United States v. Grabiec

• Court: Court of Appeals for the First Circuit
• Decided: September 25, 1996
• Docket: 96-1131
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1131



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               ANTHONY J. GRABIEC, JR.,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Lynch, Circuit Judge.
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                                 ____________________


Scott F. Gleason  with whom Gleason Law  Offices was on brief  for
            ________________            ____________________

        appellant.

            George B.  Henderson, II, Assistant  United States Attorney,  with
            ________________________

        whom  Donald  K.  Stern, United  States  Attorney,  was  on brief  for
              _________________

        appellee.



                                 ____________________



                                  September 25, 1996

                                 ____________________



ALDRICH, Senior Circuit  Judge.  Defendant  Anthony
                               _____________________



            J. Grabiec, Jr., connected with an illegal gambling and loan-



            sharking  organization known  as  the Winter  Hill Gang,  was



            found guilty  of various racketeering offenses,  18 U.S.C.   



            1962(c) and (d), but acquitted on one count under 18 U.S.C.  



            894(a).    On  this  appeal  he  complains  of a  prejudicial



            argument  by the  prosecutor in  his final  summation  to the



            jury,  and of  the court's  refusal to  allow him  to  make a



            particular  argument   based  on  the   government's  opening



            statement.  We affirm.



                      After  defendant's  brief's  lengthy exposition  of



            various types of improper  arguments, their possibly  serious



            consequences,  and  effective   and  ineffective  cures,   it



            developed that the prosecutor's  offense, after defendant had



            charged him with "bias . . . puffery . . . bombast  and . . .



            hot air"1 was to speak of  the defense as "laughable."   More



            exactly:



                           [I]f there is  any bombast,  puffery

                      and hot air in this case, it's not coming

                      from our side of the table.  In fact, the

                      defense in  this case would  be laughable

                      if  the  crimes  involved  were   not  so

                      serious.



            It further  appeared that,  upon  defendant's objection,  the



            court  said to the jury, "Well, the jury will understand that


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            1.  Five times.



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this is argument, not evidence.  It will be  taken that way."



            The  defendant said nothing further.



                      This silence,  of course, means  defendant must now



            prove plain error.  United States v. Wihbey, 75 F.3d 761, 769
                                _____________    ______



            (1st Cir. 1996) (citing United States v. Olano, 507 U.S. 725,
                                    _____________    _____



            731 (1993)); Fed.  R. Crim. P.  52(b).   We do not,  however,



            find even simple error.



                      We can agree with defendant that we  have long held



            that counsel  must not express a personal opinion.  Greenberg
                                                                _________



            v. United States, 280 F.2d 472, 475 (1st Cir. 1960) (Aldrich,
               _____________



            J.).  Again,  in United States v. Nickens, 955  F.2d 112, 121
                             _____________    _______



            (1st Cir.), cert. denied, 506 U.S. 835 (1992), we said, "This
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            court  has  repeatedly  stated  that  it  is  improper  for a



            prosecutor to inject personal beliefs about the evidence into



            closing argument." (citations  omitted).   Although there  is



            perhaps  a heavier  burden on  prosecutors, the  rule applies



            both  ways.   In  United  States v.  Young, 470  U.S.  1, 8-9
                              ______________     _____



            (1985),  the   Court  said,   "Defense   counsel,  like   the



            prosecutor, must refrain  from interjecting personal  beliefs



            into  the presentation  of  his  case." (citations  omitted).



            Strict application  of this  rule in  the course  of extended



            argument, resulting in constant "I suggest  to you that . . .



            " "I ask you  to find . . . " becomes tiresome.  We have been



            content with the court,  in its discretion, substituting "the



            standard  instruction  that  arguments  of  counsel  are  not


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evidence."  United  States v.  Bennett, 75 F.3d  40, 46  (1st
                        ______________     _______



            Cir.  1996), petition for  cert. filed, __  U.S.L.W. __ (U.S.
                         ________ ___  _____ _____



            Jun. 5,  1996) (No.  95-9237).   There the  prosecutor stated



            that a defense argument was a "diversion."  We were satisfied



            with the  court's giving  that instruction.   We  are equally



            satisfied here.



                      Bennett,  in  fact,  is  even more  helpful.    The
                      _______



            prosecution  there  had  asserted  that  one  of  defendant's



            arguments "doesn't pass the laugh test."  We accepted that as



            within the ordinary "rough and tumble," and not violating the



            prosecutor's duty  "to refrain  from  impugning, directly  or



            through implication, the integrity  or institutional role  of



            defense counsel."  Id. 
                               ___



                       Even without Bennett the prosecutor's  conduct was
                                    _______



            unexceptional  for  there  is   another  rule.    As  against



            defendant's   citation  of   the  oft-quoted   adjuration  to



            prosecutors in  Berger  v. United  States,  295 U.S.  78,  88
                            ______     ______________



            (1935),  defendant  fails to  note  the  Court's more  recent



            observation:



                           [I]f  the prosecutor's  remarks were

                      "invited," and did  no more than  respond

                      substantially  in  order  to  "right  the

                      scale," such comments  would not  warrant

                      reversing a conviction.



            United States  v. Young, 470  U.S. at 14  (footnote omitted).
            _____________     _____



            After defendant's oratorical charges, five times repeated, it



            scarcely lay in his mouth to object to a single reply in like


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tone.   United  States v.  Whiting, 28  F.3d 1296,  1303 (1st
                    ______________     _______



            Cir.), cert. denied,  ___ U.S.  ___, 115 S.  Ct. 378  (1994);
                   _____ ______



            United  States v. Nickens, 955 F.2d 112 at 122; United States
            ______________    _______                       _____________



            v. Maccini,  721 F.2d 840, 846 (1st  Cir. 1983).  Even tested
               _______



            as simple error this claim is frivolous.



                      Second, defendant maintains that the court erred in



            restricting his closing argument, thereby ensuring conviction



            on  Count 57, one of two extortion charges.  Specifically, he



            contends  he  was  precluded from  arguing  to  the  jury the



            prosecution's failure  to introduce evidence  promised in its



            opening statement.



                      During his opening, the  prosecutor, in an  attempt



            to describe the defendant's  collection methodology, told the



            jury it would hear evidence that:



                           One night [Grabiec] even barged into

                      Mr. Gagliardi's home in a frenzy, grabbed

                      his wallet, cut up Mr. Gagliardi's credit

                      cards  in front  of Mr.  Gagliardi's wife

                      and  children.   I  suggest to  you  that

                      there can be nothing more terrifying than

                      having  somebody come  into your  home in

                      front of your wife and children and doing

                      something like that.



            While Gagliardi  did eventually testify to  a nighttime visit



            from the defendant that left  him feeling "very, very upset,"



            he  also  testified that  he  had never  been  threatened nor



            intimidated.    When the  government  sought  to introduce  a



            portion of a tape of monitored conversations between Grabiec,


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Gagliardi  and others  contradicting  Gagliardi's  denial  of



            intimidation,2  the  trial  judge  sustained  the defendant's



            objection and excluded the evidence.



                      The defendant, in  his closing argument,  sought to



            seize  the moment  by  reminding the  jury,  "In the  opening



            statement, Mr. Wyshak said to you that  there was going to be



            evidence that in the  middle of the night Mr.  Grabiec barged



            into the home  of Mr.  Gagliardi and was  threatening him  in



            front--," at  which point the prosecutor objected.  The court



            sustained the objection and cautioned the jury that it "heard



            what was said and you  will take your own memory both  of the



            arguments  and  of the  evidence  rather  than what  opposing



            counsel says the  other counsel  said."    Defendant did  not



            attempt to rephrase  his argument  nor did he  object to  the



            ruling  or  request   a  curative  statement  regarding   the



            prosecutor's opening statement.



                      After the verdict, during a colloquy concerning the



            question of defendant's immediate detention under 18 U.S.C.  



            3143(a)(2), defendant  contended that  he had been  prevented



            from  making, what  was in  his  view, a  legitimate argument



            during summation that was directly relevant to his conviction



            on the  extortion count.  The prosecution  responded that the



            restriction was  proper  because "essentially  defendant  was



                                
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            2.  On the  tape, Gagliardi stated that  "[Grabiec] came into

            my house  and he was  fucking terrorizing me  in front of  my

            wife." 



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trying  to   impugn  the  integrity  of   the  Government  by



            commenting on the  fact that they didn't hear  evidence which



            the defendant on its own motion  asked not to be heard by the



            jury. . . ."



                      After reviewing the transcript, the court observed:



                           [I]t  was  that  middle-of-the-night

                      charge   that   triggered  my   immediate

                      ruling: "Objection sustained."   There is

                      a  lot of  difference  between saying  he

                      barged  in in  a frenzy  in front  of his

                      wife at night, cut  up his credit  cards,

                      and saying he barged  in in the middle of

                      the  night.   That carries  an impression

                      after  everybody's gone  to  bed.    It's

                      quite a different charge.   And if you're

                      going to quote the other side's argument,

                      you need to be accurate about it.



                      Defendant argues that his Sixth Amendment  right to



            assistance of counsel was violated by the court's restriction



            of his closing argument.   See Herring v. New York, 422  U.S.
                                       ___ _______    ________



            853  (1975).    Had  the  jury  been  able  to  consider  the



            government's failure to produce  this evidence, he maintains,



            it  would not have convicted  on this extortion  charge as it



            had not  convicted on  the parallel charge  involving another



            victim.



                      The government, while  maintaining that its  reason



            for  objecting  was   valid,  adds  that   defense  counsel's



            mischaracterization  warranted the  court's action.   Because



            defendant  failed to object to the court's ruling and did not



            attempt  to rephrase his  argument, we again  review only for



            "plain error,"  requiring him to  "show an obvious  and clear


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error  under  current  law  that   affected  his  substantial



            rights."  United  States v.  Phaneuf, 91 F.3d  255, 263  (1st
                      ______________     _______



            Cir.  1996); United States v.  Procopio, 88 F.3d  21, 31 (1st
                         _____________     ________



            Cir. 1996); United  States v.  Gilberg, 75 F.3d  15, 18  (1st
                        ______________     _______



            Cir. 1996) (citations omitted).



                      Under the Sixth Amendment,  a defendant is entitled



            to the  assistance of  counsel, including  the delivery of  a



            closing argument which is "a  basic element of the  adversary



            factfinding process  in a criminal trial."  Herring, 422 U.S.
                                                        _______



            at  858.  The court,  however, has broad  discretion over the



            scope of summations.  Id. at  862; United States v. Wood, 982
                                  ___          _____________    ____



            F.2d 1,  4 (1st Cir.  1992); United States v.  Coast of Maine
                                         _____________     ______________



            Lobster Co.,  557 F.2d 905 (1st Cir.), cert. denied, 434 U.S.
            ___________                            _____ ______



            862 (1977); United States  v. Wilbur, 545 F.2d 764,  767 (1st
                        _____________     ______



            Cir. 1976).  Here the court upheld the government's objection



            because,  in  its  opinion,  defendant  mischaracterized  the



            prosecution's  opening  statement.    There  is  a difference



            between "middle of the night" and "one night;" in the context



            of "barging in," the former carries more of an aura of menace



            than the  latter.   To  disallow  a deviation  from  opposing



            counsel's statement  was well within the  court's discretion.



            Moreover, contemporaneous instruction to  the jury to use its



            "own  memory"  of  the  arguments and  evidence  rather  than



            counsels'  representations, in  no way  constrained defendant



            from   continuing   properly  with   his   argument,  without


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paraphrasing opposing  counsel.   We find  no error plain  or



            otherwise.



                      Affirmed.
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