
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1251                                    UNITED STATES,                                      Appellee,                                          v.                                     LISA BURNS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                           and Barbadoro,* District Judge.                                           ______________                                 ____________________            William  Maselli,  by  Appointment  of  the  Court, on  brief  for            ________________        appellant.            Jay  P. McCloskey, United States Attorney, and  Michael M. DuBose,            _________________                               _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                  February 8, 1994                                  ____________________        ____________________        *Of the District of New Hampshire, sitting by designation.                            Barbadoro, District Judge.  Lisa M. Burns,  a                            Barbadoro, District Judge                            _________________________             United  States Post Office employee, was tried and convicted             on two counts of embezzling mail in violation of 18 U.S.C.               1709.   She  argues that  we should  reverse her  conviction             because:   (1)  the  prosecutor violated  Fed.  R. Crim.  P.             16(a)(1)(A)  by  failing   to  timely   disclose  a   postal             inspector's report summarizing statements Burns made  to one             of  her  supervisors;  (2)  the  District  Judge erroneously             admitted other allegedly  involuntary statements Burns  made             to  the   investigating  postal  inspector;  (3)  the  Judge             mistakenly  read from  a  superseded  indictment during  his             preliminary  jury  instructions;  (4)  the Judge  improperly             excluded on hearsay grounds certain  testimony Burns offered             to impeach  the testimony of  another witness;  and (5)  the             Judge's  jury  instruction  concerning  Burns'  intoxication             defense  unconstitutionally required  her to prove  that she             acted  without criminal intent.  Finding no reversible error             in these claims, we affirm her conviction.                                        I.  Background                                    I.  Background                                    ______________                            Lisa Burns  first  came to  the attention  of             United  States  Postal  Inspectors  after  Inspector  Robert             Bethel placed a routine "test mailing" at the  Naples, Maine                                         -2-                                          2             post office  where  Burns worked.    "Test mailing"  is  the             Postal  Service's method of determining whether employees at             certain randomly-selected post offices are properly handling             the mail.   The "test  mail" is an  envelope addressed  to a             fictitious  person at a non-existent post  office box at the             targeted  post office.   The  envelope  is typically  marked             "refund inside"  and  contains a  rebate check  made out  to             bearer.  The return address on the envelope specifies a post             office box in the New  England area controlled by the Postal             Service.  If the mailing  is handled properly, it is usually             marked "undeliverable" and returned within two weeks.  If it             is  not  returned,  the postal  inspector  targets  the post             office  for  additional   test  mailings  and  attempts   to             determine what happened to the initial mailing.                               The first  test mailing Bethel  placed at the             Naples post  office contained a  $5 rebate check.   When the             mailing was not returned, Bethel recovered the cashed rebate             check and determined  that it  had been  endorsed by  Burns.             Bethel then  tried  to tempt  Burns  with a  second  mailing             containing a $10  rebate check.  It also  disappeared.  This             time, Bethel discovered that the rebate check apparently had             been endorsed by Karen King, Burns' roommate.                                          -3-                                          3                            After  failing  to   entice  Burns  with  yet             another test mailing,  Bethel confronted her in  the parking             lot of the  post office.   He identified himself,  described             the nature of his investigation,  advised Burns that she was             not under arrest, and asked her whether she would be willing             to speak  with him.   She agreed,  and they returned  to the             post  office.  Before beginning his questioning, Bethel read             Burns her  Miranda rights from a Postal Service waiver form.                        _______             He also had her initial  each printed statement after it was             read and sign the form at the end.  Burns then  made several             incriminating statements in response to Bethel's  questions.             At  the end of  the interview,  she wrote  out and  signed a             statement memorializing her  admissions.   Burns later  sent             Bethel  a supplemental statement  in which she  alleged that             she  had an  imperfect  recollection  of  the  incidents  in             question  because she was  an alcoholic and  was intoxicated             when she took the test mailings.                At    trial,             the government's case rested primarily on Bethel's testimony             and  Burns'   admissions.     In  response,   Burns  pleaded             entrapment and intoxication.   The jury ultimately  rejected             her defenses and found Burns guilty on both counts.  She was             later sentenced to 60 days confinement and fined $500.                                         -4-                                          4                                   II.  Discussion                                   II.  Discussion                                   _______________             A.        Pre-Trial Disclosure Pursuant to Rule 16                       ________________________________________                            Burns' primary argument on appeal is that the             prosecutor violated Rule 16(a)(1)(A)  by failing to disclose             prior to trial a report summarizing statements Burns made to             one  of  her supervisors.    In  pertinent  part,  the  rule             provides that:                             Upon  request  of  a defendant                            the government  shall disclose                            to  the  defendant   and  make                            available    for   inspection,                            copying, or photographing: . .                            . that portion  of any written                            record      containing     the                            substance of any relevant oral                            statement    made    by    the                            defendant  whether  before  or                            after  arrest  in  response to                            interrogation  by  any  person                            then known to the defendant to                            be a government agent  . . . .             Burns  argues that her  supervisor was a  "government agent"             and  that   she  made   her  statements   "in  response   to             interrogation."   Thus, she contends that the prosecutor was             obligated  to disclose the  report pursuant to  her pretrial             request.   We reject  Burns' arguments because  we determine                                         -5-                                          5             that  Burns' supervisor was not a "government agent" as that             term is used in Rule 16.1                            Rule 16 does  not define "government  agent."             We  therefore   must  choose   between  the   two  plausible             definitions  of  the   term.    Viewed  broadly,   the  term             encompasses anyone who performs duties of a public nature on             behalf of the executive, legislative or judicial branches of             the  local,  state  or  federal  government.    Black's  Law                                                             ____________             Dictionary  695-96 (6th ed. 1990) (defining "government" and             __________             "government agent").   Burns' supervisor would qualify  as a             government  agent  under  this  definition  because  he  was                                              ____________________             1         We also  reject Burns' additional  assertion that,             because  Bethel  reduced the  supervisor's  oral  summary of             defendant's  statements  to  writing,  this written  summary             constitutes a recorded statement of the defendant subject to             disclosure "regardless of  who the statement was made  to or             how it was occasioned."   Although the first subpart of Rule             16(a)(1)(A)  makes   a  defendant's  "written   or  recorded             statements" discoverable  irrespective of whether  they were             made  in response  to interrogation  by  a known  government             agent,  we agree  with the  Second Circuit Court  of Appeals             that an oral statement does not become "written or recorded"             merely because a government agent made  a written summary of             the statement before  trial.  In Re United  States, 834 F.2d                                           ____________________             283, 284-85 (2d  Cir. 1987).  See also,  e.g., United States                                           ___ ____   _____ _____________             v. McCure, 734  F.2d 484, 492-93 (10th Cir. 1984).   This is             _________             especially true where,  as here, the statement  was actually             heard by a  third party and then reported  to the government             agent at a later date.  See In Re United States, 834 F.2d at                                     ___ ___________________             285-86.                            Finally,  because  we  agree with  the  trial             judge that Burns' supervisor was not  a government agent, we             need  not decide  whether Burns'  statements  were made  "in             response to interrogation."                                           -6-                                          6             employed  by the  United  States  Postal  Service  when  the             statements  were made.  The competing definition is narrower             and more colloquial.  It includes only persons with criminal             law  enforcement responsibilities  or  their  agents.   See,                                                                     ____             e.g.,  Hoffa v.  United  States, 385  U.S. 293,  295, 305-07             ____   ________________________             (1966) (using "government  agent" to describe an  undercover             law enforcement officer); Illinois v. Perkins, 496 U.S. 292,                                       ___________________             294,  297,  299  (1990).    Under  this  definition,  Burns'             supervisor would not qualify as a  government agent since he             had no criminal law enforcement responsibilities and was not             acting as an agent of  the postal inspectors when Burns made             the  incriminating statements.  The choice between these two             definitions presents  a question of  law which we  review de                                                                       __             novo.  United States v.  O'Neil, No. 93-1325, 1993 U.S. App.             ____   ________________________             LEXIS 32612, at *7 (1st Cir. Dec. 15, 1993).                            We begin  our analysis  with  the axiom  that             language must be interpreted in context.  Kelly v. Robinson,                                                       _________________             479 U.S. 36,  43 (1986).  As we  have recently acknowledged,             "[t]erms  in an act  whose meaning may  appear plain outside             the scheme  of the statute  can take on a  different meaning             when read in their proper  context."  Greenwood Trust Co. v.                                                   ______________________             Massachusetts,  971 F.2d  818, 825  (1st  Cir. 1992),  cert.             _____________                                          _____             denied, 113 S. Ct. 974 (1993).               ______                                         -7-                                          7                            Here,   by    limiting   the    prosecution's             disclosure obligation  to summaries  of relevant  statements             that are made by a defendant "in response to interrogation,"             the  Rule's surrounding  text strongly  supports the  narrow             reading of the  term.  When Rule  16 was amended in  1974 to             include the language at issue, the amendment's drafters were             working in  a milieu in  which courts were required  to give             special  attention to  statements  obtained in  response  to             interrogation by  law  enforcement  officers.    See,  e.g.,                                                              __________             Miranda v. Arizona, 384 U.S. 436 (1966).  Obviously, Miranda             __________________                                   _______             and  its  progeny  require   suppression  of  a  defendant's             statements obtained  through custodial  interrogation unless             the defendant  properly waived  his or  her Miranda  rights.                                                         _______             Id. at  444-45.  Moreover,  even if  a defendant was  not in             __             custody, his or  her statements might still be suppressed if             they were coerced  through interrogation by  law enforcement             officers.  See, e.g., Rogers  v. Richmond, 365 U.S. 534, 544                        _________  ___________________             (1961);  Davis v.  North  Carolina,  384  U.S.  737,  740-42                      _________________________             (1966); Beecher  v. Alabama, 389  U.S. 35, 36 &  n.2 (1967).                     ___________________             See also  Beckwith v.  United States,  425 U.S.  341, 347-48             ___ ____  __________________________             (1976) (citing  Rogers and  Davis for  the proposition  that                             ______      _____             statements resulting from  noncustodial interrogation may be             suppressed if involuntary).  Such concerns did not  then and                                         -8-                                          8             do not now apply to  statements obtained from a defendant by             persons without law enforcement responsibilities, regardless             of   whether   the   statements    were   obtained   through             interrogation.   See, e.g., Yates v. United States, 384 F.2d                              _________  ______________________             586, 587-88 (5th Cir. 1967) (hotel manager who  tipped FBI);             United  States v. Antonelli, 434  F.2d 336-38 (2d Cir. 1970)             ___________________________             (private  security guard); United  States v. Eide,  875 F.2d                                        ______________________             1429, 1431, 1433-34 (9th Cir. 1989) (defendant's  supervisor             at federal Veterans' Administration  Medical Center); United                                                                   ______             States  v. Pullen,  721 F.2d  788,  790-91 (11th  Cir. 1983)             _________________             (bank officials).   Thus, if "government agent"  refers only             to  law enforcement  officials or  persons  acting on  their             behalf, the potential for pretrial suppression of statements             that  resulted   from  interrogation  by   such  individuals             provides  a rational  basis  for limiting  the  government's             pretrial  disclosure obligation  to summaries  of statements             made "in response to interrogation."  The rational basis for             the   interrogation  limitation   disappears,  however,   if             "government agent" is construed to mean government employee.                            Besides enjoying  strong contextual  support,             the  narrow   meaning  of  "government   agent"  avoids  the             arbitrariness that  would result  if the  term were  defined                                         -9-                                          9             more  expansively.   We  agree  that  the  broad reading  of             "government agent" gives  maximum deference to  the policies             underlying Rule 16's mandatory disclosure rules.  See United                                                               ___ ______             States  v. Alvarez,  987 F.2d  77, 84-85  (1st Cir.),  cert.             __________________                                     _____             denied,  114  S.   Ct.  147  (1993)  (Rule   16's  mandatory             ______             disclosure  provisions  promote  "the   fair  and  efficient             administration   of  criminal   justice  by   providing  the             defendant  with sufficient information upon which to base an             intelligent [] plea; by minimizing the undesirable effect of             suppression at trial; and by contributing to the accuracy of             the fact finding  process.").  Once it is  divorced from the             law  enforcement  context,   however,  this  definition   is             problematic  because  it   deteriorates  into  a  completely             arbitrary limitation on the prosecution's duty  to disclose.             Under the term's broad reading, for example, the prosecution             would   be  obligated  to  disclose  portions  of  a  report             summarizing statements  the defendant  made to a  government             cook,  but  not  those  portions  of the  same  report  that             summarize statements the defendant made to another cook at a             privately-run  diner.  Moreover, given that Rule 16 requires             that the individual to whom the statements are made be "then             known  to  the   defendant"  as  a  government   agent,  the             prosecution  would  only   be  obligated  to   disclose  the                                         -10-                                          10             defendant's  statements  to  the  government  cook  if   the             defendant knew  when she made  the statements that  the cook             was  a government  employee.    The  arbitrariness  of  such             distinctions is obvious.                              Consistent with the rule of construction that             legislative  enactments  "should  be  interpreted  to  avoid             untenable  distinctions  and unreasonable  results  whenever             possible,"   American Tobacco Co. v. Patterson, 456 U.S. 63,                          _________________________________             71 (1982);  Kelly v. United  States, 924 F.2d 355,  361 (1st                         _______________________             Cir.  1991), we refuse  to construe "government  agent" in a             way that  requires such arbitrary  line drawing when  a less             problematic reading of  the term is  also plausible.   Here,             the  narrower  definition of  "government agent"  limits the             government's pretrial disclosure obligation to summaries  of             those statements that  are most likely to require a pretrial             ruling before they are admitted into evidence.  By doing so,             this  definition serves  the  policies  underlying  Rule  16             without irrationally  requiring the prosecution to  base its             disclosure determination on whether the defendant knows that             the  person  to whom  she  is  making  her statements  is  a             government  employee.   We therefore  agree  with the  trial                                         -11-                                          11             court  that, as used  in Rule 16,  "government agent" refers             onlyto lawenforcement agentsorpersons actingon theirbehalf.2             B.        Voluntariness of Burns' Confession                       __________________________________                            Burns  next challenges  the District  Judge's             denial of  her  motion  to suppress  the  oral  and  written             statements  she made in response to questioning by Inspector             Bethel.  She alleges that  Bethel promised not to arrest her             if she cooperated with  his investigation.  She  also claims             that Bethel's questioning was inherently coercive because it             occurred  at the  one-room post  office in  the presence  of             customers  and her supervisor.   Finally, she  contends that             she  was  in  a "weakened  psychological  state"  during the             interview  because  she  was an  alcoholic  who  had stopped             drinking only two weeks earlier.  Based upon the totality of             these   factors,  Burns  claims  that  her  statements  were             involuntary and therefore should have been suppressed.                              In   determining  the   voluntariness  of   a             confession,  courts   must  apply   the  "totality   of  the                                              ____________________             2         In reaching this conclusion, we do not endorse the             prosecution's  decision to withhold Bethel's report.  As the             advisory committee  notes to the Rule point out, "[t]he rule             is intended to prescribe the  minimum amount of discovery to             which  the parties  are  entitled."   Fed.  R.  Crim. P.  16             advisory committee's note (1974 amendment) (West 1993).                                           -12-                                          12             circumstances test."   Arizona v. Fulminante, 499  U.S. 279,                                    _____________________             286 (1991).  Although the ultimate issue of voluntariness is             a question of law subject  to plenary review, we will accept             the district court's subsidiary findings of fact unless they             are "clearly erroneous."  United States v. Garcia,  983 F.2d                                       _______________________             1160, 1167  (1st Cir.  1993).  Further,  we will  uphold the             district court's  denial of  a motion to  suppress if  it is             supported by any reasonable view of the evidence.  Id.                                                                   ___                            Applying these standards to the three factors             allegedly  requiring  suppression  of Burns'  statements  --             Bethel's alleged promise, his  choice of interrogation site,             and  Burns' mental  state -- we  conclude that  the District             Judge correctly denied her motion to suppress.  First, while             Burns testified  that Bethel promised  not to arrest  her if             she  agreed  to  be interviewed,  the  Magistrate  Judge who             presided  at  the   suppression  hearing  accepted  Bethel's             contrary testimony and  found that he had never  made such a             promise.  Since  the record contains sufficient  evidence to             support the Magistrate Judge's finding, the District Judge's             acceptance of this  finding was not clearly  erroneous.  See                                                                      ___             United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990)             _____________________________             ("Where  there  are  two  competing  interpretations  of the             evidence, the district court's choice of one of  them cannot                                         -13-                                          13             be  clearly  erroneous.").   Accordingly,  Bethel's  alleged             promise  not  to  prosecute  Burns  plays  no  role  in  our             evaluation of whether her statements were voluntary.                              Second,  we reject  Burns' claim  that Bethel             chose an inherently coercive setting for the interview.  The             record amply supports the Magistrate Judge's conclusion that             Burns agreed  to  be interviewed  at the  post office  after             being  informed that  she  was not  under  arrest and  after             voluntarily waiving  her Miranda  rights.   Moreover,  Burns                                      _______             worked  at the post  office, and so  was intimately familiar             with the  site Bethel  chose for  the interview.  Given that             Burns  agreed to  be  interviewed  in familiar  surroundings             after  being advised  that she  was under  no obligation  to             speak, we cannot accept her claim that Bethel's  decision to             conduct  the interview  at the  post  office was  inherently             coercive.                            Finally, Burns  contends that  her statements             were involuntary because they were a product of her weakened             mental state.   Burns correctly conceded at  the suppression             hearing  that,  absent  some  evidence  of  coercive  police             conduct, the  court could not find that  her weakened mental             state  rendered her statements involuntary.  See Colorado v.                                                          ___ ___________             Connelly,  479 U.S.  157, 163-67  (1986);  United States  v.             ________                                   _________________                                         -14-                                          14             Victoria-Peguero, 920  F.2d 77,  88 (1st  Cir. 1990),  cert.             ________________                                       _____             denied,  111 S.  Ct. 2053  (1991).   Since  we have  already             ______             rejected  Burns'  contention   that  Bethel's  conduct   was             coercive, we must reject her state of mind argument as well.             C.        Reading from the Wrong Indictment                       _________________________________                            Burns   claims   that  the   District   Judge             committed  reversible  error by  mistakenly  reading from  a             superseded indictment when he described the charged offenses             in his preliminary jury instructions.  Because Burns did not             object  to  the  Judge's preliminary  instructions,  we  are             limited  to "plain  error" review.    See Fed.  R. Crim.  P.                                                   ___             52(b).   Accordingly,  we will  not  reverse her  conviction             unless:   (1) the Judge erred;  (2) his error was "clear" or             "obvious";  and (3)  the error affected  Burns' "substantial             rights,"  which in  this case  means that the  claimed error             probably affected the jury's verdict.   See United States v.                                                     ___ ________________             Olano, 113 S. Ct. 1770, 1777-78 (1993).  Here, because Burns             _____             has  failed to  show  that the  court's  error affected  her             substantial rights, her claim fails.                               Although the  District Judge  mistakenly read             from  the   original  indictment   during  his   preliminary                                         -15-                                          15             instructions,  this error could not have affected the jury's             verdicts.   First,  each of  the  original indictment's  two             counts  tracked the language of the embezzlement statute and             described  each embezzlement's  approximate date  and place.             Second, the only  difference between the two  indictments is             that the original  indictment identified the embezzled  test             mailings  solely  by  listing  their  fictitious  addresses,             whereas  the  superseding  indictment  also  identified  the             payors  and  check numbers  of  the rebate  checks  that the             mailings contained.   Since the original indictment provided             Burns  with enough information about the charged offenses to             both  prepare for  trial  and  avoid  double  jeopardy,  the             additional   information   contained  in   the   superseding             indictment is mere surplusage.  See United States v. Serino,                                             ___ _______________________             835 F.2d  924, 929 (1st  Cir. 1987).  Moreover,  the Judge's             failure to read  this surplusage to the jury  could not have             affected  its verdicts because the contents of the embezzled             test mailings  were not  in dispute.   See United  States v.                                                    ___ _________________             Yefsky, 994  F.2d 885,  892-94 (1st Cir.  1993) (trying  the             ______             defendant on  an indictment  containing insufficient  detail             concerning the  charged  offense was  harmless  error  where             defendant received advance notice of the government's  trial                                         -16-                                          16             theory  and defendant had an adequate opportunity to respond             at trial).3             D.        Hearsay                       _______                            Burns next  contends that the  District Judge             improperly excluded as hearsay certain testimony she offered             to impeach the  testimony of another witness.   Early in her             case, Burns called  her co-worker and friend,  Cathy Larsen,             as a character witness.  On cross-examination, Larsen stated             that she had  visited Burns after Bethel had  confronted her             about the  missing mailings.   Larsen  then testified  that,             while discussing the theft of  the test mail, Burns told her             that she "had  done something stupid," was  "embarrassed and             ashamed"  and apologized  for her  conduct.   After  calling             several other  witnesses, Burns called  her roommate,  Karen             King.  King, who had been present with Burns during Larsen's             visit, testified:                                               ____________________             3         Burns also argues that she was tried on  the wrong             indictment.   However, this argument does not merit extended             discussion because  it is not  supported by the record.   At             the  close of  the  case, the  judge  instructed counsel  to             review both the indictment and the jury  verdict form before             they were submitted to  the jury.   The record is devoid  of             any suggestion that counsel failed to ensure that it was the             superseding indictment that was submitted.   We thus have no             reason  to determine whether Burns' conviction would have to             be  reversed  if the  jury  had  been  asked to  render  its             verdicts on the original indictment.                                             -17-                                          17                       Q.   On  that night  did  Lisa make  any                       statement      saying   she   had  taken                       checks?                       A.   Never.          The  prosecutor  objected  to King's  answer,  claiming  that the          answer was  hearsay.    Defense  counsel responded  that  he  was          offering  the testimony  not to  establish that  Burns  had never          taken  the checks, but  to impeach Larsen's  testimony that Burns          had made  the statements.   The Judge sustained  the prosecutor's          objection.    On appeal,  Burns contends  that exclusion  of this          testimony was reversible error.                              We agree that King should  have been allowed  to          testify that Burns never admitted to taking the checks.  When the          prosecutor   elicited   testimony   from  Larsen   about   Burns'          statements,  the  prosecutor  put  those  statements in  dispute.          Burns then was entitled to  produce testimony from another of the          meeting's participants to refute the prosecutor's version of what          was  said.   Such testimony  is not  hearsay because  it was  not          offered to  prove the  truth of  Burns' out-of-court  statements.          Since  King   was  prepared   to  testify   concerning  her   own          observations of what  was said during the  meeting, her testimony          should have been admitted.                         Although    the          trial judge  erred, we  decline to  reverse Burns'  conviction on          this basis because  his error was harmless.  See Fed. R. Crim. P.                                                       ___                                         -18-                                          18          52(a).  Burns  did not challenge the  prosecutor's well-supported          claim   that  she   took  the   test  mailings.     Under   these          circumstances, her statements to Larsen were harmful only to  the          extent  that they  might  undermine  her claim  that  she was  so          intoxicated when  she took the  checks that she did  not remember          doing so.  Even for this  purpose, however, the statements are of          limited probative  value.   Burns allegedly  made the  statements          after  she was  confronted by  Bethel and  accused of  taking the          mailings.  Having been  so accused, and thus  supposedly learning          what  she  had   done,  it  was  entirely  consistent   with  her          intoxication  defense for  her  to have  expressed  shame to  her          friends.  Given the limited value of Larsen's testimony, the fact          that Burns was  denied the opportunity to challenge  it could not          have affected the jury's verdict.                              The   harmlessness  of   the  Judge's  error  is          underscored by another fact --  that the prosecution did not need          to rely on Larsen's testimony  to establish that Burns acted with          criminal intent.  In her statements to Bethel, Burns acknowledged          taking the test  mailings and described how she did so in detail.          It was  this testimony, far  more than Larsen's,  that demolished          Burns' claim that she was  too intoxicated to remember taking the          test mailings.  Accordingly, it  was harmless error for the Judge          to  exclude King's  testimony about  her  recollection of  Burns'                                         -19-                                          19          statements to  Larsen.   See, e.g., United  States v.  Burke, 948                                   _________  ________________________          F.2d 23, 27-28 (1st Cir. 1991).             E.           The Intoxication Instruction                       ____________________________                            Burns' final claim is that the District  Judge's          intoxication instruction unconstitutionally required her to prove          that  she acted  without criminal  intent.   The  Judge gave  the          following instruction on Burns' intoxication defense:                           Now, the defendant  claims that she  was                                           ____________________                       so far  overcome by  the use of  alcohol                       ________________________________________                       that it was impossible  on the occasions                       ________________________________________                       for her  to form  the required  specific                       ________________________________________                       intent,  as  I  have just  defined  that                       ______                       intent to you.                         I  instruct you  that  you may  consider                       evidence   of   alcohol   use   by   the                       defendant, along  with all of  the other                       evidence,   in   deciding   whether  the                       government   has    proven   beyond    a                       reasonable doubt that  the defendant had                       the  requisite  intent  to,  as  I  have                       described that to you. (Emphasis added).          Burns  contends that  the  phrase "defendant  claims  ... it  was          impossible"  suggested that Burns was required  to prove that she          acted without criminal intent.  We disagree.                              The  intoxication  instruction merely  described          the degree  to which  Burns' cognitive  capacity  must have  been          impaired before  her alcohol use  could support a finding  of not          guilty.  Immediately after instructing the jury on the issue, the                                         -20-                                          20          Judge reminded the  jury that the prosecution still  had to prove          that Burns acted with criminal intent.  When the two instructions          are  read together,  they adequately apprised  the jury  that the          prosecution  had the burden  of establishing beyond  a reasonable          doubt   that  Burns'  alcohol  use  did   not  prevent  her  from          intentionally committing the  charged offenses.  Accordingly,  we          reject Burns' challenge to the Judge's intoxication instruction.4                            For the foregoing  reasons, Burns' conviction is          Affirmed.          Affirmed.          _________                                              ____________________             4         The prosecution contends  that Burns had  no right             to  an  intoxication instruction  because intoxication  is a             diminished capacity defense barred  by the Insanity  Defense             Reform Act of  1984, 18 U.S.C.    17.  See United  States v.                                                    ___ _________________             Saban-Gutterrez, 783 F. Supp. 1538, 1545, n.7 (D.P.R. 1991),             _______________             aff'd,  961 F.2d 1565 (1st Cir. 1992) (unpublished opinion);             _____             United States  v. White,  766 F.2d 22,  24 (1st  Cir. 1985).             _______________________             Given our holding in the present case, we express no opinion             on this issue.                                         -21-                                          21
