                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-2018

                        UNITED STATES,

                          Appellee,

                              v.

                     RAYMOND MORENO, JR.,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Robert E. Keeton, U.S. District Judge]
                                                    

                                         

                            Before

                     Breyer, Chief Judge,
                                        
            Torruella and Boudin, Circuit Judges.
                                                

                                         

Lawrence P.  Murray with  whom  Henry F.  Owens, III  and Owens  &amp;
                                                                  
Associates were on brief for appellant.
      
Ralph F. Boyd,  Jr., Assistant  United States Attorney, with  whom
                  
A. John  Pappalardo, United  States Attorney, and  Michael J.  Pelgro,
                                                                 
Assistant United States Attorney, were on brief for appellee.

                                         

                         May 6, 1993
                                         

     BOUDIN, Circuit Judge.   Defendant Raymond Moreno,  Jr.,
                          

appeals his  conviction in the district  court for possession

of  an unregistered  firearm,  26 U.S.C.     5861(d), and  of

ammunition  by  a convicted  felon,  18  U.S.C.    922(g)(1).

Moreno  argues  that  evidence  was lacking  to  support  the

verdict;  that   the  court   erred  in  admitting   what  he

characterizes  as  evidence of  "prior  bad  acts;" and  that

comments by the  prosecutors to  the jury deprived  him of  a

fair  trial.  For the reasons that follow, we affirm Moreno's

convictions.

                              I.

     Moreno  first  argues  that the  evidence  introduced at

trial was  insufficient.  Our inquiry  is a limited  one:  to

decide whether there was evidence from which a rational trier

of  fact could have concluded beyond  a reasonable doubt that

Moreno possessed the firearm  and the ammunition.  Legitimate

inferences  must  be  drawn,  and  credibility determinations

resolved,  in favor  of the  verdict.   See United  States v.
                                                             

Anguilo, 897 F.2d 1169, 1197 (1st Cir.), cert. denied, 111 S.
                                                     

Ct. 130 (1990).

     From   the  government's   evidence  at   trial  (Moreno

presented no evidence  of his own),  a reasonable jury  could

have found the following.  On the evening of  April 18, 1991,

a  group of  five  law enforcement  officers,  while on  foot

patrol  in the  Lenox Street  Housing Development  in Boston,

                             -2-

Massachusetts, heard a series of gunshots coming from another

area within the development.  Three of the officers, Officers

Garvey,  Perkins and  Devane,  ran in  the  direction of  the

shots;  the other  two,  Officer Murphy  and Trooper  Drummy,

returned to their parked cruisers.

     As the  three officers were running  down Hammond Street

in  the direction  of the  shots, they  observed  three black

males,  all  wearing  black  hooded sweatshirts  or  jackets,

emerge from a courtyard in the direction of the gunshots, run

across  Hammond  Street  and  disappear  near  a  cluster  of

buildings across the  street.  One of the  officers described

the  three men  as  running in  a  line in  a "hunched  over"

manner.   There  was  only  the  briefest interval  when  the

defendants together  disappeared from view.   Almost at once,

two  of the three officers, joined by Officer Murphy (who had

left his cruiser to assist in the foot pursuit), saw the same

three men running through a parking lot behind the cluster of

buildings, and gave chase.  

     The officers then saw one of the three men veer off from

the  other two and  run in a separate  direction.  The second

and third men were then seen by the officers to come together

briefly and appeared to pass an object between them.  Officer

Murphy, who was closest to the two individuals, described the

item being exchanged as a dark object about one to one-and-a-

half feet long.  The individual who took this object then ran

                             -3-

off  through a grass courtyard.  The individual who passed on

the   object  immediately  stopped,   raised  his   arms  and

surrendered.   That  individual was  later identified  as the

defendant, Raymond Moreno, Jr.

     Officer Garvey,  in order to  cut off any  escape route,

had  circled  around  to  the  opposite  end  of   the  grass

courtyard.   Officer Garvey soon  saw a black  male wearing a

black hooded sweatshirt enter the courtyard from  the area in

which Moreno had just  been arrested.  After telling  the man

several  times to  stop, Officer  Garvey saw  the man  make a

gesture as if to throw an object aside, and then heard a soft

thud  on the  ground  nearby.    The  man  was  arrested  and

identified as  Frederick Hardy,  who was tried  and convicted

along  with Moreno  but is  not a  party to  this appeal.   A

search of the area  revealed a .32 caliber pistol  about five

to  eight feet from where Hardy stopped and made the throwing

gesture.

     When arrested,  Hardy was not in possession of the foot-

long  object  that the  officers  had seen  him  receive from

Moreno.  The officers then searched the path between the area

of Moreno's arrest and the spot at which Officer Garvey first

observed Hardy.   Hidden in bushes  along that direct  route,

the officers found a double-barrelled sawed-off  shotgun with

a 12  1/2 inch barrel, fully loaded with ammunition.  This is

                             -4-

the firearm and  ammunition which Moreno  is charged in  this

case with having possessed.

     While  Moreno and  Hardy  were being  arrested,  Officer

Devane was  in search of the first  of the three runners, who

had  gone  off  in  a separate  direction.    Officer  Devane

discovered  a black  male,  sweating and  out  of breath  and

wearing  a black  hooded sweatshirt,  hiding in  some bushes.

After arresting the individual and placing him  in a cruiser,

Officer Devane  found a  semi-automatic pistol on  the ground

near where the individual had been hiding.  The pistol was in

the  lock-back position, smelled of gunpowder, and was out of

ammunition, indicating  that it recently had been discharged.

The arrested individual was identified as Steven Fernandes.

     Several officers  then went back to  a central courtyard

in  the  middle  of  the  Lenox  Housing  Development.   This

courtyard was in the general area of the gunshots, and it was

immediately accessible from the spot where the three arrested

men were first observed  by the officers.  In  the courtyard,

the officers found discharged cartridge casings.  These spent

casings were  matched by  a ballistics expert  to the  pistol

that was found next to Stephen Fernandes.

     At the  police station  after his arrest,  Moreno, after

receiving his Miranda warning, denied knowing either Hardy or
                     

Fernandes.  He claimed that he had been standing alone in the

housing development when he  heard shots and started running.

                             -5-

At  trial, however,  a  resident of  the housing  development

testified that  he had  seen Moreno together  with Hardy  and

Fernandes  a number  of  times  over  the  prior  year.    In

addition, Officer Dreary of  the Boston Police testified that

in March 1991 he stopped a  red Isuzu Trooper; Hardy was  the

driver and Moreno was a passenger in the front seat.

     We  think  a reasonable  jury  could  conclude beyond  a

reasonable doubt from this evidence that Moreno possessed the

sawed-off  shotgun  and  its  ammunition.    Officer  Perkins

testified that he "saw [the two men] meet and . . . could see

them  having some  kind of  exchange," but  he was  not close

enough  to describe  the  object.   Officer  Murphy, who  was

closer to the men, did observe the object--which he described

as "about a foot and a half [long]" and "dark  in color."  It

was  found directly in the path Hardy took after the exchange

with  Moreno, prior  to his  apprehension by  Officer Garvey.

Once the police testimony  is credited, Moreno is effectively

tied to the loaded shotgun.  

     The direct evidence as to the  shotgun was reinforced by

other  evidence.   First,  Moreno  and  the individuals  seen

running away were  fleeing from  an area in  which shots  had

been fired--shots that the jury could infer had been fired by

one of  the group, since  a pistol  belonging to  one of  the

three  matched  shell  casings  found  in  the  area  of  the

gunshots.  Second,  Moreno's false denial after his arrest of

                             -6-

a  prior relationship  with  Hardy and  Fernandes suggests  a

guilty  mind and helps rebut any inference that he was merely

in wrong place at wrong time.  The direct evidence, bolstered

by  these  secondary  inferences,  was more  than  enough  to

support the jury's verdict.

                             II.

     Next, Moreno argues that the trial court committed error

by  allowing  the government  to  introduce  evidence of  the

gunshots heard  by the officers prior to Moreno's arrest, the

semi-automatic  pistol found  with  Fernandes and  the  spent

shell casings matching that  pistol.  Describing the evidence

as proof of "other crimes" under Fed. R. Evid. 404(b), Moreno

argues that this  evidence related only  to his character  or

propensity  to commit  crime  rather than  to any  legitimate

issue in the  case.   Rule 404(b) provides  that evidence  of

"other crimes,  wrongs or  acts" is  not admissible to  prove

"the  character  of  a person  in  order  to  show action  in

conformity  therewith."   Such  evidence  is not  prohibited,

however,  if  offered for  "other purposes."   Fed.  R. Evid.

404(b).  See United States v. Rodriguez-Estrada, 877 F.2d 153
                                               

(1st Cir. 1989).

     In this case, the government's evidence of the gunshots,

Fernandes' pistol, the matching spent ammunition, and Hardy's

weapon  supports a  chain  of inferences  independent of  any

tendency of the evidence to show bad character.  The evidence

                             -7-

permits the  inference that Fernandes, with  Hardy and Moreno

in   attendance,  was  the   individual  who  discharged  the

gunshots, and that  the three men were  running together from

the  scene of  that  discharge  when  first observed  by  the

officers.  In turn,  the facts that Fernandes and  Hardy were

armed  and that  the  three men  were fleeing  together after

Fernandes had  discharged three rounds of  ammunition made it

somewhat  more likely that the object Moreno was seen to pass

along  to Hardy  was indeed  the shotgun later  found nearby.

See, e.g., United  States v.  Currier, 821 F.2d  52, 55  (1st
                                     

Cir.  1987) (the  proffered evidence  of  other bad  acts was

"closely intertwined  with the charged offense of possession,

providing both significant contextual material and proof that

the defendant possessed the gun").

     An  example   may  be  of  help   in  understanding  the

inference.  If a defendant were charged with shooting a guard

in  the  course  of  a  bank  robbery,  it  would  surely  be

permissible to show that he was caught fleeing from the scene

of  a  just-robbed  bank  with  two other  persons  who  both

possessed weapons.   The  defendant could certainly  argue to

the  jury that he was  an innocent bystander  who was fleeing

from a dangerous scene.  But the fact of the bank robbery and

the possession  of the weapons by  others arguably associated

with the defendant would surely be relevant evidence that the

jury  could consider  along with  other evidence  against the

                             -8-

defendant.   If the  other evidence included  some eyewitness

testimony  that the defendant had run with the others and had

appeared to be carrying a weapon,  the facts would not be far

from our case.

     Indeed, not  only are  the gun  shots and  other weapons

relevant  to the  government's  case against  Moreno but  the

ordinary  risks   presented  by  Rule  404(b)   evidence  are

especially tame in this  case.  The hand-guns were  not found

with  Moreno but with other defendants and the gun shots were

apparently fired by Fernandes.   In other words  the evidence

suggested "other crimes"  not by Moreno but by  Fernandes and

Hardy.  The usual taint  of "other crimes" evidence--the risk

that the jury will think  the defendant a bad man  because he

committed other crimes--was, so  far as it threatened Moreno,

largely  absent.    If  the  jury  otherwise  thought him  an

innocent  bystander, it had no reason to attribute to him the

crimes of Fernandes and Hardy.

     Of course, if the jury accepted the officers' testimony,

it could conclude that Moreno was  not a bystander innocently

fleeing  from danger but rather was associated with the other

defendants,  had run with them, had handed off his own weapon
                         

to Hardy, and had after his arrest falsely denied knowing the

other two.   If so,  the evidence of  gunshots furnished  the

occasion and context for the flight by all  three defendants;

and  the  weapons possessed  by the  other  two made  it more

                             -9-

likely, if only slightly, that Moreno too might be armed.  At

least the  jury  was entitled  to  consider the  evidence  of

gunshots and  other weapons  and draw  such inferences  if it

chose to do so. 

     In  short,  the evidence  was  clearly  admissible on  a

theory entirely  separate from any  light it might  cast upon

Moreno's "character."  Whether the relevance of such evidence

is substantially  outweighed by  its prejudicial effect  is a

judgment  largely within  the broad  discretion of  the trial

judge.  Fed. R.  Evid. 403; United States v.  Simon, 842 F.2d
                                                   

552, 553 (1st Cir. 1988).  A defendant is entitled on request

to a limiting instruction,  warning the jury not to  draw the

forbidden  inference of  bad character.   Fed. R.  Evid. 105.

Moreno's  counsel  in   this  case  did  not   seek  such  an

instruction, requesting  only a far  broader one to  which he

was not entitled.1

                             III.

     The  most  troubling  aspect  of  this  appeal  concerns

statements  made by  the  government during  argument to  the

jury.   In his opening remarks, the prosecutor stated, "[T]he

evidence  will show  that  [the police  officers] were  doing

                    

     1Asked what limiting instruction he would like, Moreno's
counsel  asked for  one  telling the  jury  that evidence  of
Fernandes' pistol and the  spent shell casings "is not  to be
considered against the case of Mr. Moreno" or  "in no way can
be used by  this jury"  against Moreno.   Since the  evidence
could  properly be  used against  Moreno, the  district court
quite properly refused this instruction.

                             -10-

their jobs protecting the community that  has been plagued by

violence, senseless violence, shootings and killings.  That's

why they were there and that's why we're here today."

     There  was, of  course,  no  evidence  in this  case  of

"senseless violence" or "shootings  and killings," and it was

patently improper for the prosecutor to make these remarks to

the jury.   The argument, playing  upon the jury's  emotional

reaction to neighborhood violence,  was outside the bounds of

legitimate  argument  and cannot  be  condoned.   See  United
                                                             

States  v.  Johnson,  952  F.2d  565,  574  (1st  Cir.  1991)
                   

(admonishing  "prosecutorial  commentary  serving no  purpose

other  than to  inflame the  passions and  prejudices of  the

jury,  and  to interject  issues  broader than  the  guilt or

innocence of the accused"  (citations and internal quotations

omitted)), cert. denied, 113 S. Ct. 58 (1992).
                       

     We do not believe,  however, that reversal is warranted.

The  experienced trial judge, who was in the best position to

appraise the prejudicial  impact of the  prosecutor's remark,

thought  a curative  instruction  the correct  remedy.   When

objection was made,  at the end of the  prosecutor's opening,

the trial judge forcefully cautioned the jury:

     I must give you some instructions to disregard some
     of  the  things  that  were  said  in  the  opening
     statement.   There were  references to  violence in
     the area, to other incidents in the area than those
     that  are the subject matter of this trial.  I will
     instruct you to disregard  all of those references.
     Some were made very early in the opening statement,
     others were made in the course of it and toward the

                             -11-

     end of the opening  statement.  We are here  to try
     on the evidence with respect to the charges against
     these  defendants, only  the charges  against these
     defendants.    It  is  not  your  function  or  the
     function  of  the  court   or  anyone  else  to  be
     concerned about  anything  other than  the  charges
     against these defendants  and the evidence  bearing
     upon  that.   You  will erase  from  your mind  the
     arguments  about  other  violence,  and  the phrase
     "senseless  killings"  was  used.    Those are  not
     matters to  be considered by  you as you  weigh and
     evaluate the evidence that relates to this case.

We think that  this powerful and  contemporaneous instruction

was  adequate   to  dispel   any  prejudice  caused   by  the

prosecutor's remarks.   See United  States v. Giry,  818 F.2d
                                                  

120, 134 (1st Cir.), cert. denied, 484 U.S. 855 (1987).
                                 

     What  is  no less  disturbing  is that,  even  after the

warning  embodied by this  instruction, the  prosecutor again

departed from the straight and narrow in his closing.  In the

course of arguing that  the shotgun was not just  tossed away

but   deliberately   concealed,  the   prosecutor--apparently

carried away--continued:   "Forget about the  fact that maybe

Mr.  Hooker [who lived nearby] or  his wife or his three kids

might come  out and look at the gun and get their heads blown

off."   The court then  gave a lengthy  curative instruction,

and the case  proceeded.  The curative instruction was rather

oblique  on this  issue  but  it  was  lengthy,  and  we  are

                             -12-

satisfied  that the jury got  the message to  ignore what had

just been said.2

     If  we thought  that this  second foray  was deliberate,

there might  well be a basis for  reversal as a deterrent for

the  future, see United States  v. Capone, 683  582, 586 (1st
                                         

Cir.  1982), even though this remark  did not directly relate

to  Moreno for nothing in  the evidence suggested that Moreno

had carelessly concealed the weapon  where Mr. Hooker or  his

family  might find it; that was the act of another defendant.

In context, however, the  prosecutor's remark does not appear

to have been  a deliberate disregard of the  court's earlier,

implied warning.  Rather,  although improper it was seemingly

a  sudden  expression of  indignation  at the  tail-end  of a

legitimate larger point.  

     Finally,  in  appraising possible  prejudice, we  do not

ignore the fact that the case  against Moreno was ample.   As

we  said in Giry, 818  F.2d at 133,  "prejudice that survives
                

the charge is deemed less likely to have affected the outcome

of the trial where strong evidence supports the prosecution's

case".  Here, both  judges who join in this  majority opinion

have  independently reviewed  the  transcripts  of the  trial

testimony in this case,  in addition to the briefs;  and both

                    

     2The judge was, at the same time, cautioning the jury to
give  no  weight to  any personal  opinions expressed  by the
prosecutor, then  or earlier.  After  completing the curative
instruction, the  judge gave  the lawyers the  opportunity to
ask for more, and neither requested any addition.

                             -13-

are satisfied that the  case against Moreno was  quite strong

and that the  objectionable remarks, in context and  in light

of  the instructions given by the trial judge, would not have

swayed the jury.

     As  the  evidence  already  recited  shows,  Moreno  was

directly identified  by two  police officers as  running from

the area after gunshots.  He was seen by one  of the officers

to hand  over a  foot-long object  to a  second man, and  the

sawed-off shotgun in question  was found near the path  where

the  third one had run shortly before he too was apprehended.

This  evidence was  coupled with  other evidence  showing the

possession of  weapons by  Moreno's companions, their  flight

together with  Moreno, and Moreno's denials that  he knew the

other  two--denials  proved  to  be false  by  two  different

witnesses.

     The trial of this  relatively simple case stretched over

10 days.  The  trial time was devoted entirely  to government

evidence, since the defendants  did not testify and presented

no  witnesses of  their  own.    The  government  put  on  21

witnesses, including  five officers  who were present  at the

time that Moreno was pursued and whose key testimony has been

summarized  above.  We also note that, although this does not

excuse  the  government's  missteps,  defense   counsel  made

arguments  before the  jury that  were not  beyond criticism,

including cross-examination  inappropriately injecting racial

                             -14-

issues  into the  case.   In sum,  the government's  case was

substantial and the imperfections in counsel's  rhetoric were

not all on one side.     On  balance,  we are  convinced that

the prosecutor's missteps  did not deprive  Moreno of a  fair

trial or a  just outcome.  The  prosecutor's improper remarks

were by  and large aberrations, met  by prompt countervailing

instructions, in  a 10-day trial that  was otherwise consumed

by a detailed  exposition of  the events of  April 18,  1991.

This court has found  that even more objectionable statements

by prosecutors  did not  warrant reversal where  a corrective

instruction  was given, e.g., Giry, 818 F.2d at 120 (argument
                                  

comparing charged  drug offenses  to an "agree[ment]  to kill

the judge"), or no  timely objection was made,   e.g., United
                                                             

States  v. Machor, 879 F.2d  945, 955 (1st  Cir. 1989) (drugs
                 

"poisoning our community, and our kids die because of this"),

cert. denied, 493 U.S. 1094 (1990).  The district court acted
            

within  its discretion in  this case  in concluding  that the

prosecutor's misstatements did not  so "poison[] the well" as

to require a new  trial.  United States v.  Mejia-Lozano, 829
                                                        

F.2d 268, 274 (1st Cir. 1987).3

                    

     3We have  reviewed the  other remarks of  the prosecutor
objected to by Moreno, including the distinct claims that the
prosecutor disparaged defense counsel and engaged in improper
expressions of personal belief.  In  some instances, we think
the prosecutor made permissible  arguments and in others, all
milder  than the two discussed in text, we think the curative
instructions given were adequate.

                             -15-

     Nevertheless,  for the  sake of  future cases,  we think

this worth saying:  inflammatory comments to the jury are not

only  bad  tactics in  the case  at  hand but,  especially if

repeated  after warnings,  will exhaust  the patience  of the

court  and   gradually  undermine   the  reputation  of   the

prosecutor's office.   Trials, to  be sure,  are hard  fought

contests  where not  every remark  can be  carefully weighed.

But for the government  in a criminal case, fairness  is more

important than victory.  Although we view the evidence as far

more substantial than does  our dissenting colleague and have

some (but  not blind)  faith in corrective  instructions, the

government would do well to take this warning seriously.

     Affirmed.
             

                             -16-

   TORRUELLA, Circuit Judge (Dissenting).  With all due respect
                           

to my  esteemed colleagues in the majority, I must dissent.  I do

so   reluctantly   because  although   I   disagree   with  their

characterization of the strength  of the evidence against Moreno,

see ante  at 13, I agree that in all probability the jury verdict
      

would have been the  same sans the breaches committed  during the
                            

trial.  My reticence,  however, is not sufficient to  overcome my

perturbation  at what I  perceive to be  the virtual condonation,

with  nary  but  mild  admonitions   on  our  part,  of  repeated

prosecutorial transgressions,  almost to the point  of a pattern.

See,  e.g., United States v. Agudelo, No. 90-1465, 1993 U.S. App.
                                  

LEXIS  4970 (1st  Cir.  March 18,  1993)  (admission of  improper

testimony);   United States v.  Williams, 985 F.2d  634 (1st Cir.
                                      

1993) (admission  of improper evidence); United  States v. Smith,
                                                              

982 F.2d 681 (1st  Cir. 1993) (improper argument by  prosecutor);

United States v. Hodge-Balwing, 952 F.2d 607, 611 (1st Cir. 1991)
                            

(improper argument  by prosecutor).   The majority  itself points

out  similar cases  falling  within this  pattern,  but fails  to

appreciate  the extent  of its  perniciousness.   See ante  at 14
                                                        

(citing Machor, supra,  and Giry, supra, as  examples of "fierce"
                                     

arguments by prosecutors).  Compounding this problem is  the fact

that Rule  404(b)  and  the harmless  error  doctrine  have  been

converted, not to  say subverted,  into a wall  behind which  the

Government apparently can continue ad infinitum to take pot shots
                                             

with impunity.

                             -16-

   I register my  protest because our  past cautions, timid  as

they were, see, e.g., Agudelo, slip op. at 6 n.7 ("this is not to
                           

forget our complaint . . . about giving  the government two bites

at the apple:  push for evidence believed to be damning, and then

say it was meaningless");  Williams, slip op. at 8-9  ("to infect
                                 

and  jeopardize a  prosecution with  such evidence is  unwise and

unjustifiable"),  have  not only  been  ignored,  but alas,  have

probably  encouraged this  continued conduct.    I fear  that the

current warning, ante at 15, although somewhat more forceful than
                   

those  that  have come  before, is  likely  to further  erode our

institutional credibility, if  the past is any  indication of the

future.    More  importantly,  I believe  that  the  prosecutor's

actions  in  the   present  case  unconstitutionally   prejudiced

Moreno's right to a fair trial.

   To  set the  trial in  proper perspective,  a review  of the

facts  is  appropriate.   Three  unidentified  persons were  seen

running from the sound  of gunfire; at some point  thereafter one

of  these persons appeared to pass a one to one-and-one-half foot
                        

long dark object  to another person who kept on  running with the

unknown object; the passer then stopped running, was arrested (we

know  not for  what  crime at  this  point), and  eventually  was

identified  as Moreno;  a  person later  identified as  Frederick

Hardy,  the receiver of  the unknown object,  was intercepted and

arrested coming  from where Moreno  was detained; Hardy  was seen

throwing  away  an object,  which was  later recovered  and which

turned out  to be a .32 caliber pistol; no other weapon was found

                             -17-

on or near Hardy, but a search of his suspected  route revealed a

loaded, double  barrel, sawed off  shotgun, hidden in  the bushes

along the  direct  path  from  where Moreno  was  arrested;  this

shotgun and its ammunition  are the weapons with which  Moreno is

charged with illegally possessing.  

   At trial, the prosecutor  introduced as Rule 404(b) evidence

against Moreno a third  weapon found elsewhere in  the possession
                                            

of a  third individual, Stephen Fern ndes.   This weapon was  a 9
         

mm. caliber pistol, as well as 10 casings fired from  that weapon

at the scene of the original shooting.

   The prosecutor  also  made improper  statements, which  fall

into three groups, at different points.  First,     he     linked

appellant to the  rampant violence in the community, insisting at

opening argument that "the evidence  will show that [the  police]

were doing  their jobs  protecting the  community  that has  been

plagued by violence, senseless violence, shootings and killings."

He continued "[t]hat's why  they were there and that's  why we're

here  today."  The prosecutor referred to the officers as members

of an anti-gang unit  on four occasions, and instructed  the jury

not  to "reward"  the  defendants for  discarding  weapons.   The

prosecutor injected violence at  every opportunity, stating,  for

example,  that  "[i]f you're  walking  down  the  street  with  a

baseball  bat, it's not  illegal to possess  it.  If  you use the

baseball  bat to  bash in  somebody's head, that's  illegal," and

that "Mr. Hooker or his wife orhis three kids might  come out and

look at  the gun and get  their heads blown off."   In describing

                             -18-

the shotgun,  which had  not  been fired,  the prosecutor  argued

"[s]omebody  had to move that  lever, crack open  that barrel and

put those two  shotgun shells  into the shotgun.   Somebody  does

that for a reason.   Just remember that these  three people armed

themselves with three guns."  The prosecutor proceeded "[a]ll you

had  to do  was pull  the trigger.   Think  about going  into the

middle  of  that housing  development  armed  with those  weapons

together and firing one of these weapons."  

   Second, the prosecutor improperly vouched for the government

witnesses, intimating that they possessed some information beyond

the evidence  presented.  In discussing  the "cylindrical object"

that appellant  passed on  to another individual,  the prosecutor

warranted  that the  police "knew  what it  was, but  they're not

overstating  their testimony."   He  later asserted  "[t]hey knew

what the object was.  They were going to find it."

   Third,   the  prosecutor   urged  the   jury  to   disregard

appellant's counsel  because defense  attorneys "are paid  to see

see  [sic]  things  in  a   different  way."    Furthermore,  the

prosecutor  contended  at  one  point that  defense  counsel  was

"talking  out of  both  sides of  his  mouth."   The  prosecutor,

discussing a defense argument, explained "I'm not quite sure what

that meant, but I would suggest that a part of it was designed to

divert your attention."   

   As  the  majority points  out,  the  prosecution's statement

appealing  to  the  jury's  fear  of  neighborhood  violence  was

"patently  improper"  and  "outside  the  bounds  of   legitimate

                             -19-

argument and cannot be condoned."  Id. at pp. 10-11.   "[N]o less
                                    

disturbing,"  finds  the majority,  is  that  "even after  [being

warned]  the  prosecutor again  departed  from  the straight  and

narrow  in  his closing."    Id. at  12.   This  would  have been
                              

sufficient  basis for  "reversal  as a  deterrent," the  majority

tells us, only if "this second foray [had been] deliberate."  Id.
                                                               

This  observation is  irrelevant if  the  prosecutor's statements

caused  harm to  defendant, and  harm  undoubtedly was  caused by

these and other statements.

   My colleagues place too much faith on the practical value of

the curative instructions given by the trial judge, the second of

which  was   admittedly  "rather   oblique"  as  to   the  matter

objected.4  Id.  at 12;  see also United  States v. Akinola,  No.
                                                         

92-1587  (1st Cir. Feb.  2, 1993) ("it is  the combination of the

trial  judge's  instructions  .   .  .  that  would  render   the

prosecutor's  putative violation  harmless").   Empirical studies

have established  that juries tend to  consider relevant evidence

in a case even when  it is ordered stricken from the record.  See
                                                               

Reid Hastie, Steven  D. Penrod and  Nancy Pennington, Inside  the
                                                               

Jury  87, 231 (1983).   In fact,  juries are even  more likely to
  

consider such evidence if admonished by the court not to consider

it, than if  no specific instruction is  given.  See Saul  Kassin
                                                  

                  

4  The majority  indicates that they "are satisfied that the jury
got the  message to ignore what had just  been said."  Id. at 12.
                                                        
I  would ask  rhetorically what  there is  in the  instruction to
cause such  reassurance.   Certainly nothing in  its obliqueness,
and  I would  think, little  in its length  would commend  such a
conclusion.

                             -20-

and   Lawrence   Wrightsman,   The  American   Jury   On   Trial:
                                                               

Psychological Perspectives 108-09 (1988).   Even more troublesome
                        

to  a criminal  defendant  in Moreno's  position are  the studies

indicating  that  juries   tend  to  forget  the  source  of  the

information they remember, and are often unable to recall whether

the source of information came from a witness, or from one of the

attorneys during the opening statement or  closing argument.  Id.
                                                               

at 106.   These studies  also show that  juries treat  statements

made  by counsel  in opening  statements as  fact even  though no

evidence is later introduced to support the attorney's assertion.

Id.  Harmful impact  may also result from improper remarks  in an
 

opening statement, caused by  a psychological phenomenon known as

the  "primacy effect," which is a tendency to make snap judgments

based on information presented early  in the trial.  Id. at  134.
                                                      

Once  jurors form  a  first impression,  they  often discount  or

reject facts that challenge  their views, and instead  fill their

trial memories in ways that favor their initial reaction.  Id. at
                                                            

134-35;   see  also   N. Anderson,  Foundations   of  Information
                                                               

Integration Theory 179-81 (1981).
                

   Our cases  repeatedly have  ignored the practical  effect of

improper  argument and  evidence  on the  jury  by excusing  such

impropriety as  harmless error  and then chiding  the prosecutor.

See, e.g., Agudelo, supra; Williams, supra; Hodge-Balwing, 952 at
                                                       

611 ("we review only 'blockbusters: those errors so shocking that

they   seriously  affect  the   fundamental  fairness  and  basic

integrity  of the  proceedings conducted  below'").   The studies

                             -21-

discussed  above clearly  demonstrate a  common sense  conclusion

with empirical data:  the  prejudicial influence of such argument

and  evidence should not be  easily disregarded in  the manner we

have done,  as it flows more  deeply than we have  assumed.5  The

studies lead  to  one inescapable  conclusion in  regard to  this

case:  there is no way of knowing if the stricken remarks were in

fact  not influential in prejudicing  the jury in  a powerful and

lasting way, and thus tipping the balance against him.

   To this prejudice  we add the impact on the  jury of the so-

called 404(b) evidence.  This evidence proffered under the  aegis

of this rule consisted of:  (1) testimony that pistol shots fired
                                                   

by  unknown  persons  were  heard  by  police  officers prior  to
         

Moreno's arrest; (2) a 9 mm. caliber pistol that was found on the
                                         

ground near another individual; and  (3) ten spent shell  casings
                 

matching  that pistol,  which  were found  near  area from  which
                   

Moreno and three other men were seen running from after the shots

were heard.  As noted, supra at 15, the 9 mm. pistol was found in
                          

possession of a third person, Stephen Fern ndes, who was not even

tried  together with appellant.  All this evidence was allowed as

probative  in establishing  "other  crimes, wrongs  or acts,"  by
                                                               

                  

5  Thus, the  "powerful and contemporaneous instruction" referred
to  by the  majority, ante  at 11,  was indeed  such, but  not as
                        
intended.   It served to  remind the jury  "about other violence"
and senseless killings.  Id.
                          

 Indeed,  these  studies   starkly  reveal  the  dilemma   that
attorney's face in this area of the law.  They must choose either
to ask for a  curative instruction, increasing the impact  of the
improper argument  or evidence, or  remain silent, in  which case
they  waive the issue on appeal, see United States v. Tejeda, 974
                                                          
F.2d 210, 215 (1st Cir. 1992).

                             -22-

Moreno, with  regard to  charges  that he  illegally possessed  a
                                       

loaded  sawed-off  shotgun.    This is  claimed  to  be  evidence
                        

unrelated to Moreno's character or propensity to commit crime and

thus admissible  for  nebulous "other  purposes."   Fed. R. Evid.

404(b).

   This is clearly improper  use of Rule 404(b).   The evidence

was not  even proof  of wrongful  acts by Moreno,  but, at  best,
                                              

evidence  of other  wrongful acts  by  third persons  in Moreno's
                                                  

presence.    Because Rule  404(b)  should  only be  invoked  when

prosecutors  seek  to  introduce   evidence  of  prior  bad  acts

committed  by the defendant, it is error to analyze this evidence

under that rule.   United States v. Moccia, 681  F.2d 61, 63 (1st
                                        

Cir. 1982)  (Breyer, C.J.) (Rule 404(b)  forbids prosecution from

"asking  the jury to  infer from the fact  that the defendant has
                                                           

committed  a bad act in the past, that he has a bad character and

therefore  is more  likely  to have  committed  the bad  act  now

charged")  (emphasis added).   The proper inquiry  is whether the

evidence is  relevant, and  whether it  is more  prejudicial than

probative.  The  correct answer to the first question  is no, and

the answer to the second is yes.

   At  best  the  evidence   shows  mere  presence  during  the

commission of other crimes by other persons.  It asks the jury to
                                         

conclude  that appellant somehow was guilty of that crime, and by

extension,  guilty  of  the  current  crime.    Appellant's  mere

presence  at the  scene  of  that  crime,  of  course,  does  not

establish  appellant's guilt of that crime.  See United States v.
                                                            

                             -23-

Aponte-Su rez, 905 F.2d 483, 491 (1st Cir.) (mere presence at the
           

scene of a crime and  knowledge that a crime was to  be committed

is  not proof of  guilt), cert. denied, 498  U.S. 990 (1990); see
                                                               

also Nye  &amp; Nissen v.  United States, 336  U.S. 613, 619  (1949).
                                  

Furthermore, and  with all  due respect, concluding  that persons

present at the scene  of a shooting, and thereafter  fleeing, are

more likely  to be carrying weapons  is highly illogical.   It is

just as likely that persons fleeing  the scene of a shooting will

be either unarmed victims or by-standers, and in fact, it is more

probable that they would have more  of an incentive to flee,  and

faster, precisely because they were unarmed.  Thus, the inference
                                    

that it is more likely that appellant is guilty of the  felon-in-

possession crime because he was fleeing from the scene of another

crime committed by other persons is insupportable.   The evidence

is constitutionally and factually irrelevant.

   Even if the evidence was relevant, its probative value pales

in comparison  to its  prejudicial effect.   Any probative  value

that the  evidence may  have stems  from extended  inferences and

speculation about  the probabilities of  people carrying weapons.

Inferences and  speculation, however, are infected  too easily in

this case by the transference of guilt from the shooting of a gun

by a third  party to  the charged crime  of possession,  ensuring

that a jury will  draw all doubt  against appellant.  See  United
                                                               

States v. St. Michael's Credit Union, 880 F.2d 579, 602 (1st Cir.
                                  

1989)  (danger  that jury  might convict  defendant on  theory of

guilt  by  association).    When  added  to  the  impact  of  the

                             -24-

prosecutor's  improper argument concerning senseless killings and

community violence, the prejudicial impact becomes manifest.  The

majority opinion chooses to ignore the prejudicial effect of this

evidence,   concluding  that  the   defense  somehow  waived  any

consideration of the issue.

   Lastly,  let us return to the trial itself, and consider the

overall impact of these  breaches.  I have already  conceded that

even without  the Rule 404(b) evidence,  appellant probably would

not  withstand a  Rule 29  motion.   The evidence  concerning the

cylindrical object and  the shotgun is  perfectly valid, and  one

can conclude that  the charged  possession of a  shotgun in  fact

occurred from it.   The  conclusion can only  be reached  through

extended  inferences, though,  because no witness  testified that

they actually saw Moreno with the weapon, but only that he passed

something  to someone  who  was later  found  nearby the  weapon.

Given  the  prejudice  already  infused  into the  trial  by  the

improper  argument and  evidence,  I do  not  see how  it can  be

discounted   that  the   required   inferences  supporting   this

conclusion were not themselves infected.  In all likelihood  this

prejudice  would  make the  jury  more  predisposed to  draw  the

required inferences against appellant,  thus tipping the  balance

against him.

   What we have here is a vulnerable case requiring the jury to

make substantial inferences in order to convict.  The prosecution

beefed  up  its case  by clearly  improper statements  at crucial

stages of the trial, and threw in pseudo 404(b) evidence for good

                             -25-

measure.   Although the defendant did not  create this situation,

he is asked to assume  all the risks it generates.   Somehow this

is not my  idea of a  fair trial.   It contradicts all logic  and

practical experience.  It  is past  due  that this  court send  a

clear message  regarding  the standards  that are  expected of  a

litigator whose motto is that "[t]he United States wins its point

whenever justice  is done  its citizens  in the courts."   It  is

better that this message be given in this case  than in a case of

more societal consequence.

   This  appellant did not get a just  trial.  A new one should

be ordered.

                             -26-
