
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2018                                    UNITED STATES,                                      Appellee,                                          v.                                 RAYMOND MORENO, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Lawrence P.  Murray with  whom  Henry F.  Owens, III  and Owens  &            ___________________             ____________________      ________        Associates were on brief for appellant.        __________            Ralph F. Boyd,  Jr., Assistant  United States Attorney, with  whom            __________________        A. John  Pappalardo, United  States Attorney, and  Michael J.  Pelgro,        _ _________________                                __________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                     May 6, 1993                                 ____________________                 BOUDIN, Circuit Judge.   Defendant Raymond Moreno,  Jr.,                         _____________            appeals his  conviction in the district  court for possession            of  an unregistered  firearm,  26 U.S.C.     5861(d), and  of            ammunition  by  a convicted  felon,  18  U.S.C.    922(g)(1).            Moreno  argues  that  evidence  was lacking  to  support  the            verdict;  that   the  court   erred  in  admitting   what  he            characterizes  as  evidence of  "prior  bad  acts;" and  that            comments by the  prosecutors to  the jury deprived  him of  a            fair  trial.  For the reasons that follow, we affirm Moreno's            convictions.                                          I.                 Moreno  first  argues  that the  evidence  introduced at            trial was  insufficient.  Our inquiry  is a limited  one:  to            decide whether there was evidence from which a rational trier            of  fact could have concluded beyond  a reasonable doubt that            Moreno possessed the firearm  and the ammunition.  Legitimate            inferences  must  be  drawn,  and  credibility determinations            resolved,  in favor  of the  verdict.   See United  States v.                                                    ___ _________________            Anguilo, 897 F.2d 1169, 1197 (1st Cir.), cert. denied, 111 S.            _______                                  ____  ______            Ct. 130 (1990).                 From   the  government's   evidence  at   trial  (Moreno            presented no evidence  of his own),  a reasonable jury  could            have found the following.  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,                                         -2-                                         -2-            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 their parked cruisers.                 As the  three officers were running  down Hammond Street            in  the direction  of the  shots, they  observed  three black            males,  all  wearing  black  hooded sweatshirts  or  jackets,            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.   There  was  only  the  briefest interval  when  the            defendants together  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 the same            three men running through a parking lot behind the cluster of            buildings, and gave chase.                   The officers then 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 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                                         -3-                                         -3-            off  through a grass courtyard.  The individual who passed on            the   object  immediately  stopped,   raised  his   arms  and            surrendered.   That  individual was  later identified  as the            defendant, Raymond Moreno, Jr.                 Officer Garvey,  in order to  cut off any  escape route,            had  circled  around  to  the  opposite  end  of   the  grass            courtyard.   Officer Garvey soon  saw a black  male wearing a            black hooded sweatshirt enter the courtyard from  the area in            which Moreno had just  been arrested.  After telling  the man            several  times to  stop, Officer  Garvey saw  the man  make a            gesture as if to throw an object aside, and then heard a soft            thud  on the  ground  nearby.    The  man  was  arrested  and            identified as  Frederick Hardy,  who was tried  and convicted            along  with Moreno  but is  not a  party to  this appeal.   A            search of the area  revealed a .32 caliber pistol  about five            to  eight feet from where Hardy stopped and made the throwing            gesture.                 When arrested,  Hardy was not in possession of the foot-            long  object  that the  officers  had seen  him  receive from            Moreno.  The officers then searched the path between the area            of Moreno's arrest and the spot at which Officer Garvey first            observed Hardy.   Hidden in bushes  along that direct  route,            the officers found a double-barrelled sawed-off  shotgun with            a 12  1/2 inch barrel, fully loaded with ammunition.  This is                                         -4-                                         -4-            the firearm and  ammunition which Moreno  is charged in  this            case with having possessed.                 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,  sweating and  out  of breath  and            wearing  a black  hooded sweatshirt,  hiding in  some bushes.            After arresting the individual and placing him  in a cruiser,            Officer Devane  found a  semi-automatic pistol on  the ground            near where the individual had been hiding.  The pistol was in            the  lock-back position, smelled of gunpowder, and was out of            ammunition, indicating  that it recently had been discharged.            The arrested individual was identified as Steven Fernandes.                 Several officers  then went back to  a central courtyard            in  the  middle  of  the  Lenox  Housing  Development.   This            courtyard was in the general area of the gunshots, and it was            immediately accessible from the spot where the three arrested            men were first observed  by the officers.  In  the courtyard,            the officers found discharged cartridge casings.  These spent            casings were  matched by  a ballistics expert  to the  pistol            that was found next to Stephen Fernandes.                 At the  police station  after his arrest,  Moreno, after            receiving his Miranda warning, denied knowing either Hardy or                          _______            Fernandes.  He claimed that he had been standing alone in the            housing development when he  heard shots and started running.                                         -5-                                         -5-            At  trial, however,  a  resident of  the housing  development            testified that  he had  seen Moreno together  with Hardy  and            Fernandes  a number  of  times  over  the  prior  year.    In            addition, Officer Dreary of  the Boston Police testified that            in March 1991 he stopped a  red Isuzu Trooper; Hardy was  the            driver and Moreno was a passenger in the front seat.                 We  think  a reasonable  jury  could  conclude beyond  a            reasonable doubt from this evidence that Moreno possessed the            sawed-off  shotgun  and  its  ammunition.    Officer  Perkins            testified that he "saw [the two men] meet and . . . could see            them  having some  kind of  exchange," but  he was  not close            enough  to describe  the  object.   Officer  Murphy, who  was            closer to the men, did observe the object--which he described            as "about a foot and a half [long]" and "dark  in color."  It            was  found directly in the path Hardy took after the exchange            with  Moreno, prior  to his  apprehension by  Officer Garvey.            Once the police testimony  is credited, Moreno is effectively            tied to the loaded shotgun.                   The direct evidence as to the  shotgun was reinforced by            other  evidence.   First,  Moreno  and  the individuals  seen            running away were  fleeing from  an area in  which shots  had            been fired--shots that the jury could infer had been fired by            one of  the group, since  a pistol  belonging to  one of  the            three  matched  shell  casings  found  in  the  area  of  the            gunshots.  Second,  Moreno's false denial after his arrest of                                         -6-                                         -6-            a  prior relationship  with  Hardy and  Fernandes suggests  a            guilty  mind and helps rebut any inference that he was merely            in wrong place at wrong time.  The direct evidence, bolstered            by  these  secondary  inferences,  was more  than  enough  to            support the jury's verdict.                                         II.                 Next, Moreno argues that the trial court committed error            by  allowing  the government  to  introduce  evidence of  the            gunshots heard  by the officers prior to Moreno's arrest, the            semi-automatic  pistol found  with  Fernandes and  the  spent            shell casings matching that  pistol.  Describing the evidence            as proof of "other crimes" under Fed. R. Evid. 404(b), Moreno            argues that this  evidence related only  to his character  or            propensity  to commit  crime  rather than  to any  legitimate            issue in the  case.   Rule 404(b) provides  that evidence  of            "other crimes,  wrongs or  acts" is  not admissible to  prove            "the  character  of  a person  in  order  to  show action  in            conformity  therewith."   Such  evidence  is not  prohibited,            however,  if  offered for  "other purposes."   Fed.  R. Evid.            404(b).  See United States v. Rodriguez-Estrada, 877 F.2d 153                     ___ __________________________________            (1st Cir. 1989).                 In this case, the government's evidence of the gunshots,            Fernandes' pistol, the matching spent ammunition, and Hardy's            weapon  supports a  chain  of inferences  independent of  any            tendency of the evidence to show bad character.  The evidence                                         -7-                                         -7-            permits the  inference that Fernandes, with  Hardy and Moreno            in   attendance,  was  the   individual  who  discharged  the            gunshots, and that  the three men were  running together from            the  scene of  that  discharge  when  first observed  by  the            officers.  In turn,  the facts that Fernandes and  Hardy were            armed  and that  the  three men  were fleeing  together after            Fernandes had  discharged three rounds of  ammunition made it            somewhat  more likely that the object Moreno was seen to pass            along  to Hardy  was indeed  the shotgun later  found nearby.            See, e.g., United  States v.  Currier, 821 F.2d  52, 55  (1st            ___  ____  ______________     _______            Cir.  1987) (the  proffered evidence  of  other bad  acts was            "closely intertwined  with the charged offense of possession,            providing both significant contextual material and proof that            the defendant possessed the gun").                 An  example   may  be  of  help   in  understanding  the            inference.  If a defendant were charged with shooting a guard            in  the  course  of  a  bank  robbery,  it  would  surely  be            permissible to show that he was caught fleeing from the scene            of  a  just-robbed  bank  with  two other  persons  who  both            possessed weapons.   The  defendant could certainly  argue to            the  jury that he was  an innocent bystander  who was fleeing            from a dangerous scene.  But the fact of the bank robbery and            the possession  of the weapons by  others arguably associated            with the defendant would surely be relevant evidence that the            jury  could consider  along with  other evidence  against the                                         -8-                                         -8-            defendant.   If the  other evidence included  some eyewitness            testimony  that the defendant had run with the others and had            appeared to be carrying a weapon,  the facts would not be far            from our case.                 Indeed, not  only are  the gun  shots and  other weapons            relevant  to the  government's  case against  Moreno but  the            ordinary  risks   presented  by  Rule  404(b)   evidence  are            especially tame in this  case.  The hand-guns were  not found            with  Moreno but with other defendants and the gun shots were            apparently fired by Fernandes.   In other words  the evidence            suggested "other crimes"  not by Moreno but by  Fernandes and            Hardy.  The usual taint  of "other crimes" evidence--the risk            that the jury will think  the defendant a bad man  because he            committed other crimes--was, so  far as it threatened Moreno,            largely  absent.    If  the  jury  otherwise  thought him  an            innocent  bystander, it had no reason to attribute to him the            crimes of Fernandes and Hardy.                 Of course, if the jury accepted the officers' testimony,            it could conclude that Moreno was  not a bystander innocently            fleeing  from danger but rather was associated with the other            defendants,  had run with them, had handed off his own weapon                                 ____            to Hardy, and had after his arrest falsely denied knowing the            other two.   If so,  the evidence of  gunshots furnished  the            occasion and context for the flight by all  three defendants;            and  the  weapons possessed  by the  other  two made  it more                                         -9-                                         -9-            likely, if only slightly, that Moreno too might be armed.  At            least the  jury  was entitled  to  consider the  evidence  of            gunshots and  other weapons  and draw  such inferences  if it            chose to do so.                  In  short,  the evidence  was  clearly  admissible on  a            theory entirely  separate from any  light it might  cast upon            Moreno's "character."  Whether the relevance of such evidence            is substantially  outweighed by  its prejudicial effect  is a            judgment  largely within  the broad  discretion of  the trial            judge.  Fed. R.  Evid. 403; United States v.  Simon, 842 F.2d                                        _____________     _____            552, 553 (1st Cir. 1988).  A defendant is entitled on request            to a limiting instruction,  warning the jury not to  draw the            forbidden  inference of  bad character.   Fed. R.  Evid. 105.            Moreno's  counsel  in   this  case  did  not   seek  such  an            instruction, requesting  only a far  broader one to  which he            was not entitled.1                                         III.                 The  most  troubling  aspect  of  this  appeal  concerns            statements  made by  the  government during  argument to  the            jury.   In his opening remarks, the prosecutor stated, "[T]he            evidence  will show  that  [the police  officers] were  doing                                            ____________________                 1Asked what limiting instruction he would like, Moreno's            counsel  asked for  one  telling the  jury  that evidence  of            Fernandes' pistol and the  spent shell casings "is not  to be            considered against the case of Mr. Moreno" or  "in no way can            be used by  this jury"  against Moreno.   Since the  evidence            could  properly be  used against  Moreno, the  district court            quite properly refused this instruction.                                         -10-                                         -10-            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."                 There  was, of  course,  no  evidence  in this  case  of            "senseless violence" or "shootings  and killings," and it was            patently improper for the prosecutor to make these remarks to            the jury.   The argument, playing  upon the jury's  emotional            reaction to neighborhood violence,  was outside the bounds of            legitimate  argument  and cannot  be  condoned.   See  United                                                              ___  ______            States  v.  Johnson,  952  F.2d  565,  574  (1st  Cir.  1991)            ______      _______            (admonishing  "prosecutorial  commentary  serving no  purpose            other  than to  inflame the  passions and  prejudices of  the            jury,  and  to interject  issues  broader than  the  guilt or            innocence of the accused"  (citations and internal quotations            omitted)), cert. denied, 113 S. Ct. 58 (1992).                       ____  ______                 We do not believe,  however, that reversal is warranted.            The  experienced trial judge, who was in the best position to            appraise the prejudicial  impact of the  prosecutor's remark,            thought  a curative  instruction  the correct  remedy.   When            objection was made,  at the end of the  prosecutor's opening,            the trial judge forcefully cautioned the jury:                 I must give you some instructions to disregard some                 of  the  things  that  were  said  in  the  opening                 statement.   There were  references to  violence in                 the area, to other incidents in the area than those                 that  are the subject matter of this trial.  I will                 instruct you to disregard  all of those references.                 Some were made very early in the opening statement,                 others were made in the course of it and toward the                                         -11-                                         -11-                 end of the opening  statement.  We are here  to try                 on the evidence with respect to the charges against                 these  defendants, only  the charges  against these                 defendants.    It  is  not  your  function  or  the                 function  of  the  court   or  anyone  else  to  be                 concerned about  anything  other than  the  charges                 against these defendants  and the evidence  bearing                 upon  that.   You  will erase  from  your mind  the                 arguments  about  other  violence,  and  the phrase                 "senseless  killings"  was  used.    Those are  not                 matters to  be considered by  you as you  weigh and                 evaluate the evidence that relates to this case.            We think that  this powerful and  contemporaneous instruction            was  adequate   to  dispel   any  prejudice  caused   by  the            prosecutor's remarks.   See United  States v. Giry,  818 F.2d                                    ___ ______________________            120, 134 (1st Cir.), cert. denied, 484 U.S. 855 (1987).                                 ____  ______                 What  is  no less  disturbing  is that,  even  after the            warning  embodied by this  instruction, the  prosecutor again            departed from the straight and narrow in his closing.  In the            course of arguing that  the shotgun was not just  tossed away            but   deliberately   concealed,  the   prosecutor--apparently            carried away--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."   The court then  gave a lengthy  curative instruction,            and the case  proceeded.  The curative instruction was rather            oblique  on this  issue  but  it  was  lengthy,  and  we  are                                         -12-                                         -12-            satisfied  that the jury got  the message to  ignore what had            just been said.2                 If  we thought  that this  second foray  was deliberate,            there might  well be a basis for  reversal as a deterrent for            the  future, see United States  v. Capone, 683  582, 586 (1st                         ___ _____________     ______            Cir.  1982), even though this remark  did not directly relate            to  Moreno for nothing in  the evidence suggested that Moreno            had carelessly concealed the weapon  where Mr. Hooker or  his            family  might find it; that was the act of another defendant.            In context, however, the  prosecutor's remark does not appear            to have been  a deliberate disregard of the  court's earlier,            implied warning.  Rather,  although improper it was seemingly            a  sudden  expression of  indignation  at the  tail-end  of a            legitimate larger point.                   Finally,  in  appraising possible  prejudice, we  do not            ignore the fact that the case  against Moreno was ample.   As            we  said in Giry, 818  F.2d at 133,  "prejudice that survives                        ____            the charge is deemed less likely to have affected the outcome            of the trial where strong evidence supports the prosecution's            case".  Here, both  judges who join in this  majority opinion            have  independently reviewed  the  transcripts  of the  trial            testimony in this case,  in addition to the briefs;  and both                                            ____________________                 2The judge was, at the same time, cautioning the jury to            give  no  weight to  any personal  opinions expressed  by the            prosecutor, then  or earlier.  After  completing the curative            instruction, the  judge gave  the lawyers the  opportunity to            ask for more, and neither requested any addition.                                         -13-                                         -13-            are satisfied that the  case against Moreno was  quite strong            and that the  objectionable remarks, in context and  in light            of  the instructions given by the trial judge, would not have            swayed the jury.                 As  the  evidence  already  recited  shows,  Moreno  was            directly identified  by two  police officers as  running from            the area after gunshots.  He was seen by one  of the officers            to hand  over a  foot-long object  to a  second man, and  the            sawed-off shotgun in question  was found near the path  where            the  third one had run shortly before he too was apprehended.            This  evidence was  coupled with  other evidence  showing the            possession of  weapons by  Moreno's companions, their  flight            together with  Moreno, and Moreno's denials that  he knew the            other  two--denials  proved  to  be false  by  two  different            witnesses.                 The trial of this  relatively simple case stretched over            10 days.  The  trial time was devoted entirely  to government            evidence, since the defendants  did not testify and presented            no  witnesses of  their  own.    The  government  put  on  21            witnesses, including  five officers  who were present  at the            time that Moreno was pursued and whose key testimony has been            summarized  above.  We also note that, although this does not            excuse  the  government's  missteps,  defense   counsel  made            arguments  before the  jury that  were not  beyond criticism,            including cross-examination  inappropriately injecting racial                                         -14-                                         -14-            issues  into the  case.   In sum,  the government's  case was            substantial and the imperfections in counsel's  rhetoric were            not all on one side.     On  balance,  we are  convinced that            the prosecutor's missteps  did not deprive  Moreno of a  fair            trial or a  just outcome.  The  prosecutor's improper remarks            were by  and large aberrations, met  by prompt countervailing            instructions, in  a 10-day trial that  was otherwise consumed            by a detailed  exposition of  the events of  April 18,  1991.            This court has found  that even more objectionable statements            by prosecutors  did not  warrant reversal where  a corrective            instruction  was given, e.g., Giry, 818 F.2d at 120 (argument                                    ____  ____            comparing charged  drug offenses  to an "agree[ment]  to kill            the judge"), or no  timely objection was made,   e.g., United                                                             ____  ______            States  v. Machor, 879 F.2d  945, 955 (1st  Cir. 1989) (drugs            ______     ______            "poisoning our community, and our kids die because of this"),            cert. denied, 493 U.S. 1094 (1990).  The district court acted            ____  ______            within  its discretion in  this case  in concluding  that the            prosecutor's misstatements did not  so "poison[] the well" as            to require a new  trial.  United States v.  Mejia-Lozano, 829                                      ______________________________            F.2d 268, 274 (1st Cir. 1987).3                                            ____________________                 3We have  reviewed the  other remarks of  the prosecutor            objected to by Moreno, including the distinct claims that the            prosecutor disparaged defense counsel and engaged in improper            expressions of personal belief.  In  some instances, we think            the prosecutor made permissible  arguments and in others, all            milder  than the two discussed in text, we think the curative            instructions given were adequate.                                         -15-                                         -15-                 Nevertheless,  for the  sake of  future cases,  we think            this worth saying:  inflammatory comments to the jury are not            only  bad  tactics in  the case  at  hand but,  especially if            repeated  after warnings,  will exhaust  the patience  of the            court  and   gradually  undermine   the  reputation  of   the            prosecutor's office.   Trials, to  be sure,  are hard  fought            contests  where not  every remark  can be  carefully weighed.            But for the government  in a criminal case, fairness  is more            important than victory.  Although we view the evidence as far            more substantial than does  our dissenting colleague and have            some (but  not blind)  faith in corrective  instructions, the            government would do well to take this warning seriously.                 Affirmed.                 ________                                         -16-                                         -16-               TORRUELLA, Circuit Judge (Dissenting).  With all due respect                          _____________          to my  esteemed colleagues in the majority, I must dissent.  I do          so   reluctantly   because  although   I   disagree   with  their          characterization of the strength  of the evidence against Moreno,          see ante  at 13, I agree that in all probability the jury verdict          ___ ____          would have been the  same sans the breaches committed  during the                                    ____          trial.  My reticence,  however, is not sufficient to  overcome my          perturbation  at what I  perceive to be  the virtual condonation,          with  nary  but  mild  admonitions   on  our  part,  of  repeated          prosecutorial transgressions,  almost to the point  of a pattern.          See,  e.g., United States v. Agudelo, No. 90-1465, 1993 U.S. App.          ___   ____  _____________    _______          LEXIS  4970 (1st  Cir.  March 18,  1993)  (admission of  improper          testimony);   United States v.  Williams, 985 F.2d  634 (1st Cir.                        _____________     ________          1993) (admission  of improper evidence); United  States v. Smith,                                                   ______________    _____          982 F.2d 681 (1st  Cir. 1993) (improper argument by  prosecutor);          United States v. Hodge-Balwing, 952 F.2d 607, 611 (1st Cir. 1991)          _____________    _____________          (improper argument  by prosecutor).   The majority  itself points          out  similar cases  falling  within this  pattern,  but fails  to          appreciate  the extent  of its  perniciousness.   See ante  at 14                                                            ___ ____          (citing Machor, supra,  and Giry, supra, as  examples of "fierce"                  ______  _____       ____  _____          arguments by prosecutors).  Compounding this problem is  the fact          that Rule  404(b)  and  the harmless  error  doctrine  have  been          converted, not to  say subverted,  into a wall  behind which  the          Government apparently can continue ad infinitum to take pot shots                                             ____________          with impunity.                                         -16-                                         -16-               I register my  protest because our  past cautions, timid  as          they were, see, e.g., Agudelo, slip op. at 6 n.7 ("this is not to                     ___  ____  _______          forget our complaint . . . about giving  the government two bites          at the apple:  push for evidence believed to be damning, and then          say it was meaningless");  Williams, slip op. at 8-9  ("to infect                                     ________          and  jeopardize a  prosecution with  such evidence is  unwise and          unjustifiable"),  have  not only  been  ignored,  but alas,  have          probably  encouraged this  continued conduct.    I fear  that the          current warning, ante at 15, although somewhat more forceful than                           ____          those  that  have come  before, is  likely  to further  erode our          institutional credibility, if  the past is any  indication of the          future.    More  importantly,  I believe  that  the  prosecutor's          actions  in  the   present  case  unconstitutionally   prejudiced          Moreno's right to a fair trial.               To  set the  trial in  proper perspective,  a review  of the          facts  is  appropriate.   Three  unidentified  persons were  seen          running from the sound  of gunfire; at some point  thereafter one          of  these persons appeared to pass a one to one-and-one-half foot                            ________          long dark object  to another person who kept on  running with the          unknown object; the passer then stopped running, was arrested (we          know  not for  what  crime at  this  point), and  eventually  was          identified  as Moreno;  a  person later  identified as  Frederick          Hardy,  the receiver of  the unknown object,  was intercepted and          arrested coming  from where Moreno  was detained; Hardy  was seen          throwing  away  an object,  which was  later recovered  and which          turned out  to be a .32 caliber pistol; no other weapon was found                                         -17-                                         -17-          on or near Hardy, but a search of his suspected  route revealed a          loaded, double  barrel, sawed off  shotgun, hidden in  the bushes          along the  direct  path  from  where Moreno  was  arrested;  this          shotgun and its ammunition  are the weapons with which  Moreno is          charged with illegally possessing.                 At trial, the prosecutor  introduced as Rule 404(b) evidence          against Moreno a third  weapon found elsewhere in  the possession                           _____               _________          of a  third individual, Stephen Fern ndes.   This weapon was  a 9                _____          mm. caliber pistol, as well as 10 casings fired from  that weapon          at the scene of the original shooting.               The prosecutor  also  made improper  statements, which  fall          into three groups, at different points.  First,     he     linked          appellant to the  rampant violence in the community, insisting at          opening argument that "the evidence  will show that [the  police]          were doing  their jobs  protecting the  community  that has  been          plagued by violence, senseless violence, shootings and killings."          He continued "[t]hat's why  they were there and that's  why we're          here  today."  The prosecutor referred to the officers as members          of an anti-gang unit  on four occasions, and instructed  the jury          not  to "reward"  the  defendants for  discarding  weapons.   The          prosecutor injected violence at  every opportunity, stating,  for          example,  that  "[i]f you're  walking  down  the  street  with  a          baseball  bat, it's not  illegal to possess  it.  If  you use the          baseball  bat to  bash in  somebody's head, that's  illegal," and          that "Mr. Hooker or his wife orhis three kids might  come out and          look at  the gun and get  their heads blown off."   In describing                                         -18-                                         -18-          the shotgun,  which had  not  been fired,  the prosecutor  argued          "[s]omebody  had to move that  lever, crack open  that barrel and          put those two  shotgun shells  into the shotgun.   Somebody  does          that for a reason.   Just remember that these  three people armed          themselves with three guns."  The prosecutor proceeded "[a]ll you          had  to do  was pull  the trigger.   Think  about going  into the          middle  of  that housing  development  armed  with those  weapons          together and firing one of these weapons."                 Second, the prosecutor improperly vouched for the government          witnesses, intimating that they possessed some information beyond          the evidence  presented.  In discussing  the "cylindrical object"          that appellant  passed on  to another individual,  the prosecutor          warranted  that the  police "knew  what it  was, but  they're not          overstating  their testimony."   He  later asserted  "[t]hey knew          what the object was.  They were going to find it."               Third,   the  prosecutor   urged  the   jury  to   disregard          appellant's counsel  because defense  attorneys "are paid  to see          see  [sic]  things  in  a   different  way."    Furthermore,  the          prosecutor  contended  at  one  point that  defense  counsel  was          "talking  out of  both  sides of  his  mouth."   The  prosecutor,          discussing a defense argument, explained "I'm not quite sure what          that meant, but I would suggest that a part of it was designed to          divert your attention."                  As  the  majority points  out,  the  prosecution's statement          appealing  to  the  jury's  fear  of  neighborhood  violence  was          "patently  improper"  and  "outside  the  bounds  of   legitimate                                         -19-                                         -19-          argument and cannot be condoned."  Id. at pp. 10-11.   "[N]o less                                             ___          disturbing,"  finds  the majority,  is  that  "even after  [being          warned]  the  prosecutor again  departed  from  the straight  and          narrow  in  his closing."    Id. at  12.   This  would  have been                                       ___          sufficient  basis for  "reversal  as a  deterrent," the  majority          tells us, only if "this second foray [had been] deliberate."  Id.                                                                        ___          This  observation is  irrelevant if  the  prosecutor's statements          caused  harm to  defendant, and  harm  undoubtedly was  caused by          these and other statements.               My colleagues place too much faith on the practical value of          the curative instructions given by the trial judge, the second of          which  was   admittedly  "rather   oblique"  as  to   the  matter          objected.4  Id.  at 12;  see also United  States v. Akinola,  No.                      ___          ________ ______________    _______          92-1587  (1st Cir. Feb.  2, 1993) ("it is  the combination of the          trial  judge's  instructions  .   .  .  that  would  render   the          prosecutor's  putative violation  harmless").   Empirical studies          have established  that juries tend to  consider relevant evidence          in a case even when  it is ordered stricken from the record.  See                                                                        ___          Reid Hastie, Steven  D. Penrod and  Nancy Pennington, Inside  the                                                                ___________          Jury  87, 231 (1983).   In fact,  juries are even  more likely to          ____          consider such evidence if admonished by the court not to consider          it, than if  no specific instruction is  given.  See Saul  Kassin                                                           ___                                        ____________________          4  The majority  indicates that they "are satisfied that the jury          got the  message to ignore what had just  been said."  Id. at 12.                                                                 ___          I  would ask  rhetorically what  there is  in the  instruction to          cause such  reassurance.   Certainly nothing in  its obliqueness,          and  I would  think, little  in its length  would commend  such a          conclusion.                                         -20-                                         -20-          and   Lawrence   Wrightsman,   The  American   Jury   On   Trial:                                         __________________________________          Psychological Perspectives 108-09 (1988).   Even more troublesome          __________________________          to  a criminal  defendant  in Moreno's  position are  the studies          indicating  that  juries   tend  to  forget  the  source  of  the          information they remember, and are often unable to recall whether          the source of information came from a witness, or from one of the          attorneys during the opening statement or  closing argument.  Id.                                                                        ___          at 106.   These studies  also show that  juries treat  statements          made  by counsel  in opening  statements as  fact even  though no          evidence is later introduced to support the attorney's assertion.          Id.  Harmful impact  may also result from improper remarks  in an          ___          opening statement, caused by  a psychological phenomenon known as          the  "primacy effect," which is a tendency to make snap judgments          based on information presented early  in the trial.  Id. at  134.                                                               ___          Once  jurors form  a  first impression,  they  often discount  or          reject facts that challenge  their views, and instead  fill their          trial memories in ways that favor their initial reaction.  Id. at                                                                     ___          134-35;   see  also   N. Anderson,  Foundations   of  Information                    _________                 _____________________________          Integration Theory 179-81 (1981).          __________________               Our cases  repeatedly have  ignored the practical  effect of          improper  argument and  evidence  on the  jury  by excusing  such          impropriety as  harmless error  and then chiding  the prosecutor.          See, e.g., Agudelo, supra; Williams, supra; Hodge-Balwing, 952 at          ___  ____  _______  _____  ________         _____________          611 ("we review only 'blockbusters: those errors so shocking that          they   seriously  affect  the   fundamental  fairness  and  basic          integrity  of the  proceedings conducted  below'").   The studies                                         -21-                                         -21-          discussed  above clearly  demonstrate a  common sense  conclusion          with empirical data:  the  prejudicial influence of such argument          and  evidence should not be  easily disregarded in  the manner we          have done,  as it flows more  deeply than we have  assumed.5  The          studies lead  to  one inescapable  conclusion in  regard to  this          case:  there is no way of knowing if the stricken remarks were in          fact  not influential in prejudicing  the jury in  a powerful and          lasting way, and thus tipping the balance against him.               To this prejudice  we add the impact on the  jury of the so-          called 404(b) evidence.  This evidence proffered under the  aegis          of this rule consisted of:  (1) testimony that pistol shots fired                                                         ______          by  unknown  persons  were  heard  by  police  officers prior  to              _______          Moreno's arrest; (2) a 9 mm. caliber pistol that was found on the                                               ______          ground near another individual; and  (3) ten spent shell  casings                      _______          matching  that pistol,  which  were found  near  area from  which                         ______          Moreno and three other men were seen running from after the shots          were heard.  As noted, supra at 15, the 9 mm. pistol was found in                                 _____          possession of a third person, Stephen Fern ndes, who was not even          tried  together with appellant.  All this evidence was allowed as          probative  in establishing  "other  crimes, wrongs  or acts,"  by                                                                         __                                        ____________________          5  Thus, the  "powerful and contemporaneous instruction" referred          to  by the  majority, ante  at 11,  was indeed  such, but  not as                                ____          intended.   It served to  remind the jury  "about other violence"          and senseless killings.  Id.                                   ___             Indeed,  these  studies   starkly  reveal  the  dilemma   that          attorney's face in this area of the law.  They must choose either          to ask for a  curative instruction, increasing the impact  of the          improper argument  or evidence, or  remain silent, in  which case          they  waive the issue on appeal, see United States v. Tejeda, 974                                           ___ _____________    ______          F.2d 210, 215 (1st Cir. 1992).                                         -22-                                         -22-          Moreno, with  regard to  charges  that he  illegally possessed  a          ______                                 __          loaded  sawed-off  shotgun.    This is  claimed  to  be  evidence          __________________________          unrelated to Moreno's character or propensity to commit crime and          thus admissible  for  nebulous "other  purposes."   Fed. R. Evid.          404(b).               This is clearly improper  use of Rule 404(b).   The evidence          was not  even proof  of wrongful  acts by Moreno,  but, at  best,                                                 _________          evidence  of other  wrongful acts  by  third persons  in Moreno's                                             _________________          presence.    Because Rule  404(b)  should  only be  invoked  when          prosecutors  seek  to  introduce   evidence  of  prior  bad  acts          committed  by the defendant, it is error to analyze this evidence          under that rule.   United States v. Moccia, 681  F.2d 61, 63 (1st                             _____________    ______          Cir. 1982)  (Breyer, C.J.) (Rule 404(b)  forbids prosecution from          "asking  the jury to  infer from the fact  that the defendant has                                                          _____________          committed  a bad act in the past, that he has a bad character and          therefore  is more  likely  to have  committed  the bad  act  now          charged")  (emphasis added).   The proper inquiry  is whether the          evidence is  relevant, and  whether it  is more  prejudicial than          probative.  The  correct answer to the first question  is no, and          the answer to the second is yes.               At  best  the  evidence   shows  mere  presence  during  the          commission of other crimes by other persons.  It asks the jury to                        ____________    _____________          conclude  that appellant somehow was guilty of that crime, and by          extension,  guilty  of  the  current  crime.    Appellant's  mere          presence  at the  scene  of  that  crime,  of  course,  does  not          establish  appellant's guilt of that crime.  See United States v.                                                       ___ _____________                                         -23-                                         -23-          Aponte-Su rez, 905 F.2d 483, 491 (1st Cir.) (mere presence at the          _____________          scene of a crime and  knowledge that a crime was to  be committed          is  not proof of  guilt), cert. denied, 498  U.S. 990 (1990); see                                    ____________                        ___          also Nye  & Nissen v.  United States, 336  U.S. 613, 619  (1949).          ____ _____________     _____________          Furthermore, and  with all  due respect, concluding  that persons          present at the scene  of a shooting, and thereafter  fleeing, are          more likely  to be carrying weapons  is highly illogical.   It is          just as likely that persons fleeing  the scene of a shooting will          be either unarmed victims or by-standers, and in fact, it is more          probable that they would have more  of an incentive to flee,  and          faster, precisely because they were unarmed.  Thus, the inference                                              __          that it is more likely that appellant is guilty of the  felon-in-          possession crime because he was fleeing from the scene of another          crime committed by other persons is insupportable.   The evidence          is constitutionally and factually irrelevant.               Even if the evidence was relevant, its probative value pales          in comparison  to its  prejudicial effect.   Any probative  value          that the  evidence may  have stems  from extended  inferences and          speculation about  the probabilities of  people carrying weapons.          Inferences and  speculation, however, are infected  too easily in          this case by the transference of guilt from the shooting of a gun          by a third  party to  the charged crime  of possession,  ensuring          that a jury will  draw all doubt  against appellant.  See  United                                                                ___  ______          States v. St. Michael's Credit Union, 880 F.2d 579, 602 (1st Cir.          ______    __________________________          1989)  (danger  that jury  might convict  defendant on  theory of          guilt  by  association).    When  added  to  the  impact  of  the                                         -24-                                         -24-          prosecutor's  improper argument concerning senseless killings and          community violence, the prejudicial impact becomes manifest.  The          majority opinion chooses to ignore the prejudicial effect of this          evidence,   concluding  that  the   defense  somehow  waived  any          consideration of the issue.               Lastly,  let us return to the trial itself, and consider the          overall impact of these  breaches.  I have already  conceded that          even without  the Rule 404(b) evidence,  appellant probably would          not  withstand a  Rule 29  motion.   The evidence  concerning the          cylindrical object and  the shotgun is  perfectly valid, and  one          can conclude that  the charged  possession of a  shotgun in  fact          occurred from it.   The  conclusion can only  be reached  through          extended  inferences, though,  because no witness  testified that          they actually saw Moreno with the weapon, but only that he passed          something  to someone  who  was later  found  nearby the  weapon.          Given  the  prejudice  already  infused  into the  trial  by  the          improper  argument and  evidence,  I do  not  see how  it can  be          discounted   that  the   required   inferences  supporting   this          conclusion were not themselves infected.  In all likelihood  this          prejudice  would  make the  jury  more  predisposed to  draw  the          required inferences against appellant,  thus tipping the  balance          against him.               What we have here is a vulnerable case requiring the jury to          make substantial inferences in order to convict.  The prosecution          beefed  up  its case  by clearly  improper statements  at crucial          stages of the trial, and threw in pseudo 404(b) evidence for good                                         -25-                                         -25-          measure.   Although the defendant did not  create this situation,          he is asked to assume  all the risks it generates.   Somehow this          is not my  idea of a  fair trial.   It contradicts all logic  and          practical experience.  It  is past  due  that this  court send  a          clear message  regarding  the standards  that are  expected of  a          litigator whose motto is that "[t]he United States wins its point          whenever justice  is done  its citizens  in the courts."   It  is          better that this message be given in this case  than in a case of          more societal consequence.               This  appellant did not get a just  trial.  A new one should          be ordered.                                         -26-                                         -26-
