United States Court of Appeals
For the First Circuit
No. 02-1318
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS J. MOONEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jeffrey Silverstein, with whom Billings & Silverstein, was on
brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for
appellee.
December 30, 2002
BOWNES, Senior Circuit Judge. Defendant-appellant Dennis
Mooney was prosecuted federally and convicted of conspiracy to
obstruct commerce by robbery in violation of 18 U.S.C. § 1951, and
using or carrying a firearm in relation to a crime of violence in
violation of 18 U.S.C. § 924(c). Mooney challenges his conviction
on the grounds that (1) the prosecutor made improper remarks in her
opening statement that denied him a fair trial; (2) the trial judge
erred in allowing the government's handwriting expert to opine that
the defendant was the author of letters implicating his
participation in the robbery; and (3) he was unduly prejudiced by
the government's delayed disclosure of evidence. Finding no
reversible error, we affirm the conviction.
I. FACTS
We recite the facts in the light most favorable to the
verdict. See United States v. Wihbey, 75 F.3d 761, 764 (1st Cir.
1996). Additional facts are outlined in our analysis that follows.
In the early morning hours of November 27, 2000, Matthew
Sliker ("Sliker"), the overnight clerk of the Budget Host Motel in
Waterville, Maine had just completed his duties. Sliker was
playing a copy of the video game "Syphonfilter 2," which had been
rented from a store called "Movie Gallery," on a Sony Playstation
in the lobby when the defendant, Dennis Mooney ("Mooney") and his
brother, David Mooney ("David"), entered and inquired about a room.
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After asking about the price, Mooney told Sliker they needed to get
money and both men left the hotel. Sliker followed them outside to
smoke a cigarette and watched the two men approach other men
standing next to a dark gray Volkswagen Jetta.
After Sliker returned to the lobby, David and Mooney came
back into the motel. David asked to play the video game, and
Sliker began filling out a registration form with Mooney. Marquis
Craig ("Craig") then entered the lobby and approached the
registration desk. Wearing a blue bandana over his face, Craig
pulled out a sawed-off pump shotgun with a scope, pointed it toward
the ceiling, loaded a round into the chamber, and then put the gun
on the counter. The defendant ordered Sliker to raise his hands
and not to set off any alarms. Craig demanded money, and after
Sliker unlocked the cash drawer, the defendant took $195. David
then used a telephone cord to tie Sliker's ankles to his wrists.
Pointing the gun in Sliker's face, Craig warned him that if he
waited less than two hours to call the police, he would be killed.
One of the robbers grabbed the Sony Playstation, and they fled in
the Jetta. In the car, Mooney divided the money among the robbers
and his other co-conspirators, Nathan D'Amico ("D'Amico") and
Manuel Roderick ("Roderick").
Eventually, Sliker's hands became untied and he called
the police. He described the defendant as a white male, 18-21
years old, with thin sideburns and a red tinted jaw-line goatee,
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wearing a dark blue or black bandana and a black or tan jacket with
the word "American" across the back. The police intercepted the
robbers on the highway as they headed toward Portland. The
defendant, David, D'Amico and Roderick were arrested at the scene
and brought to the Portland police station. Craig exited the
vehicle and fled into the woods, but was later found and arrested.
In the car, the police found a Sony Playstation, a Syphonfilter 2
video game from Movie Gallery, two dark blue bandanas, and a sawed-
off pump shotgun with a scope.
Later that night, on the way to the Portland police
station, Sliker and two detectives stopped to inspect the dark gray
Jetta that the police had pulled over earlier. Sliker recognized
it as the car used in the robbery. He also identified the shotgun.
Once Sliker arrived at the station, he identified one of the
robbers, David, in a photographic lineup.
Sliker then waited in the lobby. In an attempt to
isolate him from the suspects in custody, a member of the police
department who was not involved in the robbery investigation
brought Sliker to the back of the station. During the escort,
Sliker passed the defendant, who was in handcuffs. Sliker
recognized him right away and told one officer that the defendant
was the robber who took the money out of the cash register.
At the trial, cooperating witnesses Craig, David, and
D'Amico identified the defendant as one of the three men who
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committed the robbery. They also testified that the defendant had
suggested robbing the Budget Host Motel. Sliker corroborated their
testimony by identifying the defendant as one of the robbers. In
addition, the defendant's former girlfriend and the government's
handwriting expert testified that Mooney authored letters in which
he admitted his participation in the robbery.
After deliberating for two hours, the jury found Mooney
guilty of the robbery conspiracy and using or carrying a firearm in
the commission of a violent crime. The defendant was sentenced to
a term of twenty-seven years and six months. This appeal followed.
II. IMPROPER ARGUMENTS BY THE PROSECUTOR
Mooney claims that improper comments made by the
prosecutor during her opening argument undermined the fairness of
his trial and warrant reversal of his conviction. Specifically,
the defendant challenges the prosecutor's opening statement on two
different grounds. First, he argues that the prosecutor improperly
appealed to the jury's emotions when she began her opening with the
following remarks:
We are fortunate in the state of Maine,
particularly in the part of Maine that most of
us come from, to live lives that are
relatively free from random acts of violence.
We don't have bars on our windows. We don't
fear walking at night. And as a rule, our
homes and our workplaces are safe havens from
random crime.
This case involves a painful exception to that
rule, a random act of violence that has
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forever changed the way that one person looks
at the world, and in some respects has rocked
the sense of security of an entire Maine
community.
In addition, while describing the nature of the burglary to the
jury, she commented: "after the drawer was empty and the phone
cords had all been cut, thank God, the three of them left the hotel
lobby." The defendant asserts that these comments created an
alliance between the Government and the jurors, implied that the
defendant had corrupted the community, and resulted in an improper
appeal to the jurors' passions and prejudices.
Second, the defendant argues that the prosecutor
impermissibly commented on his failure to testify, in violation of
his Fifth Amendment privilege against self-incrimination. In her
opening, the prosecutor told the jury:
Finally, as you assess the codefendants'
credibility, consider how their testimony fits
with the defendant's own words. You see,
after the defendant was arrested on these
charges, he chose not to speak to the police,
and that was certainly his right. He did give
a false name.
The defendant argues that this comment impermissibly suggested that
the defendant's silence was evidence of guilt and therefore
requires a new trial.
At sidebar after the prosecutor's opening statement, the
defendant immediately objected to these comments and moved for a
mistrial. The district judge denied his motion on the basis that
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just prior to hearing the remarks, the jury had been instructed
that opening statements were not evidence in the case. He then
promptly delivered an explicit curative instruction to the jury.
The judge reminded the jury that the defendant was presumed
innocent and that the government carried the burden of proving he
was guilty beyond a reasonable doubt. He also reiterated that the
jury could only use the evidence, not their personal feelings,
biases or opinions to determine the defendant's guilt or innocence.
Further, he delivered the following instruction:
Let me just elaborate on that for a little
bit. Number one, everybody who's arrested has
a right to remain silent, and you are not
permitted to use the fact that someone did or
did not remain silent as any element of guilt.
You are not to use that . . . to find any
issue of guilt in this case, and I instruct
you in that regard. Any finding of guilt must
be based solely upon the evidence in this case
and not that factor.
Number two, you are not to use as an element
in determining guilt or innocence in this case
whether or not we're fortunate in Maine to be
safe or not . . . and whether you or Maine or
any community is safer or less safe depending
upon whether you find the defendant guilty or
not guilty. That simply is not an appropriate
issue. You're only to use the issue of
whether or not the government has proved
beyond a reasonable doubt sufficient facts to
show that the defendant beyond a reasonable
doubt has committed those acts necessary to
constitute these crimes.
The defendant alleges that the district judge erred in
denying a mistrial because taken together the prosecutor's improper
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remarks had a cumulative prejudicial effect on the jury that could
not be cured by a cautionary instruction. In response to this
appeal, the government does not defend the prosecutor's opening
remarks, but instead argues that a mistrial was unwarranted because
the improper remarks were brief and isolated; were promptly cured
by limiting instructions; and were completely inconsequential in
light of the overwhelming evidence against the defendant. We
review the district judge's denial of the motion for a mistrial for
manifest abuse of discretion. See United States v. Rodrigues-
DeJesus, 202 F.3d 482, 485 (1st Cir. 2000).
A. Improper Appeals to the Jury's Passions and Prejudices
We agree with the defendant that the prosecutor's remarks
contrasting the jurors' sense of community safety with the armed
robbery of the hotel crossed the bounds of permissible argument.
These comments interjected issues having no bearing on the
defendant's guilt or innocence and improperly appealed to the jury
to act in ways other than as dispassionate arbiters of the facts.
See United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st
Cir. 1995) (prosecutor's use of the term "we" impermissibly
suggested an alliance between the government and a church to which
many of the jurors, but not the defendant, belonged); United States
v. Arrieta-Agressot, 3 F.3d 525, 527 (1st Cir. 1993) (government's
closing which urged the jury to consider case as a battle in the
war against drugs with the defendants as enemy soldiers corrupting
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"our society" was inflammatory and impermissible); United States v.
Moreno, 991 F.2d 943, 947 (1st Cir. 1993) (opening statement
referencing a community plagued by shooting and killings improperly
played upon the jury's emotional reaction to neighborhood
violence).
This finding, however, does not end our analysis. These
improper remarks are grounds for reversal only if they "so poisoned
the well" as to have likely affected the trial's outcome.
Cartagena-Carrasquillo, 70 F.3d at 713 (quoting United States v.
Hodge-Balwing, 952 F.2d 607, 610 (1st Cir. 1991)). In making that
assessment, we weigh several factors, including: the severity of
the misconduct; whether it was deliberate or accidental; the
context in which it occurred; whether the judge gave any curative
instructions and their likely effect; and the strength of the
evidence against the defendant. See United States v. Torres-
Galindo, 206 F.3d 136, 142 (1st Cir. 2000); United States v.
Manning, 23 F.3d. 570, 574 (1st Cir. 1994); see also United States
v. Auch, 187 F.3d 125, 129 (1st Cir. 1999) (adopting similar
factors).
Our review of the record reveals that the prosecutor's
improper appeal to the jurors' passions, on balance, was not
severe. Admittedly, the remarks appear to be intentional because
they were part of her opening statement and likely scripted in
advance. See Wihbey, 75 F.3d at 772. The comments, however, were
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brief and isolated. After the defendant objected to them, the
prosecutor never again suggested that the defendant corrupted the
general safety of the community of Maine, nor did she make other
improper appeals to the jurors' emotions during the remainder of
the four-day trial. Cf. Manning, 23 F.3d at 575 (prosecutorial
misconduct was "pervasive"); Auch, 187 F.3d at 128 (prosecution
made "repeated" improper references).
The context of the prosecutor's comments also weighs
against finding that they likely affected the outcome of the trial.
The comments occurred during opening arguments, not during
summation where the last words the jury hears have significant
potential to cause prejudice. See Auch, 187 F.3d at 132. In
addition, the remarks were prefaced by the judge's standard
instructions informing the jury that neither opening statements nor
summations may be considered as evidence in the case. We have
found that these standard instructions alone are sometimes enough
to neutralize any prejudice from improper remarks. See United
States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).
In the instant case, the judge did not exclusively rely
on these standard instructions. He promptly delivered a forceful
and specific limiting instruction, and we generally presume that a
jury will follow such instruction. See Wihbey, 75 F.3d at 773
(citing Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)). Given the
decisive nature of his instruction, we believe it cured any
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prejudice.
Moreover, we note that any lingering prejudicial effect
from the remarks pales in comparison with the overwhelming strength
of the government's evidence against the defendant. All three of
Mooney's accomplices testified that he suggested that they rob the
motel, took the money from the cash register, and then divided the
proceeds. The victim independently identified Mooney as the robber
who removed the money from the cash drawer. In addition, after
intercepting the defendant and his accomplices on the highway, the
police found in the Jetta the gun, bandanas and the Sony
Playstation and video game stolen from the motel. Finally,
Mooney's girlfriend and a handwriting expert testified that he
authored letters admitting his role in the robbery. Taking a
balanced view of this evidence, see Auch, 187 F.3d at 130 n.8, we
are confident that the prosecutor's improper appeal to the jury's
emotions did not affect the outcome of the trial.
B. Comment on the Defendant's Failure to Testify
While the prosecutor's improper inflammatory remarks are
reversible error only if they likely affected the trial's outcome,
the prosecutor's comment on the defendant's failure to testify
requires reversal unless the government can prove the error
harmless beyond a reasonable doubt. See Chapman v. California, 386
U.S. 18, 23-24 (1967); see also Wihbey, 75 F.3d at 769, 772 n.6.
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We believe the government met that burden.1
As we already described, the evidence against the
defendant was overwhelming. In addition, the judge's jury
instructions strongly emphasized the presumption of the defendant's
innocence and the government's burden to prove his guilt beyond a
reasonable doubt. The prosecutor's comments on the defendant's
post-arrest silence were sandwiched between the judge's opening
charge that the jury must not consider opening arguments as
evidence and his forceful curative instructions after the
prosecutor made the remark. In his closing charge to the jury, the
judge also explained the defendant's constitutional right not to
testify and the government's burden of proof beyond a reasonable
doubt sixteen times. Accordingly, even taking the prosecutor's
statement into account, it is clear beyond a reasonable doubt that
the jury would have returned a guilty verdict in this case. See
United States v. Hastings, 461 U.S. 499, 510-11 (1982).
C. Motion for a Mistrial
We acknowledge that several incidents of prosecutorial
misconduct, none of which individually would require reversal,
taken together may have a cumulative effect that warrants a
1
We must acknowledge our dismay that any prosecutor in this
circuit could apprise a jury in an opening statement that a
defendant had chosen not to talk to the police. It is difficult to
imagine a more fundamental error. We hope that we will not see
this error again by any prosecutors in our circuit.
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mistrial. See Wihbey, 75 F.3d at 773. Nevertheless, "[t]he remedy
of a new trial is rarely used; it is warranted only where there
would be a miscarriage of justice or where the evidence
preponderates heavily against the verdict." Rodrigues-DeJesus, 202
F.3d at 486. Moreover, we review the denial of a motion for a new
trial for manifest abuse of discretion. Id. at 485. Given the
record in this case, the judge exercised sound discretion in
denying the defendant's motion.
III. EXPERT TESTIMONY
The defendant also argues that the district court
misapplied Federal Rule of Evidence 702 by allowing the
government's proffered handwriting expert to testify that the
defendant was the author of several letters that acknowledged his
involvement in the burglary. The defendant does not contend that
the expert's testimony should have been struck in its entirety.
Instead, he makes the more narrow argument that, although the
reliability of the expert's methodology suffices to support
testimony regarding the similarity and differences between the
handwriting on the letters and that of the defendant, the expert's
reliability cannot sustain the admission of his ultimate opinion as
to whether the defendant authored the letters. The district court
disagreed, and we fail to see how the district court abused its
discretion in reaching its conclusion.
Under Rule 702, a qualified expert witness may testify
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"in the form of an opinion, or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the
case." Fed. R. Evid. 702. The Supreme Court has held that this
rule imposes a gate-keeping function on the trial judge to ensure
that an expert's testimony "both rests on a reliable foundation and
is relevant to the task at hand." Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-49 (1999) (holding that Daubert
applies not only to scientific testimony but also to technical and
other specialized expert testimony).
In Daubert, the Court identified four factors that may
assist a trial court in determining the admissibility of an
expert's testimony: (1) whether the theory or technique can be and
has been tested; (2) whether the technique has been subject to peer
review and publication; (3) the technique's known or potential rate
of error; and (4) the level of the theory or technique's acceptance
within the relevant discipline. 509 U.S. at 593-94. These
factors, however, are not definitive or exhaustive, and the trial
judge enjoys broad latitude to use other factors to evaluate
reliability. See Kumho Tire, 526 U.S. at 153. Further, a trial
judge's decision to admit or exclude expert testimony will be
reversed only for abuse of discretion. See United States v. Diaz,
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300 F.3d 66, 74 (1st Cir. 2002) (citing Gen. Elec. v. Joiner, 522
U.S. 136, 138-39 (1997)).
A review of the district court's voire dire hearing on
the admissibility of the handwriting expert's proposed testimony
reveals that the judge did not abuse his discretion. The expert
testified that he and other forensic document examiners employ the
same methodology to analyze and compare a known individual's
handwriting samples to the handwriting on the document at issue.
This methodology has been subject to general peer review through
published journals in the field. In addition, its accuracy has
been tested, with one study concluding that certified document
examiners had a potential rate of error of 6.5%. The proffered
expert indicated that he was certified by the American Board of
Forensic Document Examiners to apply this methodology. He also
testified that he submitted to proficiency tests twice a year, and
that all of his work is reviewed and confirmed by at least one
other document examiner.
At the close of the hearing, the district judge concluded
that the handwriting expert's proposed testimony should be admitted
in its entirety because it was reliable and based upon valid
technical and specialized knowledge. Finding the Daubert factors
relevant to his evaluation of the reliability of the expert's
testimony, the judge noted that all the factors were met in this
case. The judge also found persuasive the historical acceptance of
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handwriting testimony, noting that the Federal Rules of Evidence
specifically allow expert witnesses to authenticate questioned
documents by comparing the handwriting on them to previously
authenticated specimens. See Fed. R. Evid. 901(b)(3).
The defendant argues that the district court erred in
admitting the expert's opinion that the defendant was the author of
the incriminating letters. He contends that the field of
handwriting analysis lacks sufficient standards and testing to
verify that analysts can accurately and definitively identify the
author of a questioned document. Specifically, he asserts that the
discipline lacks a set standard regarding the number of handwriting
similarities required to make a "match," and that the studies
regarding its accuracy have been subject to criticism. The
defendant, however, misunderstands Daubert to demand unassailable
expert testimony. As we previously have explained,
Daubert does not require that the party who
proffers expert testimony carry the burden of
proving to the judge that the expert's
assessment of the situation is correct. . . .It
demands only that the proponent of the
evidence show that the expert's conclusion has
been arrived at in a scientifically sound and
methodologically reliable fashion.
Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85
(1st Cir. 1998).
We disagree with the defendant that another trial court's
decision regarding a different expert, United States v. Hines, 55
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F. Supp.2d 62 (D. Mass. 1999), compels us to find that the district
judge in this matter abused his discretion. The Hines opinion, of
course, has no binding effect. We are not faced here with the
question of whether the district court abused its discretion by
excluding, as in Hines, opinion testimony by a handwriting expert.
Nor do we know if the "particular facts and circumstances of the
particular case," Kumho Tire, 526 U.S. at 158, distinguish Hines.
Moreover, the district judge in this case specifically justified
his decision not to apply the Hines approach. He explained that
the reliability of the handwriting comparison testimony and the
expert's ultimate opinion on authorship were inevitably linked
because they were based on the same methodology. We find no abuse
of discretion in that ruling.
We also note that Rule 702 specifically allows qualified
experts to offer their opinions, a testimonial latitude generally
unavailable to other witnesses. See Kumho Tire, 526 U.S. at 148
(citing Daubert, 509 U.S. at 592). The rule affords experts this
leeway on the "assumption that the expert's opinion will have a
reliable basis in the knowledge and experience of his discipline."
Id. Accordingly, once a trial judge determines the reliability of
the proffered expert's methodology and the validity of his
reasoning, the expert should be permitted to testify as to the
inferences and conclusions he draws from it, and any flaws in his
opinion may be exposed through cross-examination or competing
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expert testimony. See Ruize-Troche, 161 F.3d at 85 (citing
Daubert, 509 U.S. at 590, 596). The district judge did not abuse
his discretion in admitting the expert's ultimate opinion on
authorship.
IV. DELAYED DISCLOSURE OF EVIDENCE
The defendant claims that he was denied a fair trial
because of the government's delayed disclosure of Sliker's
accidental out-of-court identification of Mooney. The defendant
also claims he was denied a fair trial because the government
delayed in disclosing the existence of a transcript of an
investigator's interview with co-conspirator Craig. To succeed on
these claims, the defendant must show "a plausible strategic option
which the delay foreclosed." United States v. Devin, 918 F.2d 280,
290 (1st Cir. 1990); see also United States v. Lemmerer, 277 F.3d
579, 588 (1st Cir. 2002) (stating that full application of the
standard articulated in Brady v. Maryland, 373 U.S. 83 (1963), was
not necessary in delayed disclosure cases "unless the defendant
first can show that defense counsel was 'prevented by the delay
from using the disclosed material effectively in preparing and
presenting the defendant's case.'") (citation omitted)). We review
a district court's delayed disclosure determinations for abuse of
discretion. See United States v. Joselyn, 99 F.3d 1182, 1996 (1st
Cir. 1996). We believe the defendant failed to show that the
government's delay foreclosed a strategic option.
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We turn first to the defendant's claims regarding
Sliker's identification. During his cross-examination of Sliker,
the defendant learned for the first time that Sliker observed the
defendant in handcuffs in the Portland police station. The
defendant then challenged the admissibility of Sliker's in-court
identification on the basis that it was tainted by an impermissibly
suggestive pretrial identification procedure, and he asked for a
mistrial. After a full voire dire hearing, the court ruled that
the pretrial identification was inadvertent and was not so
impermissibly suggestive that it created a substantial risk of
misidentification. In addition, the court held that even if the
pretrial identification was suggestive, the in-court identification
was otherwise reliable because of Sliker's "clear memory from the
time of the crime" of the defendant's eyes and facial features.
On appeal, Mooney claims that he was prejudiced by the
delayed disclosure of the pretrial identification because this
information could have been used to impeach Sliker's in-court
identification testimony. This argument is without merit. After
learning about the out-of-court encounter, the defendant could have
used this information to cast doubt on the reliability of Sliker's
in-court identification, but he chose not to pursue this strategy.
See United States v. Smith, 292 F.3d 90, 103 (1st Cir. 2002).
Accordingly, the defendant has not established that the delayed
disclosure prevented him from pursuing a strategic option.
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Equally unavailing is the defendant's claim that he was
unduly prejudiced by the delayed disclosure of the transcript of
cooperating witness Craig's statement to the police. Prior to his
cross-examination of Craig, the defendant only had the
investigator's report summarizing Craig's statement, and not the
actual transcript. While the report asserted that Craig said that
the defendant pressured him to commit the robbery, the transcript
revealed that Craig never made such a statement. Believing that
the report was accurate, the defendant used it to impeach Craig's
testimony denying that he had told an investigator that the
defendant pressured him to commit the offense.
At trial and again on appeal, the defendant argued that
he would have conducted his cross-examination differently had he
known about the transcript. "We have held that 'some showing of
prejudice [is] required beyond mere assertions that the defendant
would have conducted cross-examination differently.'" See Smith,
F.3d at 103 (quoting United States v. Walsh, 75 F.3d 1, 8 (1st Cir.
1996)). Moreover, the defendant was able to impeach Craig using
various other pieces of evidence; therefore the delay did not
foreclose a strategic option. See id. at 104. Finally, the judge
eliminated any prejudice from the defendant's line of questioning
with his limiting instruction. He told the jury:
You will recall that during Mr. Silverstein's
cross-examination, he inquired about alleged
inconsistencies between what . . . this
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witness supposedly told the Portland police
and what Mr. [McSweyn] indicated was
said . . .
Mr. Silverstein at the time of that
questioning by him had not been provided with
a transcript of that interview. The
government inadvertently failed to turn it
over to him as the government was required to
do. With that transcript in hand, Mr.
Silverstein may or may not have inquired about
contradictions, but the fact that he did so
was in no way his fault. The issue of
inconsistencies between various statements by
this witness, if you find any to exist, or
inconsistencies of any other witnesses is
entirely for you, as jurors, to decide.
In sum, we conclude that the defendant failed to make the
requisite showing of prejudice to warrant a new trial.
We affirm.
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