United States v. Roberts
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Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1933
UNITED STATES,
Appellee,
v.
DANIEL P. ROBERTS,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
____________________
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Keeton, District Judge.
_____________________
William Maselli , with whom Law Offices of William Maselli was
on brief for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, and Jonathan A. Toof,
Assistant United States Attorney, were on brief for appellee.
____________________
July 23, 1997
____________________
Of the District of Massachusetts, sitting by designation.
KEETON, District Judge. A jury convicted defendant-
appellant Daniel Roberts on charges of conspiracy to possess
anabolic steroids with intent to distribute, and possession of
anabolic steroids with intent to distribute, in violation of 21
U.S.C. SS 841(a)(1), 841(b)(1)(D), and 846. Defendant contends on
appeal that (1) four incidents of prosecutorial misconduct during
the closing and rebuttal arguments deprived him of a fair trial;
(2) the district judge's failure to instruct the jury on the
requested defense theory of possession constitutes reversible
error; and (3) the district judge's instructions and re-
instructions on permissible inferences from possession in quantity
were unfairly prejudicial. Concluding that the egregiousness of
the prosecutorial misconduct alone deprived Roberts of a fair
trial, we vacate the convictions and remand for a new trial.
I. BACKGROUND
A. Facts
Since we are concerned with the claim of prosecutorial
misconduct and not with a claim of insufficient evidence, our
description of the facts is not limited to evidence and inferences
most generous to the government. Rather, we state a balanced
description of the evidence in the record before us, to aid in
focusing on whether the impermissible comments of the prosecutor
tainted the proceedings materially. See Arrieta-Agressot v. United
States, 3 F.3d 525, 528 (1st Cir. 1993) (court does not "take the
evidence in the light most favorable to the government" because the
-2-
jury decision for conviction "may itself be tainted by the improper
remarks").
An investigation that led to this prosecution commenced
when a young boy's mother told local police that Robert Tibbetts
had sold steroids to her teenage son. The ensuing investigation
and eventual detention of Tibbetts led, in turn, to defendant
Roberts, as explained more fully below.
At trial Robert Tibbetts, appearing as a witness called
by the government, pursuant to a cooperation agreement, testified
to the events summarized here.
Tibbetts purchased anabolic steroids from Dr. Patterson,
a veterinary doctor in Maine, representing their intended use to be
for draft horses. After Tibbetts had purchased steroids two or
three times each week during 1995, Dr. Patterson cut off Tibbetts'
supply because he was concerned about potentially illicit use.
Tibbetts then began obtaining steroids from a different source --
a Dr. Hussey of North Conway, New Hampshire -- from whom he also
purchased oil-based testosterone every week.
During this time, Daniel Roberts began buying steroids
from Tibbetts. Roberts worked as a personal trainer at different
gyms in the Lewiston-Auburn area. He was certified to advise
clients about nutrition and fitness and was himself a member of a
team of weightlifters. Those of Roberts' clients who testified
said they had no knowledge of Roberts' selling steroids, nor did
they have knowledge of his encouraging the use of steroids. Both
Roberts' girlfriend, Michelle Saba, and Tibbetts testified that
-3-
Roberts owned no large animals to whom the steroids could have been
administered legally.
When Roberts became concerned because a large part of an
order was missing from a North Conway shipment, Roberts and
Tibbetts met to discuss the possibility that Roberts would make the
necessary trips to New Hampshire instead of Tibbetts. Up until
this point, Roberts had been providing between $1000 and $1500 in
cash for the drugs for each trip Tibbetts made. In addition, Dr.
Hussey had begun to express his concern over the quantity of
steroids Tibbetts purchased on such a regular basis. Tibbetts then
told Roberts he would not make any more trips to North Conway.
Instead, Tibbetts suggested that Roberts make the trips and use
Tibbetts' name. Both Dr. Hussey and his secretary confirmed that
someone other than Tibbetts began picking up and paying for the
steroids during the fall of 1995.
Tibbetts having been turned in by a concerned mother, as
stated above, because he allegedly sold steroids to her teenage
son, the investigation of Tibbetts led to the delivery and sale of
steroids from Dr. Hussey's office. Agent Bals of the United States
Drug Enforcement Administration arranged to monitor a transaction
and to detain a person involved, who turned out to be Roberts on
his way home from Dr.
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1933
UNITED STATES,
Appellee,
v.
DANIEL P. ROBERTS,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
____________________
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Keeton, District Judge.
_____________________
William Maselli , with whom Law Offices of William Maselli was
on brief for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, and Jonathan A. Toof,
Assistant United States Attorney, were on brief for appellee.
____________________
July 23, 1997
____________________
Of the District of Massachusetts, sitting by designation.
KEETON, District Judge. A jury convicted defendant-
appellant Daniel Roberts on charges of conspiracy to possess
anabolic steroids with intent to distribute, and possession of
anabolic steroids with intent to distribute, in violation of 21
U.S.C. SS 841(a)(1), 841(b)(1)(D), and 846. Defendant contends on
appeal that (1) four incidents of prosecutorial misconduct during
the closing and rebuttal arguments deprived him of a fair trial;
(2) the district judge's failure to instruct the jury on the
requested defense theory of possession constitutes reversible
error; and (3) the district judge's instructions and re-
instructions on permissible inferences from possession in quantity
were unfairly prejudicial. Concluding that the egregiousness of
the prosecutorial misconduct alone deprived Roberts of a fair
trial, we vacate the convictions and remand for a new trial.
I. BACKGROUND
A. Facts
Since we are concerned with the claim of prosecutorial
misconduct and not with a claim of insufficient evidence, our
description of the facts is not limited to evidence and inferences
most generous to the government. Rather, we state a balanced
description of the evidence in the record before us, to aid in
focusing on whether the impermissible comments of the prosecutor
tainted the proceedings materially. See Arrieta-Agressot v. United
States, 3 F.3d 525, 528 (1st Cir. 1993) (court does not "take the
evidence in the light most favorable to the government" because the
-2-
jury decision for conviction "may itself be tainted by the improper
remarks").
An investigation that led to this prosecution commenced
when a young boy's mother told local police that Robert Tibbetts
had sold steroids to her teenage son. The ensuing investigation
and eventual detention of Tibbetts led, in turn, to defendant
Roberts, as explained more fully below.
At trial Robert Tibbetts, appearing as a witness called
by the government, pursuant to a cooperation agreement, testified
to the events summarized here.
Tibbetts purchased anabolic steroids from Dr. Patterson,
a veterinary doctor in Maine, representing their intended use to be
for draft horses. After Tibbetts had purchased steroids two or
three times each week during 1995, Dr. Patterson cut off Tibbetts'
supply because he was concerned about potentially illicit use.
Tibbetts then began obtaining steroids from a different source --
a Dr. Hussey of North Conway, New Hampshire -- from whom he also
purchased oil-based testosterone every week.
During this time, Daniel Roberts began buying steroids
from Tibbetts. Roberts worked as a personal trainer at different
gyms in the Lewiston-Auburn area. He was certified to advise
clients about nutrition and fitness and was himself a member of a
team of weightlifters. Those of Roberts' clients who testified
said they had no knowledge of Roberts' selling steroids, nor did
they have knowledge of his encouraging the use of steroids. Both
Roberts' girlfriend, Michelle Saba, and Tibbetts testified that
-3-
Roberts owned no large animals to whom the steroids could have been
administered legally.
When Roberts became concerned because a large part of an
order was missing from a North Conway shipment, Roberts and
Tibbetts met to discuss the possibility that Roberts would make the
necessary trips to New Hampshire instead of Tibbetts. Up until
this point, Roberts had been providing between $1000 and $1500 in
cash for the drugs for each trip Tibbetts made. In addition, Dr.
Hussey had begun to express his concern over the quantity of
steroids Tibbetts purchased on such a regular basis. Tibbetts then
told Roberts he would not make any more trips to North Conway.
Instead, Tibbetts suggested that Roberts make the trips and use
Tibbetts' name. Both Dr. Hussey and his secretary confirmed that
someone other than Tibbetts began picking up and paying for the
steroids during the fall of 1995.
Tibbetts having been turned in by a concerned mother, as
stated above, because he allegedly sold steroids to her teenage
son, the investigation of Tibbetts led to the delivery and sale of
steroids from Dr. Hussey's office. Agent Bals of the United States
Drug Enforcement Administration arranged to monitor a transaction
and to detain a person involved, who turned out to be Roberts on
his way home from Dr. Hussey's office in New Hampshire. Roberts'
car was stopped in Maine by Maine law enforcement authorities.
Roberts handed over a large box of steroids, telling the Maine law
enforcement officers that the steroids were for Roberts' own
personal use.
-4-
At trial, Michelle Saba, Roberts' girlfriend and a
reluctant witness, indicated that the defendant was obsessed with
weight lifting and with increasing his weight. He had grown from
130 pounds, when she met him several years ago, to well over 200
pounds. Saba further testified that Roberts used steroids daily,
sometimes twice a day, and that their desperate financial situation
was due to his addiction.
Russell Barlow, a high school teacher and friend of
Roberts, testified that becoming larger and stronger was an
obsession for Roberts and that Roberts took steroids for that
reason. Barlow further testified that he (Barlow) operated a
personal training business, and it was his experience that abusers
of steroids would often hoard the drug in anticipation of a time
when it would be unavailable. Apparently, weight lifters were able
to procure steroids from the black market and from veterinarians,
but since black market steroids were frequently impure, weight
lifters preferred drugs provided by a veterinarian.
Agent Bals testified that a lively market for steroids
existed in the gyms and among participants in various sports.
Barlow stated that selling steroids could be very profitable,
especially since the shelf life of many steroids was as long as
five years.
The only evidence linking Roberts to the sale of
steroids, however, other than his being in possession of large
quantities, was the testimony at trial of Tibbetts, who said that
Roberts had once stated that he had lost money selling steroids in
-5-
Massachusetts. Telephone records in evidence show that Roberts
made frequent calls to telephones located in Massachusetts.
B. Indictment, Conviction, and Sentence
In a two-count indictment returned on February 15, 1996,
Roberts was charged with (1) conspiracy to possess with intent to
distribute anabolic steroids and (2) possession with intent to
distribute anabolic steroids in violation of 21 U.S.C. SS 841(a)
(1), 841(b)(1)(D) and 846.
On April 25, 1996, the jury trial began in the United
States District Court for the District of Maine. On April 26,
1996, the jury returned verdicts of guilty on both counts.
The district judge sentenced Roberts to concurrent
sentences of sixteen months in prison for each of the two counts,
to be followed by two concurrent three-year terms of supervised
release. Following imposition of sentence, Roberts filed this
timely appeal.
II. PROSECUTORIAL MISCONDUCT
A. Trial Transcript
We recite verbatim substantial parts of the 22-minute
summation and 10-minute rebuttal of the prosecutor.
MR. TOOF: (10:18 AM) Ladies and
gentlemen of the jury, after I get done
arguing, Mr. Maselli will have an
opportunity to address you and I will then
have a brief opportunity, when he is done,
for rebuttal.
. . .
-6-
As I go through my review of the
evidence I will point out several areas in
which you could be misled from your oath
and obligation as jurors in this case. I
want to remind you, and I remind you again
and again and again that this is not a
popularity contest, this is not [a] what
should be done contest, this is a trial
that defines justice based on your
objective evaluation of the facts in this
case. In other words, what has been shown
to you, what has not been shown to you and
what you reasonably infer from the
evidence that has been brought before you.
. . .
The defense counsel spent a great deal
of time attempting to show you that Mr.
Tibbetts is not the kind of man the
federal government wants you to believe.
[A q]uestion was asked relative to his
suggest[ed] sexual inclinations, that he
used young boys not only for business
purposes but to assist him in the
distribution of anabolic steroids and what
have you.
There is not a fact, there is not one
fact that has been established in this
case that Mr. Tibbetts did any of these
things.
However, if you accept the questions as
facts you could conclude what is the
government doing dealing with him, a guy
like this. Let me tell you that every
day, every courtroom in this country the
federal government, the state government,
uses people like Robert Tibbetts and the
reason for it is because Tibbetts elected
to plead guilty, and was testifying
yesterday to save his hide.
As Mr. Maselli suggests, either
Tibbetts was a trained monkey doing
whatever he could do to satisfy the
government masters or he was telling the
truth.
Do you think this is the first time
-7-
anything like this happened? Of course
not, that is why we have things like plea
agreements. If you want to go home
tonight in time to watch the early news,
in time for dinner, you can decide this
case very quickly but if you do you will
not have considered all of the evidence.
I ask you that you consider the Tibbetts
testimony in view of the agreement. These
are the terms and conditions which control
the government's entire relationship with
this man, nothing more, nothing less. I
ask you to read paragraphs 5, 4, 5 and 10.
All right. Once you conclude that, I
believe you will believe his testimony was
controlled by this evidence, nothing more
and nothing less. You should weigh his
credibility in view of this agreement.
This is all we have to gain, and this is
all we have to lose from his testimony
before you.
. . .
Tibbetts told you that Drown provided
the money, Tibbetts made the order,
Tibbetts went to the doctor' office in
North Conway and obtained the steroids[,]
provided them to Drown so that he could do
with them whatever he wanted.
This relationship went on for two or
three orders from Dr. Hussey until only
half an order came [back to Drown]. Drown
came over to Tibbetts' house and wanted to
know where the rest of the order was.
During the conversation the defendant,
Danny Roberts, said something like, "I'll
break your bones, those are my steroids."
It was brought out throughout the course
of trial that the reason that Tibbetts was
afraid of the problems, is that Tibbetts
was aware that Roberts was the treasurer,
I believe, of the Sarasins Motorcycle.
That fact should not qualify you in any
way in reaching your verdict because if
you do, you will have decided the case for
the wrong reasons, whether he is a member
of a motorcycle gang or whatever, has
nothing to do with the facts of this case.
All right?
-8-
This is not a personality contest.
. . .
Agent Bals [...] and the local police
department got involved in the case on or
about January 28th or 29th they went to
Dr. Hussey's office, and they went there
because back on the 23rd, Dr. Hussey
received a Federal Express package
addressed to him from the defendant.
Inside was a check for almost $10,000 from
Robert Tibbetts to Dr. Hussey and a note
asking for some thousand dollars worth of
steroids. Okay?
He did a controlled dilute, if you
will, where Roberts came to pick up
steroids, and the agents waited to take
possession, they followed him down the
road back to Maine and then arrested him.
All right.
That is essentially what the case is
all about.
. . .
How many years' supply did these two
guys obtain in 3 1/2 months? I suggest to
you that even under a conservative
estimate, even if Ms. Saba hedged a
little bit and in fact the defendant was
not using two bottles, he was using four
bottles, he bought enough steroids to last
him until the year 2000. Ladies and
gentlemen, that fact, not that inference
but that fact, that fact should lead you
to a conclusion, that conclusion is that
Roberts did not use all this supply
himself. I'm not beginning to contest the
possibility that he didn't use some of it
because he did. He is an anabolic junkie.
But he also dealt some too. He didn't
deal it to Hebert and Tehan, to Sandra
Roy, the lady that gave him a ride to
North Conway, not knowing where she was
going, and certainly not to Michelle Saba.
He dealt it to those people obsessed with
anabolic steroids and who are looking for
a good source of supply.
You know, the thing in this case is
-9-
that the defendant has no obligation to
testify and you should take that fact into
consideration in no way whatsoever. But
with respect to the rest of the case the
defendant has the same responsibility and
that is to present a compelling case, if
they are to go forward. We know the
defendant deals with a large number of
people, according to Mr. Barlow, thousands
of people involved with weight lifting and
anabolic steroids. Who did you see, 2 of
50 people that he trains. Where is the
team? Russell Barlow? Is that it? Where
did the steroids go? You know where they
went to. Thank you. (10:40 AM).
(Excerpts from Transcript of Jury Trial, April 25-26, 1996, at 228-
38 (emphasis added)).
We quote a part of the defense summation, for context.
MR. MASELLI: Thank you, your Honor.
May it please the Court. Ladies and
gentlemen of the jury, Mr. Toof sat down
rather quickly and I guess this case is to
be based on conjecture, guessing as to
what the evidence is and what happened.
Then I guess it should take 5 or 10
minutes and you can get home, not just for
dinner but you can get home for lunch as
well. If you want to base this case on
guessing as to what the evidence is, it is
going to be very easy.
. . .
You know, Mr. Toof tells you about
Tibbetts, and I will talk about Tibbetts
as we go along here, about Tibbetts, he
signed an agreement to tell the truth with
the government, and so he wants you to
believe that he is coming here to tell the
truth. He never tells the truth to
anybody else, and he sees people left and
right but he is telling the truth now.
. . .
Mr. Toof's comments about Daniel
Roberts' association is like Shakespeare's
Mark Anthony, talking about how Brutus is
an honorable man. He wants you to draw an
-10-
honest conclusion when he is telling you
that Mr. Roberts is in a gang, and not to
think about it. If he is not in a gang,
he belongs to a club.
Second of all, you don't need to guess
or speculate whether or not Danny Roberts
is an honorable man, you've heard plenty
of evidence and you know that he is.
. . .
So in closing we ask you to keep in
mind that it is not Daniel Roberts' burden
or obligation to prove that he is
innocent.
How do you prove that you are innocent
other than pleading not guilty? Getting
up and saying, "I didn't do it." It is not
his burden to convince you of his
innocence. It is the burden on the
government to establish guilt beyond a
reasonable doubt and the specific charges
that they brought against him and it is
only by holding the prosecution to that
burden of proof that justice is done.
. . .
Justice is holding the government to
the burden of proof that the law places
upon them to protect every single one of
us.
. . .
You know why Dan Roberts was getting
the steroids. The prosecution is asking
you to come to another conclusion based
upon guess work.
. . .
Daniel Roberts is not guilty of these
offenses. We ask you to return the
verdict of not guilty on both.
Thank you very much. (11:10 AM).
(Id. at 238-41, 253-55 (emphasis added)).
Following are excerpts from the 10-minute rebuttal of the
-11-
prosecutor.
MR. TOOF: Thank you, your Honor.
Ladies and gentlemen, a strange twist in
defense counsel's argument. He closed out
by arguing lack of evidence when he spent
the lion's share in telling you that you
can't believe a guy like Robert Tibbetts.
. . .
This is not Tibbetts' trial. His day
in court may or may not come because of
other cases he has. I ask again that you
review his testimony in conjunction and
ask yourself this question: Would you
believe what he had to tell you if you
knew that he didn't tell you the truth and
faces the consequences set forth in that
plea agreement?
That is the issue.
. . .
Now, if you're going to lie, if you're
going to pin Dan Roberts with something,
the clear inference is, from defense
counsel, this is just that Tibbetts was
going to come in here without assistance
and our sanction and purge [sic] himself.
If you're going to do that, you do a much
better job.... If we are going to prepare
our witnesses to lie, we would do a much
better job than that. Enough said about
Tibbetts.
. . .
Now, the essence of the defendant's
closing was that you should acquit because
of insufficient evidence.
The essence of the defendant's argument
was that you can't allow the government to
use this kind of witness to prove this
kind of case.
All I can tell you, and repeat to you
again, that is not the basis upon which
you can decide issues in this case, you
have to look dispassionately at the
-12-
evidence and draw reasonable inferences
that should be drawn from that evidence.
. . .
Mr. Maselli says, you know, the
government with all its power, resources
and all of its whatever, there is no
evidence of one sale. And you are right,
there is no evidence of a search of
defendant's house; and you are right, that
argument is one, an invitation for a cop
out. You go back to the jury room and
say, they could have given us more. But
you have to consider all of the evidence,
and if I'm wrong Mr. Maselli will probably
stand up and let us know. He knows as
well as I do there are extremely sound
reasons why the government cannot bring in
people to take the stand and say they
bought anabolic steroids from Tibbetts or
Roberts, that I was involved in the
conspiracy equally as the defendant. That
is a fact, and that is the law. Why
didn't we search the house in Poland
Springs? Because that is an [abuse of]
power of the government. There is no
evidence of the seizure of those
anabolics.
MR. MASELLI: I object, he is speaking
of facts outside of the evidence.
THE COURT: Overruled, he may continue.
MR. TOOF: There is no evidence based
upon what you heard during this trial that
the government had sufficient cause to go
in Michelle Saba and Dan Roberts' house to
go in and search for steroids.
. . .
Now, there are too many steroids here
for personal use and the law tells you
there is a reasonable inference, that you
can reasonably conclude that the steroids
were being distributed.
. . .
THE COURT: Mr. Toof, you have only 10
-13-
minutes in rebuttal.
MR. TOOF: Thank you. Sandra Roy
didn't know they were going to North
Conway. Didn't know. The evidence is
sufficient for you to return a verdict of
guilty. Thank you very much. (11:18 AM).
(Id. at 255-260 (emphasis added)).
B. The Standard for Determining Prosecutorial Misconduct
Applicable to This Case
On appeal, Roberts raises several issues of prosecutorial
misconduct as to which his counsel did not make timely objections
during the proceedings below. We first consider whether he has
waived or otherwise lost his right of appeal with regard to those
claims of error. See, e.g., United States v. Taylor, 54 F.3d 967,
972 (1st Cir. 1995); United States v. Griffin, 818 F.2d 97, 100
(1st Cir.), cert. denied, 484 U.S. 844 (1987).
Rights to have a claim of error heard on the merits are
sometimes lost by failure to object in the trial court. See United
States v. Olano, 507 U.S. 725, 732-34 (1993). "In general, the law
ministers to the vigilant, not to those who sleep upon perceptible
rights." Taylor, 54 F.3d at 972.
Requiring parties to raise contemporaneous objections
serves several important functions. It gives the trial court the
first opportunity to correct potential injustice by invoking an
immediate cure and forestalling future harm. See Griffin, 818 F.2d
at 100 (finding that contemporaneous objections give "both the
court and the party's opponent fair warning and a timely
opportunity to acknowledge bevues and correct them so that cases
-14-
can be decided squarely on merit"). Ordinarily, the trial judge is
in the best position to assess the damage at the time done. Id.
Also, the raise-or-lose rule "prevents sandbagging" and inhibits
strategic or tactical silences that quietly nurture the seed of
trial error for assertion on appeal, should all else fail. Taylor,
54 F.3d at 972. In short, adhering to the raise-or-lose rule makes
a positive contribution to "the balanced and orderly functioning of
our adversarial system of justice." Griffin, 818 F.2d at 99-100.
Invariable application of the raise-or-lose rule,
however, would be "out of harmony with ... the rules of fundamental
justice." Olano, 507 U.S. at 732 (1993) (quoting Hormel v.
Helvering, 312 U.S. 552, 557 (1941)) (internal quotation marks
omitted). Provisions of a Federal Rule of Criminal Procedure are
on point:
(a) Harmless Error. Any error, defect,
irregularity or variance which does not
affect substantial rights shall be
disregarded.
(b) Plain Error. Plain error or defects
affecting substantial rights may be
noticed although they were not brought to
the attention of the court.
Fed. R. Crim. P. 52.
This Circuit has consistently held, in applying the law
of preclusion as laid down in Olano, 507 U.S. at 733-34, and United
States v. Young, 470 U.S. 1, 15 (1985) (plain-error exception is to
be used sparingly, solely to avoid miscarriage of justice), that
errors not objected to at trial will be reviewed by the appellate
court only when they are "plain" and undermine the fundamental
fairness of the trial. See, e.g., United States v. Sullivan, 85
-15-
F.3d 743, 748 (1st Cir. 1996); United States v. Luciano-Mosquera,
63 F.3d 1142, 1156 (1st Cir. 1995), cert. denied , --- U.S. ---, 116
S. Ct. 1879 (1996); Taylor, 54 F.3d at 972; United States v.
Romero, 32 F.3d 641, 651 (1st Cir. 1994); United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United States v.
Mejia-Lozano, 829 F.2d 268, 272-73 (1st Cir. 1987).
Plain error review is ordinarily limited to
"blockbusters" and does not "consider the ordinary backfires --
whether or not harmful to a litigant's cause -- which may mar a
trial record." Griffin, 818 F.2d at 100. The plain error hurdle
is high. See Hunnewell, 891 F.2d at 956. Exceptions to the raise-
or-lose rule are reserved for the redress of those errors that
"seriously affect the fairness, integrity or public reputation of
the judicial proceedings." Young, 470 U.S. at 14 (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936) (internal quotation
marks omitted)).
Among the strictures that channel appellate discretion in
plain error review are three of commonly recognized significance:
the appellant must show (1) the occurrence of an error; (2) that
the error is obvious or clear under current law; and (3) that the
error substantially and adversely affects the rights of the
appellant. See Olano, 507 U.S. at 732-34; United States v. Laboy-
Delgado, 84 F.3d 22, 31 (1st Cir. 1996); Romero, 32 F.3d at 651.
In order to discern the severity of the error and its weight in
plain-error analysis, a court must evaluate the error against the
entire record. See Griffin, 818 F.2d at 100. See also Young, 470
-16-
U.S. at 11-12; Laboy-Delgado, 84 F.3d at 29; United States v.
McMahon, 938 F.2d 1501, 1505 (1st Cir. 1991).
C. Application of the Standard
It is axiomatic that the defendant's right against self-
incrimination, as protected by the Fifth Amendment, forbids the
prosecution from commenting on an accused's failure to take the
stand and testify on his own behalf. See Griffin v. California,
380 U.S. 609, 613 (1965).
In the present case, in fairness to the prosecution, we
must take account of the use by defense counsel of a permissible
defense strategy with respect to a "theory of the case." A
defendant is guaranteed an opportunity to advance a "theory of the
case" from the defense perspective. See United States v. Rivera-
Santiago, 107 F.3d 960, 967 (1st Cir. 1997) ("The defendants were
entitled to have their theory of the case, as developed through
their evidence, presented to the jury on an equal footing with the
government's theory of the case."). When a defendant advances a
"theory of the case," however, this opens the door to an
appropriate response by the prosecution, commenting on the "quality
of his ... witnesses or ... attacking the weak evidentiary
foundation on which the defendant's theory of the case rested."
United States v. Savarese, 649 F.2d 83, 87 (1st Cir. 1981). In
Savarese, this Circuit recognized that the government, in its
response, has some leeway to comment on the defendant's failure to
produce evidence supporting the defendant's stated theory. Id.
-17-
The door, however, is not open to the prosecutor's using such an
occasion to comment, even indirectly, on a defendant's failure to
testify. E.g., United States v. Glantz, 810 F.2d 316, 322 (1st
Cir. 1987). The applicable standard is
whether, in the circumstances of the
particular case, the language used was
manifestly intended or was of such
character that the jury would naturally
and necessarily take it to be a comment on
the failure of the accused to testify.
Id. (internal quotation marks omitted). Applying this standard, we
conclude that the prosecutor in this case impermissibly entered
upon forbidden terrain. See also United States v. Hardy, 37 F.3d
753, 757 (1st Cir. 1994) (prosecutorial argument that defendants
were "still running and hiding"); United States v. Skandier, 758
F.2d 43, 45 (1st Cir. 1985) (finding prosecutor's question during
closing as to how defense counsel would explain identified events
that occurred, in a case where the defendant did not take the
stand, violative of the Griffin rule).
In the present case, the prosecutor violated both the
rule against commenting on the defendant's failure to testify and
the rule against telling the jury that the defendant has a burden
of proving his innocence. The prosecutor at intervals throughout
his original summation and his rebuttal made comments that
supported a theme, explicitly stated at one point in the remark
that, when a defendant does "go forward" to offer evidence, "the
defendant has the same responsibility [as the government] and that
is to present a compelling case." (Tr. at 237.) See the
emphasized passages in quotations from the record, in Part II.A,
-18-
above.
In some circumstances, contemporaneous curative
instructions have been determined to be sufficient to correct an
obscure reference to one or the other of these two basic rules that
the prosecutor violated in this case. The offending remarks in this
case, however, were not obscure, and curative instructions were
neither requested nor given.
Given the particular facts of this case, the
prosecutorial excesses identified above were alone too egregious
for this conviction to stand. But there is more. The prosecutor
alluded in his closing argument to evidence not in the record. He
told the jury:
It was brought out throughout the course
of the trial that the reason that Tibbetts
was afraid of the problems, is that
Tibbetts was aware that Roberts was the
treasurer, I believe, of the Sarasins
Motorcycle. That fact should not qualify
you in any way in reaching your verdict
because if you do, you will have decided
the case for the wrong reasons, whether he
is a member of a motorcycle gang or
whatever, has nothing to do with the facts
of this case.
(Tr. at 233.) The rhetorical style of this comment is like that of
the prosecutor's saying to the jury, "the defendant has no
obligation to testify and you should take that fact into
consideration in no way whatsoever" (Tr. at 239), following
immediately with an assertion that is at least seriously misleading
if not worse: "But with respect to the rest of the case the
defendant has the same responsibility and that is to present a
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compelling case, if they are to go forward." ( Id.) In all of
these instances, neither the prosecutor's assertion of belief that
the proposition was legally valid nor the context of its use by the
prosecutor insulate it from judicial scrutiny. See United States
v. Manning, 23 F.3d 570, 574 (1st Cir. 1994); Arrieta-Agressot, 3
F.3d at 529 (finding that inflammatory arguments "excite the jury,
invite a partisan response, and distract its attention from the
only issue properly presented in the case" (emphasis in original)).
In context, the jury, quite reasonably, could have interpreted the
prosecutor's comments in this case as rhetorical flourishes meant
to invite them to do just what the introductory comments literally
said they should not do. Why else would the prosecutor be saying
anything at all about a forbidden subject matter?
The record before this court on appeal contains no
evidence of Roberts' involvement in any gang. Protestations before
this Court that the prosecutor was merely taking care to
demonstrate an intention to be fair ring hollow. Being fair in
fact is commendable. But parading an appearance of fairness by
calling attention to things not to be considered by the jury is a
dubious tactic in any setting. It is certainly not permissible
when the way it is carried through -- by pointing out the
prohibited comments in order to warn the jury of their forbidden
nature -- tends to implant in the minds of jurors the very things
forbidden, by saying they are things the jury must think about in
order to remember not to think about them.
We do not lightly excuse the lack of contemporaneous
-20-
objections. But, at times, the judge must intervene. In our
judgment, these instances of prosecutorial misconduct, in
combination, undermined the fundamental fairness of the trial and
require us, in the interest of justice, to wipe the slate clean.
Having determined that these instances of prosecutorial
misconduct require that the conviction be vacated, we do not
address other issues that arose in the trial but are not likely to
arise in any new trial of this case.
III. PROSECUTORIAL ARGUMENT ABOUT PROBABLE CAUSE
The prosecutorial argument about probable cause (quoted
in Part II.A above) exceeded proper bounds. We address the matter
only briefly, because this issue is unlikely to arise again in a
new trial.
The prosecutorial argument on this subject is defended on
appeal on the ground that it was a fair response to defendant's
closing argument. The defense summation included an argument to
the jury that no incriminating evidence would have been found had
the government searched defendant's living quarters because no such
incriminating evidence existed. We assume, dubitante, that this
was a permissible defense argument. In any event, the prosecutor
did not object and the district judge did not intervene.
The response by the prosecutor to the defendant's
argument was, nevertheless, not permissible. First, a prosecutor
cannot escape the law's prohibitions against arguments on matters
not properly to be considered by the jury in a criminal case by
-21-
deliberately withholding an objection to an objectionable defense
argument and arguing that the defense opened the door. Second,
even if we assume that the defense argument was permissible and did
"open the door" to a rebuttal argument by the prosecutor, the scope
of a permitted response is not unlimited. Here, the prosecutor's
response made assertions of fact about conduct and events that were
not supported by any evidence in the record and added assertions of
law that were not entirely accurate. See Part II.A above. Thus,
the response was out of bounds.
We say no more on this subject because it is unlikely
that this issue will arise in a new trial.
IV. JURY INSTRUCTIONS
The appellant raises additional issues regarding the
court's instructions to the jury. We address only two such issues
because others are unlikely to arise again in a new trial. First,
the district court instructed and reinstructed on the jury's
drawing an inference of intent to distribute, founded on evidence
about quantity of steroids amassed by the defendant. Second, the
district court declined to give the requested instructions as
framed by the defendant regarding an inference or presumption of
the legality of possession, based on evidence of procurement from
a licensed provider. For the reasons stated below, we conclude
that appellant's objections lack merit.
"The challenged instruction is reviewed for abuse of
discretion to determine whether the charge, taken as a whole fairly
-22-
and adequately submit[s] the issues in the case to the jury."
United States v. Rose, 104 F.3d 1408, 1412 (1st Cir. 1997)
(citations omitted) (internal quotation marks omitted). See also
United States v. Mitchell, 85 F.3d 800 (1st Cir. 1996).
We conclude that the district court's instructions and
reinstructions on permissible inferences were not an abuse of
discretion. On the contrary, the instructions and subsequent
reinstructions on an inference from the quantity of drugs possessed
were consistent with a large body of precedent. See Rose, 104 F.3d
at 1413. Specifically with regard to drug possession and intent to
distribute, this Circuit has recognized that possession of large
quantities of drugs permits the inference that the drugs are for
distribution and not personal use. See, e.g., United States v
Echeverri, 982 F.2d 675, 678 (1st Cir. 1993); United States v.
Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992); United States
v. Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).
In this case, the trial judge gave somewhat more emphasis
than is usually given to one factor by saying that "it may be
unlikely that an individual in possession of a large quantity of
anabolic steroids" intends them "for his own use." The relatively
isolated placement of this remark in a reinstruction given in
response to a jury request added to the emphasis. The charge to
the jury must nevertheless be taken as a whole. See United States
v. Boylan, 898 F.2d 230, 244 (1st Cir. 1990); United States v.
Griffin, 818 F.2d 97, 100 (1st Cir. 1987); see also United States
v. Acosta, 763 F.2d 671, 677 (5th Cir. 1985) (finding it proper for
-23-
a trial judge to limit reinstruction to the specific request made
by a jury). Read in its entirety, the court's instructions explain
the applicable law appropriately and without misleading the jury.
See United States v. Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995).
The fact that one part of the instructions was repeated in response
to the jury's written request does not change our assessment that
the instructions taken as a whole were a fair and correct statement
of law. See Rose, 104 F.3d at 1416. See also United States v.
Ladd, 885 F.2d 954, 959 (1st Cir. 1989); Acosta, 763 F.2d at 677-
78.
As to the issue regarding the denial of the defendant's
request for instructions based upon 21 U.S.C. S 844(a), we perceive
no error on the part of the court. In relevant part, the statute
provides that "it shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless such
substance was obtained directly, or pursuant to a valid
prescription..." 21 U.S.C. S 844(a). The defendant's request was
flawed in that it would have placed in the mouth of the trial judge
an implied if not express statement that it was an undisputed fact
that Roberts obtained the steroids pursuant to a valid
prescription. It is true, without dispute in this record, that
Roberts obtained the prescription from a veterinarian licensed to
dispense steroids, and that the prescription was strictly for
animal use, not for human consumption. But no evidence in the
record even tends to prove that Roberts meant the steroids for
animal use. A defense request that the court give an instruction
-24-
containing an implicit assumption of the truth of his contention,
unsupported by evidence, was thus a flawed request. The trial
judge did not err in declining to give this requested instruction.
See United States v. Silvestri, 790 F.2d 186, 193 (1st Cir. 1986)
(finding that a court need not instruct a jury on a defense theory
if there is no supporting evidence in the record).
V. SUFFICIENCY OF THE EVIDENCE
The beyond-reasonable-doubt burden applies to "every
element" of each offense charged but neither to all the subsidiary
inferences nor to "every hypothesis consistent with the defendant's
innocence." United States v. Spinney, 65 F.3d 231, 234 (1st Cir.
1995).
Although the strength of the evidence proffered against
Roberts was less than overwhelming, after considering the record in
full, we conclude that the evidence was sufficient for a reasonable
jury to find beyond reasonable doubt every element of the offenses
charged in the two counts of the indictment. We conclude that the
defendant's request for a judgment of acquittal must be denied.
CONCLUSION
For the reasons explained in this opinion, it is ORDERED:
The judgment convicting Daniel Roberts of the charges
stated in the two counts of the indictment is VACATED. The case is
REMANDED for new trial. Costs are awarded to the appellant.
-25-
United States v. Roberts, (1st Cir. 1997).
United States v. Roberts (United States v. Roberts) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
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