USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1719

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS SULLIVAN,

Defendant, Appellant.

____________________

No. 95-1760

UNITED STATES OF AMERICA,

Appellee,

v.

THOMAS PLATT,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________

____________________

Before

Selya, Stahl and Lynch, Circuit Judges.

______________

____________________

Judith H. Mizner for appellant Dennis Sullivan.

________________
Perry O'Brian for appellant Thomas Platt.
_____________

Margaret D. McGaughey,
______________________

Assistant

United

States Attorney,

whom

Jay P. McCloskey,
_________________

United States

Attorney,

appellee.

____________________

May 31, 1996

____________________

was on

brief,

-2-

LYNCH,
LYNCH,

Country

the

approximately

Dennis Sullivan

spend almost the

Defendant

An armed

robbery of

the

Hospitality Inn in Bangor, Maine in 1994 that netted

robbers

Defendant

Circuit Judge.
Circuit Judge.
_____________

$520 was

was

next thirty

Thomas Platt

years.

They appeal,

overly

zealous,

the

was

prosecuted

sentenced for

years of his

sentenced to

ably arguing

evidence

federally.

the crime

to

life in

prison.

more than

thirty

that the prosecutor

was

insufficient

the

and

instructions deficient.

asking

one

another's

witness

While the prosecutor

to

comment

testimony, the

prosecution presented

on

the

misstep was

overstepped in

truthfulness

harmless error.

enough evidence to prove

the instructions contained no error.

of

The

its case and

We affirm.

Two

robbed the

masked

one

Inn in the early

Inn's night manager was

jumped

men,

over the

with a

sawed-off

morning of July 28,

shotgun,

1994.

faced with the shotgun by a

countertop

and told

the

The

man who

manager to

look

straight ahead and not at him.

Startled, the manager did not

get a full look at the robber.

He did get a good enough look

to testify that the robber was a man of medium build, between

5'8"

and 5'10" high, weighing between 140 and 160 pounds and

in

his early to mid-twenties.

ski

mask, or combination of

The robber wore some sort of

masks, and dark

clothing.

manager heard, but did not see, a second robber.

The

The robbers

-3-3-

took

the

manager's checkbook,

his

$160 in

cash,

and his

grocery store

and bank cards.

The robber with the gun asked

the manager where the Inn's money

it

was in

gotten

a drawer.

The

was.

The manager told him

second robber

said that

he had

the drawer open and the robbers took the $360 inside.

The robbers told the manager to

lie down on the floor.

They

taped his eyes and mouth shut with duct tape and fled.

Shortly thereafter, the

four men but released them.

police stopped a car

In the car were the

with

defendants

and two companions, Dale Braley and Timothy Boudreau.

Braley

and Boudreau eventually became cooperating witnesses.

Meanwhile

dog

followed the

barn next

the investigation

robbers' scent across

to an abandoned

house.

proceeded.

the field

At the house

A police

around a

the police

observed tire tracks from a car that had rapidly accelerated.

Later, a citizen observed

a maroon bag on a

and told the police about it.

things,

a sawed-off

holster

inside

camouflage hats.

the

duct

tape

of

It also

used

two

locked box with

masks,

dark

a shoulder

sweatshirts

contained the rest of the roll

to bind

checkbook and his bank cards.

name "Angela Turner."

The bag contained, among other

shotgun, a

it,

nearby roadside

the

manager,

The bag had a

the

and

of

manager's

tag bearing the

Ms. Turner, it turned out, was Platt's

girlfriend.

-4-4-

The scheme unravelled.

to Braley

and Boudreau, who incriminated

while minimizing their own

police

The police followed

were looking

disappeared.

But

to

when

Platt and Sullivan

roles in the crime.

question them,

arrest warrants

leads

Hearing the

Platt and

Sullivan

were issued,

they

surrendered.

Sullivan and Platt were

obstruct commerce

by

robbery in

charged with conspiracy to

violation of

18 U.S.C.

1951,

obstructing

commerce

and

committing robbery in violation

and using

or carrying a

attempting

of 18 U.S.C.

firearm in

and abetting the same,

18 U.S.C.

and 2.

charged

individually

with

registered to them in

Transfer

5871.

Record in

They were

on

all

Platt and

possession

violation of

and 2,

crime of

in violation of

Sullivan were

of

26 U.S.C.

also each charged

each

firearm

not

5861(d) and

individually with being

firearms, in violation of 18

924(a)(2) and 924(e)(1).

counts save

1951

by

the National Firearms Registration and

felons in possession of

922(g)(1),

same

relation to a

violence, and aiding

924(c)

the

for

firearm possession counts.

Sullivan's

U.S.C.

They were convicted

acquittal

on the

two

It was clear that the four men were connected

the

crime and two had

was

which two.

Braley

and

At

Boudreau

actually committed it.

trial the

had done

theory

it

The question

of defense

and

that

with

was that

there was

no

-5-5-

reliable identification of the defendants.

While a footprint

was

found on the Inn manager's countertop, it did not appear

to belong to either Sullivan or

Platt and the police did not

do the work to identify whose footprint it was.

At trial,

decided to commit

Braley

Braley testified

a crime and went

and Boudreau both said

that the foursome

riding around in a

had

car.

that Sullivan, who had worked

as a pizza delivery person, mentioned that the Inn would have

only

one employee there

robbery.

house

and would

Braley testified

near the

camouflage gear

Inn.

good target

that they drove to

Sullivan and

and walked

be a

across a

Later, Sullivan and Platt returned.

for a

the abandoned

Platt donned

field toward

masks and

the Inn.

They "dash[ed]" into the

car and told Braley to get out of there because they had seen

a cop.

In the

car, Sullivan said,

"I got that

guy good."

While holding his finger up to

if he were pointing

the

the back of Braley's head

a gun, Sullivan said he had

as

jumped over

motel counter and told the night manager to "[g]et right

down on the ground."

miles,

they noticed

afraid they might be

After the group had driven about eight

a police

car

coming toward

stopped, tossed the maroon bag

them and,

out the

window.

The

in the

trial.

girlfriends of the

crimes, but attempted

Braley

and

defendants implicated them

to recant those

Boudreau acknowledged

-6-6-

statements at

they

had

been

charged

with involvement

with the

Another

witness,

Stevenson,

Vaughn

wanted to purchase the

who acted as

from

robbery in

state court.

testified

Platt

sawed-off shotgun and that Stevenson,

middleman for the

transaction, got the

the seller and put it into Platt's closet.

friend, Danny Cray, also testified that Platt said

to purchase the

that

weapon

Stevenson's

he wanted

shotgun and that Stevenson had delivered the

shotgun to the place where Platt was living.

Sullivan argues that

to support his conviction

the evidence was insufficient

of using or carrying a

firearm in

connection with a crime of violence, particularly in light of

his

being

acquitted on

unregistered

firearm.

several

asking

firearm and

Sullivan also

doubt was in

the

Sullivan

to

of

in possession

an

of a

argues the instruction on reasonable

his due process

actions,

comment

witness's

testimony, violated

different

labels

he

of possession

being a felon

violation of

prosecutorial

charges

attempts

rights and

including the

on

the

to

prosecutor's

veracity

due process.

mount

that

of

another

Finally, under

an

ineffective

assistance of counsel claim.

Platt

argues

that

the district

court

erred

in

permitting the prosecutor to

the

other witness

statement

made

by

lied.

the

question Sullivan as to whether

In

addition,

prosecution

in

he argues

opening

that

argument

-7-7-

violated

his

Fifth Amendment

rights

and

that there

were

evidentiary errors.

We treat each defendant's claims separately.

II

Sullivan
________

Sufficiency of the Evidence

___________________________

In assessing a challenge

evidence,

we "review

the

evidence and

reasonable

whole and in

the light

would

record to

determine whether

inferences therefrom,

most favorable

to the

taken

the

as

prosecution,

allow a rational jury to determine beyond a reasonable

doubt that

States
______

to the sufficiency of the

the defendants were

v. Mena-Robles,
___________

guilty as charged."

4 F.3d 1026,

cert. denied, 114 S. Ct. 1550 (1994).

1031 (1st

United
______

Cir. 1993),

_____ ______

Sullivan's

assertion

that

there was

not

enough

evidence

to show he carried or used the shotgun stresses two

points.

First, Sullivan says, it is undisputed that the gun

belonged to Platt and that the night manager did not see

carried

the gun.

the gun.

is

He claims no

Second, he

who

other evidence linked him to

says that the weakness of the

evidence

revealed by the jury's acquitting him of being a felon in

possession

of a

firearm and

of possessing

an unregistered

weapon.

As

to the

not indicate that the

latter, "'[v]erdict

inconsistency does

government necessarily failed to prove

-8-8-

an essential element of its case beyond a reasonable doubt.'"

United States v.
______________

(quoting

Calderon, 77
________

United States v. Lopez,

_____________
_____

F.3d 6,

10 (1st

944 F.2d 33,

Cir. 1996)

41 (1st Cir.

1991)); see also United States v. Powell, 469 U.S. 57 (1984).

___ ____ _____________
______

An inconsistent verdict does

conviction

not require vacating a criminal

as long as the appellate

court is satisfied that

there

was

sufficient

conviction.

evidence

to sustain

the

counts

of

See Calderon, 77 F.3d at 10.

___ ________

A jury could well have found that Sullivan actually

carried or used the

aided or

clear

abetted the carrying

or use

least, knowingly

of the gun.

It

was

that at least one of the robbers carried the sawed-off

shotgun.

The

accosted him

firearm.

(1995).

gun himself or, at the

See
___

night manager testified

brandished a shotgun.

that the

robber who

That robber

"used" the

Bailey v. United States, 116 S. Ct.

______
______________

501, 508

A reasonable jury could have found that Sullivan was

that robber.

Braley testified that after the robbery, in the

car, Sullivan

put a pretend gun to Braley's head, apparently

imitating what he had

done to the night manager.

And, there

was testimony that Sullivan, in advance of the robbery, while

at

Platt's home,

picked up

the gun

and commented

would be good to use in a robbery.

The

the two

field to the Inn.

robbers walked across the

reasonable to

one

infer that the gun

or both and that the two

that it

evidence showed that

was brought to

It is

the Inn by

robbers were each aware of the

-9-9-

shotgun

and its intended use.

inconspicuous.1

and put

car.

in the bag

during

was brought back

later abandoned by

from the robbery

the four men

In the bag were the masks and camouflage

used in the

that

The gun

A sawed-off shotgun is hardly

robbery.

Sullivan knew

The evidence was

the

shotgun would

in the

garments also

sufficient to

be

used or

show

carried

the robbery and that he took some action intending to

cause the

gun to be used

Luciano-Mosquera,
________________

petition for cert.

________ ___ _____

63

or carried.

F.3d

filed, 64
_____

1142,

1150

See
___

United States v.
_____________

(1st

U.S.L.W. 3765

Cir.

1995),

(U.S. Apr.

26,

1996) (No. 95-1775); see also United States v. Price, 76 F.3d

___ ____ _____________
_____

526, 529-30 (3d Cir. 1996) (The "[accomplice without the gun]

probably knew

in advance,

and

most certainly

knew at

the

time, what [the one with the gun] was doing."); United States
_____________

v. DeMasi, 40
______

held

F.3d 1306, 1316

(1st Cir. 1994)

be

liable under aiding and abetting theory if he knew that

weapons would be used during the robbery),

S.

(one can

Ct. 947

(1995).

The

jury

could

cert. denied, 115

_____ ______

have

found

actual

knowledge and thus could easily have found that Sullivan knew

____________________

1.
1995),

United States v. Spinney, 65 F.3d 231, 238-39 (1st Cir.

_____________
_______
which

accomplice,

vacated
is, on

the

its facts,

firearms

conviction

inapposite.

The

of

an

firearm in

Spinney
_______

was a handgun that

entered the bank and

was not visible

the accomplice charged with

abetting remained outside of the bank.

the

use

of the

when the robber

gun was

not

aiding and

Moreover, in Spinney,
_______

contemplated at

the planning

stages, while here the jury could infer that it was.

-10-10-

to a "practical

certainty" that the gun would be

used.

See
___

United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995).

_____________
_______

Reasonable Doubt Instruction

____________________________

Although he did not

instruction

at

trial,

instruction

on

appeal.

strictures

of

object to the reasonable doubt

Sullivan

As

plain error

attempts

result,

review.

52(b); Luciano-Mosquera, 63 F.3d at

________________

the

standard of

review does

to

he

attack

the

must meet

the

See
___

Fed. R.

Crim. P.

1156.

In this

instance

not alter the

outcome because

there was no error in the instruction.

The judge instructed the jury as follows:

Now, as I have indicated to you, the

government has the burden of
defendants
doubt.
jurors in

guilty

Some of

beyond

proving the
a

you may have

civil cases and when

told that it
that a fact is

is only necessary

reasonable
served as
you were
to prove

more likely true than not

true, in a civil case, that's the burden.

In criminal cases, the government's proof
is subject to a higher standard.

It must

be beyond a reasonable doubt.

Now,

there's

been

several

suggestions made to you during the course

of

argument

with

doubt.

And I

lawyers

have

regard to

reasonable

point out to you

the

right,

that the

indeed

the

responsibility, to point out to you those

facts

or

that

evidence

or

those

interpretations of

legal principles that

is more persuasive

to their side

case.

I instruct you that, if what I

telling you
way
about

of the
am

about the law differs in any

with what the

lawyers have told you

the

law, I'm

instructing

you to

follow the

law as I

give it to

you and

not as the lawyers suggest[] it may be if

there is a difference.

-11-11-

"Reasonable

doubt"

has

now

been

defined for you in several different ways

by

counsel,

reasonable

and

doubt

instruct

defines

doubt that is reasonable.

meaning,
the

and you as

plain

meaning

you

itself

that
--

It has a plain

jurors can consider

of reasonable

doubt

with what the words say.

The only

caveat

clear about as
doubt is
the guilt

that you

must

be

it relates to

reasonable

that the government

must prove

of each of

the crimes involved

the defendants for

beyond a

reasonable

doubt as you interpret that term.

The

judge

thus

left the

fine

tuning

of

the meaning

of

"reasonable doubt" to the jurors, as is appropriate under our

precedent.

See United States v. Cassiere, 4 F.3d 1006, 1024

___ _____________
________

(1st Cir. 1993).

Sullivan says that by referring to

given

by

definitions.

counsel,

the

judge

the definitions

incorporated

The argument suffers from

erroneous

three flaws.

First,

that is not a fair reading of the instruction, which told the

jurors

what

the judge's
_______

reference to counsel's

instructions

were.

definitions was followed

Second,

the

immediately

by

a statement that the judge's instructions on the law were

to

be followed,

lawyers'.

and,

Third,

rests on the premise

to

if there

the extent

were

differences, not

that Sullivan's

that his own counsel gave

the

argument

an erroneous

definition of reasonable doubt, we will not entertain such an

argument.

(1st

Cir.

Cf.
___

United States
_____________

1987)

(no

v. Munson, 819
______

plain

error

in

F.2d 337,

admitting

342

certain

-12-12-

testimony

when,

among

other

problems, the

testimony

was

elicited by defense counsel on cross-examination).

Ineffective Assistance and Due Process Claims

_____________________________________________

Sullivan combines three arguments, tied together by

the common theme

For several

that his counsel at

reasons, ineffective

usually heard on direct

Martinez,
________

Collins,
_______

appeal.

trial was ineffective.

assistance claims

are not

See United States

___ _____________

v. Diaz_____

71 F.3d 946, 953 (1st Cir. 1995); United States v.

_____________

60 F.3d

4, 7

n.1 (1st

Cir. 1995).

There

is no

reason here to depart from that rule.

To the

extent he

ineffective assistance

own.

Sullivan

makes claims independent

of counsel claim, they

complains

that,

of the

fail on their

despite Platt's

objection

which resulted in excluding the evidence, the evidence should

have been admitted that Platt and Braley committed

of the Econolodge

Sullivan

impeach

the week

urges that the

Braley.

before the robbery

evidence would have

Failing

that,

a robbery

of the

Inn.

been useful to

he

says,

severance

was

that

he

never sought

to

matter, and

he

warranted.

His

cross-examine

objected

evidence.

best,

strange

to

initial

hurdle is

Braley about

the

government's

Moreover,

review of

the

he never

Econolodge

request

asked for

his contentions is

twist, the

parties now

-13-

to

present

a severance.

for plain error.

reverse the

such

At

In a

positions they

-13-

held

in

the

evidence was

been

matter

trial court

cumulative and

admitted.

Switching

of discretion

the

government saying

Sullivan saying it

of position

for the trial

hardly requires reversal

v. Innamorati,
__________

with

judge and

as plain error.

996 F.2d 456,

aside,

the

should have

this was

the decision

See United States

___ _____________

478 (1st Cir.),

cert. denied,
_____ ______

114

S. Ct.

error

409 (1993).

The same

is true

in failing to sever the trials.

Edgar,
_____

No. 95-1190, slip

(failure to

States
______

denied,
______

v.

Nason, 9
_____

114 S.

not rise to

F.3d 155,

Ct. 1331

evidence of guilt

Cf. United States v.

___ _____________

op. at 8 (1st

sever reviewed for abuse

158

Cir. Apr. 19, 1996)

of discretion); United
______

(1st Cir.

(1994) (same).

in this case.

for the alleged

1993), cert.
_____

There

was strong

Sullivan's convictions

a "miscarriage of justice."

See
___

do

Edgar, No. 95_____

1190, slip op. at 27 n.16.

Sullivan's

raised by Platt.

in

the

margin,2

second argument of

Through

the

trial error is also

a series of questions,

prosecutor

asked

reproduced

Sullivan

whether

____________________

2.

Q:

So, I take it

you would deny that you

ever stated

to Vaughn Stevenson that you wished you didn't have

so many people involved in the robbery?
A:

You take it I deny that?

Q:

Yes.

A:

I certainly do, yes.

Q:

I take it that, when Vaughn testified to that,

you

would say he was lying?

A:

I'd say --

[Defense counsel]:

Objection, your Honor.

. . . .
The

Court:

Objection's overruled.

cross-

-14-14-

He

can answer.

It's

another witness, Vaughn

said that Sullivan

Stevenson, had

lied when

complained that he wished he

so many people involved in the robbery.

Stevenson

didn't have

This court stated in

United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991),
______________
_______

that this

type of

questioning was

have said the same.

871

See
___

improper.

Other courts

United States v. Boyd, 54 F.3d 868,

_____________
____

(D.C. Cir. 1995); United States v. Scanio, 900 F.2d 485,

_____________
______

492-93 (2d Cir. 1990), overruled on other grounds, Ratzlaf v.

__________________________ _______

United States,
______________

ambiguity

left

510

U.S. 135

after

(1994).

Akitoye,

we

If

state

there was

any

the

now

rule

_______

emphatically:

counsel should not ask one witness to comment

on the veracity of the testimony of another witness.

As was

explained in Akitoye:
_______

It

is not

draw

the place

conclusions

aspersions

The

witness to

about,

upon

veracity.

of one

another

or

cast

witness'

"was-the-witness-lying"

question framed by the prosecutor in this

case was of that stripe.

It should never

have been posed . . . .

____________________

examination.
A:

Could I have the question again?

Q:

Vaughn Stevenson testified that you told him, while

you

were

robbery,

riding
that you

in

his car

told

shortly

him that

after

the

you wished

you

hadn't had so many people involved in the robbery.

A:

Uh-huh.

And you

want my opinion as to

whether he

lied?
Q:

And you're saying -that

I take it you would

was a lie, that you

say that

never said anything like

that.
A:

You take that correctly, yes.

-15-15-

923

F.2d at

office

224 (citations

omitted).

We expect

that the

of the United States Attorney3 and other counsel will

abide by the rule.

The prosecution

next

misreads

line

of

cases

primarily from the Second Circuit and suggests that this non-

comment

rule applies

differently depending

on whether

other witness is a police officer or a lay witness.

Boyd,
____

Compare
_______

54 F.3d at 871 ("It is . . . error for a prosecutor to

induce a

witness to

testify that

another

witness, and

particular a government agent,

has lied on the

United States v. Richter, 826

______________
_______

F.2d 206, 208

("Prosecutorial cross-examination which

to

the

state

that

law

enforcement

stand.") and
___

(2d Cir. 1987)

compels a

officers

in

lied

defendant

in

their

testimony is improper.") with United States v. Gaind, 31 F.3d

____ _____________
_____

73, 77 (2d Cir. 1994) ("[T]he opposing witnesses in this case

were

former

[employees

of

defendant's

government agents.") and Scanio, 900 F.2d at

___ ______

business],

not

493 ("While the

rule barring this type of cross-examination is not limited to

situations where the

defendant is

testimony of government agents,

asked to

. . . we have

comment on

the

shown special

concern with prosecutors utilizing what some persons perceive

as the

heightened credibility of government

agents . . . ."

____________________

3.

Appellate counsel for the United States assured the court

at oral argument that

States Attorney

attorneys in the Office of

in Maine

would promptly be

such questions are improper.

-16-16-

the United

instructed that

(internal citations

omitted)).

The rule only

applies, the

prosecution says, when the other witness is a police witness,

not a lay witness.

Second Circuit.4

We make no such distinction, nor does the

That erroneous reading

purpose of the rule.

misunderstands the

The rule reserves to the jury questions

of credibility and thus makes it improper to induce a witness

to say another witness lied on the stand.

See
___

Boyd, 54 F.3d
____

at 871.

That this

not the

end of the

rule was violated by

analysis.

The

violation of the rule was harmless.

was.

While

considered,

evidence

of guilt

such evidence

is

was very

the prosecution is

question is whether

the

In context, it certainly

only one

factor to

be

strong.

See generally
___ _________

Harry T. Edwards, To Err Is Human, But Not Always Harmless:

___________________________________________

When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167

_____________________________________

(1995).

committed

shotgun.

Two

witnesses

the robbery and

testified that

Platt and

four witnesses tied

Sullivan

Platt to the

Moreover, the error was on a minor point:

whether

Sullivan in his testimony would say another witness was lying

____________________

4.

The distinction the Second Circuit draws is in evaluating

whether

the error

Whether

a witness is a

determining whether
justice.

See
___

is harmless

rule is

government agent may

there is

Gaind,
_____

once the

31

prejudice or a

F.3d

"miscarriage of justice," court

at

77

(in

violated.

be relevant in
miscarriage of
reviewing

for

believed that questions

did

not alter the outcome of the trial); Scanio,

______

900 F.2d at 493

("[T]he government's attempt to compel [defendant] to comment

on [witness's] veracity was improper; however, we believe any
error was harmless.").

-17-17-

when the witness said Sullivan had

people

being involved

in the

complained about too many

robbery.

The

other witness

testified to Sullivan's complaint; Sullivan denied making it.

The damage to Sullivan's defense came from Stevenson's direct

testimony.

testimony

obvious

That there

and

most

was

Sullivan's was

likely

rhetorical points.

scored

We cannot

rhetorical questions from the

outcome of the trial.

761, 771

(1st

prosecutor not

Cir.

contradiction between

obvious.

the

Pointing out

government,

say that

implicating a

at

these few

the

most,

largely

prosecutor affected at all the

Cf. United States v.

___ _____________

1996)

that

(improper

Wihbey, 75 F.3d
______

conduct

on

part

constitutional right does

of

not

require

reversal

unless

it

affected the

outcome

of

the

trial).

Sullivan also argues that some of the comments made

by

the prosecution

vouching

for

in

its closing

the credibility

of

argument were

certain

witnesses.

prosecutor argued:

The
again,

government would
Tim Boudreau,

believability

on

suggest that,

if you

came off pretty believable.

to

make

that

assess his

the witness

judgment,

stand, he

But you have

ladies

and

gentlemen.

you

. . .

The

[Cray]

couldn't

anything up

on

couldn't -- if he

government suggests
have

the witness

lied
stand.

to

about
He

was lying, he couldn't

even remember his own name.

And on rebuttal, the prosecutor argued:

improper

The

-18-18-

The government suggests

. . . that

they

were up there telling the truth.

. . . .
.

[Braley]

told

you

the

truth. . . .
. . . .
. . .
. .

The government suggests

that

. Braley, . . . Stevenson, and . . .

Boudreau .
this case.

. . are telling

the truth in

As there

was no objection,

we review for plain

error.

See
___

United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).

_____________
___________

While

appropriate

some

response

government witnesses'

of the

to

the

statements

defendants'

771-73 (comment that

. . .

truthfully

about

vouching); United States

_____________

Cir.

1994) (improper

argue:

"If

you he

could have done

have been

attack

credibility, see id., others

___ ___

crossed the line into improper vouching.

at

may

"what they

what

v. Manning, 23
_______

witness

vouching

knew"

may have

is testified

was

improper

F.3d 570, 572

for

[police witness] is going to come

that very, very

the

See Wihbey, 75 F.3d

___ ______

have done

they

on

an

prosecutor

(1st

to

in and lie to

easily.

There's a

million

little

Defendant.

ways

But they

they

could

cannot.

have

honesty.").

They're

it

The prosecution

cannot engage in that kind of conduct.

truth. . .

given

bound by

their

to

witnesses

They're bound

oath and

the

by the

limits of

Nevertheless, no miscarriage of justice resulted

and the comments

public reputation

did not impact

the fairness, integrity

of the judicial proceedings

not be noticed as plain error.

and so should

See Collins, 60 F.3d at 7.

___ _______

-19-19-

or

III

Platt
_____

Prosecutor's Opening Statements

_______________________________

Platt

opening

argues

prosecutor's

statement in

that the jury would "meet" the two defendants was an

improper

comment on

Sullivan

objected to

opening, Platt

denied

that the

the

instruction.

moved

motion,

whether the

the

for a

but

Apparently

defendants would

comment and

mistrial.

offered

for

to

at

testify.

the end

of

The district

give

strategic

the

court

cautionary

reasons,

the

defendants rejected the offer.

Whether

Fifth

Amendment

the

prosecutor's

privilege

argument

against

self-incrimination

reviewed de novo.
_______

United States v. Hardy, 37

_____________
_____

(1st

We review

Cir. 1994).

mistrial for abuse

773.

of discretion.

prosecutor's comment

circumstances

manifestly

would

the denial

the

is

F.3d 753, 756

of the

motion for

See Wihbey,
___ ______

75 F.3d

at

There was no violation of the Fifth Amendment here.

"A

the

violated

of

the

intended or was

is improper

case,

the

the failure

language

of such character

naturally and necessarily take

of the accused to

it to be

testify."

757 (internal quotations omitted).

where, under

used

was

that the jury

a comment on

Hardy, 37
_____

F.3d at

Sullivan's counsel agreed

that

the choice of words was not deliberate:

meant to say that

the prosecutor

the defendants would be introduced

to the

-20-20-

jury.

And in fact, the defendants' lawyers did introduce the

defendants

to

the

jury

after

the

prosecutor

made

the

allegedly

offending remark.

word choice

the

did not

In context,

the prosecutor's

"naturally and necessarily"

defendants' privilege

comment on

against self-incrimination.

Cf.
___

Hardy, 37 F.3d at 757-58 (holding that prosecutor's statement

_____

that defendants, who

not testify,

the Fifth

were sitting in

were "still running and

the courtroom but

hiding today" violated

Amendment (emphasis removed)).

prosecutorial

misconduct

that

did

would

Thus, there was no

warrant

considering

mistrial.

Sufficiency of the Evidence

___________________________

Platt

insufficient to

also makes

support his

the evidence implicating him

claim that

conviction.

the evidence

Platt

as one of the two

was

argues that

robbers came

principally

argues,

from

should

Braley and

not have

Boudreau.

been

believed

Those two,

Platt

because they

were

cooperating witnesses who

gave inconsistent versions

events

on

that

transpired

July

28,

1994.

of the

However,

"'[c]redibility determinations are uniquely within the jury's

province,

and we defer to the jury's verdict if the evidence

can support varying inferences.'"

77 F.3d 6, 10

at 62).

United States v. Calderon,

_____________
________

(1st Cir. 1996) (quoting Cruz-Kuilan,

___________

As the recital of the facts

shows, there was ample

evidence to convict Platt on all counts.

-21-21-

75 F.3d

Other Evidentiary Issues

________________________

Platt

excluding the

certain

abused

Sullivan

argues

the

district

prior misdemeanor and

government

its

that

witnesses and

discretion

by

court erred

in

juvenile convictions of

that

allowing

the district

court

cross-examination

on a prior robbery conviction.

of

We have considered

Platt's arguments and find no abuse of discretion.5

Finally,

Platt argues that

evidence that Boudreau

had

no

prior

criminal

admitted.

Platt

violation

of

character.

F.2d 508,

convictions should

argues that

Fed. R.

Evid.

608

to

have

510-12 (3d Cir. 1985)

shows

that

it

show Boudreau's

Boudreau's background

good

(such evidence inadmissible

admitted

and it was thus

of the district court.

in

Grant, 775
_____

prove character of accused).

was

been

was admitted

Cf. Government of Virgin Islands v.

___ _____________________________

under Rules 404 and 405 to

record

the evidence

not

to

further

The

develop

within the discretion

Cf. United States v.

___ _____________

Blackwell, 853
_________

____________________

5.

Platt

district

seeks
court's

stricter
exclusion

standard
of

one

of

review

witness's

for

the

misdemeanor

conviction for theft by arguing that it "involved dishonesty"

and thus

should

have

been

admitted under

Fed.

R.

Evid.

609(a).
Cir.

See United States v.

___ _____________

1994)

exclude

(district

prior

impeachment
Theft, on

court

does not

convictions

purposes),

Tracy, 36 F.3d 187,

_____

cert.
_____

involving

dishonesty

denied, 115
______

S.

if

it

involves

some

untruthfulness, or falsification.
Mejia-Alarcon,
_____________

in

discretion

Ct.

particular facts, could conceivably be

dishonesty,

denied, 114
______

have

995

F.2d 982,

element

n.7

-22-22-

for

(1995).

a crime of
of

(10th Cir.),

deceit,

cert.
_____

But Platt points to nothing

his assertion that

was a crime of dishonesty.

to

See id.; United States v.

___ ___ _____________

989

S. Ct. 334 (1993).

the record to support

192 (1st

the theft here

F.2d

86,

evidence

F.2d

88

(2d Cir.

that defendant

1988)

had no

(error

to strike

background

prior arrests);

Grant, 775
_____

at 513 (trial court has wide discretion as to admission

of background evidence).

here.

Affirmed.
_________

There was

no abuse of

discretion

-23-23-