                  Not for Publication in West’s Federal Reporter -
                  Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

              United States Court of Appeals
                           For the First Circuit


No. 02-1811

                         UNITED STATES OF AMERICA,

                                    Appellee,

                                         v.

                                 CHARLIE WEBB,

                            Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. William G. Young, U.S. District Judge]


                                      Before

                            Selya, Circuit Judge,

              Coffin and Porfilio,* Senior Circuit Judges.


     Syrie Fried, Assistant Federal Public Defender for appellant.
     John T. McNeil, Assistant Attorney General, with whom Dina
Michael Chaitowitz, Assistant Attorney General, was on the brief
for the United States.


                                 June 17, 2003




     *
         Of the Tenth Circuit, sitting by designation.
            PORFILIO,       Senior    Circuit    Judge.     Charlie      Webb   was

convicted by a jury of being a felon in possession of a firearm and

sentenced to a term of 288 months.                 His appeal presents three

issues relating to the district court’s discretionary questioning

of the venire and instruction of the jury.                 Finding no abuse of

discretion, we affirm.

            Responding to a call about a disturbance at the Orchard

Park   housing    project     in     Boston,    Officers   Lewis   and    McCarthy

observed a man and a woman, whom they later discovered were

Defendant     Webb    and    Eugenia     Gillenwater,      standing      near   the

intersection of Zeigler Street and Wheatly Way.                The couple seemed

to be arguing, so Officer McCarthy turned the police vehicle around

and stopped, pointing the headlights directly on Webb and Ms.

Gillenwater.

            Officer McCarthy got out of the vehicle and walked toward

Defendant.     As he neared, Officer McCarthy noticed Webb holding a

large,   shiny,      silver-colored      metallic    object.       Continuing    to

approach, McCarthy saw Webb look at him, turn towards Gillenwater,

and drop the object into the front of her pants.               Although Officer

Lewis’ view was somewhat obscured, he also saw Webb turn to

Gillenwater and motion with both his hands toward her waist.

             Even though the events occurred after dark, the scene was

well-lighted by an overhead street lamp as well as other ambient




                                        -2-
light from the complex.       Most of the illumination, however, was

provided by the headlights of the officers’ vehicle.

            Officer     McCarthy    seized    Webb,     and   Officer    Lewis

approached     Gillenwater and removed a loaded 9mm semi-automatic

pistol from her waistband.         Both were then placed under arrest.

            At trial, Ms. Gillenwater, telling a more robust story,

testified she felt Webb place a heavy object in the front of her

pants after she noticed McCarthy heading toward her and Webb.                She

also stated that when she tried to warn Webb before the officers’

vehicle stopped, he said, “f*** them polices.[sic]              If they come

over here I’ll shoot them bitches.”

             The defense vigorously cross-examined the officers over

a suggested discrepancy between their testimony and their written

report.    The officers testified the encounter was under the street

lamp at 117 Zeigler, but the report stated it occurred in front of

111 Zeigler.        Defendant suggested the change occurred when the

officers discovered the street lamp was at 117.               They explained,

however, they took no contemporaneous notes at the scene, and

Officer McCarthy was unable to account for why he wrote 111 and not

117.    The only testimony on Defendant’s behalf came from two women

whose     evident   purpose   was    to    impeach    the   veracity    of   Ms.

Gillenwater.




                                     -3-
            I.   VOIR DIRE ON ATTITUDES TOWARD BLACKS

          Defendant argues the district court refused to ask the

venire a question about possible bias.   Counsel requested that the

court inquire:

          The defendant in this case is black/African
          American.

          Does the fact that he is black make you think
          it is more likely that he is guilty of the
          crime he is charged with here today?

The court declined, relying instead upon less specific questions

crafted to solicit responses indicating wider potential bias.   For

example, the court asked,

          Are any of you sensible of any bias or
          prejudice whatsoever with respect to the case
          to be tried? Do any of you know any reason why
          you do not stand indifferent to this case?

          Do any of you know any reason why you ought not
          be called to sit as jurors in this case?

          Although the court directed all the parties to stand at

the outset of voir dire and the prospective jurors were aware

Defendant is black, he contends these measures were insufficient.

Because two of the three government witnesses were white, counsel

argues the court’s refusal to ask the specific question about racial

bias resulted in Defendant’s inability to determine whether racial

prejudice would affect the jury.   Thus, Defendant was left without

an adequate basis upon which to exercise his peremptories and

challenges for cause.



                                -4-
          Defendant    first    relies    upon   Rosales-Lopez   v.   United

States, 451 U.S. 182, 190-91 (1981), in which the Court instructed,

          In the federal court system, we have indicated
          that under our supervisory authority over the
          federal courts, we would require questions
          directed to the discovery of racial prejudice
          be asked in certain circumstances in which such
          an inquiry is not constitutionally mandated.

(citation omitted).    He cites other cases relating to the proper

role of voir dire in removing prospective jurors who will not be

able to be impartial and the necessity to uncover biases that would

justify their exclusion.       He adds, in this case, questioning about

racial bias was necessary to accomplish the task. Indeed, there was

a potential for white against black bias in Gillenwater’s testimony

indicating “a threat of violent conduct by a black man directed

against white police officers.”

          The government responds the court did not err because its

“inquiry probed potential racial and other prejudice in a manner at

least as likely to reveal such bias or prejudice as would the

question about race that Webb had requested to be asked at voir

dire.”   The prosecution maintains that the venire, which had been

introduced to Webb at the outset, could see he is black.          Thus, the

government   urges,   the   court’s   questions    about   any   prejudice,

“coupled with its instruction that members of the venire should

answer in the affirmative even if they ‘may’ or ‘might’ harbor such

prejudice, were more than sufficient to probe the racial animus of

potential jurors,” citing United States v. Brown, 938 F.2d 1482,

                                    -5-
1485-86 (1st Cir. 1991)(the mere fact a defendant is black does not

trigger a need for a special question).             The court’s repeated

general questions about possible bias and its instruction to respond

if there was a possibility of bias in a potential juror’s mind were

sufficient, the government argues.          After all, it notes, as the

Court observed in Rosales-Lopez, there is “little reason to believe”

a potential juror who did not respond to a general question on

possible bias “would have answered affirmatively a question directed

narrowly at racial prejudice.”       451 U.S. at 193 n.8.

            This issue must be judged under an abuse of discretion

standard in which trial courts are given wide latitude.           Brown, 938

F.2d at 1485. “The trial judge’s function at this point in the trial

is . . . to reach conclusions as to impartiality and credibility by

relying on their own evaluations of demeanor, evidence and responses

to questions.”     Rosales-Lopez, 451 U.S. at 188 (citations omitted).

Therefore, a reviewing court, in recognition of this role, confers

great   latitude    upon   the   trial    judge’s   choice   of   questions.

Moreover,

            “[a]buse of discretion” is a phrase which
            sounds worse than it really is. All it need
            mean is that, when judicial action is taken in
            a discretionary matter, such action cannot be
            set aside by a reviewing court unless it has a
            definite and firm conviction that the court
            below committed a clear error of judgment in
            the conclusion it reached upon a weighing of
            the relevant factors.




                                    -6-
Schubert      v.   Nissan   Motor   Corp,      148    F.3d    25,    30    (1st   Cir.

1998)(quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)).

Judged in this light, we are hard pressed to find any abuse of

discretion here.      As the Supreme Court has instructed:

              In our judgment, it is usually best to allow
              the defendant to resolve this conflict by
              making the determination of whether or not he
              would prefer to have the inquiry into racial
              or ethnic prejudice pursued. Failure to honor
              his request, however, will be reversible error
              only where the circumstances of the case
              indicate   that   there    is   a   reasonable
              possibility that racial or ethnic prejudice
              might have influenced the jury.

Rosales-Lopez, 451 U.S. at 191 (footnote omitted).

              Nevertheless, we recognize the importance of Mr. Webb’s

concern.       Doubtless, it was the district court’s motivation to

protect Defendant against possible racial contamination of the

jury’s      deliberations   by   suggestion.          Yet    it   was,    after    all,

Defendant’s obvious choice.          He must have assumed the potential

reward was worth the risk his question posed.                       The inquiry he

offered was appropriate and without an inflammatory purpose.                       Even

though it was not an abuse of discretion to refuse to ask that

question, the court could have asked it without harm.                      Brown, 938

F.2d   at    1485.    “[T]he     wiser    course     generally      is    to   propound

appropriate questions designed to identify racial prejudice if

requested by the defendant.”             Id. (quoting Ristaino v. Ross, 424

U.S. 589, 597 n.9 (1976)).



                                         -7-
                   II.   VOIR DIRE ON OFFICER CREDIBILITY

             Defendant postulates the district court erred by not

asking the venire this question:

             Police   officers   will  be  testifying   as
             witnesses in this case.   People who are not
             police officers will also be testifying in
             this case.     Would you be more likely to
             believe the testimony of a police officer
             simply because he or she is a police officer?

Defendant relies upon United States v. Victoria-Peguero, 920 F.2d 77

(1st Cir. 1990), to support his argument that the First Circuit,

like others, holds it is error for the trial judge to refuse to

question the venire about whether it would give extra credence to

law enforcement witnesses.         To make the determination of whether the

failure to inquire is reversible error, Defendant adds that courts

consider: (1) the importance of the law enforcement                    officer’s

testimony to the case as a whole; (2) the extent to which a venire

person’s     attitude    toward    law   enforcement    is   covered   in   other

questions on voir dire and the general charge; (3) the extent to

which the officer’s credibility is put to issue; and (4) the extent

to   which   the    officer   is    corroborated   by    other   non-officer’s

testimony.    In support, he cites United States v. Anagnos, 853 F.2d

1, 3 (1st Cir. 1988)(citing United States v. Baldwin, 607 F.2d 1295,

1297-98 (9th Cir. 1979)).

             Defendant contends the testimony of the arresting officers

was critical; indeed, he points out, the government argued to the

jury it could convict on that testimony alone.           Defendant asserts he

                                         -8-
vigorously sought to impeach the officers.             Specifically, he urges,

he   questioned   Officer    McCarthy’s      ability    to   see   an   object   in

Defendant’s hands which he claimed ended up in Ms. Gillenwater’s

clothing.   Defendant further focused his credibility attack on the

change in the address recorded from 111, where there was no street

lamp, to 117 Zeigler Street, where there was a street light.

Defendant exacuates the importance of Officer McCarthy’s testimony

by reminding that jurors sent a note asking whether the couple was

actually located under the lamppost.           Hence, he argues, “the court

did not specifically instruct the jury to treat the testimony of

police officers in the same way they would treat the testimony of

any other witness, nor did it caution them not to give extra

credence to their testimony. Indeed, the court’s final instructions

did not single out the testimony of the police officers for any

special mention at all.”

            The government responds the district court determined

whether any venire person had any connection with law enforcement.

For those who did, the court examined them at side-bar about their

potential for bias.         The government argues at least five circuit

courts have determined that this process sufficiently ferrets out

pro-law enforcement bias.           Moreover, this approach comports with

this   court’s    holding    that    when    law   enforcement     testimony     is

important to the government’s case, the district court “should

ordinarily inquire into whether prospective jurors are more likely



                                       -9-
to credit [police officers’] testimony.”       United States      v. Pappas,

639 F.2d 1, 4 (1st Cir. 1980).

            The government adds whether the failure to ask specific

questions is reversible error depends in part upon the extent to

which the credibility of the government agent’s testimony is put

into issue.    Id. at 5.    Here, the discrepancy between the officers’

testimony     and   the   written   report   was   irrelevant.       It   was

unquestioned that the encounter took place at the intersections of

Zeigler and Wheatly Way; but, more importantly, all agreed that the

lights from the police vehicle were shining directly on Defendant

and Ms. Gillenwater as the officers emerged.          Thus, the attempted

impeachment was based upon an insignificant discrepancy — whether

the parties were under the street light did not affect whether the

officers could observe Mr. Webb.       Finally, we are reminded, in its

general charge, the court instructed the jury to treat all witnesses

alike.

            The government’s position is well taken.             Once again,

judging this issue under the abuse of discretion standard, we find

no abuse.     Although the officers’ testimony was important, it was

corroborated by Ms. Gillenwater.       Moreover, the attempt to impeach

them fell short of a critical evidentiary issue.       Judged in light of

the entire record, the variance between the address stated in the

testimony and that included in the written report did not suggest

the officers were not credible.       Finally, the jury was told in the


                                    -10-
general charge that the testimony of one witness was not entitled to

greater credibility than that of any other.

             The lack of abuse of discretion notwithstanding, we remain

curious why the court did not eliminate the issue at the outset.

The   court’s    method   of     probing    the   issue    was   certainly   more

complicated than simply asking the question proposed by the defense.

True enough, the court was able to discover persons who might have

harbored police bias.          After that discovery, the court pursued

questioning     which   probed    the   essence    of     disclosures   Defendant

sought. The court’s general charge was also sufficient to emphasize

the jury could not give the officers more credibility than it gave

to the remaining witnesses.         But, any doubt and an appellate issue

could have been eliminated by simply asking the question the defense

solicited.      A salutary result could also have been achieved.

             By asking the question, Defendant’s major concern could

have been alleviated.      He posits that a potential juror might have

been reared to respect police authority.            If so, that person might

believe because of their position, officers are entitled to greater

credibility than others.         If the proposed question had been asked,

Defendant maintains, such a person could have been alerted to

explore   his     conscience     for    a   previously      unrecognized     bias.

Unfortunately, this sort of self-examination was not suggested by

any of the questions posed by the court.




                                        -11-
       III.     INSTRUCTION ON DEFENDANT’S RIGHT NOT TO TESTIFY

              Relying upon Carter v. Kentucky, 450 U.S. 288 (1981),

Defendant argues the district court erred by not instructing the

jury it should draw “no adverse inferences” against him because he

did not testify.      He declares counsel “requested that the jury be

charged   regarding    the   defendant’s    constitutional       right   not   to

testify.”     Admitting counsel did not use the language “no adverse

inference”     in   her   request   for     the    instruction,     Defendant,

nonetheless, insists he “adequately invoked his substantive right to

jury guidance.”

              The government puts it another way: “Webb never requested

the   ‘adverse      inference’   language     at    trial   in     any   form.”

Furthermore, even if the court’s failure to grant the instruction

Defendant desired was error, “the error was not plain, as it is

reflected in the fact that defense counsel was unable to articulate

the problem with the instructions when the court had completed

giving them.”

              In varying ways, the court instructed several times that

Defendant had no duty to take the stand and did not have to testify.

For example, part of the charge was:

              Mr. Webb started this case innocent . . .

              He has no obligation to explain anything or
              say anything or do anything.   He doesn’t have
              to take the stand.       He doesn’t have to
              testify.   And you cannot hold against him
              anything that wasn’t done.    That would turn
              the whole process on its head. The government

                                    -12-
           made this charge.    The government’s got to
           prove the charge beyond a reasonable doubt.

                                * * *

           First of all, there’s that great principle,
           and it is a great principle, that Mr. Webb
           started out the trial innocent. Just remember
           he didn’t have to do a single thing in this
           case. He can’t be brought in here and made to
           explain things he doesn’t have to . . . . you
           cannot ever hold it against him that he’s here
           in court.

           The government argues although the court did not use the

specific words, “no adverse inference,” the charge contained their

“functional equivalent.” More importantly, Defendant did not object

to the instructions as given, nor did counsel request a specific

instruction, suggesting only: “I think it’s appropriate that the

jury be instructed it’s the defendant’s right not to testify.”

           We believe this issue is foreclosed to Defendant by Fed.

R. Crim. P. 30.   Defendant’s failure to object to the instructions

given, stating “distinctly the matter to which that party objects

and the grounds of the objection,” precludes the assignment of

error. United States v. Arthurs, 73 F.3d 444, 447-48 (1st Cir.

1996).   Were this not so, we would still be constrained to conclude

the failure to respond directly to Defendant’s request was not

erroneous because the instructions as a whole certainly informed the

jury of Defendant’s right not to testify and that no inferences

could be drawn by the jury from his not doing so.   United States v.

Woodward, 149 F.3d 46, 68-69 (1st Cir. 1999).   Moreover, in light of



                                -13-
the   overwhelming   evidence   of   guilt,   Mr.   Webb   cannot   show   the

instructions given “seriously affect[ed] the fairness, integrity or

public reputation of the judicial proceedings.”            United States v.

Brand, 80 F.3d 560, 567 (1st Cir. 1996)(quoting United States v.

Olano, 507 U.S. 725, 736 (1993)).

           Affirmed.




                                     -14-
