
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1719                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DENNIS SULLIVAN,                                Defendant, Appellant.                                 ____________________        No. 95-1760                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    THOMAS PLATT,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                        Selya, Stahl and Lynch, Circuit Judges.                                                ______________                                 ____________________            Judith H. Mizner for appellant Dennis Sullivan.            ________________            Perry O'Brian for appellant Thomas Platt.            _____________            Margaret  D. McGaughey,  Assistant  United  States Attorney,  with            ______________________        whom  Jay  P. McCloskey,  United States  Attorney,  was on  brief, for              _________________        appellee.                                 ____________________                                     May 31, 1996                                 ____________________                                         -2-                      LYNCH,  Circuit Judge.    An armed  robbery of  the                      LYNCH,  Circuit Judge.                              _____________            Country  Hospitality Inn in Bangor, Maine in 1994 that netted            the  robbers  approximately  $520 was  prosecuted  federally.            Defendant  Dennis Sullivan  was  sentenced for  the crime  to            spend almost the  next thirty  years of his  life in  prison.            Defendant  Thomas Platt  was  sentenced to  more than  thirty            years.   They appeal,  ably arguing  that the prosecutor  was            overly   zealous,   the   evidence   insufficient   and   the            instructions deficient.  While the prosecutor  overstepped in            asking  one  witness  to   comment  on  the  truthfulness  of            another's  testimony, the  misstep was  harmless error.   The            prosecution presented  enough evidence to prove  its case and            the instructions contained no error.  We affirm.                                          I                      Two  masked  men,  one  with a  sawed-off  shotgun,            robbed the  Inn in the early  morning of July 28,  1994.  The            Inn's night manager was  faced with the shotgun by a  man who            jumped  over the  countertop  and told  the  manager to  look            straight ahead and not at him.  Startled, the manager did not            get a full look at the robber.  He did get a good enough look            to testify that the robber was a man of medium build, between            5'8"  and 5'10" high, weighing between 140 and 160 pounds and            in  his early to mid-twenties.   The robber wore some sort of            ski  mask, or combination of  masks, and dark  clothing.  The            manager heard, but did not see, a second robber.  The robbers                                         -3-                                         -3-            took  the  manager's checkbook,  his  $160 in  cash,  and his            grocery store  and bank cards.  The robber with the gun asked            the manager where the Inn's money  was.  The manager told him            it  was in  a drawer.   The  second robber  said that  he had            gotten  the drawer open and the robbers took the $360 inside.            The robbers told the manager to  lie down on the floor.  They            taped his eyes and mouth shut with duct tape and fled.                      Shortly thereafter, the  police stopped a car  with            four men but released them.   In the car were the  defendants            and two companions, Dale Braley and Timothy Boudreau.  Braley            and Boudreau eventually became cooperating witnesses.                      Meanwhile  the investigation  proceeded.   A police            dog  followed the  robbers' scent across  the field  around a            barn next  to an abandoned  house.   At the house  the police            observed tire tracks from a car that had rapidly accelerated.            Later, a citizen observed  a maroon bag on a  nearby roadside            and told the police about it.  The bag contained, among other            things,  a sawed-off  shotgun, a  locked box with  a shoulder            holster  inside  of  it,  two  masks,  dark  sweatshirts  and            camouflage hats.  It also  contained the rest of the roll  of            the  duct  tape  used  to bind  the  manager,  the  manager's            checkbook and his bank cards.  The bag had a  tag bearing the            name "Angela Turner."  Ms. Turner, it turned out, was Platt's            girlfriend.                                         -4-                                         -4-                      The scheme unravelled.   The police followed  leads            to Braley  and Boudreau, who incriminated  Platt and Sullivan            while minimizing their own  roles in the crime.   Hearing the            police  were looking  to  question them,  Platt and  Sullivan            disappeared.   But  when  arrest warrants  were issued,  they            surrendered.                      Sullivan and Platt were  charged with conspiracy to            obstruct commerce  by  robbery in  violation of  18 U.S.C.               1951,  obstructing  commerce  and  attempting  the   same  by            committing robbery in violation  of 18 U.S.C.    1951  and 2,            and using  or carrying a  firearm in  relation to a  crime of            violence, and aiding  and abetting the same,  in violation of            18 U.S.C.     924(c)  and 2.   Platt and  Sullivan were  each            charged  individually  with  possession   of  a  firearm  not            registered to them in  the National Firearms Registration and            Transfer  Record in  violation of  26 U.S.C.      5861(d) and            5871.   They were  also each charged  individually with being            felons in possession of  firearms, in violation of 18  U.S.C.               922(g)(1),  924(a)(2) and 924(e)(1).   They were convicted            on  all  counts save  for  Sullivan's  acquittal  on the  two            firearm possession counts.                      It was clear that the four men were connected  with            the  crime and two had  actually committed it.   The question            was  which two.   At  trial the  theory  of defense  was that            Braley  and  Boudreau  had done  it  and  that  there was  no                                         -5-                                         -5-            reliable identification of the defendants.  While a footprint            was  found on the Inn manager's countertop, it did not appear            to belong to either Sullivan or  Platt and the police did not            do the work to identify whose footprint it was.                        At trial,  Braley testified  that the foursome  had            decided to commit  a crime and went  riding around in a  car.            Braley  and Boudreau both said  that Sullivan, who had worked            as a pizza delivery person, mentioned that the Inn would have            only  one employee there  and would  be a  good target  for a            robbery.  Braley testified  that they drove to  the abandoned            house  near the  Inn.   Sullivan and  Platt donned  masks and            camouflage gear  and walked  across a  field toward  the Inn.            Later, Sullivan and Platt returned.  They "dash[ed]" into the            car and told Braley to get out of there because they had seen            a cop.   In the  car, Sullivan said,  "I got that  guy good."            While holding his finger up to  the back of Braley's head  as            if he were pointing  a gun, Sullivan said he had  jumped over            the  motel counter and told the night manager to "[g]et right            down on the ground."   After the group had driven about eight            miles,  they noticed  a police  car  coming toward  them and,            afraid they might be  stopped, tossed the maroon bag  out the            window.                        The  girlfriends of the  defendants implicated them            in the  crimes, but attempted  to recant those  statements at            trial.    Braley  and  Boudreau acknowledged  they  had  been                                         -6-                                         -6-            charged  with involvement  with the  robbery in  state court.            Another  witness,  Vaughn  Stevenson,  testified  that  Platt            wanted to purchase the  sawed-off shotgun and that Stevenson,            who acted as  middleman for the  transaction, got the  weapon            from  the seller and put it into Platt's closet.  Stevenson's            friend, Danny Cray, also testified that Platt said  he wanted            to purchase the  shotgun and that Stevenson had delivered the            shotgun to the place where Platt was living.                      Sullivan argues that  the evidence was insufficient            to support his conviction  of using or carrying a  firearm in            connection with a crime of violence, particularly in light of            his  being  acquitted on  the  charges  of possession  of  an            unregistered  firearm and  being a felon  in possession  of a            firearm.  Sullivan also  argues the instruction on reasonable            doubt was in  violation of  his due process  rights and  that            several  prosecutorial  actions,  including the  prosecutor's            asking  Sullivan  to  comment  on  the  veracity  of  another            witness's  testimony, violated  due process.   Finally, under            different  labels  he  attempts   to  mount  an   ineffective            assistance of counsel claim.                        Platt  argues  that  the district  court  erred  in            permitting the prosecutor to  question Sullivan as to whether            the  other witness  lied.   In  addition,  he argues  that  a            statement  made  by  the  prosecution  in  opening   argument                                         -7-                                         -7-            violated  his  Fifth Amendment  rights  and  that there  were            evidentiary errors.                        We treat each defendant's claims separately.                                          II                                       Sullivan                                       ________            Sufficiency of the Evidence            ___________________________                      In assessing a challenge  to the sufficiency of the            evidence,  we "review  the  record to  determine whether  the            evidence and  reasonable  inferences therefrom,  taken  as  a            whole and in  the light  most favorable  to the  prosecution,            would  allow a rational jury to determine beyond a reasonable            doubt that  the defendants were  guilty as charged."   United                                                                   ______            States  v. Mena-Robles,  4 F.3d 1026,  1031 (1st  Cir. 1993),            ______     ___________            cert. denied, 114 S. Ct. 1550 (1994).            _____ ______                      Sullivan's  assertion  that  there was  not  enough            evidence  to show he carried or used the shotgun stresses two            points.   First, Sullivan says, it is undisputed that the gun            belonged to Platt and that the night manager did not see  who            carried  the gun.  He claims no  other evidence linked him to            the gun.  Second, he  says that the weakness of the  evidence            is  revealed by the jury's acquitting him of being a felon in            possession  of a  firearm and  of possessing  an unregistered            weapon.                        As  to the  latter, "'[v]erdict  inconsistency does            not indicate that the  government necessarily failed to prove                                         -8-                                         -8-            an essential element of its case beyond a reasonable doubt.'"            United  States v.  Calderon, 77  F.3d 6,  10 (1st  Cir. 1996)            ______________     ________            (quoting  United States v. Lopez,  944 F.2d 33,  41 (1st Cir.                      _____________    _____            1991)); see also United States v. Powell, 469 U.S. 57 (1984).                    ___ ____ _____________    ______            An inconsistent verdict does  not require vacating a criminal            conviction  as long as the appellate  court is satisfied that            there  was  sufficient  evidence  to sustain  the  counts  of            conviction.  See Calderon, 77 F.3d at 10.                         ___ ________                      A jury could well have found that Sullivan actually            carried or used the  gun himself or, at the  least, knowingly            aided or  abetted the carrying  or use  of the gun.   It  was            clear  that at least one of the robbers carried the sawed-off            shotgun.   The  night manager testified  that the  robber who            accosted him  brandished a shotgun.   That robber  "used" the            firearm.  See  Bailey v. United  States, 116 S. Ct.  501, 508                      ___  ______    ______________            (1995).  A reasonable jury could have found that Sullivan was            that robber.  Braley testified that after the robbery, in the            car, Sullivan  put a pretend gun to Braley's head, apparently            imitating what he had  done to the night manager.  And, there            was testimony that Sullivan, in advance of the robbery, while            at  Platt's home,  picked up  the gun  and commented  that it            would be good to use in a robbery.  The  evidence showed that            the two  robbers walked across the  field to the Inn.   It is            reasonable to  infer that the gun  was brought to  the Inn by            one  or both and that the two  robbers were each aware of the                                         -9-                                         -9-            shotgun  and its intended use.  A sawed-off shotgun is hardly            inconspicuous.1   The gun  was brought back  from the robbery            and put  in the bag  later abandoned by  the four men  in the            car.  In the bag were the masks and camouflage  garments also            used in the  robbery.   The evidence was  sufficient to  show            that  Sullivan knew  the  shotgun would  be  used or  carried            during  the robbery and that he took some action intending to            cause the  gun to be used  or carried.  See  United States v.                                                    ___  _____________            Luciano-Mosquera,  63  F.3d  1142,  1150  (1st   Cir.  1995),            ________________            petition for cert.  filed, 64  U.S.L.W. 3765  (U.S. Apr.  26,            ________ ___ _____  _____            1996) (No. 95-1775); see also United States v. Price, 76 F.3d                                 ___ ____ _____________    _____            526, 529-30 (3d Cir. 1996) (The "[accomplice without the gun]            probably knew  in advance,  and  most certainly  knew at  the            time, what [the one with the gun] was doing."); United States                                                            _____________            v. DeMasi, 40  F.3d 1306, 1316  (1st Cir. 1994)  (one can  be               ______            held  liable under aiding and abetting theory if he knew that            weapons would be used during the robbery),  cert. denied, 115                                                        _____ ______            S.  Ct. 947  (1995).    The  jury  could  have  found  actual            knowledge and thus could easily have found that Sullivan knew                                            ____________________            1.    United States v. Spinney, 65 F.3d 231, 238-39 (1st Cir.                  _____________    _______            1995),  which   vacated  the   firearms   conviction  of   an            accomplice,  is, on  its facts,  inapposite.  The  firearm in            Spinney  was a handgun that  was not visible  when the robber            _______            entered the bank and  the accomplice charged with  aiding and            abetting remained outside of the bank.  Moreover, in Spinney,                                                                 _______            the  use  of the  gun was  not  contemplated at  the planning            stages, while here the jury could infer that it was.                                         -10-                                         -10-            to a "practical  certainty" that the gun would be  used.  See                                                                      ___            United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995).            _____________    _______            Reasonable Doubt Instruction            ____________________________                      Although he did not  object to the reasonable doubt            instruction  at   trial,  Sullivan  attempts  to  attack  the            instruction  on  appeal.   As  a  result,  he  must meet  the            strictures  of  plain error  review.   See  Fed. R.  Crim. P.                                                   ___            52(b); Luciano-Mosquera, 63 F.3d at  1156.  In this  instance                   ________________            the  standard of  review does  not alter the  outcome because            there was no error in the instruction.                      The judge instructed the jury as follows:                           Now, as I have indicated to you, the                      government has the burden of  proving the                      defendants  guilty  beyond  a  reasonable                      doubt.   Some of  you may have  served as                      jurors in  civil cases and when  you were                      told that it  is only necessary  to prove                      that a fact is  more likely true than not                      true, in a civil case, that's the burden.                      In criminal cases, the government's proof                      is subject to a higher standard.  It must                      be beyond a reasonable doubt.                           Now,     there's     been    several                      suggestions made to you during the course                      of  argument  with  regard to  reasonable                      doubt.  And I  point out to you  that the                      lawyers  have  the   right,  indeed   the                      responsibility, to point out to you those                      facts   or   that   evidence   or   those                      interpretations of  legal principles that                      is more persuasive  to their side  of the                      case.  I instruct you that, if what I  am                      telling you  about the law differs in any                      way  with what the  lawyers have told you                      about  the  law, I'm  instructing  you to                      follow the  law as I  give it to  you and                      not as the lawyers suggest[] it may be if                      there is a difference.                                         -11-                                         -11-                           "Reasonable  doubt"   has  now  been                      defined for you in several different ways                      by  counsel,  and  I  instruct  you  that                      reasonable  doubt  defines  itself  --  a                      doubt that is reasonable.  It has a plain                      meaning,  and you as  jurors can consider                      the  plain  meaning  of reasonable  doubt                      with what the words say.                           The only  caveat  that you  must  be                      clear about as  it relates to  reasonable                      doubt is  that the government  must prove                      the guilt  of each of  the defendants for                      the crimes involved  beyond a  reasonable                      doubt as you interpret that term.            The  judge  thus  left the  fine  tuning  of  the meaning  of            "reasonable doubt" to the jurors, as is appropriate under our            precedent.   See United States v. Cassiere, 4 F.3d 1006, 1024                         ___ _____________    ________            (1st Cir. 1993).                        Sullivan says that by referring to  the definitions            given   by   counsel,   the  judge   incorporated   erroneous            definitions.  The argument suffers from  three flaws.  First,            that is not a fair reading of the instruction, which told the            jurors  what  the judge's  instructions  were.   Second,  the                              _______            reference to counsel's  definitions was followed  immediately            by  a statement that the judge's instructions on the law were            to  be followed,  and,  if there  were  differences, not  the            lawyers'.   Third,  to  the extent  that Sullivan's  argument            rests on the premise  that his own counsel gave  an erroneous            definition of reasonable doubt, we will not entertain such an            argument.  Cf.  United States  v. Munson, 819  F.2d 337,  342                       ___  _____________     ______            (1st  Cir.  1987)  (no   plain  error  in  admitting  certain                                         -12-                                         -12-            testimony  when,  among  other  problems, the  testimony  was            elicited by defense counsel on cross-examination).            Ineffective Assistance and Due Process Claims            _____________________________________________                      Sullivan combines three arguments, tied together by            the common theme  that his counsel at  trial was ineffective.            For several  reasons, ineffective  assistance claims  are not            usually heard on direct  appeal.  See United States  v. Diaz-                                              ___ _____________     _____            Martinez,  71 F.3d 946, 953 (1st Cir. 1995); United States v.            ________                                     _____________            Collins,  60 F.3d  4, 7  n.1 (1st  Cir. 1995).   There  is no            _______            reason here to depart from that rule.                        To the  extent he  makes claims independent  of the            ineffective assistance  of counsel claim, they  fail on their            own.   Sullivan  complains  that,  despite Platt's  objection            which resulted in excluding the evidence, the evidence should            have been admitted that Platt and Braley committed  a robbery            of the Econolodge  the week  before the robbery  of the  Inn.            Sullivan  urges that the  evidence would have  been useful to            impeach  Braley.    Failing  that,  he  says,  severance  was            warranted.                        His  initial  hurdle is  that  he  never sought  to            cross-examine  Braley about  the  Econolodge  matter, and  he            objected  to  the   government's  request  to  present   such            evidence.   Moreover,  he never  asked for  a severance.   At            best,  review of  his contentions is  for plain error.   In a            strange  twist, the  parties now  reverse the  positions they                                         -13-                                         -13-            held  in  the  trial court  with  the  government saying  the            evidence was  cumulative and  Sullivan saying it  should have            been  admitted.   Switching  of position  aside,  this was  a            matter  of discretion  for the trial  judge and  the decision            hardly requires reversal  as plain error.   See United States                                                        ___ _____________            v. Innamorati,  996 F.2d 456,  478 (1st Cir.),  cert. denied,               __________                                   _____ ______            114  S. Ct.  409 (1993).   The same  is true  for the alleged            error  in failing to sever the trials.   Cf. United States v.                                                     ___ _____________            Edgar,  No. 95-1190, slip  op. at 8 (1st  Cir. Apr. 19, 1996)            _____            (failure to  sever reviewed for abuse  of discretion); United                                                                   ______            States  v.  Nason, 9  F.3d 155,  158  (1st Cir.  1993), cert.            ______      _____                                       _____            denied,  114 S.  Ct. 1331  (1994) (same).   There  was strong            ______            evidence of guilt  in this case.   Sullivan's convictions  do            not rise to  a "miscarriage of justice."  See  Edgar, No. 95-                                                      ___  _____            1190, slip op. at 27 n.16.                      Sullivan's  second argument of  trial error is also            raised by Platt.  Through  a series of questions,  reproduced            in   the  margin,2  the  prosecutor  asked  Sullivan  whether                                            ____________________            2.  Q:    So, I take it  you would deny that you  ever stated                      to Vaughn Stevenson that you wished you didn't have                      so many people involved in the robbery?            A:        You take it I deny that?            Q:        Yes.            A:        I certainly do, yes.            Q:        I take it that, when Vaughn testified to that,  you                      would say he was lying?            A:        I'd say --            [Defense counsel]:  Objection, your Honor.            . . . .            The  Court:   Objection's overruled.   He  can answer.   It's            cross-                                         -14-                                         -14-            another witness, Vaughn  Stevenson, had  lied when  Stevenson            said that Sullivan  complained that he wished he  didn't have            so many people involved in the robbery.  This court stated in            United  States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991),            ______________    _______            that this  type of  questioning was  improper.   Other courts            have said the same.  See  United States v. Boyd, 54 F.3d 868,                                 ___  _____________    ____            871  (D.C. Cir. 1995); United States v. Scanio, 900 F.2d 485,                                   _____________    ______            492-93 (2d Cir. 1990), overruled on other grounds, Ratzlaf v.                                   __________________________  _______            United  States,  510  U.S. 135  (1994).    If  there was  any            ______________            ambiguity  left   after  Akitoye,  we  state   the  rule  now                                     _______            emphatically:   counsel should not ask one witness to comment            on the veracity of the testimony of another witness.   As was            explained in Akitoye:                         _______                      It  is not  the place  of one  witness to                      draw    conclusions   about,    or   cast                      aspersions    upon    another    witness'                      veracity.    The  "was-the-witness-lying"                      question framed by the prosecutor in this                      case was of that stripe.  It should never                      have been posed . . . .                                            ____________________                      examination.            A:        Could I have the question again?            Q:        Vaughn Stevenson testified that you told him, while                      you  were  riding  in  his car  shortly  after  the                      robbery,  that you  told  him that  you wished  you                      hadn't had so many people involved in the robbery.            A:        Uh-huh.  And you  want my opinion as to  whether he                      lied?            Q:        And you're saying --  I take it you would  say that                      that  was a lie, that you  never said anything like                      that.            A:        You take that correctly, yes.                                         -15-                                         -15-            923  F.2d at  224 (citations  omitted).   We expect  that the            office  of the United States Attorney3 and other counsel will            abide by the rule.                      The prosecution  next  misreads  a  line  of  cases            primarily from the Second Circuit and suggests that this non-            comment  rule applies  differently depending  on whether  the            other witness is a police officer or a lay witness.   Compare                                                                  _______            Boyd,  54 F.3d at 871 ("It is . . . error for a prosecutor to            ____            induce a  witness to  testify that  another  witness, and  in            particular a government agent,  has lied on the  stand.") and                                                                      ___            United  States v. Richter, 826  F.2d 206, 208  (2d Cir. 1987)            ______________    _______            ("Prosecutorial cross-examination which  compels a  defendant            to  state  that  law   enforcement  officers  lied  in  their            testimony is improper.") with United States v. Gaind, 31 F.3d                                     ____ _____________    _____            73, 77 (2d Cir. 1994) ("[T]he opposing witnesses in this case            were   former  [employees   of  defendant's   business],  not            government agents.") and Scanio, 900 F.2d at  493 ("While the                                 ___ ______            rule barring this type of cross-examination is not limited to            situations where the  defendant is  asked to  comment on  the            testimony of government agents,  . . . we have  shown special            concern with prosecutors utilizing what some persons perceive            as the  heightened credibility of government  agents . . . ."                                            ____________________            3.  Appellate counsel for the United States assured the court            at oral argument that  attorneys in the Office of  the United            States Attorney  in Maine  would promptly be  instructed that            such questions are improper.                                         -16-                                         -16-            (internal citations  omitted)).   The rule only  applies, the            prosecution says, when the other witness is a police witness,            not a lay witness.  We make no such distinction, nor does the            Second Circuit.4   That erroneous reading  misunderstands the            purpose of the rule.  The rule reserves to the jury questions            of credibility and thus makes it improper to induce a witness            to say another witness lied on the stand.  See  Boyd, 54 F.3d                                                       ___  ____            at 871.                      That this  rule was violated by  the prosecution is            not the  end of the  analysis.  The  question is whether  the            violation of the rule was harmless.  In context, it certainly            was.   While  evidence  of guilt  is  only one  factor to  be            considered,  such evidence  was very  strong.   See generally                                                            ___ _________            Harry T. Edwards, To  Err Is Human, But Not  Always Harmless:                              ___________________________________________            When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167            _____________________________________            (1995).   Two  witnesses  testified that  Platt and  Sullivan            committed  the robbery and  four witnesses tied  Platt to the            shotgun.  Moreover, the error was on a minor point:   whether            Sullivan in his testimony would say another witness was lying                                            ____________________            4.  The distinction the Second Circuit draws is in evaluating            whether  the error  is harmless  once the  rule is  violated.            Whether  a witness is a  government agent may  be relevant in            determining whether  there is  prejudice or a  miscarriage of            justice.   See  Gaind,  31  F.3d  at  77  (in  reviewing  for                       ___  _____            "miscarriage of justice," court  believed that questions  did            not alter the outcome of the trial); Scanio,  900 F.2d at 493                                                 ______            ("[T]he government's attempt to compel [defendant] to comment            on [witness's] veracity was improper; however, we believe any            error was harmless.").                                         -17-                                         -17-            when the witness said Sullivan had  complained about too many            people  being involved  in the  robbery.   The  other witness            testified to Sullivan's complaint; Sullivan denied making it.            The damage to Sullivan's defense came from Stevenson's direct            testimony.    That there  was  a  contradiction between  that            testimony  and  Sullivan's was  obvious.    Pointing out  the            obvious  most   likely  scored   the  government,   at  most,            rhetorical points.    We cannot  say that  these few  largely            rhetorical questions from the  prosecutor affected at all the            outcome of the trial.   Cf. United States v.  Wihbey, 75 F.3d                                    ___ _____________     ______            761, 771  (1st  Cir.  1996)  (improper  conduct  on  part  of            prosecutor not  implicating a  constitutional right does  not            require  reversal  unless  it  affected the  outcome  of  the            trial).                      Sullivan also argues that some of the comments made            by  the prosecution  in  its closing  argument were  improper            vouching  for  the credibility  of  certain  witnesses.   The            prosecutor argued:                           The  government would  suggest that,                      again,  Tim Boudreau,  if you  assess his                      believability  on  the witness  stand, he                      came off pretty believable.  But you have                      to   make   that  judgment,   ladies  and                      gentlemen.                           . . .   The  government suggests  to                      you  [Cray]  couldn't  have   lied  about                      anything up  on  the witness  stand.   He                      couldn't -- if he  was lying, he couldn't                      even remember his own name.            And on rebuttal, the prosecutor argued:                                         -18-                                         -18-                      The government suggests  . . . that  they                      were up there telling the truth.                      . . . .                           .   .  .   [Braley]  told   you  the                      truth. . . .                      . . . .                           . . .  The government suggests  that                      . .  . Braley, . . . Stevenson, and . . .                      Boudreau .  . . are telling  the truth in                      this case.            As there  was no objection,  we review for plain  error.  See                                                                      ___            United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).            _____________    ___________                      While  some  of the  statements  may  have been  an            appropriate  response  to  the   defendants'  attack  on  the            government witnesses'  credibility, see id., others  may have                                                ___ ___            crossed the line into improper vouching.  See Wihbey, 75 F.3d                                                      ___ ______            at  771-73 (comment that  "what they  have done  is testified            . . .  truthfully   about  what  they   knew"  was   improper            vouching); United States  v. Manning, 23  F.3d 570, 572  (1st                       _____________     _______            Cir.  1994) (improper  witness  vouching  for  prosecutor  to            argue:  "If  [police witness] is going to come  in and lie to            you he  could have done  that very, very  easily.   There's a            million  little  ways  they  could   have  given  it  to  the            Defendant.    But they  cannot.    The prosecution  witnesses            cannot engage in that kind of conduct.  They're bound  by the            truth. . .  .   They're  bound by  their  oath and  limits of            honesty.").  Nevertheless, no miscarriage of justice resulted            and the comments  did not impact  the fairness, integrity  or            public reputation  of the judicial proceedings  and so should            not be noticed as plain error.  See Collins, 60 F.3d at 7.                                            ___ _______                                         -19-                                         -19-                                         III                                        Platt                                        _____            Prosecutor's Opening Statements            _______________________________                      Platt  argues  that the  prosecutor's  statement in            opening  that the jury would "meet" the two defendants was an            improper  comment on  whether the  defendants would  testify.            Sullivan  objected to  the  comment and  at  the end  of  the            opening, Platt  moved  for a  mistrial.   The district  court            denied  the   motion,  but  offered  to   give  a  cautionary            instruction.      Apparently  for   strategic   reasons,  the            defendants rejected the offer.                        Whether  the  prosecutor's  argument  violated  the            Fifth  Amendment  privilege  against   self-incrimination  is            reviewed de novo.   United States v. Hardy, 37  F.3d 753, 756                     _______    _____________    _____            (1st  Cir. 1994).   We review  the denial  of the  motion for            mistrial for abuse  of discretion.   See Wihbey,  75 F.3d  at                                                 ___ ______            773.  There was no violation of the Fifth Amendment here.                        "A  prosecutor's comment  is improper  where, under            the  circumstances  of  the   case,  the  language  used  was            manifestly  intended or was  of such character  that the jury            would  naturally and necessarily take  it to be  a comment on            the failure  of the accused to  testify."  Hardy, 37  F.3d at                                                       _____            757 (internal quotations omitted).  Sullivan's counsel agreed            that  the choice of words was not deliberate:  the prosecutor            meant to say that  the defendants would be introduced  to the                                         -20-                                         -20-            jury.  And in fact, the defendants' lawyers did introduce the            defendants  to  the  jury   after  the  prosecutor  made  the            allegedly  offending remark.    In context,  the prosecutor's            word choice  did not  "naturally and necessarily"  comment on            the  defendants' privilege  against self-incrimination.   Cf.                                                                      ___            Hardy, 37 F.3d at 757-58 (holding that prosecutor's statement            _____            that defendants, who  were sitting in  the courtroom but  did            not testify,  were "still running and  hiding today" violated            the Fifth  Amendment (emphasis removed)).  Thus, there was no            prosecutorial  misconduct  that  would   warrant  considering            mistrial.            Sufficiency of the Evidence            ___________________________                      Platt  also makes  a  claim that  the evidence  was            insufficient to  support his  conviction.  Platt  argues that            the evidence implicating him  as one of the two  robbers came            principally  from  Braley and  Boudreau.    Those two,  Platt            argues,  should  not have  been  believed  because they  were            cooperating witnesses who  gave inconsistent versions  of the            events  that   transpired  on   July  28,  1994.     However,            "'[c]redibility determinations are uniquely within the jury's            province,  and we defer to the jury's verdict if the evidence            can support varying inferences.'"  United States v. Calderon,                                               _____________    ________            77 F.3d 6, 10  (1st Cir. 1996) (quoting Cruz-Kuilan,  75 F.3d                                                    ___________            at 62).   As the recital of the facts  shows, there was ample            evidence to convict Platt on all counts.                                         -21-                                         -21-            Other Evidentiary Issues            ________________________                      Platt  argues  that  the  district  court erred  in            excluding the  prior misdemeanor and  juvenile convictions of            certain  government  witnesses and  that  the district  court            abused  its  discretion  by  allowing   cross-examination  of            Sullivan  on a prior robbery conviction.   We have considered            Platt's arguments and find no abuse of discretion.5                      Finally,  Platt argues that  evidence that Boudreau            had  no  prior  criminal  convictions should  not  have  been            admitted.  Platt  argues that  the evidence  was admitted  in            violation  of  Fed. R.  Evid.  608  to  show Boudreau's  good            character.   Cf. Government of  Virgin Islands v.  Grant, 775                         ___ _____________________________     _____            F.2d 508,  510-12 (3d Cir. 1985)  (such evidence inadmissible            under Rules 404 and 405 to  prove character of accused).  The            record  shows  that  it   was  admitted  to  further  develop            Boudreau's background  and it was thus  within the discretion            of the district court.   Cf. United States v.  Blackwell, 853                                     ___ _____________     _________                                            ____________________            5.  Platt  seeks  a  stricter  standard  of  review  for  the            district  court's  exclusion  of  one  witness's  misdemeanor            conviction for theft by arguing that it "involved dishonesty"            and thus  should  have  been  admitted under  Fed.  R.  Evid.            609(a).   See United States v.  Tracy, 36 F.3d 187,  192 (1st                      ___ _____________     _____            Cir.  1994)  (district  court  does not  have  discretion  to            exclude   prior   convictions   involving    dishonesty   for            impeachment  purposes),  cert.  denied, 115  S.  Ct.  (1995).                                     _____  ______            Theft, on  particular facts, could conceivably be  a crime of            dishonesty,   if   it  involves   some  element   of  deceit,            untruthfulness, or falsification.   See id.; United States v.                                                ___ ___  _____________            Mejia-Alarcon,  995  F.2d 982,  989  n.7  (10th Cir.),  cert.            _____________                                           _____            denied, 114  S. Ct. 334 (1993).   But Platt points to nothing            ______            in  the record to support  his assertion that  the theft here            was a crime of dishonesty.                                         -22-                                         -22-            F.2d  86,  88  (2d Cir.  1988)  (error  to strike  background            evidence  that defendant  had no  prior arrests);  Grant, 775                                                               _____            F.2d  at 513 (trial court has wide discretion as to admission            of background evidence).   There was  no abuse of  discretion            here.                      Affirmed.                      _________                                         -23-                                         -23-
