
USCA1 Opinion

	




          January 5, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 92-1612        No. 92-1612                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                                    JOSEPH SMITH,                                    JOSEPH SMITH,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                 ____________________                                        Before                                        Before                                Selya, Cyr and Boudin,                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   Circuit Judges.                                   ______________                                 ____________________                                 ____________________             Ernest Barone for appellant.             Ernest Barone for appellant.             _____________             Margaret E.  Curran, Assistant United States  Attorney, with whom             Margaret E.  Curran, Assistant United States  Attorney, with whom             ___________________        Lincoln C.  Almond, United  States Attorney, and  Lawrence D.  Gaynor,        Lincoln C.  Almond, United  States Attorney, and  Lawrence D.  Gaynor,        __________________                                ___________________        Assistant United States Attorney, were on brief for appellee.        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                                 ____________________                                 ____________________                    CYR, Circuit Judge.  Defendant Joseph Smith appeals his                    CYR, Circuit Judge                         _____________          conviction for  possessing a firearm after  having been convicted          of a felony, in violation of 18 U.S.C.   922(g)(1), claiming that          the government's closing argument deprived  him of a fair  trial.          We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The following facts are undisputed.  On August 4, 1991,          Patrolman Robert Brown, Jr.,  responded to a reported disturbance          at the  Hot Club in Providence, Rhode Island.  After assisting in          resolving  the dispute, Officer Brown  was told by  a patron that          another  disturbance had broken out  between two men  in a nearby          parking  lot.   As  Brown approached  the  parking lot,  a  woman          standing  near him  screamed:   "That  man has  a gun!"   In  the          direction indicated by the woman, the officer saw appellant Smith          standing alone, and other people running away from Smith.                    The officer  approached appellant and told  him to drop          the  gun.  Smith held out his  palms, which were empty, and said,          "I ain't  got no gun," then  turned and ran.   Officer Brown gave          chase  and  radioed for  assistance.    Following a  two-to-three          minute chase,  covering one-quarter  to one-half mile,  Smith was          apprehended;  an  unloaded  .25  caliber  automatic  handgun  was          removed from  his waistband.   Appellant's sole defense  at trial          wasthathispossessionofthe firearmwasjustifiedinthe circumstances.                    According  to his  own  testimony,  appellant had  been          standing outside the  club when  another man said  to him:   "Hey          Joe, I've got your f'ing girlfriend."  Turning  around, appellant          saw a  man,  whom  he identified  as  George  Sacco,  restraining          appellant's girlfriend, Deirdre Machado, and holding a gun to her          side.  Appellant testified that he approached Sacco, who tripped,          and, after they scuffled,  appellant grabbed the gun  from Sacco.          Appellant  testified that it was  Machado who yelled:   "That man          has a  gun," and  that Machado  had meant that  Sacco had  a gun.          Appellant admitted at  trial that he had denied having a gun when          asked by Officer Brown, and had started  to run.  Deirdre Machado          essentially  corroborated  appellant's  version  of  the  events.          Officer  Brown,  on   the  other  hand,  testified  that  he  was          acquainted  with Machado and  that she was not  the woman who had          yelled to him that night.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Appellant claims that the government's closing argument          deprived  him of a fair  trial by disparaging  the credibility of          the witnesses  for  the defense  and  infringing upon  the  fact-          finding function reserved to the jury.  As there was no objection          at trial,  we review for plain error, United States v. Grant, 971                                                _____________    _____          F.2d  799,  810  (1st Cir.  1992)  (en  banc);  United States  v.                                                          _____________          Nickens, 955  F.2d 112, 120 (1st Cir.),  cert. denied, 113 S. Ct.          _______                                  _____ ______          108  (1992),  which  means  we  must  evaluate  the  prosecutor's                                          3          statements in light of the entire record, Grant, 971 F.2d at 810,                                                    _____          and  may  overturn the  jury  verdict  only if  the  government's          closing  argument "so poisoned the  well" that it  is likely that          the verdict  was affected.   United  States v. Mejia-Lozano,  829                                       ______________    ____________          F.2d  268, 274 (1st  Cir. 1987); United  States v. Panet-Collazo,                                           ______________    _____________          960  F.2d 256,  260  (1st Cir.),  cert.  denied, 113  S. Ct.  220                                            _____  ______          (1992).  We discern no plain error.                    According to appellant, the prosecutor's  statements in          closing  argument     that  Sacco did  not  exist, appellant  and          Machado  were  lying,  and  appellant was  guilty      improperly          implied  that  the  prosecutor  possessed  knowledge  beyond  the          purview  of the evidence and improperly  invoked the authority of          his  office to bolster his  interpretation of the  evidence.  The          crux  of appellant's claim  is that  his and  Machado's testimony          concerning George Sacco's role was uncontradicted and, therefore,          there  was  no evidence  on which  to predicate  the prosecutor's                         ________          contention  that he and Machado were lying; accordingly, were the          jury to credit their testimony,  there was sufficient evidence to          acquit on the justification defense.                    Although  it is  plainly improper  for a  prosecutor to          imply  reliance on  knowledge  or evidence  not available  to the          jury, United States v. Cain, 544 F.2d 1113, 1116 (1st Cir. 1976);                _____________    ____          Patriarca  v. United States, 402  F.2d 314, 321  (1st Cir. 1968),          _________     _____________          cert.  denied, 393 U.S. 1022 (1969), there was no such intimation          _____  ______          in this case.  Rather,  considered in the context of the  closing          argument  as a  whole, the  comments cited  by appellant     that                                          4          there was no Sacco and that Machado belatedly concocted the story          to prevent appellant from being convicted    suggested inferences          the  jury  might draw  from the  evidence,1  a proper  subject of          comment  by  the prosecutor.    The  government  may  attempt  to          persuade the jury to draw suggested inferences unfavorable to the          defense,  as long  as  the prosecutor's  own  opinion as  to  the                                                   ___  _______          witness' credibility is not urged on the jury.  See, e.g., United                                                          ___  ____  ______          States v. Mount, 896 F.2d 612, 625 (1st Cir. 1990).          ______    _____                    During  closing argument,  the prosecutor  reminded the          jury that  Officer Brown  had testified that     at the  time the          unidentified woman screamed:  "That man has  a gun!"    Brown saw          no  one else near the  scene, except appellant  and other persons          running from appellant.  The prosecutor further reminded the jury                  ____ _________          that Officer Brown had testified that the  unidentified woman was          not Deirdre  Machado.  Finally, the prosecutor noted that Machado          admitted at trial  that she had never before told  the police, or                                        ____________________               1These comments were as follows:                    This  business about  Sacco  is a  complete fabri-               cation.  That's what the evidence shows.                        ______ ____ ___ ________ _____               . . . .                    Does  that  sound  like  someone who's  worthy  of               belief to you?  Of course not.  She [Machado] never did               those  things, ladies and gentlemen.  She never filed a               complaint against  Sacco because  Sacco never  did any-               thing.  There was  no Sacco.  It's a  convenient story.               It's a complete fabrication.   She never tried to  help               him out  [by filing  a complaint] because  he's guilty.               He  didn't do  anything to  disarm Sacco and  save her.               That's a lot of nonsense.                    There was no George Sacco anyplace  because George               Sacco wasn't there.          (Emphasis added.)                                          5          anyone else, about  being restrained at  gunpoint by Sacco,  even          though  she was  appellant's  friend and  believed  he was  being          charged  with a crime  that had  been prompted  by his  desire to          protect her from Sacco.                    Although the phrasing of the prosecutor's argument left          something to be desired, it was  not improper to urge the jury to          evaluate the  plausibility of the justification  defense in light          of the  other evidence  (and the  lack thereof),  as well  as the          motivations  and  biases  of  the  defense  witnesses,  including          appellant.  See United States v.  Savarese, 649 F.2d 83, 87  (1st                      ___ _____________     ________          Cir. 1981) (defendant "had  no right to expect the  government to          refrain from commenting on the quality  of his . . . witnesses or          from  attacking  the weak  evidentiary  foundation  on which  the          [defense] rested");  Mount,  896 F.2d  at 626  (not improper  for                               _____          government to argue that  its interpretation of the evidence  was          more persuasive); United States v. Glantz, 810 F.2d 316, 321 (1st                            _____________    ______          Cir.),  cert. denied, 482 U.S. 929 (1987) (government is entitled                  ____  ______          to comment on plausibility of defense theory).  Nevertheless, the          government's closing unnecessarily risked the impression that the          prosecutor was vouching, either personally  or on the strength of          other extraneous considerations, that George Sacco did not exist,          rather than merely urging the jury to so conclude on the basis of                                        ____          the evidence.   See, e.g., United States v.  Turner, 892 F.2d 11,              ________    ___  ____  _____________     ______          14  (1st Cir.  1989)  ("[i]t  is  the  jury's  responsibility  to          evaluate the credibility of the evidence presented").  Similarly,          the  prosecutor's  repeated  statements  that  the  defendant was                                          6          guilty  verged on the exclusive province of the jury to determine          guilt.   Of  course, any  representation as  to the  prosecutor's          personal belief in the guilt of an accused is improper.  Nickens,                                                                   _______          955 F.2d  at 121; Mejia-Lozano, 829  F.2d at 273.2   The means to                            ____________          eliminate  even an appearance  of overreaching were  at hand; the          prosecutor   need  simply   have   predicated  these   entreaties          explicitly and  exclusively on  reasonable inferences yielded  by          __________      ___________          the  evidence.  See Cain, 544 F.2d at 1116 (prosecutor's argument                          ___ ____          that accused is guilty is not improper, provided it calls for the          jury's assessment of  the evidence  and is not  presented as  the          personal opinion of the prosecutor).3                                        ____________________               2The government  concedes that  the prosecutor, on  at least          one  other occasion,  implied  a personal  belief in  appellant's          guilt.  The prosecutor stated:                    I think when you look at the evidence in this case                    _ _____               and use your common  sense, there's only one conclusion               you can  reach and that  is that this  defendant Joseph               Smith has been proved guilty beyond a reasonable doubt.          (Emphasis  added.)   The prosecutor's  statement could  have been          purged and converted  into permissible argument  by a simple  re-          phrasing:  "The government submits . . ."               Another statement by the prosecutor     that even if  appel-          lant's story were believed  he was "still guilty" because  he had          not established  a justification  defense    permissibly  urged a          reasonable  inference  based  directly  and  exclusively  on  the          evidence.  See infra at pp. 10-12.                     ___ _____               3Recognizing its  special obligation to see  that justice is          done   and  to  refrain  from   improper  methods  in  seeking  a          conviction, see  United States v. Quesada-Bonilla,  952 F.2d 597,                      ___  _____________    _______________          602  (1st Cir. 1991);  Berger v. United  States, 295 U.S.  78, 88                                 ______    ______________          (1935),  the  government forthrightly  concedes  improprieties in          certain other statements made in its closing argument.               It concedes that it  impermissibly used pejorative  language          in  repeatedly  characterizing  the  testimony  of appellant  and          Machado as  lies.  See  United States  v. Rodriguez-Estrada,  877                             ___  _____________     _________________          F.2d 153, 159 (1st Cir. 1989) ("prosecutor's obligation to desist          from the use  of pejorative language . . . is every bit as solemn                                          7                    A new trial is  unwarranted so long  as we are able  to          conclude  with  a high  degree  of  confidence that  the  alleged          prosecutorial misconduct did not affect the outcome of the trial.          Mejia-Lozano, 829 F.2d  at 274; Panet-Collazo,  960 F.2d at  260.          ____________                    _____________          The strength of the case against  the defendant often is the most          significant factor  to  be  balanced  against  the  prosecutorial          misconduct.   United States v. Boldt,  929 F.2d 35,  41 (1st Cir.                        _____________    _____          1991);  Rodriguez-Estrada, 877 F.2d at 159.  We therefore examine                  _________________          the evidence,  and other  relevant factors, to  determine whether          the alleged prosecutorial misconduct warranted a new trial.                    The  prejudice  from  the  errant  statements   in  the          prosecutor's  closing argument  was  mitigated somewhat  by their          context  and ambiguity.  See Grant, 971  F.2d at 810.  Cf. United                                   ___ _____                     ___ ______          States  v. Ingraldi,  793 F.2d  408, 416  (1st Cir.  1986) (among          ______     ________          factors for  determining whether new  trial is warranted  is "the          severity of the  misconduct"); United States  v. Brown, 938  F.2d                                         _____________     _____          1482,  1489 (1st  Cir.),  cert. denied,  112  S. Ct.  611  (1991)                                    _____ ______          (same).  Although their   ambiguity perhaps risked jury confusion                                                      ______          as to its role  as the sole  arbiter of guilt  and finder of  the          facts,    the    prosecutor's   contentions    that   appellant's                                        ____________________          as  his obligation to attempt  to bring the  guilty to account");          cf. Nickens, 955 F.2d at 121 ("[i]t is . . .  inappropriate for a          ___ _______          prosecutor to call defendant a liar").  The prosecutor character-          ized their testimony as "a lie," "one tall tale," and "a complete          fabrication."    The  government concedes  as  well  that  it was          improper  for the  prosecutor  to state  that  he "welcomed"  the          burden of proof in this case.  See United States v. Flaherty, 668                                         ___ _____________    ________          F.2d  566, 597  (1st  Cir. 1981)  (statement  told jury  "of  the          Government's confidence that the evidence would show guilt beyond          a reasonable doubt").                                          8          justification defense  had been concocted and that  he was guilty          were  in no  sense objectionable  as mischaracterizations  of the          evidence,  but  because  they  were  too  loosely  linked to  the                                                             ______          evidence, hence  may have  conveyed the  personal opinion of  the          prosecutor.  Cf.  United States  v. Farnkoff, 535  F.2d 661,  668                       ___  _____________     ________          (1st Cir. 1976) (the fact that the prosecutor made clear that the          jury  should  arrive  at  its  verdict, based  on  the  evidence,          mitigated the  effect of  statement that defendant  was guilty).4          Absent any  suggestion of superior knowledge  or personal opinion          on  the part  of the prosecutor,  similar argumentation  has been          found not  to be improper.  See United States v. Garcia, 818 F.2d                                      ___ _____________    ______          136,  143-44 (1st  Cir.  1987) ("Although  we think  a prosecutor          would be well advised  to avoid directly accusing a  defendant of          lying    since jurors could believe the  government has knowledge          outside  the evidence  about the  defendant's veracity     we are          confident  that  the  statements in  this  case  would have  been                                        ____________________               4The  court   firmly  advised   the  jury  in   its  opening          instructions as follows:               [Y]ou are the judges of the  facts.  You have to decide               what actually happened in this case.  You and you alone               make that decision.  No one, simply no one can trespass               on   that   very  specialized   unique  area   that  is               exclusively yours . . .               In its final  jury charge, the court reiterated:  "Remember,          I told you  that you are the sole judges of the facts.  You alone          decide the facts . . . You are the sole judges of the facts."               Contemporaneous  curative  instructions were  not  given, as          none were  requested.  In its opening jury instructions, however,          the  district court  informed  the jury  that  the statements  of          counsel  are not evidence.   In its final  charge, given the same          day as its opening instructions, the court reminded the jury that          the  evidence was limited to  the testimony of  the witnesses and          the exhibits admitted by the court.                                          9          perceived only as commentary on the implausibility of the  defen-          dant's  story.").   Nor did  the overzealous  statement that  the          prosecutor "welcome[d]" the burden of proof constitute reversible          error,  as  its context  did  not suggest  that  the prosecutor's          confidence was  founded on  knowledge or evidence  unavailable to          the jury.5   See Flaherty, 668  F.2d at 597.   Viewed in context,                       ___ ________          these  ambiguous statements  were not  "so egregious  that [they]          'seriously  affect[ed]   the   fairness,  integrity   or   public          reputation of judicial  proceedings.'"  Nickens, 955  F.2d at 121                                                  _______          (quoting United States v. Young, 470 U.S. 1, 15 (1985)).6                   _____________    _____                    Even  more  importantly,   however,  the   prosecutor's          statements  must be  considered  harmless error  in  view of  the          uncontested evidence  against appellant.  The  entire defense was          ___________                                    ______          that appellant's possession of the firearm was  justified.  Among          the  essential elements  of a  justification defense,  see, e.g.,                                                                 ___  ____          United  States  v.  Lemon, 824  F.2d  763,  765  (9th Cir.  1987)          ______________      _____          (defining four elements);  United States v. Gant, 691  F.2d 1159,                                     _____________    ____          1162-63  (5th Cir.  1982) (same),  is the  "requirement that  the          defendant have no alternative to possession of the firearm  [and]          that  the defendant  get rid  of the  firearm as  soon as  a safe          opportunity  arises."  United States v.  Singleton, 902 F.2d 471,                                 _____________     _________          473 (6th Cir.), cert. denied, 111 S. Ct. 196 (1990).                          _____ ______                                        ____________________               5The statement  was as follows:   "[T]he government  has the          burden of  proof in this case  and I welcome that  burden, ladies          and  gentlemen, because in this case we have proven the defendant          guilty beyond a reasonable doubt."               6See also supra note 4.                ___ ____ _____                                          10                    The jury's  rejection of the justification  defense did          not depend on their discounting,  in any measure whatever, either                                               ___          Machado's  or appellant's  testimony  about Sacco's  involvement.          Appellant took the stand and admitted that he had denied having a          firearm when asked by  Officer Brown, then fled with  the firearm          still  in his possession.  There was no contention that appellant          believed  he was in any  physical danger from  Officer Brown, but                                                   ____  _______ _____          only from Sacco.   Thus, even assuming appellant's  possession of          the firearm was justified at the outset, his refusal to surrender          it at the request of a  police officer from whom he did not  fear          bodily  harm   (as   distinguished  from   arrest   for   illegal          possession),  rendered  the  justification defense  unsupportable          under any view of the evidence.  See United States v. Stover, 822                                           ___ _____________    ______          F.2d 48, 50 (8th Cir. 1987) (justification defense does not apply          when possession continues after  the imminent danger of death  or          serious bodily harm has passed).                    Given  that  appellant's   justification  defense   was          fatally  deficient, as a matter of law, without regard to whether          the  roles of  George  Sacco and  Deirdre  Machado were  real  or          concocted,   the  government's   closing  argument   affected  no          substantial right.7   See,  e.g., Rodriguez-Estrada, 877  F.2d at                                ___   ____  _________________          159 (although prosecutor called defendant a liar and crook, error          held  "harmless" in  light  of overwhelming  evidence of  guilt);          United States v. Doe, 860 F.2d 488, 494-95 (1st Cir. 1988), cert.          _____________    ___                                        _____                                        ____________________               7See United States v.  Mitchell, 725 F.2d 832, 837  (2d Cir.                ___ _____________     ________          1983) (court gave  the defendant "an opportunity to  be acquitted          on the basis of a defense to which he was not entitled").                                          11          denied, 490 U.S. 1049  (1989) (unwarranted comments by prosecutor          ______          ruled "harmless"  in light  of overwhelming evidence  of guilt).8          Thus,   we  have   the   utmost  confidence   that  any   alleged          prosecutorial misconduct did not affect the outcome of the trial.                    Although  appellant did  not have  a perfect  trial, he          most assuredly received a  fair one, see United States  v. Hodge-                                               ___ _____________     ______          Balwing, 952 F.2d 607, 611  (1st Cir. 1991), and is  not entitled          _______          to  a new one.   See  Fed. R.  Crim. P.  52(b) (no  "plain error"                           ___          unless it "affect[s] substantial rights").                    Affirmed.                    ________                                        ____________________               8Finally,  the prosecutor's statements were not so egregious          as to warrant ordering a new trial as a deterrent  to future mis-          conduct.   See, e.g., Quesada-Bonilla, 952 F.2d at 602 (court may                     ___  ____  _______________          grant new trial  to deter future prosecutorial misconduct).   The          Supreme Court has cautioned against reversals for harmless error.          United States v.  Hasting, 461 U.S. 499,  505-07 (1983) (exercise          _____________     _______          of  supervisory power  to  reverse conviction  as deterrent  held          unnecessary where error was harmless).  Moreover, we are aware of          nothing  which  would  indicate  that  these  improprieties  were          anything  other  than an  isolated  instance  which will  not  be          repeated.   See United  States v. Dworken,  855 F.2d  12, 32 (1st                      ___ ______________    _______          Cir.  1988)  (we will  not  order a  new  trial  simply to  deter          misconduct in circumstances where we are confident the misconduct          will not be repeated).                                          12
