
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-2031                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ROBERT M. JOOST,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Cummings,* Circuit Judge.                                           _____________                                 ____________________            Robert Joost on brief pro se.            ____________            Kenneth P. Madden, Assistant  United States Attorney,  and Sheldon            _________________                                          _______        Whitehouse, United States Attorney, on brief for appellee.        __________  ______________________                                 ____________________                                    August 7, 1996                                 ____________________                                    ____________________             *Of the Seventh Circuit, sitting by designation.               COFFIN, Senior  Circuit Judge.   Defendant Robert  Joost was                       _____________________          convicted by a jury  of conspiracy to obstruct, delay  and affect          commerce by robbery of gold from an armored  car, in violation of          18 U.S.C.   1951 (the Hobbs Act).1   He filed this appeal pro se,                                                                    ___ __          alleging a  host of errors.   Finding none of them  to affect the          integrity of the conviction, we affirm.2                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND               In March 1994, an  informant, Tracy, introduced defendant to          two undercover  Rhode Island detectives, DelPrete  and O'Donnell,          who were investigating  the manufacture  of counterfeit  Foxwoods          Casino (Connecticut) slot machine tokens by defendant and others.          During the ensuing months, defendant supplied the detectives with          many such tokens,  which the  detectives said they  were able  to          exchange for cash at the  cashier's cage through a cousin of  one          of them.               On April 24,  1994, defendant asked  the detectives to  join          him in robbing a  Meehan armored car that regularly  carried gold          to  New York.  He  said he had earlier  assembled a gang for this          job  and had  made plans that  he now  sought to  reactivate.  In                                        ____________________               1   The same  jury was  unable to reach  a verdict on  a co-          defendant, Grelle, who later pled guilty.               2  Defendant also was  charged with two additional offenses.          His conviction for  being a felon in possession  of a firearm, in          violation of 18 U.S.C.    922(g), is being vacated in  a decision          issued simultaneously  with this one because of the trial court's          erroneous refusal to  give an instruction on  entrapment.  United                                                                     ______          States v.  Joost,  No. 95-2032  (1st  Cir. July  xx, 1996).    An          ______     _____          indictment  alleging  interstate  theft  and  counterfeiting,  in          violation  of 18  U.S.C.     371 and  487, was  dismissed without          prejudice.                                         -2-          subsequent conversations  in May defendant said  that the company          had  changed its  vehicle from  a truck  to  a van.   On  May 28,          defendant, Grelle,  and the two detectives  drove to Pennsylvania          to carry out  a robbery  of a warehouse  or tractor/trailer,  but          were  intercepted by  a prearranged  investigative stop  in which          police confiscated burglar tools supplied by defendant.               Further talk about the  Meehan job led to a  surveillance in          woods near the  armored car facility on the night  of June 29-30.          Defendant had  said that the vehicle carried  up to $6 million in          gold, and that  Leach & Garner  was one customer.   He said  that          guards  would arrive  at about  3:00 a.m.,  that one  would leave          first for the vehicle and another would follow.  Defendant's plan          had  two of his team rushing the  first guard while a third would          alert  them to the  approach of  the second  guard, both  of whom          would  be seized,  and shot  if necessary with  a silencer.   The          robbery aborted when the guards failed to appear.               Executives of  both Leach  & Garner and  Meehan corroborated          the pick-up time (between 4:30  and 5:30 p.m.), the value  of the          shipment (averaging  $5 million), overnight  storage at  Meehan's          Woonsocket facility, the arrival of two guards at 3:00 a.m.,  and          the  change in  April 1994  from  a truck  to a  van.   Defendant          testified that  he  had  gotten his  information  from  a  prison          roommate, used them in a novel he was writing, and brought up the          armored  car  project in  order to  sustain  the interest  of the          detectives until he, defendant, could meet  and establish his own                                         -3-          connection  with the "cousin" in the casino's cashier's cage.  He          had never intended to follow through on an actual robbery.               Insofar as  additional facts  may be relevant  on particular          issues, they will be incorporated into the following discussion.                                      DISCUSSION                                      DISCUSSION               Defendant represented  himself at trial  during presentation          of  the  government's  case;  after  the  government  rested,  he          requested  standby  counsel to  take over.    In this  appeal, he          resumes  self-representation,  and  has briefed  sixteen  issues.          While some merit more discussion than others, we shall follow the          sequence  in  which  both   defendant  and  the  government  have          presented their positions.                1. "Other Acts" Cross Examination.                  ______________________________               Defendant's  basic theme,  introduced  in  his  opening  and          reiterated  in his testimony, was that he did not engage in armed          robberies, that he was  fully aware of the heavy  penalty imposed          on  a convicted felon found in  possession of a firearm, and that          his  many discussions  with  the detectives  concerning past  and          future criminal projects were  fanciful tales designed to sustain          their interest  until he could  establish his own  modus operandi          with the casino's cashier.               The government sought  to rebut defendant's claim of lack of          intent  to  rob  by  asking  O'Donnell  about  the  conversations          defendant had had with the detectives concerning various criminal          ventures.    On  objection,  the  court  refused  to  allow  such          questioning,  deeming prejudice  to  outweigh relevance  at  that                                         -4-          point, but noting that  the ruling was "subject to  whatever else          is going to come out."  Defendant subsequently took the stand and          testified at length about his  lack of intent to rob the  armored          car.                 When  the government  proposed  to cross  examine  defendant          about his various proposals to the detectives, the court deferred          ruling and further questioning pending resolution of the question          whether, if  defendant invoked  the Fifth Amendment,  all of  his          testimony  should be  stricken.   The  court subsequently  became          satisfied  that  defendant's   taking  the  Fifth  Amendment   on          collateral  matters would  not affect  his prior  testimony.   It          therefore  allowed  the  government  to  ask  some   twenty-three          questions about defendant's  conversations or actions  concerning          proposed  thefts from a  UPS van, an American  Legion hall, and a          Pennsylvania  warehouse,  and  delivery   of  a  firearm  to  the          detectives.   Defendant, in the presence of the jury, invoked the          Fifth Amendment as to each question.3               He  now makes  two arguments.   First,  he asserts  that the          court improperly  failed to balance  prejudice against relevance,          although he undercuts this argument  by observing, "At best, this          `evidence'  was merely cumulative."   We think it  clear that the          court  was fully aware of  its responsibilities.   It earlier had                                        ____________________               3   In defendant's subsequent prosecution for being a felon-          in-possession  of a  firearm, see  supra at  n.2, his  defense of                                        ___  _____          entrapment  relied  on  a   full  disclosure  of  all   of  these          conversations  and actions,  which he  characterized as  fanciful          fiction,  devised  to induce  the  detectives  to continue  their          dollars-for-tokens support.                                         -5-          rejected the proffered line of questioning and permitted it  only          after defendant  testified extensively about his  lack of intent.          While, as always, explicit findings would have avoided any issue,          we do not deem this an abuse of discretion. See  United States v.                                                      ___  _____________          De La Cruz, 902 F.2d 121, 123 (1st Cir. 1990).          __________               Defendant's  second  argument is  that  there  was no  "real          evidence" or responses  from him backing  up the insinuations  of          the prosecutor.  But this is not a situation where the prosecutor          was  flying blind  and  asking questions  without any  legitimate          reason.  Some of the subject  matter -- the trip to  Pennsylvania          to rob the warehouse  -- was already in evidence; and  both sides          were fully aware that most of the relevant conversations had been          taped.   The government's attempt  to elicit the same information          from its witness  had been  foreclosed.  Defendant,  who had  the          option  of convincing the jury  of his "version  of the facts and          his reliability as a witness, [or] not to testify at all  [,] . .          .  cannot reasonably claim that the Fifth Amendment gives him not          only this choice but, if  he elects to testify, an  immunity from          cross-examination on the matters he has himself put in  dispute."          Brown v. United States, 356 U.S. 148, 155-56 (1958).          _____    _____________               Moreover,  this objection  was  not  effectively  raised  at          trial. Only two of the twenty-three questions were objected to on          the  ground of  "lack  of evidence."    Both of  these  concerned          whether defendant had looked at the American Legion building, but          other questions  had been asked without  objection concerning the          plan to rob that building.                                           -6-               2.  Rulings admitting evidence.                   __________________________                    a.  O'Donnell  testified  about  a   conversation  with          codefendant Grelle, in which Grelle told of his son's involvement          in an armored car robbery.  The testimony was promptly struck and          a cautionary instruction given.   After a recess both  Grelle and          defendant moved for a mistrial.  The linkage between Grelle's son          and  defendant is  tenuous  and remote.    This is  not  mistrial          material.                    b. The informant Tracy at  one point testified that one          reason  why he did not tell defendant that O'Donnell and DelPrete          were really state  troopers was concern for  his own safety.   An          objection  was overruled.  But  earlier Tracy had  given the same          reply in direct  examination by defendant.   Moreover, this  adds          nothing to defendant's own talk about being prepared to shoot the          armored car guards.  If error, it was harmless.                    c.  The  government  asked  defendant if  he  had  been          convicted  of a  conspiracy to  violate  civil rights  by murder.          Objection to the  question was overruled.   Defendant answered by          saying,  "That's not  true. It  was by  death resulting."   Then,          after defendant repeated that  the conviction was for "conspiracy          to violate the civil  rights of a citizen, death  resulting," the          prosecutor  interjected, "By  killing;  conspiracy  by  killing?"          Defendant  answered, "Well, yes.   There was  a death resulting,"          just before objection was made and overruled.               A  reading of United States v. Guillette, 547 F.2d 743, 748-                             _____________    _________          49  (2d Cir.  1976),  reveals that  a  prospective witness  in  a                                         -7-          prosecution against this defendant and another had been killed by          a  bomb activated  when  opening the  front  door of  his  house.          Defendant  argued that it  had been installed by  the victim as a          booby trap aimed at  him and his codefendant, who  were searching          for  him to prevent him  from testifying.   The Connecticut trial          court refused  to charge that  such a fact, if  found true, would          exonerate defendant.  The Second Circuit agreed, holding that the          defendants "would  still  be considered  in  the chain  of  legal          causation if the immediate cause of  death -- setting a bomb as a          booby trap  -- was  a  foreseeable protective  reaction to  their          criminal  efforts to  locate and  dissuade him  from testifying."          The court,  in discussing another  issue, even  referred to  "the          murder of LaPolla [the victim]."  Id. at 755. The questions asked                                            __          did not mischaracterize the conviction in any significant way.               Defendant  presents four  other  issues of  this nature  but          either the objections  were sustained or  no objection was  made;          all are insubstantial.               3.  Limiting examination and refusing offer of proof.                   ________________________________________________               From  two  days  of  his  cross-examination  of   O'Donnell,          spanning 174 pages of transcript, defendant distills two asserted          errors.  One  rises out of a specific limitation on further cross          by  the  court  that  prevented  defendant  from  inquiring  into          O'Donnell's misreading of a  telephone number -- to show  that he          might also have misread  a gesture defendant had  made.  This  is          obviously within the discretion of the court.                                           -8-               The  second was merely a  final limitation of  one more hour          (instead of two), and  subsequent 20 and 5 minute warnings.  When          defendant wished to  make an  "offer of proof"  of the  remaining          questioning he wished to do (which would have centered on missing          or  defective tapes), the  court refused.   We cannot contemplate          how  such actions, after two days of cross examining one witness,          could be held an abuse of discretion.               A final  asserted error was the  ruling preventing defendant          from  telling about another armored truck fantasy he had told the          detectives,  to prove he was  just a storyteller.   There already          were  quite enough  of  these to  allow  defendant to  argue  his          version.               4.  Directing court reporter to read her notes of tape.                   __________________________________________________               After the jury reported  to the court that a  tape recording          was  inaudible, the court told  the jury to  make another effort.          Then, following a  subsequent request  from the  jury, the  court          ordered  the court reporter to  read her notes  made earlier from          the  recording.    After  she concluded,  counsel  for  defendant          objected, saying that he  had been comparing what was  being read          with   the    transcript   of   the   tape,    and   found   some          misidentifications.  He mentioned that at one point  the reporter          attributed  some of  the detectives'  statements to  one  or both          defendants.               It is of course the case that the tapes, not the transcript,          constitute evidence.  United States v. Richman, 600 F.2d 286, 295                                _____________    _______          (1st Cir.  1979).  But it is within a judge's discretion to allow                                         -9-          a  reporter to read back testimony, United States v. Akitoye, 923                                              _____________    _______          F.2d  221, 226 (1st Cir. 1991), and  such principle would seem to          apply  here.  In  any event, we see  no possibility of prejudice.          O'Donnell   had  testified  extensively   about  the  events  and          conversations  on the evening of  June 29-30, the  subject of the          tape recording.  Defendant  has pointed to no discrepancy  in the          courtreporter's reading of her notes that could have damaged him.               5.  Dismissal of two jurors.                   _______________________                During  the trial,  on April  7, 1995,  defendant's counsel          became  ill.   When  it  was  apparent that  the  trial  would be          suspended for an additional week, the court was informed that two          jurors had prepaid for vacations that were scheduled to begin the          week when trial would resume.  The court announced to counsel for          all  parties in a telephone conference call that the jurors would          be excused.   There was  no objection.   Defendant claims  not to          have known of this action until shortly before trial resumed.               Defendant first  argues that a  scheduled vacation is  not a          legitimate reason to  excuse a juror, under Fed. R.  Crim. P. 24.          Under the circumstances, this was  within the sound discretion of          the court, United  States v.  Corsino, 812 F.2d  26,33 (1st  Cir.                     ______________     _______          1987),  and  in any  event this  issue was  not presented  to the          court.               A second argument is that defendant himself was not involved          in the telephone conference.   While a party must  be represented          by  counsel in such conferences, there is no constitutional right                                         -10-          to be present when dismissal of a juror is discussed.  See United                                                                 ___ ______          States v. Brown, 571 F.2d 980, 986-87 (6th Cir. 1978).  There was          ______    _____          no error in dismissing these jurors.               6.  Composition of grand and petit juries.                   _____________________________________               Defendant moved to dismiss the  indictments in this and  the          felon-in-possession  case for  failure  to comply  with the  Jury          Selection  and Service Act of  1968, 28 U.S.C.     1861-1878 (the          Act), and the Fifth and Sixth Amendments, and to stay proceedings          until valid petit juries could be drawn.  After hearing argument,          the court refused to  hold an evidentiary hearing and  denied the          motion.  Defendant raises four issues.                    a.  Delay.    Defendant  claims that  delay  in  making                        _____          available  to him  jury information  denied him  due  process and          equal  protection.    Although   the  Magistrate  Judge   granted          defendant  access to the master jury wheel and the qualified jury          wheel in October,  1994, this did not result in  any action until          February 17, 1995,  when the court, after a  conference requested          by defendant, ordered both wheels to be delivered to defendant.               At a  hearing on  February  28, defendant,  who had  already          received  the district's  jury plan  and the  two wheels,  sought          juror  questionnaires and  computer  programs used  to achieve  a          random  pick.  The court granted access to defendant's counsel to          examine the  questionnaires.  Defendant sought  thirty additional          days in which to prepare his motion to dismiss; the court granted          twenty-three days.  No  request for additional time was  made and          no showing was made of additional information needed.                                           -11-               The  court  ruled  that  defendant had  sufficient  time  to          examine the  material, noting that further  analysis was unlikely          to lead to new information.   We think this judgment well  within          the court's discretion.                    b.  Limiting  access  to  materials.    At  a  pretrial                        _______________________________          conference on March 22,  1995, defendant sought computer programs          used  to  select the  master  and qualified  jury  wheels, names,          addresses,  and  telephone  numbers  of  computer  operators  and          programmers, documents  used to  process juror  questionnaires, a          copy of  the petit  and grand  jury venires,  and  the names  and          townships of the  grand jurors who returned  the two indictments.          The  court, after noting that  production of records  used by the          clerk  in  the  jury selection  process  is  limited  to what  is          necessary to prepare a motion asserting a  substantial failure to          comply with the Jury  Selection and Service Act, see  28 U.S.C.                                                             ___          1867(d),  denied  the request,  holding  that  defendant had  not          submitted a  sufficient basis for production  of these additional          materials.                 Defendant argues  on appeal that his figures  had revealed a          flaw in the randomness of Yale's computer program, which was used          to develop the  master and qualified wheels.   As an  example, he          points out  that Providence  citizens comprised 13.46  percent of          the names  on  the master  wheel  but only  8.59  percent of  the          qualified  wheel.   He  contends that  this discrepancy  demanded          further  inspection, particularly  in light  of past  glitches in          Yale's  computer  programming  that  resulted  in  the   complete                                         -12-          exclusion of  persons from the large communities  of Hartford and          New  Britain   from  the   qualified  wheel  and   master  wheel,          respectively.  See  United States  v. Jackman, 46  F.3d 1240  (2d                         ___  _____________     _______          Cir. 1995); United States  v. Osorio, 801 F. Supp.  966 (D. Conn.                      _____________     ______          1992).               Such  a showing  falls far  short of demonstrating  a likely          substantial noncompliance  with the  Act.  Unlike  the situations          described  in   Jackman  and   Osorio,  substantial   numbers  of                          _______        ______          Providence  citizens were  on  both  lists.    In  light  of  the          considerable information already made available  to defendant and          the  extensive memorandum  and exhibits  that he  filed with  his          motion  to dismiss, the defendant bears  a considerable burden of          justifying what would  amount to both a considerable intrusion on          people's work  and  time and  substantial  further delay  of  the          trials.    The court  did not  abuse  its discretion  in refusing          further inspection.   See United  States v.  Davenport, 824  F.2d                                ___ ______________     _________          1511, 1514-15 (7th Cir. 1987).                    c.  Evidentiary hearing.   Defendant charges  the court                        ___________________          with error in denying him an evidentiary hearing on his motion to          dismiss the indictments.  Under 28 U.S.C.   1867(d), if  a movant          submits  a sworn statement asserting facts  which, if true, would          impeach  the jury selection process,  he may present testimony of          the clerk or jury commission.  The district court, in denying  an          evidentiary hearing, referred at one point to the lack of an oath          before a notary public.   But defendant had signed  his statement                                         -13-          "under penalty of perjury," which is sufficient under 28 U.S.C.            1746.4               The  court,  however,  also  noted   this  circuit's  strict          adherence to "the  gatekeeper prerequisites" of    1867(d).   See                                                                        ___          United States v. Foxworth, 599 F.2d  1, 3 (1st Cir. 1979); United          _____________    ________                                  ______          States v.  Marrapese, 610 F. Supp.  991, 996 (D. R.I.  1985).  It          ______     _________          went on to  hold that  the "purported affidavit  is nothing  more          than  a  generalized  recitation  of   self-serving  conclusions,          speculation and conjecture."               Our reading  of the affidavit confirms  this conclusion; its          most salient statements assert discrimination against non-whites,          poor,  and certain minorities, and that  the master and qualified          wheels were skewed to underrepresent such classes.  But defendant          argues that his affidavit refers to "data he  has supplied in the          attached Motion to Dismiss" and that the motion to dismiss refers          to "the accompanying Memorandum of Law."   The memorandum, signed          by defendant, consists  of seventeen pages and derives  the facts          it relies on from an appendix of sixteen pages of tables and nine          pages of graphs.  The tables, with no indication of source, break          down  the population of the various towns and cities into various          categories: income, non-white,  occupation, education,  language,          ancestry.   Pages  of  data from  the  1990 census  extend  these                                        ____________________               4  28 U.S.C.   1746 reads in relevant part, "Wherever . .  .          any matter is required . . . to be supported . . . by the sworn .          . . statement, . . . such matter may, with like force and effect,          be supported .  . . by the unsworn statement,  in writing of such          person  which  is subscribed  by him,  as  true under  penalty of          perjury . . . ."                                         -14-          classifications to include employed females, households receiving          public assistance, and persons over 65 possessing no vehicle.               The entire package is so unfocused, so often irrelevant, and          so  seldom tied  to verifiable  sources that  to declare  that it          should be considered as integrated with and incorporated into the          affidavit,  the  only  document  that vouches  for  truth,  would          undercut the whole purpose of  the requirement of   1867(d):   to          enable  a court  to review  a challenge  to jury  composition and          "swiftly dispose of it if it  fails."  Marrapese, 610 F. Supp. at                                                 _________          996 (quoting  legislative history).  See also  Foxworth, 599 F.2d                                               ___ ____  ________          at 3.                We therefore do not fault the  court for its ruling.  But we          also  note that defendant was  not, in all likelihood, prejudiced          by  the ruling.   The court  heard a  fairly detailed  summary of          expected testimony from the clerk and an extensive offer of proof          of  defendant's  expert,  a  candidate  for  a  Ph.D.  degree  in          statistics and applied mathematics.  In addition, it had read all          of the motion papers, the memorandum, and the appendix.                 d.  Fair cross-section.    Defendant's substantive  claim is                   __________________          that  non-whites   and   lower   economic   classes   have   been          systematically  excluded  from  the  jury  selection  process  in          violation  of the Sixth Amendment.   Defendant contends that this          underrepresentation results  inherently  from reliance  on  voter          registration  lists,  magnified  further  by   program  error  or          malfeasance.  In support of his theory, he cites data specific to          Providence,  which  has  a  non-white  population  of  nearly  30                                         -15-          percent:    the  city  contains  15.72  percent  of  the  state's          population of 18 and over, yet accounts for only 14.25 percent of          registered  voters, 13.46  percent  of citizens  included in  the          master wheel, and 8.59 percent of those in the qualified wheel.               In order  to make out  a prima  facie violation of  the fair          cross-section requirement of  the Sixth Amendment,  the defendant          must  show  (1) that  the group  allegedly underrepresented  is a          distinctive group  in the community, (2)  that its representation          in the  venires from  which  juries are  chosen is  not fair  and          reasonable in relation to the total number of such persons in the          community,  and  (3)  that  such  underrepresentation stems  from          systematic  exclusion  of  the  group  from  the  jury  selection          process.  Duren v. Missouri, 439 U.S. 357, 364 (1979).                    _____    ________               The  district court  assumed that  the first  requirement --          distinctiveness  --  was  met as  to  non-whites  and  low income          persons.  We also assume the point.  In moving on to the issue of          fair and reasonable  representation, we  must reject  defendant's          first proposition cited above.   An assault on voter registration          lists  must   be  based  on  something  more   than  the  general          observation that  non-whites and  low income  people may  tend to          register to vote much less than more affluent or white people do.          Davenport, 824 F.2d  at 1514-15.   Nor do "numerical  disparities          _________          resulting  from the use of voter-registration lists . . . violate          a defendant's Sixth Amendment rights."  United States v. Ireland,                                                  _____________    _______          62 F.3d 227, 231 (8th Cir. 1995).                                         -16-               When   we   further    consider   defendant's    statistical          presentation, we  recognize a  significant problem:   rather than          count non-whites and low income people on the  voter registration          lists,  and the master and  qualified jury wheels, defendant uses          Providence as a surrogate for  both groups.  Defendant's  premise          is  somewhat appealing,  but we  are not  convinced that  such an          approach is permissible.   Non-whites and  low income people  may          very well be  fairly represented  in both wheels  whether or  not          Providence  is.   And we have  the further  doubt created  by the          absence of information concerning the  proportion of Providence's          non-white (or  for that matter  its low income)  population which          has registered to vote.               But if we overlook these questions, we still face the facts,          as  did the district  court, that the  absolute disparity between          Providence's representation  in the  voter registration  list and          that in the master jury wheel is .79% (14.25% - 13.46%); and that          the absolute disparity  in its representation in the  master jury          wheel and  in the qualified jury wheel is 4.87% (13.46% - 8.59%).          Even  the broadest  potential  comparison,  between  Providence's          representation in the state's  population of 18 and over  and its          representation in  the qualified  jury wheel, yields  an absolute          disparity of only  7.13% (15.72% - 8.59%).   As we recognized  in          Hafen, 726 F.2d at 23, absolute disparities of up to ten  percent          _____          are widely conceded not  to constitute underrepresentation.5  See                                                                        ___                                        ____________________               5   Absolute disparity  measures the difference  between the          percentage of a distinctive group in a certain population and the          percentage of that group in a subset of that population.   In the                                         -17-          also Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992)  (14.1%          ____ _______    _____          "borderline");  United States  v. McAnderson,  914 F.2d  934, 941                          _____________     __________          (7th  Cir. 1990) (8%  is de minimis); United  States v. Pepe, 747                                                ______________    ____          F.2d 632, 649 (11th Cir. 1984) (7.6% "well within . . . limits");          United States v. Butler,  611 F.2d 1066, 1069-70 (5th  Cir. 1980)          _____________    ______          (under 10% permissible).               We see no reason to depart from this standard.   We think it          strikes   a   correct   balance   between    avoiding   egregious          discrimination and becoming  enmeshed with statistical approaches          aimed at unrealistic fine tuning.               As for Duren's third  prong, the requirement that systematic                      _____          exclusion  be   shown,  we   have  already  ruled   out  reliance          simpliciter on voter registration  lists.  What would have  to be          ___________          demonstrated  would   be  either  "the  use   of  suspect  voter-          registration qualifications or  discriminatory administration  of          the jury-selection procedure."   Ireland,  62 F.3d at  232.   But                                           _______          voter  qualification has never been in issue and the only showing          concerning creation of the qualified  wheel from the master wheel          is  defendant's offer of proof that a court officer would testify          that  persons were selected at random.  Defendant also raises the          possibility of abuse because names are drawn for new venires from                                        ____________________          jury  selection context,  this  figure is  generally achieved  by          subtracting the  percentage of a group on the jury wheel from the          percentage of that group  in the community.  Joost  has suggested          alternative  methods,   but  the   absolute  disparity  test   is          appropriate where, as here, the allegedly  underrepresented group          constitutes a very small proportion of the total population.  See                                                                        ___          United States  v. Pion, 25  F.3d 18, 23  (1st Cir. 1994);  United          _____________     ____                                     ______          States v. Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984).          ______    _____                                         -18-          a  stable  qualified  list,  and someone,  sometime,  could  make          improper  use  of such  a  list.    This  is  too  remote  to  be          substantial.               In  short,  the  challenges  to  the  juries  were  properly          dismissed.                7. Propriety of Instructions.                  _________________________               Defendant lodges  seven claims  of error in  instructing the          jury.  Only three merit specific treatment.                    a. The first contention, that the court refused to give          an  instruction on the intent necessary to violate the Hobbs Act,          is somewhat mystifying.  Defendant states in his reply brief that          both an intent to  agree and an  intent to execute the  agreement          are necessary.  But  he acknowledged that he was  writing without          access to the record.  In fact, the  precise instruction he seeks          was given by the court.                    b. Defendant  charges error in the  court's instruction          that  the jury  could consider  his  invocation of  the privilege          against self incrimination in evaluating  his testimony.  A court          may  instruct a  jury to go  further than  the court  did in this          case, i.e.,  that the jury could draw  an adverse inference.  See                                                                        ___          Caminetti  v. United  States,  242 U.S.  470, 494  (1917); United          _________     ______________                               ______          States v. Kaplan, 832  F.2d 676, 684 (1st Cir. 1987).   Defendant          ______    ______          has  confused a  situation where,  as here,  a person  (whether a          party  or a non-party witness)  invokes the Fifth  Amendment on a          matter  relevant to the issues before the court and the situation          where  a person invokes the  privilege when asked  about a matter                                         -19-          wholly beyond the scope of the issue at hand, as in United States                                                              _____________          v. Nunez, 668 F.2d 1116, 1122-23 (10th Cir. 1982).             _____                    c. The court charged that  factual impossibility, which          occurs "when extraneous circumstances  unknown to the Defendant .          . .  prevent the consummation  of the  intended crime," is  not a          defense.  Defendant claims  that this was not applicable  because          he knew  at the  time  that the  armored car  was  not stored  in          Woonsocket.  But the jury need not have believed him.                    d. The  other challenges to instructions  are even less          weighty.   As  to two,  there was  no objection raised  after the          instructions.  As  for the court  referring to  Tracy as both  an          informant  and  an  accomplice,  the status  of  informant  alone          justified the charge.  And the charge as a whole left no doubt as          to the law that defendant was accused of violating.                                         -20-               8.  Violation of Rule 30.                   ____________________               Fed. R. Crim.  P. 30  requires that opportunity  be given  a          party to object to an instruction out of the hearing and presence          of  the jury.  As noted above,  the jury twice requested that the          court reporter read the notes that she made from the June 29 tape          recording.  On the first occasion, the court told  the jury first          to listen  to the tape and that, if necessary, the reporter could          later read  her notes.  When  asked if he had  any "problem" with          that,  counsel for defendant stated  that the tape,  not what the          reporter heard, was  the evidence.  When the jury made its second          request for the reporter's  notes, the court asked counsel  if he          wished to  say anything.   Counsel stated  that he  had the  same          objection.   When the jury retired,  counsel moved unsuccessfully          for a mistrial on the ground that Rule 30 had been violated.               The government  argues that Rule 30 is not applicable, since          the court was not giving any  instructions on the law, but merely          making a  trial ruling such  as requiring a  witness to  answer a          question.   We agree.   The entire focus  of the  rule is on  the          instructions  on the  law given by  a judge  at the  close of the          trial.  The objection addressed  by the rule is one made  to "any          portion  of the charge or  omission therefrom."   The incident at          issue here was not within the compass of Rule 30.                9.  Playing excerpts of tapes.                   _________________________               Many tape recordings were made  of defendant's conversations          with the detectives.   Excerpted portions of eight of  these were          allowed  to be  played to  the jury.   Defendant objected  to the                                         -21-          playing  of each  tape, usually  on three  grounds: authenticity,          defective chain of custody, and lack of completeness.  He did not          elaborate  on  his  objections,  nor did  he  suggest  additional          portions  that should be played.   He now  asserts that he wanted          the jury  to hear how the  conversations led up to  the excerpted          portions,  so  that  the  jury  would  see  that  discussions  of          particular  robberies  were just  part of  "a larger  plethora of          stories  Joost was  telling  the  agents  and  that  he  was  the          _______          consummate prevaricator."               Fed. R.  Evid. 106  allows a party  to supplement part  of a          recorded statement when the additional portion "ought in fairness          to be considered contemporaneously with it." The trial court must          have discretion  to conduct  what "essentially[] becomes  a line-          drawing exercise, to be  conducted case by case."   United States                                                              _____________          v. Boylan, 898 F.2d 230, 256 (1st Cir. 1990).  When confronted by             ______          flat opposition to playing  any excerpts of eight  time consuming          tapes,  the court can hardly  be faulted for  not attempting more          sensitive editing.               10. Refusal to recuse sua sponte.                   ____________________________               Although defendant  made no motion for  the judge's recusal,          he contends  that 28  U.S.C.   455  required the judge  to recuse          herself sua sponte based on an ex parte conference with him.  The          underlying circumstances  involved the  judge's role,  before her          appointment to the bench,  as Disciplinary Counsel for the  Rhode          Island  Supreme Court.  During the judge's time in that position,          one  Freda  Salisbury  filed  a complaint  against  an  attorney.                                         -22-          Defendant informed the court at the conference that Salisbury was          his mother.   According to  defendant, Salisbury had  harsh words          with someone in the Disciplinary Counsel's office.  The complaint          was  dismissed and defendant spoke  to someone unknown  to him in          that office,  making strong  criticisms of both  the Disciplinary          Counsel and the process.                 This case was  first assigned to  another judge.   Defendant          goes beyond  the record to  assert that  the judge who  heard the          case "had this case reassigned to herself  . . . in order to seek          retribution  against  [defendant]  for  accusations he  had  made          against her . . . ."  He charged at the ex parte hearing that the          reassignment followed  "the same pattern  of underhandedness  and          harassment [that] has continued since 1963. . . ."                 The record  reveals  no indication  that the  judge had  any          prior knowledge that Salisbury  was defendant's mother.  Nor  was          there  any indication  that the  judge recalled  any conversation          with  defendant.   To argue  that the  judge should  have recused          herself sua  sponte on  the assumption  that a  reasonable person          would think  that she had  schemed to  have a case  reassigned in          order  to  obtain  revenge  based  on  a  long  since  terminated          disciplinary proceeding,  or that she willingly  joined a thirty-          two year old conspiracy, is too fanciful for further comment.               11 - 13.  Miscellaneous challenges.                         ________________________               Several alleged errors are so insubstantial that they may be          quite  summarily addressed.    Number 11  is  that a  motion  for          mistrial should have been granted based on a ten-day delay in the                                         -23-          trial occasioned by the collapse and medical treatment of defense          counsel.  The court's narration of the sequence of events and the          considerations underlying the  delay completely  persuades us  of          the propriety of her decisions.                 Number 12  attacks  a conference  between  the judge  and  a          juror, when the juror refused to reenter the jury  room.  Whether          or not all counsel agreed that the judge should confer alone with          the juror  -- as  the government contends,  with some  confirming          indication in the  record -- it  is clear that  no objection  was          voiced when the  court reporter  read to counsel  the judge's  in          camera  conversation with  the juror.   Although  defense counsel          filed  a post-trial  affidavit  saying that  the  juror had  been          coerced  by other jurors, there was no evidence of any extraneous          influence  and the juror  herself did not  contact the  court.  A          jury  verdict is not so  easily impeached.   See United States v.                                                       ___ _____________          Norton,  867 F.2d  1354, 1366  (11th Cir.  1989).   There was  no          ______          error.               No. 13 alleges ineffective assistance of counsel, but, as we          have often held, where the record,  as here, does not contain all          the  relevant  facts, direct  appeal is  not  the route.   Absent          "extraordinary circumstances," the proper  vehicle is 18 U.S.C.            2255.  United  States v. Bergodere,  40 F.3d  512, 517 (1st  Cir.                 ______________    _________          1994).               14.  Refusal of personal voir dire.  Appellant alleges error                    _____________________________          in the court's  refusal of  his request to  voir dire  personally          prospective  jurors.  Local Rule 15 provides that at the close of                                         -24-          examination  of  jurors by  the  court, "the  court  shall afford          counsel  an  opportunity  to  further  interrogate  the  jurors."          Although a pretrial order had required each side to submit a list          of  all  questions  that  the  court  was  requested  to  ask  of          prospective  jurors, defendant did not  submit such a  list.  The          judge conducted  the questioning herself  and, at the  end, asked          defendant for  additional suggestions.  He  offered four: whether          prospective jurors would be  prejudiced if they heard disparaging          remarks  about the  police,  whether they  would  be offended  by          obscene remarks,  whether they understood and  respected the role          of  a  pro  se litigant,  and  whether  they  would be  adversely          affected if they knew a defendant had a criminal record.               The court  correctly refused the last  instruction, since it          was  not then clear that prior criminal records would be admitted          into  evidence.   It had  interrogated a  number of  jurors about          their knowledge of and  relations with law enforcement personnel.          While not  in  the precise  form  advocated by  defendant,  these          questions  accomplished  roughly  equivalent inoculation  against          adverse reaction  to disparagement.  The court  gave a respectful          and  fair instruction about pro  se representation.   What it did          not  give  was  any   instruction  concerning  possible   adverse          reactions to obscene language.                 It may  well  be that  the court  reasoned that  defendant's          failure to submit a  list of suggested questions stripped  him of          the  privilege  afforded by  Rule 15.   The  government, however,          proffers no reason for noncompliance with a rule that is facially                                         -25-          mandatory.   And  defendant  justifiably cites  United States  v.                                                          _____________          Diaz-Villafane,  874 F.2d  43, 46  (1st Cir.  1989) ("Once  local          ______________          rules have  been promulgated, lawyers  and their  clients have  a          right  to place  reasonable reliance  on them.")   But  we simply          cannot  find  that  lack  of  a  question  addressed  to  jurors'          reactions to obscenity          mandates reversal.  In the  context of the entire case  the error          was harmless.               15.   Cumulative  errors.   Appellant  argues  that even  if                     __________________          individual errors do not  mandate reversal, the cumulative impact          of a  number of errors does.   But our analysis  reveals, for the          most part,  an absence of error.   The few instances  in which we          have  invoked   harmless  error  fall  far   short  of  revealing          "pervasive unfairness or any error or combination  of errors that          deprived  the  defendant[]  of  due process,"  United  States  v.                                                         ______________          Brandon, 17 F.3d 409, 456 (1st Cir. 1994).          _______               16. Sentencing Guideline issues.                     ___________________________                    a. Defendant first argues that his offense level should          have been determined by U.S.S.G.   2B3.1, the robbery  guideline,          instead of   2X1.1, the conspiracy guideline.  He claims that the          former does not permit added adjustments for intended  conduct --          several of which were imposed by the  district court -- while the          latter explicitly  allows adjustments  "for any  intended offense          conduct that can be established with reasonable certainty."               Section 2X1.1(c)(1)  specifies  that when  a  conspiracy  is          expressly  covered  by  another  guideline  section,  the   other                                         -26-          guideline should be applied rather than   2X1.1.  In this case we          deal with a Hobbs Act  conspiracy under 18 U.S.C.   1951.   Until          November 1,  1993,  U.S.S.G.     2E1.5 (Hobbs  Act  Extortion  or          Robbery) signalled that a violation of 18 U.S.C.   1951 should be          governed by   2B3.1.               This guideline  was deleted as of November 1, 1993, however,          leading the Second  Circuit in  United States v.  Amato, 46  F.3d                                          _____________     _____          1255, 1261 (1995), to  conclude that "[t]he deletion of    2E1.5,          with its cross-reference to   2B3.1, deletes the provision of the          Guidelines that  provided the `express' reference  making   2X1.1          inapplicable."  We agree  with  this conclusion,  and reject  the          earlier  cases  cited by  defendant.   The  bare reference  to 18          U.S.C.     1951,  along  with  several  other  statutes,  in  the          "Statutory Provisions" section of the Commentary in    2B3.1 does          not  rise to the level of constituting express coverage.  We also          reject defendant's argument that  Amato involved a faulty reading                                            _____          of the significance of the deletion of   2E1.5.               This  determination  forecloses  defendant's  argument  that          adjustments for specific offense conduct were impermissible  here          because they are not allowed under   2B3.1.                    b.     Defendant  challenges  the  sufficiency  of  the          evidence  for several adjustments to the base offense level.  The          first such issue arises from the court's action in increasing his          offense level by six  levels for the intended  use of a  firearm,          which was, although  not discharged,  to be  "otherwise used"  as          opposed    to   "brandished,    displayed   or    possessed."                                             -27-          2B3.1(b)(2)(B).  It  is clear from  the taped conversations  that          defendant instructed  the detectives about the  possible need for          guns  to threaten  and perhaps  shoot guards  at the  armored car          facility.  Moreover, the  very robbery envisaged would inherently          involve the likelihood of confrontation  with guards and the  use          of weapons.  There was no error in making this adjustment.               A  similar  set  of  circumstances justified  the  court  in          imposing a  two-level increase  for restraining a  person in  the          commission of the offense under    2B3.1(b)(4)(B).  Defendant had          outlined  how  a guard  would  be caught,  handcuffed,  and mouth          sealed with  duct tape.  Restraint of some such fashion was to be          expected in the type of robbery contemplated.               The   court  also  imposed  a  six-level  enhancement  under          U.S.S.G.    2B3.1(b)(6)(G) to  reflect an intention  to inflict a          loss  between $2.5 million and $5 million.  The vice-president of          the  Meehan Armored Car company  testified that the  value of the          various  precious  metal   shipments  stored  overnight  in   the          Woonsocket  facility  averaged  $5   million.    These  were  the          materials that the guards would pick up at 3 a.m. for delivery in          New York City.  Defendant would require proof of the  exact value          of  the shipment  on  a given  day.   But  his  planning did  not          pinpoint a date  certain.  The  court was  well within reason  in          basing the enhancement on the range it chose.  Defendant fares no          better in  his equal  protection argument  based  on the  court's          finding  that  codefendant  Grelle's  sentence  should reflect  a          smaller amount.  Grelle's situation was different; the jury could                                         -28-          not,  after all, reach  a verdict as  to him; the  sentences were          truly individualized, reflecting differences in knowledge.                A  five-level  increase for  bodily injury  was sufficiently          founded  on   record  statements   by  defendant;  it   does  not          necessarily  overlap with  the  enhancement based  on  restraint,          since different actions could be taken against the two guards.  A          two-level enhancement for obstruction of justice was based on the          court's conclusion  that defendant's testimony was  false.  While          defendant maintains that he was just an accomplished prevaricator          in his talks  with the detectives, he obviously ran the risk that          he would be considered by judge and jury a prevaricator about his          alleged prevarications.                    c.   Factual  Impossibility:  a  bar  to  enhancements?                         __________________________________________________               Defendant argues that even if factual impossibility is not a          defense to conspiracy, enhancements should not be imposed because          the  substantive offense could not have occurred.  His attempt to          distinguish  United States v.  Chapdelaine, 989 F.2d  28, 35 (1st                       _____________     ___________          Cir.  1993), which  involved an  attempted robbery  that misfired          because the putative robbers arrived after their target truck had          left, does  not carry the day.  In both Chapdelaine and this case                                                  ___________          the  defendants  were  convicted   of  conspiracy,  and  in  both          completion of  the  planned  action had  in  fact  been  rendered          impossible.   That no witness contradicted  defendant's testimony          that he knew that the armored car had left the facility is of  no          consequence; his  conviction stemmed from the  jury's belief that          he intended to commit the robbery.                                          -29-                                         -30-                                      CONCLUSION                                      CONCLUSION               In sum, we have carefully surveyed all of the arguments that          defendant  has vigorously  and  thoroughly made.   The  trial and          associated  proceedings were  both complex  and demanding  on all          concerned.   But while undoubtedly not perfect, the trial met the          basic standard of fairness.   The judgment is accordingly               AFFIRMED.               ________                                         -31-
