
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 92-1210               93-2050                                    UNITED STATES,                                      Appellee,                                          v.                                   FREDERICK HARDY,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                               Carter,* District Judge.                                        ______________                                _____________________               Owen S. Walker, Federal Defender Office, for appellant.               ______________               Michael J.  Pelgro, Assistant  United States Attorney,  with               __________________          whom  Donald K. Stern, United States Attorney, and Ralph F. Boyd,                _______________                              ______________          Jr.,  Assistant  United  States   Attorney,  were  on  brief  for          ___          appellee.                                 ____________________                                   October 12, 1994                                 ____________________                                        ____________________          *  Of the District of Maine, sitting by designation.                    TORRUELLA,  Circuit Judge.    A grand  jury returned  a                                _____________          five- count  indictment alleging various firearm  related charges          against defendant/appellant Frederick  Hardy and his co-defendant          Raymond Moreno, Jr.   A trial  was held and  the jury found  both          defendants  guilty   on  all  counts.     Moreno  challenged  his          conviction  in a separate appeal.   United States  v. Moreno, 991                                              _____________     ______          F.2d 943  (1st Cir.)  (Torruella, J., dissenting),  cert. denied,                                                              ____________          114  S. Ct. 457  (1993).  In  this appeal, Hardy  claims that the          government  made   several  impermissible  arguments   at  trial,          including  improperly  commenting  in  its   closing  on  Hardy's          decision   not  to  testify  at  trial.    We  believe  that  the          government's  comment on  Hardy's silence  at trial  violated the          Fifth Amendment, and that this error, coupled with other improper          arguments, deprived Hardy of  a fair trial.  We  therefore vacate          Hardy's convictions and order a new trial.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    A.  Facts                    A.  Facts                    We are concerned here not  with a claim of insufficient          evidence, but  with a case in  which we find that  the government          improperly commented  on Hardy's  right not  to testify  and made          other  inappropriate  remarks during  the  course  of the  trial.          Accordingly,  our description of the facts is not limited in this          case to evidence and inferences most favorable to the government,          but rather it is  designed to provide a  balanced picture of  the          evidence appropriate  for  determining whether  the comments  and          remarks were harmless or prejudicial.  Arrieta-Agressot v. United                                                 ________________    ______                                         -2-          States, 3 F.3d 525, 528 (1st Cir. 1993).1            ______                    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, 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 a parked cruiser.                    As Officers  Garvey, Perkins,  and Devane  were running          down Hammond Street, they observed three black males 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.  The men  then 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 three men running through a parking lot behind the          cluster of buildings, and gave chase.                      The officers 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                                        ____________________          1  We have  previously stated the relevant facts in United States                                                              _____________          v. Moreno,  991 F.2d 943 (1st Cir.), cert. denied, 114 S. Ct. 457             ______                            ____________          (1993).  In light of the fact that we do not view the evidence in          the light most favorable to the  verdicts in this case, as we did          in  Moreno, the two recitations of facts differ in some respects.              ______          Id. at 944-46.          __                                         -3-          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  off through a grass          courtyard.   The  individual who  passed on  the  object, Raymond          Moreno,   Jr.,  immediately   stopped,   raised  his   arms   and          surrendered.                     Another  police officer,  Paul MacIsaac,  aided  in the          pursuit.  Upon  arriving at  the scene, Officer  Murphy, who  had          Moreno  in custody,  directed  Officer MacIsaac  to  head in  the          direction  where the  other man,  to whom  Moreno had  passed the          object, had run.  Officer MacIsaac followed these directions, and          came across two black males at a nearby intersection, standing on          a sidewalk,  looking into  an adjacent  field.  Officer  MacIsaac          questioned  the two men,  conducted a pat-frisk,  and then placed          the two men  in the back of his cruiser.   The officer eventually          took  them to  the station  for questioning  and they  were later          released.                    Officer Garvey testified  that in order to  cut off any          escape route that the  fleeing suspect might use, he  had circled          around  to  the opposite  end of  the  grass courtyard.   Officer          Garvey soon saw a black male, wearing dark clothes, who was later          identified as Frederick Hardy, enter the courtyard.   The Officer          testified  that he  never  saw  Hardy  with  any  weapon  in  his          possession.  After telling  Hardy several times to stop,  Officer          Garvey  testified  that as  Hardy raised  his  arms --  first his          right, then his  left -- over his  head, he heard a  soft thud on                                         -4-          the  ground nearby.   Despite being only  two to three  feet away          from  Hardy, however, Officer Garvey did not see any object leave          Hardy's hands.  Hardy was  then arrested.  Hardy did not  possess          any firearms when  he was  arrested.  After  Officer Garvey  took          Hardy to a police cruiser,  he returned to the area.  A search of          the  area revealed a .32 caliber  pistol about five to eight feet          from where Hardy had stopped.                    The  officers searched  the  path between  the area  of          Moreno's  arrest  and the  spot  at  which Officer  Garvey  first          observed Hardy.   The officers found  a double-barreled sawed-off          shotgun  with a 12 1/2 inch barrel, fully loaded with ammunition,          hidden in bushes along that route.                      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, Steven Fern ndes, sweating and  out of breath, hiding          in some bushes.  After arresting Fern ndes and placing him in the          cruiser,  Officer Devane  found  a semi-automatic  pistol on  the          ground near where Fern ndes had been hiding.                      After receiving  his  Miranda  warning  at  the  police                                          _______          station,  Hardy said  that  he had  been  at the  development  by          himself to  visit his niece and  ran when he heard  shots.  Hardy          denied  knowing  Moreno  or  Fern ndes.    At trial,  however,  a          resident of  the housing development  testified that he  had seen          Hardy together with Moreno and Fern ndes a number of times during          the prior  year.   Additionally,  Officer  Dreary of  the  Boston                                         -5-          Police  Department testified that in March 1991, he had stopped a          red Isuzu Trooper, and that Hardy was the driver and Moreno was a          passenger in the front seat.                    B.  Proceedings Below                    B.  Proceedings Below                    The grand jury returned a five-count indictment against          Hardy and Moreno on June 25,  1991.  Count One charged Hardy with          being a felon-in-possession of a firearm,  and Count Four charged          Hardy  with being  a felon-in-possession  of ammunition,  both of          which were in violation of 18 U.S.C.   922(g).  Count Two charged          Hardy  with possessing  a  firearm, a  short-barreled Stevens  12          gauge,  double  barrel  shotgun,  in violation  of  26  U.S.C.             5861(d).  Counts Three and Five charged Moreno with possession of          the same short-barreled  shotgun and being  a felon-in-possession          of ammunition.                    The  trial took  place over  ten days from  October 28,          1991 to November 14, 1991.   The jury returned guilty verdicts on          all five counts.                    The   court  then  sentenced   Hardy  to   262  months'          incarceration.    Hardy  appealed  both his  conviction  and  his          sentence, and  on November 5,  1992, this Court,  while retaining          jurisdiction,  remanded  the  case  to the  district  court  with          respect  to  some sentencing  issues.   The  district  court then          reaffirmed  Hardy's  sentence, and  Hardy  again  appealed.   See                                                                        ___          United States v.  Hardy, 829 F. Supp. 478 (D.  Mass. 1993).  This          _____________     _____          second appeal was then consolidated with the first appeal.                               II.  STANDARD OF REVIEW                               II.  STANDARD OF REVIEW                                    __________________                                         -6-                    Hardy argues that  the prosecutor improperly  commented          on  his  failure  to testify  at  trial,  and  that this  comment          constituted a violation of  his Fifth Amendment privilege against          self-incrimination, which unduly prejudiced his ability to obtain          a fair  trial.  We will utilize a  de novo standard to review the                                             __ ____          legal question of  whether the prosecutor's  argument constituted          constitutional error.  United States v. Glantz, 810 F.2d 316, 320                                 _____________    ______          n.2  (1st Cir.),  cert. denied,  482 U.S.  929 (1987).   We  will                            ____________          review  the trial court's decision  to deny Hardy's  motion for a          mistrial, based on this  alleged constitutional violation, for an          abuse  of discretion.  Id.   (finding that  district court abused                                 __          its discretion by ordering  a new trial where the  court believed          that the  prosecutor  improperly  commented  on  the  defendant's          failure to  testify  or produce  documents  at trial);  see  also                                                                  ___  ____          United States v. Turner, 892 F.2d 11, 12-13 (1st Cir. 1989).           _____________    ______            III.  THE PROSECUTOR'S COMMENT ON THE DEFENDANTS' SILENCE            III.  THE PROSECUTOR'S COMMENT ON THE DEFENDANTS' SILENCE                  ___________________________________________________             A.  Did the Prosecutor's Comment Violate the Fifth Amendment?             A.  Did the Prosecutor's Comment Violate the Fifth Amendment?                    The  most serious  argument that  Hardy raises  in this          appeal concerns the prosecutor's closing argument at trial.2   In          Griffin  v. California,  380  U.S. 609,  615  (1964), the  United          _______     __________          States  Supreme  Court  held  that the  Fifth  Amendment's  self-          incrimination clause  forbids the prosecution from  commenting on          an  accused's  failure to  take the  stand  and testify  during a          trial.   A  prosecutor's  comment is  improper  where, under  the                                        ____________________          2  Defendant Moreno  did not raise this Fifth  Amendment argument          in his appeal.                                         -7-          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."    Glantz,  810  F.2d  at  322  (citations                                    ______          omitted).  A prosecutor's  comment does not therefore need  to be          direct; rather, a prosecutor may run afoul of the rule in Griffin                                                                    _______          by making such comments  inferentially.  See Glantz, 810  F.2d at                                                   ___ ______          322; see, e.g.,  United States v. Skandier, 758 F.2d  43, 45 (1st               ___  ____   _____________    ________          Cir.  1985)  (prosecutor's  question  during closing  as  to  how          defense counsel would explain certain events which occurred, in a          case  where the defendant had not taken the stand, was improper);          United  States v.  Flannery, 451  F.2d 880,  882 (1st  Cir. 1971)          ______________     ________          (prosecutor's   comment  that  certain  government  evidence  was          uncontradicted,  when  contradiction  would  have   required  the          defendant to take the stand, was improper).                    We believe that here,  the prosecutor improperly called          attention  to the failure of Hardy  to take the stand and testify          at trial.  The prosecutor stated:                      Ladies and gentlemen, the  evidence here,                      the only reasonable  conclusion that  can                      come from this evidence is that Mr. Hardy                      possessed that .32 caliber pistol loaded,                      Mr.   Moreno   possessed  the   sawed-off                      shotgun  loaded,  and  that   during  the                      course of the chase, Mr. Moreno passed it                      off to Mr. Hardy so that he could get rid                      of   it.  What the evidence shows is that                      these  two  defendants  that  night  were                      running and hiding.  They'd been involved                      in  that          incident and  then they                      unfortunately   had  the   misfortune  of                      running  right into  the police  who just                      happened to be in the area, and they were                      running  and  hiding,  running  from  the                                         -8-                      police and hiding  the evidence from  the                      police.  They're still running and hiding                               ________________________________                      today.   The  time has  come for  them to                      _________________________________________                      stop running and  stop hiding.   The time                      _____________________________                      has come for them to  be held accountable                      for the wrongful acts that they committed                      on  the  night  of  April 18th,  1991  in                      Boston.   That time  is now and  only you                      can  hold them  accountable.   Thank you.                      (emphasis added).          Defense counsel objected  and requested  a limiting  instruction.          The  district   court  was  initially  concerned   that  such  an          instruction  might hurt rather than  help, because the jury might          not  have  construed  the  prosecutor's remark  as  a  comment on          defendants' silence.  The court then asked the government:                      Tell me  this:   In what other  sense can                      the    Government    argue   that    [the                      defendants] are running  and hiding  even                      at this time?          The government replied:                      Because, your Honor,  I'm just drawing an                      analogy between their running  and hiding                      on that night and the Government's burden                      of  proving  guilt  beyond  a  reasonable                      doubt.          The court stated:                      I'm   going   to   give    the   limiting                      instruction.  It doesn't satisfy me.          The court then gave the following instruction to the jury:                      Members  of  the  jury,  I   sustain  the                      objection to the argument . . . that even                      today  the  defendants  are  running  and                      hiding.  You will disregard that argument                      and not  consider it  in  any respect  in                      your  consideration  of  the evidence  in                      this case.          The court  then asked defense  counsel if they  requested further          instructions,  and they replied no.   The defendants  moved for a                                         -9-          mistrial, and the court denied these motions.3                    The prosecutor's  comment during his closing  set up an          analogy  between what the defendants were  allegedly doing on the          night  of  the  crime --  running  and  hiding  -- and  what  the          prosecutor believed they were doing  during the trial --  running          and hiding.  Of course, the defendants were not literally running          from  the trial  or hiding during  the trial.   Rather, they were          both in custody and were sitting  silently during each day of the          proceeding.   Neither defendant testified on his own behalf.  The          natural and necessary implication  of the prosecutor's remark was          therefore  that the  defendants  were running  from the  evidence          presented against them, and hiding behind their right  to silence          during the  trial.   The prosecutor's comment  therefore violated          the Fifth Amendment.                      B.  Is a New Trial Required?                    B.  Is a New Trial Required?                    Where  it  appears  that  the prosecutor  has  made  an          improper argument  to the  jury, this Circuit  has established  a          standard to evaluate whether a new trial is required.                        Although  we  have used  slightly varying                      terminology in  describing [the relevant]                      factors, the common denominators  are (1)                      the severity of  the misconduct; (2)  the                      context in which it occurred; (3) whether                      the judge gave any  curative instructions                      and   the   likely    effect   of    such                      instructions; and (4) the strength of the                                        ____________________          3  In its charge to the jury, the trial court did state generally          that the government had the burden of proof, that the defendants'          had  a constitutional  right not  to testify,  and that  the jury          should not draw any negative inferences from the exercise of that          right.  These comments, however, in no way specifically addressed          the prosecutor's improper remark.                                         -10-                      evidence against the defendant.          United  States v.  Manning,  23 F.3d  570,  574 (1st  Cir.  1994)          ______________     _______          (citations  omitted).    We  treat  these  factors  in order,  to          determine if the prosecutor's comment was harmless.                      First,  as  we discussed  above,  we  believe that  the          prosecutor's  argument  constituted a  violation  of the  Griffin                                                                    _______          rule.   Additionally,  we believe  that the  comments were,  in a          sense, deliberate.   In his closing argument, the  prosecutor had          constructed  an  analogy based  on the  facts  of the  case, with          certain  rhetoric  significantly repeated,  which appeared  to be          planned.   We do  not believe  that the  prosecutor intentionally          intended to influence the jury by commenting on  Hardy's silence,          and we hope  that our belief  is not misplaced.   We do  believe,          however, that  when preparing or reviewing  his proposed closing,          the  prosecutor  should  have  known  that  such  a  comment  was          improper.                      Second, we point out that this comment was made against          a  backdrop where the possibility that Hardy would receive a fair          trial  was already in danger -- that is, the prosecutor's closing          was not an isolated instance of misconduct.  See United States v.                                                       ___ _____________          Capone, 683 F.2d  582, 586 (1st Cir. 1982).   In Moreno, 991 F.2d          ______                                           ______          at  947-51, we addressed several  arguments, (two in the majority          opinion, two more in the dissent) which Hardy has also raised  in          this  appeal,   relating  to  improper  arguments   made  by  the          government during trial.   Our conclusions in Moreno  are equally                                                        ______          applicable to this case.                                         -11-                    In Moreno,  we noted  that in the  prosecutor's opening                       ______          remarks,  he stated,  "the evidence  will show  that [the  police          officers] were doing 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."    Moreno, 991  F.2d at 947.   We concluded  that because                     ______          there was no evidence  in the case about "senseless  violence" or          "shootings  and  killings,"  it  was patently  improper  for  the          prosecutor to  make those remarks.  Id.   The remarks played upon                                              __          the jury's  emotional reaction  to neighborhood violence  and was          outside the bounds of legitimate argument.  Id.                                                        __                    We  were equally disturbed by a  second argument by the          prosecutor which  not  only  reiterated  the  senseless  violence          theme, but also established a second departure from the "straight          and narrow."   Id. at 948.  The prosecutor  argued in his closing                         __          that  the  shotgun  was not  just  tossed  away but  deliberately          concealed,  and 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.  But          I'm sure Mr.  Hardy had other  things on his  mind going  through          there, like getting  away from the cops."  Although we found that          both of these arguments  were improper, we found that  the errors          were harmless as they related to Moreno.4                                        ____________________          4  We  stated that the prosecutor's comments about  the danger to          Mr. Hooker and his family,  although improper, were harmless when          considered  against Moreno,  in part,  because the  objectionable          remarks did not directly  relate to Moreno.  Moreno,  991 F.2d at                                                       ______          948.  The improper remarks, however, did have a greater effect on                                         -12-                    The  dissent  found  two  more arguments  made  by  the          prosecutors  to be  troublesome.   The prosecutor  vouched for  a          government witness, intimating  that that witness possessed  some          information  beyond   the  evidence   presented.    Id.   at  951                                                              __          (Torruella,  J., dissenting).    The prosecutor  also  improperly          disparaged defense counsel, by stating that they were paid to see          things in a  different way,  defense counsel was  talking out  of          both sides of his mouth, and  that one defense argument was meant          to divert the jury's attention.  Id.; see, e.g., United States v.                                           __   ___  ____  _____________          Boldt,  929 F.2d  35,  40  (1st  Cir.  1991)  (finding  that  the          _____          prosecutor's statement  that "it's  a favorite defense  tactic to          try  to  get you  to focus  on  unnecessary facts"  was improper,          especially in light  of the institutional  nature of the  comment          which  cast suspicion on the role of defense counsel in general).          The  jury  was therefore  exposed to  a  number of  emotional and          prejudicial  arguments  which  potentially  interfered  with  its          ability to appraise the evidence objectively and dispassionately.                    Third,   while  the   trial   court  gave   a  limiting          instruction,  and  Hardy's counsel  did  not  request a  stronger          instruction,  we do not believe  that the curative  effect of the          judge's  instruction  negated  the effects  of  the  prosecutor's          constitutional indiscretion.   Whether a curative  instruction is          sufficient to avoid prejudice depends on the impact of the remark                                        ____________________          Hardy's  ability to  get a  fair trial,  because the  remarks did          relate directly to his alleged actions.                                          -13-          taken in the context of the whole of the evidence, including  any          other aggravating remarks or  circumstances that may increase the          risk  that  the  improper remark  did  affect  the  outcome.   An          improper comment  that may seem insignificant  where the evidence          is overwhelming can  assume a  very different aspect  in a  close          case.  This is such a close case.                     Finally, the strength of the evidence proffered against          Hardy was not overwhelming.  First, the government's case against          Hardy  largely  rested  on  the credibility  of  Officer  Garvey.          Therefore,  if  the jury  disbelieved,  or  had questions  about,          Officer Garvey's  testimony, we do  not believe that  Hardy would          have  been convicted.   Second, the jury  was required to  draw a          number of inferences in  order to convict Hardy.  No officer ever          saw  Hardy possess either  the pistol  or the  sawed-off shotgun.          While Officer  Garvey testified that  after he stopped  Hardy, he          heard a  soft thud as Hardy  raised his arms, Garvey  never saw a          gun in Hardy's hand, or fall from his hand, despite the fact that          he  was only  two to  three feet  away from  Hardy.   Rather, the          officers  found the  pistol later,  in the  area where  Hardy was          stopped.   Additionally, other officers found  the shotgun hidden          in  an area that Hardy  had seemingly passed  through, but nobody          saw Hardy dispose of the weapon there.  There were also other men          stopped in the area  who could have somehow been  responsible for          the guns.  We  do not believe that this  circumstantial evidence,          which for the most  part rested on Officer  Garvey's credibility,          clearly established  Hardy's guilt.   Moreover, in  light of  the                                         -14-          prosecution's  comment, the  jury  may very  well have  wondered,          either consciously or subconsciously, what Hardy had to say about          the  extent of his involvement,  and concluded that  he must have          had something to hide because of his failure to testify.                    The  district court  did  not evaluate  these  relevant          factors  on the record to determine  if a new trial was warranted          in  light of  the  prosecutor's improper  closing argument,  when          Hardy moved  for a mistrial.  Because all of these factors cut in          favor of  a new trial, we believe  that the district court abused          its  discretion when  it denied Hardy's  motion.   The government          improperly commented on Hardy's failure  to testify, and in light          of  the government's  other  improper comments  and the  evidence          presented, we  believe that  this  constituted reversible  error.          See, e.g., United States v. Barton, 731 F.2d  669, 675 (10th Cir.          ___  ____  _____________    ______          1984).    For   the   foregoing   reasons,  we   vacate   Hardy's                                                      _____________________          convictions and order a new trial.          _________________________________                                         -15-
