                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1298

                          UNITED STATES,

                            Appellee,

                                v.

                          GARY P. NEAL,

                      Defendant, Appellant.

                                           

No. 93-1334

                          UNITED STATES,

                            Appellee,

                                v.

                     WILLIAM F. KENNEY, JR.,

                      Defendant, Appellant.

                                           

No. 93-1335
                          UNITED STATES,

                            Appellee,

                                v.

                 CHARLES J. FLYNN, a/k/a CHUCKY,

                      Defendant, Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Shane Devine, Senior U.S. District Judge]
                                                       

                                           

                              Before

                 Selya and Boudin, Circuit Judges,
                                                 

                   and Carter,* District Judge.
                                              

                                           

     Paul W. Pappas, by  Appointment of the Court, for  appellant
                   
Gary P. Neal.
     Michael J. Iacopino, by Appointment of  the Court, with whom
                        
Timothy  I. Robinson and Brennan, Caron,  Lenehan &amp; Iacopino were
                                                            
on brief for appellant William F. Kenney, Jr.
     Robert Sheketoff with  whom Sheketoff &amp;  Homan was on  brief
                                                   
for appellant Charles Flynn.
     Robert J. Veiga, Assistant United States Attorney, with whom
                    
Paul  M.  Gagnon,  United  States  Attorney,  was  on  brief  for
                
appellee.

                                           

                        September 30, 1994
                                           

                    

*  Of the District of Maine, sitting by designation.

                               -2-

          CARTER,  Chief  District  Judge.    Appellants  Charles
                                         

Flynn, William Kenney, and  Gary Neal were found guilty by a jury

on a number of criminal  charges stemming from a series of  armed

robberies that took place in New Hampshire.  Appellants challenge

their convictions on the basis  of various pre-trial, trial,  and

post-trial rulings issued by the court as well as statements made

by the Government.  We affirm on all but two of the issues raised

by Appellants.

          The first  of these issues involves  various Jencks Act

requests  made by  Appellant  Flynn.   We  find that  the  record

indicates the district judge may  have applied an erroneous legal

standard  in ruling  that  various materials  did not  qualify as

statements  under the Jencks Act.  Accordingly, we will remand to

the  district  court  for  an evidentiary  hearing  to  determine

whether statements  demanded by Appellant Flynn  should have been

disclosed under the Jencks Act and,  if so, whether nondisclosure

constituted harmless error.  We also remand to the district court

on  the  issue  of  the  order  of  restitution  entered  against

Appellant  Neal with  instructions  that  a  hearing be  held  to

determine whether the full amount  of monetary losses suffered by

First New  Hampshire Bank was  caused by  the conduct  underlying

Neal's convictions.  

          At this  point  in the  proceedings, we  choose not  to

vacate the court's Jencks Act rulings or the order of restitution

but  instead remand to the district court for the limited purpose

of  making supplemental findings with regard to these two issues.

                               -3-

In  the interim, we will retain appellate jurisdiction so that we

may   review  the   court's  augmented   record  and   subsequent

determinations.

                        FACTUAL BACKGROUND
                                          

          Appellants  were tried by a jury in the District of New

Hampshire during the months of October and November of 1992.  The

evidence  presented and  believed by  the jury  demonstrated that

Appellants were involved, in  varying capacities, in carrying out

five armed robberies over a  five-month period beginning with the

armed robbery of a supermarket and ending in armed robbery of the

First New Hampshire Bank ("First  N.H.").1  Appellants were tried

                    

1  Appellants were initially indicted for committing seven crimes
which included:

          (1) the  armed  robbery  of the  Demoulas
              Market   Basket,  a   supermarket  in
              Portsmouth,  New Hampshire,  on April
              13, 1991;

          (2) the armed  robbery of an  employee of
              the Abercrombie  and Finch restaurant
              as she was attempting to make a night
              deposit  of $4800 at  a Fleet Bank in
              North   Hampton,  New   Hampshire  on
              May 19, 1991; the jury rendered a not
              guilty  verdict  on counts  involving
              this robbery;

          (3) the armed robbery of an employee of a
              retail  store  called the  Dress Barn
              while she was  attempting to  deposit
              $763  into the  night deposit  box at
              the    First    National   Bank    of
              Portsmouth, New Hampshire on  June 7,
              1991;

          (4) the armed robbery  on June 30,  1991,
              of an employee of  Phantom Fireworks,
              Inc.  in   Seabrook,  New  Hampshire;
              counts  involving  this robbery  were

                               -4-

on a thirty-two-count indictment charging them as follows:

            Counts  1 and 2  charged Appellants Flynn
                           
            and   Kenney   with  violations   of  the
            Racketeer    Influenced    and    Corrupt
            Organizations  Act, 18  U.S.C.    1962(c)
            and (d), with each of the seven robberies
            alleged as predicate acts;

            Count 3 charged all three Appellants with
                   
            conspiracy  to  commit  robbery of  First
            N.H. in violation of 18  U.S.C.   371 and
            18 U.S.C.   2113(a) and (d);

            Counts  4 and  5 alleged  that Appellants
                            
            Flynn  and  Kenney  committed  armed  and
            unarmed  bank robbery  of First  N.H., in
            violation of 18 U.S.C.   2113(d)  and (a)
            and 18 U.S.C.   2;

            Counts  6 through 15,  17, and 18 alleged
                                             
            conspiracy and interference with commerce
            by threats  or violence, in  violation of
            the Hobbs Act, 18 U.S.C.   1951, with one
            or more counts  corresponding to each  of
            the seven robberies.  Flynn  was named in
            all counts;  Kenney was named in counts 8
            through 18;

            Counts 16  and 20 through  25 charged the
                                         
            use and carriage  of firearms during  and
            in  relation to  crimes  of violence,  in
            violation of 18 U.S.C.    924(c)(1), with

                    

              dismissed by the court;

          (5) the armed robbery  on August 3, 1991,
              of the home of James Fitzpatrick, the
              owner of a  chain of stores known  as
              Lighthouse Markets, Inc., in Hampton,
              New Hampshire;

          (6) the armed robbery on August 17, 1991,
              of  the  person of  James Fitzpatrick
              after  he  made his  night  rounds to
              collect  receipts  at  each   of  his
              stores; and

          (7) the armed  robbery of the  First N.H.
              in   Stratham,   New   Hampshire   on
              September 9, 1991.

                               -5-

            each  count corresponding  to one  of the
            seven robberies.  Flynn was named  in all
            counts and Kenney was named in all counts
            except Count 20;

            Counts  19  and  26  through  29  charged
                                            
            possession  of a  firearm by  a convicted
            felon,   in   violation   of  18   U.S.C.
              922(g).   Flynn was named  in Count  19
            only; Kenney was named in Count 26 only;

            Count 30  charged  Appellant Neal  as  an
                    
            accessory after the fact, in violation of
            18 U.S.C.   3;

            Count 31 charged money laundering against
                    
            Appellants Neal and  Flynn, in  violation
            of  18 U.S.C.    1956 and 18  U.S.C.   2;
            and

            Count 32 charged criminal forfeiture of a
                    
            1987 Nissan automobile  against Neal  and
            Flynn, in  violation of 18  U.S.C.    981
            and 1956.

Government's Consolidated Brief at 3-6.

          Appellants were initially charged with three  other co-

conspirators, Bruce Raineri, Brian Raineri, and Richard Ferguson.

These three  men pled guilty  and cooperated  to varying  extents

with  the  Government.   Several  other  alleged co-conspirators,

including  Arthur  Cosgro  and Thomas  McQueeney,  also  provided

evidence against Appellants.    

          The  evidence presented during the thirty-one-day trial

is  sufficient  to justify  the  following  conclusions of  fact.

Appellant  Charles Flynn,  a/k/a  "Chuckie," was  the leader  and

organizer of  the group  of  co-conspirators.   Flynn scoped  out

robbery  locations, devised  the plans,  and recruited  others to

commit  or  assist  in  the  crimes.    Appellant William  Kenney

participated  as  the gunman  and  shared  in  proceeds  of  four

                               -6-

robberies planned by Flynn,  excluding the Market Basket robbery.

Kenney also assisted Flynn in 

                               -7-

surveilling armored  cars that serviced various  stores and banks

which were prospective robbery sites.  Appellant Gary Neal played

a  more limited role in the overall conspiracy (this is reflected

by the  fact that he was  indicted on only four  counts and found

guilty  on two  counts  limited  to  the  bank  robbery).2    The

evidence demonstrated  that Neal  provided his  home  to the  co-

conspirators where they planned the bank  robbery and took refuge

after  they  committed  the  crime.   Immediately  following  the

robbery, Neal carried  a box from  the getaway car into  his home

containing the gun used in the bank robbery along with the stolen

proceeds.  He also  used proceeds from the robbery to  purchase a

car  in his name that was  used by Flynn and  Kenney to travel to

Arizona and then to  California in order to  escape the scene  of

the crime.  On their  trip, Flynn and Kenney disposed of  clothes

used in the crime and stored the gun used in all five crimes in a

garage  belonging  to   Patricia  Ferguson,  a   co-conspirator's

relative.

          On defendants'  motions at  the close of  the evidence,

the court dismissed RICO  Counts 1 and 2, finding  the Government

failed to demonstrate  a sufficient continuity of  offenses.  The

court also dismissed  Counts 12,  13, and 23,  all involving  the

Phantom Fireworks robbery.   The jury then rendered its verdicts,

finding Flynn guilty on all remaining charges  against him except
                                                                 

Counts 8, 9, and  21, involving the night  deposit robbery of  an

                    

2  The  four counts  include conspiracy to  commit bank  robbery,
accessory after the  fact to bank robbery, money  laundering, and
criminal forfeiture.  

                               -8-

employee  of Abercrombie  and Finch restaurant.   The  jury found

Kenney  guilty on all remaining counts against him except for the
                                                         

counts involving the Abercrombie and Finch robbery and found Neal

guilty of being an accessory after the fact and money laundering,

as  alleged  in Counts  30 and  31, but  not  guilty on  count 3,

alleging conspiracy to rob First N.H.

                            DISCUSSION
                                      

          Appellants raise a litany of challenges against various

rulings issued by the district court judge and statements made by

the Government throughout the proceedings.  The Court finds merit

in Appellant  Flynn's argument that  both the Government  and the

district judge were operating under an improper legal standard in

determining what statements qualified  as Jencks Act material and

should  have been  disclosed to  the defense  during trial.   The

Court also  finds merit  in Appellant  Neal's  argument that  the

court erred in ordering  $266,500 in restitution against  him for

his role  in the First  N.H. robbery.   These  arguments will  be

treated first.  The Court finds no merit in Appellants' remaining

claims which  will be discussed, in  turn, in the order  of joint

challenges raised  by Appellants  followed  by challenges  raised

individually by Flynn, Kenney, and Neal.

                  I.  LEGAL STANDARD USED BY THE
                                                
             COURT AND GOVERNMENT IN DETERMINING WHAT
                                                     
         EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN
                                                        

                         A.  Brady Claims
                                         

          Appellant  Flynn has  framed  much of  his argument  on

appeal in  terms of a  Brady violation.   Brady v. Maryland,  373
                                                           

                               -9-

U.S.  83  (1963)(holding  that   a  prosecutor's  suppression  of

evidence favorable to  and requested by a  defendant violates due

process  where   the  evidence  is   material  to  guilt   or  to

punishment).    Appellant  points  to statements  in  the  record

indicating that  the Government attorney  harbored an erroneously

narrow view  of what materials  were exculpatory and  should have

been  disclosed to the defense pursuant to Brady and its progeny.
                                                

Flynn acknowledges that the  Government provided certain disputed

materials to  the trial court for in  camera review.  However, he
                                            

argues that the Government's erroneous view of what qualified  as

Brady,  as  a  threshold  matter, most  likely  resulted  in  the
     

withholding of  many other exculpatory materials  from the court.

He requests this Court  to unseal the documents that  were turned

over,  remand the case for further hearing in the district court,

and order that the  Government disclose all other Brady  material
                                                       

in its possession. 

          A careful  and thorough  review of the  record supports

Appellant's assertion that  the Government attorney misunderstood

the reach of  Brady.3   However, in virtually  every instance  of
                   

                    

3  In one  example of this misunderstanding,  Appellant's counsel
inquired  whether  any Brady  material  existed  with respect  to
Richard  Ferguson,  a  co-conspirator  who  cooperated  with  the
Government.  The Government attorney replied:

            First  of all,  it's not  Brady material.
            If   it's   anything,  it's   impeachment
            material, if it is even that.  

Tr.   (October 19,  1992)  at 115.   In  a  second incident,  the
Government attorney stated that:

            Prior  inconsistent  statements  are  not

                               -10-

dispute  pointed  out  by   Appellant  and  the  Government,  the

Government attorney  indicated on  the record that  all materials
                                                       

related to the witness in question were being  turned over to the

district judge  for review.4   Appellant  makes no argument  that

                    

            Brady.   I'll be  happy at some  point to
            give   Mr.  Wilson   a   lesson  in   the
            difference between  Brady and impeachment
            material, but there  is a difference  all
            the  way up to  the United States Supreme
            Court.

Tr.  (October 20, 1992) at 77.

   These   statements   reflect   a   misunderstanding   on   the
Government's  part  of the  Brady rule.    The Supreme  Court has
                                 
clearly  stated that  impeachment  evidence may  well qualify  as
Brady  material.   United  States v.  Bagley,  473 U.S.  667, 676
                                            
(1985); Giglio v. United  States, 405 U.S.  150, 154 (1972).   As
                                
the Court explained in Giglio:
                             

            When the 'reliability  of a given witness
            may well  be  determinative of  guilt  or
            innocence,'  nondisclosure  of   evidence
            affecting credibility  falls within th[e]
            general rule [of Brady].

Giglio, 405 U.S. at 154.
      

   The significance of the Government's failure to appreciate the
nature of exculpatory evidence under Brady is demonstrated by its
evaluation of materials related to the witness James Fitzpatrick,
who was  testifying about a robbery  of his home.   Tr.  (October
28, 1992) at 115.  The court reviewed  these materials, which the
Government had  claimed did not  fall under Brady,  and disclosed
them to the defense because it found that the materials contained
exculpatory evidence.  Id. at 121.  The defense  was  able to use
                          
the  materials  quite  effectively  in  the cross-examination  of
Fitzpatrick.  Id. at 123-24 and 126-44.
                 

4  All materials  were supplied for the court's  review regarding
Brady or  Jencks Act  requests  with respect  to witnesses  Laura
     
MacPherson, Tr.  (October 8, 1992) at 119-21; Anita Ramsdell, Id.
                                                                 
at  217; Richard Ferguson, Tr.  (October 9, 1992)  at 225-26, Tr.
(October 14, 1992) at 153; Sergeant  Coleman Forbes, Tr. (October
15,  1992)  at  123, Tr.  (October  16,  1992)  at 142;  Terrence
Kinneen, Tr.  (October  16, 1992)  at  91; Douglas  Scamman,  Tr.
(October 19,  1992) at  172-74; Arthur  Cosgro, Tr. (October  20,

                               -11-

the  district judge  erred in his  understanding of  Brady, other
                                                          

than pointing out  that the judge never  corrected the Government

attorney when  he mischaracterized Brady's mandate.   Our reading
                                        

of   the   record   satisfies   us  that   the   district   judge

conscientiously  reviewed all  materials  in question.    Because

Appellant  points   to  no   other  evidence  to   indicate  that

exculpatory  evidence was  withheld in  violation  of Appellant's

Fifth Amendment right  to a  fair trial, we  affirm the  district

court's Brady rulings.

               B.  Disclosure Under the Jencks Act
                                                  

          Appellant's   other   argument,  that   the  Government

attorney  too narrowly construed the reach of the Jencks Act, has

much more  bite because  the record  indicates that the  district

judge  adopted  the  Government's  misinterpretation   and  ruled

against several Jencks Act requests on an erroneous legal ground.

Before discussing the legal  error in detail, it is  necessary to

consider the purpose and provisions of the Act.   

          The  Jencks   Act  establishes  procedures   whereby  a

criminal  defendant  may exercise  his  limited  right to  obtain

previous  statements made  by  government witnesses  that are  in

possession  of  the  United  States  Government  to  be used  for

impeachment purposes.  18 U.S.C.   3500.  Subsections (a) and (b)

of  the  Act provide  that prior  statements  are not  subject to

                    

1992) at  74; Linda Sherouse, Tr.  (October 27, 1992 -- afternoon
session) at 87; Thomas McQueeney and  Brian Raineri, Tr. (October
28, 1992) at 17, Tr. (November  2, 1992) at 3-4, Tr. (November 3,
1992) at  219-20; James  Fitzpatrick, Tr. (October  28, 1992)  at
115, 121.

                               -12-

disclosure until the witness  has testified on direct examination

and are available only  to the extent that the  statements relate

"to  the subject matter as  to which the  witness has testified."

18  U.S.C.     3500(a) and  (b).   The  Act further  requires the

defendant  to make a motion for production.  18 U.S.C.   3500(b).

Subsection  (e)  defines  "statements"  subject  to  the  Act  as

follows:

          (1)  a  written  statement made  by said
               witness  and  signed  or  otherwise
               adopted or approved by him;
          (2)  a     stenographic,     mechanical,
               electrical, or  other recording, or
               a transcription thereof, which is a
               substantially  verbatim recital  of
               an  oral  statement  made  by  said
               witness         and        recorded
               contemporaneously  with the  making
               of such oral statement; or
          (3)  a   statement,  however   taken  or
               recorded,   or    a   transcription
               thereof,  if  any,  made   by  said
               witness to a grand jury.       

18 U.S.C.   3500(e).  

          At issue  in  this case  is  the reach  of  subsections

(e)(1) and  (e)(2) which first came into dispute on the third day

of trial.   18  U.S.C.     3500 (e)(1) and  (e)(2).   Appellant's

counsel was conducting  cross-examination of Laura  MacPherson, a

teller  for  First  N.H.  who  had  witnessed  the bank  robbery.

MacPherson  testified  that while  she  was  being questioned  by

police  at the scene  of the crime,  an officer was  taking notes

based  on what she was  saying.  Appellant's  counsel then called

for  a  sidebar requesting  that the  Government turn  over these

notes pursuant to the Jencks Act:

                               -13-

            Court:   It  isn't [Jencks]  unless she's
            seen it and adopted it.  

            Counsel:   But if  18  3500 controls  [18
            U.S.C.   3500], as I read it, a statement
            that  is  taken  down  by   anybody,  she
            doesn't  have to  adopt  it.   If it's  a
            written statement taken  down by a person
            dealing  with  the   subject  matter   in
            question,  I'm entitled  to  it.   And  I
            refer to 18 3500(e)(2).    

            Government:      As   I  understand   the
            application  of  the  cited   rule  under
            Jencks,  what  counsel  is  referring  to
            under (e)(2) is a mechanical recording or
            a  transcription of  a recording  of some
            kind,  either  stenographic,  mechanical,
            electrical,   or   other   recording   or
            transcription of that recording; that is,
            a transcript.  There is no  such material
            as  the statement is defined under Jencks
            as I read the statute in that rule.    

            Court:   That was my understanding of the
            interpretation of the  statute, sir,  and
            there  are  none  of  those  stenographic
            recordings [or] transcriptions.  

Tr. (October 8, 1992) at 118, 121-22.

          While   the   Government   attorney  mentioned   "other

recording,"  it is clear from a reading of the entire interchange

that the  court and Government attorney  disagreed with counsel's

argument  that subsection  (e)(2) of  the Jencks  Act encompasses

oral  statements  made  by witnesses  that  are  written down  by

government agents as  they are taking notes on  the conversation,

so long  as such statements are  substantially verbatim accounts.

Further, the trial record is replete with statements by the court

indicating  that  it  viewed  subsections (e)(1)  and  (e)(2)  as

limited to statements  that are  either adopted by  a witness  or

                               -14-

recorded through stenographic or some kind of mechanical means.5

          This legal basis, cited  as the ground for many  of the

court's Jencks Act rulings, is erroneous.  Since 1959, the United

States  Supreme Court has held  that the phrase "other recording"

in subsection  (e)(2)  "was meant  to  encompass more  than  mere

automatic reproductions  of oral statements."   Palermo v. United
                                                                 

States,  360  U.S.  343,  352  (1959);  18  U.S.C.    3500(e)(2).
      

Following  the Supreme Court's  lead, this Court  has stated that

"[a] longhand writing  which the court found  fairly followed the

witness' words, subject  to minor, inconsequential errors"  would

fall within (e)(2).  Campbell v. United States, 296 F.2d 527, 532
                                              

(1st Cir. 1961), on remand, 199 F. Supp. 905 (D. Mass. 1961), and
                                                                 

supplemental op.,  303 F.2d 747 (1st Cir. 1962), vacated on other
                                                                 

grounds, 373 U.S. 487 (1963)(Campbell  II); see also Campbell  v.
                                                                 

United States, 365 U.S.  85 (1961)(Campbell I)(finding that typed
             

interview  report  prepared by  FBI  agent based  on  notes taken

during a pretrial  meeting with a government witness  may qualify

as  Jencks Act  statements  under subsection  (e)(1),  if it  was

adopted  by  the witness,  or  subsection (e)(2),  if  the report

closely followed notes that included verbatim statements); United
                                                                 

States    v.    Harris,    543     F.2d    1247,    1250     (9th
                      

Cir. 1976)("handwritten  or  rough  interview notes  taken  by  a

government  agent during  a criminal  investigation" may  contain

                    

5  See Appendix I  for examples of various Jencks Act  rulings by
      
the  court that were,  or could possibly  have been,  based on an
erroneous  legal ground.  The  examples in this  Appendix are not
meant to be exhaustive but  only to point out on remand  the more
obvious rulings that were arguably based on legal error.

                               -15-

substantially  verbatim recitals of witness statements producible

under the Jencks Act).  The Supreme Court has indicated, however,

that Congress intended to limit subsection (e)(2) to:

            only   those   statements   which   could
            properly  be  called  the   witness'  own
            words . . . . It [is] important  that the
            statement  could  fairly  be   deemed  to
            reflect fully and without distortion what
            had been said to the government agent.6

Id. at 352-53.
   

                    

6  The  remaining portion of  this quotation in Palermo  is worth
                                                       
citing  here to provide the court below with guidance, on remand,
in  determining  whether  the  disputed   statements  fall  under
subsection (e)(2) of the Act:

            Distortion   can   be   a    product   of
            selectivity as  well as the  conscious or
            inadvertent  infusion  of the  recorder's
            opinions  or  impressions.   It  is clear
            from    the   continuous    congressional
            emphasis   on   'substantially   verbatim
            recital,'   and   'continuous,  narrative
            statements, made by the  witness recorded
            verbatim,  or  nearly so . . .'  that the
            legislation was designed to eliminate the
            danger       of      distortion       and
            misrepresentation  inherent  in a  report
            which  merely  selects  portions,  albeit
            accurately, from a lengthy  oral recital.
            Quoting out of context is one of the most
            frequent    and    powerful   modes    of
            misquotation.    We  think it  consistent
            with this legislative  history, and  with
            the  generally  restrictive terms  of the
            statutory  provision,   to  require  that
            summaries  of  an  oral  statement  which
            evidence    substantial    selection   of
            material,  or  which were  prepared after
            the interview without the aid of complete
            notes,  and hence  rest on the  memory of
            the  agent,  are   not  to  be  produced.
            Neither, of course, are  statements which
            contain  the  agent's interpretations  or
            impressions.

Palermo, 360 U.S. at 352-53.
       

                               -16-

          In United  States v. Newton, 891 F.2d  944, 953-54 (1st
                                     

Cir. 1989),  this Court  rejected an  argument that  the district

court erred  by not conducting  an inquiry into  whether disputed

notes were  "substantially  verbatim" statements  by the  witness

pursuant  to 18 U.S.C.   3500(e)(2).  We rejected the argument on

two grounds: first because  Appellant failed to make a  motion on

the  basis of  that subsection  to the  court below  and, second,

there was no testimony in the  record to indicate that "the agent

[had been] recording  the exact words  of the witness."   Id.  at
                                                             

954.   In this case, however, Appellant's counsel elicited from a

number  of witnesses  that agents  had been  taking notes  as the

witnesses   were   making   statements;  at   sidebars,   counsel

specifically  cited  (e)(2) as  the  basis  for  his  Jencks  Act

motions; and he registered, on the record,  his disagreement with

the court's and the Government's interpretation of the statute.

          Appellant clearly raised this  issue to the court below

and on  appeal.  After  examining the  record, we  find that  the

district  judge  likely ruled  against  a  number of  Appellant's

Jencks Act requests on  an erroneous legal ground.7   Rather than

                    

7   In all honesty, this Court has not always been as clear as it
should  have been  in  pointing out  the distinctions  between 18
U.S.C.    3500 (e)(1) and (e)(2).  In United States v. Sep lveda,
                                                                
15 F.3d 1161, 1179 (1st Cir. 1993),  this Court indicated that to
be  discoverable  under  the  Jencks Act,  a  statement  must  be
"substantially  a  verbatim  account" and  "signed  or  otherwise
                                         
verified  by the  witness himself."   The statements  in question
satisfied neither requirement.  It is clear from a reading of the
authorities  cited  in  Sep lveda,   however,  that  this   Court
                                 
interprets  the Jencks Act as requiring either a showing that the
                                              
statement  is a  substantially  verbatim account  or that  it was
                                                    
adopted  by the witness.  See, e.g., United States v. Newton, 891
                                                            
F.2d   944,  953-54  (1st  Cir. 1989)(concerning  statement  that

                               -17-

vacate  the court's Jencks Act  rulings, we choose  to remand the

case for the limited purpose of the taking of additional evidence

while  retaining appellate jurisdiction in the  interim.  We have

previously noted  the usefulness  of such  a limited remand,  see
                                                                 

United  States v.  Levy,  897  F.2d  596,  599  (1st  Cir.  1990)
                       

(endorsing limited  remand for  purposes  of clarification  where

ambiguities lurk in the sentencing record), and have employed the

practice in several cases.  See,  e.g., U.S. v. Qui ones, No. 93-
                                                        

1601, slip op.  at 16-17  (1st Cir. May  20, 1994)(remanding  for

evidentiary hearing to determine whether sentencing departure was

warranted while retaining appellate jurisdiction);  United States
                                                                 

v. Parra-Iba ez, 936 F.2d  588, 598 (1st Cir. 1991)(remanding for
               

evidentiary  hearing to  determine whether  error during  Rule 11

colloquy  was harmless  while retaining  appellate jurisdiction),

remanded, 951 F.2d 21 (1st Cir. 1991).
        

          On   remand,  the   district  court   should  hold   an

evidentiary hearing  and report  its findings back  to us  within

ninety (90) days.   The hearing should be limited  to determining

whether  Appellant Flynn's  motions  for production,  which  were

denied on the basis  of the erroneous legal ground  identified in

this opinion,  should have been granted,  and documents produced,

under the Jencks Act.  We intimate  no view on whether disclosure

of  any  of these  materials was  required.   The  district court

                    

arguably  fell under  18 U.S.C.    3500(e)(2)); United  States v.
                                                                 
Gonz lez-S nchez, 825 F.2d 572,  586-87 (1st Cir.), cert. denied,
                                                                
Latorre  v.   United  States,  484   U.S.  989  (1987)(concerning
                            
statement that arguably fell under 18 U.S.C.   3500(e)(1)).

                               -18-

should  conduct  this  hearing,   applying  the  legal  standards

articulated in this opinion and  limited to examining whether the

disputed  materials contain  substantially  verbatim recitals  of

witness statements as  defined under subsection  (e)(2).  If  the

court  determines that the  materials in question  do not contain

producible  statements  or  that  the  nondisclosure  of  certain

statements, while legal error, was harmless, it should supplement

the record by setting forth its findings and explaining why a new

trial  is not  required.    If,  on the  other  hand,  the  court

concludes  that  the  Government  should have  been  required  to

deliver certain materials, or  portions of materials, pursuant to

subsection (e)(2),  and that the  error of nondisclosure  was not

harmless,  it should vacate the  judgment of conviction and grant

Appellant Flynn a new trial.

               II.  THE COURT'S ORDER OF $266,500 
                                                  
              IN RESTITUTION AGAINST APPELLANT NEAL
                                                   

          Appellant Neal alone challenges the court's restitution

order  of  $266,5008 to  First N.H.  pursuant  to the  Victim and

Witness  Protection Act ("VWPA"),  18 U.S.C.     3663, 3664.   He

argues  that the district  court erred,  as a  matter of  law, by

ordering  him to pay full restitution of First N.H.'s losses from

the  robbery when those losses were not fully attributable to his

offenses  of  being  an  accessory   after  the  fact  and  money

laundering.   We review this claim  of legal error de  novo.  See
                                                                 

United States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993).
                       

                    

8    Appellants  Flynn  and  Kenney  were  also  ordered  to  pay
restitution to First N.H. in the amount of $266,500.

                               -19-

          In  cases  where  a  defendant has  been  convicted  of

specific federal offenses, section 3663  of the VWPA authorizes a

sentencing  court to order, "in  addition to or . . .  in lieu of

any  other penalty  authorized by  law, that  the  defendant make

restitution to any victim of such offense."  18 U.S.C.   3663(a).

The following  section, 18 U.S.C.   3664(a), directs the court to

consider a number  of factors,  including loss  sustained by  the

victim as a  result of the offense, in determining  the amount of

restitution to be  ordered against  a defendant.9   In Hughey  v.
                                                                 

United  States, 495  U.S.  411,  413  (1990), the  United  States
              

Supreme Court  interpreted these provisions as  setting a maximum

limit whereby  restitutionary awards under  the VWPA  are not  to

exceed "the loss caused by the specific conduct that is the basis
                                               

of the offense of conviction." 

          In objecting to the restitutionary award in proceedings

below, Neal argued that he was  compensated no more than $5000 by

the armed robbers  for assisting them in evading  law enforcement

officials and laundered about $14,000  of the robbery proceeds by

purchasing a getaway  vehicle that was  later confiscated by  the

Government.   In an order  dated February 22,  1993, the district

                    

9   18  U.S.C.    3664(a)  directs  the  court  to  consider  the
following factors:

             . . . the amount  of the loss  sustained
            by any victim as a result of the offense,
            the financial resources of the defendant,
            the financial needs  and earning  ability
            of  the  defendant  and  the  defendant's
            dependents, and such other factors as the
            court deems appropriate.

                               -20-

court summarily  dismissed Neal's argument that he  should not be

required  to  make restitution  in  an  amount greater  than  the

proceeds that  he personally obtained  from the  robbery.   Order

(Docket No. 302) at 3-4.  While the court was correct in its view

that  the  VWPA  does  not require  restitutionary  awards  to be

limited to the amount obtained by the defendant, the record gives

no  indication  of  whether  the court  calculated,  pursuant  to

Hughey, the  portion of  First N.H.'s losses  that were  actually
                                                                 

caused by  the specific  criminal conduct  forming the  basis for
                                                                 

Neal's convictions.  
                  

          The VWPA,  itself, does not  require the court  to make

explicit findings  to justify restitutionary awards.   This Court

has held "that a district judge need not make open-court findings

on the statutory factors when issuing a restitution order so long

as  the record  on appeal  reveals that  the judge  made implicit

findings  or otherwise  adequately evinced  his consideration  of

those  factors."   Savoie,  985 F.2d  at  618.   The record  here
                         

indicates that the court  ordered the same restitutionary amounts

of $266,500  against Appellants  Neal,  Kenney, and  Flynn.   The

record also indicates  that in connection with  the bank robbery,

Kenney  and Flynn were convicted of conspiracy to rob First N.H.,

conspiracy and interference with  commerce by threats or violence

in  violation of the  Hobbs Act, and  the use of  firearms during

crimes  of violence.  Kenney was also convicted for possession of

a  firearm by a convicted  felon in committing  the bank robbery,

and  Flynn was convicted of money laundering.  In comparison with

                               -21-

Flynn  and Kenney, Neal was convicted of being an accessory after

the fact  and money laundering.   Given these  factors indicating

the  disparate nature of Neal's criminal conduct, there is not an

adequate basis in  the record to  determine whether the  district

judge found that the full amount of losses suffered by First N.H.
                                                                 

was  "caused by  the specific  conduct that  [was] the  basis of"

Neal's convictions.  Hughey, 495 U.S. at 413.
                           

          Such  a determination  was required  in this  case even

though Congress amended certain provisions of the VWPA soon after

the Hughey  decision as  part of the  Crime Control Act  of 1990.
          

See Pub. L.  No. 101-647,    2509, 104  Stat. 4789, 4863  (1990).
   

One of  the amended subsections,  codified at  18 U.S.C.  section

3663(a)(2), expanded  the definition of "victim"  for purposes of

restitution, providing in pertinent part that: 

            a victim  of an offense that  involves as
                                                     
            an element  a scheme, a  conspiracy, or a
                      
            pattern  of  criminal activity  means any
            person directly harmed by the defendant's
            criminal conduct  in  the course  of  the
            scheme, conspiracy, or pattern.

18 U.S.C. section 3663(a)(2)(emphasis added).  This broadening of

the definition  of "victim" appears  to apply to  cases involving

mail fraud,  racketeering, or  other federal crimes  that require

proof  of a scheme,  conspiracy, or pattern  of criminal conduct.

This Court faced such a case in U.S. v. Cronin, 990 F.2d 663 (1st
                                              

Cir. 1993)  and  decided  that  where  defendants  had  committed

various  mail  fraud  offenses  prior  to  enactment  of  section
                                         

3663(a)(2), restitution should be  limited to the amounts alleged

in the specific counts  on which each defendant was  found guilty

                               -22-

and not awarded  for the full amount of  losses stemming from the

mail fraud scheme of which each defendant was a part.  

          While  the bank  robbery alleged  in the  indictment in

this  case occurred  subsequent to  the VWPA  amendments, section
                                  

3663(a)(2) does  not appear  to support the  restitutionary award

entered against  Appellant Neal.   Neal  was  convicted of  money

laundering and  of being an accessory after the fact.  Neither of

these  offenses involves proof of a scheme, conspiracy or pattern

of criminal  activity as an element.   See 18 U.S.C. section 1956
                                          

(laundering  of monetary  instruments)  and 18  U.S.C. section  3

(accessory after the fact).    

          Accordingly, we remand the case with instructions  that

the court hold a  hearing to determine whether the full amount of

damages  suffered by First  N.H. are attributable  to the conduct

underlying Appellant's  convictions.10   We leave  the dimensions

of  the hearing,  as well  as the  necessity vel  non for  taking
                                                     

additional  evidence, in  the  sound discretion  of the  district

court.   Similar  to  the limited  remand  that we  ordered  with

respect to Appellant Flynn's Jencks Act challenge, see pp.  16-17
                                                      

                    

10  We do not mean to suggest that on remand there is no possible
basis  for holding Neal accountable for the full amount of losses
suffered by First N.H.   We are only suggesting that  the record,
as  it  stands,   does  not  indicate  whether,   and  upon  what
evidentiary  basis,  the trial  judge  determined  that the  full
amount of losses are attributable to Neal's criminal conduct.  If
on  remand, for  example, evidence  is presented  indicating that
Neal played  a significant role  in helping the  other defendants
escape  and that  but for  his actions,  there was  a substantial
likelihood that the full proceeds would have been  recovered, the
court  could well be  within its statutory  authority in imposing
the full $266,500 in restitution.

                               -23-

supra, we will retain appellate jurisdiction and order the  court
     

to  report its findings  to us within  ninety (90) days.   If the

court determines  that the full  amount of  First N.H.'s  damages

were caused by Appellant's criminal conduct, it should supplement

the record with these findings.   If the court concludes that the

full restitutionary  award is not supported by facts presented at

the evidentiary hearing, it  should vacate the award and  enter a

new  restitutionary  order based  upon  a  determination of  that

amount of damages suffered by First N.H. which is attributable to

the conduct underlying Appellant's convictions.

                      III.  JOINT CHALLENGES
                                            

        A.  The Court's Failure to Define Reasonable Doubt
                                                          

          Appellants Flynn,  Kenney,  and  Neal  argue  that  the

court's  jury  instructions,  which  failed to  define  the  term

"reasonable doubt" and used  the phrase "by medium of  admissible

evidence,"11 violated  their due-process  rights to a  fair trial

and  undermined  confidence that  their  convictions  rested upon

proof comporting with the constitutional minimum.

          This Court has clearly  held that "an instruction which

                    

11   The district court  judge used this  phrase in the following
context:

            The law  in the United States  of America
            presumes each defendant to be innocent of
            crime, and this presumption  of innocence
            can be overcome only when the government,
            by   medium   of   admissible   evidence,
                                                    
            satisfies  its  burden of  convincing the
            jurors beyond a  reasonable doubt of  the
            guilt  of  each  defendant  as  to  every
            element  of the  offense with  which that
            defendant has been charged.

                               -24-

uses  the  words  reasonable  doubt  without  further  definition

adequately apprises the jury  of the proper burden of  proof," so

long  as the phrase is not buried as  an aside.  United States v.
                                                                 

Olmstead, 832 F.2d  642, 646 (1st  Cir. 1987), cert. denied,  486
                                                           

U.S.  1009 (1988).  This Court is satisfied that the instructions

rendered in this  case fully satisfy  constitutional requirements

and   comply  with   Olmstead.12     The  judge   reiterated  the
                             

                    

12   In addition  to the instructions listed  in n.11, supra, the
                                                            
court further instructed the jury as follows:

            Moreover,  the law  never imposes  upon a
            defendant   the   burden   or   duty   of
            testifying or producing any  evidence, so
            a  reasonable  doubt may  arise  not only
            from the evidence  produced but also from
            a lack of evidence.   The government must
            prove  beyond  a reasonable  doubt  as to
            each defendant every essential element of
            the offense with which that  defendant is
            charged.  Each defendant has the right to
            rely upon the  failure of the prosecution
            to   establish   such  proof,   and  each
            defendant  may  also  rely upon  evidence
            brought   out  on   cross-examination  of
            witnesses presented by the prosecution.

The court then concluded its instructions as follows:

            To  sum up  then,  you should  treat each
            charge   made   with   respect  to   each
            defendant separately and give to  each of
            such   charges   the  same   careful  and
            thorough consideration you would  wish to
            have  given  to  each  of  you  were  you
            charged  with the  offenses set  forth in
            this indictment.  As I have indicated  to
            you, the burden in each instance which is
            placed  upon the  government is  to prove
            each element  of the offenses  with which
            each  defendant  is   charged  beyond   a
            reasonable  doubt, and  in the  event the
            government fails to sustain its burden of
            proof beyond a reasonable doubt as to any
            essential element of any  offense charged

                               -25-

government's burden of  proof a number  of times; explained  that

the  government must  satisfy this  burden with  respect to  each

element  of the offense with which each defendant is charged; and

told  the   jurors  to  consider  the   evidence  separately  and

impartially  against each defendant.  See n.12, supra.  When read
                                                     

in context, the phrase  "by medium of admissible evidence"  would

be  interpreted by a reasonable juror to mean that the government

must satisfy its burden of proof through admissible evidence.13
                                        

                    

            against each defendant, it has  failed in
            its burden of proof as  to each defendant
            and    that    defendant    is   to    be
            acquitted. . . .  So,  if any  reasonable
            doubt  remains in  your minds  as to  the
            guilt  of  any defendant  after impartial
            consideration of all of the evidence with
            respect  to  such defendant,  it  is your
            duty to  find that defendant  not guilty.
            You  should analyze what  the evidence in
            the  case  shows  with  respect  to  each
            element of each  offense charged  against
            each defendant and determine the issue as
            to whether the  government has  sustained
            its  burden of proof with respect to each
            such element.  

13    The  first  definition   of  "medium"  found  in  Webster's
dictionary is  "something  in a  middle  position" or  "a  middle
condition  or  degree."   The second  definition  is "a  means of
effecting  or   conveying  something."     Webster's   Ninth  New
                                                                 
Collegiate Dictionary (1987).
                     

   Appellants  argue that  the  trial  court's  instructions  led
jurors to  interpret  "medium"  along  the  lines  of  the  first
definition.   We note that  during the Rule  30 sidebar regarding
objections to  the instructions, Appellants did  not request that
the district court clarify  the sense in  which it used the  word
"medium."  In  addition, we  find that a  reasonable juror  would
have  interpreted  "medium"   in  accordance   with  the   second
definition where  the judge used  "beyond a reasonable  doubt" in
the  same  sentence  and  made  clear that  the  latter  standard
represented the Government's burden of proof:

            this  presumption  of  innocence  can  be

                               -26-

          Appellants ask  the Court to reconsider  its holding in

Olmstead  in  light  of  recent Supreme  Court  decisions.    The
        

opinions  cited  by Appellants,  however,  do  nothing more  than

provide support  for Olmstead.   The  cases all involve  judicial
                             

attempts to  define reasonable doubt and  recognize that attempts

to  imbue  the  phrase with  exact  definition  are  fraught with

pitfalls.    See,  e.g., Victor  v.  Nebraska,  114  S. Ct.  1239
                                             

(1994)(holding  that instructions,  taken as  a whole,  correctly

conveyed  the concept of reasonable doubt despite the use of such

terms as  "moral evidence", "moral certainty,"   and "substantial

doubt"); Sullivan  v. Louisiana,  113 S. Ct.  2078 (1993)(holding
                               

that a constitutionally deficient instruction defining reasonable

doubt  cannot be harmless error); Cage v. Louisiana, 498 U.S. 39,
                                                   

41  (1990)(holding  that  a defendant's  due-process  rights were

violated where  a judge  instructed jurors that  reasonable doubt

was  equivalent   to  a   "grave  uncertainty"  and   an  "actual

substantial  doubt"  and that  jurors  could  convict if  morally

certain of a defendant's guilt).

          In Victor  v. Nebraska,  114  S. Ct.  at 1248,  Justice
                                

O'Connor noted that  the court did  not condone the  use of  such

terms as "moral certainty" in defining reasonable doubt  but went

on to find  that the instructions placed  the terms in a  context

                    

            overcome  only  when  the government,  by
            medium of  admissible evidence, satisfies
            its  burden  of  convincing   the  jurors
            beyond a reasonable doubt of the guilt of
            each defendant as to every element of the
            offense  with  which  that defendant  has
            been charged.   

                               -27-

correctly conveying the quantum of proof necessary for a  finding

of guilt.  She also noted that:

            [T]he   Constitution  neither   prohibits
            trial  courts  from  defining  reasonable
            doubt  nor requires  them to  do so  as a
            matter  of   course  (citation  omitted).
            Indeed,  so long  as the  court instructs
            the   jury  on  the  necessity  that  the
            defendant's  guilt  be  proven  beyond  a
            reasonable doubt, (citation omitted), the
            Constitution  does  not require  that any
            particular  form  of  words  be  used  in
            advising  the  jury  of the  government's
            burden of proof (citation omitted).

Victor, 114 S. Ct. at 1243.
      

          Because we find that nothing in the Supreme Court cases

cited  by  Appellants brings  into  question the  holding  in the

Olmstead case, we affirm the district court's instructions.
        

      B.  Sufficiency of Evidence Supporting Guilty Verdicts
                                                            
  of Flynn and Kenney on Counts Involving the Dress Barn Robbery
                                                                

          Appellants Flynn  and Kenney challenge  the sufficiency

of the evidence  supporting their guilty  verdicts on Counts  10,

11, and 22, involving the robbery of a Dress  Barn employee while

she attempted to  deposit about  $763 into a  night deposit  box.

Counts  10 and  11 alleged  that Flynn  and Kenney  conspired and

interfered with commerce by threats or violence in committing the

Dress  Barn  robbery in  violation of  the  Hobbs Act,  18 U.S.C.

  1951.  Count  22 involved  the use  and carriage  of a  firearm

during and in relation to a crime of violence, in violation of 18

U.S.C.   924(c)(1).

          In reviewing a  sufficiency-of-the-evidence claim,  the

Court  must view  the facts  in the light  most favorable  to the

                               -28-

Government, deferring  to the jury's verdict if  the evidence can

support  varying  interpretations,  at  least  one  of  which  is

consistent with the defendant's guilt.  United States  v. Browne,
                                                                

891 F.2d  389, 393 (1st  Cir. 1989).  Viewed  in this light,  the

evidence must  be of such  a quantum  that a reasonable  trier of

fact  could find guilt beyond a reasonable doubt but the evidence
           

need not compel such a finding.  Id.
                                    

          As  the basis  for  their  challenge, Appellants  point

primarily to inconsistencies  in identification testimony between

the bank  employee and co-conspirator Thomas McQueeny.   The bank

employee testified that the robber  was wearing a white styrofoam

woodworker's mask that stood  out from his  face and that he  was

wearing a Patagonia jacket  and a pair of  jeans.  McQueeney,  on

the  other  hand,  indicated  that  Kenney  was wearing  a  white

painter's mask made of cloth and a blue runner's suit.14

          Viewed in  the light most favorable  to the Government,

the identification testimony supports the  jury's guilty verdict.

                    

14   The remaining evidence consisted of  additional testimony by
McQueeny  who stated that  he and Flynn  watched Kenney  try on a
white  cloth painter's  mask  and that,  at  Flynn's request,  he
dropped Kenney off near  First National Bank on the  night of the
robbery carrying a  bag with the mask,  the gun, and  the gloves.
He also testified about an argument the next morning during which
Flynn  scolded  Kenney for  robbing women  with  only $600.   The
employee was unable to identify Kenney but was able to testify to
his  approximate  height and  age.   She  also testified  that he
carried a  handgun similar to the semi-automatic  admitted by the
Government as Exhibit 42 and that the stolen proceeds belonged to
a business involved in interstate commerce.  Co-conspirator Brian
Raineri testified, indicating that  he had discussions with Flynn
on  how to  rob  night depositories,  and co-conspirator  Richard
Ferguson testified that Kenney later admitted to robbing a couple
of night depositories.

                               -29-

McQueeney  indicated  that he  dropped  Kenney off  with  a white

painter's  mask and  a gun  near the  scene of  the  robbery; the

employee  testified  that  her  assailant  was  wearing  a  white

carpenter's mask and carrying a gun similar to Government Exhibit

42.   McQueeney also supplied evidence  of conspiracy, testifying

that  Flynn  watched  as  Kenney  tried  on  the  mask,  directed

McQueeney to drop Kenney off near First National Bank, and argued

with Kenney the  following morning for targeting women  with only

$600.  Kenney  later admitted to co-conspirator  Ferguson that he

robbed  some  night depositories.    While the  evidence  may not

compel  guilty verdicts,  this  Court  finds  that  it  is  of  a
      

sufficient quantum  that a reasonable  trier of  fact could  find
                  

Appellants  guilty  beyond  a  reasonable  doubt  on  the  counts

involving the  Dress  Barn robbery.    Hence, the  Court  affirms

Flynn's and Kenney's convictions on Counts 10, 11, and 22.  

         C.  The Court's Denial of Flynn's and Kenney's 
                                                        
       Motions to Set Aside Verdicts and to Grant New Trial
                                                           

          Appellants  Flynn and  Kenney argue  that  the district

court abused its discretion by denying their motions to set aside

verdicts  and to  grant  a new  trial,  arguing that  joinder  of

charges against them resulted  in prejudice, pursuant to  Fed. R.

Crim. P.  14.15   Appellants  argue  that joinder  was  initially

                    

15  Fed. R. Crim. P. 14 provides in relevant part:

            If  it  appears that  a defendant  or the
            government is prejudiced by a  joinder of
            offenses   or   of   defendants   in   an
            indictment  or  information  or  by  such
            joinder for trial together, the court may
            order an election  of separate trials  of

                               -30-

proper but  became prejudicial when the  district court dismissed

the RICO counts at the close of the Government's case for failure

to  establish a pattern of racketeering  activity.  Assuming that

initial joinder was  proper under  Fed. R. Crim.  P. 8(b),16  the

district  court has  considerable  latitude in  treating  motions

based on prejudicial joinder  under Rule 14, and "its  resolution

of  severance  questions will  be  overturned only  if  that wide

discretion is  plainly abused."   United States  v. Natanel,  938
                                                           

F.2d  302,  308 (1st  Cir. 1991), cert.  denied,  112 S.  Ct. 986
                                               

(1992); see also  United States  v. McLaughlin, 957  F.2d 12,  18
                                              

                    

            counts, grant a  severance of  defendants
            or provide whatever other  relief justice
            requires . . . .

16   Because  Appellants do  not argue  that initial  joinder was
improper and did not move for severance of offenses or defendants
before  trial, their appeal does  not implicate Fed.  R. Crim. P.
8(b).  See Appellant  Kenney's Brief at 27 (stating  that joinder
          
in the present  case was  proper at the  commencement of  trial).
Fed. R. Crim. P. 8(b) provides:

            Joinder  of  Defendants.    Two  or  more
            Joinder  of  Defendants.
            defendants  may  be charged  in  the same
            indictment  or  information  if they  are
            alleged to have participated in  the same
            act or transaction or in the same  series
            of acts or  transactions constituting  an
            offense or offenses.  Such defendants may
            be charged in one or more counts together
            or separately  and all of  the defendants
            need not be charged in each count.  

   The Court  will note  only that  initial joinder  is generally
held  to be proper where,  as here, the  indictment includes RICO
counts that link all defendants to the conspiracy, United  States
                                                                 
v. Zannino, 895  F.2d 1,  16 (1st Cir. 1990),  cert. denied,  494
                                                           
U.S. 1082 (1990), and "[embrace] all of the acts and transactions
upon which the other . . . counts [are] based."  United States v.
                                                                 
Boylan, 898 F.2d 230, 245 (1st Cir. 1990), cert. denied, 498 U.S.
                                                       
849 (1990)(quoting United  States v. Tashjian, 660 F.2d  829, 833
                                             
(1st Cir.), cert. denied, 454 U.S. 1102 (1981)).
                        

                               -31-

(1st Cir. 1992)("We review a trial court's denial of a  severance

motion  for  abuse  of  discretion and  reverse  only  if  denial

deprived defendant of a fair trial, resulting in a miscarriage of

justice").

          When  severance has  been refused,  appellants shoulder

the  burden  of making  a strong  showing  of prejudice  that the

joinder of offenses  or defendants  served to deprive  them of  a

fair trial.   Id;  Natanel, 938 F.2d at 308 (citing United States
                                                                 

v. Porter, 764  F.2d 1,  12 (1st Cir. 1985)).   Appellants  argue
         

that prejudice  resulted because the jury was  exposed to certain

evidence that would otherwise have been inadmissible against them

without the RICO counts.  They specifically point to testimony by

officials  of the New Hampshire State Police who observed them on

numerous occasions  surveilling armored trucks in preparation for

the  First N.H.  robbery.   Appellants argue that  this testimony

would not have been admitted but for the RICO counts  and that it

prejudiced the  jury in considering the  remaining counts against

them.  The admissibility  of the surveillance testimony, however,

was not limited to the RICO  counts, as Appellants argue, but was

relevant  to  Counts 3,  4,  5, 16,  17,  18,  and 19,  involving

conspiracy to commit bank robbery and other bank robbery charges.

Appellants also  give no clear indication,  other than conclusory

statements, of  how this  surveillance testimony was  so material

and  significant as to make a prejudicial finding likely on other

unrelated counts. 

          Appellants  make a  more general  "spillover" argument,

                               -32-

asserting that  evidence admitted at trial relating  to the whole

series  of robberies linked by the RICO counts made it impossible

for  the  jury  to  consider  each  defendant  and  each  offense

separately.  "There is  always some prejudice in any  trial where

more than one offense or offender are tried together --  but such

'garden variety'  prejudice, in and of itself, will not suffice."

United  States  v. Boylan,  898  F.2d 230,  246  (1st Cir. 1990).
                         

Here,  the district court  sought to minimize  the possibility of

prejudice by giving limiting instructions  in the course of trial

and instructing the  jury at the beginning and end of the closing

charge to consider the evidence against each defendant separately

with  respect to each count of  the indictment.  See  nn. 11 &amp; 12
                                                    

supra.  That the  jury was able to  follow these instructions  is
     

demonstrated  by   its   selective  verdict,17   which   provides

"reasonably  good assurance  that no  injurious spillover  effect

occurred."  Natanel, 938 F.2d at 308.  The Court  also notes that
                   

evidence at trial was presented in a compartmentalized fashion to

assist the jury in distinguishing  between the various crimes and

defendants;  i.e., the  first fifteen days  of trial  covered the
                 

First  N.H. robbery  while successive  days treated  each of  the

other predicate acts in turn.

          Finding no  abuse of discretion, the  Court affirms the

                    

17  The  jury found Appellants not guilty on Counts  8, 9 and 21,
involving the night deposit robbery of a restaurant employee, but
guilty on counts involving the five remaining robberies.  Finding
Appellant Neal guilty of money laundering and accessory after the
fact,  the jury found him  not guilty of  conspiracy to rob First
N.H.

                               -33-

trial court's  denial of  Appellants'  motions to  set aside  the

verdicts and for a new trial.

            IV.  CHALLENGES RAISED SEPARATELY BY FLYNN
                                                      

         A.  The Court's Denial of Motion for Continuance
                                                         

          Appellant Flynn  challenges the court's  denial of  his

motion  for continuance of trial  to enable him  to seek retained

counsel,  filed on  September 25,  1992, as  well as  the court's

refusal of  his motion to reconsider,  filed on the first  day of

trial, October 5,  1992.  This  Court will review  the denial  of

Flynn's motion for abuse of discretion.  United States v. Machor,
                                                                

879 F.2d 945, 952  (1st Cir. 1989), cert. denied, 493  U.S. 1081,
                                                

1094 (1990).

          The  record indicates  that Flynn first  requested, and

was granted, the right to seek retained counsel  on May 28, 1992,

after  withdrawing his motion to represent himself pro se.  Flynn
                                                         

failed to  retain counsel in  the time  allotted and on  June 18,

appeared  before  a   magistrate  judge  in  a  hearing   on  the

Government's motion  to have  counsel appointed  for him.   Flynn

told  the magistrate  that  he  still  desired to  seek  retained

counsel and mentioned  the names  of two possible  lawyers.   The

magistrate  granted the  Government's  motion  and  appointed  as

Flynn's  counsel  Attorney  Lawrence   Gillis,  who  entered  his

appearance on July 6, 1992.   This action by the court in no  way

interfered  with  Flynn's  continued  efforts to  retain  outside

counsel.

          On  September  1,  1992,  the  district  court  granted

                               -34-

Flynn's motion for continuance of trial, giving him one deadline,

which lapsed, and extending it again until September 18 to enable

Flynn  to  retain  private  counsel.18    Five  days   after  the

deadline,  on September 23, Attorney  Barry Wilson filed a motion

to  enter his appearance as Flynn's counsel and, on September 25,

filed a motion to  continue the October trial date  until January

of 1993, to  give him time  to prepare for  trial.  The  district

court denied the  September 25 motion as well as  a motion, filed

on  the first  day of  trial, to  reconsider its  ruling, finding

that: 

            Flynn's maneuvers with respect to counsel
            are such  as to  equate with a  waiver of
            his  right  to choose  counsel. . . . The
            court fully  understands the difficulties
            imposed on Attorney Gillis by Mr. Flynn's
            refusal  to date  to cooperate  with him,
            but it behooves Mr. Flynn to now sit down
            with  his appointed counsel and to assist
            him in the presentation of his defenses. 

September  28,  1992,  Order  (Docket  No. 187) at  3-4.    Trial

continued as scheduled, beginning on October 5, 1992, except that
                                                                 

Attorney Gillis withdrew and Attorney Wilson took over as Flynn's

retained counsel.

          The Sixth Amendment guarantees a defendant the right to

assistance of  counsel, which includes  the right  to counsel  of

one's choice.   United States v.  Hallock, 941  F.2d 36, 44  (1st
                                         

Cir. 1991).  While the right to effective assistance is absolute,

                    

18   Flynn's motion  was based  on an  affidavit filed  by Gillis
alleging  a  total breakdown  in  communication  with his  client
because  Flynn  refused to  cooperate  with  him  in preparing  a
defense.

                               -35-

this  Court has long  held that a  defendant's right to  choose a

particular counsel  must  be weighed  against  administration-of-

justice  concerns and "cannot be  insisted upon in  a manner that

will obstruct  reasonable and  orderly court procedure."   United
                                                                 

States v. Poulack, 556 F.2d 83,  86 (1st Cir.), cert. denied, 434
                                                            

U.S. 986  (1977); see also  Hallock, 941 F.2d at  44; Machor, 879
                                                            

F.2d at  952; Tuitt  v.  Fair, 822  F.2d  166 (1st  Cir.),  cert.
                                                                 

denied, 484 U.S. 945 (1987). 
      

          In light  of these  factors, this  Court does  not find

that the district court abused its discretion in denying  Flynn's

motion for continuance.  In essence, Flynn had nearly four months

to secure  private counsel -- from May 28,  1992, until September

18,  1992.   The trial date  was continued  for one  month at his

behest;  yet he continually failed  to meet deadlines  set by the

court.  Given these  circumstances, the Court affirms the  denial

of Flynn's belated  September 25 motion  for continuance and  his

later motion to reconsider.19  

           B.  The Court's Admission of Bank Employee's
                                                       
          Testimony and Its Denial of Appellant's Motion
                                                        
         for Judgment of Acquittal on Bank Robbery Counts
                                                         

          Appellant argues  that  the district  court  improperly

admitted  the  testimony of  bank  employee  Debbie Haskins,  who

testified with  respect to First N.H.'s  federally insured status

and  its  involvement in  interstate  commerce.   Appellant  also

challenges the  sufficiency of  the evidence  in  support of  the

                    

19    The  Court notes  that  while  Flynn's  belated motion  for
continuance  was  denied,  Attorney  Wilson  still  conducted his
representation at trial.

                               -36-

jury's guilty verdicts on the bank robbery counts.

          Appellant  first argues that  Haskins' testimony should

not  have been admitted because she  lacked personal knowledge of

the bank's FDIC  status or its involvement in interstate commerce

as required  by Fed. R. Evid.  602 (witness may not  testify to a

matter without evidence that  she had "personal knowledge of  the

matter").   In  particular,  Appellant argues  that Haskins,  who

worked  as an insurance compliance specialist for First N.H., did

not commence her employment  until a month after the  robbery, so

her testimony was based on records that she was exposed to in the

course of her later employment and not on knowledge formed at the

time of the robbery.

          Evidence is inadmissible under Rule 602 "only if in the

proper exercise of the trial court's discretion it finds that the

witness could  not have actually perceived or observed that which

he testified to."  Hallquist v. Local 276, Plumbers &amp; Pipefitters
                                                                 

Union, 843 F.2d 18,  24 (1st Cir. 1988).  Personal  knowledge can
     

include "inferences and opinions, so long as they are grounded in

personal observation and experience."  United States v. Doe,  960
                                                           

F.2d  221, 223 (1st Cir. 1992).   Haskins testified  that her job

brought  her into  contact with  records,  including certificates

provided  by the  FDIC, which  indicated that  the  Stratham, New

Hampshire branch  of First  N.H. was federally  insured, although

she  had not  personally seen  such a  certificate posted  at the

branch on the date of the robbery.  She also  testified that bank

records  to which she was  exposed indicated that  the branch had

                               -37-

customers  in  Vermont  and  Massachusetts  and  a  correspondent

banking  account in  Massachusetts.   This Court  finds that  the

district court did not abuse its discretion in admitting Haskins'

testimony because it was limited to information that she actually

perceived or  observed as an insurance  compliance specialist and

did   not   attest   to   circumstances   beyond   her   personal

knowledge.20 

          Appellant also  argues that the guilty  verdicts on the

bank  robbery counts were not  supported by a  sufficiency of the

evidence with respect  to the elements  of FDIC insurance  status

and  involvement in  interstate  commerce.21   As the  Government

points out,  Appellant moved for  judgment of acquittal  on these

counts on the basis  of other arguments and  did not argue  below

that  dismissal should  be  granted on  the above-cited  grounds.

Consequently, Appellant has waived this argument on appeal unless

the bank  robbery convictions  are "clearly and  grossly unjust."

United  States  v. L pez,  709 F.2d  742,  746 (1st  Cir.), cert.
                                                                 

                    

20  Appellant's argument that  Haskins' knowledge was not  formed
on the basis of information that she possessed on the date of the
robbery  may have diminished the value of her testimony, but such
an argument  does not  implicate  Rule 602.   "'The  extent of  a
witness' knowledge of  matters about which  he offers to  testify
goes  to  the  weight  rather  than  the  admissibility   of  the
testimony.'"   Hallquist,  843 F.2d  at  24 (quoting  Nielson  v.
                                                                 
Armstrong Rubber Co., 570 F.2d 272, 277 (8th Cir. 1978)).
                    

21   Proof  beyond a  reasonable doubt  that the  Federal Deposit
Insurance Corporation insured  the deposits of  First N.H. is  an
essential element of the  crimes alleged in Counts  3, 4, and  5,
regarding the robbery  of First  N.H. in violation  of 18  U.S.C.
  2113.   Proof beyond a  reasonable doubt that  robbery of First
N.H.  had some  effect  on interstate  commerce  is an  essential
element of the Hobbs Act violations alleged in Counts 16, 17, and
18.  18 U.S.C.   1951.

                               -38-

denied, 464 U.S. 861 (1983).
      

          Even   under  the  less   rigorous  standard  governing

sufficiency-of-the-evidence  claims,  however,   we  affirm   the

convictions.  The evidence, viewed in the light most favorable to

the  Government, could have  persuaded a  rational trier  of fact

beyond a  reasonable doubt that  First N.H. was  FDIC-insured and

involved in  interstate commerce.22  Hence,  the district court's

denial of Flynn's motion for acquittal on the bank robbery counts

is affirmed.

        C.  The Court's Denial of Motion to Sever Count 19
                                                          
        Charging Possession of Firearm by Convicted Felon
                                                         

          Appellant challenges the district court's denial of his

motion to  sever Count 19 as an abuse of discretion, arguing that

the  inclusion of  his  prior felony  history  resulted in  clear

prejudice  and  denied him  a fair  trial.   Appellant  moved for

severance under Fed. R. Crim P. 14, which provides, in part, that

if  it  appears  a defendant  may  be  prejudiced  by joinder  of

offenses,  the court may "order an election of separate trials of

counts, grant a severance of defendants or provide whatever other

                    

22  In addition to Haskins'  testimony, the Government introduced
into  evidence  a  certified copy  of  the  records  of the  FDIC
establishing  that  after  a  diligent  search  of  the  agency's
records,  no evidence  was found  to indicate  that  First N.H.'s
insured  status was ever terminated on  or before the date of the
September  9,   1991,  robbery.    Further,   Haskins'  testimony
regarding First  N.H.'s interstate accounts was  augmented by the
testimony of  another bank employee,  Anita Ramsdell, who  was in
charge  of   opening  new   accounts,  teller  supervision,   and
maintenance of the bank  vault.  According to Ramsdell,  the bank
sold vault money to the Federal Reserve Bank of Boston and on the
morning of the  robbery, the  vault contained a  large amount  of
money that was about to be shipped there.

                               -39-

relief  justice  requires . . . . "    Trial  courts are  granted

discretion  under  Rule 14  to  take whatever  steps  are  deemed

necessary  to  minimize  prejudice;  "[s]everance   is  only  one

remedy -- and   certainly  the  most  extreme -- in  the  federal

courts'  remedial arsenal."   United States v.  Daniels, 770 F.2d
                                                       

1111, 1120 (D.C. Cir. 1985).

          Here  the record  indicates that  in ruling  on Flynn's

motion  on the first day  of trial, the  court declined severance

but  decided  not  to  disclose  the  details  of  Flynn's  prior

conviction(s) in reading Count  19 to the jury.   Flynn's counsel

later indicated that  he would  stipulate to his  client being  a

convicted  felon and stipulate that the  court could instruct the

jury in that regard.  In its final instructions to  the jury, the

court  indicated that the parties  had stipulated to  the fact of

the  prior conviction(s),  without  detailing the  nature of  the

criminal acts at issue in them. The Court finds that the district

court did not abuse its discretion in deciding not to sever Count

19 and  in opting  instead to  limit the jury's  exposure to  the

details of Flynn's prior criminal history.

     D.  Statements Made During Prosecutor's Closing Argument
                                                             

          Appellant asserts  that the Government  prosecutor made

improper  comments  during  his  closing  argument  in  which  he

allegedly  injected his  personal opinion  and referred  to facts

outside  the  record  regarding  the truthfulness  of  Government

witnesses.   This Court  has long held that  a prosecutor may not

place the prestige of  the government behind a witness  by making

                               -40-

personal assurances  about the witness' credibility  nor indicate

that  facts not before the jury support the testimony. See, e.g.,
                                                                

United States  v. Martin, 815  F.2d 818, 821-22  (1st Cir. 1987),
                        

cert. denied, 484  U.S. 825  (1987); United States  v. Rosa,  705
                                                           

F.2d  1375,  1379-80  (1st  Cir. 1983).    Appellant specifically

points  to the  following  comments to  support  his argument  of

prosecutorial misconduct:

            Comment 1:   Much  comment has  been made
                     
            about deals.   It would seem to me that a
            17-year stretch in prison isn't much of a
            deal.

            Comment 2:  Believe me.  Richard Ferguson
                      
            remembers what  he  remembers.   So  does
            Arthur Cosgro.  So does Tom McQueeny.  So
            does Brian Raineri.   So do all the other
            witnesses  in the  case.   Sometimes they
            don't match with  each other.   Sometimes
            they don't match with other people at the
            offenses.    And  that's  fine.   They're
            telling  what they remember.  These guys,
            as somebody said,  are not great abstract
            thinkers.   I think  we can all  agree to
            that . . . . Which is  it? . . . . Do  we
            know?  No, we don't know.  We  can choose
            to believe which of those  is accurate or
            who remembers better.

            Comment 3:  These people believe, rightly
                      
            or wrongly that they might have had  some
            criminal exposure.   Even if they  did, I
            think we can all agree  its substantially
            less than the individuals who are charged
            with the crimes in this indictment.

          Comment  2  was  not  the  subject  of  contemporaneous

objection and will  be treated  first.  Absent  plain error,  the

failure  to  object during  the prosecutor's  argument forecloses

appellate review.   United States v.  Morales-Cartagena, 987 F.2d
                                                       

849,  854  (1st  Cir. 1993)(stating  that   plain-error  standard

                               -41-

requires  reversal  of a  conviction  only if  a  "miscarriage of
                                             

justice would otherwise result").  This Court does not find plain

error.  Other than the phrase, "Believe me,"  which appears to be

an expression of personal  opinion only if read out  of the total

context, the  prosecutor's comment does not  improperly vouch for

the  credibility of  Government  witnesses.   The comment  merely

points out that the witnesses, telling the story as they remember

it,  have generated a number of inconsistencies in the record and

that it is up to jury to resolve these issues.23

          The Court  finds likewise  that comment 1  falls within

permissible boundaries.   When  read in  context, the  phrase "it

seems  to  me"  does not  amount  to  improper  vouching for  the

credibility  of  a  Government  witness because  the  comment  is

limited to the terms  of the plea agreement.  "It is not error to

inform a  jury of  the contents  of a plea  agreement, nor  is it

improper  for  the government  to  call attention  to  a witness'

motivation for testifying."   United States v. Dockray,  943 F.2d
                                                      

152, 156  (1st Cir. 1991).24   Especially here, where  the record

                    

23  Even if a contemporaneous objection had  been made, comment 2
still does  not rise to error sufficient  to warrant a new trial.
See, e.g., United States v. Rodr guez-Estrada,  877 F.2d 153 (1st
                                             
Cir. 1989)(where prosecutor explicitly  assured jury that witness
would   tell  truth,   error  not   reversible  because   it  was
counterbalanced by other statements  of prosecutor telling jurors
there was conflicting evidence on  issues testified to by witness
and reminded jury that they  should determine issues of  demeanor
and credibility).

24  Appellant suggests that  this comment misrepresented the plea
agreement  of Arthur  Cosgro, who  testified that  the Government
promised  to recommend  eight  years at  sentencing.   This Court
agrees
with the Government, however,  that the comment actually referred

                               -42-

indicates  that  defense counsel  focused  much  of their  cross-

examination and closing arguments on  the benefits to be bestowed

on cooperating co-conspirators,  the comment  that "a  seventeen-

year  stretch in prison isn't much of  a deal" does not amount to

prosecutorial misconduct.  See Martin,  815 F.2d at 822  (finding
                                     

no prosecutorial misconduct where  prosecutor told jury that each

of  the  Government  witnesses  expects  to go  to  jail;  "[t]he

Government is  going to  recommend substantial jail,  the maximum

penalty is  five years, and even with  good time off, five years,

four  years  in a  Federal Penitentiary,  that's  no walk  in the

park").

          Appellant  argues   that  in  making   comment  3,  the

prosecutor  improperly  interjected  his  personal  opinion  that

Appellant was guilty and asserted that all  other trial witnesses

agreed   with   the   Government's   assessment.      Appellant's

interpretation  of comment 3 is far-fetched.  The most this Court

can glean from the  comment is that (1) the  Government witnesses

were  motivated  to testify,  at least  in  part, because  of the

prospect of  criminal prosecution and that  (2) their involvement

in the conspiracy, as disclosed by their testimony, when compared

with the  conduct alleged  against defendants in  the indictment,

indicated that  the witnesses were less  culpable than defendants

in the overall conspiracy.  This comment  is proper argumentation

based on  the evidence  before the  jury and  does not amount  to

                    

to the plea agreement of Richard Ferguson, who testified that the
prosecution would recommend seventeen years.

                               -43-

improper vouching for the credibility of witnesses or a  personal

opinion as to the guilt of the defendants.

          Finding  no evidence  of  prosecutorial misconduct,  we

need not reach the issue of whether the comments in question were

likely  to have prejudiced  Appellant by altering  the outcome of

the  case.  United States v. Rodr guez-Estrada, 877 F.2d 153, 159
                                              

(1st Cir. 1989).

            V.  CHALLENGES RAISED SEPARATELY BY KENNEY
                                                      

           A.  The Court's Denial of Motion to Dismiss
                                                      
        Indictment Under Interstate Agreement on Detainers
                                                          

          Appellant Kenney argues that  the district court  erred

in  refusing  to  dismiss  his indictment  under  the  Interstate

Agreement on Detainers Act,    2, Art. IV, 18 U.S.C.  App. ("IAD"

or  "Act").   The  IAD  establishes  procedures for  transfer  of

prisoners  incarcerated  in  one  jurisdiction  to the  temporary

custody  of  another  jurisdiction  where  criminal  charges  are

pending.  It

sets  time  limits for  trying  prisoners  transferred under  its

provisions, with the purpose  of encouraging the "expeditious and

orderly disposition" of outstanding charges. IAD, Art. I.  

          Kenney  argues  that the  indictment  should  have been

dismissed based on the following violations of the IAD:

            Violation of Art.  IV(a), which  provides
                                    
            for a thirty-day period "after receipt by
            the  appropriate  authorities before  the
            request   [for   temporary  custody]   be
            honored, within which period the Governor
            of the sending  State may disapprove  the
            request   for    temporary   custody   or
            availability, either upon his  own motion
            or upon motion of the prisoner";

                               -44-

            Violation of Art. IV(d),  which indicates
                                   
            that the Act does not deprive a  prisoner
            of any  right to contest the  legality of
            his extradition to the receiving state;

            Violation of Art.  IV(c), which  provides
                                    
            that "trial shall be commenced within one
            hundred and twenty days of the arrival of
            the prisoner in the receiving  State, but
            for good  cause shown in open  court, the
            prisoner  or  his counsel  being present,
            the  court  having  jurisdiction  of  the
            matter   may   grant  any   necessary  or
            reasonable continuance."

Kenney  failed to raise  Articles IV(a) and IV(d)  as a basis for

his motion to dismiss below; hence, he has waived those arguments

pursuant to Fed. R. Crim P.  12(b) and 12(f).  We have considered

whether these  claims constitute  plain error and  have concluded

that they do not.

          Kenney did raise  Art. IV(c) on several  occasions as a

basis for  objecting to  motions  for continuances  filed by  co-

defendants and ultimately in a  motion to dismiss his indictment,

arguing that the  court failed to try him within  120 days of his

appearance  in the  jurisdiction of  New Hampshire.    Kenney was

brought to  the District  of New  Hampshire on  May 7, 1992,  and

trial, pursuant  to a strict application of the 120-day deadline,

should have commenced on September 8, 1992.25  

          In  denying  Kenney's  motion  to  dismiss,  the  judge

indicated  that continuing  the  trial until  October  5 did  not

violate the  120-day provision because the clock  had been tolled

for twenty-eight  days, from  August 4  through August  31, 1992,

                    

25  September 5, 1992,  was exactly 120 days, but that  date fell
on a holiday weekend.

                               -45-

while  the magistrate  judge resolved  pretrial motions  filed by

Kenney.  The  judge also  ruled that delays  attributable to  the

disposition of motions  filed by other co-defendants  constituted

"good  cause" under  the  IAD and  were  also excluded  from  the

computation.

          This Court has recently  suggested that delay caused by

a court's resolution of  pending co-defendant motions may qualify
                                                         

as excludible time under  Article IV(c) of the IAD  which states,

"for  good cause  shown in  open court . . . the  court . . . may

grant any necessary or reasonable continuance."  Whiting v. U.S.,
                                                                

No. 92-1182, slip op. at 29-30 (1st Cir. July 6, 1994).  However,

the facts of  this case allow us to affirm  the court's denial of

Kenney's motion to dismiss on a narrower ground; i.e., that delay
                                                     

attributable  to   the  disposition  of  motions   filed  by  the

defendant, himself, is excludible from the 120-day computation.

          Art. VI(a) of the  IAD provides that the  120-day clock

"shall be  tolled whenever and  for as  long as  the prisoner  is

unable to  stand trial."   This  Court has  generally interpreted

this provision to allow for tolling during the time that it takes

for the  court to resolve matters raised  by the defendant who is

claiming rights under the IAD.  Whiting, No. 92-1182, slip op. at
                                       

27-28;  United States v. Walker, 924 F.2d 1, 5-6 (1st Cir. 1991),
                               

United  States v. Taylor,  861 F.2d 316,  321-22 (1st Cir. 1988).
                        

We have held out the possibility, however, that where a defendant

timely advises the court  that he or she is  claiming protections

under the  IAD and the court takes more time than is necessary to
                  

                               -46-

resolve the defendant's pretrial motions, then the delay may  not

be fully excluded from the 120-day clock.

          In this case, Kenney first informed the court on June 5

that he refused to waive any rights under the IAD  in response to

a Government  motion relating  to bail.   On  August 4,  he filed

seven  pretrial motions but did not  refer to his reliance on the

IAD  to  notify the  magistrate that  an expedited  decision was,

perhaps, warranted.  The Government submitted responses on August

14, and the magistrate ruled on the motions on August 31.  Kenney

informed the court that  he was specifically relying on  the 120-

day trial provision on  September 1, when he filed  objections to

motions by co-defendants seeking a continuance of the trial date.

          In these  circumstances, the Court finds  that a 28-day

delay in  resolving defendant's own motions  was not unreasonable

and that after excluding this delay, trial was properly commenced

within  the  120-day  deadline.26   Accordingly,  we  affirm  the

district  court's  denial  of  Kenney's  motion  to  dismiss  his

indictment.  

B.  The Court's Admission into Evidence of Semi-Automatic Handgun
                                                                 

          Appellant Kenney challenges the court's  admission into

evidence of  Government exhibit 42, a  .32 caliber semi-automatic

handgun.  Specifically, Kenney  argues that the Government failed

to  introduce sufficient evidence that  (1) the gun  had not been

                    

26  According to  this Court's calculations, the  120-day period,
excluding the twenty-eight-day delay occasioned by defendant, ran
on October  3, 1992, which  was a Saturday.   Trial was  properly
commenced on the first day of the business week, October 5, 1992.

                               -47-

altered subsequent to the  crime and (2)  the gun was the  actual

gun used  in the crimes  in question.   We need  not belabor  the

point because we find that  the district court did not abuse  its

discretion in admitting the handgun.

          Federal  Rule of  Evidence  901(a) requires  the  trial

court to  determine if there  is a "reasonable  probability" that

the evidence is what it is purported to be.   Evidence before the

court indicated  that the  gun had  been stored  in a  garage for

thirteen  days.   Even though the  garage was  used as  a storage

facility by  several people, testimony at trial  indicated that a

co-conspirator's relative  retrieved  the handgun  from the  same

place that it had been left by Kenney and Flynn.  Considering the

nature    of   the   handgun,   circumstances   surrounding   its

preservation,  and  the  scant likelihood  of  intermeddlers, the

judge properly determined that  it was in substantially the  same

condition.

          The  trial court also  did not abuse  its discretion in

determining  that there  was  a reasonable  probability that  the

handgun  was the  same  gun used  in the  robberies.   Three  co-

conspirators  identified  the  handgun,  and  a  co-conspirator's

relative identified the case  in which the handgun was  found and

testified that she  heard Flynn tell Kenney  to hide the case  in

the garage.  In addition, testimony by witnesses to the robberies

described a gun matching the Government's exhibit.

                               -48-

        VI.  SEPARATE CHALLENGES RAISED BY APPELLANT NEAL
                                                         

      A.  Sufficiency of Evidence to Support Guilty Verdict 
                                                            
 on Counts Alleging Accessory After The Fact and Money Laundering
                                                                 

          Appellant  Neal  challenges  the  sufficiency   of  the

evidence  in support of the  jury's guilty verdicts  on Counts 30

and 31.27   This Court  finds that  the evidence,  viewed in  the

light  most  favorable  to  the  Government,  together  with  all

legitimate inferences,  was of such  a quantum that  a reasonable
                                              

trier of fact could find Neal guilty beyond a reasonable doubt on

both counts.28  United  States v. Browne, 891 F.2d  389, 393 (1st
                                        

                    

27  Count 30,  alleging accessory after the fact in  violation of
title 18 U.S.C.    3, requires  proof beyond  a reasonable  doubt
that a defendant (1)  knew an offense had been  committed against
the  United  States; and  (2)  "receives,  relieves, comforts  or
assists   the  offender  in  order   to  hinder  or  prevent  his
apprehension, trial or punishment . . . ." 

   Count 31,  alleging money laundering in violation  of title 18
U.S.C.    1956(a)(1)(B)(i), requires  proof  beyond a  reasonable
doubt that a defendant knew that:

            the  property  involved  in  a  financial
            transaction  represents  the proceeds  of
            some  form  of  unlawful  activity  [and]
            conducts  such  a  financial  transaction
            which  in fact  involves the  proceeds of
            specified unlawful activity, knowing that
            the transaction  is designed in  whole or
            in  part,  to  conceal  or  disguise  the
            nature,  the  location,  the source,  the
            ownership, or the control of the proceeds
            of specified unlawful activity . . . .

28  The evidence consisted, in part, of testimony indicating that
Neal  was at his  home on several  occasions when co-conspirators
met  to discuss the bank  robbery and to  make final preparations
for  committing the  crime.   The co-conspirators took  refuge in
Neal's home  immediately following the robbery  with a reasonable
inference from the  testimony being that  Neal opened his  cellar
door to  let them in.  Neal  followed Flynn's instructions to "go
out and get the box of money"  out of the car, with the box  also
containing the gun used in the  robbery.  Tr. (October 14,  1992)

                               -49-

Cir. 1989).  

                 B.  Court's Denial of Motion for
                                                 
            Downward Adjustment of Base Offense Level
                                                     

          Neal  challenges  the  district court's  denial  of his

motion  for  a downward  adjustment  of  his Base  Offense  Level

pursuant  to  section  3B1.2(a)  of  the  Sentencing  Guidelines.

U.S.S.G.   3B1.2(a).  That section of the Guidelines provides for

a  four-level  reduction  where   the  court  determines  that  a

defendant was a minimal  participant in the offense for  which he

was  convicted and is intended to cover only those defendants who

are  clearly the least culpable of those involved in the criminal

conduct  of the group.  See  U.S.S.G.   3B1.2(a), comment nn. 1 &amp;
                           

2.   Absent a  mistake of law,  a district court's  finding as to

whether  a defendant was a  minor or minimal  participant will be

reversed only if clearly  erroneous.  United States v.  Brum, 948
                                                            

F.2d 817 (1st Cir. 1991).

          Here,  the   court's  determination  was   not  clearly

erroneous and we affirm.   Neal mistakenly refers to  the overall

conspiracy  encompassing  five  robberies as  the  benchmark  for

arguing that he played a minimal role.  But section 3B1.2 focuses

on  the role  of a  defendant with respect  to the  offense(s) of
                                                                 

                    

at 40.  Neal was given  between $2000-$5000 as his split from the
proceeds  of  the  robbery.    Flynn  later  furnished  him  with
additional  money from the robbery to pay off hundreds of dollars
in parking tickets  and to purchase a car in his  name to be used
by  Flynn  and  Kenney to  drive  to  Arizona  and eventually  to
California.  A friend of Neal's testified that he told her he had
won the money  used to purchase  the car by  betting on  football
games and had purchased  the car with the intention  of letting a
friend use it for a week or so.

                               -50-

which  he was  convicted.   Here,  Neal  was convicted  of  money
                        

laundering and being  an accessory  after the fact.   He was  the

only  defendant indicted and convicted  on the count  of being an

accessory  after the fact and  was indicted and convicted jointly

with Flynn on the money laundering  count.  The facts support the

court's  determination that Neal did not play a minimal role with

respect to the conduct alleged in either count.

                         VII.  CONCLUSION
                                         

          Accordingly,  the Court  affirms  the district  court's

rulings on all issues raised on appeal except the issue raised by
                                             

Appellant Flynn  regarding the court's denial  of various motions

for production of witness statements under the Jencks Act and the

issue raised  by Appellant  Neal regarding  the court's order  of

restitution against  him.  We will  retain appellate jurisdiction

to  enable  us to  review the  augmented  record and  the court's

subsequent  determinations  on  the Jencks  Act  and  restitution

claims.

          With respect to Appellant Flynn's challenge,  we remand

the  case  for  an   evidentiary  hearing  to  determine  whether

statements  were improperly  withheld  from him  during trial  in

violation  of the Jencks Act and, if so, whether nondisclosure of

such  statements constituted  harmless  error.   With respect  to

Appellant  Neal's challenge, we remand the case so that the court

may determine  whether the  full amount  of  damages suffered  by

First  N.H.  was  caused   by  the  criminal  conduct  underlying

Appellant's  convictions  for  money  laundering  and  being   an

                               -51-

accessory after the fact.   The court should report  its findings

and  determinations back to us within ninety  (90) days.  We will

retain appellate jurisdiction for the time being.

          It is so ordered.
                          

                               -52-

           APPENDIX I:  LISTING OF JENCKS ACT RULINGS 
                                                     
                   TO BE RECONSIDERED ON REMAND
                                               

          Below find  examples where the court  indicated that it

was denying  Jencks Act requests on the  ground that there was no

showing  that the  witness had  seen and  adopted the  statements

pursuant to 18  U.S.C.   3500 (e)(1).   The court failed to  make

the  further inquiry,  pursuant to  18 U.S.C.    3500 (e)(2),  of

whether  the notes  or  interview reports  of government  agents,

requested    by   counsel,   contained   statements   that   were

substantially verbatim recitals  of a witness'  prior statements.

Rulings  made pursuant  to  this erroneous  standard include  the

following:  

(1)  After  the Government  conducted direct  examination on
     Anita Ramsdell,  a teller  at  First N.H.,  Appellant's
     counsel requested all  Jencks material on the  witness.
     The court indicated:

          I   looked  at   it  and   it's  not   Jencks
          material. . . . But I can't really rule on it
          at  this point  until somebody  asks her  the
          question if she's ever seen it.

     Tr.   (October  9, 1992)  at 6.    Cross-examination by
     Appellant's  counsel indicated that  an FBI  agent took
     notes for a half hour  to forty-five minutes while  the
     witness was  being questioned  by a detective  from the
     Stratham  police department  but she  further testified
     that  she never saw  the notes.   Id. at 34-37.   It is
                                          
     presumably on this  basis, that witness Anita  Ramsdell
     never  saw or adopted the notes,  that the court denied
     counsel's Jencks request.  

(2)  While   Appellant's   counsel  was   conducting  cross-
     examination upon Richard Ferguson, a co-conspirator who
     pled  guilty  and   cooperated  with  the   Government,
     Ferguson   testified  that   he  met   with  Government
     attorneys Patrick  Walsh and  Robert Veiga and  someone
     from the FBI  on at least  two different occasions  and
     that Walsh  was probably  taking notes.   Counsel asked
     for a sidebar:

                               -53-

          Counsel:   There  are  four to  six hours  of
          statements that someone took  notes on. . . .
          I  would  suggest  that there  must  be  some
          Jencks material . . . .

          Court:    So  far  I can't  agree  with  you,
          counsel, but your objection is noted.

     Tr. (October 14, 1992) at 140.

     On further cross-examination  of Ferguson, he testified
     that  Government  attorney  Walsh  went over  the  same
     things  with  him in  the  second  interview that  were
     covered in  the first  interview.  Counsel  again asked
     for  a  sidebar requesting  that  the  court order  the
     Government  to  turn  over  materials  from  the  first
     interview based on the  witness' testimony that he went
     over these materials with the Government attorney:

          Government:  Your Honor,  it is not.  I  mean
          all he  said so far is  that -- as I remember
          his  testimony -- is  that he  went  over the
          same things in each interview.

          Court:   That is  my  understanding, but  the
          objection of the defense is noted.

          Counsel:     Your   Honor,  wait   a  minute.
          Unfortunately I must admit I don't understand
          what's  going on  here,  but I  am trying  to
          figure it out.   Am I  to understand that  at
          some point  is work product  being interposed
          here  for the basis of why we are not getting
          these materials? 
          . . . .
          Counsel:   The reason  is that you  have been
          given  documents which you have reviewed, and
          within those  documents somehow he  has never
          adopted  them,  so that's  why  we don't  get
          them?

          Court:  The  record before me is that  he has
          never adopted those documents.
           . . . . 
          Court:   If I  am wrong  I will  be reversed.
          Your objection is noted.
          . . . .
          Counsel:   I want the record  to reflect that
          in my  opinion what I now  understand is that
          this  is a  very clever  manipulation of  the
          rules by the United States Government in  the
          District  of  New  Hampshire  to  avoid  ever

                               -54-

          giving Jencks material, because what we do is
          if we never ask the witness to adopt it, that
          if there is no  steno present, we can clearly
          say there is not Jencks material . . . .

     Tr.  (October 14, 1992) at 152-53.

(3)  The  court  denied  production of  Jencks  material  on
     witness  Linda Sherouse  who worked  at the  Dress Barn
     retail store and was victim of a night deposit robbery.
     When Sherouse was testifying on direct examination with
     respect to  the gun used  by the robber,  counsel asked
     for a side bar:

          Counsel:   Now  I'd  like to  know where  her
          Jencks  material is.  Where's her statements?
          Where's  a description  of this?   Where's  a
          prior statement  of this  or  why hasn't  she
          been shown this?

          Government:  She gave a statement at the time
          of  the  incident to  the  local authorities,
          which was Hampton  Police Department I guess.
          But there  has been  no Jencks  material with
          respect to that.
          . . . .
          Court:  Why don't  you give him the statement
          she made to the Hampton cops.

          Government:   She  hasn't  reviewed it.   She
          hasn't reviewed it.  It's not Jencks.

          Court:  Can I review it?

          Government:  Sure, certainly.
          . . . .
          Court:  For the  record, I have reviewed them
          and I  don't think  there's either  Jencks or
          Brady material in them.

     Tr.  (October 27, 1992 -- Afternoon session) at 86-88.

(4)  Other  examples  where  the  court  may  have  used  an
     erroneous  legal  ground  in  denying  Jencks  requests
     include  a  request  for  Jencks  material  on  Douglas
     Scamman.   Scamman  is  a dairy  farmer who  identified
     Appellant  Flynn in court as one of several men whom he
     observed on  various occasions  loitering near a  field
     that was allegedly used  by the armed robbers  to reach
     and  escape from First N.H.  Counsel asked the court to
     order  production  of  Jencks  or  Brady  material with
     respect  to statements  made by  Scamman that  might be

                               -55-

     included in a report  filed by a Sergeant Forbes.   The
     court denied  the request.   Tr. (October 19,  1992) at
     171-73.  

     The  court  also  denied   a  Jencks  Act  request  for
     statements made  by  co-conspirator Arthur  Cosgro  who
     cooperated with the Government.  Counsel indicated that
     he had been given no materials that would shed light on
     testimony  by  Cosgro  with  respect  to  a  particular
     conversation that he had with Appellant Flynn.  Counsel
     questioned  whether the  basis of the  statement should
     have been  disclosed in  his Jencks  Act request.   Tr.
     (October 20, 1992) at 73-77.

     The  court   denied  Jencks   Act  requests   on  prior
     statements contained in reports of interviews with  co-
     conspirators Thomas  McQueeney and Brian  Raineri, both
     of whom cooperated with the Government.   It is unclear
     whether  an erroneous  legal ground  was used  in these
     denials.    Tr.  (October  28,  1992)  at  20  and  Tr.
     (November 3, 1992) at 219-20.

                               -56-
