
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2062                                    UNITED STATES,                                      Appellee,                                          v.                                    RALPH DE MASI,                                Defendant, Appellant.                                 ____________________        No. 92-2064                                    UNITED STATES,                                      Appellee,                                          v.                                    RONALD MARTEL,                                Defendant, Appellant.                                 ____________________        No. 92-2065                                    UNITED STATES,                                      Appellee,                                          v.                                     ROBERT PAPA,                                Defendant, Appellant.                                 ____________________        No. 92-2066                                    UNITED STATES,                                      Appellee,                                          v.                                   FRANCIS BONASIA,                                Defendant, Appellant.                                 ____________________        No. 92-2142                                    UNITED STATES,                                      Appellant,                                          v.                                   FRANCIS BONASIA,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, U.S. Senior District Judge]                                          __________________________                                 ____________________                                        Before                               Selya, Boudin, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Seth M. Kalberg, Jr. for appellant  DeMasi; Cornelius H. Kane, Jr.            ____________________                        ______________________        for  appellant  Martel; Paul  J. Garrity  for  appellant Papa;  and J.                                ________________                            __        Michael McGuinness, with whom McGuinness  and Parlagreco, was on brief        __________________            __________________________        for appellant Bonasia.            Timothy Q.  Feeley, Assistant  United States  Attorney, with  whom            __________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   October 26, 1994                                 ____________________                      STAHL,  Circuit Judge.   Following  a seventeen-day                      STAHL,  Circuit Judge.                              _____________            criminal trial,  defendants  Francis Bonasia,  Ralph  DeMasi,            Ronald  Martel, and Robert Papa  were convicted by  a jury of            various charges stemming from  the attempted armed robbery of            a Brink's armored truck.  On appeal, DeMasi, Martel, and Papa            together, and Bonasia individually,  raise a series of issues            including denial  of a  suppression motion and  challenges to            sufficiency of the evidence and various portions  of the jury            instructions.  Bonasia separately assigns error to the denial            of  severance  motions  and   an  evidentiary  ruling.    The            government  cross-appeals from the  district court's decision            in sentencing Bonasia to  depart downward from the Sentencing            Guidelines.    We affirm  the  district court  on  all issues            raised by the defendants.  At the same time, we find that the            district   court   incorrectly  interpreted   the  Sentencing            Guidelines  in fashioning Bonasia's  sentence.   We therefore            vacate Bonasia's sentence and remand for resentencing.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      Because the defendants challenge the sufficiency of            the  evidence supporting  their  convictions,  we recite  the            facts in the  light most  favorable to the  verdict.   United                                                                   ______            States v.  Innamorati, 996  F.2d 456,  469 (1st  Cir.), cert.            ______     __________                                   _____            denied, 114 S. Ct. 409 (1993).            ______                                         -3-                      Near  the  end  of  July 1991,  Federal  Bureau  of            Investigation  ("FBI") agents learned  that, sometime in late            June, DeMasi and Martel  had rented a summer campsite  at the            Pines Campground in  Amesbury, Massachusetts.   Subsequently,            during  the  noontime hour  on  the  five Tuesdays  preceding            Tuesday, September  10, 1991,  FBI agents observed  Martel at            the  parking  lot  of  the  Port  Plaza  Shopping  Center  in            Newburyport,  Massachusetts.    Throughout  that   summer,  a            Brink's armored  truck made a scheduled stop between noon and            1:00 p.m. on Tuesdays  at the Shawmut Bank in  the Port Plaza            Shopping Center.   Martel's visits to the Port  Plaza parking            lot  corresponded  with the  scheduled  stop  of the  Brink's            truck.    DeMasi accompanied  Martel  on four  of  these five            visits, missing only  the visit on Tuesday,  August 27, 1991.            Papa and defendant George Pinto1 joined Martel and  DeMasi at            the parking lot during the visits on August 20, and September            3, 1991.                      Bonasia was also present  at the Port Plaza parking            lot on Tuesday, September 3, 1991.  While at the parking lot,            he   met  separately  with   both  DeMasi  and   Martel.    A            surveillance photograph taken during  his meeting with Martel            depicts Bonasia and  Martel standing together looking  toward                                            ____________________            1.  Pinto  was  tried  and  convicted along  with  the  other            defendants  and joined  in the  consolidated appeal.   Pinto,            however, died  on  September 15,  1992,  and his  appeal  was            subsequently dismissed.                                         -4-                                          4            the  Shawmut  Bank.    Afterwards, Bonasia  remained  in  the            parking lot and  observed the  Brink's truck as  it made  its            regularly scheduled stop at the Shawmut Bank.                      On the  evening of August 26, 1991,  at around 9:45            p.m., an  FBI agent  observed Martel in  the back seat  of an            automobile, registered to Bonasia's wife, stopped in front of            the  Shawmut Bank in the Port Plaza Shopping Center.  Driving            the automobile  was  an older  white male  who fit  Bonasia's            general physical  description.   After  the vehicle  stopped,            DeMasi  left  the car,  walked over  to  the bank  and peered            inside one of its  windows.  Later that evening,  the vehicle            was  again   observed  at   DeMasi  and  Martel's   campsite.            Bonasia's own  gray Buick  was observed entering  and exiting            the  Pines Campground several times a week over the course of            the  summer,  including at  least  three  different times  on            August 30, 1991.                      At approximately  8:15 a.m. on  September 10, 1991,            DeMasi and Martel left  the Pines Campground.  At  9:30 a.m.,            they  were observed standing next  to a dark  green cargo van            which was located on the  far side of the Market Basket  Mall            directly adjacent to the Port Plaza Shopping Center.  At this            time,  FBI agents identified the license plates on the van as            stolen.   Shortly  before noon,  DeMasi and  Martel met  with            Bonasia  in  the  Port  Plaza  parking  lot.    A  series  of            photographs  taken  contemporaneously  shows   Bonasia  first                                         -5-                                          5            walking  away  from DeMasi's  automobile,  then  turning back            toward DeMasi, and finally  looking down at his watch.   That            same  morning,   Papa  and  Pinto  were   also  observed  and            photographed driving through the Port Plaza parking lot in  a            separate vehicle.                      After  meeting  with  Bonasia,  DeMasi  and  Martel            returned  to the  green van  parked  on the  far side  of the            Market Basket Mall, where they were joined by Papa and Pinto.            The  four defendants exited  their automobiles,  leaving them            unlocked  and with  the keys  in the  ignitions.2   The green            van, with Papa  driving, was next observed entering  the Port            Plaza parking lot  just prior  to the time  for the  expected            arrival of  the Brink's  armored  truck.   Upon entering  the            parking  lot, Papa drove the  green van away  from the direct            route  to the  Shawmut  Bank and  towards  where Bonasia  was            parked.  Bonasia  had just moved his  gray Buick from  a more            crowded area of  the parking  lot to a  location more  easily            accessed by the green van.                      Papa  pulled  the  van adjacent  to  Bonasia's gray            Buick  and paused.  Bonasia  then leaned forward  in his seat            and  gave Papa a "thumb's  up" signal.   After receiving this            signal,  Papa  drove  the   green  van  away  from  Bonasia's            automobile towards the Shawmut Bank.                                            ____________________            2.  Papa and  Pinto also left  the trunk of  their automobile            unlocked and open.  Moreover, each of the two cars had stolen            license plates affixed over their regular plates.                                         -6-                                          6                      Shortly  thereafter, FBI  agents stopped  the green            van and arrested  DeMasi, Martel,  Papa, and Pinto.   At  the            time of the arrests, DeMasi  was wearing brown cotton gloves,            a nylon stocking pulled down over his forehead, and a bullet-            proof  vest.   Pinto  was  wearing  similar gloves,  a  nylon            stocking,  and had  a  pair of  handcuffs  in his  waistband.            Martel also wore gloves, and a third nylon stocking was found            in the back of the van next to where he had been sitting.  In            the front seat next to where Papa had been sitting was a blue            ski  mask  and an  additional set  of  gloves.   An operating            portable scanner rested on the empty front passenger seat.  A            loaded semi-automatic nine millimeter  Uzi carbine was  found            behind  the front  seat, and  two loaded  semi-automatic nine            millimeter pistols and a  loaded six-shot revolver were found            in the rear compartment of the van.                      At  approximately the same  time, Bonasia,  who had            been walking from  a pay  phone towards his  gray Buick,  was            arrested by a Rhode Island State Trooper.  At the time of his            arrest, Bonasia was approximately five to eight feet from his            automobile.    Immediately after  the  arrest,  an FBI  agent            standing  near  Bonasia's  automobile   observed  a  pair  of            binoculars  on  the  front  passenger seat  inside  the  gray            Buick.3                                            ____________________            3.  Subsequent to Bonasia's arrest,  FBI agents conducted two            warrantless  searches  of  Bonasia's  automobile.     Bonasia            successfully moved  prior to  trial to suppress  all evidence                                         -7-                                          7                      Defendants  were  tried  together  before  a  jury.            Bonasia,   DeMasi,  Martel,  and   Papa  were   convicted  of            conspiring  and   attempting  to  commit   bank  robbery,  in            violation of 18  U.S.C.   371  and 18 U.S.C.    2113(a),  and            conspiring and  attempting to  affect interstate commerce  by            robbery, in violation  of the  Hobbs Act, 18  U.S.C.    1951.            Additionally, all defendants were convicted on four counts of            using  or  carrying a  firearm in  violation  of 18  U.S.C.              924(c).    Following  the return  of  the  verdicts  on these            charges,  additional  evidence  was  offered,  and  the  jury            subsequently found  DeMasi, Martel, and Papa  guilty on three            counts  of  violating  the  felon-in-possession  statute,  18            U.S.C.   922(g)(1).                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Alleged Pre-Trial Errors            ____________________________                      1.  Suppression Ruling                          __________________                      Our review of the decision whether to grant or deny            a suppression motion is "plenary."  United States v. Sanchez,                                                _____________    _______            943 F.2d 110, 112 (1st  Cir. 1991).  We defer, however,  to a            district court's factual findings if, on a reasonable view of            the evidence, they are not clearly erroneous.  United  States                                                           ______________            v. Beltran, 917 F.2d 641, 642 (1st Cir. 1990).                _______                                            ____________________            obtained from these searches.                                          -8-                                          8                      DeMasi,  Martel,  and Papa  challenge  the district            court's refusal  to suppress  evidence seized from  the green            van at  the time of  their arrests.4   They concede  that the            FBI had probable cause to make the arrests and that, if their            arrests  were lawful,  the van's  search and  the seizure  of            evidence were also lawful.  Defendants contend, however, that            the  arrests violated  the Fourth  Amendment because  the FBI            effected them without a warrant.  They maintain that probable            cause  arose  no  later than  early  on  the  morning of  the            arrests, when the  FBI identified the  green van that  DeMasi            and  Martel had visited as bearing stolen license plates, and            that the government should have procured an arrest warrant at            that  time.   Ultimately,  they argue  that the  government's            delay and  ultimate failure to  obtain a warrant  negates the            legality  of  their arrests  and  the  subsequent search  and            seizure of evidence.  We disagree.                        Defendants' argument rests on the  proposition that            the government's allegedly "predesigned" and "improper" delay            somehow invalidated the defendants' otherwise proper arrests.                                            ____________________            4.  Bonasia  also  contests  the   failure  to  suppress  the            evidence  seized  from  the  green  van.    It  is,  however,            axiomatic that  Fourth Amendment  rights are personal  to the            individual.    Sanchez, 943  F.2d at  112.   Bonasia  was not                           _______            present in the van during the arrest, nor does he own the van            or  claim  any  possessory  rights in  the  seized  evidence.            Hence, Bonasia  has no  legitimate expectation of  privacy on            which to base his claim.  See United States v.  Sepulveda, 15                                      ___ _____________     _________            F.3d 1161, 1194  (1st Cir.  1993), cert. denied,  114 S.  Ct.                                               _____ ______            2714 (1994).                                         -9-                                          9            The   Supreme   Court,  however,   has   refused   to  attach            significance to the  fact that the government had  ample time            to obtain a warrant but declined  to procure one.  See United                                                               ___ ______            States v. Watson, 423 U.S. 411, 423-24 (1976).  Specifically,            ______    ______            the Court stated  that "[t]he necessary inquiry  . . .   [is]            not whether there was a warrant or  whether there was time to            get one, but whether there was probable cause" at the time of            the arrest.  Id.  at 417.  Indeed,  the government in  Watson                         ___                                       ______            conceded  that  it  had more  than  sufficient  time  to have            obtained  a warrant prior to the arrest.   Id. at 414; id. at                                                       ___         ___            426 (Powell,  J., concurring)  (as much as  six days  elapsed            between time  probable cause arose  and the arrest).   Hence,            the Supreme Court has  directly rejected the underpinnings of            defendants' argument.                      The  Constitution  does not  require  a  warrant to            effect  an  arrest  in  a  public  place.    Id.  at  423-24.                                                         ___            Moreover, law enforcement agents need only possess reasonable            suspicion that a criminal  activity is occurring in order  to            stop a moving  automobile to investigate.   United States  v.                                                        _____________            Kimball,  25  F.3d  1,  6  (1st  Cir.  1994).   Here,  it  is            _______            undisputed that the FBI agents had probable cause to stop the            green  van when  it entered the  Port Plaza  Shopping Center.            The  arrests of DeMasi, Martel,  and Papa were  effected in a            public place, the middle of the shopping center  parking lot.            Accordingly, no  arrest warrant was required,  and whether or                                         -10-                                          10            not  the FBI agents could  have obtained one  prior to making            the arrests is irrelevant.                         2.  Severance Rulings                          _________________                      We now turn to Bonasia's challenges to the district            court's denial of  his motions for severance.   "Trial courts            are  afforded considerable  leeway  in determining  severance            questions."   United States v.  Pierro, No. 93-1313, slip op.                          _____________     ______            at 8 (1st Cir. July  27, 1994).  "We reverse the  decision to            deny a motion  for severance  only upon a  showing of  strong            prejudice, demonstrating a manifest abuse of discretion  that            deprived  the defendant of a  fair trial."   United States v.                                                         _____________            Nason, 9 F.3d 155, 158 (1st Cir. 1993), cert.  denied, 114 S.            _____                                   _____  ______            Ct.  1331 (1994).   Prejudice, in  this context,  "means more            than  just a better chance of acquittal at a separate trial."            United  States  v.  Boylan,  898  F.2d  230,  246 (1st  Cir.)            ______________      ______            (quotations omitted), cert. denied, 498 U.S. 849 (1990).                                  _____ ______                      Bonasia  maintains that severance  was necessary to            avoid  the  substantial  prejudice  he suffered  due  to  the            spillover effect from evidence  admitted at trial against his            codefendants,  the  effect  of codefendant  DeMasi's  pro  se                                                                  ___  __            representation, and the impact resulting when several members            of  the  jury saw  his  codefendants enter  the  courtroom in            handcuffs.5  We are not persuaded.                                            ____________________            5.  Bonasia perfunctorily raises several additional arguments            in  support of  his severance  appeal, such  as "antagonistic            defenses"  existing between  him  and  his codefendants,  his                                         -11-                                          11                      Bonasia's spillover claim fails because  he has not            met his burden  of showing substantial prejudice.   Though it            is  true that  substantial evidence  admitted at  trial dealt            with him  only indirectly, this factor alone  does not amount            to  grounds for reversal.   "It is well  settled that `[e]ven            where  large  amounts  of  testimony are  irrelevant  to  one            defendant, or where one defendant's involvement in an overall            agreement  is far less  than the involvement  of others,' the            court of appeals must be `reluctant to second guess severance            denials.'"  United States  v. O'Bryant, 998 F.2d 21,  26 (1st                        _____________     ________            Cir.  1993) (quoting  Boylan, 898  F.2d  at 246).   Moreover,                                  ______            "[w]here  evidence featuring  one defendant  is independently            admissible   against   a  codefendant,   the   latter  cannot            convincingly complain of an  improper spillover effect."  Id.                                                                      ___            Bonasia, like his  codefendants, was charged with  conspiring            and  attempting to rob the armored Brink's truck.  Thus, even            if the government had tried Bonasia separately, nearly all of            the evidence presented here  would have been admissible in  a            separate  trial  against  him  to  prove the  object  of  the                                            ____________________            inability to  obtain exculpatory testimony and  his inability            to sit  with his counsel  at trial.  Bonasia  failed to raise            these  issues  at  trial  in  support  of   his  motions  for            severance.    Moreover, on  appeal,  he  fails to  adequately            explain how he was  prejudiced by them.  We  therefore deemed            them waived.   See United States v. Lilly, 13  F.3d 15, 17-18                           ___ _____________    _____            (1st Cir. 1994) (failure to raise  arguments below results in            waiver) and United  States v.  Zannino, 895 F.2d  1, 17  (1st                    ___ ______________     _______            Cir.) (perfunctorily raised arguments waived),  cert. denied,                                                            _____ ______            494 U.S. 1082 (1990).                                         -12-                                          12            conspiracy and the attempted robbery.  Therefore, Bonasia has            not met  his  burden  of  showing  that  he  suffered  strong            prejudice.6                      Bonasia's  complaint  of  prejudice resulting  from            DeMasi's pro se  representation is equally without  merit.  A                     ___ __            codefendant's  pro se  representation is  not, without  more,                           ___ __            grounds  for severance;  a defendant  must additionally  show            that  strong  prejudice  resulted  from  the  representation.            United  States v. Tracy, 12  F.3d 1186, 1194  (2d Cir. 1993);            ______________    _____            Person v. Miller, 854 F.2d 656, 665-66 (4th Cir. 1988), cert.            ______    ______                                        _____            denied, 498  U.S.  1011 (1989);  see  also United  States  v.            ______                           ___  ____ ______________            Cross,  928 F.2d  1030,  1039-40 (9th  Cir.) (no  "compelling            _____            prejudice"    resulted    from    codefendant's     pro    se                                                                ___    __            representation),  cert. denied,  112 S.  Ct. 594  (1991), and                              _____ ______                            ___            cert.  denied, 112  S.  Ct. 941  (1992).   Bonasia,  however,            _____  ______            points us to no  specific prejudicial incidents that occurred            before  the jury.7    Bonasia therefore  cannot  convincingly                                            ____________________            6.  We also note that the district court was careful to sever            the three  felon-in-possession  counts charged  only  against            Bonasia's codefendants.  These issues were  tried to the jury            after it had returned a verdict on all the other charges.              7.  Bonasia  cites   two  statements   by  DeMasi   as  being            inflammatory  and prejudicial,  but the  first occurred  at a            pretrial  hearing   and  the  second  occurred   at  DeMasi's            sentencing.     Bonasia  also  notes  that  DeMasi  allegedly            threatened Bonasia's trial counsel over  a dispute concerning            the order in which  defendants would present final arguments.            The   alleged  threat,  however,   occurred  outside  of  the            courtroom and after the close of evidence.  Bonasia's counsel            brought the alleged threat to the attention of the judge, who            ordered   all  the   defendants  to   present  arguments   in                                         -13-                                          13            argue that  the district court should  have granted severance            on this ground.                      Bonasia's  final  claim   that  he  was  prejudiced            because the jury viewed  his codefendants enter the courtroom            in handcuffs is similarly unavailing.  This incident occurred            on  the eleventh day of  trial, when the  jury was mistakenly            brought  into the  courtroom before  the defendants  entered.            The record  reveals that, at most, no more than one or two of            the jurors briefly observed  a single defendant in handcuffs.            After the incident, the district judge separately  questioned            each juror, inquiring  whether each had either seen  or heard            anything unusual, and determined that the danger of prejudice            to  the  defendants  was   insignificant.    The  court  also            carefully cautioned each juror not to discuss the questioning            or anything he or she had  noticed with the other jurors.  We            believe that  the  district court  appropriately handled  the            incident  and   minimized  any  possible   prejudice  to  the            defendants.  The district  court therefore did not abuse  its            discretion in denying Bonasia's  renewed severance motion  on            this ground.  Cf. United  States v. Pina, 844 F.2d 1,  8 (1st                          ___ ______________    ____            Cir.  1988) (mistrial  not warranted  where three  jurors saw            defendant in shackles).                                              ____________________            alphabetical order.   Nevertheless, Bonasia's counsel  agreed            to argue fourth with DeMasi arguing last.  We cannot say that            this  change in the order of final arguments deprived Bonasia            of a fair trial.                                         -14-                                          14            B.  Alleged Trial Errors            ________________________                      1.  Evidentiary Ruling                          __________________                      Bonasia  challenges  the   admission  at  trial  of            testimony from  an FBI agent who  observed binoculars present            on the front seat of Bonasia's gray Buick following Bonasia's            arrest.   Bonasia argues  that the testimony  was incorrectly            admitted because all evidence  resulting from two warrantless            searches of  his automobile (which, he  argues, would include            any evidence  of the binoculars) had been suppressed prior to            trial.  This argument is without merit.                      In general, we  review a district  court's decision            to admit evidence for abuse of discretion.  See, e.g., United                                                        ___  ____  ______            States  v. Fisher,  3 F.3d  456, 461  (1st  Cir. 1993).   The            ______     ______            suppression  order  excluded  "all  evidence  obtained  as  a            result" of the illegal searches of Bonasia's automobile.  The            order, however, did not and could not extend to evidence that            derived  from  an independent  legal  source  apart from  the            unlawful  searches.   See Murray  v. United States,  487 U.S.                                  ___ ______     _____________            533,  536-41 (1988) (explaining independent source doctrine).            Thus,  the  question is  whether  the  FBI agent's  testimony            concerning  the binoculars  had an  independent source  apart            from the illegal searches.  On this point, it is beyond doubt            that "[i]f an article  is already in plain view,  neither its            observation  nor its  seizure would  involve any  invasion of            privacy."  Horton  v. California, 496  U.S. 128, 133  (1990).                       ______     __________                                         -15-                                          15            Furthermore,  "[t]here  is   no  legitimate  expectation   of            privacy,  shielding  that  portion  of  the  interior  of  an            automobile which  may be viewed  from outside the  vehicle by            either  inquisitive passersby  or diligent  police officers."            Texas v. Brown, 460 U.S.  730, 740 (1983) (plurality opinion)            _____    _____            (citation omitted); see also United States v. Ware,  914 F.2d                                ___ ____ _____________    ____            997,  1000 (7th Cir. 1990); Brumfield v. Jones, 849 F.2d 152,                                        _________    _____            155 (5th Cir. 1988).                      The   agent  who  testified   at  trial  about  the            binoculars participated  in neither the  illegal searches  of            Bonasia's  automobile nor Bonasia's  arrest.  At  the time of            the arrest, the agent was legitimately present in the parking            lot, standing  several feet  away from  Bonasia's automobile.            At  trial,  the  agent  merely  testified  to  observing  the            binoculars  which were in "plain  view" on the  front seat of            the  vehicle.    Therefore,  the  agent's  testimony  had  an            independent legal source apart  from the illegal searches and            was properly admitted.8                      2.  Sufficiency of Evidence                          _______________________                      We now  turn to  the defendants' challenges  to the            sufficiency  of  the  evidence.    In  assessing  evidentiary            sufficiency, "[o]ur task is to review the record to determine                                            ____________________            8.  Bonasia also challenges a reference by the district court            to  the  binoculars in  the jury  instructions and  a similar            reference by  the prosecutor in  summation.  Because  we rule            that  the testimony  concerning  the binoculars  was properly            admitted, neither of the challenged references was improper.                                         -16-                                          16            whether  the  evidence and  reasonable  inferences therefrom,            taken  as a  whole and  in the  light  most favorable  to the            prosecution, would allow a  rational jury to determine beyond            a  reasonable  doubt  that  the  defendants  were  guilty  as            charged."   United States v.  Mena-Robles, 4 F.3d  1026, 1031                        _____________     ___________            (1st  Cir.  1993),  cert.  denied,  114  S.  Ct 1550  (1994),                                _____  ______            modified  on other grounds sub  nom., United States v. Piper,            ________  __ _____ _______ ___  ____  _____________    _____            No.  94-1197 slip op. (1st Cir. Sept.  8, 1994).  In arriving            at  our  determination,  we   must  credit  both  direct  and            circumstantial  evidence of  guilt, but  "must do  so without            evaluating the  relative weight of different  pieces of proof            or  venturing  credibility  judgments."    United  States  v.                                                       ______________            Echeverri, 982 F.2d 675, 677 (1st Cir. 1993).  We need not be            _________            satisfied  that no  verdict  other than  one  of guilt  could            reasonably have  been reached;  rather, we need  only satisfy            ourselves that the record  plausibly supports the verdict the            jury did return.  Id.                                ___                      Bonasia  complains that the evidence against him is            insufficient to  support his  convictions for conspiracy  and            attempt.   He maintains  the government failed  to offer  any            evidence  that established  his  specific intent  to join  in            either the criminal conspiracy or the attempt.  Moreover,  he            argues that the evidence amassed against him does not support            a finding that he performed a "substantial step"  towards the            completion  of the  attempted robbery.   In  essence, Bonasia                                         -17-                                          17            contends that the evidence establishes only his mere presence            at  the scene of the crime, and his sporadic association with            DeMasi and Martel.  Again, we disagree.                        To prove  a charge  of  conspiracy, the  government            must establish beyond a reasonable doubt that an agreement or            working  relationship  existed,  that the  agreement  had  an            unlawful purpose, and that  the defendant voluntarily entered            into the agreement.   See  United States v.  David, 940  F.2d                                  ___  _____________     _____            722,  735  (1st Cir.  1991), cert.  denied,  112 S.  Ct. 2301                                         _____  ______            (1992).    Moreover,  the  government  must  prove  that  the            defendant  both  intended  to  agree and  to  effectuate  the            commission of the  underlying offense that was  the object of            the conspiracy.   United States v.  Piper, No. 94-1197,  slip                              _____________     _____            op. at  8  (1st Cir.  Sept.  8, 1994).    "[T]he proof  of  a            defendant's   conspiratorial   involvement  may   consist  of            indirect evidence, including reasonable inferences drawn from            attendant circumstances."  Echeverri, 982 F.2d at 679.                                         _________                      To prove  a charge of attempt,  the government must            show  beyond a  reasonable  doubt the  defendant's intent  to            commit the offense charged and that the defendant performed a            substantial  step  towards  the completion  of  the  offense.            United States v.  Argencourt, 996 F.2d  1300, 1303 (1st  Cir.            _____________     __________            1993),  cert. denied,  114  S. Ct.  731  (1994).   Respecting                    _____ ______            Bonasia's "mere presence" argument,  we have noted that "`the            culpability of a defendant's presence hinges upon whether the                                         -18-                                          18            circumstances  fairly  imply participatory  involvement.   In            other words, a defendant's "mere presence" argument will fail            in situations where  the "mere" is lacking.'"   United States                                                            _____________            v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (quoting               ________________            Echeverri, 982  F.2d at  678), petition  for cert.  filed, 63            _________                      ________  ___ _____  _____            U.S.L.W. 3066 (U.S. June 6, 1994) (No. 94-93).                        The  government's  evidence  against   Bonasia  is            clearly  sufficient to  support the  jury's finding  of guilt            beyond a  reasonable doubt  on both  the  conspiracy and  the            attempt counts.  Bonasia's presence at the September 3, 1991,            surveillance  and his August 26, 1991, nighttime visit to the            parking  lot  with DeMasi  and  Martel  plausibly support  an            inference  that  he  participated  in  the  planning  of  the            attempted  robbery.    This   inference  is  strengthened  by            Bonasia's frequent  visits over the  course of the  summer to            DeMasi and Martel's campsite at the Pines Campground.                        Moreover, Bonasia's  activities on the  day of  the            arrest tend to establish his complicity.  Even aside from the            much disputed "thumb's up"  signal,9 Bonasia's activities  on                                            ____________________            9.  Bonasia fervently maintains that we should  disregard the            FBI agent's testimony concerning  the alleged sighting of the            "thumb's  up" signal  because, under  the conditions,  such a            sighting  was  a  "physiological  impossibility."   Bonasia's            "thumb's  up" signal was observed by an FBI special agent who            was  located in an undercover van in  the parking lot some 60            to  65  yards away.   The  agent  made his  observation while            peering  through a hole in  a plastic sheet  that covered the            windows  of  the  van.    At  trial,  both  sides  introduced            photographs relating to whether the observation was possible.                                         -19-                                          19            September 10, 1991, go well beyond mere presence.  He arrived            at the parking  lot more  than an hour  before the  scheduled            arrival  of the Brink's truck and met with DeMasi and Martel.            Moreover,  an FBI  agent testified  that, shortly  before the            green van  entered the Port  Plaza parking lot,  Bonasia, who            was  pacing back and forth watching  the area, tellingly gave            the van in which the agent was riding a "very  close look" as            it  drove  up.    This evidence  supports  an  inference that            Bonasia acted as a lookout during the attempted robbery.  His            participation is further corroborated  by the fact that, upon            entering  the parking lot,  Papa drove the  green van towards            Bonasia's gray Buick and pulled to a momentary stop alongside            it before  heading to where the Brink's truck was to make its            scheduled  stop.   Significantly, prior  to this  detour, the            defendants in  the green van  temporarily had been  unable to            view  the area where they  would encounter the Brink's truck.            This underscores their need for a lookout.   In sum, there is            sufficient   evidence  to  support  a  finding  that  Bonasia            voluntarily and intentionally joined the conspiracy, and that            he performed a substantial step towards the completion of the            robbery.                      Bonasia  also challenges  the  sufficiency  of  the            evidence on the related firearm  convictions under 18 U.S.C              924(c).  He points  out that these charges were  submitted to            the jury under  an aiding and abetting theory, which requires                                         -20-                                          20            the  government to  establish  that the  defendant knew  that            weapons  would  be  used  during  the  crime.    See  Torres-                                                             ___  _______            Maldonado, 14  F.3d at  103 (to  sustain    924(c) conviction            _________            under an  aiding and  abetting theory "accomplice  `must have            known to  a practical certainty  that the principal  would be            [using] a  gun'" (quoting United  States v. Powell,  929 F.2d                                      ______________    ______            724, 728 (D.C. Cir. 1991)).  Bonasia contends that the record            lacks  any evidence  to support  a finding  that he  knew his            codefendants would  be using or carrying  firearms during the            attempted robbery.                       As  we have  noted, the  evidence adduced  at trial            more than  adequately supports a finding  that Bonasia joined            in the  conspiracy and participated in  the attempted robbery            of the Brink's truck.  This same evidence likewise supports a            finding that Bonasia knew that his four codefendants would be            using  or carrying  firearms during  and in  relation  to the            attempted robbery.  In particular, two different Rhode Island            State Troopers testified that Bonasia remained in the parking            lot  on September 3, 1991, and observed the Brink's truck for            the  entirety of its scheduled  stop.  From  this, a rational            jury could conclude that Bonasia understood the scope of what            a robbery of  an armored  truck with two  armed guards  would            entail.   It  therefore could  reasonably infer  that Bonasia            must  have  known  that  his coconspirators  would  be  using            weapons.  As we  have noted before, "[i]n the  last analysis,                                         -21-                                          21            criminal juries are not expected to  ignore what is perfectly            obvious."  Echeverri, 982 F.2d at 679; see also United States                       _________                   ___ ____ _____________            v. Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denied,               ________                                     _____ ______            486 U.S. 1009 (1988).10       DeMasi,   Martel,   and  Papa's            sufficiency challenges  need detain  us only briefly.   These            defendants   essentially  contend   that  the   evidence  was            insufficient to  establish that they had  the specific intent            to rob the  armored Brink's  truck.  They  maintain that,  at            most, the  government proved only  that they were  present in            the rear of the green van in the Port Plaza  parking lot with            some  unspecified illicit  purpose.  Defendants'  argument is            completely unconvincing.                                            ____________________            10.  In a  submission after oral  argument, Bonasia  directed            this court  to United States v.  Medina, 32 F.2d 40  (2d Cir.                           _____________     ______            1994),  in which  the Second  Circuit reversed  a defendant's            conviction for aiding and abetting a violation of 18 U.S.C.              924(c)  due to  insufficient evidence.    Notwithstanding the            defendant's  knowledge of  expected firearm  use and  role in            instigating  the planning  of the  crime, the  Second Circuit            held that  the evidence  was  insufficient to  show that  the            defendant  "consciously and  affirmatively  assisted" in  the            specific   924(c) violation.  Id. at 45.                                          ___                      Here, Bonasia's circumstances are clearly different            from  those in  Medina.   The  defendant  in Medina  was  not                            ______                       ______            present at and did  not participate in the commission  of the            underlying  felony.  Id. at 42-43.  Indeed, this fact weighed                                 ___            significantly in Second Circuit's analysis.   Id. at 46 ("Had                                                          ___            Medina  been  present  at  the attempted  robbery,  we  would            consider  whether his  conduct  at the  scene facilitated  or            promoted the carrying of a gun, or whether he benefitted from            the  gun's use  so that  he could  be said  to constructively            possess the gun; but he was  not there." (citation omitted)).            Here, Bonasia was present at and played a significant part in            the attempted armed robbery.                                             -22-                                          22                      Substantial  evidence was introduced at trial which            tended to  establish that  at least one  of these  defendants            (and all  of them  at one  time or  another) was  present and            carefully observed the scheduled stop of the Brink's truck on            each  of the  five  Tuesdays preceding  the foiled  attempted            robbery.    In  addition,  an  FBI  agent  testified that  on            September 3, 1991,  DeMasi, Martel, and  Papa waited for  and            then followed a Brink's truck as it made one of its scheduled            stops prior to reaching the Port Plaza Shopping Center.  From            this  evidence,  a  rational  jury could  conclude  that  the            defendants  intended to rob  the Brink's armored  truck.  The            evidence  therefore  supports   the  convictions  of  DeMasi,            Martel, and Papa.                      3.  Jury Instructions                          _________________                      We now turn  to defendants'  challenges to  various            portions  of the jury instructions.  Only the first of these,            which  assigns  as error  an  instruction  pertaining to  the            crediting   of  witness  testimony,  was  raised  before  the            district court.  The remainder were raised for the first time            on  appeal.  Accordingly, with the exception of the first, we            will  review all  of  defendants' challenges  only for  plain            error.  Fed. R. Crim. P. 30, 52(b); United States v. Whiting,                                                _____________    _______            28 F.3d 1296, 1308 (1st Cir. 1994), petition for cert. filed,                                                ________ ___ _____ _____            ___ U.S.L.W. ___ (U.S. Aug. 23, 1994) (No. 94-5760).                                         -23-                                          23                      Defendants  initially  challenge a  section  of the            jury  charge in which the district court gave instructions on            evaluating  witness   testimony.11    As   noted,  the  court                                            ____________________            11.  The defendants objected to the underlined language which            is set out in context below:                      How do  you deal  with witnesses?   Well,                      most of the  Government witnesses in this                      case  have been  FBI agents.  Not all  of                      them,  but  certainly  the  bulk  of  the                      testimony has come in through FBI agents.                      There's  nothing magic  about them.   You                      give the FBI agents the  same scrutiny as                      you  would  anybody  else, and  you  test                      their credibility by  listening to  them,                      determining  what  you can  from  tone of                      voice and expression of face. You try  to                      search  out the  interior logic  of their                      testimony: does it all fit together, does                      the  body  English  that  goes  with  the                      testimony  give you  a  clue.    You  may                      consider that.  It may give you a clue as                      to reliability, as to the confidence that                      the witness has.  It  may give you a clue                      as to whether the defendant is lying.  In                      short, you use all of the techniques that                      you  have  developed  in  your  lives for                      determining  whether  somebody is  giving                      you reliable information.                           You do  this all  the time.   You go                           ____________________________________                      and   buy   a  major   appliance   or  an                      _________________________________________                      automobile.  You  listen to the salesman.                      _________________________________________                      You listen to  political candidates,  you                      _________________________________________                      try  to  sort out  disputes  in  your own                      _________________________________________                      household,  perhaps  the children  or the                      _________________________________________                      in-laws  or  the neighbors  or something,                      _________________________________________                      and you try to  make a judgment about who                      _________________________________________                      is giving you  the closest  approximation                      _________________________________________                      of the truth.  That's probably about what                      _________________________________________                      we  get  at  best.  And you  have  to  be                      _________________________________________                      satisfied  that  all  of   these  stories                      _________________________________________                      together, all of this testimony together,                      _________________________________________                      with its blemishes and defects, satisfies                      _________________________________________                      you  beyond  a  reasonable doubt  of  the                      _________________________________________                      defendant's guilt before you can return a                      _________________________________________                      finding of guilty.                      __________________                                         -24-                                          24            instructed  the jury  that,  in assessing  the testimony,  it            should utilize the experience and skills it had attained from            making  everyday  judgments  and  decisions.    Moreover, the            district  court explained that in rendering these assessments            "you try to make a judgment  about who is giving the  closest            approximation  of  truth."   Defendants  contend  that  these            instructions  trivialized  the fact-finding  function  of the            jury  and   had  the  overarching  effect   of  reducing  the            government's burden of proof.  We are unpersuaded.                      It is beyond dispute that the government must prove            every element of a charged offense beyond a reasonable doubt.            In  re Winship,  397  U.S. 358,  364  (1970).   Failure of  a            ______________            verdict to be based on a finding of guilt beyond a reasonable            doubt is  a structural  error of constitutional magnitude and            is  not  subject  to  harmless  error  review.   Sullivan  v.                                                             ________            Louisiana, 113 S.  Ct. 2078, 2082 (1993).   It is  also true,            _________            however,  that each  piece of  evidence and  every "inference            forming  a part of the  mosaic making up  the jury's ultimate            finding of guilt beyond a reasonable  doubt need [not] itself                                            ____________________                           Now,   you  can   take  part   of  a                      witness's  story,  part  of  a  witness's                      testimony  and reject  others.   You  can                      take the  part that seems to  be reliable                      and  reject what  is unreliable,  or what                      appears to be  unreliable.  You can  also                      say, well, if this  man is unreliable  in                      one respect,  I  won't trust  him in  any                      other.   But  it  is up  to  you.   Those                      judgments are yours.  That's  what you're                      here for.                                         -25-                                          25            be established beyond a reasonable doubt."   United States v.                                                         _____________            Corgain,   5  F.3d  5,  10  (1st  Cir.  1993).    Hence,  the            _______            appropriate  question  on  review  is  "whether  there  is  a            reasonable   likelihood  that   the   jury   understood   the            instructions to  allow conviction based on proof insufficient            to  meet the Winship standard."   Victor v.  Nebraska, 114 S.                         _______              ______     ________            Ct.  1239,   1243  (1994).    Moreover,   in  reviewing  jury            instructions, we measure each instruction,  not in isolation,            but  within the context  of the  charge as  a whole.   United                                                                   ______            States v. Akinola, 985 F.2d 1105, 1112 (1st Cir. 1993).            ______    _______                      The  challenged instructions do not endeavor to set            forth the  government's burden  of proof (which  the district            court correctly  described); instead, they guide  the jury in            evaluating   and  considering  the   credibility  of  witness            testimony.  This  is not  a situation in  which the  district            court has attempted to define reasonable doubt by analogizing            to the  standard employed  by individuals in  the significant            decisions  of daily  life.    See,  e.g.,  United  States  v.                                          ___   ____   ______________            Nickens, 955 F.2d 112, 119-120 (1st  Cir.), cert. denied, 113            _______                                     _____ ______            S.  Ct. 108 (1992);  Dunn v. Perrin, 570  F.2d 21, 24-25 (1st                                 ____    ______            Cir.), cert. denied, 437 U.S. 910 (1978).  Instead, the court                   _____ ______            was merely  exhorting the  jury  to fulfill  its function  by            bringing common sense  judgment to bear on  the evaluation of            the  different and  inevitably  conflicting testimony  of the                                         -26-                                          26            various  witnesses.    This  certainly  does  not  constitute            reversible error.                      Moreover, as defendants concede, the district court            accurately set forth the proper standard for the government's            burden of proof  in other sections of the charge.  Our review            of the instructions reveals  that the district court referred            to  the "beyond  a reasonable  doubt" standard  no  less than            twelve times in the nine pages of jury instructions preceding            the isolated  section  challenged here.    This  overwhelming            number  of correct  references  negated any  chance that  the            contested statements were misconstrued by the jury as somehow            reducing the government's burden of proof.  See United States                                                        ___ _____________            v.  Glenn, 828 F.2d 855,  861 (1st Cir.  1987) (no reversible                _____            error  where  jury could  not have  been  misled in  light of            numerous  other  correct  instructions about  presumption  of            innocence and government's burden).                      Defendants, as  we have  noted, also raise  for the            first  time  several additional  objections  to the  district            court's jury instructions.   Bonasia argues that the district            court  erred by  giving an  improper "Pinkerton"  instruction                                                  _________            concerning  Bonasia's liability  for  the substantive  crimes            committed  by his  coconspirators.   See Pinkerton  v. United                                                 ___ _________     ______            States, 328  U.S.  640 (1946)  (approving  instructions  that            ______            permitted jury to convict a conspirator for a coconspirator's            acts that  were committed in furtherance  of the conspiracy).                                         -27-                                          27            DeMasi, Martel, and Papa claim that  the district court erred            by  incorrectly  defining the  elements  of  attempt, and  by            creating a  logical progression of steps  that inevitably led            the  jury to  a  guilty  verdict.    In  addition,  all  four            defendants object  to various isolated statements which, they            maintain, were prejudicial, assumed various material facts as            true, and deprived them  of their Sixth Amendment right  to a            jury trial.  Though  a few of the instructions  identified by            the   defendants  are  problematic,   we  cannot   say  that,            individually or collectively, they rise to the level of plain            error.12                                            ____________________            12.  In  his  reply   brief,  defendant  Bonasia  makes   one            additional  challenge to  the  jury  instructions.    Bonasia            argues  that a portion of  the charge is  nearly identical to            language  this court  held to  be reversible error  in United                                                                   ______            States  v.  Harrigan,  586 F.2d  860  (1st  Cir.  1978).   In            ______      ________            Harrigan, the  district court  instructed the jury  "that the            ________            defendant's evidence  has no greater function  than simply to            raise a  reasonable doubt in  your minds,  if it  does.   The            defendant is not required  to go any  further."  Id. at  862.                                                             ___            In the  present case, the  district court stated  that "[t]he            defendants'  efforts have one  purpose only and  no more than            one  purpose.   And  that  is  to create  reasonable  doubt."            Bonasia   maintains  that   this   instruction  created   the            impression  that  the  defendant  had  the  burden  to  prove            reasonable doubt.                      Neither  Bonasia   nor  any  of   his  codefendants            objected to this portion  of the charge at trial.   Moreover,            Bonasia raised this issue  only in his reply brief.   As this            court has consistently held, issues raised for the first time            in  appellant's  reply  brief are  generally  deemed  waived.            United States v.  Brennan, 994  F.2d 918, 922  n.7 (1st  Cir.            _____________     _______            1993); United States  v. Michaud,  925 F.2d 37,  43 n.8  (1st                   _____________     _______            Cir. 1991); United  States v. Benavente Gomez,  921 F.2d 378,                        ______________    _______________            386 (1st Cir. 1990).  So  it is here.  And, in any  event, we            discern no plain error in this instruction.  Unlike Harrigan,                                                                ________            the jury was not told that the defendant was "required" to do            anything; instead,  it was  only told, if  somewhat clumsily,                                         -28-                                          28                      Under "plain error" review, the burden falls on the            appellant to show that there  is an error, that the  error is            "clear" or  "obvious," and that it  has affected "substantial            rights."  United  States v.  Olano, 113 S.  Ct. 1770,  1776-9                      ______________     _____            (1993); Whiting, 28  F.3d at 1308.   In most cases,  an error                    _______            will be found to have "affect[ed] substantial rights" only if            inter  alia the  error was  prejudicial such  that it  had an            _____  ____            impact  on the outcome  of the trial.   Olano, 113  S. Ct. at                                                    _____            1778.                      Even then, our review is discretionary.   Id.  "[A]                                                                ___            plain  error affecting  substantial rights does  not, without            more," warrant the exercise of this discretion.  Id. at 1779.                                                             ___            A  reviewing   court  should  limit  the   exercise  of  this            discretion  to cases where the failure to act would result in            a  "miscarriage  of  justice"  such  as  "the  conviction  or            sentencing of an actually innocent defendant."  Id.  In other                                                            ___            words,  "we  review  only  `blockbusters:  those  errors   so            shocking  that they seriously affect the fundamental fairness            and  basic integrity  of the  proceedings  conducted below.'"            United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st Cir.            _____________    _____________            1991) (quoting  United States  v. Griffin,  818 F.2d  97, 100                            _____________     _______            (1st Cir.), cert. denied, 484 U.S. 844 (1987)).                           _____ ______                      We  first  consider  Bonasia's  objection   to  the            district court's inclusion of an allegedly improper Pinkerton                                                                _________                                            ____________________            what defendants were trying to do in this case.                                              __ ____ ____                                         -29-                                          29            instruction.13   Bonasia  argues  that he  was prejudiced  by            the court's  failure to  limit liability under  the Pinkerton                                                                _________            doctrine  to only  those reasonably  foreseeable acts  of his                                     __________  ___________            coconspirators  done  in   furtherance  of  the   conspiracy.            Bonasia claims  that the  failure to include  the "reasonably            foreseeable"  qualification  was  tantamount  to  a  directed            verdict in favor of the government on the 18 U.S.C.    924(c)            charge.                      Because the government conceded error in its brief,            we will assume arguendo that the district court's formulation                           ________            of  the  Pinkerton  charge  was erroneous.    The  government                     _________            nevertheless maintains that the Pinkerton instruction did not                                            _________            prejudice Bonasia.   The government argues  that the district            court's  previous instruction  under an  aiding and  abetting            theory -- that in order to convict Bonasia the jury must find            that  he knew his coconspirators  would use or carry firearms                                            ____________________            13.  Bonasia objects to the following portion of the charge:                           I  should  also  point  out  another                      principle of law which has to do with Dr.                      Bonasia's liability.  If you find that he                      was  a  member  of  the  conspiracy, then                      under  the holding  of  the  case  called                      Pinkerton versus the United States, he is                      liable for  all of the acts  taken by the                      co-conspirators  during  the  time  -  or                      starting with the  time that he became  a                      member of the conspiracy.  So a member of                      a conspiracy  is  liable for  all of  the                      acts   done   in   furtherance   of   the                      conspiracy  by  the  other  conspirators.                      And that has to do with this gun charge.                                         -30-                                          30            during the attempted robbery -- alleviated any possible harm.            The inclusion of a correct instruction directly contradicting            an erroneous  one, however, will not  necessarily rectify the            error   because  a  reviewing  court  cannot  determine  with            certainty which  of the  two irreconcilable instructions  the            jury  followed.  See Francis  v. Franklin, 471  U.S. 307, 322                             ___ _______     ________            (1985); Hill v. Maloney,  927 F.2d 646, 651 (1st  Cir. 1990).                    ____    _______            Accordingly,  because we  have  no way  of determining  which            instruction the  jury applied, we must instead ask whether we            can affirm the conviction based on the erroneous instruction.                      Essentially, Bonasia claims that the district court            omitted an element in its Pinkerton instruction, and that the                                      _________            omission,  a fortiori,  precluded  the jury  from making  the                       _ ________            necessary factual  finding to  support his conviction.   What            the  law demands  in order  to show  that a  district court's            omission or  misdescription of  an element  did not affect  a            defendant's "substantial rights" is  not entirely clear.  See                                                                      ___            Whiting,  28 F.3d at 1309.  Nevertheless, even under the most            _______            rigorous harmless error standard  suggested, an error will be                     ________ _____            declared  harmless in those rare cases where no rational jury            could  have found what it actually did find and not also find            the omitted or misdescribed  element.  Carella v. California,                                                   _______    __________            491  U.S.  263,  270-71  (1989) (Scalia,  J.,  concurring  in            judgment).  This is such a case.                                         -31-                                          31                      First,  even under  the contested  instruction, the            jury was  required to  find that Bonasia  conspired with  the            other defendants to rob the armored truck.  As we have stated            above,  the evidence  amply  supports the  jury's verdict  of            guilt on this  issue.  Next, we  have noted the  strong nexus            between the  use or carrying  of firearms and  the successful            completion of the robbery of an armored truck.  See supra  at                                                            ___ _____            20-21.  This  is not  a case where  the government sought  to            hold  a defendant  liable for  the substantive crimes  of his            coconspirators that were not  an integral part of  the direct            object of the conspiracy.  Rather, the use of firearms during            and in relation to the attempted robbery of the Brink's truck            was part and parcel  to the object of the  conspiracy itself.            Therefore, we  find that  no rational  jury could  have found            that Bonasia conspired to  rob the Brink's truck in  the Port            Plaza  Shopping Center  on September  10, 1991,  without also            finding that the  use of  firearms in that  robbery would  be            reasonably foreseeable.14                                            ____________________            14.  During oral argument, Bonasia's counsel belatedly argued            that the  legal standard set  forth by  the district  court's            aiding and  abetting instruction  was inadequate in  light of            United  States  v. Torres-Maldonado,  14  F.3d  95 (1st  Cir.            ______________     ________________            1994), petition for cert. filed,  63 U.S.L.W. 3066 (U.S. June                   ________ ___ _____ _____            6,  1994) (No. 94-93).   In Torres-Maldonado,  we noted that,                                        ________________            with regard to 18 U.S.C.   924(c) convictions under an aiding            and abetting  theory, "[i]t  is well  settled .  . . that  an            accomplice `must have known to a practical certainty that the            principal  would be  [using] a  gun.'"   Torres-Maldonado, 14                                                     ________________            F.3d at 103 (quoting  United States v. Powell, 929  F.2d 724,                                  _____________    ______            728 (D.C. Cir. 1991)).  Here, the district court specifically            instructed:                                         -32-                                          32                      DeMasi,  Martel,  and Papa  also  contend  that the            district  court  incorrectly  instructed  the  jury   on  the            elements of attempt.   The  district court did  not give  the            "substantial  step"  instruction  which  has  been  uniformly            adopted by the  federal courts, see United  States v. Rivera-                                            ___ ______________    _______            Sola, 713 F.2d 866, 869 (1st Cir. 1983), but instead stated:            ____                           One  thing  more is  required beyond                      intent.  And this is a fussy point.  Mere                      preparation is not enough.  There must be                      some act  taken.   You must be  satisfied                      that the defendants or the defendant whom                      you are considering set himself on a path                      of action which, but for the intervention                      of the FBI, would  in the ordinary course                      have led to the commission of the crime.                                            ____________________                      You have to be satisfied in order to hold                      Dr. Bonasia  liable that he  had intended                      to   participate  and  that   he  had  an                      expectation  - you  must  find  beyond  a                      reasonable   doubt   that   he   had   an                      expectation that firearms  would be  used                      in  carrying  out  the  crimes,  that  he                      should  have,   that  he  would   in  the                      ordinary course have known  that firearms                      were to be  used.  You  don't have to  be                      satisfied that he saw  them, but you have                      to  be  satisfied that  when,  if he  did                      undertake to be a part of this plan, that                      he understood that part  of the plan  was                      going to  involve  the use  of  firearms,                      having  in  mind  that  the  Government's                      position is that the  plan was to hold up                      the armored car and take the banks' money                      out of it.                      Bonasia waived  this issue  by failing to  raise it            prior to oral  argument.   See Sheinkopf v.  Stone, 927  F.2d                                       ___ _________     _____            1259, 1263  (1st  Cir.  1991)  (issues raised  only  at  oral            argument are waived).   In  any event, we  are not  convinced            that the district court's instruction was incorrect.                                         -33-                                          33                      At   oral  argument,  counsel  for  the  defendants            conceded that  the instruction  that the defendant  must "set            himself on a path  of action which, but for  the intervention            of the  FBI, would  in  the ordinary  course have  led to  he            commission  of  the  crime"  actually set  forth  a  narrower            standard than  provided by a "substantial  step" instruction.            Nonetheless,   defendants'   counsel   maintained  that   the            preceding  sentence  ("There   must  be  some  act   taken.")            permitted  the jury  to  find  the  defendants  guilty  on  a            standard  substantially  less  than  that  called  for  in  a            substantial  step  instruction.    Defendants'   argument  is            baseless.                        When the  district court's  instruction is  read in            context,  as set forth above,  it is fully  apparent that the            challenged statement was qualified by the subsequent "path of            action" language.   Plainly, the jury was instructed that not            just any act  taken but only those  acts that would have  set            the defendants  on the "path of action" inevitably leading to            the commission of the crime would  be sufficient to establish            the charge of  attempt.  Because defendants concede  that the            "path  of action"  language established  a narrower  standard            than  that required  by  law, they  were  not harmed  by  the            district court's variance from the usual instruction.                      DeMasi,  Martel, and  Papa  also contend  that  the            district court led  the jury through a progression of logical                                         -34-                                          34            steps  to   the  inevitable  result  of   a  guilty  verdict.            Primarily,  defendants assert that  by juxtaposing a scenario            which the  district court  suggested would not  constitute an            attempt  against the  facts of the  case, the  district court            strongly   implied   that   an   attempt    had   occurred.15            Defendants maintain further that the district court continued            the  progression by stating later  that "it's hard to imagine            an  attempt being  accomplished without  there having  been a            conspiracy, without  there  being an  agreement."    Finally,            defendants complain  that the district  court compounded  the            error when  it opined that  "[f]our guys  end up in  a truck;                                            ____________________            15.  The contested section of the charge is as follows:                      Now, as  I say, mere  preparation is  not                      enough.    This  evidence of  surveilling                      would  not  have been  enough.   I  would                      suppose that, let's say on September 10th                      they got opposite the McDonald's and they                      said,  ["]gee, its hot  in this truck and                      all these  things  I'm wearing  are  very                      uncomfortable and sticky.  Let's quit the                      whole  thing and  go into  McDonald's and                      get a milk shake.["]   At that point, the                      progress  would  have  stopped.    And  I                      suggest to you it probably would not have                      been close  enough to be an  attempt.  It                      was  not  stopped  by  the  FBI  if  they                      stopped  themselves.   But  then you  can                      consider from  all  of the  evidence  you                      have  heard  about  the  passage  of  the                      truck, where the  Brink[']s truck, in the                      ordinary course, would have been, whether                      they had  set  themselves on  a  path  of                      action which, but for the intervention of                      the FBI,  would  in the  ordinary  course                      have led to the commission of the crime.                                          -35-                                          35            common  sense would tell you that  there had to be some prior            agreement to be there."                        Once    again,    because   defendants    made   no            contemporaneous objection to this portion of the jury charge,            we engage only  in a plain error  review, and once  again, we            find  none.  Defendants rely  on United States  v. Spock, 416                                             _____________     _____            F.2d  165,  180-83  (1st  Cir.  1969),  where  we  held  that            instructions   that   present  the   jury  with   a  "logical            progression" are forbidden.  What was  particularly offensive            in Spock, however, was the submission of a special verdict to               _____            the jury  in a  criminal trial.   We  initially note  that no            special verdict was used here.  Moreover, because they do not            purport  to  instruct  the  jury  on  the  intent  element of            attempt, we  do not believe that  the challenged instructions            led the jury to the inevitable conclusion that an attempt had            occurred.      Indeed,   in   the   preceding  paragraph   of            instructions, the  district  court carefully  instructed  the            jury on the element  of intent, which was the  most contested            issue at trial, stating  that:  "Attempt is a  different type            of offense.  For an  attempt there has to be the intent to do            the illegal act. . . .  In the attempt situation, you have to            find  intent. .  . .   And  again, you  have to  be satisfied            beyond a  reasonable doubt."   Finally,  the court  ended the            paragraph that included the challenged illustration with  the                                         -36-                                          36            reminder, "All right.  So there are two elements of attempt."                                                ___ ________ __ _______            (Emphasis added.)                      In sum,  we are  not persuaded that  the challenged            instruction created a logical progression that inevitably led            the jury to a guilty verdict.16                      Finally,  all  four  defendants  challenge  various            isolated  statements which  they  contend  were  prejudicial,            assumed controverted material facts  as true and deprived the            defendants  of  their  Sixth  Amendment  right  to  trial  by            jury.17    Though  it  might  have  been  preferable  if  the                                            ____________________            16.  We also  rule that neither of  two additional statements            that DeMasi, Martel, and  Papa contend buttress their logical            progression  argument constitute  plain  error.   Even if  we            assume that the statements  prejudiced the defendants to some            degree,  we note  that the evidence  with respect  to DeMasi,            Martel, and Papa was  overwhelming.  There is no  chance that            innocent  defendants  were  convicted  as  a  result  of  the            challenged   statements.    Accordingly,  no  miscarriage  of            justice occurred.            17.  First,  DeMasi, Martel,  and Papa  contest  the district            court's following comment  on the evidence: "But  you do have            some things  about  which there  are  no mistakes,  the  most            significant being that four of these defendants were found in            the truck  with guns."   Bonasia  makes  a similar  complaint            about  the reference  to "robbing  from a  bank, and  you had            evidence about that."   DeMasi, Martel, and Papa  also object            to  the   following  statement   made  by  the   court  while            elaborating  on the action  element of the  crime of attempt:            "Now as I say, mere preparation is not enough.  This evidence                                                                 ________            of surveilling  would not  have been  enough."   They further            ______________            find  offensive  the  court's reference  to  "this  attempted            robbery" which it made  while instructing on the 18  U.S.C.              924(c)  firearm charges.   In  addition, DeMasi,  Martel, and            Papa challenge a comment the  court made while explaining the            aiding and abetting theory on which  Bonasia was charged: "He            himself did not -- was not in the truck.  He did not make the                                                      ___________________            attempt.  But he is charged with being an aider and abettor."            _______            Lastly, Bonasia challenges  the comment: "Four guys end up in                                         -37-                                          37            statements had not been made, we cannot say that  any of them            so infected the entire charge to the jury as to undermine the            fairness of the trial.                      In   analyzing  the   prejudicial  effect   of  the            challenged  statements,  we  note  that  the  district  court            cautiously admonished  the jury that  "when I talk  about the            evidence,  it's  my memory  only.    It's  your  memory  that            governs."  The challenged statements, though problematic, are            isolated snippets culled from  over thirty pages of generally            cautious, careful,  and correct  instructions.  At  most, the            statements were inadvertent slips  of the tongue with limited            prejudicial force.  See United States v. Lebron-Gonzalez, 816                                ___ _____________    _______________            F.2d  823, 830 (1st Cir.)  (no plain error  because judge did            not supplant jury as  fact finder as a result  of inadvertent            slip of tongue in  jury charge), cert. denied, 484  U.S. 843,                                             _____ ______            and cert. denied 484 U.S. 857 (1987).                                  ___ _____ ______                      Moreover, as  we have noted,  the evidence  against            DeMasi, Martel  and Papa was  overwhelming.  We  further note            that, with respect to Bonasia, the evidence was likewise more            than sufficient.    We  have  no  fear  that  the  challenged            statements  caused  the  conviction of  innocent  defendants.            After carefully  reviewing the record, we  are confident that            no miscarriage of justice occurred.                                                 ____________________            a truck,  common sense would  tell you that  there had to  be            some prior agreement to be there."                                         -38-                                          38                      4.  Other Matters                          _____________                      Bonasia makes two final arguments.   First, Bonasia            contends  that in  rebuttal the  prosecution mischaracterized            what  certain FBI  surveillance logs  stated with  respect to            him.     Nonetheless,  Bonasia  failed  to   object  to  this            characterization   at  trial.      "In  the   absence  of   a            contemporaneous   objection,   we   review   allegations   of            prosecutorial misconduct for plain error, and will overturn a            jury  verdict only  if the  government's closing  argument so            poisoned  the well  that it  is likely  that the  verdict was            affected."   United States v. Tuesta-Toro,  No. 93-2182, slip                         _____________    ___________            op.  at 12 (July 25, 1994) (internal quotations omitted).  We            are confident  that there is no likelihood  that the isolated            statement affected the outcome of the trial.                      Finally,   Bonasia   maintains    that,   if    not            individually, the cumulative effect of the various complaints            he raises deprived  him of  a fair  trial.   Because we  have            found that none  of Bonasia's individual  complaints resulted            in substantial prejudice and that most are completely without            merit, we reject the final contention that his conviction was            tainted by  cumulative error.  See  id. (rejecting cumulative                                           ___  ___            error argument); see also United States v. Barnett, 989  F.2d                             ___ ____ _____________    _______            546, 560  (1st Cir.)  ("The Constitution entitles  a criminal            defendant to  a fair trial,  not a perfect  one." (quotations                                         -39-                                          39            omitted)), cert. denied,  114 S. Ct.  148, and cert.  denied,                       _____ ______                    ___ _____  ______            114 S. Ct. 149 (1993).               C.  Alleged Post-Trial Errors            _____________________________                      On   cross-appeal,   the   government  raises   two            objections  to  the sentencing  of  Bonasia  by the  district            court.    The  government challenges  both  the  role-in-the-            offense reduction awarded Bonasia  and the downward departure            of  twenty-nine months granted  him because of  his record of            charitable work  and community service.   We discuss  each in            turn.18                      A sentencing court's  decision to award  a role-in-            the-offense reduction  "is heavily dependent on  the facts of            the particular case," U.S.S.G.   3B1.2, comment.  (backg'd.).            Accordingly,  we review these  fact-bound determinations only            for clear error.  United States v. Ocasio, 914 F.2d  330, 333                              _____________    ______            (1st Cir. 1990).   In reviewing decisions to depart  from the            Sentencing  Guidelines, our review  is broader.   In a three-                                            ____________________            18.  DeMasi, Martel, and Papa  also appeal the calculation of            their sentences, contending that  the district court erred in            finding  the  value  of  the  intended  loss  for  sentencing            purposes.   The district court's determination  was a factual            finding which we  review only  for clear error.  18 U.S.C.               3742(e).   The district court found the value of the intended            loss  to  be   $400,000,  which  was  the   lowest  of  three            alternatives presented in the Presentence Report.  Defendants            argue that a fourth scenario existed where the intended  loss            would have  been only $24,000.   After reviewing  the record,            however, we cannot say the district court's finding was clear            error.   See United  States v. Morillo, 8  F.3d 864, 871 (1st                     ___ ______________    _______            Cir.  1993) ("Where . .  . evidence fully  supports more than            one  inference,  a  sentencing  court's  choice  from   among            plausible alternatives cannot be clearly erroneous.").                                         -40-                                          40            step analysis, we examine "(1) whether  the reasons the court            gave  for departing  are  of the  sort  that might  permit  a            departure  in an  appropriate  case; (2)  whether the  record            supports a  finding of  facts demonstrating the  existence of            such reasons; and (3) whether,  given the reasons, the degree            of departure is reasonable."   United States v. Mendez-Colon,                                           _____________    ____________            15 F.3d 188, 189 (1st Cir. 1994).  With respect  to the first            prong of the analysis, we generally review a district court's            determination that  a case is unusual and therefore worthy of            departure  "with  full awareness  of,  and  respect for,  the            trier's  superior  feel for  the  case."    United States  v.                                                        _____________            Rivera,  994   F.2d  942,  952  (1st   Cir.  1993)  (internal            ______            quotations  omitted); see  also United  States v.  Pelkey, 29                                  ___  ____ ______________     ______            F.3d 11, 14  (1st Cir.  1994).  In  conducting this  inquiry,            however, we do not  owe deference to the district  court when            the  issue  turns  on  purely legal  questions  of  guideline            interpretation  or whether  the  correct legal  standard  was            applied.  See Rivera, 994 F.2d at 950-52.                      ___ ______                      Turning to the government's first argument, we note            that   the   district   court   determined   that   Bonasia's            participation in  the attempted robbery fell  between a minor            and a  minimal role, thus warranting  a three-level reduction            in  his base offense level.   See U.S.S.G.    3B1.2 (granting                                          ___            reductions   in  base   offense   level  to   less   culpable            participants in  the  criminal  activity).    The  government                                         -41-                                          41            maintains,  however,  that the  district  court impermissibly            based this determination on the fact that Bonasia's role as a            lookout  was  less  reprehensible   than  the  roles  of  his            codefendants   and  not  because  his  conduct  evinced  less            culpability.     We   do  not   find  the   district  court's            determination to be clearly erroneous.                      A  defendant  can  receive   a  role-in-the-offense            reduction  by  fulfilling  two  requirements.     First,  the            defendant  must  convince  the  sentencing  court   that  the            defendant was less culpable than most  of the participants in            the  criminal activity.  See U.S.S.G.   3B1.2, comment. (n.1-                                     ___            3);  United States v. Gregorio,  956 F.2d 341,  344 (1st Cir.                 _____________    ________            1992).   Second, the sentencing court must  also be persuaded            to  find  that  the  defendant was  less  culpable  than  the            "average person" who commits the same offense.  Gregorio, 956                                                            ________            F.2d  at 344; cf. U.S.S.G.   3B1.2, comment. (backg'd).  Here                          ___            the record reasonably supports the district court's  decision            to  grant  a reduction.    Specifically,  the district  court            plausibly  inferred  from  the   totality  of  the   evidence            (including, for example, the  fact that Bonasia attended only            one  of  the Tuesday  surveillance  meetings)  not only  that            Bonasia  played  a  limited  part  in  the  planning  of this            particular  offense, but  also that,  within the  universe of            individuals  convicted of  conspiring  and attempting  to rob            banks with  the aid  of firearms,  Bonasia was less  involved                                         -42-                                          42            (and,  hence,   less  culpable)  than  most.     We  believe,            therefore, that  the  district court's  determination is  not            clear error.                      The   government's  next  contention  is  that  the            district  court  erred  in  making a  downward  departure  of            twenty-nine months in the  calculation of Bonasia's sentence.            The government  complains that in deciding  to depart because            of  Bonasia's  history  of  charitable   work  and  community            service,  the  court  improperly  compared  Bonasia  to  "the            typical  bank  robber"  and  not  to  other  defendants  with            comparable  records  of  good  works.    We  agree  with  the            government on this issue.                              Before a sentencing court  may depart in a specific            case, it must ask:                      1)   What   features   of    this   case,                      potentially,   take    it   outside   the                      Guidelines'  "heartland" and make of it a                      special, or unusual, case?                      2)   Has   the  [Sentencing]   Commission                      forbidden   departures  based   on  those                      features?                      3)   If   not,   has   the   [Sentencing]                      Commission encouraged departures based on                      those features?                      4)   If   not,   has   the   [Sentencing]                      Commission  discouraged  departures based                      on those features?            Rivera,  994  F.2d at  949.   A  court's  subsequent analysis            ______            varies  depending  on  the  category  in  which  the  feature            justifying departure falls.                                         -43-                                          43                      If the  feature or reason for  departure falls into            the discouraged  category, the  mere presence of  the feature            (no matter  how unusual that  mere presence might  seem) will            not  by   itself  take  the  case   outside  the  Guidelines'            "heartland."    Id.  at  948.    This  is  true  because  the                            ___            philosophy underlying the Guidelines dictates that whether or            not these features are  present in a case is  "not ordinarily            relevant" in  determining  a defendant's  sentence.   Id.   A                                                                  ___            discouraged-feature  departure  is   warranted  only  if  the            "nature and  magnitude" of the feature's  presence is unusual            or special.   Id.  To  make this determination, a  court must                          ___            ask "whether the case differs from the ordinary case in which            those [discouraged]  features are present."  Id.  at 949; see                                                         ___          ___            also United States  v. Jackson,  30 F.3d 199,  202 (1st  Cir.            ____ _____________     _______            1994); United States v.  Sclamo, 997 F.2d 970, 973  (1st Cir.                   _____________     ______            1993).    Moreover, before  a  court may  lawfully  decide to            depart, "it  must  explain how  the case  (compared to  other            cases where the [discouraged] reason is present) is special."            Rivera, 994 F.2d at  951; see also Jackson,  30 F.3d at  202;            ______                    ___ ____ _______            Sclamo, 997 F. 2d at 973.             ______                      Whether or  not departure for a  certain feature is            discouraged turns, of course, on a reading of the Guidelines.            Specifically, the Sentencing Guidelines provide  that "civic,            charitable, or public service,  . . . and similar  prior good            works are  not ordinarily  relevant in determining  whether a                                         -44-                                          44            sentence should be  outside the applicable guideline  range."            U.S.S.G.    5H1.11, p.s.19   Therefore, a  defendant's record            of  charitable  work and  community  service  falls into  the            discouraged-feature category of justifications for departure.            See Rivera, 994 F.2d at 948.              ___ ______                      In the  present case,  the district court  chose to            depart from the Guidelines  because Bonasia's charitable work            and community service stood apart from what  one would expect            of  "the typical bank robber."   The court,  however, did not            compare Bonasia's history of charitable and community service            to the histories of defendants from other cases who similarly                                            ____________________            19.  The  fact  that     5H1.11  was  not  promulgated  until            November 1,  1991, after the  offense conduct but  before the            sentencing in this case,  does not make it irrelevant  to the            present  issue.  The district  court must use,  subject to ex                                                                       __            post facto concerns, the Guidelines that are in effect on the            ____ _____            date  of sentencing.  18  U.S.C.   3553(a)(4).   Moreover, 28            U.S.C.       994(e)   reveals   Congress's   intention   that            consideration  of factors such  as "employment record, family            ties and responsibilities, and  community ties" are generally                                            _________ ____            inappropriate in sentencing decisions.  Hence, the  enactment            of    5H1.11 merely clarified the Guidelines and did not mark            a  substantive change.  Cf. Isabel v. United States, 980 F.2d                                    ___ ______    _____________            60, 62-63  (1st Cir. 1992) (clarifications  of the Guidelines            may be applied retroactively,  substantive changes may  not);            but see United States v. O'Brien,  18 F.3d 301, 302 (5th Cir.            ___ ___ _____________    _______            1994)  (eschewing reliance on    5H1.11 due to  ex post facto                                                            __ ____ _____            concerns, nonetheless vacating departure  because defendant's            charitable  work  and  community  service  were  products  of            defendant's  professional  record  and  professional  skills,            which  are  discouraged  factors  under    5H1.2  (vocational            skills) and   5H1.5  (employment record)), petition for cert.                                                       ________ ___ _____            filed, 63 U.S.L.W.  3092 (U.S. July  18, 1994) (No.  94-159).            _____            In any  event, Bonasia did not challenge  the use of   5H1.11            in the court  below and, therefore, has waived  any challenge            to its applicability in his case.                                         -45-                                          45            had commendable community service  records.  The court stated            that:                       If this  was a securities  fraud case  or                      bank  fraud  case, probably  the downward                      departure   would  not   be  appropriate.                      Because  presumably  people  of the  sort                      that  Dr.  Bonasia is  [i.e., individuals                      who have a past record of charitable work                      and  community  service]  are  likely  to                      engage in those activities and  be within                      the   contemplation  of   the  Sentencing                      Commission.                        In so  stating, the court at least  implied that it            did  not  consider Bonasia's  good  works  to be  unusual  or            exceptional if compared to other defendants with past records            of  commendable  service.    Moreover,  the  court  erred  by            restricting the scope of its comparison to  only bank robbery            cases.     A  court  should  survey  those  cases  where  the            discouraged factor is  present, without limiting  its inquiry            to  cases  involving the  same  offense,  and  only then  ask            whether  the defendant's  record stands  out from  the crowd.            See  Rivera, 994  F.2d  at 953-54  (suggesting departure  for            ___  ______            discouraged factor might be warranted after comparing case to            other  cases  involving  the  factor without  regard  to  the            underlying  crime); Jackson,  30  F.3d at  202-03  (reversing                                _______            decision to  depart based  on discouraged factor  [age] after            comparing  facts  of  case   to  other  cases  involving  age            irrespective of  underlying crime); but cf.  United States v.                                                ___ ___  _____________            Haversat,  22 F.3d  790,  795-96 (8th  Cir. 1994)  (reversing            ________            departure  because  defendant's   charitable  and   volunteer                                         -46-                                          46            activities were not atypical for a  defendant in an antitrust            price-fixing case).                        In sum,  the district court erred  when it declined            to compare Bonasia's record  of charitable work and community            service to other cases where defendants similarly had records            of  past community  service.   We  therefore must  remand for            reconsideration  of   this  issue  under  the   proper  legal            standard.20                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For   the  reasons  stated  above,  we  affirm  the            district court on all  issues raised by the defendants.   We,            however,   vacate   Bonasia's   sentence   and   remand   for            resentencing.                                            ____________________            20.  We do not offer any opinion  on whether Bonasia's record            of charitable  work and community service  warrants departure            given  the proper comparison.  We leave this determination to            the discretion of the district court.                                         -47-                                          47
