United States Court of Appeals
For the First Circuit
No. 04-2099
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN M. PANICO, a/k/a TONY, J.P.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert F. Benson, Jr. with whom Torres, Benson & Guarino, P.C.
was on brief for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
January 19, 2006
BOUDIN, Chief Judge. John Panico, the defendant-
appellant in this case, was tried in the district court on charges
of conspiracy to collect debts by extortionate means, 18 U.S.C. §
894 (2000), collecting a debt by such means, id., and using a
firearm in aid of a crime of violence, id. § 924(c). He was
convicted on the first two counts, acquitted on the third, and
sentenced to 57 months of imprisonment.
Key evidence at the trial included FBI tape recordings of
calls made by or to the victim of the threats, Thomas Andrews. In
one set, threats were made to Andrews by a man known to Andrews as
"Tony G."; in the others, one Joe Auciello, a friend of Andrews who
was the intermediary between Andrews and Tony G., relayed threats
purportedly on behalf of Tony G. The government argued that "Tony
G." was in fact John Panico.
Initially, the recordings were offered during the
testimony of an FBI agent who identified two of the voices as those
of Andrews and Auciello; but the agent could not identify the third
voice. The tapes were admitted subject to later connection, and in
due course, two state policemen identified the third voice as
Panico's; one of the officers had known Panico from childhood and
the other had heard him speak five or six times in the period
preceding the trial.
Panico, who did not object to the authentication of the
tapes at trial, argues on appeal that their admission was plain
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error. He argues that during the investigation, the FBI asked the
two state troopers to identify the third voice as that of Panico–-
rather than, say, merely to identify the voice.1 There is no
suggestion that the FBI asked the troopers to lie--merely that the
FBI's procedure impermissibly suggested the desired answer and so
tainted the later courtroom identification under Manson v.
Brathwaite, 432 U.S. 98 (1977).
The admission of the evidence was not error at all, let
alone plain error under the Olano standard. United States v.
Olano, 507 U.S. 725, 733-34 (1993). It is not enough to bar an
identification, either of voices or of faces, that the procedures
were "suggestive"; it must also be shown that, under the "totality
of the circumstances," the identification was "unreliable." Neil
v. Biggers, 409 U.S. 188, 196-98 (1972); see also United States v.
Gilbert, 181 F.3d 152, 163 (1st Cir. 1999).
Lay witness identification, based on the witness' prior
familiarity with a voice, is a commonplace way in which voices are
identified. See Fed. R. Evid. 901(b)(5); 5 Weinstein's Federal
Evidence § 901.06[1] (2005). In this case, both troopers had heard
Panico's voice before; one of them had known him since childhood.
There is no indication that either trooper had any incentive to
1
Just how the identifications were elicited by the FBI during
the investigation is not crystal clear. At trial, when asked if he
knew he was going in to identify Panico's voice, the lead trooper
replied, "At some point, I guess I did. Yes."
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misrepresent; indeed, they were not even responsible for the
investigation. And, of course, there were two witnesses--one
bolstering the other.
The more neutral the protocol, the more weight the
identification may carry with the jury. But the party seeking to
discredit evidence is free to bring out anything that may lessen
the weight to be accorded, Manson, 432 U.S. at 116, as defense
counsel did in this case. Only in an extreme case, where the
identification procedure creates a "very substantial likelihood of
irreparable misidentification," will the evidence be excluded on
due process grounds. United States v. Henderson, 320 F.3d 92, 100
(1st Cir. 2003), cert. denied, 539 U.S. 936 (2003) (quoting United
States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993)).
Nothing like that is present in this case.
As it happens, at trial Auciello also identified the
third voice as that of Panico and testified that he (Auciello) was
physically present with Panico during one of the recorded calls
between Andrews and Tony G. We mention this point last only to
emphasize that the troopers' evidence was independently admissible
regardless of Auciello's independent corroboration, and that there
was no error at all under the Manson line of decisions.
Next, Panico argues that the prosecutor made false and
misleading statements to the jury during closing argument,
entitling Panico to a new trial. No objection was made at the
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time, so the review is for plain error. United States v. Medina,
427 F.3d 88, 91 (1st Cir. 2005). In the relevant portion of the
closing argument, set forth below, the reader should focus on the
reference to Panico as one of the three "witnesses" who establish
Panico's guilt.
The evidence in this case points in one
direction. It points in the direction of this
man here, the defendant, John Panico. And the
evidence shows beyond any reasonable doubt
that [he's] guilty as he's charged.
In particular, I want to talk to you about
three different witnesses who have testified
during the course of this trial. Because
those three witnesses all tell you the same
three things. And those three things all show
that the defendant is guilty of each of the
three charges against him.
So, who were the witnesses? What are the
three things they tell you? And what are the
three counts that those three things prove?
The three witnesses are Tom Andrews, Joey
Auciello and the defendant himself, John
Panico. The three things they tell you--that
Tom Andrews owed a gambling debt to Joey
Auciello and John Panico. And he didn't pay
that debt. When he didn't pay that debt, they
also tell you that Joey Auciello and John
Panico, together and separately, threatened
Tom Andrews. And the third [thing] they tell
you is that when the threats didn't work, John
Panico used a gun to try to collect that
gambling debt.
Panico asserts that the description of him as a "witness"
was improper both because it was inaccurate--Panico did not testify
at all at the trial--and because it highlighted Panico's decision
not to testify, thereby amounting to a forbidden comment by the
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prosecutor "on the accused's silence." Griffin v. California, 380
U.S. 609, 615 (1965).
The prosecutor's statement was assuredly a rhetorical
device, possibly ill-chosen, designed to stress that Panico's tape-
recorded threats were evidence against him and in his own voice--
even though not uttered as a trial witness. Certainly, in this
short trial, there is no likelihood that the jury would have
thought that Panico had in fact testified as a witness and so been
misled into thinking that the metaphorical phrasing was literal
truth. Thus, the "inaccuracy" charge has little bite.
Paradoxically, Panico's alternative claim under Griffin
rests upon an opposite reading, i.e., that the reference to Panico
as a "witness" was not a literal inaccuracy, but instead an ironic
comment on Panico's failure to testify as a witness. "A
prosecutor's remarks violate a defendant's Fifth Amendment
guarantee against self-incrimination if 'in the circumstances of
the particular case, the language used was manifestly intended or
was of such a character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused
to testify.'" United States v. Wilkerson, 411 F.3d 1, 8-9 (1st
Cir. 2005) (quoting United States v. Wihbey, 75 F.3d 761, 769 (1st
Cir. 1996)).
The prosecutor here made no direct reference to Panico's
failure to testify, nor is the "ironic" meaning self-evident; this
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was not language that a jury would "naturally and necessarily" take
to be a forbidden comment. Nothing indicates that the prosecutor
"manifestly intended" his closing as a comment on Panico's failure
to testify--an intention that would obviously be improper under
Griffin (as well as foolish, since the jury usually notices whether
or not the defendant testifies).
If Panico's counsel had objected, there is a reasonable
likelihood that the judge would have cautioned the jury, which is
one reason why contemporaneous objections are required. That
counsel did not object is some indication that neither of the two
newly suggested flawed meanings was readily apparent. In all
events, the closing--if error at all--was a minor slip that was
neither "plain" error nor capable of altering the result in the
teeth of very strong evidence against Panico provided by the tapes
backed by three voice identifications.
Finally, Panico says that the case should be remanded for
resentencing in light of United States v. Booker, 125 S. Ct. 738
(2005). The district judge made clear by his remarks at sentencing
that he would give a lower sentence (he described the alternatives)
if the sentencing guidelines were loosened or abolished. The
Booker claim was preserved, and this is a clear case for a remand
for resentencing, see United States v. Antonakopoulos, 399 F.3d 68,
81 (1st Cir. 2005). The government, quite properly, does not
object to resentencing.
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The conviction is affirmed, the sentence is vacated and
the matter is remanded to the district court for resentencing.
It is so ordered.
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