July 1, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2069

                        UNITED STATES,

                     Plaintiff-Appellant,

                              v.

                       PAUL J. KIRVAN,

                     Defendant-Appellee.

                                         

No. 92-2289

                        UNITED STATES,

                          Appellee,

                              v.

                       PAUL J. KIRVAN,

                     Defendant-Appellant.

                                         

                         ERRATA SHEET

The  opinion of  this court  issued  on June  29, 1993  is amended  as
follows:

On page  3, line 7, "erred  in a granting"  should read "erred  in
granting".

On  page 3, line  20, "the  money in into a  bag" should read "the
money into a bag".

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2069

                        UNITED STATES,

                     Plaintiff-Appellant,

                              v.

                       PAUL J. KIRVAN,

                     Defendant-Appellee.

                                         

No. 92-2289

                        UNITED STATES,

                          Appellee,

                              v.

                       PAUL J. KIRVAN,

                     Defendant-Appellant.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                      

                                         

                            Before

                Cyr and Boudin, Circuit Judges,
                                              
              and Burns,* Senior District Judge.
                                               

                                         

Richard Abbott for Paul J. Kirvan.
              
Timothy Q. Feeley,  Assistant United States Attorney, with whom A.
                                                                 
John Pappalardo, United States  Attorney, was on brief for  the United
           
States.

                                         

                        June 29, 1993
                                         

                

* Of the District of Oregon, sitting by designation.

     BOUDIN, Circuit Judge.  Paul Kirvan  appeals from a jury
                          

verdict finding  him  guilty  on  one  count  of  armed  bank

robbery, in violation of 18 U.S.C.    2113(d).  The jury also

convicted Kirvan of carrying  a firearm during the commission

of a crime of violence, in  violation of 18 U.S.C.    924(c),

but  the district court set that conviction aside.  On cross-

appeal,  the government argues that  the trial judge erred in

granting  a judgment of acquittal  on this second  count.  We

affirm the  bank  robbery conviction,  reinstate the  firearm

conviction and remand for resentencing. 

     The facts, limited  to those pertinent to the  issues on

appeal, can be briefly stated.  A lone masked  robber held up

a savings  bank in  Lowell,  Massachusetts, at  3:25 p.m.  on

August 20,  1991.   The surveillance  photographs taken  by a

bank camera showed the robber wearing a distinctive  rain hat

and holding what  appeared to  be a large  handgun.   Several

persons  in the bank saw the same robber and the gun.  At one

point the  gun fell  to the  floor with a  loud thump  as the

robber climbed over  a counter.   The  robber collected  cash

from several drawers, stuffed  the money into a bag  and fled

from the bank with the cash and his gun.

     At about  3 p.m.,  before  the robbery,  an FBI  special
                              

agent  named Gerald  Mohan happened  to be  driving out  of a

parking  lot not far from  the bank.   For plausible reasons,

unrelated  to  the bank  robbery,  Mohan began  to  follow an

                             -4-

Oldsmobile that turned out to be registered to Kirvan.  Soon,

the  Oldsmobile stopped, and  a passenger wearing  a rain hat

left  the car, transferred to a Chevrolet, and both cars were

driven back toward the bank.  Mohan briefly lost contact with

the  cars and  then located  the Chevrolet  leaving the  bank

parking  lot.  As Mohan's  car passed the  Chevrolet going in

the opposite direction,  he saw  in the driver's  seat a  man

wearing a rain hat.

     Mohan  later selected Kirvan's  photograph from an array

as the man whom  Mohan had seen in the  Chevrolet leaving the

bank.  Through  other witnesses, there was evidence  that the

driver and another man had abandoned the Chevrolet (which was

stolen)  around 3:30  p.m. and switched  to another  car; one

young witness to the switch of cars testified that one of the

individuals who left the  Chevrolet looked "Portuguese."  The

police later discovered a bag and a police-band radio scanner

in Kirvan's Oldsmobile.

     On  October  3,  1991, the  grand  jury  handed  down an

indictment charging Kirvan with  armed bank robbery and using

or  carrying a firearm  during a crime of  violence.  After a

six-day  trial, the  jury  returned guilty  verdicts on  both

counts.  Pursuant  to Fed. R. Crim. P. 29(c),  Kirvan filed a

motion for judgment  of acquittal.  The  district court judge

denied the  motion as to the bank robbery count but granted a

judgment of acquittal on  the firearms count.  On  the latter

                             -5-

count,  the trial  judge  ruled that  there was  insufficient

evidence  for a jury to  conclude that a  genuine firearm was

carried during the robbery.

     Kirvan's first  argument on  appeal is that  a statement

made by  the prosecutor during  summation was improper.   The

statement concerned Mohan's ability to identify the driver of

the oncoming Chevrolet where the distance between Mohan's car

and the other car was approximately 3 to 4 feet and both cars

were  travelling in  opposite  directions between  30 and  35

miles  per hour.  The  prosecutor said to  the jury, "I'm not

going to talk in terms of feet or seconds or milliseconds.  I

want you to put yourselves in the place that [Mohan] was in."

As defense counsel  did not object  to this statement  during

trial, the question is whether allowing it to stand was plain

error.  United States v. Mateos-Sanchez, 864 F.2d 232, 240-41
                                       

(1st Cir. 1988).

     Kirvan's brief relies primarily on cases that forbid so-

called   "golden  rule"  arguments  in  which  plaintiffs  or

prosecutors ask the jury  to put itself in  the place of  the

victim.   E.g., Forrestal  v. Magendantz, 848  F.2d 303,  309
                                        

(1st Cir. 1988).  But "golden rule" cases do not apply where,

as here,  the jury is asked to put itself  in the place of an

eyewitness.   In  this situation,  the invitation  is not  an
          

improper  appeal to the jury to base its decision on sympathy

for  the victim  but rather  a means  of asking  the jury  to

                             -6-

reconstruct  the  situation  in  order to  decide  whether  a

witness' testimony is plausible.

     Kirvan  also  asserts  that  the  prosecutor  engaged in

impermissible vouching  for the credibility of  Mohan.  Mohan

had  been  attacked  vigorously  on   cross-examination  with

questions designed to suggest  that his reasons for following

the Oldsmobile were fictitious,  that he had not had  time to

see Kirvan's  face,  and that  in  other respects  he  lacked

credibility.  In summation, the prosecutor spoke favorably of

Mohan, saying to the jury:

          "  . . . It tells you something about his
          professional  instincts; they  turned out
          to be right.   Tells you something  about
          his  sense  of duty.    It  tells you  he
          cared, that  he gave a damn,  that he got
          himself involved.

          He  didn't wait or let someone else worry
          about  it.   You  saw  him  on the  stand
          cross-examined  for how many  hours.  You
          saw   the  attempt  to  condemn  him,  to
          criticize  him,  to  embarrass   him,  to
          humiliate him, to imply  incompetency, to
          imply deceit.

             I  suggest  to  you  that  Gerry Mohan
          should  not  be condemned;  he  should be
          commended.      That   he  shouldn't   be
          criticized; he should be applauded.   And
          he    shouldn't    be   embarrassed    or
          humiliated.  He should  be proud, and you
          should be proud of him." 

     This argument does not constitute improper vouching; the

prosecutor did not assert his own opinion of Mohan's veracity

as a witness.  If any criticism could be made, it is that the

"let  someone else  worry" and  "commended .  . .  applauded"

                             -7-

commentary by the  prosecutor is inappropriate  cheerleading;

but this is  hardly plain  error, and, given  the assault  on

Mohan's  integrity, the remarks may be fair comment.1  As for

the   prosecutor's  argument   that  events   proved  Mohan's

instincts  to be  sound, it  may well  be false logic  from a

philosopher's standpoint but it is perfectly good folk wisdom

and is neither an appeal to emotion nor personal vouching.

     Finally, Kirvan argues  that the  prosecutor engaged  in

impermissible  conduct in recounting  testimony.   As already

noted, a young witness,  actually one called by  the defense,

described  the   driver  of   the   Chevrolet  as   appearing

"Portuguese."  During closing  argument, the prosecutor  told

the jury:

          "[The witness] also said that the man, to
          him,   looked   like  his   ancestry  was
          Portuguese.   I ask  you to look  at Paul
          Kirvan.    Imagine  him with  his  hair a
          little  longer like it  is in the photos.
          Imagine him  with his skin a  little more
          tanned like it is in this photo.  Imagine
          him with a mustache, and imagine him with
          a beard  that you can see  from your jury
          box.  Imagine him with  a growth of a day
          or so of beard and ask yourselves whether
          [the witness'] characterization--although
          it   may   not   have  been   technically
          accurate, ask yourselves  whether it  was
          descriptively accurate."

                    

     1In his  summation, defense counsel called  Mohan a liar
and deceptive, stupid or both.  While these  remarks followed
the  prosecutor's,   they  reflect  the   thrust  of  defense
counsel's earlier cross-examination of Mohan.

                             -8-

No objection to these comments was made at trial.  On appeal,

Kirvan does not claim that allowing the witness' response was

error.  However, Kirvan contends that prosecutor's  statement

(quoted above)  during closing  argument  either invited  the

jury to speculate  about identity based on  a vague criterion

or was racially inflammatory and deprived the defendant  of a

fair trial in violation of the United States Constitution.

     There   may   be  some   force   to   the  notion   that

"look[ing] . . . Portuguese"  is not much of  a criterion for

identification, although the description came from a  defense

witness.    But  defense  counsel had  ample  opportunity  in

closing argument to point out this weakness to the jury.  The

defense brief on appeal imaginatively refers us to cases that

preclude  a   jury  from  viewing  an   infant  to  determine

paternity; but that rule is not followed everywhere and rests

in part on considerations  of policy.  In any  event, counsel

did not object to  the prosecutor's statement at the  time it

was made, and the statement is not so vague or misleading  as

to constitute plain error.

     The claim that the  statement was a racial slur  is more

serious in that  the "[r]acial  fairness of the  trial is  an

indispensable ingredient of due process and racial equality a

hallmark of justice."  United States v. Doe, 903  F.2d 16, 25
                                           

(D.C. Cir.  1990).   However, the prosecutor's  statement was

not  in  fact  a  racially  inflammatory  remark;  it  was  a

                             -9-

permissible, "unembellished reference to evidence of race [or

ethnicity]  simply  as  a  factor  bolstering  an  eyewitness

identification of a  culprit."   Id.  Indeed,  we think  that
                                   

this charge against the prosecutor should not even have  been

made.

     The  government's  cross-appeal   presents  a  far  more

difficult  question.  Following the  jury verdict of guilt on

the  second  count  (carrying  a firearm  during  a  crime of

violence), the court granted  a judgment of acquittal finding

"no evidence that  the defendant actually  carried a firearm,

as opposed to a toy gun."  On appeal, we examine the evidence

in the light most favorable to the government.  If a rational

trier  of  fact could  have  concluded  that every  essential

element of the  crime charged was proved  beyond a reasonable

doubt,  then the  issue should  have been  left to  the jury.

United States  v. Medina-Garcia,  918 F.2d  4, 6-7 (1st  Cir.
                               

1990).

     The  firearm statute,  18 U.S.C.    924(c),  provides in

relevant  part  that whoever  carries  a  firearm during  the

commission  of a crime of  violence shall be  sentenced to an

additional five years' imprisonment (or more if the weapon is

of  a type here not involved).   It is common ground that the

gun need not be proved  to be loaded or operable in  order to

convict, United  States v. Gonzalez,  800 F.2d 895,  899 (9th
                                   

Cir. 1986),  but that a toy  or replica will not  do.  United
                                                             

                             -10-

States v. Westerdahl,  945 F.2d 1083,  1088 (9th Cir.  1991).
                    

The district  court  summed  up  the  evidence  and  held  it

inadequate  to permit  a reasonable  jury to  find, beyond  a

reasonable doubt,  that Kirvan carried a real  gun as opposed

to a toy.

     The government's riposte is to point to a square holding

by  then Circuit Judge Scalia in Parker v. United States, 801
                                                        

F.2d 1382, 1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070
                                              

(1987), that  non-expert  testimony affirming  that a  robber

used  a gun is enough.  The holding was followed without much

discussion by  the  Fourth  Circuit  in  a  case  where  five

witnesses had described the  object as a gun.   United States
                                                             

v. Jones,  907 F.2d 456 (4th Cir. 1990), cert. denied, 111 S.
                                                     

Ct. 683  (1991).  Kirvan in turn points us to cases which, in

upholding  convictions   under  this  or   similar  statutes,

recounted or relied  upon testimony from a firearms expert or

at least a  witness who saw the  robbery and claimed to  know

about weapons.  E.g.,  United States v. Buggs, 904  F.2d 1070
                                             

(7th Cir. 1990); Westerdahl, 945 F.2d at 1088.
                           

     If  fake   guns  were   extraordinarily  rare   in  bank

robberies, it might be fairly easy, absent affirmative proof,

to dismiss the possibility that the gun was a toy.   The jury

had  no  actual data,  which  might  be inadmissible  in  any

                             -11-

event,2  although  it  does  have  considerable  latitude  in

making intuitive judgments about how the world works.  United
                                                             

States v.  Guerrero-Guerrero, 776  F.2d 1071, 1075  (1st Cir.
                            

1985), cert. denied, 475  U.S. 1029 (1986).  Nor  does policy
                   

tilt the  balance, as it might if we faced an issue where the

government had ready access to direct evidence (e.g., whether
                                                    

a  bank is federally insured)  and no excuse  for leaving the

matter in doubt.   Of course, Kirvan has  such access but  we

will not decide  the matter  by relying upon  his failure  to

produce the gun for inspection.3  

     We need not decide  here whether the government's burden

could be met merely by  unembellished lay testimony that "the

robber  carried a  gun."   In this  instance, the  object was

identified by  two witnesses as a  gun; one said that  it was

black and  had a  five  inch barrel  and the  other, who  was

closer,  supplied  more detail:    he said  that  it appeared

"shiny,  silver" in color;  that it was  "[l]arge, very large

                    

     2See 1  McCormack, Evidence    210,  at 949-50  (4th ed.
                                
1992)  (cases discourage  mathematical proof  and probability
data  in  criminal  cases).   Such  data  may  exist.   E.g.,
                                                            
Washington  Post, October 2, 1986, p. C1 ("Neil Hurley, chief
                
of the grand jury  section of D.C. Superior Court,  said that
at  least 10 percent of the  armed robbery cases that he sees
involve fake guns.").

     3The  problem with  an  adverse inference  is the  Fifth
Amendment's  bar against  compelled self-incrimination.   See
                                                             
Griffin v. California, 380  U.S. 609 (1965).  But  cf. Barnes
                                                             
v.  United   States,  412  U.S.  837   (1973)  (upholding  an
                   
instruction  that unexplained  possession of  stolen property
permits an inference of knowledge).

                             -12-

for  a handgun"; and that when it  fell to the floor, it made

"[a] very loud noise.  Heavy object hitting the floor."

     Without deciding  whether less  would do, we  think that

this detail  permitted a rational jury to  conclude that this

was a  "real" gun:  it  was a plausible size,  colored like a

real gun, and quite heavy.  One witness could easily describe

gun metal as black and another as silver.  Although some  toy

guns might be  of similar  size and color,  the heavy  weight

certainly would not be as common in a toy.  And while  a good

replica might still fool a witness at a distance, the chances

of error decline  where, as  here, the witness  saw the  gun,

stationary  and at  a  close distance,  for  a least  half  a

minute.4

     In sum, we think that the jury, which concluded that the

object was  a real gun "beyond a reasonable doubt," cannot be

deemed irrational.  We understand why the trial judge came to

the opposite view.  But judgments of acquittal are subject to

de novo review,  United States v. Reed, 977  F.2d 14, 18 (1st
                                      

Cir.  1992), and if deference is owed  to anyone it is to the

jury.  In  Judge Prettyman's widely cited formulation,  "if a

reasonable mind might fairly have a reasonable doubt or might

fairly  not have  one,  the case  is for  the  jury, and  the

                    

     4Kirvan  says that a robber would be unlikely to leave a
real  gun  unattended  on  the  floor  for  30  seconds;  the
government  says that  a  robber would  not  leave a  replica
unconcealed for  any length  of time.   These inferences,  if
they do not precisely cancel out, are not conclusive.

                             -13-

decision  is for  the  jurors to  make."   Curley  v.  United
                                                             

States,  160 F.2d 229 (D.C. Cir.), cert. denied, 331 U.S. 837
                                               

(1947).  

     For the reasons stated above, the judgment of conviction

on count one is affirmed;  the directed judgment of acquittal
                        

on count two is set aside  and the jury verdict on that count
                         

is reinstated; and the case is remanded to the district court
                                       

for resentencing.

                             -14-
