
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1754                                    UNITED STATES,                                      Appellee,                                          v.                                     BRIAN SMITH,                                Defendant, Appellant.                                 ___________________        No. 95-1857                                    UNITED STATES,                                      Appellee,                                          v.                                  GERALD YANOVITCH,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Charles  W. Rankin, with  whom Rankin  & Sultan were  on brief for            __________________             ________________        appellant Brian Smith.            Michael C. Bourbeau for appellant Gerald Yanovitch.            ___________________            George W. Vien, Assistant United States Attorney,             ______________        with  whom Donald K. Stern, United States Attorney, Carole S. Schwartz                   _______________                          __________________        and Michael D.  Ricciuti, Assistant United  States Attorneys, were  on            ____________________        brief for appellee.                                 ____________________                                  November 26, 1996                                 ____________________                      CAMPBELL, Senior Circuit Judge.  CAMPBELL,   Senior                                ____________________               ______            Circuit Judge.  A  United States Grand Jury for  the District            _____________            of Massachusetts returned  an indictment charging defendants-            appellants  Brian  Smith   ("Smith")  and  Gerald   Yanovitch            ("Yanovitch")  with being  felons-in-possession of  a firearm            (Count One)  and ammunition (Count  Two), in violation  of 18            U.S.C.     922(g) (1976  & Supp. 1996),  2 (1969).   After  a            five-day trial, a jury convicted the defendants-appellants on            both counts  of the  indictment.   Prior  to sentencing,  the            district court, citing double jeopardy concerns, required the            government to elect between  counts, and the government chose            to retain the conviction under Count Two.  The district court            sentenced  Smith to  the statutory maximum  of 120  months in            prison without  supervised release  or fine,  and with  a $50            assessment.   The court sentenced  Yanovitch to 78  months in            prison, with three  years supervised release,  no fine and  a            $50  assessment.   Both  defendants filed  timely notices  of            appeal.  We affirm.                                           I.                      At  approximately  8:00  to 8:30  p.m.  on  Friday,            December   2,   1994,  Mark   Duggan   was   in  Charlestown,            Massachusetts to pick up a friend, Jonellen Ortiz.  As Duggan            drove to the  parking lot  in the rear  of Ortiz's  apartment            building,  he passed Smith.   Duggan pulled his  car into the                                         -3-                                          3            parking  lot  and stopped.    Through his  rear  view mirror,            Duggan saw Smith approaching his car from behind.                        Smith and  Duggan had had a  prior confrontation in            Charlestown  approximately  two months  earlier  concerning a            woman,  Colleen King, who was  the mother of  Smith's son and            Duggan's former girlfriend.                        Duggan  got out  of the  car, exchanged  words with            Smith,  who was thirty to  forty feet away,  and then reached            back  into the  car  and retrieved  a  baseball bat.    Smith            reached  into his pants and pulled out a dark, small caliber,            semi-automatic  handgun and showed it to Duggan.  There was a            standoff, and Smith eventually left the area.                        After the encounter with Duggan, Smith and King met            King's   best  friend,   Melissa  Brown,   on  a   street  in            Charlestown.   Brown had  known Smith for  approximately five            years, and was  the godmother of Smith's and King's son.  The            three of them  walked to  a liquor  store on  Main Street  in            Charlestown, where  they purchased beer.  They, then, went to            King's apartment, located in  the same housing development in            which Ortiz lived.                        Later  in  the  evening, Yanovitch  and  his  date,            Danielle Scanlon, arrived at  King's apartment and joined the            others in drinking beer.   All of them left  King's apartment            and got into the  large, dark-colored, four-door Lincoln Town            Car in which  Yanovitch and Scanlon had arrived that evening.                                         -4-                                          4            With Yanovitch driving, they traveled to a bar named "Kelly's            Cork  and Bull" in South  Boston.  The  group arrived between            11:30  p.m. and midnight, and stayed there about one and one-            half or two hours.                        Near  closing  time,  Smith  and  Yanovitch  became            involved in  a conversation  with Robert Viens,  Jr., Brown's            former boyfriend.   Smith and  Viens began to  argue about  a            gun,  and the argument  spilled into the  street.  Yanovitch,            King and Brown, as well as Viens's friend, Walter Veneau, and            the latter's  girlfriend, Tammy Tetreault,  followed them out            of the bar.   Once outside, Yanovitch, King and  Brown walked            over to their Lincoln, which was parked nearby.                      Smith and Viens continued to argue outside the bar.            Smith said to  Viens that he wanted to speak  with him alone,            and the two of them walked down the street together away from            the bar.  Smith,  then, reached inside his jacket,  and Viens            responded by throwing punches at Smith.  The fight moved back            towards the Lincoln, as people tried to break it up.   Veneau            pulled his friend Viens  back from Smith as Smith  was pulled            into the center of the Lincoln's back seat,  with King on one            side of him and Scanlon on the other.                       Yanovitch,  who  was  still  outside  the  Lincoln,            exchanged words  with Viens,  and then partially  entered the            car  through the  driver's side  door.   From the  back seat,            Smith  handed a handgun to  Yanovitch.  Yanovitch  got out of                                         -5-                                          5            the car  with the gun,  proceeded to fire one  round into the            ground, and  then shot Viens.  Viens ran and staggered up the            street away from Yanovitch.   Yanovitch shot Viens again, and            Viens fell to the  ground.  From behind, Yanovitch  closed on            Viens,  pointed  the  gun  at  his  head,  and  fired  again.            Yanovitch,  then, ran  back  to the  Lincoln, got  behind the            wheel and sped away with his friends.                      After Yanovitch sped  away, Veneau went to  comfort            Viens,  who was lying  in the street.   The Boston Police and            paramedics  in  an ambulance  responded  to the  scene.   The            paramedics  found  Viens alive,  lying  on  his  back in  the            street.  Viens had two small-caliber entry wounds and a third            small-caliber exit wound.  One of the entry wounds was in his            left front chest, while the exit  wound was in the right side            of his chest.   Viens was uncooperative, refused to  give his            name, and even told  witnesses at the scene not  to cooperate            with  the  police.    The  paramedics  placed  Viens  in  the            ambulance and took him to Boston City Hospital.                      A  friend  drove  Veneau to  Boston  City Hospital,            where  he saw Viens's parents.  Although he initially refused            to cooperate with  the police, Veneau changed  his mind after            speaking with  Viens's father.    Veneau, then,  gave a  tape            recorded interview to Boston Police Sergeant  Detective James            Wyse.                                         -6-                                          6                      Without information from  the victim or  witnesses,            the police searched  the area of the shooting,  but initially            did not  find any ballistics  evidence.  After  speaking with            Veneau concerning the exact  location of the shooting, police            officers returned to the crime  scene and recovered two spent            .25  caliber shell  casings.   One of  the casings  was found            approximately fifteen  to twenty-five  feet from  where Viens            was  lying when  the police  and paramedics  found him.   The            other casing was recovered  an additional ten to twenty  feet            away from the first casing.                      Smith and Yanovitch were arrested on the basis of a            complaint.  On  January 24,  1995, a grand  jury returned  an            indictment charging Smith and Yanovitch with being felons-in-            possession  of a  firearm (Count  One) and  ammunition (Count            Two),  in  violation of  18 U.S.C.      922(g) (1976  & Supp.            1996), 2 (1969).   At trial,  Smith and Yanovitch  stipulated            that they were convicted felons at the time of the shooting.                      The   government   called   a  paramedic,   Michael            Sullivan, and  two police officers, Wyse  and Lieutenant Gary            French,  who had responded to the scene.  After speaking with            Veneau at Boston City Hospital,  French returned to the crime            scene and recovered  the two shell  casings.  The  government            also called  Alcohol,  Tobacco and  Firearms ("ATF")  Special            Agent, Allan  Offringa, who testified  on direct  examination            that the .25 caliber  shell casings were manufactured outside                                         -7-                                          7            Massachusetts,  and  that   the  only   .25  caliber   pistol            manufactured  in that  state  was manufactured  by a  company            named  Harrington and  Richardson  ("H &  R"), which  started            making the gun in 1909 and stopped doing so before  World War            II.   Boston  Police Ballistician,  Edward  Szalno, testified            that the marks found on the spent shell casings were not made            by an H & R pistol.                      The government  obtained compulsion/immunity orders            for  two of  the women  who were  in the  car with  Smith and            Yanovitch.  Although these  women, Brown and Scanlon, claimed            that they did  not see  the shooting, they  did confirm  that            they were out with  Smith, Yanovitch and King on  the evening            in question, and that Yanovitch got into the driver's seat of            the car shortly after they heard  gun shots.  Both women also            confirmed that Smith  was seated  in the middle  of the  back            seat  of the  car.   Duggan was  called as  a witness  by the            government.    He  recounted  his  confrontation  with  Smith            earlier  in the  evening in  question.  Veneau  and Tetreault            testified to having witnessed  the shooting.  They  said that            the man  in the middle  of the  back seat of  the car  handed            Yanovitch a gun, which the latter used to shoot Viens.                      After  the  trial  and  conviction   of  Smith  and            Yanovitch  on   both  counts  of  the   indictment,  and  the            government's election of Count Two, the court sentenced Smith            to  the  statutory maximum  of  120  months  in  prison,  and                                         -8-                                          8            Yanovitch  to  78  months  in  prison, with  three  years  of            supervised release.                                               II.                      On  appeal,   Smith  presents  a  host  of  issues,            claiming errors at trial and in sentencing.  As most of these            issues were  not  raised  in the  district  court,  they  are            reviewable  on  appeal  only  for  plain  error.    Yanovitch            challenges his  sentence and says that he adopts by reference            any additional issues raised  by Smith which could materially            affect his rights in this case.            A.   The Nondisclosure of Test Results                 _________________________________                      At trial, Ballistician Edward Szalno testified that            the  two shell  casings that  were recovered  from the  crime            scene were  fired from  a .25 caliber  semi-automatic weapon,            but that the weapon was not  a Harrington & Richardson ("H  &            R")  pistol.  Since H  & R is the only  company that has ever            manufactured a .25  caliber semi-automatic weapon  within the            state of Massachusetts, the  effect of this testimony  was to            indicate  that  the  gun  used  had  traveled  in  interstate            commerce.   Prior to testifying, Szalno had test-fired an H &            R  .25 caliber  semi-automatic pistol,  and had  compared the            shell  casings with  those found  at the  crime scene.   This            comparison confirmed his earlier conclusion that the  casings                                         -9-                                          9            recovered  from the crime scene were not  fired from an H & R            pistol.                      Smith's counsel says he  first became aware of this            test-firing  during  his cross-examination  of  Szalno.   He,            then, moved to  strike Szalno's testimony on  the ground that            the  government had  violated  its  discovery obligations  by            failing  to inform the defense  of the test.   Counsel argued            that this discovery violation affected  his cross-examination            and  prejudiced Smith's  defense.   The court ruled  that the            government  should have  provided  defense counsel  with  the            observed results  of the test-firing, even  though no written            report had  been generated.   The court refused,  however, to            strike Szalno's  testimony, noting  that defense  counsel had            not  sought a continuance to counter the evidence and had, in            effect,  created  the problem  at  hand  by asking  questions            without first determining the likely responses.                      The  provisions that  might arguably  have required            advance disclosure of the  test-firing results are Rule 116.1            of  the Local Rules of  the United States  District Court for            the District  of Massachusetts  and Federal Rule  of Criminal            Procedure 16(a)(1)(D).  The  former states, in relevant part,            "The government  shall disclose,  and allow the  defendant to            inspect,  copy  and  photograph,  all  written  materials  as            follows:  (3)  . . . all  scientific tests,  experiments  and            comparisons,  or copies  thereof, made  in connection  with a                                         -10-                                          10            particular case."   D. Mass.  R. 116.1(a)(3).   As the  Local            Rule is expressly limited to written materials, of which none            were generated here, it was not violated.                        The  other  proviso  upon  which  Smith  relies  is            Federal Rule  of Criminal  Procedure 16(a)(1)(D), which  does            not speak specifically of  written materials only.1  However,            the words "inspect and  copy or photograph" logically suggest            that  the  items to  be disclosed  be  tangible enough  to be            susceptible to inspection, copying or photographing.  Fed. R.            Crim. P. 16(a)(1)(D); see also Fed.  R. Crim. P. 16(a)(1)(A),                                  ________            (C).   Our circuit has expressly reserved decision on whether            Rule  16(a)(1)(D)  requires   the  disclosure  of  unrecorded            personal observations of tests and the like.  Compare  United                                                          _______  ______            States  v. Veilleux, 40 F.3d  9 (1st Cir.  1994), with United            ______     ________                               ____ ______            States  v. Tejada,  886  F.2d 483  (1st  Cir. 1989).    Other            ______     ______            circuits, however, have held that such unrecorded information            is not covered by  Rule 16(a)(1)(D).  United States  v. Shue,                                                  _____________     ____            766  F.2d 1122,  1135  (7th Cir.  1985)  (the Rule  does  not            require  disclosure of  expert's oral  statements  made after            comparing photographs);  United States  v. Johnson,  713 F.2d                                     _____________     _______            654,  659 (11th Cir. 1983)  (where no report  was prepared by                                            ____________________            1.  The relevant language of the Rule provides, "Upon request            of a defendant  the government shall permit  the defendant to            inspect  and  copy  or  photograph  any  results  or  reports            . . . of scientific  tests or experiments, or  copies therof,            which are within  the possession, custody, or control  of the            government . . . ."                                         -11-                                          11            expert, no discovery obligation was incurred under the Rule).            See  also United States v.  Peters, 937 F.2d  1422, 1425 (9th            _________ _____________     ______            Cir.  1991) (similar  language  in Rule  16(b)(1)(B), "cannot            pertain to oral information").  We think the above  decisions            of the  Seventh, Eleventh  and Ninth Circuits  are consistent            with the  plain language of  Rule 16(a)(1)(D), and  hold that            where  the test result in  question consisted of the expert's            unrecorded comparison of  the test-firing casings with  those            at  the crime  scene, Rule  16(a)(1)(D) did not  obligate the            government to  produce in advance  the expert's  conclusions.            This being  so, we find  no error  in the court's  refusal to            strike Szalno's testimony.2                      While this ends the matter, we also agree with  the            district court  that there was  a total absence  of prejudice            from the nonproduction of the expert's observations following            the  test-firing.   Smith  argues  that, had  he  known about            Szalno's test-firing, he would not have cross-examined him in            the  manner he did, to his detriment.  However, before Szalno            took  the  stand,  ATF  Special Agent  Offringa  had  already            testified that he had test-fired an H & R pistol, and that he            had  given  the  casings to  Szalno  for  a  comparison.   In            addition, Szalno himself testified on direct examination that                                            ____________________            2.  The arguments on this appeal  do not involve the separate            requirements  of Rule 16(a)(1)(E)  on Expert Witnesses, which            requires  the  government,  on the  defendant's  request,  to            disclose  a summary of  the expert's opinions,  the bases and            the reasons therefor.                                         -12-                                          12            he  had examined two cartridge cases that had been fired from            an  H  & R  .25 caliber  semi-automatic  pistol and  had made            reference  to the  FBI's  General Rifle  and  Characteristics            book.   Smith  was,  therefore,  on  notice prior  to  cross-            examination  that Szalno  had compared  the casings  from the            crime scene with  others that were test-fired  from an H &  R            pistol.  The test-firing  of an H  & R pistol was,  moreover,            relevant  only  to  the  interstate element  of  the  firearm            convictions,  which the government  later elected to dismiss.            The test-firing was irrelevant to the ammunition charges upon            which  both  Smith and  Yanovitch  were  sentenced, it  being            undisputed the casings had been manufactured in Arkansas.  As            only the  latter convictions  stand, the claimed  error would            have been harmless.            B.   The   Admissibility   of  Evidence   Concerning  Smith's                 ________________________________________________________                 Possession of a Firearm Earlier on the Night in Question                 ________________________________________________________                      Duggan testified  that he had a  confrontation with            Smith earlier  on the  evening  in question,  in which  Smith            displayed a small,  semi-automatic handgun.   Smith  contends            that such testimony was admitted in violation of Federal Rule            of Evidence 404(b) because it was evidence of a prior bad act            offered solely to prove Smith's propensity to use guns.3  For                                            ____________________            3.   Rule 404(b) provides: "Evidence of other crimes, wrongs,            or acts is not admissible to  prove the character of a person            in order to  show action  in conformity therewith.   It  may,            however,  be admissible for other purposes,  such as proof of            motive,  opportunity,  intent, preparation,  plan, knowledge,            identity, or  absence of  mistake or accident,  provided that                                         -13-                                          13            evidence  of this sort to be  admissible, it must be shown to            bear some special relevance to an aspect of the case at hand,            other than  merely to  the defendant's  propensity to  do bad            things.  See United  States v. Cortijo-Diaz, 875 F.2d  13, 15                     ___ ______________    ____________            (1st Cir.  1989).  Here,  Smith argues, the  testimony lacked            such special relevance and was used by the  government simply            as propensity evidence.                      Smith did not, however, object at trial to Duggan's            testimony in this regard.4  Our review is, therefore, limited            to plain error.   Under  that standard, the  burden falls  on            appellants to show that there is  an error, that the error is            clear  or obvious, and that the error affected the outcome of            the proceedings below.  United States v. Olano, 507 U.S. 725,                                    _____________    _____            732-34 (1993).   Because the challenged  testimony was proper            evidence  of the  crimes  charged, the  court did  not commit            error, much less plain error.                      Far from merely relating to "other crimes,  wrongs,            or acts,"   Fed. R.  Evid. 404(b), Duggan's  testimony helped                                            ____________________            upon request by  the accused, the  prosecution in a  criminal            case shall provide reasonable notice in advance of  trial, or            during trial  if the  court excuses pretrial  notice on  good            cause  shown, of the general  nature of any  such evidence it            intends to introduce at trial."  Fed. R. Evid. 404(b).            4.    Smith   had  objected   earlier   to  questions   about            conversations  Duggan  might have  had  with  Smith regarding            King,  complaining that  such conversations  were irrelevant.            At sidebar,  the government  explained the relevance  of such            testimony.   Smith did not object thereafter.  Neither did he            object to  that portion of the  government's closing argument            based upon Duggan's testimony.                                         -14-                                          14            establish  that  Smith knowingly  possessed a  firearm (Count            One)  and ammunition (Count Two), as required under 18 U.S.C.              922(g) (1976 & Supp. 1996).  The decisions in United States                                                            _____________            v.  Diaz-Martinez, 71  F.3d 946 (1st  Cir. 1995),  and United                _____________                                      ______            States v. Klein, 13  F.3d 1182 (8th Cir.), cert.  denied, 114            ______    _____                            _____________            S.  Ct. 2722 (1994), are instructive.   In Diaz-Martinez, the                                                       _____________            defendant, who  was charged with possession  of firearms with            obliterated serial numbers in violation of 18 U.S.C.   922(k)            (1976 & Supp. 1996),  was involved in a shootout  immediately            before  his  arrest,  at  which  time  police  recovered  the            firearms.     We  dismissed  defendant's  argument  that  the            government improperly referred to the shootout in its closing            argument   stating,   "[B]ecause   . . . the   shootout   was            integrally related  to the evidence  linking the guns  to the            defendant (the possession  charges), that evidence could  not            have  been barred by Rule 404(b)."  Diaz-Martinez, 71 F.3d at                                                _____________            951 n.4.  The  Eighth Circuit reached the same  conclusion in            Klein on comparable facts.  Klein, 13 F.3d at 1184.            _____                       _____                      Even  assuming that  the possession  charge related            only  to  the weapon  with  which  Viens  was shot,  Duggan's            testimony that Smith  was in possession of  a similar handgun            earlier that evening tended to establish that Smith possessed            the  same handgun  a  few hours  later,  at the  time of  the            shooting.  The district  court did not commit plain  error in            admitting Duggan's testimony.                                         -15-                                          15            C.   The   District   Court's  Control   of   Smith's  Cross-                 ________________________________________________________                 Examination                 ___________                      Smith  argues on  appeal  that  the district  court            erroneously  restricted  his  cross-examination   of  Duggan.            Duggan  first informed  police  of his  encounter with  Smith            about  two weeks before trial,  after he had  been taken into            custody  on unrelated charges.  Smith contends that he wanted            to establish  on cross-examination that,  at the time  of his            testimony,  Duggan  had  pending  against  him  a  number  of            criminal  charges.    This  line of  questioning  would  have            enabled Smith to argue that Duggan had slanted  his testimony            to  gain  better  treatment   from  the  government.    Smith            complains  that  the  district  court  severely  limited  his            ability in this regard.                        A  district  court's discretion  to  control cross-            examination,  while  broad, is  not  unlimited.   See  United                                                              ___  ______            States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996).  However,            ______    ______            we find  little indication  that the court  restricted cross-            examination in  the asserted  manner.  Moreover,  counsel did            not at  the time complain to  the court of being  so limited,            hence we review only for plain error, Olano, 507 U.S. at 733-                                                  _____            34, a standard clearly not met on this record.                        During  the  initial  stages of  cross-examination,            when counsel asked  Duggan if  he had  cases pending  against            him, the district court sustained the government's objection.            Defense counsel then asked  whether the government had helped                                         -16-                                          16            him with his pending cases.  Duggan answered in the negative.            Later,  counsel asked whether Duggan was aware that Ortiz had            filed a complaint against him for threatening her with bodily            harm.    The government  objected,  and  a sidebar  followed.            During the sidebar, the district court stated, "Perhaps I was            precipitant."   It allowed  counsel to pursue  the challenged            line  of questioning.  Duggan then conceded that he was aware            of  Ortiz's complaint at  the time  he contacted  the police.            After counsel  finished questioning Duggan  regarding Ortiz's            complaint, he did not proceed with similar questions relative            to other pending matters nor ask the court to allow him to do            so nor  indicate that he  felt unduly  limited.   We find  no            merit in Smith's argument on appeal that the court improperly            restricted his cross-examination of Duggan.            D.   Duggan's Prison Reference and its Impact on the Trial                 _____________________________________________________                      Duggan mentioned during his direct examination that            King's "ex-boyfriend" had recently been released from prison,            an  obvious  reference,  Smith  says, to  himself.    Smith's            counsel  promptly  objected,  and   the  court  ordered   the            challenged testimony  struck.5   Smith's counsel did  not ask                                            ____________________            5.   Duggan made the  disputed reference during the following            exchange:                      Q:   And  how did  your  relationship  with  [King]                           develop?                       A:   Went on  through the  summer, the spring,  and                           the summer  of '94  and stopped in  October of                           '94.                      Q:   And why did it stop on October of '94?                      A:   Her reason was, ah, that it was --                                         -17-                                          17            for  a mistrial at the time,  but, on appeal, now argues that            the court erred in not declaring a mistrial sua sponte.                                                          __________                      Absent  a  request  for  a  mistrial,  this court's            review  of the  court's failure  to order  a mistrial  is for            plain error only.  Olano, 507  U.S. at 733-34.  Smith  argues                               _____            that,  since it  was  clear  to  the  jury  that  Duggan  was            referring to  Smith as  having been  released from jail,  the            response  was so  prejudicial as  to necessitate  a mistrial.            The district court, however, took some curative measures.  It            sustained Smith's  objection and struck Duggan's  remark.  As            counsel asked for no more at  the time, the trial court could            reasonably assume  that Smith was  satisfied.  The  degree of            prejudice was neither  so obvious  nor so clear  that only  a            mistrial would have satisfied the needs of justice.                       In United States v. Cresta, 825 F.2d 538  (1st Cir.                         _____________    ______            1987),  this  court   laid  out  the  factors  that  must  be                                            ____________________                                Defense Counsel: Objection.                                The Court:  Sustained as to  anything she                                may have said.                      Q:   Without saying what she said, why did you stop                           seeing her in October?                      A:   The   relationship   ended  because   her  ex-                           ______________________________________________                           boyfriend got out of jail.                           _________________________                                Defense Counsel:  Objection.                                The  Court:   The objection  is sustained                                and  the  answer  is  stricken.    That's                                something someone told you, right?                                The witness:  Yes, it would be, I guess.                                The Court:  Yes, its -- someone told you.                                The witness can only testify to what they                                know,  not what  people  told them.   The                                answer is stricken; disregard it.                                         -18-                                          18            considered in evaluating  an otherwise improper reference  to            an  accused's prior  imprisonment:   whether  the remark  was            isolated, whether  it was deliberate  or accidental,  whether            the  trial court's  instruction was sufficient  to counteract            any prejudice  that might  have flowed  from the  remark, and            whether any  remaining prejudice could affect  the outcome of            the case.   Cresta,  825  F.2d at  550.   The  remark in  the                        ______            present  case, as the  government points  out, was  a single,            isolated  and accidental  reference  by a  witness trying  to            answer  a  question  designed  to  address  defense counsel's            hearsay objection.  Smith himself had already stipulated that            he  was a convicted felon.  The disputed remark added little,            therefore, to what the jury could already surmise.  We do not            find plain error in  the court's failure to order  a mistrial            sua sponte.            __________            E.   The Questioning of Defense Witness Ortiz                 ________________________________________                       On cross-examination, the government  was allowed,            over Smith's unexplicated  objection, to ask  defense witness            Ortiz whether she had  acted as a confidential  informant for            the Drug  Enforcement Administration ("DEA") and  whether, as            such,  she had helped the DEA obtain a search warrant for the            apartment of her friend, Colleen King.  Smith now argues that            the  district  court  should  have  excluded these  questions            because they were irrelevant and because    by  implying that            Smith's girlfriend was the subject of a drug investigation                                            -19-                                          19            they  unduly prejudiced him and his case.  Smith also asserts            that  the  district  court   erred  in  preventing  him  from            establishing  that  the  DEA's  subsequent  search  of King's            apartment yielded  no evidence  of illegal drugs.   Eliciting            such  evidence was  relevant,  Smith says,  to undermine  any            concerns about  the credibility of  the witness and  to rebut            the prejudicial characterization of Smith and his girlfriend.            We do not find plain error.                      One problem  with  these arguments  is  that  Smith            never  advised  the  district court  of  the  reasons he  now            advances  on appeal  for excluding  the government's  line of            inquiry.   Federal Rule of Evidence 103 states that error may            not  be  grounded  upon   an  evidentiary  ruling  "unless  a            substantial right  of the  party is affected,  and . . . [i]n            case the ruling is one admitting evidence, a timely objection                                                         ______            or  motion to strike appears  of record, stating the specific                                                                 ________            ground  of  objection  . . . ."    Fed.  R.  Evid.  103(a)(1)            (emphasis added).   Counsel had been informed in advance that            the government  planned to cross-examine Ortiz concerning her            DEA connections, and while he objected, he did not argue that            the  information was  irrelevant nor  did he  claim prejudice            under  Rule 403.  And when the district court limited Smith's            redirect examination of Ortiz, Smith  made no objection.  Our            review,  therefore, is only for plain error.  Olano, 507 U.S.                                                          _____            at 733-34.                                         -20-                                          20                      The government contends that  its cross-examination            was designed to  impeach Ortiz,  and not to  smear Smith  and            King.6  Ortiz denied that  she had ever furnished information            to the DEA, the government did not implicate Smith during its            cross-examination of Ortiz, and the court instructed the jury            that counsel's  questions did not constitute  evidence.  Even            assuming arguendo, it  was error to  allow the government  to            cross-examine Ortiz as it did,  we conclude the error  caused            slight, if any, damage  to Smith.  The limitation  of Smith's            redirect  was likewise far short of plain error.  The subject            matter was  of border-line  relevance, hence well  within the            discretion of the court to control, see Fed. R. Evid. 401.                                                ___            F.   The Government's Closing Argument                 _________________________________                      Smith claims  that  the prosecution  misstated  the            evidence on four separate  occasions in its closing argument.            These alleged misstatements, according  to Smith, went to the            heart of the case,  were not corrected by the  district court            and, therefore,  warrant the reversal of his conviction.  The            challenged statements, and this court's reasons for rejecting            Smith's present claims, are set forth below.                                            ____________________            6.    The government  says it sought  to establish  biases or            motives  to  lie  on the  part  of  Ortiz.    To do  so,  the            government claimed that Ortiz  and King had been in  the drug            business together, that information  provided by Ortiz to the            DEA  contradicted her testimony at trial,  and that Ortiz was            capable  of  duplicitousness  (and,  thus, of  lying  on  the            stand).                                         -21-                                          21                      Smith concedes that he  did not object at  trial to            the  challenged  statements.    Consequently,  we review  his            present claims  under the plain  error standard.   Olano, 507                                                               _____            U.S.  at  733-34.   In  so doing,  we  consider  a number  of            factors, "including the frequency  and deliberateness of  the            prosecutor's comments, the strength  and clarity of the trial            judge's instructions,  and the  strength of  the government's            case  against  the defendant."    United  States v.  Morales-                                              ______________     ________            Cartagena, 987 F.2d 849, 854 (1st Cir. 1993); see also United            _________                                     ________ ______            States v. Tajeddini, 996 F.2d 1278, 1282 (1st Cir. 1993).              ______    _________                      The  first  disputed  statement,  that  Mark Duggan            testified that he saw Smith with a .22 or  .25 caliber pistol                                               __________________________            on  the night  in question, is  the only  characterization of            evidence that can be termed a  misstatement.  We do not find,            however, that the prosecutor's description strayed far enough            from Duggan's actual testimony, "a small caliber handgun," to            amount to plain error.  However described,  the small caliber            handgun mentioned in  Duggan's testimony was  consistent with            the .25 caliber  casings recovered after  the shooting.   The            prosecutor's mistake was not so serious as to imply bad faith            or deliberate  prevarication.   Also, the case  against Smith            was strong, and the court properly instructed the jury on the            effect of the lawyer's statements.  The misstatement, such as            it  was,  fell well  below the  plain  error threshold.   See                                                                      ___            Morales-Cartagena, 987 F.2d at 854-55.            _________________                                         -22-                                          22                      As for the three remaining  challenged remarks,7 at            least two were amply  supported by the record.   Statement #2            rested on  Veneau's testimony that  the government  protected            him and helped him move out of South Boston, and  that he had            not gone to the police for fear of the defendants.  Statement            #4 was a fair  inference from the testimony of  Boston Police            Lieutenant  French.  Statement #3  is more problematic but in            no way amounts to  plain error.  The government argues in its            brief that the prosecutor referred to the jury as having "sat                                                  ________            up there" and seen the witness's, Tetreault's, fear.  If this            is what the prosecutor  said, the remark was unexceptionable,            since  the jury had observed Tetreault on the stand and could            determine whether or not she exhibited fear.  The transcript,            however,  indicates the  prosecutor as  actually having  said            that "he sat up there" and  saw fear in Tetreault's face.  If            the  "he"  referred  to  Veneau,  the  comment  was  arguably            garbled,  since by the time Veneau testified at the trial, he            had  already retracted  earlier misstatements to  police that            Tetreault had been  absent.  But,  even accepting the  latter                                            ____________________            7.  Statement #2:   The government stated  that Walter Veneau            could not go back to South Boston after he testified.                 Statement #3:  The  government stated that Walter Veneau            did not tell the  police his girlfriend was  at the scene  of            the shooting  because "he sat up  there and saw the  fear" on            her face.                 Statement  #4:   The government  stated that  the police            found the shells  where Walter Veneau told them  the shooting            had taken place.                                         -23-                                          23            version, the  unobjected-to remark was harmless  and fell far            short of constituting plain error.            G.   The Meaning of "Ammunition"                 ___________________________                      Smith contends on  appeal that the  district court,            through certain  unobjected-to instructions given to the jury            while  the  trial  was  in process,  erroneously  directed  a            verdict  in  the  government's   favor  on  the  elements  of            ammunition and interstate commerce.   According to Smith, the            district court wrongly told  the jury that the casings  which            were received into evidence were ammunition, and had traveled            in interstate commerce.8  Such instructions, according to the            defense, had the effect of directing the jury to find against            Smith on two essential  elements of the offense.   See United                                                               ___ ______            States v.  Argentine, 814  F.2d 783,  788-89 (1st  Cir. 1987)            ______     _________            (quoting United  States v. Natale,  526 F.2d  1160, 1167  (2d                     ______________    ______            Cir. 1975), cert. denied, 425 U.S. 950 (1976)).  Smith, thus,                        ____________            concludes  that the  district  court committed  plain  error,            requiring the reversal of his conviction.                      The district court made  the challenged remarks  in            the  course  of  certain   mid-trial  comments  to  the  jury                                            ____________________            8.   Smith  challenges the  following statements made  by the            court in the course of  remarks to the jury during  the trial            relative to evidence on the cartridge casings:  "Despite what            may  have been raised in  the opening statements  to you, the            cartridge  case, standing alone,  is ammunition under federal            law.  So the cartridge case originally was made out of state,            found  its way  into Massachusetts.   Whether  or not  it was            reloaded, it still moved in interstate commerce."                                           -24-                                          24            intended,  among  other   things,  to   correct  an   earlier            misstatement  by   Yanovitch's   counsel  relative   to   the            definition of  "ammunition."   Counsel had stated  that shell            casings  were not  ammunition, an  assertion contrary  to the            definition  set forth in 18 U.S.C.   921(17)(A) (1996):  "The            term  'ammunition'   means  ammunition  or   cartridge  cases            . . . ."     Before  correcting  counsel,  the   trial  court            indicated to the jury  that it was instructing them as to the            law,  not   as  to   the  evidence.      If  counsel   wished            clarification, he should have  asked for it at the  time.  In            its  final charge  to the  jury,  the district  court clearly            informed the jury of the  government's burden to prove beyond            a reasonable  doubt defendants' possession of  ammunition and            of  the movement  of  the ammunition  in  commerce, and  gave            accurate, extensive  and clear instructions on  each of these            points.  We do not find plain error.9                 H.   The Meaning of "In or Affecting Commerce"                 _________________________________________                      Smith challenges the  accuracy of the  court's jury            instruction on the  meaning of  the phrase  "in or  affecting            commerce."   As  he did  not object  to the  instruction, our            review is for plain  error only.  Olano, 507  U.S. at 733-34.                                              _____            After considering the  instruction, and  the prevailing  case                                            ____________________            9.  As noted previously, there was uncontested  evidence that            the  cartridge  casings  found  at  the  scene  were made  in            Arkansas,  permitting the  inference  that they  had traveled            interstate.                                         -25-                                          25            law, we conclude that  the court did not commit  error, plain            or otherwise.10                       As part  of its case,  the government had  to prove            that  possession  of  the  ammunition was  "in  or  affecting            commerce."    18 U.S.C.   922(g)(1) (1976 & Supp. 1976).  The            Supreme Court in Scarborough v. United States, 431  U.S. 563,                             ___________    _____________            575  (1977), held  that evidence  showing that  a  weapon had            crossed  state lines  is legally  sufficient to  satisfy this            element  of the  statute.   Smith,  while  not disputing  the            above, contends that it  should have been left solely  to the            jury  to decide  whether the  ammunition's crossing  of state            lines could  establish that  possession was "in  or affecting            commerce."                      This argument  runs counter  to the  principle that            the court,  not the jury,  is responsible  for declaring  the            law.    Here,  the   court's  instruction  finds  support  in                                            ____________________            10.    The court  instructed the  jury as  follows:   "So the            government  has to prove  beyond a reasonable  doubt that the            firearm,  taking  the  firearm charge,  and  the  ammunition,            taking the ammunition charge, was  in commerce.  That doesn't            mean  that  they have  to prove  Mr.  Yanovitch or  Mr. Smith            carried  the items across a  state line.   But the government            does have to  prove beyond  a reasonable doubt  that at  some            time  after the  firearm or  ammunition was  manufactured, up            till the  time when  the person you're  considering possessed            it, if you find that one or both of them did possess it, that            the  item,  the firearm,  or  ammunition,  or  both, were  in            commerce, which means it went across a state line . . . ."                                         -26-                                          26            Scarborough    and   in   circuit   precedents   spawned   by            ___________            Scarborough.11  The court properly instructed the jury on the            ___________            meaning of the phrase "in or affecting commerce."                      Smith  also  claims  that  the  court  should  have            required  the   jury  to  find  a   "substantial"  effect  on            interstate commerce,  in light of the  Supreme Court's recent            decision  in United States v. Lopez, 115 S. Ct. 1624, 1629-30                         _____________    _____            (1995).   In Lopez, the Court struck down the Gun-Free School                         _____            Zones Act,  18 U.S.C.   922(q) (Supp. 1996), which prohibited            a person from possessing  a gun while in a  "school zone," on            the  grounds that  it  exceeded Congress's  powers under  the            Commerce  Clause.   Lopez,  115 S.  Ct.  at 1630-31.    Smith                                _____            alleges that the Court's opinion in the Lopez case undermines                                                    _____            the proposition, stated in  Scarborough and its progeny, that                                        ___________            Congress intended  nothing more  than a minimal  contact with            interstate commerce.  Consequently, Smith concludes  that the            district court committed error when it failed to instruct the            jury that the government  had the burden of proving  that the            ammunition   at   issue  substantially   affected  interstate            commerce.                                            ____________________            11.   United States v. Gillies, 851 F.2d 492, 494 (1st Cir.),                  _____________    _______            cert.  denied, 488 U.S. 857 (1988); see also United States v.            _____________                       ________ _____________            Carter,  981 F.2d  645, 648 (2d Cir. 1992)  (instruction that            ______            "it  is sufficient  that the  firearm allegedly  possessed or            received by defendant had  at some point previously travelled            across a state line" upheld in Section 922(g)(1) case), cert.                                                                    _____            denied, 507 U.S. 1023 (1993).              ______                                         -27-                                          27                      Smith's reliance on Lopez is misplaced.  Unlike the                                          _____            statute  at issue in  Lopez, Section 922(g)(1)  (1976 & Supp.                                  _____            1996)  contains  a   specific  jurisdictional  element  which            ensures,  through  case-by-case  inquiry,  that  the  firearm            possession in question affects  interstate commerce.   Where,            as  here,   the  jurisdictional   element  is   present,  the            government need  only prove  the minimal nexus  to interstate            commerce identified in  Scarborough.   See Diaz-Martinez,  71                                    ___________    ___ _____________            F.3d at 953.  Smith's argument is without merit.            I.   The Sufficiency of the Government's Evidence                 ____________________________________________                      Smith  argues   that   his  conviction   rests   on            insufficient  evidence.   In  reviewing this  claim, we  must            determine  whether,  after  viewing  the  evidence,  and  all            reasonable  inferences drawn  therefrom,  in  the light  most            favorable  to  the government's  case, a  rational factfinder            could find,  beyond a reasonable doubt,  that the prosecution            has  proved the essential  elements of  the offense.   United                                                                   ______            States v. O'Brien,  14 F.3d 703, 706 (1st Cir.  1994).  In so            ______    _______            doing,  this court defers to  the jury as  to all credibility            judgments, and need conclude only that the evidence, taken in            its  entirety,  supports  a  judgment  of  conviction.    Id.                                                                      ___            Because the evidence  in this case  was more than  sufficient            under this standard, Smith's claims are without merit.                      Smith argues that there was no evidence  indicating            that he possessed a handgun on the evening in question, hence                                         -28-                                          28            no  proof that he possessed ammunition as well.  Smith points            to the fact  that, while Veneau and Tetreault  both testified            that the man  in the back seat handed an  object to Yanovitch            and that the latter proceeded to shoot Viens, they did not go            so far as  to state that Smith passed a firearm to Yanovitch.                      However,  the  testimony of  Veneau  and Tetreault,            together  with the  reasonable inferences  that can  be drawn            therefrom and  from the other evidence, is ample to establish            Smith's involvement.   Veneau said  that he  never saw  Brian            Smith with a gun, but that was because he did not know anyone            named  Brian Smith.  Veneau's  assertion that the  man in the            middle  passed what Veneau believed to be a gun to Yanovitch,            when  coupled with  evidence that  Smith was  the man  in the            middle, supports the  conviction.   Tetreault testified  that            she did not recognize the object while it was being passed to            Yanovitch, but noted  that she  saw that  it was  a gun  when            Yanovitch  got out of  the car with  it.  This  testimony, in            conjunction with  all the  other evidence at  hand, including            the subsequent  shooting and  Duggan's testimony that  he had            seen Smith with a handgun  earlier, was adequate to establish            Smith's guilt beyond a reasonable doubt.            J.   Four-Level  Increase  in  Smith's  Guideline  Sentencing                 ________________________________________________________                 Range                  ______                      On  appeal, Smith  challenges the  factual findings            that served as the  foundation for the four-level enhancement                                         -29-                                          29            of  his Guideline  Sentencing Range  ("GSR").   Since Smith's            counsel properly objected to these findings at the sentencing            hearing,  this  court's review  is  limited  to clear  error.            United  States v. Powell, 50 F.3d 94, 102-03 (1st Cir. 1995).            ______________    ______            Under  the  circumstances, "we  ask  only  whether the  court            clearly  erred  in finding  that  the  government proved  the            disputed  fact by a preponderance  of the evidence."   Id. at                                                                   ___            103.   We hold that the factual findings were amply supported            on the record and that  the court did not commit clear  error            in assessing a four-level increase to Smith's GSR.                      Smith alleges that the district court clearly erred            when  it increased  his GSR  based upon  its finding  that he            transferred  the  firearm  to Yanovitch  in  connection  with            another felony offense.  United States Sentencing Commission,            Guidelines Manual,   2K2.1(b)(5) (Nov. 1995).12  Smith claims            _________________            that  the  evidence  presented  at  trial  was  insufficient,            especially as there was  an absence of proof that  Smith knew            that Yanovitch intended to use the gun to shoot Viens.                        The evidence  at trial was sufficient  to show that            Smith  and Viens became involved in a dispute about a firearm            at  a Boston  bar; that  the two men  left the  bar together;                                            ____________________            12.    U.S.S.G.    2K2.1(b)(5) provides:   "If  the defendant            used  or possessed  any firearm  or ammunition  in connection            with another felony offense;  or possessed or transferred any            firearm or  ammunition with  knowledge, intent, or  reason to            believe  that it  would be  used  in connection  with another            felony offense, increase by 4 levels . . . ."                                         -30-                                          30            that,  when Smith  reached inside  his jacket,  Viens punched            him; and that Smith was pulled into the back seat of the car,            from where he  handed a  gun to Yanovitch,  who proceeded  to            shoot Viens.  From  this, it was reasonable for  the district            court  to infer  that  Smith gave  his  handgun to  Yanovitch            intending and expecting the latter to use it against Viens.13            As this  was a reasonable and  permissible interpretation, it            justified the four-level enhancement of Smith's GSR.            K.   The Attachment of the Sentencing Hearing  Transcripts to                 ________________________________________________________                 Smith's Presentence Report                 __________________________                      At the sentencing hearing, Smith asked the district            court  to order  deleted from  the PSR  reference  to certain            state convictions.  These  convictions had been vacated prior            to the hearing, and,  as a result, Smith  no longer could  be            sentenced  as  an  armed career  criminal,  see  18 U.S.C.                                                           ___            924(e)(1) (Supp. 1996), although  he could still be sentenced            as a felon-in-possession.   The district court  stated on the            record  during the  sentencing  hearing  that the  challenged            convictions  had been  set aside  and ordered  the transcript            containing  its remarks  to  be attached  to  the PSR  as  an            indication  that  these  convictions  were  no  longer valid.                                            ____________________            13.    The district court  held as follows:   "I rule  on the            totality  of  the trial  record  . . . that  the evidence  is            sufficient to  warrant a finding  that when Mr.  Smith passed            the weapon to  Mr. Yanovitch,  he well knew  and he  intended            that it be used to assault Mr. Viennes [sic].   Not any self-            defense, but in furtherance of the altercation.  I find  by a            fair preponderance  of the  evidence that that  was precisely            what was in Mr. Smith's mind, and I add four levels . . . ."                                          -31-                                          31            Deeming  attachment  of  the  transcript to  be  an  adequate            corrective, the court refused to direct the probation officer            to revise the PSR itself.                      Smith did  not object  to the court's  procedure at            the  time, but on appeal complains that the Bureau of Prisons            uses  these PSRs to allocate the  prison population among its            institutions and programs.   According to Smith, the Bureau's            personnel  is not likely  to pay attention  to the sentencing            hearing transcript.   Consequently, Smith argues  that he has            been unduly prejudiced  by the  district court's  order.   He            asks us to order proper corrections to be made to his PSR.                      Federal   Rule   of  Criminal   Procedure  32(c)(1)            requires a  sentencing court to address  each relevant matter            in the PSR which is controverted by the parties.14  The court            must  make either a finding  or a determination  that none is            necessary.   Not  intended as  an "onerous"  requirement, the            sentencing court's determinations "can be simply entered onto            a  form  which is  then appended  to  the report."   Advisory            Committee  Notes  to  Fed.   R.  Crim.  P.  32(c)(3)(D)  (the            predecessor of Fed. R. Crim. P. 32(c)(1)), 1983 Amendments.                                            ____________________            14.   The relevant text of Rule 32(c)(1) is as follows:  "For            each  matter  controverted,  the  court must  make  either  a            finding on the allegation or a determination that no  finding            is  necessary because  the  controverted matter  will not  be            taken into account  in, or  will not affect,  sentencing.   A            written record  of these findings and  determinations must be            appended to any copy of the presentence report made available            to the Bureau of Prisons."  Fed. R. Crim. P. 32(c)(1).                                         -32-                                          32                      In United  States v.  Bruckman, 874 F.2d  57, 63-64                         ______________     ________            (1st Cir. 1989), this court noted that the purpose behind the            Rule's writing requirement is  to protect the defendant's due            process rights  and to  provide  the reviewing  court with  a            clear record of the  disposition below.  Smith does  not here            complain that  the district  court mishandled or  misread the            vacated convictions so  as to sentence him improperly in this            case.  Rather, he fears that appending the transcript, rather            than physically revising the  PSR, is an insufficient way  to            alert future prison  authorities to  the true  status of  the            prior convictions.  Whether  or not this is a  realistic fear            we  cannot say.  Smith did  not raise this concern before the            district  judge,  who  was  best  situated  to  pass  on  it.            Precedent  indicates   that  the   appending  of   a  hearing            transcript  will comply with the Rule.15  If, in a particular            case,  there are  practical reasons  to do  more, we  have no            doubt  that the district court, if asked, would look into the            matter, with the  help of the probation officer.   As we say,            Smith did not raise  the issue below; absent his  having done            so, we can find no  error cognizable on appeal.  We  add that            it  is still not too late for Smith's concerns to be attended                                            ____________________            15.  See  Bruckman, 874 F.2d at 65; see also United States v.                 ___  ________                  ________ _____________            Santamaria, 788 F.2d 824, 829  (1st Cir. 1986) (citing United            __________                                             ______            States  v.  Castillo-Roman, 774  F.2d  1280,  1285 (5th  Cir.            ______      ______________            1985), for  the proposition that appending  the transcript of            the   sentencing   court's   determinations   satisfied   the            requirements of the Rule).                                         -33-                                          33            to  administratively     assuming  they have  any legitimacy,            which we cannot  ascertain from  the record before  us     by            simply appending a suitable notation  to the PSR updating the            status  of the prior convictions.  Whether this or some other            measure  is necessary  we leave  entirely to  the appropriate            authorities.            L.   Yanovitch's Sentence                 ____________________                      Yanovitch  challenges the factual  findings made by            the  district court as  a basis for his  sentence.  We review            his  claims for clear error.  Powell,  50 F.3d at 102-03.  We                                          ______            are  satisfied  that  the  record below  amply  supports  the            sentencing  court's  factual  findings and  that  Yanovitch's            allegations are baseless.                      Yanovitch contends  that the evidence at  trial was            insufficient to establish that he attempted to shoot Viens in            the  head,  and that  he  had the  intent  to kill  him.   If            anything,   Yanovitch   argues,   the   evidence   at   trial            demonstrated that he acted in the heat of passion and in  the            absence  of  malice  aforethought; there  was  no indication,            according  to Yanovitch, that  he had the  necessary state of            mind for attempted murder.   Nevertheless, the district court            found  that Yanovitch's  conduct conformed  to the  charge of            assault with intent to murder,  and, based upon that finding,            sentenced  him under U.S.S.G.   2A2.1.   On appeal, Yanovitch            argues  that  a reasonable  person  would  conclude that  the                                         -34-                                          34            incident in question was  an aggravated assault or,  at most,            an  assault with an attempt to commit manslaughter, either of            which would require application of U.S.S.G.   2A2.2.16                      Yanovitch's  argument  merits little  discussion in            light of the evidence  at trial which was also  summarized in            his PSR,  and the tape  recording of Veneau's  interview with            Boston  Police.17    This  evidence  obviously  supports  the            sentencing  court's determination  that Yanovitch  shot Viens            with the intent  to kill him.  The court  did not clearly err            when it sentenced Yanovitch pursuant to U.S.S.G.   2A2.1.                      Affirmed.                      ________                                            ____________________            16.   While    2A2.1 (Assault with  Intent to Commit  Murder;            Attempted Murder) has  a base  offense level of  22,    2A2.2            (Aggravated Assault) has a base offense level of 15.            17.   The PSR stated, in relevant part: "Yanovitch got out of            the car, fired  one round into the ground, then  walked up to            Viens and shot at Viens at least  twice, striking him once in            the  abdomen and  once in  the upper  thigh.   Yanovitch then            pursued  Viens up the  street, put the  gun 2 to  3 feet from            Viens' head, fired again, but missed."                 Veneau  stated,  in  pertinent  part:   "  . . . when  I            looking back I see Gerry Yanovitch 'bout three feet, two-and-            half  feet behind  Bobby [Viens]  pointing a,  something that            looks like  a small calibre  handgun towards Bobby's  head, I            hear another one, bang.   There's five shots, all  together I            heard -- miss Bobby . . . ."                                         -35-                                          35
