
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1131                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               ANTHONY J. GRABIEC, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Scott F. Gleason  with whom Gleason Law  Offices was on brief  for            ________________            ____________________        appellant.            George B.  Henderson, II, Assistant  United States Attorney,  with            ________________________        whom  Donald  K.  Stern, United  States  Attorney,  was  on brief  for              _________________        appellee.                                 ____________________                                  September 25, 1996                                 ____________________                      ALDRICH, Senior Circuit  Judge.  Defendant  Anthony                               _____________________            J. Grabiec, Jr., connected with an illegal gambling and loan-            sharking  organization known  as  the Winter  Hill Gang,  was            found guilty  of various racketeering offenses,  18 U.S.C.               1962(c) and (d), but acquitted on one count under 18 U.S.C.              894(a).    On  this  appeal  he  complains  of a  prejudicial            argument  by the  prosecutor in  his final  summation  to the            jury,  and of  the court's  refusal to  allow him  to  make a            particular  argument   based  on  the   government's  opening            statement.  We affirm.                      After  defendant's  brief's  lengthy exposition  of            various types of improper  arguments, their possibly  serious            consequences,  and  effective   and  ineffective  cures,   it            developed that the prosecutor's  offense, after defendant had            charged him with "bias . . . puffery . . . bombast  and . . .            hot air"1 was to speak of  the defense as "laughable."   More            exactly:                           [I]f there is  any bombast,  puffery                      and hot air in this case, it's not coming                      from our side of the table.  In fact, the                      defense in  this case would  be laughable                      if  the  crimes  involved  were   not  so                      serious.            It further  appeared that,  upon  defendant's objection,  the            court  said to the jury, "Well, the jury will understand that                                            ____________________            1.  Five times.                                         -2-            this is argument, not evidence.  It will be  taken that way."            The  defendant said nothing further.                      This silence,  of course, means  defendant must now            prove plain error.  United States v. Wihbey, 75 F.3d 761, 769                                _____________    ______            (1st Cir. 1996) (citing United States v. Olano, 507 U.S. 725,                                    _____________    _____            731 (1993)); Fed.  R. Crim. P.  52(b).   We do not,  however,            find even simple error.                      We can agree with defendant that we  have long held            that counsel  must not express a personal opinion.  Greenberg                                                                _________            v. United States, 280 F.2d 472, 475 (1st Cir. 1960) (Aldrich,               _____________            J.).  Again,  in United States v. Nickens, 955  F.2d 112, 121                             _____________    _______            (1st Cir.), cert. denied, 506 U.S. 835 (1992), we said, "This                        _____ ______            court  has  repeatedly  stated  that  it  is  improper  for a            prosecutor to inject personal beliefs about the evidence into            closing argument." (citations  omitted).   Although there  is            perhaps  a heavier  burden on  prosecutors, the  rule applies            both  ways.   In  United  States v.  Young, 470  U.S.  1, 8-9                              ______________     _____            (1985),  the   Court  said,   "Defense   counsel,  like   the            prosecutor, must refrain  from interjecting personal  beliefs            into  the presentation  of  his  case." (citations  omitted).            Strict application  of this  rule in  the course  of extended            argument, resulting in constant "I suggest  to you that . . .            " "I ask you  to find . . . " becomes tiresome.  We have been            content with the court,  in its discretion, substituting "the            standard  instruction  that  arguments  of  counsel  are  not                                         -3-            evidence."  United  States v.  Bennett, 75 F.3d  40, 46  (1st                        ______________     _______            Cir.  1996), petition for  cert. filed, __  U.S.L.W. __ (U.S.                         ________ ___  _____ _____            Jun. 5,  1996) (No.  95-9237).   There the  prosecutor stated            that a defense argument was a "diversion."  We were satisfied            with the  court's giving  that instruction.   We  are equally            satisfied here.                      Bennett,  in  fact,  is  even more  helpful.    The                      _______            prosecution  there  had  asserted  that  one  of  defendant's            arguments "doesn't pass the laugh test."  We accepted that as            within the ordinary "rough and tumble," and not violating the            prosecutor's duty  "to refrain  from  impugning, directly  or            through implication, the integrity  or institutional role  of            defense counsel."  Id.                                ___                       Even without Bennett the prosecutor's  conduct was                                    _______            unexceptional  for  there  is   another  rule.    As  against            defendant's   citation  of   the  oft-quoted   adjuration  to            prosecutors in  Berger  v. United  States,  295 U.S.  78,  88                            ______     ______________            (1935),  defendant  fails to  note  the  Court's more  recent            observation:                           [I]f  the prosecutor's  remarks were                      "invited," and did  no more than  respond                      substantially  in  order  to  "right  the                      scale," such comments  would not  warrant                      reversing a conviction.            United States  v. Young, 470  U.S. at 14  (footnote omitted).            _____________     _____            After defendant's oratorical charges, five times repeated, it            scarcely lay in his mouth to object to a single reply in like                                         -4-            tone.   United  States v.  Whiting, 28  F.3d 1296,  1303 (1st                    ______________     _______            Cir.), cert. denied,  ___ U.S.  ___, 115 S.  Ct. 378  (1994);                   _____ ______            United  States v. Nickens, 955 F.2d 112 at 122; United States            ______________    _______                       _____________            v. Maccini,  721 F.2d 840, 846 (1st  Cir. 1983).  Even tested               _______            as simple error this claim is frivolous.                      Second, defendant maintains that the court erred in            restricting his closing argument, thereby ensuring conviction            on  Count 57, one of two extortion charges.  Specifically, he            contends  he  was  precluded from  arguing  to  the  jury the            prosecution's failure  to introduce evidence  promised in its            opening statement.                      During his opening, the  prosecutor, in an  attempt            to describe the defendant's  collection methodology, told the            jury it would hear evidence that:                           One night [Grabiec] even barged into                      Mr. Gagliardi's home in a frenzy, grabbed                      his wallet, cut up Mr. Gagliardi's credit                      cards  in front  of Mr.  Gagliardi's wife                      and  children.   I  suggest to  you  that                      there can be nothing more terrifying than                      having  somebody come  into your  home in                      front of your wife and children and doing                      something like that.            While Gagliardi  did eventually testify to  a nighttime visit            from the defendant that left  him feeling "very, very upset,"            he  also  testified that  he  had never  been  threatened nor            intimidated.    When the  government  sought  to introduce  a            portion of a tape of monitored conversations between Grabiec,                                         -5-            Gagliardi  and others  contradicting  Gagliardi's  denial  of            intimidation,2  the  trial  judge  sustained  the defendant's            objection and excluded the evidence.                      The defendant, in  his closing argument,  sought to            seize  the moment  by  reminding the  jury,  "In the  opening            statement, Mr. Wyshak said to you that  there was going to be            evidence that in the  middle of the night Mr.  Grabiec barged            into the home  of Mr.  Gagliardi and was  threatening him  in            front--," at  which point the prosecutor objected.  The court            sustained the objection and cautioned the jury that it "heard            what was said and you  will take your own memory both  of the            arguments  and  of the  evidence  rather  than what  opposing            counsel says the  other counsel  said."    Defendant did  not            attempt to rephrase  his argument  nor did he  object to  the            ruling  or  request   a  curative  statement  regarding   the            prosecutor's opening statement.                      After the verdict, during a colloquy concerning the            question of defendant's immediate detention under 18 U.S.C.              3143(a)(2), defendant  contended that  he had been  prevented            from  making, what  was in  his  view, a  legitimate argument            during summation that was directly relevant to his conviction            on the  extortion count.  The prosecution  responded that the            restriction was  proper  because "essentially  defendant  was                                            ____________________            2.  On the  tape, Gagliardi stated that  "[Grabiec] came into            my house  and he was  fucking terrorizing me  in front of  my            wife."                                          -6-            trying  to   impugn  the  integrity  of   the  Government  by            commenting on the  fact that they didn't hear  evidence which            the defendant on its own motion  asked not to be heard by the            jury. . . ."                      After reviewing the transcript, the court observed:                           [I]t  was  that  middle-of-the-night                      charge   that   triggered  my   immediate                      ruling: "Objection sustained."   There is                      a  lot of  difference  between saying  he                      barged  in in  a frenzy  in front  of his                      wife at night, cut  up his credit  cards,                      and saying he barged  in in the middle of                      the  night.   That carries  an impression                      after  everybody's gone  to  bed.    It's                      quite a different charge.   And if you're                      going to quote the other side's argument,                      you need to be accurate about it.                      Defendant argues that his Sixth Amendment  right to            assistance of counsel was violated by the court's restriction            of his closing argument.   See Herring v. New York, 422  U.S.                                       ___ _______    ________            853  (1975).    Had  the  jury  been  able  to  consider  the            government's failure to produce  this evidence, he maintains,            it  would not have convicted  on this extortion  charge as it            had not  convicted on  the parallel charge  involving another            victim.                      The government, while  maintaining that its  reason            for  objecting  was   valid,  adds  that   defense  counsel's            mischaracterization  warranted the  court's action.   Because            defendant  failed to object to the court's ruling and did not            attempt  to rephrase his  argument, we again  review only for            "plain error,"  requiring him to  "show an obvious  and clear                                         -7-                                          7            error  under  current  law  that   affected  his  substantial            rights."  United  States v.  Phaneuf, 91 F.3d  255, 263  (1st                      ______________     _______            Cir.  1996); United States v.  Procopio, 88 F.3d  21, 31 (1st                         _____________     ________            Cir. 1996); United  States v.  Gilberg, 75 F.3d  15, 18  (1st                        ______________     _______            Cir. 1996) (citations omitted).                      Under the Sixth Amendment,  a defendant is entitled            to the  assistance of  counsel, including  the delivery of  a            closing argument which is "a  basic element of the  adversary            factfinding process  in a criminal trial."  Herring, 422 U.S.                                                        _______            at  858.  The court,  however, has broad  discretion over the            scope of summations.  Id. at  862; United States v. Wood, 982                                  ___          _____________    ____            F.2d 1,  4 (1st Cir.  1992); United States v.  Coast of Maine                                         _____________     ______________            Lobster Co.,  557 F.2d 905 (1st Cir.), cert. denied, 434 U.S.            ___________                            _____ ______            862 (1977); United States  v. Wilbur, 545 F.2d 764,  767 (1st                        _____________     ______            Cir. 1976).  Here the court upheld the government's objection            because,  in  its  opinion,  defendant  mischaracterized  the            prosecution's  opening  statement.    There  is  a difference            between "middle of the night" and "one night;" in the context            of "barging in," the former carries more of an aura of menace            than the  latter.   To  disallow  a deviation  from  opposing            counsel's statement  was well within the  court's discretion.            Moreover, contemporaneous instruction to  the jury to use its            "own  memory"  of  the  arguments and  evidence  rather  than            counsels'  representations, in  no way  constrained defendant            from   continuing   properly  with   his   argument,  without                                         -8-                                          8            paraphrasing opposing  counsel.   We find  no error plain  or            otherwise.                      Affirmed.                      ________                                         -9-                                          9
