
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1281                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                LAWRENCE G. SCHNEIDER,                                Defendant, Appellant.                                 ____________________            The  opinion  of this  court  issued  April  17,  1997, should  be        changed as follows:            Page  18,  line 9:    Change  the  word   inference   to the  word         interference.                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1281                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                LAWRENCE G. SCHNEIDER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Robert  B.  Mann with  whom  Mann  & Mitchell  was  on  brief  for            ________________             ________________        appellant.            Richard  W. Rose,  Assistant  United States  Attorney,  with  whom            ________________        Sheldon  Whitehouse,  United States  Attorney,  was on  brief  for the        ___________________        United States.                                 ____________________                                    April 17, 1997                                 ____________________                 BOUDIN, Circuit Judge.  Lawrence Schneider was convicted                         _____________            on  multiple counts of mail  and wire fraud  and now appeals,            presenting two  difficult issues.  One  concerns the district            court's refusal to allow Schneider's expert medical testimony            proffered  as  pertinent to  his  state  of mind;  the  other            relates  to the denial of Schneider's  new trial motion based            on jury-questionnaire  information about  one of  the jurors.            On  both issues, we  agree with the  district court's outcome            and affirm.                 What  Schneider did  was  largely undisputed  at  trial,            although  his  state  of  mind  was  very  much  in  dispute.            Schneider ran two businesses from  his home in Warwick, Rhode            Island,  engaged  in  buying  and  selling  real  estate  and            restoration of old houses.   In mid-1990, Schneider was under            financial  pressure and unable to pay his bills.  Starting in            May  1990 and continuing through  October 1990, he ordered on            credit a  variety of goods, including  computer equipment and            jewelry, the total value of which exceeded $200,000.                 Beginning  shortly thereafter, Schneider began to resell            the same goods and pocket  the money.  Between June 1990  and            October 1990,  Schneider placed 25  classified advertisements            in  the Providence  daily newspaper,  offering to  resell the            goods  in question  at deep  discounts.   He gave  purchasers            false  stories  about  the origin  of  the  goods  or how  he            acquired them.  Schneider paid nothing to his suppliers.  The            government  describes  this as  a classic  "bust-out" scheme.            See, e.g., United States v. DeVincent, 632 F.2d 147, 149 (1st            ___  ____  _____________    _________            Cir.), cert. denied, 449 U.S. 986 (1980).                   ____________                 In December  1994, Schneider  was  indicted and  charged            with six counts  of wire fraud and three counts of mail fraud            based on his  use of such  facilities in  the conduct of  his            scheme.  18 U.S.C.    1343, 1341.  The government's theory of            fraud  was that Schneider never intended to pay for the goods            but ordered them with  the aim of reselling them  immediately            and bilking the  sellers.  In  addition, the government  also            relied upon  an affirmative misstatement, made  on several of            Schneider's credit  applications, that  he had 35  employees,            which was untrue.                 Schneider did  not dispute the core  events described by            the government, but argued that he did not have the requisite            specific  intent  to defraud.   He  pointed  out that  he had            businesses,  a home and a good credit rating, so his behavior            made no sense  as a  rational criminal act;  it followed,  he            argues on  appeal, "that his behavior  is inexplicable absent            an  understanding  of the  defendant's  mental  status."   At            trial, he sought to introduce medical evidence to explain his            behavior.                 The  proffered evidence was  testimony from two doctors.            One was Dr. Wartenberg,  who specialized in internal medicine            and   addiction  medicine;   he  proposed  to   testify  that                                         -4-                                         -4-            Schneider's capacity and judgment were significantly impaired            by  misprescription  and  overprescription  of  medical drugs            during the  relevant period.   A psychiatrist, Dr.  Roth, was            also  prepared  to testify  to  impaired  judgment, based  on            chemical dependency and major depression with probable mania.            This testimony, of which  more will be said later,  was taken            as an offer of proof outside the presence of the jury.                 In  due  course,  the  district  judge  ruled  that  the            testimony would  not be admitted.  The court's explanation is            summed up in the final sentences of a longer oral ruling:                 It seems to  me that the evidence does  not suggest                 that the Defendant  did not act purposefully,  that                 to accept this  evidence as a defense  [of lack of]                 mens  rea manipulates the  concept of intent beyond                 the  intent   required  and  that  under   all  the                 circumstances,   having   considered  all   of  the                 evidence,  the Court will  sustain the government's                 objection  to any  offer of  that proof  before the                 jury and Defendant may have an exception.            As a preface to this conclusion, the district court described            in  some length the opinion  in United States  v. Pohlot, 827                                            _____________     ______            F.2d  889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988),                                      ____________            discussing  the pertinence  of  psychiatric  testimony  in  a            murder-for-hire case.                   After this evidentiary ruling, the case was tried in May            1995.  The jury  deadlocked on eight counts and  acquitted on            one count.   In October  1995, Schneider was  retried on  the            remaining  eight counts.    The district  court stood  by its                                         -5-                                         -5-            earlier ruling that the medical testimony was not admissible.            This time the jury convicted on all eight counts.                 Following  trial,  two  jurors  contacted  the  district            judge, expressing  concerns about another member  of the jury            panel.  On inquiry, the  district judge discovered that after            the verdict, the juror  in question had said that  she wanted            to  get out  of jury  service  because she  was "mental."   A            review of that juror's  questionnaire revealed that the juror            had affirmatively  answered the question:   "Do you  have any            physical or mental disability that would interfere or prevent            you  from serving as  a juror?"   On the reverse  side of the            questionnaire, the juror had written the following:                      I  have  an upsetting  emotional handicap                      since my children have been with the DCYF                      [a  Rhode Island  state agency],  and the                      strain  is sometimes too great for me and                      the walking to the bus stop especially in                      inclement  weather would be  kind of hard                      at this time.  I am presently looking for                      housing for my family.                   After  an  investigation of  the  juror  and a  personal            interview  by the district court, the court ruled that it was            "completely  satisfied  that  the  juror  was  competent  and            mentally capable at the time of the trial . . . ."  Schneider            nevertheless sought a new  trial on the ground that  he would            have  used his  peremptory challenges  differently if  he had            known  about  the  information  in the  questionnaire.    The            district court denied the motion.                                           -6-                                         -6-                 In due course, Schneider  was sentenced to 33  months in            prison  (he had a  prior conviction for  a "bust-out" offense            some years  before), and was  ordered to make  restitution of            about  $220,000.   On  this appeal,  he  claims as  error the            refusal  to admit the medical testimony; and he argues that a            new trial should have been granted because he could have used            a peremptory challenge to  dismiss the juror if he  had known            of the information in the questionnaire.                      We  begin with the harder of the two issues and ask            whether the district  court erred  in refusing  to admit  the            medical evidence.   The standard of review depends  upon what            has been decided:  rulings of law are reviewed  de novo while                                                            _______            review   is   typically  deferential   on   so-called  "mixed            questions."   Bergersen v. Commissioner of  Internal Revenue,                          _________    _________________________________            __ F.3d __,  1997 WL 120530, at *5 (1st  Cir. Mar. 21, 1997).            Here, a legal issue--the meaning of a federal statute--stands            at the threshold.                 In  1984, Congress  enacted the Insanity  Defense Reform            Act,  98  Stat. 2057,  redefining insanity  and making  it an            affirmative  defense to  be  proved by  clear and  convincing            evidence.   See  18 U.S.C.    17.   The statute  also states:                        ___            "Mental  disease or  defect does  not otherwise  constitute a            defense."  Id.   17(a).  Elsewhere, the government has argued                       ___            that  this quoted language is  meant to rule  out any mental-            condition  defense  or  testimony  that does  not  reach  the                                         -7-                                         -7-            heights  of  a  properly  pleaded insanity  defense.    E.g.,                                                                    ____            Pohlot, 827 F.2d at 890.            ______                 In  this  case,  Schneider  did not  offer  an  insanity            defense, but he argues that his medical evidence is pertinent            in helping a jury  decide whether he had the  requisite state            of  mind necessary for the offense  charged.  The government,            in  turn,  says   that  a  number  of  courts  have  admitted            psychological  evidence  to negate  specific  intent  but the            First  Circuit  has  suggested  otherwise;1  that  the  First            Circuit's view is consistent  with the final sentence  of the            statute just quoted; and  that it is nevertheless unnecessary            to resolve the issue  in this case because the  evidence here            was not relevant in any event.                 Aside  from  the final  sentence  of  section 17(a),  in            principle there should be  no bar to medical evidence  that a            defendant, although not insane, lacked the requisite state of            mind.  As LaFave and Scott say:                 The  reception  of   evidence  of  the  defendant's                 abnormal  mental condition, totally  apart from the                 defense  of  insanity,  is   certainly  appropriate                 whenever that evidence is  relevant to the issue of                 whether  he  had  the   mental  state  which  is  a                 necessary element of the crime charged.                                            ____________________                 1Compare United States v. Cameron, 907 F.2d 1051, 1065-                  _______ _____________    _______            66 (11th Cir. 1990), and United States v. Twine, 853 F.2d                                 ___ _____________    _____            676, 678-79 (9th Cir. 1988), with United States v. White, 766                                         ____ _____________    _____            F.2d 22, 24-25 (1st Cir. 1985), and United States v. Kepreos,                                            ___ _____________    _______            759 F.2d 961, 964 n.4 (1st Cir.), cert. denied, 474 U.S. 901                                              ____________            (1985).                                           -8-                                         -8-            1 LaFave &  Scott, Substantive  Criminal Law    4.7, at  530.                               _________________________            The  circuits that  have considered  the question  have taken            this view.   See United States v. Marenghi, 893  F. Supp. 85,                         ___ _____________    ________            89 (D. Me. 1995) (collecting cases).  After all, if  state of            mind is  a potential  issue--as it  is in  most  but not  all            criminal  cases--why   should  expert  medical   evidence  be            excluded out of hand?                 We  doubt that the  final sentence of  section 17(a) was            intended  to  exclude   mental-condition  evidence  short  of            insanity.   Pohlot  canvassed  the arguments  and legislative                        ______            history  at length, and  concluded (1) that  the statute does            not preclude a  defendant from offering evidence  to negate a            requisite state of mind, 827 F.2d at 903, but (2) that--apart            from  such a  negation--it does  preclude any  other new  and            different defense of  diminished responsibility to excuse  or            mitigate the  offense.   Id. at  905-06.2  Pohlot's  analysis                                     ___               ______            seems to us persuasive on both issues.                 Similarly, our  own decisions in White  and Kepreos were                                                  _____      _______            not  intended  to  establish  a  general  rule  that  mental-            condition evidence is always  inadmissible except in relation                                            ____________________                 2Although phrases like "diminished responsibility" are            sometimes used to refer to evidence that negates intent, see                                                                     ___            generally 1 LaFave & Scott, supra,   4.7, a different but            _________                   _____            similarly named concept was developing in a few courts--prior            to the new federal statute--to excuse or lessen            responsibility, even where the impairment would not make out            an insanity defense or negate required intent.  See, e.g.,                                                            ___  ____            People v. Wolff, 394 P.2d 959, 976 (Cal. 1964).            ______    _____                                         -9-                                         -9-            to  insanity.  In Kepreos,  the court held  that the specific                              _______            psychiatric testimony involved was misleading and of doubtful            utility, 759 F.2d at 964; in White, where no coercion defense                                         _____            was offered,  the court rejected psychiatric  evidence that a            defendant  engaged in a drug crime because "she was unable to            resist her mother's request for assistance . . . ."  766 F.2d            at  24.   These cases  largely  turn upon  their facts.   See                                                                      ___            Marenghi, 893 F. Supp. at 88-91.            ________                 Once past the threshold  of section 17(a), the situation            becomes  more  difficult for  the  defendant.   The  specific                                                                 ________            medical  evidence  offered may  still  be  irrelevant to  the            requisite intent, White,  766 F.2d at 24,  or probative value                              _____            may be substantially outweighed by confusion or delay.   Fed.            R. Evid.  403; Kepreos,  759 F.2d  at 964.   Finally,  if the                           _______            evidence  is  expert  testimony,  it must  meet  the  further            requisites  of scientific reliability  and helpfulness to the            jury.     Fed.  R.   Evid.  702;   Daubert  v.   Merrell  Dow                                               _______       ____________            Pharmaceuticals, Inc., 509 U.S. 579, 589-91 (1993).            _____________________                 In    deciding   such    issues--relevance,   confusion,            reliability,   helpfulness--the   district   court    has   a            comparative  advantage over  an  appeals panel.   The  issues            typically  involve  unique  fact  patterns and  judgments  of            degree, and the district judge is closer to the  case.  Thus,            so long as there is no misstatement of the legal standard and            the result reached is  not clearly unreasonable, the district                                         -10-                                         -10-            judge's ruling is usually respected.   United States v. Shay,                                                   _____________    ____            57 F.3d 126, 132 (1st Cir. 1995).                 Against this  background, we return to  the testimony in            this  case.    Dr.  Wartenberg  had  examined  Schneider  for            approximately an  hour and  a half  and reviewed  his medical            records, including medicines prescribed for him over a three-            or four-year period.  In his offer of proof, the doctor  said            that the prescriptions were medically  inappropriate and that            the  drugs as prescribed  "would impair intellectual function            in  a variety  of  ways," produce  blackouts, roller  coaster            highs and lows,  and permit misperception and delusion.   Dr.            Wartenberg summarized his view as follows:                         My  opinion is  that  to  a degree  of                      reasonable  medical  certainty  that  Mr.                      Schneider's     intellectual    capacity,                      cognitive   function,  ability   to  make                      executive  judgments and  decisions would                      have been  impaired by that level of drug                      prescribing.                 On  cross-examination,  government  counsel  secured  an            admission that  Schneider during this period  could engage in            "activity that is  planned to  carry out a  purpose."   Quite            properly, neither  side asked  Dr. Wartenberg  the "ultimate"            question  whether Schneider  had  intended  to defraud,  such            ultimate  questions  to experts  now  being  forbidden as  to            mental state in a  criminal case under Fed. R.  Evid. 704(b),            which is a  companion amendment  to section 17.   See  United                                                              ___  ______            States v. Meader, 914 F. Supp. 656, 658 (D. Me. 1996).            ______    ______                                         -11-                                         -11-                 The   expert  psychiatrist,   Dr.  Roth,   also  offered            testimony after interviewing Schneider and examining records.            He said that Schneider  suffered from chemical dependency and            "major depression with  probable mania."   He said also  that            these conditions "impair[ed] . . . judgment."  He declined to            express  a view  on  Schneider's ability  to form  a purpose,            saying that he (Dr. Roth) was not there at the time, and that            terms like "purposeful" posed a metaphysical question.                 As we  read the district  judge's ruling, he  deemed the            medical testimony  both irrelevant  and misleading.   Our own            view is that the evidence may  have been relevant but only to            a limited degree, and  that it had a substantial  capacity to            mislead  the  jury.   And we  think  that the  district court            clearly would  exclude the evidence  under Fed. R.  Evid. 403            even  if told  to view it  as having  limited relevance.   To            remand,  in  order  to  make  the  district  judge  say  this            explicitly, is  a waste of time.  Let us take these points in            turn.                 Relevance,    the    ordinary    starting   point    for            admissibility,  Fed. R. Evid. 401,  is a close  issue.  Here,            the government  urged that  Schneider had ordered  the goods,            expecting never to pay for them but to resell them and pocket            the money  and thereby  "intended to deceive."3   Schneider's                                            ____________________                 3This, more precisely, is the "specific intent" element            that Schneider's evidence purported to negate.  The fraud            charge in this case has several different elements (e.g., use                                                                ____                                         -12-                                         -12-            answer was that he lacked this state of mind  and the medical            evidence  helped  him support  this  view,  that  is (in  the            language of  the rule), that  the medical testimony  made his            intent to defraud "less probable than it would be without the            evidence."  Fed. R. Evid. 401.                 The  sum of the doctors' evidence  is that Schneider was            depressed,  that  he  had   impaired  judgment  (due  to  his            depressed state and overmedication),  and that he was subject            to blackouts.  This might not  appear at first to go very far            in   negating  his   capacity   to  deceive,   especially  as            Schneider's scheme  continued  over  several  months.    This            explains the district court's  view that the medical evidence            did not negate an intent to deceive but instead amounted to a            forbidden claim in mitigation.                 Still,  evidence  may  be  "relevant" under  Rule  401's            definition, even if it fails to prove or disprove the fact at            issue--whether taken  alone or in combination  with all other            helpful  evidence on that issue.  In the latter instance, the            judge could direct a verdict if the issue were essential, but            not  against the defendant  in a criminal  case.  Schneider's            ___            best argument is, therefore, that his medical evidence did go            some  distance  to  negate  intent  to  deceive  and  so  was            relevant.                                            ____________________            of the mails) for which there may also be state of mind            requirements but they are not important here.  See generally                                                           _____________            2 Sand et al., Modern Federal Jury Instructions 44-5 (1996).                   ______  ________________________________                                         -13-                                         -13-                 Where evidence goes  "some distance" but manifestly  not            far  enough,  it  may  be tempting  to  say  that  it is  not            relevant.   Frankly, Pohlot appears to us to take this course                                 ______            by ruling  that the psychological evidence  of impairment was            irrelevant  because   "by  his  own  admission,"  Pohlot  had                                                              ______            "finalized an  agreement to have  his wife murdered  and this            `purpose'  to  hire someone  to  kill  his  wife  was  enough            regardless of  whether he  `psychologically . .  . understood            the full consequences of this activity.'"  827 F.2d at 889.                 But we have  some doubt  that this  usage comports  with            Rule  401's  definition quoted  above.   Nor  do we  think it            helpful in  a case like  ours to ask, as  Pohlot did, whether                                                      ______            the conduct was "purposeful."  Pohlot said that the  ordinary                                           ______            mens  rea  requirement  is   satisfied  "by  any  showing  of            _________            purposeful   activity,   regardless   of  its   psychological            origins."    827 F.2d  at  904.   But  it  is quite  possible            purposefully  to order goods on credit, and later not pay for            them, without having an intent to deceive.                 Pohlot's other theme is the capacity of evidence of this                 ______            kind  to mislead.  Congress raised the hurdle for an insanity            defense  and barred  a new  diminished capacity  defense that            courts were  beginning to invent.  Yet  the evidence offered,            both  here and  in Pohlot,  suggests that  the defendant  was                               ______            temporarily out  of his mind  (even though  not insane  under            section 17(a))  and  that  his crime  was  mitigated  by  his                                         -14-                                         -14-            psychological condition.  Such evidence  tends to reintroduce            the very concepts that Congress wanted to exclude and thereby            to mislead the jury.                 In weighing relevance against ruck under Rule 403.   The            government does not now  challenge the evidence as unreliable            under Daubert--only its pertinence  to this case.  Nor  do we                  _______            propose to decide here the issue explicitly reserved in Shay,                                                                    ____            namely,  whether and  when  the judge  may exclude  otherwise            relevant  expert evidence  on  the ground  that  it will  not            "assist"  the jury.   See  Shay, 57  F.3d at  132-33.   It is                                  ___  ____            enough  that exclusion of the evidence here under Rule 403 is            eminently justifiable.                 The evidence, as we have said, is of limited  relevance:            showing "impaired"  judgment might help  piece out a  lack of            deceit  claim but falls well  short of sufficient  proof.  At            the same time, the expert testimony offered here could easily            mislead the jury into thinking that such  a medical condition            amounts to  temporary insanity  or  ameliorates the  offense.            The  instructions  required here  to guard  the jury  on this            score  would likely have gone  very far to  eliminate any use            the evidence might otherwise have to the defendant.                 Thus, we conclude  that the district  court was free  to            exclude  this evidence  on the  ground that  its capacity  to            mislead  the   jury  substantially  outweighed   its  limited            relevance.   Since exclusion was permitted  but not required,                                         -15-                                         -15-            we  could  remand for  an  explicit finding  under  Rule 403.            Shay, 57 F.3d at 134.  But given the district court's evident            ____            view  of  the  matter,  our  limited  disagreement  with  the            district  court's reasoning  would hardly alter  the district            court's desire to exclude the evidence.  A remand would serve            no purpose.   See  United  States v. Dolloph, 75  F.3d 35, 38                          ___  ______________    _______            (1st Cir.), cert. denied, 116 S. Ct. 1866 (1996).                        ____________                 Although   our   concerns   about   such   evidence  are            considerable,  we shrink  from  any generic  rule that  would            forbid the district courts from resolving admissibility  case            by  case.   Offenses  differ  from  each  other; the  medical            evidence, taken alone and in combination with other evidence,            is  going to  vary  widely;  and this  is  an area  in  which            everyone is still  learning.   In the spirit  of Daubert,  we                                                             _______            rely heavily on the wise superintendence of the  trial court.            509 U.S. at 592-93.  In this case we have no quarrel with how            it was exercised.                 This  brings us  to Schneider's  second claim  of error,            namely,  that the district court erred in refusing to grant a            new trial.  The basis  of the new trial motion was (so far as            pertinent  here)  that  the  juror  questionnaire  would,  if            disclosed,  have  revealed   mental  or  emotional   problems            pertaining to  the juror  in question, perhaps  prompting the            use of a peremptory challenge to remove the juror.  Again, in                                         -16-                                         -16-            considering  the  district court's  action,  our  standard of            review depends upon what the district judge decided.                   The district  court ruled that Schneider  had waived his            objection  because he  failed to move  for disclosure  of the            questionnaire answers prior  to empanelment.  We  took such a            view in United States  v. Uribe, 890 F.2d 554, 561  (1st Cir.                    _____________     _____            1989), but stopped  just short of  a definitive finding  that            the Rhode Island federal  juror selection plan permitted such            access to  jury questionnaires.   Id.    In affirming,  Uribe                                              ___                   _____            relied heavily  on the alternative ground  that the defendant            had suffered  no prejudice  from the nondisclosure.   Id.  at                                                                  ___            562.                 On this  appeal, the parties seek to  litigate at length            whether  Schneider  did have  effective  access  to the  jury            questionnaires, which  the governing statute  treats somewhat            differently than jury  lists.4  Neither  the statute nor  the            Rhode  Island   plan  are  crystal  clear   about  access  to            questionnaires.  See 28 U.S.C.   1867(f); Davenport, 824 F.2d                             ___                      _________            at 1515.  We  have previously interpreted the statute  not to            allow inspection of questionnaires "solely to aid in the voir                                            ____________________                 4See Jury Selection and Service Act of 1968, 28 U.S.C.                    ___            1861 et seq.  Compare Test v. United States, 420 U.S. 28, 30                 ______   _______ ____    _____________            (1975) (per curiam) (litigants have "unqualified" right of            access to jury lists under   1867) with United States v.                                               ____ _____________            Davenport, 824 F.2d 1511, 1514-15 (7th Cir. 1987)            _________            (distinguishing juror lists from individual questionnaires            and holding that the latter were not available for            inspection).                                         -17-                                         -17-            dire process."  Jewell v. Arctic Enterprises, 801 F.2d 11, 13                            ______    __________________            (1st Cir. 1986).                 Under these circumstances, we  are reluctant to rest our            decision  on waiver  or forfeiture.   Assuming  arguendo that                                                            ________            Schneider might have sought access to the questionnaire based            on a showing of need, before trial he had no basis for such a            motion.  This is not a case where, prior to empanelment,  the            defendant  knew or should  have known of  a potential problem            with a juror and failed to ask for  the questionnaire.  E.g.,                                                                    ____            United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st Cir.),            _____________    _____________            cert. denied, 498 U.S. 990 (1990).            ____________                 On the other hand, Schneider has abandoned on appeal any            effort  to  show  actual  prejudice  (e.g.,  by  pointing  to                              ______              ____            characteristics of  the juror  that would likely  have caused            her to take an adverse view of Schneider or to fall under the            sway of other  jurors).   Such contentions were  made in  the            district  court but were  rejected and  are not  now pursued.            Schneider's   position  instead  is  that  prejudice  is  not            required, and he relies on our own statement in United States                                                            _____________            v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979):               ______                 [T]here  is  little  doubt  that if  the  court  or                 prosecution  deprives a  defendant of his  right to                 the effective exercise of peremptory challenges, it                 would, without more, be grounds for a new trial.                 In  a  number  of   cases  involving  interference  with            peremptory challenges, the reviewing  court has treated proof            of prejudice as unnecessary.   See United States v. Annigoni,                                           ___ _____________    ________                                         -18-                                         -18-            96  F.3d  1132, 1141  (9th Cir.  1996) (en  banc) (collecting            cases). But  such cases normally involve  a deliberate denial            or interference.   Without automatic  reversal, such  conduct            could   rarely  be  corrected;  by  definition,  lawyers  use            peremptories where a challenge for cause will not work.                 By contrast, a failure of the district court's screening            apparatus  to  uncover  some   piece  of  potentially  useful            information in a raft of  jury questionnaires is, if  "error"            at all, a mistake of quite  a different kind.  At worst, such            a  mistake might  resemble the  failure of  the judge  to ask            adequate voir  dire questions,  where we have  insisted on  a            showing  of prejudice.  United States v. Anagnos, 853 F.2d 1,                                    _____________    _______            3-5 (1st  Cir. 1988).  See  also 9A Wright  & Miller, Federal                                   _________                      _______            Practice & Procedure   2482 at 115 & n.8 (2d ed. 1995).            ____________________                 We  need not try to draw a definitive line between cases            where a showing of  prejudice is required and cases  where it            is not,  as this one so  clearly falls on the  former side of            the line.  There was no direct interference with a peremptory            challenge, cf. United States v. Cambara, 902 F.2d 144, 147-48                       ___ _____________    _______            (1st Cir.  1990), and  no indication that  useful information            was deliberately withheld.  Here, as in Vargas (where a juror                                                    ______          _____            withheld information),  "[a] new trial [without  a showing of            prejudice]  would be  a windfall  for the  defendant" without            much countervailing benefit.  606 F.2d at 346.                 Affirmed.                 ________                                         -19-                                         -19-
