UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2018
UNITED STATES,
Appellee,
v.
RAYMOND MORENO, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Boudin, Circuit Judges.
Lawrence P. Murray with whom Henry F. Owens, III and Owens &
Associates were on brief for appellant.
Ralph F. Boyd, Jr., Assistant United States Attorney, with whom
A. John Pappalardo, United States Attorney, and Michael J. Pelgro,
Assistant United States Attorney, were on brief for appellee.
May 6, 1993
BOUDIN, Circuit Judge. Defendant Raymond Moreno, Jr.,
appeals his conviction in the district court for possession
of an unregistered firearm, 26 U.S.C. 5861(d), and of
ammunition by a convicted felon, 18 U.S.C. 922(g)(1).
Moreno argues that evidence was lacking to support the
verdict; that the court erred in admitting what he
characterizes as evidence of "prior bad acts;" and that
comments by the prosecutors to the jury deprived him of a
fair trial. For the reasons that follow, we affirm Moreno's
convictions.
I.
Moreno first argues that the evidence introduced at
trial was insufficient. Our inquiry is a limited one: to
decide whether there was evidence from which a rational trier
of fact could have concluded beyond a reasonable doubt that
Moreno possessed the firearm and the ammunition. Legitimate
inferences must be drawn, and credibility determinations
resolved, in favor of the verdict. See United States v.
Anguilo, 897 F.2d 1169, 1197 (1st Cir.), cert. denied, 111 S.
Ct. 130 (1990).
From the government's evidence at trial (Moreno
presented no evidence of his own), a reasonable jury could
have found the following. On the evening of April 18, 1991,
a group of five law enforcement officers, while on foot
patrol in the Lenox Street Housing Development in Boston,
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Massachusetts, heard a series of gunshots coming from another
area within the development. Three of the officers, Officers
Garvey, Perkins and Devane, ran in the direction of the
shots; the other two, Officer Murphy and Trooper Drummy,
returned to their parked cruisers.
As the three officers were running down Hammond Street
in the direction of the shots, they observed three black
males, all wearing black hooded sweatshirts or jackets,
emerge from a courtyard in the direction of the gunshots, run
across Hammond Street and disappear near a cluster of
buildings across the street. One of the officers described
the three men as running in a line in a "hunched over"
manner. There was only the briefest interval when the
defendants together disappeared from view. Almost at once,
two of the three officers, joined by Officer Murphy (who had
left his cruiser to assist in the foot pursuit), saw the same
three men running through a parking lot behind the cluster of
buildings, and gave chase.
The officers then saw one of the three men veer off from
the other two and run in a separate direction. The second
and third men were then seen by the officers to come together
briefly and appeared to pass an object between them. Officer
Murphy, who was closest to the two individuals, described the
item being exchanged as a dark object about one to one-and-a-
half feet long. The individual who took this object then ran
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off through a grass courtyard. The individual who passed on
the object immediately stopped, raised his arms and
surrendered. That individual was later identified as the
defendant, Raymond Moreno, Jr.
Officer Garvey, in order to cut off any escape route,
had circled around to the opposite end of the grass
courtyard. Officer Garvey soon saw a black male wearing a
black hooded sweatshirt enter the courtyard from the area in
which Moreno had just been arrested. After telling the man
several times to stop, Officer Garvey saw the man make a
gesture as if to throw an object aside, and then heard a soft
thud on the ground nearby. The man was arrested and
identified as Frederick Hardy, who was tried and convicted
along with Moreno but is not a party to this appeal. A
search of the area revealed a .32 caliber pistol about five
to eight feet from where Hardy stopped and made the throwing
gesture.
When arrested, Hardy was not in possession of the foot-
long object that the officers had seen him receive from
Moreno. The officers then searched the path between the area
of Moreno's arrest and the spot at which Officer Garvey first
observed Hardy. Hidden in bushes along that direct route,
the officers found a double-barrelled sawed-off shotgun with
a 12 1/2 inch barrel, fully loaded with ammunition. This is
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the firearm and ammunition which Moreno is charged in this
case with having possessed.
While Moreno and Hardy were being arrested, Officer
Devane was in search of the first of the three runners, who
had gone off in a separate direction. Officer Devane
discovered a black male, sweating and out of breath and
wearing a black hooded sweatshirt, hiding in some bushes.
After arresting the individual and placing him in a cruiser,
Officer Devane found a semi-automatic pistol on the ground
near where the individual had been hiding. The pistol was in
the lock-back position, smelled of gunpowder, and was out of
ammunition, indicating that it recently had been discharged.
The arrested individual was identified as Steven Fernandes.
Several officers then went back to a central courtyard
in the middle of the Lenox Housing Development. This
courtyard was in the general area of the gunshots, and it was
immediately accessible from the spot where the three arrested
men were first observed by the officers. In the courtyard,
the officers found discharged cartridge casings. These spent
casings were matched by a ballistics expert to the pistol
that was found next to Stephen Fernandes.
At the police station after his arrest, Moreno, after
receiving his Miranda warning, denied knowing either Hardy or
Fernandes. He claimed that he had been standing alone in the
housing development when he heard shots and started running.
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At trial, however, a resident of the housing development
testified that he had seen Moreno together with Hardy and
Fernandes a number of times over the prior year. In
addition, Officer Dreary of the Boston Police testified that
in March 1991 he stopped a red Isuzu Trooper; Hardy was the
driver and Moreno was a passenger in the front seat.
We think a reasonable jury could conclude beyond a
reasonable doubt from this evidence that Moreno possessed the
sawed-off shotgun and its ammunition. Officer Perkins
testified that he "saw [the two men] meet and . . . could see
them having some kind of exchange," but he was not close
enough to describe the object. Officer Murphy, who was
closer to the men, did observe the object--which he described
as "about a foot and a half [long]" and "dark in color." It
was found directly in the path Hardy took after the exchange
with Moreno, prior to his apprehension by Officer Garvey.
Once the police testimony is credited, Moreno is effectively
tied to the loaded shotgun.
The direct evidence as to the shotgun was reinforced by
other evidence. First, Moreno and the individuals seen
running away were fleeing from an area in which shots had
been fired--shots that the jury could infer had been fired by
one of the group, since a pistol belonging to one of the
three matched shell casings found in the area of the
gunshots. Second, Moreno's false denial after his arrest of
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a prior relationship with Hardy and Fernandes suggests a
guilty mind and helps rebut any inference that he was merely
in wrong place at wrong time. The direct evidence, bolstered
by these secondary inferences, was more than enough to
support the jury's verdict.
II.
Next, Moreno argues that the trial court committed error
by allowing the government to introduce evidence of the
gunshots heard by the officers prior to Moreno's arrest, the
semi-automatic pistol found with Fernandes and the spent
shell casings matching that pistol. Describing the evidence
as proof of "other crimes" under Fed. R. Evid. 404(b), Moreno
argues that this evidence related only to his character or
propensity to commit crime rather than to any legitimate
issue in the case. Rule 404(b) provides that 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." Such evidence is not prohibited,
however, if offered for "other purposes." Fed. R. Evid.
404(b). See United States v. Rodriguez-Estrada, 877 F.2d 153
(1st Cir. 1989).
In this case, the government's evidence of the gunshots,
Fernandes' pistol, the matching spent ammunition, and Hardy's
weapon supports a chain of inferences independent of any
tendency of the evidence to show bad character. The evidence
-7-
permits the inference that Fernandes, with Hardy and Moreno
in attendance, was the individual who discharged the
gunshots, and that the three men were running together from
the scene of that discharge when first observed by the
officers. In turn, the facts that Fernandes and Hardy were
armed and that the three men were fleeing together after
Fernandes had discharged three rounds of ammunition made it
somewhat more likely that the object Moreno was seen to pass
along to Hardy was indeed the shotgun later found nearby.
See, e.g., United States v. Currier, 821 F.2d 52, 55 (1st
Cir. 1987) (the proffered evidence of other bad acts was
"closely intertwined with the charged offense of possession,
providing both significant contextual material and proof that
the defendant possessed the gun").
An example may be of help in understanding the
inference. If a defendant were charged with shooting a guard
in the course of a bank robbery, it would surely be
permissible to show that he was caught fleeing from the scene
of a just-robbed bank with two other persons who both
possessed weapons. The defendant could certainly argue to
the jury that he was an innocent bystander who was fleeing
from a dangerous scene. But the fact of the bank robbery and
the possession of the weapons by others arguably associated
with the defendant would surely be relevant evidence that the
jury could consider along with other evidence against the
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defendant. If the other evidence included some eyewitness
testimony that the defendant had run with the others and had
appeared to be carrying a weapon, the facts would not be far
from our case.
Indeed, not only are the gun shots and other weapons
relevant to the government's case against Moreno but the
ordinary risks presented by Rule 404(b) evidence are
especially tame in this case. The hand-guns were not found
with Moreno but with other defendants and the gun shots were
apparently fired by Fernandes. In other words the evidence
suggested "other crimes" not by Moreno but by Fernandes and
Hardy. The usual taint of "other crimes" evidence--the risk
that the jury will think the defendant a bad man because he
committed other crimes--was, so far as it threatened Moreno,
largely absent. If the jury otherwise thought him an
innocent bystander, it had no reason to attribute to him the
crimes of Fernandes and Hardy.
Of course, if the jury accepted the officers' testimony,
it could conclude that Moreno was not a bystander innocently
fleeing from danger but rather was associated with the other
defendants, had run with them, had handed off his own weapon
to Hardy, and had after his arrest falsely denied knowing the
other two. If so, the evidence of gunshots furnished the
occasion and context for the flight by all three defendants;
and the weapons possessed by the other two made it more
-9-
likely, if only slightly, that Moreno too might be armed. At
least the jury was entitled to consider the evidence of
gunshots and other weapons and draw such inferences if it
chose to do so.
In short, the evidence was clearly admissible on a
theory entirely separate from any light it might cast upon
Moreno's "character." Whether the relevance of such evidence
is substantially outweighed by its prejudicial effect is a
judgment largely within the broad discretion of the trial
judge. Fed. R. Evid. 403; United States v. Simon, 842 F.2d
552, 553 (1st Cir. 1988). A defendant is entitled on request
to a limiting instruction, warning the jury not to draw the
forbidden inference of bad character. Fed. R. Evid. 105.
Moreno's counsel in this case did not seek such an
instruction, requesting only a far broader one to which he
was not entitled.1
III.
The most troubling aspect of this appeal concerns
statements made by the government during argument to the
jury. In his opening remarks, the prosecutor stated, "[T]he
evidence will show that [the police officers] were doing
1Asked what limiting instruction he would like, Moreno's counsel asked for one telling the jury that evidence of Fernandes' pistol and the spent shell casings "is not to be considered against the case of Mr. Moreno" or "in no way can be used by this jury" against Moreno. Since the evidence could properly be used against Moreno, the district court quite properly refused this instruction.
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their jobs protecting the community that has been plagued by
violence, senseless violence, shootings and killings. That's
why they were there and that's why we're here today."
There was, of course, no evidence in this case of
"senseless violence" or "shootings and killings," and it was
patently improper for the prosecutor to make these remarks to
the jury. The argument, playing upon the jury's emotional
reaction to neighborhood violence, was outside the bounds of
legitimate argument and cannot be condoned. See United
States v. Johnson, 952 F.2d 565, 574 (1st Cir. 1991)
(admonishing "prosecutorial commentary serving no purpose
other than to inflame the passions and prejudices of the
jury, and to interject issues broader than the guilt or
innocence of the accused" (citations and internal quotations
omitted)), cert. denied, 113 S. Ct. 58 (1992).
We do not believe, however, that reversal is warranted.
The experienced trial judge, who was in the best position to
appraise the prejudicial impact of the prosecutor's remark,
thought a curative instruction the correct remedy. When
objection was made, at the end of the prosecutor's opening,
the trial judge forcefully cautioned the jury:
I must give you some instructions to disregard some of the things that were said in the opening statement. There were references to violence in the area, to other incidents in the area than those that are the subject matter of this trial. I will instruct you to disregard all of those references. Some were made very early in the opening statement, others were made in the course of it and toward the
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end of the opening statement. We are here to try on the evidence with respect to the charges against these defendants, only the charges against these defendants. It is not your function or the function of the court or anyone else to be concerned about anything other than the charges against these defendants and the evidence bearing upon that. You will erase from your mind the arguments about other violence, and the phrase "senseless killings" was used. Those are not matters to be considered by you as you weigh and evaluate the evidence that relates to this case.
We think that this powerful and contemporaneous instruction
was adequate to dispel any prejudice caused by the
prosecutor's remarks. See United States v. Giry, 818 F.2d
120, 134 (1st Cir.), cert. denied, 484 U.S. 855 (1987).
What is no less disturbing is that, even after the
warning embodied by this instruction, the prosecutor again
departed from the straight and narrow in his closing. In the
course of arguing that the shotgun was not just tossed away
but deliberately concealed, the prosecutor--apparently
carried away--continued: "Forget about the fact that maybe
Mr. Hooker [who lived nearby] or his wife or his three kids
might come out and look at the gun and get their heads blown
off." The court then gave a lengthy curative instruction,
and the case proceeded. The curative instruction was rather
oblique on this issue but it was lengthy, and we are
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satisfied that the jury got the message to ignore what had
just been said.2
If we thought that this second foray was deliberate,
there might well be a basis for reversal as a deterrent for
the future, see United States v. Capone, 683 582, 586 (1st
Cir. 1982), even though this remark did not directly relate
to Moreno for nothing in the evidence suggested that Moreno
had carelessly concealed the weapon where Mr. Hooker or his
family might find it; that was the act of another defendant.
In context, however, the prosecutor's remark does not appear
to have been a deliberate disregard of the court's earlier,
implied warning. Rather, although improper it was seemingly
a sudden expression of indignation at the tail-end of a
legitimate larger point.
Finally, in appraising possible prejudice, we do not
ignore the fact that the case against Moreno was ample. As
we said in Giry, 818 F.2d at 133, "prejudice that survives
the charge is deemed less likely to have affected the outcome
of the trial where strong evidence supports the prosecution's
case". Here, both judges who join in this majority opinion
have independently reviewed the transcripts of the trial
testimony in this case, in addition to the briefs; and both
2The judge was, at the same time, cautioning the jury to give no weight to any personal opinions expressed by the prosecutor, then or earlier. After completing the curative instruction, the judge gave the lawyers the opportunity to ask for more, and neither requested any addition.
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are satisfied that the case against Moreno was quite strong
and that the objectionable remarks, in context and in light
of the instructions given by the trial judge, would not have
swayed the jury.
As the evidence already recited shows, Moreno was
directly identified by two police officers as running from
the area after gunshots. He was seen by one of the officers
to hand over a foot-long object to a second man, and the
sawed-off shotgun in question was found near the path where
the third one had run shortly before he too was apprehended.
This evidence was coupled with other evidence showing the
possession of weapons by Moreno's companions, their flight
together with Moreno, and Moreno's denials that he knew the
other two--denials proved to be false by two different
witnesses.
The trial of this relatively simple case stretched over
10 days. The trial time was devoted entirely to government
evidence, since the defendants did not testify and presented
no witnesses of their own. The government put on 21
witnesses, including five officers who were present at the
time that Moreno was pursued and whose key testimony has been
summarized above. We also note that, although this does not
excuse the government's missteps, defense counsel made
arguments before the jury that were not beyond criticism,
including cross-examination inappropriately injecting racial
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issues into the case. In sum, the government's case was
substantial and the imperfections in counsel's rhetoric were
not all on one side. On balance, we are convinced that
the prosecutor's missteps did not deprive Moreno of a fair
trial or a just outcome. The prosecutor's improper remarks
were by and large aberrations, met by prompt countervailing
instructions, in a 10-day trial that was otherwise consumed
by a detailed exposition of the events of April 18, 1991.
This court has found that even more objectionable statements
by prosecutors did not warrant reversal where a corrective
instruction was given, e.g., Giry, 818 F.2d at 120 (argument
comparing charged drug offenses to an "agree[ment] to kill
the judge"), or no timely objection was made, e.g., United
States v. Machor, 879 F.2d 945, 955 (1st Cir. 1989) (drugs
"poisoning our community, and our kids die because of this"),
cert. denied, 493 U.S. 1094 (1990). The district court acted
within its discretion in this case in concluding that the
prosecutor's misstatements did not so "poison[] the well" as
to require a new trial. United States v. Mejia-Lozano, 829
F.2d 268, 274 (1st Cir. 1987).3
3We have reviewed the other remarks of the prosecutor objected to by Moreno, including the distinct claims that the prosecutor disparaged defense counsel and engaged in improper expressions of personal belief. In some instances, we think the prosecutor made permissible arguments and in others, all milder than the two discussed in text, we think the curative instructions given were adequate.
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Nevertheless, for the sake of future cases, we think
this worth saying: inflammatory comments to the jury are not
only bad tactics in the case at hand but, especially if
repeated after warnings, will exhaust the patience of the
court and gradually undermine the reputation of the
prosecutor's office. Trials, to be sure, are hard fought
contests where not every remark can be carefully weighed.
But for the government in a criminal case, fairness is more
important than victory. Although we view the evidence as far
more substantial than does our dissenting colleague and have
some (but not blind) faith in corrective instructions, the
government would do well to take this warning seriously.
Affirmed.
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TORRUELLA, Circuit Judge (Dissenting). With all due respect
to my esteemed colleagues in the majority, I must dissent. I do
so reluctantly because although I disagree with their
characterization of the strength of the evidence against Moreno,
see ante at 13, I agree that in all probability the jury verdict
would have been the same sans the breaches committed during the
trial. My reticence, however, is not sufficient to overcome my
perturbation at what I perceive to be the virtual condonation,
with nary but mild admonitions on our part, of repeated
prosecutorial transgressions, almost to the point of a pattern.
See, e.g., United States v. Agudelo, No. 90-1465, 1993 U.S. App.
LEXIS 4970 (1st Cir. March 18, 1993) (admission of improper
testimony); United States v. Williams, 985 F.2d 634 (1st Cir.
1993) (admission of improper evidence); United States v. Smith,
982 F.2d 681 (1st Cir. 1993) (improper argument by prosecutor);
United States v. Hodge-Balwing, 952 F.2d 607, 611 (1st Cir. 1991)
(improper argument by prosecutor). The majority itself points
out similar cases falling within this pattern, but fails to
appreciate the extent of its perniciousness. See ante at 14
(citing Machor, supra, and Giry, supra, as examples of "fierce"
arguments by prosecutors). Compounding this problem is the fact
that Rule 404(b) and the harmless error doctrine have been
converted, not to say subverted, into a wall behind which the
Government apparently can continue ad infinitum to take pot shots
with impunity.
I register my protest because our past cautions, timid as
they were, see, e.g., Agudelo, slip op. at 6 n.7 ("this is not to
forget our complaint . . . about giving the government two bites
at the apple: push for evidence believed to be damning, and then
say it was meaningless"); Williams, slip op. at 8-9 ("to infect
and jeopardize a prosecution with such evidence is unwise and
unjustifiable"), have not only been ignored, but alas, have
probably encouraged this continued conduct. I fear that the
current warning, ante at 15, although somewhat more forceful than
those that have come before, is likely to further erode our
institutional credibility, if the past is any indication of the
future. More importantly, I believe that the prosecutor's
actions in the present case unconstitutionally prejudiced
Moreno's right to a fair trial.
To set the trial in proper perspective, a review of the
facts is appropriate. Three unidentified persons were seen
running from the sound of gunfire; at some point thereafter one
of these persons appeared to pass a one to one-and-one-half foot
long dark object to another person who kept on running with the
unknown object; the passer then stopped running, was arrested (we
know not for what crime at this point), and eventually was
identified as Moreno; a person later identified as Frederick
Hardy, the receiver of the unknown object, was intercepted and
arrested coming from where Moreno was detained; Hardy was seen
throwing away an object, which was later recovered and which
turned out to be a .32 caliber pistol; no other weapon was found
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on or near Hardy, but a search of his suspected route revealed a
loaded, double barrel, sawed off shotgun, hidden in the bushes
along the direct path from where Moreno was arrested; this
shotgun and its ammunition are the weapons with which Moreno is
charged with illegally possessing.
At trial, the prosecutor introduced as Rule 404(b) evidence
against Moreno a third weapon found elsewhere in the possession
of a third individual, Stephen Fern ndes. This weapon was a 9
mm. caliber pistol, as well as 10 casings fired from that weapon
at the scene of the original shooting.
The prosecutor also made improper statements, which fall
into three groups, at different points. First, he linked
appellant to the rampant violence in the community, insisting at
opening argument that "the evidence will show that [the police]
were doing their jobs protecting the community that has been
plagued by violence, senseless violence, shootings and killings."
He continued "[t]hat's why they were there and that's why we're
here today." The prosecutor referred to the officers as members
of an anti-gang unit on four occasions, and instructed the jury
not to "reward" the defendants for discarding weapons. The
prosecutor injected violence at every opportunity, stating, for
example, that "[i]f you're walking down the street with a
baseball bat, it's not illegal to possess it. If you use the
baseball bat to bash in somebody's head, that's illegal," and
that "Mr. Hooker or his wife orhis three kids might come out and
look at the gun and get their heads blown off." In describing
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the shotgun, which had not been fired, the prosecutor argued
"[s]omebody had to move that lever, crack open that barrel and
put those two shotgun shells into the shotgun. Somebody does
that for a reason. Just remember that these three people armed
themselves with three guns." The prosecutor proceeded "[a]ll you
had to do was pull the trigger. Think about going into the
middle of that housing development armed with those weapons
together and firing one of these weapons."
Second, the prosecutor improperly vouched for the government
witnesses, intimating that they possessed some information beyond
the evidence presented. In discussing the "cylindrical object"
that appellant passed on to another individual, the prosecutor
warranted that the police "knew what it was, but they're not
overstating their testimony." He later asserted "[t]hey knew
what the object was. They were going to find it."
Third, the prosecutor urged the jury to disregard
appellant's counsel because defense attorneys "are paid to see
see [sic] things in a different way." Furthermore, the
prosecutor contended at one point that defense counsel was
"talking out of both sides of his mouth." The prosecutor,
discussing a defense argument, explained "I'm not quite sure what
that meant, but I would suggest that a part of it was designed to
divert your attention."
As the majority points out, the prosecution's statement
appealing to the jury's fear of neighborhood violence was
"patently improper" and "outside the bounds of legitimate
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argument and cannot be condoned." Id. at pp. 10-11. "[N]o less
disturbing," finds the majority, is that "even after [being
warned] the prosecutor again departed from the straight and
narrow in his closing." Id. at 12. This would have been
sufficient basis for "reversal as a deterrent," the majority
tells us, only if "this second foray [had been] deliberate." Id.
This observation is irrelevant if the prosecutor's statements
caused harm to defendant, and harm undoubtedly was caused by
these and other statements.
My colleagues place too much faith on the practical value of
the curative instructions given by the trial judge, the second of
which was admittedly "rather oblique" as to the matter
objected.4 Id. at 12; see also United States v. Akinola, No.
92-1587 (1st Cir. Feb. 2, 1993) ("it is the combination of the
trial judge's instructions . . . that would render the
prosecutor's putative violation harmless"). Empirical studies
have established that juries tend to consider relevant evidence
in a case even when it is ordered stricken from the record. See
Reid Hastie, Steven D. Penrod and Nancy Pennington, Inside the
Jury 87, 231 (1983). In fact, juries are even more likely to
consider such evidence if admonished by the court not to consider
it, than if no specific instruction is given. See Saul Kassin
4 The majority indicates that they "are satisfied that the jury got the message to ignore what had just been said." Id. at 12.
I would ask rhetorically what there is in the instruction to cause such reassurance. Certainly nothing in its obliqueness, and I would think, little in its length would commend such a conclusion.
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and Lawrence Wrightsman, The American Jury On Trial:
Psychological Perspectives 108-09 (1988). Even more troublesome
to a criminal defendant in Moreno's position are the studies
indicating that juries tend to forget the source of the
information they remember, and are often unable to recall whether
the source of information came from a witness, or from one of the
attorneys during the opening statement or closing argument. Id.
at 106. These studies also show that juries treat statements
made by counsel in opening statements as fact even though no
evidence is later introduced to support the attorney's assertion.
Id. Harmful impact may also result from improper remarks in an
opening statement, caused by a psychological phenomenon known as
the "primacy effect," which is a tendency to make snap judgments
based on information presented early in the trial. Id. at 134.
Once jurors form a first impression, they often discount or
reject facts that challenge their views, and instead fill their
trial memories in ways that favor their initial reaction. Id. at
134-35; see also N. Anderson, Foundations of Information
Integration Theory 179-81 (1981).
Our cases repeatedly have ignored the practical effect of
improper argument and evidence on the jury by excusing such
impropriety as harmless error and then chiding the prosecutor.
See, e.g., Agudelo, supra; Williams, supra; Hodge-Balwing, 952 at
611 ("we review only 'blockbusters: those errors so shocking that
they seriously affect the fundamental fairness and basic
integrity of the proceedings conducted below'"). The studies
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discussed above clearly demonstrate a common sense conclusion
with empirical data: the prejudicial influence of such argument
and evidence should not be easily disregarded in the manner we
have done, as it flows more deeply than we have assumed.5 The
studies lead to one inescapable conclusion in regard to this
case: there is no way of knowing if the stricken remarks were in
fact not influential in prejudicing the jury in a powerful and
lasting way, and thus tipping the balance against him.
To this prejudice we add the impact on the jury of the so-
called 404(b) evidence. This evidence proffered under the aegis
of this rule consisted of: (1) testimony that pistol shots fired
by unknown persons were heard by police officers prior to
Moreno's arrest; (2) a 9 mm. caliber pistol that was found on the
ground near another individual; and (3) ten spent shell casings
matching that pistol, which were found near area from which
Moreno and three other men were seen running from after the shots
were heard. As noted, supra at 15, the 9 mm. pistol was found in
possession of a third person, Stephen Fern ndes, who was not even
tried together with appellant. All this evidence was allowed as
probative in establishing "other crimes, wrongs or acts," by
5 Thus, the "powerful and contemporaneous instruction" referred to by the majority, ante at 11, was indeed such, but not as
intended. It served to remind the jury "about other violence" and senseless killings. Id.
Indeed, these studies starkly reveal the dilemma that attorney's face in this area of the law. They must choose either to ask for a curative instruction, increasing the impact of the improper argument or evidence, or remain silent, in which case they waive the issue on appeal, see United States v. Tejeda, 974
F.2d 210, 215 (1st Cir. 1992).
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Moreno, with regard to charges that he illegally possessed a
loaded sawed-off shotgun. This is claimed to be evidence
unrelated to Moreno's character or propensity to commit crime and
thus admissible for nebulous "other purposes." Fed. R. Evid.
404(b).
This is clearly improper use of Rule 404(b). The evidence
was not even proof of wrongful acts by Moreno, but, at best,
evidence of other wrongful acts by third persons in Moreno's
presence. Because Rule 404(b) should only be invoked when
prosecutors seek to introduce evidence of prior bad acts
committed by the defendant, it is error to analyze this evidence
under that rule. United States v. Moccia, 681 F.2d 61, 63 (1st
Cir. 1982) (Breyer, C.J.) (Rule 404(b) forbids prosecution from
"asking the jury to infer from the fact that the defendant has
committed a bad act in the past, that he has a bad character and
therefore is more likely to have committed the bad act now
charged") (emphasis added). The proper inquiry is whether the
evidence is relevant, and whether it is more prejudicial than
probative. The correct answer to the first question is no, and
the answer to the second is yes.
At best the evidence shows mere presence during the
commission of other crimes by other persons. It asks the jury to
conclude that appellant somehow was guilty of that crime, and by
extension, guilty of the current crime. Appellant's mere
presence at the scene of that crime, of course, does not
establish appellant's guilt of that crime. See United States v.
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Aponte-Su rez, 905 F.2d 483, 491 (1st Cir.) (mere presence at the
scene of a crime and knowledge that a crime was to be committed
is not proof of guilt), cert. denied, 498 U.S. 990 (1990); see
also Nye & Nissen v. United States, 336 U.S. 613, 619 (1949).
Furthermore, and with all due respect, concluding that persons
present at the scene of a shooting, and thereafter fleeing, are
more likely to be carrying weapons is highly illogical. It is
just as likely that persons fleeing the scene of a shooting will
be either unarmed victims or by-standers, and in fact, it is more
probable that they would have more of an incentive to flee, and
faster, precisely because they were unarmed. Thus, the inference
that it is more likely that appellant is guilty of the felon-in-
possession crime because he was fleeing from the scene of another
crime committed by other persons is insupportable. The evidence
is constitutionally and factually irrelevant.
Even if the evidence was relevant, its probative value pales
in comparison to its prejudicial effect. Any probative value
that the evidence may have stems from extended inferences and
speculation about the probabilities of people carrying weapons.
Inferences and speculation, however, are infected too easily in
this case by the transference of guilt from the shooting of a gun
by a third party to the charged crime of possession, ensuring
that a jury will draw all doubt against appellant. See United
States v. St. Michael's Credit Union, 880 F.2d 579, 602 (1st Cir.
1989) (danger that jury might convict defendant on theory of
guilt by association). When added to the impact of the
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prosecutor's improper argument concerning senseless killings and
community violence, the prejudicial impact becomes manifest. The
majority opinion chooses to ignore the prejudicial effect of this
evidence, concluding that the defense somehow waived any
consideration of the issue.
Lastly, let us return to the trial itself, and consider the
overall impact of these breaches. I have already conceded that
even without the Rule 404(b) evidence, appellant probably would
not withstand a Rule 29 motion. The evidence concerning the
cylindrical object and the shotgun is perfectly valid, and one
can conclude that the charged possession of a shotgun in fact
occurred from it. The conclusion can only be reached through
extended inferences, though, because no witness testified that
they actually saw Moreno with the weapon, but only that he passed
something to someone who was later found nearby the weapon.
Given the prejudice already infused into the trial by the
improper argument and evidence, I do not see how it can be
discounted that the required inferences supporting this
conclusion were not themselves infected. In all likelihood this
prejudice would make the jury more predisposed to draw the
required inferences against appellant, thus tipping the balance
against him.
What we have here is a vulnerable case requiring the jury to
make substantial inferences in order to convict. The prosecution
beefed up its case by clearly improper statements at crucial
stages of the trial, and threw in pseudo 404(b) evidence for good
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measure. Although the defendant did not create this situation,
he is asked to assume all the risks it generates. Somehow this
is not my idea of a fair trial. It contradicts all logic and
practical experience. It is past due that this court send a
clear message regarding the standards that are expected of a
litigator whose motto is that "[t]he United States wins its point
whenever justice is done its citizens in the courts." It is
better that this message be given in this case than in a case of
more societal consequence.
This appellant did not get a just trial. A new one should
be ordered.
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