
USCA1 Opinion

	




          March 2, 1993                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2123                                    UNITED STATES,                                      Appellee,                                          v.                                 BARRY L. WEINSTEIN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                          _____________                                 ____________________            Joseph J.  Balliro with  whom Balliro,  Mondano &  Balliro was  on            __________________            ____________________________        brief for appellant.            Despena  Fillios Billings, Assistant  United States Attorney, with            _________________________        whom  A. John  Pappalardo, United  States Attorney,  was on  brief for              ___________________        appellee.                                 ____________________                                 ____________________                      STAHL, Circuit Judge.   In  this appeal,  defendant                             _____________            Barry L.  Weinstein  challenges his  conviction  for  knowing            receipt of stolen property, and for conspiracy to commit that            crime.   Specifically,  defendant argues  that his  trial was            unfairly  prejudiced   by  certain   comments  made  by   the            government  in  its closing  argument,  and  by the  district            court's  charge  to  the  jury.    Finding  the  government's            comments  to be  harmless  error, and  the jury  instructions            proper, we affirm.                                          I.                                          I.                                          __                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND                                  __________________                      The government's evidence in  this case shows  that            in February of 1991, Michael Flatt, accompanied by a  friend,            broke into  a safe in  a private  home in Dallas,  Texas, and            stole approximately 26 items of jewelry.  The purloined items            had a total resale value between $85,000 and $134,000.  Flatt            packaged  the pieces and sent them via Federal Express to his            home in  Boston, Massachusetts.   Upon his return  to Boston,            Flatt sought to have  some of the jewelry appraised.  He took            three examples of the loot to "Roy K. Eyges, Inc.," a jewelry            store  in Boston,  where he  was introduced  to defendant,  a            jewelry appraiser employed at the store.                       Flatt told  defendant  that he  had  inherited  the            jewelry  and that  he was interested  in selling it.   In the            privacy  of defendant's  office, defendant indicated  that he                                         -2-                                          2            was interested in helping Flatt sell the jewelry, but that he            wanted to do  so independently  of his employer,  so that  he            could  obtain  a  commission on  the  sale.    At this  first            meeting, defendant suggested that he and Flatt transact their            business in cash.                         The  following weekend,  defendant met  with Flatt,            and was given several  pieces of the  jewelry to sell.   Some            days later, by arrangement,  the two met in a  public parking            garage,  where defendant  gave Flatt  a paper  bag containing            between $7,000 and $9,000  in cash obtained from the  sale of            unspecified pieces of the stolen jewelry.                        At this meeting, defendant  asked about the  source            of the jewelry.   Flatt advised defendant that he  had stolen            the jewelry from Texas.  Defendant said that he had suspected            that the jewelry was stolen.   He also told Flatt that he had            checked to see if  the jewelry had been reported  stolen, and            that it had not been so reported.                        Several days later, again by arrangement, defendant            and  Flatt met in defendant's  car on a  designated street in            Boston.    Defendant  informed  Flatt that  defendant  and  a            partner,  co-defendant  Eric  Bleiler,1  were  attempting  to            raise  money in order to purchase some of the pieces outright            from  Flatt.     At   that  meeting,  Flatt   gave  defendant                                            ____________________            1.  At trial,  Bleiler was  acquitted of all  charges against            him.                                         -3-                                          3            approximately  ten  additional pieces  of  stolen  jewelry to            sell.                      In  the course  of subsequent  phone conversations,            defendant told  Flatt that his partner Bleiler  had more cash            for  Flatt from  the sale  of some  of the jewelry,  and that            defendant could pick up the cash at Bleiler's shop in Newton,            Massachusetts, outside  of Boston.   Flatt went  to Bleiler's            shop  and  was given  a  paper  bag containing  approximately            $9,000 in cash.                        Shortly after  his visit to  Bleiler's shop,  Flatt            left Boston  to live  in San Francisco.   Defendant  notified            Flatt by  phone that  he was  interested in  doing additional            business with Flatt, and that he had $15,000 more in cash for            Flatt  from  the sale  of  additional  pieces of  the  stolen            jewelry.  Flatt requested that defendant send him the cash in            San Francisco  via Federal  Express.  Before  receiving these            last proceeds from the sale  of the purloined jewelry,  Flatt            was arrested in San  Francisco in connection with the  Dallas            burglary.2  After his arrest, Flatt  signed a written consent            form allowing the San Francisco Police Department to open his            mail.    On   April  24,  1991,  the   San  Francisco  Police            intercepted  and opened  a  package addressed  to Flatt  from            defendant which contained $15,100 in cash.                                            ____________________            2.  In  separate proceedings,  Flatt was  convicted on  state            charges  of burglary  and  on federal  charges of  interstate            transportation of stolen property.                                         -4-                                          4                      Shortly  thereafter,  defendant  was  arrested  and            charged  with one count of knowing receipt of stolen property            in  violation  of  18  U.S.C.     2315,3  and  one  count  of            conspiracy to commit that  crime in violation of 18  U.S.C.              371.4  After  a five-day jury trial,  defendant was convicted            on  both  counts.    From these  convictions,  defendant  now            appeals.                                           II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      On  appeal, defendant  argues  that certain  of the            government's  comments during closing  argument were unfairly            prejudicial.   Defendant also  challenges one of  the court's            instructions  to the jury.  We address each argument in turn.                                            ____________________            3.  18 U.S.C.   2315 states in relevant part:                 Whoever  receives,   possesses,  conceals,  stores,                 barters, sells, or disposes of any goods, wares, or                 merchandise, securities,  or money of  the value of                 $5,000 or more . . . which have  crossed a State or                 United   States   boundary   after  being   stolen,                 unlawfully converted, or taken, knowing the same to                 have been  stolen, unlawfully converted, or taken .                 . .  [s]hall  be fined  not  more than  $10,000  or                 imprisoned not more than ten years, or both.            4.  18 U.S.C.   371 states in relevant part:                 If two or more persons conspire . . . to commit any                 offense  against the United States . . . and one or                 more  of  such persons  do  any act  to  effect the                 object of  the conspiracy, each shall  be fined not                 more than $10,000 or  imprisoned not more than five                 years, or both.                                          -5-                                          5            A.  Government's Comments During Closing Argument            A.  Government's Comments During Closing Argument            _________________________________________________                      The  following  colloquy  took  place   during  the            government's closing argument:                      Government:    [Defendants]  are not,  as                      [defense  counsel] argued  to you  in his                      opening,  sitting  the[re]  clothed in  a                      mant[le] of innocence and I am asking you                      --                      The Court:  Oh, yes, they are.                      Defendant's counsel:  Objection.                      Co-defendant's counsel:  Objection.                      The Court:  They  are indeed clothed in a                      mant[le] of innocence.  They stand before                      you  now -- sit before you now absolutely                      and  totally  innocent.     They   remain                      innocent until the government proves them                      guilty beyond a reasonable doubt.              Defendant  argues that  the  government's statement  had  the            effect of denying him the presumption  of innocence, and that            the  comment was  sufficiently prejudicial  to warrant  a new            trial.  We disagree.                      The prejudicial statements of a prosecutor at trial            are subject to a  harmless error analysis.  United  States v.                                                        ______________            Hasting,  461  U.S. 499,  507-509  (1983);  United States  v.            _______                                     _____________            Brown, 938 F.2d 1482,  1489 (1st Cir.), cert. denied,  112 S.            _____                                   ____  ______            Ct.  611 (1991).  Convictions will therefore not be set aside            "for  small  errors  or defects  that  have  little,  if any,            likelihood  of  having changed  the  result  of the  trial.'"            Hasting,  461 U.S. at 508 (quoting Chapman v. California, 386            _______                            _______    __________            U.S. 18, 22 (1967)).                                           -6-                                          6                      In  determining  whether  prosecutorial  misconduct            rises  above the level  of harmless error,  "`we consider the            severity  of the  misconduct,  whether it  was deliberate  or            accidental,  the likely  effect of the  curative instruction,            and  the strength  of  the  evidence  against  appellant[].'"            Brown,  938 F.2d at 1489  (quoting United States  v. Cox, 752            _____                              _____________     ___            F.2d 741, 745 (1st Cir. 1985)).                        Having carefully considered all of  the factors set            forth in Brown, it is  our opinion that the likely effect  of                     _____            the  district court's  strong,  correct  and  contemporaneous            curative  instruction, when  combined with the  court's final            charge,5 was that the jury  remained properly apprised of the            presumption   of   innocence,   despite    the   government's            improvident  statement.    Accordingly,   we  rule  that  the            prosecutor's comment, although  improper, was harmless error.            See, e.g., United States  v. Lilly, No. 91-2192, slip  op. at            ___  ____  _____________     _____                                            ____________________            5.  Along with its sua sponte correction, which literally cut                               ___ ______            off the  government in mid-sentence, the  district court also            gave  the following  instruction in  its final charge  to the            jury:                       Now,  we  have  talked  a lot  about  the                      presumption of innocence.   It is a  rule                      of law  in this country, indeed,  it is a                      constitutional rule, that a  defendant is                      presumed to be innocent.  And that means,                      very   simply   that  the   defendant  is                      innocent.    He  is  innocent  until  the                      government  proves  him   guilty.     And                      because he  is innocent, he does not have                      to  prove  his  innocence.    He  has  no                      obligation to offer  any evidence, he has                      no obligation to  offer any  explanation,                      hehas no obligation to take the stand.                                            -7-                                          7            17  (1st  Cir. 1992)  (indicating  that  generally "a  strong            message from the bench, delivered promptly, is a satisfactory            antidote to the potentially poisonous effects of an ambiguous            comment  or  a remark  that sails  too  close to  the wind");            United States v. Maccini,  721 F.2d 840, 847 (1st  Cir. 1983)            _____________    _______            (holding that district  court's "strong curative instructions            were  sufficient  to  correct"  the  effect  of  government's            improper statements).6                                            ____________________            6.  Defendant also challenges two implications allegedly made            by the government during  its rebuttal to defendant's closing            argument.   According to  defendant, the  government unfairly            implied that  the testimony  of law enforcement  officials is            generally more credible than the testimony of laypersons, and            that  defendant's  actions had  violated  a Boston  ordinance            which requires  that large  cash transactions be  reported to            the Boston Police.                     Even   if  the   government's  comments   carried  these            implications,  defendant  has  failed  to  argue,  let  alone            demonstrate, that either comment  "`changed the result of the            trial.'"  Hasting, 461 U.S. at 508 (quoting Chapman, 386 U.S.                      _______                           _______            at 22).  As defendant himself concedes, the government's case            against   him  consisted  primarily   of  Flatt's  testimony.            Neither  police  credibility  nor the  Boston  ordinance were            significant issues in the case against defendant.                   Moreover,   the   district   court  directly   addressed            defendant's concerns  regarding the statements.   With regard            to the  testimony of  law enforcement officers,  the district            court  told the  jury:   "You should  judge [law  enforcement            officials] in exactly  the same  way as  you judge  everybody            else.  Just because  they work for a law  enforcement agency,            doesn't make  them more  believable nor less  believable than            anybody  else."   With regard  to the  Boston  ordinance, the            district court instructed the jury that "neither  [defendant]            nor [co-defendant] Bleiler do business in Boston.   So, there            is no  evidence one  way  or the  other  that they  have  any            obligation  to   file  a  police  report."    We  find  these            instructions  more  than  adequate  to  dispel  any  possible            prejudice  from  the  government's  statements.   See,  e.g.,                                                              ___   ____            Lilly,  slip  op.  at   17  (strong  corrective  instructions            _____            generally   sufficient   to   cure   improper   prosecutorial            comments).   To the extent, therefore,  that these statements                                         -8-                                          8            B.  Jury Instructions            B.  Jury Instructions            _____________________                      Defendant  also  challenges   the  following   jury            instruction  regarding  the  process  of  evaluating  witness            credibility:                      Now, th[e] process [of evaluating witness                      credibility]   is,   as  used   here,  no                      different from what you  do all the time,                      every day in  your lives.   When somebody                      tells you a  story, you  make a  judgment                      whether  you believe what the person told                      you.     You   probably   do  it   almost                      instinctively.  And I ask you to make the                      same judgment, precisely the same kind of                      judgment, as you  review the testimony of                      each of the witnesses.              Relying  on United States v. Araujo, 539 F.2d 287, 290-91 (2d                        _____________    ______            Cir.), cert.  denied, 429 U.S. 983  (1976)), defendant argues                   ____   ______            that this  instruction was  prejudicial because  it permitted            jurors to  rely improperly  on their "instincts"  rather than            their common sense in assessing witness credibility.  We find            defendant's argument bordering on the frivolous.                      The   district  court   in  Araujo,   referring  to                                                  ______            particular  testimony or  evidence at  trial,  instructed the            jury  that  human  beings  have  a  tendency  or  a  "natural                                            ____________________            were improper, they too were harmless error.                 Similarly,  we are  unpersuaded by  defendant's argument            that the  two comments had the cumulative effect of rendering            the  trial unfair.  Given that the comments were unrelated to            each  other, and that each comment standing alone was at most            harmless error, there simply is no basis for  concluding that            the  comments  taken  together  influenced  the  outcome   of            defendant's trial in any way.                                         -9-                                          9            instinct" to lie  when confronted  with an  accusation.   The            Second Circuit  disapproved of the comment,  stating that "it            would be  preferable if the trial  judge avoided interjecting            his[/her]  own  personal  views  of  human  nature  into  the            charge."  Id. at 291.                      ___                      Plainly, the  instant case  is very  different from            Araujo.   In using  the term  "instinctively" in the  instant            ______            case,  the district court, in  the context of  a complete and            correct  jury instruction  on assessing  witness credibility,            merely emphasized to jury members that their every-day manner            of  assessing credibility  could  be employed  in their  jury            deliberations.   Far  from encouraging  jury members  to cast            aside their common sense, the instruction tended to encourage            its use.   As such, the instruction does not  provide a basis            for granting defendant a new trial.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  foregoing reasons,  the  judgment of  the            district court is affirmed.                      Affirmed.                       Affirmed.                       ________                                         -10-                                          10
