
USCA1 Opinion

	




          July 1, 1993                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2069                                    UNITED STATES,                                 Plaintiff-Appellant,                                          v.                                   PAUL J. KIRVAN,                                 Defendant-Appellee.                                 ____________________        No. 92-2289                                    UNITED STATES,                                      Appellee,                                          v.                                   PAUL J. KIRVAN,                                 Defendant-Appellant.                                 ____________________                                     ERRATA SHEET        The  opinion of  this court  issued  on June  29, 1993  is amended  as        follows:            On page  3, line 7, "erred  in a granting"  should read "erred  in        granting".            On  page 3, line  20, "the  money in into a  bag" should read "the        money into a bag".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2069                                    UNITED STATES,                                 Plaintiff-Appellant,                                          v.                                   PAUL J. KIRVAN,                                 Defendant-Appellee.                                 ____________________        No. 92-2289                                    UNITED STATES,                                      Appellee,                                          v.                                   PAUL J. KIRVAN,                                 Defendant-Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                            Cyr and Boudin, Circuit Judges,                                            ______________                          and Burns,* Senior District Judge.                                      _____________________                                 ____________________            Richard Abbott for Paul J. Kirvan.            ______________            Timothy Q. Feeley,  Assistant United States Attorney, with whom A.            _________________                                               _        John Pappalardo, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                    June 29, 1993                                 ____________________        ____________________        * Of the District of Oregon, sitting by designation.                 BOUDIN, Circuit Judge.  Paul Kirvan  appeals from a jury                         _____________            verdict finding  him  guilty  on  one  count  of  armed  bank            robbery, in violation of 18 U.S.C.    2113(d).  The jury also            convicted Kirvan of carrying  a firearm during the commission            of a crime of violence, in  violation of 18 U.S.C.    924(c),            but  the district court set that conviction aside.  On cross-            appeal,  the government argues that  the trial judge erred in            granting  a judgment of acquittal  on this second  count.  We            affirm the  bank  robbery conviction,  reinstate the  firearm            conviction and remand for resentencing.                  The facts, limited  to those pertinent to the  issues on            appeal, can be briefly stated.  A lone masked  robber held up            a savings  bank in  Lowell,  Massachusetts, at  3:25 p.m.  on            August 20,  1991.   The surveillance  photographs taken  by a            bank camera showed the robber wearing a distinctive  rain hat            and holding what  appeared to  be a large  handgun.   Several            persons  in the bank saw the same robber and the gun.  At one            point the  gun fell  to the  floor with a  loud thump  as the            robber climbed over  a counter.   The  robber collected  cash            from several drawers, stuffed  the money into a bag  and fled            from the bank with the cash and his gun.                 At about  3 p.m.,  before  the robbery,  an FBI  special                                    ______            agent  named Gerald  Mohan happened  to be  driving out  of a            parking  lot not far from  the bank.   For plausible reasons,            unrelated  to  the bank  robbery,  Mohan began  to  follow an                                         -4-                                         -4-            Oldsmobile that turned out to be registered to Kirvan.  Soon,            the  Oldsmobile stopped, and  a passenger wearing  a rain hat            left  the car, transferred to a Chevrolet, and both cars were            driven back toward the bank.  Mohan briefly lost contact with            the  cars and  then located  the Chevrolet  leaving the  bank            parking  lot.  As Mohan's  car passed the  Chevrolet going in            the opposite direction,  he saw  in the driver's  seat a  man            wearing a rain hat.                 Mohan  later selected Kirvan's  photograph from an array            as the man whom  Mohan had seen in the  Chevrolet leaving the            bank.  Through  other witnesses, there was evidence  that the            driver and another man had abandoned the Chevrolet (which was            stolen)  around 3:30  p.m. and switched  to another  car; one            young witness to the switch of cars testified that one of the            individuals who left the  Chevrolet looked "Portuguese."  The            police later discovered a bag and a police-band radio scanner            in Kirvan's Oldsmobile.                 On  October  3,  1991, the  grand  jury  handed  down an            indictment charging Kirvan with  armed bank robbery and using            or  carrying a firearm  during a crime of  violence.  After a            six-day  trial, the  jury  returned guilty  verdicts on  both            counts.  Pursuant  to Fed. R. Crim. P. 29(c),  Kirvan filed a            motion for judgment  of acquittal.  The  district court judge            denied the  motion as to the bank robbery count but granted a            judgment of acquittal on  the firearms count.  On  the latter                                         -5-                                         -5-            count,  the trial  judge  ruled that  there was  insufficient            evidence  for a jury to  conclude that a  genuine firearm was            carried during the robbery.                 Kirvan's first  argument on  appeal is that  a statement            made by  the prosecutor during  summation was improper.   The            statement concerned Mohan's ability to identify the driver of            the oncoming Chevrolet where the distance between Mohan's car            and the other car was approximately 3 to 4 feet and both cars            were  travelling in  opposite  directions between  30 and  35            miles  per hour.  The  prosecutor said to  the jury, "I'm not            going to talk in terms of feet or seconds or milliseconds.  I            want you to put yourselves in the place that [Mohan] was in."            As defense counsel  did not object  to this statement  during            trial, the question is whether allowing it to stand was plain            error.  United States v. Mateos-Sanchez, 864 F.2d 232, 240-41                    _____________    ______________            (1st Cir. 1988).                 Kirvan's brief relies primarily on cases that forbid so-            called   "golden  rule"  arguments  in  which  plaintiffs  or            prosecutors ask the jury  to put itself in  the place of  the            victim.   E.g., Forrestal  v. Magendantz, 848  F.2d 303,  309                      ____  _________     __________            (1st Cir. 1988).  But "golden rule" cases do not apply where,            as here,  the jury is asked to put itself  in the place of an            eyewitness.   In  this situation,  the invitation  is not  an            __________            improper  appeal to the jury to base its decision on sympathy            for  the victim  but rather  a means  of asking  the jury  to                                         -6-                                         -6-            reconstruct  the  situation  in  order to  decide  whether  a            witness' testimony is plausible.                 Kirvan  also  asserts  that  the  prosecutor  engaged in            impermissible vouching  for the credibility of  Mohan.  Mohan            had  been  attacked  vigorously  on   cross-examination  with            questions designed to suggest  that his reasons for following            the Oldsmobile were fictitious,  that he had not had  time to            see Kirvan's  face,  and that  in  other respects  he  lacked            credibility.  In summation, the prosecutor spoke favorably of            Mohan, saying to the jury:                      "  . . . It tells you something about his                      professional  instincts; they  turned out                      to be right.   Tells you something  about                      his  sense  of duty.    It  tells you  he                      cared, that  he gave a damn,  that he got                      himself involved.                      He  didn't wait or let someone else worry                      about  it.   You  saw  him  on the  stand                      cross-examined  for how many  hours.  You                      saw   the  attempt  to  condemn  him,  to                      criticize  him,  to  embarrass   him,  to                      humiliate him, to imply  incompetency, to                      imply deceit.                         I  suggest  to  you  that  Gerry Mohan                      should  not  be condemned;  he  should be                      commended.      That   he  shouldn't   be                      criticized; he should be applauded.   And                      he    shouldn't    be   embarrassed    or                      humiliated.  He should  be proud, and you                      should be proud of him."                  This argument does not constitute improper vouching; the            prosecutor did not assert his own opinion of Mohan's veracity            as a witness.  If any criticism could be made, it is that the            "let  someone else  worry" and  "commended .  . .  applauded"                                         -7-                                         -7-            commentary by the  prosecutor is inappropriate  cheerleading;            but this is  hardly plain  error, and, given  the assault  on            Mohan's  integrity, the remarks may be fair comment.1  As for            the   prosecutor's  argument   that  events   proved  Mohan's            instincts  to be  sound, it  may well  be false logic  from a            philosopher's standpoint but it is perfectly good folk wisdom            and is neither an appeal to emotion nor personal vouching.                 Finally, Kirvan argues  that the  prosecutor engaged  in            impermissible  conduct in recounting  testimony.   As already            noted, a young witness,  actually one called by  the defense,            described  the   driver  of   the   Chevrolet  as   appearing            "Portuguese."  During closing  argument, the prosecutor  told            the jury:                      "[The witness] also said that the man, to                      him,   looked   like  his   ancestry  was                      Portuguese.   I ask  you to look  at Paul                      Kirvan.    Imagine  him with  his  hair a                      little  longer like it  is in the photos.                      Imagine him  with his skin a  little more                      tanned like it is in this photo.  Imagine                      him with a mustache, and imagine him with                      a beard  that you can see  from your jury                      box.  Imagine him with  a growth of a day                      or so of beard and ask yourselves whether                      [the witness'] characterization--although                      it   may   not   have  been   technically                      accurate, ask yourselves  whether it  was                      descriptively accurate."                                            ____________________                 1In his  summation, defense counsel called  Mohan a liar            and deceptive, stupid or both.  While these  remarks followed            the  prosecutor's,   they  reflect  the   thrust  of  defense            counsel's earlier cross-examination of Mohan.                                         -8-                                         -8-            No objection to these comments was made at trial.  On appeal,            Kirvan does not claim that allowing the witness' response was            error.  However, Kirvan contends that prosecutor's  statement            (quoted above)  during closing  argument  either invited  the            jury to speculate  about identity based on  a vague criterion            or was racially inflammatory and deprived the defendant  of a            fair trial in violation of the United States Constitution.                 There   may   be  some   force   to   the  notion   that            "look[ing] . . . Portuguese"  is not much of  a criterion for            identification, although the description came from a  defense            witness.    But  defense  counsel had  ample  opportunity  in            closing argument to point out this weakness to the jury.  The            defense brief on appeal imaginatively refers us to cases that            preclude  a   jury  from  viewing  an   infant  to  determine            paternity; but that rule is not followed everywhere and rests            in part on considerations  of policy.  In any  event, counsel            did not object to  the prosecutor's statement at the  time it            was made, and the statement is not so vague or misleading  as            to constitute plain error.                 The claim that the  statement was a racial slur  is more            serious in that  the "[r]acial  fairness of the  trial is  an            indispensable ingredient of due process and racial equality a            hallmark of justice."  United States v. Doe, 903  F.2d 16, 25                                   _____________    ___            (D.C. Cir.  1990).   However, the prosecutor's  statement was            not  in  fact  a  racially  inflammatory  remark;  it  was  a                                         -9-                                         -9-            permissible, "unembellished reference to evidence of race [or            ethnicity]  simply  as  a  factor  bolstering  an  eyewitness            identification of a  culprit."   Id.  Indeed,  we think  that                                             __            this charge against the prosecutor should not even have  been            made.                 The  government's  cross-appeal   presents  a  far  more            difficult  question.  Following the  jury verdict of guilt on            the  second  count  (carrying  a firearm  during  a  crime of            violence), the court granted  a judgment of acquittal finding            "no evidence that  the defendant actually  carried a firearm,            as opposed to a toy gun."  On appeal, we examine the evidence            in the light most favorable to the government.  If a rational            trier  of  fact could  have  concluded  that every  essential            element of the  crime charged was proved  beyond a reasonable            doubt,  then the  issue should  have been  left to  the jury.            United States  v. Medina-Garcia,  918 F.2d  4, 6-7 (1st  Cir.            _____________     _____________            1990).                 The  firearm statute,  18 U.S.C.    924(c),  provides in            relevant  part  that whoever  carries  a  firearm during  the            commission  of a crime of  violence shall be  sentenced to an            additional five years' imprisonment (or more if the weapon is            of  a type here not involved).   It is common ground that the            gun need not be proved  to be loaded or operable in  order to            convict, United  States v. Gonzalez,  800 F.2d 895,  899 (9th                     ______________    ________            Cir. 1986),  but that a toy  or replica will not  do.  United                                                                   ______                                         -10-                                         -10-            States v. Westerdahl,  945 F.2d 1083,  1088 (9th Cir.  1991).            ______    __________            The district  court  summed  up  the  evidence  and  held  it            inadequate  to permit  a reasonable  jury to  find, beyond  a            reasonable doubt,  that Kirvan carried a real  gun as opposed            to a toy.                 The government's riposte is to point to a square holding            by  then Circuit Judge Scalia in Parker v. United States, 801                                             ______    _____________            F.2d 1382, 1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070                                              ____________            (1987), that  non-expert  testimony affirming  that a  robber            used  a gun is enough.  The holding was followed without much            discussion by  the  Fourth  Circuit  in  a  case  where  five            witnesses had described the  object as a gun.   United States                                                            _____________            v. Jones,  907 F.2d 456 (4th Cir. 1990), cert. denied, 111 S.               _____                                 ____________            Ct. 683  (1991).  Kirvan in turn points us to cases which, in            upholding  convictions   under  this  or   similar  statutes,            recounted or relied  upon testimony from a firearms expert or            at least a  witness who saw the  robbery and claimed to  know            about weapons.  E.g.,  United States v. Buggs, 904  F.2d 1070                            ____   _____________    _____            (7th Cir. 1990); Westerdahl, 945 F.2d at 1088.                             __________                 If  fake   guns  were   extraordinarily  rare   in  bank            robberies, it might be fairly easy, absent affirmative proof,            to dismiss the possibility that the gun was a toy.   The jury            had  no  actual data,  which  might  be inadmissible  in  any                                         -11-                                         -11-            event,2  although  it  does  have  considerable  latitude  in            making intuitive judgments about how the world works.  United                                                                   ______            States v.  Guerrero-Guerrero, 776  F.2d 1071, 1075  (1st Cir.            ______     _________________            1985), cert. denied, 475  U.S. 1029 (1986).  Nor  does policy                   ____________            tilt the  balance, as it might if we faced an issue where the            government had ready access to direct evidence (e.g., whether                                                            ____            a  bank is federally insured)  and no excuse  for leaving the            matter in doubt.   Of course, Kirvan has  such access but  we            will not decide  the matter  by relying upon  his failure  to            produce the gun for inspection.3                   We need not decide  here whether the government's burden            could be met merely by  unembellished lay testimony that "the            robber  carried a  gun."   In this  instance, the  object was            identified by  two witnesses as a  gun; one said that  it was            black and  had a  five  inch barrel  and the  other, who  was            closer,  supplied  more detail:    he said  that  it appeared            "shiny,  silver" in color;  that it was  "[l]arge, very large                                            ____________________                 2See 1  McCormack, Evidence    210,  at 949-50  (4th ed.                  ___               ________            1992)  (cases discourage  mathematical proof  and probability            data  in  criminal  cases).   Such  data  may  exist.   E.g.,                                                                    ____            Washington  Post, October 2, 1986, p. C1 ("Neil Hurley, chief            ________________            of the grand jury  section of D.C. Superior Court,  said that            at  least 10 percent of the  armed robbery cases that he sees            involve fake guns.").                 3The  problem with  an  adverse inference  is the  Fifth            Amendment's  bar against  compelled self-incrimination.   See                                                                      ___            Griffin v. California, 380  U.S. 609 (1965).  But  cf. Barnes            _______    __________                         _______  ______            v.  United   States,  412  U.S.  837   (1973)  (upholding  an                _______________            instruction  that unexplained  possession of  stolen property            permits an inference of knowledge).                                         -12-                                         -12-            for  a handgun"; and that when it  fell to the floor, it made            "[a] very loud noise.  Heavy object hitting the floor."                 Without deciding  whether less  would do, we  think that            this detail  permitted a rational jury to  conclude that this            was a  "real" gun:  it  was a plausible size,  colored like a            real gun, and quite heavy.  One witness could easily describe            gun metal as black and another as silver.  Although some  toy            guns might be  of similar  size and color,  the heavy  weight            certainly would not be as common in a toy.  And while  a good            replica might still fool a witness at a distance, the chances            of error decline  where, as  here, the witness  saw the  gun,            stationary  and at  a  close distance,  for  a least  half  a            minute.4                 In sum, we think that the jury, which concluded that the            object was  a real gun "beyond a reasonable doubt," cannot be            deemed irrational.  We understand why the trial judge came to            the opposite view.  But judgments of acquittal are subject to            de novo review,  United States v. Reed, 977  F.2d 14, 18 (1st            __ ____          _____________    ____            Cir.  1992), and if deference is owed  to anyone it is to the            jury.  In  Judge Prettyman's widely cited formulation,  "if a            reasonable mind might fairly have a reasonable doubt or might            fairly  not have  one,  the case  is for  the  jury, and  the                                            ____________________                 4Kirvan  says that a robber would be unlikely to leave a            real  gun  unattended  on  the  floor  for  30  seconds;  the            government  says that  a  robber would  not  leave a  replica            unconcealed for  any length  of time.   These inferences,  if            they do not precisely cancel out, are not conclusive.                                         -13-                                         -13-            decision  is for  the  jurors to  make."   Curley  v.  United                                                       ______      ______            States,  160 F.2d 229 (D.C. Cir.), cert. denied, 331 U.S. 837            ______                             ____________            (1947).                   For the reasons stated above, the judgment of conviction            on count one is affirmed;  the directed judgment of acquittal                            ________            on count two is set aside  and the jury verdict on that count                            _________            is reinstated; and the case is remanded to the district court               __________                  ________            for resentencing.                                         -14-                                         -14-
