
USCA1 Opinion

	




          July 24, 1996     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1549                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 FRANCIS J. PROCOPIO,                                Defendant, Appellant.                                 ____________________        No. 95-1550                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                VINCENT A. LATTANZIO,                                Defendant, Appellant.                                 ____________________        No. 95-1551                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BERNARD KILEY,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this  court issued on July  9, 1996, is  amended as        follows:            On  page 29,  paragraph 2,  line 8,  insert footnote  3 after  the        words " . . . a fair trial." to read:               "In light  of our criticism  of the rebuttal  argument, we            think  it fair  to  note  that  the assistant  United  States            Attorney  who  argued  this  case   on  appeal  was  not  the            prosecutor who presented the rebuttal argument at trial."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1549                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 FRANCIS J. PROCOPIO,                                Defendant, Appellant.                                 ____________________        No. 95-1550                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                VINCENT A. LATTANZIO,                                Defendant, Appellant.                                 ____________________        No. 95-1551                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BERNARD KILEY,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Richard  J.  Shea, by  Appointment  of  the Court,  for  appellant            _________________        Francis J. Procopio.            Kevin  G. Murphy, by  Appointment of  the Court,  with whom Dusel,            ________________                                            _____        Murphy, Fennell, Liquori &  Powers was on brief for  appellant Vincent        __________________________________        A. Lattanzio.            Stewart  T. Graham, Jr.,  by Appointment  of the  Court, with whom            _______________________        Graham & Graham was on brief for appellant Bernard Kiley.        _______________            C. Jeffrey  Kinder, Assistant  United States  Attorney, with  whom            __________________        Donald K. Stern,  United States Attorney, was on  brief for the United        _______________        States.                                 ____________________                                     July 9, 1996                                 ____________________                 BOUDIN, Circuit Judge.   On April 9, 1991,  three armed,                         _____________            masked men stole $1.2 million in cash about to be loaded into            an armored  car belonging to Berkshire  Armored Car Services,            Inc.  ("Berkshire").    The  crime  occurred  in  Pittsfield,            Massachusetts.   On  June 10,  1993, the  government indicted            Bernard  J. Kiley,  Vincent A. Lattanzio,  Donald J.  Abbott,            Francis  J. Procopio and Charles  R. Gattuso.  The government            believed that the first three  men had committed the  robbery            and that the other two had aided the venture.                 The indictment  charged all five men  with conspiracy to            interfere with,  and interference with, commerce  by means of            robbery, 18 U.S.C.   1951, and with robbery of bank funds, 18            U.S.C.    2113(a).  Kiley and Procopio were also charged with            money  laundering, 18  U.S.C.     1956(a)(1)(B)(i), (ii).   A            superseding indictment was handed down on September 30, 1993,            adding firearms counts against Lattanzio and Kiley, 18 U.S.C.                922(g)(1) & 924(c)(1), (2), as well as a forfeiture count            against Kiley, 18 U.S.C.   982.                 In  due course,  Gattuso pled  guilty to  conspiracy and            entered  into a  cooperation agreement  with the  government.            Abbott  was murdered  prior  to trial.    The district  court            severed the firearms charges from the other counts; the three            remaining defendants  (Kiley,  Lattanzio and  Procopio)  were            convicted on all other counts after a 14-day  trial beginning            on  October 6,  1994.   A  second  jury convicted  Kiley  and                                         -3-                                         -3-            Lattanzio  on the firearm counts  on December 14,  1994.  All            three  defendants appealed,  praying  for new  trials on  all            counts.                 In  briefs and  oral arguments  by able  counsel, Kiley,            Lattanzio and Procopio raise  three major challenges to their            convictions.     First,  claiming  that   various  government            searches violated the Fourth Amendment, they contend that the            district  court  erred  in  failing   to  suppress  evidence.            Second, defendants  argue that  the court erred  in admitting            evidence  of  possible  preparations  for  a  later  robbery.            Finally,  defendants   urge  that  remarks  by   one  of  the            prosecutors  constituted misconduct  warranting a  new trial.            We affirm.                                    I.  BACKGROUND                                        __________                 Because there  is no challenge  to the  adequacy of  the            evidence,  we do not describe  what the jury  would have been            entitled to  find,  viewing the  evidence in  the light  most            favorable  to the  government.   Instead, we offer  a neutral            description  of  the  evidence  at trial  to  illuminate  the            defendants'  claims  of error  and  to  provide a  background            against  which  to  judge defendants'  claims  of  prejudice.            Facts  relevant  to the  suppression  motions  are set  forth            separately in the discussion of those issues.                 The government's  case began  with the testimony  of the            two Berkshire  guards, Allan  Mongeon and  James Cota.   They                                         -4-                                         -4-            testified  that three  men, armed  and masked,  accosted them            while  they  were loading  bags  of  money  into a  Berkshire            armored truck  in Pittsfield on April  9, 1991.  The  door of            the loading bay was open, in violation of regular procedures,            because the truck inside the bay was loaded with pallets, and            a second truck, which  the guards decided to use,  was parked            directly outside the bay.                 Although the guards offered little  physical description            of the robbers, they said that  one of the three men had been            older and shorter than the other two and that he  had a salt-            and-pepper  mustache;   a   false  mustache   matching   that            description was  later recovered from Kiley's  home.  Mongeon            was  able to  get a look  at the  right front  portion of the            robbers' get-away car;  he described it at the time  as a tan            sedan  of late-70s  vintage, probably  a Plymouth  Volare; he            later  identified as the car he had seen a tan-and-brown 1979            Buick  Regal, which had belonged  to Procopio at  the time of            the robbery.                 In addition,  Mongeon testified that one  of the robbers            had  called out "Chuck,  what are  you doing."   None  of the            individuals claimed by the government to have carried out the            robbery--Kiley, Lattanzio, and  Abbott--was named Chuck,  but            Gattuso was sometimes referred to by that name.  However, the            government established that Gattuso was well known to Mongeon            (Gattuso having been  fired by Berkshire two weeks before the                                         -5-                                         -5-            robbery); the point  was to suggest  that Mongeon would  have            recognized Gattuso's voice had he been present.                 Gattuso  then  testified.     He  said  that  Kiley  had            approached him  early in  March  1991, at  the suggestion  of            Gattuso's brother  Dino, for  help in planning  the Berkshire            robbery.   Gattuso later decided to  join, bringing his close            friend Procopio to  a second  meeting.  At  a final  meeting,            Gattuso   gave  Kiley  details   of  Berkshire's  operations;            Procopio  agreed  to  provide  and  dispose  of  the  getaway            vehicles.  Kiley  told Gattuso  that he would  carry out  the            robbery along with two  unnamed confederates.  Procopio later            told  Gattuso that one of the participants in the robbery was            named "Vinnie."                  Charles Parise, an unindicted co-conspirator  and friend            of Gattuso's, testified that Procopio brought a car--the same            Buick  Regal identified  by Mongeon  as the  get-away car--to            Parise's garage at his home in Pittsfield on the night of the            robbery.  Parise said  that he was  forced to hide the  car--            Procopio  threatened him  and his  family--and to  change its            tires, and was later paid $8,000 for his trouble.  This money            he returned to  the government.   The defense  cast doubt  on            Parise's credibility by  pointing to  statements by  Parise's            girlfriend suggesting that he had received more than $8,000.                 The next several days  of the trial were devoted  to the            government's  painstaking  presentation of  evidence  of cash                                         -6-                                         -6-            transactions, totaling nearly $330,000, by the defendants and            their  families  in  the  months  immediately  following  the            robbery.  For example, Kiley and Lattanzio travelled together            to Jamaica, also treating  several friends to the trip.   The            defendants'  lavish spending  occurred in  spite of  the fact            that Kiley had no visible means of support, Procopio had been            insolvent  prior  to the  robbery,  and  Lattanzio had  never            declared over $15,000 of income in any one year.                 In addition, the government presented evidence  of guns,            a state police uniform,  handcuffs, and a radio  scanner that            were  seized from Kiley's apartment at 81 Intervale Street at            the time of his arrest in June 1993; there  was evidence that            Lattanzio, whose father owned the building, was also spending            time in the apartment, and that  two of the guns seized there            belonged to Lattanzio.   Finally, the government played tapes            of telephone  conversations  among Kiley  and Lattanzio  (who            were in custody)  and Procopio  (out on bail)  in which  they            discussed getting "back  into business" and  holding "another            party" to which no "children" would be invited.                     The  defendants called  a total  of five  witnesses, who            testified  to  alternative sources  for  the  funds that  the            defendants spent following the  robbery.  The defense claimed            Kiley had  funds from prior  crimes; that Procopio  had money            from legitimate and illegitimate  businesses that he had been            hiding from the IRS and his ex-wife; and that John Lattanzio,                                         -7-                                         -7-            Sr., Vincent's father and  the depositor of much of  the cash            in question, had gambling winnings, again not reported to the            IRS.   In addition, the defense tried to establish that Kiley            had been in Florida at the time Gattuso alleged some of their            meetings had taken place.                               II.  SEARCH AND SEIZURE                                    __________________                 Defendants  challenge the  district  court's  denial  of            several suppression motions  before trial.  Procopio  objects            to a search of his residence (in 1992);  Kiley to searches of            his  residence  (in 1992  and 1993)  and  to searches  of his            papers,  recovered  from  a  stolen  safe  (in  1991)  and  a            briefcase seized after  a traffic stop (in  1992).  Lattanzio            joins in the  challenge to the  admission of evidence  seized            from Kiley's Intervale Street apartment in 1993.                 June 1992 search  of Kiley's and Procopio's  properties.                 _______________________________________________________            In June 1992,  Agent Howe of the IRS prepared an affidavit in            support of a warrant to search four Pittsfield properties:                      *37 Taubert Ave. (Kiley's residence)                      *124 Crane Ave (Gattuso's residence)                      *56 South Onota St. (Procopio's residence)                      *483 West Housatonic St. (Procopio's garage)                 Howe's  affidavit  set out  tips from  four confidential            informants.   A first confidential informant  (CI-1) had said            that  Kiley,  Charles  and  Dino Gattuso,  and  Procopio  had            participated in  the robbery;  CI-1 had the  information from                                         -8-                                         -8-            Armand Bigelow, who  heard it from  his friend Dino  Gattuso.            The second  tip,  from CI-2,  was  that Charles  Gattuso  had            talked about  a $10,000 trip  to California with  his family,            and had  said that he still  had $80,000 in cash  that he was            not "stupid  enough to  put in the  bank."  CI-3  stated that            Charles  Gattuso  had  buried  money  in  his  back yard  and            corroborated the information about the Gattuso family trip to            California.  CI-4 said that  he had overheard a  conversation            in which  Kiley's nephews said that Kiley was responsible for            the  "armored  car  heist"  and  flashed a  large  amount  of            currency to back up the boast.                 The Howe affidavit also  described a pattern of spending            by Kiley,  Gattuso, and  Procopio that was  inconsistent with            their  known legitimate  income.   Bank  records showed  that            Kiley had deposited over $42,000 in Florida banks  within six            months  of the robbery; Procopio had spent $36,000 on a house            in  which Gattuso was residing  and $12,000 on  a new garage.            The affidavit  said that Gattuso, a close friend of Procopio,            was   a  former   Berkshire  guard   familiar   with  company            procedures.  Agent Howe also stated that--based on past cases            involving drug dealers--individuals who have large amounts of            cash from illegal  sources often  have contraband,  proceeds,            and records of their  money-laundering efforts in their homes            and places of business.                 Both Kiley and Procopio  moved to suppress evidence from                                         -9-                                         -9-            this search; the motion was denied in a 45-page  order on May            16,  1994.   On  appeal, Kiley  and  Procopio argue  that the            district  court's determination  that Agent  Howe's affidavit            provided  probable cause  to  search was  flawed; Kiley  also            insists that the information was stale.                 Under Illinois  v. Gates, 462 U.S.  213 (1983), probable                       ________     _____            cause  to issue a search  warrant exists when  "given all the            circumstances set forth  in the  affidavit . .  . there is  a            fair probability  that contraband or evidence of a crime will            be found in a particular place."  Id. at 238.  In reviewing a                                              ___            magistrate's decision  to issue  a warrant, the  courts grant            "great  deference" to  the  magistrate's  evaluation  of  the            supporting affidavit, United States v. Jewell, 60 F.3d 20, 22                                  _____________    ______            (1st Cir. 1993), reversing only  if there is no "`substantial            basis  for . . . conclud[ing]'  that probable cause existed."            Gates, 462 U.S. at 238-39.            _____                 Kiley and  Procopio say  that the first  informant's tip            was multi-level  hearsay and that no evidence was provided to            show the veracity of the unidentified informant.  But the tip            did  not stand alone.  There was information from three other            informants  which tended  to  corroborate CI-1's  implication            that Gattuso  and Kiley  had  been involved  in the  robbery.            Moreover,  Kiley, Gattuso, and  Procopio each  began spending            large  sums of  cash  in the  months  following the  robbery;            Gattuso was  known to be familiar  with Berkshire's operating                                         -10-                                         -10-            procedures;  Procopio was  a close  friend of  Gattuso's and,            shortly after the robbery, purchased a house in which Gattuso            was residing.                   As  to Kiley, two confidential informants identified him            as  a participant  in  the robbery,  and  the government  had            evidence  of large cash deposits which  appeared to have been            structured  to  avoid   triggering  reporting   requirements.            Procopio's claim is a somewhat closer call, but the fact that            Procopio  had been spending  large amounts of cash--including            payments on a house  in which Gattuso was residing--suggested            that  Procopio  was  involved  at  least  in  laundering  the            proceeds of a crime in which Gattuso had participated.                 Kiley makes  two additional  arguments.  First,  he says            that  Agent  Howe's experience  with  drug  dealers does  not            qualify him  to speak about the habits  of bank robbers.  But            what ties the  two situations together is the criminal's need            to  dispose and keep track  of large cash  proceeds.  Second,            Kiley argues that the  information supporting the warrant was            stale because the  crime had  taken place  14 months  before.            Yet, the fact that the robbery had taken place many months in            the  past did  not eliminate  the likelihood  that the  paper            trail  of  financial  records   could  be  found  in  Kiley's            residence.                 Procopio argues that the district court erred in denying            him  a hearing under Franks v. Delaware, 438 U.S. 154 (1978).                                 ______    ________                                         -11-                                         -11-            Franks provides for  such a hearing  where a defendant  makes            ______            "allegations of deliberate falsehood or of reckless disregard            for the truth, .  . . accompanied by an offer of proof."  Id.                                                                      ___            at 171.   Procopio claimed in the  district court that such a            doubt about the  agent's good faith exists  here because Dino            Gattuso, the alleged source of CI-1's information, later told            the  government  that  he  did  not  recall  discussing  that            information with anyone else.                 The district  court properly  refused to grant  a Franks                                                                   ______            hearing.  Dino Gattuso's statement falls  short of a specific            denial that he ever discussed the matter with Bigelow; nor is            there  any indication  that Agent  Howe was  aware of  Dino's            statement  at the  time Howe  swore out  the affidavit.   The            corroborating   information,   including   the  evidence   of            Procopio's  unexplained   expenditures,  remains  unaffected.            Nothing appears to raise a reasonable suspicion of deliberate            misconduct or  recklessness on the part  of the investigating            agent.                 Kiley's papers from his brother's safe.  On November 29,                 ______________________________________            1991, a safe  was stolen from Kiley's brother  Donald; around            that  time,  an  abandoned  safe  was  found  in  a  park  in            Pittsfield, with papers inside the open safe and scattered on            the  ground  nearby.   The papers  were  taken to  the police            station and were laid out to  dry and to be fingerprinted.  A            police  detective noticed that some  of the documents were in                                         -12-                                         -12-            Bernard Kiley's  name and called  an FBI agent he  knew to be            investigating   Kiley  and  the   Berkshire  robbery.     The            investigating agents reviewed the  documents and used them to            obtain  Kiley's bank  records by  grand jury  subpoena; these            records supported the search of 37 Taubert Avenue.                 Kiley argues  that the police actions  were improper; he            says that once the police knew whose safe it was and that the            documents came from inside  it, they had no need to conduct a            review  of the  documents.    In  our  view,  any  reasonable            expectation of privacy Kiley  enjoyed in documents secured in            his  brother's safe was destroyed by private action for which                                                 _______            the  government  was  not  responsible.    United  States  v.                                                       ______________            Jacobsen, 466 U.S. 109, 113 (1984).  And once the papers were            ________            left openly available in a public place, their examination by            government  agents  was not  "unreasonable" under  the Fourth            Amendment.  Cf. id. at 115-18.                        ___ ___                 We thus join the Eleventh  Circuit which held there  was            no Fourth Amendment  violation in very  similar circumstances            in  United States v. O'Bryant, 775 F.2d 1528, 1534 (11th Cir.                _____________    ________            1985).  See also United States v. Aguirre,  839 F.2d 854, 857                    ________ _____________    _______            (1st  Cir. 1988).    Because  of  the  way  we  resolve  this            question, we need not reach the district court's holding that            Kiley  lacked  standing  to   challenge  the  search  of  his            brother's  safe  and, in  the  alternative,  that the  police            search did not go beyond a proper inventory search.                                           -13-                                         -13-                 Search of Kiley's briefcase  following traffic stop.  In                 ___________________________________________________            November 1992, a Lenox police office tried to pull Kiley over            for driving with a broken headlight.  Kiley jumped out of his            car, ran into  the woods,  and was eventually  caught by  the            police.  The  car was impounded and  the contents inventoried            in keeping  with  department  policy.   The  police  found  a            briefcase  in the trunk; they  opened the briefcase and found            marijuana and incriminating documents detailing over $100,000            in  expenditures.   The police  informed a federal  agent who            asked that the car be held while he obtained a warrant.                   The district  court held  that  the police  department's            search  of  the  briefcase--which  Kiley  said  was  locked--            exceeded  the bounds  of  its own  policy covering  inventory            searches, and  therefore did  not come within  the applicable            exception to  the Fourth Amendment.   Florida  v. Wells,  495                                                  _______     _____            U.S.  1 (1990);    South Dakota  v.  Opperman, 428  U.S.  364                               ____________      ________            (1976).   However,  the  court  went  on  to  hold  that  the            "inevitable discovery" doctrine of  Nix v. Williams, 467 U.S.                                                ___    ________            at 444, saved the search.  It reasoned that by November 1992,            Kiley  was  already  implicated   in  the  Berkshire  robbery            investigation  so  that federal  agents,  being  told of  the            briefcase, would surely have sought a warrant to inspect  its            contents.                   The  burden   is  on  the   government  to  show   by  a            preponderance   of  the  evidence  that  the  evidence  would                                         -14-                                         -14-            inevitably have been  discovered by lawful  means.  Nix,  467                                                                ___            U.S.  431, 444 (1984); United States v. Infante-Ruiz, 13 F.3d                                   _____________    ____________            498, 503 (1st  Cir. 1994).   We review  the district  court's            fact  finding   only  for  clear  error,   United  States  v.                                                       ______________            McLaughlin,  957  F.2d  12,  16  (1st  Cir.  1992),  but  the            __________            underlying  facts  are  not  in  dispute.    We  will  assume            arguendo,  favorably to  the  defendants,  that the  ultimate            ________            determination (whether discovery here was inevitable) amounts            to  a question of law application that is reviewable de novo.                                                                 __ ____            Cf. Ornelas v. United States, 116 S. Ct. 1657 (1996).             ___ _______    _____________                 Kiley points out that the federal agents only obtained a            warrant  after being  informed that  the  briefcase contained            potentially incriminating bank records.   He then argues that            it is speculation  to assume that, absent  those records, the            police  would have  called  federal agents  and that  federal            agents would have sought a warrant.   And in fact, the  local            police called  the federal authorities  only after conducting            what  we will assume, for purposes of this argument, may have            been an illegal search of the briefcase.                 Still, the local  police knew that Kiley was  the object            of a federal robbery investigation.  And Kiley made a blatant            attempt  to flee  from the  police when  stopped for  a minor            traffic   violation,  leaving  behind   an  allegedly  locked            briefcase.  There  is thus  little reason to  doubt that  the            local  police  would  have  contacted  federal  agents,  even                                         -15-                                         -15-            without  the information  gleaned  during the  search of  the                                                           ______            briefcase itself.    It is  even  more certain  that  federal            agents, having ample time to do  so, would have then sought a            warrant to search the briefcase.                 In the  alternative, Kiley questions whether without the            documents  the government  would have  had probable  cause to            search the briefcase.  The evidence that justified the search            of Kiley's residence would have established probable cause to            believe that  Kiley was involved in the crimes later charged;            and Kiley's sudden flight and the locked briefcase would have            given a magistrate reason  to think that Kiley might  well be            carrying material  pertaining to  the crimes, which  included            money laundering.                 Search of Kiley's residence at 81 Intervale.  Both Kiley                 ___________________________________________            and  Lattanzio  challenge  the  propriety of  the  search  of            Kiley's  new residence  at 81  Intervale Street  in Brockton,            Massachusetts.   In June  1993, FBI  and IRS  agents obtained            arrest warrants  for Kiley and Lattanzio and a search warrant            for 79 Intervale  Road.  Lattanzio  was arrested outside  the            building (containing both  79 and 81 Intervale).   The agents            next  entered 79 Intervale and  were told by  a tenant that a            man resided upstairs; the agents called Kiley's name from the            back  stairs of the building  and received a  response from a            third-floor apartment marked 81 Intervale.  As Kiley left the            building, he was arrested.                                         -16-                                         -16-                 IRS  Agent Downes  telephoned  to  another  agent--Agent            Crocker--to  ask her to prepare a warrant application for the            new address--81 Intervale.  Her affidavit read in part:                      On June  8, 1993,  I talked by  telephone with                 Special Agent Gerard F.  Downes who advised me that                 he was at Bernard  Kiley's address at 81 Intervale,                 Brockton, MA., waiting to execute a  search warrant                 . . .  .   Special Agent Howe  advised me that upon                 arrival  at the  residence  he discovered  that the                 correct   address  for  Kiley's  residence  was  81                 Intervale  Road,  Brockton,   MA.  rather  than  79                 Intervale   Road   as   listed   in   the  original                 application and warrant.            An  amended  warrant  was  issued,  and  the  ensuing  search            revealed  the   cache  of  arms  and   other  evidence  later            introduced at trial.     The  district  court  held that  the            warrant should not have issued to search 81 Intervale because            nothing  in  the  affidavit  established  probable  cause  to            believe  that Kiley lived  there.  In fact,  the agent on the            scene knew  that surveillance  had shown Kiley  lived in  the            building, knew  that his mail  was delivered there,  and knew            that Kiley had been in the apartment moments before; but none            of this information was  included in the warrant application.            However, the district court held that the evidence  was saved            by  the  "good faith"  exception  to  the exclusionary  rule.            United States v. Leon, 468 U.S. 897 (1984).            _____________    ____                 We agree with the  district court that Leon applies,  an                                                        ____            issue we consider de novo.  United States v. Manning, 79 F.3d                              __ ____   _____________    _______            212,  221 (1st Cir. 1996).   Leon protects  good faith police                                         ____            reliance on a magistrate search  warrant, even if the warrant                                         -17-                                         -17-            later  proves  invalid,  unless  inter  alia  the  underlying                                             ___________            affidavit  is "so lacking in indicia of probable cause" as to            make  reliance upon  it "entirely  unreasonable."   Leon, 468                                                                ____            U.S.  at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11                                  _____    ________            (1975)) (Powell,  J., concurring in  part).  See  also United                                                         _________ ______            States v. Ricciardelli.  998 F.2d 8, 15 (1st Cir. 1993).            ______    ____________                 The focus in a warrant application is usually on whether            the  suspect committed a  crime and  whether evidence  of the            crime is  to be found at  his home or business.   That hardly            makes the address unimportant:  to  invade the wrong location            is a  serious matter.   But so  long as the  affidavit itself            asserts a link  between the  suspect and the  address, it  is            easy to  understand how  both  the officer  applying for  the            warrant and the magistrate might overlook a lack of detail on            a point often established  by the telephone book or  the name            on a mailbox.                 In this instance, the second affidavit expressly recited            that agent Downes had advised that he was "at Bernard Kiley's            address  at  81  Intervale .  .  .  ."   Thus,  the affidavit            included  the  agent's  assertion  that  the  address  to  be            searched (81 Intervale) was that of the suspect (Kiley) as to            whom probable cause had been shown; the only omission was the            failure to explain how the agent--who had ample basis for the            contention--knew that  "81 Intervale" was  "Kiley's address."            Whether or  not this is  a defect  in the application,  it is                                         -18-                                         -18-            hardly blatant, nor is  there any suggestion (or basis  for a            suggestion) of actual bad faith.  Thus, we conclude that Leon                                                                     ____            applies.                 Cases  like   Nix  and  Leon  may  seem   to  some  like                               ___       ____            technicalities that undermine  Fourth Amendment  protections.            Others may view them  as practical accommodations of tensions            bound to  arise where highly relevant  evidence is threatened            with exclusion in order  to deter police misconduct.   In all            events, it is our job to apply these  doctrines, as they have            been developed by the Supreme Court,  to the particular facts            of each case.                                                      -19-                                         -19-                              III.  RULE 404(b) EVIDENCE                                    ____________________                 Kiley  and Lattanzio  object to  the admission  of guns,            handcuffs, a  state police  uniform and  badge, and  a police            scanner  seized at  81  Intervale.1   They have  consistently            argued  that the  items are  inadmissible because  their only            tendency is to suggest  that defendants are violent criminals            and the items are character-propensity evidence prohibited by            Fed.  R. Evid 404.  The government counters that the evidence            is relevant to indicate  a criminal association between Kiley            and Lattanzio in 1991; the district  court agreed, relying on            our  decision in United States  v. Fields, 871  F.2d 188 (1st                             _____________     ______            Cir.), cert. denied,  493 U.S. 955 (1989),  and also declined                   ____________            to exclude the evidence under Fed. R. Evid. 403.                    Rule  404  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;"            however, such  evidence is  admissible if offered  for "other            purposes."  Id.   See United States v.  Moreno, 991 F.2d 943,                        ___   ___ _____________     ______            946 (1st  Cir.), cert.  denied, 114  S. Ct.  457 (1993).   If                             _____________            evidence "supports  a chain  of inference independent  of any                                            ____________________                 1Procopio  also attempts  to  raise this  issue, arguing            that the  admission of this evidence  prejudiced his defense.            But  "[o]bjections based on Rule 404(b) may be raised only by            the  person  whose  `other   crimes,  wrongs,  or  acts'  are            attempted  to be revealed."  United States v. David, 940 F.2d                                         _____________    _____            722,  736  (1st Cir.),  cert.  denied, 502  U.S.  989 (1991).                                    _____________            Procopio asked  for and was granted  repeated instructions to            the effect that the  81 Intervale evidence did not  relate to            him.                                         -20-                                         -20-            tendency of the evidence to show  bad character," Moreno, 991                                                              ______            F.2d at 946, it is  said to have "special relevance"  and not            barred by Rule 404.                 Here, such special relevance  is easy to articulate (the            strength and  significance of  the inference are  a different            matter).    Plainly,  the   seized  materials,  found  in  an            apartment used by both Kiley and Lattanzio, tended to suggest            that in 1993 the two men had a criminal association.  This to            some extent  suggested a criminal association  in 1991, which            was  helpful to the government's  claim that the  two men had            collaborated in  the Berkshire  robbery in 1991.   Thus,  the            inference  goes  somewhat  beyond the  mere  implication that            either man was of bad character.                   True, the seized  items might have belonged  only to one            of the two  men.  Or  an association between them  might have            been  criminal in  1993  but innocent  in  1991.   But  these            possibilities affect  only the strength  of the  government's            inference.    A  later  criminal  association  increases  the            likelihood of  an earlier one--which is  all that "relevance"            requires, Fed.  R. Evid.  401; United States  v. Tutiven,  40                                           _____________     _______            F.3d 1,  6 (1st  Cir. 1994)--and  numerous cases  permit such            reasoning  from a later event or condition to an earlier one.            E.g., United States v. Andiarena, 823 F.2d 673, 677 (1st Cir.            ____  _____________    _________            1987).                   In  all events, we agree with the district court that we                                         -21-                                         -21-            crossed this bridge in Fields.   There, three defendants were                                   ______            charged  with conspiracy and bank robbery.  Three years after            the  robberies, two of the defendants were caught in a stolen            car  containing  various  "tools  of  the  trade"  for  armed            robbers.    The  evidence  was  admitted  at  trial  over  an            objection  based on Rule 404.  This court upheld the district            court, holding that the evidence "shed light on the nature of            [the  defendants']  association at  the  time  of the  crimes            charged."  Fields, 871 F.2d at 198.                       ______                 On   appeal,  defendants  seek  to  distinguish  Fields,                                                                  ______            primarily  on  the  ground  that  the  permissible  inference            pointing toward guilt  in that case was  somewhat stronger on            the facts.  This may be so, although we there  noted that the            similarity between the charged  crime and the subsequent acts            was  "most likely insufficient to show  a "`signature.'"  Id.                                                                      ___            at 197.  But  it seems to us  that, so long as some  "special            relevance' is shown, the  bar of Rule 404 is crossed  and the            issue  is  then  one  of balancing  probative  value  against            prejudice under Rule 403.                 This  Rule 403 judgment  was undoubtedly a  close one on            the  present  facts.   The  criminal  association was  itself            merely inferred  (Lattanzio did  not live permanently  at the            apartment), and the need to reason backward from 1993 to 1991            further weakens the  inference.   And here, as  is often  the            case with  Rule 404(b)  evidence,  the permissible  inference                                         -22-                                         -22-            (criminal association) overlapped with, and went only a small            step beyond, the forbidden one (criminal character).  This in            turn  increases the difficulty for  the jury and  the risk of            prejudice.                 On the  other hand, some  would think that  the evidence            confirmed  a  criminal association  as  of  1993, indeed,  an            association  probably  designed   to  perpetrate   robberies.            Arguably,  the two year  gap was  less important  than usual,            given an admitted association of some kind in 1991 (albeit in            the months after  the robbery).   The  evidence was  scarcely            redundant.2   And  the presence  of  guns at  the  apartment,            while telling, is not such as to overwhelm the emotions of an            ordinary  juror  in  the  manner  of  gruesome  testimony  or            photographs.                 In  sum,  the issue  was  at best  a  close one  which a            reasonable judge might have decided either way.  The district            court  enjoys   great  latitude  in   making  an  on-the-spot            balancing judgment under Rule  403, Manning, 79 F.3d at  217,                                                _______            and we cannot  find any  abuse of discretion  here.  This  is            especially  so in view  of Fields where  similar evidence was                                       ______                                            ____________________                 2As the Advisory Committee Notes to Rule  403 point out,            "[i]n  reaching a  decision  whether to  exclude evidence  on            grounds of  unfair prejudice,  . .  .  [t]he availability  of            other means of proof may also  be an appropriate factor."  In            this   instance,  a  prior   association  between  Kiley  and            Lattanzio was amply proved by other evidence (e.g.,  of their                                                          ____            trips)  but  nothing  else  directly  indicated  the criminal            character of the association.                                         -23-                                         -23-            upheld by this court.  The truly difficult problem  for us is            not the admission of the  evidence but the use made of  it by            the prosecutor in closing, a subject to which we will shortly            return.                             IV.  PROSECUTORIAL MISCONDUCT                                 ________________________                 All these defendants object  to various comments made by            the  prosecutor in his rebuttal  argument, and argue that the            trial judge erred in failing to grant a mistrial.  Several of            the  comments were  the subject  of timely objection  and the            claims  of   error  are  fully  preserved;   the  others  are            reviewable for plain error.  United States v. Wihbey, 75 F.3d                                         _____________    ______            761 (1st Cir. 1996).                 Comment on Failure to Testify.  The first charge is that                 _____________________________            the prosecutor  impermissibly  commented on  the  defendants'            failure  to testify.  Counsel for  Kiley and Lattanzio argued            in their closing  that the jury could find cause for doubt in            the  government's  failure to  ask  the  Berkshire guards  to            identify Kiley's  and  Lattanzio's  voices  from  the  prison            tapes.  In its rebuttal, the government replied:                 And why  didn't the  Government play tapes  for the                 guards and  see if they  recognized the defendants'                 voices.  You heard from  two of the defense counsel                 if we had, and if the guards identified the voices.                 Is  there  anybody   here  that  thinks  that   the                 defendants  would have  come in  the  courtroom and                 fessed-up, or  would  they have  just created  more                 illusions for argument.            An  objection  was  made,  but  the  district  judge  saw  no            impropriety.                                         -24-                                         -24-                 What the prosecutor was  trying to say was  that defense            counsel were making a commotion about a lack of evidence from            the guards but,  if such testimony had  been offered, counsel            would then have belittled it.  The prosecutor's reference was            inartful and could be taken--especially out of context--as an            improper comment.   But it  was certainly not  an intentional                                                              ___________            comment on the failure to testify.  And in context, it was at            most  a  glancing  brush  rather  than  a  blow  against  the            privilege.                 The district judge included in the closing  instructions            the standard warning:  that defendants have an absolute right            not  to testify and that no  inference should be drawn from a            failure to testify.   If any  juror mistook the  prosecutor's            comment to  suggest otherwise,  that suggestion  was squarely            corrected  not  long  afterwards  by  the  judge.     We  are            completely  confident that  the  comment did  not affect  the            outcome, and  although perhaps technically  a violation,  was            harmless beyond  a reasonable doubt.   Chapman v. California,                                                   _______    __________            386 U.S. 18 (1967).      Comment  on propensity  to violence.                                     ___________________________________            All defendants complain on appeal about the following remarks            by the prosecutor:                 These defendants, make no mistake about it, share a                 violent and  vicious criminality.   The arsenal  at                 Intervale  and Frank's explicitly  saying they will                 go into  the criminal business again  have no other                 explanation.    Our society  doesn't  need  it.   I                 submit  to  you society  has  had  enough of  Frank                 Procopio, Bernie Kiley, and Vinnie Lattanzio.                                          -25-                                         -25-                 This comment was improper  for two reasons.   First, the            "society doesn't  need it"  comment "served no  purpose other            than to `inflame  the passions and prejudices  of the jury.'"            United States v. Machor,  879 F.2d 945, 956 (1st  Cir. 1989),            _____________    ______            cert. denied,  493 U.S.  1081 (1990)  (quoting in  part prior            ____________            precedent).   Second,  and more  troubling, the  prosecutor's            remarks encouraged the jury to conclude from the 81 Intervale            evidence  that  the  defendants  were "violent  and  vicious"            criminals.   This inference--that the defendants  were of bad            character--was  precisely  the  inference  that  Rule  404(a)            forbids.                   However, defense  counsel failed  to object at  trial to            these remarks  by the prosecutor.  Reviewing  courts are very            reluctant to reverse for unobjected-to errors that could have            been corrected or ameliorated  by timely objection.  Arrieta-                                                                 ________            Agressot v. United States,  3 F.3d 525, 528 (1st  Cir. 1993).            ________    _____________            Consonantly, under the "plain error"  test, the error has  to            be obvious  and affect "substantial rights,"  and the failure            to  reverse  the  conviction  must  cause  a  miscarriage  of            justice.   United States v.  Olano, 113 S.  Ct. 1770, 1777-79                       _____________     _____            (1993).                 We regard  this set  of  comments as  presenting a  very            close call, at  least as  to Lattanzio.   Against Kiley,  the            direct evidence  was strong;  but Lattanzio was  not directly            identified by  anyone, and the government's  case against him                                         -26-                                         -26-            was   based   on    adequate,   but   hardly    overwhelming,            circumstantial evidence.  If  Lattanzio had objected at trial            and  if (which we doubt  in light of  the final instructions)            the district court had ignored or overruled the objection, it            might  be hard  for  the government  to  show the  error  was            harmless.  United States  v. Randazzo, 80 F.3d 623,  631 (1st                       _____________     ________            Cir. 1996).                 But  here,  it  is  Lattanzio  who  must show  that  the            improper   remarks  likely   infected   the  jury   (affected            "substantial rights" in Olano's words) and mere possibilities                                    _____            are not enough.   The assault on the guards  and the weaponry            found at  Intervale were  facts permissibly before  the jury.            What was added  was improper  commentary; but this  is not  a            case  in  which  the  jury learned  of  inadmissible  events,            something  far  more  likely  to infect  fatally  the  jury's            reasoning.                 Similarly,   under   Olano's   miscarriage  of   justice                                      _____            standard, we  think the prosecutor more culpable here than in            the "fess up" comment;  that was merely inadvertent  and this            was seriously careless.  But it is important to note that the            district  court, in  closing instructions  the next  day, did            give a pointed warning to the jury:                        During   closing   arguments   yesterday,                      certain counsel made certain remarks that                      were  heated  and  inflammatory,  perhaps                      depending on  how you  look at  them, and                      certainly emotional.                                         -27-                                         -27-                           I  ask you to totally disregard what                      counsel  may   have  said  in   a  heated                      fashion.   Your job  is to  determine the                      truth  . . . .            The  court also firmly  reminded the jury  that the Intervale            evidence was not to be used as propensity evidence.                 These are the very curative instructions that would have            been given  if a timely  objection had been  made.   The fact            that the defense did not object also may suggest that, in the            conditions of  the courtroom, the passage  in question passed            by as mere  rhetoric.  In  all events, we  are not  persuaded            under Olano that this misstep, taken in light of the curative                  _____            instructions,  probably  altered  the  result or  produced  a            fundamentally unfair trial.                 Implication  of  threats.   Defendants,  during  closing                 ________________________            arguments, attempted to  cast doubt on  Gattuso's reliability            by referring to the fact that the government had paid him and            reduced the charges against him.  The government responded:                 Mr.  Graham objected, apparently a moral objection,                 because the Government spent $10,000 on subsistence                 expenses for Charlie Gattuso before  he entered the                 witness  protection  program,   as  part  of   that                 program.   I'm sure that  Mr. Graham and  the other                 defendants would have preferred he not be here, and                 he  not testify, and I  want to apologize on behalf                 of the government for protecting his life.            Defendants argue  that the comment unfairly  implied that the            defendants would prefer to see Gattuso dead and in fact posed            a threat to him.  They  also suggest that the jury could have            had its doubts aroused  by Abbott's absence, but in  fact any                                         -28-                                         -28-            hint that he had been murdered was scrupulously excluded from            the trial.                   The  jury already  knew that  Gattuso was  in a  witness            protection   program,  presumably  for  his  protection,  and            obviously the  defendants would  have preferred that  Gattuso            not testify.   The implication  that the  defendants posed  a            threat to  Gattuso's  life  is more  troubling,  but  it  was            indirect,   utterly  unsupported,   and  occurred   during  a            legitimate  attempt  to  explain  (in  response   to  defense            impeachment) why the money  had been spent.  We  do not think            that  the  criticized  comment,  although over  the  line  of            propriety, affected the defendants' substantial rights.                 Disparagement of counsel.   The prosecutor told the jury                 ________________________            that defense arguments were  "illusions . . . a  smoke screen            aimed at creating that, an illusion to . . . deflect you from            the single  thread of  truth  that   . .  .  unifies all  the            evidence  in the case."   Then  the government  stated, "This            isn't  a game . . .  the  robbery wasn't a game, and I've got            news  for  the  defense  counsel,  this trial  isn't  a  game            either."  Only Lattanzio objected to this statement at trial;            he  asked for  a curative  instruction which  was given.   No            further objection was raised.                   "The  prosecutor is expected  to refrain from impugning,            directly or  by implication, the  integrity or  institutional            role  of defense counsel."  United States v. Bennett, 75 F.3d                                        _____________    _______                                         -29-                                         -29-            40, 46 (1st  Cir. 1996),  petition for cert.  filed (June  5,                                      _________________________            1996) (No. 95-9237).  The prosecutor's remarks, although more            wind than rain, were arguably excessive disparagement.  But a            corrective  instruction was  asked for and  given, and  it is            unrealistic  to  suggest  that such  empty  cliches seriously            affected the jury's deliberations.                 Defendants said  at oral  argument that  the prosecution            had attempted in these appeals to defend its improper remarks            piecemeal,  glossing over the  cumulative impact.  Cumulative            impact is a legitimate concern, cf. United States v. Manning,                                            ___ _____________    _______            23 F.3d  570, 575 (1st Cir.  1994), but the only  remark that            raised serious risk of prejudice was the "vicious and violent            criminality" comment.   Nor  did  the other  comments form  a            pattern that  would tend to reinforce  the improper inference            there encouraged.   We are  thus satisfied that  the improper            arguments, even taken as a whole, do not merit reversal.                 They  do  merit  some  criticism  of  the   prosecution.            Contrary to the  epigram, a fault is not  worse than a crime;            but  a  pattern   of  faults  does   suggest  a  failure   in            supervision.  The government should not have to devote almost            20  pages of its brief  to explaining away  problems with its            arguments  to  the  jury.    It  is  happenstance  that   the            prosecution has done  more damage to its  own reputation than                                         -30-                                         -30-            to the defendants' right to a fair trial.3                                        V.  CONCLUSION                                        __________                 Defendants  have  raised  some additional  arguments  in            their briefs.   Among  others,  Procopio claims  that he  was            affected by the Intervale evidence and also that it was error            for the district  court to deny his  motion to sever.   Kiley            and  Lattanzio  object  to  the  admission  of  certain  tape            recordings  on hearsay  grounds  and under  Bruton v.  United                                                        ______     ______            States,  391  U.S.  123 (1968).    Lattanzio  objects  to the            ______            admission of a photograph of cash in a clothes drier and also            argues that the  district court erred by failing  to instruct            the jury on the meaning of reasonable doubt.                 We  have carefully  considered defendants'  arguments on            these and  on a few  additional points, primarily  related to            the  instructions  and   additional  instances  of  allegedly            improper argumentation by  the prosecutor.  In our view, none            of  these points presents a  strong claim of  error and none,            even  if error, involves any  serious risk of  prejudice.  It            was fair for  defense counsel  to raise these  issues in  the            course  of their thorough  and extensive briefs,  but they do            not require further discussion by us.                 Affirmed.                 _________                                            ____________________                 3  In light  of our criticism of the  rebuttal argument,            we think it  fair to  note that the  assistant United  States            Attorney   who  argued  this  case  on  appeal  was  not  the            prosecutor who presented the rebuttal argument at trial.                                         -31-                                         -31-
