Moore, Jr. v. Ponte

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1292



                      ALBERT F. MOORE, JR.,



                           Petitioner,



                                v.



                          JOSEPH PONTE,



                           Respondent.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Nancy J. Gertner, U.S. District Judge]



                       ____________________



                              Before



                      Stahl, Circuit Judge,



                  Magill, Senior Circuit Judge,



                    and Lipez, Circuit Judge.



                      _____________________



    John H. LaChance, by appointment of the Court, with whom

Victoria L. Nadel, was on brief, for petitioner.

    Gregory I. Massing, Assistant Attorney General, Criminal

Bureau, Appellate Division, with whom Scott Harshbarger, Attorney

General, was on brief, for respondent.


____________________



                          August 2, 1999

                       ____________________         MAGILL, Senior Circuit Judge.  A Massachusetts jury

convicted Albert Moore, Jr. of first degree murder on June 18,

1976.  The Essex Superior Court sentenced Moore to life

imprisonment without parole.  On direct appeal, the Supreme

Judicial Court of Massachusetts (SJC) affirmed Moore's conviction. 

See Commonwealth  v.  Moore (Moore I), 393 N.E.2d 904 (Mass. 1979). 

In 1988, Moore filed a motion for new trial in state court,

alleging that he was denied due process by being forced to sit in

a prisoner's dock during trial and that the trial court gave

erroneous instructions to the jury on the malice element of first

degree murder and the reasonable doubt standard.  The court denied

Moore's motion for new trial, and the SJC denied Moore's motion for

leave to appeal.  Moore subsequently filed a petition for writ of

habeas corpus in federal district court pursuant to 28 U.S.C.

 2254, which the district court denied.  We affirm.

                          I.  Background

         We briefly review the facts adduced at trial concerning

the killing of Donald Rimer.  A more thorough review of this

evidence may be found in the district court's opinion below.  See 

Moore v. Ponte (Moore II), 924 F. Supp. 1281, 1292-93 (D. Mass.

1996).

         Donald Rimer was the co-owner and construction supervisor

of a project on which Albert Moore, Jr. served as foreman.  The

evidence at trial showed that Moore disliked Rimer, made numerous

derogatory statements about him, and told a friend that he intended

to kill him.  In the early morning hours of April 14, 1972, Moore

told a friend that he was going to kill Rimer and asked to borrow

a lug wrench.  Moore showed the friend a gun and a key to Rimer's

townhouse.

         The evidence at trial also showed that Moore went to

Rimer's townhouse later that morning and struck Rimer in the head

several times with a blunt object while he was sleeping.  Five

witnesses testified that Moore admitted to them that he had killed

Rimer.  In addition, police introduced numerous pieces of evidence

that linked Moore to the crime.

         Moore was indicted for Rimer's murder in January 1976 and

was tried before a jury in Essex Superior Court.  Before trial

commenced, Moore's counsel asked the court if Moore could sit at

counsel's table instead of being placed in the prisoner's dock. 

The SJC described the prisoner's dock as follows:

                  Most court rooms used for criminal sessions in

         the Commonwealth are equipped with a dock, a

         wooden enclosure, usually measuring four or

         five feet square, in which it has long been

         customary for the defendant to sit during

         trial.  The dock is open at the top, so that

         the upper torso of a seated person is visible. 

         The judge, the court clerk, court officers and

         the jury occupy similar enclosures, the

         arrangement of which varies from court room to

         court room.  The dock as we know it appears to

         be a vestige of the English baledock . . . .



Moore I, 393 N.E.2d at 906-07.  Moore's counsel stated that he knew

of no basis in law for his request, but said that he was bothered

by the dock's potential effect on the jury.  The judge stated that

he would confer with the Sheriff and that counsel's request would

depend on security.  See id. at 906.  The court subsequently denied

Moore's request, and Moore sat in the dock throughout trial.

         At the close of all evidence, the court instructed the

jury on the reasonable doubt standard and the malice element of

first degree murder.  The instructions on reasonable doubt equated

reasonable doubt as doubt for which a good reason could be given,

equated reasonable doubt with moral certainty, stated that one is

morally certain when he would act on his conviction in matters of

the highest importance in his daily affairs, and emphasized that

the government's burden of proof was not absolute and warned

against applying too high a standard.  In its instructions on the

malice element, the trial court told the jury that it could presume

satisfaction of the malice element if the Commonwealth established

that the killing was done without excuse or justification.  Moore

did not object to these jury instructions at trial.

         The jury ultimately found Moore guilty of murder in the

first degree, and the court sentenced him to life imprisonment

without parole.  Moore appealed his conviction to the SJC,

challenging, inter alia, his placement in the prisoner's dock. 

Moore did not challenge the jury instructions on reasonable doubt

or malice in his direct appeal.  The SJC affirmed Moore's

conviction.  See id. at 911.

         On October 5, 1989, Moore filed a motion for new trial in

state court alleging ten trial court errors.  Three claims raised

in the motion that are relevant to this appeal include:  (1) the

trial court violated Moore's due process rights by compelling him

to sit in the prisoner's dock throughout trial; (2) the jury

instructions on the reasonable doubt standard did not properly

inform the jury of the Commonwealth's high burden of proving the

defendant's guilt; and (3) the jury instructions on malice violated

due process by not requiring the Commonwealth to prove this element

of the offense.  On January 4, 1990, the state trial judge

summarily denied Moore's motion for new trial, finding that most of

his claims had been previously advanced or were known but not

raised in earlier proceedings.  The court also stated that Moore's

claims appeared to lack merit.  In June 1990 Moore requested leave

to appeal the decision to the SJC, pursuant to Chapter 278,  33E

of the Massachusetts General Laws.  A single justice of the SJC,

acting as a "gatekeeper," denied Moore's request on the grounds

that the issues raised in the motion were not new or substantial.

         On February 6, 1991, Moore filed a petition for writ of

habeas corpus in federal district court raising the same ten trial

errors alleged in his motion for new trial before the Massachusetts

courts.  The district court initially dismissed all of Moore's

claims, except for his prisoner's dock claim, finding that they

were procedurally barred by adequate and independent state

procedural grounds.  In particular, the court held that the SJC

gatekeeper's denial of leave to appeal because the issues raised

were not new or substantial precluded federal review of the claims. 

The court appointed an attorney to represent Moore on his

prisoner's dock claim, and the case was reassigned to another judge

for consideration on the merits.

         Moore's appointed counsel moved the court to reconsider

the prior order dismissing the jury instructions claims on

procedural grounds.  Moore argued that the SJC gatekeeper's denial

of leave to appeal could not preclude federal review of his jury

instructions claims.  He further argued that the state courts'

reliance on Moore's failure to contemporaneously object to the jury

instructions could not prevent federal review because Massachusetts

courts do not consistently apply that procedural rule.  The

district court agreed with Moore's arguments and proceeded to

analyze Moore's jury instructions claims on the merits.  See Moore

II, 924 F. Supp. at 1295-98.

         On the merits, the district court assumed that the trial

court's use of the prisoner's dock and its instructions on malice

violated due process, but concluded that both errors were harmless. 

See id. at 1291-97.  In a subsequent order, the court also

dismissed Moore's challenge to the jury instructions on reasonable

doubt, finding that they were constitutionally sufficient.  Moore

now appeals from the district court's denial of his petition for

writ of habeas corpus.

                      II.  Jury Instructions

         Before turning to the merits of Moore's appeal, we first

consider the Commonwealth's argument that Moore's jury instructions

claims are barred by adequate and independent state procedural

grounds.  The Commonwealth contends that the district court erred

in holding that Massachusetts courts waive the contemporaneous

objection requirement in cases involving challenges to jury

instructions on reasonable doubt.  The Commonwealth also argues

that the district court erred in holding that the SJC gatekeeper's

denial of Moore's request for leave to appeal did not bar federal

consideration of Moore's challenge to the jury instructions on

malice and reasonable doubt.  We conclude that an adequate and

independent procedural bar precludes federal review of the jury

instructions on reasonable doubt, but conclude that no such bar

exists for Moore's challenge to the instructions on malice.

                        A.  Applicable Law

         When a state court decision rests on a state procedural

rule that is independent of the federal question and adequate to

support the judgment, a federal court may not review a question of

federal law raised in a petition for writ of habeas corpus.  See

Coleman v. Thompson, 501 U.S. 722, 729 (1991).  Considerations of

federalism and comity generally prohibit a federal court from

ignoring the state's legitimate interests in applying its adequate

and independent procedural rules.  See id. at 730-31.

         "A defendant's failure to object in a timely manner at

his state criminal trial may constitute an adequate and independent

state ground sufficient to trigger the bar rule so long as the

state has a consistently applied contemporaneous objection

requirement and the state court has not waived it in the particular

case by resting its decision on some other ground."  Burks v. 

Dubois, 55 F.3d 712, 716 (1st Cir. 1995).

         However, even if a petitioner has procedurally defaulted

a claim in state court, a federal court may reach the merits of his

petition if he shows "cause and prejudice" or that the

constitutional error probably resulted in the conviction of a

person who is actually innocent.  See Simpson v. Matesanz, 175 F.3d

200, 209 (1st Cir. 1999).

            B.  Jury Instructions on Reasonable Doubt

         Moore contends that neither the contemporaneous objection

rule nor the SJC justice's denial of leave to appeal prevents

federal review of his challenge to the jury instructions on

reasonable doubt.  We disagree because this court's recent decision

in Simpson dictates that these rules impose a procedural bar that

precludes federal review of this claim.

         In Simpson, this court held that waiver of a challenge to

jury instructions on reasonable doubt and an SJC gatekeeper's

denial of leave to appeal impose an adequate and independent

procedural bar which precludes federal review.  See id. at 205-09. 

This court explicitly rejected the arguments Moore now makes

regarding the Massachusetts courts' supposedly inconsistent

application of this procedural bar in these types of challenges. 

See id. at 206-09.  Because Simpson is dispositive of this issue,

we now hold that the district court erred in concluding that

Moore's challenge to the jury instructions on reasonable doubt was

not barred by adequate and independent procedural grounds.

         Notwithstanding this procedural default, Moore contends

that he has shown cause for his default because the law regarding

challenges to reasonable doubt jury instructions had not developed

until the Supreme Court's seminal opinions in the 1990s.  See

Victor v. Nebraska, 511 U.S. 1 (1994); Cage v. Louisiana, 498 U.S.

39 (1990) (per curiam).  Moore is correct in recognizing that novel

legal theories may provide grounds for finding cause for a

procedural default, see Reed v. Ross, 468 U.S. 1, 16 (1984), but

the Simpson court recognized that claims like the ones raised in

Moore's petition were available to counsel before 1975, and thus

before Moore's trial and direct appeal.  See Simpson, 175 F.3d at

210-15.  Therefore, we conclude that Moore cannot show cause for

his procedural default and hold that Moore's claim regarding the

jury instructions on reasonable doubt may not be reviewed in this

petition for writ of habeas corpus.  Accordingly, we affirm the

district court dismissal of this claim, albeit on different

grounds.

                 C.  Jury Instructions on Malice

         The Commonwealth contends that the district court erred

in ruling that the SJC gatekeeper's denial of Moore's motion for

leave to appeal under  33E does not impose a procedural bar that

precludes our review of Moore's challenge to the jury instructions

on malice.  We disagree and hold that no procedural bar precludes

federal consideration of this claim.  On the merits, we find that

the jury instructions on malice were constitutionally deficient,

but conclude that the error was harmless.

                        1.  Procedural Bar

         As discussed above, a procedural rule may bar federal

consideration of a claim in a habeas petition only if the state

consistently applies that rule.  See Burks, 55 F.3d at 716.  In

contrast to their treatment of challenges to jury instructions on

reasonable doubt, Massachusetts courts have chosen to waive the

contemporaneous objection requirement when reviewing challenges to

erroneous jury instructions on malice which were given before the

Supreme Court announced its decision in Sandstrom v. Montana, 442

U.S. 510 (1979).  See, e.g., Commonwealth v. Sires, 542 N.E.2d 580,

581 n.2 (Mass. 1989) ("The defendant did not object to the burden-

shifting language at his trial.  However, because the defendant's

trial and direct appeal both occurred prior to the Sandstrom

decision, he did not have a genuine opportunity to raise his

constitutional claim on those occasions." (internal quotation marks

and alterations omitted)); see also Libby v. Duval, 19 F.3d 733,

735 n.5 (1st Cir. 1994) ("[A]lthough petitioner did not object to

the challenged instruction at the time it was given, Massachusetts

has waived its contemporaneous objection rule in the Sandstrom

error context where the error occurred prior to the Sandstrom

decision."); Commonwealth v. Adrey, 493 N.E.2d 875, 877 (Mass.

1986) ("We have previously held that . . . constitutional theories

[regarding the impropriety of mandatory presumptions in jury

instructions on malice] were not sufficiently developed for a

defendant to be chargeable with knowledge about them until the

Supreme Court's decision in [Sandstrom].").  Because Massachusetts

courts overlook the contemporaneous objection requirement in pre-

Sandstrom cases, the state court's reliance on a procedural bar to

preclude review of this issue constitutes an inconsistent

application of its procedural rules and cannot prevent federal

review of this claim.  We, therefore, proceed to analyze the merits

of Moore's claim of error.

                            2.  Merits

         Moore contends that the trial court's jury instructions

on malice created an improper mandatory presumption that violated

his due process rights.  The Commonwealth concedes that a portion

of the jury instructions on malice contained an improper mandatory

presumption, but argues that other language in the instructions

cured this defect or, in the alternative, that the defect was

harmless error.  We conclude that the trial court's instructions on

malice were constitutionally deficient, but find that the error was

harmless.

         Evidentiary charges in jury instructions that relieve the

government of its burden of proving each element of the offense

beyond a reasonable doubt violate the Due Process Clause of the

Fourteenth Amendment.  See Sandstrom, 442 U.S. at 520-24. 

Accordingly, jury instructions that create mandatory presumptions--

which instruct a jury that it must infer an elemental fact, such as

malice, from a basic fact, such as a knowing act--may result in

such a violation.  See Hill v. Maloney, 927 F.2d 646, 648-49 (1st

Cir. 1990).  The challenged portion of the jury instructions on

malice stated, "[w]here the fact of killing is shown and there are

no circumstances to disclosed [sic] tending to show justification

or excuse, there is nothing to rebut the natural presumption of

malice."  Trial Tr. at 2015.  The Commonwealth concedes that this

portion of the instruction created an impermissible mandatory

presumption on the malice element.

         Even if a jury instruction creates an impermissible

mandatory presumption, we must still consider "whether other parts

of the instruction explained 'the particular infirm language to the

extent that a reasonable juror could not have considered the charge

to have created an unconstitutional presumption.'"  Hill, 927 F.2d

at 649 (quoting Francis v. Franklin, 471 U.S. 307, 315 (1985)).  To

make this assessment, we must "determine whether other language in

the charge explains the infirm language sufficiently so that there

is no reasonable likelihood that the jury believed it must find

malice if it found petitioner did the [killing without excuse or

justification]."  Id. at 651.

         Although other portions of the instructions correctly

described the malice element, nothing in those statements informed

the jury that the presumption was permissive rather than mandatory. 

Thus, we conclude that the instructions on malice created an

impermissible mandatory presumption that was not cured by other

language in the instructions.

         Although we conclude that the jury instructions on malice

were constitutionally deficient, we must still consider whether the

trial court's error was harmless.  See Libby, 19 F.3d at 738.  We

conclude that it was.

         A Sandstrom error may be considered harmless if the

Commonwealth shows that the error did not have a substantial and

injurious effect or influence on the jury's verdict.  See id. at

739-40.  After reviewing the record, we conclude that the jury

instructions on malice did not have such an effect.

         The record provides substantial evidence that the

defendant killed Rimer with the requisite state of mind to

establish murder in the first degree.  The undisputed evidence

showed that Rimer was killed as a result of several blows to the

head with a blunt object.  Testimony also showed that Rimer was

asleep at the time of the attack.  At trial, the parties disputed

the identity of the killer, not whether he possessed the requisite

state of mind for a murder conviction.  Cf. Neder v. United States,

___ U.S. ___, No. 97-1985, 1999 WL 373186, at *11 (June 10, 1999)

(recognizing that trial court's failure to instruct jury on element

of offense is harmless when existence of element is uncontested and

supported by overwhelming evidence).  The jury also found that

Moore killed Rimer with deliberate premeditation, a prerequisite to

first degree murder.  This court has recognized that a jury's

finding of deliberate premeditation is generally inconsistent with

a finding that the jury relied on presumed intent.  See Douchette

v. Vose, 842 F.2d 538, 542-43 (1st Cir. 1988).  In light of these

considerations, we conclude that the trial court's erroneous

instructions on malice did not have a substantial or injurious

effect on the jury's verdict.  The error was therefore harmless and

does not provide a basis for habeas relief.

                      III.  Prisoner's Dock

         Moore, relying on this court's decision in Young v.

Callahan, 700 F.2d 32 (1st Cir. 1983), asserts that he was deprived

of due process by being required to sit in a prisoner's dock

throughout trial even though the dock served no security interest

in his case.  The Commonwealth argues that Moore may not raise this

claim of error because he relies on a rule of criminal procedure

not announced until after his conviction became final.  Although a

defendant generally may not rely on a new rule of criminal

procedure, we conclude that the rule announced in Young was not a

"new rule" and that Moore may rely on it to support his claim of

error.  On the merits, we conclude that the trial court's use of

the dock did not result in a deprivation of due process.

                       A.  Teague Analysis

         A defendant alleging constitutional error in a federal

habeas proceeding may not generally take advantage of new rules of

criminal procedure announced after his conviction has become

final.  See Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality

opinion).  However, a case does not announce a "new rule" of

criminal procedure if the rule was dictated by precedent existing

when the defendant's conviction became final.  See Caspari v.

Bohlen, 510 U.S. 383, 390 (1994).  A rule is "dictated by

precedent" whenever we can say that a state court has acted

objectively unreasonably, under existing precedent, in denying the

relief the defendant now seeks in federal court.  See O'Dell v.

Netherland, 521 U.S. 151, 156 (1997).  "At bottom, . . . the Teague

doctrine validates reasonable, good-faith interpretations of

existing precedents made by state courts even though they are shown

to be contrary to later decisions."  Id. (internal quotation marks

omitted).

         This court first held that use of the prisoner's dock in

the absence of security concerns violated due process in 1983, see

Young, 700 F.2d at 37, well after Moore's conviction became final

in 1979.  The district court concluded that the rule announced in

Young was not a "new rule" because it was dictated by precedent

existing when Moore's conviction became final.  See Moore II, 924

F. Supp. at 1289-91.  We agree with the district court's analysis.

         In 1970, the Supreme Court indicated its approval of

using physical restraints to control unruly defendants in criminal

trials, but stated that such restraints should only be used as a

last resort.  See Illinois v. Allen, 397 U.S. 337, 344 (1970).  In

1976, the Supreme Court was asked to consider whether compelling a

defendant to appear at trial in prison or jail attire violated his

due process rights.  See Estelle v. Williams, 425 U.S. 501 (1976). 

The Supreme Court answered in the affirmative, holding that

defendants may not be compelled to attend trial in prison or jail

clothing because it could impair the presumption of innocence.  See

id. at 504.  The Court recognized that prison or jail attire

constantly reminds jurors of the defendant's incarceration and

could affect their judgment.  See id. at 504-05.  In contrast to

the use of physical restraints when they serve a legitimate

security purpose, the Court recognized that prison or jail attire

furthers no essential state policy.  See id. at 505.

         Before Moore's conviction became final in 1979, this

court, in dicta, strongly criticized Massachusetts's practice of

forcing criminal defendants to sit in a prisoner's dock at trial. 

See Walker v. Butterworth, 599 F.2d 1074, 1080-81 (1st Cir. 1979). 

The Walker court noted that confinement in a prisoner's dock was

analogous to the compelled use of prison and jail attire condemned

in Williams.  See id. at 1080.  The court stated that "[b]ecause

confinement in the prisoner dock is unnecessary to accomplish any

important state interest and may well dilute the presumption of

innocence, the Massachusetts prisoner dock must be considered, as

a general matter, to be an unconstitutional practice."  Id. at

1081.  This court squarely confronted the issue in Young and held

that use of the prisoner's dock, in the absence of security

concerns and a curative instruction to the jury, violates a

defendant's right to due process.  See 700 F.2d at 36-37.

         Based on our review of the legal landscape at the time

Moore's conviction became final, we agree with the district court's

well-reasoned conclusion that use of the prisoner's dock, absent

security concerns, would violate a defendant's right to due

process.  See Moore II, 924 F. Supp. at 1289-91.  In Williams, the

Supreme Court recognized the deleterious effect badges of

confinement could have on the presumption of innocence and the

jury's assessment of the defendant's guilt.  See Williams, 425 U.S.

at 504-05.  As this court recognized in both Walker and Young, the

Supreme Court's concerns about the effects of prison and jail

attire apply with equal force to defendants compelled to sit in a

prisoner's dock during trial.  See Young, 700 F.2d at 34-37;

Walker, 599 F.2d at 1080-81.  As the Young court also recognized,

the practice of using prisoner's docks in jury trials was nearly

non-existent in other jurisdictions, and ABA Standards, relied upon

by the Supreme Court in Williams, advised against using physical

restraints in the courtroom.  See Young, 700 F.2d at 35-36 & nn.5-

6.  In response to Moore's direct appeal, the SJC adopted a

prospective rule forbidding use of the dock absent security

concerns.  See Moore I, 393 N.E.2d at 907-08.  Although the SJC did

not directly address the constitutional issue in Moore I (because

Moore did not raise a constitutional objection), it reconsidered

the practice of using the prisoner's dock in response to this

court's Walker decision.  See id. (citing Walker and ABA

Standards).  Based on our review of the legal landscape at the time

Moore's conviction became final, we conclude that Young's

prohibition on the use of the prisoner's dock, absent security

concerns, did not constitute a "new rule" because it was compelled

by precedent existing at the time Moore's conviction became final. 

Therefore, Moore may rely on this rule to support his claim of

error.                            B.  Merits

         After reviewing the record in this case, we conclude that

the trial court's use the prisoner's dock did not result in a

deprivation of due process.  First, we note that the trial court

was clearly concerned about security when it considered Moore's

request to sit at counsel's table.  See Moore I, 393 N.E.2d at 906,

908; cf. Young, 700 F.2d at 35 ("Unlike in Bumpus or in Moore,

there is no evidence here that the trial court was concerned over

security.").  In response to counsel's request that Moore be

allowed to sit at counsel's table in lieu of the dock, the judge

said, "'I will make some inquiry from the sheriff to see, because

the Sheriff has, of course, the responsibility of security, so I

will make some inquiry with reference to your request to have him

sit next to you.  That depends on security.'"  Moore I, 393 N.E.2d

at 906.  Although the judge did not state on the record the reasons

he ultimately denied Moore's request to sit at counsel's table, he

clearly articulated security concerns and indicated that he would

base his decision on those concerns.  Furthermore, the court also

complied with Young's requirement that a curative instruction be

given to help alleviate the potential prejudicial effects of the

dock.  See Trial Tr. at 577.  In light of these circumstances, we

conclude that Moore's placement in the dock did not result in a

deprivation of due process.

         Even if we were to conclude that the trial court's use of

the prisoner's dock violated due process, we would agree with the

district court's well-reasoned conclusion that the error was

harmless.  See Moore II, 924 F. Supp. at 1294-95.  

         As the district court properly recognized, the evidence

presented at trial of Moore's guilt was highly compelling.  See id.

at 1292 (recounting the substantial evidence of Moore's guilt). 

Five independent witnesses testified that Moore admitted to killing

Rimer.  Moore had a motive for killing Rimer, and the physical and

circumstantial evidence placed Moore at the crime scene.  Moore

testified at trial, and we agree with the district court's

conclusion that the jury's impression of Moore was more likely the

result of his testimony and the government's evidence, rather than

speculation about his placement in the dock.  Under these

circumstances, we conclude that even if the trial court's use of

the prisoner's dock did deprive Moore of due process, that error

did not have a substantial and injurious effect on the jury's

verdict and, thus, was harmless.

                         IV.  Conclusion

         In sum, we conclude that Moore's challenge to the jury

instructions on reasonable doubt is barred by adequate and

independent state procedural grounds.  After reviewing the merits

of Moore's challenge to the jury instructions on malice, we find

constitutional error but conclude that it was harmless.  Finally,

we conclude that Moore's placement in the prisoner's dock did not

violate his due process rights.  The district court's dismissal of

Moore's petition for writ of habeas corpus is AFFIRMED.


Concurrence Follows         LIPEZ, Circuit Judge, (Concurring).  I agree with the

result reached by my colleagues.  With one exception, I also agree

with the reasoning set forth in their opinion.  That one exception

relates to the conclusion that Moore's placement in the prisoner's

dock did not result in a deprivation of due process.  The district

court chose not to resolve the due process issue raised by the use

of the dock, noting the failure of the trial judge to find an

explicit security justification for its use.  See Moore II, 924 F.

Supp. at 1293.  The district court further noted that this failure

to set forth such a justification "impedes meaningful appellate (or

collateral) review of his decision."  Id.  I agree with that

proposition.  Therefore, taking the approach used by the district

court, I conclude that relief is not warranted because the error in

the use of the prisoner dock, if any, was harmless.