United States v. Sullivan ( 1996 )


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    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.





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    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



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    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



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    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





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    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



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    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



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    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.

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    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.



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    "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




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    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



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    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-

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    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.

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    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.

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    (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:



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    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



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    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.



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    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.

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    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. _________







































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