United States Court of Appeals

For the First Circuit

No. 99-1678

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM SMITH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Torruella, Lynch, and Lipez, Circuit Judges.

Jane Elizabeth Lee, was on brief for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellee.

June 11, 2002
1 Section 922(g) states in relevant part: 

It shall be unlawful for any person . . . (1) who has

been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to ship

or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce.

18 U.S.C. § 922(g).

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LIPEZ, Circuit Judge. William Smith appeals from his

conviction for possession of a firearm and various rounds of

ammunition. He challenges the district court's admission of

evidence of his drug dealing under Fed. R. Evid. 404(b).

Relatedly, he seeks a new trial because he claims a missing portion

of a hearing transcript has impaired his ability to perfect his

appeal on that evidentiary issue. In addition, he claims that the

government's failure to timely disclose medical treatment records

of a key government witness hampered his ability to defend the

case. We reject these claims and affirm.

I.

We describe briefly the background of this case at this

juncture and add more detail as it becomes relevant to the legal

analysis. On January 29, 1997, a federal grand jury returned a

one-count indictment charging Smith with being a felon in

possession of a firearm and various rounds of .38 and .357 caliber

ammunition, on or about November 5, 1996, in violation of 18 U.S.C.

§ 922(g)(1).1 His trial began on June 10, 1997. In support of its

case at trial, the government introduced evidence that in August of
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1995, Smith had invited an acquaintance, Richard Bovill, over to

his apartment at 5 Otisfield Street (Otisfield Street apartment) in

Roxbury, Massachusetts, to watch a boxing match. Bovill was a

security guard and owned several handguns, including a Taurus .38

caliber revolver, the firearm referenced in the indictment. Bovill

brought with him a duffel bag which contained, inter alia, the

loaded Taurus revolver, a holster for the Taurus, and a

Massachusetts firearms permit. At some point that evening, Bovill

took the gun out of the bag, unloaded it, and handed it to Smith,

who examined it and remarked that he liked it. A few weeks later,

Bovill realized that he could not find his gun, holster, or permit.

When he returned to the Otisfield Street apartment in search of

them, he found the residence abandoned and boarded up.

At some point prior to the summer of 1996, Smith moved to

33 Wales Street, Apartment No. 104 (Wales Street apartment) in

Dorchester, Massachusetts. The lease to the apartment was under

the name of a "Joseph Turner." Smith began selling cocaine powder

and crack cocaine from that apartment. A number of individuals

assisted Smith in his drug operation, including a woman named Erica

Moore.

In late October of 1996, Erica Moore agreed to assist law

enforcement officials investigating the involvement of Smith and

Debra Anderson, a Boston police officer, for drug-related

activities. Smith was romantically involved with both Moore and

Anderson.
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Between October 22 and November 5, 1996, Moore made four

controlled purchases of cocaine from Smith at the Wales Street

apartment. Notwithstanding her role, Moore also continued to

purchase cocaine from Smith for her own use. On November 3, 1996,

shortly before the last controlled buy, Moore went to Smith's

apartment to buy cocaine for herself and saw a gun next to Smith on

the couch in the living room of the apartment. Moore reported her

observations to the police the next day, describing the gun as

having a silver barrel and a brown wooden handle.

On November 5, 1996, after Moore made the final

controlled purchase, the police executed a no-knock warrant to

search the Wales Street apartment for evidence of drug-related

activities. Upon entry, the police found Smith and another

individual, Duane Sawyer, inside the apartment. During the ensuing

search of the apartment, officers found, inter alia, a blue bag on

the floor of the living room with the wooden handle of a stainless

steel revolver protruding from one of the unzipped compartments of

the bag. At trial, Moore identified the revolver as the firearm

she had seen beside Smith in his living room on November 3, and

Bovill testified that it was the same gun he could not find after

showing it to Smith at the Otisfield Street apartment in August

1995. The gun was loaded with six rounds of ammunition. In

addition, officers found in the bag six rounds of .38 caliber

ammunition in a "speed loader," seven rounds of .357 caliber

ammunition in a plastic box, a holster that Bovill identified as

the one he had brought with his gun to Smith's Otisfield Street
2 As to the other § 922(g)(1) elements, Smith stipulated (1)

that he had previously been convicted of a felony; (2) that the

firearm and ammunition found in the Wales Street apartment

constituted firearm and ammunition within the meaning of federal

law; and (3) that the firearm and ammunition had traveled in

interstate commerce.

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apartment, a case for the speed loader, papers used for packaging

cocaine, a black knife that Moore recognized as belonging to Smith,

utility bills, and checkbooks with Smith's name on them. Elsewhere

in the apartment, police found a wallet containing two of Smith's

IDs and Bovill's firearms license. In the rear bedroom, police

found two file folders containing documents in Smith's name and

Anderson's name. On Smith's person there was another wallet

containing more of his IDs and $1,271 in cash, as well as a welfare

card for Moore.

Although Smith did not testify at trial, he based his

defense on the sole contention that he neither owned nor possessed

the gun.2 To support this defense, Smith put on the stand Sawyer,

who testified that the Wales Street apartment where the gun was

found was leased in the name of an individual named "Joe." Sawyer

claimed ownership over the gun and testified that Smith had never

seen or handled it. Smith also challenged the credibility of the

informant Moore, who testified in the government's case. In

closing argument, Smith disavowed any control over the Wales Street

apartment where the gun was found.

On June 16, 1997, the jury found Smith guilty as charged.

The district court subsequently found that Smith was an armed

career criminal under the Armed Career Criminal Act, 18 U.S.C.
3 Rule 404(b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a

person in order to show action in conformity

therewith. It may, however, be admissible for

other purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or

accident. . . .

Fed. R. Evid. 404(b)

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§ 924(e), and accordingly sentenced him to 262 months in prison to

be followed by three years of supervised release. This appeal

ensued.

II.

Smith seeks a new trial on grounds that the district

court abused its discretion in admitting evidence of his drug

dealing under Fed. R. Evid. 404(b)3 in a gun possession case and

that the missing hearing transcript has prejudiced his ability to

bring this evidentiary challenge. For the reasons set forth below,

we reject these claims.

A. Procedural History

On June 4, 1997, the government filed a motion in limine

to admit, inter alia, evidence of Smith's drug dealing under Rule

404(b). In that motion, the government disclosed its intention to

present testimony from confidential informant Erica Moore about her

longstanding involvement with Smith in dealing drugs, and

specifically that she

assisted the defendant in selling cocaine at [the Wales

Street apartment] over a period of many weeks preceding

November 5; that she and others frequently smoked crack
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at that location, made with cocaine supplied by the

defendant; that she and others frequently delivered drugs

at the defendant's direction using a car owned by a

Boston Police Officer; that the defendant gave her

instructions regarding various aspects of the business,

including an explicit direction to keep the sink area of

the kitchen clean so that there would be ready access to

the garbage disposal in the event of a police raid; and

that she made a number of controlled purchases of cocaine

from the defendant, under the direction of the Boston

police.

The government also notified the court of its intention to present

at least one other witness who purchased drugs from the defendant

at the Wales Street apartment as far back as ten months before the

gun was found.

The district court held a hearing on the government's

Rule 404(b) motion on June 9, 1997. At that hearing, the court

expressed concerns about the relevance of a significant portion of

the proffered evidence to the gun possession charge and the

potential for unfair prejudice. For instance, the court indicated

that it was wary about allowing evidence of any instructions by

Smith that Moore keep the sink area clean to enable ready access to

the drain in case of a police raid:

What I am trying to walk a tight line on is, if he is not

charged with a drug offense, it is either prejudicial or

404(b) material, unless it is relevant, the observation

of the gun. So, why would it be relevant that the drugs

were flushed down the drain? Let's assume it is true?

 

The court also excluded, on the basis of undue prejudice, evidence

of Smith's drug dealing from the Wales Street apartment going back

more than ten (10) days before Moore spotted the firearm in the

apartment:
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No need to go back to January or May of 1996. [The

government] really can do it, without getting too

prejudicial, just within the span of that week.

Defense counsel proceeded to engage the court in a

dialogue as to the prejudicial nature of evidence that, days before

the gun was found, three armed individuals entered into the Wales

Street apartment, held Smith and others at gunpoint, and robbed

them of drugs and money: 

MR. RICHEY: [defense counsel]: Basically, what you have

is evidence that is coming before the jury, which I think

is incredibly prejudicial . . . you have testimony three

armed men came and tied the defendant, as well as several

other people, with ropes, and brandished guns, and took

drugs and money. I think that is an incredibly

prejudicial set of facts to put before a jury.

COURT: Why? Why? In a way [the robbery] makes them more

sympathetic. I mean, if it happened. He is saying it

didn't happen. Why is it so prejudicial?

MR. RICHEY: Well, it just paints this whole scene exactly

the way the prosecution wants to do, as a drug den, as a

tinder box where anything could ignite.

THE COURT: I see.

MR. RICHEY: And, in and of itself, it is prejudicial.

And the point I wanted to make is that often the case

before the court is a drug case, and a gun will come in.

Guns are tools of the trade. And it is allowed in. And

a point that I would like to make is drug dealing per se,

to a degree, is per se abhorrent. So the matter in issue

is something that is already prejudicial.

Although a court reporter was present to record the

hearing, she lost a portion of her notes. As a result, the final

portion of the hearing transcript is missing from the record. The

transcript thus ends shortly after the above colloquy, leaving the

parties without a verbatim account of the remainder of the
4 The hearing transcript was deemed missing in the spring of

2000, when counsel ordered the transcript of the proceedings for

purposes of preparing for the appeal. At that point, based upon

their respective recollections, separate statements were submitted

by Smith, his trial counsel and the government as to what

transpired during the portion of the hearing for which the

transcript was missing, in accordance with Fed. R. App. P. 10(c).

The district court, however, did not settle or approve a statement

of proceedings because it had "no independent recollection" of the

substantive discussions at the hearing.

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hearing.4 The clerk's hearing notes, however, do provide a summary

record of the court's Rule 404(b) ruling:

[The court's] Order: Cut off gov't use of drug dealing

evidence to 22nd (week or so before the arrest). As to

motive and control and nature of relationship with CI

[Moore]. Won't let in "flush" drugs preparations.

Defendant will prepare jury instructions to limit drug

dealing evidence as going only to issue of motive and

control.

At trial, Moore testified that she had known Smith for

approximately a year. She testified that Smith lived at the Wales

Street apartment when she knew him and that she frequently stayed

overnight with him at that apartment. Moore testified that Smith

paid the rent on that apartment, slept in the bedroom, had control

over the apartment key and mailbox key, and kept his clothes in the

apartment's closets.

When the government began to question Moore about the

nature of her relationship with Smith, defense counsel objected on

Rule 404(b) grounds, anticipating her testimony about her

involvement with Smith's drug dealing. In response, the district

court invited defense counsel to submit the limiting instruction

pertinent to this evidence that he was asked at the June 9 hearing

to prepare. Defense counsel was not prepared to do so, at which
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point the district court gave the jury its own limiting

instruction:

And you're about to hear some evidence that will come in

for a limited purpose. You may remember the charge here

- and the government has to prove it beyond a reasonable

doubt - is that Mr. Smith was illegally possessing a

firearm and ammunition. You're going to hear about some

activities now which are not charged against Mr. Smith

and the only reason this is being allowed in is so that

you can understand the nature of the relationship between

Ms. Moore and Mr. Smith and also that you can evaluate

whether or not Mr. Smith had control over the apartment.

It's up to you to find those issues, but that's the only

purpose for which you can consider this. You cannot

consider this information as anything being charged

against Mr. Smith, because it's not.

Moore then testified that she helped Smith distribute

cocaine. She explained how she packaged cocaine for Smith by

wrapping it in foil and how others working for Smith wrapped

cocaine in white paper similar to that found in the blue bag with

the gun. Moore identified individuals that came to the apartment

to buy cocaine, to cook cocaine into crack, and to smoke the crack

cocaine. She indicated that Debra Anderson, the Boston police

officer, smoked crack in the apartment and that Smith used

Anderson's car to deliver drugs. She testified in detail as to

each of the four controlled buys at the Wales Street apartment.

She explained that when she went to the Wales Street apartment on

her own to buy cocaine two days before the apartment was searched,

Smith was sitting on the couch with a gun beside him, which she

identified as the .38 Taurus revolver produced at trial. She

stated that Smith did not say anything about the gun; instead, he

repeatedly looked from the gun to Moore and back to the gun. She
5 The Court Reporter Act, 28 U.S.C. § 753(b), states in

pertinent part: 

Each session of the court and every other proceeding

designated by rule or order of the court or by one of the

judges shall be recorded verbatim by shorthand,

mechanical means, electronic sound recording, or any

other method, subject to regulations promulgated by the

Judicial Conference and subject to the discretion and

approval of the judge. . . . Proceedings to be recorded

under this section include (1) all proceedings in

criminal cases had in open court . . . . 

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testified that Smith told her that he had the gun because he had

been robbed at the apartment that weekend.

At the close of the evidence, the district court included

in its jury charge an instruction similar to that given earlier

during Moore's testimony about the limited purpose for which the

evidence of Smith's drug dealing was admitted. Smith did not

object to this instruction.

B. Missing Portion of the Hearing Transcript

Smith argues that the missing transcript has prejudiced

his ability to perfect his appeal, thus warranting reversal of his

conviction and a new trial. The Court Reporter Act, 28 U.S.C.

§ 753(b), provides that all open court proceedings in criminal

cases "shall be recorded verbatim."5 Although § 753(b) is

mandatory, United States v. Andiarena, 823 F.2d 673, 676 (1st Cir.

1987), "nothing prescribes automatic reversal of a defendant's

convictions for non-compliance" with that statutory provision.

United States v. Brand, 80 F.3d 560, 563 (1st Cir. 1996); see

United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985) ("A

violation of the recording mandate, however, is not per se error,
6 Similarly, due process does not require a full verbatim

trial transcript, but only requires that a "criminal appellant be

provided with a record of sufficient completeness to permit proper

consideration of his claims." Bundy v. Wilson, 815 F.2d 125, 135

(1st Cir. 1987)(internal quotation marks omitted).

7 Accord United States v. Malady, 960 F.2d 57, 58-59 (8th

Cir. 1992) ("To obtain reversal, a defendant must show the missing

part of the transcript specifically prejudices the appeal.");

Gallo, 763 F.2d at 1530-31; United States v. Sierra, 981 F.2d 123,

125 (3rd Cir. 1992) ("[F]ailure to comply with the Court Reporter

Act does not warrant reversal without a specific showing of

prejudice."). See generally Sheldon R. Shapiro, Annotation,

Prejudicial Effect of Federal District Court Reporter's Omissions

in Recording Judicial Proceedings, Where Such Omissions Constitute

Failure to Comply With Court Reporter Act, 28 U.S.C.A. § 753(b), 12

A.L.R.Fed. 584 (1972 & Supp. 2000) (collecting cases). But see

United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977)

("When . . . a criminal defendant is represented on appeal by

counsel other than the attorney at trial, the absence of a

substantial and significant portion of the record, even absent any

showing of specific prejudice or error, is sufficient to mandate

reversal." (footnote omitted)).

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and thus without more does not require reversal."). Rather, to

obtain reversal and a new trial, the defendant must demonstrate

"specific prejudice to his ability to perfect an appeal, beyond

mere non-compliance with the [Court Reporter Act]."6 Brand, 80

F.3d at 563 (citing extra-circuit precedent).7

 According to Smith, the missing portion of the

transcript contained both defense counsel's argument to exclude the

contested evidence and the basis for the court's ruling on its

admissibility. Thus, he contends that the missing transcript

hampers his ability to argue that the district court failed to

perform the requisite second step of the Rule 404(b) analysis,

namely, balancing the probative value of the drug dealing evidence

against its potential prejudicial effect pursuant to Fed. R. Evid.
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403, see United States v. Van Horn, 277 F.3d 48, 57 (1st Cir.

2002), and that we cannot meaningfully review the district court's

decision to admit some of the drug dealing evidence under Rule

404(b). We disagree.

We know from the record that the district court did

consider the prejudicial effect of the drug dealing evidence on a

jury in a gun possession case and excluded certain evidence on that

basis. For instance, the court specifically excluded evidence of

Smith's drug dealing from the Wales Street apartment going back

more than ten days before the gun was found on grounds that it was

"too prejudicial." Moreover, the district court invited Smith to

submit a limiting instruction on the Rule 404(b) evidence. The

invitation to a defendant to submit or request a limiting

instruction "suggests that [the district court] had come to the

conclusion that the danger of unfair prejudice did not outweigh the

probative value of the evidence." United States v. Rosa, 705 F.2d

1375, 1378 (1st Cir. 1983)(per curiam). Although defense counsel

failed to do so, the court gave its own such instruction twice --

once in the midst of trial and again as part of the jury charge.

Furthermore, there is no necessary relationship between

the absence from the record of an explanation for a Rule 403

balancing ruling and our ability to conduct a meaningful appellate

review of such a ruling. See United States v. Santagata, 924 F.2d

391, 394 (1st Cir. 1991) (noting that "on-the-record findings as to

the probative value/prejudicial effect balance . . . are not always

necessary"). As Smith concedes, where the record is silent, we
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have on prior occasions assumed that the district court tacitly

performed Rule 403 balancing, or we have independently engaged in

that analysis without resort to the district court's decision.

See, e.g., United States v. De La Cruz, 902 F.2d 121, 123 n.1 (1st

Cir. 1990) ("Despite the lack of express findings, we believe that

the record reflects the district court's awareness of its

responsibility to weigh the relevant factors and perform a

balancing test prior to allowing the government to use the disputed

evidence."); United States v. Foley, 871 F.2d 235, 238 (1st Cir.

1989)(no abuse of discretion found in exclusion of evidence despite

absence of express findings); United States v. Flores Perez, 849

F.2d 1, 4 n.2 (1st Cir. 1988); United States v. Currier, 821 F.2d

52, 54 n.3 (1st Cir. 1987) (noting that trial court's "failure to

elaborate on the reason for deciding to admit the

evidence . . . did not in these circumstances imply that it was

ignoring the proper factors under Rule 403" (internal quotation

marks omitted)).

Finally, we recognize that an adequate record is of

particular importance when new counsel is retained on appeal.

However, the mere fact that Smith has retained new counsel for his

appeal does not by itself warrant reversal nor in any way relieve

Smith of his burden to demonstrate "specific prejudice." See

Brand, 80 F.3d at 563 (requiring same showing of specific

prejudice, "whether or not there is new appellate counsel"). To

hold otherwise would "create[] the perverse incentive of

encouraging defendants to dismiss trial counsel and seek new
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appellate counsel whenever questions arise over the sufficiency of

a trial transcript." United States v. Huggins, 191 F.3d 532, 537

(4th Cir. 1999). Accord Sierra, 981 F.2d at 126. There has been

no showing that the missing portion of the hearing transcript

prejudices Smith's ability to challenge the admission of the drug

dealing evidence under Rule 404(b). We turn, therefore, to the

merits of that Rule 404(b) challenge.

C. Admissibility of Drug Dealing Evidence Under Rule 404(b)

Smith contends that, under Rule 404(b), the district

court improperly admitted at his trial on the firearms possession

charge evidence of his involvement in drug-related activities.

Reviewing the district court's Rule 404(b) evidentiary ruling for

abuse of discretion, see Van Horn, 277 F.3d at 56, we find no such

abuse here.

Rule 404(b) allows "[e]vidence of other crimes, wrongs or

acts" to be introduced for certain permitted purposes, such as

"proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." We engage

in a two-step analysis to determine admissibility of other-acts

evidence under Rule 404(b). See United States v. Sebaggala, 256

F.3d 59, 67 (1st Cir. 2001). First, we must assess whether the

evidence is "specially probative of an issue in the case" and is

not merely offered to show the defendant's bad character or

propensity for crime. United States v. Frankhauser, 80 F.3d 641,

648 (1st Cir. 1996).
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Even if the evidence demonstrates such special relevance,

"it must run a second gauntlet; Rule 404(b) incorporates sub

silentio the prophylaxis of Federal Rule of Evidence 403."

Sebaggala, 256 F.3d at 67. Under Rule 403, the evidence shall be

excluded if "its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence." Fed. R. Evid. 403.

As Rule 403 makes explicit, the law shields a defendant "against

unfair prejudice, not against all prejudice." United States v.

Candelaria-Silva, 162 F.3d 698, 705 (1st Cir. 1998) (internal

quotation marks omitted). United States v. Rodriguez-Estrada, 877

F.2d 153, 156 (1st Cir. 1989) ("[A]ll evidence is meant to be

prejudicial; it is only unfair prejudice which must be avoided.").

We usually defer to the district court's balancing under Rule 403

of probative value against unfair prejudice. See United States v.

Currier, 836 F.2d 11, 18 (1st Cir. 1987). "Only rarely -- and in

extraordinarily compelling circumstances -- will we, from the vista

of a cold appellate record, reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect." Freeman v. Package Mach. Co., 865 F.2d 1331, 1340

(1st Cir. 1988).

1. Special Relevance

The disputed evidence easily clears the relevancy hurdle.

Section 922(g)(1) requires the government to prove, inter alia,

that the defendant possessed a firearm and did so knowingly.
8 The facts in Thomas bear close resemblance to those here. In

that case, police executed a search warrant at Thomas's residence

after a few drug transactions occurred at or near there. See 242

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United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998). To

establish knowing possession under § 922(g)(1), the government must

demonstrate actual or constructive possession of the firearm. See

United States v. Wight, 968 F.2d 1393, 1397-98 (1st Cir. 1992).

"'Constructive' possession is commonly defined as the power and

intention to exercise control, or dominion and control, over an

object not in one's 'actual' possession." United States v. Zavala

Maldonado, 23 F.3d 4, 7 (1st Cir. 1994). 

In his defense, Smith disavowed any control over the

revolver or the Wales Street apartment where that gun was found,

submitting testimony from Sawyer to that effect. In light of this

defense, evidence of Smith's drug dealing at the apartment was

highly relevant to the issues disputed at trial because that

evidence demonstrates Smith's control over the Wales Street

apartment where the gun was found, and the joint drug dealing

efforts of Smith and Moore help explain why Moore was in a position

to see the gun. Furthermore, Smith's drug dealing provides a

compelling motive for possessing the gun, namely, to protect his

drugs and drug money. Several of our sister circuits have approved

the admission of evidence of a defendant's drug activities in a

firearms possession case to show a motive or knowing possession of

the firearm. See, e.g., United States v. Thomas, 242 F.3d 1028,

1031-33 (11th Cir. 2001) (holding that evidence of defendant's drug

dealing was admissible to prove knowing possession of firearms);8
F.3d at 1030. While the search did not produce any drugs, the

police did find two firearms -- one in the closet and another in a

pick-up truck parked in the driveway -- along with $1,200 in cash

on a dresser in the living room, and $110 cash in defendant's

wallet. See id. The Eleventh Circuit upheld the district court's

admission of evidence of defendant's drug dealing on the basis that

"evidence of his drug trafficking was in sufficiently close

proximity, temporally and physically, to be relevant to proving

that he knowingly possessed" the firearms. Id. at 1032.

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United States v. Butcher, 926 F.2d 811, 816 (9th Cir. 1991)

("[E]vidence of narcotics trafficking may be properly admitted to

show knowing possession of a weapon."); United States v. Fuller,

887 F.2d 144, 147 (8th Cir. 1989) (holding that, "given the close

and well-known connection between firearms and drugs," drug-related

evidence was admissible to show motive to possess firearm); United

States v. Simon, 767 F.2d 524, 527 (8th Cir. 1985) (finding that

evidence that defendant engaged in "drug packaging" at apartment

where gun was found was probative of his possession of that gun,

because of "known correlation between drug dealing and weapons").

Smith argues that our decision in United States v.

Currier, 821 F.2d 52 (1st Cir. 1987), demonstrates our

unwillingness to admit evidence of narcotics to prove gun

possession. That is not so. In Currier, the defendant did not

argue that the gun he was charged with possessing belonged to

someone else in the apartment. See id. at 56 n.6. Thus, the

narcotics evidence was only "marginally relevant on the issue of

[gun] possession." Id. Here, on the other hand, Smith argued that

the gun did not belong to him; he put on evidence that Sawyer owned

the gun. As such, evidence of drug dealing, for reasons discussed

supra, was relevant to the contested issue of knowing possession.
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2. Risk of Unfair Prejudice

We recognize that illicit drug dealing is an "emotionally

charged public issue." 2 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence § 403.04[2], at 403-46 (2d ed. 2002).

Thus, the trial courts must exercise care in deciding to what

extent, if at all, evidence of drug-related activities should be

admitted in a firearms possession case. Here, the district court

exercised appropriate care in monitoring the introduction of such

evidence.

The district court carefully parsed the evidence at the

pre-trial hearing and circumscribed the scope of the evidence the

government could offer at trial. Although the government sought to

admit evidence of Smith's drug dealing stretching back over a tenmonth period, the court excluded evidence of Smith's drug dealing

going back more than ten days before Moore saw the firearm in the

Wales Street apartment. The court also barred Moore from

testifying as to instructions by Smith to keep the sink area clean

to enable ready access to the drain to flush down drugs in case of

a police raid.

Smith argues, however, that this evidence of drug dealing

was not necessary to show Smith's control over the apartment

because it was duplicative of other uncontested evidence in the

record, such as testimony that Smith had the keys to the apartment

and mailbox, slept in the only bedroom where he kept his

prescription medication, and paid the utility bills. We disagree.

While this other evidence may have been probative on the issue of
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control over the apartment, it had no bearing on motive to possess

the gun. The strongest evidence of motive (and therefore knowing

possession) -- matters which Smith himself put into issue -- was

the drug dealing from that apartment around the time the gun was

discovered.

Finally, we note the careful limiting instruction given

by the trial court -- first when the challenged testimony was

admitted and again in the jury charge -- as to the limited purposes

for which Moore's testimony about Smith's drug-related activities

was to be considered. We have noted on many occasions the salutary

effect of such instructions. See, e.g., United States v. MorlaTrinidad, 100 F.3d 1, 6 (1st Cir. 1996) (taking note of limiting

instruction in assessing extent of unfair prejudice); Devin, 918

F.2d at 288 (noting "clarity of the court's charge" limiting jury's

use of Rule 404(b) evidence in finding no abuse in trial court's

Rule 403 balancing); United States v. Currier, 836 F.2d 11, 18-19

(1st Cir. 1987) (finding no abuse in court's Rule 403 calculus

where district court alleviated impact of unfair prejudice by means

of cogent limiting instructions). We conclude that the district

court did not abuse its discretion in admitting the drug-related

evidence at Smith's trial on the firearm possession charge.

III.

In addition, Smith seeks reversal of his conviction on

grounds that the government failed to timely disclose Moore's

medical treatment records, in violation of Brady v. Maryland, 373

U.S. 83 (1963), thus impairing his ability to defend the case. The
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Supreme Court held in Brady that "suppression by the prosecution of

evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."

Id. at 87. Smith's claim rests on the well-established corollary

of that rule prohibiting unwarranted delays in the disclosure of

material evidence. See, e.g., United States v. Ingraldi, 793 F.2d

408, 411-412 (1st Cir. 1986) (recognizing that delayed disclosure

requires reversal where delay caused prejudice to defendant's

case).

A. Procedural History

On February 18, 1997, Smith filed a discovery motion

seeking, inter alia, exculpatory material under Brady and Giglio v.

United States, 405 U.S. 150 (1972). His motion included a request

for "any information adverse to the credibility of any witness,

including but not limited to . . . physical, mental, visual, or

psychiatric treatments and/or impairments (including legal or

illegal use of drugs and excessive use of alcohol), which could

affect witness' [sic] accuracy and full details of the same."

Smith also requested disclosure of any rewards, promises, or

inducements -- monetary or otherwise -- made by the government to

any prospective witness in exchange for information or other

assistance. On February 26, 1997, the government responded that 1)

it was not aware of any evidence which could be deemed exculpatory

under Brady and its progeny, and 2) no promises, rewards or

inducements had been given to any witnesses. 
9 The Rule 404(b) motion in limine was filed on June 4, 1997.

The government claims that it was not until this time that it

became aware that Moore would be available to testify at trial.

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On June 5, 1997, less than a week before trial, the

government notified Smith that it intended to call Erica Moore as

a witness.9 On June 9, the government provided Smith with a copy

of Moore's criminal record and informed him that Moore was manicdepressive and addicted to crack. Smith did not move for a

continuance at this time. 

On June 10, the first day of trial, the government

informed Smith that the Boston Police Department had paid Moore for

her services and promised her drug treatment. At a June 11 hearing

prior to opening arguments, Smith objected to this late disclosure

of financial rewards and incentives to Moore and requested that the

cross-examination of Moore be continued until the next day "at a

minimum." The court granted Smith a one-day continuance.

On the following morning of June 12, Smith moved for a

mistrial, claiming that he did not have enough time to prepare for

Moore's cross-examination because certain medical records relating

to Moore were yet to be disclosed to him. The district court

denied Smith's motion for a mistrial without prejudice but

continued Moore's cross-examination for another day. Smith then

moved for a continuance until June 16. The court denied that

request without prejudice to renewal upon disclosure of the

anticipated documents.

The government began and completed Moore's direct

examination that day, June 12. Moore testified, inter alia, that
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on October 13, 1996, she was living with Debra Anderson, but that

Anderson kicked Moore out of the apartment because of a

disagreement on October 18, 1996. Moore testified that Smith at

various points had been romantically involved with both her and

Anderson and that she met with law enforcement officials sometime

during this period and gave them information concerning Anderson

and Smith.

Later that evening, Smith received the anticipated

disclosures of voluminous medical records relating to Moore from

two mental health institutions. The next morning, Smith renewed

his motion for a mistrial; in the event that his mistrial motion

was denied, he also moved for a three-day continuance until June

16, to afford him "an adequate opportunity to fully review the

records and adequately cross-examine her on them." The district

court denied Smith's motion for a mistrial but granted his request

for a three-day continuance of Moore's cross-examination.

Accordingly, Smith cross-examined Moore on June 16, 1997. He did

not complain that the continuance that he had requested and

received was insufficient, nor did he renew his motion for a

mistrial before cross-examining Moore.

B. Analysis

In delayed disclosure cases, we need not address whether

the evidence was "material" under Brady unless the defendant can

demonstrate that "defense counsel was 'prevented by the delay from

using the disclosed material effectively in preparing and

presenting the defendant's case.'" United States v. Lemmerer, 277
10 Accord Lemmerer, 277 F.3d at 587 n.2 (citing Osorio);

Ingraldi, 793 F.2d at 413 ("[Defendant's] failure to move for a

continuance when he received the [overdue disclosures] indicates

that he was himself satisfied that he had sufficient time to use

them to his best advantage."); United States v. Diaz-Villafane, 874

F.2d 43, 47 (1st Cir. 1989) (observing that defendant's "claim that

he was unfairly surprised is severely undermined, if not entirely

undone, by his neglect to ask the district court for a continuance

to meet the claimed exigency").

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F.3d 579, 588 (1st Cir. 2002) (quoting Ingraldi, 793 F.2d at 411-

12); see also Devin, 918 F.2d at 290 ("[T]he critical inquiry

is . . . whether the tardiness prevented defense counsel from

employing the [tardily disclosed] material to good effect.").

However, we have noted that defense counsel must typically request

a continuance to preserve a claim of prejudice by delayed

disclosure of evidence. See United States v. Sepulveda, 15 F.3d

1161, 1178 (1st Cir. 1993) ("As a general rule, a defendant who

does not request a continuance will not be heard to complain on

appeal that he suffered prejudice as a result of late-arriving

discovery."). See also United States v. Osorio, 929 F.2d 753, 758

(1st Cir. 1991) ("Generally, we have viewed the failure to ask for

a continuance as an indication that defense counsel was himself

satisfied he had sufficient opportunity to use the evidence

advantageously.").10 Here, Smith failed on June 16, 1997, to

request an additional continuance or to renew his motion for a

mistrial. When Smith's counsel appeared in court on June 16, he

never indicated that the three-day continuance was insufficient

time to prepare adequately for Moore's cross-examination. Compare

Devin, 918 F.2d at 289 (noting that defense counsel, unsatisfied
11 The government denies any delay in disclosure, maintaining

that it disclosed the relevant records on Moore (which were not in

the government's possession) as promptly as possible under the

circumstances. We need not resolve that question here. For

purposes of the present analysis, we assume without deciding that

there was a delay in the disclosure of Moore's records.

-25-

with four-day continuance granted to review tardy disclosures,

moved for further continuance of 30 days).

In any event, even if there was a delayed disclosure and

Smith properly preserved a challenge to it, he cannot make the

requisite showing of prejudice.11 We have held that "some showing

of prejudice [is] required beyond mere assertions that the

defendant would have conducted cross-examination differently."

United States v. Walsh, 75 F.3d 1, 8 (1st Cir. 1996). At the very

least, Smith must show "a plausible strategic option which the

delay foreclosed." Devin, 918 F.2d at 290. The impact of the

delayed disclosure on defense counsel's cross examination turns in

part on "the extent the defendant actually managed to use the

[disclosed material] despite the delay." Ingraldi, 793 F.2d at

412. 

The record demonstrates that defense counsel conducted an

effective cross-examination of Moore by using her medical records

and criminal history to attack her credibility. He interrogated

her about her mental health history, along with her prior criminal

record and history of drug abuse. He specifically pressed her

about her involuntary commitment at two mental health facilities

and her treatment with anti-psychotic medication. He inquired into

the effect of that medication on her perception and cognitive
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abilities. He elicited information about her various diagnosed

conditions: a severe bipolar disorder with psychotic features,

paranoia with delusional disorders, and Borderline Personality

Disorder. He questioned her about her $1,000-a-week cocaine habit,

her altercations with other patients while at the mental health

institutions, and her alleged statements in the past expressing a

desire to hurt others.

Moreover, defense counsel's development of other avenues

of impeachment reduces the significance of the information

contained in Moore's medical disclosures. For instance, he asked

her about her use of drugs while on probation and statements she

made to her probation officer about experiencing audio and visual

hallucinations. In addition, defense counsel questioned Moore

about her conviction for assault and battery with a dangerous

weapon, and her receipt of payments for working with the police to

apprehend Smith.

Smith argues that, if his trial counsel had received the

medical records earlier, he would have developed a defense strategy

concerning Moore's extensive history of retaliating against people

whom she perceived had injured or insulted her, instead of

attempting to cast doubt on the reliability of her perception of

reality and her ability to make observations. He claims that his

theory would have been that Moore fabricated her testimony at trial

to retaliate against Smith, who was involved romantically with both

Anderson and Moore at various points. 
-27-

Smith cannot prevail on that argument for two reasons.

First, defense counsel did in fact attempt to question Moore during

cross-examination about several retaliatory acts during her

hospitalizations. Indeed, in his closing argument, defense counsel

posed a rhetorical question to the jury: "Doesn't her mental health

history show her capacity for revenge, the extent to which she

would manipulate others and the situation around her?" This

statement confirms that any delay in disclosure did not foreclose

Smith from identifying the impeachment value of this retaliation

theory. See Devin, 918 F.2d at 289 (holding that, to demonstrate

the requisite prejudice from delayed disclosure, defendant must

make prima facie showing that "the delay foreclosed" a "plausible

strategic option").

Second, the court sustained objections to crossexamination questions about retaliatory acts, thus precluding Smith

from pursuing this line of questioning. Smith, however, makes no

argument on appeal that the district court abused its discretion in

this limitation of his cross-examination. Having failed to make

this predicate argument, Smith cannot be heard to complain that any

delay in the disclosure of Moore's medical records compromised his

ability to pursue the "retaliatory-acts" line of questioning.

In summary, we are satisfied generally that any delay in

the disclosure of Moore's medical records did not impair defense

counsel's "effective use of the information, hinder presentation of
12 Smith filed a pro se supplementary brief in which he raises

a number of additional arguments not argued by his counsel. Our

careful review of his submissions and the record fails to reveal

any issues that merit discussion.

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the defense, result in unfair prejudice, or cause an alteration in

defense strategy." Id. at 291.12

Affirmed.