United States v. Bonneau ( 1993 )

USCA1 Opinion

          March 18, 1993    UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________


        No. 92-1935


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   DENNIS BONNEAU,

                                Defendant, Appellant.


                                 ____________________


                                     ERRATA SHEET

            The opinion of this  Court issued on February 24, 1993 is  amended
        as follows:

            Page 2,  line 9:  Insert  a footnote after  the word "testify"  to
        read:  
            "The  Assistant  United   States  Attorney  who  represented   the
        government on appeal did not represent the government at trial."







































        February 24, 1993       [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________


        No. 92-1935

          


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   DENNIS BONNEAU,

                                Defendant, Appellant.


                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

            Peter Goldberger, Pamela A. Wilk  and Law Office of  Alan Ellis on
            ________________  ______________      _________________________
        brief for appellant.
            A.  John Pappalardo,  United  States Attorney,  and  Dina  Michael
            ___________________                                  _____________
        Chaitowitz, Assistant United States Attorney, on brief for appellee.
        __________



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                                  __________________



                      Per Curiam.   We have carefully reviewed the record
                      __________

            and briefs and  find no merit  substantially for the  reasons

            stated  by  the district  court.   We pause  to add  only two

            observations.

                      1.    The prosecutor's  reference  to  Ms. Aguiar's

            recent trial, immediately followed by the inquiry whether Ms.

            Aguiar  had ever told anyone her present version, was, in all

            probability, an  improper  comment  on  Aguiar's  failure  to

            testify1.   We are convinced, however, by the strength of the

            evidence   against  defendant   and   the  court's   curative

            instruction that  the error was harmless  beyond a reasonable

            doubt, and  the  court did  not  err in  denying  defendant's

            motion for a mistrial.

                      2.   The fact that Aguiar had been convicted of the

            charges  for  which  defendant  was  on  trial  was  properly

            admissible under  Fed. R. Evid.  609 for impeachment.   Here,

            where defendant said he had no objection to the  conviction's

            admission, defendant did not object  to the question asked or

            request a limiting  instruction, and the  prosecutor did  not

            argue  any improper  inference should  be drawn,  it  was not

            plain error  for the  court  to fail  sua  sponte to  give  a
                                                  ___  ______

            limiting  instruction.   United States  v. Ramirez,  963 F.2d
                                     _____________     _______

            693,  702-03  (5th  Cir.)  (no  error   to  omit  sua  sponte
                                                              ___  ______

            instruction  concerning  co-defendants' guilty  pleas), cert.
                                                                    ____

            denied, 113  S. Ct. 388  (1992); United  States v.  Sides, 944
            ______                          ______________     _____

                                
            ____________________

            1.  The Assistant United States  Attorney who represented the
            government  on appeal  did  not represent  the government  at
            trial.















            F.2d 1554, 1561-62 (10th Cir. 1991);  United States  v. De La
                                                  _____________     _____

            Cruz, 902 F.2d 121, 124  (1st Cir. 1980).  Nor  did counsel's
            ____

            failure  to   object  or  request   a  limiting   instruction

            constitute  ineffective  assistance.   See  United States  v.
                                                   ___  _____________

            Rogers, 939  F.2d 591,  594-95 (8th Cir.)  (tactical decision
            ______

            not  to  request limiting  instruction  on  effect of  guilty

            plea), cert. denied, 112 S. Ct. 609 (1991).
                   ____  ______

                      Affirmed.
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