United States v. Manor

United States Court of Appeals
For the First Circuit

No. 09-2133

UNITED STATES OF AMERICA,

Appellee,

v.

DARIUS MANOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lipez, Selya, and Thompson,
Circuit Judges.

James H. Budreau for appellant.
Theodore B. Heinrich, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

January 25, 2011
 THOMPSON, Circuit Judge. A melee at the movies led to

Darius Manor's conviction for being a felon in possession of a

firearm and ammunition. See 18 U.S.C. § 922(g)(1).1 Manor

appeals, claiming insufficiency of evidence and prosecutorial

misconduct. Detecting no error, we affirm.

BACKGROUND

We recount the key facts in the light most compatible

with the verdict, see, e.g., United States v. Troy, 618 F.3d 27, 29

(1st Cir. 2010), adding further facts as we discuss particular

issues.

The Chase

Catching a late-night movie at a Loews theater in

downtown Boston, Gregoire Adrien heard two men arguing behind him.

Tensions mounted, and one of the men asked the other if he wanted

to "take it outside." Adrien intervened, and one of the arguers –

who turned out to be Manor – pointed a silver handgun at him. "Why

the hell would you pull a gun on me?" Adrien said as he rushed the

gun-wielding Manor, pushing him through the theater doors and into

the lobby. Manor took off. But Adrien stayed with him, pointing

1
That statute provides in pertinent part:

It shall be unlawful . . . for any person . . . who has
been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship
or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.
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him out to Boston police officer Troy Caisey, who was in the

theater's third-floor lobby.

Telling Adrien to stay put, Caisey radioed dispatch with

the particulars and ran after Manor. Caisey ordered Manor to stop.

But Manor kept on going, racing down two escalators in the wrong

direction. Importantly, Manor turned and looked back at Caisey

once at the bottom of the second-floor escalator and again as he

ran out of the building onto Tremont Street.

Caisey chased Manor down Tremont, radioing dispatch with

the new details. Manor turned onto Boylston Street. Caisey was

close, only fifteen yards behind him. He lost sight of him for a

second or two and then spotted him on Tamworth Street, just off of

Boylston. They were the only two there – but not for long.

Emerson College security officer Joseph Linscott heard

Caisey's radio broadcast, headed to Tamworth, and saw Manor racing

toward him. Linscott could not see Manor's face clearly (though he

did catch a glimpse of it), but he could see Manor's stainless-

steel gun plain as day. Drawing his revolver, Linscott ordered

Manor to the ground. Manor refused, choosing instead to duck

between two cars in a nearby parking lot – something Linscott and

Caisey both saw. Linscott dropped down and noticed some movement

underneath the cars. Both he and Caisey then saw Manor run out to

the middle of Tamworth. Unwilling to go to the ground, Manor

headed toward Linscott, screaming profanities. Linscott thought a

fight might ensue. He was right. It was "one of the most
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aggressive fights I've been in," Linscott later said. Linscott,

Caisey, and others eventually cuffed and arrested the rampaging

Manor. And Linscott found a loaded stainless-steel gun underneath

a car that Manor had hidden behind, a gun Adrien later said looked

like the one displayed in the theater.

The Trial

Indicted under the felon-in-possession statute, Manor

stipulated that he was a convicted felon and that the gun and

ammunition found had moved through interstate commerce – which

meant the only issue in play was whether he had knowingly possessed

these items. See generally United States v. Scott, 564 F.3d 34, 39

(1st Cir. 2009) (discussing the elements of 18 U.S.C. § 922(g)(1)).

Adrien, Caisey, and Linscott all testified. Manor did not and

called no witnesses.

As indicated by defense counsel's cross-examination and

summation tactics, Manor's main theory was that he had the bad luck

of being in the parking lot at the wrong time. Saying the

witnesses gave differing accounts of the gunman's attire and lost

sight of the suspect during the chase, Manor insisted that the

prosecution had not proved beyond a reasonable doubt that he was

the person who had flashed a gun at Adrien in the theater and had

dashed down Tamworth. But the jury did not buy Manor's mistaken-

identity argument and so found him guilty. The district judge

sentenced him to 92 months in prison, and this appeal followed.

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 ANALYSIS

Sufficient Evidence? – Yes

As he did below, Manor contends that the prosecution

failed to prove beyond a reasonable doubt that he possessed the

loaded gun recovered on Tamworth. But he faces obstacles that are

too high to surmount. For starters, we review his claim de novo,

surveying the evidence – direct and circumstantial – in the light

most flattering to the prosecution's theory of the case. See,

e.g., United States v. Guerra-Garcia, 336 F.3d 19, 22 (1st Cir.

2003). Resolving any credibility disputes against him, we must

affirm if the record, so viewed, could have permitted a rational

jury to find guilt beyond a reasonable doubt. See, e.g., United

States v. Castro-Davis, 612 F.3d 53, 60 (1st Cir. 2010). Also, it

matters not whether he can raise a plausible theory of innocence:

if the record as a whole justifies a "judgment of conviction, it

need not rule out other hypotheses more congenial to a finding of

innocence." United States v. Gifford, 17 F.3d 462, 467 (1st Cir.

1994).

With the proper standards in mind, we recap the volume of

evidence against him. Caisey identified Manor as the person Adrien

said had drawn a gun on him. Caisey also identified Manor as the

person he had tracked from the theater and nabbed on Tamworth.

Equally devastating to Manor, Linscott identified him as the gun-

carrying malefactor he had seen on Tamworth. And all of this sinks

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Manor's claim that no one identified him as the man who had fled

the movies and raced to Tamworth.

Manor makes much of the fact that Caisey lost sight of

the suspect on Boylston. Manor's counsel emphasized this to the

jury, too. But Caisey testified that he only lost the suspect

briefly, spotting him again seconds later on Tamworth. And, Caisey

stressed, the person arrested on Tamworth had on the same clothes

as the person chased from the theater. Linscott backed up Caisey's

account, testifying that he had run into a person on Tamworth who

fit the gunman's description to a T. Searching for a way around

this, Manor essentially asks us to re-weigh the evidence and

second-guess the jury's credibility decisions, but we can do

neither. See, e.g., Castro-Davis, 612 F.3d at 60; United States v.

Garcia-Pastrana, 584 F.3d 351, 367 (1st Cir. 2009).

Undeterred, Manor advances a similar argument when it

comes to Linscott, suggesting that Linscott saw two people – one

person (not Manor) tearing down Tamworth with a gun and another

(Manor) popping up from between the two cars without a gun. But

Linscott's testimony cuts the ground out from under Manor's claim.

Telling the jury that he saw a man on Tamworth dressed as Caisey

had described over the radio, Linscott then delivered a blow-by-

blow account of what happened next: "I double-checked" to ensure

that this was "the suspect," Linscott said. "I continued to look

at him" and saw a gun in "his" hand. "As he was running," Linscott

added, "[h]e was looking to the left where there was a parking lot
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filled with cars. And he cut in between a couple of cars." Then

the "suspect emerged from between the vehicles with his hands in

the air." There is no way to read this testimony as saying

Linscott saw two different people. Clinching matters, Linscott

made clear during cross-examination that the man he saw scurry onto

the lot with a gun and then reappear without one was Manor. Given

this body of evidence, Manor's two-person theory is unpersuasive.

Manor also insists that certain inconsistencies in the

witnesses' descriptions of the suspect's attire ruined the

identification. Not so. Adrien, Casey, and Linscott gave

essentially the same description. Adrien described the gunman as

wearing a "scully" hat, a puffy gray coat, a white shirt, and blue

jeans. Caisey described him as wearing a three-quarter length

brown jacket, a white t-shirt, and blue jeans. And Linscott

described him as wearing a three-quarter length dark jacket, a

white t-shirt, and jeans. Caisey's account jibes perfectly with

Linscott's, and Caisey's and Linscott's jibe nicely with Adrien's,

too. The only difference is Adrien mentioned a hat and called the

coat gray and puffy. No matter: neither Caisey nor Linscott said

the suspect was hatless, and, most critically, the evidence

confirms that Caisey tailed the very person Adrien had identified

as the gunman. The nits Manor picks work best (if at all) before

juries (his counsel argued these points to the jury, to no avail).

But they hold no sway here. See, e.g., Garcia-Pastrana, 584 F.3d

at 367; United States v. Thomas, 467 F.3d 49, 55 (1st Cir. 2006).
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 Finally, Manor contends that "uncontradicted evidence" in

the form of a "booking" photo and sheet showed that he had on a

blue t-shirt, jeans, and no coat – not the white t-shirt, jeans,

and brown jacket ensemble that Caisey had described. Manor's

lawyer asked Caisey about this on cross, handing him what counsel

said was a booking photo and sheet. Caisey agreed that the photo

showed Manor with a blue t-shirt and that the sheet did not mention

a brown jacket. But he stressed that he was not there for Manor's

booking. Manor's lawyer never had Caisey confirm that the photo

and sheet were what the defense claimed they were, and he never

offered them into evidence at any other point – which hardly makes

these items the stuff from which to craft a winning sufficiency

argument. Cf. generally Troy, 618 F.3d at 31 (stressing that a

reviewing court's goal "is to ascertain whether the record evidence

permitted a reasonable juror to find that each element of the crime

charged was proven beyond a reasonable doubt") (emphasis added).

In any event, after pondering Caisey's testimony, evaluating his

credibility, and drawing the inferences of its choosing, the jury

obviously rejected Manor's theory – and, at the risk of sounding

like a broken record, we cannot second-guess that decision. See,

e.g., Castro-Davis, 612 F.3d at 60. The net result, then, is that

this argument goes nowhere.

That ends this aspect of the appeal. Given the standard

of review, it is a rare occasion that we reverse a sufficiency

ruling, United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006),
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and we see no reason to reverse here. Eyeing the record as we must

from the government's perspective, we conclude that a rational jury

could have found Manor guilty of the felon-in-possession charge

beyond a reasonable doubt. Consequently, his conviction stands.

Prosecutorial Misconduct? – No

Evidence aside, Manor also complains about the

government's closing argument, though he does not contend that the

prosecutor engaged in bad-faith tactics. Here is what the

prosecutor said:

Officer Caisey told you that the man he was
chasing in the theater was wearing a brown
three-quarter length coat, a white T-shirt and
blue jeans. He told you that he saw that
man's face twice before he left the theater:
once when that man looked back at him going
from the second floor to the first floor, and
then again as that man was leaving the theater
on the first floor and going through the glass
doors.

For clarity's sake, we will call that statement 1. The prosecutor

then said:

And, ladies and gentleman, Officer Caisey
identified that man that he saw going from the
second to the first floor, and he identified
that man that he saw leaving the first floor
of the Loews movie theater, and he identified
him as the defendant, Darius Manor, here in
court.

We will call that statement 2.

When the prosecutor finished, Manor's lawyer requested a

sidebar. Zeroing in on statement 2, counsel claimed that the

prosecutor had botched Caisey's testimony. "[M]y memory" of what

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Caisey said, counsel stressed, was "that he could not identify the

defendant from the theater but could identify him from the parking

lot" on Tamworth. "I think I actually cross-examined him on that

point," he quickly added and then asked for a mistrial. The

prosecutor disagreed.2 And the district judge denied the motion,

saying that even though he was not sure whether the prosecutor had

2
"Your Honor," the prosecutor said,

on direct Officer Caisey testified that he saw Mr.
Manor's face twice before he left the theater. On cross,
[defense counsel] asked him if he positively identified
him in the theater . . . . On redirect I cleared it up:
"Did you see him twice when he left the theater? Is the
man who left the theater here today?" He said yes to all
of those questions. I didn't go into detail.

(Emphasis ours.) The government, to its credit, concedes that the
prosecutor did not ask that last question, though his redirect of
Caisey did point to the same conclusion: noting that he had seen
Manor's face and clothing in the theater, Caisey confirmed that the
person arrested on Tamworth after the chase – wearing the same
clothes – was Manor.
Manor never objected to the prosecutor's sidebar remark, but
he plays it up now: convinced that he has shown misconduct as to
the closing, Manor argues that the prosecutor's sidebar misstep
proves his closing misstatement was not an isolated gaffe and thus
helps satisfy the prejudice component of the prosecutorial-
misconduct equation. See generally United States v. De La Paz-
Rentas, 613 F.3d 18, 25 n.2 (1st Cir. 2010) (noting that we will
find reversible error for preserved objections "only if we find
that the prosecutor's remarks were both inappropriate and harmful,"
and stressing that harm turns "on the totality of the
circumstances, including the severity of the misconduct, the
prosecutor's purpose in making the statement (i.e., whether the
statement was willful or inadvertent), the weight of the evidence
supporting the verdict, jury instructions, and curative
instructions") (quotations omitted). We doubt that the
prosecutor's sidebar response somehow affected the verdict,
particularly since it occurred at sidebar, i.e., outside the jury's
earshot. But because we conclude that the prosecutor's closing
was not improper, we need not wrestle with this or any of his other
prejudice theories (more on that later).
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misspoken, he would tell the jurors that their recollections and

understandings of the testimony controlled, not what the lawyers

said the evidence was.

Defense counsel focused on Caisey's testimony in his

closing, arguing that there was less there than met the eye. The

prosecutor responded in his rebuttal argument. And then the judge

gave the promised instruction:

Now in the closings [lawyers] try to, as I
say, recall [the evidence] for you and point
it out, highlight some of it for you. There
is no substitute, however, for your own
collective understanding and appreciation of
the evidence in the case.

To the extent lawyers say something and
you say, "Well, I'm not sure I heard it that
way," it's your collective understanding of
the evidence that controls your deliberations,
not what somebody else may think the evidence
was or was not. And so the lawyers' arguments
certainly do not supply anything additional or
different from what you have heard yourselves
in the course of the evidence.

Manor raised no objection to the instruction given, opting instead

to renew his motion for a mistrial keyed to his claim that

statement 2 was inappropriate. "That's denied," the judge ruled.

Manor made a post-trial motion for a new trial, again

calling statement 2 improper. Caisey did not say that he could

identify Manor "as the man he had chased out of the theater,"

Manor's lawyer wrote, but rather said that he had seen Manor "in

the parking lot on Tamworth Street." The judge denied that motion

also.

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 Challenging both rulings, Manor insists that the judge

should have ordered a mistrial below and that we should order a new

trial now. Because Manor's counsel timely objected to the

prosecutor's closing, see, e.g., United States v. Azubike, 504 F.3d

30, 39 n.9 (1st Cir. 2007), ordinary standards of review apply,

see, e.g., De La Paz-Rentas, 613 F.3d at 25. Exercising de novo

review, we consider whether the prosecutor's summation was improper

and, if so, whether it was harmful. See, e.g., De La Paz-Rentas,

613 F.3d at 25 n.2. But we review the judge's decision denying

Manor's mistrial and new-trial motions only for "manifest abuse of

discretion," United States v. Potter, 463 F.3d 9, 22 (1st Cir.

2006) (quotations omitted), a famously deferential standard that

recognizes that the district judge was best positioned to gauge

whether the episode was serious enough to warrant a new trial, see,

e.g., Arizona v. Washington, 434 U.S. 497, 514 (1978).3

As best we can tell, Manor's opening brief once again

only targeted statement 2: declaring that the "first half of the

above excerpt [i.e., statement 1] correctly state[d] the evidence,"

he contended that "the second half [i.e., statement 2] crosse[d]

the line." But Manor flip-flopped positions in his reply brief:

calling "the second portion" of the prosecutor's "remarks [i.e.,

3
There is a slight wrinkle that needs some smoothing out.
The district judge denied Manor's new-trial motion without comment,
which leaves us with two options: remand for an explanation or
tackle the issue directly "if a reasonable basis supporting the
order is made manifest on the record." United States v. Podolsky,
158 F.3d 12, 16 (1st Cir. 1998). We pick option two.
-12-
statement 2] offensive," he stressed that they were "vague enough"

for the defense to "counter[]" with "a strong closing" and instead

argued that the "real prejudice" emanated from the prosecutor's

"preface [i.e., statement 1]."

This is no small matter. By conceding in his reply that

his lawyer's closing neutralized whatever prejudice might have

resulted from statement 2, Manor undercut the very misconduct claim

that he had raised in his initial brief. Cf. United States v.

Gentles, 619 F.3d 75, 81 (1st Cir. 2010) (stressing that

"misconduct" alone is not enough for us to reverse a conviction –

there must be "prejudice," too); De La Paz-Rentas, 613 F.3d at 25

n.2. And by waiting until his reply brief to assail statement 1

directly (after not doing so below and specifically calling the

comment "correct[]" in his principal brief), Manor waived that line

of attack.4 See, e.g., United States v. Hall, 557 F.3d 15, 20 n.3

(1st Cir. 2009); United States v. Edgar, 82 F.3d 499, 510 (1st Cir.

1996); see also United States v. Slade, 980 F.2d 27, 30 (1st Cir.

1992) (adding that "[p]assing allusions are not adequate to

preserve an argument in either a trial or an appellate venue").

4
Even if we considered Manor's late argument forfeited
instead of waived, see United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002) (noting that forfeited issues are reviewable
for plain error but waived ones ordinarily are not), we would find
no plain error because (among other things) we see no error to
begin with. See generally United States v. McElroy, 587 F.3d 73,
78 (1st Cir. 2009) (discussing the components of the plain-error
test). We explain next why we see no error.
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 Even setting aside these problems, Manor's prosecutorial-

misconduct claims still misfire because the prosecutor did not

misstate the evidence. We start with statement 1.

Manor contends that reasonable jurors could not infer

that Caisey saw "Manor's face" twice in the theater. But Caisey's

testimony on this score was clear:

Q. At any point, Officer Caisey, going from
the third to the second floor or the second to
the first floor, did you get a view of the
individual's – what he was wearing, his face,
anything else?

A. At the bottom of the second floor escalator
he turned and looked up, which is – I believe
I yelled at him again to stop.

There is more:

Q. Were you able to get another view of the
suspect at the time that you left the actual
theater and the chase went outside?

A. As he was exiting through the glass doors
he looked back again.

There is more still:

Q. As you were chasing the suspect through the
movie theater, what was he wearing?

A. Brown three-quarter-length jacket, a white
long T-shirt and blue jeans.

Q. Did you see his face at some point when you
were chasing him through the theater?

A. When he was on the second level and I
yelled down to him to stop, he looked up.

Manor suggests that Caisey's last answer did not answer

the prosecutor's question and so counts for nothing. We think it

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was responsive. And that answer along with his others, including

the following, shows Caisey arrested the very person whose clothing

and face he had seen as they flew through the theater:

Q. Did you observe the suspect on Tamworth
before the arrest, what was he wearing?

A. Brown three-quarter-length jacket, white
long T-shirt and blue jeans.

Q. And when you arrested Mr. Manor on
Tamworth, what was he wearing?

A. Brown three-quarter-length jacket, white T-
shirt and blue jeans.

Consequently, the prosecutor had enough evidentiary support to make

statement 1 – which, ultimately, pours cold water on any statement

1-based prosecutorial-misconduct charge. See, e.g., United States

v. Henderson, 320 F.3d 92, 105 (1st Cir. 2003) (holding that

prosecutors can ask jurors to draw inferences unfavorable to the

defense); United States v. Martinez-Medina, 279 F.3d 105, 119 (1st

Cir. 2002) (similar).

Now on to statement 2. Convinced that Caisey testified

that he could only identify Manor in court based on what he had

seen in the parking lot on Tamworth, Manor contends that the

prosecutor stepped over the line when he said in closing that

Caisey had fingered Manor as the man who had fled the theater. The

record and caselaw, however, establish exactly the opposite.

Consider Caisey's testimony on direct examination:

Q. Officer Caisey, do you see in the courtroom
today the individual that you first chased
through the Loews Theater on January the 18th?
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 A. Yes.

Q. And subsequently arrested on Tamworth
Street?

A. Yes.

Q. Could you identify that individual please?

A. Yes. It's Mr. Darius Manor, sitting there
with the black colored shirt on.

We pause to repeat the obvious: Caisey did identify Manor at trial

as the man he had pursued from the theater. Unfazed, Manor argues

that Caisey's testimony on cross made this identification

worthless. Here are the snippets from Caisey's cross that Manor

pins his hopes on:

Q. Sir, when you were in the theater and Mr.
Adrien pointed out this person who he said he
had a gun, you wouldn't be able to identify
that person based upon what you saw there,
would you?

A. At that moment?

Q. Yeah.

A. Just by clothing.

Q. Just by the clothing. The same – really
your identification of Mr. Manor today is that
he's the person that was in the parking lot,
that you arrested, correct?

A. Yes.

. . .

Q. Sir you're able to identify Mr. Manor's
face today in the courtroom, based on your
observations that you made in the parking lot
that night, correct?

A. Yes.
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 Q. Not based upon the observations that you
made in the movie theater, correct?

A. Yes.

Manor suggests that by saying "identified" in summation – i.e.,

that Caisey had "identified that man that he saw going from the

second to the first floor, and he identified that man that he saw

leaving the first floor of the Loews movie theater, and he

identified him as the defendant, Darius Manor, here in court" – the

prosecutor intimated an identification based solely on Manor's

facial features. And, the argument continues, because Caisey did

not base his in-court identification of the fleeing theater-goer on

seeing the suspect's face (he based it on the culprit's attire),

the prosecutor mischaracterized the evidence. This argument cannot

stand up to close scrutiny, however.

The knockout blow is that the prosecutor never said in

closing that Caisey had identified Manor by his facial

characteristics. The prosecutor never came close to saying that –

he simply said that Caisey had singled out Manor as the person he

had chased through the theater. And that comment was firmly rooted

in uncontradicted testimony. Once again, the real gist of Caisey's

testimony is that the person he had collared on Tamworth was the

same person he had chased from the theater, and the defense's cross

did nothing to undercut that core point – a point Caisey drove home

on re-direct. So, according to Caisey, the theater-fleer and the

Tamworth-arrestee were one and the same – Manor. Of course, Caisey

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did see Manor's face in the theater and certainly saw it at the

parking lot, too. And, despite defense counsel's dogged

persistence, Caisey never so much as intimated a possible

suggestion that the person he had arrested was different from the

person he had chased. In any event, the prosecutor's comment fell

within the bounds of propriety. See, e.g., Martinez-Medina, 279

F.3d at 119 (finding no error in statements that "appear reasonably

supported by the record or are within the prerogative of the

prosecution to characterize the evidence presented at trial and

argue certain inferences to the jury").

To recap, even if we elide over the briefing problems

discussed above, Manor's misconduct challenge still fails because

we see nothing objectionable about the prosecutor's closing. And

because we see no misconduct, we need not address Manor's arguments

concerning how the summation supposedly prejudiced him. The bottom

line, then, is that the district judge did not abuse his discretion

in denying Manor's mistrial and new-trial motions.

CONCLUSION

For the reasons recounted above, we affirm Manor's

conviction.

So Ordered.

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