United States v. Sullivan

United States Court of Appeals
For the First Circuit

No. 95-1719

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS SULLIVAN,

Defendant, Appellant.

No. 95-1760

UNITED STATES OF AMERICA,

Appellee,

v.

THOMAS PLATT,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Selya, Stahl and Lynch, Circuit Judges.

Judith H. Mizner for appellant Dennis Sullivan.

Perry O'Brian for appellant Thomas Platt.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, was on brief, for

appellee.

May 31, 1996

-2-

LYNCH, Circuit Judge. An armed robbery of the
LYNCH, Circuit Judge.

Country Hospitality Inn in Bangor, Maine in 1994 that netted

the robbers approximately $520 was prosecuted federally.

Defendant Dennis Sullivan was sentenced for the crime to

spend almost the next thirty years of his life in prison.

Defendant Thomas Platt was sentenced to more than thirty

years. They appeal, ably arguing that the prosecutor was

overly zealous, the evidence insufficient and the

instructions deficient. While the prosecutor overstepped in

asking one witness to comment on the truthfulness of

another's testimony, the misstep was harmless error. The

prosecution presented enough evidence to prove its case and

the instructions contained no error. We affirm.

I

Two masked men, one with a sawed-off shotgun,

robbed the Inn in the early morning of July 28, 1994. The

Inn's night manager was faced with the shotgun by a man who

jumped over the countertop and told the manager to look

straight ahead and not at him. Startled, the manager did not

get a full look at the robber. He did get a good enough look

to testify that the robber was a man of medium build, between

5'8" and 5'10" high, weighing between 140 and 160 pounds and

in his early to mid-twenties. The robber wore some sort of

ski mask, or combination of masks, and dark clothing. The

manager heard, but did not see, a second robber. The robbers

-3-
-3-

took the manager's checkbook, his $160 in cash, and his

grocery store and bank cards. The robber with the gun asked

the manager where the Inn's money was. The manager told him

it was in a drawer. The second robber said that he had

gotten the drawer open and the robbers took the $360 inside.

The robbers told the manager to lie down on the floor. They

taped his eyes and mouth shut with duct tape and fled.

Shortly thereafter, the police stopped a car with

four men but released them. In the car were the defendants

and two companions, Dale Braley and Timothy Boudreau. Braley

and Boudreau eventually became cooperating witnesses.

Meanwhile the investigation proceeded. A police

dog followed the robbers' scent across the field around a

barn next to an abandoned house. At the house the police

observed tire tracks from a car that had rapidly accelerated.

Later, a citizen observed a maroon bag on a nearby roadside

and told the police about it. The bag contained, among other

things, a sawed-off shotgun, a locked box with a shoulder

holster inside of it, two masks, dark sweatshirts and

camouflage hats. It also contained the rest of the roll of

the duct tape used to bind the manager, the manager's

checkbook and his bank cards. The bag had a tag bearing the

name "Angela Turner." Ms. Turner, it turned out, was Platt's

girlfriend.

-4-
-4-

The scheme unravelled. The police followed leads

to Braley and Boudreau, who incriminated Platt and Sullivan

while minimizing their own roles in the crime. Hearing the

police were looking to question them, Platt and Sullivan

disappeared. But when arrest warrants were issued, they

surrendered.

Sullivan and Platt were charged with conspiracy to

obstruct commerce by robbery in violation of 18 U.S.C.

1951, obstructing commerce and attempting the same by

committing robbery in violation of 18 U.S.C. 1951 and 2,

and using or carrying a firearm in relation to a crime of

violence, and aiding and abetting the same, in violation of

18 U.S.C. 924(c) and 2. Platt and Sullivan were each

charged individually with possession of a firearm not

registered to them in the National Firearms Registration and

Transfer Record in violation of 26 U.S.C. 5861(d) and

5871. They were also each charged individually with being

felons in possession of firearms, in violation of 18 U.S.C.

922(g)(1), 924(a)(2) and 924(e)(1). They were convicted

on all counts save for Sullivan's acquittal on the two

firearm possession counts.

It was clear that the four men were connected with

the crime and two had actually committed it. The question

was which two. At trial the theory of defense was that

Braley and Boudreau had done it and that there was no

-5-
-5-

reliable identification of the defendants. While a footprint

was found on the Inn manager's countertop, it did not appear

to belong to either Sullivan or Platt and the police did not

do the work to identify whose footprint it was.

At trial, Braley testified that the foursome had

decided to commit a crime and went riding around in a car.

Braley and Boudreau both said that Sullivan, who had worked

as a pizza delivery person, mentioned that the Inn would have

only one employee there and would be a good target for a

robbery. Braley testified that they drove to the abandoned

house near the Inn. Sullivan and Platt donned masks and

camouflage gear and walked across a field toward the Inn.

Later, Sullivan and Platt returned. They "dash[ed]" into the

car and told Braley to get out of there because they had seen

a cop. In the car, Sullivan said, "I got that guy good."

While holding his finger up to the back of Braley's head as

if he were pointing a gun, Sullivan said he had jumped over

the motel counter and told the night manager to "[g]et right

down on the ground." After the group had driven about eight

miles, they noticed a police car coming toward them and,

afraid they might be stopped, tossed the maroon bag out the

window.

The girlfriends of the defendants implicated them

in the crimes, but attempted to recant those statements at

trial. Braley and Boudreau acknowledged they had been

-6-
-6-

charged with involvement with the robbery in state court.

Another witness, Vaughn Stevenson, testified that Platt

wanted to purchase the sawed-off shotgun and that Stevenson,

who acted as middleman for the transaction, got the weapon

from the seller and put it into Platt's closet. Stevenson's

friend, Danny Cray, also testified that Platt said he wanted

to purchase the shotgun and that Stevenson had delivered the

shotgun to the place where Platt was living.

Sullivan argues that the evidence was insufficient

to support his conviction of using or carrying a firearm in

connection with a crime of violence, particularly in light of

his being acquitted on the charges of possession of an

unregistered firearm and being a felon in possession of a

firearm. Sullivan also argues the instruction on reasonable

doubt was in violation of his due process rights and that

several prosecutorial actions, including the prosecutor's

asking Sullivan to comment on the veracity of another

witness's testimony, violated due process. Finally, under

different labels he attempts to mount an ineffective

assistance of counsel claim.

Platt argues that the district court erred in

permitting the prosecutor to question Sullivan as to whether

the other witness lied. In addition, he argues that a

statement made by the prosecution in opening argument

-7-
-7-

violated his Fifth Amendment rights and that there were

evidentiary errors.

We treat each defendant's claims separately.

II

Sullivan

Sufficiency of the Evidence

In assessing a challenge to the sufficiency of the

evidence, we "review the record to determine whether the

evidence and reasonable inferences therefrom, taken as a

whole and in the light most favorable to the prosecution,

would allow a rational jury to determine beyond a reasonable

doubt that the defendants were guilty as charged." United

States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993),

cert. denied, 114 S. Ct. 1550 (1994).

Sullivan's assertion that there was not enough

evidence to show he carried or used the shotgun stresses two

points. First, Sullivan says, it is undisputed that the gun

belonged to Platt and that the night manager did not see who

carried the gun. He claims no other evidence linked him to

the gun. Second, he says that the weakness of the evidence

is revealed by the jury's acquitting him of being a felon in

possession of a firearm and of possessing an unregistered

weapon.

As to the latter, "'[v]erdict inconsistency does

not indicate that the government necessarily failed to prove

-8-
-8-

an essential element of its case beyond a reasonable doubt.'"

United States v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996)

(quoting United States v. Lopez, 944 F.2d 33, 41 (1st Cir.

1991)); see also United States v. Powell, 469 U.S. 57 (1984).

An inconsistent verdict does not require vacating a criminal

conviction as long as the appellate court is satisfied that

there was sufficient evidence to sustain the counts of

conviction. See Calderon, 77 F.3d at 10.

A jury could well have found that Sullivan actually

carried or used the gun himself or, at the least, knowingly

aided or abetted the carrying or use of the gun. It was

clear that at least one of the robbers carried the sawed-off

shotgun. The night manager testified that the robber who

accosted him brandished a shotgun. That robber "used" the

firearm. See Bailey v. United States, 116 S. Ct. 501, 508

(1995). A reasonable jury could have found that Sullivan was

that robber. Braley testified that after the robbery, in the

car, Sullivan put a pretend gun to Braley's head, apparently

imitating what he had done to the night manager. And, there

was testimony that Sullivan, in advance of the robbery, while

at Platt's home, picked up the gun and commented that it

would be good to use in a robbery. The evidence showed that

the two robbers walked across the field to the Inn. It is

reasonable to infer that the gun was brought to the Inn by

one or both and that the two robbers were each aware of the

-9-
-9-

shotgun and its intended use. A sawed-off shotgun is hardly

inconspicuous.1 The gun was brought back from the robbery

and put in the bag later abandoned by the four men in the

car. In the bag were the masks and camouflage garments also

used in the robbery. The evidence was sufficient to show

that Sullivan knew the shotgun would be used or carried

during the robbery and that he took some action intending to

cause the gun to be used or carried. See United States v.

Luciano-Mosquera, 63 F.3d 1142, 1150 (1st Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 26,

1996) (No. 95-1775); see also United States v. Price, 76 F.3d

526, 529-30 (3d Cir. 1996) (The "[accomplice without the gun]

probably knew in advance, and most certainly knew at the

time, what [the one with the gun] was doing."); United States

v. DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994) (one can be

held liable under aiding and abetting theory if he knew that

weapons would be used during the robbery), cert. denied, 115

S. Ct. 947 (1995). The jury could have found actual

knowledge and thus could easily have found that Sullivan knew

1. United States v. Spinney, 65 F.3d 231, 238-39 (1st Cir.

1995), which vacated the firearms conviction of an
accomplice, is, on its facts, inapposite. The firearm in
Spinney was a handgun that was not visible when the robber

entered the bank and the accomplice charged with aiding and
abetting remained outside of the bank. Moreover, in Spinney,

the use of the gun was not contemplated at the planning
stages, while here the jury could infer that it was.

-10-
-10-

to a "practical certainty" that the gun would be used. See

United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995).

Reasonable Doubt Instruction

Although he did not object to the reasonable doubt

instruction at trial, Sullivan attempts to attack the

instruction on appeal. As a result, he must meet the

strictures of plain error review. See Fed. R. Crim. P.

52(b); Luciano-Mosquera, 63 F.3d at 1156. In this instance

the standard of review does not alter the outcome because

there was no error in the instruction.

The judge instructed the jury as follows:

Now, as I have indicated to you, the
government has the burden of proving the
defendants guilty beyond a reasonable
doubt. Some of you may have served as
jurors in civil cases and when you were
told that it is only necessary to prove
that a fact is more likely true than not
true, in a civil case, that's the burden.
In criminal cases, the government's proof
is subject to a higher standard. It must
be beyond a reasonable doubt.
Now, there's been several
suggestions made to you during the course
of argument with regard to reasonable
doubt. And I point out to you that the
lawyers have the right, indeed the
responsibility, to point out to you those
facts or that evidence or those
interpretations of legal principles that
is more persuasive to their side of the
case. I instruct you that, if what I am
telling you about the law differs in any
way with what the lawyers have told you
about the law, I'm instructing you to
follow the law as I give it to you and
not as the lawyers suggest[] it may be if
there is a difference.

-11-
-11-

"Reasonable doubt" has now been
defined for you in several different ways
by counsel, and I instruct you that
reasonable doubt defines itself -- a
doubt that is reasonable. It has a plain
meaning, and you as jurors can consider
the plain meaning of reasonable doubt
with what the words say.
The only caveat that you must be
clear about as it relates to reasonable
doubt is that the government must prove
the guilt of each of the defendants for
the crimes involved beyond a reasonable
doubt as you interpret that term.

The judge thus left the fine tuning of the meaning of

"reasonable doubt" to the jurors, as is appropriate under our

precedent. See United States v. Cassiere, 4 F.3d 1006, 1024

(1st Cir. 1993).

Sullivan says that by referring to the definitions

given by counsel, the judge incorporated erroneous

definitions. The argument suffers from three flaws. First,

that is not a fair reading of the instruction, which told the

jurors what the judge's instructions were. Second, the

reference to counsel's definitions was followed immediately

by a statement that the judge's instructions on the law were

to be followed, and, if there were differences, not the

lawyers'. Third, to the extent that Sullivan's argument

rests on the premise that his own counsel gave an erroneous

definition of reasonable doubt, we will not entertain such an

argument. Cf. United States v. Munson, 819 F.2d 337, 342

(1st Cir. 1987) (no plain error in admitting certain

-12-
-12-

testimony when, among other problems, the testimony was

elicited by defense counsel on cross-examination).

Ineffective Assistance and Due Process Claims

Sullivan combines three arguments, tied together by

the common theme that his counsel at trial was ineffective.

For several reasons, ineffective assistance claims are not

usually heard on direct appeal. See United States v. Diaz-

Martinez, 71 F.3d 946, 953 (1st Cir. 1995); United States v.

Collins, 60 F.3d 4, 7 n.1 (1st Cir. 1995). There is no

reason here to depart from that rule.

To the extent he makes claims independent of the

ineffective assistance of counsel claim, they fail on their

own. Sullivan complains that, despite Platt's objection

which resulted in excluding the evidence, the evidence should

have been admitted that Platt and Braley committed a robbery

of the Econolodge the week before the robbery of the Inn.

Sullivan urges that the evidence would have been useful to

impeach Braley. Failing that, he says, severance was

warranted.

His initial hurdle is that he never sought to

cross-examine Braley about the Econolodge matter, and he

objected to the government's request to present such

evidence. Moreover, he never asked for a severance. At

best, review of his contentions is for plain error. In a

strange twist, the parties now reverse the positions they

-13-
-13-

held in the trial court with the government saying the

evidence was cumulative and Sullivan saying it should have

been admitted. Switching of position aside, this was a

matter of discretion for the trial judge and the decision

hardly requires reversal as plain error. See United States

v. Innamorati, 996 F.2d 456, 478 (1st Cir.), cert. denied,

114 S. Ct. 409 (1993). The same is true for the alleged

error in failing to sever the trials. Cf. United States v.

Edgar, No. 95-1190, slip op. at 8 (1st Cir. Apr. 19, 1996)

(failure to sever reviewed for abuse of discretion); United

States v. Nason, 9 F.3d 155, 158 (1st Cir. 1993), cert.

denied, 114 S. Ct. 1331 (1994) (same). There was strong

evidence of guilt in this case. Sullivan's convictions do

not rise to a "miscarriage of justice." See Edgar, No. 95-

1190, slip op. at 27 n.16.

Sullivan's second argument of trial error is also

raised by Platt. Through a series of questions, reproduced

in the margin,2 the prosecutor asked Sullivan whether

2. Q: So, I take it you would deny that you ever stated
to Vaughn Stevenson that you wished you didn't have
so many people involved in the robbery?
A: You take it I deny that?
Q: Yes.
A: I certainly do, yes.
Q: I take it that, when Vaughn testified to that, you
would say he was lying?
A: I'd say --
[Defense counsel]: Objection, your Honor.
. . . .
The Court: Objection's overruled. He can answer. It's
cross-

-14-
-14-

another witness, Vaughn Stevenson, had lied when Stevenson

said that Sullivan complained that he wished he didn't have

so many people involved in the robbery. This court stated in

United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991),

that this type of questioning was improper. Other courts

have said the same. See United States v. Boyd, 54 F.3d 868,

871 (D.C. Cir. 1995); United States v. Scanio, 900 F.2d 485,

492-93 (2d Cir. 1990), overruled on other grounds, Ratzlaf v.

United States, 510 U.S. 135 (1994). If there was any

ambiguity left after Akitoye, we state the rule now

emphatically: counsel should not ask one witness to comment

on the veracity of the testimony of another witness. As was

explained in Akitoye:

It is not the place of one witness to
draw conclusions about, or cast
aspersions upon another witness'
veracity. The "was-the-witness-lying"
question framed by the prosecutor in this
case was of that stripe. It should never
have been posed . . . .

examination.
A: Could I have the question again?
Q: Vaughn Stevenson testified that you told him, while
you were riding in his car shortly after the
robbery, that you told him that you wished you
hadn't had so many people involved in the robbery.
A: Uh-huh. And you want my opinion as to whether he
lied?
Q: And you're saying -- I take it you would say that
that was a lie, that you never said anything like
that.
A: You take that correctly, yes.

-15-
-15-

923 F.2d at 224 (citations omitted). We expect that the

office of the United States Attorney3 and other counsel will

abide by the rule.

The prosecution next misreads a line of cases

primarily from the Second Circuit and suggests that this non-

comment rule applies differently depending on whether the

other witness is a police officer or a lay witness. Compare

Boyd, 54 F.3d at 871 ("It is . . . error for a prosecutor to

induce a witness to testify that another witness, and in

particular a government agent, has lied on the stand.") and

United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987)

("Prosecutorial cross-examination which compels a defendant

to state that law enforcement officers lied in their

testimony is improper.") with United States v. Gaind, 31 F.3d

73, 77 (2d Cir. 1994) ("[T]he opposing witnesses in this case

were former [employees of defendant's business], not

government agents.") and Scanio, 900 F.2d at 493 ("While the

rule barring this type of cross-examination is not limited to

situations where the defendant is asked to comment on the

testimony of government agents, . . . we have shown special

concern with prosecutors utilizing what some persons perceive

as the heightened credibility of government agents . . . ."

3. Appellate counsel for the United States assured the court
at oral argument that attorneys in the Office of the United
States Attorney in Maine would promptly be instructed that
such questions are improper.

-16-
-16-

(internal citations omitted)). The rule only applies, the

prosecution says, when the other witness is a police witness,

not a lay witness. We make no such distinction, nor does the

Second Circuit.4 That erroneous reading misunderstands the

purpose of the rule. The rule reserves to the jury questions

of credibility and thus makes it improper to induce a witness

to say another witness lied on the stand. See Boyd, 54 F.3d

at 871.

That this rule was violated by the prosecution is

not the end of the analysis. The question is whether the

violation of the rule was harmless. In context, it certainly

was. While evidence of guilt is only one factor to be

considered, such evidence was very strong. See generally

Harry T. Edwards, To Err Is Human, But Not Always Harmless:

When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167

(1995). Two witnesses testified that Platt and Sullivan

committed the robbery and four witnesses tied Platt to the

shotgun. Moreover, the error was on a minor point: whether

Sullivan in his testimony would say another witness was lying

4. The distinction the Second Circuit draws is in evaluating
whether the error is harmless once the rule is violated.
Whether a witness is a government agent may be relevant in
determining whether there is prejudice or a miscarriage of
justice. See Gaind, 31 F.3d at 77 (in reviewing for

"miscarriage of justice," court believed that questions did
not alter the outcome of the trial); Scanio, 900 F.2d at 493

("[T]he government's attempt to compel [defendant] to comment
on [witness's] veracity was improper; however, we believe any
error was harmless.").

-17-
-17-

when the witness said Sullivan had complained about too many

people being involved in the robbery. The other witness

testified to Sullivan's complaint; Sullivan denied making it.

The damage to Sullivan's defense came from Stevenson's direct

testimony. That there was a contradiction between that

testimony and Sullivan's was obvious. Pointing out the

obvious most likely scored the government, at most,

rhetorical points. We cannot say that these few largely

rhetorical questions from the prosecutor affected at all the

outcome of the trial. Cf. United States v. Wihbey, 75 F.3d

761, 771 (1st Cir. 1996) (improper conduct on part of

prosecutor not implicating a constitutional right does not

require reversal unless it affected the outcome of the

trial).

Sullivan also argues that some of the comments made

by the prosecution in its closing argument were improper

vouching for the credibility of certain witnesses. The

prosecutor argued:

The government would suggest that,
again, Tim Boudreau, if you assess his
believability on the witness stand, he
came off pretty believable. But you have
to make that judgment, ladies and
gentlemen.
. . . The government suggests to
you [Cray] couldn't have lied about
anything up on the witness stand. He
couldn't -- if he was lying, he couldn't
even remember his own name.

And on rebuttal, the prosecutor argued:

-18-
-18-

The government suggests . . . that they
were up there telling the truth.
. . . .
. . . [Braley] told you the
truth. . . .
. . . .
. . . The government suggests that
. . . Braley, . . . Stevenson, and . . .
Boudreau . . . are telling the truth in
this case.

As there was no objection, we review for plain error. See

United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).

While some of the statements may have been an

appropriate response to the defendants' attack on the

government witnesses' credibility, see id., others may have

crossed the line into improper vouching. See Wihbey, 75 F.3d

at 771-73 (comment that "what they have done is testified

. . . truthfully about what they knew" was improper

vouching); United States v. Manning, 23 F.3d 570, 572 (1st

Cir. 1994) (improper witness vouching for prosecutor to

argue: "If [police witness] 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. . . . They're bound by their oath and limits of

honesty."). Nevertheless, no miscarriage of justice resulted

and the comments did not impact the fairness, integrity or

public reputation of the judicial proceedings and so should

not be noticed as plain error. See Collins, 60 F.3d at 7.

-19-
-19-

III

Platt

Prosecutor's Opening Statements

Platt argues that the prosecutor's statement in

opening that the jury would "meet" the two defendants was an

improper comment on whether the defendants would testify.

Sullivan objected to the comment and at the end of the

opening, Platt moved for a mistrial. The district court

denied the motion, but offered to give a cautionary

instruction. Apparently for strategic reasons, the

defendants rejected the offer.

Whether the prosecutor's argument violated the

Fifth Amendment privilege against self-incrimination is

reviewed de novo. United States v. Hardy, 37 F.3d 753, 756

(1st Cir. 1994). We review the denial of the motion for

mistrial for abuse of discretion. See Wihbey, 75 F.3d at

773. There was no violation of the Fifth Amendment here.

"A prosecutor's comment is improper where, under

the circumstances of the case, the language used was

manifestly intended or was of such character that the jury

would naturally and necessarily take it to be a comment on

the failure of the accused to testify." Hardy, 37 F.3d at

757 (internal quotations omitted). Sullivan's counsel agreed

that the choice of words was not deliberate: the prosecutor

meant to say that the defendants would be introduced to the

-20-
-20-

jury. And in fact, the defendants' lawyers did introduce the

defendants to the jury after the prosecutor made the

allegedly offending remark. In context, the prosecutor's

word choice did not "naturally and necessarily" comment on

the defendants' privilege against self-incrimination. Cf.

Hardy, 37 F.3d at 757-58 (holding that prosecutor's statement

that defendants, who were sitting in the courtroom but did

not testify, were "still running and hiding today" violated

the Fifth Amendment (emphasis removed)). Thus, there was no

prosecutorial misconduct that would warrant considering

mistrial.

Sufficiency of the Evidence

Platt also makes a claim that the evidence was

insufficient to support his conviction. Platt argues that

the evidence implicating him as one of the two robbers came

principally from Braley and Boudreau. Those two, Platt

argues, should not have been believed because they were

cooperating witnesses who gave inconsistent versions of the

events that transpired on July 28, 1994. However,

"'[c]redibility determinations are uniquely within the jury's

province, and we defer to the jury's verdict if the evidence

can support varying inferences.'" United States v. Calderon,

77 F.3d 6, 10 (1st Cir. 1996) (quoting Cruz-Kuilan, 75 F.3d

at 62). As the recital of the facts shows, there was ample

evidence to convict Platt on all counts.

-21-
-21-

Other Evidentiary Issues

Platt argues that the district court erred in

excluding the prior misdemeanor and juvenile convictions of

certain government witnesses and that the district court

abused its discretion by allowing cross-examination of

Sullivan on a prior robbery conviction. We have considered

Platt's arguments and find no abuse of discretion.5

Finally, Platt argues that evidence that Boudreau

had no prior criminal convictions should not have been

admitted. Platt argues that the evidence was admitted in

violation of Fed. R. Evid. 608 to show Boudreau's good

character. Cf. Government of Virgin Islands v. Grant, 775

F.2d 508, 510-12 (3d Cir. 1985) (such evidence inadmissible

under Rules 404 and 405 to prove character of accused). The

record shows that it was admitted to further develop

Boudreau's background and it was thus within the discretion

of the district court. Cf. United States v. Blackwell, 853

5. Platt seeks a stricter standard of review for the
district court's exclusion of one witness's misdemeanor
conviction for theft by arguing that it "involved dishonesty"
and thus should have been admitted under Fed. R. Evid.
609(a). See United States v. Tracy, 36 F.3d 187, 192 (1st

Cir. 1994) (district court does not have discretion to
exclude prior convictions involving dishonesty for
impeachment purposes), cert. denied, 115 S. Ct. (1995).

Theft, on particular facts, could conceivably be a crime of
dishonesty, if it involves some element of deceit,
untruthfulness, or falsification. See id.; United States v.

Mejia-Alarcon, 995 F.2d 982, 989 n.7 (10th Cir.), cert.

denied, 114 S. Ct. 334 (1993). But Platt points to nothing

in the record to support his assertion that the theft here
was a crime of dishonesty.

-22-
-22-

F.2d 86, 88 (2d Cir. 1988) (error to strike background

evidence that defendant had no prior arrests); Grant, 775

F.2d at 513 (trial court has wide discretion as to admission

of background evidence). There was no abuse of discretion

here.

Affirmed.

-23-
-23-