
USCA1 Opinion

	




          February 8, 1996                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 95-1140                                    UNITED STATES,                                      Appellee,                                          v.                                 LAWRENCE M. LANOUE,                                      Defendant.                                     ____________                                     ERRATA SHEET               The  opinion of this court  issued on December  15, 1995, is          amended as follows:               Cover Sheet:  Change "Defendant." to "Defendant, Appellant."        January 11, 1996    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1140                                    UNITED STATES,                                      Appellee.                                          v.                                 LAWRENCE M. LANOUE,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The  opinion  of  this  Court  issued  on  December  15,  1995, is        corrected as follows:            On page 13, line 21 -  delete "0" at the beginning of the line.            On page 46, line 3 - insert the word "doubt" between  "reasonable"        and "that".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1140                                    UNITED STATES,                                      Appellee.                                          v.                                 LAWRENCE M. LANOUE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            David L. Martin, for appellant.            _______________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon  Whitehouse,  United States  Attorney,  and  James H.  Leavey,        ___________________                                  ________________        Assistant United States Attorney, were on brief for appellee.                                  ____________________                                  December 15, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.  Appellant   Lawrence                      BOWNES, Senior Circuit Judge.                              ____________________            M. Lanoue  (Lanoue) appeals his convictions  and sentence for            interstate  transportation  of  a  stolen  motor  vehicle, 18            U.S.C.     2312 (Count  V),  interstate  transportation of  a            firearm with an obliterated serial number, 18 U.S.C.   922(k)            (Count  VI), and  conspiracy to  commit federal  offenses, 18            U.S.C.   371 (Count I).  Lanoue contends that he is  entitled            to  a new trial on all counts  because the trial court abused            its  discretion by  refusing to  declare a mistrial  when the            government  cross examined  a  critical defense  witness with            Lanoue's own statements  which were intercepted  in violation            of  Title III of the  Omnibus Crime Control  and Safe Streets            Act, 18 U.S.C.     2510-2521 (Title  III), and then  withheld            from  him  in violation  of  Fed.  R. Crim.  P.  16(a)(1)(A).            Lanoue also contends that  there was insufficient evidence to            convict  him of  Counts I  and VI,  and that the  trial court            improperly enhanced  his sentence  based on conduct  of which            the jury had acquitted him.                      We vacate Counts I  and V and remand them for a new            trial, affirm Count VI, and  order a sentence on Count VI  of            60 months imprisonment.            I.        BACKGROUND            I.        BACKGROUND                      A.   Relevant Facts                        A.   Relevant Facts                             1.   The Government's Case                                         -2-                                          2                      The government's theory  at trial  was that  Lanoue            and  his  co-defendant  Albert   Cole  (Cole)  stole  a  1986            Oldsmobile  Firenza, and  that  they and  their  co-defendant            Patrick Meade (Meade) used the car in an attempted robbery of            an  armored car  courier.   The  government's case  consisted            primarily of  the testimony of fourteen  of the approximately            fifty  FBI agents and Rhode  Island State police officers who            conducted a massive land and  air surveillance of Lanoue  and            the Oldsmobile and assisted in his arrest.                        On December  17, 1993, eight FBI  agents attached a            tracking device to  a 1986 Oldsmobile Firenza located  in the            lot   of  American   International   Leasing  in   Worcester,            Massachusetts.  On December 19, 1993, Lanoue and Cole brought            the  Oldsmobile  to a  farm in  Pascaog,  Rhode Island.   The            farm's owner, Kenneth Gareau (Gareau), was a friend of Cole's            who  repaired  cars.   He testified  that  Cole asked  him to            repair  the front end, that  he said he could get  to it in a            week or so, that it "looked like" Cole took the license plate            off the Oldsmobile and put it in the trunk, and that Cole and            Lanoue then departed.                        American   International   Leasing   reported   the            Oldsmobile stolen  on December  21, 1993.   Agents conducting            surveillance from an airplane observed Lanoue and Cole return            to the  farm on the morning  of December 23,  1993, and drive                                         -3-                                          3            the   Oldsmobile   to   the   Ames   Plaza   in   Bellingham,            Massachusetts, where they met Meade.                      While the  defendants were parked  between a  pizza            parlor and a liquor store in a lot adjacent to  the Ames lot,            an unmarked armored car, that appeared to be an ordinary Ford            Aerostar van, parked  in front  of the main  entrance to  the            Ames store.  A  uniformed courier exited the van  and entered            the Ames store.  Several minutes later, Lanoue and Cole drove            from the adjacent lot to the Ames lot and parked.  Lanoue was            arrested as he walked  towards the main entrance of  the Ames            store.   He had  a loaded  38 caliber  Colt revolver  with an            obliterated  serial number  in  his waistband.    One of  the            arresting  officers testified  that Lanoue  immediately said:            "I am  Mitch.1  You got  me.  I am  gone for life.   I have a            piece."   Another testified that  when he asked  Lanoue where            the other vehicles  were, he stated:   "You know  everything.            That's why you're  here.  I  am here  alone."  Another  agent            testified that after Lanoue  was taken into custody he  said,            "I wonder  who the rat was  on this job."   And another agent            testified that Lanoue  said that  he would die  in prison  no            matter how long his sentence was because he was 72 years old.                      Cole was  arrested in the Oldsmobile,  which bore a            stolen  license plate.  The ignition was not "popped" and the            keys were in  it.  Meade was  arrested in his own  car on the                                            ____________________            1.  Lanoue was known as Mitch.                                         -4-                                          4            other  side of  the  lot with  a loaded  Smith and  Wesson 36            caliber revolver in his pocket.                                         -5-                                          5                           2.   The Defendant's Case                      Although  the  law  enforcement  witnesses  did not            offer to explain how they came to attach a tracking device to            the  Oldsmobile  and   follow  its  and   Lanoue's  movements            thereafter, cross  examination revealed that an informant had            provided FBI Agent Brosnan,  the case agent, with information            that Lanoue and others planned to steal the car and use it in            an armored car robbery.                        The  defense  theory  was  that  the informant  was            Richard Laraviere  (Laraviere), and that  the information  he            provided and  upon which  the  investigation and  prosecution            rested, was false.   According to the  defense, Lanoue bought            the Oldsmobile from Laraviere,  who then falsely informed the            FBI that Lanoue was planning  to steal the car and use  it in            an armored car robbery in order to obtain favorable treatment            on  theft charges pending against  him in Massachusetts.  The            defense suggested  that the  government was eager  to believe            Laraviere and assemble a small  army to arrest Lanoue because            Lanoue had been found not guilty in a case tried  by the same            prosecutor  in  1991.     The  defense  emphasized  that  the            government had  not called Laraviere to  testify, although he            was the only  witness who could  corroborate its theory  that            Lanoue stole the Oldsmobile.                        Lanoue testified and called Charles Carron (Carron)            as a witness  to corroborate  his own testimony.   They  both                                         -6-                                          6            testified in effect as follows.  On December 17, 1993, Lanoue            was  helping  Carron  remove   debris  from  his  house  when            Laraviere  arrived.   Laraviere was  a millionaire  who owned            real estate and  had once owned  a used car  dealership.   He            previously  had offered  to sell  Lanoue a  car which  Lanoue            declined  to buy.  On this occasion, Lanoue mentioned that he            wanted  to buy a car  for his daughter.   Laraviere responded            that one of his  tenants had abandoned an Oldsmobile  that he            wanted  to  sell and  said that  it  was located  at American            International Leasing in Worcester, which he implied he owned            or   partially  owned.      The  three   drove  to   American            International Leasing,  Laraviere obtained  the keys from  an            employee  there,  and they  took  the Oldsmobile  for  a test            drive.                        Carron testified that upon their return to the lot,            he observed Lanoue and Laraviere having a discussion and then            saw  Lanoue remove  money  from his  wallet  and hand  it  to            Laraviere.   Lanoue testified that he and Laraviere agreed on            a price of  $500, that  he gave Laraviere  a down payment  of            $200,  and that they agreed that Lanoue would pay the balance            and take the car on Sunday, December 19.                        Lanoue testified  that on December 19,  he and Cole            drove  to American International  Leasing in  Lanoue's truck,            that he paid Laraviere the $300 balance and then drove off in            the  Oldsmobile with  Cole following  in the  truck.   Lanoue                                         -7-                                          7            testified  that  as he  drove  the Oldsmobile  back  to Rhode            Island,  he noticed that  there was something  wrong with the            front  end.   He and  Cole therefore  took the  Oldsmobile to            Gareau  to  be repaired.   On  December  23, Lanoue  and Cole            picked  up the car  on the way  to the Ames  Plaza where they            planned to go Christmas shopping.  Lanoue soon found out that            Gareau  had not  worked on  the  car and  took it  to another            garage, but the person he wanted to look at it was not there.            He and Cole then proceeded  to the Ames Plaza where they  met            Meade.   As  Lanoue walked  towards the  Ames store  where he            planned  to buy  a  watch, he  was  arrested.   After  Lanoue            rested, Cole testified in his own behalf, confirming Lanoue's            account of events on December 19 and 23.                        Lanoue  testified   that  he  carried  a   gun  for            protection,  explaining  that his  life  had  been threatened            before  and that the police  had laughed when  he reported it            because he had a criminal  record.  Lanoue acknowledged  that            he had cleaned the  revolver, denied that he had  obliterated            its  serial number,  but did  not deny  that he  knew  it was            obliterated.   Lanoue admitted to stating, "I have a piece on            me," and  that when an  agent asked him  who was with  him he            responded that he was  alone, meaning that he was  alone when            he  was arrested.    He denied  making  the other  statements            government witnesses attributed to him.                                         -8-                                          8                      Lanoue  and Carron  also gave  testimony indicating            that  Laraviere provided  false information  in this  case in            order  to  gain  favorable  treatment  on  pending   criminal            charges.   Carron  testified that  Laraviere had  once stored            boating equipment in  his garage.  When  Carron later learned            that it was stolen, he reported it to the police, who removed            the property and told him that Laraviere had a reputation for            claiming that  property  he had  stolen  had been  stolen  by            someone else.                        Lanoue   testified  that  Laraviere  had  told  him            shortly  before his own arrest  that he had  been indicted on            fifty-seven  counts of  theft in  Massachusetts, and  that he            would soon  have to  begin  serving a  two-year sentence  for            those  charges  pursuant  to  a  plea,  unless  he  could  do            something to avoid it.  To that end, Laraviere offered to pay            Lanoue to frame the witness against him in that case.  Lanoue            testified  that he believed  Laraviere had  not gone  to jail            because  he  falsely  informed  the  government  that  Lanoue            planned to steal the Oldsmobile and rob an armored car.                      Carron testified  that he  had visited  Lanoue once            after  his arrest  while  Lanoue was  awaiting  trial at  the            Donald  W. Wyatt  Detention  Center in  Central Falls,  Rhode            Island.   Shortly  thereafter,  two FBI  agents  and a  state            police  detective visited  him,  refused to  leave his  home,            subpoenaed him  to testify at Lanoue's  trial, and threatened                                         -9-                                          9            that if he did not testify against Lanoue, they  would see to            it  that his  pension check  and his  girlfriend's disability            check or her job at the post office were taken away.                                         -10-                                          10                      B.   Proceedings Below                      B.   Proceedings Below                      Lanoue, Cole and Meade  were charged in a six-count            redacted  indictment.2   All three  were charged  in Count  I            with conspiracy to commit federal offenses, 18 U.S.C.    371;            in Count  II with  conspiracy to  interfere with  commerce by            robbery,  Hobbs  Act, 18  U.S.C.    1951;  in Count  III with            attempt to interfere  with commerce by robbery, Hobbs Act, 18            U.S.C.    1951; and  in Count  IV with  using and carrying  a            firearm during and in relation to an attempt or conspiracy to            commit  robbery,  18 U.S.C.     924(c)(1).   Count  V charged            Lanoue and  Cole with  interstate transportation of  a stolen            motor  vehicle, 18 U.S.C.   2312, and Count VI charged Lanoue            alone  with interstate  transportation of  a firearm  with an            obliterated serial number,  18 U.S.C.   922(k).   Counts III,            IV  and  V  also  charged  the  defendants  with  aiding  and            abetting.  18 U.S.C.   2.                      The trial began on October  24, 1994.  On  November            4,  1994, the jury  convicted Lanoue of  Counts I, V  and VI,            acquitted him of all  robbery-related charges, and  acquitted            his  co-defendants of  all charges.    On November  10, 1994,            Lanoue  moved for judgment of  acquittal on Counts  I and VI,                                            ____________________            2.  The  grand  jury  returned  the  original  indictment  on            January 5, 1994.   A redacted  indictment was filed  when one            count  was dismissed by the government with leave of court on            August 17, 1994.                                          -11-                                          11            which was denied on December 19, 1994.  On  January 13, 1995,            the court sentenced Lanoue to 175 months in prison.              II.       DISCUSSION            II.       DISCUSSION                      A.   The Discovery Violation                      A.   The Discovery Violation                      Lanoue  contends  that  his  convictions  should be            reversed because  the prosecutor  cross examined  Carron with            Lanoue's  own  recorded   statements  which  the   government            concedes  it failed to disclose in violation of Fed. R. Crim.            P.  16(a)(1)(A)  and the  pre-trial  discovery  order.   Rule            16(a)(1)(A) provides in relevant part:                      Upon   request   of   a   defendant   the                      government must disclose to the defendant                      and   make   available  for   inspection,                      copying, or photographing:   any relevant                      .  . .  recorded statements  made by  the                      defendant, or copies thereof,  within the                      possession,  custody,  or control  of the                      government,  the  existence  of which  is                      known,   or  by   the  exercise   of  due                      diligence  may  become   known,  to   the                      attorney for the government . . . .            The  trial  court's  pretrial  discovery  order  required the            government to  disclose "[a]ny  statements  of the  defendant            subject  to  disclosure  pursuant to  Rule  16(a)(1)(A)," and            "[w]hether the  government counsel's file indicates  that any            wire or  oral communications have been  intercepted."  Lanoue            contends that he was incurably prejudiced by the government's            use  of his  statements and  that the  trial court  therefore            erred in refusing to declare a mistrial.                                         -12-                                          12                           1.   Cross Examination of Carron with Lanoue's                                Recorded Statements                      Carron's  cross  examination  proceeded   in  three            parts.   On Thursday,  October 27, the  prosecutor opened the            first part by accusing Carron of threatening Laraviere:                      Sir,  didn't the FBI  tell you the reason                      they  were at  your premises  was because                      you threatened an informant in this case?                      Did   you   ever  threaten   Mr.  Richard                      Laraviere?                      You ever threatened [sic] anyone?            Carron  answered  "No"  to  each  of these  questions.    The            prosecutor attempted to impeach  Carron's denial by asking if            Lanoue  had told him that Laraviere was the informant in this            case,  if Lanoue  had  then demanded  that  he visit  him  in            prison,  and whether  he and  Lanoue had  discussed Laraviere            during  the visit.  Carron confirmed  that Lanoue had invited            him to visit him  in prison in August of 1994 and that he did            so,  but denied that  they had  discussed Laraviere.   Carron            exhibited a poor memory for dates, but otherwise held up well            during  this  part of  the  cross examination.    When Carron            stated that he could not  swear that he had known Lanoue  for            fifteen  years but was sure  he had not  known him for thirty            years,  the prosecutor  began reading  Lanoue's words  from a            document while, in the court's words, "brandishing" it at the            witness:                        Q    Did Mr. Lanoue ever tell you that he                           has known you for thirty years?                                         -13-                                          13                      A    No, he never did.                      Q    Did  Mr. Lanoue ever tell you not to trust the                           cops.   They  know  who the  informant is  and                           that's why he  wanted you to go  on August the                           twenty-first to meet him?                      A    No.                      Q    He  didn't tell you,  sir --  specifically, on                           August the 20th of 1994, did Mr. Lanoue say to                           you, "Let  me tell  you something.   You don't                           trust the  cops.   You should  know that.   We                           forced it out of them.  They got the informant                           from up north near the Worcester area"?                                Mr. Martin:  I object.                      A    I don't remember that.                      The  court  did  not  sustain  the  objection,  but            directed  counsel  to approach  the  bench.   The  prosecutor            admitted that he had been reading Lanoue's statements from  a            transcript of a recorded telephone  call that Lanoue had made            to  Carron from  the  Wyatt Detention  Center while  awaiting            trial, and that he had not disclosed it.  The court asked the            prosecutor  whether the  document corroborated  his questions            and he replied that it did.  Defense counsel objected to  the            use of  the conversation because the  government had withheld            it in violation of Fed.  R. Crim. P. 16 and the  court's pre-            trial discovery order, and requested a copy of the transcript            and a recess during which he could review it.  The prosecutor            argued  that defense counsel was not entitled to a recess and            that he was permitted to use the conversation  because Carron            had committed perjury,  it was retrieved in connection with a                                         -14-                                          14            separate investigation of  witness intimidation,  and it  was            not  the  fruit  of  a  wiretap.    The  court  directed  the            prosecutor  to  continue  his  cross  examination  on another            subject,  did  not  admonish  him, strike  the  questions  or            testimony, or give a curative instruction.                      Part two  of Carron's cross  examination proceeded.            In contrast to  his apparently confident answers in the first            part of  his cross examination, Carron  disavowed any ability            to fix a date or time period on any event, expressing concern            that  the   prosecutor  was  attempting  to   trap  him  into            committing perjury.   He backed away from important  parts of            his direct  testimony, for example,  now denying that  he had            actually  seen Lanoue  hand  Laraviere money  after the  test            drive.                       After  the  court  excused  the jury  for  a  lunch            recess, defense  counsel moved  for a mistrial,  arguing that            the prosecutor had violated Fed. R. Crim.  P. 16(a)(1)(A) and            the  pre-trial discovery order, that Carron's credibility had            been irreparably damaged,  and that he  had been deprived  of            the  opportunity to prepare Carron with the statement or make            an informed decision whether  to call him as a  witness.  The            prosecutor argued that  he had no  obligation to produce  the            conversation under  Fed. R. Crim  P. 16(a)(1)(A) or  the pre-            trial  discovery order  because  it did  not become  relevant            until Carron testified  inconsistently with it and it was not                                         -15-                                          15            a wire intercept.   The court ordered an  evidentiary hearing            for the  following  day,  and  excused  the  jury  until  the            following Monday.                      At   the  hearing  on  Friday,  October  28,  Agent            Brosnan,  the FBI agent in charge of the case against Lanoue,            testified that on August 22, 1994, he requested  and received            from  the  Wyatt  Detention  Center  a  cassette  tape  of  a            conversation  between Lanoue  and Carron  that took  place on            August 20, 1994, which he had transcribed and provided to the            prosecutor.   Agent  Brosnan  testified that,  since Lanoue's            arrest and indictment and as part of his investigation of the            pending case, he had  gone to the Wyatt Detention  Center and            been permitted to  listen to  various tapes in  an effort  to            hear   and   obtain   recordings   of    Lanoue's   telephone            conversations  with Carron, but that he found none.  In April            of 1994, he  requested that  the facility keep  track of  all            calls made by Lanoue.   He was told that it would  be done by            spot  checking, but was not notified of any of Lanoue's calls            other than that of August 20.3                       In the  August 20 conversation, Lanoue  told Carron            that  he had discovered during  a recent hearing  in his case            that   Laraviere   was  the   source   of   the  government's                                            ____________________            3.  The primary purpose of the hearing was to resolve whether            the conversation  was intercepted in violation  of Title III.            Jennifer  Egan,  Chief of  Programs  at  the Wyatt  Detention            Center, also  testified at  the hearing, but  only on  issues            relevant to the defendant's Title III claim.                                         -16-                                          16            information.  Lanoue did  not refer to Lariviere by  name but            as  "your  friend,    the millionaire,"  the  informant  from            Worcester,  and  the  only  person who  could  have  provided            information  about the  Oldsmobile on December  17.   He said            that  Laraviere had  not gone  to jail  as expected,  advised            Carron  to be careful of Laraviere, and asked Carron to visit            him  in prison.  Lanoue  made statements about the Oldsmobile            such  as, "They  know  all about  the  car, they  know  about            everything," "you  know I  bought that  car,"  and "that  car            there that I bought at American Motors."                      At the conclusion  of the evidentiary  hearing, the            defense again argued for a mistrial.  The government conceded            that it had violated Fed. R. Crim. P. 16, but argued that the            error was  made in good  faith and  that the defense  was not            prejudiced.                      On the  following  Monday, October  31,  the  court            ruled  that the prosecutor's  violation of  Fed. R.  Crim. P.            16(a)(1)(A)  did not  warrant  a mistrial  or other  remedial            action.    In  response  to  the defendant's  request  for  a            curative instruction explicitly referring to the prosecutor's            questions  of  the  previous Thursday,  the  court  generally            instructed  the  jury that  if counsel's  questions "indicate            that a particular thing  is so, you shouldn't accept  that as            being established unless and until you hear evidence that the            thing is so."                                         -17-                                          17                      The   third  part  of  Carron's  cross  examination            ensued.   Contrary to  his representation that  he would  not            refer to  the conversation again, the  prosecutor again asked            Carron whether  he had had any  conversations about Laraviere            with Lanoue after  Lanoue's arrest.  The  court overruled the            defendant's objection, and Carron  again answered that he did            not recall.   Carron again expressed fear that the prosecutor            was trying to make him perjure himself.  He refused to answer            "yes"  or "no"  to  questions concerning  the  events he  had            testified to on direct  examination -- that Lanoue  wished to            purchase  the  car  for  his  daughter,  that  Laraviere  had            obtained  the keys at the dealership, that they then took the            car for  a test drive, and  that he saw Lanoue  give money to            Laraviere thereafter -- instead answering  "evidently," "that            was my impression," "I  assume so," "I don't recall,"  and "I            don't recall nothing."        2.Analysis                      We  review  the  trial  court's  handling  of   the            government's  discovery violation  for  abuse of  discretion.            United States v. Hodge-Balwing,  952 F.2d 607, 609  (1st Cir.            ______________________________            1991).  In order to obtain a reversal  on appeal, Lanoue must            show  that the trial court abused its discretion in ruling on            the effect  of the  discovery  violation.   United States  v.                                                        _________________            Tajeddini,  996 F.2d  1278, 1287  (1st Cir.  1993).   We will            _________            order a new trial if the discovery violation caused prejudice            not cured by the trial court's remedy.                                           -18-                                          18                      The  trial court  found that  no mistrial  or other            remedy  was warranted  because: (1)  the prosecutor  acted in            good faith; (2) the purposes of Rule 16 were not subverted by            the withholding and use of the undisclosed evidence; and  (3)            the  defendant was  not  prejudiced.   See  United States  v.                                                   ___  _________________            Gladney, 563 F.2d 491, 494-95 (1st Cir. 1977).            _______                                a.   Did  the  prosecutor  act   in  good            faith?                      The court found that the prosecutor had made a good            faith error in  judgment.   Such a finding  depends in  large            measure  on whether the prosecutor's explanation was credible            and is therefore entitled  to considerable deference.  United                                                                   ______            States v.  Levy-Cordero, 67 F.3d 1002, 1013  (1st Cir. 1995).            _______________________            In this  case, the prosecutor's explanations  for withholding            the statement were both factual and legal.  To the extent the            court relied on the  reasonableness of the prosecutor's legal            arguments,  we temper  the  usual deference  accorded  purely            factual findings.   Cf. RCI  Northeast Servs. Div.  v. Boston                                __  _____________________________________            Edison Co., 822  F.2d 199, 203 (1st Cir. 1987) ("a finding of            __________            fact predicated upon, or induced by, a misapprehension of law            is  robbed of its customary vitality").  We conclude that the            trial  court's finding of good faith was not supported by the            facts or the law.                      First,  the court gave weight to  the fact that the            government had  not received  the statement until  two months                                         -19-                                          19            prior to trial.   But because the government's  obligation to            disclose the defendant's recorded statements is  a continuing            one, Fed. R.  Crim. P.  16(c), that was  a factor  militating            against rather than in favor of a finding of good faith.  Cf.                                                                      __            Tajeddini, 996  F.2d at 1287  (no bad faith  where prosecutor            _________            was unaware of defendant's statement until the day  before he            disclosed  it to  defense counsel  three days  before trial).            Instead of disclosing the statement as soon as he received it            from Agent Brosnan, two months prior to trial, the prosecutor            never disclosed it  at any  time before using  it before  the            jury.     Second,  the  court   thought  that  there   was  a            "colorable question"  as to whether  the statement had  to be            produced because it was a "mixed statement" by the  defendant            and a potential witness,  so that the government only  had an            obligation to produce the  statement "to the extent it  was a            statement  of  Mr.   Lanoue."    But  this  theory,  even  if            "colorable,"  does  not  explain  the  prosecutor's  actions.            "[S]tatements discovered by means of electronic surveillance"            are  within Rule 16(a)(1)(A).   Fed. R. Crim.  P. 16 advisory            committee's note.  And  the rule contains no exception  for a            defendant's  recorded  statements  on  the  basis  that  they            comprise one  side of a conversation.   The court's pre-trial            order  required  disclosure  of  any  statements  subject  to            disclosure  under  Rule  16  and  "[w]hether  the  government            counsel's file indicates that any wire or oral communications                                         -20-                                          20            have  been intercepted."  Whether or not Carron's side of the            conversation  was required to be disclosed under Rule 16, the            transcript  in its  entirety should  have been  disclosed for            purposes of determining its  admissibility before trial.  See                                                                      ___            United  States v. Latham, 874  F.2d 852, 864  (1st Cir. 1989)            ________________________            (it  was  error  for  the  government  not  to have  provided            defendant  with  tape  recordings   containing  conversations            between  defendant  and   government  witnesses).    If   the            prosecutor  genuinely  believed  that  Carron's  side of  the            conversation was  not discoverable, the  reasonable and  only            permissible  course  would have  been  to  seek redaction  of            Carron's words.4   See Fed.  R. Crim. P.  16(d)(1).   Because                               ___            Rule  16 could not reasonably be read to allow the government            to  withhold Lanoue's  side of  the conversation,  the "mixed            statement" rationale did not support a finding of good faith.                                   Third,   the  court   found  that   the  prosecutor            genuinely believed that the statement was not relevant within            the meaning of Rule 16.  The statement was relevant if it had            "any tendency to make the existence of any fact that [was] of                                            ____________________            4.  Nothing  precluded disclosure  of  Carron's  side of  the            conversation.  He was  not a government witness, 18  U.S.C.              3500(a),  and his side of the conversation was not grand jury            testimony.  United States v.  McMahon, 938 F.2d 1501, 1504-05                        _________________________            (1st Cir. 1991) (explaining rule that defense is not entitled            to  the grand jury testimony of a defense witness until after            cross examination as being  based on the need for  grand jury            secrecy).                                         -21-                                          21            consequence to the determination  of the action more probable            or  less probable  than it  would  be without  the evidence."            Fed. R. Evid. 401.  Relevance is to be interpreted broadly in            the context of  Rule 16(a)(1)(A).   See Fed. R.  Crim. P.  16                                                ___            advisory committee's note (rejecting narrow interpretation of            defendant's  right to  discover  own statements).   The  rule            gives a "defendant  virtually an absolute  right" to his  own            recorded  statements  "in  the  absence   of  highly  unusual            circumstances  that  would  otherwise  justify  a  protective            order."  2 C.  Wright, Federal Practice and Procedure    253,                                   ______________________________            at 46-47  (1982)  (internal  citations  and  quotation  marks            omitted).   See  also United  States v.  Bailleaux, 685  F.2d                        ___  ____ ____________________________            1105, 1114 (9th Cir.  1982) (adopting broad interpretation of            relevance as applied to defendant's statements as a matter of            practicality); United States v. Haldeman, 559 F.2d 31,  74 n.                           _________________________            80  (D.C. Cir.  1976)  (en banc)  (disclosure of  defendant's            statements is "practically a matter  of right even without  a            showing of materiality"), cert. denied, 431 U.S. 933 (1977).                                       ____  ______                                   The statement obviously was  relevant.  Lanoue made            statements  about  the  Oldsmobile that  were  arguably  both            inculpatory and exculpatory.5   He  discussed the  informant,            who was  a potential government witness,  and made statements                                            ____________________            5.  On appeal, Lanoue does not press his contention  at trial            that  the  conversation  was  required  to  be  disclosed  as            exculpatory evidence.                                         -22-                                          22            relevant  to the  defense theory  that the  government's case            rested  on false information provided by that informant.  See                                                                      ___            United  States v. Noriega, 764 F. Supp. 1480, 1494 (S.D. Fla.            _________________________            1991)  (conversations of  defendant recorded in  prison about            potential  government  witnesses  were  relevant  within  the            meaning of  Rule 16(a)).   Even assuming that  the government            could not envision the statement's relevance before trial, it            certainly  understood  its  relevance  when  defense  counsel            outlined the defense theory in his opening statement.                        The reasons proffered by the prosecutor in  support            of his belief that the statement  was not relevant -- that it            was obtained  in a separate investigation  of alleged witness            intimidation, that  the conversation did not  become relevant            until Carron  testified inconsistently  with it, and  that he            did  not expect  Carron  to testify  about Laraviere  -- were            without basis in fact or law.                      Rule  16(a)(1)(A)  contains  no  exception   for  a            defendant's recorded  statements  if  they  are  obtained  in            connection with a separate investigation, so long as they are            relevant  to the pending case.  "[A]cceptance of the language            for just what it says is dictated by the fundamental fairness            of granting the  accused equal  access to his  own words,  no            matter  how the government came  by them." United   States v.                                                       __________________            Caldwell, 543 F.2d 1333, 1353 (D.C. Cir. 1974), cert. denied,            ________                                        ____  ______            423 U.S.  1087  (1976).   Moreover,  it  appears  that  Agent                                         -23-                                          23            Brosnan  obtained  the conversation  in  connection  with his            investigation of the pending  case.  For at least  six months            prior to  trial, he had  been attempting to  obtain telephone            conversations  between  Lanoue  and  Carron as  part  of  his            investigation  of  the  case  pending against  Lanoue.    The            prosecutor  stated  that  he  knew about  and  approved  that            activity, and that immediately  after obtaining the August 20            conversation, he subpoenaed Carron to  testify against Lanoue            in the pending case.  It is therefore difficult to credit the            "separate  investigation"  rationale.    In  any  event,  the            conversation contained Lanoue's statements that were relevant            to the charges pending  against him and his defense  to those            charges.   Those  statements  therefore were  required to  be            disclosed by the plain terms of Rule 16.                        As   to  the   prosecutor's  contention   that  the            conversation  did not become  relevant until Carron testified            inconsistently with  it, the government's duty  to disclose a            defendant's  relevant recorded  statements does not  hinge on            whether or when the  government uses the statement.   Only an            oral  statement to a known government agent is required to be            disclosed "if the government intends to use that statement at            trial."  Fed. R. Crim. P. 16(a)(1)(A).  But even that type of            statement is  required to be disclosed  regardless of whether            the government intends to  introduce it in its case-in-chief,            use it for impeachment, or introduce it in rebuttal. See Fed.                                                                 ___                                         -24-                                          24            R. Crim. P. 16  advisory committee's note to  1991 amendment.            Rule 16(a)(1)(A)  is  unequivocal that  the government  "must            disclose . . . any relevant . . . recorded statements made by            the  defendant."   Even  an  illegally obtained  inconsistent            statement of a defendant that can only be used to impeach him            (but not a defense witness), Harris v. New York, 401 U.S. 222                                         __________________            (1971);  James v. Illinois, 493 U.S. 307, 313 (1990), must be                     _________________            produced to him  under Fed.  R. Crim. P.  16(a)(1)(A).   See,                                                                     ___            e.g.,  United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975).            ____   ______________________            The  government's theory  that  Lanoue's statements  were not            relevant until a  witness testified inconsistently  with some            part   of   the   conversation   was   therefore   erroneous,            particularly where  Carron was  not cross examined  about his            own statements,  but about  Lanoue's.   See United  States v.                                                    ___ _________________            Scafe,  822  F.2d  928,  935  (10th  Cir.  1987)  (government            _____            violated Rule 16 by withholding defendant's letters and using            them to cross examine defense witness).                      The  prosecutor's representations  that he  did not            expect Carron to testify  until the day before  he testified,            and that even then he did not expect  Carron to testify about            Laraviere's character, were irrelevant because, as explained,            Rule  16(a)(1)(A)  requires the  government  to  disclose the            defendant's recorded statements regardless of whether or when            it intends  to use them.  Moreover, it is difficult to credit            the government's representation.   The recorded  conversation                                         -25-                                          25            itself  and  defense  counsel's  opening  statement  put  the            government   on  notice  that   Carron  would  testify  about            Laraviere.                      Finally,  the  court   noted  that,  although   the            prosecutor could have tried to  conceal the violation, he did            not.   It is true  that the  prosecutor immediately  admitted            that  he  held  a  transcript  of  the  defendant's  recorded            conversation  in his hand and  that he had  not disclosed it,            and conceded the next day, with a myriad  of excuses, that he            had  violated Rule 16.   We will not  overlook a prosecutor's            failure  to know or follow  the discovery rules  on the basis            that he did not try to hide the violation.                        In any  event, whether the prosecutor  withheld the            defendant's  statements in  good faith  or intentionally  has            little  to do with whether  the court should  have declared a            mistrial,  since  prosecutorial  good  faith  could  have  no            mitigating  effect   on  the  prejudice   flowing  from   the            violation.   See United States  v. Padrone, 406  F.2d 560 (2d                         ___ _________________________            Cir.  1969)   (granting  new  trial  where  inadvertent  non-            disclosure of defendant's statement affected trial strategy).                                             b.   Were the purposes of Rule 16                                     subverted?                      Rule  16's  mandatory  discovery   provisions  were            designed   to   contribute   to  the   fair   and   efficient            administration  of  justice by  providing the  defendant with                                         -26-                                          26            sufficient information  upon which  to base an  informed plea            and  litigation  strategy;  by  facilitating  the raising  of            objections to admissibility prior to trial; by minimizing the            undesirable effect of surprise  at trial; and by contributing            to  the accuracy  of the  fact-finding process.   See  United                                                              ___  ______            States  v. Alvarez, 987 F.2d 77, 84-86 (1st Cir. 1993), cert.            __________________                                      ____            denied, __ U.S. __,   114 S. Ct. 147 (1993); Fed. R. Crim. P.            ______            16 advisory committee's note.  The trial court found that the            government's  discovery  violation  had  not  undermined  the            purposes of Rule 16 because it did not cause the defendant to            unknowingly subject himself to  impeachment;6 Rule 16 was not            intended  to protect  against  surprising a  witness with  an            inconsistent statement; and it may have actually assisted the            accuracy  of  the  fact-finding  process  by  surprising  the            witness.                      All  of these  reasons miss  the point  because the            government cross examined Carron  by referring to and reading            Lanoue's,  and not Carron's, words.  Lanoue had a right under            the  Federal  Rules of  Criminal  Procedure  to discover  his            recorded statements  and to  prepare for trial  and devise  a            defense strategy  based on the evidence  disclosed.  Alvarez,                                                                 _______            987  F.2d at  85.   The court's  reasoning that  surprising a            witness with the defendant's statements promoted accuracy and                                            ____________________            6.  Lanoue testified  after Carron, and  therefore after  the            discovery violation came to light.                                         -27-                                          27            therefore militated against remedial  action turns Rule 16 on            its head.  Due to the nondisclosure, the defense was deprived            of the  opportunity to  refresh Carron's recollection  and to            investigate the circumstances  surrounding the  conversation.            This unfairly  surprised the defense  and deprived it  of the            opportunity to design an intelligent litigation strategy that            responded to the statement.                      We also note  that it  is far from  clear that  the            cross examination  assisted the accuracy  of the trial.   The            government opened its cross examination by accusing Carron of            threatening Laraviere.  At sidebar the prosecutor stated that            Carron  had threatened  Laraviere, but  proffered  nothing to            support the accusation  other than to  say that the  document            from  which   he  read  corroborated  his   questions.    The            conversation contained no mention of threats.  In  it, Lanoue            told Carron that Laraviere was the informant, that his lawyer            was putting an investigator on Laraviere, that  he should not            warn Laraviere, and that he should be wary of Laraviere.   We            doubt  that  this was  a sufficient  basis for  asking Carron            whether  he had threatened  Laraviere, and it  plainly was an            insufficient  basis  for asking  if  he  had ever  threatened            anyone.  Cf.  United States v. Lilly, 983 F.2d  300, 306 (1st                     ___  ______________________            Cir. 1992) (prosecutor's explanation for asking  question was            plausible where  he had in  hand a  judicial opinion  finding            appellant  was  not a  credible  witness);  United States  v.                                                        _________________                                         -28-                                          28            Gomez-Pabon,  911   F.2d  847,   857  n.5  (1st   Cir.  1990)            ___________            (expressing  doubt  that  prosecutor's  questions  to defense            witness  about whether  he was  under investigation  for drug            smuggling were improper  since the prosecutor  volunteered to            call witnesses to attest to the foundation of the questions),            cert.  denied, 498 U.S. 1074 (1991);  United States v. Madrid            ____   ______                         _______________________            Ramirez, 535  F.2d 125,  129 (1st  Cir. 1976) (appellant  not            _______            prejudiced by question to defense witness about prior offense            because  it  was  based on  an  actual  conviction).   Carron            apparently was  not charged with threatening  Laraviere.  The            government did not  present evidence in its rebuttal  case to            refute Carron's description of the FBI agents' visit in which            he said  that the  agents  pressured him  to testify  against            Lanoue, not  that they accused him  of threatening Laraviere.            The government  was free to show  through admissible evidence            that its  informant had  been threatened,  but it offered  no            such evidence.  Nonetheless, the jury may  well have received            the  impression from the prosecutor's improper questions that            Laraviere did not testify  because Carron had threatened him.            If  Lanoue's  counsel  had  been  able  to  refresh  Carron's            recollection  with the  transcript of  the conversation,  the            jury  would have  been warranted  in reaching  the conclusion            that Laraviere  did not  testify because his  testimony would            not have helped the government.                                             -29-                                          29                      The   prosecutor's   failure   to    disclose   the            conversation  at any time before using it also subverted Rule            16's purpose of facilitating the fair and efficient pre-trial            determination  of the  admissibility of  Lanoue's statements.            Although an  evidentiary hearing was  held, it was  not until            after the  prosecutor had already used  the statements before            the jury.    Moreover,  we think  the  hearing  was  unfairly            truncated  due to  the government's  late disclosure.   After            Agent Brosnan testified, defense counsel attempted  to obtain            the  presence  of the  Wyatt  Detention  Center employee  who            provided  Agent Brosnan  with  the conversation  in order  to            explore whether it was intercepted  as a result of monitoring            directed specifically  against Lanoue, which was  relevant to            its admissibility  under Title  III.   Ms. Egan,  Director of            Programs at  the facility, responded that  the employee would            not attend the hearing because it was his day off.  The court            refused the defendant's request for a recess during which the            prosecutor could convince Ms.  Egan of the importance of  the            employee's  attendance.    If   the  conversation  had   been            disclosed two months prior to trial when it should have been,            defense counsel could have  obtained any necessary witnesses.            The   incomplete  mid-trial   hearing  necessitated   by  the            prosecutor's  failure  to  disclose  was  neither   fair  nor            efficient.                                  c.   Was Lanoue prejudiced?                                         -30-                                          30                      The court found that Lanoue had not been prejudiced            for  the following reasons:  although the government had done            an effective  job of impeaching Carron,  the statement played            little role  in that  process  because it  was peripheral  to            Carron's testimony and the defense theory; Carron denied that            Lanoue  made the statements; and the  statements had not been            introduced into evidence.                       The improper questions based on Lanoue's statements            were not  peripheral to  Carron's testimony and  the defense.            At the close of  the government's case-in-chief, the evidence            concerning the stolen vehicle  charge was that the Oldsmobile            was  reported  stolen on  December  21  and that  Lanoue  was            driving it  on December  19 and  again on December  23.   The            defense, consisting  of Lanoue's and Carron's  testimony, was            that Lanoue  had purchased the  car from  Laraviere, who  had            represented that the  car was  his to sell  and then  falsely            informed the FBI that Lanoue was planning to steal the car in            order to obtain favorable treatment on pending theft charges.            If  the  jury  believed that  testimony,  it  would have  had            grounds for acquitting Lanoue of the stolen vehicle charge.                        A  key  element  of  the defense,  argued  in  both            opening  and  closing,  was  that the  informant  upon  whose            information  the  government's  entire  case  rested did  not            testify at trial.   Indeed, the government clearly recognized            that  Laraviere's absence  and  the implication  that he  had                                         -31-                                          31            provided  false  information  could  defeat its  case.    The            government objected when the  defense attempted to elicit the            informant's name  and the exact information  he had provided,            and urged the jury in closing argument to ignore  Laraviere's            absence.   Yet it offered no evidence to explain his absence,            other  than   the  improper  questions  accusing   Carron  of            threatening Laraviere and insinuating that the threat stemmed            from a conversation with Lanoue.  As the government intended,            these questions  had a detrimental  effect on a  defense that            was otherwise uncontradicted.  Cf. United States v. Lewis, 40                                           ___ ______________________            F.3d  1325, 1340 (1st Cir. 1994) (no prejudice to the defense            due  to  government's  delayed fingerprint  analysis  because            there  was ample evidence to  refute and none  to support the            defendant's theory that he was framed).                      Lanoue also was  prejudiced because the failure  to            disclose his  statements deprived  him of the  opportunity to            effectively prepare  for trial  and to design  an intelligent            trial strategy.  See  Alvarez, 987 F.2d at 85;  United States                             ___  _______                   _____________            v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S.            _________                              ____  ______            1218 (1984); Gladney, 563  F.2d at 494.  If  the conversation                         _______            had  been disclosed two months before trial as it should have            been, Lanoue would have known that Agent Brosnan obtained  it            in  connection  with  a  "separate  investigation of  witness            intimidation."  Lanoue's counsel would then have been able to            investigate whether  there was such an  investigation and, if                                         -32-                                          32            so,  what came of it,  enabling him to  either prepare Carron            for  cross examination on that subject or make an intelligent            decision not to call him as a witness.                           Carron's  denial  that Lanoue  made  the statements            militates  in  favor of  rather  than  against a  finding  of            prejudice  because  defense  counsel   was  deprived  of  the            opportunity   to  refresh  Carron's  recollection  about  the            content of the conversation.  See United States v. Rodriguez,                                          ___ __________________________            799 F.2d 649, 654 (11th Cir. 1986) (defendant's denial of the            existence of undisclosed items bolstered rather than weakened            his  claim  for a  mistrial because  it  deprived him  of the            opportunity   to  support   the   denial   or   refresh   his            recollection,   thus  defeating  purposes  of  the  discovery            requirement).   Carron  answered  "no," and  then finally  "I            don't remember  that" to questions  asking him if  Lanoue had            made  statements  about   Laraviere,  while  the   prosecutor            referred to,  read from, and brandished  a document obviously            containing those  statements.   The defense should  have been            able to refresh Carron's  recollection about what Lanoue said            to him.                        Furthermore, Carron was  thoroughly unnerved by the            prosecutor's  use of  specific dates  while referring  to the            transcribed conversation.  To be sure, he was uncertain about            specific  dates and  time  frames throughout  his  testimony.            This  may  or   may  not  have  detracted  from  his  overall                                         -33-                                          33            credibility  but when  the prosecutor  began to  brandish the            transcript,  it received  a major  blow.   Thereafter, Carron            refused to directly answer any question concerning dates, and            eventually  any question  at  all, expressing  fear of  being            trapped into committing perjury.   If defense counsel had had            access to the transcript, he could have attempted  to refresh            Carron's recollection.   Failing that, he  could have decided            not  to  call  Carron as  a  witness  at all.    Instead, the            government  was able  to  destroy, with  the defendant's  own            statements, the  credibility of the only  defense witness who            testified  to the  defense  theory other  than the  defendant            himself.                              That the  statement was not actually  introduced in            evidence  does  not show  lack  of  prejudice.   An  improper            question alone can require a mistrial or other  potent remedy            if  it  causes prejudice.   See  Rodriguez,  799 F.2d  at 654                                        ___  _________            (district court erred in denying  mistrial on the basis  that            the undisclosed  material was  not  introduced into  evidence            where  the government's  use of  the material  in questioning            defendant   was  just  as   effective  as  if   it  had  been            introduced); Padrone,  406 F.2d at 560  (although undisclosed                         _______            statement was not introduced, district court erred in failing            to grant  mistrial  where defendant's  direct  testimony  was            inconsistent  with the  statement).   Here,  the government's            failure to disclose the  conversation and its questions based                                         -34-                                          34            on the conversation could well have led to the destruction of            Carron's credibility and undermined the defense theory.  That            the conversation was not introduced in evidence did not erase            or mitigate the prejudice.    d                             .                      Did the trial court take appropriate action to cure                      and prevent prejudice?                      When  a party fails to comply with Fed. R. Crim. P.            16, the court is empowered to order that party to comply with            the rule, grant a continuance, exclude the evidence, or enter            other just relief.  Fed.  R. Crim. P. 16(d)(2).  What  remedy            should  be  applied  depends   on  the  "seriousness  of  the            violation  and the  amount  of prejudice  to the  defendant."            Gladney,  563 F.2d at 494.   Here, the  violation was serious            _______            and  likely to  have caused serious  prejudice.   Because the            statement was not disclosed at any time before the government            used it, or in enough time that the defense could make use of            it, a mistrial  was the only appropriate  remedy.  We  do not            decide  whether  the  court   would  have  acted  within  its            discretion  if it  had taken  more forceful measures  than it            did,  but  we note  that the  court  could have  stricken the            questions,  given   an   immediate  and   explicit   curative            instruction, granted  the defendant's  request for  a recess,            and  even  halted  the  cross examination  and  then  allowed            redirect.                        Moreover, the court did  not act to prevent further            prejudice.   Although the prosecutor had  represented that he                                         -35-                                          35            would not refer  to the conversation  again, he reminded  the            jury  of  the statements  he had  read  four days  earlier by            asking  Carron whether  he  had had  any conversations  about            Laraviere  with the  defendant after the  defendant's arrest.            Defense counsel's objection was  overruled, and Carron  again            answered  that  he  did  not  recall.    By   overruling  the            objection, the  court tacitly approved the  improper question            in the jury's  presence.   See United States  v. Manning,  23                                       ___ _________________________            F.3d 570, 575 (1st Cir. 1994).  The   government  argues   on            appeal  that  the trial  court did  not abuse  its discretion            because it eventually  gave Lanoue's counsel  the opportunity            to review the  statement with Carron to  determine whether he            wished to recall  him.  The  court ignored defense  counsel's            immediate request for a recess and to be given the statement.            The court denied his  request for a recess at  the conclusion            of Carron's cross  examination so that  he could prepare  him            for redirect.  Instead,  the court permitted Lanoue's counsel            to meet with Carron for the first time during a later  recess            in the middle  of Lanoue's direct  testimony, ruling that  he            could recall Carron to  the witness stand if his  reasons for            doing so were sufficient.                        This  is not  a case  of merely  delayed disclosure            where  "the critical inquiry is  . . .  whether the tardiness            prevented defense counsel from employing the material to good            effect."  United  States v.  Osorio, 929 F.2d  753, 757  (1st                      _________________________                                         -36-                                          36            Cir. 1991).  The government's use of the conversation without            disclosing it at all precluded Lanoue's counsel from using it            to  any effect.    When he  twice requested  a  recess in  an            attempt  to mitigate  the harm  already done,  those requests            were denied.   Cf. Hodge-Balwing, 952 F.2d  at 609 (defendant                           ___ _____________            failed to  show prejudice where court  ordered the government            to hand over the case report before the witness testified and            defendant failed to seek a continuance); Hemmer,  729 F.2d at                                                     ______            13 (defendants  failed to show prejudice  where they received            reports, used them  in their  defense, and failed  to seek  a            continuance).  We do not fault Lanoue's counsel for declining            to recall  Carron at  a point  when he was  in shambles  as a            witness as the  result of the  government's violation of  the            rules and the trial  court's utter failure to send  a message            to the  witness, the jury  or counsel  that the  government's            questions were improper.                          Count  V is vacated  and remanded  for a  new trial            because  Lanoue plainly  was prejudiced in  defending against            the stolen motor vehicle charge.  There was no prejudice with            respect  to Count VI because Carron's testimony did not touch            on  whether Lanoue  knowingly transported  a firearm  with an            obliterated serial number.                        Although  it  is  a  more  difficult  question,  we            believe that  Lanoue also suffered  prejudice as to  Count I,            the  conspiracy count.  The jury was instructed that it could                                         -37-                                          37            convict  Lanoue  of conspiracy  if it  found he  conspired to            commit  any  one  or  more  of  six  object  offenses:    (1)            interstate  transportation  of  a  stolen  motor  vehicle, 18            U.S.C.    2312; (2) possession of a stolen motor vehicle that            had  crossed   state  boundaries,  18  U.S.C.      2313;  (3)            interstate transportation of a  firearm by a convicted felon,            18 U.S.C.   922(g)(1); (4) using or carrying a firearm during            and  in  relation  to  an  attempt  or conspiracy  to  commit            robbery, 18 U.S.C.    924(c)(1); (5) interstate possession of            a stolen firearm (referring to Meade's revolver), 18 U.S.C.              922(j); or (6) interstate transportation of a firearm with an            obliterated serial  number (referring to  Lanoue's revolver),            18  U.S.C.   922(k).   The object offenses  best supported by            the evidence were the two  relating to the stolen Oldsmobile,            with respect to which  Lanoue was prejudiced.  Unless  we can            conclude with fair assurance  that the jury relied on  one of            the  other  four  objects,  we must  reverse  the  conspiracy            conviction.   Cf. United States v. Morrow, 39 F.3d 1228, 1236                          ___ _______________________            (1st Cir. 1994) (erroneously  admitted evidence was  harmless            where  it was used  to prove an  object of  the conspiracy to            which  defendant  was  never  tied  and  it  was  a  "virtual            certainty" that jury convicted him for his involvement in the            other object offense), cert.  denied, __ U.S. __, 115  S. Ct.                                   ____   ______            1328 (1995).                                          -38-                                          38                      The evidence of a  conspiracy to commit any  of the            latter  four object  offenses was  not overwhelming,  and the            jury's verdicts give  us little confidence that  it relied on            any of them  to find Lanoue  guilty of conspiracy.   The jury            necessarily rejected all  of them as objects  of an agreement            by Cole or Meade when it acquitted them of Count I.  Although            we  could not conclude from  this that there was insufficient            evidence  of a  conspiracy, United  States v.  Bucuvalas, 909                                        ____________________________            F.2d 593, 597 (1st  Cir. 1990), the question we  address here            is not what a  rational jury could conclude but  "rather what            effect the error  had or reasonably may be taken  to have had            upon  the jury's decision" in this case.  Kotteakos v. United                                                      ___________________            States, 328 U.S. 750, 764 (1946).             ______                      The  fourth object  offense,  using  or carrying  a            firearm  during and in relation  to a crime  of violence, was            charged  as a  substantive offense  in Count  IV.   The court            instructed  the jury that it could find a defendant guilty of            Count IV if  it found that he (1)  committed either the Hobbs            Act attempted robbery or  the Hobbs Act conspiracy  to commit            robbery, and (2)  knowingly used or carried a  firearm during            or in relation to that crime  or those crimes; or if it found            that he aided  and abetted that offense.  The  jury found all            three defendants  not guilty of  using or carrying  a firearm            during  and in relation to an attempt or conspiracy to commit            robbery, and of  aiding and abetting that offense; not guilty                                         -39-                                          39            of  Count II,  the Hobbs  Act conspiracy;  and not  guilty of            Count  III, the Hobbs Act attempt, and of aiding and abetting            that offense.   Under these circumstances, we  think that the            jury  necessarily rejected,  as  an  object  of the  Count  I            conspiracy,  using  or  carrying  a  firearm  during  and  in            relation to an attempt or conspiracy to commit robbery.7                        The  third  and fifth  object  offenses, interstate            transportation of  a firearm  by a convicted  felon (Lanoue),            and interstate possession of a stolen firearm (Meade's), were            not  charged  as  substantive  offenses against  any  of  the            defendants.  The sixth, interstate transportation of Lanoue's            firearm with an  obliterated serial number, was  charged as a            substantive offense in Count VI against Lanoue alone, and the            jury found him  guilty of it, but there was  no evidence that            any   co-conspirator   knew  that   the  serial   number  was            obliterated.8    Given the  dearth  of  evidence that  Lanoue            conspired  with  anyone  else  who  possessed  the  requisite            knowledge and intent to  commit these offenses, and the  fact            that the  jury  rejected  each  of  them as  a  basis  for  a                                            ____________________            7.  Because the jury expressly acquitted Lanoue  of violating            18 U.S.C.   924(c)(1),  and necessarily rejected that offense            as an object of  the Count I conspiracy, the  Supreme Court's            recent definition of the  "use" element of a violation  of 18            U.S.C.   924(c)(1), Bailey v. United States, 64 U.S.L.W. 4039                                _______________________            (U.S. Dec. 6, 1995), is not implicated.            8.  Indeed,  the government  does  not argue  on appeal  that            there  was sufficient  evidence  to support  a conspiracy  to            possess Meade's  stolen firearm  or Lanoue's firearm  with an            obliterated serial number.                                          -40-                                          40            conspiracy conviction  against Cole and Meade,  we think that            the  likelihood is  remote that  the  jury found  that Lanoue            conspired with anyone else to commit them.                      The  object offenses best supported by the evidence            were the  two relating to the  stolen car.  From  what we can            glean of the jury's reasoning in this case, it is likely they            either  rejected  the  other  object  offenses,  or  found  a            conspiracy to transport a  stolen car and did not  attempt to            reach agreement  on the  other object  offenses.   We  cannot            conclude that  the erroneous  use of Lanoue's  statements did            not   substantially  sway  the   jury's  conspiracy  verdict,            Kotteakos, 328 U.S.  at 765, and therefore  vacate and remand            _________            Count I for a new trial.                      B.   Title III                      B.   Title III                      Lanoue objected to use of the conversation at trial            and seeks reversal on appeal on the additional ground that it            was  intercepted  in  violation  of  Title  III.   Title  III            prohibits, subject to certain exceptions, the interception of            telephone conversations in the absence of a court order.  See                                                                      ___            18  U.S.C.     2511(1),  2516.   Neither  the contents  of an            intercepted telephone  conversation nor any  evidence derived            therefrom may be received  in evidence, or used to  impeach a            witness, if  disclosure  of that  information  would  violate            Title III.  18 U.S.C.   2515.  Title III's protections extend            to  prisoners'  conversations over  institutional telephones.                                         -41-                                          41            See,  e.g., Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979);            ___   ____  __________________            United  States v.  Amen, 831  F.2d 373,  378 (2d  Cir. 1987),            _______________________            cert. denied, 485  U.S. 1021 (1988).   Its prohibitions would            ____  ______            not apply in  this case if  a party to the  conversation gave            prior consent to the interception, 18 U.S.C.   2511(2)(c), or            if the  conversation was intercepted "by  an investigative or            law  enforcement  officer  in  the  ordinary  course  of  his            duties."  18 U.S.C.   2510(5)(a)(ii).                        After an evidentiary hearing, the trial court ruled            that the  interception and  use of Lanoue's  conversation did            not violate Title  III because he impliedly consented  to the            interception.9   We  need not  decide this  issue because  we            vacate the convictions on Counts I and V on the basis of Rule            16.  Moreover,  because the factual record  is undeveloped in            important  respects,  and the  parties  have  not briefed  or            argued certain  relevant issues  on appeal, we  cannot decide            whether the conversation  may be used  at a  new trial.   But            because we are sufficiently concerned about whether the Wyatt            Detention   Center   intercepted  Lanoue's   conversation  in            compliance with Title III, we offer the following guidance to            the judge presiding over the new trial.                      The record reveals that the  Wyatt Detention Center            is owned  and operated by  Cornell Cox Management,  a private                                            ____________________            9.  The government  did not contend that  Carron consented to            the interception.                                         -42-                                          42            corporation.  Pursuant to an agreement with the United States            Marshal's office, it houses federal prisoners awaiting trial.            Neither  the record  facts nor  the parties'  briefs disclose            what  regulations applied  to or were  followed by  the Wyatt            Detention Center,  but  federal regulations  require  federal            prisons  to   establish  procedures  for   monitoring  inmate            telephone  calls  and to  notify  inmates  of the  monitoring            policy.   28 C.F.R.   540.102 (1995).   The Federal Bureau of            Prisons  requires  notice  to  be  posted  at  all  monitored            telephones "advis[ing]  the user that  all conversations from            that  telephone are subject to monitoring and that use of the            telephone  constitutes  consent   to  this  monitoring,"  and            requires each inmate to  sign an acknowledgement form stating            the  same.    Federal  Bureau of  Prisons  Program  Statement            5264.05   6 (April 25, 1994).  Consent has been held properly            to have been implied when notice was given according to these            standards.  See,  e.g., Amen, 831  F.2d at  379.  The  record                        ___   ____  ____            indicates that Lanoue did not receive notice even approaching            these standards.  Deficient  notice will almost always defeat            a claim of implied consent.  See Williams  v. Poulos, 11 F.3d                                         ___ ___________________            271,  282  (1st  Cir.  1993); Campiti,  611  F.2d  390,  393.                                          _______            Keeping  in mind  that  implied consent  is not  constructive            consent but "'consent in fact,'"  consent might be implied in            spite of  deficient notice, but only in a rare case where the            court   can  conclude   with  assurance   "'from  surrounding                                         -43-                                          43            circumstances  . . . that the [party] knowingly agreed to the                                                  _________ ______            surveillance.'"   Griggs-Ryan v. Smith, 904  F.2d 112, 116-17                              ____________________            (1st Cir.  1990) (quoting  Amen, 831  F.2d at  378) (emphasis                                       ____            supplied).  We emphasize that "consent should not casually be            inferred," Griggs-Ryan,  904 F.2d  at 117, particularly  in a                       ___________            case of deficient notice.  The surrounding circumstances must            convincingly show that  the party knew about and consented to            the interception in  spite of  the lack of  formal notice  or            deficient formal notice.                      The trial court did not rely on the law enforcement            exception because the government offered no evidence or legal            authority to show  that the employees of  the Wyatt Detention            Center who intercepted Lanoue's conversation were "officer[s]            of the United States  or of a State or  political subdivision            thereof . . .  empowered by law to conduct  investigations of            or make  arrests for offenses enumerated  in [section 2516]."            18  U.S.C.   2510(7).   If the government  can establish that            the employees who  intercepted Lanoue's conversation  had the            requisite  status and powers by law, they must also have been            acting in the ordinary course of duty when they did so.                      The conversation was intercepted  when it was heard            by someone other than Lanoue and Carron, whether by listening            as  the conversation  took  place or  by  tape recording  and            listening thereafter.   See Deal  v. Spears,  980 F.2d  1153,                                    ___ _______________            1158 (8th Cir. 1992);  George v. Carusone, 849 F.  Supp. 159,                                   __________________                                         -44-                                          44            163  (D. Conn. 1994).  In  Campiti, we held that the ordinary                                       _______            course  of   duties  exception   did  not  apply   where  the            interception was  done outside the usual  routine and without            notice,  was  focused  on  Campiti, and  was  not  reasonably            related to maintaining security at Walpole.  611 F.2d at 390,            392.10   As noted previously,  the employee  who located  the            conversation and provided it to Agent Brosnan did not testify            at  the hearing.    If the  call  was intercepted  to  gather            evidence  for Agent Brosnan's  investigation, rather than for            prison security purposes,  it was  not done  in the  ordinary            course of duty.                        If neither exception  applies, the conversation may            not be offered  in evidence  or used to  impeach any  witness            other than Lanoue.   According to the "impeachment" exception            allowing  use  of  illegally  intercepted  communications  to            impeach a testifying defendant  (but not a witness), Lanoue's            statements  in the conversation  may be used  for the limited            purpose of impeaching him on matters plainly within the scope            of his direct examination.  Williams, 11 F.3d at 287 & n.35.                                        ________                                            ____________________            10.  Again,  the record  does  not disclose  what regulations            applied  to or were  followed by the  Wyatt Detention Center,            but  federal regulations  state  that the  purpose of  inmate            telephone monitoring is "to preserve the security and orderly            management of the institution and to protect the public."  28            C.F.R.      540.102.     "Requests  for   information  (e.g.,            subpoenas)  on monitored  calls  are to  be  directed to  the            Regional  Counsel."    Federal  Bureau  of  Prisons   Program            Statement 5264.05   6 (April 25, 1994).                                         -45-                                          45                      C.   Sufficiency of the Evidence                      C.   Sufficiency of the Evidence                      Lanoue  argues on appeal,  as he did  in his motion            for judgment of acquittal, that the evidence adduced at trial            was  insufficient for  the  jury  to  have convicted  him  of            conspiracy  (Count  I)  or  interstate  transportation  of  a            firearm with  an obliterated serial  number (Count  VI).   In            assessing  a  claim  of  insufficiency of  the  evidence,  we            examine  the  record  in  the  light  most favorable  to  the            verdict,  drawing all  reasonable inferences  and credibility            determinations  in  its  favor,  in an  effort  to  ascertain            whether  the proof would have allowed a rational jury to find            the defendant guilty  beyond a reasonable doubt.   See United                                                               ___ ______            States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995).            _________________                           1.   Count I - Conspiracy                      Lanoue argues that no rational  jury could conclude            beyond a reasonable  doubt that he conspired with anyone else            who  possessed  the  requisite  criminal  intent,  especially            because his  co-defendants were  acquitted.   The  government            argues that there was sufficient evidence from which the jury            could conclude  that  Lanoue  conspired    with  Cole.    The            government correctly  argues that  we cannot assume  that the            acquittal  of  Lanoue's co-defendants  reflects a  failure of            proof rather than leniency or compromise, Bucuvalas, 909 F.2d                                                      _________            at 597, and Lanoue is correct that if we find the evidence of            conspiracy insufficient against the  alleged co-conspirators,                                         -46-                                          46            the  evidence against him also would be insufficient.  Id. at                                                                   __            596.                        Our  review of  the  record persuades  us that  the            trial   court  correctly  ruled  that  there  was  sufficient            evidence  from  which  the   jury  could  conclude  beyond  a            reasonable doubt that Lanoue conspired with Cole to transport            a  stolen automobile in interstate  commerce and to possess a            stolen automobile that had crossed  a state boundary.11   The            Oldsmobile was  reported stolen on  December 21.   Lanoue and            Cole took it from  Massachusetts to Rhode Island  on December            19,  and from Rhode  Island to Massachusetts  on December 23.            The jury was  free to reject Lanoue's  and Carron's testimony            that Lanoue purchased the  car from Laraviere after Lariviere            represented that  the car was his  to sell.  Because  we hold            that   the   government's  surprise   use  of   the  recorded            conversation  erroneously  interfered  with that  credibility            determination,   Count  I   is   required  to   be   vacated.            Nonetheless, because the evidence was sufficient, a new trial            is  not  precluded.   Having found  sufficient evidence  of a            conspiracy to transport and possess a stolen car, we need not            decide whether there was  sufficient evidence of a conspiracy                                            ____________________            11.  We conclude, however, that the trial court was incorrect            in finding, alternatively, that there was sufficient evidence            that Lanoue  conspired with  Laraviere to transport  a stolen            automobile in interstate commerce.  The government adduced no            evidence  and  did  not  argue  that  Lanoue  conspired  with            Laraviere.                                         -47-                                          47            to  commit any other object  offense.  See  Griffin v. United                                                   ___  _________________            States, 502 U.S. 46, 56-57 (1991) (guilty verdict on multiple            ______            object  conspiracy  stands   in  the  face  of   a  claim  of            insufficiency of the  evidence as  to one of  the objects  as            long as  the evidence  sufficiently supported an  alternative            object).                           2.   Count VI - Interstate Transportation of a                                Firearm with an Obliterated Serial Number                      Lanoue was  arrested with a Colt  38 caliber Police            Special revolver with an  obliterated serial number tucked in            his  waistband.   He argues  there was  insufficient evidence            that he knew  the serial number was obliterated, an essential            element of a violation of 18 U.S.C.   922(k).  United  States                                                           ______________            v. De Leon  Ruiz, 47 F.3d 452, 454 (1st  Cir. 1995).  Viewing            ________________            the evidence in the  light most favorable to the  verdict and            drawing  all reasonable inferences  and credibility judgments            in its favor, we conclude  that there was sufficient evidence            from which a  rational jury could  conclude that Lanoue  knew            the serial number was obliterated.   Lanoue testified that he            carried  the revolver  fairly often  to protect  himself, and            acknowledged  that  he   had  cleaned  the  gun.    When  the            prosecutor showed him the gun and asked him if it was the gun            he  carried, Lanoue replied, "Is  the State Police  on top of            the  barrel.  On top of the barrel . . . That's the one."  He            denied  that he had  obliterated the serial  number, but when            asked  if he  knew it  was obliterated,  Lanoue answered,  "I                                         -48-                                          48            never  checked it, it's possible.   But I never -- it doesn't            make no  difference to me whether  they wiped out or  not.  I            don't know  anything about  them anyway  much."   Under these            circumstances,  a  rational  jury  could  conclude  beyond  a            reasonable  doubt  that Lanoue  knew  the  serial number  was            obliterated.                      D.   The Sentence                      D.   The Sentence                      The Presentence Investigation Report ("PSR"), based            on the 1994 Guidelines, calculated Lanoue's  adjusted offense            level  as 28.  The Guidelines provided an offense level of 24            for   the  firearms  offense  if  it  was  not  committed  in            connection with "another felony," U.S.S.G.   2k2.1(a)(2), but            the  PSR added  4 levels pursuant  to U.S.S.G.    2k2.1(b)(5)            based   on   "information   submitted   by   the   government            indicat[ing] that  the defendant was  about to engage  in the            robbery of a Meehan armored car."   With an offense level  of            28  and a criminal  history category of  VI, the imprisonment            range  was 140  to 175  months.   The  PSR grouped  the three            counts  together  pursuant  to    3D1.2(b)  and  applied  the            firearms  offense level  of 28  as the  highest level  of the            counts in the group.12  See U.S.S.G.   3D1.3(a).                                      ___                                            ____________________            12.  The  offense  level for  the  stolen  car count  was  6,            consisting of a base offense level of 4 and an enhancement of            2 for the  value of the  Oldsmobile.  See  U.S.S.G.    2B1.1.                                                  ___            The  offense level for the  conspiracy count was  that of the            substantive offenses.  See   2X1.1.                                   ___                                         -49-                                          49                      Lanoue objected to the 4-level enhancement, arguing            that he  should not be sentenced on the basis of the robbery-            related  crimes of which the jury had acquitted him, and that            the government had not proved those crimes by a preponderance            of the evidence.   The court imposed  the 4-level enhancement            on the basis  that Lanoue  used or possessed  the firearm  in            connection with the  crimes of which  the jury had  acquitted            him -- conspiracy and attempt to commit robbery, and using or            carrying a firearm in connection with a conspiracy or attempt            to commit robbery.13   The court found that those  crimes had            been  proved by at least a preponderance of the evidence, and            expressed its direct disagreement with the jury's verdicts of            acquittal.14                      The court  sentenced Lanoue  to 175 months,  at the            maximum end of the  range.  Pursuant to U.S.S.G.    5G1.2(d),                                            ____________________            13.  The   government   had    alternatively   argued    that            transportation of the stolen  car could constitute the "other            felony."   The  court  found that  the  "in connection  with"            requirement was  not satisfied  with respect to  that offense            because firearms are not inherently associated with that type            of  offense  and  the firearm  was  not  used  to effect  its            commission.              14.  In addition to describing the  facts upon which it based            its finding, the court stated:                      I  am at  a  loss to  explain the  Jury's                      verdict on those three counts.  It seemed                      to me the evidence was overwhelming.  The                      Jury  saw it  differently  . .  . I  just                      don't know what the Jury concluded or why                      it reached the conclusion that it did.                                           -50-                                          50            because the  statutory maximums  were all below  the range,15            the  court imposed  60 months  imprisonment  on Count  I, 115            months  consecutive imprisonment  on Count  V, and  60 months            concurrent imprisonment  on Count VI.   Lanoue's sentence was            enhanced by  50 months  based on the  crimes of which  he had            been acquitted, amounting to a 40% increase in his sentence.                      Lanoue argues  on appeal  that we should  take this            opportunity  to reconsider  our holding  in United  States v.                                                        _________________            Mocciola, 891 F.2d 13  (1st Cir. 1989), permitting sentencing            ________            on the basis  of acquitted conduct,  because it violates  the            right to a jury  trial and engenders disrespect for  the law,            and  alternatively  that the  trial  court  clearly erred  in            finding that he had committed the robbery-related crimes by a            preponderance of  the evidence.   Lanoue's arguments  are now            moot  because only  the  conviction for  transportation of  a            firearm  with an  obliterated  serial number  stands, with  a            statutory maximum  of five  years, well below  the Guidelines            range  of  100 to  125 months  he  would receive  without the            enhancement.                      Although it  makes no  difference in this  case, we            believe that a defendant's Fifth and Sixth Amendment right to            have  a jury determine his guilt beyond a reasonable doubt is                                            ____________________            15.  The  conspiracy  statute  carries  a  five-year maximum;            interstate transportation of a stolen motor vehicle carries a            ten-year maximum; and interstate  transportation of a firearm            with  an  obliterated  serial  number  carries  a   five-year            maximum.                                         -51-                                          51            trampled  when he is imprisoned  (for any length  of time) on            the  basis  of  conduct  of  which  a  jury  has  necessarily            acquitted  him.   Moreover, we  believe that  the Guidelines'            apparent  requirement  that  courts  sentence  for  acquitted            conduct utterly lacks the appearance  of justice.  This panel            urges  the court to reconsider en banc the issue of acquitted            conduct when it is next squarely presented.            III.      Conclusion            III.      Conclusion                      For the foregoing reasons, the judgments  on Counts            I  and V are vacated and those  counts are remanded for a new            trial.   The  conviction on  Count VI  is affirmed.   Because            Count  VI is  the  only remaining  conviction, the  statutory            maximum of 60 months for violation of 18 U.S.C.   922(k) sets            the upper limit of the  sentence.  Because Lanoue's Guideline            sentence  would be greater than 60 months with or without the            4-level  enhancement, we order the sentence on Count VI to be            60 months imprisonment.                                            -52-                                          52
