USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2018
UNITED STATES,
Appellee,
v.
RAYMOND MORENO, JR.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Boudin, Circuit Judges.
______________
____________________

Lawrence P. Murray with whom Henry F. Owens, III and Owens

___________________
____________________
_____
Associates were on brief for appellant.
__________
Ralph F. Boyd, Jr., Assistant United States Attorney, with w
__________________
A. John Pappalardo, United States Attorney, and Michael J. Pelg
_ _________________
________________
Assistant United States Attorney, were on brief for appellee.
____________________
May 6, 1993
____________________

BOUDIN, Circuit Judge.

_____________
appeals his
of

conviction in the district

an unregistered

ammunition
Moreno
verdict;

by

firearm,

a convicted

argues

that

that

the

characterizes

as

comments by the
fair

trial.

Defendant Raymond Moreno,

court for possession

26 U.S.C.
felon,

evidence
court

18

5861(d), and
U.S.C.

was lacking
erred

evidence of
prosecutors to

in

"prior

Jr.,

to

922(g)(1).
support

admitting
bad

of

what

acts;" and

the jury deprived

the
he
that

him of

For the reasons that follow, we affirm Moreno's

convictions.
I.
Moreno
trial was

first

argues

insufficient.

that the

evidence

Our inquiry

introduced at

is a limited

one:

to

decide whether there was evidence from which a rational trier

of

fact could have concluded beyond

a reasonable doubt that

Moreno possessed the firearm

and the ammunition.

inferences

and

resolved,

must

be

in favor

drawn,
of the

Legitimate

credibility determinations

verdict.

See United States v.

___ _________________

Anguilo, 897 F.2d 1169, 1197 (1st Cir.), cert. denied, 111 S.
_______
____ ______
Ct. 130 (1990).
From

the

government's

presented no evidence

of his own),

have found the following.

a

group of

patrol

five

in the

evidence

at

Lenox Street

(Moreno

a reasonable jury

On the evening of

law enforcement

trial

officers,

could

April 18, 1991,

while on

Housing Development

foot

in Boston,

-2-2-

Massachusetts, heard a series of gunshots coming from another

area within the development.

Garvey,
shots;

Perkins and
the other

Three of the officers, Officers

Devane,

two,

ran in

the

Officer Murphy

direction of

and Trooper

the

Drummy,

returned to their parked cruisers.

As the
in

three officers were running

the direction

males,

all

of the

wearing

shots, they

black

down Hammond Street

observed

hooded sweatshirts

three black
or

jackets,

emerge from a courtyard in the direction of the gunshots, run

across

Hammond

Street

buildings across the

the

three men

manner.

There

as
was

defendants together
two

and

disappear

street.

One of the

running in
only

near

the

line in

cluster

officers described
a "hunched

briefest interval

disappeared from view.

of

over"

when

the

Almost at once,

of the three officers, joined by Officer Murphy (who had

left his cruiser to assist in the foot pursuit), saw the same
three men running through a parking lot behind the cluster of
buildings, and gave chase.
The officers then saw one of the three men veer off from
the

other two and

run in a separate

direction.

The second

and third men were then seen by the officers to come together
briefly and appeared to pass an object between them.

Officer

Murphy, who was closest to the two individuals, described the

item being exchanged as a dark object about one to one-and-ahalf feet long.

The individual who took this object then ran

-3-3-

off

through a grass courtyard.

the

object

surrendered.

immediately
That

The individual who passed on

stopped,

raised

individual was

his

arms

later identified

and

as the

defendant, Raymond Moreno, Jr.

had

Officer Garvey,

in order to

circled

to

courtyard.

around

the

cut off any

opposite

Officer Garvey soon

end

escape route,
of

saw a black

the

male wearing a

black hooded sweatshirt enter the courtyard from

which Moreno had just
several

times to

been arrested.

stop, Officer

grass

the area in

After telling

Garvey saw

the man

the man
make a

gesture as if to throw an object aside, and then heard a soft

thud

on the

identified as
along

ground

Frederick Hardy,

with Moreno

search of the area

to

nearby.

but is

not a

The

man

was

who was tried

party to

arrested

and

and convicted

this appeal.

revealed a .32 caliber pistol

about five

eight feet from where Hardy stopped and made the throwing

gesture.
When arrested,
long

object

Moreno.

Hardy was not in possession of the foot-

that the

officers

had seen

him

receive from

The officers then searched the path between the area

of Moreno's arrest and the spot at which Officer Garvey first

observed Hardy.

Hidden in bushes

along that direct

the officers found a double-barrelled sawed-off

a 12

route,

shotgun with

1/2 inch barrel, fully loaded with ammunition.

This is

-4-4-

the firearm and

ammunition which Moreno

is charged in

this

case with having possessed.

While
Devane was
had

gone

Hardy

were being

in search of the first

off

discovered
wearing

Moreno and

in

a separate

a black

a black

male,

arrested,

of the three runners, who

direction.

sweating and

hooded sweatshirt,

Officer
out

found a

the

and

some bushes.
in a cruiser,

semi-automatic pistol on

near where the individual had been hiding.

Devane

of breath

hiding in

After arresting the individual and placing him

Officer Devane

Officer

the ground

The pistol was in

lock-back position, smelled of gunpowder, and was out of

ammunition, indicating

that it recently had been discharged.

The arrested individual was identified as Steven Fernandes.

Several officers
in

the

middle

of

then went back to

the

Lenox

Housing

a central courtyard
Development.

This

courtyard was in the general area of the gunshots, and it was

immediately accessible from the spot where the three arrested
men were first observed

by the officers.

In

the courtyard,

the officers found discharged cartridge casings.

casings were

matched by

a ballistics expert

These spent

to the

pistol

that was found next to Stephen Fernandes.

At the

police station

after his arrest,

Moreno, after

receiving his Miranda warning, denied knowing either Hardy or

_______
Fernandes.

He claimed that he had been standing alone in the

housing development when he

heard shots and started running.

-5-5-

At

trial, however,

testified that
Fernandes

he had

a number

of

resident of

the housing

seen Moreno together

times

addition, Officer Dreary of

in March 1991 he stopped a

over

the

development

with Hardy

prior

year.

and
In

the Boston Police testified that

red Isuzu Trooper; Hardy was

the

driver and Moreno was a passenger in the front seat.

We

think

a reasonable

jury

could

conclude beyond

reasonable doubt from this evidence that Moreno possessed the

sawed-off

shotgun

and

its

ammunition.

Officer

Perkins

testified that he "saw [the two men] meet and . . . could see
them

having some

enough

kind of

to describe

the

exchange," but
object.

he was

Officer

not close

Murphy, who

was

closer to the men, did observe the object--which he described

as "about a foot and a half [long]" and "dark
was

in color."

It

found directly in the path Hardy took after the exchange

with

Moreno, prior

to his

Once the police testimony

apprehension by

Officer Garvey.

is credited, Moreno is effectively

tied to the loaded shotgun.

The direct evidence as to the
other

evidence.

First,

running away were

Moreno

fleeing from

shotgun was reinforced by

and

the individuals

an area in

which shots

seen
had

been fired--shots that the jury could infer had been fired by
one of
three

the group, since

matched

gunshots.

shell

Second,

a pistol

casings

belonging to

found

in

the

one of
area

of

the
the

Moreno's false denial after his arrest of

-6-6-

prior relationship

guilty

with

Hardy and

mind and helps rebut any inference that he was merely

in wrong place at wrong time.

by

Fernandes suggests

these

secondary

The direct evidence, bolstered

inferences,

was more

than

enough

to

support the jury's verdict.

II.
Next, Moreno argues that the trial court committed error
by

allowing

the government

to

introduce

evidence of

the

gunshots heard

by the officers prior to Moreno's arrest, the

semi-automatic

pistol found

shell casings matching that

with

Fernandes and

pistol.

the

spent

Describing the evidence

as proof of "other crimes" under Fed. R. Evid. 404(b), Moreno

argues that this
propensity

to commit

issue in the

case.

"other crimes,
"the

conformity

404(b).

crime

of

rather than

acts" is

a person

therewith."
if

to his character
to any

Rule 404(b) provides

wrongs or

character

however,

evidence related only

offered for

Such

in

legitimate

that evidence

not admissible to
order

evidence

to

"other purposes."

of

prove

show action

is not

or

in

prohibited,

Fed.

R. Evid.

See United States v. Rodriguez-Estrada, 877 F.2d 153

___ __________________________________

(1st Cir. 1989).

In this case, the government's evidence of the gunshots,
Fernandes' pistol, the matching spent ammunition, and Hardy's
weapon

supports a

chain

of inferences

independent of

any

tendency of the evidence to show bad character.

The evidence

-7-7-

permits the
in

inference that Fernandes, with

attendance,

was

gunshots, and that

the

scene of

officers.
armed

somewhat
along

discharge

In turn,

Fernandes had

individual

when

discharged

the

three men

the

running together from

first observed

the facts that Fernandes and

were fleeing

discharged three rounds of

by

the

Hardy were

together after

ammunition made it

more likely that the object Moreno was seen to pass

to Hardy

was indeed

the shotgun later

See, e.g., United States v.

___ ____ ______________
Cir.

who

the three men were

that

and that

the

Hardy and Moreno

1987) (the

Currier, 821 F.2d

_______

proffered evidence

"closely intertwined

of

found nearby.
52, 55

other bad

(1st

acts was

with the charged offense of possession,

providing both significant contextual material and proof that

the defendant possessed the gun").
An

example

inference.

may

be

of

help

in

understanding

the

If a defendant were charged with shooting a guard

in

the

course

of

bank

robbery,

it

would

surely

be

permissible to show that he was caught fleeing from the scene

of

just-robbed

bank

possessed weapons.

The

the

jury that he was

two other

persons

who

defendant could certainly

an innocent bystander

from a dangerous scene.

the possession

with

both

argue to

who was fleeing

But the fact of the bank robbery and

of the weapons by

others arguably associated

with the defendant would surely be relevant evidence that the

jury

could consider

along with

other evidence

against the

-8-8-

defendant.
testimony

If the

other evidence included

some eyewitness

that the defendant had run with the others and had

appeared to be carrying a weapon,

the facts would not be far

from our case.

Indeed, not

only are

the gun

relevant

to the

government's

ordinary

risks

presented

especially tame in this

by

case.

shots and

case against
Rule

404(b)

other weapons
Moreno but

the

evidence

are

The hand-guns were

not found

with

Moreno but with other defendants and the gun shots were

apparently fired by Fernandes.

suggested "other crimes"
Hardy.

The usual taint

that the jury will think

not by Moreno but by

absent.

innocent

If

the evidence
Fernandes and

of "other crimes" evidence--the risk

the defendant a bad man

committed other crimes--was, so

largely

In other words

the

because he

far as it threatened Moreno,

jury

otherwise

thought him

an

bystander, it had no reason to attribute to him the

crimes of Fernandes and Hardy.

Of course, if the jury accepted the officers' testimony,
it could conclude that Moreno was
fleeing

not a bystander innocently

from danger but rather was associated with the other

defendants,

had run with them, had handed off his own weapon
____

to Hardy, and had after his arrest falsely denied knowing the
other two.

If so,

the evidence of

gunshots furnished

the

occasion and context for the flight by all

three defendants;

and

two made

the

weapons possessed

by the

-9-9-

other

it more

likely, if only slightly, that Moreno too might be armed.

At

least the

of

jury

gunshots and

was entitled

other weapons

to

consider the

and draw

evidence

such inferences

if it

chose to do so.
In

short,

the evidence

theory entirely

separate from any

Moreno's "character."
is substantially
judgment
judge.

outweighed by

Fed. R.

cast upon

its prejudicial effect

discretion of

Evid. 403; United States v.

_____________

inference of
in

the trial

Simon, 842 F.2d

_____

warning the jury not to

bad character.
this

instruction, requesting

is a

A defendant is entitled on request

to a limiting instruction,

counsel

admissible on

light it might

the broad

552, 553 (1st Cir. 1988).

Moreno's

clearly

Whether the relevance of such evidence

largely within

forbidden

was

case

did

only a far

Fed. R.
not

seek

broader one to

draw the
Evid. 105.
such

an

which he

was not entitled.1

III.
The

most

statements
jury.
evidence

troubling

made by

the

aspect

of

this

government during

appeal

concerns

argument to

the

In his opening remarks, the prosecutor stated, "[T]he

will show

that

[the police

officers] were

doing

____________________
1Asked what limiting instruction he would like, Moreno's
counsel asked for one telling the jury that evidence of
Fernandes' pistol and the spent shell casings "is not to be
considered against the case of Mr. Moreno" or "in no way can
be used by this jury" against Moreno.
Since the evidence
could properly be used against Moreno, the district court
quite properly refused this instruction.

-10-10-

their jobs protecting the community that

has been plagued by

violence, senseless violence, shootings and killings.

That's

why they were there and that's why we're here today."
There

was, of

course,

no

evidence

"senseless violence" or "shootings

in this

case

of

and killings," and it was

patently improper for the prosecutor to make these remarks to

the jury.

The argument, playing

upon the jury's

reaction to neighborhood violence,

legitimate

argument

and cannot

States
______

Johnson,
_______

952

v.

(admonishing
other

than to

jury,

and

F.2d

was outside the bounds of

be

565,

condoned.
574

"prosecutorial

commentary

inflame the

passions and

to interject

innocence of the accused"

issues

emotional

(1st

See
___

United
______

Cir.

1991)

serving no

purpose

prejudices of

broader than

the

the

guilt or

(citations and internal quotations

omitted)), cert. denied, 113 S. Ct. 58 (1992).

____ ______
We do not believe,
The

however, that reversal is warranted.

experienced trial judge, who was in the best position to

appraise the prejudicial

thought

a curative

impact of the

instruction

objection was made,

prosecutor's remark,

the correct

at the end of the

remedy.

When

prosecutor's opening,

the trial judge forcefully cautioned the jury:

I must give you some instructions to disregard some
of the things that were said in the opening
statement.
There were references to violence in
the area, to other incidents in the area than those
that are the subject matter of this trial. I will
instruct you to disregard all of those references.
Some were made very early in the opening statement,
others were made in the course of it and toward the
-11-11-

end of the opening statement. We are here to try

on the evidence with respect to the charges against
these defendants, only the charges against these
defendants.
It is not your function or the
function of the court
or anyone else to be
concerned about anything other than the charges
against these defendants and the evidence bearing
upon that.
You will erase from your mind the
arguments about other violence, and the phrase
"senseless killings" was used.
Those are not
matters to be considered by you as you weigh and
evaluate the evidence that relates to this case.
We think that
was

adequate

this powerful and

to

dispel

prosecutor's remarks.

any

contemporaneous instruction
prejudice

caused

See United States v. Giry,

___ ______________________

by

the

818 F.2d

120, 134 (1st Cir.), cert. denied, 484 U.S. 855 (1987).
____ ______
What
warning

is

no less

disturbing

embodied by this

is that,

instruction, the

even

after the

prosecutor again

departed from the straight and narrow in his closing.

course of arguing that
but

deliberately

concealed,

carried away--continued:
Mr.

the shotgun was not just

off."

fact that maybe

his wife or his three kids

out and look at the gun and get their heads blown

The court then

and the case

oblique

tossed away

prosecutor--apparently

"Forget about the

Hooker [who lived nearby] or

might come

the

In the

proceeded.

on this

issue

gave a lengthy

curative instruction,

The curative instruction was rather

but

it

was

lengthy,

and

we

are

-12-12-

satisfied

that the jury got

the message to

ignore what had

just been said.2

If

we thought

there might
the

that this

well be a basis for

future, see United States

___ _____________

Cir.
to

second foray

reversal as a deterrent for

v. Capone, 683
______

1982), even though this remark

Moreno for nothing in

did not directly relate

where Mr. Hooker or

his

might find it; that was the act of another defendant.

In context, however, the

to have been

sudden

prosecutor's remark does not appear

a deliberate disregard of the

implied warning.
a

582, 586 (1st

the evidence suggested that Moreno

had carelessly concealed the weapon

family

was deliberate,

Rather,

expression of

court's earlier,

although improper it was seemingly

indignation

at the

tail-end

of a

legitimate larger point.

Finally,

in

appraising possible

ignore the fact that the case

we

said in Giry, 818

____

prejudice, we

do not

against Moreno was ample.

F.2d at 133,

As

"prejudice that survives

the charge is deemed less likely to have affected the outcome

of the trial where strong evidence supports the prosecution's
case".
have

Here, both

judges who join in this

independently reviewed

testimony in this case,

the

majority opinion

transcripts

of the

in addition to the briefs;

trial

and both

____________________
2The judge was, at the same time, cautioning the jury to
give no weight to any personal opinions expressed by the
prosecutor, then or earlier. After completing the curative
instruction, the judge gave the lawyers the opportunity to
ask for more, and neither requested any addition.
-13-

-13-

are satisfied that the

and that the
of

case against Moreno was

quite strong

objectionable remarks, in context and

in light

the instructions given by the trial judge, would not have

swayed the jury.

As

the

evidence

directly identified

already

by two

the area after gunshots.

to hand

over a

shows,

police officers as

He was seen by one

foot-long object

sawed-off shotgun in question

the

recited

to a

Moreno

was

running from

of the officers

second man, and

was found near the path

the
where

third one had run shortly before he too was apprehended.

This

evidence was

coupled with

other evidence

possession of

weapons by

together with

Moreno, and Moreno's denials that

other

two--denials

showing the

Moreno's companions, their

proved

to

be false

by

flight

he knew the

two

different

witnesses.
The trial of this
10 days.

The

relatively simple case stretched over

trial time was devoted entirely

evidence, since the defendants

no

witnesses of

their

own.

to government

did not testify and presented

The

government

put

on

21

witnesses, including

five officers

who were present

at the

time that Moreno was pursued and whose key testimony has been
summarized
excuse

above.

the

arguments

We also note that, although this does not

government's
before the

missteps,

jury that

including cross-examination

defense

were not

counsel

made

beyond criticism,

inappropriately injecting racial

-14-14-

issues

into the

case.

In sum,

the government's

substantial and the imperfections in counsel's

not all on one side.

On

balance,

we are

the prosecutor's missteps

did not deprive

trial or a

The

were by

just outcome.

by a detailed

a 10-day trial that

exposition of

This court has found

by prosecutors
instruction

rhetoric were
convinced that

Moreno of a

fair

prosecutor's improper remarks

and large aberrations, met

instructions, in

case was

by prompt countervailing
was otherwise consumed

the events of

April 18,

1991.

that even more objectionable statements

did not

warrant reversal where

a corrective

was given, e.g., Giry, 818 F.2d at 120 (argument

____ ____

comparing charged

drug offenses

the judge"), or no
States
______

to an "agree[ment]

timely objection was made,

v. Machor, 879 F.2d

______

945, 955 (1st

to kill

e.g., United
____ ______

Cir. 1989) (drugs

"poisoning our community, and our kids die because of this"),

cert. denied, 493 U.S. 1094 (1990).
____ ______
within

its discretion in

this case

prosecutor's misstatements did not

to require a new

trial.

The district court acted

in concluding

that the

so "poison[] the well" as

United States v. Mejia-Lozano, 829

______________________________

F.2d 268, 274 (1st Cir. 1987).3

____________________
3We have reviewed the other remarks of the prosecutor
objected to by Moreno, including the distinct claims that the
prosecutor disparaged defense counsel and engaged in improper
expressions of personal belief. In some instances, we think
the prosecutor made permissible arguments and in others, all
milder than the two discussed in text, we think the curative
instructions given were adequate.
-15-15-

Nevertheless,

for the

sake of

future cases,

we think

this worth saying:

only

bad

repeated
court

and

inflammatory comments to the jury are not

tactics in

the case

after warnings,
gradually

prosecutor's office.
contests

where not

undermine

every remark

important than victory.

not blind)

the

especially if

the patience
reputation

be sure,
can be

are hard

of the
of

the
fought

carefully weighed.

in a criminal case, fairness

is more

Although we view the evidence as far

more substantial than does

some (but

hand but,

will exhaust

Trials, to

But for the government

at

our dissenting colleague and have

faith in corrective

instructions, the

government would do well to take this warning seriously.

Affirmed.
________

-16-16-

TORRUELLA, Circuit Judge (Dissenting).

_____________
to my
so

esteemed colleagues in the majority, I must dissent.

reluctantly

because

although

characterization of the strength

see ante
___ ____

trial.

with

their

of the evidence against Moreno,

during the

however, is not sufficient to

overcome my

nary

at what I
but

mild

perceive to be
admonitions

prosecutorial transgressions,

LEXIS

disagree

same sans the breaches committed

____

My reticence,

perturbation

See,
___

I do

at 13, I agree that in all probability the jury verdict

would have been the

with

With all due respect

on

the virtual condonation,

our

part,

almost to the point

of

repeated

of a pattern.

e.g., United States v. Agudelo, No. 90-1465, 1993 U.S. App.

____ _____________
_______
4970 (1st

testimony);

Cir.

March 18,

United States v.
_____________

1993) (admission
982 F.2d 681 (1st

1993)

(admission of

Williams, 985 F.2d

________

improper

634 (1st Cir.

of improper evidence); United States v. Smith,

______________
_____
Cir. 1993) (improper argument by

prosecutor);

United States v. Hodge-Balwing, 952 F.2d 607, 611 (1st Cir. 1991)
_____________
_____________
(improper argument

by prosecutor).

The majority

itself points

out

similar cases

appreciate

falling

the extent

(citing Machor, supra,

______ _____

of its

404(b)

converted, not to

and

pattern,

perniciousness.

and Giry, supra, as

____ _____

arguments by prosecutors).
that Rule

within this

but fails
See ante
___ ____

say subverted,

error

at 14

examples of "fierce"

Compounding this problem is

the harmless

to

doctrine

into a wall

the fact
have

behind which

been

the

Government apparently can continue ad infinitum to take pot shots

____________
with impunity.

-16-16-

I register my

protest because our

past cautions, timid

as

they were, see, e.g., Agudelo, slip op. at 6 n.7 ("this is not to
___ ____ _______
forget our complaint . . . about giving
at the apple:

push for evidence believed to be damning, and then

say it was meaningless");

and

the government two bites

jeopardize a

unjustifiable"),

Williams, slip op. at 8-9

________

prosecution with
have

not only

such evidence is

been

ignored,

("to infect

unwise and

but alas,

have

probably

encouraged this

continued conduct.

I fear

that the

current warning, ante at 15, although somewhat more forceful than

____
those

that

have come

before, is

likely

to further

erode our

institutional credibility, if

the past is any

indication of the

future.

I believe

the

More

actions

in

importantly,

the

present

case

that

prosecutor's

unconstitutionally

prejudiced

Moreno's right to a fair trial.

To
facts

set the
is

trial in

appropriate.

running from the sound

of

proper perspective,
Three

unidentified

a review

of the

persons were

of gunfire; at some point

seen

thereafter one

these persons appeared to pass a one to one-and-one-half foot

________

long dark object

to another person who kept on

running with the

unknown object; the passer then stopped running, was arrested (we
know

not for

identified
Hardy,

what

crime at

as Moreno;

the receiver of

arrested coming
throwing
turned out

away

this

point), and

person later

identified as

the unknown object,

from where Moreno

an object,

eventually

Frederick

was intercepted and

was detained; Hardy

which was

was

later recovered

was seen

and which

to be a .32 caliber pistol; no other weapon was found

-17-17-

on or near Hardy, but a search of his suspected

loaded, double
along the

barrel, sawed off

direct

path

from

shotgun and its ammunition

route revealed a

shotgun, hidden in

where Moreno

was

the bushes

arrested;

are the weapons with which

this

Moreno is

charged with illegally possessing.

At trial, the prosecutor
against Moreno a third
_____
of a

introduced as Rule 404(b) evidence

weapon found elsewhere in

_________

third individual, Stephen Fern ndes.

_____

the possession

This weapon was

mm. caliber pistol, as well as 10 casings fired from

a 9

that weapon

at the scene of the original shooting.

The prosecutor

also

made improper

into three groups, at different points.

appellant to the

First,

he

fall

linked

rampant violence in the community, insisting at

opening argument that "the evidence

were doing

statements, which

their jobs

will show that [the

protecting the

community

police]

that has

been

plagued by violence, senseless violence, shootings and killings."

He continued "[t]hat's why
here

today."

why we're

The prosecutor referred to the officers as members

of an anti-gang unit
not

they were there and that's

to "reward"

on four occasions, and instructed

the

defendants for

prosecutor injected violence at

example,

that

"[i]f you're

baseball

bat, it's not

baseball

bat to

bash in

discarding

the jury

weapons.

every opportunity, stating,

walking

down

the

street

illegal to possess

it.

If

somebody's head, that's

that "Mr. Hooker or his wife orhis three kids might

with

The

for

you use the

illegal," and

come out and

look at

the gun and get

their heads blown off."

In describing

-18-18-

the shotgun,

which had

"[s]omebody

not

lever, crack open

shotgun shells

into the shotgun.

that for a reason.

Just remember that these

themselves with three guns."

to do

middle

was pull

of

the prosecutor

had to move that

put those two

had

been fired,

that barrel and

Somebody

does

three people armed

The prosecutor proceeded "[a]ll you

the trigger.

that housing

argued

Think

development

armed

about going

into the

with those

weapons

together and firing one of these weapons."

Second, the prosecutor improperly vouched for the government

witnesses, intimating that they possessed some information beyond

the evidence

presented.

that appellant
warranted
overstating

passed on

that the

their testimony."

the

appellant's counsel

the "cylindrical object"

to another individual,

police "knew

what the object was.

Third,

In discussing

what it
He

the prosecutor

was, but

later asserted

they're not

"[t]hey knew

They were going to find it."

prosecutor

urged

because defense

the

jury

to

disregard

attorneys "are paid

to see

see

[sic]

things

prosecutor
"talking

in

contended
out of

at

both

different
one

way."

point that

sides of

his

Furthermore,
defense

mouth."

counsel

The

the

was

prosecutor,

discussing a defense argument, explained "I'm not quite sure what

that meant, but I would suggest that a part of it was designed to

divert your attention."
As

the

majority points

appealing

to

the

"patently

improper"

jury's
and

out,

fear

the

of

prosecution's statement

neighborhood

"outside

the

bounds

violence

was

of

legitimate

Id. at pp. 10-11.

___

"[N]o less

-19-19-

argument and cannot be condoned."

disturbing,"

finds

warned]

prosecutor again

narrow

the
in

sufficient

the majority,

his closing."
basis for

is

departed

Id. at
___

"reversal

that

12.

as a

"even after

from
This

[being

the straight
would

deterrent," the

have been

majority

tells us, only if "this second foray [had been] deliberate."

This
caused

observation is
harm to

irrelevant if

defendant, and

harm

the

and

Id.
___

prosecutor's statements

undoubtedly was

caused by

these and other statements.

My colleagues place too much faith on the practical value of

the curative instructions given by the trial judge, the second of

which

was

objected.4
92-1587
trial

admittedly
Id.
___

at 12;

(1st Cir. Feb.

judge's

prosecutor's

"rather

as

to

the

matter

see also United States v. Akinola,

________ ______________
_______
2, 1993) ("it is

instructions

putative violation

have established

oblique"

the combination of the

that

would

harmless").

that juries tend to

render

the

Empirical studies

consider relevant evidence

in a case even when

it is ordered stricken from the record.

Reid Hastie, Steven

D. Penrod and

Jury
____

87, 231 (1983).

In fact,

No.

See
___

Nancy Pennington, Inside the

___________
juries are even

more likely to

consider such evidence if admonished by the court not to consider

it, than if

no specific instruction is

given.

See Saul
___

Kassin

____________________

4 The majority indicates that they "are satisfied that the jury
got the message to ignore what had just been said." Id. at 12.
___
I would ask rhetorically what there is in the instruction to
cause such reassurance.
Certainly nothing in its obliqueness,
and I would think, little in its length would commend such a
conclusion.
-20-20-

and

Lawrence

Wrightsman,

The American
Jury
On
Trial:
__________________________________

Psychological Perspectives 108-09 (1988).

__________________________
to

a criminal

indicating

defendant

that

in Moreno's

juries

tend

to

Even more troublesome

position are

forget

the

the studies

source

of

the

information they remember, and are often unable to recall whether

the source of information came from a witness, or from one of the

attorneys during the opening statement or
at 106.
made

These studies

by counsel

also show that

in opening

closing argument.
juries treat

statements as

Id.
___

statements

fact even

though no

evidence is later introduced to support the attorney's assertion.

Id.
___

Harmful impact

may also result from improper remarks

opening statement, caused by

the

a psychological phenomenon known as

"primacy effect," which is a tendency to make snap judgments

based on information presented early

Once

in an

jurors form

in the trial.

first impression,

reject facts that challenge

they

Id. at
___

often discount

their views, and instead

see also
_________

N. Anderson,

or

fill their

trial memories in ways that favor their initial reaction.

134-35;

134.

Id. at
___

Foundations
of Information
_____________________________

Integration Theory 179-81 (1981).

__________________
Our cases

repeatedly have

ignored the practical

effect of

improper

argument and

impropriety as

evidence

harmless error

on the

jury

by excusing

and then chiding

such

the prosecutor.

See, e.g., Agudelo, supra; Williams, supra; Hodge-Balwing, 952 at

___ ____ _______ _____ ________
_____________

611 ("we review only 'blockbusters: those errors so shocking that

they

seriously

integrity

of the

affect

the

fundamental

proceedings conducted

fairness

and

basic

below'").

The studies

common sense

conclusion

-21-21-

discussed

above clearly

with empirical data:

and

the

prejudicial influence of such argument

evidence should not be

have done,
studies lead
case:
fact

demonstrate a

as it flows more
to

easily disregarded in
deeply than we have

one inescapable

conclusion in

the manner we
assumed.5

The

regard to

this

there is no way of knowing if the stricken remarks were in

not influential in prejudicing

the jury in

a powerful and

lasting way, and thus tipping the balance against him.

To this prejudice

we add the impact on the

called 404(b) evidence.

jury of the so-

This evidence proffered under the

aegis

of this rule consisted of:

(1) testimony that pistol shots fired

______

by

heard

unknown

persons

were

by

police

officers prior

to

_______

Moreno's arrest; (2) a 9 mm. caliber pistol that was found on the
______
ground near another individual; and
_______
matching

that pistol,
______

which

(3) ten spent shell

were found

near

area from

casings

which

Moreno and three other men were seen running from after the shots
were heard.

As noted, supra at 15, the 9 mm. pistol was found in

_____

possession of a third person, Stephen Fern ndes, who was not even
tried

together with appellant.

probative

in establishing

All this evidence was allowed as

"other

crimes, wrongs

or acts,"

by
__

____________________

5 Thus, the "powerful and contemporaneous instruction" referred

to by the majority, ante at 11, was indeed such, but not as
____
intended.
It served to remind the jury "about other violence"
and senseless killings. Id.
___

Indeed, these studies

starkly reveal the dilemma
that
attorney's face in this area of the law. They must choose either
to ask for a curative instruction, increasing the impact of the
improper argument or evidence, or remain silent, in which case
they waive the issue on appeal, see United States v. Tejeda, 974
___ _____________
______
F.2d 210, 215 (1st Cir. 1992).
-22-22-

Moreno, with
______

regard to

charges

loaded sawed-off shotgun.

__________________________

that he
__

This is

illegally possessed

claimed

to

be

evidence

unrelated to Moreno's character or propensity to commit crime and

thus admissible

for

nebulous "other

purposes."

Fed. R. Evid.

404(b).
This is clearly improper

use of Rule 404(b).

was not

even proof

of wrongful

evidence

of other

wrongful acts

presence.

Because Rule

prosecutors

seek

committed

to

404(b)

introduce

but, at

by third persons
_________________
should

only be

evidence

of

best,

in Moreno's
invoked

prior

bad

when

acts

by the defendant, it is error to analyze this evidence

under that rule.

Cir. 1982)
"asking

acts by Moreno,
_________

The evidence

United States v. Moccia, 681

_____________
______

(Breyer, C.J.) (Rule 404(b)

the jury to

F.2d 61, 63 (1st

forbids prosecution from

infer from the fact

that the defendant has

_____________

committed

a bad act in the past, that he has a bad character and

therefore

is more

charged")

(emphasis added).

evidence is
probative.

likely

relevant, and
The

to have

committed

the bad

The proper inquiry

whether it

is more

act

now

is whether the

prejudicial than

correct answer to the first question

is no, and

the answer to the second is yes.

At

best

the

evidence

shows

mere

commission of other crimes by other persons.

____________
_____________
conclude

presence

during

the

It asks the jury to

that appellant somehow was guilty of that crime, and by

extension,
presence

guilty
at the

establish

of

the

scene

of

current
that

crime.

crime,

of

appellant's guilt of that crime.

Appellant's
course,

does

mere

not

See United States v.

___ _____________

-23-23-

Aponte-Su rez, 905 F.2d 483, 491 (1st Cir.) (mere presence at the
_____________
scene of a crime and
is

not proof of

guilt), cert. denied, 498

____________

also Nye & Nissen v.

____ _____________
Furthermore, and

United States, 336

_____________

with all

present at the scene

more likely

knowledge that a crime was to

be committed

U.S. 990 (1990); see

___
U.S. 613, 619

(1949).

due respect, concluding

that persons

of a shooting, and thereafter

fleeing, are

to be carrying weapons

just as likely that persons fleeing

is highly illogical.

It is

the scene of a shooting will

be either unarmed victims or by-standers, and in fact, it is more

probable that they would have more

of an incentive to flee,

faster, precisely because they were unarmed.

__

and

Thus, the inference

that it is more likely that appellant is guilty of the

felon-in-

possession crime because he was fleeing from the scene of another

crime committed by other persons is insupportable.

The evidence

is constitutionally and factually irrelevant.

Even if the evidence was relevant, its probative value pales

in comparison
that the

to its

prejudicial effect.

evidence may

speculation about
Inferences and

have stems

Any probative

from extended

the probabilities of

value

inferences and

people carrying weapons.

speculation, however, are infected

too easily in

this case by the transference of guilt from the shooting of a gun

by a third

party to

that a jury will

the charged crime

draw all doubt

of possession,

against appellant.

ensuring

See
___

United
______

States v. St. Michael's Credit Union, 880 F.2d 579, 602 (1st Cir.
______
__________________________
1989)

(danger

guilt

by

that jury

might convict

association).

When

added

defendant on
to

the

theory of

impact

of

the

-24-24-

prosecutor's

improper argument concerning senseless killings and

community violence, the prejudicial impact becomes manifest.

The

majority opinion chooses to ignore the prejudicial effect of this

evidence,

concluding

that

the

defense

somehow

waived

any

consideration of the issue.

Lastly,

let us return to the trial itself, and consider the

overall impact of these

even without
not

I have already

the Rule 404(b) evidence,

withstand a

Rule 29

cylindrical object and

can conclude that

motion.

The

The evidence

concerning the

perfectly valid, and

possession of a

conclusion can only

inferences, though,

conceded that

appellant probably would

the shotgun is

the charged

occurred from it.

extended

breaches.

shotgun in

be reached

because no witness

one

fact

through

testified that

they actually saw Moreno with the weapon, but only that he passed
something
Given

to someone

the

improper

prejudice
argument and

discounted

that

the

who

was later

already

found

infused

evidence,

I do

required

would

make the

jury

into the
not

more

required inferences against appellant,

weapon.

trial

see how

inferences

conclusion were not themselves infected.

prejudice

nearby the

by

it can

supporting

draw

thus tipping the

be

this

In all likelihood
predisposed to

the

this

the

balance

against him.

What we have here is a vulnerable case requiring the jury to

make substantial inferences in order to convict.
beefed

up

its case

by clearly

The prosecution

improper statements

at crucial

stages of the trial, and threw in pseudo 404(b) evidence for good
-25-25-

measure.

Although the defendant did not

he is asked to assume
is not my

idea of a

practical experience.
clear message

create this situation,

all the risks it generates.

fair trial.
It

regarding

is past

Somehow this

It contradicts all logic

due

the standards

and

that this

court send

that are

expected of

litigator whose motto is that "[t]he United States wins its point
whenever justice

is done

its citizens

in the courts."

better that this message be given in this case

It

is

than in a case of

more societal consequence.

This
be ordered.

appellant did not get a just

trial.

A new one should

-26-26-