United States v. Smith

• Court: Court of Appeals for the First Circuit
• Decided: January 5, 1993
• Docket: 92-1612
• Status: Published

Opinion

USCA1 Opinion

January 5, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________
                                 ____________________

        No. 92-1612
        No. 92-1612

                              UNITED STATES OF AMERICA,
                              UNITED STATES OF AMERICA,

                                      Appellee,
                                      Appellee,

                                          v.
                                          v.

                                    JOSEPH SMITH,
                                    JOSEPH SMITH,

                                Defendant, Appellant.
                                Defendant, Appellant.

                                 ____________________
                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND
                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________
                                 ____________________

                                        Before
                                        Before

                                Selya, Cyr and Boudin,
                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   Circuit Judges.
                                   ______________

                                 ____________________
                                 ____________________

Ernest Barone for appellant.
             Ernest Barone for appellant.
             _____________
             Margaret E.  Curran, Assistant United States  Attorney, with whom
             Margaret E.  Curran, Assistant United States  Attorney, with whom
             ___________________
        Lincoln C.  Almond, United  States Attorney, and  Lawrence D.  Gaynor,
        Lincoln C.  Almond, United  States Attorney, and  Lawrence D.  Gaynor,
        __________________                                ___________________
        Assistant United States Attorney, were on brief for appellee.
        Assistant United States Attorney, were on brief for appellee.

____________________
                                 ____________________

____________________
                                 ____________________

CYR, Circuit Judge.  Defendant Joseph Smith appeals his
                    CYR, Circuit Judge
                         _____________

          conviction for  possessing a firearm after  having been convicted

          of a felony, in violation of 18 U.S.C.   922(g)(1), claiming that

          the government's closing argument deprived  him of a fair  trial.

          We affirm.

I
                                          I

                                      BACKGROUND
                                      BACKGROUND
                                      __________

The following facts are undisputed.  On August 4, 1991,

          Patrolman Robert Brown, Jr.,  responded to a reported disturbance

          at the  Hot Club in Providence, Rhode Island.  After assisting in

          resolving  the dispute, Officer Brown  was told by  a patron that

          another  disturbance had broken out  between two men  in a nearby

          parking  lot.   As  Brown approached  the  parking lot,  a  woman

          standing  near him  screamed:   "That  man has  a gun!"   In  the

          direction indicated by the woman, the officer saw appellant Smith

          standing alone, and other people running away from Smith.

                    The officer  approached appellant and told  him to drop

          the  gun.  Smith held out his  palms, which were empty, and said,

          "I ain't  got no gun," then  turned and ran.   Officer Brown gave

          chase  and  radioed for  assistance.    Following a  two-to-three

          minute chase,  covering one-quarter  to one-half mile,  Smith was

          apprehended;  an  unloaded  .25  caliber  automatic  handgun  was

          removed from  his waistband.   Appellant's sole defense  at trial

          wasthathispossessionofthe firearmwasjustifiedinthe circumstances.

According  to his  own  testimony,  appellant had  been

          standing outside the  club when  another man said  to him:   "Hey

          Joe, I've got your f'ing girlfriend."  Turning  around, appellant

          saw a  man,  whom  he identified  as  George  Sacco,  restraining

          appellant's girlfriend, Deirdre Machado, and holding a gun to her

          side.  Appellant testified that he approached Sacco, who tripped,

          and, after they scuffled,  appellant grabbed the gun  from Sacco.

          Appellant  testified that it was  Machado who yelled:   "That man

          has a  gun," and  that Machado  had meant that  Sacco had  a gun.

          Appellant admitted at  trial that he had denied having a gun when

          asked by Officer Brown, and had started  to run.  Deirdre Machado

          essentially  corroborated  appellant's  version  of  the  events.

          Officer  Brown,  on   the  other  hand,  testified  that  he  was

          acquainted  with Machado and  that she was not  the woman who had

          yelled to him that night.

II
                                          II

                                      DISCUSSION
                                      DISCUSSION
                                      __________

Appellant claims that the government's closing argument

          deprived  him of a fair  trial by disparaging  the credibility of

          the witnesses  for  the defense  and  infringing upon  the  fact-

          finding function reserved to the jury.  As there was no objection

          at trial,  we review for plain error, United States v. Grant, 971
                                                _____________    _____

          F.2d  799,  810  (1st Cir.  1992)  (en  banc);  United States  v.
                                                          _____________

          Nickens, 955  F.2d 112, 120 (1st Cir.),  cert. denied, 113 S. Ct.
          _______                                  _____ ______

          108  (1992),  which  means  we  must  evaluate  the  prosecutor's

                                          3

statements in light of the entire record, Grant, 971 F.2d at 810,
                                                    _____

          and  may  overturn the  jury  verdict  only if  the  government's

          closing  argument "so poisoned the  well" that it  is likely that

          the verdict  was affected.   United  States v. Mejia-Lozano,  829
                                       ______________    ____________

          F.2d  268, 274 (1st  Cir. 1987); United  States v. Panet-Collazo,
                                           ______________    _____________

          960  F.2d 256,  260  (1st Cir.),  cert.  denied, 113  S. Ct.  220
                                            _____  ______

          (1992).  We discern no plain error.

                    According to appellant, the prosecutor's  statements in

          closing  argument     that  Sacco did  not  exist, appellant  and

          Machado  were  lying,  and  appellant was  guilty      improperly

          implied  that  the  prosecutor  possessed  knowledge  beyond  the

          purview  of the evidence and improperly  invoked the authority of

          his  office to bolster his  interpretation of the  evidence.  The

          crux  of appellant's claim  is that  his and  Machado's testimony

          concerning George Sacco's role was uncontradicted and, therefore,

          there  was  no evidence  on which  to predicate  the prosecutor's
                         ________

          contention  that he and Machado were lying; accordingly, were the

          jury to credit their testimony,  there was sufficient evidence to

          acquit on the justification defense.

                    Although  it is  plainly improper  for a  prosecutor to

          imply  reliance on  knowledge  or evidence  not available  to the

          jury, United States v. Cain, 544 F.2d 1113, 1116 (1st Cir. 1976);
                _____________    ____

          Patriarca  v. United States, 402  F.2d 314, 321  (1st Cir. 1968),
          _________     _____________

          cert.  denied, 393 U.S. 1022 (1969), there was no such intimation
          _____  ______

          in this case.  Rather,  considered in the context of the  closing

          argument  as a  whole, the  comments cited  by appellant     that

4

there was no Sacco and that Machado belatedly concocted the story

          to prevent appellant from being convicted    suggested inferences

          the  jury  might draw  from the  evidence,1  a proper  subject of

          comment  by  the prosecutor.    The  government  may  attempt  to

          persuade the jury to draw suggested inferences unfavorable to the

          defense,  as long  as  the prosecutor's  own  opinion as  to  the
                                                   ___  _______

          witness' credibility is not urged on the jury.  See, e.g., United
                                                          ___  ____  ______

          States v. Mount, 896 F.2d 612, 625 (1st Cir. 1990).
          ______    _____

                    During  closing argument,  the prosecutor  reminded the

          jury that  Officer Brown  had testified that     at the  time the

          unidentified woman screamed:  "That man has  a gun!"    Brown saw

          no  one else near the  scene, except appellant  and other persons

          running from appellant.  The prosecutor further reminded the jury
                  ____ _________

          that Officer Brown had testified that the  unidentified woman was

          not Deirdre  Machado.  Finally, the prosecutor noted that Machado

          admitted at trial  that she had never before told  the police, or

____________________

               1These comments were as follows:

                    This  business about  Sacco  is a  complete fabri-
               cation.  That's what the evidence shows.
                        ______ ____ ___ ________ _____
               . . . .
                    Does  that  sound  like  someone who's  worthy  of
               belief to you?  Of course not.  She [Machado] never did
               those  things, ladies and gentlemen.  She never filed a
               complaint against  Sacco because  Sacco never  did any-
               thing.  There was  no Sacco.  It's a  convenient story.
               It's a complete fabrication.   She never tried to  help
               him out  [by filing  a complaint] because  he's guilty.
               He  didn't do  anything to  disarm Sacco and  save her.
               That's a lot of nonsense.
                    There was no George Sacco anyplace  because George
               Sacco wasn't there.

          (Emphasis added.)

                                          5

anyone else, about  being restrained at  gunpoint by Sacco,  even

          though  she was  appellant's  friend and  believed  he was  being

          charged  with a crime  that had  been prompted  by his  desire to

          protect her from Sacco.

                    Although the phrasing of the prosecutor's argument left

          something to be desired, it was  not improper to urge the jury to

          evaluate the  plausibility of the justification  defense in light

          of the  other evidence  (and the  lack thereof),  as well  as the

          motivations  and  biases  of  the  defense  witnesses,  including

          appellant.  See United States v.  Savarese, 649 F.2d 83, 87  (1st
                      ___ _____________     ________

          Cir. 1981) (defendant "had  no right to expect the  government to

          refrain from commenting on the quality  of his . . . witnesses or

          from  attacking  the weak  evidentiary  foundation  on which  the

          [defense] rested");  Mount,  896 F.2d  at 626  (not improper  for
                               _____

          government to argue that  its interpretation of the evidence  was

          more persuasive); United States v. Glantz, 810 F.2d 316, 321 (1st
                            _____________    ______

          Cir.),  cert. denied, 482 U.S. 929 (1987) (government is entitled
                  ____  ______

          to comment on plausibility of defense theory).  Nevertheless, the

          government's closing unnecessarily risked the impression that the

          prosecutor was vouching, either personally  or on the strength of

          other extraneous considerations, that George Sacco did not exist,

          rather than merely urging the jury to so conclude on the basis of
                                        ____

          the evidence.   See, e.g., United States v.  Turner, 892 F.2d 11,
              ________    ___  ____  _____________     ______

          14  (1st Cir.  1989)  ("[i]t  is  the  jury's  responsibility  to

          evaluate the credibility of the evidence presented").  Similarly,

          the  prosecutor's  repeated  statements  that  the  defendant was

6

guilty  verged on the exclusive province of the jury to determine

          guilt.   Of  course, any  representation as  to the  prosecutor's

          personal belief in the guilt of an accused is improper.  Nickens,
                                                                   _______

          955 F.2d  at 121; Mejia-Lozano, 829  F.2d at 273.2   The means to
                            ____________

          eliminate  even an appearance  of overreaching were  at hand; the

          prosecutor   need  simply   have   predicated  these   entreaties

          explicitly and  exclusively on  reasonable inferences yielded  by
          __________      ___________

          the  evidence.  See Cain, 544 F.2d at 1116 (prosecutor's argument
                          ___ ____

          that accused is guilty is not improper, provided it calls for the

          jury's assessment of  the evidence  and is not  presented as  the

          personal opinion of the prosecutor).3
                              
          ____________________

               2The government  concedes that  the prosecutor, on  at least
          one  other occasion,  implied  a personal  belief in  appellant's
          guilt.  The prosecutor stated:

                    I think when you look at the evidence in this case
                    _ _____
               and use your common  sense, there's only one conclusion
               you can  reach and that  is that this  defendant Joseph
               Smith has been proved guilty beyond a reasonable doubt.

          (Emphasis  added.)   The prosecutor's  statement could  have been
          purged and converted  into permissible argument  by a simple  re-
          phrasing:  "The government submits . . ."
               Another statement by the prosecutor     that even if  appel-
          lant's story were believed  he was "still guilty" because  he had
          not established  a justification  defense    permissibly  urged a
          reasonable  inference  based  directly  and  exclusively  on  the
          evidence.  See infra at pp. 10-12.
                     ___ _____

               3Recognizing its  special obligation to see  that justice is
          done   and  to  refrain  from   improper  methods  in  seeking  a
          conviction, see  United States v. Quesada-Bonilla,  952 F.2d 597,
                      ___  _____________    _______________
          602  (1st Cir. 1991);  Berger v. United  States, 295 U.S.  78, 88
                                 ______    ______________
          (1935),  the  government forthrightly  concedes  improprieties in
          certain other statements made in its closing argument.
               It concedes that it  impermissibly used pejorative  language
          in  repeatedly  characterizing  the  testimony  of appellant  and
          Machado as  lies.  See  United States  v. Rodriguez-Estrada,  877
                             ___  _____________     _________________
          F.2d 153, 159 (1st Cir. 1989) ("prosecutor's obligation to desist
          from the use  of pejorative language . . . is every bit as solemn

                                          7

A new trial is  unwarranted so long  as we are able  to

          conclude  with  a high  degree  of  confidence that  the  alleged

          prosecutorial misconduct did not affect the outcome of the trial.

          Mejia-Lozano, 829 F.2d  at 274; Panet-Collazo,  960 F.2d at  260.
          ____________                    _____________

          The strength of the case against  the defendant often is the most

          significant factor  to  be  balanced  against  the  prosecutorial

          misconduct.   United States v. Boldt,  929 F.2d 35,  41 (1st Cir.
                        _____________    _____

          1991);  Rodriguez-Estrada, 877 F.2d at 159.  We therefore examine
                  _________________

          the evidence,  and other  relevant factors, to  determine whether

          the alleged prosecutorial misconduct warranted a new trial.

                    The  prejudice  from  the  errant  statements   in  the

          prosecutor's  closing argument  was  mitigated somewhat  by their

          context  and ambiguity.  See Grant, 971  F.2d at 810.  Cf. United
                                   ___ _____                     ___ ______

          States  v. Ingraldi,  793 F.2d  408, 416  (1st Cir.  1986) (among
          ______     ________

          factors for  determining whether new  trial is warranted  is "the

          severity of the  misconduct"); United States  v. Brown, 938  F.2d
                                         _____________     _____

          1482,  1489 (1st  Cir.),  cert. denied,  112  S. Ct.  611  (1991)
                                    _____ ______

          (same).  Although their   ambiguity perhaps risked jury confusion
                                                      ______

          as to its role  as the sole  arbiter of guilt  and finder of  the

          facts,    the    prosecutor's   contentions    that   appellant's

____________________

          as  his obligation to attempt  to bring the  guilty to account");
          cf. Nickens, 955 F.2d at 121 ("[i]t is . . .  inappropriate for a
          ___ _______
          prosecutor to call defendant a liar").  The prosecutor character-
          ized their testimony as "a lie," "one tall tale," and "a complete
          fabrication."    The  government concedes  as  well  that  it was
          improper  for the  prosecutor  to state  that  he "welcomed"  the
          burden of proof in this case.  See United States v. Flaherty, 668
                                         ___ _____________    ________
          F.2d  566, 597  (1st  Cir. 1981)  (statement  told jury  "of  the
          Government's confidence that the evidence would show guilt beyond
          a reasonable doubt").

                                          8

justification defense  had been concocted and that  he was guilty

          were  in no  sense objectionable  as mischaracterizations  of the

          evidence,  but  because  they  were  too  loosely  linked to  the
                                                             ______

          evidence, hence  may have  conveyed the  personal opinion of  the

          prosecutor.  Cf.  United States  v. Farnkoff, 535  F.2d 661,  668
                       ___  _____________     ________

          (1st Cir. 1976) (the fact that the prosecutor made clear that the

          jury  should  arrive  at  its  verdict, based  on  the  evidence,

          mitigated the  effect of  statement that defendant  was guilty).4

          Absent any  suggestion of superior knowledge  or personal opinion

          on  the part  of the prosecutor,  similar argumentation  has been

          found not  to be improper.  See United States v. Garcia, 818 F.2d
                                      ___ _____________    ______

          136,  143-44 (1st  Cir.  1987) ("Although  we think  a prosecutor

          would be well advised  to avoid directly accusing a  defendant of

          lying    since jurors could believe the  government has knowledge

          outside  the evidence  about the  defendant's veracity     we are

          confident  that  the  statements in  this  case  would have  been
                              
          ____________________

               4The  court   firmly  advised   the  jury  in   its  opening
          instructions as follows:

               [Y]ou are the judges of the  facts.  You have to decide
               what actually happened in this case.  You and you alone
               make that decision.  No one, simply no one can trespass
               on   that   very  specialized   unique  area   that  is
               exclusively yours . . .

               In its final  jury charge, the court reiterated:  "Remember,
          I told you  that you are the sole judges of the facts.  You alone
          decide the facts . . . You are the sole judges of the facts."
               Contemporaneous  curative  instructions were  not  given, as
          none were  requested.  In its opening jury instructions, however,
          the  district court  informed  the jury  that  the statements  of
          counsel  are not evidence.   In its final  charge, given the same
          day as its opening instructions, the court reminded the jury that
          the  evidence was limited to  the testimony of  the witnesses and
          the exhibits admitted by the court.

                                          9

perceived only as commentary on the implausibility of the  defen-

          dant's  story.").   Nor did  the overzealous  statement that  the

          prosecutor "welcome[d]" the burden of proof constitute reversible

          error,  as  its context  did  not suggest  that  the prosecutor's

          confidence was  founded on  knowledge or evidence  unavailable to

          the jury.5   See Flaherty, 668  F.2d at 597.   Viewed in context,
                       ___ ________

          these  ambiguous statements  were not  "so egregious  that [they]

          'seriously  affect[ed]   the   fairness,  integrity   or   public

          reputation of judicial  proceedings.'"  Nickens, 955  F.2d at 121
                                                  _______

          (quoting United States v. Young, 470 U.S. 1, 15 (1985)).6
                   _____________    _____

                    Even  more  importantly,   however,  the   prosecutor's

          statements  must be  considered  harmless error  in  view of  the

          uncontested evidence  against appellant.  The  entire defense was
          ___________                                    ______

          that appellant's possession of the firearm was  justified.  Among

          the  essential elements  of a  justification defense,  see, e.g.,
                                                                 ___  ____

          United  States  v.  Lemon, 824  F.2d  763,  765  (9th Cir.  1987)
          ______________      _____

          (defining four elements);  United States v. Gant, 691  F.2d 1159,
                                     _____________    ____

          1162-63  (5th Cir.  1982) (same),  is the  "requirement that  the

          defendant have no alternative to possession of the firearm  [and]

          that  the defendant  get rid  of the  firearm as  soon as  a safe

          opportunity  arises."  United States v.  Singleton, 902 F.2d 471,
                                 _____________     _________

          473 (6th Cir.), cert. denied, 111 S. Ct. 196 (1990).
                          _____ ______

____________________

               5The statement  was as follows:   "[T]he government  has the
          burden of  proof in this case  and I welcome that  burden, ladies
          and  gentlemen, because in this case we have proven the defendant
          guilty beyond a reasonable doubt."

               6See also supra note 4.
                ___ ____ _____

                                          10

The jury's  rejection of the justification  defense did

          not depend on their discounting,  in any measure whatever, either
                                               ___

          Machado's  or appellant's  testimony  about Sacco's  involvement.

          Appellant took the stand and admitted that he had denied having a

          firearm when asked by  Officer Brown, then fled with  the firearm

          still  in his possession.  There was no contention that appellant

          believed  he was in any  physical danger from  Officer Brown, but
                                                   ____  _______ _____

          only from Sacco.   Thus, even assuming appellant's  possession of

          the firearm was justified at the outset, his refusal to surrender

          it at the request of a  police officer from whom he did not  fear

          bodily  harm   (as   distinguished  from   arrest   for   illegal

          possession),  rendered  the  justification defense  unsupportable

          under any view of the evidence.  See United States v. Stover, 822
                                           ___ _____________    ______

          F.2d 48, 50 (8th Cir. 1987) (justification defense does not apply

          when possession continues after  the imminent danger of death  or

          serious bodily harm has passed).

                    Given  that  appellant's   justification  defense   was

          fatally  deficient, as a matter of law, without regard to whether

          the  roles of  George  Sacco and  Deirdre  Machado were  real  or

          concocted,   the  government's   closing  argument   affected  no

          substantial right.7   See,  e.g., Rodriguez-Estrada, 877  F.2d at
                                ___   ____  _________________

          159 (although prosecutor called defendant a liar and crook, error

          held  "harmless" in  light  of overwhelming  evidence of  guilt);

          United States v. Doe, 860 F.2d 488, 494-95 (1st Cir. 1988), cert.
          _____________    ___                                        _____
                              
          ____________________

               7See United States v.  Mitchell, 725 F.2d 832, 837  (2d Cir.
                ___ _____________     ________
          1983) (court gave  the defendant "an opportunity to  be acquitted
          on the basis of a defense to which he was not entitled").

                                          11

denied, 490 U.S. 1049  (1989) (unwarranted comments by prosecutor
          ______

          ruled "harmless"  in light  of overwhelming evidence  of guilt).8

          Thus,   we  have   the   utmost  confidence   that  any   alleged

          prosecutorial misconduct did not affect the outcome of the trial.

                    Although  appellant did  not have  a perfect  trial, he

          most assuredly received a  fair one, see United States  v. Hodge-
                                               ___ _____________     ______

          Balwing, 952 F.2d 607, 611  (1st Cir. 1991), and is  not entitled
          _______

          to  a new one.   See  Fed. R.  Crim. P.  52(b) (no  "plain error"
                           ___

          unless it "affect[s] substantial rights").

                    Affirmed.
                    ________

____________________

               8Finally,  the prosecutor's statements were not so egregious
          as to warrant ordering a new trial as a deterrent  to future mis-
          conduct.   See, e.g., Quesada-Bonilla, 952 F.2d at 602 (court may
                     ___  ____  _______________
          grant new trial  to deter future prosecutorial misconduct).   The
          Supreme Court has cautioned against reversals for harmless error.
          United States v.  Hasting, 461 U.S. 499,  505-07 (1983) (exercise
          _____________     _______
          of  supervisory power  to  reverse conviction  as deterrent  held
          unnecessary where error was harmless).  Moreover, we are aware of
          nothing  which  would  indicate  that  these  improprieties  were
          anything  other  than an  isolated  instance  which will  not  be
          repeated.   See United  States v. Dworken,  855 F.2d  12, 32 (1st
                      ___ ______________    _______
          Cir.  1988)  (we will  not  order a  new  trial  simply to  deter
          misconduct in circumstances where we are confident the misconduct
          will not be repeated).

                                          12