USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1281

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE G. SCHNEIDER,

Defendant, Appellant.

____________________

The

opinion

of this

court

issued

April

17,

1997, should

changed as follows:

Page

18,

interference.

line 9:

Change

the

word

inference

to the

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1281

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE G. SCHNEIDER,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Robert B. Mann with

________________

whom

Mann & Mitchell

________________

was

on

brief

appellant.
Richard W. Rose,
________________
Sheldon Whitehouse,
___________________

Assistant

United States

United States

Attorney,

United States.

____________________

April 17, 1997

____________________

Attorney,
was on

with

brief

for

BOUDIN, Circuit Judge.

_____________

on

multiple counts of mail

presenting two

Lawrence Schneider was convicted

and wire fraud

difficult issues.

One

and now appeals,

concerns the district

court's refusal to allow Schneider's expert medical testimony

proffered

relates

as

pertinent to

state

to the denial of Schneider's

on jury-questionnaire

On

his

both issues, we

of mind;

other

new trial motion based

information about

agree with the

the

one of

the jurors.

district court's outcome

and affirm.

What

although

Schneider did

his

state

of

was

largely undisputed

mind

was

very

much

at

in

trial,

dispute.

Schneider ran two businesses from

his home in Warwick, Rhode

Island,

selling

engaged

in

buying

restoration of old houses.

financial

May

and

estate

and

In mid-1990, Schneider was under

pressure and unable to pay his bills.

1990 and continuing through

credit a

real

Starting in

October 1990, he ordered on

variety of goods, including

computer equipment and

jewelry, the total value of which exceeded $200,000.

Beginning

shortly thereafter, Schneider began to resell

the same goods and pocket

October 1990,

the money.

Schneider placed 25

Between June 1990

and

classified advertisements

in

the Providence

goods

in question

false

stories

acquired them.

government

daily newspaper,

at deep

about

offering to

discounts.

the origin

of

He gave

the

goods

resell the

purchasers

or how

Schneider paid nothing to his suppliers.

describes

this as

a classic

he

The

"bust-out" scheme.

See, e.g., United States v. DeVincent, 632 F.2d 147, 149 (1st
___ ____ _____________
_________

Cir.), cert. denied, 449 U.S. 986 (1980).

____________

In December

with six counts

based on his

scheme.

fraud

1994, Schneider

was

indicted and

charged

of wire fraud and three counts of mail fraud

use of such

18 U.S.C.

facilities in

1343, 1341.

the conduct of

his

The government's theory of

was that Schneider never intended to pay for the goods

but ordered them with

and bilking the

relied upon

the aim of reselling them

sellers.

In

addition, the government

an affirmative misstatement, made

Schneider's credit

immediately

applications, that

also

on several of

he had 35

employees,

which was untrue.

Schneider did

not dispute the core

events described by

the government, but argued that he did not have the requisite

specific

intent

businesses,

an

He

pointed

out that

he had

a home and a good credit rating, so his behavior

made no sense

argues on

to defraud.

as a

rational criminal act;

appeal, "that his behavior

understanding

of the

defendant's

it followed,

he

is inexplicable absent

mental

status."

At

trial, he sought to introduce medical evidence to explain his

behavior.

The

proffered evidence was

One was Dr. Wartenberg,

and

addiction

testimony from two doctors.

who specialized in internal medicine

medicine;

he

-4-4-

proposed

to

testify

that

Schneider's capacity and judgment were significantly impaired

by

misprescription

during the

also

and

overprescription

relevant period.

prepared

to testify

of

medical drugs

A psychiatrist, Dr.

to

impaired

Roth, was

judgment, based

on

chemical dependency and major depression with probable mania.

This testimony, of which

more will be said later,

was taken

as an offer of proof outside the presence of the jury.

In

due

course,

the

district

judge

ruled

that

the

testimony would

not be admitted.

The court's explanation is

summed up in the final sentences of a longer oral ruling:

It seems to

me that the evidence does

that the Defendant

to accept this
mens
the

did not act purposefully,

evidence as a defense

rea manipulates the

intent

not suggest

required

circumstances,

that

under

considered

evidence,

the Court will

objection

to any

[of lack of]

concept of intent beyond

and

having

that

offer of

all

all

the

of

the

sustain the government's

that proof

before the

jury and Defendant may have an exception.

As a preface to this conclusion, the district court described

in

F.2d

some length the opinion

in United States
_____________

v. Pohlot, 827
______

889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988),
____________

discussing

the pertinence

of

psychiatric

testimony

in

murder-for-hire case.

After this evidentiary ruling, the case was tried in May

1995.

The jury

deadlocked on eight counts and

one count.

In October

1995, Schneider was

remaining

eight counts.

The district

-5-5-

acquitted on

retried on

court stood

the

by its

earlier ruling that the medical testimony was not admissible.

This time the jury convicted on all eight counts.

Following

trial,

judge, expressing

panel.

On inquiry, the

get out

of jury

review of that juror's

had affirmatively

jurors

contacted

the

concerns about another member

the verdict, the juror

to

two

district

of the jury

district judge discovered that after

in question had said that

service

because she

she wanted

was "mental."

questionnaire revealed that the juror

answered the question:

"Do you

have any

physical or mental disability that would interfere or prevent

you

from serving as

a juror?"

On the reverse

side of the

questionnaire, the juror had written the following:

have

an upsetting

emotional handicap

since my children have been with the DCYF

[a

Rhode Island

state agency],

and the

strain

is sometimes too great for me and

the walking to the bus stop especially in

inclement

weather would be

at this time.

kind of hard

I am presently looking for

housing for my family.

After

interview

an

investigation of

the

juror

and a

personal

by the district court, the court ruled that it was

"completely

satisfied

that

the

juror

was

competent

mentally capable at the time of the trial . . . ."

nevertheless sought a new

have

used his

known

about

the

Schneider

trial on the ground that

peremptory challenges

information

in the

district court denied the motion.

-6-6-

and

he would

differently if

questionnaire.

he had

The

In due course, Schneider

prison

(he had a

some years

about

refusal

prior conviction for

before), and was

$220,000.

was sentenced to 33

On

a "bust-out" offense

ordered to make

this appeal,

he

months in

restitution of

claims as

error the

to admit the medical testimony; and he argues that a

new trial should have been granted because he could have used

a peremptory challenge to

dismiss the juror if he

had known

of the information in the questionnaire.

We

begin with the harder of the two issues and ask

whether the district

medical evidence.

has been decided:

review

is

questions."

__ F.3d __,

court erred

in refusing

to admit

The standard of review depends

rulings of law are reviewed

typically

deferential

on

the

upon what

de novo while
_______

so-called

"mixed

Bergersen v. Commissioner of Internal Revenue,

_________
_________________________________

1997 WL 120530, at *5 (1st

Cir. Mar. 21, 1997).

Here, a legal issue--the meaning of a federal statute--stands

at the threshold.

In

Act,

98

1984, Congress

Stat. 2057,

affirmative

defense to

enacted the Insanity

redefining insanity

be

proved by

Defense Reform

and making

clear and

it an

convincing

evidence.

"Mental

defense."

that

See
___

18 U.S.C.

disease or

Id.
___

defect does

17(a).

defense

or

The statute

also states:

not otherwise

constitute a

Elsewhere, the government has argued

this quoted language is

condition

17.

meant to rule

testimony

-7-7-

that does

out any mental-

not

reach

the

heights

of

properly

pleaded insanity

defense.

E.g.,
____

Pohlot, 827 F.2d at 890.

______

In

this

case,

Schneider

did not

offer

an

insanity

defense, but he argues that his medical evidence is pertinent

in helping a jury

decide whether he had the

of

mind necessary for the offense

in

turn,

says

psychological

First

Circuit

that

evidence

has

number

to negate

suggested

Circuit's view is consistent

statute just quoted; and

to resolve the issue

requisite state

charged.

of

The government,

courts

specific

otherwise;1

have

admitted

intent

but the

that

the

with the final sentence

First

of the

that it is nevertheless unnecessary

in this case because the

evidence here

was not relevant in any event.

Aside

from

the final

principle there should be

sentence

of

section 17(a),

no bar to medical evidence

in

that a

defendant, although not insane, lacked the requisite state of

mind.

As LaFave and Scott say:

The

reception

abnormal
defense

of

evidence

the

mental condition, totally

of

insanity,

is

whenever that evidence is

whether

of

he

had

the

defendant's

apart from the

certainly

appropriate

relevant to the issue of

mental

state

which

is

necessary element of the crime charged.

____________________

1Compare United States v. Cameron, 907 F.2d 1051, 1065_______ _____________

_______
66 (11th Cir. 1990), and United States v. Twine, 853 F.2d
___ _____________
_____
676, 678-79 (9th Cir. 1988), with United States v. White, 766
____ _____________
_____
F.2d 22, 24-25 (1st Cir. 1985), and United States v. Kepreos,
___ _____________
_______

759 F.2d 961, 964 n.4 (1st Cir.), cert. denied, 474 U.S. 901
____________
(1985).

-8-8-

1 LaFave &

The

Scott, Substantive Criminal Law

_________________________

circuits that

this view.

have considered

the question

See United States v. Marenghi, 893

___ _____________
________

89 (D. Me. 1995) (collecting cases).

4.7, at

530.

have taken

F. Supp. 85,

After all, if

state of

mind is

a potential

criminal

cases--why

issue--as it

should

is in

expert

most

medical

but not

all

evidence

be

excluded out of hand?

We

intended

doubt that the

to

insanity.

history

exclude

Pohlot
______

mental-condition

canvassed

at length, and

not preclude a

final sentence of

section 17(a) was

evidence

the arguments

concluded (1) that

short

of

and legislative

the statute does

defendant from offering evidence

to negate a

requisite state of mind, 827 F.2d at 903, but (2) that--apart

from

such a

negation--it does

different defense of

mitigate the

offense.

preclude any

other new

diminished responsibility to excuse

Id. at
___

905-06.2

seems to us persuasive on both issues.

Pohlot's
______

and

or

analysis

Similarly, our

not

intended

to

own decisions in White

_____

establish

condition evidence is always

general

and Kepreos were

_______

rule

that

mental-

inadmissible except in relation

____________________

2Although phrases like "diminished responsibility" are

sometimes used to refer to evidence that negates intent, see
___
generally 1 LaFave & Scott, supra,
_________
_____

4.7, a different but

similarly named concept was developing in a few courts--prior

to the new federal statute--to excuse or lessen
responsibility, even where the impairment would not make out
an insanity defense or negate required intent.
People v. Wolff, 394 P.2d 959, 976 (Cal. 1964).
______
_____

-9-9-

See, e.g.,
___ ____

to

insanity.

In Kepreos,
_______

the court held

that the specific

psychiatric testimony involved was misleading and of doubtful

utility, 759 F.2d at 964; in White, where no coercion defense

_____

was offered,

defendant

the court rejected psychiatric

evidence that a

engaged in a drug crime because "she was unable to

resist her mother's request for assistance . . . ."

at

24.

These cases

largely

Marenghi, 893 F. Supp. at 88-91.

turn upon

766 F.2d

their facts.

See
___

________

Once past the threshold

becomes

more

medical

evidence

of section 17(a), the situation

difficult for

the

offered may

requisite intent, White,

_____

defendant.

still

be

766 F.2d at 24,

The

specific
________

irrelevant to

or probative value

may be substantially outweighed by confusion or delay.

R. Evid.

403; Kepreos,
_______

evidence

is

requisites

jury.

expert

759 F.2d

testimony,

at 964.

it must

of scientific reliability

Fed.

R.

Evid.

702;

the

Finally,

meet

the

Fed.

if the

further

and helpfulness to the

Daubert
_______

v.

Merrell Dow
____________

Pharmaceuticals, Inc., 509 U.S. 579, 589-91 (1993).

_____________________

In

deciding

reliability,

such

issues--relevance,

helpfulness--the

district

court

confusion,

has

comparative

typically

advantage over

involve

unique

an

appeals panel.

fact

patterns and

degree, and the district judge is closer to the

The

issues

judgments

case.

of

Thus,

so long as there is no misstatement of the legal standard and

the result reached is

not clearly unreasonable, the district

-10-10-

judge's ruling is usually respected.

United States v. Shay,

_____________
____

57 F.3d 126, 132 (1st Cir. 1995).

Against this

this

case.

background, we return to

Dr.

approximately an

Wartenberg

hour and

had

a half

the testimony in

examined

Schneider

and reviewed

for

his medical

records, including medicines prescribed for him over a three-

or four-year period.

In his offer of proof, the doctor

that the prescriptions were medically

the

in

drugs as prescribed

a variety

of

highs and lows,

inappropriate and that

"would impair intellectual function

ways," produce

blackouts, roller

coaster

and permit misperception and delusion.

Wartenberg summarized his view as follows:

My

said

opinion is

that

to

a degree

of

Dr.

reasonable

medical

Schneider's

certainty

that

intellectual

cognitive

function,

Mr.

capacity,

ability

to

make

executive

judgments and

decisions would

have been

impaired by that level of drug

prescribing.

On

cross-examination,

admission that

government

counsel

Schneider during this period

planned to

carry out a

properly, neither

side asked

Dr. Wartenberg

whether Schneider

ultimate

questions

mental state in a

which is a

had

to experts

intended

now

being

purpose."

Quite

the "ultimate"

to defraud,

such

forbidden as

criminal case under Fed. R.

companion amendment

an

could engage in

"activity that is

question

secured

to section 17.

to

Evid. 704(b),

See
___

States v. Meader, 914 F. Supp. 656, 658 (D. Me. 1996).

______
______

United
______

-11-11-

The

expert

psychiatrist,

Dr.

Roth,

also

offered

testimony after interviewing Schneider and examining records.

He said that Schneider

suffered from chemical dependency and

"major depression with

probable mania."

He said also

these conditions "impair[ed] . . . judgment."

that

He declined to

express

a view

on

Schneider's ability

to form

a purpose,

saying that he (Dr. Roth) was not there at the time, and that

terms like "purposeful" posed a metaphysical question.

As we

read the district

medical testimony

both irrelevant

view is that the evidence may

a limited degree, and

mislead

the

judge's ruling, he

jury.

and misleading.

that it had a substantial

And we

think

exclude the evidence

even

to view it

remand,

in

order

explicitly, is

to

that the

the

a waste of time.

capacity to

district court

under Fed. R.

as having

make

Our own

have been relevant but only to

clearly would

if told

deemed the

Evid. 403

limited relevance.

district

judge

say

To

this

Let us take these points in

turn.

Relevance,

the

ordinary

starting

point

for

admissibility,

Fed. R. Evid. 401,

the government

urged that

is a close

issue.

Schneider had ordered

Here,

the goods,

expecting never to pay for them but to resell them and pocket

the money

and thereby

"intended to deceive."3

Schneider's

____________________

3This, more precisely, is the "specific intent" element

that Schneider's evidence purported to negate.

The fraud

charge in this case has several different elements (e.g., use

____

-12-12-

answer was that he lacked this state of mind

evidence

helped

language of

him support

the rule), that

this

view,

and the medical

that

is (in

the medical testimony

the

made his

intent to defraud "less probable than it would be without the

evidence."

The

depressed,

Fed. R. Evid. 401.

sum of the doctors' evidence

that

he

had

impaired

depressed state and overmedication),

is that Schneider was

judgment

This might not

in

his

capacity

to

deceive,

Schneider's scheme

continued

over

several

explains the district court's

to

his

and that he was subject

to blackouts.

negating

(due

appear at first to go very far

especially

months.

as

This

view that the medical evidence

did not negate an intent to deceive but instead amounted to a

forbidden claim in mitigation.

Still,

evidence

may

be

"relevant" under

Rule

401's

definition, even if it fails to prove or disprove the fact at

issue--whether taken

helpful

alone or in combination

evidence on that issue.

with all other

In the latter instance, the

judge could direct a verdict if the issue were essential, but

not
___

against the defendant

in a criminal

case.

Schneider's

best argument is, therefore, that his medical evidence did go

some

distance

to

negate

intent

to

deceive

and

so

relevant.

____________________

of the mails) for which there may also be state of mind

was

requirements but they are not important here.

See generally
_____________

2 Sand et al., Modern Federal Jury Instructions 44-5 (1996).

______ ________________________________

-13-13-

Where evidence goes

far

enough,

relevant.

by ruling

it

may

"some distance" but manifestly

be tempting

to

say

that

it is

not

not

Frankly, Pohlot appears to us to take this course

______

that the psychological evidence

of impairment was

irrelevant

because

"by

his

own

"finalized an

agreement to have

`purpose'

hire someone

to

regardless of

whether he

to

admission,"

his wife murdered

kill

his

wife

`psychologically . .

the full consequences of this activity.'"

But we have

Rule

401's

helpful in

some doubt

that this

definition quoted

a case like

mens rea
_________

requirement

purposeful

activity,

origins."

827 F.2d

above.

is

904.

But

enough

. understood

do we

with

think it

Pohlot did, whether

______

Pohlot said that the

______

regardless

at

was

827 F.2d at 889.

Nor

satisfied

had

and this

usage comports

ours to ask, as

the conduct was "purposeful."

Pohlot
______

"by

of

it

any

its

ordinary

showing

of

psychological

is quite

possible

purposefully

to order goods on credit, and later not pay for

them, without having an intent to deceive.

Pohlot's other theme is the capacity of evidence of this

______

kind

to mislead.

defense

and barred

courts were

both

Congress raised the hurdle for an insanity

a new

diminished capacity

beginning to invent.

here and

temporarily out

section 17(a))

in Pohlot,
______

that

the evidence offered,

suggests that

of his mind

and

Yet

(even though

his crime

-14-14-

defense that

was

the defendant

not insane

mitigated

was

under

by

his

psychological condition.

Such evidence

tends to reintroduce

the very concepts that Congress wanted to exclude and thereby

to mislead the jury.

In weighing relevance against ruck under Rule 403.

government does not now

The

challenge the evidence as unreliable

under Daubert--only its pertinence

_______

to this case.

Nor

do we

propose to decide here the issue explicitly reserved in Shay,

____

namely,

whether and

when

the judge

may exclude

otherwise

relevant

expert evidence

on

"assist"

the jury.

Shay, 57
____

enough

See
___

the ground

that

F.3d at

it will

132-33.

not

It is

that exclusion of the evidence here under Rule 403 is

eminently justifiable.

The evidence, as we have said, is of limited

showing "impaired"

deceit

judgment might help

claim but falls well

relevance:

piece out a

short of sufficient

lack of

proof.

At

the same time, the expert testimony offered here could easily

mislead the jury into thinking that such

amounts to

The

score

temporary insanity

instructions

or

required here

would likely have gone

a medical condition

ameliorates the

to guard

very far to

the jury

offense.

on this

eliminate any use

the evidence might otherwise have to the defendant.

Thus, we conclude

that the district

court was free

to

exclude

this evidence

mislead

the

relevance.

jury

on the

ground that

substantially

its capacity

outweighed

Since exclusion was permitted

its

to

limited

but not required,

-15-15-

we

could

remand for

an

explicit finding

under

Rule 403.

Shay, 57 F.3d at 134.

____

view

of

district

the

But given the district court's evident

matter,

our

court's reasoning

limited

disagreement

would hardly alter

court's desire to exclude the evidence.

no purpose.

See
___

with

the

the district

A remand would serve

United States v. Dolloph, 75

______________
_______

F.3d 35, 38

(1st Cir.), cert. denied, 116 S. Ct. 1866 (1996).

____________

Although

considerable,

our

concerns

we shrink

from

about

such

any generic

evidence

rule that

are

would

forbid the district courts from resolving admissibility

by

case.

Offenses

differ

from

each

other; the

case

medical

evidence, taken alone and in combination with other evidence,

is

going to

vary

everyone is still

widely;

learning.

and this

is

an area

In the spirit

in

which

of Daubert,
_______

we

rely heavily on the wise superintendence of the

509 U.S. at 592-93.

trial court.

In this case we have no quarrel with how

it was exercised.

This

namely,

brings us

to Schneider's

second claim

of error,

that the district court erred in refusing to grant a

new trial.

The basis

pertinent

here)

disclosed,

have

pertaining to

of the new trial motion was (so far as

that

the

revealed

the juror

juror

mental

questionnaire

or

emotional

in question, perhaps

if

problems

prompting the

use of a peremptory challenge to remove the juror.

-16-16-

would,

Again, in

considering

the

district court's

action,

our

standard of

review depends upon what the district judge decided.

The district

objection

court ruled that Schneider

because he

failed to move

questionnaire answers prior

view in United States

_____________

1989), but stopped

had waived his

for disclosure

to empanelment.

We

v. Uribe, 890 F.2d 554, 561

_____

just short of

of the

took such a

(1st Cir.

a definitive finding

that

the Rhode Island federal

access to

juror selection plan permitted such

jury questionnaires.

relied heavily

had suffered

Id.
___

on the alternative ground

no prejudice

In affirming,

Uribe
_____

that the defendant

from the nondisclosure.

Id.
___

at

562.

On this

whether

appeal, the parties seek to

Schneider

did have

effective

litigate at length

access

questionnaires, which

the governing statute

differently than jury

lists.4

Rhode

Island

plan

questionnaires.

at 1515.

We

are

Neither

crystal

See 28 U.S.C.
___

clear

to the

jury

treats somewhat

the statute nor

about

access

the

to

1867(f); Davenport, 824 F.2d

_________

have previously interpreted the statute

not to

allow inspection of questionnaires "solely to aid in the voir

____________________

4See Jury Selection and Service Act of 1968, 28 U.S.C.

___
1861 et seq.
______

Compare Test v. United States, 420 U.S. 28, 30

_______ ____
_____________

(1975) (per curiam) (litigants have "unqualified" right of

access to jury lists under

1867) with United States v.

____ _____________

Davenport, 824 F.2d 1511, 1514-15 (7th Cir. 1987)

_________
(distinguishing juror lists from individual questionnaires
and holding that the latter were not available for
inspection).

-17-17-

dire process."

Jewell v. Arctic Enterprises, 801 F.2d 11, 13

______
__________________

(1st Cir. 1986).

Under these circumstances, we

decision

on waiver

or forfeiture.

are reluctant to rest our

Assuming

arguendo that
________

Schneider might have sought access to the questionnaire based

on a showing of need, before trial he had no basis for such a

motion.

defendant

This is not a case where, prior to empanelment,

knew or should

have known of

with a juror and failed to ask for

the

a potential problem

the questionnaire.

E.g.,
____

United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st Cir.),

_____________
_____________

cert. denied, 498 U.S. 990 (1990).

____________

On the other hand, Schneider has abandoned on appeal any

effort

to

show

characteristics of

actual
______

prejudice

the juror

(e.g.,
____

by

pointing

that would likely

to

have caused

her to take an adverse view of Schneider or to fall under the

sway of other

district

jurors).

court but were

Schneider's

position

Such contentions were

made in

rejected and

now pursued.

instead

is

are not

that

prejudice

is

the

not

required, and he relies on our own statement in United States

_____________

v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979):

______

[T]here

is

prosecution

little

doubt

deprives a

that if

the

defendant of his

court

or

right to

the effective exercise of peremptory challenges, it

would, without more, be grounds for a new trial.

In

number

of

cases

involving

interference

with

peremptory challenges, the reviewing

of prejudice as unnecessary.

court has treated proof

See United States v. Annigoni,

___ _____________
________

-18-18-

96

F.3d

1132, 1141

cases). But

(9th Cir.

1996) (en

such cases normally involve

or interference.

Without automatic

banc) (collecting

a deliberate denial

reversal, such

conduct

could

rarely

be

corrected;

by

definition,

lawyers

use

peremptories where a challenge for cause will not work.

By contrast, a failure of the district court's screening

apparatus

to

uncover

some

information in a raft of

mistake might

adequate voir

dire questions,

of prejudice.

3-5 (1st

Cir. 1988).

Practice & Procedure

____________________

We

potentially

a different kind.

resemble the

showing

of

jury questionnaires is, if

at all, a mistake of quite

piece

failure of

useful

"error"

At worst, such

the judge

where we have

to ask

insisted on

United States v. Anagnos, 853 F.2d 1,

_____________
_______

See also 9A Wright

_________

& Miller, Federal

_______

2482 at 115 & n.8 (2d ed. 1995).

need not try to draw a definitive line between cases

where a showing of

is not,

prejudice is required and cases

as this one so

the line.

clearly falls on the

where it

former side of

There was no direct interference with a peremptory

challenge, cf. United States v. Cambara, 902 F.2d 144, 147-48

___ _____________
_______

(1st Cir.

1990), and

no indication that

was deliberately withheld.

withheld information),

prejudice]

would be

useful information

Here, as in Vargas (where a juror

______
_____

"[a] new trial [without

a windfall

much countervailing benefit.

for the

defendant" without

606 F.2d at 346.

Affirmed.
________

-19-19-

a showing of