                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

Nos. 92-1210
     93-2050

                          UNITED STATES,

                            Appellee,

                                v.

                         FREDERICK HARDY,

                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]
                                                      

                                           

                              Before

               Torruella and Stahl, Circuit Judges,
                                                  

                     Carter,* District Judge.
                                            

                                           

     Owen S. Walker, Federal Defender Office, for appellant.
                   
     Michael J.  Pelgro, Assistant  United States Attorney,  with
                       
whom  Donald K. Stern, United States Attorney, and Ralph F. Boyd,
                                                                 
Jr.,  Assistant  United  States   Attorney,  were  on  brief  for
   
appellee.

                                           

                         October 12, 1994
                                           

                    

*  Of the District of Maine, sitting by designation.

          TORRUELLA,  Circuit Judge.    A grand  jury returned  a
                                   

five- count  indictment alleging various firearm  related charges

against defendant/appellant Frederick  Hardy and his co-defendant

Raymond Moreno, Jr.   A trial  was held and  the jury found  both

defendants  guilty   on  all  counts.     Moreno  challenged  his

conviction  in a separate appeal.   United States  v. Moreno, 991
                                                            

F.2d 943  (1st Cir.)  (Torruella, J., dissenting),  cert. denied,
                                                                

114  S. Ct. 457  (1993).  In  this appeal, Hardy  claims that the

government  made   several  impermissible  arguments   at  trial,

including  improperly  commenting  in  its   closing  on  Hardy's

decision   not  to  testify  at  trial.    We  believe  that  the

government's  comment on  Hardy's silence  at trial  violated the

Fifth Amendment, and that this error, coupled with other improper

arguments, deprived Hardy of  a fair trial.  We  therefore vacate

Hardy's convictions and order a new trial.

                          I.  BACKGROUND
                                        

          A.  Facts

          We are concerned here not  with a claim of insufficient

evidence, but  with a case in  which we find that  the government

improperly commented  on Hardy's  right not  to testify  and made

other  inappropriate  remarks during  the  course  of the  trial.

Accordingly,  our description of the facts is not limited in this

case to evidence and inferences most favorable to the government,

but rather it is  designed to provide a  balanced picture of  the

evidence appropriate  for  determining whether  the comments  and

remarks were harmless or prejudicial.  Arrieta-Agressot v. United
                                                                 

                               -2-

States, 3 F.3d 525, 528 (1st Cir. 1993).1  
      

          On  the evening of April 18, 1991,  a group of five law

enforcement officers,  while on foot  patrol in the  Lenox Street

Housing Development  in Boston, Massachusetts, heard  a series of

gunshots coming from another area within the  development.  Three

of  the officers, Officers Garvey, Perkins and Devane, ran in the

direction of the shots; the other two, Officer Murphy and Trooper

Drummy, returned to a parked cruiser.

          As Officers  Garvey, Perkins,  and Devane  were running

down Hammond Street, they observed three black males emerge  from

a  courtyard in the direction of the gunshots, run across Hammond

Street,  and disappear  near  a cluster  of buildings  across the

street.   One of the officers described  the three men as running

in a line in a  "hunched over" manner.  The men  then disappeared

from view.  Almost at once,  two of the three officers, joined by

Officer Murphy  (who had left his  cruiser to assist in  the foot

pursuit),  saw three men running through a parking lot behind the

cluster of buildings, and gave chase.  

          The officers saw one of the three men veer off from the

other two  and run in a separate direction.  The second and third

men were then seen by the  officers to come together briefly  and

appeared to pass an object between them.  Officer Murphy, who was

                    

1  We have  previously stated the relevant facts in United States
                                                                 
v. Moreno,  991 F.2d 943 (1st Cir.), cert. denied, 114 S. Ct. 457
                                                 
(1993).  In light of the fact that we do not view the evidence in
the light most favorable to the  verdicts in this case, as we did
in  Moreno, the two recitations of facts differ in some respects.
          
Id. at 944-46.
  

                               -3-

closest  to  the  two   individuals,  described  the  item  being

exchanged as a dark object about one to one-and-a-half feet long.

The individual who took this object then ran  off through a grass

courtyard.   The  individual who  passed on  the  object, Raymond

Moreno,   Jr.,  immediately   stopped,   raised  his   arms   and

surrendered. 

          Another  police officer,  Paul MacIsaac,  aided  in the

pursuit.  Upon  arriving at  the scene, Officer  Murphy, who  had

Moreno  in custody,  directed  Officer MacIsaac  to  head in  the

direction  where the  other man,  to whom  Moreno had  passed the

object, had run.  Officer MacIsaac followed these directions, and

came across two black males at a nearby intersection, standing on

a sidewalk,  looking into  an adjacent  field.  Officer  MacIsaac

questioned  the two men,  conducted a pat-frisk,  and then placed

the two men  in the back of his cruiser.   The officer eventually

took  them to  the station  for questioning  and they  were later

released.

          Officer Garvey testified  that in order to  cut off any

escape route that the  fleeing suspect might use, he  had circled

around  to  the opposite  end of  the  grass courtyard.   Officer

Garvey soon saw a black male, wearing dark clothes, who was later

identified as Frederick Hardy, enter the courtyard.   The Officer

testified  that he  never  saw  Hardy  with  any  weapon  in  his

possession.  After telling  Hardy several times to stop,  Officer

Garvey  testified  that as  Hardy raised  his  arms --  first his

right, then his  left -- over his  head, he heard a  soft thud on

                               -4-

the  ground nearby.   Despite being only  two to three  feet away

from  Hardy, however, Officer Garvey did not see any object leave

Hardy's hands.  Hardy was  then arrested.  Hardy did not  possess

any firearms when  he was  arrested.  After  Officer Garvey  took

Hardy to a police cruiser,  he returned to the area.  A search of

the  area revealed a .32 caliber  pistol about five to eight feet

from where Hardy had stopped.

          The  officers searched  the  path between  the area  of

Moreno's  arrest  and the  spot  at  which Officer  Garvey  first

observed Hardy.   The officers found  a double-barreled sawed-off

shotgun  with a 12 1/2 inch barrel, fully loaded with ammunition,

hidden in bushes along that route.  

          While Moreno  and Hardy  were  being arrested,  Officer

Devane was in search of  the first of the three runners,  who had

gone  off in a separate  direction.  Officer  Devane discovered a

black male, Steven Fern ndes, sweating and  out of breath, hiding

in some bushes.  After arresting Fern ndes and placing him in the

cruiser,  Officer Devane  found  a semi-automatic  pistol on  the

ground near where Fern ndes had been hiding.  

          After receiving  his  Miranda  warning  at  the  police
                                       

station,  Hardy said  that  he had  been  at the  development  by

himself to  visit his niece and  ran when he heard  shots.  Hardy

denied  knowing  Moreno  or  Fern ndes.    At trial,  however,  a

resident of  the housing development  testified that he  had seen

Hardy together with Moreno and Fern ndes a number of times during

the prior  year.   Additionally,  Officer  Dreary of  the  Boston

                               -5-

Police  Department testified that in March 1991, he had stopped a

red Isuzu Trooper, and that Hardy was the driver and Moreno was a

passenger in the front seat.

          B.  Proceedings Below

          The grand jury returned a five-count indictment against

Hardy and Moreno on June 25,  1991.  Count One charged Hardy with

being a felon-in-possession of a firearm,  and Count Four charged

Hardy  with being  a felon-in-possession  of ammunition,  both of

which were in violation of 18 U.S.C.   922(g).  Count Two charged

Hardy  with possessing  a  firearm, a  short-barreled Stevens  12

gauge,  double  barrel  shotgun,  in violation  of  26  U.S.C.   

5861(d).  Counts Three and Five charged Moreno with possession of

the same short-barreled  shotgun and being  a felon-in-possession

of ammunition.

          The  trial took  place over  ten days from  October 28,

1991 to November 14, 1991.   The jury returned guilty verdicts on

all five counts.

          The   court  then  sentenced   Hardy  to   262  months'

incarceration.    Hardy  appealed  both his  conviction  and  his

sentence, and  on November 5,  1992, this Court,  while retaining

jurisdiction,  remanded  the  case  to the  district  court  with

respect  to  some sentencing  issues.   The  district  court then

reaffirmed  Hardy's  sentence, and  Hardy  again  appealed.   See
                                                                 

United States v.  Hardy, 829 F. Supp. 478 (D.  Mass. 1993).  This
                       

second appeal was then consolidated with the first appeal.

                     II.  STANDARD OF REVIEW
                                            

                               -6-

          Hardy argues that  the prosecutor improperly  commented

on  his  failure  to testify  at  trial,  and  that this  comment

constituted a violation of  his Fifth Amendment privilege against

self-incrimination, which unduly prejudiced his ability to obtain

a fair  trial.  We will utilize a  de novo standard to review the
                                          

legal question of  whether the prosecutor's  argument constituted

constitutional error.  United States v. Glantz, 810 F.2d 316, 320
                                              

n.2  (1st Cir.),  cert. denied,  482 U.S.  929 (1987).   We  will
                              

review  the trial court's decision  to deny Hardy's  motion for a

mistrial, based on this  alleged constitutional violation, for an

abuse  of discretion.  Id.   (finding that  district court abused
                         

its discretion by ordering  a new trial where the  court believed

that the  prosecutor  improperly  commented  on  the  defendant's

failure to  testify  or produce  documents  at trial);  see  also
                                                                 

United States v. Turner, 892 F.2d 11, 12-13 (1st Cir. 1989). 
                       

  III.  THE PROSECUTOR'S COMMENT ON THE DEFENDANTS' SILENCE
                                                           

   A.  Did the Prosecutor's Comment Violate the Fifth Amendment?

          The  most serious  argument that  Hardy raises  in this

appeal concerns the prosecutor's closing argument at trial.2   In

Griffin  v. California,  380  U.S. 609,  615  (1964), the  United
                      

States  Supreme  Court  held  that the  Fifth  Amendment's  self-

incrimination clause  forbids the prosecution from  commenting on

an  accused's  failure to  take the  stand  and testify  during a

trial.   A  prosecutor's  comment is  improper  where, under  the

                    

2  Defendant Moreno  did not raise this Fifth  Amendment argument
in his appeal.

                               -7-

circumstances  of the  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."    Glantz,  810  F.2d  at  322  (citations
                                

omitted).  A prosecutor's  comment does not therefore need  to be

direct; rather, a prosecutor may run afoul of the rule in Griffin
                                                                 

by making such comments  inferentially.  See Glantz, 810  F.2d at
                                                   

322; see, e.g.,  United States v. Skandier, 758 F.2d  43, 45 (1st
                                          

Cir.  1985)  (prosecutor's  question  during closing  as  to  how

defense counsel would explain certain events which occurred, in a

case  where the defendant had not taken the stand, was improper);

United  States v.  Flannery, 451  F.2d 880,  882 (1st  Cir. 1971)
                           

(prosecutor's   comment  that  certain  government  evidence  was

uncontradicted,  when  contradiction  would  have   required  the

defendant to take the stand, was improper).

          We believe that here,  the prosecutor improperly called

attention  to the failure of Hardy  to take the stand and testify

at trial.  The prosecutor stated:

            Ladies and gentlemen, the  evidence here,
            the only reasonable  conclusion that  can
            come from this evidence is that Mr. Hardy
            possessed that .32 caliber pistol loaded,
            Mr.   Moreno   possessed  the   sawed-off
            shotgun  loaded,  and  that   during  the
            course of the chase, Mr. Moreno passed it
            off to Mr. Hardy so that he could get rid
            of   it.  What the evidence shows is that
            these  two  defendants  that  night  were
            running and hiding.  They'd been involved
            in  that          incident and  then they
            unfortunately   had  the   misfortune  of
            running  right into  the police  who just
            happened to be in the area, and they were
            running  and  hiding,  running  from  the

                               -8-

            police and hiding  the evidence from  the
            police.  They're still running and hiding
                                                     
            today.   The  time has  come for  them to
                                                     
            stop running and  stop hiding.   The time
                                         
            has come for them to  be held accountable
            for the wrongful acts that they committed
            on  the  night  of  April 18th,  1991  in
            Boston.   That time  is now and  only you
            can  hold them  accountable.   Thank you.
            (emphasis added).

Defense counsel objected  and requested  a limiting  instruction.

The  district   court  was  initially  concerned   that  such  an

instruction  might hurt rather than  help, because the jury might

not  have  construed  the  prosecutor's remark  as  a  comment on

defendants' silence.  The court then asked the government:

            Tell me  this:   In what other  sense can
            the    Government    argue   that    [the
            defendants] are running  and hiding  even
            at this time?

The government replied:

            Because, your Honor,  I'm just drawing an
            analogy between their running  and hiding
            on that night and the Government's burden
            of  proving  guilt  beyond  a  reasonable
            doubt.

The court stated:

            I'm   going   to   give    the   limiting
            instruction.  It doesn't satisfy me.

The court then gave the following instruction to the jury:

            Members  of  the  jury,  I   sustain  the
            objection to the argument . . . that even
            today  the  defendants  are  running  and
            hiding.  You will disregard that argument
            and not  consider it  in  any respect  in
            your  consideration  of  the evidence  in
            this case.

The court  then asked defense  counsel if they  requested further

instructions,  and they replied no.   The defendants  moved for a

                               -9-

mistrial, and the court denied these motions.3

          The prosecutor's  comment during his closing  set up an

analogy  between what the defendants were  allegedly doing on the

night  of  the  crime --  running  and  hiding  -- and  what  the

prosecutor believed they were doing  during the trial --  running

and hiding.  Of course, the defendants were not literally running

from  the trial  or hiding during  the trial.   Rather, they were

both in custody and were sitting  silently during each day of the

proceeding.   Neither defendant testified on his own behalf.  The

natural and necessary implication  of the prosecutor's remark was

therefore  that the  defendants  were running  from the  evidence

presented against them, and hiding behind their right  to silence

during the  trial.   The prosecutor's comment  therefore violated

the Fifth Amendment.  

          B.  Is a New Trial Required?

          Where  it  appears  that  the prosecutor  has  made  an

improper argument  to the  jury, this Circuit  has established  a

standard to evaluate whether a new trial is required.  

            Although  we  have used  slightly varying
            terminology in  describing [the relevant]
            factors, the common denominators  are (1)
            the severity of  the misconduct; (2)  the
            context in which it occurred; (3) whether
            the judge gave any  curative instructions
            and   the   likely    effect   of    such
            instructions; and (4) the strength of the

                    

3  In its charge to the jury, the trial court did state generally
that the government had the burden of proof, that the defendants'
had  a constitutional  right not  to testify,  and that  the jury
should not draw any negative inferences from the exercise of that
right.  These comments, however, in no way specifically addressed
the prosecutor's improper remark.

                               -10-

            evidence against the defendant.

United  States v.  Manning,  23 F.3d  570,  574 (1st  Cir.  1994)
                          

(citations  omitted).    We  treat  these  factors  in order,  to

determine if the prosecutor's comment was harmless.  

          First,  as  we discussed  above,  we  believe that  the

prosecutor's  argument  constituted a  violation  of the  Griffin
                                                                 

rule.   Additionally,  we believe  that the  comments were,  in a

sense, deliberate.   In his closing argument, the  prosecutor had

constructed  an  analogy based  on the  facts  of the  case, with

certain  rhetoric  significantly repeated,  which appeared  to be

planned.   We do  not believe  that the  prosecutor intentionally

intended to influence the jury by commenting on  Hardy's silence,

and we hope  that our belief  is not misplaced.   We do  believe,

however, that  when preparing or reviewing  his proposed closing,

the  prosecutor  should  have  known  that  such  a  comment  was

improper.  

          Second, we point out that this comment was made against

a  backdrop where the possibility that Hardy would receive a fair

trial  was already in danger -- that is, the prosecutor's closing

was not an isolated instance of misconduct.  See United States v.
                                                              

Capone, 683 F.2d  582, 586 (1st Cir. 1982).   In Moreno, 991 F.2d
                                                       

at  947-51, we addressed several  arguments, (two in the majority

opinion, two more in the dissent) which Hardy has also raised  in

this  appeal,   relating  to  improper  arguments   made  by  the

government during trial.   Our conclusions in Moreno  are equally
                                                    

applicable to this case.

                               -11-

          In Moreno,  we noted  that in the  prosecutor's opening
                   

remarks,  he stated,  "the evidence  will show  that [the  police

officers] were doing their jobs protecting the community that has

been  plagued  by  violence,  senseless  violence, shootings  and

killings.  That's  why they were there and that's  why we're here

today."    Moreno, 991  F.2d at 947.   We concluded  that because
                 

there was no evidence  in the case about "senseless  violence" or

"shootings  and  killings,"  it  was patently  improper  for  the

prosecutor to  make those remarks.  Id.   The remarks played upon
                                      

the jury's  emotional reaction  to neighborhood violence  and was

outside the bounds of legitimate argument.  Id.  
                                              

          We  were equally disturbed by a  second argument by the

prosecutor which  not  only  reiterated  the  senseless  violence

theme, but also established a second departure from the "straight

and narrow."   Id. at 948.  The prosecutor  argued in his closing
                 

that  the  shotgun  was not  just  tossed  away but  deliberately

concealed,  and continued:  "Forget about the fact that maybe Mr.

Hooker  [who lived  nearby] or his  wife or his  three kids might

come out and  look at the gun and get their heads blown off.  But

I'm sure Mr.  Hardy had other  things on his  mind going  through

there, like getting  away from the cops."  Although we found that

both of these arguments  were improper, we found that  the errors

were harmless as they related to Moreno.4

                    

4  We  stated that the prosecutor's comments about  the danger to
Mr. Hooker and his family,  although improper, were harmless when
considered  against Moreno,  in part,  because the  objectionable
remarks did not directly  relate to Moreno.  Moreno,  991 F.2d at
                                                   
948.  The improper remarks, however, did have a greater effect on

                               -12-

          The  dissent  found  two  more arguments  made  by  the

prosecutors  to be  troublesome.   The prosecutor  vouched for  a

government witness, intimating  that that witness possessed  some

information  beyond   the  evidence   presented.    Id.   at  951
                                                      

(Torruella,  J., dissenting).    The prosecutor  also  improperly

disparaged defense counsel, by stating that they were paid to see

things in a  different way,  defense counsel was  talking out  of

both sides of his mouth, and  that one defense argument was meant

to divert the jury's attention.  Id.; see, e.g., United States v.
                                                              

Boldt,  929 F.2d  35,  40  (1st  Cir.  1991)  (finding  that  the
     

prosecutor's statement  that "it's  a favorite defense  tactic to

try  to  get you  to focus  on  unnecessary facts"  was improper,

especially in light  of the institutional  nature of the  comment

which  cast suspicion on the role of defense counsel in general).

The  jury  was therefore  exposed to  a  number of  emotional and

prejudicial  arguments  which  potentially  interfered  with  its

ability to appraise the evidence objectively and dispassionately.

          Third,   while  the   trial   court  gave   a  limiting

instruction,  and  Hardy's counsel  did  not  request a  stronger

instruction,  we do not believe  that the curative  effect of the

judge's  instruction  negated  the effects  of  the  prosecutor's

constitutional indiscretion.   Whether a curative  instruction is

sufficient to avoid prejudice depends on the impact of the remark

                    

Hardy's  ability to  get a  fair trial,  because the  remarks did
relate directly to his alleged actions. 

                               -13-

taken in the context of the whole of the evidence, including  any

other aggravating remarks or  circumstances that may increase the

risk  that  the  improper remark  did  affect  the  outcome.   An

improper comment  that may seem insignificant  where the evidence

is overwhelming can  assume a  very different aspect  in a  close

case.  This is such a close case. 

          Finally, the strength of the evidence proffered against

Hardy was not overwhelming.  First, the government's case against

Hardy  largely  rested  on  the credibility  of  Officer  Garvey.

Therefore,  if  the jury  disbelieved,  or  had questions  about,

Officer Garvey's  testimony, we do  not believe that  Hardy would

have  been convicted.   Second, the jury  was required to  draw a

number of inferences in  order to convict Hardy.  No officer ever

saw  Hardy possess either  the pistol  or the  sawed-off shotgun.

While Officer  Garvey testified that  after he stopped  Hardy, he

heard a  soft thud as Hardy  raised his arms, Garvey  never saw a

gun in Hardy's hand, or fall from his hand, despite the fact that

he  was only  two to  three feet  away from  Hardy.   Rather, the

officers  found the  pistol later,  in the  area where  Hardy was

stopped.   Additionally, other officers found  the shotgun hidden

in  an area that Hardy  had seemingly passed  through, but nobody

saw Hardy dispose of the weapon there.  There were also other men

stopped in the area  who could have somehow been  responsible for

the guns.  We  do not believe that this  circumstantial evidence,

which for the most  part rested on Officer  Garvey's credibility,

clearly established  Hardy's guilt.   Moreover, in  light of  the

                               -14-

prosecution's  comment, the  jury  may very  well have  wondered,

either consciously or subconsciously, what Hardy had to say about

the  extent of his involvement,  and concluded that  he must have

had something to hide because of his failure to testify.

          The  district court  did  not evaluate  these  relevant

factors  on the record to determine  if a new trial was warranted

in  light of  the  prosecutor's improper  closing argument,  when

Hardy moved  for a mistrial.  Because all of these factors cut in

favor of  a new trial, we believe  that the district court abused

its  discretion when  it denied Hardy's  motion.   The government

improperly commented on Hardy's failure  to testify, and in light

of  the government's  other  improper comments  and the  evidence

presented, we  believe that  this  constituted reversible  error.

See, e.g., United States v. Barton, 731 F.2d  669, 675 (10th Cir.
                                  

1984).    For   the   foregoing   reasons,  we   vacate   Hardy's
                                                                 

convictions and order a new trial.
                                 

                               -15-
