

                      [NOT FOR PUBLICATION]

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 95-2031

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         ROBERT M. JOOST,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

             [Hon. Mary M. Lisi, U.S. District Judge]                                                              

                                           

                              Before

                       Lynch, Circuit Judge,                                                     
                  Coffin, Senior Circuit Judge,                                                        
                  and Cummings,* Circuit Judge.                                                        

                                           

  Robert Joost on brief pro se.                        
  Kenneth P. Madden, Assistant  United States Attorney,  and Sheldon                                                                              
Whitehouse, United States Attorney, on brief for appellee.                                          

                                           

                          August 7, 1996
                                           

                                              

   *Of the Seventh Circuit, sitting by designation.

     COFFIN, Senior  Circuit Judge.   Defendant Robert  Joost was                                            

convicted by a jury  of conspiracy to obstruct, delay  and affect

commerce by robbery of gold from an armored  car, in violation of

18 U.S.C.   1951 (the Hobbs Act).1   He filed this appeal pro se,                                                                          

alleging a  host of errors.   Finding none of them  to affect the

integrity of the conviction, we affirm.2

                        FACTUAL BACKGROUND                                  FACTUAL BACKGROUND

     In March 1994, an  informant, Tracy, introduced defendant to

two undercover  Rhode Island detectives, DelPrete  and O'Donnell,

who were investigating  the manufacture  of counterfeit  Foxwoods

Casino (Connecticut) slot machine tokens by defendant and others.

During the ensuing months, defendant supplied the detectives with

many such tokens,  which the  detectives said they  were able  to

exchange for cash at the  cashier's cage through a cousin of  one

of them.

     On April 24,  1994, defendant asked  the detectives to  join

him in robbing a  Meehan armored car that regularly  carried gold

to  New York.  He  said he had earlier  assembled a gang for this

job  and had  made plans that  he now  sought to  reactivate.  In

                                                  

     1   The same  jury was  unable to reach  a verdict on  a co-
defendant, Grelle, who later pled guilty.

     2  Defendant also was  charged with two additional offenses.
His conviction for  being a felon in possession  of a firearm, in
violation of 18 U.S.C.    922(g), is being vacated in  a decision
issued simultaneously  with this one because of the trial court's
erroneous refusal to  give an instruction on  entrapment.  United                                                                           
States v.  Joost,  No. 95-2032  (1st  Cir. July  xx, 1996).    An                          
indictment  alleging  interstate  theft  and  counterfeiting,  in
violation  of 18  U.S.C.     371 and  487, was  dismissed without
prejudice.

                               -2-

subsequent conversations  in May defendant said  that the company

had  changed its  vehicle from  a truck  to  a van.   On  May 28,

defendant, Grelle,  and the two detectives  drove to Pennsylvania

to carry out  a robbery  of a warehouse  or tractor/trailer,  but

were  intercepted by  a prearranged  investigative stop  in which

police confiscated burglar tools supplied by defendant.

     Further talk about the  Meehan job led to a  surveillance in

woods near the  armored car facility on the night  of June 29-30.

Defendant had  said that the vehicle carried  up to $6 million in

gold, and that  Leach &amp; Garner  was one customer.   He said  that

guards  would arrive  at about  3:00 a.m.,  that one  would leave

first for the vehicle and another would follow.  Defendant's plan

had  two of his team rushing the  first guard while a third would

alert  them to the  approach of  the second  guard, both  of whom

would  be seized,  and shot  if necessary with  a silencer.   The

robbery aborted when the guards failed to appear.

     Executives of  both Leach  &amp; Garner and  Meehan corroborated

the pick-up time (between 4:30  and 5:30 p.m.), the value  of the

shipment (averaging  $5 million), overnight  storage at  Meehan's

Woonsocket facility, the arrival of two guards at 3:00 a.m.,  and

the  change in  April 1994  from  a truck  to a  van.   Defendant

testified that  he  had  gotten his  information  from  a  prison

roommate, used them in a novel he was writing, and brought up the

armored  car  project in  order to  sustain  the interest  of the

detectives until he, defendant, could meet  and establish his own

                               -3-

connection  with the "cousin" in the casino's cashier's cage.  He

had never intended to follow through on an actual robbery.

     Insofar as  additional facts  may be relevant  on particular

issues, they will be incorporated into the following discussion.

                            DISCUSSION                                      DISCUSSION

     Defendant represented  himself at trial  during presentation

of  the  government's  case;  after  the  government  rested,  he

requested  standby  counsel to  take over.    In this  appeal, he

resumes  self-representation,  and  has briefed  sixteen  issues.

While some merit more discussion than others, we shall follow the

sequence  in  which  both   defendant  and  the  government  have

presented their positions. 

     1. "Other Acts" Cross Examination.                                                

     Defendant's  basic theme,  introduced  in  his  opening  and

reiterated  in his testimony, was that he did not engage in armed

robberies, that he was  fully aware of the heavy  penalty imposed

on  a convicted felon found in  possession of a firearm, and that

his  many discussions  with  the detectives  concerning past  and

future criminal projects were  fanciful tales designed to sustain

their interest  until he could  establish his own  modus operandi

with the casino's cashier.

     The government sought  to rebut defendant's claim of lack of

intent  to  rob  by  asking  O'Donnell  about  the  conversations

defendant had had with the detectives concerning various criminal

ventures.    On  objection,  the  court  refused  to  allow  such

questioning,  deeming prejudice  to  outweigh relevance  at  that

                               -4-

point, but noting that  the ruling was "subject to  whatever else

is going to come out."  Defendant subsequently took the stand and

testified at length about his  lack of intent to rob the  armored

car.  

     When  the government  proposed  to cross  examine  defendant

about his various proposals to the detectives, the court deferred

ruling and further questioning pending resolution of the question

whether, if  defendant invoked  the Fifth Amendment,  all of  his

testimony  should be  stricken.   The  court subsequently  became

satisfied  that  defendant's   taking  the  Fifth  Amendment   on

collateral  matters would  not affect  his prior  testimony.   It

therefore  allowed  the  government  to  ask  some   twenty-three

questions about defendant's  conversations or actions  concerning

proposed  thefts from a  UPS van, an American  Legion hall, and a

Pennsylvania  warehouse,  and  delivery   of  a  firearm  to  the

detectives.   Defendant, in the presence of the jury, invoked the

Fifth Amendment as to each question.3

     He  now makes  two arguments.   First,  he asserts  that the

court improperly  failed to balance  prejudice against relevance,

although he undercuts this argument  by observing, "At best, this

`evidence'  was merely cumulative."   We think it  clear that the

court  was fully aware of  its responsibilities.   It earlier had

                                                  

     3   In defendant's subsequent prosecution for being a felon-
in-possession  of a  firearm, see  supra at  n.2, his  defense of                                                  
entrapment  relied  on  a   full  disclosure  of  all   of  these
conversations  and actions,  which he  characterized as  fanciful
fiction,  devised  to induce  the  detectives  to continue  their
dollars-for-tokens support.

                               -5-

rejected the proffered line of questioning and permitted it  only

after defendant  testified extensively about his  lack of intent.

While, as always, explicit findings would have avoided any issue,

we do not deem this an abuse of discretion. See  United States v.                                                                        

De La Cruz, 902 F.2d 121, 123 (1st Cir. 1990).                    

     Defendant's  second  argument is  that  there  was no  "real

evidence" or responses  from him backing  up the insinuations  of

the prosecutor.  But this is not a situation where the prosecutor

was  flying blind  and  asking questions  without any  legitimate

reason.  Some of the subject  matter -- the trip to  Pennsylvania

to rob the warehouse  -- was already in evidence; and  both sides

were fully aware that most of the relevant conversations had been

taped.   The government's attempt  to elicit the same information

from its witness  had been  foreclosed.  Defendant,  who had  the

option  of convincing the jury  of his "version  of the facts and

his reliability as a witness, [or] not to testify at all  [,] . .

.  cannot reasonably claim that the Fifth Amendment gives him not

only this choice but, if  he elects to testify, an  immunity from

cross-examination on the matters he has himself put in  dispute."

Brown v. United States, 356 U.S. 148, 155-56 (1958).                                

     Moreover,  this objection  was  not  effectively  raised  at

trial. Only two of the twenty-three questions were objected to on

the  ground of  "lack  of evidence."    Both of  these  concerned

whether defendant had looked at the American Legion building, but

other questions  had been asked without  objection concerning the

plan to rob that building.  

                               -6-

     2.  Rulings admitting evidence.                                             

          a.  O'Donnell  testified  about  a   conversation  with

codefendant Grelle, in which Grelle told of his son's involvement

in an armored car robbery.  The testimony was promptly struck and

a cautionary instruction given.   After a recess both  Grelle and

defendant moved for a mistrial.  The linkage between Grelle's son

and  defendant is  tenuous  and remote.    This is  not  mistrial

material.

          b. The informant Tracy at  one point testified that one

reason  why he did not tell defendant that O'Donnell and DelPrete

were really state  troopers was concern for  his own safety.   An

objection  was overruled.  But  earlier Tracy had  given the same

reply in direct  examination by defendant.   Moreover, this  adds

nothing to defendant's own talk about being prepared to shoot the

armored car guards.  If error, it was harmless.

          c.  The  government  asked  defendant if  he  had  been

convicted  of a  conspiracy to  violate  civil rights  by murder.

Objection to the  question was overruled.   Defendant answered by

saying,  "That's not  true. It  was by  death resulting."   Then,

after defendant repeated that  the conviction was for "conspiracy

to violate the civil  rights of a citizen, death  resulting," the

prosecutor  interjected, "By  killing;  conspiracy  by  killing?"

Defendant  answered, "Well, yes.   There was  a death resulting,"

just before objection was made and overruled.

     A  reading of United States v. Guillette, 547 F.2d 743, 748-                                                       

49  (2d Cir.  1976),  reveals that  a  prospective witness  in  a

                               -7-

prosecution against this defendant and another had been killed by

a  bomb activated  when  opening the  front  door of  his  house.

Defendant  argued that it  had been installed by  the victim as a

booby trap aimed at  him and his codefendant, who  were searching

for  him to prevent him  from testifying.   The Connecticut trial

court refused  to charge that  such a fact, if  found true, would

exonerate defendant.  The Second Circuit agreed, holding that the

defendants "would  still  be considered  in  the chain  of  legal

causation if the immediate cause of  death -- setting a bomb as a

booby trap  -- was  a  foreseeable protective  reaction to  their

criminal  efforts to  locate and  dissuade him  from testifying."

The court,  in discussing another  issue, even  referred to  "the

murder of LaPolla [the victim]."  Id. at 755. The questions asked                                              

did not mischaracterize the conviction in any significant way.

     Defendant  presents four  other  issues of  this nature  but

either the objections  were sustained or  no objection was  made;

all are insubstantial.

     3.  Limiting examination and refusing offer of proof.                                                                   

     From  two  days  of  his  cross-examination  of   O'Donnell,

spanning 174 pages of transcript, defendant distills two asserted

errors.  One  rises out of a specific limitation on further cross

by  the  court  that  prevented  defendant  from  inquiring  into

O'Donnell's misreading of a  telephone number -- to show  that he

might also have misread  a gesture defendant had  made.  This  is

obviously within the discretion of the court.  

                               -8-

     The  second was merely a  final limitation of  one more hour

(instead of two), and  subsequent 20 and 5 minute warnings.  When

defendant wished to  make an  "offer of proof"  of the  remaining

questioning he wished to do (which would have centered on missing

or  defective tapes), the  court refused.   We cannot contemplate

how  such actions, after two days of cross examining one witness,

could be held an abuse of discretion.

     A final  asserted error was the  ruling preventing defendant

from  telling about another armored truck fantasy he had told the

detectives,  to prove he was  just a storyteller.   There already

were  quite enough  of  these to  allow  defendant to  argue  his

version.

     4.  Directing court reporter to read her notes of tape.                                                                     

     After the jury reported  to the court that a  tape recording

was  inaudible, the court told  the jury to  make another effort.

Then, following a  subsequent request  from the  jury, the  court

ordered  the court reporter to  read her notes  made earlier from

the  recording.    After  she concluded,  counsel  for  defendant

objected, saying that he  had been comparing what was  being read

with   the    transcript   of   the   tape,    and   found   some

misidentifications.  He mentioned that at one point  the reporter

attributed  some of  the detectives'  statements to  one  or both

defendants.

     It is of course the case that the tapes, not the transcript,

constitute evidence.  United States v. Richman, 600 F.2d 286, 295                                                        

(1st Cir.  1979).  But it is within a judge's discretion to allow

                               -9-

a  reporter to read back testimony, United States v. Akitoye, 923                                                                      

F.2d  221, 226 (1st Cir. 1991), and  such principle would seem to

apply  here.  In  any event, we see  no possibility of prejudice.

O'Donnell   had  testified  extensively   about  the  events  and

conversations  on the evening of  June 29-30, the  subject of the

tape recording.  Defendant  has pointed to no discrepancy  in the

courtreporter's reading of her notes that could have damaged him.

     5.  Dismissal of two jurors.                                          

      During  the trial,  on April  7, 1995,  defendant's counsel

became  ill.   When  it  was  apparent that  the  trial  would be

suspended for an additional week, the court was informed that two

jurors had prepaid for vacations that were scheduled to begin the

week when trial would resume.  The court announced to counsel for

all  parties in a telephone conference call that the jurors would

be excused.   There was  no objection.   Defendant claims  not to

have known of this action until shortly before trial resumed.

     Defendant first  argues that a  scheduled vacation is  not a

legitimate reason to  excuse a juror, under Fed. R.  Crim. P. 24.

Under the circumstances, this was  within the sound discretion of

the court, United  States v.  Corsino, 812 F.2d  26,33 (1st  Cir.                                               

1987),  and  in any  event this  issue was  not presented  to the

court.

     A second argument is that defendant himself was not involved

in the telephone conference.   While a party must  be represented

by  counsel in such conferences, there is no constitutional right

                               -10-

to be present when dismissal of a juror is discussed.  See United                                                                           

States v. Brown, 571 F.2d 980, 986-87 (6th Cir. 1978).  There was                         

no error in dismissing these jurors.

     6.  Composition of grand and petit juries.                                                        

     Defendant moved to dismiss the  indictments in this and  the

felon-in-possession  case for  failure  to comply  with the  Jury

Selection  and Service Act of  1968, 28 U.S.C.     1861-1878 (the

Act), and the Fifth and Sixth Amendments, and to stay proceedings

until valid petit juries could be drawn.  After hearing argument,

the court refused to  hold an evidentiary hearing and  denied the

motion.  Defendant raises four issues.

          a.  Delay.    Defendant  claims that  delay  in  making                             

available  to him  jury information  denied him  due  process and

equal  protection.    Although   the  Magistrate  Judge   granted

defendant  access to the master jury wheel and the qualified jury

wheel in October,  1994, this did not result in  any action until

February 17, 1995,  when the court, after a  conference requested

by defendant, ordered both wheels to be delivered to defendant.

     At a  hearing on  February  28, defendant,  who had  already

received  the district's  jury plan  and the  two wheels,  sought

juror  questionnaires and  computer  programs used  to achieve  a

random  pick.  The court granted access to defendant's counsel to

examine the  questionnaires.  Defendant sought  thirty additional

days in which to prepare his motion to dismiss; the court granted

twenty-three days.  No  request for additional time was  made and

no showing was made of additional information needed.  

                               -11-

     The  court  ruled  that  defendant had  sufficient  time  to

examine the  material, noting that further  analysis was unlikely

to lead to new information.   We think this judgment well  within

the court's discretion.

          b.  Limiting  access  to  materials.    At  a  pretrial                                                       

conference on March 22,  1995, defendant sought computer programs

used  to  select the  master  and qualified  jury  wheels, names,

addresses,  and  telephone  numbers  of  computer  operators  and

programmers, documents  used to  process juror  questionnaires, a

copy of  the petit  and grand  jury venires,  and  the names  and

townships of the  grand jurors who returned  the two indictments.

The  court, after noting that  production of records  used by the

clerk  in  the  jury selection  process  is  limited  to what  is

necessary to prepare a motion asserting a  substantial failure to

comply with the Jury  Selection and Service Act, see  28 U.S.C.                                                                

1867(d),  denied  the request,  holding  that  defendant had  not

submitted a  sufficient basis for production  of these additional

materials.  

     Defendant argues  on appeal that his figures  had revealed a

flaw in the randomness of Yale's computer program, which was used

to develop the  master and qualified wheels.   As an  example, he

points out  that Providence  citizens comprised 13.46  percent of

the names  on  the master  wheel  but only  8.59  percent of  the

qualified  wheel.   He  contends that  this discrepancy  demanded

further  inspection, particularly  in light  of past  glitches in

Yale's  computer  programming  that  resulted  in  the   complete

                               -12-

exclusion of  persons from the large communities  of Hartford and

New  Britain   from  the   qualified  wheel  and   master  wheel,

respectively.  See  United States  v. Jackman, 46  F.3d 1240  (2d                                                       

Cir. 1995); United States  v. Osorio, 801 F. Supp.  966 (D. Conn.                                              

1992).

     Such  a showing  falls far  short of demonstrating  a likely

substantial noncompliance  with the  Act.  Unlike  the situations

described  in   Jackman  and   Osorio,  substantial   numbers  of                                               

Providence  citizens were  on  both  lists.    In  light  of  the

considerable information already made available  to defendant and

the  extensive memorandum  and exhibits  that he  filed with  his

motion  to dismiss, the defendant bears  a considerable burden of

justifying what would  amount to both a considerable intrusion on

people's work  and  time and  substantial  further delay  of  the

trials.    The court  did not  abuse  its discretion  in refusing

further inspection.   See United  States v.  Davenport, 824  F.2d                                                                

1511, 1514-15 (7th Cir. 1987).

          c.  Evidentiary hearing.   Defendant charges  the court                                           

with error in denying him an evidentiary hearing on his motion to

dismiss the indictments.  Under 28 U.S.C.   1867(d), if  a movant

submits  a sworn statement asserting facts  which, if true, would

impeach  the jury selection process,  he may present testimony of

the clerk or jury commission.  The district court, in denying  an

evidentiary hearing, referred at one point to the lack of an oath

before a notary public.   But defendant had signed  his statement

                               -13-

"under penalty of perjury," which is sufficient under 28 U.S.C.  

1746.4

     The  court,  however,  also  noted   this  circuit's  strict

adherence to "the  gatekeeper prerequisites" of    1867(d).   See                                                                           

United States v. Foxworth, 599 F.2d  1, 3 (1st Cir. 1979); United                                                                           

States v.  Marrapese, 610 F. Supp.  991, 996 (D. R.I.  1985).  It                              

went on to  hold that  the "purported affidavit  is nothing  more

than  a  generalized  recitation  of   self-serving  conclusions,

speculation and conjecture."

     Our reading  of the affidavit confirms  this conclusion; its

most salient statements assert discrimination against non-whites,

poor,  and certain minorities, and that  the master and qualified

wheels were skewed to underrepresent such classes.  But defendant

argues that his affidavit refers to "data he  has supplied in the

attached Motion to Dismiss" and that the motion to dismiss refers

to "the accompanying Memorandum of Law."   The memorandum, signed

by defendant, consists  of seventeen pages and derives  the facts

it relies on from an appendix of sixteen pages of tables and nine

pages of graphs.  The tables, with no indication of source, break

down  the population of the various towns and cities into various

categories: income, non-white,  occupation, education,  language,

ancestry.   Pages  of  data from  the  1990 census  extend  these

                                                  

     4  28 U.S.C.   1746 reads in relevant part, "Wherever . .  .
any matter is required . . . to be supported . . . by the sworn .
. . statement, . . . such matter may, with like force and effect,
be supported .  . . by the unsworn statement,  in writing of such
person  which  is subscribed  by him,  as  true under  penalty of
perjury . . . ."

                               -14-

classifications to include employed females, households receiving

public assistance, and persons over 65 possessing no vehicle.

     The entire package is so unfocused, so often irrelevant, and

so  seldom tied  to verifiable  sources that  to declare  that it

should be considered as integrated with and incorporated into the

affidavit,  the  only  document  that vouches  for  truth,  would

undercut the whole purpose of  the requirement of   1867(d):   to

enable  a court  to review  a challenge  to jury  composition and

"swiftly dispose of it if it  fails."  Marrapese, 610 F. Supp. at                                                          

996 (quoting  legislative history).  See also  Foxworth, 599 F.2d                                                                 

at 3. 

     We therefore do not fault the  court for its ruling.  But we

also  note that defendant was  not, in all likelihood, prejudiced

by  the ruling.   The court  heard a  fairly detailed  summary of

expected testimony from the clerk and an extensive offer of proof

of  defendant's  expert,  a  candidate  for  a  Ph.D.  degree  in

statistics and applied mathematics.  In addition, it had read all

of the motion papers, the memorandum, and the appendix.  

     d.  Fair cross-section.    Defendant's substantive  claim is                                     

that  non-whites   and   lower   economic   classes   have   been

systematically  excluded  from  the  jury  selection  process  in

violation  of the Sixth Amendment.   Defendant contends that this

underrepresentation results  inherently  from reliance  on  voter

registration  lists,  magnified  further  by   program  error  or

malfeasance.  In support of his theory, he cites data specific to

Providence,  which  has  a  non-white  population  of  nearly  30

                               -15-

percent:    the  city  contains  15.72  percent  of  the  state's

population of 18 and over, yet accounts for only 14.25 percent of

registered  voters, 13.46  percent  of citizens  included in  the

master wheel, and 8.59 percent of those in the qualified wheel.

     In order  to make out  a prima  facie violation of  the fair

cross-section requirement of  the Sixth Amendment,  the defendant

must  show  (1) that  the group  allegedly underrepresented  is a

distinctive group  in the community, (2)  that its representation

in the  venires from  which  juries are  chosen is  not fair  and

reasonable in relation to the total number of such persons in the

community,  and  (3)  that  such  underrepresentation stems  from

systematic  exclusion  of  the  group  from  the  jury  selection

process.  Duren v. Missouri, 439 U.S. 357, 364 (1979).                                     

     The  district court  assumed that  the first  requirement --

distinctiveness  --  was  met as  to  non-whites  and  low income

persons.  We also assume the point.  In moving on to the issue of

fair and reasonable  representation, we  must reject  defendant's

first proposition cited above.   An assault on voter registration

lists  must   be  based  on  something  more   than  the  general

observation that  non-whites and  low income  people may  tend to

register to vote much less than more affluent or white people do.

Davenport, 824 F.2d  at 1514-15.   Nor do "numerical  disparities                   

resulting  from the use of voter-registration lists . . . violate

a defendant's Sixth Amendment rights."  United States v. Ireland,                                                                          

62 F.3d 227, 231 (8th Cir. 1995).

                               -16-

     When   we   further    consider   defendant's    statistical

presentation, we  recognize a  significant problem:   rather than

count non-whites and low income people on the  voter registration

lists,  and the master and  qualified jury wheels, defendant uses

Providence as a surrogate for  both groups.  Defendant's  premise

is  somewhat appealing,  but we  are not  convinced that  such an

approach is permissible.   Non-whites and  low income people  may

very well be  fairly represented  in both wheels  whether or  not

Providence  is.   And we have  the further  doubt created  by the

absence of information concerning the  proportion of Providence's

non-white (or  for that matter  its low income)  population which

has registered to vote.

     But if we overlook these questions, we still face the facts,

as  did the district  court, that the  absolute disparity between

Providence's representation  in the  voter registration  list and

that in the master jury wheel is .79% (14.25% - 13.46%); and that

the absolute disparity  in its representation in the  master jury

wheel and  in the qualified jury wheel is 4.87% (13.46% - 8.59%).

Even  the broadest  potential  comparison,  between  Providence's

representation in the state's  population of 18 and over  and its

representation in  the qualified  jury wheel, yields  an absolute

disparity of only  7.13% (15.72% - 8.59%).   As we recognized  in

Hafen, 726 F.2d at 23, absolute disparities of up to ten  percent               

are widely conceded not  to constitute underrepresentation.5  See                                                                           
                                                  

     5   Absolute disparity  measures the difference  between the
percentage of a distinctive group in a certain population and the
percentage of that group in a subset of that population.   In the

                               -17-

also Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992)  (14.1%                               

"borderline");  United States  v. McAnderson,  914 F.2d  934, 941                                                      

(7th  Cir. 1990) (8%  is de minimis); United  States v. Pepe, 747                                                                      

F.2d 632, 649 (11th Cir. 1984) (7.6% "well within . . . limits");

United States v. Butler,  611 F.2d 1066, 1069-70 (5th  Cir. 1980)                                 

(under 10% permissible).

     We see no reason to depart from this standard.   We think it

strikes   a   correct   balance   between    avoiding   egregious

discrimination and becoming  enmeshed with statistical approaches

aimed at unrealistic fine tuning.

     As for Duren's third  prong, the requirement that systematic                           

exclusion  be   shown,  we   have  already  ruled   out  reliance

simpliciter on voter registration  lists.  What would have  to be                     

demonstrated  would   be  either  "the  use   of  suspect  voter-

registration qualifications or  discriminatory administration  of

the jury-selection procedure."   Ireland,  62 F.3d at  232.   But                                                  

voter  qualification has never been in issue and the only showing

concerning creation of the qualified  wheel from the master wheel

is  defendant's offer of proof that a court officer would testify

that  persons were selected at random.  Defendant also raises the

possibility of abuse because names are drawn for new venires from

                                                  

jury  selection context,  this  figure is  generally achieved  by
subtracting the  percentage of a group on the jury wheel from the
percentage of that group  in the community.  Joost  has suggested
alternative  methods,   but  the   absolute  disparity  test   is
appropriate where, as here, the allegedly  underrepresented group
constitutes a very small proportion of the total population.  See                                                                           
United States  v. Pion, 25  F.3d 18, 23  (1st Cir. 1994);  United                                                                           
States v. Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984).                         

                               -18-

a  stable  qualified  list,  and someone,  sometime,  could  make

improper  use  of such  a  list.    This  is  too  remote  to  be

substantial.

     In  short,  the  challenges  to  the  juries  were  properly

dismissed. 

     7. Propriety of Instructions.                                           

     Defendant lodges  seven claims  of error in  instructing the

jury.  Only three merit specific treatment.

          a. The first contention, that the court refused to give

an  instruction on the intent necessary to violate the Hobbs Act,

is somewhat mystifying.  Defendant states in his reply brief that

both an intent to  agree and an  intent to execute the  agreement

are necessary.  But  he acknowledged that he was  writing without

access to the record.  In fact, the  precise instruction he seeks

was given by the court.

          b. Defendant  charges error in the  court's instruction

that  the jury  could consider  his  invocation of  the privilege

against self incrimination in evaluating  his testimony.  A court

may  instruct a  jury to go  further than  the court  did in this

case, i.e.,  that the jury could draw  an adverse inference.  See                                                                           

Caminetti  v. United  States,  242 U.S.  470, 494  (1917); United                                                                           

States v. Kaplan, 832  F.2d 676, 684 (1st Cir. 1987).   Defendant                          

has  confused a  situation where,  as here,  a person  (whether a

party  or a non-party witness)  invokes the Fifth  Amendment on a

matter  relevant to the issues before the court and the situation

where  a person invokes the  privilege when asked  about a matter

                               -19-

wholly beyond the scope of the issue at hand, as in United States                                                                           

v. Nunez, 668 F.2d 1116, 1122-23 (10th Cir. 1982).                  

          c. The court charged that  factual impossibility, which

occurs "when extraneous circumstances  unknown to the Defendant .

. .  prevent the consummation  of the  intended crime," is  not a

defense.  Defendant claims  that this was not applicable  because

he knew  at the  time  that the  armored car  was  not stored  in

Woonsocket.  But the jury need not have believed him.

          d. The  other challenges to instructions  are even less

weighty.   As  to two,  there was  no objection raised  after the

instructions.  As  for the court  referring to  Tracy as both  an

informant  and  an  accomplice,  the status  of  informant  alone

justified the charge.  And the charge as a whole left no doubt as

to the law that defendant was accused of violating.

                               -20-

     8.  Violation of Rule 30.                                       

     Fed. R. Crim.  P. 30  requires that opportunity  be given  a

party to object to an instruction out of the hearing and presence

of  the jury.  As noted above,  the jury twice requested that the

court reporter read the notes that she made from the June 29 tape

recording.  On the first occasion, the court told  the jury first

to listen  to the tape and that, if necessary, the reporter could

later read  her notes.  When  asked if he had  any "problem" with

that,  counsel for defendant stated  that the tape,  not what the

reporter heard, was  the evidence.  When the jury made its second

request for the reporter's  notes, the court asked counsel  if he

wished to  say anything.   Counsel stated  that he  had the  same

objection.   When the jury retired,  counsel moved unsuccessfully

for a mistrial on the ground that Rule 30 had been violated.

     The government  argues that Rule 30 is not applicable, since

the court was not giving any  instructions on the law, but merely

making a  trial ruling such  as requiring a  witness to  answer a

question.   We agree.   The entire focus  of the  rule is on  the

instructions  on the  law given by  a judge  at the  close of the

trial.  The objection addressed  by the rule is one made  to "any

portion  of the charge or  omission therefrom."   The incident at

issue here was not within the compass of Rule 30. 

     9.  Playing excerpts of tapes.                                            

     Many tape recordings were made  of defendant's conversations

with the detectives.   Excerpted portions of eight of  these were

allowed  to be  played to  the jury.   Defendant objected  to the

                               -21-

playing  of each  tape, usually  on three  grounds: authenticity,

defective chain of custody, and lack of completeness.  He did not

elaborate  on  his  objections,  nor did  he  suggest  additional

portions  that should be played.   He now  asserts that he wanted

the jury  to hear how the  conversations led up to  the excerpted

portions,  so  that  the  jury  would  see  that  discussions  of

particular  robberies  were just  part of  "a larger  plethora of

stories  Joost was  telling  the  agents  and  that  he  was  the                 

consummate prevaricator."

     Fed. R.  Evid. 106  allows a party  to supplement part  of a

recorded statement when the additional portion "ought in fairness

to be considered contemporaneously with it." The trial court must

have discretion  to conduct  what "essentially[] becomes  a line-

drawing exercise, to be  conducted case by case."   United States                                                                           

v. Boylan, 898 F.2d 230, 256 (1st Cir. 1990).  When confronted by                   

flat opposition to playing  any excerpts of eight  time consuming

tapes,  the court can hardly  be faulted for  not attempting more

sensitive editing.

     10. Refusal to recuse sua sponte.                                               

     Although defendant  made no motion for  the judge's recusal,

he contends  that 28  U.S.C.   455  required the judge  to recuse

herself sua sponte based on an ex parte conference with him.  The

underlying circumstances  involved the  judge's role,  before her

appointment to the bench,  as Disciplinary Counsel for the  Rhode

Island  Supreme Court.  During the judge's time in that position,

one  Freda  Salisbury  filed  a complaint  against  an  attorney.

                               -22-

Defendant informed the court at the conference that Salisbury was

his mother.   According to  defendant, Salisbury had  harsh words

with someone in the Disciplinary Counsel's office.  The complaint

was  dismissed and defendant spoke  to someone unknown  to him in

that office,  making strong  criticisms of both  the Disciplinary

Counsel and the process.  

     This case was  first assigned to  another judge.   Defendant

goes beyond  the record to  assert that  the judge who  heard the

case "had this case reassigned to herself  . . . in order to seek

retribution  against  [defendant]  for  accusations he  had  made

against her . . . ."  He charged at the ex parte hearing that the

reassignment followed  "the same pattern  of underhandedness  and

harassment [that] has continued since 1963. . . ."  

     The record  reveals  no indication  that the  judge had  any

prior knowledge that Salisbury  was defendant's mother.  Nor  was

there  any indication  that the  judge recalled  any conversation

with  defendant.   To argue  that the  judge should  have recused

herself sua  sponte on  the assumption  that a  reasonable person

would think  that she had  schemed to  have a case  reassigned in

order  to  obtain  revenge  based  on  a  long  since  terminated

disciplinary proceeding,  or that she willingly  joined a thirty-

two year old conspiracy, is too fanciful for further comment.

     11 - 13.  Miscellaneous challenges.                                                 

     Several alleged errors are so insubstantial that they may be

quite  summarily addressed.    Number 11  is  that a  motion  for

mistrial should have been granted based on a ten-day delay in the

                               -23-

trial occasioned by the collapse and medical treatment of defense

counsel.  The court's narration of the sequence of events and the

considerations underlying the  delay completely  persuades us  of

the propriety of her decisions.  

     Number 12  attacks  a conference  between  the judge  and  a

juror, when the juror refused to reenter the jury  room.  Whether

or not all counsel agreed that the judge should confer alone with

the juror  -- as  the government contends,  with some  confirming

indication in the  record -- it  is clear that  no objection  was

voiced when the  court reporter  read to counsel  the judge's  in

camera  conversation with  the juror.   Although  defense counsel

filed  a post-trial  affidavit  saying that  the  juror had  been

coerced  by other jurors, there was no evidence of any extraneous

influence  and the juror  herself did not  contact the  court.  A

jury  verdict is not so  easily impeached.   See United States v.                                                                        

Norton,  867 F.2d  1354, 1366  (11th Cir.  1989).   There was  no                

error.

     No. 13 alleges ineffective assistance of counsel, but, as we

have often held, where the record,  as here, does not contain all

the  relevant  facts, direct  appeal is  not  the route.   Absent

"extraordinary circumstances," the proper  vehicle is 18 U.S.C.  

2255.  United  States v. Bergodere,  40 F.3d  512, 517 (1st  Cir.                                            

1994).

     14.  Refusal of personal voir dire.  Appellant alleges error                                                 

in the court's  refusal of  his request to  voir dire  personally

prospective  jurors.  Local Rule 15 provides that at the close of

                               -24-

examination  of  jurors by  the  court, "the  court  shall afford

counsel  an  opportunity  to  further  interrogate  the  jurors."

Although a pretrial order had required each side to submit a list

of  all  questions  that  the  court  was  requested  to  ask  of

prospective  jurors, defendant did not  submit such a  list.  The

judge conducted  the questioning herself  and, at the  end, asked

defendant for  additional suggestions.  He  offered four: whether

prospective jurors would be  prejudiced if they heard disparaging

remarks  about the  police,  whether they  would  be offended  by

obscene remarks,  whether they understood and  respected the role

of  a  pro  se litigant,  and  whether  they  would be  adversely

affected if they knew a defendant had a criminal record.

     The court  correctly refused the last  instruction, since it

was  not then clear that prior criminal records would be admitted

into  evidence.   It had  interrogated a  number of  jurors about

their knowledge of and  relations with law enforcement personnel.

While not  in  the precise  form  advocated by  defendant,  these

questions  accomplished  roughly  equivalent inoculation  against

adverse reaction  to disparagement.  The court  gave a respectful

and  fair instruction about pro  se representation.   What it did

not  give  was  any   instruction  concerning  possible   adverse

reactions to obscene language.  

     It may  well  be that  the court  reasoned that  defendant's

failure to submit a  list of suggested questions stripped  him of

the  privilege  afforded by  Rule 15.   The  government, however,

proffers no reason for noncompliance with a rule that is facially

                               -25-

mandatory.   And  defendant  justifiably cites  United States  v.                                                                       

Diaz-Villafane,  874 F.2d  43, 46  (1st Cir.  1989) ("Once  local                        

rules have  been promulgated, lawyers  and their  clients have  a

right  to place  reasonable reliance  on them.")   But  we simply

cannot  find  that  lack  of  a  question  addressed  to  jurors'

reactions to obscenity

mandates reversal.  In the  context of the entire case  the error

was harmless.

     15.   Cumulative  errors.   Appellant  argues  that even  if                                       

individual errors do not  mandate reversal, the cumulative impact

of a  number of errors does.   But our analysis  reveals, for the

most part,  an absence of error.   The few instances  in which we

have  invoked   harmless  error  fall  far   short  of  revealing

"pervasive unfairness or any error or combination  of errors that

deprived  the  defendant[]  of  due process,"  United  States  v.                                                                       

Brandon, 17 F.3d 409, 456 (1st Cir. 1994).                 

     16. Sentencing Guideline issues.                                                

          a. Defendant first argues that his offense level should

have been determined by U.S.S.G.   2B3.1, the robbery  guideline,

instead of   2X1.1, the conspiracy guideline.  He claims that the

former does not permit added adjustments for intended  conduct --

several of which were imposed by the  district court -- while the

latter explicitly  allows adjustments  "for any  intended offense

conduct that can be established with reasonable certainty."

     Section 2X1.1(c)(1)  specifies  that when  a  conspiracy  is

expressly  covered  by  another  guideline  section,  the   other

                               -26-

guideline should be applied rather than   2X1.1.  In this case we

deal with a Hobbs Act  conspiracy under 18 U.S.C.   1951.   Until

November 1,  1993,  U.S.S.G.     2E1.5 (Hobbs  Act  Extortion  or

Robbery) signalled that a violation of 18 U.S.C.   1951 should be

governed by   2B3.1.

     This guideline  was deleted as of November 1, 1993, however,

leading the Second  Circuit in  United States v.  Amato, 46  F.3d                                                                 

1255, 1261 (1995), to  conclude that "[t]he deletion of    2E1.5,

with its cross-reference to   2B3.1, deletes the provision of the

Guidelines that  provided the `express' reference  making   2X1.1

inapplicable."  We agree  with  this conclusion,  and reject  the

earlier  cases  cited by  defendant.   The  bare reference  to 18

U.S.C.     1951,  along  with  several  other  statutes,  in  the

"Statutory Provisions" section of the Commentary in    2B3.1 does

not  rise to the level of constituting express coverage.  We also

reject defendant's argument that  Amato involved a faulty reading                                                 

of the significance of the deletion of   2E1.5.

     This  determination  forecloses  defendant's  argument  that

adjustments for specific offense conduct were impermissible  here

because they are not allowed under   2B3.1.

          b.     Defendant  challenges  the  sufficiency  of  the

evidence  for several adjustments to the base offense level.  The

first such issue arises from the court's action in increasing his

offense level by six  levels for the intended  use of a  firearm,

which was, although  not discharged,  to be  "otherwise used"  as

opposed    to   "brandished,    displayed   or    possessed."    

                               -27-

2B3.1(b)(2)(B).  It  is clear from  the taped conversations  that

defendant instructed  the detectives about the  possible need for

guns  to threaten  and perhaps  shoot guards  at the  armored car

facility.  Moreover, the  very robbery envisaged would inherently

involve the likelihood of confrontation  with guards and the  use

of weapons.  There was no error in making this adjustment.

     A  similar  set  of  circumstances justified  the  court  in

imposing a  two-level increase  for restraining a  person in  the

commission of the offense under    2B3.1(b)(4)(B).  Defendant had

outlined  how  a guard  would  be caught,  handcuffed,  and mouth

sealed with  duct tape.  Restraint of some such fashion was to be

expected in the type of robbery contemplated.

     The   court  also  imposed  a  six-level  enhancement  under

U.S.S.G.    2B3.1(b)(6)(G) to  reflect an intention  to inflict a

loss  between $2.5 million and $5 million.  The vice-president of

the  Meehan Armored Car company  testified that the  value of the

various  precious  metal   shipments  stored  overnight  in   the

Woonsocket  facility  averaged  $5   million.    These  were  the

materials that the guards would pick up at 3 a.m. for delivery in

New York City.  Defendant would require proof of the  exact value

of  the shipment  on  a given  day.   But  his  planning did  not

pinpoint a date  certain.  The  court was  well within reason  in

basing the enhancement on the range it chose.  Defendant fares no

better in  his equal  protection argument  based  on the  court's

finding  that  codefendant  Grelle's  sentence  should reflect  a

smaller amount.  Grelle's situation was different; the jury could

                               -28-

not,  after all, reach  a verdict as  to him; the  sentences were

truly individualized, reflecting differences in knowledge. 

     A  five-level  increase for  bodily injury  was sufficiently

founded  on   record  statements   by  defendant;  it   does  not

necessarily  overlap with  the  enhancement based  on  restraint,

since different actions could be taken against the two guards.  A

two-level enhancement for obstruction of justice was based on the

court's conclusion  that defendant's testimony was  false.  While

defendant maintains that he was just an accomplished prevaricator

in his talks  with the detectives, he obviously ran the risk that

he would be considered by judge and jury a prevaricator about his

alleged prevarications.

          c.   Factual  Impossibility:  a  bar  to  enhancements?                                                                           

     Defendant argues that even if factual impossibility is not a

defense to conspiracy, enhancements should not be imposed because

the  substantive offense could not have occurred.  His attempt to

distinguish  United States v.  Chapdelaine, 989 F.2d  28, 35 (1st                                                    

Cir.  1993), which  involved an  attempted robbery  that misfired

because the putative robbers arrived after their target truck had

left, does  not carry the day.  In both Chapdelaine and this case                                                             

the  defendants  were  convicted   of  conspiracy,  and  in  both

completion of  the  planned  action had  in  fact  been  rendered

impossible.   That no witness contradicted  defendant's testimony

that he knew that the armored car had left the facility is of  no

consequence; his  conviction stemmed from the  jury's belief that

he intended to commit the robbery. 

                               -29-

                               -30-

                            CONCLUSION                                      CONCLUSION

     In sum, we have carefully surveyed all of the arguments that

defendant  has vigorously  and  thoroughly made.   The  trial and

associated  proceedings were  both complex  and demanding  on all

concerned.   But while undoubtedly not perfect, the trial met the

basic standard of fairness.   The judgment is accordingly

     AFFIRMED.                       

                               -31-
