United States v. Procopio

July 24, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1549

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCIS J. PROCOPIO,

Defendant, Appellant.

No. 95-1550

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT A. LATTANZIO,

Defendant, Appellant.

No. 95-1551

UNITED STATES OF AMERICA,

Appellee,

v.

BERNARD KILEY,

Defendant, Appellant.

ERRATA SHEET
ERRATA SHEET

The opinion of this court issued on July 9, 1996, is amended as

follows:

On page 29, paragraph 2, line 8, insert footnote 3 after the

words " . . . a fair trial." to read:

"In light of our criticism of the rebuttal argument, we

think it fair to note that the assistant United States

Attorney who argued this case on appeal was not the

prosecutor who presented the rebuttal argument at trial."

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 95-1549
UNITED STATES OF AMERICA,

Appellee,
v.

FRANCIS J. PROCOPIO,
Defendant, Appellant.

No. 95-1550

UNITED STATES OF AMERICA,
Appellee,

v.
VINCENT A. LATTANZIO,

Defendant, Appellant.

No. 95-1551
UNITED STATES OF AMERICA,

Appellee,
v.

BERNARD KILEY,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Selya, Cyr and Boudin,
Circuit Judges.

Richard J. Shea, by Appointment of the Court, for appellant

Francis J. Procopio.
Kevin G. Murphy, by Appointment of the Court, with whom Dusel,

Murphy, Fennell, Liquori & Powers was on brief for appellant Vincent

A. Lattanzio.
Stewart T. Graham, Jr., by Appointment of the Court, with whom

Graham & Graham was on brief for appellant Bernard Kiley.

C. Jeffrey Kinder, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the United

States.

July 9, 1996

BOUDIN, Circuit Judge. On April 9, 1991, three armed,

masked men stole $1.2 million in cash about to be loaded into

an armored car belonging to Berkshire Armored Car Services,

Inc. ("Berkshire"). The crime occurred in Pittsfield,

Massachusetts. On June 10, 1993, the government indicted

Bernard J. Kiley, Vincent A. Lattanzio, Donald J. Abbott,

Francis J. Procopio and Charles R. Gattuso. The government

believed that the first three men had committed the robbery

and that the other two had aided the venture.

The indictment charged all five men with conspiracy to

interfere with, and interference with, commerce by means of

robbery, 18 U.S.C. 1951, and with robbery of bank funds, 18

U.S.C. 2113(a). Kiley and Procopio were also charged with

money laundering, 18 U.S.C. 1956(a)(1)(B)(i), (ii). A

superseding indictment was handed down on September 30, 1993,

adding firearms counts against Lattanzio and Kiley, 18 U.S.C.

922(g)(1) & 924(c)(1), (2), as well as a forfeiture count

against Kiley, 18 U.S.C. 982.

In due course, Gattuso pled guilty to conspiracy and

entered into a cooperation agreement with the government.

Abbott was murdered prior to trial. The district court

severed the firearms charges from the other counts; the three

remaining defendants (Kiley, Lattanzio and Procopio) were

convicted on all other counts after a 14-day trial beginning

on October 6, 1994. A second jury convicted Kiley and

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Lattanzio on the firearm counts on December 14, 1994. All

three defendants appealed, praying for new trials on all

counts.

In briefs and oral arguments by able counsel, Kiley,

Lattanzio and Procopio raise three major challenges to their

convictions. First, claiming that various government

searches violated the Fourth Amendment, they contend that the

district court erred in failing to suppress evidence.

Second, defendants argue that the court erred in admitting

evidence of possible preparations for a later robbery.

Finally, defendants urge that remarks by one of the

prosecutors constituted misconduct warranting a new trial.

We affirm.

I. BACKGROUND

Because there is no challenge to the adequacy of the

evidence, we do not describe what the jury would have been

entitled to find, viewing the evidence in the light most

favorable to the government. Instead, we offer a neutral

description of the evidence at trial to illuminate the

defendants' claims of error and to provide a background

against which to judge defendants' claims of prejudice.

Facts relevant to the suppression motions are set forth

separately in the discussion of those issues.

The government's case began with the testimony of the

two Berkshire guards, Allan Mongeon and James Cota. They

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testified that three men, armed and masked, accosted them

while they were loading bags of money into a Berkshire

armored truck in Pittsfield on April 9, 1991. The door of

the loading bay was open, in violation of regular procedures,

because the truck inside the bay was loaded with pallets, and

a second truck, which the guards decided to use, was parked

directly outside the bay.

Although the guards offered little physical description

of the robbers, they said that one of the three men had been

older and shorter than the other two and that he had a salt-

and-pepper mustache; a false mustache matching that

description was later recovered from Kiley's home. Mongeon

was able to get a look at the right front portion of the

robbers' get-away car; he described it at the time as a tan

sedan of late-70s vintage, probably a Plymouth Volare; he

later identified as the car he had seen a tan-and-brown 1979

Buick Regal, which had belonged to Procopio at the time of

the robbery.

In addition, Mongeon testified that one of the robbers

had called out "Chuck, what are you doing." None of the

individuals claimed by the government to have carried out the

robbery--Kiley, Lattanzio, and Abbott--was named Chuck, but

Gattuso was sometimes referred to by that name. However, the

government established that Gattuso was well known to Mongeon

(Gattuso having been fired by Berkshire two weeks before the

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robbery); the point was to suggest that Mongeon would have

recognized Gattuso's voice had he been present.

Gattuso then testified. He said that Kiley had

approached him early in March 1991, at the suggestion of

Gattuso's brother Dino, for help in planning the Berkshire

robbery. Gattuso later decided to join, bringing his close

friend Procopio to a second meeting. At a final meeting,

Gattuso gave Kiley details of Berkshire's operations;

Procopio agreed to provide and dispose of the getaway

vehicles. Kiley told Gattuso that he would carry out the

robbery along with two unnamed confederates. Procopio later

told Gattuso that one of the participants in the robbery was

named "Vinnie."

Charles Parise, an unindicted co-conspirator and friend

of Gattuso's, testified that Procopio brought a car--the same

Buick Regal identified by Mongeon as the get-away car--to

Parise's garage at his home in Pittsfield on the night of the

robbery. Parise said that he was forced to hide the car--

Procopio threatened him and his family--and to change its

tires, and was later paid $8,000 for his trouble. This money

he returned to the government. The defense cast doubt on

Parise's credibility by pointing to statements by Parise's

girlfriend suggesting that he had received more than $8,000.

The next several days of the trial were devoted to the

government's painstaking presentation of evidence of cash

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transactions, totaling nearly $330,000, by the defendants and

their families in the months immediately following the

robbery. For example, Kiley and Lattanzio travelled together

to Jamaica, also treating several friends to the trip. The

defendants' lavish spending occurred in spite of the fact

that Kiley had no visible means of support, Procopio had been

insolvent prior to the robbery, and Lattanzio had never

declared over $15,000 of income in any one year.

In addition, the government presented evidence of guns,

a state police uniform, handcuffs, and a radio scanner that

were seized from Kiley's apartment at 81 Intervale Street at

the time of his arrest in June 1993; there was evidence that

Lattanzio, whose father owned the building, was also spending

time in the apartment, and that two of the guns seized there

belonged to Lattanzio. Finally, the government played tapes

of telephone conversations among Kiley and Lattanzio (who

were in custody) and Procopio (out on bail) in which they

discussed getting "back into business" and holding "another

party" to which no "children" would be invited.

The defendants called a total of five witnesses, who

testified to alternative sources for the funds that the

defendants spent following the robbery. The defense claimed

Kiley had funds from prior crimes; that Procopio had money

from legitimate and illegitimate businesses that he had been

hiding from the IRS and his ex-wife; and that John Lattanzio,

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Sr., Vincent's father and the depositor of much of the cash

in question, had gambling winnings, again not reported to the

IRS. In addition, the defense tried to establish that Kiley

had been in Florida at the time Gattuso alleged some of their

meetings had taken place.

II. SEARCH AND SEIZURE

Defendants challenge the district court's denial of

several suppression motions before trial. Procopio objects

to a search of his residence (in 1992); Kiley to searches of

his residence (in 1992 and 1993) and to searches of his

papers, recovered from a stolen safe (in 1991) and a

briefcase seized after a traffic stop (in 1992). Lattanzio

joins in the challenge to the admission of evidence seized

from Kiley's Intervale Street apartment in 1993.

June 1992 search of Kiley's and Procopio's properties.

In June 1992, Agent Howe of the IRS prepared an affidavit in

support of a warrant to search four Pittsfield properties:

*37 Taubert Ave. (Kiley's residence)

*124 Crane Ave (Gattuso's residence)

*56 South Onota St. (Procopio's residence)

*483 West Housatonic St. (Procopio's garage)

Howe's affidavit set out tips from four confidential

informants. A first confidential informant (CI-1) had said

that Kiley, Charles and Dino Gattuso, and Procopio had

participated in the robbery; CI-1 had the information from

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Armand Bigelow, who heard it from his friend Dino Gattuso.

The second tip, from CI-2, was that Charles Gattuso had

talked about a $10,000 trip to California with his family,

and had said that he still had $80,000 in cash that he was

not "stupid enough to put in the bank." CI-3 stated that

Charles Gattuso had buried money in his back yard and

corroborated the information about the Gattuso family trip to

California. CI-4 said that he had overheard a conversation

in which Kiley's nephews said that Kiley was responsible for

the "armored car heist" and flashed a large amount of

currency to back up the boast.

The Howe affidavit also described a pattern of spending

by Kiley, Gattuso, and Procopio that was inconsistent with

their known legitimate income. Bank records showed that

Kiley had deposited over $42,000 in Florida banks within six

months of the robbery; Procopio had spent $36,000 on a house

in which Gattuso was residing and $12,000 on a new garage.

The affidavit said that Gattuso, a close friend of Procopio,

was a former Berkshire guard familiar with company

procedures. Agent Howe also stated that--based on past cases

involving drug dealers--individuals who have large amounts of

cash from illegal sources often have contraband, proceeds,

and records of their money-laundering efforts in their homes

and places of business.

Both Kiley and Procopio moved to suppress evidence from

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this search; the motion was denied in a 45-page order on May

16, 1994. On appeal, Kiley and Procopio argue that the

district court's determination that Agent Howe's affidavit

provided probable cause to search was flawed; Kiley also

insists that the information was stale.

Under Illinois v. Gates, 462 U.S. 213 (1983), probable

cause to issue a search warrant exists when "given all the

circumstances set forth in the affidavit . . . there is a

fair probability that contraband or evidence of a crime will

be found in a particular place." Id. at 238. In reviewing a

magistrate's decision to issue a warrant, the courts grant

"great deference" to the magistrate's evaluation of the

supporting affidavit, United States v. Jewell, 60 F.3d 20, 22

(1st Cir. 1993), reversing only if there is no "`substantial

basis for . . . conclud[ing]' that probable cause existed."

Gates, 462 U.S. at 238-39.

Kiley and Procopio say that the first informant's tip

was multi-level hearsay and that no evidence was provided to

show the veracity of the unidentified informant. But the tip

did not stand alone. There was information from three other

informants which tended to corroborate CI-1's implication

that Gattuso and Kiley had been involved in the robbery.

Moreover, Kiley, Gattuso, and Procopio each began spending

large sums of cash in the months following the robbery;

Gattuso was known to be familiar with Berkshire's operating

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procedures; Procopio was a close friend of Gattuso's and,

shortly after the robbery, purchased a house in which Gattuso

was residing.

As to Kiley, two confidential informants identified him

as a participant in the robbery, and the government had

evidence of large cash deposits which appeared to have been

structured to avoid triggering reporting requirements.

Procopio's claim is a somewhat closer call, but the fact that

Procopio had been spending large amounts of cash--including

payments on a house in which Gattuso was residing--suggested

that Procopio was involved at least in laundering the

proceeds of a crime in which Gattuso had participated.

Kiley makes two additional arguments. First, he says

that Agent Howe's experience with drug dealers does not

qualify him to speak about the habits of bank robbers. But

what ties the two situations together is the criminal's need

to dispose and keep track of large cash proceeds. Second,

Kiley argues that the information supporting the warrant was

stale because the crime had taken place 14 months before.

Yet, the fact that the robbery had taken place many months in

the past did not eliminate the likelihood that the paper

trail of financial records could be found in Kiley's

residence.

Procopio argues that the district court erred in denying

him a hearing under Franks v. Delaware, 438 U.S. 154 (1978).

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Franks provides for such a hearing where a defendant makes

"allegations of deliberate falsehood or of reckless disregard

for the truth, . . . accompanied by an offer of proof." Id.

at 171. Procopio claimed in the district court that such a

doubt about the agent's good faith exists here because Dino

Gattuso, the alleged source of CI-1's information, later told

the government that he did not recall discussing that

information with anyone else.

The district court properly refused to grant a Franks

hearing. Dino Gattuso's statement falls short of a specific

denial that he ever discussed the matter with Bigelow; nor is

there any indication that Agent Howe was aware of Dino's

statement at the time Howe swore out the affidavit. The

corroborating information, including the evidence of

Procopio's unexplained expenditures, remains unaffected.

Nothing appears to raise a reasonable suspicion of deliberate

misconduct or recklessness on the part of the investigating

agent.

Kiley's papers from his brother's safe. On November 29,

1991, a safe was stolen from Kiley's brother Donald; around

that time, an abandoned safe was found in a park in

Pittsfield, with papers inside the open safe and scattered on

the ground nearby. The papers were taken to the police

station and were laid out to dry and to be fingerprinted. A

police detective noticed that some of the documents were in

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Bernard Kiley's name and called an FBI agent he knew to be

investigating Kiley and the Berkshire robbery. The

investigating agents reviewed the documents and used them to

obtain Kiley's bank records by grand jury subpoena; these

records supported the search of 37 Taubert Avenue.

Kiley argues that the police actions were improper; he

says that once the police knew whose safe it was and that the

documents came from inside it, they had no need to conduct a

review of the documents. In our view, any reasonable

expectation of privacy Kiley enjoyed in documents secured in

his brother's safe was destroyed by private action for which

the government was not responsible. United States v.

Jacobsen, 466 U.S. 109, 113 (1984). And once the papers were

left openly available in a public place, their examination by

government agents was not "unreasonable" under the Fourth

Amendment. Cf. id. at 115-18.

We thus join the Eleventh Circuit which held there was

no Fourth Amendment violation in very similar circumstances

in United States v. O'Bryant, 775 F.2d 1528, 1534 (11th Cir.

1985). See also United States v. Aguirre, 839 F.2d 854, 857

(1st Cir. 1988). Because of the way we resolve this

question, we need not reach the district court's holding that

Kiley lacked standing to challenge the search of his

brother's safe and, in the alternative, that the police

search did not go beyond a proper inventory search.

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Search of Kiley's briefcase following traffic stop. In

November 1992, a Lenox police office tried to pull Kiley over

for driving with a broken headlight. Kiley jumped out of his

car, ran into the woods, and was eventually caught by the

police. The car was impounded and the contents inventoried

in keeping with department policy. The police found a

briefcase in the trunk; they opened the briefcase and found

marijuana and incriminating documents detailing over $100,000

in expenditures. The police informed a federal agent who

asked that the car be held while he obtained a warrant.

The district court held that the police department's

search of the briefcase--which Kiley said was locked--

exceeded the bounds of its own policy covering inventory

searches, and therefore did not come within the applicable

exception to the Fourth Amendment. Florida v. Wells, 495

U.S. 1 (1990); South Dakota v. Opperman, 428 U.S. 364

(1976). However, the court went on to hold that the

"inevitable discovery" doctrine of Nix v. Williams, 467 U.S.

at 444, saved the search. It reasoned that by November 1992,

Kiley was already implicated in the Berkshire robbery

investigation so that federal agents, being told of the

briefcase, would surely have sought a warrant to inspect its

contents.

The burden is on the government to show by a

preponderance of the evidence that the evidence would

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inevitably have been discovered by lawful means. Nix, 467

U.S. 431, 444 (1984); United States v. Infante-Ruiz, 13 F.3d

498, 503 (1st Cir. 1994). We review the district court's

fact finding only for clear error, United States v.

McLaughlin, 957 F.2d 12, 16 (1st Cir. 1992), but the

underlying facts are not in dispute. We will assume

arguendo, favorably to the defendants, that the ultimate

determination (whether discovery here was inevitable) amounts

to a question of law application that is reviewable de novo.

Cf. Ornelas v. United States, 116 S. Ct. 1657 (1996).

Kiley points out that the federal agents only obtained a

warrant after being informed that the briefcase contained

potentially incriminating bank records. He then argues that

it is speculation to assume that, absent those records, the

police would have called federal agents and that federal

agents would have sought a warrant. And in fact, the local

police called the federal authorities only after conducting

what we will assume, for purposes of this argument, may have

been an illegal search of the briefcase.

Still, the local police knew that Kiley was the object

of a federal robbery investigation. And Kiley made a blatant

attempt to flee from the police when stopped for a minor

traffic violation, leaving behind an allegedly locked

briefcase. There is thus little reason to doubt that the

local police would have contacted federal agents, even

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without the information gleaned during the search of the

briefcase itself. It is even more certain that federal

agents, having ample time to do so, would have then sought a

warrant to search the briefcase.

In the alternative, Kiley questions whether without the

documents the government would have had probable cause to

search the briefcase. The evidence that justified the search

of Kiley's residence would have established probable cause to

believe that Kiley was involved in the crimes later charged;

and Kiley's sudden flight and the locked briefcase would have

given a magistrate reason to think that Kiley might well be

carrying material pertaining to the crimes, which included

money laundering.

Search of Kiley's residence at 81 Intervale. Both Kiley

and Lattanzio challenge the propriety of the search of

Kiley's new residence at 81 Intervale Street in Brockton,

Massachusetts. In June 1993, FBI and IRS agents obtained

arrest warrants for Kiley and Lattanzio and a search warrant

for 79 Intervale Road. Lattanzio was arrested outside the

building (containing both 79 and 81 Intervale). The agents

next entered 79 Intervale and were told by a tenant that a

man resided upstairs; the agents called Kiley's name from the

back stairs of the building and received a response from a

third-floor apartment marked 81 Intervale. As Kiley left the

building, he was arrested.

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IRS Agent Downes telephoned to another agent--Agent

Crocker--to ask her to prepare a warrant application for the

new address--81 Intervale. Her affidavit read in part:

On June 8, 1993, I talked by telephone with
Special Agent Gerard F. Downes who advised me that
he was at Bernard Kiley's address at 81 Intervale,
Brockton, MA., waiting to execute a search warrant
. . . . Special Agent Howe advised me that upon
arrival at the residence he discovered that the
correct address for Kiley's residence was 81
Intervale Road, Brockton, MA. rather than 79
Intervale Road as listed in the original
application and warrant.

An amended warrant was issued, and the ensuing search

revealed the cache of arms and other evidence later

introduced at trial. The district court held that the

warrant should not have issued to search 81 Intervale because

nothing in the affidavit established probable cause to

believe that Kiley lived there. In fact, the agent on the

scene knew that surveillance had shown Kiley lived in the

building, knew that his mail was delivered there, and knew

that Kiley had been in the apartment moments before; but none

of this information was included in the warrant application.

However, the district court held that the evidence was saved

by the "good faith" exception to the exclusionary rule.

United States v. Leon, 468 U.S. 897 (1984).

We agree with the district court that Leon applies, an

issue we consider de novo. United States v. Manning, 79 F.3d

212, 221 (1st Cir. 1996). Leon protects good faith police

reliance on a magistrate search warrant, even if the warrant

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later proves invalid, unless inter alia the underlying

affidavit is "so lacking in indicia of probable cause" as to

make reliance upon it "entirely unreasonable." Leon, 468

U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11

(1975)) (Powell, J., concurring in part). See also United

States v. Ricciardelli. 998 F.2d 8, 15 (1st Cir. 1993).

The focus in a warrant application is usually on whether

the suspect committed a crime and whether evidence of the

crime is to be found at his home or business. That hardly

makes the address unimportant: to invade the wrong location

is a serious matter. But so long as the affidavit itself

asserts a link between the suspect and the address, it is

easy to understand how both the officer applying for the

warrant and the magistrate might overlook a lack of detail on

a point often established by the telephone book or the name

on a mailbox.

In this instance, the second affidavit expressly recited

that agent Downes had advised that he was "at Bernard Kiley's

address at 81 Intervale . . . ." Thus, the affidavit

included the agent's assertion that the address to be

searched (81 Intervale) was that of the suspect (Kiley) as to

whom probable cause had been shown; the only omission was the

failure to explain how the agent--who had ample basis for the

contention--knew that "81 Intervale" was "Kiley's address."

Whether or not this is a defect in the application, it is

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hardly blatant, nor is there any suggestion (or basis for a

suggestion) of actual bad faith. Thus, we conclude that Leon

applies.

Cases like Nix and Leon may seem to some like

technicalities that undermine Fourth Amendment protections.

Others may view them as practical accommodations of tensions

bound to arise where highly relevant evidence is threatened

with exclusion in order to deter police misconduct. In all

events, it is our job to apply these doctrines, as they have

been developed by the Supreme Court, to the particular facts

of each case.

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III. RULE 404(b) EVIDENCE

Kiley and Lattanzio object to the admission of guns,

handcuffs, a state police uniform and badge, and a police

scanner seized at 81 Intervale.1 They have consistently

argued that the items are inadmissible because their only

tendency is to suggest that defendants are violent criminals

and the items are character-propensity evidence prohibited by

Fed. R. Evid 404. The government counters that the evidence

is relevant to indicate a criminal association between Kiley

and Lattanzio in 1991; the district court agreed, relying on

our decision in United States v. Fields, 871 F.2d 188 (1st

Cir.), cert. denied, 493 U.S. 955 (1989), and also declined

to exclude the evidence under Fed. R. Evid. 403.

Rule 404 provides that evidence of "other crimes,

wrongs or acts" is not admissible to prove "the character of

a person in order to show action in conformity therewith;"

however, such evidence is admissible if offered for "other

purposes." Id. See United States v. Moreno, 991 F.2d 943,

946 (1st Cir.), cert. denied, 114 S. Ct. 457 (1993). If

evidence "supports a chain of inference independent of any

1Procopio also attempts to raise this issue, arguing
that the admission of this evidence prejudiced his defense.
But "[o]bjections based on Rule 404(b) may be raised only by
the person whose `other crimes, wrongs, or acts' are
attempted to be revealed." United States v. David, 940 F.2d

722, 736 (1st Cir.), cert. denied, 502 U.S. 989 (1991).

Procopio asked for and was granted repeated instructions to
the effect that the 81 Intervale evidence did not relate to
him.

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tendency of the evidence to show bad character," Moreno, 991

F.2d at 946, it is said to have "special relevance" and not

barred by Rule 404.

Here, such special relevance is easy to articulate (the

strength and significance of the inference are a different

matter). Plainly, the seized materials, found in an

apartment used by both Kiley and Lattanzio, tended to suggest

that in 1993 the two men had a criminal association. This to

some extent suggested a criminal association in 1991, which

was helpful to the government's claim that the two men had

collaborated in the Berkshire robbery in 1991. Thus, the

inference goes somewhat beyond the mere implication that

either man was of bad character.

True, the seized items might have belonged only to one

of the two men. Or an association between them might have

been criminal in 1993 but innocent in 1991. But these

possibilities affect only the strength of the government's

inference. A later criminal association increases the

likelihood of an earlier one--which is all that "relevance"

requires, Fed. R. Evid. 401; United States v. Tutiven, 40

F.3d 1, 6 (1st Cir. 1994)--and numerous cases permit such

reasoning from a later event or condition to an earlier one.

E.g., United States v. Andiarena, 823 F.2d 673, 677 (1st Cir.

1987).

In all events, we agree with the district court that we

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crossed this bridge in Fields. There, three defendants were

charged with conspiracy and bank robbery. Three years after

the robberies, two of the defendants were caught in a stolen

car containing various "tools of the trade" for armed

robbers. The evidence was admitted at trial over an

objection based on Rule 404. This court upheld the district

court, holding that the evidence "shed light on the nature of

[the defendants'] association at the time of the crimes

charged." Fields, 871 F.2d at 198.

On appeal, defendants seek to distinguish Fields,

primarily on the ground that the permissible inference

pointing toward guilt in that case was somewhat stronger on

the facts. This may be so, although we there noted that the

similarity between the charged crime and the subsequent acts

was "most likely insufficient to show a "`signature.'" Id.

at 197. But it seems to us that, so long as some "special

relevance' is shown, the bar of Rule 404 is crossed and the

issue is then one of balancing probative value against

prejudice under Rule 403.

This Rule 403 judgment was undoubtedly a close one on

the present facts. The criminal association was itself

merely inferred (Lattanzio did not live permanently at the

apartment), and the need to reason backward from 1993 to 1991

further weakens the inference. And here, as is often the

case with Rule 404(b) evidence, the permissible inference

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(criminal association) overlapped with, and went only a small

step beyond, the forbidden one (criminal character). This in

turn increases the difficulty for the jury and the risk of

prejudice.

On the other hand, some would think that the evidence

confirmed a criminal association as of 1993, indeed, an

association probably designed to perpetrate robberies.

Arguably, the two year gap was less important than usual,

given an admitted association of some kind in 1991 (albeit in

the months after the robbery). The evidence was scarcely

redundant.2 And the presence of guns at the apartment,

while telling, is not such as to overwhelm the emotions of an

ordinary juror in the manner of gruesome testimony or

photographs.

In sum, the issue was at best a close one which a

reasonable judge might have decided either way. The district

court enjoys great latitude in making an on-the-spot

balancing judgment under Rule 403, Manning, 79 F.3d at 217,

and we cannot find any abuse of discretion here. This is

especially so in view of Fields where similar evidence was

2As the Advisory Committee Notes to Rule 403 point out,
"[i]n reaching a decision whether to exclude evidence on
grounds of unfair prejudice, . . . [t]he availability of
other means of proof may also be an appropriate factor." In
this instance, a prior association between Kiley and
Lattanzio was amply proved by other evidence (e.g., of their

trips) but nothing else directly indicated the criminal
character of the association.

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upheld by this court. The truly difficult problem for us is

not the admission of the evidence but the use made of it by

the prosecutor in closing, a subject to which we will shortly

return.

IV. PROSECUTORIAL MISCONDUCT

All these defendants object to various comments made by

the prosecutor in his rebuttal argument, and argue that the

trial judge erred in failing to grant a mistrial. Several of

the comments were the subject of timely objection and the

claims of error are fully preserved; the others are

reviewable for plain error. United States v. Wihbey, 75 F.3d

761 (1st Cir. 1996).

Comment on Failure to Testify. The first charge is that

the prosecutor impermissibly commented on the defendants'

failure to testify. Counsel for Kiley and Lattanzio argued

in their closing that the jury could find cause for doubt in

the government's failure to ask the Berkshire guards to

identify Kiley's and Lattanzio's voices from the prison

tapes. In its rebuttal, the government replied:

And why didn't the Government play tapes for the
guards and see if they recognized the defendants'
voices. You heard from two of the defense counsel
if we had, and if the guards identified the voices.
Is there anybody here that thinks that the
defendants would have come in the courtroom and
fessed-up, or would they have just created more
illusions for argument.

An objection was made, but the district judge saw no

impropriety.

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What the prosecutor was trying to say was that defense

counsel were making a commotion about a lack of evidence from

the guards but, if such testimony had been offered, counsel

would then have belittled it. The prosecutor's reference was

inartful and could be taken--especially out of context--as an

improper comment. But it was certainly not an intentional

comment on the failure to testify. And in context, it was at

most a glancing brush rather than a blow against the

privilege.

The district judge included in the closing instructions

the standard warning: that defendants have an absolute right

not to testify and that no inference should be drawn from a

failure to testify. If any juror mistook the prosecutor's

comment to suggest otherwise, that suggestion was squarely

corrected not long afterwards by the judge. We are

completely confident that the comment did not affect the

outcome, and although perhaps technically a violation, was

harmless beyond a reasonable doubt. Chapman v. California,

386 U.S. 18 (1967). Comment on propensity to violence.

All defendants complain on appeal about the following remarks

by the prosecutor:

These defendants, make no mistake about it, share a
violent and vicious criminality. The arsenal at
Intervale and Frank's explicitly saying they will
go into the criminal business again have no other
explanation. Our society doesn't need it. I
submit to you society has had enough of Frank
Procopio, Bernie Kiley, and Vinnie Lattanzio.

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This comment was improper for two reasons. First, the

"society doesn't need it" comment "served no purpose other

than to `inflame the passions and prejudices of the jury.'"

United States v. Machor, 879 F.2d 945, 956 (1st Cir. 1989),

cert. denied, 493 U.S. 1081 (1990) (quoting in part prior

precedent). Second, and more troubling, the prosecutor's

remarks encouraged the jury to conclude from the 81 Intervale

evidence that the defendants were "violent and vicious"

criminals. This inference--that the defendants were of bad

character--was precisely the inference that Rule 404(a)

forbids.

However, defense counsel failed to object at trial to

these remarks by the prosecutor. Reviewing courts are very

reluctant to reverse for unobjected-to errors that could have

been corrected or ameliorated by timely objection. Arrieta-

Agressot v. United States, 3 F.3d 525, 528 (1st Cir. 1993).

Consonantly, under the "plain error" test, the error has to

be obvious and affect "substantial rights," and the failure

to reverse the conviction must cause a miscarriage of

justice. United States v. Olano, 113 S. Ct. 1770, 1777-79

(1993).

We regard this set of comments as presenting a very

close call, at least as to Lattanzio. Against Kiley, the

direct evidence was strong; but Lattanzio was not directly

identified by anyone, and the government's case against him

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was based on adequate, but hardly overwhelming,

circumstantial evidence. If Lattanzio had objected at trial

and if (which we doubt in light of the final instructions)

the district court had ignored or overruled the objection, it

might be hard for the government to show the error was

harmless. United States v. Randazzo, 80 F.3d 623, 631 (1st

Cir. 1996).

But here, it is Lattanzio who must show that the

improper remarks likely infected the jury (affected

"substantial rights" in Olano's words) and mere possibilities

are not enough. The assault on the guards and the weaponry

found at Intervale were facts permissibly before the jury.

What was added was improper commentary; but this is not a

case in which the jury learned of inadmissible events,

something far more likely to infect fatally the jury's

reasoning.

Similarly, under Olano's miscarriage of justice

standard, we think the prosecutor more culpable here than in

the "fess up" comment; that was merely inadvertent and this

was seriously careless. But it is important to note that the

district court, in closing instructions the next day, did

give a pointed warning to the jury:

During closing arguments yesterday,
certain counsel made certain remarks that
were heated and inflammatory, perhaps
depending on how you look at them, and
certainly emotional.

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I ask you to totally disregard what
counsel may have said in a heated
fashion. Your job is to determine the
truth . . . .

The court also firmly reminded the jury that the Intervale

evidence was not to be used as propensity evidence.

These are the very curative instructions that would have

been given if a timely objection had been made. The fact

that the defense did not object also may suggest that, in the

conditions of the courtroom, the passage in question passed

by as mere rhetoric. In all events, we are not persuaded

under Olano that this misstep, taken in light of the curative

instructions, probably altered the result or produced a

fundamentally unfair trial.

Implication of threats. Defendants, during closing

arguments, attempted to cast doubt on Gattuso's reliability

by referring to the fact that the government had paid him and

reduced the charges against him. The government responded:

Mr. Graham objected, apparently a moral objection,
because the Government spent $10,000 on subsistence
expenses for Charlie Gattuso before he entered the
witness protection program, as part of that
program. I'm sure that Mr. Graham and the other
defendants would have preferred he not be here, and
he not testify, and I want to apologize on behalf
of the government for protecting his life.

Defendants argue that the comment unfairly implied that the

defendants would prefer to see Gattuso dead and in fact posed

a threat to him. They also suggest that the jury could have

had its doubts aroused by Abbott's absence, but in fact any

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hint that he had been murdered was scrupulously excluded from

the trial.

The jury already knew that Gattuso was in a witness

protection program, presumably for his protection, and

obviously the defendants would have preferred that Gattuso

not testify. The implication that the defendants posed a

threat to Gattuso's life is more troubling, but it was

indirect, utterly unsupported, and occurred during a

legitimate attempt to explain (in response to defense

impeachment) why the money had been spent. We do not think

that the criticized comment, although over the line of

propriety, affected the defendants' substantial rights.

Disparagement of counsel. The prosecutor told the jury

that defense arguments were "illusions . . . a smoke screen

aimed at creating that, an illusion to . . . deflect you from

the single thread of truth that . . . unifies all the

evidence in the case." Then the government stated, "This

isn't a game . . . the robbery wasn't a game, and I've got

news for the defense counsel, this trial isn't a game

either." Only Lattanzio objected to this statement at trial;

he asked for a curative instruction which was given. No

further objection was raised.

"The prosecutor is expected to refrain from impugning,

directly or by implication, the integrity or institutional

role of defense counsel." United States v. Bennett, 75 F.3d

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40, 46 (1st Cir. 1996), petition for cert. filed (June 5,

1996) (No. 95-9237). The prosecutor's remarks, although more

wind than rain, were arguably excessive disparagement. But a

corrective instruction was asked for and given, and it is

unrealistic to suggest that such empty cliches seriously

affected the jury's deliberations.

Defendants said at oral argument that the prosecution

had attempted in these appeals to defend its improper remarks

piecemeal, glossing over the cumulative impact. Cumulative

impact is a legitimate concern, cf. United States v. Manning,

23 F.3d 570, 575 (1st Cir. 1994), but the only remark that

raised serious risk of prejudice was the "vicious and violent

criminality" comment. Nor did the other comments form a

pattern that would tend to reinforce the improper inference

there encouraged. We are thus satisfied that the improper

arguments, even taken as a whole, do not merit reversal.

They do merit some criticism of the prosecution.

Contrary to the epigram, a fault is not worse than a crime;

but a pattern of faults does suggest a failure in

supervision. The government should not have to devote almost

20 pages of its brief to explaining away problems with its

arguments to the jury. It is happenstance that the

prosecution has done more damage to its own reputation than

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to the defendants' right to a fair trial.3

V. CONCLUSION

Defendants have raised some additional arguments in

their briefs. Among others, Procopio claims that he was

affected by the Intervale evidence and also that it was error

for the district court to deny his motion to sever. Kiley

and Lattanzio object to the admission of certain tape

recordings on hearsay grounds and under Bruton v. United

States, 391 U.S. 123 (1968). Lattanzio objects to the

admission of a photograph of cash in a clothes drier and also

argues that the district court erred by failing to instruct

the jury on the meaning of reasonable doubt.

We have carefully considered defendants' arguments on

these and on a few additional points, primarily related to

the instructions and additional instances of allegedly

improper argumentation by the prosecutor. In our view, none

of these points presents a strong claim of error and none,

even if error, involves any serious risk of prejudice. It

was fair for defense counsel to raise these issues in the

course of their thorough and extensive briefs, but they do

not require further discussion by us.

Affirmed.

3 In light of our criticism of the rebuttal argument,
we think it fair to note that the assistant United States
Attorney who argued this case on appeal was not the
prosecutor who presented the rebuttal argument at trial.

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