USCA1 Opinion

June 14, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1819

UNITED STATES,

Appellee,

v.

RUSSELL DiNOVO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Boudin and Lynch, Circuit Judges,

______________
and Schwarzer,* Senior District Judge.
_____________________

____________________

Lawrence P. Murray
___________________

with whom

Henry F. Owens, III

____________________

and Owens
_____

Associates were on brief for appellant.

__________
Emily R. Schulman, Assistant
__________________

United States

Attorney, with

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

____________________

________________________

* Of the District of Northern California, sitting by designation.

Per Curiam.
__________

On December 9, 1992, officer John Albert of

the Cambridge Police

Russell

Department spotted

DiNovo driving

with a

male passenger

Camry traveling along Cambridge Street.

in traffic,

missing,

Albert observed that

that pieces of glass

appellant-defendant

in a

Toyota

When the car stopped

its right rear

were in the

window was

car's door frame

and that a screwdriver was inserted in the ignition.

A check

of the car's license

plate number revealed that the

car had

been

that day.

stolen earlier

police officers

Based on

shortly thereafter arrested

this information,

DiNovo and

the

passenger, Irving Lee.

During

both

the course

of the

men were wearing two

arrest, Albert

sets of clothes.

noticed that

Upon searching

DiNovo, police discovered what appeared to be a homemade mask

made out of a shirt sleeve.

the

police

police

wagon that

station.

A second mask was later found in

transported

search of

DiNovo and

the

Lee

Camry yielded

to the

a loaded

Beretta 9 millimeter semi-automatic pistol located underneath

the front seat of the car.

A palm print lifted from the butt

of the pistol matched DiNovo's left palm.

DiNovo

possession

was

of

922(g)(1).

Beretta,

At

evidence did

but

charged

with

firearm

trial,

in

the

he had

nevertheless

-2-2-

violation

DiNovo took

not establish that

he was

being

felon

of

in

18

knowing

U.S.C.

position that

the

ever possessed

the

convicted

by the

jury.

Because

DiNovo

had three

previous convictions

for violent

crimes, he was sentenced under the Armed Career Criminal Act,

18

U.S.C.

924(e), to 235 months' imprisonment.

On appeal,

DiNovo challenges both his conviction and sentence.

DiNovo first objects to the

of

cloth that the jury could

homemade masks.

that a robbery was

admission of the two pieces

reasonably have concluded were

The masks, together

with other indications

planned, helped to supply a basis for the

jury to infer a motive for DiNovo's possession of the weapon.

While the masks thus fall within the literal terms of Fed. R.

Evid.

404(b), DiNovo objects that the inference of a planned

robbery was too thin to satisfy Rule 404(b) and the potential

for prejudice too great to justify admissibility of the masks

under Fed. R. Evid. 403.

The district court's judgment on issues of this

normally

given wide

latitude.

Tierney Co., Inc., 43 F.3d

__________________

events,

the masks

1, 5

robbery was planned far

Espeaignnette v.
_____________

(1st Cir. 1994).

together with other

car, the double suits

the balancing

See
___

kind is

Gene
____

In

all

evidence--the stolen

of clothes--made the inference

that a

more than mere speculation.

As for

of need versus

prejudice under Rule

403, the

government had ample need for the motive evidence in order to

confirm DiNovo's

connection with

the weapon.

unfair prejudice

was quite limited compared

The

risk of

to 404(b) cases

inwhich evidence of actualprior crimes is regularly admitted.

-3-3-

DiNovo's second major objection relates

to the district

court's charge on the definition of possession.

court's charge

for the most

part described the

actual and constructive possession

conventional or

that the district

the

certain

including,

most

incidental

touching

or

DiNovo's main

court refused to

language

importantly,

concepts of

in terms that were either

generally helpful to DiNovo.

complaint is

charge

The district

proposed

an

handling

by

instruction

of the

include in

the

defense

that "[m]ere

object

does

not

constitute possession."

On appeal, DiNovo

argues that this

proposed

proper

of

request

was a

necessary in light of

statement

the law

DiNovo's theory that his print

and

on the

weapon might be explained by a mere touching.

On theory of the

defense grounds, DiNovo might arguably

have been entitled to some instruction that made clear to the

jury

that

not

every

incidental contact

with

the

automatically compelled the jury to find possession.

language proposed by DiNovo

to

an "incidental

essentially

handling

quoted

. .

directed

would never

language

overstatement, it

is

went much further.

. handling"

the

be

jury

that

enough to

regarded

is plain that

obliged to give this instruction.

-4-4-

of the

as

It

weapon

But the

extended

weapon,

such

an

and it
___

incidental

convict.

Whether

confusing

or

the district court

the

flat

was not

A defendant

who requests

an instruction is

obliged to

provide an instruction that accurately reflects the law.

See
___

United States v. Iaciofano, 734 F.2d 87, 90 (1st Cir.), cert.

_____________
_________
_____

denied,
______

469

U.S. 850

obliged to carve down

otherwise

(1984).

The

district judge

and preserve the unspoiled core

tainted piece

of

fruit.

In this

is not

of an

instance, the

district court, in response to DiNovo's request, modified the

possession

the

with

charge to say

that the defendant

weapon "knowingly" and

intent

to

"[k]nowingly means

exercise

firearm."

Not only

overstated

or confusing

had to possess

dominion

and

did the court

he possessed

control

over

the

properly reject DiNovo's

instruction,

but it

gave him

the

substance of what he might reasonably have requested.

DiNovo's third argument is that the district court erred

when, on a

request by the jury, it provided

magnifying

glass--presumably

during its deliberations.

court should

sought

the jury with a

to examine

exhibits--

DiNovo complains that the district

not have supplied this glass without asking the

jury about

its precise intended purpose

directions

as to its proper

use.

and giving limiting

Improper

use, DiNovo now

contends,

might distort the appearance of an exhibit.

At trial

DiNovo's counsel

the magnifying

into its

did

glass but

intended use or

DiNovo

identify for

objected to giving

never asked

the judge

give jurors any

the

-5-5-

district

the jury

to inquire

instructions, nor

court any

specific

potential

misuse

precautions

of

the

should be

magnifying

taken.

glass

against

Jury management

which

matters are

normally within the district court's sound discretion, and if

DiNovo wanted

questions to

be

asked or

imposed,

he was obliged to

say this to

There is

certainly no plain

error in

limitations to

be

the district judge.

the district

judge's

procedural

ruling

handling of the matter.

Finally,

pertaining

DiNovo

to

objects

his sentencing.

to

DiNovo

received the

pre-

sentence report on April 19, 1994, was given two continuances

at

his own request, and finally was scheduled for sentencing

on July

continue

13.

On

that date,

the sentencing

and

DiNovo's CJA

withdraw

counsel moved

because of

to

DiNovo's

dissatisfaction

with

counsel's representation

and DiNovo's

assertion that he might after investigation wish to challenge

the validity of

certain of the

prior convictions listed

in

the pre-sentence report.

Custis
______

v.

United States,
______________

narrowed the grounds on

attack

Act.

his

a prior

When at sentencing

he believed

sentencing

any of

Ct.

the Armed

DiNovo expressed a

investigated,

inquired of defense counsel

Custis
______

S.

which a defendant may

conviction under

earlier convictions

113

(1994),

at sentencing

Career Criminal

desire to have

district

court

and counsel explained that under

that DiNovo

his prior

the

1732

had no

basis to

convictions.

It was

attack at

at that

-6-6-

point

that the

district

court refused

to replace

defense

counsel or to continue the sentencing for a third time.

Neither

DiNovo

in the

district court

explained what

continuance.

convictions were

He

nor in

purpose would have

does not

claim

that

this court

been served

any

of the

obtained without representation

has

by a

prior

by counsel

nor

has

he pointed

sentencing

except

to any

other

a generalized

prior convictions.

Under

reason for

desire to

delaying his

investigate his

these circumstances one can hardly

say that the district court abused its discretion in refusing

a third continuance of the sentencing or that DiNovo has been

prejudiced by the district court's refusal.

In

the

closing

paragraphs addressed

DiNovo's brief on appeal says

misread

Custis and
______

that

this

record

limitations

misunderstand

that

DiNovo was

imposed

defense

by

them, his

this

issue,

that his counsel at sentencing

assistance of counsel at sentencing.

on

to

deprived of

It is by no means clear

counsel

Custis
______

effective

or

misunderstood

that,

misunderstanding had

if

he

the

did

any practical

importance in this case.

that

attacks

on

the

In all events, the ordinary rule is

adequacy of

normally considered

on direct

proceedings under 28

U.S.C.

trial

counsel

appeal, but are

2255.

See
___

are

not

reserved for

United States
_____________

v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert. denied, 114 S.
____
_____ ______

-7-7-

Ct. 1839 (1994).

This case illustrates the reasons

rule, and we invoke it here.

Affirmed.
________

for the

-8-8-