March 2, 1993
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 92-2123
UNITED STATES,
Appellee,
v.
BARRY L. WEINSTEIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Joseph J. Balliro with whom Balliro, Mondano & Balliro was on
brief for appellant.
Despena Fillios Billings, Assistant United States Attorney, with
whom A. John Pappalardo, United States Attorney, was on brief for
appellee.
STAHL, Circuit Judge. In this appeal, defendant
Barry L. Weinstein challenges his conviction for knowing
receipt of stolen property, and for conspiracy to commit that
crime. Specifically, defendant argues that his trial was
unfairly prejudiced by certain comments made by the
government in its closing argument, and by the district
court's charge to the jury. Finding the government's
comments to be harmless error, and the jury instructions
proper, we affirm.
I.
FACTUAL BACKGROUND
The government's evidence in this case shows that
in February of 1991, Michael Flatt, accompanied by a friend,
broke into a safe in a private home in Dallas, Texas, and
stole approximately 26 items of jewelry. The purloined items
had a total resale value between $85,000 and $134,000. Flatt
packaged the pieces and sent them via Federal Express to his
home in Boston, Massachusetts. Upon his return to Boston,
Flatt sought to have some of the jewelry appraised. He took
three examples of the loot to "Roy K. Eyges, Inc.," a jewelry
store in Boston, where he was introduced to defendant, a
jewelry appraiser employed at the store.
Flatt told defendant that he had inherited the
jewelry and that he was interested in selling it. In the
privacy of defendant's office, defendant indicated that he
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was interested in helping Flatt sell the jewelry, but that he
wanted to do so independently of his employer, so that he
could obtain a commission on the sale. At this first
meeting, defendant suggested that he and Flatt transact their
business in cash.
The following weekend, defendant met with Flatt,
and was given several pieces of the jewelry to sell. Some
days later, by arrangement, the two met in a public parking
garage, where defendant gave Flatt a paper bag containing
between $7,000 and $9,000 in cash obtained from the sale of
unspecified pieces of the stolen jewelry.
At this meeting, defendant asked about the source
of the jewelry. Flatt advised defendant that he had stolen
the jewelry from Texas. Defendant said that he had suspected
that the jewelry was stolen. He also told Flatt that he had
checked to see if the jewelry had been reported stolen, and
that it had not been so reported.
Several days later, again by arrangement, defendant
and Flatt met in defendant's car on a designated street in
Boston. Defendant informed Flatt that defendant and a
partner, co-defendant Eric Bleiler,1 were attempting to
raise money in order to purchase some of the pieces outright
from Flatt. At that meeting, Flatt gave defendant
1. At trial, Bleiler was acquitted of all charges against
him.
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approximately ten additional pieces of stolen jewelry to
sell.
In the course of subsequent phone conversations,
defendant told Flatt that his partner Bleiler had more cash
for Flatt from the sale of some of the jewelry, and that
defendant could pick up the cash at Bleiler's shop in Newton,
Massachusetts, outside of Boston. Flatt went to Bleiler's
shop and was given a paper bag containing approximately
$9,000 in cash.
Shortly after his visit to Bleiler's shop, Flatt
left Boston to live in San Francisco. Defendant notified
Flatt by phone that he was interested in doing additional
business with Flatt, and that he had $15,000 more in cash for
Flatt from the sale of additional pieces of the stolen
jewelry. Flatt requested that defendant send him the cash in
San Francisco via Federal Express. Before receiving these
last proceeds from the sale of the purloined jewelry, Flatt
was arrested in San Francisco in connection with the Dallas
burglary.2 After his arrest, Flatt signed a written consent
form allowing the San Francisco Police Department to open his
mail. On April 24, 1991, the San Francisco Police
intercepted and opened a package addressed to Flatt from
defendant which contained $15,100 in cash.
2. In separate proceedings, Flatt was convicted on state
charges of burglary and on federal charges of interstate
transportation of stolen property.
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Shortly thereafter, defendant was arrested and
charged with one count of knowing receipt of stolen property
in violation of 18 U.S.C. 2315,3 and one count of
conspiracy to commit that crime in violation of 18 U.S.C.
371.4 After a five-day jury trial, defendant was convicted
on both counts. From these convictions, defendant now
appeals.
II.
DISCUSSION
On appeal, defendant argues that certain of the
government's comments during closing argument were unfairly
prejudicial. Defendant also challenges one of the court's
instructions to the jury. We address each argument in turn.
3. 18 U.S.C. 2315 states in relevant part:
Whoever receives, possesses, conceals, stores,
barters, sells, or disposes of any goods, wares, or
merchandise, securities, or money of the value of
$5,000 or more . . . which have crossed a State or
United States boundary after being stolen,
unlawfully converted, or taken, knowing the same to
have been stolen, unlawfully converted, or taken .
. . [s]hall be fined not more than $10,000 or
imprisoned not more than ten years, or both.
4. 18 U.S.C. 371 states in relevant part:
If two or more persons conspire . . . to commit any
offense against the United States . . . and one or
more of such persons do any act to effect the
object of the conspiracy, each shall be fined not
more than $10,000 or imprisoned not more than five
years, or both.
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A. Government's Comments During Closing Argument
The following colloquy took place during the
government's closing argument:
Government: [Defendants] are not, as
[defense counsel] argued to you in his
opening, sitting the[re] clothed in a
mant[le] of innocence and I am asking you
--
The Court: Oh, yes, they are.
Defendant's counsel: Objection.
Co-defendant's counsel: Objection.
The Court: They are indeed clothed in a
mant[le] of innocence. They stand before
you now -- sit before you now absolutely
and totally innocent. They remain
innocent until the government proves them
guilty beyond a reasonable doubt.
Defendant argues that the government's statement had the
effect of denying him the presumption of innocence, and that
the comment was sufficiently prejudicial to warrant a new
trial. We disagree.
The prejudicial statements of a prosecutor at trial
are subject to a harmless error analysis. United States v.
Hasting, 461 U.S. 499, 507-509 (1983); United States v.
Brown, 938 F.2d 1482, 1489 (1st Cir.), cert. denied, 112 S.
Ct. 611 (1991). Convictions will therefore not be set aside
"for small errors or defects that have little, if any,
likelihood of having changed the result of the trial.'"
Hasting, 461 U.S. at 508 (quoting Chapman v. California, 386
U.S. 18, 22 (1967)).
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In determining whether prosecutorial misconduct
rises above the level of harmless error, "`we consider the
severity of the misconduct, whether it was deliberate or
accidental, the likely effect of the curative instruction,
and the strength of the evidence against appellant[].'"
Brown, 938 F.2d at 1489 (quoting United States v. Cox, 752
F.2d 741, 745 (1st Cir. 1985)).
Having carefully considered all of the factors set
forth in Brown, it is our opinion that the likely effect of
the district court's strong, correct and contemporaneous
curative instruction, when combined with the court's final
charge,5 was that the jury remained properly apprised of the
presumption of innocence, despite the government's
improvident statement. Accordingly, we rule that the
prosecutor's comment, although improper, was harmless error.
See, e.g., United States v. Lilly, No. 91-2192, slip op. at
5. Along with its sua sponte correction, which literally cut
off the government in mid-sentence, the district court also
gave the following instruction in its final charge to the
jury:
Now, we have talked a lot about the
presumption of innocence. It is a rule
of law in this country, indeed, it is a
constitutional rule, that a defendant is
presumed to be innocent. And that means,
very simply that the defendant is
innocent. He is innocent until the
government proves him guilty. And
because he is innocent, he does not have
to prove his innocence. He has no
obligation to offer any evidence, he has
no obligation to offer any explanation,
hehas no obligation to take the stand.
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17 (1st Cir. 1992) (indicating that generally "a strong
message from the bench, delivered promptly, is a satisfactory
antidote to the potentially poisonous effects of an ambiguous
comment or a remark that sails too close to the wind");
United States v. Maccini, 721 F.2d 840, 847 (1st Cir. 1983)
(holding that district court's "strong curative instructions
were sufficient to correct" the effect of government's
improper statements).6
6. Defendant also challenges two implications allegedly made
by the government during its rebuttal to defendant's closing
argument. According to defendant, the government unfairly
implied that the testimony of law enforcement officials is
generally more credible than the testimony of laypersons, and
that defendant's actions had violated a Boston ordinance
which requires that large cash transactions be reported to
the Boston Police.
Even if the government's comments carried these
implications, defendant has failed to argue, let alone
demonstrate, that either comment "`changed the result of the
trial.'" Hasting, 461 U.S. at 508 (quoting Chapman, 386 U.S.
at 22). As defendant himself concedes, the government's case
against him consisted primarily of Flatt's testimony.
Neither police credibility nor the Boston ordinance were
significant issues in the case against defendant.
Moreover, the district court directly addressed
defendant's concerns regarding the statements. With regard
to the testimony of law enforcement officers, the district
court told the jury: "You should judge [law enforcement
officials] in exactly the same way as you judge everybody
else. Just because they work for a law enforcement agency,
doesn't make them more believable nor less believable than
anybody else." With regard to the Boston ordinance, the
district court instructed the jury that "neither [defendant]
nor [co-defendant] Bleiler do business in Boston. So, there
is no evidence one way or the other that they have any
obligation to file a police report." We find these
instructions more than adequate to dispel any possible
prejudice from the government's statements. See, e.g.,
Lilly, slip op. at 17 (strong corrective instructions
generally sufficient to cure improper prosecutorial
comments). To the extent, therefore, that these statements
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B. Jury Instructions
Defendant also challenges the following jury
instruction regarding the process of evaluating witness
credibility:
Now, th[e] process [of evaluating witness
credibility] is, as used here, no
different from what you do all the time,
every day in your lives. When somebody
tells you a story, you make a judgment
whether you believe what the person told
you. You probably do it almost
instinctively. And I ask you to make the
same judgment, precisely the same kind of
judgment, as you review the testimony of
each of the witnesses.
Relying on United States v. Araujo, 539 F.2d 287, 290-91 (2d
Cir.), cert. denied, 429 U.S. 983 (1976)), defendant argues
that this instruction was prejudicial because it permitted
jurors to rely improperly on their "instincts" rather than
their common sense in assessing witness credibility. We find
defendant's argument bordering on the frivolous.
The district court in Araujo, referring to
particular testimony or evidence at trial, instructed the
jury that human beings have a tendency or a "natural
were improper, they too were harmless error.
Similarly, we are unpersuaded by defendant's argument
that the two comments had the cumulative effect of rendering
the trial unfair. Given that the comments were unrelated to
each other, and that each comment standing alone was at most
harmless error, there simply is no basis for concluding that
the comments taken together influenced the outcome of
defendant's trial in any way.
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instinct" to lie when confronted with an accusation. The
Second Circuit disapproved of the comment, stating that "it
would be preferable if the trial judge avoided interjecting
his[/her] own personal views of human nature into the
charge." Id. at 291.
Plainly, the instant case is very different from
Araujo. In using the term "instinctively" in the instant
case, the district court, in the context of a complete and
correct jury instruction on assessing witness credibility,
merely emphasized to jury members that their every-day manner
of assessing credibility could be employed in their jury
deliberations. Far from encouraging jury members to cast
aside their common sense, the instruction tended to encourage
its use. As such, the instruction does not provide a basis
for granting defendant a new trial.
III.
CONCLUSION
For the foregoing reasons, the judgment of the
district court is affirmed.
Affirmed.
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