United States Court of Appeals
For the First Circuit
No. 92-1893
UNITED STATES,
Appellee,
v.
TRENT MANNING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Robert B. Mann with whom Mann & Mitchell was on brief for
appellant.
Sean Connelly, Attorney, U.S. Department of Justice, with whom
Edwin J. Gale, United States Attorney, District of Rhode Island, was
on brief for appellee.
May 6, 1994
STAHL, Circuit Judge. In this appeal, defendant-
STAHL, Circuit Judge.
appellant Trent Manning challenges, on several grounds, his
convictions for possession with intent to distribute cocaine,
use of a firearm during and in relation to a drug trafficking
crime, and possession of a firearm by a convicted felon.
Manning's principal appellate claim is that improper comments
made by the prosecutor during closing arguments undermined
the fairness of his trial. After carefully reviewing the
record, we conclude that the prosecutor's comments did so
infect the proceedings below that Manning is entitled to a
new trial. Accordingly, confining our discussion and
analysis to the prosecutorial misconduct issue, we vacate the
convictions.
I.
BACKGROUND
A. Relevant Factual Background
It is undisputed that late in the afternoon on
October 7, 1991, several members of the Providence Police
Department executed a search warrant at Manning's mother's
house, located at 151 Doyle Avenue in Providence, Rhode
Island. In the course of their search, the police officers
seized, inter alia, a brown briefcase which contained the
material that formed the basis of the charges in the
indictment: two bags of cocaine weighing 124.64 grams,
-2-
2
various drug paraphernalia, a loaded .9 millimeter handgun,
and six copper pipe bombs.
It also is undisputed that just prior to the raid,
two men drove up to Manning's mother's house in Manning's red
Jeep Cherokee. The man in the passenger seat was one Sean
Duncan, who was detained by the police but never charged in
connection with this case. The vehicle's driver, however,
was not apprehended at the scene. The identity of the driver
was (and is) perhaps the most hotly contested issue in this
case, as it was (and is) the government's theory that the
driver brought the brown briefcase into the house. The
government argued successfully that the driver was Manning;
Manning and Duncan testified that the driver was one Troy
McKenzie. The primary government witness on the issue of the
driver's identity was Detective Joseph Lennon, a member of
the search team that day. Lennon testified that, after
having been given the order to execute the search warrant, he
approached the rear of 151 Doyle Avenue, where he saw
Manning, whom he knew and with whom he had conversed on other
occasions, standing outside the Cherokee and in front of the
house's garage. Lennon testified that Manning was holding
the brown briefcase. Lennon also testified to seeing Duncan
seated in the passenger seat of the Cherokee.
Lennon further testified that, upon seeing Manning,
he identified himself as a police officer and, with gun
-3-
3
drawn, ordered Manning to stop. According to Lennon's
testimony, Manning ignored this directive, walked slowly into
the garage, and closed and locked the door behind him.
Lennon testified that his pursuit of Manning into the
building was delayed by the presence of Manning's rottweiler,
which was running around loose in the driveway area behind
the house. After eventually gaining entrance to the garage
(about three to five minutes later), Lennon found and seized
the brown briefcase. He did not, however, find Manning in
the house.
Detective David Lussier also testified concerning
the identity of the driver of the Cherokee just prior to the
raid. Lussier, who also had known Manning for some time,
testified that he observed Manning, along with a companion,
drive by his surveillance position (located about 50 yards
from the house in a parking lot which provided a direct view
into the rear yard of 151 Doyle Avenue) just three or four
minutes before the raid. Indeed, Lussier testified that he
ordered that the warrant be executed at that time precisely
because he feared that eye contact between himself and
Manning had caused his surveillance to be compromised. After
ordering the raid, Lussier testified that he drove to the
front of the house, entered it through the front door, and
proceeded to the basement, where he found a broken window
through which Manning apparently had escaped.
-4-
4
In contrast to the detectives' testimony, both Sean
Duncan and Manning testified that the driver of the car at
the time of the raid was (as noted above) Troy McKenzie. The
substance of their testimony was that Duncan and Manning had
been riding around together throughout the day, that they had
picked up McKenzie at some point in the afternoon, and that
they thereafter drove to the residence of Manning's
girlfriend. At this point, Manning gave McKenzie and Duncan
$40 and asked them to take his rottweiler, which was being
kept at his mother's house, to the veterinarian for a rabies
shot. McKenzie and Duncan then drove the Cherokee over to
Manning's mother's house to pick up the dog. Duncan
testified that McKenzie entered the house to fetch the dog
while he waited in the car. Shortly thereafter, the raid
occurred. Duncan also testified that he had "no idea" was
happened to Troy McKenzie after he entered the house.
One week after the execution of the search warrant,
Manning voluntarily turned himself in to the police. He
subsequently was charged with and convicted of the crimes
noted above, all of which necessitated a finding that Manning
was the person in possession of the brown briefcase who
disappeared into 151 Doyle Avenue at the time of the raid.
B. The Prosecutor's Comments
Manning complains of four different comments made
by the prosecutor during the course of his closing argument.
-5-
5
First, Manning contends that the prosecutor improperly
vouched for the credibility of certain prosecution witnesses
during the following colloquy:
[PROSECUTOR]: If Lussier is going to
come in and lie to you he could have done
that very, very easily. There's a
million little ways they could have given
it to the Defendant. But they cannot.
The prosecution witnesses cannot engage
in that kind of conduct. They're bound
by the truth.
[DEFENSE COUNSEL]: I object to that,
your Honor.
THE COURT: Overruled.
[PROSECUTOR]: They're bound by their
oath and limits of honesty. The last
thing you might ask yourselves ---
[DEFENSE COUNSEL]: I object to that,
again I have a motion.
THE COURT: Overruled, motion denied.
(Hereinafter "First Passage"). The government concedes that
this passage contains improper witness-vouching by the
prosecution.
Next, Manning argues that the prosecutor engaged in
additional improper witness-vouching and inappropriately
implied that he had additional incriminating evidence when,
in responding to a defense argument concerning the lack of
probative fingerprint evidence on the items in the brown
briefcase, he stated:
[PROSECUTOR]: [W]hen we get to this gun
and these bombs and this dope we've got
an eyewitness who knows the Defendant and
-6-
6
saw it all in his hands. So it doesn't
matter whether there's a print on it or
not. But they looked anyways and what
did that BCI officer tell you? He told
you that there were some partial prints
on those items but nothing that was good
enough to use for identification
purposes. Nothing that has sufficient
points of comparison on it for him to be
positive and we have to be fair, we have
to be positive. Prosecution ---
[DEFENSE COUNSEL]: I object to that, Judge.
THE COURT: Overruled.
[PROSECUTION]: Prosecution must always
be fair. . . .
(Hereinafter "Second Passage"). The government acknowledges
that this prosecutorial argument also contained improper
witness-vouching, but denies that it implied the existence of
additional incriminating evidence. Rather, the government
contends that it was an effort to suggest "that prosecution
witnesses had not created false evidence[.]"
Third, Manning asserts that the prosecutor
impermissibly appealed to the jury's emotions when, near the
conclusion of the prosecutor's initial closing argument, the
following exchange took place:
[PROSECUTOR]: Twelve responsible people
will deliberate on this case. Take
responsibility for yourselves. Take
responsibility for your community.
[DEFENSE COUNSEL]: I object to that.
THE COURT: The jury's responsibility is
to follow the Court's instructions and
find the facts.
-7-
7
(Hereinafter "Third Passage"). The government denies that
thisargumentconstituted animproperappealtothe jury'semotions.
Finally, Manning charges that the prosecutor again
impermissibly appealed to the jury's emotions at the
conclusion of his rebuttal argument:
[PROSECUTOR]: Convict the Defendant
fairly because the facts and the law
compel conviction. Convict the Defendant
because justice compels conviction.
[DEFENSE COUNSEL]: I object to that,
too. . . .
THE COURT: I direct the jury to ignore
the last statement of the United States
Attorney. Your responsibility, as I told
you at the beginning, is to determine
whether or not, in light of the law that
is given to you by the Court, the
government has met its burden of proving
the Defendant guilty beyond a reasonable
doubt. . . .
(Hereinafter "Fourth Passage"). Although it is not entirely
clear, the government appears to concede that this argument
was improper. See Government's Brief at 41 (acknowledging
that this argument "is somewhat similar to exhortations that
have been deemed impermissible").
II.
DISCUSSION
Manning's prosecutorial misconduct argument, as
developed in his brief and at oral argument, proceeds along
the following lines. First, Manning correctly notes that, in
order to convict him of the crimes with which he was charged
-8-
8
in the indictment, the jury was obliged, as a threshold
matter, to find that he was the person who disappeared into
the garage at 151 Doyle Avenue while holding the brown
suitcase. Next, Manning observes that this finding
necessarily must have been anchored upon determinations (1)
that Detectives Lennon and Lussier were credible witnesses on
this issue, and (2) that he and Duncan were not. Finally,
Manning contends that the improper witness-vouching committed
by the prosecutor, which was allowed by the trial court over
his objection, both alone and in conjunction with the
prosecutor's implication that there existed additional
inculpatory evidence and the prosecutor's other inflammatory
rhetoric, so compromised the jury's ability to make these
essential and liminal credibility determinations that his
trial was rendered fundamentally unfair. We find Manning's
reasoning to be persuasive.
We begin by laying the groundwork for our analysis.
First, we think that the First and Second Passages contain
improper witness-vouching by the prosecution. See, e.g.,
United States v. Innamorati, 996 F.2d 456, 482 (1st Cir.)
(prosecutor may not vouch for government witnesses), cert.
denied, 114 S. Ct. 409 and 114 S. Ct. 459 (1993); United
States v. Martin, 815 F.2d 818, 821-23 (1st Cir.), cert.
denied, 494 U.S. 825 (1987). Next, we believe that the Third
and Fourth Passages include improper appeals to the jury to
-9-
9
act in ways other than as a dispassionate arbiter of the
facts. See, e.g., United States v. Young, 470 U.S. 1, 17
(1985) (prosecutor erred in telling jury to "do its job");
United States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir. 1986)
(prosecutor erred in urging jury to "do its duty"). Finally
we think it rather obvious that, when read in context, the
prosecutor's comments in the Second Passage were an attempt
to counter defense counsel's anticipated argument relating to
the lack of fingerprint evidence on the items seized from the
brown briefcase. Insofar as the comments were intended to
relieve the jury of any misapprehension that there were no
fingerprints on these items, these comments were not
improper. Given that defense counsel had not suggested that
the partial prints were not Manning's, cf. Young, 470 U.S. at
11-14 (discussing the "invited response" doctrine), however,
the insinuation that the partial prints were inculpatory,
which we believe inhered at least in the prosecutor's
statement that "we have to be fair, we have to be positive,"
was impermissible. See e.g., United States v. Udechukwu, 11
F.3d 1101, 1106 (1st Cir. 1993) (prosecutor may not imply
that the government has inculpatory information that is not
in evidence); United States v. Smith, 982 F.2d 681, 683 (1st
Cir. 1993) (similar).1
1. Additionally, we note that the improper arguments
challenged on appeal are by no means the only inappropriate
comments made to the jury by the prosecution during closing
-10-
10
We also feel constrained to express our belief that
the government's overreaching in this case was not entirely
limited to the prosecutor's conduct at trial. While we
acknowledge that the government was forthright in admitting
that the prosecutor engaged in impermissible witness-
vouching, we are surprised at several of the other positions
staked out in the government's appellate brief. First, we
are hard-pressed to comprehend, let alone agree with, the
arguments. By way of illustration, we offer the following
passage where the prosecutor described his view of the
"roles" played by the judge, jury, and, especially, defense
counsel in a criminal trial:
[PROSECUTOR]: We all play roles in this
trial. You have seen what the Judge does
and ruled on the law [sic]. As a jury,
you serve a role, a function in this case
too, you represent the people of the
United States, the citizens of the State
of Rhode Island. By your verdict you
will speak for those citizens. By your
verdict you will determine---
[DEFENSE COUNSEL]: I object to that.
THE COURT: Just a moment. The jury will
make the decision among themselves based
on the instructions and the evidence
they've heard.
[PROSECUTOR]: Yes, your honor. You are
fact finders and in order to find the
facts one of the things you have to do is
to decide which of the facts are true.
You will have to assess the credibility
of the witnesses. Some prosecutors get
up and say that the role of defense
attorney is to cloud the issues or make
smoke screens. I liken them to
Shakespeare's players, full of sound and
fury signifying nothing . . . .
-11-
11
government's characterization of the Second Passage, "in full
context," as an effort to suggest "that prosecution witnesses
had not created false evidence" (a claim the defense never
made). Instead, as noted above, we think it plain (1) that
the government was responding to defense counsel's
anticipated argument that the jury should consider the
absence of probative fingerprint evidence on the items found
in the brown briefcase to be exculpatory, and (2) that, in
stating that the prosecution "ha[s] to be fair" and "has to
be positive," the prosecutor went too far and hinted that the
partial prints tended to inculpate Manning.
The government's references to extra-circuit
caselaw and strained attempt to distinguish the inflammatory
rhetoric here from the cases cited by Manning also strike us
as inappropriate. By now, we think it should be beyond
question that, in this circuit at least, arguments urging a
jury to act in any capacity other than as the impartial
arbiter of the facts in the case before it are improper. See
Mandelbaum, 803 F.2d at 44; cf. Arrieta-Agressot v. United
States, 3 F.3d 525, 529-30 (1st Cir. 1993) (inflammatory
arguments distract jury from the only issue presented in a
case: whether the evidence establishes guilt beyond a
reasonable doubt).
We turn now to our analysis. In this circuit, we
have identified several factors relevant to a determination
-12-
12
of whether prosecutorial misconduct has "`so poisoned the
well,'" see United States v. Hodge-Balwing, 952 F.2d 607, 610
(1st Cir. 1991) (quoting United States v. Capone, 683 F.2d
582, 586-87 (1st Cir. 1982)), that a new trial is required.
Although we have used slightly varying terminology in
describing these factors, the common denominators are (1) the
severity of the misconduct; (2) the context in which it
occurred; (3) whether the judge gave any curative
instructions and the likely effect of such instructions; and
(4) the strength of the evidence against the defendant. See,
e.g., Udechukwu, 11 F.3d at 1106; Arrieta-Agressot, 3 F.3d at
528-30; Hodge-Balwing, 952 F.2d at 610; United States v.
Quesada-Bonilla, 952 F.2d 597, 601-02 (1st Cir. 1991);
Capone, 683 F.2d at 585-86. These factors guide our
conclusion as to whether the misconduct likely affected the
trial's outcome. E.g., Udechukwu, 11 F.3d at 1106; Arrieta-
Agressot, 3 F.3d at 528.2
2. This line of authority, which derives from Capone, also
often speaks of the need to deter future prosecutorial
misconduct, e.g., Udechukwu, 11 F.3d at 1106; Quesada-
Bonilla, 952 F.2d at 602; United States v. Brown, 938 F.2d
1482, 1489 (1st Cir.), cert. denied, 112 S. Ct. 611 (1991),
Capone, 683 F.2d at 586, as an additional legitimate basis
for reversal. As we have previously noted, however, see
Smith, 982 F.2d at 686 n.8; United States v. Osorio, 929 F.2d
753, 763 (1st Cir. 1991), and as the government argues here,
our power to act solely on this basis has, at the least, been
significantly circumscribed by the Supreme Court, see United
States v. Hasting, 461 U.S. 499, 506 (1983) (use of
supervisory power to deter prosecutorial misconduct
inappropriate where error in case-at-bar was harmless). At
any rate, while we fervently hope that our decision might
-13-
13
In this case, we think that all of these factors
militate in favor of reversal. The prosecutorial
overreaching that took place here, while certainly not
conscience-shocking, was pervasive. Moveover, it occurred
during closing arguments -- the last words spoken to the jury
by the trial attorneys -- and in no way was provoked by
improper arguments of defense counsel. Cf., e.g., United
States v. Machor, 879 F.2d 945, 956 (1st Cir. 1989), cert.
denied, 493 U.S. 1081 (1990) and 493 U.S. 1094 (1990).
More importantly, the district court not only
failed to give curative instructions to counter the improper
First and Second Passages, but it also tacitly indicated that
the arguments in these Passages were proper by overruling
defense counsel's contemporaneous objections to them.3 As a
result, we think it likely that the jury inferred that
Detectives Lennon and Lussier, as both law enforcement
officials and prosecution witnesses, could properly be
considered as having a heightened duty to testify honestly.
have the effect of deterring prosecutors from straying into
forbidden territory in the future, we emphasize that today's
result is in no way informed by a deterrent animus.
3. With regard to the Third and Fourth Passages, while
failing to tell the jury to disregard the prosecutor's
comments, the district judge did remind the jury that its
responsibility was to find the facts. Thus, we think it
unlikely that a significant amount of prejudice was
engendered by the inflammatory rhetoric in those Passages.
Accordingly, we restrict our analysis to the likely effects
of the witness- vouching and hints at the existence of
additional inculpatory evidence in First and Second Passages.
-14-
14
Of course, such an inference undermines the impartiality with
which the jury is supposed to make credibility
determinations.4 Moreover, as we have stated, we think that
the jury could have inferred from the "we have to be fair, we
have to be positive" comments that the partial fingerprints
on the items in the brown briefcase were Manning's.
This leads to our final and most important point.
While there may have been abundant evidence in this case that
Manning was a drug dealer and that the drug paraphernalia
seized at 151 Doyle Avenue was Manning's, the question of
whether Manning committed the crimes with which he was
charged in the indictment (i.e., possession of the contraband
items seized from the brown briefcase) turned entirely on
whether, with regard to the issue of who carried the brown
briefcase into 151 Doyle Avenue, the jury believed Detectives
Lennon and Lussier or whether it believed Manning and Duncan.
In our view, each of the witnesses gave a plausible account
on this threshold question; that is to say, neither version
of who was carrying the briefcase was inherently unlikely to
4. In so stating, we obviously are unconvinced by the
government's argument that the district court's admonition,
in its final instructions, that "the United States Government
stands no higher before this Court than does Defendant" was
sufficient to cure both the witness-vouching in the First and
Second Passages and the effect of the court's overruling of
defense counsel's contemporaneous objections. Indeed, this
instruction, referring as it does to "the United States
Government," in no way rebuts the above-noted implication
that Detectives Lennon and Lussier, as Providence police
officers, had a heightened duty to testify honestly.
-15-
15
be true. Given this, and given the further fact that we are
precluded from making independent credibility determinations
on appeal, see United States v. Alvarez, 987 F.2d 77, 83 (1st
Cir.), cert. denied, 114 S. Ct. 147 (1993), the question
before us really is whether the prosecutorial misconduct in
the First and Second Passages (which, as we have stated,
significantly interfered with the jury's ability to make an
essential and liminal credibility determination) was likely
to have affected the trial's outcome, see, e.g., Udechukwu,
11 F.3d at 1106; Arrieta-Agressot, 3 F.3d at 528. We are
compelled to conclude that this question must be answered in
the affirmative. Accordingly, Manning is entitled to a new
trial.
III.
CONCLUSION
Nearly sixty years ago, the Supreme Court stated:
The United States Attorney is the
representative not of an ordinary party
to a controversy, but of a sovereignty
whose obligation to govern impartially is
as compelling as its obligation to govern
at all; and whose interest, therefore, in
a criminal prosecution is not that it
shall win a case, but that justice shall
be done. As such, he is in a peculiar
and very definite sense the servant of
the law, the twofold aim of which is that
guilt shall not escape or innocence
suffer. He may prosecute with
earnestness and vigor -- indeed, he
should do so. But, while he may strike
hard blows, he is not at liberty to
strike foul ones. It is as much his duty
to refrain from improper methods
-16-
16
calculated to produce a wrongful
conviction as it is to use every
legitimate means to bring about a just
one.
Berger v. United States, 295 U.S. 78, 88 (1935). For the
third time in the last six months, we find ourselves in the
regrettable position of vacating a conviction because a
United States Attorney has failed to honor sufficiently these
precepts. See Udechukwu, 11 F.3d at 1106; Arrieta-Agressot,
3 F.3d at 530; see also United States v. Moreno, 991 F.2d
943, 949-50 (1st Cir.) (Torruella, J., dissenting) (arguing,
inter alia, that the prosecutorial misconduct in that case
warranted reversal of defendant's conviction), cert. denied,
114 S. Ct. 457 (1993).
Vacated and remanded.
-17-
17