UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1131
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY J. GRABIEC, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Scott F. Gleason with whom Gleason Law Offices was on brief for
appellant.
George B. Henderson, II, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
September 25, 1996
ALDRICH, Senior Circuit Judge. Defendant Anthony
J. Grabiec, Jr., connected with an illegal gambling and loan-
sharking organization known as the Winter Hill Gang, was
found guilty of various racketeering offenses, 18 U.S.C.
1962(c) and (d), but acquitted on one count under 18 U.S.C.
894(a). On this appeal he complains of a prejudicial
argument by the prosecutor in his final summation to the
jury, and of the court's refusal to allow him to make a
particular argument based on the government's opening
statement. We affirm.
After defendant's brief's lengthy exposition of
various types of improper arguments, their possibly serious
consequences, and effective and ineffective cures, it
developed that the prosecutor's offense, after defendant had
charged him with "bias . . . puffery . . . bombast and . . .
hot air"1 was to speak of the defense as "laughable." More
exactly:
[I]f there is any bombast, puffery
and hot air in this case, it's not coming
from our side of the table. In fact, the
defense in this case would be laughable
if the crimes involved were not so
serious.
It further appeared that, upon defendant's objection, the
court said to the jury, "Well, the jury will understand that
1. Five times.
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this is argument, not evidence. It will be taken that way."
The defendant said nothing further.
This silence, of course, means defendant must now
prove plain error. United States v. Wihbey, 75 F.3d 761, 769
(1st Cir. 1996) (citing United States v. Olano, 507 U.S. 725,
731 (1993)); Fed. R. Crim. P. 52(b). We do not, however,
find even simple error.
We can agree with defendant that we have long held
that counsel must not express a personal opinion. Greenberg
v. United States, 280 F.2d 472, 475 (1st Cir. 1960) (Aldrich,
J.). Again, in United States v. Nickens, 955 F.2d 112, 121
(1st Cir.), cert. denied, 506 U.S. 835 (1992), we said, "This
court has repeatedly stated that it is improper for a
prosecutor to inject personal beliefs about the evidence into
closing argument." (citations omitted). Although there is
perhaps a heavier burden on prosecutors, the rule applies
both ways. In United States v. Young, 470 U.S. 1, 8-9
(1985), the Court said, "Defense counsel, like the
prosecutor, must refrain from interjecting personal beliefs
into the presentation of his case." (citations omitted).
Strict application of this rule in the course of extended
argument, resulting in constant "I suggest to you that . . .
" "I ask you to find . . . " becomes tiresome. We have been
content with the court, in its discretion, substituting "the
standard instruction that arguments of counsel are not
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evidence." United States v. Bennett, 75 F.3d 40, 46 (1st
Cir. 1996), petition for cert. filed, U.S.L.W. (U.S.
Jun. 5, 1996) (No. 95-9237). There the prosecutor stated
that a defense argument was a "diversion." We were satisfied
with the court's giving that instruction. We are equally
satisfied here.
Bennett, in fact, is even more helpful. The
prosecution there had asserted that one of defendant's
arguments "doesn't pass the laugh test." We accepted that as
within the ordinary "rough and tumble," and not violating the
prosecutor's duty "to refrain from impugning, directly or
through implication, the integrity or institutional role of
defense counsel." Id.
Even without Bennett the prosecutor's conduct was
unexceptional for there is another rule. As against
defendant's citation of the oft-quoted adjuration to
prosecutors in Berger v. United States, 295 U.S. 78, 88
(1935), defendant fails to note the Court's more recent
observation:
[I]f the prosecutor's remarks were
"invited," and did no more than respond
substantially in order to "right the
scale," such comments would not warrant
reversing a conviction.
United States v. Young, 470 U.S. at 14 (footnote omitted).
After defendant's oratorical charges, five times repeated, it
scarcely lay in his mouth to object to a single reply in like
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tone. United States v. Whiting, 28 F.3d 1296, 1303 (1st
Cir.), cert. denied, U.S. , 115 S. Ct. 378 (1994);
United States v. Nickens, 955 F.2d 112 at 122; United States
v. Maccini, 721 F.2d 840, 846 (1st Cir. 1983). Even tested
as simple error this claim is frivolous.
Second, defendant maintains that the court erred in
restricting his closing argument, thereby ensuring conviction
on Count 57, one of two extortion charges. Specifically, he
contends he was precluded from arguing to the jury the
prosecution's failure to introduce evidence promised in its
opening statement.
During his opening, the prosecutor, in an attempt
to describe the defendant's collection methodology, told the
jury it would hear evidence that:
One night [Grabiec] even barged into
Mr. Gagliardi's home in a frenzy, grabbed
his wallet, cut up Mr. Gagliardi's credit
cards in front of Mr. Gagliardi's wife
and children. I suggest to you that
there can be nothing more terrifying than
having somebody come into your home in
front of your wife and children and doing
something like that.
While Gagliardi did eventually testify to a nighttime visit
from the defendant that left him feeling "very, very upset,"
he also testified that he had never been threatened nor
intimidated. When the government sought to introduce a
portion of a tape of monitored conversations between Grabiec,
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Gagliardi and others contradicting Gagliardi's denial of
intimidation,2 the trial judge sustained the defendant's
objection and excluded the evidence.
The defendant, in his closing argument, sought to
seize the moment by reminding the jury, "In the opening
statement, Mr. Wyshak said to you that there was going to be
evidence that in the middle of the night Mr. Grabiec barged
into the home of Mr. Gagliardi and was threatening him in
front--," at which point the prosecutor objected. The court
sustained the objection and cautioned the jury that it "heard
what was said and you will take your own memory both of the
arguments and of the evidence rather than what opposing
counsel says the other counsel said." Defendant did not
attempt to rephrase his argument nor did he object to the
ruling or request a curative statement regarding the
prosecutor's opening statement.
After the verdict, during a colloquy concerning the
question of defendant's immediate detention under 18 U.S.C.
3143(a)(2), defendant contended that he had been prevented
from making, what was in his view, a legitimate argument
during summation that was directly relevant to his conviction
on the extortion count. The prosecution responded that the
restriction was proper because "essentially defendant was
2. On the tape, Gagliardi stated that "[Grabiec] came into
my house and he was fucking terrorizing me in front of my
wife."
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trying to impugn the integrity of the Government by
commenting on the fact that they didn't hear evidence which
the defendant on its own motion asked not to be heard by the
jury. . . ."
After reviewing the transcript, the court observed:
[I]t was that middle-of-the-night
charge that triggered my immediate
ruling: "Objection sustained." There is
a lot of difference between saying he
barged in in a frenzy in front of his
wife at night, cut up his credit cards,
and saying he barged in in the middle of
the night. That carries an impression
after everybody's gone to bed. It's
quite a different charge. And if you're
going to quote the other side's argument,
you need to be accurate about it.
Defendant argues that his Sixth Amendment right to
assistance of counsel was violated by the court's restriction
of his closing argument. See Herring v. New York, 422 U.S.
853 (1975). Had the jury been able to consider the
government's failure to produce this evidence, he maintains,
it would not have convicted on this extortion charge as it
had not convicted on the parallel charge involving another
victim.
The government, while maintaining that its reason
for objecting was valid, adds that defense counsel's
mischaracterization warranted the court's action. Because
defendant failed to object to the court's ruling and did not
attempt to rephrase his argument, we again review only for
"plain error," requiring him to "show an obvious and clear
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error under current law that affected his substantial
rights." United States v. Phaneuf, 91 F.3d 255, 263 (1st
Cir. 1996); United States v. Procopio, 88 F.3d 21, 31 (1st
Cir. 1996); United States v. Gilberg, 75 F.3d 15, 18 (1st
Cir. 1996) (citations omitted).
Under the Sixth Amendment, a defendant is entitled
to the assistance of counsel, including the delivery of a
closing argument which is "a basic element of the adversary
factfinding process in a criminal trial." Herring, 422 U.S.
at 858. The court, however, has broad discretion over the
scope of summations. Id. at 862; United States v. Wood, 982
F.2d 1, 4 (1st Cir. 1992); United States v. Coast of Maine
Lobster Co., 557 F.2d 905 (1st Cir.), cert. denied, 434 U.S.
862 (1977); United States v. Wilbur, 545 F.2d 764, 767 (1st
Cir. 1976). Here the court upheld the government's objection
because, in its opinion, defendant mischaracterized the
prosecution's opening statement. There is a difference
between "middle of the night" and "one night;" in the context
of "barging in," the former carries more of an aura of menace
than the latter. To disallow a deviation from opposing
counsel's statement was well within the court's discretion.
Moreover, contemporaneous instruction to the jury to use its
"own memory" of the arguments and evidence rather than
counsels' representations, in no way constrained defendant
from continuing properly with his argument, without
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paraphrasing opposing counsel. We find no error plain or
otherwise.
Affirmed.
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