USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1381
UNITED STATES OF AMERICA,
Appellee,
v.
TERRENCE TAYLOR,
Defendant, Appellant.
__________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
__________________________
__________________________
Before
Torruella, Chief Judge,
___________
Bownes, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________
__________________________
Judith H.
Mizner,
___________________

by

appointment

of

the

court,

for

appellant.
Kimberly S. Budd, Assistant United States Attorney, with
__________________
whom Donald K. Stern, United States Attorney, was on brief, for
_______________
the United States.
_________________________
May 17, 1995
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

appellant Terrence
federally
relation

Taylor on

jury convicted

charges that

he twice

defendant-

had robbed

insured banks, and had carried a firearm during and in

to

the second

robbery.1

Deterrating no

reversible

error, we affirm.
I.
I.

BACKGROUND
BACKGROUND
Following

involve questions

accepted practice

in

criminal

of evidentiary sufficiency, see,

___

cases

that

e.g., United
____ ______

States
______

v. Echeverri, 982 F.2d

_________

675, 676 (1st

States
______

v. Maraj, 947 F.2d 520, 522

_____

Cir. 1993); United

______

(1st Cir. 1991), we limn the

____________________
1The applicable statutes provide in pertinent part:
Whoever,
by force and
violence, or by
intimidation, takes, or attempts to take,
from the person or presence of another . . .
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
[federally insured] bank . . . [shall be
punished as provided by law].
18 U.S.C.

2113(a) (1988).
Whoever, in committing, or in attempting to
commit, any offense defined in [ 2113(a)],
assaults any person, or puts in jeopardy the
life of any person by the use of a dangerous
weapon or device, shall be [punished as
provided by law].

18 U.S.C.

2113(d) (1988).
Whoever, during and in relation to any crime
of violence . . . for which he may be
prosecuted in a court of the United States,
uses or carries a firearm, shall . . . be
[subjected to additional punishment].

18 U.S.C.

924(c)(1) (1988).

facts in the light most congenial to the government.

Appellant and Arnett Lynch,

an inveterate bank robber,

often used drugs at a hangout in Boston, known euphemistically as

"the Spot."
"wanted

On several occasions appellant, emphasizing that he

to learn the ropes," expressed the hope that Lynch would

provide tutelage in how to rob banks.

The
true.

problem with

Cf. Aesop,
___

(predicting

aspirations and

On

that they

January

mentioned

29,

be sorry if

1992,

appellant

the availability

Lynch that his friend, Lucille

Aulmond's

automobile.

appellant that they were

550

B.C.)

our wishes were

of

restated

his

transportation,

Aulmond, had agreed (for

ten dollars) to drive him to the downtown area.

entered

sometimes come

The Old Man and Death (circa

_________________________

that "[w]e would often

gratified").

telling

wishes is

During the

Lynch and Taylor

trip,

going to "do bizank" [a

"bank," according to Lynch's trial testimony]

Lynch

told

slang term for

and "rob the 2T's"

[a reference to two tellers].

After
instructions,

dropping
drove

to

off

downtown

friend,

Aulmond,

Boston and

on

parked

Lynch's
near

the

intersection of Clarendon St. and Newbury St. Lynch walked to the

corner to check a branch office of Bank of Boston, but found that

it had closed for the day.2

When Lynch returned

to the vicinity

of the parked car, appellant joined him on the sidewalk.

men then entered a
____________________

nearby branch of United States

The two

Trust Company

2That bank had been robbed several days earlier by Lynch's

compatriot, William Corgain, who told Lynch that the bank was
easy pickings because only two tellers were on duty.
3

(UST).
Appellant remained hard by
the bank's interior and
the center of the

lobby.

Lynch if he needed
himself; he
begun.

drew a gun

Lynch then

Huppoch and

yelled,

grabbed a customer's briefcase,

let's

it into
go,"

and

of helping

that a

and demanded money.

He

strode to

Nentwig, asked

Lynch proved capable

and advised Nentwig

inserted

"come on,

Meanwhile, Lynch

The manager, Elizabeth

assistance.

teller (Helen Huppoch),

from

the street.

the entrance, watching both

robbery had

approached a

received $2,748

the

briefcase.

the

two

men

Appellant
sprinted

to

Aulmond's car.
Once

inside the

automobile,

happened, and appellant responded:

punched a

guy in the face."

talking and start driving.

wrong

Aulmond asked

"I hit

a guy in the face.

Lynch screamed at
She complied.

what

had

Aulmond to stop

After

Aulmond made a

turn, the men grew impatient, bolted from her vehicle, and

completed their

escape in a

taxi.

They then

split the spoils,

but, there being scant honor among thieves, four men later mugged
Lynch and stole his share of the proceeds.
The

next

percipient witnesses

day,

man

subsequently

as Taylor entered a

at 285 Huntington Ave. in Boston.

identified

by

BayBank branch located

The man approached a teller's

station, shoved aside a customer, Alaina Gurski, and, threatening

to
her

shoot Gurski, demanded that the teller, Raya Aruin, hand over
money.

Clavin,

The man held

a customer

an object

that both

service representative

Aruin and Ellen

working at

a nearby

teller

station, described at

trial as a

gun.

The

robber fled

after receiving $2,458 from Aruin.

In due season, a
for

his role in the

contained
committing

two robberies.

three counts:
the

UST

federal grand jury indicted appellant

count

robbery;

committing the BayBank robbery;

The superseding indictment

1 charged Taylor
count

and Lynch with

charged

and count 3 charged

Taylor

with

Taylor with

carrying a firearm during and in relation to the BayBank robbery.

Lynch entered into a plea agreement and Taylor stood trial alone.

The

jury

found

him guilty

on

all

three

counts.

Following

imposition of sentence, Taylor filed this timely appeal.

Taylor's brief

contains seven distinct

error.

Six of these asseverations

joinder

of

counts

arising

to

appellant's

prosecutor's

not to testify.

We dispose of these

infra Parts III - V).

_____

vexing

point:

his

the

do not

six claims

We then turn

complaint

including impermissible comments

that

the

on his election

See infra Part VI.

___ _____

THE RAISE-OR-WAIVE RULE

THE RAISE-OR-WAIVE RULE
Because many of the

for

robberies,

closing argument contained improper and prejudicial

misstatements,

II.
II.

most

separate

and the jury instructions

necessitate exegetic treatment.

in a decurtate fashion (see
___

relating, vacuously, to the

from two

sufficiency of the evidence,

assignments of

assigned errors were not preserved

appeal by timely objections,

raise-or-waive

rule.

vigilant,

to

not

those

we pause first

In general,
who

sleep
5

the
upon

law

to discuss the

ministers to

perceptible

the

rights.

Consequently, a

litigant who deems himself aggrieved

considers to be an
an erroneous

by what he

improper occurrence in the course of trial or

ruling by the

trial judge

ordinarily must

object

then and there, or forfeit any right to complain at a later time.

The policy reasons behind the raise-or-waive rule are rock solid:

calling a looming error to the trial court's attention affords an

opportunity
occurs.
for

to

correct

problem

before

irreparable

harm

Then, too, the raise-or-waive rule prevents sandbagging;

instance,

it

precludes

decision to refrain from

case

the

turn sour,

a party

from

making

tactical

objecting, and subsequently, should the

assigning error

(or, even

worse, planting

an

error and nurturing the seed as insurance against an infelicitous

result).

So

contemporaneous

viewed,

requirement

objections to improper

the like serves an

and orderly

the

that

parties

questions, comments, and

important purpose in promoting "the

functioning of

raise

our adversarial system

balanced

of justice."

United States v. Griffin, 818 F.2d 97, 99-100 (1st. Cir.), cert.
______________
_______
_____
denied, 484 U.S.
______
36 F.3d

844 (1987); accord United States v. Holmquist,

______ ______________
_________

154, 168 (1st Cir.

1994), cert. denied, 115

_____ ______

S. Ct. ___

(1995).
Despite its
rule is not absolute.

strength and salience,

But, rescue missions are restricted to the

correction of "plain" errors.

Ct. 1770,

the raise-or-waive

See United States v. Olano, 113 S.

___ _____________
_____

1776 (1993); United States v. Mejia-Lozano,

______________
____________

829 F.2d

268, 273 (1st Cir. 1987); Griffin, 818 F.2d at 100; see generally
_______
___ _________
Fed. R. Crim. P. 52(b).
6

The

plain

error

doctrine

concentrates

on

"blockbusters," to the exclusion of "the ordinary backfires . . .

which may mar a trial record."
it,
most

Griffin, 818 F.2d at

_______

appellate courts will notice

egregious circumstances.

100.

Under

unpreserved errors only in the

At a

bare minimum,

therefore,

bevues not seasonably brought to the attention of the trial court

must,

in order

to

command

substantial rights."

intervention,

"affect[]

Fed. R. Crim. P. 52(b).

An unpreserved
to affect

appellate

error is deemed plain

substantial rights) only if the

(and, therefore,

reviewing court finds

that it skewed the fundamental fairness or basic integrity of the

proceeding below in some major respect.
100.

As the

doctrine

Supreme Court itself has

applies

in

those

See Griffin, 818 F.2d at

___ _______
written, the plain

circumstances

in

which,

error

absent

appellate intervention, "a miscarriage of justice would otherwise

result."
Given

United States v. Frady,

_____________
_____
these

jurisprudence
the

parameters,

it

of plain error

court of appeals.

is

not

surprising

invests substantial

See Olano,
___ _____

that "the decision to correct

the

456 U.S. 152, 163 n.14 (1982).

that

the

discretion in

113 S. Ct. at 1776 (observing

the forfeited error [rests] within

sound discretion of the Court of Appeals"); United States v.

_____________

Whiting,
_______
S. Ct.

28 F.3d 1296, 1308 (1st Cir.) (same), cert. denied, 115

_____ ______
378 (1994).

Even when

faced with

an apparently

plain

error, an appellate court "has authority to order correction, but

is not required to do
most

part, this

so."

Olano, 113 S. Ct. at 1778.

_____

discretion should

be exercised

For the

sparingly, and

should

be reserved for the

"`seriously affect
of

correction of those

the fairness, integrity or

the judicial proceedings.'"

few errors that

public reputation

United States v. Young, 470 U.S.

_____________
_____

1,

15 (1985) (quoting United States v. Atkinson,

______________
________

297 U.S. 157,

160 (1936)).
III.
III.

JOINDER AND SEVERANCE

JOINDER AND SEVERANCE
Appellant

excoriates the

government

for

bringing

single indictment that joined a count relating to the UST robbery

with two
vein,

counts relating to the BayBank

robbery.3

In a similar

he calumnizes the district court for refusing to sever the

ostensibly incompatible counts.

Although appellant

The chastisement is unwarranted.

now maintains that

the counts were

improperly joined, he raises this objection for the first time on

appeal.

Thus, we afford

plain error review.

See United States

___ ______________

v. Stackpole, 811 F.2d 689, 693 (1st Cir. 1987).

_________
Separate offenses may be

joined in the same indictment

if the charges are "of the same or similar character or are based
on

the

same act

or

transaction

or on

two

or

more acts

or

transactions connected together or constituting parts of a common

scheme or
counts

plan."

are properly

considered
whether

Fed. R. Crim. P. 8(a).

combined

for trial,

whether the charges are

they involve similar

In determining whether
we historically

have

laid under the same statute,

victims, locations,

or

modes of

____________________

3Appellant does not argue that linking the firearms count

with the robbery counts formed a basis for a claim of misjoinder.
Accordingly, we deem any such argument waived. At any rate, the
firearms charge was inextricably intertwined with the second
robbery, and could hardly be separated from it.
8

operation,
occurred.

and the

time

frame

in

charged

conduct

See, e.g., United States v. Chambers, 964 F.2d 1250-51

___ ____ _____________
________

(1st Cir. 1992); United States v.

_____________
1992).

which the

Gray, 958 F.2d 9, 14 (1st Cir.

____

Under the present circumstances, joining the three counts

lodged against appellant does not constitute plain error.

The
(federally
statute

insured

(18

(downtown

two robberies

U.S.C.

Boston),

(successive days).
to justify joinder.
(finding
insured

banks).

involved the

same type

They were

charged under

2113),
and

took

place

occurred

in

the

Such similarities have

See,
___

joinder proper

in

banks in the greater

the same

the same
same

time

locale

frame

routinely been found

e.g., Chambers, 964

____ ________
when

of victims

F.2d at

1250-51

robberies all

involved federally

Boston area and

occurred within a

ten-week period); Gray, 958 F.2d

____

at 14 (similar).

Furthermore,

the evidence here suggests that the first robbery was, in effect,
a training mission for the second.
would

be plain

parts of

error to

Therefore, we do not think it

conclude that

"a common scheme or plan" as

the two

robberies were

that term is used in Rule

8(a).

Appellant's contention that the district court erred in

refusing to sever the
also

lacks force.

robbery counts, while arguably preserved,4

Though

the Criminal

Rules

empower federal

____________________

4It is unclear whether appellant's severance motion

which,
in terms, did not request that the two bank robbery counts be
tried separately
properly preserved the severance issue for
review.
Because severance was not required in any event, we
assume for argument's sake that the issue was sufficiently raised
in the court below.
9

courts to
criminal

grant relief

from

prejudicial joinder

of counts

in

cases, see Fed. R. Crim. P. 14, severance decisions are

___

ordinarily won or lost in the

denial of
discretion.

a motion
See
___

trial court.

for severance

only

We will overturn the

for a

patent abuse

United States v. Pierro, 32 F.3d

_____________
______

of

611, 616 (1st

Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); United States v.
_____ ______
_____________
Natanel, 938 F.2d
_______

302, 308

(1st Cir. 1991),

cert. denied,
_____ ______

502

U.S. 1079 (1992).

This discretion applies to refusals

to sever

counts as well as to refusals to separate defendants for purposes

of trial.

See, e.g., Chambers,

___ ____ ________

964 F.2d at 1251.

Establishing

an abuse of discretion usually entails a showing that improper or

prejudicial
trial."

joinder likely

"deprived

the defendant

of a

fair

United States v. Nason, 9 F.3d 155, 158 (1st Cir. 1993),

_____________
_____

cert. denied, 114 S. Ct. 1331 (1994).

_____ ______
Appellant faces

a high

hurdle, given

Chambers, Gray,
________ ____

and other cases in which we have upheld the trial court's refusal
to sever counts involving multiple bank robberies.

He strives to

distinguish these

involved more

than two

the ground

that they

robberies, and, thus, yielded telltale

argument fails
that

cases on

for two reasons.

First, common

This

sense indicates

the greater the number of robberies, the greater the danger

of prejudice that joinder poses.

Second, there is no shortage of

sound precedent upholding the joint trial of two

robbery
v.

patterns.

counts in a single indictment.

and only two

See, e.g., United States

___ ____ _____________

L'Allier, 838 F.2d 234, 240-41 (7th Cir. 1988); United States
________
_____________

v. Shearer, 606 F.2d 819, 820 (8th Cir. 1979).

_______
10

Apart

from

this

curious

involved

in the

one bank robbery,

suspecting

of

His bare allegation that, if the jury were to believe

(improperly) be led

for

number

prejudice.

involved in

basis

the

appellant

he was

no

on

incidents,

that

offers

slant

then it

to believe from that fact alone

other,

is simply

not

might also

that he was
This type

of

spillover

is standard

counts

involving discrete

incidents

are linked in a single indictment.

We have repeatedly

held that such

fare whenever

enough.

undue

a garden

variety side effect,

insufficient to require severance.

898 F.2d
498

230, 246 (1st

U.S.

especially

849

See United States v.

___ _____________

Cir.) (collecting cases),

(1990).

weak in

without more,

Moreover,

this instance

the

case

Boylan,
______

cert. denied,
_____ ______

for prejudice

because the

is

is

district court's

jury instructions delineated the separateness of the three counts

and made

it clear that the

jury had to consider

each charge on

plain error in the

joinder of the

its own merits.5

In sum,

we find no

three

counts contained

misuse

of discretion

in
in

the superseding
the

severance.
IV.
IV.

SUFFICIENCY OF THE EVIDENCE

SUFFICIENCY OF THE EVIDENCE

district

indictment, and

court's eschewal

of

no

Appellant challenges the sufficiency of the evidence in

three respects.

He says that the proof did not show (1) that he

____________________

5We also note that, even if the robberies had been charged
in separate indictments, the UST robbery would in all probability
have been admissible to prove preparation, plan, or knowledge
regarding the BayBank heist. See Fed. R. Evid. 404(b).
___
11

participated

in the

UST

BayBank robbery, and/or

robbery

robbery,

that he

(3) that the perpetrator

carried a real gun.

scrutinize the

(2)

In assessing

evidence in

the light

committed

the

of the BayBank

these challenges, we

most compatible with

the

verdict, resolve all credibility disputes in the verdict's favor,

and then reach

a judgment

about whether a

find guilt beyond a reasonable doubt.

rational jury

could

See Echeverri, 982 F.2d at

___ _________

677; Maraj, 947 F.2d at 522-23; Boylan, 898 F.2d at 243.

_____
______
On the

sufficiency issues, a further

appellant's progress.

Where,

sufficiency are unpreserved

obstacle impedes

as here, challenges to evidentiary

the defendant moved for judgment of

acquittal at the end

of the prosecution's case, but

then failed

to renew the motion after presenting evidence on his own behalf

a special variant of

the raise-or-waive rule applies.6

In such

straitened circumstances, an appellate court should stay its hand

unless intervention is
injustice.

necessary to

See United States

___ _____________

(1st Cir. 1990); United States

_____________
(1st

Cir. 1988)

F.2d

182, 185

prevent a

v. McDowell, 918
________

Cir. 1982),

cert.
_____

gross

F.2d 1004, 1010

v. Cheung, 836 F.2d 729,

______

(per curiam); United States v.

______________
(1st

clear and

730 n.1

Greenleaf, 692
_________

denied, 460
______

U.S.

1069

(1983).
A.
A.

The Bank Robberies.

The Bank Robberies.
__________________

Appellant's first

two

sufficiency challenges

can

be

____________________

6Of course, if a defendant files a timely post-verdict

motion
under Fed. R. Crim. P. 29(c), he may escape the
consequences of his earlier procedural default.
See United
___ ______
States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992).
In
______
___________
this case, appellant proffered no such motion.
12

dispatched with
for

the UST

alacrity.

robbery on

The government
the theory

Lynch's felonious conduct.

See 18
___

convicted him on this basis.

Criminal intent
abetting, see
___

prosecuted appellant

that he
U.S.C.

aided

and abetted

2 (1988).7

The jury

Its finding is amply supported.

is an important element

United States v.
_____________

of aiding and

Tarr, 589 F.2d 55,

____

59 (1st Cir.

1978), and the supposed lack of any such intent lies at the heart
of

appellant's

showing

challenge.

that the

knowledge of the

Proof

of

this

defendant consciously

shared the

underlying criminal act,

the principal.

See United States v.

___ _____________

(1st Cir. 1985).

We hasten to

element demands

principal's

and intended to

help

Albert, 773 F.2d 386,

______

add, however, that this

390

showing

may be made wholly on the basis of circumstantial evidence.

We believe

that

here.

Viewed

conclusion

the jury
favorably

evidence suggests that appellant

to

could have
to

the

reached such
government,

the

sought Lynch's help in learning

rob banks, furnished transportation so that the two men could

rob
Lynch

a bank, discussed the

prospect en route,

stood watch while

held up the teller, facilitated a joint escape, and shared

fifty-fifty

in

underbrace the

the

purloined

jury's finding

fruits.

These

that appellant aided

facts

firmly

and abetted

Lynch in the commission of the robbery.

Appellant's
____________________

challenge

to

the

sufficiency

of

the

7The statute provides that:

"Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or
procures its
commission, is punishable
as a
principal." 18 U.S.C.
2 (1988).
13

evidence

that he committed the

eyewitnesses, Aruin and

the

perpetrator.

reliability,

the

BayBank robbery is

jejune.

Clavin, identified him in

Although

jury

was

appellant

plainly

open court as

denigrates

entitled

Two

to

their

accept

the

identification and to find that appellant committed the crime.

B.
B.

The Firearms Count.

The Firearms Count.
__________________

Appellant fares equally poorly

to evidentiary sufficiency.
924(c), requires
person

proof

in his final

challenge

The statute of conviction, 18 U.S.C.

beyond a

reasonable

doubt that

perpetrating the predicate offense used a real gun.

the

See,
___

e.g., United States v. Kirvan, 997 F.2d 963, 966 (1st Cir. 1993).
____ _____________
______
Appellant

tells us

essential fact.
This

that

the government

failed

to prove

this

We do not agree.
court

recognized in

Kirvan

that,

in order

to

______
convict

under section 924(c), the gun must be real, but it "need

not be proven to be loaded

toy

or a

burden

replica will

simply

by

or operable . . .

not do,"

showing

that

."

Id.
___

the prosecution
the

gun

is

While

satisfies its
a

gun.

Furthermore, the government's proof on this point need not

a

level of scientific certainty.

testimony may be employed to propel

in fact a

real gun.8

On the

Id.
___

reach

contrary, lay opinion

a finding that an object

See, e.g., Parker

___ ____ ______

"a

v. United States,
_____________

is

801

____________________

8Kirvan illustrates
the point.
There,
we found it
______
sufficient to justify a conviction that two witnesses identified
the object as a gun, and that it made a loud noise when dropped
(consistent with it being very heavy). See Kirvan, 997 F.2d at
___ ______
966-67.

14

F.2d 1382, 1385

(D.C. Cir.

(1987);

States v.

United

1986), cert. denied,

_____ ______
Jones, 907

F.2d

479 U.S.

456, 460

1070

(4th Cir.

______________

_____

1990), cert. denied, 498 U.S. 1029 (1991).

_____ ______
Silhouetted
assignment

of

eyewitnesses to

against

error

pales

this
into

the BayBank robbery,

backdrop,

appellant's

insignificance.
each of whom

Three

observed the

object gripped by appellant at close range, testified that it was

a gun.
that

This evidence is enough to allow

appellant carried

real gun.

a rational jury to find

Accordingly,

appellant's

conviction under section 924(c) worked no injustice, let alone

clear and gross injustice.

V.
V.

THE JURY INSTRUCTIONS

THE JURY INSTRUCTIONS
When reviewing a

jury,

we

look

fragments.
at

272.

Fed. R.

the

See Boylan,
___ ______

charge

Crim. P. 30

as

a whole,

not

isolated

898 F.2d at 244; Mejia-Lozano,

____________

829 F.2d

has been advanced at trial, see

___

(specifying when and how

taken), even an improper

objections to the

instruction rarely will

the reversal of a criminal conviction.

Kibbe, 431 U.S.

_____

145, 154

to the

in

If no timely objection

charge must be
justify

at

district court's instructions

(1977); United States

_____________

F.2d 212, 216 (1st Cir. 1992).

See Henderson v.
___ _________
v. Weston,
______

960

So it is here.

In this instance, the district court warned the jury to

take

a long, hard look at accomplice testimony.9

____________________

In appellant's

9To be exact, the court told the jury that the testimony of
an accomplice was "to be scrutinized with particular care because
there is an interest that the person had in saying something that
15

current view,
the

court

the instruction

should have

should have been

described

the

more elaborate;

nature of

the

interest in assuaging the government, told the jurors

perscrutation of such

witness'

that their

testimony must be more searching than that

afforded to other testimony, and reminded them in the same breath

that the government had
doubt.
would

Putting aside

to prove its points beyond

the obvious question of

a reasonable

whether appellant

have been entitled to such instructions if duly requested,

the claimed

deficiencies are

precisely the type

of fine-tuning

that is consigned to the scrap heap if not called to the district

court's

attention in a timeous manner.

these alleged

No matter how critically

shortcomings in the court's

charge are evaluated,

they cannot conceivably sink to the level of plain error.

The

raise-or-waive

remaining complaint
that

the

evidence

about the
anent

rule

also

hobbles

jury instructions.
eyewitness

"straightforward," the judge told the jury:

appellant's

After noting

identification

was

There are some four billion people in the

world and in the natural course of things one
would expect some of them may look alike.
But, on the other hand, an experience such as
these witnesses had, may, indeed, make their
observation so intense that it is reliable in
establishing identity beyond a reasonable
doubt.
Although
actuality,
accurately

appellant
an

could

intensely

be

correct

stressful

in

arguing

situation

is

that,
often

in

less

remembered than is a more tranquil one, he makes this

____________________
would be looked on with favor by the government."
16

point at

the wrong

time

and to

the wrong

court.

While

the

challenged instruction may not be a textbook model, we discern no

plain error in it.
VI.
VI.

THE SUMMATION
THE SUMMATION
Having wended

territory,

we now

reach

our way across

more

problematic

topography features a tripartite claim of

government's summation.

flat, easily
turf.

negotiated
Here,

the

error addressed to the

We

start

with

certain

fundamental

verities.

"A

prosecutor is permitted vigorous advocacy, so long as he does not

stray into forbidden terrain."
M.C.I.-Norfolk,
______________
U.S.

873 F.2d 491, 494 (1st

865 (1989).

they may

juries zealously.

Cir.), cert. denied, 493

_____ ______

Thus, prosecutors need not pull their punches;

indeed, they should

Forcefulness

be admired rather than

strike hard

Palmariello v. Superintendent of
___________
_________________

present

in the pursuit of justice

condemned.

blows, he is

their cases to criminal

Yet, while a

not at liberty

prosecutor "may

to strike

Berger v. United States, 295 U.S. 78, 88 (1935).

______
______________
particularly relevant
come at an

to closing arguments,

especially delicate

point in the

foul ones."

This maxim is

for such

arguments

trial process

represent the parties' last, best chance to marshal

and persuade the jurors of its import.

is to

and

the evidence

See, e.g., United States

___ ____ _____________

v. Manning, 23 F.3d 570, 575 (1st Cir. 1994).

_______

Of course, a prosecutor's obligation to stay within the

pale does not exist in a vacuum.

A defendant has a corresponding

obligation

interests.

to

protect his

own
17

When a

defendant

defaults on this obligation by failing to make a

objection to

questionable comments in the

argument, the raise-or-waive

of improprieties
reviewed

under

Consequently,

the

Afterthought

occurring during

notably

reversal

prosecution's closing

rule applies.

allegedly

ungenerous

is justified

portion

of the closing argument

trial's

outcome was likely affected."

contemporaneous

the summation

plain

only

claims

are

error standard.

if the

"so poisoned the

illegitimate

well that the

Mejia-Lozano, 829 F.2d at

____________

274.
In determining whether a prosecutor's
argument
this

require reversal

court considers

special

heed to

prosecutor's

all

under this

conduct

is

hard-to-satisfy standard,

the attendant

factors such

as (1)

miscues in final

circumstances,

the extent

recurrent and/or

to

paying

which the

deliberate;

(2) the

extent to which the trial judge's instructions insulated the jury

against, or
(3)

the

palliated, the possibility of

overall

strength

of

the

unfair prejudice; and

prosecution's

case,

with

particular regard to the likelihood that any prejudice might have

affected the jury's judgment.

See id.; see also United States v.

___ ___ ___ ____ _____________

Giry, 818 F.2d

____

Cir.), cert. denied, 484

_____ ______

(1987).

Using

120, 133 (1st

these

criteria,

we

conclude

appellant's claimed errors requires reversal.

A.

Matters Dehors the Record.

that

U.S. 855
none

of

A.
Appellant
prosecutor referred
the

Matters Dehors the Record.

_________________________
maintains that,
to matters

prosecutor gave a

during

the summation,

not in evidence.

less than completely

the

Specifically,

accurate account of

18

the prefatory conversation between appellant and Lynch on January

29.

Appellant

imploring:
added:

greeted

"Maestro,

"We

this theme, the

so

the

prosecutor

how it's done."

Maestro is Mr.

The

prosecutor reiterated

said,

the point.

men walked into the UST

by

prosecutor

Lynch's nickname.

the organ in his father's church."

jury that, as the two

again said:

show me

know that

Because he plays

Lynch,

Why?

Warming to
He told

the

branch, appellant

"Maestro . . . show me the ropes."

There was, in fact, no evidence of Lynch's nickname and

no evidence that appellant made a

request to be shown the

as
the robbers entered the bank.
_____________________________________
contemporaneous
reversal under

objection, and
the

plain

these

Withal,

there

canards scarcely

error doctrine.

Given

that

ropes
was

no

justify

Lynch

admitted
wholly

to

his vocation

as a

irrelevant to the case.

innocent explanation
________

of the

bank

robber, his

nickname was

Moreover, the prosecutor gave an

moniker and appellant's

own lawyer

twice referred to Lynch in front of the jury as "Maestro."

the second

misstatement, there was evidence

the request

("show me the ropes")

robbery and on
the substance

at least one
of the

As to

that appellant made

previously on the day

earlier occasion.

In

prosecutor's statement was

of the

other words,

true (although

the timing was awry).

On whole-record
question
benign.

that the

review,

allusions to

we conclude

without

matters dehors the

serious

record were

Reversal is totally unwarranted.

B.
B.

The Prosecutor's Rebuttal.

The Prosecutor's Rebuttal.
_________________________
19

Next,
which,

he

namely, (1)

says,

appellant
contained

assails

a minimum

an implication that

people who mugged

Lynch and

the

prosecutor's
of

three

peccadilloes,

appellant had alerted

stole his booty,

rebuttal,

(2) a

the four

suggestion

that

Lynch should be

cell

anemia

and

intimation that

believed because he

had

tested

positive

suffered from sicklefor

HIV,

Clavin, during her testimony,

and

(3)

an

lowered her voice

"out of fear."
These

accusations

do

not withstand

scrutiny.

The

prosecutor made the first of the cited comments without objection

and in direct

response to defense counsel's

argument that Lynch

had turned against Taylor because the latter did not come to

his

aid

our

during

reluctance
made

the mugging.

We

to find plain

to rebut

specific statements

outright

829 F.2d

that

274.

unwillingness.

about Lynch's
remarks

at

Lynch was hoping to

against

Taylor.

See
___

jury's sympathies.
was not out of line.

by defense counsel,

our reluctance

ripens

prosecutor's

into

remarks

no contemporaneous objection.

designed to

rebut the

earn a reduced

Those

defense argument

sentence by testifying

recounted facts in evidence, and

vouching or an improper appeal

Finally, the remark

The

and are

Whiting, 28 F.3d at 1302; Mejia_______

______

Here,

The statement

did not constitute either

expressed

prosecutor's remarks are

Similarly, the

health drew

were obviously

previously

error when a

proportionate to that end.

Lozano,
______

have

to the

about Clavin's demeanor

jury saw and heard her testimony,

20

and

could

determine

United States
______________
("Although

for itself
v.

Mount, 896
_____

it is

the jury's

her state
F.2d
job to

of

612,

mind.10
625

(1st Cir.

draw inferences,

nothing improper in the Government's suggesting

See, e.g.,
___ ____

1990)

there is

which inferences

should be drawn.").
C.
C.

The Fifth Amendment Issue.

The Fifth Amendment Issue.
_________________________

The capstone of appellant's asseverational array is his

anguished assertion

that

the prosecutor's

summation

contained

comments on appellant's election not to testify, in derogation of

rights

secured to appellant under the Fifth Amendment.

the disputed portion of the prosecutor's summation:

Is there any evidence that Mr. Taylor
said, "Oh, my God, I've been misled. This is
not going to be money from his father. I've
got to get out of here.
I've got to warn my
friend, Lucille Aulmond.
She gave me rides
in
the past,
but
this
is
something
different."
He stayed true in his anchor
position.
Mr. Lynch went
up to the
window,
demanded money.
He was very unafraid. Mr.
Lynch demanded money that wasn't his.
Did
Mr. Taylor say:
Oh, my God, I'm going to
leave this place and warn my friend, Lucille
Aulmond? No. He stayed true to that anchor
position. And, in fact, he yelled, "Come on,
let's go."
Lynch points to the door.
Mr. Taylor

We quote

waits there and does he say:

Look, just
because I'm here, I'm sorry what happened. I
didn't know it was going to happen.
Is
everybody all
right?
I know
who was
responsible.
____________________

10While defense counsel did not interject a contemporaneous

objection during the prosecutor's rebuttal, he did bring this
remark to
the court's attention at
a sidebar conference
immediately following the summations.
The judge refused to
resurrect the matter, stating: "I will leave it. It is up to
the jury to make that determination." We agree.
21

He left with the money. . . .

When he
got back to the car, you heard Lucille
Aulmond, and she said, "What happened?" Does
he say: Lucille, he robbed a bank; I didn't
know it was going to happen; I'm sorry. "I
hit a man in the face" was what you got,
instead. Not the truth, just another part of
the lie . . . .
And they drive two blocks away.
Mr.
Lynch gets out of the car.
Does Terrence
Taylor stay with his friend?
"Lucille, I'm
involved in this.
You shouldn't have been
involved.
I didn't even know about it.
Let's go to the police and clear this whole
thing up." He went with the money. Her job
was done.
He took the money. . . .
Did he take
his share of the money and say, "Look, this
is not my money; there it is, police, look
for bait bills; I'm turning back money; I
have nothing to do with this."

It is
comment

a bedrock principle

that a

prosecutor may

not

on a defendant's exercise of the right to remain silent.

See United States v. Robinson, 485 U.S. 25, 30 (1988); Griffin v.

___ _____________
________
_______

California, 380 U.S. 609, 615 (1965); United States v. Sepulveda,

__________
_____________
_________

15 F.3d 1161, 1186 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714
_____ ______
(1994).

Even an indirect or inferential comment on a defendant's

silence can

transgress the Fifth

States v. Hardy, 37 F.3d 753,

______
_____
v. Lavoie,
______

Amendment.

See,
___

e.g., United
____ ______

757 (1st Cir. 1994); United States

_____________

721 F.2d 407, 408 (1st

Cir. 1983), cert. denied, 465

_____ ______

U.S. 1069 (1984).

Because
precipice between

"[t]here

a legitimate

and an impermissible
Sepulveda, 15 F.3d at
_________
this terrain.

is

no

bright

assessment of

encroachment upon

line

the

defense witnesses

the accused's

1186, prosecutors must tread

prosecutor who "attempts to define

22

marking

silence,"

carefully on

exactly the

edge

of

the precipice

approaches

at his

peril."

Rodriguez__________

Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969).
________
_____________
evaluating whether a
whether, in
language
yield
was

prosecutor has

the particular

gone too far,

circumstances of

In

we must

ask

a given case,

the

used by the prosecutor appears to have been designed to

the improper inference, or, if not so designed, whether it

such that jurors would probably interpret it as a commentary

on the accused's
States
______

failure to take the witness stand.

v. Glantz,
______

denied,
______

810

F.2d 316,

322

(1st Cir.

See United
___ ______
1987),

cert.
_____

482 U.S. 929 (1987); United States v. Monaghan, 741 F.2d

_____________
________

1434, 1437 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985).
_____ ______
Notwithstanding these constraints,

no Fifth

Amendment

violation inheres in comments on a defendant's decision to remain

silent in a context outside
Lema
____

v. United States, 987

______________

nothing amiss
remained
not

in a

transgress

trial.

the

F.2d 48 (1st

For example,

Cir. 1993),

prosecutor's observation that

silent during two

defendant's

707,

the legal process.

Fifth

silence at

drug transactions.
Amendment

the scene

because

of the

presence

(1st
at

Cir.
site

1992)
of

drug

(holding

that

transaction

we found

the defendant

The comment did

it

referred

crime rather

See id. at 56; see also United States v. Ortiz,

___ ___
___ ____ _____________
_____
714

in

defendant's
"patently

participation"), cert. denied, 113 S. Ct. 1005 (1993).

to

than at

966 F.2d

silent

implied

_____ ______
In
challenged

this

case,

statements

during, and after the

the

government

referred to

insists

appellant's

UST robbery, not to his

that

the

silence before,

silence at trial.

23

When a

prosecutor's comments, fairly viewed,

two plausible meanings,

of
See
___
300,

which

is forbidden,

one of which is

are susceptible to

unexceptionable and one

context frequently

determines meaning.

Sepulveda, 15 F.3d at 1187; United States v. Lilly, 983 F.2d

_________
_____________
_____
307 (1st

Cir. 1992).

Where

feasible, a

reviewing court

should construe ambiguity in favor of a proper meaning:

[A] court should not lightly infer that a
prosecutor intends an ambiguous remark to
have its most damaging meaning or that a
jury, sitting through a lengthy exhortation,
will draw that meaning from the plethora of
less damaging interpretations.
Donnelly
________

v.

DeChristoforo, 416
_____________

Lilly, 983 F.2d at 307.

_____
desirability in

U.S.

637,

647 (1974);

accord
______

This rule of construction has heightened

the absence of a

contemporaneous objection for,

when the target of the comments does not interrupt and register a
timely objection,
arguer
words."

the

it seems

benefit of

especially appropriate to

every

plausible

Sepulveda, 15 F.3d at 1187.

_________

interpretation of

proper

to

notice, to

bring a

dubious comment,

the immediate

her

We are especially reluctant

to "fish in the pool of ambiguity" when, as now, the

party failed

"give the

complaining

easily corrected

attention of the

on

trial court.

Id. at 1188.
___
Evaluated against

this

benchmark, we

do not

believe

that the quoted remarks trespassed on appellant's Fifth Amendment

rights.
a

While a suspicious mind could construe what was said as

comment

on

appellant's

decision

not

to

testify,

the

prosecutor's words are more plausibly interpreted as a comment on

appellant's silence during the commission of the crime.
_____________________________________

After

24

all, Taylor had labored to develop a defense based on his lack of

foreknowledge

concerning Lynch's felonious

intent.

Appellant's

silence throughout the commission of the crime tends to undermine

this defense, and

the prosecutor's comments

were most likely

clumsy effort to seize upon this weakness.

We will

not paint the

contemporaneous

objection, we

benefit

legitimate,

of

prosecutor's words.

lily.
must cede

plausible

On this basis, we

question did not amount

Given

the absence

to the

of a

government the

interpretation

of

the

hold that the remarks in

to a constitutionally prohibited comment

on appellant's declination to testify at trial.

We add that, even
the line,

our

if the prosecutor's comments crossed

traditional

three-part

reversal would be unwarranted.

repeated several times, there

analysis

suggests

that

First, although the comments were

is no reason to conclude

that the

prosecutor intentionally drew attention to appellant's silence at

trial.
judge

Second, despite the

instructed the

lack of an

jury with

objection, the district

painstaking care

regarding the

government's burden of proof, appellant's presumed innocence, and

his constitutional right to refrain from testifying.
things,

Among other

the judge admonished that "no adverse inference is to be

drawn from his exercise

of his election not to take

the stand."

We are confident that this explicit instruction was sufficient to

combat

any impermissible

inference that

might have

been drawn

from the prosecutor's statements.

Last

but

far from least, see Mejia-Lozano,

___ ____________
25

829 F.2d

at 274 (explaining that "the strength of the government's case is

an

important

factor

borderline rhetoric")
if

misconstrued,

diminished

in

was

affected

unequivocal

appellant's
of the
and

Moreover, several witnesses to

presence

and

suggested

described his

his

substantial

complicity

evidence

the

likely

the possibility that

by the potency

testimony

considering

effect

the comments, even

substantial

rights

government's proof.
corroborated

of

on

is

Lynch's

many

points.

the UST robbery noted appellant's

behavior

in

against

the

in

crime.

appellant,

way that
In

we

strongly

view

find

it

of

the

highly

unlikely that the jury could have been swayed by the prosecutor's
amphibolous remarks.11
VII.
VII.

CONCLUSION
CONCLUSION
We

appellant was

need

no

further.

fairly tried and

below is, therefore,

Affirmed.
Affirmed.
________

go

For aught

justly convicted.

that

appears,

The judgment

____________________

11If this were not enough, the general principles governing

plain error review caution us in this case against exercising our
discretion in Taylor's behalf.
At worst, the prosecutor's
comments were veiled and any impermissible implication arising
out of them was attenuated. We do not believe that this line of
argument could have "seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings." Olano, 113 S. Ct.
_____
at 1776 (internal quotation marks omitted).
26