          United States Court of Appeals
                     For the First Circuit
 
 

Nos. 14-2026
     14-2079

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         DAVID LASSEQUE,

                      Defendant, Appellant.
 

          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

          [Hon. William E. Smith, U.S. District Judge]
 

                             Before

                   Lynch, Stahl, and Kayatta,
                         Circuit Judges.
                                 

     William T. Murphy for appellant.
     Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.

                                 

                        November 18, 2015
                                 
          STAHL, Circuit Judge.        Following a two-day jury trial,

Defendant-Appellant David Lasseque was convicted of aiding and

abetting a bank robbery, in violation of 18 U.S.C. § 2113, and

conspiring to commit a bank robbery, in violation of 18 U.S.C.

§ 371.    At    sentencing,   the   district     court   applied   a   weapon

enhancement and an obstruction of justice enhancement, both of

which increased the recommended sentencing range.            The defendant

now appeals.    For the reasons stated below, we affirm.

                        I.    Facts & Background

          "As    with   any   challenge     to   the   sufficiency     of   the

evidence following a trial by jury, we recite the facts in the

light most favorable to the jury's verdict."              United States v.

Bayes, 210 F.3d 64, 65-66 (1st Cir. 2000).

          David Lasseque ("Lasseque") and Pierre Rheau ("Rheau")

lived one floor apart in the same building in Providence, Rhode

Island.   On the afternoon of July 12, 2013, Rheau asked Lasseque

to drive him to Barrington, Rhode Island.              Lasseque agreed and

drove Rheau in a brown Hyundai rented the day before by Rheau's

second cousin.

          In Barrington, Rheau, wearing a baseball cap, a black

cloth around his face, dark sunglasses, latex gloves, and a

pillow under his clothes to make him seem heavier, entered a

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local branch office of Bank of America.           Brandishing a black

gun, he demanded money from the tellers, who quickly obliged.

Rheau exited the bank about one minute later and got back in the

Hyundai driven by Lasseque.       Local police officers quickly were

dispatched to the crime scene following a report of the robbery

by the bank tellers.

           About a mile away from the bank, a police officer saw

a driver that he believed fit the description of the robber

approaching from the direction of the bank.           Noticing that he

was speeding and changing lanes without signaling, the officer

pulled Lasseque over.        As the police officer got out of the

cruiser and approached the Hyundai, Lasseque sped off.

           Lasseque led officers on a lengthy high-speed chase

that only terminated when his vehicle collided with a police

cruiser.      After the crash, Lasseque immediately exited the car

and began to flee on foot.         As Lasseque attempted to scale a

backyard   fence,    two    officers   pulled   him   down.     Lasseque

initially struggled with the officers and refused to place his

hands behind his back, but finally relented and was cuffed.

           Rheau remained in the Hyundai after it crashed.          Upon

a search of the vehicle, officers found the money stolen from

the   bank,    the   gun,   and   Rheau's   robbery   attire.      After

                                  - 3 -
indictment, Rheau eventually pled guilty to two counts: armed

bank robbery and conspiracy to commit a bank robbery.             At the

plea hearing, Rheau admitted that he and Lasseque had agreed to

rob the bank, and that he executed the robbery with Lasseque

serving as the getaway driver.

          Although      Lasseque   waived     his   Miranda   rights    the

morning   after   the    robbery    and    agreed   to   speak   with   an

investigating officer, when questioned, Lasseque "smiled, joked,

giggled, and was non-responsive."           Lasseque proceeded to trial

on two counts: aiding and abetting an armed bank robbery and

conspiracy to commit a bank robbery.

          At trial, Lasseque testified that, on the afternoon of

July 12, 2013, he agreed to drive Rheau to his girlfriend's

house in Barrington so that he could retrieve a few things.

Lasseque claimed that once Rheau exited the vehicle, he fell

asleep.   According to Lasseque, he awoke when Rheau got back in

the car and demanded that Lasseque drive away quickly because

Rheau did not want his girlfriend "to see what kind of car he

jumped in."   Lasseque testified that after they were pulled over

by the police, Rheau revealed he had a gun.              Fearing that the

police would shoot him because of the gun, Lasseque sped off as

the police officer was approaching the car.               Lasseque denied

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having seen Rheau's disguise prior to the robbery or having any

prior knowledge of the robbery or the gun.

               At the close of the government's case, Lasseque moved

for a judgment of acquittal pursuant to Rule 29 of the Federal

Rules     of    Criminal     Procedure.       Lasseque   argued     that    the

government had failed to provide sufficient evidence to show

that there was an agreement between Rheau and himself to rob the

bank, that he physically participated in the robbery in any way,

or that he had the requisite intent necessary to support either

charge.        The district court rejected Lasseque's motion.               The

jury found Lasseque not guilty of aiding and abetting an armed

bank robbery, but convicted him on the lesser-included count of

aiding and abetting a bank robbery and conspiring to commit a

bank robbery.

               At sentencing, Lasseque lodged a number of objections

to the Presentence Investigation Report ("PSR"), only two of

which are at issue on appeal.             First, Lasseque objected to the

application      of    a   three-point    weapon   enhancement   pursuant    to

§ 2B3.1(b)(2) of the United States Sentencing Guidelines Manual

("U.S.S.G.").         Second, Lasseque objected to the application of a

two-point      obstruction     of   justice   enhancement   under    U.S.S.G.




                                      - 5 -
§ 3C1.1.          The    district          court        denied       both    objections         and

sentenced Lasseque to a term of incarceration of 140 months.

                                       II.      Analysis

                On appeal, Lasseque contends that the district court

erred in denying his Rule 29 motion for judgment of acquittal

and   further      argues      that,       at    sentencing,          the   court    erred       in

imposing the weapon and obstruction of justice enhancements.                                    We

address each contention in turn.

      A.        Motion for Judgment of Acquittal

                Under    Federal       Rule       of     Criminal         Procedure       29,     a

defendant       may     move    for     the      court        to    enter    a    judgment       of

acquittal after the government closes its evidence on the ground

that the evidence is insufficient to sustain a conviction.                                      The

denial     of    that    motion       we    review       de    novo.      United    States       v.

Trinidad-Acosta, 773 F.3d 298, 310 (1st Cir. 2014).                                 On review,

we examine the evidence "in the light most favorable to the

verdict,"       asking       "whether       a    rational          jury   could    find     guilt

beyond a reasonable doubt."                  United States v. Burgos-Montes, 786

F.3d 92, 112 (1st Cir. 2015).                     The scope of our review accords

due   deference         to     those       properly       charged         with    sifting       and

weighing the facts, informed by the credibility cues of the

witnesses and the full context of the trial.                                 Our job is to

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monitor the boundaries of reasonable fact-finding, not to engage

in it ourselves.          United States v. Davila-Nieves, 670 F.3d 1, 7

(1st Cir. 2012) (stating that, in reviewing the denial of a

motion    for      acquittal,        "we    do    not    weigh     competing      evidence;

rather, we merely verify that some evidence adequately supports

the jury's verdict").                As such, Lasseque's Rule 29 challenge

"face[s]      an    uphill      battle       on     appeal."        United      States    v.

Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008) (quoting United States

v. O'Shea, 426 F.3d 475, 479 (1st Cir. 2005)).

              Lasseque argues that there was insufficient evidence

to show that he knowingly aided and abetted Rheau in committing

the   bank    robbery.          To    prevail       on    its    theory    of   accomplice

liability, the government had to prove that: (1) Rheau committed

the   substantive        acts    of    the       bank    robbery;    and    (2)    Lasseque

"became      associated      with      the       endeavor    and    took    part    in   it,

intending to ensure its success."                       United States v. Spinney, 65

F.3d 231, 235 (1st Cir. 1995).                    As Rheau's guilt is undisputed,

our inquiry necessarily focuses on the second element of this

recitation,        and    whether          the    government       offered      sufficient

evidence that Lasseque took an affirmative act in furtherance of

the bank robbery with the intent to facilitate its commission.

See Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014).

                                             - 7 -
             Upon        reviewing      the    record,        we     agree     with    the

determination of the district court that the government provided

sufficient evidence to enable the jury to find Lasseque guilty

of the charged offense.              Because the robbery took place during

daylight hours in a commercial district with heavy pedestrian

and vehicular traffic, it would be quite reasonable to infer

that Rheau donned his unconventional apparel, including latex

gloves and a pillow under his clothes, in the car before being

dropped off.        This suggests that Lasseque was well aware of the

plot soon to unfold.

             The    alternative,        of    course,    is    that    Rheau    acquired

this   mélange      of    items   elsewhere      after       being    dropped    off    by

Lasseque and then either assembled his disguise at the foot of

the bank or meandered his way through town sporting his full

ensemble.     The jury need not surrender to such speculation.                         The

government    must        prove   the    elements       of    the     crime    beyond    a

reasonable doubt, not beyond all doubt.

             In addition, the jury was well within reason to find

that the nature and extent of Lasseque's elusion of authorities

following the robbery belied the justification he offered at

trial.   Here, Lasseque engaged in a lengthy and dangerous high-

speed chase, culminating in a collision with a police cruiser,

                                         - 8 -
an attempt to flee by foot, and a struggle with the arresting

officers.      The jury could quite easily find that this form of

flight   was    “a    particularly     eloquent   reflection   of    a   guilty

mind,” rather than the panicked impulse of an innocent heart.

United States v. Martinez, 922 F.2d 914, 923 (1st Cir. 1991).

            Finally, Lasseque's alternative explanation at trial

is undercut by his failure to offer it after waiving his Miranda

rights in his post-arrest interview.              All of this evidence is

probative of Lasseque's intent and was placed before the jury by

the government.

            In addition to reinforcing Lasseque's foreknowledge of

the plan, there can be little doubt that Lasseque's evasive

exploits constituted an affirmative act in furtherance of the

robbery.       It is well settled that a getaway driver aids and

abets a robbery.            See Rosemond, 134 S. Ct. at 1249.            A bank

robbery would hardly be effective if one could not successfully

abscond with the fruits of the crime.

            Lasseque seems to suffer under the misconception that

the government had to put forth direct evidence of each element

in order to prevail.           "Contrary to appellant's insinuation, the

criminal    law      does    not   place   a   special   premium    on   direct

evidence. . . .        As long as the evidence taken in its entirety

                                      - 9 -
supports a judgment of conviction, it need not rule out every

other reasonable hypothesis of innocence."         United States v.

O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).

           The direct and circumstantial evidence found in the

record is more than sufficient to support the jury's findings.

For this reason, we conclude that the lower court did not err in

denying Lasseque's motion for a judgment of acquittal.

     B.    Sentencing Enhancements

           Lasseque also appeals the lower court's application of

a three-point weapon enhancement and a two-point obstruction of

justice   enhancement   pursuant   to   the   sentencing   guidelines.

Where the moving party raises an objection below, sentencing

determinations are reviewed for abuse of discretion, examining

the district court's factual findings for clear error and its

interpretations of the guidelines de novo.          United States v.

Carpenter, 781 F.3d 599, 608 (1st Cir. 2015).       Where the moving

party fails to raise an objection below, review is for plain

error.    United States v. Reda, 787 F.3d 625, 630 (1st Cir.

2015).    Under a plain error review, the objecting party bears

the burden of demonstrating:       "(1) that an error occurred; (2)

which was clear or obvious; and which not only; (3) affected the

defendant's substantial rights, but also; (4) seriously impaired

                               - 10 -
the   fairness,     integrity,        or    public     reputation      of    judicial

proceedings."     United States v. Combs, 555 F.3d 60, 63 (1st Cir.

2009) (quoting United States v. Moran, 393 F.3d 1, 13 (1st Cir.

2004)).

           In the proceedings below, Lasseque objected to both

enhancements,     but    on     grounds    different     than    those      raised   on

appeal.    In     this       case,   however,    the    applicable     standard      of

review is of little import, for we can find no error, plain or

otherwise, in the lower court's findings or reasoning.

           First,       we    examine      the   court's     application       of    the

weapon    enhancement          in    calculating       the    proper        sentencing

guidelines range.            Under U.S.S.G. § 2B3.1(b)(2), the offense

level receives a three-point increase "if a dangerous weapon was

brandished or possessed" during the commission of the offense.

The   parties   agree        that    the   proper      inquiry   is    whether       the

district court could find, by a preponderance of the evidence,

that it was reasonably foreseeable to Lasseque that Rheau would

brandish or possess a weapon during the robbery.                         See United

States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014).

           Lasseque alleges that he had no knowledge that Rheau

was going to use a gun during the robbery, and that he first

became aware of the gun when their vehicle was pulled over.

                                        - 11 -
Even    if    we     were    to    accept       this      proposition         at     face   value,

however, it would do little to upset the enhancement applied

below.         The    question          is     not    whether       Lasseque          had   actual

knowledge of the gun prior to the robbery, but whether he knew

of     the    impending        robbery         and        whether       it     was      reasonably

foreseeable that Rheau would possess or brandish a weapon during

its commission.         See U.S.S.G. § 1B1.3(a)(1)(B).

               We have already concluded that the government laid out

sufficient         evidence       to    find    that       Lasseque      was       aware    of   the

"salient details of the plot."                       Spinney, 65 F.3d at 237.                    The

only question, then, is whether it was reasonably foreseeable

that the commission of a bank robbery in broad daylight would

entail the use of a weapon.                          The answer is in the asking.

"[N]ot       even    the     most      sanguine        criminal       would        expect    clear

sailing without some menace in the wind."                             Id.       We have stated

before that guns are often "tools of the trade" when it comes to

certain offenses, and that an awareness of the general plan is

sufficient to infer knowledge that weapons would be used to

carry that plan through to completion.                              See United States v.

Fermin,      771     F.3d    71,       83    (1st    Cir.     2014);         United     States    v.

DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994).                              Absent extenuating

circumstances,         the    "possession            of   a   gun   .    .     .   is   virtually

                                               - 12 -
essential" in perpetrating a bank robbery.                           United States v.

Powell, 929 F.2d 724, 727 (D.C. Cir. 1991).

             In sum, the district court did not err in finding it

reasonably foreseeable that Rheau would possess or brandish a

weapon in the course of the crime.                     We decline to disturb the

lower court's sensible judgment on this point.

             Next,      we    examine     the    court's        application     of   the

obstruction of justice enhancement.                    Under U.S.S.G. § 3C1.1, a

two-level enhancement is appropriate if the defendant "willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration       of      justice   with     respect    to       the   investigation,

prosecution,       or     sentencing"      of    the    conviction.           Pertinent

conduct includes "providing materially false information to a

judge   or    magistrate        judge."         U.S.S.G.        §    3C1.1   cmt.    n.4.

Providing false information to a judge in the course of a bail

hearing can serve as a basis for the obstruction of justice

enhancement.       United States v. Greig, 717 F.3d 212, 221-22 (1st

Cir. 2013).

             The     key       facts    underlying        the        enhancement     are

undisputed.        About two months after the indictment, Lasseque

obtained an unsworn affidavit from Rheau dated October 26, 2013.

The affidavit stated that Lasseque was unaware of the plan to

                                        - 13 -
rob the bank.          As trial approached, Lasseque moved for bail.                     At

the bail hearing, defense counsel offered various exhibits and

alluded to the affidavit, but did not seek its admission at that

point.     The     magistrate        judge    denied      the    bail     motion.       Just

moments        after     the        ruling,    defense          counsel       moved      for

reconsideration based on the affidavit, which was then put forth

and marked as Exhibit D.                   Before reading the affidavit, the

magistrate judge asked defense counsel:                         "So, your purpose in

presenting      this     is    to   show   that     the    weight      of   the   evidence

against the defendant isn't as strong as I had concluded because

he's been exonerated?"                Counsel replied:            "Yes, your honor."

The judge read the affidavit, summarized its contents, and heard

argument concerning its import.                   The judge then reaffirmed his

earlier ruling and denied bail.

               About    two    weeks     later,     Rheau       pled    guilty    to    both

counts    of    the     indictment,        stipulating       in     his     written     plea

agreement and in sworn admissions during the plea colloquy that

he and Lasseque had conspired to rob the bank and that Lasseque

had   served     as     the    getaway     driver.         Although       Rheau   did    not

explicitly      disavow       the    affidavit,      his    sworn       statements      were

incompatible with its contents and Rheau's counsel represented

to the court that "if Rheau was called to testify, he would

                                           - 14 -
testify that he was forced or coerced into making that statement

and that it's not true."

           At     sentencing,              the     district      court       found        that   an

obstruction     of         justice          enhancement         was     warranted          because

Lasseque had used the affidavit in an attempt to influence the

bail   decision       and      because       the     affidavit        was    "clearly       false"

based on Rheau's admissions and the jury’s finding that Lasseque

participated in the conspiracy.

           Lasseque demurs.                  He first notes "the great value of

adversarial cross-examination in determining who is telling the

truth when narratives differ," and then claims that the district

court failed to find that Lasseque willfully sought to obstruct

justice.   Both contentions fail.

           First, we may quickly dispense with Lasseque's half-

hearted claim of procedural error based on a lack of cross-

examination.              Despite          the     critical      importance          of     strict

evidentiary       procedural                limitations         when        ascertaining          a

defendant's guilt, sentencing judges have, since colonial times,

"exercise[d]      a       wide       discretion      in   the    sources       and    types      of

evidence   used       .    .     .    in    determining       the     kind    and    extent      of

punishment to be imposed."                   Williams v. People of State of N.Y.,

337 U.S. 241, 246 (1949).                   "[T]he sentencing court may rely upon

                                                 - 15 -
virtually any dependable information, including statements which

have not been subjected to the crucible of cross-examination and

information appearing in a presentence report."                         United States

v. Doe, 741 F.3d 217, 236 (1st Cir. 2013) (quoting United States

v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)) (quotation

marks omitted).

              Second, Lasseque argues that the district court did

not   find    that        he   acted    willfully        in   presenting    the   Rheau

affidavit to the magistrate judge.                       Lasseque claims that the

court expressed uncertainty over his state of mind and failed to

sufficiently articulate the basis for its decision.                           Lasseque

points   to    a    passage      in    the    hearing     transcript,      wherein   the

sentencing judge states:

              I know you maintain your -- I think you
              maintain your innocence here and the jury
              has found you guilty.   I think your claims
              that you didn't know what was going on here
              [are] completely incredible.   There's no --
              I don't know if you've convinced yourself of
              that, but it's plain to me that you knew
              what was going on, you were part of this
              conspiracy to rob the bank and then you
              engaged in this crazy getaway drive . . .
              and endangered a lot of people in doing
              that. (emphasis added).

Lasseque latches onto this statement and argues that the court's

uncertainty        over    his   state       of   mind    precludes   a    finding    of


                                         - 16 -
willfulness.          Although           "inaccurate       testimony       or    statements

sometimes may result from confusion, mistake, or faulty memory

and   thus,     not   .   .     .    reflect       a   willful    attempt       to    obstruct

justice," U.S.S.G. § 3C1.1 cmt. n.2, defense counsel's adroit

use of the transcript founders when the judge's remark is placed

back in context.

              The court's fleeting comment was not made during its

discussion of the obstruction enhancement, but rather during its

general ruminations at the conclusion of the sentencing hearing

after all objections had been ruled upon.                         Assuming the judge's

casual remark reflected an actual uncertainty about Lasseque's

mental    state    at     the       time    of     sentencing,    it     still       would   not

reflect an uncertainty about Lasseque's mental state at the time

of the trial, the time of the offense, or the time of the bail

hearing    at     issue.            In     fact,    any   suggestion       that       Lasseque

believed      himself      to       be     innocent       all    along     is     explicitly

foreclosed by the judge in the same breath:                            "I don’t know if

you’ve convinced yourself of [your innocence], but it's plain to

me that you knew what was going on . . . ." (emphasis added).

As such, even if Lasseque's argument is on the right track, it

appears to be on the wrong train.                         Nothing about the court's




                                             - 17 -
passing   observation          precludes         a    finding       that    Lasseque       acted

willfully at the time of the bail hearing.

            Lasseque          further      argues         that    the   court      failed     to

sufficiently articulate its finding of willfulness.                                 Lasseque

points to the Eighth Circuit's decision in United States v.

Ransom, where the lower court had applied an obstruction of

justice enhancement because it had determined that the grand

jury testimony of the defendant was "fraught with lies."                                    990

F.2d 1011, 1014 (8th Cir. 1993).                      The Eighth Circuit held that

the    court's    finding          was    insufficient           because    the    judge    had

"failed to point specifically to any of these alleged acts of

perjury."         Id.         In    fact,     the         lower    court    had     expressly

acknowledged that it was "not familiar with the [grand jury]

transcript" at issue.               Id.     The Eighth Circuit found the lower

court's   lack     of    familiarity         with         the     transcript      "especially

important . . . given that no trial was conducted which would

have    provided    the       judge       with       an    opportunity      to     gauge     the

defendant's actions and testimony while on the witness stand.

The Court's only opportunity to observe the defendant occurred

at sentencing."         Id.

            The    defendant's            reliance        upon     Ransom    is    misplaced.

Unlike in Ransom, the court here pointed to a specific document;

                                            - 18 -
reflected      upon    the      sources          of     evidence        that        rendered      the

document false; and discussed the context in which the document

was   offered,      the    purpose         for    which     it    was        offered,       and   the

document's intended effect.                      Moreover, unlike in Ransom, the

sentencing     judge       in   this       case       presided        over    the     defendant's

trial    and    had    ample         opportunity           to    gauge        the     defendant's

credibility.        Ransom is simply inapposite based on this record.

              In essence, Lasseque's argument boils down to this:

the     sentencing        judge      did     not       explicitly            recite       the     word

"willful"      in     relaying         his       rationale            for     the     obstruction

enhancement.        Yet, we do not demand that judges, in explaining

the   bases    for    their       rulings,         be      "precise         to   the      point    of

pedantry."      United States v. Fernández–Cabrera, 625 F.3d 48, 53

(1st Cir. 2010).           The sentencing judge is not a checklist in a

robe, and we will not upset a court's careful reasoning and

considered      judgment        in     order          to   quibble           with     the       verbal

formulation      employed.            The    sentencing           judge       found       that    the

assertions in the Rheau letter were "clearly false" and that

Lasseque      "attempted        to     use       them      to    obstruct           the     judicial

process" by "try[ing] to influence [the magistrate judge’s] bail

decision."          This    explanation           makes         the    judge's        willfulness




                                             - 19 -
finding abundantly, albeit implicitly, clear.     We need dwell

upon the question no further.

                        III.    Conclusion

          For the foregoing reasons, the judgment is AFFIRMED.




                                - 20 -
