United States Court of Appeals
For the First Circuit
No. 05-2000
UNITED STATES OF AMERICA,
Appellee,
v.
LIONEL CORMIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Dennis A. Murphy, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
November 17, 2006
TORRUELLA, Circuit Judge. Lionel Cormier ("Cormier") was
convicted of possession with intent to distribute a controlled
substance in violation of 18 U.S.C. § 841(a), conspiracy to
distribute a controlled substance in violation of 18 U.S.C. § 846,
possession of a firearm during a drug-trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(a)(ii), and being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g) and
924(e). Cormier appeals his conviction. After careful
consideration, we affirm.
I. Background
In early 2003, Cormier met with his friend David Finch
("Finch") and began to discuss plans to rob drug dealers and
purchase guns. Cormier also met with Stephen Depka ("Depka"), with
whom he discussed a proposal to transport marijuana from Maine to
Massachusetts. Depka refused the proposal. Cormier nevertheless
began investigating potential robbery targets.
The Darragh Robbery
Finch's then-girlfriend, Tracy Paquette ("Paquette"),
suggested to Cormier that he rob Michael Darragh ("Darragh"), whom
she believed to be a drug dealer and whose house was located in
Maine. Paquette called a friend, Winston Hanson ("Hanson"), to
verify that Darragh had drugs in his house. Hanson confirmed that
Darragh did, in fact, possess drugs. Cormier later decided to
include Hanson in the robbery plans.
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Around midnight on March 23, 2003, Cormier, Finch, and
Hanson robbed Darragh's house. Finch and Cormier put on ski masks
and gloves and broke into Darragh's house; Hanson stayed in the car
as a lookout. Cormier and Finch found Darragh inside his house.
When confronted with a gun, Darragh told Cormier and Finch that his
drugs were in his jacket pocket. Finch removed 20 to 30 Oxycontin
pills, "some" Percocet pills, walkie-talkies and knives from the
jacket. Finch also took $800-$900 in cash. After the robbery,
Cormier, Finch, and Hanson returned to Hanson's home. There was
general agreement among witnesses at trial that Cormier took all of
the money. In addition, Finch testified at trial that Cormier
traded pills to Hanson for marijuana, whereas Hanson testified that
Cormier paid for the marijuana in cash. After the Darragh robbery,
Cormier had an acquaintance purchase a Ruger .454 Magnum gun for
him.
The Kane Robbery
The second robbery took place on June 11, 2003, also in
Maine, at the house of Steve Kane, a drug dealer known to Cormier.
Cormier and Finch obtained the help of Michael Gleason ("Gleason")
for the robbery; Hanson was no longer involved. Paquette drove
Gleason and Cormier to Kane's house, armed with the Ruger .454
Magnum, ski masks, gloves, and zip ties, as well as walkie-talkies,
which were to be used to contact Finch at the conclusion of the
robbery. Cormier and Gleason entered Kane's house, but found
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nobody at home. Gleason searched the house and discovered a rifle
and a handgun, which he took. Cormier and Gleason then waited for
Kane to come home. Kane arrived at his house carrying a duffel
bag. Cormier and Gleason confronted Kane, and told him that they
wanted his money and marijuana. Gleason took five pounds of
marijuana from Kane's duffel bag and $500 from Kane's truck.
Cormier and Gleason then fled. Finch picked up Cormier and Gleason
in a cemetery near Kane's home. Upon returning to Finch's home,
the proceeds of the robbery were divided. Cormier allocated to
Finch and Paquette1 one pound of the stolen marijuana to share and
divided the remainder between himself and Gleason. Cormier, Finch,
and Gleason then proceeded to smoke some of the marijuana.
The Dyer Robbery
The third robbery took place a few hours after the Kane
robbery. Cormier had heard that Tom Dyer ("Dyer") had previously
been arrested for possession of large amounts of marijuana and
believed that Dyer would likely have drugs at his house. Finch
drove Cormier and Gleason in Paquette's car to Dyer's home. Upon
arriving, Cormier, Finch, and Gleason congregated in front of
Dyer's house discussing their plans. Dyer awoke and went to
investigate. Cormier broke the front window with his gun, reached
in to unlock the door, and entered the house. Dyer yelled that he
1
There is some conflict in the testimony as to whether Paquette
received a share of the marijuana directly from Cormier.
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was going to call the police. The police arrived, and Cormier,
Gleason and Finch scattered.
Gleason was apprehended shortly after police arrived.
Finch spent the night in the woods by Dyer's house, but was
apprehended the next morning. Paquette's car was discovered near
Dyer's home; after Paquette consented to a search of it, wallets
belonging to Gleason and Finch, as well as gloves and walkie-
talkies were found therein. Cormier escaped by stealing a canoe,
paddling across a lake, and walking to a donut shop, where he
called his girlfriend to pick him up. Cormier called Paquette the
morning following the attempted robbery of Dyer and instructed her
to give Finch, Gleason, and himself their respective shares of
marijuana as per their discussion the previous night, and that
Gleason's share should go to Jeff Simpson ("Simpson") to pay for
Gleason's bail. Cormier also instructed Paquette that a man would
come to collect his share of the marijuana and guns, which were
left in a bag. Five days after the robbery, Vincent Andrews
("Andrews"), an acquaintance of Cormier, arrived at Paquette's
house to collect Cormier's bag. Andrews testified at trial that
Cormier had paid him $50 to retrieve the bag, but that he never
looked inside it. A year after the attempted Dyer robbery, Cormier
was arrested and charged with possession of a controlled substance
with intent to distribute, conspiracy to distribute a controlled
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substance, possession of a firearm during a drug trafficking
offense, and being a felon in possession of a firearm.
Motion to Exclude the ATF Agent's Testimony
Prior to trial, the Government notified Cormier that it
would offer Brent McSweyn ("McSweyn"), an Alcohol Tobacco and
Firearms agent, to testify as an expert regarding whether the guns
used in the crimes had passed through interstate commerce.2
Cormier made a motion in limine to exclude McSweyn's testimony. In
response, the Government explained that McSweyn had testified
before as an "interstate nexus expert," and had toured gun
manufacturing facilities, spoken with manufacturers, and consulted
reference materials. McSweyn submitted a written "Interstate Nexus
Statement" in response to Cormier's motion, in which McSweyn stated
that the firearms charged in the indictment were manufactured
outside of Maine (and thus had traveled in interstate commerce).
The statement indicated that McSweyn had inspected the Ruger .454
Magnum and compared it with manufacturing records, two reference
texts, and his observations in manufacturing plants. The statement
further indicated that McSweyn had compared a written description
of the rifle, including model, caliber, and serial number, with
manufacturing reports and reference texts. Lastly, the statement
2
21 U.S.C. § 922(g) criminalizes possession, by a felon, of a
firearm "which has been shipped or transported in interstate
commerce." Thus, whether the gun has crossed state lines is an
element of the offense.
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indicated that McSweyn had compared a written description of the
handgun with manufacturing reports, reference texts, observations
in manufacturing plants, and a firearms trace report. The court
tentatively overruled Cormier's objections to McSweyn's testimony,
but allowed Cormier to voir dire him. During voir dire, McSweyn
testified that the gun manufacturer records he relied upon were not
available to the public. After Cormier concluded the voir dire,
the court reaffirmed its denial of Cormier's motion, noting that
"the public could 99 percent of the time receive information as to
manufacturer and location from the public record, [but] that of
course, does not take away from the ability to offer expert
testimony on a particular issue."
The Opening Statement
The trial began in March 2005. During her opening
statement, the prosecutor said:
You will hear from Michael Gleason and Mike
Darragh and Jody Darragh, and from the start
they admitted they were drug dealers and told
the truth and you will also hear from Tracy
Paquette and from David Finch and it will be
up to you to determine whether they are
telling the truth.
Cormier objected; the court sustained the objection,
noting, "That is for closing." The prosecutor continued, stating:
And you will hear from Travis Sawyer who
bought the 454, and victims of the Bucksport
robbery. He had to admit that he was dealing
marijuana before he could come in and testify
in court . . . . And you will hear from Meg
Donelan, Mr. Cormier's girlfriend, who drove
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him home and covered for him when the police
came for interview. These people are not
people who want to help the police, they are
not people who volunteer information and not
people who by any means who would choose to be
on the stand testifying.
Cormier objected again, and the court sustained the
objection, cautioning, "It's not argument. This is opening in
terms of what you expect to show for evidence." The prosecutor
continued, stating:
The other point I wanted to make, and
understanding that the key witnesses might
have credibility problems, is that the
government has taken every step it could to
corroborate as many of the details these
witnesses will testify to as possible. . . .
[describing some of the corroboration] . . .
While the first line of witnesses may be
impeachable, this second line of witnesses and
evidence is not.
Cormier again objected, and the court sustained the
objection, warning the prosecutor not to "indicate argument as to
what is impeachable or not. Present the evidence you're going to
present." Cormier then moved for a mistrial. The court denied the
motion, stating:
I think there were instances where the
prosecutor came close to vouching for
witnesses or indicating the witnesses were
telling the truth. I don't know that you
stepped over that line. I was uncomfortable
as to the degree of closeness. I will give
the jury a cautionary instruction. I think in
terms of this case, I don't think it has
poisoned the well. This is a long trial, I'm
not sure that the jury will remember anything
about openings by the time they get this case.
I will give them cautionary instructions and
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we'll move on. I don't think they have been
poisoned by what they've heard.
The court then cautioned the jury:
I told you earlier statements by counsel are
not evidence and therefore you have not heard
any evidence in this case. What they told you
is not evidence. Number two. To the degree
counsel has indicated to you that they believe
a particular witness is telling the truth or
not telling the truth, disregard that
entirely, it is not for counsel to indicate,
it's up to you to determine. In addition,
counsel is not permitted to indicate to you
that they believe someone is telling the truth
or they are likely telling the truth. There
again, it is for you to understand and
determine and not for anyone else to tell you
or to determine. So you are to ignore
entirely such statements.
The Trial
The trial proceeded, and the Government's witnesses,
including Finch, Paquette, and Gleason testified to the foregoing
facts. In particular, ATF Agent McSweyn testified in accordance
with the "Interstate Nexus Report" he had offered in response to
Cormier's motion. Agent McSweyn testified that the Ruger .454
Magnum was manufactured in New Hampshire and shipped to a
distributor in Massachusetts, and then was shipped to a retailer in
Maine where it was purchased. Agent McSweyn further testified that
the handgun was manufactured in Arizona or New Hampshire and that
the rifle was manufactured in Connecticut. Cormier objected every
time Agent McSweyn testified about the origin of a firearm.
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Cormier chose not to testify in his own defense. On
cross-examination, Finch admitted that he had lied about the
robberies in his testimony before a grand jury. Finch, Paquette,
and Gleason all admitted that they cooperated with the police in
exchange for more lenient sentences. In addition, Finch and
Gleason admitted to having prior criminal records.
The Closing Argument
During her closing argument, the prosecutor stated:
So when you make your credibility
determinations, ladies and gentlemen, bear in
mind that it's not just what the witnesses
said that you can consider to determine
whether they are telling the truth. All of
that evidence that I've just gone over in some
detail bolsters what they said here on the
stand.
. . .
The ultimate decision on credibility is yours
but the government suggests that it took a lot
of honor and courage for those witnesses to
testify, to stare [Cormier] in the face and
tell their stories and that they are worthy of
their belief.
. . .
I said during my opening that one of the
things you will need to consider in this case
is Mr. Cormier's own words and actions,
because what else better is there to tell what
a person is thinking than by watching what
they are saying what they are doing. I would
like you to review one last point on the issue
of Mr. Cormier's own credibility. . . . Ladies
and gentlemen, it is said you can tell a lot
about a person by the company he keeps. This
week you have seen on the witness stand the
company that Lionel Cormier keeps. They were
robbers. They were drug dealers. They were
felons. They were drug addicts. The government
sure did not choose the witnesses in this
case, in fact in a very real sense Mr. Cormier
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did. Because until Mr. Cormier was charged
with this crime, these people were his trusted
associates, his long time friends, even the
woman with whom he shared his home.
. . .
[The witnesses] may not be model citizens, and
they may not be people you want your children
to marry, but their testimony is worthy of
your belief, especially when considered in the
light of all the other evidence you will have
before you in your deliberations.
Cormier moved for a mistrial, arguing, "Mr. Cormier's
credibility is not an issue in this trial." The court denied the
motion, replying:
[G]overnment counsel has come perilously close
on closing to comment[ing] on the defendant's
non[]-testimony, including the statements with
regard to the [what] only evidence in the case
is . . . . [and the] comments on his
credibility. . . . The government [also] came
perilously close by vouching for certain
witness' testimony. . . . I don't think that
the closing stepped over the line and I'm not
going to declare a mistrial.
The court then offered to give additional instructions to
the jury if the defense so requested, but Cormier declined to do
so.
The Jury Instructions
At the conclusion of the trial, Cormier requested a jury
instruction based on his reading of the holding of the Second
Circuit in United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977).
Cormier's proposed jury instruction stated, in part: "[I]f you find
that individuals jointly and simultaneously possessed the drugs
with the intent to share them amongst themselves as users, you may
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not find the Defendant guilty of distribution, aiding and abetting
distribution, or possession with intent to distribute."
The court instructed the jury: "[W]hen individuals come
into joint actual possession of a quantity of drugs that they
intend to keep for their own personal use, there is no 'intent to
distribute' under the law" (emphasis added). Cormier objected to
the jury instruction on the grounds that it included the word
"actual" when describing joint possession. The court overruled
Cormier's objection.
The court further instructed the jury:
The defendant has a constitutional right not
to testify and no inference of guilt or
anything else may be drawn from the fact that
the defendant did not testify. . . . [F]or any
of you to draw such an inference against this
defendant would be wrong, indeed, it would be
a violation of your oath as a juror. . . .
[Y]ou do not have to accept the testimony of
any witness if you believe that the witness
was not credible. . . . Arguments and
statements by lawyers are not evidence.
The jury convicted Cormier on all counts. Cormier was
sentenced to a total of 411 months imprisonment to be followed by
five years of supervised release. Cormier now appeals his
conviction.
II. Discussion
A. Sufficiency of the Evidence
Cormier begins by arguing that the jury had insufficient
evidence to find that he intended to distribute the drugs he
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obtained during the robberies. We review Cormier's challenges to
the sufficiency of the evidence de novo, examining the evidence in
the light most favorable to the Government. United States v. Hall,
434 F.3d 42, 49 (1st Cir. 2006).
Taking the evidence in the light most favorable to the
government, it appears that Cormier gave some of the stolen drugs
to Finch, who was not physically present when the Dyer robbery
occurred, and Paquette, who was only tangentially involved in the
robberies.3 There was also testimony that Cormier traded pills to
Hanson to purchase marijuana. In addition, Cormier directed that
some of the stolen marijuana be given to Simpson, who did not
participate in the robberies, to pay for Finch's bail.
Furthermore, the evidence shows that Cormier requested the help of
another person (Depka) in distributing drugs. Even though Depka
later refused to help, that refusal does not negate Cormier's
intent to distribute the drugs. Cf. United States v. Dixon, 449
F.3d 194, 202-03 (1st Cir. 2006) (holding that a sentencing
guidelines enhancement "turns on a defendant's subjective intent,
without regard to factual impossibility"). The quantity of
marijuana retained by Cormier -- at least two pounds -- although
not dispositive, at least suggests that it may not have been
3
It is well accepted that drugs may be distributed by giving them
away for free; 18 U.S.C. § 841(a)(1) imposes no requirement that a
sale take place. See, e.g., United States v. Washington, 41 F.3d
917, 919 (4th Cir. 1994) (collecting cases).
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intended only for personal use. See United States v. Echeverri,
982 F.2d 675, 678 (1st Cir. 1993) ("We have repeatedly held, and
today reaffirm, that an intent to distribute drugs can legitimately
be inferred from factors such as quantity and purity."). Given the
extent of the evidence, we believe that the jury reasonably
concluded beyond a reasonable doubt that Cormier intended to
distribute some of the drugs that he acquired, both to participants
and nonparticipants in the robberies. Thus, we reject Cormier's
claim that the evidence was insufficient to prove his intent to
distribute drugs.
B. Jury Instructions
As an analog to Cormier's argument regarding the
sufficiency of the evidence, Cormier contends that the jury was
misinstructed on how it should consider the evidence in light of
United States v. Swiderski. In Swiderski, the Second Circuit held
that when "two individuals simultaneously and jointly acquire
possession of a drug for their own use, intending only to share it
together, their only crime is personal drug abuse -- simple joint
possession, without any intent to distribute the drug further."
548 F.2d at 450-51. Swiderski goes on to explain that a
defendant's joint, simultaneous acquisition of drugs with another
does not bar a finding that the defendant intended to distribute
the jointly acquired drugs, but rather, that more evidence will be
needed to prove an intent to distribute. Id. at 450. As the
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Second Circuit stated, "[w]hether such an inference [of intent to
distribute] may be drawn depends upon the surrounding
circumstances, including the nature of the relationship (whether it
is commercial rather than personal), the quantity of the drug
(whether it is too large for personal use only), the number of
people involved, and statements or conduct on the part of the
defendants." Id.
Cormier's argument on this point is subject to plain
error review because his objection to the jury instructions was
made only at the pre-charge colloquy and not after the charge and
before deliberations. See United States v. Moran, 393 F.3d 1, 13
& n.7 (1st Cir. 2004). Cormier argues that it was plain error for
the district court to instruct the jury that, to negate intent,
Cormier needed to prove that he jointly and actually possessed
drugs with another. Cormier contends that Swiderski is broader,
providing that a defendant's intent to distribute drugs cannot be
based solely on evidence of either joint actual or joint
constructive possession of those drugs with a co-venturer -- i.e.
possession shared with an accomplice or lookout. There is a
dispute as to whether Cormier waived the objection. We will assume
there was no waiver4 and engage in plain error review. We will
4
The Government argues that Cormier waived his objection to the
jury instructions, and thus no review is possible. According to
the Government, Cormier said, "No objection" after the judge read
the charge, and thus intentionally waived his objection on the
issue. See United States v. Hansen, 434 F.3d 92, 100-01 (1st Cir.
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reverse if "(1) [] an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
We have never expressly decided whether Swiderski is good
law in this circuit5 and we decline to do so now because our
resolution of Cormier's challenge to the sufficiency of the
evidence shows that Cormier cannot satisfy the fourth prong of
plain error review: the decision to not give Cormier's proposed
Swiderski instruction did not seriously impair the fairness of his
trial. Cormier cannot satisfy this fourth prong because the jury
had sufficient evidence which showed beyond a reasonable doubt that
Cormier intended to distribute drugs beyond the immediate
participants in each robbery, which would satisfy the intent to
distribute requirement of § 841(a)(1) even if we were to accept
Cormier's understanding of Swiderski as correct. See United States
2006). Cormier responds that although his objection was improperly
preserved, he did, in fact, object during the jury charge
conference. Cormier states that "No objection" was intended as a
response to the judge refusing the prosecutor's suggestion of an
additional charge. Because it is unclear whether Cormier's
statement was an unequivocal waiver of his objection to the jury
instructions, we prefer to decide the issue on the merits.
5
The only three cases in this circuit to have addressed Swiderski
found that it was inapplicable to the facts. See United States v.
Reid, 142 Fed. Appx. 479, 482 (1st Cir. 2005); United States v.
Rush, 738 F.2d 497, 514 (1st Cir. 1984); United States v. Taylor,
683 F.2d 18, 21 (1st Cir. 1982).
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v. Taylor, 683 F.2d 18, 21 (1st Cir. 1982) (finding Swiderski
inapplicable given that "the complex nature of the operation and
the amount of marijuana confiscated belies defendants' contention
that they did not intend to transfer the drugs to other persons").
Because we find the evidence sufficient to establish Cormier's
intent to distribute drugs, a jury instruction strictly tracking
the language in Swiderski would have been of little help to
Cormier, and as such, we cannot conclude that the failure to give
such an instruction impaired the fairness of the proceedings.
C. Expert Testimony
Cormier next claims that it was inappropriate for the
court to admit the testimony of ATF Agent McSweyn regarding the
provenance of the weapons used in the robberies. We review a
district court's decision to admit testimony for abuse of
discretion. See United States v. McGauley, 279 F.3d 62, 72 (1st
Cir. 2002).
Fed. R. Evid. 702 allows a court to admit expert
testimony regarding "scientific, technical, or other specialized
knowledge" so long as the testimony is "based upon sufficient facts
or data[,] . . . the product of reliable principles and methods,
and . . . the witness has applied the principles and methods
reliably to the facts of the case." Fed. R. Evid. 703 states that
"facts or data need not be admissible" if they are "of a type
reasonably relied upon by experts in the particular field."
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Cormier argues that ATF Agent McSweyn's testimony regarding the
"interstate nexus" element of 18 U.S.C. § 922(g) was not admissible
under Fed. R. Evid. 702 because it did not concern specialized
knowledge, and that even if it did, the testimony failed to comply
with Fed. R. Evid. 703 because McSweyn relied only upon
impermissible facts and data in stating his conclusions.
In United States v. Corey, 207 F.3d 84 (1st Cir. 2000),
we rejected an identical argument. We held that the "interstate
nexus" element of § 922(g) constituted specialized knowledge for
which expert testimony would be appropriate. Id. at 88-89. We
further found that the evidence relied upon by the ATF agent in
that case -- technical manuals, conversations with manufacturers,
and the expert's prior experience -- was evidence reasonably relied
upon by experts in the field. Id. at 91-92. In the present case,
ATF Agent McSweyn relied upon the same evidence as was relied upon
in Corey, but added to the mix dealer records, public and non-
public ATF records, and inspection of one of the firearms. Cormier
complains that ATF Agent McSweyn's testimony consisted only of a
restatement of the conclusions made in public records. We agree
with Cormier that "an expert witness may not simply summarize the
out-of-court statements of others as his testimony." United States
v. Smith, 869 F.2d 348, 355 (7th Cir. 1989). However, this is not
what happened here. McSweyn not only consulted publicly available
records in making his conclusions about the manufacturing origin of
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the weapons, but he also looked to conversations with manufacturers
and research texts, and he inspected one of the weapons. We see no
reason why an expert in firearms identification could not
reasonably rely on ATF manufacturing records to determine the
provenance of a weapon. See United States v. Ware, 914 F.2d 997,
1003 (7th Cir. 1990) ("[E]xperts in the field of firearms
identification rely on [ATF publications and lists] with regard to
the issue of interstate transportation of firearms and such
reliance is reasonable."). Thus, Cormier gives us no reason to
depart from our conclusion in Corey that an ATF agent, using
evidence reasonably relied upon by experts in that field, including
publicly available records, may testify as to the interstate nexus
element of a federal firearms offense.
D. Prosecutor's Opening and Closing Statements
Lastly, Cormier calls our attention to comments made by
the prosecutor during her opening and closing statements, which
Cormier construes as improperly vouching for witnesses and
criticizing his choice not to testify. We have fashioned a three-
part test to determine whether a prosecutor's comments have so
"poisoned the well" that a new trial must be ordered. United
States v. Joyner, 191 F.3d 47, 54 (1st Cir. 1999). We consider:
(1) whether the prosecutor's conduct was
isolated and/or deliberate; (2) whether the
trial court gave a strong and explicit
cautionary instruction; and (3) whether it is
likely that any prejudice surviving the
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judge's instruction could have affected the
outcome of the case.
Id.
Cormier argues that the prosecutor improperly and
repeatedly vouched for the credibility of witnesses. He
specifically points to the fact that the prosecutor said three
times during the opening that witnesses were "telling the truth."
Further, Cormier argues, the prosecutor again vouched for the
witnesses during her closing argument when she said that the
witnesses "are worthy of their belief." Compounding these errors,
Cormier argues, were the prosecution's comments regarding
"Mr. Cormier's own words and actions" and "Mr. Cormier's own
credibility." These comments, Cormier argues, were an indirect
criticism of his choice not to testify at trial.
It is undisputed that the government is prohibited from
placing the "prestige of the United States behind a witness by
making personal assurances of credibility." United States v.
Torres-Galindo, 206 F.3d 136, 140 (1st Cir. 2000). Likewise, it is
clearly established that a prosecutor may not comment upon a
defendant's choice to avail himself of his Fifth Amendment right to
not testify at trial. Griffin v. California, 380 U.S. 609, 613
(1965); United States v. Roberts, 119 F.3d 1006, 1014 (1st Cir.
1997). The Government conceded that some of the prosecutor's
statements vouched for certain witness' testimony. Furthermore, we
agree with the district court that the prosecutor's statements,
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although somewhat ambiguous, may have come "perilously close" to
criticizing Cormier's choice to not testify. Given Cormier's
frequent objections to these statements and that the prosecutor
continued to make them, these comments constitute a serious error
in judgment on the part of the prosecutor.6
We are mindful, however, of the Supreme Court's
"admonition against letting the guilty go free to punish
prosecutorial misconduct." United States v. Auch, 187 F.3d 125,
133 (1st Cir. 1999) (citing United States v. Hasting, 461 U.S. 499,
506-07 (1983)). To begin, the vigorous cross-examination of the
prosecution witnesses, the court's instructions7 to the jury to
disregard the prosecutor's improper comments, and the passage of
four days after the opening remarks were made, likely mitigated the
impact on the jury of the prosecutor's initial improper vouching.
See United States v. Rosales, 19 F.3d 763, 767 (1st Cir. 1994).
Our concerns with the prosecutor's statement on closing are
somewhat greater because of the possible cumulative effect of the
improper comments and the fact that the prosecutor had already been
censured for such comments during the opening. However, as we have
recommended, the court issued "final instructions to the jury
6
Admirably, the Government conceded that at least some of the
prosecutor's comments were "to be avoided." Appellee's Br. at 49.
7
Because there was a strong instruction at opening after the
vouching, this case does not raise the question of measuring
prejudice when there is vouching only at an opening statement which
is not followed by an explicit curative instruction.
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[that] were strong and clear" on their duty to disregard the
improper comments and to properly weigh the credibility of
witnesses. United States v. Rodríguez-Estrada, 877 F.2d 153, 159
(1st Cir. 1989). The fact that Cormier declined the court's offer
of an additional instruction is also indicative of the lack of
prejudice. Furthermore, this was not a case where the prosecution
relied solely on the testimony of one or two witnesses, in which
vouching could have had a particularly strong impact on the jury.
Compare United States v. Manning, 23 F.3d 570, 575 (1st Cir. 1994)
(finding that improper vouching affected a case where two
prosecution witnesses had testified against the defendant and their
testimony was challenged by two defense witnesses) with
Torres-Galindo, 206 F.3d at 141-42 (1st Cir. 2000) (finding that
vouching did not affect a case where there was consistent testimony
implicating the defendant). Rather, the prosecution offered not
only the testimony of Cormier's co-venturers, but also the
testimony of victims of his robberies and other acquaintances, all
of whom testified consistently regarding Cormier's actions.
Finally, the prosecutor's statements regarding Cormier's choice not
to testify were so vague and oblique that it was unlikely that they
caused Cormier any real prejudice. Given the overwhelming evidence
which implicates Cormier in the crimes of which he has been
convicted, we cannot say that any prejudice surviving the curative
instructions would have affected the outcome of the trial.
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III. Conclusion
For the foregoing reasons, we affirm Cormier's
conviction.
Affirmed.
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