
USCA1 Opinion

	




                            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 & Iacopino were          ____________________     ___________________________________          on brief for appellant William F. Kenney, Jr.               Robert Sheketoff with  whom Sheketoff &  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                                  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                                      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                            I.  LEGAL STANDARD USED BY THE                            ______________________________                       COURT AND GOVERNMENT IN DETERMINING WHAT                       COURT AND GOVERNMENT IN DETERMINING WHAT                       ________________________________________                   EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN                   EVIDENCE SHOULD BE DISCLOSED TO APPELLANT FLYNN                   _______________________________________________                                   A.  Brady Claims                                   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                         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                          II.  THE COURT'S ORDER OF $266,500                          ___________________________________                        IN RESTITUTION AGAINST APPELLANT NEAL                        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                                III.  JOINT CHALLENGES                                ______________________                  A.  The Court's Failure to Define Reasonable Doubt                  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                B.  Sufficiency of Evidence Supporting Guilty Verdicts                ______________________________________________________            of Flynn and Kenney on Counts Involving the Dress Barn Robbery            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                    C.  The Court's Denial of Flynn's and Kenney's                    _______________________________________________                 Motions to Set Aside Verdicts and to Grant New Trial                 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 & 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                      IV.  CHALLENGES RAISED SEPARATELY BY FLYNN                      __________________________________________                   A.  The Court's Denial of Motion for Continuance                   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                     B.  The Court's Admission of Bank Employee's                     ____________________________________________                    Testimony and Its Denial of Appellant's Motion                    Testimony and Its Denial of Appellant's Motion                    ______________________________________________                   for Judgment of Acquittal on Bank Robbery Counts                   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 & 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                  C.  The Court's Denial of Motion to Sever Count 19                  __________________________________________________                  Charging Possession of Firearm by Convicted Felon                  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               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                      V.  CHALLENGES RAISED SEPARATELY BY KENNEY                      __________________________________________                     A.  The Court's Denial of Motion to Dismiss                     A.  The Court's Denial of Motion to Dismiss                     ___________________________________________                  Indictment Under Interstate Agreement on Detainers                  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          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                  VI.  SEPARATE CHALLENGES RAISED BY APPELLANT NEAL                  _________________________________________________                A.  Sufficiency of Evidence to Support Guilty Verdict                 A.  Sufficiency of Evidence to Support Guilty Verdict                 ______________________________________________________           on Counts Alleging Accessory After The Fact and Money Laundering           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                           B.  Court's Denial of Motion for                           ________________________________                      Downward Adjustment of Base Offense Level                      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 &                                  ___          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                                   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                      APPENDIX I:  LISTING OF JENCKS ACT RULINGS                      __________________________________________                             TO BE RECONSIDERED ON REMAND                             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-
