UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1381
UNITED STATES OF AMERICA,
Appellee,
v.
TERRENCE TAYLOR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Selya, Circuit Judge.
Judith H. Mizner, by appointment of the court, for
appellant.
Kimberly S. Budd, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
the United States.
May 17, 1995
SELYA, Circuit Judge. A jury convicted defendant-
SELYA, Circuit Judge.
appellant Terrence Taylor on charges that he twice had robbed
federally insured banks, and had carried a firearm during and in
relation to the second robbery.1 Deterrating no reversible
error, we affirm.
I. BACKGROUND
I. BACKGROUND
Following accepted practice in criminal cases that
involve questions of evidentiary sufficiency, see, e.g., United
States v. Echeverri, 982 F.2d 675, 676 (1st Cir. 1993); United
States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991), we limn the
1The applicable statutes provide in pertinent part:
Whoever, by force and violence, or by
intimidation, takes, or attempts to take,
from the person or presence of another . . .
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
[federally insured] bank . . . [shall be
punished as provided by law].
18 U.S.C. 2113(a) (1988).
Whoever, in committing, or in attempting to
commit, any offense defined in [ 2113(a)],
assaults any person, or puts in jeopardy the
life of any person by the use of a dangerous
weapon or device, shall be [punished as
provided by law].
18 U.S.C. 2113(d) (1988).
Whoever, during and in relation to any crime
of violence . . . for which he may be
prosecuted in a court of the United States,
uses or carries a firearm, shall . . . be
[subjected to additional punishment].
18 U.S.C. 924(c)(1) (1988).
2
facts in the light most congenial to the government.
Appellant and Arnett Lynch, an inveterate bank robber,
often used drugs at a hangout in Boston, known euphemistically as
"the Spot." On several occasions appellant, emphasizing that he
"wanted to learn the ropes," expressed the hope that Lynch would
provide tutelage in how to rob banks.
The problem with wishes is that they sometimes come
true. Cf. Aesop, The Old Man and Death (circa 550 B.C.)
(predicting that "[w]e would often be sorry if our wishes were
gratified"). On January 29, 1992, appellant restated his
aspirations and mentioned the availability of transportation,
telling Lynch that his friend, Lucille Aulmond, had agreed (for
ten dollars) to drive him to the downtown area. Lynch and Taylor
entered Aulmond's automobile. During the trip, Lynch told
appellant that they were going to "do bizank" [a slang term for
"bank," according to Lynch's trial testimony] and "rob the 2T's"
[a reference to two tellers].
After dropping off a friend, Aulmond, on Lynch's
instructions, drove to downtown Boston and parked near the
intersection of Clarendon St. and Newbury St. Lynch walked to the
corner to check a branch office of Bank of Boston, but found that
it had closed for the day.2 When Lynch returned to the vicinity
of the parked car, appellant joined him on the sidewalk. The two
men then entered a nearby branch of United States Trust Company
2That bank had been robbed several days earlier by Lynch's
compatriot, William Corgain, who told Lynch that the bank was
easy pickings because only two tellers were on duty.
3
(UST).
Appellant remained hard by the entrance, watching both
the bank's interior and the street. Meanwhile, Lynch strode to
the center of the lobby. The manager, Elizabeth Nentwig, asked
Lynch if he needed assistance. Lynch proved capable of helping
himself; he drew a gun and advised Nentwig that a robbery had
begun. Lynch then grabbed a customer's briefcase, approached a
teller (Helen Huppoch), and demanded money. He received $2,748
from Huppoch and inserted it into the briefcase. Appellant
yelled, "come on, let's go," and the two men sprinted to
Aulmond's car.
Once inside the automobile, Aulmond asked what had
happened, and appellant responded: "I hit a guy in the face. I
punched a guy in the face." Lynch screamed at Aulmond to stop
talking and start driving. She complied. After Aulmond made a
wrong turn, the men grew impatient, bolted from her vehicle, and
completed their escape in a taxi. They then split the spoils,
but, there being scant honor among thieves, four men later mugged
Lynch and stole his share of the proceeds.
The next day, a man subsequently identified by
percipient witnesses as Taylor entered a BayBank branch located
at 285 Huntington Ave. in Boston. The man approached a teller's
station, shoved aside a customer, Alaina Gurski, and, threatening
to shoot Gurski, demanded that the teller, Raya Aruin, hand over
her money. The man held an object that both Aruin and Ellen
Clavin, a customer service representative working at a nearby
4
teller station, described at trial as a gun. The robber fled
after receiving $2,458 from Aruin.
In due season, a federal grand jury indicted appellant
for his role in the two robberies. The superseding indictment
contained three counts: count 1 charged Taylor and Lynch with
committing the UST robbery; count 2 charged Taylor with
committing the BayBank robbery; and count 3 charged Taylor with
carrying a firearm during and in relation to the BayBank robbery.
Lynch entered into a plea agreement and Taylor stood trial alone.
The jury found him guilty on all three counts. Following
imposition of sentence, Taylor filed this timely appeal.
Taylor's brief contains seven distinct assignments of
error. Six of these asseverations relating, vacuously, to the
joinder of counts arising from two separate robberies, the
sufficiency of the evidence, and the jury instructions do not
necessitate exegetic treatment. We dispose of these six claims
in a decurtate fashion (see infra Parts III - V). We then turn
to appellant's most vexing point: his complaint that the
prosecutor's closing argument contained improper and prejudicial
misstatements, including impermissible comments on his election
not to testify. See infra Part VI.
II. THE RAISE-OR-WAIVE RULE
II. THE RAISE-OR-WAIVE RULE
Because many of the assigned errors were not preserved
for appeal by timely objections, we pause first to discuss the
raise-or-waive rule. In general, the law ministers to the
vigilant, not to those who sleep upon perceptible rights.
5
Consequently, a litigant who deems himself aggrieved by what he
considers to be an improper occurrence in the course of trial or
an erroneous ruling by the trial judge ordinarily must object
then and there, or forfeit any right to complain at a later time.
The policy reasons behind the raise-or-waive rule are rock solid:
calling a looming error to the trial court's attention affords an
opportunity to correct the problem before irreparable harm
occurs. Then, too, the raise-or-waive rule prevents sandbagging;
for instance, it precludes a party from making a tactical
decision to refrain from objecting, and subsequently, should the
case turn sour, assigning error (or, even worse, planting an
error and nurturing the seed as insurance against an infelicitous
result). So viewed, the requirement that parties raise
contemporaneous objections to improper questions, comments, and
the like serves an important purpose in promoting "the balanced
and orderly functioning of our adversarial system of justice."
United States v. Griffin, 818 F.2d 97, 99-100 (1st. Cir.), cert.
denied, 484 U.S. 844 (1987); accord United States v. Holmquist,
36 F.3d 154, 168 (1st Cir. 1994), cert. denied, 115 S. Ct.
(1995).
Despite its strength and salience, the raise-or-waive
rule is not absolute. But, rescue missions are restricted to the
correction of "plain" errors. See United States v. Olano, 113 S.
Ct. 1770, 1776 (1993); United States v. Mejia-Lozano, 829 F.2d
268, 273 (1st Cir. 1987); Griffin, 818 F.2d at 100; see generally
Fed. R. Crim. P. 52(b).
6
The plain error doctrine concentrates on
"blockbusters," to the exclusion of "the ordinary backfires . . .
which may mar a trial record." Griffin, 818 F.2d at 100. Under
it, appellate courts will notice unpreserved errors only in the
most egregious circumstances. At a bare minimum, therefore,
bevues not seasonably brought to the attention of the trial court
must, in order to command appellate intervention, "affect[]
substantial rights." Fed. R. Crim. P. 52(b).
An unpreserved error is deemed plain (and, therefore,
to affect substantial rights) only if the reviewing court finds
that it skewed the fundamental fairness or basic integrity of the
proceeding below in some major respect. See Griffin, 818 F.2d at
100. As the Supreme Court itself has written, the plain error
doctrine applies in those circumstances in which, absent
appellate intervention, "a miscarriage of justice would otherwise
result." United States v. Frady, 456 U.S. 152, 163 n.14 (1982).
Given these parameters, it is not surprising that the
jurisprudence of plain error invests substantial discretion in
the court of appeals. See Olano, 113 S. Ct. at 1776 (observing
that "the decision to correct the forfeited error [rests] within
the sound discretion of the Court of Appeals"); United States v.
Whiting, 28 F.3d 1296, 1308 (1st Cir.) (same), cert. denied, 115
S. Ct. 378 (1994). Even when faced with an apparently plain
error, an appellate court "has authority to order correction, but
is not required to do so." Olano, 113 S. Ct. at 1778. For the
most part, this discretion should be exercised sparingly, and
7
should be reserved for the correction of those few errors that
"`seriously affect the fairness, integrity or public reputation
of the judicial proceedings.'" United States v. Young, 470 U.S.
1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)).
III. JOINDER AND SEVERANCE
III. JOINDER AND SEVERANCE
Appellant excoriates the government for bringing a
single indictment that joined a count relating to the UST robbery
with two counts relating to the BayBank robbery.3 In a similar
vein, he calumnizes the district court for refusing to sever the
ostensibly incompatible counts. The chastisement is unwarranted.
Although appellant now maintains that the counts were
improperly joined, he raises this objection for the first time on
appeal. Thus, we afford plain error review. See United States
v. Stackpole, 811 F.2d 689, 693 (1st Cir. 1987).
Separate offenses may be joined in the same indictment
if the charges are "of the same or similar character or are based
on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common
scheme or plan." Fed. R. Crim. P. 8(a). In determining whether
counts are properly combined for trial, we historically have
considered whether the charges are laid under the same statute,
whether they involve similar victims, locations, or modes of
3Appellant does not argue that linking the firearms count
with the robbery counts formed a basis for a claim of misjoinder.
Accordingly, we deem any such argument waived. At any rate, the
firearms charge was inextricably intertwined with the second
robbery, and could hardly be separated from it.
8
operation, and the time frame in which the charged conduct
occurred. See, e.g., United States v. Chambers, 964 F.2d 1250-51
(1st Cir. 1992); United States v. Gray, 958 F.2d 9, 14 (1st Cir.
1992). Under the present circumstances, joining the three counts
lodged against appellant does not constitute plain error.
The two robberies involved the same type of victims
(federally insured banks). They were charged under the same
statute (18 U.S.C. 2113), took place in the same locale
(downtown Boston), and occurred in the same time frame
(successive days). Such similarities have routinely been found
to justify joinder. See, e.g., Chambers, 964 F.2d at 1250-51
(finding joinder proper when robberies all involved federally
insured banks in the greater Boston area and occurred within a
ten-week period); Gray, 958 F.2d at 14 (similar). Furthermore,
the evidence here suggests that the first robbery was, in effect,
a training mission for the second. Therefore, we do not think it
would be plain error to conclude that the two robberies were
parts of "a common scheme or plan" as that term is used in Rule
8(a).
Appellant's contention that the district court erred in
refusing to sever the robbery counts, while arguably preserved,4
also lacks force. Though the Criminal Rules empower federal
4It is unclear whether appellant's severance motion which,
in terms, did not request that the two bank robbery counts be
tried separately properly preserved the severance issue for
review. Because severance was not required in any event, we
assume for argument's sake that the issue was sufficiently raised
in the court below.
9
courts to grant relief from prejudicial joinder of counts in
criminal cases, see Fed. R. Crim. P. 14, severance decisions are
ordinarily won or lost in the trial court. We will overturn the
denial of a motion for severance only for a patent abuse of
discretion. See United States v. Pierro, 32 F.3d 611, 616 (1st
Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); United States v.
Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 502
U.S. 1079 (1992). This discretion applies to refusals to sever
counts as well as to refusals to separate defendants for purposes
of trial. See, e.g., Chambers, 964 F.2d at 1251. Establishing
an abuse of discretion usually entails a showing that improper or
prejudicial joinder likely "deprived the defendant of a fair
trial." United States v. Nason, 9 F.3d 155, 158 (1st Cir. 1993),
cert. denied, 114 S. Ct. 1331 (1994).
Appellant faces a high hurdle, given Chambers, Gray,
and other cases in which we have upheld the trial court's refusal
to sever counts involving multiple bank robberies. He strives to
distinguish these cases on the ground that they involved more
than two robberies, and, thus, yielded telltale patterns. This
argument fails for two reasons. First, common sense indicates
that the greater the number of robberies, the greater the danger
of prejudice that joinder poses. Second, there is no shortage of
sound precedent upholding the joint trial of two and only two
robbery counts in a single indictment. See, e.g., United States
v. L'Allier, 838 F.2d 234, 240-41 (7th Cir. 1988); United States
v. Shearer, 606 F.2d 819, 820 (8th Cir. 1979).
10
Apart from this curious slant on the number of
incidents, appellant offers no basis for suspecting undue
prejudice. His bare allegation that, if the jury were to believe
that he was involved in one bank robbery, then it might also
(improperly) be led to believe from that fact alone that he was
involved in the other, is simply not enough. This type of
spillover is standard fare whenever counts involving discrete
incidents are linked in a single indictment. We have repeatedly
held that such a garden variety side effect, without more, is
insufficient to require severance. See United States v. Boylan,
898 F.2d 230, 246 (1st Cir.) (collecting cases), cert. denied,
498 U.S. 849 (1990). Moreover, the case for prejudice is
especially weak in this instance because the district court's
jury instructions delineated the separateness of the three counts
and made it clear that the jury had to consider each charge on
its own merits.5
In sum, we find no plain error in the joinder of the
three counts contained in the superseding indictment, and no
misuse of discretion in the district court's eschewal of a
severance.
IV. SUFFICIENCY OF THE EVIDENCE
IV. SUFFICIENCY OF THE EVIDENCE
Appellant challenges the sufficiency of the evidence in
three respects. He says that the proof did not show (1) that he
5We also note that, even if the robberies had been charged
in separate indictments, the UST robbery would in all probability
have been admissible to prove preparation, plan, or knowledge
regarding the BayBank heist. See Fed. R. Evid. 404(b).
11
participated in the UST robbery, (2) that he committed the
BayBank robbery, and/or (3) that the perpetrator of the BayBank
robbery carried a real gun. In assessing these challenges, we
scrutinize the evidence in the light most compatible with the
verdict, resolve all credibility disputes in the verdict's favor,
and then reach a judgment about whether a rational jury could
find guilt beyond a reasonable doubt. See Echeverri, 982 F.2d at
677; Maraj, 947 F.2d at 522-23; Boylan, 898 F.2d at 243.
On the sufficiency issues, a further obstacle impedes
appellant's progress. Where, as here, challenges to evidentiary
sufficiency are unpreserved the defendant moved for judgment of
acquittal at the end of the prosecution's case, but then failed
to renew the motion after presenting evidence on his own behalf
a special variant of the raise-or-waive rule applies.6 In such
straitened circumstances, an appellate court should stay its hand
unless intervention is necessary to prevent a clear and gross
injustice. See United States v. McDowell, 918 F.2d 1004, 1010
(1st Cir. 1990); United States v. Cheung, 836 F.2d 729, 730 n.1
(1st Cir. 1988) (per curiam); United States v. Greenleaf, 692
F.2d 182, 185 (1st Cir. 1982), cert. denied, 460 U.S. 1069
(1983).
A. The Bank Robberies.
A. The Bank Robberies.
Appellant's first two sufficiency challenges can be
6Of course, if a defendant files a timely post-verdict
motion under Fed. R. Crim. P. 29(c), he may escape the
consequences of his earlier procedural default. See United
States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992). In
this case, appellant proffered no such motion.
12
dispatched with alacrity. The government prosecuted appellant
for the UST robbery on the theory that he aided and abetted
Lynch's felonious conduct. See 18 U.S.C. 2 (1988).7 The jury
convicted him on this basis. Its finding is amply supported.
Criminal intent is an important element of aiding and
abetting, see United States v. Tarr, 589 F.2d 55, 59 (1st Cir.
1978), and the supposed lack of any such intent lies at the heart
of appellant's challenge. Proof of this element demands a
showing that the defendant consciously shared the principal's
knowledge of the underlying criminal act, and intended to help
the principal. See United States v. Albert, 773 F.2d 386, 390
(1st Cir. 1985). We hasten to add, however, that this showing
may be made wholly on the basis of circumstantial evidence.
We believe that the jury could have reached such a
conclusion here. Viewed favorably to the government, the
evidence suggests that appellant sought Lynch's help in learning
to rob banks, furnished transportation so that the two men could
rob a bank, discussed the prospect en route, stood watch while
Lynch held up the teller, facilitated a joint escape, and shared
fifty-fifty in the purloined fruits. These facts firmly
underbrace the jury's finding that appellant aided and abetted
Lynch in the commission of the robbery.
Appellant's challenge to the sufficiency of the
7The statute provides that: "Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a
principal." 18 U.S.C. 2 (1988).
13
evidence that he committed the BayBank robbery is jejune. Two
eyewitnesses, Aruin and Clavin, identified him in open court as
the perpetrator. Although appellant denigrates their
reliability, the jury was plainly entitled to accept the
identification and to find that appellant committed the crime.
B. The Firearms Count.
B. The Firearms Count.
Appellant fares equally poorly in his final challenge
to evidentiary sufficiency. The statute of conviction, 18 U.S.C.
924(c), requires proof beyond a reasonable doubt that the
person perpetrating the predicate offense used a real gun. See,
e.g., United States v. Kirvan, 997 F.2d 963, 966 (1st Cir. 1993).
Appellant tells us that the government failed to prove this
essential fact. We do not agree.
This court recognized in Kirvan that, in order to
convict under section 924(c), the gun must be real, but it "need
not be proven to be loaded or operable . . . ." Id. While "a
toy or a replica will not do," the prosecution satisfies its
burden simply by showing that the gun is a gun. Id.
Furthermore, the government's proof on this point need not reach
a level of scientific certainty. On the contrary, lay opinion
testimony may be employed to propel a finding that an object is
in fact a real gun.8 See, e.g., Parker v. United States, 801
8Kirvan illustrates the point. There, we found it
sufficient to justify a conviction that two witnesses identified
the object as a gun, and that it made a loud noise when dropped
(consistent with it being very heavy). See Kirvan, 997 F.2d at
966-67.
14
F.2d 1382, 1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070
(1987); United States v. Jones, 907 F.2d 456, 460 (4th Cir.
1990), cert. denied, 498 U.S. 1029 (1991).
Silhouetted against this backdrop, appellant's
assignment of error pales into insignificance. Three
eyewitnesses to the BayBank robbery, each of whom observed the
object gripped by appellant at close range, testified that it was
a gun. This evidence is enough to allow a rational jury to find
that appellant carried a real gun. Accordingly, appellant's
conviction under section 924(c) worked no injustice, let alone a
clear and gross injustice.
V. THE JURY INSTRUCTIONS
V. THE JURY INSTRUCTIONS
When reviewing a district court's instructions to the
jury, we look at the charge as a whole, not in isolated
fragments. See Boylan, 898 F.2d at 244; Mejia-Lozano, 829 F.2d
at 272. If no timely objection has been advanced at trial, see
Fed. R. Crim. P. 30 (specifying when and how objections to the
charge must be taken), even an improper instruction rarely will
justify the reversal of a criminal conviction. See Henderson v.
Kibbe, 431 U.S. 145, 154 (1977); United States v. Weston, 960
F.2d 212, 216 (1st Cir. 1992). So it is here.
In this instance, the district court warned the jury to
take a long, hard look at accomplice testimony.9 In appellant's
9To be exact, the court told the jury that the testimony of
an accomplice was "to be scrutinized with particular care because
there is an interest that the person had in saying something that
15
current view, the instruction should have been more elaborate;
the court should have described the nature of the witness'
interest in assuaging the government, told the jurors that their
perscrutation of such testimony must be more searching than that
afforded to other testimony, and reminded them in the same breath
that the government had to prove its points beyond a reasonable
doubt. Putting aside the obvious question of whether appellant
would have been entitled to such instructions if duly requested,
the claimed deficiencies are precisely the type of fine-tuning
that is consigned to the scrap heap if not called to the district
court's attention in a timeous manner. No matter how critically
these alleged shortcomings in the court's charge are evaluated,
they cannot conceivably sink to the level of plain error.
The raise-or-waive rule also hobbles appellant's
remaining complaint about the jury instructions. After noting
that the evidence anent eyewitness identification was
"straightforward," the judge told the jury:
There are some four billion people in the
world and in the natural course of things one
would expect some of them may look alike.
But, on the other hand, an experience such as
these witnesses had, may, indeed, make their
observation so intense that it is reliable in
establishing identity beyond a reasonable
doubt.
Although appellant could be correct in arguing that, in
actuality, an intensely stressful situation is often less
accurately remembered than is a more tranquil one, he makes this
would be looked on with favor by the government."
16
point at the wrong time and to the wrong court. While the
challenged instruction may not be a textbook model, we discern no
plain error in it.
VI. THE SUMMATION
VI. THE SUMMATION
Having wended our way across flat, easily negotiated
territory, we now reach more problematic turf. Here, the
topography features a tripartite claim of error addressed to the
government's summation.
We start with certain fundamental verities. "A
prosecutor is permitted vigorous advocacy, so long as he does not
stray into forbidden terrain." Palmariello v. Superintendent of
M.C.I.-Norfolk, 873 F.2d 491, 494 (1st Cir.), cert. denied, 493
U.S. 865 (1989). Thus, prosecutors need not pull their punches;
they may indeed, they should present their cases to criminal
juries zealously. Forcefulness in the pursuit of justice is to
be admired rather than condemned. Yet, while a prosecutor "may
strike hard blows, he is not at liberty to strike foul ones."
Berger v. United States, 295 U.S. 78, 88 (1935). This maxim is
particularly relevant to closing arguments, for such arguments
come at an especially delicate point in the trial process and
represent the parties' last, best chance to marshal the evidence
and persuade the jurors of its import. See, e.g., United States
v. Manning, 23 F.3d 570, 575 (1st Cir. 1994).
Of course, a prosecutor's obligation to stay within the
pale does not exist in a vacuum. A defendant has a corresponding
obligation to protect his own interests. When a defendant
17
defaults on this obligation by failing to make a contemporaneous
objection to questionable comments in the prosecution's closing
argument, the raise-or-waive rule applies. Afterthought claims
of improprieties allegedly occurring during the summation are
reviewed under the notably ungenerous plain error standard.
Consequently, reversal is justified only if the illegitimate
portion of the closing argument "so poisoned the well that the
trial's outcome was likely affected." Mejia-Lozano, 829 F.2d at
274.
In determining whether a prosecutor's miscues in final
argument require reversal under this hard-to-satisfy standard,
this court considers all the attendant circumstances, paying
special heed to factors such as (1) the extent to which the
prosecutor's conduct is recurrent and/or deliberate; (2) the
extent to which the trial judge's instructions insulated the jury
against, or palliated, the possibility of unfair prejudice; and
(3) the overall strength of the prosecution's case, with
particular regard to the likelihood that any prejudice might have
affected the jury's judgment. See id.; see also United States v.
Giry, 818 F.2d 120, 133 (1st Cir.), cert. denied, 484 U.S. 855
(1987). Using these criteria, we conclude that none of
appellant's claimed errors requires reversal.
A. Matters Dehors the Record.
A. Matters Dehors the Record.
Appellant maintains that, during the summation, the
prosecutor referred to matters not in evidence. Specifically,
the prosecutor gave a less than completely accurate account of
18
the prefatory conversation between appellant and Lynch on January
29. Appellant greeted Lynch, so the prosecutor said, by
imploring: "Maestro, show me how it's done." The prosecutor
added: "We know that Maestro is Mr. Lynch's nickname. Why?
Because he plays the organ in his father's church." Warming to
this theme, the prosecutor reiterated the point. He told the
jury that, as the two men walked into the UST branch, appellant
again said: "Maestro . . . show me the ropes."
There was, in fact, no evidence of Lynch's nickname and
no evidence that appellant made a request to be shown the ropes
as the robbers entered the bank. Withal, there was no
contemporaneous objection, and these canards scarcely justify
reversal under the plain error doctrine. Given that Lynch
admitted to his vocation as a bank robber, his nickname was
wholly irrelevant to the case. Moreover, the prosecutor gave an
innocent explanation of the moniker and appellant's own lawyer
twice referred to Lynch in front of the jury as "Maestro." As to
the second misstatement, there was evidence that appellant made
the request ("show me the ropes") previously on the day of the
robbery and on at least one earlier occasion. In other words,
the substance of the prosecutor's statement was true (although
the timing was awry).
On whole-record review, we conclude without serious
question that the allusions to matters dehors the record were
benign. Reversal is totally unwarranted.
B. The Prosecutor's Rebuttal.
B. The Prosecutor's Rebuttal.
19
Next, appellant assails the prosecutor's rebuttal,
which, he says, contained a minimum of three peccadilloes,
namely, (1) an implication that appellant had alerted the four
people who mugged Lynch and stole his booty, (2) a suggestion
that Lynch should be believed because he suffered from sickle-
cell anemia and had tested positive for HIV, and (3) an
intimation that Clavin, during her testimony, lowered her voice
"out of fear."
These accusations do not withstand scrutiny. The
prosecutor made the first of the cited comments without objection
and in direct response to defense counsel's argument that Lynch
had turned against Taylor because the latter did not come to his
aid during the mugging. We have previously expressed our
reluctance to find plain error when a prosecutor's remarks are
made to rebut specific statements by defense counsel, and are
proportionate to that end. See Whiting, 28 F.3d at 1302; Mejia-
Lozano, 829 F.2d at 274. Here, our reluctance ripens into
outright unwillingness. Similarly, the prosecutor's remarks
about Lynch's health drew no contemporaneous objection. Those
remarks were obviously designed to rebut the defense argument
that Lynch was hoping to earn a reduced sentence by testifying
against Taylor. The statement recounted facts in evidence, and
did not constitute either vouching or an improper appeal to the
jury's sympathies. Finally, the remark about Clavin's demeanor
was not out of line. The jury saw and heard her testimony, and
20
could determine for itself her state of mind.10 See, e.g.,
United States v. Mount, 896 F.2d 612, 625 (1st Cir. 1990)
("Although it is the jury's job to draw inferences, there is
nothing improper in the Government's suggesting which inferences
should be drawn.").
C. The Fifth Amendment Issue.
C. The Fifth Amendment Issue.
The capstone of appellant's asseverational array is his
anguished assertion that the prosecutor's summation contained
comments on appellant's election not to testify, in derogation of
rights secured to appellant under the Fifth Amendment. We quote
the disputed portion of the prosecutor's summation:
Is there any evidence that Mr. Taylor
said, "Oh, my God, I've been misled. This is
not going to be money from his father. I've
got to get out of here. I've got to warn my
friend, Lucille Aulmond. She gave me rides
in the past, but this is something
different." He stayed true in his anchor
position.
Mr. Lynch went up to the window,
demanded money. He was very unafraid. Mr.
Lynch demanded money that wasn't his. Did
Mr. Taylor say: Oh, my God, I'm going to
leave this place and warn my friend, Lucille
Aulmond? No. He stayed true to that anchor
position. And, in fact, he yelled, "Come on,
let's go."
Lynch points to the door. Mr. Taylor
waits there and does he say: Look, just
because I'm here, I'm sorry what happened. I
didn't know it was going to happen. Is
everybody all right? I know who was
responsible.
10While defense counsel did not interject a contemporaneous
objection during the prosecutor's rebuttal, he did bring this
remark to the court's attention at a sidebar conference
immediately following the summations. The judge refused to
resurrect the matter, stating: "I will leave it. It is up to
the jury to make that determination." We agree.
21
He left with the money. . . . When he
got back to the car, you heard Lucille
Aulmond, and she said, "What happened?" Does
he say: Lucille, he robbed a bank; I didn't
know it was going to happen; I'm sorry. "I
hit a man in the face" was what you got,
instead. Not the truth, just another part of
the lie . . . .
And they drive two blocks away. Mr.
Lynch gets out of the car. Does Terrence
Taylor stay with his friend? "Lucille, I'm
involved in this. You shouldn't have been
involved. I didn't even know about it.
Let's go to the police and clear this whole
thing up." He went with the money. Her job
was done.
He took the money. . . . Did he take
his share of the money and say, "Look, this
is not my money; there it is, police, look
for bait bills; I'm turning back money; I
have nothing to do with this."
It is a bedrock principle that a prosecutor may not
comment on a defendant's exercise of the right to remain silent.
See United States v. Robinson, 485 U.S. 25, 30 (1988); Griffin v.
California, 380 U.S. 609, 615 (1965); United States v. Sepulveda,
15 F.3d 1161, 1186 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714
(1994). Even an indirect or inferential comment on a defendant's
silence can transgress the Fifth Amendment. See, e.g., United
States v. Hardy, 37 F.3d 753, 757 (1st Cir. 1994); United States
v. Lavoie, 721 F.2d 407, 408 (1st Cir. 1983), cert. denied, 465
U.S. 1069 (1984).
Because "[t]here is no bright line marking the
precipice between a legitimate assessment of defense witnesses
and an impermissible encroachment upon the accused's silence,"
Sepulveda, 15 F.3d at 1186, prosecutors must tread carefully on
this terrain. A prosecutor who "attempts to define exactly the
22
edge of the precipice approaches at his peril." Rodriguez-
Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969). In
evaluating whether a prosecutor has gone too far, we must ask
whether, in the particular circumstances of a given case, the
language used by the prosecutor appears to have been designed to
yield the improper inference, or, if not so designed, whether it
was such that jurors would probably interpret it as a commentary
on the accused's failure to take the witness stand. See United
States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987), cert.
denied, 482 U.S. 929 (1987); United States v. Monaghan, 741 F.2d
1434, 1437 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985).
Notwithstanding these constraints, no Fifth Amendment
violation inheres in comments on a defendant's decision to remain
silent in a context outside the legal process. For example, in
Lema v. United States, 987 F.2d 48 (1st Cir. 1993), we found
nothing amiss in a prosecutor's observation that the defendant
remained silent during two drug transactions. The comment did
not transgress the Fifth Amendment because it referred to
defendant's silence at the scene of the crime rather than at
trial. See id. at 56; see also United States v. Ortiz, 966 F.2d
707, 714 (1st Cir. 1992) (holding that defendant's silent
presence at site of drug transaction "patently implied
participation"), cert. denied, 113 S. Ct. 1005 (1993).
In this case, the government insists that the
challenged statements referred to appellant's silence before,
during, and after the UST robbery, not to his silence at trial.
23
When a prosecutor's comments, fairly viewed, are susceptible to
two plausible meanings, one of which is unexceptionable and one
of which is forbidden, context frequently determines meaning.
See Sepulveda, 15 F.3d at 1187; United States v. Lilly, 983 F.2d
300, 307 (1st Cir. 1992). Where feasible, a reviewing court
should construe ambiguity in favor of a proper meaning:
[A] court should not lightly infer that a
prosecutor intends an ambiguous remark to
have its most damaging meaning or that a
jury, sitting through a lengthy exhortation,
will draw that meaning from the plethora of
less damaging interpretations.
Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974); accord
Lilly, 983 F.2d at 307. This rule of construction has heightened
desirability in the absence of a contemporaneous objection for,
when the target of the comments does not interrupt and register a
timely objection, it seems especially appropriate to "give the
arguer the benefit of every plausible interpretation of her
words." Sepulveda, 15 F.3d at 1187. 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.
Id. at 1188.
Evaluated against this benchmark, we do not believe
that the quoted remarks trespassed on appellant's Fifth Amendment
rights. While a suspicious mind could construe what was said as
a comment on appellant's decision not to testify, the
prosecutor's words are more plausibly interpreted as a comment on
appellant's silence during the commission of the crime. After
24
all, Taylor had labored to develop a defense based on his lack of
foreknowledge concerning Lynch's felonious intent. Appellant's
silence throughout the commission of the crime tends to undermine
this defense, and the prosecutor's comments were most likely a
clumsy effort to seize upon this weakness.
We will not paint the lily. Given the absence of a
contemporaneous objection, we must cede to the government the
benefit of a legitimate, plausible interpretation of the
prosecutor's words. On this basis, we hold that the remarks in
question did not amount to a constitutionally prohibited comment
on appellant's declination to testify at trial.
We add that, even if the prosecutor's comments crossed
the line, our traditional three-part analysis suggests that
reversal would be unwarranted. First, although the comments were
repeated several times, there is no reason to conclude that the
prosecutor intentionally drew attention to appellant's silence at
trial. Second, despite the lack of an objection, the district
judge instructed the jury with painstaking care regarding the
government's burden of proof, appellant's presumed innocence, and
his constitutional right to refrain from testifying. Among other
things, the judge admonished that "no adverse inference is to be
drawn from his exercise of his election not to take the stand."
We are confident that this explicit instruction was sufficient to
combat any impermissible inference that might have been drawn
from the prosecutor's statements.
Last but far from least, see Mejia-Lozano, 829 F.2d
25
at 274 (explaining that "the strength of the government's case is
an important factor in considering the likely effect of
borderline rhetoric") the possibility that the comments, even
if misconstrued, affected appellant's substantial rights is
diminished by the potency of the government's proof. Lynch's
testimony was unequivocal and corroborated on many points.
Moreover, several witnesses to the UST robbery noted appellant's
presence and described his behavior in a way that strongly
suggested his complicity in the crime. In view of the
substantial evidence against appellant, we find it highly
unlikely that the jury could have been swayed by the prosecutor's
amphibolous remarks.11
VII. CONCLUSION
VII. CONCLUSION
We need go no further. For aught that appears,
appellant was fairly tried and justly convicted. The judgment
below is, therefore,
Affirmed.
Affirmed.
11If this were not enough, the general principles governing
plain error review caution us in this case against exercising our
discretion in Taylor's behalf. At worst, the prosecutor's
comments were veiled and any impermissible implication arising
out of them was attenuated. We do not believe that this line of
argument could have "seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings." Olano, 113 S. Ct.
at 1776 (internal quotation marks omitted).
26