
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 90-1882                                    UNITED STATES,                                      Appellee,                                          v.                                   SCOTT N. ROGERS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Gordon R. Blakeney, Jr. for defendant, appellant.            _______________________            Peter E. Papps, First Assistant  United States Attorney, with whom            ______________        Paul M. Gagnon, United States Attorney, was on brief for appellee.        ______________                                 ____________________                                   December 8, 1994                                 ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Scott  N. Rogers was convicted under 18 U.S.C.   922(g)(1) as            a  felon  in  possession  of  a  firearm.    He  appeals  his            conviction on various grounds.  We affirm.                                      I.  FACTS                                      I.  FACTS                                          _____                      The evidence, taken in  the light most favorable to            the government, see United  States v. Ford, 22 F.3d  374, 382                            ___ ______________    ____            (1st  Cir.), cert. denied, 115  S. Ct. 257  (1994), tended to                         _____ ______            show the following.                      On April  4, 1989, four police  officers arrived at            an  apartment  on  5   Wheelock  Street  in  Manchester,  New            Hampshire,  where Rogers,  who had  escaped from  prison, was            believed  to  be hiding.   Two  of  the officers  entered the            bedroom in the northeast corner  of the apartment, where they            found Rogers in the closet and took him into custody.  A pat-            down revealed a .32  caliber bullet in his right  front pants            pocket.  Rogers announced that  the officers were lucky  they            found him  before he got to  his gun, or he  would have blown                                         ___            his brains out.                      In  the meantime,  the  third officer  went to  the            bedroom in  the northwest corner  of the apartment,  where he            found a .32 caliber Smith and Wesson handgun in plain view on            top of the dresser.   The gun was fully loaded.   The officer            unloaded the gun and seized it as evidence.  A fourth officer                                         -2-                                          2            went  into  the center  bedroom, where  he found  and briefly            detained one Michael Glennon, a friend of the defendant.                      Rogers was  taken to  the police station,  where he            was  given  Miranda  warnings.    Rogers  indicated  that  he                        _______            understood  his rights and signed  a waiver form.   He stated            that  the gun  seized  at the  apartment  was a  "throw-away"            weapon that he  had purchased  for fifty dollars.   He  again            stated that he had  intended to use the gun to commit suicide            if the police got close to him.                      Rogers was questioned  about several burglaries  in            Manchester.    He  admitted  that  he  was  involved  in  two            burglaries  at the Louisa's pizzeria,  as well as  a third at            the Sub Hut.                      A  federal   grand   jury  returned   a   one-count            indictment charging Rogers as a convicted felon in possession            of  a firearm in violation of 18  U.S.C.   922(g).  At trial,            Rogers testified  that the  gun belonged to  Michael Glennon,            and denied  making any  statement about shooting  himself, or            being  the  owner  of  the  gun.    In  fact,    none of  the            fingerprints found on the gun belonged to Rogers.  The bullet            found  in his  pocket  allegedly came  from  a box  of  fifty            bullets that Glennon had  bought.  Glennon, Rogers testified,            liked to  flick bullets at him in horseplay.  On the night he            was  arrested, Rogers  allegedly  stepped on  a bullet  as he            walked  barefoot in  the living  room of  the apartment.   He                                         -3-                                          3            picked  up the bullet and slipped it in his pocket, intending            to place it in a jewelry box elsewhere in the apartment.                      The other witness called  by the defense was Joseph            Perkins,  the defendant's brother, who testified that Glennon            pulled the gun out of his pocket to show it to him during one            of his visits to the apartment.                      Rogers was convicted  on May 2,  1990.  Because  he            had committed  at least five previous  felonies, the district            court imposed  the  statutory mandatory  minimum sentence  of            fifteen years.  See 18 U.S.C.   924(e).                            ___                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________                      A.  Constructive Possession                      A.  Constructive Possession                      Rogers argues  that the  "possession" of  a firearm            under 18 U.S.C.    922(g) must be  actual, not constructive.1            Constructive possession, however, is possession.   See United                                              __               ___ ______            States  v. Zavala Maldonado, 23  F.3d 4, 6  (1st Cir.), cert.            ______     ________________                             _____            denied,  115   S.  Ct.   451  (1994)  ("Under   settled  law,            ______            'possession'  includes not merely the state of . . . hands-on            physical possession but also 'constructive' possession").  In            United  States v.  Wight, 968  F.2d  1393, 1397-98  (1st Cir.            ______________     _____            1992), we "ma[de]  explicit the obvious" and  found that "the            element of 'knowing  possession' under section 922(g)(1)  may                                            ____________________            1.  Section 922(g) provides in pertinent part:   "It shall be            unlawful for any  person . . . who has  been convicted in any            court of []  a crime  punishable by imprisonment  for a  term            exceeding one year to . . . possess . . . any firearm."                                         -4-                                          4            be  established   by  proving  that  the   defendant  was  in            constructive  possession of  a firearm."   Wight  adopted the                                                       _____            prevailing (and only)  rule in  the other circuits.   Id.  at                                                                  __            1398  n.6  (collecting cases).    See also  United  States v.                                              ___ ____  ______________            Lamare,  711  F.2d  3, 5  (1st  Cir.  1983)  (under former               ______            922(h)(1),  "receipt" of the firearm may  be shown by proving            possession; possession can be actual or constructive).                      Rogers argues that   922(g)  is unconstitutional as            applied to  him because  the government "neither  alleged nor            attempted to prove any  fact concerning possession other than            ownership of the firearm."  It allegedly ignored the question            _________            of  intent  to control.    In  fact, the  government  offered            Rogers'  own statement  that he  intended to  use his  gun to            commit suicide if the police were to find him.                      Rogers  also  argues that  18  U.S.C.    922(g)  is            unconstitutionally vague  to  the extent  that it  proscribes            constructive possession.   He notes that  some courts require            proof  of the  defendant's  "dominion and  control" over  the            firearm,  see,  e.g.,  Wight,   968  F.2d  at  1398;  others,                      ___   ____   _____            "dominion or control," see,  e.g., United States v. McKnight,                      __           ___   ____  _____________    ________            953 F.2d 898, 901  (5th Cir.), cert. denied, 112  S. Ct. 2975                                           _____ ______            (1992) (emphasis added).   Still others consider ownership of            the firearm either "irrelevant to possession,"  United States                                                            _____________            v. Boykin, 986 F.2d 270, 274 (8th Cir.), cert. denied, 114 S.               ______                                _____ ______            Ct.  241 (1993),  or virtually  conclusive, United  States v.                                                        ______________                                         -5-                                          5            Barron-Rivera,  922  F.2d 549,  552 (9th  Cir. 1991).   These            _____________            inconsistencies,  Rogers argues, leave  him with insufficient            notice of the conduct that is criminally proscribed.                      Because "dominion," "control," and  "ownership" are            overlapping concepts, it is not surprising that some judicial            glosses  upon "possession"  may  seem facially  inconsistent.            These differences do  not, however, make  the language of  18            U.S.C.   922(g) unconstitutionally vague.  We  think that the            term "possession" concretely describes the conduct proscribed            by  the statute.2  More than a  few laws would be in jeopardy            if absolute consistency  of judicial interpretation  were the            measure of a law's constitutionality.                        B.  The Sufficiency of the Indictment                      B.  The Sufficiency of the Indictment                      Rogers   argues  next   that  his   indictment  was            insufficient  because  it  failed  to set  forth  "any  facts                                                               ___            (except for an 'on or about' date) . .  . as to the charge of            having 'possessed'  the weapon . . . ."  On the contrary, the            indictment stated  the date of  the offense, the  district in            which  it occurred, the make,  type and serial  number of the            firearm, the felony conviction underlying the charge, and the            citation of the  statute.  The indictment  provided a "plain,                                            ____________________            2.  Cf. Zavala Maldonado, 23  F.3d at 7 (the idea  underlying                ___ ________________            constructive  possession  is  "not  so  difficult  to  grasp.            Courts are saying that one can possess an  object while it is            hidden at home in a bureau drawer, or while held by an agent,            or even while it is secured in a safe deposit box at the bank            . . . .").                                         -6-                                          6            concise and definite written statement of the essential facts            constituting the offense charged."  Fed. R. Crim. P. 7(c)(1).            No  more was  required  to "fairly  inform[]"  Rogers of  the            possession  charge, "and  [to] enable[] him  to enter  a plea            without fear of  double jeopardy."  United  States v. Yefsky,                                                ______________    ______            994 F.2d 885, 893  (1st Cir. 1993) (citing Hamling  v. United                                                       _______     ______            States, 418 U.S. 87, 117 (1974)).3            ______                      C.  The Jury Instructions                      C.  The Jury Instructions                      Rogers   argues   that   the    jury   instructions            incorrectly  defined  "possession"  in  terms  of  ownership.            Because  defense counsel  did not  object  on this  basis, we            review the instructions only for  plain error.  United States                                                            _____________            v. Burns, 15 F.3d 211, 217 (1st Cir. 1994).               _____                      "'Constructive' possession is  commonly defined  as            the power and intention to exercise control, or  dominion and            control, over  an object  not in one's  'actual' possession."            Zavala Maldonado, 23 F.3d at 7.  The district court explained            ________________            possession as follows:                      The term  "possess" as used in [  922(g)]                      is  not  necessarily  equated with  legal                      _________________________________________                      ownership  of the firearm  here at issue.                      _________                      The   law   recognizes   two   kinds   of                      possession,    actual   possession    and                      constructive  possession.   A  person who                      knowingly  has  direct  physical  control                                            ____________________            3.  Rogers also complains that the indictment did not specify            whether he actually or constructively possessed  the firearm.            As we  noted earlier, constructive possession  is possession,                                                           __            not  a separate predicate  act that has to be spelled  out in            the indictment.                                         -7-                                          7                      over a thing at a given time is then said                      to be in actual possession of that thing.                      A  person  who,  although  not  in actual                      possession, knowingly has both  the power                                  _____________________________                      and  the intention  at  a given  time  to                      __________________                     __                      exercise  dominion  or  control   over  a                      _______________________________                      thing, or to exercise dominion or control                      over  the  area in  which  that  thing is                      found,   whether   directly  or   through                      another person, is  then in  constructive                      possession of the thing [emphasis added].                      We  discern  no error  in  this  explanation.   The            instructions correctly stated  that ownership is relevant  to            the question of possession.  To be sure, ownership alone does            not establish possession, but it may be highly relevant where            the  authority to exercise  control is disputed.   Cf. United                                                               ___ ______            States v. Ocampo-Guarin, 968 F.2d  1406, 1410 (1st Cir. 1992)            ______    _____________            (finding possession  of cocaine  where drug  courier "carried            baggage  claim tickets  that represented  her legal  right to            reclaim [her] luggage").4                      Rogers also complains that the district  court used            the  conjunction  "or"  rather  than "and"  --  "dominion  or                                                                       __            control."     Dominion,  however,  is  generally  defined  as            "perfect  control  in  right  of  ownership."    Black's  Law                      _______                                ____________            Dictionary  436 (5th ed. 1979) (emphasis added).  Pursuant to            __________                                            ____________________            4.  We think that the blanket  statement in Boykin, 986  F.2d                                                        ______            at 274, that "ownership is irrelevant to possession," must be            considered  in  context.   In  Boykin,  the defendant's  wife                                           ______            claimed  that  she owned  the  firearm.   Had  the  defendant            himself  owned   the  firearm,  the  court   would  not  have            considered  that fact  irrelevant.    See id.  ("Constructive                                                  ___ ___            possession  . .  . is  established if  the person  has .  . .            control, ownership, or dominion over the firearm itself").                                         -8-                                          8            the court's instruction, there  could have been no conviction            absent a finding of control.5                      Rogers   argues  next   that  the   district  court            committed  plain error  by  giving only  a general  unanimity            instruction, and no specific  unanimity instruction.   During            its  deliberations, the  jury  sent a  note  to the  district            judge:  "We  would like  clarification  of the  two  types of            possession."  The court  repeated its original instruction on            possession, and this exchange took place:                           THE  COURT:   Does that  answer your                      question,  ladies  and  gentlemen?     It                      doesn't?   That's  the law on  actual and                      constructive possession.   You're shaking                      your head, sir.  What's the problem?                           MR.   ROWELL:     Interpretation  of                      constructive  possession.    If you  know                      where something is do  you constructively                      possess it?                           THE   COURT:    I   can't  give  you                      anything more than  what I've given  you.                      That's what  the law  says.   Sorry about                      that.  Anything further?  Thank you.                                            ____________________            5.  At times, we  have used the  conjunctions "and" and  "or"            interchangeably.   Compare United States v.  Latham, 874 F.2d                               _______ _____________     ______            852,  861  (1st  Cir. 1989)  ("constructive  possession  [is]            defined as  exercising dominion, or control over  the drug to            be distributed"), with Wight, 968 F.2d at 1398 ("dominion and                              ____ _____            control").   See also United States v. Acevedo, 842 F.2d 502,                         ___ ____ _____________    _______            507  (1st  Cir. 1988)  (quoting,  with  approval, the  phrase            "dominion or  control" from jury  instructions).   We see  no            real contradiction so long as the term "dominion" is properly            understood as encompassing control.                                         -9-                                          9                      Although the district court might have attempted to            refine its  explanation,6  it was  not  required to  give  an            instruction on  specific unanimity  at this point.   Congress            did not  define possession in terms of  alternative acts, any            one of which  would suffice for a conviction.  Thus, the one-            count indictment  in this case  had no  inherent tendency  to            produce a patchwork  verdict.  Cf.  United States v.  Antonio                                           ___  _____________     _______            Medina Puerta, No. 93-2167, slip op. at 16 (1st Cir. Oct. 21,            _____________            1994) (noting threat of non-unanimous verdict where divergent            conduct underlay two branches of a single count).  Unlike the            jury in United  States v.  Duncan, 850 F.2d  1104, 1109  (6th                    ______________     ______            Cir.  1988), which asked whether it  must agree as to each of            the  alternative acts  underlying the  offense, the  juror in            this case  simply asked for clarification  of possession, the            one  act necessary  for conviction.   We see  no threat  of a            patchwork verdict beyond the possibility, conceivably present            in  every  case, that  a juror  may  not have  understood the            court's explanation of the law.                      D.  The un-Mirandized Statement                      D.  The un-Mirandized Statement                      Rogers argues  that  the district  court  committed            plain error in  admitting evidence of his  statement, made in                                            ____________________            6.  In Zavala Maldonado, 23  F.3d at 7, we noted  that "[t]he                   ________________            'constructive possession' label may confuse jurors at first -            - drug trial juries  routinely ask to be reinstructed  on the            definition  of possession -- but the underlying idea is . . .            not so difficult to grasp."                                         -10-                                          10            the  bedroom of the apartment,  that he would  have blown his            brains out had he been able to reach his gun.                      After  taking  Rogers  into custody,  the  officers            waited approximately  ten minutes for the  arrival of another            officer who could positively identify  the defendant.  In the            meantime, they asked Rogers who he was.  There is no evidence            that  the officers asked Rogers  for more than  his name, cf.                                                                      ___            United States v.  Doe, 878  F.2d 1546, 1551  (1st Cir.  1989)            _____________     ___            ("[a]ssuming  the  existence  of  a  Miranda  exception"  for                                                 _______            routine  booking interrogation),  or  that his  statement was            anything  but  voluntary and  spontaneous.   Accordingly,  we            cannot find plain error.                      E.  The Sufficiency of the Evidence                      E.  The Sufficiency of the Evidence                      Rogers argues  that  the evidence  of  constructive            possession was  insufficient to  support his conviction.   In            making  this   argument,  he  bears  "the   heavy  burden  of            demonstrating that no reasonable  jury could have found [him]            guilty  beyond  a  reasonable   doubt."    United  States  v.                                                       ______________            Innamorati, 996 F.2d 456,  469 (1st Cir.), cert.  denied, 114            __________                                 _____  ______            S. Ct.  409 (1993).  We review the evidence in the light most            favorable   to  the   government,   "drawing  all   plausible            inferences  in  its  favor  and   resolving  all  credibility            determinations in line with the jury's verdict."  Id.                                                              ___                      The government's case  for constructive  possession            rested  on  (1) Rogers'  declaration  that if  he  could have                                         -11-                                          11            gotten  to his gun in the  apartment, he would have blown his            brains out;  (2) his admission that he owned the gun; and (3)            the bullet found in his pocket,  which matched the gun.  This            evidentiary tripod  is sufficient to establish  power as well                                                            _____            as  intent to  exercise dominion  and control  over the  gun.                ______            That  Rogers did not shoot himself  simply illustrates a fact            of constructive possession:   power and intent to act  do not            always result in action.                      When the officers arrived at the  apartment, Rogers            hid in the closet  of the northeast bedroom rather  than move            toward the  gun  in  the  northwest  bedroom.    One  officer            testified  that once  the  front door  to  the apartment  was            opened, it was  possible to see  someone entering or  leaving            any of the bedrooms.  The jury could have reasonably believed            that Rogers did not try to  reach the gun because he hoped to            escape detection.                      F.  Evidence of Other Crimes                      F.  Evidence of Other Crimes                      Rogers  assigns  plain error  in  the admission  of            evidence  of  several  of  his  prior   crimes.    On  direct            examination,  Rogers   freely  admitted  that  he   had  been            convicted of burglary "[m]any times."  Dissatisfied, perhaps,            with  his sanguine  answer, the  government inquired  into at            least  six of  Rogers' burglaries.   In  most instances,  the            government   asked  about   the   underlying  crime   without                                         -12-                                          12            establishing a conviction.   See Fed. R. Evid. 609(a).7   The                                         ___            following exchange is typical:                           Q:  Isn't it a fact that on or about                      July   29th,   1986  in   Manchester  you                      purposefully  entered a  building housing                      the Queen City  Farms, broke  into it  to                      steal property?                           A:  I did, sir.                           Q:  Isn't it a fact that on or about                      July 29th, 1986 in Manchester you entered                      the  Sunoco Service Station  at 229 Queen                      City Avenue, Manchester, broke into it in                      order to steal property?                           A:  I did, sir.                      The government argues  that the strictures  of Rule            609 do not apply because it was simply trying  to correct the            defendant's own  testimony.8  Cf. United States  v. Brooke, 4                                          ___ _____________     ______            F.3d 1480,  1488 n.10 (9th Cir. 1993) (Rule 609 "does not . .            . address or  resolve the admissibility of  cross-examination            regarding  arrests," as opposed to convictions, "particularly                                            ____________________            7.  Rule 609(a) provides in relevant part:   "For the purpose            of attacking the credibility of a witness . . . evidence that            an accused has been convicted of [a crime punishable by death                                _________            or imprisonment in  excess of  one year under  the law  under            which the accused  was convicted]  shall be  admitted if  the            court determines  that the probative value  of admitting this            evidence outweighs  its  prejudicial effect  to the  accused"            (emphasis added).            8.  The  government does  not  contend that  the evidence  of            Rogers' criminal conduct was  properly admitted under Fed. R.            Evid.  608(b),  which   provides,  in  relevant  part,   that            "[s]pecific instances of the conduct of a witness . . . may .            .  .  in  the  discretion  of  the  court,  if  probative  of            truthfulness or  untruthfulness, be  inquired into  on cross-            examination  of the  witness .  .  . concerning  the witness'            character for truthfulness or untruthfulness[.]"                                           -13-                                          13            where such questions do not relate to general credibility but            to  specific information  elicited  on direct").   On  direct            examination, Rogers falsely stated that he had been offered a            plea bargain for the case then being tried.  He also admitted            that he had misled  police officers during his interrogation.            Rogers  did  not,  however,  attempt to  "explain  away"  his                         ___            burglary convictions,  see United States v.  Robinson, 8 F.3d                                   ___ _____________     ________            398, 411 (7th Cir. 1993) (even an assertion of innocence does            not  rise to level of "explaining away" the conviction).  Nor            did he otherwise "equivocate[] in a self-serving manner" with                                                                     ____            respect  to   those  convictions,   see   United  States   v.            ________________________________    ___   ______________            Watchmaker,  761  F.2d 1459,  1474  (11th  Cir. 1985),  cert.            __________                                              _____            denied,  474 U.S. 1100 (1986).  Accordingly, this part of the            ______            government's  cross-   examination  relates  only to  Rogers'            general  credibility,  and  any  impeachment by  evidence  of            convictions should  have  been conducted  in accordance  with            Rule 609(a).                      Even  if  the government  had  established all  six            convictions,  it   is  unclear  whether  the  district  court            "determine[d]  that the  probative  value  of admitting  this            evidence outweigh[ed] its prejudicial effect to the accused."            See Rule 609(a)(1).   During  Rogers' cross-examination,  the            ___            district  court  instructed  Rogers  to  answer   a  question                                         -14-                                          14            regarding the burglaries  at Louisa's:9   "That goes to  your            credibility  and under  the  Federal Rules  of Evidence  he's            entitled to inquire as to any crime you committed in the last                                      ___            ten  years" (emphasis  added).10  This  categorical statement            suggests that  the district court  may have failed  to assess            the  prejudicial effect  of the  evidence of  each conviction            under Rule 609(a)(1).11                      We nonetheless hold that it was not plain error for            the  district   court  to  admit  the   evidence  of  Rogers'            burglaries.  Under Rule  609, we think that at  least five of            the  burglary convictions  would have  been admissible.   The            sixth,  the sole  documented  conviction,  presents  a  close            question  because a  firearm  was  one  of the  stolen  items            recovered from the defendant.   But even if the  admission of            the  sixth conviction were a "clear"  or "obvious" error that            affected "substantial rights," we doubt that it resulted in a                                            ____________________            9.  As we  explain infra, this part  of the cross-examination                               _____            was  properly admitted  (albeit  for reasons  different  from            those given by the district court).            10.  Rule 609(b) provides in part:  "Evidence of a conviction            under this rule  is not admissible if  a period of  more than            ten years  has elapsed since the date of the conviction . . .            ."            11.  Cf.  United States v. Tavares, 21 F.3d 1 (1st Cir. 1994)                 ___  _____________    _______            (en  banc)  (where  defendant   is  charged  as  a  felon-in-            possession in  violation of 18  U.S.C.   922(g),  evidence of            the  nature of  the  predicate conviction  is not  admissible            unless  the  trial  court  identifies  special  circumstances            establishing   that  the   relevance  of   the  evidence   is            "sufficiently  compelling to  survive  the balancing  test of            Fed. R. Evid. 403").                                         -15-                                          15            "miscarriage  of  justice"   such  as   "the  conviction   or            sentencing of an actually innocent defendant."  United States                                                            _____________            v. De  Masi, No. 92-2062, slip  op. at 28 (1st  Cir. Oct. 26,               ________            1994) (quoting United States v. Olano, 113 S. Ct. 1770, 1776-                           _____________    _____            79 (1993)) (defining plain error).                      G.  Prosecutorial Misconduct                      G.  Prosecutorial Misconduct                      Rogers  argues  that the  district  court committed            plain  error  by  permitting  various  instances  of  alleged            prosecutorial misconduct.    Commenting on  the  evidence  of            Rogers'  burglaries, the  prosecutor  stated that  he had  to            "pull  the documented facts out of" Rogers, for Rogers "won't            even admit to some of the cases we have certified convictions            of."   The  prosecutor  also  invited  the jury  to  "imagine            [Rogers] walking around  with a loaded gun[.]"   Finally, the            prosecutor   "submit[ted]   that  [the   defendant's]  entire            testimony was riddled with lies and evasions":  the defendant            "testified and  fabricated his entire  testimony right before            you."                      Although   we  are  troubled  by  the  prosecutor's            rhetoric -- "walking around with a loaded gun" implies actual            possession, which  was not  proved --  and by  the pejorative            comments upon evidence that may have been improperly elicited            in the first  place, cf.  Brooke, 4 F.3d  at 1488  (continued                                 ___  ______            references  to  erroneously-admitted   evidence  in   closing            arguments  may  make error  harmful),  we do  not  find plain                                         -16-                                          16            error.    There  was simply  no  "'cumulative  evidence of  a            proceeding dominated  by  passion and  prejudice,'"    United                                                                   ______            States  v. Capone, 683 F.2d 582, 586 (1st Cir. 1982) (quoting            ______     ______            United  States v.  Socony-Vacuum Oil Co.,  310 U.S.  150, 240            ______________     _____________________            (1940)).                        H.  Hearsay Evidence                      H.  Hearsay Evidence                      Rogers  argues that  it  was plain  error to  admit            police testimony suggesting that he may have been armed:                           We   told   [the   tenant   of   the                      apartment] . . .  [w]e were there looking                      for Scott Rogers  and the information  we                      had was  that he  was in  this apartment,                      and that we had also had information that                      he  may be  armed and  that we  wanted to                      _________________                      come in and look for him, and that if too                      much  hesitation  went on  somebody could                                                 ______________                      get hurt due to the fact that we felt  he                      _________________________________________                      was armed [emphasis added].                      _________            Another  officer  testified that  he  was  dispatched to  the            apartment "because  we had information that  Scott Rogers was            at  the address and  that he  was possibly  armed .  . .  ."             Rogers argues that these statements were hearsay going to the            issue of possession, the only disputed element in the case.                      By  its  silence,  the  government  has  apparently            conceded that the  statements were hearsay not covered by any            exception.   The  hearsay did  not affirmatively  assert that            Rogers  was  armed --  only that  he "may  be" armed,  or was            "possibly  armed."    Moreover,   in  light  of  Rogers'  two            statements of  intent  to use  his  gun, which  were  virtual                                         -17-                                          17            confessions  on the  element of  possession, the  hearsay had            only a cumulative effect.  We find no plain error.                      I.  Rebuttal Testimony                      I.  Rebuttal Testimony                      Rogers argues that it was plain error to admit  the            government's rebuttal testimony regarding his  confessions at            the police station.   On direct examination, Rogers testified            that he was under pressure to confess to "all these different            cases," and that he  "made up [a] story" about  breaking into            the Sub Hut restaurant.   On cross-examination, Rogers stated            that he had been questioned about two burglaries at Louisa's,            but  denied that he  had confessed to  breaking into Louisa's            and taking the safes.                      The  government  called Sergeant  Jaskolka,  one of            Rogers'  interrogators,  as  a rebuttal  witness.    Jaskolka            affirmed  precisely  what   Rogers  had   denied  on   cross-            examination,  to  wit,  Rogers  in  fact  confessed  to  both            burglaries at Louisa's.   Not only was there no  plain error,            this rebuttal testimony was entirely proper.                      J.  Self-incrimination                      J.  Self-incrimination                      Rogers argues  that  the district  court  committed            reversible  error by  instructing  him, over  his attempt  to            "plead the Fifth," to answer a question about the  burglaries            at Louisa's.    On cross-examination,  the prosecutor  asked:            "How would you know how much was taken out [of the safes from            Louisa's]?"   Rogers' counsel objected  only on the ground of                                         -18-                                          18            relevance.  Accordingly, we  review the instruction to answer            only for  plain error -- and find none.  Rogers certainly did            not incriminate himself with  respect to the charged offense.            Moreover, the government was entitled to ask the question  it            did  because Rogers first denied that he had confessed to the            burglaries,  and then  -- somewhat  inconsistently --  stated            that he  "was  asked how  much  money was  taken  out of  the            safes."  See United  States v. Concemi, 957 F.2d  942, 947-48                     ___ ______________    _______            (1st  Cir. 1992)  (quoting Brown  v. United States,  356 U.S.                                       _____     _____________            148, 154-55 (1958)) (the credibility of a testifying criminal            defendant "may  be impeached and his  testimony assailed like            that  of any other witness, and  the breadth of his waiver is            determined by the scope of relevant cross-examination").                      K.  The Motion for New Trial                      K.  The Motion for New Trial                      On  June 20,  1990, more  than a  month and  a half            after  the verdict, Rogers filed a motion for new trial under            Fed. R. Crim. P. 33, alleging that the government had wrongly            withheld a possessed property report (PPR) showing that a box            of  .32 caliber bullets had been seized from the apartment at            5  Wheelock Street.  We review the district court's denial of            the  motion for  a new  trial only  for abuse  of discretion.            United States v. Nickens, 955 F.2d 112, 116 (1st Cir.), cert.            _____________    _______                                _____            denied, 113 S. Ct. 108 (1992).            ______                      The district  court found  the evidence of  the PPR            immaterial  because, in  the  context of  the entire  record,                                         -19-                                          19            there  is "no reasonable doubt about guilt whether or not the            [PPR]  is considered."  July  13, 1990 Order  at 4-5 (quoting            United  States v.  Agurs, 427  U.S. 97,  112-13 (1976)).   We            ______________     _____            agree  that the PPR was  not itself material  evidence.  "The            evidence  is   material  only   if  there  is   a  reasonable            probability  that, had  the  evidence been  disclosed to  the            defense,  the  result  of  the  proceeding  would  have  been            different."   United  States v.  Bagley,  473 U.S.  667,  682                          ______________     ______            (1985).   The decisive issue at trial was possession, not how            many rounds of ammunition  were seized by the police.   There            is  no  reasonable probability  that  the  report would  have            changed the jury's verdict.12                      We,   however,   are  gravely   concerned   by  the            government's  "use" of  the report  at trial.   Although  the            government  did  not introduce  the  report  as evidence,  it            apparently took advantage of its absence from the evidence to                                             _______            discredit  Rogers.   On  cross-examination, the  officer  who            searched the apartment after  Rogers' arrest failed to recall            "any ammunition . . . being specifically taken."  When Rogers            testified that the bullet found in his own pocket came from a            box  of  fifty that  Glennon  carried  around with  him,  the            prosecutor insinuated that there were no other bullets:                                            ____________________            12.  Moreover, the motion for new trial failed to allege that            the  report was evidence newly discovered  after trial -- the                                                       _____            only ground  upon which  the motion could  have been  timely.            See Fed. R. Crim. P. 33.            ___                                         -20-                                          20                      Q.   You   were   here  when   the  other                      officers testified; right?                      A.   Yes, sir.                      Q.   You didn't hear them saying anything                      about a box of bullets; right?                      A.   No, I didn't.                      Q.   There  was just  -- the  only bullet                      that  they  found  was  the  one  in your                      pocket; right?                      A.   Supposedly.            Rogers  then  referred  to  the  possessed  property  report,            which he believed would have corroborated his story:                      Supposedly that was the only  bullet that                      was in the apartment  . . . . In  fact, I                      know there was  a box of 50  that was for                      the wrong gun . . . . [H]e [Glennon] went                      out and  he had bought another  box of 50                      and they  were sitting right  by the gun.                      Your guess is as  good as mine where they                      went.  I've  asked the Police  Department                      to  produce a  copy  of the  computerized                      stuff  what they  says they  removed from                      the apartment  and I have not  got it yet                      and it's been over a year.            The  prosecutor responded:  "So  the police stole  the box of            bullets?"   And, a moment later:  "So the police are covering            it up then."   The implication is that Rogers  had fabricated            testimony of a police  cover-up.  Even if the  prosecutor had            been ignorant of the report at trial, we would still find his            conduct inexcusably  negligent.   We decline to  reverse only            because  the report  and the  box of  bullets are  simply not            material to the issue of possession, and the isolated, though            improper, cross-examination on  a peripheral  matter was  not                                                                      ___                                         -21-                                          21            "likely to have affected the trial's outcome."  United States                                                            _____________            v. Manning, 23 F.3d 570, 575 (1st Cir. 1994).13               _______                                            ____________________            13.  Absent harmful  error,  we cannot  use  our  supervisory            power  to deter future prosecutorial misconduct.   Id. at 574                                                               ___            n.2 (citing  United  States v.  Hasting,  461 U.S.  499,  506                         ______________     _______            (1983)).                                         -22-                                          22                      L.  Ineffective Assistance of Counsel                      L.  Ineffective Assistance of Counsel                      At  sentencing, Rogers  filed  a pro  se motion  to                                                       ___  __            dismiss counsel,  alleging the denial of  his Sixth Amendment            right  to effective  assistance of  counsel, and  seeking new            counsel  for sentencing.    Rogers  complained  that  certain            witnesses had not been subpoenaed to testify on his behalf at            trial.  The  district court  denied the motion.   It  stated:            "I'm going to, for  the benefit of the Court of Appeals, find            and  rule as a  matter of  law that  [counsel] was  more than            effective   within   the    meaning   of   Strickland    [v.]                                                       __________            Washington[,]"  466 U.S. 668 (1984).  Rogers not only appeals            __________            the denial of  the motion  to dismiss counsel,  which he  now            construes as a motion for new trial, but also argues that the            record  is sufficient  to show  that he  received ineffective            assistance of counsel.14                      The motion to dismiss counsel was  correctly denied            for  the  reason stated  by the  district  court.   On direct            appeal, we will resolve a claim of ineffective assistance not            raised  in the district court only if the "critical facts are            not in  dispute and a sufficiently  developed record exists."            United States v. Daniels,  3 F.3d 25, 26-27 (1st  Cir. 1993).            _____________    _______            We do so here.  From the record and the  undisputed facts, it                                            ____________________            14.  Rogers  asks  us  to  reach  his  claim  of  ineffective            assistance "[w]ithout prejudice to his right to later present            the issue to the  district court if  necessary . .  . ."   We            will assume that his pro se motion to dismiss counsel did not                                 ___ __            already raise this claim in the district court.                                         -23-                                          23            is clear that defense counsel should have objected to certain            parts of  the police testimony and to some of the evidence of            Rogers' prior  crimes.   It is  equally clear,  however, that            counsel's  performance was not so woeful as to fall below the            constitutional  norm  of Strickland.    The  failure to  make                                     __________            certain evidentiary  objections did not strip  Rogers of "the            very means  that are  essential to subject  the prosecution's            case to adversarial testing."  Scarpa v. Dubois, No. 93-1795,                                           ______    ______            slip op. at 17  (1st Cir. Oct. 18, 1994)  (citing Strickland,                                                              __________            466  U.S.  at  688).     Moreover,  we  see   no  "reasonable            probability  that, but  for counsel's  unprofessional errors,            the  result of  the  proceeding would  have been  different."            Strickland, 466 U.S. at 694.            __________                      Affirmed.                      Affirmed.                      _________                                         -24-                                          24
