United States Court of Appeals
For the First Circuit
No. 04-1179
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICK O'SHEA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge.
Stephen Neyman, on brief, for appellant.
Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.
October 20, 2005
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-appellant Patrick
O'Shea was convicted after a jury trial of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He
now appeals, arguing that (1) there was insufficient evidence to
support the jury verdict, (2) the district court's jury instruction
on reasonable doubt constituted plain error, (3) the district court
abused its discretion in denying his motion to exclude certain
evidence, and (4) the district court erred in not striking, sua
sponte, certain statements made by the prosecution during closing
argument. We affirm.
I. Background
Because O'Shea was convicted, we review the facts in the
light most favorable to the verdict. See United States v. Mercado,
412 F.3d 243, 245 (1st Cir. 2005).
On January 22, 2002, shortly before 2:00 PM, Daniel Woods
("Woods") exited the Best Western Roundhouse Suites Hotel at 891
Massachusetts Avenue in Boston, Massachusetts. Woods got into his
car and made a call on his cellular phone. As he made the call, a
black sport utility vehicle ("SUV") pulled up behind his car and
blocked him in. A white male approximately twenty-eight to thirty-
one years old, with a shamrock tattoo on the right side of his
neck, and wearing a black nylon jacket, a dark cap, and blue jeans
got out of the driver's seat. The man approached the driver's side
of Woods car, pointed a shiny silver revolver at Woods's head
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through the open window and demanded "the hotel receipts." The man
also demanded that Woods open his trunk, and Woods complied. While
the man was searching the trunk, Woods observed a passenger in the
SUV. The man took around $100 from Woods, got back into the SUV,
and drove away with the passenger.
Woods, who had written down the SUV's license plate
number, immediately reported the robbery to the police, who radioed
the information to other officers. Less than one minute after
receiving the transmission, Boston police officers Richard
Rackauskas ("Rackauskas") and Edward Norton ("Norton") spotted the
SUV on Dorchester Avenue as they were traveling to the crime scene.
They followed the SUV and turned on their lights and sirens. The
SUV did not stop, and it eventually reached the intersection of
Buttonwood Street and Columbia Road, where it entered Columbia Road
going the wrong direction.1 The police officers followed but
stayed on the proper side of the road. The SUV was closest to
Rackauskas, who was driving the patrol car. The officers' car was
approximately four car lengths behind the SUV.
Columbia Road goes underneath Interstate 93 ("I-93") and
leads to a rotary. Just before the SUV reached the I-93 overpass,
Rackauskas observed the SUV's passenger stick his arm out the
window. The passenger's arm had gray clothing on it. Rackauskas
1
Columbia Road is a six-lane road with three lanes going in each
direction, separated by a median.
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saw a "silver metallic shiny object" in the passenger's hand and
observed the passenger waving his arm back and forth. He told
Norton that "he's throwing something, there's something hanging out
the window, he's got something out the window." Rackauskas only
saw the object for a few seconds, did not see anything come out of
the passenger's hand, and could not identify what the object was.
Norton testified that he never saw an object and did not recall
Rackauskas saying anything about such an object.
The officers lost sight of the SUV for about fifteen
seconds as it traveled underneath the overpass and entered the
rotary going clockwise, i.e., in the wrong direction.2 However,
they saw it emerging from the rotary onto Old Colony Avenue and
continued their pursuit. The occupants of the SUV abandoned the
vehicle outside the Maryellan McCormack housing projects and ran in
front of the patrol car -- which was between fifty to one hundred
yards away -- into the housing development. Rackauskas identified
the occupants as two white males: one wearing a black jacket, black
hat, blue jeans, and sneakers; the other wearing a blue and grey
sweatshirt, blue jeans, and sneakers. The men ran into an
apartment building at 433 Old Colony Avenue. Rackauskas and
Norton, joined by another policeman, Officer Daniel Ryan ("Ryan"),
saw the suspects enter the apartment building. All three officers
2
Since the SUV entered the rotary going clockwise, the passenger
side was closest to the rotary's interior, which is where the gun
at issue was eventually found.
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initially entered the building, but Rackauskas quickly exited to
cover the windows.
The two suspects entered the second floor apartment of
Ernest Washburn ("Washburn"), who was home at the time. As Norton
and Ryan banged on the door, one of the suspects begged Washburn
not to open the door. Washburn opened the door, however, and the
suspects jumped out of a window into the courtyard below. In the
meantime, Rackauskas had gone around to the back of the building
where the courtyard was located. He saw O'Shea, who was dressed in
a blue and grey sweatshirt, jeans, and sneakers, limping.
Rackauskas ordered O'Shea to stop. O'Shea initially did not obey
but eventually surrendered. Soon afterwards, the officers found
the other suspect, Kevin Kelley ("Kelley"), in a nearby apartment
building. Kelly was wearing a black jacket, had a tattoo on his
neck, and was also limping.
Because the dispatch had reported that a silver handgun
was used in the robbery, the police searched Kelley and O'Shea, the
Maryellan McCormick housing project, and the SUV for the weapon.
They did not find a firearm, but found an empty holster in plain
view sitting by the center console between the two front seats.
Rackauskas directed another policeman, Officer Robert Lucas
("Lucas"), to search the area around I-93 leading to the rotary.
Officer Lucas searched the interior island of the rotary and found
a silver handgun laying on the ground with nothing on top of it.
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On March 26, 2003, a grand jury issued a superseding
indictment charging O'Shea with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). To convict under § 922
(g), a jury must to find that a defendant (1) has previously been
convicted of a crime punishable by a term of imprisonment exceeding
one year, and (2) has knowingly possessed a firearm, (3) that was
in or affected interstate commerce. See United States v.
Carpenter, 403 F.3d 9, 10 (1st Cir. 2005). The parties stipulated
that O'Shea was a felon and that the gun found at the rotary had
traveled in interstate commerce. The only issue at trial therefore
was whether O'Shea had knowingly possessed the firearm.
After a four-day trial in the United States District
Court for the District of Massachusetts, a jury convicted O'Shea.
On January 16, 2004, the district court sentenced O'Shea to 180
months imprisonment. O'Shea appealed on January 27, 2004.
II. Discussion
A. Sufficiency of the Evidence
At the close of evidence, O'Shea filed a motion for
judgment of acquittal pursuant to Fed. R. Crim. P. 29(a), arguing
that the evidence was insufficient to prove that he had knowingly
and intentionally possessed the firearm. The district court denied
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the motion.3 After the jury verdict, O'Shea again filed a Rule 29
motion, which the district court denied.
We review de novo the denial of a Rule 29 motion for
acquittal. United States v. Mercado Irizarry, 404 F.3d 497, 503
(1st Cir. 2005). "In doing so we must decide, viewing the evidence
in the light most favorable to the verdict of guilt, whether a
reasonable factfinder could find the defendant guilty of the crime
beyond a reasonable doubt." Id. This standard of review is
"formidable," United States v. Loder, 23 F.3d 586, 589 (1st Cir.
1994), and "[d]efendants challenging convictions for insufficiency
of evidence face an uphill battle on appeal." United States v.
Hernández, 218 F.3d 58, 64 (1st Cir. 2000). In our review of Rule
29 determinations, "'no premium is placed upon direct as opposed to
circumstantial evidence; both types of proof can adequately ground
a conviction.'" Id. (quoting United States v. Ortiz, 966 F.2d 707,
711 (1st Cir. 1992)).
O'Shea argues that the district court erred in denying
his Rule 29 motions because there is no evidence, direct or
circumstantial, to support his conviction. He asserts that,
although he was observed in the passenger seat of the SUV, there
was no evidence linking him to the initial robbery at the Best
3
The district court did rule that the evidence was insufficient
to find that O'Shea constructively possessed the firearm during the
robbery, which was one of the government's theories of the case.
Accordingly, the district court only instructed the jury on actual
possession.
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Western, he was never seen with the gun in his hand, and the silver
object seen by Rackauskas could have been anything, something
Rackauskas admitted on cross-examination. O'Shea also notes that
the gun was located "a good distance" from where Rackauskas
observed the shiny metal object in the SUV passenger's hand.
The government argues that there was ample evidence for
the jury to conclude that O'Shea was with Kelley when Kelley robbed
Woods and that O'Shea threw the silver firearm used in the robbery
out the SUV's window as the police chased him and Kelley. We agree
that the government has proven its case. There was sufficient
evidence for the jury to conclude beyond a reasonable doubt that
O'Shea possessed the firearm in the SUV.
The evidence supports the conclusion that O'Shea was the
passenger in the SUV when Kelley robbed Woods with a silver
handgun. Woods testified that he saw a passenger in the SUV as he
was being robbed and that he called the police as soon as the SUV
drove off. The report was immediately sent to officers over the
radio, and Rackauskas and Norton spotted the SUV less than one
minute after receiving the dispatch. It was reasonable for the
jury to conclude that the passenger in the SUV when Woods was
robbed was the same passenger in the SUV when the officers spotted
the vehicle minutes later.
Thus, it was also reasonable for the jury to conclude
that this was the same passenger whom Rackauskas saw wave his arm
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out the window while holding a shiny metallic object, and the same
passenger the officers saw exit the SUV and run into the housing
project. And it was reasonable for the jury to conclude that
O'Shea, who was apprehended beneath the window the two suspects had
jumped out of, was limping, and was wearing the same clothes as the
man whom the officers observed running from the SUV, was this same
passenger.
Against this backdrop, it was also reasonable for the
jury to conclude that the gun found on the rotary island was the
same gun used during the robbery. The parties do not dispute that
a shiny silver revolver was used during the robbery, or that the
gun found at the rotary was a shiny silver revolver. After their
apprehension, a silver revolver was not found on either of the
suspects, in the housing project, or in the SUV, even though an
empty holster was found in the SUV. In light of these facts, it
was reasonable for the jury to conclude that the suspects rid
themselves of the firearm sometime between the robbery and when
they exited the SUV outside of the housing project. This would
leave two possibilities: (1) that the suspects disposed of the
firearm after the robbery but before they were spotted by the
police -- a dubious conclusion since the suspects would have had no
motive to dispose of the firearm at that time; or (2) that the
suspects disposed of the firearm after they were spotted, but did
so when the officers were unable to see them. Under this latter
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possibility, the jury could have reasonably concluded that the
suspects disposed of the firearm either somewhere in the housing
projects or during the period when the officers lost sight of the
SUV once it entered the I-93 underpass. However, a search of the
housing project turned up nothing, while a search of the area where
the suspects were when the police briefly lost sight of them
revealed a shiny silver revolver. This revolver was found on the
rotary island in the middle of the day, uncovered by any trash or
debris; in short, it did not appear to have been sitting there for
a long period of time. The jury could have reasonably concluded
that this was the same revolver used during the robbery earlier
that day.
The jury also must have concluded that O'Shea possessed
this revolver. We believe it could reasonably have done so.
First, Rackauskas testified that he saw the passenger's arm out the
window holding a shiny silver object. O'Shea points out that
Norton testified that he never saw the passenger throw an object
from the car, never saw the SUV's window go up or down, and never
saw a shiny silver object, even though he was the passenger and
could pay more attention to the SUV than Rackauskas, who was
driving. However, Norton testified that he was handling the radio
and watching cars in front of the patrol car and therefore did not
have his eyes on the SUV the entire time. Further, Rackauskas
testified that he saw the metallic object for only a couple of
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seconds. The jury could easily have inferred that Norton simply
was not looking in the few seconds that Rackauskas observed the
metallic object.
O'Shea also makes much of the fact that Rackauskas saw
the object before the SUV went beneath the overpass, while the
revolver was found on the other side of the overpass on the rotary
island. However, as Rackauskas testified, the time from when the
officers lost sight of the SUV to the time they saw it again
exiting the rotary spanned only fifteen seconds. Further, it makes
sense that O'Shea would have disposed of the firearm at a time when
the police could not see the SUV. It also makes sense that he
would have disposed of the gun on the rotary island, hoping the
grass would hide the gun, rather than simply tossing it into the
street. Finally, the fact that the SUV entered the rotary going
clockwise means that the rotary grass was on the passenger side of
the SUV and therefore nearest O'Shea. The jury could have
reasonably concluded that, in the fifteen-second window during
which the police were out of sight, O'Shea tossed the gun into the
rotary grass that was right next to his side of the car.
O'Shea also points out that Rackauskas admitted that the
silver object could have been anything, including a cell phone
found after the suspects' arrest. He states that it is "most
compelling" that during deliberations the jury sent a note asking
the judge where the cell phone was found. However, as the
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government notes, the cell phone was dark grey and plastic, not
shiny and silver. Further, the fact that the jury sent the note
but still convicted O'Shea simply indicates that the jury was doing
its job. It considered O'Shea's theory that the object could have
been a cell phone but rejected it.
O'Shea devotes considerable attention to our decision in
United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995).
However, we do not believe that case is helpful to O'Shea.
Luciano-Mosquera involved several defendants engaged in a drug
smuggling operation. The police conducted a sting operation and
two of the defendants, Luciano-Mosquera and Pava-Buelba, were found
under a jeep that had a M-16 concealed in the chassis. Another
defendant, Lugo-Maya, was captured on a yawl as he headed out to
sea. The yawl was found to have 50 rounds of ammunition. All of
the appellants were convicted of possessing firearms during or in
relation to a drug trafficking crime. We reversed the convictions
of Pava-Buelba and Lugo-Maya, finding that there was no evidence
either of them had possessed the gun. The facts of the instant
case are quite different, however. As we have already discussed,
it was reasonable for the jury to conclude that O'Shea was the
passenger in the SUV during the robbery, that the gun found at the
rotary was the gun used during the robbery, that the gun found at
the rotary was the shiny silver object Rackauskas saw in O'Shea's
hand just before the SUV went under I-93, and that O'Shea threw the
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gun into the rotary grass in the roughly fifteen-second window in
which the police lost sight of the SUV. We therefore affirm the
district court's denial of O'Shea's Rule 29 motions.
B. The District Court's Reasonable Doubt Instruction
O'Shea next challenges the district court's jury
instructions on reasonable doubt. Because he did not object to the
instructions during his trial, we review for plain error. See,
United States v. Rodríguez-Marrero, 390 F.3d 1, 25 (1st Cir. 2004).
Under plain error review, O'Shea must show that (1) there was an
error (2) that was clear or obvious, (3) affected his substantial
rights, and (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings. See United States v.
Medina-Martínez, 396 F.3d 1, 8 (1st Cir. 2005).
While we have warned against attempts to define
"reasonable doubt," noting that "most efforts at clarification
result in further obfuscation of the concept[,] . . . a district
court does not necessarily commit reversible error by attempting to
define the concept of reasonable doubt for the jury." United
States v. Andújar, 49 F.3d 16, 23 (1st Cir. 1995) (internal
quotation marks and citation omitted). Instead, reasonable doubt
instructions constitute reversible error "when, taken as a whole,
they have a 'reasonable likelihood' of misleading the jury to
believe that it can convict on some lesser standard of proof than
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that required under the reasonable doubt standard." United States
v. Romero, 32 F.3d 641, 651 (1st Cir. 1994).
In the instant case, the jury instructions at issue read
as follows:
Now, I've told you that the burden of proof is
on the government to prove the defendant is
guilty beyond a reasonable doubt. The burden
of proof has nothing to do with who called the
witnesses or offered documents into evidence.
It goes to the quality of the evidence.
And now I'm going to explain to you in more
detail this concept of reasonable doubt.
It is a strict and heavy burden, but it does
not mean that a defendant's guilt must be
proved beyond all possible doubt. It does
require that the evidence exclude any
reasonable doubt concerning a defendant's
guilt. A reasonable doubt may arise not only
from the evidence produced, but also from the
lack of evidence.
Reasonable doubt exists when after weighing
and considering all of the evidence, using
reason, common sense, jurors cannot say that
they have a settled conviction of the truth of
the charge. Of course, a defendant is never
to be convicted on suspicion or conjecture.
If, for example, you view the evidence in the
case as reasonably permitting either of two
conclusions, one, that the defendant is guilty
as charged, and the other that the defendant
is not guilty, you will find the defendant not
guilty.
(emphasis added). O'Shea takes issue with the three emphasized
portions of the instructions, arguing that they likely misled the
jury as to the proper standard of proof.
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As to the first portion, we find no error, and certainly
no error that was clear or obvious. O'Shea argues that the
instruction regarding "the quality of evidence" put on onus on the
defendant to present evidence. We disagree. If anything, the jury
would have interpreted the instruction as having the opposite
effect. First, the sentence that the burden "has nothing to do
with who called witnesses or offered documents in evidence"
indicates that the jury should not consider who put on evidence,
but only the evidence itself, meaning that it should not consider
the fact that O'Shea did not introduce any evidence. Further,
considering other portions of the instruction, there was no
likelihood that the jury misunderstood the government's burden.
See United States v. Ranney, 298 F.3d 74, 80 (1st Cir. 2002)
(stating that, even if a district court gave an improper jury
instruction, "we will affirm if in the light of the entire jury
charge there was no 'reasonable likelihood' that the jury
misunderstood the government's burden"). Elsewhere, the district
court stated that O'Shea had no obligation to "prove his
innocence," and also specifically stated that O'Shea was not
required "to produce any evidence at all."
O'Shea's next argument is that the sentence "[a]
reasonable doubt may arise . . . from the lack of evidence"
indicated to the jury that it could consider the fact that O'Shea
did not present any evidence when considering reasonable doubt. We
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disagree, essentially for the same reasons as above. If anything,
the jury would likely have interpreted that instruction as meaning
that a reasonable doubt could arise from evidence the government
did not present.4 It would make no sense if the instruction meant
that a reasonable doubt as to O'Shea's guilt could arise as a
result of O'Shea's lack of evidence. In any event, the district
court made it clear elsewhere in the instructions that O'Shea did
not have to prove anything and did not have to put on any evidence.
We therefore find no plain error.
Finally, O'Shea argues that the district court's "two
conclusions" instruction comparing guilt and non-guilt lowered the
government's burden of proof to a civil preponderance of the
evidence standard. See Andújar, 49 F.3d at 24 (stating that "due
to the risks of misleading the jury, district courts should refrain
wherever possible from using a 'guilt or innocence' comparison in
their jury instructions"). The district court in the instant case
referred to guilt or non-guilt, not guilt or innocence. As we
noted in Ranney, where a court refers "to guilt and non-guilt,
rather than innocence, a term less susceptible to the lay response,
we find the instruction less troublesome." 298 F.3d at 79.
"Nevertheless, telling jurors that the question is one of guilt or
non-guilt, without more, could risk undercutting the government's
4
For example, the government was unable to present direct
testimony that O'Shea threw the gun out of the SUV.
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burden by suggesting that the defendant is guilty if they do not
think he is not guilty." Id. at 79-80.
Ranney involved a jury instruction very similar to the
one at issue here. Id. at 79. There, the district court "repeated
its instruction that the government was required to prove guilt
'beyond a reasonable doubt' on some twenty-three occasions." Id.
at 80. We affirmed because, taking the jury instructions as a
whole, there was no reasonable likelihood that the jury failed to
understand the government's burden of proof. Id.5 In the instant
case, the district court stated that the government was required to
prove O'Shea's guilt beyond a reasonable doubt at least nineteen
times. Further, the district court gave a careful and cogent
discussion of the presumption of innocence, made it clear that
O'Shea did not have to prove anything or present any evidence, and
stated on at least three occasions that the jury could not consider
the fact that O'Shea did not testify. See Andújar, 49 F.3d at 24.
The district court also stated that "[i]t is not sufficient for the
government to establish a probability, although a strong one, that
a fact charged is more likely than not. That is not enough to meet
the burden of proof beyond a reasonable doubt." This statement
decreased the likelihood that the jury would have mistakenly
5
In Ranney, we affirmed even though we were reviewing under the
less stringent abuse of discretion standard because the defendant
had objected to the instruction. Id. Here, we are reviewing for
plain error.
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believed that the government's burden of proof was a civil
preponderance standard. Taken as a whole, the jury instructions
leave no reasonable likelihood that the jury misunderstood the
government's burden. We find no plain error in the district
court's instructions.
C. Evidence of the Robbery
O'Shea's third argument is that the district court erred
when it admitted evidence of the robbery because it was not
relevant and was unduly prejudicial. The government counters that
the district court properly admitted the evidence because the
evidence was highly relevant and its probative value substantially
outweighed any prejudice to O'Shea.
Prior to trial, O'Shea filed a motion in limine to
exclude any evidence pertaining to the robbery of Woods. In the
motion, O'Shea argued that evidence of the robbery was not relevant
under Fed. R. Evid. 401 and that, even if relevant, the evidence's
probative value was substantially outweighed by its prejudicial
effect under Fed. R. Evid. 403. In denying the motion, the
district court stated that
I find that, generally, the armed robbery is
relevant to proving that there was a gun in
the SUV, creates an opportunity for Mr. O'Shea
to possess that gun actually or
constructively. It's also relevant to the
credibility of the police officers' testimony
regarding seeing a silver object held outside
the passenger side of the vehicle and the
government's claim that the gun found on the
roadway was previously in the SUV.
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. . .
I don't think that the 911 call alone would be
sufficient because . . . the testimony that
Kelley was the driver in a circumstance where
it is now alleged there were two people in the
car -- as I recall, the 911 call didn't
discuss a second person -- is relevant to
prove that if Kelley was the driver, O'Shea
was the passenger, and if Rackauskas is to be
believed and something silver was held out the
window and the jury concludes that silver
thing was the gun that was later found, it
provides relevant and potentially important
evidence that Mr. O'Shea was the passenger and
the person who held the gun out the window
and, therefore, possessed it.
The district court also gave a limiting instruction to
the jury making it clear that the jury could not convict O'Shea
solely because they believed that he was present at the robbery:
"Mr. O'Shea is not charged with participating in a robbery . . .
And you're not being asked did he participate in a robbery or was
he present for the robbery? You're being asked whether the
government has proved beyond a reasonable doubt that he possessed
the firearm described in the indictment."
We review a district court's decision to admit evidence
for abuse of discretion. See United States v. Flemmi, 402 F.3d 79,
86 (1st Cir. 2005). The district court in this case did not abuse
its discretion in admitting evidence of the robbery.
O'Shea's first argument is that evidence of the robbery
was in no way relevant to the issue of whether he possessed a
firearm. We disagree. Under the Federal Rules of Evidence,
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"'[r]elevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." Fed. R. Evid. 401. As the
district court noted, evidence of the robbery was relevant to
proving that there was a gun in the SUV and created an opportunity
for O'Shea to actually possess the gun. It was also relevant to
the government's claim that the gun found on the rotary was in the
SUV. Further, the evidence of the robbery was relevant to
Rackauskas's credibility regarding his testimony that he saw a
silver object held outside the passenger side of the SUV. In other
words, evidence of the robbery makes it more likely than not that
O'Shea was the passenger in the SUV, had the opportunity to possess
the gun, and had the motive and opportunity to throw the gun from
the SUV onto the rotary.6 We therefore agree with the district
court that evidence of the robbery was relevant.
O'Shea's second argument is that the admitted evidence's
probative value was substantially outweighed by its prejudicial
effects. See Fed. R. Evid. 403. We have stated that "[o]nly
rarely -- and in extraordinarily compelling circumstances -- will
6
As the government notes, O'Shea's brief basically concedes this
point. In arguing that the evidence was unduly prejudicial, O'Shea
states that "it requires much less a stretch of one's imagine [sic]
to deduce the unproven suggestions that Kelley's accomplice was a
participant in the armed robbery, and being aware of the gun
attempted to dispose of the same."
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we, from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect." Flemmi, 402 F.3d 79, 86
(internal quotation marks and citation omitted). O'Shea's case
does not present such an extraordinarily compelling circumstance.
We acknowledge that the evidence of the robbery was
certainly prejudicial to O'Shea. However, that is not enough. We
have stated that "[v]irtually all evidence is prejudicial -- if the
truth be told, that is almost always why the proponent seeks to
introduce it -- but it is only unfair prejudice against which the
law protects." United States v. Pinillos-Prieto, 419 F.3d 61, 72
(1st Cir. 2005) (internal quotation marks and citation omitted)
(emphasis in original). We do not think that any unfair prejudice
occurred here, especially given the district court's instructions
to the jury. As we noted above, the district court expressly
instructed the jury that O'Shea was not being charged with the
robbery and that the only way the jury could convict him was to
find beyond a reasonable doubt that he possessed a firearm. We
believe that these instructions limited the risk of unfair
prejudice to O'Shea. See United States v. Taylor, 284 F.3d 95, 104
(1st Cir. 2002). We therefore affirm the district court's decision
to admit evidence of the robbery.
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D. Prosecutor's Closing Remarks
O'Shea's final argument is that the district court
committed plain error7 in not striking portions of the prosecutor's
closing remark because they focused on matters not in evidence that
likely affected the trial's outcome. Specifically, O'Shea argues
that the prosecutor improperly focused on O'Shea's involvement with
Kelley in the robbery of Woods. O'Shea points to twelve statements
by the prosecutor which linked O'Shea to Kelley and the robbery of
Woods. According to O'Shea, "there is absolutely no evidence of
his [O'Shea's] involvement in the robbery." We disagree.
While "[i]t is well settled that in its closing argument
the prosecution may not rely on knowledge or evidence unavailable
to the jury . . . the prosecutor may attempt to persuade the jury
to draw inferences from the evidence." United States v. Hamie, 165
F.3d 80, 84 (1st Cir. 1999) (internal citation omitted). The
instant case presents an example of the latter situation. While
there was no direct evidence linking O'Shea to the robbery, there
was ample circumstantial evidence, including the testimony of
Woods, the police officers, and Washburn, from which the jury could
have inferred that O'Shea was present at the robbery.8 The
7
O'Shea did not object to the statements at trial, which is why
he now argues for plain error.
8
We have already recounted this evidence in our discussion of
O'Shea's sufficiency of the evidence challenge.
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government was entitled to attempt to persuade the jury to draw
certain inferences from that evidence.
O'Shea also argues that "[g]iven the lack of evidence
linking O'Shea to the gun near the rotary, it is likely that the
jury convicted for possession at the hotel rather than possession
during the chase." However, this argument is muted by the district
court's instruction that "Mr. O'Shea is not charged with
participating in a robbery . . . And you're not being asked did he
participate in a robbery or was he present for the robbery? You're
being asked whether the government has proved beyond a reasonable
doubt that he possessed the firearm described in the indictment."
In sum, we do not find any plain error in the
prosecutor's closing remarks. We therefore reject O'Shea's
arguments on this issue.
III. Conclusion
For the foregoing reasons, we affirm O'Shea's conviction.
Affirmed.
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