text:
    UNITED STATES of America, Appellee, v. Juan LABOY-DELGADO, Defendant, Appellant.
    No. 95-1863.
    United States Court of Appeals, First Circuit.
    Submitted May 6, 1996.
    Decided May 21, 1996.

      Jose C. Romo Matienzo, San Juan, PR, on brief, for appellant.
    John C. Keeney, Acting Assistant Attorney General, Theresa M.B. Van Vhet and Philip Urofsky, Criminal Division, U.S. Dept, of Justice and .Guillermo Gil, United States Attorney, Washington, DC, on brief, for appel-lee.
    Before SELYA and CUMMINGS, Circuit Judges, and COFFIN, Senior Circuit Judge.

       Of the Seventh Circuit, sitting by designation.

   SELYA, Circuit Judge.

On November 3,1993, a federal grand jury empaneled in the District of Puerto Rico indicted defendant-appellant Juan Laboy-Delgado (Laboy) for conspiring' to possess cocaine with intent to distribute, 21 U.S.C. §§ 841 & 846, attempting to import cocaine and conspiring to that end, 21 U.S.C. §§ 952, 960, & 963, and aiding and abetting the commission of these crimes, 18 U.S.C. § 2. Following Laboy’s conviction on all counts and the district court’s imposition of a 211-month incarcerative sentence, Laboy prosecuted this appeal. He finds no safe harbor. Determining, as we do, that his assignments of error lack merit, we affirm.

I. BACKGROUND

We elucidate the facts gleaned at trial in the light most flattering to the jury’s verdict. See United States v. Spinney, 65 F.3d 231, 233 (1st Cir.1995). We note at the outset that many of the pivotal facts come from testimony of Sonia Figueroa Sanchez (Figueroa), the former wife of a quondam eon-spirator, Zebedo Maisonet Gonzalez (Maiso-net), and from Maisonet himself.

In early 1990, certain individuals, Maisonet included, hatched a plan to import cocaine from Colombia to Puerto Rico by way of St. Maarten. Maisonet testified that a fellow rogue, Papo Montijo, sponsored the appellant for membership in the cabal. Maisonet discussed the venture’s prospects with the appellant in the spring of 1990, but forged no enduring alliance.

That summer, the wind shifted. Customs officials detained a conspirator attempting to carry cocaine into Puerto Rico on a commercial airline flight, and mechanical difficulties thwarted a seaborne pickup of cocaine in St. Maarten. As the gang pondered new strategies to transport contraband from St. Maar-ten to Puerto Rico, Montijo again floated the appellant’s name. This time the conspirators approached him and, after haggling over the prospective division of spoils, enlisted his services.

The appellant arranged for his cousin, Hector Guzman Rivera (Guzman), to ferry a shipment of contraband from St. Maarten to Puerto Rico. He (Laboy) and Maisonet planned to travel by boat to St. Maarten to receive the clandestine cargo preliminary to its transshipment. The planning process proved long on bravado and short on security. Figueroa attended the pivotal meeting at which details of the anticipated trip to and from St. Maarten were reviewed. At the government’s behest, she also tape-recorded telephone calls in which she, the appellant, and other coconspirators freely discussed the pending smuggle.

Fueled by Figueroa’s input, a federal narcotics agent, Victor Ayala, placed Guzman’s boat under surveillance on August 9, 1990. At around 11:00 a.m. on August 10, Ayala observed the appellant and a conspirator known only as “Jerry” lugging two heavy suitcases onto the boat. The men stayed aboard for approximately ten minutes and then departed without the suitcases. Late that morning, Guzman and Maria Sostre came aboard carrying a blue rug. Shortly before noon, the appellant reappeared, remained aboard for roughly half an hour, and left carrying a small travel bag. During the afternoon, various persons came and went, some bringing provisions. Near the end of the day the local authorities, fearing that the vessel was being readied for departure, boarded her. They found seventy-three kilograms of cocaine concealed in the ship (under the blue rug that Guzman had brought aboard), and detected traces of cocaine in the now-empty suitcases. The authorities also found four individuals aboard the ship: Edwin Burgos, Fabian Martinez, Maria Sostre, and Miriam Garcia. They arrested Guzman nearby.

The appellant had flown to Puerto Rico that day (sometime after delivering the suitcases) and was arrested there. Indictment, trial, conviction, and sentencing followed apace. This appeal ensued.

II. SUFFICIENCY OF THE EVIDENCE

The appellant challenges the sufficiency of the proof adduced against him at trial, insisting that the district court should have granted his timely motion for judgment of acquittal. See Fed.R.Crim.P. 29(a). The standard of appellate review is familiar: like the trial court, the court of appeals must determine whether the evidence proffered, arrayed in the light most favorable to the prosecution, enabled a rational jury to find each element of the offense beyond a reasonable doubt. See United States v. Valle, 72 F.3d 210, 217 (1st Cir.1995); United States v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, - U.S. -, 116 S.Ct. 522, 133 L.Ed.2d 430 (1995). In so doing, we must draw all reasonable evidentiary inferences in harmony with the verdict, see United States v. O’Brien, 14 F.3d 703, 706 (1st Cir.1994), and resolve all disagreement regarding the credibility of witnesses to the government’s behoof, see United States v. Taylor, 54 F.3d 967, 974 (1st Cir.1995). As long as the totality of the evidence presented, viewed through this glass, supports the jury’s verdict, it is legally irrelevant that a different jury, drawing alternative inferences, might have reached a different result. See United States v. Gifford, 17 F.3d 462, 467 (1st Cir.1994).

The appellant tries to place his insufficiency challenge into bold relief by emphasizing three points. None has force.

1. The appellant says that the government’s case falters because the evidence at trial did not precisely define his “specific role in the criminal enterprise.” To be sure, that sort of definition is helpful in setting sentencing ranges, see, e.g., U.S.S.G. §§ 3B1.1, 3B1.2, but to prove a defendant guilty of a narcotics-related conspiracy the government need not specify and prove with particularity the defendant’s exact role in the scheme. See, e.g., United States v. Carroll, 871 F.2d 689, 692-93 (7th Cir.1989). Put another way, the government need not prove facts beyond those that are necessary to establish the elements of the crimes charged, see United States v. Staula, 80 F.3d 596, 605 (1st Cir.1996), and neither the elements of a drug-conspiracy charge under 21 U.S.C. § 846 nor an importation charge under 21 U.S.C. § 952 include a definitive specification of the defendant’s role in the offense. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993) (discussing elements of offense under § 846), cert. denied, — U.S.-, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994); United States v. Nueva, 979 F.2d 880, 884 (1st Cir.1992) (discussing elements of offense under § 952), cert. denied, 507 U.S. 997, 113 S.Ct. 1615, 123 L.Ed.2d 175 (1993).

2. The appellant next decries the fact that much of the evidence against him came from a cooperating codefendant (Maisonet). The appellant suggests that Maisonet was presumptively untrustworthy because of his strong motivation to say what the government wanted to hear. This sort of suggestion can be molded into a powerful jury argument but it has little potency on appeal.

The persons most knowledgeable about the inner workings of criminal enterprises tend to be the criminals themselves. Thus, the government — which has no choice but to take its witnesses as it finds them — often must rely on blackguards and knaves, whose testimony is admittedly tinged with self-interest, to prove its allegations. Such flaws do not render the testimony inadmissible — it would be a surreal system of justice if only those who were without sin could offer evidence in a criminal case — but a witness’ involvement in the crime and his motive for turning on his erstwhile accomplices are fair game for defense counsel. The rules thus permit the witness’ credibility to be tested in the crucible of cross-examination. In this instance the appellant vigorously attacked Maisonet’s motives at trial, and the resultant credibility choice was for the jury, not for this court. See, e.g., O’Brien, 14 F.3d at 706.

3. Relatedly, the appellant bewails certain contradictions in Maisonet’s testimony, concluding that these contradictions rendered his testimony inherently unreliable. The asserted contradictions are mostly of peripheral interest; for example, Maisonet at one point suggested that the appellant invited Guzman to join the conspiracy, yet mentioned, on other occasions, that the conspirators had retained Guzman’s services before the appellant hove into view. Court cases, however, are not choreographed with the precision of a ballet. Some degree of contradiction is commonplace and, for the most part, the judicial system relies upon devices such as the cross-examiner’s vigor, the jurors’ common sense, and the trial judge’s practiced intuition to separate grain from chaff. Those checks and balances were fully in play here and, on this scumbled record, we think that the jury could reasonably have believed Maisonet’s testimony despite the asserted contradictions. See, e.g., United States v. Romero, 32 F.3d 641, 646 (1st Cir.1994) (explaining that the court of appeals “will not secondguess the jury’s decision to credit testimony which contains an inconsistency”); see also United States v. Johnson, 55 F.3d 976, 979 (4th Cir.1995); United States v. Jackson, 959 F.2d 81, 82-83 (8th Cir.), cert. denied, 506 U.S. 852, 113 S.Ct. 155, 121 L.Ed.2d 105 (1992).

We add an eschatocol of sorts. Rejecting the appellant’s insufficiency challenge comes more readily in this ease because the evidence against him went far beyond the fingerpointing of a turncoat. Figueroa’s testimony was little short of damning, and, moreover, the jury heard the tape-recorded conversations in which the appellant and others spelled out aspects of. the scheme. Appellant himself made inculpatory statements when arrested. Then, too, Agent Ayala observed the appellant delivering suitcases later found to have contained cocaine. In similar situations, where the government offered circumstantial evidence of defendants’ participation in drug crimes, combined with trace elements of drugs found in objects carried by those defendants, our sister circuits have had little difficulty in sustaining convictions against insufficiency challenges. See, e.g., United States v. Rodriguez, 993 F.2d 1170, 1175-76 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1547, 128 L.Ed.2d 197 (1994); United States v. Arango, 853 F.2d 818, 826 (11th Cir.1988). So it is here.

III. LIMITATION OF CROSS-EXAMINATION

The appellant complains that the district court erred in circumscribing his cross-examination of a government witness. Under the Confrontation Clause, every criminal defendant has a right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. This protection “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Rather, its primary purpose is to ensure that a defendant has a fair opportunity to cross-examine witnesses. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1434, 89 L.Ed.2d 674 (1986); United States v. Boylan, 898 F.2d 230, 254 (1st Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990). In defining the scope of this guarantee, the Court has “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of eross-examiriation.” Davis, 415 U.S. at 316-17, 94 S.Ct. at 1110.

While the right to test witnesses by cross-examination is fundamental, it is not unbridled. See, e.g., Boylan, 898 F.2d at 254; United States v. Chaudhry, 850 F.2d 851, 856 (1st Cir.1988); see also Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (pér curiam) (explaining that “[t]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish”) (emphasis in original). When a witness’ credibility is in- issue, the trial court may impose limits on cross-examination as long as the court grants the defendant sufficient leeway to establish “a reasonably complete picture of the witness’ veracity, bias, and motivation.” Boylan, 898 F.2d at 254. If the trial court imposes such limitations and the defendant thereafter challenges them on appeal, we review the record de novo to ascertain whether the court, overall, gave the defendant a reasonable chance to develop the whole picture. See United States v. Nelson, 39 F.3d 705, 708 (7th Cir.1994). If we find that the core concerns of the Sixth Amendment have been satisfied, we “will grant relief from the shackling of cross-examination only for manifest abuse of discretion.” Boylan, 898 F.2d at 254.

In this case, the appellant cites two specific instances in which the trial court cut off cross-examination, and avers that these rulings are insupportable. We examine each instance.

1. In the first iteration, the district judge directed defense counsel to pursue new avenues of examination after counsel queried Maisonet as to the chronology of events in St. Maarten on the day the drugs were seized. But this was not a pathbreaking expedition; counsel had thrice previously led Maisonet down the same road and Maisonet had consistently answered that he returned to Puerto Rico that morning but that he could not remember the precise time. Cross-examiners should be given reasonable latitude, especially in criminal eases, but they are not at liberty endlessly to repastinate the same terrain (whether or not they are satisfied with the answers elicited from a particular witness). In this instance we discern no prejudice in the district court’s refusal to let counsel go to the well for what would have amounted to a fourth time, and, accordingly, we detect no hint of either constitutional error or abuse of discretion. See, e.g., Boylan, 898 F.2d at 254-55; Chaudhry, 850 F.2d at 856.

2. In the second iteration, the district court prevented defense counsel from questioning Maisonet in detail regarding the terms and conditions of his plea agreement with the government. The appellant protests that this limitation prevented his counsel from fully impeaching Maisonet’s veracity.

The record belies the appellant’s protest. Defense counsel thoroughly examined Maiso-net anent the charges brought against him and the benefits that he expected to derive from his plea agreement. Most importantly, the court admitted the agreement itself into evidence, and defense counsel made profitable use of it. No more was exigible. See United States v. Ovalle-Marquez, 36 F.3d 212, 219 (1st Cir.1994) (holding that, where cross examination informed the jury of the benefit a witness garnered from a plea agreement, the district court could properly limit further cross-examination on the subject), cert. denied,-U.S.-, 115 S.Ct. 947, 130 L.Ed.2d 891 (1995); United States v. Maceo, 947 F.2d 1191, 1200 (5th Cir.1991) (similar), cert. denied, 503 U.S. 949, 112 S.Ct. 1510, 117 L.Ed.2d 647 (1992); United States v. Twomey, 806 F.2d 1136, 1139-40 (1st Cir.1986) (similar).

IV. PROSECUTORIAL MISCONDUCT

The appellant calumnizes several statements made during the government’s closing argument. He maintains that these improper statements tainted his trial and, concomitantly, that the lower court improvidently denied his motions for mistrial.

In regard to the first two statements attacked by the appellant, we conduct our review of the trial court’s rulings de novo and will set aside the verdict only if we find that “the prosecutor’s remarks were both inappropriate and harmful.” United States v. Wihbey, 75 F.3d 761, 771 (1st Cir.1996); accord United States v. Levy-Cordero, 67 F.3d 1002, 1008 (1st Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 1558, 134 L.Ed.2d 659 (1996). Challenged statements are considered harmful when, evaluated in the totality of the circumstances, they would probably have affected the outcome of the trial. See Wihbey, 75 F.3d at 771. In assessing harm, courts frequently look to such factors as the severity of the purported misconduct, the weight of the evidence supporting the verdict, the presence and likely effect of a curative instruction, and the prosecutor’s purpose in making the statement (i.e.: whether the statement was willful or inadvertent). See id. at 772; Sepulveda, 15 F.3d at 1187-88; United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987). Above all,, courts must refrain from examining challenged statements in a vacuum, but, rather, must look to context for assistance in determining both their meaning and their effect. See Sepulveda, 15 F.3d at 1187.

1. The appellant’s first complaint is with the prosecutor’s statement that “in the case at bar, there is no doubt and I believe my Brother Counsel would agree that a conspiracy existed.” When the statement was made, the appellant objected and the district court interrupted the prosecutor’s summation with an admonition to the jury that “[t]he objection was sustained so the statement is stricken and should not be taken in consideration by you.” We have consistently held that an immediate curative instruction dilutes (and usually fully dissipates) the potential prejudice from an improper statement. See, e.g., United States v. Rivera-Gomez, 67 F.3d 993, 998 (1st Cir.1995); Sepulveda, 15 F.3d at 1185.

Viewing this statement in context, see Sepulveda, 15 F.3d at 1187, we see no reason why the usual praxis should not apply. The appellant’s theory of the ease, as expressed in his opening statement, was that he was “not part of [the] criminal organization.” By like token, defense counsel acknowledged the conspiracy and referred to it in summation as an “orchestra,” conducted by Maisonet and others, in which appellant did not even play second fiddle. Given the appellant’s stated theory of the case, the prosecutor’s remark cannot easily be labelled as either “inappropriate” or “harmful.” And, moreover, the lower court cured any reasonable possibility of prejudice when it sustained the appellant’s contemporaneous objection and instructed the jury to ignore the offending statement. See, e.g., id. at 1185.

2. At trial, Figueroa stated that she left Puerto Rico for Milwaukee “because [she] found out that on August 10th the crew and the boat had been arrested in St. Maarten.” In summation, the prosecutor put a twist on this testimony, suggesting that Figueroa, after betraying the conspiracy by giving information to Agent Ayala, fled to Milwaukee “to protect herself.” The appellant objected, arguing that the statement implied that Figueroa feared that those conspirators still at large (or their cohorts) might attempt to do her harm. The trial court sustained the objection and cautioned the jury that the “statement is stricken and you should not take it in consideration for anything in this case.” The court simultaneously denied the appellant’s motion for a mistrial.

Viewed in light of the copious evidence of guilt that permeates the record, we cannot say that this remark warrants reversal. Though the prosecutor’s statement was untoward, its impact could not have been great. The phrase “to protect herself’ is inherently ambiguous, and there was no intimation that the witness feared that the defendant might try to injure her. We think that, on balance, the objectionable phrase represents no more than an isolated comment, unlikely to smear the appellant with facts not in evidence, and that the judge’s curative instruction sufficed to quell any prejudice. We therefore reject the appellant’s plaint that the wayward comment requires us to set aside his conviction. On the same basis, we likewise reject his plaint that the district court erred in failing to grant his motion for a mistrial. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994) (explaining that “it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record, will venture to reverse a trial judge’s on-the-spot decision that the interests of justice do not require aborting an ongoing trial”), cert. denied, - U.S. -, 115 S.Ct. 919, 130 L.Ed.2d 799 (1995).

3. The appellant also criticizes the prosecutor’s underscoring of the paucity of evidence supporting the appellant’s theory of the case. He objects particularly to the prosecutor pointing out that his character witnesses were not present in St. Maarten on the day of the denouement, and inviting the production of a percipient witness who could offer an alternative explanation of the events of August 10. The appellant’s point is that the prosecutor impermissibly drew attention to the appellant’s silence. See United States v. Lilly, 983 F.2d 300, 306-07 (1st Cir.1992) (reaffirming that the Fifth Amendment prohibits a prosecutor, directly or indirectly, from asking the jury to draw a negative inference from a defendant’s silence).

These statements did not transgress the appellant’s Fifth Amendment rights. When a defendant suggests that a prosecutor adverted to his silence, we must examine the challenged statement in context. See id. at 307. The key to our inquiry is “whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Id. (citations omitted). We will not “lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974).

Applying these principles, we are satisfied that the comments did not cross the line. The fairest characterization of the prosecutor’s argument — indeed, the only plausible characterization — is as an attempt to accentuate the general lack of testimony supporting the appellant’s position. No fewer than six individuals, not including the appellant, were on the vessel on August 10, so the prosecutor’s allusion logically and naturally referred to this cadre of individuals, not to the appellant himself. See, e.g., Sepulveda, 15 F.3d at 1187; United States v. Collatos, 798 F.2d 18, 20 (1st Cir.), cert. denied, 479 U.S. 993, 107 S.Ct. 594, 93 L.Ed.2d 595 (1986). And in all events, the district court’s forceful instructions regarding the appellant’s right not to testify resolved any conceivable ambiguity.

V. USE OF SELF-INCRIMINATING STATEMENTS

The appellant complains that he was not adequately advised of his rights when arrested, and that the court below should have prohibited the government from introducing the statements that he made into evidence. This argument need not detain us. The appellant neither moved to suppress the statements nor objected to their introduction at trial. At best, then, the standard of review is for plain error. See United States v. Olano, 507 U.S. 725, 730, 113 S.Ct. 1770, 1775, 123 L.Ed.2d 508 (1993). The plain error hurdle is high: the appellant must show (1) an error, id. at 732, 113 S.Ct. at 1776, that (2) is “obvious” or “clear under current law,” id. at 734, 113 S.Ct. at 1777, and that (3) “affect[ed] substantial rights.” Fed.R.Crim.P. 52(b).

In this instance there was no error, plain or otherwise. Agent Ayala testified without contradiction that both he and his deputy advised the appellant of his rights before they initiated any interrogation. Thus, the court below had a solid foundation on which to rest the admission of the disputed evidence.

VI. CONCLUSION

We need go no further. From aught that appears, the appellant was fairly tried and justly convicted. Consequently, the judgment of the district court must be

Affirmed.

      . Figueroa began cooperating with the authorities during the investigation. Maisonet joined her in a duet as part of a plea agreement negotiated between the date of his arrest and the date of the appellant's trial.

      . To the extent that the appellant claims the prosecution misfired by failing to show that he possessed some special skill needed by the conspirators, he has again strayed beyond the elements of the offense. His claim is, therefore, unavailing.

      . We note that the trial judge drew the jury's attention to the potential problems with testimony of this type, instructing the jurors, inter alia, that the testimony of informants and accomplices cooperating with the government “must he examined and weighed by [y°ul with greater care and caution than the testimony of ordinary witnesses.”

      .We say "asserted contradictions” because, for example, the jury could have found the supposed contradiction concerning who first hired Guzman to be more apparent than real. The testimony revealed that, during Guzman's earlier trip, he worked for a few low-level conspirators and had little contact with Maisonet or his principal partner. When Maisonet and the appellant thereafter discussed ways of transporting the cocaine, the appellant referred to Guzman only as his cousin, and not by name. Thus, Maisonet could have "hired" Guzman through Laboy in a very real sense, notwithstanding Guzman’s earlier brush with the enterprise.

      . On appeal, Laboy attempts to link the prosecutor's comment with Maisonet’s testimony that he was attacked at one point because he was suspected of being an informant. There is no basis either in the record or in the prosecutor’s summation for forging such a link.

      . We quote below the criticized remarks in their entirety:
      "He told you also about the two reputation witnesses and that I asked him an unfair question. Those aren't unfair questions. I asked him, "Were you there”. He wasn't there so he can’t tell us anything. You see, the issue is what happened that day and they are bringing witnesses to tell you about other things. Well, bring me a witness to tell me what happened there.
      What is a reputation witness going to say, He is a good friend. The person that says he was like my brother and that man that came here is a very good man and so is the other one but see, he didn’t know what Juan Laboy Delgado was doing in August of 1990 in St. Maar-ten because he was not there so he can’t testify as to that.”

      .In undertaking this analysis we assume arguen-do, but do not decide, that the appellant lodged a timely objection to this line of argument. In point of fact, no contemporaneous objection was raised. However, the appellant advanced an objection to this line of argument at the end of the prosecutor’s rebuttal and simultaneously moved for a mistrial.

      . Since we find that the prosecutor’s statement did not prejudicially highlight the appellant's failure to testify, we find no abuse of discretion in the district judge's denial of the concomitant motion for a mistrial. See Pierro, 32 F.3d at 617; Sepulveda, 15 F.3d at 1185.

      . Even if these elements are present, the court of appeals retains discretion to decide whether to take notice of a plain error. See Olano, 507 U.S. at 736, 113 S.Ct. at 1778. We are inclined to exercise that discretion sparingly, generally limiting it to instances in which the error, if uncorrected, would result in a miscarriage of justice or, put another way, would ”skew[] the fundamental fairness or basic integrity of the proceeding below in some major respect.” Taylor, 54 F.3d at 973.


source: Caselaw Access Project

author: STAHL, Circuit Judge.

license: Public Domain

text:
    WINNACUNNET COOPERATIVE SCHOOL DISTRICT, Plaintiff, Appellant, v. NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA, Defendant, Appellee. SCHOOL ADMINISTRATIVE UNIT # 21, Plaintiff, Appellant, v. NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA, Defendant, Appellee.
    Nos. 95-2068, 95-2069.
    United States Court of Appeals, First Circuit.
    Heard March 5, 1996.
    Decided May 23, 1996.

      Robert A. Casassa, Manchester, with whom Casassa and Ryan was on brief, for appellants.
    Gordon A. Rehnborg, Manchester, with whom Doreen F. Connor and Wiggin & Nourie PA were on brief, for appellee.
    Before SELYA, STAHL, and LYNCH, Circuit Judges.
   STAHL, Circuit Judge.

Plaintiff-appellants Winnacunnet Cooperative School District (“Winnacunnet”) and School Administrative Unit # 21 (“SAU #21”) appeal the denial of their summary judgment motions and the grant of summary judgment in favor of defendant-appellee, National Union Fire Insurance Company (“National Union”). In its ruling, the district court held that insurance policies issued by National Union did not cover certain legal claims asserted against them, and that there was no genuine issue of material fact as to the applicability of two policy exclusions. We affirm.

/.

Factual Background and Prior Proceedings

To explicate the insurance coverage dispute, we first recount the events underlying the claims against the insured parties, Win-nacunnet and SAU # 21.

In 1991, former Winnacunnet High School students Vance Lattime, Jr., Patrick Randall, and William Flynn pleaded guilty to the murder of Gregory Smart, the husband of the school media director, Pamela Smart (“Smart”). See State v. Smart, 136 N.H. 639, 622 A.2d 1197, 1202, cert. denied, — U.S. -, 114 S.Ct. 309, 126 L.Ed.2d 256 (1993). The students eventually testified for the state at the trial of Smart, who was convicted of first degree murder, conspiracy to murder and tampering with a witness. Id. 622 A.2d at 1200,1202. For their roles in the murder, Randall and Flynn are currently serving prison terms of forty-years-to-life, and Lat-time is serving thirty-years-to-life (each with twelve years deferred). Cecelia Pierce, a former student intern of Smart’s who had known about the murder plan before it was carried out, eventually assisted the authorities in securing information leading to Smart’s arrest. Id. 622 A.2d at 1201-02. Pierce was not charged with, or convicted of, any crime related to the murder.

In 1993, Lattime, Randall, Flynn and their parents, Naomi and Vance Lattime, Sr., Patricia and Frank Randall, and Elaine Flynn, filed a lawsuit in New Hampshire state court alleging that Winnaeunnet was negligent in hiring and supervising Smart. They claimed that Winnacunnet’s negligence resulted in “inappropriate relationships and dangerous effects” and caused Smart to commit various acts that, in turn, led to:

injuries including but not limited to emotional distress, mental instability, physical incarceration, impairment of judgment, thereby causing them to suffer criminal responsibilities, incarceration, irreparable harm through loss of liberty, lost earnings, earning capacity, loss of education by and through [Winnaeunnet], financial loss, separation of Students from their parents and family, loss of consortium by the parents, loss of consortium by the Students, etc.; all to the damage of the plaintiffs.

In a separate state action, Pierce sued SAU # 21, the entity that oversees the operations of Winnaeunnet High School, alleging that it was negligent in hiring, training and supervising Smart. Pierce claimed that the alleged negligence caused her “loss of education, loss of past, present and future earnings, loss of reputation and standing in the community, and mental anguish.” Neither writ of summons in the underlying state actions specifically mentioned the murder of Gregory Smart.

Winnaeunnet and SAU #21 (collectively, “the School”) turned to National Union to defend and indemnify them in the state actions under consecutive “School Leaders Errors and Omissions” insurance policies, issued for one-year periods beginning November 17, 1990 and 1991. Under the policies, National Union was obligated to defend any action and pay damages resulting from “any Wrongful Act (as herein defined) of the Insured or of any other person for whose actions the Insured is legally responsible.” The policies defined ‘Wrongful Act” as “any actual or alleged breach of duty, neglect, error, misstatement, misleading statement or omission committed solely in the performance of duties.”

National Union declined coverage, citing the following policy exclusions:

This policy does not apply:
(a) to any claim involving allegations of fraud, dishonesty or criminal acts or omissions; however, the Insured shall be reimbursed for all amounts which would have been collectible under this policy if such allegations are not subsequently proven;
(b) to any claims arising out of (1) false arrest, detention or imprisonment; (2) libel, slander or defamation of character; (3) assault or battery; (4) wrongful entry or eviction, or invasion of any right of privacy;
(c) to any claim arising out of bodily injury to, or sickness, disease or death of any person, or damage to or destruction of any property, including the loss of use thereof.

Upon National Union’s denial of coverage, the School petitioned the New Hampshire Superior Court for Rockingham County for a declaratory judgment ordering National Union to defend and provide coverage in the students’ and parents’ (the “underlying plaintiffs”) lawsuits. National Union removed the action, based on diversity jurisdiction, to the United States District Court for the District of New Hampshire. On cross motions for summary judgment, the district court denied the School’s motions and granted National Union’s motions, reasoning that policy exclusions (b) and (c) barred coverage because the underlying claims arose out of the assault, battery, bodily injury and death of Gregory Smart. The court did not discuss the applicability of exclusion (a). The School appeals.

II.

Discussion

A. Summary Judgment Standard of Review

We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party and drawing all reasonable inferences in that party’s favor. Barbour v. Dynamics Research Corp., 68 F.3d 32, 36 (1st Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 914, 133 L.Ed.2d 845 (1996). Summary judgment is warranted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

In this case, the summary judgment victor,.National Union, bore the burden of proving lack of coverage. See N.H.Rev. Stat. Ann. § 491:22-a (providing that, in petitions to determine liability insurance coverage, the burden of proof is on the insurer). Where, as here, “the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(e) — that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting on other grounds). In response, the non-moving party must either submit a supportable request for additional discovery time or “produce evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial,” id., and in so doing, that party “may not rest on mere allegations or denials of his pleading.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505,2514, 91 L.Ed.2d 202 (1986).

B. Analysis

The School contends that exclusions (b) and (c), which preclude coverage for “any claims arising out of ... assault or battery” and “any claim arising out of bodily injury to ... or death of any person,” do not apply because the underlying writs alleged none of these excluded acts. Moreover, the School argues, the assault and death of Gregory Smart need not be shown to prove the negligence claims and thus, they do not “arise out of’ those acts. National Union responds that the exclusions apply because the alleged injuries, which constitute a critical element of the negligence actions, are entirely related to the murder of Gregory Smart and its aftermath.

New Hampshire courts have consistently viewed “arising out of’ as a “ ‘very broad, general and comprehensive term ... meaning originating from or growing out of or flowing from.’” Merrimack Sch. Dist. v. National Sch. Bus Serv., Inc., 140 N.H. 9, 661 A.2d 1197, 1199 (1995) (reading phrase broadly in context of indemnity agreement which is itself strictly construed) (quoting Carter v. Bergeron, 102 N.H. 464, 160 A.2d 348, 353 (1960) (internal alteration omitted) (construing insurance policy)). Indeed, the concept embodied in the phrase “arising out of’ appears to be something broader than the concept of proximate causation. See Carter, 160 A.2d at 353 (observing that injuries need not have been “directly and proximately caused by the use of the insured vehicle” to be deemed to “arise out of’ that use). Here, if the underlying plaintiffs’ negligence claims arise out of any of the excluded acts, National Union need not defend or indemnify the School against those claims.

While a duty to defend may be found solely on the facts pleaded in the cause of action, a court may inquire into the underlying facts “to avoid permitting the pleading strategies, whims, and vagaries of third party claimants to control the rights of parties to an insurance contract.” M. Mooney Corp. v. United States Fidelity & Guar. Co., 136 N.H. 463, 618 A.2d 793, 796-97 (1992); see also Titan Holdings Syndicate, Inc. v. City of Keene, 898 F.2d 265, 271 (1st Cir.1990) (noting that a court must review the facts alleged in the underlying suit and that “the legal nomenclature the plaintiff uses to frame the suit is relatively unimportant”) (discussing New Hampshire law). We find it appropriate in this case to look beyond the eonclusory pleadings to determine the applicability of the disputed exclusions.

In.their depositions, all of the underlying plaintiffs state that the reason they brought the action was their belief-that the. school was negligent in hiring Smart and in supervising her activities with the students. Thus, not surprisingly, and consistent with their writs, the underlying plaintiffs unanimously conclude that the School’s alleged breach of duty caused their harm. Whether or not that is true, however, does not resolve the dispositive issue in this appeal: whether the underlying plaintiffs’ claims “arise out of’ the murder of Gregory Smart.

An essential element of the negligence claim is the resulting damage. See Trudeau, v. Manchester Coal & Ice Co., 89 N.H. 83, 192 A. 491, 492 (1937) (explaining that “actual damage is an essential element” of negligence actions that “[are] brought not to vindicate a right but to recover compensation for negligently inflicted personal injuries”). Thus, where the damages arise entirely out of excluded acts, the whole claim does as well. Cf. All Am. Ins. Co. v. Burns, 971 F.2d 438, 442 (10th Cir.1992) (concluding that alleged injuries in otherwise-covered negligence action triggered exclusions); Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1081 (9th Cir.1985) (finding no coverage where the plaintiffs would have no claim for relief against the insured if the alleged misconduct “[had] not manifested itself in the injury”). Here, if the underlying plaintiffs cannot prevail on their negligence claims without showing how the murder of Gregory Smart affected them, then their claims must “arise out of’ the excluded acts of assault, battery, bodily injury and death.

All of the evidence in the record points to the murder and its aftermath as the source of the injuries. For example, Pierce testified in her deposition that the reason for her “loss of education” was that she missed many days of school because she had to testify at Smart’s trial, eventually left Winnacunnet during her junior year, and had trouble getting into college because she was uncomfortable asking Winnacunnet for help with her applications. She stated that her “loss of earnings” resulted from having to quit her job in order to testify and assist in the trial. She attributed her “loss of reputation” to the fact that she was recognizable from her involvement in the trial and complained that she lost friends as a result. Pierce also testified that her mental anguish stemmed from the foregoing and acknowledged that if Gregory Smart had not been murdered, she would not have sued.

During Randall’s deposition, he asserted, “I’m not suing the school because I’m in jail,” but also stated “[i]f I never got caught for killing Greg Smart, I would have never brought a lawsuit.” He agreed that his involvement in the murder and subsequent incarceration were the reasons why he (1) lost his liberty and employment opportunities, (2) was unable to finish high school, (3) was separated from his parents and fellow Win-nacunnet students, and (4) suffered emotional pain. While he declared, “I still suffered the harm whether I got caught or whether I got away with [the murder],” that assertion does .not negate the fact that his injuries derived from his involvement in the murder.

Flynn testified that he believed that because of the School’s negligence, “something happened that may have been averted,” and acknowledged his incarceration is the reason why he suffers from being separated from his parents. Lattime acknowledged that neither he nor his parents would have brought the action if he had not been involved in the murder.

The parents’ deposition testimony on this issue also reveals that the injuries were related to their children’s involvement in the murder. For example, Patricia Randall testified that she brought the lawsuit “[b]ecause what happened to my son I don’t want to happen to anybody else” and acknowledged that “what happened” to her son was his incarceration for his involvement in the murder. Frank Randall testified that while he thought Smart should have been properly supervised, he was also suing because his son was incarcerated. Elaine Flynn testified that her reason for bringing the suit was her belief that the School’s negligence caused “the situation that occurred.” Naomi Lat-time stated that “had [the School] followed up or done anything to investigate a faculty/student relationship, ... possibly this never would have happened or gone as far as it did.”

While the School’s alleged negligence in hiring and supervising Smart could have caused the underlying plaintiffs injuries unrelated to the murder, nothing in the record supports the existence of any such injury. The underlying plaintiffs’ allocation of blame for their suffering, while indicative of their belief that the School was at fault, does not obviate the fact that the record evidence establishes that all of the alleged damages (e.g., harm from loss of liberty, lost education and earnings, separation of students and parents) originate from, or “arise out of,” the murder. The School has failed to rebut, with evidence sufficient to raise a genuine issue of material fact, National Union’s showing that the exclusive source of the underlying plaintiffs’ injuries (and, therefore, their claims) was the murder of Gregory' Smart and its attendant excluded acts of assault, battery, bodily injury and death.

The facts of this case are not unlike those in All Am. Ins. Co. v. Burns, 971 F.2d 438, 440 (10th Cir.1992), involving a church bus driver who was convicted of sexually assaulting two children whom he was transporting. The victims sued the church and its board members alleging, inter alia, negligent hiring. Id. The board members turned to their insurer for defense and indemnification, but the court found applicable a policy exclusion for “personal injury arising out of the willful violation of a penal statute.” Id. at 441. The court explained that a negligence action depends not only upon a breach of duty, “ ‘but also upon damage or injury suffered by the plaintiff as a consequence of the violation of duty.’ ” Id. (quoting 57A Am. Jur.2d Negligence § 142, at 202-03 (1989)). Thus, the court found that the general negligence allegations in the complaint did not compel coverage because the claimed injuries undeniably stemmed from the sexual assault. Id. at 442.

Our resolution of this case is consistent with cases in other jurisdictions, relied upon by the district court, recognizing that an exclusion for a claim arising out of an assault also bars coverage for a claim that an insured negligently allowed an assault to occur. See, e.g., United Nat’l Ins. Co. v. Entertainment Group, Inc., 945 F.2d 210, 213-14 (7th Cir.1991) (applying Illinois law); Audubon Indem. Co. v. Patel, 811 F.Supp. 264, 265 (S.D.Tex.1993) (applying Texas law); St. Paul Surplus Lines Ins. Co. v. 1401 Dixon’s Inc., 582 F.Supp. 865, 867-68 (E.D.Pa.1984) (applying Pennsylvania law). These cases held that coverage was barred because the excluded acts, assault and battery, were the immediate cause of the injury giving rise to the action.

The School argues that these cases are completely inapposite because (1) unlike those cases, the underlying plaintiffs here are not the ones who suffered the assault and (2) in any event, the writs do not allege a negligent failure to prevent assault. We are not persuaded. The School’s first “distinction” runs afoul of exclusion (c), which applies in the case of bodily injury or death of “any person.” As to the second, from the evidence pertaining to the alleged damages here, it is as if the underlying plaintiffs, though styling their claims as negligent hiring/supervision, have alleged that the School negligently permitted an assault to occur. Cf. United Nat’l Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 354 (2d Cir.1993) (denying coverage where “plaintiff is seeking to recover by ‘dressing up the substance’ of one claim, here a battery, in the ‘garments’ of another, here negligence”). Finally, it would make little sense to bar coverage for an action brought by the estate of Gregory Smart — the one who suffered the bodily injury and death — but find coverage for an action by those who actually inflicted the injury and who claim damages relating entirely to that event.

III.

Conclusion

While undoubtedly there are cases in which a negligent hiring or supervision claim does not seek compensation for damages arising entirely out of excluded acts, this is not one of them. For the foregoing reasons, the judgment of the district court is affirmed. Costs to appellee.

      . The facts at trial, see Smart, 622 A.2d at 1200-02, established that Smart became involved sexually with Flynn. During the affair, Smart told Flynn that they would have to kill her husband if their relationship was to continue. They planned the murder in detail, and Smart frequently spoke to Pierce of the plans. Flynn enlisted the help of Randall and Lattime after his first attempt at murdering Gregory Smart failed. On the day of the murder, Flynn, Randall and Lattime (with another hoy) drove to Smart's empty residence, and, while Lattime waited in the car, Flynn and Randall ransacked the home to create the appearance of a burglary. When Gregory Smart returned home, Flynn and Randall forced him to his knees, and while Randall held his head down at knife point, Flynn shot him once in the head.

      .Interestingly, Pierce named only SAU #21 as a defendant while the other students and their parents named only Winnaeunnet. Both actions allege, inter alia, negligent hiring/employment although it appears from the record that SAU #21 is the entity that hired Smart. In any case, no party has raised any issue in this regard to us, and because the policies issued to SAU #21 list Winnaeunnet as an additional insured, we treat the present coverage question as unaffected by the difference in the underlying named defendants.

      . At oral argument, the parties informed us that Pierce has received $9,000 in settlement of her claim.

      . In New Hampshire, a writ of summons is the initial pleading in a civil action at law. For simplicity, we will refer to this pleading as a "writ.”

      . National Union concedes that the policies would have covered the claims but for the exclusions.

      . The duty to defend is broader than the duty to indemnify, as an insurer may be obligated to defend a groundless lawsuit that ultimately does not give rise to indemnification. United States Fidelity & Guar. Co. v. Johnson Shoes, 123 N.H. 148, 461 A.2d 85, 87 (1983).

      . Further support for the conclusion that the alleged damages flow entirely from the students’ involvement in the murder is found in the notice of claim sent to Winnacunnet, which states in part:
      [Winnacunnet’s negligence] directly resulted in the manipulative relationship with Pamela Smart, which ultimately caused the loss of liberty to [the students]. Moreover, their parents lost any rights of parental enjoyment with their sons, including but not limited to loss of parental rights, loss of consortium, etc. [Lat-time’s parents] were also required to expend exorbitant funds, in excess of $70,000.00, in defense of criminal charges brought against their son. As a result of these damages, the Plaintiff[s] demand maximum amount of monetary damages allowable under the Statutes and/or the policy limits of the insurance of the School insurance policy, whichever is greater.

      . We note that the district court carefully reviewed the School’s motions to reconsider its summary judgment ruling, permitting the parties to supplement their pleadings on the very issue of the source of the claimed injuries. The School failed then to produce evidence establishing any issue of material fact on this question. Finally, at oral argument before this court, counsel for the School stated that Pierce "felt much anguish” on the night of the murder, and thus, she suffered whether or not the murder was committed. This assertion is too little to late. Not only is it unsupported by any record evidence, the purported "anguish” stems from the murder conspiracy and likely falls within exclusion (a) which bars coverage for "any claim involving allegations of ... criminal acts.”

      .The School relies on Durham City Bd. of Educ. v. National Union Fire Ins. Co., 109 N.C.App. 152, 426 S.E.2d 451, 455, review denied, 333 N.C. 790, 431 S.E.2d 22 (1993), involving identical exclusions in a similar errors and omissions policy. In that case, a student who allegedly had been raped by a school coach sued the school board for, inter alia, negligent hiring and supervision. Id. 426 S.E.2d at 454. In a brief and conclusoiy analysis, the court found that the exclusions did not bar the duty to defend because the allegations were for "money damages suffered as a result of ... negligent supervision” and did not include the rape as a "necessary feature.” Id. 426 S.E.2d at 456, 457.
      We find this perfunctory treatment unpersuasive. Unlike that court, we are not content to decide the coverage issue based solely on the allegations on the face of the writ. Here, the underlying plaintiffs' damages, a "necessary feature” of their negligence claim, have all been shown to be inextricably related to the excluded acts.

      . Because we agree with the district court's well-reasoned conclusion that policy exclusions (b) and (c) barred coverage of the claims against the School, we need not reach the issue of the applicability of exclusion (a).


author: BAILEY ALDRICH, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff, Appellee, v. Tad A. PAGE, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Allen J. ADAMS, Defendant, Appellant.
    Nos. 95-1835, 95-1836.
    United States Court of Appeals, First Circuit.
    Heard Feb. 5, 1996.
    Decided May 24, 1996.

      R. Scott Miller, Jr., by appointment of the Court, Boston, MA, for Allen J. Adams.
    Peter Clifford, by appointment of the Court, Kennebunk, ME, for Tad A. Page.
    Rebecca K. Troth with whom Jessica Dun-say Silver, Washington, DC, Deval L. Patrick, Assistant Attorney General, Jay P. McCloskey, United States Attorney, Bangor, ME, and John S. Gleason III, Portland, OR, Assistant United States Attorney, were on brief for appellee.
    Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.
   BAILEY ALDRICH, Senior Circuit Judge.

Defendants Allen Adams and Tad Page pled, guilty to three counts of conspiracy and interference with the civil rights of others in September of 1992. They now object to virtually every step of the court’s application of the Sentencing Guidelines and underlying statutes to their offenses. We affirm.

According to pre-sentence reports accepted by the court, in the early hours of September 19, 1992, Adams accosted Ruben Gonzales, Oscar Luna and Emiliano Valenzuela as they attempted to enter a convenience store, calling them “f_ Mexicans” who should go back to Mexico where they “belonged,” and offering to send them back in a body bag. Page joined Adams, who grabbed Page’s handgun from inside his truck, stuck it to Gonzales’ temple and threatened to “blow his head off.” An employee called the police, whereupon Gonzales and his companions drove off with a fourth friend who had remained in their car. Page jumped in his truck and followed, with Adams in the passenger seat and the gun between them, and two cohorts riding in back. Two other carloads of their friends joined the chase. Driving about 75 miles an hour, Page pulled up behind Gonzales’ car, fired seven shots into the air, and at Adams’ urging, two more directly into the back of the vehicle and two at the ground behind it. One bullet struck Luna in the arm, another lodged in the headrest behind Gonzales’ head. Page then slowed and turned back. Luna was taken to a hospital shortly, treated for a gunshot wound to his right upper arm and released approximately 90 minutes later. He lost use of his arm and was unable to work for three weeks, and continued to suffer residual pain for some time.

Pursuant to a plea agreement, Adams and Page each pled guilty to conspiracy to hinder others in the free exercise of federally secured rights, in violation of 18 U.S.C. § 241 (count I), racially motivated interference with Gonzales’ use of a public accommodation, in violation of 18 U.S.C. §§ 245(b)(2)(F) and 2 (count II), and interference with Luna’s use of same, in violation of 18 U.S.C. §§ 245(b)(4)(A) and 2 (count IV). In return, the government dismissed the remaining counts charging interference with the rights of the two other men, and use of a firearm in connection with a crime of violence.

Defendants were sentenced July 21, 1995. The court made the same sentencing calculations for both defendants, to which neither objected. Applying USSG § 2H1.3(a)(3), the court determined that the underlying offense for both counts II and IV was “aggravated assault,” having determined that both involved use of “a dangerous weapon with intent to do bodily harm.” See § 2A2.2 and comment, (n.l). Allowing enhancements for Luna’s injury, § 2A2.2(b)(3)(B), discharge of a firearm, § 2A2.2(b)(2)(A), and obstruction of justice, § 3C1.1, it arrived at a combined offense level of 30, deducted three for acceptance of responsibility, § 3E1.1, for a total offense level of 27. Page, with no prior convictions, faced an imprisonment range of 70 to 87 months, and Adams, who has a record, faced 78 to 97 months. The court imposed 70 months on Page, and 88 on Adams, and assessed each $370 in restitution.

The bulk of defendants’ appeal proceeds on the mistaken notion that the aggravated assault provision, § 2A2.2, applies only if the victim suffered “serious bodily injury,” which they contend was not the ease for either count. Serious bodily injury, however, is only one of several alternative bases for applying the aggravated assault provision:

“Aggravated assault” means a felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) intent to commit another felony.

USSG § 2A2.2, comment, (n.l). (Emphasis added.) Thus simple intent to do bodily harm of any kind, without regard to the degree actually suffered, if any, may support a finding of aggravated assault and application of the far heftier base offense level and enhancements than provided for under the “minor assault” guideline that defendants would prefer the court to apply. The court unassailably found that firing multiple gunshots at an occupied and moving vehicle “is bound to result in hitting a tire, gas tank, person, something that can only be calculated to end up in bodily harm,” and therefore that both counts II and IV fit the aggravated assault guideline. Defendants’ effort to void this finding by pointing out that the bullet that actually struck Luna was one that had been aimed at the ground, and simply ricocheted upward into the vehicle, does not advance their claim.

Neither the court nor the parties focussed, however, on § 2A2.2’s additional requirement that the assault be “felonious.” The argument that count II, resulting in no injury to Gonzales, is not “felonious” for the purpose of applying § 2A2.2 was not specifically articulated to the district court. Because we find it was at least implicitly raised and pursued by defendants’ multiple efforts to attack the propriety of applying § 2A2.2 to count II, and the government addressed the issue without contending review was foreclosed, we reach it despite perhaps imperfect preservation below.

Our first question is, quite simply, what does the guideline mean by “felonious?” Although commentary to § 2A2.2 defines a host of terms and phrases, no definition for felony or “felonious” is provided or referenced. Prior to enactment of the Guidelines a felony had long been defined as “any offense punishable by death or imprisonment for a term exceeding one year.” 18 U.S.C. § 1 (June 25, 1948), repealed by Sentencing Reform Act of 1984, Pub.L. 98-473, Title II, § 218(1)(1), 98 Stat. 2027 (repeal effective Nov. 1, 1987). The Guidelines perhaps obviated the necessity of § 1, but nowhere refute or replace its felony definition. In fact, a provision unrelated to § 2A2.2 defines a felony precisely according to the repealed statute. See USSG § 4A1.2(o). An intent to incorporate this pre-existing definition into the Guidelines where appropriate thus seems clear. We conclude, therefore, that “felonious,” as used in § 2A2.2, means “punishable. by death or a term of imprisonment exceeding one year.”

The penalty provision of § 245(b) in force at the time of the assaults provided that offenders

shall be fined not more than $1,000, or imprisoned not more than one year, or both; .and if bodily injury results shall be fined not more than $10,000, or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.

18 U.S.C. § 245(b) (amended Sept. 13, 1994). Count II is therefore felonious only if it resulted in bodily injury. Gonzales himself suffered none, thus count II qualifies only if Luna’s gunshot wound can be said to have resulted from defendants’ violation of Gonzales’ rights as well as Luna’s. According to defendants, the problem with this is two-fold: it unjustifiably stretches the language of § 245(b) and, because Luna’s injury already sustains increase in the applicable punishment for count IV, runs afoul of the prohibition on multiple punishments contained in the double jeopardy clause of the Constitution.

We find nothing in the statutory language to support reading the penalty provision of § 245(b) to permit enhancement only in cases of bodily injury to the intended victim of the particular offense. Nor is there anything indicating an intent to restrict penalty enhancement to a single count when multiple counts aimed at several individuals end up causing but a single bodily injury. First, it is plain from the structure of § 245(b) that the penalty enhancement applies to each and every listed offense that “results” in bodily injury, regardless of whether the victim of the particular offense was the one injured. Second, the unqualified phrase, “if bodily injury results,” unambiguously signifies that there is no safe haven for a perpetrator of aggravated assault against many that happens to result in bodily injury only to one. Cf. United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971). The court found that the offense behavior underlying both counts included two bullets aimed directly at the car — that only Luna was physically injured is immaterial to the conclusion that the violations of both Luna’s and Gonzales’ civil rights each “resulted” in the bodily injury sustained by Luna, rendering both counts subject to penalty enhancement under § 245(b). Count II is therefore “felonious” for the purpose of applying USSG § 2A2.2.

Defendants’ claim that this reading unconstitutionally subjects them to multiple punishments for the same offense is also unavailing. There is no question that the offenses in sub-sections (2)(F) and (4)(A) of § 245(b), at least when committed against different individuals, describe discrete and separately punishable crimes, with higher sentences authorized for each offense resulting in bodily injury (or death). The multiple punishments prohibition of the double jeopardy clause “merely prohibits a sentencing court from imposing a stiffer punishment than the legislature intended.” Catala Fonfrias v. United States, 951 F.2d 428, 425-426 (1st Cir.1991) (citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983)), cert. denied, 506 U.S. 834, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992). In Fonfri-as, relying on both text and legislative history, we held that a penalty provision identical to § 245(b) clearly contemplated that a single “result” could be the consequence of more than one covered crime, and consequently upheld imposition of two consecutive life sentences for a single death resulting from defendant’s commission of two separate offenses. Id. at 426. So, here, Luna’s injury, the result of two separate offenses, can support penalty enhancement for each without raising double jeopardy concerns.

Defendants next complain of the court’s refusal to group all three counts together, which would have saved them at least a two-level increase, see § 3D1.4, but we are unable to discern anything out of step in the court’s rote application of the grouping guideline. See USSG § 3D1.2 and comment, (n.5).

Defendants also attack the court’s finding that Luna’s wound was . a “serious bodily injury,” which added four to the offense level for count IV. See § 2A2.2(b)(3)(B). Adams asserts, first, error of law in the court’s use of the Guideline definition, because it does not follow Congress’ language used to define crimes and set minimum or maximum sentences. There is no reason why the Guidelines may not make their own classifications within the statutes, and hence definitions which the courts must observe, so long as these are not internally inconsistent or in violation of the Constitution or a federal statute. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). We see no such problem here. Second, both defendants claim clear error in the court’s factual determination that a bullet wound to the upper arm which took the victim to the hospital (90 minutes) and left him work-disabled for three weeks “constitute[d] the impairment of a function of a bodily member,” thereby falling within the Guideline definition of what is serious. To impair, generally, means to diminish or decrease. There is no requirement of duration, nor does the Guideline definition impose one with respect to this or any of the other examples given. See Jarecki v. G.D. Searle, 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961) (“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings. ...”). Whether impairment for a moment ranks as serious, cf. United States v. Thompson, 60 F.3d 514, 516 (8th Cir.1995) (unconsciousness from assault is impairment of mental facilities), three weeks disability should be sufficient. Cf. United States v. Moore, 997 F.2d 30, 37 (5th Cir.1993) (bullet in leg, extremely painful, two weeks disability; court did not designate which element was met); United States v. Reese, 2 F.3d 870, 879 (9th Cir.1993) (fractured elbow, arm in a sling), cert. denied, — U.S.-, 114 S.Ct. 928, 127 L.Ed.2d 220 (1994). We discern no clear error. 18 U.S.C. § 3742(e); United States v. Garcia, 34 F.3d 6, 10 (1st Cir.1994).

Defendants’ remaining contentions have been implicitly disposed of by the foregoing discussions, or do not merit further reflection.

Affirmed.

      . Section 2H1.3 has been deleted by consolidation with § 2H1.1, effective Nov. 1, 1995, but was still operative at the time of defendants’ sentencing.

      . Under § 2A2.2, degree of bodily injury is relevant only to determining how many levels to add — two for “bodily injury,” four for "serious bodily injury,” and three for something in between. See § 2A2.2(b)(3). Defendants also dispute the court’s addition of four levels under this provision, which we address post.

      . We note that if count II cannot be considered an aggravated assault, defendants’ combined offense level would be no more than 25,.yielding a guideline range of 57-71 months for Page, and 63-78 for Adams, permitting sentences of up to 13 and 15 months less than they received, respectively. Cf. United States v. Newman, 982 F.2d 665, 672 (1st Cir.1992), cert. denied, - U.S.-, 114 S.Ct. 59, 126 L.Ed.2d 28 (1993).

      . There is no question that Luna's injury supports enhancement for count IV.

      . The Senate Judiciary Committee Report on the history of the bill explained the graduated penalty provision as follows:
      If no one is actually harmed, penalties are limited to a $1,000 fine and 1 year imprisonment; if bodily injury results, the maximum penalties are a $10,000 fine and 10 years imprisonment; and if death results ...
      S. Rep. No. 721, 90th Cong., 2d Sess. (Nov. 2, 1967), reprinted in 1968 U.S.C.C.A.N. 1837, 1846. (Emphasis added.)

      . Section 245 was enacted along with the penalty enhancement revisions to §§ 241 and 242 considered in Catata Fonfrias, via the same 1968 bill. See Pub.L. 90-284, Title I, § 101(a), Apr. 11, 1968, 82 Stat. 73.

      . The Guidelines define “serious bodily injury” as:
      injury involving extreme physical pain or the impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. As used in the guidelines, the definition of this term is somewhat different than that used in various statutes.
      USSG § IB 1.1, comment. (n.l(j)).

      . We note that court held two hours hospital emergency room did not constitute "hospitalization.” 997 F.2d at 37.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Elpidio G. SANTOS, also known as Indio, and Victor Alejo, Defendants-Appellants, Juan Garcia, Defendant.
    Nos. 1881, 1882, Dockets 94-1602(L), 94-1618.
    United States Court of Appeals, Second Circuit.
    Argued June 28, 1995.
    Decided July 28, 1995.
    Vacated and Remanded March 4, 1996.
    Decided May 22, 1996.

      Christine E. Yaris, New York City, for Defendant-Appellant Elpidio G. Santos.
    Juan A. Campos, New York City, for Defendant-Appellant Victor Alejo.
    David C. Esseks, Assistant United States Attorney, (Mary Jo White, United States Attorney, Alexandra Rebay, Assistant United States Attorney, Office of the United States Attorney for the Southern District of New York, New York City, of counsel), for Appel-lee.
    Before: VAN GRAAFEILAND, JACOBS and GABRANES, Circuit Judges.
   PER CURIAM:

Defendants Elpidio Santos and Victor Ale-jo (the “defendants”) operated a cocaine distribution center on West 188th Street in Manhattan, and were convicted following a jury trial in the United States District Court for the Southern District of New York (Haight, /.), of, inter alia, using and carrying a silenced firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The district court denied the defendants’ post-trial motions to set aside those convictions. United States v. Santos, No. S 91 Cr. 724, 1992 WL 232057 (S.D.N.Y. Sept. 2, 1992). The defendants then appealed their convictions on the ground that insufficient evidence supported the jury’s verdict that they “used” the firearm in question, as that term is employed by section 924(c)(1), during the drug transaction for which they were convicted. We affirmed. United States v. Santos, 64 F.3d 41 (2d Cir.1995).

On March 4, 1996, the Supreme Court granted the defendants’ petition for writ of certiorari, vacated our decision and remanded the case to this Court for reconsideration in light of Bailey v. United States, — U.S. -; 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Santos v. United States, — U.S.-, 116 S.Ct. 1038, 134 L.Ed.2d 186 (1996) (mem.). For the reasons stated herein, we vacate the defendants’ convictions under section 924(c)(1) and remand for resentencing.

BACKGROUND

In June 1991, a confidential informant for the Drug Enforcement Agency (the “DEA”) observed Elpidio Santos and Victor Alejo sell two kilograms of cocaine to two unidentified purchasers in an apartment on West 188th Street in Manhattan. On August 18, 1991, that informant and another DEA informant met Santos, Alejo and Juan Garcia at the same apartment. At that meeting, the informants indicated that they wished to purchase two kilograms of cocaine from the defendants. When an informant asked to test the cocaine, Garcia produced and opened a one-kilogram bag of cocaine and the informant tested it. Santos, 1992 WL 232057 at *2. Satisfied with the goods, the parties agreed to the sale and one of the informants left the apartment, ostensibly to obtain money for the drugs. At that point, DEA agents arrested the defendants.

During a search made pursuant to a previously issued search warrant, agents found, inter alia, five loaded firearms and ammunition; the one-kilogram package of cocaine that the informants had tested; another one-kilogram package of cocaine located in an oven storage drawer in the kitchen of the apartment; and a loaded .22 caliber firearm equipped with a silencer. Id. at *2-*3. The silenced firearm was wrapped in brown paper, and had been placed in the oven storage drawer with the gun handle facing toward the door of the drawer.

The defendants were charged and convicted after a jury trial of conspiring to distribute, and to possess with intent to distribute, cocaine, in violation of 21 U.S.C. § 846; distributing, and possessing with intent to distribute, cocaine, in violation of 21 U.S.C. § 841(b)(1)(B); and using and carrying the silenced firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). At trial, a DEA agent testified that the gun did not need to be unwrapped to be fired: “All you had to do was stick your finger through the bag and it was ready to go.” There was no evidence adduced that the gun was brandished by the defendants or that the informants were otherwise made aware of its existence during the drug deal. In response to special verdict questions, the jury found that both defendants used the silenced handgun in connection with the trafficking crimes.

DISCUSSION

Section 924(c)(1), in relevant part, imposes a 5-year minimum term of imprisonment for any person who “during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm.” 18' U.S.C. § 924(c)(1) (emphasis added). Also relevant to this appeal, section 924(c)(1) imposes a mandatory thirty-year sentence for, inter alia, the use of a silencer-equipped firearm. The defendants moved at the close of the government’s case, and moved again after the jury returned the guilty verdicts, for acquittal on the section 924(c)(1) counts with respect to the silenced gun. The district court denied those motions, and imposed the mandatory thirty-year sentence on both defendants. The defendants appealed on the ground that their convictions under section 924(e)(1) were not supported by sufficient evidence.

We affirmed, relying on our interpretation of the term “use” under section 924(c)(1) as “requir[ing] possession of a gun under circumstances where the weapon is so placed as to be an integral part of the offense.” United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 493 U.S. 858, 110 S.Ct. 166, 107 L.Ed.2d 123 (1989). As we explained, “if the firearm had even the potential to facilitate a drug trafficking crime we will affirm the conviction” for using a firearm. Santos, 64 F.3d at 45 (emphasis added) (citing Smith v. United States, 508 U.S. 223, 236-39, 113 S.Ct. 2050, 2058-59, 124 L.Ed.2d 138 (1993)).

On December 6, 1995, the Supreme Court decided Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472. That . case consolidated the petitions of two defendants who were each convicted under section 924(c)(1) of using or carrying a firearm during and in relation to a drug trafficking offense. Petitioner Roland Bailey was arrested after a lawful search of his automobile revealed one round of ammunition and 30 grams of cocaine in the passenger compartment, and a large amount of cash and a loaded nine-millimeter pistol in the trunk. Id. at-, 116 S.Ct. at 503-04. Petitioner Candisha Robinson was arrested after undercover officers purchased crack cocaine from her on two occasions. A subsequent lawful search of Robinson’s apartment revealed an unloaded .22-caliber pistol inside a locked trunk in the bedroom closet. Id. at-, 116 S.Ct. at 504.

Robinson and Bailey were separately convicted under section 924(c)(1) in the United States District Court for the District of Columbia, and appealed. After initial opinions affirming Bailey’s conviction, United States v. Bailey, 995 F.2d 1113 (D.C.Cir.1993), and reversing Robinson’s conviction, United States v. Robinson, 997 F.2d 884 (D.C.Cir.1993), the District of Columbia Circuit reheard the consolidated appeals in banc and affirmed both convictions. United States v. Bailey, 36 F.3d 106 (D.C.Cir.1994) (in bane).

The Supreme Court reversed. The Court first agreed with the Court of Appeals that “use” under section 924(c) “must connote more than mere possession.” Bailey, — U.S. at - , 116 S.Ct. at 506. But the Court rejected the “proximity and accessibility standard” that the District of Columbia Circuit had employed (which is substantially similar to the standard formulated in this Circuit, cf. United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988)), because it “provides almost no limitation on the kind of possession that would be criminalized; in practice, nearly every possession of a firearm by a person engaged in drug trafficking would satisfy the standard.” Id. The Court held that in order to support a conviction under section 924(c), the “Government must show active employment of the firearm.” Id. (emphasis added). The Court emphasized that under that standard, “a firearm can be used "without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.” Id. at -, 116 S.Ct. at 507.

In the absence of evidence that Bailey or Robinson “actively] employed]” a firearm, the Supreme Court reversed both judgments for firearms “use” under section 924(c)(1). However, Bailey and Robinson were also charged with “carrying” a firearm under section 924(c)(1). Because the Court of Appeals did not consider liability for “carrying,” the Supreme Court remanded the case “for consideration of that basis for upholding the convictions.” Id. at-, 116 S.Ct. at 509.

There was no evidence adduced at trial that Santos or Alejo actively employed the silenced firearm. It is undisputed that the gun remained in the oven drawer throughout the commission of the crime; that the defendants did not refer to or mention the gun; and that the informants were unaware during the crime of the gun’s presence. It could be argued that the defendants made “use” of the silenced handgun by stowing it where it would be readily available if one or another defendant had gone to the oven drawer, even if only to retrieve the second kilogram of cocaine. But matters did not proceed that far, and Bailey forecloses a finding of liability on that basis: “where an offender conceals a gun nearby to be at the ready for an imminent confrontation .... ‘use’ cannot extend to encompass this action. If the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not ‘used.’ ” Id. at-, 116 S.Ct. at 508. Upon reconsideration in light of Bailey, the defendants’ convictions for “use” of the silenced firearm therefore cannot be sustained.

Nor could the defendants’ convictions be sustained on the ground that the weapon was “carried” within the meaning of section 924(c)(1). We have recognized that “[n]either the legislative history of section 924(e)(1) nor case law in this circuit suggests] that the term ‘carry1 should be construed as having any meaning beyond its literal meaning.” Feliz-Cordero, 859 F.2d at 253. Accordingly, we have construed that term narrowly and have required “at least a showing that the gun [was] within reach during the commission of the drug offense” in order to sustain a conviction for “carrying” a firearm. Id.; see also United States v. Pineda-Ortuno, 952 F.2d 98, 103 (5th Cir.) (in non-vehicle eases, “ ‘carrying’ requires a showing that the gun was in reach during the commission of the drug offense”), cert. denied, 504 U.S. 928, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992).

The government introduced evidence at trial that the silenced firearm could have been readily fired without removing it from its brown paper wrapping. But the government introduced no evidence which would tend to show that the silenced gun was “within reach” of the defendants during the drug transaction. Indeed, the district court found that the weapon was “hidden in the oven in the kitchen that was across a hallway from the living room” where the transaction took place. Santos, 1992 WL 232057 at *9. As in Feliz-Cordero, there is no evidence that the silenced firearm was “within reach of either defendant.” 859 F.2d at 254. Accordingly, the defendants’ convictions cannot be sustained under section 924(c)(1).

CONCLUSION

The convictions of the defendants under section 924(c)(1) for using or carrying the silenced weapon are vacated, and this case is remanded to the district court for resentenc-ing.

      . Garcia was a co-defendant of Santos and Alejo at trial, but did not appeal his conviction.

      . The defendants were not charged with any crime in connection with the other firearms that were found in the apartment.

      . Count three of the indictment on which the defendants were convicted charged that they "willfully and knowingly did use and cany firearms, namely ... a .22 caliber handgun which was then equipped with a firearm silencer.” Accordingly, we may uphold the convictions of the defendants for canying the silenced handgun if sufficient evidence supports that finding. See Bailey, - U.S. at -, 116 S.Ct. at 509 (remanding for consideration of liability for "carrying” firearms).


author: JON 0. NEWMAN, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Mohammed A. SALAMEH, Nidal Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, and Ahmad Mohammad Ajaj, also known as Khurram Kham, Defendants-Appellants.
    Nos. 94-1312L, 94-1313CON to 94-1315CON.
    United States Court of Appeals, Second Circuit.
    Argued April 29, 1996.
    Decided May 9, 1996.

      Lawrence M. Stem, New York City, for defendant-appellant Abouhalima.
    Jeremy Schneider, Rothman, Schneider, Soloway & Stem, New York City, for defendant-appellant Ayyad.
    Frank Handelman, New York City, for defendant-appellant Salameh.
    Maranda Fritz, Fritz & Miller, New York City, for defendant-appellant Ajaj.
    J. Gilmore Childers, Asst. U.S. Atty., New York City, for appellee.
    Before: NEWMAN, Chief Judge, McLAUGHLIN and CABRANES, Circuit Judges.
   JON 0. NEWMAN, Chief Judge:

Pending before the Court is a motion to reinstate appeals by four defendants convicted of various offenses in connection with the April 26, 1993, bombing of the World Trade Center. Following conviction by a jury, the four defendants were sentenced on May 24, 1994. All four defendants filed notices of appeal, and this Court established a briefing schedule.

On June 23, 1995, defendants Abouhalima and Ajaj filed in this Court separate motions to remand their cases to the District Court for consideration of motions they wished to present to the District Court seeking to vacate the judgments of conviction on various grounds. The motions were heard on July 18, 1995, with counsel for the movants and counsel for defendants Salameh and Ayyad in attendance. Though the four defendants initially took differing positions with respect to the appropriateness of an immediate remand, by the end of the hearing, all four defendants requested this Court to remand their cases to the District Court. Accordingly, on July 18, 1995, this Court issued an order (the “Remand Order”) “remanding this appeal to the district court for further proceedings. Appeal to be reinstated pursuant to USA v. Jacobson, 15 F.3d 19 (2d Cir[.] 1994) by letter to the Clerk of this Court within 10 days of entry of order following disposition of motion on remand.”

Several events occurred thereafter in the District Court, but for purposes of the pending motion, we need recount only the following. Counsel for Ajaj informed Judge Duffy that the motion papers she had previously presented to the Court were preliminary and that she required additional time to present a final motion. At a conference with counsel on July 26,1995, Judge Duffy informed counsel that all motions based on newly discovered evidence were denied because the proffered evidence was not new. Turning next to the requests of defendants Abouhalima, Ayyad, and Ajaj for a hearing on their claims of ineffective assistance of trial counsel, Judge Duffy scheduled a hearing for August 7, 1995. The District Judge also stated that trial counsel would be called to testify and that the claim of ineffective assistance of trial counsel resulted in a waiver of the attorney-client privilege as to conversations between trial counsel and their clients.

Abouhalima and Ajaj then filed petitions in this Court for writs of mandamus, seeking various forms of relief. On August 9, 1995, this Court issued the following order (the “Denial of Mandamus Order”):

The mandamus petitions issued in the captioned cases hereby are denied, with leave to renew in the event that the district court fails to:
1. receive the government’s written responses to the motions that were the subject of our remand order of July 18, 1995, and
2. conduct such evidentiary hearings as it may deem necessary to determine the issues presented no earlier than 30 days following the date the responses are received, and
3. rule specifically on each issue raised by the said motions.

On October 16, 1995, Ajaj filed in the District Court a final version of his motion challenging his conviction. On November 16, 1995, the Government filed its responses to the motions then pending in the District Court.

On November 17,1995, Judge Duffy held a conference with counsel. He initially stated that he had received the case back from the Court of Appeals “without any instructions as to why it was being remanded.” Then, referring to this Court’s Denial of Mandamus Order, he stated, “The order claims not to be a mandamus, but in fact is a mandamus. The order specifically says: Denied, except if the District Court fails to do this and that. Okay.”

Judge Duffy then discussed what he determined to be the two principal claims underlying the defendants’ motions for a new trial— newly discovered evidence and incompeteney of trial counsel. He reiterated his previously expressed view that the claims based on newly discovered evidence had presented nothing new, although he also stated that he would not “start” with that issue, thereby implying that he had not yet finally ruled on that aspect of the claims. Turning to the ineffective assistance of counsel claim, Judge Duffy expressed concern that the presentation of this claim would inevitably disclose proffers of evidence that would risk prejudicing the jury pool from which juries would be selected for forthcoming trials of other defendants charged in connection with the World Trade Center bombing. Because of this concern, he offered the defendants the choice of either proceeding with their counsel claims at a hearing on December 4,1995, or else waiting for a considerable period of time, which he described as “at least a year.”

On April 16,1996, all four defendants jointly filed the pending motion to reinstate their appeals from the judgments of conviction. Alternatively, they seek reassignment of their District Court motions to a different judge.

Discussion

Initially, we deem it appropriate to comment on certain aspects of our initial remand ruling and our subsequent ruling on the mandamus petitions. The Remand Order specified only that the case was remanded “for further proceedings.” Though that open-ended direction evidently afforded the District Court less guidance than it deemed appropriate, it permitted the Court to entertain whatever collateral attacks upon the judgments of conviction that the defendants wished to present. Rather than prescribe a precise course for the District Court to follow, the Remand Order permitted the District Court itself to determine the appropriate course of “further proceedings.”

The order denying the mandamus petitions was perceived by the District Court as an order that is “in fact” a mandamus since it specified three circumstances under which the defendants would have leave to renew their petitions. The Denial of Mandamus Order, however, was not a mandamus order. The petitions seeking mandamus were denied, not granted. This Court, like all courts, is capable of crafting orders that convey obligatory directions to those parties properly subject to the Court’s jurisdiction, including, where appropriate, judicial officers subject to this, Court’s mandamus jurisdiction.

Though the Denial of Mandamus Order did not issue a writ of mandamus, it employed language frequently used by courts to state the conditions under which the party seeking a writ of mandamus has leave to reapply for the writ. Such language is typically used when mandamus is sought to secure judicial action that has long been delayed. Rather than choose between the extremes of ordering immediate action, which might unduly disrupt the conduct of business in a district court, and denying the writ without comment, which might be misperceived as tolerating the delay that has occurred, an appellate court will sometimes deny the petition “without prejudice to renewal” in the event that the matter under advisement in the district court is not decided within a stated period of time, often 60 or 90 days. See, e.g., NLRB v. Long Island College Hospital, 20 F.3d 76, 80 (2d Cir.1994). That language does not order action in the district court, but it does convey the appellate court’s preference that action should be taken. Usually the preferred action is taken. If not, the petitioner may return to the appellate court, at which time the appropriateness of then issuing a writ of mandamus receives plenary consideration.

In the pending matter, in which jurisdiction was originally transferred to this Court by the filing of notices of appeal, the parties that sought and were denied a writ of mandamus have elected not to renew their applications, but instead, joined by their co-defendants, have decided to seek the remedy of reinstating their appeals. That choice of remedy encounters the Government’s threshold objection that we lack jurisdiction to grant the requested relief. The jurisdictional issue requires consideration of this Court’s decision in United States v. Jacobson, 15 F.3d 19 (2d Cir.1994).

Jacobson slightly altered this Court’s prior practice applicable to a pending appeal in which it became appropriate for some further action to be taken in the district court. Previously, we would enter an order requesting certain action to be taken in the trial court (in Jacobson, supplementing the record), then state that we “retained jurisdiction,” and not issue a mandate. That formulation created uncertainty as to the district court’s jurisdiction to act while jurisdiction was “retained” in the appellate court. Jacobson announced a new procedure whereby this Court, after directing the action to be taken in the district court, would issue the mandate, and the mandate would “state the conditions that will restore jurisdiction to this court.” Jacobson, 15 F.3d at 22. That procedure eliminates any question as to the district court’s jurisdiction and enables this Court to provide, if appropriate, for the automatic restoration of appellate jurisdiction, without the need for a new notice of appeal. This Court’s Remand Order followed the Jacobson procedure.

The Government’s view that we lack jurisdiction to consider the pending motion to reinstate appellate jurisdiction is mistaken. It rests on the incorrect premise that the conditions specified in a mandate for the restoration of jurisdiction are exclusive. Thus, in this case, the Government contends that jurisdiction cannot be restored until Judge Duffy decides the pending motions. However, a court of appeals always has authority to restore appellate jurisdiction over a case that has been remanded to a district court. Such authority has regularly been exercised by this and other courts in granting a motion to recall a mandate in a case remanded to a district court. See, e.g., Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988); Dunton v. County of Suffolk, 748 F.2d 69, 69 (2d Cir.1984); see also Sargent v. Columbia Forest Products, Inc., 75 F.3d 86, 89 (2d Cir.1996); Sparks v. Duval County Ranch Co., 604 F.2d 976, 979 (5th Cir.1979) (in banc), aff'd on other grounds sub nom. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).

The Jacobson procedure does not bar this Court from exercising its authority to resume appellate jurisdiction. Where circumstances change, we may determine that the course of action originally contemplated by our mandate is no longer appropriate. Though the Government is correct in asserting that jurisdiction follows the mandate, see United States v. Rivera, 844 F.2d 916, 921 (2d Cir.1988), and that “[t]he effect of the mandate is ... to remove [a ease] from the jurisdiction of this Court,” Ostrer v. United States, 584 F.2d 594, 598 (2d Cir.1978), we nevertheless may determine that it is appropriate to restore jurisdiction by recalling the mandate. The specification of conditions to restore jurisdiction under the Jacobson procedure cannot be exclusive. Otherwise, we would have divested ourselves permanently of authority to exercise our appellate jurisdiction.

On the merits of the pending motion, we conclude that the circumstances now existing in the District Court make it appropriate to restore appellate jurisdiction at this time. The delays that have ensued and will ensue in connection with defendants’ collateral challenges to their convictions were not foreseen at the time of the Remand Order. The initial delay resulted from problems, whether or not avoidable, in finally submitting defendants’ motions. The prospect of an extended future delay results from the risks perceived by Judge Duffy that would arise from a hearing of the defendants’ motions in this case contemporaneously with proceedings in related eases. We need not make any assessment of whether the delays that have occurred or those that are contemplated are warranted. All we decide on this motion is that the circumstances now confronting the defendants justify their decision to prefer to resume their appeals from the judgments of conviction, rather than await a hearing and disposition of their collateral attacks.

The Government apprehends that granting the pending motion will permit litigants to pretermit trial court consideration of remanded matters whenever they become “disenchanted” with the course of district court proceedings. Affirmation in Opposition to ■Motion for Reinstatement at 13. That fear is groundless. The opportunity to seek reinstatement of a remanded appeal does not assure success. This Court retains full authority to distinguish between meritorious applications and tactical maneuvers.

Of somewhat greater force is the Government’s concern that reinstatement of the appeals will bring before this Court new matters injected into the record in connection with the pending collateral attacks, matters that might require fact-finding and that have not been adjudicated by the District Court. We believe that concern can be adequately dealt with by the merits panel to which these appeals will be assigned. In granting the motion to reinstate the appeals, we restore to our jurisdiction only the appeals for which notices of appeal were previously filed, ie., the appeals from the four judgments of conviction.' It will be up to the panel hearing those appeals to determine, upon proper application, whether appellate jurisdiction should be exercised to any additional extent and to what extent, if any, matters inserted into the record after the judgments of conviction should be considered.

Accordingly, we recall the mandates in this ease, and grant the motion to reinstate the appeals of the four defendants. By restoring our appellate jurisdiction over these appealed judgments, we thereby divest the District Court of jurisdiction to grant any relief that alters those judgments. See Fed.R.Crim.P. 33 (“[I]f an appeal is pending, the court may grant the motion [for a new trial] only on remand of the case.”). Since the briefs of defendants Abouhalima, Ayyad, and Salameh were filed some time ago, we grant those defendants 60 days to file supplemental briefs. Ajaj shall file his brief within 60 days, the Government shall have four months from the expiration of the 60-day period to file its brief, the defendants shall have 30 days to file reply briefs, and the appeals will be available for argument as early as the week of December 15,1996.. In granting the motion to reinstate the appeals, we do not adopt appellants’ characterizations of the proceedings in the District Court. The alternative request for reassignment of the pending motions in the District Court to a different judge (which is not entirely an al-temative request since the new trial motions remain pending) is denied.

      . Presumably, what was occurring was a partial restoration of jurisdiction in the district court for a limited purpose.

      . By restoring appellate jurisdiction over the judgments, we do not impair the authority of the District Court to deny any motions seeking to alter the judgments, see United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and we express no opinion on the authority of the District Court to act upon any request for relief that might be made to facilitate the ultimate consideration of the pending motions to collaterally attack the judgments.