
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2309                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JOSE V. ANDRADE, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                          and Dowd,* Senior District Judge.                                     _____________________                                 ____________________            Miriam Conrad, Federal Defender Office, for appellant.            _____________            James  F.  Lang,  Assistant  United  States  Attorney,  with  whom            _______________        Donald K. Stern, United  States Attorney, was on brief  for the United        _______________        States.                                 ____________________                                   February 3, 1998                                 ____________________                                    ____________________        *Of the Northern District of Ohio, sitting by designation.                 BOUDIN,  Circuit Judge.   Jose V. Andrade,  Jr., appeals                          _____________            from  his conviction  for  conspiracy  to  engage  without  a            license in the business of  dealing in firearms, 18 U.S.C.               371,  922(a)(1)(A)  (1994),  and  for  transporting  firearms            without  a  license  into  his  state  of  residence,  id.                                                                      ___            922(a)(3).   The  facts pertaining  to the  issues  raised on            appeal  are largely undisputed.   As  the sufficiency  of the            evidence is not an issue, we abbreviate the facts.                   Andrade,  a  native of  Boston,  attended  Jackson State            University in Jackson, Mississippi, during 1993 and 1994.  At            the  time, the authorities  suspected Andrade of  moving guns            illegally from Mississippi to Massachusetts.  On December 16,            1994,  Andrade--then in  Boston  for Christmas  vacation--was            arrested  and questioned  in  circumstances described  below.            His family apartment  and two others occupied by cousins were            searched on the same day based on search warrants or consent.            Andrade was  released the  same day,  questioned  at home  on            December 19, and rearrested in March 1995.                 On April 26,  1995, Andrade was indicted  for conspiracy            to engage in gun dealings, together with Christopher Todd and            Terrance Smith,  who were alleged to have  purchased guns for            Andrade in Mississippi; as residents,  it was easier for them            to purchase guns than for Andrade to do so.  In January 1996,            the  grand  jury  issued  a  superseding  indictment  against            Andrade, adding the second count (transporting firearms  into                                         -2-                                         -2-            Massachusetts).   By  that time,  Todd  had pled  guilty, and            charges against Smith had been dismissed.                 On  May 8,  1996, the district  court issued  a decision            refusing to suppress statements that  Andrade had made to the            authorities on  December 16 and  December 19 and  refusing to            suppress the results of the  searches of December 16.  United                                                                   ______            States  v. Andrade,  925 F.  Supp.  71, 81  (D. Mass.  1996).            ______     _______            Andrade  was tried  before  a  jury in  May  1996, the  trial            lasting about two  weeks.   The most  damaging testimony  was            given by Todd and Smith.                 Both men gave detailed accounts of Andrade's requests to            them in 1993 and 1994 to buy handguns and his statements that            he planned to  take them to Boston  to sell.  Todd  and Smith            each  described multiple  occasions  on  which, in  Andrade's            company, they purchased handguns for Andrade in different gun            shops and pawnshops, Andrade selecting the weapons and taking            them afterwards from Todd or Smith.  Certain of the guns were            later recovered by the police in Boston.                 Two  pawnshop   employees,  from   different  pawnshops,            identified Andrade as  an individual who accompanied  Todd on            specific occasions.  Michael  Spinola, Andrade's first cousin            and friend,  admitted saying  that Andrade  had told  Spinola            that he was bringing guns  from Mississippi to Boston to sell            and that Spinola  had seen some of the  weapons; but although            Spinola  had given detailed  testimony to this  effect to the                                         -3-                                         -3-            grand jury, at trial he described much of it as lies.   There            is also testimony  from a former friend of  Andrade, who said            that   in  December  1994  after  the  search  warrants  were            executed, Andrade had asked the friend whether he would store            a suitcase of guns for Andrade.                 Andrade   sought   to  impeach   government   witnesses.            Although  he   did  not  testify  himself,   Andrade  offered            testimony of Manuel Correia, who had been his roommate at the            University in Mississippi.   Correia said that he  had driven            from Jackson to Boston with  Andrade three times, had seen or            helped  Andrade pack,  and had  never seen  any guns  around.            Andrade's own  statements, and  some of  the evidence  seized            from  the   apartment  searches,   were  introduced  by   the            government.                 The jury  retired to  deliberate on May  29, 1996.   The            next day  it asked the court  to answer a question  about the            substantive count (transporting guns into Massachusetts); the            question and  court's reply  are at issue  on appeal  and are            discussed below.   On May  31, Andrade was convicted  on both            counts and later sentenced to 46 months in prison.                   Andrade's  first claim  of error  is  that the  district            court  admitted statements that  Andrade had made  during his            December  16 interrogation at the police  station.  After his            arrest, Andrade  was taken to  an office in a  Roxbury police            substation and  handcuffed  to a  chair.   There,  Bureau  of                                         -4-                                         -4-            Alcohol,  Tobacco and  Firearms  agent  Daniel Campbell  read            Andrade the  Miranda warnings,  see Miranda  v. Arizona,  384                         _______            ___ _______     _______            U.S. 436, 478-79  (1966), and asked him if  he understood his            rights; Andrade  said that he  did.  A state  police officer,            Francis Matthews, was also present.                   Campbell told  Andrade that  he was under  investigation            for  gun shipments, and  that the police  had search warrants            for two premises connected  with Andrade.  Andrade said  that            he had bought guns in Mississippi but that he was a collector            and not a dealer.   Andrade also identified a third apartment            where  he had  stayed.   Campbell  then went  to execute  the            search warrants  and obtained  permission from  the owner  to            search the third apartment.                   After Campbell  left, an  INS agent  sought to  question            Andrade  about his immigration  status.  Andrade  refused, so            Matthews told  the agent to  leave.  A Boston  police officer            then entered and, hearing  Andrade tell Matthews that he  was            not a firearms dealer, accused Andrade of lying; there was an            angry  reply from Andrade, and Matthews told the detective to            leave.   After some further discussion between them, Matthews            said to Andrade  that he would not keep  bothering Andrade if            he didn't  want to  talk, and Matthews  then spent  about two            hours on paperwork while Andrade slept in the chair.                 At some  point  during the  searches, police  apparently            suggested  to  Andrade's  sister  that  she  talk to  him  by                                         -5-                                         -5-            telephone;  she did so,  crying and pleading  with Andrade to            talk  to  the   police.    When  Campbell   returned  to  the            substation,  Andrade  had  been held  for  about  four hours.            Campbell woke him  and asked him if he  remembered the rights            that had been read to him earlier.  Andrade said that he did.                 At this point, Campbell said  that he knew that Todd and            Smith had purchased guns for Andrade in Mississippi.  Andrade            replied that he knew Todd and Smith and was present when they            purchased  guns.  Andrade admitted that he obtained guns from            Todd and Smith but said that he  had sold them in Mississippi            to three  men from Houston, although he  also admitted having            given a couple of guns to two men in Boston.                   Andrade was  released after  offering to  cooperate with            the police in retrieving weapons that the police thought were            still at large in Boston.  Seeking this cooperation, Campbell            and a  Boston Police  detective visited  Andrade  at home  on            December 19, where Andrade  said that three men  from Houston            would  soon be  arriving in  Boston  with weapons  and drugs.            Andrade offered to introduce the  men to Campbell.  Andrade's            statements on both days were offered in evidence at trial.                   In  this  court,   Andrade  does  not  claim   that  the            statements  he made were involuntary.   Instead, he says that            by  repeated questioning police failed  to honor his right to            remain silent  under the  Miranda doctrine,  see Michigan  v.                                      _______            ___ ________                                         -6-                                         -6-            Mosley, 423  U.S.  96, 104  (1975),  and that  when  Campbell            ______            resumed questioning after completing the apartment  searches,            there was no adequate waiver when Andrade made the statements            in  the  second  interrogation.    The  district  court  held            otherwise, and we agree.                  Miranda  requires  that  the police  warn  a  suspect in                 _______            custody  of his  right to  counsel  and his  right to  remain            silent.  If  the police have failed to give  the warnings and            obtain a waiver of rights, the  statements are excluded, even            if  otherwise voluntary.   Where the suspect  asserts that he            wants to consult  with counsel, questioning must  cease until            counsel is provided.   See Edwards v. Arizona,  451 U.S. 477,                                   ___ _______    _______            484-85 (1981).   But  when a defendant  invokes his  right to            remain silent,  Mosley makes clear  that the  police are  not                            ______            automatically forbidden from later resuming interrogation.                 Andrade's   initial   statements    to   Campbell   were            voluntarily made after full warnings.  Andrade's later rebuff            of the INS agent and  police detective were refusals to speak            to  them but  were  not couched  as a  refusal  to talk  with            anyone.  When Matthews ended  his own questioning, it appears            that Andrade  no longer  wanted  to talk  with Matthews,  but            neither  did  Andrade  rule out  the  possibility  of talking            later.                   We  see nothing wrong with Campbell's decision to resume            questioning  of Andrade  after the  searches.   A  reasonable                                         -7-                                         -7-            interval  separated  the  two  periods  of  questioning,  see                                                                      ___            Mosley, 423 U.S. at 106, and there was no repeated attempt to            ______            reverse  a refusal  to  talk  through  undue pressure.    The            circumstances  were  quite  different  in  United  States  v.                                                       ______________            Barone, 968  F.2d 1378 (1st  Cir. 1992), where  the defendant            ______            resisted  questioning,  was  held  for  over  24  hours,  was            interrogated four times before he began to discuss the crime,            and was twice intimidated by suggestions that he "would be in            substantial  [physical]  danger  if  he  returned  to  Boston            without cooperating."  Id. at 1385; see also id. at 1386.                                   ___          ________ ___                 Whether Andrade's later statements reflected a waiver of            his right to remain silent is a closer issue.  The problem is            that the Supreme  Court has said, almost in  the same breath,            that "mere silence is not enough" for a waiver, but that this            "does not mean  that the defendant's silence, coupled with an            understanding  of  his   rights  and  a  course   of  conduct            indicating  waiver, may never  support a conclusion  that the            defendant has waived his rights."   North Carolina v. Butler,                                                ______________    ______            441 U.S. 369, 373 (1979).  The waiver issue, it appears, must            be decided on the facts.  See id. at 374-75.                                      _______                 Here, we have no reason  to doubt that Andrade knew that            he had a right to remain silent; at the outset of  the second            round, Campbell  reminded him  of the  earlier warnings,  and            Andrade confirmed that he remembered.  As for the intervening            events,  Matthews'  dismissal  of the  INS  agent  and police                                         -8-                                         -8-            detective, when Andrade demurred, fairly conveyed the message            that Andrade  was in  charge of the  decision whether  and to            whom  he  would  speak.    By ending  the  initial  round  of            questioning, Matthews himself reinforced this message.                 Andrade's  subsequent admissions  to  Campbell were  not            confessions  wrested from  a reluctant  detainee.   Andrade's            statements were partly consistent  with Andrade's cover story            (selling the weapons to three men from Houston) and partly an            attempt to explain  away the presence of some  of the weapons            in  Boston.   In short,  Andrade  had a  rational reason  for            choosing not to remain silent.   While a written waiver would            ________            have   helped  the  government,   it  is  not   a  mechanical            requirement.1                 Andrade's  next   claim  is   that  the   trial  court's            instructions  on  the  first  count--conspiracy  to  deal  in            firearms   without   a  license--set   too  low   a  scienter            requirement.  18 U.S.C.   924(a)(1)(D) provides that a number            of weapons offenses, including the offense of dealing without            a license, require  that the proscribed conduct  be willfully            undertaken.   Andrade's counsel  asked the court  to instruct            the jury that this in turn required proof beyond a reasonable            doubt  that "the  defendant  knew  that Section  922(a)(1)(A)                                            ____________________                 1Compare United States v. Christian, 571 F.2d 64, 66, 69                  _______ _____________    _________            (1st Cir. 1978)  (no waiver where a defendant's  signature on            an FBI waiver form showed  that he had admitted being advised            of his rights, but conspicuously omitted his signature on the            line provided for a waiver of those rights).                                         -9-                                         -9-            requires  one  who engages  in  the  business  of dealing  in            firearms to obtain  a dealer's license from  the Secretary of            the Treasury."                 The  district court  refused  to give  this instruction.            Instead, it  told the  jury that one  acts willfully  when he            intentionally commits  acts proscribed by law "with knowledge            that his conduct is unlawful."  The court said that knowledge            of  illegality had  to be  proved beyond a  reasonable doubt.            But it  also instructed that  the government did not  have to            prove that the defendant knew of the specific statute that he            was charged  with violating  or that  he intended  to violate            that particular statute.                 If case law from  other circuits is put to one side, the            issue appears  easy.  The  term "willful" is used  in various            ways,  but the standard definitions normally emphasize that a            defendant  acted  "with  knowledge  that   [his]  conduct  is            unlawful,"   1 L. Sand,  J. Siffert, W. Loughlin  & S. Reiss,            Modern  Federal Jury Instructions    3A.01, at  3A-18 (1997).            _________________________________            Willfulness is often required where a statute outlaws conduct            commonly  thought  to  be  lawful.    In  some  measure,  the            willfulness  requirement  reverses  the   usual  rubric  that            ignorance of the law is no defense.   Just how much ignorance            may be needed is a different matter.                 Nothing in the traditional  willfulness instruction, nor            in  its  underlying  purpose,  requires  that  the  defendant                                         -10-                                         -10-            possess specific  knowledge of  the statutory  provision that            makes his conduct unlawful.   To impose such a requirement of            detailed knowledge  of the  firearms statutes  (to which  few            judges could  pretend) would make  an enforcement of  the gun            dealer laws  very difficult.   And the requirement  goes well            beyond what is needed to  screen out an innocent who honestly            thought that his conduct was lawful.                 Our  view  accords  with  the  purpose  of  Congress  in            adopting the willfulness requirement in  the Firearms Owners'            Protection  Act  of 1986,  Pub.  L.  99-308,  100 Stat.  449.            Congress's concern  was that,  because of  the nature  of the            conduct  and technicality of the statute, some offenses might            be  committed  by  individuals who  were  unaware  that their            conduct  had been  made criminal.2    Nothing indicates  that            Congress was  concerned with protecting individuals  who knew            that their conduct was unlawful but might not be able to cite            chapter and verse as to which precise provision made it so.                 The proponents  of the willfulness  requirement, to  the            extent that we  can discover their comments, said  nothing to            suggest that the term was  intended to go beyond its ordinary                                            ____________________                 2The willfulness requirement applies  to some gun crimes            and  not  others, and  the  dividing  line is  crudely  drawn            between actions that anyone might expect to be unlawful, see,                                                                     ____            e.g.,  18  U.S.C.      922(v),  924(a)(1)(B)   (semiautomatic            ____            assault weapon  crimes), and  actions that  might not  always            appear  unlawful, see,  e.g.,  id.      922(e),  924(a)(1)(D)                              __________   ___            (shipping  a firearm in  interstate commerce  without written            notice to the common carrier).                                         -11-                                         -11-            meaning, that is,  awareness that one's conduct  is unlawful.            The only suggestions that the statute might require knowledge            of  the "details"  of  the  law came  from  opponents of  the            amendment; given  the incentive to  exaggerate, such  remarks            normally get  little  weight.    NLRB v.  Fruit  &  Vegetable                                             ____     ___________________            Packers & Warehousemen, Local 760, 377 U.S. 58, 66 (1964).3            _________________________________                 The  Second   Circuit  has   squarely  ruled   that  the            government need only prove  that the defendant knew that  his            conduct was illegal.  United  States v. Collins, 957 F.2d 72,                                  ______________    _______            76-77,  cert. denied,  504 U.S.  944  (1992).   Accord United                    ____________                            ______ ______            States v.  Allah, 130 F.3d  33, 38-41 (2d Cir.  1997); United            ______     _____                                       ______            States v.  Bryan, 122 F.3d  90, 91 (2d Cir.),  cert. granted,            ______     _____                               _____________            118 S.  Ct. 622  (1997).  The  Seventh Circuit's  decision in            United States v. Obiechie, 38 F.3d 309 (1994), largely points            _____________    ________            toward  a  standard  of   general  knowledge  of  illegality,            although  one  sentence   suggests  that  knowledge  of   the            licensing requirement may be required.  See id. at 316.                                                    _______                 Several other circuits--including the Third and Eighth--            say  generally that the defendant must have "knowledge of the                                            ____________________                 3Compare 132 Cong.  Rec. 6876 (1986) (statement  of Rep.                  _______            Hughes)  (opponent's  comments  that  the  new statute  would            require the defendant to know  "what the law is, every detail            of the law. . . .  [I]t would be a  prosecutor's nightmare"),            with  id. at 6861  (statement of Rep.  Boehlert) (supporter's            ____  ___            comment that the  statute rejected mere knowledge  of conduct            in favor of  "some sort of criminal intent").   The scattered            and extensive legislative  history is recounted in  D. Hardy,            The Firearms Owners' Protection Act:   A Historical and Legal            Perspective, 17 Cumb. L. Rev. 585, 604-07, 645-53 (1987).                            _____________                                         -12-                                         -12-            law," e.g.,  United States  v. Hayden, 64  F.3d 126,  130 (3d                  ____   _____________     ______            Cir. 1995)  ("the defendant  must have  acted with  knowledge            that his  conduct was unlawful"); United States  v. Hern, 926                                              _____________     ____            F.2d   764,  767  (8th   Cir.  1991)  ("`willful'   means  an            intentional  violation of  a  know legal  duty").   But  this            language  could  be read  either  to support  Andrade  or the            Second Circuit.  And the matter is  further confused because,            in  purporting to disagree  with the Second  Circuit, several            such decisions misunderstand its position.4                 Admittedly,  two  other  circuits  say  that  conviction            requires proof that the defendant  was aware of the licensing            requirement   itself,  but  we   do  not  find   these  cases            persuasive.  See United States  v. Rodriguez, 1997 WL 797506,                         ___ _____________     _________            at *4  (5th Cir.  Dec. 31, 1997);  United States  v. Sanchez-                                               _____________     ________            Corcino,  85  F.3d  549,  553-54  (11th  Cir.  1996).    Even            _______            decisions  like  Rodriguez,  purporting to  require  specific                             _________            awareness of the statute, dilute the requirement by inferring            specific  knowledge  from   circumstantial  evidence.     See                                                                      ___            Rodriguez, 1997 WL 797506, at *4.            _________                 Such  evidence  is likely  to  be  good proof  that  the            defendant knew that  his conduct was  unlawful but very  thin                                            ____________________                 4The  Third Circuit, for example, ascribes to the Second            Circuit the view that the government need prove only that the            defendant  knew what he  was doing.   Hayden, 64  F.3d at 130                                                  ______            n.6.   The  Second  Circuit  has,  to  our  knowledge,  never            expressed  this view.    See  Collins, 957  F.2d  at 77  (the                                     ___  _______            evidence  "demonstrate[d] that  Collins  understood that  his            firearms sales violated the law").                                         -13-                                         -13-            evidence that  the defendant  knew what statute  made it  so.            See Rodriguez, 1997  WL 797506, at *6  ("counter-surveillance            ___ _________            operations," "unease about the sale," and "experience at `The            Bunker'  and with firearms" gave defendant a "background from            which she should have been familiar with the firearms laws").            See also Obiechie, 38 F.3d at 316 ("An inference of knowledge            ________ ________            could be  drawn  from the  fact that  [defendant] had  listed            `gift' as  his reason for purchasing  the [guns] . .  . after            having indicated that the first two purchases were for retail            sale.").   Since juries are  being allowed to convict  on the            basis of such evidence, nothing  is gained by instructing the            jury with  language suggesting  that the  standard is  higher            than it actually is.                  Nor  is Andrade's position  supported, as he  claims, by            Ratzlaf v. United States, 510  U.S. 135 (1994).  Ratzlaf held            _______    _____________                         _______            that a currency structuring violation  required "knowledge of            illegality [as]  an element"  to show  willfulness, Bates  v.                                                                _____            United States,  118 S. Ct. 285, 290 n.6 (1997), which is just            _____________            what  the district  court told  the jury  here.   In Ratzlaf,                                                                 _______            knowledge of  a specific statute  (or something close  to it)            was also required--not because of the willfulness requirement                ____            but because the statute itself required a "purpose of evading            the reporting requirements"  of 31 U.S.C.   5313(a).   See 31                                                                   ___            U.S.C.   5324.   This additional wrinkle is  not part of  the            present case.                                         -14-                                         -14-                 In  short, after surveying  the cases, we  feel on solid            ground  in joining  the Second  Circuit position  that it  is            enough  that the  defendant  be  aware  that his  conduct  is            unlawful.  Such knowledge, needless  to say, depends upon the            circumstances.   In  our  case, the  scale  of Andrade's  gun            smuggling activity, his  denials of gun dealing in the police            station,  and  other  evidence  that he  sought  to  hide the            weapons are powerful  indications of his awareness.   Andrade            himself makes no claim  that the evidence is  insufficient on            this score if the district court's instruction is upheld.                 The remaining claim of error  that we think necessary to            address  concerns  a supplemental  instruction  given by  the            district court in answer  to a question from  the jury.   The            second  count charged Andrade with the substantive offense of            transporting  firearms  without  a license  into  a  state of            residence.     Following   the  charge   and   a  period   of            deliberation,  the jury submitted  a written question  to the            court as follows:                 The jury requests a description of clarification of                 the term  "transport" as it  is used in Page  22 of                 the Jury instructions, i.e.:   Does defendant  have                 to  personally transport or deliver guns?  Is (sic)                 acceptance of said guns in Massachusetts constitute                 transportation,  especially   in  the   phrase  "to                 transport into" or "receive"?                 After consulting with  the parties,  the district  court            told  the jury  that, given  the government's  theory  of the            case,  it would not  be enough for the  jury to conclude that                                         -15-                                         -15-            the   defendant  "merely   received  or   accepted  guns   in            Massachusetts."5   However, the court said that Andrade would            be  guilty if  he had  caused  "an agent,  employee or  other            associate" to bring  the guns into Massachusetts.   Andrade's            counsel, in  turn,  objected  to  this  further  supplemental            instruction.                 The  supplemental charge was legally correct.  At common            law one is  liable as a principal if  one deliberately causes            or procuring another to perform a criminal act, 2 W.R. LaFave            & A.W. Scott, Jr., Substantive  Criminal Law   6.6(a), at 126                               _________________________            (1986),  and the  principle has  been carried  forward by  18            U.S.C.   2(b).   Unlike aiding and abetting  liability, id.                                                                      ___            2(a), there is no requirement  that the intermediary be shown            to  be criminally  liable.   Section 2(b)  is not  a separate            offense but  a general  principle of  liability that  applies            without  any need for  reference in  the indictment.   United                                                                   ______            States v. Sabatino, 943 F.2d 94, 99-100 (1st Cir. 1991).            ______    ________                 Andrade  says  that  delivering  the  instruction  after            closing  arguments  violated  Fed.  R.  Crim.  P.  30,  which            requires that the court rule on requested instructions "prior            to their arguments  to the  jury."   By its terms  and, as  a                                            ____________________                 5In  his  original  instructions,  the  trial  judge had            already told the  jury--consistent with the  indictment--that            the charge against Andrade had as a necessary element that he            had  transported  the  guns  into  Massachusetts.    However,            earlier the  judge had  quoted the statute  in full,  and the            statute  makes transportation or  receipt criminal,  if other                                          __            conditions are met--which may explain the jury's question.                                         -16-                                         -16-            matter  of  necessity, Rule  30  refers  only  to rulings  on            instructions  requested by  counsel "[a]t  the  close of  the            evidence or at such earlier time" as the court directs.  Fed.            R. Crim.  P. 30.   The  rule  simply does  not prescribe  the            procedure  for supplemental  instructions after the  jury has            retired.  See  United States v. Fontenot, 14  F.3d 1364, 1368                      ___  _____________    ________            (9th Cir.), cert. denied, 513 U.S. 966 (1994).                        ____________                 The defense now  says that at least it  should have been            allowed to address  the jury on  this "new theory,"  pointing            out to it that there was no specific evidence that anyone had            transported the guns at Andrade's direction.  We agree that a            refusal  to permit  further  argument  made  necessary  by  a            supplemental instruction could amount to  error.  But here it            is enough to say that no such request to make further closing            argument  after the supplemental instruction was made in this            case.                 Further, the notion  of prejudice is fanciful.   Defense            counsel pointed out to the  jury in her original closing that            there was no direct evidence showing Andrade's transportation            of the guns  to Massachusetts.  It had to be equally clear to            the jury that  there was no direct evidence  that Andrade had            asked  an "agent, employee  or other associate"  to transport            the guns for  him.  To spell out the obvious would have added            nothing.                                         -17-                                         -17-                 At the same  time, there was enough evidence  for a jury            to  conclude  that   somehow  Andrade  had  managed   to  get                                 _______            Mississippi guns to Boston; among much else, Andrade had told            Todd and Smith that he planned to do so, and some of the guns            had  in fact  been recovered  here.   The  government had  no            obligation to prove the means of transportation.  In context,            the supplemental instruction  did little more than  make this            clear to the jury, and properly so.                 There is no  need to address  in detail Andrade's  final            attack on the  trial judge's instructions; taken as  a whole,            we do not believe the charge tended to mislead or confuse the            jury.   Although Andrade's  arguments have not  prevailed, we            think it  fair to note  that several of them  are substantial            and that  Andrade has been  represented on  this appeal  with            singular skill and ingenuity.                 Affirmed.                 ________                                         -18-                                         -18-
