July 24, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1549
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCIS J. PROCOPIO,
Defendant, Appellant.
No. 95-1550
UNITED STATES OF AMERICA,
Appellee,
v.
VINCENT A. LATTANZIO,
Defendant, Appellant.
No. 95-1551
UNITED STATES OF AMERICA,
Appellee,
v.
BERNARD KILEY,
Defendant, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on July 9, 1996, is amended as
follows:
On page 29, paragraph 2, line 8, insert footnote 3 after the
words " . . . a fair trial." to read:
"In light of our criticism of the rebuttal argument, we
think it fair to note that the assistant United States
Attorney who argued this case on appeal was not the
prosecutor who presented the rebuttal argument at trial."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1549
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCIS J. PROCOPIO,
Defendant, Appellant.
No. 95-1550
UNITED STATES OF AMERICA,
Appellee,
v.
VINCENT A. LATTANZIO,
Defendant, Appellant.
No. 95-1551
UNITED STATES OF AMERICA,
Appellee,
v.
BERNARD KILEY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Richard J. Shea, by Appointment of the Court, for appellant
Francis J. Procopio.
Kevin G. Murphy, by Appointment of the Court, with whom Dusel,
Murphy, Fennell, Liquori & Powers was on brief for appellant Vincent
A. Lattanzio.
Stewart T. Graham, Jr., by Appointment of the Court, with whom
Graham & Graham was on brief for appellant Bernard Kiley.
C. Jeffrey Kinder, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
July 9, 1996
BOUDIN, Circuit Judge. On April 9, 1991, three armed,
masked men stole $1.2 million in cash about to be loaded into
an armored car belonging to Berkshire Armored Car Services,
Inc. ("Berkshire"). The crime occurred in Pittsfield,
Massachusetts. On June 10, 1993, the government indicted
Bernard J. Kiley, Vincent A. Lattanzio, Donald J. Abbott,
Francis J. Procopio and Charles R. Gattuso. The government
believed that the first three men had committed the robbery
and that the other two had aided the venture.
The indictment charged all five men with conspiracy to
interfere with, and interference with, commerce by means of
robbery, 18 U.S.C. 1951, and with robbery of bank funds, 18
U.S.C. 2113(a). Kiley and Procopio were also charged with
money laundering, 18 U.S.C. 1956(a)(1)(B)(i), (ii). A
superseding indictment was handed down on September 30, 1993,
adding firearms counts against Lattanzio and Kiley, 18 U.S.C.
922(g)(1) & 924(c)(1), (2), as well as a forfeiture count
against Kiley, 18 U.S.C. 982.
In due course, Gattuso pled guilty to conspiracy and
entered into a cooperation agreement with the government.
Abbott was murdered prior to trial. The district court
severed the firearms charges from the other counts; the three
remaining defendants (Kiley, Lattanzio and Procopio) were
convicted on all other counts after a 14-day trial beginning
on October 6, 1994. A second jury convicted Kiley and
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Lattanzio on the firearm counts on December 14, 1994. All
three defendants appealed, praying for new trials on all
counts.
In briefs and oral arguments by able counsel, Kiley,
Lattanzio and Procopio raise three major challenges to their
convictions. First, claiming that various government
searches violated the Fourth Amendment, they contend that the
district court erred in failing to suppress evidence.
Second, defendants argue that the court erred in admitting
evidence of possible preparations for a later robbery.
Finally, defendants urge that remarks by one of the
prosecutors constituted misconduct warranting a new trial.
We affirm.
I. BACKGROUND
Because there is no challenge to the adequacy of the
evidence, we do not describe what the jury would have been
entitled to find, viewing the evidence in the light most
favorable to the government. Instead, we offer a neutral
description of the evidence at trial to illuminate the
defendants' claims of error and to provide a background
against which to judge defendants' claims of prejudice.
Facts relevant to the suppression motions are set forth
separately in the discussion of those issues.
The government's case began with the testimony of the
two Berkshire guards, Allan Mongeon and James Cota. They
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testified that three men, armed and masked, accosted them
while they were loading bags of money into a Berkshire
armored truck in Pittsfield on April 9, 1991. The door of
the loading bay was open, in violation of regular procedures,
because the truck inside the bay was loaded with pallets, and
a second truck, which the guards decided to use, was parked
directly outside the bay.
Although the guards offered little physical description
of the robbers, they said that one of the three men had been
older and shorter than the other two and that he had a salt-
and-pepper mustache; a false mustache matching that
description was later recovered from Kiley's home. Mongeon
was able to get a look at the right front portion of the
robbers' get-away car; he described it at the time as a tan
sedan of late-70s vintage, probably a Plymouth Volare; he
later identified as the car he had seen a tan-and-brown 1979
Buick Regal, which had belonged to Procopio at the time of
the robbery.
In addition, Mongeon testified that one of the robbers
had called out "Chuck, what are you doing." None of the
individuals claimed by the government to have carried out the
robbery--Kiley, Lattanzio, and Abbott--was named Chuck, but
Gattuso was sometimes referred to by that name. However, the
government established that Gattuso was well known to Mongeon
(Gattuso having been fired by Berkshire two weeks before the
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robbery); the point was to suggest that Mongeon would have
recognized Gattuso's voice had he been present.
Gattuso then testified. He said that Kiley had
approached him early in March 1991, at the suggestion of
Gattuso's brother Dino, for help in planning the Berkshire
robbery. Gattuso later decided to join, bringing his close
friend Procopio to a second meeting. At a final meeting,
Gattuso gave Kiley details of Berkshire's operations;
Procopio agreed to provide and dispose of the getaway
vehicles. Kiley told Gattuso that he would carry out the
robbery along with two unnamed confederates. Procopio later
told Gattuso that one of the participants in the robbery was
named "Vinnie."
Charles Parise, an unindicted co-conspirator and friend
of Gattuso's, testified that Procopio brought a car--the same
Buick Regal identified by Mongeon as the get-away car--to
Parise's garage at his home in Pittsfield on the night of the
robbery. Parise said that he was forced to hide the car--
Procopio threatened him and his family--and to change its
tires, and was later paid $8,000 for his trouble. This money
he returned to the government. The defense cast doubt on
Parise's credibility by pointing to statements by Parise's
girlfriend suggesting that he had received more than $8,000.
The next several days of the trial were devoted to the
government's painstaking presentation of evidence of cash
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transactions, totaling nearly $330,000, by the defendants and
their families in the months immediately following the
robbery. For example, Kiley and Lattanzio travelled together
to Jamaica, also treating several friends to the trip. The
defendants' lavish spending occurred in spite of the fact
that Kiley had no visible means of support, Procopio had been
insolvent prior to the robbery, and Lattanzio had never
declared over $15,000 of income in any one year.
In addition, the government presented evidence of guns,
a state police uniform, handcuffs, and a radio scanner that
were seized from Kiley's apartment at 81 Intervale Street at
the time of his arrest in June 1993; there was evidence that
Lattanzio, whose father owned the building, was also spending
time in the apartment, and that two of the guns seized there
belonged to Lattanzio. Finally, the government played tapes
of telephone conversations among Kiley and Lattanzio (who
were in custody) and Procopio (out on bail) in which they
discussed getting "back into business" and holding "another
party" to which no "children" would be invited.
The defendants called a total of five witnesses, who
testified to alternative sources for the funds that the
defendants spent following the robbery. The defense claimed
Kiley had funds from prior crimes; that Procopio had money
from legitimate and illegitimate businesses that he had been
hiding from the IRS and his ex-wife; and that John Lattanzio,
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Sr., Vincent's father and the depositor of much of the cash
in question, had gambling winnings, again not reported to the
IRS. In addition, the defense tried to establish that Kiley
had been in Florida at the time Gattuso alleged some of their
meetings had taken place.
II. SEARCH AND SEIZURE
Defendants challenge the district court's denial of
several suppression motions before trial. Procopio objects
to a search of his residence (in 1992); Kiley to searches of
his residence (in 1992 and 1993) and to searches of his
papers, recovered from a stolen safe (in 1991) and a
briefcase seized after a traffic stop (in 1992). Lattanzio
joins in the challenge to the admission of evidence seized
from Kiley's Intervale Street apartment in 1993.
June 1992 search of Kiley's and Procopio's properties.
In June 1992, Agent Howe of the IRS prepared an affidavit in
support of a warrant to search four Pittsfield properties:
*37 Taubert Ave. (Kiley's residence)
*124 Crane Ave (Gattuso's residence)
*56 South Onota St. (Procopio's residence)
*483 West Housatonic St. (Procopio's garage)
Howe's affidavit set out tips from four confidential
informants. A first confidential informant (CI-1) had said
that Kiley, Charles and Dino Gattuso, and Procopio had
participated in the robbery; CI-1 had the information from
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Armand Bigelow, who heard it from his friend Dino Gattuso.
The second tip, from CI-2, was that Charles Gattuso had
talked about a $10,000 trip to California with his family,
and had said that he still had $80,000 in cash that he was
not "stupid enough to put in the bank." CI-3 stated that
Charles Gattuso had buried money in his back yard and
corroborated the information about the Gattuso family trip to
California. CI-4 said that he had overheard a conversation
in which Kiley's nephews said that Kiley was responsible for
the "armored car heist" and flashed a large amount of
currency to back up the boast.
The Howe affidavit also described a pattern of spending
by Kiley, Gattuso, and Procopio that was inconsistent with
their known legitimate income. Bank records showed that
Kiley had deposited over $42,000 in Florida banks within six
months of the robbery; Procopio had spent $36,000 on a house
in which Gattuso was residing and $12,000 on a new garage.
The affidavit said that Gattuso, a close friend of Procopio,
was a former Berkshire guard familiar with company
procedures. Agent Howe also stated that--based on past cases
involving drug dealers--individuals who have large amounts of
cash from illegal sources often have contraband, proceeds,
and records of their money-laundering efforts in their homes
and places of business.
Both Kiley and Procopio moved to suppress evidence from
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this search; the motion was denied in a 45-page order on May
16, 1994. On appeal, Kiley and Procopio argue that the
district court's determination that Agent Howe's affidavit
provided probable cause to search was flawed; Kiley also
insists that the information was stale.
Under Illinois v. Gates, 462 U.S. 213 (1983), probable
cause to issue a search warrant exists when "given all the
circumstances set forth in the affidavit . . . there is a
fair probability that contraband or evidence of a crime will
be found in a particular place." Id. at 238. In reviewing a
magistrate's decision to issue a warrant, the courts grant
"great deference" to the magistrate's evaluation of the
supporting affidavit, United States v. Jewell, 60 F.3d 20, 22
(1st Cir. 1993), reversing only if there is no "`substantial
basis for . . . conclud[ing]' that probable cause existed."
Gates, 462 U.S. at 238-39.
Kiley and Procopio say that the first informant's tip
was multi-level hearsay and that no evidence was provided to
show the veracity of the unidentified informant. But the tip
did not stand alone. There was information from three other
informants which tended to corroborate CI-1's implication
that Gattuso and Kiley had been involved in the robbery.
Moreover, Kiley, Gattuso, and Procopio each began spending
large sums of cash in the months following the robbery;
Gattuso was known to be familiar with Berkshire's operating
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procedures; Procopio was a close friend of Gattuso's and,
shortly after the robbery, purchased a house in which Gattuso
was residing.
As to Kiley, two confidential informants identified him
as a participant in the robbery, and the government had
evidence of large cash deposits which appeared to have been
structured to avoid triggering reporting requirements.
Procopio's claim is a somewhat closer call, but the fact that
Procopio had been spending large amounts of cash--including
payments on a house in which Gattuso was residing--suggested
that Procopio was involved at least in laundering the
proceeds of a crime in which Gattuso had participated.
Kiley makes two additional arguments. First, he says
that Agent Howe's experience with drug dealers does not
qualify him to speak about the habits of bank robbers. But
what ties the two situations together is the criminal's need
to dispose and keep track of large cash proceeds. Second,
Kiley argues that the information supporting the warrant was
stale because the crime had taken place 14 months before.
Yet, the fact that the robbery had taken place many months in
the past did not eliminate the likelihood that the paper
trail of financial records could be found in Kiley's
residence.
Procopio argues that the district court erred in denying
him a hearing under Franks v. Delaware, 438 U.S. 154 (1978).
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Franks provides for such a hearing where a defendant makes
"allegations of deliberate falsehood or of reckless disregard
for the truth, . . . accompanied by an offer of proof." Id.
at 171. Procopio claimed in the district court that such a
doubt about the agent's good faith exists here because Dino
Gattuso, the alleged source of CI-1's information, later told
the government that he did not recall discussing that
information with anyone else.
The district court properly refused to grant a Franks
hearing. Dino Gattuso's statement falls short of a specific
denial that he ever discussed the matter with Bigelow; nor is
there any indication that Agent Howe was aware of Dino's
statement at the time Howe swore out the affidavit. The
corroborating information, including the evidence of
Procopio's unexplained expenditures, remains unaffected.
Nothing appears to raise a reasonable suspicion of deliberate
misconduct or recklessness on the part of the investigating
agent.
Kiley's papers from his brother's safe. On November 29,
1991, a safe was stolen from Kiley's brother Donald; around
that time, an abandoned safe was found in a park in
Pittsfield, with papers inside the open safe and scattered on
the ground nearby. The papers were taken to the police
station and were laid out to dry and to be fingerprinted. A
police detective noticed that some of the documents were in
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Bernard Kiley's name and called an FBI agent he knew to be
investigating Kiley and the Berkshire robbery. The
investigating agents reviewed the documents and used them to
obtain Kiley's bank records by grand jury subpoena; these
records supported the search of 37 Taubert Avenue.
Kiley argues that the police actions were improper; he
says that once the police knew whose safe it was and that the
documents came from inside it, they had no need to conduct a
review of the documents. In our view, any reasonable
expectation of privacy Kiley enjoyed in documents secured in
his brother's safe was destroyed by private action for which
the government was not responsible. United States v.
Jacobsen, 466 U.S. 109, 113 (1984). And once the papers were
left openly available in a public place, their examination by
government agents was not "unreasonable" under the Fourth
Amendment. Cf. id. at 115-18.
We thus join the Eleventh Circuit which held there was
no Fourth Amendment violation in very similar circumstances
in United States v. O'Bryant, 775 F.2d 1528, 1534 (11th Cir.
1985). See also United States v. Aguirre, 839 F.2d 854, 857
(1st Cir. 1988). Because of the way we resolve this
question, we need not reach the district court's holding that
Kiley lacked standing to challenge the search of his
brother's safe and, in the alternative, that the police
search did not go beyond a proper inventory search.
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Search of Kiley's briefcase following traffic stop. In
November 1992, a Lenox police office tried to pull Kiley over
for driving with a broken headlight. Kiley jumped out of his
car, ran into the woods, and was eventually caught by the
police. The car was impounded and the contents inventoried
in keeping with department policy. The police found a
briefcase in the trunk; they opened the briefcase and found
marijuana and incriminating documents detailing over $100,000
in expenditures. The police informed a federal agent who
asked that the car be held while he obtained a warrant.
The district court held that the police department's
search of the briefcase--which Kiley said was locked--
exceeded the bounds of its own policy covering inventory
searches, and therefore did not come within the applicable
exception to the Fourth Amendment. Florida v. Wells, 495
U.S. 1 (1990); South Dakota v. Opperman, 428 U.S. 364
(1976). However, the court went on to hold that the
"inevitable discovery" doctrine of Nix v. Williams, 467 U.S.
at 444, saved the search. It reasoned that by November 1992,
Kiley was already implicated in the Berkshire robbery
investigation so that federal agents, being told of the
briefcase, would surely have sought a warrant to inspect its
contents.
The burden is on the government to show by a
preponderance of the evidence that the evidence would
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inevitably have been discovered by lawful means. Nix, 467
U.S. 431, 444 (1984); United States v. Infante-Ruiz, 13 F.3d
498, 503 (1st Cir. 1994). We review the district court's
fact finding only for clear error, United States v.
McLaughlin, 957 F.2d 12, 16 (1st Cir. 1992), but the
underlying facts are not in dispute. We will assume
arguendo, favorably to the defendants, that the ultimate
determination (whether discovery here was inevitable) amounts
to a question of law application that is reviewable de novo.
Cf. Ornelas v. United States, 116 S. Ct. 1657 (1996).
Kiley points out that the federal agents only obtained a
warrant after being informed that the briefcase contained
potentially incriminating bank records. He then argues that
it is speculation to assume that, absent those records, the
police would have called federal agents and that federal
agents would have sought a warrant. And in fact, the local
police called the federal authorities only after conducting
what we will assume, for purposes of this argument, may have
been an illegal search of the briefcase.
Still, the local police knew that Kiley was the object
of a federal robbery investigation. And Kiley made a blatant
attempt to flee from the police when stopped for a minor
traffic violation, leaving behind an allegedly locked
briefcase. There is thus little reason to doubt that the
local police would have contacted federal agents, even
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without the information gleaned during the search of the
briefcase itself. It is even more certain that federal
agents, having ample time to do so, would have then sought a
warrant to search the briefcase.
In the alternative, Kiley questions whether without the
documents the government would have had probable cause to
search the briefcase. The evidence that justified the search
of Kiley's residence would have established probable cause to
believe that Kiley was involved in the crimes later charged;
and Kiley's sudden flight and the locked briefcase would have
given a magistrate reason to think that Kiley might well be
carrying material pertaining to the crimes, which included
money laundering.
Search of Kiley's residence at 81 Intervale. Both Kiley
and Lattanzio challenge the propriety of the search of
Kiley's new residence at 81 Intervale Street in Brockton,
Massachusetts. In June 1993, FBI and IRS agents obtained
arrest warrants for Kiley and Lattanzio and a search warrant
for 79 Intervale Road. Lattanzio was arrested outside the
building (containing both 79 and 81 Intervale). The agents
next entered 79 Intervale and were told by a tenant that a
man resided upstairs; the agents called Kiley's name from the
back stairs of the building and received a response from a
third-floor apartment marked 81 Intervale. As Kiley left the
building, he was arrested.
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IRS Agent Downes telephoned to another agent--Agent
Crocker--to ask her to prepare a warrant application for the
new address--81 Intervale. Her affidavit read in part:
On June 8, 1993, I talked by telephone with
Special Agent Gerard F. Downes who advised me that
he was at Bernard Kiley's address at 81 Intervale,
Brockton, MA., waiting to execute a search warrant
. . . . Special Agent Howe advised me that upon
arrival at the residence he discovered that the
correct address for Kiley's residence was 81
Intervale Road, Brockton, MA. rather than 79
Intervale Road as listed in the original
application and warrant.
An amended warrant was issued, and the ensuing search
revealed the cache of arms and other evidence later
introduced at trial. The district court held that the
warrant should not have issued to search 81 Intervale because
nothing in the affidavit established probable cause to
believe that Kiley lived there. In fact, the agent on the
scene knew that surveillance had shown Kiley lived in the
building, knew that his mail was delivered there, and knew
that Kiley had been in the apartment moments before; but none
of this information was included in the warrant application.
However, the district court held that the evidence was saved
by the "good faith" exception to the exclusionary rule.
United States v. Leon, 468 U.S. 897 (1984).
We agree with the district court that Leon applies, an
issue we consider de novo. United States v. Manning, 79 F.3d
212, 221 (1st Cir. 1996). Leon protects good faith police
reliance on a magistrate search warrant, even if the warrant
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later proves invalid, unless inter alia the underlying
affidavit is "so lacking in indicia of probable cause" as to
make reliance upon it "entirely unreasonable." Leon, 468
U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11
(1975)) (Powell, J., concurring in part). See also United
States v. Ricciardelli. 998 F.2d 8, 15 (1st Cir. 1993).
The focus in a warrant application is usually on whether
the suspect committed a crime and whether evidence of the
crime is to be found at his home or business. That hardly
makes the address unimportant: to invade the wrong location
is a serious matter. But so long as the affidavit itself
asserts a link between the suspect and the address, it is
easy to understand how both the officer applying for the
warrant and the magistrate might overlook a lack of detail on
a point often established by the telephone book or the name
on a mailbox.
In this instance, the second affidavit expressly recited
that agent Downes had advised that he was "at Bernard Kiley's
address at 81 Intervale . . . ." Thus, the affidavit
included the agent's assertion that the address to be
searched (81 Intervale) was that of the suspect (Kiley) as to
whom probable cause had been shown; the only omission was the
failure to explain how the agent--who had ample basis for the
contention--knew that "81 Intervale" was "Kiley's address."
Whether or not this is a defect in the application, it is
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hardly blatant, nor is there any suggestion (or basis for a
suggestion) of actual bad faith. Thus, we conclude that Leon
applies.
Cases like Nix and Leon may seem to some like
technicalities that undermine Fourth Amendment protections.
Others may view them as practical accommodations of tensions
bound to arise where highly relevant evidence is threatened
with exclusion in order to deter police misconduct. In all
events, it is our job to apply these doctrines, as they have
been developed by the Supreme Court, to the particular facts
of each case.
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III. RULE 404(b) EVIDENCE
Kiley and Lattanzio object to the admission of guns,
handcuffs, a state police uniform and badge, and a police
scanner seized at 81 Intervale.1 They have consistently
argued that the items are inadmissible because their only
tendency is to suggest that defendants are violent criminals
and the items are character-propensity evidence prohibited by
Fed. R. Evid 404. The government counters that the evidence
is relevant to indicate a criminal association between Kiley
and Lattanzio in 1991; the district court agreed, relying on
our decision in United States v. Fields, 871 F.2d 188 (1st
Cir.), cert. denied, 493 U.S. 955 (1989), and also declined
to exclude the evidence under Fed. R. Evid. 403.
Rule 404 provides that evidence of "other crimes,
wrongs or acts" is not admissible to prove "the character of
a person in order to show action in conformity therewith;"
however, such evidence is admissible if offered for "other
purposes." Id. See United States v. Moreno, 991 F.2d 943,
946 (1st Cir.), cert. denied, 114 S. Ct. 457 (1993). If
evidence "supports a chain of inference independent of any
1Procopio also attempts to raise this issue, arguing
that the admission of this evidence prejudiced his defense.
But "[o]bjections based on Rule 404(b) may be raised only by
the person whose `other crimes, wrongs, or acts' are
attempted to be revealed." United States v. David, 940 F.2d
722, 736 (1st Cir.), cert. denied, 502 U.S. 989 (1991).
Procopio asked for and was granted repeated instructions to
the effect that the 81 Intervale evidence did not relate to
him.
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tendency of the evidence to show bad character," Moreno, 991
F.2d at 946, it is said to have "special relevance" and not
barred by Rule 404.
Here, such special relevance is easy to articulate (the
strength and significance of the inference are a different
matter). Plainly, the seized materials, found in an
apartment used by both Kiley and Lattanzio, tended to suggest
that in 1993 the two men had a criminal association. This to
some extent suggested a criminal association in 1991, which
was helpful to the government's claim that the two men had
collaborated in the Berkshire robbery in 1991. Thus, the
inference goes somewhat beyond the mere implication that
either man was of bad character.
True, the seized items might have belonged only to one
of the two men. Or an association between them might have
been criminal in 1993 but innocent in 1991. But these
possibilities affect only the strength of the government's
inference. A later criminal association increases the
likelihood of an earlier one--which is all that "relevance"
requires, Fed. R. Evid. 401; United States v. Tutiven, 40
F.3d 1, 6 (1st Cir. 1994)--and numerous cases permit such
reasoning from a later event or condition to an earlier one.
E.g., United States v. Andiarena, 823 F.2d 673, 677 (1st Cir.
1987).
In all events, we agree with the district court that we
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crossed this bridge in Fields. There, three defendants were
charged with conspiracy and bank robbery. Three years after
the robberies, two of the defendants were caught in a stolen
car containing various "tools of the trade" for armed
robbers. The evidence was admitted at trial over an
objection based on Rule 404. This court upheld the district
court, holding that the evidence "shed light on the nature of
[the defendants'] association at the time of the crimes
charged." Fields, 871 F.2d at 198.
On appeal, defendants seek to distinguish Fields,
primarily on the ground that the permissible inference
pointing toward guilt in that case was somewhat stronger on
the facts. This may be so, although we there noted that the
similarity between the charged crime and the subsequent acts
was "most likely insufficient to show a "`signature.'" Id.
at 197. But it seems to us that, so long as some "special
relevance' is shown, the bar of Rule 404 is crossed and the
issue is then one of balancing probative value against
prejudice under Rule 403.
This Rule 403 judgment was undoubtedly a close one on
the present facts. The criminal association was itself
merely inferred (Lattanzio did not live permanently at the
apartment), and the need to reason backward from 1993 to 1991
further weakens the inference. And here, as is often the
case with Rule 404(b) evidence, the permissible inference
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(criminal association) overlapped with, and went only a small
step beyond, the forbidden one (criminal character). This in
turn increases the difficulty for the jury and the risk of
prejudice.
On the other hand, some would think that the evidence
confirmed a criminal association as of 1993, indeed, an
association probably designed to perpetrate robberies.
Arguably, the two year gap was less important than usual,
given an admitted association of some kind in 1991 (albeit in
the months after the robbery). The evidence was scarcely
redundant.2 And the presence of guns at the apartment,
while telling, is not such as to overwhelm the emotions of an
ordinary juror in the manner of gruesome testimony or
photographs.
In sum, the issue was at best a close one which a
reasonable judge might have decided either way. The district
court enjoys great latitude in making an on-the-spot
balancing judgment under Rule 403, Manning, 79 F.3d at 217,
and we cannot find any abuse of discretion here. This is
especially so in view of Fields where similar evidence was
2As the Advisory Committee Notes to Rule 403 point out,
"[i]n reaching a decision whether to exclude evidence on
grounds of unfair prejudice, . . . [t]he availability of
other means of proof may also be an appropriate factor." In
this instance, a prior association between Kiley and
Lattanzio was amply proved by other evidence (e.g., of their
trips) but nothing else directly indicated the criminal
character of the association.
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upheld by this court. The truly difficult problem for us is
not the admission of the evidence but the use made of it by
the prosecutor in closing, a subject to which we will shortly
return.
IV. PROSECUTORIAL MISCONDUCT
All these defendants object to various comments made by
the prosecutor in his rebuttal argument, and argue that the
trial judge erred in failing to grant a mistrial. Several of
the comments were the subject of timely objection and the
claims of error are fully preserved; the others are
reviewable for plain error. United States v. Wihbey, 75 F.3d
761 (1st Cir. 1996).
Comment on Failure to Testify. The first charge is that
the prosecutor impermissibly commented on the defendants'
failure to testify. Counsel for Kiley and Lattanzio argued
in their closing that the jury could find cause for doubt in
the government's failure to ask the Berkshire guards to
identify Kiley's and Lattanzio's voices from the prison
tapes. In its rebuttal, the government replied:
And why didn't the Government play tapes for the
guards and see if they recognized the defendants'
voices. You heard from two of the defense counsel
if we had, and if the guards identified the voices.
Is there anybody here that thinks that the
defendants would have come in the courtroom and
fessed-up, or would they have just created more
illusions for argument.
An objection was made, but the district judge saw no
impropriety.
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What the prosecutor was trying to say was that defense
counsel were making a commotion about a lack of evidence from
the guards but, if such testimony had been offered, counsel
would then have belittled it. The prosecutor's reference was
inartful and could be taken--especially out of context--as an
improper comment. But it was certainly not an intentional
comment on the failure to testify. And in context, it was at
most a glancing brush rather than a blow against the
privilege.
The district judge included in the closing instructions
the standard warning: that defendants have an absolute right
not to testify and that no inference should be drawn from a
failure to testify. If any juror mistook the prosecutor's
comment to suggest otherwise, that suggestion was squarely
corrected not long afterwards by the judge. We are
completely confident that the comment did not affect the
outcome, and although perhaps technically a violation, was
harmless beyond a reasonable doubt. Chapman v. California,
386 U.S. 18 (1967). Comment on propensity to violence.
All defendants complain on appeal about the following remarks
by the prosecutor:
These defendants, make no mistake about it, share a
violent and vicious criminality. The arsenal at
Intervale and Frank's explicitly saying they will
go into the criminal business again have no other
explanation. Our society doesn't need it. I
submit to you society has had enough of Frank
Procopio, Bernie Kiley, and Vinnie Lattanzio.
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This comment was improper for two reasons. First, the
"society doesn't need it" comment "served no purpose other
than to `inflame the passions and prejudices of the jury.'"
United States v. Machor, 879 F.2d 945, 956 (1st Cir. 1989),
cert. denied, 493 U.S. 1081 (1990) (quoting in part prior
precedent). Second, and more troubling, the prosecutor's
remarks encouraged the jury to conclude from the 81 Intervale
evidence that the defendants were "violent and vicious"
criminals. This inference--that the defendants were of bad
character--was precisely the inference that Rule 404(a)
forbids.
However, defense counsel failed to object at trial to
these remarks by the prosecutor. Reviewing courts are very
reluctant to reverse for unobjected-to errors that could have
been corrected or ameliorated by timely objection. Arrieta-
Agressot v. United States, 3 F.3d 525, 528 (1st Cir. 1993).
Consonantly, under the "plain error" test, the error has to
be obvious and affect "substantial rights," and the failure
to reverse the conviction must cause a miscarriage of
justice. United States v. Olano, 113 S. Ct. 1770, 1777-79
(1993).
We regard this set of comments as presenting a very
close call, at least as to Lattanzio. Against Kiley, the
direct evidence was strong; but Lattanzio was not directly
identified by anyone, and the government's case against him
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was based on adequate, but hardly overwhelming,
circumstantial evidence. If Lattanzio had objected at trial
and if (which we doubt in light of the final instructions)
the district court had ignored or overruled the objection, it
might be hard for the government to show the error was
harmless. United States v. Randazzo, 80 F.3d 623, 631 (1st
Cir. 1996).
But here, it is Lattanzio who must show that the
improper remarks likely infected the jury (affected
"substantial rights" in Olano's words) and mere possibilities
are not enough. The assault on the guards and the weaponry
found at Intervale were facts permissibly before the jury.
What was added was improper commentary; but this is not a
case in which the jury learned of inadmissible events,
something far more likely to infect fatally the jury's
reasoning.
Similarly, under Olano's miscarriage of justice
standard, we think the prosecutor more culpable here than in
the "fess up" comment; that was merely inadvertent and this
was seriously careless. But it is important to note that the
district court, in closing instructions the next day, did
give a pointed warning to the jury:
During closing arguments yesterday,
certain counsel made certain remarks that
were heated and inflammatory, perhaps
depending on how you look at them, and
certainly emotional.
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I ask you to totally disregard what
counsel may have said in a heated
fashion. Your job is to determine the
truth . . . .
The court also firmly reminded the jury that the Intervale
evidence was not to be used as propensity evidence.
These are the very curative instructions that would have
been given if a timely objection had been made. The fact
that the defense did not object also may suggest that, in the
conditions of the courtroom, the passage in question passed
by as mere rhetoric. In all events, we are not persuaded
under Olano that this misstep, taken in light of the curative
instructions, probably altered the result or produced a
fundamentally unfair trial.
Implication of threats. Defendants, during closing
arguments, attempted to cast doubt on Gattuso's reliability
by referring to the fact that the government had paid him and
reduced the charges against him. The government responded:
Mr. Graham objected, apparently a moral objection,
because the Government spent $10,000 on subsistence
expenses for Charlie Gattuso before he entered the
witness protection program, as part of that
program. I'm sure that Mr. Graham and the other
defendants would have preferred he not be here, and
he not testify, and I want to apologize on behalf
of the government for protecting his life.
Defendants argue that the comment unfairly implied that the
defendants would prefer to see Gattuso dead and in fact posed
a threat to him. They also suggest that the jury could have
had its doubts aroused by Abbott's absence, but in fact any
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hint that he had been murdered was scrupulously excluded from
the trial.
The jury already knew that Gattuso was in a witness
protection program, presumably for his protection, and
obviously the defendants would have preferred that Gattuso
not testify. The implication that the defendants posed a
threat to Gattuso's life is more troubling, but it was
indirect, utterly unsupported, and occurred during a
legitimate attempt to explain (in response to defense
impeachment) why the money had been spent. We do not think
that the criticized comment, although over the line of
propriety, affected the defendants' substantial rights.
Disparagement of counsel. The prosecutor told the jury
that defense arguments were "illusions . . . a smoke screen
aimed at creating that, an illusion to . . . deflect you from
the single thread of truth that . . . unifies all the
evidence in the case." Then the government stated, "This
isn't a game . . . the robbery wasn't a game, and I've got
news for the defense counsel, this trial isn't a game
either." Only Lattanzio objected to this statement at trial;
he asked for a curative instruction which was given. No
further objection was raised.
"The prosecutor is expected to refrain from impugning,
directly or by implication, the integrity or institutional
role of defense counsel." United States v. Bennett, 75 F.3d
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40, 46 (1st Cir. 1996), petition for cert. filed (June 5,
1996) (No. 95-9237). The prosecutor's remarks, although more
wind than rain, were arguably excessive disparagement. But a
corrective instruction was asked for and given, and it is
unrealistic to suggest that such empty cliches seriously
affected the jury's deliberations.
Defendants said at oral argument that the prosecution
had attempted in these appeals to defend its improper remarks
piecemeal, glossing over the cumulative impact. Cumulative
impact is a legitimate concern, cf. United States v. Manning,
23 F.3d 570, 575 (1st Cir. 1994), but the only remark that
raised serious risk of prejudice was the "vicious and violent
criminality" comment. Nor did the other comments form a
pattern that would tend to reinforce the improper inference
there encouraged. We are thus satisfied that the improper
arguments, even taken as a whole, do not merit reversal.
They do merit some criticism of the prosecution.
Contrary to the epigram, a fault is not worse than a crime;
but a pattern of faults does suggest a failure in
supervision. The government should not have to devote almost
20 pages of its brief to explaining away problems with its
arguments to the jury. It is happenstance that the
prosecution has done more damage to its own reputation than
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to the defendants' right to a fair trial.3
V. CONCLUSION
Defendants have raised some additional arguments in
their briefs. Among others, Procopio claims that he was
affected by the Intervale evidence and also that it was error
for the district court to deny his motion to sever. Kiley
and Lattanzio object to the admission of certain tape
recordings on hearsay grounds and under Bruton v. United
States, 391 U.S. 123 (1968). Lattanzio objects to the
admission of a photograph of cash in a clothes drier and also
argues that the district court erred by failing to instruct
the jury on the meaning of reasonable doubt.
We have carefully considered defendants' arguments on
these and on a few additional points, primarily related to
the instructions and additional instances of allegedly
improper argumentation by the prosecutor. In our view, none
of these points presents a strong claim of error and none,
even if error, involves any serious risk of prejudice. It
was fair for defense counsel to raise these issues in the
course of their thorough and extensive briefs, but they do
not require further discussion by us.
Affirmed.
3 In light of our criticism of the rebuttal argument,
we think it fair to note that the assistant United States
Attorney who argued this case on appeal was not the
prosecutor who presented the rebuttal argument at trial.
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