
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1199                                    UNITED STATES,                                      Appellee,                                          v.                                    TRENT MANNING,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Robert  B.  Mann  with  whom Mann  &  Mitchell  was on  brief  for            ________________             _________________        appellant.            Sheldon  Whitehouse, United  States Attorney, with  whom Assistant            ___________________        United States Attorneys were on brief for appellee.                                 ____________________                                    March 21, 1996                                 ____________________                      STAHL, Circuit Judge.   On May 6, 1994,  this court                      STAHL, Circuit Judge.                             _____________            vacated defendant-appellant Trent  Manning's convictions  for            possession with  intent to distribute cocaine  (Count I), use            of a firearm  during and  in relation to  a drug  trafficking            crime  (Count II), and possession of a firearm by a convicted            felon  (Count  III),  holding that  prosecutorial  misconduct            during  closing  arguments warranted  a  new  trial.   United                                                                   ______            States v.  Manning,  23 F.3d  570,  573-76 (1st  Cir.  1994).            ______     _______            After his  second jury  trial in  November  of 1994,  Manning            again was convicted on all three  counts.  Manning challenges            this latest round of  convictions, claiming that the district            court  erred in:   (1)  denying his  motion for  acquittal on            Count II, (2) admitting evidence of uncharged misconduct, (3)            denying his  request for  an expert, (4)  precluding evidence            and argument regarding  his potential  sentence, (5)  denying            his  motion to suppress evidence  found during the October 7,            1991 search, (6) instructing the jury, and  (7) responding to            the  jury's inquiry.  Finding no merit in Manning's first six            claims,  we  affirm  his convictions  on  Counts  I and  III.            Finding  that the district  court erred in  responding to the            jury's inquiry,  however, we  vacate Manning's  conviction on            Count II and remand Count II for a new trial.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                                         -2-                                          2                      Viewing the evidence in the light most favorable to            the verdict, United  States v. Wihbey, No. 95-1291,  slip op.                         ______________    ______            at 2 (1st  Cir. Feb. 6, 1996), we conclude  that a reasonable            jury could have found the following facts.                      Late in  the afternoon on October  7, 1991, several            members of the Providence Police Department executed a search            warrant  at Manning's  mother's house,  located at  151 Doyle            Avenue in  Providence,  Rhode Island.    Just three  or  four            minutes  before the  raid, Detective  David Lussier,  who had            known  Manning  for some  time, saw  Manning and  a passenger            drive  by his surveillance  position (in a  parking lot about            fifty yards from 151 Doyle Avenue with a direct view into its            rear  yard) in Manning's red Jeep Cherokee.  Fearing that eye            contact  with  Manning  had  compromised   his  surveillance,            Lussier ordered that the warrant be executed.                      Thereupon, Detective Joseph  Lennon approached  the            rear of 151  Doyle Avenue and saw  Manning, whom he knew  and            with  whom  he had  conversed  on  other occasions,  standing            outside  the Cherokee and in  front of the  garage, holding a            brown  briefcase in his left hand.  Lennon identified himself            as a police officer  and, with gun drawn, ordered  Manning to            stop.   Manning, ignoring this directive,  walked slowly into            the garage with   briefcase in hand, closing and  locking the            door  behind  him.     Manning's  rottweiler,  loose  in  the            driveway, delayed  Lennon's pursuit  of Manning for  three to                                         -3-                                          3            five  minutes.   Once  inside  the garage,  Lennon  found and            seized  the briefcase and its contents, inter alia:  two bags                                                    _____ ____            of cocaine weighing 124.64 grams, various drug paraphernalia,            a  loaded 9  millimeter handgun, and  six copper  pipe bombs.            Lennon  did  not, however,  find  Manning  in his  subsequent            search of the house.                      Meanwhile,  Lussier, having ordered the raid, drove            to the front of 151 Doyle Avenue, entered the front door, and            proceeded  to the  basement, where  he found a  broken window            through which Manning  had likely escaped.   One week  later,            Manning turned himself in to the police.                                                II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Motion for Acquittal            ________________________                      Manning argues that there was insufficient evidence            to  support his  conviction for  using a  destructive device1            during  and in relation to  a drug trafficking  crime, and so            the district  court erred in denying his motion for acquittal            on Count II.  We review the district court's disposition of a            motion for acquittal  de novo, viewing the evidence,  and all                                  __ ____            reasonable  inferences that  may be  drawn therefrom,  in the                                            ____________________            1.  18  U.S.C.    921(a)(3)  defines "firearm"  to mean  "any            destructive device."   Section 921(a)(4) defines "destructive            device" to mean "any explosive, incendiary, or poison gas . .            . bomb."                                           -4-                                          4            light most favorable  to the  government.   United States  v.                                                        _____________            Loder, 23 F.3d 586, 589-90 (1st Cir. 1994).            _____                      Approximately  one month  after  oral arguments  in            this case, the Supreme Court decided Bailey v. United States,                                                 ______    _____________            116 S. Ct.  501 (1995), and concluded that "use" of a firearm            in  18 U.S.C.     924(c)(1) means  "active employment  of the            firearm" which "includes brandishing,  displaying, bartering,            striking with,  and most  obviously, firing or  attempting to            fire, a  firearm."  Id. at  505, 508.  Our  careful review of                                ___            the  record  reveals  that  the  government's  evidence   was            insufficient  to show "use"  under the Bailey  standard.  The                                                   ______            government  did not  present  any evidence  that Manning  had            brandished,   displayed,   bartered,  struck   someone  with,            fired/detonated or  attempted to  fire/detonate either  the 9            millimeter  handgun or  the  six pipe  bombs.   The  evidence            presented at trial  was simply that  Manning had carried  the            briefcase  containing the  gun, pipe  bombs, drugs,  and drug            paraphernalia into the garage of 151 Doyle Avenue and nothing            more.                      The  reach  of  18  U.S.C.     924(c)(1),  however,            extends  beyond the  use  of a  firearm.   Section  924(c)(1)            applies to any person who either "uses or carries a firearm."                                                   __________            18 U.S.C.   924(c)(1) (emphasis added).  At issue, therefore,            is whether  the government succeeded  in presenting  evidence            sufficient  to show  that Manning  was guilty  of  carrying a                                                               ________                                         -5-                                          5            firearm during and in relation to any drug trafficking crime.            Conviction   under     924(c)(1)   requires  proof  beyond  a            reasonable  doubt  that  Manning:  (1)  committed  the   drug            trafficking crime of possession  with intent to distribute as            charged in  the indictment, (2) knowingly  carried a firearm,            and (3) did so during and in relation to the drug trafficking            crime.   See United States  v. Wilkinson, 926  F.2d 22, 25-26                     ___ _____________     _________            (1st Cir.), cert. denied, 501 U.S. 1211 (1991), and overruled                        _____ ______                        ___ _________            on other  grounds  by Bailey,  116 S.  Ct. at  509.   Because            __ _____  _______  __ ______            Manning has not challenged the sufficiency of the evidence of            the first element, we  restrict our analysis to the  last two            elements and consider each in turn.                      By  narrowing  the   interpretation  of  "use"   to            instances of  active employment, the Bailey  Court recognized                                                 ______            that  the "carry"  prong  would take  on a  new significance.            Accordingly, the  Court  remanded Bailey  and  its  companion                                              ______            case, Robinson v. United States, No. 94-7492, to the District                  ________    _____________            of  Columbia Circuit  to  consider liability  for Bailey  and            Robinson under the "carry" prong of   924(c)(1).  Bailey, 116                                                              ______            S.  Ct. at 509.   In Bailey  and Robinson,  the firearms were                                 ______      ________            found in  the trunk  of a  car and  in  a locked  trunk in  a            bedroom closet,  respectively.   Id. at 503-04.   Determining                                             ___            whether firearms  found in these locations  were carried will            require  the District of Columbia Circuit  to test the limits            of  the proper understanding of  "carry" in    924(c)(1).  We                                         -6-                                          6            need not determine the precise contours  of the "carry" prong            here,  however,  as  Manning's  actions  meet any  reasonable            construction of the word.  See Smith v. United States, 113 S.                                       ___ _____    _____________            Ct.  2050,  2054 (1993)  (noting  that words  not  defined by            statute should be given their ordinary or common meaning).                      The word  "carry" is variously defined  as "to move            while supporting (as . . . in one's hands or arms)," "to move            an  appreciable  distance without  dragging,"  and  "to bring            along to  another place."  Webster's  Third New International                                       __________________________________            Dictionary  343 (1986).    Manning's alleged  actions readily            __________            meet  all of these definitions.  The government presented the            testimony of  Detective Lennon  that he saw  Manning standing            outside his  Cherokee and in front of the garage of 151 Doyle            Avenue, holding the briefcase; that he watched Manning, while            holding the briefcase in his left hand, walk into the garage;            and that minutes  later upon discovering the briefcase in the            garage,  he opened  it  and found,  inter  alia, a  loaded  9                                                _____  ____            millimeter handgun  and six pipe  bombs.  A  reasonable juror            could  easily conclude  from this  evidence that  Manning had            carried  the handgun  and pipe  bombs.   In walking  from the            Cherokee to  the garage  while holding  the briefcase  in his            left  hand,  Manning  certainly  was "moving"  the  briefcase            "while  supporting" it  in  his hand.    And if  Manning  was            carrying  the  briefcase,  he  necessarily  was  carrying the            contents thereof, namely, the handgun and pipe bombs.                                         -7-                                          7                      The government also  presented ample evidence  from            which a reasonable juror  could conclude that Manning carried            the gun and bombs "during" and  "in relation to" the crime of            possession with intent to  distribute.  Evidence that Manning            carried the gun and pipe bombs contemporaneously with the two            bags of cocaine and  the drug paraphernalia readily satisfies            the  "during" requirement.    See United  States v.  Luciano-                                          ___ ______________     ________            Mosquera,  63 F.3d 1142,  1151 (1st Cir.  1995) (holding that            ________            gun  "carried at  a time  when the  offense was  in progress"            constituted "during" for purposes  of   924(c)(1)).  Evidence            that  Manning carried the gun and bombs in the same briefcase            as  the   drugs  readily  satisfies  the   "in  relation  to"            requirement.   Because the government presented evidence that            could establish  each of  these elements beyond  a reasonable            doubt,  we affirm  the district  court's denial  of Manning's            motion for acquittal on Count II.                     B.  Admissibility of Evidence of Uncharged Misconduct            _____________________________________________________                      Manning argues  that the  district  court erred  by            allowing the prosecutor to  cross-examine him about his prior            drug dealing  and  to introduce  the  items seized  from  the            basement of 151 Doyle Avenue.  Manning's attorney objected to            the introduction of this evidence as impermissible "uncharged            misconduct" evidence under  Fed. R. Evid. 404(b)  and, in the            alternative,  unduly prejudicial  under  Fed. R.  Evid.  403.            After reciting the standard  of review, we consider Manning's                                         -8-                                          8            testimony on cross-examination and  the items seized from the            basement, in turn.                       Because the  admission of Rule  404(b) evidence  is            committed to the sound discretion of the trial judge, we will            reverse  on appeal  only  for abuse  of  discretion.   United                                                                   ______            States v. Garcia,  983 F.2d 1160, 1172  (1st Cir. 1993).   We            ______    ______            will  reverse a district court's  Rule 403 balancing "only in            'exceptional circumstances.'"   Id. at  1173 (quoting  United                                            ___                    ______            States  v. Garcia-Rosa,  876 F.2d  209, 221 (1st  Cir. 1989),            ______     ___________            cert. denied, 493 U.S. 1030 (1990)).            _____ ______                      On  cross-examination, the  prosecutor successfully            elicited  testimony  from  Manning  about  his  drug  dealing            efforts  prior to  October 7, 1991.   In  particular, Manning            testified that he had previously  sold cocaine; that he would            package the cocaine in  a specific type of plastic  bag; that            he  weighed  drugs on  two  particular scales;  and  that, as            denoted by  his  handwriting in  his  drug ledger,  he  would            distribute 100 bags of cocaine every two days to a particular            location.   The prosecutor also questioned  Manning about his            use of a  pager and the source  of his drug  supply.  All  of            this was done over the objection of Manning's attorney.                        Rule  404(b) provides  that  although  evidence  of            other crimes,  wrongs, and  acts is  not admissible  to prove            criminal propensity, it may  be admissible for other purposes            that  do  not involve  character,  such as  proof  of intent,                                         -9-                                          9            preparation, knowledge  or absence  of mistake.   Garcia, 983                                                              ______            F.2d at 1172.  Moreover, when charges of drug trafficking are            involved,  this  court  has  often upheld  the  admission  of            evidence  of prior  narcotics involvement to  prove knowledge            and intent.  See United States v. Hadfield, 918 F.2d 987, 994                         ___ _____________    ________            (1st Cir.  1990) (collecting  cases), cert. denied,  500 U.S.                                                  _____ ______            936 (1991).  Manning  was charged in Count II  with knowingly            possessing  the two bags of cocaine in the briefcase with the            intent  to distribute them.   Manning's  statements regarding            his prior drug dealing are highly  probative of the knowledge            and intent  elements  of that  offense.   The  evidence  that            Manning had previously sold cocaine makes it more likely both            that he was aware of the contents of the plastic  bags in the            briefcase  and that he intended to distribute the two bags of            cocaine.                      Having  determined  that Manning's  statements were            probative, we must consider whether their probative value was            substantially outweighed by  their prejudicial effect.   Fed.            R. Evid. 403.   The district court minimized  any prejudicial            impact  of the prior drug dealing evidence by instructing the            jury, contemporaneously and again  in its final instructions,            about the proper  use of prior bad act evidence.   See United                                                               ___ ______            States  v. Powell, 50 F.3d  94, 101 (1st  Cir. 1995) (finding            ______     ______            that  limiting  instruction  insulated   against  prejudicial            impact); see  also, Richardson  v. Marsh,  481 U.S. 200,  206                     _________  __________     _____                                         -10-                                          10            (1987) (holding that reviewing court  typically presumes jury            followed instructions).  Given the district  court's limiting            instructions  and its  broad  discretionary power  to balance            probative  value against  prejudicial effects, we  cannot say            that the  district court  abused its discretion  in admitting            the evidence of Manning's prior drug dealing.                      Manning  also  challenges   the  district   court's            admission  of items  such as  scales, bags,  glassine packets            stamped "Super  Power" and  "Hot Pursuit," rubber  bands, and            straws,  seized  from the  basement and  garage of  151 Doyle            Avenue.  Manning's assertion,  however, that the items seized            are  governed by  Rule  404(b) is  wide  of the  mark.   Rule            404(b), by its very terms, excludes only extrinsic evidence--            "evidence of other crimes,  wrongs, or acts"--whose probative            value  exclusively  depends  upon  a forbidden  inference  of            criminal propensity.   Hadfield, 918 F.2d  at 994.   Evidence                                   ________            intrinsic to the crime  for which the defendant is  on trial,            accordingly, is not governed  by Rule 404(b).  United  States                                                           ______________            v. Tutiven,  40 F.3d  1, 5  (1st Cir.  1994) ("The cases  are               _______            legion in which similar intrinsic circumstantial evidence has            been  admitted   without  occasioning  either   challenge  or            analysis under Rule 404(b)."), cert. denied, 115 S. Ct.  1391                                           _____ ______            (1995).                        The  items  seized  from  151  Doyle  Avenue   most            certainly  qualify as  intrinsic to  the crime  of possession                                         -11-                                          11            with  intent to  distribute with  which Manning  was charged.            During the  search on October 7, 1991, each of the items were            found in the  basement of  151 Doyle Avenue,  save one  scale            discovered  in the  garage.   Should a  juror have  chosen to            believe  that Manning  occupied the  basement bedroom  of 151            Doyle Avenue,2 the existence  of the drug paraphernalia there            is directly  probative of  both Manning's knowledge  that the            bags in the briefcase contained cocaine and  his intention to            distribute  that cocaine.  See United States v. Nason, 9 F.3d                                       ___ _____________    _____            155,  162 (1st  Cir.  1993) (upholding  admission of  scales,            bags,  and  baggies  seized  from motel  room  registered  to            defendant's girlfriend  at time of defendant's  arrest on the            marijuana charges  for which he was on  trial), cert. denied,                                                            _____ ______            114 S. Ct. 1331 (1994).  The district court did not abuse its            discretion in admitting the drug-paraphernalia evidence.            C.  Request for an Expert            _________________________                      Manning  also  complains  that  the  district court            erred in  denying his request  for appointment of  an expert.            The Criminal  Justice Act, 18 U.S.C.    3006A(e)(1), provides            that  "a person who  is financially  unable to  obtain .  . .            expert  . . . services necessary for an adequate defense" may            obtain them  after demonstrating in an ex  parte hearing that                                                   __  _____                                            ____________________            2.  The government presented evidence  from which the  jurors            could draw such a  conclusion.  For instance,  the government            introduced  pager and  veterinary  bills  addressed to  Trent            Manning,  151 Doyle  Avenue and  police testimony  that these            bills were found in the basement bedroom area.                                           -12-                                          12            such services are "necessary."  A  district court's denial of            a request  for such services is reviewed only for an abuse of            discretion.   United States v. Mateos-Sanchez,  864 F.2d 232,                          _____________    ______________            240 (1st Cir. 1988);  United States v. Fosher, 590  F.2d 381,                                  _____________    ______            384 (1st Cir. 1979).                      At the  hearing on  this issue,  Manning's attorney            requested the expert services  of a retired Providence police            officer  who  purportedly  would  have  testified  about  the            inadequacies   in   the   Providence    Police   Department's            investigation of  Manning's case.  In  particular, the expert            would  have  highlighted the  police's  failure  to test  the            broken glass of  the basement window for  fingerprints and to            trace the origins of the pipe bomb components.                        Generally,   expert   services   have  been   found            necessary when the proffered  expert testimony was pivotal to            the  indigent defendant's defense.   See  Mateos-Sanchez, 864                                                 ___  ______________            F.2d  at  239-40.    For instance,  courts  have  appointed a            fingerprint  expert when  a  fingerprint, alleged  to be  the            defendant's,  was  the  primary   means  of  connecting   the            defendant to the crime, see United States v. Durant, 545 F.2d                                    ___ _____________    ______            823,  827  (2d  Cir.  1976),  and  a  psychiatrist  when  the            defendant's sanity at the  time of the offense was  at issue,            see  United States v. Williams,  998 F.2d 258,  264 (5th Cir.            ___  _____________    ________            1993), cert.  denied,  114  S.  Ct. 940  (1994).    Manning's                   _____  ______            proffered  expert testimony  on  the adequacy  of the  police                                         -13-                                          13            investigation, however, was not  critical or necessary to his            defense.                        Manning   was  charged   with  using   or  carrying            destructive  devices  during  and   in  relation  to  a  drug            trafficking  crime.    Whether Manning  had  manufactured the            bombs was not  at issue.   The proffered  testimony that  the            police failed to trace the bomb components, therefore, cannot            be  said  to be  central to  Manning's  defense of  Count II.            Given  the  eyewitness  testimony  of  Manning  carrying  the            briefcase and all the physical evidence found in the basement            and garage,  including a scale with  Manning's fingerprint on            it,  the   expert  testimony  on  the   police's  failure  to            fingerprint  the broken  glass  from the  basement window  is            likewise peripheral to Manning's defense of Count II.3                         Moreover,  as the  district court  noted, Manning's            proffered expert testimony about  whether or not a particular            police act  or  omission was  good  police practice  had  the            potential of  confusing the jury and  diverting its attention            from its task of assessing the  adequacy of the prosecution's            evidence on the issue of guilt.  Upon  these facts, we cannot            say that the district court's denial of Manning's request for                                            ____________________            3.  We also  note that Manning's  attorney was able  to place            these alleged  investigative shortcomings before  the jury on            cross-examination of the officers.                                         -14-                                          14            appointment  of  the proffered  expert  was an  abuse  of its            discretion.4                     D.  Jury Nullification            ______________________                      At  two points  during  trial,  Manning's  attorney            attempted  to  alert  the  jury  to  the  potential  term  of            imprisonment Manning  would face  if convicted on  Count II.5            During  Manning's  direct  examination,   Manning's  attorney            requested the  court's permission to ask  Manning whether, in            October  of 1991, he was aware of the substantial prison term            facing someone  found using or carrying  a destructive device            during  and in  relation to  a drug  trafficking crime.   The            district court denied the  request as irrelevant, noting that            sentencing matters are entrusted to the judge, not the  jury.            At the  close of all  the evidence, Manning's  attorney again            approached the court at sidebar, this time seeking permission            to  appeal, in his closing  argument, to the  jury's power of            nullification  by  informing  the  jury of  the  prison  term            Manning  would face if convicted  of Count II.   The district            court also denied this request, invoking the rationale it had            used earlier.                                                     ____________________            4.  This is not to  say, however, that expert opinion  on the            adequacy of a police investigation  can never be necessary to            an indigent defendant's defense nor do we so rule.            5.  Under   924(c)(1), using or carrying a destructive device            carries a mandatory thirty-year prison term.                                         -15-                                          15                      Because we reverse Manning's conviction on Count II            for  jury coercion, see part  II.G. infra, we  need not reach                                ___             _____            this  issue.   We  nonetheless  offer  the following  cursory            analysis  of  the  second  argument  as  guidance.    We have            consistently held that a district  court may not instruct the            jury  as  to its  power  to nullify.   See  United  States v.                                                   ___  ______________            Sepulveda, 15 F.3d  1161, 1190 (1st Cir. 1993), cert. denied,            _________                                       _____ ______            114  S. Ct. 2714 (1994); United States v. DesMarais, 938 F.2d                                     _____________    _________            347,  350 (1st  Cir.  1991); Garcia-Rosa,  876  F.2d at  226;                                         ___________            United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969),            _____________    ________            cert.  denied, 397 U.S. 991 (1970).  An attorney's attempt to            _____  ______            achieve the same  end indirectly, by arguing  the severity of            the punishment to  the jury, is  equally impermissible.   See                                                                      ___            United  States v.  Calhoun, 49  F.3d 231,  236 n.6  (6th Cir.            ______________     _______            1995) (holding that  a defendant  did not have  the right  to            inform the jury  of possible  punishment or of  its power  to            nullify a law  or sentence);  cf. United States  v. Coast  of                                          ___ _____________     _________            Maine  Lobster Co.,  538  F.2d 899,  903-04  (1st Cir.  1976)            __________________            (holding  that  prosecutor's  televised  comment  that  white            collar  criminal sentences  are  too  small, communicated  to            jurors  of  ongoing  white  collar  criminal  trial,  created            reversible error).            E.  Motion to Suppress            ______________________                      Before his  first trial, Manning  moved to suppress            the evidence found during  the October 7, 1991 search  of 151                                         -16-                                          16            Doyle Avenue.  After a hearing, the district court denied the            motion.  Manning  later objected  to the evidence  as it  was            offered at trial and then raised the objection on appeal.  We            did  not  address  the  suppression  issue,  however,  having            ordered  a  retrial on  other grounds.    On appeal  from his            second trial, Manning again asks us to consider  the legality            of  the search.  This  time, Manning had  neither renewed his            suppression  motion  nor  registered  his  objection  to  the            admission  of the  evidence below.   While  Manning maintains            that this was unnecessary because the  decisions of the first            trial  judge are the law of the case, the government contends            that his suppression arguments are waived.  We need not enter            this  thicket,  however,   because  assuming  arguendo   that                                                          ________            Manning's arguments  are preserved,  we find that  they still            fail.                      Manning attacks the district court's denial  of his            suppression motion  on two grounds.   First, Manning contends            that  the affidavit  supporting the  search warrant  does not            establish  probable   cause,  citing  the  staleness  of  the            information regarding the confidential informant's controlled            buy,  the  dearth  of   information  about  that  informant's            credibility, and  a general lack of detail.   Second, Manning            contests the district court's refusal to conduct an in camera                                                                __ ______            proceeding  to  test  the  reliability  of  the  confidential            informant ("CI")  regarding  the  controlled  buy.    Manning                                         -17-                                          17            argues that an in camera review was necessary to his mounting                           __ ______            a  Franks  challenge6  to   the  accuracy  of  the  officer's               ______            statements in  the affidavit supporting  the search  warrant.            After summarizing the affidavit, we consider Manning's second            claim first.                      On October 7, 1991,  to support his application for            a  warrant  to search  151  Doyle  Avenue, Detective  Lussier            attested  to  the  following  facts.   "During  the  past few            weeks," while Lussier was investigating marijuana trafficking            at 151 Doyle Avenue, Manning had used keys to enter 151 Doyle            Avenue  and appeared to be  living there.   While Manning was            home,  several people had come to  the rear door of the house            and  stayed for  only a  short time.   Lussier  took numerous            phone  complaints about  narcotics trafficking  at 151  Doyle            Avenue.    A  CI,  who  had  bought  marijuana  from  Manning            previously,  made a controlled buy  from Manning at 151 Doyle            Avenue.   Before the buy,  Lussier searched the  CI for money            and contraband, gave the CI money, and witnessed the CI enter            the rear of the house.                                            ____________________            6.  Under Franks v. Delaware, 438  U.S. 154, 155-56 (1978), a                      ______    ________            defendant   may   overcome   the   presumption   of  validity            surrounding  affidavits supporting search warrants and obtain            an   evidentiary   hearing,  if   he  "makes   a  substantial            preliminary  showing  that  a false  statement  knowingly and            intentionally, or with reckless  disregard for the truth, was            included  by the affiant in the warrant affidavit, and if the            allegedly  false statement  is  necessary to  the finding  of            probable cause."                                           -18-                                          18                      We   recognize  that   when  an   affidavit  relies            primarily on information  provided by a CI, a  defendant will            lack  the information needed to  make a Franks  showing.  See                                                    ______            ___            United States v. Higgins, 995 F.2d 1, 3 (1st Cir.  1993).  In            _____________    _______            such cases,  where the  defendant challenges the  accuracy of            the  affidavit  but  has  failed  to  make  the  "substantial            preliminary  showing"  required  by  Franks,  the  court  may                                                 ______               ___            conduct an  in camera interview of  the officer-affiant, and,                        __ ______            if  necessary, of  the  informant.    See  United  States  v.                                                  ___  ______________            Southard, 700 F.2d  1, 10-11  (1st Cir.),  cert. denied,  464            ________                                   _____ ______            U.S. 823  (1983).  A district court is not required to do so,            however;  the decision  whether  an in  camera proceeding  is                                                __  ______            needed  to  test  the  officer-affiant's7  credibility  rests            entirely  with the  district  court.   See  United States  v.                                                   ___  _____________            Jackson,  918 F.2d  236, 241 (1st  Cir. 1990).   We  review a            _______            district court's denial  of a defendant's  request for an  in                                                                       __            camera proceeding for abuse of discretion.  See United States            ______                                      ___ _____________            v. Valerio, 48 F.3d  58, 62-63 (1st Cir. 1995);  Higgins, 995               _______                                       _______            F.2d at 3.                      Manning argues  that he  presented evidence  at the            suppression  hearing  sufficient   to  contradict   Lussier's            statements in the affidavit  and thereby require the district            court  to question his  credibility.  Specifically, Manning's                                            ____________________            7.  Franks only  allows impeachment  "of the affiant,  not of                ______            any nongovernmental informant."  Franks, 438 U.S. at 171.                                             ______                                         -19-                                          19            mother testified that she was home all day on October 7, 1991            and that  no sale of drugs could have taken place in her home            without her knowledge.   Manning's attorney told the district            court that, although the affidavit does not specify the  date            of the controlled buy, he recalled that a police officer, not            Lussier, had  testified at  the preliminary  examination that            the buy took  place on  October 7, 1991.   Manning  concludes            from these two facts  that the controlled buy could  not have            taken place on October  7, 1991, and therefore, that  Lussier            must have lied.                            As  the  district  court  recognized,  however, two            problems inhere in this reasoning.  First, the affidavit does            not provide that  the controlled buy  occurred on October  7,            1991.8   Second,  even if  it did,  Mrs. Manning's  testimony            does not "preclude at all the possibility that Officer .  . .            Lussier is telling  the truth."   Mrs. Manning admitted  that            Manning was at 151  Doyle Avenue for at least some  period of            time on  October 7, 1991, and  she did not claim  that he was            never  out of  her  sight.    Given  the  tenuous  basis  for            Manning's  challenge  to  Lussier's  veracity,  the  district            court's denial of  Manning's request for an  in camera review                                                         __ ______            was well within its discretion.                                            ____________________            8.  We  find  no clear  error  in  the district  court's  not            accepting Manning's attorney's  recollection that an  unnamed            police  officer,  not  present  during  the  controlled  buy,            testified  at  the  preliminary  examination  that  the   buy            occurred on October 7, 1991.                                         -20-                                          20                      Having so decided, we quickly  dispose of Manning's            challenge to the validity  of the search warrant for  lack of            probable cause.   Assuming  arguendo that Manning  is correct                                        ________            about the warrant's invalidity, we nonetheless agree with the            district court's conclusion that  the "good faith"  exception            to  the exclusionary  rule  applies here.   United  States v.                                                        ______________            Leon, 468 U.S.  897, 913 (1984).  In  Leon, the Supreme Court            ____                                  ____            held  that,  with limited  exception,  the  exclusionary rule            should not  apply when police  officers reasonably rely  on a            warrant that subsequently is  determined to be invalid.   468            U.S.  at 922.   Upon  de novo  review, see  United States  v.                                  __ ____          ___  _____________            Zapata, 18 F.3d 971, 975  (1st Cir. 1994) (reviewing district            ______            court's   "ultimate   constitutional   conclusions"    in   a            suppression order de novo),  we find that Lussier's affidavit                              __ ____            had  ample indicia  of  probable cause  "'to render  official            belief  in its existence'" reasonable.  Leon, 468 U.S. at 923                                                    ____            (quoting  Brown  v. Illinois,  422  U.S.  590, 610-11  (1975)                      _____     ________            (Powell, J.,  concurring in  part)).  Accordingly,  we affirm            the district court's  denial of  the motion  to suppress  the            items seized from 151 Doyle Avenue.             F.  Jury Instructions            _____________________                      Manning   raises   two  challenges   to   the  jury            instruction  defining  the offense  of  using  or carrying  a            firearm  during and in relation to  a drug trafficking crime.            First,  he argues that the  district court failed to instruct                                         -21-                                          21            the jury that the destructive devices must have actually been            used.   Second, he claims  that the court  failed to instruct            that  the  destructive  devices  must  have  facilitated  the            charged crime  of possession  with intent to  distribute, and            not some other past or future drug trafficking crime.                        Our reversal  of Manning's  conviction on  Count II            for  jury coercion,  see part  II.G. infra,  however, renders                                 ___             _____            consideration  of the  legality  of the  court's    924(c)(1)            instruction unnecessary.9            G.  Responses to Jury's Inquiry            _______________________________                      Manning contests the  district court's responses to            a specific  jury query on two grounds:  (1) that the district            court's response was tantamount to  a directive that the jury            must reach  a verdict on Count II,  and (2) that the district            court did not cure this harm  by polling the jurors --  after            they had reached a verdict but before the verdict was taken -            -  on whether  they had  felt compelled  to reach  a verdict.            Mindful  of the  district  court's broad  discretion in  "the                                            ____________________            9.  Although its   924(c)(1) instruction initially made clear            that the  predicate drug trafficking crime  was possession of            cocaine with intent to  distribute it as charged in  Count I,            in later instructions, the  district court stated that "there            must  be proof that the firearm was  connected to or played a            role  in  the  commission   of  a  drug  trafficking  crime."                                            _            (Emphasis  added).   In future  instructions, we  caution the            district court to endeavor to avoid generic references  to "a            drug  trafficking crime"  when  referring to  the  particular            predicate offense.                                           -22-                                          22            giving, or withholding, of a supplemental instruction, or the            contents of it if  given," United States v. Parent,  954 F.2d                                       _____________    ______            23, 25 (1st Cir. 1992), we nonetheless find that the district            court  transgressed the  bounds of  its discretion  under the            unusual  set of  circumstances that  unfolded after  the jury            retired to  deliberate.  See  United States  v. Akitoye,  923                                     ___  _____________     _______            F.2d  221,  227 (1st  Cir.  1991)  (reviewing  for  abuse  of            discretion district court's denial  of jury's request to have            testimony read back).  We outline the relevant history.                        The jury  began its deliberations  in earnest10  on            the morning  of November 22,  1994.   After a few  hours, the            jury sent the court a note, asking "Which scale  was found in            the bedroom  and which  scale  had the  fingerprint?"   After            consulting  the parties,  the district  court responded,  "It            would  not be  proper for me  to tell  you what  the evidence            establishes or does not establish.  That's a matter that only            you   can  determine."     Later,   the  jury   sent  another            communication  to the  court, this  time stating, "We  do not            have an [sic] unanimous  decision on Count Number Two.   Must            we  continue to discuss  until we have?   It is apparent that            we'll  not change our minds."   At a  chamber conference with            both  counsel,  the court  proposed  the  following response:                                            ____________________            10.  The court submitted  the case to  the jury the  previous            evening.    After   deliberating  for  approximately  fifteen            minutes, however, the jury chose to go home and reconvene the            next morning.                                         -23-                                          23            "Would reading any portion of the testimony to you assist you            in reaching  a decision?  If so, please tell me what portions            of testimony  of which witness  you would like."   Perceiving            deadlock  on Count  II,  Manning's attorney  objected to  the            court's  response  and   moved  for  a  mistrial.     In  the            alternative, he  proposed that  the response advise  the jury            that  it was not  obliged to reach  a verdict.   The district            court denied  the motion,  rejected the suggestion,  and sent            its suggested response.                      The jury then informed the court, "We would like to            hear testimony from  Officer Lennon and Agent Lennon."   Over            Manning's continued objection, the  court replied, "Is  their            [sic] any particular portion or portions of the testimony  of            Officer Lennon or Agent Lennon that would be helpful to you?"            After receiving  no reply, the  district court had  the clerk            ask the  jurors whether they wished  to continue deliberating            or go home  and return the next  day.  Thereafter, the  court            received a  note stating  that a  verdict  had been  reached.            Apparently concerned about the effect of its second response,            the district  court, before  taking the verdict,  queried the            jury collectively in open court as follows:                      I just wanted to  make sure before I even                      ask  about the  verdict whether  there is                      anybody here who is under  the impression                      that you were required  to reach an [sic]                      unanimous decision.  If you didn't, you'd                      be  kept here until you did.  I wanted to                      make   sure   nobody   is    under   that                      impression,  had the  feeling you  had to                                         -24-                                          24                      reach  an agreement because you felt that                      you would  be kept here until  you did or                      because you  felt  that you  had  to  all                      agree in  order to be released  from jury                      service.   Is there  any of you  that had                      that feeling?            No  juror responded to the  inquiry.  The  jury then returned            its verdict of guilty on all counts.                       This  court   has  recognized  that   when  a  jury            indicates that  it  is  deadlocked,  a  supplementary  charge            instructing it to return  and attempt to reach a  verdict may            prejudice a  defendant.   See United  States v.  Angiulo, 485                                      ___ ______________     _______            F.2d 37, 39  (1st Cir. 1973).   For instance, "such  a charge            may cause a  jury to  agree when they  might otherwise  never            have  come to  agreement,  thereby losing  for the  defendant            whatever  safeguard he  might  have had  in  a hung  jury,  a            declaration  of  mistrial,  and  either  a  new  trial  or  a            subsequent decision by the prosecutor not to retry the case."            Id.    Accordingly, we  have  instructed  district courts  to            ___            include three  elements in  any such supplementary  charge to            ameliorate its  prejudicial effect.   Id.   A  district court                                                  ___            should instruct jurors in substance that (1) members  of both            the  majority   and  the  minority   should  reexamine  their            positions, (2) a jury has the right to fail to agree, and (3)            the burden of proving guilt beyond a reasonable doubt remains            with the government.  Id.                                    ___                      Having indicated  that it  was deadlocked  on Count            II, the jury in the present case proceeded to inquire whether                                         -25-                                          25            it  was obliged to reach a verdict  on Count II.  Rather than            answering this  pointed question "yes" or  "no," the district            court responded with a question:   "Would reading any portion            of the testimony to  you assist you in reaching  a decision?"            This response not  only failed to discourage  the notion that            the jury was bound to continue to deliberate indefinitely, it            suggested the opposite, i.e.,  that a jury is required  to do                                    ____            so.11   Having asked whether continued  deliberation on Count            II  was necessary, and being offered a review of testimony in            response, a rational lay  jury could reasonably have inferred            that  the court wanted it  to reach a  verdict, regardless of            whether it could do so in good conscience.                        Having  sent the  jurors  an  improper signal,  the            district  court   did  not   dispel  this   misimpression  by            collectively  asking the  jury  in open  court, after  it had            reached its  verdict, whether that verdict  had been coerced.            At  that  point,  the  dynamics  had  fundamentally  changed.            Jurors who may have  been hold-outs earlier had now  voted to            convict.   Asking  such a  juror to  admit before  his fellow            jurors  that he  had voted  against his  will was  asking too            much.  Moreover, the district court never informed the jurors                                            ____________________            11.  Providing a  modified Allen charge at  this juncture, on                                       _____            the other hand, would have informed the jurors that they need            not surrender  an honest conviction  for the mere  purpose of            returning a verdict and  at the same time encouraged  them to            try  to reach  a  verdict,  fully  aware  that  the  onus  of            reexamination is  not  on the  minority  alone and  that  the            burden of proof remains with the government.                                         -26-                                          26            that if  any of them  did admit to  being coerced,  the court            would  take their verdicts on Counts I and III, discharge the            jury,  and retry Count II  before another jury.   The unhappy            prospect  of being  sent back  to the  jury room  for further            deliberations may also have  prevented jurors from  admitting            coercion.  Because we cannot say that the verdict on Count II            was  not the product of coercion, we vacate the conviction on            Count II and remand for a new trial.                                                       III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      We  affirm Manning's  convictions and  sentences on                          ______            Counts I and III, vacate his conviction and sentence on Count                              ______            II, and remand Count II for a new trial.                    ______                                         -27-                                          27
