United States v. Salley

United States Court of Appeals
For the First Circuit

No. 09-1720

UNITED STATES OF AMERICA,

Appellee,

v.

HORACE W. SALLEY, III,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

Peter J. Cyr for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.

June 29, 2011
 THOMPSON, Circuit Judge. A Maine jury found Horace W.

Salley, III guilty of possession of a firearm following a

conviction of misdemeanor domestic violence in violation of 18

U.S.C. § 922(g)(9).1 Salley appeals claiming prosecutorial

misconduct.2 Finding no error, we affirm.

1
"It shall be unlawful for any person who has been convicted
in any court of a misdemeanor crime of domestic violence, to ship
or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commence." 18 U.S.C. § 922(g)(9).
2
As a housekeeping matter, we note that Salley supplemented
his counsel's prosecutorial misconduct argument by raising a host
of other issues in a pro se brief. In particular, Salley claimed
his conviction violated his Second Amendment right to bear arms and
that he was denied his Sixth Amendment right to effective counsel.
Salley also simply listed in numerical form what he termed
"miscellaneous other issues" with no corresponding arguments. The
"issues" related to, among other things, the chain of evidence,
sentencing, and the applicability of the Interstate Commerce
Clause.
We will not address any of Salley's pro se arguments as they
are not properly before us. Salley did not raise the Second
Amendment argument below in his motion for a new trial and
therefore it is waived. See United States v. Bongiorno, 106 F.3d
1027, 1034 (1st Cir. 1997). Salley's "miscellaneous other issues"
are also waived for his failure to raise them below and for their
perfunctory treatment on appeal. Id. Finally, Salley's Sixth
Amendment argument is also procedurally deficient because a habeas
corpus petition, not a direct appeal, is the proper vehicle for an
ineffective assistance of counsel claim. See United States v.
García-Pastrana, 584 F.3d 351, 388 (1st Cir. 2009). We do not
review ineffective assistance of counsel claims on direct appeal
absent an evidentiary record that would allow us to sufficiently
evaluate the claim, and we do not have such a record here. Id.

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 BACKGROUND

The Arrest

Horace and Skyla Salley began dating in May 2005 and were

married in December of that year.3 Skyla had two children from a

previous relationship and was pregnant with Salley's baby at the

time of the wedding. From the start, the couple's relationship was

a tumultuous one and things came to a head on November 25, 2006,

when a 911 operator received a domestic assault complaint from

Skyla, who indicated that Salley had a gun. State trooper Carmen

Lilley was dispatched to the couple's home in Smyrna Mills, Maine.

Upon arrival, Lilley met Salley in the yard. Salley

first tried to deny that the 911 call originated from his home but

Lilley was not buying it. Salley then admitted his identity and

Lilley cuffed him on suspicion of domestic assault. Lilley next

asked Salley three times where his gun was and each time Salley

denied having a gun or that there was a gun in the house. Lilley

left a cuffed Salley in the squad car and went into the home where

he found a visibly shaken Skyla with the couple's baby in the

bedroom. Skyla and Lilley spoke about what had happened, including

the fact that Salley had a gun, with which he had previously

threatened her. Skyla also informed Lilley about the specific

3
For ease of reference, we refer to Horace Salley as "Salley"
and Skyla Salley as "Skyla".

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circumstances surrounding Salley obtaining the gun (discussed fully

below). She then retrieved the gun out of the bedroom closet.

The Trial

Salley was arrested and charged with knowingly possessing

a firearm after being convicted of misdemeanor domestic assault.

The underlying domestic assault conviction involved an assault

against an ex-girlfriend. At the time of trial, Skyla and Salley

had divorced.

The main focus of the trial was whether the gun that

police seized from the Salley home (a Bushmaster Bullpup assault

rifle) was in fact Salley's. To establish this critical fact, the

government first called William Steinhagen, who had purchased a

Bushmaster Bullpup rifle at a shop in New Hampshire in 2003.

Steinhagen testified that he traded the rifle sometime around 2005

to a man in Maine for a 1946 Chevy. The trade came about when

Steinhagen answered an advertisement the man had placed in a

regional classified ad magazine called Uncle Henry's Swap and Sell

Guide. Steinhagen traveled to Maine to make the trade and though

he could not recall the man's name, he described his appearance and

age as being similar to Salley's. Steinhagen also testified that

he called the man's cell phone en route to the trade and the

government established through cell phone records that the phone

number Steinhagen called was Salley's. The Uncle Henry's

advertisement was also admitted into evidence and it listed

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Salley's cell phone number as the contact number and the town he

was living in as the relevant town. Steinhagen went on to identify

the firearm seized from Salley's home as the gun that he had

purchased and then traded. Steinhagen also confirmed that the

serial number on the gun seized from the Salley home matched the

serial number on the paperwork for the gun he bought.

Skyla also offered testimony regarding the gun's origins.

She was with Salley, she recalled, when he placed the Uncle Henry's

advertisement and when a man called in response to the ad. Then in

late 2005, Skyla went with Salley to Detroit, Maine where she

waited in the car while Salley met with the man and obtained the

gun. Skyla thought Salley traded his flatbed truck for the gun.

The government also called two of Salley's acquaintances,

David Smith and his father, James Smith. As David remembered,

Salley visited the Smith home in November 2005 with a woman.

Skyla, being that woman, confirmed this gathering. David indicated

that during the visit Salley showed them a gun, fired it at an old

car in the yard, and let David fire it too. David identified the

gun police seized from the Salley home as the gun he fired with

Salley. James Smith, David's father, also testified that Salley

came to his home in November 2005 and that he caught a glimpse of

Salley with a gun. James also heard the gun being fired, leading

him to believe it was a semi-automatic gun. It was his

understanding that Salley received the gun via trade in exchange

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for either his flatbed wrecker or Chevy coupe. James said he knew

Salley from trading items with him.

In addition to testifying about Salley's acquisition of

the gun, Skyla also described her and Salley's home-life. The

following testimony is relevant to this appeal. In October 2005,

the Maine Department of Health and Human Services ("DHHS") took

Skyla's oldest child away from her because caseworkers believed

that Salley was a threat to the child. Realizing she had to make

a decision between Salley and her children - and choosing the

latter - Skyla broke it off with Salley. Her first step was

checking into a women's shelter and obtaining a protection-from-

abuse order against Salley out of fear for her life and safety.

Skyla obtained the order in December 2005, and in the underlying

complaint she claimed Salley owned a gun and had threatened her

with it.

The couple's separation was short-lived, and in January

2006 the reunited pair moved into the Smyrna Mills home, which was

purchased partially in Skyla's name. About two weeks after they

bought the house, Skyla said Salley retrieved his gun from a

storage unit and brought it into the home where he primarily kept

it in his tool room. Skyla recalled seeing Salley handle the gun

and in particular she noted an instance a month before he got

arrested where he had the gun in his hands while he sat on the bed

in the bedroom. During the month leading up to his arrest, Salley,

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as Skyla recounted, threatened more than once to shoot her with the

gun.

After the government concluded its case, Salley presented

a series of witnesses though he chose not to testify himself.

Salley called among others, DHHS case workers, the realtor who

handled the Smyrna Mills property sale, and neighbors. Significant

for purposes of this appeal, Salley called Rebecca Hughes, the

woman who purchased the Salleys' Smyrna Mills home from them.

Hughes testified that she began moving boxes containing her and her

roommates' belongings into the home around November 11, 2006, which

was just prior to Salley's arrest.

Defense counsel rested and closing arguments followed.

The government highlighted the testimony of Steinhagen, Lilley, and

the Smiths. The prosecutor argued that this testimony was enough

to convict Salley, in the event the jury did not find Skyla

credible. While the prosecutor downplayed Skyla's significance,

defense counsel's summation focused on her. Essentially, the

defense theory was that Skyla (perhaps in cahoots with David Smith)

connived to put Salley in jail in order to keep DHHS off her back

and so she could keep the sale proceeds from the Smyrna Mills home

for herself. The jury wasn't convinced and found Salley guilty

after a short deliberation.

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 Post-Trial

Four days after the jury issued its verdict, the trial

judge sua sponte raised a concern about statements made by the

prosecutor during the government's closing. The statements were:

Prosecutor: The bottom line is, the gun that Mr.
Steinhagen bought in New Hampshire was recovered from the
defendant's bedroom on the date alleged in the
indictment. There's been no suggestion that it was
planted there. There's been no suggestion that Mr.
Salley didn't know it was there.

The trial judge expressed concern that this statement might (1)

contradict the evidence, (2) imply Salley had the burden of proof,

and/or (3) be perceived as a comment on Salley's decision not to

testify. Apprised of the court's concerns, Salley filed a motion

for a new trial based on the prosecutor's statements.

In a written decision, the district court denied Salley's

motion. While the court found that the prosecutor's second

statement4 was inaccurate and that the jury would likely perceive

it as a commentary on Salley's failure to take the stand; the court

concluded that the error was harmless in light of the cumulative

evidence and the court's jury instructions. Salley appealed the

denial of his new trial motion to this court.

STANDARD OF REVIEW

Salley did not contemporaneously object to the

prosecutor's statements and therefore we review for plain error.

4
"There's been no suggestion that Mr. Salley didn't know it
was there."

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See United States v. Robinson, 473 F.3d 387, 393 (1st Cir. 2007).

"Plain error requires a showing (1) that 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. Landry, 631 F.3d 597, 606 (1st Cir. 2011)

(internal quotation marks and citation omitted). In other words,

we must question whether Salley can show both error and prejudice.

See United States v. Kinsella, 622 F.3d 75, 84 (1st Cir. 2010).

Plain error reversals are limited to blockbuster errors and not

ordinary backfires. See United States v. Ortiz, 447 F.3d 28, 35

(1st Cir. 2006).

We determine the legal question of whether the

prosecutor's comments constituted misconduct de novo. See United

States v. Casas, 425 F.3d 23, 39 (1st Cir. 2005). However, we

review whether the misconduct, if any, warranted a new trial for

abuse of discretion. See Robinson, 473 F.3d at 393.

ANALYSIS

The First Statement

We begin with the first statement: "There's been no

suggestion that it was planted there." Simply put, there is

nothing improper about this statement. By his own admission,

Salley's defense theory was that Skyla framed him - obtaining and

planting the gun herself. Defense counsel's closing reflected this

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theory.5 Additionally, Salley presented the testimony of Rebecca

Hughes, who purchased the Smyrna Mills home and moved boxes in

prior to Salley's arrest. Obviously Salley's purpose in calling

this witness was to imply that the gun was amongst Hughes' boxed

possessions.

By advancing these two theories, Salley opened the door

to the statement at issue. The government is permitted to comment

on the plausibility of the theory that Skyla or Hughes planted the

gun. See United States v. Glover, 558 F.3d 71, 78 (1st Cir. 2009).

When commenting on the tenability of a defense theory, the

prosecutor must focus on what the evidence has or hasn't shown,

"rather than on the defendant and what he or she has shown or

failed to show." Id. Here the prosecutor, referencing the defense

trial theory, did just that by saying "[t]here's been no suggestion

. . ." See United States v. Wilkerson, 411 F.3d 1, 8-9 (1st Cir.

2005) (finding prosecutor's remark that "there's no real evidence"

would likely be construed by a jury to refer to defendant's failure

to produce evidence supporting his theory, as opposed to his

5
Defense counsel queried during closing: "Does [Skyla] have
an incentive herself to put Mr. Salley away so she can continue to
make some more bad choices with different men?" Later in the
closing, counsel speculated as to Skyla's thought process: "So what
do I have to do? I have to get rid of Mr. Salley in a way that
doesn't bounce back on me. What's a good way to do that, put him
in jail? Perhaps." Counsel drove the point home: "Ms. Salley has,
frankly, so many reasons and lies that she has told and reasons and
incentives that she has to put [Salley] away that it's, frankly,
impossible to sort out what her incentives, rationales, and
motivations are, but clearly they're there."

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failure to testify). This court has previously been reluctant to

find plain error when a prosecutor's remarks are made to rebut an

argument by defense counsel and are commensurate with that purpose.

See United States v. Taylor, 54 F.3d 967, 978 (1st Cir. 1995).

Considering the above and given the high standard for plain error,

we find no plain error with respect to the first statement.

The Second Statement

We proceed to the second statement: "There's been no

suggestion that Mr. Salley didn't know it was there." This

statement is more problematic and requires a deeper delving. We do

so by addressing the arguments raised by Salley, which mirror the

district court's concerns: (1) the statement shifts the burden of

proof and (2) the statement comments on Salley's failure to

testify.6

With respect to Salley's first argument, we have held

that "as to comments that shift the burden . . . 'a prosecutor may

cross the line [into impermissibility] by arguing to the jury that

the defendant is obligated to present evidence of his innocence.'"

Glover, 558 F.3d at 77 (internal citation omitted). We do not

believe that line was crossed here. In particular, the prosecutor

did not argue that Salley "had the burden to prove another set of

6
As noted above, the district court was also concerned (and
ultimately found) that the second statement was inaccurate in light
of Officer Lilley's testimony that Salley three times over denied
knowledge of a gun in his home. Salley has not however raised the
statement's inaccuracy as a ground for this appeal.

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facts." Wilkerson, 411 F.3d at 8. Rather, the prosecutor's

statement drew attention to the lack of evidence that Salley was

unaware of the gun's presence in his home. Such a statement is

distinguishable from those we have previously found to be improper

burden shifting comments. See United States v. Roberts, 119 F.3d

1006, 1015 (1st Cir. 1997) (prosecutor remarked that "when a

defendant does 'go forward' to offer evidence, 'the defendant has

the same responsibility [as the government] and that is to present

a compelling case'"); United States v. Wihbey, 75 F.3d 761, 769

(1st Cir. 1996) (prosecutor stated "if [defense counsel] can stand

up and explain away that conversation to you, then you should

[acquit] . . . There's just no other explanation except the one

that's been provided . . . by the government."). In these cases,

the prosecutor specifically said that the defense had a burden to

present evidence. That is not so with the comment at issue.

Salley's burden shifting claim is without traction.

Salley's second argument - that the prosecutor

impermissibly commented on his failure to testify - presents us

with a closer question. To determine whether a comment trod on a

defendant's Fifth Amendment right against self incrimination, this

court "ask[s] whether 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." Glover, 558 F.3d at 77. Here it is undisputed that

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the prosecutor did not intend to comment on Salley's failure to

testify. Therefore our focus is on how the jury may have perceived

the comment.

Undoubtedly the prosecutor's statement is not a

barefaced reference to Salley's choice not to take the stand. Cf.

United States v. Skandier, 758 F.2d 43, 45 (1st Cir. 1985)

(prosecutor asked the jury to "see if [defense counsel] can explain

the story" any differently than the prosecutor had); United States

v. Cox, 752 F.2d 741, 745 (1st Cir. 1985) (prosecutor stated "how

does [defendant] explain" certain evidence). However, because only

Skyla and Salley lived in their home - and Skyla testified that

Salley knew the gun was in the home - it can be argued that Salley

was the only other person who could have testified as to his

knowledge of the gun's locale. Thus the jury may have perceived

the statement as commentary on Salley not testifying. At the same

time, it is conceivable that the statement (albeit clumsily)

highlighted for the jury the absence of any testimony from defense

witness Rebecca Hughes that she put the gun in the closet and that,

to her knowledge, Salley was not aware of its presence.

This second interpretation finds favor in the principle

that courts "should not lightly infer . . . that a jury, sitting

through a lengthy exhortation, will draw [the most damaging]

meaning from the plethora of less damaging interpretations."

United States v. Lilly, 983 F.2d 300, 307 (1st Cir. 1992).

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Further, we "are especially reluctant to 'fish in the pool of

ambiguity' when, as now, the complaining party failed to bring a

dubious comment, easily corrected on proper notice, to the

immediate attention of the trial court." Taylor, 54 F.3d at 979

(internal citation omitted).

Ultimately we need not grapple with this issue further.

Although the prosecutor's statement debatably could be perceived as

a reference to Salley's failure to testify, the statement is not

grounds for reversal because there was no prejudice.

This court "will not reverse unless the prosecutor's

remarks so poisoned the well that the trial's outcome was likely

affected." United States v. Shoup, 476 F.3d 38, 43 (1st Cir. 2007)

(internal quotation marks and citation omitted). Factors to be

considered are: (1) the severity of the misconduct, (2) whether it

was deliberate or inadvertent, (3) the context in which it

occurred, (4) the likely effect of any curative instructions, and

(5) the strength of the government's evidence of guilt. Id. at 44.

Assuming the prosecutor's statement was misconduct, it

was not severe but rather a limited (though admittedly inaccurate)

reference to the evidence. Further there is zero indication that

the prosecutor's comment was a deliberate reference to Salley's

failure to testify. The statement was made only once during

closing arguments and not elaborated on. In fact, the prosecutor

herself contradicted the statement (correctly stating the evidence)

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earlier in her closing.7 Defense counsel did the same during his

closing.8

To boot, defense counsel's failure to object to the

comment "increases the likelihood that the effect on the jury was

likewise fleeting and evanescent." Shoup, 476 F.3d at 44. And

although the lack of an objection means there was no specific

curative instruction, the court did instruct the jury in both its

preliminary and final jury instructions that the lawyers' comments

and closing arguments were not evidence and that the jury's memory

of the evidence controlled. The court also drew attention to

Salley's constitutional right not to testify and cautioned the jury

that it should not draw a negative inference from this choice. We

assume the jury to have followed these instructions. See Morales-

Vallellanes v. Potter, 605 F.3d 27, 34-35 (1st Cir. 2010).

Last but not least, the evidence linking Salley to the

gun was tremendous: (1) the Uncle Henry ad, (2) phone records, (3)

Skyla's testimony (including an in-court identification of the

seized gun as Salley's), (4) Steinhagen's testimony (including an

in-court identification of the seized gun as the one he traded),

(5) David Smith's testimony (including an in-court identification

7
The prosecutor stated: "[Lilley] then asked [Salley] three
different times if there was a gun in the house, if he had a gun,
where's the gun, and on each occasion, Mr. Salley said, no, I don't
have a gun, I don't know anything about a gun."
8
Defense counsel indicated: "Mr. Salley denied ever having
known anything about a gun. The government pointed that out."

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of the seized gun as the one he shot with Salley), and (6) James

Smith's testimony. And despite Salley's contention to the

contrary, it is not a foregone conclusion that Skyla's testimony

should be discounted as unreliable. The defense theory that Skyla

entered into a year long conspiracy with some unknown accomplice to

frame Salley is entirely unsupported by the evidence.

The statement at issue was not significant enough to

affect Salley's rights or seriously impair his trial. See Landry,

631 F.3d at 606. Salley has not surmounted the high hurdle of the

plain error standard. See Ortiz, 447 F.3d at 36.

CONCLUSION

To sum up, the prosecutor's statements did not constitute

plain error and thus the district court did not abuse its

discretion in denying Salley's motion for a new trial. The

district court is affirmed.

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