
USCA1 Opinion

	




          March 18, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1935                                    UNITED STATES,                                      Appellee,                                          v.                                   DENNIS BONNEAU,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this  Court issued on February 24, 1993 is  amended        as follows:            Page 2,  line 9:  Insert  a footnote after  the word "testify"  to        read:              "The  Assistant  United   States  Attorney  who  represented   the        government on appeal did not represent the government at trial."        February 24, 1993       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________        No. 92-1935                                              UNITED STATES,                                      Appellee,                                          v.                                   DENNIS BONNEAU,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________            Peter Goldberger, Pamela A. Wilk  and Law Office of  Alan Ellis on            ________________  ______________      _________________________        brief for appellant.            A.  John Pappalardo,  United  States Attorney,  and  Dina  Michael            ___________________                                  _____________        Chaitowitz, Assistant United States Attorney, on brief for appellee.        __________                                  __________________                                  __________________                      Per Curiam.   We have carefully reviewed the record                      __________            and briefs and  find no merit  substantially for the  reasons            stated  by  the district  court.   We pause  to add  only two            observations.                      1.    The prosecutor's  reference  to  Ms. Aguiar's            recent trial, immediately followed by the inquiry whether Ms.            Aguiar  had ever told anyone her present version, was, in all            probability, an  improper  comment  on  Aguiar's  failure  to            testify1.   We are convinced, however, by the strength of the            evidence   against  defendant   and   the  court's   curative            instruction that  the error was harmless  beyond a reasonable            doubt, and  the  court did  not  err in  denying  defendant's            motion for a mistrial.                      2.   The fact that Aguiar had been convicted of the            charges  for  which  defendant  was  on  trial  was  properly            admissible under  Fed. R. Evid.  609 for impeachment.   Here,            where defendant said he had no objection to the  conviction's            admission, defendant did not object  to the question asked or            request a limiting  instruction, and the  prosecutor did  not            argue  any improper  inference should  be drawn,  it  was not            plain error  for the  court  to fail  sua  sponte to  give  a                                                  ___  ______            limiting  instruction.   United States  v. Ramirez,  963 F.2d                                     _____________     _______            693,  702-03  (5th  Cir.)  (no  error   to  omit  sua  sponte                                                              ___  ______            instruction  concerning  co-defendants' guilty  pleas), cert.                                                                    ____            denied, 113  S.Ct. 388  (1992); United  States v.  Sides, 944            ______                          ______________     _____                                            ____________________            1.  The Assistant United States  Attorney who represented the            government  on appeal  did  not represent  the government  at            trial.            F.2d 1554, 1561-62 (10th Cir. 1991);  United States  v. De La                                                  _____________     _____            Cruz, 902 F.2d 121, 124  (1st Cir. 1980).  Nor  did counsel's            ____            failure  to   object  or  request   a  limiting   instruction            constitute  ineffective  assistance.   See  United States  v.                                                   ___  _____________            Rogers, 939  F.2d 591,  594-95 (8th Cir.)  (tactical decision            ______            not  to  request limiting  instruction  on  effect of  guilty            plea), cert. denied, 112 S.Ct. 609 (1991).                   ____  ______                      Affirmed.                      ________                                         -3-
