count--conspiracy  to  deal  in

firearms   without   a  license--set   too  low   a  scienter

requirement.  18 U.S.C.   924(a)(1)(D) provides that a number

of weapons offenses, including the offense of dealing without

a license, require  that the proscribed conduct  be willfully

undertaken.   Andrade's counsel  asked the court  to instruct

the jury that this in turn required proof beyond a reasonable

doubt  that "the  defendant  knew  that Section  922(a)(1)(A)

                                                    

     1Compare United States v. Christian, 571 F.2d 64, 66, 69                                                    
(1st Cir. 1978)  (no waiver where a defendant's  signature on
an FBI waiver form showed  that he had admitted being advised
of his rights, but conspicuously omitted his signature on the
line provided for a waiver of those rights).

                             -9-                                         -9-

requires  one  who engages  in  the  business  of dealing  in

firearms to obtain  a dealer's license from  the Secretary of

the Treasury."

     The  district court  refused  to give  this instruction.

Instead, it  told the  jury that one  acts willfully  when he

intentionally commits  acts proscribed by law "with knowledge

that his conduct is unlawful."  The court said that knowledge

of  illegality had  to be  proved beyond a  reasonable doubt.

But it  also instructed that  the government did not  have to

prove that the defendant knew of the specific statute that he

was charged  with violating  or that  he intended  to violate

that particular statute.

     If case law from  other circuits is put to one side, the

issue appears  easy.  The  term "willful" is used  in various

ways,  but the standard definitions normally emphasize that a

defendant  acted  "with  knowledge  that   [his]  conduct  is

unlawful,"   1 L. Sand,  J. Siffert, W. Loughlin  &amp; S. Reiss,

Modern  Federal Jury Instructions    3A.01, at  3A-18 (1997).                                             

Willfulness is often required where a statute outlaws conduct

commonly  thought  to  be  lawful.    In  some  measure,  the

willfulness  requirement  reverses  the   usual  rubric  that

ignorance of the law is no defense.   Just how much ignorance

may be needed is a different matter.

     Nothing in the traditional  willfulness instruction, nor

in  its  underlying  purpose,  requires  that  the  defendant

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possess specific  knowledge of  the statutory  provision that

makes his conduct unlawful.   To impose such a requirement of

detailed knowledge  of the  firearms statutes  (to which  few

judges could  pretend) would make  an enforcement of  the gun

dealer laws  very difficult.   And the requirement  goes well

beyond what is needed to  screen out an innocent who honestly

thought that his conduct was lawful.

     Our  view  accords  with  the  purpose  of  Congress  in

adopting the willfulness requirement in  the Firearms Owners'

Protection  Act  of 1986,  Pub.  L.  99-308,  100 Stat.  449.

Congress's concern  was that,  because of  the nature  of the

conduct  and technicality of the statute, some offenses might

be  committed  by  individuals who  were  unaware  that their

conduct  had been  made criminal.2    Nothing indicates  that

Congress was  concerned with protecting individuals  who knew

that their conduct was unlawful but might not be able to cite

chapter and verse as to which precise provision made it so.

     The proponents  of the willfulness  requirement, to  the

extent that we  can discover their comments, said  nothing to

suggest that the term was  intended to go beyond its ordinary

                                                    

     2The willfulness requirement applies  to some gun crimes
and  not  others, and  the  dividing  line is  crudely  drawn
between actions that anyone might expect to be unlawful, see,                                                                         
e.g.,  18  U.S.C.      922(v),  924(a)(1)(B)   (semiautomatic                
assault weapon  crimes), and  actions that  might not  always
appear  unlawful, see,  e.g.,  id.      922(e),  924(a)(1)(D)                                              
(shipping  a firearm in  interstate commerce  without written
notice to the common carrier).

                             -11-                                         -11-

meaning, that is,  awareness that one's conduct  is unlawful.

The only suggestions that the statute might require knowledge

of  the "details"  of  the  law came  from  opponents of  the

amendment; given  the incentive to  exaggerate, such  remarks

normally get  little  weight.    NLRB v.  Fruit  &amp;  Vegetable                                                                         

Packers &amp; Warehousemen, Local 760, 377 U.S. 58, 66 (1964).3                                             

     The  Second   Circuit  has   squarely  ruled   that  the

government need only prove  that the defendant knew that  his

conduct was illegal.  United  States v. Collins, 957 F.2d 72,                                                           

76-77,  cert. denied,  504 U.S.  944  (1992).   Accord United                                                                         

States v.  Allah, 130 F.3d  33, 38-41 (2d Cir.  1997); United                                                                         

States v.  Bryan, 122 F.3d  90, 91 (2d Cir.),  cert. granted,                                                                        

118 S.  Ct. 622  (1997).  The  Seventh Circuit's  decision in

United States v. Obiechie, 38 F.3d 309 (1994), largely points                                     

toward  a  standard  of   general  knowledge  of  illegality,

although  one  sentence   suggests  that  knowledge  of   the

licensing requirement may be required.  See id. at 316.                                                           

     Several other circuits--including the Third and Eighth--

say  generally that the defendant must have "knowledge of the

                                                    

     3Compare 132 Cong.  Rec. 6876 (1986) (statement  of Rep.                         
Hughes)  (opponent's  comments  that  the  new statute  would
require the defendant to know  "what the law is, every detail
of the law. . . .  [I]t would be a  prosecutor's nightmare"),
with  id. at 6861  (statement of Rep.  Boehlert) (supporter's                     
comment that the  statute rejected mere knowledge  of conduct
in favor of  "some sort of criminal intent").   The scattered
and extensive legislative  history is recounted in  D. Hardy,
The Firearms Owners' Protection Act:   A Historical and Legal
Perspective, 17 Cumb. L. Rev. 585, 604-07, 645-53 (1987).                                         

                             -12-                                         -12-

law," e.g.,  United States  v. Hayden, 64  F.3d 126,  130 (3d                                                 

Cir. 1995)  ("the defendant  must have  acted with  knowledge

that his  conduct was unlawful"); United States  v. Hern, 926                                                                    

F.2d   764,  767  (8th   Cir.  1991)  ("`willful'   means  an

intentional  violation of  a  know legal  duty").   But  this

language  could  be read  either  to support  Andrade  or the

Second Circuit.  And the matter is  further confused because,

in  purporting to disagree  with the Second  Circuit, several

such decisions misunderstand its position.4

     Admittedly,  two  other  circuits  say  that  conviction

requires proof that the defendant  was aware of the licensing

requirement   itself,  but  we   do  not  find   these  cases

persuasive.  See United States  v. Rodriguez, 1997 WL 797506,                                                        

at *4  (5th Cir.  Dec. 31, 1997);  United States  v. Sanchez-                                                                         

Corcino,  85  F.3d  549,  553-54  (11th  Cir.  1996).    Even                   

decisions  like  Rodriguez,  purporting to  require  specific                                      

awareness of the statute, dilute the requirement by inferring

specific  knowledge  from   circumstantial  evidence.     See                                                                         

Rodriguez, 1997 WL 797506, at *4.                     

     Such  evidence  is likely  to  be  good proof  that  the

defendant knew that  his conduct was  unlawful but very  thin

                                                    

     4The  Third Circuit, for example, ascribes to the Second
Circuit the view that the government need prove only that the
defendant  knew what he  was doing.   Hayden, 64  F.3d at 130                                                        
n.6.   The  Second  Circuit  has,  to  our  knowledge,  never
expressed  this view.    See  Collins, 957  F.2d  at 77  (the                                                 
evidence  "demonstrate[d] that  Collins  understood that  his
firearms sales violated the law").

                             -13-                                         -13-

evidence that  the defendant  knew what statute  made it  so.

See Rodriguez, 1997  WL 797506, at *6  ("counter-surveillance                         

operations," "unease about the sale," and "experience at `The

Bunker'  and with firearms" gave defendant a "background from

which she should have been familiar with the firearms laws").

See also Obiechie, 38 F.3d at 316 ("An inference of knowledge                             

could be  drawn  from the  fact that  [defendant] had  listed

`gift' as  his reason for purchasing  the [guns] . .  . after

having indicated that the first two purchases were for retail

sale.").   Since juries are  being allowed to convict  on the

basis of such evidence, nothing  is gained by instructing the

jury with  language suggesting  that the  standard is  higher

than it actually is. 

     Nor  is Andrade's position  supported, as he  claims, by

Ratzlaf v. United States, 510  U.S. 135 (1994).  Ratzlaf held                                                                    

that a currency structuring violation  required "knowledge of

illegality [as]  an element"  to show  willfulness, Bates  v.                                                                     

United States,  118 S. Ct. 285, 290 n.6 (1997), which is just                         

what  the district  court told  the jury  here.   In Ratzlaf,                                                                        

knowledge of  a specific statute  (or something close  to it)

was also required--not because of the willfulness requirement                    

but because the statute itself required a "purpose of evading

the reporting requirements"  of 31 U.S.C.   5313(a).   See 31                                                                      

U.S.C.   5324.   This additional wrinkle is  not part of  the

present case.

                             -14-                                         -14-

     In  short, after surveying  the cases, we  feel on solid

ground  in joining  the Second  Circuit position  that it  is

enough  that the  defendant  be  aware  that his  conduct  is

unlawful.  Such knowledge, needless  to say, depends upon the

circumstances.   In  our  case, the  scale  of Andrade's  gun

smuggling activity, his  denials of gun dealing in the police

station,  and  other  evidence  that he  sought  to  hide the

weapons are powerful  indications of his awareness.   Andrade

himself makes no claim  that the evidence is  insufficient on

this score if the district court's instruction is upheld.

     The remaining claim of error  that we think necessary to

address  concerns  a supplemental  instruction  given by  the

district court in answer  to a question from  the jury.   The

second  count charged Andrade with the substantive offense of

transporting  firearms  without  a license  into  a  state of

residence.     Following   the  charge   and   a  period   of

deliberation,  the jury submitted  a written question  to the

court as follows:

     The jury requests a description of clarification of
     the term  "transport" as it  is used in Page  22 of
     the Jury instructions, i.e.:   Does defendant  have
     to  personally transport or deliver guns?  Is (sic)
     acceptance of said guns in Massachusetts constitute
     transportation,  especially   in  the   phrase  "to
     transport into" or "receive"?

     After consulting with  the parties,  the district  court

told  the jury  that, given  the government's  theory  of the

case,  it would not  be enough for the  jury to conclude that

                             -15-                                         -15-

the   defendant  "merely   received  or   accepted  guns   in

Massachusetts."5   However, the court said that Andrade would

be  guilty if  he had  caused  "an agent,  employee or  other

associate" to bring  the guns into Massachusetts.   Andrade's

counsel, in  turn,  objected  to  this  further  supplemental

instruction.

     The  supplemental charge was legally correct.  At common

law one is  liable as a principal if  one deliberately causes

or procuring another to perform a criminal act, 2 W.R. LaFave

&amp; A.W. Scott, Jr., Substantive  Criminal Law   6.6(a), at 126                                                        

(1986),  and the  principle has  been carried  forward by  18

U.S.C.   2(b).   Unlike aiding and abetting  liability, id.                                                                         

2(a), there is no requirement  that the intermediary be shown

to  be criminally  liable.   Section 2(b)  is not  a separate

offense but  a general  principle of  liability that  applies

without  any need for  reference in  the indictment.   United                                                                         

States v. Sabatino, 943 F.2d 94, 99-100 (1st Cir. 1991).                              

     Andrade  says  that  delivering  the  instruction  after

closing  arguments  violated  Fed.  R.  Crim.  P.  30,  which

requires that the court rule on requested instructions "prior

to their arguments  to the  jury."   By its terms  and, as  a

                                                    

     5In  his  original  instructions,  the  trial  judge had
already told the  jury--consistent with the  indictment--that
the charge against Andrade had as a necessary element that he
had  transported  the  guns  into  Massachusetts.    However,
earlier the  judge had  quoted the statute  in full,  and the
statute  makes transportation or  receipt criminal,  if other                                            
conditions are met--which may explain the jury's question.

                             -16-                                         -16-

matter  of  necessity, Rule  30  refers  only  to rulings  on

instructions  requested by  counsel "[a]t  the  close of  the

evidence or at such earlier time" as the court directs.  Fed.

R. Crim.  P. 30.   The  rule  simply does  not prescribe  the

procedure  for supplemental  instructions after the  jury has

retired.  See  United States v. Fontenot, 14  F.3d 1364, 1368                                                    

(9th Cir.), cert. denied, 513 U.S. 966 (1994).                                    

     The defense now  says that at least it  should have been

allowed to address  the jury on  this "new theory,"  pointing

out to it that there was no specific evidence that anyone had

transported the guns at Andrade's direction.  We agree that a

refusal  to permit  further  argument  made  necessary  by  a

supplemental instruction could amount to  error.  But here it

is enough to say that no such request to make further closing

argument  after the supplemental instruction was made in this

case.

     Further, the notion  of prejudice is fanciful.   Defense

counsel pointed out to the  jury in her original closing that

there was no direct evidence showing Andrade's transportation

of the guns  to Massachusetts.  It had to be equally clear to

the jury that  there was no direct evidence  that Andrade had

asked  an "agent, employee  or other associate"  to transport

the guns for  him.  To spell out the obvious would have added

nothing.

                             -17-                                         -17-

     At the same  time, there was enough evidence  for a jury

to  conclude  that   somehow  Andrade  had  managed   to  get                                        

Mississippi guns to Boston; among much else, Andrade had told

Todd and Smith that he planned to do so, and some of the guns

had  in fact  been recovered  here.   The  government had  no

obligation to prove the means of transportation.  In context,

the supplemental instruction  did little more than  make this

clear to the jury, and properly so.

     There is no  need to address  in detail Andrade's  final

attack on the  trial judge's instructions; taken as  a whole,

we do not believe the charge tended to mislead or confuse the

jury.   Although Andrade's  arguments have not  prevailed, we

think it  fair to note  that several of them  are substantial

and that  Andrade has been  represented on  this appeal  with

singular skill and ingenuity.

     Affirmed.                         

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