United States v. Taylor

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1381

UNITED STATES OF AMERICA,

Appellee,

v.

TERRENCE TAYLOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Selya, Circuit Judge.

Judith H. Mizner, by appointment of the court, for

appellant.
Kimberly S. Budd, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

the United States.

May 17, 1995

SELYA, Circuit Judge. A jury convicted defendant-
SELYA, Circuit Judge.

appellant Terrence Taylor on charges that he twice had robbed

federally insured banks, and had carried a firearm during and in

relation to the second robbery.1 Deterrating no reversible

error, we affirm.

I. BACKGROUND
I. BACKGROUND

Following accepted practice in criminal cases that

involve questions of evidentiary sufficiency, see, e.g., United

States v. Echeverri, 982 F.2d 675, 676 (1st Cir. 1993); United

States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991), we limn the

1The applicable statutes provide in pertinent part:

Whoever, by force and violence, or by
intimidation, takes, or attempts to take,
from the person or presence of another . . .
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
[federally insured] bank . . . [shall be
punished as provided by law].

18 U.S.C. 2113(a) (1988).

Whoever, in committing, or in attempting to
commit, any offense defined in [ 2113(a)],
assaults any person, or puts in jeopardy the
life of any person by the use of a dangerous
weapon or device, shall be [punished as
provided by law].

18 U.S.C. 2113(d) (1988).

Whoever, during and in relation to any crime
of violence . . . for which he may be
prosecuted in a court of the United States,
uses or carries a firearm, shall . . . be
[subjected to additional punishment].

18 U.S.C. 924(c)(1) (1988).

2

facts in the light most congenial to the government.

Appellant and Arnett Lynch, an inveterate bank robber,

often used drugs at a hangout in Boston, known euphemistically as

"the Spot." On several occasions appellant, emphasizing that he

"wanted to learn the ropes," expressed the hope that Lynch would

provide tutelage in how to rob banks.

The problem with wishes is that they sometimes come

true. Cf. Aesop, The Old Man and Death (circa 550 B.C.)

(predicting that "[w]e would often be sorry if our wishes were

gratified"). On January 29, 1992, appellant restated his

aspirations and mentioned the availability of transportation,

telling Lynch that his friend, Lucille Aulmond, had agreed (for

ten dollars) to drive him to the downtown area. Lynch and Taylor

entered Aulmond's automobile. During the trip, Lynch told

appellant that they were going to "do bizank" [a slang term for

"bank," according to Lynch's trial testimony] and "rob the 2T's"

[a reference to two tellers].

After dropping off a friend, Aulmond, on Lynch's

instructions, drove to downtown Boston and parked near the

intersection of Clarendon St. and Newbury St. Lynch walked to the

corner to check a branch office of Bank of Boston, but found that

it had closed for the day.2 When Lynch returned to the vicinity

of the parked car, appellant joined him on the sidewalk. The two

men then entered a nearby branch of United States Trust Company

2That bank had been robbed several days earlier by Lynch's
compatriot, William Corgain, who told Lynch that the bank was
easy pickings because only two tellers were on duty.

3

(UST).

Appellant remained hard by the entrance, watching both

the bank's interior and the street. Meanwhile, Lynch strode to

the center of the lobby. The manager, Elizabeth Nentwig, asked

Lynch if he needed assistance. Lynch proved capable of helping

himself; he drew a gun and advised Nentwig that a robbery had

begun. Lynch then grabbed a customer's briefcase, approached a

teller (Helen Huppoch), and demanded money. He received $2,748

from Huppoch and inserted it into the briefcase. Appellant

yelled, "come on, let's go," and the two men sprinted to

Aulmond's car.

Once inside the automobile, Aulmond asked what had

happened, and appellant responded: "I hit a guy in the face. I

punched a guy in the face." Lynch screamed at Aulmond to stop

talking and start driving. She complied. After Aulmond made a

wrong turn, the men grew impatient, bolted from her vehicle, and

completed their escape in a taxi. They then split the spoils,

but, there being scant honor among thieves, four men later mugged

Lynch and stole his share of the proceeds.

The next day, a man subsequently identified by

percipient witnesses as Taylor entered a BayBank branch located

at 285 Huntington Ave. in Boston. The man approached a teller's

station, shoved aside a customer, Alaina Gurski, and, threatening

to shoot Gurski, demanded that the teller, Raya Aruin, hand over

her money. The man held an object that both Aruin and Ellen

Clavin, a customer service representative working at a nearby

4

teller station, described at trial as a gun. The robber fled

after receiving $2,458 from Aruin.

In due season, a federal grand jury indicted appellant

for his role in the two robberies. The superseding indictment

contained three counts: count 1 charged Taylor and Lynch with

committing the UST robbery; count 2 charged Taylor with

committing the BayBank robbery; and count 3 charged Taylor with

carrying a firearm during and in relation to the BayBank robbery.

Lynch entered into a plea agreement and Taylor stood trial alone.

The jury found him guilty on all three counts. Following

imposition of sentence, Taylor filed this timely appeal.

Taylor's brief contains seven distinct assignments of

error. Six of these asseverations relating, vacuously, to the

joinder of counts arising from two separate robberies, the

sufficiency of the evidence, and the jury instructions do not

necessitate exegetic treatment. We dispose of these six claims

in a decurtate fashion (see infra Parts III - V). We then turn

to appellant's most vexing point: his complaint that the

prosecutor's closing argument contained improper and prejudicial

misstatements, including impermissible comments on his election

not to testify. See infra Part VI.

II. THE RAISE-OR-WAIVE RULE
II. THE RAISE-OR-WAIVE RULE

Because many of the assigned errors were not preserved

for appeal by timely objections, we pause first to discuss the

raise-or-waive rule. In general, the law ministers to the

vigilant, not to those who sleep upon perceptible rights.

5

Consequently, a litigant who deems himself aggrieved by what he

considers to be an improper occurrence in the course of trial or

an erroneous ruling by the trial judge ordinarily must object

then and there, or forfeit any right to complain at a later time.

The policy reasons behind the raise-or-waive rule are rock solid:

calling a looming error to the trial court's attention affords an

opportunity to correct the problem before irreparable harm

occurs. Then, too, the raise-or-waive rule prevents sandbagging;

for instance, it precludes a party from making a tactical

decision to refrain from objecting, and subsequently, should the

case turn sour, assigning error (or, even worse, planting an

error and nurturing the seed as insurance against an infelicitous

result). So viewed, the requirement that parties raise

contemporaneous objections to improper questions, comments, and

the like serves an important purpose in promoting "the balanced

and orderly functioning of our adversarial system of justice."

United States v. Griffin, 818 F.2d 97, 99-100 (1st. Cir.), cert.

denied, 484 U.S. 844 (1987); accord United States v. Holmquist,

36 F.3d 154, 168 (1st Cir. 1994), cert. denied, 115 S. Ct.

(1995).

Despite its strength and salience, the raise-or-waive

rule is not absolute. But, rescue missions are restricted to the

correction of "plain" errors. See United States v. Olano, 113 S.

Ct. 1770, 1776 (1993); United States v. Mejia-Lozano, 829 F.2d

268, 273 (1st Cir. 1987); Griffin, 818 F.2d at 100; see generally

Fed. R. Crim. P. 52(b).

6

The plain error doctrine concentrates on

"blockbusters," to the exclusion of "the ordinary backfires . . .

which may mar a trial record." Griffin, 818 F.2d at 100. Under

it, appellate courts will notice unpreserved errors only in the

most egregious circumstances. At a bare minimum, therefore,

bevues not seasonably brought to the attention of the trial court

must, in order to command appellate intervention, "affect[]

substantial rights." Fed. R. Crim. P. 52(b).

An unpreserved error is deemed plain (and, therefore,

to affect substantial rights) only if the reviewing court finds

that it skewed the fundamental fairness or basic integrity of the

proceeding below in some major respect. See Griffin, 818 F.2d at

100. As the Supreme Court itself has written, the plain error

doctrine applies in those circumstances in which, absent

appellate intervention, "a miscarriage of justice would otherwise

result." United States v. Frady, 456 U.S. 152, 163 n.14 (1982).

Given these parameters, it is not surprising that the

jurisprudence of plain error invests substantial discretion in

the court of appeals. See Olano, 113 S. Ct. at 1776 (observing

that "the decision to correct the forfeited error [rests] within

the sound discretion of the Court of Appeals"); United States v.

Whiting, 28 F.3d 1296, 1308 (1st Cir.) (same), cert. denied, 115

S. Ct. 378 (1994). Even when faced with an apparently plain

error, an appellate court "has authority to order correction, but

is not required to do so." Olano, 113 S. Ct. at 1778. For the

most part, this discretion should be exercised sparingly, and

7

should be reserved for the correction of those few errors that

"`seriously affect the fairness, integrity or public reputation

of the judicial proceedings.'" United States v. Young, 470 U.S.

1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157,

160 (1936)).

III. JOINDER AND SEVERANCE
III. JOINDER AND SEVERANCE

Appellant excoriates the government for bringing a

single indictment that joined a count relating to the UST robbery

with two counts relating to the BayBank robbery.3 In a similar

vein, he calumnizes the district court for refusing to sever the

ostensibly incompatible counts. The chastisement is unwarranted.

Although appellant now maintains that the counts were

improperly joined, he raises this objection for the first time on

appeal. Thus, we afford plain error review. See United States

v. Stackpole, 811 F.2d 689, 693 (1st Cir. 1987).

Separate offenses may be joined in the same indictment

if the charges are "of the same or similar character or are based

on the same act or transaction or on two or more acts or

transactions connected together or constituting parts of a common

scheme or plan." Fed. R. Crim. P. 8(a). In determining whether

counts are properly combined for trial, we historically have

considered whether the charges are laid under the same statute,

whether they involve similar victims, locations, or modes of

3Appellant does not argue that linking the firearms count
with the robbery counts formed a basis for a claim of misjoinder.
Accordingly, we deem any such argument waived. At any rate, the
firearms charge was inextricably intertwined with the second
robbery, and could hardly be separated from it.

8

operation, and the time frame in which the charged conduct

occurred. See, e.g., United States v. Chambers, 964 F.2d 1250-51

(1st Cir. 1992); United States v. Gray, 958 F.2d 9, 14 (1st Cir.

1992). Under the present circumstances, joining the three counts

lodged against appellant does not constitute plain error.

The two robberies involved the same type of victims

(federally insured banks). They were charged under the same

statute (18 U.S.C. 2113), took place in the same locale

(downtown Boston), and occurred in the same time frame

(successive days). Such similarities have routinely been found

to justify joinder. See, e.g., Chambers, 964 F.2d at 1250-51

(finding joinder proper when robberies all involved federally

insured banks in the greater Boston area and occurred within a

ten-week period); Gray, 958 F.2d at 14 (similar). Furthermore,

the evidence here suggests that the first robbery was, in effect,

a training mission for the second. Therefore, we do not think it

would be plain error to conclude that the two robberies were

parts of "a common scheme or plan" as that term is used in Rule

8(a).

Appellant's contention that the district court erred in

refusing to sever the robbery counts, while arguably preserved,4

also lacks force. Though the Criminal Rules empower federal

4It is unclear whether appellant's severance motion which,
in terms, did not request that the two bank robbery counts be
tried separately properly preserved the severance issue for
review. Because severance was not required in any event, we
assume for argument's sake that the issue was sufficiently raised
in the court below.

9

courts to grant relief from prejudicial joinder of counts in

criminal cases, see Fed. R. Crim. P. 14, severance decisions are

ordinarily won or lost in the trial court. We will overturn the

denial of a motion for severance only for a patent abuse of

discretion. See United States v. Pierro, 32 F.3d 611, 616 (1st

Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); United States v.

Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 502

U.S. 1079 (1992). This discretion applies to refusals to sever

counts as well as to refusals to separate defendants for purposes

of trial. See, e.g., Chambers, 964 F.2d at 1251. Establishing

an abuse of discretion usually entails a showing that improper or

prejudicial joinder likely "deprived the defendant of a fair

trial." United States v. Nason, 9 F.3d 155, 158 (1st Cir. 1993),

cert. denied, 114 S. Ct. 1331 (1994).

Appellant faces a high hurdle, given Chambers, Gray,

and other cases in which we have upheld the trial court's refusal

to sever counts involving multiple bank robberies. He strives to

distinguish these cases on the ground that they involved more

than two robberies, and, thus, yielded telltale patterns. This

argument fails for two reasons. First, common sense indicates

that the greater the number of robberies, the greater the danger

of prejudice that joinder poses. Second, there is no shortage of

sound precedent upholding the joint trial of two and only two

robbery counts in a single indictment. See, e.g., United States

v. L'Allier, 838 F.2d 234, 240-41 (7th Cir. 1988); United States

v. Shearer, 606 F.2d 819, 820 (8th Cir. 1979).

10

Apart from this curious slant on the number of

incidents, appellant offers no basis for suspecting undue

prejudice. His bare allegation that, if the jury were to believe

that he was involved in one bank robbery, then it might also

(improperly) be led to believe from that fact alone that he was

involved in the other, is simply not enough. This type of

spillover is standard fare whenever counts involving discrete

incidents are linked in a single indictment. We have repeatedly

held that such a garden variety side effect, without more, is

insufficient to require severance. See United States v. Boylan,

898 F.2d 230, 246 (1st Cir.) (collecting cases), cert. denied,

498 U.S. 849 (1990). Moreover, the case for prejudice is

especially weak in this instance because the district court's

jury instructions delineated the separateness of the three counts

and made it clear that the jury had to consider each charge on

its own merits.5

In sum, we find no plain error in the joinder of the

three counts contained in the superseding indictment, and no

misuse of discretion in the district court's eschewal of a

severance.

IV. SUFFICIENCY OF THE EVIDENCE
IV. SUFFICIENCY OF THE EVIDENCE

Appellant challenges the sufficiency of the evidence in

three respects. He says that the proof did not show (1) that he

5We also note that, even if the robberies had been charged
in separate indictments, the UST robbery would in all probability
have been admissible to prove preparation, plan, or knowledge
regarding the BayBank heist. See Fed. R. Evid. 404(b).

11

participated in the UST robbery, (2) that he committed the

BayBank robbery, and/or (3) that the perpetrator of the BayBank

robbery carried a real gun. In assessing these challenges, we

scrutinize the evidence in the light most compatible with the

verdict, resolve all credibility disputes in the verdict's favor,

and then reach a judgment about whether a rational jury could

find guilt beyond a reasonable doubt. See Echeverri, 982 F.2d at

677; Maraj, 947 F.2d at 522-23; Boylan, 898 F.2d at 243.

On the sufficiency issues, a further obstacle impedes

appellant's progress. Where, as here, challenges to evidentiary

sufficiency are unpreserved the defendant moved for judgment of

acquittal at the end of the prosecution's case, but then failed

to renew the motion after presenting evidence on his own behalf

a special variant of the raise-or-waive rule applies.6 In such

straitened circumstances, an appellate court should stay its hand

unless intervention is necessary to prevent a clear and gross

injustice. See United States v. McDowell, 918 F.2d 1004, 1010

(1st Cir. 1990); United States v. Cheung, 836 F.2d 729, 730 n.1

(1st Cir. 1988) (per curiam); United States v. Greenleaf, 692

F.2d 182, 185 (1st Cir. 1982), cert. denied, 460 U.S. 1069

(1983).

A. The Bank Robberies.
A. The Bank Robberies.

Appellant's first two sufficiency challenges can be

6Of course, if a defendant files a timely post-verdict
motion under Fed. R. Crim. P. 29(c), he may escape the
consequences of his earlier procedural default. See United

States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992). In

this case, appellant proffered no such motion.

12

dispatched with alacrity. The government prosecuted appellant

for the UST robbery on the theory that he aided and abetted

Lynch's felonious conduct. See 18 U.S.C. 2 (1988).7 The jury

convicted him on this basis. Its finding is amply supported.

Criminal intent is an important element of aiding and

abetting, see United States v. Tarr, 589 F.2d 55, 59 (1st Cir.

1978), and the supposed lack of any such intent lies at the heart

of appellant's challenge. Proof of this element demands a

showing that the defendant consciously shared the principal's

knowledge of the underlying criminal act, and intended to help

the principal. See United States v. Albert, 773 F.2d 386, 390

(1st Cir. 1985). We hasten to add, however, that this showing

may be made wholly on the basis of circumstantial evidence.

We believe that the jury could have reached such a

conclusion here. Viewed favorably to the government, the

evidence suggests that appellant sought Lynch's help in learning

to rob banks, furnished transportation so that the two men could

rob a bank, discussed the prospect en route, stood watch while

Lynch held up the teller, facilitated a joint escape, and shared

fifty-fifty in the purloined fruits. These facts firmly

underbrace the jury's finding that appellant aided and abetted

Lynch in the commission of the robbery.

Appellant's challenge to the sufficiency of the

7The statute provides that: "Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a
principal." 18 U.S.C. 2 (1988).

13

evidence that he committed the BayBank robbery is jejune. Two

eyewitnesses, Aruin and Clavin, identified him in open court as

the perpetrator. Although appellant denigrates their

reliability, the jury was plainly entitled to accept the

identification and to find that appellant committed the crime.

B. The Firearms Count.
B. The Firearms Count.

Appellant fares equally poorly in his final challenge

to evidentiary sufficiency. The statute of conviction, 18 U.S.C.

924(c), requires proof beyond a reasonable doubt that the

person perpetrating the predicate offense used a real gun. See,

e.g., United States v. Kirvan, 997 F.2d 963, 966 (1st Cir. 1993).

Appellant tells us that the government failed to prove this

essential fact. We do not agree.

This court recognized in Kirvan that, in order to

convict under section 924(c), the gun must be real, but it "need

not be proven to be loaded or operable . . . ." Id. While "a

toy or a replica will not do," the prosecution satisfies its

burden simply by showing that the gun is a gun. Id.

Furthermore, the government's proof on this point need not reach

a level of scientific certainty. On the contrary, lay opinion

testimony may be employed to propel a finding that an object is

in fact a real gun.8 See, e.g., Parker v. United States, 801

8Kirvan illustrates the point. There, we found it

sufficient to justify a conviction that two witnesses identified
the object as a gun, and that it made a loud noise when dropped
(consistent with it being very heavy). See Kirvan, 997 F.2d at

966-67.

14

F.2d 1382, 1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070

(1987); United States v. Jones, 907 F.2d 456, 460 (4th Cir.

1990), cert. denied, 498 U.S. 1029 (1991).

Silhouetted against this backdrop, appellant's

assignment of error pales into insignificance. Three

eyewitnesses to the BayBank robbery, each of whom observed the

object gripped by appellant at close range, testified that it was

a gun. This evidence is enough to allow a rational jury to find

that appellant carried a real gun. Accordingly, appellant's

conviction under section 924(c) worked no injustice, let alone a

clear and gross injustice.

V. THE JURY INSTRUCTIONS
V. THE JURY INSTRUCTIONS

When reviewing a district court's instructions to the

jury, we look at the charge as a whole, not in isolated

fragments. See Boylan, 898 F.2d at 244; Mejia-Lozano, 829 F.2d

at 272. If no timely objection has been advanced at trial, see

Fed. R. Crim. P. 30 (specifying when and how objections to the

charge must be taken), even an improper instruction rarely will

justify the reversal of a criminal conviction. See Henderson v.

Kibbe, 431 U.S. 145, 154 (1977); United States v. Weston, 960

F.2d 212, 216 (1st Cir. 1992). So it is here.

In this instance, the district court warned the jury to

take a long, hard look at accomplice testimony.9 In appellant's

9To be exact, the court told the jury that the testimony of
an accomplice was "to be scrutinized with particular care because
there is an interest that the person had in saying something that

15

current view, the instruction should have been more elaborate;

the court should have described the nature of the witness'

interest in assuaging the government, told the jurors that their

perscrutation of such testimony must be more searching than that

afforded to other testimony, and reminded them in the same breath

that the government had to prove its points beyond a reasonable

doubt. Putting aside the obvious question of whether appellant

would have been entitled to such instructions if duly requested,

the claimed deficiencies are precisely the type of fine-tuning

that is consigned to the scrap heap if not called to the district

court's attention in a timeous manner. No matter how critically

these alleged shortcomings in the court's charge are evaluated,

they cannot conceivably sink to the level of plain error.

The raise-or-waive rule also hobbles appellant's

remaining complaint about the jury instructions. After noting

that the evidence anent eyewitness identification was

"straightforward," the judge told the jury:

There are some four billion people in the
world and in the natural course of things one
would expect some of them may look alike.
But, on the other hand, an experience such as
these witnesses had, may, indeed, make their
observation so intense that it is reliable in
establishing identity beyond a reasonable
doubt.

Although appellant could be correct in arguing that, in

actuality, an intensely stressful situation is often less

accurately remembered than is a more tranquil one, he makes this

would be looked on with favor by the government."

16

point at the wrong time and to the wrong court. While the

challenged instruction may not be a textbook model, we discern no

plain error in it.

VI. THE SUMMATION
VI. THE SUMMATION

Having wended our way across flat, easily negotiated

territory, we now reach more problematic turf. Here, the

topography features a tripartite claim of error addressed to the

government's summation.

We start with certain fundamental verities. "A

prosecutor is permitted vigorous advocacy, so long as he does not

stray into forbidden terrain." Palmariello v. Superintendent of

M.C.I.-Norfolk, 873 F.2d 491, 494 (1st Cir.), cert. denied, 493

U.S. 865 (1989). Thus, prosecutors need not pull their punches;

they may indeed, they should present their cases to criminal

juries zealously. Forcefulness in the pursuit of justice is to

be admired rather than condemned. Yet, while a prosecutor "may

strike hard blows, he is not at liberty to strike foul ones."

Berger v. United States, 295 U.S. 78, 88 (1935). This maxim is

particularly relevant to closing arguments, for such arguments

come at an especially delicate point in the trial process and

represent the parties' last, best chance to marshal the evidence

and persuade the jurors of its import. See, e.g., United States

v. Manning, 23 F.3d 570, 575 (1st Cir. 1994).

Of course, a prosecutor's obligation to stay within the

pale does not exist in a vacuum. A defendant has a corresponding

obligation to protect his own interests. When a defendant

17

defaults on this obligation by failing to make a contemporaneous

objection to questionable comments in the prosecution's closing

argument, the raise-or-waive rule applies. Afterthought claims

of improprieties allegedly occurring during the summation are

reviewed under the notably ungenerous plain error standard.

Consequently, reversal is justified only if the illegitimate

portion of the closing argument "so poisoned the well that the

trial's outcome was likely affected." Mejia-Lozano, 829 F.2d at

274.

In determining whether a prosecutor's miscues in final

argument require reversal under this hard-to-satisfy standard,

this court considers all the attendant circumstances, paying

special heed to factors such as (1) the extent to which the

prosecutor's conduct is recurrent and/or deliberate; (2) the

extent to which the trial judge's instructions insulated the jury

against, or palliated, the possibility of unfair prejudice; and

(3) the overall strength of the prosecution's case, with

particular regard to the likelihood that any prejudice might have

affected the jury's judgment. See id.; see also United States v.

Giry, 818 F.2d 120, 133 (1st Cir.), cert. denied, 484 U.S. 855

(1987). Using these criteria, we conclude that none of

appellant's claimed errors requires reversal.

A. Matters Dehors the Record.
A. Matters Dehors the Record.

Appellant maintains that, during the summation, the

prosecutor referred to matters not in evidence. Specifically,

the prosecutor gave a less than completely accurate account of

18

the prefatory conversation between appellant and Lynch on January

29. Appellant greeted Lynch, so the prosecutor said, by

imploring: "Maestro, show me how it's done." The prosecutor

added: "We know that Maestro is Mr. Lynch's nickname. Why?

Because he plays the organ in his father's church." Warming to

this theme, the prosecutor reiterated the point. He told the

jury that, as the two men walked into the UST branch, appellant

again said: "Maestro . . . show me the ropes."

There was, in fact, no evidence of Lynch's nickname and

no evidence that appellant made a request to be shown the ropes

as the robbers entered the bank. Withal, there was no

contemporaneous objection, and these canards scarcely justify

reversal under the plain error doctrine. Given that Lynch

admitted to his vocation as a bank robber, his nickname was

wholly irrelevant to the case. Moreover, the prosecutor gave an

innocent explanation of the moniker and appellant's own lawyer

twice referred to Lynch in front of the jury as "Maestro." As to

the second misstatement, there was evidence that appellant made

the request ("show me the ropes") previously on the day of the

robbery and on at least one earlier occasion. In other words,

the substance of the prosecutor's statement was true (although

the timing was awry).

On whole-record review, we conclude without serious

question that the allusions to matters dehors the record were

benign. Reversal is totally unwarranted.

B. The Prosecutor's Rebuttal.
B. The Prosecutor's Rebuttal.

19

Next, appellant assails the prosecutor's rebuttal,

which, he says, contained a minimum of three peccadilloes,

namely, (1) an implication that appellant had alerted the four

people who mugged Lynch and stole his booty, (2) a suggestion

that Lynch should be believed because he suffered from sickle-

cell anemia and had tested positive for HIV, and (3) an

intimation that Clavin, during her testimony, lowered her voice

"out of fear."

These accusations do not withstand scrutiny. The

prosecutor made the first of the cited comments without objection

and in direct response to defense counsel's argument that Lynch

had turned against Taylor because the latter did not come to his

aid during the mugging. We have previously expressed our

reluctance to find plain error when a prosecutor's remarks are

made to rebut specific statements by defense counsel, and are

proportionate to that end. See Whiting, 28 F.3d at 1302; Mejia-

Lozano, 829 F.2d at 274. Here, our reluctance ripens into

outright unwillingness. Similarly, the prosecutor's remarks

about Lynch's health drew no contemporaneous objection. Those

remarks were obviously designed to rebut the defense argument

that Lynch was hoping to earn a reduced sentence by testifying

against Taylor. The statement recounted facts in evidence, and

did not constitute either vouching or an improper appeal to the

jury's sympathies. Finally, the remark about Clavin's demeanor

was not out of line. The jury saw and heard her testimony, and

20

could determine for itself her state of mind.10 See, e.g.,

United States v. Mount, 896 F.2d 612, 625 (1st Cir. 1990)

("Although it is the jury's job to draw inferences, there is

nothing improper in the Government's suggesting which inferences

should be drawn.").

C. The Fifth Amendment Issue.
C. The Fifth Amendment Issue.

The capstone of appellant's asseverational array is his

anguished assertion that the prosecutor's summation contained

comments on appellant's election not to testify, in derogation of

rights secured to appellant under the Fifth Amendment. We quote

the disputed portion of the prosecutor's summation:

Is there any evidence that Mr. Taylor
said, "Oh, my God, I've been misled. This is
not going to be money from his father. I've
got to get out of here. I've got to warn my
friend, Lucille Aulmond. She gave me rides
in the past, but this is something
different." He stayed true in his anchor
position.
Mr. Lynch went up to the window,
demanded money. He was very unafraid. Mr.
Lynch demanded money that wasn't his. Did
Mr. Taylor say: Oh, my God, I'm going to
leave this place and warn my friend, Lucille
Aulmond? No. He stayed true to that anchor
position. And, in fact, he yelled, "Come on,
let's go."
Lynch points to the door. Mr. Taylor
waits there and does he say: Look, just
because I'm here, I'm sorry what happened. I
didn't know it was going to happen. Is
everybody all right? I know who was
responsible.

10While defense counsel did not interject a contemporaneous
objection during the prosecutor's rebuttal, he did bring this
remark to the court's attention at a sidebar conference
immediately following the summations. The judge refused to
resurrect the matter, stating: "I will leave it. It is up to
the jury to make that determination." We agree.

21

He left with the money. . . . When he
got back to the car, you heard Lucille
Aulmond, and she said, "What happened?" Does
he say: Lucille, he robbed a bank; I didn't
know it was going to happen; I'm sorry. "I
hit a man in the face" was what you got,
instead. Not the truth, just another part of
the lie . . . .
And they drive two blocks away. Mr.
Lynch gets out of the car. Does Terrence
Taylor stay with his friend? "Lucille, I'm
involved in this. You shouldn't have been
involved. I didn't even know about it.
Let's go to the police and clear this whole
thing up." He went with the money. Her job
was done.
He took the money. . . . Did he take
his share of the money and say, "Look, this
is not my money; there it is, police, look
for bait bills; I'm turning back money; I
have nothing to do with this."

It is a bedrock principle that a prosecutor may not

comment on a defendant's exercise of the right to remain silent.

See United States v. Robinson, 485 U.S. 25, 30 (1988); Griffin v.

California, 380 U.S. 609, 615 (1965); United States v. Sepulveda,

15 F.3d 1161, 1186 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714

(1994). Even an indirect or inferential comment on a defendant's

silence can transgress the Fifth Amendment. See, e.g., United

States v. Hardy, 37 F.3d 753, 757 (1st Cir. 1994); United States

v. Lavoie, 721 F.2d 407, 408 (1st Cir. 1983), cert. denied, 465

U.S. 1069 (1984).

Because "[t]here is no bright line marking the

precipice between a legitimate assessment of defense witnesses

and an impermissible encroachment upon the accused's silence,"

Sepulveda, 15 F.3d at 1186, prosecutors must tread carefully on

this terrain. A prosecutor who "attempts to define exactly the

22

edge of the precipice approaches at his peril." Rodriguez-

Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969). In

evaluating whether a prosecutor has gone too far, we must ask

whether, in the particular circumstances of a given case, the

language used by the prosecutor appears to have been designed to

yield the improper inference, or, if not so designed, whether it

was such that jurors would probably interpret it as a commentary

on the accused's failure to take the witness stand. See United

States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987), cert.

denied, 482 U.S. 929 (1987); United States v. Monaghan, 741 F.2d

1434, 1437 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985).

Notwithstanding these constraints, no Fifth Amendment

violation inheres in comments on a defendant's decision to remain

silent in a context outside the legal process. For example, in

Lema v. United States, 987 F.2d 48 (1st Cir. 1993), we found

nothing amiss in a prosecutor's observation that the defendant

remained silent during two drug transactions. The comment did

not transgress the Fifth Amendment because it referred to

defendant's silence at the scene of the crime rather than at

trial. See id. at 56; see also United States v. Ortiz, 966 F.2d

707, 714 (1st Cir. 1992) (holding that defendant's silent

presence at site of drug transaction "patently implied

participation"), cert. denied, 113 S. Ct. 1005 (1993).

In this case, the government insists that the

challenged statements referred to appellant's silence before,

during, and after the UST robbery, not to his silence at trial.

23

When a prosecutor's comments, fairly viewed, are susceptible to

two plausible meanings, one of which is unexceptionable and one

of which is forbidden, context frequently determines meaning.

See Sepulveda, 15 F.3d at 1187; United States v. Lilly, 983 F.2d

300, 307 (1st Cir. 1992). Where feasible, a reviewing court

should construe ambiguity in favor of a proper meaning:

[A] court should not lightly infer that a
prosecutor intends an ambiguous remark to
have its most damaging meaning or that a
jury, sitting through a lengthy exhortation,
will draw that meaning from the plethora of
less damaging interpretations.

Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974); accord

Lilly, 983 F.2d at 307. This rule of construction has heightened

desirability in the absence of a contemporaneous objection for,

when the target of the comments does not interrupt and register a

timely objection, it seems especially appropriate to "give the

arguer the benefit of every plausible interpretation of her

words." Sepulveda, 15 F.3d at 1187. We are especially reluctant

to "fish in the pool of ambiguity" when, as now, the complaining

party failed to bring a dubious comment, easily corrected on

proper notice, to the immediate attention of the trial court.

Id. at 1188.

Evaluated against this benchmark, we do not believe

that the quoted remarks trespassed on appellant's Fifth Amendment

rights. While a suspicious mind could construe what was said as

a comment on appellant's decision not to testify, the

prosecutor's words are more plausibly interpreted as a comment on

appellant's silence during the commission of the crime. After

24

all, Taylor had labored to develop a defense based on his lack of

foreknowledge concerning Lynch's felonious intent. Appellant's

silence throughout the commission of the crime tends to undermine

this defense, and the prosecutor's comments were most likely a

clumsy effort to seize upon this weakness.

We will not paint the lily. Given the absence of a

contemporaneous objection, we must cede to the government the

benefit of a legitimate, plausible interpretation of the

prosecutor's words. On this basis, we hold that the remarks in

question did not amount to a constitutionally prohibited comment

on appellant's declination to testify at trial.

We add that, even if the prosecutor's comments crossed

the line, our traditional three-part analysis suggests that

reversal would be unwarranted. First, although the comments were

repeated several times, there is no reason to conclude that the

prosecutor intentionally drew attention to appellant's silence at

trial. Second, despite the lack of an objection, the district

judge instructed the jury with painstaking care regarding the

government's burden of proof, appellant's presumed innocence, and

his constitutional right to refrain from testifying. Among other

things, the judge admonished that "no adverse inference is to be

drawn from his exercise of his election not to take the stand."

We are confident that this explicit instruction was sufficient to

combat any impermissible inference that might have been drawn

from the prosecutor's statements.

Last but far from least, see Mejia-Lozano, 829 F.2d

25

at 274 (explaining that "the strength of the government's case is

an important factor in considering the likely effect of

borderline rhetoric") the possibility that the comments, even

if misconstrued, affected appellant's substantial rights is

diminished by the potency of the government's proof. Lynch's

testimony was unequivocal and corroborated on many points.

Moreover, several witnesses to the UST robbery noted appellant's

presence and described his behavior in a way that strongly

suggested his complicity in the crime. In view of the

substantial evidence against appellant, we find it highly

unlikely that the jury could have been swayed by the prosecutor's

amphibolous remarks.11

VII. CONCLUSION
VII. CONCLUSION

We need go no further. For aught that appears,

appellant was fairly tried and justly convicted. The judgment

below is, therefore,

Affirmed.
Affirmed.

11If this were not enough, the general principles governing
plain error review caution us in this case against exercising our
discretion in Taylor's behalf. At worst, the prosecutor's
comments were veiled and any impermissible implication arising
out of them was attenuated. We do not believe that this line of
argument could have "seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings." Olano, 113 S. Ct.

at 1776 (internal quotation marks omitted).

26