
USCA1 Opinion

	




          March 26, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        _____          No. 92-1358                                    UNITED STATES                                       Appellee,                                          v.                                 GEORGE CHAPDELAINE,                                Defendant, Appellant.                                     ___________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  March 25,  1993, is          amended as follows:               On page  5, line 8  of first  full paragraph: replace  "  1"          with "  2113(a)".               On  page  5, line  10 of  first  full paragraph:  insert "a"          between  "transporting  and  "stolen"   and  delete  the  "s"  in          "vehicles".               On  page 7, line 3  of first full  paragraph: capitalize the          "c" in "1st cir."               On page 8, line 3: replace "37" with "39".          March 25, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1358                                    UNITED STATES,                                      Appellee,                                          v.                                 GEORGE CHAPDELAINE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                                 ____________________            Louis F. Robbio with whom Robbio & Nottie,  Ltd. was on brief  for            _______________           _____________________        appellant.            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Lincoln  C.  Almond, United  States  Attorney,  and James  H.  Leavey,        ___________________                                 _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    March 25, 1993                                 ____________________                 BOUDIN,  Circuit  Judge.    George  Chapdelaine  appeals                          ______________            following his conviction for numerous offenses arising out of            the planned robbery  of a  Wells Fargo truck  by himself  and            others  at  the  Emerald  Square  Mall  in  North  Attleboro,            Massachusetts.  The  plan was frustrated when  the truck left            the location  earlier than usual.   Chapdelaine was convicted            after trial while his accomplices pled.  We affirm.                                        I.  THE EVENTS                 Acting on  an informant's tip, federal  agents and state            and local police on  March 3, 1991, followed  Chapdelaine and            Anthony Fiore  to  a meeting  with  Edward Mahan  and  George            Whalen in  Walpole, Massachusetts.1   The next day,  March 4,            Chapdelaine,  Fiore, and  Mahan  drove Mahan's  vehicle to  a            parking lot in Canton, Massachusetts.   When they left, Fiore            was driving  a Wagoneer jeep  later reported stolen  from the            lot.   The  Wagoneer  was  taken  to  a  garage  in  Walpole,            outfitted with a false registration plate, and then driven by            Fiore  (accompanied  by  Chapdelaine  in another  car)  to  a            parking lot in North  Providence, Rhode Island, where  it was            left.   Fiore  later lodged  a stolen  Jaguar in  a different            parking lot in Warwick, Rhode Island.                 On March  25, Chapdelaine and Fiore  arrived in separate            vehicles  at  the Emerald  Square  Mall  in North  Attleboro,                                            ____________________                 1Several  law enforcement  officers who  participated in            surveillance  of  the four  men  testified  at  trial to  the            group's activities.                                         -2-                                         -2-            Massachusetts.   There, Fiore got into  Chapdelaine's car and            the two  drove around the mall  before leaving.   A few hours            later,  the two men returned to the mall in Fiore's Plymouth,            this  time accompanied by Mahan and Whalen.  The Plymouth was            parked  near a BayBank branch  bank located in  the mall, and            Fiore and Mahan watched a Wells Fargo  truck as it arrived at            the bank and was loaded by a guard.  The following day, March            26, Fiore returned alone to the mall, spent a short period of            time, and then left without having made any purchases.                 The next day, March 27, Chapdelaine and Fiore drove to a            department store parking lot in Taunton, Massachusetts, where            they  remained in  their car  as the  same Wells  Fargo truck            which served the  Emerald Mall BayBank  arrived to serve  the            department store.   When the  truck crossed the  street to  a            nearby  bank, Chapdelaine and Fiore moved their car to a spot            closer  to the bank.  After the  truck left the bank, the two            men drove back to  the Emerald Mall parking lot  before going            home.  They returned the following day, March 28, to the  lot            in  Taunton, where they again  waited in their  car until the            Wells Fargo truck arrived and departed.                 The next  morning, March 29, Chapdelaine  and Fiore made            another brief visit  to the Emerald  Mall parking lot  before            proceeding to a  parking lot in Cumberland,  Rhode Island, to            drop off the stolen Jaguar.   They then picked up  the stolen            Wagoneer,  now  in Fiore's  garage  and  bearing yet  another                                         -3-                                         -3-            registration  plate,  and drove  it  to  the Cumberland  lot.            Later  all  four  men met  at  the  Cumberland  lot.   There,            Chapdelaine  opened the  trunk  of his  car,  put on  gloves,            handed another pair of gloves to Whalen, and removed from the            trunk  a green  laundry  bag which  was  then placed  in  the            Wagoneer.   The  group  then drove  the  stolen vehicles  and            Fiore's Plymouth to the Emerald Mall parking lot.  As the men            entered the mall lot  at 1:27 p.m., they  were passed by  the            Wells  Fargo truck on its way out; the truck's normal arrival            time at the  mall was 2  p.m. but this  was Good Friday,  and            several of the truck's usual stops were closed.  The four men            pulled  into  a parking  garage,  remained  there for  a  few            minutes,  and  then  drove  back  to  the  staging  area   in            Cumberland.                 In Cumberland,  all four  were arrested.   The Wagoneer,            which Chapdelaine was then driving, had to be turned off with            a screwdriver because the steering column was pulled back and            there was no key in the ignition.  A subsequent search of the            vehicles  turned  up the  green laundry  bag (now  in Fiore's            Plymouth) which  was found  to contain firearms  (including a            .357 Magnum with an obliterated serial number), ammunition, a            make-up kit, a black wig and a washcloth.  Other items seized            from   the  vehicles  included   gloves,  several  pieces  of            clothing, a  make-up removal kit,  and a  police scanner  and            radio  guidebook.     Later   that  day,   in  a  search   of                                         -4-                                         -4-            Chapdelaine's home in Woonsocket, Rhode  Island, agents found            five .357-caliber  bullets in his bedroom  closet and $22,000            in cash under his bed.                 All four men were indicted.  Fiore and Mahan pled guilty            prior to  trial.2   Whalen, tried together  with Chapdelaine,            entered  a  guilty  plea  shortly  before  the  close of  the            government's case.   Chapdelaine was convicted  of conspiracy            under 18  U.S.C.   371 to rob a federally insured bank and to            commit  four  other,  related  offenses;  of  two  Hobbs  Act            violations,  18  U.S.C.     1951;  of  attempting  to  rob  a            federally insured  bank, 18  U.S.C.   2113(a);  of using  and            carrying firearms  during a  crime of  violence, 18  U.S.C.              924(c)(1);  of transporting  a stolen  vehicle in  interstate            commerce,  18 U.S.C.     2312; and  of four  firearms-related            offenses, 18 U.S.C.   922.    After trial, the district court            vacated the conviction  on one of the firearms counts because            Chapdelaine's name  had been inadvertently  omitted from that            count  in a  superseding indictment  used at  trial.   On all            counts  but one,  Chapdelaine  was  sentenced  to  concurrent            sentences, the longest being  78 months' imprisonment; on the            conviction for carrying a firearm during a crime of violence,            the court imposed  the five-year consecutive prison  sentence            made mandatory by 18 U.S.C.   924(c).  This appeal followed.                                            ____________________                 2Fiore's appeal  from his  sentence has  been previously            decided. United States v. Fiore, 983 F.2d 1 (1st Cir. 1992).                     _____________    _____                                         -5-                                         -5-                                         -6-                                         -6-                                    II.  THE TRIAL                 Publicity   and  Jury  Prejudice.     Chapdelaine  first                 ________________________________            contends  that  the  district  court  erred  in  denying  his            informal  motion  for  a  change  of  venue  on  grounds   of            prejudicial pretrial publicity.   As evidence of  prejudicial            coverage, Chapdelaine  points to  articles in  the Providence                                                               __________            Journal newspaper and to  local television coverage, which he            _______            says was  inflammatory.  Since Chapdelaine  does not describe            the content  of the television  reports, nor allege  that the            reports were seen by any of the jurors, we have  no basis for            evaluating his complaint about televised coverage.                 As for the newspaper  articles, they are largely factual            accounts of the arrests of the four men and subsequent guilty            pleas  of Fiore  and Mahan.3   On  the day  trial began,  the            district judge questioned each  of the jurors and alternates,            who  had  been  empaneled  two months  before,  to  determine            whether they had discussed the case, been  approached or read            or heard anything  about it.  Only four of  the panel, two of            whom  ultimately  deliberated, answered  in  the affirmative;            each had  been  exposed to  a  November 20,  1991  Providence                                                               __________            Journal  article indicating  that two  of the  defendants had            _______            pleaded guilty before trial.   All four of the  panel members                                            ____________________                 3One  of  the  articles  mentions   Chapdelaine's  prior            conviction  for cocaine trafficking  and an informant's claim            that  Chapdelaine and Fiore had earlier  tried to rob another            armored  car.  There is no indication that any juror saw this            article or knew these supposed facts.                                         -7-                                         -7-            affirmed that  they could be impartial.   Neither Chapdelaine            nor Whalen challenged any of the four for cause.                 There  is no  basis  on this  record  for any  claim  of            "widespread, highly inflammatory  publicity."  United  States                                                           ______________            v.  Moreno  Morales, 815  F.2d  725,  734 (1st  Cir.),  cert.                _______________                                     _____            denied, 484 U.S. 966 (1987).  The only issue is whether juror            ______            knowledge of guilty pleas  by co-defendants is information so            searing that failure to  excuse the juror for cause  is plain            error, even though  the trial  judge found the  jurors to  be            impartial.   The voir dire did not in this instance reflect a            "pattern  of deep and  bitter prejudice," Irwin  v. Dowd, 366                                                      _____     ____            U.S. 717,  726 (1961), compelling  the court to  override the            juror's claim of impartiality.  We do not think juror bias is            inherent  in  the knowledge  that  a  co-defendant has  pled.            Hines v. United States,  131 F.2d 971, 974 (10th  Cir. 1942).            _____    _____________            Cf.  Murphy v. Florida, 421  U.S. 794 (1975) (juror knowledge            __   ______    _______            of defendant's prior convictions).                 There is  even less  basis  for Chapdelaine's  complaint            that  some  of  the  seated  jurors   had  relatives  in  law            enforcement  or   were  familiar  with  some   of  the  trial            participants or their families.   Chapdelaine was entitled to            challenge jurors for cause or to  argue on appeal that it was            plain error not to excuse a juror.  But here no specifics are            offered in his brief, so there is no error to assess.  As for            the claim that  trial counsel was  ineffective in failing  to                                         -8-                                         -8-            challenge jurors, that issue  is not normally open  on direct            appeal  and must  await a  collateral attack,  if Chapdelaine            chooses to make one.   See United States v. Arango-Echeberry,                                   ___ _____________    ________________            927 F.2d 35, 39 ((1st Cir. 1991).                  Whalen's Guilty Plea.   As the government was completing                 ____________________            the presentation of its case, Whalen pled guilty (outside the            presence  of the  jury) and  withdrew from  the trial.   This            prompted a  motion for  mistrial from Chapdelaine,  which the            district court denied.  Chapdelaine's position  then, renewed            now, was that the  jury would conclude from  Whalen's absence            that  he had pled guilty and would draw the further inference            that  Chapdelaine, as  an  alleged  co-conspirator,  must  be            guilty as well.                 We addressed this  issue in United States  v. Del Carmen                                             _____________     __________            Ramirez, 823  F.2d 1 (1st Cir. 1987).   The district court in            _______            that case, faced with the same situation, declined to declare            a mistrial but gave a cautionary instruction to the jury.  We            approved   this  approach,  stating  that  the  court  should            "clearly  and carefully  instruct  the jury  to consider  the            evidence  against  a  particular individual,  alone,  and  to            determine guilt or  innocence on that basis."  Id.  at 3.  In                                                           __            this case, the district court delivered an instruction almost            identical to the one we approved in Del Carmen Ramirez:                                                __________________                         Members of the  Jury, you'll note that                      Mr.  Whalen  is  no  longer   sitting  at                      counsel table and he is no longer a party                      to this  action.  You are  not, I repeat,                                         -9-                                         -9-                      you are not to speculate,  surmise in any                      way whatsoever why he  is not here.  It's                      none  of your concern;  it's not  part of                      your  deliberations;  you  will not  even                      discuss the matter as we go forward.  The                      case stands here with Mr.  Chapdelaine as                      the defendant.  Is anyone going to have a                      problem with that?   If so, speak up now.                      I can't stress to  you the importance  of                      fairness, objectivity, total impartiality                      and I  stress that again and  I stress to                      you  why he is  not here is  none of your                      concern; it  has nothing to do  with your                      deliberations  in this  case  in any  way                      whatsoever.                  Chapdelaine  now says that  the instruction should have            been repeated in the  closing charge to the jury.   At trial,            he made  no such request  and the  failure to do  so was  not            plain error.                  Sufficiency of  the Evidence.   Chapdelaine  next claims                 ____________________________            that  the  evidence  at   trial  was  insufficient  to  prove            conspiracy,   attempted  robbery,   various  firearms-related            offenses, and interstate transportation of a  stolen vehicle.            In   assessing  these   claims,  reasonable   inferences  and            credibility judgments  are taken in the  light most favorable            to  the verdict;  and the  issue is  whether a  rational jury            could  have found  the defendant  guilty beyond  a reasonable            doubt.   United States  v. Batista-Polanco,  927 F.2d  14, 17                     _____________     _______________            (1st Cir. 1991).                  Beginning with  conspiracy,  Chapdelaine says  that  the            evidence did  not prove an intent to commit robbery.  This is            not a serious argument.  The evidence described at the outset                                         -10-                                         -10-            of this  opinion, a  sketch that omits  further incriminating            detail,   could  easily  persuade   a  reasonable  jury  that            Chapdelaine and his associates "cased" the BayBank branch and            the armored truck, positioned  stolen vehicles for an escape,            acquired weapons and disguises, arrived at the scene ready to            commit the  crime and were  frustrated only by  an accidental            change in the truck's schedule.  United States v. Buffington,                                             _____________    __________            815  F.2d 1292 (9th Cir. 1987), where the Ninth Circuit found            the evidence inadequate, involved far less aggravated facts.                 This  same  evidence supported  Chapdelaine's conviction            for attempted robbery.  To prove attempt, the government must            establish both  an intent  to commit the  substantive offense            and  a "substantial  step  towards its  commission,"   United                                                                   ______            States  v. Figueroa,  976 F.2d  1446, 1459  (1st Cir.  1992),            ______     ________            comprising "more  than mere  preparation" but "less  than the            last  act  necessary  before  the actual  commission  of  the            substantive  crime."  United States v. Manley, 632 F.2d  978,                                  _____________    ______            987 (2d.  Cir. 1980),  cert. denied,  449  U.S. 1112  (1981).                                   ____________            Chapdelaine argues  that the  group's actions amounted  to no            more  than mere  preparation because  the defendants  did not            leave their vehicles or make a  move toward the bank.  In Del                                                                      ___            Carmen Ramirez we found that a group's conduct in "casing the            ______________            bank,  stealing a car, and arriving armed at the bank shortly            before the  Wells Fargo truck  was to  arrive" constituted  a            substantial step  toward robbery.  823  F.2d at 2.   See also                                                                 ________                                         -11-                                         -11-            United States v. Johnson,  962 F.2d 1308, 1310-11,  1312 (8th            _____________    _______            Cir.) (same  result under  similar facts), cert.  denied, 113                                                       _____________            S.Ct.  358 (1992).  That describes the activity in this case,            and we have no reason to reach a different result.4                 Turning  to  the firearms-related  offenses, Chapdelaine            was convicted of using  firearms during and in relation  to a            crime  of violence,  possession  of  firearms and  ammunition            after a felony conviction, and interstate transportation of a            firearm with  an obliterated serial  number.  In  addition to            the guns and ammunition recovered from the green laundry bag,            police   also   seized  five   rounds   of  ammunition   from            Chapdelaine's bedroom  closet.  The ammunition recovered from            the closet formed the basis of a separate count.                  Chapdelaine's argument on appeal is two-fold.  First, he            says  that the  evidence  did not  show  that he  "knowingly"            possessed the guns found in the laundry bag because there was            no   proof  that  he  looked  inside  the  bag.    At  trial,            Chapdelaine  testified that  he thought  the bag  contained a            tire  jack and car tools.  Noting  that the bag was recovered            from Fiore's  Plymouth instead  of the  Wagoneer, Chapdelaine                                            ____________________                 4In a  related argument, Chapdelaine  contends that  the            jury  instruction  on  what   is  "a  substantial  step"  was            inadequate.  The objection was not raised at trial and we are            not  told what was wrong with the instruction other than that            "a more complex  and detailed instruction was  required."  We            therefore consider the  claim waived.   See United States  v.                                                    ___ _____________            Zannino,  895 F.2d  1,  17 (1st  Cir.)  (issued raised  in  a            _______            perfunctory manner are deemed waived), cert. denied, 494 U.S.                                                   ____________            1082 (1990).                                         -12-                                         -12-            argues  that the  evidence  did not  exclude the  possibility            that,  unbeknownst to him, guns were substituted for the jack            and tools when the  bag was transferred from the  Wagoneer to            the Plymouth.   In this case,  involving a carefully  planned            armed robbery with abundant weapons,  we think the jury could            reasonably infer that the bag's contents when seized were the            same as when  Chapdelaine handled the  bag hours before,  and            that Chapdelaine knew that the  bag contained firearms.   See                                                                      ___            United States v. Arango-Echeberry, 927 F.2d at 38.            _____________    ________________                 Second, Chapdelaine  argues that the  evidence failed to            prove his "possession" of the firearms in the laundry bag and            the ammunition  found in  his bedroom closet.   Chapdelaine's            handling  of  the  laundry  bag  adequately  established  his            possession of the  weapons within.5   As for  the bullets  in            his  closet, Chapdelaine  emphasizes that  the owners  of the            house where he rented  a room were gun dealers  who testified            to  storing ammunition  throughout  the home.   However,  the            bullets retrieved  from Chapdelaine's closet were  in an area            within  his "dominion  and control."   Further,  they matched            those found  in the  .357 Magnum recovered  from the  laundry            bag.   This was enough to prove that Chapdelaine was at least                                            ____________________                 5As for the question of the guns' use in relation to the            crime,  the  jury  could  readily  have  concluded  that,  by            transferring the guns to the  Wagoneer before setting off for            the mall with the others, Chapdelaine  "intended to have [the            weapons]  available for  possible use  during or  immediately            following" a robbery.  United States v. Payero, 888 F.2d 928,                                   _____________    ______            929 (1st Cir. 1989).                                         -13-                                         -13-            in "constructive possession" of the ammunition in his closet.            See  United States v. Garcia, Nos. 92-1427, 92-1428, slip op.            ___  _____________    ______            at 6-11 (1st Cir. Feb. 4,  1993); United States v. Wight, 968                                              _____________    _____            F.2d 1393, 1397-98 (1st Cir. 1992).                    Chapdelaine's  last  attack  on  the  evidence  requires            little  comment.   He  says that  a  rational jury  could not            convict him of knowingly transporting a stolen vehicle across            state lines because,  as he  testified at trial,  he did  not            realize the Wagoneer was stolen.  But of  course the jury was            entitled to  disbelieve his testimony,  and Chapdelaine  does            not  otherwise contest  the government's  proof.   That proof            included  (in  addition to  that  summarized  at the  outset)            evidence that  Chapdelaine possessed  tools commonly  used by            car thieves  and Chapdelaine's own  admission that he  used a            screwdriver to start the Wagoneer.                 The Flaw in the Indictment.  Chapdelaine's next claim of                 __________________________            error is the most serious:  he was mistakenly convicted of an            offense for which he  was not indicted.   The count at  issue            charged interstate transportation of a stolen firearm, a Colt            .45  caliber  pistol  seized  from  the  green  laundry  bag.            Chapdelaine  was in fact initially named in this count in the            original indictment handed down by the grand jury.   Probably            by accident, Chapdelaine's name was omitted from the count in            a superseding indictment.                                          -14-                                         -14-                 The omission escaped  the attention  of the  prosecutor,            Chapdelaine's defense  counsel, and  the trial judge,  all of            whom proceeded  as if Chapdelaine  were still charged  in the            count.   At trial,  Chapdelaine's counsel and  the government            stipulated that the  Colt was stolen, and  there was evidence            that he  knowingly transported it  across state  lines.   The            district  court charged the jury  on the stolen firearm count            and it was  included in  a redacted indictment  given to  the            jury to reflect only counts naming Chapdelaine.  In preparing            the pre-sentence report, the probation officer discovered the            error.  The district court then vacated the conviction on the            stolen firearm charge but denied  a motion by Chapdelaine for            a new trial on all counts.                 We are  not cited  to any precedent  directly addressing            this issue.6    The  important  fact conveyed  to  the  jury,            Chapdelaine's possession  of  the weapon,  was admissible  as            "intent"  evidence on  several other  counts, whether  or not            possession was  charged as an  offense.  The  stipulated fact            that  the gun was stolen may not  have been admissible on the            other counts, but if  so the prejudicial force of  this point            was very  faint, as  other evidence showed  multiple weapons,                                            ____________________                 6The closest in point is Chow Bing Kew v. United States,                                          _____________    _____________            248 F.2d 466 (9th  Cir.), cert. denied, 355 U.S.  889 (1957).                                      _____ ______            The  Ninth Circuit there dismissed a conviction on a count in            which  the  defendant was  not named  while leaving  intact a            conviction on  another charge.   The question of  whether the            former conviction  invalidated the latter  was apparently not            raised.                                         -15-                                         -15-            two  stolen  cars, an  obliterated  serial  number and  ample            planning.  The  jury was instructed to separate  the evidence            as to each count, and its verdict--including the acquittal of            Chapdelaine  on two  counts relating  to the  stolen Jaguar--            suggests that it did just that.                                    III.  SENTENCE                 Chapdelaine's   final   challenge   is   to   sentencing            calculations.7   First, as to the  counts charging interstate            transportation   of  the  stolen   Wagoneer,  he  objects  to            including the value of  the stolen Jaguar and to  a two-level            enhancement in his  base offense level for more  than minimal            planning.   These computations were made  in the pre-sentence            report,  without objection  by Chapdelaine.   Whether  or not            these computations were error  (Chapdelaine was not convicted            of the  counts relating to  the stolen Jaguar),  his sentence            was  not affected by these two calculations.  Pursuant to the            guidelines,  the district  court  disregarded the  stolen car            counts  and set  Chapdelaine's  offense level  solely on  the            basis of the  grouped robbery counts.   U.S.S.G.    3D1.4(c).            It then sentenced Chapdelaine at the low end of the guideline                                            ____________________                 7Although the 1991 Sentencing Guidelines  were in effect            at the  time of Chapdelaine's sentencing,  the district court            applied  the 1990  guidelines in  effect at  the time  of the            offenses, a result more  favorable to Chapdelaine. See United                                                               ___ ______            States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).            ______    __________            All references in this opinion are to the 1990 guidelines.                                         -16-                                         -16-            range  due to his age.   Adjustments to the stolen car counts            simply did not figure into Chapdelaine's sentence.                 Next, Chapdelaine  complains of the  computation on  the            robbery  counts.  The guideline for robbery calls for a four-            level   increase  for   losses  ranging   from   $800,000  to            $1,500,000. U.S.S.G.   2B3.1(b)(6).  Where as here an attempt            or conspiracy is at issue, "intended" loss is the test.8   At            sentencing, over Chapdelaine's objection, the court imposed a            four-level increase in his base offense level for a "loss" of            $1,000,000--the approximate amount of money contained in  the            Wells Fargo truck  when it stopped at the BayBank  on the day            Chapdelaine and the others were arrested.                   Chapdelaine  contends that  the  loss in  this case  was            speculative because no robbery actually occurred.  However,             "[i]n  an attempted theft, the  value of the  items that the            defendant attempted to steal  would be considered."  U.S.S.G.              2X1.1,  application  note 2.   The  requirement in  section            2X1.1(a)   of  "reasonable  certainty"  "goes  to  what  with            reasonable   certainty  can   be   determined   to   be   the                                            ____________________                 8U.S.S.G.    2B3.1, application note 3, cross-references            section 2B1.1  for "valuation  of loss" in  robbery offenses.            Section  2B1.1,  application  note  2, refers  the  judge  to            section  2X1.1  in cases  of  "partially completed  conduct."            Section 2X1.1 sets the  base offense level as that  fixed for            the  object  offense  (in  this  case,  robbery),  "plus  any            adjustments from  such  guideline for  any  intended  offense            conduct that  can be established with  reasonable certainty."            U.S.S.G   2X1.1(a).                                           -17-                                         -17-            conspirator's intent."   United States v.  Medeiros, 897 F.2d                                     _____________     ________            13, 18 (1st Cir. 1990).                    Finally,  Chapdelaine  invokes  section 2X1.1(b),  which            directs the sentencing court to decrease by three levels  the            offense  level  for  an  attempt  or  conspiracy  unless  the                                                              ______            defendant  or  conspirators  were  "about  to  complete"  the            underlying offense "but for  the apprehension or interruption            by   some   similar   event   beyond  [the   defendant's   or            conspirators'] control."   U.S.S.G.    2X1.1(b)(1), (2).  The            district court in this  case declined to grant  the reduction            because  it found  that  the robbery  was frustrated  "simply            because the  . . .  truck arrived  earlier than  usual."   On            appeal, Chapdelaine disputes the  correctness of this finding            while  the  government  naturally  urges  us  to  uphold  the            district court.                   We affirm  the district  court's conclusion that  on the            present facts Chapdelaine was  not entitled to the reduction.            The evidence  showed that Chapdelaine and  the others arrived            at the mall prepared  and equipped to carry out a robbery and            were thwarted only  by the unexpected early departure  of the            Wells Fargo truck.   Under these circumstances,  there was no            clear  error  in   the  district   court's  conclusion   that            Chapdelaine  was  "about  to  complete" a  robbery  "but  for            apprehension  or interruption  by  some similar  event beyond            the  defendant's  control."   U.S.S.G.     2X1.1(b)(1).   See                                                                      ___                                         -18-                                         -18-            United  States v.  Johnson,  962 F.2d  at 1313-14  (upholding            ______________     _______            denial of the reduction under similar facts).                  Chapdelaine  argues   that  the  reference   in  section            2X1.1(b)  to  an   interruption  "similar"  to   apprehension            excludes  offenses that  are prevented  by  fortuitous events            like  the premature departure of  the Wells Fargo  truck.  In            our  view,  the guideline  reflects  a  policy decision  that            conspiracies and attempts should be  treated like substantive            offenses  for sentencing purposes  if the substantive offense            was nearly  completed, and the defendant  did not voluntarily            withdraw.   The Sentencing  Commission  likely believed  that            near  accomplishment of  the criminal  object  normally poses            enough risk  of actual harm, and  reveals enough culpability,            as to justify the same punishment that would be imposed for a            completed   offense.    It  is  nearness   of  the  crime  to            achievement--not   the  precise  nature  of  the  involuntary            interruption--that  defeats  the   reduction  available   for            conspiracies and attempts that  have not progressed very far.            This one progressed far enough.                 The judgment of conviction and sentence are affirmed.                                                             ________                                                      -19-                                         -19-
