United States v. Kirvan

July 1, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2069
UNITED STATES,
Plaintiff-Appellant,
v.
PAUL J. KIRVAN,
Defendant-Appellee.
No. 92-2289
UNITED STATES,
Appellee,
v.
PAUL J. KIRVAN,
Defendant-Appellant.
ERRATA SHEET
The opinion of this court issued on June 29, 1993 is amended as
follows:
On page 3, line 7, "erred in a granting" should read "erred in
granting".
On page 3, line 20, "the money in into a bag" should read "the
money into a bag".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2069
UNITED STATES,
Plaintiff-Appellant,
v.
PAUL J. KIRVAN,
Defendant-Appellee.
No. 92-2289
UNITED STATES,
Appellee,
v.
PAUL J. KIRVAN,
Defendant-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Cyr and Boudin, Circuit Judges,
and Burns,* Senior District Judge.
Richard Abbott for Paul J. Kirvan.
Timothy Q. Feeley, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for the United
States.
June 29, 1993
* Of the District of Oregon, sitting by designation.
BOUDIN, Circuit Judge. Paul Kirvan appeals from a jury
verdict finding him guilty on one count of armed bank
robbery, in violation of 18 U.S.C. 2113(d). The jury also
convicted Kirvan of carrying a firearm during the commission
of a crime of violence, in violation of 18 U.S.C. 924(c),
but the district court set that conviction aside. On cross-
appeal, the government argues that the trial judge erred in
granting a judgment of acquittal on this second count. We
affirm the bank robbery conviction, reinstate the firearm
conviction and remand for resentencing.
The facts, limited to those pertinent to the issues on
appeal, can be briefly stated. A lone masked robber held up
a savings bank in Lowell, Massachusetts, at 3:25 p.m. on
August 20, 1991. The surveillance photographs taken by a
bank camera showed the robber wearing a distinctive rain hat
and holding what appeared to be a large handgun. Several
persons in the bank saw the same robber and the gun. At one
point the gun fell to the floor with a loud thump as the
robber climbed over a counter. The robber collected cash
from several drawers, stuffed the money into a bag and fled
from the bank with the cash and his gun.
At about 3 p.m., before the robbery, an FBI special
agent named Gerald Mohan happened to be driving out of a
parking lot not far from the bank. For plausible reasons,
unrelated to the bank robbery, Mohan began to follow an
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Oldsmobile that turned out to be registered to Kirvan. Soon,
the Oldsmobile stopped, and a passenger wearing a rain hat
left the car, transferred to a Chevrolet, and both cars were
driven back toward the bank. Mohan briefly lost contact with
the cars and then located the Chevrolet leaving the bank
parking lot. As Mohan's car passed the Chevrolet going in
the opposite direction, he saw in the driver's seat a man
wearing a rain hat.
Mohan later selected Kirvan's photograph from an array
as the man whom Mohan had seen in the Chevrolet leaving the
bank. Through other witnesses, there was evidence that the
driver and another man had abandoned the Chevrolet (which was
stolen) around 3:30 p.m. and switched to another car; one
young witness to the switch of cars testified that one of the
individuals who left the Chevrolet looked "Portuguese." The
police later discovered a bag and a police-band radio scanner
in Kirvan's Oldsmobile.
On October 3, 1991, the grand jury handed down an
indictment charging Kirvan with armed bank robbery and using
or carrying a firearm during a crime of violence. After a
six-day trial, the jury returned guilty verdicts on both
counts. Pursuant to Fed. R. Crim. P. 29(c), Kirvan filed a
motion for judgment of acquittal. The district court judge
denied the motion as to the bank robbery count but granted a
judgment of acquittal on the firearms count. On the latter
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count, the trial judge ruled that there was insufficient
evidence for a jury to conclude that a genuine firearm was
carried during the robbery.
Kirvan's first argument on appeal is that a statement
made by the prosecutor during summation was improper. The
statement concerned Mohan's ability to identify the driver of
the oncoming Chevrolet where the distance between Mohan's car
and the other car was approximately 3 to 4 feet and both cars
were travelling in opposite directions between 30 and 35
miles per hour. The prosecutor said to the jury, "I'm not
going to talk in terms of feet or seconds or milliseconds. I
want you to put yourselves in the place that [Mohan] was in."
As defense counsel did not object to this statement during
trial, the question is whether allowing it to stand was plain
error. United States v. Mateos-Sanchez, 864 F.2d 232, 240-41
(1st Cir. 1988).
Kirvan's brief relies primarily on cases that forbid so-
called "golden rule" arguments in which plaintiffs or
prosecutors ask the jury to put itself in the place of the
victim. E.g., Forrestal v. Magendantz, 848 F.2d 303, 309
(1st Cir. 1988). But "golden rule" cases do not apply where,
as here, the jury is asked to put itself in the place of an
eyewitness. In this situation, the invitation is not an
improper appeal to the jury to base its decision on sympathy
for the victim but rather a means of asking the jury to
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reconstruct the situation in order to decide whether a
witness' testimony is plausible.
Kirvan also asserts that the prosecutor engaged in
impermissible vouching for the credibility of Mohan. Mohan
had been attacked vigorously on cross-examination with
questions designed to suggest that his reasons for following
the Oldsmobile were fictitious, that he had not had time to
see Kirvan's face, and that in other respects he lacked
credibility. In summation, the prosecutor spoke favorably of
Mohan, saying to the jury:
" . . . It tells you something about his
professional instincts; they turned out
to be right. Tells you something about
his sense of duty. It tells you he
cared, that he gave a damn, that he got
himself involved.
He didn't wait or let someone else worry
about it. You saw him on the stand
cross-examined for how many hours. You
saw the attempt to condemn him, to
criticize him, to embarrass him, to
humiliate him, to imply incompetency, to
imply deceit.
I suggest to you that Gerry Mohan
should not be condemned; he should be
commended. That he shouldn't be
criticized; he should be applauded. And
he shouldn't be embarrassed or
humiliated. He should be proud, and you
should be proud of him."
This argument does not constitute improper vouching; the
prosecutor did not assert his own opinion of Mohan's veracity
as a witness. If any criticism could be made, it is that the
"let someone else worry" and "commended . . . applauded"
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commentary by the prosecutor is inappropriate cheerleading;
but this is hardly plain error, and, given the assault on
Mohan's integrity, the remarks may be fair comment.1 As for
the prosecutor's argument that events proved Mohan's
instincts to be sound, it may well be false logic from a
philosopher's standpoint but it is perfectly good folk wisdom
and is neither an appeal to emotion nor personal vouching.
Finally, Kirvan argues that the prosecutor engaged in
impermissible conduct in recounting testimony. As already
noted, a young witness, actually one called by the defense,
described the driver of the Chevrolet as appearing
"Portuguese." During closing argument, the prosecutor told
the jury:
"[The witness] also said that the man, to
him, looked like his ancestry was
Portuguese. I ask you to look at Paul
Kirvan. Imagine him with his hair a
little longer like it is in the photos.
Imagine him with his skin a little more
tanned like it is in this photo. Imagine
him with a mustache, and imagine him with
a beard that you can see from your jury
box. Imagine him with a growth of a day
or so of beard and ask yourselves whether
[the witness'] characterization--although
it may not have been technically
accurate, ask yourselves whether it was
descriptively accurate."
1In his summation, defense counsel called Mohan a liar
and deceptive, stupid or both. While these remarks followed
the prosecutor's, they reflect the thrust of defense
counsel's earlier cross-examination of Mohan.
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No objection to these comments was made at trial. On appeal,
Kirvan does not claim that allowing the witness' response was
error. However, Kirvan contends that prosecutor's statement
(quoted above) during closing argument either invited the
jury to speculate about identity based on a vague criterion
or was racially inflammatory and deprived the defendant of a
fair trial in violation of the United States Constitution.
There may be some force to the notion that
"look[ing] . . . Portuguese" is not much of a criterion for
identification, although the description came from a defense
witness. But defense counsel had ample opportunity in
closing argument to point out this weakness to the jury. The
defense brief on appeal imaginatively refers us to cases that
preclude a jury from viewing an infant to determine
paternity; but that rule is not followed everywhere and rests
in part on considerations of policy. In any event, counsel
did not object to the prosecutor's statement at the time it
was made, and the statement is not so vague or misleading as
to constitute plain error.
The claim that the statement was a racial slur is more
serious in that the "[r]acial fairness of the trial is an
indispensable ingredient of due process and racial equality a
hallmark of justice." United States v. Doe, 903 F.2d 16, 25
(D.C. Cir. 1990). However, the prosecutor's statement was
not in fact a racially inflammatory remark; it was a
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permissible, "unembellished reference to evidence of race [or
ethnicity] simply as a factor bolstering an eyewitness
identification of a culprit." Id. Indeed, we think that
this charge against the prosecutor should not even have been
made.
The government's cross-appeal presents a far more
difficult question. Following the jury verdict of guilt on
the second count (carrying a firearm during a crime of
violence), the court granted a judgment of acquittal finding
"no evidence that the defendant actually carried a firearm,
as opposed to a toy gun." On appeal, we examine the evidence
in the light most favorable to the government. If a rational
trier of fact could have concluded that every essential
element of the crime charged was proved beyond a reasonable
doubt, then the issue should have been left to the jury.
United States v. Medina-Garcia, 918 F.2d 4, 6-7 (1st Cir.
1990).
The firearm statute, 18 U.S.C. 924(c), provides in
relevant part that whoever carries a firearm during the
commission of a crime of violence shall be sentenced to an
additional five years' imprisonment (or more if the weapon is
of a type here not involved). It is common ground that the
gun need not be proved to be loaded or operable in order to
convict, United States v. Gonzalez, 800 F.2d 895, 899 (9th
Cir. 1986), but that a toy or replica will not do. United
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States v. Westerdahl, 945 F.2d 1083, 1088 (9th Cir. 1991).
The district court summed up the evidence and held it
inadequate to permit a reasonable jury to find, beyond a
reasonable doubt, that Kirvan carried a real gun as opposed
to a toy.
The government's riposte is to point to a square holding
by then Circuit Judge Scalia in Parker v. United States, 801
F.2d 1382, 1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070(1987), that non-expert testimony affirming that a robber
used a gun is enough. The holding was followed without much
discussion by the Fourth Circuit in a case where five
witnesses had described the object as a gun. United States
v. Jones, 907 F.2d 456 (4th Cir. 1990), cert. denied, 111 S.
Ct. 683 (1991). Kirvan in turn points us to cases which, in
upholding convictions under this or similar statutes,
recounted or relied upon testimony from a firearms expert or
at least a witness who saw the robbery and claimed to know
about weapons. E.g., United States v. Buggs, 904 F.2d 1070(7th Cir. 1990); Westerdahl, 945 F.2d at 1088.
If fake guns were extraordinarily rare in bank
robberies, it might be fairly easy, absent affirmative proof,
to dismiss the possibility that the gun was a toy. The jury
had no actual data, which might be inadmissible in any
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event,2 although it does have considerable latitude in
making intuitive judgments about how the world works. United
States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.
1985), cert. denied, 475 U.S. 1029 (1986). Nor does policy
tilt the balance, as it might if we faced an issue where the
government had ready access to direct evidence (e.g., whether
a bank is federally insured) and no excuse for leaving the
matter in doubt. Of course, Kirvan has such access but we
will not decide the matter by relying upon his failure to
produce the gun for inspection.3
We need not decide here whether the government's burden
could be met merely by unembellished lay testimony that "the
robber carried a gun." In this instance, the object was
identified by two witnesses as a gun; one said that it was
black and had a five inch barrel and the other, who was
closer, supplied more detail: he said that it appeared
"shiny, silver" in color; that it was "[l]arge, very large
2See 1 McCormack, Evidence 210, at 949-50 (4th ed.
1992) (cases discourage mathematical proof and probability
data in criminal cases). Such data may exist. E.g.,
Washington Post, October 2, 1986, p. C1 ("Neil Hurley, chief
of the grand jury section of D.C. Superior Court, said that
at least 10 percent of the armed robbery cases that he sees
involve fake guns.").
3The problem with an adverse inference is the Fifth
Amendment's bar against compelled self-incrimination. See
Griffin v. California, 380 U.S. 609 (1965). But cf. Barnes
v. United States, 412 U.S. 837 (1973) (upholding an
instruction that unexplained possession of stolen property
permits an inference of knowledge).
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for a handgun"; and that when it fell to the floor, it made
"[a] very loud noise. Heavy object hitting the floor."
Without deciding whether less would do, we think that
this detail permitted a rational jury to conclude that this
was a "real" gun: it was a plausible size, colored like a
real gun, and quite heavy. One witness could easily describe
gun metal as black and another as silver. Although some toy
guns might be of similar size and color, the heavy weight
certainly would not be as common in a toy. And while a good
replica might still fool a witness at a distance, the chances
of error decline where, as here, the witness saw the gun,
stationary and at a close distance, for a least half a
minute.4
In sum, we think that the jury, which concluded that the
object was a real gun "beyond a reasonable doubt," cannot be
deemed irrational. We understand why the trial judge came to
the opposite view. But judgments of acquittal are subject to
de novo review, United States v. Reed, 977 F.2d 14, 18 (1st
Cir. 1992), and if deference is owed to anyone it is to the
jury. In Judge Prettyman's widely cited formulation, "if a
reasonable mind might fairly have a reasonable doubt or might
fairly not have one, the case is for the jury, and the
4Kirvan says that a robber would be unlikely to leave a
real gun unattended on the floor for 30 seconds; the
government says that a robber would not leave a replica
unconcealed for any length of time. These inferences, if
they do not precisely cancel out, are not conclusive.
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decision is for the jurors to make." Curley v. United
States, 160 F.2d 229 (D.C. Cir.), cert. denied, 331 U.S. 837(1947).
For the reasons stated above, the judgment of conviction
on count one is affirmed; the directed judgment of acquittal
on count two is set aside and the jury verdict on that count
is reinstated; and the case is remanded to the district court
for resentencing.
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