United States v. Kirvan

• Court: Court of Appeals for the First Circuit
• Decided: July 1, 1993
• Docket: 92-2069
• Status: Published

Opinion

USCA1 Opinion

July 1, 1993
                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2069

                                    UNITED STATES,

                                 Plaintiff-Appellant,

                                          v.

                                   PAUL J. KIRVAN,

                                 Defendant-Appellee.

                                 ____________________

No. 92-2289

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   PAUL J. KIRVAN,

                                 Defendant-Appellant.

                                 ____________________

                                     ERRATA SHEET

The  opinion of  this court  issued  on June  29, 1993  is amended  as
        follows:

            On page  3, line 7, "erred  in a granting"  should read "erred  in
        granting".

            On  page 3, line  20, "the  money in into a  bag" should read "the
        money into a bag".

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2069

                                    UNITED STATES,

                                 Plaintiff-Appellant,

                                          v.

                                   PAUL J. KIRVAN,

                                 Defendant-Appellee.

                                 ____________________

No. 92-2289

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   PAUL J. KIRVAN,

                                 Defendant-Appellant.

                                 ____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                            Cyr and Boudin, Circuit Judges,
                                            ______________
                          and Burns,* Senior District Judge.
                                      _____________________

____________________

Richard Abbott for Paul J. Kirvan.
            ______________
            Timothy Q. Feeley,  Assistant United States Attorney, with whom A.
            _________________                                               _
        John Pappalardo, United States  Attorney, was on brief for  the United
        _______________
        States.

____________________

                                    June 29, 1993
                                 ____________________

        ____________________

        * Of the District of Oregon, sitting by designation.

BOUDIN, Circuit Judge.  Paul Kirvan  appeals from a jury
                         _____________

            verdict finding  him  guilty  on  one  count  of  armed  bank

            robbery, in violation of 18 U.S.C.    2113(d).  The jury also

            convicted Kirvan of carrying  a firearm during the commission

            of a crime of violence, in  violation of 18 U.S.C.    924(c),

            but  the district court set that conviction aside.  On cross-

            appeal,  the government argues that  the trial judge erred in

            granting  a judgment of acquittal  on this second  count.  We

            affirm the  bank  robbery conviction,  reinstate the  firearm

            conviction and remand for resentencing. 

                 The facts, limited  to those pertinent to the  issues on

            appeal, can be briefly stated.  A lone masked  robber held up

            a savings  bank in  Lowell,  Massachusetts, at  3:25 p.m.  on

            August 20,  1991.   The surveillance  photographs taken  by a

            bank camera showed the robber wearing a distinctive  rain hat

            and holding what  appeared to  be a large  handgun.   Several

            persons  in the bank saw the same robber and the gun.  At one

            point the  gun fell  to the  floor with a  loud thump  as the

            robber climbed over  a counter.   The  robber collected  cash

            from several drawers, stuffed  the money into a bag  and fled

            from the bank with the cash and his gun.

                 At about  3 p.m.,  before  the robbery,  an FBI  special
                                    ______

            agent  named Gerald  Mohan happened  to be  driving out  of a

            parking  lot not far from  the bank.   For plausible reasons,

            unrelated  to  the bank  robbery,  Mohan began  to  follow an

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Oldsmobile that turned out to be registered to Kirvan.  Soon,

            the  Oldsmobile stopped, and  a passenger wearing  a rain hat

            left  the car, transferred to a Chevrolet, and both cars were

            driven back toward the bank.  Mohan briefly lost contact with

            the  cars and  then located  the Chevrolet  leaving the  bank

            parking  lot.  As Mohan's  car passed the  Chevrolet going in

            the opposite direction,  he saw  in the driver's  seat a  man

            wearing a rain hat.

                 Mohan  later selected Kirvan's  photograph from an array

            as the man whom  Mohan had seen in the  Chevrolet leaving the

            bank.  Through  other witnesses, there was evidence  that the

            driver and another man had abandoned the Chevrolet (which was

            stolen)  around 3:30  p.m. and switched  to another  car; one

            young witness to the switch of cars testified that one of the

            individuals who left the  Chevrolet looked "Portuguese."  The

            police later discovered a bag and a police-band radio scanner

            in Kirvan's Oldsmobile.

                 On  October  3,  1991, the  grand  jury  handed  down an

            indictment charging Kirvan with  armed bank robbery and using

            or  carrying a firearm  during a crime of  violence.  After a

            six-day  trial, the  jury  returned guilty  verdicts on  both

            counts.  Pursuant  to Fed. R. Crim. P. 29(c),  Kirvan filed a

            motion for judgment  of acquittal.  The  district court judge

            denied the  motion as to the bank robbery count but granted a

            judgment of acquittal on  the firearms count.  On  the latter

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count,  the trial  judge  ruled that  there was  insufficient

            evidence  for a jury to  conclude that a  genuine firearm was

            carried during the robbery.

                 Kirvan's first  argument on  appeal is that  a statement

            made by  the prosecutor during  summation was improper.   The

            statement concerned Mohan's ability to identify the driver of

            the oncoming Chevrolet where the distance between Mohan's car

            and the other car was approximately 3 to 4 feet and both cars

            were  travelling in  opposite  directions between  30 and  35

            miles  per hour.  The  prosecutor said to  the jury, "I'm not

            going to talk in terms of feet or seconds or milliseconds.  I

            want you to put yourselves in the place that [Mohan] was in."

            As defense counsel  did not object  to this statement  during

            trial, the question is whether allowing it to stand was plain

            error.  United States v. Mateos-Sanchez, 864 F.2d 232, 240-41
                    _____________    ______________

            (1st Cir. 1988).

                 Kirvan's brief relies primarily on cases that forbid so-

            called   "golden  rule"  arguments  in  which  plaintiffs  or

            prosecutors ask the jury  to put itself in  the place of  the

            victim.   E.g., Forrestal  v. Magendantz, 848  F.2d 303,  309
                      ____  _________     __________

            (1st Cir. 1988).  But "golden rule" cases do not apply where,

            as here,  the jury is asked to put itself  in the place of an

            eyewitness.   In  this situation,  the invitation  is not  an
            __________

            improper  appeal to the jury to base its decision on sympathy

            for  the victim  but rather  a means  of asking  the jury  to

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reconstruct  the  situation  in  order to  decide  whether  a

            witness' testimony is plausible.

                 Kirvan  also  asserts  that  the  prosecutor  engaged in

            impermissible vouching  for the credibility of  Mohan.  Mohan

            had  been  attacked  vigorously  on   cross-examination  with

            questions designed to suggest  that his reasons for following

            the Oldsmobile were fictitious,  that he had not had  time to

            see Kirvan's  face,  and that  in  other respects  he  lacked

            credibility.  In summation, the prosecutor spoke favorably of

            Mohan, saying to the jury:

                      "  . . . It tells you something about his
                      professional  instincts; they  turned out
                      to be right.   Tells you something  about
                      his  sense  of duty.    It  tells you  he
                      cared, that  he gave a damn,  that he got
                      himself involved.

                      He  didn't wait or let someone else worry
                      about  it.   You  saw  him  on the  stand
                      cross-examined  for how many  hours.  You
                      saw   the  attempt  to  condemn  him,  to
                      criticize  him,  to  embarrass   him,  to
                      humiliate him, to imply  incompetency, to
                      imply deceit.

                         I  suggest  to  you  that  Gerry Mohan
                      should  not  be condemned;  he  should be
                      commended.      That   he  shouldn't   be
                      criticized; he should be applauded.   And
                      he    shouldn't    be   embarrassed    or
                      humiliated.  He should  be proud, and you
                      should be proud of him." 

                 This argument does not constitute improper vouching; the

            prosecutor did not assert his own opinion of Mohan's veracity

            as a witness.  If any criticism could be made, it is that the

            "let  someone else  worry" and  "commended .  . .  applauded"

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commentary by the  prosecutor is inappropriate  cheerleading;

            but this is  hardly plain  error, and, given  the assault  on

            Mohan's  integrity, the remarks may be fair comment.1  As for

            the   prosecutor's  argument   that  events   proved  Mohan's

            instincts  to be  sound, it  may well  be false logic  from a

            philosopher's standpoint but it is perfectly good folk wisdom

            and is neither an appeal to emotion nor personal vouching.

                 Finally, Kirvan argues  that the  prosecutor engaged  in

            impermissible  conduct in recounting  testimony.   As already

            noted, a young witness,  actually one called by  the defense,

            described  the   driver  of   the   Chevrolet  as   appearing

            "Portuguese."  During closing  argument, the prosecutor  told

            the jury:

                      "[The witness] also said that the man, to
                      him,   looked   like  his   ancestry  was
                      Portuguese.   I ask  you to look  at Paul
                      Kirvan.    Imagine  him with  his  hair a
                      little  longer like it  is in the photos.
                      Imagine him  with his skin a  little more
                      tanned like it is in this photo.  Imagine
                      him with a mustache, and imagine him with
                      a beard  that you can see  from your jury
                      box.  Imagine him with  a growth of a day
                      or so of beard and ask yourselves whether
                      [the witness'] characterization--although
                      it   may   not   have  been   technically
                      accurate, ask yourselves  whether it  was
                      descriptively accurate."

____________________

                 1In his  summation, defense counsel called  Mohan a liar
            and deceptive, stupid or both.  While these  remarks followed
            the  prosecutor's,   they  reflect  the   thrust  of  defense
            counsel's earlier cross-examination of Mohan.

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                                         -8-

No objection to these comments was made at trial.  On appeal,

            Kirvan does not claim that allowing the witness' response was

            error.  However, Kirvan contends that prosecutor's  statement

            (quoted above)  during closing  argument  either invited  the

            jury to speculate  about identity based on  a vague criterion

            or was racially inflammatory and deprived the defendant  of a

            fair trial in violation of the United States Constitution.

                 There   may   be  some   force   to   the  notion   that

            "look[ing] . . . Portuguese"  is not much of  a criterion for

            identification, although the description came from a  defense

            witness.    But  defense  counsel had  ample  opportunity  in

            closing argument to point out this weakness to the jury.  The

            defense brief on appeal imaginatively refers us to cases that

            preclude  a   jury  from  viewing  an   infant  to  determine

            paternity; but that rule is not followed everywhere and rests

            in part on considerations  of policy.  In any  event, counsel

            did not object to  the prosecutor's statement at the  time it

            was made, and the statement is not so vague or misleading  as

            to constitute plain error.

                 The claim that the  statement was a racial slur  is more

            serious in that  the "[r]acial  fairness of the  trial is  an

            indispensable ingredient of due process and racial equality a

            hallmark of justice."  United States v. Doe, 903  F.2d 16, 25
                                   _____________    ___

            (D.C. Cir.  1990).   However, the prosecutor's  statement was

            not  in  fact  a  racially  inflammatory  remark;  it  was  a

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permissible, "unembellished reference to evidence of race [or

            ethnicity]  simply  as  a  factor  bolstering  an  eyewitness

            identification of a  culprit."   Id.  Indeed,  we think  that
                                             __

            this charge against the prosecutor should not even have  been

            made.

                 The  government's  cross-appeal   presents  a  far  more

            difficult  question.  Following the  jury verdict of guilt on

            the  second  count  (carrying  a firearm  during  a  crime of

            violence), the court granted  a judgment of acquittal finding

            "no evidence that  the defendant actually  carried a firearm,

            as opposed to a toy gun."  On appeal, we examine the evidence

            in the light most favorable to the government.  If a rational

            trier  of  fact could  have  concluded  that every  essential

            element of the  crime charged was proved  beyond a reasonable

            doubt,  then the  issue should  have been  left to  the jury.

            United States  v. Medina-Garcia,  918 F.2d  4, 6-7 (1st  Cir.
            _____________     _____________

            1990).

                 The  firearm statute,  18 U.S.C.    924(c),  provides in

            relevant  part  that whoever  carries  a  firearm during  the

            commission  of a crime of  violence shall be  sentenced to an

            additional five years' imprisonment (or more if the weapon is

            of  a type here not involved).   It is common ground that the

            gun need not be proved  to be loaded or operable in  order to

            convict, United  States v. Gonzalez,  800 F.2d 895,  899 (9th
                     ______________    ________

            Cir. 1986),  but that a toy  or replica will not  do.  United
                                                                   ______

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States v. Westerdahl,  945 F.2d 1083,  1088 (9th Cir.  1991).
            ______    __________

            The district  court  summed  up  the  evidence  and  held  it

            inadequate  to permit  a reasonable  jury to  find, beyond  a

            reasonable doubt,  that Kirvan carried a real  gun as opposed

            to a toy.

                 The government's riposte is to point to a square holding

            by  then Circuit Judge Scalia in Parker v. United States, 801
                                             ______    _____________

            F.2d 1382, 1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070
                                              ____________

            (1987), that  non-expert  testimony affirming  that a  robber

            used  a gun is enough.  The holding was followed without much

            discussion by  the  Fourth  Circuit  in  a  case  where  five

            witnesses had described the  object as a gun.   United States
                                                            _____________

            v. Jones,  907 F.2d 456 (4th Cir. 1990), cert. denied, 111 S.
               _____                                 ____________

            Ct. 683  (1991).  Kirvan in turn points us to cases which, in

            upholding  convictions   under  this  or   similar  statutes,

            recounted or relied  upon testimony from a firearms expert or

            at least a  witness who saw the  robbery and claimed to  know

            about weapons.  E.g.,  United States v. Buggs, 904  F.2d 1070
                            ____   _____________    _____

            (7th Cir. 1990); Westerdahl, 945 F.2d at 1088.
                             __________

                 If  fake   guns  were   extraordinarily  rare   in  bank

            robberies, it might be fairly easy, absent affirmative proof,

            to dismiss the possibility that the gun was a toy.   The jury

            had  no  actual data,  which  might  be inadmissible  in  any

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event,2  although  it  does  have  considerable  latitude  in

            making intuitive judgments about how the world works.  United
                                                                   ______

            States v.  Guerrero-Guerrero, 776  F.2d 1071, 1075  (1st Cir.
            ______     _________________

            1985), cert. denied, 475  U.S. 1029 (1986).  Nor  does policy
                   ____________

            tilt the  balance, as it might if we faced an issue where the

            government had ready access to direct evidence (e.g., whether
                                                            ____

            a  bank is federally insured)  and no excuse  for leaving the

            matter in doubt.   Of course, Kirvan has  such access but  we

            will not decide  the matter  by relying upon  his failure  to

            produce the gun for inspection.3  

                 We need not decide  here whether the government's burden

            could be met merely by  unembellished lay testimony that "the

            robber  carried a  gun."   In this  instance, the  object was

            identified by  two witnesses as a  gun; one said that  it was

            black and  had a  five  inch barrel  and the  other, who  was

            closer,  supplied  more detail:    he said  that  it appeared

            "shiny,  silver" in color;  that it was  "[l]arge, very large

____________________

                 2See 1  McCormack, Evidence    210,  at 949-50  (4th ed.
                  ___               ________
            1992)  (cases discourage  mathematical proof  and probability
            data  in  criminal  cases).   Such  data  may  exist.   E.g.,
                                                                    ____
            Washington  Post, October 2, 1986, p. C1 ("Neil Hurley, chief
            ________________
            of the grand jury  section of D.C. Superior Court,  said that
            at  least 10 percent of the  armed robbery cases that he sees
            involve fake guns.").

                 3The  problem with  an  adverse inference  is the  Fifth
            Amendment's  bar against  compelled self-incrimination.   See
                                                                      ___
            Griffin v. California, 380  U.S. 609 (1965).  But  cf. Barnes
            _______    __________                         _______  ______
            v.  United   States,  412  U.S.  837   (1973)  (upholding  an
                _______________
            instruction  that unexplained  possession of  stolen property
            permits an inference of knowledge).

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for  a handgun"; and that when it  fell to the floor, it made

            "[a] very loud noise.  Heavy object hitting the floor."

                 Without deciding  whether less  would do, we  think that

            this detail  permitted a rational jury to  conclude that this

            was a  "real" gun:  it  was a plausible size,  colored like a

            real gun, and quite heavy.  One witness could easily describe

            gun metal as black and another as silver.  Although some  toy

            guns might be  of similar  size and color,  the heavy  weight

            certainly would not be as common in a toy.  And while  a good

            replica might still fool a witness at a distance, the chances

            of error decline  where, as  here, the witness  saw the  gun,

            stationary  and at  a  close distance,  for  a least  half  a

            minute.4

                 In sum, we think that the jury, which concluded that the

            object was  a real gun "beyond a reasonable doubt," cannot be

            deemed irrational.  We understand why the trial judge came to

            the opposite view.  But judgments of acquittal are subject to

            de novo review,  United States v. Reed, 977  F.2d 14, 18 (1st
            __ ____          _____________    ____

            Cir.  1992), and if deference is owed  to anyone it is to the

            jury.  In  Judge Prettyman's widely cited formulation,  "if a

            reasonable mind might fairly have a reasonable doubt or might

            fairly  not have  one,  the case  is for  the  jury, and  the

____________________

                 4Kirvan  says that a robber would be unlikely to leave a
            real  gun  unattended  on  the  floor  for  30  seconds;  the
            government  says that  a  robber would  not  leave a  replica
            unconcealed for  any length  of time.   These inferences,  if
            they do not precisely cancel out, are not conclusive.

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decision  is for  the  jurors to  make."   Curley  v.  United
                                                       ______      ______

            States,  160 F.2d 229 (D.C. Cir.), cert. denied, 331 U.S. 837
            ______                             ____________

            (1947).  

                 For the reasons stated above, the judgment of conviction

            on count one is affirmed;  the directed judgment of acquittal
                            ________

            on count two is set aside  and the jury verdict on that count
                            _________

            is reinstated; and the case is remanded to the district court
               __________                  ________

            for resentencing.

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