
USCA1 Opinion

	




          February 8, 1996  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2260                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  GEORGE H. BENNETT,                                Defendant, Appellant.                                 ____________________        No. 94-2300                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   LIONEL LUSSIER,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this Court,  issued on February 1, 1996, is amended        as follows:            On page 9, line 7, replace "then had no reason to lie" with  "they        had no reason to lie".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2260                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  GEORGE H. BENNETT,                                Defendant, Appellant.                                 ____________________        No. 94-2300                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   LIONEL LUSSIER,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this Court, issued  on February 1, 1996, is amended        as follows:            On  page  8, 3rd  line of  2nd  paragraph, insert  a period  after        "1986)" and delete "which appears pretty closely in point."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2260                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  GEORGE H. BENNETT,                                Defendant, Appellant.                                 ____________________        No. 94-2300                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   LIONEL LUSSIER,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                             and Saris,* District Judge.                                          ______________                                 ____________________            Malcolm J. Barach for appellant Bennett.             _________________            William Maselli for appellant Lussier.            _______________            F. Mark Terison,  Assistant United States  Attorney, with whom Jay            _______________                                                ___        P.  McCloskey, United States  Attorney, was on  consolidated brief for        _____________        the United States.                                 ____________________                                   February 1, 1996                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                 BOUDIN,  Circuit Judge.   George  H. Bennett  and Lionel                          _____________            Lussier   were  each  charged   with  conspiracy  to  possess            marijuana  with  intent  to  distribute,  21  U.S.C.     846;            carrying or using a firearm during and in relation to  a drug            trafficking  offense,  18  U.S.C.    924(c)(1);  and unlawful            possession of a  firearm by  a convicted felon,  18 U.S.C.               922(g)(1).   The charges  stemmed from  a bizarre March  1994            episode in  which  Bennett, Lussier,  and  Gary King,  in  an            attempt to avenge a  previous drug-related attack and robbery            against mutual  friend Ronald Madore,  mistakenly entered the            wrong home and  assaulted the occupants,  ultimately shooting            one of them through the finger.                   Madore and King were indicted for various offenses; both            pled guilty,  cooperated with the prosecution,  and testified            against  Bennett and Lussier.  After a five-day jury trial in            August 1994, Bennett and Lussier were convicted on all counts            and sentenced, respectively, to 360 and 378 months in prison.            In  this consolidated  appeal, Bennett and  Lussier challenge            their convictions and sentences on many  grounds.  We address            the more  colorable of these claims,  setting forth pertinent            facts as necessary.                 First.    Both   Bennett  and   Lussier  challenge   the                 _____            sufficiency of  the  evidence supporting  conviction on  each            count.  Neither denies participating in the assault  but they            dispute issues  of  intent  and their  precise  role  in  the                                         -2-                                         -2-            events.  Our  familiar task  on review of  sufficiency is  to            consider  the record as a whole and to determine, viewing the            evidence in the light most  favorable to the verdict, whether            a rational  jury could find guilt beyond  a reasonable doubt.            United States  v. Luciano-Mosquera,  63 F.3d 1142,  1149 (1st            _____________     ________________            Cir. 1995).                 A  conspiracy  conviction  can be  supported  by  either            direct or circumstantial evidence of an illegal agreement--in            this  case to  possess marijuana  with intent  to distribute.            See United States v. Ruiz, 905 F.2d 499, 506 (1st Cir. 1990).            ___ _____________    ____            At trial, there was testimony that on the day of the mistaken            raid,  Bennett,  Lussier,  and  King, along  with  two  other            friends, drank  and discussed seeking revenge  for a previous            attack  in which  mutual friend  Ronald Madore,  a small-time            marijuana dealer, was beaten  and robbed of marijuana, money,            and  guns.   The  group  continued their  drinking  and their            discussion that evening at Madore's house.                 Madore testified that Bennett, Lussier, and King planned            to beat up the  man Madore suspected was behind  the previous            attack,  one Wayne Hathorne, take any marijuana he had (along            with  any money) and give the marijuana to Madore so he could            sell it  and share the proceeds.   King's testimony regarding            the plan was  less definitive;  he stated at  one point  that            they only intended to beat Hathorne, but elsewhere  that both                                         -3-                                         -3-            discussed  stealing  Hathorne's marijuana  and  giving  it to            Madore because "[h]e deals in it."                 It is  undisputed that shortly  after this  conversation            the  four men--the appellants, Madore and King--left Madore's            house in Bennett's  car and  drove to a  trailer home,  which            they mistakenly believed was Hathorne's.  While Madore waited            in the car, Bennett, Lussier and King entered the trailer and            terrorized  occupants  David Wing,  Michelle Morin  and their            children, physically  assaulting Wing  and Morin while  a gun            was  held  to Wing's  head.   There was  testimony, described            later in this opinion, that all four men knew of the proposal            to  bring a gun and that  first King and then Lussier carried            the weapon.                 Wing testified that during the attack all three men were            shouting "[w]here  is our  dope?"; Morin heard  them shouting            about drugs  but did  not specify  whether it was  particular            individuals  or  all of  them.   Wing and  Morin, who  had no            drugs, tried  to convince their assailants they had the wrong            house.  These pleas were met with a  threat to kill Wing.  In            an ensuing struggle  for the  gun Wing was  shot through  the            finger.  Bennett, Lussier and King immediately fled the scene            without taking anything.                   Appellants now insist, as they  argued to the jury, that            the  plan was  merely to  beat Hathorne  and did  not include            seizing drugs, and that  much of the testimony of  Madore and                                         -4-                                         -4-            King was false.  But such credibility assessments are for the            jury  and  nothing  here  justifies  disturbing   the  jury's            rational conclusion that Bennett and Lussier joined in a plan            to, among other things, steal marijuana and give it to Madore            to sell.                   As to the section 924(c)(1) charge of carrying  or using            a  gun during a drug  crime, Lussier concedes the sufficiency            of  the evidence  against him,  while Bennett  maintains that            nothing showed that he had carried or used  a gun in relation                                __            to the marijuana  conspiracy.  But  Bennett was also  charged            with aiding and abetting the carry or use offense.  Thus, his            conviction  can be sustained under  18 U.S.C.    2 if Bennett            knew a firearm would  be carried or used by  a co-conspirator            in  the  drug trafficking  offense  and  willingly took  some            action to facilitate the  carriage or use.  Luciano-Mosquera,                                                        ________________            63 F.3d at 1150.                 At  trial there was testimony  that the gun  used in the            attack  was taken  from  a  couch  in  Madore's  house  under            circumstances  where  Bennett could  have  seen  it.   Madore            testified  that he told  the other three they  did not need a            gun, but  each said he would  rather take it.   King held the            gun on the ride to Wing's home while sitting in the passenger            seat beside driver Bennett; King said that he did not conceal            the gun in the car, although he conceded he may at some point                                         -5-                                         -5-            have  placed it in his waistband.   It was his impression the            others were aware he had the gun.                   From this evidence  a jury could find  that Bennett knew            that one of  his companions  was carrying the  gun when  they            committed   the  attack,  and   facilitation  is  essentially            undisputed  since  Bennett  provided  his  car  to  transport            himself,  his co-conspirators,  and  the gun  to execute  the            raid.  In Luciano Mosquera, we upheld  an abetting conviction                      ________________            because the defendant provided a house for meeting where guns            were  displayed and  discussed,  and later  used during  drug            trafficking crime.  63 F.3d at  1150.  In sum, once knowledge            on the part of the aider and abettor is  established, it does            not take much to satisfy the facilitation element.                   With respect  to adequacy  of evidence on  the felon-in-            possession charge, 18 U.S.C.   922(g)(1), Bennett and Lussier            make only  the  narrow  claim that  the  evidence  failed  to            establish that the gun  had travelled in interstate commerce,            the  jurisdictional element of that offense.  The gun was not            introduced into evidence since it had  been discarded by King            and  Madore.  But from direct testimony the jury was entitled            to  find that it was a .22 caliber "Single-Six" made by Sterm            Ruger and that Sterm Ruger was an out-of-state manufacturer.                 Appellants argue that the gun  could have been a replica            fashioned by  an in-state gunsmith.   This remote possibility            had  only the  most  tenuous evidentiary  support, namely,  a                                         -6-                                         -6-            witness or  two said such  a gun could  be fabricated  but at                                             _____            significant cost.  The  overwhelming probability was that the            gun was authentic and  had been transported--at some time--in            interstate  commerce.   Certainly the jury's  conclusion that            the gun was  genuine and had previously  traveled in commerce            was  not irrational.  Cf.  United States v.  Kirvan, 997 F.2d                                  ___  _____________     ______            963, 966-67 (1st Cir. 1993).                 Second.    Shortly  into  its  deliberations,  the  jury                 ______            requested the testimony of victims Wing and Morin.  The trial            judge conferred with counsel and then  instructed the jury to            use  their recollections,  adding that  he would  provide the            requested  testimony if  the jury  still found  it necessary.            After  further  deliberations the  jury  asked  for only  the            direct testimony of Wing and Morin.  Over defense objections,            the judge then  had the  direct testimony of  Wing and  Morin            read  back to the jury.  Immediately after the read-back, the            judge asked jurors as a group whether they would also like to            hear  the cross or other testimony of the two witnesses; none            did.  Defense counsel moved for a mistrial, which was denied.                 The appellants  concede that  it would have  been within            the  trial judge's discretion to have read to the jury all of                                                                   ___            Wing and Morin's testimony; but they say that providing  only            the     direct    examination     was    prejudicial--indeed,            unconstitutional--because   the    unread   cross-examination            responses of both witnesses  were at "striking variance" with                                         -7-                                         -7-            their testimony on direct.  No examples of such variances are            mentioned.   No case law is provided to suggest that the jury            may not select what it wishes to hear.                 The  trial judge's  decision whether or  not to  grant a            request  to  read  back  testimony requested  by  a  jury  is            reviewed for  abuse of discretion, United  States v. Akitoye,                                               ______________    _______            723 F.2d 221, 226 (1st Cir. 1991); and we think  that this is            equally true of the judge's decision whether  the jury should            be made to hear  additional, related testimony that the  jury            made  clear it  did  not need  to  rehear.   Of  course, such            discretion is not  unlimited.  And certainly the  trial judge            should  exercise great  care when  the testimony  the defense            counsel wants the  jury to hear  is the cross-examination  of            the very witnesses whose full  direct testimony has just been            reread.                 But no inflexible rule exists that the cross must always            be read.  United  States v. Wright-Barker, 784 F.2d  161, 174                      ______________    _____________            (3d Cir. 1986).  In plenty of cases, the direct testimony  of            another witness might be  far more relevant in  assessing the            _______            testimony of the witness  whose testimony the jury requested.            Each case  must  be  decided on  its  facts, and  it  is  the            appellant's  burden  to  show  that  the  trial  judge  acted            unreasonably.  Here on appeal,  with ample leisure to compare            the direct and cross of Wing and Morin, appellate counsel has            still made  no specific showing  as to  why it was  unfair in                           ________                                    __                                         -8-                                         -8-            this case  for the  district court to  omit cross-examination            _________            that the jury did not want.                 Because this is a criminal case, we have read the direct            and cross-examination of the two witnesses in order to assure            ___            ourselves that the district court's  action did not cause any            miscarriage of  justice.  We  have found  nothing to  suggest            that the  cross-examination was vital or  contained more than            the customary measure of minor variations or inconsistencies.            Prior  to requesting  the  read-backs, the  jury could  quite            reasonably have  concluded that it  credited these witnesses'            direct testimony--they had no  reason to lie--and then sought            the read-back to refresh the  jury's own recollection on some            specific points.                 There  is no merit in two other related claims of error.            Appellants  now say that the jury  was confused or bewildered            by the trial  judge's offer to have the cross reread; but the            trial judge found otherwise.   We have read the  colloquy and            find  no  reason  to  doubt  the  trial  judge's  conclusion.            Appellants also say that the jury  should have been cautioned            not to give the direct testimony special weight, e.g., United                                                             ____  ______            States v. DeSoto, 885  F.2d 354, 363 (7th Cir.  1989), but no            ______    ______            such request was made at trial.                 Third.   In  closing, the  prosecutor  referred  several                 _____            times,  without objection,  to the  "selective focus"  of the            defense.   In  rebuttal, the  prosecutor described  a defense                                         -9-                                         -9-            argument as a "diversion" that "doesn't  pass the laugh test"            and  again  referred  to  the  defense's  "selective  focus."            Defense  counsel  immediately  objected  to  the  "diversion"            remark.   After the  summations, defense counsel  requested a            curative instruction that the jury disregard these remarks to            the  extent that  they "degraded  legitimate defenses."   The            judge found  the comments  unobjectionable and gave  only the            standard  instruction  that  arguments  of  counsel  are  not            evidence.                 Appellants now  maintain that both  of the  prosecutor's            remarks improperly denigrated defense  counsel as well as the            defense strategy.  The prosecutor is expected to refrain from            impugning, directly or through  implication, the integrity or            institutional  role of  defense  counsel.   United States  v.                                                        _____________            Boldt,  929  F.2d 35,  40 (1st  Cir.  1991).   But "selective            _____            focus" remarks were  part of  a larger metaphor  used by  the            prosecutor in urging the  jury to "act as a camera"  and keep            "focused" on  the evidence.   In context, the  remarks merely            echo  the truism  that  lawyers highlight  helpful facts  and            retreat from unfavorable ones.                 The prosecutor  edged closer to trouble  in his rebuttal            remarks by calling a defense argument a "diversion" that does            not  "pass the  laugh test."   But  summations in  litigation            often have  a rough and tumble  quality; in fact,  one of the            defense  summations here  twice referred to  the government's                                         -10-                                         -10-            "desperation" to prove charges "they can't prove."  We do not            think  that the prosecutor's remarks on this case crossed the            line.   See generally United States  v. Ortiz-Arrigoitia, 996                    _____________ _____________     ________________            F.2d  436, 440-41 (1st Cir.  1993), cert. denied,  114 S. Ct.                                                _____ ______            1366  (1994).   Nor  was the  refusal  to give  the specially            requested instruction reversible error;  indeed, a jury would            not have made much sense of the requested language.                 Fourth.  At trial Bennett and Lussier sought access to a                 ______            police  interview  report  with  a  government witness,  Pete            McFarlane,  a  friend of  the  appellants who  was  with them            before  and  immediately after  the  attack.   The  interview            report, the  defendants believed, might have  some bearing on            McFarlane's  testimony that  Lussier  admitted  in the  post-            attack  meeting that  he was  holding the  gun when  Wing was            shot.   Defendants urged that  the interview report  might be            discoverable  under Fed. R. Crim.  P. 16, the  Jencks Act, 18                                                           ______            U.S.C.   3500, or Brady v. Maryland,  373 U.S. 83, 87 (1963).                              _____    ________            The trial judge reviewed  the report in camera and  concluded                                                 _________            that it was not discoverable.                 On  appeal, all  three bases  for disclosure  are urged.            Rule  16  does not  apply  since  its pertinent  language  is            directed  to  statements  made  by  a  defendant  to  a known            government agent,  United States v.  Burns, 15 F.3d  211 (1st                               _____________     _____            Cir. 1994), and a statement by Lussier or  any co-conspirator            to McFarlane immediately after the event is not even arguably                                         -11-                                         -11-            in that category.  Appellants suggest that Burns demands more                                                       _____            of the  government than  the bare minimum  prescribed in  the            rule; but  that is not what  Burns says.  Compare  15 F.3d at                                         _____        _______            215-16 n. 2.   The  Jencks Act requires inter alia production                                                    __________            of  writings that  are "substantially  verbatim"  recitals of            pre-trial statements  made by  a government witness  and that            relate  to the subject of  the witness' trial  testimony.  18            U.S.C.   3500(e)(2).  We  have reviewed the interview  report            at issue which contains only a few isolated direct quotations            (none  pertinent here)  and which  is neither  structured nor            phrased as  a verbatim report.   In our view the  trial court            did  not commit clear error in refusing to treat the six-page            report  as  a  substantially   verbatim  recordation  of  the            interviewee's own  words.   See United  States v.  Foley, 871                                        ___ ______________     _____            F.2d 235, 238-39 (1st Cir. 1989).                 Lussier offers a  clever gloss on the Jencks Act, urging            that  any  simple  statement  in  an  interview report--e.g.,                                                                    ____            "Lussier  held  the  gun"--must  because of  its  brevity  be            essentially  verbatim and  thus discoverable  under  the Act.            But  this attempt to divide up the document has been rejected            even in  the case of  isolated direct quotations,  Foley, 871                                                               _____            F.2d at 238-39.  We note also that the report (a formal typed            form) was clearly made after the interview and not during it.            United States  v. Consolidated  Packaging, 575 F.2d  117, 129            _____________     _______________________            (7th Cir. 1978) (requiring a contemporaneous recordation).                                         -12-                                         -12-                 The  Brady claim  is more  difficult for  the government                      _____            because the  interview report  does say that  Lussier carried            the gun,  but attributes  that information to  Bennett rather            than  Lussier.   The report  might thus  appear to  have some            impeachment value, possibly qualifying  it as Brady  material                                                          _____            under United States v. Bagley, 473 U.S. 667, 677 (1985).  The                  _____________    ______            inference  is pretty limited in  this case: not  only was the            meeting  a confusing one  but the  interview report  does not            exclude--and  may  even  invite--the inference  that  Lussier            acquiesced in the  suggestion that he  had been carrying  the            gun.                 In  all events, even if we assume that the report should            have  been produced  under Brady,  the failure  to do  so was                                       _____            harmless.   At trial,  both Bennett  and King  testified that            Lussier  had held the gun;  and while Bennett  had a personal            interest  in  so testifying,  King  did  not.    Further,  if            McFarlane had been "impeached" by the report in question, the            jury  would have been told, once again, that Lussier had held            the  gun.   At  the  post-attack meeting,  where  Lussier was            present, Bennett had no reason to lie and  good reason not to            do so.                 Fifth.   The last  noteworthy issue concerns  the aiding                 _____            and abetting instructions.   Bennett and Lussier were charged            in both firearms counts--the possession and the use  or carry            counts--both  as principals  and  on an  aiding and  abetting                                         -13-                                         -13-            theory under 18 U.S.C.   2.  As to both gun offenses, Bennett            and  Lussier say  that  the aiding  and abetting  instruction            permitted the  jury to convict without  the required scienter            (for example,  even if the jury believed  that the assistance            was unintentionally rendered).                 On the  possession  count,  the  jury was  told  that  a            defendant could  be convicted if he  "knowingly possessed the            firearm . . . or aided and abetted such possession"; parallel            language was  used on the companion count ("knowingly used or            carried  a firearm or aided and abetted the use or carrying a            firearm").  The appellants complain that the word "knowingly"            was not used  immediately before "aided and  abetted" in each            instance;  but   this  is  irrelevant  because   "aiding  and            abetting" was  separately defined in the  instructions, which            must be read as a whole.   United States v. Fontana, 948 F.2d                                       _____________    _______            796, 801 (1st Cir. 1991).                   In  the  aiding  and  abetting  definition  itself,  the            district court charged in pertinent part that "the Government            must  prove  beyond  a  reasonable  doubt  that  a  defendant            associated himself  with the  venture, participated in  it as            something  that he wished to  bring about, and  sought by his            actions to make it succeed."  This language obviously imports            a scienter element  ("wished to bring about";  "sought by his            actions"), and  it is the  precise language approved  by this                                         -14-                                         -14-            court in prior cases.  E.g., United States v.  Loder, 23 F.3d                                   ____  _____________     _____            586, 590-91 (1st Cir. 1994).                 But  our journey is not quite over.  The Loder language,                                                          _____            which  serves reasonably  well  in most  situations, may  not            perfectly cover  abnormal ones.  Here,  a potential ambiguity            exists: the term "venture" in Loder is intended  as catch-all                                          _____            for  the  notion  of  a  crime  committed  by  another  ("the            principal")  for  which  the  government  aims  to  hold  the            defendant  responsible as  an  aider or  abettor, making  the            defendant  "punishable as a principal."  18 U.S.C.    2.  See                                                                      ___            generally 1  Sand, et.  al, Modern Federal  Jury Instructions            _________          _______  _________________________________            para. 11.01 (1995).   Where only a single crime  is involved,            confusion is unlikely under Loder's language because there is                                        _____            only one venture.                 Here, however, the defendants  were charged in the first            count  with a drug possession conspiracy.  In theory the term            "venture,"  used only as  part of  the general  definition of            aiding  and abetting,  might lead  a jury  to think  that the            venture  in  question was  the  drug conspiracy  and  not the            possession or use-and-carry  offense.  If so, the  jury might            also  think that it could  convict the defendant  who did not                                                                      ___            personally possess  or use  or carry  a gun,  so long  as the            aider or abettor "wished to  bring about" the drug possession            "and sought by his actions to make [that venture] succeed."                                          -15-                                         -15-                 The problem, needless to say, is not that any element of            the offense was omitted from the charge, cf. United States v.                                                     ___ _____________            Lopez, No. 94-2277, slip op. at  12 (1st Cir. Dec. 14, 1995),            _____            but  that a  possible ambiguity  inhered in  the instruction.            The defendants  made several timely objections  to the aiding            and abetting  instructions at trial, although  their proposed            solutions were of questionable use.  But any ambiguity in the            charge was  irrelevant in Lussier's case  (the only evidence,            obviously  accepted   by  the  jury,  was  that  he  was  the            principal), and it was harmless in Bennett's case.                 Given   the  evidence,  Bennett  could  only  have  been            convicted as an aider and abettor.  But--as already related--            Madore, who supplied the gun, testified that bringing it  had            been discussed in advance and  that Bennett, Lussier and King            all  said they  wanted  it brought;  King,  who sat  next  to            Bennett in the  car, testified that he carried the gun in his            lap  without  concealment  for  at least  part  of  the ride.            Unlike Bennett, who claimed  to have had no knowledge  of the            gun,  King and  Madore were not  on trial.   If  there was an            ambiguity in the instruction, it did not affect the result.                 Appellants' remaining claims have been considered but do            not require discussion.  In a few instances, Bennett has made            claims  that are  not fully  developed, such  as his  cursory            attack  on  the  intoxication  instruction,  or  beyond   our            jurisdiction (e.g.,  the refusal  of  a downward  departure).                          ____                                         -16-                                         -16-            Other claims  made by  appellants are properly  presented but            seem to  us  hopeless  on  the  facts  (e.g.,  that  perjured                                                    ____            testimony was knowingly presented) or the law (the claim that            section  922(g)(1)  is  unconstitutional).    Scarborough  v.                                                          ___________            United  States,  431 U.S.  563  (1977)  (discussed in  United            ______________                                         ______            States v. Lopez, 115 S. Ct. 919 (1995)).            ______    _____                 The case for  appellants here has been well presented by            counsel, and we understand the practical pressure on lawyers-            -especially in criminal cases--to  resolve doubts in favor of            including  doubtful claims  along  with stronger  ones.   But            cases  with difficult issues now crowd the dockets.  At least            in opinion  writing, the  court's time  is best  reserved for            colorable  claims.  Cf. McIntosh  v. Antonio, 71  F.3d 29, 37                                ____________     _______            (1st Cir. 1995).                 Finally,  Bennett moved  earlier under  Fed. R.  App. P.            28(i) to  incorporate Lussier's brief generally  as to "those            facts, issues and  arguments . .  . that  may inure to  [his]            benefit" and  to  adopt  particular  arguments  in  Lussier's            brief.     The   motion,   previously   denied   subject   to            reconsideration, is effectively moot  since none of Lussier's            claims have  been accepted.   But  future counsel  using Rule            28(i)  should be aware of  the need to  connect the arguments            adopted  with the  specific facts  pertaining to  the movant.            United States  v. Saccoccia, 58  F.3d 754,  763-64 (1st  Cir.            _____________     _________            1995).                                         -17-                                         -17-                 Affirmed.                 ________                                         -18-                                         -18-
