[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 98-1703
UNITED STATES,
Appellee,
v.
DEXTER J. ANDREWS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.
Robert E. Harvey, by appointment of the Court, and Dexter J. Andrews, on brief pro se, for appellant. Jennifer Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.
OCTOBER 14, 1999
Per Curiam. Defendant Dexter Andrews was convicted after a jury trial of possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1). He now appeals, challenging the district court's failure to: exclude a witness who had allegedly violated a sequestration order; grant a new trial due to allegedly improper comments in the prosecutor's closing argument; give a requested jury instruction; and depart downward from the sentencing guidelines. Andrews has also filed pro se briefs raising arguments concerning his sentence and the court's procedure for conducting voir dire. Finding no error, we affirm. Andrews, who had a prior criminal record including multiple Massachusetts felony convictions, was arrested after a police chase in the Mattapan section of Boston involving a car in which he was a passenger. When the car stopped, Andrews fled on foot. Three police officers testified that as Andrews exited the car two handguns fell from his waist. Andrews, however, testified that he had never touched the guns and claimed that they belonged to the driver of the car, Lumumba Roberson. The jury found Andrews guilty and he was sentenced to 210 months in prison. I. Witness Sequestration On Andrews's motion the district court entered a sequestration order barring witnesses from the courtroom during the testimony of other witnesses. At trial, Andrews testified that he had just been introduced to Roberson on the day in question and had never spoken to him before. The government called a rebuttal witness, Officer Gregory Brown, who testified that he had seen Andrews and Roberson together on two occasions. On cross- examination, Officer Brown admitted that he had previously spoken with his partner, Officer Craig Jones, about the fact that Officer Jones was to testify at Andrews's trial. Officer Brown denied that Officer Jones had asked him to testify that he had seen Andrews with Roberson. Andrews argues that Officer Brown violated the court's sequestration order and that the court committed plain error by not excluding his testimony as a sanction for that violation. We disagree. There was no violation of the sequestration order. The order requested by Andrews required only that Officer Brown not be in the courtroom to hear Officer Jones testify, see Fed. R. Evid. 615, and he was not. Andrews was free to request further restrictions covering out-of-court conversations between witnesses, but he did not do so. He cannot complain now that Officer Brown violated an order that the court never entered and he never requested. See United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993). II. Closing Argument Andrews argues that the district court erred in denying his post-trial motion for a new trial based on allegedly improper remarks in the prosecutor's closing argument. Andrews objected to some of those remarks; the court sustained the objection, raised other objections sua sponte, and gave curative instructions. Because Andrews did not move for a mistrial or request further curative instructions in addition to those given by the court, we review only for plain error. See United States v. Grabiec, 96 F.3d 549, 550 (1st Cir. 1996). Andrews contends first that statements by the prosecutor improperly suggested that Andrews had the burden to produce witnesses to rebut the government's evidence. The prosecutor's rebuttal argument included the following passage: [PROSECUTOR:] Where is Mr. Roberson? We don't know where Mr. Roberson is, but Mr. Roberson would not be expected to testify at this
MR. COOPER: Objection, your Honor.
THE COURT: No, sustained. There's no evidence about that at all, that's improper argument. . . .
I've got to with respect to Mr. Roberson, you're to understand, as I told you before, that the defendant had no burden of producing Mr. Roberson, even if he knew where Mr. Roberson was.
The defendant has no duty to bring in any evidence. The fact that the defendant brings in one witness that happens to be himself doesn't mean he has to bring a second witness.
The government, on the other hand, has the burden of convincing you beyond a reasonable doubt. And so if the government wanted to bring Mr. Roberson in here, it was the government's burden to do so, not the defendant's.
We agree with Andrews, and with the district court, that the prosecutor's reference to Roberson may have improperly suggested to the jury that Andrews had the burden to produce Roberson to rebut the government's case. See United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997). In deciding whether a new trial was required, we may consider, inter alia, "whether the judge gave any curative instructions and the likely effect of such instructions . . . ." United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994). Here, as the quoted portion of the transcript indicates, the court intervened promptly and forcefully, in a way that could have left no doubt in the jurors' minds that the burden of proof was solely the government's. Because the curative instruction rendered the misconduct harmless, the court's failure to grant a new trial was not plain error. Andrews complains of improper burden-shifting in other portions of the prosecutor's closing. We find none, and we note that those allegedly improper comments were also answered by strong instructions by the court that dissipated any possible prejudice. Andrews further argues that the prosecutor improperly vouched for the credibility of the government's witnesses when he said, "You had, on the other hand, three officers with absolutely no motive to come in here and tell you anything other than what they saw that night." Improper vouching consists of placing the prestige of the government behind a witness by offering personal assurances about his credibility or indicating that facts outside the knowledge of the jury support the witness's credibility. See United States v. Auch,187 F.3d 125, 130-31 (1st Cir. 1999). Here the prosecutor did neither; instead, he merely referred to the witnesses' lack of motive to lie, which "falls within the accepted bounds and was entirely proper." Id. at 131.` III. Requested Jury Instruction Andrews argues that the court erred in failing to give his requested jury instruction on constructive possession.
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[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 98-1703
UNITED STATES,
Appellee,
v.
DEXTER J. ANDREWS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.
Robert E. Harvey, by appointment of the Court, and Dexter J. Andrews, on brief pro se, for appellant. Jennifer Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.
OCTOBER 14, 1999
Per Curiam. Defendant Dexter Andrews was convicted after a jury trial of possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1). He now appeals, challenging the district court's failure to: exclude a witness who had allegedly violated a sequestration order; grant a new trial due to allegedly improper comments in the prosecutor's closing argument; give a requested jury instruction; and depart downward from the sentencing guidelines. Andrews has also filed pro se briefs raising arguments concerning his sentence and the court's procedure for conducting voir dire. Finding no error, we affirm. Andrews, who had a prior criminal record including multiple Massachusetts felony convictions, was arrested after a police chase in the Mattapan section of Boston involving a car in which he was a passenger. When the car stopped, Andrews fled on foot. Three police officers testified that as Andrews exited the car two handguns fell from his waist. Andrews, however, testified that he had never touched the guns and claimed that they belonged to the driver of the car, Lumumba Roberson. The jury found Andrews guilty and he was sentenced to 210 months in prison. I. Witness Sequestration On Andrews's motion the district court entered a sequestration order barring witnesses from the courtroom during the testimony of other witnesses. At trial, Andrews testified that he had just been introduced to Roberson on the day in question and had never spoken to him before. The government called a rebuttal witness, Officer Gregory Brown, who testified that he had seen Andrews and Roberson together on two occasions. On cross- examination, Officer Brown admitted that he had previously spoken with his partner, Officer Craig Jones, about the fact that Officer Jones was to testify at Andrews's trial. Officer Brown denied that Officer Jones had asked him to testify that he had seen Andrews with Roberson. Andrews argues that Officer Brown violated the court's sequestration order and that the court committed plain error by not excluding his testimony as a sanction for that violation. We disagree. There was no violation of the sequestration order. The order requested by Andrews required only that Officer Brown not be in the courtroom to hear Officer Jones testify, see Fed. R. Evid. 615, and he was not. Andrews was free to request further restrictions covering out-of-court conversations between witnesses, but he did not do so. He cannot complain now that Officer Brown violated an order that the court never entered and he never requested. See United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993). II. Closing Argument Andrews argues that the district court erred in denying his post-trial motion for a new trial based on allegedly improper remarks in the prosecutor's closing argument. Andrews objected to some of those remarks; the court sustained the objection, raised other objections sua sponte, and gave curative instructions. Because Andrews did not move for a mistrial or request further curative instructions in addition to those given by the court, we review only for plain error. See United States v. Grabiec, 96 F.3d 549, 550 (1st Cir. 1996). Andrews contends first that statements by the prosecutor improperly suggested that Andrews had the burden to produce witnesses to rebut the government's evidence. The prosecutor's rebuttal argument included the following passage: [PROSECUTOR:] Where is Mr. Roberson? We don't know where Mr. Roberson is, but Mr. Roberson would not be expected to testify at this
MR. COOPER: Objection, your Honor.
THE COURT: No, sustained. There's no evidence about that at all, that's improper argument. . . .
I've got to with respect to Mr. Roberson, you're to understand, as I told you before, that the defendant had no burden of producing Mr. Roberson, even if he knew where Mr. Roberson was.
The defendant has no duty to bring in any evidence. The fact that the defendant brings in one witness that happens to be himself doesn't mean he has to bring a second witness.
The government, on the other hand, has the burden of convincing you beyond a reasonable doubt. And so if the government wanted to bring Mr. Roberson in here, it was the government's burden to do so, not the defendant's.
We agree with Andrews, and with the district court, that the prosecutor's reference to Roberson may have improperly suggested to the jury that Andrews had the burden to produce Roberson to rebut the government's case. See United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997). In deciding whether a new trial was required, we may consider, inter alia, "whether the judge gave any curative instructions and the likely effect of such instructions . . . ." United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994). Here, as the quoted portion of the transcript indicates, the court intervened promptly and forcefully, in a way that could have left no doubt in the jurors' minds that the burden of proof was solely the government's. Because the curative instruction rendered the misconduct harmless, the court's failure to grant a new trial was not plain error. Andrews complains of improper burden-shifting in other portions of the prosecutor's closing. We find none, and we note that those allegedly improper comments were also answered by strong instructions by the court that dissipated any possible prejudice. Andrews further argues that the prosecutor improperly vouched for the credibility of the government's witnesses when he said, "You had, on the other hand, three officers with absolutely no motive to come in here and tell you anything other than what they saw that night." Improper vouching consists of placing the prestige of the government behind a witness by offering personal assurances about his credibility or indicating that facts outside the knowledge of the jury support the witness's credibility. See United States v. Auch,187 F.3d 125, 130-31 (1st Cir. 1999). Here the prosecutor did neither; instead, he merely referred to the witnesses' lack of motive to lie, which "falls within the accepted bounds and was entirely proper." Id. at 131.` III. Requested Jury Instruction Andrews argues that the court erred in failing to give his requested jury instruction on constructive possession. There was no evidence, however, that generated constructive possession as an issue the government alleged actual possession, and its principal witnesses testified that they saw Andrews in actual possession of the two guns. A defendant is not entitled to an instruction that is not generated by the evidence. See United States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997). IV. Downward Departure from Sentencing Guidelines Andrews argues that the district court erred in failing to depart downward from the sentencing guidelines. Claiming that the court erroneously believed it had no authority to depart downward, he invokes the exception to the general rule that failure to depart is not reviewable on appeal. See United States v. Mangos, 134 F.3d 460, 465 (1st Cir. 1998). Andrews points to the court's statement at the sentencing hearing that "what I am going to do is sentence you to the minimum under the Guidelines of 210 months. I have no authority to do anything else." Without significantly more evidence than Andrews cites, we will not find that a judge of vast experience in sentencing under the guidelines was ignorant of his authority to depart downward in an appropriate case. Reading the judge's remark in context, we conclude that he was merely expressing his view that he could not depart downward in this case because there were no facts justifying such a departure. See United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (coming to same conclusion when district court stated, "if I felt I had the authority to depart, I would"). Andrews raises additional arguments relating to his sentencing in a pro se brief. Those arguments are clearly without merit and we need not discuss them. V. Defendant's Presence During Voir Dire at the Bench Andrews asserts in a pro se brief that the court committed reversible error by conducting individual voir dire of prospective jurors at the bench, with the prosecutor and defense attorney present, while Andrews remained seated at the counsel table. We assume, without deciding, that Andrews had the right to be present at such a bench conference. See Cardinal v. Gorczyk, 81 F.3d 18, 20 (2d Cir. 1996) (assuming that defendant had right to be present at bench voir dire, but finding waiver); United States v. Washington, 705 F.2d 489, 497 (D.C. Cir. 1983) (per curiam) (recognizing defendant's right to be present but finding error harmless). Andrews, however, waived that right when neither he nor his attorney asserted it after the court explained that a marshal would have to accompany Andrews to the bench and sit nearby. See United States v. Gagnon, 470 U.S. 522, 528-29 (1985) (per curiam) (defendant or counsel must affirmatively assert right to be present at conferences, and express "on the record" waiver not required); see also Washington, 705 F.2d at 497 (because right is "infrequently exercised and usually delegated to counsel, unless a specific request is made for the defendant to participate at bench examinations of prospective jurors, such right shall be deemed to have been waived."). The requirement that the marshal be present was a reasonable one and did not invalidate the waiver. See United States v. Santiago-Lugo, 167 F.3d 81, 83-84 (1st Cir. 1999) (security arrangements, including placement of marshals in courtroom, within trial court's "broad discretion"). Affirmed.